THE REPUBLIC OF UGANDA,
IN THE HIGH COURT OF UGANDA
MISCELLANEOUS APPLICATION NO 130 OF 2013
(ARISING FROM CIVIL SUIT NO. 295 OF 2013 AND HCT – EMA NO 1809 OF 2012)
KIBERU JOSEPH MUKASA}............................................................... APPLICANT
BUTEBI INVESTMENT ENTERPRISES LTD}...................................... RESPONDENT
BEFORE HON JUSTICE CHRISTOPHER MADRAMA IZAMA
The Applicant commenced this application under the provisions of order 36 rule 11 of the Civil Procedure Rules and section 98 of the Civil Procedure Act for orders that the decree passed by this court on 4 September 2012 is set aside, execution of the said decree is set aside; the applicant is given leave to appear to the summons and defend the suit and the costs of the application are provided for.
The grounds of the application are that the applicant has never been served with summons to defend the suit. Secondly the execution of the decree was illegally done. Thirdly the applicant has a good defence to the suit because he is not indebted to the respondent at all and lastly that it would be just and equitable that the decree is set aside, the execution is set aside and the applicant is allowed to appear and defend the suit. The notice of motion is further supported by the affidavit of the applicant and that of his wife Mrs Susan Nanganda. The facts of the application as contained in the affidavit of the applicant are that on 4 September 2012 a default judgement was entered by the court against him and in favour of the respondent for Uganda shillings 83,500,000/= as money allegedly owed to the respondent, 25% interest on the decreed sum and costs. The basis of the default judgement was that the respondent through one Fred Kironde allegedly served the applicant with court summons dated 31st of August 2012. He asserts that it is not true that by 30th July 2012 he owned a shop at Nabukeera Plaza because he last owned a shop at that place in January 2012. This is confirmed by the local Council 1 chairman of the area in a letter addressed to his lawyers dated 21st of February 2013. In October 2012 he was arrested and taken to the registrar of the High Court whom he thought was the presiding judge and he advised him to settle the matter out of court. Thereafter he was taken to the Chambers of the respondent's advocate from where the respondents agent Mr Godfrey Buwembo requested that he pays interest on the principal sum of money the respondent had lent him amounting to Uganda shillings 50,000,000/= inclusive of the lawyers costs. He agrees that in January 2012 the respondent through its agents advanced him a sum of Uganda shillings 49,000,000/= as a friendly loan and it attracted a processing fee of Uganda shillings 1 million which they agreed upon. It was agreed that interest will be Uganda shillings 4000/= for every Uganda shillings 1 million per day consequently interest of Uganda shillings 50,000,000/= would be Uganda shillings 200,000/= per month. This amount to Uganda shillings 6,000,000/= per month. An agreement was signed to that effect and the applicant issued two undated cheques. One cheque was for Uganda shillings 29,000,000/= and another for Uganda shillings 34,500,000/= as security and they were not supposed to be presented or banked. The applicant deposes that thereafter he paid the respondent through his agent Mr Buwembo Godfrey in instalments but he did not give him any receipt and only wrote in his book. He had informed him that he would keep all the records of the transaction. By June 2012 the deponent avers that he had paid the entire principal sum to the respondent save for the interest which he informed them that they should agree on and come to an understanding.
He was surprised when he was arrested and taken to court on the same matter. He was further surprised to see that his house had been advertised for sale and when his wife Susan Nanganda saw the advertisement she confronted him about the same. He was evicted from the house on 11 December 2012 and informed that he had executed a consent order to the effect on 3 October 2012 before the honourable Registrar of the High Court when he had not done so. The applicant asserts that he never signed any document before the registrar of the High Court and that he does not know how to write or read English as he stopped in primary four. Secondly he asserts that the court bailiff Mr Fidel Bariyo is a fraudulent bailiff who was not even supposed to carry out the execution. On 26 September 2012 the respondent's lawyers wrote to the registrar of the High Court notifying him that the said bailiff was a fraudster. The execution was marred by apparent irregularities and should be set aside.
The applicant contends that he has a plausible defence to the suit before the court and prayed that he is allowed to defend himself. The houses from which he was evicted together with the land is in the range of Uganda shillings 300,000,000/= and the property was valued at more than Uganda shillings 200,000,000/=.
The second deponent is the wife of the applicant Mrs Susan Nanganda. Her testimony is that she has been the wife of the applicant since 2009 and had built houses on the property from which they were evicted by the respondent’s evidence on 11 December 2012. They were married under customary law. By the time they were evicted they were not served with any court documents or summons to appear in court. She repeats that her husband the applicant had by July 2012 never run a shop at Nabukeera Plaza and it was impossible for him to be served with any court document at that place. The house from which they were evicted was jointly built by herself and her husband and it was the family's matrimonial property. She confirms that she came to know about the consent judgement in execution in October 2012 when he saw the Monitor newspaper ads and confronted the applicant/her husband. She objected to execution through her lawyers Messieurs Luzige Kamya, Kavuma and company advocates in miscellaneous application number 667 and 668 of 2012 but the same was never fixed for hearing by the time they were evicted by the respondent’s agents. She confirms that her husband can neither read nor write in English. Since January 2012 her husband was always at home because he had no specific job.
The affidavit in reply of the respondent is sworn by one Bariyo Fidel, a bailiff of the court. He avers that the application is amounts to an abuse of the process of court as it attempts to misdirect the court. He was issued with a warrant of attachment and sale in execution in High Court civil suit number 1809 of 2012 arising from civil suit number 295 of 2012 on 5 October 2012. He subsequently advertised the property for sale in the daily monitor newspaper of 11 October 2012 and also notified the applicant to vacate the property to pave way for inspection unless he paid the decretal sum. The applicant was given opportunity to make payment before the sale of the property that he failed to save and subsequently the property was sold by public auction to Fred Lwembawo who paid a sum of Uganda shillings 102,000,000/=. Before the sale the property was duly value and the valuation approved by the court who issued an order of sale dated 30th of October 2012. After the sale the court issued a warrant to give vacant possession to the purchaser and after clearance with the police the purchaser was put in possession of the property and execution completed. He contends that the execution was conducted lawfully and the sale of the attached property was not fraudulent as alleged by the applicant. The applicant personally signed the consent order on execution of the decree in his presence and after he had been produced in court before the Deputy Registrar Execution and Bailiffs Division before whom the applicant admitted the debt and offered his property for attachment and sale voluntarily. Prior to this sale several attempts were made through demands for the applicant to make payment before sale of the applicant’s property. Consequently the applicant's application is riddled with falsehoods because the applicant personally signed the consent order on execution of the decree and was duly notified of the sale and the sale was conducted lawfully and application ought to be struck out. He arrested the applicant on 3 October 2012 and notified him that he was being arrested in execution of the decree in civil suit number 295 of 2012.
The second affidavit in reply is that of Mr Francis X Katabalwa, an advocate of the High Court who conducted HCCS number 295 of 2012 on behalf of the respondent company. He avers that the application is false and an abuse of the process of court as it attempts to misdirect the court. It is true that judgement was entered against the applicant for the money owing to the respondent. However the applicant was duly served with summons and plaint in civil suit number 295 of 2012 by Fred Kironde the process of the law firm in the presence of Geoffrey Buwembo the respondents loans officer and also in the presence of one Nantege Roy a local Council one official of the area where the defendant conducted business but the applicant refused to sign on the summons and retained copies of the summons and plaint according to the affidavit of service on court record. The applicant assertion that he did not operate any business where he was served is false in that they operated a business at shop number F4 Nabukeera Plaza and was personally served with summons and plaint in civil suit number 295 of 2012 the said shop on 30 July 2012. The applicant was found in the shop at the time he was served and in any case that was his last known business address.
When the applicant appeared before the registrar of the executions and bailiffs division of the High Court he acknowledged his indebtedness to the respondent and indicated that the property which will be attached and sold to recover the money rather than be committed to civil prison. He also informed court that he was looking for buyers for the property at that time. Secondly it was the registrar who advised the parties to settle but it was the applicant who voluntarily offered his customary interest in land and buildings comprised in block plot 542 to be sold. After admitting the judgement debt in court the applicant went with him to his chambers after he had agreed to sell the property in court and the consent was reduced into writing and duly executed between the deponent, the applicant and Bariyo Fidel and also in the presence of Geoffrey Buwembo.
Additionally the averments on how much the applicant owed the respondent by the applicant's are false in so far the applicant obtained Uganda shillings 83,500,000/= from the respondent whereupon he issued two cheques which were presented for payment but were dishonoured leading to the filing of civil suit number 295 of 2012. Furthermore paragraph 9 of the applicant’s affidavit is false in so far as the applicant voluntarily offered the two cheques dated first of June 2012 which he asked the respondent to bank but they were returned unpaid and notice of dishonour was communicated to the applicant. Paragraph 10 of the applicant's affidavit is false in so far as they never made any payment to the respondent or an agent of the respondent. By June 2012 the applicant owed the respondent Uganda shillings 83,500,000/= and he asked the respondent to bank the cheques. The applicant was further fully aware of the court process having been served with a summons and plaint on 30 July 2012. The applicant was fully aware that he had offered the property for attachment and sale on 3 October 2012. The applicant was evicted from the property he had offered for attachment and sale and was fully aware that he had consented to the attachment and sale and even executed a written consent in the presence of the deponent and the bailiff of the court. The applicant personally and voluntarily signed the consent of 3 October 2012 and was recorded in court on the same day in the presence of the deputy registrar. The court bailiff had been properly appointed by the court executing the warrant of arrest in execution and the court subsequently issued another warrant of attachment and sale and there was no fraud in the process of execution. Consequently the application ought to be struck out with costs for alleging fraud without giving particulars of the alleged fraud. The applicant does not have a defence to the suit because he has never paid the money owed the respondent after he issued the cheques upon which the civil suit was based.
As far as valuation of the property is concerned, the land in question was duly valued by a professional value prior to the sale and the court issued an order of sale after valuation. After the sale, the purchaser was put into possession of the property and the respondent no longer has any interest in the attached property which was duly sold following orders of the court. In reply to the affidavit of Susan Nanganda, counsel avers that the affidavit is false because the respondent has never evicted the applicant and his wife from the alleged houses and the eviction was conducted by bailiffs duly appointed by the court and not the respondent. The applicant was duly served court process at shop number F4 Nabukeera Plaza. The deponent reiterated his averments in reply to the affidavit of the applicant in support of the application.
A further affidavit in reply was sworn by Roy Nantege and LC 1 official. He avers that he was conversant with the manner in which summons and plaint were duly served upon the applicant. On 30 July 2012 he was approached by the respondents Loans Officer one Geoffrey Buwembo who was in the company of a gentleman who identified himself as a clerk with the law firm of Messieurs Katabalwa and Company Advocates. He escorted them to the applicant’s place of business at Nabukeera Plaza first floor shop number F4 where he met the applicant around 2.30 5 PM. The applicant refused to acknowledge service but he retained a copy of the summons and plaint. Consequently she asserts that both affidavits in support of the application in the relation to the service of summons are false.
Finally the last affidavit in reply is that of Geoffrey Buwembo the Loans Officer of the respondent company. He reiterates the facts averred in the other affidavits that the applicant was served with court process by Fred Kironde in his presence and in the presence of Nantege Roy the LC 1 official. Secondly he reiterates the assertions in the other affidavits that the applicant was brought before the registrar execution and bailiffs division of the High Court and acknowledged his indebtedness to the respondent and indicated which property should be attached and sold to recover the money rather than be committed to civil prison.
The applicant never effected any payment to the respondent and the respondent does not have any agent called Godfrey who ever received money from the applicant as alleged. The applicant would have been given a receipt for the payment had he paid any money. By June 2012 the applicant still owed the respondent Uganda shillings 83,500,000/=. Primarily Mr Buwembo Geoffrey repeats the averments in the affidavit of Francis Katabalwa.
At the hearing of the application, the applicant was represented by Counsel Mukasa Lugalambi Fred while the respondent was represented by Counsel Samuel Kiriaghe. Both counsels filed written submissions for and in opposition to the application.
The applicant submitted on four issues namely:
- Whether the ex parte decree was properly entered by court.
- Whether the applicant has a plausible defence in the matter.
- Whether the execution was proper.
- What remedies are available to the applicant if any?
Whether the ex parte decree was properly entered by the court
As far as the contention of the applicant that he was not served is concerned, counsel relied on the affidavits in support of the application and the averments of the local Council 1 chairman of the same area Mr Moses Katabazi in his letter dated 21st of February 2012. As far as the LC 1 chairperson Roy Nantege is concerned, she does not state what her role as the LC 1 committee is and deceived the court that the applicant had a shop in the area. He contended that the respondent all along knew where the respondent resided but failed to deliver summons to a place where the applicant had no permanent residence, a place where he had no shop or tenancy. He submitted that these were tricks by the respondents and his lawyers to obtain an ex parte decree so that the applicant is frustrated and with no defence.
In reply counsel relied on the affidavit of service by a duly authorised process server on the court record which has not been challenged. The service was personal and effected in the presence of Buwembo Geoffrey and Nantege Roy who have sworn affidavits in opposition to the application. The affidavits have not been controverted in anyway by the applicant. The applicant has only claimed that he did not operate a business at shop number F4 Nabukeera Plaza where he was served. Counsel further submitted that under order 36 rule 11 of the Civil Procedure Rules, the court can only set aside the decree if it is satisfied that the service of the summons was not effective or for any other good cause which shall be recorded, if it seems reasonable to the court to do so. The respondents counsel submitted that there was effective service of summons and there is no other cause on which the honourable court would set aside the decree. It was too easy for a defendant to deny service in the hope of delaying justice and it was to be wondered if he had not been served, why he executed the consent order upon execution proceedings and thereby admitting the debt.
In rejoinder the applicants counsel reiterated submissions.
I have carefully considered the submissions and the evidence on the first issue which is whether the ex parte decree was properly entered by the court. The issue was framed on the basis of order 36 rules 11 of the Civil Procedure Rules which provides as follows:
"After the decree the court may, if satisfied that the service of the summons was not effective, or for any other good cause, which shall be recorded, set aside the decree and if necessary stay or set aside execution, and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the court so to do, and on such terms as the court thinks fit."
The first issue revolves on the question of whether the service of summons was not effective. If the service was not effective, then the court would set aside the decree.
The controversy on the first issue revolves on questions of fact. The applicants contended that there was no effective service because at the time when service was allegedly made, the applicant had no shop at Nabukeera Plaza. The applicant relies on a letter from the Local Council 1 Chairman dated 21st of February 2013. It is written on the letterhead of Shauriyako “A” village and reads as follows:
"This is to certify that the above named person was once a tenant in our area until January 2012, ever since that time he has no shop in our area.
Any assistance given to him is highly welcome."
The letter is written by Moses Katabazi and bears the stamp of the local Council village. It refers to the applicant.
On the other hand the respondent relies on the affidavit of Nantege Roy a female Ugandan stated to be an LC 1 official of the same division. She avers that the applicant was served in her presence. Similarly Mr Geoffrey Buwembo in his affidavit in reply avers that the applicant was served in his presence. Finally the affidavit of Francis X Katabalwa is to the effect that the applicant was served by Kironde Fred a court process server of his firm.
The affidavit of Fred Kironde is dated 31st of August 2012 and was filed on court record on 3 September 2012. The court relied on paragraphs 3 of that affidavit to enter judgement. Paragraph 3 thereof avers as follows:
"That on the same day I was accompanied by Mr Buwembo Butebi Investment Enterprises Ltd and the chairperson Nantege Roy… Village, which proceeded to the shop situated on ... Street Nabukeera Plaza first-floor shop number F4, when we reached there, I explained the purpose of my visit to Mr Kiberu Joseph Mukasa; I handed over the summons to file a defence with the other documents to him. He accepted service but he refused to sign on my copy. He returned it to me and remained with his copy. Time was around 2: 40 p.m. ... chairperson witnessed my copy Ms Nantege."
The return attached has a hand written notes showing that service was effected on the applicant in her presence. It has an oval stamp of the LC village zone "B". The letter attached to the affidavit of the applicant also has a stamp which is rectangular in shape and is of zone "A".
Service is supposed to be effected in person on the defendant under the provisions of order 5 rule 10 of the Civil Procedure Rules which provides as follows:
“Wherever it is practicable, service shall be made on the defendant in person, unless he or she has an agent empowered to accept service, in which case service on the agent shall be sufficient.”
The rule does not provide for the place of service as far as the individual sought to be served is concerned. However, the contradictory assertions of the local Council 1 chairpersons are troubling. They come from two different zones. I have checked annexure "C" being a notice of dishonour of cheques written to the applicant by the respondents lawyers dated 16th of June 2012. In that later the address of the applicant is Mutundwe Kigagga Kampala. Why was it not addressed to Nabukeera Plaza F4? Furthermore another letter dated 16th of May 2012 addressed to the applicant has the same address as the letter of 16 June 2012. The two letters demonstrate one important fact which raises a reasonable doubt in the mind of the court as to whether the applicant was indeed operating a business in Nabukeera Plaza on 30 June 2012 when he was allegedly served. I am satisfied that the applicant’s assertion that he did not operate a business between January and June 2012 at Nabukeera Plaza is much more plausible than the assertion of the respondents. Because the respondent’s lawyers were aware and indeed addressed their letter to a different address in May and June 2012, I will go with the assertion of the applicants that the applicant was never served and got to know about the court proceedings when he was arrested in the process of execution.
On the basis of the above findings, the decree of the court dated fourth of September 2012 is set aside under the provisions of order 36 rule 11 of the Civil Procedure Rules. In that rule the satisfaction of court is subjective and based on the materials on court record. The applicant never put in any application for leave to appear and defend and has expressed a desire to defend the action. Service of summons was not effective. It would have been effective if it was proved that the applicant carried out business in Nabukeera Plaza at the time of service. In such a case it would have been sufficient to leave the documents at the place of business.
Whether the applicant has a plausible defence in this matter?
The applicant submission in this respect is that the applicant borrowed Uganda shillings 49,000,000/= in January 2012 and the parties thereafter executed an agreement and the respondent retained the agreement. The applicant had paid the loan and the respondent remained with two undated cheques which were to act as security. Thereafter the parties disagreed on the amount of accumulated interest. Counsel submitted that the summary plaint indicates that the cheque was issued for valuable consideration but does not indicate what that valuable consideration is. Secondly the affidavit in support of the summary plaint repeats that the cheque was issued for valuable consideration but does not indicate what that consideration is.
In reply the respondent’s case is that the applicant is bound to pay the amount on the cheques. He relied on several authorities for this submission. These included the cases of Naris Byarugaba VS Shiva  HCB 71; Dembe Trading Enterprises Ltd vs. BIDCO (U) Ltd MA 0152 of 2008 arising from HCCS No. 0026 of 2008 ; Maersk Uganda Ltd vs. First Merchant International Trading td HCCS No. 143 of 2009 and Kotecha vs. Mohammad  EA 112.
In rejoinder the applicants counsel submitted that the cheques once issued prima facie indicates that there is a transaction between the parties. However one party should not be denied audience simply because the cheque was dishonoured. He submitted that the authorities do not indicate that issuance of a cheque which bounces does not mean that there is no defence at all and that the defendant ought not to be heard.
I have carefully considered the submissions. In such cases, there is no defence to a cheque which bounces. The only defence is that the payment which was made by way of a cheque had been paid in cash. It is purely a question of fact whether the applicant paid the money. The applicant asserts that he issued cheques as security. The authorities are clear that a cheque once issued is money and can be cashed. It cannot operate as security unless it has the potential of being presented for payment. The applicant asserts that the cheque was undated. Again issuing a cheque and not dating it is not a defence. A party has authority to issue a blank cheque which may be filled by the person in whose names it is issued. It is purely a question of trust. In the previous cases, on the assertion of the defendant that he or she has paid the face value of the cheque in cash, ordinarily conditional leave to appear and defend the suit would be granted. The question of fact therefore remains as to whether the applicant had paid. Secondly the transaction the basis of the decree was a loan agreement. The loan agreement was not attached to the plaint. The loan agreement would have given the terms of the agreement. The applicant asserts that the respondent retained the agreement. I further agree with the applicant’s counsel that the plaint indicates that the cheques were issued for valuable consideration but does not give the material facts upon which the cheques were issued. If it was indeed a loan, and it appears to be so, the agreement of the parties should be attached. The applicant asserts that there was an agreement other than the issuance of the cheques as security. In those circumstances, the applicant has a plausible defence not on the basis of the cheques but on the basis of his liability under the loan agreement. In those circumstances, conditional leave to appear and defend the suit would have been proper. However because the applicants property has been sold and the respondent has purportedly recovered its money, the question of whether leave to appear and defend the suit should be conditional shall be decided after determining the last issue on whether execution was lawful.
Whether the execution was proper?
The applicants submission is that execution must be set aside since it was wrongful. A court broker has a duty to ensure that he is executing a lawful order as was held in the case of Fenekasi Semakula versus Musoke  HCB 51. He submitted that execution was also irregular. He submitted that once irregular executions are carried out, they must be set aside especially when they arise from a void document as held in the case of Bushell versus Timson  2 KB at page 79. As far as the facts are concerned counsel submitted that execution was improper, illegal and falsely obtained in that the applicant is an illiterate person who cannot read and understand English at all. The consent order dated 3rd of October 2012 was improperly entered because it was never entered before the registrar. There is no record that the applicant at the material time was at the Registrar's Chambers and proceedings of the court are very clear on this. The Respondent's Advocates went to their Chambers, drafted the order and filed it in court without the applicants input. The applicant as an illiterate person and could not understand the contents of the document and therefore the document cannot stand. Alternatively the consent order provides that the sale of the house must be done with the participation of the applicant and this was not done at all. The applicant was just evicted from his house without participating in the purported sale as the said consent order stipulates.
In reply the respondents counsel submitted that the cheques the applicant printed were in the English language and he personally issued them without indicating his alleged illiteracy. The respondent and its counsel could not have guessed that the applicant was illiterate. The consent in any case was made with the input of both the applicant and the respondent's advocate at the material time. The applicant personally signed the consent order which was then presented to the deputy registrar for endorsement after the parties had earlier on appeared before the deputy registrar before whom the applicant had admitted his indebtedness and offered the suit property in satisfaction of the debt. The alleged illiteracy of the applicant had never been brought to the attention of the respondent or its advocate at the time the consent order was signed. The applicant was called upon to participate in the sale but he chose not to do so according to the affidavits of Fidel Bariyo. Notice of the sale was also given to the applicant and who was requested to pay what he could before the date of the sale but he did not do so. The property was duly advertised for sale in accordance with the law and subsequently sold in execution of the decree. There was nothing illegal or irregular about the court process. If execution had been illegal, the bailiffs of the court would have been sued as well.
Execution was completed by the attachment and sale of the applicants land comprised in Kibuga block 35 brought 542. The land was lawfully attached, advertised for sale, professionally valued and subsequently sold pursuant to an order of the court in HCT – EMA 1809 of 2012. The applicant was aware of the whole process. Secondly the purchaser had not been joined in the proceedings and the court cannot at this stage set aside execution since the sale was completed. The court should not order setting aside execution which will affect third parties who are not parties to the proceedings. Counsel relied on the case of Moses Kamya versus Sam Lukwago and two others High Court miscellaneous application number 271 of 2010 arising from HCCS number 411 of 2009. He submitted that a purchaser in good faith acquires good title even if the execution was irregular unless it was altogether void. Counsel submitted that on the basis of the above, the execution cannot be set aside. Counsel further relied on section 49 of the Civil Procedure Act for the proposition that the sale of immovable property shall become absolute upon payment of the full purchase price to the court or the person appointed to conduct the sale.
In rejoinder the applicants counsel submitted that the consent judgement was executed in the court before the registrar. The subsequent sale of the applicant’s house is based on a null and void order of court. Whoever bought the house can recover damages from the person who sold. Moreover the applicant is an illiterate person, a fact not disputed in the affidavit in reply. As far as fraud is concerned the respondent's lawyers wrote a letter dated 26th of September 2012 indicating that the bailiff was fraudulent. This letter has not been denied by the respondent in the affidavits in reply. It clearly stipulates that the bailiff had no instructions from the respondent's lawyers. The bailiff was acting without instructions of the respondent and his actions ought to be set aside. He ceased to be an agent of the court. Finally counsel submitted that illegality once brought to the attention of the court, overrides any other matter.
I have carefully considered the question of illegality in execution on the basis of the consent order. The consent order on execution of decree is dated 3rd of October 2012. It reads as follows:
"This matter coming for final disposal before the deputy registrar – High Court, Execution Division his worship Isaac Muwata in the presence of Mr Francis X Katabalwa counsel for the judgment creditor/plaintiff and the judgement debtor/defendant Kiberu Joseph Mukasa and in the presence of Bariyo Fidel – bailiff, in the presence of the representative of the judgement creditor Buwembo Geoffrey, IT IS HEREBY: – BY CONSENT ORDERED AS follows: –
That the property residential houses of the judgement debtor Kiberu Joseph Mukasa found on Kibuga Kyadondo block 35 Plot 542 at Mutundwe, Rubaga Division Kampala be attached and sold with the participation of the judgment debtor Kiberu Joseph Mukasa to recover the judgement debt within 30 days."
The court record shows that on 31 October 2012 Susan Nanganda filed miscellaneous application number 667 of 2012 objecting to attachment of her matrimonial house namely Kibuga Kyadondo block 35 plot 542 being a customary holding on the property and seeking for release of the property from attachment in execution of a decree in HCCS number 295 of 2012. The application was never issued by the registrar. Susan Nanganda also filed miscellaneous application number 668 of 2012 seeking stay of execution of the consent order in civil suit number 295 of 2012 pending the disposal of the objector application. In that application she included the applicant in this current application who is her husband as the second respondent. At that time she was aware that there was a written consent order between her husband/the applicant and the respondent to this application. The application was however never heard and the property was sold.
I have further considered the evidence on the fact that the applicant is an illiterate person. The respondent did not question or dispute the question of fact that the applicant is an illiterate person. An illiterate person is defined by section 1 of the Illiterates Protection Act cap 78 laws of Uganda to mean in relation to any document, a person who is unable to read and understand the script in the language in which the document is written or printed. In this case the evidence is that the applicant can neither read nor understand the English language. He is therefore an illiterate person protected by the provisions of the Illiterates Protection Act. The protection of such persons is governed by sections 2 and 3 of the Act and particularly as far as is relevant section 3 thereof. The sections provide as follows:
“2. Verification of signature of illiterates.
No person shall write the name of an illiterate by way of signature to any document unless such illiterate shall have first appended his or her mark to it; and any person who so writes the name of the illiterate shall also write on the document his or her own true and full name and address as witness, and his or her so doing shall imply a statement that he or she wrote the name of the illiterate by way of signature after the illiterate had appended his or her mark, and that he or she was instructed so to write by the illiterate and that prior to the illiterate appending his or her mark, the document was read over and explained to the illiterate.”
“3. Verification of documents written for illiterates.
Any person who shall write any document for or at the request, on behalf or in the name of any illiterate shall also write on the document his or her own true and full name as the writer of the document and his or her true and full address, and his or her so doing shall imply a statement that he or she was instructed to write the document by the person for whom it purports to have been written and that it fully and correctly represents his or her instructions and was read over and explained to him or her.”
It is apparent that the consent order was written for the applicant who is an illiterate and for the respondent to endorse for purposes of issuing an order of the court on the terms agreed upon. Consequently the document was issued in contravention of section 3 of the Illiterates Protection Act. Secondly it is a requirement for the person who translated the document to the illiterate to write his or her truthful names and address. Failure to do so is an offence under section 4 of the Illiterates Protection Act. In other words before the registrar endorsed the consent order on execution of decree, it had been executed by the applicant and the respondents lawyers in contravention of section 3 of the Illiterates Protection Act. A consent order or judgment and as far as it operates between the parties to it is a contract. In as far as it is a contract made in contravention of a statute, and furthermore in so far as the statute penalises the endorsement of a document contrary to the provisions of sections 2 and 3 of the Illiterates Protection Act, the contract is illegal.
According to the Law of Contract in Uganda by DJ Bakibinga contracts which violate a statute are regarded as void and not illegal. The author writes:
"The distinction between void and illegal contract is that a void contract is one where for instance a statute requires certain formalities to be carried out as a condition precedent for its validity, but without imposing a penalty for nonperformance. Failure to comply with the formalities renders the contract void. On the other hand, an illegal contract is one where a penalty is imposed thereby rendering the contract both void and illegal" (the Law of Contract in Uganda pages 99 – 100).
Because a penalty is imposed for non-compliance with the provisions of sections 2 and 3 of the Illiterates Protection Act, the order which was subsequently endorsed by the registrar was illegal and void.
In the above circumstances, order 36 rule 11 of the Civil Procedure Rules gives the court jurisdiction to set aside the decree and if necessary to stay or set aside execution. In this case execution was completed and the court will only set aside the decree and give leave to the defendant to appear to the summons and to defend the suit.
Because execution was completed and the property was sold, the provisions of section 49 of the Civil Procedure Act are applicable. The sale becomes absolute upon the payment of the full purchase price. Furthermore order 22 rules of 77, 78 and 79 of the Civil Procedure Rules entitle the purchaser to the property subject of course to the right of an aggrieved party to sue in an ordinary suit and prove entitlement to the property or the fraud of the purchaser as the case may be.
Order 36 rule 11 of the Civil Procedure Rules provides that if the court is satisfied that service of the summons was not effective or for any other good cause which shall be recorded, the court may set aside the decree and if necessary stay or set aside execution. The rule does not give the grounds for setting aside execution but use the words "if necessary". The rule is couched in extremely wide terms. Execution may be stayed or set aside if necessary. This rule however has to be read in conjunction with section 49 of the Civil Procedure Act. A Subsidiary legislation cannot be read in conflict with the Parent Act. Section 18 (4) of the Interpretation Act cap 3 laws of Uganda provides that and I quote:
"Any provision of the statutory instrument which is inconsistent with any provision of the Act under which the instrument was made shall be void to the extent of the inconsistency.
Section 49 of the Civil Procedure act deals with the purchaser's title and provides that:
"Subject to any law relating to the registration of titles to land, where immovable property is sold in execution of a decree, the sale shall become absolute on the payment of the full purchase price to the court, or to the officer appointed by the court to conduct the sale."
In this case the provisions of the Registration of Titles Act are inapplicable because the property is not registered property subject to the Act. It was clear from the advertisement for sale of the property that it was the Kibanja interest which was sold and the description of the property using the title deed description was for purposes of location of the property. There is no evidence on court record as to the registered proprietorship of the property. The question is whether the sale of the property can become absolute on the basis of section 49 of the Civil Procedure Act alone. The second deponent in support of the application Mrs. Susan Nanganda has additionally averred that the property is matrimonial property subject to the provisions of section 39 of the Land Act as amended. The question whether the property was matrimonial property and whether it was liable to attachment was never tried because miscellaneous application number 668 of 2012, being an application for stay of execution of the consent order in civil suit number 295 of 2012 and miscellaneous application number 667 of 2012 being an objection to attachment of the Kibanja interest on the ground that it is matrimonial property, were never fixed for hearing. For the questions to be tried, it would be necessary to set aside execution. However, execution cannot be set aside without the purchaser being a party to the proceedings and being heard on the question affecting his interests. The right of hearing is a fundamental right and the purchaser's interests shall not be affected without a hearing.
In the circumstances, the decree of the court the basis of the execution proceedings is set aside, and the applicant is given unconditional leave to appear and defend the suit. The applicant shall file a defence within 14 days from the date of this order. The applicant is further entitled to the costs of the application. If the applicant so wishes and believes that there are any grounds to impeach the sale of his house, he or his wife is not barred from filing an original suit challenging the sale of his houses.
Ruling delivered on the 4th of June 2013
Christopher Madrama Izama
Ruling delivered in the presence of:
Mukasa Lugalambi for the applicant
Applicant in court
Samuel Kiriaghe for the respondent
No representative of respondent in court
Charles Okuni: Court Clerk
Christopher Madrama Izama
4th June 2013