Thalion International Ltd v Vivo Energy Uganda Ltd (Civil Appeal No. 18 of 2022) [2025] UGSC 25 (10 July 2025)

THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA Coram: Tuhaise, Musoke, Musota, Madrama €t Bamugemereire, llSC CIVIL APPEAL NO.18 OF 2022 THALION INTERNATIONAL LTD APPELLANT VERSUS VIVO ENERGY UGANDA LTD RESPONDENT Iudement of Perc v Nieht Tuhais e,ISC I have had the benefit of reading in draft the Judgment prepared by *y learned brother, Stephen Musota, ISC. I concur with his analysis, decision, conclusions and the orders he has proposed. Decision of Court Since three members of the Coram, that is, Tuhaise JSC, Madrama JSC, and Bamugemereire JSC, concur with the lead judgment, and one member of the Coram, Musoke fSC, partially agrees, this appeal is hereby allowed with the orders contained in the lead judgment. 2025. Percy Night Tuhaise ]ustice of the Supreme Court (Appenl agninst the decision of the Court of Appenl in Ciuil Appeal No. 107 of201Z before Kirynbtoire and Mugenyi, JJA and Kasule, Ag. lA dtlittered on 20tt, December,2021) Dated at Kampala, this ... ....t.g.fr.... auy or.....il.il.V........... .CI.t***,*& / THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA CIVIL APPEAL NO. 18 OF 2022 THALION INTERNATIONAL LTD: : : : : : : : : : : : : : : : : : : : : : : : : : : :APPELLANT VERSUS VIVO ENERGY UGANDA LTD :::::::::RESPONDENT (Appeal from the decision of the Court of Appeal (Kiryabwire and Mugenyi, llA and Kasule, Ag. JA) in Civil Appeal No. 107 of 2017 dated 2Oh December, 2021) CORAM: HON. LADY. JUSTICE PERCY NIGHTTUHAISE, JSC HON. LADY JUSTICE ELIZABETH MUSOKE, JSC HON. MR. JUSTICE STEPHEN MUSOTA, JSC HON. MR. ]USTICE CHRISTOPHER MADRAMA IZAMA, JSC HON. LADY JUSTICE CATHERINE BAMUGEMEREIRE, JSC JUDGMENT OF ELI BETH MUSOKE, JSC I have had the advantage of reading the judgment of my learned brother Musota, lSC. I am grateful to my learned brother for setting out the facts, the grounds of the appeal and the cross appeal and the submissions of the respective counsel, which material I adopt. I have written this judgment to briefly set out my views and conclusions in regard to the appeal and cross appeal. I wish to note at the outset that the present pafties, Thalion International Ltd (appellant) and Vivo Energy Uganda Ltd (respondent) were respectively substituted for Mercator Enterprises Ltd and Shell Uganda Ltd, the parties in the Court of Appeal, by order of thls Court dated 16th )une, 2022. In relation to the applicability of Sections 72 and 74 of the Civil Procedure Act to appeals to this Couft, my view is that those provislons are not applicable. This position has been confirmed in this Court's recent decision of Kateeba Rose and 3 Others vs. Mugyenzi Justus and 2 Others, Civil Appeal No. 1O of 2O23. Consequently, civil appeals to this Court can 1 be preferred on points of mixed law and fact as well as on points of law pursuant to Section 6 (1) of the Judicature Act, Cap, 16 and Rule 30 (1) of the Rules of this Couft. In respect to the cross-appeal, I agree with Musota, ISC that the Court of Appeal was correct in finding that the suit properlry was not expropriated propefi withln the meaning of the relevant expropriation laws. In my view, property can only be deemed to be expropriated property if, in fact, it was taken over and managed by the Government. This was not the case with the suit property. Moreover, at all material times when the expropriation laws were in force, the respondent was the legal owner of the suit property, and since the respondent was not affected by the expropriation decrees, the suit propety was not liable for expropriation unless the respondent had handed over the property to the Government for expropriation which was not the case. The evidence shows that the respondent managed the suit property while the exproprlation laws were in force and occasionally collected rent therefrom. Therefore, I would dismiss grounds 1,2 and 3 of the cross appeal. In relation to the appeal, I note that grounds l, 2,3,4 and 5 of the appeal are concerned with the Couft of Appeal's award of compensation arising from the respondent's unlawful possession of the suit land between 1972 and 2001, during which time, the respondent at times let out the suit property and collected rent, Ground 6 concerns the Coutt of Appeal's award of general damages. I will discuss grounds L,2,3,4 and 5 jointly, and thereafter handle ground 6 independently. Grounds t,2,3,4 and 5 I will begin by summarizing the relevant factual background. In 1972, a company known as Husenali Nathu Ltd (HNL) and another known as Shell and BP Uganda Ltd (Shell BP) entered into a contract for the development of a piece of land then known as Plot 49 South Street, Kampala owned by Shell BP. It was agreed that HNL would construct, on the suit land, a building with three floors. The ground floor would have a fuel station and the two upper floors would have office units. In consideration, it was agreed that 2 Shell BP would transfer ownership of the sult land to HNL's nominees who would thereafter permit Shell BP to run a fuel station on the ground floor. For this purpose, HNL was expected to sub-lease the ground floor to Shell BP. HNL was entitled to possession of the office units immediately after completion of the development. HNL duly executed its obligations and handed over the ground floor to Shell BP on 22nd September, 1972. Thereafter, Shell BP commenced the process of transferring the suit property to HNL. However, this process couldn't be completed due to the Idi Amin Government's decision to enact laws expelling non-citizen persons of Asian descent from the country. All of HNL's nominees were of Asian descent and although they were citizens, they departed the country during the Asian exodus. Therefore, the transfer of the suit land could not be effected. Between t972 and 1990, HNL's nominees lived outside Uganda. During that time, Shell BP continued occupying the suit land. In addition to operating a fuel station on the ground floor, Shell BP, on certain occasions, let out the office space on the two upper floors to tenants from whom it collected rent. The number of tenants and the amount of rent during this period have been contested throughout the litigation. Between 1989 and 1990, Mr, Amirali H. Nathu, one of HNL's nominees returned to Uganda and approached Shell (Uganda) Ltd (Shell) the successor to Shell BP seeking to obtain payment of the rent collected between 1972 and 1990. He also sought the completion of the transfer of the suit land from Shell. He did not receive any positive outcome despite negotiations that lasted until 1993. Therefore, in 1993, HNL's nominees who included Mr. Amirali and 4 others, filed a suit against Shell in the High Couft seeking to compel it to account for the rent collected and also to make a transfer of the suit land. Shell filed a Written Statement of Defence denying liability to account for rent or to transfer the suit land. In 2001, Shell agreed to consent to part of the nominees' claim in that it agreed to transfer the suit land to them. This agreement was recorded in a 3 4 consent order issued by the High Court dated 18th May, 2001. In that consent order, the issue of accounting for rent was noted but was left to be agreed upon by the parties and if they failed to reach an agreement, to be determined by the Court. The suit land was transferred to HNL's nominees on 15th June, 2001. Subsequently, Shell also surrendered possession of the upper floors to HNL's nominees on 19thJanuary,2002. As for accounting for rent, although the parties attempted negotiations as envisaged in the consent order, they did not reach any agreement in that regard. In 2006, HNL's nominees assigned their interests in the litigation to a company known as Mercator Enterprises Ltd (MEL). MEL instltuted Miscellaneous Application 833 of 2006 in the High Court seeking to recover rent and mesne profits from Shell. MEL tendered in evidence valuation reports setting out estimations of the outstanding rent. Shell also tendered in evidence rival reports setting out their own valuations, The appellant produced expert evidence comprised in the respectlve valuation reports of two valuation experts, namely, C.P Robertson Dunn (one report accompanying his affidavit of 14th July, 2006 at pages ll2to 145, volume 2 of the record of appeal) and Richard Ivan Mungati (two reports, the first accompanying his affidavit dated 9th September,2006 at page 154 to 168, volume 2 of the Record of Appeal, and the second report accompanying his affidavit dated 14th November, 2008 at pages 474 to 491, Volume 4 of the record of Appeal). The respondent also produced expert evidence to counter that of the appellant, contained in the respective valuation reports of Allied Property Surueyors at pages 187 to 200, volume 2 of the Record of Appeal and the report by Mungereza and Kariisa at pages 201 to 215, Volume 2 of the Record of Appeal. It must be stated that the Court of Appeal rejected the valuations arrived at by the appellant's experts and accepted the valuations in the Allied Propety Surveyors' report tendered by the respondent. The gist of grounds t,2,3,4 and 5 of the appeal is that the Court of Appeal erred in dolng so. I will begin with a discussion of the relevant principles regarding expert evidence which is at the heart of the appellant's submissions on grounds 1, 2, 3, 4 and 5. I observe that that the role of an expert is to assist the court in relation to matters of scientific, technical or other specialised knowledge which are outside the judge's expertise by giving evidence of fact or opinion; but the expert must not usurp the functions of the judge as the ultimate decision-maker on matters that are central to the outcome of the case. See: UK Supreme Court Judgment in Griffiths vs. TUI UK Ltd [2023] UKSC 48 at para 36. In Dhalay vs. Republic [1995-98] I EA 29, the Court stated that while the coufts must give proper respect to the opinions of experts, such opinions are not, as it were, binding on the courts and the courts must accept them. Such evidence must be considered along with all other available evidence and if there is proper and cogent basis for rejecting the expert opinion, a court would be perfectly entitled to do so. In the Griffiths case (supra), it was further stated that as a general rule, the judge has the task of assessing the evidence of an expert for its adequacy and persuaslveness. In Davie vs. City of Edinburgh 1953 S.C. 34, the court rejected expert evidence it considered to be "insufficiently vouched, unconvincing and insufficient to displace the inference arising from the remaining evidence in the case," Therefore, in the vlew of the principles laid down in the above-mentioned cases, lt is clear that the Court is expected to evaluate expert evidence and consider what weight to attach to it, if at all. In this regard, the Court will consider the soundness ofthe reasoning contained in the report and whether it considers all or overlooks any relevant factors. In this case, the Court of Appeal ldentified certain flaws and deficiencies in the reports of the appellant's experts and rejected them. Many of these flaws have been stressed in the submissions of counsel for the respondent. It is noted that the flaws affect both the Robertson and Mungati Repofts because they contain similar reasonlng. These flaws can be categorized as follows: Firstly, and as noted by the Court of Appeal, the computation in the respective reports is based on US Dollars yet the rent for the suit premises 5 was both payable and actually paid in Uganda Shillings. Secondly, and as correctly found by the Court of Appeal, the Mungati Repoft does not consider several factors. It does not consider the effect of the currency reform of 1987 (although this can be disregarded), does not cater for management fees incurred in managing and maintenance of the suit premises, and does not consider the location and nature of the suit premises and how they contribute to its value for purposes of determining rent payable, Thirdly, and though neither picked up by the Court of Appeal nor counsel for the respondent, the Mungati Report does not distinguish between the varying incidents of liability, namely, for the 1972-1990 period when the respondent was a trustee liable to account only for rent it actually received, and for the post 1990 period when the respondent was a trespasser liable to pay mesne profits calculated as reasonable rent payable. Fourthly, the second Mungati Report wrongly applied compound interest in arriving at the sum due to the appellant. I will turn to briefly consider the above-identified flaws. First, the Court of Appeal found that the computation in the appellant's respective reports was erroneously based on the dollar. In his affidavit, Robertson admitted that he based his computation on dollars. He stated: "Although my final results are expressed in US Dollars, I performed my analysis using both Ugandan Shillings and US Dollars. It is not possible to use Uganda Shillings alone and arrive at a reliable result because many of the required data are missang or unreliable and because the large fluctuations in the stability of the current render the result suspect. Since local factors are of course pertinent, I have used Uganda Shillings to account for them, but have also used US Dollars to make the resulting figures more accurate, This approach, moreover, is realistic given that commercial practice is to peg rents to the US Dollar." However, perusal of the Robeftson report shows that his computation involved converting the rent amounts proven to have been paid in Uganda Shillings into US Dollars. This was the same approach taken in the first Mungati Report on which the second Mungati Report was based. In an 6 excerpt from the first Mungati Report at page 157, volume 2 of the Record of Appeal, it was written: "5.2 Rents assessment We evaluated rents for principles of valuation, parameters. the upper floors by applying recognized accounting and finance on the following 1. Our starting point for the evaluation was an actual sub-lease over the upper floors granted by Shetl Uganda to one Tamukedde. This sub-lease ran from 1st December, L972 to 30th November, 1978 and was on registered title. We obtained copy thereof. 2.The Tamukedde sub-lease provided for annual rents in the amount of U.shs.48,000/= payable quarterly in advance. Accordingly, we have an actual commercial rent for our starting point (approximately USD 6,700 per annum at the exchange rates then prevailing' We have used this figure from the start of our period to the end of L978." According to a summary in the appendix to this report at page 165 to t67, Volume 2, the computation throughout the entire period Involved converting the collected/projected rental figures from Ug. Shillings to the US Dollars. Thls approach was criticized in the Allied Surveyors Report. In an excerpt of the report at page 193, Volume 2 of the Record of Appeal, it is stated: "The effect of inflation on renta! values, as outlined by the plaintiffs' valuers concentrates on the mathematics completely ignoring the fact that effective demand for offices during the period was relatively low indeed as already pointed out, Adopting the 1974 Tamukedde Rental, converting into US Dollars and progressively increasing it each year based in the (US) rate of inflation assumes an ideal situation which is atificial more so when one claims that Ugandan factors do not apply' There was no "revision clause" or a "variation clause" in the Tamukedde agreement to convett the rental into dollars. In effect, that would have left the rental floating." I further noted that the proposed amount of compensation that was set out in the appellant's pleadings was also expressed in US Dollars. The appellant pleaded, in its Notice of Motion, that it sought judgment: 7 "Directing the defendant/respondent to forthwith pay over to the plaintiff/applicant the sum of USO 2,629,722.00 (Two Million Six Hundred Twenty-Nine Thousand Seven Hundred Twenty-Two Dollars), the said sum comprising: a) The quantum for rents and mesne profits for the "upper floors" of the suit property; b) Plus Interest thereon up to 31 December, 2006. c) Less the sum due to the defendant/ respondent by way of set-off, under a certain agreed mo*gage currently registered on title to the suit property." It is therefore clear that the computation in the appellant's valuation reports was based on US Dollars, which was wrong in the circumstances of this case. During the period between 1973 and 1990, the respondent was liable as a trustee and was bound to account only for the rent it actually received. The actual figures collected during this period were in Uganda Shillings, as set out in the Allied Properly Surveyors Report. During the post 1990 period, the respondent transformed from a trustee to a trespasser, since the former had ignored the request of the appellant's predecessors to vacate the suit premises. As a trespasser, the respondent was liable to pay mesne profits which are usually assessed to represent the reasonable rental value. Nonetheless, the evidence shows that rent continued to be paid in Uganda Shillings even during this period, and thus any reasonable rent ought to have been computed in Uganda Shillings. The second flaw affecting the appellant's valuation reports is that they ignored some relevant factors, such as, the location of the suit property. The Allied Survey Report tendered for the respondent properly described the location of the suit property as well as the nature of the property and how these affected its value. In an excerpt from thls report from page 189, Volume 2 of the Record of Appeal, it was written as follows: "The location of the premises is in the bustling main commercial/commodity trading area of Kampala close to the transport terminals (taxis and buses). [t is, therefore, not suitable or an "excellent 8 location" for offices. This is further aggravated by the excessive noise, lack of easy access due to both heavy human and motor vehicle traffic as well as lack of packing space. It is noted that the subject propefi has a parking lot accessible from virtually permanently blocked (north end) side alley off South Street thus serving no useful purpose to would be prospective tenants. It is a fact that as business improved in the area so did the congestion and noise." I note that the suit property is not situated in a prime neighbourhood but is closer to down-town Kampala, which is a less prime location. This goes to the value of the suit land and affects the rent that could reasonably charged for letting it out. This factor was not taken into account in the appellant's reports. The thlrd flaw in the appellants'valuation repofts is the failure to dlstinguish between the different types of the respondent's liability, that is, during the 1972-1990 period when the respondent was a constructive trustee liable to account for profits received, and during the post 1990 period when the respondent was a trespasser liable to pay mesne profits representing the ordinary letting value of the suit propefi. I note that a constructlve trust arises by operation of law whenever the circumstances are such that it would be unconscionable for the owner of property (usually but not necessarily the legal estate) to assert his own beneficial interest in the property and deny the beneficial interest of another. (See: Paragon Finance plc vs. DB Thakerar & Co (a firm) [1999] 1 All ER 4O0 at 4O9). In the present case, although Shell was the legal owner of the sult property between L972 and 1990, it will be noted that it was under an obligation to effect a transfer of the suit property to the appellant's predecessors in title, and the failure to effect the said transfer due to their depafture meant that although Shell remained the legal owner of the suit property, the appellant's predecessors were the beneficial owners. Therefore, in the circumstances, there arose a constructive trust with the appellant as beneficial owner of the suit propefi and the respondent as trustee. I note that, on certain occasions, during the 1972 - 1990 period, the respondent let out the suit property. I further note that the remedy 9 available against a trustee who acts in breach of trust is an account for profits, which imposes an obligation on the trustee to effect restitution, that is, return any profits made to the beneficiaries. In the present case, for the period between 1972 - 1990, the respondent is expected to account for the rent collected. As for the period after 1990, it will be noted that the respondent had been asked to effect a transfer to the appellant's predecessors and vacate the suit property but it wrongfully refused and continued in possession thereof thereby making it a trespasser. A trespasser in wrongful possession of propefi is llable to pay mesne profits measured by taking into account, "the ordinary letting value of the property." See: Inverugie fnvestments Ltd v Hackett [1995] 3 ALLER 841 at 845 where it is stated: "..,a person who lets out goods on hire, or the landlord of residential property, can recover damages from a trespasser who has wrongfully used his property whether or not he can show that he would have let the property to anybody else, and whether or not he would have used the property himself. The point is well expressed by Megaw Lt in Swordheath Properties Ltd v Tabet [f979] 1 All ER 24O at242, [1979] 1 WLR 285 at 288 as follows: 'It appears to me to be clear, both as a matter of principle and of authority, that in a case of this sort the plaintiff, when he has established that the defendant has remained on as a trespasser in residential property, is entitled, without bringing evidence that he could or would have let the property to someone else in the absence ofthe trespassing defendant, to have as damages for the trespass the value of the property as it would fairly be calculated; and, in the absence of anything special in the particular case it would be the ordinary letting value of the propefi that would determine the amount of damages." A further flaw affecting only the second Mungati Valuation report, is the erroneous application of compound interest. According to the affidavit of 14th November, 2008 at page 473, volume 4 of the record of appeal, Mungati stated that in arriving at his computation, he applied a compound interest of 20olo basing on the Court of Appeal decision of Ghelani vs. Patel, Civil Appeal No. 56 of 2OO4 which, according to advlce he had received from 10 the appellant's lawyers, applied in the present case. The facts of that case were that the defendant lodged a complaint, with the police, against the plaintiff over default over an alleged debt of USD 180,000, leading to the arrest of the plaintiff. While in custody, the plaintiff requested to be released to seek medical attention but he was only released upon paying USD 25,000 which was part of the alleged debt to the defendant. The plaintiff subsequently instituted proceedlngs in the High Couft alleging that he did not owe the alleged debt to the defendant. The High Court found in his favour and ordered for restitutlon of the USD 25,000 to the plaintiff with interest of 20o/o per annum compounded annually, The defendant appealed to the Court of Appeal but his appeal was dismissed. As the facts show, the award of interest was made by the Court, as is usually the case. The case dld not therefore set out any rule of general application such as was claimed in Mungati's second report. It therefore follows that the application of compound interest leading to the award was erroneous. In my view, such an award may only be made by the Court. All in all, it is my view, that the Court of Appeal rightly rejected the appellant's valuation reports because, as shown in the above analysis, the reports were flawed in several respects. Be that as it may, it is also my view, that the Allied Surveyor's Repoft relied on by the respondents was equally flawed in some respects making it unsafe to accept it wholly as the Court of Appeal dld. For example, in computing the rent Mr. A.S. Babumba Keyune, the author of the report deducted 20o/o for voids and 20o/o for outgoings. However, the author of the report was not called as a witness at the trial and therefore, the basis of these deductions was not satisfactorily explained. In additlon, as I noted earlier, in the post- 1990, the Shell occupied the suit land as a trespasser having refused to vacate when requested to do so. As a trespasser, Shell was liable to pay mesneproftls representing the ordinary letting value and not what lt actually received. However, this distinction was not applied in the Allied Surveyors Report. This brings me to the next question of what should be the best approach for arriving at a fair and just amount of compensation in this case? In answering 11 this question, I note that as stated earlier, expeft valuation evidence is not binding and the Couft retains the final decision on the matter covered in such evidence. In Serg Belland Anothervs. Ratna Singh and Another l2022l EWHC 3272 (Comm), it was stated that the Court has wide discretion in assessing expert evidence and may substitute a different valuation for the one arrived at by the expert. In my view, this is a suitable case to substitute another valuation for the one of experts which contains many flaws. However, it is further my view, that any well-founded factual information contained in the respective experts' reports can be relied upon by the Court in arriving at its decision. In assessing the appropriate compensation in this case, I would take into account the fact that the respondent occupied the suit property from 1972 to 2001 when it eventually vacated the suit property, as a trustee between 1972 and 1990 and as a trespasser between 1990 and 2001 during which period the respondent collected rent for which it was liable to account, The respondent wrongly denied liability to make any such account when the appellant's predecessor approached it in 1990. The respondent refused to vacate the suit premises when requested to do so, and between 1990 and 2001 occupied the same as a trespasser. The respondent's actions led to the appellant's predecessors filing a couft case, and although the respondent eventually agreed to compromise paft of the suit, it refused to reach an agreement as to compensation arising from the rent it collected from the suit property. As a result, the appellant has endured litigation for over 30 years. However, I am also cognizant of the location and nature of the suit premises. The suit premises were intended to contain office space but are relatively small and contain only hvo floors. They are also not located in a prime location, and have limited parking space. In view of those circumstances, the ordinary letting value of the suit premises cannot be as high as suggested by the appellant's valuation experts. After considering, all the relevant circumstances, I would assess the adequate compensation to the appellant at Ug. Shs. 500,000,000/-. I would award interest at 25% per annum on 1,2 that amount to be computed from the date of the decision of the High Coutt on 15thJuly, 2016 until payment in full. Ground 6 The complaint in ground 6 is that the Court of Appeal did not award an appropriate amount of general damages commensurate with the improper conduct of the respondent of refusing to properly and honestly meet its liability resulting in lengthy litigatlon. However, in his submlssions, counsel for the appellant argued that the respondent's conduct justified the award of aggravated damages. In reply, counsel for the respondent submitted that aggravated damages are based on different principles from general damages, such as was awarded by the Court of Appeal, and that it was inappropriate to award aggravated damages in the present case. It is trite law that an appellate Court will only interfere with an award of damages only if it was based on a wrong principle or if the amount awarded is so high or so low so as to make it an entirely erroneous estimate of damages to which the plaintiff was entitled. (See: Crown Beverages vs. Sendu Edwards, Supreme Coutt Civil Appeal No. 1 of 2OO5 (unreported) per Oder, JSC). It is also well-established that general damages concern non-pecuniary loss suffered by a plaintiff due to a wrong committed by the defendant, and include pain and suffering and loss of amenity. It is also well-established that the plaintiff has the burden of adducing material facts to support his/her clalm for material loss. See: Halsbury's Laws of England/Damages (Volume f2(1) (Reissue)) at paragraph 880. On the other hand, aggravated damages are awarded on princlples that were well-summarised in UK Law Commisslon's Report on Aggravated, Exemplary and Restitutionary Damages (L997), as follows: "Although the precise meaning and function of aggravated damages is unclear, the best view, in accordance with Lord Devlin's authoritative analysis in Rookes v Barnard appears to be that thev are damages awarded for a tort as compensation for the plaintiff's mental distress, where the manner in which the defendant has committed the tort, or his 13 motives in so doino, or his conduct subseouent to the tort has uDset or outraged the plaantiff. Such conduct nor motive 'aggravates'the iniurv done to the olaintiff and therefore warrants a greater or additional sum." Furthermore, a plaintift is required to plead the type of damages he seeks and the factual basis on whlch his/her claim is based. This point was made at paragraph 685 of Halsbury's Laws of England Defamation (Volume 32 (2023)): ",..where the injury to the claimant has been aggravated by the conduct of the defendant, the claimant may claim aggravated damages. Such damages are part of, or included in, the sum awarded as genera! damage and are, therefore, at large, Where a claimant seeks aggravated damages he must he must include in the particulars of claim a statement to that effect and the grounds for claiming such damages," In the present case, the appellant did not plead aggravated damages or even general damages in his application. Furthermore, he did not set out the factual basis in support of a claim for general damages. It is only now on second appeal that the appellant seeks to make a case for being awarded general damages. This cannot be sustained. Accordingly, I do not find any basis for enhancing the award of damages made by the Court of Appeal. Instead, it is easier to find reasons for questioning whether general damages should have been awarded at all since they were not pleaded. However, since there was no cross appeal on this point, I need not decide it. Accordingly, I would differ from Musota, JSC's conclusions and find that ground 6 fails. In respect to counsel for the appellant's prayer for a certificate of two counsel, I agree with the relevant principles set out in the case of Pollock vs. Nairobi Wholesalers Ltd [1972] L EA 172 which was cited by counsel for the respondent where the Court stated: "We should like to say that neither the fact that both sides happened to be represented by two advocates, nor the fact that one or both sides regard it as a matter of importance, nor the fact that the other side accepts the application for a certificate for two advocates, are conclusive. The determination by this Court whether the case is a fit one 14 for a certificate for two advocates must be dependent upon the appreciation by the Court of the nature of the application' In this case we have no doubt whatsoever in saying that this is not a fit case for a certificate for two counsel and therefore no certificate will be granted." In my assessment, this was an ordinary appeal and it is not necessary to award a certificate oFtvvo counsel. Therefore, while I find that the appellant is entitled to costs of the appeal and the cross appeal, I would not grant a certificate for two counsel. For all the above reasons, I would allow the appeal in part and dismiss the cross appeal and make the following orders: a) The appellant is awarded Ug. Shs. 500,000,000/= ?s corTlP€nsation arising from the respondent's occupation of the suit land from 1972 to 2001. b) The amount awarded in (a) shall attract interest at25o/o per annum to be computed from the date of the decision of the High Court on 15th July, 2016 untll payment in full. c) The Couft of Appeal's award of general damages of Ug. Shs. 50,000,000/- to the appellant with interest of 9olo from the date of the judgment of the High Court on 15th July, 2016 until payment in full ls upheld. d) The appellant shall be paid the costs of the appeal and those of the cross appeal. e) The appellant shall be paid the costs in the Couft of Appeal and in the day of.... 2025. Elizabeth Musoke lustice of the Supreme Court 15 High Court. Dated at Kampala this THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT I{AMPALA CIVIL APPEAL NO.18 OF 2022 (Arlstng from,Iudgmcnt of the Court of Appeal tn Civll Appeal No.7O7 of 2O77; Klryabwlre, Mugengfl, ,trIA and Kq.sule Ag. JA; delhtered on 2Ah Decemher, 2021) THALION INTERNATIONAL LIMITED APPELLANT VERSUS VTVO ENERGY UGANDA LIMITED: : : : : : : : : : : : : : : : : : : : : : : : :RESPONDENT t0 CORAM: TTIIIAISE; MUSOI{E; BAMUGEIIIEREIRE J,SC. JUDGMENT OF HON. WSTICE STEPHEN MUSOTA, JSC rs Background ofthe Appeal Amirali H. Nathu, Hussein Hasana-Ii Nathu, Sadrudin Abdwlaziz G. Nathu and Taudin Abdulaziz G. Nathu and Sherbanu Husenali Nathu (an administrator of the estate of Hussenali Nathu), as 1"t, 2d, 3'd, 4th and 5th plaintiffs respectively, through their lawful Attorney Amirali H. Nathu (The 1"t Plaintiff), lodged High Court Civil Suit No. 614 of 1993 in the High Court of Uganda at Kampala by way of ordinary plaint against Shell Uganda Limited. Page 1 of 91 MUSOTA; MADRAIIIA; 20 ) The background of the suit was that Messrs Hasanali Nathu Limited entered into an agreement wit-h Messrs. Shell and B.P Uganda Limited and the agreement was evidenced in three documents the lirst being an agreement dated 17th July,l972, the second, a sublease and the third a mortgage stamped September 29'h, 1972. The terms of the agreement were that: - Hasanali Nathu Limited Constructs a building, according to specifications required oru the suit land belonging to Shell and BP (U)LTD: Upon completion of the ground JToor and obtaining an occupation permit thereof, the suit propertA would be transfened to Hasanali Nathu Limited or its nominees for a nominal sum, bg Shell and BP.Uganda Ltd's predecessor who was the Registered Propietor thereof at the materiql time: and, Hasanali Nathu Limited, subject to the terms of the sublease, would then lea,se the ground Jloor of the suit land which was to compise of a seruice station as a portion of the deuelopment to Shell and BP. Uganda Limited and pursuant to the terms of the said mortgage, effect a mortgage of the entire suit land to Shell Uganda Limited. l0 lt 15 l1l 20 l5 In or around September, 1972 Hasanali Nathu Limited performed the contract as per its terms and as varied by mutual agreement of the parties by completing the ground floor and obtaining an occupation permit thereof and handing the same to Shell Uganda Limited. In light of the foregoing Shell Uganda Limited was in Page 2 of 91 5 accordance with the terms of the Contract under an obligation to transfer the suit land to Hasanali Nathu Limited or its nominees, lodge the transfer documents for registration and bear a-ll the fees and disbursements in connection therewith. Hasanali Nathu Limited appointed the plaintiffs as its nominees for purposes of the said transfer and indicated this to Shell Uganda Limited whereupon Shell Uganda Limited became bound to transfer the suit property to the plaintiffs as nominees. In pursuance of the said contract Shell Uganda Limited executed a transfer of the suit land into the narnes of the plaintiffs. Shell Uganda Limited also applied for and obtained consent under the Public Land Act to transfer the property into the names of the plaintiffs. Further, stamp duty for the executed transfer was paid by Shell Uganda Limited and as a result the plaintiffs effectively became owners of the suit land or beneficiaries of the proprietary rights in the suit land which rights accrued as a consequence of the legal relationships aforementioned, between Hasanali Nathu Limited and Shell Uganda Limited. The plaintiffs acquired proprietary rights to the suit land by way of assignment of those rights from Hasanali Nathu Limited, which rights had accrued in consequence of the legal relationship aJorementioned between Hasanali Nathu Limited and Shell Uganda Limited. Subsequent to the above, Shell Uganda Limited did not lodge for registration, the transfer documents in respect of the suit land and this denied the plaintiffs the rights over the suit land. Between Page 3 of 91 t0 l5 20 25 1972 and 1990 Shell Uganda Limited as successor to Shell and B.P Uganda Ltd on several occasions acknowledged that the plaintiffs were the owners of the suit land. Specifically, this was done; 1. Bg letter dated 26t' Febntary, 1973 where Shell and B.P Uganda Ltd as predecessor to Shell Uganda Limited recognized its obligations and indicated that it utould discharge the same. 2. By letter dated 3'd Nouember, 1981 where Shell and B.P Uganda Ltd's Managing Director as predecessor to Shell Uganda Limited admitted that an obligation to the plaintiffs existed in respect of the suit land. 3. Bg diuerse uerbal assurances giuen to uaious of the plaintiffs' representatiues between 1973 and 1990 that Shell Uganda Limited was obliged to surrender the propertg to the Plaintiffs or paA compensation in lieu thereof. 4. By some of the correspondence acknou)ledging the plaintiffs' ights but expressing Shell Uganda Limited's inabilitg to perfonn its obligations due to uncertainty caused bg the expulsion of Asians in 1972 and the laws enacted in consequence thereof. In 1993 Amirali H. Nathu, Hussein Hasanali Nathu, Sadrudin Abdulaziz G. Nathu and Taudin Abdulaziz G. Nathu and Sherbanu Husenali Nathu (an administrator of the estate of Hussena-li Nathu), as 1"t, 2"d, 3'd, 4th and 5th plaintiff respectively, through their lawful Attorney Amirali H. Nathu (The 1"t Plaintiff), lodged High Court Civil Suit No. 614 of 1993 in the High Court of Uganda at Kampa-la by way of ordinary plaint against Shell Uganda Limited. The 3'd, 4'h t0 l0 :5 Page 4 of 91 t5 and Sth Plaintiffs brought the suit through their lawfully appointed Attorney Amirali H. Nathu who was also the l"t Plaintiff. The Sth Plaintiff is the Administratrix of the Estate of Husenali Nathu (Deceased) who was, together with the other plaintiffs, nominee for purposes of transfer of the suit property to the plaintiffs. On 11'h September 1993 the plaintiffs lodged an amended plaint where it was stated in paragraph 2 tbat; "2. (a)The Plaintiffs bring this suif as beneficial owners of the propertg the subjed matter of the suit and are seeking to enforce their proprietary and possessory rights to the propertg. (b) Alternatiuelg, this suit is brought bg the plaintiffs as beneficiaries of propertg ights held in trust for them or as assignees thereof." In paragraph 4 of the amended Plaint, it was stated that; o4. The plaintiffs' claim against the Defendant is for the following reliefs:- (a)declaration that the Plaintiffs are the nghtful owners of the propertg comprised in Leasehold Register Volume 5, Folio 14 Plot 49 Benedicto Khtanuka Street formerlg Plot 49 South Street Kampala (hereinafier the suit land); (b)an order rectifying the Register of Titles to show that the plaintiff is the otuner of the suit land; (c) an order of euiction against the Defendant from the suit land (d)mesne profits; and Page 5 of 91 t0 l5 l0 5 (e) alternatiuelg, but without prejudice to the aboue, a declaration that continued denial o/possession to the said propertg, amounts to depiuation of propertg contrary to the constitution." on 5'h October, 1993 Shell Uganda Limited filed a Written Statement of defence opposing the suit claiming that the suit is misconceived and bad in law in as much as the plaintiffs did not have locus standi due to the following reasons; a) The alleged relationship between HUSENALI NATHU LIMITED and the Defendant did not qualifg the plaintiffs as beneficiaies but rather qs tntstees of Hasanali Nathu Limited and euen if theg were beneficiaies which is denied their alleged interest utas dependent or contingent upon Hasanali Nathu Limited's complete exeantion of its obligations inter alia completion of the corustruction of the building in question uhich it abandoned and or failed to carry out. b) The plaintiffs were not at all beneficiaies but mere nominees to hold the property on behalf of the company and not in their ou.tn isht. c) The plaintiffs do not ryahfA to institute the aboue suit in their own names in as much as theg were appointees whose role is analogous to that of the attorney/holder of Potuer of Attorneg and as such theg do not at all haue anA personal interest in the propertg under the agreement in question. Page 6 of 91 lo t5 l0 ) d) The plaintiffs ought to haue instituted the aboue suit in the name of Hasanali Nathu Limited. In paragraph 7 of the Written Statement of Defence Shell Uganda Limited admitted the contents of the agreement as stated by the plaintiffs in the plaint paragraphs 5(a), b(i)-(iii) but contended that the said transfer was conditional or contingent upon completion of the construction which was not done and the site was abandoned. The plaintiffs lodged an amended reply to the Written Statement of Defence wherein it was stated arnong others that; t0 t5 l0 ll. lu. lu. U T?te cause of action did not aise until 1990 when it became clear to the plaintiffs that Shell Uganda Limited would not honour the Defendant's oblig ations. Until 1982, the plaintilfs were under disabilitg as the plaintiffs had been forced to leaue Uganda in 1972 as stated in paragraph 8(u)of the Plaint. Bg reason of the facts auened bg the plaintiffs Shell Uganda Limited was estopped from pleading limitation. Shell Uganda Limited is estopped from pleading that Hassanali Nathu did not perform the contract since it accepted and occupied the suit propertA in accordance with the contract. By signing the transfer in fauour of the plaintiffs and going through the formalities of transferring the suit land, Shell [Jganda Limited acknowledged the plaintiffs' beneficial ownership of the suit land and therefore the plaintiffs haue locus standi in this suit. l5 Page 7 of 91 5 ui. Hqsanali Nathu Limited performed the contrq"ct as prouided for under the agreement and there is euidence to the effect and fact that there was a uaiation of the contract from time to time. uii. The releuant documents and in partianlar the transfers were not signed in aduance but were signed on performance of the contract. viii. The plaintiffs as transferees of the suit land qre entitled to the reliefs sought in the plaint as the said transfer made the plaintiffs beneficial owners of the suit land. Subsequently counsel for the Defendant/Respondent raised 5 preliminary objections before Tabaro J. as follows; " 1 . That the cause of action is time barred; 2. The plaintiffs haue no locus standi in the matter; 3. The building in question was not completed and hence euen if the plaintiffs were beneficiaies that condition precedent, of first completing the building lns not beenfulfilled; 4. The proper plaintiff should be Hasanali Nathu Limited and not the present plaintiffs 5. the name of the suit should be the grantor of power of attorneA and not the grantee of the power of attorneg." On 28'h October 1999 Tabaro J. gave his ruling on the preliminary objections overruling all the preliminary objections, with costs. He found no merit in the Preliminary Objections either as a matter of principle or form that can bar the plaintiffs from pursuing this suit. Page 8 of 91 l0 r5 20 At page 38 of Volume 2 of the Record of Appeal is a Statement of Agreed Facts signed by both Counsel for the Plaintiffs and For Shell Uganda Limited dated 3'd December 1999 stating the following as the agreed facts; 1. Shell Uganda Limited entered a Witten Agreement uith Hussenali Nathu Limited for the deuelopment of Plot 49 Benedicto Kiuanuka fireet (formerlg South fireet) Kampala and the same was dated for stamp dutg purposes on 7Vh Julg 1972. 2. Among the salient terms releuant to the suit were that Shell Uganda Limited would transfer the said plot to Hussenali Nathu Limited or its assigns upon: a. lssue of an unconditional occupation permit for the ground floor compising a seruice stationbg 30t' September 1971; b. Obtaining the consent to transfer under the Public Lands Act; c. Receipt of pagment o/Shs. 1/: as consideration. 3. Amongst other clauses the said agreement contained the following clauses; 4.3 and 7.1 for assignment bg Hussenali Nothu Limited of its ights and benefits 13.2 for ertension of time for angthing to be done under the agreement. 4. On 22"d Nouember, 1971 the defendant through its lawgers obtained consent to transfer the plot to the Plaintiffs under the Prtblic Lands Act. l0 r5 l0 l5 Page 9 of 91 5. In September 1972 the seruice station on the plot tuas handed ouer to Shell Uganda Limited bg Hussenali Nathu Limited for full operation. 6. On 4tt' October, 1972 a transfer Deed duly exeqtted bg Shell Uganda Limited and the Plaintiffs was stamped and is in the possession of the Plaintiffs. 7. In October, 1972 the Plaintiffs lefi Uganda duing the Asia"n exodus but their interests and ights in the plot were not affected bg the expropiation Decrees. 8. On 21't Nouember, 1972 an unconditional occupational permit for the ground Jloor onlg uas issued bg the Citg Council of Kampala. 9. On 3'd Julg 1973 Shell Uganda Limited wrote to the 7't Plaintiff stating that no further progress could be made regarding the plot at the material time. 10. In Nouember, 1990 the Plaintiffs demanded transfer of the plot into their names but the Defendant refused." On Sth June, 2OOO the plaintiffs lodged a Miscellaneous Application No.7O4 of 2OOO arising from HCCS No.614 of 1993 seeking orders that; a) Shell Uganda Limited do deliuer up to the Plaintiffs within 7 dags, the Duplicate Certificate of Title to the suit propertg compised in Leasehold Register Volume 57 Folio 14 Plot 49 Benedicto Kiwanuka (formerlg South Street); l0 l5 l0 Page 10 of 91 5 b) In default thereof the Registrar of Titles forthwith transfer the propietorship of the suit propertg from the name of Shell Uganda Limited into the names of the Plaintiffs. cl The Cosfs o/this application be prouided for. In May 2OOl a consent order was executed in High Court Civil Suit 614 of 1993 before Tabaro J. in the following terms; 1. The Defendant do deliuer up to the 1"1 Plaintiffs Counsel M/ s Mulenga & Kalemera Aduocates the Duplicate Certificate of Title to the Suit Propertg knoun as Leasehold Register 57 Folio 14, Plot 49 Ben Kituanuka Street (formerlg South Street) Kampala. 2. The said M/s Mulenga & Kalemera Aduocqtes do conanrrently register upon the Suit Propertg; a. The Transfer Deed Stamped on 4th October 1972; b. The executed Mortgage Deed stamped on 29tt' September, 1972; and c. The unexeanted drafi Form of Sublease drawn bg Mboijana & Co. referedto inthe Agreement of 1Vh Julg 1972. 3. Rent for the Suit Property and all other issues to this suit be determined bg negotiation between the parties or, in default of agreements, be adjudicated and determined bg this Honourable Court. Subsequently, Mercator Enterprises Limited became a party to the suit owing to an assignment of the whole of the interests the predecessor plaintiffs had in the Civil Suit, vide an order of Court by consent of all parties. On 4th October, 2006 Mercator Enterprises Page 11of91 l0 20 I5 l5 5 Limited filed a Miscellaneous Application of 2006 agatnst Shell Uganda Limited arising from High Court Civil Suit 614 of 1993 for a judgment on admission of facts by Shell Uganda Limited as follows; 1. Declaing as a matter of law that the Currencg Reform Statute does not applg to the sum due from the Defendant to the Plaintiff. 2. Directing Shell Uganda Limited to forthwith paA ouer to the plaintiffs the sum of USD 2,629,722 (Tlao Million Six Hundred Twenty-Nine Thousand Seuen Hundred TUentg-TIlo Dollars) the said sum compising; a) The quantum due for rents and mesne profits for the "Upper Floors" of the Suit Propertg; b) PIus interest thereon up to 31 December 2006; c/ less the sum due to Shell Uganda Limited bg wag of set- off, under a certain agreed mortgage cunentlg registered on title to the suit propertg 3. Directing Shell Uganda Limited to pag Value-Added Tax as applicable on the aboue sum, in accordance with the Value Added Tax Statute, 1997 as amended. 4. Directing Shell Uganda Limited to prouide a ualid discharge of the aforementioned mortgage anrrentlg registered on the title to the Suit Propertg and to do all things reasonably necessary to remoue the mortgage from the said title, the mortgage debt hauing been settled in the calculqtion of the amount due under fi.rst paragraph aboue. l0 l5 20 25 Page 12 of 91 It was stated in the application that; "THIS APPLICATION IS BROUGHT UNDER: 1. The Consent Order of this Honourable Court made in the present suit on 18 Mag, 2001, together uith the directions contained therein; 2. Order 13, Rule 6; Order 25; Rule 6; and Order 41, Rule I of the Ciuil Procedure Rules and 3. Order 52 Rule 1 of the Ciuil Procedure Rules and all other e nabling le gislatio n. " On 15th July 2016 Alfonse Chigamoy Owiny-Dollo J. (as he then was) delivered a ruling in the application and he found that since there was a consent order entered into by the parties which resolved some of the dispute before the High Court, a-ll issues were res judicata except the issue of mesne profits. He further found that the agreements made between the plaintiff and the defendant could Page 13 of 91 l0 l5 :0 25 5. Prouiding for pre-judgment interest on the aforementioned sum at the rate of 60/o, cotrlpounded monthly from 1"t January 2007 to the date of judgment (since the qmount praged for herein has been calqiated to 3 1 December, 2006) 6. Prouiding for post-ludgment interest on the outstanding amount due qt the rate of 6% compound monthlg from the date of judgment to the date of full and fi.nal pagment. 7. Atuarding to the plaintiffs its costs of the application. 8. Auarding to the plaintiffs such further and other relief as this honorable court maA deem just. not stand after the coming into force of the Expropiated Properties Act of 1982. He reasoned as follows; "It is mg finding, basing on the authorities cited aboue, that the uhole of the Plaintiffs claim pertaining to ang loss of earnings from the suit property cannot stand. This is ouLing to the expropiation of the propertg duing the Amin regime and its further re-uesting in Gouernment under the Expropriated Properties Act of 1982, uith its nullification of all the dealings whateuer in the suit propertg duing the peiod of expropriation. In the euent, then I find this application lacking in merit; and therefore, dismiss it. Accordinglg, the final judgment of the Court in the head-suit herein uill contain the terms embodied in the Consent Order of Court, with the exception of the third item in the Consent Order; read together with this order dismissing the claim for rentals or mesne profits. Since there is no award of monetary benefits accruing to the Plaintiff. I see no point in deluing into the issue of the effect of the anrrencg reform raised and canuassed bg Counsels on either side. Furthelrnore, as pointed out aboue it is my finding that repossession of the suit propertg through Court action was itself, in mg considered opinion not the right procedure, and the suit for the repossession ruas in fact brought against the wrong partA. Nonetheless, the repossesslon of the suit properTg has, howeuer, been ordered bg a Court of equal juisdiction as mine; and I do not sit here on appeal ouer it. Accordinglg, I leaue the I0 t5 l0 l5 Page 14 of 91 5 ) decision undisturbed; but consider that the justice of the case requires each partg here to bear their respectiue costs of the head suit and this application. I so order. Alfons e Chig amog Owing - D ollo Judge 15-07-2016" The appellant was dissatisfied with the decision of the High Court and lodged Court of Appeal Civil Appeal No. 107 of 2017 Mercator Enterprises Limited vs Shell Uganda Limited on the following grounds of appeal; 1. The learned trial Judge erred in fact and in laut when he held that the Expropriated Decrees of 1972-1973, passed bg the Idi Amin regime, applied in this case and operated so cs to inualidate the appellant's claim 2. The learned trial Judge ened in law when he held that; a. Important issues between the parties, that conclusiuelg established the liabilitg of the Respondent, had not alreadg been resolued, b. The doctine o/Res Judicata did not applg; and c. Such issues were open to a de nouo reconsiderqtion by court. 3. The learned trial Judge ened and failed to properlg exercise his dutg when he omitted to consider, ascertain and pronounce uponthe quantum of mesne profit and damage due." Page 15 of 91 t0 t5 :() ) The Court of Appeal Civil Appeal, was heard by Geoffrey Kiryabwire JA, Monica K. Mugenyi JA, Remmy K. Kasule Ag. JA who in their judgment dated 20th July 2021, unanimously found merit in part of the appeal and in the final result ordered as follows; 1. The appeal is partlg allowed. 2. A sum of UShs. 154,795,381/= is awarded to the appellant as mesne profits from the suit propertg. 3. A simple interest of 20o/o p.a is au)arded on the mesne profits from 7"t January 2OO2 up to pagment in full. 4. General damages o/ UShs. 5O,OOO,OOO/= are awarded to the Appellant 5. A simple interest of 9o/o is awarded on the general damages from the date of Judgment until pagment in fulL 6. The cosfs o/ this appeal and those in the Court below are awarded to the Appellant. The appellant was again dissatisfied with the decision of the Court of Appeal hence this appeal. The Appeal. In the Memorandum of Appeal filed in this Court on 2"d June 2022 with Mercator Enterprises Limited as the Appellant and Shell Uganda Limited, the Appellant raised the following grounds of appeal; 7. The l*arned .ftrsfices of Appeal misdlrected thernselrtes and erred. ln law wlrcn theg falled to applg the Page 16 of 91 I0 l5 l0 ) 3.The leorned Justices of Appeal erred in laut and fact uhen theg rejected the euidence on quanrfi.tm of the Appellant's experts. 4. The leanted &stices oJ Appeal erred. in lqut and in fact bg falltng to adopt the uncontested euldence of the Appellant's experas on the mesne profits due, and by adopting instead the dlscredlted euldence of the Respondent's exper-ts, ushlch the Respondent ttself has o,bo;ndoned.. 5. The learned &stices of Appeal erred in lqw and in fact uhen tlvg failed to mqke ang proper ond realistlc olssessmeat of the quantum of mesne profits qnd interest due. 6. The leanted .ftzstices of Appeal misdlrected thernselues and en'ed ln failTng to awsrd approprlate general l0 l0 Page 17 of 91 establTshed legal pttnc'lples applicable to the remcdles of mesne protits, restitrttlonary damageq and equltable com4tensatlon under tntsts, ln their evqluo:tlon of mesne profits, lnterest, and damages. 2. The leqrned. &stices of Appeal mlsdlrected. themsehrcs and. erred. in laut and 7n fact when theg dlsregarded and/or mlsdlrected and mlsconceitred the euldence before tltem on the me,sne proftts due. t5 ) damages commen,suro;te wlth the improper conduct of the Respondent. The Appellant proposed that this Court grants orders that; a) The oppeal be allouted b) The Judgment of the Courl oJ Appeal be set qslde ln part, thol ls, ln respect of the remedies granted; c) The Appellantbe awarded: i. Mesne proftts and intcrest up to 37"t December, 2OO8 in the amount of Uganda Shillings 77,876,697,288 (eleuen bllllon eight hundred setle,nty-slx tnllllon, six hundred nlnelg-one thouscr;nd two hundred eighly-etght), @s evo.luqted. bg the Appellant's exper-t, aq.luers. ti. Interest upon the aforementioned surm from 7"t January 2OO9 up to the date oJ pagment, at a rate conslstent with precedent qnd 7n the dlscretlon of thls Court. iii. Costs of this court and the courts below. Subsequent to filing the Memorandum of Appeal, Civil Application No. 16 of 2022 by Thalion International Limited as Applicant against Vivo Energr Ltd as Respondent therein was on 16th June 2022, determined by my learned sister Mwondha JSC where she ordered as follows; Page 18 of 91 lo 20 l5 ) "IT IS HERDBY ORDDRED that: - (a) The application is granted (b) The Applicant Thallton InternatTonal Limitcd. be substituted in place of Mercator Enterprises Limited (c) The Respondent Viuo Energg Limtted. be substituted in such place of Shell U Llmited. (d) The Pleadings and all other documents filed in Court be deemed to reJlect the said amendment. (e) Costs of the application sholl abide the outcome of the appeal." l0 Representations / appearances; l5 At the hearing of the appeal, Didas Nkurunziza, Samash Nathu and Joel Olweny of Adsum Advocates appeared for the Appellant. Joseph Luswata appeared for the Respondent. The appellants filed written submissions on 31"t October, 2022. The Respondent filed written submissions on 27th Jwne, 2023. The appellant on 3'd July 2023 filed the submissions in rejoinder. The parties prayed and this honorable court agreed to consider the parties'written submissions on our court record in deciding this appeal. 20 Duty of this court as a second appellate court. This is a second appeal it is therefore important for this court to remind itself of its duty as a second appellate court. In the case of Klfannunte Henry a. Uganda Crimlnal Appeal No. 70 of 1997 Page 19 of 91 the Supreme Court on the duty of a first and a second appellate court held thus; sWe agree that on a first appeal" from a convlctlon bg a Judge the appellant is entttled to hqn the appellate Cour-t's own conslderqtlon qnd ulews of the euldence as q uhole qnd lts own declslon thereon. The first appellatc coutt ha.s q. duty to revlew the evtdence of the cq,se and to reconslder the m.a,terlo'ls before the trlql Judge. The appellate Court rnust then m;qke up lts oun m;lnd not, dlsregardlng the Judgment appealed from but carefullg wetghlng and consldertng tt. Wlun the questlon crises cs to whlch taultness should be belleued rather than rlnother qnd that questlon tura.s on mrr;ntter and demeanour the appellate Court must be gutded bg tlrc lmpressions m.ade on the Judge utho saw the udtnesses. Houreuer, there mag be other clrqtm.stqnces qulte apart from the m.o;nner and demcantour, uthlch mag shout wlrether a statemc,nt is credlble or not uthich mdg urarrant a cour-t. tn dtlfedng from tle Jud.ge euen on a questlon of fact turnlng on crediblllty oJ tultness uthtch the appellate Court has not seen. See Pandga u. R [1957] EA 336, Okeno a. Republlc [1972] EA 32 and Chllrles Bitulre a. Uganda Supremc Court Crlmlnal Appeal No. 23 oJ 7985 at page 5. t0 t5 2o Furt,hertnore. euen where a trlql CourA has erre d, the appellqte Coutt tuill lnterfere uhere the error has 25 Page 20 of 91 occasioned. q. misco,rrlo;oe o f iustice: See S. 331il of the Criminal Procedure Act. It does not seem to us that exceot in the clearest of cases . ure dre required to re- evq.luate the euidence like is a first qooellqte Court saae in Constihttional cases. On second qppeal it is srtfficient to decide uhether the ftrst appellate CourA ort ooproachino iE tosk. qoolied or failed to qppla such princ*tles: See P.R. Pandga u. R (srl,pro,), Kaittt u. Uqanda 1974 HCB 723...." Therefore, the duty of a second appellate court is to examine whether the principles which a first appellate court should have applied, (that is to re-examine and re-evaluate the evidence, and come to its own conclusion), were properly applied and if it did not, for it to proceed and apply the said principles. I shall abide by this duty as I resolve the issues in this appeal. l0 l5 The respondent having lodged a Cross Appeal challenging the decision of Court of Appeal to award any damages or mesne profits, I shall determine the cross appeal first before considering the grounds of appeal which are primarily on quantum of the award. ro The Cross Appeal On the 23'd June 2022 the Respondent lodged a Notice of Cross Appeal in this court contending that the decision of the Court of Appeal ought to be varied or reversed to the extent and in the manner and on the grounds that; Page 21 of 91 i 1. The learned Appellate Justices erred in lau.t tuhen theg shified the burden of proof upon the Respondent therebg arriuing at the urong conclusion that the suit propertA was not expropiated. 2. The learned Appellate Justices erred in law tuhen theg held that proof of Citizenship at the time of the Appellant's predecessor's departure from Uganda was not in issue in this case. 3. The learned Appellate Juslices erred in laut in holding that a propertA that was subject to expropriation could at the same time remain un expropriated. The Cross Appellant proposed to ask this Court to allow the Cross Appeal and make the following orders: - a. That the Appellant's rent/ mesne profits clqim against the Respondent be dismissed with cosfs ,o the Respondent. b. The Appellant pags the costs of the Cross Appeal and the costs of the Appeal in the Court of Appeal. Cross Appellant's Submissions: The cross-appellant/respondent submits that the cross appeal is against the findings of the Court of Appeal. It was the finding of the Court of Appeal was that the question whether the cross- respondent's predecessor in title had to prove or proved their citizenship was in issue because; it had not been pleaded in the written statement of defence, and had been agreed by consent of the parties that although the suit property was liable to automatic expropriation under the decree, it in fact remained un expropriated. Page 22 of 91 l0 l5 10 -i That this holding of the Court of Appeal was in error because it shifted the burden of proof of the case that rests with the one who alleges (in this case the cross respondent) to the cross appellant. As found by the trial Judge the cross-respondent's predecessors in title were aware that the Expropriation Decrees affected their rights in the building/ property. That it is also common knowledge that the Expropriation Decrees expropriated to government all assets of Asians who left Uganda under the Asian exodus except property of a Ugandan citizen of Asian origin who proved his or her citizenship at the time of his or her departure. That under the Expropriated Properties Act Cap 87 any returning Asian other than a Ugandan citrzen who proved his or her citizenship at the time of departure claimed for his or her lost asset from the Government of Uganda. That therefore a suit or plaint by a returning Asian against a private citizen in Uganda for the return of assets lost as a result of his or her expulsion from Uganda had to plead and prove the exempting factors akin to pleading exempting factors in a suit that on the face of it is time barred. For this submission the cross appellant relied on the holding of Wqmbuzi CJ in Reglstered Trttstees of Kampala Instll^l.ttre us Depanted Asicrns Properay Ctrctodlan Board Suprerme CourA Ciuil Appeal 27 of f 993 where he a-ffirmed that the Plaintiff who claimed to be a lawful tenant by allocation of expropriated property had to prove under what law the property had been taken over as alleged. Further the Cross-Appellant relied on the decision of Mulenga ./SC /as he then wos) in Mohan Page 23 of 91 t0 t5 :0 l5 Jlfusisi Klwanuka us Ascn Chqd Supreme Court, Ctvil Appeal No.74 of 2OO2 for the submission that the Cross-Respondent having failed to plead in the plaint, their exemption from the Expropriation Decrees, their claim ought not to be considered because it meant that the plaint disclosed no cause of action. That accordingly the Court of Appeal erred since it found that this essentia-l allegation of fact as to the exemption of the Cross- Respondent to the Expropriation Decrees was not in issue. That the question as to whether or not property that belonged to an Asian who left Uganda under the Asial Exodus was expropriated is a question of law. That this being so it can be raised at any time during the trial without requirement to plead it first. For this submission Counsel relied on the case of Ham Enterprlses Ltd as Dlo;nond Tttlst Ba;nk & Another Supreme Coura Civtl Appeal No.73 of 2027. Counsel further submitted that accordingly the court of appeal erred to find that the question of whether the cross- respondent's property was expropriated was not in issue because it had not been pleaded yet being a question of law, it did not need to be pleaded. The cross appellant further submits that the Court of Appeal erred when it held that the question whether the cross-respondent's predecessors in title had proved their citizenship was part of the agreed facts which they did not have to prove. That the cross appellant would not have agreed to that fact if it was not sure that the cross-respondents' predecessors in title's citizenship at birth t0 t5 l0 ::i Page 24 of 91 ) still obtained. That it is settled law that parties to a suit a-re not at liberty to agree to questions of law in their agreed facts See the cases Eulasio Konde as Blandina Nankga Clull Appeal 7 of 79aO. Dlizabeth Nalumansi Wannala as Jollg Kasc:nde & Others Court of Appeal Ciuil Appeol 7O of 2074, Edith Nanhtmhue Kizito & Others us Miriqm Kuteesq Court of Appeal Ciuil Appeal294 oJ 2073, NK Choutdry as UEB Supreme CourA Ciuil Appeal 27 oJ 2O7O. That this rule is so entrenched that even where counsel for a party signed on the statement of agreed facts, they can avoid that agreement if it is an admission of a point of law that turns out to be w'rong see Pnshpo Patel us The Fleet TransporA Company (7960) EA 7O25; Kirtt & Anor us Orlentql Insurance Compang Ltd Supretne Cour-t, Ctrldl Appeal 79-20 oJ 2O27(India} That it is not possible that a property which was expropriated by operation of law without any further authority, which means that the expropriation was automatic on the coming into force of the Decrees as the learned Judge on Appeal found can at the same time remain un- expropriated. That under the scheme of the Expropriation Decrees, the takeover of the property of expelled Asians was by operation of law and did not require a physical take over by the government. That the meaning of the phrase "without any further authority" was considered in Peter Mullra us Crown Bottlers Ltnitzd IICCS 7736 of 7999 as used in one of the Expropriation Decrees and was held to mean the takeover of the asset was by operation of law and Page 25 of 91 l0 I5 20 25 that the takeover had occurred despite the titles remaining registered in the narnes of Lake Victoria Bottling Company. The cross appellant therefore prays that court finds that the cross- respondent failed to discharge their burden placed upon them, that is, to bring evidence that they proved their citizenship at the time of their departure and accordingly the court should find that in absence of that evidence, the property was expropriated to Government. That once it was expropriated under Decree 27 of 1973, aJl private arrangements of the property that may have existed under the first expropriation decrees were nullified. That this would cover the so-called Oral Trust. That the effect of the takeover or expropriation of the property to Government was to extinguish the Alibhai Trust over the suit property. That the suit property was then revested in Government under Section 2 of the Expropriated Propertles Act which also nullified any dealings therein such as tenancies and other such dealings. Further the Cross Appellant submits that the Expropriated Properties Act which also nullified any dealings therein such as tenancies and other such dea-lings prevented the cross respondent from presenting a rent claim against the Government for the period up to repossession under Section 74 of the Act. That this court has interpreted these laws including The Departed Aslo,ns Act and the Expropriated. Propertles Act in NK Chowdry us UNEB Supreme Court Ciuil Appeql No.77 of 2O1I to the above effect. That in that case Miss Chowdry owned Plot 15 Coronation Avenue l0 t5 l0 25 Page 26 of 91 5 Gulu. In 1970, she entered into a tenancy agreement with Uganda Electricity Board to rent her premises. In 1972 she left Uganda under the Asian exodus. In 1994 she repossessed the building, Miss Chowdry entered into and appeared to have concluded negotiations for payment to her by UEB USD 64,000 being rent for the period L972-1994. The Uganda Electricity Board on advice declined to honor the agreement for the payment of the money as rent for that period which dispute resulted in a suit in the High Court for enforcement of the agreement. Miss Chowdry's claim was dismissed in the High Court, Court of Appeal and Supreme Court on grounds that she was not the owner during that time and as such she could not claim rent for that period. That Katureebe JSC in that case held that; - "it was inconceiuable that duing that period that those prouisions of the law were in place, the appellant could haue demanded for pagment of rent in respect of that propertg which she did not legallg own as it had uested in Gouentment". The Cross-Appellant prays that the Cross Appeal be allowed with costs to the Cross-Appellant and the Cross Respondent's Appeal be dismissed with costs in this Court and in The Court of Appeal in favor of the Cross Appellant. Cross-Respondent's Submissions: In reply the cross-respondent submits that the Cross Appellant's submissions are nothing more than a single assertion that the Appellant/its predecessors in title failed to comply with Section 4 of the Expropriation Decree (27 11973) of the Idi Amin regime and Page 27 o{ 91 t0 li 20 l5 failed to prove their citizenship at the time and in the manner specified by the Government. That the Cross Appellant therefore claims that the suit property vested in the Government by operation of law, without further authority and as such the court ought to hold that the Government is the proper party liable. That this submission by the Cross-Appellant is untenable because of the undisputed facts in this case which include the fact that the Cross-Appellant constituted itself into a trustee of the suit property for the benefit of the appellant. That at all relevant times (from 1972-2OOl) the Respondent was the owner of the property as trustee. That as owner and trustee, it entered into tenancy agreements and collected rents which it retained on its own account. It made no attempt in the entire period of over 50 years since 1972 to turn over the suit property or any monies it collected to the government, nor to involve the government in anyway. That in fact the Cross Appellant did the opposite as it deliberately avoided involving the government. That section 28(2) of the same Expropriated Decree upon which the Respondent now relies allowed any party owing a liability to a Departed Asians to settle it by pa),lng the government and obtaining a discharge. The respondent did not do this and thus never discharged from the liability, which still subsists. Further in 1974 the Respondent received legal advice that it should not draw the attention of the Government to the fact that such a liability eists and instead hold the money themselves and that is what they did and they continue doing to date. l0 l5 l0 25 Page 28 of 91 That this court is confronted with a litigant which openly admits that they are still a trustee, they collected the sums of money as trustee and yes, they are still holding the monies to date but they do not want to pay the money over to the beneficiaries of the trust so they are not liable and they would be allowed to keep the money. That this Court should not permit a trustee holding trust monies to simply misappropriate those monies for itself. That a trustee who dishonestly appropriates property of another with intention of permanently depriving the other of it is guilty of theft. That the Cross Appellant's argument also fails on the grounds of its own conduct in this case which has been wholly inconsistent with the position it now takes. That as the Court of Appeal observed the respondent did not plead its reliance on section 4. That the Respondent tries to claim now that the onus was on the Appellant to plead it and adduce evidence to prove that it was complied with, as an essentia-l element of its claim. That this is fa-llacious. That it was not an essential element of the claim to prove the negative proposition that the suit Property had not been expropriated because it had not and the respondent was the owner of it (as trustee) at all relevant times. The respondent is the party invoking Section 4 of the Act as a defence. Therefore, the Respondent ought to have pleaded it specifically and in sufficient detail to enable the other party to respond. That this the Respondent did not do. Page 29 of 91 l0 I5 ?0 f That in fact the Respondent did the opposite. In 1998 it conceded in the agreed facts that the plaintiff left Uganda during the Asian exodus but their interest and rights in the plot were not affected by the expropriated Decrees. That in 2OO1 the Respondent agreed to the consent order obliging it to transfer the suit property and negotiate the rents due \ rith no mention of any alleged expropriation. That in 2OO7 in the rent negotiations the Respondent also agreed to the latter Agreement confirming the principles for evaluating the mesne profits again taking its liability as a given with no mention of any alleged expropriation. That in total the Respondent did not plead section 4 as a defence in the trial Court and it admitted on court record that section 4 did not affect the Appellant's interests and rights and, in its conduct, it consistently assumed its liability as a given. That only in the final stage of this application in the High Court in its submissions in reply did the respondent invoke section 4 of the Act. That in light of such pleadings of the Respondent admission and conduct, without any evidence, the appellant has never had any reason or any opportunity to adduce evidence on this point. That to draw an adverse inference as the Respondent prays this Court to do would therefore be a grave injustice to the Appellant. That the Respondent's argument bears all the hallmarks of an afterthought raised late and in bad faith as an ambush; in disregard of the established facts, admissions, conduct and Page 30 of 91 l0 l5 l0 5 common sense and engineered only to a,llow the Respondent to escape its trust obligation and retain such an argument to prevail. That the case of Registered Trustees of Kampala Institute and Mohan Musisi Kiwanuka cited by the Respondent is cited out of context because the duty to plead section 4 of the Act and adduce evidence of compliance with the Act was o them which they failed to do. That moreover in 1993 when the claim was brought the Expropriation Decrees were not the law of the land having been repealed in 1982 and even condemned as "odious" by the Courts in Registered trustees of Kampala Institute case. That it is not the duty of the claimant to anticipate every potential statute that might be raised in defence especially the repealed laws and to preemptively plead it. That it was the duty of the Respondent if it sought to rely on Section 4 as a defence to specifically plead the same which in this case it failed to do. Page 31 of 91 t0 l5 20 That the authorities cited by the Respondent do not support the Respondent's defence in this case which is that whereas they by their own admission are holding trust monies while pretending that the liability is on government by operation of law in section 4, this court should nevertheless let them keep the money. That such argument is unheard of in Uganda and there is no precedent for it. That allowing a trustee to simply retain trust monies while holding a stranger to the trust responsible by operation of law is an injustice which the law or the Court cannot allow. That the submission of the Respondent to the effect tJlat a point of law need not be pleaded but may be raised at any time is rather absurd. The Respondent relied on Ham Enterprises case and the Chowdry Balusio Konde case and other cases as authorities for this argument and claimed that the question of whether or not a property was expropriated is a question of law. This argument is misleading and without authority. That expropriation is not a question of law because it requires a careful factual inquiry to determine the issue of expropriation. That therefore it is possible as was the case in Registered Trustees of Kampala Institute Case that a property could have been taken over in fact when it was not in law and that where this happens then the conclusion ought to be that it was taken over. That conversely where the property was not taken over in law it may in fact have been taken over. That also in the Peter Mulira case the claimant sought to attach a property registered in the name of a client for his fees and again the Court found that as a fact the property although registered to the client, had been expropriated by the 1975 decree and had been sold to a third party so the claimant's lien could not stand. That in both cases factual reality of the times determined the cases. That further in the Nk Chowdry case the court disallowed a claim for rent for the period preceding the repossession of the property by its expropriated owner but only after conducting a complete factual enquiry and found that the property had in fact been expropriated t0 t5 :0 Page 32 of 91 ?s and taken over by the government and that the tenant had in fact already paid the rent to the government. That the claimant could not collect rent again for the period when the government through factual expropriation had owned and possessed the property and already collected rent. That clearly the Nk Chowdry case and the instant case are distinguishable because in the instant case there was no expropriation on the facts or receipt of monies by the government. In this case the Respondent owned and controlled the Suit Property at all times and collected all the rent, which it still retains and has never handed over to the government. That the Respondent has not cited any actual case of expropriation which happened only by operation of law without physical takeover, occupation, control of or other direct involvement by the government. That there is no such case. That the true picture from the case law is that courts do in fact perform a full and realistic factual assessment in each case to see whether a property was actually expropriated and what the legal implications of that might be. That in each case expropriation is a question of fact rather than law. That this approach is the most sensible and proper approach to such cases because the mandate of the court is to do justice in reality and not entertain legal fictions. That the Respondent's entire argument of expropriation 'by operation of lau/' is a legal fiction without reality. That the Respondent itself settled the question more than 20 years ago in l0 l-i l0 t5 Page 33 of 91 5 i 200 1 when it voluntarily under the Consent Order, transferred over the Suit Property in partial fulfilment of its trust obligations and agreed to negotiate rents. That there no longer even exists a question of property on which the Expropriation Decree has relevance. That in reality here is; (a) the Respondent at all materia-l times owned and controlled the suit Property in Trust and collected substantial rents as trustee, (b) the government was never involved and indeed was deliberately kept out of the matter by the Respondent itself, and (c) the Respondent continues to hold the monies it collected as trustee and is attempting now to illicitly retain them. That it is respectfully submitted that the Respondent must be compelled to disgorge *te mesne profits it holds in trust, in full and that its Cross -Appeal must therefore fail. Cross Appellant's Submissions ia ReJoinder. That the Cross Appellant's submission is that the Cross Respondent/Appellant did not plead or bring any evidence in Court to show that its property was not expropriated. That the appellant was bound to do so because every property of expelled Asians was expropriated and any Asian claiming the return of their property other than from the Government would have to show in the suit why he was claiming the property from a private citizen that is that the property was not expropriated. That this would be an essential Page 34 of 91 l0 I5 lc) 5 part of the claim to constitute a cause of action. That the fact that the issue could be raised in defence does not take away that obligation on the part of the appellant as claimant/plaintiff to say everything required to make a case against the defendant. That the instant case is the only recorded case where the departed Asian is claiming for the return of property from a private ciLizen and rent from the property for the period from 1972. That no expelled Asian has ever claimed for Rent for the period until repossession. That in any case the fact that the suit property was expropriated was well known by the cross-respondent's predecessor in title. That the trial Judge summarized the cross-respondent's knowledge of the question in his ruling. That there was a-lso a legal opinion from Kulubya and Company Advocates in 1974 where it was clearly advised that the liability existed to the Departed Asians Custodian Board because the property had been acquired by Government. That the decree in force in 1974 when the legal opinion was written is the Assets of Departed Asians Decree. That it is now called Departed Asians Properties Act Cap 83. That it was in force in 1993 when the suit was filed. It has never been repealed as suggested by the Cross Respondent. That some of the pertinent facts relating to the Cross Appellant's case were pleaded in the plaint paragraphs 8(1) and in paragraph 5 of the Reply to the Written Statement of Defence where the plaintiff mentioned correspondences above cited and in paragraphs 8(iv) of Page 35 of 91 t0 l0 l5 t-i 5 the Plaint. That the plaintiff mentioned laws that affected Asian expulsion and also mentioned that they departed Uganda. That these letters were introduced in evidence in the Applications by PW1 Amirali Nathu under paragraphs 6(b)-6(0. That therefore it is not true as claimed by the cross respondent that they were ambushed by the assertion that the suit property was expropriated. That the Cross Respondent was awa-re that the property had been expropriated and that there was nothing they could do because they did not have evidence that their citizenship was proved at the time of their departure. That if the evidence existed, it would have been brought because the cross respondent brought everything it had regarding its claim in the suit. That lastly the Cross Respondent is right that a liability exists against the Cross Appellant in terms of Section 28 of the Assets of the Departed. Aslans Act. That it does exist but in favor of Government of Uganda. That the Cross-respondent's claim of the rent on equitable principles does not apply because there is express written law on the issue. That there is no trust money held in favor of the Cross Respondent. Determination of the Cross Appeal The entire subject of the Cross Appeal is whether or not the suit property is Expropriated Property and if it is the Cross Appellant submits then there is no trust in favor of the Cross Respondent but rather in favor of the Government of the Republic of Uganda. This means that the Cross Appellant does not deny that it has the Money Page 36 of 91 t0 l5 t0 l5 ) collected as claimed by the Cross Respondent. It only says let it be ordered by this Court that the Money be paid to the Government. The Cross Respondent on the other hand submits that there is a trust in their favor and that the suit property is not expropriated property. The Court of Appeal dealt with this issue at page 14 of its Judgment where it dealt with ground 1 on whether or not the learned trial Judge erred in law and in fact when he held that the Expropriation Decrees passed by the Genera-l Idi Amin regime during the period 1972-1973 applied to the case of the Appellant and whether the said Decrees operated so as to invalidate the Appellant's claims in the suit property. The Court of Appeal reasoned, and I agree, that; the essence of the l"t Ground of appeal and indeed the whole appea-l is to determine whether or not the learned trial Judge was right, both in fact and in law, when he held that the suit property Plot 49 Ben Kiwanuka Street, Kampala City, and the developments thereon, comprising of a commercial building structure with a petrol station on the ground floor, was expropriated by the Expropriation Decrees passed by Idi Amin Regime during the period L972-1973 when the said Regime expelled certain categories of Asians from Uganda. A resolution of the above, requires an examination of the relevant Expropriation Decrees that Idi Amin passed in 1972- 1973. The first decree was "Tlrc Declo,ratlon of Assets (Non-C"ltizen Asian) Decree No. 27 of 7972" made on 4th October, 1972. This Decree Page 37 of 91 t0 r5 l0 l5 5 was however, deemed to have come into force on the 9th August 1972. The Decree made provision for the Declaration of Assets by Non-Citizen Asians leaving Uganda by reason of cancellation of the entry permit and certificate of residence under Decree No.77 of 7972. Then there followed, uThe Asseb of Departed Asians Decree No.27 oJ 7973 which barred a departing Asian under the category of Decree No.17 of 1972 from transferring, mortgaging, issuing new shares, appointing new directors or changing sa-laries or terms of emplol.rnent of staff in respect of any immovable property, bus company, farm including live stock, or any business. Every departing Asian had to declare his or her assets and liabilities to the Government through the Minister of Commerce and Industry. A departing Asian could also appoint an agent to sell the property under the supervision and direction of the Government. The Appellant's predecessors in title were Ugandan Citizens by birth but of Asian origin. They were not in Uganda on the basis of being granted entry permits and Certificates of Residence. Accordingly Decree 27 oJ 7972, on its own did not apply to them. The other law was "The Declarqtlon o/ Assets (Non-Citizen As{cns/ (Amendment) Decree No.29 oJ 7972" made on 24'h October, 1972. This Decree amended Decree No.27 of 7972 by providing for the establishment of a Board to manage the properties abandoned by the Departing Asians. This body was named the "Abandoned Propertg Custodian Board". It was a body corporate l0 t5 20 l5 Page 38 of 91 with powers to sue and be sued. It comprised of the Minister of Commerce and Industry who was the chair, Minister of Finance, Minister of Internal Affairs, Minister of Foreign Affairs, Minister of Mineral and Water Resources, Minister of Public Service and Minister of Local Administrations. This body, as a State Organ, took over and managed every property of the departed Asians that was vested in it. It had the power to deal with the property in the same way as the departing Asian would have done. With respect to any agreement which a departed Asian was a pa-rty, the Custodian Board was to be substituted for that Departed Asian. Under Section 72 of The Declaro:tlon o3t Assets (Non-Citizen Asirzns) (Amendment) Decree No.29 of 7972, every property left by a departing Asian without further assurance, automatically became vested in the Board. Under Section 12(4 of the same Decree, any property abandoned by a departing Asian, or which was left without adequate arrangement for its proper and efficient management, could be vested in the Board bg Statutory Order. Secf,ton 12(3) oJ tlrc sqrne Decree widened the term "departing Asian" to include a non-citizen and a Ugandan Citizen of Asian Origin for the purposes of Sections 72, 73 and 75 of the Decree No.29 oJ 7972. It is indeed important to note that Section 17(3) of the Assets o.f Departed Asians Decree No.27 of 7973 provided that; "For the remoual of doubts where anA propertg is allocated pursuant to Section 16 of this Decree, and the Owner Page 39 of 91 l() l5 l0 25 immediatelg before the acquisition of such property bg the Gouernment Luas a Ugandan of Asian Origin, who has confi"rmed his citizenship in the manner prescribed by Gouernment, the property shall, as soon as magbe, be restored to the said owrter, if restoration is posslble, but where restoration is nol possible, Compensation shall be paid therefor bg the Board." Sec{ion 76 of the Decree No.27 of 7973 provided for the allocation of Assets to Uganda Cit2ens. It is a-lso important to note that under Section 17(3) of Decree 27 of 7973, when a Ugandan Citizen of Asian origin confirmed his or her citizenship in the manner prescribed by Government, then his or her property had to be mandatorily restored to him or her, and where restoration was not possible, then compensation had to be compulsorily paid to him or her by the Departed Asians Custodian Board. The Other law that needs to be considered is uThe Assets o/ Departed Asians Act" which commenced on Sth December, 1973. Section 3 of thts Actvested the assets and liabilities declared by a departing Asian, including property or business recorded in the register of property and businesses of departing Asians, as well as any assets left behind by an Asian who failed to prove his or her citizenship at the time and in a manner specified by the Government, into the Government. Section 4 of the Act established tl:,e Departed Asiqns Property Cttstodian Boqrd with l0 I5 l0 25 Page 40 of 91 l ) powers set out in section 6 of the Act, the main power being to take over and manage all assets transferred to it by virtue of Sectton 73 of the Assets of Depanted Asia,ns Decree No.27 of 7973. Applying the above stated laws to the instant case shows that expropriated properties, at the materia-l time, consisted of those properties belonging to the non-Citizen Asians who had been expelled from Uganda. These included Asians who were staying in Uganda but whose entry permits and Certificates of Residence had been cancelled by or under the hnmlgro;tlon Cancellatlon of Entry Pennits and Cert'lficatc of Resldence Decree, 7972; (see Section P) of Decree No.27 oJ 1972). This category was later enlarged by section 12(3) of Decree No.29 of 7972 such that the term departing Asian would include both non-citizen Asians and Ugandan Citizens of Asian Origin. However, the property of a Ugandan Citizen of Asian origin could only be expropriated if that Ugandan Citizen left Uganda, abandoning the property or leaving the same in such a way, without making adequate arrangement for its proper and efficient management see Section 72(2) and (3) of Decree 19 of 7972. It thus follows that if one claimed to be a citizen of Uganda, but failed when required to prove his or her citDenship, then such a person would be treated as a Non-citizen of Uganda and the property would be expropriated see Section a(1) ot the Decree No.27 oJ 7973: Assets of Departed Asiqns Decree, 7973. I0 l5 l0 25 Page 41 of 91 ) On the other hand, the property of a Ugandan Citizen of Asian Origin who proved or conhrmed his or her being a citizen of Uganda had to be compulsorily be restored to the said Uganda citizen owner of Asian Origin, and if restoration was not possible, then the said owner had to be paid compensation by the Government through the Custodian Board. The restoration or paJment of compensation to such Ugandan citizen owner of Asian origin had to take precedence over any other compensations under Decree 27 of 7973. Therefore, the law as it was at the material time provided protection to a citizen of Uganda of Asian origin whose citizenship was not questioned or disputed and who did not abandon his or her property or left the same in such a manner without care and management. This would necessitate the taking over of the same in the public interest. The learned High Court trial Judge found in his Ruling that the predecessors-in-title of the appellant did not prove their citizenships when they departed from Uganda in October 1972 and that by reason hereof their respective interests in the suit property became expropriated under Section 4(1) of the Decree No.27 of 7973. The learned trial Judge went on to hold that; "It is therefore quite clear from the aboue cited Section (i.e S.a(1)) of the Decree No.27 of 1973 that it uas incumbent on departing Ugandan Citizens of Asian ertraction who wished to auoid their assels being expropiated, and uested in Gouernment, to proue their citizenship before their departure. There is no euidence Page 42 ol 91 t0 l) l0 l5 l before Court that the plaintiffs/ Applicant's predecessors had proued their citizenship u-then theg departed from Uganda in October 1972; or at anA other time afier their departure. The burden rested on them to adduce euidence in Court that theg had compiled with this clear prouision of the law." I do not agree with the learned trial Judge. With great respect to the learned trial Judge, he had no basis to hold as he did above because the issue of whether or not the predecessors in title to the Appellant had to prove or proved their being Uganda Citizens by birth did not at all arise with the pleadings hled by either party in original High Court Civil Suit No.614 of 1993. I would instead hnd the reasoning of the Court of Appeal more agreeable where the Justices of Appeal reasoned that had the Respondent raised the issue in its written statement of defence, then the Appellants would have appropriately pleaded in reply to the said written statement of defence. At trial the appellant would also have adduced the necessa-ry evidence to prove that they had proved their Ugandan Citizenship by birth or otherwise as the law at the time had required. Indeed, at the hearing of High Court Civil Suit No.614 of 1993, the Respondent as Defendant agreed with the Appellant (then Plaintiff) and it was recorded as an agreed fact that; "In October 1972 the plaintiff (i.e now appellant) lefi Uganda in the Asian Exodus, but their interest and ights in the plot (i.e the suit land) were not affected bg the Expropiation Decrees." l0 I5 20 25 Page 43 of 91 There is no way the Respondent would have taken that as an admitted fact in the absence of any knowledge that at the time the Appellant left Uganda under the Asian Exodus, they had proved that they were Ugandan Citizens. I also find that the testimony of Amirali H. Nathu as witness for the Appellant during cross- examination by Counsel for the Respondent on 27'h January 2OO9 proves that he was born in Uganda and there is no evidence at a-ll on record to prove the contrar5r. In testimony he stated that he was 70 years old and that he was born in Uganda. It was not put to this witness that he was not telling the truth or that he had failed to prove his citizenship when he left Uganda during the Asian Exodus in October 1972. lt was also not put to him by Counsel for the Respondent that the rest of the Appellants had failed to prove their Ugandan citizenship in October, 1972 and thereafter. The Respondent having assured the Appellant that it was an agreed and admitted fact that the Appellant's rights in the property "were not affected bg the Expropiation Decrees" meant that it became unnecessa-ry for the Appellant to prove the fact of their Ugandan citLenship. As such the Respondent is estopped from asserting that the interests of the Appellant in the suit property had been expropriated by reason of the Appellant's failure to prove their being Ugandan Citizens. When it comes to the Expropriated Properties Act, 7942, the Act provided for the return of all properties, that had been acquired or otherwise expropriated during the Idi Amin Regime, to former l0 t5 :0 l5 Page 44 of 91 f This Supreme Court has so held in Ctull Appeal No.27 of 7993: Reglstered T?ttstr,es of Kamgtalo. Institute vs Departed Aslans Propertg Cttstodiqn Boqrd. The Supreme Court further held in the same decision that the Exproprtated Propertles Act was intended to effect justice and as such it must be interpreted and applied in a manner that produces and promotes a just and not an unjust result so that the injustice of the expropriation is not prolonged or exacerbated. Accordingly, the fact of an actual or unjust physical taking over of the property was arr essential basis for applying the Act. In the case of the instant suit property, which is the subject of these Court proceedings, there was no physical taking over of the suit property by the Government at all. The Respondent has no evidence whatsoever to prove that the Government at any one time took over the suit property. In fact, the Respondent remained in control, occupation and use of the suit property from the time it was handed over to them by the Appellant in L972 until 2O0 1 when through a Court Consent Orders in High Court Civil Suit No.614 of 1993 they transferred the same Page 45 of 91 t0 :0 l5 owners of the properties. The Act applied and still applies to the properties that had been physically taken and managed by Government under the expropriation processes. The Act placed these properties under the management of the Government through the Ministry of Finance with a view to having the same returned to the Asian owners from whom they were expropriated whether lawfully or unlawfully, by the Idi Amin Military Regime. l5 to the Appellant. It is also clear in the evidence on record that the Respondent was advised, in a legal opinion which they requested from their lawyers, M/s Kulubya & Co. Advocates, that might have been in the category of an expropriated property and as such, they were accountable for it to the Departed Asians Property Custodian Board. The Respondent addressed themselves to this opinion but, from the evidence of their conduct on record, rejected it and continued to occupy, control and manage the whole property, including running their own petrol station on the ground floor and occupying or renting out at monthly renta-ls to various tenants the office apartments in the upper two floors pursuant to the agreement which they had entered with the appellants predecessors in title. The actions of the Respondent of staying in control of the property and making gain from the sarne over the years without handing over to the government they claim was the most appropriate action to be taken shows that they were aware as proved in the evidence on record that the Appellant's interests in the suit property were not expropriated because the Appellant's citizenship as Ugandans by birth still obtained. It also shows that they were awa-re that the suit property had not been left by the Appellant in such condition that rendered the property to be expropriated, but rather the same was left under the well-set control management and use of the Respondent. I am also inclined to find as the Court of Appeal found that whereas the Expropriation Decrees of the Idi Amin Regime as well as the t0 I5 l0 :5 Page 46 of 91 Expropriated Properties Act, 1982, created and recognized automatic expropriation of certain categories of properties of Departed Asians, there was no provision in them, or in any other law, preventing the Government, or any other relevant body of the Government, to come across a property, which fa-lls under the category of being expropriated property, but leaving the same in the condition it was in and under the hands of those who had it, without doing anything on that property in the category of expropriated property. The suit property in this case was situate at Plot 49 Ben Kiwanuka Street, (the South Street), the Centre of the Capital City of Uganda and was as such easily noticeable and identifrable by the Government. Indeed, the Government of Uganda at the material time held some shares in the Respondent who were in control, occupation and managing the suit property for and on behalf of the Appellant. On the available facts, on record, therefore, it is sa-fe to conclude as an a-lternative that the suit property even if it were to be placed in the category of Expropriated Properties, the sarne was left not expropriated by the relevant powers of Government and the law did not prevent this. The Respondent therefore remained accountable and liable to the Appellant under the contract a-rrangement between the Respondent and the Appellant as related to the suit property. This arrangement amounted to the Respondent holding, managing and controlling the material part of the suit property for and on l0 t5 l0 l5 Page 47 of 91 behalf of or in trust and for the benefit of the Appellants predecessors in title. I am therefore unable to agree with the claim of the cross appellant that the learned Appellate Justices erred in law. The claim that they shifted the burden of proof upon the Respondent is also misplaced or misconceived. The Court of Appeal on the contrary properly reevaluated the evidence on court record and found that it was sufficient to support on a balance of probabilities the claim of the Appellants' predecessors in title that they were citizens of Asian origin who had proved their citizenship before departing from Uganda during the Asian Exodus. I accordingly do not agree that it was an error for the Court of Appeal to arrive at the conclusion that the suit property was not expropriated. Ground 1 of the Cross Appeal in my assessment therefore has no merit. The claim by the cross appellant that the learned Appellate Justices erred in law when they held that proof of Citizenship at the time of the Appellant's predecessor's departure from Uganda was not in issue in this case, is a-lso misconceived. It appears to be arising from a misreading of the Judgment of the Court of Appeal. The Justices of Appeal did not hnd that proof of citizenship was not in issue. They only found that the Cross Appellant had not pleaded or proved the non-citizenship of the Appellant's predecessors in title to the suit land. Since it was the Cross Appellant's case or claim that the Appellant's Predecessors in title were non-citizens of Uganda burden to prove that claim squarely fell on the Cross Appellant to lo t5 20 l5 Page 48 of 91 present evidence either by cross examination or witnesses to proves it. This is in my view is line with Sec.tion 7Ol of the Euldence Act and cannot be said to be an error. I frnd no merit in ground 2 of the Cross Appeal. Having failed to prove that the Appellant's predecessors in title were not Ugandan Citizens at the time of the Asian Exodus and having admitted that the Expropriation Decrees did not apply to the suit property, then it cannot be said that the suit property was expropriated. It also would follow that the Cross Appellant is estopped from claiming the contra-ry. It also is clear from the evidence on the Court record that the Cross Appellant did not make any attempt to prove the necessary fact of non-citizenship or failure of the Appellant to prove their citizenship so as to found a basis for the claim that the suit property was expropriated. On the contrary the testimony of the Appellant's witness showed that he was 70 years old and that he was born in Uganda which showed that it is more probable than not that the Appellalt's predecessors in title were not only citizens of Uganda at the time of Departure but also that they had proved their citizenship at the time hence explaining why the Government did not take actual possession of the suit property. I am therefore inclined to find that the learned Appellate Justices neither erred in law or fact in holding that a property was not subject to expropriation. It is also my finding that the learned Justices of Appeal did not find as claimed by the Cross Appellant that the property that was subject to expropriation and could at the l0 I5 l0 l5 Page 49 of 91 5 same time remain un expropriated. I find no merit in ground 3 of the cross appeal. Having applied the above principles to the facts and evaluated the evidence on record and I hnd that the cross appeal has no merit. I would accordingly dismiss it with costs to the Cross Respondent. ObJectlons to the Grounds of Appeal The Respondent in their written submissions raised objections to the grounds of appeal. Respond.ent's subm{sslons on obJectlons to the Appeal That grounds 2-6 of the appeal offend the rules of this Court because they ware grounds of mixed law and fact in a Second Appeal contrar5r to section 72 of the Civil Procedure Act and cases such as Mitwalo Magrengo vs Medad Mutyaba Supreme Court Civil Appeal 11 of 1996 and the explanatory one in Lubanga Jamada vs Dr. Ddumba Edward Court of Appeal Civil Appeal No.10 of 2011 to the effect that an appeal to this Court must raise grounds of law only and not of mixed law and fact. That According to the decision in Lubanga Jamada, a question of law is about what the correct legal test is and it arises when a lower court misapplies or misunderstands or fails to apply the relevant law. A question of fact is concerned with what actually took place between the parties to the dispute and when the issue is whether the facts satisfy the legal test, a question of mixed las and fact arises. Kasule Ag. JA said; Page 50 of 91 t0 t5 20 l "An appeal on a point of lau anses when the court whose decision is being appealed against made a. finding on the case before it but got the releuant law wrong or applied it wronglg in arriuing at that finding. The Court reaches a conclusion on the fact which is outside the range that the said court would haue arriued at had the said court properly directed itself as to the applicable lqu. The error must be as result of misapplication or misapprehension of the law. A manifest disregard of law is an error of law . " That in the instant case grounds 2-6 are not sustainable in this court being that they are grounded in mixed law and fact. That in ground 6, the appellant is asking this court to evaluate the Respondents improper conduct and determine if the damages awarded are commensurate which is a matter of mixed law and fact. In all the other grounds, the appellant is asking the court to assess either quantum of rent or interest without mentioning the point of law wrongly applied or not applied by the Court of Appeal in assessing the quantum or interest. That it follows that the Appellant should only present ground t having presented grounds 4 and 6. Appellant's submissions on the obJectlons to tlrc Appeal. In response to these objections the Appellant submits that the objections are misconceived. That Section 72 of the Ciuil Procedure Acl applies only to second appeals to the Court of Appeal from the High Court in its appellate role. That this Court has routinely Page 51 of 91 l0 l5 20 25 considered questions of mixed law and fact as shown even in cases cited by the Respondent for example Ham Enterprises. The main thrust of the Appeal (the grounds being argued jointly) is that the Court of Appeal erred by misapprehending the valuation evidence before it thereby reaching an improper and untenable award of mesne profits. The Court ofAppeal erred both by accepting the Respondent's Va-luations without considering the manifest errors therein and by rejecting the appellant's valuations on factually and legally incorrect grounds. That the case of Bgabalema u WC 1993 Supreme Court Ciuil Appeal No.1O of 1993 per Odoki JSC at p.3 is authority that a failure to properly weigh evidence is itself an error of law and as such is reviewable by the Supreme Court on second appeal. Ruling on the Prellminary Objections. I find no merit in the objections raised by the Respondent to the Appeal. I am inclined to agree with the submissions of the Appellant that the grounds of appeal as raised by the appellant state an error of law which is the failure of the Court of Appeal to properly reevaluate the evidence on the quantum of damages. It will now be the duty of this court to determine that matter of law by assessing whether or not the Court of Appeal properly evaluated the evidence as required by the law on the duty of the 1"' Appellate Court. Whereas I agree with the authority cited by Counsel of Lubanga Jamqdq vs Dr. Ddumba Eduqrd Court of Appeal Cluil Appeal No.7O of 2olf to the effect that an appeal to this Court must raise Page 52 of 91 l0 t5 2t) 25 l grounds of appeal of law only and not of mixed law and fact. I also agree with the submission of counsel for the Respondent that an appeal on a point of law arises when the court whose decision is being appealed against made a finding on the case before it but got the relevant law wrong or applied it wrongly in arriving at that hnding. In the instant case the Appellant raised six grounds of appeal. The Respondent only objects to grounds 2, 3, 4,5 and 6 of the Appeal. Ground 2 of the appeal faults the Court of Appeal misdirection and misconception of evidence on mesne profits this in its nature is a matter of law and not of fact. Ground 3 of the appeal is also faulting the Court of Appeal of wrongly rejecting the evidence of the appellant's experts which in my assessment is also a question of law. Ground 4 of the Appeal faults the Court of Appeal for failing to adopt the uncontested evidence of the Appellant's experts on the mesne profits due, and adopting the discredited evidence of the Respondent's experts, which the Respondent itself has abandoned. This also is a question of law and not of fact as claimed by the Respondent. Ground 5 of the Appeal faults the Court of Appeal for failure to make any proper and realistic assessment of the quantum of mesne profits and interest due. Assessment of mesne profits and interest are matters of law. Lastly ground 6 of the Appeal faults the Justices of Appeal for misdirecting themselves and failing to award appropriate general damages commensurate with the improper conduct of the Respondent. l5 l0 t5 Page 53 of 91 l0 It therefore is not clear to me which matters of fact the Respondent claims the Appeal raises. I see only ground on matter of law as to the manner in which the court handled the assessment of damages and mesne profits which the appellant claims as a matter of law affected the final award. Whereas counsel for the Respondent submitted that the grounds of appeal offended the rules of this court, they did not cite the specific rule of the Rules of this Court. I have failed to find that rule. The Respondent's Counsel cited Seclion 72 of the Ciuil Procedure Act which states as follows "72. Second appeal (1) Except where otherwise expresslg prouided in this Act or bg ang other law for the time being in force, an appeal shall lie to the Court ofAppeal from euery decree passed in appeal bg the High Court, on anA of the following grounds, namelg that- (a) the decision is contrary to lqD or to some usage hauing the force of law; (b) the decision has failed to determine some material issue o/ law or usage hauing the force of law; (c) a substantial error or defect in the procedure prouided bg this Act or bg ang other latu for the time being in force, has occurred uhich mag possiblg haue produced elror or defect in the decision of the case upon the meits. Page 54 of 91 t0 l5 l(l f (2) An appeal may lie under this section from an appellate decree passed ex parte." I do not see the relevance of this rule to the objection as it refers to and only applies to appeals from appellate decrees of the High Court to the Court of Appeal which are indeed also second appeals but not to the Supreme Court. I accordingly find no merit in the objections raised by the Respondent and I overrule the same. I sha-ll deal with the grounds of appeal together since they all relate to the manner in which the Court of Appeal Justices assessed the quantum of damages and mesne profits which they awarded. Ctround 7: The Learned .ftrsttces of Appeal tnisdirected themselaes and erred ln laut when theg failed to applg the esta.bllshed legal principles applicable to the remedies ot mesne proftts, restittttlonary dannages, and equitable compensation under tnrsts, in their euo'luo,tTon o;f mesne profits, lnterest, and dannages. A.I\ID Ctround 2: The leqrned .trstices of Appeal misdirected thelrnsehres and en'ed in lout qnd in Jact when theg disregarded and/or tnlsdirectcd and misconceiued the evidence before thetn on the mesne proftts due. AND Ciround 3: The learned &stices of Appeol etted in lq.w and Jact uthen theg rejected the euidence on quontum of the Appellant's experAs. AND Page 55 of 91 t0 l5 l0 Consideration of the Appeal Ground 4: The leanted.ftrstices of Appeal erred ln laut and in fact bg falling to adopt the uncontr,sted euldence of the Appellant's experts on the mesne profits due, and bg ad.opltng tnstead the dlscredited evldence of the Respondent's e4terts, uthlch the Respondent ttsef ho"s abandoned. AND Giround 5: Tlrc leanted.ftrstices oJ Appedl erred ln laut and ln Jact uhen theg Jalled to no,ke ang proper and reallstic cssessment of the guantum of mesne profits and Tnterest due. AND @ound 6: The leatted .ftrsttces of Appeal misdlrected them,sehtes o;nd etred tn falllng to qward approprlatc general dam.ages commensuratn urlth the lmproper conduct oJ tle Respondent. Appellants' Submissions The appellant submitted that the Court of Appeal erred in the way it awarded mesne profits. The valuations as to mesne profits submitted by the respective parties were at the heart of the matter. That the Learned Justices of Appeal erred both in adopting the Respondent's valuations without considering manifest errors therein and in rejecting the Appellant's valuations on factually and legally incorrect grounds. Their award of UShs 154,795,381 inclusive of interest for the entire 30 years long period of 1972-2002 is with respect not tenable. Page 56 of 91 t0 l5 l0 -5 That the Respondent's Valuations are riddled with errors as is evident on their face. The figures for mesne profits and interest for the 3o-year period L972-2OO2 ranged from UShs 27 rr,illion to UShs 262 rnillion which is a tenfold disparity. That under the platinum lease the rent in shillings was pegged to the dollar, but the Respondent's va-luers ignored the peg. That in some cases, they did not adhere to the actual term of the leases, shaving off a year here and there of known and confirmed tenancies. Many such errors were pointed out in detail in the Appellant's submissions. That here, it suffices to give one exalnple in the platinum lease; the rent in shillings was pegged at USD 50,800 per year for three years on renewa-l the space rent was reduced to USD 2O,32O per year for three years. At the prevailing exchange rates this tenant alone paid about UShs. 1O2 million in 1998 to 1994 (exclusive of interest for just a portion of the premises) That the Respondent's va-luers simply ignored the dollar peg and held the rents constant at UShs 3 million for three years, renewed at UShs 1.5 million for only two years (even though the renewal term was three years). Their tota-l came to some UShs 12 to 15.5 million or less than 15% of the true amount actually received in shillings. That moreover during the renewed three-year period of the platinum lease tenancy, the balance of the premises (less than 25% of the space) had another tenant paying UShs 4,752,O0O per year. That it cannot be correct for the Respondent's va1uers to attribute only UShs 1.5 million to the Platinum by ignoring the dollar peg Page 57 of 91 t0 I5 20 25 l while another tenant pays nearly UShs 5 million for much less space at the same time in the same building. This example of just one tenancy shows that the Respondent's reports are a gross underestimate. The Learned Justices of Appeal's total award of UShs 154 million, for all tenancies over 30 years including interest, is not tenable in the face of rents paid by just one tenant of UShs. 102 million excluding interest. Applying simple interest of 60/o to this tenant's rent for the 8years 1994-2002 (frorn the end of the tenancy to the effective valuation date of the Learned Justices of Appeal's award) yields a figure for interest of just under UShs 49 million, hence a total of UShs 151 million for this tenant alone. That with respect the Learned Justices of Appeal's award cannot be correct. Indeed, it is submitted that the sum awarded of UShs 154 million is simply not credible as a reasonable estimate of mesne profits and interest for a 3O-year long period in a prominent property in the heart of Kampala's central business district. That the Respondent's va-luations are replete with such errors which can be explained only through a willful or reckless disregard for a true and accurate assessment. Such errors were pointed out in detail by the Appellant in both of the Courts below but the Respondent has never addressed them. That the Respondent's valuations should not have been given any weight by the Courts below since the Respondent has never addressed them. The Court of Appeal erred by failing to turn their minds to these errors and by Page 58 of 91 t0 t5 :1) just adopting one figure from an explicitly wide range from the Respondent's Valuations. That the Appellant's valuations were rejected by the Court of Appeal in error. Three reasons were given for the rejection namely that the Appellant's figures; a. Were based in dollars b. Did not take into account the cunencg reform of 1987 and c. Did not deduct for management fees, uacancies and so on These reasons given.by the Court of Appeal are factually incorrect and are not true. Whereas the Appellant's initial valuation was in dollars, it was superseded by a second valuation in shillings after the Respondent objected to the dollars. That the Respondent did not raise any objection to the Appellant's valuation being done in dollars at the Court of Appeal because the valuations had in fact not been done in dollars. The Court of Appeal did not consider the second valuation but appears to have concentrated on the Appellant's first valuation. They should have considered the Appellant's second valuation because it was done in shillings with the dollar as a useful comparison and did explicitly consider and provide for the currency reform and made careful explicit deductions for management fees, vacancies and suchlike. That the Appellant's valuations are divided into two periods up to and after the currency reform. The Appellant's valuers proceeded clearly, logically, step by step. That the Appellant's valuations adhered to the Letter Agreement, the established legal precedent, Page 59 of 91 l() l-s l0 25 ) and common-sense fundamental s. Mesne Profits were calculated as the amount that the Respondent with proper diligence should have collected in accordance with what the parties had agreed in the Letter Agreement as well as the principles of trust law and restitution and indeed the statutory definition of mesne profits. That the Appellant's valuations had deductions for management fees which were made up to 199O the time that the Appellant requested and the Respondent wrongfully refused performance. This is on the principle that a wrongdoer may not proht from his wrong. That the appellant's valuers applied interest at a compound rate of 2oo/o with an a-lternative of 6ok up to the Respondent's wrongful refusa-l in 1990 and 2Oo/o thereafter. There is no dispute that interest should be compounded since both parties va-luers agreed and used compound interest. The 2Oo/o compound rate follows precedent in Suresh Chandra A Ghelani v Patel CA Civil Appeal NO 56 of 2OO4 where monies have been wrongfully withheld t}re 2Ook rate was recently reaffirmed by the Supreme Court in Basiima Kabonesa vs AG & Anor SCCA 16 of 2O2L The Appellant further submitted that the Court of Appeal erred in their assessment of mesne profits in that they adopted the Respondent's valuations w'ithout turning their minds to the egregious errors therein and they dismissed the Appellant's valuations on mistaken grounds that factually were not true. That they also misapprehended the evidence before them, arriving at an award that is inordinately low and not tenable. Page 60 of 91 l0 r5 :o l5 That the Court of Appeal made errors of law as they failed to recognize that the Respondent failed to address the egregious errors in its valuations despite ample opportunities to do so. They should have not given weight to the Respondent's valuations and should have relied on the va-luations of the Appellant especially since the Respondent adduced no evidence to disprove them. It is settled law that a failure to properly weigh evidence in itself constitutes an error of law. That the Supreme Court has the powers to review the errors and correct them. That this court should apply the decision in Matiya Byabalema & 2 Ors. v Uganda Transport Company SCCA No. 1O of 1993 for the principle that an appellate court may interfere with an award of damages when it is so inordinately high or low as to represent an entirely erroneous estimate. It may also intervene where the lower court has misapprehended the evidence in some materia-l respect as did the Court of Appeal in the instant case. That this Court should also take into consideration the misconduct of the Respondent who deliberately refused to perform their part of the agreement and to perform on their liability. Also the award of 50 million by the Court of Appeal was not commensurate with the degree of the Respondent's wrongdoing. The Appellant prays that the appeal be a-llowed as prayed in the Memorandum of Appeal with costs and a certificate of Two counsel in this Court and in the Courts below. ?5 Respondents'Submissions Page 61 of 91 l0 l5 l0 ) That the second valuation was a report to the Respondent by Allied Property Surveyors and it returned a figure of rent collectable from the building of UShs 154,000,000 (Uganda Shillings One Hundred Fifty-Four Million) for the period 1972-2OOl. That the Court of Appeai preferred this later valuation report to that of Mungereza & Kariisa and the ones presented by the Appellant because it found that The Allied Property Surveyors report explained thoroughly all the factors in Uganda for the period and the circumstances of the property that a-ffected its rental opportunities during the period. These factors and circumstances were summarized by the Court Appeal in its Judgment at pages 80-81 of Volume 1 of the Record of Appeal. That the Court of Appeal was right because the reasonable estimation of the rent collected by Allied Surveyor's report is t5 20 :5 Page 62 of 91 The Respondent's counsel submitted that both parties submitted valuation reports showing how much rent or mesne profit could have been derived from the Upper floors of the building for the period 1972 to the end of 2OO1. That the respondent submitted two s va-luation reports one by Mungereza & Kariisa which returned an amount of UShs 27,O00,OO0 (Uganda Shillings Twenty-Seven Million) as actual rent collected by the Respondent and UShs 262,000,000 (Uganda Shillings Two Hundred Sixty-Two Million) as rent that could have been collected for the period 1972-2OOl. That l0 the 27 million is the rent actually collected and the 262 million is the rent that could have been collected for the period 1972-2OOl and as such there is no disparity as alleged by the Appellant. 5 supported or corroborated by other evidence on the record. In i969 the parties estimated that the construction of the property could cost USD 35,000 as per the Appellant's letter at page 25 vol 2 of the Record of Appeal. That the Respondent contributed USD 400,000. That in respect to the ground floor, the parties suggested annual rent for the first floor of USD 2000-2500 up to 199O. That the parties further suggested rent of USD 4O,0OO for 18 years (197 1- 1988). That the parties also agreed to an annual rent of UShs 40,0O0 for the service station under the unregistered sublease. That PW1 and counsel for the Appellant argued that the UShs 4O,O00 annual rent for the service station remained a proposal by the Respondent although the letter at page 16 volume 2 of the Record of Appeal shows that it was an agreed position under the terms of the agreement that the head lease to be transferred to the Appellants and Shell & BP Uganda Limited was to pay the Appellants an Annua-l rent of UShs 40,0000 on the date the service station is handed over to the Appellants. That the Dunn Robertson report at page 124 vol 2 shows that rentable space of the ground floor at 130 sq meters and the ground floor was for commodity trading which was the suitable activity at the location of the building and therefore rent payable thereof gives an idea of what rent office space on the building would attract. Allied Surveyors valued the building twice and established that the rent per square meter per month was UShs 9OO in 1988 and UShs 55OO in i99 1. That in contrast the Appellant's expert put the rate l0 l5 l0 25 Page 63 of 91 f per square meter at UShs 120,478 for 199 1. That MS Babumba Kyey.une who prepared the Allied Property Surveyor Report was not cross exarnined by the Appellant although DWl (Stephen Chomi) indicated to Court at page 532 Vol 4 line 18 that he Babumba was available for cross examination. That the Court of Appeal was right to reject the va-luations of the Appellant because they were done in Dollars. That a party who contracts in UShs takes the shillings at the time of payment whatever its value Bukoto Fartners & @nerq.l Merchrlndlse us Libgan Aro.b Bo.nk and Anor Ctvll Appeo.l 37 oJ 7993 and Kabale Industries as tlganda Cement Corporation Ciuil Appeal 792 of 7984. That the appellant's va-luation principles which included determining the rent in dollars when the rent was payable in shillings adjusting the rental curve against inflation and prime interest rate on dollar loans and the Federal reserve rates of United States are all inconsistent with the principles laid down in the two cases above. That the Appellant's submission that there was another Richard Mungati report which superceded the other reports is not sustainable because that report was neither part of the record of appeal at the Court of Appeal neither is it part of the record of appeal in this Court. That there is no evidence on the record showing that the reports of Dunn and that of Mungati in Volume 2 were abandoned by the appellant. The experts testified on their reports by way of affidavits on record and were cross examined. t0 I5 20 25 Page 64 of 91 The Court of Appeal rejected the Appellant's evaluations because they did not fully consider the voids of the management cost and other expenses of running a business. It is common knowledge that in the world of business things do not always go as planned. That as such voids or vacant periods, defaults in paying rent, expenses such as ground rent, rates, utilities, commission to brokers and others are norma-l outgoings on such a business and can be assumed. That when a court is faced with two experts from either side of the dispute, the court as the expert of experts looks at the totality of the evidence of experts and records the verdict Wqlustmbi us Stand,ard. Chartered Ba;nk (1981) HCB 67. This is the same thing as saying that an expert's opinion can be rejected by the Court if it is inconsistent with other evidence available on record. Page 65 of 91 l5 20 The Respondent further submitted that the Mungati report at page 154-168 concluded that the rent payable for the period 1972- December 2006 was USD 2,629,722 (United States Dollars TWo Million Six Hundred Twenty-Nine Thousand Seven Hundred s Twenty-Two), the exact amount pleaded as rent payable in the Notice of Motion in Miscellaneous Application 628 of 2O06 from which this appeal arises. That the spreadsheets on record are hanging and without any explanation of the principles behind them. That this court cannot be asked to award an amount determined by r0 a report that is not fully on record. That it has been hetd that expert evidence is not considered in isolation but along with other available evidence on record, see Shah & Another vs Shah & Others (2OO3) 1 EA 29O where it was held that: - "the opinion of an expert is open to corroboration and or rebuttal. The opinion is not binding on the Court but is considered together with other relevant facts in reaching a final decision in the case." That in Dhalay vs Republic (1995-1998) 1 EA 29, it was held that "while Courts were obliged to give proper respect to the opinions of experts, such opinions were not binding on the Courts. Expert evidence had to be considered along with all other available evidence and where there was a proper and cogent basis for rejecting an expert opinion, a Court was perfectly entitled to do l0 t5 ?0 so.... That the other evidence available on record supports the valuation of Allied Surveyors and discredits the Appellant's expert valuations. That the Court of Appeal rightly rejected them. That furthermore the Appellant's expert reports do not say how much rent the Appellant itself collected from the Upper Floors between 2OO2 to the time of their reports in 20O6 or 2008 neither do Appellant's other witness state how much they collected from the Upper floors as a matter of fact, evidence that would be corroborative of their estimates. That lastly the appellant's experts used compound interest at a very high rate of 2O%o producing unrealistic results of USD 40,025,47 1 if Page 56 of 91 l5 i currency reform applied arrd USD 15,928,672 if currency reform did not apply and in UShs 1i.8 billion (without currency reform) and 10.8 billion (with currency reform). That the Compound interest of 2oo/o was not agreed. That Compound interest applies in circumstances identified in the case of Attorney General vs Virchand (2OO9) 1 ULR 26, which circumstances do not apply in the instant case. In that case it was held that: - "Compound interest is not founded simply on the mere fact of indebtedness nor on the date the pincipal date becomes due nor on the duration that is taken to pag since accnting. It is based on one or more of a multiplicitg of reasons such as the law applicable to the transaction, the nature of the business transacted or agreed between the parlies, the construction of the agreement or contract made between the parties, the trade custom of the business out of uhich the indebtedness arose, the intentions of the parties or the consequences of the commercial transaction that was concluded between them." That compound interest or the rate of interest are all questions of evidence. Where the evidence of the circumstances that give rise to the use of compound interest are not given, simple interest applies and where evidence of an appropriate rate of interest is not tendered the court rate of6% applies. That on the General damages the Appellant has not demonstrated how the award of the UShs 50 million as general damages is so low as to represent an erroneous estimate. That the alleged misconduct Page 67 of 91 l0 t5 :0 l5 5 of the Respondent was considered by the Court of Appeal in assessing the general damages. That this court cannot interfere with that estimate simply because it would have awarded a different amount. That the Kabonesa precedent does not apply in this case because it was an award of 1 billion to 1560 individuals to share equally and that the award was in the nature of aggravated damages which is made on completely different principles to those on which general damages are awarded. The Appellant's claim is already overburdened by high interest and in those circumstances, an award of such damages as prayed for would be erroneous. That the appellant has not demonstrated any need for a certificate of two counsel and it was not raised in the lower courts. That this has no basis here as per the Poltock as Noirobl Wholesalers Ltd (1972) EA 772 case. The Respondent prays that the appeal be dismissed with costs. In rejoinder the Appellant submits that the letter from 1969 referred to by the Respondent is only in respect to the ground floor of the Suit Property which is not in issue in the proceedings. That the letter was written in 1969 well before and was superseded by the parties Contract in 1972. That crucially the facts and figures the Respondent gives and said to be from the letter are not just misleading but actually false and ought to be disregarded. l0 t5 :0 t5 Appellant's submissions in reJolnder The platinum lease is essential in the assessment of the true value of the mesne profits due, but the Respondent's valuers made Page 68 of 91 indefensible errors in their valuation of it. That the rent clause for the initial term of the lease states that "The rent shall be the equivalent in Uganda Shillings at the obtaining Bank of Uganda Exchange rate of USD 4233.33 per month payable annually in advance with the first payment of UShs 3,048,000 payable on or before the execution of these presents' The plain meaning of this clause is that the rent is pegged to the dollar and each year the dollar amount must be converted to Uganda Shillings at the prevailing exchange rate to arrive at the shilling amount collected. Despite this clear language, the Respondent's valuers, without explanation ignored the dollar peg and held that the rent was constant of UShs 3,048,000 for each year of the initial 3-year term. That they also, without explanation valued the latter years of the 3- year renewal term as vacant, with no rent collected. Such maneuvers resulted in a gross and inexplicable undervaluation. The Respondent tries to justify these errors through various claims for rent amount in the lease being a mistake, or that the amount collected was only UShs 3,048,000 for each year of the intial term, contra.ry to the plain meaning of the rent clause and the dollar peg therein. That the Respondent has not provided any evidence to prove its claims. If the rent collected was 3,048,OOO/= per year then the Respondent must have produced evidence to prove that but instead the Respondent are only relying on bold assertions of their own or l0 I5 l0 Page 69 of 91 those of their valuers but without any supporting evidence whatsoever for any of its claims. With no evidence to the contrary the plain language of the rent clause and the dollar peg must be determinative. That in Cross examination, the Respondent's witness Stephen Chomi confirmed that in 1988, the rent received was about USD 50,000 or UShs 3,048,000. In 1989 it was again about USD 50,000 or UShs 21,400,000. He also explicitly confrrmed the dollar peg stating that when the shilling devalues shell would demand for more shillings. However, he could not explain why the Respondent's valuations did not reflect this. That in summary, taking the rent clause and its dollar peg as determinative, the actual rent collected from Platinum tota-led UShs. 102 million. That applying simple interest of 6o/, frotn 1994 to 2OO2 yields a tota-l sum of rents and interest from one tenant alone, for a limited time for only a portion of the premises of UShs 151 million' That the Respondent's submissions are therefore devoid of any merit. Therefore, the claim by the Respondent that the Appellant's valuations did not explain the methodolog, or give explanations is not correct. The methodolory is clear in the spreadsheets themselves. The Appellant prays that this Appeal be allowed as prayed for in the Memorandum of Appeal. Page 70 of 91 lo l5 20 ) 5 Determination of Grounds 1, 2. 3. 4. 5 and 6 of the Atrpeal. I have carefully considered the evidence, the submissions of the parties and the authorities cited by the parties. Grounds 1,2,3,4, 5 and 6 of the Appeal appea-r to arise from the manner in which the Court of Appeal dealt with gtound 3 of the appeal before them where the learned trial Judge was faulted for having failed to properly exercise the duty of considering, ascertaining and pronouncing upon the quantum of rent, mesne profits and or damages due in the case. The Court of Appeal agreed with the Appellant's claim and found it just to assess the rent, mesne profits or damages payable to the appellant. In doing so the Court of Appeal found that the Valuation Report of C.P Robertson-Dunn as well as that of East African Consulting Surveyors took a wrong approach because they drew conclusions that the rent and mesne profits had to be on the basis of the United States Dollar as the hard and stable currency. That this was wrong because the tenants who rented the suit property were paying rent in Uganda Shillings and not in US dollars and that the tenancies were executed in Uganda Currency. That even where there was a mention of the US dollars the equivalent amount in Uganda Shillings was stated and the payments were made in Uganda Shillings. That as such the Uganda Currency ought to have been the basis for any accountability by the Respondent to the Appellant for any rent or mesne profits collected or due from the suit property. The Court of Appeal cited Bukoto Fqrtners & General t0 I5 l0 25 Page 71 of 91 Merchqndlse us Libgan Arob Bo;nk and Bank oJ Uganda SCCA No.37 oJ 7993 and Kqbqle Industries Ltd us Uganda Cement Corporatlon & Anor SCCA No. 7 92 of 7 9 84 for that propo sition. The Court of Appeal further found that the reports did not exhaustively take into account the Uganda currency reform of 1987 whereby two zeros were knocked off the money amount and the remaining value of the same was reduced by 3O%. That the two reports did not cater for any marlagement fees incurred in managing and the cost of maintenance of the suit property. The Court of appeal further found that the Respondent's Mungereza & Kariisa Report of the Review of the Rental valuation Reports, Mr. Mungereza, a senior partner in this firm admitted himself that the Report of his hrm had some mistakes he could not clearly account for. That on the other hand the Appraisal Report of the Rental values of the suit property for the period September, \972 and December, 200 I by Allied Property Surveyors was realistic and based on sound basic facts which was made in July 2007. That the Allied Property Surveyors report considered the location of the suit property at Plot 49 Ben Kiwanuka Street Kampala and gives reasons why the location reduces rent in the suit property because of lack of proper parking space, too much noise and then being in the vicinity of the taxi and bus parks, the place is ever populated by all sorts of travelers to and from Kampala City and that it was therefore not ideal for offices. It) t5 lo Page 72 of 91 i That this Allied Property Surveyors report considers in detail, the various economic periods of Idi Amin era (1971-1979) when Asians were expelled from Uganda, "the UNLF", uObote II" and "The Okello's" era (i980-1986), and the l99O-2O0 1 era and how rent performance was during those periods. That the effects of the currency reform are considered in detail by the Allied Property Surveyors Report as well as the effect of inflation and the monetaqr policies that were operational at the material time. As a result of the above stated findings the Court of Appeal accepted the Allied Property Surveyors Report of July 2OO7 as realistic and not exaggerated in its conclusions and therefore accepted it as the most realistic and reliable Report as regards the accountability for the rentf mesne prolits due from the suit property. The Court of Appeal then accepted the assessment of 154,762,781 /= as of December,2OOl to be the rent or money got and accounted for as mesne profits from the suit property for the period of February 1972 to December, 2OO1. In the final result the Court of Appeal awarded the following; Page 73 of 91 :0 25 That the report thus sets out the rental incomes for the respective r0 periods from L972 up to 2OOL with the explanations and justifications to back up the conclusions. That these are the rent from the suit property out of the two upper floors during the pre- currency Reform period from 1972 to June 1978 which was UShs. 4,657,2O5 l=. That the rent during the post currency Reform period rs that is June 1987 to December 2OOl was UShs t54,762,781 l=. ) 1. The sum of UShs 154,795,381/= as the rent or moneA got and accounted for as mesne profits from the suit propertg for the period of February 1972 to December, 2001. 2. Interest of 20% p.a on the mesne profits from January 2OO2 up to pagment in full. 3. The sum of UShs. 50,000,000/= os general damages 4. Interest of 9o/o p.a on the general damages from date of Judgment until pagment infull. 5. Cosfs of the Appeal and in the Court below. I respectfully do not agree with the reasons given by the Court of Appeal for disregarding the Plaintiffs' Valuation reports in the instant case. I am mindful that in cases of breach of trust and fiduciary duty of the kind in the instant case there is no right to a share in, or account of, prohts in any conventional sense. The only relevance of the Respondent's profits is that they are likely to be a helpful reference point for the court when seeking to fix upon a fair price for a notional licence (see Severn Trent Water Ltd v. Barnes, l2OO4l EWCA Civ 57O). I therefore find it strange that the Court of Appeal decided to rely on only the Respondent's valuation reports in determining the quantum of mesne profits and damages. It is a-lso not true that the Appellant's valuation reports were pegged on the dollar, or did not take into consideration deductions. Even if they had not, I would not think it a ground to wholly discard the report of the Appellant's valuers considering that they were never effectively struck down in cross exarnination or challenged fully in Page 74 of 91 l-5 :0 l5 t0 ) that regard. The Court of Appeal ought to have considered the evidence as a whole instead of selectively choosing one part of the evidence of the offending party and making it the focal point of the decision on quantum of the mesne profits and damages. In my view the reports of Ivan Mungati and C.P. Robertson Dunn and Mungati's his affidavit at pages 473-491 of the record of appeal read together with the Reports at pages l2l-l7o of the record of appeal are reliable evidence which not only assesses the rent in shillings but also in US dollars. Specifically, the report clearly shows the proper renta-l curve for 1972-1987 and the appropriate deductions together with the interest deductions both in Uganda Shillings and United States Dollars in Figures 5.1 A, 5. 1 B, 5. 1 C, 5.1 D, 5.2A, 5.28,5.2C, 5.2D,7A,78,7C,7D among others which clearly show how the valuer arrived at the final amounts stated in his affidavit. The most relevant part of that affidavit is paragraphs 5 which sums up the amounts of the valuations done by the valuer. Specifically, they state as follows; "5. That upon applying the said rate of 2Oo/o for the entire peiod, from 1972 to 2008, it is mg professional opinion that the ualue of the Plaintiff s claim in this Application is: a. UShs 11,876,691,288 if currencA reform is not applied (that rs Uganda shillings eleuen billion, eight-hundred seuentg-six million six-hundred ninety-one thousand, two-hundred eightg- eight) Page 75 of 91 l0 l5 20 5 t0 I5 b. UShs 10,844,384,410 if culrencA reform is applied (that is Uganda shillings ten billion, eight -hundred fourtg-four million, three -hundred eightg -four thousand, four hundredl I am therefore unable to agree with the assessments and awards made by the Court of Appeal. I will go ahead and make a fresh revaluation of the sums awa-rdable under the circumstances of the case. But before I go ahead to do so there is an issue of whether or not the currency reform Act should be applied. In my assessment and view it should not be applied. The reason being first that The Currency Reform Act was repealed in the year 2000 and I find it not agreeable to apply it in this case. It was a transitional law as was held in the case of Administrator General vs Bwanika James and Others Court of Appeal Clvil Appeal No.36 of 2OO2. The Act was intended to apply within a reasonable time after the statute has been passed and cannot be applied as in this case after all those yea-rs more than 24 years after its repeal when the economic environment has totally changed. Transitiona-l provisions of the law should not be applied indefinitely. I also find the Currency Reform Act not applicable because as was held by this Court in Administrator General vs Bwanika James and Others Supreme Court Civil Appeal No.7 of 2OO3 the Currency Reform Act cannot be applied for monies misappropriated before the Act came into force. I a-lso find that the application of the Act would result in a travesty of Justice. I take into consideration Page 76 of 91 20 ?5 the Respondent's conduct in this case where they tried to get away with this wrong committed against the Appellant's predecessors in title by adamantly refusing to settle the accounts with them. I will therefore not apply the Currency Reform Act in this case. Mesne Profits Mesne profits are premised on the definition in Section 2 oJ the Clull Procedure Act (CPA) where they are defined in section 2(m) of the Civil Procedure Act 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 sha-ll not include profits due to improvements made by the person in wrongful possession.' The moment a party proves a better title against the party who was in prior possession, he or she is entitled to compensation against the unlawful possessor of the property. Mesne profits are one such mode of compensation that can be claimed against a person in unlawful possession. It is an established principle concerning the assessment of damages that a person who has wrongfully used another's property without causing the latter any pecuniar5r loss may still be liable to that other for more than nominal damages. In general, a party in wrongful possession is liable to pay, as damages, a reasonable sum for the wrongful use he has made of the other's property. The law has reached this conclusion by giving to the concept of loss or damage in such a case a wider meaning than merely financial loss calculated by comparing the property owner's Page77 ot91 t0 1.5 l0 25 ) financial position after the wrongdoing with what it would have been had the wrongdoing never occurred. Furthermore, in such a case it is no answer for the wrongdoer to show that the property owner would probably not have used the property himself had the wrongdoer not done so (see Stoke Clty Councll a. W dnd J Wcss, [19881 7 WLR 1406). When damages are claimed in respect of wrongful occupation of immovable property on the basis of the loss caused by the wrongful possession of the trespasser to the person entitled to the possession of the immovable property, these damages are called mesne profits. In assessing mesne profits, the proper starting point is the value of the land encroached upon. The court may then take into account the extent to which the piece of land encroached upon has enhanced the amenities of the defendant's own user (see Inventgie Investntents Ltd. a. Hackett [19951 7 WLR 773). Mesne profits are in a way payment by the defendant in respect of the benefit he or she has gained out of the trespass. They are in general awarded because the defendant has made improper use of an asset of the plaintiff. In economic terms, there has been a transfer of va-lue for which the wrongdoer must account (see Deventsh Nrttt'ltton Ltd u. Scno;E Auentls Sa (Fro;nce) qnd others, [2OO9l Ch 39O, 2OO9] 3 WLR 798, [2OO9] 3 All ER 27). The court though should be mindful that in cases of trespass of this kind there is no ight to a share in, or account of, profits in ang conuentional sense. The onlg releuance of the defendant's profits is that theg are likelg to be a helpful reference point for the court when seeking to fix upon a fair price for a notional Page 78 of 91 l0 l5 l0 l.i I license (see Seuern Trent Water Ltd u. Barttes, [2OO4l EWCA Cia s7o). Since mesne profits are the profits, which the person in unlawful possession actually earned or might have earned with the ordinary diligence, they may also be awarded on the basis of market rent even if the plaintiff would not have let the property if vacant /see Swordherrth Propertles Ltd a. To.bet [19791 7 WLR 285; Whitutham a. Westmlnster Brymbo Coal and. Coke Co, [1896] 2 Ch 53A and Attonteg General u Blake [2OO1] 7 AC 268} Theg are measured as the amount that might reasonablg haue been demanded bg the plaintiff as pagment for the user of the land for the peiod of trespass. Mesne profits do not include profits due to improvement made in the property by the person in wrongful possession. The court may be guided by profits which the person in wrongful possession of property actually received or might with ordinary diligence have received therefrom, together with interest on such prohts, but should not include profits due to improvements made by the person in wrongful possession. Determinqtion of the quantum of mesne profits is lefi at the discretion of the court and being in the nature of damages, the Courts haue not laid down ang inuaiable rules gouerning award and assessment of mesne profits in euery case. There are no uniform citeia for the assessment of mesne profits. The quantum depends upon the facts and surrounding circumstances of each case. TTte Court mag make awards and Page 79 of 91 I0 r5 ?0 25 ) assessmenf s of mesne profits according to the justice of the case. It is settled principle of law that in case of mesne profits the burden of proof rests on the plaintiff. The onus of proving what profits the defendant might have received with the ordinar5r diligence lies on the plaintiff. The plaintiff may also adduce evidence to prove that the defendant was not diligent and might have obtained greater prolits by proper diligence. Page 80 of 91 While assessing the quantum, factors such as location of the property, comparative value of the property, condition of property in l0 question, profits that are actually gained or might have been gained from the reasonable use of such property are generally taken into consideration by the courts. The key criteria for the calculation of mesne profits is not what the owner loses by the deprivation of possession but profits should be calculated on the basis of what the ls person in wrongful possession namely, the defendant/Respondent had actually received or might with ordinary diligence have received therefrom. ln Waters and ors a. Welsh Deuelopmcnt Agencg, [2OO4l 7 WLR 7304, the method adopted was the "open market value" approach where compensation was assessed by reference to 20 the price a willing seller might reasonably expect to obtain from a willing buyer and consideration given to the enhanced value of the land because of its location or attraction to a particular buyer or class of buyers or its value to an adjoining landowner. It is settled that wrongful possession of the defendant is the very zs essence of a claim for mesne profits. 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. ln Elliott v. Bognton [19241 I Ch. 236 (C.A) Warrington, L.J, at page 25O satd: "Now damages bg utag of mesne profits are anaarded in cases where the Defendant hqs wrongfullg tuithheld possession of the land from the Plaintiff." ln Cltfion Securlties Ltd. u. Huntleg & Or's [19481 2 All E.R 283 at p. 284, Dennlng J, raised and answered the question: "At what rate are the mesne profits to be assessed? When the rent represents the fair ualue of the premises, mesne profits are assessed at the amount of the rent, but, if the real ualue is higher than the rent, then the mesne profits must be assessed at the higher ualue." It clearly comes out from the above stated principles on award and assessment of mesne profits that the award of mesne profits is not just a compensation of what the Defendant or the Respondent actually earned out of the property. The actual earnings only operate as a guide to the Court to determine the fair and adequate compensation awardable to the Plaintiff or the Appellant in this instant case. I find the amount of UShs. 154,795,38 1/= as the rent or money got and accounted for as mesne profits to be extremely low and unfair in the circumstances of the instant case. The reason Page 81 of 91 l0 t5 :0 5 being that it was solely based on the evidence of the Respodent who is actually the faulted party who illegally held over the property of the appellant's predecessors in title. They failed and adamantly refused to account to the Appellant's predecessors in title and instead sought to use legal wits to avoid the liability. Their valuations cannot be trusted and by the figure which they returned it shows that they were more than determined to keep the plaintiffs out of their money and property. I do not find their evidence to be safe. It is a-lso clear that the Appellant's experts followed a clear and logical three step procedure to evaluate the rents and their conclusions are fully substantiated by evidence and the data. In their report they have regard to actual, conlirmed leases that shell disclosed. They also note the disclosed leases cover only a portion to be evaluated and that there were larger gaps to be considered and closed up. They also deduct many voids which are the periods when the premises may not have been occupied as opposed to the Respondent's experts who apply a flat rate of 2Oo/o as deductions for the entire 30 years without disclosing the actual facts yet those facts were squarely within their knowledge and control. The plaintiffs experts also deducted the management fees in their valuations and the mortgage which existed between the parties. To me the Appellant's valuations were more comprehensive and more rea-listic and I am inclined to give them a greater weight as evidence before me. Page 82 of 91 l0 l5 t0 ?5 l The valuation experts of the Appellants concluded as follows; a. UShs 11,876,691,288 if currencA reform is not applied (that is Uganda shillings eleuen billion, eight-hundred seuentg-six million six-hundred ninetg-one thousand, two-hundred eighty- eight) b. UShs 10,844,384,410 if cuffencA reform is applied (that is Uganda shillings ten billion, eight -hundred fortg-four million, three-hundred eightg -four thousand, four hundredf The valuation experts of the Respondent (Allied Property Surveyors) on the other hand concluded that the tota-l rent payable compounded at 60/o was 154,762,781 1=. Also, the Respondent's report by Mungereza & Kariisa found that the rent due and payable to the Appellants is between UShs 27,822,086 and UShs 262,066,508 for all the 30 years that the Respondent had kept the Appellant's property for their own benefit. As I said I find this less probable for the entire period of 30 years. I actually do agree with the Appellant's counsel that the Tenancy Agreements disclosed by Shell support require a much higher valuation than what the valuers of the Respondents state in their reports. For example, one of the tenants in those agreements occupied only a part of the premises for six years and the tota-l rent paid for those six years is over UShs. 100,OOO,00O (Uganda Shillings One Hundred Million) and when interest is added on top it would come to around UShs 160,000,000. Page 83 of 91 l0 l5 20 In the circumstances I agree with the submission of Counsel for the Respondent that the court is the expert of all experts and I will go ahead to apply my expertise in assessment of mesne profits. I find the sums assessed by the Valuers of the Appellant to be the more appropriate assessment of the mesne Profits that is UShs 11,876,691,288 Uganda shillings eleuen billion, eight-hundred seuentg-six million six-hundred ninetA-one thousand, two-hundred eightg-eight). However, taking into consideration the inconsistencies in the evidence of the true number of tenants who rented the premises over the years I would deduct as sum in the region of 30% of that amount which would have gone into the normal costs of doing business including inflation and the possibility of loss, taxes among others. In the result I would award 8,000,000,000= as mesne profits in the instant case as adequate and fair compensation to the Appellant for the wrong done by the Respondent. Generql Damages In Supreme Court tn Ctuil Appeal No.77 of 2O2O Surglpho,tzn Uganda Ltd as Anatoll Batq.bqne it was stated and I agree that the court in awarding general damages under a repudiated contract is guided by the value of the contract at the time of its performance. It is also trite law that an appellate court will not interfere with an award of damages by a trial court unless the trial court has acted upon a wrong principle of law or that the amount is so high or so low as to make it an entirely erroneous estimate of the damages to Page 84 of 91 IO r5 20 25 ) which the plaintiff is entitled see Robert Coussens vs Attorneg General SCC/I No.8 of 7999 and Crown Beuerages Ltd as Sendu Ed,utard. SCCA No.1 of 2OO5. The amount of the general damages to be awarded to a plaintiff is a matter of judicial discretion. General damages in a breach of contract claim are what a court may award when the court cannot point out any measure by which they are to be assessed except the opinion and judgment of a reasonable man see Asuman Mutekangaa Equator Growers (U) Ltd SCC/I No.O7 oJ 1995. ln Klbimbo. Rlce Linlted as Umqr Salim SCCA No.77 of 1992 this court held that in assessing the quantum of damages courts are guided by the value of the subject matter and the economic inconvenience that a party may have been put through. Genera-l Damages do recognize the rationale for such a claim as was aptly stated in VoL 12 HalsDz.try's Lanus, 4th Edltion, para. 72O2 as follows: "Damages are peanniary recompense giuen bg process of law to a person for the actionable wrong that another has done to him." Page 85 of 91 I0 t5 ?1) In the instant case, having established an actionable wrong by the Defendant as against the Plaintiff, it does follow that the Plaintiff is entitled to recompense for the damage, loss or injury suffered by them. j l0 l5 l5 Relying on the principles I have herein above outlined I find that in the instant case the sum of UShs. 500,00O,OO0 is appropriate award of general damages. The appellant has had to go through the inconvenience of behg pr.{rrg its money for 30 years with the Respondent being adamant. The Respondent and its predecessors have put up dishonest and untransparent defences, they have made unreliable declarations of the income they have earned from the suit property including the unbelievable claim that the upper floors of the suit property were not rented out at all. They have made many attempts to even reverse facts which they had admitted on the court record thereby leading to unnecessary litigation. Therefore, this conduct and the actions of the Respondent and its predecessors in title definitely occasioned a \rrong against the appellant which equity dictates ought not go without a remedy. The Court of Appeal had awarded appellant UShs. 50,000,000 as general damages which is about 32o/o of what it had awarded as Mesne Profits. I however, find an award of UShs. 500,000,000 as general damages fair and adequate in the circumstances of this case. This in my assessment would assist the appellant restore themselves to the position they would have been in had this unfortunate dispute not happened and compensate them for the pain suffering and impact of the breach of trust by the Respondents. IntcresL ln Supreme Courl Ciull Appeal No.77 of 2O2O Surglphartn Uganda Ltd as Anqtoll Bqtabane it was stated and I agree that Page 86 of 91 ?c) 5 section 26 (21 of the Civil Procedure Act guides on the award of interest and states as follows; Where and inso a r as c, decree ls r the nto ,rtotteu. the court mqu. 7n the decree , order interest at such rqte qs the court deem-s req.sona.ble to be pqid on the principal sutn adfudqed from the date of the suit to the date af the decree, in qddition to anu interest adludged instihttion af the suit, with.furAher interest at such rate as the court, deem,s reasonable on the aggregate sum so ed the date o the decree to the date o paument or to such earller date as the court thinks fit. (3) Where such a decree is silenf with respect to the pagment of further interest on the aggregate sum specified in subsection (2) from the date of the decree to the date of pagment or other earlier date, the court shall be deemed to hq"ue ordered interest at 6 percent per gear." The above provision specifically subsection (2) thereof shows that interest can be awarded at the court's discretion. ln Premchandra lo l5 20 25 Page 87 of 91 "26. Interest (1) Where an agreement for the pagment of interest is sought to be enforced, and the court is of opinion thot the rate agreed to be paid is harsh and unconscionable and ought not to be enforced bg legal process, the couri mag giue judgment for the pagment of interest at such rate as it mag think just. on such ptlnclool surll for crnu perlod. prior to the 5 Shenoi & Another as Mqxlmor SCCA iVo.3I of 2OO3 this court stated the principle on award of interest on damages as follows; "In consideing uhat rate of interest the respondent should haue been autarded in the instant case, I agree that the pinciple applied bg this court in Sietco's case to the elfect that it is a matter of the court's discretionis applicable..." In Muklsa Bisuits Manufacturlng Co. Ltd. a West End Dlstributors Ltd. (No.2) [19701 EA 469 at page 475 Spry Iz.Pheld that interest on special damages is awarded from the date of filing of the suit until payment. In contrast interest on general damages is awarded from the date of judgment until payment in full. The court had this to say about the matter; "...u)here a person is entitled to a liquidated amount or to specific goods and has been depriued of them through the wrongfuI act of another person, he should be atuarded interest from the date of filing the suit. Where, hotueuer, damages haue been assessed bg the court, the ight to those damages does not artse until theg are assessed and therefore interest is onlg giuen from the date of judgment. [See also: Hlrfi a Modessrz [1964 EA 724 (cA)]', On the issue of the rate of interest to be awarded, it is left to the discretion of the court. However, that discretion ought to be exercised judicially or judiciously by giving reasons for the award made and an assessment of supporting evidence presented before it. l5 l0 Page 88 of 91 t0 : Section 26(3) of tlrc Ctall Procedure Act appears to give the court rate of interest to be 60/o which is the ideal. In my assessment the instant case warrants the award of a simple interest and I award the same at 60/o at court rate on the General damages from the date of this Judgment until payment in full. I also award a simple interest on the mesne profits at ha-lf the Court rate (3o/o per annum) from the date of filing the Miscellaneous Application No.833 of 2006 until payment in full because the decision of the High Court which led to the Appeal in the Court of Appeal arose from that Miscellaneous Application No.833 of 2006. Costs of the Suit. It is settled law that costs of any action, cause or matter shall follow the event unless the court or judge sha-ll for good reason otherwise order. The award of costs to the winning pa-rty must follow the win in absence any good reason. Having found merit in the appeal I award the appellant costs of this appeal and in the courts below. For the reasons I have given I would allow this appeal with the following orders; 7. The appedl uthollg succeeds on qll grounds oJ appeal o;nd ls qllouted Page 89 of 91 l0 l5 l0 Conclusion. 5 2. The Judgment and orders of the Htgh Court and Court of Appeal are srabstltrttedfor the Judgment of thts Court. 3. Trw Appellant is autqrded mesne proffts of UShs 8,OOO,OOO,OOO (Uganda Shllllngs Etght Blllion) 4. The Appellant ls aunrded general damages o/ UShs SOO,OOO,OOO (Ugand.a Shillings Fkrc Hundred lfiillion) 5. Tru Appellant ls quqrded lnterest on the mesne profits at slmple Tntcrest of 3% per o;tnum from the date oJ filtng tE Miscellaneous Appllcatlon IVo.833 of 2O06 until pagment tn full because tlrc declslon of tlw Hlgh Courf uthlch led to the Appeal ln the Court of Appeal arose trom thqt ltliscellaneous Appllcatlon l\Io.833 of 2006. 6. The Appellant is qwqrded lntcrest ort the general damages at slmple lnterest of 60/o per o;n;nu',n from the datz of thts Judgment untll payment tn full becquse general damages ane not due untll ausrded bg courA. 7. The Appellant is awarded the taxed costs o/ thls oppeal qnd in the courls belout. t0 I so order. Dated this 2024 day of ,-[ l0 Page 90 of 91 t5 Nth t t Stephen Musota WSTICE OF SUPREME COI'RT Page 91 of 91 5 THE REPUBLIC OF UGANDA, IN THE SUPREME COURT OF UGANDA AT KAMPALA (CORAM: TUHAISE; MUSOKE; MUSOTA; MADRAMA; BAMUGEMEREIRE JJSC) CIVIL APPEAL N0.18 OF 2022 10 APPELLANT VERSUS VIVO ENERGY UGANDA LIMITED} RESPONDENT 15 (Arising from Judgment of the Court of Appeal in Civil Appeal No.l07 of 2017; Kiryabwire, JJA and Kasule Ag. JA; delivered on 2Oh Decemben 202h JUDGMENT OF CHRISTOPHER MADRAMA IZAMA, JSC I have had the benef it of reading in draft the judgment of my learned brother Musota, JSC and I concur with the.ludgment and orders he has proposed. Further white I concur with my learned brother that the appeal raises questions of [aw. The issue of whether section 72 of the civil Procedure Act appties to the supreme court was resotved by this court in Kateeba and 3 others vs Mugyenzi and 2 others Supreme court civit Appeat No. 10 of 2023 (2025) UGSC 6 (21 Feb 2025), Justrce Mugenyi, with the concurrence of the majority expticitty overruted an objection to that appeal on the ground that section 72(1) of the cPA barred the supreme court from considering questions of mrxed [aw and fact. The historical anatysis of the Ugandan judiciary, distinguished between the pre-1995 Supreme court (which was essentiaLl.y the Court of Appeat and thus Section 72 appLied to it as a second appettate court) and the post-1995 Supreme court established by the 1995 constitution. The Judicature Act, cap. 16, enacted to operationaLize the 1995 Constitution, delineates the Supreme Court's jurisdiction, and specificatty, section 6(1) of the Judicature Act, read witlr Rul.e 30(1) of the supreme court 20 ,q 30 1 THALT0N TNTERNATT0NAL LTMTTED) Rutes, aLtows for the determination of "matters of law or mixed law and fact,, on second appeal.. lt was expticitLy hetd that section 72 of the cPA retates to second appeal.s to lhe Court of Appeal as it existed historicatl'y. whiLe I dissented from this, the converging point between my judgment and the Lead judgment is the practical. real.ity of what constitutes an acceptabte ground for a second appeal. in civiL matters. The court hetd that the "entry point,' for a civit appeat in the supreme court must, in essence, be a matter of law or a fundamentat tega[ principl.e that has been misapptied or disregarded by the lower appettate court. ln the tead judgment, Mugenyi JSC having stated that the supreme court can entertain "matters of taw or mixed law and fact," quatified this by etaborating on what amounts to a "question of [aw" on second appeat. She states that a question of law arises where the first appettate court "reneged on its duty to subject the evidence to fresh scrutiny or, having done so, misdirected itseLf on a point of Law in its re-evatuation of the evidence". Further, that "where the conctusions (inctuding findings of fact) arrived at by the first appel.Late court are not supported by the evidence," this is a question of [aw. This is because "there are estabtished tegat principtes and evidentiaL rul.es that guide first appettate courts in their re-evatuation of evidence. A departure from these principles and rutes thus becomes a question of [aw and not fact". This effectively means that even if a ground of appeaL appears to be "mixed [aw and fact," its acceptance by the Supreme Courthingesonidentifyingategaterrorinthefirstappetl.atecourt's handting of the facts. lnmyjudgmentinKateebaand3OthersvsMugyenziand2Others(supra) errors of Law which may found a basis for an appeaL to the Supreme Court in any civiI matter inctude: 1)Faitureofthefirstappettatecourttore-evaluatetheevidence proPertY. 2) A finding of fact not supported by any credibte evidence' 10 15 20 30 2. on the merits. 4) Ptacing the onus on the wrong party 5) Discarding admissibte evidence. 6) Fail.ure to consider a material issue. Uttimatety, though it was hetd that section 72 of the civil Procedure Act does not appty to the Supreme Court, second appeats in civiL matters before the Supreme Court of Uganda, must, in essence, have as their entry point a matter of law or a principte of [aw. The Supreme Court is not a court for re- trying facts in the same way a first appeLtate court does. When the Supreme Court reviews factual findings in a second appeat, it does so not to re- evatuate the evidence de novo, but rather to ascertain whether the first appetl.ate court committed an error of law in its handting or evatuation of those facts. This coutd be a misdirection on Legat principtes, a faiture to appty estabtished Legat duties (Like re-evatuation of evidence), or arriving at a factuat conctusion that is entirety unsupported by any credibLe evidence, which in itsetf is considered a question of [aw. ln a second appeal. in a civiL matter, the supreme court must identify a Legat ftaw in the decision-making process of the f irst appettate court, rather than merety a contest of its factuaI findings. ln the premises, I concur with my learned Brother Musota JSC that the current appeal. raises questions of [aw. These matters of [aw were set out and determined by my tearned brother Musota, JSC. I have read the judgment and reasons advanced by my learned brother Musota, JSC on issues set out and I have nothing further to add. Dated at Kampata tne /9rtaY or ,Lulv- zozs Christopher Madrama lzama Justice of the SuPreme Court 10 15 25 30 3 3) A substantial error or defect in procedure that affected the decision 20 THE REPI'BLIC OF UGANDA IN THE SI'PREME COURT OF UGANDA AT I(AMPALA CTVIL APPEAL NO.18 OF 20.22 CORAM: Tuhatse ; Iulusolee ; Musota; Ma.drama; Bamug emerelre,LJSC. THALION INTERNATIONAL LIMITED APPELLANT \rERSUS VIVO ENERGY UGANDA LIMITED: : : : : : : : : : : : : : : : : : : : : : : : :RESPONDENT [Artstng fron Judgmcnt of Klryabutrc, Mugengl, ,.tIA and Ka.sule Ag. JA ln Ctutl Appeal No.IOZ ol 2O77; dellvercd at Ka npala on 2(|a Decentber, 20271 JUDGMENT OF CATHERINE BAMUGEMEREIRE JSC I have had the privilege of reading, in draft, the Judgment of my learned brother Stephen Musota, JSC. I agree with his reasoning, decision and orders. I would allow the appeal with costs in this court arld the courts below. Catherine Bamugemereire Justice of the Supreme Court )u***rt Ch^^^k's Pk* o(* f- lati 1", Neb' \taxt &q- ry I THE REPUBLIC OF UGAI{DA IN THE SUPRIME COURT OF UGANDA AT I(AMPALA CIVIL APPEAL NO.18 OF 2022 CORAM: Tuhrrtse ; Musoke ; Musota; Iuladrama; Bamug emereire,I.ISC. VERSUS VIVO ENERGY UGANDA LIMITED RESPONDENT [Arlslng from Jud.gnant oJ Klryo.buitz, Mugengl, .LIA and Kasule Ag, JA ln Clull Appeal No.7O7 oJ 2O77; detluered at Ka,mpala on 2(Ia December, 2O271 JUDGMENT OF CATHERINE BAMUGEMEREIRE JSC I have had the privilege of reading, in draft, the Judgment of my learned brother Stephen Musota, JSC. I agree with his reasoning, decision and orders. Catherine Bamugemereire Justice of the Supreme Court 4f* fu"1**' i^ cl^s^')b'A ffr, ,lafi & ae -&= THALION INTERNATIONAL LIMITED: : : : : : : : : : : : : : : : : : : : : : : :APPELLANT I would allow the appeal with costs in this court and the courts below. t THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF'UGANDA AT KAMPALA CTVIL APPEAL NO.18 OF 20.22 CORAM: Tuhatse; Musolce; Musota; Madrama; Bamugemereire,IISC. THALION INTERNATIONAL LIMITED: : : : : : : : : : : : : : : : : : : : : : : :APPELLANT VERSUS RESPONDENT [At'lstng from Judgmcnt of Klryabwtrc, Mugeagl,,]IA and Kas;tle Ag. JA ln Ctutl Appeal No.IOZ ol2077; delluercd at Kampalo on 2@h Decemhcr' 20271 JUDGMENT OF CATHERINE BAMUGEMEREIRI JSC I have had the privilege of reading, in draft, the Judgment of my learned brother Stephen Musota, JSC. I agree with his reasoning, decision and orders. I would allow the appeal with costs in this court and the courts below. Catherine Bamugemereire Justice of the Supreme Court (f- q1 ( lv1 2p r\r\a J) ..)l,1/ v:lSl"'\X a--)'g>r"5".,4- W eY- )tr lene 4,-l ,yAr{, E<- VTVO ENERGY UGANDA LIMITED:::::::::: 6