IN THE HIGH COURT OF UGANDA
HOLDEN AT KAMPALA
HIGH COURT CIVIL SUIT NO. 00-CV-CS-1380 OF 1986
OSOTRACO LIMITED PLAINTIFF
ATTORNEY GENERAL DEFENDANT
BEFORE: THE HONOURABLE MR. JUSTICE FMS EGONDA-NTENDE
1. The Plaintiff, M/S Osotraco Limited, seeks in this action, an order for eviction of the defendant from the suit premises, a permanent injunction, special and general damages, mesne profits, interest and costs of this suit. The plaintiff claims to be the registered proprietor of the Plot No. 69 Mbuya Hill, Kampala, hereinafter referred to as the suit property. It claims to have purchased the same from Uganda Times Newspapers Limited sometime in June 1985 and a transfer effected accordingly. It is alleged that the employees of the Ministry of the Information and Broadcasting were in occupation of the property, and refused to vacate when requested to do so, claiming that the suit property belonged to the Ministry of Information and Broadcasting. As a result this suit was commenced.
2. The defendant, in its amended written statement of defence, filed on 12th July 1988, asserts that the sale of the suit property and subsequent transfer were done without the proper authority and necessary consents of the Ministry of Information and Broadcasting and Ministry of Finance, the shareholders of the Uganda Times Ltd. The defendant contended that owing to the illegal nature of the contract of sale, the defendants are the legal proprietors of the suit property, and its employees are in lawful occupation of the same.
3. When this case was called for hearing Counsel for the defendant raised a preliminary objection that the plaint did not disclose a cause of action. I dismissed the preliminary objection and stated that I will provide reasons for doing so in this judgment. I now set forth my reasons.
4. Ms Patricia Mutesi, learned counsel for the defendants submitted that the plaint did not disclose a cause of action for several reasons. Firstly, that paragraph 2 of the plaint did not state that the Attorney General was being sued in his representative capacity for the acts of his servants or agent. Secondly, that paragraph 4 of the plaint did not allege that the employees in trespassing on the suit property did this in the course of their employment or duty. She further submitted that the plaint had failed to comply with Order 4 Rule 1 of the Civil Procedures Rules. She referred to the cases of Auto Garage v Motokov  E.A. 51 and Kangave v Attorney General  U.L.R. 150 as authority for her submission.
5. Ms Mutesi further claimed that the plaintiff had no locus, as he was not properly registered as the proprietor of the suit property. She claimed that the certificate of title attached to the plaint did not have the Registrar’s signature. Lastly, she contended that as the plaint claimed injunctive relief that was barred by the Government Proceedings Act, the plaint did not a disclose a cause of action.
6. Mr. Sentemero, learned counsel for the plaintiff opposed the preliminary objection. He submitted that the plaint disclosed a cause of action and relied on Auto Garage v Motokov. He submitted that the Registrar of Titles had signed the certificate.
7. I have examined the plaint in this matter. I am satisfied that it discloses a cause of action. It is not strictly essential that it be pleaded in the plaint that servants of the defendant were acting in the course of their employment. It is sufficient to state that it is the acts of servants of the defendant, which are complained against. The defendant is in a better position to know if they were acting in the course of their employment or not. It is up to him to raise it in his pleadings.
8. There is no requirement at law that the plaint must allege that the Attorney General is being sued in a representative capacity. The Attorney General is sued by virtue of Section 11 of the Government Proceedings Act in respect of all claims against Government. As regards the claim for injunctive relief, this was not the only relief claimed. It is a matter that can appropriately be dealt with at the relief stage. For those reasons I dismissed the preliminary objection.
9. At the commencement of the trial counsel agreed on five issues. (1) Whether the Plaintiff is the registered proprietor and entitled to possession of the suit property; (2) Whether the plaintiff is entitled to mesne profits from the defendant; (3) Whether the Plaintiff is entitled to special and general damages, and if so how much? (4) Whether the Plaintiff is entitled to an order for eviction and or vacant possession from the Attorney General; and (5) Which party is entitled to costs of the suit?
10. The plaintiff called one witness to prove its case and the defendant called none. Plaintiff’s Witness Number was James Ocaya, a director of the Plaintiff since 1981 to-date. He testified that sometime in 1985 the plaintiff company purchased from the Uganda Times Newspapers Limited the suit property. The plaintiff company paid the purchase price and the suit property was transferred into the names of the Plaintiff Company on 23rd August 1985. He produced as an exhibit a certified copy of the certificate of title to the suit property.
11. Plaintiff’s witness No. 1 further testified that after purchase of this property, the plaintiff failed to obtain vacant possession of the said property. The Ministry of Information and Broadcasting intervened claiming ownership of the property, and subsequently obtained a court injunction restraining the plaintiff from dealing with the suit property. Efforts in 1999 to evict the occupants were seriously resisted by the office of the Attorney General. In the meantime the company had mortgaged the suit property to a bank to secure a loan.
12. In further testimony the witness stated that the suit property was made of four blocks of residential flats, each block made up of eight housing units, and in addition there were servants quarters for each of the units. In 1985 each housing unit could fetch rent per month of shs.150,000/=. This was due to the poor security situation in the area at the time. By 1990 security had improved and the company was receiving offers of shs.300,000/= per month per unit. As of now the witness was of the opinion that each would fetch up to Shs.350,000/= per month.
13. In cross-examination the witness denied that the company received any letter from a Government official prohibiting the sale from taking place.
14. In his address to this court, learned Counsel for the Plaintiff, Mr. Madrama, submitted that with regard to issue number one, the plaintiff had proved that it’s the registered proprietor of the suit property and its title can not be impeached save for fraud. He submitted, relying on Kampala Bottlers Ltd vs. Damanico (U) Limited, Civil Appeal No. 22 of 1992, (unreported), that fraud must be specifically pleaded and proved, and it must be attributable to the transferee. Fraud was never pleaded or proved in the instant case.
15. With regard to the issue for mesne profits, Mr. Madrama submitted that Section 2 of the Civil Procedure Act defines mesne profits. The plaintiff must show that the defendant is in wrongful possession. He submitted that this had been proved as defendant denied the plaintiffs title, claiming to be the rightful owner of the suit property. The original owner was Uganda Times Newspapers Limited, and not the defendant. Mr. Madrama further submitted that the plaintiff was entitled to general damages as the Attorney General opposed both the mortgage of the property in question and plaintiff’s possession of the same. He submitted that the principle of Restitutio Intergrum applies and requires that the plaintiff be put in a position he would have been if the defendant had not interfered with his rights. He abandoned the claim for special damages as no evidence had been led to support the same.
16. With regard to quantum of mesne profits, Mr. Madrama claimed Shs. 62,400,000/= for the period between 1986 and 1990, based upon shs.150,000/= per month per unit, with interest at 25% per annum. Between January 1991 to December 2000, he claimed mesne profits of Shs.288,000,000/= at the rate of Shs.300,000/= per month per unit, with interest at 12% per annum. And from January 2001 to January 2002 he claimed mesne profits of Shs.33,550,000/= at the rate of Shs.350,000/= per month per unit, with interest at 6% per annum. He further prayed for the sum of Shs.100,000,000/= for general damages for none use of the property including as a security for loans. He prayed for costs, an order for eviction and vacation of the temporary injunction. In the alternative he prayed for a declaratory order that the plaintiff is entitled to possession of the suit property.
17. I now turn to the first issue. And that is whether the Plaintiff is the registered proprietor of the suit property and entitled to possession of the same. This issue can only be answered in the affirmative on both the pleadings and the evidence before court this court. Plaintiffs witness number one produced a certified copy of the certificate of title to the suit property. It was admitted in evidence as exhibit P2. On the 23rd August 1985, the suit property was transferred to the Plaintiff under Instrument No. 223644 and the previous owner, Uganda Times Newspapers Limited, was cancelled. The suit property is comprised in Leasehold Register, Volume 1103 Folio 1.
18. The history of the suit property evident from the certificate of title is that it was leased by one Saraswati Gangaram, the owner of the Freehold title, to Uganda Consolidated Properties Limited with effect from 1st May 1954. A transfer was effected on the register from Uganda Consolidated Properties Ltd to Uganda Times Newspapers Limited on 7th June 1985. The lease of the property was due to expire or actually expired on 30th April 2001. On the 27th November 1986 the Ministry of Information and Broadcasting entered a caveat on the register.
19. The defendant challenges the Plaintiffs ownership of the suit property in paragraphs 3 and 4 of the written statement of defence in these terms. “3.The defendant avers that the sale and subsequent transfer, of the property in issue was done without the proper and necessary consents of the Ministry of Information and Broadcasting and of the Ministry of Finance and that of the shareholders in the company being obtained. The defendant further avers that the then Minister of Information and Broadcasting expressly prohibited any sale transaction in respect of the said property but despite the said prohibition the plaintiff in connivance with the then Managing Director took advantage of the subsequent chaos of the 1985, July, 27th coup and fraudulently caused the transfer of the property from Uganda Times Ltd to M/S Osotraco Ltd. Accordingly the claim contained in paragraph 3 is not admitted”
20. “4. The defendant avers that owing to the illegal nature of the transaction under which M/S Osotraco obtained the referred to certificate of title in the plaint, he is still, unless otherwise determined by this Honourable Court, the legal proprietor of Plot 69 Mbuya Hill and accordingly his employees do legally occupy the said premises. Therefore the claims and allegations contained in paragraphs 4,5,6,7, and 8 of the plaint are not admitted.”
21. The defendant does not show on its pleadings under what law that consents of the Ministry of Information and Broadcasting and the Ministry of Finance and of the shareholders are necessary before the suit property can be disposed of or transferred by Uganda Times Newspapers Limited to Osotraco Limited or any other natural or juridical person for that matter. No law is pointed to by the defendant that makes the transfer of the suit property as it occurred to be illegal. I am unable to lay my hands on any such law too.
22. While in paragraph 3 of the amended written statement of defence, the defendant seems to acknowledge that Uganda Times Newspapers Limited was the registered proprietor of the suit property, in paragraph 4 of the same document, the defendant asserts that it is legal proprietor of the suit property unless this court holds otherwise. The defendant does not lay any basis at law or by agreement from whence it derives its claim of title to the suit property.
23. The plaintiff has produced a certified copy of the certificate of title to the property. The plaintiff is the registered proprietor with effect from the 23rd August 1985. This title has not been impeached by fraud. No particulars of fraud have been alleged in the written statement of defence. According to section 56 of the Registration of Titles Act production of a certificate of title is conclusive evidence of ownership of the property in question. I find that the plaintiff is the registered owner of the suit property, and as between the plaintiff and defendant, the plaintiff is entitled to possession of the suit property.
24. Issue number two is whether the plaintiff is entitled to mesne profits from the defendant. Section 2 of the Civil Procedure Act defines