Walugembe v Habib Kagimu (Civil Suit 84 of 1997) [1998] UGHCLD 1 (22 July 1998)

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA CIVIL SUIT 84/97

ABDU KARIM WALUGEMBE PLAINTIFF

- VERSUS -

**E**

HABIB KAGIMU DEFENDANT

## JUDGEMENT

The plaintiff by his amended plaint dated the 3rd day of February 1997 sued the defendant claiming a number of reliefs as contained in the last paragraph of the plaint. The facts which gave rise to the dispute in this matter appear to be the following

By an agreement of sale of land dated the 15th July 1996 (exhibit P.l) the plaintiff agreed to sell the defendant a piece of land known as Kyadondo Block 208 Plot 1129 at Kawempe a Kampala Suburb for a consideration of shs. 180,000,000/=. Upon the signing of the sale agreement the defendant paid the plaintiff a sum of shs. 100,000,000/=. This money was paid to Uganda Development Bank for a loan secured by the plaintiffs for the release of the certificate of title. The balance of shs. 80 million was to be paid in three instalments and the full purchase price was paid another agreement for the purchase of the machinery in the concluded. The purchase price was shs. 60 million. This money was paid. premises was one of them of shs. 10 million was duly paid leaving a balance of shs. 70 million. Before Both agreements did not state when the purchaser will get vacant possession. The plaintiff remained in the premises waiting to be paid his balance of the purchase price. The purchase price was not apparently paid and instead the defendant obtained a special certificate from the Chief Magistrate's Court at Mengo authorising a firm of bailiffs to levy distress for rent evicted. It is claimed by him that in the process of evicting him he suffered damage and property worth over 50 million shillings was destroyed. He is claiming the loss suffered. against the plaintiff by evicting him from the premises. The plaintiff was accordingly -

The defendant in his written statement of defence denied the allegations levelled subsequent deed which fundamentally altered the original position. He also contended thatthe purchase price was fully paid and therefore the title and the property in the goods passed to him. against him by the plaintiff. He contended that the sale agreement was varied by the

There was a counter-claim for the sum of shs. 64,802,000/= being the outstanding rent and general damages for breach of sale agreements and tenancy agreement.

When the trial commenced, the following were the agreed issues

- 1. What was the agreed purchase price? - What was the intention of the parties when they executed the variation deed and for 2. what consideration was the sum of shs. 60,000,000/= paid? - Whether there was breach of the agreement and if so by which party? 3. - Whether the plaintiff was lawfully evicted from the premises. 4.

- 5. Whether there is still a balance covering on the purchase price and if so, how much? - 6. Whether the plaintiff is entitled to the remedies sought. - 7. Whether the defendant is entitled to the prayers in the counter-claim.

The plaintiff was the only witness called. He testified that he used to work as a baker in Faisal Memorial Bakery in Bwaise. This is the bakery he sold to the defendant for the sum of shs. 180,000,000/=. An agreement (exhibit P.l) was prepared and read to him by^. Odere Counsel for the defendant. Both parties signed. He further testified that the first instalment of shs. 100,000,000/= was paid by the defendant to Uganda Development Bank to secure the release of the title deed which had been used as security for a loan. Another **<sup>I</sup>** sum of shs. 10,000,000/= was paid by the defendant and the title deed was handed to him. The balance of shs. 70,000,000/= was to be paid in two instalments. The first instalment of shs. 20,000,000/= was to be paid after the removal of all the machinery; from the premises and shs. 50,000,000/= after a period of 3 months. Later on 26th August 199"6, another agreement for the sale of the machines was executed for a consideration of shs. *I* 60,000,000/= which was duly paid.

moulder were sold. He stated that there were other machines which he had used for over eight years and they were not part of the agreement. The plaintiff further stated that he demanded for it, he was served with an eviction notice from the defendant alleging that he 50,000,000/ = . According to the plaintiff only five machines namely an oven, mixer, prover, slicer and was a tenant. He was eventually evicted and in the process he lost property worth shs. remained in the premises waiting for the balance of the purchase price, and when he

**I** *1*

The defendant did not testify and the reason for it appear on the record of proceedings. But even if the defendant elects to say nothing, this does not lessen the burden on the plaintiff to prove his case on the standard required by law.

determine this regard must be had to the language used in the document (exhibit) which both **5** parties signed. The agreement describes the plaintiff as Vendor and owner of land whose particulars have already been given. It was agreed that:- Turning to the first issue of what was the agreed purchase price. In order to

"In consideration of the sum of U. Shs. 180,000,000/= (shillings one hundred and eighty million only) to be paid to the vendor upon transfer to the purchaser in the manner herein below described, the Vendor hereby sells to the Purchaser and the **K** Purchaser Hereby Purchases all the land described with all its interest therein"

I think the language used in the above excerpt is clear and unambiguous. It is therefore the duty of this Court to give legal effect to the words used by declaring that the consideration for the purchase of land was shs. 180,000,000/=.

**<sup>I</sup>** The second issue which was framed was what the intention of the parties when they executed the variation deed.

The evidence given by the plaintiff was that he agreed with the defendant for the latter to purchase five machines for a consideration of shs. 60,000,000/=. He was not contradicted. The variation deed (exhibit P.2) was partly concluded in the following terms

- **"<sup>1</sup>** The parties agree that the following additions and amendments to the Agreement shall immediately take effect. - (a) That in consideration for shs. 60,000,000/= (sixty million to be paid to the vendor by the purchaser by 2nd September 1996, the vendor hereby sells to the purchaser all the land described above will all its machinery and developments thereon and more particularly described in the schedule to this deed. - (b) Clause 3(b) of the Agreement is hereby deleted. - 2. All other terms and conditions of this agreement shall remain in full force and effect. Provided that in case of conflict with any of the terms and conditions of the Sale Agreement, the provisions in this Deed shall prevail" **10**

It was submitted by counsel for the plaintiff that the deed purported to create a fresh agreement for both the land and machines at shs. 60,000,000/= as the new purchase price for both. He pointed out that at the time of the variation deed the defendant had already paid shs. 100,000,000/= under the sale agreement. He claimed that the deed was erroneous in amounting to U. shs. 60,000,000/= for the purchase of machines located on block 206 plot 1129 Kawempe. substance. He also referred to Exh. P.3 which was an acknowledgment drafted by the *<sup>I</sup> J* defendant's lawyers. The acknowledgment states that the plaintiff had received monies

From the foregoing, it seems to me that the intention of the parties in executing the variation deed was to sell the machines which the plaintiff was supposed to remove from the premises Furthermore it had been agreed in the original agreement that the machines would be removed by the vendor and the variation deed deleted the clause of removal of the machines. <2

hundred million shillings towards the purchase of the land and therefore the variation deed defendant took the plaintiff's machines without any consideration. It is my finding that the price of shs. 60,000,000/= was paid for the machines which the plaintiff mentioned in his **5** testimony. in accordance with the sale agreement. Moreover, the defendant had already paid over one did not modify the purchase price of the land. To hold otherwise would mean that the

The third issue is whether there was a breach and if so by who? A contract creates reciprocal rights and obligations between the parties which have to be reserved. In contract a breach is said to have occurred when one party or both repudiates or fails to perform one or more of the obligations imposed upon him/her by the contract. In the instant case, it was agreed that the defendant would pay the balance of the purchase after a period of three months. The agreement was signed on the 15th July 1996. The last payment was therefore expected to be completed by the 15th of October 1996 or thereabouts. The evidence adduced therefore establish that there was a breach and it is the defendant who breached the sale agreement by failing to pay the balance of the purchase price. .

On the fourth issue, the evidence given by the plaintiff is that he had no tenancy agreement with the defendant. Yet the allegations made by the defendant were that the plaintiff was in arrears of rent. However the testimony of the plaintiff was that he remained in the premises waiting to be paid the balance of the purchase price and when he demanded it, the defendant obtained a warrant for distress of rent and evicted him using auctioneers. In absence of any evidence to the contrary I accept the plaintiff's version of events and find that the eviction of the plaintiff was unlawful

## Remedies

In the plaint, the plaintiff had prayed for the following reliefs

- (i) Shs. 70,000,000/= being the balance owing on the sale of land. In view of my findings above, the plaintiff is entitled to this sum. - (ii) trespassing on the suit premises until the balance on the sale agreement is paid in full. This relief cannot be granted in view of the fact that the plaintiff has already been evicted from the premises. An injunction restraining the defendant from evicting the plaintiff or further kZ) - (iii) direct result of the wrongs complained of for which the defendant is liable. The plaintiff claimed that when he was evicted, he lost properties whose particulars are contained in exhibit P. V. He produced invoices from different proved. It will be awarded. business organisations to support the amount of money required to replace them. The grand total is shs. 50,168,000/=. <sup>I</sup> think this amount was strictly *4^* Special damages. The rule which has been established, is that these damages must be pleaded and strictly proved by the party claiming them as being the - Compensation for loss of business and business profits during and after the (iv) trespass on the premises by the defendant. The plaintiff did not lead any evidence as to the loss of business so as to give a picture of what he lost.

Nothing will be awarded on this head.

- (v) General damages for breach of contract. The plaintiff is not entitled to this reliefs in my view since he has already obtained an order of specific performance i.e payment of the balance of the purchase price. - (vi) The counter-claim was not proved and therefore no remedies are available to the defendant. It will be dismissed with costs to the plaintiff.

Judgment will be entered in favour of the plaintiff against the defendant in the sum of shs. 70,000,000/= being the balance of the purchase price. The sum of shillings for in the plaint. The plaintiff will have the taxed costs of the suit. 50,168,000/= as special damages. No interest will be awarded because it was not prayed I'D -

> C. K. Byamugisha Judge 22/7/98