Wakilii

Kuwe v Vader (Civil Appeal No. 2 of 2002)

Supreme Court · [2002] UGSC 7 · 2002 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second appeal to the Supreme Court from the Court of Appeal, which had upheld the High Court's dismissal of the lessor's suit and grant of relief against forfeiture to the lessee
Decision
Appeal allowed; lower courts' decisions set aside and judgment entered for the appellant declaring lawful re-entry and termination of the lease, with a permanent injunction and an order for the Registrar of Titles to note the re-entry

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Holding

The Supreme Court allowed the appeal. A lawful re-entry by a lessor terminates the lease, and the Registrar of Titles' refusal to note the re-entry does not keep it subsisting; the lessor effected re-entry and took constructive possession by letting the property to a new tenant. Under section 184 of the Registration of Titles Act, a lessee cannot bring an action of ejectment or recovery of land against a lessor registered as proprietor, and the respondent's counter-claim for relief against forfeiture and possession was such a barred action. Section 27 of the Judicature Statute confines relief against forfeiture to non-payment of rent, and where that written law applied the court had no equitable jurisdiction under sections 16(2) and 35.

Facts

The appellant was the registered owner of leasehold land in Mulago, Kampala, which he leased to the respondent's predecessor in 1968 for 49 years. The lease bound the lessee to pay rent, maintain the property, and not sublet without the lessor's written consent. After the respondent's expulsion from Uganda in 1972, the property vested in the Departed Asian Property Custodian Board and was repossessed in 1993, after which the respondent's agent sublet it to a tenant, Mamtaz Hassan. The appellant, asserting breaches of the rent, repair and subletting covenants, gave Hassan notice to vacate and entered a fresh tenancy with him, then sought to note his re-entry. The Registrar of Titles declined to note the re-entry. The appellant sued for a declaration of lawful re-entry and termination of the lease; the respondent counter-claimed for relief against forfeiture and possession. The trial court found the breaches established but granted the respondent relief against forfeiture and dismissed the suit; the Court of Appeal upheld that decision.

Issues

  1. Whether section 184 of the Registration of Titles Act precluded the lessee from seeking, by counter-claim, ejectment of or recovery of land from the lessor registered as proprietor.
  2. Whether the lessor's lease was lawfully terminated by re-entry notwithstanding the Registrar of Titles' refusal to note the re-entry in the register.
  3. Whether the High Court had discretion to grant relief against forfeiture for breaches of covenants other than non-payment of rent.
  4. Whether the High Court could invoke the doctrines of equity under sections 16(2) and 35 of the Judicature Statute where an express written law (section 27) applied to the matter.

Orders

  • Appeal allowed with costs here and in the courts below.
  • Judgments and orders of the High Court and of the Court of Appeal set aside.
  • Declared that Erukana Kuwe, the plaintiff, has lawfully re-entered the suit property and terminated the defendant's lease thereof.
  • Vasrambhai Damji Vader restrained by permanent injunction from evicting the plaintiff's tenant from the suit property.
  • Registrar of Titles ordered to note Erukana Kuwe's re-entry of the suit property in the register.
  • Erukana Kuwe to have the costs of the suit.

Key headnotes

Land & Property — Leases — Re-entry and Termination — Effect of Registrar's Refusal to Note Re-entry
A lawful re-entry by a 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 by Letting to a New Tenant
A lessor effects a lawful re-entry and takes constructive possession of demised premises where, on the strength of the lessee's breaches, he terminates the lessee's subtenancy and lets the property to a new tenant, even without taking physical possession.
Land & Property — Registration of Titles Act s.184 — Bar on Lessee's Action Against 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 against a lessor registered as proprietor; a counter-claim by which a lessee seeks relief against forfeiture and possession is such a barred action.
Statutory Interpretation — Relief Against Forfeiture — Judicature Statute s.27 Confined to Non-payment of Rent
Section 27 of the Judicature Statute 1996 confines relief against forfeiture to cases of re-entry or forfeiture for non-payment of rent and does not extend to breaches of other lease covenants.
Statutory Interpretation — Jurisdiction in Equity — Judicature Statute s.16(2) — Equity Subordinate to Written Law
Where an express written law applies to a matter, the High Court must exercise its jurisdiction in conformity with that written law and has no jurisdiction to apply the doctrines or principles of equity under section 16(2) or section 35 of the Judicature Statute; equity applies only where written law does not extend or apply.
Civil Procedure — Appellate Review of Discretion — Discretion Exercised Without Jurisdiction
Where a trial court purports to exercise a discretion it does not possess, the question of an appellate court declining to disturb the exercise of that discretion does not arise.

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
  • Conveyancing Act 1881 (England) s.14
  • Expropriated Properties Act 1982
  • Assets of Departed Asians Decree 1973

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 v Rose [1912] AC 632
  • Gill v Lewis [1956] 1 All ER 844
  • Barrow v Isaacs & Son [1891] 1 QB 417
  • Billson v Residential Apartments Ltd [1992] 1 AC 494
  • Mbogo 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.