Walugembe v Dr. Mwesigye and Another (Civil Suit No. 533 of 2016) [2022] UGHCLD 138 (6 July 2022)

## THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA

## **LAND DIVISION**

## CIVIL SUIT NO. OF 533 OF 2016

<table>

WALUGEMBE MOSES .................................... $\mathsf{S}$

#### **VERSUS**

| | 1. DR. MWESIGYE FRANK | |----|------------------------------------| | 10 | <table> 2. HOPE MWESIGYE </table> |

# Before: Lady Justice Alexandra Nkonge Rugadya

## **JUDGMENT:**

#### 15

## Introduction:

$\mathscr{J}$

The plaintiff, Mr. Walugembe Moses is the registered proprietor of the property comprised in Kyadondo Block 29, plot 537 land at Mulago. He filed this suit against the defendants whom he claimed had no interest in the property but nevertheless had refused to vacate the suit

20 property.

> That the defendants have continued to collect rent from the property and prevented the plaintiff from accessing the suit property and that their actions on the land were high handed and intended to deprive him of his property.

The plaintiff therefore sought orders that the defendants were trespassers on the land; a permanent injunction against any further trespass; a declaration that the plaintiff was the 25 rightful owner of the suit land; an order for refund of monies illegally collected from the suit land; general and punitive damages; and costs. They also sought an eviction order from the suit property.

(Julout

## gepresentation:

Thr: plaintiff was rcproscntcd by M/s Joshuo- Musinguzi Assoclqted Advocqtes' jointly with M/s Mpagt Su'ndog & Co. Adaocates.

Thc defcndants on thcir part, wcrc rcprcscntcd by M/s Kateera & Kagutnlre Adoocqtes'

# 5 -tracts of the e:

Thc facts as summarizcd in thc .lo'int Schcduling Mcmorandum arc thal thc plaintiff is the rcgistcrcd proprictor of thc propcrty compriscd rn Kgadond'o Block 29 plot 537 lqnd at Mulago (suir properll), havirrg purchased thc samc from onc Scnyumba Christophcr Zaakc'

10 Thc ptaintiff chailcngcd thc dcfcndants' rcfusal to vacatc thc suit propcrty cvcn aftcr 2018 after thclcaseundcrwhichthcyclaimposscssionhadr:xpircrl..l.hatdcspitcthciactthathehadmade it so clcar to thcm that hc did not rccognize thcir lcasc intcrcst thcy continucd to collect from thc tenants who wcrc in occupation of thc propcrty, thus proventing him from putting his propcrty to propcr usc. ll was thc plaintiffs casc thcrcforc that thc dcfcndants had no interest enforceablc at law and no valid claim in thc suit property sincc their occupation was illegal.

- The defendants on thcir part denicd thc claim that thcy wcrc trcspassers on the suit land, having been in posscssion o[ thc suit propcrty for a pcriod of 41 ycars and that their lease had expired on 151b Scptcmbcr, 2018.'l'hat thc plaintiff bccamc a lcssor in 20 16 by rcason of having acquired the head titlc in rcspcct of thc land. 15 - As thc lcssccs on that land thcy had a right to usc thc suit land for their own bcncfil.'lhcy also claimcdtohavcmadcdcvelopmcntsonthcrcstlcntialhousewhichaltogctherwasvaluedatug.t 53O,73o'Ooo/=. 20

Thc dcfcndants also cxcrciscd thcir right of option to rcncw thc lcasc, a ycar prior to the cxpiry ofthclcasc. IlavingcxcrciscdthatoptionaSpcrthc]cascagrccmcnt,thcplaintiffaslcssorwas obligcd to rcncw thc leasc on similar tcrms and conditions as in thc lcasc duc to cxpire'

The dcfcndants did not fitc a countcr claim 25

## Aqreed facts:

At scheduling, thc loliowing wcrc idcntificd as the agrccrl facts:

- l..fhesuilproperluiscompisedinKgad.ondoBlock29PlotS3TlandatMulago. - <sup>30</sup> 2. 'fhe lease (lgr",".menl in respecl of the suit properTll commenced on 1itt' September' <sup>1969</sup>for lerm of 49 years which expired on l51t' September 20 18'

) i\,Jht

- 3. **Clause 4(a)** of the lease agreement provided that the lessee was entitled to ask the lessor for the renewal of the lease at least one year prior the expiration of the lease whereupon the lessor would renew the lease on the same terms and conditions as *the lease which was due to expire.* - 4. A dispute arose between the plaintiff and the defendant on the terms of the renewed lease.

$\mathsf{S}$

$\overline{ }$

5. The lease agreement provides that any dispute arising out of the lease agreement *be referred to arbitration.*

## Preliminary objection by the plaintiff:

The plaintiff in his submissions in rejoinder raised a preliminary objection to the amended defence claiming that no leave had been sought by the defendants before filing the amended 15 defence.

However as submitted by the defendants in their response, the court record shows that on 13<sup>th</sup> November, 2020 the defendants had filed MA No. 1676 of 2020 for leave to amend their WSD and that on 27th November, 2020 the two parties had consented to the filing of the amended WSD. This therefore settles that objection.

### Issues:

The following issues were the issues to be resolved by this court:

# 1) Whether the plaintiff has a cause of action against the defendants

$25$

- 2) Whether the defendants having exercised their option to renew the lease agreement prior to its expiry are in trespass. - 3) What are the remedies available to the parties.

## Analysis of the law and evidence:

#### Issue No. 1: Whether the plaintiff has a cause of action against the defendants. 30

The case for the plaintiff was led by the plaintiff as the sole witness in his claim. He testified as $Pw1$ .

Similarly for the defendants the 1<sup>st</sup> defendant testified as $Dw1$ . He claimed that they held a lease registered on the plaintiff's certificate of title for the suit land, acquired in 1969 for a period of 49 years and expiring on 15<sup>th</sup> September, 2018. That as defendants they had acquired it in 1998.

In the submissions by the defendants' counsel the claim was that the plaintiff had failed to make any pleading over their lease; that plaintiff made admissions of the existence of the defendant's $\mathsf{S}$ purported lease; that the property did not revert to the plaintiff and that the plaintiff departed from his pleadings. Accordingly that the plaintiff had no cause of action pleaded against them in respect of the lease.

The plaintiff in his rejoinder however denied all the above claims.

#### 10 Consideration of the issues by court:

I have carefully considered the pleadings and points raised by the counsel in their respective submissions. I will not repeat them here since they are on record.

### The law:

$\overline{ }$

Section 101 of the Evidence Act provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that 15 those facts exist and the burden of proof lies on that person.

**Section 103** further stipulates that:

# "The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence."

For court to satisfy itself that there is a cause of action, three essential elements must be 20 satisfied: that the plaintiff enjoyed a right; the right was violated and that the defendant was liable. (Ref: Auto Garage Vs Motokov (1971) E. A 519). In

The plaintiff in this case had the burden to prove that trespass had been committed on the land by the defendants.

- In Sheik Muhammed Lubowa versus Kitara Enterprises Ltd C. A No.4 of 1987, the East 25 African Court of Appeal the court noted that in order to prove the alleged trespass, it was incumbent on the party to show that the disputed land belonged to him; that the defendant had entered upon that land; and that the entry was unlawful in that it was made without his permission; or that the defendant had no claim or right or interest in the land. (Ref:also: H. C. C. S - No. 118 of 2012, Tayebwa Geoffrey and Anor Vs Kagimu Ngudde Mustafa; Justine E. M. N. 30 Lutaaya Vs Sterling Civil Engineering Co, SCCA No. 11 of 2002).

Juloet

It is an agrecd fact in this casc that thc plaintiff acquircd mailo intcrest in land comprised in Block 29 plot 537 lqnd 4t Mulago Kaln|.po.lo-, thc samc land ovcr which the dcfendants claim lo have hcld a valid lcasc as rcgistcrcd proprictors of land, compriscd in LRy 732 Folio 79 plot No. 537 Kgadondo Block 29, land at Mulago. (Itef: PExh 1)-

5 Ily way of some background, thc plaintifl filed this suit in 2O16 while the said lease was still running. Thc mattcr continucd in court for a pcriod of four ycars aftcr the lease had expired, as thc partics waitcd for thc outcomc of thc disputc on rcnt and of this suit.

The said disputc had bccn rcfcrrcd to CAI)ltR for arbitration as pcr thc arbitration clause of the lcasc agrecmcnt, which lcasc thc plaintiff sought to cherllcngc. IIowcvcr, dcspite sevcral orders and remindcrs Cn l)DIl ncver up with any solution.

# Anqlgsis of the evidence:

Thc plaintiff tcstificd as Purl and prcscntcd to court a ccrtilicatc oftitlc for thc mailo lald intcrcst acquircd b-y him, compriscd in plot 537 of Block 29, I<tbuga, lo.nd. at Mulago, covering an arca of 0. 1 5 hcctarcs, (PDxhl), proof that hc was thc owncr of thc land

- A perusal by ()urt of the ccrtificatc rcvcalcd that thc first rcgistcrcd owncrs appearing on the title were thc administrators of estatc of thc latc Tamukcddc who got rcgistcrcd onto that title on 23"r Scptembcr, 1995. On that samc day, Mr. scmci'lamukcddc and Mr. scrufusa zake wcre entered on thc titlc as thc rcgistcrcd owncrs of thc suit land 15 - on 2orh . January,2014, Mr. Scnyumba Christophcr zaakc gol rcgistcrcd thercon and somc two ycars latcr on 26)rh May, 2016 sold thc mailo intcrcst to thc plaintiff. Conirary to the claims by thc dcfcndants, thc ccrtificatc prcscntcd as PExh l, indicated clcarly on thc pagc rescrvcd for cncumbranccs that a leasc had bccn rcgistercd undcr thc namcs of Mrs Raj Kaur, and was to run for 49 ycars, lrom 'l 5rh Scptcmbcr, 1969. ?a

PExh 2 is thc lcasc agrccmcnt betwcen on thc onc hand, Mr. . Joswa Scrufusa Zaake and Mrs Raj Kaur in considcration of the surrcndcring of ernothcr lcasc compriscd in LRV 383, Follo 76 by hcr husband, I)ritam Singh-),5

In the tcrms of that lcasc agrccmcnt now undcr disputc, a ycarly rcnl ol Ugx 275/= was payable by the lcsscc at thc bcginning of cach ycar. Othcr tcrms emd condilions wcrc also spclt out in the leasc, somc of which thc partics invariably sought lo rcly on to advance their rcspective arguments in this suit.

Court howcvcr obscrvcd thal although thc lcasc had bccn signcd betwccn Mr.. Joswa Serufusa Zaakc as thc lcssor and Ms Iiaj Kaur thc namc of . JQswa Scrufusa Zaakc did not howcvcr fcature anywhcrc on PExh f as thc individual owncr of that propcrty-

5 U#!d

llis names appcarcd as ..1. Scrufusa, onc of thc adminislrators of thc cstate of the Iate Tamukcddc, which cstatc was thc first rcgistcrcd owncr of thc suit propcrty as rcflcctcd on that titlc.

Court was not availcd with any cxplanation as to how hc alonc had bccomc a lcssor in 1969 and 26 ycars later becamc rcgistcrcd on that samo land as a joint administrator of the estate of the Iate Tamukcddc.

I,'or thc delcndanls, DExh I was prcscntcd as thc ccrtificatc of titlc for thc suit land under which the said lcasc was rcgistcrcd. 'I'hc titb was issucd on 15rh Scptcmbcr 1969, also reading Raj Kaur as thc initial lcsscr: fr;r land dcscribcd as plot 537 of Block 29, Klbuga, lqnd at Muldgo.

lcomprlsed. t^ LRV 732 Folio 19 ). Thus DExh 7 o.nd PDxh -I wcrc two diffcrcnt titlcs issucd ovcr thc samc piccc of land, with cach bcaring sr:paralc entrics. 10

Itor DExh. I various lcssccs wcrc cntcrcd on thc ccrtificatc, thc lirst bcing llaj Kaur who held the lease from 1969 up to 1973 whcn Siraj Muyombya llakulu Mpagi Wamala took over from hcr. Thrcc othcr pcrsons had obtaincd thc rcgistration in thc pcriod bctwscn January, and April, 197 8.

Thc vcry last cntry on lhc titlc (DExh 1)was that ofthc dclcndants as joint owncrs. Thc two obtaincd rcgistration on that lcasc'on lOrr' May, 2OO7, having bought Abdalatif Juma's interest in 1998. (Ref. DExh 3,1. Thc circumstanccs undcr which cach of thcsc successive lessees had sccured thcir rcspcctivc intcrcsts wcrc howcvcr net madc known and/or disckrsed to court.

In dcaling with this mattcr, court notcd that a numbcr of points of law wcre raiscd by the defcndants which I nccd to considcr first. )o

# 17) The qUeged depqrture bg the plaintilf Jrorn the pleqdiags:

It the dcfcndants' claim that thc plaintitf did not raisc or includr: in his plcadings the issuc of validity of thc lcasc aBrccmcnt or any brcach of thc covcnant in clcuse I fe) of the lease agrecmcnt which hc now sccks to raisc. 25

ln raising it latcr, thc plaintiff had dcpartcd from thc plcadings thus offcnding thc rulc under order 6 ol the CPR (on plcadings) as wcl) as thc principlcs as highlighted in thc Suprcmc Court dccision of rnte4freight Forua.rders (U) Ltd vs EADB; SCCA No. 33 oJ L992.

It was dcclarcd in that casc that a party is cxpcctcd and bound lo provc the case as alleged by him and as covcred by thc issucs as framcd. A party will not bc allowcd to succced on a casc not set up by him/hcr and at trial changc thc casc or sct up a casc inconsistent with what was allcgcd in thc plcadings. Ilc/shc can only do so by way of amcndmcnts to thc plcadings.

6 (,1!,1-'%'

Accordingly that in this case the issue on the consent to transfer and the alleged invalidity of the lease were a departure from the pleadings since nowhere in the plaint had he made the inference that the defendants had breached the lease agreement. It follows therefore that the arguments were more or less raised as an afterthought, which court ought to disregard.

Counsel for the plaintiff however in countering that argument made reference to paragraph 7 of $\mathsf{S}$ the plaint, which reads:

> The plaintiff shall aver and contend that the defendants have no claim whatsoever in the suit property.

That the said issue had emanated from the defence on the existences, not the existence and validity of the lease and it became a matter to be tried and determined by court, and as such it 10 did not constitute a departure from the pleadings.

It is a correct position of the law and I could not agree more, that a party is bound by its own pleadings. Order 6 rule 6 of the CPR is intended to avoid a situation where a party is taken surprise when new or unpleaded fact is introduced.

- However in the same Supreme court decision as cited by the plaintiff's counsel in **SINBA K Ltd** 15 and 4 others vs UBC Civil Appeal No. 3 of 2014 the court duly recognized as good law the principle in Odd Jobbs vs Mubia [1970] E. A 476, that a court can decide an un pleaded matter if the parties have led evidence and addressed court on the matter in order to arrive at a correct decision in the case and to finally determine the controversy between the parties. - In the more recent Supreme Court decision of **Lutalo Moses (Administrator of the estate of** 20 the late Lutalo Phoebe vs Ojede Abdalla Bin Cona (Administrator of the estate of the late Cona Bin of Gulu: SCCA 15 of 2019, the same court expressed the view that a court has the duty to adjudicate matters in accordance with the law, values and norms and aspirations of the people and this duty should never be abrogated. - The superior court went on to state that the Court of Appeal in that case had been right in 25 identifying the real matter in controversy between the parties though unpleaded and in attempting to resolve the same. That in any case the parties had led evidence on the issue of ownership. Doing otherwise would amount to abrogation of court's duty.

The obligation is therefore cast on court to read the pleadings, listen to the evidence and determine with the assistance of the learned counsel for the parties, material proposition of 30 fact or law on which the parties are at variance. The parties and their counsel are bound to assist

# court in this proccss. (,lvundu a. Richs.rd as Centtql Nile Trq.nsporters Assocldtlon HCR No. oo3 oJ 2017.)

ln any case as pointcd out by counscl for thc plaintilf in rcjoindcr, in paragraph 7 of the plaint, thc plainrilf had ptcadcd that thc dclcndants had no claim whatsoevcr in thc suit property. This brought to thc forc all such cvidcncc and avcrmcnts considercd as nccc'ssary to prove thc matter.

Thus also in dcciding thc qucstbn of whcthcr or not thc plaintiff had a cause of action in trespass, or whcthcr or not thcy had protcctablc intcrcst in thc suit property, court had to consider all mattcrs collateral to the owncrship of thc suit propcrty and validity (or otherwise) of that lcasc.

# <sup>10</sup> 12) Whether or not a.d'nissions were made bg the plqintifJs:

'l'hc defcndants' counsel submittcd that in vicw of thc agrccd lacts, a clcar admission was made that at thc timc of filing thc suit the lcasc was still running and a valid lcasc at thc material time. That thc dcfcndant's lcasc and covcnanls thcrcin arc dccmcd to havc becomc known to the plaintiff when hc was purchasing thc suit propcrty in Junc, 2O 16.

# <sup>15</sup> lrurthcrmorc, that it is also tritc law that agrccd facts nccd no furthcr proof. (ReJ: itnperial Bank (U) Ltd ud T-Bucks EA Ltd & 2 others IICCS lvo. 637 of 2O13 and section 57 oJ the Evid.ence Act, Cp. 6).

ln reply howcvcr, thc plaintiff rcfutcd thc claim that admissions undcr thc agrcod facts had bcen madc in acknowlcdgmcnt of thc dcfcndants'intcrcst in thc lcasc. With all duc rcspccl however

2A to thc dcfcndants' a-rgumcnts on thc allcgcd admissions, judgmcnt on admission as provided for under ordcr 73 rule 6 of CPR rcquircs a party at any stagc of thc suit to apply to thc court for such judgmcnl or clrdcr on adm:ssion.

In thc wording ofthat rulc, thc provision may not appcar to bc mandatory bu1 in court's vicw, oncc a party secks to rcly on it hc or shc is undcr obligati<)n to filc an application bcforc the court is to grant any such ordcr.

It is also tritc that a judgmcnl on admission must not bc implicd. lt must be specific, unambiguous and sufficicntly clcar so that tho issuc in qucstion can bc said to be closcd. The rules do not cnvisagc a situation whcrc thc admission is inicrrcd from thc plcadings.

Thcrc should not bc any doubt that it was intcndcd to bc ar1 admission. (ReJ. also to: N(rsr(I. All

30 Wq.rsa,,m as Osege Rdlab Cirril Sutt IVo. OOOS-2O13), In light of thc abovc, and lrom thc perusal of thc facts as agrccd upon, thcrc is no indication that any such admission was cvcr intcndcd or madc by thc plaintiff.

<sup>8</sup> U"et

## (3) Requirement for consent to acquire the lease:

This sub-issue 3 touches on the merit of this case.

It was the plaintiff's contention that the lease relied on by the defendants was illegal and as such therefore the defendants had no interest in the land, having unlawfully acquired it. Counsel


Furthermore, that where a person invoking the aid of the court is so implicated the court of law would not come to his assistance; and that it matters not whether or not the illegality has been pleaded. (Active Automobile Spares vs Crane Bank & Rajesh Pakesh SCCA No. 21 of 2011).

The illegality alluded to in this instant suit was premised on the alleged failure by the defendants to secure prior consent of the land owner before acquisition and possession, in compliance with **clause 1(e)** of the lease agreement, **(PExh 2).**

#### 15 It states:

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'The lessee hereby covenants with lessor as hereunder:

Not to assign sublet or part with the possession of the land leased without the written consent of the lessor; provided however that such consent shall not be unreasonably withheld in case of respectable and responsible person and that ......

20 In the spirit of **section 10(1) of the Contracts Acts 2010** a contract is defined as:

> 'an agreement made with a free consent of parties with the capacity to contract, for a lawful consideration and with a lawful object, with the intention to be legally bound'.

It is now settled law that once a contract is valid, it automatically creates reciprocal rights and obligations between the parties thereto and when a document containing contractual terms is

25 signed, then in the absence of fraud, or misrepresentation the party signing it is bound by its terms. (See: William Kasozi versus DFCU Bank Ltd High Court Civil Suit No. 1326 of 2000).

In the present arrangement, neither the plaintiff nor the defendants were parties, witnesses or signatories as lessor or lessees under the agreement. They could not at any stage invoke any of the clauses within that agreement in pursuit of their respective interests.

Such a contract was not enforceable against either party since there was never at any time any 30 intention to be legally bound or any meeting of the minds for that matter. There were no reciprocal rights and obligations which were created for the benefit of the third parties.

Debog

Ilad thcrc bccn a valid contract bctwccn thcm, thcn thc narrativc would havc becn quite different and an action for brcach would bc justificd against onc or thc othcr party. l'lreach of contract presupposcs that a valid and binding contract did cxist in thc first placc.

It occurs whcn a party ncglccts, rcfuscs or fails to pcrform any part of its bargain or any tcrm of thc contract, writtcn or ora1, without a lcgit jmatc 1cga1 cxcusc. See: Rona.ld Kosibante as. Shell

# Ilganda Ltd HCCS No. 542 oJ 2006 [2OO8] ULR 690.

With all duc rcspcct thcrcforc thc partics in this su it wcrc not only total strangcrs to cach othcr but edso to thc lcasc agrccmcnq and ncithcr could bc txrund by it or derivc any bcnefit out of it.

In abscncc of any such cxprcss intcntion, thc law ordinariiy govr:rning thc rclationship bctwccn thc two p.rrtics is thc ,and Act, Ctrp. 227.

Sectlon 3I [I) of thc said Act, guarantccs sccurity of occupancy on any registered land to <sup>a</sup> tenanl by occupancy- Similarly, sectlon 29 (2) oJ the Act accords protcction to any party who qualifics undcr thc dcfinjtion c>f a borut Jide occupant. If a party occupicd thc land, utilized it or dcvclopcd it unchdlcngcd by thc rcgistcrcd owncr or agcnt of that owncr for a pcriod of 12 years

hc/ shc is considcrcd t<> bc a bona fide occupant. 15

> ln sectlon 29(5), any pcrson who purchascs or othcrwisc acquircs the intcrcst of a person qualified to be a bona fide occupant is also takcn tobc a bonaJide occupant and thercfore cqua.lly derivcs protoctablc intcrcst undcr the Act.

ifurthcrmorc, by virtuc of sectlon 34 and. 35 oJ the Land Act, Cap. 227 priot conscnt must be sccured from a rcgistcrcd owncr by a tcnant in occupation wishing to assign, sublct or subdivide thc tcnancy. (Sectio'l 34(1 . 20

Hc/shc is undcr obligation to givc thc first option to thc owncr lsectlon 35 (I)). In a similzLr way, wherc thc rcgistcred owncr intcnds to scll thc reversionary intercst in thc lartd he/shc must give thc first option of buying that intcrcst to thc tcnant by occupancy. (sectlon 35 (2,f.). Undcr those circumstanccs, thc ncw owncr is obligcd to rcspcct thc cxisting inlcrcsts.

A pcrusal of thr: rccor<l indicatcs lhat thc 49 ycar old lcasc had bccn crcatcd in 1969, and had cxpircd 'in 2018. 'l'hc validity of thc titlc hcld by thc plaintiff was not in contcntion. No countcr claim was filcd by thc dcfcndants and similarly no fraud had bccn plcadcd against the defendants'titlc.

30 <sup>I</sup>lowcvcr upon comparison of thc Lwo titlcs and as dcduccd from thc ycars of rcgistration appcaring on cach ccrtilicatc of titlc, all thc lcssccs appcaring on that titlc had acquircd their respcctivc intcrcsis long bcfore thc changcs in owncrship in thc mailo interests were made by the plaintiffls prcdcccssors in titlc.

10 0./b&6' As pointcd out carlier, thc first rcgistcrcd mailo owncr appcaring on thc plaintiffs title were the administrators ofthc cstatc ofthc latc'l'amukeddc in 1995. In 1973 however, and later on in 1978 the dcfcndants' prcdcccssors in thc lease titlc wcrc alrcady on that land. This was long before the plaintiffs predeccssors had acquired thcir rcspcctive interests as the mailo owners on

that samc land.

No information was availcd to cxplain how this had happcnr:d and how such acquisition by the 1cssccs' and thcir posscssion of land had rcmaincd unchallcngcd for that long. IJut cvcn morc pcrtincnt to thc plaintiffs argumcnt, it was not known whcthcr or not prior conscnt was obtaincd from thosc owncrs bcforc thc rcspcctivc lcasc assignmcnts wcrc madc.

It is clcar thcrcforc that thc dcfendants' occupation and utilzation of thc land as lcssecs had bccn and rcmaincd pcaccful until 2016 whcn thc plaintiff purchascd thc propcrty as a mailo rntcrcst ou,ncr 10

The equitablc doctrinc of proprictary cstoppcl bccomes applicable in circumstanccs where there are parallel intcrcsts running ovcr a singlc assct: thc owncr and the occupier. An owner may decide to remain passive in rospcct of his/hcr claims.

A passive oruner would bc dcprivcd of such ownership in favour of a,rt occupier of land in posscssion, who may bc undcr a mistakcn bcticf of his or hcr own inconsistent legal right, thus making it unconscionablc for thc owncr to rcasscrt his or hcr titlc (see.' Wtllnott a. Barber (1850.) 15 Ch D 96 dnd Tqgrors fcshlons Ltd. tt. LilrerPool victoria Trustees Co Ltd [1942]

QB 133). 20

Proprictary cstoppcl/ acquicsccncc would rcquirc proof in thc flrst placc that:

- a. 'lhe occupier made a mistake as^ to hi-s legal ights. - h. 'lhe occupier must have expended some monell or must haue done some act on the faith of his or her mislaken belief. - 'l'he outner of the legot ight, must know of the existence of his or her otun ighl which i-s incon.si.slenl with the ight claimed bg the occupier. (l - d. The owner of lhe legal ight, musl knotu of the ocanpier's mistaken belief of his or her rtghts. - 'lhe ouner of the legal ighl, musl haue encouraged the occupier in hLs or her expenditure of money or in the other acts which he or she hrl.s done, eilher directlg or bg abstaiing from esserling his or her legal ight. (-'

If thc lcgal owncr stands by and allows thc claimant to, lor cxamplc, build on his or hcr land or improvc his or hcr propcrty in thc mistakcn bclicf that thc claimant had acquired or would

1 1 S. Jhrd

#### 25

acquire rights in respect of that land or property then an estoppel will operate so as to prevent the legal owner insisting upon his strict legal rights.

It applies where the true owner by his or her words or conduct, so behaves as to lead another to believe that he or she will not insist on his or her strict legal rights, knowing or intending that the other will act on that belief, and that other does so act.

$\mathsf{S}$

In the Supreme court decision earlier cited ( Lutalo Moses (Administrator of the estate of the late Lutalo Phoebe vs Ojede Abdalla Bin Cona (Administrator of the estate of the late **Cona Bin of Gulu: SCCA 15 of 2019**, the concept of adverse possession which I find applicable to this case was discussed at length.

- 10 The court gave guidance on the preconditions in Uganda that must exist before one can be considered to be an adverse possessor. These were: - 1) Factual possession of the land. There must be physical control of the land in issue. The person in occupation must be dealing with the land as owner might be expected to, and no one else must be doing the same; - 2) The possession must be a continuous period of at least 12 years uninterrupted. - 3) Animus possidendi: an intention to possess the land to the exclusion of all others, including the legal owner. - 4) The possession must be adverse, ie without legal entitlement or without the owner's <pre>consent; (emphasis mine)</pre> - 5) The possession must be peaceful, exclusive, open and notorious so as to put the owner of the land on notice of the possessor's intention; - 6) The possession must start with a wrongful disposition of the rightful owner.

The title of adverse possessor rests on the infirmity/failure of the right of others to eject him. The owner is therefore under duty to protect his interest in the land; not just look on when his rights are either infringed or threatened by third parties such as squatters and trespassers occupying his or her land.

Failure to do so would mean that the owner of the land has abandoned the property to the adverse possessor or has acquiesced to the hostile acts and claims of the person in possession.

**Section 78 of the RTA** recognizes adverse possession in the terms below:

Aubolg

A person who claims that he/she has acquired title by possession to land registered under this Act may apply to the registrar for an order vesting the land in him /her for an estate in fee simple or other estate claimed.

Court added another aspect to the effect that the law does not make it a necessity for the claim of adverse possession to be by one person for the whole period; as long as the period of possession $\mathsf{S}$ is continuous, the period of possession of successive squatters may be aggregated. The said judgment of the superior court is binding to this court.

The plaintiff in the present case found the defendants in quiet possession of the land which they had held on continuously and exclusively for decades including making repairs, without interruption or consent of owner.

The authority Dr. Deodata Kekitinwa & 3 others vs Edward Haudo Wakida CACA No. 3 of 1997, relied on by counsel for the plaintiff is to the effect that a person who initially had a lease became a trespasser when the lease expired. The question remains however whether or not it applies to the specific circumstances of this case.

It is not in doubt that the defendants had already entered the premises, having lived on the suit 15 land for several years, enjoying quiet and uninterrupted possession thereof under successive mailo owners, though under the mistaken belief that they were operating under a valid lease and therefore in legal occupation of the suit property.

In yet another authority cited by the defendants: Justine E. M. N Lutaya vs Sterling Civil Engineering Co. Ltd Civil Appeal No. 11 of 2002, the Supreme Court had this to say: 20

## .... the tort of trespass to land is committed, not against the land but the person in actual or constructive possession of the land. At common law the cardinal rule is that only the person in possession of land has such capacity to sue in trespass.

Deduced from the authority above, it is only the owner of an unencumbered land who has the capacity to sue in an action for trespass. By maintaining an action in trespass the plaintiff 25 seemed to suggest that the land was not encumbered. He was fully aware that the defendants were in physical possession and had even lodged a caveat on that land.

An encumbrance as would disentitle the owner from suing may include an unexpired lease. It may also include the equitable interest acquired over a period of time through proprietary

estoppel, as in this present case. 30

Although the plaintiff therefore had a title which the defendants did not seek to challenge, as the owner, he was never in physical possession of the disputed property at any material time.

13 Jul 13

In light of the above it is the firm view held by this court that the plaintiff's right as mailo owner were subject to the existing equitable interests on the suit land, and in respect of which section 35 (8) of the Land Act, Cap. 227 applies.

The section stipulates that a change of ownership of title effected by the owner by sale, grant and succession or otherwise shall not in any way affect the existing lawful interests or bonafide occupant.

In the circumstances, the plaintiff could therefore neither sue for trespass nor could he therefore sue for the recovery of land since the latter is restricted by the law on limitation.

Section 5 of Limitation Act which governs the limitation period for recovery of land provides $10$ as follows:

> "No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or her or, if it first accrued to some person through whom he or she claims, to that person."(emphasis added).

It is the established law that a suit which is barred by statute where the plaintiff has not pleaded

grounds of exemption from limitation in accordance with Order 7 r.6 Civil Procedure Rules S. I 15 **71-1** must be rejected because in such a suit the court is barred from granting a relief or remedy. See: Vincent Rule Opio v. Attorney General [1990 – 1992] KALR 68; Onesiforo Bamuwayira & 2 Others v. Attorney General (1973) HCB 87; John Oitamong v. Mohammed Olinga [1985] HCB 86.

20 **Section 6 of the Limitation Act (supra)** of the same Act provides:

$\mathsf{S}$

#### "The right of action shall be deemed to have accrued on the date of the dispossession."

The direct import of **section 5 and 6** is, first, that a person dispossessed of land cannot bring an action to recover land after the expiration of twelve years from the date on which the right of action accrued.

- 25 It dates back to the time when the right first accrued to the person who ought to have brought the action. In the case of F. X Miramago v. Attorney General [1979] HCB 24, it was held that the period of limitation begins to run as against a plaintiff from the time the cause of action accrued until when the suit is actually filed. Since the plaintiff in any case was never in possession, he could not claim to have been dispossessed of the suit land. - Once a cause of action has accrued, for as long as there is capacity to sue, time begins to run as 30 against the plaintiff unless by reason of disability, fraud or mistake the operative facts were not discovered immediately.

14 Olilorg

Thc causc of action for rccovcry of land by thc original owncr in this casc accruccl in 1973 whcn wilhout conscnt oflhc owncr Iiaj Kaur had sold hcr lcasc intcrcst to Siraj Ilakulumpagi Wamzrla. Wilhin thc ycar 1978 thrcc othcr transfcrs of lcasc intcrcsts wcrc madc betwcen third parties and no action for cjcction was cvcr takcn against any of thc occupants by the rcspcctivc owners.

5 ns against thc dcfcndants thr:msclvcs it would sccm that thc dcfcndants first madc thc purchase from Abdalatif .iuma, thcir prcdeccssor who had hcld thc lcasc from 24th April, 1978, secured by him from Raj Kaur.

In 199U the irrcgularity continucd unabatcd whcn without conscnt of thc owncrs hc sold the lcasc to thc dcfcndants, who got duly rcgistcrcd on thc lcasc ritlc on 2007. DExh 3 is proof that Abdalatif Juma had sold his purportcri lcasc intcrcsl to thc dclcndants on 3''l l,'ebruary, 1998.

)-a

The samc cxhibit scrvcs as proof that prior to thc plaintiffs purchasc of the land in 2016, the defcndants wcrc alrcady in posscssi<ln and their stay rcmaincd unchallengcd for a pcriod of 18 ycars.

Thc causc of action thus accrucd as carly as 1998 and by thc timc thc plaintiff acquircd intcrest in thc land tho dcfcndants wcrc alrcady occupants thcrcon. Ncithcr Juma's purchasc ofthe lease nor his subscqucnt assignmcnl of intcrcst to thc dcfcndants were evcr challenged by the plaintiffs prcdcccssors. 15

As gathcrcd from thc plaintiffs argumcnts, a 'non official'scarch had bccn carried out at the land officc. Thc plaintiffs point was that hc did not comc across any lcasc in the names of the defendants rcgistcrcd on his titic.

Thc'non official'scarch was howcvcr ncithcr propcrly cxpiaincd nor backcd by any evidcnce. It was proof that no scarch was cvcr czrrricd in thc land officc and morc likcly than not, the plaintiff ncvcr carricd out any scarch on the ground bcforc purchasing thc propcrty.

As a prospcctivc purchascr, thc plaintiff faltcrcd whcn hc failcd to sccurc conscnt of the dcfcndants bcforc purchasing thc land in 2016. Ilc ought to havc addrcssed the issue ofthe dcfcndants'pcrsistcnt occupation and posscssion with thc pcrson who sold him thc land, in a bid 1() havc thc mattcr rcsolvcd, bcforc cntcring into thc commitmcnt to purchasc the propcrty. 25

No salc agrccmcnt for thc mailo intcrcsl bctwoonJoswa Scrufusa Zaake the original mailo owner and thc plaintiff was availcd to court lo dcmonstratc that any such stcps to addrqss the dcfendants' occupation had bccn considcrcd.

Thc abovc would imply that thc dcfcndants wcrc ncvcr involvcd in thc prior cngagcmcnts bctwccn thc vcndor and thr: purchascr of thc propcrty which thcy had occupicd for dccadcs. It would also imply that in disrcgard of thr: rcquircmt)nts undcr section 34 and 35 oJ the Land Act, lhcy

15 UJ"'8

wcrc not givcn thc first option to purchasc that land as sitting tcnants. Thcsc were matters that could havc bccn brought out clcarly by thc dcfcndants by way of a countcrclaim.

The issue of abscncc of conscnt and thc validity of thc lcasc thcreforc impacted not only the defcndants but thc plaintiff as wcll sincc both wcrc strangcrs to that agrcement. I.loth did not comply with thc rcquircmcnts of conscnt undcr thc l-and Act.

l;

# Iss..e No. 2: Whethct the defenddnts hdving exercised their option to renew the lease ,nent Pnor to its expirq q.re in trespass.

Ily thcir amcndcd WSI) filed 27rr, Novembcr, 2O2O,lhc dcfcndants plcaded that in 2017 which was a year prior to the cxpiry of thc lcasc they cxcrcised thcir option and right under clq,use 4(a)

(c) of the lcasc agrccment to rencw thc lcasc agrccmcnt at the cnd of the said lease on 15th Scptembcr, 2018. 10

That thc plaintiff was thcrcforc undcr obligation to do rcncw thc leasc undcr the same terms and conditions as providcd in thc cxpircd lcasc, for a furthcr 49 ycars. As such thcrcforc his point was that thc issuc of trcspass did not arisc, sincc thc dcfcndants had remained in lawful

occupation pcnding thc dccision from CAI)lrR. 15

> Thc dcfcndants also rclied on DExh 5, a lcttcr addresscd to thcm, which indicatcs thc following proposals that wcrc madc by thc plaintiff:

> > i. 1hdl a fteu lease is aegotiated betueen the parlies;

ii. 'I'hat Uol1 pa. A USD 2OO0 as rent per month

iii. That premium is neqotiated and agreed upon for the new lease.

Thc altcrnativc as offcrcd by thc plaintiff in that lcttor was to rcquirc thc defcndalts pay USI) 30OO, eacb month undcr a tenancy agrccmcnt. In their rcsponsc howevcr, the defendants dcclined to takc up thc offcr claiming that thc amount was cxccssive. lDExh 4).

Thc plaintiff howcvcr maintaincd thcir stand that thc dcfcndants dcrivcd no bcncfit from a lease they wcrc not partics to and that thc argumcnts by thc dcfcndants should bc disrcgarded by court. 25

#### Resolution ba court:

clause 4 /a, statcs as lollows

The lessee shall haoe the optio^ or right to refleu the lease o^ sone terms and conditio^s herei^ stated. for a jurther period ol 49 gears at the end of the demise oJ the ^otice sent to the lessor a year before the e^d of the demise heieunder before creo.ted.. PROVIDED that such extension as hereunder ne^tioned bego^d. 49 gears be subject to further co sent oJ

1,6Udld

## the necessdry authorltg or the Mt^lster os the cd.se mag be uthlch rndy be obtdlned. afier the exptry o! the 4Vh gear o! the detulse hereundet granted.

The issue of thc validity of the lcasc has alrcady been dealt with and concluded by this court.

Thc dcfcndants just likc thc plaintiff, could nol invokc any clausc out of a non-existent or invalid lcasc with thc objcctivc of gaining advantagc or bcncfit from it, and only when it suitcd them. As strangcrs to thc agrccmcnt, thc option or right to rcncw thc lcasc was not availablc to them.

Thcir argumcnt thcrcforc on thc point that thc piaintiff was undcr obligation to renew the lease after thcy had cxcrciscd that option was ncilhcr tcnablc nor hclpful to their casc Correspondcnccs bctwccn thc parties in this suit DExh 4 ldalcd 25th July, 2017), and DExh 5

(datcd lgrh July, 2017) during thc timc whcn thc lcasc was still subsisting werc not evidence of its validity or intcndcd rcncwal or admission of thc dcfcndants' rights as lessees on the land. Thesc wcrc mcre ncgotiations for a frcsh lcasc, but without arly such backing from the lcase 10

Thc submissions madc by the defendants on thcir purportcd tight or thc option to renew the said lcasc; and thc rcfcrcncc of thc disputc rcsolution for arbitration wcre thcrefore disregarded by

this court. L5

Taking into considcration arll thc abovc factors, thc cxcrcisc of thc option to renew was a prescrve ofllaj Kaur who (up to thc time shc disposcd ofhcr intcrcst) had bccn rccognizcd as thc lcgitimate owncr of that lcsscc.

### In conclqglglt:

- 2A in thc prcmiscs: - 'l'hc plaintiff succccdcd in proving that hc was thc rcgistercd owner of the property in disputc and that upon cxpiry of thc lcasc in 2018, thc titlc had rcverted to him. - Thcrc was non-compliancc wjth thc requircmcnt for conscnl undcr thc Land. Act, Co. P. 227 in rcspccl of thc transactions madc in this suit by both partics. - 'l'hc partics jn this suit could not rcly on thc lcasc agrccmcnt, invokc any clause or dcrive any bcncfit out of i1 sincc thcy wcrc both strangcrs to thc agrccment. The only recourse opcn to thcm was to ncgotiatc and cnter into a frcsh lcasc if thcy wishcd to rctain the rclationship of land lord and tcnant. - 'l'hc dcfcndants dcrivcd intcrcst in thc suit propcrty undcr thc doctdnc of proprietary cstoppcl which accordcd thcm protection on thc suit propcrly as the sitting tenants. It

"\r-u"%

servcd as an cstoppcl against thc plaintiffs dcnial of thc dcfcndant's posscssion, stay and utilization of thc land.

#### Issue No. 3,'.fqs5!ble remedleSl

The plaintiff sought for a declaration that hc is thc rightful owncr of thc suit property; damages for trespass; a pcrmancnt injunction; and cviction of thc dcfendants from his land.

## Vo.luqtlon of the propeftg:

DExh 6 is a valuation rcport daicd 21"r March, 2018 which was prcsentcd by the dcfcndants. It was addrcsscd to the accrcditcd mcdiator of this division and filcd in court on 5rh April, 201 8.

It indicatcs that:

a) a cavcat had bccn lodgcd by thc dcfcndants on 8th July, 2016:

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b) thc valuc of thc suit land was Ugx 299,979,4OOF; thc valuc of thc bujldings Ugx 7a7,546,56O/=.1 rcccivablc incomc for thc rcmaining rcntal period Ugx 43,2OO'OOO/=.

<sup>I</sup>lowcvcr thc dcfcndants in paragraph 7 of thcir amcnded WSI) rcfcrrcd to a figure of Ugx SOO,OOO,OOO/=, asscsscd in thc report as thc value of thc propcrty.

On thc othcr hand howcvcr, according to thc plcadings undcr thc plaint filcd in 2O 16 the ostimatcd figurc that was givcn at thc timc was Ugx 60,O0O,000/= which amount was chalbngcd by thc dcfcndants.

DExh 7 is a copy of thc transfcr form for the suit propcrty signcd by Ssenyumba Christophcr Zakc as thc tremsfcror and thc plaintiff as thc transfcree. Thc consideration for thc suit propcrty was indicated as Ugx 75,OOO,OOO/=.

Thc abovc inconsistencies in thc valuc of thc suit propcrty could not be rcconciled by this court.

> l,-rom what court was ablc 1o scc at thc locu-s visit, thc prcmiscs wcrc locatcd in a prime arca

#### Outstan d.ing rent .arretars:

Ilcgarding outstanding rcnt payabb, in thc valuation rcport filcd in court on 5'h April, 2017lDExh 6) as alrcady notL'd, thc rcccivablc rcntal income from thc suit property was asscsscd as Ugx 43,2OO,OOO/=.

i8 \,t^1""8

However, it was the claim by the plaintiff that the defendants have continued to collect rent from the property. He therefore prayed for a refund of **USD 132,000.** That the said amount was based on **Dw1's** statement made at the *locus* that they had been receiving rent from the tenant at **USD 1700** per month. This was not documented.

However as pointed out by counsel for the defendants, special damages must be specifically pleaded. In addition, they must also be specifically proved. (Gapco (U) Ltd vs A. S Transportes (U) Ltd CACA No. 18/2004.)

$\mathsf{S}$

Court also noted during the locus visit that the premises had an old but well-kept building which was enclosed in a perimeter wall, recently repaired and maintained by the defendants.

However contrary to the claims made by the plaintiff, the premises were not in use. The 15 estimate for actual rent that ought to have been paid to the plaintiff as the owner was therefore left to the discretion of this court.

In light of all the above findings and conclusions, the rest of the prayers made by the plaintiff for eviction, general and punitive damages against the defendants could not be sustained.

In the premises, this court makes the following orders and declarations: 20

- 1. Following the expiry of the lease on 15<sup>th</sup> September, 2018, the land comprised in Kibuga Block 29, plot 537, land at Mulago reverted to the plaintiff as the mailo owner. - 2. The defendants shall pay the estimated rental arrears owed to the plaintiff amounting to Ugx 60,000,000/= (at a rate of 20,000,000/= per year, covering a period of 3 years.

The said amount takes into account a number of factors: the inflation; the consideration that this was prime area; possible loss of income during covid 19 endemic and the period of time the suit has spent in court).

- 3. Unless the parties through joint agreement agree on the terms and conditions for a fresh lease, the suit property is to be sold at the prevailing market value with the first option to purchase it to be given to the defendants as the sitting tenants and holders of an equitable interest on the suit land. - 35 - 4. The defendants shall within a period of three months' pay all the outstanding dues and property rates including all arrears, in respect of the property to be assessed by the KCCA.

19 Julio $19$

5. Each party to meet its own costs.

$\mathbf{I}$

Alexandra Nkonge Rugadya

$\mathsf{S}$ ${\it Judge}$

$\boldsymbol{\theta}$

$\bullet$

06<sup>th</sup> July, 2022.

Delivered by email<br> alarge<br> $\sqrt{12022}$ .