[1999] UGHC 32

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA HOLDEN AT KAMPALA

# CORAM: HON. MR. JUSTICE G. M. OKELLO, J. A.

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### MISC. CIVIL APPLICATION NO. 48 OF 1998

### BETWEEN

#### APPELLANTS HI 121 UGANDA CORPORATION CREAMERIES LTD.) HENRY KAWALGA ]

#### AND

REAMATOR LTD RESPONDENT

(Arising from Civil Appeal No. 9 of 1998. CA)

# RULING OF G. M. OKELLO, JA

This application was brought under rules ¹ (3) and 42 of the Court of Appeal Rules Directions 1996 for orders that Warrant of Attachment of Movable Property issued by the Registrar of the Court of Appeal on 28/10/98 be set aside and that costs of this application be provided for. The application was supported by an affidavit sworn by Henry Kawalya, the second applicant on 14th of October, 1998.

The background to the application is briefly as follows:- High Court had on 29/7/97 entered judgment against the applicant for the payment of USS 365,000. The applicant duly filed Notice of Appeal and also applied for the record of the proceedings. The said Notice of Appeal and the subsequent appeal which was filed were struck out by the Court of Appeal because Counsel for the applicant did not retain proof of service on Counsel for the respondent of copy of the letter requesting for proceedings as required by rule 82 (3) of the Court of Appeal Rules.

**i**

attachment that this application was brought. Following the striking out of the Notice and the appeal, the respondent filed Bills of Costs (hat were taxed and allowed at 17,567,600/=. In a bid to realise payment of these costs, Counsel for the respondent applied to the Court of Appeal for a warrant of execution which the Registrar of the Court granted. He issued warrant of Attachment of movable Property on 28/10/98. Under that warrant two motor vehicles were attached: (1) the first applicant's vehicle, a Mercedes Benz with a personal registration of Kawalya - Mercedes (2) ^A Toyota Select Saloon. This second motor vehicle was allegedly did not belong to the applicant at the time of the attachment but to a friend named Telemwa Michael. It was in respect of this

There are two grounds of the application namely:-

- **Bl** That the Registrar of the Court of Appeal erred in issuing the warrant of attachment because he had no powers to do so. - 12] That the issuance of the warrant is an abuse of Court process as firstly it was used to attach Property that did not belong to the applicant. Secondly, it was used to improperly attach the property.

It is the contention of Mr Kihika, learned counsel for the applicant that (1) Section 47 (2) of the Judicature Statute No 13 of 1996 does not give power to the Registrar of the Court of Appeal to issue warrant in execution of a decree of (he Court of *^J* Appeal. (2) The issuance of the warrant of attachment by the Registrar of the Court of Appeal was an abuse of Court process as it sought to exercise the power not conferred on the Registrar.

**XI**

Mr. Blaise Babigumire, learned Counsel for the respondent, opposed the application and Tiled an affidavit in reply which he swore on 1/12/1998. He contends that;-

- Ill Section 47 (2) of the Judicature Statute No. 13 of 1996 gives power to the Registrar Court of Appeal to issue warrant in execution of a decree of the Court of Appeal, - R| there is no warrant of Attachment to be set aside it having been removed by the active participation of Counsel for the applicant, - PJ on the principle of approbation and reprobation, Counsel for the applicant having actively took part in making the warrant in operative and having made payment in full in accordance with the terms of the settlement, they cannot be heard to complaint against the issuance of the warrant.

From the above contentions advanced by Counsel of both parties, three issues are postulated, naniely:-

I

*&*

- **Hl** Whether Section 47 |2| of the Judicature Statute No. 13 of 1996 gives power to the Registrar Court of Appeal to issue warrant in execution of a decree of the Court of Appeal? - [2] Whether a warrant of attachment of the warrant was an abuse of Court process? issued by the Registrar Court of Appeal on 28/10/1998 exists to be set aside? Whether the issuance - **|3J** Whether the principle of approbation and reprobation applies to the facts of this case.

On issue (1) above, Mr. Kihika argued that although the Section [47 (2)J does not expressly prohibit the issuance of warrant in execution by the Registrar of the Court of Appeal, the Section must be read with Section 29 of the Civil Procedure Act, then it will be concluded that only the Court of first instance is empowered to cany out execution of Court decrees.

Section 47 (2) of the Judicature Statute reads as follows:-

**j**

"Any order or judgment of the Supreme Court or the Court of Appeal given in the exercise of

**4**

their jurisdiction under this Statute may be executed and enforced as if it were an order or a judgment of the High Court."

Section 29 of the Civil Procedure Act (Cap 65) reads thus:-

decree, unless there is anything repugnant in the subject or context, be deemed to include:- "The expression 'Court which passed a decree' or words to that effect, shall in rotation to the execution of

- **la^l** where the decree to be executed has been posed in the exercise of appellate jurisdiction, the Court of first instance; and - lb] where the court of first instance has ceased to exist or to have jurisdiction to execute it, the court which, if the suit wherein the decree was posed where institutes at the time of making the application for execution of the decree would have jurisdiction to try the suit.

Mr. Kihika exphasises that the rules governing application for execution are found only in the Civil Procedure Rules which relate to the practice and procedure to Civil Litigation in (he High Court and in the Courts subordinate thereto but not in the Supreme Court or Court of Appeal Rules. He reasoned that the absence of these rules in the respective Rules of the Supreme Court and the Court of Appeal is because these latter two courts are not empowered to issue warrants in execution.

**5**

To illustrate his point, Mr. Kihika referred to paragraph 9 of the supporting affidavit which averred that the Toyota Select Saloon which was attached did not belong to the applicant at the time of the attachment but to a friend. He pointed out that in such circumstance if the attachment had been effected by the High Court, the applicant or his friend would have instituted an objector proceedings under 019 r 55 of the Civil Procedure Rules. But that this cannot be done in the instant case because there is no provision for it in the Court of Appeal Rules. He submitted that the issuance of the warrant of attachment by the Registrar of the Court of Appeal amounted to an abuse of the court process as it sought to exercise authority not conferred on him. He prayed that the warrant be set aside.

In my 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 were 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 and 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 Direction 1996 applies to Court Appeal. I agree with Mr. Bahigumira that there is nothing in that Section, which limits the powers of the Registrar to issue 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 rule of execution process in the Court of Appeal Rules does not affect the power conferred by Section 47 (2) above.

For those reasons, I find that the Registrar of the Court of Appeal has powers under Section 47 (2) of the Judicature Statute No. 13 of 1996 to issue warrant in execution. The warrant of Attachment issued by the Registrar of the Court of Appeal on 28/10/98 was therefore properly issued. It was not an abuse of Court process. This is enough to dispose off the application.

In the result, the application is dismissed with cost.

Dated at Kampala this. day of. 1999.

**a**

G. M. OKELLO JUSTICE OF APPEAL

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA HOLDEN AT KAMPALA

### CIVIL APPLICATION NO. 48 OF 1998

1. UGANDA CORPORATION CREAMERIES LTD):::::::::APPLICANTS 2. HENRY KAWALYA

#### **VERSUS**

REAMATON ::::::::::::::::::::::::::::::: RESPONDENT

$\mathcal{L}^{\mathcal{L}}$

CORAM: HON. JUSTICE G. M. OKELLO J. A

### **ORDER**

This application coming for final disposal in the presence of Oscar Kihika, Esq. Counsel for the Applicants and Blaze Babigumira, Esq. Counsel for the Respondent.

Upon Reading the application and the accompanying Affidavit filed in this Court on the 16th day of October, 1998.

IT IS HEREBY ORDERED that:

the application be and is hereby dismissed with the costs to the Respondent.

DATED at KAMPALA this 5th day of March, 1999.

We approve.

**PPLICANTS** COUNSEL

Extracted by M/S Babigumira & Co. Advocates, this 5th day of March.1999.

Given under my hand and seal of Court this 5th day of Warch,

**REGISTRAR**

.999 RECEIVED 21 AFR 1999 区