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Erukana v Vasrambhai (Civil Appeal 2 of 2002)

Supreme Court · [2002] UGSC 48 · 2002 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second appeal to the Supreme Court from a Court of Appeal decision upholding the High Court's dismissal of the appellant's civil suit and grant of relief against forfeiture to the respondent.
Decision
Appeal allowed; lower court judgments set aside and the appellant's suit allowed with a declaration of lawful re-entry, a permanent injunction, and an order directing the Registrar of Titles to note the re-entry.

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Holding

The Supreme Court allowed the appeal. It held that under section 184 of the Registration of Titles Act a lessee cannot bring an action of ejectment or recovery of land, whether by suit or counterclaim, against a registered lessor, and that a lawful re-entry terminates the lease even where the Registrar of Titles refuses to note it. By terminating the existing tenancy and letting the property to his own tenant, the appellant lawfully re-entered and took constructive possession. Relief against forfeiture under section 27 of the Judicature Statute is available only for non-payment of rent; where that written law applies, the equitable jurisdiction under sections 16(2) and 35 cannot be invoked to relieve breaches of other covenants.

Facts

The appellant was the registered proprietor of land at Mulago, Kampala. In 1968 he leased it for 49 years to the respondent's predecessor, the property then being undeveloped; a residential house was later built on it. The lease contained covenants to pay annual rent, to keep the property in good and tenantable repair, and not to sublet without the lessor's written consent, with a re-entry clause on breach. The lessee was expelled from Uganda in 1972 and the property vested in the Departed Asians Property Custodian Board; it was repossessed in 1993 under the Expropriated Properties Act. The lessee's agent sublet the property to Hassan. The appellant gave Hassan notice to vacate, then let the property to Hassan under a new tenancy, and applied to the Registrar of Titles to note his re-entry; the Registrar refused. It was common ground that the lessee had breached the covenants on rent, repair, and subletting, entitling the lessor to re-enter.

Issues

  1. Whether section 184 of the Registration of Titles Act precluded the respondent lessee from seeking, by counterclaim, to recover or retain possession of the land as against the appellant who was the registered proprietor.
  2. Whether there had been a lawful re-entry terminating the lease, notwithstanding the Registrar of Titles' refusal to note the re-entry in the register.
  3. Whether the High Court had jurisdiction to grant relief against forfeiture for breaches of covenants other than non-payment of rent under sections 27, 16(2) and 35 of the Judicature Statute 1996.

Orders

  • Appeal allowed.
  • Judgments and orders of the High Court and the Court of Appeal set aside.
  • Declaration that the appellant has lawfully re-entered the suit property and terminated the respondent's lease.
  • Permanent injunction restraining the respondent from evicting the appellant's tenant from the suit property.
  • Registrar of Titles ordered to note the appellant's re-entry of the suit property in the register.
  • Costs of the suit and of the appeals awarded to the appellant.

Key headnotes

Land & Property — Leases — Registration of Titles Act s.184 — Bar on lessee's action against a registered lessor
Under section 184 of the Registration of Titles Act a lessee is precluded from bringing any action of ejectment or recovery of land, whether by suit or by counterclaim, against a lessor who is registered as proprietor of the land.
Land & Property — Leases — Re-entry — Effect of lawful re-entry and refusal of the Registrar to note it
A lawful re-entry by the lessor terminates the lease as between lessor and lessee, and a refusal by the Registrar of Titles to note the re-entry in the register does not keep the lease subsisting.
Land & Property — Leases — Re-entry — Constructive possession
A lessor effects a lawful re-entry and takes constructive possession of the demised property where, on breach of covenants, he terminates the existing sub-tenancy and lets the property to a tenant of his own, even without physically occupying it.
Statutory Interpretation — Judicature Statute s.27 — Scope of relief against forfeiture
Section 27 of the Judicature Statute 1996 confers jurisdiction on the High Court to grant relief against forfeiture only for non-payment of rent, and not for the breach of other covenants in a lease.
Statutory Interpretation — Judicature Statute s.16(2) and s.35 — Equity subordinate to applicable written law
Where an express written law applies to a matter in issue, the High Court may exercise its jurisdiction only in conformity with that written law; the doctrines of equity under section 16(2) and the remedial power under section 35 of the Judicature Statute cannot be used to grant a remedy that the applicable written law withholds.
Contract Law — Leases — Forfeiture clauses — Enforcement of freely agreed terms
Where parties have freely and lawfully agreed to a forfeiture clause in a lease with knowledge of its effect, the court is bound to enforce the terms of the agreement according to the principles of the law of contract.

Legislation cited (8)

  • Registration of Titles Act (Cap 205) s.184
  • Registration of Titles Act (Cap 205) s.102
  • Judicature Statute 1996 s.27
  • Judicature Statute 1996 s.16(2)
  • Judicature Statute 1996 s.35
  • Expropriated Properties Act 1982
  • Assets of Departed Asians Decree 1973
  • Conveyancing Act 1881 (England) s.14

Cases cited (8)

  • The Executrix of the Estate of the Late Christine Mary Namatovu Tebajjukira and Another v Noel Grace Shalita Stananzi (Civil Appeal No. 2 of 1988)
  • Francis Butagira v Deborah Namukasa (Civil Appeal No. 6 of 1989)
  • Lugogo Coffee Co. Ltd v Singo Combined Growers Ltd (1976) HCB 92
  • Hyman and Another v Rose [1912] AC 632
  • Gill & Another v Lewis & Another [1956] 1 All ER 844
  • Barrow v Isaacs & Son [1891] 1 QB 417
  • Billson and Others v Residential Apartments Ltd [1992] AC 494
  • Mbogo and Another v Shah [1968] EA 93
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.