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

High Court · [2005] UGCOMMC 85 · 2005 Judgment for Plaintiff; Counterclaim Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance consolidated civil suit arising from a sub-lease dispute and subsequent distress for rent, originally comprising multiple applications from the High Court and Mengo Chief Magistrate's Court
Decision
Judgment for the plaintiff with damages awarded for wrongful distress; counterclaim partly allowed with first defendant awarded outstanding rent, some costs, and general damages for breach of contract

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Holding

The court held that the distress for rent was both illegal and irregular. While the plaintiff owed rent of US$18,000, the certificate of distress was defective (misdescribed the premises) and unenforceable. The landlord had no legal right under Ugandan law to pursue and seize the tenant's property off the demised premises at Nalukolongo. The court declared the defendants trespassed on the plaintiff's properties and awarded damages of UGX 68,800,000 for the wrongful distress, plus general damages of UGX 12,000,000. The court found repairs worth US$14,387 had been effected and that "substantial" in the sub-lease meant large or considerable repairs.

Outcome

Judgment for the plaintiff with damages awarded for wrongful distress; counterclaim partly allowed with first defendant awarded outstanding rent, some costs, and general damages for breach of contract

Facts

On 6 September 1995, the plaintiff and first defendant entered a four-year sub-lease agreement for property at Bunamwaya, Kampala. The agreement authorised the plaintiff to repair the premises and be reimbursed by rent abatement or price adjustment if purchasing. The plaintiff effected repairs but parties could not agree on their value (plaintiff claimed US$42,600; defendant's valuer assessed US$14,387). In the final lease year, the plaintiff withheld rent demanding reimbursement for repairs. The first defendant instructed lawyers to levy distress for US$18,000 rent arrears. On 3 September 1999, the second defendant obtained a certificate of distress from Mengo Chief Magistrate's Court, but by then the plaintiff had moved property to Plot 682 and 684 Nalukolongo. The second defendant pursued and attached vehicles and equipment at Nalukolongo, then advertised them for sale. The plaintiff obtained an interim order stopping the sale, triggering multiple legal actions 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 trespassed on the plaintiff's divers properties.
  • Damages of UGX 68,800,000 awarded to the plaintiff for wrongful distress.
  • General damages of UGX 12,000,000 awarded to the plaintiff.
  • Interest at 15% per annum on general damages from date of filing suit.
  • Interest at 15% per annum on costs from date of judgment.
  • Special damages of UGX 66,000,000 for assorted items dismissed.
  • Application for punitive/exemplary damages of UGX 100,000,000 dismissed.
  • Application for permanent injunction dismissed as overtaken by events.
  • First defendant awarded outstanding rent of US$18,000.
  • First defendant awarded costs of counterclaim comprising UGX 207,800 and US$2,698.93.
  • First defendant awarded general damages of UGX 5,000,000 for breach of contract.
  • Interest at 15% per annum awarded to first defendant.
  • Costs of the counterclaim awarded to the first defendant.
  • First defendant's claim for costs of rectifying damage and restoring land dismissed.

Rules and key headnotes

Interpretation of Contract Terms — Meaning of 'Substantial'
In the absence of an exclusion clause requiring special interpretation, the word 'substantial' in a contract term describing the state of disrepair of premises should be given its natural, plain and literal dictionary meaning of 'large in amount or value; considerable'.
Repairs versus Improvements — Contractual Distinction
A contractual provision authorising reimbursement for 'repairs' does not extend to improvements. 'Repair' means to put back in good condition after damage, to renew, to restore, or to revive. Works such as grading and creating additional parking for heavy equipment constitute improvements, not repairs, and fall outside a covenant for reimbursement of repair costs.
Distress for Rent — Defective Certificate
A certificate of distress that misdescribes the demised premises is defective and unenforceable. A misdescription is fatal to a distress action because it could cause a miscarriage of justice if the bailiff levies distress on the wrongly described property, and entitles the tenant to resist the distress.
Distress for Rent — Pursuit of Property Off Demised Premises
In Uganda, a landlord has no legal right under the Distress for Rent (Bailiffs) Act to pursue and seize a tenant's moveable property outside the demised premises, even where the tenant has allegedly removed the property fraudulently or clandestinely. The common law exception permitting such pursuit (enacted by statute in England under the Distress for Rent Act 1737) has no equivalent in Ugandan law.
Distress for Rent — Illegal and Irregular Distress
At common law, no distinction exists between an illegal distress and an irregular distress; both constitute illegal distress. In Uganda, where there is no statutory equivalent to the English Distress for Rent Act 1737 s.19, the common law position applies: an irregular distress (where subsequent proceedings are conducted unlawfully) is also an illegal distress.
Trespass to Goods — Immunity of Bailiffs under Distress for Rent
A bailiff acting under the Distress for Rent (Bailiffs) Act cannot claim immunity for their actions. A bailiff levying distress for rent remains an agent of the landlord who employs them and does not act judicially.
Measure of Damages for Wrongful Distress
The normal measure of damages for illegal distress is the value of the goods illegally distrained. An action for illegal distress is an action in trespass to goods, and the claimant may sue in trespass to goods, conversion, or generally in trespass to land. The appropriate measure is the market value of the goods in serviceable and roadworthy condition at the date of the wrongful distress.

Legislation cited (9)

Cases cited (6)

  • Tumushabe v Anglo-African Ltd and Another (Supreme Court Civil Appeal No. 79 of 1999)
  • Omer Saleh Audalih and another Vs. A. Besse and Co. (Aden) Limited [1960] EA 907
  • Chidan Official Receiver Vs. Reg's Property Co. Limited [1941] 3 ALL E.R 491
  • The Estate of Shamji Visram & Anor Vs. Shankeprasad Bhatt & other [1965] EA 789 (EACA)
  • Bawa Vs. Singh [1961] EA 282
  • James Kabatraine 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 85 (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.