Abdul Kadir Sempa v Bwanika & Anor (Miscellaneous Application 207 of 2005) [2002] UGCommC 27 (17 July 2002)

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL COURT) MISCELLANEOUS APPLICATION NO. 207 OF 2002 (Arising from Civil Suit No. 256 of 2001)

## ABDUL KADIR SEMPA PLAINTIFF/JUDGEMENT-CREDITOR VERSUS ALAMANZANI BWANIKA... DEFENDANT/JUDGEMENT-DEBTOR AND FAUSTIN K. NKUNDA OBJECTOR/APPLICANT

## BEFORE: THE HONOURABLE MR. JUSTICE JAMES OGOOLA

## RULING

seeking Court's orders: This application was brought under 0.19, rr. 55, 56 and 86 of the Civil Procedure Rules, and section 101 of the Civil Procedure Act,

the extent that the (a) to release from attachment the suit property, on Block 11 Plot 1, Kabula County, Bugasa, to Applicant is a *bona fide* occupant thereon;

(b) to set aside the intended eviction of the Applicant.

Having listened to the submissions of both counsel in this application, <sup>I</sup> am satisfied that:

- the Objector is a *bona fide* occupant of the suit land; - he was not a party to HCCS No. 256/01. That case came to his notice only recently, when an eviction order was issued and attempts made to evict him; - he bought the land in 1974, and has occupied it from then to today (a period of over 33 years); - he has made substantial developments on that land having built a house, church and valley dams thereon.

On the basis of all the above, Court is satisfied that the Objector has indeed proved his possession of the suit land.

<sup>I</sup> turn now from the facts of this case to the applicable law. The law on Objector proceedings has long been established. The sole question to be investigated is one of possession. Questions of legal right and title are not relevant - except in so far as they may affect the decision as to whether the possession is on account of or in trust for the judgment debtor or some other person - see ALLEN <sup>J</sup> in the case of **Edward Khakale t/a New Elgon Textiles v Wadali, and in the matter of Eri Mugunjo [1976] HCB 30.**

Similarly, KATO J (as his Lordship of the Supreme Court then was) held in Kiwalabye v **Uganda** Commercial Bank that:

- while Court, while considering Objector Proceedings, is concerned with the possession of the property and not title. - Objector Proceedings brought under 0.19, rr. 55, 56 and 57, invite Court to decide the propriety of the execution of a given judgment. They do not concern the final rights

between the parties - which rights are considered under r.60 of the same Order 19 of the Civil Procedure Rules.

In holding as he did, KATO J cited with approval the two earlier cases of:

**(i) Harilal & Co. v Buganda Industries [1960] EA 318;** and

**(ii) Chotabai M. Patel v Chotabai M. Patel [1958] EA 743.**

In view of the facts and the law of this instant case, Court hereby grants the application, and makes the **orders** sought, namely:

- (1) an order releasing from attachment the property in Block 11, Plot 1, Kabula County, Bugasa; and - (2) an order setting aside the eviction of the Applicant from the above land.

In addition, the costs of this application are hereby awarded to the Applicant.

**Ordered accordingly.**

17/07/2002 James Ogoola JUDGE

DELIVERED IN OPEN COURT, BEFORE:

Ernest Kalibala, Esq – Counsel for the Applicant Suleman Musoke, Esq – Counsel for the Respondent J. M. Egetu – Court Clerk

> James Ogoola **JUDGE** 17/07/2002