[2025] UGCommC 133

# 5 **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT KAMPALA**

### **(COMMERCIAL DIVISION)**

### **ORIGINATING SUMMONS NO. 03 OF 2025**

#### **NCBA BANK UGANDA LIMITED ::::::::::::::::::::::::::::::::::::::::: PLAINTIFF**

#### 10 **VERSUS**

## **1. MOSES KAMOGA**

**2. MARIA NAMUSOKE :::::::::::::::::::::::::::::::::::::::::::::::::: DEFENDANTS**

## **BEFORE: HON. LADY JUSTICE PATIENCE T. E. RUBAGUMYA**

## 15 **JUDGMENT**

#### Introduction

This suit was brought by way of Originating Summons seeking:

- 1. An order to foreclose and delivery of possession of the mortgaged properties. - 20 2. Costs of the suit.

## Brief facts

The brief facts of this suit are contained in the affidavit in support deponed by **Ms. Brenda Kyokwijuka** the Plaintiff's Manager Legal services and Governance, and is summarized below:

25 That from August, 2015, the Plaintiff advanced various credit facilities to Deox Tibeingana T/a Tibeingana & Co. Advocates (the mortgagor) which were secured by among others a legal mortgage on FRV 1531 Folio 15 Plot 2 Church Close at Mbuya II, Nakawa Division, Kampala with Condominium properties; FRV KCCA239 Folio 14 Unit No. 21 Plot 2

- 5 Church Close, Nakawa Division, Kampala, FRV KCCA239 Folio 12 Unit No. 19 Plot 2 Church Close, Nakawa Division, Kampala, FRV KCCA239 Folio 9 Unit No. 16 Plot 2 Church Close, Nakawa Division, Kampala and FRV KCCA449 Folio 3 Unit No. 6 Plot 55 Chwa II Road, Nakawa Division, Kampala. That the mortgagor defaulted on the loan facilities to which a - 10 reconciliation agreement/arrangement deed was done and therein it was agreed that the mortgagor would pay the discounted outstanding amount within 6 months' failure of which the bank would be at liberty to enforce the security. - That the mortgagor failed to settle the outstanding amount as agreed and 15 to that the Plaintiff foreclosed Units No. 21 and 6. Upon the foreclosure, it was realized that the amounts realized were insufficient to satisfy the entire outstanding amount and hence the need to also foreclose Units No. 19 and 16. That sometime in 2024, the 1st Defendant approached the Plaintiff on behalf of both Defendants claiming to have purchased Units 20 No. 19 and 16 from the mortgagor and then offered to repurchase the same, to which the parties engaged in various discussions and negotiations. That the offers communicated by the 1st Defendant were inadequate to satisfy the outstanding amount which resulted into the Plaintiff proposing that a valuation be conducted to ascertain the market value of the properties. That despite having agreed to the valuation, the 1st 25 Defendant has continuously frustrated the valuation process by denying the valuers access to the properties. Further, that the Defendants wrongfully lodged caveats on the properties despite being aware that there was an already existing mortgage. Therefore, the Plaintiff filed this suit 30 seeking to be granted vacant possession and access to enable it inspect, value and sale the properties so as to recover the outstanding balance of the loan facility granted to the mortgagor and that the caveats be vacated.

- 5 The Defendants filed their affidavits in reply contending that around 2015, the 1st and 2nd Defendants purchased condominium Units No. 19 and No. 16 from the mortgagor respectively. That the mortgagor delayed to finalize the process of titling the suit properties but on 4th January, 2017 and 25th May, 2017, their land sale agreements were finally handed over to the 1st - 10 and 2nd Defendants respectively even though the mortgagor refused to hand over their respective certificates of title. That the 2nd Defendant purchased Unit No. 16 in the names of Markh Investments Company Limited.

That they were in possession of their respective properties from 2015 15 without any adverse claims until around 2022 when they were approached by the Plaintiff who claimed to have a mortgage interest in the properties. That the mortgagor's dealings with their properties after their purchase of the suit properties was done without their knowledge and or consent which was illegal and fraudulent. Further that the mortgagor informed the 20 Plaintiff about their interests in the suit properties and that the mortgagor also committed to settle the Plaintiff's claims in a specified period which time has not yet lapsed as per the arrangement deed.

In rejoinder, the Plaintiff reiterated its previous averments and added that prior to the creation of the condominium titles, FRV 1531 Folio 15 Plot 2 25 had been pledged as security and after their creation, the Plaintiff's security was transferred from the head title and registered as an encumbrance on the condominium titles. That as per the arrangement deed, the Plaintiff's interest is superior to that of the 1st Defendant and it was also agreed that he would wait until the debtor redeemed the title to 30 Unit 19 from the Plaintiff.

5 Further, that the Plaintiff's legal mortgage was registered long before the 1st Defendant's allegedly acquired interest and registered a caveat.

## Representation

The Plaintiff was represented by **M/s Shonubi, Musoke & Co. Advocates** while **M/s Lukwago & Co. Advocates** represented the Defendants.

10 Both parties were directed to file their written submissions but none of them complied with Court's directives.

## Issues for Determination

- 1. Whether the Plaintiff/mortgagee is entitled to foreclose and sale the mortgaged properties comprised in FRV KCCA239 Folio 12 Unit No. - 15 19 Plot 2 Church Close, Nakawa Division, Kampala and FRV KCCA239 Folio 9 Unit No. 16 Plot 2 Church Close, Nakawa Division, Kampala to recover money due to it? - 2. Whether the caveats lodged by the Defendants in respect of the properties comprised in FRV KCCA239 Folio 12 Unit No. 19 Plot 2 20 Church Close, Nakawa Division, Kampala and FRV KCCA239 Folio 9 Unit No. 16 Plot 2 Church Close, Nakawa Division, Kampala should be vacated? - 3. Whether the mortgagee is entitled to access the mortgaged properties to inspect the same for purposes of valuation and inspection by 25 prospective buyers? - 4. Whether the mortgagee is entitled to vacant possession of the mortgaged properties and to evict the Defendants and/or their agents or anyone claiming under them from the property and hand over vacant possession thereof to a purchaser for value? - 30 5. Whether the Plaintiff should be granted the costs of the suit?

#### 5 Analysis and Determination

**Section 101 of the Evidence Act, Cap. 8** is to the effect that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts exist. (See also **Sections 102, 103 and 104 of the** 10 **Evidence Act** and the case of *Sebuliba Busuulwa Vs Co-operative Bank Ltd [1982] HCB 129*).

**Order 37 rule 4 of the Civil Procedure Rules** stipulates that:

*"Any mortgagee or mortgagor, whether legal or equitable, or any person entitled to or having property subject to a legal or equitable* 15 *charge, or any person having the right to foreclose or redeem any mortgage, whether legal or equitable, may take out as of course an originating summons, returnable before a judge in chambers, for such relief of the nature or kind following as may be by the summons specified, and as the circumstances of the case may require; that is to* 20 *say, sale, foreclosure, delivery of possession by the mortgagor, redemption, reconveyance or delivery of possession by the mortgagee."*

Originating Summons is one of the modes of commencing a civil suit wherein; the dispute in question concerns a straight matter of law, there 25 is an unlikely substantial dispute of fact in the matter, affidavits are used as the pleadings for the case and oral evidence is not required since the matter can be resolved by relying on the affidavit evidence adduced by the parties. (See: *Guaranty Trust Bank (U) Ltd Vs Dokwals (U) Ltd & Another Originating Summons No. 01 of 2021* and *Jas Ventures* 30 *International Ltd Vs Okello Carlos Orach Originating Summons No. 08 of 2023*). It is now trite that Originating Summons are intended to

- 5 dispose of simple and non-contentious matters in a speedy manner. (See: **Order 37 rule 11 of the Civil Procedure Rules** and the case of *Nesta Petroleum (U) Ltd Vs Silcon Oil (U) Ltd & Another Originating Summons No. 03 of 2022*). - In the instant case, the Plaintiff seeks orders to foreclose, delivery of 10 possession and vacation of caveats on properties comprised in FRV KCCA239 Folio 12 Unit No. 19 Plot 2 Church Close, Nakawa Division, Kampala and FRV KCCA239 Folio 9 Unit No. 16 Plot 2 Church Close, Nakawa Division, Kampala so as to inspect, value and sale the same in order to clear the mortgagor's debt with them. - 15 A brief background of the case is that upon Deox Tibeingana T/a Tibeingana & Co. Advocates, the mortgagor, defaulting on the repayment of the credit facilities advanced to him, the Plaintiff foreclosed some of the mortgagor's condominium properties that had been mortgaged. That after the foreclosure of the said properties, it was established that the amounts - 20 realized were not sufficient to cover the outstanding amount and therefore the Plaintiff seeks to also foreclose on Units No. 19 and 16. However, the 1st and 2nd Defendants contend that they have interests in Units No. 19 and 16 respectively, having purchased the same from the mortgagor. That much as the mortgagor deliberately refused to give them their respective 25 certificates of title, their interests in the suit properties are captured under the mortgagor's arrangement deed with all his creditors, annexure **"D"** attached to the affidavits in reply and the supervisor's report about the arrangement deed, annexure **"E"** also attached thereto.

According to annexure **"B"** a land sale agreement attached to the 1st 30 Defendant's affidavit in reply, the 1st Defendant purchased unit No. 19 from Deox Tibeingana on 4th January, 2017 while the 2nd Defendant

5 purchased unit No. 16 from the same mortgagor on 25th May, 2017 as per annexure **"B"** a land sale agreement attached to the 2nd Defendant's affidavit in reply. The certificates of title and search reports in respect of unit No. 19 and unit No. 16 were adduced as annexures **"A"** attached to the affidavits in reply and annexures **"J"** attached to the affidavit in 10 support respectively. I have carefully perused the same and observed that as at 6th February, 2025, the registered owner of Units No. 19 and 16 was Tibeingana Deox and on 30th August, 2016, the Plaintiff (formerly NC Bank and Commercial Bank of Africa) registered its legal mortgage vide instrument No. KCCA-00031292. Further, that the 1st Defendant lodged his caveat in respect of unit No. 19 on 12th June, 2018 and the 2nd 15 Defendant lodged her caveat in respect of unit No. 16 on 5th April, 2018.

The Plaintiff also contests the sale of the suit properties to the Defendants on grounds that the said purchase was without its consent, knowledge and/or approval. On the other hand, the Defendants also contest the 20 mortgaging of their properties to the Plaintiff averring that it was fraudulent since they have been in possession of the same since 2015. Also, the Plaintiff further avers that the Defendants wrongfully lodged the caveats on the properties since they were aware that there was an existing mortgage to which the Defendants contend that the same were lodged to 25 protect their interests having discovered that their properties had been encumbered with a mortgage.

In my opinion, the disputed facts are not straight forward and require oral evidence to support the contentions of both parties before Court can pronounce itself on the rights being sought to be enforced. As a result, I 30 find that all the above factual discrepancies raise fundamental contestations over the facts being relied upon by the Plaintiff. As was held

- 5 in the case of *Jas Ventures International Ltd Vs Okello Carlos Orach (supra)*, where there are fundamental contestations over facts, it is best to decline to answer the questions in the summons and insist that those matters are tried in a suit commenced by a plaint. Therefore, I am not satisfied that this is a proper procedure for determination of the issues - 10 raised in the instant Originating Summons given the factual discrepancies that require further investigation by Court.

In the premises, I hereby make the following orders:

1. This Originating Summons is hereby dismissed. The Plaintiff may, if it so desires, commence an action by plaint, subject to the laws of 15 limitation.

2. Each party shall bear their own costs.

I so order.

Dated, signed and delivered electronically via ECCMIS this **23rd** day of **May**, **2025.**

Patience T. E. Rubagumya **JUDGE** 2523/05/2025