Wesigye and Another v Basudde (Civil Suit No. 790 of 2017) [2022] UGHCLD 211 (27 October 2022)

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

### (LAND DIVISION)

## **CIVIL SUIT NO.790 OF 2017**

#### $\mathsf{S}$ 1. WESIGYE BASINGIRE LILLIANE

### **EDITH** 2. KUSASIRA \*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*

### **VERSUS**

APOLLO BASUDDE WASSWA:::::::::::::::::::::::::::::::::

Before: Lady Justice Alexandra Nkonge Rugadya.

<u>Judgement</u>. (Exporte)

### Introduction:

The plaintiffs' claim against the defendant is for specific performance of a contract to handover 15 certificate of title previously registered as **Block 167 plots 845 and 805,** to enable the plaintiffs process their certificate of titles or in the alternative if the residue certificate of title is not available, an order that new certificates of title for **Block 167 plots 2394** and **2395** be issued by the Registrar of titles and vesting the said titles to the plaintiffs respectively; general damages for breach of contract; and costs of the suit.

#### 20 **Brief background:**

### Contention by the 1<sup>st</sup> plaintiff:

The 1<sup>st</sup> plaintiff, Mrs Wesigye Lillian by an agreement dated 30<sup>th</sup> October, 2005 bought two acres as a kibanja interest from one Khalid Kagudde on land of the defendant at a sum of $Ug. x$ 5,200,000 (Uganda shillings five million two hundred thousand).

25 It was also her contention that in 2007, she had approached the defendant, Mr. Apollo Basudde Wasswa, who was the landlord of the land that she had purchased the kibanja interest on, intending to acquire from him registered interest which the defendant had agreed to do and obtain in her names a certificate of title.

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That on 23"fJune, 2007, the defendant rcceivcd thc sum of Ug. x 7,5OO,OOO (Ugandd shllllngs one mllllon ffve hundred thousa'rnd only,f having agrced that the balance would be paid after surveying the land, which balancc was later paid to him.

# 4! plqlntl,Ifselo,tm:

5 For Kusasira Edith, thc 2ql plaintiff, it is claimcd that on the 14'h ofAugust, 2008 she purchascd a kibanja on the defendant's land from a one Nunu Mubiru at the sum of Ug.x 5,OOO'OOO/= (Uganda Shtlllngs JEue nllllon only).

On thc 27rh Junc, 2009 she purchased land from thc dcfcndant aI Uq. X3,OOO,OOO (Uganda Shllllngs three rmlllTorr onlg) and. the defcndant promised her she would know the mcasurements after the land had been survcycd.

The plaintiffs claim that after the purchase of the bibanja interests, they took possession of their respective pieces of lald ald have since been in occupation, having paid the defendant/land owner to process for them the titles.

ln 2010, the defendant caused the land to bc survcyed and aftcr thc survey the land was dividcd into several plots. After the subdivis'ion, the plaintiffs obtained deed prints which showed that the 1" plaintiffs land fell on plot 2394 and on plot 2395, for thc 2"d plaintiff. 15

The plaintiffs contcnd that after getting the decd prints, thc dcfcndant signed the transfcr forms for the plaintiffs to enable them get their own titlcs. I lowever the defendant did not give them thc duplicate certificate of title for the purposes of transfcr; and has not delivered the same to date.

- That despite the fact that the plaintiffs had already paid the transfer fees and stamp duty the defendant who kcpt on dodging them has sincc failed to fulfil the promise of giving them their respective certificates oftitle. That his failure to mcct thc obligations under the contracts, despite sevcral remindcrs by the plaintiffs has as a result grcatly inconvcnicnced them. 20 - This case had been filed in 2O17. Thc dcfcndant howcver did not lile a defence although he attended some of the proceedings. The parties at some point also made an attempt to cntcr into a consent, which they never concluded. )q

On 27tr, May, 2021 upon praycr made by thc plaintiffs' counscl, this court granted the order to proceed expqrte upon satisfying itsclf that propcr scrvice had bcen cffected onto the defendant.

# Represe^t.ation:

30 Thc plaintiffs wcrc represcntcd hy M/s Pearl Aduocqtes & Solicitors.

2 ,-b%

## Issues:

The plaintiffs in their scheduling notes raised the following issues for determination:

# 1. Whether the plaintiffs are entitled to certificate of titles for their land?

# 2. What are the available remedies to the parties?

$\mathsf{S}$ The plaintiffs relied on the evidence of two witnesses **Pw1** Wesigye Basingire Lillian, the $1^{st}$ plaintiff and **Pw2**, Kusasira Edith, the 2<sup>nd</sup> plaintiff. The plaintiff also filed joint submissions which I shall make reference to.

# Analysis of the law and evidence:

## Issue 1: Whether the plaintiffs are entitled to certificate of titles for their land?

10 The law:

The onus in civil cases rests on the plaintiff who must adduce evidence to prove his or her case on the balance of probabilities if she is to obtain the relief sought. *(Refer to Sections 101-103)* of the Evidence Act, Cap.43. Seea also: Lord Denning in Miller versus Minister of Pensions (1947)2 ALL ER 372 at page 373).

### 15 Section 10 of Contracts Act, 2010 provides,

"(1) A contract is an agreement made with the free consent of parties with capacity to contract, for a lawful consideration and with a lawful object, with the intention to be legally bound.

(2) A contract may be oral or written or partly oral and partly written or may be implied from the conduct of the parties.

(3) A contract is in writing where it is-

(a) in the form of a data message;

(b) accessible in a manner usable for subsequent reference; and

(c) otherwise in words."

25 Section 33 (1) of the Contracts Act, 2010 provides that parties to a contract shall perform or offer to perform their respective promises, unless the performance is dispensed with or excused under the Act or any other law.

Learned counsel for the plaintiffs referring to the law governing contractual relationships and to the case of Greenboat Entertainment Ltd vs. City Council of Kampala H-C-C-S No.0580 of

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2OOg submitted in this case that thc plaintiffs entered into sale agreements with the defendant respectively on 23.,r June, 2OO7 and 27th Jnne, 2OO9.

That once the parties entered into the above arrangements, they were committed to the performance of their respective part of the obligations as dictatcd by the terms therein and that

5 any failure to do so would amount to a breach.

Counsel furthcr cited Black's Law Dictlonary Sth Ddltlon p,g 777 and thc casc ol Nakqna Tradlng Co. Ltd as. Co.ffee Marketlng Bodrd Ciuil Suit No. 737 ol 1991 whcrc breach of contract is dcfincd as failurc by onc or both parties to fulfill thc obligations imposcd by tcrms of the contract.

The issue for court to consider thercfore was whether or not thcrc were valid and enforceable contracts between the plaintiffs and the defendant and if so, whcther any breach was committed to merit the remedies sought. 10

PurI Wesigre Basingire Lillian testificd that she purchased ftibarya situatc at Ndab:rzadde from Khalid Kagudde at a sum of Ug.x 5,2OO,OOO/= (Uganda shllltngs five tnllllon tuo hundred

thousa.nd. only) in cash and was givcn vacant posscssion. 15

She relied on a copy of the handwritten salc agreement, dated 30rh October, 2OOS.(PExh 1(a)) and translatcd version PExh 1(b). T}:,e agreement indicatcs that the area of thc kibanTa sold to PurI was two acres,

The transaction under which the full amount had been paid had been witnessed by three people, one ofwhom was indicated as Kityo Stephen, the chairman. The sale agreement between the two also bears the stamp of the Lc. 20

She further stated that the defendant who was the landlord had upon rcquest made to him agreed to sell to her the legal interest, that would enable hcr to acquire the certificate of title. The total agreed sum of Ug. Shs. 3,OOO,OOO (Uganda Shllllngs three mllllola o^lg) h,ad been paid

in five instalments. ,q

> Ug.x 1,5OO,OOO/= (Uganda shillings one rnllllon ffve hundred thousold only) rvas paid on various dates bctwccn 23.,rJunc, 2OO7 and 16'h May, 2OO9.

> The 1\$ plaintiff also presentcd in evidcnce PExh. 2, a copy ofthe sale agreement which proved that the abovc payments werc also duly acknowlcdged by thc defendant.

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# Evidence for the 2"d pld.intiff:

The 2Nr plaintiff on her part tcstifying as Prr2 stated that shc purchased from one Nuhu Mubiru a kibanja at Ndabazadde Nangabo Kyadondo, land that ncighbors that of 1"t plaintifl's on thc <sup>146</sup>of August, 20O8, at the sum of Ug. x 5,OOO,OOO (Uganda shllllngs lTue mllllon).

A copy of the sale agreement PExh,7 dated 14rh August, 2008 was adduced as her evidence that she had acquired from thc former lcibory'a owner the said interest, upon full settlement of thaL sum as consideration.

The agreement which was witnessed by the ls ptaintiff and Khalid Kaguddc, who had sold hcr {l plaintiffl lh.e kibanja, described the bordcrs of t}le kibanja for Put2. A copy of the sale agreement dated 27s June, 2009 lP. Exh.&A1 was tendered in as Pur2's evidence that <sup>a</sup> subsequent transaction was entered betwecn her and the defendant for a sum of Ugx 3,OOO,OOO/= as the purchase sum for the mailo intercst.

It was signed by both sides and witnessed by two other people. The above transactions invariably between the former bibanja owners and the plaintiffs on the one hand and the subsequent ones between the plaintiffs and the defendant as the mailo interest owner on the other hand, were

never disputed.

L0

The evidence adduced by both the plaintiffs in the view ofthis court meet the required standard for a valid contract. Through that evidence the plaintiffs were able to satisfy court that they had each entered into valid agreements with the defendant for the sale of the suit land, each having

bought both the kibanja. By failing to file his defence and allowing the plaintiffs to take possession of the land, the defendant was not at liberty to deny that the transactions had taken place and later sanctioned by him. 20

The plaintiffs further testified that the defendant promised to process for them certificate of titles and a survey to be made for the land. In 2010, the defcndant also signed a mutation form for each of the plaintiffs, suweyed and an area schedule presented to reflect the subdivisions, upon which the title deeds were also created.

The l.t plaintiff stated that her plot was markcd as plot 2394 whilc that of the 2",r plaintiff was marked as plot 2395 Kgadondo land at Kiwale Gagazc. Copics of the arca schcdule arrd decd plans were adduccd into cvidence as P. Exh, 3 and P. Exh,4 and a mutation l,'orm, P,. Exh.9.

The plaintiffs further testified that thc defendant issued each with signed transfer and consent to transfer forms adduced in evidcnce as PExh. SA' and, PExh 5. B' for the l plaintiff, for the land comprised in plot 2394, Block 767. 30

<sup>5</sup> 0"r7

$\begin{array}{c}\n1 & \mathbf{y} \\ 2 & \mathbf{x} \\ \hline\n3 & \mathbf{y}\n\end{array}$ P. Exh,77A' and. 778' werc the equivalcnt forms for thc 2\*r plaintiff, signcd by thc defendanl 13th April, 2010, for the land he sold to her, compriscd in plot 2395, Block 767. The plaintiffs also each paid stamp duty as indicated in the transfcr rcccipts, introduccd into evidcnce as PExh 6 o;nd. PExh 12, respcctively.

5 This was sufficient evidence that thc plaintiffs who wcre already in occupation and utilization of the land had fulfilled their part of the obligation under the contract and wcre allowed to occupy the land.

It was left for the defendant to present his duplicate ccrtificate of title to enable the transfer of the land into their names which step as counsel for the plaintiffs duly submitted, thc defendant had chosen to ignore.

The defendant therefore failed to help the plaintifs achieve the objective as intended between them under the contract, and in so doing committcd a breach of the contract. fssue IVo. , is therefore resolved in favor of the plaintiffs.

# Issue 2: frylllLt qre the q!al!4-b\_le reqleiig1?

In the case of Ronnld Ka.slba,nte u shell (u) Ltd. HCCS No. 542 ol'2006 reported ln (2OO8) HCB 162, it was notcd that breach of a contract confcrs a right of action for damages on thc injured party. 15

It entitles that party to treat the contract as discharged if the othcr party renounces the contract or makes its performance impossible or substantially fails to perform his promise. Thc victim is left with an option of suing for damages, trcating the contract as discharged or seeking a discretionary remedy.

The defendant in this case had an obligation to ensurc that the plaintiffs obtained thc ccrtificatc of titlcs to plots 2394 and 2395, in a bid to fullil his obligation of causing and cffccting thc transfers of the titles to the plaintiffs, which hc never did.

As earlier noted, the evidence led by the plaintiffs remained undisputed by thc defendant and in the absence of any other evidence to the contrary therc is hardly any doubt that there had becn failure by the defendant to execute thc duty hc owed to the plaintiffs. 25

Thc plaintiffs sought for thc following rcmedies:

## -1. Speciflc oerforrnance of the aoreement

The plaintiffs' prayer was for specific performance and orders the defendant to provide the certificate of title to enable the plaintiffs transfcr plots into their names-30

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In the alternative, the plaintiffs prayed that the appropriate orders be made against the defendant for the ends of justice; and for the registrar of titles to issue certificates of titles into the plaintiffs' names respectively for **plots 2394 and 2395**.

The remedy of specific performance is provided for under **Section 64 of the Contracts Act** $\mathsf{S}$ which provides:

> (1) Where a party to a contract, is in breach, the other party may obtain an order of court requiring the party in breach to specifically perform his or her promise under the contract.

(2) A party is not entitled to specific performance of a contract where-

- a) it is not possible for the person against whom the claim is made, to perform the contract; - b) the specific performance will produce hardships which would not have resulted if there was no specific performance; - c) the rights of a third party acquired in good faith would be infringed by the specific performance; - d) specific performance would occasion hardship to the person against whom the claim is made, out of proportion to the benefit likely to be gained by the claimant; - e) the person against whom the claim is made is at the time entitled, although in breach, to terminate the contract; or

$f$ ) the claimant committed a fundamental breach of his or her obligations under the contract; but in cases where the breach is not fundamental, specific performance is available to him or her subject to his or her paying compensation for the breach.

In the instant case, the defendant issued both plaintiffs with signed transfer forms, an application for consent and mutation form, promising to give them their respective titles after 30 payment of stamp duty and registration fees in order for them to start the processing of certificate of titles for their plots. The plaintiffs also have in their possession the blue prints to their respective plots.

The defendant in this matter not only failed to file his defence but also failed to fulfill his part of the bargain under the agreements and to finally conclude the process of obtaining the certificate of titles to the plots claimed by the plaintiffs.

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Under those circumstances, an order for spccific performancc may providc excusc for further delay over matters which were settled but never sealed, more than a decade later, due to the failure attributed to the defendant.

This court however also did note that there wcrc somc discrepancies detcctcd in thc description of the actual land under dispute. In thc plaint thc disputcd land appears as land prcviously registcrcd for block 767, plots 845 qnd.8O5, out of which plots 2394 o.nd 2395 had becn created. The actual location of the land was not indicated in thc plcadings.

The land is however described as Ko.bubu Kluale, Block 767, Kgadond.o, as per the area schedule (PExh 3). In the summary of facts filed on 22,"r Scptembcr, 2021 , and witness statements liled by the plaintiffs, it is described as land located in Ndqazo.bazqdde Zone I\*7 though the titles claimed are for plots 2394 a;nd 2395, block 767, Kgadond,o l<luo.le Gagazo.. Court notes that the names of Nangabo, Kiwale and Ndaazabazadde kept coming up in the different documents. 10

Thus whelher or not the descriptions as spclt out in thc said documents relicd on by thc plaintiffs were for thc same kibanja/land was not propcrly rcvealcd to court. Ilut what was clcarly established and remained undisputed by thc defendant was that Block 767, plots 2394 mec,suflng 0.994 and 2395 meosuri'r.g 0,774, Klwale reflected in thc area schedule PExh 3 and the transfer and conscnt forms /PExh 5A and 58 o.nd. PExh 77A and. IIB) originally bclonged to him as thc mailo owncr. 15

Thcrcfore by him signing the transfcr and conscnt and mutation forms in thc namcs of the plaintiffs, he had duly acknowledged that thcy had through his consent, rightfuUy acquircd thc land comprised in Block 767, plots 2394 merl.surl^g 0.994 and.2395,Kabubu Ktlz,lale. 20

This court therefore has been provided with no basis as to why it should not exercise its inhcrcnt powers as prayed, under sectioz 33 ol the Judlcahtre Act, ar.d. sectlon 98 of the Ctull

Procedure Act, Cap. 77 and by virtue ofsectlon 777 oJ the Reglstra;tton oJ tltles Act to direct the office the Commissioner, Land Registration to cffccl thc transfers of ptots 2394 and 2395 Block 767, from the names of the defcndant into thosc of thc plaintiffs. 25

#### General-damaaes:

The plaintiffs are also seeking for general damages that as a result of the actions and omissions of the defendant, the plaintiffs have lost income on severa.l occasions in trying to trace for the defendant and further costs in hiring a lawyer for professional advice, filing papers and representation in court. The plaintiffs on that basis each sought an award of Ugx 2S,OOO,OOO/= as general damages.

<sup>8</sup> o\*z

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Under sectlon 67 (1) of The Co'r-tra.cts Act, 7 of 2O1O, whcrc thcre is a brcach of contract, thc party who suffers the breach is entitled to reccivc from thc party who breaches the contract, compensation for any loss or damage caused to him or her.

Thc rule of the common law is that wherc a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to bc placcd in thc same situation, with respcct to damages, as if the contract had becn performed. (see Robinson v. Hqrman (1848) 1 Exch 85O dt a55, [1843-60] All ER Rep 383 at 385 and l(tbtmbs Rice Ltd o, Urno'r Sallm, S. C. Clull Appeal No, 77 ol 79921

General damages are the direct natural or probable conscqucncc of the wrongful act complained 10 of and include damages for pain, suffering, and inconvcnicncc and anticipatcd futurc loss. (See Storrns us. Hutchlnson [7905] AC 575)

While assessing general damages, the court should mainly be guided by the value ofthe subject matter, the economic inconvenience that the respondent may have becn put through and the nature ard extent of the injury suffered. lsee: Ugand.a Commerclal Bank vs. Deo Klgozl

#### (2OO2)1 EA soq. 15

ln the instant case, this court takes into consideration the fact that following the transactions in 2OO7 the plaintiffs have been in possession for more than a decade, each utilizing the land without any interruption. What remains to be achieved is giving full cffect to thc respectivc agreements, to be done by securing the certificates of title for the land occupied by each plaintiff.

It is the view held by court that the unccrtainty in waiting for the defendant to take necessary action and the inconvenience occasioned by him to each of thc plaintiffs as a result of the defendant's inaction, entitled each to a fair award of general damages. 20

### Costs oJ the suit.

Sectlon 27 of the Clall Procedure Act providcs that;

'costs qre dlscretlon of the court. Subsection (2) oJ the Act provid.es that the costs oJ ang (:ction, couse o7 other mqtter or issue shall Jollou the euent unless the court or Judge sholl tor good recsons otheruise order. 25

In the instant case, the plaintiffs being the successful party should be awarded the costs of the suit.

30 Judgment is accordingly entcrcd for the plaintiffs in thc following tcrms

<sup>9</sup> U,,-ry

- 1. The Commissioner, land Registration shall register the land comprised in Block 167, plot 2394 Kabubu, Kiwale Kyadondo into the names of Wesigye Basingire Lillian. - 2. The Commissioner, land Registration shall register the land comprised in Block 167, plot 2395, Kabubu, Kiwale Kyadondo into the names of Kusasira Edith. - 3. The defendant shall pay a sum of Ugx 20,000,000/=, to each plaintiff as compensatory award of damages for breach of the contract. - 4. The defendant shall pay a sum of Ugx. 5,000,000/- (five million only) to each plaintiff as general damages. - 10

$\mathsf{S}$

- 5. The awards in orders 3 and 4 above shall attract interest of 15% from the date of delivering this judgment, till payment is made in full to the plaintiffs. - 6. The plaintiffs shall each be entitled to costs of the suit.

I so order.

Alexandra Nkonge Rugadya. **Judge** 25<sup>th</sup> October, 2022.

Delivered by email<br>Abbody<br> $27/10/2022$