Distress for Rent

 PERIODIC TENANCY

According to “ PRINCIPLES OF LAND LAW IN UGANDA By Mugambwa Pg 90 -111”-This is

a situation where a tenant at will begins to pay rent calculated on a regular periodic
basis i.e. yearly; monthly, weekly or other periodic tenancy will be implied according
to BWEYA STEEL WORKS LTD V NIC 1985 HCB 58.
A periodic tenancy renews from one term to another and depends on the agreement of
the parties but will be terminated by proper notice served by either party as
in PRUDENTIAL ASSUARANCE CO V LONDOND RESIDUARY (1992) 3 ALL ER 504.
Periodic tenancies are by nature terminable by either party giving an appropriate
notice, in absence of any express agreement between the parties a weekly tenancy is
terminable by 1 weeks notice, monthly tenancy terminable by 1 months notice shown in
the case of QUEENS CLUB GARDENS ESTATE LTD V BIGWELL (1942) 1 KB 117 and
quarterly tenancy by 3 months notice MUSUMBA V HAJI KASAKA (1971) 1 ULR 222 the
exception to this rule is a yearly tenancy terminable by 6 months notice.

-Therefore to vacate premises in situation of a periodic tenant one would require

notice.

 WHEN A PERIODIC TENANT DEFAULTS WHEN DOES HE BECOME A

TRESPASSER?
Under Section 10 (2) Of the Limitations Act states that tenancies from year to year
or other period without lease in writing shall be deemed to be determined at the
expiration of the 1st year or other period and accordingly the right of action of the
person entitled to the land subject to the tenancy shall be deemed to have accrued at
the date of that determination except that where any rent has subsequently been
received in respect of the tenancy the right of action will be deemed to have accrued on
the date of the last receipt of rent.

Therefore, once the tenant defaults they become trespassers on the day the tenancy
is determined i.e. at the point when the land lord s right of action accrues.

 DO YOU REQUIRE COURT ORDER WHEN DISTRAINING FOR RENT FROM A

PERIODIC TENANCY

According to “ PRINCIPLES OF LAND LAW IN UGANDA By Mugambwa pg 105 distress for

rent is a self help remedy by which land lord may enter the leased premises if rent is in
arrears (in the case of MUSUMBA V HAJI KASAKA (1971) 1 ULR 222- right only accrues
where rent is in arrears.’) and confiscate any goods found on the premises of the value
of outstanding rent highlighted in MEGARRY & WADE, THE LAW OF REAL PROPERTY pg
709-12.

However, this remedy depends on the existence of the landlord tenant relationship. In
other words, it is applicable where the landlord does not intend to terminate the
tenancy. (MUSUMBA VS. HAJI KASAKA &MBARARA AUCTIONEER MART (1971) IULR222)

In light of the above principle distress for rent would only be applied where the landlord
does not intend to terminate the tenancy therefore the defendant by carrying out
actions to distrain is precluded from claiming that the tenancy had ceased because
 in SOUZA FIGUERIDO VS PANAGOPOULOS (1959) EA756 that where the land lord tenant
relation is non-existence then distress will be unlawful.

At common law, there was no right to sell distressed property without a court order, he
or she could only retain the property as a coercive measure to enforce payment or
could only sell after authorization from court shown in the case of
UGANDA MOTORS LTD V WAVAH HOLDINGS LTD CA NO 19/1991 - it is submitted that
landlord has no power to sell without a judicial order.

Therefore in this case there existed a periodic tenancy by virtue of the fact that after
retaining the property rent was still levied from the plaintiff and the actions for distress
for rent precluded the Defendant from claiming that that tenancy had been determined
but still the land lord does not have the right to sell they can only do so after obtaining
court order.

Situations where certificate for distress will apply.

Distress to be carried out by the land lord in person, or his authorized agent, e.g.
advocate, attorney or bailiff duly licensed.

Section 2 of Distress for Rent (Bailiffs) Act provides that 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 which may be general or
special certificate.

Conclusion;-It is only when the landlord seeks to distress for rent through some one
else who is not either his attorney, or legal representative, that a certificate will be
necessary.
 WHAT IS THE LIMITATION PERIOD FOR DISTRAINING OF PROPERTY i.e. can you
distrain for 5years without sale.

Both the Distress for Rent (Bailiffs) Act and limitations Act are silent on this point but
the Limitations Act states under Section 17 that no action shall be brought , or distress
made to recover arrears of rent of damages in respect of these arrears after the
expiration of 6years from the date on which the arrears became due.

 WHAT IS TRESPASS OR WHO IS A TRESPASSER.

The definition of a trespasser is shown in the case of SHEIKH MOHAMMED LUBOWA V

KITARA ENTERPRISES LTD CA 4 OF 1957 CA held that trespass to land is constituted
where entry onto the land by the defendant was without consent of the owner.

Further more in “PRINCIPLES OF TORT LAW 4 th Edition by Vivienne Harpwood pg 220

states that trespass to land consists of directly entering upon land or remaining upon
land in the possession of the claimant in each case without lawful justification.

Therefore, the remedy available to the land lord in the situation of a trespasser is
highlighted in the case of TUMUSHABE V ANGLO AFRICA AND ANOR SCCA NO.1/1999-
which cites the case of HEMMINGS V STOKE ROGERS GOLF CLUB (1920) 1 KB 720 and
states that the remedy is re-entry and defense of property i.e. the person entitled to
possession of the property or land may request the trespasser to leave and if he refuses
 to do that person may remove him from the premises using no more force than is
reasonably necessary.

 CAN TRESPASSER’S PROPERTY BE DISTRAINED

This cannot happen since the remedies available include eviction and re-entry brought
out in the case of TUMUSHABE V ANGLO AFRICA AND ANOR SCCA NO.1/1999-which
cites the case of HEMMINGS V STOKE ROGERS GOLF CLUB (1920) 1 KB 720 at pg
103and states that the remedy is re-entry and defense of property i.e. the person
entitled to possession of the property or land may request the trespasser to leave and if
he refuses to do that person may remove him from the premises using no more force
than is reasonably necessary on pg 100 it also highlights that distress for rent is
only permissible if the relationship of tenant and landlord exists between the
parties .

In FK MOTORS LTD VS KABU AUCTIONEERS CACA NO.92/2005-at pg 5 the learned judge

held that the owner had a right to evict a trespasser who had refused to vacate the
property, the eviction did not have to comply with the provisions of the Distress for rent
(court Bailiffs) Act they were entitled to remove the properties so as to leave the
premises empty.

Therefore, both cases emphasize the following 1) stress landlord tenant relationship 2)
that there cant be distress where tenant has become a trespasser 3) that the landlord
must distress himself or through attorney or person issued certificate to distress by
court.

Further more in EASTERN RADIO SERVICE AND ANOTHER V R.J PATEL T/A TINY TOTS
AND ANOTHER it was held that once the landlord determines the lease or tenancy they
cannot levy a distress on the former tenant’s personal effects

 TRESPASS TO GOODS

In ATKINS COURT FORMS 2ND EDITION VOL 39 pg 137 it was stated to be the unlawful
disturbance of the possession of the goods by seizure, removal or by a direct act
causing damage to the goods.
-the tenets of trespass are unlawful disturbance of possession of goods by seizure,
removal
OR
-unlawful disturbance of possession of goods by a direct act causing damage to the
goods.

The disturbance could either be intentional or negligent, Intentional trespass to goods is

actionable without proof of damages case of WILLIAM LEITCH & CO V LEYDON [1931}
AC 90 at pg 106.
Negligent trespass to goods involves physical damage. In the pleadings one will need to
plead the particulars of the negligence and especially show the occasion of damage to
the goods due to the unlawful disturbance.

But as stated in the book of WINFIELD & JOLOWICZ ON TORT 15 th Edition pg 586-in
modern law trespass to goods is confined to intentional interference and the negligent
interference is remediable only by the tort of negligence. In the case of DEPARTED
ASIANS PROPERTY CUSTODIAN BOARD VS ISSA BUKENYA SCCA 26 OF 92 [1993 V KALR
PG 13] held that the claim for damages for trespass to goods was non existent in the
 case. In the case, the plaintiffs were appealing against the ruling of the trial judge who
awarded the defendants 14million being the value of unrecovered goods of the
defendant lost when the premises in which he had a shop were reallocated but he
wasn’t given a chance to collect his property. Overturning the ruling the justices of the
Supreme Court held that the amount awarded was for value of the defendants goods for
which claim was not prayed for. What the defendant had prayed for was claim for
damages for trespass to goods but which could not be awarded since there were no
actions by the appellant to suggest trespass to the defendant’s goods.
This was elaborated by explaining what trespass to gods should be to be
actionable. Trespass to goods consists in any unlawful possession of the goods by
seizure, removal or by a direct act causing damage to the goods.
In this case it was found that there could not be trespass by the appellant because the
board did not steal the defendants property of take the plaintiffs property by removing
them there was no direct act causing damage to the goods.
Therefore this case emphasizes that for trespass to stand there needs to unlawful
interference.

Facts-according to the above case the interference with the goods was by distress for
rent a right that was entitled to the landlord thus making the detention of goods at this
point lawful and not unlawful interference.

 CONVERSION AS AGAINST DETINUE

Detinue is the wrongful withholding of the Plaintiffs goods. It is the proper action to
recover possession of the said goods.
Conversion on the other hand is dealing with goods in a manner inconsistent with the
rights of the true owner intending to negative the rights of the true owner or to assert a
right inconsistent with that right as in BULLEN AND LEAKE AND JACOBS PRECEDENTS OF
PLEADINGS 13TH EDITION PG 952.
To constitute a conversion there need to be 1) taking possession of the goods 2)
demand and refusal to hand over the goods to rightful owner.
in BULLEN AND LEAKE AND JACOBS PRECEDENTS OF PLEADINGS 13 TH EDITION PG 953 it
was stated that the distinction between Detinue and conversion is no longer distinct as
the two are now blended. Initially Detinue was the mere possession adverse to the
rights of the person entitled to possession and it was unnecessary to show any intention
to deal with the goods in a way inconsistent with these rights. In practice, however a
demand by the person with possessory title followed by an unjustified refusal to deliver
up is now treated as conversion hence phasing out Detinue.

Conversion within BULLEN AND LEAKE AND JACOBS PRECEDENTS OF PLEADINGS

13TH EDITION is considered in various categories one of which is applicable to our facts
of the case i.e. where a person lawfully in possession of another’s goods acts in a way
that leads to the destruction of the goods or the loss of their identity.

Facts- in the instant case Diamond Trust though initially in lawful possession of the
goods did lead to wrongful destruction of the goods by putting them outside the ware
houses. The failure to maintain these goods and unjustified holding onto the property
yet there had been payments towards the arrears further yet they did not have any
intention of selling the property was intended to negative the rights of YOKA in the
goods.
WINFIELD & JOLOWICZ ON TORT 15th Edition pg 613-remedies that would be available
include delivery up of the goods + consequential damages, 2) Claim for value of the
goods + consequential damages,3) damages.