Transafrica Assurance Co. Limited v Alcon International limited and Others (Miscellaneous Application 529 of 1998) [1998] UGHC 29 (23 June 1998)

### THE REPUBLIC OF UGANDA

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

## MISCELLANEOUS APPLICATION NO.529 OF 1998

(Arising out of HCCS No.473 of 1998)

TRANSAFRICA ASSURANCE CO. LIMITED ........................... PLAINTIFF

### **VERSUS**

| ALCON INTERNATIONAL LIMITED | | |-------------------------------|--| | NATIONAL SOCIAL SECURITY FUND | | | KIIZA | |

#### BEFORE: THE HONOURABLE MR. JUSTICE JAMES OGOOLA

#### RULING

This application is brought by the Objector, the National Social Security Fund ("NSSF") under 0.19, r.55 of the Civil Procedure Rules ("CPR"). The application is supported by an affidavit of 17th June, 1998 deponed to by Asuman Kiyingi, the NSSF Legal Officer. The brief background to this application is as follows: In HCCS No.473 of 1998, His Worship, Mr. Wangutusi, Registrar of the High Court, granted the Plaintiff ("TRANSAFRICA") a judgment decree against the Defendant ("ALCON") accompanied by a Warrant of Attachment dated 28/05/98, addressed to the Bailiff (Mr. Kiiza) for the attachment and sale of certain specified construction equipment of ALCON - including a caterpillar and a lorry. Against the attempts of the Bailiff to effect the attchment and sale of the caterpillar and lorry, now comes before this Court the NSSF with this application praying for orders that:

- (a) the claim by NSSF to the ownership of the caterpillar and lorry, contained in the Warrant of Attachment, be investigated; and - the attachment and sale of the caterpillar and lorry be $(b)$ stayed pending the investigation.

$\mathbf{1}$

The basic ground for NSSF's above application is to the effect that the property attached and to be sold under the Registrar's warrant belongs, not to the Defendant/Judgment Debtor (ALCON), but rather to the Objector (NSSF).

The Objector relied for its case on three carefully hand-picked S clauses of a contract that was allegedly entered into between NSSF and ALCON. The contract itself was not tendered into evidence, nor was it attached to the affidavits supporting NSSF's application. In these circumstances - even assuming that the alleged contract exists and is valid - Court could only rely on the three $\mathcal{L}^{\mathcal{O}}$ contractual clauses that were specifically quoted/reproduced in the Notice of Motion filed by the NSSF. But any such reliance presented the Court with at least two practical problems. First, the contractual clauses that were reproduced, make numerous crossreferences to other clauses and sub-clauses of the contract that $10^{-}$ were not themselves reproduced/quoted in the Notice of Motion and, therefore, not made available to the Court. Accordingly, Court could not make head or tail of what the true position and the fair interpretation of the quoted clauses really was. Second, the clauses reproduced in the Notice of Motion, are themselves $\lambda$ prodicated on a number of prior conditions, the happening (or nonhappening) of which give rise to the stated result. For example the key clause referred to (clause 14) states that:

"Where in any certificate of which the contractor has received payment the Architect has in accordance with Clause 30(2) of $\mathbb{Q}$ these Conditions included the value of any unfixed materials and goods required for use in the works, such goods, materials and goods shall become the property of the Employer and shall not be removed except for use upon the Works unless the Architect has authorised in writing such removal and the 30 contractor shall remain responsible for any loss of or damage to the same".

$\lambda$

In order to give a fair and true redering to the fullness of the intricate menu of the above quoted clause 14, one would need first to ascertain the happening or non-happening of the multifarous 弘 ingredients in the menu. For instance: (i) whether there was a certificate at all; (ii) whether the Contractor had received payment on such certificate; (iii) whether such payment included

$\overline{2}$

the of value of unfixed materials/goods at the instance of the Architect; and (iv) whether such inclusion was done in accordance with clause 30(2)? ...etc, etc. Only when the various questions above are answered in the affirmative, would the materials/goods be found to have become the property of the Employer (i.e. the ,5^" Objector).

The Objector did (Motion/Affidavits), alone answer any one affidavit avers that not - either in the documentation or in counsel's oral submission - raise, let of the above queries. True, Mr. Kiyingi's "all the motor vehicles and the caterpillar ..were paid for under certificates presented by the Contractor". But beyond this mere assertion, there was not even a simple attempt to prove the matter. Not a single such certificate was adduced. Not a single receipt was tendered. Not a single ^witness was produced. Acconrdingly, Court is left with utterly no evidence as to whether the requisite contractual pre-conditions were ever met or not with respect to the caterpillar and lorry. ^Therefore, Court [has\\_.no](has_.no) basis at all to determine the true answers to these queries^ In the premises, the Objector has failed to adduce the necessary evidence to prove its case.

A now Similarly, clause 25(3) (a) of the contract - as reproduced in the Objector's supporting affidavit - prescribes the "respective rights and duties of the Employer and Contractor" in the event of determination of the contract "as aforesaid". Without having access to the "aforesaid" provision [presumably the "aforesaid" *'* being a reference to the sub-clauses (1) and (2) of clause 25] which were not themselves reproduced, one cannot accurately , [determine the full extent of the rights and duties of the parties hto the contract <sup>L</sup> In\_\_any case, by singling out sub-clause (3) (a) as referred to above, we get only a horribly disjointed - if not a 10 wholly misleading - sense of the true rights of the parties. We Black the requisite comprehensive picture of the full rights and obligations of the parties. ^Jln^short, it is simply, impossible,from" <sup>a</sup> reading only of\_ the incomplete quotation of—clause 25, to ascertain, with any accuracy, whether ALCON' s property has passed into the ownership of NSSF as alleged, or not.

Learned cousel for the Objector submitted at great length about "possession" of the subject property. He quoted, among others, 0.19, r.40 and 0.19, r.57 of the CPR; cited the case of Harilal vs Buganda Industries [1960] EA 318; and even invoked certain assorted paragraphs from the [opposing] affidavits of Kiiza (the Bailiff) $\leq$ and Ashok Sharma (the General Managery/Plaintiff Company) - as proving the Objector's possession of the caterpillar and lorry. That may well be so. But whether that is so, or not, possession is not at all the crucial element in this case. Rather, the following considerations are the determining factors: 10

$-2.8 -$

- Possession obviously is the crucial element for purposes $(i)$ of 0.19, r.57 of the CPR, and for Harilal's case - since in both those situations (unlike the instant case), involve an attachment that has already been executed by the $\mathbb{P}_{\mathfrak{a}}^{\Lambda}$ and the only outstanding question is simply one of "releasing" the attached property. In the instant case, there is no dispute whatsoever about the non-execution of the attachment warrant - and, therefore, no question arises at all about releasing the attached property. ຊວ - (ii) Per Harilal's case (cited by the Objector), questions of legal right and title and ownership, are not to be disregarded totally. They are still relevant in so far as they affect the decision as to whether the possession is on account of or in trust for the judgment debtor or $2x$ In the instant case, Court has some other person. already held above that the Objector has not definitively and conclusively proved that the ownership of the subject property is now theirs, and not the Judgment Debtor's. Therefore, even if it is established that the property is Z: in the Objector's possession, such Objector's possession would only be on account of/in trust for the Judgment Debtor - or somebody else for that matter. - iii) As long as the vehicle/caterpillar are still formally registered in the names of the Judgment Debtor, there is $\overline{\zeta\zeta}$ the legal presumption that ownership is still in the

Judgment Debtor, unless proved otherwise - see Section 49 of the Traffic and Road Safety Act (No.33 of 1970), which reads as follows:

$-29-$

"49 - The person in whose name a motor vehicle, $\mathbb{S}$ trailer or engineering plant is registered shall, unless the contrary be proved, be presumed to be the owner $\quad\texttt{of}\quad$ the motor vehicle, trailer $or/$ engineering plant".

(iv) True ownership of a registered motor vehicle/ caterpillar by the Objector can only be established by compliance 10 with Section 50 of the Traffic and Road Safety Act which requires new registration $\verb|of|$ the vehicle/caterpillar, by the new buyer/transferee, within the specified grace period of 7 days after sale or "other disposition of any kind whatsoever" - such as 15 the disposition now claimed by the NSSF by reason of the provision of the alleged contract between the NSSF and ALCON.

There is no such statutory compliance in the instant case - no evidence to that effect has been even attempted, let alone proved. $2n$

In the circumstances, Court finds no proven ownership by NSSF of the subject caterpillar and lorry. There is, therefore, absolutely no reason to lift, revoke, or otherwise interfere with the Warrant of Attachment that was issued in respect of that property. Accordingly, there is no justification for the Court to stop the Bailiff in this case from proceeding with the attachment and sale of the subject property.

Objector' application for "investigation" having been The satisfied and concluded as above, Court denies the Objector's prayer for a stay of the attachment and sale of the subject $\delta$ property (i.e. the lorry and caterpillar covered by the Warrant of Attachment). The costs of this application are awarded to the Plaintiff.

$\mathsf{S}$

Before disposing of this matter completely, I must now turn to the issue of the joinder of the Bailiff as a party to this application. I agree with counsel for the Bailiff that the Bailiff has indeed been joined in this matter as a party - notwithstanding the Objector's protestation to the contrary. The heading of the $\overline{\smash{\right\}}$ Objector's documentation (Notice of Motion, Affidavit, etc.) clearly indicate that the Bailiff is a party. More informally, however, the Bailiff has been served with the Notice of Motion (see The Bailiff like other judicial officer. page 2 thereof). is protected against civil suit in carrying out his official duties - lo see Section 48(1) of the Judicature Act, which provides as follows:

$-30 -$

$148$ $(1)$ $\cdot$ $\cdot$ $\cdot$ (2) An officer of the court or other person bonded to execute any order or warrant of any judge or person referred to in sub-section (1) of this section acting $\sqrt{ }$ judicially, shall not be liable to be sued in any civil court in respect of any lawful or authorised act done in the execution of any such order or warrant."

In any case, for the Objector to join the Bailiff as a party to these proceedings, the proper rule to invoke should have been 0.1, $\lambda_0$ r.10 (not 0.19, r.55(1)) of the CPR. Coincidentally, $0.1$ , $r.10$ (2) permits Court either upon or without the application of either party, to order that the name of any party improperly joined whether as plaintiff or defendant be struck out.

Accordingly, the Bailiff's name (Mr. Kiiza) is struck out from this $\mathcal{Q}_s$ . application. His taxed costs for this application are to be paid by the Objector/Applicant.

Ordered accordingly.

$\overline{\overline{a}}$

James Ogoola AG. JUDGE $23/06/98$

I pray for leave to appeal this ruling, under 0.40, Byamuqisha: r.1(2) of CPR; and pursuant to Kampala Bottlers Ltd. v Uganda Bottlers Ltd. S. Ct. Civ. Application No.25/95 (unreported). I also

apply for a temporary stay of execution under 0.39, $r.4(1)$ , (2) and (3) of CPR; and S.101 of Civil Procedure Act as supported by Lawrence Kyazze v Busingye, S. Ct. Civ. Application No.18/90 (unreported). We have made these applications without delay. We are prepared to deposit in Court as security for this appeal the decretal amount appearing on the Warrant, as well as the costs of the Bailiff (excluding the amount constituting the costs $\quad\texttt{of}\quad$ Bailiff's counsel).

laxe

$\mathcal{O}$

مړ

$25$

$-31-$

Lumweno: Given the above conditions, we would not object to learned counsel's two prayers.

Court: Leave to appeal granted (subject to the Objector meeting fully the conditions set forth in 0.39, $r.4(3)$ of the CPR). Objector to pay forthwith into Court as security the amount of Shs. $7\frac{1}{7}$ , $046\frac{1}{2}$ , $58\frac{9}{7}$ = stipulated in the Judgment Decree and shown in the Warrant, as well as the amount of the Bailiff's fcosts. In the meantime, attachment and sale of the subject property to be stayed pending the Objector's filing of appeal within fourteen days from the date of this ruling.

Jàmes Ogóola

DELIVERED IN OPEN COURT, IN THE PRESENCE OF:

Mr. Kakooza - NSSF Secretary

Mr. A. Kiyingi - NSSF Legal Officer

Dr. Byamugisha, Esq. - Counsel for Objector/Applicant: NSSF

Hatimi Lumweno, Esq. - Counsel for Plaintiff/TRANSAFRICA

Ms. B. Ssesonga - Court Clerk.

James Ogóola AG. JUDGE

$\overline{7}$

## IN THE HIGH COURT OF UGANDA AT KAMPALA

# MISCELLANEOUS APPLICATION NO. 529 OF 1998

(ARISING OUT OF HCCS NO. 473 OF 1998)

TRANSAFRICA ASSURANCE CO. LTD ............. PLAINTIFF $-$ versus $-$ ALCON INTERNATIONAL LTD .................. DEFENDANT a n d NATIONAL SOCIAL SECURITY FUND .............. OBJECTOR a n d KIZZA ...................................

#### ORDER

This application coming for final disposal before Hon. Mr. Justice Ogoola this 23rd day of June 1998 and after hearing Dr. Byamugisha for the objector and Mr. Lumweno for the plaintiff/decree-holder it is ordered<br>that the application be and is hereby dismissed with costs.

WE APPROVE

COUNSEL FOR THE PLAINTIFF/ DECREE-HOLDER

GIVEN under my hand and the Seal of this Court this...day of .... O. C. V..... 1998.

DRAWN & FILED by:

BYAMUGISHA & RWAHERU ADVOCATES, P. O. BOX 9400, KAMPALA.