Kalenzi and Others v Verjee and Another (MISC. APPLICATION NO. 897 OF 2000) [2000] UGHC 52 (1 November 2000)

Full Case Text

#### THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT KAMPALA

## MISC. APPLICATION NO. 897 OF 2000

### (Arising out of H. C. C. S. No. 376 of 1998)

- ı. SIMON KALENZI $\overline{2}$ . JOHN KIRUTHU **:::::::::::::::::::::::: APPLICANTS** $3.1$ ANDREW GREGORY - $4.$ SHEIKH ABDUL ZAHIR

#### **VERSUS**

$\mathbf{1}$ . JOHN VERJEE **EXAMPLE 1::::::::::: RESPONDENTS** 2. SAMAKI INDUSTRIES (N) LTD

BEFORE: THE HONOURABLE LADY JUSTICE C. K. BYAMUGISHA

#### R U L I N G

This application by Notice of Motion was brought under the provisions of 0.19 rules 55, 56, 57 and 89 of C. P. R seeking orders that:

- The movable and immovable properties of the $1.$ Judgment/debtor particulars of whereof are set out in the affidavit of Simon Kalenzi be released from attachment. - $2.$ The costs of the application be provided for.

Two grounds were cited as a basis for the application namely that:

$\mathbf{1}$

$\mathcal{L}^{\mathcal{L}}$

- 1. The said properties are not liable for attachment as they are in the hands of the Applicant and Managers of the Judgment Debtor company for the benefit of Messrs, Debenture holders. East African Development Bank as as Receivers - 2 . M/S East African Development Bank have a fixed charge on the said properties. These grounds were supported by the affidavit of Simon Kalenzi and were opposed by two affidavits sworn by John Verj ee one of the Judgment Creditors.

When the me, counsel made spirited submissions regarding the matters raised in the application. matter came before on both sides

In order for the applicant to succeed in this application he has to satisfy the requirements of the law under which it was made. Rule 55 states that where any objection is made on the ground that such property is not liable to attachment the Court will proceed to investigate the claim. The burden is on the objector to adduce evidence to show that at the date of the attachment he had some ^interest in the property attached. Rule 57 provides that:-

"Where upon the said investigation the Court is satisfied that for the reason stated in the claim or objection such in the possession of the property was not, when attached,

in the time,;' it was his own account or as his own property but on account of some other person. the Court shall make an order releasing the property, wholly or to such an extent as it thinks fit f rodattachment. ti Judgment debtor or of some person in trust for him, occupancy of a tenant or other person paying rent to him or that being in the possession of the Judgment debtor at such so in his possession not on

In the matter now before Court, it is the case for the objectors that they by were appointed receivers the East- African Development Bank on the 3 0th May, 2000 and upon their appointment they took over possession and management of all the movable and immovable properties of Clovergen Fish and Foods Ltd. It is also being contended that on 5th day of July, Court bailiffs and policemen occupied the premises at the site in execution of the ■properties of Clovergen Fish and Foods Ltd. orders of attachment and sale of the movable and immovable

On the otherhand, the Judgment/Creditor John Verjee deponed in his affidavits that when the decree was taken for filing on the 8th June, 2000 at the Registrar of Companies Registry, there was Receiver/Manager for the Judgment/debtor. May, 1998. are in possession on behalf of East African Development Bank. He also averred that the legal mortgage lapsed when the lease on LRV 2144 Folio 16 Plot M 101 expired on 31st The affidavit is silent as to whether the Receivers no notification of \*the appointment of a

set out in where the Court said: The guiding principles in cases of this nature were the case of Herilal & Co Vs Buganda Industries Ltd [1960] EA 318

ii F possession, the Court is satisfied that 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 Judgment debtor. The sole question to be investigated **?** Questions of legal right and except so far as they may affect To that extent the title may be part of the investigation. But ultimate questions of trust or complicated questions like the benani nature of a transaction are not within the scope of the inquiry and are not intended to be gone into." debtor, or some other person. The -question to be investigated is whether at the date of the attachment the Judgment debtor or the objector was in the is thus one of possession, title are not relevant, the decision as to account of or in trust for the Judgment or where

Security Fund(unreported) . This decision was quoted with approval by Wambuzi C. J in Civil Appeal No. 1/99 - Transafrica Assurance Co Ltd Vs National Social

in law the agents of the the Since there is not dispute about possession of Plot M 101 Entebbe by the Receivers the question is whether they are in possession in account of the Judgment debtor or on behalf of someone else. Although;. I agree that receivers are debtor company, they hold the property to pay the debts \$

• 1.

company. the lapsed is not The question of whether the mortgage scope of the investigations. according to appointed by East Africa Development In the instant case, the receivers are affidavit of Kalenzi after they Bank as legal mortgagees. within the in possession were duly

that receivers counsel for the respondents It was submitted by With respect I do not agree, nature brought by anyone Objector proceedings are by their very in possession objecting to the attachment. cannot bring an action in interest in the attached property. their own names as they have no

and order the release of attachment I will therefore allow the application the property whose particulars were given in the annextures from

C. K.

JUDGE

*VIItil'*

*I*

## **REPUBLIC OF UGANDA**

# IN THE HIGH COURT OF UGANDA AT KAMPALA

## MISC. APPL. No. 897 OF 2000

# (Arising out of High Court Civil Suit No. 376 of 1998)

| SIMON KALENZI 1. | ] | |--------------------------------|---| | JOHNKIRUTHU 2. | ] | | ANDREW GREGORY 3. | ] | | SHEIKH ABDUL ZAHIR 4. | ] |

## VERSUS

**]** 1. JOHN VERJEE 2. SAMAKI INDUSTRIES (N) LTD. ]

## **ORDER**

THIS APPLICATION coming up for final disposal before Hon. Lady Justice C. Byamugisha and delivered by The Deputy Registrar of the High Court His Worship Ruhinda this 1st day of November 2000, in the presence of William Byaruhanga Counsel for the Respondents, and Peter Walubiri for the Applicants.

## **IT IS HEREBY ORDERED** as **follows:**

- **I.** That the movable and immovable properties of the Judgment Debtor be released from attachment. - **2.** The costs ofthe Application be provided for by the Respondents.

**I** GIVEN day of ider my hand and the Seal of this Honourable Court this .'...2000.

**DEPUTY REGISTRAR**

Extracted By: Kasirye, Byaruhanga & Co. Advocates, 33 Clement Hill Road, P. O Box 10946, Kampala.

*<5 \* I! • o*