[2003] UGCommC 134

# THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL COURT)

MISCELLANEOUS APPLICATION NO. 655 OF 2001

(Arising out of HCCS No. 60 of 2001)

| APPLICANT/OBJECTOR | |--------------------| | | | PLAINTIFF/JUDGMENT | | |

- 1. STEPHEN TINDYEBWA - 2. GOURMENT INSTITUTE OF ENVIRONMENT HOTELS AND BUSINESS MANAGEMENT LTD.. DEFENDANTS/JUDGMENT DEBTORS/RESPONDENTS

## BEFORE: THE HONOURABLE MR. JUSTICE JAMES OGOOLA

#### **RULING**

The present application was brought by way of objector proceedings under Rules 55, 56 and 58 of Order 19 of the Civil Procedure Rules ("CPR"). Learned counsel for the Respondents opposed the application on three grounds. **First,** that the Objector's claim to ownership of the suit property was invalid, in as much as (a) the purchase price purportedly paid by the Objector was overly low (i.e. a mere Shs.30m/- as against 60m/- offered by the Judgment Creditor, or even 75m/ established by the Government Valuer as the true price of the property). All this shows some "hidden motive" for the purported sale of the property; or some "fraudulent intent" between the Judgment/Debtor and the Applicant; or even "collusion" between the Judgment/Debtor and the Judgment/Creditor. Second, learned counsel submitted that in the event that Court upholds the alleged sale of the property, then the purported transfer of that property to the Objector should be found to be void for lack of proper attestation, contrary to section 155 of the RTA. In this regard, counsel laboured two points: (i) that both the Judgment/Debtor and the Judgment/Creditor denied ever knowing one, Eric Wabwire, who

I

allegedly witnessed the transfer forms; and (ii) that in any case Wabwire's failure to appear in Court indicates that he is a fictitious person and not the "civil servant" that is required by law to attest such land transfer.

As regards the above two arguments, Court can be extremely brief. With the greatest respect, these arguments are totally misplaced. It is now trite law that in Objector proceedings, the one and indeed *only* question to be decided is one of possession (and not ownership). **In TransAfrica Assurance Co. Ltd. v. NSSF, S. Ct. Civil Appeal No. ¹ of 1999,** WAMBUZI, CJ upheld the decision of LEWIS, **J** in **Harilal & Co. v Buganda Industries Ltd 1960 EA 318, at p. 319** thus:

*" the question to be decided is whetheron the date of the attachment, the judgment- debtor or the objector was in possession, or whether the court is satisfied that the property was in the possession ofthe objector, it must be found whether he held it on his own account or in trust for the judgment-debtor. The sole question to be investigated is, thus one ofpossession."* [emphasis added]

It is evident that the above two submissions of learned counsel for the Respondent are arguments not of possession, but of ownership and of the validity or invalidity of the purported sale of the property to the Objector. Regarding such arguments, the above-quoted case explicitly states that:

*"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 oforin trust for the judgment-debtor or some otherperson. To that extent the title may be part ofthe inquiry. "*

Even more importantly, learned counsel's efforts to characterize the purported sale as being somehow tainted by a hidden "motive", "collusion" or even "fraud", are all misplaced at this stage of the proceedings - in as much as the **Harilal** case *(supra)* holds that:

*".. ultimate questions oftrust, or complicated questions like the benami nature of a transaction are not within the scope of the inquiry and are not intended to be gone into. "*

Indeed, the above point was made even more emphatically by Justice SADASIVA AYYAR in **Ramaswami Chetty v. Mallapa** as follows:

' *"in summary proceedings held in accordance with certain statutory provisions intended for speedy disposal of 'emergent' disputes, the court maybe prohibited from going into complicated questions of title or investigating complicated questions like fraud, trust and so on, while giving the party defeated in the summary inquiry, the right to have the whole matter and all the questions which are in dispute fully investigated in an Ordinary regular suit ... the Court is bound to order the release of the attached property ifit finds possession in the claimant on his account, even if there is title and disposing power remaining in the judgment-debtor."*

It is evident from all the above that Court must disregard the two arguments raised by learned counsel for the Respondent. They are not only arguments concerning the **ownership** of and title to the suit property, they also raise **complicated** questions of validity of title transfer, collusion, hidden motives and even fraud - regarding which this Court is clearly excluded from investigating or inquiring into.

The above analysis leaves only one question, that of **possession. In** this regard, Order 19, rule 56 of the CPR provides that:

*"The claimant or objector shall adduce evidence to show that at the date of attachment he had some interest in or was in possession* of the property attached." [emphasis added]

As is evident, the above provision calls on the Objector to prove any one of two elements - namely, some interest in the property, or possession thereof at the time of the attachment. In the instant application, the Objector averred that after buying the property (i) he deposited his building materials and certain containers (with contents therein) onto the site of the property; (ii) he instructed his architects to draw building plans with a view to developing the site. ^I am satisfied that these were credible indicia on the part of the Objector to establish his possession of the suit property - and particularly so as that particular site was ^a virgin, undeveloped plot. Far from denying these facts, Respondent merely challenged the speed at which the building materials were ferried to the site and the hurry with which the architectural plans were drawn up. However, Court is not prepared to impute from this speed or hurry any fraud or *mal fide* intentions on the Objector's part. In this regard, Court also agrees with the submission of the learned counsel for the Objector to the effect that although at the time of its attachment the property was still registered in the Judgment/Debtor's names, that cannot be detrimental to the claims of the Objector, nor can it be conclusive evidence of the ownership of that property by the Judgment/Debtor. This averment is directly supported by the judgment of Lady Justice MUKASA-KIKONYOGO, JSC (as the learned DCJ then was) in the **NSSF** case *(supra),* which held that:

*''the fact that the disputed property was still registered in the name of the Judgment Debtor was not detrimental to the objector's claim nor conclusive evidence of ownership by the Judgment Debtor."*

Identical sentiments were expressed by Justice SADASIVA AYYAR in the **Mallapa** case *(supra)* to the effect that:

*"the Court is bound to order the release of the attached property if it finds possession in the claimant on his account, even if there is title and disposing power remaining in the judgment-debtor.''* [emphasis added]

Applicant. The suit property bua Road Nakasero, Kampala) must be released The costs of this application are awarded to the In the premises, the present application is hereby granted. (LRV 2899, Folio 12 Akii forthwith from attachment.

Ordered accordingly.

# 13/02/03 James Ogoola JUDGE

# DELIVERED IN OPEN COURT, BEFORE:

Bitaguma, Esq - Counsel for the Applicant/Objector Arthur Mukwatanise, Esq - Counsel for the Respondent/Judgment-Creditor J. M. Egetu - Court Clerk.

> 13/02/03 James Ogoola JUDGE