Kamulegeya v Twagirayesu (Miscellaneous Appeal 318 of 2024) [2024] UGCommC 113 (4 April 2024)

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# **IN THE HIGH COURT OF UGANDA SITTING AT KAMPALA COMMERCIAL DIVISION**

Reportable Miscellaneous Appeal No. 318 of 2024

In the matter between

**ABDUL LATIF KAMULEGEYA APPELLANT**

**And**

**BLAISE TWAGIRAYESU RESPONDENT**

**Heard: 22 March, 2024.**

**Delivered: 04 April, 2024.**

*Civil Procedure - execution of decrees - an executing court cannot go behind the decree under execution - Orders must be construed in a reasonable manner so as to give effect to the apparent intention of the trial court - Orders arrived at by consent are construed the same way contracts are construed, by words of the contract being given their natural meaning as an expression of the intention of the parties, and anything outside the contract needs to be proven pursuant to the rules of evidence - the kind of agreement that is envisaged under Order 22 rule 12 (2) of The Civil Procedure Rules, is one that concerns postponement of payment of the amount adjudged, or one permitting its payment by instalments, but on such terms as to payment of interest, taking of security, or attachment of the judgment debtor's property as the Court may deem fit - Payment in discharge of a decretal debt is effective only when it is made into Court, to the judgment creditor personally or to a duly authorised agent, on the judgment creditor's behalf - a Judgment Creditor is not bound to select any one of the modes of execution and pursue that particular mode exclusively; being cumulative, none of the modes of execution is in exclusion of the others - recovery by way of arrest and imprisonment of a Judgment Debtor is to be adopted as a measure of last resort, in the absence of any other practical alternative. There has to be an active attitude of refusal to pay, bad faith or malice involved on the part of the Judgment Debtor due to which he evades his liability, which is different from "a simple default to discharge" and "mere indifference to pay."*

*Civil Procedure - Appeals - unless the exercise of discretion is obviously perverse, an appellate court should be slow to set aside discretionary orders of courts below - Courts in Uganda have, as a matter of judicial policy, exercised considerable restraint in intervening in decisions characterised as involving the exercise of a discretion - an appellate court is not to interfere with the exercise of discretion by a court below unless satisfied that in exercising that discretion, the court below misdirected itself in some matter and as a result came to wrong decision, or unless manifest from case as whole, the court below was clearly wrong in exercise of discretion and injustice resulted.*

*Contract - unconscionable bargain - three elements need to be established before the Court can interfere with a contract on the basis of unconscionable bargain, namely: (i) one party must be at a serious disadvantage; (ii) that party has been or would be exploited in some morally culpable manner; and (iii) the resulting transaction is not merely bad or improvident but overreaching and oppressive.*

## **JUDGMENT**

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## **STEPHEN MUBIRU, J.**

Introduction:

- [1] During the month of March, 2017, the appellant executed an agreement of sale of land comprised in Kyadondo Block 223 Plot 5019 at Namugongo, Nalya to the respondent at the price of US \$ 230,000. The respondent thereafter made various payments on different dates totalling US \$ 38,000. It was agreed that the appellant was to surrender to the respondent the certificate of title to the land, to enable the respondent mortgage it in order to raise funds for payment of the outstanding balance. The appellant having failed to honour that obligation, the parties agreed to rescind the contract whereupon the appellant undertook to refund a sum of US \$ 38,000 being the amount that has been paid so far by the respondent. - [2] When the appellant failed to refund the part payment, he had received by the time of that recission, the respondent on 21st December, 2017 filed Civil Suil No. 1023 of 2017 against the appellant seeking recovery of the US \$ 38,000, an additional shs. 1,000,000/= general damages for breach of contract, interest and costs. The appellant filed a defence thereto on 4th January, 2018. On 15th February, 2018 the parties entered into a consent judgment wherein the appellant undertook to pay

the respondent the sum of US \$ 38,000 in three equal monthly instalments (hence in full by 15th May, 2018) at the rate of 6% per month upon default on any instalment, on the outstanding balance, as well as the costs of the suit in the sum of shs. 5,000,000/=

[3] Subsequently, when the applicant defaulted yet again and was arrested in execution of the decree, the parties signed a consent order dated 13th July, 2018 under EMA No. 1034 of 2018 for the payment of the decretal sum, and as security for the payment, the appellant deposited two certificates of title. The consent order states as follows;

The matter coming up for mention this 13th day of July, 2018 before the Deputy Registrar, his Worship Deo Nizeyimana, the parties agreed to settle the case as follows;

- 1. The judgment debtor hereto deposits title to property described as Kyadondo Block 183 Plot 1960 land at Busozi Bulongo to the judgment creditor to hold as security for payment of decretal sum of US \$ 36,580 (Thirty Thousand Five Hundred and Eighty United States Dolars) and UGX 1,000,000 (one Million Uganda shillings) and interest accrued on it. - 2. The judgment debtor agrees to give additional security of property located on Kyadondo Block 218 Plot 982 Land at Najera to guarantee the total payment of the said decretal sum. - 3. The judgement debtor shall pay the decretal sum within 14 days from the date of execution of this judgment, in the event of the failure to pay the decretal sum the judgment creditor is at liberty to sell any of the two properties described above and refund the balance if any, to the judgment debtor. - [4] Pursuant to that consent order, the appellant made multiple cash deposits onto the respondent's bank account which total US \$ 28,000 (leaving a balance of US \$ 8,580 plus shs. 1,000,000/=). Believing that he had made his final deposit on the decretal sum and thus paid in full, the appellant on or about 30th July 2018 sought to redeem the title. He was instead informed by the then respondent's lawyers that due to the delayed payment, the decretal amount had attracted interest in the sum

of US \$ 8000 (which was at the time equivalent to shs. 23,000,000/=), and as such he could only redeem the tittle deed he had deposited as security in court after paying the said interest.

- [5] The then respondent's advocates, nevertheless later calculated the accrued interest at shs. 11,000,000/= which the appellant deposited with the then respondent's lawyers, M/s Kagoro Associated advocates on 2nd August, 2018 and the appellant was informed that he had discharged the debt in full. Counsel for both parties thereafter appeared before the Court, retrieved the title deed to Kyadondo Block 218 Plot 982 Land at Najjera, and handed it back to the appellant. - [6] The respondent being dissatisfied with the conduct of his advocates, changed counsel and sought to revive execution of the decree by way of arrest and imprisonment of the appellant, for recovery of the outstanding principal sum and accrued interest. Appearing before the Assistant Registrar on 27th January, 2023 the applicant contended that he had paid the debt in full, but produced payment slips for a sum of US \$ 28,000 only which he had deposited with Stanbic Bank Garden City Branch from March 2018 to July 2018, and an acknowledgment receipt dated 2nd August, 2018 in the sum of shs. 11,000,000/= signed by a one Mr. Bernard Olok of M/s Kagoro Associated advocates. The additional payment receipts he adduced were too old and faint having been kept for a period of over five years. Being dissatisfied with the proffered proof, in a ruling delivered on 1st February, 2023 the Assistant Registrar directed that execution proceeds since the applicant had not presented satisfactory proof of having paid in full. - [7] The respondent once again revived the execution process and on 31st January 2024 a warrant was issued for the appellant's arrest, whereupon he was on 14th February, 2024 arrested and committed to civil prison. On 1st March, 2024 the appellant having furnished to the satisfaction of the court, by way of the title deed to Busiro Block 347 Plot 213 at Nalumunye, Wakiso District for his appearance

when required by the court, he was discharged from civil imprisonment pending this appeal.

## The grounds of appeal.

- [8] Being dissatisfied with the decision reviving execution of the decree, the appellant appealed to this court on the following grounds, namely; - 1. The Learned Assistant Registrar erred in law and in fact when he relied on a defective affidavit of service of court process and granted an arrest warrant to the respondent and or his agents. - 2. The Learned Assistant Registrar erred in law and in fact when he issued a warrant of arrest in the existence of on unreturned warrant of attachment in execution issued in respect of EMA No.208 of 2022 to the respondent to attach the appellant's property. - 3. The Learned Assistant Registrar erred in law and in fact when he disregarded the cash deposit slips presented by the appellant thereby committing him to civil prison. - 4. The Learned Assistant Registrar erred in law and in fact when he issued an arrest warrant to the respondent without court process having been served on the appellant. - 5. The Learned Assistant Registrar erred in law and in fact when he failed to evaluate all the evidence on record and granted an arrest warrant in the existence of an unreturned warrant of attachment in execution thus occasioning a miscarriage of justice. - [9] It is the appellant's prayer that in the interest of justice, equity and fairness the arrest warrant and his committal to civil prison be set aside; - the Orders of execution issued by the Learned Deputy Registrars on 2nd November 2023 and 31st January, 2024 respectively be set aside; the Order committing the appellant to civil prison issued by the Learned Deputy Registrar on the 14th February 2024 be set aside; the Order of

attachment of the appellant's property comprised in Kyadondo Block 195 Plot 5265 situate at Kyanja, measuring approximately 0.0840 Hectares, be set aside.

#### The respondent's affidavit in reply;

- [10] In the respondent's affidavit in reply, it is contended that all payments of the decretal sum were to be made directly onto his bank account and not to his lawyers or any other person. Apart from the sum of US \$ 28,000 paid after execution of the consent order of 13th July, 2018, all the other payments claimed to have been made by the appellant occurred after the consent decree of 15th February, 2018, but before the consent order in execution of 13th July, 2018 by which date the outstanding amount was US \$ 36,580 and shs. 1,000,000/= which the appellant undertook to pay within 14 days from the date of its signing. A "notice to show cause" was issued on 22nd May 2018, and was duly served on the appellant's advocates on 1st June, 2018. The appellant deposited in court two duplicate certificates of title as security; land comprised in Kyadondo Block 218 Plot 982 Land at Najera and Kyadondo Block 183 Plot 1960 land at Busozi Bulongo to guarantee payment of the decretal sum. The interest in the consent was duly proposed by the appellant at his own free will well aware that the respondent had borrowed the monies from a financial institution and was being charged a rate of interest higher than 6%. On 28th July, 2018 the appellant paid US \$ 28,000 into the respondent's bank account. - [11] In order to recover the outstanding balance of US \$ 8,580 plus shs. 1,000,000/= a warrant for the attachment and sale of the land comprised in Kyadondo Block 183 Plot 1960 land at Busozi Bulongo was issued but the court file thereafter went missing and subsequently the respondent discovered that the title deeds had been mysteriously released to the appellant. The balance of US \$ 8,650 has never been paid up to date. In accordance with the first consent, that amount still accrues interest at the rate of 6% pet month up to date. The appellant's claim that the money was paid fully is entirely false. If any payment was made as alleged, it was

never received by the respondent as the agreed mode of payment was only onto the respondent's bank account. The appellant has repeatedly frustrated the recovery of the decretal sum by applying highly calculated evasiveness like changing ownership of land after attachment, lodging caveats on attached land, changing deed prints of any attached property of his, concealing ownership in names of other parties including his wives. The appellant has always had an opportunity to challenge the execution from the year 2018 up to date and therefore his allegation of unconscionable interest is way out of time and is delayed and considering it now will occasion an injustice. The arrangement between Mr. Benard Olok who was the respondent's lawyer then and the appellant and his team, was clear connivance to frustrate the respondent's right to be fully paid in time and was never informed of what they discussed.

## Submissions of counsel for the appellant;

[12] Counsel for the appellant submitted that previous Counsel for the appellant did not produce the evidence of payment of the shs. 11,000,000/= as being final. The consent order dated 13th July, 2018 does not refer to any interest. The sum of US \$ 36,580 was mutually arrived at before the Deputy Registrar after a deduction from the part payment of the decree. The interest agreed upon in the consent decree does not apply to the consent order. The outstanding amount now is US \$ 11,454 and shs. 4,20,000,000/= which is still recoverable.

#### Submissions of Counsel for the respondent;

[13] Counsel for the respondent submitted that for the transaction, the respondent used borrowed money at an interest rate of 15% per month. It was the basis upon which the parties considered 6% per month which clearly the consent judgment debtor agreed to. The judgment debtor failed to pay and the matter was forwarded to the Execution Division where a settlement was reached with the necessary deductions of the part payment which gave a new amount of US \$ 36,580. The judgment debtor agreed to pay within 14 days and only a payment of US \$ 28,000 was made and he had deposited security of property which was also returned to him under unknown circumstances. The 6% per month remained operative. The appellant has hitherto frustrated recovery of the outstanding sum by attachment and sale of his property and therefore the respondent had to resort to arrest and imprisonment.

## The decision.

- [14] There is no inherent, inferred or assumed right of appeal (see *Mohamed Kalisa v. Gladys Nyangire Karumu and two others, S. C. Civil Reference No. 139 of 2013*). It is according to Order 50 Rule 8 of *The Civil Procedure Rules* that any person aggrieved by any order of a Registrar may appeal from the order to the High Court. The appeal is by motion on notice. Section 79 (1) (b) of *The Civil Procedure Act* provides that appeals from orders of Registrars should be filed within seven days of the date of the order of a Registrar appealed against, but the appellate court may for good cause admit an appeal though the period of limitation prescribed by that section has elapsed. - [15] The appeal in the instant case is from two orders of two Assistant Registrars of this court, allowing further execution of the consent decree by way of committing the appellant to civil imprisonment, which orders were delivered on 2nd November 2023 and 31st January, 2024 respectively. The time allowed for appeal expired on 2nd November, 2023 and 7th February, 2024 respectively. This appeal was filed on 21st February, 2024, which is three months and twenty days respectively, out of time, without the appellant having sought enlargement of time. An appeal filed out of time without first obtaining leave to enlarge time is bad in law (see *In the Matter of Rev. Fr. Obadia Kabande and five others, [1972] HCB 100; In the matter of Rev. Fr. D. A. Atim and five others [1973] HCB 100*; *Komunda P. and two others v. A. Katuramu [1994-95] HCB 85; Mayanja Grace v. Yusufu Luboyera [1977] HCB 133* and *Sewan Sigh Bahra v. Halling Manzoor [1998-2000] HCB 37*). For this reason alone, the appeal would be dismissed, but considering the nature of the issues raised and with a view to bring finality to the prolonged execution, it is better decided on the merits.

[16] The appeal raises grounds in two broad categories. The first category comprises those grounds that are related to the choice of the mode of execution and the procedure related thereto. This comprises grounds (1) and (4) on the effectiveness of service before issuance of the warrant of arrest, and grounds (2) and (5) regarding the issuance of a warrant of arrest before a return was filed in respect of a warrant of attachment of immoveable property that had been issued earlier. In the second category is ground (3) related to the appellant's available proof of discharge of the debt in full. The court will consider the two broad categories in the form of issues;

## i. Whether the appellant furnished sufficient proof of having discharged the debt in full.

[17] It was the appellant's argument that the rate of interest contained in the consent judgment of 15th February, 2018 is unconscionable. It is trite that a consent judgment cannot be set aside on account of one of the parties having a change of heart. That can only be done if there are mistakes as to fact or law, or fraud committed by the other party, or any mistake made at the time when the Consent Judgment was entered. in *Hirani v. Kassam [1952] EA 131,* followed in *Attorney General and another v. James Mark Kamoga and others, S. C. Civil Appeal No. 8 of 2004*, it was held, inter alia, that;

> *Prima facie*, any order made in the presence and with the consent of counsel is binding on all the parties to the proceedings or an action, and it cannot be varied or discharged unless obtained by fraud or collusion, or by an agreement contrary to the policy of the court…...or if the consent was given without sufficient material facts, or in general for a reason which would enable a court to set aside an agreement.... It is a well settled principle therefore that a consent decree has to be upheld unless vitiated by a reason that would enable Court to set aside an agreement such as fraud, Mistake,

Misapprehension or Contravention of Court policy. The principle is on the premise that a consent decree is passed on terms of a new contract between the parties to the Consent Judgment.

- [18] Similarly, in *Babigumira John and others v. Hoima Council [2001 – 2005] HCB* 116, it was held inter alia that a consent order can be set aside if it was given without sufficient material facts or in misapprehension or in ignorance of material facts or in general for a reason which would enable the court to set aside such an agreement. In *Pavement Civil Works Ltd v. Andrew Kirungi, High Court Misc. Application No. 292 of 2002,* it was held that a consent Judgment and decree cannot be set aside by appeal but rather by a suit, or by an application for a review of the Judgment sought to be set aside. But that the more appropriate mode is by an application for review. The reasons which would enable court to set aside a consent judgment are; - fraud, mistake, misapprehension or contravention of court policy. None of these apply to the instant case. On the other hand, three elements need to be established before the Court can interfere with a contract on the basis of unconscionable bargain, namely: (i) one party must be at a serious disadvantage; (ii) that party has been or would be exploited in some morally culpable manner; and (iii) the resulting transaction is not merely bad or improvident but overreaching and oppressive. None of this has been proved the instant case. - [19] That consent judgment resulted in a consent decree. A decree is a formal and authoritative order issued by Court. Decrees are legally binding and must be followed by the parties involved. Decrees may be used to enforce judgments. An executing court cannot go behind the decree under execution. But that does not mean that it has no duty to find out the true effect of that decree. For construing a decree, the executing Court can and in appropriate cases, it ought to take into consideration the pleadings as well as the proceedings leading up to the decree. - [20] It is common ground that following that decree, the parties executed a consent order in execution proceedings on 13th July, 2018. According to Order 22 rule 12 (2) of *The Civil Procedure Rules*, after the passing of a judgment, the court may,

on the application of the judgment debtor, and with the consent of the decree holder, order that payment of the amount adjudged shall be postponed or shall be made by instalments on such terms as to the payment of interest, the attachment of the property of the judgment debtor, or the taking of security from him or her, or otherwise, as it thinks fit. However, the phraseology of the order at hand raises questions of whether it is such an order as is envisaged under that rule, or one that resulted in an accord and satisfaction. Accord and satisfaction is the settlement of a debt by partial payment.

- [21] The kind of agreement that is envisaged under Order 22 rule 12 (2) of *The Civil Procedure Rules*, is one that concerns postponement of payment of the amount adjudged, or one permitting its payment by instalments, but on such terms as to payment of interest, taking of security, or attachment of the judgment debtor's property as the Court may deem fit. Provided that the decretal liability is left unaltered. the executing court can accept any compromise, not breaching the law, arrived at by the parties with regard to the mode of execution. - [22] On the other hand, for there to be a valid accord and satisfaction of a debt or claim, there must be: (1) a disputed claim; (2) a tender by the debtor of a sum less than the amount of the claim, and (3) an acceptance of the tender by the creditor. In the instant case, the parties reached an agreement "to settle the case," "within 14 days from the date of execution of this judgment, on condition that the appellant deposited one title deed "to the judgment creditor to hold as security for payment," and another title deed to the Court as "additional security......to guarantee the total payment of the said decretal sum," "and interest accrued on it." It is the expression "settle the case" that introduces ambiguity into the order since there was already a judgment and there was no longer any "case for settlement" before the Court, but rather enforcement proceedings. There are instances where a court order contains mistakes, ambiguities, or omissions which the court must correct or clarify to the litigants, and this is one such instance. The purpose of such clarification or correction is to ensure that the proper and true intended purpose of the order is

given effect to and to ensure that the order reflects the true intention of the presiding Assistant Registrar.

- [23] Court orders must always be examined in the context of the reasons for judgment. Where there is a possible ambiguity in a court order, the first logical step in interpreting such an order is to establish objectively what was meant. In the process of interpreting the order, the court's reasons for such order must be read as a whole, in order to ascertain its intention. If there is uncertainty in the meaning, the external circumstances surrounding the court's granting the order must be investigated. The appellate Court may have regard to the decision of the court below, in order to understand and interpret the order. If this meaning is the same as the subjective intention of the Court below, then there is no requirement to invoke the "slip rule" under section 99 of *The Civil Procedure Act*. If the terms of the order fail to express the intention of the parties and the court, the slip rule is applicable to correct an accident or omission. However, the correction must simply be an amendment to assist in the implementation of the original intention rather than a route by which the court can have second thoughts about the order. - [24] Orders must be construed in a reasonable manner so as to give effect to the apparent intention of the trial court. When interpreting a Court order, the starting point is to determine the manifest purpose of the order. The process of determining the purpose of the order involves a unitary exercise of considering the language used in light of ordinary rules of grammar, the context and purpose of the order and can only be achieved by reading and considering the whole judgment. A postjudgment order will ordinarily be interpreted in the context of a subsequent enforcement proceeding, the determinative factor being the intention of the court, as gathered from all parts of the judgment itself. Although an unambiguous order must be enforced as drafted, an ambiguous one may be read in conjunction with the entire record and construed in accordance therewith. The record of the case captures the intention at the time the order was entered.

- [26] In this case, the court finds that on the face of the order, the intention was clear so there is no need to engage the slip rule. The order was made after the arrest of the appellant in execution of a decree. It was preceded by establishing the quantum of the outstanding debt. Ther are no new terns introduced, save for the period of payment and the security for guaranteeing compliance. What was intended by that order was to accord the appellant a conditional extension of time within which to pay off the outstanding debt, but not to accept a lesser sum as payment in full. It did not constitute an accord and satisfaction. The decretal liability was left unaltered. - [27] In any event, in order to become binding as a satisfaction the accord, the agreement must be wholly executed. The rule in *Pinnel's Case [1602] 5 Co. Rep. 117a* (*Pinnel's case*) is that part payment of a liability does not stop a creditor pursuing the balance of the liability in the absence of other forms of agreed part payment such as "a horse, hawk or robe," etc. The consent order of 13th July, 2018 therefore did not result in accord and satisfaction and neither did it supplant the consent decree. Interest continued to accrue on the decretal sum at the rate of 6% per month from that date, until payment in full. - [28] Orders arrived at by consent are construed the same way contracts are construed, by words of the contract being given their natural meaning as an expression of the intention of the parties, and anything outside the contract needs to be proven pursuant to the rules of evidence. By virtue of the consent order of 13th July, 2018 the appellant had an outstanding debt of US \$ 36,580 and shs. 1,000,000/= The respondent acknowledged that since then, the appellant had deposited only US \$ 28,000 onto his bank account, leaving a balance of US \$ 8,580 plus shs. 1,000,000/= and accrued interest. By virtue of section 57 of *The Evidence Act* to the effect that facts admitted need not be proved except that the court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions, and there being no reason to require proof by other means, I find that the appellant need not prove the sums admitted by the respondent. It is a settled

rule that once the creditor makes out a *prima facie* case of an outstanding debt in his favour, the evidential burden shifts to the debtor to controvert the creditor's *prima facie* case.

- [29] A party is not ordinarily required to prove a negative allegation which he has made, for the simple reason that it is a negative. Therefore, when the existence of a debt is fully established by the evidence followed by the assertion that it has not been paid in full or at all, the burden of proving that it has been extinguished by payment devolves upon the debtor who offers such defence to the claim of the creditor. The debtor has the evidential burden of showing with legal certainty that the obligation has been discharged by payment. Payment is what discharges the debt. It is an affirmative fact possessing the qualities of time and place. The debtor is expected to be in possession of all the affirmative, tangible facts appropriate and necessary to the inception of a practicable and intelligible proof process, hence the debtor bears the burden of proof. - [30] In the instant case, the appellant proffered no credible evidence of having discharged the outstanding debt beyond the amount acknowledged by the respondent, save for the payment of shs. 11,000,000/= to a one Mr. Bernard Olok of M/s Kagoro Associated advocates, on 2nd August, 2018 who never remitted it to the respondent. Payment in discharge of a decretal debt is effective only when it is made into Court, to the judgment creditor personally or to a duly authorised agent, on the judgment creditor's behalf. A payment does not discharge a debt unless the discharge was intended by both the debtor and the creditor. Therefore, payment to an unauthorised intermediary or agent is not effective discharge of the debt. An unauthorised act, even if within the agent's apparent authority, will not bind the principal regarding obligations owed by a third party, when the third party has notice of the fact that the agent's act is not authorised. - [31] It is settled law that interest accrues on a decree until payment in full or until otherwise ordered by the Court. Within the meaning of Order 22 rule 1 of *The Civil*

*Procedure Rules,* payment may be made to the judgment creditor personally or to a duly authorized agent, on the judgment creditor's behalf. Payment may be made to the Judgment Creditor personally or to an agent of the Judgment Creditor, provided that such agent has authority to receive payment. A non-appealing judgment creditor can stop interest on the decretal sum by paying the sum to the judgment creditor directly or by making an unconditional tender of the funds to the Court in satisfaction of the judgment (see *Vooys v. Turner, 49 S. W.3d 318*). Otherwise, the judgment debtor is to pay interest of the decretal amount at the rate declared by Court in the decree from the date of judgment until full and final payment.

- [32] The essence of interest is that it is a payment which becomes due because the creditor has not had his money at the due date. The purpose of awarding the interest is to fully compensate a plaintiff for the loss of the use of funds to which he or she was legally entitled, not to penalize a defendant for wrongdoing. It may be regarded either as representing the profit he might have made if he had had the use of the money, or, conversely, the loss he suffered because he had not that use. The general idea is that he is entitled to compensation for the deprivation (see *Riches v. Westminster Bank Ltd [1947] 1 All ER 469 at p 472; Jefford and another v. Gee [1970] 1 All ER 1202* and *Tate & Lyle Food and Distribution Ltd v. Greater London Council and another [1981] 3 All ER 716 at p 722*). The basis of an award of interest is that the defendant has kept the plaintiff out of his money; and the defendant has had the use of it himself. So, the appellant ought to compensate the respondent accordingly. - [33] The evidence before the Assistant Registrar was that M/s Kagoro Associated advocates were not authorised by the respondent to receive payment on his behalf, but rather the appellant was notified that all payments were to be made onto the respondent's bank account, yet the appellant never adduced evidence to the contrary. In conclusion therefore, I find that out of the decretal amount, a balance of US \$ 8,580 plus shs. 1,000,000/= and the accrued interest at the rate

of 6% per month on the outstanding balance is still owing and recoverable from the appellant. The result is that ground three of the appeal fails.

- ii. Whether there were fatal procedural irregularities in the arrest and imprisonment of the appellant as a mode of execution of the decree. - [34] Grounds (1) and (4) on the effectiveness of service before issuance of the warrant of arrest, and grounds (2) and (5) regarding the issuance of a warrant of arrest before a return was filed in respect of a warrant of attachment of immoveable property that had been issued earlier, largely relate to exercise of discretion by a judicial officer during the process of execution of a decree or order. The general rules governing appeals from discretional order of Registrars seem well settled. Discretion is the faculty of determining in accordance with the circumstances what seems just, fair, right, equitable and reasonable. "Discretion" cases involve either the management of the trial and the pre-trial process; or where the principle of law governing the case makes many factors relevant, and requires the decision-maker to weigh and balance them. Just as the factors for consideration could never be absolute, there could never be a gauge to measure the accuracy of such decisions. Unless the exercise of discretion is obviously perverse, an appellate court should be slow to set aside discretionary orders of courts below. - [35] Because these assessments call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right, identification of error in the Registrar's exercise of discretion is the basis upon which the court will uphold the appeal. It would be wrong to determine the parties' rights by reference to a mere preference for a different result over that favoured by the Registrar at first instance, in the absence of error on his or her part. If the Registrar acted upon a wrong principle, or allowed extraneous or irrelevant matters to guide or affect him or her, if he or she mistook the facts, if he or she did not take into account some material consideration, or where it not evident how he or she reached the result embodied in his or her order, or where upon the facts the order is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the Registrar thus his or her determination should be reviewed.

- [36] Courts in Uganda have, as a matter of judicial policy, exercised considerable restraint in intervening in decisions characterised as involving the exercise of a discretion (see *Banco Arabe Espanol v. Bank of Uganda, S. C. Civil Appeal No. 8 of 1998*). Where the decision challenged involves the exercise of a discretion, broadly described to include states of satisfaction and value judgments, the appellant must identify either specific error of fact or law or inferred error (e.g. where the decision is unreasonable or clearly unjust). The appellate court will not interfere with the exercise of discretion unless there has been a failure to exercise discretion, or failure to take into account a material consideration, or an error in principle. It should not interfere with the exercise of discretion unless it is satisfied that the Registrar in exercising his or her discretion misdirected himself or herself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the Registrar has been clearly wrong in the exercise of his discretion and that as a result there has been injustice (see *Mbogo and another v. Shah [1968] 1 EA 93*). - [37] It is trite that an appellate court is not to interfere with the exercise of discretion by a court below unless satisfied that in exercising that discretion, the court below misdirected itself in some matter and as a result came to wrong decision, or unless manifest from case as whole, the court below was clearly wrong in exercise of discretion and injustice resulted (see *National Insurance Corporation v. Mugenyi and Company Advocates [1987] HCB 28; Wasswa J. Hannington and another v. Ochola Maria Onyango and three Others [1992-93] HCB 103; Devji v. Jinabhai (1934) 1 EACA 89; Mbogo and another v. Shah [1968' E. A. 93; H. K. Shah and another v. Osman Allu (1974) 14 EACA 45; Patel v. R. Gottifried (1963) 20 EACA, 81;* and *Haji Nadin Matovu v. Ben Kiwanuka, S. C. Civil Application No. 12 of 1991*). An appellate Court should not interfere with the exercise of the discretion of

a court below merely because of a difference of opinion between it and the court below as to the proper order to make. There must be shown to be an unjudicial exercise of discretion at which no court could reasonably arrive whereby injustice has been done to the party complaining.

- [38] The appellate court will intervene where the court below acted un-judicially or on wrong principles; where there has been an error in principle (see *Sheikh Jama v. Dubat Farah [1959] 1 EA 789; Hussein Janmohamed and Sons v. Twentsche Overseas Trading Co Ltd [1967] 1 EA 287; Banco Arabe Espanol v. Bank of Uganda, S. C. Civil Appeal No. 8 of 1998* and *Thomas James Arthur v. Nyeri Electricity Undertaking [1961] 1 EA 492*). As such, the Registrar is entitled to deference in the absence of an error in law or principle, a palpable and overriding error of fact, or unless the decision is so clearly wrong as to amount to an injustice. Generally, a Judge will only interfere with exercise of discretion by a Registrar where the latter has incorrectly applied a legal principle or the decision is so clearly wrong that it amounts to an injustice. Although there is a presumption in favour of judicial discretion being rightly exercised, an appellate court may look at the facts to ascertain if discretion has been rightly exercised. - [39] Therefore, allowing an appeal from a discretionary order is predicated on proof of: (i) "specific error," i.e. an error of law (including acting upon a wrong principle), a mistake as to the facts, relying upon an irrelevant consideration or ignoring a relevant consideration, or (exceptionally) giving inappropriate weight to such considerations (relevancy grounds); and (ii) "inferred error," i.e. where, in the absence of identification of specific error, the decision is regarded as unreasonable or clearly unjust. Where inferred error is found, this will have been brought about by some unidentifiable specific error. The eleven grounds of appeal can be addressed within the scope of three issues which the Court will now proceed to consider.

- [40] Sections 40 to 50 of *The Civil procedure Act*, as well as Order 22 rule 8 (2) (j) of *The Civil Procedure Rules* require a Judgment Creditor seeking issuance of a warrant in execution of a decree or order to specify in the application the mode in which the assistance of the court is required, whether; (i) by the delivery of any property specifically decreed; (ii) by the attachment and sale, or by the sale without attachment, of any property; (iii) by the arrest and detention in prison of any person; (iv) by the appointment of a receiver; or (v) otherwise, as the nature of the relief granted may require. The Judgment Creditor's options are cumulative and alternative. A Judgment Creditor is therefore not bound to select any one of the modes of execution and pursue that particular mode exclusively. A Judgment Creditor is at liberty to employ one or all of the modes of execution to enforce payment, and in no particular order. - [41] Being cumulative, none of the modes of execution is in exclusion of the others. The executing Court is under no duty to dictate the modes of execution. No act of the Judgment Creditor may be construed as an election to proceed under any one of the modes of execution existing at law or in equity or by statute or otherwise, to the exclusion of any other, save that in line with current practice (see *Geoffrey Opio v. Felix Obote and two others, H. C. Miscellaneous Civil Application No. 81 of 2018*), recovery by way of arrest and imprisonment of a Judgment Debtor is to be adopted as a measure of last resort, in the absence of any other practical alternative. - [42] The courts have been careful in applying this measure and they only apply it when it appears that the Judgment Debtor is trying to make a mockery of the system of justice. The Court has to mandatorily undertake an enquiry as to whether the Judgment Debtor has the means to make the payment of the sum or not. If he does not, he cannot be arrested or detained. There has to be an active attitude of refusal to pay, bad faith or malice involved on the part of the Judgment Debtor due to which he evades his liability, which is different from "a simple default to discharge" and "mere indifference to pay." The court though may, in its discretion,

refuse execution at the same time, against the person and property of the judgment debtor (see Order 22 rule 18 of *The Civil Procedure Rules*).

- [43] Certain factors will be considered before resort to arrest and imprisonment as a mode of execution, such as; (i) the judgment debtor being an obstructionist and using delaying tactics; (ii) the judgment debtor conspiring to leave the jurisdiction of the Court; (iii) where the judgment debtor has dishonestly transferred, hidden, or removed any property in full or part in order not to pay the debt; (iv) the judgment debtor has the means to pay a full or significant part of the debt but has neglected or refused to pay that part; (v) the judgment debtor had a position of trust to pay such debt but avoided such payment. There was evidence before the Assistant Registrar that the appellant had repeatedly engaged in obstructionist behaviour and resorted to the use of delaying tactics, as well as dishonest transfer, hiding, or removal of his property, including that hitherto deposited in Court, in order not to pay the outstanding balance of the debt. Resort to the appellant's arrest and imprisonment as a mode of execution of the decree, therefore, cannot be faulted. - [44] A return of a warrant issued in execution of a decree is essentially a report submitted by a Court Bailiff to the Court that issued the warrant. It serves as an official record of the execution of the warrant, documenting the actions taken, property collected or taken into possession, and any arrests made. It is therefore one of the mechanisms by which the Court supervises the execution of its warrants. For example, with regard to warrants for attachment and sale of property, Rule 16 (10) (a) of *The Judicature (Court Bailiffs) Rules, 2022* requires that a warrant of attachment should be served upon the debtor and a return filed in court before the sale is ordered. It is an offence for a Court Bailiff to fail to file a return in Court within the prescribed period (see Rule 27 (1) (m) thereof). The failure of a Court Bailiff though to make a timely return of an executed warrant or to submit an inventory of the property taken into his or her possession under the warrant, does not render the execution of the order unreasonable. The timely return of a warrant is a ministerial duty that does not affect the validity of the execution, absent

prejudice to the judgment debtor. That a return has not been filed before another warrant is issued is not a fatal irregularity.

- [45] The ordinary procedure is that on an application filed by the decree holder for the arrest of the Judgment debtor, the court has to first issue a notice to the person concerned. This satisfies the requirements of natural justice. The person concerned should be given a chance and sufficient opportunity to show cause as to why he or she should not be arrested or detained in prison. It is only when the person does not respond to this, or when he or she responds does not give a proper justification, that the Court can go ahead with issuing an arrest warrant. By virtue of Order 22 rule 19 (1) (a) of *The Civil Procedure Rules*, it is mandatory to issue such notice where execution is sought more than one year after the date of the decree or order sought to be executed, provided that the court can issue an arrest warrant without first issuing notice, if the Judgment Debtor is likely to abscond Court's jurisdiction. - [46] In the instant case, it was more than a year following the date of the consent decree dated 15th February, 2018 and the consent order in execution dated 13th July, 2018, that the process of execution was renewed. Indeed, a notice to show cause was issued and served upon the appellant and his advocates respectively, and a return of service to that effect filed in Court. The appellant was thus given a chance and sufficient opportunity to show cause as to why he should not be arrested or detained in prison, before the warrant was issued, but he opted not to respond. Upon his arrest, the Court found that he had the means to pay but there was an element of bad faith involved in his refusal or failure to pay, yet proceeding against his property had proven ineffective.

## Order:

[47] The appellant's arrest and imprisonment in execution therefore cannot be faulted on this ground either. Consequently, the four grounds of appeal fail. All in all, the appeal lacks merit and it is hereby dismissed with costs to the respondent.

## Stephen Mubiru Judge.

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Appearances

- For the appellant : M/s Muwema and Co. Advocates. - For the respondent : M/s Kamulegeya Advocates & Solicitors.