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
1: Judgment in regards to breach of contract for the sale of land: Per Hon. Justice Henry Peter Adonyo:
March 2015
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 7th 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 4th 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

2: Judgment in regards to breach of contract for the sale of land: Per Hon. Justice Henry Peter Adonyo:
March 2015
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.

2. Background:

By an agreement dated 5th 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

3: Judgment in regards to breach of contract for the sale of land: Per Hon. Justice Henry Peter Adonyo:
March 2015
Order dated 27th 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 6th December 2010 in the presence of both parties. On the

1st 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 27th 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

4: Judgment in regards to breach of contract for the sale of land: Per Hon. Justice Henry Peter Adonyo:
March 2015
presented to the 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.

3. Agreed Issues:

a) Whether there was a breach by either party?

b) Whether there were variations to the contract?

c) Whether the parties are entitled to the remedies prayed for?

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

4. 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

5: Judgment in regards to breach of contract for the sale of land: Per Hon. Justice Henry Peter Adonyo:
March 2015
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 5th 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 [28th 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

6: Judgment in regards to breach of contract for the sale of land: Per Hon. Justice Henry Peter Adonyo:
March 2015
 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

7: Judgment in regards to breach of contract for the sale of land: Per Hon. Justice Henry Peter Adonyo:
March 2015
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 2nd 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,

8: Judgment in regards to breach of contract for the sale of land: Per Hon. Justice Henry Peter Adonyo:
March 2015
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

9: Judgment in regards to breach of contract for the sale of land: Per Hon. Justice Henry Peter Adonyo:
March 2015
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

10: Judgment in regards to breach of contract for the sale of land: Per Hon. Justice Henry Peter
Adonyo: March 2015
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 5th 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

11: Judgment in regards to breach of contract for the sale of land: Per Hon. Justice Henry Peter
Adonyo: March 2015
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 5th 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

12: Judgment in regards to breach of contract for the sale of land: Per Hon. Justice Henry Peter
Adonyo: March 2015
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

13: Judgment in regards to breach of contract for the sale of land: Per Hon. Justice Henry Peter
Adonyo: March 2015
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

14: Judgment in regards to breach of contract for the sale of land: Per Hon. Justice Henry Peter
Adonyo: March 2015
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

15: Judgment in regards to breach of contract for the sale of land: Per Hon. Justice Henry Peter
Adonyo: March 2015
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

16: Judgment in regards to breach of contract for the sale of land: Per Hon. Justice Henry Peter
Adonyo: March 2015
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

17: Judgment in regards to breach of contract for the sale of land: Per Hon. Justice Henry Peter
Adonyo: March 2015
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

18: Judgment in regards to breach of contract for the sale of land: Per Hon. Justice Henry Peter
Adonyo: March 2015
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

19: Judgment in regards to breach of contract for the sale of land: Per Hon. Justice Henry Peter
Adonyo: March 2015
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.

5. On Whether there were variations to the contract:

The parties entered into an agreement dated 5th 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

20: Judgment in regards to breach of contract for the sale of land: Per Hon. Justice Henry Peter
Adonyo: March 2015
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
1

21: Judgment in regards to breach of contract for the sale of land: Per Hon. Justice Henry Peter
Adonyo: March 2015
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.

6. 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;

a. Special Damages:

In her testimony the 2nd 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

22: Judgment in regards to breach of contract for the sale of land: Per Hon. Justice Henry Peter
Adonyo: March 2015
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

23: Judgment in regards to breach of contract for the sale of land: Per Hon. Justice Henry Peter
Adonyo: March 2015
 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.

b. 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 1st 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.

c. General Damages:

24: Judgment in regards to breach of contract for the sale of land: Per Hon. Justice Henry Peter
Adonyo: March 2015
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

25: Judgment in regards to breach of contract for the sale of land: Per Hon. Justice Henry Peter
Adonyo: March 2015
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.

d. 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.

e. 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.

26: Judgment in regards to breach of contract for the sale of land: Per Hon. Justice Henry Peter
Adonyo: March 2015
 7. Orders:
a. Judgment is entered in favour of the Plaintiffs as against the Defendant for
the sum of Ug. Shs. 182,863,687/= as special damages.
b. 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.
c. 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.

d. 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.

e. The Plaintiffs in this matter suffered uncalled for costs for which the
defendant must reimburse them accordingly in any event.

Henry Peter Adonyo

Judge

10th March, 2015

27: Judgment in regards to breach of contract for the sale of land: Per Hon. Justice Henry Peter
Adonyo: March 2015