Wakilii

Enos Johns v Allan Shem Kirumira (HCT-00-CV-CS-0057-2008) (HCT-00-CV-CS-0057-2008)

High Court · [2009] UGHC 134 · 2009 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for recovery of money had and received
Decision
Plaintiff recovered UGX 100,000,000 from the defendant as money had and received, with interest and costs

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Holding

Where a plaintiff paid money to a defendant land consultant to purchase land, and the defendant paid the money to an alleged vendor without allowing the plaintiff's representative to see the vendor or verify the transaction, and the land turned out not to have been validly transferred, the plaintiff is entitled to recover the money as money had and received. The defendant's conduct in concluding the transaction to the exclusion of the plaintiff's representative, and his failure to exercise the standard of care expected of a reasonably competent lawyer, rendered him liable for the sum advanced. Consideration wholly failed when the transaction proved fraudulent or ineffective.

Outcome

Plaintiff recovered UGX 100,000,000 from the defendant as money had and received, with interest and costs

Facts

The plaintiff, resident in the United Kingdom, sought to purchase land in Uganda. Through his father, Sezi Kigozi Gwayambadde, he engaged the defendant, a land consultant and non-practicing lawyer, to assist. UGX 135,000,000 was wired to the defendant's bank account for the purchase. The defendant claimed to have concluded a sale agreement with one Alex Rusita and paid out UGX 100,000,000, but did so in the absence of the plaintiff's father and without allowing him to meet the vendor as agreed. When the plaintiff's representative attempted to take possession of the land, it emerged that the purported vendor was not the owner. Police recovered UGX 35,000,000 from the defendant's account. The plaintiff sued to recover the balance as money had and received.

Issues

  1. Whether the defendant is indebted to the plaintiff as claimed.
  2. What reliefs, if any, should be granted.

Orders

  • Judgment entered for the plaintiff.
  • Defendant to pay UGX 100,000,000 to the plaintiff.
  • Interest on the decretal sum awarded at court rate from the date of filing the suit till payment in full.
  • Costs of the suit awarded to the plaintiff.

Rules and key headnotes

Money Had and Received — Quasi-Contract — Total Failure of Consideration
Money which is paid by one person to another on a consideration which has wholly failed is recoverable as money had and received. The payment creates a quasi-contract rooted in an implied promise to repay. It is applicable where the defendant has received money which in justice and equity belongs to the plaintiff under circumstances which render the receipt of it by the defendant a receipt to the use of the plaintiff.
Professional Negligence — Duty of Care — Land Consultants and Lawyers
The standard of care expected of a lawyer or land consultant is that of a reasonably competent and diligent practitioner. A lawyer who releases a substantial sum in cash to an unknown person without verification, in the absence of witnesses, and contrary to the client's express instructions to be present during payment, is guilty of gross negligence. Such conduct falls below the standard of an ordinary competent lawyer and renders the lawyer liable for the loss.
Parol Evidence Rule — Written Contracts — Exclusion of Extrinsic Evidence
Where a contract has been reduced to writing, evidence cannot be admitted to add to, vary, or contradict the written instrument. A party cannot rely on evidence of terms alleged to have been agreed which are extrinsic to the document. Where a sale agreement states that the full purchase price has been paid, a party cannot adduce oral evidence that only part was paid and part retained pending further conditions.
Pleadings — Amendment — Issues Framed for Determination
A party is bound to prove the case as alleged in the pleadings and as covered in the issues framed for determination. A party will not be allowed at trial to change his case or set up a case inconsistent with what he alleged in his pleadings except by way of amendment of the pleadings. Issues not raised in the pleadings or framed for determination cannot be determined at trial.
Caveat Emptor — Vendor's Duty of Disclosure — Fraudulent Misrepresentation
In the ordinary case of a sale of real estate, a purchaser has to go to the vendor for information but, bearing in mind the principle of caveat emptor, is bound to make proper inquiries. When a purchaser seeks information from the vendor, the vendor is bound to supply accurate information. If the vendor makes a representation knowingly or recklessly without caring whether it is true or false, the purchaser has a remedy in damages and may be entitled to be relieved from the contract.

Legislation cited (1)

  • Civil Procedure Rules O.17 r.4

Cases cited (4)

  • Interfreight Forwarders (U) Ltd v East African Development Bank [1994-95] HCB 54
  • Terrene Ltd v Nelson [1937] 3 All ER 739
  • Dr James Kashugyera Tumwine and Another v Sr Willie Magara and Another (High Court Civil Suit No. 576 of 2004)
  • The Insurance Company of North America v Baerlein and James [1960] EA 993

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Enos Johns v Allan Shem Kirumira (HCT-00-CV-CS-0057-2008) (HCT-00-CV-CS-0057-2008) [2009] UGHC 134 (12 October 2009)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.