Rhoda Kalema v Departed Asians' Property Custodian Board (Civil Suit 784 of 1990) [1991] UGHC 70 (25 November 1991)

Full Case Text

## THE REPUBLIC CF

# IN THE HIGH COURT OF UC-LL1.-. A J .•

## CIVIL SUIT NO. 784 C? 199C

## RHODA KALEMA :PLAINTIFF

## V S R S US

DEPARTED ASIANS' PROPERTY CUSTODIAN BOARD ::: ::: DEFENDANT The Hon. the principal Judge Mr, Justice JtH. Ntabg oba Before:

### R U I. I N G:

In this case the plaintiff, Rhoda Kalema (Mrs.) is a tenant in Common with 9 Asians who were expelled in the 1972 Amin's expulsion of Asians. They are tenants in common in respect of the premises comprised in Leasehold Register, Volume 95*1* Folio 19j known as Plots Nos.4 and 6, Parliament Avenue in Kampala.

The plaintiff alleges in the plaint that she is the registered proprietor of one tenth of -the undivided shares of the said plots Nos.4 and 6, Parliament Avenue, Kampala (hereinafter referred to as She continues that after the expulsion in 1972, as aforesaid, cf the 9 Asian Common tenants, the defendant, the Departed Asians' property Custodian Board (hereinafter conveniently referred to as the Board), without due regard for the plaintiff's proprietory interest in the suit premises, unilaterally assumed possession, control and management of the said suit premises to her total exclusion; mismanged the suit premises that they are now in a state of abject dilapidation and that the Board particulars of negligence on the part of the Board with regard to the the suit premises) and that this is borne out by Instrument , 1 No#18'r526 dated 4th January, 1971 • or rehabilitate the premises. that the Board so lias shown no signs of intention to renovate

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They include:

'premises; (\*) failing to renovate, rehabilitate or repair the

- (b) collect rent from the renovation of refusing or failing to charge or to premises which could assist in the repair or the premises; - (c) leaving or giving the premises to unsuitable tenants who have accelerated the dilapidation of the premises; - (d) failing to caution or evacuate the tenants who are misusing i or contributing to the dilapidation of the suit premises.

According to the plaintiff she has-suffered great loss througn the negligence of the Board. For instance, according to paragraph 7 of the plaint, the plaintiff contends that due to the board's Shs (the plaintiff) further charges for a period ten the t -.o Lease Agreement of loan from a bank for trie purposes of renovating, repairing, and rehabilitating the premises? failing to grant her the-proprietary rights by particularly failing to pay annual rent the defendant (the Board) with breach of a covenant in an 18th agreement November 195?/in exceeding years, and in constructing extensions to the premises without approval of the City Council as! provided by 1955 aforesaid. unlawful possession of the suit premises, and the Board's refusal to grant the plaintiff possession or management of the premises, she cox:Id not, as she ought, obtain financial assistance by way of a

There are several similar other allegations which are not immediately relevant to this But suffice it to say that the ruling. plaintiff's prayer included:- '

(a) declaration that she is the rightful person to manage the suit premises; the court's

- (b) that the court orders the Board to hand over to the plaintiff possession of the suit promises; - (c) costs of the suit, and - (d) any other relief deemed fit by the court.

In its Written Statement of Defence (V/SD) the Board contends that it is empowered to manage the suit premises by the Expropriated Properties Act, 1982 and denies therefore that by managing the premises, it was acting unlawfully*r* The Board further c ent ends that if at all there was no consent of the plaintiff to enable it t manage the premises, such consent had been implied in the plaintiff's acceptance of the monthly collections tenth share) of rent and that therefore She (the plaintiff) is estopped from alleging tho lack of her consent. The Board further denies the alleged negligence on its part and that the premises are dilapidated. The WSD states that tho failure ci the plaintiff tc suit premises, not because the defendant was mismanaging the premises. of her share (I imagine a obtain a bank loan was due to the fact that she owns only 1/10 of the

It would appear from the WSD that the major contention of the Board and the reason for having declined to surrender management of the premises to the plaintiff was its argument that she only owned l/'lOth of the interest in the suit premises as a tenant in common and that the Board itself held 9/lOth of the premises. It was the contention of the Board that under the Expropriated properties Act, the Board was the one entitled to the management of the premises by virtue of the majority (90%) of the interest of the 9 Asians, .as against the plaintiff's 10% interest in the premises.

I have given the above ruling is all about. in the process, it decided to The Board's letter of 2.10.90 addressed to the to the plaintiff. plaintiff by its Ag. Executive Director runs thus: background to make it clear what this Despite the defendant's contention, somewhere grant the management of the premises

"Re: Plot Nd.^ Parliament Avenue

US **fl** Attached hereto is a draft of a Management Agreement between you and the Board, authorizing you to take over management of the above property. • Please read through and give us your proposals before a final copy is drafted -

This letter was apparently responding to the plaintiff's hand-written letter dated 11.09.90 by which she informed the Board that the Deputy Minister in charge of Custodian Board had promised her the management of the premises. The terms of the management are outlined in the affidavit in reply of Edward K. Ssekandi, the Board's advocate sworn on 18.3.91 but they are also summarised in the letter of the Board ' s Ag. Executive Director dated 7.11.90, they are:

- "(1) To effect rehabilitation of the premises. - (2) To submit a quarterly account to the Board of the rents collected and to remit 80% of the net profits from the premises to the Board."

would The plaintiff would carry out the management until Government make a final decision concerning disposal of the share of the 9 departed Asian Shareholders.'

The above details provide the background by Mr. Peter action in HCCS. No.78^ of the ground that while 1990 discontinued on to the present Chamber Application brought on behalf of the plaintiff Mulira, Advocate, in which she seeks her the action was still pending,

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the plaintiff was granted by the defendant/respondent management of the premises. In other words, this was a settlement out of court.

At the hearing of the Chamber Application Mr. Mulira for the applicant requested that he and counsel for the respondent enter a consent judgment, by which I understood him to mean that they would enter a consent ruling withdrawing the suit.

Mr. Ssekandi counsel for the respondent had not objection provided costs of the withdrawal cf the suit were to be awarded to Mr. Ssekandi\*s contention was that his client back as 7.11.90. The Chamber Application was made on 16.2.91 while the applicant already knew that the respondent had granted her the management cf the premises which she had sought in her suit. **Mr,** Ssekandi wonders why she did not discontinue her case without the involvement of the respondent through summons to attend court. It is for the reason that the respondent\* expenses of sending its advocates to court that it asks for the costs. Additionally, Counsel for the respondent contends that even when the applicant instituted the.suit against the Board she was the respondent Board was ready to allow her to In spite of that knowledge she went ahead to file the suit against the Board thereby necessitating the Board to employ its advocate in the proceedings. pursuant to which the applicant brought the application for withdrawal of the suit envisages possible costs not to the plaintiff so withdrawing but to the- inconvenienced defendant whe is made to appear nt the proceedings. aware already that manage the premises. the respondent. had agreed to grant the applicant management as far Besides, argues Mr. Ssekandi, order 22 rule 1 (2) of the Civil Procedure Rules s Board has been put to

Mr. Mulira objects to the award of costs to the respondent. His reasons are that the applicant's hand written letter to the He says the matter started Board was written out of exasperation. in 1983 and even though at one time the respondent agreed to vest management in the applicant, the Board was not true to its word. The applicant was patient until the statutory notice of 60 days of her intention to sue on 2.5.89. It was not until June 1990 more than a year later that the applicant decided to institute the suit now Even when she received the draft letter of being withdrawn. The respondent capitulated Management it was not acceptable to her. on 7.11.90 to grant her the right to manage the premises not cut of the Board's volition. It was because summons to enter appearance The Board would not have agreed to had been served on the Board. grant the applicant management of the premises if they had not been threatened with the suit.

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I do appreciate the fact that it took the respondent quite a long time to surrender the management of the premises to the applicant. It may also be true, and I am inclined to think it is, that the surrender of the management was actuated by the suit.

However, after realising that the respondents had at last surrendered the management, I wonder why it became necessary for the applicant to adopt the most expensive and even lengthy procedure of discontinuing the suit. I think that rather than going to the length of insituting chamber summons application involving citations and affigavits in support, it would have been sufficient for the counsel for the applicant to write to the Registrar withdrawing the suit with a copy to counsel for the respondent. Applicant's Counsel could, alternatively, have notified Counsel for the respondent of her

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withdrawal of the suit, copy of the notification to the Registrar. Either of the two alternative procedures would have spared the respondent the expense in deploying its lawyer to attend I do not think it would be proper for me to engage into the whether or not costs should go to which party. It is sufficient that rather than merely withdrawing the suit and informing the parties concerned counsel for the applicant adopted a procedure that I am satisfied that the chamber application to withdraw HCCS. No.784/90 be allowed with costs to the respondent/defendant. court•**r** history of plot No.4 Parliament Avenue as a basis for deciding giving a would put the opposite party to avoidable expenses.

Order accordingly.

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J. H. Ntabgoba. Principal Judge. 25/11/91

•25/11/91;

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*r v*

Present: Mrs. Byaburakirya for **V.** Respondent present. Mr. Mulira for applicant absent. Ruling read and explained by the Asst. Registrar.

G. K. Ka^goda. Asst. Registrar. 25/11/91