Wakilii

Absi v Kassim and Another (Civil Appeal No. 56 of 1956)

East African Court of Appeal · [1950] EACA 382 · 1950 Matter Remitted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from the Supreme Court of Aden concerning landlord and tenant dispute over specific performance of re-entry agreement
Decision
Matter remitted to Supreme Court to determine whether existing tenancy is lawful, which will determine whether specific performance can be ordered

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that in the case of an old-established business, restoration to the original identical site was of importance, and the appellant was entitled to a tenancy of premises on his original site with substantially the same floor area. The words 'on the ground floor' in the agreement did not alter the usual meaning of 're-entry' as re-entry on the same site previously occupied. The matter was remitted to the Supreme Court to determine whether the existing tenancy commenced before or after the suit was filed, as this determined whether it was lawful under section 52 of the Transfer of Property Ordinance and whether specific performance could be ordered.

Outcome

Matter remitted to Supreme Court to determine whether existing tenancy is lawful, which will determine whether specific performance can be ordered

Facts

The appellant was the tenant of the ground floor of one of four old houses where he operated an established laundryman business and hired out beds. The respondent landlords wished to demolish the four houses and erect one new building. They entered into a written agreement with the appellant providing for his re-entry on the ground floor of the reconstructed premises with specified dimensions (24 ft by 13 ft). When the new building was completed, the respondents offered the appellant a shop on the ground floor but not on his original site and with only approximately half the floor area of his original premises. The appellant refused this offer and sued for specific performance or damages. By the time of trial, all five shops on the ground floor had been let to other tenants. The Supreme Court held that the appellant was only entitled to premises somewhere on the ground floor and, as these were all let, declined to order specific performance but awarded £300 damages.

Issues

  1. Whether the agreement for re-entry entitled the appellant to premises on his original identical site or merely to any premises on the ground floor.
  2. Whether the words 'on the ground floor' in the re-entry agreement qualified the meaning of 're-entry' to mean anywhere on the ground floor.
  3. Whether a decree for specific performance could be granted where the premises had been let to other tenants.
  4. Whether the existing tenancy was lawful or unlawful under section 52 of the Transfer of Property Ordinance.

Orders

  • Matter remitted to the Supreme Court to determine the legality of the tenancy of the person in occupation.
  • If the occupation is unaffected by section 52, the appeal to stand dismissed with costs to the respondents.
  • If the tenancy is unlawful by reason of section 52, a decree of specific performance to be made in favour of the appellant.
  • If specific performance is ordered, the award of £200 for future damages to be replaced with a lesser sum representing damage between the first and second judgments.
  • The award of £100 for damage up to the date of the first judgment to stand.
  • Costs of the original trial to the appellant to stand.

Rules and key headnotes

Contract Law — Specific Performance — Landlord and Tenant — Re-entry Agreement — Interpretation of 'Re-entry on the Ground Floor'
In a landlord and tenant agreement for re-entry after reconstruction, the word 're-entry' in its usual meaning denotes re-entry into the exactly equivalent though reconstructed premises on the identical site previously occupied, and the addition of qualifying words such as 'on the ground floor' does not alter this meaning to permit re-entry anywhere on that floor where the context and surrounding circumstances indicate the parties intended restoration to the original site.
Statutory Interpretation — Evidence — Admissibility of Extrinsic Evidence — Ambiguous Contract Terms
Where a court takes one view of the meaning of contractual words and an appellate court takes an opposite view, this establishes that the words are at least ambiguous, and extrinsic evidence may be admissible to explain the parties' true intention.
Contract Law — Specific Performance — Transfer of Property — Effect of Section 52 on Subsequent Tenancies
Under section 52 of the Transfer of Property Ordinance, where a claim for specific performance of an executory agreement for a tenancy has been filed, the landlord's capacity to create a lawful tenancy in respect of the premises in issue is temporarily removed until final disposal of the suit, and any tenancy created after the filing of the suit is unlawful and not protected by rent restriction legislation.
Contract Law — Damages — Liquidated Damages — Effect Under Aden Contract Ordinance
Under section 70 of the Aden Contract Ordinance, a provision in a contract for liquidated damages operates only as a maximum limit of the damages which can be recovered, but does not excuse a plaintiff from proving his actual damage and does not enable him to recover more than he actually proves.
Land & Property — Landlord and Tenant — Business Premises — Importance of Original Site
In the case of an old-established business, restoration to the original identical site is of real importance, and a tenant is entitled to premises on his original site and of substantially the same floor area, not merely to any premises on the same floor of a reconstructed building.

Legislation cited (5)

  • Aden Evidence Ordinance s.100(f)
  • Aden Transfer of Property Ordinance s.52
  • Aden Contract Ordinance s.70
  • Aden Specific Relief Ordinance s.18
  • Aden Rent Restriction Ordinance

Cases cited (1)

  • Panchan v Kandhai (A.I.R. (1934) All. 713)

Full judgment

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Absi v Kassim and Another (Civil Appeal No. 56 of 1956) [1950] EACA 382 (1 January 1950)
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.