Nipun Bhatia & Another v Boutique Shazim Limited (Civil Appeal No. 179 of 2015) [2020] UGCA 2026 (3 March 2020)

‘THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL AT KAMPALA

Coram

OWINY - DOLLO DCJ, EGONDA - NTENDE AND TUHAISE JJA. CIVIL APPEAL NO 179 OF 2015 (Appeal from the judgment of Nyanzi J; in High Court Civil Appeal No. 411 of

NIPUN BHATI (Administrator of the Estate of Narattam Bhati) HEMANTINI BHATIA sesnennuinnininsnsonse APPELLANTS ‘VERSUS BOUTIQUE SHAZIM LIMITED........0:-cse+ssoessseesssesssvessnsesssneesnneessneessneeee RESPONDENT JUDGMENT OF OWINY - DOLLO; DCJ Thad the opportunity to read, in draft, the judgment of my learned sister, Tuhaise, JA. | am in agreement with her that this appeal should succeed. Since Egonda-Ntende, JA also agrees, this appeal therefore succeeds; and the orders proposed by Tuhaise JA in her judgment are hereby ' issued. \ ' a

Dated, and signed at Kampala this ....... day of NSLS, 2020. Deputy Chief Justice

‘THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL FOR UGANDA [Coram: Owiny-Dollo, DCJ, Egonda-Ntende and Tuhaise, JJA\ CIVIL APPEAL NO. 179 OF 2015 [Arising from High Court Civil Suit No.411 of 1998] BETWEEN Nipun Bhatia (Administrator of the the Estate of Narattam Bhatia)=======—————————-——=-—Appellant No. Hemantini Bhatig==———————————————_-——--———--—-—== Appellant No.2 AND Boutique Shazim Limited===———-————————-——===========Respondent (On appeal from a ruling of the High Court (Nyanzi, J), delivered on 11" February 2015) Judgment of Fredrick Egonda-Ntende, JA

1. Thave had the opportunity to read in draft the judgment of my sister, Tuhaise, JA. I agree that this appeal must succeed for the reasons she provides.

2. Lam in agreement too with the proposed as oe! scsi Dated, signed and delivered at Kampala this day of NR 3929 fi nF Ay Frfdrick Egonda-Ntende Justice of Appeal ~

THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

Owiny-Dollo DCJ, Egonda-Ntende, & Tuhaise, JJA Civil Appeal No. 179 of 2015

1. Nipun Bhatia (Administrator of the estate of Narattam Bhatia)

2. Hemantini Bhatia cc aie Appellants Versus Boutique Shazim Limited ..........sseeseeemenRespondent [Appeal from the judgment of Yasin Nyanzi J, in High Court Civil Suit No. 411 of 1998 dated 11% February 2015] Judgment of Percy Night Tuhaise The brief background to this appeal is that on 1* July 1995, the 2d appellant and her husband Narattam Bhatia (who were defendants in HCCS No, 411/1998), were the registered proprietors of property comprised in LRV 247 Folio 1 Plot 12 Buganda Road (referred to as the suit property in this appeal). They entered into a sale agreement with the plaintiff (respondent in this appeal) for the sale of the suit property at an agreed price of United States Dollars (US$) 117,300. The respondent paid US$ 50,000 upon execution of the sale agreement. Clause 2 (b) of the sale agreement stipulated that the balance of US$ 67,300 was to be paid at any time within the next 75 days, and that failure by the respondent to complete payment within the stipulated time would cause the sale agreement to lapse and the property to revert to the vendors, subject only to refunding the US$ 50,000 to the respondent by the vendors. The respondent (plaintiff) effected payment of the balance 9 days after the contractual deadline. This prompted the defendants to ne

f

reject the payment on the basis that the contract had already lapsed. The defendants then opted to refund the US$ 50,000 to the respondent (plaintiff). The respondent rejected the refund and filed a lawsuit HCCS No. 910 of 1995 seeking specific performance of the sale agreement of the suit property. The suit was struck out for non-disclosure of cause of action. The respondent filed a fresh suit, HCCS No. 411/1998 which the High Court dismissed on 25" September 2005, on grounds that it was res judicata. Subsequently, on 1% August 2010, the Supreme Court affirmed the order of the Court of Appeal that the case was not res judicata, and that it disclosed a cause of action. ‘The suit was subsequently placed before another trial Judge for hearing. At the commencement of the trial on 1 March 2012, the 1st defendant's name was replaced by that of his son Nipun Bhatia (the 1stappellant in this appeal) as administrator of his estate. On 11* February 2015, the learned trial Judge entered judgment in favour of the respondent. He found that the sale agreement had not lapsed for the reason that time was not of the essence; and that the appellants were more at fault for the failure of the respondent to fulfil its contractual obligations. He granted an order for specific performance of the sale agreement in favour of the respondent, effectively ordering a transfer of title of the suit property to him. He also dismissed the appellants’ counterclaim, and granted costs of the suit and the counterclaim to the respondent. The defendants (appellants) were dissatisfied with the decision and orders of the learned trial Judge. They lodged this appeal on the following grounds:~

1. The learned trial Judge erred in law and fact when he found

that time was not of the essence in the agreement of sale fn

The pages read for this report end here. The judgment continues in the PDF.