Bantariza v Habre International Trading (Civil Suit 499 of 1992) [1995] UGHCLD 3 (3 November 1995)

Full Case Text

#### THE REPUBLIC OF UGANM

#### JET TOE HIGH COURT OF AT KAMPALA.

### "CIVIL SUIT'■NO, 499/92

RUDAGARA1IA BANTARIZA FRAHCIS^ki:M Hiimini: n nunn tPIOiTIIF VERSUS

# SABRE JJWRJW^'CffAL7TRABINGn^: :tis nns: *it* s\$ ns*t* ns*t* nntlEIENMNT BEFORE: - THE HONOURABLE MR, JUSTICE I. MUKANZA.

# J U B G II E N T:

The plaintiff brought this action against the defendant claiming general damages for trespass and for an order against the said defendant for the removal of illegal structures from the suit land either by the defendant itself or failing that by the plaintiff at the defendant's cost\*

According to the plaint the plaintiff is the registered proprietox 05 of plot No\* 4805 Kyadonde Block 244 Kampala which is approximately 0\*309 hectares in area\*

On or about early in 1990 the defendant after the plaintiff had been given a lease offer to the sane nentioned land continued to the tresspass upon part of the same by building there on two illegal **10** structures and at first even hindered the plaintiff and his surveyors from surveying part of the said land so that plaintiff could get a oortifioatG of title thereto to enable bin to comenoe development thereon\*

The plaint further showed that while the plaintiff had all his 15 land surveyed and got a certificate of title the defendant has noverless continued its trespass on part of the plaintiff\*s land by keeping the illegal structures thoroon thus hindering the plaintiff **20** directed to pull down illegal structures upon the plaintiff's land and after defendant had itself fai? id to pull down the structures after defendant- being ordered to do so\* from planning for development of all the land by unlawful means even interfered with the City Council of Kampala law officers who had been

**•• /2\***

In his written- ^tartoaoirt of defonoo the defendant expressly denied each and every allegation in the plaint*9* The defendant denied Over trespassing on the suit land and would put the plaintiff to strict proof there of.

**s^"**

I 2 **i**

Alternatively the defendant stated that it is the registered owner Q5 of the land comprised in Kyadondo Block 244 and that it is on that land that it built buildings but such buildings are not illegal as approved plans are extent leasehold and register No. 1380 folio 14 Plot No. 3779 Kyadondo Kampala listriot. The areas approximately 0.690 of hectare. to

The defendant ended by stating that the suit is wholly misconceived and discloses no cause of action against the defendant. The plaintiff called the evidence of PW1 Paulo Bakashabaranga as PHI and tho plaintiff examined himself as PW2. Ibr tho defence the defendant company called the evidence of one Hassan Abdullah Wl *9* then John Musingo BW2 and 15 one Bernard DW3.

Before the ccmencenent of this suit the following issues were framed and agreed upon by the parties-

(i) who of tho two parties owns the suit land.

- (ii) whether the suit land claimed is tho sane 20 as that referred in the defence. - (ill) any reliefs the parties are entitled to.

#### Cff ISSUE NO. 1\*

PW2 testified that he had an agent who told bin he had land ho was selling at Muyenga and that the land was in the names of Hdbro 25 International the defendant. The agent who wanted to sell the land to PW2 was never called as a witness and it appears apparently was referring to tho land under dispute. PW2 and PW1 testified that there fraudently obtained and the some was forged. that there was no minute from the Uganda Land Commission to show that **—A** That the certifionto of title obtained by the defendant W1 was Evidence of PW1 showed wore alot of forgeries at tho tino and the land office had to closo.

the land was leased to DW1 but when cross examined PW1 replied that he did not report the natter for investigation because of the nany forgeries and that any lease must have a minute. And that the nimute in this particular incident was recorded by one Onyango the Secretary to the Uganda Land Commission. And further replied that when Habre the defendant company applied did not know that there were forgeries and further asserted that if he was processing the papers he could not process the lease without reference to the National Water and Sewerage Corporation who were truestee of the ULC in the land in dispute.

However under section 199 of the Registration of Titles Act DW1 as the Managing Director of the defendant company committed a criminal offence of obtaining certificate of title by fraud. He should have been arrested and prosecuted this was not done. This meant DM did not obtain title to the suit land fraudulently. 205

And under section 74 of the Registration of Titles Act Cep states -"lists of certificates of title called in for cancellation or rectification and not sent and : it shall bin ?? exhibited in the office of titles and shall be advertised in the gazette and in such newspapers and at such time or times as the Registrar thinks fit."

Besides that exhibits D5 a letter written by the Secretary Uganda Lend Commission to the defendant was encouraging the latter to continue with its development pending rectification of the minute at the next ULC neeting.

Also the report Exhibit D7 by DW2 to the Deputy Town Clerk refuted the claim by Mr. Bantariza PW2 that the building/structures on the plot under dispute were hurriedly put at night by the defendant company as being false. Habre had plans approved and also had title to the suit property according to DW2.

There was even EXP 8 which was apparently tendered in evidence on behalf of the plaintiff. This Exhibit in my considered opinion favours the defendant's case. In that letter M/S. Hebre was recommended on purely $.../4.$

$10$

$05$

**t** I 4 i —

cocuiSBion nay decide\* The letter was addressed to the Secretary Uganda Land Commission from tho Ag# Chief planner. planning grounds to bo considered for extension of the lease as tho

was no fraud on his part whan this suit property was registered the plaintiff's title is impeachablo. Be that as it may tho land title in respect of PW1 is stated t@ have been registered on 16th December 1991 whereas that of the defendant was registered much earlier on 14th March, 19^5- Since I had found that there

Morever in their loter to Hajji Hassan of the defendant company. M/S\* Banturisa was given a lease offer to part of the mentioned suit land and that Habra International was trespassing on the said land and built thereon illegal structures\* I have dealt with the question of illegal structures\* There was evidence to the effect that there were no illegal 15 structures and that the defendant could not trespass oh his own land see Gandesha 1986 HCB p 46. Byampgisha & Rwaheru advocates writing about the suit land CR v 1380, counsels folio 377 KJradondo Block 244 Jjoon to recognise the fact that Francis

It was submitted on behalf of the plaintiff that the plaintiff is the registered proprietor of the suit land and that he got registered through 20 proper procedure and that the land originally belonged to the National Water Sowerage Corporation\* As already stated above the defendant got title of the disputed land earlier than the plaintiff\* It was submitted that the minute awarding the lease to the defendant belong to a different person a certain technical organisation, but no evidence was led to the faulty. who signed tho minute was engaged in very many malpractices and that was why the certificate was called for cancellation, I have dealt with this issue in my judgment'-earlier on\* effect that tho original minute granting the lease to the defendant was It was also submitted that the Secretary Uganda Land Commission

As to the accusation by the plaintiff that defendant's lease was 30 eancollecU It is that the lease would be renewed oh the completion of this case. It had expired\* There was evidence from DW2 to the effect

true the plaintiff passed through the plaintiffs passed through proper channels when he secured the lease for his land but the ovidence show that he got the title after the defendant had acquired his. In the promises I am of the view that the defendant company owns the suit land.

On issue No. 2 as to whether the suit land is the same as that referred to in the written statement of defence. I must point out that I was not assisted on this issues by the counsels who nerely simply submitted generally without referring to the issues.

However FM2 testified that he was approached by a certain agent who 10 told him he had land to sell. Ho was shown a land title in the names of Habre International the defendant. He went to the land office and discovered that the title in the names of Habre International were forged and that the land belonged to The National Water Sewerage Corporation under the Ministry of Minoral and Water Corporation. He contacted the Minister Kitariko who showed lack of interest in the natter. He enquired 15 from the staff there. He was informed the land that was fenced was the one the Ministry was interested in whereas that which was unfenced that was where his interest lay. Then he got the forms and applied for the land as per the lease offer exhibit P4, and went ahead and paid the 20 necessary fees exhibit P5. Later he was told by the commission that the land he had applied for was too big and they could not allocate it to him. The plot was going to be divided into 3 plots. He would take one portion and the rest would be given to others. PW2 had applied for 0.309 h hectares whereas Habre had applied for 0.600 bectares. Then he said he 25 applied for more land then Habre.

The evidence of DW1 was that it was Uganda Law Commission who allowed him to get the land. He applied in 1984 and get the land in 1985. He paid dues to the Uganda Land Commission and that it was in respect of Plot 3779 Kyadondo Block 244. The land is one and half acres and when he occupied it it was a bush. After that he made development to the land and made and submitted his plans to the Kampala City Coumoil. $\rm{Ho}$ $.../6.$

$\mathcal{L} = \mathcal{L}$

put up there two different houses, laid water pipes installed electricity and telephone and lives in there.

In paragraph 6 of its written statement of defence which paragraphs includes the referred to amendment.

"Alternatively the defendant states that it is the registered owner of the land comprised in Kyadondo Block No. 244 and it is on that land comprised that is built buildings but such buildings are not illegal as approved by plans extent leaseholder register No. 1380, 14 Plot No. 3779 Kyndondo Kampala District. The areas are approximately 0.600.

According to the testimonies of both PW2 and DW1 it would appear $10$ that portions of their pieces of land neasure differently. PW2 said wanted to apply for a big portion of land and was given the third portion which in ny humble opinion measured 0309 hectares whereas DW1 testified first that he applied for $1\frac{1}{2}$ hectares of land and that his land necessary $0.600$ hectares. A lso in his evidence DM showed that some people $15$ wanted to take part of his portion of land and he resisted the same and those included the plaintiff. Therefore the answer to this issue is in ny considered opinion is in the negative.

From what has been explained above the plaintiff has failed to prove his claim on a balance of probabilities and in the premises the same is dismissed with costs. The plaintiff is not entitled to any relief.

$-\frac{1}{2}$ I. MUKANZA JUDGE

## $3.11.1995$ :

Plaintiff present Mr. Byanugisha for the plaintiff present Mr. Kayondo for the defendant absent Courts Judgment is read and signed in open court.

Hetukunza. I. MUKANZA JUDGE $3.11.1995$

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#### IN THE HIGH COURT OF UGANDA AT KAMPALA

#### CIVIL SUIT NO. 499 OF 1992

FRANCIS RUTAGARAMA BANTARIZA .............. PLAINTIFF

$-$ versus $-$

HABRE INTERNATIONAL TRADING CO. LTD ......... DEFENDANT

#### DECREE

This suit coming for final disposal before the Honourable Mr. Justice Mukanza this 3rd day of November, 1995 and after hearing Dr. Byamugisha for the plaintiff and Mr. Kayondo for the defendant it is hereby ordered and decreed that plaintiff's suit be and is hereby dismissed with costs.

GIVEN under my hand and the Seal of this Court this Court this Court this Court this

**REGISTRAR**

WE APPROVE

$\sim$

$\mathcal{L}_{\mathcal{A}}$

COUNSEL FOR THE DEFENDANT

DRAWN & FILED by:

BYAMUGISHA & RWAHERU ADVOCATES, P. O. BOX 9400, KAMPALA.