Kananura Melvin Consulting Engineers & 7 Others v Kabanda (Civil Appeal 31 of 1992) [1992] UGSC 21 (1 December 1992)

Full Case Text

IN THE SUPREMI COURT OF UGARDA

## AT LENGO

(CORAM: MANYINDO - DCJ, ODER - JSC, PLATT - JSC)

## CIVIL APPEAL NO. 31/92

## between

KANANURA LELVIN CONSULTING ENGINEERS & 7 ORS.

**AFFELLANTS** $\bullet\bullet\quad\bullet\bullet$ $\bullet\bullet\quad\bullet\bullet$ $\cdots \quad \cdots$ $A$ $N$ $D$

CONNIE KABANDA RESPONDENT $\mathbf{:}$ $\colon$ : $\mathbf{:}$ $\div$ $\mathbf{...}$ $\cdots:$

> (Appeal from the Judgement & Decree of the H/C at Kampala (Lrs. Justice A. E. Apagi - Bahigeine) dated 27th August 1991, in H. C. J. S. No. 884 of 1990).

## JUDGLEHT OF MANYIHDO Z DCJ:

This is an appeal against the judgment and orders of Bahigeine. J delivered in the High Court at Kampala on 27-5-91. The respondent was the plaintiff in the suit. She sued the appellants for general damages for breach of contract and trespass to property; special damages of Shs. $4,310,000/=$ as arrears of rent and incidental expenses; exemplary or agaravated damages for resisting re-entry; an eviction order; interest and costs of the suit.

The respondent is a businesswoman, based at Kabalagala near Kampala. She is the registered proprietor of a residential house situate on Plot No. 300 - Kabalagala, (hereinafter to be referred to as the suit property). By a lease agreement dated $11-6-69$ she rented the suit property to the first defendant firm for a term of three years at a monthly rent of Shs. $120,000/=$ .

$\frac{1}{2}$

$Box$ 19

2 UU

The rent was to be revievzed at the end of each year. The full rent for the first year was paid on the execution of the tenancy agreement. At her special instance, she was also The paid the full rent of the second year at the sametime, total amount paid was thus Shs. 2,88^000/=.

r in respect of the second year. The first appellant refused was estopped from increasing it. On 30-4-90, the respondent notified the first appellant *of* her intention to raise the met from Shs. 120,000/= per month to Shs. 450,000/= per month with effect from 11-8-90 to pay the increased rent on two grounds; . Jirst, that they had not been consulted, let alone consented to the rent being increased and, second, that as the respondent had commuted the rent for the second year and received it in advance, she

The respondent then attempted to levy distress and also evict, the first appellant from the suit premises but her actions The balance was therefore neers in an attempt to secure re-entry. She claimed this sum as special damages together with a sum of Shs. 350,000/= allegedly paid to Auctiosuit were resisted by the first appellant, hence the filing of the <2n 16th October 1990\*-She claimed the balance of rentfor the second year at the increased rate of Shs. 450,000/= per month, less Shs. 1,440,000/= received. Shs. 3,960,000/=.

In the plaint the first appellant was described as a limited liability company incorporated in Uganda and was sued alone in that capacity. The. true position was that the first appellant was not a limited liability company but a partnership.

In the amended appellant firm. On realising this the respondent amended her plaint under 06 rule 19 of the Civil Procedure Rules. plaint which was filed on 13-11-90, the six eo - defendants/ appellants were added as partners in the first defendant/

contending that •he action was misconceived on account of misjoinder of parties\* In the alternative, they contended that the purported increase of rent was illegal as it was done arbitrarily and outside the provisions of the tenancy agreement and after the respondent had demanded and obtained in full the rent for the second rental year. The first appellant therefore sought an injunction restraining the respondent from evicting the appellants from the suit premises for non - payment of rent until 7-11-91 when the first two years would expire. The appellants denied the claim,

Two issues were framed for determination by the trial Judge. The first was whether respondent Nos 2 to 7 were prohow much. The respondent gave evidence after which she closed her case. Counsel for the appellants then submitted that a But the submission failed. Counsel then successfully sought, an ad-But he witnesses perly joined as defendants and the second issue was whether there was any arreas of rent due to the respondent and if so journment to enable him trace his witnesses. did not come to Court on the due date. of defendants and, case to answer had not been made out, because of misjoinder alternatively, issue estopped.

$\div$ $L$ $\Rightarrow$

Counsel applied for a second adjournment but the application was resisted by Counsel for the respondent and rejected by the trial Judge. Counsel for both parties then made their final addresses on the case.

In her judgment the trial Judge answered both issues in the affirmative. On the first issue the Court said this:-

> I do not think this was a valid objection (of misjoinder). A party is at liberty to $\frac{1}{2}$ sue or join any party he wishes to the suit. The law is that 'no cause or matter shall be defeated by reason of the misjoinder or nonjoinder of any party; and the Court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and $\frac{c}{c}$ of the persons who are parties to the cause or matter! - See Odgers on pleading and Practice (sic) - 18th Edition by $G_{\bullet}F_{\bullet}$ Harwood p.p.15.

Mr. Sendege should perhaps have invoked Order 1 Rule 13 CPR which provides 'Any application to add or strike out or substitute a plaintiff or defendant may be made to the Court at any time before trial by motion or summons or at the trial of the suit in a summary manner. See also $0 \perp R$ 10(2) CPR which has the same effect.'

Nonetheless Ms. Kadaga informed me her search had revealed that Defendants $2 - 7$ were still on the register as current members of Def. No. 1 - Kananura Melvin Consulting Engineers. Heretoo a certified copy of the return would have proved appropriate though this is not to be understood as saying I doubted her statement. I therefore come to the conclusion $\mathbf{u}_{\perp}$ that the right parties were sued.

With regard to the second issue the trial Judge was of the view that as the tenancy agreement contained a provision for review of rent at intervals of one year, the respondent was at liberty to increase rent at any time in certain circumstances. She said:-

interes to

$\mathsf{S}$ $\div$

$\clubsuit$

"This clause controls agreement. Ar. Sendege's argument was that since payment had been effected, the plaintiff could not go behind and review the rent. This can hardly be - correct in view of the wording of the clause, for two reasons. First, payment of rent is never conclusive as to the creation of the tenancy. It is only evidence. A party can competently prove the circumstances under which payment was made to rebut the tenancy which would arise from such receipt of rent $e.g.$ by proving from the circumstances and conduct of the parties that new contractual tenancy should be created --- - - - - - I think it is correct to say it is a question of fact to be decided according to the circumstances of each case. The plaintiff explained, which explanation was never challenged, that she was financially strapped and needed funds to complete the building. Consequently a tenancy agreement was made but with revisional clause to take care of the flactuating econ situation ".

The trial Judge accordingly took the position that the moment the appellants refused to pay the balance of the enhanced rent, the respondent became entitled to repossession of the suit property. Since vacant possession was not given. she was entitled to damages (mesne profits) for the period she was kept out of possession and other consequential damages. Six grounds of appeal were filed and argued on behalf of the appellants by their Counsel, Mr. Sendege. Some of them were very general and vague. a fact conceded by Mr. Sendege. $\mathbb{D}\mathbf{e}$ that as it may, I think that the main points of the appeal as far as can be ascertained from the memorandum and submissions of $Mr.$ Sendege at the hearing of the appeal are $1$ that the respondent had no cause of action against appellants nos. 2 to 7 as they were not shown to be partners in the first appellant firm,

$\cdots \cdots /6$

6 $\Rightarrow$

(2) that respondent was not entitled to arbitrarily increase the rent for the second year when she had already commuted it and received it in advance, $\beta$ ) that the Court should not have admitted in evidence a mere copy of the tenancy agreement and which was in anycase did not bear stamp duty, $(4)$ that the other special damages - payments to Auctioneers were wrongly awarded as they had not been proved, (5) that no aggravated damages should have been awarded and (6) that the appellants' submission of no case to answer should have been upheld.

I will deal with the issue of misjoinder first. $\rm{As}$ pointed out earlier on in this judgment, the last six defendants/appellants were added to the suit by the amended plaint, in which it was claimed that they were partners in the first defendant/appellant firm. That allegation was categorically denied in the appellants' written statement of defence (paragraphs 2 & 3). The two paragraphs were drawn in these terms:-

- "2. The amended plaint is bad in law and D2 to D7 have been improperly joined as parties to the proceedings. - 3. There is a misjoinder of the parties and the plaintiffs action against the defendants is misconceived."

At the commencement of the trial of the case Counsel for the appellants made two objections. One was that the plaint had been amended without leave of Court; the other was that the new defendants had not been served with the amended plaint and other Court process. In reply Counsel for the respondent made this statement from the Bar:-

"We searched in Company Registry whereby it was established that all persons named here formed the partnership - the records in the Registry show they are still negroty show only are bolli partners. See Fraser exparts of Central Bank of London 1892 QB 633 at 637; Esher, MB secondly, O1 & 8(1) one may defend or sue on behalf of others. But others may be notified (sic)."

$\div$

The trial Judge did not sustain the objections. She observed that it was the exclusive right of the respondent to sue a party whom she wished to sue and that paragraph Z two of the amended plaint "clearly names the defendant(s) to the Court's satisfaction." She added that if later on it transpired that anybody had been improperly joined an appropriate order would be made. She also found as a fact that the amendment had been done within the permited time so that there was no need to seek the leave of Court in the The Court was silent on the question of service to matter. the new defendants.

It was after that ruling that the two issues were framed and the trial started. In view of the Court's finding on the question of misjoinder, I do not see why it was necessary to frame and pursue the first issue.

Counsel for the appellants submitted on appeal first, that the Court erred to act on a mere statement of Counsel for the respondent that appellants Nos. 2 to 7 were partners in the first appellant; second, that each defendant was entitled to be served with Court process and third, that the respondent was obligated to apply to the High Court for an order to amend the plaint by the addition of new defendants.

$...$ /8

8 $\Rightarrow$

In my judgment there is substance in these submissions. No weight should have been attached to the statement of Counsel for the respondent regarding the status of appellants Nos. 2 to 7. The point was being contested as can be seen from the appellants' written statement of defence. Therefore. it befell the respondent to properly establish her claim that these six defendants were in fact partners in the first The trial Judge was alive to this fact hence the appellant. observation in her judgment that:-

"here too a certified copy of the return would have proved appropriate."

The trial Judge's contention that the above observation did not mean that she doubted Counsel's statement from the Bar was, with respect, unnecessary and indeed inappropriate since in law the statement was inadmissible. Counsel was not entitled to give evidence from the Bar.

It is clear from the record and the judgment that the amendment to the plaint was effected under Order 6 Rule 19 of the Civil Procedure Rules. The trial Judge stated, in her ruling on the preliminary objection on the point, that the amended plaint was properly before the Court as the amendment was done in time so that:-

"there was no need for the plaintiff to seek Court's leave to join, to rename or redesignate the defendants."

With respect in so holding the trial Judge appears to have contradicted her statement quoted earlier on in this

$\ldots \ldots / 9$

judgment, that Order 1 rr 10(2) and 13 of the Civil Procedure Rules should have been invoked. There can be no doubt that Order 6 Rule 19 was not applicable here. The matter was en I mile clearly governed by $\tilde{O}_{1}$ 10(2) Role which empowers the High Court to strike out or add plaintiffs or defendants. The Court may act on its own motion or may be moved on an application by either party. In either case $0$ l Rule 10 (4) must be complied with. It states:-

$\overline{9}$

$\Rightarrow$

"Order 1 r 10 (4) where a defendant is added or substituted, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be nece- ssary, and amended copies of the summons and of the plaint shall be served on the new defendant, and, if the Court thinks fit, on the original defendants."

It follows that the objection was well founded. The amendment of the plaint did not comply with the provisions of the law. The amended plaint should have been rejected on that account. The appellants were entitled under $0$ 1 rule 10 $(4)$ to be served with copies of the amended plaint and the summons for what they were worth. The trial Judge put much emphasis on the clause of the tenancy agreement allowing review of rent. Counsel for appellants submitted on appeal, as he did at the trial, that the tenancy agreement was not properly before the Court as only a photostat copy of some was tendered in evidence. In the High Court he objected to the production of the document on that ground and also on the ground that the document did not bear the compulsary stamp duty where-upon Counsel for the respondent stated, quite casually:-

$\ldots$ /10 "I think that is not an issue. We agreed Defendant was a tenant unless we have now changed.

Then there follows this note:-

Nr. Sendege: A lease agreement attracts stamp duty under Statutory Instrument 77 of 1967.

Miss Kadaga: I'll deal with the issue in my submissions."

Then the respondent continued with her testimony.

Surprisingly Court made no ruling on the matter when it should have done so. The matter of stamp duty was alluded to in the judgment (page 36) where the trial Judge said:-

> "She (respondent) purported to tender in evidence the tenancy agreement but > Mr. Sendege objected to its production > on the ground that it bore no stamp duty. He contended there was therefore no basis for the claim. While it is true that failure to stamp any lease or other document required to be stamped renders it inadmissible in evidence until it is properly stamped, this does not invali- date it. I should, however, point out that even the copy (of the tenancy agree- ment) annexed to the plaint was never certified. I think hs. Kadaga slipped on this important ration." on this important matter."

Mr. Sendege has submitted, quite rightly I think, that in the circumstances the only logical thing to do was to reject the so called tenancy agreement which was not/certified copy /a and on which the mandatory stamp duty had not been paid. No reason had been shown for the non-production of the original.

$...$ /11

## 11 $\div$ $\Rightarrow$

Since according to the trial dudge the action depended on the tenancy agreement then it should have collapsed at that stage.

Assuming that the agreement was properly before the Court, was the respondent free to claim the enhanced rent for the second year on the basis, clause 1 of that agreement? I think not. The clause allowed the parties to review the "every after one year." In this case the first year rent would end on $11-8-90$ . That is when the rent could be reviewed. But what happened was that the respondent took the agreed rent for two years in advance on 11-5-89, when the tenancy agreement was executed. In her evidence on the point the respondent said this:-

> "This receipt is the one I gave to Defendant. It is dated 11th August Defendant. It is dated filth August 1989. The amount is Shs. 2,880,000/=. I wrote 'house rent for two (2) years effective from 1st September 1989.' I wrote 'House rent for two years' I have a photocopy of this particular r commenced from 11th August 1989. The period of two years will end on August loth 1991."

The point taken by Counsel for the appellant is that since it was the respondent who asked and got the rent for the second year in advance it follows that she did not wish to increase it. This must be correct. It seems clear to me that at that stage it was understood by the parties that that would be the agreed rent for the second year. The respondent was not entitled in my view to unilaterally increase the already agreed and settled rent.

$\frac{1}{2}$

Her claim for arrears of rent vzas thus untenable\* The claim for Shs. 3,960,000/= should therefore have been rejected by the trial Judge\*

From the foregoing it is clear that even if the contract vzas valid, the appellants did not breach it since they did not fail to pay any of the agreed rent\* Their possession vzas in accordance Hith the terms of the tenancy agreement. They were not trespassers\* It is settled law that once at the request of his land lord a tenant pays rent or fixed. See: paragraph 3920 and Halsbury's laws of England Vol. 23 page 544. The rent has to be paid at the instance of the land Since for breach of contract cannob stand\* lord, which is not due, then that means that the rent is commuted English and Empire Digest Vol 31 page 256 otherwise the legal position would be different. there was no breach of contract the award of Shs. 150,000/=

The appellants were entitled to a quiet and uninterrupted tenancy for the two years for which they had paid the necessary rent. They did well to resist the attempts by the respondent to evict them. The finding by the trial Judge account\* This award would not stand in view of my finding on the point. that their conduct in resisting re-entry vzas ''unseemly" cannot be supported both in fact and in law. The trial Judge even awarded them Shs. 150,600/= aggravated damages on that

**/13**

$\overline{13}$ $\Rightarrow$

As for the remaining special damages I will say this. In the amended plaint it was alleged that Messrs Sunrise Associated Auctioneers and Solestar Jeneral Auctioneers had been paid Shs. 150,000/= and Shs. 200,000/= respectively in the futile attempt to evict the appellants from the suit premises. At the trial the respondent, the witness sole actress in the case, said nothing about that claim. In allowing the claim the trial Judge said this:-

> "It is a little difficult to see why no documentary proof was offered. This ought to have been possible with very minimum effort. The blame lies with Counsel. Nonetheless I have awarded special damages somewhere else without documentary proof. On a consideration of the entire case as I have stated above the plaintiff must have attempted re-entry as claimed. I therefore award a sum of Shs. 350,000/= in respect thereof."

Special damages must be pleaded and proved strictly. See: Kampala City Council v Nakaye 1972 EA 446 at 449. ${\rm In}$ the instant case the special damages were not proved. Therefore none should have been awarded. With respect the trial Judge was not entitled to go by her previous error of awarding special damages in absence of proof. The Court should never have bothered with this particular claim which had not been pursued by the respondent. On this claim and on the claim for exemplary damages the trial Court seems to have acted on the pleadings and not on evidence. That was not proper.

$...$ /14

$14$ $\Rightarrow$ $\div$

Finally, I come to the issue of the no case submission. Mr. Sendege has attacked the statement of the trial Judge in her judgement on the principle to be applied to a failed submission of no case to answer. This is what she said:-

> "Once Mr. Sendege has submitted a (no) case to answer which I over-ruled and ease to answer which i over-ruled and on intimating he was not calling any evidence i.e. he was standing on the submission, I should have entered jud- gment for the plaintiff straight away - Cdgers (supra) pp.304 and 318. in delivering judgment."

Mr. Sendege's complaint was that he never intimated to the trial Judge that the defendant would not call evidence. According to the record of proceedings, the respondent gave evidence on her behalf and then closed her case. Mr. Sendege submitted that no case had been made out to justify the defendants to answer the claim. He gave reasons in support of the submission. In reply Counsel for the respondent submitted/a prima facie case had been made out.

The trial Judge delivered her short ruling on the matter two months later on 10-5-91. As already pointed out, she overruled the submission. She thought that the submission was "frivolous and a sheer waste of time." She ordered the appellants to state their defence forthwith but then the matter was adjourned by consent, to 12-6-91.

$...15$

The Court re-assembled on that date. Mr\* Sendege field workers. There had also been a mix up of the dates He asked for two weeks adjournment\* on the cause list\* then applied for an adjournment as his clients and witnesses were not present. The hearing date had been fixed exparte by the respondent's Counsel and Mr. Sendege had been served with the hearing notice at short notice with the result that he had not been able to contact his clients who were

The application was successfully opposed by Counsel for the respondent\* The ourt was of the view that Mr. Sendege was not serious about the case and ordered that the case proceed, whereupon the two Counsel made their final It is not correct that Mr. Sendege did not wish to call evidence\* addresses after 'which judgment was reserved on notice &lt; Clearly it was the trial Judge who foreclosed time.

as that applicable in a criminal case. pit the defendant on his election to produce evidence in rebuttal or not to do so. There is no equivalent provision in the Civil Procedure Rules to Section 71(1) of the Trial On Indictments Decree. the close of the plaintifis case a suomiosion of no case go answer is imade by the defendant, then the Court should The lav; relating to submissions of no case to answer in Civil Oases seems to me to be well settled\* xt is thcit where at It appears that the procedure adopted here was same. But, with respect, U Civil Cases the procedure is different from Criminal Cases.

... /16

The submission should be refused unless the defendant says that he does not intend to call evidence\* See: Vye v Vye (1969) 2 AU. B. R. 29; Yesevi v Golooba 1975 B. A.125 and Perry y Alluminium Corp (1940) V.7. N.44«

appellants when she had not asked their Counsel to make an election whether to give evidence or not. That was improper as the ruling was made when the Court did not have all the evidence before it. But all was not lost since the trial Court did direct Counsel for the appellants to call evidence. This much was conceded by Mr. Sendege at the hearing of this appeal\* Lhat happened in this case is that the trial Judge ruled on the submission of no case/without hearing the

For the reasons I have stated I am of the view that the High Court should have dismissed the respondents' claim against the appellants. Accordingly, I would allow J. ■boGxrWT' the appeal, and set aside the judgment and orders of Bahigeine I woikld award costs to the appellants^bo^hHicrcr-un'd'^

/17

17 -J-

*\** \*

Before I leave the case 1 wish to comment on the way it was handled. It has been said that during the entire trial of the case the trial Judge appeared to un-Sadly the record of proceedings Obviously this is a situation that ought to be avoided always\* duly lean on the side of the respondent and her Counsel\* ca-tes that impression\*

DATED at I-Iengo this .. Day of UevSmUer, 1992 •

4 S, T. MANY1NDO

DEPUTY CHIEF JUSTICE

$Nox19$

IN THE SURRING COUPT OF UGANDA

AT MENGO

(COPAM: MANYINDO, D. C. J., ODEP, J. S. C. PLATT, J. S. C.

CIVIL AMENI NO. 31 OF 1992

## BETWEEN

KAHANURA MELVIN CONSULTING

E GINEERS & 7 ORS

APPULLANTS

$A^*D$

CON I KARAMD. RESPONDENTS $\cdots\cdots$

(Appeal from the Judgement and Decree of

:::::::::

the High Court of Uganda (Mpagi-Bahigeine $\overline{S_i}$ ) dated $27.8.1992$ )

$\texttt{IN}$

## High Court Civil Suit No. 884 of 1990

JUDGENENT OF ODER, J. S. C.

I have read in draft the judgement of Manyindo, D. J. I agree with him that the appeal should be allowed and that the appellant should take costs of the appeal and in the Court. below.

DATED at Mengo this $\ldots$ dey of $\mathbb{R}$ . 1992.

$\infty$

A. H. O. ODER JUCIICS OF THE SUIRENE COURT