THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
(COMMERCIAL COURT DIVISION)
HCT - 00 - CC - MA - 565- 2010
STANBIC BANK UGANDA LTD :::::::::::::::::::::::::::::::::::::::::::: APPLICANT
NEW MAKERERE KOBIL STATION LTD ::::::::::::::::::::::::::::: RESPONDENT
Civil procedure – execution – attachment – release from attachment
Civil procedure – attachment – whether attachment can issue before judgment
R U L I N G:
The Respondent in reply states that the said bus was found in the hands of the Respondent and was attached over 9 months ago but the Applicant never sought to bring objectors proceedings in respect of the bus until now. It is the case for the Respondent that given the passage of time, involving inordinate delay the Applicants are estopped by their conduct to pursue the matter. The said bus had been sold by Alliaz Pharmacy Ltd. to Rev. Bikangiso without encumbrance and that now the Respondent have a lien on the said bus for non payment of fuel.
Counsel for the Applicant submitted that the bus was not available for sale. He noted that a junior officer at the Applicant bank had taken the wrong procedure to write to the court about the Applicant’s opposition to the attachment instead of briefing their lawyers to file a formal application in court.
Counsel for the Respondent submitted that the Applicants had exhibited inordinate delay in placing this application. He submitted that he who comes in equity must come with clean hands. In this regard, I was referred to the case of
This is the same possession I took in a related application involving the same bus in Rev. Ezra Bikangiso V New Makerere Kobil Station M. A. 10 of 2010.
In that application (and I see no reason to depart from that position), I found that a lessee, without special authority to the contrary cannot sell what is owned by a lessor. I also found that the memorandum of understanding between Alliaz Pharmacy Ltd and Rev. Ezra Bikangiso (annexture ‘A’ to Ms. Grace Mugabi’s affidavit in reply) that the said bus was without an encumbrace to be a falsehood.
There is the issue of delay by the Applicant in making this application. Counsel for the Respondent referred me to the case ofLawrence Muwanga (supra) on this matter. I am afraid I am unable to get assistance from that case as it relates to the non payment of court fees. To my mind, the delay was explained, it was a procedural matter even though the Applicant bank has to take great care to avoid situations such as this.
As to the submission of the existence of a lien over the bus for non payment of fuel, there could be a point there. However, in such a situation, a lien would depend upon possession by the Respondent (definition of “lien” inOsborn’s Concise Law Dictornary 6th Edition P. 204). In this case, there is no lien as such but rather an attachment before judgment by Order of the court.
That attachment on the authorities above is not safe and I therefore release the bus UAK 948T from attachment.
Given the background to this application and the equities involved, I find that it is just that each party bears its own costs.
Ruling read and signed in open court in the presence of;
- Mr. John Fisher Kanyemibwa for the Applicant
John Ochepa Arutu