RevEzra Bikangiso v New Makerere Kobil Station (HCT-00-CC-MA 10 of 2010)
Observed later treatment
No later-treatment classification is recorded for this judgment.
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Holding
Held that an applicant seeking release of attached property must establish actual or constructive possession at the date of attachment. Where a memorandum of understanding purporting to transfer a leased vehicle was executed after the head suit was filed, contained deliberate falsehoods about encumbrances, and no independent evidence of possession was shown, the court will find it was entered into to defeat execution and dismiss the application.
Outcome
Application for release of attached property dismissed
Facts
The applicant sought release of a bus (UAK 948T) attached pending judgment in Civil Suit No. 425 of 2009 against M/S Alliaz Tours and Travel Ltd. The applicant claimed to have purchased the bus from Alliaz Pharmacy Ltd pursuant to a Memorandum of Understanding dated 12 December 2009. The respondent had filed the head suit on 12 November 2009 for unpaid fuel supplied to buses including the attached vehicle. The bus was on lease with Stanbic Bank which held the logbook as security. The Memorandum of Understanding warranted the bus was without encumbrance. The same director Mr. Chris Kakama accepted court process in the head suit in November 2009 and signed the Memorandum on behalf of Alliaz Pharmacy Ltd in December 2009. No independent evidence of actual or constructive possession by the applicant was adduced.
Issues
- Whether the attached motor vehicle should be released from attachment pending judgment where the applicant claims ownership through a memorandum of understanding executed after the head suit was filed.
- Whether the applicant established actual or constructive possession of the attached bus at the time of attachment.
- Whether the memorandum of understanding was entered into for the express purpose of defeating execution.
Orders
- Application dismissed.
- Costs awarded to the respondent.
Rules and key headnotes
Legislation cited (5)
Cases cited (4)
- Joseph Mulenga v FIBA (U) Ltd (Miscellaneous Application No. 308 of 1996)
- Trans Africa Assurance Co v National Social Security Fund (Civil Appeal No. 1 of 1999)
- Chotabhai M. Patel V Chaturbhai M. Patel & Anor [1958] 1 EA 743 (HCU)
- Harilal & Co. V Buganda Industries Ltd [1960] 1 EA 318 (HCU)
Full judgment
The original judgment as reported. Read the original PDF before relying on any passage.