THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT MENGO

(CORAM:

ODER, TSEKOOKO, KAROKORA, MULENGA, KANYEIHAMBA, JJSC)

C IVIL

APPEAL

NO.3

OF

2002

BETWEEN BAMU PARTNERS AND AUCTIONEERS AND ATTORNEY GENERAL RESPONDENT APPELLANT

(Appeal from the decision of the Court of Appeal of Uganda at Kampala by (Hons. Kato, Berko, Twinomujuni, JJA), dated 5th January, 2001 in Civil AppealNo.33/200~
JUDGMENT OF KAROKORA, JSC.

The appellant,

Bamu Partners

and Auctioneers,

was the successful

party before the Deputy Registrar of the High Court, Taxing Officer in Taxation proceedings which the respondent the appellant Land (Asia) BHD in compliance opposed on the ground that of shares of Westmont 19 r 43(1)(2) of Civil had not effected any attachment with Order

The brief facts of the case which gave rise to this appeal were that in HCCS No. 476 of 1999 the Attorney-General the respondent) judgment Bank. Registrar Westmont 32,272,821,041/= against Westmont Land (hereinafter referred to as of Shs. and the Uganda Commercial Bank (Ltd) (UCB) obtained (Asia) BHD for a sum applied which was worthy 490/0 shares 1999, the appellant of the holding of the to the Deputy and sale of At the

On 1st September

of the High Court for a warrant Land (Asia) BHD's shares

of attachment

which it held in UCB.

taxation proceedings, Dr. Sempasa for the respondent

opposed item 1 on

the bill of costs which is Shs. 968,184,623/= This amount was described as fees for attachment of shares. That amount is 3% of the decretal amount of Shs. 32,272,821,041/=. other wards Ltd. because attachment Counsel objected to the above claim In nor sold the on the ground that the appellant did nothing to deserve the award. he contended that the appellant neither attached by the time the appellant received

the shares of Westmont Asia Land (Asia) BHD which it had in the UCB the warrant, had already been effected by the respondent. and offended and

There were six grounds of appeal which were argumentative rule 81 of the Rules of this court. Counsel for appellant was drawn When the attention to this error,

of Mr. Mbabazi,

he conceded

abandoned grounds 1, 2 and 6. With leave of court were amended to read as follows:(3) The learned Justices

grounds 3, 4 and 5

of Appeal erred in law in holding that the

appellant did not comply with Order 19 r 43(1)(2). (4) The learned Justices appellant's of Appeal erred in law in holding that it was

duty to prove that he had carried out the attachment.

2

(5)

The learned Justice consider 5,6,7,10

of Appeal erred in law when they failed to of Appeal viz grounds of Appeal in Civil Appeal

and make findings on grounds and 12 of the Memorandum

No.33j2002. Counsel for appellant argued the three grounds together. He submitted that there

that the gist of these grounds was whether the determination

had been non-compliance with Order 19 r 43(1) and (2) of the Civil Procedure Rules could be made on the available evidence. Counsel submitted that there was evidence on record showing that the appellant of had notified the Secretary of the UCB Ltd that a warrant of attachment

the shares of Ms Westmont Land (Asia) BHD in the UCB Ltd had been issued to the appellant forbidding transfer of the said shares from UCB or receiving ordered proceedings attachment, any payment Further, proceeded parties because of any dividends counsel on the basis had thereon that that until otherwise by court. submitted at the taxation was proper before the

there

even Dr. Sempasa

conceded

Registrar that some work had been done by the appellant but contended that the attachment was done by the respondent. Counsel submitted that the Registrar held that if Dr. Sempasa carried out any work under Order 19 r 43 then he only assisted assignmen t. presented by the court bailiff. the court bailiff to carry out his allowed the bill of costs as Accordingly, the Registrar

When the matter went on appeal to the High Court the learned Principal Judge reversed the decision of the Deputy Registrar on the ground that the appellant had not complied with Order 19 r 43(1)and (2) of Civil Mr. Mbabazi, counsel for the appellant contended Procedure Rules. The learned Principal Judge's decision was upheld by the Court of Appeal. the appellant that the conclusion of the Court of Appeal was made in error, because had not been called upon to prove compliance with Order 3

19 r 43. Therefore counsel submitted

that the appeal should be allowed or a retrial be

and that the ruling of the Registrar should be restored ordered.

On the other hand Ms. Baturu uka, counsel for respondent, adopted the submissions the gist of which was:"No proof Registrar 'attached" There was whatsoever was led either before

opposed the She

appeal and invited us to uphold the decision of the Court of Appeal. of the respondents

before the Court of Appeal

the

or the Principal Judge that the bailiff in fact anything in compliance with Order 19 r 43. did

no showing

by the bailiff that they

anything in relation to the two critical acts required under law, namely: (i) (ii) servzng a copy of the prohibitory order to the secretary of the corporation and,
affixing a copy of the same In a COnspICUOUS location of the court.

Such evidence as is available and was relied upon by the court, was the letter attached as annexture LTl to the respondent's affidavit in reply. That annexture and " revealed simply that a warrant of attachment (and not a prohibitory order as required) was enclosed forwarded UCB and possibly to the Registrar of Companies In addition she submitted had submitted by bailiff to the company secretary of the

that before the Deputy Registrar Dr. Sempasa

that there was no evidence to show that the appellant 4

carried out the process of attachment Order 19 r 43, and that the respondent by the time the appellant attachment appeared

of the shares in accordance procured the prohibitory on the scene,

with order. of

Dr. Sempasa had opposed payment of item 1 of the bill of costs, because the process had already been completed by the respondent.

On the complaint by the appellant's counsel that it was erroneous for the learned Principal Judge to rely on non-compliance had not been an issue before the Deputy respondent address submitted with Order 19 ;\thich "I

Registrar,

counsel

for

that the learned Principal Judge was correct to of the shares as provided by the law. of Appeal considered the complaint and

the issue of attachment

She contended that the Justices

found that the learned Principal Judge correctly resolved that there was no attachment of the shares with the law. She therefore invited us to dismiss the appeal.
t--.-

I shall consider each of the three grounds as amended separately. Ground three complained (l)and (2). that the learned Justices was in respect of Appeal erred in of shares which

law in holding that the appellant

did not comply with Order 19 r 43

Clearly the attachment

Westmont Land (Asia) BHD held in the UCB Ltd. There is no way, in my view, in which this issue would have been resolved without considering the question provides possession of whether the appellant of debt, shares, had effected attachment as provided by the law. Order 19 r 43( 1) and (2) of Civil Procedure Rules for attachment and other property not in of a judgment debtor as follows:"(1) In case of, (a)

a share in the capital of a corporation;

5

(b)

other movable property not in possession the judgment debtor, except

of

property

deposited in or in the custody of any court, the attachment order prohibiting. (i) in the case of the share, the person in whose name the share may be standing from transferring the same or receiving any dividends thereon; (2) A copy of such order shall be affixed on some conspicuous part of the court house and another copy shall be sent, in the case of the shares, to the proper officer of the corporation" Clearly the attention of the appellant was drawn to non-compliance the provisions of Order 19 r 43 at the hearing Registrar when Dr Sempasa counsel for respondent appellant, in rebuttal stated that the attachment how counsel with shall be made by a written

before the Deputy was done by got

who had effected service. However, counsel for wondered for the respondent of the property they were supposed to protect. counsel

involved in the attachment

The Deputy Registrar impliedly conceded that the respondent's had effected service but held that if Dr. Sempasa's attachment he assisted the appellant in the attachment

firm effected

of the shares. He

therefore allowed the bill of costs as presented. The respondent appealed to the High Court against the ruling of the of the to
6

Deputy Registrar. The Principal Judge allowed the appeal on the ground that neither the appellant nor the respondent shares in accordance effected attachment with Order 19 r 43(2). The appellant appealed

the Court of Appeal which dismissed the appeal on the ground that the appellant had not proved that he had complied with the law. The appellant complied further appealed to this Court. The complaint is whether never in any the attachment of shares

the Court of Appeal erred in law in holding that the appellant with the law. Clearly

Corporation is governed by Order 19 r 43(2) of the Civil Procedure Rules. After carefully going through the record, it is clear from the evidence that the appellant never took out and accordance with the law. served the prohibitory order in

In the result, I do agree with the conclusions with the law. Consequently,

of the learned Principal of Appeal who clearly of the

Judge who held that neither party had effected service in compliance I cannot fault the Justices confirmed the decision of the learned Principal Judge, because, there was no evidence that the appellant had effected attachment shares which Westmont compliance with the law. In the result, ground 3 must fail. Ground 4 complained that the Justices of Appeal erred in law in holding that it was appellant's duty to prove that he had carried out the this attachment. In the Court of Appeal Twinomujuni, JA, considered

Land (Asia) BHD had in the DCB Ltd in

matter in the following words. "Before the Deputy Registrar and the Principal Judge the appellant's right to receive payment for work done in the attachment of the shares was challenged. It was his duty to prove that in fact he had carried the duty for which payment was being sought. In order to 7

do that, he had to produce

evidence

to establish provisions

that Order

he had complied with the mandatory 19 r 43 of the Civil procedure duty of the respondent not complied with." Rules.

It was not the

to prove that Order 19 r 43 was

Mr. Mbabazi, Counsel for appellant, contending that the appellant

submitted

before us that the Court upon to prove

of Appeal was in error in upholding the decision of the Principal Judge, had not been called compliance with Order 19 r 43 of the Civil Procedure Rules. The respondent had opposed the appellant's bill of costs before the claimed to overruled effected in The Registrar the appellant had

Registrar on the ground that the work which the appellant have done was done by the respondent. respondent's attachment. objection and held that

The Principal Judge, rightly in my view, reversed Registrar's This was in

decision on the ground that the appellant had not effected attachment compliance with the mandatory provisions of Order 19 r 43.

conformity with the Supreme Court decision in the case of Adonia Makudi vs. Christ Mukasa SCCA No.2 of 1986 where this court held that an appellate court can on its own motion consider a point of law that was not argued by Counsel. Therefore I cannot see anywhere where the Court of Appeal erred in upholding Judge. If the appellant's based on the attachment the decision of the Principal in the bill of costs was opposed on claim for the amount

of the shares which the respondent

the ground that there was no attachment the appellant

by the appellant to deserve any of the shares in The record

payment under 1st item of the bill of costs, then the onus was clearly on to prove that he had effected attachment compliance with the mandatory provisions of 19 r 43 (supra). showed that he had not effected attachment of the shares.

8

Therefore ground four must fail. Ground five as amended complained that the learned Justices of appeal viz grounds 5,6,7,10 and 12 of the Memorandum Civil Appeal No. 33 of 2000. judgment Twinomujuni, of Appeal

erred in law when they failed to consider and make findings on grounds of Appeal in JA., who wrote the lead

of the court formed the opinion that only two grounds emerged counsel, namely:by the learned Principal

from the submission of appellant's
(1 )

Whether the appeal which was entertained Judge was illegal/a nullity.

(2)

Whether the learned Principal Judge erred in law or fact when he held that no attachment No. 447/99. proceeding were accomplished in HCCS

After carefully considering those grounds, the learned Justices of Appeal, found no merit and dismissed the appeal.

of Court

Kato, JA., as he

then was, while agreeing with the conclusion of Twinomujuni JA., added that: "Although Counsel for the appellant framed nine

alternative grounds of appeal, these grounds should be considered as irrelevant in view of the fact that the appellate judge correctly resolved that there was no attachment carried out by the appellant and that the appellant's Counsel did not raise the issue of time limit before the appellate judge. " Counsel for appellant did not addressed grounds 6, 7, 10 and 12 complained the court on what each of the

of in order to spell out what the 9

Court of Appeal failed to consider. It is true that in the lead judgment Twinomujuni, JA, these grounds were not addressed. as he then was considered these grounds and held thus:"These grounds should be considered the fact that the appellate was no attachment appellant's the appellate Although the Justices carried as irrelevant resolved

of

However, Kato JA,

in view of that there before

Judge corretly

out by the appellant

and that the

counsel did not raise the issue of time-limit Judge." of Appeal never specifically considered

each of a

these grounds,

it was not shown that the omission had occasioned

miscarriage of Justice. Therefore, this ground must fail. In the result, I would dismiss this appeal. respondent here and in the courts below. I would award the costs to

Before taking leave of this case I am constrained to comment on the manner in which the court bailiff came to be involved in this case and the manner the court bailiff presented the bill of costs and the methods in which the Registrar taxed the bill of costs. Firstly, the court bailiff came on the scene of this case had effected attachment of the shares after the in

respondent

of the company

accordance with Order 19 r 43. At that stage, one would wonder why the Registrar found it necessary to instruct the appellant to come in the case when the shares of Westmont secured. Land (BHD) were already attached and

10

Secondly, assuming instructions

that the Registrar was right to assign the file with of shares, one would wonder what = for

to carry out attachment

part the appellant did to justify claiming fees of shs. 908,184,623/ the attachment. In my view, one looking at the bill of costs as presented

by the court

bailiff and the manner in which it was taxed by the Registrar, one would wonder whether our law would not be described as an ass if it permits a courtbailiff attached Instrument pennits to claim fees amounting of shares as in the instant the Reqistrars to as much as Shs. 968,184,623/= whether these were already law9 StatutoTJI amount of If the for attachment in a company

case or not.

(S.I} No. 64 of 1987 as amended to allow

bu SI No. 15 of 1991

such unconscionable

moneu as fees for attachment case9 then provide an amendment

bu court bailiff as it was done in this of the relevant This is absolutelu law is necessaTJI to necessaTJI in view of this tupe as bill present should not exceed in awarding

limits which the Registrar

the fees to the court bailiff. the fact that some Reqistrars

like this one who handled the court bailiffs

of claim tend to endorse whatever

of costs without anu due regard to the amount of work done. Lastly, I think that this is a proper case which should be passed on to the Hon. the Chief Instrument amended this Justice with a suggestion that the Statutory should be (SI No 64/87 as amended by SI No 15/91)

to provide for limitations to the Hon. the

of awards to Court bailiffs by the Chief Justice for study and

Taxing officers. The Registrar of this court is directed to send a copy of judgment possible / necessary action.

Dated

at Mengo

this

...J (~ ~

~,~ Day of..I.w..~

A

, 2003

11

~~~~

'-.................................

A.N. Karokora, Justice of the Supreme

Court.

"

THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT MENGO (CORAM: ODER, TSEKOOKO, KAROKORA, KANYEIHAMBA, JJ, SC) CIVIL APPEAL NO.3 BETWEEN BAMU PARTNERS AND AUCTIONEERS: AND A TTORNEY GENERAL: OF 2002
MULENGA

AND

...... ...... ...... ......

APPELLANT RESPONDENT

(Appeal from the decision of the Court of Appeal at Kampala (Kato, Berko, Twinom:ujuni, JJ.A) dated 5th January, 2001, in Civil Appeal No. 33 of2000}.
JUDGJlrIENT OF ODER, JRC.

I have had the benefit my Hon. Brother,

of reading JSC.

in draft the judgment

prepared

by

Karokora,

I agree with him that the appeal and in the courts below.

should

b.,-:dismissed

with costs here

As

the

other

members

of the

Court orders.

also

agree,

the

appeal

is

accordingly D at ed

dismissed
IIii'.

with such
'~
J

at

~ .1" thi . J.r.l.engo s.. ./.. uay OJ

n~ v-o4h

r

.....

2002

.

JUSTICE OF THE SUPREA!lE COURT

~

~

REPUBLIC OF UGANDA SUPREME COURT OF UGANDA AT MENGO (CORUM: ODER, TSEKOOKO, JJ.SC.) KAROKORA, MULENGA AND

KANYElHAMBA

CIVIL APPEAL

NO.14

OF 2001

BETWEEN

BAMU PARTNERS

AUCTIONEERS
AND
i.

APPELLANT RESPONDENT

ATTORNEY GENERAL [Appeal from the decision and Twinomujuni, No.33 of 2000). JUDGMENT OF TSEKOOKO, JSC : I have had the benefit JSC, and of reading in draft JJA)

of the Court of Appeal

(Kato, Berko

dated 5th January

2002 in Civil Appeal

the judgment that

of the

Karokora, appeal by him.

I agree

with his conclusions I agree with the orders

should

be dismissed.

proposed

.-1t
Delivered at Mengo the
Lf

day

rVl£ctoUt

.

of 2003.

i.

IN THE SUPREME COURT OF UGANDA AT MENGO
(Coram: Oder, Tsekooko, Karokora, Mulenga, Kanyeihamba, JJSC)

CIVIL SUIT NO.3 OF 2002
BETWEEN

BAMU PARTNERS AND AUCTIONEERS AND
ATTORNEY GENERAL
... ...

APPELLANT

RESPONDENT

(Appeal from the decision of the Court of Appeal (Kato, Berko, Twinomujuni, JJA) at Kampala, dated 5th January, 2001 in Civil Appeal No. 33 of 2000)

JUDGMENT OF MULENGA, JSC I read in draft the judgment prepared by my learned brother

Karokora JSC.

I agree with him that this appeal should be

dismissed with costs to the respondent.

DATED at Mengo this

.r.~

day of .{Vlf,:,v.0'?:-,... ..2003

\p

i.r

'-'. . . . - - " . ' 'b

THE REPUBLIC OF UGANDA. IN THE SUPRElVlE COURT OF UG.ANDA
i\ T lVlENGO
(CORAM: ODER, TSEKOOKO, KAROKORA, KANYEIHAMBA, JJ.SC) CIVIL APPEAL NO.3 OF 2002 BETWEEN MULENGA A~ND

BAMU PARTNERS AND AUCTIONEERS :::::::: APPELLANT AND ATTORNEY GENERAL :::::::::::::::::::::::::::::::::::RESPONDENT
(Appeal from the decision of the Colin of Appeal ar Kampala. (KalO. Berko. Twinomlljllni. JJA) dared jlh January. 2001. in Civil Appeal No. 33 of 2000).

JUDGlVlENT OF KANYEIIL\lVIBA, J.S.C.
I have had the benefit of reading in draft the judgment of my brother Karokora JSC. I agree \vith him that this appeal should be dismissed and I also agree with the orders he has proposed.
.'-"'--'"

Dated at lVlengo thls

. / ([h

Day of .!Y

1t:i-{/. .2003

~

/) / ~'1U;£-~ 1,/ P/; I ~w. KAN'YE~"K ,~ (TV)!» f/