[2025] UGHC 428

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT TORORO MISCELLANEOUS APPLICATION NO.41 OF 2024 (ARISING FROM MISC. APPLN NO.026 OF 2024) (FORMERLY MBALE HCCS NO.041 OF 2010] TORORO DISTRICT LOCAL GOVERNMENT:::::::::::::APPLICANT VERSUS**

## **MULOWOOZA KAYONDO :::::::::::::::::::::::::::::::::::::::RESPONDENT RULING**

### **BEFORE: HON DR. JUSTICE HENRY 1. KAWESA**

- 1. This application was brought by way of a notice of motion under Section 98 of the **Civil Procedure Act Cap.282; Order 43 of the Civil Procedure Rules S. I 71-1; and Rules 6 and 42 of the Judicature (Court of Appeal) Rules**. It seeks orders that: - a. Execution in Civil Suit No.41 of 2010 be stayed pending the hearing and determination of Civil Appeal No.322 of 2021 pending before the Court of Appeal, - b. A declaration that the attachment of the applicant's accounts is illegal and unconstitutional. - c. Costs of this application. - 2. The application is supported by the affidavit deposed to by Mr. Abulu Mark, the Chief Finance Officer, of the applicant; and is opposed through the affidavit in reply deposed to by the respondent.

#### **Representation**

3. The applicant is represented by **Counsel Joshua Serugyendo from the Attorney General's Chambers, Mbale Regional Office**; and the respondent is represented by **Counsel Ibrahim Kagwa from M/S Nyanzi, Kiboneka &**

**-1**

**represented by Counsel Ibrahim Kagwa from M/S Nyanzi, Kiboneka & Mbabazi Advocates**. Counsel filed written submission, which I have considered in this ruling. The issues raised by the Counsel for the applicant are;

- l. Whether the applicant's Account Numbers 9030006249336 and 9030005906767 are liable to attachment? - 2. Whether this court has the power to attach the applicant's monies held in Account Numbers 9030006249336 and 9030005906767 by the garnishee? - 3. Whether the instant application for interim stay is competent before this court? - 4. What remedies are available to the parties?

#### **Observations**

- 4. Having carefully studied the pleadings and submissions of the applicant's Counsel, I observed that although the application is, by form, seeking stay of execution in form, the applicant is, in substance, objecting to the attempted attachment of its accounts by a garnish order. This is also evident from the issues above, proposed by Counsel. - 5. The applicant's Counsel cited **Administrator General vs Kakooza Umaro & Anor HCMA No. 11 of 2017 a decision by Madrama J.,** (*as he then was*) with facts similar to those of the matter at hand. The said decision arose from an application, also, for stay of execution, in which issues similar to I and 2 above were discussed at length. It is likely that Counsel was influenced by the said decision in choosing the procedure of the instant application. Interestingly, **Madrama J.,** (*as he then was*), in that decision, expressed that the applicant had adopted a wrong procedure; and that he ought to have opted for objector proceedings (reference is made to page 21, paragraph I of the said decision). Nevertheless, he went ahead and granted the application on ground that an illegality had been brought to the court's attention by the applicant.

6. In this case also, I believe that the applicant ought to have moved court by way of objector proceedings, and not applying for stay of execution. That notwithstanding, the applicant raises a point of illegality which ought to be considered, since overrides all questions of pleadings (**Makula International vs. His Eminence Cardinal Nsubuga & Other 119821 1-ICB 11**). Therefore,

I shall only entertain the application for only that cause, otherwise I would have dismissed it.

- 7. Going forward, I shall only restrict myself to the applicant's objection about the legality of attachment of its Account Numbers 9030006249336 and 9030005906767 by garnishee. In that regard, it is obvious that only issues I and 2 are relevant. However, I note that one of them is a duplicate of the other. Therefore, issue 2 is hereby struck out under **Order 15 R.5(2) of the Civil Procedure Rules**; and accordingly remain with the following issues: - a. **Whether the applicant's Account Numbers 9030006249336 and 9030005906767 are liable to attachment?** - b. **What remedies are available to the parties?**

#### **Determination of the Issues**

- 8. **Whether the applicant's Account Numbers 9030006249336 and 9030005906767** are liable to attachment? I note that the former account number is named, General Fund Collection Account; and the latter is the Cash Operational Account. - 9. It is not in dispute that the accounts have statutory transfers, implying that their monies are payable out of the consolidated fund under the relevant statutes. - 10.1 start by appreciating the reasoning of Madrama J., (as he then was) in *Administrator General vs Kakooza Umaro & Anor, supra*, to the effect that money held by a trustee for the benefit of a beneficiary cannot be garnisheed for the benefit of a judgment creditor for purposes of satisfying a debt incurred by

the trustee in a personal/individual capacity. The basis of the reasoning is that "*the debt must be one which the judgment Debtor could himself enforce within the jurisdiction of his own benefit, for the Creditor acquires no greater rights than those of the Debtor*" (*See* **Halsbury's laws of England (4th Edition) Vol.**

**17, para 529; Holtby vs. Hodgson Bateson (1889) 24 QBD, 103 at page 108**, by **Lopes, CJ**). Since that is the point from which Counsel for the applicant proceeded, it is his argument that the applicant, albeit being a judgment debtor, is a public trustee; and that the funds it holds on the said account numbers are not liable to attachment for the benefit of the respondent.

- 11. The applicant's Counsel went to ahead and cited many authorities in support of his argument, such as; **Articles 191(1)(3), and 193(1) of the Constitution of the Republic of Uganda, 1995; Sections 3, 15, 29(2) (b) and (3)(a), 30(1) of the Public Finance Management Act Cap. 171; Section 7(2) of the Local Government Act Cap.243; Section 44(1)(i) of the Civil Procedure Act Cap. 282; Section 19(4) of the Government Proceedings Act; John Imaniraguha vs Uganda Revenue Authority HCMA No.2770 of 2023; and Nampongo & Anor vs Attorney General Constitutional Petition No.43 of 2012**. - 12. The response by the respondent's Counsel to the above submissions is merely a fait accompli. He clearly conceded to his colleague's argument that the said accounts cannot be garnished. Nevertheless, he also referred to paragraphs 6, 7, and 8 of the affidavit in support and argued that if indeed Account Number 9030006249336 has monies belonging to a trust, this court can lawfully trace their source; and that all funds that shall be treated as trust and statutory funds can be severed from other funds to satisfy the decretal sum. He submitted that this position was addressed in **Boscawen vs Bajwa (1996) WLR 328**. Further, he argued that once non-trust and statutory funds are established, then court can lawfully allow the respondent, through the garnishee, to satisfy the decree.

- 13. However, whereas I agree with the latter submissions, I do not conceive its significance, since there is no evidence upon which court can trace and severe trust from non-trust funds on Account Number 9030006249336. - 14.1n conclusion therefore, I find, in the absence of evidence to the contrary, that the funds on Account Numbers 9030006249336 and 9030005906767 are plainly held by the respondent in trust for the public, without need of entering into the details of the statutory authorities cited by the applicant's Counsel. Going by the position in **Administrator General vs Kakooza Urnaro & Anor**, *supra*, which I started off with, I agree with Counsel for the applicant that attaching the funds in the said accounts would be illegal. Accordingly, I find the issue in the negative.

#### 15.**1ssue 2: What remedies are available to the parties**?

16. The applicant sought for a declaration that the attachment of the applicant's accounts is illegal. I find this as the only proper remedy to issue in this application, and therefore granted accordingly.

17. Lastly, each party shall bear own costs.

I so order.

**16/04/2025**

In the Presence of: