Okwi v Kirunda (Civil Appeal No. 35 of 2008) [2018] UGCA 28 (25 June 2018)

THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

[Coram: Owiny-Dollo, DCJ., Egonda-Ntende & Obura, JJA]

CIVIL APPEAL NO. 35 OF 2008 (Arising from H.C.M.A No. 317 of 2006)

BETWEEN

JULIUS OKWI APPELLANT

AND

MOSES KIRUNDA RESPONDENT

(On appeal from a judgment of High Court of Uganda (Kiryabwire, J., delivered at

Kampala on the 16^th January 2008)

JUDGMENT OF THE COURT

INTRODUCTION

1. This appeal arises out of execution proceedings. The brief facts of the case are that appellant on or about 20^th February 2004, obtained a loan from M/s Victoria Finance Company Limited in the sum of UGX 20,000,000/= and pledged his piece of land comprised in Block 216 Plot 2729 located at Buye in Kampala as security. Upon default on his payment, M/s Victoria Finance Company Limited filed a summary suit against the respondent.

2. The appellant applied for leave to defend the summary suit. The appellant did not deny the loan but sought to contest the interest charged. Leave to defend the summary suit was granted on the condition that the appellant deposited UGX

0. 000/= or its equivalent in security in court within 30 days. The appellant filed a written statement of defence but however failed to effect the total payment in court within the prescribed time whereupon Judgement was entered against the applicant on 24^th May 2005 and a decree was extracted on 1^st June 2005.

3. The appellant then filed M.A No. 477 of 2005 to set aside the Judgement entered by the Registrar and for orders that the main suit proceed. When the application

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came up for hearing the parties agreed to enter a consent Judgement and the decretal sum was to be paid within three months from the date of Judgement. The consent Judgement was not honoured and M/s Victoria Finance Co. Ltd, the respondents proceeded to execute against the appellant.

4. The appellant then filed M.A No. 844 of 2005 to stay the attachment and sale of the property on grounds that a temporary injunction had issued against the sale in the Kampala Land Tribunal. Upon inquiry by the trial court, it was established that the property had already been sold to Moses Lubega at a sum of UGX

0. 000/= which led to the withdrawal of the application. Mr Moses Lubega rescinded the sale agreement when it transpired the property in question was comprised in 2 separate titles of land and he had only purchased one title. The titles were Block 216 Plot No 2729 and Block 216 Plot No. 2732. Plot No. 2732 had been mortgaged to another person.

5. The Judgment Creditor then applied for attachment and sale of both plots of land. A warrant was issued by the registrar for attachment and sale of the said two plots of land dated the 16^th January 2006. The property was advertised in Bukede Newspaper of 21^st January 2006 and sold on the 20^th February 2006 to M/s Good Rest Ltd for the sum of Shs.50,000,000.00.

6. The appellant filed M.A No. 317 of 2006 (from which this appeal lies) challenging the validity of the sale / execution on the ground that the sale was illegal and thus null and void. The respondent in this appeal was added as a party being the court bailiff who conducted the sale. Kiryabwire, J., (as he then was),

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held that the execution / sale was valid and lawful and dismissed the application on 16^th January 2008.

7. The appellant being dissatisfied with the decision of the learned trial Judge filed this appeal on 2^nd June 2008 setting forth the following grounds of appeal.

‘(1) That the learned Judge erred in law in finding the execution was valid/lawful and in declining and or failing to set aside the alleged sale.

2. That the learned Judge erred in law by relying on the evidence not on the record and failing to properly evaluate the evidence before court consequently coming to a wrong conclusion.

3. That the learned Judge erred in law in ordering the appellant to deliver his title to court without setting aside the sale and in the alternative ordering for the issuance of a special Certificate of Title.’

8. The appellant prays that this court sets aside the ruling of the High Court; sets aside the sale of plot no. 2732 and restore it to the appellant with costs here and below. The respondent opposed this appeal.

SUBMISSIONS OF COUNSEL

9. At the hearing, the appellant was represented by Mr. Ojambo Robert Mugeni and the respondent by Mr. Kandeede Ntambirweki. Counsel agreed to rely on their scheduling notes as their written submissions in this appeal.

10. Mr Kandeebe Ntambirweki raised a point of law under Rule 78(1), 82 of this court apparently raised in M. A No. 101 of 2009. He contends that this appeal is incompetent because the appellant did not serve M/s Good Rest Ltd as a person directly affected by the appeal under Rule 78(l).That M/s Good Rest Ltd is the current proprietor of the property whose sale is the subject of the appeal and the appellant was aware of this fact. In his conferencing notes the respondent relies on the case of Sam Kirembwe v Attorney General Civil Application No. 53 of

2004. (unreported) and Nvasio Micah v Nuwa Walakira, Supreme Court Civil Appeal No. 14 of 2002 (unreported) for the proposition that service of notice of appeal on a person affected is an essential step within the meaning of Rule 82 of the Court of Appeal rules. He cites The Environment Action Network Ltd v Attorney General and others. Court of Appeal Civil Application No. 63 of 2003 (unreported); Nyine Bitahwa v L. I. Ndyanabo, EPA No. 14 of2002 (unreported) for the proposition that failure to serve affected persons is fatal to the appeal. He avers that the prayers the appellant is seeking from this Court directly affect the proprietary interest of Good Rest Ltd in the land hence it was fair and necessary to serve it the notice of appeal under Rule 82 of this court. He also relied on

Horizon Coaches Ltd v Francis Mutabazi, Supreme Court Civil Appeal no. 20 of

2001 (unreported).

11. Counsel for the respondent submitted that M/s Good Rest Ltd was duly served by way of substituted service in the Daily Monitor newspaper and the affidavit of service dated 30^th October 2017 is on court record as evidence of service. Counsel further submits that the applicant has not obtained the leave of this court to proceed under Rule 82.

12.On the first ground, counsel for the appellant submits that at the time of the purported sale on 20^th February 2006, neither the duplicate certificate of title nor a special certificate of title for the appellant’s property comprised in Buye Block 216 plot 2732 had been deposited in court contrary to sections 48(1), (2) (3) and (4) of the Civil Procedure Act which is mandatory. There were other irregularities that in effect render the sale null and void. The special certificate of title was issued after the sale of the land to M/s Good Rest Ltd contrary to the law. Further that the special certificate of title, which the respondent alleges was issued under Section 71 of the Registration of Titles Act was issued contrary to the provisions of the said law. He concluded that the sale was by private treaty contrary to court orders and the law. Counsel for the appellant cited the case of Rosemary Eleanor Karamagi v Angoliga Malimouda, Miscellaneous Application No. 733 of 2005 (unreported) in support of his submissions.

13.In reply counsel for the respondents submits that the learned trial Judge found rightly that the execution was valid and lawful. He contends that the land comprised in Buye Block 216 Plot 2732 was lawfully attached and sold. He referred to the ruling of the trial court where the court held that the absence of the

title in Plot 2732 should not fault the sale to a willing and innocent buyer which sale did not prejudice the applicant at all. He further submits that the certificate was issued under section 48(4) of the Civil Procedure Act and not section 71 of the Land Act as the respondent alleges. He argues that if the issuance of a new certificate of title was under section 71 of the Registration of Titles Act CAP 230 and not a specific law preferred by the appellant, that mistake can be cured by the principle laid down in Katondwaki v Biraro, 1977 HCB 36. The respondent in his submissions alleges fraud on the part of the appellant.

14.On the second ground, Counsel for the appellant submits that the trial Judge failed

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to evaluate the evidence on record and came to a wrong conclusion. He submitted that plot 2729 and plot 2732 are separate and independent properties. The applicant did not pledge the title for plot 2732 as security and the conclusion by the learned trial judge to that effect is not supported by any evidence. He relies on the affidavit evidence on record and the case of Gandesha v Lutaava, S.C.C.A No. 14/89 for this submission. Furthermore that the court’s conclusion that if the property was valued at UGX 300,000,000/= the appellant would not have accepted a cheque of UGX 35,000,000/= was a misinterpretation of the evidence and a lack of evaluation by court. Section 48 of the Civil Procedure Act relates to title and not possession and section 33 of the Judicature Act which the trial court relied on is not a licence to disregard the law. He submits that section 33 Judicature Act must be read in light of section 14(2) of the Judicature Act. Counsel for the respondent reiterated by submitting that the learned trial Judge properly evaluated the evidence on record and came to the right conclusion.

15.On the third ground, counsel for the appellant submits that due to the irregularities and blatant disregard of the procedure laid down by the law which is mandatory,

the learned Judge should not have ordered the appellant to deliver his duplicate certificate of title in court or in the alternative ordering the issuance of a special certificate of title without setting aside the sale. He relies on Rosemary Eleanor Karamagi Vs Angoliga Malimouda (supra). That the alternative order of the trial court for the issuance of a special certificate would mean authority to create a second special certificate of title without cancelling the first which is an absurdity.

ANALYSIS

16. The respondent has raised a preliminary point of law under Rules 82 and 78(1) of the Judicature (Court of Appeal Rules) Direction. Rule 78(1) states as follows;

“An intended appellant shall, before or within seven days after lodging notice of appeal, serve copies of it on all persons directly affected by the appeal; but the court may, on application, which may be made ex parte, direct that service need not be effected on any person who took no part in the proceedings in the High Court.”

16. The respondent claims that M/s Good Rest Ltd, which has a proprietary interest in the suit property was not served with a notice of appeal as required under Rule 78(1). He relies on the cases of Sam Kirembwe v Nuwa Walakira, SCCA 24/94, Horizon Coaches v Francis Mutabazi, CA No. 20 of 2001 and The Envireomental Action Network Ltd v Attorney General (supra).

17. The response of the appellant was that this same point had been raised earlier on in an application brought by the respondent before this court. This court had ordered the appellant to serve Good Rest Ltd which he had done by way of

substituted service. M/s Good Rest Ltd was not a party in the original proceedings. This information was supplied from the bar.

19.In this regard the counsel have been less than helpful in supplying information to this court on this point. If this matter had been the subject of earlier adjudication by this court it is improper to raise it again. I tried to trace the application in question. It was registered as Miscellaneous Application No. 101 of 2009 filed by the respondent seeking to strike out the notice of appeal on the ground that not all parties affected by the appeal, and in particular M/s Good Rest Ltd, had been served with a notice of appeal. The file that was brought to my attention does not contain any proceedings or ruling on the matter. The problem may be record keeping of this court. Nevertheless counsel in this appeal, especially counsel for the respondent, who brought this application should have been more forthright as to what had actually happened to this application.

20. It would have been desirable in order to prevent a multiplicity of proceedings that both the judgment debtor and the party that purchased the property in issue were parties to the proceedings in the High Court. Unfortunately the judgment creditor was released from the proceedings and the purchaser of the property was not made a party. These lapses may have consequences but they do not make this appeal incompetent. The parties to the decision that is challenged are before this court. The respondent is the actor responsible for the actions challenged as unlawful. This is sufficient for this appeal to proceed.

21. We wish to observe that M/s Good Rest Ltd was not a party in the original proceedings unlike in the cases of Sam Kirembwe v Nuwa Walakira, SCCA 24 of 1994 (unreported) and Horizon Coaches v Francis Mutabazi, SCCA No. 20 of

2001 (unreported) that the applicant is relying on. In each of those cases it was actually a party to the original proceedings that had not been served with the notice of appeal within the prescribed time. On that ground alone those cases are distinguishable from this appeal.

20. Neither is The Environment Action Network Ltd v the Attorney General of Uganda Court of Appeal Civil Application No. 63 of 2003 (unreported) applicable to the facts of this case. What was challenged under this rule was the failure to make a party to the original proceedings, NEMA, a party on appeal, and serve it with a copy of the notice of Appeal. This case is distinguishable from the facts of this case.

21. We dismiss the preliminary objection.

Ground 1

20. The law sets out an elaborate procedure for the sale of immoveable property in the Civil Procedure Act and the Rules thereunder. Under Section 48(1) of the Civil Procedure Act and Order 22 rule 51(1) of the CPR, the duplicate certificate of title or special certificate of title has to be deposited in court before the sale. This provision is mandatory. Under subsection 2, the court ordering the sale has power to order the judgment debtor (in this case the Appellant) to deliver up the duplicate certificate of title to the property to be sold or to appear and show cause why the certificate of title should not be delivered up. Sections 48(3) and (4) lay down the procedures to follow in case the Judgement debtor has not complied with the order.

21. Section 48 of the Civil Procedure Act states,

Alfonse Owiny-Dollo Deputy Chief Justice

Egonda-Ntende

Justice of Appeal

Hellen Obura

Justice of Appeal

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