Rushegyera v Bushenyi, Ishaka Towun Council (Civil Appeal 26 of 1999) [2001] UGCA 24 (5 November 2001)

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## **CIVIL APPEAL NO.26 OF 1999**

### HON. LADY JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ; CORAM: HON. LADY JUSTICE A. E. MPAGI-BAHIGEINE, JA. HON. MR. JUSTICE S. G. ENGWAU, JA.

#### RUSHEGYERA ELEAZER :::::::::::::::::::::: APPELLANT

### VERSUS

#### BUSHENYI/ISHAKA TOWN COUNCIL :::::::::::: RESPONDENT

[Appeal from the judgment and orders of the High Court of Uganda at Mbarara (The Hon. Mr. Justice V. F. Musoke-Kibuka) dated the 3<sup>rd</sup> of December 1998 in the Civil Suit No.11A of 1997].

## **JUDGEMENT OF A. E. M. BAHIGEINE, JA.**

This appeal is against the judgement and orders of the High Court at Mbarara, dismissing HCCS No.11A/98, where the appellant unsuccessfully sued for, inter alia, a declaration that he was the sole owner of the land comprised in plots Nos.23 and 25 Block J. Bushenyi/Ishaka Town Council.

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The facts as found in the judgement are briefly as follows. During 1980, the appellant was allocated a piece of unsurveyed land in Bushenyi Township. It was for the purpose of erecting a temporary

lock-up shop. Around the same time one Mr. S. Mpairwe was also allocated the adjacent plot for the same purpose. Some other people were also accorded similar facilities in the same area. These temporary allocations were made pendingzoning and lease allocation by the District Land Board, which had power to do so and issue Titles, should the temporary allocatees later apply. The area covered an old market place and these allocations were solely for purposes of administration and security.

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On27.10.86, the respondent sent a memo, Exp3, to the appellant informing him that his plot had been survcyed and calling upon him to pay, within fourtecn days, a tolal ol'Shs.g0,000/: being survey fbes and the cost of markstones, al1cr which he would be required to pay Shs.40,000/: as premium. IO

On 21. I 1.86 the respondent issued a receipt, Exp4, to the appellant for Shs.160,000/: which he had paid being ',deposits" of survey fees for Plots 23 and25 Block J.

During 1987 the appellant applied for a lease over the same plots. He also prepared and submitted building plans to the respondent for approval. However, during 1996 before approval of the plans and grant of the lease, the General purpose Committee of the respondent by Minute 32196 ExP9. withdrew plot 23 and allocated 20

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it to Mr. Mpairwe. The appellant objected and filed HCCS No.l lAl98 seeking a declaration that plot No.23 belonged to him as well. He also claimed damages for breach of contract and costs.

The respondent denied having allocated the appellant plot No.23 contending that he had only given him temporary permission for <sup>a</sup> temporary structure. This story was believed by the learned trial judge who dismissed the suit. Hence this appeal.

- l0 Three grounds were advanced, which Mr. Kenneth Kakuru decided to argue togcther: - "1. 'l'hat the learned trial.iudgc crrcred irr lact and in law b1 failing to properly cvalrrate the evidencc llefore him whcn he found that the disputed land Plot Nos.23 and 25, Block J in Busheny/Ishaka Town Council, had not been allocated to the appellant or at all. - 2. The learned trial judge errered in fact in not holding that according to the evidence adduced in court the legal title to the suit land had vested in the appellant from the time 20 the controlling authority allocated the same to the appellant under minute ULC Min.t .87 (102) 7 tUJlgT. - 3. The learned trial judge errered in fact and in law in denying the appellant the remedies sought."

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Mr. Kakuru argued that the leamed trial judge found that the appellant had been allocated an unsurveyed plot for temporary occupation until plans of Town development were finalised. He submitted that the memorandum, ExP3, inviting him to pay survey fees and costs of markstones was an offer while, ExP4, the receipt acknowledging such payment was acceptance and consideration, which all constituted a valid and enforceable contract in respect of the two plots 23 and 25. Mr. Kakuru stressed that that temporary allocation had elapsed when the plots were surveyed and payment made. The respondent council had no further powers on these matters any more. I Ie however stated that the Iease ofl'er had been made by Minute tll.(l l/87(102)7 o1'11.3.87.

Ileferring to Min.32l96 ExP9, by which plot No.23 was withdrawn from the appellant, Mr. Kakuru argued that by 1996 the respondent no longer had powers to deal with land and that therefore it could not withdraw the pennission which it no longer had the power to grant. There therefore was no temporary permission but full allocation by 1996, with payment already effected. The temporary allocation was meant to last until the permanent arrangement.

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Mr. Bezira for the respondent supported the Judge's finding, pointing out that the appellant was using the terms "lease" and "allocation" interchangeably. He submitted that the plots had

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never been allocated or offered for leasing to any of the parties. He argued that there was a proper procedure for leasing which involves filling in application forms to the Controlling Authority, which would in tum allocate the lease by minutes. What the appellant and other people had was temporary permission with no documentary proof for any lease offer.

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The learned trial judge agreed with the respondent and found that there had not been any allocation as the two plots still belonged to the Controlling Authority. Mere payment of survey fees did not c-trn Q..< c6{iirh-brvnership to the appcllant but onl,v an equitable interesl. The appellant had to r'vait lor final decision clf the Controllirrg Authority. It was for the resltondent to nlake a recommendation to the Controlling Authorrty which would consider the question of lease allocation. The learned judge ruled that the appellant had no cause ofaction. He could only recover the survey fees paid.

The appellant's contention in this appeal is that the "legal title" to the two plots in question had vested in the appellant from the time 20 the Controlling Authority allocated the same to him under minute ULC Min.1.87(102) 1 1113187.'- (ground two of appeal). The root of this Title is stated to be the two documents, ExP3 and P4, which Mr. Kakuru asserts together they constitute a valid and enforceable lease.

Ex $P.3$ , reads:

"Plot owner ... Rushegyera ... Plot No. . . . . . 23 Block J. . . . $\cdot$

# Re: <u>Survey of your plots</u>

This is to inform you that your Plot was Surveyed and you are being charged a total of Shs.80,000/ $=$ (Eighty thousand only) being Survey fees and cost of Markstones.

You are given a grace period of 14 days from this 10 date to have finished payment after which you will be required to pay $40,000/$ = as Premium for those who had never paid.

Your co-operation will be very much appreciated. Yours,

Johnstone B. Kahumuza,

**For Town Clerk**

**BUSHENY TOWN COUNCIL."**

Ex P4 which Mr. Kakuru believes to be the acceptance and consideration is a mere receipt for the survey fees of 20 Shs.160,000/= which in any case was to be refunded.

It is well established that in order to constitute an enforceable lease the following must be ascertained:

(i) the parties;

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- (ii) the premises; - (iii) the commencement and duration of the term; - (iv) the rent and or other consideration to be paid.

These are the cardinal or essential terms of an enforceable lease though there might be others depending on the parlicular agreement. - See Marshall vs Berridee l9 Ch. D 233; Lace vs (lhautler (1944\ l KI] 368 at <sup>370</sup> ; IIarncr vs Pratt (1965) 2 .\l,.lt 7f16. .,\ntl Public Lantls .,\cl No.l3 ol'19(r9 Section 22.

It is not very difficult to distinguish the authorities I have cited for the essentials of a valid lease from this case before us. Apart from the fact, that ExP3 does not stipulate for the subsquent granting of a formal lease, it is silent about the rent or the mode of payment, the commencement and duration of the term and the covenants. ExP4 is a mere receipt for the survey fees paid.

The Town Clerk, Mr. Hanyurwa Arthur, DWl, explained that payment of the survey fees did not guarantee ownership of the land.

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I feel compelled to agree with the Town Clerk that the application for a lease could not be considered before the land was surveyed. Surveying the land was to assist in zoning which is a dire necessity for the reasonable anticipation of future growth and orderly development of the area. It is only after zoning and demarcation of plots that such plots could be leased out with a specific purpose in mind. Most important, there is an orderly procedure to be followed by filling in forms setting out the terms of the grant and which would be subsequently signed by both parties and sealed by the controll ing Authority.

Although Mr. Kakuru relbrrcd to Minute 24196 as the actual allocation olthe lease, I anr bound to disagree with his submission, for the Minute reads:

"The Town Clerk explained that the case had appeared in his office a few months previously. He said that in 1978 Mr. Rushegyera was allocated plots 23/25 on which to build temporary structure."

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This clearly needs no further comment. I would entirely agree with Mr. Bezira that the appellant was using the terms "lease" and "allocation" interchangeably, thus leading to this unnecessary

confusion and litigation. Minute 24196 does not have anything to do with a lease grant.

Mr. Kakuru yet refened to Min.40/96(c) as further evidence of allocation. This states:

"(c) Under Min.32196, it was resolved that the temporary allocation for plots 23/25 in Bushenyi be withdrawn and the Council recommend to the District Land Board that Mr. S. Mpairwe the present tenant be allocated plot No.23 and Mr. Rushegyera also the present tenant be allocated plot No.25 so that they build pernrarrcnt structures. "

This was merely withdrawing one plot on temporary occupation from the appellant and giving it to Mr. Mpairwe. No lease was ever considered.

Next arises Min. ULC Min.l/87(102) 7, 1113187 by which Mr. Kakuru argued that the lease form was prepared, but no Title leased. I think this is again self-explanatory. Indeed there was no lease granted. It would be bold to hold otherwise. Even if the Minute were differently worded, since it was not availed to court, the presumption is that it did not exist.

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It is not easy to understand why Mr. Kakuru would decide to construe all the above documents or Minutes in the way he did. It was incumbent upon the appellant to fumish concrete proof of the legal Title to the plots he was claiming. This he failed to do or as Mr. Bezira put it, he could not diflerentiate between a lease offer and a temporary licence. This was rather unfortunate on his part. He has only himself to blame. It is trite that any occupation or use by a grantee of land which the controlling authority has agreed to alienate shall until registration of the grant be on sufferance only and at the sole risk of such grantee - (see Rule 10 Public Land Rulcs - Statutory InslrLrnrcnt 201-l).

I havc thus no doubt that the leamed trial .judge properly appraised the evidence and reached the correct conclusiorr

I would dismiss this appeal with costs here and below.

Dated at Kampala this day of. N. N+x+.\*.b.{oor <sup>20</sup> ^-{ E. AG AHIGI'IN JTIS E F APPEAI.,

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### THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA HOLDEN AT KAMPALA

### CORAM: HON. JUSTIOCE L. E. M MUKASA-KIKONYOGO,DCJ. HON. JUSTICE A. E. MPAGI-BAHIGEINE, JA. HON. JUSTICE S. G. ENGWAU, JA.

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#### CIVIL APPEAL NO. 26 OF 1999

#### **BETWEEN**

#### $RUSHEGYERA ELEAZER =$ $==APPELLANT$ $AND$ BUSHENYI/ISHAKA TOWN COUNCIL ===== RESPONDENT

(Appeal from the judgment and orders of the High Court at Mbarara (Musoke-Kibuka J.) dated 3.12.98 in Civil Suit No. 11 A of 1999).

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### JUDGMENT OF S. G. ENGWAU, JA.

*I had the benefit of reading in draft the judgment of Mpagi-Bahigeine,* $JA$ and $I$ agree with her reasons and conclusion that this appeal must be dismissed. I have nothing more useful to add.

Dated at Kampala this. 5th day of November 2001.

Dance S. G. ENGWAU JUSTICE OF APPEAL.

### THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMAPALA

CORAM:

HON. LADY JUSTICE L. E. M. MUKASA-KIKONYOGO, HON. LADY JUSTICE A. E. N. MPAGI-BAHIGEINE, JA. HON. MR. JUSTICE S. G. ENGWAU, JA.

### CIVIL APPEAL NO. 26 OF 1999

### <table> RUSHEGYERA ELEASER APPELLANT **VERSUS**

# BUSHENYTI/ISHAKA TOWN COUNCIL............. RESPONDENT

(Appeal from the judgment and orders of the High Court of Uganda at Mbarara(The Hon. JMr. Justice V. F. Musoke-Kibuka) dated the 3rd of December 1998 in the Civil Suit No.11A of 1997)

## JUDGMENT OF MUKASA-KIKONYOGO, DCJ

I had the benefit of reading in draft the judgment prepared by Mpagi-Bahigeine JA and I agree with her that this appeal must fail. I have no useful comment to add.

Since Engwau JA holds a similar view the appellant's appeal is dismissed with costs in this Court and the High Court. November, Dated at Kampala this $\mathcal{S}$ . Day of October, 2001

KIKONYGO L. E. M. MUKAS DEPUTY CHIEF JUSTICE