Wakilii

Okwi v Kirunda (Civil Appeal No. 35 of 2008)

Court of Appeal · [2018] UGCA 28 · 2018 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Civil appeal from a High Court ruling in execution proceedings dismissing an application to set aside a sale of attached property
Decision
Appeal allowed; sale of Block 216 Plot 2732 declared null and void and special certificate of title ordered cancelled

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Holding

The Court of Appeal dismissed the preliminary objection, holding that the purchaser, who was not a party to the original proceedings, did not render the appeal incompetent, distinguishing prior authorities. On the merits, it held that compliance with section 48 of the Civil Procedure Act is mandatory: a duplicate or special certificate of title must be deposited in court before sale, the judgment debtor must be served and given opportunity to show cause, and sale must be by public auction. As none of these requirements were met, and the special certificate was issued after the sale and by private treaty, the sale was illegal, null and void. The appeal was allowed and the sale set aside.

Facts

The appellant obtained a loan of UGX 20,000,000 from Victoria Finance Company Limited, pledging his land at Buye Block 216 Plot 2729 as security. Upon default, the lender obtained summary judgment and a decree. After failed attempts to set the judgment aside and an unhonoured consent judgment, the lender proceeded to execute. An initial sale to Moses Lubega was rescinded when it emerged the property comprised two separate titles, Plot 2729 and Plot 2732, with Plot 2732 separately mortgaged to Stanbic. The judgment creditor then applied for attachment and sale of both plots. A warrant was issued and the property advertised and sold to M/s Good Rest Ltd for UGX 50,000,000 on 20 February 2006. At the time of sale no duplicate or special certificate of title for Plot 2732 was in court; the special certificate was issued on 8 May 2006, after the sale. The appellant remained in possession of the duplicate title and was not served with the order of attachment or given opportunity to show cause. The High Court upheld the sale as valid, prompting this appeal.

Issues

  1. Whether the appeal was incompetent for failure to serve a notice of appeal on M/s Good Rest Ltd as a person directly affected under Rule 78(1).
  2. Whether the execution and sale of the appellant's land comprised in Block 216 Plot 2732 was valid and lawful given non-compliance with section 48 of the Civil Procedure Act.
  3. Whether the trial Judge erred in ordering the appellant to deliver his certificate of title or, alternatively, ordering issuance of a special certificate of title without setting aside the sale.

Orders

  • The preliminary objection is dismissed.
  • Ground 1 of the appeal is allowed.
  • The appeal is allowed with costs here and below.
  • The judgment of the High Court is set aside.
  • The sale and transfer of the land comprised in Kyadondo Block 216 Plot 2732 was illegal, null and void ab initio.
  • The Registrar of Titles cancels the special certificate of title issued to M/s Good Rest Ltd on 8th May 2006 for land comprised in Kyadondo Block 216 Plot 2732.

Key headnotes

Appeals — Court of Appeal — Service of Notice of Appeal under Rule 78(1) — Persons Directly Affected
Where a person with an interest in the subject matter was not a party to the original High Court proceedings, the failure to serve them with the notice of appeal does not render the appeal incompetent, provided the parties to the challenged decision are before the court.
Execution — Sale of Immovable Property — Mandatory Deposit of Certificate of Title before Sale
Under section 48(1) of the Civil Procedure Act and Order 22 rule 51(1), a duplicate certificate of title or a validly issued special certificate of title must be deposited in court before a sale of immovable property in execution; this requirement is mandatory and a sale conducted without it is illegal, null and void.
Execution — Special Certificate of Title — Conditions for Issuance under Section 48(4)
A special certificate of title may only be issued where the court is satisfied, after calling on the judgment debtor to appear and show cause, that the duplicate certificate is lost, destroyed or wilfully withheld; its issuance is exceptional and a special certificate issued after the sale and without these prerequisites is erroneous.
Execution — Sale of Immovable Property — Requirement of Public Auction under Order 22 rule 62
Under Order 22 rule 62 of the Civil Procedure Rules a sale in execution must be conducted by public auction unless the court directs otherwise; a sale conducted in effect by private treaty contravenes the law.
Title — Effect of Illegality on Transfer — Restoration to Owner
An illegality in execution vitiates the transfer of title, so that the sold property remains the property of its owner; a court of law cannot sanction what is illegal, and illegality once brought to the attention of the court overrides all questions of pleadings.

Legislation cited (12)

  • Civil Procedure Act s.48(1)
  • Civil Procedure Act s.48(2)
  • Civil Procedure Act s.48(3)
  • Civil Procedure Act s.48(4)
  • Civil Procedure Rules Order 22 rule 51(1)
  • Civil Procedure Rules Order 22 rule 51(2)
  • Civil Procedure Rules Order 22 rule 62
  • Registration of Titles Act s.71
  • Judicature Act s.33
  • Judicature Act s.14(2)
  • Judicature (Court of Appeal Rules) Direction Rule 78(1)
  • Judicature (Court of Appeal Rules) Direction Rule 82

Cases cited (13)

  • Sam Kirembwe v Attorney General (Civil Application No. 53 of 2004)
  • Nvasio Micah v Nuwa Walakira (Civil Appeal No. 14 of 2002)
  • The Environment Action Network Ltd v Attorney General (Civil Application No. 63 of 2003)
  • Nyine Bitahwa v L. I. Ndyanabo (Election Petition Appeal No. 14 of 2002)
  • Horizon Coaches Ltd v Francis Mutabazi (Civil Appeal No. 20 of 2001)
  • Rosemary Eleanor Karamagi v Angoliga Malimouda (Miscellaneous Application No. 733 of 2005)
  • Katondwaki v Biraro, 1977 HCB 36
  • Gandesha v Lutaava (Civil Appeal No. 14 of 1989)
  • Sinba (K) Ltd v Uganda Broadcasting Corporation (Civil Appeal No. 3 of 2014)
  • James Kabaterine v Charles Oundo (Civil Suit No. 177 of 1994)
  • Makula International Ltd v. His Eminence Cardinal Nsubuga & Anor, (1982) HCB 11
  • Kanoonya David v Kivumbi (Civil Suit No. 616 of 2003)
  • Buso Foundation Ltd v Bob Mate Phillips (Civil Appeal No. 40 of 2009)
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