Wasswa and Another v Mutawe sendikwanawa (Civil Suit 1029 of 1995) [1997] UGHC 18 (7 February 1997)

Full Case Text

## **THE REPUBLIC** OF **UGANDA** LN THE HIGH COURT OF UGANDA AT KAMPALA CIVIL **SUIT NO.** 1029 OF 1995

## **1. STEVEN WASSWAO 2. JACKSON SEKANDI0**

**;;;;;;;;;;;;;;PLAINTIFFS**

## **VERSUS**

## J **UD. G** M E N T **;;;;;;DEFENDANT THE HON. MR. JUSTICE A. O. PUMA CHARLES MUTAWE SENDIKWANAWA** BEFORE:

In this suit the plaintiffs claim against the defendant recovery of part of the land comprised in **Kibanja** Block 7 Plot 225 at Ndeeba occupied by the defendant (hereinafter called,,the suit land") for reasons that;-

- (a) by a Lease Agreement dated 7/6/1 992 the defendant was leased by Gabriel G. Galabuzi (deceased) part of the said land, measuring, 100 by 28 feet for a period of 49 years from June 1 962, paying an annual rent of Shs. 280/= per annum, (see Exh. P2); - (b) by a Sale Agreement dated 24/02/1 992, the defendant purported to purchase the reversionary interest in the suit land from the beneficiary Christopher William Mukasa Batte (See Exh. P3); for Shs. 420,000/ = */()* out of which he paid part payment of shs. 130,000/ = ;

- (c) according to the Sale Agreement, the defendant was to pay the balance of the purchase price in two instalments, that is to say, the 1st instalment was to be paid on 14/4/1992 and the last instalment even though the title deed was deposited with the defendant; **i** was to be paid on 18.4.1992 when transfer was to be effected, - (d) by the time the beneficiary died, the balance of the purchase price had not been paid, wherefor, the title deed was withdrawn from the defendant; - (e) upon the said purchase of the reversionary interest in 1992, the Lease q Agreement lapsed and thereafter there was no need to pay rent; - (f) from paragraph (c), it is difficult to conclude that there was purchase of reversionary interest, since by the time the beneficiary died the balance of the purchase price had not been paid the title deed was withdrawn from the defendant; - upon the death of Galabuzi who leased the defendant the suit land, (g) the lands comprised in Kibanja Block 7 plot 225 at Ndeeba were registered in the names of the Administrators of his estate, who were F. S Semakade, Mr. Muyimbwa and J. Naddamba;

- **(h)** the Administrators of the estate were aware of the defendant's **go** purchase transaction with the beneficiary Christopher William Mukasa Batte. In July, 1995, the Administrators through their lawyers wrote to the defendant for re-entry/forfeiture for non-payment of rent to which the defendant through his lawyers alleged purchase (see Annexure "C" to the plaint"); - **(i)** since the defendant breached the only contractual obligation of paying the balance of the purchase price and the same was rescinded the defendant is on the said land without any colour or right.

In summary, the brief facts of the case of the plaintiffs as can be derived from the proceedings reasons or claims are that plaintiffs are thee registered proprietors of ^{-0 plaintiffs succeeded to it from their father Christopher William Zake Mukasa Batte. Part of the land property was subject to a lease dated 7.6.1962 by the defendant for a period of 49 years from 7.6.1962. the property comprised in Kibanja Block 7 plot 225 situated at Ndeeba. The

In 1 992, the defendant elected to buy reversionary interest in that part of the land for which he made part payment of Shs. 130,000/= out of total purchase price of Shs. 420,000/ = , leaving a balance of Shs. 290,000/= which was to be paid The first instalment of Shs. 1 50,000/ = was to be paid on in two instalments. 14 3.1992 and the last instalment in the sum of Shs. 140,000/= was to be paid (See Annexure "C" to the plaint and Sale Agreement dated on 18.4.1995.

After payment of full purchase price the suit land was to be transferred to the defendant even though the title deed was deposited with him on payment of Shs. 130,000/= as security. The defendant failed to pay the balance of Shs. 290,000/ = .

The gist, therefore, of the case of the plaintiffs is that the defendant having elected to buy the reversionary interest the lease agreement lapsed when he failed to pay the balance of the purchase price. The relationship which emerged was that of the purchaser/vendor and not of the lessor-lessee. In the premise, upon failure to pay the purchase price as scheduled in the sale agreement the defendant breached the agreement, therefore, he is occupying the land without any right. Hence this suit.

The sole framed agreed issue is whether the defendant has any colour of right in the suit premises.

In proof of the issue, the plaintiffs adduced corroborative evidence. By adducing certificate of title Exhibit P1,they established their proprietorship to the suit of their late grand-father Gabriel G. Galabuzi, who has leased the suit premises to the defendant. (See Lease Agreement dated 7.6.1962, Exh. P2) for a period of 49 premises which were previously in the names of the Administrators of the estate years at yearly rent of Shs. 280,000/ = .

After the death of Gabriel G. Galabuzi the defendant elected to deal directly with his son, Christopher William Mukasa Batte, (Hereinafter referred to the father of the plaintiffs, whom he recognised as the beneficial owner of the suit premises (see paragraph 3 of the Written Statement of Defence), apparently with the consent of the Administrators. Given this clear piece of evidence, considered together, with Exhibit D1, a note dated 27.10.91, an acknowledgment by PW2, of receipt of shs. 5000/= from the defendant, shows transparently that the 24.2.1992, he entered into the sale agreement to purchase reversionary interest in the suit property, in respect of which he paid part payment os shs. 130,000/ = agreed purchase price was shs. 420,000/= of which the balance of shs. 290,000/= was agreed to be paid in two instalments. The first instalment of shs. transferred in the names of the defendant, (See Exh. P3). as "Mukasa") TZ0 defendant recognised Mukasa as his new land-lord and consequently on 150,000/= was to be paid on 14.3.1992 and the last instalment of shs. wherefor, the title deed was deposited with the defendant as a security. The 140,000/= was to be paid on 18.4.1992. The suit premises were then to be

By Exh. P4. plaintiffs by M/S Sebalu and Lule Advocates, Advocates of the defendant, the fact of the purchase of the reversionary interest by the defendant was admitted. a letter dated 14th August 1995 addressed to the Advocates of the

The question is whether, when the defendant and Mukasa entered into the contract to purchase the reversionary interest in the suit premises, the defendant lessee/purchaser ceased to be lessee. Learned Counsel for the plaintiffs submitted "^0 definition of the term "lease" in Osborn Oxford Dictionary at page 1 98, as meaning fixed period, usually with reservation of rent, wherefore. Counsel argued correctly in my view, that a lease is an estate to a specific period, whereas, by purchase of the reversionary interest the lessee/purchaser would obtain an estate for an indefinite period. The apparently two different estates could not c-subsist in the lessee/purchaser as the owner as well as the lessee. that the lessee/purchaser ceased to be lessee as a new relationship between the a conveyance or grant of property to last for a long term or a number of years or parties of vendor/purchaser came into existence. Counsel referred court to the

In regard to the question under consideration the plaintiffs' adduced unchallenged /GO evidence to prove that the defendant failed to pay the balance of the contractual purchase price. In his evidence the defendant conceded that he did not fully pay paragraph 4 of Exh. P4 in which the fact of the purchase of the reversionary interest was admitted. the purchase price of Shs. 420,000/ = . The concession was corroborated by

On the other hand, the learned counsel for the defendant in apparent departure from paragraph 4 of the Written Statement of Defence, submitted that the contract sell the suit land as it was not registered in his names and that he did not have Letters of Administration to be able to have locus to sell the land because the owner Gabriel G. Galabuzi had died, adding that a valid contract could only have been entered into between the Administrators of the estate of Galabuzi and the was void and therefore a nullity because Mukasa the vendor did not have locus to defendant.

This could very well have been so, more so, as the defendant according to his own evidence knew the Administrators well and by their name. However, he chose to pay rent to Mukasa whom he recognised had capacity to receive it under the lease also aware. agreement and that the Administrators were aware, and that the 1st plaintiff was

From the defendant's own evidence, I find that the defendant chose or elected to pay rent to Mukasa for the reason that he recognised him as having capacity to / "2^0 being administered by the Administrators for and on his behalf. The defendant did not disclose in his evidence the reason why he did not pay rent to the Administrators. By selecting to pay rent directly to the late Mukasa, he recognised him as virtually the owner of the suit premises. It was for that very reason that he proceeded to enter into, contractual relationship with him to purchase reversionary interest in the suit premises. receive it as the beneficiary of the estate of his late father Galabuzi which was

Consequently, in my view, as a matter of law, this suit falls within the doctrine of estoppel by election which states that where a man has an option to choose one or other of two things, when once he has made his election, it cannot be retracted. It is final and cannot be altered (see Scraf vs. Jardine [1882] 7APP case 345 at 360). A party cannot say at one time that the transaction is valid and at another that it is invalid for the purpose'of advantage (see Ambu Nair v. Kehi Nair say

## 11\_933] 35 BOM L. R

In this present case the defendant elected to pay rent to Mukasa under the lease agreement to which he was not a party, instead of paying it to the Administrators of the estate of the late Galabuzi who, and the defendant were parties to the lease agreement. This was recognition of Mukasa as the owner of the suit premises. Mukasa has no locus to sell reversionary interest in the suit premises in respect of which the defendant elected to pay him rent pursuant to the lease agreement. Nor can he be heard to say that the lease agreement subsisted when he and Mukasa subsequently executed the contract dated 24.2.1992 to purchase reversionary interest in the suit premises (see Exh. P3) and paid Shs. 130,000/= as part payment of the contract purchase price wherefore, the vendor released to him the title deed as a security, but which he breached by failure to pay the balance of Shs. 290,000/ = . In my view, on the execution of the breached contract by the defendant, the lease agreement ceased to exist. What remained to be fulfilled was payment of the balance of the purchase price, Shs. 290,000/= after which the transfer of the suit premises was to be made to the defendant, since thee certificate of title was already in his possession as security for the part payment of the purchase price he had paid. The defendant is consequently estopped by the doctrine of election to say that

In my view the principle that an agreement cannot be allowed be allowed to stand if made on common mistake is not applicable to this present case for lack of evidence to establish the common mistake. Counsel for the defendant's further

If the vendor did not have the certificate of title to sell the suit premises, how shows that his intention to sell the reversionary interest must have been by consent of the Administrators of his late father's estate. argument that the defendant challenged the vendor to produce the certificate of title and that he failed is not correct or true as it is contradicted by the fact that the vendor gave the certificate of title to the defendant purchaser as security on payment of Shs. 130,000/ = as part payment of the purchase price, (see Exh. P3). come that he produced it and gave to the defendant purchase as security. This

In answer to learned counsel for the defendant's argument that the defendant has developed the suit premises and build a Commercial building on it, the parties to follows; the Lease Agreement Exh. P2 agreed in the last but one paragraph thereof as

> case of non-payment by the Lessee of the money stated above, and the Lessor shall not be responsible for the loss that shall be occasioned." "The Lessor shall have powers to stop any work done on this land in

In my view, the phrase "to stop any work done on this land" would very well include to stop use of any building built on the land for non-payment of rent by the Lessees, under the lease agreement.

stayed on the suit land since 1962, and that he had build there on a commercial building, and submitted d that a person with such development would suffer serious personal consequences if he is evicted, and further that the defendant be granted relief from forfeiture. He cited and relied on Section 27 of the Judicature Statute (No. 13 of 1996) and on Civil Appeal No. 6 of 1989, Butaqira vs. Deborah Namukasa [1992] VI KALR6. In this present case learned counsel argued or pointed out that the defendant had

The relevant provisions of section 27 of the Judicature Statute 1996, provides;

" 27. (1) where a lessor is proceeding by action or otherwise , to enforce a right of re-entry or forfeiture for non-payment of rent, the lessee, his or her executors, administrators or assigns may, in the lessor's action or in an action brought by himself or herself apply to the High Court for relief.

(2) The High Court under subsection (1) of this section may,

(a) grant any relief it considers fit on such terms as to costs, including the granting of an injunction to restrain any further non-payment of rent as it thinks fir; or expenses, damages, compensation, penalty or otherwise

**(b)** Refuse the relief sought as it thinks fit."

| am persuaded to agree with the argument that section 27 of the Judicature Statute as reproduced above is not applicable to this present case. In that section the power of this court to grant relief against forfeiture is limited to cases of nonpayment of rent (see Butagira vs. Deborah Namukasa Civil Appeal No. 6 of 1989 at page 19 (supra). This case before me is a case of breach of contract and has nothing to do with non-payment of rent, since the lease agreement (Exh. P2) $2_{BC}$ ceased to exist on the execution of the contract and payment of Shs. $130,000/$ = as part payment of the purchase price. The Lease Agreement had to give way for the contract to purchase the reversionary interest in the suit land since the two estates could not co-exist. It would appear to me to be contrary to natural justice that a party should breach his own contractual by which he sought to own the suit land by his own breach and seeks relief against forfeiture. I am not satisfied that on his evidence, the defendant made out a case to show that the loss of the suit land would have serious personal consequences on him apart from the loss of the commercial building he build on the suit premises.

In the result judgment is passed in favour of the plaintiffs against the defendant $\mathfrak{g}_{\mathfrak{h}}$ and hereby make orders and or declare that the plaintiffs are the owners of the suit land and that the defendant vacates. The suit land within six months from the date of this judgment and that the Registrar of titles doth cancel the lease on the certificate of title deed and taxed costs of this suit are awarded to the plaintiffs.

It is so ordered. Alaanma A. O. Ouma J U D G E $7/2/1997$

Judgment read and signed in open chambers in the presence of Court: counsel for the plaintiffs and in the absence of counsel for the defendant.

A. O. Ouma $U \quad D \quad G \quad E$ 712/97

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