Wakilii

Kafeero-Ssentongo v Mugenyi & Anor (Miscellaneous Application No. 670 of 2019)

High Court · [2020] UGHCEBD 6 · 2020 Application Granted — Sale Set Aside AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application under section 34 of the Civil Procedure Act to set aside execution, attachment and sale arising from a consent judgment in a civil suit
Decision
Sale set aside; judgment creditor ordered to refund purchase price to purchaser; judgment creditor at liberty to commence fresh execution proceedings; declaration issued that Nalukolongo property not under attachment.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that a valuation conducted by a person not registered and licensed under the Surveyors Registration Act Cap. 275 amounts to no valuation in law, and a sale based on such valuation must be set aside. Although registration under the Act is voluntary, courts will only recognise valuers licensed under the regulatory law. Expert witnesses must be certified by relevant regulatory bodies as possessing necessary competencies. The sale of the Masaka property was set aside, with the judgment creditor ordered to refund the purchase price to the purchaser.

Outcome

Sale set aside; judgment creditor ordered to refund purchase price to purchaser; judgment creditor at liberty to commence fresh execution proceedings; declaration issued that Nalukolongo property not under attachment.

Facts

The applicant and 1st respondent entered into a consent judgment in 2018 whereby the applicant was to pay 260,000,000/ within four months. Upon default, the 1st respondent commenced execution by attachment and sale of land in Masaka. A valuation was conducted by Dr. Ochwo Ochieng Ojomok who valued the property at 130,000,000/ forced sale value. The 2nd respondent purchased the property at public auction for 130,000,000/. The applicant challenged the execution, arguing the valuer was not qualified or licensed under the Surveyors Registration Act, and that the property was undervalued. The court found that Dr. Ochwo, though holding a diploma in valuation and registered with the Institution of Surveyors since 1982, was not registered or licensed under the Surveyors Registration Act Cap. 275, and his firm had no traceable physical address.

Issues

  1. Whether the attachment and sale of the applicant's property was done contrary to law.
  2. Whether the valuation of the property was done by a person qualified and licensed to practice as a surveyor.
  3. Whether the sale to the 2nd respondent can be set aside.
  4. Whether the execution of kibanja land at Nalukolongo ought to be stayed.

Orders

  • The sale of plot 213 Block 323, Nyendo, Masaka is set aside.
  • The judgment creditor Mugenyi Francis shall refund the 2nd Respondent Kigozi Edirisa 130,000,000/ he paid as purchase price under the invalidated sale.
  • The 1st Respondent is at liberty to commence execution proceedings afresh to recover the judgment debt since the initial application has been extinguished by this Ruling.
  • Application for vacant possession declined — the Applicant to invoke the prescribed procedure to secure possession.
  • A declaration shall issue that the Nalukolongo property is not currently under attachment.
  • Costs of 3,000,000/ to be paid by the 1st Respondent to the Applicant.

Rules and key headnotes

Civil Procedure — Execution — Valuation — Qualifications of Valuer
A valuation conducted by a person not registered and licensed under the Surveyors Registration Act Cap. 275 amounts to no valuation in law, and a sale based on such valuation must be set aside.
Administrative Law — Professional Regulation — Surveyors — Voluntary Registration
Although registration under the Surveyors Registration Act Cap. 275 is voluntary with no sanctions for non-registration, courts will only recognise valuers who are licensed under the regulatory law. Expert witnesses must be certified by relevant regulatory bodies as possessing the necessary competencies in their discipline.
Civil Procedure — Execution — Judicial Sale — Setting Aside
A judicial sale, unlike a private sale, is not complete immediately it takes place and is liable to be set aside on appropriate proceedings.
Civil Procedure — Execution — Notice to Judgment Debtor — Valuation
The registrar must serve the judgment debtor with the order of sale to give the debtor an opportunity to challenge the valuation under Order 50 rule 8 of the Civil Procedure Rules.
Civil Procedure — Execution — Appointment of Valuers — Registrar's Duty
For purposes of ensuring proper execution, it is prudent for the registrar to appoint a valuer rather than leave this task to the bailiff, as the execution function is the responsibility of the registrar. The appointment should be complemented by a list of valuers accredited by the Surveyors Registration Board from which the registrar selects.

Legislation cited (7)

Cases cited (3)

  • Muwanga v Kyeyune (Civil Appeal No. 12 of 2001)
  • Green Pastures Ltd v Cooperative Bank (Miscellaneous Application No. 172 of 2015)
  • Makula International

Full judgment

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

Kafeero-Ssentongo v Mugenyi & Anor (Miscellaneous Application No. 670 of 2019) [2020] UGHCEBD 6 (4 September 2020)
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.