[2024] UGHCCD 164

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA [CIVIL DIVISION] MISCELLANEOUS APPEAL NO. 0027 OF 2023 (ARISING OUT OF EMA NO. 42 OF 2023) (ARISING OUT OF CIVIL APPEAL NO. 85 OF 2005) (ALL ARISING OUT OF HCCS NO. 943 OF 1999)**

### **JAMES MUFUMBIRO ::::::::::::::::::::::::::::::::::::::: APPELLANT/ DECREE HOLDER**

### **VERSUS**

**UNILEVER (U) LTD ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

#### **BEFORE: HON. JUSTICE MUSA SSEKAANA**

#### **RULING**

The appellant brought this suit under section 33 of the Judicature Act, section 98 of the Civil Procedure Act, Order 50, Rule 8 and Order 52 Rule 1 and 3 of the Civil Procedure Rules seeking for orders that;

- *a) The ruling and order of the learned Acting Registrar dismissing Execution Application No. 42 of 2023 be reversed and set aside.* - *b) Execution doth issue in respect of the decree in Civil Appeal No. 85 of 2005 as modified by the order in High Court Civil Suit No. 943 of 1999 dated the 22nd day of November, 2012 and the decree of the Court of Appeal in Civil Appeal No. 168 of 2012 dated the 29th day of July, 2022 respectively.* - *c) Costs of this application be provided for.*

The appellant filed Execution Miscellaneous Application No. 42 of 2023 to execute the decree arising out of Court of Appeal Civil Appeal No. 85 of 2005 and High Court No. 943 of 1999 wherein he is the judgement creditor. The Learned Registrar found in his ruling that the awards of the decree dated 3/04/2009 became stale and therefore the judgement debtor has no liability under the said decree and accordingly dismissed EMA No. 42 of 2023. The appellant being dissatisfied with the ruling and orders of the learned Acting Registrar filed this appeal.

The appellant's appeal was supported by grounds stated in the affidavit of William Mukalazi Mubiru; counsel for the appellant which briefly states that;

- a) The learned Acting Registrar erred in law and in fact in find that; - i) The part decree to be executed is for paragraphs 2 and 4 of the decree of 03/04/2009 which were finally considered and were not subject to appeal. - ii) The period of realizing the benefits of the decree for the considered awards expired on 02/04/2021 and - iii) The awards of the decree dated 03/ 04/2009 became stale and therefore the judgement debtor has no liability under the said decree. - iv) It is in the interest of justice that the orders sought be granted.

The respondent filed an affidavit in reply to the said appeal deponed by Specioza Tayebwa, its counsel opposing the appeal wherein she stated that it is a mandatory requirement that a decree should be enforced within 12 years from the date of issue unless it can be shown that the judgement debtor forcefully or fraudulently prevented the execution.

She further stated that there is no complaint before the court that the respondent prevented the execution of the decree of the Court of Appeal in Civil Appeal No. 85 of 2005; James Mufumbiro vs Unilever Uganda Limited.

The respondent stated that it's not true that the orders in Civil Suit No. 943 of 1999 dated 19th November, 2012 Civil Appeal No. 168 of 2012 modified the terms of the decree in Court of Appeal Civil Appeal No. 085 of 2005. She stated that the decree in Civil Appeal No. 168 of 2012 makes no reference to the decree in Civil Appeal No. 085 of 2005 and the said decrees are separate from each other since in the latter, the Court of Appeal made a final determination of the appellant's rights.

It was stated that the Court of Appeal was not in position to determine the appellant's claim for pension and referred the appellant's claim for pension to the High Court for determination and such order had nothing to do with the final monetary awards by the Court of Appeal. The respondent therefore stated that the time for the recovery of the said final monetary awards in the Court of Appeal

decree in Civil Appeal No. 085 of 2005 started to run on 3rd April, 2009 when the said decree was issued and the appellant became entitled to enforce the said decree to recover the awards thereunder.

The appellant was represented by *Mr. Karoro Franscis* while the Respondent was represented by *Tayebwa Specioza* holding brief for *John Fisher Kanyemibwa*.

The appellant proposed the following issues for determination by this court.

# *1. Whether the awards of the decree dated 03/ 04/2009 became stale and the judgement debtor has no liability?*

### *2. What remedies are available to the parties?*

The parties were ordered to file written submissions which were accordingly filed and these shall be relied upon together with the pleadings in the determination of this case.

### *Determination*

# **Whether the awards of the decree dated 03/ 04/2009 became stale and the judgement debtor has no liability?**

Counsel for the appellant submitted that the learned Acting Registrar erred in both law and fact when he reasoned that the awards of the decree dated 03/04/2009 became stale and that the Court of Appeal conclusively determined the rights of the parties in paragraphs 2-4 leaving only the order on pension under paragraph 3 with no finality and thereby referred back to High Court.

Counsel submitted that the decree could not be executed as it was not final and there was a pending appeal. He stated that the Learned Registrar's finding was erroneous in as far as it presupposes that partial execution of the decree was possible whereas not. He also stated that it ignores the fact that the decree was the subject of further orders and appeal.

Counsel submitted that the decree was not partially executable in as far as orders 2 and 4 ahead of final determination on paragraph 3. He stated that this would be erroneous because only a final decree is executable. He relied on section 2 (c) of the Civil Procedure Act to define a decree as the formal expression of an adjudication which, so far as regards the court expression it, conclusively determines the right of the parties with regard to all or any of the matters in controversy. He stated that orders of the court will amount to a decree when they finally determine the parties' rights as per Denis Bireje vs Attorney General, Court of Appeal Civil Application No. 31 of 2005.

Counsel further relied on the persuasive Indian case of *Narayan Chandra vs Pratirodh Sahin High Court of Calcutta AIR 1991 Cal 53* that determination should be final and conclusive regarding the court which passes it. The test for finality of a decree is that it disposes of the suit completely, so far as the court passing it is concerned and settles all the issues and controversies between the parties to the suit. Thus, a decree is considered final when there is no appeal filed against the decree within the prescribed time, the disputed matter therein has been decided by the highest court and when it completely disposes off the suit.

Counsel further submitted that no appeal was filed from the decree in CACA No. 168 of 2012 within the prescribed time period following the notice of appeal. He further stated that the matter was decided by the court of appeal, the appeal from CACA NO. 168 of 2012 to the Supreme Court having been abandoned by the respondent and this signified the finality of the matter. He stated that the Learned Registrar correctly observed that the order of pension in paragraph 3 of the decree had no finality as it was referred back to the High Court and was subject of the order dated 19/11/2012 and appeal in CACA No. 168 of 2012; which meant that the decree in CACA No. 85 of 2005 was not final.

He submitted that the decree dated 03/04/2009 only became final upon the issuance of the orders in the decree in CACA No. 168 of 2012 which finally determined the appellant's pension rights. He noted that the Learned Registrar disregarded the fact that the final determination of CACA No. 168/2012 was only on the 11th June, 2019 with the decree therein being issued on the 29th July, 2019 which ought to be the logical conclusion and that the orders issued in HCCS No. 943 of 1999 on 19th November, 2012 were replaced. Counsel therefore submitted that the issue of the period for realizing the benefits of the awards therein becoming stale does not arise.

Counsel also relied on the persuasive Kenyan case of *Transmara Sugar Company vs Charles O. Mbaka [2021] eKLR* on part execution where the judge held that the only known procedure for partial execution of decrees is provided for under section 94 of the Civil Procedure Act but it is in relation to execution of part decree issues with leave of the High Court only. He noted that section 94 is in pari material with section 95 of our Civil Procedure Act but is inapplicable to the facts before court. He therefore submitted that there was no way the appellant could have partially executed the decree dated 3/04/2009 contrary to the findings of the Learned Registrar.

Counsel also submitted that there was a pending appeal which fact the Registrar was cognizant of. He relied on Transmara Sugar Company (supra) where the court held that there is no justifiable reason why the respondent proceeded with the execution of the partial decree. That as stated under paragraphs 9-11 of the affidavit, it is unconverted that the decree was subject to further orders in HCCS No. 943 of 1999 and appeal in CACA No. 168 of 2012. Counsel also stated that the respondent filed a notice of appeal against the orders therein on 18th June, 2019 only to later abandon it.

Counsel therefore argued that at all material times, there was an appeal pending in the matter and hence no justifiable reason for the appellant to proceed with partial execution of the decree therein. That on that basis, the orders in paragraph 2 and 4 of the decree in CACA No. 85 of 2005 were not executable on their own before the final determination of the appellant's rights in CACA No. 168/ 2012.

Counsel further submitted that the period of realizing the awards of the decree never expired on 2/04/2021 after the expiration of 12 years as provided for under section 35 (1) of the Civil Procedure Act as per the Registrar's finding in respect of paragraphs 2 and 4 of the decree. Counsel noted that the decree in CACA No. 85 of 2005 could not have become executable before the final and conclusive determination of all the rights of the parties. as such, the period of realizing the benefits of the awards therein cannot have expired on 2/4/2021 as it did not start running on 3/04/2009 contrary to the findings of the learned Registrar.

Counsel further submitted that the Registrar erroneously relied on section 35 (1) of the Civil Procedure Act to dismiss the appellant's application for execution. counsel stated that the provision presupposes the existence of an earlier application for execution in the matter, which bars a fresh application from being presented after the expiration of twelve years from the date of the decree sought to be executed and further relied on the case of Green Pastures Limited vs The Cooperative Bank Ltd (in liquidation) High Court Miscellaneous Application No. 172 of 2015 where it was held that the section caters for a situation where an application to execute the decree has been made.

He therefore noted that no application for execution of the decree in CACA No. 85 of 2005 had ever been made prior to EMA No. 042 of 2023 and therefore EMA No. 42 of 2023 could not be said to be a fresh application within the meaning of section 35 (1) of the Civil Procedure Act.

Counsel stated that the awards of the decree did not therefore become stale nor was the judgement debtor's liability thereunder extinguished. He stated that upon conclusion of CACA No. 168 of 2012 on 11th June, 2019, any computation of the time period within which to execute the decree in CACA No. 85 of 2005 commenced thenceforth.

He further submitted that the time bar stipulated in Section 35 (1) of the Civil Procedure Act applies where there is a lapse of twelve years between a previous application for execution and a fresh application being presented thereafter.

Counsel therefore submitted that it cannot be argued that the judgement debtor has no liability under the said decree since execution thereof is not complete. He therefore prayed that this court finds that the Learned Registrar erred in law and fact in his ruling dated 11th September, 2023 and grant the orders sought herein.

Counsel for the respondent raised a preliminary point of law that the appeal is incompetent and improperly before this court in the absence of an extracted order in EMA No. 142 of 2023 against which the appeal is legally mandated. He relied on Order 50, Rule 8 of the CPR and section 79 (1) (b) and 2 (o) of the Civil Procedure Act. Counsel stated that the affidavit in support of the appeal does not disclose any evidence of any Registrar's order against which the appeal lies nor has a search on the court file revealed the extraction of such an order. he therefore submitted that Order 50 Rule, of the Civil Procedure Rules only confer jurisdiction on this court to entertain an appeal from the Registrar's orders and in the absence of such an order, he prayed that this finds this appeal incompetent and strike out the same with costs.

The respondent's counsel further submitted that the Learned Registrar did not commit any error of law or fact in dismissing EMA No. 42 of 2023. He submitted that the under paragraph 3 of the decree in Civil Appeal No. 85 of 2005, the court directed the trial judge to compute the appellant's pension. Upon the hearing the parties, the learned trial judge awarded the appellant Ugx. 4, 739,646/= per the decree dated 19th November, 2012. The appellant being dissatisfied with the High Court decree on pension appealed to the Court of Appeal vide Civil Appeal No. 168 of 2012. On 11th June, 2019, the Court of Appeal found in favour of the appellant on the computation of the pension and accordingly awarded him Ugx. 20,000,000/= as damages in lieu of the pension entitlement.

Counsel submitted that on the 5th June, 2023, which was 14 years and 2 months from 03/04/2009 when the Court of Appeal issued the decree in Civil Appeal No. 85 of 2005, the appellant filed EMA No. 42 of 2023 seeking to execute the said decree against the respondent. After the expiration of 12 years from the date of the issue of the said decree, the Appellant could no longer enforce the said decree against the respondent under section 35 (1) of the Civil Procedure Act.

Counsel submitted that by 5th June, 2023 when the appellant filed EMA No. 42 of 2023 to execute the decree of Court of Appeal decree in Civil Appeal No. 85 of 2005 dated 03/04/2009, the 12 years within which to execute the said decree had already expired. The said application for execution was fresh. The appellant did not adduce any evidence of prior attempts to execute the said decree nor did the appeal adduce any evidence to show that the respondent had in any way prevented the execution of the said decree for the appellant to be within the exceptions under section 35 (1) of the Act.

The respondent submitted that the question which arises is whether the Court of Appeal in Civil Appeal No. 85 of 2005 on the pension dispute resulted in a final decree or the said decree was a preliminary decree as contended for the appellant. Counsel relied on section 2 (c) of the Civil Procedure Act which defines a decree and submitted that Civil Appeal No. 85 of 2005 was final because the Court of Appeal in its judgement conclusively pronounced itself on the entire dispute placed before it by the appellant.

Counsel submitted that the court of appeal conclusively determined the appellant's rights to monetary awards under paragraphs 2 and 4 of the said decree and also conclusively pronounced itself on the appellant's rights to pension claim which the learned trial judge had not pronounced himself on. He submitted that the court of appeal decision was final and resulted into a decree the moment it upheld the appellant's complaint on pension.

Counsel submitted that court of appeal directed the trial judge to compute the appellant's pension which was attended to and a separate decree extracted. The appellant appealed the said decree vide Civil Appeal No. 168 of 2012. Counsel further submitted that the case of *Peter Jogo Tabu vs Registered Trustees of Church of the Province of Uganda Civil Appeal No. 0016 of 2017* relied upon by the appellant that the decree in Civil Appeal No. 85 of 2005 was preliminary is distinguishable and inapplicable in the circumstances.

Counsel further submitted that the case of Transmara Sugar Company (supra) cited by the appellant dealt with execution of a bill of costs in existence of an order for stay of execution of the decree pending the appeal. He noted that in the instant case, the decree in Civil Appeal No. 85 of 2009 was a final decree and not a partial decree as the case in Transmara Sugar Company case (supra).

He therefore prayed that this court finds that the last date for filing the application for execution of the decree in Civil Appeal No. 85 of 2005 dated 3rd April, 2009 was on or about 3rd April, 2021 when 12 years from the date of the said decree expired. In terms of section 35 (1) of the CPA, the execution of the said decree became time barred. He therefore prayed that the appeal is dismissed with costs to the respondent.

## *Analysis*

Judgments take effect immediately they are delivered. Every court has inherent power to proceed to enforce judgments at once. The enforcement can only be interrupted by a stay of execution, provided there is an appeal. Where there is voluntary compliance, the question of execution becomes unnecessary.

The judgment of court should be complied with or without demand and it becomes operative from the moment it is delivered unless the court otherwise orders. However, if there is no immediate compliance, execution can commence immediately.

According to **Section 3 (3) of the Limitation Act and section 35 (1) of The Civil Procedure Act**, execution of a decree is barred only after the expiration of twelve years from the date on which the judgment became enforceable, except where the judgment debtor has, by fraud or force, prevented the execution of the decree at sometime within twelve years immediately before the date of the application.

## *Section 3 (3) of the Limitation Act* provides as follows;

*An action shall not be brought upon any judgment after the expiration of twelve years from the date on which the judgment became enforceable, and no arrears of interest in respect of any judgment debt shall be recovered after the expiration of six years from the date on which the interest became due.*

## *Section 35 of the Civil Procedure Act* provides as follows;

- *1) Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the decree shall be made upon any fresh application presented after the expiration of twelve years from* - *a) the date of the decree sought to be executed; or* - *b) where the decree or any subsequent order directs any payment of money, or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making the payment or delivery in respect of which the appellant seeks to execute the decree.* - *2) Nothing in this section shall be deemed* - *a) to preclude the court from ordering the execution of a decree upon an application presented after the expiration of the term of twelve years where the judgment debtor has, by fraud or force, prevented the execution of the decree at some time within twelve years immediately before the date of the application; or* - *b) to limit or otherwise affect the operation of any law of limitation for the time being in force in Uganda*

It is settled law that unless the particular statute states so expressly, the court has no residual power to extend time set by an Act of Parliament. It is further the position of the law that a limitation statute is strict in nature and inflexible and is not concerned with the merits of the case. Non-compliance with the limitation period renders the suit a nullity. The Supreme Court in *Madhvani International SA v AG; SCCA No. 23 of 2010* cited with approval the case of Hilton v Sutton Steam Laundry [1956]1 KB 73 where Lord Greene M. R at p.81 stated that;

*"But the statute of limitation is not concerned with merits, once the axe falls, it falls, and a defendant who is fortunate enough to have acquired the benefit of the statute of limitation is entitled, of course, to insist on his strict rights''.*

With these principles in mind, it is important to dissect the facts of this case.

The appellant extracted the decree given in his favour in Civil Suit No. 943 of 1999 where the Court ordered as follows;

- a) Judgement be and is hereby entered in favour of the plaintiff - b) The Defendant shall pay the plaintiff a total of Ugsh. 1,144,333/= in the following terms; - i) Special damages of Ugsh. 566,260/= as outstanding half payment of net salary for the period between date of suspension 29/10/1999 and date of dismissal. - ii) Ugsh. 352,053 as a month's payment in lieu of notice - iii) Ugsh. 176,026/= as housing allowance - iv) Ugsh. 50,000/= as transport allowance - v) Ugsh. 50,000/= as lunch allowance - c) That the total figures in b (i-v) is subject to arithmetical error correction under s.99 of the Civil Procedure Act. - d) The Defendant shall pay interest on b (i-v) above at the rate of 12% from the date of judgement until payment in full.

Being dissatisfied with the said the said orders, the appellant appealed against the judgement and decree before the Court of Appeal vide Civil Appeal No. 85 of 2005 and the Court heard and determined the appeal and made the following orders;

- 1. The appeal is allowed and judgement is entered for the appellant in the terms below; - 2. The respondent shall pay to the appellant the following; - a) Ugx. 1,326,556/= as the total sum of the items listed under (1-iv) below for the period the appellant was on suspension from the employment of the respondent. - i) Ugx. 704, 104/= as half salary - ii) Ugx, 352,052/= as half housing allowance - iii) Ugx. 70,400/= as half lunch allowance - iv) Ugx. 200,000/= as half transport allowance. - b) Ugx. 77,470/= that was deducted from the appellant during the period he was on suspension. - c) Ugx. 482,041/= as one month's pay in lieu of notice of termination of employment - d) Ugx. 10,000,000/= as general damages. - 3. It was incumbent on the respondent to pay the pension to the appellant. The learned trial judge is directed to compute the appellant's pension. The respondent is in a better position to give accountability for said pension as the same was paid to the respondent company. The trial judge should consider the 27 years during which the appellant was in the employment of respondent and its predecessors. - 4. The appellant is entitled to an award of interest to be paid by the respondent in the following manner; - a) Interest on the unpaid salary at the rate of 12% per annum from the date of the suit in August 1999, to the date of the decree. - b) interest on the aggregate awards inclusive of general damages at 12% per annum from the date of the decree to date of payment. - 5. AND IT IS ORDERED THAT; the respondent shall pay costs here and in lower court.

From the above, it is clear that the Court of Appeal made a final decision on the appellant's salary, housing allowance, lunch allowance, transport allowance, pay in lieu of notice of termination of employment and general damages. the Court of Appeal further directed the trial judge to compute the appellant's accountability.

As directed, the matter came up before Hon Justice Mr. Benjamin Kabiito who dismissed the appellant's claim for a defined pension and awarded him deferred pension benefit of a sum of Ugx. 4,739,646 as at 30th September, 2011 and interest thereof. Being dissatisfied with the awards made in respect of pension, the appellant appealed to the Court of Appeal vide Civil Appeal No. 168 of 2012.

From my observation, it is very clear that the appeal before the Court of Appeal was in part on only the pension awards for which the appellant was dissatisfied. In other words, there was no appeal on the other awards of salary, housing allowance, lunch allowance, transport allowance, suspension, payment in lieu of termination of employment; general damages and interest thereon vide Civil Appeal No. 85 of 2005. As such, the court made a final determination on these awards in its decree vide Civil Appeal No. 85 of 2005 and there was no appeal whatsoever from the parties on the same save for the appellant's appeal on the pension award.

This therefore means that the time for execution of the awards in the decree started running on the 3rd day of April, 2009 after the decree was extracted. The 12 years within which the appellant was supposed to have brought execution proceedings lapsed on the 4th April, 2021 and judgment was unenforceable by then. This of course; excludes the award on pension for which the appellant commenced an appeal that was only finally determined by the decree vide Civil Appeal No. 68 of 2012 on the 29th of July, 2022.

As stated above, execution proceedings shall not be brought upon any judgment after the expiration of 12 years from the date on which the judgment became enforceable. The appellant cannot therefore bring execution proceedings for the enforcement of the Court of Appeal vide Civil Appeal No. 85 of 2005 since they are time barred. See *Kassam v Ghalib HCCA No. 17 of 1969 [1970] THCD N186*

I do not agree with the appellant's submission that the decree could not be executed as it was not final and there was a pending appeal. It is clear that the pending appeal was only in respect of the appellant's pension and no other part. The judgment of court of appeal was final and it put an end to an action by making an award of redress to a party, or discharges the other.

The appellant was therefore entitled to cause execution in respect of the final orders made by the court in Civil Appeal No. 85 of 2005 since there was no appeal against them save for the pension before the Court of Appeal. It suffices that those who go to sleep on their claims should not be assisted by the courts in recovering their property. Most importantly, there should be an end to matters and this shall be by protection against stale demands. A claim or right of action barred by statute cannot be enforced through court process. Actions brought out of the limitation period is a nullity. A nullity in law is a void act, an act which has no legal consequence and that the act is not only bad but incurable *(See: Green Pastures Limited vs The Cooperative Bank Ltd (In Liquidation) Misc. Applic. No 172 of 2015)*

I therefore find that the Registrar rightly reasoned that that the awards of the decree dated 03/04/2009 became stale and that the Court of Appeal conclusively determined the rights of the parties in paragraphs 2-4 leaving only the order on pension under paragraph 3 with no finality and thereby referred them back to High Court.

This appeal therefore fails and is dismissed with no order as to costs due to the circumstances of the case.

I so order.

*SSEKAANA MUSA JUDGE 25th October 2024*