Nakirijja v Kiwanuka (Criminal Miscellaneous Application 69 of 2023) [2024] UGHCACD 5 (10 July 2024)

Full Case Text

### THE REPUBLIC OF UGANDA

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

### ANTI-CORRUPTION DIVISION

#### CRIMINAL MISCELLANEOUS APPLICATION NO OO59 OF 2023

NAKIRIJJA SARAH APPLICANT

#### VERSUS

UGANDA (DPP) RESPONDENT

### (JUDGEMENT CREDITOR)

#### VERSUS

#### KIWANUKA KUNSA STEPHEN CONVICT4UDGEMENT DEBTOR

# Before: Okuo |ane Kajuga, I

#### RULING

#### Introduction:

This is an objector application brought by way of Notice of Motion under Sections 98 of the Civil Procedure Act & Order 22 Rules 55, 56 and 57 of the Civil Procedure Rules seeking for the release of the following properties from attachment:

- 1. A residential house located at NakinyuguziZone LC 1, Luwafu Parish, Makindye Division, Kampala belonging to Kiwanuka Stephen Kunsa. - 2. Three commercial buildings located at Nakinyuguzi Zone LC 1,, Luwafu Parish, Makindye Division, Kampala also belonging to Kiwanuka Stephen Kunsa.

The grounds of the application as set out in the Notice of Motion and the affidavit in support deponed by the applicant are as follows:

- 1. That the Respondent has filed an application for execution vide Miscellaneous Application No 004 of 2023, which is pending before this Court. - 2. The properties listed for attachment are, in fact, the ordinary place of residence of the applicant and her family / relatives and constilute matrimonial property. - 3. The properties are not proceeds of crime. - 4. The applicant claims an interest in the properties as a spouse to Mr. Kiwanuka Kunsa, the 2nd respondent and is currently in possession of the same. - 5. The applicant will suffer irreparable loss if the said property is not released from attachment - 6. The present application is not designedly delayed and it is in the interests of justice that they are released from attachment.

The 1s Respondent opposed the application and filed an affidavit in reply deponed by D/AIP Wafula Anthony, a detective attached to the Asset Recovery Division of the Office of the DPP contending that:

- 1. The properties in issue are owned by Kiwanuka Kunsa Stephen, the 2'd respondent. - 2. No evidence has been adduced to show that the applicant as well as her children, dependants, and relatives have a legal interest in the properties at Makindye, Nakinyuguzi Zone that are the subject of the application.

The 2'd respondent did not file any reply to the application.

## Representation

The applicant was represented by Advocate John Isabirye while the 1't respondent was represented by Annette Namatovu Ddungu, a Chief State

Attorney from the Office of the Director of Public Prosecutions (DPP). Both made oral arguments before this court, which are considered in this Ruling.

## Back round:

The 2nd respondent, Kiwanuka Kunsa Stephen and others were convicted of several corruption and related offenses at the Anticorruption Division of the High Court by the Hon. Lady Justice Margaret Tibulya vide Criminal Session Case No 31201,6. An order of compensation was issued against him for the sum of Ushs 3, 495,680,0661=. He and the other convicts appealed to the Court of Appeal, who delivered judgement vide Consolidated Appeals Nos 183/2018 and 005/2019 on 20th July 202L, upholding the compensation orders passed by the trial Court.

On the 16th of May 2023, the Office of the Director of Public Prosecutions moved to execute the order by filing an application for execution by attachment and sale of moveable properly belonging to the 2nd respondent. The moveable properties targeted for attachment and sale included the properties at Nakinyuguzi zone, now the subject of this application. Subsequently, a notice to show cause why execution should not issue was issued by the Deputy Registrar at the Anti-corruption Division on the 30il'of May 2023 to the Judgement debtor.

The objector application was filed by the applicant Nakirijja Sarah, when she leamt of the issuance of the above notice.

### Applicant's submissions:

Counsel for the applicant submitted that the applicant is legally married to the judgement debtor and has been resident in Nakinyuguzi zone since their marriage on the 3'd of December 2004 at Our Lady of Africa, Mbuya Parish. He referred the court to Annexure A to the affidavit in support of the motion, being the marriage certificate of the applicant and the judgement debtor, and to Annexure B which is a letter of introduction from the area Chairperson, confirming the applicant as a resident of his Zone.

He submitted that the applicant's husband is currently on bail pending appeal and when he was served with notice to show cause, his client realised that her matrimonial property where she resides with her family is subject to attachment. She therefore filed the application to have her matrimonial property released from execution because it is where she stays.

He submitted that under the law, the court is empowered to investigate such matters and the major issues for determination are whether at the time of the application for execution, the applicant was in possession of the property, and if so, whether she is there on her account or in trust for another person. Further, whether the property constitutes matrimonial properly by virtue of which she has an interest. He argued that if sold, the livelihood of the applicant's family will be negatively affected. He emphasised that the applicant resides on one of the properties, while the other has three houses for rent where her family lives. The family therefore derives sustenance from the same, within the meaning of the Land Act, Section 38 A (4) thereof. He relied on the decision in Biira Esther Kabaseke Kule versus Uganda, Misc. Application No 125112018 by Justice Duncan Gaswaga to support this position and the prayer for the said properties to be released from attachment and sale.

He invited this court to find that the application has been brought without delay, and a grant under Section 58 of the Civil Procedure Act would best serve the interests of justice.

### Submissions of the l"trespondent:

In reply, counsel for the respondent submitted that whereas it is true that the application has been brought without delay, it has been brought prematurely. She relied on Muzinduki Patrick and another Vs Karungi Grace Tumusiime and another: Fort Portal Miscellaneous Application No 00212022 to support the position that an application for objector should be brought only where at the date of attachment (emphasis mine), the properfy is not in the judgement debtor's possession or if the judgment debtor is

holding it in trust for another person. She argued that in the instant case, no warrant of attachment has been issued so the application is speculative and premature. She also argued that since the property is in the judgment debtor's possession, objector proceedings do not apply.

It was further their submission that Section 44 of the Civil Procedure Act lays down properties liable to attachment and exceptions, and the exceptions do not include matrimonial property.

She also submitted that the applicant did not prove contribution to the matrimonial property and only provided a marriage certificate to demonstrate her entitlement. That the extent of each spouse's contribution and their legal interest in the property has to be proved. She relied on the Tanzanian case of Priscilla Chediel Mchomvu Vs Michael and others MA 744/2022 to support this argument.

Lastly, she argr.red that the birth certificates of the children she alleges live with her on the property, plus details of claimed family members are not attached. She prayed that court finds that the applicant has failed to furnish proof to support the prayer for the properly to be released from attachment, and asked the court to find that they are liable to attachment.

In rejoinder, counsel for the applicant pointed out that similar arguments were raised by the respondent in the case of Biira Esther Kabaseke Lule Vs Uganda and 2 others (supra) and were disregarded by the trial judge who held that the sole question is one of possession and some interest in the property. The legal regime is that the applicant must show possession and the respondent has not led any evidence to controvert the same. Further, that matrimonial property is defined by the Land Act as family property where the couple stays and that the Tanzanian case does not apply as it is not the position of the law that the applicant has to prove legal interest.

Lastly, he submitted that the application is not premature as execution is a process not an event and it can be stopped at any point. He reiterated his earlier prayers.

I have carefully listened to the submissions of both parties and their pleadings, and similarly considered the same.

I have established the following issues for resolution:

- 1. Whether the application is competent before this court - 2. Whether matrimonial property is subject to attachment and sale in execution of the compensation order - 3. Whether the properties located in Nakinyuguzi Zone LC 1, Luwafu Parish constitute matrimonial property - 4. Whether the applicant was in possession of the properties - 5. Whether the applicant is entitled to the reliefs sought

## Resolution of Issue 1

## The law:

Order 22 rule 55 of the Civil Procedure Rules provides for investigations of claims to, and objections to attached property as follows;

1) lAhere any claim is preferred to, or 0 ti tl I made to the attachment o any propcrty attached in execution qf a decree on ground that the property is not liable to attachment, the court slnll proceed to inuestigate the claim or objection with the like power as regards examination of the claimant or objector and in other respects as if he or she was a party to suit except that no such inaestigation shall be made where the court considers that the claim or obj ection zoas designedly delatled.

Counsel for the respondent relied on this provision to argue that since no attachment order had been issued, the objector application was premature. Counsel for the applicant argued on the other hand, that execution is a process, and that it is not necessary to wait till the very end. In his view the mere fact that the 1't respondent had applied for execution and cited the properties in issue as subject to attachment and sale was sufficient.

I have carefully considered the decision in the case of Muzinduki Patrick and another versus Tumusiime Christopher (supra) which counsel for the

1't respondent relied on to support her argument, and found the facts in that case quite distinguishable. I take note that in that case objector proceedings were filed when no move had been taken by the judgement creditor towards execution. The Hon. Justice Mugabo Vincent observed as follows:

"The applicant's prayer is that the two pieces of land be released from attachment unconditionally and or should not be attached. I haae carefully perused the record and the applicants haTre not presented any eoidence to show that the suit land has been attached in execution of any decree. There is no application for execution in the Diaorce Cause and the 2"d respondent has not taken any steps to take the applicants out of the occupation of the said properties. . .

An application for objector proceedings acts a bar to a warrant of attachment...an application for release f'rom attachment may not be fled before the attachment from which they are sought to be released can commence. ln the present case there is not eoen an application for execution in respect of the subject properties"

In the instant case, as evidenced from Annexures C to the affidavit in support of the application, an application for execution has been filed, and the properties in issue listed for attachment and sale in Table 2 thereof, titled "unregistered land". A notice to show cause why execution should not issue has also been issued to the 2'd respondent.

In paragraphs 4 and 5 of her affidavit, the applicant avers that she leamed from her husband, who is currently on bail pending appeal that he had been served with the said notice and on perusal, she realised that her matrimonial property in which she resides, and that occupied by her family / relatives was subject to executiory hence the application.

Whereas the attachment order has not yet been issued, I am convinced that the above two processes have sufficiently kick-started the process of execution, and there is evidence of imminent threat to sell off the contested properties to satisfy the compensation order.

It would be adherence to process rather than the substance of the application, for the applicant to be turned away on the basis of prematurify, considering the stage at which the process of execution has reached.

This position was adopted by \*y learned brother Justice Gaswaga in the Biira Esther Kabaseke Kule case (supra). In that case the respondents extracted a decree and applied to court (Executions and Bailiffs Division as it was then) for the attachment of the judgement debtor's house. A notice of eviction was attached to the application. Before attachment could issue, the wife of the judgement debtor instiluted objector proceedings, objecting to the attachment of the house. The application was heard and determined.

I therefore find that though the attachment has not issued, the objector proceedings in the instant case should not be dismissed as premature or speculative. It would not serve the interests of justice do so. In both the Biira case and the instant one, there is certainty that the properties in issue in the respective applications were listed for sale and attachment in the execution application. I also fail to see what prejudice would be occasioned to the 1il respondent if the application is determined at this stage. In any case, the purpose of objector proceedings is to cause the court to investigate justifications or claims as to why any properly should not be subject of attachment. They are intended for speedy resolution of issues that may arise in the execution of a decree. The 2nd respondent did not indicate any prejudice they would suffer if the objection to attachment is considered at this point. As confirmed in the case of Osman Ramadhan vs Cenfury Bottling Company Ltd; Supreme Court Civil Application 351201.9 execution is a process and not an event.

I find therefore that this application is competent before court, and dismiss the objection.

Resolution of Issue 2:

The law: It is the respondent's case that matrimonial property is subject to attachment under the law, contrary to the assertions of the applicant to that effect.

Section 44 of the Civil Procedure Act provides that all saleable properfy, moveable or immoveable, belonging to the judgement debtor, or over which or the profits of which he or she has a disposing power which she or he may exercise for his or her own benefit, whether the property be held in the name of judgement debtor or by any other person in trust for him or her or on his or her behalf is liable to attachment and sale in execution of a decree.

The above provision should not be misinterpreted to mean that where the properly is in the name of or belongs to the judgement debtor, all other interests in the same must be ignored. Where there are competing interests on the property, the judgement debtor cannot be said to have full disposing power over it or any proceeds from its sale or disposal. Consequently, the court cannot order for its attachment in total disregard of these interests. It is for this reason that the law provides for objector proceedings, to allow for the investigation of any claims or objections by persons with interest.

This is emphasised by Order 22 Rule 57 which provides:

"Whereupon the inaestigation under rule 55 of this Order the cotrrt is satisfied that for the reason stated in the claim or the objection the property utas not, when attached, in possession of the judgement debtor or some other person in trust for him or her, or in the occupancy of a tenant or other person paying rent to him or her, being in possession of the judgement debtor at the time, it was so in his or her possession not on his or her own accoufit or as his or her own rt but n account or in trust r some other ersotl or llnrt I 1l on his or her own account and ltortl 1t on account of some other 1'crs0 the court shall nnke an order releasin tlrc ro ert zuholl or to me extent as it thinks fit, from the attachment.

The law on land, which is immoveable saleable property, has steadily developed over time, to recognise and protect the interests of spouses. Section 38A (4) of the Land Act Cap 227 defines family land as land on which

the ordinary residence of a family is situated and from which the family derives sustenance. It also includes land the family agrees to be treated as such, and what is regarded as such by norms, cuitures and traditions of the family. Under the same law, transactions undertaken on family land without written consent of a spouse are deemed null and void. This covers any dealings like sale or mortgages and leases. Every spouse enjoys security of occupancy of family land and each can live on and enjoy the land as long as they are both still married to each other.

In the same vein, what is understood to constitute matrimonial properfy has evolved over time. Spousal interest in property is determined not only by direct monetary contributions but also indirectly through Payment of other bills, meeting other family requirements including child care, cleaning and performance of other household chores See |ulius Rwabinumi versus Hope Bahimbisomwe; SCCA No 10/2009.

The above positions clearly indicate that a spouse acquires and has interest in property, and that interest is protected by law. It need not be a legal interest. To that extent I disagree with the applicabilify of the Tanzanian authority of Priscilla Chidiel Mchomvu (supra) relied on by the 1il respondent.

Order 22 Rule 56 requires the claimant or objector to adduce evidence to show that at the date of the attachment he or she had some interest in the property attached. This interest may be legal or equitable.

Since Article 26 of the Constitution allows married people to own proPerfy in their own right, objections to sale of properly based on matrimonial interest must be criticaliy analysed. Once the court is satisfied that these interests exist, it may order for release of the whole or part of the property. The challenge or complexity arises in determining the percentage or proportion of interest of the spouse. It is for this reason that in the Biira case, it was held that where the respective interests of the debtor and the objector

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cannot be ascertained, it would be safer to allow the objection and release the property from attachment.

Whereas the dwelling house of a judgement debtor can be subject to attachment, and whereas matrimonial property is not expressly listed in the properties exempted from attachment under Section 44 of the Civil Procedure Act, for the legal reasons expounded hereinabove, such interests once established should cause a release from attachment whether partially, where ascertainable, or wholly.

This issue is resolved in the affirmative

### Resolution of Issue 3:

The applicant claims the properties in Nakinyugozi zone are matrimonial and that the family lives on the same land.

In paragraph 3 of her affidavit in support of the motion, she avers that she has been a resident in Nakinyuguzi Zone LC1, Luwafu Parish, Makindye Division since she got married in 2004. The 1't respondent did not controvert this in the affidavit in reply.

What however is of keen interest to court is the evidence tendered by the applicant to support her claims that the property is matrimonial. In paragraph 1 of the affidavit in support she avers that she got married to Mr Kunsa Kiwanuka (judgement debtor) on 3'd December 2004 and she attached a married certificate marked "A".

I have carefully scrutinised Annexure A. It is evidence that Kunsa Micheal Stephen (judgement debtor) married "Egwire Marie S. Rebeccah" of Jinja at our lady of Africa in Mbuya on 3'd December 2004.

The applicant in this matter is Nakirijja Sarah and her names are not reflected on the marriage certificate. The names are totally / substantially different and sufficient to raise doubt and support the conclusion that the applicant is not the person named in the marriage certificate. The surnames are different. We cannot make a presumption that the "5." on the marriage certificate stands

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for Sarah. Even if that were so, the absence of the sumame "Nakirijja" is telling. None of the three names cited in full on the certificate is used by the applicant in this application. No explanation was offered for the dispariry in names in the applicant's affidavit, nor was there any proof tendered of a change of name. Counsel for the applicant made no submissions regarding the same.

I have also critically looked at the signatures of the married couple on the certificate and compared them with the signature on the applicant's affidavit in support of the motion. I am convinced that even to the naked eye, it is apparent that the signature of the applicant on the latter document does not appear on the marriage certificate.

Without any reasonable explanation of the disparity of names and signatures, I am unable to conclude that Annexure A is evidence of the applicant's marriage to the judgement debtor.

The applicant thus fails to prove the marriage by which she claims an interest in the properties in Nakinyuguzi Zone which are subject to attachment. As provided under Rule 56, the objector has the duty to adduce evidence to show his or her interest in the property. This evidence must meet the requisite standard of proof in civil matters.

In the Biira case, there was cogent and uncontroverted evidence that the objector and judgment debtor got married in 2006 and purchased the property together in 2008.

In Rebecca Kagimu Nakangu Vs Sansa Richard and Maurice Kagimu Peter Kiwanuka High Cour! Miscellaneous Application No 145 of.2022, there was proof of marriage between the objector and the judgement debtor by a proper marriage certificate dated 1't October 2005 issued by Kitovu cathedral parish.

Both applications were successful.

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I note that in the instant case the 1't respondent did not submit on the anomalies in the marriage certificate or the evidence tendered in proof of marriage. I cannot however overlook them.

The objector, Sara Nakirijja had the burden to prove that she is married legally to Kiwanuka Kunsa and that the said property that is being attached is matrimonial property or property where the family derives its sustenance in keeping with Section 101 of the Evidence Act which requires that whoever desires any court to give judgement or any legal liability as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that these facts exist.

From the evidence presented, I am not convinced, on a balance of probabilities that the applicant is married to the judgement debtor and that the property in Nakinyuguzi, subject to execution is matrimonial property.

# Resolution of Issue 4:

### The law:

The question to be investigated in objector proceedings is that of possession. A myriad of decisions confirms this, including Harilal & Co versus Buganda Industries Ltd (1960) EA 318.

The applicant avers that the properties are occupied by herself and her extended relatives. She tendered Annexure B as proof of the same.

I have carefully considered the wording of this letter signed by the LC Chairman, titled "Introduction of Nakirijja Sarah" and reads;

"Reference is made to the aboae mentioned person who has approached the Local Council of this zone for an introduction I recommendation letter.

The purpose of this letter is to confrm that the aboae named person is a resident of Nakinyuguzi zone Luwafu Parish Makindye Diaision in Kampala District.

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The Local Couttcil of the abotte named zone do hereby recommend himlher for assist ance where possible.

Your assistance in this matter will be highly appreciated"

There is no other proof apart from Annexure B. I find little evidential value in the letter which only confirms her as a resident of the zone and not that she is in occupation of the properfy in issue. Her assertions that she and her relatives are in possession are therefore not supported by evidence. This could easily have been confirmed by the Chairman of the area, but he does not.

Mere assertions of possession do not constitute proof.

I note that the 1st respondent's affidavit in support and submissions in court do not contest occupation. None of the averments relate to the critical question of possession. They focus on the fact that there are two properties, one being residential and another being commercial. They also emphasise that there was no evidence tendered to support the applicant and her relatives legal interest in the property.

From the evidence before me, I cannot conclude whether the judgement debtor lives on the premises with the applicant as husband and wife. I note that counsel for the 1't respondent submitted that the house belongs to and is in possession of the judgement debtor. There is no evidence submitted to support the proposition.

I cannot establish who actually occupies the portion that has been referred to as commercial buildings. Counsel for the applicant submitted that these are rentals, then stated they are occupied by the relatives. I found that contradictory to say the least. Are these properties on rent? If so who is in control? Who actually occupies them? Annexure A to the affidavit in reply which is a plain photograph of the alleged commercial building is not of evidential value to me, in determining this question.

Possession within the meaning o f Order 22 Rule 57 refers to not only physical occupation but also power of control over the property. Whereas the property belongs to the debtor, the applicant may be in physical possession or control over the same. This has not been proved, on the balance of probabiiities.

## Resolution of Issue 5:

I agree with both counsel that the application has been brought without delay. However, having failed to establish an interest in the properties in issue, and her possession of the same, her claim for the remedy of release from attachment cannot stand.

#### CONCLUSION:

In the final result, this application fails and is consequently dismissed.

No order is made as to costs

Delivered this 10th of July 2024 in the presence of all the parties

Okuo Jane Kajuga Judge of the High Court