Wakilii

Jaber Twalib & Anor v Global Hardware Co. Ltd (Civil Appeal. No. 0031 of 2011)

High Court · [2013] UGHCCD 54 · 2013 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Chief Magistrate's Court judgment in landlord-tenant dispute
Decision
Appeal dismissed with costs. Respondent declared lawful tenant with right to vacant possession. Appellants ordered to vacate within 45 days or face eviction.

Observed later treatment

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Holding

The High Court allowed the appeal in part, finding that the plaintiff-respondent had a valid cause of action in trespass against both defendants-appellants for vacant possession, despite the defendants' defence of privity of contract. The court held that the defendants' periodic tenancy had been validly terminated after they failed to pay rent for four months, and that the respondent had become the lawful tenant with superior rights. The court overturned the trial magistrate's contradictory orders and awarded vacant possession, eviction within 45 days, and costs to the respondent, while dismissing the defendants' counterclaim.

Outcome

Appeal dismissed with costs. Respondent declared lawful tenant with right to vacant possession. Appellants ordered to vacate within 45 days or face eviction.

Facts

Global Hardware Co. Ltd (plaintiff-respondent) obtained a one-year tenancy agreement from Uganda Railways Corporation for premises at plots 14-18 Go down road, Arua Municipality, commencing 16 October 2009 and paid rent of UGX 5,400,000. The defendants-appellants, Jaber Twalib (1st defendant) and Uganda Road Aviation Transport Co. Ltd (2nd defendant), occupied the same premises under a tenancy agreement with URC dated 1 April 2005 for nine months, which expired 31 December 2005. After expiry, the defendants continued occupying the premises by making monthly rent payments of UGX 100,000, creating a periodic monthly tenancy. In October 2009, URC issued the defendants a notice to vacate for failing to pay rent for four months. The defendants failed to vacate. The plaintiff sued for eviction, vacant possession, and damages for trespass. The defendants defended on grounds of having a valid tenancy and filed a counterclaim. The Chief Magistrate found for the plaintiff but made contradictory orders regarding whether the defendants should have been sued. The defendants appealed.

Issues

  1. Whether the plaintiff had a cause of action against the 2nd defendant.
  2. Whether the plaintiff would have been required to be sued by Uganda Railways Corporation instead of the plaintiffs by reason of privity of contract.
  3. Whether the counterclaim was triable against both defendants to the counterclaim or any one of them.
  4. Whether the plaintiff's pleadings were subject to an illegality by reason of offending the Public Procurement and Disposal of Public Assets Act 2003.
  5. Whether the finding of the trial court to the effect that the plaintiff was the lawful tenant in the suit premises was supported by evidence.
  6. Whether the trial court pronounced contradictory remedies to the parties.
  7. Whether the trial court properly and judiciously exercised its discretion when it declined to award costs to parties.

Orders

  • The plaintiff/respondent is the lawful tenant on the suit premises situated at plot 14-18 Go down road Arua Municipality.
  • The plaintiff/respondent is entitled to vacant possession of the let premises against the defendant/appellant.
  • The defendant/appellant are given 45 days from the date of judgment to vacate the suit premises failure of which they will be forcefully evicted.
  • The appellant will pay the costs of the suit below together with the cost of the counter claim to the respondent.
  • The appellant will pay the cost of this appeal.
  • Appeal substantially dismissed with costs.

Rules and key headnotes

Cause of Action — Trespass — Right to Sue Joint Tortfeasors
A plaintiff alleging trespass and seeking vacant possession has a cause of action against joint defendants who jointly or severally occupy premises to which the plaintiff claims superior right, regardless of whether those defendants have contractual relationships with a third-party landlord. The plaintiff need not join the landlord as a defendant where the cause of action is founded in trespass, not contract.
Privity of Contract — Application to Claims in Trespass
The doctrine of privity of contract has no application to a suit founded in trespass. Where a plaintiff sues for vacant possession on grounds of trespass, the existence of separate contractual relationships between the defendants and a third-party landlord does not require that the landlord, rather than the plaintiff, bring the action. Privity of contract is relevant only to causes of action founded on breach of contract, not to claims seeking relief for tortious interference with possessory rights.
Landlord and Tenant — Periodic Tenancy — Creation by Conduct
Where a fixed-term tenancy expires and the tenant continues to occupy the premises while making periodic rent payments which the landlord accepts, a periodic tenancy arises by conduct of the parties. The period of the tenancy corresponds to the interval at which rent is paid and accepted. The continued payment and acceptance of monthly rent creates a monthly periodic tenancy, even in the absence of a written agreement.
Landlord and Tenant — Periodic Tenancy — Termination for Non-Payment of Rent
A periodic tenant who fails to pay rent for multiple periods breaches the essential term of the periodic tenancy relationship and thereby terminates the tenancy. Where rent is the sole basis of the periodic tenancy, non-payment entitles the landlord to immediate possession without notice to quit. A subsequent payment of arrears after notice to vacate does not revive the terminated tenancy, particularly where the tenant deliberately changes the payment method to avoid the landlord's opportunity to refuse.
Judgments and Orders — Clarity and Precision — Duty to Determine Rights
A court has a duty to make clear and precise orders that conclusively determine the rights of parties in matters properly before it. A judgment that finds in favour of a party but then advises that party to seek a remedy elsewhere fails to exercise the jurisdiction vested in the court. Court orders must constitute a formal expression of adjudication that conclusively determines the rights of the parties with regard to the matters in controversy, as required by the definition of a decree under the Civil Procedure Act.
Costs — Exercise of Discretion — Award to Successful Party
The award of costs under section 27 of the Civil Procedure Act is discretionary but must be exercised judicially. Costs should ordinarily follow the event and be awarded to the successful party unless there are justifiable reasons to deny them, such as where the matter is one of public interest litigation. A trial court errs in denying costs to a successful plaintiff without stating adequate reasons for departing from the general rule.
Public Procurement — Direct Disposal — Value for Money Test
Under the Public Procurement and Disposal of Public Assets Act 2003 and Regulations, a procuring entity may use direct disposal rather than competitive bidding where exceptional circumstances relating to cost efficiency justify doing so. It would be irrational to subject a low-value lease (UGX 5,400,000 per annum) to the expensive competitive bidding process required under section 80 where direct disposal under section 85 would deliver better value for money. Value for money, defined as the optimum combination of whole life costs and appropriate quality, must guide the choice of disposal method.

Legislation cited (18)

Cases cited (19)

  • Fredrick JK Zaabwe v Orient Bank Ltd & 5 Ors (Supreme Court Civil Appeal No. 4 of 2006)
  • SELLE & ANOTHER v ASSOCIATED MOTOR BOAT CO. LTD & ANO [1968] EA 123
  • ODD JOB v MUBIA [1970] EA 476
  • Jovelyn Barugare v Attorney General (Supreme Court Civil Appeal No. 28 of 1993)
  • JDC Prince Mpuga Rukidi v Prince Solomon Iguru & Hon. Kajuka & Ors (Supreme Court Civil Appeal No. 18 of 1994)
  • AUTO GARAGE v MOTORKOV [1971] EA 514
  • Attorney General v Major General David Tinyefunza (Constitutional Appeal No. 1 of 1997)
  • Narottam Buatia & Anor v Boutique Shaim Ltd (Supreme Court Civil Appeal No. 16 of 2009)
  • DUNLOP PHARMATIC TYRES v SELFRIDGE 1915 AC 847
  • Enterfreight Forwarders (U) Ltd v EA Development Bank Ltd (Supreme Court Civil Case No. 33 of 1993)
  • MB AUTOMOBILE v KAMPALA BUS SERVICE [1966] EA 480
  • Barorola and Dr. Kasirivu & Ors v Grace Bamurangye (Civil Appeal No. 45 of 2008)
  • UGANDA RAILWAYS CORP. v EWWARU & 5104 ORS ULR [2008] 319
  • MAKULA INTERNATIONAL LTD v H.E. CARDINAL WIMBUGA & ANO [1982] HCB
  • JAVAD v MOHAMAD AQIL [1992] WLR 1007
  • DREAMGATE PROPERTIES LTD v ARNOT [1997] P & CR 25
  • Edebua Yonema v Bileni Musa (Civil Revision No. 0002 of 2011)
  • SHEIKH JUMA v DUBAT FARAH [1959] EA 792
  • WAMBOGO v PUBLIC SERVICE COMMISSION

Full judgment

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Jaber Twalib & Anor v Global Hardware Co. Ltd (Civil Appeal. No. 0031 of 2011) [2013] UGHCCD 54 (3 April 2013)
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.