Bamu Partners and Auctioneers v Attorney General (Civil Appeal 3 of 2002)

Supreme Court · [2003] UGSC 54 · 2003 Appeal Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second appeal in taxation proceedings, from the Court of Appeal's affirmance of the Principal Judge's reversal of the taxing officer's allowance of the bailiff's fees.

Decision

Appeal dismissed; the taxing officer's allowance of the bailiff's fees was not restored.

The full judgment

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Holding

The Supreme Court dismissed a court bailiff's appeal against the disallowance of fees claimed for the attachment of shares. The Court held that attachment of shares not in the judgment debtor's possession must be effected by a written prohibitory order under Order 19 r 43, a copy of which is affixed at the court house and another sent to the corporation's proper officer. As the party claiming fees for that work, the appellant bore the onus of proving compliance with these mandatory provisions, and the record showed he had not served the prohibitory order. The Court affirmed that an appellate court may consider a point of law suo motu, and that the failure to address every ground of appeal occasioned no miscarriage of justice.

Facts

In HCCS No. 476 of 1999 the Attorney General and Uganda Commercial Bank Ltd obtained judgment against Westmont Land (Asia) BHD for Shs. 32,272,821,041, represented by Westmont's 49% shareholding in the Bank. On 1 September 1999 the appellant, a court bailiff and auctioneer, applied to the Deputy Registrar for a warrant of attachment and sale of those shares. In subsequent taxation proceedings the appellant claimed Shs. 968,184,623 (3% of the decretal sum) as fees for attachment of the shares. The respondent objected, contending that the appellant had effected no attachment in compliance with Order 19 r 43, the attachment having already been completed by the respondent before the appellant came on the scene, and that the appellant had not served the required prohibitory order. The record showed the appellant had only forwarded a warrant of attachment to the company secretary, rather than serving a prohibitory order as required by law.

Issues

Whether the appellant complied with Order 19 r 43(1) and (2) of the Civil Procedure Rules in effecting attachment of the shares.
Whether the onus lay on the appellant to prove that he had carried out the attachment for which payment was claimed.
Whether the Justices of Appeal erred in failing to consider and make findings on certain grounds of the memorandum of appeal.

Orders

Appeal dismissed.
Costs awarded to the respondent, here and in the courts below.
The Registrar directed to send a copy of the judgment to the Chief Justice with a suggestion that the Statutory Instrument on bailiffs' fees be amended to provide limitations on awards by taxing officers.

Key headnotes

Civil Procedure — Execution — Attachment of shares under Order 19 r 43

Attachment of a share in the capital of a corporation, or other movable property not in the possession of the judgment debtor, must be effected by a written order prohibiting transfer of the share or receipt of dividends, a copy of which is affixed on a conspicuous part of the court house and another sent to the proper officer of the corporation.

Civil Procedure — Taxation of Costs — Burden of proving work done

A party claiming fees in a bill of costs for work done in attachment bears the onus of proving that he in fact complied with the mandatory provisions of Order 19 r 43; it is not for the opposing party to prove that the provisions were not complied with.

Civil Procedure — Appeals — Point of law raised by the court of its own motion

An appellate court may, on its own motion, consider a point of law that was not argued by counsel.

Civil Procedure — Appeals — Failure to consider all grounds

Where an appellate court does not specifically consider every ground of appeal, the omission does not vitiate its decision unless it is shown to have occasioned a miscarriage of justice.

Legislation cited (3)

Civil Procedure Rules Order 19 r 43(1)(2)
Statutory Instrument No. 64 of 1987 (as amended by SI No. 15 of 1991)
Rules of the Supreme Court r.81

Cases cited (1)

Adonia Makudi v Christ Mukasa (Civil Appeal No. 2 of 1986)

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.