Non-Performing Assets Recovery Trust v Kidega Lakititus (CIVIL APPEALS NOs. 899, 901,902, 903, 904 and 905 Of 1998) [1998] UGHC 37 (24 May 1998)

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA

CIVIL APPEALS Nos. 899, 901,902, 903, 904 AND 1905 OF 1998 (Arising from various suits in the Lira District Registry)

NON- PERFORMING ASSETS RECOVERY TRUST ....................................

- VERSUS -

KIDEGA LAKITITUS..................................

#### BEFORE: THE HONOURABLE Mr. JUSTICE I. O. MALINGA

# **RULING**

By five notices of motion dated $31^{st}$ August 1998 and filed on $2^{nd}$ September 1998 the Appellant applied for orders in each case that:

(a) the Order of the District Registrar at Lira dated 25<sup>th</sup> August, 1998 directing that the Appellant pays to the Respondent, a court bailiff, his taxed costs arising out of a stay of execution of decrees arising out of various suits be set aside; and

(b) that the appeal be allowed with costs.

The notices of motion were brought under Order 46 rr. 4, 6 and 8 and Order 48 r.1 of the Civil Procedure Rules as Civil Appeals Nos. 899, 901, 902, 903, 904 and 905 of 1998.

The background of these appeals, which were consolidated, is as follows. The Respondent is the successor to the Uganda Commercial Bank in respect of some loans transferred to the Non-Performing Assets Recovery Trust (NPART) under the Non-Performing Assets Recovery Trust Statute, 1994 (Statute No. 11 of 1994). The Uganda Commercial Bank (U. C. B.) had sued various loan defaulters in the High Court at Lira and obtained execution warrants against them which warrants had been given to the Respondent, Kidega Lakititus (Trading as Adoc Court Bailiff and Auctioneer). The Respondent allegedly levied execution in respect of the said decrees against the various judgement debtors. The bank then allegedly stopped him from realising the proceeds of the execution from the judgement – debtors. The Respondent drew his bills of costs in respect of the execution of each of those decrees. The District Registrar at Lira subsequently duly taxed the those bills of costs. In the meantime the debtor's loans from the U. C. B.

were categorised as non-performing assets and transferred to the NPART (the Appellant herein) under the provisions of the NPART Statute, 1994. Subsequently the Respondent sought to recover his costs from the Appellant. Upon the Respondent's applications the District Registrar Lira issued notices to Appellant to show cause why execution should not issue against or in $\leq$ respect of the Appellant. On 12<sup>th</sup> June 1998 in compliance with such notices Mr. Godfrey Rwalinda, Learned Counsel for the Appellant appeared before the District Registrar. The notices were consolidated and the parties duly addressed the learned District Registrar on whether or not execution should issue against the Appellant in respect of the Respondent's foos. On $26^{\text{th}}$ June 16 1998 the learned District Registrar ruled that no cause had been shown and ordered that execution should issue against the Appollant.

The Appellant being dissatisfied with the orders of the learned District Registrar extracted the orders which were dated 28<sup>th</sup> August 1998 and filed the present appeals on $2^{nd}$ September 1998. The original suits were the $11$ following:

| 1. U. C. B. versus. Julius Peter Acwera<br>2. U. C. B. Versus Moses Ocip | H. C. C. S. No. 2 of 1991<br>H. C. C. S No. 3 of 1991 | |------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|----------------------------------------------------------------------------------------------------| | 3. U. C. B. <i>Versus</i> Okae Hunter<br>$T/a$ Okae & Brothers.<br>4. U. C. B. <i>Versus</i> Bongo Ogwang<br>5. U. C. B. Versus Paul Okello Okabo<br>6. U. C. B. Versus General Millers and<br>Chemical Works Ltd. | H. C. C. S No. 4 of 1991<br>H. C. C. S No.13 of 1992<br>H. C. C. S. No. 3 of 1992.<br>H. C. C. S. No.1 of 1992 | | | |

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$\overline{1}$

The grounds of the appeals are not stated in the Notices of motion, but are stated to be set out in the affidavit of Godfrey Rwalinda Esq. attached thereto. That affidavit as far as is relevant stated:

"9. THAT I verily believe the learned District Registrar erred in law and in fact when he held that the Uganda Commercial Bank had directed KIDEGA LAKI to stay execution of the decree in the said suit whereas there was no sworn evidence adduced or on record in proof of such acts by the said Bank or its officials.

THAT I verily believe the learned District Registrar further erred in law and in fact when he held that the alleged acts of the Bank's $10.$ officers amounted to stay of execution of the decree in the said suit.

$2c$

$\mathfrak{I}^\infty$

$\mathcal{I}$

$2\mathcal{L}$

- 11. THAT I verily believe the learned District Registrar erred in law when he held that execution could issue against the Appellant when there was no order entitling the said KIDEGA LAKI to execution. - $12.$ THAT I verily believe the learned District Registrar erred in law when $5$ he failed to hold that in the absence of a suit and $(sic)$ between the Appellant and Kidega Laki (sic) and the absence of a decree in Kidega Lak (sic) favour against the Appellant the said Kidega Lak (sic) had an enforceable claim against the Order of the District Registrar High 10 Court of Uganda at Lira. - $13.$ THAT I swear this Affidavit in support of an application that the order of the District Registrar of the High Court of Lira dated 25<sup>th</sup> August, 1998 arising out of H. C. C. S No. $\ldots \ldots \ldots \ldots$ U. C. B. versus. $\mathbf{B}$ $\mathbf{B}$ $\mathbf{B}$ $\mathbf{B}$ $\mathbf{B}$ $\mathbf{B}$ $\mathbf{B}$ $\mathbf{B}$ $\mathbf{B}$ $\mathbf{B}$ $\mathbf{B}$ $\mathbf{B}$ $\mathbf{B}$ $\mathbf{B}$ $\mathbf{B}$ $\mathbf{B}$ $\mathbf{B}$ $\mathbf{B}$ $\mathbf{B}$ $\mathbf{B}$ $\mathbf{B}$ $\mathbf{B}$ $\mathbf{B}$ $\mathbf{B}$ $\mathbf{$ - THAT what is stated herein is true to the best of my knowledge, $\sqrt{ }$ $14.$ belief and information obtained from perusal of the said Court Order".

The Respondent in reply filed the affidavit of Martin Erone dated 21<sup>st</sup> October, 1998 stating that the date of the orders being challenged is actually $26<sup>th</sup>$ June 1998 and not $26<sup>th</sup>$ August, 1998 as is wrongly dated in the said orders. The Respondents relies on paragraph 7 and 8 of the Appellant's 20 affidavit which stated:

"7 THAT I appeared before the District Registrar of the High Court at Lira, His Worships (sic) Musimbi Musa on the 12<sup>th</sup> June, 1998 on behalf of the Appellant and did contest or oppose the application for execution of issue against the Applicant/Appellant.

"8. THAT on the 26<sup>th</sup> June, 1998 the learned District Registrar ruled that execution should issue against the Appellant in favour of the said Kidega Laki for recovery of Bailiff's fees."

The Learned Counsel for both parties elected to make written submissions which they made. From their submissions several issues arise for the 3 o determination of the Court namely:

1. Whether the appeal was time $-$ barred.

**SALES**

2. If not whether the appeal was properly brought before the Court under O.46 rr. 4, 6 and 8 and 0.48 r.1 of the Civil Procedure Rules.

**4**

- 3. Whether the appeal is competent as the grounds of appeal are not contained in the notice ofmotion. - 4. Whether upon a stay of execution a Court bailiff is entitled to enforce by attachment and sale payment of his taxed fees against the judgement creditor without first obtaining a court decree against the judgement creditor. - 5. Whether the appellant ordered a stay ofthe execution.

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**i**

**1**

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The Respondent's counsel raised the first two issues by way of preliminary objections. Mr. Emoru submitted that the appeals ought to have been brought under 0.44 r.7 which specifically applies to appeals from District Registrar. The appeal then ought to have been brought by way of an endorsement by registrar at the request of any party within 14 days from the making of the orders. Since the orders were made on 26 \* June, 1998 and the appeals were not filed till 2nd September, 1998 Mr. Emoru submitted that they were time barred. It was his submission that s. 80 (2) of the Civil Procedure Act could not apply to these appeals which are governed by a specific law namely 0.44 r.7. Mr. Peter Nkurunziza, Counsel for the Appellant on the other hand argued that the appeals were competent and not time-barred. He relied on s. 80 (2) of the Civil Procedure Act to exclude the period between 26th June, 1998 when the rulings were made and 28th August, 1998 when the orders were signed in computing the time to appeal.

It was common ground that the parties argued before the District Registrar on 12th June, 1998 and the ruling of the District Registrar was given on 26\* June, 1998 in the presence ofthe Counsel for the Appellant. Under 0.18 r. 7 (1) of the Civil Procedure Rules a decree shall bear the date on which judgement was delivered. This also applies to any order, which the Court, 7^- Registrar or district Registrar is required to make - See 0.18 r. 7 (4). Accordingly the learned District Registrar was wrong to date his orders 28th August, 1998 instead of 26th June, 1998.

Once a judgement or ruling is delivered time begins to run from the date of the decision and not the date on which a written copy thereof is furnished. *J.* 6 Time started to run on 26th June, 1998 when the ruling was made and not on 28\* August, 1998 when the order was signed. Kemisa Senya v. M/s Tanmohammed Jaffer Ltd. Civil Appeal No. 6 of 1997 (Unreported); Sheika (<Nahim [1959] E. A. 500; and B. G. Saint v, Kevin Hogan (1953) 20 EACA 81^

It is the duty of an intending appellant to obtain a copy of the order to be appealed against and to take the necessary steps to file the appeal within the prescribed time.

The Appellant was represented in Court on 26<sup>th</sup> June, 1998 when the District Registrar made his ruling. The Appellant has given no satisfactory $\mathsf{S}$ explanation for the delay to extract the orders appealed from. The Appellant cannot rely on s. 80 (2) of the Civil Procedure Act to extend the period. because there was no evidence given of any steps taken by Counsel for the Appellant to obtain the orders. For 63 days nothing was done. That was an inordinate delay. The appeals ought to have been filed within 7 days of $26^{th}$ $\overline{10}$ June, 1998, but were not filed till $2^{nd}$ September, 1998. I therefore find that the appeal are time barred and must be dismissed. This has the effect of disposing of this appeal and therefore it is not necessary for me to deal with the other issues framed.

However before I take leave of this matter, there is one other aspect of these $1s^{-}$ appeals. That is the illegality of orders of the District Registrar which has been brought to the attention of the Court. In the absence of a suit between the Court bailiff and the judgement creditor for the payment of bailiff's taxed costs under Rule 13 (4) of the Court Bailiff's Rules 1981, there was no decree to enforce by way of attachment and sale. The District Registrar $\lambda_0$ was therefore wrong to issue warrants of attachments. I have had the benefit of seeing the original files. This illegality cannot be allowed to stand and under the inherent powers of the court to prevent injustice or abuse of legal process, the said orders of the District Registrar are nullified.

In the result the appeals are dismissed and since they arose from orders $\mathcal{L}$ which were a nullity the costs will not follow the event. Each party shall $\parallel$ bear his own costs. It is so ordered.

**IALINGA** JUDGE.

24<sup>th</sup> May, 1998

$30.$

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA

CIVIL APPEALS Nos. 899, 901, 902, 903, 904 AND 905 OF 1998 [Arising from various suits in the Lira District Registry]

# NON-PERFORMING ASSETS RECOVERY TRUST .................. APPELLANT

#### VERSUS -

#### KIDEGA LAK TITUS ........ ......................................

#### ORDER

These consolidated appeals coming on this day for disposal before the Registrar of High Court His Worship STEPHEN MUSOTA in the presence of VINCENT L'OKUCHA EMORU counsel for the respondent and in the absence of counsel for the appellant,

IT IS ORDERED that:-

$\big\{ \big\}$

- $(1)$ the appeals are time barred and are hereby dismissed; - the orders of the District Registrar issuing warrants of attachment are hereby $(2)$ nullified; and - each party to bear his own costs. $(3)$

$\n *u*al<sub>et 1999</sub>\n$ GIVEN under my hand and the seal of the court on this $\cdot$ ! day of $\dots$

REDISTRAR

BITANGARO & CO. ADVOCATES

DATE:

SIGN:

ORDER EXTRACTED BY: --

RECEIVED : M/S EMORU & CO. ADVOCATES, PLOT 13A PARLIAMENT AVENUE, CARGEN HOUSE, $I^{ST}$ FLOOR, SUITE NO. 10, $P.$ *O. BOX 3155,* KAMPALA.

Plux PARD