Wakilii

Kuwe v Damji Vadher (Civil Appeal No. 42 of 2000)

Court of Appeal · [2001] UGCA 47 · 2001 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from High Court judgment granting relief against forfeiture
Decision
Appeal dismissed; High Court grant of relief against forfeiture upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal dismissed the appeal. Although section 27 of the Judicature Statute concerns relief against forfeiture only for non-payment of rent, the trial Judge correctly resorted to equity under sections 16(2) and 35 of the same Statute to grant relief against forfeiture for other covenant breaches. The Court held the trial Judge properly exercised her discretion, considering the supervening expropriation of the property during the Asian exodus which suspended the respondent's lease obligations. Section 184 of the Registration of Titles Act did not apply because the lease had not been voided and the appellant had not physically re-entered the land. An appellate court will not interfere with a properly exercised discretion.

Outcome

Appeal dismissed; High Court grant of relief against forfeiture upheld

Facts

The appellant was registered proprietor of land at Block 29 Plot 123 Mulago. By a lease dated 15 August 1968, he let the property to the respondent, an Asian, for 49 years at yearly rent of Shs. 600. The respondent was expelled from Uganda in 1972 and the property vested in the Departed Asian Property Custodian Board. On 15 September 1993, the respondent repossessed the property through a management company and let it to a tenant, Mumtaz Hassan. The appellant later declared himself the rightful owner, gave Hassan notice, and made a fresh tenancy agreement with him. The appellant applied to the Commissioner for Land Registration to note a re-entry, which was refused. The appellant sued in the High Court seeking declarations that he had lawfully terminated the lease and a permanent injunction. The respondent counterclaimed for relief against forfeiture. The trial Judge found breaches of covenant (non-payment of rent, unauthorised subletting), held the appellant had not lawfully re-entered, and granted the respondent relief against forfeiture.

Issues

  1. Whether the trial Judge erred in granting the respondent relief against forfeiture where breaches other than non-payment of rent had been established.
  2. Whether section 27 of the Judicature Statute permits relief against forfeiture for breaches of covenant other than non-payment of rent.
  3. Whether section 184 of the Registration of Titles Act applied to bar the respondent's action.
  4. Whether the appellant had effected a lawful re-entry on the leased premises.

Orders

  • Appeal dismissed.
  • Costs of the appeal to the respondent.

Rules and key headnotes

Leases — Relief Against Forfeiture — Scope of Judicature Statute s.27
Section 27 of the Judicature Statute provides relief against forfeiture only for non-payment of rent and does not extend to other breaches of covenant in a lease.
Leases — Relief Against Forfeiture — Equitable Jurisdiction under Judicature Statute ss.16(2) and 35
Where there is no written law providing relief against forfeiture for breaches other than non-payment of rent, the High Court may grant such relief in equity under sections 16(2) and 35 of the Judicature Statute.
Registration of Titles — Section 184 — Lessee's Action Against Lessor
Section 184 of the Registration of Titles Act does not bar a lessee's action where the lease has not yet been voided and the lessor has not physically re-entered the land.
Appeals — Interference with Exercise of Discretion by Trial Court
An appellate court will not interfere with the trial court's exercise of discretion unless satisfied that the trial court misdirected itself or was clearly wrong, resulting in injustice.
Lease Covenants — Supervening Impossibility — Effect of Expropriation
Supervening expropriation of leased property that suspends performance of a lessee's covenant obligations does not amount to a breach attributable to the lessee.

Legislation cited (8)

Cases cited (5)

  • Hyman v Rose [1912] AC 652
  • Mbogo v Shah [1968] EA 93
  • The Executrix of the Estate of Late Christine Mary Namatovu v Noel Grace Shalita Stananzi (Civil Appeal No. 20 of 1996)
  • Francis Butagira vs Deborah Namukasa (supra)
  • Baily v De Crespigny (1869) LR 4 QB 180

Full judgment

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

Kuwe v Damji Vadher (Civil Appeal No. 42 of 2000) [2001] UGCA 47 (21 September 2001)
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.