Lukyamuzi & Another v Oddy (Civil Appeal 18 of 1993)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The Supreme Court allowed the appeal, the respondent's counsel having conceded it. The Court held that an application requiring a defendant to furnish security for the decretal amount or for attachment of property before judgment must be brought under Order 35, not Order 37, of the Civil Procedure Rules. The appellants were entitled to notice and to be heard, and the power under Order 37 to dispense with notice had never been invoked. The trial judge further erred in making an omnibus order combining a temporary injunction, attachment of stock-in-trade and a requirement to furnish security, with alternative coercive courses. The ruling and orders below were set aside and the attached goods released to the appellants.

Outcome

Appeal allowed; High Court ruling and orders set aside and the attached goods released to the appellants.

Facts

The respondent sued the appellants in the High Court for a sum of money for goods delivered to them. Pending the suit, the respondent applied ex parte, by chamber summons under Order 37 of the Civil Procedure Rules and section 101 of the Civil Procedure Act, for an order that the appellants furnish security for the decretal sum, interest and costs, or alternatively that their stock-in-trade be attached pending judgment. The application was heard ex parte during court vacation, without notice to the appellants, and was allowed: a temporary injunction issued requiring security, failing which the goods would be attached or the first appellant detained in a civil prison for up to six months. The appellants' goods were attached while, on the first appellant's uncontested affidavit, they were unaware of the suit and had not been served with summons. The respondent's subsequent application to set aside that order was dismissed by the same judge, prompting the appeal.

Issues

1. Whether the application for security for the decretal sum and attachment of the defendants' property before judgment was properly brought under Order 37 of the Civil Procedure Rules.
2. Whether the appellants were entitled to notice and an opportunity to be heard before the order was made against them.
3. Whether the trial court erred in making a single omnibus order combining an injunction, attachment and an order for security.

Orders

• Appeal allowed.
• The ruling and orders of the High Court set aside.
• The order of temporary injunction dated 30 December 1992, under which the appellants' goods were attached, set aside.
• The attached goods to be released to the appellants.
• Costs of the appeal to the appellants.

Rules and key headnotes

Legislation cited (4)

• Civil Procedure Rules Order 37 rr.1, 2 and 9
• Civil Procedure Act s.101
• Civil Procedure Rules Order 35
• Civil Procedure Rules Order 37 r.3

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