Wakilii

Nabiito Nakato v Lukanga (Civil Appeal 618 of 2018)

High Court · [2024] UGHCLD 225 · 2024 Judgment for Plaintiff — Forfeiture Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for forfeiture of lease, vacant possession, damages and costs
Decision
Lease forfeited; defendant ordered to vacate within 90 days and pay arrears of UGX 20,250,000 plus general damages of UGX 10,000,000

Observed later treatment

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Holding

The High Court held that a lease agreement executed without proper translation to an illiterate lessor violated the Illiterates Protection Act and was inadmissible. The Court further found that the defendant lessee breached payment covenants by failing to pay ground rent for multiple years (2017, 2019, and partial arrears for 2020, 2022, 2023), despite making some premium payments. The Court granted forfeiture of the lease and ordered vacant possession, finding that the defendant failed to establish a strong case for relief against forfeiture under the Judicature Act despite expressing willingness to pay arrears.

Outcome

Lease forfeited; defendant ordered to vacate within 90 days and pay arrears of UGX 20,250,000 plus general damages of UGX 10,000,000

Facts

The plaintiff, owner and registered proprietor of land at Kanyanya (Kyadondo Block 207 Plot 1020), entered into a 49-year lease with the defendant on 13 June 2016. The lease required the defendant to pay a premium of UGX 15,000,000 and annual ground rent of UGX 6,000,000. The plaintiff was illiterate (stopped education in Primary Two) and the lease agreement was drafted in English without proper translation. The defendant agreed to clear the plaintiff's outstanding loan with Finance Trust Bank as part of the arrangement. The defendant made various payments to the plaintiff's accounts but failed to pay ground rent for 2017 and 2019, and maintained arrears for subsequent years. The plaintiff lodged a caveat on the land following defaults. In March 2018, the parties entered into a deed of acknowledgment where the defendant paid UGX 3,000,000 and agreed to pay a premium balance of UGX 5,000,000. The defendant claimed to have made various cash payments evidenced by receipts, but the plaintiff contested these receipts as forgeries. The plaintiff sued for forfeiture of the lease, vacant possession, damages and costs.

Issues

  1. Whether the defendant is in breach of the lease covenant?
  2. What remedies are available to the parties?

Orders

  • An order of forfeiture is issued against the defendant as a lessee on land comprised in Kyadondo Block 207 Plot 1020 at Kanyanya in Kampala District.
  • The defendant shall give the plaintiff vacant possession of the suit land within a period of 90 days from the date of this judgment.
  • The defendant shall pay a sum of UGX 20,250,000 within six months from the date of this judgment.
  • The defendant shall pay the sum in order (3) to the plaintiff's Centenary Bank account.
  • General damages are awarded to the plaintiff in the sum of UGX 10,000,000.
  • Costs are awarded to the plaintiff.

Rules and key headnotes

Illiterate Persons — Protection under Illiterates Protection Act — Requirements for Valid Execution
Where an illiterate person enters into a contract written in a language they do not understand, Section 3 of the Illiterates Protection Act Cap 288 requires the author of the document to write their full name and address in the jurat, which implies that the document was written on the illiterate person's instructions, was read over and explained to them, and represents their instructions. The illiterate person cannot own the contents of a document when it is not shown that they were explained to them and that they understood them. Failure to comply with these mandatory requirements renders the document inadmissible.
Illiterates Protection Act — Interpretation of 'Illiterate Person'
An illiterate person under the Illiterates Protection Act means, in relation to a document, a person who is unable to read and understand the script or language in which the document is written or printed. The term does not merely connote inability to understand English, but has everything to do with understanding the written language. The Act was intended to protect illiterate persons from endorsing documents they do not understand and to preserve the freedom of an individual to choose what to be bound by.
Lease Agreements — Variation by Course of Dealing
Under Section 66 of the Contracts Act, where any right, duty or liability would arise under an agreement or contract, it may be varied by express agreement or by course of dealing between the parties. At common law, a contract can be varied by oral agreement or by the parties' conduct, even where the contract itself contains terms requiring written variations. However, a deed of variation must be express, showing the terms that have been varied.
Leases — Breach of Covenant — Non-Payment of Rent — Right of Re-Entry
Under Section 102(b) of the Registration of Titles Act, where rent or any part of it is in arrears for the space of thirty days, although no legal or formal demand has been made, or in case of any other breach or non-observance of any covenant in the lease continuing for thirty days, the lessor may re-enter upon and take possession of the leased property. Where a lessee has defaulted on rental payments for multiple years and fails to pay ground rent as covenanted, the lessor is entitled to re-entry and forfeiture.
Relief Against Forfeiture — Discretion of Court — Factors for Consideration
Under Section 25 of the Judicature Act, a lessee may apply to the High Court for relief against forfeiture for non-payment of rent. The grant of relief is at the discretion of the court. The law leans against forfeiture and a proviso for re-entry on non-payment of rent is regarded in equity as merely security for rent. However, a long period of non-payment of rent is a ground for refusal to grant relief. Where a lessee has failed to pay rent for multiple years and provides no concrete timeline for payment of arrears despite expressing willingness to pay, the lessee fails to establish a strong case warranting relief against forfeiture.
Documentary Evidence — Forgery — Burden of Proof — Expert Evidence
Where a party alleges that receipts bearing signatures are forgeries, the original documents are the best evidence. Under Section 43 of the Evidence Act, when a court must form an opinion as to handwriting, the opinions of persons skilled in identifying handwriting are relevant. However, expert witness opinion is merely persuasive. Where receipts purportedly signed by an illiterate person do not bear their customary thumb print and the signatures differ distinctly from one another and from the person's established signature on other documents, and where the alleged signatory denies authorizing anyone to issue receipts on their behalf, the court may find the receipts to be unreliable even without expert testimony.

Legislation cited (19)

Cases cited (14)

  • Teodozio Bariyo and Another v Baingana Patrick (HCCA No. 26 of 2014)
  • Paul Rujura v Nyebare Fred Kyamuzigita (Court of Appeal Civil Appeal No. 85 of 2014)
  • Abdalla Faraj v A.R. Odimbe & Co Advocates (HCCS No. 962 of 1986)
  • Kasaala Growers Co-operative Society v Kakooza and Another (Supreme Court Civil Appeal No. 19 of 2010)
  • Stanbic Bank Uganda Ltd v Ssenyonjo Moses and Another (Civil Appeal No. 147 of 2015)
  • Olanya Hannington v Acullu Hellen (HCCA No. 38 of 2016)
  • Meridiana Africa Airlines (U) Ltd v Avmax Spares (EA) Ltd (HCCS No. 111 of 2017)
  • Uganda v Obur Ronald and Others (High Court Criminal Appeal No. 7 of 2019)
  • Bisons Consult International Ltd v Salini Construttori S.P.A (Court of Appeal Civil Appeal No. 77 of 2013)
  • Globe Motors v RW Lucas Varity Electric Steering Ltd [2016] EWCA Civil 396
  • Francis Butagira v Deborah Namukasa (Supreme Court) [1992] KALR 767
  • Gill v Lewis [1956] 1 All ER 844
  • Public Trustee v Westbrook and Another [1965] 3 All ER 398
  • Luzinda v Ssekamatte and 3 Others (Civil Suit No. 366 of 2017) [2020] UGHCCD 20

Full judgment

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

Nabiito_Nakato_v_Lukanga_(Civil_Appeal_618_of_2018)_[2024]_UGHCLD_225_(24_September_2024)
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.