Makubuya Enock William v Bulaimu Muwanga Kibirige t a Kowloon Garment Industry & Anor (Miscellaneous Application No. 1689 of 2013) [2014] UGHCEBD 9 (5 September 2014)
[2014] UGHCEBD 9
Makubuya Enock William v Bulaimu Muwanga Kibirige t a Kowloon Garment Industry & Anor (Miscellaneous Application No. 1689 of 2013)
High Court
· [2014] UGHCEBD 9
· 2014
Application Dismissed
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Observed later treatment
Cited — treatment unverified
cited in 1 (treatment unverified)
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No adverse treatment recorded
Cited 1 time with no adverse treatment recorded; not yet tested on the merits.
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Judicial journey
Appeal & case history
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Outcome not classified
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No later appellate decision was located in the Wakilii corpus. Linked from court records and operative language in the judgments.
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Holding
An execution warrant specifying items for attachment as 'Plastic Manufacturing Machines and Equipment including' followed by a list ending with 'ETC' is not defective where the use of 'including' and 'ETC' permits attachment of items beyond those specifically listed, provided they fall within the same category under the ejusdem generis rule. Where a warrant expires before the thirty-day advert period for sale lapses, the Registrar may validate the expired warrant to enable the ongoing advertised sale to proceed without requiring fresh advertisement. Objections to alleged excess attachment brought long after the sale has taken place may be found to be designedly delayed and barred under Order 22 rule 55 of the Civil Procedure Rules.
Outcome
Application challenging execution process dismissed; execution and sale of attached property upheld
Facts
The Applicant was judgment debtor in HCCS No. 37 of 2013, a summary suit in which his application for leave to defend was dismissed and a decree issued. A warrant of attachment issued on 20 March 2013 specified items for attachment as 'Plastic Manufacturing Machines and Equipment including' a list ending with 'ETC'. The 2nd Respondent (Bailiff) attached machinery on 22 March 2013 and advertised the sale on 3 April 2013. The warrant was due to expire on 19 April 2013, but the thirty-day advert period would expire on 3 May 2013. On 30 April 2013, the Bailiff sought court authority to conduct the sale. On 3 May 2013, the Registrar ordered the sale to proceed for not less than UGX 95,625,000. The sale took place on 6 May 2013 for UGX 100,000,000. The Applicant challenged the execution alleging defective warrant, excess attachment, undervaluation, and lack of fresh advertisement after warrant extension. The 2nd Respondent relied on a valuation by M/s Systems Engineers placing forced sale value at UGX 95,625,000 and open market value at UGX 191,250,000. The Applicant relied on a June 2012 valuation by M/s Meys Consult for Poloplast Limited, a separate legal entity.
Issues
- Whether the schedule to the warrant of attachment was defective and caused the Bailiff to attach items not liable for attachment.
- Whether the Bailiff attached items in excess of what Court ordered in the warrant of attachment.
- Whether the items attached in execution were grossly undervalued.
- Whether the sale of the properties attached should have been preceded by fresh advertisement after the extension of the expired warrant.
Orders
- Application dismissed.
- Costs awarded to the Respondents.
Rules and key headnotes
Execution — Warrants of Attachment — Interpretation of Schedules — Ejusdem Generis Rule
Where a warrant of attachment specifies items for attachment in a schedule using general descriptive language followed by the words 'including' and ending with 'ETC', the use of such language does not render the warrant defective but permits the attachment of items beyond those specifically listed, provided such items fall within the same general category as those listed, in accordance with the ejusdem generis rule of construction and interpretation.
Execution — Warrants of Attachment — Ultra Vires Attachment — Authority of Court Bailiff
Where a warrant of attachment restricts items liable for attachment to a specified category, the attachment of any item falling outside that category, even if belonging to the judgment debtor, is an act done in excess of the orders of attachment and is unlawful as the Court Bailiff would have acted ultra vires the powers conferred by the warrant, and the Court must revoke any such attachment and sale.
Execution — Sale of Attached Property — Extension of Expired Warrant — Fresh Advertisement
Where a warrant of attachment expires before the thirty-day period following advertisement for sale has lapsed, the Registrar may validate the expired warrant to enable the ongoing advertised sale to proceed without requiring fresh advertisement, as the advert was issued when the warrant was valid and has attracted potential buyers who are aware of the impending sale; this situation must be distinguished from one where both the warrant and the date of sale stated in the advert have expired, in which case fresh advertisement is required.
Execution — Objections to Attachment — Designedly Delayed Claims — Order 22 Rule 55
Under Order 22 rule 55 of the Civil Procedure Rules, where a claim or objection is made that property is not liable to attachment, but the claim or objection is brought after the sale of the items has taken place, the Court may reasonably infer that the challenge came as an afterthought and was designedly delayed, and may bar investigation into such objection where the applicant should have challenged the alleged excess attachment within reasonable time to avert the sale.
Execution — Valuation of Attached Property — Evidence — Relevance and Weight
Where a judgment debtor challenges the valuation of attached property, reliance on a valuation report made for a separate legal entity (a limited liability company) one year before the attachment, with no indication that the machines valued were located at the suit premises, carries little weight; whereas a valuation done after attachment by an independent valuer, setting both open market value and forced sale value, is reasonable evidence of proper valuation where the forced sale value is consistent with depreciation over time from the original purchase price.
Legislation cited (4)
- Civil Procedure Act s.34
- Civil Procedure Rules O.22 r.55
- Civil Procedure Rules O.22 r.65
- Civil Procedure Rules O.36 r.11
Cases citing this judgment (1)
How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.
Full judgment
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Makubuya Enock William v Bulaimu Muwanga Kibirige t a Kowloon Garment Industry & Anor (Miscellaneous Application No. 1689 of 2013) [2014] UGHCEBD 9 (5 September 2014)
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