THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT MBARARA

CIVIL SUIT NO. 0109 OF 2011

ANNET ZIMBIHA:::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF

VERSUS

ATTORNEY GENERAL ::::::::::::::::::::::::::::::::::::: DEFENDANT

BRIEF FACTS

 Annet Zimbiha (hereinafter referred to as the “plaintiff”) brought this suit against the Attorney General of the Republic of Uganda (hereinafter referred to as the “defendant”) for conversion and trespass to land located at Rwamuranga Cell, Kajaaho Parish and Kikagati Sub- County in Isingiro District (hereinafter referred to as the “suit land”). The said suit land forms part of the late Elieza Zimbiha’s estate; of which the plaintiff is the administratrix. The suit land was taken over and has since 1964 been occupied and utilized by the Uganda Government which established a refugee settlement camp thereon called the Orukinga Settlement Camp. The Plaintiff seeks the following reliefs: a) A declaration that the late Zimbiha Elieza was the lawful owner of the suit land. b) An Order for vacant possession of the suit land by the Defendant and/or his agents. c) In the alternative an Order for payment of compensation of the value of the suit land at market value and for illegal occupation thereof as pleaded in paragraph 4(g) of the Plaint. d) General damages e) Exemplary damages f) Costs of the suit g) Interest on (c) above at 24% per annum from the date the cause of action arose till payment in full                                                     .

ISSUES                                                                                                                                                                                                                                                                               

(1) Whether the plaintiff is entitled to compensation for land in dispute; and if so, by how much.                                                                                                                                    

(2) Whether the plaintiff is entitled to mesne profits                                                                                                                                                                                                     

. (3) What rate of interest is applicable on (ii) above?                                                                                                                                                                                                      

(4) What other remedies are available to the parties?                                                                                                                                                                                                   

CIVIL LAW –CONVERSION AND TRESSPASS TO LAND BY THE DEFFENDANT                                                                                                                                                 

CASE LAW                                                                                                                                                                                                                                                                  

 Plaintiff’s suit is caught up by the doctrine of laches that embodies the Latin maxim; vigilantibus non dormientibus aequitas subvenit which simply means that: “equity aids the vigilant not those who slumber on their rights Cited an article by Elizabeth T. Kim entitled “To Bar or not bar?                                                                                                         

  The Application of the Doctrine against a Statutorily Mandated Filing Period.” (Published by UC Davis Law Review Vol. 43:1709), Equity follows the law. See James                   Semusambwa v. Rebecca Mulira, C.A.Civ.Appeal No.1 of 1999; Mark Xavier & A’ nor v. Stephen Aisu, Company Cause No. 27 of 2005. neglect to assert a right or claim which, taken together with the lapse of time and other relevant circumstances causing prejudice to the adverse party, would certainly operate as a bar in a court of equity. See Ex parte A.R Show, In Re Diamond Roch Bring Co Ltd. (1677) QBD 463; Boyes v. Guthure [1969] EA 385                                                                                                                            .

The neglect to enforce one’s right or claims for an unreasonable and unexplained length of time under for a party to relay on the doctrine of laches he or she must be prepared to demonstrate that no specific statutory limitation provisions to a cause exist, and that there exists an element of estoppels conduct on part of the plaintiff.                                         

Such element must manifest itself as inducement, misrepresentation, silence or acquiescence. See In Re Milton Obote Foundation and In Re an Application [1997] HCB 79. Where an issue has been settled by a court and no appeal lies, the parties cannot again be heard to call the issue to question and have it tried all over again by the same court any time thereafter.                                                                                                                                                                                                                                                         

Section 7 of the Civil Procedure Act, which encapsulates the doctrine of res judicata is instructive, and it states that: “No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and filially decided by such court.” In Kamunye v. Pioneer Assurance Ltd [1977] EA 263, Sheridan J (as he then was) put the test whether or not a suit is barred by res judicata in the following words (at page 265 of his judgment), the plea of res judicata applies not only to points upon which the first court was actually required to adjudicate but to every point which properly belonged to the subject of litigation and which the parties exercising reasonable diligence, might have brought forward at the time.. . Under Section 28 of the Evidence Act an admission by a party is not conclusive proof of a fact in issue, but it operates as estoppel. In addition, Section 57 of the Evidence Act is to the effect that facts admitted need not be proved, but that they are regarded as established. See Yusuf Ali Mohamed Osman v. DT Dobie & Co. (T) Ltd [1963] E.A. 288.                                       

The purpose and object of Scheduling Conference under Order 12 r. 2 Civil Procedure Rules are, inter alia, to expedite trials before court by enabling the parties to sort out points of agreements at the earliest, which are then not litigated upon; and issues for litigation – only upon which they may proceed at hearing. See Stanbic Bank (U) Ltd v. Uganda Cros Ltd, S.C.Civ.Appeal No. 04 of 2004(UR); Tororo Cement Co. Ltd. v. Frokina International Ltd., S.C.Civ. Appeal No.2 of 2001                                                                           

. It is emphasised that where evidence in chief by a party to proceedings is not challenged by the opposite party on a material or essential point either through cross-examination, or put in issue by the opposite party who had opportunity to do so, it leads to the inference that the evidence is accepted; and it is always open to the court seized with the matter to act upon such evidence before it. See Uganda Revenue Authority v. Stephen Mbosi, S.C.C.A No. 26 of 1995; James Serubiri & Fred Musisi v. Uganda, Criminal Appeal No. 5 of 1990                                                                                                                                                                                                                                                                              .

the case of George Kasedde Mukasa v. Emmanuel Wambedde & 4 Or’s HCCS No. 459 of 1998 to buttress this proposition                                                                                                                                    .

The position of the law on mesne profits is settled. Section 2(m) of the Civil Procedure Act (Cap. 71) defines mesne profits as: “…those profits which the person in wrongful             possession of the property actually received or might with ordinary diligence have received from it together with interest on those profits, but shall not include profits due to           improvements made by the person in wrongful possession”                                                                                                                                                                                          

. In the case of George Kasedde Mukasa v. Emmanuel Wambedde Or’s (supra), Mukiibi J. stated, and correctly so in my view, as follows                                                                 

: “It is settled that wrongful possession of the defendant is the very Essence of a claim for mesne profits. See Paul Kalule v. Losira Nonozi [1974] HCB 202 (SAIED, J as he then was)… The usual practice is to claim for mesne profits until possession is delivered up, the court having power to asses them down to the date when possession is actually given. In Elliott v. Boynton [1924] I Ch. 236 (C.A) Warrington, L.J, at page 250 said                                                                                                                                                             

: “Now damages by way of mesne profits are awarded in cases where the Defendant has wrongfully withheld possession of the land from the Plaintiff                                             

.” The Learned Judge went on to state that in Clifton Securities Ltd. v. Huntley & Or’s [1948] 2 All E.R 283 at p. 284, Denning J, raised and answered the question:                      

“At what rate are the mesne profits to be assessed? When the rent represents the fair value of the premises, mesne profits are assessed at the amount of the rent, but, if the real value is higher than the rent, then the mesne profits must be assessed at the higher value.”                                                                                                                                    \

The case of Kananura Joseph& Or’s v. Mbarara District Local Government & Or’s, H.C Civil Suit No. 98 of 2008, where this court took into Account the economic realities, and guided by the borrowing and lending bank rate, considered interest rate of 25% per annum reasonable                                                                                                                 

. The position of the law on this point under Section 26(2) of the Civil Procedure Act (supra) is that court is vested with the discretion to grant interest at such rate as it deems reasonable.                                                                                                                                                                                                                                                            

The settled position is that the award of general damages is in the discretion of court, and is always as the law will presume to be the natural and probable consequence of the defendant’s act or omission. See James Fredrick Nsubuga v. Attorney General, H.C.C.S No. 13 of 1993 Erukan Kuwe v.Isaac Patrick Matovu & A’nor H.C.C.S. No. 177 of 2003 per Tuhaise J.                                                                                                                                                                                                                                                               

in the assessment of the quantum of damages, courts have mainly been guided by the value of the subject matter, the economic inconvenience that a party may have been put through and the nature and extent of the breach. See Uganda Commercial Band v. Kigozi [2002] 1 EA. 305                                                                                                          .

A plaintiff who suffers damage due to the wrongful act of the defendant must be put in the position he or she would have been in had she or he not suffered the wrong. See Charles Acire v. Myaana Engola, H.C.C.S No. 143 of 1993; Kibimba Rice Ltd. v. Umar Salim, S.C.C.A. No.17 of 1992.                                                                                           

Discretions it must be exercised judiciously taking into account all circumstances of the case. See Liska Ltd.v.De Angelis[1969] E.A 6;National Pharmacy Ltd v. KCC [1979] HCB 256, Superior Construction & Engineering Ltd v. Notay Engineering Ltd. HCCS No. 24 of 1992.                                                                                                                               

Also, Section 26 CPA (supra) is to the effect that where interest was not prior agreed as between the parties’ court could award interest that is just and reasonable. See also Mark Extraction Enterprises Ltd. v. M/s Nalongo Orphanage, H.C.C.S No. 04 0f 1996.                                                                                                                                                       

On the issue of costs, the law under Section 27(2) CPA (supra) is that costs are awarded at the discretion of court and follow the event, unless for some reasons court directs otherwise. See Jennifer Rwanyindo Aurelia & A’nor v. School Outfitters (U) Ltd., C.A.CA No.53 of 1999; National Pharmacy Ltd. v.Kampala City Council [1979] HCB25.                   HOLDING .

In the instant case, the plaintiff has succeeded on all the issues, and there is no compelling and justifiable reason to deny her the costs. The plaintiff is accordingly awarded costs of this suit