Wakilii

Mbooli v Nabawanuka and Another (Civil Suit 1753 of 2000)

High Court · [2023] UGHCLD 126 · 2023 Counterclaim Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Counterclaim proceeding ex parte after counter defendants failed to appear despite service
Decision
Counterclaim succeeded in part. Counterclaimant awarded refund of purchase price and compensation. Specific performance denied as impracticable.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that the original sale agreement was varied by conduct when the vendor accepted partial payment and granted possession before full payment. Property in the land passed to the purchaser upon deposit payment. The vendor therefore had no valid title to transfer to a third party. However, specific performance was impracticable as execution had already occurred and the property had passed to the 2nd counter defendant by the time the counterclaim was filed. The counterclaimant was entitled to a refund of purchase monies paid and compensation for damages.

Outcome

Counterclaim succeeded in part. Counterclaimant awarded refund of purchase price and compensation. Specific performance denied as impracticable.

Facts

In January 1996, the counterclaimant entered into an agreement to purchase land at Mukono for UGX 40,000,000. He paid UGX 20,000,000 initially and UGX 14,000,000 in April 1996, leaving a balance of UGX 6,000,000. The vendor granted him possession of the property in July 1996 before full payment. The counterclaimant occupied the property until May 2007 when he was evicted by court bailiffs. In November 2006, the 1st counter defendant had sold and transferred the property to the 2nd counter defendant. The counterclaimant alleged fraud and sought specific performance, refund, and damages. The counter defendants did not appear at trial despite proper service.

Issues

  1. Whether the counter claimant is entitled to the suit property.
  2. Whether the 1st counter defendant lawfully sold the suit property to the 2nd counter defendant.
  3. Whether there was fraud attributable to the counter defendants.

Orders

  • The 1st counter defendant shall refund to the counterclaimant UGX 34,000,000 being the money paid as purchase price for the suit property comprised in LRV 1846 Folio 20, Kgaggwe Block 793, plot 350, land at Mukono.
  • The 1st counter defendant shall pay a sum of UGX 30,000,000 as a compound sum for compensation and damages to the counterclaimant, payable with interest of 15% from the date of eviction until the date of delivery of this judgment.
  • Costs of the counterclaim awarded to the counterclaimant.

Rules and key headnotes

Contract Law — Variation of Contracts — Oral Variation and Variation by Conduct
An oral variation or variation by conduct of a written contract is effective where the evidence establishes on the balance of probabilities that the variation was agreed, unless the law or the contract itself provides otherwise.
Contract Law — Sale of Land — Passing of Property Before Full Payment
Where a vendor accepts partial payment and grants possession to a purchaser before full payment of the purchase price, property in the land passes to the purchaser, and the vendor becomes a trustee holding a lien for the unpaid balance.
Land & Property — Transfer of Title — Nemo Dat Quod Non Habet
A vendor who has granted possession and received substantial payment under a varied contract of sale holds the land as trustee and cannot pass valid title to a third party, as one cannot give a better title than one possesses.
Land & Property — Fraud — Failure to Make Reasonable Inquiries
A purchaser's failure to make reasonable inquiries of persons in physical possession and use of land constitutes fraud by necessary implication, and the purchaser acquires the land subject to its equities.
Contract Law — Specific Performance — Impracticability
An order for specific performance will not be granted where execution has already been completed and the property has lawfully passed to a third party, as courts do not issue orders in vain.

Legislation cited (1)

Cases cited (11)

  • Makubuga Enock Willy v Songdoh Films & Another (Civil Suit No. 349 of 2017)
  • Globe Motors Inc. & others v TRW Lucas Varity Electric Steering Limited & another 2016 EWCA Civ 396
  • Sharif Osman v Haffi Haruna Mulanguta (Supreme Court Civil Appeal No. 38 of 1995)
  • Phillips vs. Silvester (1872) 8 Cha. A. 173
  • Halling Manzoor v Serutan Singh Baram (Supreme Court Civil Appeal No. 9 of 2001)
  • Florence Namuli Matovu v Hellen Ogeru (Court of Appeal Civil Appeal No. 15 of 2006)
  • Farm International Ltd and Ahmad Farah vs Mohamed El Fith [1994] KARL 302
  • Kampala Bottlers v Damanico (U) Ltd (Supreme Court Civil Appeal No. 27 of 2012)
  • Taylor vs. Stilbert [1803-13] ALLDR 432
  • Uganda Posts & Telecommunication V. Abraham Katumba
  • Uganda Commercial Bank Vs Kigozi (2002) 1 EA 305

Full judgment

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

Mbooli_v_Nabawanuka_and_Another_(Civil_Suit_1753_of_2000)_[2023]_UGHCLD_126_(9_May_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.