[2014] UGCommC 232

# **tHE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA**

#### **(COMMERCIAL DIVISION)**

# **CIVIL SUIT NO. 334 OF 2011**

**ANDREW MAVIRI==== =PLAINTIFF**

**V**

#### **JOMAYI PROPERTY CONSULTANTS LTD DEFENDANT**

**(BEFORE THE HONOURABLE MR. JUSTICE HENRY PETER ADONYO)**

#### **JUDGMENT**

### **INTRODUCTION** .—

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*o* The Plaintiff filed this case against the defendant seeking special damages of Uganda Shillings Two Hundred Ninety Seven Million only (Ug Shs. 297,000,000/=) as unpaid commission and wages as q as Uganda Shillings One Hundred Sixty Six Million Nine Hundred Thousand only (Ug. Shs. 166, 900,000/=) being the value.---- — *If* ir *orr-pc* r>f land acquired bv the olaintiff from the bonafide ccupants and said to have been taken over by the defendant.

r>ipintiff case is that that he is a real estates' dealer/ageht and that in the course of his trade he had dealings with the defendant

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company through its managing Director whereby he sourced various pieces of land for purchase by the defendant company who is in the business of establishing estates for sale to the general public.

It the plaintiff's case that sometime in 2008 he sourced land from various owners who in turn sold to the defendant company and the defendant company having acquired the said land through his efforts he was entitled to his commission as a result based on oral agreement between him and the defendant company 's managing Director. The plaintiff further averred that in August 2008 he $\longrightarrow$ 10 negotiated and bought various pieces of land from various occupants to the tune of an area of approximately 16.69. The plaintiff states that the defendant forcefully took over the said land without paying for the purchase price or relinquishing the same to the plaintiff to date. The plaintiff therefore seeks special damages as $\frac{1}{2}$ unpaid commission and wages for the land he purchased from various persons for the benefit of the defendant and the value of 16.69 acres of land forcefully taken over by the defendant.

The defendant denied the plaintiff's claim for a commission and wages and money owed and due for any land at all. The defendantdid, however, admit that it did commission the plaintiff to acquire on its penait wir. Rabaziguruna's land comprised in Pleat 194 Plat 39 at Mbalala, Mukono District but stated that the plaintiff acted fraudulently by introducing himself as purchaser while acquiring interests in them yet he had been given by the defendant.

substantial amount of money to clear squatters and that the plaintiff was duly paid for his services. The defendant further averred that even for the land belonging to one Mrs. Joyce Mpanga, that is, Plots 8 and 42 the plaintiff was fully paid for the services he had rendered. The defendant did not admit taking over forcefullyany land from the plaintiff but maintained that for whatever land the plaintiff got for it, the plaintiff was duly paid. The defendant then counter claimed for Ug. Shs. $3m/$ = as excess money paid to the plaintiff plus the cost of the counterclaim on the basis of a $-10$ reconciliation of accounts between the plaintiff and the defendant.

#### THE LAW

The plaintiff has made various claims against the defendant and at the same time the defendant has made a counterclaim against him. In civil matters a party who makes an assertion must on a balance of probabilities. Therefore, in this matter before me, it is for the 15 plaintiff's to prove the assertions in his plaint that indeed he is entitled to what he is claiming in order for this Honourable Court to pass judgment in his favour as against the defendant. Likewise, the defendant has counterclaim against the plaintiff which it must also 20 prove. -

The proof by any of the parties before me would be in compliance with the law which in this case is the Evidence Act Cap 6 Laws of Uganda. The parties also must prove that there exist a contract

between themselves which are legal and that the said contract complies with the laws of Uganda. In the instant matter, there is no doubt that there are grievances emanating from either side and that the parties wish this Honourable Court to resolve the same since amicable settlement did not occur.-

In resolving the dispute between the two parties I will only deal with the relevant laws. The most important amongst these is the Evidence Act which guides on how a party aggrieved by the other must prove the issue it has brought before court.

. I N Section 101(1) of the Evidence Act CAP 6, Laws of Uganda;

Section $101(1)$

"...whoever desires any court to give judgment as to any legal right or liability dependent of facts which he or she asserts must prove that those facts exist..."

Further, the party so aggrieved must prove that the facts as in the instant case such that this Honourable Court would find in his favour.

This would be in compliance with Section 101(2) of the Evidence Act (cited above) and this section provides thus;

Section 101(2) of the Evidence Act;

#### *•••when it is a person is bound to prove the existence of any fact, said that the burden ofproof lies on that person..."*

herefore in resolving the disputes between the parties before me -hey must comply with the provisions of the law cite above.

# preliminary

### **AGREED FACTS**

At the scheduling conference of this case, the following were agreed facts which will not be further delved into;

- *It* (l)That the plaintiff was commissioned by the defendant to enter upon land comprised in Kyaggwe Block 184 Plot 39 at Mbalala to settle squatters. This is the land known as Kabaziguruka's **A** land. - (2)That the defendant purchased land in Kyaggwe Block 184 Plot 8 and 42 belonging to the plaintiff which was bought by the plaintiff from Mrs. Joyce Mpanga at Uganda Shillings Eight\_-1 Hundred Ninety Two Million only.(Ug. Shs. 892, 000,000/=).

### "^rtTTi\/n?. NTS FOR THIS SUIT

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court record. Both Both the plaintiff and the defendant provided trial bundles and these were accepted and formed part of the

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parties filed witness statements upon which the witnesses were cross examined. The plaintiff Mr. Andrew Maviri testified as a sole witness in support of his case while Mr. Freddie Egesa testified for the defendant. One Mr. Joseph Yiga Magandaazi, the Managing Director of the defendant filed a witness statement but did not turn- $-\varsigma$ up in court for cross examination. His witness statement was eventually expunged from court record on the appropriate application by counsel for the plaintiff.

#### **ISSUES AGREED FOR DETERMINATION**

At the scheduling conference, five issues were agreed by both sides $10$ and these were to be resolved determined by court. They are;

1. Whether the plaintiff is entitled to payment of Uganda Shillings Two Hundred Ninety Seven Million (Ug. Shs 297,000,000/m) as commission and unpaid wages.

2. Whether the plaintiff is entitled to payment for the 16.69 acres $\longrightarrow$ 15 he purchased from tenants by occupancy on Kyaggwe block 184 plot 39 (Kabaziruka's land)

3. Alternatively, whether the defendant is a trespasser on the hibania (occupancies) acquired by the plaintiff

4. Whether the defendant is entitled to the sums claimed in the counterclaim.

# 5. Remedies available to the parties.

# **RESOLUTION OF THE ISSUES**

will examine each issue individually and make finding on each.

# **ISSUE 1: WHETHER THE PLAINTIFF IS ENTITLED TO PAYMENT OF UGANDA SHILLINGS TWO HUNDRED NINETY SEVEN MILLION (UG. SHS. 297,000,000/=) AS COMMISSION AND UNPAID WAGES.**

*10 ■%o* It is the plaintiff's case that he was contracted on a commission basis to source pieces of land by the defendant. This are as per his claim in Paragraphs 4,5,6,7,9, 10, 17, 18 and 19 of his witness— statement which is on record. Generally he stated that he was asked by the defendant's Managing Director, Mr. Joseph Yiga Magandaazi, to solicit for land for purchase and That ne would oe paid a commission. In paragraph 6 of his witness statement, he lists out the various pieces of land he said he obtained for the— defendant. He singles out in Paragraph 7 the lands which he stated he was entitled to amongst others to a commission.. These included amongst others the land belonging to Mr. Stephen Kazooba where he was to get Uganda Shs. 100,000,000/= commission and the land belonging to Mr. Kiwanuka where ne would, similarly ger Uganda-— Shs 100,000,000/= commission. All in all these were and constituted part of the total commission he was claiming in this

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suit. The defendant did not deny any of these assertions as can be seen from the agreed facts but submitted that even though the Plaintiff sourced for land for it and was entitled to commission for work done, he was paid for what was due to him and had no further claim to make since he had no documentary proof that the said the $\mathcal{S}$ said lands were purchased by the defendant and would accordingly be not entitled to the sums claimed as there was no written agreement to be relied on specifying at what stage the Plaintiff was entitled to a commission. The issue for contention here is the word Commission. This word has a legal meaning and is defined in $10^{-10}$ Black's Law Dictionary Revised 4^th Edition at page 341 as follows;

#### Commission;

"... the compensation or reward paid to a factor, broker ayent, hailee, executor, trustee, and receiver, e.t.: 15 usually calculated as a percentage on the amount of his transaction or the amount received or expended..."

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Utilising this definition, the question which comes to my mind is whether the plaintiff and the defendant agreed to certain action upon which the plaintiff would be entitled to a commission

The plaintiffe' in his claim, reinforced by his witness statement and his trial bundle, lists out each of the activity he was to carry out and the commission he was to get. These were as agreed with the defendant's Managing Director for the amount he was to be paid vis

a vis the pieces of land which he was to acquire on behalf of the defendant. These assertions are on record and he was firm on them when put to cross examination. Even the agreed facts bear him out. To reinforce his assertions further he stated that on the 27^th December 2008, he and the defendant Managing Director sat downand agreed on the defendant's liability to the plaintiff. This was he had done substantial the assigned work. That a quantification of what was due to him was made out and he was only paid Uganda Shs. $49m/$ = as a result of that agreed statement approved and signed by the defendant's Managing Director. The reconciliation ofthe said account is contained in plaintiff's the trial bundle at page 33. That the said reconciliation account was made official by the defendant' Managing Director whom he states in Paragraph 17 of his witness statement signed the same to signify indebtedness of the defendant company to him. These assertions were nevercontradicted and indeed made more believable when the said managing Director of the defendant company, failed to come to court even after filing a sworn witness statement.

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I find it telling that the defendant's Managing Director, who was said to have made the said transactions between the defendant and- $20$ the plaintiff, chose to keep away from court. What was he fearing or hiding? I assume that he knew the plaintiff's claims were true. Howelse would one intimate his non appearance?. The evidence of Mr. Egesa DW1 was not useful in this area since he could only speculate as he was not there when the plaintiff and the.

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defendant's managing Director were concretizing what was owed and due to the plaintiff.

It not acceptable for the defence to try to bring into evidence of a memorandum of understanding (MOU) which is on record on either side (plaintiff's bundle at page 179-181. The defendant's bundle-Annexure B) shows that the plaintiff had intimated that he would abandon seeking remedies in court based on that MOU. My examination of the said document shows that it was not even between the plaintiff and the defendant company. It cannot be -10 relied on to determine the liability or not of the defendant company in this instant suit. The parties therein who purportedly signed for the defendant company had no legal authority by way of either a power of attorney or instructions.

To bring that piece of evidence to show that the plaintiff was stopped from bring this suit to me was in bad faith since the— - 15 principle of estoppel espoused in the cited of Pan African Insurance Co. (U) Ltd. V International Airport Association HCCs No 667 of 2003 and Development Finance CO. of Kenya V Wino Industries Ltd. (1995-98) 2 EA 65 would not help the defendant's case for the reasons I have stated earlier- $2c$

Even defendant's counsel inviting this Honourable Court to note the demeanor of the plaintiff during cross examination in regard this issue, I am at pains to state that the plaintiff's demeanor could not change the issue of an agreement made by parties tending bind.

$457$ a Party to such an agreement cannot stand in a another who is not court of law.

Overall, I find from the evidence before me and reinfo ^Y agreed facts that the plaintiff was commissioned to enter upo comprised in Kyaggwe Block 184 Plot 39 to settle squ contractual relationship existed between parties in th'

^I would find that the plaintiff has sufficiently proved that this issue was. sufficiently proved by the plaintiff that he did carry out duties on behalf of the defendant on a commission and wages basis where he was partly paid and he is entitled to the balance. I do so find accordingly in his favour.

**ISSUE NUMBER 2. WHETHER THE PLAINTIFF IS ENTITLED TO PAYMENT FOR THE 16.69 ACRES HE PURCHASED ? FROM** TENANTS BY OCCUPANCY ON KYAGGWE BLOCK 184 PLOT 39 **(KABAZIRUKA'S LAND), AND**----------- -------------------------------------------

**ISSUE NUMBER 3. ALTERNATIVELY, WHETHER THE DEFENDANT IS A TRESPASSER ON THE BIBANJA (OCCUPANCIES) ACQUIRED BY THE PLAINTIFF**

^I will discuss the two issues together as resolving one would resolve nn my fmrhncr n<3 already found in the. first issue ------ that the Plaintiff was commissioned by the Defendant to enter upon land comprised in Kyaggwe Block 184 Plot 39 at Mbalala to settle squatters and as such he was entitled to a commission. This ^I find^^

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it as a fact of the resolve between the Plaintiff's and the Managing Director of the Defendant Company. Additionally, I find it that the plaintiff outrightly purchased the clear from 16.69 acres uncontroverted evidence page 59 to 93 of his trial bundle. While it was submitted from the bar that the plaintiff could have told a lie in $\leftarrow$ $\mathbb{<}%$ this regard, the clear agreement with the Defendant's Managing Director, showed that he did purchase the land and had to be paid.

Further, it is on record show that the Defendant Company was currently in possession of the same piece of land yet there is nothing to show that the plaintiff was either paid for it or 10 reimbursed for the purchase price of this land. That the defendant tried to buy out the plaintiff interest for Shs. $10m/$ = per acre out of this land is clear as shown on page 44 of the plaintiff's trial bundle and is uncontroverted. That the defendant took the land forcefully without paying for it did prejudice the interest of the plaintiff and I //S would find that the plaintiff is entitled to the amount claimed and therefore ought to be reimbursed. This finding resolves issues number two and three issues in the favour of the plaintiff.

In the premises I do find so and state that the defendant has to pay Ug. Shs. 166,900,000/= to the plaintiff this being the value of the $2C$ said land.

ISSUE NO 4: WHETHER THE DEFENDANT IS ENTITLED TO THE SUMS CLAIMED IN THE COUNTERCLAIM.

In its counter claim, the defendant claims the sum of Ug. Shs $3m/$ = as over paid on the purchase of land comprised in Block 184 Plot 8 and 42. That this amount was based on the tabulated installments paid to the plaintiff and that the said amount was in excess of what the plaintiff was to be paid. This was for the total amount of Ug-Shs. $892,000,000/$ =. The plaintiff did agree that he received the said amount which was based on the tabulation with the defendant company's managing director. While I would find that this was money had and received by the plaintiff from the defendant company, I would hasten to add that this occurred as a result of ----------------------------------improper accounting by the defendant who did not keep proper books and therefore particular attention to how much was due and what was to be paid to the plaintiff.

This makes the amount offset able from what is due to the plaintiff as his commission and wages. This is based on the fact that is no $-15$ evidence to the effect that the plaintiff purposely took this money and kept it. The evidence before show improper book keeping.

The counterclaim therefore would only succeed on the basis of arithmetical error on the part of the defendant who, as a properly registered company should have had the capacity to determine $-2C$ through its accounts section the appropriate amount to be paid to... the plaintiff.

I would allow the counter claim but order that it be set off from the amount owed to the plaintiff with no order as to costs.

## ISSUE 5: REMEDIES AVAILABLE TO THE PARTIES.

I have already found that the plaintiff is entitled to recover the unpaid quantified sum of Ug Shs. 297,000,000/= as unpaid commission and wages and Ug Shs.166.900,000 as the value of 16.69 acres of land acquired by the Plaintiff and currently inpossession of the Defendant, the said amount shall be decreed to the plaintiff. This amount for commission and wages would be reduced by the sum of Ug Shs $3m$ = accordingly as counterclaim..

As regards the prayer for general damages, these are in law intended as compensation for loss occasioned to the plaintiff by the $10^{-10}$ defendant and not as a punishment to the defendant. Court is inclined to the view that a person who sues for breach of contract is entitled to recover the amount of loss which he sustained due to the breach and that the defendant is liable to make good such loss. $-15$ General damages are awarded by court at large and after due assessment. This was the holding by the Court of Appeal in the case of Uganda Revenue Authority v David W Kitamirike CACA $43/2010.$

In view of the order for payment to the plaintiff the unpaid sums, I mould consider it just and equitable to make an award of general $\longrightarrow$ 20 damages of Uganda Shillings ten Million (Ug. Shs. 10,000,000/=). The basis of this award is that the defendant has kept the plaintiff

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f his money and the defendant has had use of it itself. So it compensate the plaintiff accordingly.

This \* 1S as per ^e decision in the case of the authority of **Hambutt's Plasticine Ltd V Wayne Tank and Pump Company Ltd [1970] ¹ QB 447.** \_\_\_\_\_\_\_\_\_\_\_\_\_

The Plaintiff further prayed for interest on the principal sum and on general damages. It must be recalled that an award of interest is discretionary as held in the case of **Milly Masembe V Sugar Corporation of Lugazi [2002] 2 EA 434.**

**/C** In the instant case, it is clear that the defendant deprived the Plaintiff of his payments despite the fact that the Plaintiff had honored his obligations by procuring various properties as agreed with the Defendant Company and therefore the plaintiff would by that very act be entitled to interest.

^I would award interest at the rate of 10% from the date of filing this suit until payment in full

As regards costs of this suit, ^I would award to the successful party which is the plaintiff.

against the In the defendant result, judgment is entered for the plaintiff on the terms set in the orders below:

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## orders

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as-SPecial Damages of Uganda Shillings Two Hundred Ninety Seven Million (Ug. Shs. 297,000,000/=) as unpaid commission and wages. (This is reduced by Three Million (Ug. Shs. 3,000,000/=) excess payment on the counterclaim which is allowed without costs) and Uganda Shillings One Hundred Sixty Six Million Nine hundred------ Thousand only (Ug Shs. 166, 900,000/=) being the value of 16.69 acres of land.

ii) General damages of Uganda Shillings Ten Million only (Ug. Shs.-lO, 000,000/=)

*II* iii) Interest on (i) at the rate of 10% per annum from the date of filing the suit until payment in full.

iv) Interest on ii) at the rate of 10 % per annum from the date of judgment until payment in full.

iv) Costs of the suit.

**Henry Peter Adonyo**

**JUDGE**

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**^I &\* ⁱ ....jp.** **17th February 2014**

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es present **Court:** Judgment delivered in the presence of the partiorders made accordingly.

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# Henry Peter Adonyo

**JUDGE**

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17^th February 2014

$4674$

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA (SUIT NO. 334 OF 2011)

## **ANDREW MAVIIRI**

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**PLAINTIFF**

#### **VERSUS**

### **JOMAYI PROPERTY CONSULTANTS LIMITED ]**

**DEFENDANT**

#### DECREE

UPON this suit coming up for final disposal before the HON. MR. JUSTICE HENRY PETER ADONYO on the 17^th day of February, 2014 in the presence of Counsel Gilbert Nuwagaba for the Plaintiff and Counsel Musa Nsimbe for the Defendant;

IT IS HEREBY ORDERED and DECREED that the defendant pays to the Plaintiff the following;

- 1. Special damages of Uganda Shillings Two Hundred Ninety Seven Million (Ug. Shs.297,000,000/- as unpaid commission and wages. (This is reduced by Three Million (Ug. Shs.3,000,000=) as excess payment on the counterclaim which is allowed without costs) and Uganda Shillings one Hundred Sixty Six Million Nine Hundred Thousand only **(Ug. Shs.)** $166,900,000=$ ) being the value of 16.69 acres of land. - 2. General damages of Uganda Shillings Ten Million only (Ug. Shs. $10,000,000=$ ). - 3. Interest on (1) at the rate of 10% per annum from the date of filing the $\frac{1}{2}$ suit until payment in full. - 4. Interest on (2) at the rate of 10% per annum from the date of Judgment until payment in full. - 5. Costs of the suit

$465$


We consent;


**GIVEN** under my hand and seal of the court this 2014.

**RAR 1EPUTY REGI**