Eriazari Diisi v Mbarara Trading Stores (Civil Appeal 11 of 2000) [2002] UGCA 11 (11 October 2002)

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA **AT KAMPALA**

#### CORAM: HON. JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ $\smile$ $\tilde{\textbf{S}}$ HON. JUSTICE G. M. OKELLO, JA HON. JUSTICE . A. TWINOMUJUNI, JA

CIVIL APPEAL NO. 11 OF 2000

#### **BETWEEN**

ERIAZARI DIISI hammammammammammammam APPELLANT

#### AND

<table>

MBARARA TRADING STORES RESPONDENT

(Appeal from the judgment/decision of the High Court (Musoke-Kibuuka, J) at Mbarara Dated $16 - 3 - 99$ in HCCS No. 39 of 1995)

### JUDGMENT OF G. M. OKELLO, JA

$25$

$10$

$15$

$20$

This appeal is against the judgment/decision of the High Court (Musoke-Kibuuka,J) at Mbarara dated $16 - 3 - 99$ in civil suit No. 39 of 1995.

The appellant, a businessman of Mbarara, was the plaintiff in the original suit while the respondent, a registered limited liability company, was the defendant. Their dispute was over the ownership of plot No. 1. Mbaguta Street, Mbarara. comprised in Leasehold Register Volume 251. Folio 1, hereinafter referred to as the suit property. There was also an alternative dispute as to whether the appellant was not entitled to compensation for the development he made on the said plot.

$\ddot{\phantom{a}}$

The respondent was the registered leaseholder of the suit land for 30 years and 11 months effective from $1^{st}$ October 1949. The lease was to expire on 30/9/80. Following the infamous Asians expulsion from Uganda in 1972, the directors and shareholders of the respondent who were all Asians, left the country in that year. The building which they left on the suit land, was subsequently completely destroyed during the Liberation War of 1979. All that was left of the place, as described by the learned trial judge, was an ugly bush.

In 1992, the appellant applied to Mbarara Municipality for a lease of the suit land. Before the lease was granted to the appellant, the respondent as the former owner. $10$ had also applied to repossess the suit land in accordance with the provisions of the Expropriated Properties Act 1982. Mbarara Municipality was duly notified of this application. Notwithstanding that notification, Mbarara Municipality granted to the appellant a lease of the suit land, which he registered on $19 - 5 - 95$ . The appellant put up a commercial building which he appears to have started $15$ constructing on the suit land before the land was even allocated to him.

$20$

$25$

$\cdots \cdot \cdot$

$\varsigma$

In the meantime, the respondent was granted a certificate of repossession in respect of the suit land on $16 - 10 - 95$ . Armed with this certificate, the respondent. claiming better tittle, evicted the appellant from the suit land. The appellant responded by suing the respondent but lost the suit, hence this appeal.

There were five grounds of appeal but at the hearing, only grounds 3 and 4 were argued. The rest were abandoned. Grounds 3 and 4 were couched as follows:-

### "3. The trial judge erred in law and in fact in holding that the

appellent was a tnespasser on the suit propertv end in not ewerding him compensetion for his developments thereon.

## 4. The trial judge erred in law and fact in applying a lower standard of proof to the issue of fraud. therefore arriving at a ri rong conclusion of the case.'

The main complaint in ground 3 uas that the learned trial ludge erred in finding that the appellant was a tresp:lsser on the suit land and therefore- was not entitled to compensation for the value of developments he made on the land. At the beEnning of his argument- Mr. Kenneth Kaliuru- learned counsel for the appellant. cnticlsed the tnal ludge for maliing up hrs mind that the respondent was the lauf,rl owner of the suit land before evaluating the evidence on record According to himthat occasroned the appellant a mrscarrrage ofjustrce

ti

l(l

a

Mr Bvenkva- learned counsel for the respondent. did not agree He contended that the learned tnal ludge considered the facts and evidence on record before he made up hrs mrnd on the issue of ounershrp of the suit land.

Thrs complarnt arose from the sentence at the beginning of the consideratron of the issue of ounershrp of the suit land. The sentence runs as follous - 0

> \*There is no doubt in m1' mind, considering the facts and the evidence on record. that the defendant is the lawful owner of the suit propert)."

Mr Kakuru contended that bl gnving the gnst ofhis decision before evaluating the evrdence. the tnal ludge had erred rn lau and fact and that the error occasioned the appellant a miscamage of .;ustrce. Learned counsel did not state whlch proilsron of what law the learned ludge r rolated br so dorng. With due respect to learned counsel- I am unable to aeree that the learned1udge erred bl starting his ludgment fiom the reverse. That rs hrs st1'le of ludpnnent wnting. Judgment wnting st-l'le differs fiom ludge to 1udge. All such ludprnents are acceptable so long as their contents compll with Order 18 rule 4 of the Civil Procedure Rules ( Statuton' Instmment 65 j) uhich provides thus.-

lll

o

# \*Judgment in defended suit shal! contain a concise statement of the case, the point for determination, the decision thereon and the reasons for such decision.-

The contents of the instant .yudgnnent complied wrth the above requirement After stahng the gnst of his decision. the learned ludge proceeded to shou hou and wh1 he arrr ved at that conclusion. He evaluated the evidence on record- considered arguments of counsel and gave reasons for hrs decision. To accept Mr. Kakuru's ar€rument- would tantamount to condemnrng grvrng the summary or Erst of <sup>a</sup> ludgnnent and resen'ing the reasons therefor. to be prven at a later date- which courts often do in clear cases. I. therefore. find no ment in this complaint. I would drsmiss it t5

On the issue of trespass- Mr. Kaliuru criticised the tnal ludge for finding that the appellant w:rs a tresp:lsser on the suit land. He argued that the respondent's lease on the surt land had exprred rn October 1980 and the burlding r.r'hrch ther left thereon was completell destroy'ed dunng the liberatron u,ar of 1979. Between ti

I

1980 and 1995 u'hen lt \r':rs repossessed the suit land had no running lease on. The Departed Asrans Properties Custodian Board (DAPCB) \tras not managrng it because the lease on rt had alreadl exptred. He argued that- that was whv Mbarara Municipaliq. as the controlling authong. allocated it for lease to the appellant In counsel-s vreu. applicatton for repossession u'as not a bar to the controlling authont\ deahng urth such a propert]. as repossessron \ras not automatic on application. He submrned that the appellant-s entn on to the surt land u.as lau'fu| srnce he uas allowed thereon bv the controlling authonS

He further crrtrcrsed the tnal ludge for finding that section 56 of the Registration of Titles Act (RTA; applied in favour of the respondent. In his vieu- this sectron applied in favour of the respondent onll after repossessron which came after the appellant had entered the land. He argued that the deemed continuation of the lease of the former owner under sectron I (2) (b) of the Expropnated Propertres Act No.9 of 1982 (EPA) was to enable former owners repossess their properl Mbarara Munrcrpaliq'. as the controlling authonq'- could in lau deal with the suit land before repossessron and after the exprn of the respondent-s lease. He submitted that srnce Mbarara Munrcrpaliq leased the suit land to the appellant under a mistaken belief that the land had reverted to it. the appellant should not be treated bl the respondent as a trespasser on the suit land. l{r t: lll

o

He stated that the lener dated ll i'96. Erh. DIX. stating the respondent's rnterest on the suit land. uas \\ntlen long after the suit land had been allocated to the appellant. He submrned that Registered Trustees of Kampala Institute vs DAPCB. Civil .{ppeal No. 2l of 1992. Supreme Court; Livingstone Sewanyana vs Martin Aliker, Civil Appeal No. 4 of 1990, Supreme Court- uhrch the tnal ludge relred on. Nere distrngurshable frorn the instant case on their fbcts

ln response. Mr By'enli1'a contended that the tnal ludge nghtll found that b1 r'irttre ofthe EPA- 1982. the respondent's lease had contlnued in existence and that as such the respondent had an impeccable title. The appellant's title over the same land could not be valid. He submined that the tnal ludge u'as entrtled to follou the decrsron of the Supreme Court rn Livingstone Sewanyana vs Martin Aliker (supra )

The tnal .fudge dealt uith thrs rssue in his judgment thus -

lt)

ti

l

o

\*r\*'hile it is true that section I I (2) of the Expropriated Properties .{ct provides for a former owner who repossess€s his or her propertv to be liable to pav compensation in respect of an; improvemenb effected b1' the occupier of the propertl', that section in m1- view is not mandatory'. In other words, compensetion is not to be automaticalll' paid in all cases where improvements have been effected and repossession teken place. The words used in the Expropriated Properties.{ct are ...... "shall be liable to pay for the value of any improvements in such property or business to the person or body that effected such improvements" (Emphasis added). ln the case of Eliakim Ombon.'-e vs Rohemtulla llluhammad Jamani, High Court Civil Suit No. 541 of 1996 (unreponted), m1- brother, the Honourable Justice E S Luga.'-izi, of this court, gave good reasons whl that provision is not mandatory'. I do agree with him.

It follows, therefore. that the question ofwhether in anv given case where repossession has taken place and there is dispute as to whether liabilitl' falls upon the former owner to pap for the value of the improvement that issue must be determined judiciall-r- and on a case to case basis. taking into account the peculiar facts and circumstances of each case.

ln the instant case. the plaintiffcame to the suit proper! under circumstances that are not clear. He apparentll' sta rted construction before he obtained anv allocation ofa lease over the suit propcrtl'. \f,'hen he eventualll- did secure a lease over the propertr', that lease was null and void, giving him no legal interest in the suit propertv which was alreadl' owned b1- the defendant. Thus the position of the plaintiff was not different from that of a mere trespass€r as he was neither a tenant nor a proprietor. In m1' vie\*, the former owner cannot be liable in such circumstances to pa1'for the value of any' developments which were elTected b;- the plaintifl".

The rssue of ounership of the suit land ua-s abandoned as the appellant concedednghtlr in mv vieu. that the respondent has superior title The allocation of the surt land b1 Mbarara Municrpal Council to the appellant \\as contran to sectron I () ) tbtof the EPA Bl the operatron of that sectron. the respondent-s lease o\er the surt land uas still continuing u,hen Mbarara Municipal Council made the allocatron to the appellant That brought the instant case on equal footing with Livingstone Sewanyana vs Martin Aliker (supra) These fuo.u."S.lo not differ matenalll on therr facts as Mr Kaliuru uould like us to belreve The important point here rs that the lease rn both cases uere still runnlng. though br operation of the lau rn the Instant case. uhen the grant \r'as made to the appellants rn both cases. 0

l0

ti

o

a It uas argued that since the appellant's entn' on the suit land was through the Council-s act of a mistaken belief that it had power to allocate the suit landappellant should not be treated as a trespasser on the land. His subsequent developments on the land gave him equitable interest on it and should entitle him to compensatron for the value of the developments he made thereon

The tnal ludge relected that argument because the conduct of the appellant uith regard to his ent4 and development on the suit land were not clean He likened the posrtron of the appellant rn this respect to that of a trespasser He found that there were some underhand dealrngs befween certarn olTicers of the Council and the appellant rn thrs regard. For rnstance- firstlr. the appellant's building plan Erh P II for the suit land was approved bl the Toun Clerk of Mbarara Municipal Council on 24 - 9 92- well before the land r\*as even allocated to the appellant on 11 ll - 92 Secondll . the appellant started hrs development work on the suit land illegally before the land ua-s allocated to him as hrs own lener dated l6 l0 95 tExh D II) to the Tou'n Clerk. Mbarara Municipal Council shows. Thirdll. the allocation of the suit land to the appellant br Mbarara Municipal Council on I 7 ll 92 uas made rn drsregard to a uarning dated 07 ll 9l br the respondent to the Toun Clerk not to allocate the suit land to the appellant. l0 la

l

It \*'as argued for the appellant that application for repossession was no bar to the controlling authont) to deal urth the land uhose lease has expired and the land has reverted to it This argument is untenable in this case because of section I (I) (b) of the EPA w.hrch continued the respondent's lease over the surt land. The \ arnlng should have put the Councrl on notice to consult on the lau relating to rts power to allocate the surt land Ignoring or overlooking that uarntng coupled urth

the other instances mentioned above. shou a deliberate and concerted underhand acts between the appellant and certain officers of the Council The underhand acts destrol ed anl legrtrmacy of the appellant's entn to the suit land and his subsequent developments on the land The tnal ludge's likenrng of the appellant's posrtron to that of a trespasser rs therefore. nol mrsplaced. He did not ha\.e permrssron liom anr authonsed person or body to enter the surt land and carn out development thereon He rs seekrng equrq but the above evidence shous that he did not come to court uith clean hands. I- therefore. find no merit on this sround and would dismiss rt

l0

a

Ground I complained that the trial ludge erred when he applied a lower standard of proof to the issue of fraud and therefore. amved at a \lTong conclusion.

There were srr issues at the tnal framed as follous.-

t:

- (a) who is the lawful owner of plot \o. t. llbaguta Street, Mbarara. - (b) whether the developments effected on the suit proper(r' b.'- the plaintiff were lewful. - (c) whether the plaintiff is entitled to compensation from the defendant if so quantiq, - (d) whether the eviction of the plaintiff was legal, - (e) whether the plaintiff s rrcntrv amounted to trespass and - (f) remedies available to either pa rt'.

l

There was clearly no issue of fraud and there was no finding by the trial judge on that point. He could not have applied the requisite standard of proof for fraud in a vacuum. The trial judge only stated:-

$\overline{5}$

$10$

## "Consequently, all his activities on this suit property were tainted with illegality. He had no legal basis for effecting them."

He made the above statement when he was considering the second issue which was whether the developments effected on the suit property by the plaintiff were lawful. I find no merit on this ground and I would dismiss it.

In the result. I would dismiss the appeal with cost in favour of the respondent here and in the High Court.

Dated at Kampala this $11^{th}$ day of October 2002. $15$ G. M. Okello

## JUSTICE OF APPEAL.

$20$

### <sup>5</sup> THE REPUBLIC OF I]GANDA IN THE COURT OF APPEAL OF T]GANDA AT KAMPALA

## l0 CORAM: HON. JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ HON. JUSTICE G. M. OKELLO, JA HON. JUSTICE A. TWINOMUJUNI, JA

## l5 CIVIL APPEAL NO. I I OF 2OOO

ERIAZARI DIISI... AND MBARARA TRADING STORES... ... ... APPELLANT RESPONDENT

> (Apl)cnl fmm thc judgntent/dccision of thc High Court(l\tusol<e-Kibuulia, J ttt Nlhrrnll datcd l(r MaIth 1999 in HCCS No. J9 of 1995)

# 25 .]TIDGMI'NT OF L. E. M. MUKASA-KIKONYOGO, DCJ

I had the opportunity of reading in draft the judgment prepared by G. M Okello J. A. <sup>I</sup>agree with hirn that this appeal must fail.

-10

Since Twinornujuni J. A. also holds a sirnilar view the appeal is disrnissed with costs to the Respondents in this court and the High Court.

.t5 k".\_t y" L. E. M. M U KASA1KIKONYOCO DEPUTY CHIEF JUSTICE

r,ltQo2\_,

o

#### THE REPT]BLIC OF UGANDA

#### IN THE COURT OF APPEAL OF TJGANDA AT KAMPALA

#### HON. JTISTICE L. E. M. MUKASA-KIKONYO(;O. DCJ HON. JUSTICE (;. M. OKELLO, J. A HON. JUSTICE A. TWINOMU. IUNI,. I. A CORAM:

### CIVII, APPT]AL NO. I I OF 2OOO

ERIAZARI DIISI APPELLANT

### VEITSUS

MBARARA TRADING STORE,S R}]SPONDI]N'T

#### (Appeal from the judgment/decision of High Court (Musoke-Kibuuka, J) at Mbarara dated 161311999 in H. C. C. S. No.39 of 1995

#### . IUDGMENT OF TWINOMUJI,]NI ,1. A.

I have had the benefit of reading, in draft, the judgment of Hon. Justice G. M. Okello, J. A I agree with it and I propose to add and subtract nothing from it.

Dated al Kampala this ll . . ..day of . <sup>D</sup>e-{oL,- If"" ..2002.

{t n AI'PEAI,

a