Wakilii

Desai v Mcfee and Another (Civil Case No. 85 of 1950)

East African Court of Appeal · [1950] EACA 32 · 1950 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for recovery of possession
Decision
Licence effectively determined; defendants to vacate premises

Observed later treatment

No later-treatment classification is recorded for this judgment.

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AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The court held that the defendants were licensees, not tenants. Although they had exclusive use of some space in the shop, they did not have exclusive possession. They had no key to the front door, could not enter when they pleased, shared considerable space with the plaintiff, and had to pass through the plaintiff's portion to access their own. The test is whether there is exclusive possession, not merely exclusive use.

Outcome

Licence effectively determined; defendants to vacate premises

Facts

In 1947, the plaintiff's brother leased a shop and purported to sub-let a portion to Mrs. Pearse under an agreement dated 1 November 1944. The portion included a show window, shelves, a showcase, a passage, and slightly more than half of the back portion. Mrs. Pearse was also authorized to place tailors in the remainder of the back portion. The lessor retained the keys to the front door and controlled access hours. On 30 June 1949, Mrs. Pearse sold her business and assigned her interest to the defendants, who continued to occupy the premises. The plaintiff became tenant of the whole shop on 25 July 1949 and accepted rent from the defendants. The defendants' portion was separated from the plaintiff's only by furniture, except for one six-foot partition that did not extend to the walls. There was only one door, controlled by the plaintiff.

Issues

  1. Whether the defendants were licensees or tenants of the portion of the premises they occupied.

Orders

  • Judgment for the plaintiff as prayed in paragraphs 1-5 inclusive of the plaint.
  • Defendants to deliver up possession of the premises.

Rules and key headnotes

Landlord and Tenant — Lease versus Licence — Test of Exclusive Possession
Whether a person has a lease or a licence depends upon whether he has exclusive possession as opposed to exclusive use of the premises.
Landlord and Tenant — Lease versus Licence — Substance over Form
In deciding the legal effect of a document purporting to create a lease, it is the substance of the agreement rather than its form that must be considered.
Landlord and Tenant — Licence — Absence of Exclusive Possession
Where an occupier has no key to the premises, cannot enter when they please, must pass through another's portion to access their space, and shares considerable portions with the grantor, they are a licensee and not a tenant, notwithstanding exclusive use of some space.

Cases cited (2)

  • Kamrudin Esmail Rajwani v Govindji Kalidas Degamwala (Civil Appeal No. 64 of 1949)
  • Karamat Ali v Champion Shoe Co [1949] EACA 15

Full judgment

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

Desai v Mcfee and Another (Civil Case No. 85 of 1950) [1950] EACA 32 (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.