Wakilii

Assist. (U) Limited v Italian Asphalt and Haulage Limited and Another (Civil Suit 1291 of 1999)

High Court · [2005] UGCOMMC 86 · 2005 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Consolidated civil suit arising from distress for rent proceedings, originally filed as Civil Suit 1291 of 1999 and consolidated with Mengo Chief Magistrates Court Misc. Application 424 of 1999
Decision
Main claim allowed in part with damages awarded to plaintiff for wrongful distress. Counterclaim allowed in part with first defendant awarded rent arrears, special damages, and general damages for breach of contract.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the distress for rent levied by defendants was illegal and irregular because the certificate misdescribed the demised premises and the bailiff had no legal right to pursue and seize the tenant's property off the demised premises. The term 'substantial repairs' in the sub-lease agreement must be given its plain and literal meaning of large in amount or considerable. The plaintiff was awarded damages for wrongful distress valued at UGX 68,800,000 plus general damages of UGX 12,000,000. The first defendant was awarded rent arrears of USD 18,000.

Outcome

Main claim allowed in part with damages awarded to plaintiff for wrongful distress. Counterclaim allowed in part with first defendant awarded rent arrears, special damages, and general damages for breach of contract.

Facts

On 6 September 1995, the plaintiff and first defendant entered into a sub-lease agreement for property at Bunamwaya, Kampala for four years. The agreement provided that the premises required substantial repairs, which the plaintiff was authorized to effect, with costs to be reimbursed by way of rent abatement or valuation adjustment. Disputes arose over the value of repairs — plaintiff claimed USD 42,600 while defendant's valuers assessed USD 14,387. When the plaintiff withheld rent seeking reimbursement, the first defendant instructed the second defendant (bailiff) to levy distress. The certificate of distress was issued on 3 September 1999, but by then the plaintiff had moved property from Bunamwaya to Plot 682 and 684 Nalukolongo Industrial Area. The second defendant pursued and levied distress at the new location, attaching vehicles and equipment. Multiple legal actions followed which were later consolidated into this suit.

Issues

  1. What was the extent of disrepair of the premises at the time when the plaintiff took possession?
  2. What was the extent of the improvements/repairs undertaken by the plaintiff?
  3. Whether the distress executed by the defendants was lawful/regular in the circumstances?
  4. What items were attached by the defendants and what was their value?
  5. Whether any property of the plaintiff was misplaced, lost or converted during the execution of the certificate of distress?
  6. Where did the attachment actually take place?
  7. Whether the plaintiff owes rent to the first defendant and if so what is the quantum?
  8. Whether the defendants trespassed on plot Nos. 682 and 648 at Nalukolongo?
  9. Whether the plaintiff breached the sub-lease agreement?
  10. Whether the first defendant breached the sub-lease agreement?
  11. Whether the plaintiffs damaged the first defendant's property, if so, to what extent?
  12. Whether the parties are entitled to the reliefs claimed?

Orders

  • Declaration that the defendants committed trespass on the plaintiff's divers properties.
  • Plaintiff awarded damages of UGX 68,800,000 being the value of wrongfully distrained goods.
  • Plaintiff awarded general damages of UGX 12,000,000.
  • Plaintiff awarded interest at 15% per annum on general damages from date of filing suit and on costs from date of judgment.
  • Plaintiff awarded costs of the main suit.
  • First defendant awarded rent arrears of USD 18,000.
  • First defendant awarded special damages of USD 2,698.93 and UGX 207,800.
  • First defendant awarded general damages of UGX 5,000,000 for breach of contract.
  • First defendant awarded interest at 15% per annum.
  • First defendant awarded costs of the counterclaim.

Rules and key headnotes

Contract Interpretation — Plain and Literal Meaning Rule — Technical or Special Sense
Where a term in a contract is not defined and there is no evidence that the parties intended it to bear a technical or special sense, the court must give the term its natural, plain and literal meaning as understood in ordinary usage.
Contra Proferentem Rule — Application — Exclusion Clauses
The contra proferentem rule is normally used by courts to interpret exclusion clauses restrictively against the person relying on them. It does not apply to ordinary contractual terms agreed upon by the parties that are not exclusion clauses.
Distress for Rent — Lawful Execution — Pursuit of Goods Beyond Demised Premises
Under Ugandan law, the general rule is that distress can only be made of goods found on the premises out of which the rent issues. A landlord has no statutory right to pursue and seize a tenant's moveable property beyond the demised premises, even where the tenant has removed goods to prevent distress, absent express agreement or specific statutory authority.
Distress for Rent — Certificate of Distress — Misdescription of Premises — Fatal Defect
A certificate of distress that misdescribes the demised premises is defective and not enforceable. A tenant is entitled under the Distress for Rent (Bailiffs) Rules to require production of the certificate and may resist distress where the certificate does not correctly describe the property.
Distress for Rent — Illegal and Irregular Distress — Distinction at Common Law
At common law, no distinction existed between illegal distress (wrongful from the outset) and irregular distress (lawful levy but unlawful subsequent proceedings). In the absence of statutory provision to the contrary, an irregular distress is an illegal distress.
Bailiffs and Auctioneers — Judicial Immunity — Distress for Rent
Bailiffs executing distress for rent remain agents of the landlord who employs them and do not act judicially. They cannot claim judicial immunity for their actions under the Distress for Rent (Bailiffs) Act.
Trespass to Goods — Wrongful Distress — Measure of Damages
An action for illegal distress is an action of trespass based upon a distress. The normal measure of damages for wrongful distress is the value of the goods illegally distrained, assessed at their market value in serviceable and roadworthy condition at the date of the distress where the goods were functional when seized.

Legislation cited (9)

  • Judicature Act s.33
  • Distress for Rent (Bailiffs) Act Cap 76
  • Distress for Rent (Bailiffs) Rules S.I. 68-1 s.2
  • Distress for Rent (Bailiffs) Rules S.I. 68-1 r.5
  • Distress for Rent (Bailiffs) Rules S.I. 68-1 r.6
  • Distress for Rent (Bailiffs) Rules S.I. 68-1 r.24
  • Civil Procedure Rules O.6 r.18
  • Civil Procedure Rules O.6 r.6
  • Civil Procedure Rules O.6 r.30

Cases cited (7)

  • Omer Saleh Audalih and Another v A. Besse and Co. (Aden) Limited [1960] EA 907
  • Lyans Vs. Elliot 1QBD (1876) 210 at 213
  • J. Tumushabe v M.S. Anglo-African Ltd and Another (Supreme Court Criminal Appeal No. 79 of 1999)
  • Chidan Official Receiver v Reo's Property Co. Limited [1941] 3 All ER 491
  • Estate of Shamii Visram and Another v Shankeprasad Bhatt and Other [1965] EA 789
  • Bawa v Singh [1961] EA 282
  • James Kabarrne Vs. Charles Oundo HCCS 177/94

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Assist. (U) Limited v Italian Asphalt and Haulage Limited and Another (Civil Suit 1291 of 1999) [2005] UGCommC 86 (24 February 2005)
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.