Butagira v Namukasa (Civil Appeal No. 5 of 1989) [1990] UGSC 26 (18 July 1990)

IN THE SUPREME COURT OF UGANDA

## $AT$ **MENGO**

(CORAM: WAMBUZI, C. J., ODOKI, J. S. C., AND PLATT . J. S. C.

## CIVIL APPEAL NO. 6 OF 1989

## **BETWEEN**

FRANCIS BUTAGIRA :::::::::::::::::::::::::: APPELLANT

AND

DEBORAH NAMUKASA ::::::::::::::::::::::::::: RESPONDENT.

(APPEAL from the judgment of the High Court of Uganda at Kampala (Kato J.) dated 12th October 1988

IN

Civil Suit No. 1357 of 1986)

## JUDGMENT OF ODOKI, J. S. C.

This appeal arises out of an action brought by the appellant in the High Court against the respondent in respect of the suit property comprised in Leasehold Register Vo1. 573 Folio 23 situate at Plot 123, Mbuya Hill in Kampala City. The appellant sought, inter alia, a declaration that the respondent was not entitled to remain in possession of the said property; mesne profits and an injunction restraining the respondent from remaining or entering on the property. The respondent filed a counter-claim seeking a declaration that the appellant obtained the property illegally, that the appellant had been in breach of the conditions and covenants of the leasehold. that the appellant is a trespasser on the land, and also seeking a permanent injunction restraining the appellant from entering upon the suit property. The learned trial judge dismissed the action and allowed part of the counter claim. He ordered the parties to bear their own costs.. It is against this decision that the appellant now appeals and the respondent cross appeals.

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Briefly the facts of the case are as follows. The appellant is the registered proprietor of the suit property. The property was leased out of a freehold estate comprised in Freehold Register Vo1. 44 Folio 2. The original proprietor of the freehold was Christine Mary Namatovu Tebajjukira, previously known as Saraswati Gargaram. She was the grandmother of the respondent. The suit property was first leased to one William Cleto Menezes for 49 years with effect from $17/12/47$ . The lease was subsequently transferred several times to various proprietors until it was transferred to $\sigma$ e $\Delta$ . d Buzabo on 11/10/72. Buzabo then transferred the lease to the appellant on 14/12/79. The appellant later sub-leased the property to one P. Averono with effect from $1/12/85$ .

Christine Tebajjukira died in 1984 and appointed the respondent as the executrix of her will. The appellant obtained probate in February 1986 and became the registered proprietor of the Freehold on $1\frac{3}{86}$ . She found out that the appellant was one of her lessees, and also discovered that he had neither paid any rent nor sought and obtained her consent before subletting the property. She accordingly evicted the sub-tenant and re-entered the property. It was as a result of this that the appellant brought an action against her in the High Court.

At the hearing of the suit, the following six issues were framed:-

- Whether the plaintiff is the registered proprietor $1.$ of the property comprised in Leasehold Register vo1. 573 folio 23, at plot 123 Mbuya Hill. - If so whether the plaintiff acquired the property $2.$ lawfully.

Whether the plaintiff made any breaches of the $3.$ covenants in the lease. $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1$

$-2-$

If so whether the leasehold was liable to forfeiture. $4.$ What remedies are available to the plaintiff. $5.$ What remedies are open to the dipendant on the 6. counter-claim.

At the opening of the hearing both parties agreed that the first issue did not fall to be decided. The trial judge was therefore left with the remaining five issues. On the second issue, the learned trial judge held that the consent of the headlessor had not been obtained before Buzabo transferred the lease to the appellant. He held further that the appellant did not acquire the property lawfilly because there was no consent from the Land Commission as required by S. $22(5)(c)$ of the Public Lands Act, and therefore the transaction was void ab initio as it was tainted with illegality. As regards issue No. 3, the learned judge held that the appellant was in breach of the covenant in the lease providing for payment of rent. However, he held that the appellant was not in breach of the covenant against sub-letting without prior consent of the lessor. On the fourth issue, he held that the lease was liable to forfeiture for non-payment of rent, but held that had the transaction not been null and void, this was a case where he would have exercised his discretion to grant relief against forfeiture.

With regard to issue No. 5, the learned judge held that the appellant was not entitled to any remedy and therefore his certificate of title was to be cancelled. As regards the last issue, the learned trial judge held that the respondent's re-entry was to remain in force and so he granted an injunction against the appellant restraining him from interfering; with the respondent's quiet enjoyment of the suit premises. As

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The appellant has filed four grounds of appeal which are as follows:-

- The learned trial judge erred in law in holding $1.$ that there were no consents to transfer the property to the appellant. - If the learned trial judge was correct in deciding $2.$ that those consents were not obtained he erred in law in holding - (a) that the lack of consents made the transfer null and void - (b) that lack of consent under the Public Lands Act was a breach enforceable by the respondent rather than by the controlling authority. - Having found no evidence of fraud the learned Judge $3.$ was wrong in deciding the case against the appellant who was still the registered proprietor of the property in question. - The learned judge erred in law in declining to $4.$ grant relief against forfeiture.

The respondent has on her part cross appealed on the following grounds:-

- The learned trial judge erred in law when he $1.$ declined to award costs of the suit to the respondent. - The learned trial judge erred both in fact and $2.$ law when he held that there was no denial by the appellant of the respondent; title.

The learned trial judge erred in law when he held $3.$ that subleasing of the suit premises by the appellant

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was not a breach of the lease covenant.

$145 -$

- $4\bullet$ The learned trial judge erred in fact and law when he held that the appellant can avail himself of the provisions of Section 184 of the Registration of Titles Act and bring an action for the ejectment of the Respondent. - The learned trial $\texttt{jud}_{\mathcal{B}}e$ ought to have found that 5. the court would not venture into the issue of relief from forfeiture because - (a) the issue was not properly before the court - (b) there was no cause of action against the Respondent.

At the commencement of the hearing of this appeal, Mr. Kateera, learned counsel for the appellant, abandoned, quite properly in my view, the first and third grounds of appeal. Learned counsel then want on to argue the second ground of appeal. He submitted first that the learned trial judge erred in law in holding that lack of consent under the Public Lands Act made the transfer null and void. Secondly he submitted that the learned trial judge erred in law in holding that that breach was enforceable by the respondent. Mr. Kateera contended that when there is no consent under the Public Lands Act the transaction is not void ab initio but is voidable at the option of the Land Commission. Untill the Commission took steps to enforce the law, counsel submitted, the lease could continue, or the commission could waive the breach and the lease continues.

In coming to the conclusion that failure to obtain the required consent under S. 22 (5)(c) of the Public Lands Act rendered the assignment of the lease null and void, the learned

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trial judge relied heavily on two decisions of the High Court which were based on the provisions of the Busulu and Envujjo Law. In His judgment, the learned judge said,

> "Mr. Owinyi also backed his argument with the cases of Alone Bamwite Y. Safina Babirye Nangobi (1977) HCB 41 and that of Maria Salome Nakayima V. Paulo Wadimba $(1074)$ H. C. B. 107 A. In the former case the purchaser had not obtained consent from the clan; while in the latter case the mailo owner had not given his consent and that contravened the provisions of Section $\delta(I)$ and (2) of the Busulu and Envujjo Law. In both of these cases the court found transaction to be illegal, Wambuzi C. J. in the case of Wadimba (supra) emphasised that the court should not be used to perpetuate illegalities. I accept these authorities on this point as representing the correct proposition of the law. In the case now before me the provisions of Section $22(5)(c)(i)$ are mandatory and as such I hold that failure to comply with those provisions is quite vital; with due respect to Mr. Kateera, I do not agree that such failure results in the transaction being voidable at the instance of the Land Commission; in my view the whole transaction is tainted with illegality and void ab initio".

Section 8 of the Busuulu and Envujjo Law 1928 (vol. XVI Laws of Uganda P. 5164) provides.

> "(I) Nothing in this Law shall give any person the right to reside upon the land of a mailo owner without first obtaining the consent of the mailo owner except-

- $(a)$ the wife or child of the holder of a Kibanja; or - $(b)$ a person who succeeds to a Kibanja in accordance with the native custom upon the death of the holder thereof.

(2) Nothing in this law shall give the holder of of a kibanja the right to transfer or sublet his kibanja to any other person".

Under Section $18A(b)$ of this Law, it was declared to be an offence on the part of the tenant if "he sublets his holding or any part thereof, for purposes of profit.

$...$ /7..

In my view, these provisions prohibit absolutely the transfer or subletting of a Kibanja to any person. Indeed. Section 18 makes it an offence for the tenant to infringe the provisions of this Section, thus making the whole transacting illegal.

On the other hand Section 22 $(5)(c)$ of the Public Lands Act 1969 provides as follows:

$"(5)$ In every lease of Public Land.

- (a) **....................................** - (b) **....................................** - (c) there shall be implied except where expressly varied or excepted, as covenants in the lease enforceable by the controlling authority against the lessee that the lessee shall. - a except by will, or sublet the $(i)$ lam. Leased or any part thereof without the prior consent of the controlling authority in writing which consent shall not be unreasonably withheld". It is my opinion that the above provision does not

contain an absolute prohibition against transferring or subletting without the consent of the controlling authority. The section does not provide for the effect or consequences of failure to obtain consent. It does not provide whether the transaction shall be null and void and therefore illegal, or that it will constitute an offence. Nor does it say that the transaction shall be voidable. But it states that the covenant shall be enforceable by the controlling authority. This materially different from the provision in $\frac{1}{2}$ provision is therefore Section 8(2) of the Busuulu and Envujjo Law. Consequently the two decisions relied on by the learned trial judge are inapplicable to the present case.

Counsel for the appellant did not refer us to any authority in support of his submission that failure to obtain consent $...$ $/8...$

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of the controlling authority only rendered the lease voidable but not null and void. I have however come across one decision of the High Court of Uganda which appears to support his submission. This is the case of Samuel Kizito Mubiru & Another v. G. W. Byensiba and Another, Civil Suit No. 513 of 1982 (1985) H. C. B. 106. I was unable to obtain the full judgment of the Court, but according to the report in the High Court Monthly Bulletin (supra) the Court held as follows:-

> "5. With regard to the consent contemplated by S. $22(5)(c)$ of the Public Lands Act No. 13 of 1969, the absence of such consent did not make the agreement made before consent void. The agreement was merely incomplete and became effective once consent had been obtained. The contract of sale was therefore voidable as long as the consent had not been obtained".

I am inclined to agree with the opinion expressed by the High Court that the absence of consent under $S.22(5)(C)$ of the Public Lands Act does not render an agreement for transfer void, but voidable. By parity of reasoning, I would hold that failure to obtain consent before a transfer of a lease under the same provision does not render the lease null and void, but only voidable. In my opinion, the controlling authority has the option to enforce the requirement or covenant by either nullfying the lease or consenting to the transaction. Accordingly, I would hold that the learned traial judge erred in law in holding that absence of consent made the transfer null and void.

As regards the second part of ground 2, counsel for the appellant submitted that lack of consent under the Public Lands Act was not a breach enforceable by the respondent but by the controlling authority only. He relied on the express words of the Section $22(5)(c)$ and the authority of Da venport

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V. R. (1878) 3 A. C. 115, (1874 - 80) All E. R. Rep. 157. In that case the Privy Counsil held that a clause in a lease providing in terms however clear and strong that the lease shall be void on breach by the lessee of a specified condition is to be interpreted as meaning that the lease is voidable at the option of the lessor only. The Court went on to say that the fact that the forfeiture clause has been imposed by the legislature does not affect the applicability of this principle. The reason for this rule was that it is contrary to natural justice that a man should be able to avoid his own contract by his own wrong.

The decision in the case of Davenport V. R. (Gupra) renders some support to the view I have already expressed that breach of the covenant against sub-letting does not render the lease void but voidable. It also supports the argument of counsel for the appellant that the lease is voidable at the option of the lessor only. In this case the lessor under the Public Lands Act is the controlling authority.

Not withstanding the above authority, it is however, expressly stated in the relevant provision that the covenant is "enforceable by the controlling authority against the lessee". The covenant may be enforced by the controlling authority exercising its power of re-entry under Section 32 of the Public Lands Act which provides,

- $"(I)$ Subject to the provisions of this Section where - (a) .................................... - (b) there is any breach or non-observance by the lessee of any of the conditions or covenants, express or implied, contained in such a lease.

then the controlling authority may at any time therefore re-enter upon the land leased or a part thereof in the name of the whole or part the same shall thereupon revert to the controlling authority".

$\overline{g}$ This provision reenforces the view that it is only the controlling authority which can enforce the breach of the covenants contained in the lease. In my judgment therefore the respondent has no power to enforce the obligations of the controlling authority under Section $22(5)(c)$ of the Public Lands Act.

Mr. Owiny Dollo submitted that the respondent was the controlling authority as the lessor to the appellant. He argued that it was the respondent who had interestin enforcing the breach and not any other controlling authority.

The term controlling authority is defined in Section 54 of the Public Lands Act 1969 as follows:-

"Controlling authority means,

- (a) in relation to land held on a statutory lease, the designated authority by which the land is held. - $(b)$ in relation to land vested in freehold in the Commission and not let on a statutory lease, the Commission; - (c) in relation to land held in statutory freehold or freehold, the Commission".

"Designated authority" means a city counsil, municipal counsil, town council or town board, established in a designated Urban area". The respondent is neither of these bodies and is therefore not a controlling authority. Accordingly the second ground of appeal must succeed.

In the fourth ground of appeal, the appellant complains that the learned trial judge erred in declining to grant him relief against forfeiture. Mr. Kateera for appellant submitted that since the learned trial judge held that he would have granted relief against forfeiture had/lease not been /the tainted with illegality, and since the lease was not so tainted, the trial judge was wrong not to grant the relief. Mr. Kateera

$...$ $11$

gave several reasons why relief against forfeiture should have been granted. The first was that under S. 24 of the Judicature Act, the Court was given a wide discretion to grant relief against forfeiture. He submitted that the relief against forfeiture had been asked for under the general prayer in the plaint and had been argued on in the lower court. Mr. Owiny Dollo on the other hand maintained that relief against forfeiture was not open for consideration of the court because it was not specifically prayed for, and secondly S. 24 of the Judicature Act applied only where a lesser has brought an action and not in the present case, where the action is brought by the lessee after determination of the lease. Section 24 of the Judicature Act provides:-

> $"(I)$ Where a lessor is proceeding by action or otherwise to enforce a right of re-entry or forfeiture for non-payment of rent, the lessee his executors administrators or assigns may in the lessors action or in an action brought by himself apply to the High Court for relief.

> (2) The High Court in pursuance of the provisions of the proceeding subsection may,

- (a) grant any relief it considers fit on such terms as to costs expenses, damages compensation, penalty or otherwises including the granting of an injunction to restrain any future non-payment of rent as it thinks fit or - (b) Refuse the relief sought as it thinks fit.

$(3)$ Where relief is granted under the provisions of this Section the lessee, his executors, administrators or assigns shall hold the demised property according to the terms of the lease without the necessity of a new lease".

$5f.$ $\ldots$ $\ldots$ $\ldots$

It is quite clear from the provisions of Section $24(I)$ that the lessee is given a right to apply for relief against forfeiture in an action brought by him. It is also clear that the Court has a wide discretion to grant such relief on such

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terms as it deems fit. But it is well established that that discretion must be exercised judicially and on proper grounds. It is also apparent from the Section as a whole that it is concerned with relief against forfeiture for non-payment of rent only, and not for breach of other covenants in a lease. To this extent it is different from the provisions of Section $32(I)$ and (5) of the Public Lands Act which gives the High Court power to grant relief against forfeiture in case of re-entry for breach of any covenant in a lease of public land. The relevant provisions provide as follows:-

> $"(1)$ Sabject to the provisions of this Section where,

- (a) the rent or royalties or any part thereof reserved to the controlling authority in a lease of public land are, at any time unpaid for a period of six months after the same have became due, whether payment thereof has been demanded or not, or - (b) thereis any breach or non-observance by the lessee of any of the conditions or covenants, express or implied, contained in such a lease,

the controlling authority may at any time thereafter re-enter upon the land leased or a part thereof in the name of the whole and the same shall thereupon revert to the controlling authority. **.....................................**

(5) A lessee whose land has been re-entered under the provisions of this Section may within three months of the re-entry apply to the High Court for relief; and the High Court upon any such application may grant to the applicant such relief upon such terms as it sor fit".

The word "lessee" includes "sub-lessee" under Section 54 of the Act. Bat in order for a lessee to invoke the provisions of Section $32(5)$ it appears that the re-entry of forfeiture must have been effected by a controlling authority and not as in this case where it was effected by an individual lessor.

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Be that as it may, it was submitted that relief against forfeiture could not be considered because it was not specifically prayed for in the plaint. In his judgment the learned trial Judge had this to say on the matter;

> "When I was considering issue No.4 I made my finding as to the position of the parties regarding the relief of forfeiture, but for the sake of clarity and emphasis I would like to say that the relief against forfeiture would have been granted to the plaintiff had the property been properly transferred to him. Although under the provisions of order 6 rule 6 of the Civil Procedure Rules a party is bound by his pleadings, in this case that defect would have been cured by the general prayer appearing in the plaint for any other relief Rambhai & Co Uganda Ltd V. Laiji Fatima & Another (1970). E. A. $106$ at p. $108"$ .

Although I do not see how the authority cited by the learned trial Judge supports his conclusion, I am unable to say that he came to a wrong conclusion. In my opinion it would have been better pleading to specifically pray for relief against forfeiture or to amend the pleadings to include such relief. However it seems that such relief could be considered under the general prayer for "further or other relief". Moreover, the issue of relief against forfeiture was seriously canvassed at the trial as it was included in issues 54 and 5 namely whether the suit property was liable to forfeiture and if so what remedies were upon to the Appellant. The remedy of relief against forfeifure was one of those available to the Appellant, and therefore the trial Judge was justified in considering it.

As regards the reasons why the trial Judge should have granted relief against forfeiture, Mr. Kateera, learned Counsel for the Appellant, submitted that the Appellant did not pay rent

$\frac{1}{4}$

because he did not know anybody to whom to pay because Mr. Buzabo was in exile and the respondent took some time before she obtained probate from the High Court to administer the estate of her grandmother who had died. Learned counsel contended that since there was nobody to whom rent could be paid, equity could not force the appellant to do the impossible. Moreover counsel argued, his client had always been ready and willing to pay the rent. He submitted further that failure to grant relief to the appellant would lead to serious personal consquences as the appellant would lose a valuable property. Moreover counsel concluded even if the conduct of his client was subject to censure, this would not prevent the court from exercising its dicretion in his favour because the object of the clause of forfeiture was to ensure payment of rent.

Mr. Dollo, for the respondent, submitted that the appellant could not be granted relief against forfeiture because he did not come to equity with clean hands. He argued that the appellant's behaviour prior to re-entry and after it was high-handed in that he took army men to harrass the respondent who was arrested and detained at the police station and secondly the respondent made no attempts to settle the matter before re-entry, and when he heard that the respondent was looking for him he replied that he should not be bothered. Furthermore Mr. Dollo submitted two other grounds upon which relief should not be granted. The first is that the default of 7 years in payment of rent was too long. The second is that a third party was interested in the suit property because the property had been rented to pransocean Ltd by the respondent. Counsel

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relied on the case Public Trunstee V. Westbrook (1965) I WLR 1160 To support his arguments.

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It is trite law that the proviso for re-entry on nonpayment of rent is regarded in equity as merely a security for rent and therefore provided the lessor can be put in the same position as before the lessee is entitled to be relieved against forfeiture on payment of rent and any expenses to which the lessor has been put: See 23 Halsburys Laws of England ARD Edn, para, 1409 page 681. The principle that the law leans against forfeiture is re-emphasised by Meggary and Wade in their book, The Law of Real Property, 2nd Edn, p. 63, where theystate,

> "The law leans against forfeiture and a $\mathbb{R}^2$ rd suing for it is put to strict proof of his case. Moreover, both equity and Statute have intervened so as to allow tenants to rescue themselves from liability to forfeiture in certain cases. There are different sets of rules for forfeiture for non-payment of rent and for forfeiture for others. This is because / would very commonly relieved /equity a tenant against forfeiture for failure to pay rent but as a general rule refused relief in all other cases/ Accordingly, relief in case of nonpayment of rent is given by equitable jurisdiction. as amended by Statute; in other cases there is purely statutory jurisdiction which is quite distinct".

In the present cace a number of grounds have been advanced as justifying a refusal to grant relief against forfeiture. The first is that the conduct of the appellant was high-handed and uncompromising Mr. Kateera argued that this was irrelevant as extraneous matters could not be considered to deny a tenant relief. He cited the decision in Gill v. Lewis (1956) I All E. R. 844 at p. 85 where Jenkins L. J, said,

> "In my view, as the conclusion of the whole matter, the function of the court in exercising this equitable jurisdiction is, save in exceptional circumstances, to grant relief when all that is

> > $...$ $...$ $-16$

due for rent and costs has been paid, and (in general) disregard any other complaint that the landlord may have against the tenant. The question is whether provided all is paid up, the landlord will not have been compensated, and the view taken by the court is that if he gets the whole of his rent and costs, then he has got all he is entitled to so far as rent is concerned, and extraneous matters of breach of covenant are generally speaking irrelevant. There may however be very exceptional cases in which the conduct of the tenants has been such as in effect to disquality them from coming to the court and claiming any relief or assistance whatever. The kind of case I have in mind is that of a tenant falling into arrear with rent of premises which he was notoriously using as adisorderly house, It seems to me that in a case of that sort if the landlord brought an action for possession for non-payment of rent, and the tenant applied to the court for relief, the court on being apprised that the premises were being consistently used for immoral purposes, would decline to give the tenant any relief or assistance which would in any way further his

use or allow the continuance of his use of the

house for those immoral purposes".

In Gill v. Lewis (supra) the court held that the fact that the tenants had been bad payers in the past or elusive when attempts were made to serve them were irrelevant matters for consideration when exercising the discrection to grant relief against forfeiture for non-payment of rent. As it is clear from the above passage, the only instance relating to the conduct of the tenant that the court was prepared to consider was where the tenant was ; using the premises as a disorderly house or for other immoral purposes. On this authority therefore it may appear that the high handed conduct of a tenant may not be sufficient to deprive him of relief against forfeiture.

But in Gill v. Lewis (supra) the court also held that relief could not be granted where the parties had albered their positions, for instance where the landlord had leased the property to a third party. The Court referred to the case

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of Newbolt V. Bingham (1895) 72 T. L. R. 852, where Lord Esher M. R. Said at p. 583.

> "If at the time relief is asked for the position has been altered so that relief could not be given without causing injury to third parties I think that the case that was cited to us Stanhop V. Haworth (1886) 3 T. L. R. 34 applies".

In the same case Righy L. J. said, at p. 854,

"I am of the same opinion. It was the settled practice of a court of equity to grant relief against forfeiture for non-payment of rer, on payment of all rent in arreas and costs. . )f course, the court was not absolutely bound by its practice where it would not do justice, and if some new interest had been created before the application, the court could refuse to interfere. That was not done to put the landlord in a better position, but because the rights of third parties had intervened".

In the instant case there is evidence that the suit premises were leased by the respondent lessor to a third party, Transocean Ltd., one year after the appellant had instituted his action in the High Court. Therefore the subsequent leasing of the suit property cannot prevent the appellant from obtaining relief against forfeiture.

Another ground advanced for refusal to grant relief against forfeiture is that the period for non-payment of rent has been too long. It is conceded that the appellant has not paid rent in respect of the suit property since it was transferred to him in December 1979. The appellant instituted his action in November 1986, that is after a period of seven years. Mr Dollo for the appellant relied on the authority of Public Trustee V. Westbrook & Another (1965). 3 All E. R. 398. In that case it was held that due to exceptional circumstances namely the fact that the site was bombed and twenty two years had passed without any rent being paid and everyone had treated the sublease as gone altogether, trial judge had exercised his

> 18 $\cdots \cdots \cdots /$

discretion properly to refuse to grant relief against forfeiture. Lord Denning said at p. 1400,

> "It does seen to me that this is a case which is most exceptional for outside the ordinary cases. When a period of time has passed such as here twenty two years without any rent being paid at all, without anyone treating a lease as in existence, it seems to me that quite a strong case must be put forward in order to obtain relief".

In the present case the period is not as long as twenty two years but it is long enough to show the appellant's callous disregard of his obligations as a lessee. It seems he assumed that there was no lessor. It is true the the original lessor died and that it took some time for the respondent to obtain probate and become the registered proprietor of the suit propery. But there is no evidence that the appellant made efforts to discover who his lessor was, and to tender the required rent. Even when he knew who his lessor was, he did not offer to pay the arreas of rent to the appellant or into court and instead filed an action against the respondent.

It was submitted on behalf of the appellant that refusal to grant him relief would cause him . personal consequences. Learned counsel for the appellant cited the case of Sport International Bussum BV and Others V. Inter - Footwear Ltd (1984) I All E. R. 376 where the dictum of Goff L. J, in the Gandinavian Trading Case (1983) I All E. R. 301 at p. 307 was quoted as follows:

> "However, the cases where equity has intervened are cases where parties were frequently not at arms length and frequently also where the relevant contract conferred an interest in land, the loss of which could have serious personal consequences".

> > $600000$

The serious personal consequences that were advanced in the present case were that the appellant would lose a large amount of money through the forfeiture of such a valuable property, whereas the respondent would receive a windfall, thus resulting into unjust enrichment to her. On the other hand counsel for the respondent argued that the appellant had benefitted from the suit property for a lang period by mortgaging the property, and sub-letting it. I am not satisfied that the appellant has made out a sufficient case to establish that the loss of the suit property would have serious personal consequences on him, apart from the ordinary loss of the property.

In my opinion, however, I do not find that the above are sufficient grounds to justify the refusal to grant relief against forfeiture. But there are additional grounds advanced in the cross-appeal to support the refusal to grant relief against forfeiture. In ground I(c) the respondent complains that the trial judge erred in law when he held that subleasing of the suit premises by the appellant was not a breach of the lease covenant. It is the case for the respondent that subletting was a breach of the covenant entitling the respondent to forfeiture of the lease.

The learned trial judge held that there was no breach of the covenant against subletting without the consent of the lessor because there was nobody from whom consent could have been obtained. In his judgment, he said,

$\mathbf{p}$

"As far as the issue of the plaintiff subleasing the premises to one Averino without the consent of the lessor is concerned, the plaintiff explained that he was unable to obtain such consent because there was nobody from whom he could get According to the evidence available the it. headlessor died sometime in 1984 and the defendant was granted probate on $21/2/86$ , that means property remained in state of bona vacantia (without lawful owner) between $3/5/84$ when the head

$\ldots \ldots \ldots / 20$

lessor died and 21/2/86 when probate was granted. According to Exh. D. 3 the property was publeased to averono sometime in May 1985 that being part of the period during which the property was still bona vacantia. In these circumstances I agree with the plaintiff when he says that at the time the property was subleased to Averono there was nobody in existence to give the necessary consent. With due respect to Mr. Owiny, I do not think that the case of Breach Ltd. V. Uganda Company and Uganda Industrial Machinery Ltd (1975) H. C. B. 213 is applicable to the present case. The two cases are distinguishable as submitted by Mr. Kateura, in that the facts of the two cases are quite different. In the case which has just been quoted there was somebody available to give the necessary consent but in the present case there was nobody in existance who could legally and validly give consent. It is my $\mathtt{holding}$ that the plaintiff was not in breach of the terms of the covenant as contained in paragraph I (d) of the lease when he subleased the property to Averono as there was nobody from whom the consent could be obtained".

With respect, I am of the opinion that the learned trial judge erred in holding that the suit property was bona vacantia at the time the appellant sub-let it to Averono. The expression bona vacantia is applicable only when there is no one claiming an interest in the goods or property. It might be applicable where a person dies intestate without leaving anybody to claim an interest in the property in which case it would belong to the State. In the present case however the doceased left a will in which Ste appointed the respondent the executrix of the will. Once she obtained probate and became the registered proprietor she is deemed to have acquired the title from the time of her grandmother's death, according to Section 143 of the Registration of Titles Act, which provides in the relevant part that,

> "The title of every executor or administrator becoming a transferee under this Section shall upon such entry being made relate back to and be deemed to have arisen upon the death of the proprietor of any land lease or mortgage as if there had been no interval of time between death and entry".

......./ $21$ .

In these circumstances, therefore, it cannot be said that the suit property was bona vacantia at the time it was let to AVERONO.

In the head-lease operating between the appellant and the respondent the appellant covenanted with the respondent in clause I (d) as follows:-

> "Not to sub-let transfer the whole or any part of the premises hereby demised without the prior written consent of the lessor but such consent not to be unreasonably withheld in the case of the lessee wishing to sublet or transfer all or any part of the said plots".

It is common ground that the appellant did not comply with that covenant by subletting the property to Averono without the consent of the lessor. I can find nothing in that clause or in the lease to excuse or authorise the appellant in taking the action he did by failing to comply with it. Accordingly. I would hold that the appellant breached the covenant against sub-letting and the trial judge was wrong in holding otherwise.

It is doubtful if the trial judge would have granted relief against forfeiture for breach of covenant against sub-letting. As it has been seen under Section 24 of the udicature Act the power of the Court to grant relief against forfeiture is limited to cases of non-payment of rent. Under S. 32 of the Public Lands Act, the $\cdot$ can only apply for relief against forfeiture for breach of covenant if the controlling authority has re-entered the land. It seems therefore that both these provisions are inapplicable to the present case and therefore the appellant cannot apply for relief under any of them. In 23 Halsburys Laws of England 3rd Edn para 1406 p. 67% it is stated.

$21$

......./ $.^22$

"Covenant against assignment: Before 1st January 1926, relief could not be granted against forfeiture in respect of breaches of covenants conditions against assigning underletting or parting with possession or disposing of the land demised and no relief can now be granted in respect of such breaches committed before that date".

The change in law in England was brought about by S. 146 of the Law of Property Act 1926 replacing S. 14 of the Conveyancing Act 1881. The Law of property Act is not applicable in Uganda, and if the Conveyancing Act was applicable to Uganda, such covenants were excepted from its operation so that no notice had to be given prior to enforcing a right of re-entry for forfeiture nor could relief in such a case be obtained in equity. It may be that Section 32 of the Public Lands Act was intended to rectify this situation, but as I have observed it does not appear to apply to the present case.

I shall now deal with the remaining grounds of the crossappeal. Ground I(a) attacks the trial IDGE's failure to award costs of the suit to the respondent. In refusing to award costs to the respondent, the trial judge gave the following reasons in his judgment.

"It is trite law that a party seeking an order against forfeiture must pay the costs of the proceedings against the lessor, although that principle has its orgin in the British law in my view it is applicable to this country; a similar view was expressed in Dehnar's case (supra) (1957) E. A. 104 at p. $\overline{107}$ by East African Court of Appeal. But that rule is not a rule of absolute application it must be applied with regard to other matters relating to a particular case. In the present case the relief against forfeiture has not been granted to the plaintiff and both the defendant and the plaintiff acted with some degree of unreasonableness which resulted in this matter coming to court; for these reasons and in line with the legal jargon. Ex ae quo et bono (on the basis of reasonableness and fairness) I feel that it is only fair for each side in these proceedings to bear his/her own costs inclusive costs for the counter-claim".

$...$ $23$

The main reason given for refusal to award costs to the respondent who was the successful party is that both parties acted unreasonably thus loading to this action. The issue is whether this was a sufficient reason to deny the respondent her costs.

Under Section 27 of the Civil Procedure Act the court is given a discretion to determine by whom costs of the proceedings should be paid and the amount of such costs. The proviso states,

> "Provided that costs of any action cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order".

The general rule therefore is that costs should follow the event and a successful party should not be deprived of them except for good cause. See Janmohamed v. Twentsche (1967) E. A. 28. Mulla on Code of Civil Procedure 12th Edn. p. 150 explains what may amount to good cause,

> "The general rule is that costs khall follow the event unless the court for good reason otherwise orders. This means that the successful party is entitled to costs unless he is guilty of misconduct or there is some other good cause for not awarding costs to him. The court may not only consider the conduct of the party in the actuallitigation but matters which led up to the litigation".

In Kiska Ltd v. De Angelis (1969). E. A. 6, Sir Clement de lestang Ag. p. reiterated the same principle and went on to consider principles upon which an appellate court should interfere with an order for costs made by the trial judge. He said at p. $8$ ,

$\mathcal{D}$

"In Devram Nanji Dallani V. Haridas Kahdas Dawda (1949) 16 E. A. C. A. 35, the Court of Appeal held that a successful defendant can only be deprived of his own costs when it is whown that his conduct either prior to or during the conduct of the suit has led to litigation

$\cdots$

$23$

which but for his own conduct might have been averted. In that case the following passage<br>from the judgment of Lord Atkinson in Donald Campbell v. Pollak (1927) A. C. 732 at $\overline{p}$ . 813 was applied.

"It is well established that when the decision of such a matter as the right of a successful litigant to recover his costs is left to the discretion of the judge who tried his case that discretion is a judicial discretion and if it be so, its exercise must be based on facts. If however there be in fact some grounds to support the exercise by the trial judge of the discretion he purports to exercise the question of the sufficiency of those grounds for this purpose is entirely a matter for the judge himself to decide and the court of appeal will not interfere with this discretion in that instance".

The learned Ag. President concluded,

"Thus where a trial court has exercised its discretion on costs an appellate court should not interfere unless the discretion has been exercised unjudidiously or on wrong principles. Where it gives no reason for its decision the appellate court will interfere if it is satisfied that the order is wrong. It will also interfere where reasons are given if it considers that those reasons do not constitute good reason within the meaning of this rule".

Applying the above principles to the present case, it appears to me that the reason given by the learned trial judge to deprive the respondent of her costs did not amount to good cause. First, according to the learned trial judge, it is not only the respondent who acted unreasonably before the institution of the proceedings but also the appellant. Therefore, it cannot be said that is is only the respondent who was guilty of misconduct or whose conduct led to litigation which but for his own conduct might have been averted. Secondly the respondent was entitled to reenter the premises upon the appellants breach of covenants in the lease and the appellant cannot complain that it is the conduct of the respondent which

....... $/29$ ..

led to this litigation. In my judgment, the trial judge exercised his discretion wrong principles in refusing to award the respondent her consts, and this court is, therefore, entitled to interfere. I would accordingly hold that the learned trial judge erred in law in refusing to award the respondent costs of the suit.

The respondent complains in ground 2 of the crossappeal that the learned trial judge erred both in fact and law when he held that there was no denial by the appellant of the respondent's title. In his judgment the learned trial judge said.

> "Regarding the issue of whether or not the plaintiff denied the lessor her title to the property I would say that there was no evidence on record indicating that the plaintiff at any time had denied the defendant her title to the property. Mr. Owiny's contention that when the plaintiff said that he did not know the defendant amounted to denying her title is without foundation and cannot be taken seriously. What the plaintiff meant is that so long as his lease was still in existence he should be regarded as the only person legally entitled to occupy the premises, but he did not mean to say that there was nobody with a superior title .than his own. It must also be said in favour of the plaintiff that until the defendant started moving up and down making some loud noises about the house the plaintiff did not infact know who was the real owner of the premises now under dispute".

I am unable to say that the learned trial judge came to a wrong conclusion that there was no denial of the respondent's title. I agree with the contention of Mr. Kateera that the appellant did not deny the respondent stitle because he did not say that the freehold title belonged to someone else, but merely stated that the respondent was entitled to the reversion of his lease. In these circumstances, the appellant was merely protecting his title. This ground of the cross appeal must therefore fail.

$.... / . . . . / . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$

The last ground of cross appeal is that the learned trial judge erred in fact and law when he held that the appellant can avail himself of the provisions of S. 184 of the Registration of Titles Act and bring an action for the ejectment of the respondent. It was submitted on behalf of the respondent that a leassee cannot bring an action to eject his landlord contrary to Section 184 nor can be bring an action in tresspass against his landlord. In support of these submissions counsel for the respondent relied on the recent decision of this court in the Executrix of the Estate of the late Christine Mary Namatovu Tebajjukira and Another V. Noel Grace Shalita Stananzi Wivil Appeal No. 2 of 1988 (unreported). On the other hand it was submitted on behalf of the appellant that decision does not decide the point that a lessee cannot sue a lessor in tresspass, and that he can do so on the authority of Chapman v. Honing (1963) 2 QB 503. It was further submitted that Section 184 does not bar the tenant from getting relief from the lessor who has breached the lease, and that a person who

; cannot mantain an action is one she has no relationship of landlord and tenant.

I agree with Mr. Kateera learned counsel for the appellant that this court did not decide the point of law whether a lessee can sue a lessor in trespass in the Tebajjukira case. The court did not find it necessary to decide the point but expressed strong doubts about it Wambuzi, C. J., who gave the leading judgment said,

> "In view of this finding I find it undecessary to decide the second ground of appeal, whether a lessee can sue a lessor in trespass. Mr. Dollo did not refer to any authorities when he argued this ground. I may observe, however, that every case

> > $\mathbf{\rho }$

$... R7$

must be decided on its own facts. It is well established that to maintain an action for trespass the plaintiff must have possession. If therefore the lessor who is the registered proprietor and therefore has legal possession and a superior title is in physical possession it may be a little difficult to see how an action can be maintained against him in trespass. A lessee's possession is founded on agreement without which the basis for his possession disappear. Of course there are other remedies for breach of the covenants of the lease which are not excluded. For example damages for breach of contract or breach of the covenant for quiet enjoyment if the re-entry was not lawful, Besides how can the lessor monitor observance of the covenants in the lease if at any time he may face an action in trespass. Is this not the basis for the covenant for quiet enjoyment?".

## In that case I observed,

$\hat{f}$

"I also agree that it is doubtful whether a lessee or tenant can sue his lessor or tenant can sue his lessor or landlord in trespass since trespass is a tort against possession and a lessor certainly retains legal possession of the leased property".

It seems that Lord Henning MR was of a different view in Chapman v. Honig (supra). In that case, a tenant gave evidence in an action by a former fellow tenant against their common landlord for trespass and conversion of goods. Judgment

was given against the landlord. The following day the landlord served notice to quit on the tenant who had given evidence. The tenant stayed on and attempts were made by the landlord to padlock the doors of his flat. The tenant obtained an injunction, but difficulties continued until the tenant vacated the house. He brought an action against the landlord alleging trespass and breach of covenant for quiet enjoyment and alleging that the landlord's action in giving him notice amounted to contempt of court. The trial judge found that the plaintiff was entitled to damages. The landlord appealed and his appeal was allowed. The court held (Lord Denning dissenting) that the tenant had no right of civil action for damages for

$\frac{1}{28}$ ......../28...

$-27.$ even if the landlord's victi. sation amounted to contempt of court, rendering him to punishment by court, the notice to quit was a valid exercise of the landlords contractual rights vis-a-vis the tenant and effective to terminate the tenancy and his vindictive notive for serving it was irrelevant. In his dissenting judgment Lord Denning MR observed at p. 510,:

> "To my mind the whole case depends upon one point: When the landlord served this notice to quit, was his act lawful or unlawful? If it was lawful, so that the notice to quit was good, then I think the plaintiff must fail. He cannot complain of being evicted if his tenancy has been validily terminated: . See Hemmings V. Stoke Poges Golf Club (1920) I K. B 720. But if it was unlawful so that the notice to quit was bad, then the plaintiff must succeed; for in that event the conduct of the landlord in putting padlocks on the doors and attempting to evict the tenant was undoubtedly a trespass and a breach of covenant for quiet enjoyment".

It does appear therefore that the case of Chapman $v$ . Honig did not decide the issue whether a tenant can sue his landlord in trespass, but the dictum of Lord Denning seems to indicate that a landlord can commit a trespass against his tenant if for instance he padlocks his tenant's premises in breach of the tenancy.

In the present case the appellant did not sue the respondent in trespass but based his action on breach of covenant for quiet enjoyment. The learned trial judge so found. This case is therefore distinguishable from the case of The Executrix of the Estate of the Late Christine Mary Namatovu Tebajjukira (supra) where the tenant brought an action in trespass against the landlord. The point whether a tenant can sue his landlord in trespass need not be decided in the present case.

As regards the question whether a tenant can bring an action against his landlord for ejectment, Section 184(b) of

$...$ / 22.

the Registration of Titles Act provides in material particulars as follows:

> "No action of ejectment or other action for the recovery of any land shall lie or be sustained against the person registered as proprietor under the provisions of this Act,<br>except in any of the following cases-

#### . . . . . . . . . . . . . . . . . . . .

$(b)$ the case of a lessor as against a lessee in default

## . . . . . . . . . . . . . . . . . . . .

and in any case other than aforesaid the production of the registered certificate of title of lease shall be held in every court to be an absolute har and estoppel to any such document as the grantee owner, proprietor or lessee of the land therein described, any rule of law or equity to the contrary not withstanding".

This court considered the above provisions in the Tebajjukira case (supra) and came to the conclusion that a lessee has no right to bring an action of ejectment against his lessor, under those provisions. Wambuzi C. J., had this to say on this point,

> "It seems to me that paragraph (b) of the Section simply means that a lessor may bring an action of ejectment or recovery of land against a lessee who is in default not withstanding that the lessee is registered as proprietor of the lease. There is no provision for the converse. In other words there is not provision that in the case of a lessee as against a lessor in default that is to say when it is the lessor foo is in default and not the lessee. Accordingly in my judgment the case of a lessee purporting to bring an action in ejectment or recovery of land against his lessor falls under "any case other than as aforesaid" in S. 184 in respect of which the production of a registered certificate of title is an absolute bar and estoppel to any such action. The expression "any rule of law or equity to the contrary not withstanding" must have been designed to rule out relief against forfeiture where the registered proprietor has re-entered".

3 29

$\frac{30}{100}$

In the present case, the appellant did bring an action for re-possession of land which was being occupied by the respondent. It is clear therefore that the appellant was seeking ejection of his lessor or recovery of land from her which is not permitted by the provisions of Section 184. The learned trial judge, was therefore in error in holding that those provisions were inapplicable to the present case. Accordingly this ground of cross-appeal must succeed.

For the reasons I have given, I would dismiss this appeal and allow the cross-appeal. As the appellant has succeeded on the second ground of appeal, I would order the appellant to pay the respondent half the costs of this appeal and the costs of the cross-appeal, as well as the costs in the court below.

Dated at Mengo this 18th day of July 1990.

SIGNED:

J. ODOKI JUSTICE OF THE SUPREME COURT.

I CERTIFY THAT THIS IS A TRUE COPY OF THE ORIGINAL.

B. F. B. BABIGUMIRA, REGISTRAR SUPREME COURT.

IN THE SUPREME COURT OF UGANDA

#### AT MENGO

(CORAM: WAMBUZI, C. J., ODOKI, JS. C., AND PLATT, J. S. C.)

## CIVIL APPEAL NO. 6 OF 1989

#### **BETWEEN**

#### FRANCIS BUTAGIRA :::::::::::::::::::::::::::: APPELLANT

$AND$

DEBORAH NAMUKASA ::::::::::::::::::::::::::::::: RESPONDENT.

> (Appeal from the judgment of the High Court of Uganda at Kampala (kato J.) dated 12th October 1988

> > IN

# Civil Suit No. 1357 of 1986)

# JUDGEMENT OF WAMBUZI, C. J.

I have had the benefit of reading in draft, the Judgement prepared by the learned Odoki, J. S. C. and I agree that the appeal must fail although the appellant succeeds on his second ground of appeal. One issue raised by the second ground of appeal is whether the absence of consent rendered the transfer of the property null and void or whether the transaction was merely voidable and if so by whom? This issue is really one of construction of the relevant laws. The predecessor to this court considered the issue of consent in Broadways Construction Company versus Kasule and others 1972 E. A. 76. After citing the provisions of section 2 of the Land Transfer Act which require consent, Lutta JA said at page 78,

> "The wording of this section is very $\Box$ wide indeed and clearly shows that the intention of the legislature was to prohibit both the occupation or entering into possession by a non-African of mailo land whose registered proprietor is an African, by or through any transaction, whatsoever, to which the Minister has not given his consent, and to

> > $...$ /2...

make any contract to purchase or to take on lease or accept any interest in the same without the consent of the Minister. In otherwords, the wording of $S.2$ is so wide as to render any transaction which does not have the Minister's consent illegal. $\mathbf{A}$ breach of S.2 becomes punishable under S.4 $(1)$ . Thus to try to enforce a transaction or a sontract which did not comply with the requirements of S.2 would be trying to enforce an illegal transaction on contract."

Later in his judgement, the learned Judge of appeal concluded,

"the contract and the entering into possession of the land before the consent was given were prohibited by law and the contract was therefore void ab initio ......"

The wording of $S.22$ (5) (c) of the "ublic Lands Act 1969 does not prohibit subletting. It merely provides that a covenant not to sublet without consent shall be implied in the lease. The provision also provides that the covenant shall be enforced by the controlling authority against the leasee and $S.32$ (1) provides how breaches of such covenants may be enforced. I agree that the absence of consent under $S.22$ (5) (c) of the Public Lands Act does not make the transaction void ab initio but voidable and at the instance of the controlling authority.

On the issue of relief from forfeiture for non-payment of rent, I accept that in gen ral when all that is due for rent and costs have been paid, any other complaint that the land-lord may have against the tenant should be disregarded. To My mind this means that in particular, a court must have regard to the nature of the complaint and how it affects the contractional relationship between the parties. Extreme high handedness on the part of one party may estrange the

$.../3$ .

$\mathsf{Z}$

relations between the parties and I do not think that the court should force an unwilling party to continue with a contract if that party may thereafter remain in perpetual fear of the other party, as could have happened in the case before us. I am absolved from making a decision one way or the other because I agree that apart from breach of the covenant to pay rent, the appellant was also in breach of yet another covenant of subletting without the consent of the respondent. As Platt, J. C : 1999 with the judgement and orders of Odoki, JSC, there will be an order in the terms proposed by the learned Odoki, JSC.

DATED at Mengo this 18th day dof July 1990

SIGNED:

S. W. W. WAMBUZI CHIEF JUSTICE.

I CERTIFY THAT THIS IS A TRUE COPY OF THE ORIGINAL

B. F. B. BABIGUMIRA, REGISTRAR SUPREME COURT.

$\mathcal{L} = \mathcal{L}$

#### IN THE SUPREME COURT OF UGANDA

#### AT MENGO

(CORAM: WAMBUZI, C. J., ODOKI, J. S. C., AND PLATT, J. S. C.)

#### CIVIL APPEAL NO. 6 OF 1989

#### **BETWEEN**

FRANCIS BUTAGIRA **:::::::::::::::::::::::** APPELLANT

AND

DEBORAH NAMUKASA **\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\***

> (Appeal from the judgment of the High Court of Uganda at Kampala (Kato J.) dated 12th October 1988

> > TN

## CIVIL SUIT NO. 1357 of 1986)

#### JUDGMENT OF PLATT, J. S. C.

I have had the benefit of considering the judgements of Odoki, J. S. C. $\leftarrow$ Wambuzi, C. J. in draft.

I agree that on ground 2 of the appeal the lease was merely voidable and that the controling authority had not acted to cause the lease to be void.

On ground 4, concerning relief against forfeiture the arguments raised by the appellant fall under ground 4 of the cross appeal. This court gave strong guidance in THE EXECUTRIX OF THE ESTATE OF THE LATE CHRISTINE MARY NAMATOVU TEBAJJUKIRA & @NOTHER VS. NOEL GRACE SHALITA STANANZI Civil Appeal No. 2 of 1988. We were nor asked to reconsider that decision which was bound to guide the Court. It seems to me that it should stand until the Court is asked to reaconsider it fully.

I therefor agree that no claim could be put forward for relief against forfeiture. I would venture to suggest that this issue could be decided, since it had been made an issue for trial. The words in the general prayer for further

$...$ /2...

and other relief, are nor apt by themselves to allow much an issue to be decided if not pleaded. But the parties may make a matter not pleaded an issue in the trial, if the Court agrees. It is of course better to amend the plaint.

I would agree with the orders proposed.

DATED: At Mengo this ... 16th.. day of ... July...... 19..... SIGNEDL

$\overbrace{\hspace{1.5cm}}$

# H. G. PLATT, JUSTICE SUPREME COURT.

I CERTIFY THAT THIS IS $\ensuremath{\mathrm{A}}$ TRUE COPY OF THE ORIGINAL.

B. F. B. BABIGUMIRA, REGISTRAR SUPREME COURT.