THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA

COMMERCIAL COURT DIVISION

HCT-00-CC-CS-0099-2003

Bunzingiye Nikuze Therese                                                            Plaintiff

Versus

Abdallah Hassan                                                                           Defendant

BEFORE: THE HONOURABLE MR. JUSTICE FMS EGONDA-NTENDE

JUDGMENT

1. The plaintiff is an adult Rwandese female of sound mind who is seeking multiple relief against the defendant. She is seeking specific performance of a contract of sale dated 20^th September 2001, together with general damages for breach of contract, mesne profits with interest thereon, interest on US$42,400.00 from 7^th March 2002 till payment in full and final payment, and costs of this suit. This is arising from a contract of sale of a house, at Plot No.1891, Muyenga, Kampala at a price of US$115,000.00. The purchase price was partly paid in kind, and partly in cash. Payment took longer than initially agreed but final payment  of the purchase price was made on or about the 17^th February 2003. In addition the defendant made other payments to the plaintiff to cover the plaintiff's costs in the matter like eviction costs security charges for the period defendant was not in occupation, return air ticket for Plaintiff from and to Kigali, and plaintiff's counsel fees and costs incurred in the matter.
2. This action is brought because the defendant refused to pay mesne profits, interest, and damages, that had been agreed in a meeting on 30^th January 2003 but which the defendant refused to accept and sign an agreement that had been prepared by the plaintiff's counsel. The plaintiff further claims that by reason of the defendant's breach the plaintiff was deprived of rent from 21^st December 2001 at the rate of US$2000.00 per month. Despite several demands the defendant refused to deposit the log books and signed transfer forms, presumably in respect of the vehicles, that were part payment of the purchase price, in kind.
3. The defendant denies the plaintiff's claim, and in particular states that he performed his contractual obligations under the contract. It is the plaintiff who has refused to surrender the certificate of title as agreed. The defendant denies that he owes the plaintiff any rent and asserts that the plaintiff is not entitled to any remedy as prayed. The defendant counter claims for US$5,000.00 plus interest being money paid as rent for alternative accommodation during the period of 4 months in which the plaintiff had illegally evicted the defendant from the house he had purchased from her, as well as transport charges and miscellaneous expenses incurred. The defendant prayed for judgment on the counter claim, interest and costs of the claim. He prayed that the plaintiff's suit be dismissed with costs.
4. At the scheduling conference before my sister, Arach-Amoko, J., on 8^th July 2003, the parties agreed upon certain facts, issues, admission of documents as exhibits without proof in the ordinary way, interpreters and the number of witnesses to be called by each side. From the agreed facts, it is clear the parties agree that there was a sale agreement, and the contract price has now been fully paid. The defendant was evicted from the premises on 2^nd November 2002 and he re-entered on 17^th February 2003 after paying the contract price. The defendant deposited the trucks with the plaintiff.
5. The agreed issues were four. Firstly whether the plaintiff is entitled to rent as alleged. Secondly whether the defendant breached the contract. Thirdly whether the plaintiff is entitled to the relief sought in the amended plaint. Lastly whether the defendant is entitled to the relief in the counter claim. The plaintiff called two witnesses including the plaintiff herself. The defendant called two witnesses.
6. PW1, Bunzingiye Nikuze Tereza, stated that she is a businesswoman. She knows the defendant through her husband. She was looking for a buyer for her house in Kampala, Plot No.1891 Muyenga, and the defendant agreed to buy the house. There was a written agreement. The price of the house was US$115,000.00. This was paid with a vehicle given to them finally valued at US$40,000.00 and the rest was to be paid in cash.
7. The vehicle was not used because the defendant did not hand over to them the log book of the truck. The defendant did not pay within three months. US$42,000.00 is still outstanding. There was a verbal agreement between the plaintiff’s husband and the defendant that the defendant would pay rent for the house at the rate of US$2,000.00 per month.
8. The plaintiff prayed that this court should order the defendant to pay the balance of US$42,000.00; rent of US$2,000.00; interest on those 2 items and costs.
9. In cross examination she stated that she is unaware that the defendant has paid the balance of US$42,000.00.
10. PW2 was Anthony Rwabunkamba, of Congolese and Rwandese nationality. He is businessman. He stated that he owned a house in Muyenga in the names of his wife, Bunzingiye Nikuze. He agreed to do barter trade with the defendant. The defendant would give him a truck and add him some money. The defendant would take the house. However that before everything was settled, the defendant was to pay rent of US$2,000 for the house. The agreement is exhibit P1.
11. PW2 wrote a chit to the person keeping the house to allow the defendant enter the premises as a tenant. That is exhibit P3. The defendant did not pay the rent. He also did not bring the log book for the truck. He failed to pay the balance of the purchase price. PW2 decided to cancel the transaction. The witness instructed his lawyers, hence this suit.
12. In cross examination the witness denied receiving the log book from the defendant. Asked why the fact that the log books were yet to be delivered had not been put in the agreement he stated that he trusted the defendant. He has tried to sell the trucks but he has been unsuccessful as he does not have the log books. He denied evicting the defendant from the house while admitting he made an attempt to do so. He is not aware whether the defendant was evicted. He was unaware that the balance of the purchase price was paid. He received some money but he thought this is rent. That was the close of the plaintiff’s case.
13. The defendant testified as DW2, given the initial aborted attempts of the defendant and one other witness to testify before my brother, Y Bamwine, J. He testified that he knows the plaintiff. He was doing business with her husband. They sold to him a house in Muyenga, and he in turn paid them, in kind and cash. He gave them a Mercedes Benz truck with a rando trailer that was valued finally at US$40,000.00. He gave to PW2 the log books for the vehicles. On the day they made the agreement he also paid them US$20,000.00 in cash.
14. DW2 did not pay the balance of the money on time and he was evicted from the house at some point. He finally paid the balance of the purchase price and the house was returned to him. During the time he stayed away from the house, he was staying with his son, at Namirembe road. He stayed away from the house for three months. All the plaintiff had been demanding from him was the balance of the money, and not the log books. He does not know why he is being sued because he paid all the money. He prayed that court helps him to give him the title to the house as the plaintiff does not demand anything from him.
15. In cross examination he stated that one vehicle is in the names of his son, Ali Abdulla and the other vehicle is in the names of the person who sold the vehicle to him, Uwimaana. He did not give them the signed transfer forms for the vehicles as he was waiting for the signed transfer forms for the house. It was possible to use the vehicles without their transfer after sale, and it is possible to renew licenses for them.
16. The vehicles are in Rwanda. The trailer was sold by PW2 to Alleh Gakuba and Dona is in possession of the truck head.
17. When the witness initially failed to pay the money the plaintiff did not return the vehicles to him or the money that he had paid at the time.
18. DW3 was Kalinda Kavunga Donatien, living in Kigali, Rwanda. He stated that he knew Mr. Rwabakumba as a businessman and transporter in Kigali. He bought a Mercedes Benz truck from him in 2004. An agreement was made which was signed by Mr. Desire Dunia Mbuguje, in charge of Finance in Mr. Rwabakumba’s company. It was model 2631 chassis number WDB6591021K108361.  The agreement is dated 9^th January 2004. The truck was in Mr. Rwabakumba’s compound at the time he bought it.  That was the close of the case for the defendant.
19. I will now proceed to resolve the issues that the parties agreed to before Arach-Amoko, J. However before I do so, it is clear on the testimony of the plaintiff and her husband that what they seek on their evidence is not captured on the issues agreed. Neither is it consistent with their pleadings or the agreed facts by their counsel. While on the plaint it is averred that the defendant finally paid the purchase price in full, on the plaintiff’s and her husband’s testimony, they were claiming that this suit was brought to recover the balance of the purchase price, being US$42,000.00. It is clear on the agreed facts that contract price was paid in full.

Issue No.1: Whether the plaintiff is entitled to rent as alleged?

20. The plaint put the claim for rent in the following language:

‘u. The plaintiff shall aver and contend that the defendant breached the contract of sale without any lawful excuse and because of his failure to honour his several promises, unnecessarily elongated the transaction to its present stage. As a Consequence the plaintiff was deprived of her earnings from her house, put in considerable trouble, loss, inconvenience and delay. Particulars of Loss – Loss of rent from 21^st December 2001 up to the time this matter is settled in court, at the rate of US$2,000 per month.’

21. It appears to me that the substance of this claim is one for general damages for breach of contract that occurred by the defendant. It cannot be a claim for rent as rent is due on a tenancy of the premises. In the relief part of the plaint, what is claimed are mesne profits at the rate of US$2,000 per month from the 20^th December 2001 until full payment is effected as ordered by court. No rent is claimed.
22. The plaintiff in her testimony alleged an agreement, albeit verbal, between her husband and the defendant that the defendant would pay rent for as long as he remained in default of paying the purchase price. However, she was not present when this alleged agreement was made. Her husband, PW2 also claimed the existence of such an agreement but this alleged agreement is not pleaded, and it is not the basis, on the pleadings for the claim of rent.
23. I am satisfied that the claim for rent must fail as no agreement which would provide the basis for the rent has been pleaded or even proven.

Issue No.2: Whether the defendant breached the contract?

24. Without doubt this issue can be answered in the affirmative. The defendant had agreed to pay the balance of the purchase price within 3 months from 20^th December 2001 and he did not. His failure to pay the balance of the purchase price within the agreed time period amounts to breach of the contract. I must note, however, that the plaintiff, much as she could have been entitled to rescind the contract, in light of this breach, chose not to do so, and instead accepted payment of the purchase price when it was finally tendered, in addition to paying of other expenses incurred by the plaintiff and her advocates as set out in paragraph 4(s) of the amended plaint.
25. The other breach alleged is the failure to provide to provide to the plaintiff log books for the vehicles and transfer forms for the same duly signed. The plaintiff does not mention log books in her testimony. In her prayers to this court she does not ask the court to order the defendant provide the log books. PW2 claims that the arrangement was that the log books would be handed over at the same as they would hand over the title to the house after payment of the purchase price. However, he then went to say that when he asked the defendant about the log book, the defendant said he would bring it the following day.
26. The defendant’s response is that with regard to the transfer forms he was waiting for the plaintiff to provide duly signed transfer forms for the house so that these would be mutually exchanged. With regard to the log books he stated that he handed the log books to the plaintiff’s husband on the day they signed the agreements. He stated in his testimony that prior to the institution of the suit the plaintiff had never demanded the log books because she had them. Log books have not featured in correspondence and agreements between the parties because he had handed them to PW2. He points to the notice of intention to sue issued by the plaintiffs’ advocates, exhibit D2 that did not mention the log books at all.
27. It must be pointed out that there was no express provision in the written agreement with regard to the question of log books for the vehicles, the time of their hand over, and the transfer forms for the same. It can only be an implied term into the contract that the defendant must at some point hand over the log books of the vehicles and transfer forms duly signed for the same.
28. I am inclined to accept the version of the defendant given the inconsistency in the testimony of PW2 on this matter. I accept that the defendant provided the log books to PW2 and what remains to be done is to provide transfer forms duly signed for the said vehicles, upon the plaintiff providing to the defendant duly executed transfer forms for the house purchased by the defendant.

Issue No.3: Whether the Plaintiff is entitled to relief sought in the amended plaint?

29. The plaintiff prayed for an order of specific performance of the contract of sale signed on the 20^th September 2001. I see no reason for this order to issue. The defendant substantially performed what he was required to do under the written contract by the time this suit was instituted. What he was required to do was to pay the purchase price. The plaint acknowledges that the purchase price was paid in full.
30. The plaintiff prayed for general damages for breach of contract. I am satisfied that the contract in question was breached by the defendant. The plaintiff would ordinarily be entitled to damages subject to proof of loss or damage. On the plaint it is clear that the defendant has already paid some undisclosed sums of money on account of the costs that the plaintiff incurred as a result of the defendant’s breach.
31. The testimony of the plaintiff is not helpful on this item, as it generally departed from her own pleadings. Her testimony did not address the issue of general damages. Nevertheless the plaintiff was a business person who, I assume, would have put the money that was due to her to some profit. Since she was kept out of funds for about 14 months, 20^th December 2001 to February 2003, she must have suffered loss for none use of those funds.
32. The sum delayed to be paid was US$42,000.00 and it was paid over a period in instalments. A 15% per cent return on this sum would be sufficient, in my view, to address the loss the plaintiff suffered. I award the plaintiff Shs.10,000,000.00 as general damages. It will carry interest at court rate from today till payment in full.
33. The plaintiff has prayed for mesne profits from 20^th December 2001 until payment is effected as ordered by court. The right to mesne profits is summarised in Principles of Land Law in Uganda by John Mugambwa at page 105. The learned author states,

‘Where the lease is determined and the tenant remains in possession contrary to the landlord’s wishes, the landlord may claim damages for loss of ‘mesne profits’. The action for mesne profits is a specie of the law of trespass and it lies to recover damages suffered by the landlord for being kept out of possession. The right to mesne profits accrues from the date the tenant was supposed to deliver vacant possession to the time when vacant possession was actually given and the premises made habitable.’

34. The plaintiff has not established a landlord tenant relationship with the defendant. Neither has the plaintiff established trespass on the part of the defendant. Thirdly in the agreement of 20^th September 2001 it had been agreed that in event of failure to perform the agreement after three months, the parties would revert to their former positions, and the agreement would effectively be rescinded. In spite of this express provision, which I suppose would entitle the plaintiff to possession if exercised, the plaintiff did not insist on rescission of the contract. She condoned the breach of contract. Indeed it is the position of the plaintiff on the plaint that the agreement was performed, in spite of the breaches of the defendant.
35. In the circumstances the plaintiff having not rescinded the contract, and returned the vehicles to the plaintiff, she can not claim mesne profits, as she is not able to assert a right to possession of the house in question. This claim for mesne profits fails.
36. A substantial part of the plaintiff’s claim has failed. I award her one quarter of the costs that she has incurred in these proceedings, and the defendant is awarded three quarters of the costs he has incurred in defending these proceedings.

Issue No.4: Whether the defendant is entitled to the relief in the counter claim?

37. There was no evidence adduced to support the defendant’s counter claim. It was abandoned during submissions. It is dismissed accordingly with costs.
38. There is one other matter I need to address. The plaintiff deposited in this court the certificate of title to the Muyenga house that was purchased by the defendant. I direct that this certificate of title (Block 244, Plot No. 1891, Muyenga) be released to the defendant by the Registrar of this court. I further direct the plaintiff to deliver to the defendant duly executed transfer forms in respect of the same as it is not in dispute that the defendant has paid the full purchase price for the same. Likewise the defendant should deliver to the plaintiff duly signed transfer forms for the vehicles that he delivered to the plaintiff in partial payment for the house in question. These mutual actions should be completed within 30 days from today.

Signed, dated and delivered at Kampala this 17^th day of June 2008

FMS Egonda-Ntende

Judge