Kiyingi v Kimbowa and 6 Others (Civil Suit 215 of 2015) [2023] UGHCLD 246 (17 August 2023)

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA (LAND DMSION) cIvIL SUIT NO.215 0F 2015

PLAINTIFF VERSUS 1. TOM BADDA KIMBOWA 2. SENDEGE G. WILLIAM (Administrator of the Estate of the late Moses Grace Kibuukaf 3. LUWAMBO GODFREY 4. KISUULE TONNY 5. NAMUTEBI ANNET 6. SEBALAMU HENRY DEFENDANTS / COUNTER CLAIMANTS 7. I(IZITO MOSES GRACE TOM KIYINGI -----

### JUDGMENT BEFORE AG. HON. LADYJUSTICE KANYANGE SUSAN

The plaintiff brought this suit against the defendants seeking for an order for removal of a caveat lodged by the 3\*l defendant on land comprised on Buruli Block 23O plot 256 at Ktjaguza Kakoge Nakasongola District, order of specific performance compelting the Administrators of thc estate ol the late Moses Grace Kibuka to effect transfer of title equivalent to mailo interest of 2. BO acres of land into the plaintiffs' names, punitive and general damages against the 3'd defendant and costs of the case.

Initially the case was against the administrators of the estate of the late Moses Grace Kibuka. A consent judgment was entered where they confirmed the sale transaction executed on I3rh . June 20 l4. It was agreed case proceeds against the 3'd defendant Luwcmba Godlrey. 11'r. {th, 5Lh, 6th and 7th defendants requested to bc joined as co-defendants and they were allowed by court.

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They averred that they were not party to the agreemcnt dated 13-06 2015 arrd only know the one of 13-06-2014. That out of the Shs.5,650,000/: agreed upon, the plaintiff paid only Shs.3,00O,O0O/: and remained with a baiance of Shs.2,651,000/:. The said balance was not paid and they could only remove caveat after payment of the same. They counter claimed for breach of contract, an order directing the plaintiff to pay the balance of Shs.2,651,000/: interest, general damages, punitive damages and costs of the suit

At the further hearing of the case the defendants were served personally after their counsel Nambirige declined service but did not turn-up so the matter proceeded exparte.

#### Representation

The plaintiff was represented by M/s Kasumba Kugonza & Co. Advocates while the defendants were represented by M/s Nambirige & Co. Advocates.

#### Issues

- 1. Whether the plaintiff purchased registered interest of 2.80 acres on land comprised in Buruli 230 plot 256 land at Kijaguza Kakoge - Nakasongola District if so. - 2. Whether the full purchase price was duly paid - 3. Whether the 3.a defendant was justified in lodging a caveat on the suit land - 4. What remedies are available to the parties

#### Resolution

- 1. Whether the plaintiff purchased registered interest of 2.80 acres on land comprised in Buruli 23O plot 256 land at Kijaguza Kakoge-Nakasongola District. - 2. Whether the full purchase price was duly paid

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PW-l- Tom Kiyingi testified that he was in possession of his kibanja measuring 2. BO acres on land comprised in Buruli Block 23O plot 256 at Ki.iaguza Kakoge - Nakasongola District. That in June 2Ol4 the defendants and other family members approached him to buy his registerable interest of land. He agreed with the defendant' beneficiarics and administrators of the estate of the late Moses Grace Kibuka and on 13th June 2014 they entered into an agreement sale at a consideration of Shs 5,650,00O/:. He paid Shs 3,000,000/: to 2"d dcfcndant in presence of al1 the defendants and a balance was to be paid by Novembet 2014.

He was later surprised to find that the 3'd defendant Luwemba lodged a caveat on the said land. They were all summoned by the Registrar Bukalasa. He paid next installment of shs1,9O0,OO0/= to the 1"t and 2"d defendants, on 28tr. -O2-2O15 another Shs 350,000 l: to the Jrcr dsfgndanf and the balance of Shs.400,0OO/: to the 1"t and2"'t defendants' A consent judgment was made between him and the 1"t and 2"d defendants but the 3.4 defendant refused and other defendants' beneficiaries also joined the suit.

Counsel for the plaintiff submitted that in the conscnt judgment the <sup>I</sup>"1, 2"d and 3.d defendants do not dispute receiving all the installments, as per agreement and the 3rd to 71h defendants in their Joint amcnded written statement of defence artd counter claim acknowledge the salc. He invited court to find that the plaintiff paid consideration for registerable interest of 2.80 acres and he discharged his contractual obligation.

He referred to Section 10 of the Contracts Act No.7 20lO where a contract is defined as arr agreement made with the full consent of parties with capacity to contract in a lawfui consideration and with a lawful objective, with the intention to be legally bound and that it may be oral or written or partly oral and partly written or may be implied from the conduct of the parties.

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ln the agreement of sale dated 13th June 2014 the lamily member of thc late Moses Kibuka Grace sold 2 acres and 80 decimals to the plaintiif at Shs.5,65O,0OOl: and he paid Shs.3,0OO,O00/: leaving a balance of Shs.2,65O,O0O/:.

The sellers who signed on the agreement were Kimbowa Tom Badda, G W Sendege, Luwemba Godfrey, Namutebi Annet, Sebalamu Henry, Kisuule Tonny and Kizito Moses Grace. In the consent judgment daled 27th October 2015 between Tom Kiyingi plaintiff and Ssendege G. William, l"t defendant and 2"d defendant Tom Budda Kimbowa the defendants confirmed that the sale transaction existed and that the last installment of Shs.40O,00O/: had been paid to the Isr and 2n(t dcfcndants.

In their written statement of dcfence paragraph 7 (d) the defcndants stated that as family member they agreed to sell the said land at Shs.5,560,000/: and Shs.3,0O0,OOO/: was paid but a ba.lance of Shs.2,650,000/: was not paid. In the case of William Kasozi versus DFCU Bank Ltd High Court civil suit No. 1326 of 2OOO Lady Justicc C K Byamugisha while considering the prerequisites that must exist in order for a contract to be valid and enforceable stated that "Oncc a contract is valid, it created reciprocal rights and obligations between the parties to it. I think it is thc law that when a document containing contractual tcrms is signed, thcn in the absence of fraud, or misrepresentation the party signing it is bound by its terms.

When one party fails to perform his or her obligations the guilty party is said to be in breach of the contract and the innocent party is entitled to a remedy.

ln the case of Ronald Kasibante versus Shell Uganda Ltd HCCS No.542 o 2OL6 breach of contract was defined as "the breaching of the obligation which a contract imposed which confers a right of action for damages on the injured party".

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It's not in dispute that the plaintiff purchased registerable interest of 2.80 acres of land comprised in Buruli Block 230 plot 256 land at kijaguza kakoge Nakasongola district and the 3r(l to 7th defcndants acknowiedge this in their written statement of defence. The contention was on payment of the fu1l purchase price.

The consent Judgment tendered in by PW1 Tom Kiyingi in support of his evidence proves that he paid all the installments of the purchase price to 2"d defendant. The defendants did not testify in court and did not bring contrariiy evidence.

In civil cases, it's an established principle that thc burdcn of proof lics on the plaintiff to prove his/her case on a balance of probabilities. A party is then called on to dispute or rebut what has been proved by other party. see case of Lugazi Progressive School and another versus Serunjogi and others.2OOl-2OO5 HCBpg 12

Since the ptaintiffs evidence was not disputcd or rebuted by the defendants evidence, then I find that the plaintiff purchased the registcrable intcrest of 2.8O acres and did not breach the contract but paid ali the contractual sum of shs 5650,000 to the defendants.

## 3. Whether the 3'd defendant was justified in lodging a caveat on the suit land.

The plaintiff testified that before he could pay balancc of Shs 2,150,OOO lhe was shocked to learn that the 3'd defcndant had lodged a caveat on the suit land on the 14th J:uly 2074. Thcy were callcd by the Registrar Bukalasa Land Office and he was told to pay by 28n' -2-2o75,he added 3\*t defendant Shs 35O,OOO/: to remove caveat but he did not remove the same. In the consent judgment with the 1"t and 2"d dcfendants they agrced he continues case with 3rd defendant who had unfairly lodged a caveat'

Counsel for the plaintiff submitted that by thc 3'd defendant unjustifiably lodging the caveat after one month he breached their contractual obligation. That he had no caveatable interest as it was a preserve of the administrators of the estate.

He referred me to case of Maria Nanteza & 3 Others versus Nasani Rwamununa Civil Appeal No.2O13.

Section 139 of Registration of Titles Act provides that any beneficiary or any other person claiming any cstate or intercst on land under the operation of this Act or in any leasc or mortgage under any unregistered instrument or any dcvolution on law or otherwise may lodge a caveat with the Registrar...... forbidding the registration of any person as transferee or proprietor of and any instrument affecting that estate or interest until after notice of the intended registration.

For a caveat to be valid the cavcator musl havc a protcctablc inlcrcst legal or equitablc to be protcctcd by thc cavcat otherwisc the cavcat will bc invalid. See casc of Sentongo Produce and Coffee Farmers Ltd & Anor versus Rose Nakafuuma Muyiisa HCMC 690 of L999.

In the agreement of sale dated l3th Junc 2O14 the plaintiff was to pay balance of Shs.2,650,000/: not later than October 2O14. The 3.d defendant's caveat was lodged on 14th July 20 14.

In the document made at the Registrar's Office with the defendants they agreed caveat will be removed after balance paid and payments were to be completed by 2a-O2-20 15 the plaintiff testified that to date the 3.d defendant has not removed thc cavcat.

The purpose for the sale to the plaintiff of the rcgistrable intercst was for the administrators to the estate to get money to help them facilitate the process of distributing the estatc ol the latc Moscs Grace Kibuka. In the consent judgmcnt bctwcen the 1't and 2"4

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defendants who were administrators of the estate, para (c) it was stated that the plaintiff pays the last installment of UShs.400,0O0/: to the l"t and 2"d defendants as administrators of the estatc of the late Moses Grace Kibuka to clfect thc process of distribution of the estate.

I find that the 3.a defendant lodged a caveat on the land on 141h Ju'ly 2Ol4 before the period of payment due in October 2014 had elapsed, yet he was present at the time the agreement was made on I3rh June 2Ol4. The other defendants also cannot insist on maintaining of the caveat where the last installmcnt was paid. This also hindcrs the work of the administrators as stated in their consent Judgment as money was meant to facilitate them in processing the distribution ol the estate.

I thereby find that the 3.t defcndant was not justified to lodge <sup>a</sup> caveat on the land.

# 4. What remedies are available to the parties.

#### General damages

The plaintiff prayed lor general damages against the 3'a defendant for the ioss he caused to the plaintiffs when he unjustifiably lodged a caveat on the land. counsel submitted that court should be pleased to award Ug Shs.50,00O,00O/:.

S.42 of the Registration of Titles Act also relied on by counsel for the plaintiff states that "Any person lodging any caveat with the Registrar, under against bringing land under this Act or otherwise, without reasonable cause shall be liable to make to any person who may have sustained damage by the lodging of the caveat such compensation as the High Court dcems just.

In the case of Kampala District Land Board & George Mitala versus Venasion Babwegana Civil Appeal No. O2 of 2OO7 it was

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held that it is true that damages are the direct probable consequences of the act complained of. Such consequences may be a ioss of use, loss of profit, physical inconveniences, mental distress from and suffering.

In instant case even when the administrators had conscnted with the plaintiff, the 3ra defendant did not remove the caveat lodged Though the plaintiff was a kibanja holder and is in possession of the land. I find he was inconvcnienced as he could not get the registerable interest. In those circumstances I find that a sum of shs S,0OO,OOOis appropriate as general damages payable by the f,.d defendant.

In conclusion Judgment is entered in favour of the plaintiif with the following orders,

- a) The caveat lodged by the 3.a defendant Luwemba Godfrey on Block 230 plot 256 land at kijaguza Kakoge Nakasongola District be removed by the Commissioner land registration. - b) an order of specific performance is grantcd compelling the defendants including the administrators of the estate to effect transfer of title equivalent to 2.8 acres on land comprised in Buruli Block 230 plot 256 at Kijaguza Kakonge Nakasongola into the names of the plaintiff. - c) 3'a defendant to pay general damages of shs 5O00,000 to plaintil-f. - d) The 3.d to the 7th defendants to pay costs of this suit

AG JUDGE LAND DIVISION

| r | 2023 | |-----------------------|--------| | DATED AT KAMPALA THIS | DAY OF | | KANYAN<br>SUSAN | |