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Joy Tumushabe & Anor v MS Anglo African Ltd & Anor [2000] UGSC 20

Supreme Court · 2000 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second appeal to the Supreme Court from a Court of Appeal decision confirming a High Court judgment in a civil suit concerning the legality of distress for rent and eviction.
Decision
Appeal partially succeeded: distress for rent held unlawful with property to be returned or its value paid as compensation and UGX 100 general damages to the first appellant; the eviction was confirmed as lawful.

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Holding

The Supreme Court held that the distress for rent was unlawful: once the tenants refused to pay rent and to acknowledge the repossessing owner's title they became trespassers, so no landlord/tenant relationship subsisted to support distress, and in any event the persons who levied the distress were not landlord, attorney, reversioner or certified bailiffs under section 3 of the Distress for Rent (Bailiffs) Act. However, the eviction of the appellants as trespassers, and the removal of their goods using no more force than necessary, was lawful. The Court of Appeal had wrongly declined to determine grounds, including the admissibility of exhibit D1. Appeal partially allowed.

Facts

The suit premises on Plot 45 Ben Kiwanuka Street, Kampala, formerly owned by departed Asians, had vested in the Departed Asians Property Custodian Board, which let the residential flat to the first appellant and the shop to the second appellant. In 1993 Laximides Dalia obtained repossession and, living abroad, appointed the first respondent company (managing director Rennie Richardson) to manage the premises, and separately appointed Richardson personally as his attorney. The Board advised the tenants to deal with the new owner. The appellants, advised by counsel, refused to pay rent and challenged Dalia's title, obtaining a temporary injunction that was later vacated. The respondents then authorised Security Auctioneers to levy distress for rent against the appellants and, with police support, seized the appellants' property and effected eviction. The appellants sued, contending the respondents lacked capacity and lawful authority to distress or evict. The High Court dismissed the claim and the Court of Appeal confirmed that decision.

Issues

  1. Whether the distress for rent and seizure of the appellants' property was lawful.
  2. Whether the persons who levied the distress were qualified to do so under section 3 of the Distress for Rent (Bailiffs) Act.
  3. Whether the eviction of the appellants and the removal of their property from the suit premises was lawful.
  4. Whether the Court of Appeal erred in failing to consider and resolve all the grounds of appeal, including the admissibility of exhibit D1.

Orders

  • Appeal partially allowed.
  • Property proved to have been removed and listed per the trial court's findings to be returned to the appellants, or its value paid to them as compensation.
  • General damages of one hundred shillings (UGX 100) awarded to the first appellant for the unlawful distress for rent.
  • 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 only permissible where the relationship of landlord and tenant subsists between the parties; where a tenant refuses to pay rent and to acknowledge the title of a new owner who has lawfully repossessed the premises, the tenant becomes a trespasser and distress for rent can no longer lawfully be levied.
Distress for Rent (Bailiffs) Act s.3 — Persons authorised to levy distress
Under section 3 of the Distress for Rent (Bailiffs) Act, distress for rent may be levied only by the landlord in person, his attorney, the legal owner of the reversion, or a person authorised by a certificate in writing from a certifying officer; distress effected by any other person is unlawful.
Agency — Power of Attorney — Authority of company versus director
A power of attorney granted to an individual in his personal capacity does not vest that authority in a company of which he happens to be a director, and an agent cannot confer such a power on a juristic person; instructions given by the company to distress for rent are therefore unauthorised.
Trespass — Eviction of trespasser — Reasonable force and removal of goods
A person entitled to possession of property may request a trespasser to leave and, on refusal, remove him using no more force than is reasonably necessary, and may remove the trespasser's goods so as to leave the premises vacant, without incurring liability in damages.
Appeals — Duty of first appellate court to re-evaluate evidence
A first appellate court has a duty to subject the evidence to a fresh and exhaustive scrutiny; where it fails to do so, a second appellate court is entitled and bound to re-evaluate the evidence itself to prevent a miscarriage of justice.
Appeals — Duty to consider and resolve every material ground of appeal
A court must consider and resolve every ground of appeal whose determination could affect the outcome of the case, including questions of the admissibility of evidence; declining to do so on the assumption that the ground is merely remedial is a misdirection warranting appellate intervention.

Legislation cited (1)

  • Distress for Rent (Bailiffs) Act Cap. 68 s.3

Cases cited (13)

  • Souza Figueiredo & Co Ltd v George and Others [1959] E.A. 756
  • Kampala City Council 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 Courtenay (1857) 8 E&B 8
  • Scott v Matthew Brown & Co Ltd (1884) 51 L.T. 746
  • Shaw v Chairitle (1850) 3 Car. & Kir. 21
  • Hemmings v Stoke Poges Golf Club Ltd [1920] 1 K.B. 720 (C.A.)
  • Lows v Telford (1876) 1 App. Cas. 414
  • Jones v Chapman (1848) 2 Ex. 803
  • Harvey v Brydges (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.