Wakilii

Nairobi Flour Mills v Ram (Civil Suit No. 540 of 1954)

East African Court of Appeal · [1955] EACA 11 · 1955 Application Partly Allowed (Amendment Ordered) AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for execution of decree by attachment and sale of movable property, referred to Judge by Deputy Registrar for determination of propriety
Decision
Application permitted to proceed upon amendment by removal of objectionable phrase

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that an attaching creditor bears the principal risk and responsibility for selling goods that may be subject to a chattels mortgage. Where a creditor has doubt or knowledge of such an encumbrance, disclosure is required, but words attempting to transfer risk to the Court officer are improper. The Court ordered the objectionable phrase struck from the application within seven days, with costs thrown away not chargeable to the judgment-debtor.

Outcome

Application permitted to proceed upon amendment by removal of objectionable phrase

Facts

The decree-holder applied in writing for execution of a decree by attachment and sale of the defendant's motor vehicle, using the prescribed Form 5. In describing the mode of assistance required, the application stated 'By an attachment on and order for sale of the defendant's vehicle No. H 2887 (subject to bill of sale, if any)'. The Deputy Registrar considered that the requirements of the Civil Procedure Rules had not been properly complied with and referred the matter to a Judge. The Deputy Registrar objected that the phrase 'subject to bill of sale, if any' improperly threw the burden of discovering third party interests upon the Court officer. At the hearing, the advocate stated that 'bill of sale' referred to an instrument under the Chattels Mortgage Ordinance.

Issues

  1. Whether the phrase 'subject to bill of sale, if any' in an application for attachment and sale of movable property improperly attempts to transfer risk and responsibility from the attaching creditor to the Court officer.
  2. Whether the Court should permit an application for execution that contains words suggesting the creditor is attempting to pass the burden of enquiry regarding third party interests to the Court officer.

Orders

  • Application to be amended by striking out the objectionable words '(subject to bill of sale, if any)' within seven days.
  • None of the costs thrown away to be chargeable against the judgment-debtor.

Rules and key headnotes

Civil Procedure — Execution — Duty of Attaching Creditor — Disclosure of Third Party Interests
The risk of and responsibility for selling goods which are known or believed to be the subject of a chattels mortgage lies principally upon the attaching creditor, and if that creditor entertains any doubt or has any express or implied knowledge of a chattels mortgage then it is his duty or the duty of his advocate, as an officer of the Court, to disclose this doubt, knowledge or belief in the application.
Civil Procedure — Execution — Improper Attempt to Transfer Risk to Court Officer
It is not proper for an attaching creditor to use words in an application for execution which, not amounting to express notice ex facie of the application, are intended to pass any risk or responsibility to the Court officer.
Civil Procedure — Execution — Duty of Court to Scrutinise Applications
A duty is imposed on the Court by Order 21, rules 7 and 8 of the Civil Procedure (Revised) Rules, 1948 to enquire if an application for execution is a proper one upon which to make an order, and no order on a Court officer should be made upon an application into which the Court officer might reasonably, for his own protection, read a necessity to scrutinize the Chattels Mortgage Register and to make other burdensome enquiries.
Civil Procedure — Execution — Power to Order Amendment of Defective Application
Where the Court does not impute mala fides to an application for execution but finds objectionable wording, the Court may, under the powers contained in Order 21, rule 13 of the Civil Procedure (Revised) Rules, 1948, order the application to be amended by striking out the objectionable words rather than dismissing the application.

Legislation cited (10)

  • Civil Procedure (Revised) Rules, 1948 Order 21 rule 7(2)
  • Civil Procedure (Revised) Rules, 1948 Order 21 rule 8
  • Civil Procedure (Revised) Rules, 1948 Order 21 rule 6
  • Civil Procedure (Revised) Rules, 1948 Order 21 rule 13
  • Civil Procedure (Revised) Rules, 1948 Order 48 rule 3
  • Civil Procedure (Revised) Rules, 1948 Appendix D Form 5
  • Chattels Mortgage Ordinance Cap. 281 s.4
  • Chattels Mortgage Ordinance Cap. 281 s.6
  • Chattels Mortgage Ordinance Cap. 281 s.13
  • Chattels Mortgage Ordinance Cap. 281 s.14

Full judgment

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Nairobi Flour Mills v Ram (Civil Suit No. 540 of 1954) [1955] EACA 11 (1 January 1955)
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.