[2025] UGHCLD 136

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION)

#### **CIVIL SUIT NO.2383 OF 2016**

#### (FORMERLY NAKAWA HIGHCOURT CIVIL SUIT NO. 355 OF 2013)

LABAN KURAMA :::::::::::::::::::::::::::::::::::

#### **VERSES**

ZION CONSTRUCTION LTD :::::::::::::::::::::::::::::::::::

#### **IUDGMENT**

### BEFORE: HON. LADY JUSTICE NABAKOOZA FLAVIA. K

The Plaintiff sued the Defendant seeking compensation for the value of land at the market value while he surrenders ownership, and costs incurred in constructing the demolished house; specific and general damages; and costs of the suit.

$\mathsf{S}$ The Plaintiff alleges that on $04/06/2012$ , he entered into a sale agreement with the Defendant in respect of land comprised in Busiro Block 474 Plot No. 243 at Maya estate situate at Bulwanyi Mwanya in Wakiso District (hereinafter the suit land) at 5,400,000/. That he paid full purchase and Ugx $350,000/-$ as transfer fees to have the land transferred into his name. That subsequently, he took possession of the suit land by constructing a residential house with a view of making it his retirement 10 home. That at the time of roofing, unknown people approached him claiming to be previous owners of the suit land who were not compensated by the Defendant before taking it. That the said persons demolished his house to ground level and the Defendant agreed to compensate him fully but later changed, stating that they will 15 compensate him only up to wall plate level. That it is unsafe for him and his family to reside in the same area with the mob which threatened his life.

The Defendant filed a written statement of defence wherein it denied the contents of the plaint. It pleaded that the Plaintiff's certificate of title was made and transferred into his names; and that the previous owners of the suit land to wit; Musisi Mohammad and the family were fully compensated and denied approaching the Plaintiff complaining about compensation or demolishing his developments. That whoever demolished the Plaintiff's house could have had their own problems for which the Defendant is not liable. That the Defendant never agreed to compensate the Plaintiff, except that it offered to help the Plaintiff re-build his house up to wall plate, on humanitarian grounds and as a gesture of good customer

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care so as protect its business. That the offer has elapsed since it was not taken by the Plaintiff.

- Representation: The Plaintiff was represented by Counsel Okong Innocent of M/s 30 Kob Advocates & Solicitors while the Defendant was represented by Counsel Sseguya Samuel M/s Sseguya & Co. Advocates. Counsel for the parties filed written submissions, which I have considered in this judgement. - During scheduling conference, the parties agreed on the following issues for 35 resolution by this court; - - Whether the Plaintiff has a cause of action against the Defendant.? i. - Whether it was the previous owners of the suit land who demolished the $\dddot{\text{u}}$ . Plaintiff's developments? - Whether the Defendant had compensated the previous owners before the iii. 40 Plaintiff purchased the suit land? - Whether the Plaintiff spent a total of 50,574,800/- (Fifty Million Five iv. Hundred Seventy-Four Thousand Eight Hundred Shillings only)? - What remedies are available to the Plaintiff? $\mathbf{V}$ . - 45

Given the circumstances of this case, I invoke Order 15 rule 5 of the Civil Procedure Rules and Section 98 of the Civil Procedure Act and add one issue to the effect that; -

Whether there existed an enforceable contract between the Plaintiff vi. and Defendant?

At the hearing, the Plaintiff testified as PW1, while the Defendant led 2 witnesses who included - Genza Godfrey who testified as DW1, and Musisi Muhamad who testified as DW2.

Documentary Evidence: The parties presented documents which were admitted as exhibits PEX1 to PEX5 for the Plaintiff; and exhibits DEX1 to DEX3 for the Defendant.

At the closure of the hearing, the court visited the locus in quo, inspected the suit 60 land, drew a sketch map and recorded its observations. All shall be relied on in this judgment.

## **Evidence of the Parties**

PW1 testified that he heard about the Defendant in 2012 when it was advertising 65 for sale of the suit land. That he then proceeded to its offices along Entebbe road to inquire more about the same. That he later inspected the land and purchased it at Ugx $5,400,000/-$ ; and later paid Ugx 350,000/- to aid in its transfer into his name.

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He testified further that he took physical possession and started constructing a residential house but previous owners demolished it to foundation level because the 70 Defendant had not compensated them.

Furthermore, that paragraphs 1 and 2 of the sale agreement dated $4/06/2012$ provided that the Defendant had authority to sell land and had good title to the same 75 and that the Defendant warranted to rectify any defects in ownership to the suit land at its own costs or refund the money as soon as possible. That after the demolition, the Defendant agreed to compensate him for the costs incurred during construction but later changed its mind and offered to compensate him only up to the wall plate level. That the previous owner (DW2) received full payment from the Defendant on $7/08/2013$ after PW1 had purchased the suit land. He also stated that he had 80 spent about $50,574,800/-$ at the time of demolition.

During cross-examination, PW1 stated that the people who demolished his house were many, and he failed to find out who they were since none confronted him face to face. That in November 2013, he reported the matter to police against the Defendant because he suspected that it was the previous owners who destroyed his house. That he had no approved plans before constructing but the house was not illegal; and had 3 bedrooms, dinning, kitchen, 2 bathrooms and a front shed.

90 During re-examination, he maintained that the Defendant had assured him that the suit land was free from third party claims, and was responsible for his loss.

DW1 confirmed that the Defendant sold a plot of land out of plot 243 Block 474 to PW1. That the plot was vacant and was handed to PW1 free from any encumbrance since the Defendant had compensated the previous occupants who vacated it with their family. That he was surprised when he learnt that PW1's house had been destroyed and immediately consulted DW2 who denied being involved since he was contented with what he got and what was agreed upon. That he suspected that whoever destroyed PW1's house had their own agenda with PW1. Further, DW1 stated that the Defendant sympathized with PW1 and offered to help him reconstruct the house up to its wall plate level, but PW1 rejected the offer and the offer lapsed when the Plaintiff decided to file the instant suit. That the Defendant could not have agreed to fully compensate the Plaintiff without knowing the quantum.

Furthermore, that under the agreement, the Defendant agreed to rectify defects in ownership and capacity to dispose but not actions of unknown third parties.

During cross examination, DW1 testified that the Defendant acquired land from Nsubuga Gerald whose squatter was DW2. That the Defendant bought the mailo

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interest and then dealt with the said squatter whom it paid Ugx. 2,500,000/- on 20/04/2012. That exhibit DEX1 does not show full payment but paid DW2 in full on 7/08/2013 (Exh. D2). That he orally offered PW1 some money after his house was demolished which he refused.

Upon re-examination, DW1 told court that they only wished to help PW1 have the ground back by giving him materials like sand and brick, on humanitarian grounds.

DW2 testified that between 2011 and 2012, he was approached by the Defendant through DW1 with the aim of obtaining a mailo interest of which it was the registered proprietor. That he received a payment of Ugx 2,000,000/- and also got a certificate of title for Plot 518. That he was in good terms with the Defendant while following up on the progress of the survey, sub-division and transfer. That he never approached PW1 or any one claiming that he was never fully compensated or authorised any one to do it on his behalf. That he was never part of the unknown mob that raided and destroyed PW1 house as he merely heard of the incident.

During cross-examination, he stated that PW1's house was the first to be constructed and was on the portion he surrendered. That the compensation was paid to him in instalments, Ugx 500,000/- being the first instalment given on 28/04/2012 and the balance of 2,000,000/- was paid on 7/08/2013. He also testified that DW1 paid the said balance after the said demolition on $12/03/2013$ . At locus, he clarified that he had been paid half of the money at the time the Plaintiff's house was demolished.

### <u>Submissions by Counsel on Issue (i).</u>

Counsel for the Plaintiff relied on Section 101 (1) and 103 of the Evidence Act Cap 8 and the case of Oketha Dafala Valente Vs the Attorney General of Uganda HCCS No. 69 of 2004 to submit that the burden of proof lies on the person who wishes court to believe in the existence of a fact.

He also cited Auto Garage & Ors Vs Motokov (No.3) (1971) 1 EA 514 (CAD) which provides for the elements of a cause of action and argued that the court must only look at the plaint and its annexures when determining the same. He submitted that the Plaintiff enjoyed a right which was quiet possession of the suit land he purchased from the Defendant; that the right was interfered with by the former owners of that land claiming that they had not been compensated by the Defendant prior to selling the land to the Plaintiff; and hence making the Defendant liable.

150 In reply, Counsel for the Defendant cited the case of Joseph Senabulya Vs Maria Nakintu & Anor HCCA No. 84/2016 where Justice Victoria held that parties are bound by what they say in their pleadings. He argued that the Plaintiff pleaded that those who destroyed his house were an angry mob which came at night and that

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there is no evidence of identification of any person who was in that mob. That the Defendant disclosed the previous owners early enough and that the Plaintiff would have added him as a co-defendant which he did not do. That the Plaintiff was not certain whether it was the previous owners who approached him and demolished his house hence lacks a cause of action against the Defendant, who cannot be made liable to actions of unknown persons or an angry mob.

#### Determination of the Issue

The conditions upon which court determines the existence of a cause of action have been referred to by both counsel. Similarly, in Tororo Cement Co Ltd V Frokina International Ltd Civil Appeal No. 2/2001, it was held that "in order to prove there is a cause of action, the plaint must show that the plaintiff enjoyed a right; that the right has been violated; and that the defendant is liable".

It suffices to state also that the court determines existence of a cause of action on the assumption that facts pleaded in the plaint are true; and cannot enter into the evidence adduced by the parties as that would be determining the merit of the Plaintiff's allegation. Therefore, the court shall restrict itself to the plaint and its annexures (Mukisa Biscuit Manufacturing Co. Ltd Vs West End Distributors Ltd [1969] E. A; Ismail Serugo Vs. KCC & AG Constitutional Appeal No. 2 of 1998).

According to the plaint, the Plaintiff purchased a plot of land comprised in Plot 243 Block 474 from the Defendant at Ugx 5,400,000/- with an assurance that it was free from 3^rd party claims. That purchase, he embarked on construction but unknown persons claiming as previous owners of the suit land approached him and claimed that Defendant had not compensated them before taking the land. He also claimed that the Defendant agreed to compensate him but later changed its mind. He ably attached to the plaint a copy of land sale agreement between himself and the Defendant; a copy of a receipt from the Defendant acknowledging receipt of the purchase price and receipt showing transfer fees all dated 4/06/2012; and photographs of an uncompleted house and its demolition.

The above statements show that the Plaintiff had a right to obtain good title free from encumbrances from the Defendant; and that the right was violated, by none other than the Defendant. As such, I agree with the Plaintiff's Counsel that the plaint discloses a cause of action. This answers the first issue in the affirmativeI shall now first determine issues (ii), (iii), and (vi) before the rest of the issues

- Whether it was the previous owners of the suit land who demolished ii. the Plaintiff's developments? - Whether the Defendant had compensated the previous owners before iii. the Plaintiff purchased the suit land?

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#### vi. Whether there existed an enforceable contract between the Plaintiff and Defendant?

Counsel for the Plaintiff relied on the cases of Simoni Musoke Vs R [1958] EA 715 where it was held that 'in a case depending exclusively on circumstantial evidence, the court must find before deciding .... that inculpatory facts were incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt." He also cited John Bwiza Vs Patrick Yowasi Kadama CACA No. 35 of 2011 where it was held that "the standard of proof in all civil cases is such on the balance of probability." Counsel argued that DW2 did not provide cogent exculpatory evidence that he could not have been the one who demolished the Plaintiff's house as there could not have been any other individual interested in the land to the extent of demolishing the developments thereon.

In reply, the Defendant's Counsel argued that the issue at hand relates to 210 compensation and not completion of compensation. He submitted that by 4^th June, 2012 when the Plaintiff purchased the suit land, the known previous owners had received part of the compensation and relocated. That DW2 had moved off the land hence necessitating the Plaintiff to build on the vacant land. That if it was DW2 who had destroyed the Plaintiff's house, it was unlikely for the Defendant to go ahead and pay him the balance on 7^th August, 2013. Secondly, that even if DW2 had been 215 a party to the suit as a Defendant, he had no greater burden to establish his innocence than that of the Plaintiff to prove the allegations against him. Counsel argued that at all times DW2 stood in the witness box, the Plaintiff did not pin him as the person who approached him claiming he was not paid. 220

#### **Court's Analysis**

It is true that burden of proof rest on a party who desire court to believe the existence of a fact. Section 101 & 103 Evidence Act Cap 8.

225 In this case, it is undisputed that the parties entered into an agreement for sale of land comprised in Plot 243 Block 474, which is dated $4/06/2012$ .

DW1 testified that the Defendant bought a mailo interest and later dealt with the squatters thereon. He stated that although exhibit DEX1 does not show full payment to DW2, DW2 was fully paid on $7^{th}/08/2013$ under exhibit DEX2. This was corroborated by DW2 who testified that he was fully compensated for the suit land after PW1's house was demolished.

According to clause 1 of exhibit PEX1, the Defendant guaranteed to pass on title to the Plaintiff free from any encumbrance, third party interest or clogs. As such, it assured PW1 that the suit land was free from DW2's claims.

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However, the evidence shows that the Defendant extinguished DW2's equitable claim in the suit land about 14 months after the Plaintiff bought it (Wakabi Vs Asaba (CA No. 64 of 2008) 2010 UGHCCD2). For emphasis, the full compensation of DW2 occurred after the demolition of PW1's house, this can also be confirmed by exhibit dated 7^th August, 2013. On that basis, I disagree with Defendant's assertion that the suit land was free from encumbrances when it sold it to the Plaintiff. Consequently, this answers issue (iii) in the negative.

Considering the above, I do consider that the Defendant misrepresented to the 245 Plaintiff when it impressed to him that the suit land was free from encumbrances. According to William Kasozi Vs DFCU Bank Ltd HCCS No. 1326 of 2000, Byamugisha J noted that "when a document containing contractual terms is signed, then in the absence of fraud, or misrepresentation, the party signing it is bound by its terms." Further, Section 15 (1) of the Contracts Act Cap 284 provides that "where 250 consent to an agreement is obtained by coercion, fraud or misrepresentation, the agreement is voidable at the option of the party whose consent was obtained by coercion, undue influence, fraud or misrepresentation".

In this case, owing to the misrepresentation, I find that the contract between the parties was and is voidable.

According to Section 1 of the Contracts Act, supra, a voidable contract means an agreement which is enforceable at the option of one party to it and which ceases to be enforceable by law, and becomes void when it ceases to be enforceable.

In this case also, the Plaintiff avoided the contract with the Defendant after the destruction of his house and this suit supports that conclusion. In view of Section 1 of the said Act, the said contract ceased to be enforceable and became void. Consequently, I find that there exists no enforceable contract between the parties. Accordingly, issue (vi) is answered in the negative.

With regard to issue (ii), I agree with the Defendant's Counsel that the Plaintiff is bound by what he pleaded in his pleading. It is true that he pleaded that those who destroyed his house were an angry mob and specifically name no person. Similarly, he specified no person that destroyed his house in his evidence. Nevertheless, the evidence show that at by at the time the said house was destroyed, DW2 had an interest in the suit land and that the same was only extinguished after the demolition of his house. This makes it highly probable that DW2 orchestrated the demolition of the Plaintiff's house. As the Plaintiff's Counsel argued, it is improbable that any other uninterested individual could have done that. In view of that, I find issue (ii) in the affirmative.

Issue (vi): Whether the Plaintiff spent a total of 50,574,800/- (Fifty Million Five Hundred Seventy-Four Thousand Eight Hundred Shillings only)?

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The Plaintiff's Counsel relied on the case of **Hellen Ochan Vs Odur Willis HCCA** No. 50 of 2019 to support his argument that the Defendant breached the agreement especially on third party claims and therefore entitled the Plaintiff to treat the contract as rescinded.

In reply, the Defendant's counsel relied on the Court of Appeal decisions in **Eladam** Enterprises Ltd VS SG (U) Ltd (CA No. 20/2002), and KCCA Vs Nakaye [1972] EA 446 to submit that the items need to be specifically and strictly proved as required by law. That the Plaintiff did not adduce documentary evidence upon which to believe the claimed figures. That in absence of receipts or valuation report, it is difficult to believe the amount claimed.

PW1's testimony was that he had spent over $50,574,800/-$ at the time of demolition. He added that his house was at the root stage, had 3 bedrooms, dinning, kitchen and a front shed.

At the locus in quo, the court observed stones on the suit land; maize belonging the Plaintiff; and a foundation of a concrete structure.

300 The Defendant did not dispute the fact that PW1 had a house on the suit land which was demolished.

Nevertheless, the Plaintiff needed to lead evidence guiding the court on how he came to quantum of the claimed special damage. Without such evidence, it is difficult for court to assume the said quantum to be the truth of the matter.

The Defendant's Counsel argued that the Plaintiff needed to lead documentary evidence. However, Courts have recognised that oral evidence may also suffice to prove special damages (GAPCO (U) Ltd. vs. A. S Transporters Ltd., S. C. C. A No. 07 of 2007; Kampala City Council v. Nakaye (1972) EA 446; Hororanto Busulwa Ssalongo v. Abdu Senabulya & 5 Others, H. C. C. A. No. 7 of 2002). In this case however, the oral evidence adduced is not cogent to discharge the burden of proof on the Plaintiff. Therefore, if any quantum of damages is to be awarded, it should be considered as general damages, not special damages

Therefore, I agree with the Defendant's Counsel and find issue (iv) in the negative. 315

> The general damages are awarded for the pain or inconvenience suffered by the innocent party as a natural and probable consequence of the act complained about; and at the court's discretion (Kibimba Rice Company Ltd vs. Umar Salim SCCA No.7 of 1988; Stanbic Bank (U) Ltd vs. Hajji Yahaya Sekalega HCCS No. 185 of 2009).

> In this case, it is reasonable to believe that the Plaintiff suffered pain, and inconvenience as a result of being entangled in an unnecessary legal dispute which also involved the destruction of his house on the suit land. All that would not have

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happened had the Defendant disclosed to him the true status of the suit land. Therefore, the Plaintiff is entitled to general damages.

It is trite law that in determining the quantum of general damages, the court is guided by the value of the subject matter, the economic inconvenience that the innocent party may have been put through, and the nature and extent of the wrong suffered (Stanbic Bank (U) Ltd vs. Hajji Yahaya Sekalega HCCS No. 185 of 2009). In reaching any quantum, Court's intention is not to punish the Defendant, but rather to put the Plaintiff in the position he or she was prior the wrongful act **(Boschcon)**

## Civil & Electrical Construction Co., (U) Ltd vs. Salini Construttiri Spa HCCS No. 151 of 2008).

In this case, the subject matter is valued at Ugx.5,400,000. I note also that the Plaintiff suffered an economic inconvenience since he has been unable to use the said money for about 13 years now, and had invested more in a house which was demolished because of an encumbrance on the suit land. Lastly, the wrong in this case involves misrepresentation by the Defendant. Therefore, taking all those factors into account, I shall award an appropriate quantum of general damages to the Plaintiff.

#### 345 Issue (v): Whether there are any remedies available to the Plaintiff?

In view of the above findings, judgment is entered in favour of the Plaintiff in the following terms:

- The Defendant shall refund the consideration paid by the Plaintiff under the $i)$ avoided agreement dated $04/06/2012$ amounting to Ugx. 5,400,000 with - interest at a rate of 17% per annum from the said date until payment in full. $\dddot{\text{ii}}$ The Defendant shall pay Ugx. 350,000/ being money paid by the Plaintiff as

fees to transfer the suit land into his name.

- iii) The Defendant shall pay to the Plaintiff Ugx. $50,000,000/$ = (Fifty Million Shillings) as general damages to the Plaintiff. - 355 $iv)$ The Defendant shall pay to the Plaintiff costs of the suit.

Signed, dated and delivered at Kampala this $28^{th}$ day of $APRLL_{2025}$ .

Nabakooza Flavi Judge $\mathcal{S}$

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