Nansio v Walakira (Civil Appeal 24 of 1994)

Observed later treatment

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The court considered whether a notice of motion under section 35(1) of the Civil Procedure Act could challenge wrongful or excess execution against the decree-holder, or whether a separate suit was required. It held that questions relating to execution arising between parties to the suit must be determined by the executing court under section 35(1); a decree-holder who sets execution in motion and points out the property to be attached is involved in the process and answerable for excess attachment. Hannington Wasswa's case, requiring court bailiffs to be sued separately, was distinguished and did not bar the application against the decree-holder. The trial judge erred in striking out the motion. Appeal allowed, ruling set aside, motion remitted to the High Court.

Outcome

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

Facts

By a 1977 agreement the appellant sold the respondent two houses on Plot 99 Kasubi, Kampala, and received a deposit, then disappeared in an effort to frustrate the sale. The respondent sued for specific performance (HCCS 625 of 1986) and obtained judgment, which the Supreme Court upheld. The respondent took out execution and a warrant of attachment was issued to a court bailiff to attach two rooms of the appellant's house, the property to be pointed out by the respondent. The appellant alleged that 12 rooms were attached, his tenants chased away, and the plot later advertised for sale, far in excess of the decretal sum and without any accounting. He filed a notice of motion under section 35(1) of the Civil Procedure Act seeking the return of the property or its value and damages, against both the respondent decree-holder and the bailiff. The High Court struck out the motion on a preliminary objection of misjoinder, holding the bailiff had to be sued separately and the respondent was not liable for the bailiff's acts. The appellant appealed only as against the respondent.

Issues

1. Whether failure to serve the notice of appeal on the court bailiff, a person directly affected by the appeal, contrary to Rule 76(1) of the Rules of the Court, rendered the appeal incompetent.
2. Whether a complaint of wrongful or excess execution against the decree-holder may be determined by the executing court on a notice of motion under section 35(1) of the Civil Procedure Act, or must be brought by a separate suit.
3. Whether the trial judge misdirected himself in holding that treating the proceeding as a suit under section 35(2) of the Civil Procedure Act would not save time and expense.

Orders

• Appeal allowed.
• Ruling and orders of the High Court set aside.
• Notice of motion remitted to the High Court to be heard between the appellant and the respondent before another judge.
• 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

Legislation cited (7)

• Civil Procedure Act s.35(1)
• Civil Procedure Act s.35(2)
• Civil Procedure Rules Order 19 r.8(2)
• Civil Procedure Rules Order 19 r.10
• Civil Procedure Rules Order 19 r.11
• Rules of the Supreme Court r.76(1)
• Court Bailiffs Rules 1987 r.9(4)

Cases cited (8)

• Hannington Wasswa and Another v Maria Onyango Ochola and Others (Civil Appeal No. 22 of 1993)
• Abdul Waheed Sheikh v Abdul Shakoor Sheikh & Abdul R. Sheikh (1983-85) 4 KCA 50
• Ruithibo v Nyingi (Civil Appeal No. 21 of 1982)
• Roboi Holdings Limited v Shah (Civil Appeal No. 50 of 1982)
• Gillooly v Gillooly (1950) 2 All ER 118
• Purnell v Great Western Railway Co (1875-76) 1 QBD 636
• Hopgood v Willan (1936) 2 All ER 196
• Blasio Simiyu v Wanyama Simion (1982-1988) 1 KAB 630

Cases citing this judgment (6)

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.

• Mugisa Robert v Akugizibwe Isaiah and Another (HCT-01-LD-CA-0026-2024; HCT-01-LD-MA-0105-2015) followed
• Kirunda v Amoko & 3 Others (Miscellaneous Application 239 of 2023)
• Kasule Samuel v Mubeezi James & 2 Ors [2017] UGSC 69
• Philemon Wandera and Others v Yesero Mugenyi and Others (Miscellaneous Application No.1213 of 1999)
• Mrs. Josephine Etyang v Attorney General (Civil Suit No. 86 Of 2002) (Civil Suit No. 86 of 2002)
• Muka Drilling Services Ltd v Geoserve (U) Ltd (HCT-00-CC-MA 137 of 2004)

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