Removal of Caveat

THE APPLICANT’S FINAL SUBMISSIONS

The facts leading to the above application briefly state that;
The applicant bought a piece of land Comprised in Kyaggwe Block 97 Plot 1801, Land at Mpoma from a one X and accordingly transferred the title into its names under Instrument No. MKO-00024383 on the 12th day of January 2016.

The 1st respondent for reasons that are not known to the applicant caveated the land on the 18th day of January 2017 under Instrument No. MKO-00037697.

Through its Lawyers- Ms. Baruga Associated Advocates the applicant applied for removal of the Caveat and on the 13th day of June 2017, the said application was well received by the 2nd Respondent’s Mukono MZO. However, the said caveat was never removed hence prompting this application to this Honourable Court.

Hearing/Pleadings

The applicant filed an application by way of Notice of Motion brought under Section 98 of the Civil Procedure Act, Sections 140(1), 142, 145, 188 of the Registration of Titles Act and Order 52 rules 1-3 of the Civil Procedure Rules SI. 71-1 against the respondents for orders that the respondents show cause why the caveat they lodged on the applicant’s land should not lapse/be removed, the 2nd Respondent removes the caveat by the 1st Respondent from the Applicant’s land, the 1st Respondent pays compensation/ damages to the applicant for lodging a caveat on the applicants land without reasonable cause and the respondents pay the applicant’s costs of the application. The application was supported by an affidavit sworn by the applicant’s Director Mr. Y. However, the respondents did not file their affidavits in reply and the application was heard ex parte.

The legal issues involved include;

1. Whether or not the 1st applicant had any legal/equitable interest in the applicant’s land that could only be secured by lodging a caveat.

2. Whether or not the 2nd respondent should remove the caveat lodged by the 1st respondent from the applicant’s land.

3. Whether or not the applicant is entitled to compensation/ damages from the 1st respondent for lodging a caveat on her land without reasonable cause.

4. Whether or not the applicant is entitled to Costs.

Resolution of issues

Issue 1:  Whether or not the 1st applicant had any legal/equitable interest in the applicant’s land that could only be secured by lodging a caveat.
The Black's Law Dictionary (8th ed. 2004) at page 666 defines a caveat to mean a warning or proviso. It goes on to state that this has to be legal or equitable interest that is protectable by way of lodging a caveat

In the suit of Hooke Vs Holland (1984) WAR 167; it was stated that “the fact that the caveator has a caveatable interest does not by itself mean that he or she had a reasonable cause to lodge a caveat.”

In the case of Sentongo Produce  & Coffee Farmers Ltd Vs Rose Nakafuma HCMC 690/99 it was held that for a caveat to be valid, the cavetor must have an interest legal or equitable to be protected. 

It is our considered opinion that the 1st respondent did not have any legal or equitable interest that warranted him to lodge a caveat on the applicant’s land. First in paragraph 2 of the affidavit in support of the Notice of Motion sworn by the applicant’s director it was clearly stated that the applicant being a company bought a piece of land Comprised in Kyaggwe Block 97 Plot 1801, Land at Mpoma from a one X and accordingly transferred the title into its names under Instrument No. MKO-00024383 on the 12th January 2016. It is rather interesting that at the time when the company bought this land it was free of any encumbrance and the 1st applicant’s name was not mentioned in the history of ownership of this land. We wonder why the 1st respondent had to illegally lodge this caveat at the time when the applicant bought.

Secondly, while the applicant labored to effect service of the application on the 1st respondent for two times. The 1st respondent did not mind to put in his defense until when Court decided to proceed ex parte. To us conduct of the 1st respondent is apparent of some one who without justifiable reason lodged a caveat on the applicant’s land. The 1st respondent was accorded reasonable and a just opportunity to prove to this court that he holds a legal/equitable interest in the applicant’s land which he put to waste. Such an abuse of Court’s time should indeed work to the detriment of the 1st respondent.  In the premises we pray that Court finds that the 1st respondent did not have any legal/equitable interest in the applicant’s land that could only be secured by lodging a caveat.

Issue 2: Whether or not the 2nd respondent should remove the caveat lodged by the 1st respondent from the applicant’s land.
Having proved to this honourable Court in Issue 1 that the 1st respondent did not have any legal/equitable interest in the applicant’s land that could only be secured by lodging a caveat, it then follows that the 2nd respondent was wrong to register it. Furthermore the 2nd respondent did not show cause why the caveat lodged by 1st respondent should not lapse/be removed. We therefore pray that this Honourable Court orders the 2nd respondent to remove the caveat lodged by the 1st respondent.

Issue 3: Whether or not the applicant is entitled to compensation/ damages from the 1st respondent for lodging a caveat on her land without reasonable cause.
Order VII rule 7, of the Civil Procedure Rules SI 71-1, states that general damages may be awarded by court where court finds it appropriate to do so even where a party has not specifically stated them as a relief sought. 
Ugandan case law has also gone ahead to provide for general damages that may be awarded to litigants as was seen in the suit of Crown Beverages Ltd. vs. Ssendi Edward, SCCA No. 2005; where Ssendi consumed a Pepsi soda which had fallen products of a snail that affected his reproductive system. In the locus clasicus case it was stated that the amount to be awarded as general damages is a matter of discretion of the trial court which must be exercised judicially.
Similarly the Black's Law Dictionary (8th edition. 2004) at Page 1174 defines general damages as damages that the law presumes follow from the type of wrong complained of also known as compensatory damages for harm that so frequently results from the tort for which a party has sued that the harm is reasonably expected and need not be alleged or proved

In the suit of Kampala District Land Board & George Mitala V Venansio Babweyana, Civil Appeal No. 2 OF 2007 it was decided that “…it is well settled law on award of damages by a trial court. It is trite law that damages are the direct probable consequences of the act complained of. Such consequences may be loss of use, loss of profit, physical inconvenience, mental distress, pain and suffering.”
The 1st respondent without any legal/equitable interest in the applicant’s land lodged a caveat on it on the 18th day of January, 2017 under Instrument No. MKO-00037697. This caveat is standing to date. The applicant being a financial company had many plans for this land that were frustrated by the 1st respondent. In a similar suit FERDINAND MUGISHA VS. STEVEN BANYA AND THE REGISTRAR OF TITLES HCCS NO. 833 OF 2007 (reported on ulii); Justice Percy Night Tuhaise had this to say and we quote her verbatim
“…plaintiff cannot be without remedy of an award of general damages in the given circumstances where he clearly suffered inconveniences trying to remove the caveat and file a suit against the 1st defendant. An award of Ugx 15,000,000/= (fifteen million) as general damages in favour of the plaintiff would be appropriate, considering that the land is in the outskirts of Kampala, at Bwebajja.”
Similarly the applicant has gone through untold suffering since the 1st respondent lodged a caveat on her land. The applicant’s director stated in paragraphs 4 & 5 of the affidavit in support of Notice of Motion that the Applicant, through their Lawyers- Baruga Associated Advocates applied for removal of the Caveat and on the 13th day of June 2017, the said application was well received by the 2nd Respondent’s Mukono MZO but up to date the said caveat has not been removed.
The only remedy that the applicant was left with is file this application for an order to remove the said caveat.  Therefore the applicant prays for general damages for the period the 1st respondent has continuously maintained a caveat on her land.

Issue 4: Whether or not the applicant is entitled to Costs.
Section 27 of the civil procedure Act cap 71 provides that the court has discretion to determine costs and against whom. Cost has been defined by the Black's Law Dictionary (8th edition. 2004) at page 1048 to mean the amount paid or charged for something; price or expenditure. It can also be understood as EXPENSE.
In the suit of FERDINAND MUGISHA VS STEVEN BANYA AND THE REGISTRAR OF TITLES HCCS NO. 833 OF 2007 (reported on ulii); Justice Percy Night Tuhaise clearly noted that the plaintiff had incurred a lot in filing a suit for removal of caveat and also pursuing the same. She went ahead and awarded costs of the suit to the plaintiff. In the instant suit, the applicant has similarly incurred a lot first in applying to the registrar of titles Mukono MZO through her lawyers to have the caveat removed. Secondly the applicant has also incurred a lot in filing and pursuing this application in this Honourable Court for which she prays for costs.

Our humble prayer to this Honorable Court is for Orders that:
a) The 2nd Respondent removes the caveat by the 1st Respondent from the Applicant’s land.

b) The 1st Respondent pays compensation/ damages to the applicant for lodging a caveat on the applicants land without reasonable cause.

c) The Respondents pay the applicant’s costs of this application.

Trespass to land

FINAL SUBMISSIONS OF THE DEFENDANT
The facts leading to the above civil suit briefly state that;
The defendant is called X a peasant aged 60 years. The defendant’s son, the late Y was the owner of the contested suit property which he purchased on the 5th day of February, 1995. This kibanja is found in Kalagi LC 1, Nabbaale Sub County and it neighbours Ms. Z and it stretches from the back cloth tree up to the late XX. At the time of his death, he left 5 children two plots of land annexed to one another. The first plot which is not in contention in this Honourable Court had quite a number of developments including a house that the late Y used to live in with his family and also had rentals on the same.
However the second plot which is in contention in this Honourable Court was purchased by the defendant’s late son on the 5th day of February, 1995. After the death of the defendant’s son, YY whom he had left as care taker of the deceased’s plots was one day at around 2 pm in the house when he heard people talking outside in the contested plot. He moved out and found out that they were planting boundary marks on the deceased’s plot. He as a caretaker tried to inquire from the deceased’s mother/defendant in this case to find out whether the people planting boundaries had been sent by her.

On the following day, the deceased’s mother/defendant in this suit went to the area Chairman L.C.1 to report the matter of people planting boundaries on the plot of her son. The area Chairman said that he was not aware of the planting of the boundary marks and that she was free to use her son’s plot. However, when the defendant assigned a porter to make for her bricks the area committee members ZZ and XY came and threatened to arrest the defendant’s porter hence stopping the work of brick making.
That the deceased’s mother/defendant bought bricks and sand to develop her late son’s plot. That indeed the development was started but unfortunately unknown people came and demolished the house that had reached window level. The defendant did not lose hope but went ahead to reconstruct the structure that had been put down and indeed in 2003 completed a pit latrine.

That at the time of instituting this suit by the plaintiff in this Honourable Court, he intimated to the defendant that he had no interest in the suit but was rather being used by some crooks, hence bringing up this suit of trespass.

The following issues were raised for the determination of this Court.
1. Whether or not the defendant is a trespasser on the suit kibanja.

2. What are the remedies available to the parties?

In resolving the first issue as to whether the defendant is a trespasser on the suit kibanja;
First and foremost we have to understand what amounts to trespass.

In the case of JUSTINE E.M.N LUTAAYA VS STIRLING CIVIL ENGINEERING CO SCCA NO.11/2002, it was stated inter alia....that Trespass is a continuing tort when unlawful entry on the land is followed by its continuous occupation or exploitation.
Similarly, the Black’s Law Dictionary 8th Edition at pg.4685 defines trespass as an unlawful act committed against the person or property of another.
Important to note is that for the plaintiff to succeed in a suit of trespass, there are two well established key elements which have to be proved at a balance of probabilities and these being, having title to sue and being in possession of the land trespassed onto and the conduct of the defendant must be voluntary, intentional, reckless or careless. as discussed below;

In the case of Newington v Windeyer (1985) 3 NSWLR 555, this authority establishes the first element being; having title to sue and being in possession of the land trespassed onto, in this case, the Plaintiff had common boundaries with the Defendant with an area fronting onto the street. Whilst the Plaintiff did not have title over the area, they had gates giving access to it. Over a period of more than 50 years, they had cultivated the area as a garden and executed other acts of possession, and their visitors and trades people used it. They brought an action for trespass against the Defendant who had a common boundary with the area and claimed the right of possession, but who had no history of the exercise of this right. It was held that there was a trespass as the Plaintiffs had adverse possession of the land. Similarly in the case of Vaughan v Shire of Benalla (1891) 17 VLR 129, it was held that mere use of land without exclusive possession to land does not provide the required title to sue in trespass.

In the suit before this Honourable Court, the plaintiff claimed that he bought the suit kibanja on the 15th day of August, 1994 from a one AA. What is so interesting is that from the time the plaintiff claims to have bought the suit kibanja he has not shown any act of actual possession of the same. We indeed wonder whether the plaintiff is the actual owner of the suit kibanja as he claims, this is because there are three agreements of purchase and sale of the same kibanja. No wonder it is only the defendant who has shown actual possession of her late son’s kibanja as she has shown acts of development as she assigned a porter to make for her bricks,unfortunately the area committee members came and threatened to arrest the defendant’s porter hence stopping the work of brick making.

The deceased’s mother/defendant brought bricks and sand to develop her late son’s plot. That indeed the development was started but unfortunately unknown people came and demolished the house that had reached window level. The defendant in her elderliness did not lose hope but went ahead to reconstruct the structure that had been put down and indeed in 2003 completed a pit latrine. While all this was being done the person who claims to be owner of the suit land was not doing development none the less resistance that was being done by the LC members who we indeed see that have intentions of defrauding the late Y’s family of their kibanja.

What is interesting in this suit is that the LC is very much interested in the late Y’s kibanja no wonder they have been involved in a lot of illegal acts like stopping the defendant’s porter from laying bricks. The plaintiff even intimated to the defendant that he had no interest in the suit but was rather being used by the LC 1 executive hence bringing up this suit of trespass. No wonder it is quite interesting for this Honourable Court to note that a one XZ crafted an agreement DE1 of sale dated the 6th day of February, 2005 of the deceased’s kibanja/suit kibanja and during the hearing of this suit the above mentioned agreement was admitted/not contested by the plaintiff’s lawyer.

We wonder why someone who admitted that there was an agreement of sale dated the 6th day of February, 2005 giving someone else possession of the suit kibanja would actually bring a claim that the defendant trespassed on his kibanja and yet he states that the kibanja is owned by someone. This lives the suit that was instituted by the plaintiff in balance, with all that has been stated we clearly see that there is connivance of the LC 1 and the plaintiff to defraud the family of the late Y. To further prove that the plaintiff and his team are indeed intending to defraud the family of the late Y, during the hearing it was the plaintiff’s own testimony that he did not know the size of the kibanja in contention. We wonder how someone who has instituted a suit of trespass in this Honourable Court cannot know the size of the kibanja that was trespassed onto.

The plaintiff adduced evidence in form of receipts of Busuulu to prove that actually he is the owner of the kibanja in contention. But the receipts that were brought by the plaintiff do not show which kibanja he was paying for and further the date, month and year of payment are not shown.

In our view this lives the suit of trespass that was instituted by the plaintiff in this Honourable Court in balance and this Court should not be seen to aid this fraud being done by the plaintiff and his masterminds behind the curtains.

The second element for the suit of trespass to succeed is that Conduct of the defendant must be voluntary, intentional, reckless or careless. In the case of Plenty v Dillon (1991) 171 CLR 635, where the Defendant was a police officer charged with the duty to serve summons to the Plaintiff. He entered onto the Plaintiff's premises with the intent to serve the summons from the Court. The occupier refused consent. It was held that the police officer was not authorized by common law to enter upon private property without the proprietor’s consent and hence the suit of trespass succeeded against the defendant.

In the suit before this Honourable Court we do not see any of the acts of the defendant for having been voluntary, intentional, reckless or careless hence amounting to trespass on the suit kibanja as the owner the late Y was the son of the defendant. He left 5 children in the care of the defendant/their grandmother.
The acts of developing the suit kibanja were for the best interest of the deceased’s children that were left in the care of the elderly woman/their grandmother the defendant. This Honourable Court should further be alive to the fact that failure to prove element number 1 at a balance of probabilities automatically fails ingredient number 2. In our view the plaintiff has failed to prove element number 1 at a balance of probabilities and hence element 2 cannot succeed because there is no way the defendant would have conducted herself in a voluntary, intentional, reckless or careless manner on property that was never for the plaintiff but rather her late son’s property that the plaintiff and his master minds behind the curtains are intending to defraud her of.
Basing on the above mentioned authorities, the defendant cannot be found to be a trespasser since she is using the suit kibanja/property of her late son in trust for the benefit of the late’s 5 children.

In resolving issue 2, what are the remedies available to the parties?

Our humble appeal to this Honourable Court is that Court finds that the plaintiff failed to prove on a balance of probabilities that the defendant trespassed on the suit kibanja and therefore not entitled to any of the remedies sought. And we further appeal to this Honourable Court to find that the defendant is lawfully in occupation of the suit kibanja and not a trespasser and in the circumstances judgment be entered against the plaintiff with Costs.

UGANDAN POLICE SHOULD BE MORE RESPONSIVE TO ROAD ACCIDENTS

On Thursday, 10th September, 2015 at around 2:30 pm in Mukono near Centenary Bank Building a taxi from the nearby park hit a lorry heading to Kampala. It was such a tragic accident that the taxi had to be cut to remove the driver from the wreckage. What is so disappointing is that here was an accident in which the fuel tank of the lorry was damaged and fuel was flowing all-over the place on the Jinja-Kampala highway but Police did not come with or even call its fire brigade to be on standby in case of any fire outbreak. Worse still the taxi driver was still trapped in the wreckage but Police did not in any way use its expertise to remove him from the wreckage to save his life. But rather men around were struggling to pull the metal with their bare hands and piece of wood hitting right, left and centre. For close to one hour the men were still fighting to save a life. All police was doing was to take some recordings and guide traffic. I told one of my colleagues that the driver is likely not to survive basing on how long, without any ambulance nearby or even experts to remove him from the wreckage. No wonder just a few hours the following day, news was circulating that God for Bid the driver had died while being rushed to Kawolo hospital on a Police Pickup. The way we see police respond swiftly to calm riots should be the same way it responds to road accidents. My humble appeal goes to the IGP, that traffic police should be equipped with cutting devices to ease the saving of lives of people trapped in wreckages. Rather this habit of wanaichi rushing to the scene equipped with pangas and sticks delays the process of saving lives. And finally the police should not only come around to record statements but help in saving life. I commend that Police Officer in Eastern Uganda recently who kicked the wind screen of a mini bus that had overturned to ease the process of people getting out of the wreckage.

Garnishee Proceedings

GARNISHEE PROCEEDINGS/ATTACHMENT OF DEBTS

This is the process by means of which a judgment creditor is enabled to reach money due to the judgment debtor which is in the hands of a third person. The third person in whose hands the money from which is sought to be attached is called Garnishee and the necessary order is called the Garnishee order.
The Garnishee order changes the obligation, of the third party to pay the judgment debtor into an obligation to pay the judgment creditor directly.

When may garnishee proceedings be instituted?

They may be instituted by any person who has obtained a judgment or order for recovery or payment of money, by an assignee of a judgment debt or by representatives of the deceased judgment creditor who have been made parties to the action in which the judgment or order in question has been given or made.
It is important to note that only those debts owed by a third party to the judgment debtor can be attached under garnishee proceedings as was noted in the case of East African Airways V Lewis, in this case court held that only gratuity payable to an expatriate contract officer which was debt owing could be attached. It was also stated that it is not necessary that such debt is immediately payable
It is henceforth necessary to note that where an existing debt is payable by future instalments, the Garnishee order may be made to become operative on and when each instalment becomes due.
Similarly, money in hands of the Bank is attachable by Garnishee and the Bank has to show cause why the order nisi should not be made absolute by claiming a lien over the money in its possession.

Procedure

The Civil Procedure Rules SI 71-1 provide that Garnishee proceedings are commenced by way of application for an order for attachment of a debt which is made ex parte and served within 7 days onto the judgment debtor and the Garnishee. The application is made by Chamber Summons accompanied with a supporting affidavit of the decree holder or his/her advocate which must state the following;
The name and address of the Judgment debtor
Identify the judgment to be effected giving the amount remaining unpaid.
State to the best of information or belief of deponent is within jurisdiction and is indebted to the judgment debtor and address garnishee is a deposit taking institution having more than one place of business, give the name and address of the branch at which the judgment debtors account is believed to be held; the account number and if any information is not known to the deponent, it should be stated.  

The order made by the court (order nisi) will be made against the third person and the court will order that all debts owing or accruing from the garnishee to the judgment debtor be attached. Accordingly court may make a subsequent order that the garnishee appears before the court to show cause why he or she should not pay the debt to the decree holder or so much of it as is sufficient to satisfy the claim.
In the event that a decree nisi is granted, it is served on the garnishee and judgment debtor unless otherwise ordered within seven days. Service on the judgment debtor may be made either at the address of service if given by the debtor, on his/her advocates, leaving the order at his/her usual residence or place of business or such other manner as the court may direct.

Effects of the order

It is important to note that there is no attachment of the debt until service of the order nisi has been done.
If the Garnishee Bonafide pays to the judgment debtor the amount of debt before service, the order nisi is then absolute. This is due to the fact that in such a circumstance there is no longer any debt to which it can attach.
The service of the order nisi creates an equitable charge and the garnishee cannot pay the debt to anybody without incurring the risk of having to pay it again.

Order Absolute

Court has the discretion whether the decree nisi should be made absolute. In exercising its discretion, it must take into account other creditors as far as they are known to court. And before an order nisi is made absolute, there must be a debt presenti.
In the event of a Garnishee order the judgment creditor is placed in the same position as an assignee of the judgment debtor and will make him subject to the equities, which exist against the debtor. The garnishee may also obtain execution if the money is not paid in accordance with the order absolute.

Negotiated Agreement

DR. RICHARD SINGSON
Members/the negotiating team
Director:  Catherine/Asingwire.
Human resource manager: Mr. Benoit
Expert in health management system: Mr. Theophile
Marketing officer: Madam Janne
Legal Advisor: Jean de Dieu
Interests of the parties
Shared interests.
Professional success
Making money
Safety and security of the parties
Interest in staying in the same town.
DR. SINGSONs interests
Keeping the doctor WHITTAMORE in the clinic
Enforcing the non-competition clause to the contract.
keeping clients
Enforcement of the penalty clause that is 100% of the remaining two years on the employment contract.
Maintaining daily revenues.

Team for DR. WHITTAMORE
Mr. Whittamore (Pediatrician)
Dentist (Robert)
Pharmacist (Prosecutor Janvier)
Whittamores Lawyer (Prosecutor Minani)
Chemist (Judge Felisie)
Interests of the parties
Shared
Professional success
Earning a living
Safety and security
Operating and staying in the same town
Whittamore
Leaving Fairview clinic
Opening a competing business in the same town
Non enforcement of non-competition clause
Non enforcement of penalty of 100%
Leaving for the benefit of the clinic
Living with the children
Opposed interests
Fairview
Keeping Whittamore at the clinic
Enforcement of non-competition clause
Maintaining patients/clients
Enforcement of penalty of 100% for breach of contract
Maintaining daily revenues
Whittamore
Leaving Fairview clinic
Opening a competing business in the same town
Non enforcement of non-competition clause
Non enforcement of penalty of 100%
Leaving for the benefit of the clinic
Living with the children
Options for Mutual gains
Mr. Whittamore suggested leaving Fairview and open up another clinic in the same town, however Singson stated that opening up the clinic would lead to breach of contract which attracts penalties as provided there in. However, both parties agreed that for the benefit of maintaining a good relationship they can become share holders in the same new clinic opened such that the interests of both parties are catered for.

NEGOTIATION AGREEMENT
This agreement is made on the 3rd day of April, 2015 by Dr. Andrew Whittamore an employee (Pediatrician) at Fairview Clinic and Dr. Richard Singson the owner of the clinic
Whereas Dr. Andrew Whittamore and Dr. Richard Singson are in conflict of interests
Whereas Dr. Andrew Whittamore wants to leave Fairview clinic before the expiration of his contract and establish his own private medical clinic in the same town
Whereas Dr. Richard Singson wants to keep Dr. Andrew Whittamore at his clinic due to the none competition clause in his employment contract
Whereas Dr. Richard Singson desires to enforce a 100% penalty for breach of contract as per the employment contract
Article 1
Dr. Andrew Whittamore was supposed to work for Dr. Richard Singson at Fairview clinic for a payment (salary) on monthly basis.
Article 2
Dr. Andrew Whittamore is allowed to leave Fairview clinic and establish the same business in the same town
Dr. Richard Singson is entitled to invest 50% shares in the new business (clinic) opened by Dr. Andrew Whittamore
No penalty as earlier agreed in the contract of employment will be enforced on Dr. Andrew Whittamore by Dr. Richard Singson for leave of the clinic before expiry of the contract
Dr. Andrew Whittamore and Dr. Richard Singson will manage the new clinic as a joint venture
Dr. Andrew Whittamore is free to live in the same town and look after his children
Dr. Andrew Whittamore and Dr. Richard Singson must receive profits from the new clinic in equal shares annually
Article 3
Dr. Richard Singson must not enforce the none competition clause against Dr. Andrew Whittamore
Dr. Richard Singson must not enforce the 100% penalty on Dr. Whittamore when he leaves the clinic before the expiration of his contract of employment
Dr. Richard Singson must pay 50% start capital of 100,000,000 million Rwandan Francs equal to 50,000,000 million Rwandan Francs within 6 months starting from the date of signature
Dr. Andrew Whittamore pay 50% start capital of 100,000,000 million Rwandan Francs equal  to 50,000,000 million Rwandan Francs within 6 months starting from the date of signature
Failure to pay the start capital in time will lead loss of all rights as a share holder
Dr. Andrew Whittamore must make sure that the conflict between him and his wife does not affect the new business
Dr. Andrew Whittamore must help Fairview clinic in finding another pediatrician to replace him.
Article 4
Both parties must observe the terms of this agreement and in case of any breach the dispute will be settled in mediation
In case of a dispute arising out of this agreement each party must appoint one (1), a qualified doctor of 10 years standing to act as a mediator.
In case the mediation fails the parties must refer the dispute to court
Article 5
This agreement is governed by Rwandan Law
Article 6
The original/genuine version of this agreement is in English

SIGNED by the parties on the 6th day of April 2015

……………………………….                                                          ……………………………….
Dr. Andrew Whittamore  Pediatrician                 Dr. Richard Singson  Owner of Fairview

ADR agreements

Introduction
ADR is the name used for different ways of solving a dispute. For example, mediation, arbitration, adjudication and ombudsmen are all types of ADR. In many circumstances they are alternatives to going to court – which is why they are sometimes known as ‘alternative dispute resolution’. Alternative dispute resolution (ADR) consists of a variety of approaches to early intervention and dispute resolution. Many of these approaches include the use of a neutral individual such as a mediator who can assist disputing parties in resolving their disagreements.
The main ADR alternatives to civil litigation are negotiation, arbitration, conciliation and mediation.  The increased popularity of ADR methods has been due to the overloading of cases in the normal courts of and the disputing parties use these ADR methods because they are expeditious, private, and generally much less expensive than a trial.

We will draw much emphasis on looking at the parties’ agreement before taking a decision to go for ADR and after when a final settlement also known as final agreement in ADR is reached.

Mediation Is a voluntary, private and nonbinding process in which a neutral person (the mediator) assists the parties to reach a negotiated settlement. The mediator’s role is more pro active than that of a conciliator but a mediator does not have power to make any decision or award. Mediation is sometimes referred to as assisted negotiation and it employs a problem-solving approach to address conflict rather than the traditional, adversarial method. Mediation allows parties to control the dispute resolution process, rather than having a judge or some other official control it for them. Mediators are not decision-makers or judges and have no personal interest in the substantive outcome of a case but rather use their expertise in communication and negotiation to help the parties make effective, informed decisions on their own.

Negotiation
Negotiation is the processes in which parties that perceive one or more incompatibilities between them, try to find a mutually acceptable solution.Negotiation therefore is characterized by voluntariness of the parties where no third party is involved in imposing the resolution or a party forced to participate. Negotiation can involve two, three or dozens of parties and is Non-adjudicative since it involves only the parties and the outcome of a negotiation is reached by the parties together without recourse to a third-party neutral.

Arbitration
Arbitration is a procedure applied by parties to the dispute requesting an arbitrator or a jury of arbitrators to settle a legal, contractual dispute or another related issue. Arbitration is characterized by voluntary participation of the parties with the presence of a third party who as a private judge imposes a resolution. Arbitrations often occur because parties to contracts agree that any future dispute concerning the agreement will be resolved by arbitration. By employing arbitration, the parties lose their ability to participate directly in the process. In addition, parties in arbitration are confined by traditional legal remedies that do not encompass creative, innovative, or forward-looking solutions to business disputes.

Parties’ agreement before ADR
Since ADR is a private dispute settlement mechanism, parties are at free will to choose whether to settle a dispute through one of the methods of ADR. As a general rule, in all matters governed by arbitration, court shall not intervene except where the law provides. Which means that an arbitration agreement put in the parties’ contract is binding on them as it forms a contract. Article 64 provides that Contracts made in accordance with the law shall be binding between parties. They may only be revoked at the consent of the parties or for reasons based on law. They shall be performed in good faith. Similarly an agreement by parties to settle a dispute by mediation is binding on them until it fails then other forms of ADR or court can be involved.

Power to stay proceedings
Mediation and arbitration clauses are now regularly included in commercial contracts in Rwanda as the appropriate mechanism for resolving disputes. The clause usually stipulates that the parties will refer any dispute that arises out of the contract to either mediation or arbitration, where these processes do not result in a settlement the parties are still free to have court proceedings. However important to note is that in arbitration in Rwanda a party can only appeal on the procedural elements but rather not substantive elements of the dispute.

The court before which an action regarding an arbitration agreement is seized shall submit it to the arbitration, if a party so requests, before submitting his or her statements on the substance of the dispute, unless it finds that the agreement is null and void, inoperative or incapable of being performed. Where an action referred to has been brought in a court but before being heard, arbitral proceedings may nevertheless be commenced or continued, and a decision may be taken while the issue is pending before the court. In that case, the action submitted to the court shall be null and void. Similarly if parties had a mediation agreement in their contract courts can distance themselves from hearing such a dispute until a proper mediation process has been concluded.

Stay of proceedings and ADR Clauses
The enforceability of a dispute resolution clause was definitively established by the High Court in Health Service Executive v Keogh, trading as Keogh Software. In this case, the defendant had an extensive software services and maintenance contract with the plaintiff, the HSE, which was at the time of the case in use at approximately 180 sites around the State in connection with radiology, accident and emergency and hospital billing. A dispute arose between the parties, in which the defendant asserted that it had been underpaid by the HSE, and the defendant then ceased to supply the support staff for the software system. The HSE then requested the defendant to supply it with the computer source codes for the software system, which the defendant refused. A contract between the parties included a dispute resolution clause, under which the defendant agreed that the source code, which were held by a third party company, could be released to the HSE ―on the decision of an independent expert whose appointment will be mutually agreed, or, failing mutual agreement, who will be appointed by the President for the time being of the Law Society. The dispute resolution clause also provided that:

The independent expert‘s decision will be final and binding on all parties to this agreement and shall not be subject to appeal to a court in legal proceedings except in the case of manifest error.
Both parties applied to the High Court for interlocutory relief, the HSE seeking a mandatory injunction requiring the defendant to supply the support services contracted for, the defendant seeking to be paid the fees it claimed were owed and to have the dispute resolution clause and expert determination process suspended. Laffoy J stated, in applying the principles set out in the Via Networks case, that there was no reason for the parties to depart from the dispute resolution mechanism provided for in the agreement, and she refused all relief applied for by both parties. She noted that ―an examination of the... agreement clearly demonstrates that its terms are designed to facilitate speedy resolution of a dispute. In other words the principle in these two cases in as much as are English we would wish be instructive in submission, it is clearly stated that where parties agree to use any form of ADR for settlement of a dispute it shall be binding on them, neither party can depart from the earlier agreed settlement mechanism and this has also been the practice in Rwanda.

Severability of mediation and conciliation clauses
In relation to arbitration, the doctrine of severability means that even where the agreement containing an arbitration agreement is alleged to be invalid, the arbitration agreement itself can be valid and thus the question as to the validity or otherwise of the main agreement can be referred to arbitration. In Doyle v Irish National Insurance Co plc, Kelly J held that the arbitration clause survived the voidance of the contract and the defendant was, accordingly, entitled to have the dispute referred to arbitration.
The English Court of Appeal placed a limit on the doctrine of severability in the case of Soleimany v Soleimany in which it was decided that contracts for illegal adventures which are illegal or tainted in their very purpose (such as a contract of co-operation between highwaymen) could not be the subject of arbitration. However, the Court of Appeal in Fiona Trust & Holding Corporation & Ors v Yuri Privalov & Ors required the parties in this case to proceed to arbitration where one party to the contract containing that arbitration clause had purported to rescind the contract as a whole following allegations of bribery. It was held that if a contract were to be invalid for reasons such as bribery, unless that bribery relates specifically to the arbitration clause, the clause survives and the validity of the contract as a whole is to be determined by the arbitrators, not the court. In doing so, it stressed the severability of an agreement to arbitrate from the larger contract of which it was part.

Similarly in Rwanda as seen in Article 7 of law n°005/2008 of 14/02/2008 on arbitration and conciliation in commercial matters and Article 64 of LAW N°45/2011 OF 25/11/2011 GOVERNING CONTRACTS in Rwanda an arbitration agreement is binding on the parties and is not affected by the validity of the main contract itself. 

After ADR

The enforceability of outcomes is an important feature of dispute resolution processes. A decision of a court is legally binding and is enforceable by the parties to the dispute and enables the final resolution of a dispute. It is important to note that mediation and conciliation processes are not binding in themselves, but agreements reached through those processes can be made binding. For example, a mediated agreement can be in a binding contract, which can then be enforced in court. It has been argued that mediated agreements may prove to be longer lasting than imposed settlements, such as court orders, because the parties have voluntarily participated in drawing up the terms of the agreement and are, therefore, more likely to adhere to the terms of the agreement. Similarly in Rwanda mediation and negotiation final settlements/agreements are not binding on the parties and only become binding when the parties intend to make them so by way of signature hence making a contract.

In Rwanda, An arbitral award, irrespective of the country in which it was made, shall be recognized as binding. However, this shall not be respected if the country in which the award was issued does not respect the provisions with reference to cases decided in Rwanda. Similarly an interim measure issued by an arbitral tribunal shall be recognized as binding and, unless otherwise provided by the arbitral tribunal, enforced upon application to the competent court, irrespective of the country in which it was issued but subject to the conditions of reciprocity of the interim measures taken by arbitral tribunals in Rwanda.

Conclusion

All in all, mediation and negotiation agreement as forms of dispute settlement can be appealed in courts of law in Rwanda but Arbitration is not appealable and a dissatisfied party can only do so where there was gross violation of the arbitration procedures.

BIBLIOGRAPHY
Laws

LAW N° 005/2008 OF 14/02/2008 on Arbitration and Conciliation IN COMMERCIAL MATTERS in Rwanda
LAW N°45/2011 OF 25/11/2011 GOVERNING CONTRACTS in Rwanda
Health Service Executive v Keogh, trading as Keogh Software [2009] IEHC 419
Doyle v Irish National Insurance Co plc [1998] 1 I.R. 89
Fiona Trust & Holding Corporation & Ors v Yuri Privalov & Ors [2007] E.W.C.A. Civ. 20 (Court of Appeal, January 24, 2007]. See Carey New Guidance on the scope of arbitration clauses (2007) 14(4) CLP 72

Writings

Alternative Dispute Resolution Leaflet, written by  Margaret Doyle published by Advice Services Alliance, June 2012 (http://asauk.org.uk/wp-content/uploads/2013/08/Why-use-ADR.pdf)
Alternate Dispute Resolution Handbook at pg.1 (http://www.opm.gov/policy-data-oversight/employee-relations/employee-rights-appeals/alternative-dispute-resolution/handbook.pdf)
http://www.mediate.com/articles/sgubinia2.cfm
Dispute resolution guide by KIRKPATRICK & LOCKHART NICHOLSON GRAHAM LLP, 2005 (http://www.klgates.com/files/Publication/d4e79514-1038-414f-8394 7c2c22272645/Presentation/PublicationAttachment/2b825492-c6d1-46d6-b2db 7f913295536a/Dispute_Resolution.pdf
http://www.lawreform.ie/_fileupload/consultation%20papers/cpadr.pdf
http://www.cs.uu.nl/docs/vakken/vm/college9.pdf
http://assets.cambridge.org/97805217/35216/excerpt/9780521735216_excerpt.pdf

Alternative Dispute Resolution

What is ADR?
ADR is the name used for different ways of solving a dispute. For example, mediation, arbitration, adjudication and ombudsmen are all types of ADR. In many circumstances they are alternatives to going to court – which is why they are sometimes known as ‘alternative dispute resolution’. Alternative dispute resolution (ADR) consists of a variety of approaches to early intervention and dispute resolution. Many of these approaches include the use of a neutral individual such as a mediator who can assist disputing parties in resolving their disagreements.

Advantages for using ADR

It is cheaper
Mediators will commonly claim that mediation is cheaper than going to court. Mediation can be much cheaper than taking legal action as it does not require filing fees in order for a dispute to be lodged like in court where filing fees is a must.

Quicker
Some forms of ADR can be quicker than going to court. If you are involved in a small claim in court, for example, your case can go to mediation sooner than a hearing can be arranged. ADR processes do not follow strict rules of civil procedure and this helps the parties to settle disputes urgently.

Not adversarial
Going to court can risk making a bad situation worse. That’s because the legal system is adversarial – it puts one side against the other, and at the end there is a winner and a loser.
Using ADR like in mediation, where you talk to each other to find a solution you can both live with, can help preserve an ongoing relationship.

Getting what you want
There is a much wider range of outcomes with ADR than with courts. Mediation and Negotiation may well be more appropriate than court if what you want is an apology, an explanation, or a change in policy or practice by an organisation.

Flexibility
ADR processes are usually more flexible than the court process. Mediators will usually bring both parties together for a face-to-face discussion. However in negotiation, parties will try to negotiate a deal through a series of phone calls. In ADR like negotiation it is by parties’ choice of preference in sorting out a problem either by phone, through letters or emails, or face to face. Whereas court system follows strict rules of procedure that are brought in force by law and cannot be avoided save for circumstances where they have been amended.

Longer lasting
When it works, mediation and negotiation can produce a solution that satisfies both sides. Mediators encourage people in dispute to have creative discussions about a range of options. Rather than just aiming for an acceptable compromise, they will try to end up with an agreement which reflects the best possible outcome for all involved. This can have an effect on what happens afterwards. Research indicates that agreements reached through mediation are more likely to work out in practice, and to last longer, than those imposed by a court.
Confidentiality
Since ADR is a private settlement mechanism and is not done in open the dispute at hand remains private and is not published in public domains like in court system that can be open. This has helped in the protection of the image of investors in commercial matters in Rwanda.

Disadvantages for using ADR
There are some situations when ADR may not be appropriate, and may even be risky for one of the parties. It is a good idea to get some independent legal advice about this. It is important for solicitors and legal advisers to use their professional judgement in each case, but these are some of the factors you should think about:
Power differences
There may be an imbalance of power between the parties, which could make face-to-face ADR unfair. For example, mediation between an individual and a large organisation such as a local authority or company where the size and resources of the organisation could put the individual at a disadvantage, this doesn’t always mean that mediation is inappropriate, but it’s something to consider.
Urgency
There may be an urgent need (for example if you are threatened with being evicted or losing your home) which requires an immediate legal remedy. ADR does not give interim remedies like injunctions and hence forth party can lose his property in continued violation of his rights even during settlement of dispute in ADR and requires court intervention to stop such violation.
Reluctant opponent
ADR requires both parties to be willing to give it a try, so if the other side is not willing to participate, you might need to go to court instead. The unwillingness to participate delays the process of effective settlement of disputes, because ADR does not have compelling measures to bring by force parties who are not compliant.
No precedent
Agreements reached in mediation do not act as precedents in future cases. They are usually private and confidential.
If you need to establish a legal point that other people can rely on, you may need to go to court.

No ruling on legal rights and entitlements
You cannot get a ruling on your legal rights, including discrimination and human rights, in ADR processes. You can still resolve a dispute about these issues, but you won’t get a decision about whether or not the law has been broken.

Lower compensation amounts
Although arbitrators can make compensation awards, they are often lower than is likely to be achieved in court. Research shows that in arbitration of small claims cases, settlement amounts tend to be lower than amounts claimed. If you need a significant sum of money in compensation, then you might get a higher award through the court.
Binding decisions
Arbitration, and often adjudication, are processes that result in legally binding decisions. This means that you cannot reject the decision if you don’t like it, and you can’t take the claim to court instead. Arbitration in Rwanda can only be appealed on procedural grounds but rather not the substantive elements of the settlement.
Quality control
There are no consistent quality standards or regulation for ADR providers, so it can be hard to know how to choose a good service.
Costly
Arbitration in Rwanda like in international commercial matters where the seat can be in any country of parties’ choice is costly in terms of buying air tickets for participants, reservation of hotels and remuneration of arbitrators. Article 65 provides for costs in Arbitration in Rwanda.
Bibliography
Laws
LAW N° 005/2008 OF 14/02/2008 on Arbitration and Conciliation IN COMMERCIAL MATTERS
Reports
Alternative Dispute Resolution Leaflet, written by  Margaret Doyle published by Advice Services Alliance, June 2012 (http://asauk.org.uk/wp-content/uploads/2013/08/Why-use-ADR.pdf)

Alternate Dispute Resolution Handbook (http://www.opm.gov/policy-data-oversight/employee-relations/employee-rights-appeals/alternative-dispute-resolution/handbook.pdf)