Famous Cycle Agencies Ltd & 4 Ors v Mansukhulal Ramjikaria & 2 Ors (Civil Appeal 16 of 1994) [1995] UGSC 2 (17 November 1995)

Full Case Text

IN THE SUPREME COURT OF UGANDA

AT MENGO

ODOKI - J. S. C., ODER - J. S. C., and TSEKOCKO - J. S. C.) (CORAM:

CIVIL APPEAL NO. 16 OF 1994

**BETWEEN**

| 1. FAMOUS CYCLE AGENCIES LTD ERIA SSEVIRI & SONS VICTORIA MARKETING CO. 4. AHMAD YAKE IMPORT & EXPORT CO. ♦ 5. JASSO ENTERPRISES | $\mathbf{1}$ :::::::::::::::::::::::::::::::::::: | |----------------------------------------------------------------------------------------------------------------------------------------------|---------------------------------------------------| |----------------------------------------------------------------------------------------------------------------------------------------------|---------------------------------------------------|

A N D

| MANSUKHALAL RAMJI KARIA | | | |-----------------------------|--------------------------------------------------------------|--| | M/S MAKERERE PROPERTIES LTS | | | | 3. DEPARTED ASIANS PROPERTY | EXAMPLE 1 : : : : : : : : : : : : : : : : RESPONDENTS | | | CUSTODIAN BOARD | | |

(Appeal from the judgment of the High Court of Uganda at Kampala (Katutsi Ag. J) dated 9.5.1994 in Civil Suit No. 88 of 1992)

## JUDMENT OF ODER - J. S. C.

This is an appeal against the decision of a trial judge in the High Court disallowing an adjournment, proceeding on with the trial of a suit and passing judgment exparte.

The back ground of the appeal includes a chequered history of a commercial building situated on, and known as, plot 13, Market street, Kampala, the subject matter of the original suit (herein after referred to as "the suit property").

In 1960 the suit property was owned by, and registered in the names of, $\dot{M}/S$ Makerere Properties Ltd (the 2nd respondent), the shareholders of which were Ugandan citizens of Asian origin. Following the explusion from Uganda of Asians in 1972, including the shareholders of the 2nd respondent, the suit property was taken

over and managed by the 3rd respondent - the Departed Asians property Custodian Board. In due course the five appellants and eight other persons occupied the suit property as the 2nd respondent's tenants, paying rent to it.

$\mathcal{L}$

In 1982, the 1st respondent become the registered proprietor of the suit property. On 2.4.1991, he was granted a repossession certificate in respect of the suit property by the Minister of Finance, and on 31.5.1991 he entered into tenancy agreements with the appellants and other occupants of the suit property.

On 28.6.1991 the 2nd respondent's lawyers wrote to the appellants to the effect that the 1st respondent had been registered as the proprietor of the suit property without the authority of the 2nd respondent; that steps were being taken to have the registration of the 1st respondent cancelled; and that the 2nd respondent would not accept liability for expenses incurred by the appellants for improvement of the suit property as claims for such expenses should be directed to the 1st respondent.

On $1.8.1991$ the 3rd respondent also wrote to the appellants informing them that it had been discovered that the 1st respondent was not the rightful owner of the suit property. Consequently it had been decided that the repossession certificate which had been issued to him would be cancelled and the suit property returned to the 2nd respondent, for whema certificate of repossession was being prepared. The appellants were then advised to deal directly with the directors of the 2nd respondent in the meantime.

$... / 3$

Armed with this information, the appellants stopped paying rent to the 1st respondent; nor did they pay rent to the 2nd respondent; but they opted to do so to the 3rd respondent, who continued to demand for and receive rent from them.

Following all this, it appears that the 1st respondent threatened to evict the appellants from occupation of the suit property on account of non-payment of rent. On 25.2.1993, the appellants instituted the suit against the three respondents. The main purpose of the suit was to determine to whom the appellants should pay rent. In their plaint they prayed for:

- "(i) a declaration that the 1st defendant's notices to evict the tenants/plaintiffs are null and void: - (ii) a declaration as to who of the three defendants is the plaintiffs' $\beta$ land lord; - (iii) an order that rent already paid by the tenants/plaintiffs to a wrong landlord be passed over to the true landlord; - (iv) costs of the suit; and - $(v)$ any other and further relief that the Court deem fit."

Thus in the suit the appellants neither claimed any proprietory interest in the suit property, nor contested any claim of interest by any of the respondents therein. However, the respondents nevertheless defended the suit. In his written statement of defence (w.s.d) the 1st respondent claimed that he was the registered proprietor of the suit property and averred that it was not abandoned or expropriated within the meaning of the Expropriated Properties Act 1982; and therefore, it never vested in the Government or the 3rd respondent. Consequently, 3rd respondent had no powers to allocate tenancies in it or to collect rents therefrom. The 1st respondent

$\overline{3}$

$... / 4$

also counter-claimed against the appellants for special damages in the form of rent that had accrued from 1.7.1981, in the case of shops and from 1.4.1991, in the case $\beta$ lats. He also claimed for loss of profit as special lamages, for damages to the suit property due to disgrepair, for general and aggravated damages, and for costs and interests.

In its w.s.d. the 2nd respondent denied most of what the appellants had pleaded in their plaint, and claimed that it was the proper and lawful owner of the suit property.

The 3rd respondent also denied most of the contents of the plaint and stated that it had no interest whatsoever in the suit property, as the same was not legally expropriated in 1972 when the Asians were expelled from Uganda.

It appears that after the close of pleadings, the 1st respondent applied to have the Attorney General joined as a co-defendant in the suit, but when the Attorney General indicated that he had no interest in the suit, the application was abandoned. After a long delay, the suit eventually came up for trial, on 12.4.1994. On that occasion, the appellants, who were absent, were represented by Mr. Bwengye; the 1st respondent by Mr. Lule; and the 3rd respondent by Miss. Namirembe. The 2nd respondent was neither represented nor present. This, apparently, was because the 2nd respondent's lawyers, H/s Mulira and Co. Advocates, had written to the Chief Registrar of the High Court on 12.3.1993, informing him that their client's v.s.d. was a general one filed merely as a precautionary measure,

$.../5$

and that the 2nd respondent had no interest in that suit, as they were pursuing their rights under a separate suit. In the event, Mr. Ewengye, for the appellants at the trial, applied for an adjournment

saying this:

"I am informed that the 2nd defendant had written to say that he was not interested in the case. This case has lingered on for some time simply because parties involved are there two cases involved (sic). The second defendant who said was not interested proceeded against 1st defendant in Co. cause No. $2/92$ where the Court Ordered that the 1st defendant's name be struck out of tre Co. register. That made this particular case to be looked at with different glasses. I would therefore like to apply for an adjournment to get fresh instructions from the plaintiffs. Otherwise it will be futile of the 2nd defendant's claim will have succeeded. In this particular matter the plaintiff's dilema is to who to pay rent. One of the defendants - 3 has been collecting rent and the other two are claiming the same. I am made to understand that the Custodian Board is ready to refund the rent to any of the two claimants who will have been successful in the company cause 2/92. With that, I pray that an adjournment be granted that the costs in the matter be in the cause."

The application for adjournment was resisted on a number of grounds by Mr. Lule for the 1st respondent and Miss. Namirembe for the 3rd respondent.

The learned trial judge upheld the objection and refused the appellants application for adjournment in the following terms:

> "As correctly pointed out by the learned Counsel for the plaintiffs at the beginning of his submission, this case has been dragging on for too long. Learned Counsel for the plaintiffs submit that only dilema facing his clients is as to who they should pay rent. It is stated on behalf of the 3rd defendant that that body is no longer interested in the subject matter. That leaves the 1st and 2nd defendants alone. The 2nd defendant has had written occasionally to say that he is no longer interested in the subject matter of this since 1992 the plaintiffs are not paying rent to

$\mathsf{S}$

anyone. They are in other words enjoying rent free facilities. A plaintiff should not be guilty of laches. It should be the plaintiff to agitate for expediancy in dealing with his case. The reasons given by the learned Counsel for seeking an adjounment so as to seek further instructions are in my opinion unsatisfactory. He has had ample time in which to get instructions from his clients. It is also of note to see that none of the plaintiffs is in Court. The Court shall never lend support to any party that might be seen to be engaged in delaying tactics. The request for adjournment is refused and hearing is ordered to proceed."

In response to this, the appellants' Counsel, Mr. Bwengye said:

"Since I have no instructions to proceed in this case, I would like to withdraw from the case."

The trial Court allowed him to do so, and the hearing of the suit was immediately proceeded with, in the absence of the appellants or their Counsel.

In the event, only the 1st appellant gave evidence in support of his own case. His evidence was that he bought the suit from the 2nd respondent in 1981 and had it registered in his names. No one was claiming it at the time of his testimony although some one had previously done so. The suit property was a commercial building consisting of shops and flats. He had entered into tenancy agreements with the appellants. They then paid him rent for sometime and stopped, saying that the suit property belonged to the 2nd respondent. The 2nd and 3rd respondents who had previously made claims to the property witndrew their claims, leaving the 1st respondent as the only claimant of the suit property. Consequently only he (1st respondent) was entitled to rent for the suit property.

The 1st respondent's evidence also covered his various claims against the appellants specified in the counter-claim, including

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arrears of rent, loss of profit, general damages and costs.

$\overline{7}$

In his judgment the learned trial judge found for the1st respondent, to the effect that he was the only one entitled to be the appellants' landlord: and that he was entitled to the rent and interest thereon, which the appellants had not paid him since 1.4.1991 in respect of the flats, and 1.7.1991 in respect of the shops. Interests ordered as payable were to be at the Court rate. The 1st appellant was also awarded costs of the suit and of the counter-claim. But the learned trial judge dismissed his counterclaim for general and aggravated damages.

This appeal, arises out of that decision. Although all the three original defendants were cited as the respondents in the memorandum and record of appeal, only the 1st respondent was represented at the hearing. Neither the learned Counsel for the 1st respondent, nor that for the appellants indicated whether the 2nd and 3rd respondents were interested in the appeal or why they were not present or represented.

Eight grounds of appeal were set out in the memorandum, of which, I think, ground two is one of the most important. It criticises the learned trial judge for refusing to grant the adjournment sought by the plaintiffs' Counsel at the trial. I will consider this ground first. It was framed as follows:

> "The learned trial judge erred in law by refusing to grant an adjournment to the plaintiffs' advocates who had applied to get fresh instructions from his clients and further erred in holding that the plaintiffs had chosen to proceed with the suit as framed and filed despite their knowledge of the the 2nd defendant's withdrawal."

> > $\cdots$ /8 In his submission on this ground, Mr. Ewengye, learned Counsel for the appellants, contended that the refusal to adjourn caused injustice to the appellants, which would not have happened if the suit had been adjourned and allowed to continue within; say, a week. In the event, the appellants were shut out from the judgment seat when the adjournment was refused altogether. This resulted from the learned judge's improper exercise of nis discretion. In the learned Counsel's view, this was contrary to the dicisions in Mamubhai Bhailalbhai Patel V. Gotfried (1953) Zo, EACA 81; and Nitin Jayant Madhyani V. East African holding Ltd & Cthers, Civil Appeal No. 14/93, SCU (un reported).

It was also contended that one of the main purposes of litigation required that hearing of suits should be fostered rather than hindered. For this, reliance was placed on Haji Nurdin Matovu V. Ben Kiwanuka, Civil Application No. 12/91, S. C. U (unreported); In the instant cases, an adjournment would have facilitated all the parties to the suit to be heard on a subsequent date.

In response, Mr. Lule, learned Counsel for the 1st respondent, vigorously opposed this ground of appeal on the ground that no sufficient cause was shown to the learned trial judge to justify the adjournment sought by the appellants' Counsel. On the contrary, Mr. Lule contended, there was every reason to justify the refusal. the reasons Some of them were that the suit had been pending for a long time, a point conceded by the appellant's learned Counsel and accepted by the learned trial judge. Further, the appellants were not in Court on that occasion and no explanation $\boldsymbol{w}_{\text{a}}\boldsymbol{s}$ given for their absence;

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and the adjournment applied for was apparently open-ended as no indication was given how long or short it was to be. As the suit property was situated only a short distance from the Court premises, it was contended, the appellants' Counsel could have sent for his clients or obtained instructions from them within, at most, an hour. Consequently the adjournment applied for should have been a short one and not open-ended.

Another reason Mr. Lule advanced was that when the suit came up for hearing, the appellants had already known that the 2nd and 3rd respondents were not interested in the suit property; nor were they claiming rent therefrom. The appellants already knew that only the 1st respondent was making a claim of right to the suit property and rent therefrom. They were, therefore, not in a dilema regarding who to pay rent to as contended by their Counsel. Moreover, the 3rd respondent had indicated that it was willing and pass on the rent it had received to the party entilted ready to to it. In the circumstances of this case that party was the 1st respondent.

Mr. Lule also said that in the light of all this it was not necessary to adjourn the suit to another date to ehable the appellantSto testify in Court in support of their suit, since the main objective of the suit was to determine who was the appellants' proper landlord.

As regards Company cause No. $2/94$ , which the appellants'learned Counsel gave as a ground for adjournment, Mr. Lule contended that no suggestion was made that if affected the appellants in any way.

$...10$

$\mathsf{G}$

It did not therefore constitute a sufficient cause to suprort the adjournment sought.

The High Court's discretion to adjourn a suit is provided for in order 15, rule 1(1) of the Civil Procedure Rules, which states that:

> The Court may, if sufficient cause is $111$ shown, at any stage of the suit grant, time to the parties, or to any of them, and may from the time to time adjourn the hearing of the the suit.

Under this rule the granting of an adjournment to a party to a suit is thus left to the discretion of the Court. The discretion is not subject to any definite rules, but should be exercised in a judicial and reasomable manner, and upon proper material. It should be exercised after considering the party's conduct in the case, and the opportunity he had of getting ready and the truth, and sufficiency of the reason alleged by him for not being ready.

The discretion will be exercised in favour of the party applying for adjournment only if sufficient cause is shown. 'Sufficient cause', in my opinion, refers to the acts or omission of the applicant for adjournment. What is sufficient cause depends upon the circumstances of each case. Generally speaking, where the necessity for the adjournment is not due to any thing for which the party applying for it is responsible, or where there has been little or no negligence on his part an adjournment would not normally be refused. But where the party has been wanting in due diligence or is guilty of negligence an adjournment may be refused.

$.../11$

Under the corresponding rule of the Indian "Code of Civil Procedure" by Manohar and Ditaley, 10th Edition, page 543, circumstances which have been held to constitute sufficient cause for adjournment include where a party is not ready for the hearing by reason of his having been taken by surprise; where he could not reasonably know of the date of nearing in sufficient time to get ready for the same; where his witnesses fail to appear for the hearing owing to no-service of summons on them when such no-service is not due to the fault of the party; where the absence of witnesses is due to a bona fide mistake on the part of the party; where a party is not ready owing to his lawyer having withdrawn his appearance in the case under circumstances which do not give the party sufficient time to engage another lawyer and enable him to get ready; and where the refusal of an adjournment to a party will enable the opposite party to successfuly evade a previous interim order against him.

$11$

The case of Nitin Jayant Madhvani V. East African Holding Ltd & Others (Supra) falls in the catergory of circumstances in which a party is not ready owing to his lawyer having withdrawn, which do not give the party sufficient time to engage another lawyer and enable him get ready. It is, in my opinion distinguishable from the instant case, where the appellants were absent.

Turning to the instant case the amended plaint was apparently filed in Febuary, 1993 and the last of the defences, that of the 3rd respondent filed in March, of the same year: But it appears that prior to the filing of the last of the pleadings, the suit was adjourned twice, namely on $22/4/1992$ and $24/6/1992$ in connection with the application to add the Attorney General as co-defendant.

$.../12$

Thereafter, on $19/1/1994$ , the suit was adjourned due to the absence of all the parties. Finally, it was on $12/4/1994$ that the application for adjournment on behalf of the appellants was refused and the hearing of the suit ordered to proceed exparte after the Counsel for the appellant had withdrawn. The case had been pending for more than two years, and there was no indication from the apparently open-ended adjournment sought on that day as to when the suit might be deposed of. The suit had been around for over two years and the appellant's Counsel conceded that that was a long time. I think therefore that the learned trial judge was justified in so holding.

The only reason which was given for the adjournment sought on behalf of the appellant was that whereas the second respondent's' lawyers had written to the High Court that their clients had no interest in the suit, yet they had obtained a Court order in Company cause No. 2/92 striking out the 1st respondent's name from the Company register of the 2nd respondents, and that in the circumstances the instant case had to be "looked at with different glasses." as the appellant's learned Counsel put it to the learned trial Judge. As a result the Counsel applied for the adjournment to obtain instructions from the appellants.

In my view the reasons given for the adjournment did not justify one. First, it is clear that the 2nd respondent's lack of interest in the suit was not a matter of surprise to the appellants when the suit came up for hearing on the material date. The letter from M/S Mulira and Co. Advocates expressing that position was written on 12.3.1992 and copied to M/S Bwengye and Co. Advocates,

$...13$

the appellant's lawyers. It has not been said that N/S Bwengye and Co. did not receive their copy. On the soxtrary, what Mr. Bwengye said to the Court during his application indicates that he had been aware of the 2nd respondent's attitude towards the suit. The question which arises, therefore, is if Mr. Ewengye about the 2nd respondent's position regarding the Suit knew apparently long before the hearing date, which I think he did, why was he not armed with the appellant's relevant instructions when he came to Court on the material date? As regards the order in the company cause the learned Counsel did not say to the lower Court or to us when he first knew about it prior to the material date, because it is only if he did not have sufficient time in which to take instructions about it from the appellants that more time for doing so would be justified. In any case as the company cause was purely a matter between the 1st respondent and the second respondent it is difficult to see of what relevance it was to the appellant so far as the suit was concerned, especially as the appellants were not claiming to have any interest in the 2nd respondent as a company.

Secondly as the only objective of the suit was to determine who the appellants' landlord was, and not to determine any proprietory interest by the appellant in the suit property, and as the 2nd and 3rd respondents had disclaimed any interest over the suit property, and it was clearly evident to the appellants that only the 1st respondent had claimed such interest in the suit property, I am unable to agree that an adjournment of the suit to enable the appellants' Counsel to obtain struction from them was sufficient cause.

$.../14$

Thirdly, all the appellants were themselves absent in Court when the suit was called for hearing and no explanation was offered for their absence. Their absence without any explanation leaves the impression that their learned Counsel went to Court with expectation of being granted an adjournment as a matter of course. If that was so it was too presumptious on the part of all concerned, for which the appellants only have themselves to blame. In all the circumstances of the case, I am of the view that no sufficient cause was shown for the appellants' application for adjournment. I have the impression that the appellants wanted to spin the matter as long as possible. It suited them to have the case remain pending as long as possible. The claim that they did not know who to poy rent to was a good excuse for not paying rent to the 1st respondent. With respect, my impression from all this is that the application for adjournment was an exercise in delaying tactics on the part of the appellants.

In the circumstances the contention that the learned trial judge erred by refusing to grant the adjournment has no merit. That ground of appeal must, therefore, fail. There can be no question of a re-trial.

I will next consider ground one of the appeal, which is that the learned trial judge erred in law by granting the 2nd defendant leave to withdraw from the suit and/or their purported withdrawal without a formal application of their written statement of defence which led to their non-appearance and the learned trial judge erroneously held that they had lost interest in the matter and had withdrawn.

$.../15$ Under this ground of appeal Mr. Exangye, learned Counsel for the appellants, submitted that the 2nd respondent should have withdrawn its defence by a Chamber summans application, as required by Order 22 rules $1(3)$ and 7 of the Civil Procedure Rules. It was not enought for the 2nd respondent to simply write to the Court and say, as it did, that it had no interest in the suit and wished to withdraw.

With respect, it is factually incorrect to say that the learned trial judge granted the 2nd respondent leave to withdraw from the suit, because no leave to withdraw was granted as such. All that can be said to have happened is that the learned trial judge acquiesced to the withdrawal conveyed by the 2nd respondent's lawyer in a letter, and to their absence at the hearing of the suit. If that can be regarded as leave to withdraw, granted by the Court, then I think that the criticism under this ground is well made in view of the provisions of Order 22 Rules $1(3)$ and 7. The effect of these rules when read together appears to be that a defendant's withdrawal from a suit can be made only with leave of the Court upon application by Chamber Summons.

In the instant case, the 2nd respondent's lawyers, M/S Mulira and Co. Advocates filed their client's written statement of defence in which it was asserted that the 2nd respondent was the proper and lawful owner of the suit property. Subsequently they simply wrote to the Court conveying the 2nd respondent's withdrawal from the suit. At the hearing of the suit the 2nd respondent was absent, which absence was not explained. Presumably, the 2nd respondent did not turn up because it thought that it had already withdrawn from the suit. In his judgment the learned trial judge apparently

$\cdots$ /16

accepted the 2nd respondent's written withdrawal and entered no judgment against that respondent.

I accept Mr. Ewengye's submission that such a procedure contravened the provisions of orier 22 rules $1(3)$ and 7, but I am unable to accept the contention that the appellants thereby suffered any miscarriage of justice. It is quite evident that even if the 2nd respondent withdrew from the suit in the manner prescribed by the rules or did not withdraw at all, it is most improbable that the result of the suit would have been any different. The appellants would still have lost as they did in the end.

I will next consider grounds three to seven together. These grounds are that:

- The learned trial judge failed to properly appreciate the whole $3.$ subject matter of the suit and hence arred by restricting and/ or narrowing his mind as to who was to be paid rent. - $4.$ The learned trial judge confidered the question as to who the rightful owner of the suit property but failed to direct his mind to the fact that the legal title under dispute and erred by holding that only the 1st defendant claimed title. - The learned trial judge rightly considered the acquisition $5.$ of the requisition of the repossession certificate but failed $% \left\vert \mathcal{A}\right\vert$ to address his mind to and evaluate the effect of the cancellation of the same and erred by declaring that the 1st defendant was the rightful owner of the suit property. - The learned trial judge failed to address his mind to the 6. illegality of the 1st defendant's acquisition of title to the property.

$16$

The learned trial judge learnt of a prior suit as to the legal title to the suit property between the 1st and 2nd defendants but failed to appreciate its effect, misdirecting his mind to the belief that the legal title was / not indispute and erred by holding that the 1st defendant was the rightful owner of property and thus the plaintiff's landlori.

In my view these grounds have no merit. Some of what I said when dealing with the first two grounds equally apply to these grounds. The objective of the appellant $\zeta$ suit was not to contest the ownership of the suit property between the appellants on the one hand and the respondents on the other or between the respondent's themselves. The objective, as already said earlier in this judgment, was to determine to whom the respondents should pay rent. $\aleph$ The appellants did not claim any proprietory interest in the suit property. In the circumstances it would appear that whoever of the three respondents was the rightful owner of the suit property was not an issue as far as the appellants were concerned except as an indication to whom they should make payment of rent.

Secondly, long before the suit came up for hearing the appellants well knew that only the 1st respondent was claiming to be the rightful owner of, and that the 2nd and 3rd respondents had disclaimed any interest in, the suit property. In the circumstances, as Mr. Lule said, properly so in my view, it is a matter of considerable puzzle why the appellants still proceeded on with suit in the form $\frac{1}{1}$ was framed in the plaint or at all.

Thirdly, the 1st respondent's evidence in my view proved beyond the balance of probability that he had bought the suit property from the 2nd respondent and that he was the registered proprietor

$.../18$

$7.$

thereof as evidenced by the certificate of title, exhibit P1. As such, his title was indefeasable under sections 56 and 194 of The Registration of Titles Act, except on grounds of fraud. His counter-claim against the appellants for special images in the form of arrears of rent was also properly proved. This evidence which the learned trial judge accepted, rightly so in my view, fully answered the appellants'dilema, if ever there was one, concerning the proper landlord to whom they should pay rent. It is the 1st respondent who was their proper land lord, the declaration sought in the prayer made in their plaint.

In all these circumstances, I think that the criticism against the learned trial judge in the grounds of appeal under consideration, such as the failure to properly appreciate the subject matter of the suit; failure to direct his mind that the legal title of the suit property was under dispute; failure to address his mind and to evaluate the effect of the concellation of the repossession certificat; failure to address his mind to the illegality of the 1st respondent's acquisition; and erring to find that the 1st respondent was the rightful owner of the suit property and thus the appellants' land lord, are all without justification.

In the circumstances I would think that grounds three to seven must fail.

Finally ground eight. This is that the learned trial judge erred in ordering that the propellants pay rent including that which had been paid to the 3rd respondent.

I think that there is merit in this ground. In his counter-claim against the appellants, the 1st respondent claimed rent for the five shops from 1.7.1991 and for the flats from 1.4.1991. In his evidence

$... / 19$

he repeated his claim for rent not paid, and prayed that it be paid up-to-date. The learned trial judge accepted his evidence and found that he was entitled to the rent claimed.

However, according to invoices attached to the plaint, the 3rd respondent continued to demand payment of rent from the appellants, and received payment of the same from them, up-to 15.12.1992. In his judgement the learned trial judge did not order that the rent so received from the appellants by the 3rd respondent from 1.7.1991 in respect of the shops and from 1.4.1991 in respect of the flats should be passed on to the 1st respondent as the person entitled to such rent. I think that this was an error. Ground eight of the appeal should, therefore, succeed.

In the result I would dismiss this appeal except in respect of ground eight, which I would allow. I would order that the 1st respondent should have 7/8th of the cost of the appeal and of the suit in the Court below. I would also order that the sum of money representing the rents which the 3rd respondent received when it should not have done so should be passed on by the 3rd respondent to the 1st respondent with interest thereon at the Court rate.

Dated at Mengo this $\cdots$ $\cdots$ day of $\cdots$ $\cdots \cdots \cdots \cdots$ 1995.

A. H. ODER JUSTICE OF THE SUPREME COURT.

MS An. Broegro fre a Apprests M. Senaboja told p Mey for m. Inde

## IN THE SUPREME COURT OF UGANDA

#### AT MENGO

ODOKI - J. S. C., ODER - J. S. C. And TSEKOOKO - J. S. C.) (CORAM:

# CIVIL APPEAL NO. 16 OF 1994

#### **BETWEEN**

| 1. 2. 3. 4. 5. | FAMOUS CYCLE AGENCIES LTD ERIA SEVVIRI & SONS VICTORIA MARKETING COMPANY AHAMAD YAWE IMPORT & EXPORT CO LTD JASSO ENTERPRISES | $:\;:\;:\;:\;:\;:\;:\;:\;:\;:\;:\;:\;:\;:\;:\;:\;:\;:\;:\;$ | APPELLANTS | |----------------------------|-------------------------------------------------------------------------------------------------------------------------------------------|-------------------------------------------------------------|-------------| | | AND | | | | 1. 2. 3. | MANSUKHULAL RAMJI KARIA M/S MAKERERE PROPERTIES LTD DEPARTED ASIANS PROPERTY CUSTODIAN BOARD I | | RESPONDENTS |

(Appeal from the judgment and decree of the High Court of Uganda (Katutsi Ag. J) dated 9th May, 1994

in Civil Suit No. 88 of 1992)

#### JUDGMENT OF ODOKI - J. S. C.

I have had the benefit of reading in draft the judgment prepared by Oder Justice of the Supreme Court and I agree with it. As Tsekooko Justice of the Supreme Court also agrees with the judgment of Oder Justice of the Supreme Court, there will be an order in the terms proposed by Oder Justice of the Supreme Court.

. 1995 Dated at Mengo this day of $B$ $\mathcal{I}$ ODOKI,

JUSTICE OF THE SUPREME COURT.

IN THE SUPREME COURT OF UGANDA

### AT MENGO

And TSEKOOKO - $J. S. C.$ ) ODOKI - $J. SC.$ , ODER - $J. S. C.$ (CORAM:

CIVIL APPEAL NO. 16 OF 1994

#### **BETWEEN**

| FAMOUS CYCLE AGENCIES LTD 1. ERIA SEVVIRI & SONS $2\cdot$ VICTORIA MARKETING COMPANY 3. 4. AHAMAD YAWE IMPORT & EXPORT CO. LTD JASSO ENTERPRISES 5. | :::::::::: APPELLANTS | | |--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------------------------|--| |--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------------------------|--|

AND

MANSUKHULAL RAMJI KARIA $1.$ RESPONDENTS $\cdots\cdots$ MAKERERE PROPERTIES LTD $2.$ DEPARTED ASIANS PROPERTY CUSTODIAN BOARD $3.$

> (Appeal from the judgment and order of the High Court of Uganda at Kampala (Katutsi Ag. J) dated 9th May, 1994

$IN$ CIVIL SUIT NO. 88 OF 1992)

JUDGHENT OF TSEKOOKO, J. S. C.

I have had the opportunity to read in draft the judgment of Oder, J. S. C. and I agree with the conclusions. I have nothing to add.

1995. Dated at Mengo this day of $\cdot$ N. TSEKOOKO,

JUSTICE OF THE SUPREME COURT.