[2024] UGHCLD 280

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

#### **LAND DIVISION**

## CIVIL SUIT NO. 254 OF 2021

MUWONGE MUSA MASIMBI ::::::::::::::::::::::::::::::::::: $\overline{5}$

#### **VERSUS**

## 1. SERUNJOGI MUSA

2. NAKAZIBWE JEMEWO ::::::::::::::::::::::::::::::::::::

#### Before: Lady Justice Alexandra Nkonge Rugadya 10

#### **JUDGMENT:**

The plaintiff brought this suit against the defendants seeking for an order of specific performance of the terms of agreement of the sale of unregistered land situate at Gabunga Rd - Kabowa Central, Kabowa Parish, Lubaga Division,

Kampala valued at *Ugx 80,000,000/= (Uganda shilling eighty million only)* 15 by handing over vacant possession thereof; a permanent injunction restraining the defendants in dealing in any way with the suit land to the detriment of the plaintiff; general damages and interest, among others.

The defendants however filed a defence and a counterclaim, claiming that the agreement was void and unenforceable on the ground of misrepresentation and 20 fraud.

### Facts of the case:

On the 18^th day of September, 2019 the plaintiff and the defendant entered into an agreement of sale purchase of the suit land situate at Gabunga Rd - Kabowa Central, Kabowa Parish, Lubaga Division, Kampala for consideration of **Ugx**.


Jalat 8

80,000,000/= (Uganda shilling eighty million only) which was paid to the defendants in cash.

They duly acknowledged and handed over documents in proof of ownership of the said property to the plaintiff. It was an express term of the said agreement of sale of the subject property that the defendants were to hand over vacant possession of the said property to the plaintiff by 18^th October, 2019 without fail.

It was the plaintiff's claim that the defendants in breach of the terms of the agreement sale of the suit property refused to hand over vacant possession of the same despite requests from the plaintiff.

The defendants in their written statement of defence and counterclaim claimed 10 to have offered to sell their house at Kabowa, Rubaga Division in Kampala at

# $Ugx$ 170,000,000/=.

$\mathsf{S}$

That the plaintiff accepted the offer but however assured them that if they paid *Ugx 80,000,000/*=, the said sum would turn into *Ugx 170,000,000/*=.

According to them, the agreement of sale and purchase of land was null and void 15 as it was written in English a language they did not fully understand and that no translation was made; and that the defendants who are still in possession were not availed a copy even after execution of the agreement.

That the plaintiff deep in the night returned to pick the money which was part payment, in the guise that of bringing more money, to make it **Ugx** 20 $170,000,000/=$

In the counterclaim, they accordingly sought for orders/declarations that the agreement dated 18^th September, 2019 is null and void due to illegality, fraud and misrepresentation; a declaration that there was no consideration in the land transaction dated 18^th September 2019 between the parties; a permanent injunction restraining the plaintiff/counter defendants, their servants and agents from interfering with the suit property and claiming ownership of the same; general and punitive damages; and costs of the suit.

Virbug $\mathsf{Z}$

#### **Representation:**

The plaintiffs were represented by M/s Ajungule & Co. Advocates. The defendants on their part were represented by *M/s Nabakiibi Kanyago & Co.* Advocates.

- **Issues for determination:** $\mathsf{S}$ - 1. Whether the agreement dated $18^{th}$ September 2019, purportedly executed between the plaintiff and the defendant is illegal, null and void due to the illegality, fraud and misrepresentation? - 2. Whether the terms of the sale agreement of the suit property were $10$ breached? - 3. Whether the plaintiff provided consideration in the Land transaction dated 18^th September, 2019 between the parties? - 15 - 4. Whether there was fraud and misrepresentation in the purported sale of the suit property? - 5. Whether there any remedies available to the parties.

#### Resolution of issues. 20

### **Preliminary Objection:**

# Whether or not the absence of a certificate of translation invalidated the transaction?

The issue of validity of the contract was raised as an objection, a matter which this court had to deal first before any other issue which was raised for 25 determination.

1) lost

Section 9(1) of the Contracts Act defines a contract as an agreement made with free consent of parties with the capacity to contract, for lawful object, with the intention to be legally bound.

For a contract to be valid and legally enforceable, there must be capacity to contract, intention to contract, consensus ad idem; valuable consideration; legality of purpose; and sufficient certainty of terms.

$\mathsf{S}$

If in a given transaction any of these is missing it could as well be called something else. (Ebbzworld Ltd & Anor vs Rutakirwa Civil Suit No. 398 of $2013).$

The general principle is that when a document containing contractual terms is 10 signed, then in the absence of fraud, or misrepresentation the party signing it is bound by its terms. (See: William Kasozi versus DFCU Bank Ltd High Court Civil Suit No.1326 of 2000).

As noted earlier, for a contract to be valid and legally enforceable, there must be capacity to contract, intention to contract, consensus ad idem; valuable 15 consideration; legality of purpose; and sufficient certainty of terms.

The plaintiff relied on his evidence as **Pw1**, Haruna Sekandi as **Pw2**, with whom they inspected the property before the purchase was purportedly made on that same day. The defendants gave evidence respectively as Dw1 and Dw2. Katamba Arafat their biological son testified as **Dw3**.

Dw3 however admitted that although a witness to the agreement he was not there when the money was paid and agreement signed. That he only signed it later, and had done so without reading it.

Ibrahim Lubega a broker in this deal was the fourth defence witness and testified as **Dw4**. He was not however one of the five witnesses to the agreement, a copy 25 of which was tendered in as **PExh 1**.

Johns

Court noted that none of those who were present at the execution of the agreement were called in to testify.

The agreement which was dated 18^th September, 2019 was signed by the defendants as vendors on the one part and the plaintiff as purchaser on the other hand with each page duly endorsed by the parties. Attached to the agreement was also a sketch of the area, measuring $65$ ft x $55$ ft.

$\mathsf{S}$

During cross examination, the plaintiff testifying as **Pw1** told court that he had visited the property at 10.00 a.m; conducted a search in Buganda Land Board, got funds from the bank and made the payments on the same day.

On the same day he got in touch with his lawyer to draft the agreement. That 10 the sale agreement was read out in Luganda to all the parties that were present, inclusive of the defendants, by counsel Sauda Nayiga who was not a stranger to the defendants, before they appended their signatures.

Counsel Nayiga had acted as the agent of the plaintiff and it was on his instructions that she had drafted the said agreement. This was confirmed in 15 paragraph 6 of the witness statement of $Dw3$ .

The defendants through their counsel submitted on their part that the purported sale agreement which is the basis and foundation of the plaintiff's claim offended the provisions of the **Illiterates Protection Act.**

That it was clear that the $1^{st}$ and $2^{nd}$ defendants were illiterate and could not 20 read; that the agreement was never read over and translated to them in Luganda, a language they understood, and were never allowed to even access the agreement until later through other means.

**Dw3** in paragraph 10 of his witness statement confirmed that the lawyer did not allow him or any other witness to read through the agreement. During cross 25 examination, he confirmed that the defendants only accessed a photocopy of the sale agreement when he got in touch with the plaintiff's lawyer's husband Mujib

Nelse 5

Nkembo who gave him a copy of the same as the two were acquainted to each other.

**Dw2** in her witness statement under paragraph 22 and 23 also confirmed that she was not able to access the agreement and the part to sign was showed to her by the lawyer who never at any one time translated the contents of the agreement.

It was the defendants' submission therefore that if the parties had agreed on the agreement terms and indeed if there had been no such irregularities, there would have been no need for the plaintiff and his team run to away without leaving a copy of the agreement for the defendants, claims which the plaintiff however refuted.

# **Consideration of the issue:**

$\mathsf{S}$

$10$

The **Illiterates Protection Act** defines an illiterate person to mean, in relation to any document, a person who is unable to read and understand the script or language in which the document is written or printed.

**Section 3** thereof is to effect that, any person who shall write any document for or at the request, on behalf or in the name of any illiterate shall also write on the document his or her own true and full name as the writer of the document and his or her true and full address, and his or her so doing shall imply a statement that he or she was instructed to write the document by the person for whom it purports to have been written and that it fully and correctly represents his or

her instructions and was read over and explained to him or her.

The section enjoins any person who writes a document for or at the request or on behalf of an illiterate person to write in the jurat of the said document his or

her true and full address and to state therein that it was read over and explained 25 to him or her who appeared to have understood it.

Ouboog

An illiterate person cannot own the contents of the document when it cannot be shown that they were explained to him or that he understood them and failure to comply renders the document inadmissible.

Counsel for the plaintiff's argument was to the effect that sections 91 and 92 of the Evidence Act was applicable. That once the terms of contract have been $\mathsf{S}$ reduced to the form of a document, no evidence of any oral agreement or statement for the purpose of contradicting, varying, adding or subtracting from its terms may be admitted or given in proof of the terms of that contract except the document itself, or secondary evidence of its content in cases in which secondary evidence is admissible. $10$

In the cited case of DSS Motors Ltd vs Afri Tours and Travel Ltd H. C. C. S. No. 12 of 2013, it was held that, since the agreement between the parties was in writing, the parole evidence rule was applicable to it.

This rule is to the effect that evidence cannot be admitted (or that even if admitted) cannot be used to add to, vary or contradict a written instrument. In 15 relation to contract of this nature, the rule means that where a contract has been reduced to writing, neither party can rely on the terms alleged to have been agreed, which is extrinsic, that is, not contained in it. The rationale of the parole evidence rule is that parties who have reduced a contract to writing should be bound by the writing alone.

This court noted in the present case that the defendants' written statements had certification at the end, as required by law. The agreement did not have the said certificate.

This strengthened the defendants' argument indeed that being unable to understand the English language, the certification was a vital requirement. It 25 was proof that the document had been read out to them in a language they understood and therefore understood the contents of the document which they signed.

Veloce - With all due respect to plaintiff counsel's arguments therefore, the provisions of sections 90 and 91 of the Evidence Act, cannot be relied upon as a way of circumventing or watering down the strict and mandatory provisions of the **Illiterates Protection Act.** - In the Supreme Court case of Kasala Growers Co-operative Society vs $\mathsf{S}$ Kakooza & Anor [2012] UGSC 29, it was held that where an affidavit in support of an application itself did not contain a statement showing that the contents thereof were read over and explained to the deponent who appeared to have understood them, it could not be relied by court and as such, it was struck out. - A certificate of translation is therefore under those circumstances a mandatory $10$ requirement, regardless in my view of whether or not the person who drafted the agreement was known to the defendants as alleged; and regardless of whether or not the agreement had been read out to them in a language they understood before it was signed/thumb printed by them. - Sections 90 and 91 of the Evidence Act could only come in the plaintiff's aid 15 if other documentary evidence had been presented to court in rebuttal of the defendants' assertions, but not oral evidence.

The objection is therefore upheld.

Given the peculiar nature of the dispute at hand by which collusion and fraud were imputed against the plaintiff, and in light of the developments that came 20 up later, this court felt inclined to deal with the rest of the issues.

## Issue No. 3: Whether the plaintiff provided consideration in the Land transaction dated 18^th September, 2019 between the parties?

**And**

Issue No. 2: Whether the terms of the sale agreement of the suit property 25 were breached?

Analysis of the evidence:

In lat 0

## Issue No. 3: Whether the plaintiff provided consideration in the Land transaction dated 18^th September, 2019 between the parties?

The gist of the dispute rotated out around how much consideration the plaintiff was required to pay under the arrangement, how much he had paid and if at all he was required to pay more, how much more and when to pay.

$\mathsf{S}$

It was an agreed fact that the two sides entered into an agreement on 18^th September, 2019, at a consideration of *Ugx 80,000,000/*= which the defendants acknowledged receipt of in cash.

They handed over the documents in proof of ownership of the said property. It was also an express term in that arrangement that the defendants were to hand 10 over vacant possession of the property by 18^th October, 2018 which the defendants failed to do.

The defendants however claimed that the total sum payable was meant to be Ugx 170, 000,000/=. The defendant sought in their counterclaim therefore a declaration that the funds received by the defendants were reclaimed by the plaintiff and thus no consideration was paid in respect of the transaction.

**Dw4** based on his testimony, had been engaged in brokerage services for a period of twenty years. That he was requested by $Dw2$ to identify a buyer for the said suit property at a cost of *Ugx 170,000,000/= (one hundred seventy million* shillings), which amount the defendants denied having received.

**Pw2** on his part, denied the claim that the consideration was **Ugx** $170,000,000/$ = (Uganda shillings One hundred and seventy million only), as alleged by the defendants.

During reexamination, it was his evidence that the defendants initially asked for Ugx 130,000,000/=, which figure however as noted by this court neither

featured in the pleadings nor in his statement or that of $Pw1$ .

Julorg

**Pw1** informed court that after the two sides had agreed on **Ugx 80,000,000/=** on that same day, his lawyer Nayiga Sauda came with the agreement already drafted because they had already reached an agreement that day.

According to the defendants, the initial amount of *Ugx 80,000,000/*= that had been paid to them had been stolen through connivance, deceit and misrepresentation by the plaintiff, following a deal between him and one Sheikh in Gayaza.

This court particularly noted that the agreement by which the kibanja and its developments was purchased by the defendants on 31^st July, 2014, indicated a

sum of *Ugx 75,000,000/=. (PExh 3)*. The presumption is that this was the value 10 of the property in 2014.

With that evidence as highlighted, it is inconceivable given the rate of inflation, that five years later the value of the property had only increased by **Ugx** $5,000,000/=$ .

- It was therefore more probable than not, that the parties never agreed in the first 15 place on the actual amount that was to be paid as consideration; and that the defendants never understood the nature and implications of the agreement which they purported to sign. What they purported to sign for in the agreement as consideration was less than half the value of the property, which could not - have been their intention. 20

$\mathsf{S}$

Thus whereas therefore the defendants denied having sold their house to the plaintiff at less than the value of the property they duly acknowledged having received the said amount from the plaintiff.

But secondly, even if court were to hold that the contract was enforceable against them, by virtue of section 30 of the Contracts Act, Cap. 284, a contract which 25 is contingent on the happening of a specified or uncertain event becomes void when the time fixed for it expires and the event has not happened.

Nobort

In **section 31** thereof, an agreement to do something which is contingent on impossible event is void, regardless of whether or not the impossibility of the event is known to the parties at the time the agreement is made.

In this case the defendants were misled into thinking that the money received as consideration without investing it, would immediately more than double if taken to the Sheikh in Gayaza. Quite absurd in my view given the fact that they never thought twice about the nature of this offer but took it up without any question.

This court also noted that the other elements of a valid agreement had not been duly met by the parties.

Consent and/or capacity of the parties to contract, the two interrelated 10 components of a valid transaction were conspicuously missing. Without the necessary capacity to transact, the element of consent cannot be said to have been achieved. In a like manner, consent to transact can only be met if the party to an agreement has the full authority and capacity to enter into a contract.

- Thus in the Court of Appeal in its decision: Joyce Nakayima & 3 others vs 15 Nalumansi Kalule and 2 others CACA No. 111 of 2019, held that a sale conducted without proper authority cannot be executed against any of the parties, let alone be enforced against a third party who was not privy to the contract. - For a person to have capacity he or she must either claim valid ownership or 20 must have authority in form of powers of attorney or other express authority to deal him with the property which was not in his/her names.

In the case of Tayebwa Geoffrey and Anor vs Kagimi HCCS No. 11 of 2012 quoting Ojwang vs Wilson Bagonza CACA No. 25 of 2002, it was held that for the defendants to claim interest in the property/land that was allegedly sold to the plaintiff he/she must show first that he/she acquired interest from someone

who previously had interest thereon.

$\mathsf{S}$

Whale of

Article 26 (2) of Constitution of the Republic of Uganda guarantees the existence of the right for every person to own property, either individually or in association with others.

By virtue of section 36 (9) of the Land Act a registered owner on which the interest lies is under an obligation to respect the valid existing interests if any, $\mathsf{S}$ on the land.

Similarly, section 64 (2) of the RTA, Cap. 240, states clearly the land included in any title is subject to among others, to any subsisting rights under any adverse possession of the land.

But the above provisions notwithstanding, an occupant claiming to have 10 protectable interest which he/she intends to pass onto the buyer has that right by virtue of **section 35(1) of the Land Act,** to assign, sublet or subdivide the tenancy, but can only do so with the consent of the land owner. That implies therefore that any such transaction executed without consent of the registered

owner would not be valid. (Section 35(9)). 15

> In the present case, **PExh 2** was mass registration identification card from BLB, dated 13^th July, 2016. Attached to it was a registration receipt of *Ugx 600,000/=*, in the joint names of the defendants both as tendered in court. A form from BLB confirmed the defendants' ownership of the kibanja.

The pleadings and evidence by the plaintiff do indicate that suit property was 20 built on a kibanja on Kabaka's land. This was land which the defendants had bought on 31^st July, 2014 from Robina Kagoro and Lutaya Henry (Ref; PExh 3) who had bought it from Alozio Lutaya on 29th January, 2001. (PExh 3 (b))

From the reading of the agreement this was intended as a sale of land situate at

Gabunga Road- Kabowa Central- Kabowa Parish- Lubaga division, the vendors 25 have agreed to sell and have indeed sold the above captioned land to the purchaser.(emphasis mine).

Infort

In a nutshell, the defendants were not selling property in isolation of the land itself which belonged to the Kabaka. The maxim of quicquid plantatur solo solo cedit implies that the rightful owner claims as his, everything that is found or put up on the land.

The case of **Kupoluyi vs Philips (1996) 1 N. WLR** underscores the need for any $\mathsf{S}$ developer to satisfy himself with the validity of the title which he proposes to construct on or buy. Based on those principles, the requirement of consent by the registered owner prior to the sale thus becomes unavoidable.

In the instant case there was evidence of kibanja ownership and occupation, but nothing to show that there was prior consent of BLB (as an agent of the registered 10 owner) before the two sides entered into the agreement for sale.

In the event that such consent had been obtained, these documents ought to have been made part and parcel of the agreement, proof that due diligence was conducted and consent was obtained by the prospective seller and buyer from

the registered owner, so as to satisfy himself of the vendors' capacity to sell the 15 land.

Thus in absence of any evidence to make court think differently, by a sale agreement **PExh1**, the parties had entered into a transaction with the plaintiff as the purchaser and defendants as sellers on 18^th day of September, 2019 of land situate at Gabunga Rd - Kabowa Central, Kabowa Parish, Lubaga Division,

20 Kampala, but without the consent of the registered owner of the land.

The evidence further indicates that the parties had ill-advisedly avoided the involvement and participation of the LCs as witnesses to the transaction.

Court in Jennifer Nsubuga vs Michael Mukundane and Anor CACA NO. 208 of 2018 made it clear that though not in statute law, consultations with the 25 leadership of the area where the land is located is very key in establishing that due diligence was carried out. As such, Lcs ought not to be disregarded in land transactions.

Whord

In the case of Jennifer Nsubuga versus Micheal Mukundane, Civil Appeal No. 208 of 2018, it was held that:

"In my view, a due diligence investigation would seek to cross check or confirm the vendor's claim by inquiring, seeking to cross-check or confirming the vendor's claim to title by inquiring of independent persons knowledgeable about the land or that which could otherwise shed light on the bonafides of the intended land purchase.

It ought to be directed at persons that are independent of the beneficiaries of the land transaction in question, with a view to ascertaining the authenticity of the title sought to be conveyed. Of necessity that would exempt routine, contractual inquiries made of the seller to establish his/her title to property".

The above principles in my view equally applied to the plaintiff as the intending buyer in respect of the sale transaction. The plausible suggestion as submitted by counsel for the defendants made by was that this was a hurriedly concluded transaction and it is hardly surprising therefore that the parties failed to agree to the actual consideration payable.

even though as submitted by counsel for the plaintiff the Thus defendants/counterclaimants did not deny the contents of the agreement in cross examination, and had appended their signatures, the above findings by court were confirmation that the agreement did not meet the criteria of an enforceable transaction.

As also observed earlier, the certificate of translation was not attached as required by law. Not only were the ingredients of offer and acceptance not met but also as noted there was no involvement and consent of the registered owner of the land on which the property was located.

Nabout

$\mathsf{S}$ In response therefore to issue No. 3, evidently there was also no consensus ad idem on the consideration and therefore, no binding legal relationship had been created between the two sides.

A court ought not enforce or allow itself to be made an instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal if the illegality is duly brought to the attention of court and if the person invoking the aid of court is himself implicated in the illegality. (May vs Brown Doering MC NAB & Co. (1882) 2QB 728 cited with approval in Kyagulanyi Coffee Ltd vs Francis Senabulya CACA No. 41 of 2006.)

## Issues No. 2: Whether the terms of the sale agreement of the suit property 10 were breached?

It was the plaintiff's claim that it was an express clause in the agreement that the defendants undertook to handover vacant possession of the subject suit land by the 18^th day of October 2019 without fail.

However, that they have since refused, neglected and/or ignored to handover 15 quiet vacant possession of the suit land which breached the express terms of agreement of sale.

That it became apparent that the defendants/counterclaimants breached the contract when they refused and /or ignored to handover vacant possession for the suit land, contrary to the terms of the agreement of sale.

As noted earlier, the defendants gave their reasons as to why they failed to vacate the premises citing invalidity of the agreement and fraud committed in the transaction, attributed to the plaintiff.

#### Resolution by court:

$\mathsf{S}$

Breach of contract is the breaking of the obligation which a contract imposes. It 25 confers a right of action for damages to the injured party and entitles him to treat the contract as discharged if the other party renounces the contract or makes

ando Po

performance impossible or substantially fails to perform his promise. (Stanbic Bank Uganda Ltd Vs Hajji Yahaya Sekalega T/A Sekalega Enterprises, Civil Suit No. 185 of 2009).

It occurs where one party to a contract fails to carry out a term of the said contract, when a party neglects, refuses or fails to perform any part of its bargain $\mathsf{S}$ or any term of the contract. (Emmanuel Kyoyeta Vs Emmanuel Mutebi Civil Suit No. 781 of 2014).

It is now settled law that once a contract is valid; it automatically creates reciprocal rights and obligations between the parties thereto and 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.

For there to be a breach, the three elements which must exist is that there must be a contract; the contract must be enforceable and parties must have performed under the contract.

- The cause of action for the plaintiff in this case is entirely premised on breach of 15 contract by the defendants of the terms of the sale agreement alleged to have been executed between the two on the 18^th September 2019, and in respect of which the plaintiff sought both vacant possession of the suit property and specific performance of the contract. - Section 64 of the Contract Act provides that where a party to a contract, is in 20 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. (Namugera John vs Micheal Civil Suit No. 271 of 2019).

However, under the circumstances of this case where there was clearly no valid enforceable agreement, the issue of breach of contract did not arise as no rights 25 could arise out of an invalid agreement.

Johars

# Issues No. 1 and No. 4: Whether there was fraud and misrepresentation in the purported sale of the suit property?

Fraud has been defined to mean the intentional perversion of the truth by a person for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or her or to surrender a legal right.

It is a false representation of a matter of fact whether by words or by conduct, by false or misleading allegations or concealment of that which deceives and it is intended to deceive another so that he or she shall act upon it to his or her legal injury. (Fredrick Zaabwe vs Orient Bank & Others SCCA No. 420 of

10 $2006$ ).

$\mathsf{S}$

Allegations of fraud were denied by the plaintiff whose assertion was that bearing in mind the parole evidence rule, the written agreement was binding to both parties to a sale agreement and that the defendants adduced nothing in court to show that they defrauded and/or coerced the defendants to execute the said agreement.

That an agreement had been executed and endorsed with the free will of the parties thereto and the entire agreement reflects no provision for misrepresentation.

This area has however been partly addressed based on the court's finding and conclusion that there was no valid or enforceable agreement between the two. 20 What remains unresolved was the defendants' belief about what later on happened after the money was acknowledged as received by the defendants.

It was the defendants' claim that the purchase of the house was **Ugx** 170,000,000/= (one hundred seventy million only), and that the 2^nd counter defendant helped the 1^st defendant/counterclaimant to take the money to a 25 Sheikh in Gayaza so that it could double. As already noted, the defendants received a sum of *Ugx 80,000,000/*=

John

out of that sum, the defendants had paid the broker' the 2"d counter-defendant' Yusuf aka Tough Ugx 5,OOO,OOO/= (five nllllon onlg)' DutT kept Ugx 5,oOO,OOo/=athomewithoutinforminghiswife'Thebalancewastakentoa Shcikh by thc defendant himself.

5 DurI informed court in paragraph 9 of his witness statement that he saw the plaintiff coming from a Sheikh's house in Gayaza. Thc next time he saw him is when he got to Kabowa to buy the house'

The defendants thus wondered what the plaintiff was doing at Sheikh's house in Gayazashortly before the transactions and how the plaintiff got to know that the

moneytakentoSheikhwaslessbytlgxS,OOO,OOO/=beforegettingbacktothe dcfcndant's home to pick that balance' 10

It was the defendants' furthcr claim that the plaintiff acted suspiciously whcn his team run away from the defendants' house when Dutl had gone to get them water, taking with them all the agreements'

Du3 informed court that hc got to see thc plaintiff again in the night at his gate through a hole on his gate when the plaintiff and Yusuf knocked at their (defendantsJ gate to pick the llgx 5,OOO,OOO/= wlnich Dut T lnad remained with as per paragraph 33 of his witne ss statcmcnt' 15

This information was corroborated by Dut2 in her witness statemcnt in paragraph38whensheconfirmcdsecingtheplaintiffandYusufwereattheir gate when they came to pick the ttgx 5,OOO,OOO/=' 20

According to the defence counsel, the so many events that took place within ^a shorttimespeaktoanorganizcdrackettodefraudthedefendants,behindwhich was the plaintiff, claims which were rcfutcd by thc plaintiff side '

^Afew things appeared to havc happcncd out of thc ordinary' However' the acts attributed to the plaintiff pointed towards a commission of serious crimcs of robbery/theft and threatcning violence, which this court is not competent to try in exercise of it civil jurisdiction. 25

\tD"68

The alleged offences ought to have been thoroughly investigated by the Police' but not left to court to fill in the gaps and spcculate'

There was nothing to prove that the plaintiff had forced the defendants to enter intoadealwiththeshcikh. Indeed,ncithcrSheikhnorYusufwerewitnessesto 5 the agreement or parties thereto.

The defendants did not lead any proof that the Sheikh at Gayaza and the plaintiff had thereafter bcen convicted of the allcgcd thcft of his moncy amounting lo Ugx TO,OOO,OOO/=.

court noted that part of the events alleged by the defendants to have taken piace 10 occurred at night when visibility and identity of the perpetrators could not be ascertained.

Purlinformedcourthedidnotknowthe2ndcounterdefendant,submitting therefore that the defendants dealt with Yusuf AKA "tough" at their own detriment.

- 15 These allegations therefore remained baseless, having been premised on mere suspicion and conjecture as no actual efforts were made by the defendants to findoutthenameandwhereaboutsofthesheikhbe]icvedtohaveworkedwith thesaidYusufAKA.tough'andplaintifftodeprivethemoftheirmoneyand property. - 20lnmyview,thedcfendants,werelargelytoblameforwhateverwentwrongin thistransaction. Thcywcrebothncgligcntinthcmannerinwhichtheyhandlcd the transaction, leaving so many unanswered questions and gaps in their story which court neither hll in and act on'

It becomes difficult to accept the defcndants' ciaim therefore that they were 25 convinced that the money could multiply two-fold with thc help of a person whom

they met for the first time, one who was also a stranger to the contract'

\,\*ry

The counterclaimants had an obligation to fulfill since the burden of proof required to prove fraud is higher than in an ordinary civil matter. They did not discharge it.

As adults presumed to be of sound mind, they owed it to this court to provide ^a full explanation as to what really happened instead of leaving it in the hands of court to do the investigatlons.

For those reasons, the countcrclaim thcrefore fails

## Issue No, 5: Remedles a oailable:

### General damaqes:

In the instant case, the plaintiff stated that despite having fully paid the consideration on the defendant failed and/or refused to hand over to him the vacant possession of the suit kibanja despite repeated reminders' 10

However as noted earlier, an order for specific performance can only be granted where there was a breach of a valid contract. since there was no vaiid contract,

no brcach was proved and thcrcfore damages cannot be granted as an automatic right. The rcst of the rcliefs sought by the plaintiff arc thcrcfore also rejectcd. 15

## In conclusion:

It is trite that a party cannot bc allowcd to keep what he or she obtained in an iilegal contract. Thus whcrc an agrccment is found to bc void a person who received any advantage under that agreement or contract is bound to restore it or pay compensation for it, to the person from whom he/ she received the advantage.

The defendants in this case cannot bc seen to hold onto both the moncy received as consideration and the property which they purported to sell'

Accordingly: 25

1, The plointtff is therefore or.lg entitted to a sum of the Ugx 75,OOO,OOO/= pdid out as refund, pagable utithln a period oJ one

20 \'I'4

hundred and twenty days, with interest payable at the rate of 12% $p.a;$

2. The interest in 1 above shall be payable from the time of delivery $\frac{1}{2}$ of this judgment, till the payment of the entire sum owed is made in full.

3. The defendants to meet costs of the counterclaim.

Al hore<br>ndra Nkonge Rugadya Alexand

Judge

$\mathsf{S}$

14^th November, 2024

Delivered by emcil<br>allego<br>Jelivered<br>Jeliego<br>Jeliego<br>Jeliego

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