[2023] UGHCLD 190

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA SITTING AT KAMPALA LAND DIVISION

# IYIISCELLANEOUS APPLICATION No' 257 OF 2023

### LADHA INDUSTRIES

LIMITED.. .... APPLICANT/JUDGMENT CREDITOR

#### VERSUS

BANK OF UGANDA RESPONDENT/GARNISHEE

#### AND

### DEPARTED ASIAN PROPERTY

CUSTODIAN BOARD... RESPONDENT/JUDGMENT DEBTOR

## BEFORE: HON JUSTICE TADEO ASIIMWE.

#### RULING

The application is made under section 33 and 39 of the Judicature Act cap 13, section 64(e) and 98 of the civil procedure Act and O.52 r 7,2 and ³ of the civil procedure Act seeking orders that; - 20

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- L An interlocutory order doth issue to reversing the order of the learned deputy registrar in HCMA No. 1674 of 2022 and thereby reinstating the garnishee order nisi vide HCMA No. 1674 of 2022 until HCMA No. 036 of 2022 is heard and disposed of. - 2. Costs in this application be provided for

The grounds upon which it is premised are contained in the notice of motion and the affidavit in support of the notice of motion but briefly that;-

- 10 l. The judgment creditor filed HCMA NIo. 1674 of 2022 in this court seeking for orders among others that all monies on account number 000080088000203 held by the garnishee for and or for the benefit of the judgment debtor be attached to answer the decree given in HCCS No.64 of 2019. - 15 2. On the 7th day of October 2022, the court granted a garnishee order nisi attaching all monies accruing from the garnishee to the judgment debtor to satisfy an outstanding decretal sum of Ugx 2, 445,730,000/:, Uganda shillings Two Billion Four Hundred Fortyfive million seven hundred thirty thousand only. - 3. The court also ordered the garnishee and the judgment debtor to attend court on the I 4th day of Octob er 2022 at 14:30 hours to show cause why they should not pay to the judgment cr tor a sum of

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2,445,730,000/: Uganda shillings Two Billion Four Hundred Fortyfive million seven hundred thirty thousand only, out of the monies held for and or doe benefit ofthe Judgment debtor.

- 5 4. When HCMA No. 1674 of 2022 was called for hearing with a view to make the garnishee order nisi-absolute, the garnishee opposed the motion. As such, the parties made oral submissions before court. The court reserved its ruling for the 8'h day of November 2022. - 5. On l5th day of November 2022 the court delivered its ruling and dismissed HCMA No. 1674 of 2022. To that end, the couft released the gamishee order nisi against the garnishee. 10 - 6. The Judgment creditor being dissatisfied with the decision of the learned registrar in HCMA No. 1674 of 2022 has filed an appeal against learned registrar's decision vide HCMA No. 036 of 2022 with a view to set aside the said decision-the said appeal is pending before court. 15 - 7. As a result of the learned registrar's release of the garnishee order nisi against the garnishee, there is an imminent risk of alienating the monies on account number 000080088000203 by the garnishee and the judgment debtor with the object of putting the said monies out 20

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of the judgment creditor's reach before HCMA No. 036 of 2022 is heard and determined and thereby, rending the said appeal nugatory.

- 8. That in the interest ofjustice that this court grants this application. - ⁵ The respondent never filed a reply but opposed the application basing on the law.

#### REPRESENTATION.

At the hearing the applicant was represented by Counsel Peter Allan Musoke together with Benard Mabonga while the 2nd respondent was represented by Counsel Godfrey Komakech. Both Counsel filed written submissions which I shall consider in this ruling.

## RESSOLUTION.

15 I have considered the Submissions of both counsel and the pleadings. The gist of the matter is that the applicant is seeking for an interlocutory order to reverse the order of the registrar in MA no. 1674 of 2022 where she vacated a decree nisi and discharged the garnishee Bank. He further seeks for an order to reinstate the garnishee order nisi unti determination of M/A no. 036 2022.

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Reversing the registrar's order to the previous status of a decree nisi is akin to a temporary mandatory injunction remedy where interests of justice demand that the status quo antebe restored.

In my considered view, this kind of remedy should not be easily granted. It should only be granted sparingly and with caution in exceptional deserving cases. It may also be granted where the respondent's activities are premafacie aimed at defeating the applicants remedy pending hearing and determination of the main case. 5

However, court should be careful though not to grant an order that will 10 have the effect of virtually deciding the suit without a trial (see cayne v. Global Naturul Resources PLC [19841 I All ER 22r.

Although court has discretion to grant such orders, the circumstances of ^a particular case and more specifically the extent of injury or inconvenience caused to the parties and the extent of injury or hardship that will be 1s caused should be considered.

This calls for balancing the interests of both parties in relation to the pending appeal in relation to a question whether the determination of the application at an interlocutory stage will amount to a final determination of the rights and obligations of the parties or not.

It is therefore necessary to determine whether in this applicati the court is justified in granting this remedy. \

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As per the pleadings, this application arises from a pending appeal no. 036 of 2022 against the decision of the registrar which vacated the order the applicant is seeking to be reinstated in this application.

5 According to the said appeal, the applicant seeks to set aside the registrar,s decision.

The question therefore is if this application is granted, whatthen will be left in the pending appeal for determination? The answer is that nothing will be Ieft in the said appeal. This is not allowed in interlocutory matters

whose effect is determining the merits of the main matter. The judgement debtor is a known government body capable of discharging its debts, Therefore the applicant will not be prejudiced if this application is not granted. 10

The possible remedy to the applicant is to persue the pending appeal or re-apply in other modes of execution. This is not a fit and proper case for granting the orders sought.

consequently, I find no merit in this application and the same is hereby dismissed with costs.

TADEO ASIIMWE JUDGE 6107t2023 20

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