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Mwesigye and Others v City Council of Kampala and Another (HCT-00-CC-CS-0495-2005) [2008] UGCommC 16 (14 January 2008)
.RTF of original document
THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA
COMMERCIAL COURT DIVISION
HCT-00-CC-CS-0495-2005
Deus Mwesigye:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::Plaintiff No.1
Muzamiru Bumbakali:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::Plaintiff No.2
Robert Kalanzi:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: Plaintiff No.3
Ali Ssemwanga::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::Plaintiff No.4
For and On behalf of 307 others
Versus
City Council of Kampala::::::::::::::::::::::::::::::::::::::::::::::::::::::Defendant No.1
Victoria International Trading Co::::::::::::::::::::::::::::::::::::::::::Defendant No. 2
BEFORE: THE HONOURABLE MR JUSTICE FMS EGONDA-NTENDE
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 6th 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.
Signed, dated and delivered this 14th day of January 2008
FMS Egonda-Ntende
Judge
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