Mariam Nassali v Angel K.K Sewamala (Miscellaneous Application 468 of 2002) [2002] UGCommC 26 (18 December 2002)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL COURT) MISCELLANEOUS APPLICATION NO. 468 OF 2002 (Arising from Civil Suit No. 1096 of 1999)

| MARIAM<br>NASSALI | APPLICANT/OBJECTOR | |---------------------------|------------------------------| | VERSUS | | | ANGEL<br>SEWAMALA<br>K. K. | RESPONDENT/JUDGMENT-CREDITOR |

BEFORE: THE HONOURABLE MR. JUSTICE JAMES OGOOLA

RULING

This is an Objector proceeding brought by Ms Mariam Nassali (the "Objector") against Mr. Sewamala, in whose favour judgment in an earlier suit (HCCS No. 1096/99) was entered (herein referred to as the "Judgment Creditor"). The application is brought under 0.19,rr.55, 57 and 58 of the Civil Procedure Rules (CPR), and is supported by an affidavit of 05/08/02 deponed by the Objector. It seeks a Court order to release from attachment certain property, comprised in Kibuga Block 11, Plot ¹¹²² at Kabowa, Kampala - on the grounds specified in the Objector's affidavit, namely:

- (a) That the Objector is the *bona fide* purchaser of the suit property, and the duly registered owner thereof - as evidenced by the Certificate of Title (Annexture "A" to that affidavit). - (b) That she purchased that property from the former registered proprietor, one Mohammed Sewankambo (the Judgment Debtor in the above HCCS 1096/99), who had mortgaged the property to GREENLAND BANK as security for a loan, which loan he failed to repay. - (c) That upon GREENLAND BANK'^S liquidation, the Liquidator (Bank of Uganda) threatened to sell the suit property by public auction; whereupon the Objector salvaged the property by repaying Sewankambo's loan, and the Bank of Uganda released the mortgage on the title to the suit property. Thereafter, the Objector became the registered proprietor of that property (on 23/10/00).

(d) That on 11/07/02, the Objector learnt that the suit property had been attached pursuant to an order of attachment under HCCS No. 1096/99 in favour of the Respondent, who was a creditor of Mr. Sewankambo, in a completely different transaction from the one involving the above GREENLAND BANK loan and mortgage.

In his oral submission, learned counsel for the Objector contended that the Objector has never been a party to Respondent's suit No. 1096/99 against Sewankambo; and had never had any other dealing(s) with the Respondent. Conversely, ever since the transfer by Bank of Uganda of the title to the suit property into Respondent's names, Mr. Sewankambo (the Judgement Debtor in HCCS No. 1096/99) no longer has any proprietary interest in the suit property. Accordingly, counsel concluded, the attachment of the Objector's property was wrong. The property ought to be released from the attachment.

In his affidavit-in-reply, the Respondent challenges the date on which the Objector transferred the suit land into his names. The Respondent depones that a careful search of the Land Office reveals that by 6/08/02 (the date of this instant application) the Objector was not the registered proprietor of the suit property. Moreover, the Objector purportedly transferred the land to a third party only after the issuance of the Warrant of Execution, and after the attachment of the property by the Court Bailiff. Such a transfer cannot be *bona fide* and the Court should not condone it. Lastly, the Respondent deponed that Mr. Sewankambo was not a borrower from GREENLAND BANK and, accordingly, the Objector could not possibly have "salvaged" the title as alleged.

In his submissions, learned counsel for the Respondent emphasised that indeed at the time of filing this application (i.e. on 6/08/02), a Mr. DAN KUGAMBWA (and not the Objector) was the registered proprietor of the suit property - as evidenced by the entry on the Land Title showing Kugambwa's ownership with effect from 30/7/02 (that is one whole week before the filing date of this application). Secondly, learned counsel contented that the alleged repayments by the Objector of Sewankambo's bank debt are false in as much as the deposit slips indicate that the deposits were credited to the Savings Accounts of either "Nassali Miriam" or of "POPCO" - rather than to the Loan Account of Sewankambo. Thirdly, on the transfer form (Annexture "G" to Respondent's affidavit in reply), the Objector stated "natural love and affection" to be the consideration for the transfer of the suit

property from Sewankambo to the Objector. This is totally at variance with the Objector's sworn affidavit to the effect that she "purchased" that land from Sewankambo through repayments of Sewankambo's outstanding bank loan from GREEN LAND. Fourthly, learned counsel contended that the Objector has no locus standi to make this application in as much as she ceased to have any interest in the suit property on 30/7/2002 (the date of Kugambwa's registration as proprietor of that land).

In its ruling, this Court will consider the question of locus standi first. We can be extremely brief on this point. It is trite law that in Objector Proceedings under 0.19, rr.55, 56 and 57 of the CPR, the crucial and, I dare say, dispositive consideration is one of possession of the property at the time of the attachment. If the Objector was in possession $-$ or if some other person was in possession on account of the Objector – then the property should be released from attachment - see, for instance, Joseph Mulenga v FIBA (U) Ltd, High Court M. A. No. 308/96; see also r.57 of 0.19 of the CPR. In the instant application the Objector stated quite categorically in paragraph 12 of her affidavit in support that:

> "... at the time the attachment order was issued I was in possession and active control of the property."

Moreover, in paragraph 9 of the same affidavit, the Objector deponed that:

"... the Defendant/Judgment Debtor in the said suit [i.e. Mr. Sewankambo] no longer has any interest whether legal or equitable in the said property given the fact that I took over ownership after completion of payment of the loan monies to Bank of Uganda and I am now the registered proprietor of the property."

The fact or assertion of the Objector's possession of the suit property at the time of the attachment, was never contradicted or even challenged in the Respondent's affidavit in reply. Indeed, while counsel for the Objector stressed the same point in his submissions, counsel for the Respondent never contradicted that assertion. In light of the above, Court finds as a fact that the Objector was in possession of the suit property at the time of the attachment of that property. Accordingly, not only did the Objector have locus standi to

bring this application; she is indeed for that reason, entitled to an order of this Court releasing the property from attachment.

The above finding and conclusions are dispositive of the matter at hand. Nonetheless, for the sake of completeness, ^I will also address the two issues raised by the Respondent.

First, Respondent challenged the genuiness of the Objector's repayments of Sewankambo's bank loan, in as much as the deposit slips seemed to credit the Savings Account of either the Objector herself or of POPCO - rather than the Loan Account of Sewankambo. The Objector's response to this was an admission that indeed some of the deposit slips had that effect, but that a large number of other deposit slips did repay Sewankambo'^s loan by crediting POPCO'^s non-Savings Account - which Account constituted Sewankambo's Loan Account. ^I find this explanation quite reasonable. Moreover, learned counsel for the Respondent did not in any way whatsoever contradict, or even challenge, that explanation. In the event, the Objector appears to have raised here a triable issue that should, in all fairness, be heard on its merits.

Second, Respondent challenged the genuiness of the entries on the Land Title to the suit property - in particular regarding the entry thereon of Mr. Dan Kugambwa as the proprietor of the suit land starting from 30/07/02. Whether this challenge is or is not a viable argument must be heard on its merits. However, this application, being an application for Objector proceedings, is not the appropriate occasion for consideration of the merits of that issue - as the challenge is to the ownership of the property (and not its possession). The Respondent is free to sue on issues of ownership. As is made abundantly clear, by r.60 of 0.19 of the CPR which states that:

> " *Where a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute. "* [emphasis added]

It is quite clear that the scheme of our rules of procedure (rules 57 and 58 of 0.19 of the CPR) recognise possession as the crucial consideration for release from attachment in objector proceedings, while other rules (e.g. rule 60 of 0.19) govern other issues in dispute (such as the rightful ownership of the disputed property). Accordingly, whether the alleged

transfer of ownership of the suit property from Sewankambo to the Objector - including the purported registration of Dan Kugambwa, are genuine or a fraud, and whether or not the Objector and Sewankambo have conspired to defeat the course of justice - are maters that the Respondent is free to sue the Objector or anybody else, outside the instant application.

In the result, the application is granted. The property comprised in Kibuga Block 11, Plot 1122 at Kabowa shall and is hereby released from attachment. The costs of this application are awarded to the Objector (against the Respondent).

Ordered accordingly.

18/12/02 James Ogoola JUDGE

DELIVERED IN OPEN COURT, BEFORE:

Mr. Joseph Matsiko SSA (brief for Kiyemba Mutale Esq) - Counsel for the Respondent J. M. Egetu - Court Clerk

> 18/12/02 James Ogoola JUDGE