Deus Mwesigye & 3 Ors for and On behalf of 307 others v. City Council of Kampala & Anor

In The High Court Of Uganda Holden at Kampala

Commercial Court Division

HCT-00-CC-CS-0495-2005

Before: The Honourable Justice FMS Egonda-Ntende

14^thJanuary, 2008

Contract - breach of contract - What is the relationship between the parties?

Contract - What remedies are available to the parties? - Specific performance - permanent injunction - a declaratory order - an eviction order – damages - costs of this suit.

The plaintiffs were market vendors, operating their business in St. Balikudembe Market. They rented stalls from defendant no.1. In 1997 the defendant no.1 asked them to build slabs in their stalls and in return they would be granted 15 year leases in respect of their stalls. The plaintiffs built the stalls and the same were approved by the defendant no.1. The defendant no.1 undertook to prepare the 15 year lease agreements and avail them to the plaintiffs for signature but it failed to do so, in spite of repeated demands from the plaintiffs. It was further contended that the defendant no.1, entered into an agreement with the defendant no.2 to collect rentals from the plaintiffs, and that this had been done without regard to the fact that the plaintiffs were lessees, who had invested substantially in the stalls, and were entitled to a lease with specific terms. The defendants persistently increased the rentals without consultation or regard to the plaintiffs as lessees in the market. The plaintiffs contended that they were entitled to notice as lessees before an increase of the rent was made by defendants. The plaintiffs further contended that the defendant no.2 had hired out parking spaces, entrances and corridors, for the plaintiffs’ customers and suppliers to mobile vendors and illegal vendors selling the same commodities as the plaintiffs and at reduced prices thereby occasioning loss of business and profit to the plaintiffs. The plaintiffs set out in the plaint the following particulars of breaches of contract:

‘(a) Refusing to acknowledge lessor-lessee relationship with the plaintiffs. b) Increased rent charges/fees. (c) Acceptance of illegal vendors to operate within the market. (d) Collection of fees, charges and or rentals from illegal vendors. (e) Allowing illegal vendors to occupy the market or any part thereof. (f) Failure to execute a formal lease document.’

Defendant no.1, in its written statement of defence denied the claim, and all allegations in the plaint. It contended that the suit was time barred. It denied ever promising the plaintiffs leases as alleged. The plaintiffs as vendors in the defendant no.1’s market had to pay all rentals and market dues as determined by the defendant no.1. The defendant denied charging any illegal dues. It further contended that the plaintiff have no locus standi to determine illegal vendors. It prayed that the suit be dismissed with costs.

Held:

1. On the evidence before the court, the plaintiffs who bear the burden to prove their case on a balance of probability did not establish any relationship with the defendant no.1.

2. Costs denied to defendant no. 1 because it unnecessarily prolonged this matter, introducing into trial matters that need not have gone to trial.

 

Case dismissed.

 

JUDGMENT

1. The Plaintiffs contend in the plaint that they bring this action for breach of contract, and are seeking orders for specific performance, permanent injunction, a declaratory order, an eviction order, damages and costs of this suit. The plaintiffs are market vendors, operating their business in St. Balikudembe Market. They rent stalls from defendant no.1. In 1997 the defendant no.1 asked them to build slabs in their stalls and in return they would be granted 15 year leases in respect of their stalls.

2. The plaintiffs built the stalls and the same were approved by the defendant no.1. The defendant no.1 undertook to prepare the 15 year lease agreements and avail them to the plaintiffs for signature but it has failed to do so, in spite of repeated demands from the plaintiffs.

3. It is further contended that the defendant no.1, has entered into an agreement with the defendant no.2 to collect rentals from the plaintiffs, and that this has been done without regard to the fact that the plaintiffs are lessees, who have invested substantially in the stalls, and are entitled to a lease with specific terms. The defendants have persistently increased the rentals without consultation or regard to the plaintiffs as lessees in the market. The plaintiffs contend that they are entitled to notice as lessees before an increase of the rent is made by defendants.

4. The plaintiffs further contend that the defendant no.2 has hired out parking spaces, entrances and corridors, for the plaintiffs’ customers and suppliers to mobile vendors and illegal vendors selling the same commodities as the plaintiffs and at reduced prices thereby occasioning loss of business and profit to the plaintiffs.

5. The plaintiffs set out in the plaint the following particulars of breaches of contract:

‘(a) Refusing to acknowledge lessor-lessee relationship with the plaintiffs. b) Increased rent charges/fees. (c) Acceptance of illegal vendors to operate within the market. (d) Collection of fees, charges and or rentals from illegal vendors. (e) Allowing illegal vendors to occupy the market or any part thereof. (f) Failure to execute a formal lease document.’

6. Defendant no.1, in its written statement of defence denied the claim, and all allegations in the plaint. It contended that the suit was time barred. It denied ever promising the plaintiffs leases as alleged. The plaintiffs as vendors in the defendant no.1’s market had to pay all rentals and market dues as determined by the defendant no.1. The defendant denied charging any illegal dues. It further contended that the plaintiff have no locus standi to determine illegal vendors. It prayed that the suit be dismissed with costs.

7. PW1 was Luswa Dan Kiwanuka, a vendor in St. Balikudembe Market, dealing in cereals. He has a stall. Defendant no.1 is the landlord. Between 1995 to 1998 the defendant no.1 told the stall owners to build concrete stalls and lock up shops after which agreements would be signed between them. This position was communicated to the vendors in writing by exhibit P1, a letter dated 6^th November 2002 written by the Town Clerk. Subsequently the defendant no.1 refused to give them the lease agreements for signature.

8. As a result of absence of agreements with defendant no.1 the stall owners operate with a lot of difficulties. They cannot access credit from banks as the banks ask for copies of the agreements that indicate they have stalls in which they operate, and they have not been given the agreements by defendant no.1. Secondly the defendants have brought in people and allowed them to operate in walkways and available parking space thus obstructing access to their stalls and these people deal in the same products as those with stalls.

9. PW1 is beseeching this court to order defendant no.1 to provide the agreements they promised. Secondly that the defendant no.1 removes people operating in parking spaces and walkways.

10. PW2 was Kisuze Kasasa Dan, 47 years old, and chairman of the ad hoc committee of the vendors leaders council, which is the parliament of Owino. He identified exhibit P1 and stated that the document is addressed to him by the Town Clerk. In cross examination he stated that he is being represented in this suit by the plaintiffs, and documents to that effect were with his lawyers. He knew the plaintiffs in this case. He stated that he has signed a tenancy agreement with defendant no.1. He stated that he has no grievance.

11. PW3 was Sophia Bumba, 32 year old vendor in St. Balikudembe Owino market. She rents an open space at shs.8,000.00 per month. And that was the close of the case for the Plaintiff.

12. DW1 was Francis Kakuru, 57 year old, and a principal legal officer of defendant no.1. He testified that he had been working with defendant no.1 for the last 17 years. He testified that the defendant no.1 decided to grant 15 year tenancies to vendors who had contributed to the building of the St. Balikudembe market. Whoever has a valid allocation letter and contributed to the construction was given the agreement. The agreements are still being given out even up to now to whoever is entitled to the same. St. Balikudembe was until recently ran by Victoria International but their contract was cancelled. He was not sure who was running the market now.

13. Counsel agreed upon 3 issues for trial. Firstly whether the claim was time barred? Secondly what was the relationship that existed between the defendants and the plaintiffs? And lastly what remedies were available to the parties?

Whether the claim is time barred?

14. In counsel’s address to the court, no mention was made of the first issue. I take it that it was abandoned.

What is the relationship between the parties?

15. It has been established by the testimony of both the plaintiffs’ witnesses and the defence witness that there was an agreement for the defendant no.1 to grant 15 year tenancy to vendors who constructed their stalls. Some of those vendors have already got these agreements, like PW2. PW2 has, in fact, no grievance.

16. All the plaintiffs in this matter did not testify. It has not been established, on their behalf by the witnesses who testified, that the 4 plaintiffs constructed the stalls in question. It has not been established what stalls, if any, they occupy in St. Balikudembe market. It has not been shown that the 4 plaintiffs demanded of defendant no.1 for the agreements in question, and the defendant no.1 refused to avail the agreements, as earlier on agreed. On the evidence before this court, the plaintiffs who bear the burden to prove their case on a balance of probability have not established any relationship with the defendant no.1.

What remedies are available to the parties?

17. I am left with no alternative but to dismiss this case as the plaintiffs have failed to prove their case. I decline to award costs to the defendant no.1. The defendant no.1 denied all allegations in the plaint in its defence, and at the trial adduced evidence that established, contrary to its defence, that 15 year agreements were promised to the vendors in St. Balikudembe market. The stance taken by defendant no.1 unnecessarily prolonged this matter, introducing into trial matters that need not have gone to trial.

FMS Egonda-Ntende

Judge