On June 13, 2016, Ivan Tumusiime, a money lender, entered into a sale agreement with Deogratius Bekalazze and Monica Nazziwa for a piece of land in Kitala, Wakiso. The land, measuring 0.056 hectares, contained a two-bedroom house and seven rental units. Tumusiime paid Shs 90 million and was given the duplicate title and signed transfer forms.
However, Bekalazze and Nazziwa refused to vacate the land so that Tumusiime could use it.
To make matters worse, they forged another title and used it to secure a loan from Premier Credit, which later advertised the property for sale after Nazziwa defaulted on repayments.
Tumusiime confronted them, but Bekalazze and Nazziwa stood their ground. They claimed they had just “borrowed” the money from Tumusiime, who is a moneylender, and accused him of forging the sale agreement.
Tumusiime took them to court.
Nazziwa, in a counter-suit, argued that the land was their matrimonial home and that she had never consented to any sale.
Premier Credit maintained it had lent Nazziwa Shs 8 million secured by her kibanja interest in the same property.
However, Tumusiime’s lawyers, Justine Nakajubi Mufumbya and Ronald Kasozi of Nabukenya, Mulalira & Co Advocates, told the court that the sale agreement was valid because the couple received full payment and voluntarily handed over the title and transfer forms.
Faith Namajja, representing Premier Credit, argued that the sale agreement was invalid since Tumusiime had not signed it, and therefore, no binding contract existed.
Bekalazze and Nazziwa’s lawyer, David Luswata, did not file submissions despite representing them in court.
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After hearing the arguments from all sides, Justice Patricia Basaza-Wasswa ruled that although Tumusiime had not signed the agreement, the deal was still binding under the legal principle of part performance because both sides had acted on it. She said money was paid, documents exchanged, and possession was promised.
“The wording of the agreement is a written expression of free consent between Mr Tumusiime and the defendants,” she wrote. “All prerequisites for a valid contract under the Contracts Act are satisfied.”
The court accepted evidence from Tumusiime and his witnesses that the Shs 90 million was paid in cash, witnessed by four people, and that the sellers handed over their title and identification documents.
By contrast, Bekalazze and Nazziwa never testified or produced any proof of fraud.
“Their allegations remain bare and of no legal consequence,” Justice Basaza-Wasswa said, citing the Evidence Act, which places the burden of proof on whoever asserts a fact.
She also faulted Premier Credit for accepting a non-existent security. She found that by the time Nazziwa mortgaged the land in April 2016, her kibanja interest had already been converted to freehold the previous year.
“The purported kibanja tenure was non-existent on the suit property as early as 06 January 2015 and was incapable of securing the repayment of the loan,” Justice Basaza-Wasswa held.
She therefore declared the 2016 memorandum of deposit between Nazziwa and Premier Credit “void and of no legal consequence.”
Damages and orders
The court granted Tumusiime ownership and ordered Bekalazze and Nazziwa to hand over vacant possession of the land immediately. They are also barred, together with Premier Credit, from entering, selling, or interfering with the property.
While Tumusiime had sought rental compensation (mesne profits), the court declined to award it, saying no proof of rent or tenancy agreements had been provided.
However, Justice Basaza-Wasswa awarded him Shs 20 million in general damages for loss of use and inconvenience and an additional Shs 7 million in punitive damages for the defendants’ “selfish and calculated” conduct.
The judge also ordered Bekalazze and Nazziwa to pay the full costs of the case.
