Court name
Supreme Court of Uganda
Judgment date
19 June 2002

Lawrence Muwanga v Stephen Kyeyune (Civil Appeal-2001/12) [2002] UGSC 5 (19 June 2002);

Cite this case
[2002] UGSC 5

REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA

AT MENGO

(CORAM: ODER, TSEKOOKO, KAROKORA,
MULENGA AND KENYEJHAMBA, JJSC.)

CIVIL APPEAL NO. 12 OF 2001

BETWEEN

LAWRENCE MUWANGA APPELLANT

AND

STEPHEN KYEYUNE (Legal Representative of Christine Kisamba,
deceased) RESPONDENT

[An appeal from the decision of the Court of Appeal at Kampala, (Okello,
Mpagi-Behigeine and Engwau, JJ.A.) Dated 31/08/2001, in Civil
Appeal No.20 of
2000.J

JUDGMENT OF TSEKOOKO. JSC. This is a second appeal. The appeal is
against the decision of the Court of Appeal which upheld the decision of
Katutsi, J, in the
High Court where the learned judge accepted objection
proceedings brought under 0.19 Rule 55 and he made an order to release from
attachment a house and land belonging to Christine Kisamba.

The background, to this appeal can be briefly stated. In 1997 the appellant,
Lawrence Muwanga, instituted a suit in the High Court
to recover a debt of a sum
of shs.16,300,000/= from Godfrey N. Kisamba, the husband of Christine Kisamba.
On 11th August 1997, a consent judgment was entered against Godfrey
N. Kisamba. I shall hereinafter refer to him as "the judgment-debtor".
On
17th January, 1998, Godfrey Kisamba, the judgment-debtor, died in
Mulago Hospital. However, before the suit was instituted against him,
he had on
17/8/1993 by deed of gift donated to his wife, Christine Kisamba, and his
children Billy Makanga, Namunugu Godfrey, Sebulime
Godfrey, Namirembe Christine
and Muyanja Gideon, his house situate at Mengo, Kisenyi and a Kibanja situate at
Bakuli, Kampala. After
his death, his widow Christine Kisamba and his brother
John Mbabali Makanga, on 22/4/1999, obtained letters of Administration from
the
High Court to administer the estate of the judgment-debtor.

On 12/8/1999, a Deputy Registrar of the High Court issued a notice addressed
to "Godfrey Kisamba" requiring him to appear in Court
on 30/8/99 to show cause
why execution should not issue. As noted already, the judgment debtor (Godfrey
Kisamba) had by then died.
Nevertheless on 3/9/1999 another Registrar of the
High Court issued a warrant of attachment under 0.19 Rule 51 of the CP Rules
ordering
for the attachment of the judgment-debtor's aforementioned house at
Mengo, Kisenyi, valued at shs.5m/=. As indicated already, the
house had been
donated to C. Kisamba and her children. The proposed sale of the house was
advertised in the Uganda Gazette of 8th October, 1999. In the
Gazette, John Kasule, a Court Bailiff, stated that after 30 days, the house
would be sold "unless the defendant
pays all money owed plus fees and
costs".

On 15/11/99, the said John Kasule filed a return of the Court warrant and
therein reported that the house had been sold on 10th November, 1999.
It seems that either before or soon after the said sale, Christine Kisamba,
received threats to evict her. So on
16th December, 1999, Christine
Kisamba, who incidentally had by now become a coadministrator of the estate
of the judgment-debtor,
instituted objection proceedings seeking for orders to,
inter alia, stop attachment and sale of the house and the Kibanja and also
sought orders that the sale of the house and Kibanja be nullified. On 18/2/2000,
the day of hearing the objection proceedings, the
appellant, as respondent to
the objection proceedings was present in Court but his lawyer was absent. His
lawyer requested Court
by letter for the hearing to be adjourned. The request
for adjournment was rejected by Katutsi, J, who thereafter heard the objection
proceedings on basis of the affidavits and he granted it because:-

"by the tune of attachment the objector held the property on her own
account that is to say she was in possession of the property
on her own
account".

The judge also held that the objector was protected by the provisions of
Order 19 Rule 55 of CP Rules. The learned judge ordered for
the release of the
property from attachment and sale. Unfortunately, although the learned judge had
been requested to nullify the
sale of the house, he did not nullify the sale
which as already noted had taken place on 10/11/1999. The judgment creditor, the
current
appellant, contested the ruling and so he appealed to the Court of
Appeal on the basis of eight grounds of appeal. The parties presented
written
arguments and only in respect of grounds 1 and 4. The rest of the grounds were
abandoned.

In the Court of Appeal, ground one complained that the learned trial judge
erred in law in entertaining a matter/suit where no Court
fees was paid. The
complaint in ground four was that the learned judge erred in law in releasing
the property that was no longer
under attachment and had been sold off. Engwau,
JA, gave the lead judgment with which the other members of the Court of Appeal
concurred.
On the first ground the learned Justice of Appeal held that as the
question of non-payment of Court fees had not been raised during
the hearing of
the proceedings, the trial judge could not be criticised for not ruling on it.
The learned Justice of Appeal further
held:

"that a complaint against non-payment of Court fees is a minor procedural
and technical objection which does not and should not affect
the adjudication of
substantive justice as envisaged in Article 126(2)(e) of the 1995 Constitution
of Uganda. The remedy for non-payment
of Court fees would have been the
invocation of Rule 6 of the Court Fees and Deposits Rules

(Cap.41) to order the defaulting party to pay the necessary fees to the
Court".

On ground four the learned Justice of Appeal upheld the trial judge to the
effect that at the time when the property was attached,
Christine Kisamba, the
objector, was in possession of the property on her own account but not on trust
for the judgment-debtor. He
also concluded that the issuance of the warrant of
attachment and sale of the property offended the clear provisions of Order 19
Rule 19(1)(b) which requires that before execution of a decree in case of a
deceased judgment- debtor, service of notice to show
cause should first be
served upon a legal representative of that judgment-debtor which was not done in
this case. The other members
of the Court of Appeal concurred. The appellant has
now appealed against those two holdings by the Court of Appeal. There are three
grounds of appeal.

The objector Christine Kisamba died before this appeal was filed. The appeal
before us is now opposed on behalf of the objector by
Stephen Kyeyune, her legal
representative.

It is noteworthy that the first ground of appeal is in fact a reproduction of
the first ground in the Court below namely that the
learned Justices of Appeal
erred in law in entertaining a matter where no Court fees were paid. In their
written submissions, Messrs
Lumweno & Co, Advocates, counsel for the
appellant, virtually repeated the arguments presented in the Court of Appeal.
Counsel argued that as no
court fees were paid in the High Court when the
respondent instituted the objection proceedings (Misc. Application 1611 of 1999)
the ensuing court proceedings were a nullity. For this proposition learned
counsel relied on Unta Exports Vs Customs (1970) EA.648, Makula
International Vs Cardinal Emmanuel Nsubuga (1982) HCB
II and
on Rule 6 of Court Fees, Fines and Deposits Rule (SI.41-2). Learned counsel
contended that because in the Court of Appeal neither
the respondent nor her
counsel gave cogent reasons why fees were not paid, the proviso to Rule 6 does
not apply so as to allow the
objector to pay the fees belatedly to validate the
proceedings. Mr. Peter Kusiima, counsel for the respondent, supported the
decisions
of the courts below. He argued that since the question of non-payment
of court fees was not raised before the trial judge, it was
raised in Court of
Appeal, as a new matter and an after thought, for which the courts below should
not be blamed. He opined that
because Christine Kisamba is now dead, it is
difficult to establish whether or not court fees were paid.

Counsel himself did not represent her in the High Court. Counsel surmised
that the objector could have even paid the fees and court
officials might have
omitted to make an endorsement on the case file. Therefore counsel submitted
that in these circumstances, the
proviso to Rule 6 is applicable. He urged that
since the Court of Appeal omitted to order, which it should have ordered, for
payment
of requisite court fees, this Court should order for payment of the
requisite fees.

With respect I am not persuaded by the arguments of counsel for the
appellant. I think that the arguments of counsel for the respondent are
sound. In my opinion the present case is distinguishable from that of UNTA
Exports Ltd. Vs. Customs
(1970) EA 648. It appears to me that the
principle in the decision of Yese Ruzambira Vs. Kimbowa Builders
& Construction Ltd. (1976) HCB 278 covers this matter
as does the proviso to Rule 6.

I have perused the High Court record filed in these proceedings. I
find no reference in the appellant's affidavit which was a reply to that of
the late Christine Kisamba, the objector, nor in any other
document, complaining
that no court fees had been paid in respect of the objection proceedings. The
notice of motion instituting
the objection proceedings was filed in the High
Court by a different advocate, not the present one. The objector, Christine
Kisamba,
is herself dead and her legal representative has been substituted to
enable the appeal to be prosecuted. There is no evidence to
suggest that the
legal representative knew or had any knowledge of how the notice of motion was
filed in the High Court. It is apparent
that Court officials who should know
whether or not requisite court fees were paid have not been taken to task. Even
if those officials
were taken to task, it may turn out that they were to blame
for failure to make appropriate endorsement on file indicating whether
court
fees were paid. It is difficult to imagine that Court officials in the High
Court could have received the Court papers, opened
the file and assigned a
number to it (the notice of motion) without ensuring that Court fees were paid
first before the papers could
be accepted and filed.

Be that as it may, Justice Engwau relied on the decision of Manyindo J. as he
then was, in Yese Ruzambira Vs. Kimbowa Builders and Construction Ltd.
(1976) HCB 278 in which the learned Judge held that:

"Non payment of Court fees could not affect a Judgment entered by
consent
and that the remedy for non-payment of fees was to rely on rule 6 of
the Court Fees, Fines and Deposits Rules (Cap 41) to order the
defaulting party
to pay the necessary fees to the Court".

I have already reproduced another portion of the passage in which the learned
Justice of Appeal alluded to Art. 126(2)(e) of the 1995
Constitution and to Rule
6 of the Court Fees Rules.

The provisions of Rule 6 which the appellant's (and indeed respondent's)
counsel relied on reads as follows:-
"No document in respect whereof a fee
is payable shall be used in any legal proceeding, unless it shall have been
initialled as aforesaid;
or unless the Court shall be otherwise satisfied that
the proper fees in respect thereof have been paid:

Provided that if any such document is through mistake or inadvertence
received, filed or used in any Court without the proper fees in respect
thereof having been paid, the

Court may, if it thinks fit, order that such fees
as it may direct be paid on such document, and upon such fees being paid the
document and every proceeding relative
thereto, shall be as valid as if the
proper fees had been paid the first instance".

The proviso to Rule 6 gives discretionary power to court to make orders for a
defaulting party to pay the proper fees. Such an order
is done in the interest
of justice and must be done judiciously. All circumstances of any particular
case must be weighed. I cannot
see a better situation than the facts of this
case where the proviso to Rule 6 can be applied justifiably. In the result I
think
that ground one of the appeal must fail.

Ground 2 and 3 can be conveniently discussed together. The complaint in
ground 2 is that the Justices of Appeal erred in law in releasing
the property
that was no longer under attachment and which had been disposed of. In ground 3
the appellant complains that the Justices
of Appeal erred in law by entertaining
an application for objection proceedings where the property, the subject
matter of the
said proceedings, had already been disposed of. These two grounds
are in fact ground four of appeal in the Court of Appeal which
stated that the
learned trial judge had erred in law in releasing the property that was no
longer under attachment and had been sold
off. Basically the written arguments
presented by the parties in the Court of Appeal in respect of ground four there
have been
reproduceed by the two parties in respect of the present grounds 2 and
3 in this appeal. Likewise, the law and cases cited and relied
on in the Court
of Appeal are virtually the same cases and law relied on by the parties in their
written arguments which are before
us. Therefore the question that needs to be
answered is whether the conclusions reached by the Court of Appeal were
erroneous and
if so whether they should be overturned.

The facts have already been set out. The findings of the two courts below are
that on 17/8/1993 the judgment-debtor by deed donated
to his wife and the
children his house at Mengo Kisenyi and a Kibanja at Bakuli. That was long
before the judgment-debtor became
a debtor to the appellant and before the suit
germane to these proceedings was filed in 1997. By the time consent judgment
against
the judgment-debtor was entered against the judgment-debtor on
11/8/1997, the judgment-debtor was dead and the suit property had
long vested in
the widow and the children. In law by the time the order of attachment was
issued on 3/9/1999 and the property was
subsequently sold on 10/11/1999, the
property had long vested in the widow and the children who, indeed, were in
physical occupation
of the said property. The deed itself vested ownership of
property in the widow and children on 17/8/93. The vesting was not conditional
but immediate.

It appears to me the property for all intents and purposes belonged to the
widow and her children before the death of the judgment-debtor.
The property
therefore did not form part of the estate of the deceased and therefore was
never liable to execution in satisfaction
of the judgment-debt. I agree with the
conclusions of the Court of Appeal that even if it were assumed that execution
was levied
against the widow as a coadministrator of the estate of the deceased,
by virtue of 0.19 Rule 19(1)(b) of CP Rules,

" a notice to show cause why the house and Kibanja should not be sold before
the purported execution and sale should have been issued
and served on the
administrators of the estate (Christine Kisamba and John Mbabali Makanga) as the
legal representatives".



Rule 19(l)(b) is worded this way:-

19(1) "Where an application is made -

(b) against
the legal representative of a party to the decree, the courts executing the
decree shall issue a notice to the person
against whom execution is applied for
requiring him

to show cause, on a date to be fixed, why the decree should not be
executed against him".

The rest of the provisions of the rule do not apply to the facts of this
matter.

It is true that in paragraph 5 of the petition, in their joint petition for
letters of administration, Christine Kisamba (the objector)
and her joint
petitioner, John Mbabali Makanga, stated that the deceased left a residential
house at Mengo Kisenyi and a plot of
land at Bakuli, Kampala. In the affidavit
opposing the objection proceedings in the High Court, the present appellant
relied on the
contents of that para 5 of the petition to assert that the house
and plot belonged to the judgment-debtor and he further asserted
that the deed
of gift dated 17/8/ 1993 was concocted by the widow, the objector. Both the
trial judge and the Court of Appeal did
not accept that assertion. I find no
sound basis for disagreeing. There is no evidence to support the appellant's
claim that the
deed of the gift is a concoction or a forgery. In her affidavit,
the objector was positive that the house was given by her husband
by the deed
dated 17/8/1993. The decision of the trial judge depended on his judicial
appreciation of the contents of the affidavits
of the objector and that of the
appellant, as a respondent then. The judge preferred to rely on the affidavit of
the objector in
preference to that of the appellant. In a way, the Court of
Appeal upheld the preference of the trial judge. We have not been shown
which
errors either the trial judge or the Court of Appeal committed in the
preferences.

The appellant's counsel relied on Intraship (U) Ltd. Vs. G. M.
Combine (U) Ltd. and F. Mungereza HCCS
No. 14/1999 (1994) III KALR
22, for the view that once an auctioneer has sold off all or most of the
property attached in execution,
no useful purpose would be served by making a
release order or stopping execution proceedings. In that case objection
proceedings
were instituted when most of the property had been sold, and, like
in this case, the auctioneer had made a return of the sale and
filed the return
on the Court file. Kireju, J. declined to issue a release order. On the other,
hand the Courts below relied on the
decision of the High Court of Kenya in
Jandu Vs. Kirpar & Another (1975) EA 225 for the
contrary view. Indeed, the respondent's counsel distinguished the
Intraship Case (supra) from the present case in that in the former
case the property sold was moveable property, and I find that that distinction
is quite relevant to this matter, considering that the property in these
proceedings is still intact and is occupied by the family
of the deceased
objector. I agree with the opinion of the editors of Chitaley & Rao's
code of Civil Procedure that a judicial sale, unlike a private one, is
not complete immediately it takes place. It is liable to be
set aside on
appropriate proceedings. If no such proceedings are taken or if taken and are
not successful, the sale will then be
made absolute.

I do not agree with the contention of counsel for the appellant that
upholding the decisions of the two lower Courts will lead to
a multiplicity of
suits. Nor do I accept his other contention that the objection proceedings were
designedly delayed and therefore,
under 0.19 Rule 55, the High Court should have
declined to investigate the objection. Attachment was advertised in
Uganda
Government Gazette on 8/10/1999. It h?rdly requires imagination to
appreciate that the widow was most unlikely to have seen
the advertisement in
the gazette. Whatever the case, according to the court record, the sale took
place on 10/11/99 and apparently
without the widow having been served with
notice of intention to sell. The widow only became aware of the purported sale
when Court
bailiffs threatened to evict her from the suit property. Clearly that
was after the purported sale. She then lodged objections on
23/12/99 having
initiated the same by swearing her affidavit on 16/12/1999. This was barely a
month after the purported sale. This
cannot be described as a designed delay
especially when there is no evidence that she was aware of the date of
attachment and of
even the date of the subsequent sale. In all these
circumstances, I find that both grounds 2 and 3 are not sound and both ought to
fail.

For the foregoing reasons, I would dismiss this appeal with costs to the
respondent in this court and below.


JUDGMENT OF KAROKORA. JSC.

I read in draft the judgment prepared by Tsekooko, JSC. I concur that the
appeal ought to be dismissed with costs here and below.
I also agree that if
court fees were not paid by the objector, the respondent should pay it.

JUDGMENT OF ODER: - JSC

I have had the advantage of reading in draft the judgment of
Tsekooko, J.S.C. I agree with him that the appeal
should be
dismissed and with the orders proposed by him. As Karokora, Mulenga and
Kanyeihamba, JJ.S.C. also agree, the orders shall
be as proposed by Tsekooko,
J.S.C.

JUDGMENT OF KANYEIHAMBA, J.S.C.

I have read in draft, the judgment of my learned brother, Tsekooko. J.S.C,
and I agree with him that this Appeal should

JUDGMENT OF MULENGA, JSC

I had benefit of reading in draft the judgment prepared by my learned brother
Tsekooko JSC. I agree that the appeal ought to be dismissed
with costs. I have
nothing else to add.

Delivered at Mengo this 19th Day of June
2002.