Wakilii

Ndimwibo v Mbabali & Anor (Civil Appeal No.71 of 2012)

High Court · [2014] UGHCLD 117 · 2014 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Chief Magistrate's judgment in a landlord-tenant dispute concerning eviction and trespass
Decision
Appeal substantially dismissed with partial success on quantum of mesne profits; orders of eviction and damages upheld with modification to mesne profits award

Observed later treatment

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Holding

The High Court dismissed the appeal, holding that the appellant was a tenant in tail who subsequently acquired tenancy in his own right through conduct and payment of rent. The appellant became a trespasser after refusing to vacate upon proper notice. The court upheld general damages of Shs. 25,000,000 but reduced mesne profits from Shs. 12,300,000 to Shs. 2,460,000, finding the trial court lacked evidence to justify increasing the monthly rate from the contractual Shs. 60,000 to Shs. 300,000.

Outcome

Appeal substantially dismissed with partial success on quantum of mesne profits; orders of eviction and damages upheld with modification to mesne profits award

Facts

The first respondent was the registered proprietor of land at Mengo, Kisenyi. The appellant's late father, Paddy Ndimwibo, was a tenant of the first respondent from 1994, operating a maize mill on the land in temporary structures. The tenancy was extended in successive five-year periods. Upon the father's death, the appellant took over the mill and continued paying rent. In February 2009, the second respondent acquired a 49-year lease from the first respondent and sought to develop the land with a hospital. The appellant was requested to vacate by 30 March 2009 but refused and stopped paying rent from March 2009. The Chief Magistrate's Court found the appellant to be a tenant in tail and subsequently a trespasser, ordering eviction, general damages of Shs. 25,000,000, and mesne profits of Shs. 12,300,000. The appellant appealed on five grounds.

Issues

  1. Whether the appellant was a tenant in tail of the first respondent.
  2. Whether the learned trial magistrate erred in concluding that the appellant was a trespasser on the suit land.
  3. Whether the trial magistrate erred in relying on inadmissible evidence.
  4. Whether the trial magistrate erred in relying on the written statement of defence to conclude that the appellant was a tenant in tail.
  5. Whether the general damages of Shs. 25,000,000 and mesne profits of Shs. 12,300,000 awarded by the trial magistrate were excessive.

Orders

  • Appeal dismissed.
  • General damages of Shs. 25,000,000 upheld.
  • Mesne profits reduced from Shs. 12,300,000 to Shs. 2,460,000.
  • Appellant to pay 90% of costs of the appeal and trial court to the respondent.

Rules and key headnotes

Landlord and Tenant — Tenant in Tail — Succession to Tenancy
A tenant in tail is a lineal descendant of an original tenant who becomes entitled to remain in possession as the successor or heir of that tenant, and where the heir remains in occupation and pays rent in his own name, he acquires tenancy in his own right.
Landlord and Tenant — Creation of Tenancy — Conduct and Payment of Rent
A tenancy agreement need not necessarily be in writing; it is sufficient that the parties comply with the terms of the tenancy, in particular that the tenant pays rent and remains in occupation.
Pleadings — Party Bound by Pleadings — Departure from Pleadings
A party is bound by his pleadings and cannot be permitted at trial to deny facts admitted in the written statement of defence without seeking leave to amend, and where sufficient time has elapsed without amendment, a court may conclude that the original pleading reflected the client's instructions.
Landlord and Tenant — Trespass — Refusal to Vacate After Notice
Where a tenant refuses to vacate premises after receiving proper notice to quit and the tenancy has expired, the tenant becomes a trespasser on the land.
Mesne Profits — Assessment — Proper Basis for Award
Mesne profits are assessed at the amount of the contractual rent where the rent represents the fair value of the premises, but if the real value is higher than the rent, mesne profits must be assessed at the higher value. A court must provide evidence or reasons for increasing the assessment above the contractual rent.
General Damages — Trespass — Compensatory Principle
General damages for trespass are compensatory in nature and must place the plaintiff in as good a position as before the wrong was committed, and an appellate court will not interfere with an award unless it is inordinately high or low, or the trial judge proceeded on a wrong principle or misapprehended the evidence.
Competency of Witnesses — Spouse as Witness in Civil Proceedings
Under section 121 of the Evidence Act, in all civil proceedings, the parties to the suit and the husband and wife of any party to the suit are competent and compellable witnesses, and a wife does not need to produce a marriage certificate to give evidence where her husband is involved in a civil matter other than divorce or judicial separation.

Legislation cited (4)

Cases cited (12)

  • Fredrick Zaabwe v Orient Bank & 5 Others (Supreme Court Civil Appeal No. 4 of 2006)
  • Banco Arabe Espanol v Boll (Supreme Court Civil Appeal No. 8 of 1998)
  • Njeri Kimani & Another Vs Joseph Njoroge, Murigi & Anor, (Nairobi HCC Case No. 819 of 2000)
  • Harrowby (Earl) Vs Snelson & Anor[1951] Aller 140
  • Khalid Walusimbi v Jamil Kaaya & Attorney General (High Court Civil Suit No. 526 of 1989)
  • International Forwarders (U) Ltd v East African Development Bank (Supreme Court Civil Appeal No. 33 of 1992)
  • Mumbejja Aida Nanozi Banoba & Anor v Ssebaale Henry & 2 Ors (High Court Civil Suit No. 219 of 2008)
  • Banco Arabe Espanol Vs Bank of Uganda
  • Crown Beverages Ltd Vs Sendu [2006] 2 Ea 43
  • Clifton Securities Ltd Vs Huntley & Ors [1948] ALL ER 283
  • Matiya Byabalema & Others v Uganda Transport Company (1975) Ltd (Supreme Court Civil Appeal No. 10 of 1993)
  • Associated Architects v Christine Nazziwa (Civil Appeal No. 5 of 1981)

Full judgment

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Ndimwibo v Mbabali & Anor (Civil Appeal No.71 of 2012) [2014] UGHCLD 117 (29 August 2014)
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.