THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
(EXECUTION AND BAILIFFS DIVISION)
MISCELLANEOUS CAUSE NO. 2318 OF 2016
(ARISING OUT OF EMA NO. 2214 OF 2016)
(ARISING OUT OF MISCELLENOUS CAUSE NO. 396 OF 2013)
HAJJI HUSSEIN ABUBAKAR ABDI …………..…………… APPLICANT
ODONG JUSTIN ROY ……………..…………..………….. RESPONDENT
BEFORE LADY JUSTICE FLAVIA SENOGA ANGLIN
By this application made under S.33 Judicature Act, S.82 C.P.A and 0.52 r 1 and 3 C.P.R, the Applicant sought the following orders:-
- The execution proceedings, court orders arising out of MA 267/2005, 369/2013 and 139/2015 be reviewed and set aside by this court.
- Court compels the Respondent to apportion the award of damages individually as was decided by court in MA 369/13.
- Costs of the application be borne by the Respondent.
The grounds for the application are that:-
- The order / ruling of court specifically awarded damages and costs to be borne severally and individually but the Respondent has preferred to execute against the Applicant only.
- That instead of executing the decree from which the whole total arises in MA 369/2016, they have separated all the three orders including those arising from the main suit and are executing them separately, an act which is dishonest, unlawful and only aims at tricking court that there are three suits whereas not.
- They preferred two modes of execution in the same matter, attachment and arrest, which is illegal, unlawful and contrary to judicial practice.
- That this being a matter arising out of enforcement of human rights, where the Respondent claims abuse of power, torture and inhuman treatment in detention, that such liability ought to have been severed from the Applicant and the award of damages ought to have been apportioned.
- That the Applicant exercised his right and reported a crime to police where the Respondent claims he was tortured or harassed, as is the finding of court therefore award of damages for such harassment cannot be blamed on the Applicant alone.
- The ruling is clear, but the Respondent is bent on having the Applicant suffer all the damages alone, whereas the court decided otherwise.
- The execution is unlawful, illegal or irregular, marred with gross impunity and violation of court procedure and or contempt of court.
- It is just and equitable that the application be granted.
The application is supported by the affidavit of the Applicant.
There is an affidavit in reply deponed by the Respondent where it is contended that the application is incompetent, frivolous, misconceived, a waste of court and Respondent’s time and devoid of any merit.
That the matter is res judicata.
The matter before court is for execution of court orders arising from MA 369, MA 139/15 and MA 267/2005 – Annextures “A”, “B” and “C”.
The Respondent is aware of MC 369/2013 but has no idea of MC 267/15 or MC 139/2015.
He confirms having sued the Applicant and two others vide MC 369/13 on 16.12.13, for enforcement of his judgmental rights to liberty, fair hearing, property and against torture, cruel, inhuman or degrading treatment and punishment but that he has no knowledge of MA 369/13.
That the affidavit in support of this application is a total falsehood.
Further that, there is nothing wrong or unlawful about making different applications for execution of orders from MC 369, MC 139/15 and MA 267/15.
That there is nothing irregular or unlawful or harsh or excessive about the mode of execution preferred in MC 369, MA 139/15 and MA 267/15.
That notice to show cause is intended to give a debtor an opportunity to settle the debt otherwise execution issues and requires the debtor to attend court on a fixed date.
That these are disguised objector proceedings and the Applicant has no locus standi to bring them. Also that the Applicant is only trying to non unjustly enrich himself.
The matters before court are for execution and the only natural course for the Respondent realize the fruits of his success.
The application for execution was based on different orders from separate and distinct proceedings before court from which orders were extracted.
There is no law forbidding a successful party from realizing the fruits of litigation by applying for execution.
The application to court is to seek a single mode of execution based on the distinct nature of the orders of court, which is in full compliance with the law.
The application for review made before this court was already sought, heard and declined by High Court Civil Division – Annexture “D”.
The Applicant is a consummate liar and his affidavit contains falsehoods and should be dismissed with costs.
The application was called for hearing on 13.03.17 in the presence of both Counsel and the parties.
Counsel for the Applicant submitted that the Applicant was applying for review under S.34 (1) CPA- which provides that “All questions arising between parties to a suit in which a decree was passed and relating to execution, discharge or satisfaction shall be determined by the court executing the decree and not by a separate suit”.
The Applicant Counsel submitted, prays for review of the execution proceedings which arise out of MC 267/15, 369/13 and 139/15. And that the damages were to be met by each Judgment Debtor individually as was decided by court in MC 369/13.
Counsel then went through the grounds of the application as already set out. He asserted that, it is the principle of court that execution be carried out with a human face.
The award of damages in such a matter, Counsel argued, has to be apportionated appropriately as court decided.
Further that, after securing the notice to show cause, the issue to be resolved is whether the Judgment Creditor is allowed sell and also arrest the Judgment Debtor. Relying on S.33 of the Judicature Act, Counsel contended that it is the judicial practice to allow only one mode of execution to satisfy the decree.
Referring to the judgment in issue, Counsel argued that liability was to be borne severally and individually. And that the common law principle applied in those cases is that a party can recover from only the Judgment Debtor. But that the principle is borne out of cases whose cause of action is founded on a joint obligation such as contract where joint liability is defined.
Even in that, Counsel pointed out, joint and several liability arises out of a cause of action where there were joint tort teasers – The case of Otto Tomili Ochamakel vs. Attorney General C.S 14/2010 was cited in support.
In the present case, the Judge did not find the three Judgment Debtors jointly or severally liable for the torture. He found them liable severally and individually therefore in execution; each party is apportioned liability and pays what is due.
And that the Applicant is ready to meet the debt to the extent of his portion. And one mode of execution should be preferred.
Even the property for attachment belongs to another party and not the Judgment Debtor.
It was prayed that the execution proceedings that were illegally done contrary to the law and judicial practice be reviewed with costs to the Applicant.
The application was vehemently opposed by Counsel for the Respondent.
He submitted that, the application raises the following issues:-
- Whether the Applicant has locus to file the objector.
- Whether court can invoke the various modes of execution.
- Whether the Respondent can execute against one or all the parties that is, debtors.
- Whether the application is properly before court.
Counsel stated that the application was premised on dangerous speculation as execution had taken place. Only a notice to show cause was issued and then the Applicant filed all these applications aimed at frustrating the realization of the fruits of judgment by the Respondent.
Also that, the Applicant purports to bring objector proceedings in the application, where he claims that the property belongs to his alleged brother. Yet, the Applicant has not shown court his authority to depone by way of authorization or power of attorney.
In the absence of such authority from his brother, Counsel stated, the entire application becomes incompetent for lack of locus. The case of Lena Nakalema Binaisa vs. Musinguzi MA 460/13 where Justice A. Bashaijja held an affidavit “defective for being sworn on behalf of another without authority and therefore incurably defective and cannot support application” was cited in support.
It was as pointed out that the present case is an all fours with that case. The Applicant swears on behalf of his brother without authority. On that point alone, it was argued, the application collapses for being incurably defective.
Commenting about the various modes of execution, Counsel submitted that, S.38 CPA is very instructive on that position. It enjoins the court with power to enforce execution. The methods of execution are stated.
And under 0.22 r 18 C.P.R, court is at liberty to order simultaneous executions. That is, very different modes of execution, from same decrees.
Further that, the argument that court cannot order attachment and arrest is not premised on any law or authority.
S.38 CPA gives court discretion to use all modes. There is only one exception which does not arise. That is, committal twice to civil prison in same decree.
Counsel referred to the case of Twino Amos vs. Tamusuza James Civil Revision 11/09. Where court reiterated the import of S.38 CPA.
It was also contended that, there is a misrepresentation on how the decree and three orders arose. One cause gave rise to costs. But the Applicant applied to file application for revision – paragraph 5 affidavit in reply.
To claim that it was wrong for Applicant to file separate bills is demanding too much from court.
Execution could only go ahead by extracting separate notices to show cause.
As to whether the Respondent can execute against one or all of the parties/ Judgment Debtors- it was the contention of Counsel for the Respondent that, to say that the case only related to violation of Article 128 Constitution is a misrepresentation. He urged court to refer to the issues that were in court. And added that, all Respondents were found liable- for violation of right to property and fair hearing.
For the various modes of execution – the case of Tomili Ochamakel (Supra) was cited for the definition of joint and several tort teasers liability. Defined joint and several liability from any or the joint tort teasers.
That therefore, the reasoning by Counsel for the Applicant should be disregarded. The Respondent is free to recover from whoever he feels. It is up to the Applicant to find the other Judgment Debtors to compensate him.
Concluding that the application is a total abuse of court process, it was prayed that it be dismissed with costs.
In rejoinder, Counsel for the Applicant referred court to S. 34 CPA for competence of the application.
S.82 CPA to emphasize that court has power to review such proceedings. That is review of the execution and not the judgment.
He pointed out that the decisions Counsel for the Respondent relied upon arise out of contract. The cause of action determines the finding of liability as Justice Nyanzi found.
And also that there is no need to have authority from the brother to show that the property being attached belongs to the brother. The Applicant only needs to raise the issue, Counsel argued. Therefore that, the authorities relied upon did not apply. Earlier prayers were then reiteratered.
- Whether the execution proceedings can be reviewed and set aside.
- Whether court can compel the Respondent to apportion the award of damages.
In determining this application, I will begin with the second issue.
Looking at the order made in Miscellenous Cause 369/2013, it appears to me that it is the Respondents right to liability, freedom from torture, right to property and right to a fair hearing that court declared were infringed severally and individually. Meaning that, each of the Respondents in that case was solely responsible for the violation of the Applicant’s (now Respondent) rights.
The Respondent (then Applicant) was awarded general damages for the violation, plus compensation for the loss of his coffee. 24% interest was given on the compensation from the date of filing the suit till payment in full.
Costs of the case were also awarded.
However, the order is silent on whether the awards were to be severally and individually paid. But in my view, common sense dictates that the awards be paid jointly and severally by the Respondents who were each found to be responsible for the violation of the Applicant (now Respondent)’s rights.
To interpret the order otherwise would mean that each of the parties would pay the Respondent these same amounts which could not have been the intention of the court.
Jointly and severally means that “the three Respondents were to share all responsibilities of payment and if any of them is unable to share in the responsibility, the others become responsible for that partners share”.
In this case, it is the complaint of the Applicant that resulted into the misfortunes suffered by the Respondent and for which general damages and compensation were awarded.
The Respondent in the present case is therefore free to enforce against the person of the Applicant, as it is apparent from the circumstances that it is easier to secure payment from the Applicant. And it is the unpleasant task of the Applicant to seek refund from the other Co- Respondents in MA 369/13. It is not for the Respondent to run around like a headless chicken seeking portions of the awards from each of the parties who were condemned to pay. If that were to be the case, it would add to the inconvenience and humiliation already suffered.
In those circumstances, court cannot compel the Respondent to apportion the award between the parties.
To require this court to apportion the award of damages would be tantamount to reviewing the orders of the Judge who made the ruling out of which the decree arises, which this court has no powers to do.
It is true S.82 CPA empowers court “to review orders of a decree and make such orders on the decree or order as it thinks fit”. But the review should be done by the court that passed the decree.
In the present case, the review sought is Res Judicata. The ruling out of which the decree arises was placed before the trial judge for review. However, the application was dismissed on the ground that there was no error or mistake apparent on the face of the record to warrant review of the same.
The next issue to determine is whether the execution proceedings can be reviewed or set aside.
These orders were sought by the Applicant on the ground that the Respondent has chosen to execute separately, the three orders arising from the same suit. And that two modes of execution that is, attachment and warrant of arrest have been sought.
But I am inclined to agree with Counsel for the Respondent that there is nothing illegal about executing the orders separately, although it would be convenient to execute them as one.
S.38 CPA sets out the powers of court to enforce execution. Under the section, execution may be ordered in different ways, which include among other things attachment and sale of any property and arrest and detention in prison of any person. There is nothing to indicate that either of the modes provided for cannot be combined.
S.38 (f) CPA is clear. – Execution may be carried out “in such manner as the nature of the relief granted may require”. There is therefore nothing wrong, illegal about the execution process as no violation of the court process or contempt of court has been committed.
While under 0.22 r 18, the court may in its discretion refuse execution at the same time against the person and property of the Judgment Debtor, the rule is not mandatory. It would depend on the circumstances of each case.
Although I agree with Counsel for the Respondent that a notice to show cause requires a debtor to attend court to agree either to pay the debt or give viable reasons as to why the debt should not be paid, there is nothing to indicate that the application before court is disguised objector proceedings. There is nothing wrong with the Applicant indicating to court that the property attached is not his. He does not need any authority from the alleged owner of the property to state so. The affidavit is therefore not defective. But that is not sufficient reason to release the property from attachment. The execution can instead be stayed to enable the alleged owner file objector proceedings seeking for the release of the property from attachment.
I wish to observe that stay of execution in this case was already granted vide MA 2233/2016 whereupon the Applicant was required to deposit Shs. 30,000,000/- in the court as security for due performance of the decree, to await the outcome of this current application.
The stay can be maintained and the said sum of Shs. 30,000,000/- released to the Respondent as part payment of the decretal sum.
The balance of Shs. 41,167,350/- together with the interest accrued from it at the rate of 24% can be paid to the Respondent in installments to be agreed upon by the parties and their Counsel. The accrued interest to be calculated before the installments are agreed upon.
The property attached to be preserved until the rest of the decretal sum is paid or until objector proceedings are filed and other orders made by court.
The warrant of arrest is hereby cancelled.
The application is partly allowed on those terms with half of the costs to the Respondent. Refer to S.33 of the Judicature Act.
Flavia Senoga Anglin