Wakilii

Hamza Motors (U) Ltd v Damanico Ltd (High Court Miscellaneous Application No. 602 of 2008)

High Court · [2008] UGCOMMC 56 · 2008 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of ex-parte order under Order 46 Rules 1(a) and (b) of the Civil Procedure Rules
Decision
Ex-parte order amended on review to reduce rent amount from US$10,000 to US$2,300 plus VAT

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the ex-parte order awarding US$10,000 monthly rent was erroneous where the respondent had already received rent from a new sub-lessee for the same period. The court was misled by affidavit evidence and counsel's submissions claiming loss of earnings when rent had been paid in advance by the incoming tenant. Ordering duplicate payment would constitute unjust enrichment. The order was amended to substitute the current contractual rent of US$2,300 plus VAT.

Outcome

Ex-parte order amended on review to reduce rent amount from US$10,000 to US$2,300 plus VAT

Facts

The applicant operated a car bond as sub-lessee on premises leased by the respondent. The sub-lease was to terminate on 30 September 2008. On 7 July 2008, the respondent entered a new sub-lease with Tadashi (U) Ltd to commence 1 October 2008, with 12 months' rent paid in advance. When the applicant failed to vacate, the respondent obtained an ex-parte order on 21 October 2008 requiring payment of US$10,000 monthly loss of rent. The respondent's affidavit and counsel stated they were claiming loss of earnings from 1 October, without disclosing that rent had already been received from Tadashi (U) Ltd, though Tadashi had not obtained full control of the premises. The applicant sought review, arguing the respondent could not be paid twice for the same period.

Issues

  1. Whether there was mistake apparent on the face of the record when the court relied on a rent figure of US$10,000 in the ex-parte order.
  2. Whether the applicants have shown new matter or evidence after due diligence which was not within their knowledge when the ex-parte order was made.
  3. Whether the court erred in ordering the applicant to pay US$10,000 per month when the respondent had already received rent from a third party for the same period.

Orders

  • Application for review granted with costs.
  • Order of 21st October 2008 amended to rescind the figure of US$10,000.
  • Figure substituted with the current rent of US$2,300 plus VAT.

Rules and key headnotes

Civil Procedure — Review of Orders — Grounds for Review under Order 46 Rule 1
An ex-parte order may be reviewed under Order 46 Rule 1 where the court record discloses error on its face and the party was aggrieved, particularly where confusion in listing of applications contributed to non-attendance.
Civil Procedure — Misleading Evidence — Effect on Orders
Where affidavit evidence and counsel's submissions claiming loss of earnings are misleading because they fail to disclose that rent for the same period has already been received from a third party, this constitutes error on the face of the court record justifying review.
Contract Law — Rent — Unjust Enrichment
A lessor cannot be paid rent twice for the same period and premises from different parties, as this would constitute unjust enrichment and making profit on rent, even where the incoming tenant has not obtained full control of the premises but has paid rent in advance and occupies part of the premises.

Legislation cited (5)

Cases cited (2)

  • Abias Balinda v Frederich Kangwamu & Others
  • Tantitalia Ltd v Mawe Handels Austalt

Full judgment

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Hamza Motors (U) Ltd v Damanico Ltd (High Court Miscellaneous Application No. 602 of 2008) [2008] UGCommC 56 (26 November 2008)
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.