THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(EXECUTION AND BAILIFFS DIVISION)

MISCELLANEOUS APPLICATION NO. 214 OF 2017

 (ARISING FROM CIVIL SUIT NO. 409 OF 2016 OF CHIEF MAGISTRATES COURT MENGO AT LDC)

HAROON AHMED NSIBAMBI ------------- APPLICANT/OBJECTOR

VS

TULYAGUMA ISAAC ------------------------ JUDGMENT CREDITOR

KAYIIRA ABUBAKER ----------------------- JUDGMENT DEBOTR

BEFORE LADY JUSTICE FLAVIA SENOGA ANGLIN

RULING

This application was made under S.98 CPA, 0.22 rr 55, 56 and 57 and 0.52 rr 1, 2 and 3 C.P.R, seeking orders of this court immediately releasing motor vehicle Reg. No. UAN089Z, Fuso Mitsubishi from attachment.

Costs of the Applicant were also applied for.

The grounds for the application briefly are that:-

1. Motor vehicle Reg. No. UAN 089Z is the property of the Applicant and is not liable to attachment.
2. The logbook staked to the Judgment Creditor upon which judgment was obtained is a forgery.
3. The Applicant and not the Judgment Debtor was in possession of the said motor vehicle at the time of its attachment.
4. The Applicant is not indebted to the Judgment Creditor and the vehicle in issue has never been in possession of the Judgment Debtor nor does it belong to him.
5. It is in the interests of justice and equitable that this application be allowed.

The application is supported by the affidavit of Madinah Nsibambi, the wife of the Applicant.

There are two affidavits in reply, by the Judgment Creditor and the Judgment Debtor respectively.

The Judgment Creditor depones interalia that the Judgment Debtor borrowed money from him in early 2015, to repair his motor vehicle No. UAN 089Z which has gotten an accident.

The Judgment Debtor deposited the original logbook of the vehicle with the First Respondent as security and that it has been with the First Respondent since.

The log book was and is still in the names of the Applicant who was the owner of the vehicle before selling it to the Judgment Debtor.

The Judgment Debtor was in possession of a sale agreement of the vehicle and of the vehicle – Annexture B.

The Judgment Debtor was also in possession of the vehicle when he borrowed money from the Judgment Creditor until the same was attached.

Before instituting the suit, the Judgment Creditor had made several demands for payment and of the whereabouts of the vehicle used as security and he took the Judgment Creditor to Nalongo Babirye’s place at Naluvule, Wakiso, Homia Road where the vehicle was parked.

The vehicle was eventually attached before judgment but the Applicant did not object until the judgment was entered.

That the logbook staked to the Judgment Creditor is a forgery but that at the time of the attachment the vehicle was in possession of the Judgment Debtor.

But that the analysis from the Directorate of forensic services confirms that the signature on the sales agreement and the logbook are by the same author.

That therefore, the Applicant had transferred his interest in the said vehicle to the Judgment Debtor upon signing the sale agreement.

It was then prayed that the application be dismissed with costs.

The affidavit of the Judgment Debtor is to the effect that, the application is incurably defective and ought to be dismissed with costs.

That the affirmant has no knowledge of the facts pertaining to the transaction executed between the Debtor and the Objector.

He further asserts that he purchased the vehicle from the Objector and the Objector voluntarily handed over the original logbook and the catalog respectively – Annextures A, B and C.

The Objector only got a copy of the logbook of the vehicle from the court record.

That after purchasing the vehicle, it was agreed with the Objector that he retains the suit vehicle and repairs the same since it was not in a proper mechanical and working condition, since the Judgment Debtor was going out of the country on business.

But that upon his return, the Objector found the vehicle still not in good condition as the Objector was using the same for his personal business and hence compelled the Objector to park the vehicle in order to repair it.

In apparent contradiction of himself, the Judgment Debtor claims that there is evidence adduced to prove that the logbook of the vehicle that was in his possession is a forgery but that the allegation remains unsubstantiated.

The vehicle was in possession of the Objector at the time of purchase and the affirmant has no interest in the same – paragraph 11.

And that, at the time of the attachment of the vehicle, the Objector was in control of the same and not on account of any other person, or possession of some other person in trust for him and therefore court should disallow the application.

There are two affidavits in rejoinder in respect of the First Respondent’s reply and the Second Respondents (Judgment Debtor) affidavits in reply.

The deponent affirms that she is legally married to the Applicant, has the original log book of the vehicle- Annexture A.

And that she has been in possession and control of the said motor vehicle since its purchase and was paying parking fees when it was parked at Nalongo Babirye’s garage- Annexture B.

The Applicant never sold the vehicle to the Judgment Debtor.

In the Second affidavit, she asserts that she knows the facts pertaining to the vehicle and that Applicant never sold it to the Second Respondent.

The original log book is in her possession and it has been confirmed as genuine by Uganda Revenue Authority – Annexture A and B.

By 12.12.13 when the Second Respondent (Judgment Debtor) alleged to have travelled the vehicle was in good condition and only got an accident in December, 2014, while in possession of the Applicant’s family.

The vehicle was operated by one Hassan until it got an accident and the agreement for the operations is Annexture E.

The vehicle was repaired at Ndeeba on the Applicant’s instructions and costs.

The vehicle was taken to Nalongo’s parking on the Applicant’s instructions Annexture A₂ shows that the deponent has been paying parking fees.

That, the Respondent/ Judgment Debtor admits in his affidavit in reply that the log book in his possession is a forgery and that he was not in possession of the vehicle at the time of attachment.

The application was heard on 28.03.17 after Counsel for the Judgment Debtor was advised to make the preliminary objection an issue in the application.

Counsel for the Applicant went through the grounds of the application relying on the affidavit of the wife of the Applicant in support and in rejoinder.

He referred to the original logbook and parking receipts attached by the Applicant’s wife on the affidavits in rejoinder, emphasizing that it is the Applicant who had been paying parking fees.

The evidence also indicates that the vehicle was picked from the parking at Naluvule and not from the compound of the Judgment Debtor or from his work place; Counsel argued; concluding that since the parking does not belong to the Judgment Debtor, the vehicle was not there on his instructions or at all.

Further that, the affidavit in rejoinder of Jimmy Katende Advocate confirms that he drafted the agreement between the Applicant and Hassan who was to use the vehicle on behalf of the Applicant and pay fees.

Bank slip of 18.12.13 indicates fees paid.  The agreement is dated November 2013.  By December 2013 Hassan was still paying for the use of the vehicle and therefore it cannot be true that the Applicant sold the vehicle to the judgment Debtor on 20.05.13.

And the vehicle got an accident in December, 2014, when it was still in the hands of Hassan.  Therefore that, the evidence that the Applicant sold the vehicle is a lie.

The Applicant has proved that he is the legitimate owner of the vehicle, Counsel stated.  But that most importantly, he has proved he was in possession of the vehicle by the time of the alleged attachment, as it was packed on his instructions and at his cost.

The Judgment Creditor’s affidavit paragraph 7, 8, 10 and 12 were not proved by any evidence, it was argued.  If the vehicle was the subject of a loan agreement, what did that have to do with the Applicant, Counsel wondered.

Further that, the statements of the Judgment Debtor that he compelled the Applicant to park the vehicle do not make sense.  If the Judgment Debtor bought and paid for the vehicle, why would he compel Applicant to park it.

In paragraph 10 of the affidavit, the Judgment Creditor admits that the logbook in his possession is a forgery.  This is repeated in paragraph 12 where he states that, the Objector was in possession and not on account of any other person.

Counsel asserted that, the contradictions bear out the truth of the Applicant’s affidavit.

He prayed court to allow the application and release the vehicle from attachment.

Counsel for the Judgment Debtor in reply, raised a preliminary objection.  He submitted that the application is incompetent and ought to be dismissed for the following reasons:-

1. The deponent has no locus or authority to swear the affidavit in support of the application on behalf of the Objector.

That, it is trite law that where a party swears an affidavit without the authority of the party to the suit, the affidavit is defective for want of authority.  The case of Taremwa K. Thomas & 8 Others vs. Attorney General & 2 Others HMA 0038/2012 by Justice Bashaija was cited in support.

Praying that the application be dismissed on that account, Counsel added that, the deponent did not produce any evidence to indicate that she is the wife of the Applicant.

Further that, the affidavit of Jimmy Katende should also be struck out as it ought to have been a supplementary affidavit and not an affidavit in rejoinder.  Not being a party to the application, he had no locus to depone the affidavit, Counsel argued.  There is no express authority from the Objector giving Katende instructions to depone the affidavit and it should therefore be disregarded.

Going into the merits of the application, Counsel contended that the Judgment Debtor purchased the vehicle from the Applicant and later he handed over the original logbook.

There is a sale agreement attached to the affidavit in reply- Annexture A1, dated 20.05.13.  Copy of the logbook and the Qatar logbook Annexture C.  Based on that evidence, the vehicle was sold to the Judgment Debtor.

And that, at the time the vehicle was attached, it was in possession of the Judgment Debtor – paragraph 11 affidavit in rejoinder.

Court was urged to refer to paragraphs 7-12 of the affidavit in rejoinder which show how the Second Respondent got into possession of the suit vehicle.  Adding that, there is no way the Judgment Debtor would be in possession of both logbooks without having purchased the vehicle from the Objector.

And that the allegations of the Applicant that the sale agreement is a forgery was not sustainable.

It was also pointed out that, the receipt for payment of parking fees does not reflect that it was issued at Nalongo’s parking place.  The author is unknown therefore making it suspect.

There is therefore no proof that it was generated from Nalongo’s parking place.

Commenting about the agreement between the Applicant ad Hassan- Annexture E₁ affidavit; Counsel argued that, the agreement was made on 12.11.13, but by then the vehicle had been sold to the Judgment Debtor and was the property of the Judgment Debtor and is therefore of no consequence.

The deposit slip of Hassan bears his name but does not show who received the money and is therefore inconclusive.

As to the Objector being in possession, it was submitted that, as deponed in paragraph 7 of the affidavit in reply, the Judgment Debtor went to DRC for business for two years.  It was agreed that the Objector retains the vehicle to repair the same.

Upon his return, it was discovered that the Objector was using the vehicle for personal business.  The Judgment Debtor directed the Objector to park the vehicle at Nalongo’s place for purposes of repair.  The vehicle was in possession of the Judgment Debtor at the time of attachment, Counsel contended.

Denying any alleged admission of forgery of the logbook and possession hereof, Counsel contended that, that was a typing error and there is an affidavit in rejoinder verifying that.

He prayed for dismissal of the application with costs.

Counsel for the Judgment Creditor also raised two objections.  He submitted that the affidavit in support of the motion contravened 0.11r2 C.P.R and there was no written authority filed with the application allowing the deponent to swear affidavit.

The Applicant is not even a party to the suit; he added, citing the case of Mwesigye vs. Returning Officer HCCS 12/2004 where it was held that “0.1 r 12 (1) and (2) C.P.R requires that, where there is more than one deponent, the others can give written authority to act”.  Since there is no such authority in this matter, the affidavit is incompetent, he stated.

 Adding that, much as the deponent claims to be the wife of the Applicant; She should have got express authority from the Applicant to depone the affidavit.

Counsel asserted that, the law has reasons to place that requirement for example to prevent the likelihood of the spouse acting on behalf of the other, whereas not.

Secondly that, the affidavit in support does not distinguished facts of own knowledge from those of information.  He referred to paragraphs 3, 4, 5, 7 and 12, contending that they are not in her knowledge as she is not a party to the transaction.

That on that basis, the motion should be dismissed with costs.

Going to the merits of the application, it was submitted that 0.22 r 57 C.P.R, requires Applicant to have been in possession of the property if they are to succeed.

That the affidavit of the Judgment Debtor shows that the Applicant was not in possession of the vehicle.  At the time of the attachment, the vehicle was in possession of the Judgment Debtor.  Therefore that the application should be discussed with cots to the Judgment Creditor.

In rejoinder, it was the contention of Counsel for the Applicant that, a look at the affidavit in reply of the Judgment Creditor paragraph 9, he admits that he was never given the vehicle as security and he did not know where it was; raising questions as to whether he purported security belonged to the Judgment Debtor.

As to the alleged lack of possession by Nalongo and her being paid for it, Counsel argued that, Nalongo is a common factor in all the affidavits in respect of the application.  The vehicle was parked there as evidenced by the Judgment Debtor’s affirmation that he ordered the Applicant to park it at Nalongo’s.  And the Judgment Creditor confirms that the vehicle was attached from Nalongo’s place.

Only the Applicant has evidence of paying for the parking and there is no evidence to dispute it.

In reply to the preliminary objections, it was submitted that, the affidavits contain evidence of fact known to the deponents.  If the case was the usual civil suit, the deponents would have testified.

Counsel asserted that, evidence by affidavit is evidence of a party who knows the facts.

Paragraph 3 of the supporting affidavit – facts are known to the deponent.  And that no contrary evidence was given to that effect.  Therefore, the affidavit is not hearsay or from information, it is from her own knowledge.

0.19 r 3 C.P.R was relied upon to state that “facts are within the knowledge of the deponent”.  And that the Applicant can rely on the affidavit of the deponent within her own knowledge.

Counsel insisted that, the Deponent is not a stranger to the transaction but a participant.  She is a wife of the Applicant according to paragraph 17, and she knows within her own knowledge.

It was the further contention of Counsel that, the authorities relied upon by the Judgment Creditor and the Judgment Debtor that is, Taremwa & Others vs. Attorney General (Supra) and Mwesigye vs. Returning Officer (Supra) none of them concerned a situation like the present.  That they concerned matters of more than two litigants, interested in the suit, and one purports to give evidence for the other in different claims.  But that in the present case, that is not the situation.

The cases do not apply at all in the present case, where there is one litigant, and the Deponent is his wife and witness.

The Deponent was authorized and it is the Respondent’s who claim there is no authority, to prove it.

Counsel relied on the case of Spear Motors vs.___ for the holding that “the burden of proof shifts where a party alleges and the other denies”.

It was also argued that, the authorities of judges with equal jurisdiction are not binding but merely persuasive.  And also that the catalog does not prove anything.

Counsel referred court to paragraph 6 of Katende’s affidavit and the Bank Slip and the case of Nyakato Josephine vs. Ecumenical Church Loan Fund KLR [2009] KLR 563 and Kiyega Henry vs. Ecumenical Church Loan Fund [2009] KLR 557 and reiterated his earlier prayers.

The following are the issues framed from the submissions, beginning with the preliminary objections.

1. Whether the application is incompetent and ought to be dismissed. That is, whether the deponent of the affidavit in support has no locus or authority to swear the affidavit on behalf of the Objector.
2. Whether the supporting affidavit does not distinguish facts of own knowledge from those if information.
3. Whether the affidavit of Jimmy Katende should be struck out for being headed as an affidavit in rejoinder instead of a supplementary affidavit and also  for lack of express authority from the Objector to depone the same.
4. Whether the application should be allowed.

The issues will be resolved in the order that they have been set out.

Whether the application is incompetent.

The deponent of the affidavit in dispute is the wife of the Objector.  She clearly indicates in paragraph 1, 2 and 3 of the said affidavit that she affirms the affidavit in her capacity as the wife and that the Objector has authorized her to affirm the same.  And that she knew the facts pertaining to the application objecting to the attachment of motor vehicle Reg. No. UAN089Z.

As pointed out by Counsel for the Applicant and rightly so in my view, the burden to prove that the affirmant was not the wife of the Objector, that she had not been authorized to swear the affidavit and that the facts were not within her knowledge shifted to the Judgment Creditor and the Judgment Debtor.

Otherwise, looking at the impugned affidavit, it was in conformity with 0.19 r 3 91) C.P.R which provides that “affidavits shall be confined to such facts as the deponent is able on his or her own knowledge to prove”.

Without proof that the deponent did not have authority to swear the affidavit, the court finds that the affidavit is not defective.  I am persuaded that the case of Taremwa & Others vs. Attorney General (Supra) is not applicable to the circumstances of the present case.  In that case, there were different claims, and one of the parties attempted to give evidence for the other.

In the present case, the deponent is the wife of the Objector.  Husband and wife are one until otherwise proved.  The wife was given authority to swear the affidavit and as already indicated the facts are within her knowledge.  She had locus to depone the affidavit in support of the application and the application is accordingly properly before court.

01 r 12 (1) and (2) C.P.R are also not applicable to the circumstances of the present case.  The affirment deponed the affidavit as a wife of the Objector who had been authorized to do so, since the Objector was out of the country and she did not have to be a party to the application in those circumstances.

Supporting affidavit not distinguishing facts of knowledge from those of information.  The submissions of Counsel for the Judgment Debtor in this respect are not sustainable.  As earlier stated, the deponent affirms that the facts pertaining to the application are within her knowledge.  And that since the Objector lives abroad, she was the one in control of the vehicle on his behalf since its purchase and she is the one who has been responsible for the costs of repair and relating with the Advocates. – 0.19 r 3 (1) C.P.R.

Whether the affidavit of Jimmy Katende Advocate should be struck: The issues of heading of the affidavit do not go to the substance thereof.  It is trite law that substantive justice should be administered without undue regard to technicalities.  The affidavit complained of though supplementary was deponed in rejoinder to the claims of the Judgment Creditor and the Judgment Debtor.  No injustice was suffered or will be suffered by any of the parties as a result of the alleged wrong heading of the affidavit.

As to the alleged lack of authority from the Objector to Katende to swear the affidavit, I would still find that the objection is not sustainable.

The deponent was deponing to facts within his knowledge as he is the one who drafted the agreement between the Objector and Hassan Musoke.  If this was a normal suit and not an application, he could have been called as a witness for the Objector.  The only difference here is that he is giving affidavit evidence.  If the Respondents had had any doubt about his evidence, they should have applied to court, have him cross examined.  That objection too is overruled.

What remains for court to determine is whether the application should be allowed.

Decided cases have been established that in cases of this nature, the sole question to be investigated is one of possession.  That is, whether on the date of attachment, the Judgment Debtor or Objector was in possession, where the court is satisfied that the property was in possession of the Objector, court has to determine whether the Objector held it in his/her own account or in trust for the Judgment Debtor.

Courts have further emphasized that, in a situation like the present case, “questions of legal right and title are not relevant except in so far as that they affect the decision as to whether the possession is on account of or in trust for the Judgment Debtor or some other person.  To that extent the title may be part of the inquiry”. – Refer to Harilal Co. vs. Buganda Industries Ltd [1960] IEA 318 (HCU).

In the present case, there are serious issues of ownership of the vehicle which can only be determined by a separate suit.

However, it can be discerned from paragraph 12 of the Judgment Debtor’s affidavit that, he admits that at the time of the attachment of the suit vehicle, the Objector was in possession and control of the same and not on account of any other person, or in possession of some other person in trust for him. – Although he concludes the paragraph by stating that the court should disallow the application.

I find that this admission of the Judgment Debtor lends credence to the Objector’s claim that he was in possession of the vehicle although he had had it parked at Nalongo’s premises.

That the vehicle was attached from Nalongo’s place is also confirmed by paragraph 9, 10 and 11 of the Judgment Creditor’s affidavit.

For those reasons court will allow this application and order that the vehicle be released to the Objector.

The issue of ownership of the vehicle cannot be determined at this stage.  The Judgment Debtor is free to sue the Objector so that court can determine who is the actual owner of the vehicle in issue.

I am fortified in my finding by the principle established by decided cases, already referred to earlier in this ruling, that “the scope of investigation to be carried out by court under 0.22 r 55 (1), 56 and 57 C.P.R is not for determining ownership that was threatened by attachment”.

“At the end of Objector proceedings, one of the parties has to sue in order to determine the issue of title to the property.  An order made under the rule is only provisional and a suit may be brought to claim the property notwithstanding the order”. – Refer to Uganda Mineral Waters Ltd vs. Piran & Another [1994-1995] HCB.

The order to release the vehicle does not in any way affect the rights of the Judgment Creditor as he can seek other ways to enforce his judgment against the Judgment Debtor.

The application is allowed for all those reasons.  The vehicle to be released from attachment.

The costs of the application are to be borne by the Judgment Debtor and the Judgment Creditor.

FLAVIA SENOGA ANGLIN

JUDGE