Wakilii

Nyakato Josephine v Ecumenical Church Loan Fund Ltd (High Court Miscellaneous Application No. 381 of 2008)

High Court · [2009] UGCOMMC 19 · 2009 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Objector application under Order 22 rules 55-58 of the Civil Procedure Rules to set aside attachment of immovable property in execution proceedings
Decision
Property released from attachment and restored to the Applicant

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

An objector who produces a sale agreement showing she purchased property in her own name, takes possession, collects rent from tenants, and whose possession is not rebutted by credible contrary evidence satisfies the requirements of Order 22 rules 56-58 of the Civil Procedure Rules. The burden lies on the execution creditor to prove the objector held property in trust for the judgment debtor. The fact that the objector has children with the judgment debtor does not establish that property registered in her name belongs to him.

Outcome

Property released from attachment and restored to the Applicant

Facts

The Respondent obtained a consent judgment against four defendants including Byarugaba Benjamin for recovery of Shs 90,875,000 with interest. A warrant of attachment was issued on 30 June 2008 targeting, among other properties, a residential house in Kijura North, Masindi. On 17 July 2008 the Applicant found the warrant affixed to her door. She filed an objector application on 22 July 2008. The Applicant claimed she purchased the house on 12 April 2006 from Binangaijo Apuuli for Shs 5,500,000, took possession, and has collected rent from tenants. She admitted she has two children with the judgment debtor and that he used to stay with her but denied they were married or that he contributed to acquiring the property. The Respondent, through a bailiff's affidavit, claimed the judgment debtor was the landlord and that the Applicant was his wife. The Applicant produced the sale agreement, receipt book showing rent collection, and testified she occupied part of the house while renting out the remainder.

Issues

  1. Whether the application was filed without designedly delay as required by Order 22 rule 55(1) of the Civil Procedure Rules.
  2. Whether the Applicant had an interest in the attached property at the date of attachment.
  3. Whether the Applicant was in possession of the property at the time of attachment and held it on her own account or in trust for the judgment debtor.

Orders

  • Application allowed.
  • The residential house located in Kijura North LCI Masindi is removed from attachment.
  • Costs of the application awarded to the Applicant.

Rules and key headnotes

Civil Procedure — Objector Proceedings — Requirements for Success
An objector application under Order 22 of the Civil Procedure Rules must not be designedly delayed, the objector must adduce evidence of interest in the property at the date of attachment, and must prove possession held on the objector's own account and not in trust for the judgment debtor.
Civil Procedure — Objector Proceedings — Standard of Proof and Burden
In objector proceedings, the burden of proof that the objector held the property in trust for the judgment debtor lies on the execution creditor. The objector's uncontroverted sworn testimony of ownership is sufficient absent credible rebuttal evidence.
Civil Procedure — Objector Proceedings — Possession
For purposes of Order 22 of the Civil Procedure Rules, possession does not require the objector to be physically present or in actual occupation at the moment of attachment. Possession refers to being in control of the property, which may be demonstrated by collecting rent from tenants and occupying a portion of the premises.
Land & Property — Ownership — Individual Ownership Despite Relationship
A woman staying with a man and having children with him does not necessarily establish a husband and wife relationship. Even where such a relationship exists, spouses can own property in their individual capacities. Property purchased in one party's name is not automatically held in trust for the other party absent evidence of the latter's contribution or intention to create a trust.

Legislation cited (10)

Cases cited (4)

  • David Muhenda & Others v Margaret Kamuje (Supreme Court Civil Appeal No. 9 of 1999)
  • Herilal & Co v Buganda Industries Ltd (1960) EA 318
  • Betty Namugenyi v Daisen Co Ltd & Anor and Forward International Co Ltd (Objector) (High Court Miscellaneous Application No. 522 of 2005)
  • Richard Sendaula v Haji Ali Lubega & May Senyonyi (High Court Miscellaneous Application No. 85 of 2004)

Full judgment

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

Nyakato Josephine v Ecumenical Church Loan Fund Ltd (High Court Miscellaneous Application No. 381 of 2008) [2009] UGCommC 19 (15 February 2009)
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.