Africa-Press – Uganda. The Civil Division of the High Court has ordered a bailiff to pay a litigant Shs520m in compensation and damages for wrongly and illegally attaching property that exceeded what the court ordered.
In a judgment that could change how bailiffs and executioners conduct themselves, Justice Musa Ssekaana, the head of the High Court’s Civil Division, has ordered that on top of arresting Mr Fredrick Byatukoreire, the bailiff, he should pay Engeye Bakery Limited Shs400m for unlawfully attached property, Shs100m punitive damages to the judgment debtor, and Shs20m decretal sum to judgment creditor.
“An order to arrest the first respondent—Fredrick Byatukoreire T/A shrew solutions Ltd—be issued and he should be prosecuted for theft or conversion or any other related offences forthwith,” Justice Ssekaana ordered.
Engeye claims
The standoff started when Engeye Bakery Limited directors failed to pay Engano Millers Shs21m as ordered by the High Court. In response, Engano Millers secured a court order and dispatched Mr Byatukoreire, who duly stormed the premises of Engeye Bakery, and took away property as part of the process of execution.
However, in the process of execution, Byatukoreire is said to have taken away items that were not provided in the warrant of attachment the court had issued. This prompted Engeye Bakery to file a case. It claimed that the property Byatukoreire took on behalf of Engano that was not part of the warrant is worth Shs400m.
Engeye’s lawyers also stated that Byatukoreire did not execute the warrant as directed by law because the execution was high-handed and arbitrary, culminating in the loss of their client’s property. In a bid to show that they are coming with clean hands, Engeye’s lawyers said all efforts to pay Engano’s decretal sum of Shs20m got frustrated when the milling company instead filed a suit to recover Shs40m without proof, a fact which they referred to as bad faith, deceitful, dishonest and crookedness.
A decretal sum is the total amount payable, including the cost of suit, legal fees, interest, the principal amount, any recovery charges, as well as any arbitration fees.
Citing the 1995 case of Catherine Nakkazi vs Kirunda, Engeye’s lawyers said the execution by Byatukoreire wasn’t under the law. This, they proceeded to aver, was because the Engeye directors weren’t on site when the execution was being done to avoid allegations of misconduct like theft of property.
Engano response
Engano’s lawyers, in response, held that Engeye’s grievance was Byatukoreire’s conduct, who had attached items that had not been listed in the warrant. They further said Rules 16 (3) and 24 (1) of the Judicature (Court Bailiffs) address such issues but that Engeye had never moved the court to review the value of the items.
The net result of this, the lawyers argued, was the absence of a valuation report upon which an inference of undervaluation can be drawn. They concluded that Engeye’s case had no merit.
Verdict
In analysing the case, Justice Ssekaana acknowledged that Engeye had brought evidence to prove that indeed the property attached by Byatukoreire was of higher value than what was stated in the warrant. It was also not in doubt, the judge noted, that the bailiff also attached property that hadn’t been mentioned in the warrant. Neither party contested the presentation of the facts.
“It is now settled law that where facts are sworn in an affidavit and they are not denied or rebutted by the opposite party, the presumption is that such facts are accepted,” Justice Ssekaana said, adding, “Since the first respondent (Byatukoreire) failed to respond to the facts and evidence raised against him by the applicant (Engeye) in its affidavit, this amounts to a total admission of facts as against him,” the judge ruled.
Engeye, Justice Ssekaana said, had tendered in evidence that showed that Byatukoreire had sought execution of Shs40m yet the court had only given him Shs21m. “From the above circumstances, I am of the view that the first respondent acted unlawfully and in bad faith when carrying out the execution,” Justice Ssekaana said, adding, “The first respondent (Byatukoreire) vandalised the applicant’s (Engeye) property by uprooting the power cabling and water-cooling system, together with the other machinery and equipment not mentioned in the decree. An execution is irregular when any of the requirements of the rules of court or for the time being have not been complied with.”
Who’s held liable?
Citing the 1995 case of Francis Micah vs Nuwa Walakira, Engeye’s lawyers asked Justice Ssekaana to agree with its submission. This was to the effect that where a bailiff has been wrongful in conduct, he/she is held liable.
Engeye’s lawyers submitted that in that case, the bailiff had been ordered to avail property for inspection and to appear in this application to answer questions between the parties and adamantly refused to heed the directives, the inference is that the claims as put forward by the applicant in its affidavit remain true and uncontroverted.
In response, Engano’s lawyers relied on Rule 46 (2) of the Judicature Act to submit that where Byatukoreire acted injudiciously, then he was solely responsible for his conduct as being the person who was bonded to execute the warrant of court. This blame, Engano’s lawyers argued, cannot be shifted to a decree-holder like their client in the absence of any active participation in the bailiff’s lapse to be judicious.
Engano’s lawyers denied Byatukoreire being their client’s agent, saying he is an officer of the court who is answerable to the court and ought to be sanctioned as per the law prescribed.
Although the general rule that applies is, Justice Ssekaana said, that bailiffs are immune to legal proceedings in execution, if the same (i.e. execution) is unlawful, the bailiff cannot enjoy that immunity.
“A bailiff is, therefore, not entitled to absolute judicial immunity. He/she incurs personal liability only when he or she acts illegally or more than his powers given by the warrant of attachment,” Justice Ssekaana said.
Engano’s fate
Although Engeye wanted the court to hold Engano equally liable for Byatukoreire’s acts, Justice Ssekaana begged to differ. He did this on grounds that a court bailiff in executing a warrant issued by the court is no an agent of the judgment creditor. The court bailiff, he proceeded to note, is the agent of the registrar of the High Court who authorised him/her by a warrant to attach and sell the attached property.
“Unless the judgment creditor during the execution connives or colludes with the bailiff resulting in unlawful execution, then neither the party nor the bailiff can escape liability. This may include circumstances where the judgment creditor identifies the wrong property to the bailiff for attachment and the latter is privy to the truth, the bailiff colludes with the judgment creditor to undervalue for sale the attached property,” Justice Ssekaana said.
From the evidence on the court record, Justice Ssekaana ruled that Engeye had not adduced evidence to show that Engano connived with Byatukoreire to over-attach Engeye’s property or carry out the unlawful execution in the circumstances.
The judge proceeded to rule thus: “It is impossible to overlook the extreme business disruption caused to the applicant (Engeye) by the actions and refusal to comply with the orders of this court to release the property/items in wrongful and illegal attachment. Punitive damages will be awarded against the first respondent. This court has to protect the unsuspecting public or judgment debtors from such criminals who disguise [themselves] as court bailiffs and brokers to stem out the rogue elements.”
Duties of court bailiffs in execution
(1) A court bailiff appointed and licensed under these rules may execute any order of court, arising from—
(a) civil proceedings;
(b) criminal proceedings;
(c) distress for rent proceedings; or
(d) any other proceedings sanctioned by a court or tribunal established by law.
(2) Subject to the Civil Procedure Act, the Civil Procedure Rules and the terms of a licence if any, a court bailiff shall personally execute any order of court assigned to him or her within the boundaries of Uganda.
(3) Where a sale of property that has been attached is envisaged, a court bailiff shall, after attachment, present a valuation report and seek the permission of court before a sale can be effected.
(4) A court bailiff shall ensure that he or she obtains the correct information describing the subject of execution, and shall be entitled to a free copy of the court judgment and decree for execution.
(5) A court bailiff shall comply with all the applicable procedural laws and guidelines relevant to the mode of execution envisaged.
(6) A court bailiff shall, during execution, ensure—
(a) a high level of diligence in handling property and persons in accordance with these rules; and
(b) Care and appropriate custody of attached property and persons arrested pursuant to the orders of the court and the law.
(7) A court bailiff shall, in performing his or her duties under the Act and these rules, have regard to the terms of the order of court and shall be guided by the relevant laws and practice.
(8) A court bailiff shall, in the case of a sale;
(a) Obtain the best price in accordance with the valuation conducted under rule 16;
(b) Incur only expenses relating to the execution; and
(c) Account for all the proceeds of the sale before the court within seven days from the date of the sale.
(9) A court bailiff who abides by the terms of a court order or any applicable law shall be immune from civil or criminal proceedings arising out of such execution acts in accordance with section 46(2) of the Act.
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