[1999] UGHC 30

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

## MISC. APPEAL NO. 230 OF 1998 (ARISING OUT OF EXECUTION PROCEEDINGS IN HCCS NO. 738/95)

REAMATON LTD. ..................................

### VERSUS

#### UGANDA CORPORATION CREAMERIES LTD ] 1. $2.$ HENRY KAWALYA] ....................... RESPONDENTS

## JUDGEMENT

This appeal was brought to contest the orders of the registrar to stay execution of the decree on grounds that there was an appeal pending in the court of Appeal. The Registrar made this order when a notice to show cause why a warrant of arrest should not issue had been served on the judgement debtor who, though represented by his advocate did not attend the proceedings in person. When the appeal came up for hearing Counsel for the judgement debtor argued that he was not ready to proceed. I allowed Counsel for the appellant to make his submissions and permitted Counsel for the Respondent to reserve his reply until another date. I also subsequently ordered the judgement debtor to attend court in person. On the day to which the reserved reply was adjourned neither Counsel nor the judgement debtor appeared. Counsel for appellant urged court to decide the matter and I made a ruling allowing the appeal. I now give

the reasons in this judgement on the basis of the evidence on record and the submissions of Counsel for the appellant.

L

The appeal was brought under 0.46 rule g of the CpR and Section 101 of the Civil procedure Act. Five grounds were set out in lhe notice of motion. However in argument ground one was abandoned. ln his brief submissions learned Counsel for the appellant Mr. Babigumira contended that the Registrar erred in law in making an order staying execution when there was no application for stay of execution before him. Further Counsel submitted thal in so doing the Registrar acted without jurisdiction. He cited the case of Dan I . VS-Bharwani (1932) 5 ULR 9. Learned Counsel further submjtted that the Registrar did not take into account the affidavit of the Court Broker to the effect that the ti e deecl deposited in court by the judgement debtor was not the property reflected in lhe valuation. He submitted that under order 19 rule 37 this affidavit ought to have been taken into account. Counsel further argued that the Registrar disregarded the evidence of the Court Broker on the act by the judgement creditor hrding away a vehicle subject of an attachment order. He contended that the Registrar erred in law when he refused to issue a warrant of arrest for the judgement debtor who had lodged in court a fake land tiile and hidden the vehicle from attachrne. t.

The background of this appeal is that a decree in excess of Shs 300 rnillion was entered against the defendant. He filed a notice of appeal but his appeal was terminated when on 9th July 1998 his notice of appeal was struck out by the Court of Appeal in Civil application No. 53 of 1997 (C ^A) ln an effoi-t to realise the decree the judgement creditor had sought the attachment of certain assets of the respondent. The respondent however deposited in court a land title for Block 212 Plol 533 Kyebando Kyaddondo, Kampala nhich was valued at Shs 280 million. A valuation Surveyor by the name of A. Sekidde filed an affidavit in Court as having carried out the valuation of the property. This affidavit was filed on 13rh May 1998 the same day a Memorandum of deposit of the land title was lodged in court.

As it turned out later, what the valuer purportedly valued was a neighbours high value development. The neighbour a Mr. lga later protested. An affidavit of the court broker who had sought to sale the land (a Mr Osinde) stated that rather than lga's high rise development the real plot whose title had been lodged in court had some lock up shops and funny looking structures. The result was that the land title deposited in court bore a false value, rahich was meant for a neighbouring development instead. The land was worthless as attachment in respect of such a large sum of money in the judgemeni

debt. The sale of lga's land would also not have been possible or if it had gone ahead would have cause untold miscarriage of justice if not fraud whereby lga would pay the judgement debtors liabilities.

As a result of this abominable act by the judgement debtor and his most unethical if not criminal valuer, the Appellant took out a notice to show cause rvhy the judgement debtor ought not to be arrested and held in civil prison. The only other security under the attachment was a vehicle wlrich the respondent had allegedly hidden from seizure According to Mr. Babigumira Ccunsel for the appellants it was only Mr. Kawalya's body left for attachment. When the notice was returned before the Registrar the judgernent debtor did not come personally but was represented by his advocate Mr. Oscar Kihika. The Registrar held that non appearance in person by the person named in the notice was not necessary if his Counsel were present. He also accepted Mr. Kibika's argument that an appeal was pending and ordered in effect a stay of the execution, hence the appeal. ln his affidavit in reply Mr. Henry Kawalya the second respondent deponed that he had come with clean hands as he deposited what he considered and was told was a good title as security. He attached a police investigation report (Annexture C) which arose from investigations into allegations of theft of land,

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forgery of a special power of attorney and conspiracy to defeat justice against hirn (Mr. Kawalya).

The Police report was signed by D/Sgt Echengu the investigating officer, Mr J. Musede D/Sp O/C Forgery and counterfeit Desk and D/SSP D O Odongpiny O/C National Fraud Squad and dated 19/5/99. ln paragraph 4 the report states that Mr. lga,s land had been fraudulen y valued and that it was different in location and development from the land whose title had been lodged in court. The report concluded that the value in lhe survey report on plot 533 do (sic) rrot conform with its developments, estate (sic). Mr. Kawalya was however exculpated and discharged by the police On his part, Mr. Kawalya by his affidavit pleaded a rnistake

Turning to the appear, rhave ailowed it on the ground that there was ample evidence that the fiduciary tiile lodged in court deflected the course of execution has shown an attitude of hide and seek he attend court tn person. proceedings. I ant also Further the appellant I clearly ordered that He did not attend even the appeal of the view that his personal attendance was required before the Registrar. He should have gone in the company of his advocate and not send the Advocate alone. But even without this it has tltrned out that his appeal had been struck out. The land tiile he deposited

was not only inadequate but grossly misleading and lodged in contempt of court. There was in short no reason why execution whrch was stayed by the Registrar cannot proceed unless the judgement debtor can show cause otherwise. ln the event I allow this appeal with costs. The order of the Registrar is set aside as execution should proceed. I also direct the Registrar to summon the second respondent to appear in person within seven (7) days from the date of this Judgement before the Registrar.

OKUMU WENGI R. O

AG JUDGE

24t6t99

### 30/6/99:-

Babigumira for appellant

Kihika for respondent

Rosemary Emeru Court Clerk

Judgement read in open Court in presence of above persons

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OKUMU WENGI R. O.

Ag. Judge

30/6/99