Wakilii

Zzimwe Enterprises Hardwares & Construction v Hared Petroleum Ltd (HCT-00-CC-MA 368 of 2013)

High Court · [2013] UGCOMMC 116 · 2013 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside garnishee order nisi and garnishee order absolute arising from Civil Suit No. 102 of 2012
Decision
Garnishee proceedings set aside; applicant's advocates to be paid their legal fees of Ugx 111,315,000 immediately. Respondent free to institute separate proceedings to recover any balance claimed from the applicant.

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Holding

The court set aside the garnishee order nisi dated 18 September 2012 and the garnishee order absolute dated 12 December 2012 for failure to serve the judgment debtor (applicant) with the order nisi as required by Order 23 rule 3 of the Civil Procedure Rules. The court held that service is mandatory and failure to serve denies the judgment debtor the fundamental right to be heard. Further, legal costs awarded to advocates are not subject to attachment under garnishee proceedings to satisfy debts owed by the lawyer's client, following Makula International Ltd v Cardinal Nsubuga.

Outcome

Garnishee proceedings set aside; applicant's advocates to be paid their legal fees of Ugx 111,315,000 immediately. Respondent free to institute separate proceedings to recover any balance claimed from the applicant.

Facts

The respondent obtained a decree against the applicant in Civil Suit No. 102 of 2012. The respondent applied ex parte for a garnishee order nisi on 18 September 2012, which was issued by the Deputy Registrar, attaching legal costs due to the applicant's advocates. A garnishee order absolute was made on 12 December 2012. The applicant contended it was never served with the garnishee order nisi as required by law. The applicant asserted that all monies due to the respondent had already been attached via a garnishee order executed against Kampala Capital City Authority, which paid Ugx 178,884,096. The respondent claimed the applicant still owed further sums including interest. The affidavit of service filed by the respondent showed service of a taxation hearing notice and bill of costs, not the garnishee order nisi.

Issues

  1. Whether the garnishee order nisi and garnishee order absolute should be set aside for failure to serve the judgment debtor with the order nisi.
  2. Whether legal costs awarded to advocates are subject to attachment under garnishee proceedings to pay debts owed by the lawyer's client.
  3. Whether the affidavit of service was valid and effective.

Orders

  • The garnishee order nisi dated 18.9.2012 is set aside.
  • The garnishee order absolute dated 12.12.2012 is set aside.
  • The applicant's advocates shall be paid their legal fees amounting to Ugx 111,315,000 with immediate effect.
  • The application succeeds.
  • Costs of the application are awarded to the applicant.

Rules and key headnotes

Civil Procedure — Garnishee Proceedings — Service of Garnishee Order Nisi — Mandatory Requirement
Under Order 23 rule 3 of the Civil Procedure Rules, service of the garnishee order nisi on both the garnishee and the judgment debtor is mandatory, unless the court orders otherwise. Failure to serve the judgment debtor with the order nisi denies the judgment debtor the fundamental right to be heard and renders any subsequent garnishee order absolute a nullity.
Civil Procedure — Garnishee Proceedings — Advocates' Legal Costs — Protection from Attachment
Legal costs taxed and awarded to advocates are not subject to attachment under garnishee proceedings to satisfy debts owed by the lawyer's client. Taxed costs are payable to the advocate and protected from attachment in order to maintain the general level of remuneration that attracts recruits to the legal profession.
Civil Procedure — Service — Affidavit of Service — Requirements for Validity
An affidavit of service must specify the exact document served, the place and location of service with sufficient detail, and the identity and capacity of the person upon whom service was effected. Failure to state these particulars renders the affidavit of service irregular and ineffective.

Legislation cited (8)

  • Judicature Act s.33
  • Civil Procedure Rules O.52 r.1
  • Civil Procedure Rules O.52 r.3
  • Civil Procedure Rules O.23 r.1
  • Civil Procedure Rules O.23 r.2
  • Civil Procedure Rules O.23 r.3
  • Civil Procedure Rules O.23 r.4
  • Civil Procedure Act s.98

Cases cited (1)

  • Makula International Ltd v Cardinal Nsubuga (1982 HCB 11)

Full judgment

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Zzimwe Enterprises Hardwares & Construction v Hared Petroleum Ltd (HCT-00-CC-MA 368 of 2013) [2013] UGCommC 116 (5 June 2013)
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.