Ongom v Okecha (Miscellaneous Application 7 of 2024) [2024] UGHC 497 (19 June 2024)

Full Case Text

# THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA HOLDEN AT GULU

## MISCELLAENOUS APPLICATION NO. 007 OF 2024

$10$

$\mathsf{S}$

**ONGOM LEO** (The Administrator of the estate of the late Obol Emmanuel M. A...................................

### **VERSUS**

# BONGA RONALD OKECHA...... RESPONDENT/ JUDGMENT CREDITOR

## BEFORE: HON. MR. JUSTICE GEORGE OKELLO

## **RULING**

The applicant applies as an objector to stop court execution process and have the property attached, released from attachment, and costs of the 30 Application to be provided for. The Application omits to show the underlying execution application from which it arises. It equally does not indicate the suit from which the execution process springs. It also wrongly omits to implead the Judgment debtors. I must state that poorly drafted pleadings such as the instant are a common eye sore these days. Legal 35 practitioners ought to do better.

$\mathbf{1}$

Hasolur.

- That said, the underlying case file which I have perused shows that $5$ Execution Application No. 79 of 2023 was lodged by Bonga Ronald Okecha the current Respondent/ Judgment Creditor against Kinyera Denis & 7 others. He sought to execute the decree of court (Mutonyi, J) given in HCCS NO. 025 of 2015. The decree followed a summary suit in which Kinyera and 7 others were sued by Mr. Bonga, to recover shs. 11,000,000 plus 10 accumulated interests, and costs. The Judgment debtors were advanced the principal amount which helped the family redeem family property which had been mortgaged to a bank and were due for sale by the bank. Following the dismissal of the Application for leave to appear and defend the summary suit on 29th September, 2015, court entered Judgment and 15 ordered the Judgment debtors to pay the principal sum plus interest, general damages, additional interest on interest and general damages, and costs. Given the non satisfaction over the years, the decretal amount currently stands at a gross sum of Ugx 115,360,000. The Judgment - creditor seeks to realize the amount by attachment and sale of land 20 comprised in plot 38 Laroo Road, Gulu Municipality, now Laroo-Pece Division, and plot 11 Lawot- Rudolf Lane, within the same Division, both now in Gulu City. - 25 The application is commenced by Notice of Motion predicated under Order 22 rules 55 and 56, Order 52 rule 1 of the Civil Procedure Rules, SI 71-1, and section 98 of the Civil Procedure Act Cap 71. The Objector avers he is

HArodraw

$\overline{2}$

$\mathsf{S}$ an administrator of the estate of the late Obol Emmanuel M. A who was the proprietor of the two sets of property. The objector also avers he has interests in the property as a lawful beneficiary. He contends that the property attached does not belong to the Judgment debtors. Therefore, the property ought to be released from attachment. He further avers that if 10 sold, third parties might gain interest in the property to the prejudice of the objector who would suffer irreparable loss. The Motion is supported by the Objector's affidavit. I will not reproduce the affidavit since it basically expounds on the grounds. I will advert to the affidavit in my analysis, where necessary.

In his reply, the Respondent opposes the application on points of law, and on merit. He contends, among others that, the objector lacks locus standi. The Respondent gives a history of how he was approached by the Judgment debtors in October 2013 for financial assistance and how he 20 rendered assistance. He states that the Judgment debtors presented a family resolution to the Respondent, agreeing to borrow money on certain terms, including, pledging the attached property as security. He further deposes that it is the family members of the late Obol Emmanuel M. A. whom he sued on failing to pay back the loan. He alludes to the fact that the objector is not the administrator of the estate of the late Obol 25 Emmanuel M. A but merely filed an application to be appointed one, vide Administration Cause No. 02 of 2024, lodged in January, 2024. The

HutoQue.

- Respondent thus claims that the Administration Cause is designed to $\mathsf{S}$ circumvent the execution process, and in any case, its filing followed the issuance of a notice to show cause why execution should not issue against the Judgment debtors. The Respondent believes the Judgment debtors fronted the Applicant to frustrate the realization of the fruits of the decree. He concludes that the objector has no interest in the property attached, 10 - and as at the date of the attachment, the property were not in his possession.

Mr. Owor David Abuga represented the objector/ Applicant while Mr. Kinyera David appeared for the Judgment creditor/ Respondent. They filed 15 written submissions which they adopted.

Learned counsel for the objector raised three issues which Mr. Kinyera agree to, but proceeded to add an additional issue. Because of the additional issue, I shall modify the order in which the issues are presented by learned counsel. Therefore, the four issues are;

1. Whether the affidavit in reply is incompetent?

2. Whether the Application is competently before court?

3. Whether plots 11 and 38, Laroo-Pece Division, Gulu City can be released from attachment and execution?

4. What remedies are available to the parties?

Hadodun.

#### $\mathsf{S}$ Resolution

## Issue 1: competence of the Affidavit in reply.

Mr. Owor Abuga submitted that the Respondent's affidavit in reply was filed out of time. Counsel referred to Order 12 rule 3 (2) of the CPR to submit that, a reply to interlocutory application ought to be filed within 15 days from the date of service of the Application. He added, once filed, a reply should be served on the Applicant within 15 days from the filing date. Learned counsel claimed that the Judgment Creditor was served on 20th January, 2024 and filed a reply on 20th February, 2024 (after 30 days), thus he was 17 days late yet he did not seek to enlarge time by consent under Order 51 rule 7 of the CPR. Counsel relied on Patrick Senyonde & Ors Vs. Lucy Nakito. Learned counsel emphasized the importance of complying with time limits set by statutes.

In his submissions in response, Mr. Kinyera conceded his client filed the 20 replying affidavit on 20th February, 2024, and served his adversary on 22nd February, 2024. He, however, contended that, under Order 5 rule 16 of the CPR, the Applicant has to prove the date when he served the application on the Judgment creditor, which is by affidavit of service, none of which was filed in court, counsel asserted. Learned counsel further 25 argued that his client was only served with the Motion on 8th February, 2024, so the Respondent filed the reply in time. Counsel attached a copy of the acknowledged Motion to his submission. He thus contended that

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the affidavit in reply was filed within 15 days from the date of service of $\mathsf{S}$ the Application on the Respondent/ Judgment creditor. Learned counsel alluded to the fact that the Motion was only issued by court on 30th January, 2024, and wonders how the same could have been served on his client on 20th January, 2024 being an earlier date before the issuance. Mr. 10 Kinyera made alternative argument that, even if it were to be assumed that his client filed the affidavit in reply late, an affidavit in reply is not a pleading and thus not governed by the provision of Order 12 rule 3 (2) CPR. He cited the authority of **Lam-Lagoro Vs. Muni University, Civil** Cause No. 7 of 2016 (Mubiru, J) to buttress his arguments. He invited court to validate the affidavit should it find that it was lodged outside time. 15

I have considered the rival arguments. This kind of objection appearing in submission which calls for evidence before its resolution, ought to be discouraged. First, the objector's counsel did not supply court with a process server's affidavit of service to show the date when the Motion was 20 served on the Judgment creditor. In my view, where a preliminary objection requires evidence, such evidence must be on record and must not be in dispute. See: Mukisa Biscuit Manufacturing Co. Ltd Vs. West End Distributors Ltd, [1969] EA 696; Patrick Mukasa Vs. Andrew 25 Douglas Kanyike, Civil Appeal No. 13 of 2022 (SCU).

I note that learned counsel Mr. Owor Abuga failed to prove that the Judgment creditor was served on 20th January, 2024. Because of want of

Hurodun

- $\mathsf{S}$ proof, Mr. Kinyera was impelled to submit evidence from the Bar, contending, his client was served on 8th February, 2024. Surprisingly, Mr. Kineyra's argument was not rebutted by Mr. Owor Abuga. I, therefore, believe learned counsel Kinyera that by filing the affidavit in reply on 20th February, 2024, his client did so within 15 days from the date of receipt of - 10 the Motion. Thus I find the objection by the Objector to be misconceived. I will not, therefore, consider whether or not Order 12 rule 3 (2) of the CPR applies to affidavits. What I can say generally is that, decisions of the High Court appear to be varied on the scope of the rule's application. I need not express my opinion on it in this proceeding. See: Springwood Capital - 15 Partners Ltd Vs. Twed Consulting Company Ltd, High Court Misc. Application No. 746 of 2014 (Madrama, J. as he then was); Lam-Lagoro Vs. Muni University, Civil Cause No. 7 of 2016 (Mubiru, J); Oryema Sam Baker Vs. Okole Ismail, High Court Misc. Application No. 27 of **2021** (Phillip Odoki, J.).

### 20

# Issue 2: competence of the Application before court

Learned counsel for the Respondent argued this ground from the perspective of lack of locus standi. He cited Njau & others Vs. City Council of Nairobi [1976-1985] 1 E. A 397 at 407, to submit that, to say a person has no locus standi means he cannot be heard, even on whether or not he has a case worth listening to. Learned counsel adverted to order 7 rule 4 of the CPR to argue that where a plaintiff sues in a

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representative character, the plaint shall show not only that he has an $\mathsf{S}$ existing interest in the subject matter but that he has taken steps necessary to enable him to institute the suit concerning it. Learned counsel went on to submit that the Applicant purports to sue as an administrator yet he has not attached letters of administration. He also 10 argued that the Applicant is not applying as a beneficiary which otherwise does not require letters of administration to be obtained first before launching an action.

I note that the objector was given opportunity to file rejoinder submission if he wished, by 28th March, 2024. However, none was filed. Consequently, 15 the issue regarding the alleged competence of the application, is not opposed. Be that as it may, I think the issue of locus standi does not arise in this case, because, the principles that guide objector proceedings are not those that Mr. Kinyera sought to argue under this rubric. An objector 20 proceeding, as I shall indicate, is not regulated by the provisions cited by learned counsel, but rather it is regulated by Order 22 rules 55 and 56 of the CPR. Therefore, a person who meets the conditions of the rules as amplified by judicial precedents, would be competent to bring objector application. The question of representative capacity does not arise. Once an administrator demonstrates that at the date of the attachment, he was 25 in possession of the property, that is, exercising control over the property, I think he would have shown his so-called standing to be heard as an

Headlew.

objector. The deeper investigations required of court in objector $\mathsf{S}$ proceedings can then be done, by considering the rival contentions. Accordingly, I find the issue of lack of locus standi, as argued, from the perspective of a lack of representative order, to be seriously flawed, devoid of merit, and is over-ruled.

# Issue 3: whether plots 11 and 38 Laroo-Pece Division, Gulu City can be released from attachment and execution?

This issue is not smartly framed but I will ignore the want of smartness. 15 What I should observe at the onset is that attachment and sale of immovable property is a form of execution of decree or order of court. Attachment of property generally is provided for under section 38 (b) of the Civil Procedure Act. Black's Law Dictionary (9th Ed.) by Bryan A. Garner, at page 145 defines attachment to mean "the seizing of a person's property to secure a Judgment or to be sold in satisfaction of a 20

# Judgment."

I note that this definition is unhelpful in so far as the attachment of immoveable property is concerned. The definition is more relevant to 25 moveables, which are things capable of seizure. That said, being a mode of execution of court decree/order, a court may order attachment and sale of property once the decree holder makes an application to court.

Harden. Execution, therefore, signifies the enforcement of or the giving effect to the $\mathsf{S}$ Judgment or orders of courts of justice. See: Words and Phrases Legally Defined, Vol. 2, 3rd Ed., London and Butterworths 1989 at pp195-6. As aptly noted by Lord Denning MR, the term 'execution' is familiar to lawyers. It means "the process for enforcing or giving effect to the judgment of the court." See: Re Overseas Aviation Engineering (GB) $10$ Ltd [1962] 3 All ER 12, at p.16. See also: Mary Lamunu Vs. Kaggwa Michael, High Court Misc. Application No. 174 of 2022.

In the instant case, the contention is that the property comprised in Plots 11 and 38 Laroo- Pece Division, Gulu City, have been attached in 15 execution of the decree of court, and ought to be released from attachment. Order 22 rule $51(1)$ and (2) provides in clear terms how the attachment of immovable property ought to be done. It states:

- 20 "Rule 51 (1): Where the property to be attached is immovable, the attachment shall be 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 the title to the property."** (Underlining for emphasis) 25

Hurden.

Sub-rule 2 of rule 51 provides for steps to ensure effective service of the $\mathsf{S}$ order/warrant of attachment on the judgment debtor. It provides,

"Order 22 rule 51 (2): A copy of the order shall be served by affixing it on a conspicuous part of the property or be served on the judgment

- 10 debtor and further advertised as the court may direct: except that the court may further direct that, if an order cannot be served as aforesaid, it shall be served by affixing a copy of it on some conspicuous place in the court and also on some part of the house, if any, in which the judgment debtor is known to have last resided - 15 or carried on business or personally worked for gain or in such other manner as the court thinks fit." (Emphasis is mine.)

In light of the provision of Order 22 rule 51 (1) of the CPR, a warrant of attachment of immoveable property must be in the following terms;

- i) It must prohibit the judgment debtor from transferring or charging the immoveable property in any way and all persons from taking any benefit from any transfer or charge. - 25 ii) The order must further direct the Judgment debtor to deliver up to the Court the duplicate certificate of title to the immoveable

Hatelun

property, and I must add, or other documents regarding the immovable, if available.

I am of the considered opinion that an attachment of immoveable property 10 crystallizes once a warrant is issued by court and served on the Judgment debtor. Service can be by any mode coming within the purview of Order 22 rule 51 (2) of the CPR which is couched in wide terms.

$\mathsf{S}$

In Ndawula Ronald Vs. Ugafin Ltd, Misc. Application No1701 of

2014, Alfone C. Owiny Dollo, J., (as he then was) observed that 15 attachment of immovable property in execution in a manner that is contrary to the provisions of Order 22 rules 51 (1) and (2) cannot stand. I agree. In that case, the court proceeded to set aside an attachment because, among others, the advertisement of the property for sale after attachment, disregarded procedure such as first securing the certificate of 20 title thereto and publishing the attachment.

It seems to me the provision of Order 22 rule 51 (1) CPR flows from the provision of section 48 of the Civil Procedure Act Cap.71. The section provides:

"s.48 (1) the court may order, but shall not proceed further with, the sale of any immoveable property under a decree of execution until

Hasdus.

there has been lodged with the court, the duplicate certificate of $\mathsf{S}$ title to the property or the special certificate of title mentioned in subsection (4)"

Subsection 2 of section 48 reads:

$10$

"The court ordering such sale shall have power to order the judgment debtor to deliver up the duplicate certificate of title to the property to be sold or to appear and show cause why the certificate of title should not be delivered up."

The CPA provides for punishment for any default to deliver up the certificate of title to the property attached. Thus section 48 (3) of the CPA provides:

- 20 "Where the court is satisfied that a judgment debtor has wilfully refused or neglected to deliver up such certificate when ordered to do so, the court may commit him or her to prison for a period not exceeding thirty days." - The need for delivery up of a certificate of title, be it duplicate or special, 25 appears, therefore, to be crucial when a court is to proceed with sale of the

Hufodin

5 immoveable. I, however, think, this only applies where the property is registered.

In the present matter, I have noted that a warrant was issued by the Deputy Registrar of Court on 28th November, 2023. It is annexed to the affidavit of the objector as B2. However, the warrant is erroneously issued 10 under Order 22 rule 35 of the CPR which deals with warrant of arrest of judgment debtor. In my considered view, the warrant should have been issued under Order 22 rule 51 of the CPR which deals with attachment of immovable property. The warrant omits to direct the judgment debtors to 15 deliver up any documents of title of the attached property. It also does not prohibit the Judgment debtors from transferring or relinquishing the property attached to a third party or any person from taking any benefit from such transfer or charge. It is not shown the warrant was served on the Judgment debtors and if so, when. There is only proof of service of notice to show cause which always precedes issuance of the warrant of 20 attachment under Order 22 rule 19 (1) of the CPR unless under sub rule (2) thereof, court considers it unnecessary to issue the notice, for the reason to be recorded. It is thus not clear to me whether the warrant has been executed by attaching the property as per the command of the law. 25 The warrant was drawn by the Bailiff of Court but the executing court had a duty to ensure its regularity before issuance, being a process of court. The warrant does not substantially comply with the law. To my mind, this

HhaoDur.

is a perfect matter where the Judgment debtors themselves should have $\mathsf{S}$ moved the executing court to set aside the execution process because of the faulty start, under section 34 (1) of the Civil Procedure Act. Section 34 of the CPA applies only to parties to the suit, and not third parties such as the objector. See: Sinba (K) Ltd & 4 others Vs. Uganda Broadcatsing Corporation, Civil Appeal No. 03 of 2014 (SCU) (Per the Leading 10 Judgment of M. S Arach Amoko, JSC) referencing with approval Habre International & others Vs. Ibrahim Alakaria, HCCS No. 191 of 1992 digested in [1996] 2 KALR 656. There, Arach-Amoko, JSC (RIP) held that, section 34 of the CPA is the correct procedure for determining issues arising out of execution of decrees between the parties to the suit. 15

In the instant case, therefore, given the issues pointed out, the warrant would not stand, even if it were shown to have already been executed. In any case, it is not shown the property has been advertised and already sold. The present warrant of attachment cannot be saved under article 126 20 (2) (e) of the Constitution of Uganda, 1995, which otherwise enjoins courts to do substantive justice without undue regard to technicalities. The defects highlighted are, in my view, not mere technicality. They are matters of law and go to the root of the warrant. Not being the warrant which the $^{25}$ law envisages under Order 22 rule 51 of the CPR, I would, in the exercise of court's inherent powers under section 98 of the CPA, set it aside. This court can invoke section 98 of the CPA to avoid abuse of its process, and

Hkhodu.

to do justice. See: Ayub Suleiman Vs. Salim Kabambalo, Civil Appeal $\mathsf{S}$ No.32 of 1995 (SCU); Ochwa Olanya Charles Vs. Ochaya Santo & Acayo Ludina, High Court Misc. Application No. 030 of 2022.

Given my observations and conclusions, I thus find the present Application by the objector to be premature before court since the $10$ purported attachment, if any, is null and void, having proceeded on an illegal warrant. I would thus dismiss the Application for being premature.

- That said, since the parties addressed court on the issues regarding the release of the property from attachment, I will briefly comment on the 15 matter. I note that the objector claims to have been in possession of the property as at the date of the alleged attachment. However, the objector claims control over the property by virtue of the office of an administrator. That would mean he claims control not on his own account but on account of the Judgment debtors, who on the evidence, are beneficiaries of the 20 allegedly attached property as children of the original owner. That said, unfortunately, no copy of the grant of letters of administration was furnished to this court, to support the objector's claim of control as an administrator. Rather what the Applicant as objector attaches to his affidavit, is a copy of an Application for letters of administration which is 25 - yet to be heard by court. I, therefore, agree with Mr. Kinyera that from the circumstances, the petition for letters of administration appears to have been hurriedly launched to circumvent the court execution process. That

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- $\mathsf{S}$ in my view is tantamount to using the process of court for improper purpose. On merit, I would thus still disallow the objector application as it does not meet the legal tests for its grant. See: **Chotabhai M Patel Vs.** Chatrabhai Patel & another [1958] E. A 743; Sokempex Interstate Co. Ltd Vs. Eurafro General Import and Export Co. Ltd [1981] HCB 75; 10 Uganda Mineral Waters Ltd Vs. Amin Piran & Kampala Minerals Ltd (1994-95) HCB 87; Harilal & Co. Vs. Buganda Industries Ltd [1960] 1 E. A 318; David Muhenda & 3 others Vs. Margaret Kamuje, Civil Appeal No. 9 of 1999 (SCU). - 15 However, having set aside the warrant for the reasons stated, the process of execution can only be restarted as is permissible under section 35 of the CPA, but of course subject to the limitation imposed by that section. In the circumstances, I accordingly direct that a fresh execution process be carried out by the Deputy Registrar of court, in accordance with the law 20 and procedure unless the Judgment debtors or whoever comes to their aid,

fully pay off the Judgment debt.

Given the reasons for my decision, I make no order as to costs of this application which for the avoidance of doubt is dismissed.

Delivered, dated and signed in Court this 19th June, 2024

NGADON, 19/06/2024 George Okello **JUDGE**

$\mathsf{S}$ Ruling read in Court

## 9:45am

19th June, 2024

## $10$ **Attendance**

Mr. Kinyera David, Counsel for the Respondent.

Respondent in Court.

Applicant in court.

Applicant's Counsel – Mr. Owor David Abuga – absent.

$\overline{b}$

Mr. Ochan Stephen, Court Clerk. $15$

> Hartolur. 19/06/2024 George Okello **JUDGE**