THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
(EXECUTION AND BAILIFFS DIVISION)
MISCELLEANOUS APPLICATION NO. 1154 OF 2016
(ARISING FROM EMA NO. 139 OF 2015)
SSEBUGWAWO HENRY ………………………………..…… APPLICANT
TROPICAL MICRO ENTREPRENEURS COOPERATIVE SAVINGS AND
CREDIT SOCIETY LTD ………………………….…………………..RESPONDENT
BEFORE LADY JUSTICE FLAVIA SENOGA ANGLIN
By this application made under 0.22 rr 82 and 89(1) C.P.R, and S.98 C.P.A, the Applicant sought the following orders of court.
- The order for delivery to purchaser of land at a sale in execution be found void and declared so abinito.
- The order for delivery to purchaser of land at a sale in an execution be set aside.
- Costs of the application be provided for.
The grounds of the application are briefly that:-
- The Respondent illegally/irregularly executed the decree against the Applicant contrary to the provisions of the Civil Procedure Rules.
The order for delivery to purchaser of land at a sale in execution is void abinito.
In the interests of justice, the order for delivery to purchaser of land at a sale in execution be set aside.
The application is supported by the affidavit of the Applicant.
There is an affidavit in reply deponed by Swaleh Sendawula, the Manager of the Respondent Company, where it is contended that the application is frivolous, vexatious and bad in law and does not warrant the issuance of the orders sought.
That the land was properly and legally sold and an order made by court for delivery of eth same to the purchaser which was done.
There is also an affidavit in rejoinder deponed by the Applicant and an additional affidavit in support.
When the application was called for hearing on 11.10.16, Counsel for the Applicant informed court that he no longer had instructions in the matter.This was confirmed by the Applicant, who then sought time to instruct another lawyer.The matter was accordingly adjourned to 19.10.16.
On that date, Counsel for the respondent and Representatives of eth respondent, together with the Applicant were present.
The Applicant then informed court that he had failed to engage another lawyer due to lack of resources and proceeded to present his application.
The Applicant went through the provisions of the law relied upon, referred to the two supporting affidavits and the attachments thereto and prayed court to allow the application with costs.
Before making his reply, Counsel for the Respondent sought court’s permission to cross examine the Applicant on his affidavit.
In cross examination, the Applicant admitted having been evicted from the land on 20.05.16 by court Bailiffs, but that it was in his absence and the absence of his wife who had gone to work.Only the maid and the children were at home.
Further that he does not know who is in occupation or if anyone is in occupation at all.
That while he requested for documents of the sale from Lukwago & Co Advocates, they were not shown to him.
Also that he signed the affidavit in support of the application at the chambers of his previous Advocates in the presence of his Counsel Samson Byoona.No one else was present.He denied knowing Charles Mbogo or ever meeting him.
In respect of the particulars of fraud referred to in paragraph 2 of the additional affidavit, the Applicant stated that the sale agreement was forged together with eth return although he had not reported any of the said culprits to court.
The affidavit was signed before his former Counsel Samsom Byoona and that he does not know Nathan Okwikol or that he has never met him.That his Counsel used to go with him for commissioning.
Although the affidavit in rejoinder of 11.07.16 was signed before a Commissioner of Oaths, the date it was signed was not indicated.
The affidavit of 18.10.16 was signed in the presence of the Secretary of Akampurira & Co Advocates and the Advocate whom the Applicant does not know.Fees were paid.
After cross examination, Counsel for the Respondent opposed the application contending that, the procedure adopted for challenging the delivery of possession of the suit property was improper.
Counsel stated that, the application is mainly based on fraud and forgery- referred to in the affidavits in support, supplementary affidavit and affidavit in rejoinder.He argued that forgery and fraud are serious allegations which cannot be proved by way of affidavit, since proof thereof requires calling of oral evidence and cross examination, which cannot be done by way of application.
The case of Hannington Wasswa vs. Maria Onyango Ochola & 3 others SCCA 22/93 [KLR 4 28-110] where it was held that “A higher standard of proof is required ….and therefore necessitates a suit so that witnesses are called….” was cited in support.Together with Miscellenous Application 14/14 Habib Bin Musa vs. Global Trust Bank & 2 Others- Justice Kainamura and Miscellenous Application 155/20087 Nalumansi Christine vs. Hon. Justice Stephen Kavuma – where Justice Bawine held that “proof by plaint.”
Further that all the affidavits in support of the application were not sworn by the Commissioner of Oaths as admitted by the Applicant.They should therefore be struck out as there is no supporting affidavit.The case of John Baptist Kakooza vs. Electoral Commission SCEPA 09/2007 was cited in support.
It was the assertion of Counsel that, the property was legally sold in execution by agreement dated 23.04.15, between Kibekity Francis Elder Bailiffs and Mukwaya Bruney.
The return was filed on 24.04.15 - Annexture C affidavit in reply by Swaleh Sendaula.- Annexture A to the same affidavit. The sale was granted following a valuation report done by Ojomakol.Surveyors and Consultants - Annexture B.
The property was resold to Mukwaya and court granted a warrant of eviction and put the purchaser in possession on 20.06.16.
Referring to Annextures E, F, G and H, Counsel emphasized that the purchaser is in possession of the land and every step was taken and sanctioned by court.
He submitted that the application has no merit and should be dismissed with costs. – Referred court to Annextures D and E – receipts of payments.
In rejoinder, the Applicant reiterated his earlier submissions, adding that a reasonable person could not buy a house, without credentials to the Local Councils.He prayed as before.
The issues for the court to determine are:-
- Whether the reliefs sought by the Applicant should be granted.
Having carefully listened to the submissions of eth Applicant and Counsel for the Respondent, and after going through the affidavits for and against the application and the cases relied upon by Counsel for the Respondent to oppose the application, I find that I am more persuaded by the submissions of Counsel for the Respondent.
As pointed out by Counsel for the Respondent, the Applicant mainly relies upon the grounds of fraud and forgery in seeking the remedies he wants from court.
But as rightly submitted by the Respondents’ Counsel, decided cases have established that “it is improper to commence proceedings to challenge the alleged acts of fraud by notice of motion because the standard of proof must be high. The allegation of fraud required an ordinary suit where witnesses would be cross examined.”Refer to Hanington Wasswa vs. Maria Onyango Ochola & Others SCCA 22/93 (Supra).
The holding was reiterated by Hon. Justice Bawine in the case of Nalumansi Christine vs. Hon Justice Steven Kavuma HC MA 155/2008, when he granted that “….given the serious allegations of fraud leveled against the Respondent, the shorter way of proceeding, namely, by motion is not open to the applicant.”He added that “fraud is such a serious allegation which must be pleaded and proved on evidence that can be tested under cross examination. Affidavit evidence has its own limitations.”
Further that “accordingly, even if court were to take a generous course that the issue of fraud be investigated, I would still hold that the procedure adopted by the Applicant is improper.”
Although the Applicant in the present case brought the application by way of chamber summons, the same principles established by the decided cases still apply; as the Applicant relies on affidavit evidence which as already stated therein “has its own limitations”.
The issues raised by the arguments of the Applicant cannot therefore be resolved in affidavit evidence and will therefore not be delved in by this court.
The Applicant is advised to seek redress by way of suit.He can obtain the services of another lawyer as it__ discovered that the lawyer who was representing him in this application before withdrawing did not have a practicing certificate and was indeed not registered as an Advocate.
That may explain why an improper procedure was adopted in seeking a remedy in this matter.
The application is disallowed and is accordingly dismissed.But each party should bear its own costs.
FLAVIA SENOGA ANGLIN