Oola v Okello (Civil Suit 8 of 2017) [2024] UGHC 900 (1 October 2024)

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT GULU

## CIVIL SUIT NO. 08 OF 2017

<table>

OOLA EUGENE..................................

### **VERSUS**

OKELLO WINYO alias CELESTINO.................................... 15

## BEFORE: HON. MR. JUSTICE GEORGE OKELLO

#### **JUDGMENT**

## Introduction

$\mathsf{S}$

25 This dispute is packaged and presented in a fairly straight forward manner but on a deeper scrutiny, it is not what it purports. The contractual relation between the parties was normal but the relationship developed cracks before the full benefits were realized by one side. The parties had entered into a sale contract by an agreement of 23 June, 2007. The Plaintiff 30 purchased from the Defendant some land in Pece Pawel P' Odyek, Pece Division, Gulu Municipality measuring 35x35 metres at a price of Ugx 16,500,000. Two months after the ink of the contract had just dried, the Plaintiff commenced construction of a permanent residential building on the land, popularly known in the construction industry as Bungalow. He 35 roofed the house with clay tiles. However, the house did not reach the finishing stage. It was not plastered either and no doors or windows were

Hhradun

$\mathbf{1}$

fixed. The project suffered intermittent interruptions by court orders as $\mathsf{S}$ third party claimants appeared claiming the very land sold. Two individuals sued the Defendant and the Plaintiff's sister in the Chief Magistrates Court of Gulu. Those Plaintiffs lost. On appeal, the High Court (Mutonyi, J) decided in their favour. Those Plaintiffs are not party to the present action. Having lost in the High Court, the present Defendant and 10 the Plaintiff's sister lodged an appeal. The same is pending determination in the Court of Appeal of Uganda. The instant suit is anchored in some pronouncements which this court made against the Defendant. This Court held that the present Plaintiff bought the portion of land from the Defendant who had no title to pass. The Court observed that the Plaintiff 15 was at liberty to seek redress. This emboldened him to file this suit. Following the High Court decree, the Plaintiff lost the land and the Bungalow. It was demolished by court bailiffs. Although the Plaintiff was not a party to that suit, it was claimed his sister was sued in his place. 20 The Defendant and the Plaintiff's sister were ordered to vacate the land. The claimants were declared to be the rightful and absolute owners and with the right to take possession.

While commencing the instant action, the Plaintiff filed the first plaint on 25 11 May, 2017. He indicated he had drawn it himself. At the time, he indicated he was anchoring his action in breach of contract, and fraud. He contended that the Defendant sold the land of another. He also claimed in

HaxaQue.

$\overline{2}$

- trespass. However, on obtaining services of counsel, the Plaintiff amended $\mathsf{S}$ the plaint and lodged one on 18 August, 2021. No issue has been taken with the amendment. The first trial Judge directed the parties to file scheduling notes. I shall, in this determination proceed on the basis of the amended Plaint in deciding the issues. See: Dhanji Ramji Vs, Malde - 10 **Timber Co.** [1970] 1 E. A 422 (CAN). I will, however, refer to the original plaint, where necessary, especially to clearly understand the real grievance of the Plaintiff with respect to the alleged contract breach. This is because the amended plaint that ought to have been better crafted is a bit vague on the aspect of breach of contract. It has been held that amendment should not be treated as if nothing previously existed as the original $15$ pleading may be referred to in exceptional circumstances. See: **Eastern** Radio Service Vs. R. J. Patel (trading as Tiny Tots) [1962] E. A 818; Dhanji Ramji Vs, Malde Timber Co. [1970] 1 E. A 422 (CAN)(Supra). - In the new plaint, the suit is stated as being for recovery of the purchase 20 price, special, general, and exemplary damages, and costs. There is surprisingly no express mention of contract breach or a declaration in that regard yet recovery of the purchase price is being sought. That said, from the general body of the amended plaint, it seems the Plaintiff takes issue with the Defendant's non-fulfilment of his part of the bargain regarding 25 the warranty of title to the property sold. It seems the Defendant had also warranted that there would be no third party claims. Thus although poorly

HAADam

$\mathfrak{Z}$

$\mathsf{S}$ drawn, when paragraph 8 of the amended plaint is read with paragraph 3 of the original plaint, the aspects of contract breach become more apparent. Paragraph 8 (c) of the amended plaint is couched thus "the defendant sold the suit land which was not his to the plaintiff". In the circumstances, I proceed to treat the alleged contract breach as one of the 10 causes of action alongside fraud. The drafting issues aside, I note that a history of the contractual relation between the parties, which is not contested, is well stated in the amended plaint.

The Plaintiff, therefore, averred that, on buying land, he constructed a 15 house. The house was demolished following a successful suit against the Defendant by third party claimants. The Plaintiff says he attempted negotiation with the Defendant for alternative land but to no avail. The Plaintiff pleads fraud against the Defendant. He seeks for special damages of shs. 167,718,500 being the cost of, inter alia, material, labour and 20 transport spent on building the house. He also prays for refund of shs. $16,500,000$ being the money he paid to purchase the land.

When the Defendant appeared unrepresented before court on 13 November, 2023, he conceded he had not lodged written statement of defence. He informed court he and the Plaintiff had entered into a sale contract. He alluded to the adverse litigation which went against him and the Plaintiff's sister. He also stated that he and the Plaintiff's sister

Hudolew.

$\overline{4}$

appealed to the Court of Appeal. He claims it is the Respondents in that $\mathsf{S}$ appeal who should restore the Plaintiff to the position before the house was demolished. Regarding his non-filing of the written statement of defence, the Defendant explained that he had not filed one because he thinks if he wins on appeal, all that the Plaintiff lost will be restored. He also informed court that he was advised by his counsel who conducts the 10 appeal (Mr. SD Donge Opar) that he lacks credible defence to the present suit.

Cognizant of the Defendant's non-derogable right to be heard, and having appeared by himself, this court, with the concession of learned counsel for 15 the Plaintiff, Mr. Okot Edward David, granted leave to the Defendant to file defence out of time, which he eventually did on 06 March, 2024. The written statement of defence shows that it was drawn and filed by the Defendant in person although he had intimated that Mr. Donge would draft it. 20

In the pleading, the Defendant denies all allegations contained in the amended plaint. He avers that he would raise a preliminary objection that the suit is premature before this court given his pending appeal in the Court of Appeal. He further avers that the Plaintiff has sued a wrong party because the demolition of the house was by court bailiffs who acted on instruction of the Decree holders. In the alternative, the Defendant

Hansduw.

$5$ contends that he owns the land he sold to the plaintiff. He adds that because the Plaintiff took possession of the land and commenced construction, the Plaintiff cannot claim back the consideration paid especially after occupying the property for close to 10 years. The Defendant also avers that he was sued together with the Plaintiff's sister given the Plaintiff's delegated power to her. He contends that whereas he and the 10 Plaintiff's sister were successful in the Magistrate court, the claimants successfully appealed to this Court. According to the Defendant, he is vigilantly pursuing Civil Appeal No. 0029 of 2017 at the Court of Appeal and the appeal has since been conferenced. He makes reference to a 15 temporary injunction Order issued by the Deputy Registrar High Court in July 2022 stopping the claimants (Respondents in the Appeal) from interfering with the disputed land in any manner. The Defendant contends that the present suit does not disclose a cause of action against him and ought to be dismissed with costs. He also contends that his pending appeal 20 is neither vexatious nor frivolous and has high chances of success. He concludes that the Plaintiff should wait for the outcome of the appeal before he can take any further actions as the present suit may amount to duplication of suits. To these averments, there is interestingly no reply by the Plaintiff who appears by counsel.

HLAD Du.

#### $5$ Scheduling conference

When the suit came up for scheduling conference on 19 April, 2024, the Defendant still appeared *pro se*. Learned Counsel for the Plaintiff proposed three issues with the Defendant's concurrence. They are:

- 1. *Whether the Defendant had right and power to sell land situate at* Pawel P' Odyek, Pece Division, Gulu City, measuring 35x35 metres to the Plaintiff? - *2. Whether the sale of the land described in (1) above was valid?* - *3. What remedies are available to the parties?*

15 This court adopted the issues and directed that witnesses testify *viva voce*. I adopted the procedure to accommodate the Defendant and relieve him of the burden of filing witness statement(s) as a lay litigant. He had very much struggled and delayed to timely file the written statement of defence after even after repeated adjournments. During the scheduling conference,

20 the parties agreed on all documents, which court marked as the Plaintiff's exhibits.

## **Hearings**

The Plaintiff testified as the sole witness. The Defendant was given an opportunity to cross-examine the Plaintiff but did not. The Plaintiff then 25 closed his case. When his turn for opening the defence came, the Defendant did not accept to testify but generally told court, not under oath,

HEADOW.

$\overline{7}$

that he sold land to the Plaintiff and does not know any other thing. He $\mathsf{S}$ also stated that he had nothing to say in his defence. He added that he has since appealed the decision of this court in the Court of Appeal. The Plaintiff referred to Civil Appeal No. 29 of 2017: Okello Winyo & Ajok Lucy Vs. Okwonga Joseph and Acaye Geoffrey.

$10$

Given his firm position, this Court closed the Defence, and gave timelines for the filing of written submissions. The Plaintiff's submission was filed timeously on 20 May, 2024. The Defendant was to file his and serve by 20 June, 2024. He has not filed one to-date.

# **Submissions**

Learned counsel addressed court on the issues framed. I have considered his arguments. However, on a deeper consideration of the pleadings and the evidence, I decided to expand the issues to cover the points of law intimated and raised by the Defendant in his pleading although not argued before me. Order 15 rule 5 (1) of the CPR as applied in the case of **Okwonga** George and another Vs. Okello James Harrison, Misc. Application No. 132 of 2021 support the view I am taking. The additional issues arise from the written statement of defence. They are important matters of law which court must resolve one way or the other. I think the Defendant did not appreciate the need to argue the matters of law because of ignorance of procedure in civil litigation. Being substantial points, the parties are

Hhooding

- $\mathsf{S}$ entitled to an adjudication on the points of law. I do not take the points to have been abandoned because the defendant is a lay litigant. It is trite law that as far as possible, lay litigants who are unfamiliar with court process ought to be accommodated and assisted to present their case in deserving circumstances through relaxing the rules of procedure. See: Odoch Jenasio Vs. Okot Ceasar, HC. Civil Appeal No. 008 of 2018 (Mubiru, 10 - **J.).** In so doing, a court should of course be cautious not to prejudice the opposite party and not to descend into the arena of litigation. In Mulindwa George William Vs. Kisubika Joseph, Civil Appeal No. 12 of 2014, the Supreme Court stated:

"We are also mindful of the fact that the Appellant is a lay person and as such, he is not expected to comprehend and strictly follow the complex rules of civil litigation. Nonetheless, we believe that there must be a limit beyond which the courts can bend backwards to accommodate the unrepresented litigant without compromising the rights of the opposite party."

The Supreme Court in the cited case declined to accommodate the lay litigant after assessing his conduct in the particular litigation. In this matter, I see no reason not to accommodate the Defendant and resolve the points of law as I shall set out. In any case, the Defendant has complied with the legal requirement that a party who desires to have any point of

Hussolu.

law disposed of before the trial should raise it in his pleading especially $\mathsf{S}$ where it will substantially dispose of the matter although a point of law may also be argued whether pleaded or not. See: **Saggu Vs. Roadmaster** Cycles (U) Ltd [2002] 1 E. A 258 (CAU). I should, however, stress that, had the Defendant been represented by counsel, I would have deemed the 10 points of law to have been abandoned. As I resolve the points of law alongside other issues, I am mindful that I should not compromise the rights of the Plaintiff since no arguments have been received from the parties. This was a perfect case for this court to summon both parties to address the points of law but I have not taken that path because I see no 15 prejudice by not recalling the parties to argue the points, in light of what the Defendant told this court when asked to defend himself. I will thus resolve the points of law to give my holistic decision on the case presented.

Having thus expanded the issues, the following issues shall be resolved;

- 1. *Whether the suit is premature before the High Court as against the* Defendant? - 2. *Whether the Plaintiff sued a wrong party?* - 3. *Whether the Plaint discloses a cause of action against the Defendant?* - 25

4. Whether the hearing of the suit should be stayed pending the conclusion of Civil Appeal No. 029 of 2017 in the Court of Appeal?

Hassan. - 5. Whether the Defendant had right and power to sell land situate at Pawel P' Odyek, Pece Division, Gulu City, measuring 35x35 metres to the Plaintiff? - 6. *Whether there was breach of contract warranty by the Defendant?* - 7. Whether the Defendant committed fraud towards the Plaintiff? - *8. Whether the sale of the land was valid?* - 9. What remedies are available to the parties?

### Resolution of the issues

I will combine some issues.

Issues 1 & 4: premature suit and whether court should stay the 15 proceedings pending the court of appeal determination of the appeal.

The Defendant averred that the instant suit is premature since there is a 20 pending appeal in the Court of Appeal in which the Plaintiff's sister is a co-appellant, against the Respondents there. To resolve the points of law, I will briefly refer to the substance of the dispute between the contestants before the Court of Appeal without prejudice to the merits or otherwise thereof. The history giving rise to the pending matter is contained in the 25 Judgment of my sister Judge which was admitted in evidence as PEX7. Although not dated, the Memorandum of Appeal shows that the judgment was delivered on 12 November, 2014. It was a Judgment in an appeal from

Hussem

$10$

$5$ the lower court decree. The lower court presided by His Worship Barigye Said MGI (as he then was) had given Judgment in Civil Suit No. 020 of 2008. He delivered it on 17 January 2014. He decided against Okwonga Joseph and Acaye Geoffrey who had sued Okello Winyo and Ajok Lucy. The suit related to a piece of land measuring $100 \times 100$ metres. It is 10 apparent the 35x35 metres which the present Plaintiff bought is part of the contested 100x100 metres. The issues before the learned trial Magistrate related to whether the Plaintiffs were the lawful owners; whether Ajok Lucy (sister of the present Plaintiff) was lawfully sued, and the remedies available to the parties. The learned Magistrate did not determine the issues framed but took up a point of law raised at the stage 15 of defence submission that the suit was barred by the doctrine of res judicata. As noted, that decision was overturned by my sister Judge. This Court then proceeded to determine the ownership issue finally, invoking its powers under section 80 (1) (a) of the Civil Procedure Act. This Court held that Okello Winyo trespassed on the land and purported to pass part 20 thereof to the brother of Ajok Lucy (the present Plaintiff) when he had no right whatsoever. Okello Winyo was thus held to be a land grabber and the present Plaintiff was said to be at liberty to seek redress against him. The Appellants to this Court were declared to be the rightful and absolute land 25 owners with the right to take possession. Okello Winyo and Ajok Lucy were ordered to vacate the land. Demolition of the structures on the land happened in the execution process by court bailiffs. The Bangalow was

Hhsodin.

$5$ razed down. It is apparent some structures of the present Defendant also suffered demolition. Pictures of the demolished Bungalow is contained in PEX9, and a warrant of vacant possession dated 28 July, 2016 is PEX 8. The pictures of the Bungalow roofed with clay tiles before demolition is PEX4. It is clear the house was yet to be plastered and doors and windows $10$ were yet to be fixed.

In the pending appeal, the Appellants (Okello Winyo and Ajok Lucy) seek to assail the Judgment of this court on four grounds which I am summarizing, namely; the court erred in law and fact in deciding that the matter was not res judicata; The court erred in law in refusing to refer the 15 matter for retrial; the court erred in law in failing to properly evaluate the evidence; the court erred in law in holding that the 2<sup>nd</sup> Appellant (Ajok Lucy) was rightly sued when she was not the owner of the suit land.

Turning to the issue at hand, the objection pleaded is that the instant suit 20 is premature because of the pending appeal. I note that the present suit seeks for recovery of money because of failed consideration. The land the Plaintiff purchased was subject of warranties. That is, warranty as to title, and absence of third party claims. The question thus is whether the 25 Defendant breached the warranties. These matters are not obviously involved in the pending appeal. The plaintiff also seeks to recover expenses incurred in constructing the Bungalow. I think the Plaintiff is treating their

Hadodus.

contract as having been breached by the Defendant since the Defendant $\mathsf{S}$ did not deliver on the warranty. I am thus of the opinion that the matters before me are not capable of being decided in the pending appeal. I also do not see any avenue for the court of appeal restoring the present defendant to the status quo ante, given the prayers being sought in that appeal, if 10 the court were to find for the appellants. Furthermore, the distinct nature of the parties and the actions here, and in the Appeal, makes it inconceivable that a successful appeal would automatically yield the reliefs being pursued in the present action. The issue of contract breach between the present parties are not capable of being resolved within the context of 15 the pending appeal especially when the present Plaintiff never sued the Respondents in that appeal and is also not an appellant before that court. Moreover, suing his sister is being contested in that appeal. I am thus of the firm view that adjudicating the present dispute will enable the parties to know their respective legal positions and adjust accordingly in relation to the outcome of the pending appeal, or a third appeal to the Supreme 20 court, if at all. That Appeal seems to me to concern the present Defendant more than the Plaintiff or his sister. Consequently, whereas this court has inherent powers to stay proceedings before it, under section 98 of the Civil Procedure Act Cap 282, to do justice, and prevent abuse of its process, I 25 would, in the circumstances, decline to invoke the inherent powers of court. A stay of the proceedings would not, in the circumstances, achieve the ends of justice. This court should not be seen to make orders that

Huroow.

would cause injury to the Plaintiff as I think that is what the Defendant $\mathsf{S}$ purports to achieve. I, therefore, hold that the present suit is not premature and find no good reason to stay the proceedings.

## Issues 2 and 3: Proper party and cause of action.

In his written statement of defence, the Defendant avers that it is the court 10 bailiffs instructed by the Respondents in the Civil Appeal No. No. 29 of 2017 who demolished the Plaintiff's house, and so, the defendant is wrongly sued in the current action. The other averment is that no cause of action is disclosed against the Defendant.

To begin with, the instant action is not challenging the action of court bailiffs but principally seeks redress for the alleged contract breach. Thus recovery of consideration and expenses for demolition appear to flow from the alleged breach. In the circumstances, the claim that it is the Bailiffs of Court who ought to have been sued, is not correct. I find that the Defendant is properly impleaded in this action.

Regarding the alleged lack of cause of action, a cause of action is a bundle of facts which constitute the claim or right upon which the Plaintiff fixes some liability on the Defendant. It is for the court to declare the law arising out of those facts. In this case, I have perused the amended plaint and find that the same is compliant with the law as contained in Order 7 rule $1(e)$

# Hurodin.

- of the CPR, and as expounded in Auto Garage & another Vs. Motokov $\mathsf{S}$ (No.3) [1971] EA 314. The Plaintiff has thus clearly pleaded that he entered into a sale contract with the Defendant but the land he bought turned out to be in dispute, thus resulting in a suit against the Defendant which he lost. Consequently, the Plaintiff lost the land, the house, the 10 purchase money, and the money spent on the project. The Plaintiff also pleaded that he has suffered other damages for which he seeks to hold the Defendant liable. In the circumstances, I find that the amended plaint sufficiently discloses a cause of action against the Defendant. - 15 Issues 5 & 8: Right and power to sell the land & validity of the sale The Plaintiff's questioning of the Defendant's right and power to sell the land appears to rest on the Judgment of this Court (PEX7). In my view, given that that Judgment is on appeal which is pending determination, it is not proper to discuss the issue of the defendant's right to sell the disputed land. After all, the Plaintiff is now treating the sale as having 20 failed and does not want the land anymore but what he allegedly lost. In my respectful view, the holding of this court which put the Defendant's right and power to sell in doubt, cannot be the basis for the averment that, as at the date of executing their agreement on 23 June, 2007, the 25 Defendant lacked the power to sell, and that the sale was not valid. This is because the Defendant's power to sell, at the time, was not contested. It has not been argued anywhere that the essentials of a valid contract was

Haddau.

missing at the time of the parties' transaction. I think my non-resolution $\mathsf{S}$ of issue 5 and 8 above, should not mean the adjudication of this dispute is left in abeyance. The most critical aspect of the dispute, as I see it, is the representation and the warranty the Defendant is alleged to have made to the Plaintiff in their agreement, which I consider next. In the premises, 10 issues 5 and 8 regarding the power to sell, and the validity of sale, are not capable of resolving the real controversy in the present suit. I, therefore, find them irrelevant and decline to resolve it.

## Issue 6: Whether the Defendant breached the warranties

15 It is not contested that warranties were made by the Defendant. In their Sale Agreement (PEX1), the Defendant as the vendor, represented that he had power and authority to sell the land. This is stated in clauses (a) and (b) of the Sale Agreement. Therein, it was stated that the vendor is the lawful owner of a piece of land measuring 35x35 metres which he was 20 desirous of selling to the Plaintiff. The warranty is encapsulated in clause (d) of the Agreement, thus:

"The vendor or any third party shall have no legal right/claim over the land in (sic) completion of the payment by the purchaser to the vendor."

Hatoan.

$\mathsf{S}$ Relatedly, in clause (f) of the Agreement, the parties agreed that:

*"The vendor shall relinquish his powers and interests of the said land (sic)* to the purchaser."

10 My construction of clause (d) of the Sale Agreement, its imperfections aside, is that, the vendor represented and warranted that neither he nor any third party would make any claim to the property once the agreed consideration was fully paid. The parties thus appear to suggest in clause (d) that, any third party was barred from claiming the land. With respect, 15 I think this was going overboard, because, in so far as the clause purported to oust third party rights to access court, the clause is illegal, null and void

for being contrary to public policy. This conclusion on the clause is supported by section 22 of the Contracts Act Cap 284, and the decision of this court in **Odida Charles Vs. Omaya Patrick & 5 others, H. C Misc.** 20 Application No. 03 of 2023.

That said, clause (d) of the Sale Agreement can, however, still pass for a warranty clause albeit the poor drafting. Properly construed, I find that the Defendant warranted good title to the land. He also warranted the absence of third party claims to that land. Therefore, when third party claimants sued the Defendant and the Plaintiff's sister (Lucy Ajok) vide Civil Suit No. 020 of 2008, challenging the Defendant's ownership, the

Hutoem

- $\mathsf{S}$ defendant should be treated as having breached the warranty especially as regards the absence of third party claims. The breach is even more pronounced as the Defendant in his testimony in the civil suit before the Magistrate Court, conceded that, the land was hitherto the subject of disputes between himself and a one Okot Dairo from as early as the year - 10 1991. It is also undisputed that the persons who secured the eviction order and the demolition, claim through the said Okot Dairo. The Defendant has at all times, therefore, known of the potential third party claims to the land but still went ahead to sell it any way. I do not, therefore, think it was wise to sell land which is subject of dispute whether the dispute was baseless - 15 or not, provided the dispute was not fully resolved. I, therefore, hold that the Defendant breached the contract warranty towards the Plaintiff. See: Nakawa Trading Co Ltd. Vs. Coffee Marketing Board, HCCS No. 137 of 1991; Ronald Kasibante Vs. Shell (U) Ltd, HCCS No. 542 of 2006.

#### Issue 7: was there fraud? 20

Fraud was defined by the Supreme Court in Hilda Wilson Namusoke & 3 others Vs. Owalla's Home Investment Trust (E. A Ltd) & Commissioner Land Registration, SCCA No. 15 of 2017. The court adopted the definition in Kerr on the law of fraud and mistake, $5^{th}$ Ed. page1 thus:

Hurodaw.

$5$ "Fraud includes 'all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust or confidence justly reposed, and are injurious to another, or by which an undue or unconscientious advantage is taken of another. All surprise, trick, cunning, dissembling and other unfair way that is used to cheat any one."

$10$

In well-kwon case of Fredrick J. K Zaabwe Vs. Orient Bank Ltd & 5 Others, Civil Appeal No. 04 of 2006, the Supreme Court at p.26, adopted the definition of fraud as per *Black's Law Dictionary* 6<sup>th</sup> *Ed. p.660* where fraud is defined as 'an intentional pervasion of truth for the purpose

- of inducing another in reliance upon it to part with some valuable thing 15 belonging to him or to surrender a legal right. A false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations, or by concealment of that which deceives and is intended to deceive another so that he shall act upon it to his legal injury. Anything 20 calculated to deceive, whether by a single act or combination, or by suppression of truth, or suggestion of what is false, whether it is by direct falsehood or innuendo by speech or silence, word of mouth, or look or *gesture....* A *generic term, embracing all multifarious means which human* ingenuity can devise, and which are resorted to by one individual to get 25 advantage over another by false suggestions or by suppression of truth, and - includes all surprise, trick, cunning, dissembling, and any unfair way by *which another is cheated. Bad faith and fraud are synonymous, and also*

Hurdew. synonymous are dishonesty, infidelity, faithlessness, perfidy, unfairness, $\mathsf{S}$ etc."

The law is that fraud must be pleaded and strictly proved, the burden being heavier than on a balance of probabilities generally applied in civil cases. See: Kampala Bottlers Ltd Vs. Damanico (U) Ltd, SCCA No.

22/1992; David Sejjaka Nalima Vs. Rebecca Musoke, SCCA No. 12/ 1985.

In the instant case, fraud is pleaded in paragraph 8 of the amended plaint.

- 15 It is averred that the Defendant's fraudulent acts have caused the Plaintiff serious financial loss, mental anguish as the Plaintiff became homeless and the Plaintiff is entitled to damages. The alleged particulars of fraud are: - a) The defendant sold the suit land measuring 35x35 metres without the consent of the actual owner of the suit land; - b) the defendant did not follow the procedure of acquisition of customary land and disposal of the same; and - c) The defendant sold the suit land which was not his to the Plaintiff. - In his testimony, the Plaintiff relies on the Judgment of this Court (PEX7) 25 to impute fraud on the Defendant. He concludes on the basis of the judgment that, because this court found that the land sold belonged to

Harodur,

another, then in the Plaintiff's view, fraud was committed. With respect, $5$ the basis of the Plaintiff's invitation that this court finds fraud, is hollow. This court never found fraud against the present Defendant. Regarding the alleged failure to follow the procedure for acquisition and disposal of customary land as constituting fraud, no evidence was led to support the 10 claim. The plaintiff failed to demonstrate how customary land is acquired. He also failed to show that the land he bought was held under customary tenure. He also did not show how a default to follow procedure for sale of customary land, if at all, would constitute fraud. Although I have noted that the Defendant knew about the earlier disputes underpinning the land 15 and that the same had not been fully resolved, but went ahead with the sale, without disclosing to the buyer, this fact was not pleaded in the instant case, and was thus not canvassed, and was not proved as constituting fraud. It seems the Defendant became comfortable after the sale transaction because he had won the earlier matters against Okot 20 Dairo on the purported ground of res judicata. So had it been pleaded, I would not have found that his failure to disclose the old disputes, amounted to fraud. I am, therefore, not satisfied, on the evidence, that fraud has been proved to the required standard. The claim of fraud fails.

Hut Dans:

#### $5$ **Issue 9: Remedies**

The Plaintiff prayed for refund of the purchase price; special; general; and exemplary damages; interests, and costs of the suit. I discuss these reliefs in turn.

## **Refund**

- 10 Refund of the purchase price of shs. 16,500,000 is claimed, I think, on the basis of a failed consideration. The payment of this sum is evidenced by the bank deposit slip (PEX 2) which shows the amount was banked on the Defendant's bank account on 22 June 2007, a day before the agreement was executed. PEX3 which is a confirmation of the Bank balance shows 15 the Defendant's bank account was credited with shs. 16,500,000. These facts are not contested. In his response, however, the Defendant averred that, the Plaintiff having occupied the land for over 10 years, should not get his refund. With respect, this view is neither rooted in law or evidence. I hold that since the basis for the payment of consideration completely failed, and the agreement having lapsed, the Plaintiff is entitled to a refund 20 of shs. 16,500,000. In my view, even if the Plaintiff had had the use of the land, which is not evidenced, since the house was incomplete, I would have held that the use of the land was not part of the consideration contracted for, but the property in the land. Accordingly, I order for refund of shs. 16,500,000 to the Plaintiff for failed consideration. - 25

Hhotodius.

#### $\mathsf{S}$ **Special damages**

$10$

Special damages is claimed in the sum of shs. 167,718 500 which is well particularized. This amount is alleged to have gone towards the construction of the Bungalow. In his testimony, the Plaintiff produced receipts which show he purchased various items. I have added the various items on the receipts and it totals to shs. 103, 108, 500. In line with the principle in Gapco (U) Ltd Vs. A. S Transporters Ltd, Civil Appeal No. 07 of 2007 (SCU), I find that only Shs. 103,108,500 has been proved. I accordingly award **shs. 103, 108, 500** to the Plaintiff as special damages because if the Defendant had not breached the warranty he made, the Plaintiff would not have suffered this loss.

I have further observed that other amounts were claimed as special damages but not supported with receipts. I should state that receipts are not needed in all cases to support claim of special damages. In this case, the unsupported claims include the cost of transportation and labour. 20 However, I have declined these claims because they were pleaded as mere estimates based on bill of quantities and not what was ultimately incurred. That said, because it is very reasonable to suggest that expenses must have been incurred in transportation of materials to the building site and 25 to pay labour, yet I have declined to award them, these will be taken care of under general damages.

HAAODur.

#### $5$ General damages

General damages flow naturally from the acts complained of. General damages must be direct. It is compensatory in nature and should restore some satisfaction as far as money can do to the injured party. See: **Takiya** Kashwahiri & another Vs. Kajungu Denis, C. A. CA No. 85 of 2011. The 10 compensation should, therefore, represent the actual loss suffered. See: V. R Chande Vs. East African Railways Corporation (1964) E. A 78 and evidence has to be led to prove the claim for general damages for inconvenience, mental suffering and anguish. See: **Kibimba Rice Co. Ltd** Vs. Umar Salim, SCCA No. 7 of 1988. On the quantum, there ought to be some evidence to guide court in making a proper assessment although 15 court retains and exercises judicial discretion on the quantum, taking into account the facts and circumstances of each case. See: **Crown Beverages** Ltd Vs. Sendu Edward, SCCA No. 1 of 2005.

In the instant case, it is axiomatic that the Plaintiff suffered the loss of his 20 Bangalow. He testified that he had wished it to be a family home. I think the Plaintiff must have gone through some rough time as his hopes were dashed when the house was razed down. If the Defendant had warned the Plaintiff about the historical disputes surrounding the land, the Plaintiff 25 might not have bought or at least, hurried to develop it with a Bangalow. The Plaintiff attempted to mitigate his loss by requesting for alternative land, but the Defendant refused. The Defendant was arrogant and said he

*throom*

$\mathsf{S}$ was not responsible, and the Plaintiff should pursue the court bailiffs. The Defendant has certainly been unbothered about the plight of the Plaintiff yet their relations was in the beginning, a normal one, with the best of expectations. I agree that the circumstances warrant an award of general damages but not in the region proposed by learned Counsel. Therefore, I 10 award the Plaintiff shs. 30,000,000 in general damages.

## **Exemplary damages**

Exemplary damages have been claimed. Exemplary damages are the exception to the rule that damages generally are awarded to compensate the injured person. Exemplary damages are awardable to punish, deter, 15 express outrage of court at the Defendant's egregious, highhanded, malicious, vindictive, oppressive and/or malicious conduct. They may also be awarded for improper interference by public officials with the rights of ordinary subjects. They focus on the Defendant's misconduct and not the injury or loss suffered by the Plaintiff. Exemplary damages are in the 20 nature of a fine to appease the victim and discourage revenge and warn society that similar conduct will always be an affront to society's and court's sense of decency. It is awardable with restraint and in exceptional cases, because, punishment ought, as much as possible, to be confined to 25 criminal law, and not to civil law of tort and contract. See: **Uganda** Revenue Authority Vs. Wanume David Kitamirike, Court of Appeal Civ. Appeal No.43 of 2010 (per R. Kasule, JA).

Harden.

In Rookes Vs. Bernard (1964) AC 1129, which has been followed in East Africa in the case of Obongo & Another Vs. Municipal Council of Kisumu [1971] E. A 91, it was noted that, award of exemplary or punitive damages are limited to three category of cases, first, where there is 10 oppressive, arbitrary or unconstitutional action by public servants; second, where the motive of making a profit is a factor such as where the Defendant in disregard of the Plaintiff's rights, calculates that the money to be got out of the wrong to be inflicted on the Plaintiff, will exceed the damages at risk; and third, where a statute imposes punitive/exemplary $15$ damages to be paid. See also: Owiny Peter Mwa Vs. Okello George Odipe, HCCS NO. 28 of 2019.

The facts of the instant case do not support a claim for award of exemplary damages. The prayer is rejected.

$5$

### **Interest**

The Plaintiff prayed for interest of 25 % p.a on each head of damages. I reject the omnibus claim of interest. But in keeping with the principle of the exercise of discretionary powers under section 26 (2) of the Civil

Procedure Act, I award interest of 14 % per annum on the refund of failed $25$ consideration of shs. 16, 5000,000 from the date it was paid by the Plaintiff as the buyer, which is 22 June, 2007, till full refund. I also award interest

Huroden.

- $\mathsf{S}$ of 14% p.a on special damages of shs. 103,108, 500 from the date of filing the amended plaint on 18 August, 2021, till full payment. I further award interest of 8% p.a on general damages of shs. 30,000,000 from the date of this Judgment till full payment. - Regarding costs, it was held in Sheikh Jama Vs. Dubat Farah (1959) 10 **E. A** 789 that costs of, and incidental to all suits are in the discretion of the court but where the court decides that any costs shall not follow the event, the court must set out the reasons in writing. In line with section 27 of the Civil Procedure Act, and case law, I see no reason for denying costs of the suit to the Plaintiff. He is awarded costs to be taxed. 15

I so order.

Delivered, dated and signed in court this 1<sup>st</sup> day of October, 2024

# George Okello **JUDGE**

25 Judgment read in Court

In the presence of

Mr. Otim Innocent, holding brief for Mr. Okot Edward David, Counsel for the Plaintiff.

30 Parties absent.

Mr. Ochan Stephen, Court Clerk.


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