Wakilii

Mica v Walakira (CIVIL APPEAL 21 1994)

Supreme Court · [1995] UGSC 42 · 1995 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from a High Court ruling striking out a notice of motion brought under section 35(1) of the Civil Procedure Act.
Decision
Appeal allowed; ruling and orders of the High Court set aside; notice of motion remitted to the High Court to be heard afresh by another judge as between the appellant and the respondent.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The appellant's notice of motion under section 35(1) of the Civil Procedure Act, seeking the return of property wrongfully or excessively attached in execution, was struck out by the High Court for misjoinder of the decree-holder and the court bailiff. The Supreme Court held that questions between parties to a suit relating to the execution, discharge or satisfaction of a decree must be determined by the executing court under section 35(1), not by a separate suit. Wasswa's case requires only the court bailiff, not being a party, to be sued separately; it does not bar an application against the decree-holder. The appeal was allowed and the motion remitted to the High Court to be heard afresh.

Outcome

Appeal allowed; ruling and orders of the High Court set aside; notice of motion remitted to the High Court to be heard afresh by another judge as between the appellant and the respondent.

Facts

By an agreement dated 29 January 1977 the appellant sold the respondent two houses on Plot No. 99 Kasubi, Kampala; the respondent paid a deposit of Shs. 60,000. The appellant later disappeared, frustrating the sale. The respondent sued for specific performance (HCCS No. 525 of 1985) and obtained judgment in 1990, which the Supreme Court upheld. The respondent took out execution, and a warrant of attachment and sale dated 10 July 1990 issued to a court bailiff, who threatened to attach and sell the plot unless the appellant paid Shs. 534,903 plus costs. Although the warrant authorised attachment of only two rooms, the appellant complained that all twelve rooms of his houses were attached and his tenants evicted, causing loss of revenue. The Deputy Registrar ordered the bailiff to lift the excess attachment, but the bailiff did not comply. Execution was stayed by consent in 1991. When the bailiff advertised the plot for sale in August 1992, the appellant filed a notice of motion under section 35(1) seeking the return of the property and damages for wrongful attachment and trespass.

Issues

  1. Whether a party to a suit may challenge wrongful or excess execution of a decree by an application under section 35(1) of the Civil Procedure Act, or must bring a separate suit.
  2. Whether the respondent decree-holder was properly joined in the application, or should have been struck out for misjoinder.
  3. Whether the trial judge misdirected himself in holding that treating the application as a suit under section 35(2) would not save time or expense.
  4. Whether counsel for the respondent could competently swear an affidavit in reply on behalf of his client.

Orders

  • Appeal allowed.
  • Ruling and orders of the High Court set aside.
  • Notice of motion remitted to the High Court to be heard, by another judge, as between the appellant and the respondent.
  • Costs of the appeal awarded to the appellant.
  • Costs of the court below to abide the outcome of the remitted proceedings.

Rules and key headnotes

Civil Procedure — Execution of Decrees — Scope of Section 35(1) of the Civil Procedure Act
All questions arising between the parties to a suit, or their representatives, relating to the execution, discharge or satisfaction of a decree must be determined by the court executing the decree under section 35(1) of the Civil Procedure Act, and not by a separate suit.
Civil Procedure — Execution — Treating an Application as a Suit under Section 35(2)
Under section 35(2) of the Civil Procedure Act the court may treat an application relating to execution as a suit; this procedure is designed to save time and expense and does not require the applicant to open a fresh suit with its attendant fees and pleadings.
Civil Procedure — Execution — Joinder of Decree-Holder and Court Bailiff
A decree-holder who sets execution in motion and points out the property to be attached may be joined in a section 35(1) application challenging wrongful or excess attachment, whereas a court bailiff, not being a party to the suit, should be sued in a separate action.
Civil Procedure — Execution — Remedy for Excess Attachment or Sale
Where property in excess of, or not covered by, the decree is attached or sold in execution, the judgment-debtor's proper remedy to recover the excess is an application under section 35 of the Civil Procedure Act and not a separate suit.
Civil Procedure — Appeals — Mandatory Service of Notice of Appeal under Rule 75(1)
Rule 75(1) of the Rules of the Court is mandatory and obliges an intending appellant to serve the notice of appeal on all persons directly affected by the appeal, including a litigant who was a party in the court below, so that such a person may be heard on a matter affecting their interest.
Evidence — Affidavits — Counsel Swearing an Affidavit for a Client
Counsel may swear an affidavit in reply on behalf of his client without thereby becoming a witness; however, statements of legal opinion are properly reserved for submissions rather than deposed to in an affidavit.

Legislation cited (9)

Cases cited (8)

  • Wasswa and Another v ... and 3 Others (Supreme Court Civil Appeal No. 22 of 1993)
  • Supreme Court Civil Appeal No. 11 of 1990
  • Abdul Waheed Sheikh v Abdul Shakoor [1984] KCA 89
  • Kurji ov Irving, Court of Appeal Civil Appeal 21 of 1982
  • Kodol Holdings Limited V. Bhar..., Court of Appeal Civil Appeal 50 of 1982
  • Gilmory vs. Gilmory (1959) 2 All ER 118
  • Hood vs. William (1936) 2 All ER 190
  • Biasio Simiyu v Wanyafa Simion (1982-1985) 1 KAR 830

Full judgment

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

Mica v Walakira (CIVIL APPEAL 21 1994) [1995] UGSC 42 (3 May 1995)
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.