Sonko and Another v Patel and Another (Civil Appeal No. 74 of 1952) [1955] EACA 23 (1 January 1955)

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Barclay Nihill (President), Sir Newnham Worley (Vice-President) and Sir ENOCH JENKINS, Justice of Appeal

## (1) PETRO SONKO, (2) BUMALI SEMINDE, Appellants v.

## (1) H. A. D. PATEL, (2) DAMIANO KIWANUKA, Respondents

## Civil Appeal No. 74 of 1952

(Appeal from the decision of H. M. High Court of Uganda, Low, J.)

Garnishee proceedings-Judgment entered instead of order nisi being made absolute—Appeal from decree upon such judgment—Estoppel—Civil Procedure Rules, Orders XX, rules 1 and 4 and XXXIX rules 3 and 17 and Appendix D form $16$ —Necessary parties to the appeal proceedings.

A garnishee order nisi having issued, the Judge, on the return day, treating the issue as one of fact, concluded his judgment: "There must be judgment for H. A. D. Patel, the judgment-creditor for Sh. 2,000 against these garnishees with costs".

Treating the judgment as a judgment in a suit, the appellants extracted a decree which had been approved in draft by the judgment-creditor's advocates.

The order *nisi* had been made against five named respondents or garnishees, of whom the appellants were two, trading as N. A. T. Co.

The respondents contended (*inter alia*) (1) that all proper parties to the appeal had not been joined, because, whereas there were five garnishees affected, only two of them had appealed, and that if the remaining three were not joined as appellants they should be joined as respondents, and (2) that if on a trial under Order XX, rule 4, there is a finding that a debt exists, it is so expressed in an order, viz. an order absolute, which order is only appealable with leave, which in the instant case was not obtained. In respect of the before-mentioned first contention the Rules of Court are silent upon the point.

Order XX, rule 4 aforesaid reads: "If the garnishee disputes his liability. the court, instead of making an order that execution be levied, may order that any issue or question necessary for determining his indebtedness be tried and determined in the manner in which an issue or question in a suit is tried or determined".

Order XXXIX, rules 3 and 17, of the said rules provide:

"3. Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the High Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be.

17. Where it appears to the court at the hearing that any person who was a party to the suit in the court from whose decree the appeal is preferred, but who has not been made a party to the appeal, is interested in the result of the appeal, the court may adjourn the hearing to a future day to be fixed by the court and direct that such person be made a respondent".

*Held* $(24-4-53)$ .—(1) Instead of his judgment, the Judge should, upon finding the garnishees to be indebted to the judgment-debtor, have made absolute the decree nisi.

(2) There was no need for the remaining three garnishees to be joined in the appeal either as appellants or respondents.

(3) The judgment-creditor's advocate having approved the form of decree he was estopped from questioning the form or substance thereof.

Preliminary objections dismissed.

M. L. Patel and H. D. Choudhry for appellants.

C. B. Patel and A. G. Mehta for Respondent No. 1.

Respondent No. 2 present, unrepresented.

JUDGMENT (read by WORLEY, Vice-President).—This appeal arises out of garnishee proceedings in the High Court of Uganda taken under Order XX of the Civil Procedure Rules (Vol. VI of the Laws of Uganda, 1951, p. 720). The record settled for this appeal is a very confused one, and perhaps reflects the confusion which appears to have surrounded the proceedings in the court below.

The material facts are that the first respondent (the judgment-creditor) obtained a decree in Civil Case No. 101/49 against the second respondent (the judgment-debtor) for the sum of Sh. 2,652/66 with interest and costs.<br>After some abortive efforts, the judgment-creditor issued a summons returnable on 20th December, 1950, ostensibly under Order XX, rule 1, addressed to five named respondents or garnishees (of whom the present appellants are two), trading as the Native African Trading Co. The summons asked for the attachment of all debts owing or accruing due to the defendant in the suit (sci. the judgment-debtor) from this trading company. The first observation we have to make is that this summons contravened the provisions of Order XX, rule 1, prescribing the issue of an order nisi "which shall be in the Form No. 16 in Appendix $D$ to the Rules".

What happened on the return day is not clear except that a Judge in chambers made what is in effect an order nisi attaching debts due from the trading company and ordering the garnishees to appear and show cause. This was apparently done ex parte and the orders were made returnable on 17th January, 1951.

It does not appear from the record whether this order *nisi* ever issued, but on the 17th one garnishee appeared by an advocate and disputed the debt. The Judge then ordered trial of the issue as to the liability or indebtedness of the garnishees (Order XX, rule 4). He also directed service on the remaining partners of the firm. After further delay service was eventually effected and the trial of the issue began on 26th April, 1951, and was concluded on 17th December in the same year. The trial was not conducted as a separate suit but as proceedings in the original suit. The learned Judge who tried the issue treated it as a question of fact, namely whether or not the judgment-debtor had lent Sh. 2,000 to the partnership; and being satisfied that it had been so established he concluded his judgment thus: $-$

"There must be judgment for H. A. D. Patel, the judgment-creditor, for Sh. 2,000 against these garnishees with costs."

With respect, we must say that the use of this loose and inaccurate phraseology was most unfortunate and has probably contributed to subsequent confusion and argument. What the learned Judge should have done, on the issue before him, was to find that the garnishees were indebted to the judgment-debtor in the sum of Sh. 2,000 and then to make absolute the rule nisi attaching the debt. There is no form prescribed for a garnishee order absolute but there is an approved printed form (Civil Form No. 17) for this purpose which is in effect an order for payment with authority to execute on default. It appears, however, that the "judgment" has never been implemented by any such order.

The present appellants, being two of the partners in the trading company and garnishees, were minded to appeal against the result of the trial of the issue. Their advocates accordingly, treating the judgment as a judgment in a suit,<br>drafted a document which is headed "Decree in original suit" and purports to order and decree that "the garnishees do pay to the 'plaintiff' the sum of Sh. 2,000 with costs". It does not authorize execution.

This draft was duly submitted to and approved by the advocates for the judgment-creditor and the fair copy eventually sealed and signed by a Judge as of the date 17th December, 1951. There is nothing in the record to show when it was actually signed.

The memorandum of appeal was lodged on 10th March, 1952, and has annexed to it copies of the "judgment" and "decree".

When the appeal came on for hearing on 21st April, 1953, the advocates for the first respondent took a number of obections to its competence. Only two of these require serious consideration and were argued as preliminary objections.

The first of these was that all proper parties to the appeal have not been joined in that, whereas there are five garnishees affected, only two of them have appealed. It was argued that if the remaining three were not willing to be joined as appellants they should have been added as respondents. No authority was cited for this proposition which in our view is misconceived. The rules of this Court are silent on this point but we think the principle applicable is expressed in Order XXXIX, rules 3 and 17, of the Uganda Civil Procedure Rules, which are as follows: -

"3. Where there are more plaintiffs or more defendants than one in a suit. and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the High Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be."

"17. Where it appears to the court at the hearing that any person who was a party to the suit in the court from whose decree the appeal is preferred, but who has not been made a party to the appeal, is interested in the result of the appeal, the court may adjourn the hearing to a future day to be fixed by the court and direct that such person be made a respondent."

In the instant case the interests of the five garnishees are identical so there can be no question of prejudice to those three who have not appealed.

The second objection was to the form of the "decree". It was said that if the trial of the issue under Order XX, rule 4, results in a finding that the debt exists, this is expressed in an order, that is to say, the order nisi is made absolute and that such an order is appealable only with leave, which was not obtained in this case. If the trial of the issue led to a finding that the debt did not exist then, presumably, the result would be an order discharging the rule *nisi*. The appellant's advocates, on the other hand, argued that the trial of the issue results in a judgment to the effect that the debt exists or does not exist and that any order is merely consequential thereon: therefore, they say, a decree is the proper mode of formal expression of that judgment. They prayed in aid the words of Order XX, rule 4, which prescribe that the issue of indebtedness "be tried and

determined in the manner in which an issue or question in a suit is tried or determined".

This is an interesting, if technical, point on which no authority was cited and on which we find it unnecessary to express an opinion, for we hold that the first respondent is estopped by his conduct from now questioning the form or substance of the decree which is annexed to the memorandum of appeal. It was, as we have said, submitted to his advocate and approved without any reservation. That was an express representation that he accepted the decree as being correct in form and substance and the appellants have acted upon that representation by grounding their appeal upon the decree. In these circumstances it would be unjust to allow the first respondent to approbate and reprobate and this objection also fails. We will proceed to hear the appeal upon its merits. The appellants will have the costs incurred in respect of the hearing on the 21st April in any event.