Wakilii

Aliganyira & Anor v Kabakumba & Anor (Miscellaneous Application No. 0163 of 2014)

High Court · [2016] UGHCCD 1 · 2016 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to release property from attachment and sale following execution proceedings
Decision
Property released from attachment; judgment creditor to seek alternative remedies for satisfaction of decree

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that an objector seeking release of property from attachment must show possession at the time of the attachment order and that such possession was on his own account, not the judgment debtor's. Where the objector produced a sale agreement showing he purchased the property from the judgment debtor three years before attachment, and the evidence in opposition relied only on an LCI Chairperson's letter stating the judgment debtor's name remained on the building without rebutting the sale, the court granted the application and released the property from attachment.

Outcome

Property released from attachment; judgment creditor to seek alternative remedies for satisfaction of decree

Facts

On 10 March 2014, the court registrar issued a warrant of attachment and sale of a commercial house with rental rooms in Kijura Central to satisfy a decretal sum of UGX 52 million arising from an election petition against Kyotasobora Phinehas. The property was advertised for sale in newspapers on 13 November 2014. Aliganyira Moses Sabiti objected, claiming he was the owner, having purchased the property from Kyotasobora on 3 October 2010 for UGX 150 million under a written sale agreement witnessed by seven people. The court issued an interim order staying the sale. The court bailiff deposed he investigated and consulted the area LCI Chairperson, who stated by letter that the property belonged to the petitioner because he was unaware of any sale and the petitioner's name remained on the building. Kyotasobora filed an affidavit confirming he sold the property to the objector and annexed the sale agreement and payment schedules. The property had not yet been sold.

Issues

  1. Whether the objector was in possession of the suit property at the time when the order of attachment and sale was made.
  2. Whether such possession by the objector was on his own account, but not on account of the petitioner (judgment debtor), thus rendering the suit property not liable for attachment.

Orders

  • Application granted.
  • The commercial house with rental rooms at Kijura Central is released from attachment.
  • The respondent should seek other remedies to get satisfaction of her decretal sum.
  • Costs awarded to the objector/applicant.

Rules and key headnotes

Civil Procedure — Execution — Objections to Attachment — Test for Release of Property
In an application for release of property from attachment under Order 22 rules 55 and 57 of the Civil Procedure Rules, the court must investigate and ascertain whether the objector was in possession of the property at the time the order of attachment was made, and whether such possession was on the objector's own account and not on account of the judgment debtor, thus rendering the property not liable for attachment.
Civil Procedure — Evidence — Affidavits — Amended Affidavits
There is no affidavit known in law as an 'amended affidavit'. An affidavit is evidence on oath and once deposed to, it cannot be the subject of amendment by the deponent. Where additional evidence is needed, a supplementary affidavit may be filed.
Civil Procedure — Execution — Attachment — Scope of Investigation
The investigation in respect of property due for attachment and sale is limited in scope under Order 22 rule 60 of the Civil Procedure Rules and does not extend beyond determining the objector's possession and interest in the property.
Civil Procedure — Evidence — Hearsay — Counsel's Affidavit Based on Information from Others
An affidavit by counsel deposing only to matters learned from other parties, where those other parties have not given evidence or deposed their own affidavits, is of no evidentiary value in proceedings.

Legislation cited (3)

  • Civil Procedure Rules O.22 r.55
  • Civil Procedure Rules O.22 r.57
  • Civil Procedure Rules O.22 r.60

Cases cited (2)

  • Uganda Mineral Water Ltd v Piran & Anor (1994/95) HCB 87
  • Muhumuza Hilary v Keith Kalyegira (Miscellaneous Application No. 364 of 2011)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Aliganyira & Anor v Kabakumba & Anor (Miscellaneous Application No. 0163 of 2014) [2016] UGHCCD 1 (24 March 2016)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.