THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(EXECUTION AND BAILIFFS DIVISION)

MISCELLANEOUS APPLICATION NO. 376 OF 2017

 (ARISING OUT OF EMA NO. 2331 OF 2016)

(ARISING OUT OF MISC. APPLICATION 506 OF 2013)

MUSANA ROSE ………………………………….. APPLICANT/OBJECTOR

NSAMBA FAROUK SSAMBWA

…………………………........… RESPONDENT / JUDGMENT CREDITOR

BEFORE LADY JUSTICE FLAVIA SENOGA ANGLIN

This application was made under 0.22 rr 55 (1) (2) 56, and 57 and 0.52 rr 1 and 3 of the Civil Procedure Rules and S.98 CPA.

The Applicant seeks orders of this court to release from attachment property comprised in Block 107 Plot 112, situate at Nakyesanja, Kawanda Trading Center, Nabweru Sub-County, Wakiso District measuring 25ft by 120ft out of 0.25 acres.

The warrant to give vacant possession of the said land issued by court on 13.12.16 be set aside.

Costs of the application be provided for.

The grounds for the application are that:-

• The Objector has interest in the attached property as owner of the same.

• By the time the warrant to give vacant possession of the suit land was given, the Objector was in possession of the suit property.

• The Objector purchased the suit land from the Judgment Debtor as indicated by the sale agreement dated 01.02.10.

• The warrant to give vacant possession of the suit property does not give a proper and accurate description of the suit property to which the warrant is addressed.  With such error apparent on the face of the record; it cannot be a basis upon which vacant possession can be given.

• The Objector will suffer irreparable damage if the warrant to give vacant possession is not set aside.

• This application has been made without delay and it is in the interest of justice that the orders sought be granted.

This application is supported by the affidavit of the Applicant/Objector.There is also a supplement affidavit.

When the application was called for hearing, Counsel for the Applicant recited the provisions of the law under which it was made and the orders sought together with the grounds of the application.She referred to the affidavit in support paragraphs 2, 3,4,5,6 and 7 and the supplementary affidavit in support paragraphs 2-8.

Counsel then cited the case of Ida Soman vs. Najib Mubiru and Joyce Lubega HCCA 234/2005 where Justice Kiryabwire held that in objector applications “the scope of the investigations to be carried under the rules are not for determining ownership threatened by the parties. One of the parties has to sue to determine issue of ownership.  The question to determine is whether at the date of attachment, the Judgment Debtor or Objector was in possession of the property.  If the Judgment Debtor was in possession, the inquiry will proceed no further.  It has also to be determined whether the Objector held the property on his/her own account or in trust for some other person”.

It was submitted that the Applicant/Objector was the one in possession at the time of attachment.  And further that she is not indebted to the Judgment Creditor or the Judgment debtor.

There is an agreement of sale of the land – Annexture “C” indicating that she is the rightful owner of the suit property having purchased the same in February, 2010, prior to the issuance of the decree and warrant of attachment.

The supplementary affidavit also indicates that at the time of eviction, the Applicant was in possession of the premises.

The case of Habib Ismail Sebi vs. Top Finance & Another MA 1702/15 P.G was relied upon to support the issue of possession and to emphasize that “questions of legal right and title are not relevant except in so far as they may affect the decision whether the possession is in trust of the Judgment Debtor or some other person”.

Contending that the Objector had established that she was in possession at the time of the attachment, it was prayed that the application be allowed.

In reply, Counsel for the Respondent pointed out that, without any affidavit in reply, he could only proceed on matters of law, otherwise he ran the risk of giving evidence from the Bar.

He submitted that S.38 CPA provides for modes of execution of a decree interalia. A decree can be executed by:-

1. Delivery of any property specifically decreed.

1. By attachment and sale.

That 0.22 r 55 C.P.R provides for Objection to attachment of property.

And that in order for Objector proceedings to be properly before court, there has to be an attachment of property.

The execution which is being contested and objected to is not an attachment.  It is execution by delivering of property.  It is therefore wrong for the Applicant to pray that the property be released from attachment yet there is no attachment of any property.

Secondly that the Applicant in her affidavit in support and the supplementary affidavit accepts that execution was completed.  Therefore the Objector proceedings to release the property from attachment are not proper.

Further that the case of Habiba Ismail Sebi (Supra) relied upon by Counsel for the Applicant presupposes that before delving into the merits of the application, it must be established if there was attachment.

But that in the present case, there was none.

And that the case of Soman vs. Najib (Supra), also emphasizes that there must be attachment.

 Counsel stated that the meaning of the word “attachment” was extensively discussed in the case of Caltex Oil Ug. Ltd vs. Petrol Uganda Ltd & Another HCMA 279/2004 together with the correlation between Objector proceedings and attachment Vis a Vis other modes of execution.

That Lady Justice Arach Amoko (as she then was) observed that “where there is no attachment of property, then there is nothing to object to under strict compliance with r 55 0.22- C.P.R.”.

Court was then urged to adopt the ruling of Lady Justice Amoko and dismiss the current application.  But that since the Applicant was not a party to the suit from which the decree originates; the Respondent will not seek costs of the application.

In rejoinder, Counsel for the Applicant relied upon Black’s Law Dictionary for the definition of attachment.  Which means “the seizing of a person’s property to secure a judgment”.

He stated that the annexture to the supplementary affidavit of the Bailiff indicates that the keys of the premises were handed over to the Judgment Creditor/Respondent.  And that through the entire process of locking and handing over is a proper definition of attachment within the law.

Earlier prayers were reiterated.

Having listened to the submissions of all Counsel, and taking into account the peculiar circumstances surrounding this case, it is not disputed that by the time this application was filed, the Applicant had gone through the nasty experience of being evicted from the property in dispute together with the Judgment Debtor.

The Applicant has never been party to the proceedings out of which the execution arose and was in possession of the disputed property at the time of execution.

It is also not disputed that eventually, the Applicant re-occupied the property and is currently in possession of the same.

The execution having been completed and a return made to court, the warrant to give vacant possession cannot be said to still be existence and there is nothing to release from attachment.

Despite these circumstances, the claim of the Applicant to the disputed property cannot be ignored more so, since the claims to ownership as indicated by the sale agreement was long before the decree in Civil Suit 0111/14 out of which the Respondents claim arises, and the warrant to give vacant possession which was issued on 13.12.16.

The issue of ownership cannot be determined in these proceedings but court cannot ignore the fact that there is another application pending before this court, seeking among other things orders that the Applicant and the Judgment Debtor vacate the suit premises.

While the application was stayed pending the outcome of the present application, it is an apparent threat to the claim of the Applicant unless court exercises its discretion to give an alternative remedy.

The Applicant was never given a hearing to prove her claim to the property as she was not made a party thereto.  And since she is in possession, this court finds it only just and equitable to maintain the status quo pending the resolution of ownership of the property between her and the Respondent.  – S.33 Judicature Act.

Under 0.22 r 60 C.P.R- where “a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right to 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”.

The Respondent has the option to seek remedy against the Judgment Debtor against whom he has the judgment or file a suit against the Applicant to establish a better title that the Applicant claims.

The application is allowed on those terms with costs to the Applicant.

Flavia Senoga Anglin

JUDGE

27.07.17