Wakilii

Parul Kamalesh v Jinja District Land Board and Another (HCT-03-MC-CS 17 of 2023)

High Court · [2023] UGHC 183 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for restraining termination of lease and re-entry under Judicature Act s.25(4) and Order 52 rule 16 CPR
Decision
Application dismissed; applicant's lease interest cancelled; property confirmed as lawfully re-allocated to third party

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the applicant's request for relief from forfeiture of a leasehold on multiple grounds. The supporting affidavit was struck out as incurably defective because it was sworn in Kampala but commissioned in Dar-es-Salaam, violating Oaths Act requirements. The court held the applicant had no standing because his predecessor acquired the lease from the original lessee without obtaining mandatory written consent from the lessor, rendering the transfer void. The lessor lawfully exercised its right of re-entry under Registration of Titles Act s.103(b) after the lessee defaulted on ground rent for over ten years and failed to develop the property. Relief from forfeiture was denied because re-entry had been completed and the property re-allocated to a third party before the applicant's belated rent payment.

Outcome

Application dismissed; applicant's lease interest cancelled; property confirmed as lawfully re-allocated to third party

Facts

In 2008, Jinja District Land Board granted a 49-year lease over Plot 22 Bell Avenue to Dr. Erisa James Kyagulanyi, requiring annual ground rent of UGX 200,000 and development of residential buildings. In 2014, the applicant acquired the leasehold from Kyagulanyi without obtaining the lessor's written consent as required by the lease agreement. Neither the original lessee nor the applicant paid ground rent from 2008 to 2022, nor developed the property. On 19 September 2022, the lessor issued a demand letter for rent arrears totalling UGX 9,969,747. By 19 December 2022, after 30 days with no payment, the lessor exercised its right of re-entry and applied to the Commissioner Land Registration to note re-entry. On 17 January 2023, the applicant made payment toward arrears. On 24 January 2023, the lessor re-allocated the property to Century Holdings Limited. The applicant then filed this application seeking to restrain termination of his lease.

Issues

  1. Whether the Applicant's affidavit in support of the application is incurably defective
  2. Whether the Applicant has a cause of action against the 1st Respondent
  3. Whether the Application is frivolous, vexatious and overtaken by events
  4. Whether the Applicant defaulted in payment of rent owed to the Respondents
  5. Whether it was lawful for the Respondents to issue a Notice of re-entry to the suit property
  6. Whether the Applicant is entitled to relief against forfeiture or any other legal remedy

Orders

  • The Affidavit in support of the Application is incurably defective and struck off the record.
  • The Applicant has no claim against the 1st Respondent for relief from forfeiture and cannot maintain a cause of action against the Respondents.
  • The Applicant has no recourse to the reliefs sought in respect of the property comprised in LRV 4012, Folio 9 Plot 22 Bell Avenue Jinja.
  • The title to the suit property comprised in LRV 4012, Folio 9 Plot 22 Bell Avenue Jinja reverted to the lessor as of 19th December 2022 through lawful means; the 1st Respondent had every right to re-allocate it to a third party.
  • The Application is dismissed with costs to the Respondents.
  • The orders issued by the Deputy Registrar in respect of Misc. Appln. No. 109 and 110 of 2023 are vacated.
  • The Duplicate Certificate of Title in respect of LRV 4012, Folio 9 Plot 22 Bell Avenue held by the Applicant is cancelled.
  • The Commissioner Land Registration Jinja Zonal Office is directed to rectify the Register.

Rules and key headnotes

Evidence — Affidavit Evidence — Defective Affidavits — Oath Administered Remotely
An affidavit sworn at one location but commissioned at a different location is incurably defective and must be struck off the record. Section 6 of the Oaths Act requires the commissioner for oaths or notary public to state truly in the jurat the place and date where the oath or affidavit is taken or made. A deponent must take oath and sign before the commissioner in person; commissioning without the deponent being physically present violates the law and renders the affidavit invalid.
Leasehold — Transfer of Lease — Requirement for Lessor's Consent
Where a lease agreement requires written consent of the lessor before transfer to another party, a purported transfer without such consent is void ab initio. A transferee who acquires a lease without obtaining mandatory consent is not a recognized tenant of the lessor and has no standing to seek relief from forfeiture. The transferee is a complete stranger to the lessor and cannot maintain a cause of action for relief against forfeiture.
Leasehold — Lessor's Right of Re-entry — Non-payment of Rent
Under section 103(b) of the Registration of Titles Act, where rent or any part of it is in arrear for 30 days, although no legal or formal demand has been made for payment, or where there is breach or non-observance of covenants in the lease continuing for 30 days, the lessor or transferees may re-enter upon and take possession of the leased property. The lessor's right of re-entry is a statutory entitlement that may be exercised lawfully upon default, and lawful re-entry terminates the lease.
Relief from Forfeiture — Limitations on Court's Discretion — Third Party Rights
Relief from forfeiture cannot be granted where the parties have altered their positions and a third party has acquired rights in the property. Where a lessor has lawfully re-entered upon leased property and re-allocated it to a third party before the lessee's payment of rent arrears, relief from forfeiture is unavailable because the lease has terminated and granting relief would adversely affect the rights of the third party who is not a party to the proceedings.
Cause of Action — Disclosure of Reasonable Cause — Locus Standi
A plaintiff must show that he enjoyed a right, that the right has been violated, and that the defendant is liable for the violation. An applicant who acquired a leasehold interest by void transfer has no recognized legal right and cannot disclose a reasonable cause of action for relief from forfeiture against the original lessor. Absence of standing is a threshold bar to maintaining the application.
Leasehold — Payment of Arrears After Re-entry — Effect on Relief from Forfeiture
Payment of rent arrears after the lessor has lawfully re-entered the property and re-allocated it to a third party does not entitle the defaulting lessee to relief from forfeiture. The belated payment cannot reverse a lawful re-entry that has already terminated the lease and cannot prejudice third party rights acquired in good faith after re-entry.

Legislation cited (9)

Cases cited (15)

  • Balikudembe Erisha & Others v Nakanate Curaimeti (HCMA No. 161 of 2004)
  • Kuteesa Herbert & Bagambe Geoffrey v Emmanuel Mugerwa (Misc. Application No. 686 of 2022)
  • Sam Aniagyei Obeng & Another v MTL Real Properties Ltd (Misc. Application No. 198 of 2011)
  • Kakooza John Baptist v Electoral Commission and Yiga Anthony (Supreme Court Appeal No. 11 of 2007)
  • Tororo Cement Co Ltd v Frokina International Ltd (Civil Appeal No. 2 of 2001)
  • Auto Garage & Another vs Motokov (No.3) [1971] EA 514
  • Male H. Mabirizi K. Kiwanuka v Attorney General of Uganda (EACJ Application No. 5 of 2019)
  • American Cynamid Company vs Ethicon Limited
  • Erukana Kuwe v Vasrambhai Damji Vader (SCCA No. 2 of 2002)
  • Jane Nankya Kawesa v William Kabali & Others (HCMC No. 91 of 2005)
  • Mukasa Lubanga & Ors vs Combined Building Company [1995] IV KALR 88
  • Executrix of the Estate of the Late Christine Mary Namatovu Tebejjukira & Others v Noel Grace Shalita Stananzi (Civil Appeal No. 2 of 1988)
  • Francis Butagira v Deborah Namukasa (1992) KALR 767 (Supreme Court)
  • Gill vs. Lewis (1956) 1 All ER 844
  • Hanne Kamulegeya v Haji Siraji Zaribwende (Civil Suit No. 417 of 2006)

Full judgment

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

Parul Kamalesh v Jinja District Land Board and Another (HCT-03-MC-CS 17 of 2023) [2023] UGHC 183 (8 December 2023)
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