THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
HIGH COURT CIVIL SUIT NO. 1314 OF 2000
BA.NK OF BARODA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . PLAINTIFF
SDV TRANSAMI (U) LTD …..……………………………..DEFENDANT
Before: The Hon. Mr. Justice E.S. Lugayizi
This ruling is in respect of a preliminary objection that the defendant raised just as Court was about to hear the head suit. However, before going into the merits of the preliminary objection it is wise to understand its background, which is as follows.
In the early part of 2000 a Court bailiff attached a lorry registration No. 032 UDK and a trailer registration No. 062 UDK and sought to sell them to satisfy a decree that Court passed in favour of the defendant under HCCS No. 949 of 1999. On 2/5/2000 the plaintiff reacted by filing Miscellaneous Application No. 524 of 2000 (i.e. objector proceedings) against the defendant. The plaintiff sought to have the said vehicles released from attachment because it claimed an interest in them under a charge. On 3/5/2000 the court bailiff sold the vehicles in question and paid the defendant. On 28/10/2000 the plaintiff sued the defendant (under the head suit) for, among other things, the recovery of shs.l20, 000, 000/= which it claimed was the value of the vehicles. It contended that despite the fact that the defendant had prior knowledge of its interest in the vehicles, it went ahead and wrongfully sold them and kept the proceeds of the sale.
In its WSD
the defendant denied the above claim. Among other things, it averred that the head suit did not disclose a cause of action against it. Therefore, it gave notice that it would raise a preliminary point of law before the hearing of the head suit. Indeed, just as Court was about to hear the head suit the defendant requested to be heard on the preliminary point of law. Briefly, that is the background to the preliminary objection.
At the time of hearing the preliminary objection Mr. Asiimwe
represented the plaintiff and Messrs Masembe Kanyerezi
represented the defendant.
Although the defendant had indicated in its WSD
that it would raise one legal issue during the preliminary objection, in reality Messrs
raised two legal issues in their submissions. Court allowed them to argue the two issues because it thought that both of them were of profound legal importance and had been canvassed in the pleadings. In any case, Court gave Mr. Asiimwe
ample time to reflect upon the two legal issues before completing his submissions.
In essence, Messrs Kanyerezi