Wakilii

M S Kampala Associated Advocates v AL Shafi Investiments Group LLC (Civil Appeal No. 282 of 2020)

Court of Appeal · [2021] UGCA 48 · 2021 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First appeal from a High Court (Commercial Division) ruling arising out of execution proceedings
Decision
Appeal dismissed; matter of execution remanded to the executing court under section 51 of the Civil Procedure Act

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal dismissed the appeal, upholding the reference Judge's finding that the appellant advocates' attachment and sale of their client's company shares to recover taxed costs was irregular and illegal because they had proceeded without first obtaining a court decision or judgment as required by section 57 of the Advocates Act. The Court held the respondent, a rival decree holder and party to the multiplicity of related suits, was not a busybody and could invoke the court's inherent powers under section 98 of the Civil Procedure Act and section 33 of the Judicature Act to raise the illegality, which overrides pleadings. The dispute on costs and attachment was remanded to the executing court under section 51.

Outcome

Appeal dismissed; matter of execution remanded to the executing court under section 51 of the Civil Procedure Act

Facts

The appellant law firm had represented Ahmed Darwish, a resident of Abu Dhabi, in litigation in Uganda but was unpaid for its legal fees, which were taxed at a total of about UGX 968,696,268. Darwish had no assets in Uganda other than shares in three companies. The respondent had separately sued Darwish for a dishonoured cheque (about USD 41,472,820) and obtained a decree, and also sought to execute against Darwish's shares. Both the appellant and the respondent thus competed as creditors to attach the same shares. The appellant, armed with its taxed bill of costs, obtained a court-ordered notification of sale of the shares. The respondent, as a rival decree holder, complained that the appellant had proceeded to attach the shares without first filing a suit and obtaining a decision under section 57 of the Advocates Act, alleging illegality and connivance between the appellant and its client to defeat the respondent's execution. The reference Judge found in the respondent's favour, holding the appellant's bill of costs and derived certificates defective, and allowing the respondent to continue with its execution.

Issues

  1. Whether the respondent's application in Miscellaneous Application No. 567 of 2020 disclosed a cause of action and locus standi.
  2. Whether the application was barred by limitation or res judicata.
  3. Whether the appellant's execution by attachment and sale of their client's shares was illegal for non-compliance with section 57 of the Advocates Act.
  4. Whether the preliminary objections raised against the respondent's application were valid.
  5. Who should bear the costs of the appeal.

Orders

  • Appeal dismissed.
  • The decision of the reference Judge is upheld.
  • The dispute on costs and attachment is remanded to the court that issued the decree to handle execution in line with section 51 of the Civil Procedure Act.
  • Costs of the appeal awarded to the respondent.

Rules and key headnotes

Advocates' Costs — Recovery — Requirement of Suit and Decree before Execution under Advocates Act s.57
An advocate cannot attach and sell a client's assets by way of execution to satisfy an advocate-client bill of costs without first complying with section 57 of the Advocates Act by bringing a suit and obtaining a court decision; execution without such a decision is irregular and illegal.
Illegality — Effect on Pleadings and Preliminary Objections
Once an illegality is brought to the attention of the court, it overrides all questions of pleadings, so objections as to cause of action, locus standi, limitation and res judicata cannot defeat an application founded on that illegality.
Inherent Powers of Court — Preventing Abuse of Process
The court may invoke its inherent powers under section 98 of the Civil Procedure Act and section 33 of the Judicature Act to make orders necessary to prevent abuse of process and to ensure that all matters in controversy are completely and finally determined, avoiding multiplicity of proceedings.
Locus Standi — Rival Decree Holder in Competing Execution
A rival decree holder who is a party to a multiplicity of related suits over the same subject matter and whose right to execute is threatened by an irregular attachment is not a mere busybody and has standing to challenge the flawed execution process.
Memorandum of Appeal — Duplicative and Argumentative Grounds
A memorandum of appeal must set out grounds concisely under distinct heads without argument or narrative as required by Rule 86(1) of the Court of Appeal Rules; grounds that duplicate each other or contain argument offend the rule and may be struck out, though the court retains discretion not to do so.
Execution — Priority of Competing Attachments under Civil Procedure Act s.51
Where more than one decree holder has lodged applications for execution against the same judgment debtor, priority of distribution is governed by section 51 of the Civil Procedure Act and is a matter for the executing court, not the appellate court.

Legislation cited (18)

Cases cited (16)

  • Pandya v R [1957] EA 336
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Mulindwa v Kisubika (Civil Appeal No. 12 of 2014)
  • Ashmore V Corporation of Lloyd's [1992] All ER 486
  • Fakrudin Vallibhai v Kampala District Land Board (HCCS No. 570 of 2015)
  • Dr. James Rwanyarare v Attorney General (Constitutional Petition No. 11 of 1997)
  • Attorney General v East African Gold Sniffing (Civil Appeal No. 155 of 2013)
  • Auto Garage V Motokov [1971] EA 315
  • Yusufu V Nokrach (1971) E.A. 104
  • In Re Nakivubo Chemists (U) Ltd (1971) HCB 12
  • Francis Micah v Nuwe Walakira (Civil Appeal No. 24 of 1994)
  • Uganda Revenue Authority v Uganda Consolidated Properties Ltd (Civil Appeal No. 31 of 2000)
  • Makula International v His Eminence Cardinal Nsubuga (Civil Appeal No. 4 of 1981)
  • Ponsiyano Semakula v Susane Magala (Civil Appeal No. 2 of 1979)
  • City of London Council, Ex Parte Blackburn [1976] 3 All ER 184
  • J B Byamugisha t/a Byamugisha and Company Advocates Vs National Social Security Fund Misc. Cause No. 25/27 and 28 of 2011

Full judgment

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M S Kampala Associated Advocates v AL Shafi Investiments Group LLC (Civil Appeal No. 282 of 2020) [2021] UGCA 48 (11 August 2021)
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.