[1994] UGSC 49

IN THE SUPREME COURT OF UGANDA

AT MENGO

# (CORAM: MANYINDO, D. C. J., ODOKI, J. S. C., ODER, J. S. C.)

### CIVIL APPEAL NO. 18 OF 1993

## BETWEEN

<pre>..................... APPELLANTS</pre> LIFECARE PHARMACEUTICALS) YAHAYA LUKYAMUZI $1.$ $2.$

## A N D

<pre>............... RESPONDENT</pre> GODFREY ODDY BEIJUKA ..............

> (Appeal from the Ruling of the $\rm H/\rm C$ of Uganda at K'la. (Hon. Justice<br>Mpagi Bahigeine Mrs.) dated 14th March, 1993).

#### JUDGMENT OF THE COURT:

$-164$

This is an appeal against the Ruling and Orders by the High Court (Mpagi-Bahigeine, J.) in an application brought by the Respondent/Applicant. The application was made exepart, by Chamber Summons, under 37 rr 1, 2 and 9 of the Civil Procedure Rules and Section 101 of the Civil Procedure Act. It sought an Order against the Appellants who had been sued by the Respondent in High Court Civil Suit No. 823 of 1993, for a sum of Shs.9.6 million for goods delivered to them by the Respondent (a) to furnish security for the decretal sum, interest and costs that might be given against them in the pending Suit or (b) the attachment of the Appellant's stock-in-trade pending judgement that might be given against them.

The application was heard ex-parte on $30/12/92$ , during Court Vacation and without Notice to the Appellants. It was allowed in these terms:-

"This $\cdot \cdot \cdot$ /2

$1.37 R_{12}$

"This Court orders an interim injunction to issue against the Defendants/Respondents whether by thermselves jointly or severally their workers, their agants or their<br>representatives by whatever names called to furnish security for the decretal sum, interest<br>and costs that might be given against them in the pending suit. Failure of that the<br>Defendants' stock in trade be attached or the<br>1st Defendant be detained in a civil prison for a period not exceeding six months unless<br>in the meantime the Court directs his release, pending judgment that might be given against them after the hearing and final disposal of this suit".

It is noteworthy that the Respondent had not asked for the Order of detention of the first Appellant. On $4/2/93$ , the Respondent applied, by Notice of Motion under 037 rr 4 and 9 of the Civil Procedure Rules, for an Order setting aside the temporary injuction on the grounds that (a) it was issued under the wrong rules of procedure, (b) it was issued without notice to the Appellants, and (c) it was irregular as it purported to be an injunction, and Order of attachment and a requirement to furnish security all in one.

The same Judge heard the application on $1.4.93$ . She disallowed it for want of merit. Hence this appeal.

When the appeal came up for hearing Counsel for the Respondent conceded it and agreed that it should be allowed with costs to the appellants. There are good reasons why the appeal must succeed. First, the application was wrongly brought under Order 37. It should have beenbbrought under Order 36. Second, the Appellant's were entitled to Notice and to be heard if they so wished. The provision in Order 37 Rule 3 for dispensing with Notice was never invoked either by the Respondent or the Court. Third, there were the unchallenged averments by the first Appellant

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$\bullet$

in his affidavit sworn on $3/2/93$ , in support of their application, to the effect that their goods were attached when they were unaware of the existence of the suit against them. They were not served with summons to enter appearance.

Clearly the procedure adopted by the Court prejudiced the Appellants as they were denied the opportunity to be heard through and through. The learned Judge also erred in making the omibus Order that gave three alternative courses of action all in one. In our view the correct course would have been to issue an order restraining the Appellants from breaching the contract. If the Appellants defied that order then 037 $r$ 2(3) of the Civil procedure Act would have been rightly invoked and the arrest and detention of the first Appellant ordered.

In the result we allow the appeal, set aside the ruling and orders of Mpagi-Bahigeine, J. The Order of Temporary Injunction dated 30/12/92, by which the Appellants' goods were attached is set aside. The goods shall be released to the Appellants. The Appellants shall have the costs of this appeal.

$7th$ July, $\cdots$ $\cdots$ , 1994. Dated at Mengo this ........ day of ....

> S. T. MANYINDO, DEPUTY CHIEF JUSTICE.

B. J. ODOKI, JUSTICE OF THE SUPREME COURT.

A. H. O. ODER,<br>JUSTICE OF THE SUPREME COURT.

I CERTIFY THAT THIS IS THE TRUE COPY OF THE ORIGINAL Ruran gar J. MURANGIRA REGISTRAR OF THE SUPREME COURT.

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