Kwehangana v Amara (Civil Appeal 15 of 2024) [2024] UGHC 918 (13 September 2024)

### THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT HOIMA

### CIVIL APPEAL NO. 015 OF 2024

### (Formerly MSD Civil Appeal No. 5 of 2017)

(Arising from Hoima Chief Magistrate's Court at Kagadi, C. S No.38 of 2016)

### KWEHANGANA DOMINIC :::::::::::::::::::::::::::::::::::

#### **VERSUS**

## AMARA PETER :::::::::::::::::::::::::::::::::::

[Appeal arising from the judgment and orders of H/W Simon Toroko, Magistrate Grade 1 Hoima Chief Magistrate's Court sitting at Kagadi in C. S No.038 of 2016 delivered on $14/2/2017$

### Before: Hon. Justice Byaruhanga Jesse Rugyema

## **IUDGMENT**

### **Background**

- The Appellant herein sued the Respondent in the lower court for breach of $[1]$ contract and recovery of $Ugx$ 4,000,000/= which he gave the Respondent in various instalments to process for him a certificate of title for his land of about 46 acres located at Mpeefu village, Nyamukara parish, Mpeefu sub county, Kagadi District. The Appellant contended that the Respondent did not process the title. - The Respondent denied the Appellant's claims and averred that though on $121$ 8/12/2014 he entered into a contract/agreement to process a land title for the Appellant, he executed the process of titling the Appellant's title and gave accountability of the Ugx 4,000,000/= received from the Appellant. He explained in his defence that in the process of titling the Appellant's land, it was found that the land was a Government gazetted land for Kagadi resettlement scheme. That therefore, the Respondent was ready to undertake to complete the work if the Appellant availed proof with the relevant documents that the Kagadi Resettlement scheme is lifted. He prayed for dismissal of the suit with costs.

- The trial Magistrate on his part, upon evaluation of the evidence that was $[3]$ adduced by the parties before him, found that it was evident that the parties entered into the contract of processing a title of the Appellant at a cost of **Ugx** $4,000,000/$ =. The land was surveyed but it turned out to be within the government scheme hence the halting of the titling process. He concluded that there was therefore no breach of the agreement since work was done to the extent of the land being declared to be under a government scheme. Judgment was accordingly entered in favour of the Respondent and dismissed the suit with each party to bear his costs. - The Appellant/plaintiff was dissatisfied with the judgment and orders of the $[4]$ trial Magistrate and lodged this appeal on the following grounds; - 1. The learned trial Magistrate erred in law and fact when he did not evaluate the evidence and then reached a wrong conclusion by finding that the defendant/Respondent was not liable. - 2. The learned trial Magistrate erred in law when he ignored the evidence of DW1 who represented himself as an expert in land conveyance thereby reaching a wrong conclusion. - 3. The learned trial Magistrate erred in law when he based on an accountability note solely on the evidence of the work done by the defendant/Respondent without considering the documents of payment for a service by the Appellant. - 4. The learned trial Magistrate erred in law and fact when he failed to frame issues to guide court in prosecuting the case more so when the parties were not represented thus reaching a wrong conclusion.

## Duty of the $1^{st}$ Appellate court

It is the duty of this court as a first appellate court in this appeal to re-evaluate $[5]$ the evidence on record and come to its own conclusion. In so doing, it should subject the evidence on record to a fresh and exhaustive scrutiny. It is trite that in arriving at its decision, a court is under duty to take into consideration the evidence as a whole and to evaluate all the material evidence on issues that have to be determined, see Banco Arabe Espanol Vs B. O. U, SCCA No.8 of 2021 and Fr. Narsensio Begumisa & 3 Ors Vs Eric Tiberaga, SCCA No.17 of 2000 [2004] KALR 236.

## **Counsel legal representation**

The Appellant was represented by Ms. Nabirye Gertrude of M/s Kasangaki & [6] Co. Advocates, Masindi while the Respondent was represented by Mr. Emmanuel Wosamwa of Ms. P. Wettaka Advocates, Kampala. Both counsel filed their respective submissions for consideration in the determination of this appeal.

## **Consideration of the Appeal**

This court considers resolving grounds 1 & 2 together since both revolve $[7]$ around how the trial Magistrate evaluated the evidence that was before him and grounds 3 & 4 separately as proposed by both counsel in their respective submissions.

Grounds 1 & 2:

- 1. The learned trial Magistrate erred in law and fact when he did not evaluate the evidence and then reached a wrong conclusion by finding that the defendant/Respondent was not liable. - 2. The learned trial Magistrate erred in law when he ignored the evidence of DW1 who represented himself as an expert in land conveyance thereby reaching a wrong conclusion. - Counsel for the Appellant submitted that the Respondent received Ugx $[8]$ $4,000,000/$ = from the Appellant to process a certificate of title and the Respondent failed to process the title. That the Respondent did not perform the contract at all and therefore ought to refund the money had and received for the processing of the title. That the Respondent (DW1) represented himself as an expert in land conveyance or title processing and convinced the Appellant that he would process for him a certificate of title for his land but did not process it. That he in the premises fraudulently breached his agreement with the Appellant. That therefore, had the trial Magistrate properly evaluated all the evidence on record, he would have arrived at a different decision that there was breach of contract and the Respondent ought to have refunded the money had and received.

- The Respondent's counsel on the other hand submitted that the Respondent $[9]$ was contracted by the Appellant to process for him the title. The Respondent instructed Prime Surveyors and Digital Mapping Consultants who assigned him a one **Kyamanywa Peter** (DW2) who surveyed the land. The file was forwarded to the Cartographer Fort portal where the land was plotted by a one Agaba John. That after plotting, the cartographers of Kabarole and Entebbe revealed the suit land as being in a Government scheme and the file could not proceed for issuance of the deed plan. He concluded that the Respondent did not represent himself as an expert in land conveyance. That he undertook the process of securing the title for the Appellant which process was only stopped because the land was falling in a government scheme. He contended that the learned trial Magistrate therefore, properly evaluated the evidence on record and arrived at the correct conclusion that the Respondent was not liable. - $1\degree$ This court finds that it is not in dispute that the Respondent on $8/12/2014$ entered into a contract with the Appellant for the Respondent to process a certificate of title of the Appellant's land at a cost of $Ugx$ 5,500,000/= (P. Exh.1) and was paid a deposit of $Ugx 4,000,000/$ =. It is also not in dispute that the Respondent undertook the process of surveying and titling the Appellant's land but did not conclude the process because the land in question was found to fall in the Government gazetted land scheme project (Kagadi resettlement scheme) and the Appellant was informed of the same. - [11] In this case, the Appellant did not adduce any evidence to rebut the Respondents defence of impossibility of performance and or frustration of **purpose** of the agreement between him and the Respondent. The Respondent adduced evidence that during the process of surveying or titling the land of the Appellant, it was found that the land fell in a Government gazetted land scheme project. Impossibility of performance and or frustration was amply implied in the Respondent's pleadings. - [12] The defence of impossibility of performance and or frustration of a contract is provided for under S.66(1) and (2) of the Contracts Act, 2010 thus;

"66. Discharge by frustration

(1) Where a contract becomes impossible to perform or is frustrated and where a party cannot show that the other party assumed the risk of impossibility, the parties to the

contract shall be discharged from further performance of the contract.

- (2) Any sum paid or payable to a party under a contract before the time the parties are discharged under subsection $(1)$ shall in the case of the sum paid, be recoverable from the other party for his or her use and in the case of any sum payable, cease to be payable. - (3) Where a party to whom any sum was paid or was payable under subsection (2), incurred expenses before the time of discharge in or for purpose of, the performance of a contract, the court may, where it considers it just to do so, having regard to all the circumstances of the case, allow the party to retain or, as the case may be, recover the whole or any part of the sums paid or payable which shall not exceed the expenses incurred." - [13] In Davis Contractors Ltd Vs Hare Urban District Council [1956] 1 All ER 145 **at 166.** frustration was defined thus:

"Frustration occurs whenever the law recognizes that without default on either party, a contractual obligation has become incapable of being performed because the circumstances in which the performance is called for would render it a thing radically different from that which was undertaken by the contract."

As was held in Revolutionary Ads & Designs Ltd Vs Board of Trustees of Nakivubo Stadium C. A. C. A No.131 of 2013, citing the above Davis **Contractors Ltd** authority, whereas the onus of proving frustration is on the party alleging it, once it is proved, it is the party denying it to prove default on the other party, see also J. K Patel Vs Spear Motors Ltd, H. C. C. A No. 4 of 1991.

[14] In the instant case, the Appellant clearly did not contest the fact that the land for titling which was the subject of the contract was found to fall in government gazetted scheme land of which issuance of deed plans to individuals was prohibited. The discovery that the land fell in Government gazetted land is evidence that the Respondent undertook the work until frustration set in. In the premises, I would accordingly find that the defence of frustration raised by the Respondent stood unchallenged.

[15] In **Chandler Vs Webster** [1904] 1KB 493, Lord Russel made a proposition that: "....in case of frustration loss lies where it falls or where a contract is discharged by reason of some supervening impossibility of performance, payments previously made and legal rights previously accrued according to the terms of the contract, will not be disturbed, but the parties would be excused from further liability to perform the contract. There are situations in which the party who paid the money may be able to recover his money."

In **Krell Vs Henry [1903] 1 KB 740**, the Appellant appealed from the dismissal of his suit for enforcement of a contract to rent a room. The trial court had held that the foundation of the contract was that the Defendant wanted to watch the coronation process which had been fixed for a particular date but $\bigcirc$ the coronation was postponed and the defendant did not pay for the room. The defendant had paid a deposit but did not take up the room. The judge held that the plaintiff was not entitled to recover the balance of the rent fixed by the contract.

- [16] In the instant case, the Respondent adduced evidence accounting for the Ugx $4,000,000/$ = he received from the Appellant to process his certificate of title until when the process was halted upon discovering that the Appellant's land was in a title processing prohibited area, Government land project for Kagadi resettlement scheme. The accountability was as follows; - a) Payment to the surveyor for surveying the land by prime Surveyors and digital consultants - $(2,500,000/=)$ . This was confirmed by the surveyor, Kyamanywa Peter (DW2). - b) Instructions to survey given to Musinguzi Denis (DSS) Kibaale $(100,000/=)$ , and cartographers for plotting of the land at Kibaale, Fort portal and Entebbe offices: $(50,000/=$ for Tinkasiimire, $60,000/=$ for Agaba John and $100,000/$ = for Kakayi Mary) respectively. - c) Porter's payments to Akugizibwe Peter (DW4) and Alinaitwe Ishamael (DW3) $(150,000/=)$ . - d) The Respondent's facilitation $(500,000/=)$ . - [17] The above accountability of the $Ugx$ 4,000,000/= the Respondent received from the Appellant as adduced in evidence was not challenged at all by the

Appellant. The trial Magistrate believed the Respondent's accountabilities. On my part, considering the circumstances of this case where the land in question was approximately 18.83 ha. (46.53 acres), I find the total sum of the expenditure as per the accountabilities to had been reasonable in respect of the overhead expenses and in respect of the work and services by the Respondent. I in the premises find no reason to fault the trial Magistrate by disturbing his findings that the funds were spent on the Appellant's title processing exercise.

- $[18]$ Frustration covers situations fundamentally beyond the parties' contemplation and control at the time of contracting and results in automatic termination of the contract, Krell Vs Henry (supra). Loss lies where it falls unless it would be unjust for one party to retain benefit of the other party's performance, Fibrosa Spolka Akcyjna Vs Fairbairn Lawson Combe Barbour Ltd [1942] 2 All ER 122. - [19] The Respondent explained in evidence that titling of the land is a process. That in this case, the Appellant's land was surveyed and accordingly plotted and adduced evidence of the Job Record Jacket (JRJ) in respect of the Appellant's land **(D. Exh.1)** which show that the process of titling the land was done but got halted at **deed print stage** upon discovery that the land fell into a Government scheme. It cannot in the circumstances of this case be said that the Respondent will be unjustly enriched by failing to refund the Appellant's Ugx 4,000,000/= he had deposited with the Respondent for the work and services to be rendered in the titling of the Appellant's title. The money was accordingly spent in the process of titling the Appellant's title up to the stage of deed printing. - [20] As a result, of the foregoing and reasons given, I find grounds $1 & 2$ devoid of any merit and they accordingly fail.

### Ground 3 & 4:

- 3. The learned trial Magistrate erred in law when he based on an accountability note solely on the evidence of the work done by the Defendant/Respondent without considering the documents of payments for service by the Appellant. - 4. The learned trial Magistrate erred in law and fact when he failed to frame issues to guide court in prosecuting the case more so when the

# parties were not represented thus reaching a wrong conclusion.

- [21] I find the arguments raised by counsel for the Appellant regarding the Respondent's alleged omissions of the common practice and procedures for registration of titles and the receipts of payments of tax, registration fees, land offer, land demarcation fees, fees for forms, minutes of area land committee fees and Report of the area land committee which proceed the instructions to survey are matters that were never raised before the trial Magistrate and were therefore never canvassed by the trial court. They cannot be raised for reviewing by this court, Monica Birugi & 3 Ors Vs Kusemererwa Evace & 2 Ors, HCCA No.74 of 2014. The burden of proof was on the Appellant to prove his case on the balance of probabilities by adducing evidence before the trial court of the flaws in the process of registration of land. - [22] It is not uncommon for aspiring applicants for registration of their land to first carryout survey of the land for purposes of ascertaining its acreage and sitting/location before embarking on the step of applying for its registration. Counsel for the Appellant has not demonstrated to court that it is for the above alleged omissions by the Respondent that the land subject of the contract had to be found sitting in a gazetted land for Kagadi Resettlement Scheme. Conversely, it can instead be stated that had the Appellant first followed the procedure of application for registration of the land and made payments of all the relevant fees without first ascertaining the acreage and status or sitting/location of the land, he would have lost money in form of the above expenditure upon discovering that the land fell into Kagadi Government Resettlement Scheme. - In conclusion, I find that the respondent as per the contract with the appellant $\lceil 2 \rceil$ (P. Exh.1) did not enter into the contract with the Appellant as an expert in land conveyance, and the Appellant did not even plead so. What is apparent is that the Respondent did not conclude the work and services he contracted or offered to do due to the discovery that the land was in a Government gazetted scheme land which rendered the contract impossible to perform to its logical conclusion. - [24] The trial Magistrate properly framed the issues for determination out of evidence as adduced by the parties as follows:

- a) Whether the plaintiff had a cause of action - b) Whether the contract was breached and - c) Whether the defendant was liable. - [25] The trial Magistrate resolved the issues accordingly i.e, that there was a contract between the parties for the Respondent to process the title of the land of the Appellant and that the contract could not be conclusively performed because the land fell in Government land. The trial Magistrate concluded with the following words;

"Court has also established that the defendant [Respondent] had no interest to deprive the plaintiff [Appellant] of his money. The evidence reveals that an activity/the process of securing the title started and reached some level and it stopped because the land was falling in a government scheme."

[26] The appeal is in the premises found to have no merit. It is accordingly $\sim$ dismissed with costs to the Respondent.

Dated this $\sqrt{3}$ day of September, 2024.

Byaruhanga Jesse Rugyema **IUDGE.**