Muwanga v Kyeyune (Civil Appeal No. 12 of 2001)
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Holding
The Supreme Court dismissed a second appeal arising from objection proceedings. It held that the alleged non-payment of court fees was at most a minor procedural defect, curable in the interest of justice under the proviso to Rule 6 of the Court Fees Rules, and did not nullify the proceedings. On the merits, the suit property had vested absolutely in the judgment-debtor's wife and children by a 1993 deed of gift, years before the debt arose, so it never formed part of his estate and was not liable to execution. In any event, execution against the deceased's legal representatives required a notice to show cause under Order 19 rule 19(1)(b), which was never served. Appeal dismissed with costs.
Facts
In 1997 the appellant sued Godfrey Kisamba to recover a debt of about shs.18,300,000, obtaining a consent judgment on 11 August 1997. Earlier, on 17 August 1993, Godfrey Kisamba had by deed of gift donated his house at Mengo Kisenyi and a kibanja at Bakuli to his wife Christine Kisamba and their children. Godfrey Kisamba died on 17 January 1998. His widow and his brother obtained letters of administration of his estate in April 1999. A warrant of attachment over the house issued on 3 September 1999, and the house was sold on 10 November 1999. Christine Kisamba, who had become a co-administrator of the estate, instituted objection proceedings on 16 December 1999 seeking to stop the attachment and sale and to nullify the sale. She had not been served with notice of the intended sale and only learned of it when court bailiffs threatened to evict her from the property, shortly after the purported sale.
Issues
- Whether the objection proceedings were a nullity because court fees were allegedly not paid when they were instituted.
- Whether the attached property, having already been sold in execution, could still be released from attachment.
- Whether the court ought to have entertained objection proceedings concerning property that had already been disposed of in execution.
Orders
- Appeal dismissed.
- Costs of the appeal awarded to the respondent.
Key headnotes
Legislation cited (5)
- Civil Procedure Rules O.19 r.55
- Civil Procedure Rules O.19 r.51
- Civil Procedure Rules O.19 r.19(1)(b)
- Constitution of Uganda 1995 art.126(2)(e)
- Court Fees, Fines and Deposits Rules (Cap 41) r.6
Cases cited (5)
- UNTA Exports Ltd v Customs (1970) EA 648
- Malela International v Cardinal Emmanuel Nsubuga (1982) HCB 11
- Yese Ruzambira v Kimbowa Builders & Construction Ltd (1976) HCB 278
- Transship (u) Ltd vs G. H. Combine (p) Ltd and F. Mungereza, Excs No. 14 of 1999 (1994) IV KALR 22
- Johda v Kirpar & Another (1975) EA 225