[2025] UGHCLD 62

## **THE REPUBLIC OF UGANDA**

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

## **(LAND DIVISION)**

#### **CIVIL SUIT NO.824 OF 2020**

## **1. RONALD MUZITO**

## **2. MARY NABATANZI MUZITO :::::::::::::::::::::::::::::::: PLAINTIFFS**

#### **VERSUS**

# **1. GODREY KAHUMA 2. NORAH KAHUMA ::::::::::::::::::::::::::::::::::::::::::: DEFENDANTS BEFORE: HON. LADY JUSTICE NALUZZE AISHA BATALA JUDGMENT**

## *Introduction;*

- 1. Ronald Muzito and Mary Nabatanzi Muzito hereinafter referred to as the plaintiffs instituted this suit against Godfery Kahuma and Norah Kahuma hereinafter referred to as the defendants for the following orders: - i) A declaration that the defendants breached the contract between the parties. - ii) An order for specific performance of the land sale and purchase agreement by granting the plaintiffs ownership and vacant

possession of the lower part of the suit land measuring approximately 102 feet of the north side, 80 feet on the Eastern side, 105 feet on the southern side and 70 feet on the western side with an access road or right of way of necessity.

- iii)In the alternative to (b) above, special damages of UGX 136,956,000 at an interest rate of 25% per annum from 2011 when the construction commenced until payment in full - iv) General damages - v) Punitive/exemplary damages - vi)Interest on (d) and (e) above from the date of judgment until payment in full - vii) Costs of the suit - viii) Any other remedy that this honorable court deems fit.

## *Background;*

2. That sometime in 2010, the 1st defendant approached the 1st plaintiff and informed him that the defendants owned land comprised in Block 232 Plot 769 Kireka, Wakiso district (suit land) and wanted to construct there four rental units. But that the

defendants had no finances to do so despite various attempts to raise them.

- 3. The plaintiffs agreed to finance the construction of the four units and on the 4th may 2010, the 1st plaintiff and the 1st defendant entered into a written memorandum of understanding on the following terms; - i) The plaintiffs finance the construction of four rental units on the suit land. - ii) Upon completion of the construction and as consideration for financing the project, the 1st defendant grants the plaintiffs the lower part of the suit land measuring approximately 102 feet X 80 feet X 105 feet X 70 feet. - iii) That 1st defendant be responsible for supervising the construction works such as appointing contractors and purchasing construction materials. - 4. The plaintiffs started financing the construction project and by a written land sale agreement made on the 5th may 2011, the plaintiffs and the 1st defendant agreed that;

- i) Phase one of constructing two rental units at the upper block was completed at a cost of Ugx 25,000,000 provided by the plaintiffs. - ii) Phase two of constructing the two rental units at the lower block would cost Ugx 25,000,000 provided by the plaintiffs. - iii) If the finances so far provided by the plaintiffs were inadequate, the plaintiffs would continue to finance the construction until completion. - iv) Upon completion of the construction project and as consideration for the financing, the defendants would grant the plaintiffs ownership and uninterrupted vacant possession of the lower part of the suit land. - v) Once the defendants processed their certificate of title over the suit land, they would give the plaintiffs fully signed transfer and mutation forms and other documents to enable them process a certificate of title over the lower part of the land. - 5. Meanwhile the 1st defendant had informed the plaintiffs that the 2nd defendant was aware of and in agreement with the above arrangement.

- 6. The plaintiffs fully performed their obligation under the land sale and purchase agreement and the defendants then took over management and ownership of the two lower rental units and two upper rental units respectively and the defendants continue earning rental income from the said premises. - 7. Having fully performed their obligation, the plaintiffs requested the defendant to grant them ownership and vacant possession of the lower part of the suit land and documents to enable them process a certificate of title but the 2nd defendant refused and failed to honor the undertaking. - 8. The 2nd defendant in her written statement of defence raised a counter claim wherein she prayed for the following orders; - i) That the 2nd defendant/counter claimant is the rightful owner of the suit land and the plaintiffs/counter defendants are trespassers thereon. - ii) An order for eviction against the plaintiff/counter defendants compelling them to remove all the property on the suit land, demolish the perimeter wall, remove all sewerage pipes connected to the septic tank thereon. - iii) Costs of the counter claim be provided for.

## *Evidence;*

- 9. At the hearing, the Plaintiffs adduced three witnesses that is Ronald Muzito (PW1), Musisi Daniel Kiggundu (PW2) and Arnold Francis Kezimbira Nabbuto Margaret (PW3) who all led evidence through witness statements that were adopted with their annextures. - 10. The Defendants adduced two witnesses that is Godfrey Kahuma (DW1) and Norah Kobusingye (DW1) who led evidence through witness statements that were admitted in court.

## *Locus visit;*

- 11. On the 4th of March 2025, this court conducted a locus visit and made the following observations; - i) The rental units that the 1st plaintiff was supposed to construct were complete. - ii) It's the defendants who are collecting rent from the said units - iii) The lower part that was supposed to be given to the 1st plaintiff has a banana plantation. - iv) The 2nd defendant resides on the suit land. - v) The plaintiffs do not have anything on the suit land.

- vi) The lower units appear to be recently built - vii) It's the 2nd defendant in possession of the suit land.

## **Representation;**

12. At the hearing the plaintiffs were represented by M/S A F Mpanga Advocates whereas the 1st defendant was represented by M/S Candia advocates and legal consultants and the 2nd defendant was represented by M/S Lawrence Tumwesigye and Co. Advocates. All parties proceeded by way of written submissions which this court is to rely on in the determination of this suit.

## *Issues for determination;*

- *i) Whether there was a valid contract of sale of the suit property between the plaintiffs and the defendants.* - *ii) Whether the plaintiffs are entitled to ownership or vacant possession of the suit property.* - *iii) What remedies are available to the parties.*

## *Resolution and determination of the issues;*

Issue 1; whether there was a valid contract of sale of the suit property between the plaintiffs and the defendants.

## **Counsel for the plaintiff's submissions;**

- 13. Section 10(1) of the contracts act defines a contract as an agreement made with the free consent of the parties with capacity to contract for a lawful consideration and with a lawful object, with intention to be legally bound. - 14. In **chemicals East Africa ltd vs KAC Chemicals paints (u) ltd HCCS No. 470 of 2016**, the court in commenting on section 10(5) of the contracts act observed that; **"…. For a contract to come into existence, there must be an offer made by one party which is in turn accepted by another party, an offer is a promise to provide something specific if the other party agrees to do something specific in return. The acceptance must be stated either by words spoken, or written or by conduct. Either words or conduct constitute acceptance of an offer if it occurs in accordance with and in response to the specific terms of the offer...**" - 15. Counsel referred to PEX1 and PEX2 that there was an offer and acceptance between the 1st defendant and the plaintiffs by which the plaintiffs would assist the defendants with the constructions of the rental houses and in consideration, the plaintiffs would be given the lower part of the suit land.

- 16. As for the 2nd defendant, Section 8 of the contracts act provides for acceptance of an offer by performing conditions of an offer or receiving considerations. The said section reads as follows, "the performance of the conditions of an offer or the acceptance of any consideration for a reciprocal promise which may be offered with an offer is an acceptance of the offer" - 17. Counsel for the plaintiffs submitted that although the 2nd defendant was not a party to the agreement, she accepted the terms of the offer by participating in the performance of the contract and by receiving the consideration from the contract as such there was a valid and binding agreement between the 2nd defendant and the plaintiffs. - 18. Further, counsel submitted that any attempts by the 2nd defendant to deny existence of the contract with the plaintiffs are barred by the doctrine of estoppels as evidenced under **Section 114 of the evidence act** which states that *"when one person has by his or her declaration , act or omission intentionally caused or permitted another person to believe a thing to be*

*true and to act upon that belief, neither he or she nor his representatives shall be allowed in any suit or proceeding between himself or herself and that person or his representative to deny the truth of that thing"*

19. In this case the 2nd defendant knew that the plaintiffs were financing the construction of the rentals, she also participated in the arrangement by going with the 1st plaintiff to choose the construction materials which were paid for by the 1st plaintiff and also, she went ahead to collect rent from the constructed houses. She cannot as a result of the doctrine of estoppel turn around and deny existence of the very arrangement she participated and took a benefit out that would be reprobating and approbating at the same time.

## Counsel for the 1st defendant submissions;

20. Counsel relied on the provisions of Section 10 of the contracts act and the decision in **Hon. Justice Anup Singh Choudry vs Mohinder Singh Channa and N. S Channa Civil Suit No. 335 of 2014** where it was stated that generally the meaning of a contract is determined by looking at the intentions of the parties at the time

of the contract's creation. when the intention of the parties is unclear, court looks at any custom and usage in particular that might help determine the intention"

- 21. Counsel further submitted that the defendants had a desire to construct rental units on their land comprised in Block 232 Plot 769 Kireka, Wakiso district but did not have sufficient funds and they contacted the plaintiffs who agreed that they would finance the construction of the rental units in exchange for the lower part of the land and the parties agreed as such. - 22. That the plaintiffs began the construction of the rental units which they completed, the 04 units were handed over to the defendants who are now managing and receiving rent therefrom.

## Counsel for the 2nd defendant submissions;

23. Counsel submitted that the suit land is not only family land but jointly owned land between the 1st and 2nd defendant as per the land sale agreement. Drawing reference to the provisions of the Land Act as stated in Section 40 where the law provides for restrictions on the transfer of family land.

- 24. It is the submission of counsel for the 2nd defendant that in dealing with family land, spousal consent is required and the said consent should be in writing as provided for by the law and that the 1st defendant seeks to sell or dispose family land which is jointly owned by both of them without the consent of the 2nd defendant, his spouse. - 25. Further, counsel for the 2nd defendant submitted that the doctrine of estoppel has no space whatsoever in the transaction at hand and the 2nd did not know that the plaintiffs were financing the construction of the rental units.

## *Analysis by court;*

- 26. I take note of the submissions and authorities relied upon by all the parties herein. - 27. Counsel for the plaintiffs in the instant case relies on the doctrine of estoppel to infer that the 2nd defendant is barred by her conduct and actions from denying the plaintiffs to occupy the lower part of the suit land as agreed whereas counsel for the 2nd defendant avers that the suit land is not only family land but

jointly owned land and that the 1st defendant could not transact over the said land without the consent of the 2nd defendant.

- 28. In situations where the rights claimed are proprietary rights the estoppel becomes proprietary estoppel. The doctrine of proprietary estoppel is an equitable remedy, which operates to prevent the legal owner of property from asserting their strict legal rights in respect of that property when it would be inequitable to allow him to do so. - 29. In *Crabb vs Arun District Council [1976] 1 Ch.183,* Lord Denning explained the basis for the said doctrine as follows: "the basis of this proprietary estoppel, as indeed of promissory estoppel, is the interposition of equity and equity comes in true form, to mitigate the rigors of strict law. - 30. As it was clearly illustrated in **Ramsden vs Dyson (1866) L. R. 1 H. L**. 129, that; *"If a stranger begins to build on my land supposing it to be his own, and I, perceiving his mistake, abstain from setting him right, and leave him to persevere in his error, a Court of equity will not allow me afterwards to assert my title to the land on which he had expended money on the supposition that the land was his own. It considers*

*that, when I saw the mistake to which he had fallen, it was my duty to be active and to state my adverse title and that it would be dishonest in me to remain willfully passive on such an occasion, in order afterwards to profit by the mistake which I might have prevented"*

- *31.* For the doctrine of proprietary estoppel to arise, the party asserting it must have incurred expenditure or otherwise have prejudiced himself or herself and the party must have acted in a belief either that he or she already owned a sufficient interest in the property to justify the expenditure or that he or she would obtain such an interest. His or her belief must have been encouraged either actively or passively by the land owner or his predecessor in title*. (See; Ramsden vs Dyson (supra)* - *32.* In the instant case, it's the evidence of the 1st plaintiff in his witness statement that he started financing the construction of the rentals where he would be given the lower part of the suit land as consideration and the 1st defendant stated that the 2nd defendant was aware of this arrangement. The 2nd defendant in her cross examination by counsel for the plaintiffs where she was asked whether it was true that the 1st defendant informed her of the

entire arrangement with the 1st plaintiff, she replied and answered that yes, it's true

- *33.* The 1st plaintiff further testified that the 2nd defendant was a stay home woman and all the constructions happened in her presence. During cross examination of the 2nd defendant she clearly stated in court that at the time the construction was going on she was not working and she was residing in their matrimonial home which is next to the rental units that were being constructed. - *34.* Further it's the evidence of the plaintiffs and the 1st defendant that the 2nd defendant participated in the supervision of the construction of the rental units, this was as well stated by the 2nd defendant during her cross examination that she went with the 1st plaintiff to buy tiles which the 1st plaintiff paid for. Further one of the builders who came to testify in court as a plaintiff witness stated that the constructions were ongoing in the presence of the 2nd defendant who supervised him and at one point, she asked him to put a wooden access in the ceiling and as well make some changes on the doors which doors were bought by the 1st plaintiff, the said evidence went uncontested by the defendants.

- *35.* At locus, the 1st defendant stated that the 2nd defendant participated in the measuring of the boundaries of the lower part of the suit land well knowing that that they were going to give it to the plaintiffs as consideration for the construction of the rental units, the said evidence was never rebutted by the 2nd defendant. - *36.* Further this court established at locus that it was the defendants who were collecting rent from the said rentals and the plaintiffs were not benefiting from anything on the suit land. - *37.* The 2nd defendant raises claims that she contributed to the constriction of the units together with the 1st defendant, but the said allegations are not backed by any evidence nor any documentary proof indicating that it was the defendants who were purchasing the building materials for the rental units. All the documentary evidence adduced in court speak to the 1st plaintiff as the purchaser and the expenditures he incurred in the construction of the units. - *38.* If the 2nd defendant was not in agreement with all what was going on and the fact that she was well aware how the 1st defendant did not have the financial capacity to finance the

constructions, she would have interfered with whatever construction happening on the suit land.

- *39.* The only action the 2nd defendant pursued was filling a claim with FIIDA where she later withdrew the same after FIIDA visiting locus due to the anticipations that she won't be helped by FIIDA. The said action cannot be sufficient to state that she was not in agreement with whatever constructions happening on the suit land to the extent that the constructions still went on after her withdrawing the claim from FIIDA. - *40.* I find the 2nd defendant's claims of the suit land being family or jointly owned land and that the 1st defendant cannot transact over the same without her consent to be mere afterthoughts and kicks of a dying horse. - *41.* The 2nd defendant ought to have been active and vigilant when she saw the constructions going on by asserting her tittle in the suit land to the plaintiffs since she was well aware that it was the plaintiffs financing the constructions. In a situation where she decided to take part in the said constructions and going on to benefit from them through collecting rent from the constructed units, it becomes dishonest for her to assert her strict rights in the

suit property against the plaintiff after benefiting from what she claims to be a wrong.

- *42.* The 2nd defendant was in the position to stop and prevent all what the plaintiffs were doing on the suit land but she acted in a way that lead the plaintiffs to have the belief that they would acquire or enjoy proprietary rights in the suit land after performing what was required of them. - *43.* It's to the finding of this court that the 2nd defendant cannot turn around against the plaintiffs and stop them from occupying the lower part of the suit land after performing what was required of them and that the plaintiffs did all what they did with the belief that they were to acquire proprietary rights in the suit property. - *44.* Therefore, the 2nd defendant is barred by the doctrine of proprietary estoppel from claiming that there existed no transaction between the plaintiffs and the defendants. Hence, issue 1 is resolved in the affirmative.

Issue 2; whether the plaintiffs are entitled to ownership or vacant possession of the suit property.

- 45. The analysis of issue 1 by this court takes me to a finding that the plaintiffs are entitled to vacant possession of the lower part of the suit land measuring 102 X 80 X 105 X 70 feet. - 46. Upon reaching a finding that the 2nd defendant is barred by the doctrine of proprietary estoppel from asserting her strict legal rights in the suit property against the plaintiffs, the same finding entitles the plaintiffs to enjoy vacant possession of the lower part of the suit land measuring 102X80X105X70 feet. - 47. Therefore, issue 2 is resolved in the affirmative

### Issue 3; What remedies are available to the parties?

# Right to an access road;

- 48. The plaintiff in his plaint prayed for an access road or right of way as per clause G it in the agreement where it was stated that "An access shall be given to Mr and Mrs. Muzito in front of the compound near Eddie Yawe's fence which same access shall be used by the tenants occupying the lower block" - 49. Among the rights a land owner has over the land of another are easements to include a right of way.

- 50. Counsel for the plaintiff relied on the decision **in Chad Nyakairu vs Edirisa Nyakairu, Steve Williams Civil Suit No.072 of 2006** where justice Vincent Wagona held that for the plaintiff to access his land, he must go through the adjacent. - 51. In the instant case during the locus visit by court, this court observed that the lower part of the suit land does not have an access and the only way to reach the said land one has to go through the defendant's land. - 52. Therefore, an access should be granted to the plaintiffs as agreed in the agreement marked PEX2.

# Special damages;

- 53. Counsel for the plaintiff prayed for special damages as an alternative claim for having solely financed the construction of the four rental units and costing them a tune of Ugshs 136,956,000 as he specifically pleaded them in his plaint. - 54. However, this court upon resolving issues 1 and 2 in the affirmative, I do not find it necessary to make an order as to the award of special damages and the same order is not granted by this court

# General Damages;

- 55. General damages are at the discretion of the court and are intended to place the injured party in the same position in monetary terms as he would have been had the act complained of not taken place. *(See; Phillip vs. Ward [1956] I AU ER 874)* - 56. Counsel for the plaintiffs submitted that the defendant's refusal to allow the plaintiffs to use the lower part of the suit land after them financing the construction of the rental units, the plaintiffs have since then suffered immeasurable loss since their hard earned money could have been invested elsewhere and have been exposed to great inconvenience, psychological suffering and mental anguish because of the defendant's conduct who continue to collect rent from the units constructed by the plaintiffs. - 57. Be that as it may, the plaintiffs are awarded Ughs. 5,000,000 as general damages for the inconveniences caused.

### Punitive/exemplary damages.

*58.* The law on punitive damages or exemplary damages is an exception to the rule that damages generally are to compensate the injured person. These are awarded to punish, deter, express outrage of Court at the defendant's egregious, highhanded, malicious, vindictive, oppressive and/or malicious conduct. *(See;*

# *Ahmed El Termewy v Hassan Awdi & other HCCS No. 95 of 2012)*

- 59. Counsel for the plaintiffs submitted that the plaintiffs fulfilled their obligations and the defendants breached the same yet they took over management of the rental units at the detriment of the plaintiffs and that such action entitles the plaintiffs to an award of punitive damages. - 60. The rationale behind the award of punitive or exemplary damages is to deter or punish, in the instant case, the plaintiffs once lived together with the defendants and currently these are neighbors. For purposes of living in harmony as neighbors, this court is reluctant to award punitive damages against the defendants. Therefore, the plaintiff's prayer as to Punitive damages is hereby denied by this court.

Costs of the suit and interest.

61. Under Section 27 of the Civil Procedure Act, costs follow the event. The plaintiff being the successful party in this case are entitled to costs of the suit.

- 62. For the foregoing reasons, I proceed to pronounce judgement and decree for the plaintiffs against the defendants' jointly and severally upon the terms that; - i) A declaration that the plaintiffs are entitled to enjoy vacant possession of the lower part of the suit land measuring 102 X 80 X 105 X 70 feet with an access road. - ii) The counterclaim filed by the 2nd defendant is hereby dismissed by this court with no orders as to costs. - iii) An award of general damages of Ughs 5,000,000 at an interest rate of 10% from the date of this judgment until payment in full. - iv) Costs of the suit are awarded to the plaintiffs

# **I SO ORDER.**

# **NALUZZE AISHA BATALA**

# **Ag . JUDGE**

# **07th/05/2025**

#### **Delivered Electronically via ECCMIS on the 06 th day of May 2025**