Nalwanga v Jomayi Property Consultants Limited & Another (Civil Suit 63 of 2019) [2024] UGHC 1186 (1 October 2024)

Full Case Text

## THE REPUBLIC OF UGANDA

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

#### **CIVIL SUIT NO. 63 OF 2019**

CAROLINE NALWANGA MAGAMBO....................................

## **VERSUS**

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## 1. JOMAYI PROPERTY CONSULTANTS LTD-2. JOSEPH YIGA MAGANDAZI

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## BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO ANTHONY OJOK

# **Tudgment**

#### Brief background: 15

The plaintiff brought this suit against the defendants jointly and/or severally claiming for specific performance of delivery of Certificates of title and physical possession of land comprised in Mawokota Block 31 Plots 1180 and 1181 at Bujuuko measuring approximately 13.0 and 13.1 decimals respectively, alternatively, damages in lieu of specific performance, compensatory damages, interest and costs of the suit.

It is the plaintiff's case that in August, 2015, she bought land from the 1st defendant at a consideration of UGX 20,000,000/ $=$ . The purchased land was described as plots 1180 and 1181 measuring approximately 13.0 and 13.1 decimals respectively according to the $1^{st}$ defendant's internal estate subdivisions.

That the $1^{st}$ defendant's official agents prepared a land sale agreement that the plaintiff signed on her part awaiting the final execution by the $2nd$ defendant as the Chief Executive Officer (CEO) of the 1st defendant. The plaintiff took possession and is using the land. To date, the 1st defendant has refused, failed and/or neglected to deliver the certificates of title to the plaintiff while the $2nd$ defendant refused to sign on the agreement and deliver a duly signed agreement to the plaintiff. Hence this suit.

## Representation:

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Counsel Kaddu Denis appeared for the plaintiff. The matter proceeded exparte against the defendants who despite being served did not attend court. The plaintiff filed written submissions.

## Issues for determination:

- 1. Whether the plaintiff is entitled to an order for Specific performance for delivery of certificates of title of land comprised in MAWOKOTA BLOCK 31 PLOTS 1180 and 1181 against the defendants. - 2. What remedies are available to the parties?

#### Resolution of issues:

Issue 1: Whether the plaintiff is entitled to an order for Specific performance for delivery of certificates of title of land comprised in MAWOKOTA BLOCK 31 PLOTS 15 1180 and 1181 against the defendants?

Counsel for the plaintiff submitted that the plaintiff in her testimony stated that on the 20th and 25th of August, 2015 she paid UGX 20,000,000/= to the 1st defendant as the purchase price for Plots 1180 and 1181 comprised in Mawokota Block 31 $20$ at Bujuuko measuring approximately 13.0 and 13.1 decimals respectively. A sale agreement was executed in that regard by the 1st defendant's official agents that the plaintiff signed on her part awaiting the final execution by the $2nd$ defendant as the Chief Executive Officer (CEO) of the 1st defendant. However, to date, the 1st defendant has refused, failed and/or ignored to deliver the certificates of title to her whilst the $2nd$ defendant has without any lawful excuse neglected and or refused to sign the agreement and deliver a duly signed agreement to the plaintiff.

Further, that the plaintiff executed her part and paid UGX 20,000,000/ $=$ as the purchase price for land the defendants described as Plots 1180 and 1181 Mawokota on Block 31 at Bujuuko which entitled her to have a duly signed agreement by the $2^{nd}$ defendant and the promised certificates of title. That there's no lawful or justifiable reason why the 2nd defendant has refused to sign the agreement and have the 1st defendant deliver the certificates of title as promised except if the intention was to fraudulently take the plaintiff's money with no consideration.

Counsel cited **Section 33** of the Contract Act 2010 which makes it an obligation for the parties to perform or offer to perform, their respective promises, unless the performance is dispensed with or excused under this Act or any other law. And,

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the case of Memer Engineering Supplies Uganda Limited v. Divine Light Finance **Limited (Civil Suit 762 of 2019) 2023,** where it was held that:

"That parties are bound by the terms of the contract that they execute." A breach therefore occurs where that which is complained of, is breach of duty arising out of the obligation undertaken under the contract."

Furthermore, that the defendants obtained UGX 20,000,000/ $=$ from the plaintiff under the pretext of selling to her the above described land and providing its certificates of title, a promise they have deliberately failed to honor. Justice in this case demands that the defendants fully discharge their contractual duties by delivering the certificates of title and a signed agreement, or in the alternative, reimburse the plaintiff the current market value of the property.

In conclusion, counsel prayed for an order for specific performance for delivery of the certificates of title of land comprised in Mawokota Block 31 Plots 1180 and 1181 against the defendants.

I have carefully considered the plaintiff's evidence, the exhibits tendered in court and her submissions together with the law and authorities cited therein to resolve this issue.

**Sections 101** and **102** of the Evidence Act provide that the burden of proof rests on 20 whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts to prove that those facts exist of who would fail if no evidence is adduced at all. Therefore, the plaintiff bears the burden to prove his or her case on the balance of probabilities.

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Section 103 of the Evidence Act is to the effect that the party who alleges the existence of a set of facts to prove such facts, it provides thus; the burden of proof as to any particular facts lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

In the case of **Uganda Petroleum Co. Ltd v. Kampala City Council, Civil Suit No. 250 of 2005,** it was held that; in civil cases the burden of proof lies on the party who alleges to prove his or her case on the balance of probabilities.

The plaintiff therefore bears the burden of proving the proposed issues on balance of probabilities.

The plaintiff proved to this court that she duly made the payment of the UGX 20,000,000 as evidenced by PEX 1 and PEX2 whereof a sale agreement PEX3 was executed in that regard and she was forwarded to the Physical Planning Authority of Mpigi by letter dated 29th July, 2019. The defendants have however, on their part failed to deliver the Certificates of title for the suit land comprised in Mawokota Block 31 Plots 1180 and 1181 at Bujuuko nor sign on the sale agreement on their part.

In the case of United Building Services LTD V. Yofesi t/a Quickset Builders & Co. Ltd. H. C. C. S No. 154 of 2005, it was held that; breach of agreement involves the $10$ failure to fulfil obligations imposed by the terms of the agreement.

The plaintiff in the case has prayed for specific performance which is provided for under **Section 64** of the Contracts Act which provides that;

"Where a party to a contract, is in breach, the other party may obtain an order of court requiring the party in breach to specifically perform his or *her promise under the contract.*"

- The defendants in the instant case even at the time this court visited the locus in $20$ quo had not complied with their end of the transaction. On the 6th September 2024 court when court conducted a locus in quo visit in this matter and met PW2 Mr. Mukuye Patrick the care taker of the plaintiff's land who confirmed that the plaintiff had quiet possession of the land except for the certificates of title. - $25$

I find that the plaintiff is entitled to an order for Specific performance for delivery of certificates of title of land comprised in Mawokota Block 31 Plots 1180 and 1181 against the defendants. This issue is hereby resolved in the affirmative.

#### Issue 2: What remedies are available to the parties? 30

Counsel for the plaintiff submitted that the plaintiff prayed for judgment against the defendant for an order for Specific performance by way of delivery of certificates of title of land comprised in Mawokota Block 31 Plots 1180 and 1181 at Bujuuko in the alternative, damages of UGX 100,000,000/ $=$ in lieu of specific performance in the event the defendants cannot specifically perform the contract.

That the right to specific performance is provided for under **Section 64 (1)** of the Contract Act 2010 which provides that;

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"Where a party to a contract, is in breach, the other party may obtain an order of court requiring the party in breach to specifically perform his or her promise under the contract."

Counsel prayed that this honorable court be pleased to grant the orders prayed for $\mathsf{S}$ above.

In regard to costs counsel for the plaintiff submitted that under **Section 27** of the Civil Procedure Act, the court is given the discretion to determine by whom costs of the proceedings should be paid and the amount of such costs. He quoted the case of Francis Butagira V. Deborah Namukasa [1992 – 1993] HCB 98, where the Supreme Court held that; the general rule is that costs shall follow the event and the successful party should not be deprived of them except for good cause. This

means that the successful party is entitled to costs unless he or she is guilty of misconduct or there is some other good cause for not awarding costs to him or her. As such the plaintiff is entitled to costs in this case. 15

Having resolved issue 1 in the affirmative, I find that the defendants according to **Section 33** of the Contract Act 2010 have an obligation to perform or offer to perform, their promise, unless the performance is dispensed with under any law. As per the case of **Hoskins v. Black, 190 Ky. 98, 226 S. W 384, 385** the plaintiff in this case is entitled to demand for the certificates of title for the defendants.

It is trite law that damages are the direct probable consequence of the act complained of. (See: Storms v. Hutchison (1905) A. C 515).

In the case of Haji Asuman Mutekanga v. Equator Growers (U) Ltd, S. C. C. A No. 7 of 1995, it was held that;

"With regard to proof, general damages in a breach of contract are what a $25$ court or jury may award when the court cannot point out any measure by which they are not to be assessed, except in the opinion and judgment of a reasonable man."

Counsel in the instant case prayed for UGX100,000,000/ $=$ as damages in lieu of specific performance. In the case of Mutange Cainan v. Afromix Construction Ltd 30 and Another, Civil Suit No. 118 of 2020, the court while handling a similar case where the property in issue had been purchased at UGX 25,500,000/ $=$ on the 17th day of January, 2015 and the plaintiff had been in occupation of the land; the court awarded a sum of UGX 20,000,000/ $=$ in damages. And an interest rate of 18% on the UGX 25,500,000/ $=$ which was the purchase price. 35

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In the instant case I find the prayer for UGX 100,000,000/= in lieu of specific performance excessive given the fact that the plaintiff has been in possession of the suit land from the date of purchase till this court conducted the visit in quo without any interferences. In the circumstances I find an award of UGX $15,000,000/$ = sufficient in this case.

The plaintiff also stated that the defendants should compensate her in the alternatively at UGX 100,000.000/ $=$ per plot which is equivalent to UGX $200,000,000/$ = as the current market value of the said pieces of land. However, I have found no justification or basis for this assessment since the plaintiff did not tender in court any valuation report or proof of the current market value for land in the same location as the suit land. As such, I find no basis on which to order this in the alternative of specific performance.

In regard to interest, **Section 26(2)** of the Civil Procedure Act provides for the same and I find that the plaintiff having come through on her end of the transaction is entitled to interest on the damages awarded at an interest of 20% per annum from the date of delivery of this judgment till payment in full given the fact the transaction before this court was commercial in nature.

The plaintiff in the instant case has discharged her duty in proving her case as against the defendants on a balance of probabilities. Judgment is hereby entered in favour of the plaintiff in the following terms;

- 1. An order for specific performance of delivery of the Certificates of title and physical possession of land comprised in Mawokota Block 31 Plots 1180 and 1181 at Bujuuko measuring approximately 13.0 and 13.1 decimals respectively together with a duly signed sale agreement within 30 days from delivery of this judgment is hereby issued. - 2. Damages of UGX 15,000,000/= at an interest rate of 20% per annum form the date of delivery of this judgment till payment in full. - 3. Costs of the suit.

I so order.

OYUKO ANTHONY OJOK **TUDGE** 01/10/2024

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