THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA AT MENGO
(CORAM: ODOKI, CJ., ODER, TSEKOOKO,
KAROKORA,
KANYEIHAMBA, JJ.S.C.)
CIVIL APPEAL NO.
3 OF 2003
BETWEEN
VIMILA THAKKAR :::::::::::::::::::::::::::::::::::::::::::
APPELLANT
AND
| 1. | LALITA MINILAL
RAJA ] |
| 2. | PRADIP NANDLAL
KARIA ] |
| 3. | NANDLAL
HARJIVAN KARIA ] :::
RESPONDENTS |
| 4. | TRIBHOVANDA
MADHAVJI DATTANI ] |
| 5. | PABCO
PROPERTIES LTD. ] |
[An appeal from the judgment and decision of the Court of Appeal,
(Mukasa-Kikonyogo, D.C.J., Kato, Kitumba, JJ.A.), dated 20.11.2001
in Civil
Appeal No. 52 Of 2000].
JUDGMENT OF COURT
A suit in which the appellant and respondents were parties involved the
payment of rent and the power of reentry in relation to a
sublease registered as
Volume 1 Folio 24 and known as Plot No. 6 and 6A, Market Street, Kampala. The
suit was eventually disposed
of by consent of parties in the High Court. The
facts and resolutions in the agreement are not relevant to this appeal. Be that
as
it may, in the High Court before Ntabgoba, P.J., the parties to the suit
reached an understanding which was tantamount to a settlement
of all the
disputes between them and the learned Principal Judge reflected this
understanding in his judgment. When it came to costs
of the High Court suit, the
court awarded the costs to the present respondents on the ground that it was the
appellant who was solely
responsible for the suit because of her intransigence
in refusing to pay her due contributions and unreasonably seeking to pay the
1933 fixed rent which defeated reason. The appellant appealed to the Court of
Appeal challenging the decision and reasoning of the
learned Principal Judge on
costs. The appellant lost her appeal principally because the learned Justices of
the Court of Appeal agreed
with the trial judge and confirmed his award of costs
to the respondent.
The appellant has now appealed to this court. The
grounds of appeal as framed in her Memorandum of Appeal are as follows:
1. The learned Judges of the Court of Appeal erred In law and fact in
arriving at the wrong conclusion that the appellant was not
justified in filing
the suit against the respondents in the High Court.
2. The learned Judges of the Court of Appeal erred in law and fact when they
ordered the appellant to bear the costs due to her conduct
prior to the filing
of the suit on 6th February, 1955.
3. The learned Judges of the Court of Appeal erred in law and fact when they
confirmed the decision of the learned Principal Judge that
the suit was brought
by intransigence of
the appellant in refusing to pay the due contribution and as such was to pay
the costs.
4. The learned Judges of the Court of Appeal erred in law and fact when they
confirmed the decision of the learned Principal Judge
that it was reasonable for
the respondents to demand a contribution of 25% of the new statutory ground rent
and it was unreasonable
for the appellant to insist on paying the sum set out in
the sublease agreement.
5. The learned Judges of the Court of Appeal erred in law and fact when they
failed to evaluate the evidence on record as a first
appellant (sic.) court and
arrived at a wrong decision when they upheld the learned Principal Judge's
decision.
6. The learned Judges of the Court of Appeal erred in law and fact in holding
that because the appellant compromised with the respondent,
therefore she was
not the successful party.
Considering that the parties reached a settlement which was recorded in the
trial court, we find that only grounds 2 and 3 of the
appeal are pertinently
relevant. The other grounds, namely, 1, 4, 5 and 6 should be subsumed in the
settlement arrangement accepted
and recorded by the learned Principal Judge in
his reasoned judgment and as confirmed by the learned Justices of
Appeal.
On ground 2, the appellant who represented herself submitted
that in awarding costs to the respondent, both courts below erred in
that their
findings and decisions were not founded on the facts and circumstances of the
case. Appellant contended that it was not
until she went to court that the fact
of the rent revision was raised. The appellant further contended that until she
acquired that
knowledge there was no way she could have known the value of the
25% payable for the sublease of which she was tenant. She contended
that until
she discovered the figures herself from Kampala City Council, the only rent
payable she knew of was what was reflected
in the original sublease agreement of
1933 which she duly and diligently offered to pay.
For the respondent, Mr. Godfrey Lule, S.C, submitted that the respondents had
been in constant touch with the appellant to remind
her of her obligations with
regard to the sublease. He submitted that when she eventually responded, she
insisted on paying the original
rent of Shs. 53/75 fixed as long ago as 1933
when the sublease was first granted to her predecessors. Counsel further
contended that
there is evidence that the appellant was fully aware that the
rent payable was 25% of the annual rent for the head lease assessed
by the
Kampala City Council at Shs.348,355/=.
Mr. Lule contended that since the appellant had finally accepted to pay the
25% of the true assessed figure, she ought not have filed
a suit and as she had
relied on a lower figure as the basis of her action, she was the loser and not
the winner of the suit.
On ground 3, the appellant contended that the Principal Judge was wrong to
hold and the Justices of Appeal were in error to confirm
that it had been
through the appellant's intransigence that court proceedings became
necessary.
In the appellant's view, she did all she could to pay her
rent. Firstly, when she first received a demand note, that note did not
specify
how much had been revised and assessed by the City Council. Consequently, there
was no way she could ascertain what amount
represented the 25% contribution from
her. She further contended that in the absence of such an ascertained amount,
she was justified
in tendering to the respondents the original fixed rent in the
sum of Shs. 53/75 per month plus all the outstanding arrears. The
appellant
contended that the evidence available suggests that the respondents were no
longer interested in keeping her as a subtenant.
They appeared to be preoccupied
with reentry and repossession. In support of this claim by the appellant she
pointed out that even
when she sent the sum of U.K. £300 which was adequate
to cover the new revised rent and advised the respondents to inform her
whether
that amount was adequate and if not, for her to send more money, the respondents
kept silent. She contended that even the
lawyers of the respondents themselves
did not know the amount payable.
For the respondent, on ground 3, Mr. Lule contended that the appellant was
solely responsible for the protracted correspondence between
the parties and for
the necessity to go to court. He submitted that by the time the appellant chose
to go to court she already knew
the revised rent and the amount due to the
respondents. He contended that therefore both the High Court and the Court of
Appeal
were correct in their findings and respective
reasoning.
Having heard the appellant and counsel for the respondents
and read the record of proceedings, we are not persuaded that either party
can
claim correctly that they won or their opponents lost the case. Neither side
appears to have done all they could have done to
finally settle their dispute.
Neither the appellant nor the respondents' behaviour and acts conform to the old
equitable maxim that he who comes to equity must come with clean hands.
The impression one gets from the pleadings and submissions in this case is
that
each party wanted to eat their proverbial cake and have it at the same time. The
appellant appeared to insist on paying the
original fixed rent of Shs. 53/75 per
month even though she was fully aware that it was no longer economically viable
and the 25%
payable was not of any figure other than what the Kampala City
Council had statutorily demanded, namely, Shs.348,355/=.
The
respondents failed to demand the actual amount of what 25% of the revised rent
represented. They did not volunteer any information
about the revised rent. It
was only the appellant or her lawyers who took initiative to find out. They
refused to accept her payment
as part payment and demand the balance. They did
not acknowledge or respond to her suggestions regarding the £300 which she
sent through her lawyers. Their total demand of some US $ 500 is not fully
explained. However, the respondents were very clear on
reentry. The letter
written by Pradip N. Karia of Pabco Properties Ltd. on 14 December, 1993, is
confusing and inexplicable just
as his other subsequent letter dated 21 January,
1994. The letter is worded thus,
"Dear Madam,
GROUND RENT DEMAND
PLOT 6A MARKET STREET, KAMPALA
We kindly bring to your notice that the above ground rent has not been paid
by your Attorney Vinila Thakkar who was requested to pay
the same as per
sub-lease requirement. You note that you have also failed to do the same for
this year.
We also bring to your attention that there are some immediate repairs which
are required on the buildings which should be effected
also.
Also note that if we do not receive any payments within 21 days date
hereof then we shall move the Registrar to make a re-entry.
Please treat this as final notice."
These letters
threatened to activate re-entry within a short period notwithstanding that they
were being sent to the appellant at
her address in Leicester, U.K. There is no
evidence that they were being sent by any quicker method of communication nor
were the
respondents minded to ensure that these letters were delivered and
received by the appellant. Interestingly, long before these letters
were written
and dispatched, the respondents had been clearly informed by the appellant
through her lawyers that she had agents in
Kampala who could receive her letters
and who were authorised to act on her behalf. The letter from Messrs Katende,
Ssempebwa &
Co. Advocates, dated 12th April, 1994, clearly
reveals this knowledge.
Under these circumstances, it is our view
that both the High Court and Court of Appeal erred in awarding costs to the
respondents.
We are satisfied that grounds 2 and 3 substantially succeed.
Consequently, this appeal succeeds. We order that each party pays its
costs in
this court and in the courts below.
Dated at Mengo, this 22nd day of June
2004.
B.J. ODOKI
CHIEF JUSTICE
A.H.O. ODER
JUSTICE OF THE SUPREME
COURT
J.W.N. TSEKOOKO
JUSTICE OF THE SUPREME COURT
A.N. KAROKORA
JUSTICE OF THE SUPREME COURT
G.W. KANYEIHAMBA
JUSTICE OF THE SUPREME COURT
