Wakilii

Wahid and Sons v Munshiram and Co (CA'. 29-1932.)

East African Court of Appeal · [1932] EACA 53 · 1932 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Supreme Court of Kenya judgment in action arising from execution proceedings
Decision
Judgment of the Supreme Court of Kenya affirmed; respondents entitled to recover the money paid out to appellants

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that at the date of the prohibitory order no debt existed capable of attachment, as the contractor's entitlement was contingent on the issue of a certificate by the Director of Public Works. The assignment of future debts required registration under the Chattels Transfer Ordinance. Money paid into court to abide further order could not properly be paid out without notice to persons claiming an interest. The respondents were entitled to recover the money improperly paid out.

Outcome

Judgment of the Supreme Court of Kenya affirmed; respondents entitled to recover the money paid out to appellants

Facts

Abdul Wahid & Sons obtained judgment against T. Scammell & Noor Mohamed & Co on 26 November 1931. On 27 November they applied for execution by attachment of moneys allegedly due to the judgment-debtors from the Director of Public Works under a building contract. A prohibitory order was issued on 27 November. On 24 September 1931, the judgment-debtors had assigned to Munshiram & Co all moneys due or to become due from the Director of Public Works under the contract, as security for advances. Notice of the assignment was given to the Director. On 4 December 1931 a certificate was issued determining the amount due under the contract. On 7 December the Director paid the attached sum into court. On 11 December the money was paid out to Abdul Wahid & Sons. The assignment was registered on 24 December 1931. Munshiram & Co brought objection proceedings which were dismissed, then instituted this action to recover the money.

Issues

  1. Whether there was a debt on 27 November 1931 capable of being attached by the appellants under a prohibitory order.
  2. Whether the respondents were justified in bringing an action to recover money paid out of court to the appellants.
  3. Whether the assignment of future debts by the judgment-debtors to the respondents required registration under the Chattels Transfer Ordinance.
  4. Whether money paid into court by the Director of Public Works could be paid out to the appellants without notice to the respondents who claimed an interest by assignment.

Orders

  • Appeal dismissed.
  • Costs awarded to the respondents.

Rules and key headnotes

Civil Procedure — Attachment of Debts — Prohibitory Order — Requirement of Existing or Accruing Debt
To support a garnishee order or prohibitory order there must be a debt due or accruing due, that is, a debt either presently due or debitum in praesenti solvendum in futuro. It is not sufficient to show a contingent liability.
Contract Law — Building Contracts — Certificates — Condition Precedent to Payment
Where a building contract makes the issue of a certificate by the architect or surveyor a condition precedent to payment, no debt exists capable of attachment until such certificate has been issued. The contractor's entitlement is contingent, not absolute, until certification.
Commercial Law — Assignment of Debts — Registration — Future Debts
An assignment of debts, whether existing or future, must be registered under the Chattels Transfer Ordinance. The term 'debts' in section 26 of the Ordinance is not qualified and includes future debts. An unregistered assignment is void against attaching creditors.
Civil Procedure — Payment into Court — Property in Court — Requirement of Fresh Notice
Where money is paid into court to abide the further order of the court, it becomes property in the custody of the court. If an initial attachment order was abortive, a fresh notice is necessary to attach property subsequently paid into court.
Civil Procedure — Payment Out of Court — Mistake — Recovery
Where money has been improperly paid out of court by mistake, a person claiming to be entitled to it may recover it in a separate suit from the person to whom it was paid. The court has power to order refund of money improperly paid out.

Legislation cited (9)

Cases cited (10)

  • O'Driscoll v Manchester Insurance Committee (1915) 3 KB 499
  • Tapp v Jones (1875) 33 LT 201
  • Rogers v Kelly (1809) 170 ER 1102
  • Quilter v Mapleson (1882) 9 QBD 672
  • Spencer v Coleman (1901) 2 KB 199
  • Webb v Stenton (1883) 11 QBD 518
  • Barnett v Eastman (1898) 67 LJQB 617
  • James v Thompson (1858) 27 LJQB 234
  • Henderson v Folkestone Waterworks Co (1885) 1 TLR 329
  • Slater v Slater [1897] 1 Ch 222

Full judgment

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Wahid and Sons v Munshiram and Co (CA'. 29-1932.) [1932] EACA 53 (1 January 1932)
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.