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Mary Engwau Acanit v Muwanga Jackson t a Kitavujja General Auctioneers & 4 Ors (Miscellaneous Application No. 1520 of 2013)

High Court · [2015] UGHCEBD 11 · 2015 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application arising from execution proceedings, originating from a consent decree for sale of property in a family division civil suit
Decision
Application granted. Bailiff ordered to account for the outstanding balance of UGX 400,000,000 from the sale proceeds and to pay costs.

Observed later treatment

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Holding

Held that the bailiff sold the suit property for UGX 2,400,000,000 and fraudulently under-declared the sale price as UGX 2,000,000,000. The evidence showed the bailiff and his business partner Ntale Stephen Mwase jointly operated the executing firm and received the additional UGX 400,000,000 from the purchaser. A bailiff executing a court warrant acts as agent of the court, not the parties, and is solely responsible for losses from fraudulent under-declaration. The bailiff was ordered to account for the outstanding balance of UGX 400,000,000 to the estate beneficiaries.

Outcome

Application granted. Bailiff ordered to account for the outstanding balance of UGX 400,000,000 from the sale proceeds and to pay costs.

Facts

The applicant and plaintiffs, as beneficiaries of a deceased's estate, consented to sell property on LRV 2515 Folio 12 Plot 40 Lumumba Road, Kampala under execution. Court appointed the bailiff to carry out the sale. The bailiff declared he had sold the property for UGX 2,000,000,000. The applicant discovered a suspicious payment of UGX 400,000,000 to Mwase Stephen Ntalo. Investigation revealed the bailiff Muwanga Jackson and Ntalo jointly operated the executing firm Kitavujja General Agencies. Evidence from Bank of Africa showed UGX 2,000,000,000 was remitted to their joint account from St. Catherine's Clinic, while the declared buyers were Patricia Kalende and Joanita Nakiwala. A Memorandum of Understanding showed Dr. Eva Kajumba Muganga of St. Catherine's Clinic agreed to pay Ntalo UGX 400,000,000 for his role in the sale, with part payment of UGX 200,000,000 made immediately. The applicant had set a reserve price of USD 1,000,000 for the sale.

Issues

  1. Whether the bailiff sold the suit property for UGX 2,000,000,000 as declared or for UGX 2,400,000,000 as alleged by the applicant.
  2. Whether the bailiff fraudulently under-declared the proceeds of sale.
  3. Whether the plaintiffs should be held liable for the bailiff's alleged fraudulent conduct.
  4. Whether a payment of UGX 400,000,000 to a third party was part of the sale proceeds.

Orders

  • The Bailiff/Respondent herein sold the suit property in execution for the sum of UGX 2,400,000,000 (Two billion four hundred million only); and therefore, the UGX 2,000,000,000 (Two billion only) he declared both to Court and the beneficiaries as the purchase price was a false and a fraudulent under declaration.
  • The Bailiff/Respondent must henceforth account to Court, for the benefit of the suit estate, for the outstanding balance of the sum of UGX 400,000,000 (Four hundred million only) out of the sale by execution.
  • The Bailiff/Respondent shall pay the Defendant/Applicant and the Plaintiffs, the costs of this application.

Rules and key headnotes

Civil Procedure — Execution — Questions Arising from Execution — Section 34 Civil Procedure Act
All questions arising between parties to a suit relating to the execution, discharge, or satisfaction of a decree must be determined by the court executing the decree and not by a separate suit, pursuant to section 34 of the Civil Procedure Act.
Civil Procedure — Execution — Bailiff as Agent of Court
A bailiff carrying out execution remains an agent of the court and not of the beneficiaries of the execution, so long as the bailiff does not exceed the powers issued by court. Where a bailiff, without the participation or active involvement of the judgment creditor, undervalues property and sells it at the undervalue, the bailiff is solely responsible unless he can prove the act was not willful.
Evidence — Burden of Proof — Facts Especially Within Knowledge — Section 106 Evidence Act
In civil proceedings, when any fact is especially within the knowledge of any person, the burden of proving that fact is upon that person, pursuant to section 106 of the Evidence Act.
Civil Procedure — Execution — Fraudulent Under-Declaration of Sale Proceeds by Bailiff
Where a bailiff appointed to execute a court-ordered sale fraudulently under-declares the sale proceeds, the court may order the bailiff to account for the undeclared balance upon proof on a balance of probabilities that the actual sale price exceeded the declared amount.

Legislation cited (2)

Cases cited (2)

  • Francis Micah v Nuwa Walakira [1995] KALR 361
  • Harriet Namakula v Registered Trustees Kampala Archdiocese (Miscellaneous Application No. 1025 of 1997)

Full judgment

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Mary Engwau Acanit v Muwanga Jackson t a Kitavujja General Auctioneers & 4 Ors (Miscellaneous Application No. 1520 of 2013) [2015] UGHCEBD 11 (14 October 2015)
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.