Wakilii

M s Semuyaba ,Iga& Company Advocates v Attorney General of the Republic of South Sudan and Another (Miscellaneous Application 4 of 2022)

High Court · [2019] UGCOMMC 240 · 2019 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for enforcement of a decree of the East African Court of Justice by way of garnishee proceedings and post-judgment discovery, arising from Reference No. 21 of 2019, challenged by preliminary objections
Decision
Application dismissed with costs

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that service was not effective upon the 1st garnishee because there was no proof that the person served at the Kampala branch had express consent from the President of the Bank as required by treaty; that the court lacked jurisdiction to execute the East African Court of Justice decree in the absence of a proper order transferring it to Uganda; that the 1st applicant law firm was not a decree-holder and thus wrongly joined; and that the 1st garnishee enjoys process immunity while the 2nd garnishee has jurisdictional immunity. Application dismissed with costs.

Outcome

Application dismissed with costs

Facts

Yu Sung Construction Limited obtained a consent judgment from the East African Court of Justice against the Government of South Sudan for over US$49 million plus taxed costs of over US$8 million, in four instalments. The debt remained unpaid despite acknowledgment by the South Sudan Ministry of Justice. The law firm Semuyaba, Iga & Co. Advocates, together with Yu Sung Construction, filed an application in the Commercial Division of the High Court of Uganda seeking to enforce the decree by way of garnishee proceedings and post-judgment discovery against the African Export-Import Bank and Nile Petroleum Corporation, both alleged to hold assets or shares on behalf of the Government of South Sudan. The application was challenged by a series of preliminary objections.

Issues

  1. Whether service was effective upon the 1st garnishee.
  2. Whether the court is seized with jurisdiction to enforce the decree of the East African Court of Justice.
  3. Whether the 1st applicant (a law firm) is a proper party to the execution proceedings.
  4. Whether it is proper for the applicants to seek discovery in aid of execution.
  5. Whether the 1st garnishee enjoys process immunity and the respondent together with the 2nd garnishee, jurisdictional immunity.

Orders

  • Application dismissed.
  • Costs awarded to the respondent and the garnishees.

Rules and key headnotes

Civil Procedure — Service of Process — International Organisations — Service at Branch Office Requires Express Consent of President
Where an international organisation's treaty provides that service of legal process at its branch office requires the express consent of the President of the organisation, service at that branch office without proof of such consent is not effective and does not confer jurisdiction over the organisation.
Civil Procedure — Waiver — Waiver of Jurisdictional Objection Requires Unconditional Appearance or Substantive Response
A respondent who files an affidavit in reply but expressly reserves the right to challenge competence and jurisdiction does not waive objections to service or jurisdiction by that act alone. Waiver occurs where a defendant enters an unconditional appearance or defends the case on the merits without raising jurisdictional objections in the first responsive pleading.
Civil Procedure — Enforcement of Foreign and Regional Judgments — East African Court of Justice — Jurisdiction of Transferee Court Requires Proper Order of Transfer
The High Court of Uganda obtains jurisdiction to execute a decree of the East African Court of Justice only when it receives a complete and verified copy of the judgment and a specific order for transfer of the decree to it. A decree transferred to the High Court of Kenya for execution does not confer jurisdiction on the High Court of Uganda absent a proper order transferring it to Uganda.
Civil Procedure — Parties — Locus Standi in Execution — Advocates as Agents Cannot Sue in Own Name
A law firm retained as counsel to represent a judgment creditor cannot file execution proceedings in its own name as a party. An agent does not have capacity to take out proceedings in the agent's own name; such proceedings are a nullity. An agent may sue only in the name of the principal.
Civil Procedure — Discovery — Post-Judgment Discovery in Aid of Execution — Broader Scope than Pre-Trial Discovery but Not a Fishing Expedition
Post-judgment discovery in aid of execution is broader in scope than pre-trial discovery and permits the judgment creditor to discover hidden or concealed assets. However, the court will not permit a fishing expedition where the judgment creditor has no basis beyond mere speculation that the third party holds assets of the judgment debtor. There must be a close link between the third party and the judgment debtor, and the information sought must be relevant to locating attachable assets.
Administrative Law — Immunity — International Organisations — Process Immunity from Suits by Shareholders or Persons Deriving Claims from Shareholders
An international development bank established by treaty enjoys immunity from legal process in suits brought by persons acting for or deriving claims from a shareholder. A claim is derived from a shareholder when it owes its existence to the rights enjoyed by the shareholder and is not original in character. Where applicants seek to attach shares and dividends on the ground that a judgment debtor is a shareholder, their claim is derived from that of a shareholder and the bank is immune from process.
Civil Procedure — Jurisdiction — Long-Arm Jurisdiction over Foreign State Corporations — Requires Physical Presence and Leave
A Ugandan court cannot exercise jurisdiction over a foreign state corporation domiciled abroad in the absence of a direct or indirect presence within Uganda, such as maintaining a physical office, coupled with business activity sustained for a period of time. Further, absent express submission, leave for issuance and service of process outside jurisdiction is required. A judgment creditor must demonstrate that the forum is convenient and that there is a real and substantial connection between the cause of action and Uganda.

Legislation cited (8)

Cases cited (15)

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696
  • Geoffrey Gatete and Another v William Kyobe (Supreme Court Civil Appeal No. 7 of 2005)
  • Kampala City Council v Apollo Hotel Corporation [1985] HCB 77
  • Crane Bank Ltd v Kabuye Victoria (High Court Miscellaneous Application No. 719 of 2007)
  • Rashida Abdul Karim Hanali v Suleiman Adrisi (High Court Miscellaneous Civil Application No. 9 of 2017)
  • Greenwood (Pauper) v Martins Bank Limited [1933] AC 51
  • Re Overseas Aviation Engineering (GB) Ltd (1963) 24 Ch 39
  • Christopher Sales v Attorney General (Civil Suit No. 91 of 2011)
  • Norwich Pharmacal Company and Others v Customs and Excise [1974] AC 133
  • John Kato v Muhlbauer AG and Another (High Court Miscellaneous Application No. 175 of 2011)
  • O Co v M Co [1996] 2 Lloyd's Rep 347
  • Ayigihugu and Company Advocates v Mary Muteteri Munyankindi [1988-90] HCB 161
  • Kateregga Paul v Tugume Jackson (High Court Miscellaneous Application No. 885 of 2014)
  • Boutique Shazim Ltd v Norattam Bhatia and Another (Court of Appeal Civil Appeal No. 36 of 1997)
  • Narbheram Chakubhai v Patel (1948) 6 ULR 211

Full judgment

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M s Semuyaba ,Iga& Company Advocates v Attorney General of the Republic of South Sudan and Another (Miscellaneous Application 4 of 2022) [2019] UGCommC 240 (6 January 2019)
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.