THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(LAND DIVISION)

CIVIL SUIT NO. 628 OF 2003

LUMWAMA MUSASIZI ........................................................................... PLAINTIFF

VERSUS

SALIM ALI KITEREERA GOLOOBA

& 2 OTHERS ……………….………………......................................................DEFENDANTS

Case Summary

On 2^nd February 2002 the plaintiff purportedly bought 10 acres of land from a 400 acre tract of land described as Block 395 plots 3, 4 and 5 at Sekiwunga, Kakungulu Estate from the first defendant.  At the time of the alleged purchase of the suit land by the plaintiff, the said land was part of the 400 acre tract of land that had previously been sold to the second defendant on the 17^th November 2001.  The said land had been sold to the second defendant by the third defendant, the administrator of the estate of a one Soseni Kakungulu Ssalongo (deceased).  The second defendant thus became the registered proprietor of the entire tract of land described as Block 395 plots 3, 4 and 5 at Sekiwunga, Kakungulu Estate despite the purported sale of the suit land to the plaintiff.  The first defendant admitted the plaintiff’s claims over the suit property and averred that his willingness to transfer the said land to the plaintiff was frustrated by its transfer to the second defendant by the third defendant in total disregard of the wishes of the beneficiaries of the deceased’s estate. Conversely, it was the second defendant’s case that the land purportedly purchased by the plaintiff had been sold to it long before 2^nd February 2002.  The second defendant further contended that the first defendant did revoke any negotiations he had undertaken with the plaintiff; at the time of his purported purchase the second defendant’s lawyers – M/s Alenyo & Co. Advocates – should have put the plaintiff on notice that the suit land had already been sold, and consequently the plaintiff had no locus to institute the present proceedings either as a bonafide purchaser for value or otherwise.  In the same vein, the third defendant maintained that, having sold his portion of land in the deceased’s estate to the second defendant, the first defendant was no longer possessed of any proprietary interest in the suit land by the time he purported to sale the same to the plaintiff. 

Civil Procedure - judgment on admission - order 16 rule 6 CPR- whether judgment on admission can be entered where there is no application by any party.

Evidence- reference to a document in an annexture- effect thereof.

Order 13 rule 6 of the CPR.  The rule reads:

“Any party may at any stage of the suit, where an admission of facts has been made, either on the pleadings or otherwise, apply to the court for such judgment or order as upon the admission he or she may be entitled to, without waiting for the determination of any other question between the parties; and the court may upon the application make such order, or give such judgment, as the court may think just.”

Issues

1. Whether the 1^st defendant passed good title to the plaintiff in the 10 acres.
2. Whether the 2^nd defendant’s title can be impeached with regard to the 10 acres.
3. Whether the 3^rd defendant was right to dispose of all the property before curving off the plaintiff’s interest.
4. Whether the plaintiff is entitled to the remedies sought

Held

1. It is, therefore, not true that the 1^st defendant had no knowledge of the said transaction, as pleaded in paragraph 5 of his written statement of defence.  On the contrary, having endorsed the sale agreement and thus agreed to the sale of the land from which his piece emanated, the 1^st defendant had relinquished all claim to the suit property and was left with no residual interest therein as could have been sold to the plaintiff.
2. Consequently, the 1^st defendant could not have passed good title to the plaintiff when he was devoid of any interest in the suit property at the time of the purported sale to the latter.
3. Nonetheless, a judgment on admission under Order 13 rule 6 is premised on an application therefore by any of the parties.  That appears to be the thrust of that legal provision.  No such application has been seen by this court in the record of proceedings of Opio Aweli J; neither is there any order or judgment emanating from such application.
4. The 1^st defendant misrepresented himself to the plaintiff as having legal title to the suit property, whereas not.  He thus unjustly enriched himself in the sum of Ushs. 20,000,000/= that was paid to him as purported purchase price. The said misrepresentation would render the sale agreement between the plaintiff and 1^st defendant voidable, but the plaintiff does have a remedy against the 1^st defendant in restitution. .
5.  It is trite law that reference in a document to an annexure incorporates the contents of the annexure into the document.  See Castelino v. Rodrigues 1(1972) E.A.223 (CA).  Similarly, reference in pleadings to an annexure would incorporate the contents of the annexure into the pleadings. 

Judgment was entered for the plaintiff against the first defendant in the following terms

1. The 1^st defendant was ordered to compensate the plaintiff in the sum of Ushs. 20,000,000/= being the purchase price paid for the suit property.
2. General damages in the sums of Ushs. 20,000,000/= were awarded to the plaintiff as against the 1^st defendant, payable at 8% interest per annum from the date hereof until payment in full.
3. The plaintiff was awarded half the costs of this suit.