Wakilii

Makubuya v Songdoh Films (U) Ltd & Anor (MISCELLANEOUS APPLICATION NO.321 OF 2018)

High Court · [2018] UGHCCD 93 · 2018 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for security for appearance and/or attachment before judgment arising from civil suit for breach of tenancy agreement
Decision
Application granted with order for security to be furnished within one month

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Holding

The court granted the application and ordered the respondents to furnish security of UGX 100,000,000 within one month. The court found that while attachment before judgment is a drastic measure requiring clear proof, the applicant established reasonable and probable cause to believe the 2nd respondent, a foreign national, might leave the jurisdiction. The respondents failed to adequately demonstrate their capacity to satisfy any decree through evidence of assets within Uganda. The preliminary objection regarding the applicability of Order 40 was dismissed.

Outcome

Application granted with order for security to be furnished within one month

Facts

The applicant, trading as Pollaplast, filed a civil suit against the respondents for breach of a tenancy agreement and unlawful detention of his products. He then brought this application seeking a warrant of arrest against the 2nd respondent (a Korean national) or alternatively an order requiring the respondents to deposit UGX 400,000,000 or furnish security. The applicant alleged the 2nd respondent was about to leave Uganda and that the respondents had disposed of machines that gave rise to the main suit. The respondents opposed the application, arguing the claim was fictitious, that they owned substantial assets in Uganda worth billions, and that the application was based on speculation. A preliminary objection was raised regarding the applicability of Order 40 given the nature of the claim.

Issues

  1. Whether the application falls within the ambit of Order 40 of the Civil Procedure Rules given the nature of the claim.
  2. Whether the applicant has shown sufficient grounds to warrant an order for security or attachment before judgment.
  3. Whether there is reasonable and probable cause to believe the 2nd respondent will leave the jurisdiction or dispose of assets to defeat any decree.

Orders

  • The respondents shall furnish security to court of a value of UGX 100,000,000 (either in form of bank guarantee or property) within 1 month from the date of the ruling.
  • The main suit shall be disposed of within a period of six months.
  • Application allowed.
  • Costs shall be in the cause.

Rules and key headnotes

Civil Procedure — Attachment Before Judgment — Standard of Proof Required
The power to arrest a defendant or attach property before judgment is a drastic action that must be exercised with due care, caution and circumspection. The court must have reason to believe on adequate material that unless the power is exercised, there is real danger that the defendant will remove himself or his property from the jurisdiction. Clear and convincing proof is required that the order is needed for the protection of the plaintiff.
Civil Procedure — Attachment Before Judgment — Purpose and Objectives
The purpose of an interlocutory application for attachment before judgment is to enable the court to grant such interim relief as may be just or convenient, to preserve a fair balance between the parties and give them due protection while awaiting the final outcome of the proceedings. The main object is to prevent any attempt by the defendant to evade the course of justice and avoid any decree that may be passed, serving as a guarantee against a decree becoming infructuous for want of available property.
Civil Procedure — Attachment Before Judgment — Defendant's Right to Deal with Property
A person is not debarred from dealing with his property merely because a suit has been filed against him. The power of attachment before judgment practically takes away the power of alienation, and such a restriction on the undoubted rights of ownership ought not to be imposed except upon clear and convincing proof. The sale of property during the pendency of proceedings does not automatically satisfy the court that disposal is with intent to defraud the plaintiff.
Civil Procedure — Security for Appearance — Reasonable and Probable Cause
The question of reasonable and probable cause for believing a defendant is about to leave the jurisdiction depends not upon the actual existence of such intention, but upon reasonable bona fide belief in its existence. Such belief may arise from the applicant's own information or from information furnished by others.

Legislation cited (5)

Cases cited (2)

  • Chandrika Prashad Singh v Hira Lal (AIR (1924) Pat 312)
  • John Lewis v The Times [1952] AC 676

Full judgment

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

Makubuya v Songdoh Films (U) Ltd & Anor (MISCELLANEOUS APPLICATION NO.321 OF 2018) [2018] UGHCCD 93 (14 September 2018)
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.