Wakilii

Muhenda & 3 others v Kamuje (Civil Appeal 9 of 1999)

Supreme Court · [2000] UGSC 7 · 2000 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second appeal to the Supreme Court from a High Court appellate decision arising out of objection-to-execution proceedings before a Grade I Magistrate
Decision
Appeal dismissed; High Court decision restoring the decree-holder's right to execute over the whole suit property affirmed and execution ordered to proceed

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Cited — treatment unverified cited in 2 (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 Supreme Court dismissed the appeal, upholding the High Court's reversal of a Grade I Magistrate's order that had upheld objections to execution. The Court held that, in the exceptional circumstances of the case, the High Court's powers under Order 39 rules 3, 17 and 27 of the Civil Procedure Rules enabled it to deal with the magistrate's ruling as a whole and to make orders in favour of the decree-holder even though she had not cross-appealed, and although some objectors had arguably not filed a memorandum of appeal. The appellate Judge had properly determined the objection on possession and interest, and his visit to the locus in quo did not amount to taking additional evidence.

Facts

In 1976 the respondent sued her father in a Grade II Magistrate's Court over a disputed kibanja and obtained judgment that the land was hers. Her later attempts to obtain vacant possession were frustrated by persons who had settled on the land after the decree. When she applied to execute the decree, six occupants objected to the attachment, claiming the land they held fell outside the suit property and belonged to estates of deceased persons tenanted from the municipal council. The Grade I Magistrate, after a lost locus visit, upheld the objections of the first four objectors and dismissed those of the fifth and sixth. On appeal, the High Court (Rajasingham J) re-evaluated the evidence, visited the locus, found the suit property to be a single defined parcel, dismissed all the objections and ordered execution. Four objectors appealed to the Supreme Court, contending principally that three of them had not been parties to the High Court appeal and that the respondent had not cross-appealed.

Issues

  1. Whether the High Court, sitting on appeal, could interfere with the Grade I Magistrate's order upholding the objections of objectors who had not filed a memorandum of appeal, in the absence of an appeal or cross-appeal by the decree-holder.
  2. Whether the appellate Judge applied the correct principles in determining objection-to-execution proceedings under Order 19 of the Civil Procedure Rules.
  3. Whether the appellate Judge erred by visiting the locus in quo and thereby taking additional evidence contrary to Order 39 rules 22, 23 and 24 of the Civil Procedure Rules.

Orders

  • Appeal dismissed with costs to the respondent here and in the court below.
  • The objection by the first four objectors is dismissed with costs to the respondent; the orders of the appellate High Court and of the Grade I Magistrate in respect of the 5th and 6th objectors remain undisturbed.
  • Execution is issued in favour of the respondent to secure vacant possession of, and eviction of persons occupying, the suit property decreed to her in Civil Suit No. MFP 48 of 1976, with boundaries as described by the appellate Judge.
  • The execution is to be carried out with due diligence and speed.

Key headnotes

Civil Procedure — Appeals — Powers of the appellate court — Order 39 r.27 CPR — Decree in favour of party who has not appealed or cross-appealed
In an exceptional case, the High Court in its appellate jurisdiction may, under Order 39 rule 27 of the Civil Procedure Rules, pass such a decree as ought to have been passed or as the nature of the case requires, even where the decree operates in favour of a party who has filed no appeal or cross-appeal against the lower court's decision.
Civil Procedure — Appeals — Parties to the suit not made parties to the appeal — Order 39 r.17 CPR — Effect of representation
Where a person who was a party to the suit but not made a party to the appeal is interested in the result, the court should under Order 39 rule 17 direct that the person be made a respondent; but a failure to follow that procedure does not occasion injustice where the interested party was in fact represented and heard at the hearing of the appeal.
Civil Procedure — Execution — Objection proceedings — Order 19 CPR — Possession and interest as the decisive question
In an objection to attachment in execution of a decree, the sole question to be investigated is whether, at the date of attachment, the property was in the possession of the judgment debtor or the objector and, if the objector, whether held on the objector's own account or in trust for the judgment debtor; questions of legal right and title are relevant only so far as they bear on that question of possession.
Civil Procedure — First appeal — Duty to re-evaluate evidence
A first appellate court is under a duty to subject the whole of the evidence to a fresh and exhaustive examination, to weigh conflicting evidence and to reach its own conclusions, while making due allowance for the trial court's advantage of having seen and heard the witnesses.
Civil Procedure — Appeals — Visit to locus in quo — Whether additional evidence — Order 39 rr.22-24 CPR
An appellate court's visit to the locus in quo is permissible only in exceptional circumstances; where the purpose is merely to match the boundaries described in the trial evidence with the ground rather than to receive fresh testimony, the visit does not constitute the taking of additional evidence requiring compliance with Order 39 rules 22 to 24.

Legislation cited (13)

  • Civil Procedure Rules O.39 r.1
  • Civil Procedure Rules O.39 r.2
  • Civil Procedure Rules O.39 r.3
  • Civil Procedure Rules O.39 r.17
  • Civil Procedure Rules O.39 r.22
  • Civil Procedure Rules O.39 r.23
  • Civil Procedure Rules O.39 r.24
  • Civil Procedure Rules O.39 r.27
  • Civil Procedure Rules O.19 r.55
  • Civil Procedure Rules O.19 r.56
  • Civil Procedure Rules O.19 r.57
  • Civil Procedure Rules O.19 r.58
  • Civil Procedure Rules O.19 r.60

Cases cited (9)

  • Sokempex Interstate Co. Ltd. v. Eurafro General Import and Export Co. Ltd. (1981) HCB 75
  • Chotabhai M Patel v. Chatrabhai Patel & Anor. (1958) E.A. 743
  • Harilal & Co. v. Buganda Industries Ltd. (1960) E.A. 318
  • Uganda Mineral Waters Ltd. v. Amin Piran and Kampala Minerals Ltd. (1994 - 95) HCB. 87
  • Selle v. Associated Motor Boats Co. Ltd. (1968) E.A. 223
  • Sanyu Lwanga Musoke v Sam Galiwango (Civil Appeal No. 48 of 1995)
  • Alice Janet Namisango v. Chrisestom Galiwango (1986) HCB. 37
  • James Nsibambi v. Lovinsa Nankya (1986) HCB. 87
  • Pandya v. R. (1957) E.A. 336
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.