Wakilii

Kimbugwe & 2 Ors v Namukasa & 2 Ors (Consolidated Civil Appeal No. 186 & 226 of 2013)

Court of Appeal · [2019] UGCA 51 · 2019 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First appeal from High Court (Land Division) judgment in a civil suit for unlawful re-entry and breach of tenancy
Decision
Appeal allowed; High Court judgment in favour of the respondent set aside, with the appellants' re-entry held lawful

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal allowed the appeal, holding that the trial judge wrongly disqualified the appellants' advocate under Regulation 9 of the Advocates (Professional Conduct) Regulations, as the advocate was never required to give evidence. Most significantly, the Court held that payment of rent is a fundamental implied condition of a lease, and the respondent's default in rent for two and a half years entitled the landlords to lawful re-entry. Re-entry is itself a legal remedy. Because the developments benefited the respondent's own business and he came to equity without clean hands, there was no justification for restitution or unjust enrichment. The trial court's awards were set aside.

Outcome

Appeal allowed; High Court judgment in favour of the respondent set aside, with the appellants' re-entry held lawful

Facts

The respondent held two tenancy agreements over land in Kyadondo Block 250, Plots 201 and 202, entered with the late landlord Joseph Kayembe Gaaga for a fifteen-year term to operate a commercial gallery. By the time the landlord died, the respondent was in rent arrears of about two and a half years and had sublet the premises. After obtaining letters of administration, the first three appellants (administrators) demanded payment, then re-entered the suit properties and evicted the sub-tenants. The respondent sued for unlawful re-entry, claiming special, compensatory and general damages for breach, economic loss and unjust enrichment based on developments he had made. The remaining appellants, also estate beneficiaries, joined as co-defendants. The High Court found the re-entry unjustified and unlawful and awarded substantial damages. The appellants appealed, contending the respondent's rent default entitled them to re-entry and that the claimed developments and supporting building plans were never proved or approved by KCC.

Issues

  1. Whether the disqualification of counsel for the 1st to 3rd appellants from conducting the case was proper.
  2. Whether the trial judge erred in proceeding with determination of the suit while Miscellaneous Application No. 150 of 2013 was still pending.
  3. Whether the appellants were denied a fair hearing.
  4. Whether the trial judge rightly held that the respondent's tenancy agreements were wrongfully terminated by the appellants' re-entry into the suit property.
  5. Whether the reliefs granted by the trial judge were proper.
  6. What remedies are available to the parties.

Orders

  • Both preliminary objections overruled.
  • Appeal allowed with costs.
  • Judgment of the trial court set aside.

Rules and key headnotes

Landlord and Tenant — Re-entry for Non-payment of Rent — Re-entry as a Legal Remedy
Re-entry is itself a legal remedy available to a landlord, being the landlord's resumption of possession of leased premises upon the tenant's default, and an aggrieved party is not confined to distress or suing for the debt.
Landlord and Tenant — Payment of Rent as a Fundamental Implied Condition
Payment of rent is a fundamental implied term in every lease pursuant to section 102 of the Registration of Titles Act, and failure to pay rent is a breach of a fundamental condition that entitles the landlord to re-enter and resume possession of the leased premises.
Equity — Unjust Enrichment — Clean Hands Doctrine
A claim of unjust enrichment is a claim in equity, and a tenant who is in serious default of his rent obligations does not come with clean hands; restitution is unavailable where developments retained on the property benefited the claimant's own business rather than the landlord.
Advocates — Disqualification under Regulation 9 — Advocate as Potential Witness
An advocate may only be barred under Regulation 9 of the Advocates (Professional Conduct) Regulations where it is genuinely apparent that he will be required to give evidence; routine correspondence written in pursuit of instructions, which a recipient can prove, does not render the advocate a necessary witness.
Appeals — Preliminary Objections — Leave under Rule 102(b) and Sufficient Cause
A respondent who wishes to raise an objection to the competence of an appeal that could have been raised under rule 82 must obtain leave by showing sufficient cause; the lapse of counsel in failing to raise the objection over many years does not amount to sufficient cause.
Assessment of Damages — Appellate Interference with Discretion
Quantification of general damages is a matter of judicial discretion which must be exercised judiciously, and an appellate court may interfere where the trial court acted on a wrong principle or where the award is manifestly excessive so as to occasion a miscarriage of justice.

Legislation cited (12)

Cases cited (15)

  • Lawrence Musitwa Kyazze v Eunice Busingye (Civil Appeal No. 19 of 1990)
  • Jefferali & anor V Borrissow & anor [1971] EA 165
  • Pandya vs. R [1957] EA 336
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Ebil Fred v Otim Nape William (Election Petition Appeal No. 48 of 2012)
  • Uganda Development Bank v Kasirye Byaruhanga & Co. Advocates (Civil Appeal No. 35 of 1994)
  • Tropical Bank Ltd v Grace Were Muhwana (Civil Appeal No. 3 of 2012)
  • SOUZA FIGUEIREDO & CO LTD VS MOORINGS HOTEL CO LTD [1960] EA 926
  • Erukana Kuwe v Damji Vader (Civil Appeal No. 2 of 2002)
  • Tatu Naiga & Co. Emporium v Verjee Brothers Ltd (Civil Appeal No. 8 of 2000)
  • Joy Tumushabe and Another v Anglo African Ltd and Another (Civil Appeal No. 7 of 1999)
  • Vivo Energy (U) Ltd v Lydia Kisutu (Civil Appeal No. 7 of 2015)
  • Fredrick Zaabwe v Orient Bank & 5 Ors (Civil Appeal No. 4 of 2006)
  • Fibrosa Spolka Akcyjna versus Fairbairn Lawson Combe Barbour Ltd [1943] AC 32 at 61
  • Moses Vs Macfarlane [1760] 2 Burr at 10

Full judgment

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

Kimbugwe & 2 Ors Vs Namukasa & 2 Ors (Consolidated Civil Appeal No. 186 & 226 of 2013) [2019] UGCA 51 (7 May 2019)
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.