[2016] UGCA 96

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

### CTVTL APPLICATION NUMBER L72 OF 2OL2

GANDA POST LTD T/A POSTA UGANDA APPELLANT

#### VERSUS

E MAGEZI he Administrix of The Estate of the

[An appeal from part of the decision of the High Court of Uganda at Jinja before Honourable Ladg Justice lrene Mulyagonja Kqkooza dated 28th Nouember 2O11 in Ciuil Suit /Vo. 9a of 20031

# ORAM: HON. MR. JUSTICE A. S. NSHIMYE, JA HON. MR. JUSTICE ELDAD MWANGUSYA, JA HON. MR. JUSTICE KENNETH KAKURU, JA

#### JUDGMENT OF THE COURT

s appeal arises from the decision of Honourable Lady Justice ne Mulyagonja Kakooza (J) in High Court Civil Suit No. 94 of 03.

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e brief background to this appeal was set out well by the trial dge and we have adopted it.

e respondent is the Administrix of the estate of the Late John M,Magezi who was the defendant at the High Court. He was an

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dvocate in private practice, practicing under the name and style of wanja Magezi & Waibale, Advocates and Solicitors. He had one er in the law firm one Alex Blasio Nume Waibale. The ppellant was at the material time the registered proprietor of remises known as Plot 2 Main Street/Plot 1 Iganga Road, Jinja unicipality which also housed the General Post Office in Jinja. ometime in the year 20OO, the respondent entered into a tenancy eement with the appellant to rent space at the said premises. e arrangement was formalized in January 2003 when the partres ed a tenancy agreement specifying the terms thereof. The spondent defaulted on rent for about 8 months from January to ugust 2003 upon which the appellant locked up the premises and emanded rent.

n 29rh September, 2003 the appellant instituted a suit claiming s. 12,494,O00/= as rent arrears. The respondent on 22"d October 003 filed a counterclaim in the suit claiming damages for wrongful etention of his property, trespass and the resultant loss to his usiness as an advocate.

pon admission and by consent Judgment was entered against the spondent for shs. 7,706,000|= pending the proof of payment of e sum of shs. 2,52O,OOOl=, which sum the respondent claimed to ave paid to the appellant by cheque. This issue was resolved on .d February, 2OO9, when the respondent produced proof that his ccount had been debited in favour of the appellant for the said of shs. 2,52O,OOO|:. Judgment was then entered in favour of e appellant against the respondent on 7th April, 2OO4 for

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- shs. $7,706,000/$ = as arrears of rent. The suit therefore proceeded on the appellant's claim for general damages for breach of contract and the respondent's counterclaim on trespass on the property and general damages. - The learned trial Judge allowed the appellant's claim for general $10$ damages for breach of contract but disallowed the claim for interest on the special damages. She allowed the counter claim and awarded the respondent shs. 65 million shillings for general damages for trespass on his property and shs. 32.5 million shillings aggravated damages. She also awarded him interest and costs. $1\overline{5}$

The appellant being dissatisfied with the decision of the High Court appealed to this Court on the following grounds;-

1. The learned trial Judge erred in Law and fact when she held that the Appellant detained and levied distress over the Respondent's property for non-payment of rent, amounting to trespass.

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- 2. The learned trial Judge erred in Law and fact when she failed to properly evaluate the evidence on record, made contradictions in her judgment and arrived at the following wrong conclusions; - a) That the appellant unlawfully re-entered the suit premises. - b) That the respondent is entitled to general damages $UGX$ . $65,000,000/=$ $$ and $of$ trespass UGX. 32,500,000/= as aggravated damages.

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## resentation

t when this appeal came up hearing Mr. Alimu omugasho rancis appeared for the appellant and Mr. Tuyiringire Onesmas ppeared for the respondent.

# hea ellant's case:-

was submitted for the appellant that the learned trial Judge erred hen she concluded that the purpose of locking up the spondent's Chambers was to force him to pay the rent due, not to rminate the tenancy by re-entry. That the learned trial Judge red when she held that since distress was levied by a Court bailiff thout a court order issued under Section 2 of the Distress for ent Bailiffs Act, that in that respect, the distress was illegal

at the learned trial Judge erred when she held that the spondent's property should have been removed from the emises and put onto a veranda to signify putting an end to the nancy, or handed over to the respondent. Counsel contended t the above finding was wrong in law and in fact. That it was t based on the evidence on record. That the trial Judge lailed to perly evaluate the evidence as a whole as such arrived at a ng conclusion.

ounsel submitted that distress was the seizure of another's perty to secure the performance of a duty, such as the payment overdue rent. That the appellant did not seize the respondent's operty. What the appellant did was to lawfully lock the suit mises for non-payment of rent. By virtue of clause a (a) (i) of the

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- nancy agreement between the appellant and the respondent, the ppellant was entitled to lock the suit premises where rent is rn ears for more than thirty days and to re-enter the premises. - ounsel further argued that the purpose of locking the suit remises was to re-enter the premises and not to secure the ayment of overdue rent. That this fact was manifest by the ppellant's subsequent action of filing a suit against the respondent de HCCS. No. O94 of 2OO3 to recover the rent arrears. That the Judge erroneously held that the appellant did not take legal tion to recover rent.

t the learned trial Judge ignored vital documentary evidence d elected to rely on oral evidence, thus contravening the best idence rule under sections 91 and 92 of the Evidence Act.

ounsel contended that not only did the learned Judge downplay e importance of Clause 4 of the tenancy agreement as stated e, she also ignored the letter of instructions to the Court bailiffs lockup the premises that was clearly to achieve the purpose of retry.

at the Judge further erred when she misguided herself and or nored vital facts such as the admission by the respondent that he d not paid rent for over 18 month and that Judgment had been tered against him on admission for shs.7,706,0O0/=.

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Counsel contended that the appellant did not levy distress for rent over the respondents property, but simply re-entered the suit premises by exercising its right of re entry as provided for under clause 4 (a) (i) of the tenancy agreement. He contended further that the Distress for Rent (Court Bailiff) Act did not apply to the circumstances of this case. That the Respondent was free to retrieve his property which he elected not to do. He referred to the cases of Joy Tumushabe and Anor Vs Mis Anglo African Ltd & Anor (Supreme Court C. A No. 7 Of 1999), Kanji Patel Vs Noor Essa & Anor (1965) E. A 484 and Karuiki Vs Wang'ombe (205) 1 EA **107.**

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Gounsel further argued that the learned trial Judge erred in law and in fact in awarding to the Respondent UGX. $65,000,000/$ as general damages for trespass and UGX. $32,000,000/=$ as aggravated damages. That the respondent had no cause of action against the appellant and as such the award of such damages was unjustified.

That the trial Judge had no basis in fact and in law upon which to award client/advocate such astronomical damages. That no fee- $2\frac{1}{2}$ notes or contracts were presented to prove actual loss of income or at all. The respondent made fictitious claims that were not in tandem with the facts of the case, the reality was that the tenant had failed to pay his monthly rent of UGX. $420,000/$ = for so many months. $3\phi$

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That the award was disproportionate to the levels of income of the as shown by their failure to pay rent for nearly two $(2)$ law firm years and their own admission in pleadings paragraph 9 of the respondent's counterclaim and evidence that the volume of this business had declined and as a result they were finding it difficult to pay rent.

That the consequences of not paying rent for nearly two $(2)$ years were self inflicted by the Respondent and could not claim to be aggrieved as envisaged by the compensatory nature of general and aggravated damages awarded by the learned trial Judge. The Respondent was not entitled to any award.

#### The respondent's case

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- For the respondent it was submitted the seizure of his moveable $2\dot{p}$ properties was unlawful and amounted to trespass of his property. That in this case it would not matter whether the seizure was through distress for Rent or by virtue of re-entry as per clause $4(a)$ $1$ of the tenancy agreement. - That the said clause did not in any way authorize the appellant to seize and detain the respondent's properties as it only refers to "other matters". - That clause 3L of the tenancy agreement gives a right to the $3\phi$ respondent to remove his moveable properties brought to the demised premises; at the end of or at the termination of the Tenancy.

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at the appellant's act of seizing and detaining the respondent's roperties was in breach of clause 3L of the Tenancy Agreement d their continued detention amounted to trespass. That there is o way the appellant could justify the seizure and detention of the spondent's properties in view of clause 3L of the tenancy.

ounsel argued further that even if it was found that the detention the property did not amount to distress for rent, the act of etaining it would have been in breach of the clause 3L of the nancy agreement and the continued detention of the said goods ould amount to trespass or converslon.

ounsel further argued that the appellant locked the suit premises order to secure payment of rent arrears and therefore it was an t in distress for rent. That this is borne out of the testimony of 2 Mercy Matende who testified that she closed the premises so at the respondent could pay the rent.

ounsel contended that whether the respondent's properties were ized is not an issue as the inventory clearly stated so.

at the appellant locked the suit premises and in addition tained the respondent's properties and that amounted to distress.

e respondent's counsel further contended that the appellant did t give the respondent an opportunity to retrieve his property at I

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- he submitted that respondent had proved all the grounds raised in e counterclaim. That the learned trial Judge properly evaluated e evidence before her and came to the correct conclusion that the eizure of the respondent's property was unlawful. - n general damages of shs. 65,000,000/=, counsel submitted that this case the respondent proved actual loss and the trial Judge ent through all that proof before arriving at the figure she warded. She even went further to address the issue of inflation hich at that time stood at 3O.5%o, and that this figure is justiliable d reasonable in the circumstances of this case. - ounsel argued that the fact that the respondent was in arrears of nt did not mean he could not have incurred substantial loss. That e trial Judge had correctly found that the amount he owed was uch less than the amount he lost.

^e supported the finding of the Judge in awarding aggravated es.

## esolutions of issues

is is a first appeal and as such we are required by Rule 3O(1) of e Rules of this Court to reappraise the evidence and make our inferences on issues of law. This duty was emphasised by the preme Court (Per Mulenga JSCI in the case of Fr. Narcensio mtso. & others us Eric Tibebaga (Supreme Court Civll I No. 77 of 2OO2. (Unreported) when he stated as follows:-

ffi "It is o uell-settled principle thor on a first appeal, the pc,rtles are entitled to obtain Jrom the appeal court its oun decisiort ott issues of fact q.s well qs ojlaw. Although ln q. cq.se of conflicting euidence the appeql court has to ma.ke due o,lloucrnce Jor the evidence and drqw its own inference and conclusions".

also RuIe 3O(1) of the Rules of this Court.

e shall proceed to re-evaluate the evidence and to make our own erences on all issues of law and fact.

ound one

e appellant faults the learned trial Judge for having held that the pellant's detention of the respondent's property was unlawful and ounted to trespass on the respondent's property.

d o e learned trial Judge found that the appellant had attempted to tress for rent and that the attempt was unlawful. At page 24 -25 her Judgment she states as follows;-

> "Giuett the definitions aboue and the euidence on record, I retain no doubt that the plaintiJfs purpose for locking up the defendant's chc;mbers was to force him to pag the rent due not to terminate the tenancg bg re-entry, uthich hqs not been proaed.. I sag so because hqd the plaintilf intend.ed to show that the tenancg hqd been terminated, then the defendant's properay should haae been remoaed.from the pretnises

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to signifg putting an end to it. The propertg should hanrc been remoaed onto the aerando,l or in thc other alternatiae, after the two dags of the lock-up specifted in the letter to the bailiJf, it ought to hqae been handed ouer to the deJendant to the so;tne end.

Hauing found that it wq.s an altempt at distain, was lt a ldwtul attempt? (Sic) There is no doubt thqt the distress uas leuied bg a CourA baililf in a letter of instntction which the plaintilf does not deng. That bailiff did not haae an order oJ court authorlsing hlm to distress rent. Counsel Jor the pldintilf submits thqt Mrs. Matende uro.s present when the premises were locked or when the bailifl arrirnd qt the premises. But according to the testitnong oJ Jimtng Kisird (DW2) Mrs. Matende aniued uhen the bailiff had already sertred the notice, Mr. Kisira had. q.lreadg talked to Mr. Magezi and the baililf uta.s proceeding to to'ke qn inuentory of the propertg in the chambers. In tng uiew thqt did not annount to the lqndlord. leugtng distress. Instead, it qmounted to a bailifl leuging distress and that bailiff had no court order issued under S. 2 of the Distress for Rent BailifJs Act. And in that respect, the dtstress u)cr,s ,to doubt illegal.

e learned Judgc went on to hold that some of the items which re locked up in the prcmises such as books, land titles, writeS, computers, printers and furniture in the respondent's

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w office were privileged and not subject to distress, under the mmon law. She states as follows at pages 25-26 of her Judgment.

"In ad.dition, although it is the general rule that persons entitled to rent in arrear tnag distrain on the premises out of which it issues, in uhosesoeuer's possession theg mag be qt the time of the distress, and mag take whqteuer chattels and personal effects found there, uhether theg belong to the tenant, or other persons, there qre exceptions to the rule. In fauour of trade there are seueral exceptions to the general rule the req.son of which is the public good (Bdu.tard Bullen, op cit.). In Lyons u. Elliot (1876) 1 QBD 21O; at 274, Blackburtt, J., explained. that the principle is that when a person occupies certain premises afld cdrries on a public trade there, goods which are brought to those premises for the purpose oJ thqt trade are privileged. The principle was restated bg Lord Esher, M. R. In Clarke u. Millutall. Cotnpang (1886) QBD 494, at 5O7 as follows:-

"Things sent or deliaered to a person exercising a trade to be carried, ulrought, or rnanufactured in the wag of his trade, as a horse in q smith's shop, tnaterials sent to d u)cauer, or cloth to be tnade up, are priuileged for the sake of the trqd.e or corrunerce, which could. not be carried on if stch things under these circuntstances could be distrqined for rent due from the person in whose custodg theg are.' ... The

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rule in question is stated to be 'for the sake of trade and commerce"

The principle makes a lot of sense and I have no doubt that the practice of law is a trade that falls under the exception. I therefore find that the certificates of title and other documents that had been brought to the chambers of the defendant/ counterclaimant for the purpose of having transactions sought by clients effected were not distrainable."

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With all due respect to the learned trial Judge we are unable to accept her reasoning and conclusion on two issues above.

She had already found that the respondent had failed to pay rent. Judgment had been entered in favaour of the appellant for rent $2\phi$ arrears on admission. The fact of whether or not the appellant could destrain for rent was no longer in issue. The only issue was whether or not the proper procedure for distress for rent was followed in this case. This is so because all the other factors were present namely;-

- 1) The respondent was a tenant and the appellant was his land lord. - 2) The respondent had in breach of tenancy agreement failed to pay rent. - 3) The respondent had been given notice to pay and had failed to comply.

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a) The respondcnt had admitted to his failure to pay and had sought rclief from the appellant to move to smaller space and to pay in installments, he only paid once.

e Judge herself set out the dcfinition of distress at page 24 of her dgment as follows;-

nBla,ck's Laut Dictioftclry (9th Edition) defines it as tlrc seizure of another's propertg to secure the perfonnance of a dutg, such as the pagment of oaerdue rent. An extended deJinition is gioen in the sanne dictionary as followsi

"Distress tnag be deftned as the taking, either with legal process, or extra-judiciallg subject to the perforrnance of sorrle necesscry condition precedent, nu a priuate indiuidual or nu an olJicer oJ the court, of a personal chqttcl, out of the possession oJf cr wrongdoer or defaulter and into the anstody of the laut to be itnpounded as a pledge in ord.er to bring pressure to bear upon the ouner of the chqttel to redress an injury or to perfortn a dutg, or to satistg a lawful dernand, subject, -ho the right of the ouner to houe the chattel returned to hitn upon the injury being redressed, or the dutg perfornted, or the demand satisJied or ott securitg being giaen to do so."

e only issue is whcther or not the procedure applied by the pellant in this casc complicd "vith lzrw. It is common ground that e bailiff who u,as instructccl to lockup the premises did not

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ossess a court ordcr, AS rcquired by S.2 of Distress for rent ailiffs Act).

e holding by the lcarned trizrl .ludge that a bailiff cannot legally stress for rent without a Court order issued under S.2 of the istress for Rent Baililfs Act, is not well founded.

e think there are exceptions to this general Rule. First and remost land lord is himscll cntitled to distress for rent in person thout a Court order under both the common law and the distress r Rent's Act. If the lnndlord is not a natural person and is a legal rson as the appellant, it can, but only act through its officers and agents.

is was the holding ol this Court in the case of Diannond rties as Yoka Rubber Industries Court oJ Appeal Ciuil al No 57 of 2OO8 (tJnreported). In that appeal this Court ersed the decision of the High Court which was alluded to by th the trial Judge and counscl at the High Court.

e are constraincd to rcproducc in extenso the above decision, cause of the simil:rrit-y of thr: issues with this appeal. Hon stice TVinomujuni JA (as hc then was) wrote the lead dgment, which was supported by the other two Justices namely, a JA (as he then was) and Mukasa Kikonyogo DCJ D

## In his Judgment, **Twinomujuni JA** states as follows;-

"The right to distress for rent is a common law remedy. "Distress" connotes "a summary remedy by which a person is entitled without legal process to take into his possession the personal chattels of another person, to behold as to compel the performance of a duty or the satisfaction of a debt or demand."

See Halbury's Law of England 4^th Edition 13 para 201. Vol.

Para 202 of the same Laws states:

"The right of the landlord to destrain for arrears of rent arises at common law and need not be expressly reserved. It enables the landlord secure the payment of rent by seizing goods and chattels found upon the premises in respect of which the rent or obligations are due."

**Further on** in the same paragraph, the learned author

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"When the remedy was exercised, the chattels remained only as a pledge in the hands of the party making the distress and could not be sold. This continues to be the law with regard to chattels taken by way of distresses where the mode of dealing with the distress has not been altered by Act of Parliament; over such chattels the distrainor has no other power than to retain them till satisfaction is made."

The parliament in Uganda has not, to my knowledge, enacted any law to modify the above common law *position. There is, however, the Distress for Rent (Bailiffs)* Act of 1933 (Cap 76) which provides in section 2 thereof:-

"No person, other than the landlord in person, his or her attorney or legal owner of reversion, shall act as bailiff to levy any distress for rent unless he or she shall be authorized to act as bailiff by a certificate in writing under the hand of a certifying officer and that certificate may be general or apply to a *particular distress or distresses.*"

After listening to arguments of counsel, the learned trial

Judge held:-

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"As noted above DWI, May Virji, is the one who purported to carry out the distress for rent together with other persons not named. She was not, on the evidence before this court, the landlord or the holder of the reversion. She was not an attorney of the defendant. She and others purported to exercise the personal rights of the defendant. That is not possible. $It$ is a physical impossibility. The defendant is an artificial person. DWI was not authorized to distress for rent on behalf of the defendant unless she and her companions were appointed attorneys of the defendant for that purpose or otherwise instructed to act for the defendant in accordance with the law.

In spite of the foregoing, the defendant claimed that it had acted the way it did as pursuing distress for rent. As noted above the defendant is a limited

liability company. DWI was its employee. Her designation or office was Property Manager, or so I shall assume, and the authority of such office, in the defendant on the evidence before this court is not known. If the Landlord has to act in person, it is presumed that the landlord has applied his/her mind to the matter and acts in accordance with that which he/she has decided. If the landlord is an artificial person, and cannot act in person, then its mind, in this case the Board of Directors, or such other officers as the board of directors may authorizes specifically or generally a person or persons that may so act in accordance with the authority granted by the company.

There is no evidence the defendant, through its organs that can make decisions of this kind, ever made a decision to distress for rent, and appointed DWI to act in its behalf in that regard, either generally or specifically in this case. Or that the company had appointed and invested DWI, May Virji, with the authority, real or ostensible, as she purported to exercise.

I find that the purported act of distress for rent was carried out, not in accordance with the law."

This holding raises a number of questions that need to be answered:-

(a) Can a corporate person act "in person"? (b) If it can, who is authorized to act for it so that $\frac{d}{dt}$ the act is regarded as that of the company itself? (c) Does DWI, May Virji, fall in that category? The phrase "in person" is explained in Black's Law Dictionary:

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"If you do something in person you go somewhere and do it yourself instead of doing it by letter, asking somebody else to do it etc"

The interpretation Act (Cap 3, s.2uu) defines "person" as including "any company or association or body of persons corporate or incorporate."

It is clear from these definitions that in law a person whether natural or artificial has certain rights of a human being. An artificial person has rights and obligations as those of any natural person and can indeed do anything "in person" or through agents or legal representatives like any other person.

The Distress for Rent (Bailiffs) Act did not change the common law right of a landlord to distress for rent.

The purpose of the Distress for Rent (Bailiffs) Act was stated in the head note to the Act as follows:-

"An Act relating to the appointment of bailiffs for the purposes of distressing for rent."

The Act is a very short Act with only five sections arranged as follows:-

(1) Interpretation

(2) Appointment of bailiffs under certificates of certifying officer.

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(3) Power of cancellation, etc

(4) Penalty for acting without certificate.

(5) Power to make rules.

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As I understand it, this Act was only enacted in order to regularize and control the procedure for appointment of bailiffs. It could not, and it does not purport to change the age long common law relating to distress for rent by landlords. It is not intended to make any distinction in our well known Statutory and company law principles between natural persons and legal person. It was never provisions intended to $contract$ the $of$ the Interpretation Act which defines "person" to include any company or association or body of persons corporate or unincorporated."

If a corporation happens to be a landlord, it enjoys the $\alpha$ same powers and obligations as those conferred by the common law on any landlord.

Associations like companies and partnerships, whether incorporated or unincorporated ordinarily act through their institutions, directors or other authorized officers. It's also acts through agents, attorneys and legal representative.

In the 6^th Edition of Growers Principles of Modern Company Law at page 232 the learned author explains:-

"The Courts have recognized that where managerial powers have been delegated by the Board to other officers, those officers also may be treated as organs (for the Company), rather than agents or servants of the company so that their acts can be regarded as

those of the company itself and not merely as acts of the officers for which it is liable vicariously."

In the instant case, DWI testified that she had been, at all material times, in appellants Property Manager with the responsibility to manage the properties of the appellant including the collection of rents. Before she distressed for rent, she consulted the company lawyers who assured her that the company had powers to distress for rent. Since such matters fell within the company had powers to distress for rent. Since such matters fell within powers generally assigned to her portfolio, she went ahead and distressed for rent. In the above holding of the trial Judge, he rightly observed that "the board of directors, or such other officers as the board of directors may authorize specifically or generally or person or persons that may so act in with accordance with the authority granted by the company" could distress for rent. In my judgment DWI was such a person with the general authority to do or perform such duties in her department. She did not need a company resolution or specific appointment in order to do what she did. I would hold that the appellant had powers to distress for rent, it could like any other legal personality exercise it "in person" and DWI was the right person through whom the company could exercise the power to distress. Her act was therefore lawful. Ground one, two and three of this appeal should succeed.

We agree entirely with this decision. We have no reason whatsoever to depart from it.

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this particular case evidence on record reveals that court bailiff as instructed to distress for rent and not just to lockup the remises as contended by counsel for the appellant

e agree with the learned Judge that in this particular case, the dlord now appellant was exercising his legal right to distress for nt

e issue is whether the landlord could distress for rent using a urt bailiff who did not possess a court order. The learned trial dge held the distress in this case was unlawful as the bailiff who as instructed by the appellant did not possess a court order.

ith all due respect to the learned trial Judge her conclusion is not unded on the law. As noted in the Diamond Trust Properties as oka Rubber case (Supra) this Court held that a company may stress for rent through;

> "the Board of Directors, and such other o-fficers as the board o directors ma authoize s cl call or enerall or a person or persons that mag so act in accordance uith the authority granted bg the compang."

on. Justice T\rinomujuni added as follows;-

"in mg Judgment DWl was such a person with the general authoitg to do or perform such duties in her department. She did not need a companA resolution or specific appointment..... "

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this particular case one Mercy Matende the Manager of Posta da, the appellant, was present in person. She physically cipated in the distress. She was present when the inventory of appellant's property was being made. She signed that inventory ether with DW2 a law clerk of the respondent's firm, and the al Council Vice Chairperson of the area. The court bailiff did not the inventory. The law chambers were locked up in the sence of Ms. Matende the appellant's Manager. ⁵ In

find that the appellant lawfully distressed for rent in person ugh its officer Ms. Matende and thus complied with Section 2 of Distress for rent (Court Bailiffs) Act.

n if we had found that the court bailiff had distressed for rent he absence of the appellant's general manager Ms. Matende, would still have found the distress to have been lawful. This ecause a court bailiff is also empowered to carry out other es apart from court work. It is now established practice that rt bailiffs also act as debt collectors, auctioneers, and property nts. Where the law does not prohibit them, therefore they may wful act as agents of others. 1n IS be

this particular case, the appellants being a limited company d legally distress for rent 'in person'through a court bailiff. As as the bailiff acts in accordance with the authority granted by company his/her actions would be lawful. In

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- rate personality is a legal fiction, therefore, whenever ^a pany acts through dully authorized officers or agents it is med to have acted 'in person'. Unless a specific law so requires company resolution is required before an officer or agent of the pany exercises its general authority. - ood example of legal person exercising general authority through cers and agents is the case of The Kabaka of Bugando. The oka is a sole corporate. He holds and owns land under his e and title. It cannot be said that for the Kabaka to distress for t he has to be present in person. The Kabaka and all other orate persons can act legally through agents and officers who y include court bailiffs. A -l a[T

e second leg of this ground revolves around the issue of whether movable property against which rent was distressed was vileged and as such not subject to seizure. We have already roduced the Judge's findings and holdings on his matter. The dge held that some, if not all the movable property, the subject of tress was privileged. The learned Judge at page 27 Judgment tes;-

"tf the books of a scholar and tfu ' are priuileged from distress so are the books, reports of an aduocate in his practice. TLte same goes for tgpe writers, computers, printers and furniture in his / her chambers that are in ttse"

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With respect we do not agree. Firstly, almost everything in an advocate's law firm is used for his trade, whether they are books, law reports, files, furniture or equipment such as computers. The Judge's analogy would mean that almost nothing can be distressed from a law firm. This analogy would extend to Medical Practice. Accounting firms, Architects and almost all other professional businesses other than artisans. This in itself would defeat the purpose of the law that permits a landlord to distress for rent.

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$\mathsf{S}$

Our own understanding of the law is that all items and all goods that may be attached and sold to recover rent by a court order are also subject to distress. This is so because the law permits distress by a court order and that law does not subject it to any restrictions. That law does not provide for privileges or exceptions. In any case the appellant was exercising a right under an Act of Parliament which is not subject to the common law relied upon by the trial Judge.

Even if that was not so, in this particular case we would still have found that the respondents did not by evidence prove which of the items constituted 'tools of trade'. An inventory was made. DW1 testified in court as follows, upon being shown the inventory in Court, during his examination in chief. $\phi$

"this is the inventory that was prepared. There were 10 items locked up. They included a refrigerator, counter, typewriter, two file shelves, 15 office chairs, 3 secretarial chairs. Some rooms were locked (3 of them) so they did not gain access. There were

law reports, files, not counted but theg recorded that theg were mang."

As re is fu th th already stated no attempt whatsoever was made by the pondent to prove that the items set out above were privileged. It of even ascertained whether or not they were all in use or even ctional. We find that even on the basis of evidence, the claim t tools of trade were distressed was not proved. We would refore have disallowed that claim on that account alone.

## und one therefore succeeds. G

und one having succeeded, we find that there was no basis u n which the respondent should have been awarded exorbitant ounts as general damages. Even if we had found that the di tress was illegal we would not have upheld the awards in respect the general and aggravated damages. We would have granted n inal damages only. G of

It is the respondent who was in breach of contract. He had failed to rent. He had remained in occupation of the premises for over 18 nths without paying rent. How could a law firm which was doing well and earning millions of money from powerful clients, fail to p ev b rent at shs. 42O,O0O/= per a month for such a long time? The dence on record is that the firm was doing very badly. That the siness had for long been declining consistently. That the pondents had even sought to move and occupy a smaller space. find no basis whatsoever for the award of exorbitant general and avated damages based on substantial loss of income. m SO re w

C ) {ttl-

The damage suffered if any was as a result of the respondent's own breach of contract. The appellant was entitled to keep the distressed property until payment in full. There was absolutely no justification for the awards granted for general and or aggravated damages. It is a settled principle of law that court cannot permit a party to gain from his /her own wrong.

The second ground also succeeds. This appeal is accordingly allowed.

$5$

Judgment in respect of the counter claim is hereby set aside and substituted with an order of dismissal with costs.

The respondent shall pay the costs of the appeal.

We so order.

..day of $\sqrt{2016}$ . **Dated** at **Kampala** this $\mathbb{R}$ 25 HON. A. S. NSHIMYE JUSTICE OF APPEAL HON. ELDAD MWANGUSYA 30 JUSTICE OF APPEAL HON. KENNETH KAKURU JUSTICE OF APPEAL 35 27 adelivered on