Wakilii

Wandera & 2 Ors v Mugenyi & Anor (Civil Appeal No. 061 of 2009)

Court of Appeal · [2018] UGCA 25 · 2018 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
First appeal from a High Court ruling on execution of a decree
Decision
Appeal dismissed; High Court ruling on execution upheld

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Cited — treatment unverified cited in 4 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Court of Appeal dismissed the appeal against a High Court ruling on execution. Although the appellants' kibanja was sold before expiry of the statutory 30-day notice period under O.22 r.64, the Court held that the court bailiff—not the judgment creditor—was the principal actor responsible for the irregular sale and any excessive attachment, and the bailiff had rightly been struck out for not being a party under s.35 of the Civil Procedure Act. The proper remedy was a separate suit against the bailiff to account for excess proceeds or undervaluation. The Court found no actual fraud attributable to the respondents. All grounds failed; each party was ordered to bear its own costs.

Facts

The first respondent obtained a High Court judgment against the appellants for trespass on his access road, recovering nominal and general damages, interest and costs (a decretal sum of about Ug shs 7,982,379). To enforce the decree, the first respondent caused attachment of the appellants' kibanja in Hoima Town, on which stood a boarding primary and secondary school, dormitories and offices, valued well above the decretal sum. The property was advertised on 30 January 1999 and sold by public auction to the second respondent on 19 February 1999—within 19 days, less than the statutory 30-day period. The court bailiff who conducted the execution had agreed a payment schedule with the appellants which was not honoured. The appellants applied to the High Court to set aside the sale, but the bailiff was struck out as a party under s.35 of the Civil Procedure Act. The trial Judge dismissed the application, holding the bailiff responsible for any premature sale or excessive attachment, and found no fraud by the respondents. The appellants appealed.

Issues

  1. Whether the trial Judge erred in declining to nullify the sale of the suit property as illegal for non-compliance with the statutory 30-day notice period under O.22 r.64 of the Civil Procedure Rules.
  2. Whether the first respondent (judgment creditor) should be held liable for excessive attachment in execution of the decree.
  3. Whether the evidence established that the respondents were parties to a fraudulent sale of the attached property.

Orders

  • All grounds of appeal dismissed.
  • Appeal dismissed.
  • Each party to bear its own costs.

Key headnotes

Execution — Sale of Property — Statutory Notice Period under O.22 r.64 CPR
A kibanja with developments constitutes immovable property for the purposes of execution, and no sale may take place until after expiry of at least thirty days from the date the public notice of sale is advertised under Order 22 rule 64 of the Civil Procedure Rules.
Execution — Liability of Court Bailiff — Improper Joinder under s.35 Civil Procedure Act
A court bailiff is neither a party nor a representative of a party to a suit and cannot properly be joined in proceedings brought under section 35 of the Civil Procedure Act; where wrongful or fraudulent execution by a bailiff is alleged, the proper procedure is to file a separate suit against the bailiff.
Execution — Excessive Attachment — Liability of Bailiff Not Judgment Creditor
Where property far exceeding the decretal sum is attached and sold, it is the court bailiff who must account for the proceeds of any excessive execution, undervaluation or excess; the judgment creditor can only receive what is due under the decree and is not liable for excessive attachment.
Execution — Setting Aside Sale — Requirement of Substantial Injury
Material irregularity or fraud in publishing or conducting a sale is not, standing alone, a ground for setting aside the sale; the applicant must prove substantial injury occasioned by the irregularity or fraud, and such injury cannot be assumed from the mere fact of irregularity.
Execution — Proof of Fraud — Actual Fraud Attributable to Transferee
An allegation of fraud in execution proceedings must be proved to the required standard and must amount to actual fraud attributable to the transferee; witnessing the registration of a company does not establish an interest in or fraud by the witness.
Proof of Fraud — Procedure under s.34(2) Civil Procedure Act
Where fraud is alleged in proceedings under section 34 of the Civil Procedure Act, a party who fails to apply to treat the application as a suit under section 34(2) so as to adduce oral evidence and cross-examine deponents cannot afterwards blame the court for not finding fraud.

Legislation cited (6)

  • Civil Procedure Rules SI 71-1 O.22 r.64
  • Civil Procedure Rules SI 71-1 O.22 r.71
  • Civil Procedure Act s.34
  • Civil Procedure Act s.34(2)
  • Civil Procedure Act s.35
  • Judicature (Court of Appeal Rules) Directions SI 13-10 r.30(1)(a)

Cases cited (15)

  • Uganda Railways Corporation v Ekwaru D.O and 5104 Others (Civil Application No. 185 of 2007)
  • Moses Kamya & Liberty Construction Ltd (Miscellaneous Application No. 271 of 2010)
  • Makula International Ltd v His Eminence Cardinal Nsubuga and Rev. Fr. Dr. Kyeyune (Civil Appeal No. 4 of 1981)
  • Lukwago versus Bawa Singh & another [1959] EA 282
  • Marko Matovu vs Mohamed Seviri [1979] HCB 174
  • Tifu Lukwago vs Kizza and another [1999] EA 142
  • Frederick J.K Zaabwe v Orient Bank Ltd (Civil Appeal No. 4 of 2006)
  • Hannington Wasswa & Anor v Maria Onyango Ochola & 3 Ors (Civil Appeal No. 22 of 1993)
  • Francis Nansio Micah v Nuwa Walakira (Civil Appeal No. 23 of 1994)
  • Abdillah Shrwa v Sheikh Mohamed Hay Ahmed (Civil Appeal No. 1 of 1976)
  • Francis Nansio Micah v Nuwa Walakira (Civil Appeal No. 24 of 1994)
  • Blasio Simiyu vs Wanyala Sinion (1982 - 1988) 1 KAB 630
  • Amrit Goyal v Harichand Goyal & 3 Ors (Civil Application No. 109 of 2004)
  • Haba Group (U) Ltd & Others v Uganda Broadcasting Corporation (Civil Appeal No. 3 of 2014)
  • Ajani v Okusaga (Keaton & Sheridan) at page 119
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.