THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

MISCELLANEOUS APPLICATION 191/2014

(Arising from Civil Suit No. 200/2014)

HIRAA TRADERS LTD::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT

                                        VERSUS

BANURA DERRICK::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

BEFORE THE HON. JUSTICE HENRY PETER ADONYO

RULING

1. Application

The Applicant brought this application under the provisions of Order 41 Rule 7 of the Civil Procedure Rules and Section 98 of the Civil Procedure Act. The Applicant sought for orders that Motor vehicle registration UAN 074D ISUZU V340 be impounded, detained and preserved until the hearing and determination of the suit, that the plots (bibanja) pledged by the defendant in Annextures “C” and “D” to the plaint be preserved until the hearing and determination of the suit and that the costs of the application be provided for.

The Application is supported by the affidavit of Mr. Mazhar Qayyum, the Managing Director of the Applicant Company.

The Applicant ‘s case in summary which can be seen from the deposition in the Affidavit in support of this Application is that the Respondent bought on credit a motor vehicle for the Applicant but had sold the said vehicle to a third party before clearing the balance of the purchase price due to the Applicant and that this was done without the knowledge and consent of the Applicant. That additionally, the Respondent who had deposited signed post dated cheques for payment of the balance had attempted to sell one of the pledged security for the motor vehicle which had been taken on credit, that is,  a plot (kibanja) that have a house thereon yet it had been agreed between the parties that in the event of the Respondent’s cheques being dishonoured, the Applicant would be at liberty to impound and sell the suit vehicle and in addition that in the event that the Respondent’s defaulted in completing total payment for the said motor vehicle by 23/3/2014, the plot with the house on would revert to the Applicant as forming full purchase price for the motor vehicle.

That as a result of the action of the Respondent, the Applicant avers that if this Application was not the Respondent was likely to alienate the said property purposely to defeat the Applicant’s interest in the said properties.

In his affidavit in reply, the Respondent deponed that he no longer has proprietary interest in the motor vehicle as the same was sold to a third party, who is not party to the suit, and with the full knowledge and consent of the Applicant. Further that the Applicant had received money from the 3^rd Party, promising to pass on all legal documents concerning the motor vehicle. He deponed that the motor vehicle is not the issue as the Applicant relinquished all interests in it, that the alleged sale of the kibanja is misconceived and that the Plaintiff’s claim is for the recovery of Ug. Shs. 70,760,000/= and not a motor vehicle or kibanja.

2. Submissions

Both parties agreed to file written submissions. The Applicant filed its on 29^th April, 2014. The same has been considered.  By a letter on record from Alliance Advocates, representing the Respondent and filed in court on 8^th May, 2014, Counsel informed court that he would file his submissions by 12^th May, 2014. The same has not been done to date.

3. Resolution of this matter

Order 41 Rule 7 of the Civil Procedure rules provides:

1. The court may, on the application of any party to a suit, and on such terms as it thinks fit—

 (a)  make an order for the detention, preservation or inspection of any property which is the subject matter of the suit, or as to which any question may arise in the suit;

(b)  for all or any of the purposes aforesaid authorise any person to enter upon or into any land or building in the possession of any other party to the suit; and

(c)  for all or any of the purposes aforesaid authorise any samples to be taken, or any observation to be made, or experiment to be tried, which may seem necessary or expedient for the purpose of obtaining full information or evidence.

(2) The provisions as to execution of process shall apply mutatis mutandis to persons authorised to enter under this rule.

Pursuant to the agreements in record, it is not in contention that the Respondent is indebted to the Applicant. According to Annextures C and D the Respondent agreed to relinquish his interest in the property to the Applicant in the event he failed to pay his debt by 23^rd March, 2014. The intention of the parties in the agreements is clear and it should be interpreted for what it is.

I rely on this stamen on the basis of the holding in Bank of Credit & Commerce Int. SA (In liquidation) versus Ali (2001) 1All ER 961 Lord Bingham of Cornhill had this to say that “…in constructing contractual provisions, the object of the Court is to give effect to what the contracting parties intended. To ascertain the intention of the parties the Court reads the terms of the contract as a whole , giving the words used their natural and ordinary meaning in the context of the agreement, the parties relationship and all the relevant facts surrounding the transaction so far as known to the parties. To ascertain the parties intentions the Court does not of course inquire into the parties subjective states of mind but makes an objective judgment based on the materials already identified.”

On the basis of the above, I find that the Applicant has raised triable issues and has satisfied this Honourable Court for issuance of the orders which he seeks to preserve the status quo till the main suit is determined as between the parties.

I would therefore grant this Application and make the following orders are made:

4. Orders

1. Motor vehicle registration UAN 074D ISUZU V340 be impounded, detained and preserved until the hearing and determination of the suit
2.  The plots (bibanja) pledged by the defendant in Annextures “C” and “D” to the plaint be preserved until the hearing and determination of the suit. Certificates of title thereof to be deposited here with the Registrar of this court.
3. Costs shall be in the cause.

This ruling is delivered at Kampala, this 23^rd day of May 2014.

HENRY PETER ADONYO

JUDGE