Wakilii

Butagira v Namukasa (Civil Appeal No. 5 of 1989)

Supreme Court · [1990] UGSC 26 · 1990 Appeal Dismissed; Cross-Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal and cross-appeal from a judgment of the High Court (Kato J.)
Decision
Appeal dismissed and cross-appeal allowed; appellant ordered to pay the respondent's costs.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that failure to obtain the controlling authority's consent under s.22(5)(c) of the Public Lands Act renders a lease transfer voidable, not void, and that the implied covenant is enforceable only by the controlling authority, not the respondent lessor — so the second ground of appeal succeeded. The appeal was nonetheless dismissed: the appellant breached the covenant against subletting; relief against forfeiture under s.24 of the Judicature Act is confined to non-payment of rent; and a lessee cannot eject his lessor under s.184 of the Registration of Titles Act. The cross-appeal was allowed, including an order that the successful respondent recover her costs.

Outcome

Appeal dismissed and cross-appeal allowed; appellant ordered to pay the respondent's costs.

Facts

The appellant was the registered proprietor of leasehold property at Plot 12, Mbuya Hill, Kampala, held under a 49-year lease carved out of a freehold owned by Christine Mary Namatovu Tebajjukira. The lease passed through several transfers, reaching Buzabo, who transferred it to the appellant in December 1979. From December 1983 the appellant sublet the property to P. Averono without the lessor's consent and without paying rent. Tebajjukira died in 1984, appointing the respondent, her granddaughter, executrix of her will. The respondent obtained probate, became registered proprietor of the freehold, discovered the appellant had neither paid rent nor obtained consent to sublet, evicted the subtenant and re-entered. The appellant sued in the High Court seeking a declaration, mesne profits and an injunction; the respondent counterclaimed. The trial judge held the appellant had acquired the property unlawfully for want of consent, found him in breach of the rent covenant, dismissed the action and allowed part of the counterclaim.

Issues

  1. Whether the absence of the controlling authority's consent under s.22(5)(c) of the Public Lands Act rendered the transfer of the lease null and void or merely voidable.
  2. Whether the covenant against transfer or subletting without consent was enforceable by the respondent lessor or only by the controlling authority.
  3. Whether the appellant was entitled to relief against forfeiture of the lease.
  4. Whether the appellant's subletting of the suit property without consent constituted a breach of the lease covenant.
  5. Whether the trial judge properly exercised his discretion in declining to award costs to the successful respondent.
  6. Whether a lessee may bring an action to eject his lessor or recover land under s.184 of the Registration of Titles Act.

Orders

  • Appeal dismissed.
  • Cross-appeal allowed.
  • Appellant to pay the respondent half the costs of the appeal.
  • Appellant to pay the costs of the cross-appeal.
  • Appellant to pay the costs in the court below.

Rules and key headnotes

Land & Property — Leases — Statutory Consent — Effect of Absence of Consent
Failure to obtain the controlling authority's consent under s.22(5)(c) of the Public Lands Act before transferring a lease does not render the transfer null and void, but only voidable at the instance of the controlling authority.
Land & Property — Covenants — Enforcement — Controlling Authority
The covenant implied by s.22(5)(c) of the Public Lands Act against transfer or subletting without consent is enforceable only by the controlling authority and not by the lessor, who has no power to enforce the controlling authority's rights.
Land & Property — Forfeiture — Relief — Scope of s.24 Judicature Act
The court's power under s.24 of the Judicature Act to grant relief against forfeiture is confined to forfeiture for non-payment of rent and does not extend to forfeiture for breach of other covenants in a lease.
Land & Property — Forfeiture — Relief — Relevance of Tenant's Conduct
On an application for relief against forfeiture for non-payment of rent, the tenant's high-handed conduct is generally irrelevant; relief is ordinarily granted on payment of all rent and costs, save in exceptional cases or where third-party rights have intervened.
Land & Property — Registration of Titles — Ejectment of Lessor — s.184
A lessee cannot maintain an action for ejectment or recovery of land against his lessor; under s.184 of the Registration of Titles Act the production of the registered certificate of title is an absolute bar to such an action.
Civil Procedure — Costs — Discretion to Deprive Successful Party
Costs follow the event and a successful party may be deprived of costs only for good cause connected with misconduct or conduct leading to the litigation; the fact that both parties acted unreasonably is not good cause to deny the successful party costs.
Civil Procedure — Pleadings — General Prayer — Relief Against Forfeiture
Relief against forfeiture, though not specifically pleaded, may be considered under a general prayer for further or other relief where the issue of forfeiture was framed and canvassed at trial.

Legislation cited (13)

Cases cited (16)

  • Samuel Kizito Mubiru & Another v Byensiba (Civil Suit No. 513 of 1982)
  • Davenport v R (1878) 3 App Cas 115
  • Gill v Lewis (1956) 2 QB 844
  • Public Trustee v Westbrook (1965) 1 All ER 198
  • Chapman v Honig (1963) 2 QB 502
  • Tebajjukira v Stananzi (Civil Appeal No. 2 of 1968)
  • Kiska Ltd v De Angelis (1969) EA 6
  • Donald Campbell v Pollak (1927) AC 732
  • Sport International Bussum BV v Inter-Footwear Ltd (1984) 1 All ER 325
  • Scandinavian Trading Co (1983) 1 All E.R. ... at p.307
  • Stanhope v. Haworth (1885) 1 T.L.R. 34
  • Hawkins v Stoke Poges Golf Club (1920) 1 KB 720
  • Allone Banwite v. Safina Babirye Nansobi (1977) H.C.B.
  • Salome Nakaima v. Paulo Wadimba (H.C.B.)
  • Broadway Construction Company v. Kasule and others (1962) E.A. 76
  • Rambhai & Co (Uganda) Ltd v. ... (1970) E.A.

Full judgment

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

Butagira v Namukasa (Civil Appeal No. 5 of 1989) [1990] UGSC 26 (18 July 1990)
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.