Wakilii

Nsubuga & Sons Properties Ltd v Norah M.K. Kyobe (Civil Suit No. 718 of 2013)

High Court · [2017] UGCOMMC 290 · 2017 Judgment for Defendant; Counterclaim Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for breach of contract and recovery of commission fees
Decision
Plaintiff's suit dismissed with costs; defendant's counterclaim allowed and monetary awards granted

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that no valid agency relationship existed between the late Wilson Kyobe and his daughter Sarah Kyobe who signed a commission agency agreement on his behalf without authority. The agreement was void ab initio and unenforceable against the estate. The plaintiff's claim for unpaid commission was dismissed. The defendant's counterclaim for unpaid rental arrears under an earlier valid Hospitality Agreement signed by the deceased himself succeeded, and the court awarded UGX 71,200,000 in rental arrears plus UGX 20,000,000 in general damages.

Outcome

Plaintiff's suit dismissed with costs; defendant's counterclaim allowed and monetary awards granted

Facts

The plaintiff company entered into a Hospitality Agreement with the late Wilson Kyobe in April 2009 to rent land for a storage yard at an agreed monthly rent. The plaintiff allegedly fell into rental arrears. In 2012, the plaintiff introduced a new tenant, Graben 4PL Ltd, to occupy another portion of the land. A tripartite Memorandum of Understanding was executed on 10 February 2012 purportedly between Wilson Kyobe, the plaintiff, and Graben 4PL, under which the plaintiff was to receive commission of UGX 2,000,000 monthly for 10 years. It emerged at trial that Wilson Kyobe never signed this agreement — his daughter Sarah Kyobe signed it without his authority, believing she was helping secure funds for her father's medical treatment. Wilson Kyobe died in April 2013. His estate, represented by his widow Norah Kyobe as administrator, terminated the commission agency in April 2013 and claimed unpaid rental arrears from the earlier Hospitality Agreement.

Issues

  1. Whether there was a contractual relationship between the plaintiff and defendant.
  2. Whether the contractual relationship was terminated, and if so, whether rightly or not.
  3. Whether the defendant is entitled to the counterclaim.
  4. Whether the plaintiff is entitled to the remedies sought.

Orders

  • Plaintiff's suit dismissed in its entirety.
  • Defendant's counterclaim upheld.
  • Defendant awarded UGX 71,200,000 being outstanding rental dues.
  • Defendant awarded UGX 20,000,000 in general damages.
  • Interest awarded at court rate of 6% on the above sums from date of judgment until payment in full.
  • Costs of the suit awarded to the defendant/counter-plaintiff.

Rules and key headnotes

Contract Law — Agency — Creation of Agency — Authority
For an agency relationship to be validly created, there must be express or implied authority from the principal to the agent to act on the principal's behalf, or ratification of the agent's acts by the principal.
Contract Law — Agency — Agency by Necessity — Existing Contractual Relationship Required
The doctrine of agency by necessity applies only where there is already some existing contractual relationship between the principal and the person acting on his or her behalf, and does not extend to a mere parent-child biological relationship absent a contractual nexus.
Contract Law — Formation of Contract — Free Consent
Under Section 10 of the Contracts Act 2010, for a contractual obligation to arise, parties must freely consent to the creation of that obligation. An agreement purportedly made on behalf of a party without that party's consent or authority is void and unenforceable.
Contract Law — Void Contracts — Non Est Factum
Where a contract is signed by a person impersonating another without authority, the defence of non est factum applies and the purported contract cannot bind the person whose name was signed.
Evidence — Burden of Proof — Counterclaim for Debt
Where a defendant counterclaims for unpaid debt and adduces payment records and written acknowledgements of debt by the plaintiff, the burden shifts to the plaintiff under Section 102 of the Evidence Act to prove payment; in the absence of receipts or credible contrary evidence, the defendant's claim succeeds.
Contract Law — Damages — General Damages for Breach of Contract
General damages for breach of contract are at large and awarded at the discretion of the court after due assessment to compensate the injured party for loss suffered as a result of the breach, measured by what would have been likely to happen had the party not entered into the contract.

Legislation cited (11)

  • Contract Act 2010 s.10
  • Contract Act 2010 s.118
  • Contract Act 2010 s.121
  • Contract Act 2010 s.122
  • Contract Act 2010 s.124
  • Evidence Act Cap.6 s.55(1)
  • Evidence Act Cap.6 s.59
  • Evidence Act Cap.6 s.101
  • Evidence Act Cap.6 s.102
  • Evidence Act Cap.6 s.103
  • Judicature Act Cap.13 s.1.4

Cases cited (31)

  • Jebara v Ottoman Bank [1927] 2 KB 254
  • Doshi Hardware (U) Ltd v ALAM Construction Ltd (HCCS No. 425 of 2003)
  • Wilson v Tumman (1843) 5 Man & G 236
  • Cornwal v Wilson (1750) 1 Ves Sen 509
  • Re Mawcon Ltd [1959] 1 WLR 78
  • Kasibante v Shell Uganda Ltd (CS No. 542 of 2006)
  • Masiranyi & Others v Blue Shield Insurance Co Ltd (2005) 1 EA 280
  • Tajar v Uganda (EACA No. 161 of 1967)
  • Onno v Difasi & 5 Others (HCCA No. 25 of 2013)
  • Tinyefunza v Attorney General (Constitutional Appeal No. 1 of 1997)
  • Stroms v Hutchinson [1905] AC 515
  • Uganda Revenue Authority v Kitamirike (Civil Appeal No. 43 of 2010)
  • Ushitlingi v Kampala Pharmaceutical Ltd (SCCA No. 5 of 1999)
  • Southern Highlands Tobacco Union Ltd v Mcqueen (1950) EA 490
  • Obongo & Another v Municipal Council of Kisumu [1971] EA 91
  • Ongom & Another v Attorney General [1979] HCB 267
  • Kyambadde v Mpigi District Administration [1983] HCB 44
  • Buturo v Munansi Newspaper [1982] HCB 134
  • Kengrow Industries Ltd v Chandran (SCCA No. 1 of 2001)
  • Bholm v Car & General Ltd (SCCA No. 12 of 2003)
  • Bank of Uganda v Masaba & Others [1999] 1 EA 2
  • Uganda Telecom v Tanzanite Corporation [2005] EA 351
  • Bank of Uganda v Tinkamanyire (SCCA No. 14 of 2007)
  • Premchandra Shenoi & Anor v. Maximov Oleg Petrovich
  • BM Technical Services Ltd v Crescent Transporters Co Ltd (SCCA No. 8 of 2002)
  • Power and City Contractors Ltd v LTL Project (Pvt) Ltd (Misc Application No. HCT-09-CV-MA-0062 of 2011)
  • Were v Kaga Ltd (HCCS No. 530 of 2004)
  • Makula International Ltd v Cardinal Nsubuga & Another (1982) HCB 11
  • Mutekanga v Equator Growers (U) Ltd (SCCA No. 7 of 1995)
  • Radia v Warid Telecom Uganda Ltd (HCCS No. 234 of 2011)
  • Rwantale v Rwabutoga (1988-1990) HCB 100

Full judgment

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

Nsubuga & Sons Properties Ltd v Norah M.K. Kyobe (Civil Suit No. 718 of 2013) [2017] UGCommC 290 (26 June 2017)
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.