Kasande v The Administrator General & Another (Civil Suit 965 of 1990) [1992] UGHC 55 (16 March 1992)

Full Case Text

THE REPUBLIC 0? UCAMDA

Ill J HSHIGH J^ObltT \_ C\/ JGANDA AT KAMPALA

## CIVIL SUIT jiC, .965:<X^;H99P

MARION KASiNDS PLAINTIFF

## VERSUS

1. THE ADMINISTRATOR GENERAL)

2. JAMIS NGOBI 4/a. Associated :::::::::::::::: DEFENDANTJ> Central Auctioneers-)

BEFORE: The Honourable Mrs- / *v»* Justic e 11\* Kireju.

JUDGE M S N T.

The plaintiff Marion Kasande, a tenant on Plot 76 Mityana Road, brought this suit against the ,1st defendant, the Administrator General, the landlord and against the 2nd defendant James Ngobi, a bailiff trading as Associated Central Auctioneers. The action is brought jointly and seyerally against the defendants. The plaintiff1 claim is that she was.unlawfully evicted by the defendants and she. suffered damages as a result and brings this action; tq redress herself•

Mr. John Matovu appeared for the,plaintiff, Mr. Madama for the Administrator General and Mr. Ngobi appeared in person on behalf of his firmc

The background to this suit is that the plaintiff was a tenant on Plot ?6 Mityana R'oad., in Mityana town. The premises were being administered by the Administrator General by virtue of the letters of Administration granted to hin in respect of the late Samuel Kisiriza's estate. . The plaintiff alleged that on JO/3/9O» the second defendant on the instructions of the- firr;t defendant unlawfully and without legal authority broke into the plaintiff's, shop and residence on \*ne said plot and -unlawfully, evicted her therefrom

and locked her out. The plaintiff further alleges that the second defendant converted and carried away all her shop goods as well as personal household properties and cash Shs. 4,380,400/-. The plaintiff's claim is for recovery of the properties which were not returned to her plus cash, demages for loss of business, declaration that she is still the lawful tenant on Plot 76 Mityana Road, general damages for illegal eviction, conversion and non use of his property, exemplary damages and costs of the puit.

11 In their written statements of defence the defendants pleaded that the eviction was legal and that all the properties of the plaintiff which were taken from the promises were returned to her, and therefore prayed for the dismissal of the suit with costs.

At the hearing of the suit the following issues were framed; Mether the plaintiff was in arrears of rent and if so how much? $(1)$ $(2)$ Whether the defendants were justified in evicting the plaintiff

- and levying distress on her property. - $(3)$ Whether the defendants returned to the plaintiff all her property which had been seized. - (4) Whether the plaintiff suffered any damages. - (5) Whether the plaintiff is entitled to the remedies prayed for in the plaint.

Marion Kasande, the plaintiff was the sole witness in support of her case. She testified that she was a shopkeeper and lived in Mityana on Plot 104 Kampala Mityana Road, she was renting the premises. She started renting the premises in dispute in 1979 starting with the residence and in 1981 she started renting the shop. From 1981-87 she was paying ront to Balam Semajuali, and some receipts were exhibited as Exh. F.?, the rest of the receipts for this period were lost during the eviction. Balam Pemajuali was a tenant in common with Samuel Kisiriza and they were also brothers. Balam Semajwali looked after the interests of Kiejviza in the promises until hais own death

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in when the tonancs got a loiter iron the Administrator General '•e.ted. 11/2/88 instructing them to pay r nt to hii> The letter was exhibited as Exh. P.2 By letter Zxh. P.3, the Administrator General confirmed all her payments after looking nt the receipt and told her to continue paying rent to Jis office until a valuer was sent to determine the rent. By a letter dr\* tod 17/5/88 Exh. P.4 she was asked to pay °hs.5'-- ;000/-- per cinnum. he receipts in support of payment of rent to the Administrator General for 1988 and 1989 were exhibited as p.5 and 1\6 respectively, s'.e paid ^hs.60,000/- for each year. After she had paid the .vent, the estate was handed back to James Kasasa a son of Samuel Kisiriza. Letters dated 3/5/89 and 22/8/89 were written by the Administrator General to the District I'ityana Executive Secretary, / informing him that James Kasasa «as the Administrator of the estate.

After Kasasa had taken over the administration of the estate he sued all the tenants in Mityann Civil Suit Ko.21/89 where he claimed from each tenant ^hs.20,000/- for the second quarter of 1989^ This , money had already been paid to the Administrator Gene .al. At the end of the case the letters of Administration which had'been given to Kasasa were revoked. A letter dated 12/2/90, Exh. P.8 was sent from the Administrator General to the tenants informing them to pay all rent arrears and vacate the premises by 28/2/1990\* ^hat the Administrator General wanted bo handover the property to the beneficiariesv The plaintiff did not understand why she was being asked to vacate the premises after shfr hid paid rent, when she reported / to the Administrator General th it more money being demanded from her, she was told that things would be ^Looked into soon. That after a period of one month, a court broker waU sent to cone and remove things from her-.house.

When the court bailiff first come oxi 21/3/90 to evict the tenants-^ they all to. tho Executive c ofti-o-e- vJaore she

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whicited we alcoiets where she had been paying rent. The rount broker did not sende it. An ant he was demanding from the tenants are he did not give them notice to vacate. The letter from the Administrator General dated 19/3/90, Exh. F.9 did not state the arrears to be paid. After the meeting with the Executive Secretary the tenants were told to go back and work. But that same day the court-broker throw aut the other two tenants, the plaintiff had not opened that day. The plaintiff went to O. C. Police and reported what was take a place and the O. C. wrote a note to the Court-broker requesting him to return the properties to the tenants but the court-backer did not comply with the request. The following day the court-broker came and tried to force her to put out her properties, she refused, locked up and went to report to the Police. By the time she came back she found the properties had been taken out and premises locked up. The O. C. police told the court-broker to return the properties in as she had no fault. But some of the properties were damaged and some lost in the process. She tendered in ${}^{E}xh \cdot P \cdot 12$ a list of the properties which were in the premises on 25/3/90. She reported the lost property to police. On that day she lost 4 million shillings which was in a passing, 2 pairs of jeans, 2 T-ghirts, a pair of canvas shoes, 3 jerricans of water i.e. poured out, 1 jerrican of paraffin also poured out. The properties listed in the plaint is what was taken away by the defendants. After a period of one wook, the court-broker came back to the premises and tried to evict her again, she locked up the premises and went to O. C. police Mityana but found that he was not there and she decided to go to Kampala and contacted her lawyers Kateeba and Co. Advocates, who wrote to the Administrator General informing him that she was not in arrears of rent. The lawyers also wrote to the court-broker Eth. P.13.

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When she went back to Mityana she found the premises locked up the neighbours told her that the court-broker had come with a policeman and packed the properties on a vehicle and take them away. After two days there was an announcement on the radio inviting her to collect he property from the Administrator General's stores. When the court-broker came to evict her for the second time he did not tell how much money she was to pay. Then she went to collect the property from the Administrator General's office, a list of the goods was made, the storekeepe: signed, the driver and officer from IGG's office also signed including the plaintiff. The list of properties was exhibited as Exh. P.14. The list which was compiled by the court broker when handing the properties to the storekeeper was Exhibited as Exh. P.15 She claimed that not all the properties which were taken were returned to her and that Exh. P.14 and P.15 did not tarry. She tendered in Exh. P.16 showing the properties which were not returned to her. That before the property was returned to her she did not pay any money as arrears of rent, and she did not pay the court-broker. Mr. Katarikawe had said that they had realised their mistake and would pay for transporting the property back to Mityana. Transport was not paid for but Mr. Tibaruha of Administrator General's office asked her to make a claim and she was claiming Shs.50,000/-Although she claimed the transport meney and refund of the missing property nothing was done about it by the Administrator General. She had reported the matter to the Inspector General of Government (IGG) that is why there was a representative from his office when she was

taking the property.

She further testified that the premises comprised of a shop in-front and she had house /? property in the two backrooms. She was a tailor for schools and had a retail shop too. The business was registered in the names of the Akiki and Family Shop. The cortificate of registration and the particulars of the company were tendered as Exh. P.10. $---16$

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The trading licence she had received before the day of eviction was tendered in as Exh. P.11 That since 21/3/90 she has not been working because of the eviction. She testified that she had received a loan from Uganda Commercial Bank Mityane of "hs.700,000/which she used to buy stock. That she had not been able to a pay back this money, and U. C. B is now demanding the money as per Exh. P.17. Defore she got a lorn she had received tenders for unforms from (3) schools and Action Aid Mityana Project. The tenders were exhibited as Exh. P.18. She did not outlafy the tenders for the uniforms. She testified that she had 5 sewing machines, she used to teach some girls tailoring and she was earning about Shs.50.000/per day from the business, i.e. tailoring and ratail shon. She prayed for the remedies narrated in the plaint.

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When cross-examined she testfied that she did not move court to revoke the letters of administration of James Kasasa D1W.2 That the letters of administration were revoked in another suit and not the one where Kasasa had sued the tenants for rent. She further testified that from 1989 she recognised Nabbajja one of the widows as the landlerd because Kasasa's letters of administration had been the Administrator General had not informed her that he had resumed the revoked and the Administration of the estate. She got the loan from UCB Mityana in April 1988 for the uniforms. The loan was for one year and it was extended by the Manager after her busband had died. She stopped paying the loan in June 1990. She paid Shs 25.000 income tax. She banked her money in UCB. //The 1st defendant called 3 witnesses in support of his defence.

D101, David Babalanda testified that he is employed by the Ministry of Justice as an office superitendant, in the Admin Strator General's "epartment. That he was responsible for estates of the deceased persons. He had seen the plaintiff in their offices, Mr. Katalikawe told him that they were some tenants in Mityana

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who had failed to pay their a. : : -.ni they were going to be evicted. 'The Administrator General had got letters of administration dated 17/1/90 in Administration Co.use No.649/89 to administer ^amuel Kisiriza's estate.

The plaintiff was evicted and her property was brought on 3/4/90 to the Administrator GeneralTs office by Mr. Ngobi. The following day an lavatory of the properties was made, the list was tendered in as Exh«Dl.1. On l/h.'-JO ho got instructions from Mr. Katarikawe to hand back the plaintiff1*s* property. Her property was handed back to her and it was witnessed by Gafa and Mr. Katarikawe was also present. The property handed over was as shown in annexture 1 to the defence, All things were handed over but some she refused to take saying they did not belong to. . her and J compacts were missing. Shs.13,345/- was also handed back to the plaintiff by DTJI's assistant.

He further testified in cross-examination that the Administrator General had taken over the administration of the estate of Kisiriza in 1979\* That he did not know anything about the estate apart from the properties he received. When he was returning the property he used the list he had prepared on 4/4/90 to cross-check. He did not cross chock his own list and that of the court-broker, it is possible there could have been some differences. His list of 4/4/90 tarried 'with the- one he made with the plaintiff when she was taking her property except for the things she- refused to take that they were not hers and the 3 compacts. He testfied that the store where the properties had been kept is a large one and the 3 compacts could still bo there. He said that he was net solely responsible for looking after the store, that any other officer could be instructed by the Administrator General, to handover the property.

D-l'.'.'.a testified that he was Janieu Ifasasa, aged 27 years, stayed in Mityana. -nd was a son of lata dr.muel Kisiriza. After his father's death in 1977? his uncle Balaia Soaajv.11 took care of Kisiriza's estate, he r/as supposed to collect r^nt from the premises in Mity.ana which were jointly owned by Dj2's late father and Balam Semajwali. D-]'J2:s mother took the matters to the Administrator General after bo in/-: disatisfied with the manner in which Samajwali was administering the estate of Kiciri^a. The building was being rented by Marion Ka^ande Iloji Raw-si r.nd Azaria hukasa. The tenants refused to nay rort to the Admaristrat^x General and said that they recognised °umajwali. When his uncle died, in "I987, the tenants took money to Mr. Kaala who was his uncle's lawyer. In 1982 he applied, foi letters of administration in respect of his father's estate, they were granted by Mityana Court. He filed a suit ..against the tenants demanding rert, but during the hearing of the case Mr. Kaala challanged the letters of administration, on the ground that they were issued to D1'»72 when he was a minor and they were •• accordingly revoked. The Administrator . General applied for letters of administration and they were .given to kirn# During 1989 the . tenants paid rent to the Administrator General. Mr. Azaria Mukasa Haji Kav/wsa accepted to bo evicted and that there are n^v tenants in the building who pay between 200,000/- and °hs. 100,000/- per year per t..nant. That the plaintiff was not a good tenant because she was paying very little money.

He further testified that when the plaintiff was being evicted, he was around and also his brother Apollo Damba, a policeman from Mityana Police Station, R. C. I and the court-broker. Mr. Ng obi made a list of the property and about ^hs.10,000/- was also found in a small bag. his father had 3 wives, and 9 children. The Administrator General collected rent from the 3 tenants from 1979 to 1981<

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From 1982 to 19^7, Semajwali was collecting rent. ^hat he was the one v/ho told the\* Administrator General that ho had not received rent from the tenants for 1989\* The Administrator General then wrote to the tenants telling them that he was going to handover the property to the beneficiaries. In 1989 he told the plaintiff that she was supposed to pay Shs.60"000/- ^ont hvt t,?..?.\* by the time she was evicted in 1990 she had i.ot xaid this amount,. That he had not checked I with the Administrator General to find out whether the plaintiff had paid rent or not before filing the suit against the tenants. He further testified that by the time the plaintiff was evicted he did not know how much she owed his father's estate, The court-broker did not tell the District Executive Secretary how much money Kasade had failed to pay. That the purpose- of the eviction was not 'because the plaintiff owned raoney to the Administrator General but because he was going to distribute the property to the beneficiaries. On re-examination he testified that there was money owing to the estate about J months arrears.

DqVJJ, Apollo Damba, testified that he was, 30 years, stays at Mengo and works in Kikubo as ahusinessman.- His father was Samuel Kisiriza and he died in 1977\* His father .died living a house on Plcc 76 Mityana Town, a Plot at Butebi and a car. His uncle , Semajwali v?uo was supposed to look after Kisiriza1 s family, failed to do so and the family appealed to the Administrator General. The Administrator General separated the partnership i.e Plot *?6* Mityana Town, he was responsible for the following tenants, Haji Kanesi, Mr Mubiru (Rasande) and Azaria Mukasa. There was only one tenant on his father's side named Mazinga Musoke. In 1979 -

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- 9 - the Administrator General took effective control of the estate. But in 1981 the tenants refused to pay the new rent and to sign a lease agreement. They wanted to pay Semujwali. As a result of the pressure put on the plaintiff a° per Exh. D^.2 she started paying money to the Administrator General but it was l\*ss than she was supposed to pay.

In 19f9 as a family they docidvd to go to the Administrator General and asked him to give them their property as they were mature. The Administrator General then wrote to the tenants to that . effect as pc-r Exh. Di\*3 or Annex TE' to the defence. After the letter the tenants refused to get out and a court-broker was instructed to get thorn out. The other two tenants were successfully evicted but the plaintiff resisted. When her property were being taken out of the premises, the DES stopped the court-broker. There was some money about Shs.10,000/- found in the premises. The court-broker went a second .time when he did not find the plaintiff the property was all loaded on a vehicle after being listed and taken to the Administrator General's office, later ho was told that the plaintiff had taken her property.

On cross-examination he testified that after his father's death chare was some disagreement am-ng the widows. One of the widows .filly Mabajja did not want the money to be paid to the Administrator General. The plaintiff was paying rent to ^dmajwali from 1979 to 1981. From 1977-19o9 the Administrator General did not have letters of administration to the estate of his father. From 1977 to 1981 no one h letters of administration to the estate\* That ^emajwali was right in cell acting rent from 1977-1931 as a co-owner of the building. That for the period of 1932-90 there was no rent owing from the

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plaintiff. The Administrator General wanted to evict the tenants so that he could distribute the property to the benefieries.

The second defendant called 3 witnesses.

The first one was D2W.1 Paulo Mbisi, employed as a Co-operative Assistant and resides in Mityana. He is RC. I Chairman, Mityana $\texttt{D:W3, the plaintiff and Mr. Ngobi D1W2}$ He testified that he know D1W2 Manted the plaintiff to Main Road. pay him rent for the premises an RC, meeting was called to resolve the matter but the plaintiff did not show up. He witnessed the eviction of the plaintiff together with a policeman. That 3 separate lists were made of the property as it was being taken out, his own list got lost but that he signed on the court-broker's list. There was little money found between Shs.15,000/- 10,000/-. All the property was locked in one room and was removed later. He was told that the reason why the plaintiff was being evicted was because she had refused to pay rent. He was not present when the property was being loaded.

D2W2, Kure Luka, testified that he was a police officer No.18784, a detective constable. While on duty in Mityana Police Station he was instructed by his officer in charge on 30/3/90 to go with the 2nd defendant and evict the plaintiff because she had refused to leave the house. That they went to the plaintiff's house around 9.00 a.m. in the morning, he was accompanied by RC. I chairman. The plaintiff' was shown the eviction letter which she refused to read and just went away. The court-broker listed everything which was in the shop about Sbs. 16,000 - 10,000 was found in the shop. He witnessed the inventory i.e. Exh. D21. The goods were locked up in one room and he guarded it for 3 days until the court broker returned from Kampala.

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When cross-examined ho .testified that the order to evict the plaintiff had come from court, although he did not remember who wrote it. That when the goods were being loaded on the vehicle there w:s no recording done. He did not accompany the vehicle to Kampala.

D£W»3y James. Ngobi testified that he worked with M/S Associated Central Auctioneers as a jourt bailiff. That he was instrudted•by the Administrator Gexieral's Office in 1990 to go and evict 3 tenants at Mityann- namely Haji Kawesa, Azaria Mukasa and Marion Kasande for failure to pay rent. On 21/3/90 he, went to Mityana and went to the DES's office with Apollo Damba and he gave him the letters. The DES'scalled the 3 tenants and told them that they were to be evicted. The other two tenants removed their property but the plaintiff refused. On 22/3/90 the plaintiff's things were removed from the premises but he was ordered to return them by the O. C. police who had been instructed by the DES. Ho thereafter went to Kampala and reported to the Administrator General who in turn wrote to the DES instructing him not to interfere with-the eviction. On 30/3/90 he went back to the promises with R. C. official and the. police. He took inventory of the property and as the plaintiff refused to take her property it was locked in one room. And he went away with 3 heads of sewing machines for arrears of rent. After reporting to the Administrator General ho gave D^V/.p transport to bring the property to Kampala. • The loading was witnessed by police and RCs and the property was ' taken to the Administrator General's office on 3/^/9O«-

The letter of'instruction from the Administrator General to the 2nd defendant was exhibited as Exh. D2.2. The notice to the tenants from the 2nd defendant was exhibited as Exh. D^^\*

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On being cross—examined he testified that he was to demand .rent from the plaintiff of Shs.20,000/- but he did not know for what period she was in default. That the plaintiff was around when the inventory of her property .was being taken although she refused to sign« The throe heads of the sowing machines were handed to D1W.1 and they appeared on rhe inventory because it was made before they were taken,- H-e confirmed .t even if the plaintiff had paid the arrears oi rent, he would still have evicted her. He did not cross-check the two lists of inventory, to sec whether they were the same, namely the one he made, at Mityana and the one made by the DqW.1.

At the close of the defence case both counsels and the 2nd defendant addressed me on the issues that were framed. I shall be dealing with their submissions on each issue in the course of my judgement.

I shall now turn to the first issue which was, whether the plaintiff was in arrears of rent and if so how much. However, before I consider the above issue it is impdrtart to first ascertain what kind of tenancy agreement eatiste'd between the parties. From the evidence it is clear that there was no written tenancy agreement. Although the parties 1.ad &lt; intended to'enter into a formal tenancy agreement as evidenced bj Exh. P. J, a letter from the Administrator General to all '■erants datvd 25/2/1988, nothing was ever finalised.

Another letter -from the Administrator General dated 17/5/1988 3xh. P.4 to all tenants directed the plaintiff to pay Shs.5^000 rent per year. The letter went on to say;-

> '' You may arrange to pay for at least six months in advance from January, 1988, so that tenancy agreement may be secured.

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Hoping to hear from you within a fort night'otherwise the house may be rented to other people"

The plaintiff exhibited receipts Exh. P.5 and P.6 on which she paid rent to tno Administrator General. The 1989 receipts show that the plaintiff on 20/1/89 ' - paid to the Administrator General rent for Janu'r; ..une for th- estate of Samuel Kisiriza amounting to Shs. JO,0G0/~ again on 11/5/1989 the plaintiff paid a further sum of 3hs. JO,OuO/— for July to December 19o9» It would therefore appear that the arrangement for this tenancy was, for the plaintiff to pay r:nt of Shs.5000/- per month, six months in advance. In the absence of any other evidence concerning this tenancy we shall assume the foregoing to bo the terms of this tenantry. Mr. Matovu in answer to the first issue submitted that the plaintiff was a good tenant, that she used to pay her rent promptly since she became a tenant on the premises in 1979- That from 1979 - 87 the plaintiff paid rent to Balam Semajwali who used to collect rent even before the death of Samuel Kisiriza. And that from 1988-89} the plaintiff on the instructions of the Administrator General as by his letter dated 25/2/88 Exh. P.3» started paying rent to the Administrator General. These payments ■•-re confirmed by Exh. P.5 8c P.6 Counsel invited court to ignore the ..a bmi .<ion by the defendants that the plaintiff was in arrears of rent for 1990 as it was not backed up by evidence. That the defence witnesses lid not know how much money was owing to the estate and for what period. .-e further contended that the Administrator General himself appeared not to know the arrears of rent ao he never stated the amount in his letter ci instructions to the court broker. That testified that at the time the plaintiff was evicted slw did not owe any money

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to his father's estate that the purpose for the eviction was to distribute the property to the beneficiaries. He further submitted that the 2nd defendant's testimony that the plaintiff owed Shs.20,000/ to the estate should not be believed by court as it must have just been an a± ^er thought, in view of the other witnesses who did not know how much rent was. in arrears. He alsc. suumilted that the fact that no money was pnrd by rtc.'utiff before the property was released go to show that the plaintiff did not owe any money as the expenses of the distress are supposed to bo paid by the defaulter. He also contended that Shs.20,000/- said to be the arrears does not make sence the plaintiff was paying Shs.5000/- per month, and this money would only cover January to April and the plaintiff was evicted in March. He concluded this issue by stating that the plaintiff did not owe any money to the estate at the time she was evicted. Mr. Madama, counsel for the defendant submitted on the first issue, that the defence had established, that there was no formal tenancy agreement and that by Exh. P.o th&' plaintiff had proved that she paid her rent for the second half of 1989 in May 1989 ie. in advance. That the letter from the Administrator General which gave all the tenants notice to vacate the promises by 28/2/90 also requested them to pay arrears of rent-. That it was not .necessary to state how much rent was owing and for what period, as the plaintiff had already been paying rent an i 6 months in advance according to the evidence.

As I have already stated above, I have gathered from the facts evidence adduced at the hearing of this suit, that there was a yearly tenancy be'tween the plaintiff and the defendant in which the plaintiff was to pay Shs.5^1000/- per year for the premises. And this amount -;as to be paid 6 months in advance. However it appears

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that this rent was adjusted to Shs.60,000/- per annum as the receipt for 1929 reflect this figure. The plaintiff did not adduce any evidence •to show that she had paid her rent for 1990. Although according to Exh. P.13, the plaintiff's lawyers claimc-d that she had paid rent for trie v h .j. 0 of 1990- According to existing arrangement-,, the plaintiff should have paid Shs.3^,00?/- at thv bogiring of January, 1990 for th- first uujli ' C cl.c joar. Eur the time the Administrator General issued r.^tic..- to the tenants, dated 1\*2/2/1990, Exh. P.8 to vacate the premises, the plaintiff was in arrears of rent, After the recipt of the notice th«.- plaintiff did not pay the arrears, as she was going to be evicted at the end of February she should have paid rent for January and February - fact that the notice did not include the arrears defendant was demanding from the plaintiff is not crucial t'• because the plaintiff having been in the premises for more than two years under the management of t 0 first defendant she should have ' consulted the defendant about the- amount or paid the amount she was paying previously. It is difficult 'to imagine that the plaintiff .• expected to stay in the. premises without paying rent. I agree with counsel fo- the plaintiff's submission that the 2nd defendant's testimony that shilling 20,000/- was owing as arrears of rent to the estate, was just an after thought, and I shall disregard it as it does not t :\*rry with the rest of the evidence. Tho fact that DIW2 Kasasa had instituted a c^se against the tenants, claiming arrears of rent for part of 1989, could not have affected the plaintiff or confused her in anyway about to who she should pay rent as she testified that she never recognised him as a landlord. The fact that the Administrator General after he had laid distress on the plaintiff's sewing machines, did not go ahead to sell them, does not take away

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the fact that there were arrears of rent owing from the plaintiff. I therefore find that at the time the plaintiff was evicted on 30/3/90. she was in arrears of rent for the months of January February and March 1990 and this makes a total of Shs. 15,000/- The onus of proving that the plaintiff was not in arrears of rent was upon her and from the evidence she has failed discharge this duty.

On the second issue whether eviction and levying of distress were justified or lawful, counsel for the 1st defendant submitted that covenants to be implied once there is no tenancy agreement are laid out in S.102(b) of Registration of Titles Act Cap 205. That the section provided that once you are in arrears of rent for a period of entitled to distress for rent. And that the plaint And that the plaint 30 days the landlord was/given notice Exh. P.8. Counsel also referred court to Halsbury Laws of England 3rd Edition page 665 para. 1389, where it is provided that where there is a provision that the landlord may determine the lease, the lease is voidable at the option of the landlord. He therefore submitted that the 2nd defendant had exercised his right under RTA.

Counsel further submitted that the plaintiff had denied the title of James Kasasa who had been given letters of administration that the claimiff testified that she preferred Nabajja to James Kasasa. Uring the suit which Kasase D. Wp instituted against the tenants, the plaintiff moved court to revoke letters of administration granted to Counsel submitted that this action by the plaintiff Kasasa. amounted to assisting a total stranger to set up a title against the rights of the landlord, and that the law provides that the tenant for eits her title and is not entitled to notice. Counsel referred me to Halsbury's Laws of England 3rd Edition page 666-67 in support of this contention. He submitted that the Administrator General

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lawfully evicted the plaintiff after giving her notice and after ••h..- had denied the right of the landlord. That the acts of the Administrator General were done lawfully and the plaintiff has not proved that the nets were done illegally.,, will Jully and with gross negliguccc as required under *S\*1\** of the Administrator General's Acte That the 1st duijdan'1 has sho.-n that his actions were in the interr. t of t'n? estacj as che plairciff and other tenants were paying v^y little rent compared to the new tenants. And that the plaintiff should not be reistated as she was stubborn and unco-operative.

Mr, Matovu, counsel for the plaintiff submitted that the eviction of the plaintiif ,vas wrong as she was not in arrears of rent. Referring to S.102- of RTA, he submitted that in the instant case rent was being paid in instalments and at different times of the year and that there was no hard and first rule when it was supposed to be pa.id, that there was no established -practice th^t rent was to be paid in advance. That she was a good tenant and it was high handed to evict her under such circumstances. That if the Administrator General wanted to distribute the property it was not necessary for him to first evict the tenants as they could have continued with the lew landlord.

Un the poxnt that the plaintiff had denied the title of the landlord ie. that of Kasasa, ho submitted that certain facts were rot disclosed to court at the time of granting the letters namely that Kasasa was a minor, that the court was right in revoking the letters granted to Kasasa and that the letters were void abnitio and therjforc- the question of denying his title does not arise. He finally submitted that the court should take note of the fact

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18 - that after the distress, the plaintiff's property was returned to her without taking a cent from her.

Having found that there were arrears of rent which were not paid by the plaintiff even after she had been given notice by the defendant, I can now correctly say that the defendant was right in levying distress on the property of the plaintiff in order to recover his arrears. The fact that the plaintiff was not informed the amount of arrears by the notice did not render the distress illegal as the tenant is presumed to know what things are in acrears for her premises.

The next issue which form part of the third issue is whether the eviction was legal. Counsel for the defendant relied on S.102 of RTA where it is stated.

102 " In every lease made under the provisions

of this Act there shall be implied in the lessor and his transferees the following powers;-

$(a)$

$\cdots$

$(b)$ That in case the rent or any part thereof is in arrear for the space of thirty days, although no legal or formal demand has been made for payment thereof, or in case of any -breach or non-observance of any of the covenants, expressed in the lease or by law declared to be implied therein on the part of the lease or transferees, and such breach or non-obserance continuing for the space of thirty days, it shall be lawful for the lessor or his trasferees to re - enter upon ard take possession of the leased propery." (the underlining is mine).

Fr\*am the above section, the- landlord has got a right to terminate a tenancy if the tenant fails to pay rent for more than 30 days, even if the landlord doos not formally demand the rent from him, the landlord can exercise his right of re - entry under this section. I am of the view that in tho absence of any formal tenancy agreement between th :■ parties, the 1st defendant was right to fall b'ck on the nro/lsions of RTAp I therefore find that the eviction of the plaintiff by defer, bants lawful as it was carried out in accordance with the pvov.ia.i of tho law referred to above. Although the section does not provide for service of notice to the tenant, the 1st defendant in this case served notice on the plaintiff and throughout the hearing the plaintiff did not complain about the notice being insufficient and therefore it can be taken that the notice was reasonable.

Before I take leave of this issue I would like to comment on the issue raised by counsel for the 1st defendant about impunging the landlord's title as a ground of forefeiture. There is evidence on record, from the plaintiff herself that she did not recognise the James Kasasa as her landlord although he had letters of Administration to the estate and that she preferred someone else namely Nabbajja a widow. This denial would have boon a very serious stand to take on the part cf the plaintiff especially in view of the fact that she w<io a yea:-. -to-year tenant, the landlord could have terminated the terancy wi'.ncut even giving her notice as the tenant is not allowed to do anything that may prejudice the title of the landlord. \* However in the present case, the letters of administration granted to Kasasa, the supposed landlord were revoked by the court having fcuud that they wore granted to Kasasa when he was still a minor. In oho circumstances the plaintiff cannot be penalised for bringing to the n\tide of rhe court the fact that the letters granted by it wore defective for the said reason. And also the rent for

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for which the plaintiff was being suc-d for in the said suit she had already paid. I therefore find that the plaintiff is not guilty of having breached this condition. Counsel for the plaintiff had also invited court to take serious note of the fact that the defendant never demanded any money from the plaintiff before releasing her property,, my humble view ±s chat tne Administrator General had a right to excise distress and if before all his rights under the Ixw rix\_ decj.cbczd to umbandon it^/connot now set up an inquiry as to why he decided to ambondon his rights. He can also be asked to make good the loss occassionod under S. JJ2 of Succession Act. It was also submitted by counsel for the plaintiff that the defendant could have distribute the estate to the beneficiaries without evicting the tenants first. It is clear from the evidence that there were some misunderstandings between the plaintiff and D'qW.2 and D£VG3 who are some of the beneficiaries. The Administrator General found it necessary to evict the pl.aintiff together with other tenants from the premises before handing them over as it was obvious that D2V/2 and D2W3 would find it difficult to get on with the tenants and particul~.ry the plaintiff.

The third, issue was whether all the properties that were seized by the defendants were returned to the plaintiff. Counsel for the 1st defendant submitted that the defendants had proved that the plaintiff made it impossible for the court broker to return her property, she avoided the premises and a policeman had to be called m to guard the place. That the 2nd defendant testified that he wanted to impound only J heads of sewing machines but was forced to bring all the properties to Kampala after the plaintiff refused to take them. Counsel referred me to S.113 of the Evidence Act.

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, that the plaintiff forced the dofendant to change his position j-o. t-ke the properties to Kampala for safe custody and therefore the plaintiii is estoppel from pleading that her properties got lost he Lxu-rrud in., to the case of No.ramijlip.i 3< Jqpat vj &gt; Ashok Cotton Ltd. where the doctoi-me of equitable estoppel was interpreted. :• c'/ev.jv agree with counsel lor tiic plaintiff that the doctrine of .•■stc'/pc^ do s rot >opr~y tb?s case arc" the defendant is not exonerate 7roir« liability, The defendant having decided to move the property to Kampala. for sate custody was now under duty as a bailee to make sure that the properties were safe, even if he was a bailee for no reward•

By accepting to take custody of the- property the defendant assumed a position of trust and confidence which continues until the property is returned or lawfully accounted for. It was incumbent upon the defendant in order to relieve itself of the re-delivery of the property to establish b?z a preponderance of evidence that he actually returned all the property to'the plaintiff. It would be a serious reproach to the administration of justice ifoiir courts should adopt a rule that permitted one to acquire possession of property from ( another with intetion of returning it and subsquently retain possession \f the property or fail to account for it.

Having r. .id that if you look at the list made by the court-broker le. Exh. D2?1 and compare it with Exh. P.14 namely the list of property returned to the plaintiff you find that the two lists do not jree, I therefore find that some of the property t§ken by the defendants were not returned to the plaintiff^

The fourth issue is whether the plaintiff suffered any damage. In view of the fact that this court has found that th? distress and

. C../23

- 22 -

the eviction of the plaintiff were legal, the plaintiff cannot recover most of the damages claimed by her in the plaint. However the plaintiff is entitled to return of her property which was not returned to her or its value and general damages for non-use of that property,

It is now well established as was hold in the case of Kampala City Council vs. Kakaye 1972 EA Ml-6 that special damages must not only bo pleaded but also must be proved. In the present case the plaintiff in paragraph 6 of the plaint stated that some of her properties were returned to her but the list of properties in annexture MKI wore not returned. However, at the hearing, the plaintiff altered her position and stated that the list in the annexture MK1, also Exh,Pd2, represented the properties in the shop and other rooms as of 25/3/90\* Since the plaintiff had included everything on the list, she was still in the ambit of the law and was free to prove at the hearing those properties which, were not returned without '• r having to amend the plaint, 'v';'

The plaintiff claimed that the first time the 2nd defendant threw her things out of the premises on 22/3/90, she lost She A, million which was in a bro.n bag in the wadropo, ?nd also She.7000/- which ..as in the mattress. That the plaintiff reported this matter to the police. However at the hearing the plaintiff did not produce this report she made to the police, and she did not inform the. court how she came to get that much money especially in view of the evidence on record that she had failed to meet a '• \ deadline of repayment of a loan she had borrowed from UCB of Shs.700,000/-,D2 Wj and D-|W£ testified that they did not come across

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plaintiff's things where removed from the premises. this no-ex when the on 30/3/90 she lost Shs.350,000/- plus Shs.3000/- and also lost Sha. 29,400/- meant to buy food. That the Sha.350,000/- was meant to buy clothes for Easter. However she did not tell us how she got this money especially as she testified that since 21/3/90 she was not working.

On the Wather hand the defence witnesses DNW1, D1W2, D2W2 and Do'ts all to chified that then the plaintiff was evicted on 30/3/90. between Sha.10,000/- 16,000/- was found in the premises. Exh. D2 1, the inventory made by the courtbroker shows that Shs.13,340 plus 100/- was found in the premises. And the plaintiff admits having received blok Shs. 13,000/-, thus living a balance of Shs. 440/-.

From the loregoing I find that the plaintiff has failed to strictly prove to this court that she had the said money which got lost during the eviction. I only find that the defendants owe the plaintiff Shs. 440/- which was not returned to her.

I new turn to the other properties which were not returned to the plaintiff. I must say from the outset that I received very little assistance from both counsels in respect of this issue. First I had more than 5 lists of items to peruse. The first one was the lis of the properties which the plaintiff claim she had on 25/3/90 Exh. P.12 with More than 70 items, the second, is Exh. P.14, the list of the items which were returned to her by the Administrator General, thirdly the list of the items which got lost Exh. F. 16, the fourth is the inventory taken by the courtbroker with more than 200 items, Exh. Dp.1, the fifth one was the list compiled by the Administrator General when he received the goods from the courtbroker Ex $h \cdot P \cdot 15$ . My intention was to compare the list made by the courtbroker as it was witnesses by PC and police with that of the plaintiff's goods which were in the sh p on 25/3/90, with Exh. P. 14 and Exh. P. 16 of the missing items. This approach proved futile in the first place, some items are

$.../25$

described by different names especially the clothes, some lists state the condition of the item whether cld on new others are silent. Some it ms, take for example curs, you find them appearing several times in one list. In one list Exh. P.14, the plaintiff writes that she received assorted shoes, and in the list of missing items i.e. Exh. P.16, she lists 2 high heeled shoes as missing, one would not be sure whether it is not covered in the assorted shoes. The plaintiff in Exh. P.16, listed the missing items with the cost against each item. At the bearing no evidence was adduced to inform court how the figures development and as, especially in the light that some of the goods were second hand. The plaintiff had impressed me like an organised, business lady, especially the way she made an inventory of her property before she was evicted. She should have therefore adduced some evidence to prove her claims. It is my view that it is not enough for the plaintiff to just make a list without adducing evidence to support it the law requires that special damages be strictly proved. Joseph Lukwago vs. Attorney Gener. 1 C. S. No. 1156/88 reported in KLR /1989/ 204 refers.

From the foregoing, the court has found it difficult to ascertain what special damages should be awarded to the plaintiff, I ther fore find that special damages have not been proved except for Shs. 440/-. However, this court has already found that some of the properties were not returned, some are new, some were old but what is important is that they wore worth some money. I shall therefore sairt not rinel damages of Shs. 900,000/- although the plaintiff was claimin a total of Shs. 41:484,570/- for the missing properties. In coming it this decision I have been assisted by the recent case of J. S. N Mukasa & Anor. Vs. UganJa Electricity Board (UEB) C. S. NO.121/86 Where Justice Kityo awarded norminal demages where the plaintiffs had failed to strictly prove special damages for the funeral expenses although there was syndence that some expenses were incurred.

$.../26$

For the non-use of her procedures I will award Shs. 100,000/general damages Shs. 440/- special damages, money proved to have been taken but not ruturned to the plaintiff.

On the issue of the liability of the 2nd defendant I have found no evidence on record to $\angle$ , that he cherical out the instructions issued. to him contary to that he was authorised to do. He was all the timeacting as an agent of the Administrator General. I therefore find that the 2nd defondant is not liable.

In conclusion I find that the picintiff owed arrears of rent 'to the 1st defendant, and therefore the carrying of distress and eviction of the plaintiff were levful, consquently the plaintiff cannot get most of relives claimed in the plaint. This action only succeeds

in part as already stated. I will : award the plaintiff norminal damages of Shs.900,000/- special damages Shs.440/-, general damages of Shs. 100,000/- Cost of this suit to the defendants. Interest on the decretal amount at court rate from date of judgement until payment in full.

> $11 - 12$ M. KIREJU $AG.$ J U D G H.

> > $16/3/92$

Judgement delivered in the presence of the following, Mr. Matovu - For the plaintiff and Plaintiff present. Mr. Madama - For the 1st defendant. Mr. Ngubi, - 2nd defendant. Mr. Oburu - Court Clerk.

> ilar. M. KIREJU Ag. J U D G E

> > $16/3/92.$

$-26 -$