Sawko and Another v Attorney General and Another (Civil Suit No. 289 of 2014; Civil Suit No. 410 of 2013) [2017] UGHC 123 (4 May 2017)

Full Case Text

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THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

CIVIL SUIT NO. 410 OF 2013

1. ANGELICA SAWKO

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==PLAINTIFFS 2. AJAROVA LILLY====

## VERSUS

ATTORNEY GENERAL DEFENDANT

## CIVIL SUIT NO. 289 OF 2014

KOMAYOMBI BULEGEYA PLAINTIFF **(0**

## VERSUS

ANGELICA SAWKO DEFENDANT

BEFORE: HON. MR. JUSTICE GODFREY NAMUNDI

## RULING

This is a consolidated suit. The subject matter of the two suits is property comprised in plot 1 and 3 Nakasamba Close Entebbe. The suit property used to be government property. The 1st and 2nd plaintiffs were tenants and in occupation of the suit property. The 1st plaintiff has occupied the suit property comprised in plot J51 since 1999 while the 2nd plaintiff has occupied the suit property comprised in

P 0 3 since 2007. Under a government scheme, the suit property was part of properties that were sold off to former civil servants.

. The 1 plaintiff in Civil Suit No. 410 of 2013 is challenging the allocation of the property comprised in LRV 4125 Folio 12 Plot 1 at Namusamba Entebbe to the plaintiff in Civil Suit No. 289 of 2014 by the Attorney General.

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The plaintiff in Civil Suit No. 410 of 2013 did not include the plaintiff in Civil Suit No. 289 of 2014 as a party to the suit but only sued the Attorney General.

The 2nd plaintiff in Civil Suit No. 410 of 2013 is contesting the allocation of property comprised in plot 3 Nakasamba Close Entebbe. Their claim is based on \othe fact that they are in occupation and possession of the suit property as sitting tenants and that government should have given them the first offer to purchase the suit properties. They pleaded fraud and illegality in the allocation and sale of the suit property by the government.

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In Civil Suit No. 289 of 2014, the plaintiff Komayombi Bulegeya was one of the civil '^servants who benefitted from the government scheme and bought the suit property comprised in LRV 4125 Folio 12 Plot 1 Nakasamba Close Entebbe. He is the current registered proprietor of the suit property.

He sued the defendant Angelica Sawko *(who is also the 1st plaintiff in Civil Suit No. 410 of 2013)* seeking a declaratory order that she is a trespasser on the suit ^■property, an eviction order, vacant possession, permanent injunction, mesne profits, general damages, interest and costs of the suit.

When.the matter came up for hearing, counsel for the defendant in Civil Suit No. 410 of 2013 and the plaintiff in Civil Suit No. 289 of 2014 raised a preliminary objection on a point of law. The submissions of counsel were that the suit was ICres-judicata, the matter having been decided in Miscellaneous Cause No. 78 of 2009.

Counsel for the plaintiffs on the other hand submitted that the suit is not Res-Judicata and that the Miscellaneous Cause was against a wrong party, the

Permanent Secretary Ministry of Lands, Housing and Urban **\25**Development and therefore was null and void.

I have read the copy of the Judgment in Miscellaneous Cause No. 78 of 2009 which was before this court. It was filed by among others the 1st and 2nd plaintiffs -Sunder Judicial Review challenging the decision and actions of the Permanent Secretary Ministry of Lands, Housing and Urban Development. I take note that the trial Judge considered the issue that it was improper for the applicants to sue a permanent secretary. The right party to be sued ought to have been the Government itself through its legal representative, the Attorney General. The 1st 'Oand 2nd plaintiffs in the Miscellaneous Cause were challenging the decision of the government pool houses sale committee that declared them not eligible to purchase the suit properties in question and terminated their tenancies.

The trial Judge did not find any merit in the applicants' case and the application was dismissed. The 1st and 2nd plaintiff then brought civil suit no. 410 of 2013 on ^substantially the same facts and issues as raised and resolved by this court in the Miscellaneous Cause. The issues raised by the plaintiffs in paragraphs 4 to 5 of the plaint were clearly resolved by this court in the Miscellaneous Cause and I find absolutely no reason to reproduce the same here.

The fact raised by the Plaintiffs that the suit property was not sold to sitting 5 tenants who were civil servants does not arise.

In Paragraph 5 c) of the written statement of defence, the Defendant clarified that the policy guidelines provided that the first opportunity / priority would be offered to public servants who were also the sitting tenants and if the tenants were not civil servants, the first offer was to civil servants who did not benefit \Ofrom the scheme. The Defendant contended that the properties were lawfully offered to public servants.

I have looked at Annexure A to the written statement of defence. It is reads;

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*'the public service housing scheme guidelines and procedure on sale of government*

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pool houses'. I have carefully read the government policy guidelines on the sale of the pool houses and find the plaintiffs claim without merit.

The plaintiffs claimed to be lawful occupants and that they ought to have been given the first option to purchase the suit property.

$5$ In paragraph 1a) of the plaint it is averred that; 'the 1st plaintiff has been at all material times since 1999 in occupation of the suit premises being houses controlled by the Ministry of Agriculture Animal Industries and Fisheries comprised in Plot 1 Nakasamba Close while the $2^{nd}$ plaintiff has been at all material times since 2007 in occupation of the suit premises comprised in plot 3 Nakasamba 10 Close.'

Further in paragraph 4 b) of the plaint, it is stated; 'that at time of occupying the suit premises, each of the plaintiffs did execute a one year tenancy agreement with Ministry of Animal Industries and Fisheries which were never renewed upon expiry but the plaintiff were allowed to continue occupying the premises and \ 5 paying some money to the Ministry of Agriculture.'

I have looked at annexure A 1 and A2 to the plaint. They are rental agreements issued to the $1^{st}$ and $2^{nd}$ plaintiffs by the Ministry of Agriculture Animal Industry and Fisheries. I am not in doubt that the $1^{\mathsf{st}}$ and $2^{\mathsf{nd}}$ plaintiffs rented the suit property and they occupied them as tenants.

S In paragraph 7 of the Plaint, the plaintiffs aver that the government continued receiving money from them and allowed them to stay after the expiry of their tenancies. It is on this basis that they claim to have become lawful occupants with security of tenure over other members of the public.

The meaning of lawful occupant is clearly defined in section 29 of the Land Act as joamended. The defendant rented out the suit premises to the plaintiffs who occupied the same. It is the plaintiffs' averment that even upon the expiry of the tenancy agreements they continued to pay rent to the defendant. It is illogical for a person who is renting property and who admits to paying rental dues to a landlord to turn around when asked to vacate the property13©9ff?^:laim \$o be a lawful occupant. On the face of it, this claim by the plaintiffs cannot stand.

Accordingly, upon perusal of this court's Judgment in Miscellaneous Cause No. 78 of 2009 together with the facts constituting the cause of action in Civil Suit No. -3410 of 2013, I find that the trial Judge in M. C No. 78 of 2009 exhaustively dealt with the issues that have been raised in the current suit. In that regard Civil Suit No. 410 of 2013 is dismissed with costs to the defendant on grounds that it is Res Judicata.

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In respect of Civil Suit No. 289 of 2014, it was submitted for the plaintiff that ^defendant's refusal to vacate the suit property was contemptuous and the continued wrongful possession deprived the 2nd defendant of his right to earn monthly rental income calculated at USD 1000 per month from August 2011 to date. He prayed for costs of the suit.

It is my view that the merits of this suit cannot be handled now, evidence must be 'Sled and the matter decided on its own merits. Upon dismissing civil suit no. 410 of 2013; Civil Suit No. 289 of 2014 shall proceed on its merits.

The objection is upheld in respect of Civil Suit No. 410 of 2013.

Civil Suit No. 289 of 2014 shall proceed to be heard and determined on its own merits since the issues therein were never determined in the Miscellaneous Td Cause.

The costs in Civil Suit No. 410 are to be met by the plaintiffs therein.

Costs in civil suit 289 of 2014 will abide the outcome of the said suit.

It is so ordered.

^jfreynam^

JUDGE

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