[1999] UGCA 75

### THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA

# AT KAMPALA

HON. MR. JUSTICE S. T. MANYINDO, DCJ. CORAM: HON. MR. JUSTICE A. TWINOMUJUNI, JA. HON. LADY JUSTICE C. N. B. KITUMBA, JA.

#### CIVIL REFERENCE NO.11 OF 1999

#### 1. UGANDA CORPORATION CREAMERIES LTD. ::: APPELLANTS

# 2. HENRY KAWALYA

#### **VERSUS**

#### REAMATION LIMITED ::::::::::::::::::::::::::::::::::::

(A reference to a full bench against the Ruling and Order of Hon. Justice G. M. Okello (Single Judge) in Civil application No.48 of 1998 dated $5/3/99$ )

#### JUDGMENT OF THE COURT:

This is a reference from the ruling of a single judge of this court whereby the judge dismissed the appellants application with costs.

The facts giving rise to the application are as follows:-

On 29th July 1997 the High Court (Hon. J. P. Berko, J. as he

then was) entered judgment against the two appellants for US \$365,000 in H. C. C. S. No.738 of 1995. They appealed to this court which appeal was subsequently struck out under Rule 81 of the rules of this court. The respondent then filed a bill of costs which was taxed by the Registrar of this court at shs.17,567,600/= on 31st July 1998. On the application of the respondent, the Registrar issued a warrant of execution on 28th September 1998 to one Muqume Stephens with orders to attach and sell two motor vehicles specified therein. On 2nd October 1998 before the execution of the warrant, counsel for both parties filed in this court a consent settlement whereby the appellants agreed to pay the decretal amount between that day and the 22nd October 1998. The appellants paid all the money as agreed. According to the affidavit of Mr. Blaise Babigumira (counsel for the respondent) dated 1st December 1998, after the consent settlement was filed, the Court Brokers were instructed to abandon the execution process and in any case the said warrant had since expired. The warrant of attachment was eventually returned unexecuted.

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On 16th October 1998, while the appellants were fulfilling their obligation under the consent settlement, they filed a Notice of Motion seeking orders that the warrant of attachment issued by the Registrar of this court be set aside on the grounds that the Registrar had no power to issue the warrant in the first place. The application was heard by Hon. Justice G. M. Okello sitting as a single Judge who dismissed the application holding that this court had powers under $S.47(2)$ of the Judicature

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Statute 1996 to issue warrants of execution and the Registrar had properly exercised that power. The only ground for the reference is that:-

> "The learned trial judge erred in law while interpreting S.47 of the Judicature Statute and S.29 of the Civil Procedure Act and subsequently came to the wrong conclusion that the Registrar of the Court of Appeal has powers to issue a warrant of attachment in execution of a Decree."

The prayer of the appellants is that the Ruling of Hon. G. M. Okello and the warrant of attachment issued by the Registrar on 28th September 1998 be set aside with costs."

During the hearing of this reference before us, it was established, and conceded to by counsel for the appellants that:-

- $(a)$ The order of this court against the appellants to pay to the respondent sha.17,567,600/= has been fully complied with. - $(b)$ No property belonging to the appellants has been attached following the issue of the warrant and none is under any threat of attachment. - The warrant of attachment issued by this $(c)$ court on 28th September 1995 was returned to this court on 26/10/98 unexecuted.

In these circumstances, we are at a loss as to why this application was filed in the first place. The order for payment

of costs to the respondent has already been complied with. No property of the appellants has been attached. None is under threat of attachment. It is not material any more whether the Registrar of this court had power to issue a warrant of attachment or not. It was never executed and has since lapsed. All proceedings before Hon. Justice G. M. Okello and those before this court have been academic. It is a well known principle of our law that courts do not adjudicate on academic issues. In this case no injustice has been caused and none is threatened. No remedy of any kind is called for. This is an abuse of court process which we cannot allow to continue once it has been brought to our notice. We have no doubt that if this matter had been brought to the attention of Hon. Justice G. M. Okello he would have decided the matter otherwise.

The foregoing would dispose of this reference. An issue was raised by the appellant which is of such importance that we feel it should not be left undecided. The issue is whether the Registrar of this court has power to issue a warrant of execution in civil proceedings. Learned counsel for the appellant argued that $S.47(2)$ of the Judicature Statute upon which the learned single judge relied to hold that the Registrar has such powers does not give express powers to the Registrar. He submitted that it can only have meaning when read together with S.29 of the Civil Procedure Act. When read together, he argued, the effect would be that if a decree is issued by an appellate court, the court to execute it would be the court of first instance. He argued that this is borne out by the fact that the rules relating

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to execution are contained in the Civil Procedure Rules which give the powers of execution to the High Court. He pointed out further that the rules of this court do not make provision for objector proceedings which in his view lent credence to his argument that this court has no powers of execution. He submitted that to interpret $S.47(2)$ of the Judicature Statute otherwise would lead to absurd results like where if the warrant of execution was carried out wrongly, an objector is required to file a suit which cannot be done in the Court of Appeal.

On the other hand Mr. Blaise Babigumira, learned counsel for the respondent, submitted that the jurisdiction of this court was contained in the Judicature Statute 1996 and the Rules of this court. He cited S.1(2) of the Civil Procedure Act which provides:-

> "This Act shall extend to proceedings in the High Court and in all magistrates' Courts."

In his view the provisions of the Act, namely S.29, S.68 and S.81, do not apply to the Court of Appeal of Uganda and therefore the learned single judge was correct to hold so and to rely solely on the provisions of S.47 of the Judicature Statute.

Section 47 of the Judicature Statute 1996 whose marginal note reads "Process and Execution" provides as follows:-

$"47(1)$ The process of the Supreme Court, Court of Appeal and the High Court in exercise of this jurisdiction under this statute and of any other jurisdiction

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conferred upon them shall run throughout Uganda.

$(2)$ Any order or judgment of the Supreme Court or the Court of Appeal given in exercise of their jurisdiction under this statute, may be executed and enforced as if it were an order or judgment of the High Court. (Emphasis ours)

In interpreting this provision, the learned single judge stated: -

"In any view, Section $47(2)$ of the Judicature Statute No.13 of 1996 is clear. It permits any order or judgment of the Supreme Court or Court of Appeal to be executed and enforced as if it was an order or a judgment of the High Court. That meant that any order or judgment of the Supreme Court or court of Appeal may be executed and enforced in the manner the order or judgment of the High Court is executed ad enforced. There is no need to bring in Section 29 of the Civil Procedure Act. Apart from the Judicature Statute, only the Court of Appeal Rules Directions 1996 applies to the Court of Appeal. I agree with $Mr.$ Babigumira that there is nothing in that section which limits the powers of the Registrar to issue

a warrant in execution of the court's order. If that were the intention of the legislators, nothing would have prevented them from expressly limiting the Registrar's power under the section. Absence of the execution process in the Court of Appeal Rules does not affect the power conferred by Section $47(2)$ above." (Emphasis ours)

We agree with this holding and in particular:-

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- That the provisions of the Civil Procedure Act $(a)$ relating to enforcement and execution of the orders and judgments of the Court of Appeal, except as provided in S.47 of the Judicature Statute, do not apply to the Court of Appeal. - Section 47 of the Judicature Statute gives the Court $(b)$ of Appeal full powers to execute and enforce its own orders and judgments. - That section permits the Court of Appeal to apply the $(c)$ laws and rules of the High Court when executing and enforcing its orders and judgments. - The legislature could have excluded the Court of $(d)$ Appeal from executing and enforcing its orders and judgments by providing, for example, that any order and judgment of the Supreme Court and the Court of appeal "may be executed and enforced BY THE HIGH COURT as if it were an order or judgment of its own."

In their wisdom, the legislators did not. This clearly shows that they intended that each superior court should have power to

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enforce its own orders and judgments.

Finally the argument that the Rules of this court do not provide procedure for execution of decrees and judgments is not sustainable. Clearly, as we have already observed, Section 47 of the Judicature Statute permits this court to apply procedures applicable in the High Court to be applied in this court in execution proceedings. This includes those applicable to objector proceedings. The fact that an execution has been ordered by this court does not in any way stop an objector from filing his objection in the usual manner in the High Court.

For the reasons given above the reference is struck out as incompetent. The respondents will have the costs of the reference.

Dated at Kampala this $\mathcal{J}$ . $\mathcal{G}$ . $\mathcal{L}$ day of $\mathcal{J}$ . $\mathcal{L}$ . $\mathcal{L}$ . $\mathcal{L}$ . 1999

$S$ $T$

DEPUTY CHIEF

$11000$ ITWINOMUS JUSTICE OF APPEAL

C. N. B. KITUMBA JUSTICE OF APPEAL

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