THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

[COMMERCIAL DIVISION]

CIVIL SUIT NO. 250 OF 2009

STEPHEN MWESEZI & ::::::::::::::::::::::::::::::::::::::::::: PLAINTIFFS

ALICE MWESEZI

VERSUS

AKRIGHT PROJECTS LIMITED::::::::::::::::::::::::::::::: DEFENDANT

BEFORE THE HON. MR. JUSTICE HENRY PETER ADONYO

JUDGMENT

1. Facts;

The facts constituting the Plaintiff’s cause of action against the defendants jointly and severally are that the plaintiffs who are a married couple, resident and working in the United Kingdom in November, 2005 entered into an agreement with the defendant for the purchase of land comprised in Busiro Block 395 Plot 519(Formerly 44), Rendezvous Village, at Kakungulu, on Entebbe road for the construction of a residential house at an agreed consideration of Ug. Shs. 130,000,000/=. The defendant was to construct the house on the plot of land in accordance with the architectural and structural drawings specified and attached to the said contract. In addition, the defendant was to hand over a certificate of title and execute transfers of the said property and hand them over to the Plaintiffs upon completion of payment of the purchase price.

That on the 7^th of March , 2007, the defendant issued to the Plaintiffs a bill of quantities for internal and external items required for the construction of the house of which the  defendant acknowledged receipt of 34m/=. Subsequently the plaintiffs paid to the defendant the balance of the purchase price amounting to Ug. Shs. 81,408, 388 in respect of the contract of which the last payment was made on the 4^th day of March, 2009. The defendant is said to have breached the contract when he failed to build the house in compliance with the specifications agreed upon and even abandoned the construction of the house resulting in the house being wasted due to cracks and leakages from the roof with the plaintiff in 2007 taking immediate possession of the house and thereafter completed it with the necessary fittings to complete the remaining works upon the defendant abandoning the construction of the house. The defendant even after failing to complete the house is said to have fraudulently mortgaged the suit property using the title which it should have handed to the plaintiffs and obtained various loans without the knowledge or informing the plaintiffs yet he held the title in its names in trust for the plaintiffs and following the full payments of the purchase price should have registered the same into the names of the plaintiffs as proprietors. The plaintiffs aver that at the time of purchasing the suit property it was undeveloped and after agreeing with the defendant, financed the whole construction of the suit property through cash remittances to the defendant and eventually paid the full purchase price for the property.  That following the construction of the house, the defendant caused the valuation of the house with the intention of defrauding the plaintiffs and kept the plaintiffs from the certificate of title for their house yet they had to travel several times from the UK. Upon failing to secure their title, the plaintiffs’ sued the defendant citing fraud, breach of trust and bad faith particulars of which are indicated in the plaint and for those reasons indicated that they suffered inconveniences and loss for which they claim general damages for which the plaintiffs sought judgment against the defendants for orders whose specifics are also contained in the plaint.

1. Background:

By an agreement dated 5^th November 2005, the Plaintiffs purchased land comprised in Busiro Block 395, Plot 44 (now 519) from the Defendant who agreed to build a house on the suit land at a consideration of Ug. Shs. 130,000,000/= which was paid in full by the Plaintiffs to the Defendant. The suit land Certificate of Title is in the possession of the Plaintiffs though still registered in the name of the Defendant. The Defendant did build the house on the land but it is incomplete by the time this suit was lodged. During the trial and in pursuance to a Consent Order dated 27^th October 2010 an expert Mr. Philip Kaheru of M/s. Ridge Consulting was appointed as a neutral Quantity Surveyor to determine the value of the incomplete works on the property. The parties agreed under clause 3 of the said Consent Order that they would be bound by the findings of the expert. A site meeting was held on the 6^th December 2010 in the presence of both parties. On the 1^st day of March 2011 the expert made his final report to the Registrar of this Court and the parties. In his final report (Ex. P3) the expert found that a sum of Ug. Shs. 182,863,687/= was the cost deemed for completing the remaining work on the suit property. The Plaintiffs therefore on the basis of this report and based on the consent of parties state that a breach a breach of contract had occurred since the parties agreed that the suit house was incomplete after five 5 years from the date of the agreement and so since the parties agreed to be bound by the report of the expert, then the stated sums in the report  be decreed to the Plaintiffs in addition to  general damages for breach, interest and costs of thee suit.

The defendant does not agree to the facts as summed up by the Plaintiffs joins save for his conclusions and prayers for it states that it was not bound by the report of Phillip Kaheru of M/s Ridge Consulting made and submitted to court pursuant to a Consent Order of 27^th October, 2010 for the purpose of the Consent Order and the report arising there from was for M/s Ridge Consulting were appointed to verify the cost of the incomplete works on the plaintiff’s property which report would be presented tothe Court but that the Consent Order was never designed to prove any breach of contract on the part of the defendant but for the court to be informed of the situation on the ground.

The defendant, however, agrees that though it built for the plaintiffs a house on the suit land it was incomplete at the time this matter came for adjudication and that it contests this amount returned by the consultant M/s Ridge for it had no legal or even factual basis for the amount to be decreed to the plaintiffs.

1. Agreed Issues:

1. Whether there was a breach by either party?
2. Whether there were variations to the contract?
3. Whether the parties are entitled to the remedies prayed for?

This matter is resolved by considering the agreed issues as follows.

1. Breach of contract by either party:

To prove their case, the Plaintiffs called two witnesses Mr. Philip Kaheru (PW1) and Mrs. Alice Mwesezi (PW2).  The first witness Mr. Philip Kaheru (PW1) testified that following  a consent order dated 27^th October 2010 he was appointed by  the parties to carry out a works evaluation the finding of which showed that a sum of Ug. Shs. 182,863,687/= was the cost to complete the works. The 2^nd Plaintiff, Mrs. Alice Mwesezi (PW2) testified that the Plaintiffs paid to the Defendant a total of Ug. Shs. 130,000,000/= through receipts marked as Exhibit D4. She went on to state that under Clause 2 of an agreement with the defendant (Exhibit P1), they the Plaintiffs were required to pay all the money in relations to the purchase of the suit property within 30 months from the 5^th day of November 2005 when the contract was signed and that they did oblige by paying the said money to the Defendant within the agreed period but the defendant in breach of the said contract failed to finish the house as agreed a fact which the Defendant admitted and thereafter even agreed with the Plaintiffs that an independent expert be appointed to determine the value of incomplete works. The Plaintiffs thus contend that by the defendant breaching the terms of the contract after the plaintiffs had met their obligations then certainly there was breach which according to the learned authors of the authoritative discourse on the matter, Chitty on Contracts Vol 2 [28^th Edition] at Chapter 37 paragraph 8 on page 516 fell within the rationale of in the principle which discusses such position thus;

“…in a lump sum contract, the contractor is required to carry out and complete the entirety of the named contracts works for a fixed sum agreed in advance…An important question in the context of lump sum contracts is the extent to which completion of the entire contract must be achieved before the lump sum price is payable…The general position is that where, on a true construction, a contract is an entire contract, then the contractor can recover nothing on the contract before work is completed.”

That when this position is related to the instant matter , it can be seen that from the agreement between the parties, the defendant was required to  construct suit house on the land in question at an agreed and fixed cost of Ug. Shs. 130,000,000/= with the Defendant to complete the house within a reasonable time since they had received the full price and thus when the Defendant failed to do so it bore the risk of inflation in construction costs due to its failure to build and hand over the house within a reasonable time with such failure leading to a breach of the contract. That this situation was considered similarly by Justice Lameck Mukasa in the case of United Building Services Ltd v Yafesi Muzira t/a Quickset Builders & Co. HCCS No. 154 of 2005 held that a breach of contract occurs when one or both parties fail to fulfill the obligations imposed by the terms of the contract and that thus this court should similarly find that the defendant breached the contract between it and the plaintiffs and thus should be held responsible for it such breach.

In response to this contention, the defendant stated that though the holding of Lameck Mukasa J in United Building Services Ltd v Yafesi Muzira t/a Quickset Builders & Co was correct in that it clearly points out that  a breach contract occurs when one or both parties fail to fulfill the obligations imposed by the terms of the contract but that consideration should be had to several provisions of the Contracts Act, 2010 especially  section 17 of which relates to situations where parties to an agreement are under a mistake as to a matter of fact which is essential to the agreement then any consent which is obtained by mistake of fact makes the agreement is void and section 51 where the parties to a contract agree to alter the original contract then the  original contract cannot be performed and section 67 where contract may be varied by agreement of the parties and section 66 where a contract becomes impossible to perform then the contract is discharged subject to recovery of sums paid as money had and received with these codifications of the law of contract following  jurisprudence from both Uganda and the Commonwealth for instance in the case of Sheikh Brothers Limited v Arnold Julius Ochksner and Another [1957] E.A. 86 the Privy Council considered the effect of sections 20 and 56 of the Indian Contracts Act which as applicable to Kenya in the same way of was applicable to Uganda under the old Contracts Act, Cap, 73. Those sections were couched in similar to our sections 17 and 66 of the Contracts Act 2010. In that case the parties entered into a licence agreement to produce fifty tons of processed sisal each month. It was subsequently ascertained that the area of land contracted was incapable of producing that quantity of sisal. On a 2^nd appeal, the Privy Council held that the contract was void on account of mistake but also impossible to perform. Similarly, in the case of Ocharm Plumbers & Associates Ltd Drury (U) Ltd HCCCA No. 0723 of 2006, Yorokamu Bamwine J (as he then was) considered a similar case and found that the parties had entered into a sub-contract in the erroneous belief that that there was a principal contract between the defendant and Uganda Wildlife Authority with the learned judge holding that -

“From the evidence presented to Court by the time the plaintiff and the defendant entered into the impugned agreement the matter between the defendant and UWA was in the lawyers speak, still subject to contract.  It appears to me that the defendant had been merely declared the best evaluated bidder for the job. Excited by that prospect, the defendant went ahead to sub-contract the work to the plaintiff. There was nothing definite about the deal.  An offer made subject to contract, and this is where, from the evidence presented to Court, the matter between the defendant and UWA was by the time the impugned agreement was executed, means that the matter remains in negotiation, and there is no contract until a final contract is executed.  In my view, therefore, the letter exhibited to Court, Exh. P6, cannot by any stretch of imagination pass as evidence of a contract between the defendant and UWA.  To do so would be to further misrepresent facts as they stood at the time.  And yet that is what the parties did in this case, erroneously or otherwise. What happened, in my view, comes within the meaning of common mistake in law in that at the time of the agreement, the main contract between the defendant and UWA was not in existence and yet both parties assumed that it was.  In law they must be assumed to have been laboring under common mistake.  I should add that common mistake is common in sales of specific goods, where the goods for example, without the knowledge of the seller have perished at the time when the contract is made.  But it may occur otherwise than in connection with the sale of specific goods.  This (and the fact that truth is often stranger than fiction) was the case in Galloway v Galloway [1914] 30 T.L.R. 531 where the plaintiff and the defendant, each believing that he or she was married to the other, entered into a deed of separation by which the ‘husband’ was to pay maintenance to the ‘wife’.  It then transpired that they had never been married in the first place so the ‘husband’ stopped paying. The ‘wife’ sued him but failed to recover (be awarded) any money due under the deed.  The Court held that the separation deed was void and said that, as a matter of general principle, if the parties to any agreement make a mistake of fact which is both material and mutual then that agreement is void.

The defendant in this matter and on the basis of the above holding avers that in the instant matter there was  fundamental mistake which went  the root of the contract and thus  prevented the true contract to be carried out  since it follows that in the instant matter while the plaintiffs could be able to recover where they could show that their fault was to a lesser degree than the that of the defendant there was complete misrepresentation by the plaintiff of the nature of the house they wanted since they kept changing the style and specifications of the building that while the defendant case was  contracted to construct for the plaintiffs a house for the sum of Shs.130,000,000/=, the numerous variations affected the agreed construction in terms of architectural and structural plans, approvals thereof thus causing delays in construction and also attracted additional costs with further requirement of time to complete the building. That while it was ready and willing to complete the house and hand over this became impossible because the plaintiffs frustrated the possibility of it doing so with the defendant’s witness  Dr. Anatoli Kamugisha who is the CEO of the defendant company testifying that the defendant company could have been able to do so having been in the business of real estate development and sale for over 10 years and having acquired  the capacity to so over the years for it had built and owned several estates but for the fact that the plaintiffs fundamentally breached the said contract having changed on several occasions the specifications making it impossible for the contract to be fulfilled.  The defendant went on to state that sometime in 2005, the plaintiffs contacted it and expressed their desire to buy land and develop thereon a residential house and as a result it offered land and as well as construction services to the plaintiffs to carry out the activity and as such on the 5^th November, 2005 it entered into a contract with the plaintiffs for purchase of the suit property comprised in Busiro Block 395 Plot 519 for a total consideration of Sh.130, 000,000/=. That  under the contract, the plaintiffs’ house was to be constructed in accordance with specifications detailed in drawings and building plans agreed to under the contract and appended thereto as Appendix A but that the plaintiffs did not allow the company to construct the house in accordance with the specifications and building plans under the contract constantly interfering with construction and making variations in the building plans and drawings which called for fresh approvals by the authorities and also caused additional construction costs and all of these consumed construction time while at the same time the cost of building materials also kept rising. Further that under the contract, while the total consideration of Sh.130,000,000/=  the plaintiffs paid Shs.30,000,000/= upon execution of the contract and the balance was to be met within 30 months that is  by 5^th May, 2008 but that between November 2005 and March 2007, the defendant used its own money to construct the plaintiffs’ house yet as by March, 2007 variations amounted to Shs.81,000,000/= which the plaintiffs refused to pay but completed payment of the original consideration thereafter and despite the defendant’s requests, the plaintiffs refused to pay for the additional costs occasioned by their variations in the building specifications. The defendant argued that the contract did not provide a specific period within which the company was to construct and deliver the house to the plaintiffs since the defendant was to use the plaintiffs’ money to build the house with the period for completing construction and handing over the house depended on the payments to be made by the plaintiffs. The defendant averred that the plaintiffs constantly interfered with the construction plans and decided to concurrently develop the land until it became impossible to complete the house and the plaintiffs eventually demanded that the defendant to  hand over the house and vacate the site which eventually led to the filing of High Court Civil Suit No. 87 of 2010 which was later  but that at the time the plaintiffs started interfering with construction of the house in 2007, the defendant had completed 80% of the construction works with all that was remaining being mainly external finishes. The defendant further argued that when the plaintiffs took over the building site completed and excluded the defendant’s agents altogether from it they changed the building structures and plans and redeveloped the land into a modified residential house with  Ridge Consulting valuation of the outstanding works not taking into account the  value the completed construction works which had earlier been done but that when it was eventually quantified it was found that t both the plaintiffs and the defendants underestimated the value of the house at the time the contract was signed which caused the project to suffer increments in the prices of building materials.  The defendant thus contends  that the evidence on record is clear that the parties grossly underestimated the amount of money needed to construct the house when they contracted to do so at Shs.130,000,000/= with the amount of Shs.182,863,687/= in the report of  M/s Ridge Consulting Ltd. showing how much was needed to complete proving that the earlier entered into contract was  impossible to enforce with the  mistake being  so fundamental and goes to the root of the contract and thus rendering the  contract void ab initio.. I have carefully looked at the agreement for the sale of the land in this matter and would not buy this argument as it is not convincing though the jurisprudence from Chitty on Contracts offered by counsel for the plaintiffs is to be very relevant. The contract which was signed by both parties show that there was no way that the defendant could not have foreseen stated interference taking into account its avowed experience in this field for the contract was signed way back in 2005 when the cost of constructing the house in question was seemingly low with one clear term of the contract showing that the defendant would deliver a completed house to the plaintiffs.  Thus my finding in respect of this issue is that the defendant was at fault for not finishing the house much for the full purchase price was paid in accordance with the contract and indeed this situation was exacerbated further by a Consent Order dated 27^th October 2010 signed by both parties and sealed by this court which indicates that both agreed to submit the issue of the valuation of the incomplete works to an expert for determination and did unequivocally commit themselves under clause 3 of the said consent to be bound by the finding of the expert with the expert M/s. Ridge Consulting making a finding  that the value of the incomplete works to be Ug. Shs. 182,863,687/= and since the defendant received from the plaintiffs the agreed amount in return to hand over to the plaintiffs a complete house, it would behove the Defendant to do its duty as contracted and thus meet the additional costs of completing the unfinished house since it did not fulfill its part of the obligation within the time which the contract stipulated yet the plaintiffs met their side of the obligation. It is therefore not open to it at this stage for the defendant to change its position without first setting aside the said consent order as was the position held in the case by this court dated 23^rd January 2015 in the case of  Golf View Inn [U] Ltd v Barclays Bank Uganda Ltd HCCS No. 358 of 2009 where Justice Hellen Obura was faced with the dilemma to consider facts as is in this matter for in that case the parties also had signed a consent order and an expert auditor M/s. Ssejaaka, Kawaase & Co. was appointed to determine a claim over charged interest and the parties just like in the instant case agreed to be bound by the report of the expert. The Defendant turned around, just like the defendant herein, to deny the report but the learned judge found the defendant culpable when she held that “...now with the above chronology of events in mind, can the defendant again revert back to its earlier contention as regards estoppel and parole evidence rule after signing a Consent Order by which it agreed to refer the issue of overcharged interest to an expert for determination and to be bound by his final report? To my mind the answer is a clear NO for the same reason of estoppel relied upon to bar the plaintiff’s claim and I would add waiver as well.”

The above holding is very applicable to the instant matter  for the facts are similar and I would likewise state that the defendant cannot run away from the expert determination of the value of the building remaining for it to be completed for it did contract to supply a completed building inspite of it so-called being interfered with by the plaintiffs as I presumed that with its experience and expertise in the field there could not have arisen such interference from the plaintiffs had the defendant done its work based on its assumed expertees. I likewise would state that the defendant in this case just like that one in the Golf View case above waived its right to raise any other defence the moment they signed the consent appointing the expert and as the learned judge stated in the Golf View case above, “…for there to be waiver, the party alleged to have waived a right must have had both knowledge of the existing right and the intention of foregoing it”.

The subsequent conduct of signing the Consent Order in its terms stated and the steps taken by the parties to comply with that consent Order indicate that the defendant intended to waive its right in compliance with Section 26 (2) of the Judicature Act which provides that the report of an official or special referee may be adopted wholly or partly by the High Court and if so adopted may be enforced as a judgment or order of the High Court. I do adopt that report of the expert herein and would hold that since in the instant case the defendant waived its rights when it  accepted to submit the issue of the extra value of completing the building  to an expert for determination and agreeing to be bound by the final report the expert then it cannot  now assert any other right since that  right had been waived in the first instance.

And therefore my finding in respect of this issue is that when the parties signed the consent order and acted on it and thereafter  was filed in court by the said M/s Ridge Consulting Ltd,  none of the parties including the defendant could  then now opt out of it by stating that they were not  bound by the monetary values indicated in it for none had that consent reviewed and since as I have already concluded earlier that the general agreement between the parties was that of the delivery of a complete building by the defendant which was not done and the amount stated in the report is the value which is stated to make it possible to do so then the  defendant must be made pay the said amount.

I also find it as an afterthought for the Defendant raised the defence that the contract was entered into under a mistake of fact and sought to rely on a number of authorities to do so. With due respect, the defence of mistake was never pleaded in the first place and parties are bound to their pleadings. Additionally I find no iota of proof that there was mistake when I consider that the agreement was well considered by either party and the fact that the defendant was in a superior position of knowledge and expertees having entered into similar and other contracts of the similar nature before and did even voluntarily confirm that it had vast experience in the said field and so there could be no mistake when the contract herein was signed when those are taken into account and so the issue of mistake was not proved. This departure from pleadings is clearly prohibited and cannot be allowed for under Order 6 rule 3 of the Civil Procedure Rules it is provided that;

“In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default or undue influence, and in all other cases in which particulars may be necessary, the particulars with dates shall be stated in the pleadings”.

This substantive rule of procedure was emphasized in the case of Sietco v  Noble Builders (U) Ltd SCCA No. 31 of 1995, per Wambuzi CJ (as he then was) when he held that ;

“Pleadings will govern the scope of the case and deliberate (delineate) areas upon which evidence ought to be adduced. A departure from the pleadings during the giving of evidence would normally lead to the party departing being precluded from leading such evidence beyond his pleadings. See: Byrd v. Naun (1877) 7 CHD 287.

Guided by the above, I am of the view that the introduction of matters which were never pleaded at this very late stage of is one that is done to sabotage the process of trial where parties would exercise their rights sufficient to rebut or deny and I would not allow it. I do not also buy the defence argument that where the parties are equally at fault, then Defendant would take the advantage of such situation on the basis of  the Latin maxim of in pari delicto portior est condition defendentis for this principle only applies in cases where parties have entered into an illegal contract which is not the case in the instant matter for such a situation was considered by the Supreme Court in the case of  Active Automobile Spares Ltd v Crane Bank and Rajesh Prakesh; Supreme court Civil Appeal No. 21 of 2001 when it held that,

“…in the earlier case of Taylor vs. Chester (4) (1869) L.R.4 Q.B. 309 it was said at P.314, The true test for determining whether or not the plaintiff and the defendant were in pari delicto, is by considering whether the plaintiff could make out his case otherwise than through the medium and by aid of the illegal transaction.” In the present case, the appellant and the Bank were in pari delicto in the illegal transaction under consideration. The appellant cannot make out its case for refund of the US dollars 97,000/= without depending on the illegal transaction. In the circumstances the Court cannot order for the return of its money.”

With that in mind the Supreme Court refused to enforce an illegal contract against the respondent and no remedies were granted to any of the parties. Clearly, the instant case is one where  the parties entered into a valid sale agreement for land and a house and  none of the parties pleaded or led any evidence in regards to illegality and so it would be misleading to even consider the same here at all thus I would  disregard it completely.  On the basis of the above, it is  my considered view that it was the defendant who breached the contract it voluntarily entered into with the Plaintiffs and has it did not even file a counter claim to that effect it cannot argue that it is entitled to the costs of the extra works with the necessary conclusion to be had from this situation being that the defendant did breach the  self executing contract with the Plaintiff which finding I do make accordingly.

1. On Whether there were variations to the contract:

The parties entered into an agreement dated 5^th November 2005, Exhibit P1, they relied on architectural designs for the suit house and the parties acted on these documents. It is pertinent that the Defendant did not file a counter claim for the cost of the alleged variations. It is the Plaintiff’s case that once terms of the contract are reduced in writing they cannot be altered or amended save for another document like an addendum signed by both parties. This principal of law is founded in statute as the parole evidence rule which prohibits the one from adducing evidence orally or by witness statement that the contract was varied as that would contradict the written agreement on court record. Parole evidence rule is grounded in statute under Sections 91 and 92 of the Evidence Act [Cap. 6] which provide thus;

Section 91:

“When the terms of a Contract or of any other disposition of property, have been reduced to the form of a document…no evidence…shall be given in proof of the terms of that contract… except the document itself…” and;

Section 92:

• When the terms of any such contract …have been proved according to Section 91, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to or subtracting from its terms…”[1]  but any fact may be proved which would invalidate any document…such as fraud, intimidation, illegality, want of due execution, want of capacity…want or failure of consideration or mistake in fact or law”

From the evidence on record the that the Defendants has not proved that any variations of the terms of the contract occurred for the main dispute here is that the Defendant breached the contract when it failed to finish the Plaintiffs’ house despite full payment and so the Plaintiffs are entitled to the cost of incomplete works since they took over construction of their house at an additional cost. I find that the fact of the plaintiffs making variations is neither here or there for it was in the control of the defendant to ensure that all  the processes took place in accordance with agreed positions as there is no room to admit parole evidence here as no proof of any written agreement which made any variation was tendered in court for court to conclude that indeed variations took place. I therefore find that no variation took place on the basis of the evidence on record.

1.  Remedies are available to the parties:

My finding in the preceding issues above show that the defendant breached the contract with the Plaintiffs and is thus would be liable to pay damages to the to the plaintiffs to compensate them for all or any the losses suffered by them as a result of the said breach when proved. In this respect the plaintiffs prayed for an award against the defendant on the following heads;

1. Special Damages:

In her testimony the 2^nd Plaintiff testified that as a result of the Defendant’s breach of the contract with them, they had to mitigate their loss by taking over the building of house and thus used own additional money to complete the same with the attendant inflation to costs of building materials, labour and even having to travel to and from the United Kingdom and with added mental anguish. To this effect, the plaintiffs particularized that a sum of Ug. Shs. 182,863,687/=  would suffice as being special damages this even being the being the cost of incomplete works that they had to incur found even in the report of the surveyor appointed by consent of both parties which consent has not be set aside or varied and so I would be convinced to consider that this would do in the circumstances as proven special damages for such a report is of evidential value as was found in the case of  Andreas Wipfler T/A Wipfler Designers & Co. v Meera Investments Ltd, HCCS No. 28 of 2005 where  Egonda-Ntende, J ( as he then was ) entered judgment in a sum contained in an expert’s report when he held thus;

“The parties agreed to be bound by the report of the expert. In substance the parties appointed an arbitrator between them. In Alternative Dispute Resolution arbitration is the process where a third party agreed between the parties’ issues a binding award. The report before the court has established the total value of the works done by the plaintiff to be shs.1, 015,213,000.00. It has found that the defendant paid to the plaintiff shs.842, 442,707.00. It has determined that the amount due to the plaintiff is shs.172, 770,293.00. Applying the inherent jurisdiction of this court, I uphold the agreement the parties made before this court to be bound by the report of the expert that they jointly appointed. As the expert has found in his report that the sum of shs.172,770,293.00 is due to the plaintiff from the defendant, I enter judgment for the plaintiff in that sum with costs of the suit.”

This authority is a good one and is convincing in the main and I would associate myself with its finding for in the instant matter there is indeed a consent order which the parties did also bind themselves to a report of an expert and that being so judgment would be entered in the favour of the Plaintiffs against the Defendant for the sum of Ug. Shs. 182,863,687/= as special damages.

1. Interest:

This matter has been in this court since 2009 and since 1^st March 2011 when the expert report was made this court up to now, it is clear to me that the Plaintiffs have been deprived of their money from which they deserve interest to for according to the decision in the case of J.K Patel v Spear Motors Ltd SCCA No. 4 of 1991 the Supreme Court pointed out that the time when the amount claimed was due is the date from which interest should be awarded. The amount due as special damages in the instant matter arose from the 1^st March 2011 when the expert report was received in court and so I would thus compute interest on the special damages from that date in the favour of the Plaintiffs at the rate of 18% per annum until payment in full.

1. General Damages:

General damages are awarded where there is a breach of contract. The general rule principle behind an award of general damages is that of Restitutio integrum that is to try in as much as possible to place an injured party in as good a position in money terms as he would have been had the wrong complained of not occurred. An award for General Damages is at the discretion of the court with the duty of the plaintiff  to show that the loss and inconvenience it has suffered was as a result of the defendant’ s breach of a statutory duty.  In the case of Uganda Commercial Bank v Kigozi [2002]1 EA.305 it was held that a plaintiff who suffers damage due to the wrongful act of a defendant must be put in the position he or she would have been in had she or he not suffered wrong.  In the instant matter the Plaintiffs have shown that as a result of the acts of the defendant they had suffered substantially in that they had to  travel numerous times from the United Kingdom to try and complete their house coupled and had to contend with this court case with the whole transaction being on their mind for nearly ten (10) years yet the Defendant did not care an iota of their situation which it even made worse by mortgaging of their house without their consent for which it obtained funds from both Tropical Bank Ltd and National Bank of Commerce which was to its benefit exclusively leaving the  Plaintiffs to use court action even to obtain the certificate of title for their property which to date is not even yet in their names for the Defendant refused to transfer it so. In my view, I would consider this to be blatant exploitation by the defendant and I do condemn that kind of behavior for which the defendant would be made to pay the sum of Ug. Shs. 60,000,000/= as general damages.

1. Transfer of Title:

The evidence show that the Plaintiffs paid the full purchase price of the house and the land comprised in Busiro Block 395, Plot 519  but is yet to get the  transfer instrument from the Defendant. The plaintiffs have already made the necessary application in that respect as can be seen from Exhibit. P.12 and did in fact pay the sum of Ug. Shs. 319,000/= in that respect but it appears the Defendant misappropriated this money or put it to other uses and has to date refused to issue the Plaintiffs with any such transfer.  In respect, I do exercise the Court’s inherent powers to direct the Commissioner for Land Registration to transfer the suit land into the Plaintiff’s names and to cancel the Defendant’s name accordingly forthwith.

1. Costs:

The general rule is that costs should follow the event and a successful party should not be deprived from them except for good cause S.27 (2) Civil Procedure Act (Cap 71).   Though an award of costs is at the discretion of court, my view is that the plaintiffs in this matter suffered uncalled for  costs for which they must be reimbursed accordingly noting that they are the successful party in this matter in any event.

1. Orders:

1. Judgment is entered in favour of the Plaintiffs as against the Defendant for the sum of Ug. Shs. 182,863,687/= as special damages.
2. I order interest on the special damages from that date of 1^st day of March, 2011 at the rate of 18% per annum until payment in full.
3. I order the defendant to pay the sum of Ug. Shs. 60,000,000/= as general damages with interest at the court rate of 6% per annum from the date of this judgment till payment in full.
4.  I direct the Commissioner for Land Registration to transfer the suit land into the Plaintiff’s names forthwith and to cancel the Defendant’s name therein accordingly.
5. The Plaintiffs in this matter suffered uncalled for costs for which the defendant must reimburse them accordingly in any event.

Henry Peter Adonyo

Judge

10^th March, 2015