Namakula v Lukwebe (Miscellaneous Application 1024 of 2023) [2024] UGHCFD 47 (18 April 2024)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (FAMILY DIVISION) **MISCELLANEOUS APPLICATION NO. 1024 OF 2023** (ARISING FROM EMA NO. 003 OF 2022) (ARISING FROM FORMERLY HIGH COURT EXECUTION DIVISION EMA NO. 1811 OF 2018, ALSO ARISING FROM CIVIL APPEAL NO. 01 OF 2012 (FAMILY DIVISION); AND ALSO ARISING FROM DIVORCE CAUSE NO. 24 OF 2008 OF THE CHIEF **MAGISTRATE'S COURT OF MENGO)**

# ROBUNAH NAMAKULA MASINDE :::::::::::::::::::::::::::::::::::: **VERSUS**

## LUKWEBE RONALD T/A MPIINA ADVOCATES, COURT BAILIFFS AND AUCTIONEERS. ::::::::::::::::::::::::::::::::::::

## Before: HON. LADY JUSTICE DR. CHRISTINE A. ECHOOKIT

#### **RULING**

#### **BRIEF BACKGROUND**

This application is for orders that the consent certificate of taxation between the applicant and the respondent dated 14th November 2018 and endorsed by this Honourable Court on the 30th day of November 2018 be reviewed and/or set aside for inter alia illegality, mistake, fraud and for being null and void ab initio; the respondent be directed to file his bill of costs (if any) for taxation inter parties before this Honourable Court; and costs of the application be provided for. The application is brought under article $26(1)$ , $28(1)$ , $126(2)(e)$ of the Constitution, section 82 and 98 of the Civil Procedure Act, section 33 of the Judicature Act, regulations 5 and 6 of the Advocates (Professional Conduct) Regulations and order 46 rules 1, 2 and 8 of the Civil Procedure Rules. It is supported by the affidavit of the applicant Robinah Namakula Masinde.

Ronald Lukwebe filed an affidavit in reply to the effect that the application is frivolous and vexatious as it was brought to unjustifiably defeat his claim for fees and costs for his work done in Kampala High Court Family Division EMA No. 1811 of 2018; and that an order for stay of execution at the High Court Civil Appeal No.01 of 2012 does not bar him from claiming his fees and costs because he was not a party to that appeal or Mengo Chief Magistrate's Court Divorce Cause No. 24 of 2008.

Robinah Namakula Masinde swore an affidavit in rejoinder to the effect that the respondent's affidavit in reply is incurably defective and incompetent, argumentative and offensive in law and the same is accompanied with a defective and faulty attestation clause and indeed, his advocates shall at the earliest instance apply to this Honourable Court to have the same struck out with costs.

### HEARING AND REPRESENTATION

The applicant was represented by M/s Sam Kiwanuka & Co. Advocates while the respondent was represented by M/s Magellan Kazibwe & Co. Advocates. The parties filed written submissions.

#### ISSUES FOR DETERMINATION OF COURT

- 1. Whether the there is sufficient ground for review. - 2. What remedies are available to the parties?

#### DETERMINATION OF ISSUES BY THE COURT

Before I address the substance of this application, I observe that on the 19th of February 2024. the matter was first brought before the registrar who then ruled that it was wrongly so allocated; hence, it was forwarded to a judge for better management. Accordingly, it is not necessary to pursue the respondent's argument that a registrar is not delegated the power to review judgements or orders of the High Court including those entered by the registrar.

The second issue I must deal with next is the preliminary objection raised by the applicant. The applicant in her rejoinder submissions stated that she intended to raise a preliminary objection to the affidavit in reply under the Illiterates Protection Act to the effect that the certificate of translation is illegal and renders the whole affidavit defective. She averred that the deponent (Lukwebe Ronald) is not conversant with the English language and that is why there is a translation to him from English to Luganda. The applicant states that the certificate of translation does not state who drafted it on behalf of the deponent and whether the translator was given authority by the deponent to translate the affidavit.

I will not delve much into the issue of the application of the Illiterates Protection Act to this application. Suffice it to state that the said Act is intended to protect persons who are illiterate so that what is written in an affidavit they swear is indeed what they intend to be written, translated into English. I see that court pleadings and affidavit evidence have tended routinely to include a certificate of translation whether or not it is needed. In the instant application, the respondent trades as a court bailiff and auctioneer and cannot, for all intents and purposes, be said not to understand English. A person of his qualifications and practice does not need his affidavit to be translated to him in the first place. Hence, it is obvious that the said certificate of translation is just a formality in the instant case and cannot be used as reason for striking out the entire affidavit in reply.

Also, I shall not go into the argument of frivolity and/or incompetence of the affidavit evidence of either party as it will do no good to the disposal of the matter before this court. Instead, I will address the substantive issues before me.

# **Issue 1: Whether there is sufficient ground for review**

The applicant Robinah Namakula Masinde swore an affidavit in support of her application stating, briefly that her former lawyers Muhwezi Law Chambers engaged the services of the respondent for execution of the court orders in respect of High Court Civil Appeal No. 01 of 2012 which arose from Mengo Chief Magistrate's Court Divorce Cause No. 24 of 2008 and paid him for the same. The respondent in his reply stated that he was not paid for the services so rendered. In his affidavit evidence, the respondent states that after the conclusion of the process of execution and the sharing of the properties between the applicant and her former husband Asa Willis Masinde, he the respondent filled his bill of costs on 31/10/2018. The respondent stated further that the parties later entered into a consent and a Consent Certificate of Taxation was filed on 20/11/2018 and endorsed by His Worship Nizeyimana Deo on 30/11/2018. A copy of the Consent Certificate of Taxation is attached to his affidavit and marked annexture "G".

In her affidavit in support of the application, the applicant stated that her former advocates Muhwezi Law Chambers did not explain the contents and impact of the consent certificate of taxation to her and indeed, the applicant was mistaken about the contents of the same yet she substantially relied on the professionalism and expertise of her former advocates. She emphasized that the said consent certificate of taxation was not translated to her by anyone because if the same had been done, she would not have endorsed the same; and that she never freely consented to the terms of the Consent Certificate of Taxation because there was inter alia misinterpretation of material facts during the signing of the Consent Certificate of Taxation. She further stated that she never attended court during the endorsement of the said

consent certificate of taxation; that the amount of Uganda shillings 51,840,000/- was grossly exaggerated, unreasonable, excessive, unconscionable, oppressive, illegal and in total disregard of the laws governing the scale of the bailiff's fees and costs; and that the Consent Certificate of Taxation is an unjust enrichment of the respondent.

In his reply, the respondent stated that the applicant is a director of Romasa College Mukono and it would be a total lie to state in her application that she was mistaken about the contents of the consent certificate of taxation yet she called the respondent to her former lawyers' chambers and the lawyer explained to him and the applicant the contents thereof before appending their signatures; that ignorance of what was stated in the consent certificate of taxation is not ignorance of material facts and that ignorance that would vitiate consent as envisaged under the known principles must be ignorance of a fact that is material to the merits of the cause.

I agree with the submission of the applicant that once a consent judgement is recorded or endorsed by court it becomes the judgement of the court and is binding upon the parties. Such a consent can only be set aside for a reason which would enable the court to set aside an order or judgement of court, that is, where it was obtained by fraud or collusion, or by agreement contrary to the policy of court, or it was entered into without sufficient material facts or misapprehension or ignorance of material facts or in general for the reason which would enable a court to set aside an agreement. In that regard, the applicant's counsel cited the case of Hirani Vs Kassam [1952] E. A 131 which was followed in Attorney General & Anor Vs James Mark Kamoga & Others, Supreme Court Civil Appeal No. 8 of 2004, and the case of Babigumira John & Others Vs Hoima Council [2001-2005] HCB 116. The mode of setting aside is more appropriately by way of an application for review (the case of Pavement Civil Works Ltd Vs Andrew Kirungi, High Court Misc. Application No. 292 of 2002).

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I have perused the consent certificate of taxation in annexture "G" to the respondent's affidavit in reply. I see that it is signed on 14th November 2018 by both the applicant and the respondent in the presence of a one Erick Muhwezi; and is endorsed by His Worship Nzeyimana Deo the Deputy Registrar. It was submitted for the applicant that the consent certificate of taxation was null and void on grounds stated in her affidavits in support of the application and the affidavit in rejoinder. It was argued that the circumstances leading to the execution of the impugned consent certificate of taxation were dubious and are full of falsehoods.

Counsel for the applicant cited the case of Krone Uganda Ltd Vs Kerilee Investments Ltd, Miscellaneous application No. 306 of 2019, where Justice Boniface Wamala noted that;

".....the ground for vitiation of a consent judgement must relate to the conduct of the parties at the time of execution of consent. This is because a consent is a different agreement and a consent judgement/decree is passed on terms of the new contract between the parties to the consent judgement."

The question at this point is whether there were vitiating factors in the circumstances of the consent certificate of taxation.

From the affidavit evidence of the applicant, I note that prima facie, that the applicant signed the consent is justifiable reason to conclude that she was aware of its content and agreed to it. This is especially so as she has not adduced evidence to show that her signature on the consent was forged. Admittedly, however, it is possible for a person to sign onto something she does not properly understand, even if as pointed out by the respondent in this case, she is a director of Romasa College Mukono.

The said consent certificate states in part;

"it is hereby consented by the appellant and the bailiff, Lukwebe Ronald, agreed that;

- $i)$ The bailiff's fees and costs in executing the decrees, High Court Civil Appeal No. 01 of 2012 of Family Division-Kampala and Divorce Cause No. 24 of 2008 of Chief Magistrate's court at Mengo be Ug. Shs. 51,840,000 (Fifty-One Million Eight Hundred Forty Thousand Shillings only). - ii) That the appellant shall pay to the said bailiff his costs and fees on or before the 28th day of February, 2019."

On the face of it, the contents of the consent certificate of taxation are pretty straightforward. The applicant states in her affidavit that the said content was not translated to her and that she never freely consented to the terms of the consent certificate of taxation. The respondent in his affidavit in reply, however, stated that the applicant called him the respondent to her former lawyers' chambers and the lawyer explained to him and the applicant the contents thereof before they appended their signatures. The applicant in rejoinder stated that the said certificate of taxation should be vitiated by mistake, fraud, or misrepresentation.

I am not convinced that the applicant has proved ignorance of the material content in the consent certificate of taxation and that whether the content was translated into Luganda would vitiate that consent. As to the allegations of mistake, fraud or misrepresentation purportedly making the consent null and void, these have not been proved in a manner required by law as the correct procedure should have been by way of ordinary suit allowing for full disclosure of exhibits and examination of witnesses.

It is apparent to me that the real disquiet the applicant has with the consent certificate of taxation is in the amount she is required to pay. She states in her affidavit that the amount of Uganda shillings 51,840,000/- was grossly exaggerated, unreasonable, excessive, unconscionable, oppressive, illegal and in total disregard of the laws governing the scale of

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the bailiff's fees and costs; and that the Consent Certificate of Taxation is an unjust enrichment of the respondent.

If that is the reason, the applicant ought to have had the bill of costs taxed before the deputy registrar and should not have consented to paying an amount in a consent certificate of taxation which she is now asking this court to disregard. In my opinion, the learned deputy registrar was right to endorse the consent certificate of taxation and did not make an erroneous decision in that regard. I am also not convinced that the consent taxation was entered into without sufficient material facts or misapprehension or ignorance of material facts or in general for the reason which would enable a court to set aside an agreement.

That notwithstanding, the Judicature (Court Bailiffs) Rules at rule 22 entitle a court bailiff to remuneration for their service in accordance with a specified scale and applied to the decree extracted in court. The decree of 5th June 2018 in Civil Appeal No. 01 of 2012 allowed the parties to the appeal to share the property in equal proportion. As per the letter of Mpiina Associates to the Deputy Registrar of the High Court and dated 19th September 2018 attached as annexture C to the respondent's reply, the two parties to the appeal each got property valued at 1,728,000,000/=. The respondent's bill of costs sought to tax the said amount at the professional fee of 6%, but before the parties could tax the bill of costs, they entered into a consent taxation.

Also on court record is a memorandum of understanding dated 4th January 2020 which the parties allegedly entered into for transfer of land comprised in Kyaggwa Block 107 Plot 1959 at Nakabago to the respondent to enable him curve out land measuring 100ft x 100ft as payment in lieu of the consent amount. In my opinion, it was wrong to apportion land as payment for the bailiff's fees. Such a practice if it goes unchecked, can be abused to deprive litigants of their land. Instead, the applicant ought to have been given the opportunity to raise

the money consented to. If the applicant was not comfortable with the terms of the consent, as I have stated above, she ought to have had the bill of costs taxed.

In a turn of events, the applicant averred that the memorandum of understanding was illegal because the bailiff cannot benefit from property which is the subject of his or her execution proceedings. The question is whether it is right for the bailiff to get paid from the property which was the subject of his execution services. I believe it is not. The bailiff should instead file a bill of costs for taxation following the correct procedure.

The respondent in his reply stated that he wrote a letter dated 21st February 2023 withdrawing the mode of attachment and sale on ground that the land situate at Nakabago Kyagwe Block 107 Plot 2621, Mukono District was encumbered and he requested court to change his mode of execution to arrest and committal of the judgement debtor in civil prison. A copy of the Execution Misc. Application No. 003 of 2022 and the letter dated 21/02/2023 are attached to the affidavit of the respondent. The respondent further stated that this honourable court on 29th of May 2023 issued a notice to show cause why a warrant of arrest should not issue against the applicant and fixed the matter for hearing on 31/08/2023 but the matter did not proceed as Her Worship Prossy Katushabe who was supposed to handle the matter had been transferred and the file was pending allocation. A copy of the Notice to show cause why execution should not issue is attached to the affidavit of Ronald Lukwebe.

I will not go into the merits of MA 003 of 2022 regarding notice to show cause why execution should not be done by committal to civil prison. I decline to do so because it is apparent to me that the parties are not in tandem as to what should actually be executed.

That notwithstanding, I believe that court has a prerogative to look into instances where parties consent to paying costs and yet such costs are said to be exorbitant. Court cannot look on as one of the parties is disadvantaged where proper grounds are adduced to show that the facts were misrepresented at the time the consent was reached. I see from the affidavit evidence of the applicant that the applicant does not contest the value of the property apportioned to her, the basis on which the respondent calculated his fees. Instead. She pleads the lack of translation of the consent into Luganda and that she was not fully aware of the implications of the consent.

Counsel for the applicant referred to Black's Law Dictionary Revised 4th Edition at page 1705 that defines unjust enrichment to mean retention of money or benefits which in justice and equity belongs to another; and that states that the doctrine of unjust enrichment does not allow a person to benefit or enrich himself or herself at another's expense. She stated that the amounts of money paid for the valuers in the process of execution is already part of the costs due to the respondent and the respondent should not be seen to benefit twice; as such, the consent entered into was vitiated by mistake, collusion and misrepresentation of material facts. She stated that accordingly, the proper and justifiable course should be to direct the respondent to file a bill of costs for taxation inter parties.

From the perusal of the Judicature (Court Bailiffs) Rules, 2022, I note that rule 22 and schedule 3 thereof puts professional fees for court bailiffs at 3% of the amount recovered. Rule 23 allows for the recovery of expenses out of the fee payable to the court bailiff. In other words, expenses shall not be charged additionally unless allowed by court after a finding that they are necessary and reasonable in the circumstances.

I understand from the respondent's reply that he claims that the applicant only facilitated the process of execution by inter alia paying for applications for special certificates of title, vesting

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orders, transport to and from the properties to be surveyed and valued, as well as payment of surveyors and valuers. The respondent attaches a copy of the Decree, Warrant of attachment and Return of warrant to his affidavit in reply as annextures "A", "B" and "C". My understanding of the Judicature (Court Bailiffs) Rules is that those expenses are part of the professional fees due to the respondent. The question should be whether after deducting the expenses there is still an amount owing to the respondent of the 3% professional fee so that the respondent is not seen as unjustly enriching himself. That is the amount that should be considered for payment and any other amount envisaged under schedule 3 of the court bailiffs' rules.

## **Issue 2: What remedies are available to the parties?**

In view of my finding under issue 1 above, the remedy available to the parties is in ensuring that the consent certificate of taxation is in consonance with the Judicature (Court Bailiffs) Rules; and if it is not, the taxing master will refer to the bill of costs previously filed by the respondent and tax the matter.

## CONCLUSION

In the premises, this application fails in part and I order that;

- a) The matter be and is hereby referred to the taxing master to ensure that the consent certificate of taxation is in consonance with the Judicature (Court Bailiffs) Rules. - b) If the answer in a) above is in the negative, the taxing master shall tax the bill of costs previously filed by the respondent. - c) Each party shall bear its own costs.

I so order.

Delivered on this.................................... $\ldots \ldots 2024.$

DR. CHRISTINE A. ECHOOKIT Judge

Right of appeal explained.