“A successful litigant against the Government can only enforce judgment through a certificate of order, not attachment or execution under Section 38 CPA.” Reaffirms the Court of Appeal of Uganda
- Waboga David
- 5 minutes ago
- 5 min read
Facts
The appellant, Iraqi Fund for External Development (representing the Government of Iraq), entered into two loan agreements with the Government of Uganda. In 2000, the appellant filed High Court Civil Suit No. 1391 of 2000, claiming US$10,964,354 disbursed under these agreements. The suit was heard, and on July 19, 2002, judgment was entered in favor of the appellant for US$6,432,809.63, plus 2.5% interest per annum from the date of judgment until full payment, general damages, and costs.
The respondent (Attorney General, representing the Government of Uganda) did not appeal the judgment. The appellant obtained two certificates of order against the government: one on October 22, 2002, and another on November 30, 2016. Despite service, the respondent failed to satisfy the decree, leading to a cumulative decretal sum of US$8,711,096.37.
In 2017, the appellant filed Miscellaneous Cause No. 14 of 2017 seeking an order of mandamus to compel payment. During these proceedings, the respondent introduced a letter dated June 8, 2017, from the Permanent Mission of Iraq to the United Nations, stating that the Iraqi government had not appointed any agent to recover the loan. The High Court, relying on this post-judgment letter, ruled on October 25, 2020, that the certificates were "issued in error" and quashed them, dismissing the mandamus application.
Dissatisfied, the appellant appealed to the Court of Appeal on four grounds, primarily challenging the High Court's jurisdiction to quash the certificates based on extraneous post-judgment evidence.
Issues
The appeal revolved around one central question:
Whether the learned trial judge erred in law and fact by quashing valid certificates of order and dismissing the mandamus application based on post-judgment correspondence.
Sub-issues included:
Whether the High Court was functus officio when it revisited the merits of the concluded suit.
Whether the trial judge could rely on extraneous post-judgment evidence.
Whether the trial court could grant remedies not sought by any party.
Whether there was any illegality or doubt in the appellant’s right to payment.
The Court also considered broader principles: the enforcement of judgments against the government under the Government Proceedings Act, the prerequisites for issuing mandamus, and the applicability of Section 34 of the Civil Procedure Act in government execution proceedings.
Submissions
Appellant’s Submissions (Mr. Ebert Byenkya & Mr. Anthony Bazira, Byenkya, Kihika & Company Advocates)
The Appellant submitted that the High Court exceeded its jurisdiction by quashing the certificates, as it lacked power to do so absent an appeal or review. Suspension under Section 19(3) of the Government Proceedings Act is only available pending an appeal, which did not exist here.
The Appellant contended that the court was functus officio and could not revisit the merits of the original suit, such as the appellant's identity or representation, based on post-judgment evidence from 2017 (15 years after judgment). New evidence cannot alter a final judgment without leave on appeal.
The remedies granted (quashing) were not pleaded or sought by the respondent, violating procedural fairness.
Lastly, the 2017 letter was extraneous, irrelevant, and inadmissible in execution proceedings, as it post-dated the judgment and was not subjected to trial scrutiny.
Respondent’s Submissions (Mr. Twinomugisha Mugisha, Senior State Attorney)
The High Court, as the executing court, had jurisdiction under Section 34(3) of the Civil Procedure Act to determine the appellant's representative capacity and quash the certificates due to doubts about authority.
Mandamus cannot enforce doubtful rights (citing Afro-Motors Ltd & Hon. Patrick Okumu-Ringa v Minister of Finance & Attorney General [2008] UGHC 33). The 2017 letter raised an "illegality" that the court was duty-bound to address.
The court was justified under Section 98 of the Civil Procedure Act and the Judicature (Judicial Review) Rules, 2009, to quash the certificates to prevent sanctioning questionable authority.
Legal Representation
For the Appellant, Mr. Ebert Byenkya & Mr. Anthony Bazira (Byenkya, Kihika & Co. Advocates)
For the Respondent, Mr. Twinomugisha Mugisha, Senior State Attorney (Attorney General’s Chambers)
Court’s Findings and Reasoning
(a) Mandamus against Government
The Court reaffirmed that:
“A successful litigant against Government can only enforce judgment through a certificate of order, not attachment or execution under Section 38 CPA.”
The High Court erred in quashing the certificates absent any challenge to the original judgment.
"A Court order remains valid until it is set aside by way of appeal, review or any other remedial procedures prescribed by the law".
The post-judgment letter could not "upend the decision of Court until that decision is set aside on review or appeal".
On Functus Officio and Reopening Merits
The High Court was functus officio after the 2002 judgment and could not revisit issues like the appellant's capacity or representation.
"Once the trial court had issued judgment and decree, the same court was now functus officio and could not delve into the parties' capacity and similar issues that constitute the merits of the dispute".
The court found merit in Ground 2, noting the issue of authority was raised but abandoned during the original trial, and partial payments were made in 2005 and 2007.
On Unsought Remedies
The quashing was improper as it was not pleaded. While suspension is possible under Section 19(3) of the Government Proceedings Act pending appeal, no such proceedings existed.
"The Judge misdirected herself on facts and law surrounding suspension of the certificate of order".
On Extraneous Evidence
The 2017 letter was inadmissible in execution proceedings.
"The letter is alien to the suit and the decision issued in the suit. It was extraneous evidence that did not constitute evidence in the suit. It was introduced after the fact (post-judgment) and... could not be subjected to trial scrutiny".
It raised suspicions but was not evidence of illegality sufficient to undo the judgment.
On Section 34 of the Civil Procedure Act
Inapplicable to government executions, which are governed by Part IV of the Government Proceedings Act. Even if applicable, the evidence was insufficient to question the appellant's representatives .
On Mandamus Prerequisites
All elements were met: clear right, corresponding duty, no doubt, and no adequate alternative remedy (citing Shah v Attorney General [1970] EA 543; Goodman Agencies Ltd & 3 Others v Attorney General & Another [2012] UGCommC 178; Sino Africa Medicines and Health Limited's case [2022] UGCommC 135).
"The rights of the appellant were therefore clear and not in doubt. The duty of the respondent to satisfy the said decree was also not in doubt"
The court criticized the High Court's reliance on the letter:
"With this clarification... it is hard to consider that this application has been brought by the Iraq Fund of the Government of Iraq... In my view, I find that they [certificates] were issued in error and for this they must be quashed," deeming this a misdirection.
The elements for mandamus were all satisfied:
A clear right vested in the appellant (a final judgment).
A corresponding duty on the respondent (to pay).
No alternative remedy.
No doubt as to liability.
“The trial Judge strayed into reopening a concluded case… She was blind-sided by extraneous evidence.”
Holding
The Court of Appeal unanimously allowed the appeal on all grounds.
Orders:
The High Court ruling and orders in Misc. Cause No. 14 of 2017 were set aside.
A Writ of Mandamus was issued compelling the Attorney General to pay the sums due under the certificates of order arising from HCCS No. 1391 of 2000.
The Appellant was awarded costs in both the High Court and the Court of Appeal.
“Grounds 1, 2, 3 and 4 of the appeal are hereby allowed. The ruling and orders of the High Court are set aside.”
Key Takeaways
Final Judgments are Binding
A court cannot revisit its own final orders without an appeal or review; doing so violates the functus officio doctrine.
Post-Judgment Evidence Is Inadmissible
New evidence arising after a final judgment cannot be used to undermine that judgment.
Mandamus as the Only Remedy
Against the Government, enforcement is through a certificate of order and mandamus, not attachment or execution.
Section 34 CPA Inapplicable to Government Execution
Enforcement against Government is strictly governed by the Government Proceedings Act.
Respect for Court Orders
The government’s refusal to honour certificates undermines judicial authority; courts must enforce compliance.
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