[2024] UGCommC 292

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA IN KAMPALA

#### [COMMERCIAL DIVISION]

## **MISCELLANEOUS APPLICATION NO.1278 OF 2023**

## **[ARISING FROM MISCELLANEOUS APPLICATION NO. 1657 OF 2022]** AND EMA NO 381 OF 2021

#### [ARISING FROM CIVIL SUIT NO 669 OF 2014]

## UGANDA DEBT NETWORK::::::::::::::::::::::::::::::::::::

#### **VERSUS**

# 1. EDWARD RONALD SEKYEWA T/A HUB FOR INVESTIGATIVE **MEDIA**

### 2. RUKUNDO EMMANUEL BETEKIRE T/A

# MILLENIUM LEGAL & RECOVERY ASSOCIATES::::::::RESPONDENTS

## **BEFORE: HON LADY JUSTICE ANNA B. MUGENYI**

## RULING ON PRELIMINARY OBJECTION

The Applicant brought this Application by way of a Notice of Motion under Article 126(2) (e) of the 1995 Uganda Constitution, section 33 of the Judicature Act, sections 34 & 98 of the Civil Procedure Act(CPA) and Orders 22 & 52 of the Civil Procedure Rules(CPR) seeking for various orders and declarations from this Court namely;

- 1) That the warrant of attachment issued by this court on the 7^th of July 2023 to the 2^nd Respondent be set aside for being irregular and contrary to the law. - 2) A declaration that the purported sale of the Applicant's motor vehicle registration No. UAW 281N Toyota Hilux double cabin was illegal and void for failure to follow principles and procedures relating to public auction and sales by or under court executions and the sale be set aside. - 3) An order that the execution of the decree vide EMA 381 of 2021 be set aside for being illegal and an abuse of the court process.

- 4) An order that the purported sale of motor vehicle UAW 28 I N be set aside as it was undervalued and based on a valuation report that was done by a person who does not possess a valid practicing certificate to practice as a valuer. - 5) A permanent injunction restraining the Respondents, their agents, or anybody from claiming, dealing, holding, or transferring the said motor vehicle. - 6) An order for immediate release and delivery of the motor vehicle UAW 281N to the Applicant. - 7) An order for punitive damages against the Respondent for illegal execution and interest thereon. - 8) Costs of the Application be provided for.

The Applicant was represented by ltzl/s Mwesige, Mugisha & Co. Advocates whereas the Respondent was represented by IWs Oasis Advocates.

During the hearing of this Application on the 16s of April 2024, counsel for the Respondent raised a preliminary objection thal the instant Application is barred in law as it should have been instituted as a suit and not a Miscellaneous Application.

It should be noted that this objection was never raised in the Respondent's pleadings and was only raised at the point of hearing upon which this court gave the parties timelines within which to file their submissions regarding the preliminary objection.

The Respondent was required to file his submissions by 22'd April 2024, the Applicants to file their reply to the submissions on the 29th April 2023, and the Respondent to file their submission in rejoinder by the 6th May 2024.

The Respondent did not file their submissions as required by the court to elaborate more on their point of law. I find that failure to file his submissions is a clear abuse of court process and time. With the new move to clear court case backlog, such actions cause unnecessary delays in the delivery of justice which goes against ^a litigant's constitutional right to a speedy trial.

Having said that, the law governing the filing of suits through a Plaint is provided for under Order 4 Rule I of the Civil Procedure Rules (CPR) which provides that every suit shall be commenced by way of a Plaint, and Order 6 Rule 3 of the CPR provides for instances where a suit and its particulars should be given thus:

"ln all ca.ses in which the party pleading relies on any misrepresentation, -fraud. breach o-f trust. will.ful de.fault or undue influence. and in all other cases in which particulars ma:t be necessary, the particulars with dates shall be stated in the pleadings."

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The above order does not mean that every suit shall be commenced by way of ^a plaint but implies that where the subject matter and mode of evidence and the nature of dispute ordinarily require specific pleading and proof, then a plaint would be the appropriate procedure.

In the instant case, the Applicant majorly seeks to set aside the warrant of attachment issued against it, execution of the decree, and the purported sale of the motor vehicle Reg. No. uAw 281N. The Applicant also seeks a declaration that the purported sale of the motor vehicle was illegal, a permanent injunction restraining the Respondents from dealing or transferring the said motor vehicle, and an order for the immediate release and delivery of the motor vehicle to the Applicant among others.

The Applicant does not explicitly include grounds such as misrepresentation, fraud, breach of trust, willful default, or undue influence which courd ordinarily require specific pleading and proofthus the need to file a plaint.

He, however, while stating his grounds for the Application alluded to purported facts that would require more particulars and evidence especially where he stated that the valuation report was done by someone who did not possess a valid practicing certificate, the sale was illegal, and void due to the Respondents' failure to follow principles and processes relating to public auction and sale.

Much as those purported facts seem to be those that would require more particulars, it is the considered view of this court that they are grounds that can be ably proved through affidavit evidence.

I therefore find that the Applicant did not use a wrong procedure for bringing his claim.

I hereby ovemrle this preliminary objection with costs to the Applicant.

HON. LADY JUSTICE ANNA B. MUGENYI

DATED...........r :. !..-1.,1. : \* ! ?, :1..................