[2024] UGHC 303

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MASAKA. CIVIL SUIT NO. 45 OF 2020**

**MUGISHA EDWARD :::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF**

### **VERSUS**

- **1. ATTORNEY GENERAL** - **2. NDOREBIRUNGI JOB**

## **T/A MARUNGIALAALI & ASSOCIATES .::::::::::::::::::::DEFENDANTS**

### **BACKGROUND:**

The plaintiff, Mugisha Edward instituted Civil Suit No.57 of 2011 at the High Court in Masaka and judgment was delivered in his favour. The decree was partly executed and the judgment creditor obtained the part of the fruit of his judgment. Later in May, 2016, costs were taxed and allowed at 51,314,370/=. Subsequently, a warrant of attachment was issued by the Assistant Registrar to Ndorebirungi Job t/a Marungialali & Associates to recover 51,314,370/=(**Fifty-One Million Three Hundred Fourteen Thousand Three Hundred and Seventy shillings)** from Dan Mugarasi and others arising from the said Civil Suit No 57 of 2011 [*Mugisha Edward vs Dan Mugarasi and other*] for the benefit of Mugisha Edward the plaintiff.

The 2nd Defendant Ndorebirungi Job a bailiff executed the Court order by attaching 50 acres of land comprised in LRV 3138, Folio 8, Plot 10 Block 181 registered in the names of the Judgement debtor Mugalasi Dan and Jane Ngarambi and sold the same at 50,000,000/= and only deposited 20,000,000/= in Court with no explanation as to the balance of 30,000,000/=. The 1st Defendant later purportedly authorised the 2nd Defendant to withdraw the 20,000,000/= from Court and further directed the Registrar of Titles Masaka Zonal Office to vacate the Plaintiffs Caveat.


It was on the suspicion that the 1st and 2nd Defendants had defrauded him of Ugx 50,000,000/- that the Plaintiff instituted this suit.

The 1st Defendant filed its Written Statements of Defence and denied liability. The 1st Defendant averred that his agent acted diligently when he refused to issue a warrant of attachment and sale to the Plaintiff's preferred agent Niki Gordon. That the Plaintiff appointed and preferred Niki Gordon to carry out the execution and even though the 1st Defendant's agent did not issue the warrant of attachment and sale to the said Nikki Gordon, the actual execution was carried out by Nikki Gordon.

On the 26th day of October, 2023, Court issued a hearing notice notifying the 1 st and 2nd Defendant that the case was fixed for hearing on the 26th day of October, 2023 at 9:00a.m. The said hearing notice was served on the 1st and 2nd defendant and a return of service filed the 30th day of November, 2023. When the case was called for hearing neither the 1st Defendant, nor the 2 nd Defendant was present and the suit proceeded *ex parte* against them under O. 9 Rule 20 (1)(a) of the Civil Procedures Rules.

The Plaintiff was directed to file written and electronic submissions which he did. I will refer to them where necessary in the determination of this matter.

## **Determination of the Court**

The Plaintiff framed several issues which the court will reframe as follows: Whether or not the execution of the decree in Civil Suit No.57 was properly and legally conducted?

Plaintiff's Counsel contends that when the court delivered its judgment in C. S No.57 of 2011, some of the orders were executed and in the plaintiff's words, "*without disturbance".* That however, on the 19th day of May, 2016 the Bill of Costs was taxed and allowed at 50,062,800=. That unbeknownst to the Plaintiff, the 1st Defendant's agent appointed the 2 nd Defendant to execute and recover 51,314,370/=. The said Ndorebirungi Job, the 2nd Defendant proceeded to execute the warrant of attachment by attaching 50 acres of land


comprised in LRV 3138, Folio 8, Plot 10, Block 181 registered in the names of the Judgment debtors in C. S No.57 of 2011.

He then filed a partial return on the 24th day of August 2017, applied for an order of sale of the attached land which application was granted by the assistant Registrar. The land was, as a result of the order sold at 50,000,000/-. The Plaintiff claims that he only got to know about the sale when the 2nd Defendant evicted the judgment debtor from the land. That upon executing the decree the 2nd Defendant only deposited 20,000,000/= in court which he later withdrew with the approval of the 1st Defendant. Further that the 2nd Defendant in his Written Statement of Defence and paragraph 6 (e) claims that all the proceeds of the execution were deposited in Court, yet the WSD of the 1st Defendant in paragraph 4 (d) claims that 2nd Defendant only deposited 20,000,000/= in court which he later withdrew.

Counsel cited **O.22 Rule 1 of the CPR** which provides that *all money payable under a decree shall be paid into the court whose duty it is to execute the decree or direct to the decree holder.* He submitted that the order was never followed by the Defendants. That court was under an obligation under O.22 Rule 2 to notify the plaintiff when the 20,000,000/= that was deposited in Court but instead chose to allow the 2nd Defendant withdraw the same.

Further that *O. 22 r 61 of the Civil Procedure Rules requires that the proceeds of the sale, or a sufficient portion of the proceeds, shall be paid to the party entitled under the decree to receive them*." That even though the execution was conducted and concluded the Plaintiff/Judgment Creditor never benefited from the execution proceedings.

I have perused the record including the plaint, the written statement of defence and the Joint Scheduling Memorandum. The Plaintiff's claim is for recovery of Ugx 55,000,000/ being costs and general damages recovered from the execution of the decree in Civil Suit No.057 of 2011.


The Notice of Intention to sue attached to the plaint indicates that the intended plaintiff appointed through his lawyers, Nikki Gordon T/A as Allianz Associates to recover the costs and general damages of the suit.

On his part, the 1st Defendant in his Written Statement of Defence contends that the plaintiff appointed Nikki Gordon as his preferred bailiff and that the funds paid to court were withdrawn by the same Nikki Gordon. The 2nd Defendant also contends that he deposited all the money received in the execution process in Court.

I have perused the execution record. It shows that the plaintiff's appointed bailiff, Nikki Gordon actually withdrew from the court account, Ugx 20,000,000/- deposited by the 2nd Defendant. On the 1st day of March 2018, he endorsed the 2 nd Defendant's letter dated 27th February, 2018 with the following words:

*"I GORDON N hereby acknowledge receipt of 20m (Twenty Million) money earlier deposited in court from the cashier."* He then signed the acknowledgment and attached to it a copy of his Driving Permit as well as a copy of his National Identity Card.

Further, a letter dated 18th December, 2017 from the Assistant Registrar of the High Court was addressed to Nikki Gordon t/a Allianz to file a return of execution process in Civil Suit No.57 of 2011.

Be it as it may, the rules cited by Counsel for the Plaintiffs, particularly, *O. 22 r 1 and 61 of the Civil Procedure Rules requires that the proceeds of the sale in execution should be paid to the party entitled under the decree to receive them.*

To find as argued by the Defendants in their pleadings that since Nikki Gordon, was at some point appointed as the Plaintiff's preferred agent, he was equally entitled to withdraw the proceeds of execution would be to open a can of worms. This would create a negative precedent through which bailiffs, having recovered the proceeds of execution, would appropriate the same to themselves under the guise of onward transmission of the same to the Judgment creditors. This has never been the intention of the law and this Court is not about to set such precedent.


There is no evidence that the Plaintiff executed a power of attorney to confer upon his preferred Bailiff, Nikki Gordon, more powers than those provided to the bailiffs in the Civil Procedure rules. As such, the said Nikki Gordon, had no right or duty to collect the proceeds of execution on behalf of the Plaintiff. The payments to Nikki Gordon, were made mistakenly and the 1st Defendant is vicariously liable for the UGX. 20,000,000/=(Uganda Shillings Twenty Million) that was deposited in Court as pleaded by the Plaintiff.

In the same vein, the 2nd Defendant is liable to compensate the Plaintiff for UGX. 30,000,000/= (Uganda Shillings Thirty Million Only) that was paid to him under the agreement of sale of land in execution, dated 4th September 2017, between Lubwama Isa Mayanja (purchaser) and the 2nd Defendant (the vendor). This agreement was admitted on the record of this Court as Plaintiff's exhibit, PEX6.

The Plaintiff also prayed for General damages of UGX. 100,000,000/= (Uganda Shillings One Hundred Million Only).

The Plaintiffs evidence is in his witness statement filed on the record of this Court on 30th August 2023 which was adopted as the Plaintiff's examination in chief. The Plaintiff testified in paragraph 23, that as a result of the mismanaged execution process, he has been exposed to extreme loss and inconvenience for which he holds the defendants liable.

**In** *Uganda Commercial Bank Vs Kigozi (2002) EA 305***,** *it was held that the consideration of general damages should mainly be the value of the subject matter, the economic inconvenience that a party may have been put through the nature and extent of the breach or injury suffered.*

All the circumstances of this case put into perspective, I find that the award of UGX. 100,000,000/= sought by the Plaintiff in general damages is excessive. I will award the Plaintiff with UGX. 10,000,000/= (Uganda Shillings Ten Million Only) in damages. Each of the defendant is liable to pay UGX. 5,000,000/= out of the total award to the Plaintiff in damages.


I will make no award on interest.

In conclusion, Judgment in this matter is hereby entered in favor of the Plaintiff. The Plaintiff is also awarded Costs of this suit.

I so order.

### **Orders**:

- *1. The 1st Defendant is vicariously liable to compensate the Plaintiff with UGX. 20,000,000/= (Uganda Shillings Twenty Million Only) that was erroneously paid out to a one Nikki Gordon.* - *2. The 2nd Defendant is liable to pay the Plaintiff UGX. 30,000,000/= (Uganda Shillings Thirty Million) being proceeds of execution collected on behalf of the Plaintiff.* - *3. Each of the Defendant shall pay the Plaintiff UGX. 5,000,000/= (Uganda Shillings Five Million Only) in general damages.* - *4. The Plaintiff is awarded Costs of this suit.*

Dated at Masaka this 11th day of May, 2024.


## **Victoria Nakintu Nkwanga Katamba**

**Judge.**