Wakabi v Centenary Rural Development Bank Limited (Civil Suit 653 of 2019) [2024] UGCommC 250 (9 May 2024)

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION) CIVIL SUIT NO. 653 OF 2019**

#### 10 **WAKABI MARTIN ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF**

#### **VERSUS**

# **CENTENARY RURAL DEVELOPMENT BANK LIMITED:::::DEFENDANT BEFORE: HON. LADY JUSTICE PATIENCE T. E. RUBAGUMYA JUDGMENT**

#### Introduction

- 20 This matter was filed on 6th August, 2019, by the Plaintiff for a declaration that the Defendant breached its contract with the Plaintiff, an order for recovery of UGX 153,780,000/= (Uganda Shillings One Hundred Fifty-Three Million Seven Hundred Eighty Thousand Only) being special damages arising from breach of the contract, general damages, interest - 25 and costs of the suit.

### Background

The Plaintiff's brief facts are that through a public auction, the Plaintiff purchased from the Defendant land comprised in Block 547 Plot 5 land at

30 Senyi Kyaggwe County, Mukono District measuring approximately 6.7680 hectares at UGX 41,000,000/= (Uganda Shillings Forty-One Million Only). On 7th December, 2018, the Defendant executed a transfer instrument of the land and that upon carrying out a search at the Lands Registry, the results reflected that the land; by power of attorney was vested in Mr. 35 Zziwa Livingstone and that the incumbrance page reflected a mortgage registered by the Defendant. The Plaintiff started developments on the land

- 5 which included clearing the land, setting up nursery beds and had some workers who were carrying out tasks on the land. The Plaintiff stated that while work was ongoing on the land, National Forestry Authority officials with the help of army officers seized his workers who were clearing it on the basis that the said land was part of a forest reserve. The Plaintiff 10 through his lawyers demanded for compensation amounting to UGX 153,780,000/= being the purchase price plus inconveniences that he incurred in regards to the said land and consequently filed this suit. The purchase price was subsequently refunded by the Defendant. The Plaintiff now seeks recovery of UGX 112,000,000/= (Uganda Shillings One - 15 Hundred Twelve Million Only) being special damages.

In its defence, the Defendant contended that it is not responsible for any loss or inconvenience arising from the Plaintiff's use of the suit property after the Defendant had delivered vacant possession of the property to him

20 and effected transfer of title into his name. That the Defendant did not give any warranty as to the indefeasibility of its title in the suit property and sold the property to the Plaintiff only in the exercise of its statutory rights as the mortgagee of the suit property.

### 25 Representation

The Plaintiff was represented by Learned Counsel Jeremiah Karugaba of M/s Kaggwa & Kaggwa Advocates while the Defendant was represented by Learned Counsel James Zeere of M/s S&L Advocates.

The parties were directed to file their written submissions which they did 30 and I am grateful and the same have been considered.

# 5 Issues for Determination

- 1. Whether the Plaintiff is entitled to UGX 112,000,000/= (Uganda Shillings One Hundred Twelve Million Only) being special damages? - 2. Whether the Plaintiff is entitled to general damages, interest and 10 costs prayed for?

# Plaintiff's submissions

Issue No. 1: Whether the Plaintiff is entitled to UGX 112,000,000/= (Uganda Shillings One Hundred Twelve Million Only) being special damages?

15 Referring to **PE2** (a Land Sale Agreement) Counsel for the Plaintiff submitted that the Plaintiff purchased the suit land from the Defendant which he fully paid for as evidenced by **PE1**, a bank receipt showing payment of UGX 41,000,000/=.

However, that the said land was rendered unusable since it was gazetted 20 as a forest reserve by National Forestry Authority long before he purchased it as evidenced by **PE6,** a copy of the survey report addressed to the Executive Director of National Forestry Authority. Counsel stated that the National Forestry Authority officials with the assistance of army officers evicted the Plaintiff and arrested some of his workers who were clearing 25 the land and also confiscated machinery, tools, cement poles and avocado seedlings among others, that had been put on the land.

In evidence, Counsel relied on **PE6** arguing that its description of the land after the eviction of the Plaintiff and his workers as a 'crime scene' speaks to the forceful eviction of the Plaintiff and the subsequent arrest of his 30 workers.

- 5 Counsel for the Plaintiff contended that the eviction and arrest also speak to the costs the Plaintiff pleaded including but not limited to avocado seedlings, concrete poles, the cost of hiring machine operators, hiring out machinery that was charged per day; that were occasioned as a result of the forceful eviction and the fact that the land that the agents of the - 10 Defendant sold to the Plaintiff was a forest reserve.

Counsel also relied on the principle of law that special damages must be specifically pleaded and strictly proved, but that strict proof does not mean that proof must always be by documentary evidence. Counsel contended that special damages can also be proved by direct evidence; for example, 15 by evidence of a person who received or paid or testimonies of experts

conversant with the matter.

For the above proposition, Counsel for the Plaintiff relied on the case of *Stanbic Bank Uganda Ltd Vs Hajji Yahaya Sekalega t/a Sekalega Enterprises High Court Civil Suit No.185 of 2009* and further quoted 20 **Hon. Justice Bashaija K. Andrew** in the case of *Mugabi John Vs Attorney General High Court Civil Suit No.133 of 2002* in which he stated that:

"*My understanding of the phrase; "specifically pleaded and strictly proved", from the above cited authorities is that proof need not* 25 *necessarily be documentary or physical in nature.*

*In practice, where a party claims that he or she has suffered special damages or injury of a kind that may not be proved by documentary or physical evidence, the duty lies upon him or her to plead full particulars to show the nature and extent of the damage* 30 *claimed, that is; the amount he or she claims to be recoverable. This operates fairly to inform the Defendant sufficiently of the case*

5 *he or she is to meet so that he or she is not taken by surprise. See Shah Vs Mohamed Haji Abdalla [1962] EA 769.*

*The stated position confirms that as long as there is sufficient proof of the loss actually sustained which is either a direct consequence of the Defendant's action/omission or such a consequence as a* 10 *reasonable man would have contemplated, this would suffice in place of physical and/or documentary evidence. See: Byekwaso Vs Mohammed [1973] HCB 20***.**"

Referring to the above, Counsel submitted that the Plaintiff's evidence in chief under paragraphs 10, 11 and 12 of his witness statement, states that 15 the purpose of purchasing the land was for growing avocado seedlings. Counsel contended that the Plaintiff employed both personnel and machinery to effect his desire and that the subsequent eviction corroborates with **PE6**, which is the report from National Forestry Authority on the "crime scene", as a result of the detention of the Plaintiff's

20 personnel.

Counsel further submitted that during cross-examination, the Defendant's witness testified that he was aware of the interest of National Forestry Authority in the suit land and of the fact that the Plaintiff could not use the land anymore. The Defendant's witness further acknowledged the 25 financial loss caused to the Plaintiff since he could not possess the land that he purchased from the Defendant's agents.

In conclusion, Counsel for the Plaintiff submitted that the Plaintiff through his pleadings and evidence, is entitled to the special damages and prayed that this Court grants the same amounting to UGX 112,000,000/=.

# 5 Defendant's submissions

In reply, Counsel for the Defendant disputed the Plaintiff's entitlement to any special damages for lack of proof that the Defendant is liable for the alleged loss and lack of proof of the said loss.

Counsel for the Defendant defined damages as per **Black's Law** 10 **Dictionary, 9th Edition pg. 445** as the sum of money which a person wronged is entitled to receive from the wrongdoer as compensation for doing the wrong.

He contended that the Plaintiff can only be entitled to any form of damages including special damages if the Defendant committed the wrong that led

15 to the damage.

However, that in the instant case, the Defendant refutes committing any wrong as it was unaware at the time of execution of the Land Sale Agreement that the land had been gazetted by National Forestry Authority.

- Counsel for the Defendant then explained that before accepting the 20 mortgage over the said land as security for the loan, the Defendant searched with the Commissioner for Land Registration in which there was no information raised to disclose that the land was gazetted by National Forestry Authority as evidenced by **DE2**. That the search certificate indicated that the land was registered in the name of Matovu Timothy, the - 25 intended mortgagor.

Counsel further argued that the Defendant also commissioned a survey of the property by Katuramu & Company Consulting surveyors who reported that the land was held under freehold tenure and owned by Matovu Timothy, the intending mortgagor as evidenced by **DE3**.

- 5 Furthermore, that before selling the land to the Plaintiff, the Defendant commissioned another survey in June, 2018, which also reported that the land was held under freehold tenure belonging to Matovu Timothy, the intended mortgagor and the plot was vacant in a developed neighborhood as shown by **DE6**. - 10 Counsel for the Defendant further contended that even after the sale, the Defendant introduced the Plaintiff to the local leaders of the area in which the land was located, including the Chairman Local Council, the Vice-Chairman, the Local Council Secretary and the Local Defence. - Pursuant to the due diligence undertaken, Counsel for the Defendant 15 argued that there was a genuine belief by every person involved in the case including the Local Council leaders, the Surveyors and the Commissioner for Land Registration that the land in issue belonged to Matovu Timothy, the mortgagor, and was therefore available for sale and that the said Matovu Timothy even gave consent to the Defendant to sell the land to 20 recover the loan which confirms that before the sale, he was believed to be

the genuine owner of the land as seen by **DE5A**. Counsel further contended that at the time of sale, there was no evidence

and that no evidence was adduced during the hearing of the matter to demonstrate that the Defendant was aware that the land had been 25 gazetted by National Forestry Authority as a forest reserve at the time of its sale to the Plaintiff.

In that aspect Counsel for the Defendant relied on **Section 17 (1) of the Contracts Act, 2010** which is to the effect that where both parties to an agreement are under a mistake as to a matter of fact which is essential to 30 the agreement and consent is obtained by mistake of that fact, the agreement is void and that as per **Section 2 of the Contracts Act**, a void

5 agreement is unenforceable by law. To that proposition, he referred to the case of *Game Concepts Vs Mweru Rogers High Court Civil Appeal No.71 of 2012* in which Court relied on the case of *Ocharm Plumbers and Associates Ltd Vs Drury (U) Ltd HCCS 0723 of 2006* and held that where a mistake is so fundamental, that is, where it goes to the root of the 10 contract it prevents the formulation of a true contract and any apparent

contract is *void ab initio*.

Counsel then submitted that in this case, it is impossible to enforce the Land Sale Agreement because, at the time of the sale, it was presumed that the land belonged to Matovu Timothy and was thus available to be 15 sold to the Plaintiff. In contrast, the land was gazetted by National Forestry Authority and therefore not available for sale. To that aspect, Counsel for the Defendant submitted that the said mistake went to the root of the Contract and once discovered, it rendered the whole Contract void and unenforceable and hence the claim is unenforceable.

20 Counsel for the Defendant also argued that even if this Contract was enforceable, the Plaintiff has failed to prove the special damages as sought. Although he agreed with the principle that special damages should be specifically pleaded and proven and in some instances, may be proved orally, Counsel for the Defendant contended that the special damages 25 pleaded by the Plaintiff can only be reasonably stated to have involved documentary evidence and would therefore be proved by documentary evidence to show that the expenses were incurred.

Counsel argued that the alleged expenses involve significant amounts of money allegedly paid as consideration for the purchase of goods and 30 provision of services of significant value and that any prudent and reasonable person involved in transactions of such value would at least be

- 5 expected to have documented the transactions in one way or the other as proof that he paid for the goods or services in the event any issue arose concerning the transaction. Counsel for the Defendant submitted that, no record was rendered to corroborate the Plaintiff's oral testimony. - Counsel for the Defendant submitted that though the Defendant refunded 10 the cost of the land purchase by consent, it was not an admission of liability. Counsel submitted that there is no basis for the grant of special damages.

#### Analysis and Determination

15 I have perused the record and considered the submissions of both Learned Counsel together with the authorities cited therein.

As provided for under **Section 101 (1) of the Evidence Act, Cap. 6**, 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 must prove

20 that those facts exist. (See also **Sections 102, 103** and **104** of the Evidence Act and the case of *Sebuliba Busuulwa Vs Co-operative Bank Ltd [1982] H. C. B 129)*.

The Plaintiff herein seeks the following special damages that he specially 25 pleaded under paragraph 6 of the plaint; survey cost of UGX 2,000,000/=, transport for surveyors of UGX 500,000/=, personal costs (Martin) of UGX 2,000,000/=, Transport to and from Senyi of UGX 3,000,000/=, tractor hire for 12 days of UGX 12,000,000/=, low bed hire at UGX 2,000,000/=, power saw at UGX 3,000,000/= for two months, accommodation for 30 machine operators for 7 days at UGX 250,000/=, 100 concrete poles at UGX 3,000,000/=, 20,000 avocado seedlings at UGX 70,000,000/= and road compensation of UGX 5,000,000/=.

- 5 However, the Defendant denied liability contending that it was under the belief that the suit property belonged to Matovu Timothy. Counsel for the Defendant also contended that the above transaction is *void ab initio* as it was based on a mistake of fact, which was essential to the agreement. - It is a cardinal principle that the effect of a mistake is that it makes the 10 contract void. (See: *Associated Japanese Bank (International) Ltd Vs Credit du Nord S. A [1988] 3 All ER 902)*. Therefore, this Court must determine whether the Land Sale Agreement executed between the Plaintiff and Defendant was a valid contract.

I am mindful of the fact that as stated in the case of *Omega Bank Vs*

15 *O. B. C Limited (2005) 8 NWLR (pt.928) 547*, it is not the business of the Court to rewrite Contracts between parties but rather to construe the surrounding circumstances to effectuate the intention of the parties.

**Section 10 (1) of the Contracts Act** provides that a contract is an agreement made with the free consent of the parties with the capacity to 20 contract, for a lawful consideration and with a lawful object, with the intention to be legally bound.

The case of *Sharif Osman Vs Hajji Haruna Mulangwa SCCA No.38 of 1995*, defined a valid contract as one that is sufficient in form and substance so that there is no ground whatsoever for setting it aside 25 between the vendor and purchaser i.e a contract binding on both parties.

As held in the case of *Greenboat Entertainment Ltd Vs City Council of Kampala Civil Suit No.580 of 2003*, for a contract to be valid and legally enforceable, there must be: capacity to contract, intention to contract, *consensus ad idem*, valuable consideration, the legality of purpose, and 5 sufficient certainty of terms. If in a given transaction any of them is missing, it could as well be called something else other than a contract.

**Section 13 (e) of the Contracts Act** provides that consent of a party is free, if it is not caused by mistake, subject to **Sections 17 and 18 of the** 10 **Act**.

On the other hand, **Section 17 (1) of the Contracts Act,** is to the effect that where both parties to an agreement are under a mistake as to a matter of fact which is essential to the agreement, consent is obtained by mistake of fact and the agreement is void.

## 15 In the case of *Nilecom Limited Vs Kodjo Enterprises Ltd Civil Suit No.18 of 2014*, **His Lordship Justice Stephen Mubiru** stated that;

"*A mistake of fact is a factual error that, if the correct fact had been known, would have resulted in a different contract. A mistake of fact arises where either (1) the facts exist, but are unknown, or (2)* 20 *the facts do not exist as they are believed to exist. The defence of mistake would arise in a case where only one party has knowledge of the subject matter and the other simply relies on what the first party intimates. Ordinarily, unilateral mistake does not make a contract void, except where one party relied on a statement of the* 25 *other about a material fact that the second party knows or should have known was mistaken by the first party or where the mistake was unconscionable*."

In the case of *Associated Japanese Bank (International) Ltd Vs Credit du Nord S. A (supra),* it was stated that the effect of a mistake is to make 30 the contract void while in the case of *Bell and Anor Vs Lever Brothers Ltd and Ors [1932] AC 161*, it was held that a common mistake can void

5 a contract only if the mistake of the subject matter was sufficiently fundamental to render its identity different from what was contracted, making the performance of the contract impossible.

In the above case, Lord Denning detailed that a contract will be void only if the mistake prevents the formation of the contract or if it is fundamental.

- 10 The party seeking to set it aside is not at fault, that is; even in cases where such a party considers such mistake to be fundamental. From the above it is put out that a contract without consent is not legally binding and hence unenforceable. - 15 In the instant case, as evidenced by **DE8**, on 27th November, 2018, the Defendant through its agents Real African Associates, sold to the Plaintiff land comprised in **Folio 15 Block 547 Plot 5 Kyaggwe County land at Senyi, Mukono District** registered in the name of Matovu Timothy. However, after the sale, it was discovered that the land had been gazetted 20 as a forest reserve by National Forestry Authority.

The Defendant contends that at the time of the sale, it was presumed that the land belonged to Matovu Timothy and was thus available to be sold to the Plaintiff whereas the land had been gazetted by National Forestry Authority and therefore was not available for sale.

25 Counsel for the Defendant contended that the above mistake went to the root of the contract hence rendering the whole contract void and unenforceable.

In proof that it was not at fault, the Defendant presented; **DE2**, a search letter from the Commissioner for Land Registration dated 30th August,

30 2017 that reflects Matovu Timothy as the registered proprietor of the suit land with no incumbrances. There was nothing on the search report to

- 5 show that National Forestry Authority had an interest in the land or that the land was part of a forest reserve. Furthermore, **DE3**, a survey report by Katuramu & Company Consulting Surveyors on the suit property dated 25th January, 2017 was further exhibited showing that the land belonged to Matovu Timothy under instrument MKO-00020176 and that it was free - 10 of any registered incumbrances.

On 30th August, 2018, before selling the suit land to the Plaintiff, the Defendant made another survey as evidenced by **DE6** and it shows that Matovu Timothy was the registered proprietor and that the plot was vacant.

15 It is also undisputed that after the sale, the Defendant introduced the Plaintiff to the Local Council leaders including the Chairperson Local Council, the Vice Chairperson, the Local Council Secretary and the Local Defence as evidenced by **PE3**.

I have also looked at **DE4**, the Certificate of title in respect of the suit land 20 and it reveals Matovu Timothy as the registered owner vide Instrument No. MKO-00020176 having been registered on 2nd September, 2015. The said title had conditions in respect of the use of the land. The conditions were registered on 2nd September, 2015 vide Instrument No. MKO-00020176. The said conditions stipulate that the user was to be restricted to tourism, 25 compensation to tenants if any on the land, was to be done by the Applicant and the land was to be developed following the planning regulations on the area and the incumbrance page presents a mortgage by the Defendant.

By his testimony, it is portrayed that the Plaintiff did not carry out any 30 due diligence in respect of the ownership and existence of the suit property. The Plaintiff did not make an effort to have a look at the

- 5 Certificate of title of the property which he was buying. Further during reexamination, the Plaintiff admitted that he got the Certificate of title after being chased from the land. Further, it was revealed through crossexamination, that he carried out a search and this is evidenced by the search statement dated 3rd May, 2019 marked as **PE5,** after buying the - 10 land. He also presented the report from National Forestry Authority (**PE6)** confirming that the suit land was gazetted hence he is unable to occupy the suit land.

Though **Section 59 of the Registration of Titles Act, Cap. 230**, stipulates that a certificate of title issued under the Act is conclusive 15 evidence that the person named as proprietor shall be the proprietor and his title shall be indefeasible, the nature of land transactions require a land purchaser to be aware of what he is buying by carrying out due diligence.

Due diligence as per **Black's Law Dictionary, 9th Edition, p.523** is 20 defined as:

"the *diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation*."

The above is reflected in the English case of *Wilkes Vs Spooner [1911] 2* 25 *KB 473*, which stated that once a purchaser refrains from inspecting the register, then he is deemed to know what is on the title.

Further, in the case of *Jennifer Nsubuga Vs Micheal Mukundane and Shine Asiimwe Court of Appeal Civil Appeal No.208 of 2018*, in her Judgment, **Hon. Lady Monica K. Mugenyi JA,** while laying her view on 30 the issue of due diligence in land transactions stated that;

5 "*In my view, therefore, it would be self-defeating to consider supposed consultations with the vendor of the property to amount to due diligence for purposes of cross-checking the authenticity of her interest in the land in question. As was astutely observed by this Court in Sir John Bagire Vs Ausi Matovu, Civil Appeal* 10 *No.7 of 1996, 'buyers are expected to make thorough investigations not only of the land but also of the seller before purchase*."

From the foregoing, it is therefore prudent that a buyer in land transactions, is aware of what he or she is buying by carrying out due 15 diligence which entails looking at the Certificate of title, making physical searches both at the lands registry and physical planning authorities, making inquiries with NEMA, physically visiting and surveying the land among others.

In the instant case, because the Plaintiff did not take a look at the 20 Certificate of title, he was unaware of the conditions on the Certificate of title. The Plaintiff faults the Defendant for failing to carry out due diligence. In my opinion, this cannot be faulted solely on the Defendant. It is not shown that the Plaintiff ever requested for the Certificate of title from the Defendant and the Defendant refused neither did he ever take any steps 25 to determine the viability of the transaction he was consenting to. If the Plaintiff had gone ahead to have a look at the certificate of title before purchase, then he would have been aware of the restrictions on the land use and possibly obtained further details as what they meant and what activities could be carried out on the land to aid him in making a final 30 decision as to whether or not to purchase the land in issue.

- 5 In the instant case, when the Certificate of title, **DE4** was shown to the Defendant he made a search to confirm the same and carried out a survey both before the mortgage and before selling the property to the Plaintiff to confirm the ownership of the property. The local leaders of the area where the suit land is located were aware of the transaction on the suit land and - 10 no evidence was adduced that they were aware that the land had been gazetted as a forest reserve by National Forestry Authority.

From the above evidence, it can be believed that at the time of the mortgage transaction and the sale of the suit land, the Defendant was under the belief that the suit property belonged to Matovu Timothy, which 15 information was relied upon by the Plaintiff in the purchase of the land. In the circumstances, I find that both parties and other participants involved in the transaction of the sale of the suit property were under the belief that the suit land belonged to Matovu Timothy hence amounting to mistake of fact of the existence and ownership of the subject matter.

- 20 Since the said land had been gazetted as a forest reserve, it is proper to state that the parties were mistaken as to the existence and ownership of the subject matter of the agreement which was a fundamental character as to constitute an underlying assumption, without which the parties would not have agreed. As was held in the case of *J. W. R Kazzora Vs* - 25 *M. L. S. Rukuba SCCA No.13 of 1992*, a fundamental mistake nullifies consent, because it prevents the parties from reaching an agreement.

Therefore, if the parties had known that the land had been gazetted as a forest reserve, then the Plaintiff might not have consented to the agreement. Accordingly, I find the said Land Sale Agreement to be void. 30 The information that was availed to the Defendant vide the statement of search letter as at 30th August, 2017 from the Commissioner for Land

5 Registration confirmed that the registered proprietor was Matovu Timothy. There was nothing in the letter from the Commissioner Land Registration that indicated that the land had been gazetted as a forest reserve and therefore the Defendant could not have known that fact by the time the transaction with the Plaintiff was concluded. The Defendant therefore 10 cannot be said to have not carried out due diligence.

I shall now address the issue as to whether the Plaintiff is entitled to the special damages being sought.

It is a cardinal principle as laid out in the case of *Bonham-Carter Vs Hyde Park Hotel Ltd [1948] 64 TLR 177*, that special damages must not only 15 be specifically pleaded but they must also be strictly proved. (See also *GAPCO (U) Ltd Vs A. S Transporters Ltd SCCA No.07 of 2007*).

I agree with the submission by Counsel for the Plaintiff that special damages must be specifically pleaded and strictly proved, but that strict proof does not mean that proof must always be documentary. Counsel for

- 20 the Plaintiff further contended that special damages can also be proved by direct evidence; for example, by evidence of a person who received or paid or testimonies of experts conversant with the matter. In the instant case the Plaintiff did not adduce any evidence to prove any of the claims made. In cross- examination, the Plaintiff admitted further that he did not have - 25 any receipts and also stated that he did not want to forge receipts. Some of the claims could have been supported by documentary evidence in the form of receipts for instance, the cost for the survey, tractor hire or transport costs; however, none was adduced. Even for the second survey carried out, the Plaintiff stated during cross- examination that he did not 30 have the report. In addition, some of the claims like personal costs (Martin)

and road compensation are not supported by any form of evidence either

- 5 in documentary form or oral evidence from witnesses who could have been paid and the same goes for the cost of the seedlings. It is not clear why the Plaintiff did not call any of these people as witnesses to support his claim for special damages. In my view, the Plaintiff did not adduce any form of evidence whether oral or documentary to prove the special damages - 10 claimed.

Having also found the Defendant to have done the necessary due diligence to effect the transaction and since no evidence was adduced to support the claim for the alleged expenses, it is my finding that the Plaintiff has not adduced evidence to entitle him to the special damages being sought.

15 Issue No. 1 is resolved in the negative.

## Issue No. 2: Whether the Plaintiff is entitled to general damages, interest and costs prayed for?

The Plaintiff prayed for general damages. According to the case of *Kabandize John Baptist & 21 Ors Vs Kampala Capital City Authority*

- 20 *Court of Appeal Civil Appeal No.36 of 2016*, the general rule regarding award of general damages is that the award is such a sum that would put the person who had been injured as adjudged by Court in the same position as he/she would have been had he or she not sustained the wrong for which he/she is getting compensation. - 25 As stated above, all the parties in this transaction were under the mistaken belief that the land belonged to Matovu Timothy and did not know that National Forestry Authority had an interest in the land. The Defendant however proceeded to refund the purchase price which the Plaintiff does not dispute. During cross examination of DW1, Counsel for the Plaintiff 30 stated that the Defendant gave the Plaintiff an extra sum of UGX

5 5,000,000/= as compensation. In the circumstance and in light of the above finding, this Court shall not grant general damages.

Further since Court has not granted the claimed special and general damages, the claim for interest also fails.

The Plaintiff further claimed for costs. **Section 27 (2) of the Civil** 10 **Procedure Act, Cap. 71** provides that costs of any cause follow the event unless otherwise ordered by the Court. Further, in the case of *Uganda Development Bank Vs Muganga Construction Co. Ltd [1981] H. C. B 35,* **Hon. Justice Manyindo** (as he then was) held that:

In the instant case both parties were not aware of the interest of National 20 Forestry Authority in the land and further the Defendant refunded the money that was paid for the purchase of the land. In the circumstances, I order that each party meets their costs.

On the whole, the Plaintiff's claim against the Defendant is accordingly dismissed. Each party shall meet their costs of the suit.

25 It is so ordered.

Dated, signed and delivered electronically this **9th** day of **May**, **2024.**

Patience T. E. Rubagumya

## **JUDGE**

30 9/05/2024

7:35am

<sup>15</sup> *"A successful party can only be denied costs if it is proved, that but for his or her conduct, the action would not have been brought. The costs will follow the event where the party succeeds in the main purpose of the suit."*