Namusisi and Others v Ntabazi (Civil Suit 887 of 1988) [1997] UGHC 19 (5 June 1997)

| THE KEPUBLIC OF UGANDA<br>IN THE HIGH COURT OF UGANDA AT KAMPALA | | |------------------------------------------------------------------|--| | | | | CIVIL SUIT NO. 887 OF 1988 | |

PLAINTIFFS

- 1. 2. KASIFA NAMUSISI - 3 . AMINA NABAKEMA - 4. HARRIET NAZZIWA - ABDALLA WAKAALO

FRANCIS M. K. : : : DEFENDANT NTABAZI;

## BEFORE: The Honourable Mr. Justice A. O. Ouma

## JUDGMENT

In this suit, wrongfully claiming ownership of the premises comprised in Kibuga Block 16 Plots 654,655 and 692 Ndeeba; removal of caveat lodged thereon; defendant stops in respect of the suit premises for disturbance of the plaintiffs quiet possession and/or enjoying refund of Shs. 480,000/= as money had and the claim of the plaintiffs against the defendant is for an order directing the defendant to cease from according to paragraph <sup>4</sup> of the Further Amended Plaint dated 8.4.1993, received by the defendant the months of October, <sup>1987</sup> to October, <sup>1988</sup> and mesne profits. of the suit premises; <sup>a</sup> an order that the henceforth his

in his Written The defendant claim denies that he ever Statement of Defence and Counter sold tfce suit premises to late sulaiti

Briefly, Limited entered into whereby an agreement the case Sulaiti Jagwe and Trading Company the defendant sold to and is that on 13.11.1980, the of the plaintiffs through his family company M/S Uganda deceased late Transport defendant Hardworking with the

the late Sulaiti Jagwe's Company bought the suit premises comprised in Kibuga Block 16 Plots 654 and 692. Again on 6.5.1981 the late Sulaiti Jagwe entered into an agreement with the defendant whereby the defendant agreed to sell to and the late Sulaiti Jagwe agreed to buy the suit premises comprised in Kibuga Block 16 plot 655 (see exhibits Pl and P2).

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On completion of payments of the purchase prices the defendant signed transfer forms in favour of the late sulaiti Jagwe and the suit premises were transferred in the names of the late Sulaiti Jagwe on 27.11.1980 and on 8.5.1081, respectively.

Agreed framed issues are:

- Whether the defendant sold the suit premises in $\mathbf{1}$ . question to the late husband of the plaintiffs and whether the full purchase prices were paid. - Whether the suit premises were transferred to the $2.$ deceased Sulaiti Jagwe as security for loans. - Whether the defendant lawfully lodged the caveat on $3.$ the titles. - Whether the defendant lawfully collected rent from the tenants after the transfer in 1986. 4. - Whether the plaintiffs are entitled to rent and mesne profits as claimed in the plaint. $5.$

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What remedies are available to either party.

In regard to the 1st issue Mr. Ayigihuau selior counsel for the 6. defendant argued emphatically I would think, that in this present suit the plaintiffs sued the defendant in their capacity as $% \left\vert \mathcal{L}\right\vert$ administrators of the estate of the late Sulaiti Jagwe. their claim can only be based on the estate of the late Sulaiti $% \left\vert \mathbf{r}\right\rangle$

Jagwe.

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Learned Counsel further emphasized that in this present suit $\frac{1}{2}$ there are two Agreements of sale, two transactions. They must be handled separately. They refer to different land properties. $% \left\vert \mathbf{r}\right\rangle$ Exh. P1 relied on by the plaintiffs is an Agreement of sale dated 13.11.1980. The Agreement shows that the vendor is Dr. M. M. K Ntabazi. The Agreement also shows that the purchaser is Uganda Hardworking Transport and Trading Company Limited. It shows further that the subject matter is land comprised in Kibuga Block $% \mathcal{L}_{\mathcal{A}}$ 16 Plot 692 and 654. At the end of the Agreement it shows that the late Sulaiti Jagwe signed the Agreement as Managing Director on behalf of Uganda Hardworking Transport and Trading Company Limited.

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Wherefore, 1st counsel for the defendant submitted that the defendant did not sell the suit property comprised in Kibuga Block 16 Plots 692 and 654 (exh P1) to late Sulaiti Jagwe, that it is trite law that a company with limited capacity is a juristic person different from its members. 1st counsel for the defendant relied on the famous case of Solomon vs. Solomon [1897] $\underline{\text{A. C~Vol.~22H}}$ and submitted that because of that well known principle, to interpret the transaction before Court as transaction between the defendant and the late Sulaiti. $\mathbb{L} \oplus \mathbb{L}^2$ it follows that the transfer of the suit property in the names $% \left\vert \mathbf{r}\right\rangle$ of the late Sulaiti Jagwe must have been fraudulent and that the defendant should have his property re-transferred in his names.

The transfer of the suit property in question (see Exh. P1) could $% \left( \mathcal{L}\right)$

not have been fraudulent when it was admitted by the defendant $% \left\vert \mathbf{r}\right\vert$ in his counter claim that he transferred the said suit property $% \left\vert \mathbf{r}\right\rangle$ to the late Sulaiti Jagwe, though for alleged different reason, that is to say, assessed to enable the late Jagwe to obtain, bank facilities as he had contacts but not as an out right sale. It seems to me that the learned counsel for the defendant's $\frac{1}{2}$ submission that the defendant sold the suit land in Kibuga Block 16 Plots 692 and 654, to Uganda Hardworking Company Limited, was denied by the defendant since according to the defendant in his counter claim there was no out right sale of the suit lands.

Be that as it may, fraud was not pleaded in the Written Statement. of Defence and particularised and proved as is required by law (See Order 6 rule 2 of the Civil Procedure Rules).

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Suffice it to refer to the case of R. G. Patel vs. Lalji Makanji [1957] E. A 314 where the court of Eastern Court of Appeal as it then was stated;

> fraud must be strictly proved, "Allegations of although the standard of proof may not be so heavy as require proof beyond reasonable doubt, $_{\rm\,but}$ something more than a mere balance of probabilities is required."

Certificate of Title need in respect of Vibuca Block 15 pl- 692 ASS. and plot $\frac{834}{654}$ in question were tendered in evidence without objection by defence counsels, wherefore, they were $\ensuremath{\mathsf{was}}$ admitted and marked Exh. P6. In my view, as a matter of law, in view of defendant's admission in his counter claim transferred his lands in Kibuga Block 16 plot $\frac{692}{962}$ and plot 654 to Sulaiti Jagwe instead of Uganda Hardworking Transport and

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the or his counsel are which states that. one or other of two he or she cannot retract it. cannot be altered <sup>x</sup> see the case of Scarf <sup>7</sup> App. cas to say at one time that the transaction is valid and at another Kelu Nair [1933] 35 Bom L. R 807. say it is invalid or void for the purpose of securing some further advantage (see the case of Ambu Nair vs. vs. Jardine [1882] party cannot be allowed once he has made his election, It is final and 345 at 360. A Trading Company Limited the defendant and l^a^tKeSaoStSISgSoti'estoppeJby election, where a person has made an option to choose inconsistent things, when

It was after the defendant had elected to transfer the suit land in Kibuga Block 16 plots 692 and 654 in the names of the late registered under the (Cap 205) in the names of the late instrument, 96590. By ownership. evidence of title or 27.11.1980 under the same Section 56 of the Act, the certificates are conclusive Sulaiti Jagwe that the suit lands were Registration of Titles Act Sulaiti Jagwe on 27.11.80 under instrument No. Kia 96590 and on' that is to say, No. Kia

them hereunder; its contents, .\* • <sup>I</sup> proceed I move to consider Exh. PS. **which I consider** relevant to **|he 1st** issue under' **consideration which** was also' admitted in evidence to reproduce

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"Mr. Y. S. Buyondo Advocate, P. O. Box $4530$ , KAMPALA.

18th April, 1986

Dear Sir,

$\cdots \cdots \cdots$ $Re:$

Residential Premises on Kibuga Block 16 Plots 692 and 654 situated at Ndeeba Trading Centre-Sulaiti Jagwe.

We refer to your letter dated 9th April, 1986, related to the above premises, we have to reply as follows;

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- 1. Our documentary evidence in our hands from the beginning reveals that the vendor your client did sell the properties to Mr. Sulaiti Jagwe, the bonafide purchaser for value and was registered as Mailo Proprietor of the said properties. - At the time of the transaction for the said $\overline{2}$ . properties between Mr. Francis M. K. Mbabazi and Mr. Sulaiti Jagwe, our Paul Musala Esq. asked your client "your name is famous in Ndeeba, why are you selling your premises?" Mr. F. M. K.<br>replied "Iam going to the village to settle. Iam tired of the city life." - Your client came to our office last year, and $3.$ requested our Paul Musaala Esq., whether it can be possible to alter the complete executed contract. Our Paul Musaala Esq. did not accept his request. - We may have to remind you perhaps, that the $4.$ estate of Sulaiti Jagwe is for the beneficiaries who are minors and no person has right to negotiate or change any complete executed contract or transaction without the consent and approval of the court of law.

Thanking you and with ..... with.....

rours Paul Musaala. For: Musaala and Co.

c.c. The Applicants of Management Order, Sulaiti Jagwe's Properties."

From this documentary evidence and the corroborated evidence of $% \left\vert \mathcal{A}\right\vert$ Hajati Faluma Namusoke PW2, and the evidence of Kasifa Namusis $\dot{\textbf{\emph{i}}}$ $\ensuremath{\mathrm{PW3}}$ which was not dented in cross-examination and the perusal of

$\textsc{Exh}_\textsc{S.}$ P1 and P2, I agree with the submission by counsel for plaintiffs that the 1st issue must and is hereby resolved in $% \left\vert \mathbf{r}\right\vert$ favour of the plaintiffs. Twfind that the defendant sold the suit premises in question to the late husband of the plaintiffs. particully paid purchase prices for them. cree .- lew,

The second issue was not discussed by counsel for the parties for the reason that it was redundant in view of my Ruling dated 1st April, 1997.

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Sammer, M. 1988

I proceed to consider issue 3, that is to say, whether the defendant lawfully lodged the caveat on the titles. Counsel for the plaintiffs argued that the defendant unlawfully lodged the caveat on the suit premises for the reason that section 148 of the Registrations of Titles Act prescribes a person who can lodge a caveat as a beneficiary or a person who claims interest in the land in question.

On the other hand, learned 2nd counsel for the defendant argued that Section 148 of the Registration of Titles Act, permits any person who claims to have any interest in land to lodge a caveat in the land.

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Any beneficiary or other person claiming any estate or interest in land under the operation of this Act or in any lease or mortgage under any unregistered ACL of the any top devolution in law or otherwise may lodge a caveat with the Registrar in the form in the Touge a care in the tothis Act or as near thereto as<br>Fifteenth Schedule to this Act or as near thereto as riccentum sometiment, forbidding the registration of<br>circumstances permit, forbidding the registration of any person as a transfer or proprietor affecting such any person as a state of the intended . estate or interest until after notice of the intended.

registration or dealing is given to the caveator, or unless such instrument is expressed to be subject to the claim of the caveator as is required in such caveat, or unless the caveator consents in writing thereto. Every such caveat shall state the name and addition of the person by whom or on whose behalf the same is lodged, and, except in case of caveat lodged by order or the High Court or by the Registrar as newrinafter provided, shall be signed by the caveator or by his agent. The person lodging such caveat shall, if required, support the same by an affidavit, stating the nature of the title under which the claim is made and may withdraw any such caveat. No such caveat shall be received unless some address or place in which a post office is situated is appointed $\frac{1}{2}$ therein as the place at which notices and proceedings relating to such caveat may be served."

The uncontroverted evidence on record adduced by the plaintiffs that is to say PW1 and particularly by Pw3, shows quite clearly that the defendant transferred his interest in the suit land. Having done so, in my view he ceased to have any interest in the suit land. Additionally in his own counter claim he admitted the fact that he transferred the said properties though allegedly for another purpose, to wit, as security to the late Sulaiti Jagwe to enable him to obtain facilities as he had contacts but not as out right sale, a strategy which appears to have been abandoned.

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Be that as it may, in view of my finding in issue 1, the defendant unlawfully lodged the caveat on the suit properties as he had transferred his interest in the suit properties to the $\mathbb{E}_{q^2} = q^2 + \cdots + 2j$ under which he $\mathop{\text{abased}}$ his claim to lodge the caveat on the properties in question. Accordingly this issue 3 would be resolved in favour of the plaintiffs.

$\mathbf{F}$ The next issue is issue 4. It reads, whether the defendant lawfully collected rents from the tenants after the transfers in $% \left\vert \mathcal{A}\right\vert$ It is the unchallenged evidence of PW3 when she told $\;$ $\verb|court|$ that the defendant was their family friend and that after the death of the late suisiti Jagwe PW3 requested the defendant to get tenants for them to rent the suit premises. $PW3$ further testified that the defendant did not get the tenants as his own tenants to rent the suit premises.

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However, according to the evidence of the defendant, he still feels that the suit properties are his properties. In fact in his evidence in examination in chief, he admitted that he collected rent from the suit properties after the transfers of the suit properties in the names of the late Sulaiti Jagwe.

Mr. Buyondo 2nd counsel for the defendant joined issue 4 and 5 and submitted that if their submissions on issue 1 are upheld, the suit properties would belong to the defendant, and therefore the defendant's having collected rent would not arise. As far as Iam aware, I would point out that defence submission on issue 1 concerned or was in respect of the suit property in Kibuga Block $16$ Plots 692 and 654. $37.3^\circ$

Be that as it may, I have found in issue one that the suit $% \left\vert \mathbf{r}\right\vert$ properties belonged to the late Sulaiti Jagwe after they were $% \left\vert \mathbf{r}\right\rangle$ transferred to $\hbox{h{\sc i}}{\rm m}$ after the executions of the Agreements of Sale Exhibits P1 and PW $2$ .

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I find that after the transfers the defendant had no right to $% \left\vert \mathbf{r}\right\vert$ $\verb|collect|$ rents from the suit properties which were no longer his properties.

I proceed to discuss issue 5, to wit, whether the plaintiffs are entitled to rent and mesne profits as claimed in the plaint. In his submission counsel for the plaintiffs referred to section 2 of the Civil Procedure Act where the phrase "mesne profits" is defined as "of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession". Counsel for the plaintiff also cited and relied on the case of Paul Kalule vs. Losera Namazi [1974] H. C. B 187, where it was held that wrongful possession of property by a party is the very essence for cliam for mesne profits. Mr. Kiapi for the plaintiffs proceeded to argue that the defendant transferred his interest in the suit properties to late Sulaiti Jagwe and that after his disappearance, the defendant again took possession of the suit land, until he was evicted in 1986, wherefore, the counsel submitted that, that is the very essence of the claim for mesne nergen a ten

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Mr. Buyondo 2nd counsel for the defendant combined issues 4 and $% \left( \mathcal{L}\right)$ 5 and argued that if defence submission on issue 1, is upheld, $% \left\vert \mathbf{r}\right\rangle$ the question of the defendant collecting rent would not arise. $% \left\vert \mathcal{A}\right\vert$ However, if our submission is not upheld, it would be upon the

plaintiffs to prove mesne profits. There was no evidence adduced to prove the loss. If one looks at the plaint dated 8.4.1993, mesne profits is not one of the claims made by the plaintiffs.

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On the evidence on record, I am satisfied that the defendant transferred his interest in the suit properties. As per my finding in issue 4 above, the defendant had no legal right to collect rents for the months of October, 1987 to October 1988 at a monthly rent of Shs. 40,000/= amounting to total sum of Shs. 480,000/= which sum of money was pleaded in paragraph 7 of the further amended plaint as a claim for refund as money had and received as rent by the defendant. I resolve this issue in favour of the plaintiffs.

Finally I proceed to consider issue 6 which reads, what remedies are available to other party. Learned counsel for the plaintiffs argued that on the evidence of PW3, the plaintiffs are entitled to recover a sum of Shs. 480,000/= which the defendant wrongfully received as a rent from the Bank of Uganda and that the evidence of PW3 clearly shows that the plaintiffs have been greatly inconvenienced, when the defendant took possession of the suit properties for five years after the disappearance of the late Siles The set the site that the stronger to see who suit premises, for which reasons, learned counsel for the plaintiffs suggested a sum of Shs. 5 million would be sufficient award as general damages to the plaintiffs.

In reply $\mbox{Mr.}$ Buyondo second counsel for the defendant argued that the plaintiffs were under duty to prove that they had suffered loss which they did not show by evidence. However, if it is held that they failed to prove issue 1 in their favour, it cannot be held that they are entitled to general damages. Secondly if general damages have to be awarded, there must be evidence that the plaintiffs suffered damage upon which court can base assessment of general damages.

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The law applicable to award of general damages is that the plaintiff must be compensated, as far as money can for the loss which is not too remote, suffered by the plaintiff as a result of the defendant's wrongful act. In this present suit the defendant without any colour of right took possession of the suit property until he was evicted in 1986, after causing losses to the estate, in terms of lost rents. In the premise I would consider an award of Shs. 1,000,000/= (one million only) to the $\alpha$ plaintiffs as adequate general damages. In view of my findings I would dismiss the counter claim with costs to the plaintiffs.

In the result, judgment is entered in favour of the plaintiffs against the defendant as follows;

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- the defendant is to refund the plaintiffs Shs. the unclaimed and received as rent from the $480,000/$ as money had and received as rent from the $(a)$ month of October, 1987 to October, 1988, by the defendant in respect of the suit premises. - The defendant is to pay to the plaintiffs a sum of $\frac{1}{2}$ demands Shs. 1,000,000/= as general damages.<br>Shs. 1,000,000/= as general damages. $(b)$ - Interest on the decretal sum at court rate from the interest on the decretal summent in full nature $f$ and $f$ are the following the following terms of the following terms of the following terms of the following terms of date of this judgment till payment in full. $(c)$

The defendant is to pay the costs of this suit to the $(d)$ plaintiffs.

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- An order is hereby issued restraining the defendant $(e)$ from claiming ownership of the suit premises. - A permanent injunction is hereby issued restraining $(f)$ the defendant his servants, gents and tenants from interfering in the running and or management of the suit premises. It is so ordered.

$51611997$ Court: Judgment is read and signed<br>in the presence of coursels for the Kanties and of M. J. Icanyuka court<br>Clark. A00ma<br>Judge<br>576/1997

A. O. Ouma $J U D G E$ $15/1997$

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## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA CIVIL SUIT NO. 887 OF 1988

| | RASIFA NAMUSISI | | |------|-----------------|----------------------------------------------------------------------------------------------| | $2.$ | AMINA NABANKEMA | | | 3. | HARRIET NAZZIWA | $\mathbf{P}\mathbf{L}\mathbf{A}\mathbf{I}\mathbf{A}\mathbf{I}\mathbf{F}\mathbf{F}\mathbf{S}$ | | $4.$ | ABDALLA WAKAALO | |

versus

FRANCIS M. K. NTABAZI DEFENDANT

## DECREE

THIS SUIT COMING up for final disposal before The Honourable Mr. Justice A. O. Ouma in the presence of Mr. Paul Kiapi, counsel for the plaintiffs and Y. S. Buyondo, esq, counsel for the defendant;

IT IS HEREBY ORDERED AND DECREED as follows:

- $(i)$ The defendant shall refund to the plaintiffs the sum of Shs. $480,000/$ = (four hundred and eighty thousand) as money had and received as rent from the month of October 1987 to October 1988 by the defendant in respect of the suit premises. - (ii) The defendant shall pay the plaintiffs a sum of Shs. 1,000,000/= (one million) as general damages. - (iii) The defendant shall pay interest on the decretal sum at court rate from date of Judgment till payment in full. - (iv) The defendant shall pay the costs of the suit to the plaintiff. - The plaintiffs are granted an order restraining the defendant from claiming ownership of the suit premises. $(v)$ - (vi) The plaintiffs are granted a permanent injunction restraining the defendant, his servants, agents and tenants from interfering in the running and/or management of the suit premises.

$\ensuremath{\text{IT}}$ IS FURTHER ORDERED AND DECREED that the counterclaim be and is hereby dismissed with costs.

We approve:

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COUNSEL FOR THE PLAINTIFFS

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COUNSEL FOR THE DEFENDANT

GIVEN under my hand and the seal of the court this . S. L. day of ...................................

**REGISTRAR**