Wakilii

Bisobye v Bisobye & Another (Miscellaneous Application 1295 of 2023)

High Court · [2024] UGCOMMC 25 · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of consent judgment entered in Civil Suit No. 69 of 2022
Decision
Application dismissed. Consent judgment upheld.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the 2nd respondent was not carrying on a moneylending business but was advancing friendly loans; therefore the loan agreements were not illegal under the Tier 4 Microfinance Institutions and Money Lenders Act. The consolidation agreement of 10 February 2021 discharged the applicant from further liability both as debtor and guarantor through accord and satisfaction; she was not required to be joined as a defendant in the suit for recovery. The mortgaging of matrimonial property did not vitiate the consent judgment because the applicant had given consent by statutory declaration and subsequent conduct, and properties of the judgment debtor are liable to attachment in execution regardless of spousal consent. Application dismissed.

Outcome

Application dismissed. Consent judgment upheld.

Facts

The applicant and 1st respondent are spouses who borrowed money from the 2nd respondent secured by various properties including their matrimonial home. The applicant consented to one loan agreement dated 13 December 2019. Multiple subsequent loan agreements were executed, most signed only by the 1st respondent. On 10 February 2021, the respondents executed a debt settlement agreement consolidating all loans to UGX 694,000,000, which the applicant did not sign. The 1st respondent defaulted and paid only UGX 160,000,000. The 2nd respondent obtained a consent judgment in Civil Suit No. 69 of 2022 against the 1st respondent alone. Execution proceedings led to the sale of two properties. The applicant sought review, alleging the 2nd respondent was an unlicensed moneylender, her signatures on some agreements were forged, she was not joined as a defendant despite being affected, and her spousal consent was required for mortgaging matrimonial property.

Issues

  1. Whether the consent judgment is vitiated by illegality in the loan agreements.
  2. Whether the applicant should have been joined as party to the suit and consent judgment.
  3. Whether the 1st respondent's mortgaging of the title deeds to the land comprised in Kyadondo, Block 204 Plot 289; Busiro Block 448, Plots 267 and 268; and Plot 2 Research Road, Lugonjo/Nakiwogo, Entebbe Municipality vitiates the consent judgment.

Orders

  • Application dismissed.
  • Costs of the application awarded to the 2nd respondent.

Rules and key headnotes

Civil Procedure — Review of Judgment — Grounds for Review — Error Apparent on Record
A review should not seek to challenge the merits of a decision but rather irregularities in the process leading to the decision. An error apparent on the face of the record must be self-evident and not require elaborate argument to establish.
Civil Procedure — Consent Judgment — Grounds for Setting Aside
A consent judgment becomes the judgment of court and is binding on parties. It can only be set aside for reasons that would enable court to set aside an agreement, such as fraud, mistake, misapprehension, ignorance of material facts, or contravention of court policy.
Commercial Law — Moneylending — Distinguishing Moneylending Business from Friendly Loans
A person who carries on a moneylending business is one who is ready and willing to lend to all and sundry, provided they are eligible from his point of view. Whether a person carries on the business of moneylending depends on the facts of each case. There must be repetition, regularity, system and continuity in the lending transactions. Temporary passive transactions and lending to a few friends do not normally constitute a moneylending business. A friendly loan is a financial agreement between associates, usually made between friends or family, often without interest or with very low interest.
Contract Law — Accord and Satisfaction — Effect on Original Contractual Obligation
Accord and satisfaction is a method of discharging a claim by settlement and performing a new agreement. An accord is an agreement made between contracting parties in which new performance will replace the original performance agreed upon; satisfaction is the carrying out of that accord. An accord and satisfaction discharges the original contractual obligation. The consideration for an accord is often the resolution of a disputed claim made in good faith.
Land & Property — Family Land — Definition under Land Act s.38A(4) — Requirements for Spousal Consent
Family land under section 38A(4) of The Land Act means land on which is situated the ordinary residence of a family, or land that serves both as family residence and from which the family derives sustenance, or land the family voluntarily agrees to treat as such, or land treated as family land according to the norms, culture, customs, traditions or religion of the family. Spousal consent is required before family land can be mortgaged. Ordinary residence means the place where a family resides with continuity and intends to make it their home for an indefinite period.
Land & Property — Spousal Consent — Form of Consent — Statutory Declaration as Alternative to Prescribed Form
While Form 37 of the Land Regulations 2001 is the prescribed form for spousal consent to transactions involving family land, a statutory declaration that meets the substantive requirements of section 39(2) of The Land Act and contains the essential elements of the prescribed form is valid. Where deviation from the prescribed form does not affect the substance or mislead, the instrument is not void.
Civil Procedure — Execution — Attachment of Matrimonial Property — Section 44 Civil Procedure Act
All saleable property belonging to the judgment debtor or over which he has disposing power which he may exercise for his own benefit is liable to attachment and sale in execution of a decree. Section 44 of The Civil Procedure Act does not exempt matrimonial homes or matrimonial property from attachment and sale in execution of decrees for recovery of money, nor does it require prior consent of the unregistered spouse for disposal by judicial sale.

Legislation cited (15)

Cases cited (27)

  • Kinyara Sugar Ltd v Hajji Kazimbiraine Mahmood and others (Miscellaneous Application No. 3 of 2020)
  • Nyamogo & Nyamogo Advocates v. Kago [2001] 2 EA 173
  • Brooke Bond Liebeg (T) Ltd v. Mallya [1975] E.A 266
  • Hirani v. Kassam [1952] EA 131
  • Attorney General and another v James Mark Kamoga and others (Civil Appeal No. 8 of 2004)
  • Babigumira John and Others v. Hoima Council [2001 - 2005] HCB 116
  • Pavement Civil Works Ltd v Andrew Kirungi (Miscellaneous Application No. 292 of 2002)
  • Patel v. Mirza [2017] AC 467
  • Litchfield v. Dreyfus [1906] 1 KB 584
  • Kirkwood v. Gadd [1910] AC 422
  • Kenny v. Conroy and another [1999] 1 WLR 1340
  • North Central Wagon Finance Co. Ltd v. Brailsford [l962] 1 All E.R. 502
  • Newton v. Pyke [l908] 25 TLR 127
  • Investment Masters Ltd v Ambrose Kagangure (Civil Suit No. 312 of 2005)
  • Solaglass Finance Co. (Pty) Ltd v. Commissioner for Inland Revenue [1991] 1 All SA 39 (A)
  • Ndyareeba Ronald v Joseph Arinaitwe (Miscellaneous Application No. 173 of 2019)
  • James Balintuma v Dr Handel Leslie (Civil Suit No. 193 of 2013)
  • Tan Aik Teck v. Tang Soon Chye [2007] 5 CLJ 441
  • Sureshraj Krishnan v. Pv Power Engineering Sdn Bhd and another [2023] 1 MLJ 632
  • British Russian Gazette and Trade Outlook Limited v. Associated Newspapers Limited [1933] 2 KB 616
  • Phenny Mwesigwa v Petro Uganda Limited (Civil Appeal No. 10 of 2019)
  • Namboowa Rashida v Bavekuno Mafumu Godfrey Kyeswa and another (Election Appeal No. 69 of 2016)
  • Emerson v. Bannerman, (1891) 19 S.C.R. 1
  • Najjuma Jesca and five others v Moses Joloba and another (Miscellaneous Application No. 770 of 2019)
  • Nimrod Kurwijila v Theresia Hassan Malongo (Civil Appeal No. 102 of 2018)
  • Heilbut, Symons & Co. v. Buckleton [1913] A.C. 30
  • Strongman (1945) Ltd. v. Sincock, [1955] 2 Q.B. 525

Full judgment

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Bisobye v Bisobye & Another (Miscellaneous Application 1295 of 2023) [2024] UGCommC 25 (2 January 2024)
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.