Wakilii

Ferdsult Engineering Services Limited and Another (Consitutional Petition 18 of 2021)

Constitutional Court · [2023] UGCC 105 · 2023 Petition Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137 of the Constitution challenging the constitutionality of Regulation 13(1) of the Mortgage Regulations 2012
Decision
Petition dismissed for lack of merit; Regulation 13 of the Mortgage Regulations 2012 upheld as constitutional

The full judgment

Read the complete, verbatim text of this judgment.

Sign in to read the full judgment

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Constitutional Court held that the petition raised genuine questions of constitutional interpretation and was not a disguised appeal, so the Court had jurisdiction. On the merits, however, Regulation 13(1) of the Mortgage Regulations 2012 — requiring a mortgagor to deposit 30% of the forced sale value or outstanding amount to stop or adjourn a sale — was not unconstitutional. It does not bar access to court (the mortgagor is heard before the deposit is triggered), is distinguishable from the Tax Appeals Tribunal deposit in Fuelex, does not offend the right to property in a private contractual relationship, applies equally to all mortgagors, and is intra vires the Mortgage Act and Article 79. The petition was dismissed.

Facts

The Petitioners, mortgagors, had sued ABSA Bank (formerly Barclays Bank) in the High Court Commercial Division challenging the intended sale of their mortgaged property. They applied for a temporary injunction; the Registrar, acting under Regulation 13(1) of the Mortgage Regulations 2012, granted the injunction on condition that they deposit 30% of the outstanding loan amount within 45 days. Their appeal against that condition to a High Court judge was dismissed and the Registrar's orders upheld. Aggrieved, the Petitioners brought this constitutional petition seeking declarations that Regulation 13(1) — which requires a mortgagor, spouse, agent or other interested party to deposit 30% of the forced sale value or outstanding amount before a sale can be stopped or adjourned — is inconsistent with various provisions of the Constitution, and sought a permanent injunction restraining enforcement of the Regulations.

Issues

  1. Whether the Petition raises any matter that requires the interpretation of the Constitution.
  2. Whether the Petition is a disguised appeal against the decision of the High Court in respect of the application for an injunction.
  3. Whether Regulation 13(1) of the Mortgage Regulations 2012, requiring payment of a 30% security deposit before stopping or adjourning a sale, is inconsistent with Articles 21, 28, 44, 126(1) and 128 of the Constitution.
  4. Whether Regulation 13(1) of the Mortgage Regulations 2012 is inconsistent with Article 26 of the Constitution in so far as it offends the right to property and facilitates taking of property without fair and just compensation.
  5. Whether the passing of the Mortgage Regulations 2012 by the Minister, including Regulation 13(1), is ultra vires the Mortgage Act and contravenes Article 79 of the Constitution.
  6. Whether the act of courts or any other person enforcing Regulation 13(1) is unconstitutional under Articles 21, 28, 44, 79 and 126(1) of the Constitution.
  7. Whether the Petitioners are entitled to the remedies sought.

Orders

  • The Petition raises matters that merit the interpretation of the Constitution.
  • Regulation 13(1) and (4) of the Mortgage Regulations 2012 does not contravene and is not inconsistent with Articles 21, 28, 44, 126(1) and 128 of the Constitution.
  • Regulation 13(5) of the Mortgage Regulations 2012 does not contravene and is not inconsistent with Article 26 of the Constitution.
  • The act of the courts or any other person enforcing Regulation 13(1) does not contravene Articles 21, 28, 44, 79 and 126(1) of the Constitution.
  • The passing of the Mortgage Regulations 2012 by the Minister is not ultra vires the Mortgage Act and does not contravene Article 79 of the Constitution.
  • The Petition fails and is dismissed for lack of merit.
  • Each party to bear its own costs.

Key headnotes

Constitutional Law — Jurisdiction of the Constitutional Court — Disclosure of a Cause of Action under Article 137(3)
A constitutional petition discloses a cause of action where it describes the act or omission complained of and identifies the provision of the Constitution alleged to be contravened, and a petitioner does not lose the right to petition the Constitutional Court merely because a lower court declined to refer the question for interpretation.
Constitutional Law — Right to Fair Hearing and Access to Court — Conditional Deposit before Stopping a Mortgage Sale
A statutory requirement that a mortgagor deposit a percentage of the forced sale value before a sale is stopped or adjourned does not offend the right to a fair hearing or access to court where the mortgagor is heard on the application before the deposit is triggered, the deposit being a condition of relief already granted rather than a precondition to being heard.
Land & Property — Right to Property under Article 26 — Application to Private Contractual Mortgage Relationships
Article 26 of the Constitution protects against compulsory acquisition or taking of property by the State and does not govern disputes arising out of contractual relationships between private parties; a mortgagor who voluntarily entered a mortgage cannot claim that enforcement of the mortgagee's contractual remedies amounts to unconstitutional deprivation of property.
Human Rights — Equality and Non-Discrimination under Article 21 — Generally Applicable Financial Requirements
A legal requirement that applies equally to all persons in the same circumstances is not discriminatory merely because some affected persons may lack the financial means to comply; inability to meet a generally applicable deposit requirement is a factual circumstance and not a basis for alleging unconstitutional discrimination.
Statutory Interpretation — Delegated Legislation — Ultra Vires and Article 79
Subsidiary legislation made within the scope of the rule-making power conferred by the parent Act, and for the better carrying into effect of its purposes, is intra vires and does not usurp Parliament's legislative authority under Article 79; the burden lies on the challenger to prove the regulations are arbitrary, irrational or illegal.

Legislation cited (20)

  • Constitution of the Republic of Uganda 1995 art.20
  • Constitution of the Republic of Uganda 1995 art.21
  • Constitution of the Republic of Uganda 1995 art.26
  • Constitution of the Republic of Uganda 1995 art.28
  • Constitution of the Republic of Uganda 1995 art.43
  • Constitution of the Republic of Uganda 1995 art.44
  • Constitution of the Republic of Uganda 1995 art.79
  • Constitution of the Republic of Uganda 1995 art.126
  • Constitution of the Republic of Uganda 1995 art.128
  • Constitution of the Republic of Uganda 1995 art.137
  • Mortgage Act No.8 of 2009 s.8
  • Mortgage Act No.8 of 2009 s.20
  • Mortgage Act No.8 of 2009 s.21
  • Mortgage Act No.8 of 2009 s.26
  • Mortgage Act No.8 of 2009 s.33
  • Mortgage Act No.8 of 2009 s.41
  • Mortgage Regulations No.2 of 2012 reg.13
  • Tax Appeals Tribunal Act s.15
  • Constitutional Court (Petitions and References) Rules SI No.91 of 2005 r.3
  • Civil Procedure and Limitation (Miscellaneous Provisions) Act Cap 72 s.2(1)(b)

Cases cited (22)

  • Ismail Serugo v Kampala City Council & Another (Constitutional Appeal No. 2 of 1998)
  • Fuelex (U) Ltd v Uganda Revenue Authority (Constitutional Petition No. 3 of 2009)
  • Uganda National Roads Authority v Asuman Irumba & Another (Constitutional Appeal No. 2 of 2014)
  • Kingston Enterprises & Others v Standard Chartered Bank (Civil Appeal No. 0446 of 2021)
  • Ferdsult Engineering Services Ltd & Another v Absa Bank Ltd (HCMA No. 21 of 2021)
  • Petnum Pharmacy Ltd v National Drug Authority (Miscellaneous Cause No. 56 of 2018)
  • Attorney General v Major General David Tinyefuza (Constitutional Appeal No. 7 of 1997)
  • Jude Mbabaali v Edward Kiwanuka Sekandi (Constitutional Petition No. 28 of 2012)
  • Hon. Sam Kuteesa & 2 Others v Attorney General (Constitutional Petition No. 46 and Constitutional Reference No. 54 of 2011)
  • Hunter v Chief Constable of the West Midlands Police [1982] AC 529
  • Reverend Bakaluba Peter Mukasa v Nambooze Betty Bakireke (Election Petition Appeal No. 4 of 2009)
  • Pharmaceutical Society of Uganda v Attorney General (HCMC No. 260 of 2019)
  • Knafa Peter Kisawuzi v DFCU Bank Ltd (Civil Appeal No. 54 of 2016)
  • Housing Finance Bank Ltd v Silk Events Bank Ltd and Another (Civil Appeal No. 0500 of 2021)
  • Akankuasa Damian v Uganda (Constitutional Petition No. 5 of 2011)
  • Baku Raphael Obudra v Attorney General (Constitutional Petition No. 1 of 2003)
  • Anita Kavuma v Attorney General and Another (Constitutional Petition No. 42 of 2010)
  • Sserunkubo and 10 Others v The National Resistance Movement (NRM) (Constitutional Petition No. 9 of 2019)
  • Uganda Law Society v Kampala Capital City Authority & Another (Miscellaneous Cause No. 243 of 2017)
  • Mixnam Properties Ltd v Chertsey U.D.C [1964] 1 QB 274
  • Kabandize & 20 Others v Kampala Capital City Authority (Civil Appeal No. 28 of 2011)
  • S v Ntuli 1996 (1) SA 1207 (CC)
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.