THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(COMMERCIAL COURT DIVISION)

MISC. APPLICATION NO. 469 OF 2012

(Arising from Execution Misc. Application No. 1320 of 2011)

(All Arising from Originating Summons No. 14 of 2006)

HAJI AMIN SERUMUNYE………………….APPLICANT/OBJECTOR

VERSUS

1. GREENLAND BANK LTD (IN LIQUIDATION)……RESPONDENT

1. BYAMUKAMA GENERAL SUPPLY LTD………….RESPONDENT

BEFORE HON. LADY JUSTICE HELLEN OBURA

RULING

This is an application brought under section 98 of the Civil Procedure Act, Order 21 rule 55(1) and Order 52 rules 1 and 3 of the Civil Procedure Rules for Orders that:

1. An order of foreclosure, warrant of attachment and sale of immoveable property described as Kibuga Block 18 Plot 882 be set aside to allow court investigate the true ownership of the suit land/kibanja.
2. The respondent or their agents be restrained from evicting or disposing of the suit property.
3. Costs of the application be provided for.

The grounds of the application are contained in the affidavit of Hajj Amin Serumunye. They are that the applicant is a kibanja holder on the suit land described as Block 18 Kibuga Plot 1217 and Kibuga Block 18 Plot 882 land at Natete which he purchased in 1976. Secondly, that the applicant has been in occupation of the said kibanja with rental houses thereon uninterrupted for a period of over 36 years.

Further that the 2^nd respondent is not known to the applicant and has never occupied the suit land. The acquisition of the suit property by a one Abdul Kaadir Issa and mortgaging of the suit land by the 2^nd respondent to the 1^st respondent was stated to be fraudulent and illegal. Another ground is that the applicant has neither sold the suit property to the respondents nor mortgaged the same to any financial institution.  Further that the applicant has an equitable interest in the suit land and as such has a prima facie case with high probability of success.

It was also deposed that the 2^nd respondent mortgaged the suit property to the 1^st respondent without consent from the applicant who is a sitting tenant on the suit land since 1976. It is the applicant’s case that the execution and sale of the suit property without notifying him was illegal and would deprive him of his constitutional right to own property. Lastly that it is in the interest of justice that a warrant of attachment and sale of immoveable property described as Kibuga Block 18 Plot 882 land at Natete be set aside to allow court investigate true ownership of the suit land/kibanja.

The 1^st respondent opposed the application on the grounds stated in the affidavit in reply deposed by Mr. Bwogi Kalibbala. The gist of the grounds is that the applicant has no interest legal or equitable in the property being the subject of attachment and is not in possession of it.

Both counsel filed written submissions and this matter was set down for a ruling. Counsel for the applicant submitted that the applicant has proved by way of affidavit evidence contained in paragraph 2 of his affidavit that he purchased from Paul Kiwanuka property comprised in Plots 882 and 1217 and has been in occupation of the same for over 36 years.

He submitted that this court should consider the actions of the respondent in acquisition of the title and mortgaging the same to the 1^st respondent as fraudulent on the basis that they were aware of the interest of the applicant in the land and that no consent was ever secured from the applicant while mortgaging the suit property.

Counsel for the applicant contended that the applicant had proved that there is an intended eviction and sale of the suit property by the respondent which will cause irreparable loss to him as a sitting tenant on the suit property. It was also submitted for the applicant that his kibanja occupies both plots 882 and 1217 and that there are rental houses thereon.

Counsel for the respondent submitted that the applicant has no interest in the property being the subject of attachment and is not in possession of it. He argued that the property sought to be released from attachment is a different property described in the affidavit evidence as Kibuga Block 18 Plot 1217.

He referred to paragraphs 2, 3 and 8 of the applicant’s affidavit. In paragraph 2, the applicant refers to annexture A1 and A2 being a sale agreement indicating that the applicant purchased a kibanja from Paul Kiwanuka and a certificate of title for Kibuga Block 8 Plot 1217 where the said kibanja is located respectively. A2 shows that that land was formerly registered in the name of Paul Kiwanuka and is currently registered in the name of Livingstone Kijjambu.  In paragraph 3, the applicant confirms being a lawful occupant on Kibuga Block 6 Plot 1217 holding an equitable interest thereon and in paragraph 8 the applicant refers to developments on Kibuga Block 18 Plot 1217 annexed as C1 and C2.

Counsel for the respondent concluded that the property being the subject of attachment is Kibuga Block 18 Plot 882 and not Kibuga Block 18 Plot 1217 referred to in paragraphs 2, 3 and 8 of the applicant’s affidavit. He also argued that there is no affidavit evidence suggesting that the applicant is in occupation or possession of a kibanja on Kibuga Block 18 Plot 882, the property subject to attachment.

I have carefully considered the written submissions for and against the application. All the parties are in agreement on the principle of law governing objector proceedings.

Order 22 rule 55 (1) of the Civil Procedure Rules, under which this application was brought provides:

“ Where any claim is preferred to, or any objection is made to the attachment of any property attached in execution of a decree on the ground that the property is not liable to the attachment, the court shall proceed to investigate the claim or objection with a like power as regards the examination of the claimant or objector, and in all other respects, as if he or she was a party to the suit; except that no such investigation shall be made where the court considers that the claim or objection was designedly delayed”.

Under this rule the court is empowered to investigate the claim in an objection made to attachment of property which has been attached in execution of a decree. The general ground prescribed by Order 22 rule 55 for such an application for release of property from attachment is that the property is not liable to attachment. Order 22 rule 56 deals with the production of evidence by the claimant or objection of his or her interest in the attached property at the time of the attachment. It provides that:

“The claimant or objector shall adduce evidence to show that at the date of the attachment he or she had some interest in the property attached.”

Rule57 provides for release of property from attachment where court investigates under rule 55 and it is satisfied that for the reasons stated in the claim or objection the property was not, when attached, in the possession of the judgment debtor or some person in trust for him or her, or in the occupancy of a tenant or some other person paying rent to him or her, or that, being in the possession of the judgment debtor at that time, it was not in his or her possession on his or  her own account or as his or her own property.

In the case of Abdul Kadir Sempa v Alamanzabi Bwanika & Faustin K. Nkunda Misc. Application No 207 of 2001 Ogoola J (as he then was) stated as follows:

“The law on objector proceedings has long been established, the sole question to be investigated is one of possession. Questions of legal right and title are not relevant - except in so far as they may affect the decision as to whether the possession is on account of or in trust for the judgment debtor or some other person.”

This same principle was restated in the case of Prompt Facilities Ltd v Richard Onen t/a Richard Electrical Services and Joyce Ataro Kitgum [2008] HCB 148.

I wish to observe that the applicant is objecting attachment of a property comprised in Kibuga Block 18 Plot 882 claiming occupation of the same. However he attaches a certificate of title for Kibuga Block 18 Plot 1217 and confirms being in occupation of the same. This property as rightly pointed out by counsel for the respondent is registered in the name of Livingstone Kijjambu and not in the name of Abdul Kaadir Issa the registered proprietor of property comprised in Kibuga Block 18 Plot No. 882.

I have perused the affidavit in support and all the documents and I do agree with counsel for the respondent that there is no evidence suggesting that the applicant is in occupation or possession of a kibanja on Kibuga Block 18 Plot 882, the property subject to attachment. Kibuga Block 18 Plot 1217 which the applicant claims to occupy and has equitable interest in is not the property sought to be attached.

For that reason, I find that the property sought to be released from attachment is not the property the applicant is in possession of. As such the applicant has not proved to the satisfaction of this court that he has interest in that property that merit protection of court. This application therefore fails and is dismissed with costs to the respondents.

I so order.

Dated this 22^nd day of January 2013.

Hellen Obura

JUDGE

Ruling delivered in chambers at 3.00 pm in the presence of the applicant and Mr. Ssemakula Mukiibi for the 1^st respondent. Counsel for the applicant and the 2^nd respondent were absent.

JUDGE