[2025] UGHCLD 116

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION) CIVIL APPEAL NO. 005 OF 2019 (ARISING FROM THE CHIEF MAGISTRATE'S COURT AT NABWERU; CIVIL SUIT NO. 143 of 2016) NZABONA PAUL……………………………………..………. APPELLANT VERSUS**

**NAGASHA MIRIAM………..……………………………… RESPONDENT**

## **BEFORE: HON. LADY JUSTICE FLAVIA NASSUNA MATOVU JUDGMENT**

#### **1. INTRODUCTION**

This appeal arose from the decision of court in Nabweru Civil Suit No. 143 of 2016 that was passed on 15th January 2019. The appellant being dissatisfied with the said decision lodged this appeal against the same. The grounds of appeal were laid in the memorandum of appeal that was lodged at court on 23rd January 2019 and endorsed by the Registrar on 24th January 2019. Briefly the grounds were that;

- a. The learned trial magistrate erred in law and fact when she held that the plaintiff was illegally evicted. - b. The learned trial magistrate erred in law and fact when she held that the defendant trespassed upon the plaintiff's property.

- c. The learned trial magistrate erred in law and in fact when she held that the defendant was in breach of the tenancy. - d. The learned trial magistrate erred in law and fact when she held that the plaintiff was entitled to general damages of Ugx. 3,600,000/- and punitive damages of Ugx. 2,000,000/ without properly evaluating the evidence on record and which damages were excessive. - e. The learned trial magistrate erred in law when she did not decide upon the counter-claim and did not give reasons for the same thereby occasioning a miscarriage of justice. - f. The learned trial magistrate erred in law and fact when she failed to evaluate the evidence before her and as a result reached a wrong decision. - g. The decision of the learned trial magistrate is tainted with fundamental misdirection and non-direction in law and fact and as a result led to a miscarriage of justice.

The appellant thus called upon this court to set aside the judgment and decree of the lower court with costs to him.

#### **2. BACKGROUND**

a) The case at the trial court was premised on a landlord- tenant relationship that went sour. In the year 2014, the respondent rented premises located at Namere Zone, Kawempe II parish from the appellant. The respondent allegedly defaulted in payment of rent as agreed whereupon she was evicted by the appellant. The respondent claimed that the alleged eviction was

unlawful and constituted trespass. She therefore filed Civil Suit No. 143 of 2016 seeking for general, special and punitive damages for the alleged unlawful eviction and trespass.

b) The appellant denied all the above allegations, called upon court to dismiss the case and also set up a counter claim by which he claimed that the respondent was in breach of the tenancy agreement and prayed for general damages for breach of contract. The case was decided in favour of the respondent whereupon court found that the respondent was illegally evicted and awarded her general and punitive damages plus interest and costs of the case. The appellant being dissatisfied with the said decision lodged this appeal based on the aforementioned grounds of appeal.

#### **3. LEGAL REPRESENTATION**

The appellant was represented by M/s Kigozi & Partners Advocates while the respondent was represented by M/s Mujurizi & Tumwesigye Co. Advocates.

#### **4. LAW APPLICABLE**

- The Constitution of the Republic of Uganda 1995 - The Judicature Act Cap 16 - The Rent Restriction Act Cap 231 - The Civil Procedure Act Cap 282 - The Civil Procedure Rules - Common law and Case law

#### **6. SUBMISSIONS OF COUNSEL FOR APPELLANT**

a) Counsel for the appellant filed written submissions which I carefully studied. Briefly he submitted that the eviction of the respondent was lawfully done. That section 29 (2) of the Landlord and Tenant Act allows a landlord to repossess and re-enter his property where the tenant defaults payment for 30 days or more in the presence of an area local council official and police. Further that section 29 (3) stipulates that the landlords right of re-entry does not negate his right to collect any rent arrears due to him. Therefore, the appellant's eviction of the respondent despite her eventual payment of the arrears did not amount to an illegal eviction.

b) He also submitted that although the award of damages is upon the discretion of court, the trial magistrate ought to have considered the fact that the respondent was called to be present during the eviction, but she failed to come and that that the fact that the respondent took her time recovering her items from the police contributed to their expiration and thus the loss was self-inflicted.

c) In regard to the counter-claim, counsel submitted that this was a cross action against a plaintiff and ought to be heard as a suit on its own. He cited several authorities in support of his case which I carefully studied.

#### **7. SUBMISSIONS OF COUNSEL FOR THE RESPONDENT**

a) Counsel for the respondent also filed written submissions which I carefully studied. Briefly he submitted that the learned trial

magistrate did not err in law or fact when she found that the eviction of the respondent was illegal. That section 38 of the Landlord and Tenant Act stipulates that a tenancy terminates when a landlord or tenant gives notice of termination of tenancy in accordance with the Act or the tenancy agreement. Counsel submitted that where no such notice is given, the tenancy continues to subsist, therefore re-entry by a landlord would amount to trespass.

Concerning damages, counsel submitted that it was clear that the trial magistrate considered the evidence of PW1 regarding her monthly earnings of approximately Ugx. 800,000/- to arrive at the damages that were awarded. He also cited several authorities which I carefully studied.

#### 8. **DECISION OF COURT**

a) It is the duty of a first appellate court to review and re-evaluate the evidence before the trial court and reach its own conclusions, taking into account of course that the appellate court did not have the opportunity to hear and see the witnesses testify. (**Pandya vs R [1957] EA 336).**

#### **b) Ground 1**

### **The learned trial magistrate erred in law and fact when she held that the plaintiff was illegally evicted.**

i) Counsel for the appellant submitted that the decision of the trial court was erroneous since the respondent was lawfully

evicted in accordance with the provisions of the Landlord Tenant Act Cap 238 whereupon counsel for the respondent submitted that the provisions of the said Act were not properly applied. With all due respect, the Landlord Tenant Act came into force on 17th June 2022. The provisions of the said Act are therefore inapplicable to the current suit which was filed in 2019 before the said Act came into play. Be that as it may perusal of the pleadings shows that in paragraph 5 of the plaint, the plaintiff/respondent claimed that the eviction was unlawful and laid out the illegalities as follows;

- *"The plaintiff was up to date with her rental obligations* - *The defendant did not issue formal notice to the plaintiff prior to the illegal eviction* - *The defendant did not have a court order authorizing him to evict the plaintiff* - *There was no police or law enforcement officers to witness the eviction* - *The plaintiff/tenant was not represented at the eviction* - *The defendant did not keep a record of the property that he forcefully and illegally removed from the premises."* It is therefore pertinent for this court to ascertain whether the plaintiff proved the abovementioned facts and whether indeed the said facts if proved were tantamount to unlawful eviction. Suffice to note that the law applicable in 2019 was the Rent Restriction Act Cap 231. In the case of *Komakech Sam & 8 others vs. Ayaa*

*Corina & others¹* the court observed and rightly so that the said Act was intended to provide security of occupancy to tenants who come into lawful occupation at the commencement of their period of tenancy, but remain in possession at the expiration of the contractual term, from ejectment by their land lords unless the landlord complies strictly with the procedure laid down by the Act. Under the said Act, a defaulting tenant could only be evicted by an order of court and a landlord was not at liberty to evict defaulting tenants and throw out their properties without an order of court. Indeed, in the above case the judge observed that although the eviction process established by the Rent Restriction Act would entail considerable expense and delay it must be followed. Definitely in the instant case, the evidence on record shows that the respondent was evicted without and order of court and to that extent the eviction was unlawful.

ii) Counsel for the appellant also submitted that the trial magistrate erred in law and in fact when she based her decision on a document that was never tendered in court as an exhibit but merely admitted for identification purposes. I do appreciate the submissions of counsel for the appellant to the effect that a document only becomes evidence after being admitted as an exhibit and to that extent the trial court erred in relying on that particular document. Nonetheless, the trial magistrate also considered other factors to come to the

*¹ Gulu Civil Appeal No. 52 of 2013* conclusion that the eviction was unlawful. On page 5 of her judgment the trial magistrate stated; "*there was a great contradiction in the months being demanded for arrears of rent. Whereas DW2 said it was 3 months, the notice indicated it was two months while DW2 and DW4 said that plaintiff was given two months to vacate without pay which left the court in doubt as to how much was being demanded from the plaintiff".* The trial magistrate further noted that; "*there was contradiction in the period given as notice to the plaintiff to vacate. That whereas the notice of the chairman gave her 5 days, DW1 told court that he gave her one month but in his witness statement he stated he gave two months' notice, while DW3 told court that she was given two months*". In light of the several contradictions by the defendant's witnesses concerning notice the court found and rightly so that the plaintiff was not given proper notice which also supported the finding that the eviction was unlawful.

iii) On page 6 of her judgment, the trial magistrate found interalia that that there was no evidence that the plaintiff rented two rooms. I have no reason to depart from this finding because indeed the defendant's allegation that the plaintiff rented two rooms was not supported by any evidence on record. This further supported the finding that the eviction of the plaintiff on the basis that she had not paid rent for the second room was also unlawful.

- iv) In addition, on page 6 the trial magistrate also found that the plaintiff was wrongly evicted because the evidence on record shows that she had paid the outstanding rent to family members. This finding was indeed supported by the fact that the defendant admitted this particular fact in paragraph 4 (iv) of his written statement of defense and paragraph 11( c) of the counterclaim wherein he stated that "*the plaintiff paid rent to the defendant's son and wife after being advised to look for alternative premises"* and he attached the receipt (PID1) as Annexture A to the written statement of defense and counter claim. The said document was merely identified on the basis that the defendant/appellant claimed that it was a forgery. In my view it was wrong for the defendant who had admitted particular facts in his pleadings, and attached the said receipt, to turn around and deny its authenticity. Nowhere in his pleadings did the defendant deny knowledge of the said receipt or even mention that the said receipt was a forgery. It is an established principle of law that parties are bound by their pleadings and should not be allowed to depart from them. **(see Amos Byamukama &Anor vs Jairess Kompaire ) 2** . - v) The said finding is further supported by the fact that even in his counter claim, the defendant did not demand for outstanding rent for that particular room but merely claimed for outstanding rent for the 2nd room, implying that he knew

*² Mbarara Civil Appeal No. 42 of 2021*

that the respondent /plaintiff had fully paid for the one room that she occupied. The trial magistrate therefore rightly found that the plaintiff/respondent that the plaintiff was wrongly evicted because the evidence on record showed that she had paid the outstanding rent to family members.

vi) I therefore find that the trial magistrate properly evaluated the evidence and arrived a correct decision that indeed the plaintiff was unlawfully evicted.

#### **b) Grounds 2 and 3**

## **The learned trial magistrate erred in law and fact when she held that the defendant trespassed upon the plaintiff's property.**

## **The learned trial magistrate erred in law and in fact when she held that the defendant was in breach of the tenancy.**

After carefully studying the entire record of proceedings plus the judgment of court I notice that the trial court only considered three issues i.e. *Whether there was a tenancy agreement /relationship between the parties; Whether the eviction of the plaintiff by the defendant was lawful and What are the remedies available to the parties?* The trial court consequently found that the eviction of the plaintiff by the defendant was unlawful and awarded remedies for the said unlawful eviction. The trial court neither framed issues concerning trespass or breach of tenancy nor made any specific finding to the effect that the defendant trespassed upon the plaintiff's property and was in breach of the tenancy. It would therefore not be

right for this appellate court to consider issues that were never raised and considered by the trial court. These two grounds accordingly hereby fail.

#### **c) Ground 4**

**The learned trial magistrate erred in law and fact when she held that the plaintiff was entitled to general damages of Ugx. 3,600,000/- and punitive damages of Ugx. 2,000,000/- without properly evaluating the evidence on record and which damages were excessive.**

The court having found and rightly so that the respondent/plaintiff was wrongfully evicted awarded general damages for the inconvenience caused and also awarded punitive damages. The court properly directed its mind to the principles governing the said damages. On page 7 of the judgment, the trial magistrate specifically stated that she awarded the general damages as the direct and probable consequence for the inconvenience that was occasioned to the respondent. Further that she awarded punitive damages having found that the defendant /appellant acted in a high handed manner and the purpose was to punish him for his wrongful acts. I have not found reason to interfere with the awards given. In my view the sums awarded were not excessive but reasonable.

### **d) Ground 5**

# **The learned trial magistrate erred in law when she did not decide upon the counter-claim and did not give reasons for the same thereby occasioning a miscarriage of justice.**

Whereas it is true that a counter claim is treated as an independent action within the main suit, the court has discretion to order separate trial for the counter claim and the main suit if it is deemed appropriate or to determine it concurrently with the main suit.

On page 6 of the judgment, the trial magistrate found that the defendant/counter claimant had failed to prove that the plaintiff/counter defendant was occupying the second room and it was on the basis of this finding that she dismissed the counter claim. Apparently the court deemed it necessary to determine the counter claim concurrently with the main suit. Since the basis of the counterclaim was failure by the respondent to pay rent for the 2nd room, when the trial magistrate found that the respondent was not occupying the second room she in effect disposed of the said counter claim, dismissed it and indeed gave reason for her decision. This ground also fails.

#### **e) Ground 6 and 7**

**The learned trial magistrate erred in law and fact when she failed to evaluate the evidence before her and as a result reached a wrong decision.**

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## **The decision of the learned trial magistrate is tainted with fundamental misdirection and non-direction in law and fact and as a result led to a miscarriage of justice.**

Having found as above I find that the trial magistrate properly evaluated the evidence before her, properly directed her mind to the law and evidence and consequently arrived at a correct decision. Her decision is not tainted with any fundamental misdirection or nondirection in law and fact and did not occasion miscarriage of justice.

The decision of the lower court is therefore hereby upheld and this appeal is accordingly dismissed with costs to the respondent.

### **DATED at Kampala this 30th day of June 2025**

**JUDGE,**