Wakilii

Diamond Trust Bank v Michael Jackson Kabushenga (Miscellaneous Cause No. 75 of 2025)

High Court · [2025] UGCOMMC 392 · 2025 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for eviction order and vacant possession of mortgaged property following private treaty sale
Decision
Application dismissed pending determination of substantive suit challenging the sale of the mortgaged property

Observed later treatment

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Holding

The court dismissed the bank's application for vacant possession of mortgaged property sold by private treaty. The respondent had filed a prior substantive suit (Civil Suit No. 747 of 2025) challenging the sale as fraudulent and illegal. Section 6 of the Civil Procedure Act bars proceedings where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties. The factual disputes regarding the sale, including allegations of fraud, coercion, and non-payment, required thorough investigation in the substantive suit and could not be resolved by affidavit evidence in the eviction application.

Outcome

Application dismissed pending determination of substantive suit challenging the sale of the mortgaged property

Facts

Diamond Trust Bank granted Michael Jackson Kabushenga a loan of UGX 800,000,000 secured by multiple properties including LRV 3822 Folio 4 Plot 5724 Luliya. Following default, the bank sold the mortgaged property by private treaty to Jassani Kareem for USD 500,000. The purchaser paid in full and the property was transferred into his name, but Kabushenga refused to hand over vacant possession. The bank filed this application on 18 July 2025 seeking eviction. Kabushenga opposed, alleging he was coerced to sign sale agreements under economic duress without independent legal advice, that the bank never accounted for proceeds from earlier property sales, and that the transfer to Kareem was fraudulent as he received no consideration. On 20 June 2025, Kabushenga had filed Civil Suit No. 747 of 2025 challenging the manner of sale and seeking declarations that the sale was fraudulent, illegal, null and void, together with an application for temporary injunction.

Issues

  1. Whether the Applicant is entitled to an order for vacant possession of the mortgaged property comprised in LRV 4810 Folio 3 Kyadondo Block 273 Plot 25562 land at Luliya?
  2. Whether the grant of this application shall render Civil Suit No. 747 of 2025 nugatory?
  3. Whether the affidavit in reply contains falsehoods warranting it to be struck out?
  4. Whether the affidavit in reply contains allegations of fraud that cannot be proved by affidavit evidence?

Orders

  • Application dismissed.
  • Costs of the application to abide by the outcome of Civil Suit No. 747 of 2025.

Rules and key headnotes

Civil Procedure — Preliminary Objections — Nature and Requirements
A preliminary objection is in the nature of a demurrer and raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.
Civil Procedure — Affidavit Evidence — Treatment of Falsehoods
Where an affidavit contains some falsehoods, a liberal approach may be adopted whereby false parts which are irrelevant to the matter at hand can be ignored and the rest of the averments considered. However, where the false averments form the material facts, such an affidavit cannot be relied on.
Civil Procedure — Fraud — Proof by Affidavit Evidence
Issues of fraud cannot be determined by affidavit evidence and require thorough investigation through oral evidence at trial.
Civil Procedure — Lis Pendens — Section 6 Civil Procedure Act
No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties where that suit is pending in the same or any other court having jurisdiction in Uganda to grant the relief claimed.
Civil Procedure — Lis Pendens — Application for Eviction Pending Substantive Challenge to Sale
Where a respondent has filed a prior substantive suit challenging the sale of mortgaged property as fraudulent and illegal, it is unjust to determine an application for eviction and vacant possession before the substantive suit, as the factual disputes regarding the validity of the sale must be thoroughly investigated and determined in the substantive proceedings.

Legislation cited (9)

Cases cited (4)

  • Uganda Telecom Limited v ZTE Corporation (Supreme Court Civil Appeal No. 03 of 2017)
  • Eric Tibebaga v Fr. Narsensio Begumisa & Others (Civil Application No. 18 of 2002)
  • Col. (Rtd) Besigye Kizza v Museveni Yoweri Kaguta & Another (Election Petition No. 1 of 2001)
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696

Full judgment

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

Diamond Trust Bank v Michael Jackson Kabushenga (Miscellaneous Cause No. 75 of 2025) [2025] UGCommC 392 (30 September 2025)
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.