THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
(EXECUTION AND BAILIFFS DIVISION)
MISCELLANEOUS APPLICATION NO. 1788 OF 2016
(ARISING FROM EMA NO. 1105 OF 2016)
(ARISING FROM MISC. APPLICATION 448 OF 2014)
(ARISING FROM CIVIL SUIT 0241 OF 2013)
HAJJI KATONGOLE MUHAMMADI ……………………….. APPLICANT
WALAKIRA CHRISTOPHER (ADMINISTRATOR OF THE ESTATE OF LATE KYAGULANYI GEORGE) …………………........… RESPONDENT
BEFORE LADY JUSTICE FLAVIA SENOGA ANGLIN
By this application made under 0.52 rr 1, 2, and 3 C.P.R and S.98 CPA, the Applicant prayed court to issue the following orders:-
- An order compelling the Respondent/Plaintiff to release/surrender to the Applicant/Defendant five(5) acres of land exchanged with 5 acres of land meant for burial grounds (EKIJJA Kyomutaka) which the Applicant has failed to utilize as it is in the names of the Respondent’s late grandfather.
- It is prudent that the order issues to conclude the consent between the parties so that every party is settled accordingly.
- Costs be in the main case.
He grounds for the application are that:-
- The Applicant agreed to surrender 16 acres of land on Plot 17, Block 15 out of the 36 acres, to the Respondent’s family.
- The parties shared the surveyor’s costs to sub divide or demarcate the said land.
- The Applicant retains the residue mentioned in the first paragraph.
- The parties further agreed to the legal costs of both Counsel to be 2 acres of land taken out of the 16 acres of land.
- Further that the family of the Respondent retains 9 acres from the Applicant plus 5 acres in meant for the graveyard and totaling to 14 acres.
- At the time of appending signatures to the consent, the Applicant had assured the Respondent that the said land is free from any encumbrance.
- The 5 acres above said have developed problems as they are registered in the names of the Respondent’s grandfather and therefore cannot be utilized by the Applicant.
- It is necessary for the Respondent to surrender back 5 acres in exchange for the grave yard so that the consent can be settled.
- It is only just and equitable that the application is granted.
The application is supported by the affidavit of the Applicant.
There is an affidavit in reply deponed by the Respondent. He confirms that he consented to get 16 acres of land from Plot 17, Singo Block 15 out of the 36 acres. And that the surveyor’s costs were to be shared.
However that, the Applicant had the 5 acres meant for the grave yard that is Plot 29, Singo Block 13 marked in red on the area surveyed off the land. There is already a title for the land in the names of Luswata Joseph.
However that, ever since the sub divisions were done, the Respondent has not received the land title and its whereabouts are unknown to him to date.
The land was sub divided according to the consent judgment dated 17.03.15.
That is not true that the Applicant never received the 5 acres, but he transferred them as indicated above.
It was then prayed that the application should not be granted.
From the 17.10.16 when the matter was first called for hearing, up to 06.03.17, the parties were given a chance to try and settle the matter amicably. But each side kept on giving a different interpretation to the consent judgment. There was dispute as to where the 2 acres for paying the lawyers should have come from.
The application was accordingly heard on 15.03.17.
Counsel for the Applicant went through the provisions of the law under which the application was made and the orders sought by the Applicant.
Counsel submitted that the application was meant to give effect to the consent judgment.
That after the survey and surrender of the 16 acres to the Respondent, it was discovered that the 5 acres that were supposed to be exchanged with 5 acres by the Applicant were not available for the Applicant, as they were registered in the names of the grandfather of the Respondent.
Counsel asserted that it is necessary for the Respondent to surrender the 5 acres given in exchange for the burial grounds to give effect to the consent judgment. The judgment, Counsel added was made by the parties out of their free will.
In reply, Counsel for the Respondent submitted that the Respondent is honouring the consent judgment of 17.07.15. He went through the consent judgment clause by clause, adding that the Applicant fulfilled his obligations under the consent judgment and hence signed the transfer for the 14 acres. The land title was processed and secured by the Respondent as Plot 36, which is in the Respondent’s names.
The Respondent, it was pointed out had also been to be the one to surrender 2 acres for the lawyer’s fees as indicated in clause 4 of the consent judgment.
It was therefore to the Respondent’s surprise and dismay that the Applicant filed this application seeking to compel the Respondent to surrender 5 acres in exchange for the grave yard.
Counsel argued that, the written statement of defence in Civil Suit 241/13 where Applicant was Defendant, the Applicant said he had bought only 20 acres. It was on that basis that the consent for 16 acres was entered and the Respondent took that as the family share.
Further that, to the understanding of the Respondent’s family, returning 9 acres was okay together with 5 acres for the grave yard which was the burial grounds of the Respondent’s family.
It was contended that the Applicant has 22 acres on his title which includes the 2 acres meant for the lawyer fees. And that the Applicant ought to have challenged the consent judgment before appending his signature but he remained quiet.
The Respondent and family out of 16 acres retained 14, meaning that 2 acres were surrendered for lawyers fees.
The Respondent insists that there was no exchange for the 5 acres, which are in the names of the Respondent’s grandfather and which was not part of the suit land in Civil Suit 241/13.
And that since the consent judgment was fulfilled by the parties, where the Respondent received 14 acres and the residue was retained by the Applicant, the application ought to be dismissed with costs to the Respondent.
In rejoinder, Counsel for the Applicant contended that the Respondent was contradicting himself when he claims that the Applicant fulfilled his part of the bargain by surrendering 16 acres, but then claims that after getting 16 acres, the Respondent was required to surrender 2 acres to the Advocates and therefore retained 14 acres.
Counsel states that, the Respondent’s family was supposed to get 9 acres and 5 acres were to be the grave yard, which was exchanged for another 5 acres from the Applicant.
He argued that, it is not true after exchanging 5 acres, then the Applicant’s title has 22 acres. That the land which was supposed to be retained by the Respondent was 9 acres only. The 5 acres was an exchange as per the consent judgment paragraph 5.
It was contended that, after signing the consent judgment, the Respondent cannot go back to the pleadings and reopen them against the Applicant.
That the consent judgment is a judgment for all intents and purposes and what is contained therein is what is sought to be enforced.
Further that, court presumes that by the time the parties reached consent, they had deliberated and agreed amicably. Therefore that, the consent cannot be vitiated or varied at the time of execution unless there is fraud or misrepresentation which was not to the attention of the parties at the time of signing.
Therefore that, where the family is said to retain 9 acres, it cannot retain 14 acres.
Court was urged to uphold the prayers of the Applicant and give effect to the consent judgment.
It is apparent from the application, the affidavits for and against the application and the submissions of both Counsel that resolution of the impasse between the parties depends on the interpretation of the consent judgment.
Therefore in determining this application, I wish to bear in mind the principle of law established by decided cases that “interpretation is the process of attributions meaning to rewards used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in light of the ordinary values of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production. Where more than one meaning is possible each possibility must be weighed in the light of all these factors. The process is objective, not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document. Judges must be alert to, and guard against the temptation to substitute what they regard as reasonable, sensible or businesslike words for the words actually used.
To do so in regard to a Statute or Statutory instrument is to cross the divide between interpretation and legislation; in a contractual context it is to make a contract for the parties other than one they in fact made. The inevitable point of departure is the language of the provision itself, read in context and having regard to the purpose of the provision and the background to the preparation and production of the document.
The proper approach to the interpretation of documents is from the outset to read the words in the context of the document as a whole and light of all circumstances”. – Refer to Natal Joint Municipal Pension Fund vs. Enduman Municipality 2012 (4) SA 593 (SCA) – Wallis JA.
Looking at the consent judgment in the present application and giving the words used therein their natural meaning in light of the document as a whole and the circumstances attendant upon its coming into existence, I find that there is no where it was indicated that there was to be an exchange of any land by the parties.
It can be discerned from the consent judgment that there was a total of 36 acres. Out of those 36 acres, the Applicant/ then Defendant agreed to surrender 16 acres to the family of the Respondent.
The parties shared the surveyor’s costs for the subdivision/demarcation of the land in the manner agreed. The Applicant retained the residue of 20 acres out of the 36 acres. 36 minus 16 equals 20. The 2 acres meant for legal costs of both Counsel were agreed to be taken out of the 16 acres of the Respondent. Thus leaving a balance of 14 acres.
It is therefore unacceptable for the Respondent to claim that they were prevailed upon to surrender the 2 acres after the consent was made.
The 14 acres included 5 acres meant for the grave yard.
And the land was free from any encumbrances.
Nowhere is it mentioned that there was to be any exchange of land between the parties in the consent judgment which was signed by parties and their witnesses together with both Counsel for the parties. The consent indicates that it was drawn and filed by two (2) firms of Advocates. And they being well versed in the law, they ought to have known what exactly was agreed by the parties and brought it out clearly in the consent judgment.
If there was an exchange agreed upon between the parties, then it were not brought out in the consent judgment and cannot be suggested at this stage.
If part of the land that remained with the Applicant is registered in the names of the Respondent’s grandfather and cannot be utilized, the parties are better off going back to the drawing board to ensure it is transferred into the names of the Applicant.
The application is disallowed for all those reasons.
Each party should bear its own costs.
Flavia Senoga Anglin