[2024] UGCommC 343

#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

### **COMMERCIAL DIVISION**

**MISCELLANEOUS APPLICATION NO. 1605 OF 2024**

#### (ARISING FROM EMA NO. 286 OF 2024)

#### (ARISING FROM CIVIL SUIT NO. 270 OF 2024)

OGWANG OBIA GEOFFREY...................................

#### **VERSUS**

R. L. JAIN LIMITED ....................................

#### Before: Hon. Lady Justice Patricia Kahigi Asiimwe

#### **Ruling**

#### Introduction

- This application was brought under Section 98 of the Civil $\mathbf{1}$ Procedure Act, Order 22 Rules 56 & 57 of the Civil Procedure Rules seeking: - a) An order releasing the property and or land comprised in Kvandondo Block 221 Plot 2324 Land at Nalya from attachment and or execution by the Respondent. - b) And that costs of the Application be provided for. - The grounds of the application are stated in the Notice of Motion $2.$ and in the affidavit of Ogwang Obia Geoffrey who stated as follows: - a) That he is the registered proprietor of the suit land comprised in Block 221 Plot 2324 Kyadondo Land at Nalva

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having purchased the suit land in 2020 and has been in possession of the land since then;

- b) On 23^rd December 2023, the Respondent, through Bailiff M/s Kwesigwa & Co. Associates, evicted the Applicant on the basis of Execution Miscellaneous Application No. 286 of 2023 arising from Civil Suit 270 of 2020 between R. L Jain - Judgment Creditor versus Acen Ruth Joy - Judgment debtor. The warrant for attachment was in respect to Block 221 Plot 2212 & 2245 Nalya, a property completely different from his property; - c) The Respondent using threats and force evicted him from the property using armed security agencies; - d) That the bailiff misled the court by presenting an area schedule of a non-existent property to grab his property without any lawful basis; - e) His lawyers engaged a government surveyor through the Ministry of Lands who surveyed the suit land opened boundaries and ascertained that the Applicant is the registered proprietor of the suit land. The survey also revealed that the property comprised in Kyadondo Block 221 Plot 2212 & 2245 Nalya in the warrant of attachment does not touch his property. - 3. The Respondent filed an affidavit in reply sworn by Patricia Kongai, the Legal Officer of the Respondent who stated that: - a) The Applicant has no locus standi to institute this Application, the Application does not disclose a cause of action against the Respondent and the law of objector does not allow such an application.

$\mathcal{A}$

- b) The Respondent rightfully attached a *kibanja* sitting on Block 221 Plots 2212 & 2245 belonging to Ruth Joy Acheng. - c) Ruth Joy Acheng was in possession of the Kibanja situated on Block 221 Plots 2212 & 2245 as an equitable owner of the land at the time of attachment.

### Representation

$4.$ The Applicant/objector was represented by Gumtwero & Co. The Respondent was represented by Newmark Advocates. Advocates.

## Resolution: *Preliminary issue:*

- $5.$ Counsel for the Respondent raised a preliminary objection that the Applicant has no *locus standi* to institute this Application. - 6. In the case of Fakrudin Vallibhai Kapasi versus Kampala District Land Board Civil Suit No. 570 of 2015, locus standi was defined as the legal capacity of a person which enables a person to invoke the jurisdiction of the court in order to be granted a remedy. It has also been defined as the right to appear in court. (See **Dima Domnic Poro Vs Inyani Godfrey and Ano** Civil Appeal No. 0017 of 2016). - 7. In the case of Law Society of Kenya Vs. Commissioner of Lands and Others, Civil Case No. 464 of 2000, it was held that "Locus standi signifies a right to be heard, a person must have sufficiency of interest to sustain his standing to sue in court"

8. In this case, the Applicant's claim is that his property was wrongfully attached and attached a certificate of title as proof that he is the registered proprietor of the property which he claims to have been attached by the judgment creditor. I find that the Applicant has sufficient interest in the matter and therefore has *locus standi*. The preliminary objection is overruled.

#### **Issue**

$\mathbb{R}_{-}$

- The issue for resolution is whether the property comprised in $9.$ Kyadondo Block 221 Plot 2324 at Nalya should be released from the attachment. - 10. Order 22, Rule 27 of the Civil Procedure Rules provides that a decree for payment of money may be executed by the attachment and sale of a judgment debtor's property. - 11. Under Section 44(1) of the Civil Procedure Act, Cap 282, movable or immovable property belonging to the Judgement debtor, or over which or the profits of which the Judgement debtor has disposing power, which he or she may exercise for his or her own benefit, whether the property be held in the name of the Judgement debtor or by another person in trust for him or her or on his or her behalf; is liable to attachment. - 12. Order 22 Rule 55 (1) of the Civil Procedure Rules, empowers court to investigate a claim where an objection is made to the attachment of property in the execution of a decree on grounds that it is not liable to attachment. Under Order 22 Rule 56, 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. The objector has to show that they had an interest whether legal or equitable in the attached property on the date of attachment of the property. (See **Lucy Oker Lagol &**

## Others & Bonga Ronald Okech & Another Civil Appeal No. 0119 of 2019)

- 13. Order 22 Rule 57 of the Civil Procedure Rules, provides that where court finds that the property was not in possession of the judgment debtor at the time of attachment, the court shall make an order releasing the property. - 14. The Supreme Court in the case of **David Muhenda & 3 Other** Vs. Margaret Kamuje, SCCA No. 9 of 1999 held that in objector proceedings "The question to be decided is, whether on the date of the attachment, the Judgement debtor or the objector was in possession, or where the Court is satisfied that the property was in the possession of the objector, it must be found whether he held it on his own account or in trust for the Judgement debtor. The sole question to be investigated is, thus, one of possession of, and some interest in the property." - 15. In the case of **Muscle Construction Limited & Another versus** Muscle Group Limited Miscellaneous Application 1256 of **2024**, Mutesi J held that the goal of objector proceedings is to prevent property from being attached and the sale of property which was in possession of a $3^rd$ party on his or her own account or in the possession of the Judgement debtor on account of some other person. - 16. The question to address then is whether the Objector was in possession of the property at the time of attachment. - 17. The Applicant stated that he is the registered proprietor of Block 221 Plot 2342 and attached a copy of the land title to the affidavit in support of the application. The Applicant also stated that he was in possession of the suit property at the time of the eviction. The Respondent on the other hand stated that they attached the

a kibanja sitting on Plot 2212 and 2245 belonging to the judgment debtor and not Plot 2342. The deponent of the affidavit in reply attached a land sale agreement and stated that the judgment debtor acquired the land from a one Mugerwa Gonzaga. However, the document attached as Annexture B is a land sale agreement between a one Mugerwa Gonzaga the purchaser and Hajji Koronde and Namukasa Jalliat the sellers. The judgment creditor is not mentioned anywhere in the agreement. There is therefore no evidence on record to show that she is the *kibanja* owner of the suit property. Secondly, the land stated in the agreement is referred to as block 221. It does not indicate the Plot Numbers of the property.

- 18. In the case of Gorrepati Vs Grant Thornton Management and Another Miscellaneous Application 418 of 2023, Mubiru J held that while investigating possession, it may be actual or constructive. In actual possession, a person has direct physical control of a property, while in constructive possession, a person has both the power and the intention at a given time to exercise control over a thing, either directly or through another person. The objector claims that he was in possession of the suit property at the time of the eviction. The judgment creditor claims that the judgment debtor was in possession of the suit property at the time of the eviction. It is therefore not clear who was in possession of the property at the time of the eviction. - 19. The issue of what amounts to constructive possession was discussed in the case of Lucy Oker Lagol & Others and Bonga Ronald Okech & Another Civil Appeal No. 0119 of 2019. Justice Mubiru held that a person with constructive possession has the same rights as one with actual possession. The learned Judge further held that:

$\mathcal{P}$

A person who, although not in actual possession, knowingly has both the power and the intention at a given time to exercise control over a thing, either directly or through another person or persons, is in constructive possession of it.

The question always is whether the objector exercised dominion over the property. This is determined by examining available records disclosing the name of the person by whom or on whose behalf the property is occupied. This information may be gathered from documents used in the ordinary course of business as proof of possession or control of property, such as those which would enable the possessor of the document to transfer or receive the property thereby represented. A document which is used in the ordinary course of business as proof of possession would satisfy the definition as also a *document which would enable the possessor to possess the property.* (Emphasis added)

- 20. The land title attached by the Applicant to the affidavit in support of the application indicates on 18^th June 2020, the Applicant was registered as the owner of Block 221 Plot 2324. The previous owner of the property was the judgment debtor. As noted earlier the warrant of attachment was for Plots 2212 and 2245. The Applicant also attached a report from the Government surveyor who confirmed in the report that Block 221 Plot 2342 exists and that the Applicant is the registered proprietor. The Applicant has proved Plot 2324 exists and that he owns it. He therefore was in constructive possession of the suit property at the time of attachment. - 21. In conclusion, therefore the Application is allowed and it is ordered as follows:

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$\mathbb{R}$

- a) Land Comprised in Kyadondo Block 221 Plot 2324 land at Nalya is hereby released from attachment/execution. - b) The attachment and sale of land comprised in Kyadondo Block 221 Plot 2324 Land at Nalya is hereby set aside. - c) Costs are awarded to the objector.

# Dated this 10^th day of December 2024

. . . . . . . .

Patricia Kahigi Asiimwe Judge Delivered on ECCMIS