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Last Updated: 12 July 2007
Ephraim Kabaija V Ronald De Smet-HCT-00-CC-CS -0300-2004 [2007] UGCommC 36 (30 April 2007)
THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT
KAMPALA
(COMMERCIAL COURT DIVISION)
HCT-00-CC-CS
-0300-2004
Ephraim Kabaija Plaintiff
Versus
Ronald De Smet Defendant
30 April 2007
BEFORE: THE HON. JUSTICE GEOFFREY
KIRYABWIRE.
.
J U D G M E N T:
The
plaintiff brought this suit against the defendant for the recovery of
US$ 3,500 as rent arrears and Shs.372,696/= being utility
costs for
electricity bills.
The case for the plaintiff is that the
defendant entered into occupancy of the plaintiff’s premises
situated at Plot 14 Erica Magala
Road Entebbe (hereinafter called
"the house") without the consent of the plaintiff or his
letting agents M/s Alika Company
Ltd. It is alleged that the
defendant connived with an ex-employee of M/s Alika Company one Tom
Ayeny to enter into the house on
paying him a monthly rent of US$450
instead of US$700 per month. Despite a notice of eviction and request
to the defendant to regularize
his tenancy, the defendant left the
house without paying rent or the cost of utilities.
The
defendant in his defence denies that he illegally occupied the said
house. He pleads that he signed a tenancy agreement with the
plaintiff’s letting agents, paid its operations manager Mr. Ayeny
US$1000 as advance rent and a further US$100 for which he obtained
acknowledgements. It is also the case for the defendant that he
effected repairs on the said house which he allegedly agreed with
the
letting agent’s operations manager would be offset against any
outstanding rent. The defendant further pleads that if there
was a
problem with the tenancy then by the plaintiff allowing him to stay
in the house for more than 3 months amounted to a rectification
by
conduct.
At the scheduling conference the parties agreed to
the following facts that;
|
1- |
M/s Alika Co. Ltd was the property/letting agent in charge of the suit premises. |
|
2- |
There was a tenancy agreement executed and signed by the defendant and one Tom Ayeny dated 15th December, 2003. |
|
3- |
Tom Ayeny was an employee of Alika Co. Ltd at the material time. |
|
4- |
The defendant paid US$1,100 to Tom Ayeny (The plaintiff later without prejudice conceded this claim with a view to legally pursuing Tom Ayeny for the said amount). |
|
5- |
The defendant occupied the suit premises from 15th December 2003 up to June 2004. |
|
6- |
There was a request dated 12th March, 2004 made by the defendant to Alika Company, to extend the tenancy for three (3) months. |
|
7- |
The defendant is willing to pay US$1,600 plus utility bills as per the executed tenancy. |
A protracted attempt to settle this case out
of court failed and the matter came to trial. Judgment on admission
was entered on the
admitted sum of US$1,600- for outstanding rent and
Ug.Shs.372,969/= as utility costs.
The parties then agreed to
the following issues for trial.
|
1- |
Whether there was a tenancy agreement between Alika Compaly Ltd on behalf of the plaintiff and the defendant. |
|
2- |
Whether payments were made to Alika Co. Ltd by the plaintiff. |
|
3- |
Remedies available to the parties. |
Mr. Daniel Rutiba appeared for the plaintiff
while Mr. Joseph Kasozi appeared for the defendant. The defendant
called no witnesses
at the trial.
Issues No. 1: Whether there was a tenancy agreement between Alika Co. Ltd on behalf the plaintiff and the defendant ?
It was admitted that the defendant and one Tom
Ayeny an employee of the letting agent signed an agreement dated 15th
December 2003 Exh. P2. The said letting agent had the power to let
the said house by virtue of a power of attorney made by the plaintiff
dated 1st June 2000 Exh. P1. Mr. Godfrey Kiggwe PW1 an
Assistant Property Manager with Alika Co. Ltd testified that he met
with the defendant
some time 2003 when the defendant was looking for
a house to rent. Mr. Kiggwe told the defendant that they had houses
with rents
ranging from US$500 – 1000. They however failed to agree
on any rent as the defendant wanted a cheaper house. Mr. Kiggwe
however
testified that the defendant took possession of the said
house and that he got to learn of that on the 24th
December 2003. Mr. Kiggwe testified that the defendant entered into
the said house after colluding with one of their employees Tom
Ayeny
and signing a tenancy agreement dated 15th December 2003
outside the known structures of the company. Mr. Kiggwe further
testified that he asked Mr. Ayeny to tell the defendant
to leave the
house as the agreement was illegal but Mr. Ayeny did nothing. He
testified that the defendant all along knew that the
rent for that
house was US$700 and not US$450 as indicated in the said agreement.
Mr. Kiggwe testified that as a result of this they
through their
lawyers on the 20th January 2004 wrote an eviction letter
to the defendant and threatened him with arrest for criminal trespass
Exh. P5.
The tenancy agreement Exh. P2 provided in clause 2
for a rental period of 3 months from the 15th December,
2003 with an option to renew for a further period subject to
negotiations. Clause 2 of the same agreement provided for
rent of
US$450 for 3 months.
An attempt by the defendant’s lawyers
in Exh. P3 to extend the tenancy after the initial 3 months was
rejected by the lawyers of
the letting agents in Exb. P3.
Counsel
for the plaintiff submitted
"...it is clear that the
defendant legally occupied the rental premises for only 3 months and
continued illegally in the same for another
3 months..."
Counsel
for the defendant choose not to submit on this, I suppose because no
tangible evidence was brought to rebut the allegations.
However,
I find that the submissions of counsel for the plaintiff are some
what at variance with his pleadings and the evidence adduced.
The
evidence before court is that the plaintiff does not agree that his
premises was at any time legally occupied by the defendant
let alone
3 months. The plaintiff considers the agreement illegal and signed
without authority.
On this point in the absence of any thing
else, I am inclined to believe the evidence of DW1 Mr. Kiggwe. I
think that is why a letter
was written to the defendant (through his
lawyers) on the 20th January, 2004 Exh. P4 about one month
after the agreement was entered evicting the defendant (even though
the defendant none the
less continued to live in the house for
another 5 months).
To my mind the defendant must have known
that his situation in the house was not tenable but simply choose to
ignore or contest this.
His lawyers on the 12th March 2004
Exh. P3 wrote to the letting agents and stated;
Our client would have sought force longer period but has been discouraged by the conduct of Mrs. Okweyo Alice within this short stay to wit;
a) There was an attempt to unlawfully terminate the contract on 6th January 2004.
b) The criminal summons of trespass that were commenced against our client were made in bad faith and misconceived as the tenancy was subsisting on the date of complaint and therefore improper in law"
(emphasis mine)
Whatever the sequence of events it is clear
that from early January 2004 less than a month after he entered the
house attempts were
made by the letting agents to get him out.
I
therefore find on the evidence that the tenancy agreement signed on
the 15th December, 2003 Exh. P2 was not valid. However,
since the defendant did occupy the house irrespective of that
finding, I further find
that this created an "obligation
quasi ex contractu" a latin phrase
that means a quasi contract. This quasi contract according to
Orborn’s Concise Law Dictionary 6th Ed is
"...an obligation not created by, but similar to that created by contract, and is independent of the consent of the person bound."
Issue No. 2: Whether any payments were made to Alika Company Ltd by the plaintiff.
It is an admitted fact that US$1,100 was
received by Tom Ayeny from the defendant. The issue now is whether
that payment to Tom Ayeny
amounted to payment to Alika Company Ltd.
Clearly exhibits B1 and B2 show that Tom Ayeny acknowledged receipt
of US$1,100 on hand
written pieces of paper not by the official
receipts of the letting company.
The evidence therefore shows
that the letting company did not receive this money. However, at the
scheduling the plaintiffs generously
conceded the period 15th
December 2003 to 14th March 2004 as money to persued from
Tom Ayeny at a different forum.
In light of the above
concession I now find that no money was paid to the plaintiff as rent
for the subsequent period 15th March 2004 to 14th
June 2004.
Issue No. 3: Remedies
In
light of my findings above it is clear that the defendant owed the
plaintiff rent as a result of a quasi contract/agreement at
a rate of
US$700 per month and not US$450 per month under the invalid
agreement. With the greatest of respect to counsel for the
defendant
there is no evidence that the plaintiffs at any stage of this
transaction ratified the rent of US$450.
I therefore accept
the computation of the plaintiff as follows;
i) December 15,
2003 - March 14, 2004 US$450 x 3 = US$1,350
ii) March 15m 2004 –
June 14, 2004 US$700 x 3 = US$2,100
iii) Less many advance to Tom
Ayeny = US$1,100
US$2,350
The sum due is US$2,350 for rent
to be adjusted against the sum of US$1,600 where judgment was given
on admission if it has been paid.
The sum of Ug.Shs.372,969/= for
utilities where judgment on admission was given is also due if it has
not already been paid.
This is a suit brought under summary
procedure no claim was made for an indeed argued for general damages
save that it is be awarded
in the discretion of court.
Given
the manner in which this tenancy was entered into, I will in my
discretion award nominal damages of US$500.
I also award interest
at the rate of 8% on the rental sum and utility costs due from the
date of filing of the suit until payment
in full and further interest
of 8% on the nominal damages from the date of this judgment until
payment in full.
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