Wakilii

Gusko v Tugume and Another (Civil Suit 469 of 2016)

High Court · [2023] UGHCLD 230 · 2023 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for specific performance, removal of caveat, permanent injunction, and damages for breach of contract, fraud and misrepresentation
Decision
Plaintiff declared owner of Plot 11558 measuring approximately 61.8 decimals; 2nd defendant's caveat vacated; plaintiff to give up 1.7 decimals of encroachment on adjacent plot

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that despite an error in the written sale agreement (stating 0.577 decimals instead of 0.577 acres), the court found consensus ad idem between the parties to sell 57.7 decimals based on extrinsic evidence including email correspondence, bank communications, prior survey, mutation forms signed by the 1st defendant, and an independent court-ordered survey. The court ordered registration of the plaintiff as owner of Plot 11558 measuring 57.7 decimals plus 4 decimals of access road, removal of the 2nd defendant's caveat, and awarded damages of UGX 50,000,000 to the plaintiff. The 1st defendant was estopped from denying the true intention of the parties after having actively participated in the survey, subdivision, and signing of transfer instruments.

Outcome

Plaintiff declared owner of Plot 11558 measuring approximately 61.8 decimals; 2nd defendant's caveat vacated; plaintiff to give up 1.7 decimals of encroachment on adjacent plot

Facts

The plaintiff agreed to purchase part of Kyaddondo Block 185 Plot 4972 from the 1st defendant on 31 March 2016 for UGX 702,000,000. The sale agreement stated the area as 0.577 decimals, which both parties now agree was an error. The plaintiff claimed she purchased 0.577 acres (57.7 decimals) while the defendants contended only 27.7 decimals were sold. Prior to signing the agreement, a survey was conducted with the 1st defendant's participation identifying boundaries. The 1st defendant wrote to the mortgagee bank on 30 March 2016 stating the plaintiff was purchasing 57 decimals. The plaintiff paid the full consideration, settled the mortgage, and took possession. The 1st defendant signed mutation forms on 5 April 2016 showing subdivision into Plot 11558 (0.250 hectares) and Plot 11559 (residue). The plaintiff was informed of a caveat by one Apollo Karugaba and paid UGX 50,000,000 to settle his claim. The 2nd defendant, who was not party to the contract, lodged a caveat on 22 June 2016 claiming undisclosed equitable interest in the undeveloped portion. An independent court-ordered survey confirmed the plaintiff occupied approximately 61.7 decimals including a 1.7 decimal encroachment on the adjacent plot.

Issues

  1. Whether the plaint discloses a cause of action against the defendants and whether it is frivolous and vexatious.
  2. Whether the transaction between the plaintiff and the 1st defendant is valid.
  3. Whether the plaintiff purchased part of the property comprised in Kyaddondo Block 185 Plot 4972 land at Namugongo and if so, what size of the property had been purchased.
  4. Whether any of the parties breached the terms of the sale and purchase agreement.
  5. Whether the plaintiff is entitled to an order for the release of the caveat by the 2nd defendant on the suit land.
  6. Whether the 1st defendant is liable for misrepresentation, fraud and economic loss to the plaintiff.
  7. What are the possible remedies available to the parties.

Orders

  • The plaintiff is entitled to be registered as owner of Plot 11558 measuring 57.7 decimals (0.577 acres) which she duly purchased from the 1st defendant.
  • The 4 decimals (access road) are to be added to the land purchased by the plaintiff, which in total adds up to approximately 61.8 decimals as per the surveyor's report.
  • Plot 11558 is to be resurveyed to reflect its correct dimensions, at the cost of the plaintiff.
  • The plaintiff shall immediately give vacant possession of the area of 1.7 decimals identified as area of encroachment on Plot 11559 which is covered by part of the garden, perimeter wall and part of the water tank belonging to her.
  • The caveat lodged by the 2nd defendant on Plot 4972 is to be immediately vacated.
  • The plaintiff is entitled to a compound figure of damages of UGX 50,000,000 (Uganda Shillings fifty million) which shall include expenses incurred by her for the journeys undertaken to attend court and follow up her case for six years.
  • Interest of 15% per annum payable in respect of order 6 above, from date of delivering the judgment till payment is made in full.
  • The counterclaim is accordingly dismissed with costs.

Rules and key headnotes

Validity of Contract — Mistake in Written Terms — Extrinsic Evidence
Where a sale agreement contains an obvious error in measurements, the court may consider extrinsic evidence including prior survey, email correspondence, bank communications, and conduct of the parties to objectively establish the true intention of the contracting parties and determine what was actually agreed.
Consensus ad Idem — Part Performance — Enforceability
A contract may be enforceable in equity on grounds of part performance where one party has fully paid consideration, the other has accepted payment and delivered possession, transfer instruments have been signed, and both parties have derived benefit, notwithstanding an initial absence of consensus ad idem on one term which is later clarified through extrinsic evidence.
Parol Evidence Rule — Exceptions — Patent Error
The parol evidence rule does not preclude a court from considering evidence outside a written contract where the parties acknowledge the contract contains a patent error and extrinsic evidence is necessary to understand the true intention of both parties and identify the actual terms with certainty.
Estoppel by Conduct — Transfer Instruments — Survey Participation
A party who actively participates in a survey, directs the surveyor on the boundaries, supervises the subdivision process, signs mutation forms confirming the measurements, and communicates those measurements to third parties including the mortgagee bank is estopped from later denying the correctness of those measurements after accepting full payment and benefit under the transaction.
Caveat — Unregistered Interest — Bad Faith Lodgment
A caveat lodged by a party who was not party to a sale agreement, who claims undisclosed equitable interest but produces no documentary proof or evidence of physical possession, and who lodges the caveat only after the purchaser has fulfilled all obligations and entered into possession, constitutes an act intended to defeat the purchaser's legitimate interest and must be vacated.
Breach of Contract — Non-Disclosure of Encumbrances — Misrepresentation
Where a vendor warrants in a sale agreement that property is free of encumbrances save for a disclosed mortgage and caveat, but fails to disclose the interest of a third party who later lodges a caveat, the vendor's conduct constitutes misrepresentation and breach of contract entitling the purchaser to damages and removal of the caveat.

Legislation cited (12)

Cases cited (15)

  • Wabuye v Kazoora (Civil Suit No. 181 of 2019)
  • Tororo Cement Ltd v Frokina International Ltd (Supreme Court Civil Appeal No. 2 of 2001)
  • Cotthar vs Attorney General for Kenya [1933] AC P.181
  • Castelino v Rodrigues (1972) E.A.223 (CA)
  • Green Beat Entertainment Ltd v City Council of Kampala (High Court Civil Suit No. 580 of 2003)
  • Olanga v Aculu (Civil Appeal No. 38 of 2016)
  • Ndawula v Mutabazi (Civil Appeal No. 43 of 2020)
  • Musoke Kitenda v Roko Construction Ltd (Miscellaneous Civil Application No. 1240 of 2020)
  • Face Technology Pty Ltd v Attorney General and Another (Civil Suit No. 248 of 2008)
  • Pan African Insurance Company Uganda Ltd v International Air Transport Association (High Court Civil Suit No. 661 of 2003)
  • Steel Makers Ltd v AB Steel Products (High Court Civil Suit No. 424 of 2003)
  • Frederick J.K Zaabwe v Orient Bank and 5 Others (Civil Appeal No. 4 of 2006)
  • AZK Services Ltd v Crane Bank (Civil Suit No. 334 of 2016)
  • Cargo World Logistics Ltd v Royal Group Africa Ltd (Civil Suit No. 157 of 2013)
  • Ronald Kasibante v Shell (U) Ltd (High Court Civil Suit No. 542 of 2006)

Full judgment

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

Gusko_v_Tugume_and_Another_(Civil_Suit_469_of_2016)_[2023]_UGHCLD_230_(4_August_2023)
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.