Wakilii

Absa Bank (U) Ltd v Kalyesubula Victor t a Kalvic Commodities Ltd (Originating Summons No. 12 of 2023)

High Court · [2023] UGCOMMC 308 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Originating summons by mortgagee seeking eviction of mortgagor from mortgaged property following alleged default on loan facility
Decision
Application for eviction of mortgagor dismissed due to insufficient evidence

Observed later treatment

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Holding

The High Court Commercial Division dismissed an originating summons by a mortgagee bank seeking eviction of the mortgagor from mortgaged property. The court held that despite the mortgagor's default and failure to file a reply, the bank failed to adduce sufficient evidence by not producing the mortgage instrument itself showing the agreed loan terms, principal sum, and interest. The certificate of title showing registration of the mortgage was insufficient. The court found the application and supporting affidavit lacking in material respects and declined to grant an eviction order given its serious consequences.

Outcome

Application for eviction of mortgagor dismissed due to insufficient evidence

Facts

On 20 February 2020, the plaintiff bank and defendant executed a mortgage over property in Busiro, Block 456, Plots 414 and 415, Bunkabira, for a loan facility of UGX 250,000,000. The defendant allegedly defaulted, repaying only UGX 91,000,000, leaving UGX 159,000,000 outstanding. On 6 February 2023, the bank issued a notice of default expiring 14 April 2023. The defendant did not file a reply to the originating summons or attend court, though service was effected on 26 October 2023. The bank sought an eviction order and costs. The bank relied on affidavit evidence from its Recovery Officer but did not attach the mortgage instrument or memorandum of understanding referenced in submissions.

Issues

  1. Whether the Plaintiff as the legal mortgagee is entitled to foreclose and sell the mortgaged property to recover the entire amount due to it in respect of the principal amounts, interest, costs and all other charges arising from the Defendant's loan?
  2. Whether the Plaintiff/Mortgagee is entitled to vacant possession of the property comprised in Busiro, Block 456, Plots 414 and 415 land at Bunkabira?
  3. What remedies are available to the parties?

Orders

  • Originating summons dismissed.
  • No order as to costs.

Rules and key headnotes

Banking & Finance — Mortgage Enforcement — Burden of Proof — Production of Mortgage Instrument
In originating summons proceedings for eviction of a mortgagor, a mortgagee bank must produce the mortgage instrument itself to prove the loan terms, principal sum, interest, and the mortgagor's agreement. A certificate of title showing registration of a mortgage is insufficient evidence to ground an eviction order.
Civil Procedure — Evidence — Evaluation Despite Undefended Suit — Court's Discretion
Where a defendant does not file a reply or attend court, the court retains discretion to evaluate the evidence adduced by the plaintiff in the interest of justice, notwithstanding Order 8 Rule 3 of the Civil Procedure Rules which deems undenied allegations admitted.
Land & Property — Eviction Orders — Serious Consequences — Standard of Proof
An order for eviction has serious consequences and cannot be issued lightly. A court must be satisfied that all relevant information and evidence has been placed before it before granting such an order.

Legislation cited (8)

Cases cited (1)

  • Global Trust Bank v Frank Mugisha (High Court Civil Suit No. 005 of 2012)

Full judgment

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

Absa Bank (U) Ltd v Kalyesubula Victor t a Kalvic Commodities Ltd (Originating Summons No. 12 of 2023) [2023] UGCommC 308 (30 November 2023)
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.