Acire v Aciro & 8 Others (Civil Suit 44 of 2023) [2025] UGHC 139 (27 March 2025)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT GULU CIVIL SUIT NO. 0044 OF 2023**

**ACIRE JOHN=============================================== PLAINTIFF**

## **VERSUS**

**1. ACIRO JENETH T/A JED COURT BAILIFFS AND AUTIONEERS ASSOCIATES 2. OCAYA ISMAIL 3. ONEN BYRON 4. OTUKENE SYLVESTER ORACH 5. OKELLO PETER 6. ODANI FAO 7. OJOK RICHARD 8. LAKONY STEPHEN alias SUNDAY 9. ONEN JOHN============================================DEFENDANTS**

## **BEFORE HON. JUSTICE PHILLIP ODOKI RULING**

## **Introduction:**

[1] This ruling arises from the preliminary objections raised by Counsel for the 1st, 2nd - 9th Defendants that this suit was wrongly filed before this Court and should be dismissed with costs.

### **Background:**

[2] In 2014, the 3rd Defendant instituted Civil Suit No. 027 of 2014 against the 4th - 9th Defendants before the Chief Magistrate's Court of Gulu holden at Amuru. The suit was dismissed by the trial Magistrate Grade 1 for want of prosecution with costs. The 3rd Defendant applied for reinstatement of the suit but the application was dismissed. The bill of costs in the suit was taxed and allowed at Ugx 11,910,800/=. The 3rd Defendant paid Ugx 4,000,000/=, leaving a balance of Ugx 7,910,800/=.

[3] On the 12th October 2015 the trial Magistrate issued a warrant of attachment to the 1st Defendant, a court bailiff, authorizing her to attach and sell the building/land situate at Forest sub – ward, Laroo Division, Gulu Municipality, Gulu District (hereinafter referred to as 'the suit land'), which was indicated to be property of the 3rd Defendant, in satisfaction of the taxed bill of costs and the costs of execution. The 1st Defendant advertised the suit land for sale in Rupiny Newspaper of 14th – 20th October 2015. The 1st Defendant commissioned East African Consulting Surveyors and Valuers who valued the suit land and found its forced sale value to be Ugx 26,400,000/=.

[4] On the 27th October 2015, vide Misc. Application No. 29 of 2015, the 3rd Defendant applied for stay of execution. Misc. Application No. 29 of 2015 was dismissed by the trial Magistrate. On the 22nd February 2016 the 1st Defendant sold the suit land to the 2nd Defendant at Ugx 26,400,000/=.

[5] On the 25th February 2016, vide Misc. Application No. 002 of 2016, the Plaintiff instituted objector proceedings against the 3th – 9th Defendants seeking that the suit land should be released from attachment. In his affidavit in support of the application, the Plaintiff deponed that the suit land is not liable to attachment for the reason that it was at all material times in his exclusive possession and use, and not in possession of the 3rd Defendant. The application was subsequently withdrawn by the Plaintiff upon realizing that the suit land had already been sold to the 2nd Defendant.

[6] The Plaintiff then filed the instant suit alleging that he bought the suit land from the 3rd Defendant on the 19th April 2009. He then employed the 3rd Defendant as his caretaker of the suit land. Thereafter, he installed water and electricity on the suit land. He also renovated the suit land and rented it out to Gulu University students. According to the Plaintiff, all utility bills for the suit land are paid by him. Upon realizing that the suit land had been advertised for sale, he informed the 1st Defendant that the suit land did not belong to the 3rd Defendant. However, the 1st Defendant went ahead and sold the suit land to the 2nd Defendant. The Plaintiff contends that the suit land was undervalued and that the sale was fraudulent. The Plaintiff seeks from this court a declaration that he is the rightful owner of the suit land; a declaration that the attachment and subsequent sale of the suit land to the 2nd Defendant is null and void; general damages and costs of the suit. In the alternative, the Plaintiff seeks to be compensated by the 1st, 2nd - 9th Defendants for his interest in the suit land.

[7] In his Written Statement of Defence, the 3rd Defendant denied being part of any fraudulent transaction to deprive the Plaintiff of the suit land. He admits that the Plaintiff is the rightful owner of the suit land.

[8] The 1st, 2nd - 9th Defendants filed a joint Written Statement of Defence in which they contend that before attachment and sale of the suit land, they did due diligence and confirmed that the suit land belonged and was in exclusive possession of the 3rd Defendant. According to them, the sale and purchase of the suit land was properly conducted without any fraud. They allege that the purported sale between the 3rd Defendant and the Plaintiff was backdated.

#### **Legal representation:**

[9] The Plaintiff was jointly represented by M/s Kayongo Jackson & Co. Advocates and M/s Jingo, Ssempijja & Co. Advocates. The 1st, 2nd - 9th Defendants was represented M/s Donge & Co. Advocates. The 3rd Defendant was represented by M/s Kaweesi &Partnes Advocates.

#### **Legal submissions:**

[10] Counsel for the 1st, 2nd - 9th Defendants filed written submissions in which they raised a preliminary objection that this suit is barred in law, incompetent, incurably defective, premature and brought before the wrong court. Counsel argued that the procedure for a party aggrieved by the decision or orders of a Magistrate's court sitting in original jurisdiction is laid down in section 220 of the Magistrate's Courts Act Cap 19, which is, an appeal to the High Court. According to Counsel, a party aggrieved by the decision of a Magistrate's Court may also seek review or revision of the decision under sections 82 and 83 of the Civil procedure Act Cap 282. Counsel argued that in the instant case, the Plaintiff is seeking recovery of land which was sold to the 2nd Defendant upon a court order. He should have come to court by way of appeal, review or revision.

[11] Counsel for the 1st, 2nd - 9th Defendants further submitted that the procedure which was adopted by the Plaintiff in filing this suit contravenes section 34 of the Civil Procedure Act which provides that all questions arising between parties to a suit or their representatives relating to the execution, discharge, or satisfaction of decrees must be determined by the Court executing the decree and not by a separate suit*.* In support of their submission, counsel relied on the case of *Sinba (K) LTD & 4 others versus Uganda Broadcasting Corporation SCCA No. 3 of 2014* and *Middle North Tobacco Cooperative Union Ltd and another versus Dr. David Wilfred Ocan and 2 others HCCS No. 062 of 2022.*

[12] In reply to the preliminary objection, Counsel for the Plaintiff submitted that there was no decree in Civil Suit No. 027 of 2014 which gave rise to the issuance of the warrant of attachment of the suit land but rather an order dismissing the suit with costs.

[13] In addition, counsel submitted that the Plaintiff was not a party in Civil Suit No. 027 of 2014. He was therefore not barred from filing the instant suit which challenges the legality of the sale of the suit land based on fraud.

[14] Counsel further argued that under Order 22 rule 88 of the Civil Procedure Rules, the Plaintiff is entitled to file the instant suit so that this court can investigate and determine his rights on the suit land which was sold pursuant to a warrant of attachment issued by the trial Court.

#### **Analysis and determination of the Court:**

[15] Before I proceed to determine the merit of the preliminary objection, I wish to comment on two legal issues raised by counsel for the Plaintiff. First, that there was no decree in Civil Suit No. 027 of 2014 which gave rise to the warrant of attachment, instead there was an order dismissing the suit with costs. As I understand, counsel seems to suggest that given that the execution was against an order and not a decree, the provisions of section 34 of the Civil Procedure Act is not applicable. In my view, Section 28 of the Civil Procedure Act is very clear. It provides that the provisions of the Act relating to the execution of decrees apply to the execution of orders. It therefore follows that all questions arising between the parties to the suit in which orders or decrees are passed must be determined by the court executing the orders or decrees and not by a separate suit. I accordingly find the argument by counsel for the Plaintiff, in that regard, without any legal merit.

[16] The second legal issue raised was that under Order 22 rule 88 of the Civil Procedure Rules, the Plaintiff is entitled to file the instant suit so that this Court can investigate and determine his rights on the suit land. Rule 88 which Counsel for the Plaintiff made reference to is only applicable where any party, not being a judgment debtor against whom an order is made under rule 85 or 86 of Order 22 of the Civil Procedure Rules, may institute a suit to establish the right under which he or she claims possession of property. The orders referred to in rule 85 is for detention of the judgment debtor or some other person at the instigation of the judgment debtor who resists or obstructs execution and the orders referred to in rule 86 is against a person who is not a judgment debtor but who resist or obstructs execution. In the instant case there is no evidence that the Plaintiff resisted execution. There is also no evidence that any orders were made against Plaintiff under Order 22 rules 85 or 86 of the Civil Procedure Rules. Order 22 rule 88 of the Civil Procedure Rules was therefore wrongly cited by Counsel for the Plaintiff.

[17] I shall now proceed to determine the merits of the preliminary objection which in my view raises two legal issues. First whether the matters being raised in this suit should have been presented and determined by the Magistrates Court which was executing the decree and not by filing a separate suit before this court. Secondly, whether the Plaintiff, if dissatisfied with the decision of the Court executing the decree, should have applied for review before the Magistrate's Court or appealed to this Court or applied to this Court for revision of the decision of the Magistrate's Court.

[18] On the 1st issue, whether the matters being raised in this suit should have been raised before the trial court, the general position of the law is that all questions arising between parties to a suit or their representatives relating to the execution, discharge, or satisfaction of decrees is to be determined by the Court executing the decree and not by a separate suit*.* Section 34(1) of the *Civil Procedure Act Cap, 282* thus provides that:

*(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge, or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit.*

[19] In the *Francis Nansio Micah versus Nuwa Walakira SCCA No. 24 of 1994* Tsekooko J. S. C, underscored the intention of Section 35 (which is now section 34) of the Civil Procedure Act. He stated that:

*"In my view the procedure under section 35 definitely saves time and expenses; a party does not need to open a fresh suit with all the attendant consequences for purposes of enforcing execution or querying the manner of execution. Witnesses to be called if any are for purposes of explaining points related to execution proceedings."*

[20] The wording of Section 34(1) of the Civil Procedure Rules, however, only covers the parties to the suit or their representatives. Therefore, where the questions neither relate to the execution, discharge, or satisfaction of the decree between parties to the suit nor their representatives, Section 34 of the Civil Procedure Act is not applicable. A separate suit has to be filed.

[21] In the instant case, the Plaintiff was neither a party nor a representative of any of the parties in Civil Suit No. 027 of 2014. Section 34 of the Civil Procedure Act is therefore not applicable to him.

[22] Counsel for the 1st, 2nd - 9th Defendants made reference to the case of *Middle North Tobacco Cooperative Union Ltd* and the case of *Sinba (K) LTD* cited above. I have found those cases inapplicable to the facts in the instant case.

[23] In the former case, Middle North Tobacco Cooperative Union Ltd was the 1st Plaintiff before the trial Court. The Court found that the 2nd Plaintiff, that is, the Board of Governors of Elishaddai Nursery and Mixed Day and Boarding Primary School was a representative of the 1st Plaintiff for the purposes of Section 34 of the Civil Procedure Act. That was because, as a tenant, the 2nd Plaintiff derived its right of occupancy of the land in question from the 1st Plaintiff. The 1st and 2nd Defendants in that case had purchased the land from the bailiff. They were all regarded as representatives of the judgment debtor in accordance with the decision of the Supreme Court in *Hannington Waswa and another versus Maria Onyango Ochola and 3 others SCCA No. 22 of 1993* where Platt J. S. C who wrote the lead judgment with which the other justices agreed, held that:

"*It is now established that the wording of Section 35 covering "the parties to the suit or their representatives" would cover auction purchasers, for the reason that the title was passed to the purchaser from the judgment debtor."*

[23] The Court also found that the bailiff, who was the 3rd Defendant, was a representative of the judgment creditor in the case before the trial Court on account of the decision of the Supreme Court in *Francis Nansio Micah versus Nuwa Walakira SCCA No. 24 of 1994* where Tsekooko J. S. C who wrote the lead judgment with which the other justices agreed held that:

*"It seems to me that though the Court bailiff is certainly an officer of the court, he is certainly an agent of the judgement creditor at least for purposes of excess attachment."*

[24] In the latter case, the Haba Group (2nd Appellant) and Deo & Sons Properties Ltd (2nd Appellant) were the judgment creditors. Uganda Broadcasting Corporation (the respondent) was the judgment debtor. The 1st and 2nd Appellants assigned the judgment/ decree to Sinba (K) Ltd (1st Appellant) who applied for execution. The execution was conducted by Twinamatsiko Gordon (4th Appellant) and the Margaret Muhangi Mugisha (5th Appellant) was the auction purchaser. In my view, the appellants and the respondent in that case were all parties or representatives of the parties before the court which was executing the decree and as such the matter was properly dealt with under section 34 of the Civil procedure Act.

[25] On the second issue, whether the Plaintiff should have appealed or applied for review or revision, instead of filing this suit, Counsel for the 1st, 2nd - 9th Defendants did not cite any law to the effect that the failure to take those options bars the Plaintiff from filing this suit. While I agree that the Plaintiff, who was not a party to the suit before the trial Court, could have appeal against the decision on the ground that the decision adversely affected him (see: *East African Insurance Company Ltd versus Manubhai Madhivani and others CACA No. 12 of 2001*) or could have sought review of the decision as a person who suffered a legal grievance by the decision (see: In *Re Nakivubo Chemist (U) Ltd (1979) HCB 12*) or could have sought for revision before this court, I do not agree that failure to choose those options renders this suit barred under any provisions of the law. In any case, the claim being made by the Plaintiff, that he is the owner of the suit land and that the Defendants fraudulently deprived him of his land, are new matters which were not before the trial Magistrate. Those issues cannot be properly raised on appeal or handed through review or revision.

[26] In the end, I find no merit in the preliminary objection. The same is accordingly overruled.

I so order.

Dated and delivered by email this 27th day of March, 2025

Phillip Odoki

**Judge.**