Wakilii

Grace ofwono v M s Poland (U) Ltd (Miscellaneous Application No. 669 of 2015)

High Court · [2016] UGHCEBD 35 · 2016 Application Granted — Sale Set Aside AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to nullify execution sale arising from execution proceedings
Decision
Sale declared a nullity and set aside; execution may be recommenced in compliance with law

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The sale of immoveable property in execution without first depositing the duplicate certificate of title or special certificate of title in Court is a nullity and incurably defective under Civil Procedure Act s.48. A certified photocopy of the certificate of title does not satisfy the statutory requirement. The court set aside the execution sale and ordered costs to the applicant.

Outcome

Sale declared a nullity and set aside; execution may be recommenced in compliance with law

Facts

The respondent obtained a decree against the applicant and sought execution by attachment and sale of the applicant's immoveable property comprised in Kyaddondo Block 244, Plot 7778 at Kisugu. The Registrar Execution ordered the sale of the property. The applicant challenged the sale on multiple grounds, principally that the sale was conducted without the duplicate certificate of title or special certificate of title being lodged in Court as required by law. The respondent's affidavit in reply stated that a certified photocopy of the certificate of title had been attached to the application for warrant of execution and that an order of sale had been issued by the Registrar after the warrant of attachment expired.

Issues

  1. Whether the sale of immoveable property in execution proceedings conducted without the duplicate certificate of title or special certificate of title being lodged in Court is valid.

Orders

  • Application allowed.
  • Sale of the suit property set aside.
  • Costs awarded to the applicant.
  • Registrar Execution may commence execution process afresh if decree remains unsatisfied, subject to compliance with statutory requirements.

Rules and key headnotes

Execution — Sale of Immoveable Property — Mandatory Requirement to Lodge Duplicate Certificate of Title
Under Civil Procedure Act s.48(1), the court shall not proceed with the sale of immoveable property attached in execution until the duplicate certificate of title has been lodged in Court, or under s.48(4), until the Registrar of Titles provides a special certificate of title where the duplicate is not forthcoming.
Execution — Certified Copy of Certificate of Title — Insufficient to Satisfy Statutory Requirement
A certified photocopy of a certificate of title is not a certificate of title and does not satisfy the requirement in Civil Procedure Act s.48 that the duplicate or special certificate of title be deposited in Court before sale. A certified copy is only proof that the Register book contains what has been certified and cannot be delivered to a purchaser as the owner's copy.
Execution — Effect of Non-Compliance with Mandatory Procedure — Sale is a Nullity
Where the sale of immoveable property in execution is conducted without first depositing the duplicate or special certificate of title in Court, the sale is incurably defective and a nullity in law. The court has inherent power to declare the sale invalid and set it aside without the need for a formal order, though it is convenient to obtain such a declaration.

Legislation cited (2)

Cases cited (4)

  • Kibuuka Nelson and Another v Yusuf Ziiwa (Miscellaneous Applications No. 72 and 225 of 2008)
  • James Kabateraine v Charles Oundo and Another (High Court Civil Suit No. 177 of 1994)
  • [1961] 3 All ER 1169
  • Rosemary Eleanor Karamagi v Angoliga Malimoud (Miscellaneous Application No. 733 of 2005)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Grace ofwono v M s Poland (U) Ltd (Miscellaneous Application No. 669 of 2015) [2016] UGHCEBD 35 (9 March 2016)
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.