[2024] UGCommC 307

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION) CIVIL SUIT NO. 674 OF 2021**

## **1. NABITEKO ROBINAH**

10 **2. NABUMBA GLORIA :::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFFS VERSUS**

**1. SSENOGA WILLY**

**2. SEKITTO ENOCK :::::::::::::::::::::::::::::::::::::::::::::::::::: DEFENDANTS**

#### **BEFORE: HON. LADY JUSTICE PATIENCE T. E. RUBAGUMYA**

## 15 **JUDGMENT**

#### Introduction

This matter was filed on 8th October, 2021, by the Plaintiffs for an order for payment of UGX 11,280,000/= as the total purchase price for the goods taken by the 2nd Defendant and their agents from the 2nd Plaintiff, a 20 declaration that the 1st Defendant breached the contract and undertakings he had with the 2nd Plaintiff, a declaration that due to the fundamental continuous breaches, the said contract and undertakings were repudiated by the 2nd Plaintiff, a declaration that the suit premises, shop C 102 situate at Nakivubo Trading Centre, is owned by the 1st Plaintiff after being 25 lawfully sold by the 2nd Plaintiff being a sub-tenant, a permanent injunction restraining the 2nd Defendant and all persons claiming title under him from further trespassing on the suit premises.

The Plaintiffs also claimed for general damages, interest and costs of the suit.

## 5 Background of the suit

The brief facts of this case are that on 12th November, 2019, the 2nd Plaintiff and 1st Defendant entered into a contract and undertakings wherein they agreed to buy the goodwill and occupancy of shop C 102 situate at Nakivubo Trading Centre, the suit premises, from Sekamanya 10 Vincent at a consideration of UGX 60,000,000/= (Uganda Shillings Sixty Million Only). The 2nd Plaintiff and 1st Defendant also agreed to pay UGX 30,000,000/= (Uganda Shillings Thirty Million Only) each and equally share payment of the rent, utility expenses, and other incidental fees to the shop like the trade license.

- 15 The parties further agreed that upon payment of the full consideration, the vendor Sekamanya Vincent was to introduce them to the property managers of the building where the shop is situated. The 2nd Plaintiff paid her full share of the consideration however, the 1st Defendant only paid UGX 24,000,000/= leaving a balance of UGX 6,000,000/=. Upon taking - 20 possession of the suit premises, the 1st Defendant sublet his portion of the shop to the 2nd Defendant with the same conditions. That in July, 2021, the 2nd Defendant left the shop without giving notice to the 2nd Plaintiff, and without paying the rental arrears of seven (7) months from January, 2021 till August, 2021, the utility expenses and the balance of the 25 consideration.

To that, the 2nd Plaintiff repudiated the contract and undertakings between her and the 1st Defendant and then sold the goodwill in the shop to the 1st Plaintiff. That after the 1st Plaintiff paying her consideration to the 2nd Plaintiff, the initial balance of UGX 6,000,000/= was paid to which the 1st 30 Plaintiff was introduced to Sekamanya Vincent who in turn introduced her to the property managers and a tenancy agreement was executed between

the property managers and the 1st Plaintiff. That however, the 2nd 5 Defendant has since forcefully re-entered the suit premises hence this suit.

In his defence, the 2nd Defendant contended that the shop was bought by the 1st Defendant on his behalf. That the 1st Defendant and the 2nd Plaintiff 10 never entered into any contract save for the contract of sale of goodwill between the vendor Sekamanya Vincent and the buyers, the 1st Defendant on behalf of the 2nd Defendant and the 2nd Plaintiff and that he has always paid the rental arrears and utility expenses.

- The 2nd Defendant also filed a Counterclaim against the Plaintiffs/Counter 15 Defendants wherein he averred that after the sale of the goodwill in the shop by Sekamanya Vincent, he took physical possession of the suit premises and thus the 2nd Counter Defendant/2nd Plaintiff unlawfully sold the goodwill in the shop to the 1st Counter Defendant/1st Plaintiff without his permission. That as a result of the 2nd Counter Defendant's actions, - 20 the Counter Claimant's goods and equipment in the shop have been locked up without any justification and he has been unlawfully restricted from accessing the shop.

In the premises, the Counter Claimant seeks a declaration that the sale of the goodwill to the 1st Counter Defendant/1st Plaintiff was illegal, a 25 declaration that the Counter Defendants trespassed on his goods, a declaration that the Counter Defendants are liable for conversion and detinue, special damages, general damages, interest, costs of the suit and any other reliefs that this Court deems fit.

In reply to the 2nd Defendant's defence and counterclaim, the Plaintiffs 30 contended that the 1st Defendant never mentioned that he was acting for

- 5 or on behalf of the 2nd Defendant and that even the contract executed between the vendor, the 1st Defendant and the 2nd Plaintiff is clear that no one was acting as an agent and thus the 2nd Defendant is a stranger to that Agreement. Furthermore, that after being allowed to sublet, the 2nd Defendant left willingly with no merchandise left in the shop and never - 10 returned until the goodwill was sold to the 1st Plaintiff. Further, that before selling to the 1st Plaintiff, the 2nd Plaintiff sought the consent of the 1st Defendant.

On the other hand, the 1st Defendant filed his written statement of defence however, Court was informed on 13th February, 2024 by Counsel for the

15 Plaintiffs that they had abandoned their case against the 1st Defendant and thus his written statement of defence was withdrawn.

## Representation

The Plaintiffs were represented by **Learned Counsel Kikabi Ibrahim** of **M/s Kasadha & Partners Co. Advocates** while the 2nd Defendant was 20 represented by **Learned Counsel Kamukama Alex** of **M/s Magna Advocates.**

## The Hearing

The hearing of the suit proceeded by way of witness statements. The Plaintiffs called three witnesses namely; Ms. Nabiteko Robinah (**PW1)**, Ms.

Nabumba Gloria **(PW2)** and **Mr. Sekamanya Vincent (PW3).** The 2nd 25 Defendant called two witnesses, Mr. Sekitto Enock **(DW1)** and Mr. Sunday Ssali **(DW2).** All the witnesses were cross examined and re-examined accordingly. The parties also adduced documentary evidence contained in their respective trial bundles.

5 Both Counsel further filed their respective written submissions for which I am grateful and the same have been considered by Court.

## Issues for Determination

In their Joint Scheduling Memorandum dated 27th October, 2023, the parties raised the following issues for determination:

- 10 1. Whether the 1st Plaintiff lawfully acquired the goodwill and tenancy in the shop? - 2. Whether the Plaintiffs committed acts of trespass to goods, detinue and conversion of the goods belonging to the 2nd Defendant? - 3. What remedies are available to the parties? - 15 Issue No.1: Whether the 1st Plaintiff lawfully acquired the goodwill and tenancy in the shop?

## Plaintiffs' submissions

Counsel for the Plaintiffs submitted that the 1st Plaintiff lawfully acquired the shop having purchased it from the 2nd Plaintiff who had acquired it 20 from **PW3** and even signed a tenancy agreement with the property managers on 6th September, 2021 as per **PEX 7**. Counsel further submitted that it was the uncontroverted evidence of **PW2** that before the sale of the shop to the 1st Plaintiff, she called the 1st Defendant who consented to the sale. That the 1st Defendant had failed to pay the full 25 purchase price so as to acquire full control of the shop, constituting a breach of the Agreement (**PEX 1/DEX 1**) thus; causing the 2nd Plaintiff to repudiate the contract and sell the shop to the 1st Plaintiff.

- 5 Furthermore, that **PW1** testified that the 1st Defendant who earlier purchased the goodwill in the shop as per **PEX 1/DEX 1**, consented to her purchase of the same. That she also stated that she paid UGX 60,000,000/= and it was agreed that UGX 54,000,000/= would be paid back to **PW2** and the 1st Defendant, ensuring each received the amount - 10 they had initially paid as per **PEX 1/DEX1** and **PEX 2**. That in addition, it was agreed that the remaining UGX 6,000,000/= which had not been paid to **PW3**, be paid to him to which instead of introducing **PW2** and the 1st Defendant, the original purchasers, Sekamanya Vincent introduced **PW 1** as the new owner of the shop as per **PEX 5** (the letter requesting to 15 change names), and the name was duly changed from Sekamanya Vincent to **PW1's** name as evidenced by **PEX 7**.

### 2nd Defendant's submissions

In reply to the above, Counsel for the 2nd Defendant contended that as per **Section 10(5) of the Contracts Act (now Section 9(5) of the Contracts** 20 **Act, Cap. 284)**, all contracts whose subject matter exceeds twenty-five currency points, shall be in writing and that according to the case of *HJK Trading Company Ltd Vs Ahmed Zziwa HCCS No.415 of 2018*, the Court cannot enforce a contract that offends the provisions of the law. Referring to **paragraph 4 (m-p)** of the plaint, that alludes to the fact that 25 the shop was sold to the 1st Plaintiff, Counsel contended that there was no evidence attached to prove the sale. That it was **PW2's** testimony that upon the default in payment by the 2nd Defendant, she contacted the 1st Defendant who agreed to the sale of the shop. Counsel disputed the testimony contending that there is no way she would consult the 1st 30 Defendant because he had purportedly sold off his interests in the shop to the 2nd Defendant much as he used the word sublet.

- 5 Counsel also contended that the Plaintiffs' action was a connivance to deprive the 2nd Defendant of his interests in the shop as corroborated by **PW2's** testimony that after the sale of the shop, she called the 1st Defendant to pick up his money amounting to UGX 24,000,000/= but he never showed up, which is a clear testimony that he was not the owner of - 10 the shop but had bought it under the guise of the 2nd Defendant's known reasons.

Further, that although the 1st Plaintiff testified that she bought the shop, when cross-examined about the Agreement, she had no answer and during re-examination, she testified that the management did not allow owners of

15 shops to sell. Counsel further contended that even if the 2nd Plaintiff had hardships in managing the shop, she should not have sold the shop without consulting the 2nd Defendant who had interests in the shop and should have sold what she owned. Counsel relied on the common law principle of *Nemo dat quod non habet* and argued that a buyer can only 20 acquire what a seller can legally transfer and only a good faith acquirer, in the circumstances, would be protected. To that effect, Counsel referred to

## the case of *Erina Lam Oto Omgom Vs Opoka Bosco and Another HCCA No. 91 of 2019.*

Counsel further submitted that it was **DW1's** testimony that the Plaintiffs 25 were his Sisters and were aware of what was going on but decided to defraud him of his interests in the shop because of simple disagreements that he used an Uncle to buy the shop. Counsel further contended that the tenancy agreement relied upon by the 1st Plaintiff is not proof of ownership. In conclusion, Counsel for the 2nd Defendant reiterated that 30 the 1st Plaintiff violated the law when she entered into a contract of more

5 than UGX 500,000/= without a written agreement and purchased the shop without the 2nd Defendant's consent.

## Plaintiffs' submissions in rejoinder

Counsel for the Plaintiffs reiterated his previous submissions and went on to aver that it is incorrect to assert that the Court cannot enforce a contract 10 that allegedly offends **Section 10(5) of the Contracts Act (now Section 9(5) of the Contracts Act, Cap. 284)** as Courts have indeed enforced contracts that are unwritten as was the case in *Roko Construction Ltd Vs Isa Male HCMA No. 37 of 2021* and in the case of *Musoke Kitenda Vs Roko Construction Ltd HCMA No.1240 of 2020* wherein **Hon.** 15 **Justice Stephen Mubiru** held that:

*"The writing envisaged does not require a formal written contract. This requirement is satisfied by any signed writing that; reasonably identifies the subject matter of the contract; is sufficient to indicate that a contract exists, and states with reasonable certainty the material* 20 *terms of the contract. It can be a receipt or even an informal letter… part performance of an oral contract makes it enforceable in equity if the Applicant does not deny benefit of the services rendered by the Respondent."*

Counsel further averred that **PEX 5** clearly satisfies the requirement of a 25 written agreement since subsequently, the property managers entered into an Agreement with **PW1**. Counsel submitted that the parties to **PEX 1/DEX 1** including the 1st Defendant; never disputed the sale nor did he challenge the validity of the transaction. In conclusion, Counsel for the Plaintiffs prayed Court to find that **PW1** lawfully acquired the goodwill and 30 tenancy of the shop.

## 5 Analysis and Determination

I have perused the record and considered the evidence, authorities and submissions by both Counsel.

In civil cases, the burden of proof lies on the party who asserts a fact as per **Sections 101, 102, 103** and **104 of the Evidence Act, Cap. 8** and 10 the case of *Sebuliba Busuulwa Vs Co-operative Bank Ltd [1982] HCB 129* while the standard of proof is on a balance of probabilities.

The Plaintiffs herein seek among other remedies namely; a declaration that the 1st Defendant breached the contract and undertaking he had with the 2nd Plaintiff and a permanent injunction restraining the 2nd Defendant and 15 all persons claiming title under him from further trespassing on shop C 102 situate at Nakivubo Trading Centre. On the other hand, the 2nd Defendant denies the Plaintiffs' claim contending that the 1st Defendant was his agent in the purchase of the goodwill and occupancy of shop C 102, from Sekamanya Vincent and his interests in the shop were sold 20 without his consent. Therefore, this Court has to determine whether the 1st Plaintiff lawfully acquired the goodwill and tenancy in shop C 102.

I am mindful of the fact that it is not the function of the Court to make contracts between the parties but rather to construe the surrounding circumstances to effectuate their intentions as stated in the case of *Omega*

25 *Bank PLC Vs O. B. C. Limited [2005] 8 NWLR (pt.928) 547.*

**Section 9(1) of the Contracts Act, Cap. 284** defines a contract as 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. Breach of a contract, on the other hand, is where one or 30 both parties fail to fulfil the obligations imposed by the terms of the 5 contract. (See: *Nakawa Trading Co. Ltd Vs Coffee Marketing Board Civil Suit No.137 of 1991*).

While relying on **Section 91 of the Evidence Act**, **Hon. Lady Justice C. K. Byamugisha** (as she then was) in the case of *William Kasozi Vs DFCU Bank Ltd HCCS No.1326 of 2000,* stated that:

10 "*Once a contract is valid, it creates reciprocal rights and obligations between the parties to it. I think it is the law 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*."

In his submissions, Counsel for the 2nd Defendant disputed the legality of 15 the oral contract between the 1st Plaintiff and 2nd Plaintiff contending that it violated the then **Section 10(5)** now **Section 9(5) of the Contracts Act**.

**Section 9(2) of the Contracts Act** provides that a contract may be oral, written, partly oral and partly written or may be implied from the conduct of the parties.

- 20 In the case of *Hon. Justice Anup Singh Choudry Vs Mohinder Singh Channa and Another, Civil Suit No. 335 of 2014,* **Hon. Justice Ssekaana Musa** quoted the case of *Greenboat Entertainment Ltd Vs City Council of Kampala Civil Suit No.580 of 2003*, in which the Court held that:

25 *"In general, oral contracts are just as valid as written ones. An oral contract is a contract, the terms of which have been agreed by spoken communication, in contrast with a written one, where the contract is a written document. In my view whether a contract is oral or written, it must have the essentials of a valid contract."*

5 The same case discussed the essentials of a valid contract and Court held that:

*"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* 10 *terms. If in a given transaction any of them is missing, it could as well be called something other than a contract."*

As was held in the case of *Hon. Justice Anup Singh Choudry Vs Mohinder Singh and Another (supra),* enforcing an oral contract depends on the circumstances of each case and as stated by **Hon. Justice** 15 **Ssekaana Musa**, some of the guidelines in the establishment of such a contract are; the conduct of the parties after the alleged contract was created, any prior conduct between the parties, how similar transactions are normally conducted, testimony of the parties to the contract, testimony by witnesses to the alleged agreement and each party's credibility.

20 According to the testimony of **PW1**; upon payment of the consideration, **PW2** introduced **PW1** to **PW3**, the initial owner of the shop, who through **PEX 5** introduced her to the property managers and even went ahead to request that they sign a new tenancy agreement with her in respect of the suit premises to which a new tenancy agreement (**PEX 7**) was executed. 25 This was corroborated by the testimonies of **PW2** and **PW3**.

In evidence, the Plaintiffs presented **PEX 5** (the letter from **PW3** requesting the property managers to enter into a tenancy agreement with the 1st Plaintiff) and **PEX 7** (a tenancy agreement between Property Service Limited and the 1st Plaintiff as a tenant of the suit premises). The 2nd 30 Defendant did not adduce any evidence to contravene the same. Instead,

5 he argued that the 1st Plaintiff should have had a written contract with the 2nd Plaintiff as was the case between **PW2**, the 1st Defendant and **PW3** as per **PEX 1/DEX 1**. I find that argument to be baseless because, as testified by **PW2**, **PW3** was to introduce **PW2** and the 1st Defendant to the property managers however that could not happen since they had not finished 10 payment of the full consideration and so when **PW1** purchased the suit premises and as shown by **PEX 5**, the oral contract was concluded and finalized when the property managers entered into a tenancy agreement with the 1st Plaintiff on 6th September, 2021 as per **PEX 7**. Considering the above, I find the oral agreement between the 1st Plaintiff and 2nd Plaintiff 15 valid since it resulted into the execution of **PEX 7** that was not disputed by the 2nd Defendant.

The 2nd Defendant also contended that the 2nd Plaintiff did not have a good title in the suit premises for her to transfer the same to the 1st Plaintiff. Counsel for the 2nd Defendant referred to the principle of *Nemo dat quod* 20 *non habet*, which simply translates as, "no one can give what they do not have." The principle is reflected under **Section 29(1) of the Sale of Goods and Supply of Services Act, Cap. 292** which stipulates that:

*"Subject to this Act, where goods are sold by a person who is not the owner of the goods and who does not sell them under the authority or* 25 *with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his or her conduct precluded from denying the seller's authority to sell*."

I have perused **PEX 1/DEX 1** dated 12th November, 2019 and it is an agreement for sale of a shop C 102 on goodwill. Therein; Sekamanya 30 Vincent (**PW3**) agreed to sale his Shop C 102 on goodwill to Nabumba Gloria (the 2nd Plaintiff) and Ssenoga Willy (the 1st Defendant). More so, as

- 5 per the testimonies of both the Plaintiffs' and Defendants' witnesses, it is an undisputed fact that the 2nd Plaintiff and the 1st Defendant jointly bought occupancy interests in the suit premises therefore, the 2nd Plaintiff had interests in the shop. In the premises, I hereby find that the 2nd Plaintiff had good title regarding her interests in the shop. - 10 What is left for determination, is whether it was lawful for the 2nd Plaintiff to sell the interests in the shop to the 1st Plaintiff?

In her testimony, **PW2** averred that she sold the shop with the consent of the 1st Defendant because the 2nd Defendant had been introduced to her as a sub-tenant and not the owner and that he had started defaulting in

- 15 fulfilling his obligations such as rent on various occasions and had left the shop without notifying her. On the other hand, the 2nd Defendant argued that the 1st Defendant was only his agent in the purchase, hence his consent should have been sought and further that he did not breach any terms of the contract. The Plaintiffs insisted that the 2nd Defendant was - 20 not part of **PEX 1/DEX 1** and therefore, his consent was not needed. This therefore brings up the following questions for determination: - i. Whether the 2nd Defendant was privy to **PEX 1/DEX 1** dated 12th November, 2019? and - ii. Whether there was any breach to repudiate the said 25 Agreement?

i) Whether the 2nd Defendant was privy to **PEX 1/DEX 1** dated 12th November, 2019?

#### 5 Plaintiffs' submissions

In his submission, Counsel for the Plaintiffs relied on **PEX 1** and submitted that the purchasers of the suit premises were Nabumba Gloria, the 2nd Plaintiff and Ssenoga Willy, the 1st Defendant. That since the 2nd Defendant's name does not appear anywhere in the agreement, then he is

- 10 not a party to the same. That even **DW1** and **DW2** also testified that **PW 2** was unaware that it was the 2nd Defendant purchasing the shop. Counsel further submitted that under the doctrine of privity of a contract, it is a general rule that only parties to a contract have the legal stand to enforce its terms or be bound by its obligations, regardless of any intended benefits - 15 or liabilities towards third parties as was established in the case of *Dunlop Pneumatic Tyre Co. Ltd Vs Selfridge & Co. Ltd [1915] AC 847*.

Furthermore, Counsel submitted that **DW1** and **DW2's** assertion of an agency relationship between the 1st Defendant and the 2nd Defendant in the purchase of the suit premises lacks substantive evidence and the 20 failure to provide any corroborating evidence violates the parole evidence rule. Referring to the case of *Future Stars Investment (U) Ltd Vs Nasuru Yusuf Civil Suit No.12 of 2017*, Counsel submitted that **Hon. Justice Stephen Mubiru** held that the common law parole evidence rule is to the effect that once the terms of the contract are reduced into writing, any 25 extrinsic evidence meant to contradict, vary, alter or add to the expressed terms of the contract is generally inadmissible. In conclusion, Counsel submitted that the contracts **PEX 1** and **PEX 2** were clear and reduced into writing and the 2nd Defendant was not included as a party.

In respect of **DEX 2** dated 27th September, 2021; Counsel for the Plaintiffs 30 disputed the same contending that it was **PW2's** testimony that she was coerced into signing the said memorandum as she was in Police custody

5 hence nullifying its validity. He referred to the case of *Rose Nanfuuma Muyiisa Vs Ruth Kijjambu HCCS No.651 of 2013* wherein Court relied on the case of *Pao On Vs Lau [1979] 3 All ER 78* where **Lord Scarman** held that:

*"Duress, whatever form it takes, is a coercion of the will so as to vitiate* 10 *consent… There must be present some factors 'which could in law be regarded as a coercion of this will so as to vitiate consent."*

That **PW2** testified that she was coerced into signing **DEX 2** since she was threatened to be put in Police custody if she declined to sign the same and that however, after signing the said memorandum, the Plaintiffs on 8th 15 October, 2021 instituted this suit. Further, that **DW1** confirmed that the memorandum was made at Police yet no case reference was entered. In conclusion, Counsel for the Plaintiffs submitted that **DEX 2** is illegal, irregular and not binding and deviates from **PEX 1** considering the fact that **PW3,** who had the legal right to sell the suit premises had already 20 transferred ownership to **PW2** and the 1st Defendant prior to its execution.

### 2nd Defendant's submissions

In reply, Counsel for the 2nd Defendant agreed with the submissions of Counsel for the Plaintiffs on the rule of privity of contracts but added that **Section 92(a) of the Evidence Act** provides an exception to the rule 25 which is to the effect that a fact may be proved to invalidate any document which would entitle any person to any decree or order relating thereto as fraud, intimidation, illegality and others. Counsel then established indicators to show that the 1st Defendant was acting on behalf of the 2nd Defendant.

- 5 As per Counsel's submissions, the first indicator was **DW1's** testimony that **PW2** contacted him to purchase the suit premises from Sekamanya Vincent to which he sent the 1st Defendant and Nampijja Ritah to deliver the money. That another indicator is portrayed under **paragraph 4 (m-n)** of the plaint wherein the Plaintiffs stated that after the purchase, the 2nd - Defendant was introduced by the 1st Defendant. Thirdly, that the 2nd 10 Plaintiff stated in the plaint, that after selling the shop, she called the 1st Defendant to pick up the money but to date, he has never come to pick up the same. Fourthly, that when the 2nd Plaintiff and 1st Defendant made further payments as portrayed by **PEX 2** and **DEX 2**, the 1st Defendant 15 signed as a witness instead of a purchaser. Fifthly, that upon the sale, the 2nd Defendant reported the matter to Police whereupon, the 2nd Plaintiff accepted that she bought the shop with the 2nd Defendant as seen by **DEX 2**. In conclusion, Counsel submitted that much as there was a written

agreement, the above oral evidence proves the contrary.

20 In reply to Counsel for the Plaintiffs' submissions on **DEX 2,** Counsel for the 2nd Defendant submitted that it was **DW1's** testimony that upon reporting the matter to the Police, the Community Liaison Officer counselled them and the 2nd Plaintiff agreed that it was the 2nd Defendant who had purchased the suit premises. That the agreement having been 25 made at Police does not suggest duress nor the non-filing of this case. As for its binding effect, Counsel submitted that **DEX 2** is binding as it was an in-house cleaning hence the landlord's presence was unnecessary and therefore, the Agreement is binding.

### Plaintiffs' submissions in rejoinder

30 Counsel for the Plaintiffs reiterated his previous submissions and went on to submit that **PEX 1** and **PEX 2** are very clear and that no exceptions

5 were given by Counsel for the 2nd Defendant for Court to move away from the parole evidence rule save for his speculations. That as testified by **PW3,** he sold the suit premises to **PW2** and the 1st Defendant to which **PEX 1** was executed and that it is not shown anywhere that the 1st Defendant admits that he bought the shop on behalf of the 2nd Defendant. 10 Furthermore, that Nampijja Ritah never testified in Court and therefore,

In conclusion, Counsel for the Plaintiffs prayed Court to find that the 2nd Defendant was a stranger to **PEX 1** since he failed to give any exceptional

Counsel for the 2nd Defendant is adducing evidence in the submissions.

## 15 Analysis and Determination

circumstances to the parole evidence rule.

Considering the issue of privity of contract, **Halsbury's Laws of England, 4th Edition, Volume 9 (1) Paragraph 748** states that:

*"… The doctrine of privity of contract is that, as a general rule, at common law a contract cannot confer rights or impose obligations* 20 *on strangers to it, that is persons who are not parties to it. The parties to a contract are those persons who reach an agreement and, whilst it may be clear in a simple case who those parties are, it may not be so obvious where there are several contracts, or several parties, or both…*"

# 25 Furthermore, in the case of *Gulf Cross Limited & Another Vs Shree Hari Titles Limited & Another Civil Suit No.0753 of 2018*, **Hon. Justice Stephen Mubiru** held that:

"*A contract is not merely a promise but a promise supported by consideration, i.e. a bargain. If someone is not a party to the*

- 5 *bargain, he or she is not a party to the contract. A third party may not enforce a contract except where it was made expressly for his or her benefit in such circumstances that it was intended to be enforceable by him or her (see Drive Yourself Hire Co (London) Ltd Vs Strutt [1954] 1 QB 250)*." - 10 As depicted above, a contract only affects parties to it and cannot be enforced by a stranger. The controversy in the instant case is that while the Plaintiffs contend that the 2nd Defendant is not privy to **PEX 1/DEX 1**, the 2nd Defendant insists that the 1st Defendant acted as his agent in the purchase of the suit premises. - 15 **Section 117 of the Contracts Act** defines an agent as a person employed by a principal to do any act for that principal or to represent the principal in dealing with a third person and a principal as a person who employs an agent to do any act for him or her or represent him or her in dealing with a third person. - 20 As per **Section 121(1) of the Contracts Act**, the authority of an agent may be express or implied. **Section 121(2) and (3) of the Contracts Act** further explains that the authority is express where it is given by spoken or written words and implied where it is to be inferred from the circumstances of a case and that any words, spoken or written, in the 25 ordinary course of a dealing, may be taken into account, depending on the circumstances of the case.

To prove his case, the 2nd Defendant relied on circumstantial evidence as submitted by his Counsel that the 2nd Plaintiff contacted him about the purchase of the shop and that is when he gave a one Nampijja Ritah money 30 to take to the 1st Defendant. Despite Nampijja Ritah's witness statement - 5 being filed on Court record, she did not testify and though **DW2** (Sunday Ssali) testified to the same, his testimony showed that he was only informed by **DW1** about the transaction. Therefore, both averments are inadmissible. - The 2nd Defendant also alluded to the pleadings in **paragraph 4 (m-n)** of the plaint wherein the Plaintiffs stated that after the purchase, the 2nd 10 Defendant was introduced by the 1st Defendant. **Paragraph 4 (f)** instead of (m-n), as submitted by Counsel, stated that after the 2nd Plaintiff and 1st Defendant entered possession of the shop, the 1st Defendant sublet his portion to the 2nd Defendant to begin operating business within the shop 15 with the same conditions of payment of rent, utility expenses, trade license, incidental costs and balance of the consideration of the purchase of the goodwill. The said paragraph does not make any inference that the 1st Defendant acted for or on behalf of the 2nd Defendant in the purchase of the suit premises. - 20 Regarding the 2nd Plaintiff's statement in the plaint that after selling the shop, she called the 1st Defendant to pick up the money but to date, he has never come and that when the 2nd Plaintiff and 1st Defendant made further payments as portrayed by **PEX 2** and **DEX 2**, the 1st Defendant signed as a witness instead of a purchaser. **DEX 2** is an acknowledgement of the fact that the 2nd Defendant bought the suit premises with the 2nd 25 Plaintiff whereas **PEX 2** is an acknowledgment of receipt of UGX 14,000,000/= by **PW3**.

**DW1** testified that when he reported the matter to Police, the 1st Defendant and the 2nd Plaintiff were summoned and while at Police, they conceded to 30 the fact that he had interests in the shop. The 2nd Defendant did not specify which interests he had in the shop and more so, no evidence was adduced

- 5 to prove that the 1st Defendant had conceded to the same. This would then raise a question of, why wasn't the 1st Defendant made to concede in writing that he had bought the suit premises on behalf of the 2nd Defendant just like the 2nd Plaintiff was made to sign an acknowledgement (**DEX 2**) stating that the 2nd Defendant had bought the suit premises with her? - 10 I have also observed that the 1st Defendant was indeed a witness in the execution of both **PEX 2** and **DEX 2** however, despite his involvement in these acknowledgments, he still did not state that he bought the suit premises on behalf of the 2nd Defendant which is all that was needed to confirm the 2nd Defendants alleged interests. In the premises, this Court 15 is not convinced that the 1st Defendant purchased his interests in the suit premises for or on behalf of the 2nd Defendant.

Lastly, Counsel for the Plaintiffs contested **DEX 2;** on grounds that the signature was obtained by coercion. It is trite that a contract obtained under mistake, misrepresentation, duress or undue influence is voidable.

20 The **Black's Law Dictionary 9th Edition** at **page 578** defines duress to include actual or threatened violence or imprisonment made to compel a person to do something against their will or judgment.

It was also held by **Lord Scarman** in the case of *Pao On Vs Lau (supra)* that:

25 "*Duress, whatever form it takes, is a coercion of the will so as to vitiate consent…There must be present some factor 'which could in law be regarded as a coercion of this will so as to vitiate consent'. In determining whether there was a coercion of will such that there was no true consent, it is material to enquire whether the person* 30 *alleged to have been coerced did or did not protest; whether at the*

5 *time he was allegedly coerced into making the contract, he did or did not have an alternative course open to him such as an adequate legal remedy whether he was independently advised; whether after entering he took steps to avoid it. All these matters are, as was recognized in Maskell Vs Home [1915] 3 KB 106, as* 10 *relevant in determining whether he acted voluntarily or not" Burton Vs Armstrong [1976] AC 104 at 12***1.**"

Furthermore, in the case of *Nakalima Vs Ann Nandawula Kabali, Misc. Application No. 235 of 2013*, the Court held that:

"*It is therefore necessary for the Applicant relying on the ground of* 15 *duress to prove that unlawful pressure was applied on him or her so as to lose his or her free will. Threat of the process of Court cannot be unlawful pressure and is always exacted by litigants or potential litigants to threaten anybody they claim is in breach of the law to comply with their demands or else face the due process* 20 *of law. Consequently, it is necessary to establish by evidence that the force or threat of force or pressure which was applied was unlawful pressure and that as a consequence thereof, the Applicant lost her free will*."

In the instant case, **PW2** testified that when the 2nd Defendant reported 25 her to Police, she was put into Police custody and forced to sign **DEX 2** or else she was going to be imprisoned. She emphasized the same during her cross-examination. In his submissions, Counsel for the 2nd Defendant did not adduce any evidence to rebut the above testimony but rather argued that a statement made at Police does not mean that it was made under 30 duress.

- 5 I have considered the testimonies of both **DW1** and **PW2** as analyzed above, the fact that this suit was filed on 8th October, 2021 to avoid the implementation of **DEX 2** and the fact that **PW2** signed **DEX 2** while in Police custody in the witness of the 1st Defendant who still did not attest to the fact that he had bought his interests in the shop for or on behalf of - 10 the 2nd Defendant hence suggesting that **PW2** was coerced. In the circumstances, this Court is convinced that the 2nd Plaintiff was coerced into signing **DEX 2** hence vitiating its legality.

Having analyzed all the above, it is my finding that this Court is not convinced that the 1st Defendant purchased his interests in the suit 15 premises for or on behalf of the 2nd Defendant but rather the 2nd Defendant was a subtenant in the shop. I also find **DEX 2** to be null and void for lack of proper consent. Accordingly, I find that the 2nd Defendant is not privy to **PEX 1/DEX 1**.

#### ii) Whether there was any breach to repudiate the said Agreement?

It was **PW2's** testimony that she entered into a contract with the 1st 20 Defendant to purchase the suit premises from Sekamanya Vincent (**PW3**) at a consideration of UGX 60,000,000/= and upon the final payment, **PW 1** was to introduce them to the property managers. However, that the 1st Defendant only paid UGX 24,000,000/= leaving an outstanding payment 25 of UGX 6,000,000/=. That the 1st Defendant and the 2nd Plaintiff occupied the suit premises for a while and later the 1st Defendant introduced the 2nd Defendant as his sub-tenant to do his duties such as payment of rent, utility bills, and the remaining UGX 6,000,000/=. That the 2nd Defendant started operating the shop however on several occasions, he defaulted on 30 his obligations and later on in July, 2021, he left the shop without

5 notifying her. That due to the defaults, the property owners locked the shop and sent auctioneers to sell her property.

That the 2nd Defendant was not willing to pay his half of the rental obligations to which **PW2** decided to sell the interests in the shop to **PW1.** During cross-examination, she testified that she sold the shop with the 10 consent of the 1st Defendant. In corroboration, **PW3** testified that the shop was closed and he was informed about it by the property managers as the known tenant. He also confirmed that it was the 1st Plaintiff (**PW1)** who paid him the remaining UGX 6,000,000/=.

**PW1** further testified in re-examination that she agreed with **PW2** that **PW2** was going to return UGX 24,000,000/= to Ssenoga Willy (1st 15 Defendant) and that they even called him and he confirmed. **PW1** testified that:

*"When she showed me the agreement, then we agreed I am going to give you 54M, but Gloria was going to return 24M to Ssenoga* 20 *because Ssenoga had paid 24M. We even called him and he confirmed."*

In light of the above, it would appear that the 2nd Plaintiff and the 1st Defendant reached an agreement and that is possibly the reason as to why the Plaintiffs' lost interest in the case against the 1st Defendant.

25 It was also confirmed by both **DW1** and **DW2** that the 2nd Defendant at one moment left the shop because he had financial hardships. **DW1** also confirmed that he was indebted to the Plaintiffs and was even in rent arrears. **DEX 4** dated 5th October, 2021 was presented to prove his acknowledgement of USD 3,000 as rent arrears. However, no evidence was 30 led to show that the said money was ever paid.

- 5 Considering the above, it is proved that at the time of the sale of the occupancy interests in the suit premises, the 2nd Defendant as a tenant had not paid the remaining purchase price as agreed with the 1st Defendant. He also left other responsibilities to the 2nd Plaintiff without notice. According to her testimony, the 2nd Plaintiff was financially - 10 struggling and could not run the shop and therefore, it was commercially viable for her to try and save her investment in the shop by selling the same to the 1st Plaintiff.

Having held that the 2nd Defendant was a sub-tenant and not an owner as alleged, then the 2nd Plaintiff rightly sought the consent of the 1st Defendant so as to transfer the goodwill and tenancy in the shop to the 1st 15 Plaintiff and consequently it was agreed that the 1st Defendant would be refunded the money he had paid. Given the above, I find the 1st Plaintiff to have lawfully acquired the goodwill and the tenancy in the suit premises.

Accordingly, issue No. 1 is answered in the affirmative.

20 Issue No. 2: Whether the Plaintiffs committed acts of trespass to goods, detinue and conversion of the goods belonging to the 2nd Defendant?

# 2nd Defendant's submissions

In his Counterclaim, the 2nd Defendant avers that his goods in the shop were trespassed on and converted when they were sold to the 1st Plaintiff

- 25 without his consent and the proceeds of the sale were never given to him. That he gave evidence to that aspect and the same was not challenged. Counsel submitted that trespass to goods consists of unlawful disturbance of the possession of the goods by seizure, removal or by a direct act causing damage to the goods. Whilst referring to the case of *Oketha Dafala* - 24 30 *Valente Vs the Attorney General HCCS No.69 of 2004*, Counsel

- 5 submitted that to constitute conversion, there must be a positive wrongful act of dealing with the goods in a manner inconsistent with the owners' rights and with an intention to deny the owner of his right to the goods or to assert a right inconsistent with them. That the 2nd Plaintiff admitted that the 2nd Defendant had merchandise as a sub-tenant but does not - 10 account for it, not even the amount of UGX 24,000,000/= and thus Counsel invited the Court to make a finding that the Plaintiffs trespassed on the 2nd Defendant's goods.

Counsel for the 2nd Defendant also submitted in respect of whether the 2nd Defendant took away goods worth UGX 11,280,000/= from the shop belonging to the 2nd Plaintiff. Counsel submitted that indeed the 2nd 15 Defendant testified to having taken out goods worth UGX 6,663,000/= belonging to the 2nd Plaintiff and that upon being demanded by the 2nd Plaintiff, he returned goods worth UGX 5,680,000/= leaving a balance of UGX 983,000/= as reflected in **DEX 3.** Counsel further averred that if at 20 all the 2nd Plaintiff was demanding more than what is reflected in **DEX 3**,

she would have contested the same but she did not.

## Plaintiffs' submissions

In his submissions, Counsel for the Plaintiffs did not submit on the above issue but instead submitted that it is the 2nd Defendant who committed 25 acts of trespass to goods, detinue and conversion of the 2nd Plaintiff's goods.

Counsel defined trespass to goods according to **Winfield & Jolowicz on Tort Law 11th Edition at page 446**. In discussion of detinue and conversion, Counsel referred to the case of *Vincent Mukasa Vs Nile* 30 *Safaris Limited CACA No.50 of 1997,* wherein the Court cited the case

- 5 of *Charles Douglas Cullen Vs Parsram and Hansraj [1962] E. A.159*. Relating the above to the matter at hand, Counsel for the Plaintiffs submitted that the 2nd Defendant's action of taking the Plaintiffs' goods without authorization which action was admitted by the 2nd Defendant, constituted both detinue and conversion. That the 2nd Defendant took the - 10 2nd Plaintiff's goods valued at UGX 11,280,000/= without authorization. That despite returning goods worth UGX 5,680,000/=, a balance of UGX 5,600,000/= remained instead of UGX 983,000/= as shown in **DEX 3.** In conclusion, Counsel prayed that the 2nd Defendant be held liable for the balance of the goods amounting to UGX 5,600,000/=.

### 15 Plaintiffs' submissions in rejoinder

In respect of whether the 2nd Defendant committed acts of trespass to goods, detinue and conversion of the goods belonging to the 2nd Plaintiff; Counsel for the Plaintiffs reiterated his earlier submissions and went on to submit that according to **DEX 3,** only part of the goods were recovered 20 and that there was a balance of UGX 983,000/=. Counsel further submitted that the 2nd Plaintiff never contested the same since she knew that the other goods would be returned to her at a later date. Counsel reiterated his prayer that the 2nd Defendant only returned goods worth UGX 5,680,000/= out of UGX 11,280,000/= leaving a balance of UGX 25 5,600,000/= instead of UGX 983,000/=.

On whether the 2nd Plaintiff committed acts of trespass to goods, detinue and conversion of goods belonging to the 2nd Defendant; Counsel for the Plaintiffs submitted that in accordance with **Section 101 of the Evidence Act**, he who alleges must prove and that the standard of proof in all civil cases is on the balance of probabilities. Counsel argued that the 2nd 30 Defendant never adduced any evidence to prove that the Plaintiffs had

5 taken his goods/stock. In conclusion, Counsel for the Plaintiffs prayed that Court finds that the Plaintiffs never trespassed or committed acts of conversion on the goods belonging to the 2nd Defendant.

### Analysis and Determination

The tort of trespass to goods was defined in the case of the *Departed*

10 *Asians Property Custodian Board Vs Issa Bukenya T/a New Mars War House SCCA No. 26 of 1992*, to consist of any unlawful disturbance of the possession of the goods by seizure, removal or by a direct act causing damage to the goods. The Supreme Court went on to define detinue as a tort consisting of wrongful withholding of the Plaintiff's goods which is 15 alleged if the Plaintiff wishes to recover possession of the goods and not merely their value.

According to **Winfield and Jolowicz on Tort 16th edition** at **page 596**, a tort of conversion is committed:

*"…by dealing with the goods of a person which deprives him of the* 20 *use or possession of them. Thus it may be committed by wrongfully taking possession of goods, by wrongfully disposing of them, by wrongfully destroying them or simply by wrongfully refusing to give then up when demanded."*

Having considered the above definitions, I shall first resolve whether the 25 2nd Defendant committed any acts of trespass to goods, detinue and conversion of the 2nd Plaintiff's goods.

According to **DEX 3** dated 30th September, 2021 and titled "*Memorandum of Understanding between Mr. Sekitto Enock and Ms. Nabumba Gloria as Regards Shs. 6,663,000/="*, the 2nd Plaintiff and the 2nd Defendant - 5 executed a memorandum of understanding wherein the 2nd Plaintiff acknowledged being given back items worth UGX 5,680,000/= by the 2nd Defendant. Also, it was agreed that the remaining balance was UGX 983,000/=. - However, Counsel for the Plaintiffs submitted that as averred in the plaint, 10 the 2nd Defendant took the 2nd Plaintiff's goods worth UGX 11,280,000/= to which he only returned items worth UGX 5,680,000/= leaving a balance of UGX 5,600,000/= instead of UGX 983,000/= as reflected under **DEX 3.** Considering the principles of the parole evidence rule already explained under issue No. 1 above and considering the fact that the 2nd Plaintiff did 15 not adduce any evidence to prove that it was UGX 11,280,000/= instead of UGX 6,663,000/= as per **DEX 3** which she duly signed; this Court is not convinced that the goods taken were worth UGX 11,280,000/= as alleged by the 2nd Plaintiff. - Given the fact that the 2nd Defendant during his cross-examination, did 20 not dispute being indebted to the 2nd Plaintiff to the tune of UGX 983,000/=, this Court finds the 2nd Defendant liable and therefore the 2nd Plaintiff is entitled to be paid the balance of UGX 983,000/= arising out of **DEX 3** by the 2nd Defendant. - Regarding the issue of whether the Plaintiffs committed any acts of 25 trespass to goods, detinue and conversion of the 2nd Defendant's goods, the 2nd Defendant did not adduce any evidence to show which merchandise he brought into the shop and how much it was worth. Further, it was the testimony of **DW 1** during cross-examination that when he came back from lock down, he got his things out of the shop. **DW1** 30 testified that:

5 *"I paid some and there was a balance and when I came back from lock down, I got my things out and that the remaining balance was paid for me."*

In the circumstances, I do not find sufficient evidence for this Court to find that the 2nd Plaintiff committed any acts of trespass to goods, detinue or 10 conversion of the 2nd Defendant's goods. The 2nd Defendant in his testimony did not mention the type of goods if any; that he had bought or adduce evidence in relation to the amount spent on the goods and therefore in the absence of any evidence, I decline to award the same.

In respect of the accountability of UGX 24,000,000/=; having held that the 15 2nd Defendant was just a sub-tenant and not a co-owner of the suit premises he was not entitled to receive UGX 24,000,000/= from the 2nd Plaintiff as the same was meant for the co-owner of the suit premises, who in this case was the 1st Defendant. As testified by **PW1**, it was agreed that the sum of UGX 24,000,000/= was to be paid to Ssenoga Willy (1st 20 Defendant). This in my view is convincing since it is Ssenoga Willy who indeed paid UGX 24,000,000/= and the same should have been refunded

In the premises, this Court finds that the 2nd Defendant is liable for trespassing on the 2nd Plaintiff's goods, detinue and conversion and is 25 therefore liable to pay the 2nd Plaintiff UGX 983,000/= as agreed under **DEX 3** however, the Plaintiffs did not commit any acts of trespass to goods, detinue and conversion of the 2nd Defendant's goods. The 2nd Defendant can however pursue the 1st Defendant for payment of UGX 24,000,000/= if indeed there was an understanding between the two which has not been 30 proved in this matter.

to him and not the 2nd Defendant.

## 5 Issue No.3: What are the remedies available to the parties?

In their plaint, the Plaintiffs sought the following remedies; an order for payment of UGX 11,280,000/= as the total purchase price for the goods taken by the 2nd Defendant and their agents from the 2nd Plaintiff, a declaration that the 1st Defendant breached the contract and undertakings 10 he had with the 2nd Plaintiff, a declaration that due to the fundamental continuous breaches, the said contract and undertakings were repudiated

by the 2nd Plaintiff, a declaration that the suit premises, shop C 102 situate at Nakivubo Trading Centre, are owned by the 1st Plaintiff, a permanent injunction restraining the 2nd Defendant and all persons claiming title 15 under him from further trespassing on the suit premises, general damages, interest and costs of the suit.

In his Counterclaim, the 2nd Defendant also sought the following remedies; a declaration that the sale of the goodwill to the 1st Plaintiff was illegal, a declaration that the Plaintiffs trespassed on his goods, a declaration that

20 the Plaintiffs are liable for conversion and detinue, special damages, general damages, interest, costs of the suit and any other reliefs that this Court deems fit.

## Analysis and Determination

The orders and declarations being sought by both the Plaintiffs and the 25 2nd Defendant have already been dealt with under the resolution of issues No. 1 and 2 and therefore the same will not be reproduced herein. I have also observed that despite seeking certain remedies in the Counterclaim, Counsel for the 2nd Defendant did not submit on the same.

## 5 a) Special damages

In his Counterclaim, the 2nd Defendant sough special damages amounting to UGX 51,000,000/= consisting of a claim for the cost of the goods, loss of daily sales and loss of good will. However, Counsel for the 2nd Defendant did not submit on the same.

- 10 In the case of *Mugabi John Vs Attorney General HCCS No.133 of 2002*, special damages were defined as damages that relate to past expenses and loss of earnings which arise out of special circumstances of a particular case. It is also trite that special damages must not only be specifically pleaded but must also be strictly proved. *(*See: *Borham-Carter Vs Hyde* - 15 *Park Hotel Ltd [1948] 64 TLR* and *W. M Kyambadde Vs Mpigi District Administration [1983] HCB* **44).**

As stated in the cases of *Gapco (U) Ltd Vs A. S Transporters (U) Ltd CACA No.18 of 2004* and *Haji Asuman Mutekanga Vs Equator Growers (U) Ltd, SCCA No. 7 of 1995*, strict proof does not mean that proof must 20 always be documentary evidence. Special damages can also be proved by direct evidence; for example, by evidence of a person who received or paid or testimonies of experts conversant with the matter.

In the instant case, the 2nd Defendant specially pleaded the special damages however, no evidence was led to prove the same. The claims for 25 the cost of goods and loss of goods were dealt with under Issue No. 1 and 2 hereinabove. In respect of the claim for loss of daily sales, no evidence was led by the 2nd Defendant to prove the same. In the premises, the claim for special damages in the Counterclaim hereby fails.

#### 5 b) General damages

The Plaintiffs sought general damages of UGX 30,000,000/= (Uganda Shillings Thirty Million Only), for trespass on the goods and inconvenience caused by the 2nd Defendant.

In the case of *Kabandize John Baptist and 21 Others Vs Kampala* 10 *Capital City Authority CACA No. 36 of 2016,* Court held that:

*"The general rule regarding the measure of general damages is that, the award is such a sum of money that will put the party who has been injured or who has suffered as adjudged by Court in the same position as he or she would have been had he or she not sustained* 15 *the wrong for which he or she is getting the compensation."*

According to the case of *Uganda Commercial Bank Vs Deo Kigozi [2002]1 EA 305*, in assessing of quantum of damages, Courts are mainly guided by the value of the subject matter, the economic inconvenience that a party might have been put through and the nature and extent of the 20 breach or injury suffered. By their nature, general damages should be compensatory in that they should restore some satisfaction, as far as money can do, to the injured Plaintiff. (See: *Takiya Kashwahiri & Anor Vs Kajungu Denis, CACA No.85 of 2011*).

In respect of the claim for general damages, I have considered the fact that 25 the 2nd Defendant inconvenienced the Plaintiffs by forcefully re-entering the shop and that this matter was filed by the Plaintiffs as a result of the 1st and 2nd Defendants actions. On the quantum to award as general damages, I have also considered the fact that the Plaintiffs abandoned the case against the 1st Defendant whom the 2nd Plaintiff had an undertaking 30 with in respect of the shop and certainly had questions to answer in

- 5 respect of this transaction. Accordingly, having considered all the above, the Plaintiffs are hereby granted general damages amounting to UGX 4,000,000/= (Uganda Shillings Four Million Only). - c) Rent arrears

Counsel for the Plaintiffs in his submissions prayed for rent arrears when 10 the 2nd Defendant was still in possession of the shop amounting to USD 4947and not USD 3000. This prayer was not pleaded and no evidence was led to prove the same. I shall accordingly decline to award the claimed sums.

# d) Permanent Injunction

The Plaintiffs prayed for a permanent injunction restraining the 2nd 15 Defendant and all persons claiming title under him from further trespassing on the suit premises.

In the case of *Akena Christopher and Others Vs Opwonya Noah High Court Civil Appeal No. 35 of 2016*, **Hon. Justice Stephen Mubiru** 20 stated that permanent or final injunctions are a remedy against an infringement or violation which has been proved at trial.

Having held under Issue No. 1 that the 2nd Defendant was a sub-tenant and that the 1st Plaintiff lawfully acquired the goodwill and tenancy in the suit premises, the 1st Plaintiff is entitled to the equitable relief of a 25 permanent injunction as prayed, restraining the 2nd Defendant and all persons claiming title under him from interfering with the suit premises.

#### 5 e) Costs of the suit

**Section 27(2) of the Civil Procedure Act, Cap. 282** provides that costs of any action shall follow the event unless there is a good reason for the Court to direct otherwise. Furthermore, in the case of *Uganda Development Bank Vs Muganga Construction Co. Ltd [1981] HCB 35,* 10 **Hon. Justice Manyindo** (as he then was) held that:

> *"A successful party can only be denied costs if it is proved, that but for his or her conduct, the action would not have been brought. The costs will follow the event where the party succeeds in the main purpose of the suit."*

15 In the circumstances, since there is no reason to deprive the Plaintiffs of the same, they are entitled to costs of the suit. However, since the Plaintiffs suit was against the 1st Defendant as well for breach of contract which they later abandoned, it would not be fair for the 2nd Defendant to meet the costs wholly. I therefore order that the 2nd Defendant meets 50%

20 of the taxed costs payable to the Plaintiffs.

In the premises, the following orders are issued:

- 1. The 1st Plaintiff lawfully acquired the goodwill and tenancy in shop C 102 situate at Nakivubo Trading Centre. - 2. The 2nd Defendant shall pay UGX 983,000/= (Uganda Shillings Nine - 25 Hundred Eighty-Three Thousand Only) to the 2nd Plaintiff as the remaining balance for the items/goods that he took. - 3. A permanent injunction is hereby issued against the 2nd Defendant, his agents and anyone claiming title under him, restraining them from interfering with the suit premises.

- 5 4. The 2nd Defendant shall pay general damages of UGX 4,000,000/= (Uganda Shillings Four Million Only) to the Plaintiffs. - 5. The 2nd Defendant shall meet 50% of the taxed costs of the suit. - 6. The Counterclaim is hereby dismissed with costs.

I so order.

10 Dated, signed and delivered electronically via ECCMIS this **28th** day of **August, 2024.**

Patience T. E. Rubagumya 15 **JUDGE** 28/08/2024 8:15am