Daka v Wamboga & Another (Civil Suit 72 of 2022) [2024] UGHC 993 (24 October 2024)

Full Case Text

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE

### CIVIL SUIT NO. 072 OF 2022

# ENG. MICHAEL DAKA ::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### 1. WAMBOGA DOUGLAS

#### 2. COMMISSIONERE LAND REGISTRATION::::::::::::::::::::::::::::::::::::

## **BEFORE: HON. JUSTICE LUBEGA FAROUQ JUDGMENT**

#### 1. Background:

- 2. The Plaintiff instituted this suit against the Defendants for- - (a) a declaration that the Plaintiff is the lawful owner of the land comprised in freehold Register Volume Mba81 Folio 22 Central Mbale Block 3 Plot 5270 Land at Miyale measuring 0.5170 Hectares, - (b) a declaration that the acts of the $1^{st}$ Defendant and/ or his nominees, agents or servants, subsequent purchasers, assignees and successors in title of entering the suit land without the consent and or approval of the plaintiff amounts to trespass and are liable for eviction, - (c) an order directing the 1st Defendant to surrender the certificate of title for land comprised in freehold Register Volume Mba81 Folio 22 Central Mbale Block 3 plot 5270 Land at Miyale measuring 0.5170 Hectares together with transfer documents to the Plaintiff with immediate effect, - (d) the $2^{nd}$ Defendant be ordered to erase the illegal sub divisions (if any) and reinstate the formerly Freehold Register Volume Mba81 Folio 22 Central Mbale Block 3 Plot 5270 Land at Miyale in the names of the Plaintiff as the rightful owner,

- (e) the $2^{nd}$ defendant be ordered to cancel the certificates of title for all - the plots that were created out of Mbale Block 3 plot 5270 land at Miyale (if any), - (f) an eviction order against the 1st Defendant and his nominees, agents or servants to vacate the suit land or any part thereof with immediate effect, - (g) an order directing the 1st Defendant to give to the Plaintiff 73 decimals of land in Mbale City or its equivalent in monetary terms at the current value, - (h) an order directing the 1st Defendant to refund to the Plaintiff Ugx: 17, 954,000/= received over and above the agreed purchase amount of Ugx: 140, 000,000/ $=$ , - (i) a permanent injunction retraining the Defendants, their agents, assignees, legal representatives or any other person rightfully acting under the Defendants from transferring, disposing of, alienating, selling, constructing, developing, mortgaging, creating third party interest or in any way dealing with the suit land without the consent of the Plaintiff, - (j) Mesne profits, - (k) general damages for inconveniences with interest thereon, - (l) punitive damages and - costs of the suit or any other relief this court deem fit. $(m)$ - 3. He further pleaded that in the alternative but without prejudice to the foregoing; an order directing the 2nd Defendant to process a special certificate of title for land comprised in freehold Register Volume Mba 81 Folio 22 Central Mbale Block 3 plot 5270 Land at Miyale measuring 0.5170 Hectares in favour of the Plaintiff be issued. - 4. Facts of the case. - 5. The facts constituting the Plaintiff's cause of action are that; The sale arrangement between the Plaintiff and the 1st Defendant started in February, 2017 for the sale of an unregistered land at Miyale village,

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Mooni Parish, Mutoto Sub-County in Mbale district which the 1st Defendant presented to be measuring 2 acres at a cost of Ugx: $140,000,000/$ = and a deposit of Ugx: 23,750,000/= was paid. The Plaintiff started depositing the purchase price in installments as proposed by the 1st Defendant. However, when the Plaintiff had deposited close to 30% of the agreed price, the parties agreed to formalize the sale by putting the transaction into writing on 5th October, 2018 and a sale agreement was written.

- 6. That at the time a formal agreement was entered, the Plaintiff had paid a total of Ugx: $40,750,000/$ = but by an oversight, a figure of Ugx: 23, $750,000/$ = was entered instead of Ugx: 40,750,000/=. After the sales agreement, the 1st Defendant handed the Plaintiff vacant possession of the said land on the understanding that the Plaintiff pays the balance of the purchase price in installments by electronic bank transfers and mobile money until full payment. - 7. That at the time the Plaintiff took possession of the suit land, it was not registered land and the 1st Defendant had no title for it. - 8. However, between then and June, 2022 when the entire amount had been paid, the 1st Defendant kept on pestering the Plaintiff for the additional payments alleging that he had urgent financial needs and the Plaintiff repeatedly honoured the 1st Defendant's requests for part payments. - 9. After selling to the Plaintiff the said land, the 1st Defendant in the year 2020/2021 without the Plaintiff's knowledge, consent and approval processed the land title for the suit land in his own names and thereafter denied the Plaintiff quite possession by forcefully trespassing thereon claiming it to be his land. - That after learning that the Plaintiff processed the title for the suit 10. land in his names on $29^{th}/07/2022$ , the parties agreed that the Plaintiff pays the 1st Defendant a total of Ugx: $6,000,000/$ = for title processing and a deposit of Ugx: $1,000,000/$ = was made on an understanding that

the Defendant hands over the original title for the suit land together with transfer forms and receives the balance of Ugx: $5,000,000/$ =, but the 1st Defendant has since refused or neglected to hand over the original transfer forms as agreed despite several reminders. That he has also refused to collect the Ugx: 5,000,000/= without any reasonable explanation.

- The Plaintiff further averred that the $1^{st}$ Defendant is in the process $11.$ of subdividing the suit land so as to perpetuate fraudulent dealings which will defeat the Plaintiff's interest. - That since the Plaintiff paid the excess of Ugx: 17, 954,000/=, he 12. claims for the same. - In addition to the above, the Plaintiff also pleaded that the suit land 13. is less than 2 acres. It measures 1.27 acres yet the Plaintiff paid the 1st Defendant money for the 2 acres. That his demands for the refund of the money for the 73 decimals or compensation with alternative piece of land have fallen on deaf ears. - The 1st Defendant on the other hand denied all the Plaintiff's $14.$ averments and contended that he is the lawful owner of the suit land and for that reason, he cannot trespass on his own land or be evicted. He denied any obligation to surrender the certificate of title and stated that there was breach of contract of sale by the Plaintiff. The 1st Defendant contended that he has never transferred land to any other person. - In the written statement of defence, the $1^{st}$ Defendant admitted that 15. the sale agreement was dully executed between him and the Plaintiff however it was never honored, respected and fulfilled by the Plaintiff as he undertook to be bound by the same. He added that the Plaintiff never fulfilled his contractual obligation since he never completed the purchase price as claimed. - The 1st Defendant further contended that he is not in any way 16. indebted to the Plaintiff as he claims.

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- He added that he was under no obligation to first seek permission 17. of the Plaintiff while processing the title of his own land and there is no way he would hand over the said land to a person who was already in breach of the contract of sale. - The above averments were replied to by the Plaintiff. In the reply, 18. the Plaintiff largely reiterated what he pleaded in the Plaint.

#### Commencement of hearing $19.$

- According to the court record, an affidavit of service sworn by 20. Wasirwa Francis of the office of the Director of Public Prosecutions Nakawa on the 26th of August, 2022 a plaint, summary of evidence, list of witnesses, documents and authorities as well as summons were all served to the $2^{nd}$ Defendant but it did not file its written statement of defence. - The record also indicates that the Plaintiff filed his trial buddle, 21. witness statement and the joint scheduling memorandum which were served on the 1st Defendant on the 22nd of February, 2023 through his advocates of M/S Musamali & Co. Advocates as per the affidavit of service sworn by Sseremba Rogers of C/O Karamagi Magezi & Co. Advocates. According to that affidavit of service, all the documents were received on the date mentioned, but the 1st Defendant did not file any response. - Further, in the affidavit of service sworn by Wasirwa Francis of High 22. Court Family Division, the 1st Defendant through his advocates of Musamali & Co. Advocates was on 18th of August, 2023 served with the hearing notices for $21$ st of August, 2023 but he did not respond. - In the affidavit of service dated 5th September, 2023 Wasirwa Francis 23. served hearing notices to the 2nd Defendant on 25th of August, 2023 for 9th of November, 2023 but it still did not respond. - Finally, according to the court record, an affidavit of service sworn $24.$ by Wasirwa Francis indicates that hearing notices were served on the 1st Defendant personally on 10th August, 2024. The same hearing

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notices were served on the 2nd Defendant who acknowledged receipt of the same on 13th of August, 2024 but none of them appeared for the hearing.

Counsel Asasire Saice holding brief for Counsel Kefa Namanya for 25. the Plaintiff at the hearing submitted that the Defendants were served as per the affidavits of service but none of them appeared. He prayed that court proceeds ex-parte under 0.9 rule 20 of the Civil Procedure Rules SI.71. Counsel's prayer was granted by this court and the matter proceeded ex-parte.

#### Legal representation 26.

- Counsel Asasire Saice on brief for Counsel Kefa Namanya 27. represented the Plaintiff and the Defendants were not represented. - At the hearing of this matter on 20th August, 2024 court proceeded 28. with the hearing of the Plaintiff's evidence. He relied on the following exhibits- - (a) The sales agreement between the Plaintiff and the 1st Defendant dated 5th October, 2018 as PEXH.1 - (b) Summary of payments to the $1$ st Defendant as PEXH.2 - (c) Bank statement of A/C No. 903000556002 Stanbic Bank as PEXH.3 - (d) Statement of mobile money transfers as PEXH.4 - (e) Acknowledgment of Ugx: $1,000,000/$ = dated 29th July, 2022 as PEXH.5 - (f) Caveats on the suit land as $PEXH.6$ - (g) Copies of search letters as PEXH. 7 - (h) Demand Notices as PEXH.8 - (i) Copies of WhatsApp chat between the Plaintiff as PEXH.9 - (j) WhatsApp/Telephone number served as Dauglas Wamboga Beatrice in the Plaintiff's phone as PEXH.10 - Issues framed by counsel for the Plaintiff are as follows-29. - (a) Whether or not the Plaintiff is the rightful owner of the suit land?

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- (b) Whether or not the 1st Defendant is in any way indebted to the Plaintiff? - (c) What remedies are available to the Plaintiff? - However, according to the evidence on the court record, the above 30. issues have been revised as below- - (a) Whether the Plaintiff paid all the purchase price? - (b) Whether the Plaintiff breached the land sale agreement and if so, whether he is the lawful owner of the suit land. - (c) Whether the 1st Defendant is in any way indebted to the Plaintiff? - (d) What remedies are available to the parties? - **Analysis of court** 31. - Issue No.1: Whether the Plaintiff paid all the purchase price? 32. - The 1st Defendant in his written statement of defence pleaded that 33. the Plaintiff never completed the purchase price of the suit land as claimed. - I have looked at PEXH.1 (the purchase agreement) and noted that 34. by 5th of October, 2018, the Plaintiff had paid a total sum of Ugx: $35,000,000/$ = inclusive of the cash paid on that day plus the postdated cheque. - According to PEXH.2 supported by PEXH.3 and PEXH.4 (the 35. statement from MTN and the Bank Statement from Stanbic Bank), the Plaintiff paid a total of Ugx: $157,954,000/$ = (One hundred fifty-seven million, nine hundred and fifty-four thousand shillings). - In the sale of land agreement, the Plaintiff purchased the suit land 36. at Ugx: $140,000,000/$ = (One hundred forty million shillings). This would suggest that the Plaintiff paid all the purchase price plus an excess of Ugx: $17,954,000/$ = (Seventeen million nine hundred and fiftyfour thousand shillings) - It is however important to note that some of the transactions in 37. PEXH.3 were not considered by this court because they lacked clear transaction descriptions and this court could not establish whether the

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money therein was paid to the 1st Defendant or not. Such transactions included the transaction of 7th of December, 2018, 24th December, 2018, 8th April, 2019 and 7th of October, 2019. The money in the aforesaid transactions totaled to Ugx: $14,000,000/=$ .

- That amount having been included in PEXH.2, the same shall be 38. deducted to live a total of Ugx: $143,954,000/$ = (One forty-three million, nine hundred fifty-four thousand shillings) hence, the excess amount paid by the Plaintiff is Ugx: $3,954,000/$ = (Three minion nine hundred fifty-four thousand shillings). This total buttressed the Plaintiff's evidence when he said that despite the agreed payment, the 1st Defendant kept on pestering him for part payments alleging that he had urgent financial needs and he repeatedly honoured the same. - In the view of the above, it is evident that the Plaintiff paid all the 39. purchase price. - Issue No. 2: Whether the Plaintiff breached the land sale 40. agreement and if so, whether the Plaintiff is the rightful owner of the suit land? - From the 1st Defendant's written statement of defence, it is not in 41. dispute that the Plaintiff entered into a sale agreement of the suit land with the 1st Defendant. He however alleges that the Plaintiff breached the agreement since he did not fulfill his contractual obligations. This is indicated in paragraphs 11, 12 13 and 14 of the 1st Defendant's written statement of defence. - The Plaintiff on the other hand in his evidence in chief said that he 42. entered into an agreement to purchase the suit land from the 1st Defendant in February, 2017 at a purchase price of Ugx: 140,000,000/=, when the $1^{st}$ Defendant asked him to purchase the land and he started depositing the purchase price in instalments as it was proposed by the 1st Defendant. He tendered in court PEXH.2 which is the summary of the payments for the purchase of land. - Following the claims of both parties above, I will now determine 43. Whether the Plaintiff bleached the contractual obligations - The summary of payment tendered as PEXH.2 indicates payments $44.$ of money to the 1st Defendant using mobile money transfers, bank transfers and cash, from February 2017 to 24th June, 2022. That exhibit further indicates that for all that period, the Plaintiff paid a total of Ugx: 157, 954,000/ $=$ . - From the evidence of the Plaintiff, their initial arrangement was oral 45. or on mutual understanding wherein according to PEXH.1 (the purchase agreement), the Plaintiff had deposited Ugx: $23,750,000/$ = by 5th of October, 2018. The Plaintiff however further alleges that Ugx: $23,750,000/$ = was an oversight but the actual amount he had deposited was Ugx: 40,750,000/=. This piece of evidence cannot however be believed by this court since the agreement where both parties signed indicates he had deposited Ugx: 23,750,000/=. (See: section 91 of the Evidence Act Cap 8). - However, on the day when the sale of land agreement was entered 46. into by the parties, the Plaintiff further deposited Ugx: $1,250,000/$ = cash and Ugx: $10,000,000/$ = by way of a postdated cheque which was issued as the $2^{nd}$ instalment of the purchase price. The purchase price of the suit land as per clause 1 (i) of the land sale agreement was Ugx: $140,000,000/$ =. This means by 5th of October, 2018 when the agreement was entered into, the Plaintiff had paid a total of Ugx: $35,000,000/$ = and the balance was to be paid in five instalments as below- - (a) Uganda shillings 20,000,000/= on $15th$ of January, 2019 - (b) Uganda Shillings 20,000,000/ $=$ on 15th of March, 2019 - (c) Uganda Shillings 20,000,000/ $=$ on 15th of May, 2019 - (d) Uganda Shillings 20,000,000/= on $15^{th}$ of July, 2019 - (e) Uganda Shillings 25,000,000/= on $15$ th of September, 2019

- The above break down meant that the Plaintiff was supposed to 47. complete the payment for the suit land by September, 2019 but he instead paid up to 24th of June, 2022 as per PEXH.3 and PEXH.4. - Following the aforesaid exhibits, the Plaintiff did not comply with the 48. time lines for payment of the instalments. For example, according to PEXH. 3, on 25th of February, 2019 the Plaintiff paid Ugx: $5,000,000/$ = way beyond the stipulated time frame and below the amount stated in the agreement. Another instalment of Ugx: $5,000,000/$ = was made on 21st of March, 2019 still beyond the time frame and below the amount. The 1st Defendant however kept on accepting such instalments without objecting to any. He even accepted instalments as less as Ugx: $250,000$ /= according to PEXH.4. - Therefore, the 1st Defendant having accepted instalments beyond 49. the time lines and below the amount stated in PEXH.1, meant that time was not of essence. Secondly, it did not matter whatever amount was deposited by the Plaintiff.

Section 114 of the Evidence Act Cap 8 provides that-50.

"When one person has, by his or her declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon that belief, neither he or she nor his or her representative shall be allowed, in any suit or proceeding between himself or herself and that person or his or her representative, to deny the truth of that thing."

In Crabb V. Arun District Council [1976] 1 Ch.183, Lord Denning $51.$ explained the basis for the claim and stated that-

"The basis of this proprietary estoppel, as indeed of promissory estoppel, is the interposition of equity. Equity comes in, true to form, to mitigate the rigours of strict law."

The above was further elucidated in Ramsden V. Dvson (1866) L. R. 52. 1 H. L. 129, where it was held that-

"If a stranger begins to build on my land supposing it to be his own, and I, perceiving his mistake, abstain from setting him right, and leave him to persevere in his error, a Court of equity will not allow me afterwards to assert my title to the land on which he had expended money on the supposition that the land was his own. It considers that, when I saw the mistake to which he had fallen, it was my duty to be active and to state my adverse title; and that it would be dishonest in me to remain willfully passive on such an occasion, in order afterwards to *profit by the mistake which I might have prevented."*

- From the above, it is clear that the doctrine of estoppel will prevent 53. a person from insisting on his strict legal rights, whether arising under a contract, or on his title deeds, or by statute, when it would be inequitable for him to do so having regard to the dealings which have taken place between them. - In the instant case, the Plaintiff and the 1st Defendant entered into 54. a land sale agreement on $5th$ of October, 2018. In that agreement, they agreed on how the Plaintiff was supposed to pay the balance of the purchase price. However, according to PEXH.3 and PEXH.4, the 1st Defendant on different occasions allowed instalments that were paid beyond the times and far less than the agreed amounts. - Following the guidance in **Ramsden V. Dvson (supra),** the 1st 55. Defendant ought to have rejected the amounts that were paid contrary to the agreement. Having not done so, he cannot afterwards allege that the Plaintiff breached the contract. - Therefore, the 1st Defendant having allowed such instalments 56. without objection, he is estopped from claiming that the Plaintiff breached the contract since he did not fulfill the contractual obligations. - Whether the Defendant breached the land sale agreement when he 57. registered the suit land in his names and thereafter re-entered same

- The Plaintiff further in his evidence in chief said that after the sales 58. agreement, the 1st Defendant handed over to him vacant possession of the said land on the understanding that he pays the balance of the purchase price in instalments by electronic bank transfer and mobile money until full payment on his bank account number 3201598199 held in Centenary Bank and mobile money account number 0776889853 held with MTN. - The Plaintiff also said that at the time when he purchased the suit 59. land and took possession, it was not registered land and the 1st Defendant had no land title for it. However, after selling the same, the 1st Defendant in the year 2020/2021 without the Plaintiff's knowledge, consent or approval processed the land title for the suit land in his own names, refused to transfer it in the names of the Plaintiff and denied him quiet possession by forcefully trespassing thereon claiming that it's his land. - Further, the Plaintiff said that after learning that the 1st Defendant 60. processed the title for the suit land in his names on 29th of July, 2022, they agreed that the Plaintiff pays the 1st Defendant a total of Ugx: $6,000,000/$ = for title processing. Following that agreement, the Plaintiff deposited Ugx: $1,000,000/$ = on the understanding that the 1st Defendant hands over the original title for the suit land together with the transfer forms and receives the balance of Ugx: $5,000,000/$ = but the 1st Defendant has since then, refused, ignored or neglected to hand over the title together with the transfer forms as agreed despite several demands and reminders. - The above evidence is supported by PEXH.5 which is the 61. acknowledgement allegedly written and signed by the 1st Defendant dated 29th of July, 2022. I have compared the 1st Defendant's signature in PEXH.5 and PEXH.1 and found them to appear different. The hand which is alleged to have signed PEXH.1 appears to have been confident whereas the hand which is alleged to have signed PEXH.5 was not.

Secondly, the appearance of the two signatures is completely different. For that reason, I have found PEXH.5 not to be a genuine document.

- Be the above as it may, from the discussion in the body of this 62. judgment, it is quite clear that the Plaintiff paid all the purchase price for unregistered piece of land which is in dispute. - On perusal of PEXH.1 it was stated at the preamble that-63. - "The vendor is the beneficial owner of un registered piece of" land located at Miyale village, Mooni Parish, Mutoto Sub *County, Mbale District measuring 2 acres being his beneficial* share out of the estate of the late SAMUEL WANIALE MAGONA..." - Under clause 3 of the same exhibit, it was stated that-64. - "It is hereby understood and agreed that the purchaser shall bear and incur costs incidental to and in connection with the *conveyance inclusive of the government dues such as stamp* duty, survey fees and registration fees, on transfer into his names." - The above clause implies that the suit land though was sold as 65. unregistered land, it was supposed to be registered and the Plaintiff was to incur costs in connection to its registration and transfer. - Therefore, the 1st Defendant was complying with the condition in 66. PEXH.1 when he registered the suit land. However, the agreement having indicated that it was the Plaintiff to incur costs connected to registration and transfer, meant that the same was supposed to be registered in the Plaintiff's names. - In the circumstance, the 1st Defendant breached the said clause of 67. the agreement when he registered the suit land in his names yet he had already sold the same to the Plaintiff. - Secondly, the action of the 1st Defendant of registering the suit land 68. into his names amounted to unjust enrichment which this court cannot condone.

- In the Black's Law Dictionary, 8th Edition (Bryan A. Garner) at 69. page 1573, it was stated that- "A claim for unjust enrichment arises where there has been an "unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience." - In Enviro-Legal Action V. Union of India and others (2011) 8 70. SCC 161, the Supreme Court of India defined the term Unjust enrichment to mean- "A benefit obtained from another, not intended as a gift and not legally justifiable, for which the beneficiary must make restitution or recompense." - Unjust enrichment has been defined by the court as the unjust 71. retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. A person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust. Unjust enrichment of a person occurs when he has and retains money, benefits or property which in justice and equity belongs to another. - Unjust enrichment is the unjust retention of a benefit to the loss of 72. another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. A defendant may be liable even when the defendant retaining the benefit is not a wrongdoer and even though he may have received it honestly in the first instance. (See: Schock V. Nash, 732 A.2d 217, 232-33 (Delaware. 1999). USA) - Lord Denning also stated in Nelson V. Larholt [1947] 2 All ER 751 73. as under:

"..... It is no longer appropriate, however, to draw a distinction between law and equity. Principles have now to be stated in the light of their combined effect. Nor is it necessary to canvass the niceties of the old forms of action. Remedies now depend on

the substance of the right, not on whether they can be fitted into a particular frame-work. The right here is not peculiar to equity or contract or tort, but falls naturally within the important category of cases where the court orders restitution if the justice of the case so requires."

- In the instant case, it is apparent that the 1st Defendant sold 74. unregistered piece of land to the Plaintiff on an understanding that upon conveyance, it will be the duty of the Plaintiff to pay for the registration and transfer costs as per PEXH.1. However, after the Plaintiff had paid all the purchase price, he learnt that the 1st Defendant had registered the suit land into his names. See: PEXH.7. - After registration, the 1st Defendant re-entered the suit land and 75. started sub-dividing it, so as to perpetuate fraudulent dealings. This amounts to unjust enrichment. The Plaintiff had already purchased the suit land and therefore it had to be registered in his names. - As it is a practice, this court visited the locus in quo on 18th of 76. October, 2024. At locus, it was observed that there are third party claimants who allegedly purchased the suit land as registered land from the 1st Defendant in 2022 yet the Plaintiff purchased the same in 2017 as per PEXH.1. It was further observed that the 3rd party claimants are the ones in occupation of the suit land carrying out some farming activities yet as per PEXH.1 the 1st Defendant had handed over possession of the same to the Plaintiff. This is outrageous. - Whether the land which the 1st Defendant sold to the Plaintiff was 77. less than 2 acres? - The Plaintiff further testified that according to PEXH.1, the land in 78. dispute was supposed to be 2 acres but on ground, it is only 1.27 acres. This court visited locus and observed that the land appears not to be 2 acres as indicated in PEXH.1although this fact could not be ascertained through measurement to prove the same.

- Ordinarily, it is a known fact that an acre of land would be 79. equivalent to a standard measured foot pitches, however, from the court's observation at locus one would have expected to see an area equivalent to two football pitches, but it is unfortunate that what court observed was less than that. - The Black's Law Dictionary 5th Edition at page 171 defines 80. breach of contract to mean- "where one party to a contract fails to carry out a term." - In the case of Nakana Trading Co. Ltd V. Coffee Marketing Board 81. Civil Suit No. 137 of 1991 court defined a breach of contract as where- "one or both parties fail to fulfil the obligations imposed by the terms of the contract." - Further in AZK Service Limited V. Crane Bank Limited Civil Suit 82. No. 334 of 2016, court noted that- "a breach occurs when a party neglects, refuses or fails to perform any part of its bargain or any term of the contract, written or oral, without a legitimate legal excuse." - In the present case, PEXH.1 which is the land sale agreement, shows 83. that the 1st Defendant was to hand over the suit land to the Plaintiff on 5th of October, 2017. The agreement further indicates that in case of any registration of the suit land, it was the Plaintiff who was supposed to pay for the costs of registration and transfer as per clause 2(i) and 3. Thirdly, it indicates that the suit land is 2 acres and yet on ground is less. - All the above amount to a breach of contract by the 1st Defendant. 84. - Whether the Plaintiff is the lawful owner of the suit land? 85. - Having resolved that the Plaintiff paid all the purchase price, I am 86. inclined to find that the Plaintiff is the rightful owner of the suit land - Issue No.3: Whether the $1^{st}$ Defendant is in any way indebted 87. to the Plaintiff?

Following my discussion in issue No.1, I find that the Plaintiff paid 88. the excess of Ugx: 3,954,000/=, which means the $1^{st}$ Defendant is indebted to the Plaintiff to the tune of the aforesaid amount.

## Issue No.4: What remedies are available to the Plaintiff? 89.

- 90. Mesne profits - Counsel for the Plaintiff submitted that the 1st Defendant has been 91. in occupation of the suit land since 2021 when he allowed 3rd parties to use it and illegally processed the land title. He argued that the 1st Defendant has been using the suit land for crop cultivation where he has been getting great harvests of approximately Ugx: $10,000,000/$ = per season. That having utilized the land for 6 seasons, he prayed for Ugx: $60,000,000/$ = to be awarded to the Plaintiff as mesne profits. - He cited section 2 (m) of the Civil Procedure Act Cap 282 where 92. mesne profits are defined to mean-

"Those profits which the person in wrongful possession of the *property actually received or might with ordinary diligence have* received from it together with interest on those profits, but shall *not include profits due to improvements made by the person in* wrongful possession." He also cited the case of George Kasedde Mukasa V. Emmanuel Wambedde.

- According to PEXH.1, the 1st Defendant handed over the suit land 93. to the Plaintiff on 5th of October, 2017 but after registration of the suit land, he re-entered the suit land and took possession of the same since 2021. - The Plaintiff alleges that the 1st Defendant has since then been 94. cultivating the suit land and has been getting heavy harvests to a tune of Ugx: $10,000,000/$ = per harvest for six seasons, but no proof of such harvests was tendered in court. This court cannot rely on mere speculations. - If this was true, the Plaintiff ought to have tendered in evidence to 95. prove the same since he has also ever used the suit land. He should at

least have tendered proof to show that during the time he used the suit land, he was making such harvests and received the said amounts but he did not.

- The above notwithstanding, upon locus visit, it was observed that 96. the suit land was being used for cultivation. - In the circumstance, the Plaintiff is awarded Ugx: $5,000,000/$ = for 97. mesne profits.

## General damages 98.

- Counsel for the Plaintiff submitted that the 1st Defendant greatly 99. inconvenienced the Plaintiff when he sold to the Plaintiff the suit land which he presented to be 2 acres and yet it was less. As if that was not enough, he went ahead to process a land title for it in his own names without the knowledge, consent and approval of the Plaintiff and thereafter denied the Plaintiff quiet possession by forcefully trespassing thereon, refused to hand over the original title together with transfer forms as agreed despite several demands and reminders. - 100. He prayed for Ugx: $100,000,000/$ = as general damages for all the inconveniences and loss suffered as proposed by the Plaintiff. Counsel cited the case of Strooms V. Hutchinson [1905]AC at page 525 where Lord Macnaghten stated that- "the law will presume general damages to be the direct, natural or probable consequences of the act complained." - 101. The Plaintiff in his evidence said that due to the 1st Defendant's actions, he suffered mental and physical anguish, psychological torture and general inconvenience. - 102. The position of the law is that general damages are awarded to fulfil the common law remedy of restitutio in integrum. The Plaintiff has to be restored as nearly as possible and as money can do to a position he or she would have been in had the breach complained of not occurred. (See: Dharamshi V. Karsan [1974] 1 EA 41)

## 103. In Common Cause, A Registered Society V. Union of India, the Supreme Court of India held that-

"the object of an award of damages is to give the plaintiff compensation for damage, loss or injury he has suffered. The Court further held that the elements of damage recognized *by law are divisible into two main groups: pecuniary and non*pecuniary loss. While the pecuniary loss is capable of being arithmetically worked out, the non-pecuniary loss is not so calculable. Non-pecuniary loss is compensated in terms of *money, not as a substitute or replacement for other money, but* as a substitute, what **McGregor** says, is generally more *important than money: it is the best that a court can do."*

- 104. Therefore, the object of awarding damages is to make good the loss suffered as a result of the wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or the tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy. (See: Govind Yadav V. New India Insurance *Company Ltd.16* - 105. In the instant case, on 5th of October, 2017, the 1st Defendant handed over vacant possession of the unregistered piece of land in dispute to the Plaintiff. However, in 2021, the 1st Defendant registered the alleged land and re-entered the same, hence, displacing the Plaintiff and depriving him of quiet possession. That action caused mental anguish, psychological torture and general inconvenience to the Plaintiff. - 106. In the circumstance, the Plaintiff is awarded Ugx: 50,000,000/= (Fifty million shillings) as general damages. - 107. The Plaintiff further prayed for punitive or exemplary damages. However, since the award of damages is discretionally, this prayer is denied. - 108. Interest on general damages

- 109. Counsel for the Plaintiff submitted that the award of interest is at the discretion of court. He argued that considering the ever rising inflation and drastic depreciation of the currency and the fact that this was a commercial transaction, and the 1st Defendant having inconvenienced the plaintiff since 2021, counsel proposed the interest of 30% - 110. Section 26 (2) of the Civil Procedure Act Cap 282 provides that-

"Where the decree is for the payment of money, the court may in the decree, order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit."

111. The position of reasonable interest stated in the above provision was emphasized in Riches V. Westminster Bank Ltd [1947] 1 All ER 469 HL at page 472 where Lord Wright explains the essence of an interest award in the following words-

> "... It may be regarded either as representing the profit he might have made if he had had the use of the money, or, conversely, the loss he suffered because he had not that use. The general idea is that he is entitled to compensation for the deprivation...."

112. In the instant case, there is no proof that the Plaintiff was using the suit land for commercial purposes before he was deprived of the same. Following that background, the Plaintiff is awarded interest at the rate

of 8% per annum on general damages from the date of this judgment till payment in full.

- 113. In the alternative, the Plaintiff prayed for a special certificate of title. However, the circumstances under such an order can be made are very clear and none was pleaded by the plaintiff. - 114. In conclusion, this Judgment is entered in favour of the plaintiff in the terms below- - (a) It is declared that the Plaintiff is the lawful owner of land comprised in Freehold Register Volume Mba 81 Folio 22 Central Mbale Block 3 Plot 5270 Land at Miyale measuring 0.5170 Hectares. - (b) It is declared that the 1st Defendant is indebted to the Plaintiff to the tune of Ugx: $3,954,000/$ = (Three million nine hundred and fifty four thousand shillings) - (c) It is declared that the 1st Defendant breached the agreement when he re-entered the suit land without the consent and or approval of the Plaintiff. - (d) It is declared that the 1st Defendant breached the agreement when he handed over land measuring less than 2 acres contrary to what was agreed upon. - (e) The $2^{nd}$ Defendant is ordered to cancel the name of the $1^{st}$ Defendant from the Duplicate certificate of title for Freehold Register Volume Mba 81 Folio 22 Central Mbale Block 3 Plot 5270 Land at Miyale measuring 0.5170 Hectares and register it in the names of the Plaintiff. - (f) The $1^{st}$ Defendant, his nominees, servants or agents shall vacant the suit land forthwith.

- (g) The 1st Defendant is ordered to compensate the Plaintiff for the balance of the land at the current market value after proper survey of the land to ascertain the missing decimals. - (h) The Plaintiff is awarded mesne profits of Ugx: $5,000,000/$ = (five million shillings) - (i) The Plaintiff is awarded general damages amounting to Ugx: $50,000,000/$ = at an interest of 8%. - (j) A permanent injunction is issued restraining the Defendants, their agent, assignees, legal representatives or any other person rightfully acting under the Defendants from transferring, disposing of, alienating, selling, constructing, developing, mortgaging, creating third party interest or in any way dealing with the suit land without the consent of the Plaintiff.

(k) Costs of the suit are awarded to the Plaintiff.

I so order.

OUO LUBEGA Ag. JUDGE

Judgment delivered via the email of the advocates of the parties on 24th day of October, 2024