WhatsApp Messages Cannot Amend or Substitute Written Contract Terms, Clarifies the High Court.

Waboga David
Oct 15
4 min read

Facts

The respondent, Nalongo Estate Limited, filed a summary suit (Civil Suit No. 1513 of 2024) against the applicant, Migadde Habib, seeking recovery of UGX 400,000,000 as the outstanding balance from a land sale agreement, plus interest and costs.

The agreement, dated April 17, 2024, involved the sale of five acres of land comprised in Kyadondo Block 189 Plot 135 at Seta for a total consideration of UGX 1,150,000,000.

The applicant had paid UGX 750,000,000, leaving the balance unpaid.

The applicant refused to pay the balance, alleging a breach by the respondent in the subdivision and mutation of the land.

Specifically, the applicant claimed that the agreement required two acres to be in a waterlogged area (valued at UGX 200,000,000 each) and three acres in a dry area (valued at UGX 250,000,000 each), but the respondent mutated all five acres into a waterlogged area, contrary to the understanding.

The applicant supported this with WhatsApp messages exchanged with a director of the respondent company.

The respondent denied any such term in the agreement, asserting that the sale was for the specified land without conditions on its nature (waterlogged or dry), and that the applicant's refusal was unjustified. The land was mutated into Plot 8693 after the agreement.

The applicant brought this miscellaneous application under Section 98 of the Civil Procedure Act and Orders 36 and 52 of the Civil Procedure Rules, seeking unconditional leave to appear and defend the suit.

Issues

Whether the applicant has disclosed a triable issue of fact or law entitling him to a grant of leave to appear and defend Civil Suit No. 1513 of 2024?

Submissions

Applicant's Submissions (by Mr. Sebatindira Fahmy of Kirumira & Co. Advocates) Counsel did not dispute the outstanding balance of UGX 400,000,000 but justified the refusal to pay on grounds of breach. He argued that the respondent breached the agreement by mutating all five acres into a waterlogged area, contrary to the original understanding of two waterlogged acres and three dry acres.

Reference was made to annexed WhatsApp messages (marked "A") confirming differential valuations: UGX 200,000,000 for two acres and UGX 250,000,000 for three acres. The applicant expressed willingness to pay the balance if the breach was remedied by providing the agreed land configuration.

Counsel cited authorities such as Mugoya Muwazi v. Buyinza John (HCMA No. 1162/2014) for the principle that leave should be granted where a genuine defense appears, and the court should try any disputed issue.

He also relied on Makula Interglobal Trade Agency Ltd v. Bank of Uganda to argue that the defense must be stated with particularity but need not be proven on merits at this stage, general denials are insufficient, but here the defense was specific and genuine.

Respondent's Submissions (by Mr. Betunda Yusuf of Musoke & Marzuq Advocates & Legal Consultants)

Counsel agreed on the agreement's existence, the partial payment, and the outstanding balance. However, he contended that the applicant's claim about the land's nature (two waterlogged acres and three dry acres) was false and an afterthought aimed at orally amending the written agreement.

He emphasized that no provision in the agreement specified such conditions; breach requires an express contractual obligation, which was absent here.

Counsel urged the court not to aid the applicant in evading obligations, arguing that the defense lacked foundation in the contract's terms.

Legal Representation

Applicant, Mr. Sebatindira Fahmy (Kirumira & Co. Advocates)
Respondent, Mr. Betunda Yusuf (Musoke & Marzuq Advocates & Legal Consultants)

Court’s Findings

The court analyzed the application under Order 36 Rules 3 and 4 of the Civil Procedure Rules, which require a defendant in a summary suit to obtain leave to defend by affidavit showing a bona fide triable issue of fact or law. Citing Maluku Interglobal Trade Agency v. Bank of Uganda [1985] HCB 65, the court reiterated that leave is granted only if there is a reasonable ground of defense raising a question for trial, without entering into merits.

Under Order 36 rules 3 and 4 of the Civil Procedure Rules provide that a defendant can only appear and defend after obtaining leave from court, supported by an affidavit showing whether the defense goes to part or all of the claim.

The court noted that a bona fide triable issue of fact or law must be disclosed, but a good defense on the merits is not required at this stage (Maluku Interglobal Trade Agency Ltd v Bank of Uganda [1985] HCB 65).

Moreover, the sale agreement clearly stated the purchase of five acres free of encumbrances but did not specify that two acres should be waterlogged and three acres dry.

The WhatsApp messages relied on by the applicant merely confirmed pricing but did not demonstrate any contractual term regarding land nature.

Furthermore, Section 106(1) of the Evidence Act places the burden of proof on the party asserting facts, in this case, the applicant failed to produce evidence proving the alleged contract term.

“In this instance, this court is not satisfied that the applicant has demonstrated the existence of a triable issue of fact or law that entitles them to have Civil Suit No. 1513/2024 adjudicated.”

Holding

The High Court dismissed the applicant’s application for leave to appear and defend Civil Suit No. 1513/2024, with costs awarded to the respondent.

Key Takeaways

A defendant must disclose a bona fide triable issue of fact or law. Mere disagreement or afterthought defenses are insufficient.
Only terms expressly stated in a contract are enforceable. Alleged oral amendments or assumptions require strong evidence.
Under section 106(1) of the Evidence Act, the party asserting facts carries the burden of proof.
WhatsApp messages may support claims, but cannot substitute for express contractual terms.
Parties should ensure that written agreements clearly define all material aspects of a transaction, including specifications of property being sold.

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