Mwesigwa t/a Rest Assured Furniture Home v Kabunga Kasule (Civil Suit No. 151 of 2011) [2013] UGHC 267 (13 November 2013)

# THE REPUBLIC OF |GANDA

## IN THE HIGH CCURT OF UGA NDA AT KAMPALA

### CIVIL DIVISI )N

### **CIVIL SUIT NO. 151 OF 2011**

#### **GEDDY MWESIGWA**

# T/A Rest Assured Furniture Home :::: ::::::::::::::::::: PLAINTIFF

### **VERSUS**

### HAJATI AMINA KABUNGA KASULE :::: :::::::::::::::::::::: DEFENDANT

## BEFORE: HON. JUSTICE ST PHEN MUSOTA

### **JUDGMENT**

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Geddy Mwesigwa T/a Rest Assured Ft niture Home filed this suit through M/s Nyombi & Co. Advocates cli iming for special damages of shs 100,000,000-, Ceneral damages and interest on both special and general damages at the rate of 30% from the date of filing till payment in full. The plaintiff claimed for costs as well. The defendant, Hajat Amina Kabunga Kasule is represented by M/s Kabega & Co. Advocates.

The facts giving rise to this suit as can $\boldsymbol{t}$ : deduced from the plaint are that:-

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- (a) The defendant filed Civil Suit <sup>N</sup> ). ] 152 of 1999 against the plaintiff for alleged trespass, evic ion and mesne profits as per annexture 'A' to the plaint. - (b) **5** The plaintiff in his defence state. in CS 1152 of 1999 that he was allowed to construct a furn :ure workshop and office on the land and had been staying o <sup>i</sup> the suit land since 1974 as per annexture 'B' of the defence. - **(c)** That the said case which is still lending in court had gone a step where the defendant was di <sup>s</sup> to compensate the plaintiff for development done on the lane - (d) While the said case was pend ig in court, the defendant obtained court orders (speck certificate) at Nabweru Magistrates Court and evicted the plaintiff herein from the suit land and destroyed property ' orth shs 100.000.000- in execution of the order in June, 2005.

That the said eviction was exercised illegally and wrongfully since the furniture and other properties which were damaged were valued over shs 100.00.000 = .

The plaintiff listed particular special damages as;

<sup>1</sup> Band sow worth 1,500.000= **0**

<sup>1</sup> planer worth 1.500.000 = H)

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<sup>1</sup> lather machine worth 5.000.000 = iii)

<sup>1</sup> compressor worth 13.000.000 = iv)

**2**

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- v) <sup>1</sup> 50HP Mai: e Mill worth 12.000.000= - vi) <sup>1</sup> Huller woi th 1.500.000= - vii) <sup>1</sup> Mounted / nimal worth 15.000.000= - viii) Furniture we rth 15.000.000 = - ix) Buildings wc rth 35.000.000=

The plaintiff further <sup>&</sup>lt; ontends that he had stayed on the plot of land for over twelve (12) ye. ts, carried out developments and had agreed on the rent with the defendant.

**6**

**(° 15** In her Written Statement of Defence, the defendant Hajat Amina Kabunga Kasule denied the plaintiff's claim and averred that the plaintiff is not entitled to any relief sought from the defendant. She contends that she tried without success to collect rent from the plaintiff. That is why she instructed a firm of auctioneers and bailiffs to debt collect lent on her behalf using a certificate of Distress to recover the rent due. That upon this the plaintiff herein who had refused to vacate the premises begged to be allowed to vacate peacefully. That he indeed left the premises in the presence of the defendant's agents and local authorities. That the plaintiff and his employees personally removed all his equipment from the defendant's premises and any damages caused to his equipment was by his employees. That if there was any loss, then the plaintiff's employees are responsible. The defendant further pleads that Civil Suit No. 1152 of 1999 was for trespass arising out of the plaintiff's refusal to acknowledge the

**3**

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defendant as his land lord and not failure to pay rent since from the commencement of his occupation to the defendant's premises, the plaintiff's occupation of the premises was in the capacity of a tenant of a registered proprietor.

In the joint scheduling memorandum, two facts were agreed that:-

- 1. The plaintiff occupied the land in Block 208 Plot 899 and operated a furniture workshop. - 2. The plaintiff was evicted.

The agreed issue were three i.e;

- Whether the plaintiff's property was $(a)$ destroyed by the defendant. - $(b)$ Whether the plaintiff is entitled to compensation. - Whether the plaintiff is a bonafide occupant on the land. $(c)$

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At the hearing of the suit, each side adduced the evidence of one $15$ witness through witness statements respectively.

In his testimony PW1 Geddy Mwesigwa testified that together with his wife was given land comprised in Kyadondo Block 208 Plot 809 to carry on a timber business. The two onstructed on the land a carpentry workshop, showroom, a store $r$ aize and timber drier room, **TRUE** COPY THI ORIGINAL

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a closet, toilet and an office with the full knowledge of the defendant. That the workshop had the items listed in the special damages claim and upon the death of Hajji Kasule in 1986, the defendant asked for ground rent. That the plaintiff started paying 100,000= per year. In 1990, the defendant refused to accept any further rent and made no proposal to revise the same. That the plaintiff has never refused to legalise his tenancy with the defendant but from nowhere, he was served with summons by the defendant in Civil Suit 1152 of 1999 alleging trespass on the suit land whereas not. That while the suit was pending, the defendant filed an application for distress for rent upon which the defendant and her agents Mugisha Andree t/a Mugira auctioneers destroyed the property listed and worth 100.000.000=

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Pwl further testified that prior to the destruction of the property, they had reached a stage of settlement of the matter by getting an independent valuer hence this suit.

**C**

When cross-examined by Mr. Kyateka, PW1 said that he was partly <sup>a</sup> tenant to Hajji Kasule and partly paying Busulu. He did not remember holding any discussion on rent revision and denied reaching any consent in CS 1152 of 1999. PW1 further denied ever signing any lease agreement and/or giving any comments on the lease agreement (annex E). He however acknowledged that he was evicted in 2005 three years after the consent he did not see. PW1 does not remember paying any rent between 2002-2003 or any discussion between 2002-

**5**

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2005. That at the time of eviction he did not owe the defendant any money although he had not paid rent at the time of eviction. That during the distress when his property was destroyed, he came after a telephone call but had not removed anything at the time. PW1 further acknowledged that he did not have any receipts for any of the items he claims and stated that he did not challenge his eviction nor did he frustrate the formalisation of his tenancy.

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5.

In their defence DW1 Janat Kazibwe testified that she is well versed with the facts of this case and kept all documents relating to the same for her mother since 1986. She confirmed that the plaintiff was a $\overline{1}$ tenant of her father Hajji Mukasa Kasule and used to pay rent from 1974. That in the course of his tenancy the plaintiff forcefully erected semi-permanent structures on the land amidst protests from the late Hajji Mukasa Kasule. After the latter's death in 1986 the defendant herein inherited the property and sought to collect rent from the ι5 plaintiff. That the plaintiff who at the time was a soldier stubbornly refused to pay rent to the defendant and arrogantly intimidated the defendant disowning her as his landlord. There was an exchange of correspondences about the suit land as shown in annextures A-1, A-2 20 and A-3 between the plaintiff and the defendant's respective counsel. That upon failure to collect rent from the plaintiff the defendant was $\overline{\mathbf{A}}$ advised to file a suit to recover the rent. The defendant filed Civil Suit No. 1152 of 1999 on 4<sup>th</sup> October 1999 in the High Court seeking interalia to evict the plaintiff. After several court appearances the parties to the suit arrived at a consent on 16<sup>th</sup> December, 2002 in 25

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which it was agreed that the property be valued and a lease agreement be drawn up with the premium and ground rent assessed from the valuation. The consent order is marked Exh. D5.

**5 LO** 15 DW1 further testified that the understanding after the consent was that after valuation and execution of the lease agreement, the plaintiff would resume his tenancy as a lessee, paying rent to the defendant. Indeed the valuation was conducted and concluded on 25th June 2003 and the report was served on the parties in HCCS 1152 of 1999 (Exh. D6). Further that after the valuation the defendant's lawyers drew up a Lease Agreement (Exh. D7) in accordance with the consent order and forwarded the same to the plaintiff for signing but the plaintiff ignored the letter and never communicated to the defendant again. He also refused to sign the lease agreement or make any comments on 1 the same.\_JLhatJj\_e,cause of frustration, three years after the consent order, in 2005 the defendant filed an application in Nabweru court to v destrain for rent and <sup>a</sup> special certificate for distress was granted for <sup>a</sup> sum of shs 8.700.000= as per Exh. D8.

**A**

DW1 further testified that the bailiffs executed the order but found when the plaintiff had taken all his chattels out of the premises by the time of execution and there was nothing to destrain against. That the plaintiff was present during the execution which was attended by the local authorities as indicated in Exh. D9. That it is not true that the

plaintiff lost equipment he claims was on the premises at the time of execution and he is not entitled to any reliefs sought.

Both learned counsel were allowed to file written submissions of the -respective cases.

**5** In all civil trials the burden of proof lies on whoever alleges a set of facts to exist and the standard of proof is on a balance of probabilities.

**)**

**)**

After-a careful consideration of the evidence adduced on both-sides and thorough study of all exhibited documents I will go ahead and a determine the issues as framed by the parties starting with issue 1.

**JO** Issue 1: Whether the plaintiff's property was destroyed by the defendant.

In his submission learned counsel for the plaintiff submitted that the evidence confirms that the eviction of the plaintiff led to the loss of property worth 100.000.000= for which the defendant is liable to pay. Learned counsel for the defendant submitted to the contrary.


In his evidence, the plaintiff testified that at the time of enforcement of the special certificates of distress there were various equipment and property worth 100.000.000 = belonging to him which were destroyed by the bailiffs. However the defendant testified that on the date of eviction carried out in her presence the plaintiff had already taken his $\mathcal{S}$ chattels out of the premises. This assertion is corroborated by a report by the officials of Mayinja LCI dated 14<sup>th</sup> June 2005. Exh. D9 in which the LCI official reported that on the day of eviction, nothing was found inside the buildings and the eviction was done in the presence of the 10 plaintiff, I believed the LC report. Therefore the denial by the plaintiff that he attended the process was false. I also believed the testimony of DW1 that although she is not recorded as present on the report of the LCI she was present and witnessed what happened. This implies that nothing belonging to the plaintiff was destroyed as alleged.

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I also agree with the submission by learned counsel for the defendant $\overline{15}$ that the defendant should not be the one liable for the execution of the Distress Order. This was conducted by bailiffs who were acting on instructions of a competent court. If there was any damage to property which is not the case here, then it should not be attributed to the defendant who did not instruct nor have control over the bailiffs. 20 The defendant did not issue the order on the basis of which the plaintiff was evicted. The bailiffs acted as agents of court not the defendant. On a balance of probabilities I will answer issue 1 in the negative.


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Issue 2: Whether the plaintiff is entitled to compensation of his property.

*5* to Having resolved issue <sup>1</sup> in the negative, I am not convinced that the plaintiff is entitled to the compensation claimed. The plaintiff's claim for compensation arises qut^Lae-^llegatiori—he—made—that—he—had property on the premises which allegation has been\_\_f\_o\_un<sup>d</sup> to be false. The plaintiff has failed to prove on a balance of probabilities that the equipment claimed was at the premises at the time of eviction or that the said equipment was damaged and the defendant was responsible. During cross-examination, PW1 was unable to produce any evidence attesting to the alleged shs 100.000.000= value of the claimed property. He did not adduce evidence to prove the existence of the said property nor proof that he purchased them. He assigned value to each of the claimed property arbitrarily.

The plaintiff averred that the distress for rent was instituted while Civil suit 1152 of 1992 between the plaintiff and defendant herein was still pending. However, the evidence adduced by the defendant vide Exh. D5 and D8 showed a different set of events.

The defendant adduced evidence to prove that there was a jionsent order, Exh. D5, reached between the parties in HCCS 1152 of 1999 extracted on 16th December 2002 and signed by counsel for both parties. The said order culminated into thefvaluation of the premise^in

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question to assess the ground rent payable and drawing up a lease agreement for both parties to sign. However the defendant testified that it was the plaintiff who adamantly refused to sign the lease agreement. This assertion was not sufficiently rebutted to my satisfaction. I was convinced that it is the plaintiff herein who $\varsigma$ frustrated the defendant's attempt to collect rent or to even formalise his occupation of the defendant's premises.

He did this by neither executing nor commenting on the lease agreement in Exh. D7. Infact in cross-examination, the plaintiff. admitted that he sat on the lease agreement for over three years i without either executing it or rejecting it. The plaintiff did not challenge the consent order during those three years or reply to the defendant's letter which forwarded the agreement to him. During all the three years, the plaintiff did not pay rent/or rent arrears to the defendant yet he continued to occupy the premises. The distress for $15$ rent was after three years of the consent order.

$\overline{\phantom{a}}$ As rightly submitted by learned counsel for the defendant, the signing and extraction of the consent order in HCCS 1152 of 1999 brought and end to the proceedings in the said suit. At the time of distress for rent, there was no pending suit to give rise to a claim by the plaintiff of abuse of court process. In view of the reasons I have given, and on a balance of probabilities, the plaintiff is not entitled to any compensation or reliefs claimed.

## Issue 3: Whether the plaintiff was a bonafide occupant of the land.

*5* **ic>** IS S. 29(2) (a) of the Land Act Cap 227 defines a bonafide occupant of land as a person who occupied and utilised or developed land unchallenged by the registered owner or agent of the registered owner for 12 years or more. I agree with the submission by learned counsel for the defendant that the plaintiff does not fall within the definition of a bonafide occupant. The unchallenged evidence of DW1 is that the defendant's (DWl's) father who was the plaintiff's landlord at the time challenged the plaintiff's utilisation of the suit land when the plaintiff forcefully erected semi-permanent structures on the suit premises in breach of the agreement that he would not erect any such structures on the land. Even if he had that authority the consent order in Civil Suit 1152 of 1999 stripped him of the same. Therefore the plaintiff is not a bonafide occupant of the suit land. Issue 3 is answered in the negative.

All in all, I have found that the evidence of the defendant is more credible than that of the plaintiff. Having answered all the issues framed for my determination in the negative I will order that this suit be and is hereby dismissed with costs.

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Stephen Musota **JUDGE** 13.11.2013

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