THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
- VERSUS -
2. RAJKET } ::::::::::::::::::::::::::::::::::::::::::::::::::::::::: DEFENDANT
J U D G M E N T:-
Issues for determination:
(2) Whether the second defendant was a tenant of the plaintiff.
(3) Whether the plaintiff is entitled to any remedies and from which defendant.
Because the rent at 6th street was very high, he decided to shift the properties to Plot 10 Clement Road where he was to pay rent at 350,000/= per month. Again he incurred expenses in shifting (exhibit P10 andP11). The motor vehicles were parked at a different place on plot 15 Shimon Road at a fee (exhibit P12).
Lastly PW1 testified that he was entitled to recover the money which he paid for water and electricity bills consumed by the defendants which were left unpaid exhibit P13 and P14). He concluded that the defendants have never gone back to reclaim their properties. The only property which reclaimed was he coffee processing plant which was reclaimed by court bailiffs through a court order (exhibit P15).
After that period, the second defendant’s managing director continued to occupy the suit property. PW1 testified that although it was second defendant who was paying rent, he was paying on behalf of the first defendant and in doing that the first defendant became a holding over tenant. According to Black’s Law Dictionary a holdover tenant is a tenant who retains possession after expiration of a lease, or after a tenancy at will has been terminated.
In the instant case after expiration of the first defendant’s tenancy, there is no evidence to show that the first defendant parted possession of the suit property. Instead there is uncontroverted evidence that the second defendant for whom all the first defendant had rented the suit premises continued to occupy the same and was paying rent as per the agreement. The fact that he was paying rent in his own name did not mean that he had taken over the tenancy. The first defendant should have informed the plaintiff that the second defendant in occupation in his own right. In the absence of that the plaintiff was justified in believing that the first defendant was still in occupation. And according to the inventory exhibit P the first defendant never shifted its property from the suit property. In the above circumstances the only fair inference to be drawn is that from the conduct of the first defendant it can be safely implied that it remained in occupation of the suit property after the expiry of the tenancy agreement.
Issue No. 2:-
Whether the second defendant was a tenant of the plaintiff.
From what I have stated above, it is very clear that there was no tenancy relationship between the plaintiff and second defendant. The second defendant was in occupation of the suit property on behalf of the first defendant. It was his official residence as its managing director. The first defendant has failed to adduce any evidence to the contrary. According to Section 102 of the Evidence Act he who alleges must prove it: See Paul Kawanga Ssemwogerere & Others Vs Attorny General, Constitutional Petition No. 3/99. It was upon the first defendant to prove that the second defendant was in occupation as a new tenant. In the absence of such evidence, I would believe the plaintiff’s witness that the first defendant remained in occupation after the expiration of the tenancy by retaining the second defendant in the suit property. The witness was emphatic that he never agreed on any other rental terms by reducing the same to 800$. He insisted that had that been the case the receipts dated 14/6/2000, 3/7/2000 and 14/9/2000 would have indicated that new rate at $800 per month which was not the case. I do agree with that contention. In the premises the second issue is answered in the negative.
Issue No. 3:-
Whether the plaintiff is entitled to any remedies and from which defendant. It is trite law that a lessee who holds over has to pay rent: See Christopher Sebuliba Vs Attorney General & Another, Supreme Court Civil Appeal No. 13/91 (unreported). In the instant case it was first defendant who was holding over tenant. There was therefore no need for new tenancy or re-negotiation of new terms. The first defendant was therefore liable to continue paying rent under the expired tenancy agreement. See Eastern Radio Service Vs Patel  EA 818, 836 and 839.
For reason the plaintiff is entitled to recover from the first defendant the rent arrears at US $14.400 as claimed which accumulated from 25/10/2000 to 13/10/2001 at a value of US $1.200 per month.
On special damages, I find that the plaintiff was right to relocate the defendant’s properties to give him vacant possession for another tenant. But considering the fact that the tenancy agreement provided for distress for rent, it was senseless for the plaintiff to relocate the properties to the second location on Clement Road. That was an extravagant decision which should not go without questioning. Another claim which should be challenged is paying to Oketch John which was made on humanitarian grounds. In the interest of justice and fairplay, I would reduce the plaintiff’s claim under that head to 6,000,000/= (six million shillings only).
I would also award the plaintiff damages for the inconvenience occasioned by the acts of the defendants. The acts of the defendants had put the plaintiff in great anxiety. In redress of the same I would award the plaintiff shs.2,000,000/= (two million shillings only).
Lastly the plaintiff claimed shs.500,000/= per month from 18/12/2002 till renting for the defendants’ principle is extinguished. In of what I have stated above such an award cannot be made.
In conclusion judgment is entered for the plaintiff for the recovery of rent arrears at US $14.400 or its equivalent in Uganda shillings. The plaintiff is entitled to six million and two million in special and general damages respectively.
The plaintiff is entitled to interest on rent arrears at 15% from the date of filing the suit until payment in full and also on special and general damages from the date of this judgment until payment in full.
As to costs it is the first defendant to pay because the second defendant was joined under Order 1 rule 7 of the Civil Procedure Rules since the plaintiff was in doubt as to which defendant he was entitled to sue. That rule is designed to prevent multiplicity of suits that would arise. In any case under section 27 of the Civil Procedure Rules Court has discretion to determine which party to pay costs.
In the instant case the second defendant was the first defendant’s agent. It would therefore not be wise to condemn him to pay costs: See D.T. Dobie & Co. Vs United India Fire & General Insurance Co. Ltd & Another  EA 16.
RUBBY AWERI OPIO
Bamwine for plaintiff
Absent – Kahima for defendants.
DEPUTY REGISTRAR CIVIL