[2001] UGCA 40

### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

CORAM: HON. MR. ]USTICE C. M. KATO, J. A. HON. MR. ]USNCE ]. P, BERKO, J. A. HON. MR. ]USTICE A, TWINOMU]UNI, ]. A.

# CIWL APPEAL NO. 33 OF 2OOO.

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> > BAMU PARTNERS & AUCTIONEERS APPELLANT

### VERSUS

THE ATTORNEY GENERAL RESPONDENT

(Appeal from the Judgment/Decree of the High Court(Ntabgoba P. J.) dated 6112/99 in Civil Appeal No. 1347 of 1999).

## ²⁰ JUDGMENT OF TWINOMUJUNI, J. A.

This is an appeal against the judgment and orders of the High Court whereby the Principal Judge set aside an order of taxation of the appellants bill of costs made by Taxing Master of the High Court. The facts of the case were that in HCCS. No. 476 of 1999, the Attorney

General and the Uganda Commercial Bank, obtained judgment against

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Westmont Land (Asia) BHD for a sum of ihs.32,272,821,041/=. Qn 1st September 1999 the respondent made an application for a Warrant of Attachment and Sale of the Westmont shares in Uganda Commercial Bank LTD which are 49o/o of the holding of the Bank. Execution by ^a prohibitory order in accordance with order 19 rule 43 was granted to the respondent by the Deputy Registrar of the High Coutt. The prohibitory order was issued to the Attorney General on 7th September 1999. On 1Oth September 1999, the Deputy Registrar issued a Warrant of Attachment and Sale to the Court bailiff, the appellant, in respect of the same decree. What the parties did with the Court documents is contentious but on 27th September 1999 the appellant submitted to the Deputy Registrar a bill of costs claiming, among other items, Shs. 968,t84,623.23 as fees for attachment of Westmont's shares in Uganda Commercial Bank. At the hearing of the taxation of the bailiffs bill of costs, the respondent objected to the above item being awarded to the appellant on the ground that he did nothing to deserve the award. In other words, that he neither attached nor sold the shares because by the time he received the warrant, attachment had already been completed by the respondent. The Deputy Registrar ruled in favour of the appellant whereby the appellant appealed to the Principal Judge. The appellate judge held that neither the appellant nor the respondent had made an attachment of the shares as provided for by order 19 rule 43 of the Civil Procedure Rules. He therefore set aside the Deputy Registrart order of taxation, hence this appeal.

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The Memorandum of Appeal contains twelve grounds of appeal, these are:-

- 1 The learned Principal Judge erred in law and in fact when he enteftained, heard and determined an appeal that was illegal andlor a nullity on account of having been filed contrary to statute and/or law conferring the right to appeal and jurisdiction to hear and determine the appeal. - The learned Principal Judge erred in law and in fact in giving judgment allowing an appeal that had been filed contrary to statute/law and in respect of which the court had no jurisdiction on account of being time and/or statute barred. 2 I0 - 3. In the alternative and without prerudice to the above, the learned Principal Judge erred in law and fact when he came to findings that were not suppofted by the evidence on record. - 4 The learned Principal Judge erred in law and fact when he engaged in guesswork, conjecture and speculation not supported by evidence that the order had not been affixed on a conspicuous place in the court house which was not an issue before the Registrar or the Appellate Court.

- 5 The learned Principal Judge erred in law and fact when he made findings on a new issue that was not before court and whose determination required investigation by way of new facts and evidence which was neither adduced nor proved before the Registrar or the Principal Judge. - 6 Further the learned Principal Judge erred in law and fact when he made findings and decided the appeal on the ground that in absence of proof that the prohibitory order was affixed on ^a conspicuous part of the court house, then such attachment was incomplete, which ground was a matter requiring evidence in the trial proceedings but was neither pleaded nor an issue put before court for determination.

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- Fufther in the alternative, the learned Principal Judge erred in law and fact when he made findings and decided the appeal on grounds other than those that had been pleaded and were neither in issue or the subject of investigation nor in dispute before the Registrar or before the appellate court viz proving that the order had been affixed on the High Court conspicuous part; 7 - B The learned Principal Judge erred in law and fact when he failed to evaluate the evidence adduced and interpret the law applicable before reaching his decision.

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- 9 Fufther in the alternative, the learned principal Judge erred in law and fact when he misunderstood the process of execution by way of attachment of shares and in effect misconstrued and misinterpreted the relevant provision in the Civil Procedure Rules viz Order 19 Rules 8, 27, 43 and 64. - 10. Further the learned Principal Judge erred in law and fact when in reaching his decislon he failed to take into account and give effect to the admitted facts or facts not in dispute viz that there had been an attachment of the shares and instead made findings contrary to such admitted facts and evidence on record.

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- 11. Further in the alternative, the Principal Judge erred in law and fact when he made findings and decided that the Appellant had not effected any attachment, as there was no attachment at all. - t2. Further the learned Principal Judge erred in law and fact when he failed to make findings and decide the issue before Court viz who between the Appellant and Respondent had effected the attachment of shares. - Learned counsel for both parties submitted lengthy and rambunctius written submissions, but in my view, the submissions raise two main issues for consideration:-

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- 1) Whether the appeal which was enteftained by the learned Principal Judge was illegal/a nullity. - 2) Whether the learned Principal Judge erred in law or fact when he held that no attachment proceedings were accomplished in HCCS No. 476 of 1999?

#### I UE NO. ¹

l() 20 On the first issue, learned counsel for the appellant submitted that the learned Principal Judge erred when he enteftained Civil Appeal No. 7347 of 1999 which, in his view, was illegal and a nullity. The gist of this argument is that the rules of procedure required that such an appeal be filed within seven days from the date of the order or decree appealed from. He observed that the order of the Deputy Registrar which was being appealed from was made on 20th October 1999. The appeal against that order was filed on 29th October 1999. In his view the appeal was two days out of time and it was illegal to entertain it without leave to extend its filing first being obtained. Learned counsel for the appellant cited many cases where it was held that an appeal must be filed within a particular period and failure to comply was fatal as the court had no jurisdiction to enteftain the matter.

In reply Dr. Samson Sempasa, learned counsel who appeared for the respondent made two arguments:-

- (a) That the appeal was filed in time. - (b) That the appellant should have raised the matter in the High Couft before the Principal Judge and failure to raise it was fata l,

l0 With respect to learned counsel for the appellant, most of the cases cited deal with cases where a court proceeded to enteftain ^a matter where it had no jurisdiction as a matter of law or where the facts clearly showed that there was no jurisdiction, The issue as to whether an appeal has been filed within stipulated time is an issue of fact and not law. It must always be raised at the first opportunity to enable the Court to inquire into it and ascertain whether the matter is properly before the couft.

Section 80 of the Civil Procedure Act provides that an appeal against the order of a Registrar should be filed within seven days from the date of the order. Section 80(2) CPA provides:-

"In computing the period of limitation prescribed by this Section, the time taken by the court or the Registrar in making a copy of the decree or order appealed against and the proceedings upon which lt ls founded shallbe excluded."

Order 47 Rule 3 also provides:-

"Where the time for doing any act or taking any proceeding expires on a Sunday or other day on which the offices are closed and by reason thereof such an act or proceeding cannot be done or taken on that day, such act or proceeding shall, so far as regards the time of doing or taking the samq be held to be duly done or taken if done or taken of the day on which the offices shall next be open."

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These provisions clearly show that any time limited is subject to the provision of Section 80(2) of CPA and Order 47 rule 3 of Civil Procedure Rules. The appellant had the opportunity to raise this matter before the first appellate court. The appeal in that couft was filed only nine days from the date of the Deputy Registrar's order. If the matter had been raised, the respondent would have had the oppoftunity to show that he comes within the ambit of the exceptions under the rules of procedure cited above. If the matter is not raised at the flrst appellate coutt, it cannot be raised on a subsequent appeal. For that reason/ the first and 20 second grounds of appeal do not arise, they are misconceived and they must fail.

#### ISSUE NO. 2

This issue is whether the trial judge erred in holding that the appellant did not carry out the attachment of the shares of the judgment creditor.

s The only rules of procedure applicable to attachment of shares in ^a corporation are those to be found in Order 19 Rule 43(1) and (2) which reads as follows:-

"43(1) In case of:-

- (a) a share ln the capital of a corporation; - (b) Other movable property not in the possession of the judgment-debtor, except property deposited tn, or rn the custody of the court, the attachment shall be made bv a written order orohibitino:- - (i) in the case of the share, the person in whose name the share may be standing from transferring the same or receiving any devident thereon; - (i0 in case of the other movable property except as aforesaid, the person in possession of the same from giving it over to the iudgment debtor. - (2) ^Acopy of such order shall be affixed on some conspicuous paft of the Court house, and another copy shall be sent, in the case of the share, to the proper ofllce of the corporation, and in the case of the other movable property (except as aforesaid), to the person in possession of the same." (Emphasis mine)

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In rejecting the appellants claim that he had carried out the attachment of the shares the learned Principal Judge stated:-

> "Affachment under rule 43 can only be complete if the two steps provided under sub ru/e(2) thereof have been taken, namely, the affixing of the prohrbitory order on the Court's conspicuous part, and the seruice of the order on the officer of the UCBL. In this case the respondent claims to have served the order on the UCBL - Secretary but he has not proved that he affixed the order on the High Court conspicuous part. In absence of such affixing, the affachment rs deemed incomplete."

In my judgment, the above conclusion cannot be faulted and is in fact inescapable, Before the Deputy Registrar and the Principal Judge, the appellant's right to receive payment for work done in the attachment of the shares was challenged. It was his duty to prove that in fact he had carried out the duty for which payment was being sought. In order to do that he had to produce evidence to establish that he had complied with the mandatory provision of Order 19 Rule 43(1) & (2) of the Civil Procedure Rules. It was not the duty of the respondent to prove that Order 19 Rule 43(1) & (2) was not complied with.

In this case the respondent established that they had obtained ^a prohibition order and served it on UCB before the involvement of the

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appellant. This however fell shott of compliance with the full mandatory requirements of Order 19 Rule 43. It was now the duty of the appellant who claimed payment for doing the job to prove that fact. Before the Deputy Registrar and the learned Principal Judge, no effort was made by the appellant to establish that he had complied with the rules. His argument in this appeal was not that he had actually complied with the rules but that the respondent did not prove that he had not complied. In agreement with the learned Principal Judge, I would hold that the duty to prove compliance with the rules squarely feel on the appellant. He did not discharge that duty and the Principal Judge was right to hold that he was not entitled to payment on Item I of the Couft Bailiffs Bill of costs.

The result is that the appeal has no merit and I would dismissfil it with costs to the respondent.

Dated at Kampala this day of 2000.

7, // A l0 CE PEAL. --7

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#### THE REPUBLIC OF UGANDA

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

### CIVIL APPEAL NO. 33 OF 2OOO

#### BAMU PARTNERS AUCTIONEERS APPELLANT

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#### VERSUS

ATTORNEY GENERAL RESPONDENT

HON. MR. JUSTICE C. M. KATO, JA. HON. MR. JUSTICE J. P. BERKO, JA. HON. MR. JUSTICE A. TWINOMUJUNI, JA. CORAM:

#### JUDGMENT OF J. P. BERKO J. A.

I have had the advantage of reading, in draft, the judgment prepared by my learned brother Twinomujuni, JA. in which he sets the facts and discusses fully the question of law which arise in the appeal concerning issues of facts which were neither pleaded as a defence nor argued at the court below. Authorities on the point were discussed by this Court in Civil Appeal No. 4 of 1999 Christine Bitaraheho v Dr. Edward Kakonge. ln that case we cited with approval ^a statement of Lord Buckmaster in the House of Lords' judgment in North Staffordshire Railway Co. v Edge [1920] AC 254 at 270. The Law Lord put the matter thus:

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"Upon the question as to whether the appellants should be permitted to raise here a contention not raised in the court of

first instance I find myself in accord with the views just stated by Lord Atkinson. Such matter is not to be determined by mere consideration of the convenience of this House but by considering whethq it is possible to be assured that full justice can be done to the parties by permitting new points of controversy fo be discussed. lf there be f urther matters of fact that could possibly and properly influence the judgment to be formed, and one party has omitted to take steps fo place such matters before the court because the defined issues did not render it material, leave to raise a new issue dependent on such facts at a late stage ought to be refused, and this is a settled practice".

The issue with regard to the appeal before the learned Principal Judge being time-barred was never in contemplation of the parties at that court. lt was never pleaded as defence nor was it argued there. An appeal court has ^a discretion to allow such a point to be taken on appeal, but it will permit such a course when it is assured that full justice can be done to the partres. lt has not been shown that full justice can be done to the parties in this case if the new point is permitted to be argued at this stage.

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For the above reason and those given by Twinomujuni, l, too, would dismiss the appeal.

Dated at Kampala this day of 2000.

J. P. .i

Justice of Appeal.

# TIIE REPUBLIC OF T]GANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPEAL NO.33 OF 2OOO

## BAMU PARRTNERS AI.]CTIONEERS : : : : : : : : : : : : : : : : : : :APPELLANT VERSUS

ATTORNE GENERAL : : : : : : : : ]: : : : : : : : : : : : : : : : : : : : : : : : : : : :RESPONDENT

### CORAM: HON. MR. JLISTICE C. M. L{TO, JA. HON. MR. JUSTICE J. P. BERKO, JA. HON. MR. JUSTICE A. TWINOMUJUNI, JA.

### JTIDGMENT OF C. M. KATO. J. A.:

I have had the benefit of reading the ludgment of my brother Twinornquni, JA. in draft. I agree with his finding and proposed order. I would however, like to add that although the cottnsel fbr the appellant frarned nine alternative grounds of appeal, these grounds should be considered as irrelevant in view of the fact that the appellate .1udge correctly resolved that there was no attachment caried out by the appellant and that the appellant's counsel did not raise the issue of time lirnit before the appellate court.

As Berko JA. also agrees, this appeal cannot succeed. It is accordingly disrnissed with costs to the respondent.

Datcd nt Kampala this day of 2000.

fu-C. M. itato JUSTICE OF APPEAL