Matovu v Exim Bank Uganda Limited & 4 Others (Miscellaneous Application 1933 of 2024) [2024] UGCommC 318 (8 October 2024)


# **IN THE HIGH COURT OF UGANDA SITTING AT KAMPALA COMMERCIAL DIVISION**

Reportable Miscellaneous Application No. 1933 of 2024 (Arising from Civil Suit No. 0948 of 2022)

In the matter between

**GRACE MATOVU APPLICANT**

**And**

- **1. EXIM BANK UGANDA LIMITED** - **2. TEOPISTA & JESUS HOLDING LIMITED** - **3. NABBALE TEOPISTA** - **4. MARIA NTENGANYI** - **5. MUTESASIRA ASSOCIATES & COURT BAILIFFS RESPONDENTS**

**Heard: 7th October, 2024. Delivered: 8th October, 2024.**

*Civil Procedure - Objector applications - a mortgaged property may still be attached and sold to satisfy the judgment debtor's obligations - The existence of an encumbrance over land of a judgment creditor is not an impediment to a sale in execution of a decree, provided it proceeds subject to the encumbrance.*

# **RULING**

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

**STEPHEN MUBIRU, J.**

#### Introduction:

- [1] The applicant is a beneficiary of the estate of the late Kevina Ajeru Nataya whose estate comprised an unregistered kibanja interest located on part of the land now in issue. It is the applicant's case that her late mother had constructed some commercial abuilding thereon, from which her family derived sustenance before her death. Before her demise, the late Kevina Ajeru Nataya had executed an agreement of purchase of the registered interest of the portion under her possession, from one of the beneficiaries of the estate of the then registered proprietor of the land, the late Kristina Nabaggala Kawalya. Following the demise of her mother, the applicant lodged a caveat on the title on or about 30th May, 2008. - [2] That caveated interest was the subject of High Court Civil Suit No. 243 of 2013 where the applicant was named as the plaintiff and the 3rd respondent as the defendant together with five others. In that suit, the applicant sought to assert her claim to that potion of the land, Pending the hearing of the suit, she on 27th June, 2013 obtained a temporary injunction restraining the respondents from evicting the applicant, her siblings, the rest of the family and her tenants from that portion of the land now in issue. - [3] The applicant was nevertheless dispossessed of the land when the 3rd respondent purchased the registered interest from the estate of the late Kristina Nabaggala Kawalya, the then registered proprietor, and compromised with her tenant M/s John Rich Cheap Stores Limited. Judgment was delivered in her favour on 24th September, 2015 declaring the applicant the rightful owner of an unregistered kibanja interest on the land. In that judgment, the Commissioner Land Registration was directed to cancel the 3rd respondent's title to the extent of that interest, the 3rd respondent was directed to hand over the commercial buildings on the land to the applicant or else be evicted therefrom, and a permanent injunction was issued restraining the 3rd respondent from interfering with the applicant's quiet enjoyment of that portion of the land.

- [4] The respondents appealed the decision under Court of Appeal Civil Appeal No. 236 of 2015 which since then is pending determination. The 3rd respondent on or about 24th October, 2015 obtained an order of stay of execution of the decree in H. C. C. S. No. 243 of 2013 pending the disposal of C. A. Civil Appeal No. 236 of 2015. The order was modified on 27th January, 2016 permitting the 3rd respondent to deposit a title deed to land comprised in Kyadondo Block 216, Plor 31 12, at Buye, in Court as security for due performance of the decree. - [5] On or about 12th September, 2018 the 2nd respondent company obtained a loan from the 1st respondent secured by the title deed to Kyadondo Block 244 Plot 541 at Kisugu-Kabalagala. The 2nd respondent thereafter created two further charges on the same property by the same bank. Upon the 2nd respondent's default, the 1st respondent on 26th October, 2022 filed H. C. C. S. No. 948 of 2022 against the 2nd and 3rd respondents seeking recovery of shs. 10,494,455,577/= as the outstanding amount under the loan, with interest thereon at rate of 21% per annum from the date of judgment until payment in full, and the costs of the suit. A partial decree in that sum was on 17th February, 2023 entered in favour of the 1st respondent. - [6] The 1st respondent on 13th March, 2023 applied for execution of the partial decree "by way of arrest of the Judgment Debtors or attachment of Judgment debtor's movable or immovable property unless the judgment debt is fully realised," where upon the Court on 10th April, 2023 issued a Notice to Show Cause why execution should not issue against the 2nd and 3rd respondents. In a ruling delivered on 8th July, 2024 the Assistant Registrar overruled the 2nd and 3rd respondents' objections to the execution proceeding against them. The Assistant Registrar thereafter on 6th September, 2024 issued a warrant of attachment and sale, returnable on 1st November, 2024, of "the 2nd Defendant's immovable property, to wit: Land comprised in Kabalagala, Kisugu, Block 24 Plot 54 Kyadondo County Mengo, measuring 0.15 Hectares," with an estimated value of shs. 1,500,000,000/=, subject to approved valuation. The 1st respondent has since then advertised the property for sale by public auction on 9th October, 2024.

#### The Application;

- [7] The application by Notice of motion is made under the provisions of article 126 of *The Constitution of the Republic of Uganda*; section 98 of *The Civil Procedure Act*, Order 22 rules 55, 56 and 57; and Order 52 rule 1 of *The Civil Procedure Rules*. The applicant is seeking orders that; (i) the land comprised in Kyadondo Block 244 Plot 541 at Kisugu-Kabalagala, measuring 0.15 hectares and all its buildings be released from attachment in execution of EMA No. 0138 of 2023, *Exim Bank Uganda Limited v. Teopista and Jesus Holdings Limited, Nabbale Teopista and Maria Nteganyi*; (ii) sale of the suit property, as has been advertised by the 5th respondent be stayed and or postponed pending the investigation and or final determination of this application; and that (iii) the application be granted with the costs to the applicant. - [8] It is the applicant's case that she is a beneficiary of the estate of the late Kevina Ajeru Nataya whose estate comprised an unregistered kibanja interest located on part of the land now in issue. That interest was the subject of High Court Civil Suit No. 243 of 2013 where she was named as the plaintiff and the 3rd respondent as the defendant together with five others. In that suit, the applicant sought to regain possession of that portion of the land, of which she had ben dispossessed when the 3rd respondent purchased the title from the estate of the late Kristina Nabaggala Kawalya, the then registered proprietor, and evicted her tenant M/s John Rich Cheap Stores Limited. - [9] Judgment was delivered in her favour on 24th September, 2015 declaring her the rightful owner of an unregistered kibanja interest on the land, the Commissioner Land Registration was directed to cancel the 3rd respondent's title to the extent of that interest, the 3rd respondent was directed to hand over the commercial buildings on the land to the applicant or else be evicted therefrom, and a permanent injunction issued restraining the 3rd respondent from interfering with the applicant's quiet enjoyment of that portion of the land.

[10] The respondents appealed the decision under Court of Appeal Civil Appeal No. 236 of 2015 pending determination since then. On or about 12th September, 2018 the 2nd respondent company obtained a loan from the 1st respondent secured by the title deed to the land in issue. The 2nd respondent thereafter created two further charges on the same property by the same bank. Upon the 2nd respondent's default, the 1st respondent has since issued a notice of sale of the mortgaged property.

#### The respondents' affidavit in reply;

[11] By her affidavit in reply, the 3rd respondent averred that execution of the Judgment and Decree in HCCS No. 243 of 2013 was Stayed until disposal of CA Civil Appeal No. 236 of 2015. The 3rd respondent's predecessors-in-title to the suit property followed due process to remove the applicant's caveat, prior to transfer of the suit property into the 3rd respondent's name and all this evidence is before the Justices of the Court of Appeal for their due consideration. The 3rd respondent had the tenants evicted pursuant to a Consent Judgment in H. C. Civil Appeal No.31 of 2013 by which the tenants recognised the 3rd respondent as their Landlady, paid rent in advance, for a duration of six (6) months until the end of 2013 and then she compensated them in the sum of shs. 85,000,000/= for their developments. The Temporary Injunction was preceded by the Consent Judgment and in issuing it the trial Judge acknowledged that the 3rd respondent had compensated the tenants. The 3rd respondent never defied any Court Order in mortgaging the suit property. She acted as registered proprietor and all the applicant's attempts to challenge the 3rd respondent's actions proved futile. Attachment in Execution of EMA No. 0138 of 2023 ought to be suspended until Judgment in CA Civil Appeal No. 236 of 2015 is delivered.

## The submissions of Counsel for the applicant;

[12] Counsel for the applicant submitted that the applicant has agreed with the 2nd and 3rd respondents that the sale proceeds subject to compensation of the applicant's interest, which value shall be determined by the parties before the sale. In case of failure of negotiation, the sale is to go ahead subject to her claim. The 3rd respondent is a defaulting borrower who has no say. The 3rd respondent mortgaged the property after the order of stay. She violated the very order she is seeking protection from. The bank has undertaken a business decision to sell and has undertaken to refund any money paid to the applicant in the event the decision in C. A. Civil Appeal No. 236 of 2015 is not in her favour. The applicant seeks leave to withdraw the application against the 2nd 3rd and 4th respondents.

#### The submissions of Counsel for the 1st and 5th respondents;

[13] Counsel for the 1st and 5th respondents submitted that the two respondents have no objection to entering into a consent with the applicant so that the sale is subject to the ascertained interest of the applicant. It is the 1st respondent risking the compensation to the 2nd, 3rd and 4th respondents in case they succeed on appeal. The sale cannot violate the order of stay issued in H. C. C. S. No. 243 of 2013. The 1st respondent's willingness to compromise with the applicant is intended to ensure that the value of the land is not affected negatively by her claim. The property was mortgaged while the order of stay of execution was in place. The 2nd, 3rd and 4th respondents cannot resort to equity when they violated that order. The appeal in CA Civil Appeal No. 236 of 2015 will not be rendered nugatory by execution of the partial decree in H. C. C. S. No. 948 of 2022.

### The submissions of Counsel for the 2nd, 3rd and 4th respondents;

[14] Counsel for the 2nd, 3rd and 4th respondents submitted that the applicant's contention in paragraphs 1 – 7, 9 12, 22, 23 and 24 of the applicant's affidavit in support of the application are the subject of Court of Appeal Civil Appeal No. 236 of 2015. The appeal was heard during the year 2020 and judgment has not been delivered. The panel was reconstituted a year ago in July and the Court confirmed that everything was on record. The applicant did not appear. The parties are awaiting judgment. The claim by the applicant over Kyadondo Block 244 Plot 541 at Kisugu-Kabalagala is flimsy. Execution of the findings of H. C. C. S. No. 243 of 2013 was stayed until disposal of the appeal. No. 236 of 2015. The proposed consent would affect the order of stay of execution. It is premised on the fact that the applicant has an interest in the property.

[15] Should the sale go on; it will affect the value of the property. A sale by mortgagee is an execution. The compromise between the applicant and the 1st and 5th respondent will amount to execution of H. C. C. S. No. 243 of 2013, in breach of the orders of stay of execution granted in Misc. Application 2105 of 2015. The parties may be invited any time from now to receive the pending judgment in the Court of appeal. It would be prudent to stay execution of the partial decree in H. C. C. S. No. 948 of 2022 pending that judgment.

### The decision;

- [16] 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. Under Order 22 rule 57 of *The Civil Procedure Rules*, the Court has the mandate to release property from attachment once satisfied that it was not in the possession of the judgment Debtor; or in possession of the objector on account of or in trust of the judgment debtor, but for some other person (see *Khakale E. t/a New Elgon Textiles v. Banyamini W (in the matter of Mugunjo) [1976] HCB 31* and *Kasozi Ddamba v. M/s Male Construction Service Co., [1981] HCB 26*). - i. Whether the land comprised in Kyadondo Block 244 Plot 541 at Kisugu-Kabalagala can or cannot be attached in execution of the decree in H. C. C. S. No. 948 of 2022.

- [17] The law is that the title to the property is not changed by attachment. The judgment creditor acquires no title, but only the bailiff obtains the right of possession as an officer of the court. The title remains in those in whom it was vested when the warrant of attachment was issued. The executing court obtains equitable title to the property, because the property is held in equitable trust for those whom the court ultimately decides are entitled. Therefore, an attachment, whether before or after judgment, does not confer any title in, or create a charge over, the property. It merely keeps it *in custodia legis* and prevents its alienation. Moreover, the attachment is not necessarily of the property itself but of the right, title and interest of the judgment debtor in the property at the date of the attachment. - [18] Section 44 of *The Civil Procedure Act* prescribes the property which can and cannot be attached in execution. Several types of property are liable for attachment and sale in execution of a decree like lands, houses or other buildings, goods, money, banknotes, checks, bills of exchange, government securities, bonds or other securities etc., "and ….. all other saleable property, movable or immovable, belonging to the judgment debtor, or over which or the profits of which he or she has a disposing power which he or she may exercise for his or her own benefit, whether the property be held in the name of the judgment debtor or by another person in trust for him or her or on his or her behalf." In short property liable to attachment and sale in execution of a decree is the "property belonging to the judgment debtor" or the property over which, or the profits of which, he or she "has disposing power which he or she may exercise for his or her own benefit." The question then is whether or not money deposited in court as security for costs on grant of an order pending appeal, is "property belonging to the judgment debtor" or property over which he or she "has disposing power which he or she may exercise for his or her own benefit." - [19] The land described as Kyadondo Block 244 Plot 541 at Kisugu-Kabalagala is registered in the name of the 3rd respondent as sole proprietor thereof. According to section 92 (1) of *The Registration of Titles Act*, it is the proprietor of land or of a lease or mortgage or of any estate, right or interest therein respectively, who may transfer the same. By virtue of the land being registered in her name, Kyadondo Block 244 Plot 541 at Kisugu-Kabalagala belongs to the 3rd respondent who thereby has disposing power which in law she may exercise for her own benefit. In a mortgage contract, the debtor retains beneficial interest over the property notwithstanding the encumbrance, since the mortgage only serves to secure the fulfilment of the principal obligation. Indeed, even if the debtor defaults, this fact does not operate to vest in the creditor the ownership of the property; the creditor must still resort to foreclosure proceedings. Thus, a mortgaged property may still be attached and sold to satisfy the judgment debtor's obligations.

- [20] The applicant's claim to the land based on the judgment delivered in her favour on 24th September, 2015 in H. C. C. S. No. 243 of 2013 until it is enforced, only has the effect of creating an additional encumbrance on that title. Generally, where there is a final judgment on the merits by a court having jurisdiction, unless set aside or varied on appeal, that judgment is conclusive between the parties to a suit as to all matters that were litigated. The pertinent aspects of the operative part of the judgment are as follows; - (e) The 6th defendant [The Commissioner, Land Registration] is hereby ordered to cancel the registration of the suit land in the names of the 1st defendant [the 3rd respondent] to the extent of the portion of the equitable interest belonging to the estate of [the] late Kevina Aieru Nataya. - (f) The 6th defendant [The Commissioner, Land Registration] is hereby ordered to register the equitable interest of the plaintiff [the applicant] in the suit land in the names of the administrator of the estate of the late Kevina Aieru Nataya. - (i) An order of (sic) doth issue directing the 1st defendant [the 3rd respondent] to hand over vacant possession of the commercial premises on the suit land to the plaintiff [the applicant]; failure of which she [the 3rd respondent] be evicted there from.

- (j) A permanent injunction doth issue forbidding the 1st defendant [the 3rd respondent] from ever again evicting the plaintiff and /or all persons claiming under her. - [21] According to section 34 of *The Civil Procedure Act*, all questions (including questions relating to right, title or interest in the property) arising between the parties to an execution proceeding or their representatives, and relevant to the adjudication of the application, should be determined by the Court dealing with the application, and not by a separate suit and for this purpose. The Court, is empowered by that provision, to treat a proceeding under this section as a suit, or a suit as a proceeding, notwithstanding anything to the contrary contained in any other law for the time being in force. The executing Court is deemed to have jurisdiction to decide such questions when properly placed before it, which the parties have not done in the instant application. - [22] To the extent that the judgment pending in Court of Appeal Civil Appeal No. 236 of 2015 involves a determination of title to the land, this court is prohibited in applications of this nature from going into complicated questions of title or the investigation of complicated questions such as fraud, trust and so on (see *Chotabhai M. Patel v. Chaprabhi Patel [1958] EA 743*). A person laying such claims has the right to have the whole matter and all the questions which are in dispute fully investigated in an ordinary regular suit. Those matters are the subject of Court of Appeal Civil Appeal No. 236 of 2015. - [23] The relief granted in H. C. C. S. No. 243 of 2013 is in essence a direction to rectify the title to Kyadondo Block 244 Plot 541 at Kisugu-Kabalagala in perfection of the applicant's possessory interest therein. According to section 164 of *The Registration of Titles Act*, upon rectifying the original and duplicate of any certificate of title, the Registrar has the option of either returning the duplicate so amended, or if he or she thinks fit, to issue a new duplicate free of cost, bearing the same numbers as that for which it is substituted with the word "substituted"

prefixed to the volume and folium. Therefore, whatever the outcome of the appeal, the dispute between the applicant and the 3rd respondent concerns only the extent to which, if at all, the estate of the late Kevina Aieru Nataya has an interest in Kyadondo Block 244 Plot 541 at Kisugu-Kabalagala.

- [24] The existence of an encumbrance over land of a judgment creditor is not an impediment to a sale in execution of a decree, provided it proceeds subject to the encumbrance. An encumbrance is anything that can lessen the value or use and enjoyment of a property. An encumbrance does not prevent the title from passing in a real estate transaction. Rather, the title passes subject to any encumbrances. In other words, an encumbrance remains on the property, or runs with the land, until satisfied, even when the title is transferred to a new owner. Because encumbrances can have an adverse effect on land value or use, the sale of immovable property burdened by an encumbrance only impacts on its value and price, not its disposal. This issue therefore is answered in the affirmative; Kyadondo Block 244 Plot 541 at Kisugu-Kabalagala is liable to attachment and sale in the execution of the partial decree in H. C. C. S. No. 948 of 2022. - ii. Whether the order of stay of execution issued in H. C. C. S. No. 243 of 2013 bars the attachment and sale of Kyadondo Block 244 Plot 541 at Kisugu-Kabalagala in execution of the decree in H. C. C. S. No. 948 of 2022. - [25] It is the 1st respondent seeking to execute the partial decree in H. C. C. S. No. 948 of 2022. The 1st respondent is not a party to H. C. C. S. No. 243 of 2013 nor to the appeal arising therefrom, and neither is it claiming under any of the parties thereto. The 3rd respondent on or about 24th October, 2015 obtained an order of stay of execution of the decree in H. C. C. S. No. 243 of 2013 pending the disposal of C. A. Civil Appeal No. 236 of 2015. The term "stay of execution" refers to stoppage of the enforcement process. A paramount factor that the court considers is whether the appeal, if successful, would be rendered nugatory if the stay of execution is not granted. A successful appeal rendered nugatory means that the outcome of the

appeal is essentially not worth anything because the victorious appellant cannot be restored to his or her original position prior to the appeal.

- [26] When it comes to land, the court will also assess if the property has any sentimental value whatsoever to an applicant applying for a stay of execution. The court would ask whether the applicant is concerned about losing the land per se or whether the applicant can, in fact, be compensated in financial terms if the appeal were successful. It should come as no surprise then that the mere fact that the basis of an appeal concerns land does not automatically mean the court is obliged to grant a stay of execution. if a piece of land is mere commercial property without any sentimental value attached to it, and where the applicant can be adequately compensated based on the commercial value of the land if the appeal is successful, the court is unlikely to grant a stay of execution. The court will also not grant a stay of execution where an applicant has no special purpose for the land involved. In short, the more an applicant can demonstrate the importance of land, for instance by showing that the property is a residential home or an ancestral property, the higher the chances the applicant would have in obtaining an order for a stay of execution. - [27] The order of stay of execution of the decree in H. C. C. S. No. 243 of 2013 therefore in effect prevents the applicant from seeking to enforce the operative part of the judgment, by; (i) seeking cancellation of the registration of the suit land in the names of the 3rd respondent to the extent of the portion of the equitable interest belonging to the estate of the late Kevina Aieru Nataya; (ii) seeking registration of the equitable interest of the applicant in the suit land in the names of the administrator of the estate of the late Kevina Aieru Nataya; (iii) seeking recovery of vacant possession of the commercial premises on the suit land or failure of which, seeking the eviction of the 3rd respondent; or (iv) seeking recovery of the costs of the suit. The order also directed that "no additional constructions are or will be carried thereon till the Appeal is disposed of."

- [28] The 1st respondent in attaching and selling Kyadondo Block 244 Plot 541 at Kisugu-Kabalagala in execution of the decree in H. C. C. S. No. 948 of 2022 will not directly or indirectly be enabling the applicant to attain any of the reliefs outlined above, whose enforcement was suspended by the order of stay of execution in H. C. C. S. No. 243 of 2013. By the nature of the issues pending judgment on appeal, in the event that the 3rd respondent succeeds, the effect would only be to disencumber the land of the applicant's claim. Sale of the property in execution therefore only affects the 3rd respondent's entitlement to benefit either partially or to its full extent, which is essentially a monetised interest in light of the fact that the property is subject to a mortgage already under foreclosure. There is no likelihood of rendering her appeal nugatory. - [29] On the other hand, if the sale goes ahead but the applicant secured a decision in her favour, her success will not be worth anything because as a victorious respondent, she will not be restored to her original position prior to the appeal. It is arguable though that if the sale is subject to her interest, the operative part of the judgment will still be enforceable against the new owner. However, this outcome is mitigated by her willingness to monetise her claim by negotiating with the 1st respondent prior to the sale. All in all, this issue in answered in the negative; the order of stay of execution issued in H. C. C. S. No. 243 of 2013 does not bar the attachment and sale of Kyadondo Block 244 Plot 541 at Kisugu-Kabalagala in execution of the decree in H. C. C. S. No. 948 of 2022. - iii. Whether the applicant was in possession of Kyadondo Block 244 Plot 541 at Kisugu-Kabalagala at the time of attachment. - [30] The first question to be decided in objector proceedings is, whether on the date of attachment, the judgement-debtor or objector was in possession of the land sought to be attached and sold in execution. According to Order 22 rule 51 (1) of *The Civil Procedure Rules*, attachment of an immovable property is made by an order prohibiting the judgment debtor from transferring or charging the property in any

way, and all persons from taking any benefit from the transfer or charge and ordering the judgment debtor to deliver up to the court the duplicate certificate of title to the property. A copy of the order should be served by affixing it on a conspicuous part of the property or be served on the judgment debtor and further advertised as the court may direct. Such attachment once effected in execution of a decree, will continue until the said property is sold and the sale is confirmed, unless it is determined or removed on account of any reasons as per Rules 52 (after satisfaction of decree), 54 (decree holder's default causing failure to proceed further), and 57 (the property was not, when attached, in the possession of the judgment debtor) of Order 22 of *The Civil Procedure Rules*.

- [31] While the attachment of movable property is legally effected only by actual seizure, and assumption of the possession or custody thereof by a Court bailiff, this is not necessary with immoveable property. The physical possession of immovable property is not necessary for attachment to be effective. Attachment is effective upon the making of an order prohibiting the judgment-debtor from transferring or changing the attached property, which order suspends the right of the owner of the property to deal with the same. - [32] An attachment in respect of immovable properties, comes into force once the executing Court issues a warrant directing attachment, prohibiting the judgment debtor from transferring or charging the property in any way and requiring the judgment debtor to deliver up to the court the duplicate certificate of title to the property (where the property is registered land), and is effective once the warrant is served on the judgment debtor (see *Mary Lamunu v. Kaggwa Michael, H. C. Misc. Application No, 174 of 2022*), such that the subsequent steps for taking control of the properties such as affixing it on a conspicuous part of the property etc., are only ministerial in nature. The cause of action for filing an objector application arises only when an attachment is effected and in the absence of an effective attachment, the occasion to file such an application does not exist.

- [33] "Possession" is used to refer to the *physical control* of a thing as well as to *a right to* such control. When "possession" is used in the first sense it means that a person has, to a greater or lesser extent, physical control of the land. The person having the right to immediate possession is also frequently referred to in law as being the "possessor" (see *Young v. Hichens (1844) 6 QB 606, 115 ER 228* and *United States of America and Republic of France v. Dollfus Mieg et Cie SA and Bank of England [1952] AC 582*). What must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so (see *Powell v. McFarlane (1977) 38 P&CR 452 (Ch*). What kind of acts, and how many, can be accepted as proof of exclusive use, must depend to a great extent on the manner in which the particular kind of property is commonly used (see *Chambers v. Havering London Borough Council [2011] EWCA Civ 1576, [2012] 1 P&CR 17, [54]* and *Red House Farms v. Catchpole [1977] 2 EGLR 125*)*.* - [34] In general terms, possession of certain land is achieved if, and only if, the person claiming it; (i) has a sufficient degree of the right of exclusive physical control of the land; and (ii) the requisite intention to possess it, commonly referred to as *animus possidendi*; what is required is an intention to possess, not an intention to own or an intention to acquire ownership of the land but rather an intention to exercise such control on one's own behalf and for one's own benefit (see *J A Pye (Oxford) Ltd graham [2003] 1 AC 419 (HL) [32]; [2003] 1 AC 419 (HL) [70]*; *Buckinghamshire County Council v. Moran [1990] 1 Ch 623 (CA) 636*; *Zarb v. Parry [2011] EWCA Civ 1306; [2012] 1 WLR 1240 [37]–[38], [43]–[44], [71]–[75]* and *Greenmanor v. Laurence Pilford [2012] EWCA Civ 756 [27]*. The two elements of control and *animus possidendi* must co-exist (see *Parker v. British Airways Board [1982] QB 1004*). - [36] In the instant case, the warrant of attachment was issued on 6th September, 2024. The 3rd respondent has since her compromise with the hitherto applicant's tenant M/s John Rich Cheap Stores Limited by virtue of a consent judgment dated 14th

June, 2013 followed by a warrant of vacant possession dated 23rd December, 2013, been in physical possession of the entire land from around January, 2014 to-date. It follows therefore that the land was attached more than ten years after the applicant lost possession. I thus find that the applicant was not in possession of the land at the time of attachment. The other consideration of whether the applicant is in possession on her own account and not on behalf of or in trust for the 3rd respondent as judgement debtor, does not arise. In conclusion, although the applicant had sought leave to withdraw the application against the 2nd, 3rd and 4th respondents, there is no basis of exercise of discretion in that regard. Instead The application fails and it is dismissed with costs the respondents.

Delivered electronically this 8th day of October, 2024 …Stephen Mubiru……..

Stephen Mubiru Judge, 8th October, 2024

## Appearances;

| For the applicant | :<br>M/s Kalenge, Bwanika, Kisubi and Co. | |-------------------------------------|-------------------------------------------| | | Advocates. | | For the 1st and 5th respondents | :<br>M/s MMAKS Advocates. | | For the 2nd 3rd and 4th respondents | : M/s Tamale and Company Advocates, |