Kampala Capital City Authority v Ham Enterprises (U) Limited (Miscellaneous Cause 13 of 2023) [2024] UGCommC 174 (3 May 2024)

## 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION) MISC. CAUSE NO. 13 OF 2023**

# 10 **KAMPALA CAPITAL CITY AUTHORITY ::::::::::::::::::::::::::::: APPLICANT VERSUS**

**HAM ENTERPRISES (U) LTD :::::::::::::::::::::::::::::::::::::::: RESPONDENT**

### **BEFORE: HON. LADY JUSTICE PATIENCE T. E. RUBAGUMYA** 15 **RULING**

Introduction

This application was brought by way of Notice of Motion under **Section 29 of the Local Governments (Rating) Act, 2005, Section 98 of the Civil Procedure Act, Cap. 71, Rules 3, 4 and 5 of the Local Governments** 20 **(Rating) Regulations SI No. 38 of 2006** and **Order 52 Rules 1 and 3 of the Civil Procedure Rules SI 71-1** seeking orders that:

- 1. The Applicant be granted a summary warrant to recover UGX 691,752,443.06/= (Uganda Shillings Six Hundred Ninety-One Million Seven Hundred Fifty-Two Thousand Four Hundred Forty-25 Three and Six Cents Only) due to it in property rates from the Respondent in respect of its commercial properties. - 2. Costs of this application be provided for.

#### 5 Background

The background of this application is contained in the affidavit of Mr. Norbert Seruwagi, the Applicant's Manager Compliance and Inspectorate, and is summarized below:

- 1. That the Applicant is a statutory body corporate charged with the 10 mandate of administering Kampala Capital City on behalf of the Central Government and with the legal obligation to value, levy and collect property rates from all owners and/or tenants of commercial and residential rented properties within its jurisdiction. - 15 2. That in fulfillment of its legal obligations, the Applicant in or around 2017, commenced the valuation of all properties including the Respondent's commercial properties described as P117014246, P117014247, P117004724, P117004725 and P117004726 located in its Central Division for purposes of getting the rate payable. - 20 - 3. That the Applicant further carried out a supplementary valuation exercise in or around 2018, and valued the Respondent's commercial properties described as P118001690, P118001691 and P118001692 25 located in Kisenyi 1 Parish in the Central Division. - 4. That the Respondent's properties were valued as follows: - a) P117004724 with a ratable value of UGX 55,000,000/= was subjected to the approved rate of 6% rate hence yielding an 30 annual rate of UGX 3,300,000/= payable by the Respondent per annum. - b) P117004725 with a ratable value of UGX 277,311,666/= was subjected to the approved rate of 6% hence yielding an annual

- 5 rate of UGX 16,638,699.96/= payable by the Respondent per annum. - c) P117004726 with a ratable value of UGX 463,558,100/= was 10 subjected to the approved rate of 6% rate hence yielding an annual rate of UGX 27,813,486/= payable by the Respondent per annum. - d) P117014246 with a ratable value of UGX 418,000,000/= was 15 subjected to the approved rate of 6% rate hence yielding an annual rate of UGX 25,080,000/= payable by the Respondent per annum. - 20 e) P117014247 with a ratable value of UGX 290,000,000/= was subjected to the approved rate of 6% rate hence yielding an annual rate of UGX 17,400,000/= payable by the Respondent per annum. - 25 f) P118001690 with a ratable value of UGX 248,573,840/= was subjected to the approved rate of 6% rate hence yielding an annual rate of UGX 14,914,430.40/= payable by the Respondent per annum. - g) P118001691 with a ratable value of UGX 235,447,175/= was subjected to the approved rate of 6% rate hence yielding an annual rate of UGX 14,126,830.50/= payable by the Respondent per annum. - h) P118001692 with a ratable value of UGX 562,438,520/= was subjected to the approved rate of 6% rate hence yielding an annual rate of UGX 33,746,311.20/= payable by the Respondent per annum.

- 5 5. That the Applicant's Directorate of Revenue Collection issued a mandatory statutory demand but all efforts to collect the sums due proved futile and thus the matter was forwarded to the Applicant's lawyers for legal action. - 10 6. That through its Director/CEO Hamis Kiggundu, the Respondent, on 2nd August, 2018, requested installment payments for the property rates for a period of six months which was granted on 8th August, 2018. - 15 7. That on 7th December, 2020, the Respondent through its Director/CEO, filed a response claiming that the Respondent had a ten-year tax holiday from the Government which covered property rates. However, that upon seeking clarification, the Permanent 20 Secretary/Secretary to the Treasury, Ministry of Finance, Planning and Economic Development, clarified that the property rates were not among the tax incentives granted to Ham Enterprises (U) Limited by the Government and the response from the Permanent Secretary/Secretary to the Treasury was communicated to the 25 Respondent by the Applicant. - 8. That despite the Respondent being aware of the debt, it has either ignored, failed, and/or refused to pay the outstanding amount of UGX 691,752,443.06/=. - 9. That the Respondent was served with a demand notice cum notice of intention to sue for property rates arrears amounting to UGX 691,752,443.06/= but the Respondent has adamantly refused to 35 pay.

- 5 In reply, the Respondent through Ms. Namutebi Shamilah, the Legal Secretary of the Respondent opposed the application contending that: - 1. The Respondent was granted a tax holiday of ten years and thus the Applicant erroneously assessed its property tax. - 10 2. Some of the properties allegedly assessed herein were still undergoing construction at the commencement of the valuation and thus the Respondent disputes such fictitious valuation. - 15 3. Some of the properties are jointly owned by the Government of Uganda and the Respondent and yet the application is against the Respondent only. - 4. The Honorable Court lacks jurisdiction to grant a summary warrant 20 as prayed by the Applicant and therefore the application should be dismissed with costs to the Respondent.

In rejoinder, Mr. Norbert Seruwagi emphasized his averments in the affidavit in support contending that:

- 1. The Permanent Secretary/Secretary to the Treasury, Ministry of 25 Finance, Planning and Economic Development clarified to the Applicant that the tax incentives granted by the Government to the Respondent were specially to Ham Agro-Processing Industries and the construction and redevelopment of Nakivubo War Memorial Stadium and did not include the Respondent's commercial 30 properties. - 2. The property rates were not among the tax incentives, which were granted to Ham Enterprises (U) Limited by the Government and the Respondent has not provided any evidence to prove that the

- 5 Applicant erroneously assessed property rates on its commercial properties. - 3. The Respondent objected to the initial values assessed by the 10 Applicant before the Applicant's Valuation Court in 2017 to which the Valuation Court considered a supplementary valuation which was published in 2018 and the Respondent did not appeal against the ruling of the Valuation Court. - 15 4. The Respondent's properties described as P117004724, P117004725, P117004726, P118001690, P118001691, and P118001692 all located formerly on Plot 28 Nakivubo Place Road registered in the name of the Trustees of Nakivubo War Memorial Stadium belong to the Respondent who entered into a Private-Public 20 Partnership arrangement with the Government for the construction and redevelopment of Nakivubo War Memorial Stadium and acquired leases registered in its name. - 25 5. The liability to pay property rates lies on the owner of the property and the Respondent being the registered owner of the properties described as P117004724, P117004725, P117004726, P118001690, P118001691 and P118001692 is liable to pay the outstanding property rates to the Applicant. - 30 Representation

The Applicant was represented by Counsel Ahabwe Jones of the Directorate of Legal Affairs, Kampala Capital City Authority while the Respondent was represented by Counsel Kato Wilson of M/s Baraka Legal Associated Advocates.

5 The parties were directed to file written submissions which they did and the same have been considered by the Court.

### Issues for Determination

- 1. Whether the Applicant is entitled to a summary warrant to recover UGX 691,752,443.06/= from the Respondent? - 10 2. What remedies are available to the parties?

Counsel for the Respondent raised a preliminary point of law which this Court is duty bound to resolve prior to the determination of the issues so raised.

The Supreme Court in the case of *Uganda Telecom Ltd Vs ZTE* 15 *Corporation SCCA No.3 of 2017*, held that a trial Court has the discretion to dispose of a preliminary point either at or after the hearing. However, that the exercise of the discretion depends on the circumstances of each case.

20 It is therefore trite that where there is a preliminary objection capable of disposing of the matter in issue, it is judicious to first determine the said objection before embarking on the merits of the case.

Given the above, I shall first proceed with determination of the objection 25 as raised.

The preliminary objection so raised was whether this Honorable Court is vested with the jurisdiction to grant a summary warrant under **Section 29 of the Local Governments (Rating) Act?**

30 Respondent's submissions

7 Counsel for the Respondent submitted that according to the wording of **Section 29 (3) and (4) of the Local Governments (Rating) Act,** the law

5 is very instructive on whom and in which Court the application for a summary warrant should be filed. Counsel whilst relying on the case of *Gagula Benefansio Vs Wakidaka Merabu HCCA No. 29 of 2006,* argued that given the fact that jurisdiction is a creature of statute, issues of jurisdiction are substantive and go to the core of the case and if the 10 Court lacks jurisdiction over the subject matter in dispute then its judgment and orders are mere nullities and simply void.

Counsel for the Respondent further relied on the case of *URA Vs Rabbo Enterprises (U) Ltd & Anor Supreme Court Civil Appeal No. 12 of 2004* wherein the term jurisdiction was defined to mean authority which 15 a Court has to decide matters that are before it or take cognizance of matters presented in a formal way for its decision and that it is a trite principle of law that the jurisdiction of a Court must be found in a statute.

Counsel for the Respondent further submitted that according to the **Local Governments (Rating) Act** and **Local Governments (Rating)** 20 **Regulations,** the jurisdiction to grant a summary warrant is vested in the Magistrate within the area where the property is located.

Counsel further argued that it would be an absurdity to presume that the legislators were not aware of the fact that some cases would exceed the pecuniary jurisdiction of the Magistrates Courts. In conclusion, Counsel

25 for the Respondent prayed that this application be dismissed with costs on grounds that this Court has no jurisdiction to grant the summary warrant as prayed for by the Applicant.

#### Applicant's submissions

Counsel for the Applicant submitted that much as **Section 29 (3) of the**

30 **Local Governments (Rating) Act** provides that the application for a 5 summary warrant is to be made to a Magistrate having jurisdiction within the area where the property is situated, the Applicant's claim is above the pecuniary jurisdiction of the Magistrates Courts.

Counsel for the Applicant also submitted that as per **Article 139 of the Constitution of the Republic of Uganda, 1995** and **Section 14 of the**

10 **Judicature Act, Cap. 13**, the High Court has unlimited original jurisdiction in all matters as may be conferred on it by the Constitution or other law subject to the provisions of the Constitution.

Counsel for the Applicant further submitted that **Section 207 (1) of the Magistrates Courts Act** provides that the jurisdiction of Magistrates 15 presiding over Magistrates Courts for the trial and determination of causes and matters of a civil nature shall be as follows-

*a) a Chief Magistrate shall have jurisdiction where the value of the subject matter in dispute does not exceed fifty million shillings and shall have unlimited jurisdiction in disputes relating to conversion,* 20 *damage to property or trespass.*

Counsel for the Applicant submitted that in the instant application, the subject matter value is beyond UGX 50,000,000/=.

In conclusion, Counsel for the Applicant submitted that this Honorable Court has the jurisdiction to hear and determine this matter since the 25 amount claimed is beyond the pecuniary jurisdiction of the Magistrates Courts.

### 5 Analysis and Determination

As was laid down by **Hon. Justice Stephen Mubiru** in the case of *Koboko District Local Government Vs Okujjo Swali HCMA No. 1 of 2016,* jurisdiction is the first test in the legal authority of a Court and its absence disqualifies the Court from exercising any of its powers.

- 10 It is also trite that a Court cannot confer upon itself jurisdiction where there is none and neither can the parties confer jurisdiction upon a Court by consent, either express or implied. The issue of jurisdiction of the High Court was further considered in the case of *Ozuu Brothers Enterprises Vs Ayikoru Milka, High Court Civ. Rev. No. 02 of 2016* wherein **Hon.** - 15 **Justice Stephen Mubiru** held that the jurisdiction of the High Court is unlimited and can only be limited by the Constitution itself.

Further in the case of *Businge Maxim and Another Vs Sinopec Services (U) Ltd HCCS No. 07 of 2023,* **Hon. Justice George Okello** held that:

"*The law has, therefore, since been consistently clarified that, the High* 20 *Court only lacks power to entertain matters where its jurisdiction is expressly limited by the Constitution."*

Furthermore, the Court of Appeal in the case of *Opio Daniel Vs Otaka Vincent & Lira Municipal Council C. A. C. A No. 124 of 2013,* emphasized that if a claim exceeds the pecuniary jurisdiction of a 25 Magistrates Court then such a Court does not have pecuniary jurisdiction to entertain the matter. (See also; *Koboko District Local Government Vs Okujjo Swali (supra)* and *Tibwomu Charles Wanenge Vs Aweko Charles & 3 others HC Civil Appeal No. 57 of 2015).*

5 In the matter at hand, the Respondent submitted that this Court does not have the jurisdiction to grant the Applicant a summary warrant under **Section 29 of the Local Governments (Rating) Act**.

**Section 29 (3) and (4) of the Local Governments (Rating) Act** provide that:

- 10 "(3) *If, after the service of the demand notice, the amount is not paid within two months after the service of the notice, the Local Government may apply to the Magistrate having jurisdiction within the area where the property is situated for a summary warrant to recover the amount from the person liable.* - 15 *(4) The Magistrate shall grant the warrant on being satisfied that the person sought to be proceeded against is the person liable to pay the amount, that the amount is due from him or her and that he or she has been duly served with a demand notice."*

Counsel for the Respondent relied on the case of *URA Vs Rabbo* 20 *Enterprises (U) Ltd & Anor (supra)* wherein the Supreme Court held that the jurisdiction of the Tax Appeals Tribunal to handle tax disputes is premised in the Constitution. This authority is distinguishable in my view from the case before me. The High Court lacks unlimited original jurisdiction in tax matters on grounds that the jurisdiction is conferred on

25 the Tax Appeals Tribunal by **Article 152 (3) of the Constitution of the Republic of Uganda** as was held by the Supreme Court in the case of *URA Vs Rabbo Enterprises (U) Ltd & Anor (supra).* In other words, the limited original jurisdiction of the High Court in tax matters is limited by the Constitution itself which is not the case in the instant matter where the 30 jurisdiction is conferred on the Magistrate by an Act of Parliament. The Local Governments (Rating) Act therefore did not in my view oust the

- 5 unlimited original jurisdiction of the High Court as provided for in **Article 139 (1) of the Constitution of the Republic of Uganda** and as such this in my view implies that the Magistrates Courts and the High Court have concurrent jurisdiction in matters of recovery of property rates by summary warrant. - 10 In matters where an issue of concurrent jurisdiction arises, **Hon. Justice Boniface Wamala** in the case of *Male H. K. Mabirizi Vs Attorney General HCMA No. 193 of 2021* held that:

"*… where an application contains matters that are both within the ambit of the High Court and the Magistrates Court, the proper option* 15 *is to file in the High Court."*

In addition, as rightly submitted by Counsel for the Applicant, the claim being sought to be recovered of UGX 691,752,443.06/= is outside the Magistrates Courts' pecuniary jurisdiction. Courts have emphasized that it is illegal for a Magistrate Court to exercise the pecuniary jurisdiction

20 that it does not have. (See: *Koboko District Local Government Vs Okujjo Swali (supra).*

In supplement, the Court in the case of *Male H. K. Mabirizi Vs Attorney General (supra),* went on to state that:

*"Clearly in such a case, even if some matters are triable by the* 25 *Magistrate Court, it cannot try the matters that are outside its competence."*

Further, in the case of *Kampala Capital City Authority Vs Aya Investments (U) Ltd t/a Pearl of Africa HCMC No. 10 of 2019,* **Hon. Lady Justice Anna B. Mugenyi** while considering a similar application,

5 granted a summary warrant for recovery of unpaid property rates under **Section 29 of the Local Governments (Rating) Act**.

In light of the fact that in this instant case the jurisdiction of the High Court to hear matters for summary warrants is not ousted by the Constitution of the Republic of Uganda and the fact that the monies being 10 sought to be recovered fall outside the pecuniary jurisdiction of the Magistrates Courts, I find that the High Court has the jurisdiction to hear an application for the grant of a summary warrant under **Section 29 of the Local Governments (Rating) Act.**

In the premises, this preliminary objection is overruled.

15 I shall now proceed to resolve the matter on its merits.

# Issue No. 1: Whether the Applicant is entitled to a summary warrant to recover UGX 691,752,443.06/= from the Respondent?

### Applicant's submissions

property rates arrears.

Counsel for the Applicant submitted that as averred under paragraphs 5, 20 6, 8, and 9 of the affidavit in support of the application, the Applicant published the valuation list and rates as well as the supplementary valuation as required by law but the Respondent declined to pay its property rates. Counsel further submitted that between 21st August, 2017 and 7th August, 2020, the Applicant's Directorate of Revenue Collection 25 issued mandatory statutory demands which were received by the Respondent but it still refused or neglected to pay the sums due in

Counsel for the Applicant further submitted that on 2nd August, 2018, the CEO of the Respondent requested to pay the property rates in installments

5 which prayer was granted but in 2020, he informed the Applicant that the Respondent had been granted a ten-year tax holiday by the Government.

Further, that on seeking clarification, the Permanent Secretary/Secretary to the Treasury, Ministry of Finance, Planning and Economic Development informed the Applicant that the assessed property rates were not among

10 the tax incentives granted to Ham Enterprises (U) Limited. Counsel then submitted that this information was passed on to the Respondent and a demand notice cum notice of intention to sue was also served onto the Respondent.

In conclusion, Counsel for the Applicant averred that two months lapsed 15 since the demand notice was served and that the Respondent still refused or failed to pay the property rates amounting to UGX 691,752,443.06/=.

### Respondent's submissions

Counsel for the Respondent submitted that under **Section 21 of the Local Governments (Rating) Act,** the Clerk of the Valuation Court is supposed 20 to publish in the Gazette and twice within a period of ten days in at least one newspaper, if any, circulating within the area of jurisdiction of the Local Government, a notice that the valuation list has come into force.

Counsel further contended that the notice is also supposed to be published twice in at least one electronic media or radio operating in the area but

25 that the Applicant did not adduce any evidence to show whether the notice of the valuation list was published twice within a period of ten days in at least one newspaper or published the same notice twice in at least one electronic media or radio operating in the area as required by the law.

Counsel for the Respondent further submitted that due to the failure of 30 the Applicant to comply with the above requirement, it was made difficult

- 5 for the Respondent to object to the Applicant's valuation as they included properties that were still under construction. In conclusion, Counsel for the Respondent submitted that according to **Section 29 (4) of the Local Governments (Rating) Act,** the Court has to be satisfied that the person being proceeded against is the one liable but in this case, some of the - 10 properties that were assessed are in the names of the Respondent and the Government thus the application should be dismissed with costs.

#### Analysis and Determination

## **Section 29 (1) - (4) of the Local Governments (Rating) Act** provides that:

- 15 *"(1) If a rate is not paid by the date appointed for that purpose, the Local Government may cause a demand notice to be served upon the person liable, requiring him or her to pay the rate together with interest, if any, on that rate within two months after the service of the notice.* - 20 *(2) The notice shall be served by delivery to the person liable personally or by being left at his or her ordinary place of residence or business.*

*(3) If, after the service of the demand notice, the amount is not paid within two months after the service of the notice, the Local Government* 25 *may apply to the Magistrate having jurisdiction within the area where the property is situated for a summary warrant to recover the amount from the person liable.*

> *(4) The Magistrate shall grant the warrant on being satisfied that the person sought to be proceeded against is the person liable to pay the*

5 *amount, that the amount is due from him or her and that he or she has been duly served with a demand notice."*

According to **Section 29 (4) of the Local Governments (Rating) Act,** before a summary warrant is granted, the Court has to be satisfied that:

a) The person sought to be proceeded against is liable to pay the 10 amount.

- b) The amount is due from him or her. - c) He or she has been duly served with a demand notice and two months have lapsed without the Respondent paying off the property rates due. - 15 In the instant case, Counsel for the Applicant averred that the Respondent's properties described as P117014246, P117014247, P117004724, P117004725, P117004726 located in its Central Division, P118001690, P118001691 and P118001692 located in Kisenyi 1 Parish in the Central Division, were valued and the valuation as well as the 20 supplementary valuation lists and rates were published in the gazette as is required by law. The Respondent on the other hand contends that in line with **Section 21 of the Local Governments (Rating) Act,** the Applicant failed to comply with the publishing guidelines of the valuation lists and rates which in turn made it difficult for the Respondent to object 25 to the valuation since some properties were still under construction.

#### **Section 4 of the Local Governments (Rating) Act** provides that:

*"For purposes of Section 3, a Local Government shall cause to be made, for its area of jurisdiction a first valuation list and thereafter a valuation list, once at least in every five years, or such longer period* 30 *as a Local Government may determine."* ## 5 **Section 21 of the Local Governments (Rating) Act** also provides that:

*"(1) The Clerk of the Valuation Court shall cause to be published in the Gazette and twice within a period of ten days in at least one newspaper, if any, circulating within the area of jurisdiction of the Local Government to which the valuation list relates, a notice that the* 10 *valuation list has come into force.*

> *(2) The notice shall also be published twice in at least one of the electronic media or radios operating in the area and it shall be placed on the notice boards of the Local Government in the area."*

The Respondent contends that according to **Section 21 (2) of the Local**

- 15 **Governments (Rating) Act,** the Applicant ought to have published the valuation and supplementary valuation lists and rates twice in at least one electronic media or radio operating in the area but no evidence was adduced to show that the Applicant complied with the same. - In the instant case, under paragraphs 5 and 6 of the affidavit in support 20 of the application, the Applicant stated that after completion of the valuation list in 2017 and the supplementary valuation list in 2018, the valuation and the supplementary valuation lists and rates were published in the Gazette. Under paragraphs 7 and 8 of the affidavit in rejoinder, the Applicant further averred that after the same valuation and supplementary 25 valuation; lists were published in the New Vision and Bukedde newspapers to notify the public about the coming into force of the same.

To buttress the same, the Applicant attached **annexures** "**A"** and "**B**" to the affidavit in support of the application and **annexures** "**F", "G", "H**" and "**I**" attached to the affidavit in rejoinder. I have carefully examined 30 **annexures "A", "B", "F", "G", "H"** and **"I"** and in my view, the Applicant

- 5 in compliance with **Section 21 (1) of the Local Governments (Rating) Act**, published the valuation and supplementary valuation lists. However, Counsel for the Respondent contends that the Applicant should have also published the same in electronic media or radio operating in the area as required by **Section 21 (2) of the Local Governments (Rating) Act** as 10 their failure to comply with the above section made it difficult for the - Respondent to object to the valuation and supplementary valuation as some of the properties included in the valuation were still under construction. - **Section 1 (e) of the Electronic Media Act, Cap. 104** defines electronic 15 media to mean communication of any message to the public by means of any electronic apparatus. I concur with Counsel for the Respondent that no evidence was adduced to show that the Applicant published the valuation and supplementary valuation lists and rates in electronic media or radio operating in the area as required by law. However, I disagree with 20 the assertion that the Respondent was unable to object to the assessment due to the failure of the Applicant to publish the notices via electronic media and radio.

Under paragraphs 6 and 8 of the affidavit in rejoinder, it was stated that the Applicant valued the Respondent's properties in issue. After the 25 valuation and supplementary valuation, the Respondent objected to the assessment before the Valuation Court, and the objections were considered as per **annexures** "**A", "B", "C", "D"** and **"E"** attached to the affidavit in rejoinder. These annexures are rulings of the Valuation Court in respect of the objections lodged by the Respondent after the valuation 30 and supplementary valuation by the Applicant. The objections lodged included grounds that the property rates so assessed were too high as per

- 5 **annexures** "**A"** and **"B"** and that the buildings were still under construction as per **annexures "C", "D"** and "**E".** All the objections so raised by the Respondent were considered and the Valuation Court indeed reduced the property rates. - The Respondent contended that some of the properties were under 10 construction. However, the Respondent did not adduce any evidence to support this assertion herein and therefore Court cannot consider the same.

In relation to the contention by the Respondent that Government granted the Company tax incentives and that the property rates were thus 15 erroneously assessed, the Applicant stated that the Ministry of Finance, Planning and Economic Development clarified that the property rates were not included in the tax incentives granted by Government. The Respondent did not provide any other evidence to rebut the contention of the Applicant and therefore in the circumstances, this argument is not tenable in the 20 absence of any other information.

Furthermore, Counsel for the Respondent contended that some of the assessments by the Applicant to the Respondent are in the names of the Respondent and the Government of Uganda, an indication that it is not only the Respondent that is liable to pay the amount being demanded. 25 According to **annexure "V"**, the demand notice from the Applicant to the Respondent dated 18th October, 2022, attached to the affidavit in support of the application; the Applicant informed the Respondent about the outstanding balance of UGX 691,752,443.06/= and requested the Company to pay the same. Attached to that demand notice were the statements of account of the commercial properties in issue as at 18th 30 October, 2022.

- 5 I have carefully examined the statements of account and noted the following: - a) The Respondent's commercial properties described as P117014246 and P117014247 indicate the name as "**Ham Enterprises Limited".** - 10 b) The Respondent's commercial properties described as P117004726, P117004725, P117004724, P118001690, P118001691, and P118001692 indicate the name as **"Government of Uganda and Ham Enterprises Limited".** - Considering the above, Court is satisfied that the Respondent is liable to 15 pay the property rates amounting to **UGX 169,920,000/= (Uganda Shillings One Hundred Sixty-Nine Million Nine Hundred Twenty Thousand Only)** in respect of the Respondent's commercial properties described as P117014246 and P117014247 since the notices indicated the person liable as the Respondent. - 20 Turning to the remaining six properties, the Applicant according to the affidavit in rejoinder under paragraph 11 stated that properties described as P117004724, P117004725, P117004726, P118001690, P118001691 and P118001692 all located formerly on Plot 28 Nakivubo Place Road belong to the Respondent who entered into a Private-Public Partnership 25 arrangement with the Government for the construction and redevelopment of Nakivubo War Memorial Stadium and subsequently acquired leases registered in its name. Copies of the search certificate for the leases for Plot 18 Kisenyi Lane, Plot 10 Kisenyi Lane and Plot 16 Kisenyi Lane registered in the name of the Respondent were attached. - 30 I have carefully examined the search certificates attached to the affidavit in rejoinder of the Applicant marked as **annexures "J", "K"** and **"L".** Although the Applicant contends that all the above mentioned properties

- 5 were on Plot 28, the search certificates show the Plots as 10, 16 and 18 on Kisenyi lane. No evidence has been adduced to show that all these plots were the ones referred to in the statements of account which were sent to the Respondent as being on Plot 28 as contended by the Applicant. - Furthermore, the statements of account attached to the demand notice 10 which are all dated 18th October, 2022, indicate the Plot as 28, Kisenyi Lane. The Applicant contended that the Respondent subsequently acquired a lease. However according to the search certificate marked as **annexure "L"**, the Respondent acquired the leasehold interest in Plot 16 on 15th June, 2022. According to **annexure "K",** the Respondent was 15 registered as the owner of Plot 10 on 10th December, 2018. - The question that arises in my mind is; why were the statements of account for the property rates issued by the Applicant in the names of Government of Uganda and the Respondent? The Applicant did not adduce any evidence or provide an explanation to address this discrepancy and 20 yet as contested by the Respondent, it has a bearing on the issue of the person liable for payment of the property rates in respect of the properties in issue.

The only explanation relating to Government was that the Respondent and the Government of Uganda entered into a Private-Public Partnership 25 for the construction and redevelopment of Nakivubo War Memorial Stadium. The parties did not however expound on the terms of the partnership.

Inion, according to **annexure "J",** the Respondent was registered as the owner of Plot 18 Kisenyi Lane on 20th February, 2023 after the notice of 30 demand was issued by the Applicant for the property rates arrears. Information as to who the registered owner of that property was in October,

- 5 2022 when the demand notice and statement of accounts were issued was not divulged nor did the Applicant address that aspect. The search certificate marked as **annexure "J"** is not sufficient to justify the issuance of the demand notice to the Respondent in the absence of any other information to explain the discrepancy. - 10 In light of **Section 29 (4) of the Local Governments (Rating) Act** and given the above contradictions, inconsistencies and insufficient evidence in relation to the person liable for the outstanding property rates arising from the valuation of the commercial properties described as P117004726, P117004725, P117004724, P118001690, P118001691 and P118001692; - 15 this Court hereby declines to grant the summary warrant for recovery of property rates in respect of the aforementioned six properties.

Issue No. 2: What remedies are available to the parties?

With regard to costs, **Section 27 (2) of the Civil Procedure Act** provides that costs follow the event unless the Court, for good reason, otherwise 20 directs.

Further, in the case of *Uganda Development Bank Vs Muganga Construction Co. Ltd [1981] H. C. B 35,* **Hon. Justice Manyindo** (as he then was) held that:

- 25 *"A successful party can only be denied costs if its proved, that but for his or her conduct, the action would not have been brought. The costs will follow the event where the party succeeds in the main purpose of the suit".* - 30 In light of the above findings, it is fair in my view that each party bears its costs.

## 5 Conclusion and orders

- 1. On the whole, I hold that the application partly succeeds. - 2. The Applicant is granted a summary warrant to recover **UGX 169,920,000/= (Uganda Shillings One Hundred Sixty-Nine** 10 **Million Nine Hundred Twenty Thousand Only)** due to it in property rates from the Respondent in respect of its commercial properties described as P117014246 and P117014247 located in the Central Division. - 3. Each party shall bear its costs.

## 15

I so order.

Dated, signed and delivered electronically this **3rd** day of **May**, **2024.**

Patience T. E. Rubagumya 20 **JUDGE** 3/05/2024