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Joy Tumushabe & Anoer v M S Anglo African Limited & anoer [1999] UGSC 5

Supreme Court · 1999 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second civil appeal from the Court of Appeal, which had confirmed a High Court decision dismissing the appellants' suit
Decision
Appeal partly allowed: distress for rent held unlawful and property ordered returned or compensated, but the eviction confirmed as lawful

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Holding

The Supreme Court held the distress for rent unlawful: by refusing to recognise the repossessing owner as landlord and refusing to pay rent, the appellants became trespassers, so no landlord-tenant relationship existed to support distress, which in any event was not levied by any person authorised under section 3 of the Distress for Rent (Bailiffs) Act. However, the eviction was lawful, because an owner may use reasonable force to remove a trespasser and may remove the trespasser's goods to leave the premises vacant. The Court of Appeal erred in failing to re-evaluate the evidence and to resolve all grounds, including the admissibility of an exhibit. The appeal partly succeeded; property removed was ordered returned or its value paid.

Facts

The suit premises on Plot No. 45 Ben Kiwanuka Street, Kampala, comprising a shop and a residential flat, were formerly Asian-owned and vested in the Departed Asians Property Custodian Board after the 1970s expulsions. The Board rented the flat to the 1st appellant and the shop to the 2nd appellant. In 1993 Laximidas Dalia obtained repossession and, living abroad, appointed the 1st respondent company to manage the property and later appointed its managing director, Rennie Richardson, as his personal attorney. The appellants, advised by their lawyer, refused to recognise Dalia as owner or to pay rent, and briefly obtained a temporary injunction against eviction, which was later vacated. In 1994 the 1st respondent authorised auctioneers to levy distress for rent and evict the appellants. With police support, the respondents entered the premises, took the appellants' property and evicted them. The appellants sued, claiming the respondents lacked capacity and legal authority to distrain or evict. The High Court dismissed the suit and the Court of Appeal confirmed that decision.

Issues

  1. Whether the distress for rent levied against the appellants and the seizure of their property were lawful under the Distress for Rent (Bailiffs) Act (Cap. 68).
  2. Whether the owner of the suit premises or his agents had power to evict the appellants and remove their property after the appellants became trespassers.
  3. Whether the Court of Appeal failed in its duty as first appellate court to re-evaluate the evidence and to consider and resolve all grounds of appeal, including the admissibility of an exhibit.

Orders

  • Appeal partially succeeds.
  • Property proved to have been removed and listed in accordance with the trial court's findings to be returned to the appellants, or its value paid to them by way of compensation.
  • The sum of one hundred shillings (UGX 100) awarded to the 1st appellant as general damages for the unlawful distress for rent.
  • The eviction of the appellants from the suit premises confirmed as lawful.
  • Appellants awarded one half of the costs of the appeal.

Key headnotes

Landlord and Tenant — Distress for Rent — Requirement of subsisting landlord-tenant relationship
Distress for rent is permissible only where a landlord-tenant relationship subsists between the parties; where a former tenant denies the owner's title and refuses to pay rent, the tenancy ceases and the occupant becomes a trespasser against whom distress for rent cannot lawfully be levied.
Distress for Rent (Bailiffs) Act (Cap. 68) s.3 — Persons authorised to levy distress
Under section 3 of the Distress for Rent (Bailiffs) Act, only a landlord in person, his attorney, the legal owner of the reversion, or a person holding a certificate in writing from a certifying officer may levy distress for rent; distress effected by a person outside these categories is illegal.
Agency — Power of Attorney — Personal grant to a director cannot be exercised by the company
A power of attorney granted personally to an individual cannot be exercised by a company merely because that individual is its director; the company is a distinct legal person and is not thereby constituted the donor's attorney.
Trespass to Land — Right of owner to evict trespasser and remove goods
An owner or person entitled to possession may request a trespasser to leave and, on refusal, remove him using no more force than is reasonably necessary, and may also remove the trespasser's goods so as to leave the premises vacant, without liability in damages for the force used.
Distress for Rent — Liability for unlawful distress — Bailiff and landlord as joint tortfeasors
Where a distress for rent is illegal, the bailiff is primarily liable, and the landlord is liable only where he sanctioned or ratified the bailiff's wrongful act; a landlord and bailiff carrying out an unlawful distress may be liable in trespass as joint tortfeasors.
First Appellate Court — Duty to re-evaluate evidence and resolve all grounds
A first appellate court has a duty to subject the trial evidence to fresh scrutiny and to consider and resolve every ground of appeal that, if left undecided, would leave a matter in the case unresolved; failure to do so entitles a second appellate court to re-evaluate the evidence itself.

Legislation cited (2)

  • Distress for Rent (Bailiffs) Act (Cap. 68) s.3
  • Rules of the Supreme Court r.81

Cases cited (11)

  • Souza Figueiredo & Co Ltd v George and Others (1959) E.A. 756
  • Kampala City v Nakaye (1972) E.A. 446
  • Banco Arabe Espanol v Bank of Uganda (Civil Appeal No. 8 of 1999)
  • Eastern Radio Service and Another v R.J Patel t/a Tiny Tots and Another (1962) E.A. 818
  • Kanji Naran Patel v Noor Essa and Another (1965) E.A. 484
  • Jackson v. Courteneou (1857) 8 E & B. 8, Ex. Ch.
  • Scott v Matthew Brown & Co Ltd (1884) 51 L.T. 746
  • Shaw v. Chairitle (185O) 3 Car. & Kir. 21
  • Hemmings v Stoke Poges Golf Club Limited and Another (1920) 1 K.B. 720 (C.A.)
  • Harvey v Bridges (1845) 14 M & W 437
  • Trevor Price and Another v Raymond Kelsall (1957) E.A. 752
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.