Wakilii

Swastik Investment Co. Ltd v Tororo Cement Ltd (Miscellaneous Application No. 0094 of 2017)

High Court · [2020] UGHC 418 · 2020 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside execution sale of motor vehicle arising from Civil Suit No. 022 of 2016
Decision
Application dismissed as incompetent; motor vehicle sale found to have occurred prematurely but relief not granted as sale had been completed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The application to set aside the execution sale of a motor vehicle was dismissed as incompetent. The court held that service of the notice of motion 93 days after its issuance, without an application for extension of time, violated Order 5 Rule 1(3) of the Civil Procedure Rules. The court also found that the sale had occurred on the 14th day after advertisement, not after the mandatory 15-day period when Sundays and public holidays are excluded, rendering the sale illegal under Order 22 Rule 64, but declined to issue orders where the sale had already been completed and the application was incompetent.

Outcome

Application dismissed as incompetent; motor vehicle sale found to have occurred prematurely but relief not granted as sale had been completed

Facts

Swastik Investment Co. Ltd purchased motor vehicle UAU 077G from Pappu Sayani for UGX 68 million on 20 May 2016, paying UGX 40 million and taking possession. The vehicle was registered in Sayani's name. Tororo Cement Ltd obtained judgment against Sayani and Zyene Enterprises in Civil Suit No. 022 of 2016 for UGX 4,095,305,679. On 8 February 2017, the court issued a warrant of attachment including vehicle UAU 077G. The vehicle was seized from the judgment debtor's driver on 9 February 2017. A public notice of sale was published on 10 February 2017, and the vehicle was sold by public auction on 27 February 2017 to Robert Arinatwe. Swastik filed miscellaneous applications No. 52 and 53 of 2017 seeking release of the vehicle and an interim order against the sale. The notice of motion for the present application was issued on 21 March 2017 but served on the respondent only on 13 July 2017, 93 days later.

Issues

  1. Whether the application was incompetent for failure to serve within 21 days as required by Order 5 Rule 1(3) of the Civil Procedure Rules.
  2. Whether the sale of motor vehicle registration number UAU 077G was conducted in compliance with the mandatory 15-day notice period under Order 22 Rule 64 of the Civil Procedure Rules.

Orders

  • Application dismissed.
  • No order as to costs.

Rules and key headnotes

Civil Procedure — Service of Process — Time Limits — Mandatory 21-Day Period for Service of Notice of Motion
Where a notice of motion has been issued and service has not been effected within 21 days from the date of issue, and there is no application for extension of time or the application has been denied, the application shall be dismissed as incompetent pursuant to Order 5 Rule 1(3) of the Civil Procedure Rules.
Civil Procedure — Execution — Sale of Movable Property — Computation of 15-Day Notice Period
The mandatory 15-day period for sale of movable property under Order 22 Rule 64 of the Civil Procedure Rules does not include Sundays, Christmas Day, Good Friday, and public holidays in the computation of the limited time, pursuant to Order 51 of the Civil Procedure Rules.
Civil Procedure — Execution — Premature Sale — Effect of Illegality Where Sale Completed
A sale of movable property conducted before the expiration of the mandatory 15-day period under Order 22 Rule 64 of the Civil Procedure Rules is illegal, but where the sale has been completed and the application seeking to set it aside is incompetent, the court will not issue orders in vain.

Legislation cited (15)

  • Civil Procedure Act s.98
  • Civil Procedure Act s.43(1)
  • Civil Procedure Rules O.52 r.1
  • Civil Procedure Rules O.52 r.3
  • Civil Procedure Rules O.21 r.64
  • Civil Procedure Rules O.22 r.64
  • Civil Procedure Rules O.22 r.71
  • Civil Procedure Rules O.22 r.55
  • Civil Procedure Rules O.22 r.56
  • Civil Procedure Rules O.22 r.57
  • Civil Procedure Rules O.22 r.58
  • Civil Procedure Rules O.51
  • Civil Procedure Rules O.5 r.1(2)
  • Civil Procedure Rules O.5 r.1(3)
  • Civil Procedure Rules O.17 r.4

Cases cited (7)

  • James Kabaterine v Charles Oundo & Another (High Court Civil Suit No. 177 of 1994)
  • Makula International Ltd v His Eminence Cardinal Nsubuga & Another (Civil Appeal No. 4 of 1981)
  • Diary Corporation Vs Opio (2001-2005) HCB 113
  • Fredrick Madhivani Group Ltd & Another (Miscellaneous Application No. 688 of 2015)
  • Western Uganda Cotton Co. Ltd v Dr George Asaba & Others (High Court Civil Suit No. 353 of 2009)
  • Fred Kamanda v Uganda Commercial Bank (Supreme Court Civil Appeal No. 17 of 1995)
  • J.W. Kazoora v M.L.S Rukuba (Supreme Court Civil Appeal No. 13 of 1992)

Full judgment

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

Swastik Investment Co. Ltd v Tororo Cement Ltd (Miscellaneous Application No. 0094 of 2017) [2020] UGHC 418 (17 September 2020)
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.