TS Consultants v C & Q Associates (Miscellaneous Application No. 1246 of 2022) [2023] UGCommC 293 (3 March 2023)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA [COMMERCIAL DIVISIONI MISCELLANEOUS APPLICATION NO. 1246 OF2022

### IARISING FROM EXECUTION MISCELLANEOUS APPLICATION NO. 342 OF 20211

# lARrsrNG FROM CrVrL SUIT NO. 0638 OF 20181

TS CONSULTANTS :::::::::::::::::::!::::::::::::::::::::::::::::::::::APPLICANT

#### VERSUS

C & Q ASSOCIATES: : : :: : : : :: : : : :: : : : : : : : : : : : : : : : : :: : : : :: : : : : :: :: : :: : :RESPONDENT

#### BEFORE: HON. LADYJUSTICE ANNA B. MUGENYI

#### RULING

#### INTRODUCTION

This application was brought by notice of motion under Section 98 of the Civil Procedure Act (CPA) and Order 52 Rules I & 2 of the Civil Procedure Rules for orders that:

- l. An order doth issue against the Respondent, his workmen, agents, tenants, and nominees prohibiting them from denying the applicant and anyone acting on his behalf access to inspect property situated at Plot l4 Martyrs Drive (Ntinda) LRV KCCA 219 Folio 2 which is subject of an order of attachment of this Honourable Court vide EMA No. 342 of 2021 . - 2. An order authorizing the court-appointed bailiffs, I\4/S MK Mutara & Associates, to access the property subject of attachment for purposes of allowing the bidders and or potential buyers to inspect before tendering in a formal bid. - 3. An order doth issue against the respondent to deliver up the duplicate certificate of title deed for the property comprised in Plot 14 Martyrs Drive (Ntinda) LRV KCCA 219 Folio 2.

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The application was supported by the affidavit of Moses Magezi,a court-appointed bailifl and opposed by the affidavit in repry of virg, taouso]tne .\*;gi;g partner ofthe respondent.

# BACKGROUND

The facts giving rise to this application are that this court issued a warrant of attachment in Execution Miscellaneous Application No. 342 of 202r on october 7, 202l,for property comprised in plot 14 Vurry., Drive (Ntinda) LRV KCCA 219 Folio 2' The attached property was advertised for sale in the Daily tutonito, o, October 14,2021, and a public auction was conducted after 30 days.

The applicant contends that upon conducting the auction, bidders demanded to inspect the property before making bids howlver the respondent has consistently frustrated the efforts to access the property for inspection, which is a standard due diligence practice in the sale oflanded property.

The applicant contends that the respondent's agents and tenants have been instructed not to grant the bailiffaccess, leading to physical altercations and the respondent has deliberately declined to hand over the irpti"ut. certificate oftitle for the attached property, attempting to frustrate the recovery of the decretal sum.

The respondent, in reply, contends that the warrant of attachment was overtaken by events upon the judgment debtor and creditor entering into a paymen, ptun ro, ,r," decretal sum. The respondent contends that it has already made two payments to the judgment creditor. The respondent further argued that the warrant ofexecution and s.ale was rendered nugatory by the aforesaid agreement between the creditor and the debtor and that the appricant undervalued the property at Ugx 200,000,000/: yet its actual value is over one billion.

# REPRESENTATION

The applicant was represented by IWs Lawgic Advocates whereas the respondent was represented by M/S MBS Advocates.

# DECISION

Ihave read the pleadings of the parties and listened to the submissions ofcounser.

The issues to be resolved are as follows:

l. Whether the respondents, his workmen, agents, tenants, and nominees should be prohibited from denying the appricant and its agent access to

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the property in Plot 14 Martyrs Drive (Ntinda) LRV KCCA 219 Folio 2 for purposes of inspection.

- 2. Whether the court-appointed bailiffs, M/S MK Mutara & Associates, should be authorised to access the property subject of attachment for purposes of allowing the bidders and or potential buyers to inspect before tendering in a formal bid. - 3. Whether the respondent should deliver up the duplicate certificate of title deed for the property comprised in Plot 14 Martyrs Drive (Ntinda) LRV KCCA 219 Folio 2.

I will proceed to address all three issues together because they are interrelated.

Section 98 of the CPA provides that:

"Nothing in this Act shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court".

The above provision gives this Court the power to make orders to attain the ends of justice and to prevent abuse of the process of Court.

In the present case, upon the applicant obtaining a warrant of attachment on 7th of October 2021 and advertising the property on 14th of 2021, it entered into a payment agreement with the respondent in 2022. This can be seen in the subsequent payments made by the respondent as hereunder:

- a. Annexure A of the affidavit in reply contains the payment agreement dated the 20/09/2022 where the applicant acknowledges the receipt of USD 3000 as part payment of USD 20,000 which is the principal amount. Under this said agreement, the respondent undertook to pay USD 3000 on the 20/10/2022 and to complete the balance of USD 14,000 on the 30/12/2022. The parties agreed to deal with the issue of interest later. - b. Annexure B contains a payment receipt dated the 31/10/2022 where the applicant acknowledged receipt of USD 3000 leaving an outstanding balance of USD 14,000 that was to be paid on the $30/12/2022$ .

It is important to note that the present application was filed on $8th$ of September 2022 before the applicant and the respondent entered into the payment agreement for the decretal sum. By entering into the payment agreement/payment schedule, it was implied that the applicant/judgment creditor would recover the judgment debt from the respondent/judgment debtor without any recourse to the attachment and sale of the respondent's property situated at Ntinda.

During the locus visit, counsel for the respondent argued that the outstanding amount is now USD 1,000 from the initial USD 20,000 and this is because the respondent has been making payments. Counsel for the applicant argued that what has always been paid to the applicant has been piecemeal payments.

The above evidence shows that indeed the respondent has been making payments. The issue of whether it has been following the timelines set in the agreement has not been pleaded or argued by both parties and this Court will not therefore dwell on it.

Furthermore, during submissions, counsel for the respondent argued that the status quo of the property had changed as the property had been transferred to another person. This ground was not pleaded in the respondent's affidavit. However, this Court conducted a locus visit at the property at Plot 14 Martyrs Drive (Ntinda) LRV KCCA 219 Folio 2. During the locus visit, counsel for the applicant informed the court that it was true that the property had been transferred and that the new owner of the property is called Michael Edusu and he is the son of the judgment debtor to which the applicant has made an application to the Commissioner in the Ministry of Lands to cancel the title on grounds of illegality.

The applicant also admitted during the locus visit that they had just learned recently that the house had changed hands. Further during the locus visit, this Court observed that the respondent's wife was still in occupation of the property but stated that she was in the process of vacating the same. Allowing such property with the above challenges to be inspected by bidders for purposes of extending formal bids would not be in the interest of justice.

I, therefore find that the application is overtaken by events. This application is accordingly dismissed.

Each party will be their costs of the application.

Mmb tatu

HON. LADY JUSTICE ANNA B. MUGENYI DATED...................................