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Bunjo v Bank of Africa Uganda Limited & 3 Others (Constitutional Petition 23 of 2018)

Constitutional Court · [2024] UGCC 19 · 2024 Petition Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137(3) challenging the constitutionality of subsidiary legislation (Regulation 13 of the Mortgage Regulations 2012)
Decision
Petition dismissed with no order as to costs; Regulation 13 of the Mortgage Regulations 2012 held constitutional

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Holding

The Constitutional Court dismissed a petition challenging Regulation 13 of the Mortgage Regulations 2012, which requires a 30% security deposit before a court stops or adjourns the sale of mortgaged property. The court held that 'any other law' in Article 137(3) includes subsidiary legislation, so the petition was justiciable. On the merits it found the deposit arises at the stoppage stage, not as a precondition to accessing court, and therefore does not breach the right to a fair hearing (Article 44(c)), the right to property (Article 26), spousal rights (Article 31), or the High Court's unlimited jurisdiction (Article 139). Regulation 13(6) preserves judicial discretion to exempt a spouse from the deposit.

Facts

The petitioner, Bunjo Agnes, claimed to be the customary wife of the third respondent and a resident, with her children, of mortgaged properties at Buye in Kampala. After litigation arose over a loan secured on the property, she filed a High Court suit and an application for an interim injunction to stop the sale of the mortgaged property. The application was dismissed because she had not paid 30% of the loan value as required by Regulation 13 of the Mortgage Regulations 2012. She then petitioned the Constitutional Court for a declaration that Regulation 13(1) — which requires a mortgagor, spouse, agent or any other interested party to deposit 30% of the forced sale value or outstanding amount when a court adjourns or stops a sale by public auction — is unconstitutional. She argued it fettered access to court and the right to a fair hearing, infringed the property rights of non-consenting spouses, and ousted the High Court's jurisdiction. The first and fourth respondents opposed the petition; the second and third respondents filed no answers.

Issues

  1. Whether the Petition discloses any question for constitutional interpretation.
  2. Whether Regulation 13 of the Mortgage Regulations S.I. No. 2 of 2012 is inconsistent with and contravenes Articles 44(c), 26(1), 31(1) and 139(1) of the Constitution.
  3. Whether the Petitioner is entitled to the remedies sought.

Orders

  • The Petition is dismissed.
  • No order as to costs.

Key headnotes

Constitutional Law — Jurisdiction — Article 137 — Justiciability of subsidiary legislation
The phrase 'an Act of Parliament or any other law' in Article 137(3)(a) of the Constitution is wide enough to encompass subsidiary legislation, so the Constitutional Court has jurisdiction to determine the constitutionality of a statutory instrument.
Constitutional Law — Petitions — Disclosure of a question for constitutional interpretation
A petition under Article 137(3) discloses a question for constitutional interpretation where it describes the act or omission complained of, identifies the constitutional provision allegedly contravened, and seeks a declaration to that effect.
Land & Property — Mortgages — Regulation 13 deposit — Right to a fair hearing
The requirement under Regulation 13 of the Mortgage Regulations to pay a 30% security deposit does not contravene the right to a fair hearing under Articles 28 and 44(c) of the Constitution, because the deposit falls due at the stage of stopping or adjourning the sale and is not a precondition to accessing court.
Land & Property — Mortgages — Right to property — Article 26
Regulation 13 of the Mortgage Regulations does not contravene the right to property under Article 26, because a mortgagee acquires a protected proprietary interest in the mortgaged property and any loss to the mortgagor occurs only upon default of the mortgage obligations.
Family Law — Spousal rights — Article 31 — Mortgaged matrimonial property
Regulation 13 does not bind non-consenting spouses to loan agreements or contravene the equal rights of spouses under Article 31(1); the binding nature of such agreements is determined at trial, and Regulation 13(6) gives the court discretion to exempt a spouse from the 30% deposit.
Constitutional Law — Jurisdiction of the High Court — Article 139
Regulation 13 of the Mortgage Regulations does not oust the unlimited original jurisdiction of the High Court under Article 139(1); the High Court retains jurisdiction to hear and dispose of mortgage disputes on their merits, and the deposit merely regulates the interlocutory remedy of stopping or delaying a sale.

Legislation cited (14)

  • Constitution of Uganda 1995 art.137(3)
  • Constitution of Uganda 1995 art.44(c)
  • Constitution of Uganda 1995 art.26(1)
  • Constitution of Uganda 1995 art.31(1)
  • Constitution of Uganda 1995 art.139(1)
  • Constitution of Uganda 1995 art.28(1)
  • Constitution of Uganda 1995 art.21
  • Constitution of Uganda 1995 art.43
  • Constitution of Uganda 1995 art.50
  • Mortgage Regulations S.I. No. 2 of 2012 reg.13
  • Mortgage Act s.33
  • Mortgage Act s.1
  • Land Act s.39(1)
  • Constitutional Court (Petitions and References) Rules S.I. No. 91 of 2005

Cases cited (10)

  • Mbabali Jude v Edward Kiwanuka Sekandi (Constitutional Petition No. 28 of 2012)
  • Ismail Serugo v Kampala City Council & Another (Constitutional Appeal No. 2 of 1998)
  • Attorney General v Major General David Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Charles Kabagambe v Uganda Electricity Board (Constitutional Petition No. 2 of 1999)
  • Centre for Domestic Violence Prevention & Others v Attorney General (Constitutional Petition No. 13 of 2014)
  • Ndyanabo v Attorney General (2001) 2 EA 485
  • Uganda Projects Implementation and Management Centre v Uganda Revenue Authority (Civil Appeal No. 2 of 2009)
  • Makafo Margaret v Housing Finance Bank Limited (Civil Appeal No. 687 of 2021)
  • Ferdsult Engineering Services Limited and Another v Attorney General (Constitutional Petition No. 18 of 2021)
  • Housing Finance Bank Limited Vs. Silk Events Bank Limited and Anor
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.