Busingye v Muhairwe (Civil Suit 2 of 2022) [2024] UGHC 678 (12 July 2024)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA HCT-05-LD-CS-0002-2022 BETTY BUSINGYE :::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF

#### VERSUS

# EDITH MUHAIRWE ::::::::::::::::::::::::::::::::::::::::::::::: DEFENDANT BEFORE: HON LADY JUSTICE JOYCE KAVUMA

#### JUDGMENT

#### Introduction.

[1] The Plaintiff brought this suit against the Defendant seeking specific damages and general damages for breach of contract. She also sought for costs of the suit and interest.

It was the Plaintiff's case that by an agreement dated 7th September 2016, the Defendant sold to her land situated at Kakiika, Mbarara City comprised in FRV 1268, Kashari Block 1 at a consideration of UGX 60,000,000/=. That of the sum, the Plaintiff paid only UGX 25,000,000/= leaving a balance of UGX 35,000,000/= un paid. The Defendant resold the land without her consent to third parties and refunded to the Plaintiff UGX 15,000,000/= leaving a balance of UGX 10,000,000/= when she neglected to pay. That the Plaintiff wrote to the Defendant through her lawyers a notice of intention to sue which prompted her to pay UGX 2,000,000/=.

The Plaintiff sought for judgment in the following terms;

- i. Payment of due balance of UGX 10,000,000/=. - ii. General damages and punitive damages.

- iii. Costs of the suit. - iv. Interest at court rate from the date of default until final settlement. - v. Any other relief deemed fit by the court.

#### Representation.

[2]The Plaintiff was represented by Mr. Agaba Jadison from Ms. Ahimbisibwe and Agaba Co. Advocates while the Defendant was unrepresented the matter having proceeded ex-parte.

#### Analysis and decision.

[3]Before I could write this judgment, I observed some issues regarding the filing of this suit that I would like to point out. According to the Plaint in this matter, the Plaintiff's claim is for UGX 10,000,000. (See paragraph 11).

Whereas this court as a High Court is seized with both unlimited original and appellate jurisdiction vested in it by Article 139(1) of the 1995 Constitution of Uganda (as amended), it is now the settled position of the law that cases shall be filed in the lowest court competent to handle them and this court has power to transfer a case filed in it where the court finds that the case can be conveniently tried in a s subordinate court. (See P. Munyagwa Nsibirwa vs Lucy Kamujanduzi [1972] HCB 92 and Mohamed Bin Shebai vs Mohamed Bin Mohamed [1906-1908] 2 KLR 107 at 108.

The civil jurisdiction of Magistrate Courts is provided for under Section 207 of the Magistrates Court Act (as amended) as follows;

## 207. Civil jurisdiction of magistrates.

(1) Subject to this section and any other written law, the jurisdiction of magistrates presiding over magistrates courts for the trial and determination of causes and matters of a civil nature shall be as follows— (a) a chief magistrate shall have jurisdiction where the value of the subject matter in dispute does not exceed five million shillings and shall have unlimited jurisdiction in disputes relating to conversion, damage to property or trespass; (b) a magistrate grade I shall have jurisdiction where the value of the subject matter does not exceed two million shillings; (c) a magistrate grade II shall have jurisdiction where the value of the subject matter in dispute does not exceed five hundred thousand shillings; and (d) a magistrate grade III shall have jurisdiction where the value of the subject matter in dispute does not exceed two hundred and fifty thousand shillings.

According to the foregoing provision, Section (1)(a) and (b) provide for the pecuniary jurisdiction of a Chief Magistrate which he or she may grant under the Act in respect of any case before them not to exceed UGX 50,000,000/= and that of a Magistrate Grade One as UGX 20,000,000/=.

As already pointed out above, the Plaintiff's claim in the Plaint under paragraph 11 is for a subject matter of UGX 10,000,000/= of which UGX 2,000,000/= was paid by the Defendant in October 2021. (See paragraph 8 of the Plaint).

It therefore follows that this matter ought to have been filed in a Chief Magistrate's Court and allocated to a Magistrate Grade One which was not done. This would make such a case liable to being transferred to a proper court.

This power of transfer a suit instituted in a court of a higher grade is however discretionary. The court should take into consideration for example at what stage the case has reached and whether or not the transfer at that stage would do justice to the parties of the suit. In P. Munyagwa Nsibirwa (supra), this court held that this irregularity is one

of procedure and does not affect the jurisdiction of this court.

In the interest of justice, given the fact that the matter is on judgment, I will render judgment.

## The Plaintiff's evidence.

[4] Kasiisi Balaam a donee of powers of attorney from the Plaintiff led evidence on her behalf by witness statement.

He told court that he knew the Defendant. That the Plaintiff executed an agreement for sale of land with the Defendant at UGX 60,000,000/= of which she paid UGX 25,000,000/= upon execution of the agreement and the balance was to be paid by 31st June 2017. The agreement was tendered into court and exhibited as PEXh 2.

He further told court that the Defendant sold the land before the Plaintiff could pay the balance to third parties who took possession of the land. That the defendant later agreed to refund the Plaintiff's money of which he only refunded UGX 15,000,000/= leaving a balance of UGX 10,000,000/= outstanding. That in October 2021 the Defendant promised and consented to pay the Plaintiff the balance of UGX 10,000,000/= by 31st/12/21 without fail. A receipt was tendered into court and exhibited as PEXh 3. That despite several demands, the Defendant neglected to pay the money causing great loss to the Plaintiff hence this suit.

[5] It is a settled principle of evidence that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove those facts exists. (See Section 101 of the Evidence Act). It is said that this person has the burden of proof. This is the person whose suit or proceeding would fail if no evidence at all were given on either side. (See Section 102 of the Evidence Act).

The standard of proof in cases like the instant one is on a balance of probabilities. (See Miller vs Minister of Pensions [1972] 2 All ER 372.

When the court sets down a suit for formal proof after a default judgment has been made as was in the instant case, the Plaintiff is under a duty to place before the court evidence to sustain the averments in his or her plaint. The pleadings and written submissions are not evidence. Thus even where there is no rebuttal because of the Defendants' failure to file a written statement of defence, hence in a matter that requires formal proof, sections 101 – 104 and 106 of The Evidence Act apply. The Plaintiff being desirous of the court giving judgment as to legal rights or liability dependent on the existence of facts which she asserts, must prove that those facts exist.

The Plaintiff had the duty to prove to this court that she was entitled to the UGX 10,000,000/= that she claimed.

[6] According to the Plaint, under paragraph 5, the Plaintiff averred that of the UGX 60,000,000/= she was to pay for the land she bought from the Defendant she only paid UGX 25,000,000/= leaving a balance of UGX 35,000,000/=. This is corroborated by PEXh 2 the land sale agreement.

According to paragraph 8 of the Plaint, the Plaintiff averred that;

"That after seeing her not paying the balance the Plaintiff through lawyers wrote to her notice of intention to sue where she further part paid UGX 2,000,000/= in October 2021 and after he promised to pay the balance by 31/12/21 but to date she never paid."

The import of the above would mean that the balance that remained unpaid due to the Plaintiff was UGX 8,000,000/= and not the UGX 10,000,000/= that she was claiming. PW1 told this court that the Defendant promised and consented to pay the Plaintiff the balance of UGX 10,000,000/= by 31/12/21 without fail. He referred this court to PEXh 3. I have had the benefit of looking at the receipt marked PEXh 3 and I note that indeed the Defendant paid UGX 2,000,000/= on 20th October 2021 to the Plaintiff's lawyers M/s Ahimbisibwe & Agaba Co. Advocates. I however note that the balance indicated on the receipt does not tally with the pleadings of the Plaintiff and neither does the receipt indicate consent and a promise by the Defendant.

It is therefore my finding that the evidence before me and the pleadings of the Plaintiff only account for UGX 8,000,000/= as outstanding.

# Judgment is given in favour of the Plaintiff for a sum of UGX 8,000,000/= which she has been able to prove.

## General and punitive damages.

The Plaintiff prayed for an award of general damages against the Defendant. Damages are that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation. (See Livingstone vs Rawyards Coal Co. (1880) 2 App. Cas. 25, 39). The award of damages is an exercise of judicial discretion which like all judicial discretions ought to be exercised judiciously.

For the time the Defendant remained with the Plaintiff's money and prompted her to seek out lawyers before she made a part payment, I award the Plaintiff UGX 1,000,000 UGX as general damages.

It is a general rule that exemplary damages are punitive in nature. They should not be awarded to enrich the claimant but to punish or deter the party at fault from repeating his or her conduct. With due regard to the circumstances of this case I do not find it just to award exemplary damages against the Defendant. Exemplary damages are therefore denied.

#### Interest at court rate.

It is well settled that award of interest is in the discretion of the court. The determination of the rate of interest is also in the discretion of the court. (See Omunyokol Akol Johnson vs Attorney General [2012] UGSC 4. Interest rates on special damages should be with effect from the date of loss till payment in full while on general damages it should be from the date of judgment as it is only ascertained in the judgment. (See Hope Mukankusi vs URA UGCA CA no. 06 of 2011

In the instant case, the Plaintiff failed to tell court on which sum she sought for interest. I therefore find an award of interest of 8% per annum on the general damages from the date of judgment in this court till payment in full just in the circumstances.

On costs, it is now trite that costs follow the event. The Plaintiff being the successful party herein, she is awarded the costs of the suit.

I so order.

Dated, delivered and signed at Mbarara this 12th day of July 2024.

## Joyce Kavuma Judge