THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT NAKAWA
MISCELLANOUS APPLICATION NO. 426 OF 2014
(ARISING FROM CIVIL SUIT NO. 262 OF 2014)
HAJI BABUMBA MUHAMMED
CHRIS LATI t/a UNIQUE PROPERTIES::::::::::::::::::: APPLICANTS/PLAINTIFFS
MUHAMMED NANTINDA :::::::::::::::::::::::::::::::::::: RESPONDENT/DEFENDANT
BEFORE: HON. LADY JUSTICE ELIZABETH IBANDA NAHAMYA
This is a Chamber Summons brought under Sections 64 and 98 of the Civil Procedure Act, and Order 40 r 5 (1) (a) (b) and rr 2 & 3 of the Civil Procedure Rules S.I 71-1 “CPR”. The Application is for Orders that:-
- UGX 100,000,000/= (Uganda Shillings One Hundred Million) due to the Plaintiffs from the Respondent/defendant be preserved and attached by way of freezing the Respondent’s Account in Housing Finance Bank Limited, to satisfy the decree which may be passed in Civil Suit No. 261 of 2014.
- Costs of the Application be provided for.
The Application is supported by an Affidavit dated 8th day of July, 2014 deponed by Hajji BabumbaMuhammed, the Applicant.
The grounds upon which the Application is based are particularized in the Affidavit set out above but for purposes of brevity are;
- That on or about the month of November 2012, the Respondent/Defendant approached the Applicants/Plaintiffs and engaged them under their brokerage trade name, Unique Properties to find especially amongst the Plaintiffs’ network of Business friends, and connections, potential buyers of the Defendant’s property comprised in Block 413 Plot 64 situate at Burenga Kisubi Entebbe road Wakiso District.
- During the same month, that the Applicants/Plaintiffs, and, having viewed the properties for sale, entered into commission agreement for marketing the purchase of the properties, whereupon it was agreed between the parties that the Applicants’/Plaintiffs’ commission shall be UGX 100,000,000/= (Uganda Shillings One Hundred Million).
- That consequently, the Applicant/Plaintiffs introduced their client as one Unzi Anthony, to the Respondent/Defendant as a buyer and he purchased the property at UGX 1,300,000,000/= (One Billion Three Hundred Million Shillings Only) after having successfully brokered and made a good bargain by the Applicants/Plaintiffs on behalf of the Respondent/Defendant. That the Respondent/Defendant did execute the transaction of sale of property at the instance of the Plaintiff thereby qualifying the Applicants/Plaintiffs to the entitlement of UGX 100,000,000/= (Uganda Shillings One Hundred Million).
- The Respondent has to date failed to meet his obligations as per the Commission Agreement despite numerous demands from the Applicants/Plaintiffs.
- The Applicants shall suffer irreparable damage if the Application is not granted as there is no other avenue or known property of the Respondent/Defendant nor address of residence nor work other than a telephone contact to enable the Applicants to recover the above mentioned amounts if the suit succeeds.
- The balance of convenience is in favour of the Applicants as the Respondents will not be inconvenienced in any way
- The main suit has a high likelihood of success and the same shall be rendered nugatory if this Application is not granted as the decree will not be satisfied
- That it is just and equitable that this Application be granted.
The Application was opposed by the Respondents who filed an Affidavit in Reply deponed to by Mr. MuhammedNantinda, the Respondent/Defendant dated 14th July, 2014. The deponent admitted that the Commission Agreement was entered into with the Applicants. However, that the Agreement prescribed that in the event that the procurement of the loan facility was unsuccessful, the Agreement would stand terminated without any liability to either party. Mr. MuhammedNantinda contended that on that premise, the initial buyer, one Benda Jennifer Otii, was introduced to him by the Respondent. But she later expressed her difficulty in processing the mortgage with which she had intended to utilize to purchase the property. Therefore it wasagreed that the Applicants refund the initial purchase price of UGX 50,000,000/=. However, he contended that the Applicants’ have failed to satisfy it. Furthermore, that Mr. Anthony Uzzi was introduced to the Respondent by his wife through theirHotel business and related services which the Respondent runs at the said premises. The deponent denied having had any communication with the Applicants during the period when the transaction with Mr. Anthony Uzzi was being made.
Both parties submitted orally. Having restated the law under which the Application was brought, Mr.Geoffrey Nangumya, Counsel for the Applicant asked court to grant the Application as prayed. In response by Mr.Patrick Kabagambe, for the Respondent, he submitted that whereas there is a Commission Agreement, the Applicants Affidavit in support of the Application doesnot state how they got to know of the final buyer. That the Applicants have no connection to the final buyer. Counsel referred Court to the Statutory Declaration deponed by Mr. Anthony Uzzi denying knowledge of the Applicants. On that premise, he asked Court to dismiss the Application with Costs.
Mr. Geoffrey Nangumyamade Submissions in rejoinder in which he contended that the Agreement was open and that the new buyers are also the Applicants’ clients. He asked Court to find that the costs should be in the cause.
I have considered the Parties submissions. I agree with Respondent’s Counsel that there is no connection between the Applicant and second buyer moreover Nantinda’s Affidavit in paragraph 19 states that he consulted the buyer if he knew the Plaintiffs and he stated that he did not know them.
In the Statutory Declaration deponed by Uzzi Anthony, the buyer states in paragraph 3 that he bargained and negotiated with only the guidance of his Lawyer, Mr. John Paul Baingana to pay UGX.1,300,000,000/= (One Billion Three Hundred Million) for land comprised in Kyadondo Block 413, Plot 64 at Bwerenga, Kawuku and developments therein. He also explains that he never dealt with Haji Babumba Mohammed and Chris Lati of Unique Properties whom he has never seen or met in his life.
In paragraph 5 he states “I have never approached nor given any instructions formal or informal to Haji Babumba Mohammed and Chris Lati of Unique Properties to find me a property to purchase and in particular the above mentioned land. I approached Muhammed Nantunda directly who lived at the property and he showed me around.”
Further in paragraph 6, Uzzi Anthony States:- that he has never been a client of Hajji Babumba Mohammed and Chris Lati of Unique Properties and they did not introduce him to Muhammed Nantunda.
Considering the Commission Agreement and Uzzi Anthony’s Statutory Declaration, it is clear that Uzzi Anthony denies having been introduced by the Applicants in respect of this particular property.
I therefore see no reason why UGX. 100,000,000 (a Hundred Million Shillings Only) which allegedly exists on an unnumbered Account with Housing Finance Bank Limited should be frozen. Additionally, there is no proof that UGX. 100,000,000 (A Hundred Million) exists on the said unnumbered account. 040,r5 (1) (a) & (b) CPR envisages a situation where one is about to obstruct/delay the execution of any decree that maybe passed against him/her by way of disposal of property either wholly or in part.
I do not find the cited law, particularly, 040, r5 (1) (b) applicable since it refers to the removal of the whole or part of his/her property from the local limits of the jurisdiction of the Court yet the property in question is an immovable one. I therefore find no good cause for security of costs or attachment of the Respondent’s money as prayed by the Applicants.
Application is hereby dismissed. Costs to be in the cause.
Hon. Lady Justice Elizabeth Ibanda Nahamya
J U D G E
28th August 2014