[2025] UGHCLD 43

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

# **CIVIL SUIT NO. 423 OF 2016**

SENTONGO HENRY ::::::::::::::::::::::::::::::::::::

### VERSES

# KITTENGO JAMES BLASIO ::::::::::::::::::::::::::::::::::::

#### **JUDGMENT**

# BEFORE: HON. LADY JUSTICE NABAKOOZA FLAVIA. K

### **Background**

The plaintiff sued the defendant seeking a permanent injunction, general damages, vacant possession, specific performance, declaration that the plaintiff is the lawful/rightful owner of the suit land, mesne profits, and costs of the suit.

The Plaintiff alleges that on 15^th March, 2008, he entered into a sale agreement with the Defendant in respect of land comprised in Kyadondo Block 145 Plot 32 and 34 land at Busukuma. That he paid full purchase price of 7,000,000/- and the Defendant was requested to specifically perform the agreement, handover the transfer documents and deliver vacant possession which he failed to do. That the Defendant has threatened to dispose of or waste the land which has caused the Plaintiff great loss as a result of the defendant's unlawful actions.

The Defendant filed his written statement of defence wherein he denied the allegations in the plaint. He pleaded that he and the Plaintiff entered into an agreement of sale of a kibanja measuring 10 acres at Ugx 7,000,000/- (Seven Million) of which the Plaintiff made an initial deposit of one Million $(1,000,000)$ . That on 6/07/2008, the Plaintiff made another deposit of 200,000/and promised to make another deposit of 1,800,000/- which never materialized. That the Plaintiff failed to pay within the agreed period of time and the Defendant terminated the agreement and hence no specific performance. That the Defendant in the agreement never stated the plot or block number as he only intended to sell a Kibanja on his land but not titled land. That he has always wanted to refund the Plaintiff's part payment but he has always rejected the money. The Defendant has disposed of the suit land to third parties and that the Plaintiff inflicted pain on himself when he refused to receive a refund.

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In reply to the written statement of defence, the Plaintiff averred that he purchased land and not a kibanja of which he paid full purchase price. He denied breaching the contract and that the claim of a refund is baseless.

**Representation:** The Plaintiff was represented by Counsel Kajeke Kenneth from M/s Kajeke, Maguru & Co. Advocates while the Defendant was represented by Counsel Nsereko Joseph from M/s Kayongo Jackson & Co. Advocates.

During scheduling, the parties agreed on the following issues for resolution by this court; -

- Whether the parties entered into a sale agreement for land comprised in i. **Buteera?** - If so, who of the parties breached the said sale agreement? ii.

What remedies are available? iii.

At the hearing, the Plaintiff led 2 witnesses to wit; - Sentongo Henry as PW1 and Eseza Nanduwula as PW2. The Defendant also led 2 witnesses to wit; - Kittengo James Blasio as DW1, and Katanazi John as DW2.

Both parties file written submissions I have considered. The parties also ably presented evidence which was admitted in form of exhibits, and they include; -**PEX1** (a) and **PEX1(b)** which is a sale agreement dated $15/03/2008$ with its translation; *PEX* 2(a) which is a commitment to pay balance dated $8/07/2008$ ; PEX3 notice of application for letters of probate dated 7/07/1994; PEX4 a certificate of title for land comprised in Block 145 Plot 33 and 34 registered in the names of the Defendant; and *PEX5* a police report dated 11/12/2013 for the defence. At the closure of the hearing of the case, Counsel for the Defendant informed court that there was no land for which court would conduct a locus visit. That the parties are not pursuing a recovery of land but for breach of a sale agreement. On that basis, this court never conducted a locus visit.

### **Evidence of the Parties**

PW1 testified that he entered into a sale agreement with DW1 on 15/03/2008 in respect of land comprised in Kyadondo Block 145 Plot 32 and 34 at Butera and paid the full purchase price of 7,000,000/- (PEX1 (a) and PEX1(b). That DW1 refused to perform his part of the contract by handing PW1 transfer documents and vacant possession hence causing him to suffer great loss and inconvenience.

During cross-examination, PW1 stated that he bought 10 acres of land from DW1 who had over 50 acres by that time. That before purchase, DW1 told PW1 that

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the land belonged to him and shared the documents authorizing him to sale from the Administrator General. That at the time of purchase, the land was not in DW1's names but DW1 only gave PW1 a block and plot numbers. That the land was transferred and is now registered in the names of DW1 since 2010. He confirmed that he gave a deposit of $1,000,000/-$ ; and that after 2 weeks, he paid more 4,000,000 shilling and told DW1 to work on the title. That the area Chairperson (*Nakalyango*) then wrote on the agreement of $15/03/2008$ (PEX1(a) with the balance was $2,000,000/-$ .

That DW1 did not sign on this agreement but the chairperson stamped on it. PW1 also testified that in August 2008, he paid the balance of $2,000,000/-$ but did not have a document to prove that. However, that when he paid $1,800,000/-$ , the office (Kauma Management Service at Wandegeya) asked him for 100,000/which he did not pay hence not giving him any document.

In re-examination, he testified that when he paid the 200,000/- on $8/07/2008$ , he was given PEX2 by Kauma Management Service; and that is when both parties signed and Kauma Management Services stamped.

PW2 testified that she witnessed an agreement of sale between the parties on 15/03/2008 but DW1 has not granted PW1 vacant possession; and that she only witnessed the payment of $15/03/2008$ .

On the other hand, DW1 confirmed that on 15/03/2008, he entered into a land sale agreement with PW1 for land measuring 10 acres at a consideration of 7,000,000/-. That the purpose of the sale was to help DW1 process letters of administration on behalf of his family. That upon execution of the agreement, PW1 made a cash deposit of 1,000,000/- and promised to pay a balance of 6.000,000/- by 15/06/2008. That PW1 ignored to pay the balance of 6,000,000/even after various reminders hence breaching the agreement, prompting him to cancel the agreement and offer a refund of PW1's initial deposit of 1,000,000/. That PW1 then reported a case at Police and RDC's office who all concluded that he was lying. He testified further that in 2013, the same matter was investigated by the Directorate of Criminal Intelligence and Investigation Land Protection Unit Kibuli under CRB/971/2013 (PEX5) and that on 11/12/2013 they reported that PW1 paid only 1,000,000/-. That DW1 only paid 1,000,000/- and that the purported full payment is a forgery which he has never received nor signed for. During cross examination, DW1 testified he inherited the suit land from his grandfather Blasio Nkulabantyo and got letters of Administration hence becoming registered thereon as an administrator (PEX3 and PEX4). That at the

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time he sold land to PW1, they only had a Block number which was 145 without a plot number. He admitted to have signed on PEX2, where he was given 200,000/- and showed that the balance was 1,800,000/- but added that PEX2 was written in English but, never complained that the document was not written in Luganda. He also testified that he was not threatened at the time he signed *PEX2*. In Re-examination, DW1 confirmed to court that PEX3 (Letters of Administration) were drafted by his lawyer after he explaining to him the application in Luganda. That PEX1 has two stamps but he has never got the $4,000,000/-$

DW2, a former LC1 defence secretary at Buteera village, stated that on 15/03/2008, DW1 and PW1 entered in to a land sale agreement at a consideration of 7,000,000/-. That PW1 made a deposit of 1,000,000/-, whose receipt DW1 acknowledged in his presence; and that PW1 promised to pay a balance of 6,000,000/- by 15/06/2008. That the 1,000,000/- was the only money he saw exchange hands. That later, DW1 complained to him that PW1 had refused to pay the balance and had notified PW1 of an intention to cancel the agreement. That PW1 refused a refund of 1,000,000/- which DW1 offered him. Under cross examination, DW2 confirmed that he witnessed on PEX 1, that the same has no block or plot number and he has never seen the title to the suit land.

## **Submissions by Counsel.**

Counsel for the Plaintiff relied on the case of Dr. Vincent Karuhanga T/a Friends Polyclinic Vs National Insurance Corporation & Anor, HCCS No. 617 of 2002 where Bamwine J., held that:

a contract is a legally binding agreement. An agreement arises as a result of an offer and acceptance. That there are requirements that have to be satisfied for an agreement to be legally binding and that is; - consideration, intention to create legal relations, capacity, may be oral or written or partly oral or partly written, must be legal and must be rendered either by some common inherent defect such as operative mistake.

Counsel argued that the agreement in dispute met the above features and is, therefore, a valid contract.

Counsel further relied on the case of Nakawa Trading Co. Ltd Vs Coffee 140 Marketing Board CS No. 137 of 1991 and Ronald Kasibante Vs Shell (U) Ltd HCCS No. 542 of 2006 and argued that DW1 tendered PEX3 (Letters of Administration vide Administration Cause No. 510 of 1994). That under the

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petition, DW1 stated that the land left by the deceased Blasio was comprised in Kyadondo Block 169 Plot No. 33, and tendered in *PEX4* a certificate of title for land comprised in Kyadondo Block 145 Plot 32 and 34. That the contract placed an obligation upon the Defendant to deliver vacant possession which DW1 failed to do, hence breaching the agreement.

# In reply, Counsel for the Defendant cited the case of Green Boat Entertainment Ltd vs. City Council of Kampala (HCT 580/2003) where it was held that:

in law, when we talk about a contract, we mean an agreement enforceable by law. For a contract to be valid and legally enforceable, there must be capacity, consensus ad item and valuable consideration, legality for purpose and sufficient certainty of terms. If in a given transaction any of them is missing, it could be called something other than a contract.

He argued that the transaction between the parties amounted to no contract for want of intention and consideration. That the agreement stipulated for 7,000,000/- to be paid before 15/06/2008 but to date, the Plaintiff has not paid up the whole purchase price. He further relied on Section 3 of the Illiterates Protection Act Cap 288 to support argument that the Defendant cannot read or write; and that it was the Plaintiff's Counsel who drafted PEX2 despite the Defendant not receiving the 4,000,000/- mentioned therein. Further, that the Plaintiff has never paid the purported balance of 1,800,000/-.

Additionally, argued that the Plaintiff did not lead any evidence for his failure to pay the consideration within the stipulated time. He cited the case of Stanbic Bank Ltd vs Uganda Crocs Ltd SCCA No. 4 of 2004 and argued that he who comes to equity must come with clean hands; and that the Plaintiff seeks equitable remedies with un-clean hands.

In rejoinder, Counsel for the Plaintiff argued that the Defendant has not disputed the agreement entered into and that the Defendant did not counter-claim for the unpaid balance. That the Defendant has not also challenged the contents of PEX2, by, perhaps, seeking for a hand writing expert.

Determination of Issue No. 1: Whether the parties entered into a sale agreement for land comprised in Buteera?

In proof of the alleged sale agreement, the Plaintiff exhibited PEX1(a), which 180 was not disputed by the Defendant. PEX1(a) clearly indicates the elements of a

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contract as alluded to earlier. The balance on consideration in $PEX1(a)$ is 6,000,000, and was to be paid by $15/06/2008$ .

- 185 In William Kasozi vs DFCU Bank Ltd HCCS No. 1326 of 2000, Byamugisha J., noted 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'. - 190 In this case, there is no evidence of fraud, or misrepresentation to vitiate $PEX1(a)$ . Therefore, I find that the parties entered into a contract for sale land at Buteera, which they are bound to. Accordingly, the first issue is found in the affirmative.

#### Issue 2. If so, who of the parties breached the said sale agreement?

- It is undisputed that under the contract in $PEX1(a)$ , the Plaintiff made a first deposit of 1,000,000/- of the total purchase price of 7,000,000. However, there is a dispute regarding full payment of consideration under the said contract, which court must first determine before making a finding on the issue at hand. - According to *PEX 1 (a)*, dated $15/03/2008$ , it is stated as follows:

I, Kitengo Bulasiyo of Butera have sold to Mr. Sentongo Henry.... I have sold to him 10 acres at Ugx 7,000,000/- my share of land at Butera He has paid *Ugx 1,000,000/-. The balance of Ugx 6,000,000/-, he will pay on* $15/06/2008$ *.*

205 I note, though, that at the bottom of *PEX 1 (a)*, it is indicated that another 4,000,000/- was paid/received on the same day $(15/03/2008)$ . Thus, whereas $PEX1(a)$ shows payment of the said amount on the date of execution of PEX1(a), PW1 testified that he paid the said amount two weeks thereafter. He further testified that the parties went to the Chairperson who stamped and wrote that the balance was 2,000,000/. PW1 also testified that in August 2008, he paid the 210 2,000,000/-, but also testified that when he paid 1,800,000/-, the office (Kauma **Management Service at Wandegeya**) asked him for 100,000/- which he did not pay hence not giving him any document. It is clear that the preceding statements are inconsistent.

> It is now settled law that grave inconsistencies or contradictions, unless satisfactorily explained, will usually, but not necessarily, result in the evidence of a witness being rejected (See Twinomugisha Alex and two Others vs Uganda, S. C. Criminal Appeal No. 35 of 2002 and Uganda vs. Abdallah **Nassur** [1982] HCB). What constitutes a major inconsistency or contradiction

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varies from case to case but always depends on whether or not the inconsistent or contradictory elements are material to the determination of the case. Materiality is determined basing on the relative importance between the point being offered by the inconsistent or contradictory evidence and its consequence to the determination of any of the elements necessary to be proved (Odur David vs. Ocaya Alphonse & Others High Court Criminal Appeal No.34 of 2018).

In this case, there is no doubt that PW1's testimony about full payment of the purchase price is material to the determination of the issue at hand. In other words, the inconsistency/contradiction is grave.

It suffices to note that PW2 never witnessed PW1 paying the alleged 4,000,000/or 1,800,00/-, except 1,000,000/- paid at the execution of PEX1(a). Had she witnessed that, perhaps her testimony would have assisted in evaluating PW1's testimony against PEX1(a). Thus, in light of the preceding paragraph, I am constrained to reject PW1's evidence.

On the contrary, DW1 and DW2 testified that the Defendant never received the 4,000,000/-, or any other amount except 1,000,000/- and 200,000/- mentioned in paragraph 6 of his witness statement dated 24/6/2024 and admitted during cross examination that he received another payment of 200,000/= on $8/7/2008$ and that he called Sentongo several times so that he refunds him his 1,200,000/- since he failed to pay again but he refused and just abused him.

It is recalled that the burden of proving that the purchase price under PEX1(a) 245 was fully paid is on the Plaintiff (Section 101(1) and 102 of the Evidence Act Cap.8) Having not adduced cogent evidence to contradict that of DW1 and DW2, and in view of the grave inconsistence/contradiction his own evidence, I find that only 1,200,000/- was paid under PEX1(a) and PEX2.

It suffices to mention that the Plaintiff was bound to pay the whole balance of 6,000,000/- under PEX1(a) by $15/06/2008$ . Under Section 46(1) of the Contracts Act of 2010, 'where a party to a contract promises to do a certain thing at or before the specified time, the contract or part of the contract that has not been performed becomes voidable at the option of the promise, if the intention of the parties was that time was of the essence to the contract'.

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In this case, the parties clearly stipulated a time within which the said balance was to be paid, hence making time to be of essence. However, as already noted. the said money was not paid by that date.

In Ronald Kasibante vs Shell Uganda Ltd (supra), breach of contract was defined as 'an instance where a party neglects, refuses or fails to perform any part of the bargain or any term of the contract, written or oral without a legitimate/legal excuse'. Having failed to pay the whole balance of the purchase price of the suit land within the stipulated time, I find that the Plaintiff neglected to perform a term of the contract under PEX1(a) thereby being in breach of the same. Consequently, I find that the Plaintiff breached the agreement at hand.

### **Issue 3; Remedies available?**

As Section 46(1) of the Contracts Act of 2010 guides, a contract becomes 270 voidable upon breach "if the intention of the parties was that, time was of the essence to the contract."

In this case, I already found that time was of essence. Thus, it means that the agreement at hand became voidable following the Plaintiff's failure to pay a balance with a time stipulated in the said agreement.

Under Section $1(c)$ of the same Act, a voidable contract is one which is enforceable at the option of one party. In this case, that one party ought to be the Defendant, and not the Plaintiff.

It is evident that this action seeks the enforcement of a contract by an order of specific performance. However, it was brought by a party in breach of the same, Plaintiff. To that extent, Counsel for the Defendant argued that the Plaintiff came to court with unclean hands despite seeking an equitable relief, which I agree with. For that reason, I find that the Plaintiff is not entitled to any reliefs sought.

The above notwithstanding, the Defendant admitted to having received 1,200,000/- since 2008 and was willing to pay it back. Under Sections 16 of the Evidence Act Cap. 8, an Admission is defined as a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and in the circumstances, hereinafter mentioned.

Section 20 of the same Act further provides that 'Admissions are relevant and maybe proved against the person who makes them...', the said admission is good

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evidence against the Defendant. In view of that, it would be unjust for the Defendant to retain the said amount, notwithstanding that the Plaintiff failed to prove his claim. Therefore, this court hereby invokes its inherent power under Section 98 of Civil Procedure Act (C. P. A) and directs the Defendant to refund the said 1,200,000/- to the Plaintiff with interest of 8% from the date of this judgement until payment. The plaintiff has failed to prove his case on a balance of probabilities, the suit is hereby dismissed.

I order each party to bear their own costs.

I order each party to bear their own costs.<br>Signed, dated and delivered at Kampala this. 13. day of Month 2025.

Nabakooza Havia, K Judge