Mbowa & Another v Lint Marketing Board (Civil Suit 496 of 1990) [1993] UGHC 55 (16 February 1993)

Full Case Text

## THE REFUELIC OF UGARDA

## IN THE HIGH COURT OF UGARDA AT KARPALA

## CIVIL SUIT RO.496 OF 1990

NOAH NBCWA & Another. :::::::::::::::::::::::::::::::::::: RUSPONDENT

## VDRSUS

LINT MARKETING BOARD DISCOURSES STREETS STREETS STREETS DAY TO $\mathcal{L} = \{ \mathcal{L} \mid \mathcal{L} \in \mathcal{L} \mid \mathcal{L} \}$ $\mathit{LPP}\texttt{ELL}\texttt{LHTS}$

ESFORE: The Honourable Mrs. Justice N. Kireju RULING.

When the Notice of Notion filed by the appellants/defendants under Or. 46 rule & of Civil Procedure Rules and section 101 of Civil Procedure Act came up for hearing. Counsel for the respondents/plaintiffs raised preliminary points. The appeal is against the orders of the Deputy R gistrars, one made in May, 1992 and the second one made on $20/1/1993$ .

The brief background of this suit is that on 27/12/1991 Justice Ouma delivered judgement in favour of the plaintiff in action for wrong $\mathbf{\hat{r}}\mathbf{u}l$ dismissal and ordered the defendant to pay terminal benefits to the plaintiff which were listed in his judgement, however there were no actual figures stated except those computed by counsel for the 2nd plaintiff later. The respondents claim that they sent the draft decree to councel for the appellant but he did not sign it. Before the warrant of execution could be Carried out an interim injuction order was issued by the deputy registrar restraining the bailiff from attaching the defendant/appellant's property. Counsel for the second plaintiff successfully applied under Or. 37 r.4 and the interim order staying execution was discharged by Justice Ntabgoba P. J. on 7/19/92.

On 21/10/92 money amounting to $\frac{1}{25,616,78}$ was paid into court by the defendant's counsel mending the hearing of the partition.

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application to stay execution. Tl ..• -q.piication for st •/ ox execution : s struct out by this court on 25/11/9 whereupon counsel for the plaintiff demanded for the money which was paid into court and he received it on 8/12/92. another warrant of attachment in respect of the- 1st.plaintiff was issued by Deputy Registrar un 20/1/93 the- amount involved is .t, 42,521,209/= i i'Lu i.u fend ant/«ppeIlant has now appealed against the above said orders made by Deputy Registrars.

'file first preliminary point raited b; counsel for the respondent is th.- t the issues raised in the Notice of Motion wore. dealt with by Justice Ntabg'oba's ruling of 7/10/92. Counsel submitted that counsel for the applicant had argued <bofo.ro> the Registrar th:.t the decree which was signed did not contain any figures and was contesting -those figures under the decree\* Secondly he was contesting the export© taxation of the Registrar on the ground that they had not been served with hearing notice. Counsel submitted that basing en those two grounds the Registrar granted an interim injnetion to stop attachment. Counsel made an application under Or. 37 r.4 to set aside the injunction and gave reasons why the. taxation proceeded! exparte and he also defended the decree. The injunction was discharged by the judge and by so doing counsel contends that the decision.of the Registrar to attach the property that were .assessed plus costs was upheld. Counsel submitted that the matter was res judicata, and cannot bo entertained by this court.

-he second preliminary point was that this application would be of no consequence as tho plaintiff has already received his money, that the court has nothing to set aside/\* Counsel submitted that the only remedy was to appeal against the rufing of Justice Ntabgoba. He prayed that the application be dismissed with costs.

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Mr. Bukasa in rejily submitted th.-.t, the matter w'ich before Justice htabgoba P. J. was in respect of ai. injunct!--n gr -nted by the Registrar which was discharged by the Principal Judge in so far as it was staying execution when there is c.t procedure for staying execution. Counsel submitted that ti . decision of the Principal Judge was in respect of the procedure fur grant of an injunction and did not go into the merits •/ the- award of special and pecuniary damages. Counsel contended that there were new issues being raised in this application -,\vhich needed final determination of this court. The is .ucs ?re those which have, nut been determined to the satisfaction o'. •••ho applicants and therefore he contended the plea of res judic- ta is misconceived. Counsel referred me to the case of Korach end vs. Mohamed 1919 -21 E^LR 64 where it was held that issu..a which have not been determined•on merit although a case has been determined on a preliminary point cannot be affected by the principle of res judicata. Miss Mulyagonja s cond counsel for the appellant also submitted that, the appellants wore net appealing against the Principal Judge's ruling but against the decision of the Registrars which is completely a separate decision

On the second preliminary point Mr. Mukasa submitted that this court was a court of justice and is empowered to correct any procedural^oversights made by the Civil Registry and tnc ^Registrar. Counsel referred to the case of George Senton*go ys»* Uganda Transport Corporation 1973 HCB 203 where it was hu2-.l chat there is a procedural oversight by Registry the court would be empowered, to correct the error under Or. 47 r.7 of Civil Procedure Rules. Counsel submitted that the removal of tht amount deposited in court was a procedural error and the court after hearing the merits of the application against the rem-val

of th? mcr?y can make an order to that effect\* Counsel submitt Lii-.r thv dipvsitcd in court '■•.s security for all plaintiffs. lie ar<uci th..i c^urt should not sanction the inju^t enrichment of one ui the plaintiffs without' hearing from the defendant as this wcu.' '. amount to a miscarriage of justice. Counsel referred th-? *c:>:■■ : r.i* Enterprises 1-td. vs . . Uganda Breweries,ECCJ,^62/1991 where the Principal Judge,Justice Ntabgoba held that whore\* it is • trial 1. issue as to the\* amount payable arising from a judgment vf cv-urt as to whit sum is payable to the pl'intiff, the execution should be stayed and the order of the Registrar set aside- until the issues is finally resolved by court under t?.. right procedure. Counsel submitted that the preliminary objection should be overruled as it is aimed at defrauding the defendant. Counsel submitted that the figures submitt .d by counsel lor the plaintiff were not verified and the 1st plaintiff is willing to accept a lesser sum.

After going through the submission by counsel, 1 am now ready to make my comments on the preliminary points. On the first point, 4 I have read the ruling of Justice Ntabgoba citc-d and I hove come to the same conclusion as counsel for the appellant ^hat the ruling was in respect of an application to set aside an interim injunction issued by the . Registrar. '^he rulin . did not address the grounds for appealing against the decision of tno Registrar's raised in this application. One of decisions of the deputy Registrar appealed from was made on 20/1/93 so it cannot be said that Justice Ntabgoba ruled on it on , 7/10/92 before it was even made.

The conclusion of Justice Ntabgoba's ruling was as follows

''There is nothing on record either by way of affidavit

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or by an allress by compal for the espirate to show that notice under order 37 r.3 # s over corved to the applicant direct or through his lawyers. It appears to me that the injunction who granted extempore and without any formal application. In these circumstances, that injunction is lischurged with costs to the discant".

I have therefore found that the rading of the Princh land IS entirely on the temperary injunction and did not in $Mg^{\mu\nu}$ threse the artters in the present explication. The first reliming point is therefore overalud.

The second preliminary point was that the warrant of attachment itsuad in favour of the 2nd plaintiff has been executed and therefore there is mathing to set aside. I am of the via the t this is a matter to to addressed when considering the main application as it poss to the merits of the application. If after he ring the application the court finds that there is nothing to set aside then an appropriate order will be same, the court is aware that it cannot make an order in vair. This is a point which should be considered when the application is heard. I therefore find the second preliminary point to be premature and it is therefore overruled.

In conclusion the preliminary points are overruled and this a, lic tion will proceed to full hearing.

$M. KIZJU$

$\begin{array}{l} M\textbf{.} \quad \text{KIREJU} \\ J\textbf{U} \quad D\textbf{G} \quad E \end{array}$ $16/3/93$

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JUDGI. $16/2/93$

Mr. Mukasa - for the appellant/defendant Mr. Mibirigo - for the 1st and 2nd respondent/plaintiff Mr. Oburu - Court clerk. Ruling read before the above $1 \nu$ .