[2024] UGHCCD 172

# 5 **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA AT KAMPALA**

## **[CIVIL DIVISION]**

### **CIVIL SUIT NO. 358 OF 2022**

### **AUGUSTINE NDIFE :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFF**

## 10 **VERSUS**

### **KAMPALA UNIVERSITY :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::DEFENDANT**

### **BEFORE: HON. JUSTICE ESTA NAMBAYO**

#### **JUDGEMENT**

The Plaintiff, Augustine Ndife, filed this suit against Kampala University, (hereinafter 15 referred to as the Defendant), seeking for declarations and orders of this court that the Defendant breached its contract, it was fraudulent and professionally negligent and that Court should investigate and/or inquire into the Defendant's admission processes of international students, the Defendant's license to operate as a University should be revoked and that the Defendant pays special damages, general damages, 20 exemplary/punitive damages, interest and costs of this suit.

## **Background to the suit**

The brief background to this suit is that the Plaintiff was an International Student at the Defendant University, offering a Bachelor's degree in Political Science; vide admission number, 18/KUA/BPS/549N.

25 Upon completion of his three-year course, the Plaintiff was not cleared for graduation. When he made a follow up, he was informed that he did not fully comply with the Defendant's pre-entry requirements for International Students and that he had a pending retake in his 1st year.

It is the Plaintiff's claim that for the three years that he spent at the Defendant University, 30 he was never guided on any preliminary requirements for International Students and that the alleged pending retake in his 1st year was brought to his attention three weeks to the graduation. That regardless of the short notice, the plaintiff sat and passed the re-take but he was still not cleared for graduation, hence this suit.

# **Representation**

35 Learned Counsel Martin Musigire appeared for the Plaintiff while Learned Counsel Kawalya Steven together with Mohammad Ssebandeke were for the Defendant.

**Issues for trial are: -**

- **1. Whether the Plaintiff has a cause of action against the Defendant?** - **2. Whether there was breach of contract by the Defendant?** - 40 **3. Whether the Defendant acted negligently and fraudulently when it failed to advise the Plaintiff to undertake a remedial course offered by the National Council of Higher Education** - **4. Whether there are any remedies available to the parties?**

# **Resolution of Issues**

45 **Issue 1: Whether the Plaintiff has a cause of action against the Defendant. Order 7 rule 11 of the Civil Procedure Rules provides for rejection of a plaint and**

**states that: -**

The plaint shall be rejected in the following cases-

(a) where it does not disclose a cause of action;

50 In the case of **Kapeka Coffee Works Ltd –v- NPART, CANo. 3/2000**, Court held that; 'in determining whether a plaint discloses a cause of action, the court must look at the plaint and its annexures, if any, and nowhere else.'

In **Auto Garage and Others –v- Motokov (No 3), [1971] 1 EA 514 (CAD)**, Court held, among others, that what is important in considering whether a cause of action is revealed

55 by the pleadings is the question as to what right has been violated.

In **Tororo Cement Co. Ltd –v- Frokina International Ltd, Civil Appeal No. 2/2001**, it was held that in order to prove that there is a cause of action, the plaint must show that;

- (a) the plaintiff enjoyed a right; - (b) that the right has been violated; and - 60 (c) that the defendant is liable.

If the three elements are present, a cause of action is disclosed.

In this case, it is not in dispute that the Plaintiff was a student at the Defendant University. He pursued a three -year course at the Defendant University and at the end of the three years, he was not cleared to graduate. The Plaintiff's right to the graduation was violated 65 and it is his claim that the Defendant is responsible for his failure to graduate. I find that the plaint discloses a cause of action against the Defendant.

**Issue 2: Whether there was breach of contract by the Defendant?**

## **Plaintiff's submissions.**

Counsel for the Plaintiff submitted that there was breach of contract by the Defendant 70 University when it unjustifiably failed and/or refused to clear the Plaintiff for graduation. That the Plaintiff fulfilled all requirements for graduation but the Defendant declined to clear him for no apparent reason.

Counsel explained that "breach of contract" means actual failure by a party to a contract to perform his obligations under the contract. That where one party to a contract fails 75 to carry out a term of the contract when he/she neglects, refuses or fails to perform any part of its bargain, written or oral, without a legitimate excuse also amounts to breach of contract. He relied on the cases of **Ronald Kasibante -v- Shell Uganda Limited [2008] HCB 162, Sebuliba -v- Basalidde Joseph HCCS No. 77 of 2014 & Semuju -v-Kampala University & Anor HCCS No. 66 of 2011.**

- 80 That in this case, the Plaintiff proved that the Defendant breached the contract when it unjustifiably failed and/or refused to clear him for graduation and award him his Bachelor's Degree in Political Science and yet on his part, the Plaintiff complied with all the prerequisites as directed by the Defendant. That he was registered by the Defendant's Academic Registrar under Reg. No. 18/KUA/BPS/549N, as stated under Paragraphs 1, 4, - 85 12, 13, 74, 15, 17, 21 and 22 of his witness statement, but unfortunately, the Defendant failed in its duty to advise and guide the plaintiff, who was a foreign student, on undertaking the compulsory remedial course as required by the NCHE of foreign students before admission to a local University.

Counsel further submitted that the Defendant also irregularly removed the Plaintiff's name from the graduation list alleging that he had a pending re-take in his 1st 90 year which he had not cleared. That the allegation of a re-take was not brought to the Plaintiff's attention until three weeks to the graduation but all the same the Plaintiff sat the re-take and passed but he was not cleared for graduation.

Counsel relied on Exh. P1 as the contract between the parties. The Plaintiff subsequently 95 registered with the Defendant and paid all the requisite tuition for the Course. That after admission to the Computer Science and Information Technology Course that he had applied for, the Plaintiff, with the consent of the Defendant changed his course from Computer Science and Information Technology to Political Science and pursued the same to completion, as reflected in paragraphs 6 (c) & (d) of the Defendant's WSD.

100 Counsel relied on Exh. D8 to confirm that the Defendant continued to receive the Plaintiff's payments of tuition from 2017 to 2019 and this confirms the Plaintiff's progression of study from year one to year three.

Counsel averred that it is a material contradiction by the Defendant under Paragraph 6 (g) of its WSD to allege that the Plaintiff did not comply with its admission requirements.

105 That it defeats logic to argue that the Defendant issued an admission letter to the Plaintiff, allowed him to study uninterrupted for three years, while collecting tuition from him and assessing his performance and clearing him at every level and thereafter allege that he never complied with the admission requirements.

Counsel emphasized that the Plaintiff honoured his part of the contract but the 110 Defendant frustrated the Plaintiff's graduation on baseless allegations.

Counsel explained that when the National Council for Higher Education (NCHE) came to know of the Defendant's conduct, it furnished a report, Exh. P 3 followed by a letter, Exh. P.8 addressed to the Vice Chancellor of the Defendant, faulting the Defendant for neglecting their duty to advise the plaintiff on the NCHE remedial course and advised

115 the Defendant to consider paying the Plaintiff's tuition to re-do the course but the Defendant took no action. He referred this court to the evidence of Sulayman Ademola Abdulwahid (PW2) and prayed that this issue be answered in the affirmative, so that the Defendant is ordered to compensate the Plaintiff for breach of the contract.

# **Defendant's submissions**

In reply, counsel for the Defendant submitted that the Defendant did not breach the contract between the parties. He explained that breach of contract occurs when one or 125 both parties fail to fulfil the obligations imposed by the terms of the contract and/or when a party to a contract without lawful excuse fails to perform his/her contractual obligations or departs from the terms of a contract. He cited the cases of **Lydia Mugambe -v- Kayita James and Hallmark Construction & Painting Company Limited, HCCS 339 / 2020 [2022] & Ronald Kasibante –v- Shell (U) Limited, HCCS 542 / 2006.**

130 Counsel submitted that the Defendant's Witnesses informed court that all new students including the Plaintiff were taken through orientation programmes to inform them about what is expected of them during their stay at the University.

That no evidence was adduced by the Plaintiff to contradict this testimony, neither did the Plaintiff adduce evidence to show that he approached any University official and was

135 denied help regarding his academics or that the Defendant concealed a retake from the Plaintiff until graduation. That the Plaintiff was well aware of his obligations as a student and was given copies of school rules, policies and regulations along with his admission letter which he failed to follow.

Counsel submitted that Exh. P1 at p.4 under Clause 9.0 states that; -

140 "Any kind of fraud i.e forgery or any other related crime once discovered at any one time and at any level that is, during the time of admission, registration, course of study or even after graduation, will lead to discontinuation from the University, or recall and cancellation of the Degree."

He relied on the case of **Active Automobile Spares Ltd –v- Crane Bank Ltd and Rajesh** 145 **Pakesh, SCCA 21/2001** where court stated that; -

"It is trite law that courts will not condone or enforce an illegality. This is a wellestablished principle of law…. If a Plaintiff cannot maintain his cause of action without showing as such part of cause of action, that he has been guilty of an illegality, then the court will not assist him."

150 Counsel further submitted that the law on illegalities is well settled in the case of **Makula International Ltd -v- His Eminence Cardinal Nsubuga & Anor [1982] HCB 11** where it was held, inter alia, that; -

"A court of law cannot sanction what is illegal, an illegality once brought to the attention of court, overrides all questions of pleading, including any admission made thereon."

- 155 That the maxim that "he who seeks equality, should come to court with clean hands" comes into play in the circumstances of this case, and that the Plaintiff cannot claim breach of contract when he, by his own actions breached the contract between the parties by failing to meet his obligations as a student. Counsel prayed that this court be pleased to answer this issue in the negative. - 160 **Analysis**

# **Black's Law Dictionary, 10th Edition at page 389, defines a contract as;**

"An agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law."

Section 10 of the Contracts Act, 2010 provides that,

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

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

170 In the case of **William Muthee Muthami –v- Bank of Baroda (2014) eKLR court observed that: -**

"In the law of contract, the aggrieved party to an agreement must, in addition, prove that there was offer, acceptance and consideration. It is only when those three elements are available that an innocent party can bring a claim against the party in breach."

175 In this case, the University offered courses, the Plaintiff applied for one of the courses offered by the Defendant University and he was admitted upon acceptance of his papers. The Plaintiff was required to register with the Defendant University within three weeks from the date of the admission or else he would lose his place to another candidate.

He was also told that the admission was provisional pending verification of his 180 qualification as presented on the application form. The Plaintiff was notified in the admission letter that he was required to present in person, the original documentary evidence of the following documents;

- 1. The Original Uganda Certificate of Education or the Equivalent - 2. The Original Advanced Certificate of Education or its Equivalent or certified 185 evidence to prove possession of it - 3. Where applicable, the relevant original Degree/Diploma/Certificate and transcript - 4. Five passport photographs showing his current likeness (head and shoulders) and he was also required to write his names and registration number at the back of each photo. - 190 Proven forgery cases in personality impersonation, falsification of documents or the giving of false or incomplete information when discovered would lead to cancellation of the admission and subsequent prosecution. These were general requirements in the admission letter for all students.

It is the Plaintiff's evidence that he was cleared and given a registration number, vide; 195 18/KUA/BPS/549N and he then pursued his course for the three years as required.

The admission letter also provided information on payment of tuition, University rules and regulations, among others and that the plaintiff was required to endorse as indication that he would abide by the rules. I believe that the Plaintiff complied with all the requirements and this is why he was enrolled for the course and continued with his

200 studies up to the final year. In view of the above therefore, I find that there was a contractual relationship between the Defendant University and the Plaintiff.

What this court has to establish now is whether there was breach of contract by the Defendant.

In **Black's Law Dictionary, 10th** 205 **Edition,** breach of contract is defined as a violation of a contractual obligation by failing to perform one's own promise, by repudiating it, or by interfering with another party's performance.

In the case of **Ronald Kasibante –v- Shell (u) Ltd (supra),** court noted that;

- 210 "breach of a contract is the breaking of the obligation which a contract imposes, which confers a right of action for damages on the injured party. It entitles him to treat the contract as discharged if the other party renounces the contract or makes its performance impossible or substantially fails to perform his promise. The victim is left with suing for damages, treating the contract as discharged or seeking a discretionary 215 remedy." - In this case, it is not in dispute that after being admitted for the course, the Plaintiff progressed from the 1st year to the 3rd year, and was only restrained from graduation.

The Assistant Academic Registrar of the Defendant, Mr. Sekatawa Julius, informed court that the Plaintiff did not comply with the Defendant's admission requirements in that he

- 220 failed to present a certificate of equation of his academic documents. That the Plaintiff's offer of admission was provisional as at the time of registration, that the Plaintiff was required to present to the Academic Registrar's office evidence of equation of his West African Senior School Certificate to the Uganda Advanced Certificate of Education. - Under paragraph 8 of his witness statement, Mr. Sekatawa states that the Plaintiff 225 deliberately refused to present equating documents for his West African Senior School Certificate despite several reminders and requests from the Defendant's office.

Exhibit D.6 is the admissions policy and procedure for the Defendant University. On page 4, under paragraph 4 of the policy, it is provided that;

"students whose qualification are obtained outside Uganda should ensure that they 230 present a letter of equivalence from UNEB and or NCHE depending on the level."

This would mean that the Plaintiff was required to present the certificate of equation from either UNEB or the NCHE.

Mr. Sekatawa says that several reminders were given to the Plaintiff to present this clearance but he did not comply. No evidence was presented to court to show that the

235 Plaintiff was given several reminders requiring him to present a certificate of equation of his documents.

Under paragraph 5 of his witness statement, the Plaintiff says that he complied with all requirements after his admission and that he was given a registration number and this is why he was able to progress with his course from the 1st year up to the end.

240 I have looked at the Plaintiff's admission letter which Exh. P.1. It states on page 1 under paragraph 3 as follows: -

The offer is provisional pending verification of the qualifications, as presented on your application form, by this office. At the time of registration, you will be required to present, in person, the original documentary evidence of these qualifications. I wish to emphasis 245 the following have to be present: -

- 1. The Original Uganda Certificate of Education or the Equivalent. - 2. The Original Uganda Advanced Certificate of Education, or its Equivalent, or Certified evidence to prove possession of it - 3. Where applicable the relevant original Degree/ Diploma/ Certificate and transcript - 250 4. Five Passport photographs showing your current likeness (head and shoulders) write your names and registration number at the back of each photo.

Proven forgery cases in personality impersonation, falsification of Document or the giving of false or incomplete information when discovered shall lead to Cancellation of the admission and subsequent prosecution.

255 The admission letter does not refer to the University Admissions Policy & Procedure. There is no evidence to show that the Admissions Policy and Procedure was part of the Plaintiff's admission documents.

The admission letter is silent on the requirement of the equation certificate.

- I find that there is no evidence on record to show that the plaintiff was informed at the 260 time of his admission or at any other time during the progression of his course, that he was required to present a certificate of equation to his West Africa Senior School Certificate. When the Plaintiff was not cleared for graduation, he complained to the NCHE. NCHE then made a report which was tendered in court as Exh. P.3 on page 17 of the Plaintiff's trial bundle. It came up with the following key findings: - - 265 a) Mr. Augustine Ndife was admitted to a Degree programme of Kampala University with a West African Senior School Certificate (Equivalent to Uganda Certificate of Education–UCE). Mr. Augustine Ndife did not qualify for admission to a Bachelor's degree programme. Regulation 9(d) of Statutory Instrument No. 34 of 2008 requires students who have done their secondary education outside Uganda to 270 undertake a Bridging/access course by the National Council for Higher Education.

- b) The University could not provide a clear programme document which Mr. Augustine Ndife followed. In absence of such a clear programme document, the investigation Team could not ascertain whether Mr. Augustine Ndife was required to complete the three course units in which he had retakes before he qualifies 275 for graduation. - c) Mr. Augustine Ndife claims that he sat for the retakes, however, the University claims that the student connived with errant staff to have his papers remarked without authorization from the University Officials. There is no evidence that the University system ever apprehended such staff. - 280 d) Mr. Augustine Ndife who the University claims to have had retakes in the first semester was allowed to progress to the third year without any reprimand. - e) There is no evidence that the University ever made any internal efforts to deal and manage Mr. Augustine Ndife's complaint - Under S.5 (k) of the Universities and Other Tertiary Institutions Act, 2001(as amended) 285 the NCHE is mandated to determine the equivalence of all types of academic and professional qualifications of degrees, diplomas and certificates obtained elsewhere with those awarded by Uganda Institutions of Higher Education for recognition in Uganda. For this reason, I'm confident that the findings in the report by the NCHE which was tendered in court by the plaintiff as Exh. P.3, was within its legal mandate. 290 I also find no basis to doubt the findings. My attention has been particularly drawn to paragraph (a) of the report, which states that;

"Mr. Augustine Ndife was admitted to a Degree programme of Kampala University with a West African Senior School Certificate (Equivalent to Uganda Certificate of Education–UCE). Mr. Augustine Ndife did not qualify for admission to a Bachelor's 295 degree programme." **(underlining is mine for emphasis).**

Much as the Plaintiff claims under paragraph 9 of his plaint and in his evidence that the Defendant did not guide him on the important steps to be taken before his admission to the Defendant University; namely; taking a bridging/remedial course accredited by the NCHE, the finding of the NCHE is that the Plaintiff's West African 300 Senior School Certificate was equivalent to UCE and as such the Plaintiff did not qualify for University admission at the Defendant University.

It would appear that at the time of the Plaintiff's admission to the Defendant University, both the Plaintiff and the Defendant officials responsible for admission were under a mistaken belief that the Plaintiff qualified for admission for a Bachelor's 305 degree, which was not the case as pointed out by the NCHE.

NCHE did not say that the Plaintiff needed a bridging course to qualify for admission. It stated clearly that the equivalent of the plaintiff's papers were UCE and that he did not qualify for admission to the University for a Bachelor's Degree.

The mistaken belief by the Plaintiff and the Defendant that the Plaintiff qualified for 310 admission and the actual admission of the Plaintiff, in my view, was a common mistake.

> In contracts law, common mistake is where both parties to a contract are "mistaken" regarding a fundamental matter of fact. If both parties are under the same misapprehension, it may render the contract void at law.

# 315 In **Associated Japanese Bank –v- Credit Du Nord SA [1989] 1 WLR 25**5, court noted that;

"for common mistake to render a contract void, the subject matter must be 'essentially and radically different' from what the parties believed to exist. The mistake must go to the root of the contract and cannot simply be made as an excuse to 320 avoid unwanted obligations."

S. 17 (1) of the Contracts Act, 2010 provides that where both parties to an agreement are under a mistake as to a matter of fact which is essential to the agreement, consent is obtained by mistake of fact and the agreement is void.

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**Regulation 9 of the Universities and Other Tertiary Institutions (Quality** 325 **Assurance) Regulations, 2008, provides for Students' entry requirements to institutions and states as follows;**

(1) Minimum entry requirements for Bachelor's degree—

(a) Direct entry from schools– Uganda Certificate of Education (UCE) with at least 5 passes and at least two principal passes at Uganda Advanced Certificate of Education 330 (UACE) obtained at the same sitting or its equivalent;

(d) Bridging/access/remedial courses for students who have done their secondary education outside Uganda, which shall be accredited by the National Council.

In this case, the Plaintiff was admitted for a bachelor's degree at the Defendant University based on qualification that were not adequate for him to undertake a bachelor's degree

335 in Uganda. Much as the Defendant claims that the Plaintiff should have done a bridging course, this is not what was required. NCHE's finding was that Mr. Augustine Ndife did not qualify for admission to a Bachelor's degree programme.

Following the above, I would find that the admission contract between the Plaintiff and the Defendant was based on the Plaintiff's documents that were inadequate for the 340 admission, thereby making the contract void under S. 17 of the contracts Act, 2010.

**Issue No.3: Whether the Defendant acted negligently and fraudulently when it failed to advise the Plaintiff to undertake a remedial course offered by the National Council of Higher Education.**

I have already pointed out that the finding of the NCHE was that the Plaintiff had no 345 papers for admission to the Defendant University.

#### **(a) Fraud**

In **R. G. Patel –v- Laiji Makanji (1957) E. A 314** the Court of Appeal noted that; "Allegations of fraud must be strictly proved; although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more 350 than a mere balance of probabilities is required"

The Plaintiff in this case did not adduce evidence/proof of the particulars of fraud that he pleaded. Therefore, I find that the Plaintiff has failed to establish a case of fraud against the Defendant.

## **(b)Negligence**

# **Black's Law Dictionary, 10th** 355 **Edition at page 1196 defines negligence as;**

"the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or wilfully disregardful of others' rights"

360 For the Defendant's officers to admit the Plaintiff when he had no qualifications for admission to the Bachelor's degree at the Defendant University, in my view, amounted to negligence on the side of the Defendant.

#### **Remedies**.

Under S. 25 (2) of the contracts Act, a contract becomes void, where the contract is to

365 do an act which, after the contract is made, becomes impossible or unlawful or which by reason of an event which the promisor could not prevent, becomes impossible or unlawful.

In this case, after admission of the Plaintiff and the Plaintiff progressing through the 3 years and completing the course, it became impossible to award him a degree certificate

370 based on his papers.

S. 54 of the Contracts Act, 2010 provides for obligations of a person who receives advantage under a void agreement or a contract that becomes void and states that;

(1) Where an agreement is found to be void or when a contract becomes void, a person who received any advantage under that agreement or contract is bound to 375 restore it or to pay compensation for it, to the person from whom he or she received the advantage.

> (2)Where a party to a contract incurs expenses for the purposes of performance of the contract, which becomes void after performance under [section 25\(](https://ulii.org/akn/ug/act/2010/7/eng@2010-05-28#part_III__sec_25)2), the court may if it considers it just to do so in all the circumstances

380 (a) allow the other party to retain the whole or any part of any advantage received by him or her;

> (b) discharge the other party, wholly or in part, from making compensation for the expenses incurred; or

(c) make an order that the party recovers the whole or any part of any payments, 385 discharge or other advantages not greater in value than the expenses incurred.

If the Defendant had exercised diligence in its admission of the plaintiff and at every stage of each academic year, the Plaintiff would not have been misled into attending a course for the whole three years without the requisite qualifications. Therefore, it is only proper that the Defendant pays the Plaintiff all incurred that he incurred under 390 S. 54(2) (c) of the Contracts Act.

### **Special damages**

It is a legal principle that **"special damages must be specifically pleaded and proved."** See **Gapco (U) Ltd –v- A. S. Transporters (U) Ltd CACA No. 18/2004 and Haji Asuman Mutekanga –v- Equator Growers (U) Ltd, SCCA No.7/1995.**

395 The Plaintiff has made a claim of UGX. 70,893,440/- as special damages. This is what was pleaded.

Counsel submitted that for the three years, the Plaintiff incurred expenses ranging from tuition fees, functional fees, registration fees, transport expenses, purchasing reading materials, medical expenses, accommodation expenses, air tickets to and 400 from Uganda, visa fees, student pass expenses as pleaded and proved with payment receipts on record.

The payment receipts referred to are attached as Exh. P.2, Exh. P.13 and Exh. P. 17.

#### **Exh. P.2**

This runs from page 5 to page 16 of the trial bundle. Pages 7 to 16 are General 405 Receipts issued by Kampala University for payment of UGX. 1,100,000/-, 850,000/- 75,000/-, 1,244,000/-, 1,200,000/-, 1,000,000/-, 250,000/-, 1,366,000/- and 1,366,000/ respectively. The last receipt is not clear on the amount paid.

Altogether, amount paid as per the General Receipts under exhibit 2 is 8,451,000/-.

### **Exhibit P. 13** starts on page 43.

- 410 On page 49, there is proof of payment of 599,500/-. It is not clear whether this transaction was related to the Defendant's services to the plaintiff. All that is reflected is that the Plaintiff paid this money to NCBA. Reason for payment is not disclosed. On page 50 there is proof of payment of UGX. 800,000/- by the Plaintiff for rent. Other rental payments are reflected on pages 55, 56 and 57 showing payments of - 415 UGX. 800,000/- each.

On page 58 there is payment of UGX. 1,600,000/- to Centenary Bank. Reason for payment is not clear.

Total rental payment under exhibit P. 13 is 3,200,000/-

#### **Exhibit P. 17**

420 These are rental payments to Wilken Services Ltd.

On page 67, there is payment of 150,000/-. Page 68 shows payment of UGX. 1,300,000/-, page 69, there is payment of 650,000/- and another 650,000/- on page 70, Page 71, UGX. 650,000/- was paid, page 72, UGX. 700,000/- was paid, UGX 700, 000/- was again paid as reflected on page 73, page 74 has payment of 700,000/- 425 UGX. 700,000/- was paid as per page 75, another UGX. 700,000/- as per page 76 was paid and UGX. 1,400,000/- on page 77.

Altogether total rent payments under exhibit P. 17 is 6,900,000/-

This is the only proof of payments that have been presented to court.

In the circumstances, I would award the Plaintiff special damages of **8,451,000+**

430 **3,200,000/- +6,900,000/- which add up to UGX. 18, 551, 000/-.**

# **General damages**

Courts have noted that "a plaintiff who suffers damage due to the wrongful act of the Defendant must be put in the position he or she would have been if she or he had not suffered the wrong", (**Charles Acire –v- Myaana Engola, HCCS 143/1993.**

435 In this case, the Plaintiff lost all the three years that he spent pursuing the Bachelor's degree in Political Science at the Defendant University. That time can never be recovered.

General damages are not intended to punish the party that loses a case or confer a windfall on to the winning party. It is only intended to put the winning party in the 440 place that he/she would have been in had it not been for the actions of the defendant. The Plaintiff prayed for UGX. 500,000,000/-. I find this figure quite exaggerated and without justification. In my view, a sum of UGX. 50,000,000/- [fifty million Uganda shillings only], is reasonable as general damages for the three years that the Plaintiff wasted at the Defendant University and for the period he has spent following up this 445 matter.

**Exemplary damages**

Exemplary Damages are intended to punish the defendant for the wrong done to the plaintiff.

In the case of **Obongo -v- Municipal Council of Kisumu [1971] EA 91** the court 450 held that;

> "it is well established that exemplary damages are completely outside the field of compensation and although the benefit goes to the person who was wronged, their object is entirely punitive".

In this case, the Defendant should have made effort to settle this matter immediately 455 after receiving the NCHE report. I find no justification for the Defendant's refusal to settle the Plaintiff to date. This has made the Plaintiff run up and down which has also prolonged his stay and expenditures in the country. I find UGX. 10,000,000/ reasonable as exemplary damages.

# **Costs**

460 Under S. 27 (2) of the Civil Procedure Act, it is provided that costs of any action, cause or matter shall follow the event unless Court for good cause orders otherwise. I find no reason to deny the Plaintiff costs in this case.

> Therefore, in the final result, judgement is entered for the Plaintiff in the following terms: -

465 **1. The Defendant be and is hereby ordered to pay the Plaintiff special damages amounting to UGX. 18, 551, 000/- [Eighteen million five hundred fifty-one thousand shillings only]**

- **2. The Defendant be and is hereby ordered to pay to the Plaintiff General damages of UGX 50,000,000/- [Fifty million shillings only].** - 470 **3. The Defendant be and is hereby ordered to pay to the Plaintiff exemplary/punitive damages of UGX 10,000,000/- [ten million Uganda shillings only].** - **4. The Defendant shall pay interest on the special damages at the rate of 8% per annum from the date of judgement until payment in full.** - 475 **5. The Defendant pays costs of this suit.**

I so order

**Dated signed and delivered at Kampala by mail and uploaded on ECCMIS on this 14th day of October, 2024.**

480 **Esta Nambayo JUDGE 14th/10/2024.**

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