THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(CIVIL DIVISION)

CIVIL SUIT NO. 366 OF 2017

LUZINDA MARION BABIRYE::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFF

VERSUS

1. SSEKAMATTE
(Alias Mulwana Samuel)
2. MUKUNGU FREDRICK
3. (Alias Kiiza Moses :::::::::::::::::::::::::::::::::::::::::::::DEFENDANTS

4. Kisawuzi Godfrey
5. A ONE FRED
(Alias Mugisha Jerome)

BEFORE HON. JUSTICE MUSA SSEKAANA

JUDGMENT

BACKGROUND

The plaintiff filed this suit seeking compensation in general damages, special

damages, exemplary damages, interest and costs of the suit for the fraudulent

actions of the defendants.

The plaintiff while in Netherland got in touch with M/S LG Property Agents where

she found the 4th defendant who purportedly informed her that he was an

employee of the said company dealing in real estate. The 4th defendant introduced

the 1st,2nd and 3rd defendants to the plaintiff as the registered proprietors of the

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land comprised in Bulemezi Block 746, Plot 6, Plot 10, and Plot 11 land at Bale. The

plaintiff requested for photocopies of the certificate of title and instructed her

lawyers to make searches at the land registry. The said search was made at

Bukalasa land office and search certificates were issued showing that the 1st,2nd

and 3rd defendants were the registered proprietors in there misrepresented names.

The plaintiff and her brother Wasswa Luke carried out a physical search together

with the defendants and it showed that the land belonged to the defendants. There

were people cultivating on the land on behalf of the defendants who affirmed the

ownership. The parties entered into an agreement where the plaintiff agreed to

purchase 200 acres from the 1st,2nd and 3rd defendants at a purchase price of UGX.

140,000,000/= at UGX.700, 000/= for each acre. An agreement was executed and the

1st installment of UGX.100,000,000/= paid. The defendants tendered in their 3

original duplicate certificates of title and their national identity cards. The plaintiff

opted to pay the balance earlier and take possession only to find that all known

mobile phones of the defendants were off raising suspicion of fraudulent acts. The

plaintiff travelled back to Bukalasa to lodge caveats on the said land only to be

notified by the Registrar that the said titles were forged and were hence cancelled.

The plaintiff has requested them to refund the monies but all in vain.

The plaintiff was represented by Mr. Faisal Mularila whereas the defendants did

not enter appearance to defend the suit having been served.

The plaintiff filed a scheduling memorandum wherein she proposed the following

issues for determination by this court.

1. Whether there was breach of a contract by the defendants.

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 2. Whether the agreement between the plaintiff and the defendants was

procured vitiated by fraud and misrepresentation.

3. Whether the plaintiff is entitled to money had and received.

4. What remedies are available to the parties?

The parties were ordered to file written submissions; the plaintiff accordingly

filed the same but the defendants did not.

The submissions were considered by this court.

DETERMINATION OF ISSUES

Issues 1 and 2 shall be resolved by this court together accordingly

Issue 1

Whether there was a breach of contract by the defendants.

Issue 2

Whether the agreement between the plaintiff and the defendants was procured

vitiated by fraud and misrepresentation.

Submissions

Counsel for the plaintiff submitted that there was a valid contract between the

plaintiff and the defendants as defined under section 10 of the Contracts Act, 2010.

He cited the matter of Dr. Vicent Karuhanga v Nic and URA (2008) ULR at pg.666

where court stated considerations for an agreement to amount to a contract. It was

stated that the defendants represented to the plaintiff that they had land for sale

where a purchase price of UGX. 140,000,000/= was agreed upon and an installment

of UGX. 100,000,000/= paid to the vendors who were “Kisawuzi Godfrey”,

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“Mulwana Samuel” and “Kizza Moses” upon all parties appending their

signatures on the agreement. The defendants handed over the duplicate

certificates of title to the plaintiff’s lawyer to be given to the plaintiff upon payment

of the balance worth UGX. 40,000,000/=.

Counsel defined the breach of a contract 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 (see: Black’s Law Dictionary 8th Edition pg.200).

PW1 testified that when she called the defendants to visit the land for the purposes

of surveying her portion, all the known telephone contacts were off. It was also

testified that PW1 and PW2 went with the investigating officer and took the

duplicate certificate of titles that were deposited with the lawyers to Bukalasa for

certification where they were informed by the Registrar that the said titles were

forged and cancelled. PW1 and PW2 also found out that the suit land was owned

by Kizza Moses, Kisawuzi Godfrey and Mulwana Samuel but the 1st, 2nd and 3rd

defendants had forged the national identity cards.

Counsel further submitted that failure to file a defense raises a presumption or

constructive admission of the claim in the plaint and must be accepted as truth

(see: Sylan Kakugu Tumwesigyire v Trans Sahara International General TRDG

L.L.C HCT-00-CC-CS-0095 of 2005).

The defendants were duly served but did not file a written statement of defence,

counsel therefore submitted that the plaintiff’s plaint and evidence are taken as

truth.

Determination

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Issue 1 and issue 2 shall be resolved together by court.

As defined by counsel, there was a binding contract between the plaintiff and the

defendants for the sale and purchase of land at a consideration of UGX.

140,000,000/=. The plaintiff entered into an agreement with the 1st, 2nd and 3rd

defendants for sale and purchase of land in Luweero. This contract was acted upon

by the plaintiff who made a part payment of UGX. 100,000,000/= and remained

with an outstanding of UGX. 40,000,000/=. The defendants however did not meet

their obligation under the contract as they misrepresented on being the land

owners and also forged the certificates of titles to the land which were later

cancelled by the Registrar of lands. This was a breach of the contracted by the

defendants due to the fraud and misrepresentation to the plaintiff.

Fraud was defined by court in Fredrick Zaabwe v Orient & 5 Ors Civil Appeal

No. 04/2006 while relying on the Black’s Law Dictionary 6TH Edition page 660,

as:

“An intentional perversion of truth for the purpose of inducing another in reliance upon

it to part with some valuable thing belonging to him or to surrender a legal right. A false

representation of a matter of fact, whether by words or by conduct, by false or misleading

allegations, or by concealment of that which deceives and is intended to deceive another so

that he shall act upon it to his legal injury.

Fraud and misrepresentation vitiate a contract and make the contract voidable

(see: the Contracts Act, 2010, section 16).

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I therefore find that there was breach of a contract between the plaintiff and the

defendants and that the defendants misrepresented to the plaintiff about the true

ownership of the land and were fraudulent in their dealings.

Issue 1 and 2 is resolved in the affirmative.

Issue 3

Whether the plaintiff is entitled to monies had and received.

Submissions

Counsel for the plaintiff submitted that there was total failure of consideration as

the defendants had no land sold to the plaintiff. Counsel cited the case of Gerald

Nsubuga v Petwa Womushro C.A No. 102 of 2012, Court of Appeal, where it was

held that failure of consideration was contemplated by the parties by the time the

contract was entered into but either on account of some innate defect in a thing to

be given, or non-performance in the whole or part of that which promise agreed

to do, nothing of the value can be or is received by the promise. Counsel stated

that the defendants fraudulently received UGX. 100,000,000/= from the plaintiff

purporting to sale land they have never owned using forged titles. He further

stated that under clause 10 of the agreement, the defendants undertook to

indemnify the plaintiff in case they fail to deliver vacant possession. In the

circumstances, counsel submitted that the plaintiff is entitled to the refund of UGX.

100,000,000/=.

Determination

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The plaintiff entered into an agreement with 1st, 2nd and 3rd defendants for

purchase of land where she made a part payment of UGX. 100,000,000/= for the

same. However, the defendants did not deliver the said land under the agreement

after receipt of the agreed purchase price.

I therefore concur with submissions of counsel that this entitles the plaintiff to the

money had and received of UGX. 100,000,000/= since the contract was not

performed on the side of the defendants.

This issue is therefore answered in the affirmative.

Issue 3

What remedies are available to the parties?

The plaintiff in her pleadings prayed for: Refund of money had and received of

100,000,000/=,General damages ,Special Damages ,Exemplary damages,Costs of

the suit, Interest on the damages at 25% from the date of filing the suit.

The plaintiff is entitled to get back her money paid for the failed land transaction

of 100,000,000/=.

Special Damages

As submitted by counsel it is indeed trite that special damages must not only be

specifically pleaded but they must also be strictly proved (see Borham-Carter v.

Hyde Park Hotel [1948] 64 TLR.

The plaintiff led evidence to show that she incurred expenses on instructions to

lawyers to carry out a search on the land, lodge caveats, transport costs, legal fees

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and deployment of police officers to track the defendants and to also arrest the

same. (See: P EXEB 2, P EXEB 4, P EXEB 7, P EXEB 15, P EXEB 19 PW1 and PW2

evidence on record)

I have perused all the records adduced by the plaintiff and I am satisfied that the

plaintiff has proved the special damages.

The plaintiff is awarded special damages to the tune of UGX 22,980,000 as prayed

for and proved.

General damages

It was submitted that the plaintiff had to travel from Netherlands to Uganda to

buy land that never materialized from the defendants and further to testify before

this court against the defendants, facilitate witnesses and psychological torture.

Counsel prayed for an award of UGX. 70,000,000/= as damages at an interest rate

of 25%

As far as damages are concerned, it is trite law that general damages are awarded

in the discretion of court. Damages are awarded to compensate the aggrieved,

fairly for the inconveniences accrued as a result of the actions of the defendant. It

is the duty of the claimant to plead and prove that there were damages losses or

injuries suffered as a result of the defendant’s actions.

I find that the plaintiff has discharged his duty to prove damages and

inconvenience caused as a result of the defendants’ actions.

The plaintiff is awarded UGX 30,000,000 as general damages.

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Exemplary damages

Counsel submitted that punitive /exemplary damages are awarded to deter the

respondents from doing such acts on other public officers (see: Dorothy Tuma v

Elithabeth Muller & Anor C.S No. 229 of 2011). He stated the defendants forged

and presented forged duplicate certificates of titles and national identity cards to

the plaintiff and presented themselves as the owners of the said land. The 1 st and

2nd defendants also pleaded guilty to the offences but have refused to refund the

plaintiff’s money and kept threating the plaintiff to cease from tracking them. He

therefore prayed for a sum of UGX. 50,000,000/= as exemplary damages.

The rationale behind the award of exemplary damages: exemplary damages

should not be used to enrich the plaintiff, but to punish the defendant and deter

him from repeating his conduct.

An award of exemplary damages should not be excessive. The punishment

imposed must not exceed what would be likely to have been imposed in criminal

proceedings, if the conduct were criminal. Per Spry V.P. in Obongo Vs Municipal

Council of Kisumu [1971] EA 91. All circumstances of the case must be taken into

account, including the behaviour of the plaintiff and whether the defendant had

been provoked. See O’Connor Vs Hewiston [1979] Crim. LR 46, CA; Archer Brown

[1985] QB 401.

Bearing those principles in mind I find that an award of UGX 15,000,000 sufficient

as exemplary damages.

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The plaintiff is awarded interest at a rate of 20% from the date of filing the suit

until payment in full on the refund of 100,000,000/= and interest shall be 12% on

the rest of the awards of General and Exemplary damages.

Costs to the plaintiff.

I so order.

SSEKAANA MUSA
JUDGE
13th March 2020.

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