Sushila Ghusala v Manilal Lolita and Others (Civil Suit No. 89 of 1995) [1999] UGHC 57 (12 May 1999)

Full Case Text

### TT1E REPUBLIC OF UGANDA IbL'fHE HIGH COUR T OF UGANDA AT KAMPALA CIVIL SUI T NO. 89 OF 1995

**I**

Sushila Ghusala Plaintiff

## versus

Manila! Lolita & Others Defendants

BEFORE: 1I he Hon. Principal Judge Mr. . Justice J. II. Ntabgoba

### RULIN G

H. C. C. S. No. 89 of 1995 was brought by one Sushila Ghusalal through her daughter and Attorney, Vimla Thakkar against 6 defendants described in the *[* plaint as follows:-

- **"3.** Hie 1st four defendants are male adults believed to be of sound mind... - "4. The fifth defendant is a limited liability company incorporated in Uganda and carrying on business in Uganda."

**/**

The subject matter ofthe suit was a declaration that "the sublease comprised in sub-leasehold Register Volume I Folio 24 known as Plot No. 6/6A Market Street created out ofLeasehold Register Volume 36 Fol. 2 subsists and is binding on the parties thereto; a declaration that the plaintiff is entitled to quiet enjoyment ofthe suit premises; that the defendants be ordered to

b continue receiving the ground rent from the plaintiff as stipulated the sublease that die application for re-entry by the defendant over the sublease be rejected, and costs of this suit."

back ground of tire case is given in paragraph 6 of (lie plaint as follows:- (i) the plaintiff and 2 others by virtue of being the Executors of die

will of the the late Ghusalal Khinji are the registered proprietors over the suit premises comprised in Plots 6/6A Mar ket Street, otherwise known as LRV 26 Folio 2 and sub-leasehold Register Volume I Folio 24;

**s**

*(0*

"(ii) the terms of the sublease in issue are briefly that:-

- (a) the sub-lease is for 99 years from the first of December 1912,and - (b) the yearly rent is Shs. 53/75 payable half yearly in advance on the first day ofJanuary and 1st day ofJuly every year.

was "(in) the plaintiff was forced to leave the Country in 1972 by the dien / Uganda Government in the Asian Exodus and returned in the Country after repeals of the expulsion laws. The plaintiff then applied for and granted a Repossession Certificate over the suit premises. A photo copy of such Certificate is annexlure hereto and marked Annexture'C'.

(iv) the plaintiffthen sought out the defendants with a view ofthe meeting her obligations under the sublease, to wit, paying ground rent.

**i**

**2**

( ) t in the course of transactions between the Plaintiff and the first four defendants, the plaintiff got to know that a company known as AJ'CO Properties Limited, the fiflli defendant was the agents of the first 4 defendants for the purpose of collecting ground rent."

**5** I will stop the quotations at this juncture and relate the facts from both the pleadings and the evidence on oath in support of the plaintiffs case. On 21st January 1994 the fifth defendant wrote a letter to the plaintiff giving her an ultimatum that unless she paid ground rent within 21 days, the defendants would make a re-entry of the sublease by applying to Court. The plaintiff was being required to pay a sum of US\$500=. The plaintiffs lawyers tendered a sum of Shs. 107/50 claiming it to be the ground rent in arrears in respect of 2 years. The argument on the part of the plaintiff was that the sublease agreement provided for a ground rent of Shs. 53/75 per year payable in two instalments as aforementioned. The fifth defendant declined to receive the payment and threatened to apply for a re-entry. Its argument has always j been that since the sublease agreement required the plaintiff, as subleasee, to pay 25% ofthe ground rent reserved, tlie plaintiff should pay 25% ofthe ground rent assessed from time to time by the Kampala City Council, which 1 is the controlling Authority and tlie lessor in respect of the suit premises.

On her part the plaintiff argued that since the sublease provided for a ground rent of Shs 53/75 per year and provided for no revision of such rent, she was posed to pay only 25% of the rent reserved at Shs. 53/75, no matter whether the lessor (i.e. KCC) increased the ground rent.

**/**

**3** *237*

It did emerge from the testimony ofthe plaintiffs attorney, however, tl when she was threatened with a re-entry, the attorney paid the v indebtedness direct to tlie KCC despite tlie fact that in the past supposed to be paid to the KCC by the lessee (the defendants) and that the ° sublessee (the plaintiff) was supposed to reimburse to the defend of the rent the latter paid.

**4**

During the course oftlie hearing the parties readied an understanding their Counsel agreed that:-

**10** (a) the plaintiff would meet 25% whatever assessed ground rent and, I think, that she would be paying it to the defendant not direct to the Kampala City Council.

(b) the defendants would not make a re-entry.

**/ •**

(c) Counsel for both parties agreed to argue only as to which party • —— -------------------------------------------—-\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ \_\_\_\_\_\_\_\_\_ \_ v would pay the costs of the suit. That is what this Ruling is all about.

*IS* During the addresses by counsel, a number of issues emerged which includedi-

(1) whether or not the plaintiff was liable to pay 25% of the rent reserved by the sublease which was Shs. 53/75 or whether she was liable to pay 25% of the rent as would from time to time be fixed by the lessor, the Kampala City Council. *XO*

(2) whether by paying the rents direct to the Kampala City Council rather than to tlie defendants, she brought about the dispute which led

he threat by the defendants to apply for a re-entry on the suit property.

**5**

*/*

(3) whether it was the fault ofthe defendants not to tell her exactly how much she was liable to pay as rent.

*io* Starting with the third issue, I do not think that it is very important. If the defendant refused, failed or neglected to advise the plaintiff or her advocates about the quantum of the ground rent, it is clear that Vimla Thakkar, PW1 obtained the rent amount from Kampala City Council direct. That is why she was able to pay \$300 direct to tlie City Council, when she was supposed to remit her portion of ground rent to the headlessees, the defendants.

I now pass on to the second issue. Did the plaintiffs direct payment to the Kampala city Council rather than to the defendants bring about the latter's agitation for re-entry and therefore precipitated the filing of this suit? The answer would be in the affirmative, even though the evidence does not show that when the defendants threatened a re-entry they were necessarily aware *I* 5 that the plaintiff bad remitted the payment to the Kampala City Council. According to the plaintiffs evidence (per PW1), she was not aware tliat payment to the,City Council was the responsibility of the defendants, and that her responsibility was to re-imburse the headlessee (defendants). I do not think however, that her story can be accepted as the truth because, her *2-0* advocates must or should have advised her. She, of course, says that she was advised by Mr. Didas Nkurunziza that payment to the City Council was the responsibility of the defendants. She says that she was so advised after she

*t*

**2^** Imd already made the payments to the City Council that it was the responsibility of the defendants, and that her responsibility was to re-imburse the head lessee (defendants). However, she is an educated woman who should and must have sought to know how and by whom the previous rents in respect of her sub-leasehold had been paid and by whom. More plausible, perhaps, could have been a plea by her that she was thrown into panic by the defendants' pressure to effect a re-entry. The point, however, is that when she paid direct to the Kampala City Council, the headlessees must also have paid and they did not benefit by her payment. She confused the matter by making the payment to the headlessor. She cannot plead ignorance. Her ignorance if at all was not a privilege but a misfortune.

*IV*

**15**

**Xo**

**6**

-// **/**

> I now pass on to the first issue, wliich, I think, was the major cause for the rift between the headlessees and the under or sub-lessee (the plaintiff). Mr. Kanyerezi, learned Counsel argued strongly that what was involved in the sublease was what he termed the supremacy of contract. He argued that the sublease provided for ground rent but said nothing about revising such rent. Therefore, according to Counsel, the ground rent was meant to be static for the period from 1933 up to the year 2011 when the sublease would become renewable. He asserts that it is then and only then that the headlessee and the subieasse could alter the rent rate. He blames the defendants for having declined the rent provided in the sublease and having demanded new rents that they were not entitled to.

*10* &gt; on his pail, had the contrary argument. He referred to the es that vieated the successive headleases and came down to the •ng authority. He argued, if I got him correct, inter alia, that the onship between the interests ofstake holders in the land has always been belated by Statute. The relationship between the Governor, as the &gt; piopiietoi (lessor) of the land and the devisees to whom, by indenture, the goveinoi leased was derived from statute. The subsequent lessees by the subsequent indentures derived by statutory provisions. At Independence, the owneiship or proprietorship of the land devolved from the Governor to the Uganda Land Commission by Statute (i.e. the Public Lands Act). ( Subsequently, the Kampala City Council took over ownership by Statute when it became the controlling Authority. Counsel then argued that the Kampala City Council, as controlling Authority and lessor as well as the lessees who are the defendants and the sublessee who is the plaintiff, are, as stakeholders in the land, governed by statutory obligations under the statute. The obligation of the lessees to the controlling Authority includes payment of rents. Mr. Lule, I think, had a point when he pointed out that it would be unreasonable to expect the defendants to pay, say, a sum of Shs. 1,386,835/= as City rates, pins the newly assessed ground rent over the suit premises, and expect the plaintiff to sit back and enjoy the benefits of her sublease while paying a paltry sum ofshs. 53/75 per annum! Counsel also posed what I thought was a pertinent question, "What would happen to the plaintiffs interest in the property if the defendants defaulted in paying rents and the KCC re-entered?" If the plaintiff must have her interests in the suit property protected against forfeiture, she should surely contribute to its protection; and

**7**

**/**

the way to do that is to contribute to the payment of that portion of the rent that is commensurate with her holding in the property. It would be unreasonable, unconscionable and inequitable to expect the defendants to pay all the rents and for the plaintiff to reap the fruits thereof.

I think that it was reasonable for the defendant to demand contribution to the new statutory ground rent; it was unreasonable for the plaintiff to seek to withhold the contribution; and it was most appropriate for the defendants to enforce the plaintiff's contribution by threat of re-entry.

I find that this suit was brought by the intransigence of the plaintiff in refusing to pay her due contributions, unreasonably seeking to pay the 1933 rent which defeats any reason. To argue the way Counsel for the plaintiff has argued that the principle of supremacy of a contract must be maintained by adhering to static uneconomic rates is to disregard the economic importance of real property. Such disregard would defeat justice. I hold therefore that the costs of the suit will be paid by the plaintiff and I so Order.

$10.$

$15$

J. H. Ntabgoba

Principal Judge Mr. Masembe Kongevarfor the plaintiff Mr. Mine Musici standing in porturbule for 20 the dependants Mr. Edward Kangahofor Court Clerk. Mr. Edward Kangahofor Court Clerk. Rubing & delward in Chambers $2S$ $12 - 3 - 99$

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

#### CIVIL SUIT NO. 89 OF 1995

SUSHILA GHUSALA (through her Lawful Attorney :::::::::::::::::::::::::::::::::::: Vimla Thakkar)

#### **VERSUS**

$(1)$ LALITA MAINALAL RAJA

$\mathbf{r}$

- $(2)$ PRADIP NANDLAL KARIA - $(3)$ NANDLAL HARJIVAN KARIA - $(4)$ TRIBHOVANDAS MADHAVJL DATTANI - $(5)$ <table>

PABCO PROPERTIES LIMITED DEFENDANTS

#### DECREE

This suit coming up today the 12th May, 1999 for hearing and final disposal before the Principal Judge HON. JUSTICE JEREMIAH HERBERT NTABGOBA and MR. MASEMBE KANYEREZI and MR. B. K. PATEL Counsel for the plaintiff and MR. MIKE MUSISI standing in for Mr. Lule for the defendants.

IT IS HEREBY decreed and ordered that judgement be and is hereby entered, in as agreed between the parties, on the following terms:-

- That the plaintiff meets 25% of whatever ground rent is assessed by the local $(a)$ authority to be paid by the defendants. - The defendants will not make a re-entry on the suit land. $(b)$

AND regarding the issue of costs of the suit, the determination of which was left to the Court to decide, IT IS HEREBY ORDERED that the plaintiff shall pay the costs of the suit.

Given under my hand and the Seal of the Court this 12th day of May, 1999.

REGISTRAR. ሰጎ