THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLANEOUS APPLICATION NO 319 OF 2011
(ARISING OUT OF CIVIL SUIT NO 329 OF 2009)
MARIA ODIDO} .............................................................................. APPLICANT
TEKIE EZRA} ................................................................................ RESPONDENT
BEFORE HONOURABLE MR JUSTICE CHRISTOPHER MADRAMA
Background to the Application:
The applicant brought this application by notice of motion under order 22 rules 55, 56 and 57 and order 52 rules 1 and 2 of the Civil Procedure Rules for orders that the land described as LRV 425 Folio 12 Plot 63 being land at Lukuli attached in execution of a decree passed by this court in favour of the respondent against Mr. Mikael Holm the defendant in the suit is not liable for attachment; and that the court should investigate the objection of the applicant to its attachment; that the above described leasehold be released from the attachment and the costs of the application are provided for.
The grounds of the application are that the applicant is the registered proprietor of land described as Kyadondo block 261 plot No 63 land at Lukuli duly developed with a residential holding where the applicant resides with members of her family; the leasehold described as LRV 425 folio 12 was duly terminated by the applicant through her re-entry thereon; Mr. Mikael Holm the judgment debtor in HCCS NO 329 of 2009 does not reside on the said property and the applicant is neither his agent nor his tenant; the applicant is aggrieved by the order of attachment in Civil Suit No 329 of 2009 and finally that it is in the interest of justice that the attachment of the suit property is set aside.
The application is supported by the affidavit of Maria Odido, the applicant which confirms the grounds of the application. The facts disclosed therein are that the applicant is the registered proprietor of land comprised in Mailo title of Kyadondo block 261 plot No 63 situated at Lukuli where she has been registered thereon on the 6th of April 1999 under instrument number KLA203446.
At that time the applicant became the registered proprietor of the land she was also registered as lessee of the lease created out of the Mailo title in her capacity as the administrator of the estate of her late husband Alphonse Odido. On 26 September 2007 the applicant rented the property as the Mailo holder to Mr. Mikael Holm the defendant. The applicant alleges that the defendant had purported to acquire a transfer of the lease interest on the land whereupon he transferred it to the respondent without her consent. That on 30 April 2009 the defendant without notice to the applicant removed all his household items, all the movable properties of the applicant and abandoned the suit premises and the matter was reported to the police. Upon abandoning the premises the applicant re- entered the land and has been in effective occupation thereof undisturbed by any person. The defendant subsequently sued the applicant in High Court civil suit No. 173 of 2009 challenging the re-entry and the court trying the suit granted a temporary injunction preserving the status quo. The applicant asserts that she has respected the court order. On 7 June 2011 one Felix Musiime delivered to the residence of the applicant a notice to vacate the premises addressed to the defendant Mikael Holms with a warrant of attachment of the lease which the applicant claims to have terminated by re-entry. The applicant objected to the notice to vacate and attachment in her capacity as the Mailo owner in full possession in a letter attached to the affidavit in support as “M7”.
Another reminder/notice to vacate the premises was again issued to her and her family by the court bailiff Mr. Felix Musiime. The applicant is aggrieved by the warrant of attachment for having the effect of perverting the course of justice as she is in possession of the property and has objected to attachment. She is not a party to the suit between the respondent and the defendant. The applicant contends that the attachment came proceeded under the disguised description of the property by its leasehold register volume and folio numbers which leasehold she had been terminated by her re-entry.
In reply the respondent Mr Tekie Ezra made a deposition on 6 July 2011 which asserts the following facts in opposition to the application to release of the suit property from attachment. On the 2nd day of January 2010 consent judgement was entered in High Court in Civil Suit No. 329 of 2009 between the respondent as plaintiff and Mr Mikael Holm as the defendant in which the defendant was ordered to pay to the respondent a sum of US $ 258,500. The judgment debt has never been fully satisfied putting the respondent out of his money and denying him justice for a long time. Subsequently the respondent applied for a warrant of attachment and sale of the property comprised in LRV 425 folio 12 plot 63 Lukuli Kyadondo Mengo which belongs to Mr. Mikael Holm. A warrant of attachment was issued by the court on 16 May 2011 for execution by Musiime Felix, a bailiff of the court. Mr Mikael Holm the defendant in High Court civil suit 329 of 2009 is the registered proprietor of LRV 425 folio 12 plot 62 at Lukuli Mengo Kyadondo, the subject of the warrant. The status of Mr Michael Holm the defendant is confirmed by a statement of search of the certificate of title made by the Commissioner for land registration. The lease certificate of title reveals that the suit property was registered in the name of the proprietor Maria Odido as the administrator of the estate of the late Alphonse Odido before it was transferred to Mr Mikael Holm the defendant following a lawful sale of the same property by Barclays Bank of Uganda Ltd. The applicant was registered on both the Mailo title and the leasehold title as administrator of the estate of the late Alphonse Odido. Maria Odido in her capacity as the individual Mailo owner varied the terms in the leasehold of the suit property in a deed of variation dated 3rd July 2002. On 28 June 2006, the applicant mortgaged LRV 425 folio 12 plot 63 land at Lukuli the subject of attachment to Barclays bank of Uganda Ltd. The respondent contends that if there was ever a tenancy agreement between Mr Mikael Holms and the applicant on 26 September 2007, the same was frustrated by the subsequent sale of the suit property to the latter by Barclays Bank of Uganda Ltd on the 20th of November 2008.
It is the further contention of the respondent that previous attempts by the applicant to re-enter the suit property were rebuffed by authorities and interested parties as being irregular, fraudulent and ineffective. The evidence the respondent relies on to make this assertion is a letter dated 15 May 2009 from the Commissioner for land registration to the applicant.
On 6 October 2009 the High Court in the ruling delivered by honourable Mr Justice Joseph Murangira in MA No. 461 of 2009 restrained the applicant from occupying, alienating, transferring, assigning, trespassing or otherwise dealing with the suit property comprised in LRV 425 folio 12 plot 63 at Makindye, Kyadondo, Lukuli the subject matter of the suit. In light of the ruling the applicant cannot be legally in possession of the suit premises without being in contempt of court.
At the hearing the applicant was represented by learned Counsel James Nangwala of Messrs Nangwala, Rezida & Company Advocates, while the Respondent was represented by learned Counsel Ebert Byenkya of Messrs Byenkya, Kihika and Company Advocates. Both Counsels agreed to file written submissions in support and opposition of the application. Written submissions of the applicant were filed on the 3rd of November 2011 while the reply of the respondent was filed on the 15th of November 2011. The applicant’s rejoinder to the reply was filed on record on the 18th of November 2011.
Written submissions of the applicant
The applicant is the registered proprietor of the suit land holding a Mailo interest comprised in Kyadondo block 261 plot number 63 at Lukuli. Out of this Mailo land was created a lease comprised in LRV 425 folio 12 plot number 63. The defendant in the main suit was a tenant of the applicant under a tenancy agreement referred to in paragraph 4 of the applicant’s affidavit. The defendant purportedly acquired the leasehold interest on the land. He purported to transfer it to the respondent. The applicant took possession of the premises and occupied it as Mailo owner. The applicant contends that she terminated the lease. The defendant then filed a suit against the applicant in the land division of the High Court (HCCS No 173 of 2009,), contesting termination of the lease. He applied for a temporary injunction to restrain the applicant from alienating, transferring, assigning and letting or selling the suit property until final determination of the suit. The suit is still pending determination. It is the property for which the status quo was ordered to be maintained that the respondent sought to attach.
Principles guiding court in objector proceedings:
Counsel submitted that these principles are well known and make the work of the judge quite easy. The principles have their foundation in order 22 rules 56 and 57 of the Civil Procedure Rules.
The objector must adduce evidence to show that he or she had some interest in the property attached. The objector must also show that at the time of attachment the property was not in possession of the judgement debtor or trustee or tenant of the judgement debtor.
These principles were recently summed up in the judgment of this court in the case of Irene Mutumba versus Crane Bank Ltd High Court in MA No. 557 of 2010 (unreported) at pages 10 – 11, 15, 16 and 17 where the following principles may be derived:-
· The success of the objector’s case is emphasised as being dependent on he or she being in possession of the property attached at the time of attachment.
· Title is only relevant in the enquiry to show whether possession is on account of or in trust for the judgement debtor, or some other person.
· Ultimate questions of trust or complicated questions like the benami nature of the transaction are not within the scope of the enquiry and should not be delved into. Complicated issues involving fraud, trust etc are to be decided by an ordinarily suit and not by objector proceedings inquiry.
Counsel contends that the applicant is only required to show two aspects in order to succeed, that she had some interest in the property and that she was in possession at the time of the attachment in her own right.
As far as interest of the applicant in the property is concerned learned counsel submitted that the affidavit evidence clearly reveals that the applicant is the registered proprietor of Mailo land comprised in Kyadondo block 261 plot number 63 at Lukuli. To that extent the applicant has shown the interest she has in the property and this fact is admitted in paragraphs 9 and 10 of the affidavit in reply.
As far as possession is concerned learned Counsel for the Applicant submitted that that paragraphs 4, 5 and 7 of the affidavit of the applicant are that at one time the defendant/judgement debtor in Civil Suit No. 329 of 2009 was a tenant of the applicant in the suit premises. At the material time, the judgement debtor was in occupation of the premises; it was not on his own account but on account of the applicant.
The judgment debtor abandoned the premises on 30th of April 2009 and the applicant re-entered and took possession of the premises and this is evidenced by a police report annexure "M3" and paragraphs 10, 11 and 12 of the affidavit of the Applicant. The averments contained therein emphasise the fact of the applicant’s possession of the premises in her own right as Mailo owner. The affidavit in reply does not deny the fact of the applicants being in possession of the suit premises but only contends that the entry was fraudulent.
In this enquiry the court cannot delve into issues of the legality or illegality of the entry of a Mailo owner on her land as that is the subject of the HCCS No. 173 of 2009. Objector proceedings cannot be used to determine property rights between parties especially when such property rights are the subject of pending litigation before another judge. The sole issue for the inquiry is possession. Counsel contends that the principles governing objector proceedings bar the court from delving into such complicated issues. In fact the affidavit in reply purports to bring out a purported history of the dispute between the applicant and the judgment debtor. The injunction granted to the judgment debtor in MA No. 461 of 2005 arising out of HCCS No. 173 of 2009 ordered the maintenance of the status quo of the suit premises until the determination of the suit according to the conclusion of the judge in the ruling M4 attached to the affidavit.
Counsel submitted that the respondent in the affidavit in reply admits the existence of the suit between the judgment debtor and the applicant in which the existence of the lease purportedly sought to be attached is an issue for trial.
From the above premises counsel concluded that the applicant has shown that she has an interest in the property attached in her own right and not on account of the judgment debtor. She also proved that at the time of the attachment she and not the judgment debtor were in possession of the property. Counsel prayed that the application is allowed and the land is released from attachment. That the threatened eviction of the applicant is declared unlawful and the applicant pays the costs of the application.
Written Submissions of the Respondent
Learned Counsel for the respondent submitted that the objector application is nothing more than an abuse of the court process contrived by the applicant to get this honourable court to endorse her illegal actions and continued defiance of the standing order delivered by Justice Joseph Murangira on the 6th day of October 2009 in MA No. 461 of 2005. He invited the court to reject the applicant’s application with costs.
To demonstrate what an abuse of court process in this application is, counsel set out to correct a few facts and impressions which in his submission were deliberately misrepresented in the "brief background" to the submissions of the applicant. He also sought to emphasise a few important facts for the court and close with own submissions and prayers.
To set the record straight, learned Counsel submitted that the suit property is not Kyadondo Block 261 plot No. 63 at Lukuli as suggested to the applicant but LRV 425 folio 12 plot 63 Lukuli Kyadondo – Mengo. The first represents a Mailo interest while the latter, the subject matter of a warrant of attachment issued by this honourable court, represents a subsisting lease interest over the Mailo.
For the applicant, an effort has been made to blur the distinction between these interests. For clarity he referred court to the provisions of section 3 (5) (c) of the Land Act cap 227, which stipulates that a landlord grants or is deemed to have granted another person, namely the tenant or lessee, exclusive possession of land as a matter of law. Learned Counsel contended that what is and should be for consideration of this honourable court is the separate and distinct leasehold interest described in LRV 425 folio 12 plot 63, at Lukuli and not the reversionary Mailo interest the objector claims in Kyadondo block 261 plot number 63. By law, during the currency of the lease interest, the Mailo interest is automatically in abeyance for purposes of possession.
It has been stated for the applicant that she terminated the lease and occupied the premises as Mailo owner but counsel asserted that her attempts to this end were at all times rebuffed by authorities and interested parties as being irregular, fraudulent and ineffective in law. This is the un-rebutted averment of the respondent in paragraph 13 of his affidavit in reply and annexure thereto. In the premises, counsel contended that LRV 425 folio 12 is a valid, current and subsisting interest. As stated earlier, questions touching the Mailo interest is not before this court and counsel prayed that the court so holds.
Counsel submitted that an interpretation has been advanced by the objector as to the meaning and effect of the court injunction issued by his Lordship Justice Joseph Murangira in MA No. 461 of 2009. He contended that the terms of the order are clear and are to be found at page 2 of the ruling which is annexed as attachment "I" to the affidavit in reply. The application was allowed and a temporary injunction was granted as prayed for in the application to wit:
"This honourable court issues a temporary injunction prohibiting the respondent from illegally occupying the suit property comprised in LRV 425 folio 12 plot 63 at Makindye, Kyadondo Lukuli until the final determination of the suit".
He prayed that I reject the purported interpretation made on behalf of the applicant which appears to and is calculated to evade the above clear ruling.
As far as abuse of court process is concerned, learned counsel for the Respondent submitted as follows:
In the case of Attorney General and Uganda Land Commission vs. James Mark, Kamoga and another Supreme Court Civil Appeal No. 8 of 2004, Mulenga JSC in the lead judgement with the concurrence of other judges accepted the definition of "abuse of court process" as proffered by the authors of the 6th edition of Black’s Law Dictionary when he said:
"Abuse of court process involves the use of the process for an improper purpose or a purpose for which the process was not established. Black’s law dictionary (6th edition) states – "a malicious abuse of legal process occurs when the party employs it for some unlawful object, not the purpose which it is intended by the law to effect; in other words, a perversion of it."
Counsel contended that the applicant’s attempt to terminate the lease and re-enter the premises were rejected by the Commissioner for land registration as contained in annexure “H” of the affidavit in reply. In addition counsel submitted that section 54 of the Registration of Titles Act, cap 230 provides that instruments are not effectual until when registered. The applicant’s application for registration was rejected. Moreover Mr Mikael Holm obtained an injunction prohibiting the respondent from illegally occupying the suit property comprised in LRV 425 folio 12 plots 63 at Makindye Lukuli until the final determination of the suit". (Please refer to page 2 of the ruling annexed as "I" to the affidavit in reply)
In light of these facts, counsel contended that granting the application has the effect of sanctioning applicant’s hitherto disallowed and illegal acts of purported termination of the lease and re-entry. Moreover the court also barred the applicant from occupying the suit premises.
Learned Counsel contended that objector proceedings are not and were not meant to be a judicial means of terminating leases. To seek to do so, as the applicant has is a perversion and therefore an abuse of the court process which this court ought to deprecate.
Further, the court prohibition on the applicant barring her from among other things occupying the suit premises in MA No. 461 of 2009 is still standing and has neither been appealed nor set aside. Counsel submitted that order 22 rule 56 and 57 the applicant must prove possession in order to succeed. In our view, the applicant cannot plead her occupation of the suit premises, without pleading her blatant defiance of a lawful court order. To plead occupation of the suit premises as the applicant has is to seek to profit from her own wrong and a perversion of court process. The time honoured legal maxim is that a man cannot plead his own wrong nor take advantage of it. Counsel invited the court to reject these overtures.
Counsel further submitted that this honourable court cannot uphold the application without varying and (or) even contradicting the court’s ruling in MA No. 461 of 2005 which prohibited the applicant from occupying the suit premises. In essence, that ruling would be set aside. He contended that objector proceedings are not meant to be an appeal, review or other mechanism of setting aside rulings of the High Court. To seek to do so as the applicant has is a perversion and abuse of the process of court.
As far as illegality is concerned, counsel submitted without prejudice to his earlier submission that if the court were to uphold the application, it would be sanctioning the illegal acts of the applicant namely; defiance of a court order i.e. contempt of court. In support of his contention, counsel referred to the case of Makula International versus his Eminence Cardinal Nsubuga and another reported and digested in  HCB page 11. The Court of Appeal in that case held that "a court of law cannot sanction what is illegal and an illegality once brought to the attention of court overrides all questions of pleadings, including any admissions made thereon”. The court referred among other cases to Belvoir Finance Company Ltd vs. Harold and G. Cole and company Ltd  2 All ER 904 judgement of Donaldson J said at page 908: "I think illegality, once brought to the attention of court, overrides all questions of pleadings, and therefore this is, and remains a real and indeed insuperable difficulty in the way of the defendant so far as the mercantile agency defence is concerned."
Counsel submitted that the pure process of court cannot be tainted with this illegality prayed that the court finds so.
Concerning the principles guiding court in objector proceedings learned counsel agreed with his learned friend’s submissions on the relevant principles. This response is without prejudice to the foregoing.
As far as interest in property is concerned learned counsel submitted that the applicant has no interest in LRV 425 folio 12. Her interest, if any is the reversionary interest comprised in Kyadondo block 261 plot 63 which is separate and distinct and not even in contention in this application before court to the clear provisions of section 3 (5) (c) of the Land Act cap 227; (supra)
For purposes of possession, which is the relevant consideration in objector proceedings this interest is in fact in abeyance given the currency of LRV 425 folio 12. Counsel further referred to the ruling of this honourable court in MA 461 of 2009.
As far as possession is concerned learned counsel submitted that the applicants assertions of possession in paragraphs 4, 6, 7, 10, 11 and 12 of the affidavit in support were sufficiently denied and rebutted in paragraphs 9, 10, 11, 12, 13, 14 and 15 of the affidavit in reply. Counsel further referred to his earlier submissions on abuse of court process and illegality.
Learned counsel concluded that the application is an abuse of court process in so far as it seeks the sanction of the applicant’s illegal actions. It's designs are to vary and (or) set aside this court’s ruling in MA 461 of 2009 in total disregard of the well-known procedures should one desire to do so. It in essence is a perversion of what objector proceedings are seeing as the interest claimed by the applicant is quite different from that of the judgement debtor i.e. LRV 425 folio 12.
Submissions in rejoinder
Learned Counsel for the applicant in rejoinder submitted that respondent’s submissions do not address the issues in controversy. The principles governing objector proceedings as outlined in the submissions of the applicant and not refuted. That the applicant is in possession of the suit premises is not refuted. The essence of the submissions made on behalf of the respondent is that the registrar did not record a re-entry, and not that physical re-entry had not been made.
In the application before court, the interest to be attached is disputed as being non-existent. In HCCS number 173 of 2009, it is the judgement debtor who is the plaintiff against the applicant and not vice versa. If indeed the judgement debtor possesses an unchallenged interest and is in possession, what then, is he doing in court in that suit? Indeed it has not at all been contended that the judgement debtor is in possession.
As far as the temporary injunction issued in MA No. 461 of 2009 is concerned, on page (2) thereof the court reproduces what the judgement debtor sought:
"This honourable court issues a temporary injunction prohibiting the respondent from illegally occupying the suit property comprised in LRV 425 folio 12…"
The prayer clearly shows who was in occupation at the time the application was made. The contention in the application was that the occupation was "illegal".
What the court granted in the application is misrepresented by the submissions made on behalf of the respondent. As earlier, submitted, what the court granted is on the last page of the ruling which are to preserve the status quo, that is, the occupation by the applicant, in this application, of the suit property.
The rest of the submissions are merely inviting the court to delve into complicated issues of legal rights and possibly to determine High Court Civil Suit No. 173 of 2009 which is not before the court and whose pleadings the court is not aware of. The court cannot do that in objector pleadings. Counsel reiterated his prayers that the application be allowed.
Ruling of Court
I have carefully considered the written submissions of counsels, the pleadings and evidence on record and I thank both counsels for their well researched arguments. The principles of law governing objector proceedings are not in dispute by both parties. I will however set them out for the record. The applicant’s application was lodged under order 22 rules 55, 56 and 57 of the Civil Procedure Rules.
Order 22 rule 55 specifically addresses investigations of claims to and objections to attachment and is worded as hereunder:
“55. Investigation of claims to, and objections to the attachment of attached property”.
(1) Where any claim is preferred to, or any objection is made to the attachment of any property attached in execution of a decree on the ground that the property is not liable to the attachment, the court shall proceed to investigate the claim or objection with a like power as regards the examination of the claimant or objector, and in all other respects, as if he or she was a party to the suit; except that no such investigation shall be made where the court considers that the claim or objection was designedly delayed.
Under the above quoted rule the court is empowered to investigate the claim in an objection made to attachment of property which has been attached in execution of a decree. The general ground prescribed by order 22 rules 55 for such an application for release of property from attachment is that the property is not liable to attachment. Why property may not be liable to attachment can be resolved by determining relevant questions of law or fact or mixed law or fact. Order 22 rule 56 deals with the production of evidence by the claimant or objection of his or her interest in the attached property at the time of the attachment. It provides that:
“56. Evidence to be adduced by the claimant
The claimant or objector shall adduce evidence to show that at the date of the attachment he or she had some interest in the property attached.”
Consequently the subject of inquiry of the court under order 22 rules 55 is to establish whether at the time of the attachment the claimant had some interest in the property attached. In the case of Irene Mutumba vs. Crane Bank Ltd MA No. 557 of 2010, cited by the applicants counsel, I noted after summarising previous authorities on the subject that the interest referred to in rules 55 and 56 is qualified by rule 57 of order 22. The interest involved or which the claimant asserts in the objector application for the protection of court must be an interest capable of legal protection. The court protects such an interest in the property from attachment and sale. This also means that the claim, the subject matter of investigation must disclose an interest which would prima facie enjoy legal protection if held to be true. Rule 57 of order 22 of the Civil Procedure Rules gives the grounds of the interest of the claimant or objector for the release of property from attachment upon investigation by court under rules 55, and 56. The wording of rule 57 in this regard is always crucial in determining whether property which has been attached should be released from attachment. Rule 57 stipulates:
“57. Release of property from attachment
Where upon the investigation under rule 55 of this order the court is satisfied that for the reasons stated in the claim or objection the property was not, when attached, in the possession of the judgement debtor or some person in trust for him or her, or in the occupancy of a tenant or some other person paying rent to him or her, or that, being in the possession of the judgement debtor at that time, it was not in his or her possession on his or her own account or as his or her own property, but on account of or in trust for some other person, or partly on his or her own account and partly on account of some other person, the court shall make an order releasing the property, wholly or to such extent as it thinks fit, from attachment.”
Rule 57 makes it clear that the property at the time of attachment should be proved to the satisfaction of court not to be in possession of the judgment debtor or held or in possession of some other person in trust for the judgment debtor. The court is also to be satisfied that where the property is in possession or occupancy of a tenant, such tenant or other person was not paying rent to the judgment debtor or if the property was in the hands of the judgment debtor, it was in his or her possession not on his or her own account as his or her property but on account of or in trust for someone else. The court may also establish that the property was partially held on account of the judgment debtor and partially on account of someone else. The court has discretionary powers under Order 22 rule 56 of the Civil Procedure Rules and for purposes of establishing the matters spelt out under order 22 rule 57 to examine the claimant or objector, in all other respects as if he or she were a party to the suit where the decree and warrant for attachment of the property was issued.
Upon satisfaction of the court that the property falls under any of the categories of property not liable to attachment listed under order 22 rules 57, the same rule makes it mandatory that the property shall be released from attachment. The specific mandatory terms of the rule are: “..., the court shall make an order releasing the property, wholly or to such extent as it thinks fit, from attachment.”
On the order hand rule 58 of order 22 ensures that where court establishes that the property the subject matter of the attachment and objection to attachment was held by the judgment debtor in his or her own right or it was held by some other person in trust for him or her, the court shall disallow the claimants claim. Again mandatory language is used.
The inquiry and determination of the question whether to release the property from attachment or not upon investigation of the claim is a preliminary inquiry and upon establishment of the facts the orders of the court are dictated by either order 22 rules 57 to release the property or order 22 rules 58 to disallow the claim. In other words the court has no discretionary powers except in choosing whether to examine the claimant as if he or she were a party to the suit or not. The courts powers are limited to establishing the facts. It has to reach only to the conclusion that the property is liable to attachment or not. Because the rules that follow whether to release the property from attachment or disallow the claim are mandatory, an aggrieved party has a second chance and may exercise the option to have the matter finally determined in an ordinary suit.
The investigation under order 22 rules 55, 56, and 57 in an objection to attachment of attached property is preliminary and does not have to be conclusive. This is the position in a number of authorities namely: Harilal & Company versus Buganda Industries Ltd  1 EA 318, the Judgment of Lewis J about the scope of order 19 rule 55 and subsequent rules on what is to be investigated by court; John Verjee and Another versus Simon Kalenzi, Court of Appeal Civil Appeal NO 71 of 2000; C. Baguma v Highland Agricultural Export Ltd High Court Miscellaneous Application No. 655 of 2001. The rules provide for a summary procedure releasing the property from attachment or disallowing the claim and should the party aggrieved so desire, he or she may sue for a final determination of the question of ownership or who should have possession under order 22 rule 60 of the Civil Procedure Rules: Order 22 rules 60 provides as follows:
“60. Savings of suits to establish a right to attached property.
Where a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which he or she claims to the property in dispute, but subject to the result of the suit, if any, the order shall be conclusive.”
Rule 60 quoted above deals with a suit filed after an order has been made pursuant to objector proceedings under order 22 rules 55, 56, 57, 58 and 59 of the Civil Procedure Rules, and may result in orders releasing the property with or without conditions or disallowing the claim and dismissing the application. Where the aggrieved party against whom an order has been made does not institute a suit to prove his or her claim, the order of the court in the objector proceeding becomes conclusive. Where a suit is instituted the outcome of the suit will determine the claim.
I have carefully investigated the claim of the objector and considered the submissions of counsels of the parties. As far as the facts are concerned the primary duty of the court is to establish what and the nature of interest the applicant has in the property attached. The onus is on the applicant to prove that she has some interest in the property attached which ought to be protected from attachment and sale. Further I have established from the affidavits in support and against that at the time of the attachment the property was not in possession of the judgment debtor. The applicant is in de facto possession of the property attached. It is an assertion of fact that Mikael Holms is the judgment debtor in the suit from which the warrant of attachment was issued and that the judgment debtor was not in possession of the suit premises. It is an allegation of the applicant that the lease LRV 425 folio 12 was terminated by the applicant's re-entry. The question as to whether she lawfully terminated the lease and whether it was the lease to herself as administrator or to another remains a question for trial. The controversy addresses the question of whether the interest Mikael Holm had was a tenancy or a lease notwithstanding the letters of the Commissioner for Land Registration made with a disclaimer. Can the statement of the Commissioner for Land Registration be disclaimed in light of the conclusiveness of the information on the title deed? Does it not water down the doctrine of constructive notice to the world that is necessary for the conduct of business in the commercial world?
Paragraph 12 of the applicant’s affidavit in support of the application avers as follows:
"That I am aggrieved by the said attachment which has the effect of perverting the cause of justice as I am in possession of the property and am objecting to the same since I'm not a party to the suit between the respondent and the defendant."
LRV 425 folio 12 plot 63 land at Lukuli Kyadondo Mengo was advertised in the daily Monitor of Tuesday, May 24, 2011 at page 39 for sale and the sale was supposed to take place 30 days from the date of the advert.
The attachments to the applicant’s affidavit show that the applicant is a registered proprietor of Kyadondo Block 261 plot 63 measuring 0.99 of an acre. Annexure M1 to the affidavit of Maria Odido also shows that the original registered proprietor, the predecessor in title of the applicant, is the Administrator General of Uganda as administrator of the estate of the late Edward Frederick Lutwama in High Court Administration Cause No. 493 of 1989 registered on the 6– 4- 99 under instrument No. KLA203445 at 12.03 pm. The Applicant was thereafter registered as proprietor on the 6 – 4- 99 at 12.05 pm. The encumbrance page shows that there was an encumbrance by Housing Finance limited registered on 7th of May 1999 which was released on the 18th of December 2007. Thereafter an encumbrance was again registered on the 18th of December 2007 by one Omolo Oudia of Nairobi with the interest being that of a mortgage.
M2 to the applicants affidavit is a tenancy agreement in support of paragraphs 4, 5 and 6 of her affidavit that she rented out the premises to Mikael Holm, the defendant in the notice of attachment namely H.C.C.S. 329 of 2009 between Tekie Ezra and Mikael Holm. The tenancy agreement is dated 26th of September 2007 between the applicant and Mikael Holm and commenced on the 15th of October 2007 for 2 years. Thereafter the applicant avers that she discovered that the lease interest of her land had been transferred without her knowledge or consent. She avers that Mikael Holms suddenly moved out of the premises without her knowledge and when she discovered this fact, she re-entered the demised premises. This assertion is supported by a letter of the Criminal Investigation Department, Divisional CID Officer Katwe in a police report addressed to the applicant in a letter dated 23rd of October 2009. The letter notes among other things that the tenancy with Holm had been renewed for another one year after the 15th of October 2008 and on the 30th of April 2009 Mr. Mikael Holm disappeared with the applicant’s property/furniture which property was later recovered by the police. The letter is M3. The last paragraph of the letter of the CID chief is relevant it states: “It was discovered that Michael Holm conducted himself and handled matters of the purchase and sale of the complainant’s house without her knowledge till he vacated it.”
The applicant avers that the Mikael Holm challenged her re-entry by suing her in HCCS No 173 of 2009. The details of the suit are not available except through annexure “M4” which is a ruling of the court Hon. Mr. Justice Murangira dated 6th of October 2009 in MA No. 461 of 2009 arising from HCCS No. 173 of 2009. The leasehold title has also not been attached. The background of the application was that that the applicant Mikael Holms brought an application for the court to issue a temporary injunction to inter alia prohibit Maria Odido from occupying the suit property comprised in LRV 425 Folio 12 Plot 63 at Makindye, Kyadondo Lukuli until the final determination of the suit. Mikael Holms also sought a temporary injunction to restrain Maria Odido from alienating the property until the suit has been determined. The suit was filed in the Land division of the High Court. The conclusion of the court at page 14 of the ruling is that:
“Considering the application, all the affidavit evidence by both parties, the submissions of counsel and the cited authorities, this application for a temporary injunction is allowed; mainly to maintain the status quo until the final determination of the suit. ...”
Last but not least the applicant has attached the letters of Fred Musiime and court bailiff threatening to evict her from the premises.
For the part of the respondent the affidavit of Tekie Ezra sworn on the 6th of July 2011 is that the Respondent is the defendant in HCCS 329 of 2009 in which on the 2nd day of January 2010 the applicant executed a consent judgment with Mikael Holms in which Mikael Holm was supposed to pay him USD 258,500. The last payment under the consent judgment was supposed to be paid by the 30th of April 2010. The basis of the attachment of the suit property, the subject of the objection/claim is the unsatisfied portion of the decree according the consent decree annexure “A”, the application for execution annexure “B” and the warrant of attachment issued on the 16th of May 2011 annexure “C”.
The respondent in addition avers that Mikael Holm is the registered owner of LRV 425 folio 12 plot 62 at Lukuli attaching as evidence the letter of the Commissioner Land Registration Annexure “D” dated June 22nd 2011. The report of the Commissioner shows that the lease property is LRV 425 folio 12 plot 63 at Lukuli Mengo Kyadondo with a lease of 79 years with effect from 1st September 1957 measuring 1 acre. It was registered in the names of Mikael Holm under instrument No. 412596 on 4th of May 2009. Additionally annexure “E” is a sale agreement between Barclays Bank of Uganda and Mikael Holm as buyer of the same piece of property namely LRV 425 folio 12 plot 63 Lukuli Kyadondo. The title of Barclays bank is stated to be derived from Maria Odido administrator of the estate of Alphonse Odido. The sale agreement is dated 20th of November 2008 and is a sale under a mortgage registered on the title as instruments 335112 and 368624 on the 16th of July 2003 and 12th July 2006 respectively.
That Maria Odido was registered on the lease interest as the proprietor in her capacity as Administrator of the estate of Alphonse Odido which is a separate and distinct capacity from that of her being personally registered on the Mailo title. In her capacity as the Mailo owner Maria Odido varied the lease agreement to herself as Administrator. The lease agreement attached shows that the lease was about to expire on the 10th day of October 2006 and therefore it was given an extension of 30 years with effect from the 2nd day of June 2002. The respondent further attaches a further charge on mortgaged land in an agreement between the applicant and Messrs Barclays Bank of Uganda Ltd dated 28th June 2006 between the registered proprietor of the lease as mortgagor and Messrs Bee Natural Products Limited as the principal debtor with Messrs Barclays Bank of Uganda Limited.
The attempt by the applicant for re-entry to be noted was rejected in a letter dated 15th May 2009 annexure “H” to the affidavit of the Respondent.
From the averments and documents it can be deduced that the lease interest of the applicant was mortgaged to Barclays Bank of Uganda. It was allegedly sold by Barclays Bank to Mikael Holm. On the other hand there was a tenancy agreement between the applicant and the Mikael Holm. It is further alleged that Mikael Holm is not in possession. This fact is supported by the notice of eviction issued by one Musiime Felix against Mikael Holms but received by the applicant. It is also an established fact that there is a consent decree against Mikael Holms in favour of the respondent. This is in High Court Civil Suit No. 329 of 2009. The suit was filed at the Commercial Division of the High Court and the consent decree is dated the 20th of January 2010. On the other hand there is yet another order of the High Court being a temporary injunction in High Court MA No 461 of 2009 arising from High Court Civil Suit No. 173 of 2009 between the Applicant and Mr. Mikael Holm in respect of the leasehold suit property. This ruling was delivered on the 6th of October 2009 and predates the consent decree upon which a warrant of attachment has been issued by this court.
The warrant of attachment was issued on the 16th of May 2011. By the time the warrant was issued, there was an order maintaining the status quo pending the determination of High Court Civil Suit No. 173 of 2009 between Mikael Holms as Plaintiff and Maria Odido as Defendant and concerning LRV 425 Folio 12 plot 63 at Makindye, Kyadondo Lukuli (see page 2 of the ruling of Hon. Justice Joseph Murangira). Counsel Ebert Byenkya, counsel for the respondent submitted strongly that an illegality once brought to the attention of court overrides all questions of pleadings including any admissions made thereby. The illegality brought to the attention of court is that fact that the court had ruled that the applicant should not remain in possession of the suit property and yet the applicant remained on the leasehold premises in defiance of the court order. He also contended that the application was an abuse of court process calculated to sanction the applicant’s illegal possession contrary to the temporary injunction.
The issues raised by learned counsel for the respondent arise from Civil Suit No. 173 of 2009 and MA 461 of 2009 before Justice Joseph Murangira of the Land Division of the High Court.
Firstly there is a dispute between Mikael Holms and Maria Odido the applicant herein which is the subject matter of another suit. The dispute concerns the lease interest namely LRV 425 folio 12 plot 63. The fact that the same property the subject matter of the attachment is involved is clearly established by the ruling of the court relied on by both parties and not in dispute. This ruling refers to the property at page 2 thereof when the Hon. Learned Judge gives the background to the application for a temporary injunction. The arguments advanced by the respondents counsel could be arguments in support of the plaintiff’s case in High Court Civil Suit No 173 of 2009. Questions as to whether the applicant lawfully re-entered the leasehold or terminated it are matters that are necessarily the subject matter of the dispute in High Court Civil Suit No 173 of 2009. As I have pointed out above the include questions as to the disclaimer of the Commissioner for land Registration confirming the presence of a lease and also refusing to note a re-entry memorial on the register of title.
As far as the legality or abuse of court process is concerned in this court, the grounds for determining an application objecting to attachment has been outlined above. The decision of a court investigating a claim or objection to attachment is not conclusive on matters of title unless there is no further litigation in the matter. An aggrieved party may institute a suit to further pursue their interests. The existence of High Court Civil Suit No. 173 of 2009 shows this court that LRV 425 folio 12 plot 63 at Makindye, Kyadondo Lukuli is already the subject matter of a suit in the High Court. As far as alleged illegality and contempt of court is concerned, the proper court to punish anybody for contempt of that court is the court which granted the order which has been flouted if at all and the reasons for this are given hereunder. It is a matter of enforcement in that court, while the controversy relating to who is entitled to possession remains pending before including other controversies which seem on the face of it to have clear answers for determination. I will return to this point later on in the ruling.
In the circumstances of this case I do not agree with the respondents counsel that granting the applicant’s application would sanction an illegality. I am more inclined for the reasons given below to accept the submissions of the applicants counsel on this point. For this court to conclude whether the acts of the applicant are illegal or not would interfere with pending controversies for trial which are latent in High Court Civil Suit No. 173 of 2009 between Maria Odido and Mikael Holms. So long as the applicant who was sued as a defendant claims to be interested whether as lessor or lessee in the suit property or even as a Mailo owner in High Court Civil Suit No. 173 of 2009, the controversies in the said suit cannot be the subject of inquiry and adjudication by this honourable court and in the objector proceedings. The suit property is a subject matter pending before another division of the High Court and is therefore sub judice. The applicant is one of the parties to that suit. If she is in possession illegally, she could be in contempt in another suit and in another court where the suit is still pending. The respondent cannot advance the case of Mikael Holms in this application. Moreover maintaining the status quo in HCCS No. 173 of 2009 is an effort to effect no change in the status of that property even through attachment. It is simply improper for this court to get involved in the matter whatever the merits.
In the premises it is my finding that the applicant has established that she has an interest in the property by virtue of being a party to and interested in the final outcome of High Court Civil Suit No. 173 of 2009 between Mikael Holms as plaintiff and Maria Odido as defendant. I cannot in the circumstances comment on the competence of the defence of the applicant in that suit in which she was sued by the judgment debtor by way of a finding of illegality or anything which would determine her rights or liability in that suit. Neither should I in any way make comments that lead to conclusions about the likelihood of any possible defence of the applicant in the said pending suit in the land division of the High Court. In that suit as proved by the affidavit in support of the application LRV 425 folio 12 plot 63 at Makindye is the subject matter of a temporary injunction issued by honourable Mr justice Joseph Murangira on the 6th day of October 2009. The order of the court concludes the question of what interest has been established in this court when it ruled:
"Considering the application, all the affidavit evidence by both parties, the submissions of both counsel and the cited authorities, this application for a temporary injunction is allowed; mainly to maintain the status quo until the final determination of the suit. (Emphasis added)
Attachment and sale of the property would be in breach of the temporary injunction. For this reason questions as to whether the applicant, Maria Odido is lawfully in occupation of the suit premises, whether she is in contempt of court are matters to be determined by honourable Mr Justice Joseph Murangira or a judge presiding in the civil suit referred to above.
Granting this application would be consistent with maintaining the status quo on the property (preventing alienation through attachment and sale) until final determination of the suit namely High Court Civil Suit No 173 of 2009. For emphasis attachment and sale has the potential of rendering any interest that the defendant may have in the final outcome of High Court Civil Suit No. 173 of 2009 nugatory.
Whether she remains in possession or not cannot affect the decision of this court because the status quo has to be maintained. Considerations or interpretation of the rights of the applicant or Mr. Mikael Holm under the Land Act and Registration of Titles Act in relation to LRV 425 folio 12 the subject matter of attachment would tend to prejudge the pending matter in the other suit namely HCCS No. 173 of 2009.
Last but not least the question as to why Mr. Mikael Holms who in effect got an order to evict the applicant from the property sought to be attached on the 6th of October 2009 and even before the consent judgment relied upon by the respondent dated the 20th of January 2010, but the said Mikael Holm has not yet carried out the eviction against the applicant two years later by November 2011 is properly a matter that belongs to the court that ordered the maintenance of the status quo.
It can be seen from that order that while the court ordered the status quo to be maintained, it at the same time issued in effect a mandatory injunction that the applicant should not continue in occupation. In other words she was required to leave or be evicted in compliance with the court order and the status quo to be maintained meant her not being in possession. As I have noted this does not affect her interest in the final outcome of the main suit where the injunction was granted.
In the premises, the applicant’s application is allowed and the warrant of attachment is set aside. The court also grants the applicant's prayer for declarations to the limited extent that so long as High Court Civil Suit No. 173 of 2009 between Mikael Holms and Maria Odido is pending the lease interest described as LRV 425 folio 12 plot 63 at Makindye, Kyadondo Lukuli is not liable to attachment. Each party shall bear his or her own costs of this application. Ruling delivered in court this 2nd day of December 2011
Hon. Mr. Justice Christopher Madrama
In the presence of:
James Nangwala for the applicant,
Applicant in court
Ebert Byenkya for the respondent and in absence of the Respondent
Ojambo Makoha Court Clerk
Hon. Mr. Justice Christopher Madrama
2nd December 2011