Hariprasad Rambhai Patel v Babubhai Kalidas Patel (Civil Suit 981 of 1990) [1996] UGHCLD 3 (25 June 1996)

Full Case Text

## **THE REPUBLIC OF UGANDA**

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

#### **CIVIL SUIT NO. 981 OF 1990**

## **HARIPRASAD RAMBHAI PATEL PLAINTIFF**

#### **VERSUS 5**

**BABUBHAI KALIDAS PATEL DEFENDANT**

**BEFORE: The Hon. Lady Justice M. Kircju**

## **Judgement**

The plaintiff, Hariprasad Rambhai Patel brought this action against the defendant, **Babubhai** Kalidas Patel claiming a declaration that he is entitled to 50% ofthe rent collected from the suit property vacant 10 possession of 50% ofthe suit property, interest and costs ofthe suit. The defendant in his 2nd Amended Written Statement of Defence denied the claim by the plaintiff and averred, that though the property was registered in the names ofthe plaintiff and the defendant as tenants in common, the plaintiff was not entitled to any share of the property as he did not furnish any consideration. The plaintiff was therefore holding the land on a resulting **trust. In** the alternative the defendant pleaded that the plaintiff 15 had no *locus standi* in the suit as he has not repossessed the property as a departed Asian, this ground was abandoned by the defendant as no evidence was adduced to support it.

The defendant further Counterclaimed from the plaintiff the 50% of the suit land that the plaintiff obtained it by fraud since he did not meet his share of the purchase price after making a *misrepresentation* to the defendant that he would do so, and later claiming he had actually paid. He also 20 made **a** *misrepresentation* that he was holding the halfshare ofthe property on trust for the defendant's daughter. The defendant prayed that the plaintiff be made to pay halfthe price of the suit property after valuation alternatively the whole property be registered in the names ofthe defendant and the plaintiffs name be cancelled therefrom. In reply the plaintiffdenied the defendant's Counterclaim and averred that the property was paid for by both parties before they were registered. He further denied any 25 *misrepresentation* on his part and contended that the Counterclaim was misconceived vexatious and time barred and should be dismissed with costs.

At hearing ofthe case the plaintiff was represented by learned counsel Mr. Rezida of M/s **Ayigihugu** and Company Advocates and the defendant was represented by learned counsel, Mr. **Nangwala** ofM/s Nangwala & Co Advocates.

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5 10 The brief facts ofthis case are that the plaintiff and the defendant were registered as tenants in equal shares on 7/2/1972 in respect of Leasehold Register Volume 115 Folio 25 known as Plot 19 Buganda Road. The plaintiff left in 1972 in the exodus of non Ugandan Citizen Asians. He left Power of Attorney with the defendant to manage the said property on his behalf. Plaintiff claims he paid 50% of the purchase price. When the plaintiff demanded for the account of rent the defendant declined to comply. The defendant claimed that the plaintiff did not pay for his share ofthe property, he was only nominated by the defendant as a co-owner. The defendant paid the whole price for the property and therefore claims an equitable mortgage of the plaintiffs alleged interest in the property and by the depositing ofthe Certificate ofTitle with the defendant, the plaintiff is not entitled to any rent from the property before redemption. The defendant averred that the plaintiff has failed to redeem his shares by paying part of the purchase price, and cost of the improvements made by the defendant to the suit property. The defendant also claims that the plaintiffs share was acquired through fraud by making *misrepresentations* to the defendant.

Before the commencement of the hearing, the following issues were agreed upon.

- 15 Whether the plaintiff and the defendant jointly purchased the suit property as alleged. (1) - Whether the plaintiffs Power of Attorney given to the defendant in 1972 has been revoked. (2) - Whether the plaintiff is entitled to halfthe rent collected from the suit property. (3) - Whether an equitable mortgage was created by the plaintiffin favour of the defendant. (4) - Whether the defendant carried out renovations as claimed and ifso whether he is entitled to half the cost ofthe renovations. (5)

The plaintiff called two witnesses including himself in support of his case and the defendant called two witnesses and also testified on his own behalf. The Written Statement of Defence was amended twice after the hearing ofthe case commenced and the plaintiff also filed a reply to the last amended Written Statement ofDefence and Counterclaim. The new matters pleaded will be considered while considering the framed issues.

After the close ofthe defence case both counsel made submissions which 1 shall consider as I consider the issues.

30 With regard to the first issue which is whether the plaintiff and the defendant jointly purchased the suit property, the plaintiff called PW1 Winifred Buchana who testified that she is a Registrar of Titles in the Ministry of Land, Housing and Urban Development. As a Registrar of Titles, she dealt with conveyancing generally in Land transactions. She produced in Court the Transfer Deed Exhibit P. 1 which was to the effect that Kashibai Dahyabhai Patel being the registered proprietor ofLease Register Vol 115 Folio 25 known as Plot 19 Buganda Road, Kampala, in consideration of Shs. 270.000/- paid to him by Babubhai Kalidas Patel as Advocate and Hariprasad Rambhai Patel transferred the said land

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to B. K. Patel; and H. R. Patel; as tenants in common in equal share for all the estate and interest therein. The transfer was dated 2/2/1972 and was lodged on 7/2/1972 at 10.15 a.m. It was signed by R. K. Patel by virtue ofPower ofAttorney, granted to him by the seller. Both buyers signed in the presence ofJamnadas K. Patel an advocate (D. W. 2).

**5** On 7/2/1972 the purchasers were registered as tenants in common in respect of the said land. The Certificate ofTitle was tendered in evidence as Exhibit P. 2. She said that there were incumbrances on the Certificates ofTitle one was a mortgage by Grindlays Bank International registered on 5/8/72. The mortgage was in consideration of Shs. 130,000/-. There a Caveat lodged by H. R. Patel on 28/11/90.

10 **15 20** PW2 the plaintiffin this case testified that he was now resident in India having left the country during the expulsion of non Ugandan Asians in 1972. In 1972 he was a Ugandan citizen. He was now a businessman and British citizen. He said that he owned 50% of the suit property having bought it in 1972. He paid Shs. 135,000/- ofthe purchase price to the defendant B. K. Patel who was to pass it on to the J. K. Patel who was a lawyer for the seller although he had said in examination in during\*\* that he had paid money direct to J. K. Patel. He admitted having signed the transfer Exhibit P. I. B. K. Patel owned halfofthe property and he was responsible for managing the property as the witness was living at Kikonda near Hoima where he had a farm. Before he left the country in 1972 he gave B. K. Patel power of attorney to look after the property he was his friend, a lawyer and he trusted him. He left in a hurry to take his brother who had been badly beaten to London for treatment. Most ofthe documents concerning the property were left behind. He further testified that he was aware of the mortgage with Grindlays Bank but he did not know how the money was used, he trusted B. K. Patel as a friend. He denied having been nominated by B. K. Patel as a trustee of her daughter Sushma. He stressed that he had paid for his share ofthe property.

25 The defence called (DW2) Jamnadas Kashibai Patel, aged 74 years residing in England, a lawyer by profession. He used to practice in Uganda from 1946 - 1972. He left Uganda in 1972 after the expulsion of Asians. He had known H. R. Patel since 1950 as they came from the same village in India. He also know B. K. Patel since 1957 or 1958. He said that Kashibai Dahyabhai Patel instructed him in 1971. to look for a buyer for his property.

**30 35** Several people were interested in the property including the defendant. K. D. Patel agreed to sell to the defendant and a Memorandum of Sale was drawn by B. K. Patel, it was signed on 3/11/1971 and he witnessed it. Under the agreement B. K. Patel the purchaser had a right to appoint a person or a company as his nominee. At the time ofthe execution ofthe agreement he did not know B. K. Patel's nominee. He said that the purchase price of Shs. 270,000/- was paid by B. K. Patel as follows Shs. 27,000/- was paid after the signing ofthe Sale Agreement Shs. 200,000/- was paid after mortgaging the property. Shs. 40.000/- was paid by B. K. Patel and credited on 18/12/1971 on witness's Client's Account with Bank of Baroda, Shs. 3,000/- was credited to the vendor from one of the tenants. He

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further testified that he was not paid any money by H. R. Patel; and he was not aware of the arrangements between B. K. Patel and H. R. Patel. The transfer deed Exhibit P. 1 was brought to him already drawn by B. K. Patel he just signed as a witness. He testified that if H. R. Patel paid anything he should have paid it to B. K. Patel as he himself was not concerned.

5 Further in cross-examination he testified that the transfer deed was signed by the son ofthe Vendor, R. K. Patel who had Power of Attorney. B. K. Patel drew the document and should be professionally responsible. He added that the plaintiff and the defendant were friends the arrangements they made between themselves were not know to him.

**10** The last defendant's witness on this issue was the defendant himselfBabubhai Kalidas Patel. DW3, who testified that he was 65 years old having been born at Katende in Mpigi District, and an advocate since 1957. He knew the plaintiffwhom he helped financially when he had his farm called Kikonda Butema Ltd. In 1968 H. R. Patel was supposed to transfer J. K. Patel's shares in the company worth Shs. 400,000/- to B. K. Patel, H. R. Patel having failed to pay for them. However H. R. Patel did not transfer these shares as agreed, to B. K. Patel. The witness and H. R. Patel were good friends and he used to visit the farm on Saturdays and Sundays, and he trusted him as a friend. He said that he owned the suit 15 property and he was in exclusive control and possession thereof, although the property is registered in his names and that of H. R. Patel. He bought the suit land from K. D. Patel who was represented by his son R. K. Patel. J. K. Patel, DW2 was the one who was asked to look for a buyer. The price was negotiated and agreed at Shs. 270,000/- and Memorandum of Sale Exhibit D. 1 was drawn by the witness and signed on 3/11/1971. The witness was the buyer or/and his nominee and Kashibai 20 Dahyabhai Patel was the seller. He wanted to safeguard the interests of his daughter Sushma who was 14 years at the time, that's why he wanted a nominee to look after her interest. He asked H. R. Patel to act as a trustee for his daughter or act as his partner and pay the price. According to the witness the plaintiff agreed to act as a trustee for the daughter because of his financial position.

On the day the Memorandum of Sale was executed he paid Shs. 27,000/- by cheque to J. K. Patel as 25 deposit. The copy ofthe letter forwarding the said cheque was Exh D. 2. The next payment was by deposit ofcash Shs. 40,000/- to the client account ofJ. K. Patel in the Bank of Baroda on 18/12/71. The deposit slip was tendered in evidence as Exhibit D. 3 Shs. 3,000/- was credited to the purchase price from one of the tenants. J . K Patel. The lender asked the witness to bring in another person before he could give him a loan saying he was not enough. And his daughter being a minor could not sign the 30 legal documents. The copy ofthe mortgage dated 3/2/1972 was tendered in evidence as Exhibit D. 4. It was executed by B. K. Patel and H. R. Patel and was prepared by B. K Patel, both of the were responsible for the repayment ofthe loan. However, H. R. Patel did not pay anything the defendant paid back the loan plus interest thereon and cost of transfer. The witness further testified the before the plaintiff left at the end of September, 1972, he asked him to contribute for his halfshare ofthe property 35 but he was not able to pay anything and instead he gave the witness general Powers of Attorney dated

13/9/72. Exhibit D. 8. He further testified that before the plaintiffleft he also agreed that he was holding properly as a nominee. The plaintiff never complained about the management of the property by the witness, he started making claims on the property in 1988. In 1982, the witness asked the plaintiff to transfer the property into his daughter's names, the plaintiff promised he would but he never did.

**5** In cross-examination he further testified that the plaintiff borrowed Shs. 600,000/- between 1970-71 form the witness which he never paid back. He said that the loan he got form Grindlays Bank was paid in 36 Instalments from August 1972 to August 1975. He further testified that by the time the property was transferred to him it was fully paid for.

10 **15 20** Mr. Nangwala, learned counsel for the defendant submitted that though the plaintiff is registered as proprietor ofthe suit property, he never paid the purchase price as alleged. That there was no proofthat he had paid Shs. 135,000/- for the property either to DW3, the defendant. Counsel further submitted that the Transfer Deed Exhibit P.l was not detailed enough that it only showed that the vendor K. D. Patel divested himself of the ownership he had in the property. The deed does not disclose how Shs. 270,000/- was paid and that court had to look at other evidence to decide who paid the purchase price. He contended that from the evidence of DW2 and DW3 the purchase price was paid by the defendant. Counsel further referred to Exhibit D. 1 the Memorandum of Sale in which the defendant was strictly the purchaser but merely provided for appointment ofthe nominee by the defendant. And that's how the plaintiff came to be registered not that he had paid the purchase price. Counsel further argued that the principle of a resulting trust is also applicable to case. The principle is to the effect that where real property is purchased in **a** name of**a** stranger the resulting trust will be presumed in favour ofthe person who is proved to have paid the purchase money. Counsel referred court to the following cases.

### **Diwell vs Fai** nes **[1959] Label EA Ltd** vs. **Eclipse Ltd HCCS No. 1520** /86.

He contended that the exceptions to the above stated principle did not cover the plaintiffs case as he was not a son ofthe defendant. He argued that the facts of this case showed that there was a resulting trust in favour ofthe defendant and he was beneficial owner ofthe suit property.

30 Without prejudice to the foregoing, Counsel further submitted that the plaintiff was guilty of fraud. He made a representation to the defendant that he would pay half the purchase price or be a trustee in respect ofthe halfshare for the defendant's daughter Sushma. Counsel argued that from the evidence adduced the plaintiffdid not comply with any ofthe above conditions and his registration was therefore acquired through fraud and should not stand. Counsel referred to the following cases on fraud in support of his submission: **Waimaha Saw Milling Co Ltd Vs Waoine Timber Co Ltd (1926)** AC **101 at pg 106,** Davy Vs **Garret** (1878) **Ch D.4**

Mr. Rezida on his part submitted that the plaintiff, PW2 testified that he paid half the purchase price

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to 13. K. Patel. This evidence is supported by Exhibit P.l The Transfer Deed which was signed by the plaintiff, the defendant, PW2 and R. K . Patel.

**5** Counsel submitted that the transfer deed and the Memorandum of Sale Exhibit D. 1 were drawn by the defendant in his capacity as an advocate and he should be bound by them. He further contended that it was difficult to believe that the defendant could have drawn the transfer deed contrary to his interest. The defendant was free under S.209 (1) of Registration of Titles Act to modify the transfer deed to reflect the true position ofthe transaction. Counsel submitted that according to Meggary's Law on Real Property 5th Ed by P. V. Baker P. 307, a receipt clause is inserted to ensure a separate receipt being issued. Exhibit P. 1 therefore acted as receipt for payment by the plaintiff according to counsel. Counsel argued that no evidence had been adduced showing duress or fraud to enable the defendant depart from 10 the document executed by himself. Counsel referred to the case of **Ratilala G. Patel Vs Lalji Makanji [1957] EA314.**

**15** Counsel further submitted that DW3's evidence was unreliable as he contradicted himself. The amount of money he paid for the property did not tally on the two occasions he testified. On one occasion he talks of money raised from mortgaging the property but on another occasion he does not.]

**20** The defendant also testified that he nominated the plaintiff as a co-purchaser then as a trustee for his daughter and thirdly for the purpose of getting a loan. Counsel wondered which ofthe 3 versions should be taken as the truth. Counsel also contended that the issue of a resulting trust deed not arise as the 3 versions mentioned above do not show that the defendant intended to create a resulting trust. Counsel submitted that court should give effect to the intention of the parties which was to become copurchasers as they both paid for the property.

Counsel also referred to Exhibit P. 5 where the defendant admitted that the plaintiff was a co-owner of the property and his only claim was with regard to contribution to costs for renovations.

Counsel further submitted that there was no fraud proved on the part of the plaintiff and he was protected by S.56 of Registration ofTitles Act.

After summarising the evidence and consideration of the submissions by both counsel I make the following findings on the first issue. Both parties agree that the plaintiff and the defendant are registered as tenants in common on the suit property. For the reasons already mentioned in this judgement the defendant disputes the ownership by the plaintiff on the ground that he never contributed anything to the purchase ofthe property.

The question now is whether the plaintiff paid part of the purchase price or got himself registered fraudulently as the defendant claims.

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The evidence which will assist court to decide this issue is that of the plaintiff PW2 the documents produced by PW1 and the evidence of DW3, the defendant. DW2's evidence is not helpful as he testified that he was dealing with the defendant and he was not aware of the arrangements between the plaintiff and the defendant.

5 The defendant produced several exhibits in this court to show that he is the one who paid the purchase price to sell through DW2, however this is not surprising since he was the one who entered into the Memorandum of Sale with the seller and executed Exhibit D. 1. DW3 himselftestified that the plaintiff could not have paid money to DW2 he was his nominee meaning he could not deal with DW2 direct as he was not known.

10 15 20 The defendant claimed that part of the purchase money was raised through mortgaging the property. He also testified that by the time the transfer was made all the purchase money had been paid to the seller. However, the mortgage deed was executed one day after the purchase price had been paid according to the transfer deed. The plaintiff admitted having signed the mortgage but said that he did not know what the money was going to be used for. This is possible as they were good friends with the defendant. It would not have been possible to mortgage the property before it was transferred into the names ofthe plaintiff and the defendant. The plaintiff owed the defendant Shs. 600,000/- since 1971 which he has failed to repay. It is surprising that the defendant should have taken chances with the plaintiff who was already heavily indebted to him, by entering his name on Transfer Deed without anything to show that the plaintiff had not contributed any money and for what purpose his name was included on the Transfer Deed and Certificate of Title. The defendant was free to draft the Transfer Deed to reflect the true position between himself and the plaintiff, whether as a nominee or trustees as S.209( 1) Registration ofTitles Act allows him to do so, it states:

> "The forms contained in the several schedules may be modified or altered in the expression to suit the circumstances of every case; and any variation from such forms respectively in any respect not being a matter ofsubstance shall not affect their validity or regularity."

30 The defendant also testified that he had nominated the plaintiff first as co-purchaser secondly as a trustee for his daughter and thirdly because he wanted to raise a loan as his daughter who was a minor could not sign. This piece of evidence cast doubt on the whole evidence by the defendant. The question is what did he want? With regard to appointing the plaintiff as a trustee for his daughter he attempted to produce in evidence an alleged trustee deed signed the plaintiff, this was rejected by court as it was just a photocopy and the defendant having failed to produce the original. The document was also never put to the plaintiff when he testified.

The question is how could the defendant include the name of the plaintiff on a Certificate of Title

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without specifying for what purpose especially in view of the fact that he had different reasons for including him on the certificate. As an experienced lawyer he should have made his intentions very clear either on the Transfer Deed or a separate document. As was pointed out by the counsel for the plaintiff it is hard to believe that the defendant could have drawn up a document adverse to his interest. Especially considering his experience as a lawyer and in business where he claimed he was a shareholder in 29 companies in 1971. This strange behaviour by a lawyer cast doubt on his credibility and renders his testimony in court suspect: refer to the case R. G. Patel Vs Lalji Makanji cited above.

There is also a letter written by the advocates ofthe defendant to the plaintiff dated 13/9/90 Exhibit P.5 which the defendant admitted in court, it is partly as follows:-

> **10** "Re: Plot No. 19 Buganda Road, Kampala We are acting on the instructions of our client B. K. Patel Esq. by which we address you as follows:

As you are fully aware, the above property is co-owned by you and our client. When you left Uganda way back in 1972 the property was left in a very deplorable state, with a lot ofvim, our client started injecting a lot of money into the property for its renovation. Presently the property is a very beautiful site, properly renovated extended with a very beautiful garden.

The total value ofrenovation and restructuring ofthe property made by our client is Ug. Shs. 63,143,230.00/- valuation costs were Ug. Shs. 9.000.00/-, Painting cost Shs. 3,000.000/- Our client wishes to bring to your attention that as a co-owner you were obliged to meet half of that cost. In the premises we are instructed to demand from you Shs. 65,618.561/= which is halfofthe cost incurred on the property together with the interest thereon (half cost) at the rate of 35% p.a. for 1990 " (underlining is mine).

The above letter which clearly admits that the plaintiffwas a co-owner ofthe suit property was followed by another one Exhibit P. 4 dated 14/10/90 addressed by the defendant's lawyers to that ofthe plaintiff M/s Ayigihugu & Co. Advocates. It was partly as follows:

Re: Plot 19 Buganda Road Kampala 30

We are surprised to learn that you question the improvements made on the above property allegedly without consulting your client. You must be aware that our client was

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holding a general Power of Attorney from your client. There was no need of any prior consultations before anything could be done on the properly. That not withstanding and since your letter was written with provoking audacity, we wish, at this point to bring it to your attention that the said property was bought solely by our client and your client was only nominated by our client to be a co-buyer. It is our client who solely met the purchase price ofthe property. The two were registered as co-owners but your client has never bothered to pay what is due to our client in order to redeem his share.

Presently the property is valued at Shs. 600,000,000/-

Be it known to you that our client cannot give you an account of the rent from the property before your client acquires a *locus standi* to demand it.

This property has at all material times been under the management ofour client who will continue to do unreservedly "

15 The letter exhibit P.5 together with what I have already pointed out, I find that the plaintiff paid for his share ofthe property, there was no way the defendant was going to instruct his lawyers to write the said letter admitting that the plaintiff was a co-owner as late as 1990 if he had not paid part ofthe purchase price.

The letter written later Exhibit P.4 by the defendant's lawyers was an afterthought and goes to show how unreliable the defendant is, one time admits a certain fact the next time he denies it all on paper without fear of losing credibility.

**20** From the evidence on record. I have found that the plaintiff paid half of the purchase price for the property to the defendant who was the person conducting the whole transaction as a lawyer and friend.

25 30 The defendant tried to impeach the plaintiffs title by alleging fraud on his part. Fraud as was rightly pointed out by counsel for the defendant it must be pleaded and strictly proved. The standard of proof is higher than mere balance of probability. Reference is made to the cases cited by counsel and the cases of Kampala Bottlers Ltd V. Damanico (U) Ltd Civil Appeal No. 22/92; John Ruhiga vs. Elias **Rugycra** Civil Appeal No. 1 of 1988. As I have already found that the plaintiff was offered to pay for his half of the share of the property which he must have done through the defendant. He cannot now be found to have acquired the same property fraudulent for the reason that he never paid for it that he made a *misrepresentation* that he would. I am sure ifthe plaintiff had not paid part of his share of the purchase price and the defendant was a good friend as he claimed he would have used part ofthe rent to pay himselfsince he was in complete control of the property, armed with Power of Attorney. He could have been accounted to the plaintiff. However it appears that the defendant never wanted to share

anything with the plaintiffexcept on paper. From the beginning the defendant lacked transparency. This is shown by the fact that the Shs. 3,000/- which was credited to the purchase price from rent, the defendant took it as his contribution I would have thought that Shs. 1,500/- should have been credited to the plaintiff as a co-purchaser. The allegation that he had been nominated as a trustee for Sushma is also ruled out by Exhibit P. 5. If Court was to believe the defendants evidence that the plaintiff was to act as a trustee for the defendant's daughter then one wonders why the alleged trustee was allegedly executed in September 1972 long after the plaintiff had been registered as a proprietor in February 1972.

10 15 20 Also from the conclusion already reached that the plaintiff paid for the property, the issue ofresulting trust is ruled out. The defendant never wrote even one demand letter to the plaintiff requesting him to pay for his share ofthe property. The issue of payment never arose for a period of 18 years from 1972 to 1990 when the plaintiff started demanding for rent from the property "with provoking audacity." Although the plaintiffwas no longer living in Uganda, the defendant knew where he was they even met in India in 1982. So there was no reason why the defendant never demanded for payment from the plaintiffwhich means that the plaintiff never owed him any money. The evidence shows it was never the intention ofthe defendant to create a resulting trust and none was created. The defendant has failed to adduce oral evidence to impeach the documentary evidence. In contrast to the evidence of the defendant full of contradictions and inconsistencies the plaintiff and his witness gave testimony which was simple, credible and straight forward and consistent with the contemporary documents. The plaintiffs title is therefore protected under S. 184 of Registration of Titles Act as no fraud, lack or consideration and illegality has been proved against him.

25 The next issue is whether the plaintiffs Power of Attorney given to the defendant in 1972 has been revoked. From the evidence ofPW1 the plaintiff and Exhibit P. 4, it is proved that the plaintiff before he left the country in 1972, he gave the defendant general Power of Attorney to manage and administer all his property and affairs in Uganda. It was dated 13/9/72. Exhibit D. 8. Counsel for the defendant submitted the Power ofAttorney never existed in the first place as it was never registered as is required by law under S. 154 ofR. T. A. The Power ofAttorney though not registered was left with the defendant who should have registered it as the plaintiffleft the country in a hurry as both PW2 and PW3 testified. The defendant as a lawyer and the person who had been instrumental in drafting documents in respect ofthe property should have registered this document.

35 According to the submissions by his counsel, it appears he did not. However, he went ahead to use the same Power of Attorney to manage the property as was indicated in Exhibit P.4, the letter written by the defendant's lawyers to the plaintiff. Although the Power of Attorney was not registered the defendant acted on it, for example he went ahead to renovate the property without notifying the plaintiff. I think the defendant is estopped from denying the existence ofthis Power of Attorney, justice should not be defeated by procedural technicalities. The purpose ofregistering the document is to give notice to third parties who may want to know the status ofthe property.

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This Power ofAttorney was revoked by the plaintiff by his letter dated 27/10/89 to the defendant, which was filed with the registrar of documents as No. 3530 dated 22/11/90. I have therefore found that the Power of Attorney of 1972 was revoked.

5 **10** I shall handle issue No. 4 before issue No. 3, which whether equitable mortgage was created by the plaintiffin favour ofthe defendant by depositing the certificate oftitle with him to manage the property. The defendant has been managing the suit property for various reasons. In the first place when this property was bought the plaintiff was living in Kikonda while the defendant was living in Kampala where the property was situated and therefore it was easy for him to manage. When the plaintiff had to leave the country in 1972 he left the defendant with Power of Attorney which gave him management over all the plaintiffs property and he remained in management until the Power of Attorney was revoked in 1990,1 therefore find that the issue of equitable mortgage does not arise and none was created.

15 **20** Issue No 3 is whether the plaintiff is entitled halfrent collected from the suit property. The defendant refused to disclose to the plaintiffthe rent he had collected from the premises since it was acquired on the ground that the plaintiff not being owner of the property could not make any claims on it. I have already decided that the plaintiff paid for his part of the property and therefore he is entitled to full benefits as proprietor. The certificate of title, the Exhibit P2 states that the proprietors of Plot 19 Buganda Road are Babubhai Kalidas Patel and Hariprasad Rambhai Patel as Tenants in Common in equal shares. The plaintiff is therefore entitled to the half ofthe rent collected from the date when he became proprietor ofthe suit property.

25 The defendant in his evidence was very evasive as to how much rent he had received from the property which is a commercial building. DW1 Prafuchandra R. Patel was the defence witness who was supposed to testify that he stayed in the premises from 1982 to 1985 supervising the rehabilitation of the building and he only started paying rent in 1985, he said the defendant was his friend. He further testified that the property was badly looted in 1985 and that the defendant carried out renovations and extensions on the property.

In cross examination he stated that there were several tenants in the building. He was paying rent of Shs. 2.4 million a year. He did not know how much the other tenants were paying. This witness was ordered to produce the Tenancy Agreement which he said he had but he did not.

30 The defendant himselfwas not very helpful to court as he did not produce any documents showing how much rent he had collected during the time he was managing the property. He testified that the premises were occupied by the Israelites from November 1971 until they left in 1972, they stayed for 3 to 4 months. The agreement concerning this tenancy got lost in City House, brom 1972 to 1981 the property was rented by a kindergarten, that sometimes they would pay and sometime they did not. PW2 testified

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5 that the defendant had told that the kindergarten was paying Shs. 6,000/- per month. Exhibit D.8 a letter dated 8/8/85 where DW1 was reporting looting of personal and company properties to police, he stated that 7 companies named in that letter were occupying the building. But no evidence of how much rent they were paying was disclosed in court either by DW1 or DW3. DW3 testified that when the Kindergarten left he took 2 years rehabilitating the place. After the property was looted, he started rehabilitation from 1987 and this took 3 years. He had to borrow Shs. 120 million from his nephew to do the work. The rehabilitation ended in 1991. He testified that at the moment there were two tenants occupying the building but did not disclose what rent they were paying.

**10** However the defendant tendered in evidence two reports on the renovation carried on the property. One was Exhibit D.l 1 made in May 1990 and added up to Shs. 63,143,230/-. The second one was dated 11/4/92 and added up to Shs. 56,110,000/-.

This brings me to the last issue whether the defendant carried out renovations and whether he is entitled to half the cost of renovations. There is evidence or record that the defendant carried out some renovations on the premises.

15 **20** 25 This was done in his capacity as the manager ofthe property by Power ofAttorney given to him by the plaintiff. The plaintiffin his evidence testified that he was willing to pay part ofthe cost of renovation after the defendant has accounted for rent and other expenses. I entirely agree with the plaintiffthat the defendant is under duty as the person who has been managing the property to disclose not only the renovations he carried out but also the rent he collected. This Court cannot assess what the defendant is entitled to when all the facts are not before court. My finding on the last issue is therefore that the defendant should account for the rent he collected from the property since the time it was transferred into their names with the plaintiff until the date ofjudgement. After which the plaintiff can also pay for half the cost ofrenovations and expenses. There is evidence on record that the property was valued at Shs. 600,000,000/- in 1990 it should therefore not be difficult for valuers to assess how much rent should be paid for the building.

The defendant has not proved his claim to the satisfaction ofCourt on balance of probability.

The defendant's Counterclaim cannot succeed as the Court found that the plaintiff paid for his part of the purchase price of the suit property, it is accordingly dismissed.

30 In the final result the plaintiff has proved his case against the defendant on balance of probabilities and he is entitled to the following reliefs:-

**1.** The plaintiff owns half of the suit property and he is entitled to vacant possession of 50% thereof within 30 days from the date hereof.

$$-126-$$

- 2. The plaintiff is entitled to 50% of the rent collected minus expenses incurred by the defendant since the property was registered on 7/2/72 until the date of this judgement. - 3. Interest on (2) above at 20% per annum from the date ofjudgement until payment in full.

The plaintiff is also entitled to the costs of this suit.

The defendant's Counterclaim stands dismissed. 5

M. KIREJU. JUDGE. 25/6/96.

**TN** THE **HIGH COURT OF UGANDA AT KAMPALA CIVIL SUIT NO**- 981 **OF** 1990

HARIPRASAD RAMBHAI PATEL PLAINTIFF VERSUS

BABUBHAT KALIDAS PATEL DEFENDANT

## DECREE

THIS CASE coming on this day for hearing before Hon. LADY JUSTICE MARGARET KIREJU in the presence of ALEX REZIDA ESQ Counsel for the plaintiff and JAMES NANGWALA ESQ Counsel for the defendant AND THIS CASE coming on this day for final disposal before Hon. LADY JUSTICE MARGARET KTREJU in the presence of P. S AYIGIHUGU holding brief for ALEX REZTDA and SUSAN WASAGALT holding belief for JAMES NANGWALA.

TT TS HFPERY DECREED that judgment be entered i n favour of the plaintiff fnr vacant possession of 50% of the suit property within from the date of judgment; 50% of the rent collected minus expenses incurred by the defendant from the 7th day of February, 1977 until the date of judgment plus interest thereon at the rate ful 1 . 30 days of 2.0% per annum from date of judgment till payment in

TT IS FURTHER DECREED that the defendant pays the costs of th i s suit and that the plaintiff's counter clai d dismissed.

June, 1 OOF.. GTVEN under my hand and the seal of the 25th day of

REGISTRAR

$2 -$ We Approve COUNSEL FOR THE PLAINTIFF THE DEFENDANT COUNSEL FOR/

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EXTRACTED BY:

NANGWALA & CO. ADVOCATES,

SUITE 7, FOUNTAIN HOUSE,

PLOT NO. 55, NKRUMAH ROAD

P. O. BOX 10304

KAMPALA.