Wakilii

Finance Trust Bank Limited v Tibamwenda [2025] UGCOMMC 21

High Court · 2025 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside temporary injunction order, treated by the court as an appeal from the Assistant Registrar's decision
Decision
Application to set aside temporary injunction dismissed; earlier injunction order of Assistant Registrar upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court upheld the Assistant Registrar's decision granting a temporary injunction without requiring a further 30% deposit under the Mortgage Regulations. Where a mortgagor has already paid the mandatory 30% deposit in respect of an earlier abated suit concerning the same mortgage, loan, property, and parties, requiring a further 30% payment in a fresh suit would amount to paying 60% of the outstanding amount, which is contrary to law. The application was properly treated as an appeal from the Registrar's decision under Order 50 rule 8 of the Civil Procedure Rules. All grounds of appeal were dismissed.

Outcome

Application to set aside temporary injunction dismissed; earlier injunction order of Assistant Registrar upheld

Facts

The Respondent borrowed UGX 300,000,000 from Finance Trust Bank secured by a mortgage over land in Wakiso district. Upon default, the bank initiated foreclosure proceedings. The Respondent filed Civil Suit No. 254 of 2022 and obtained a temporary injunction in Misc. Application No. 381 of 2022, conditional upon paying 30% of the outstanding liability, which she paid. That suit abated when she failed to extract summons for directions within 28 days. The Respondent then filed a fresh suit (Civil Suit No. 761 of 2024) and obtained an unconditional temporary injunction in Misc. Application No. 1172 of 2024. The Assistant Registrar granted the injunction without requiring a further 30% deposit, reasoning that the payment made in the abated suit remained valid. The bank challenged this decision, contending that a fresh 30% deposit was required under Regulation 13(1) of the Mortgage Regulations.

Issues

  1. Whether the application was neither signed nor sealed by a Judicial Officer, thus defective.
  2. Whether the Applicant's action of filing an application to set aside the order granting a temporary injunction is procedurally improper.
  3. Whether the application is an abuse of Court process as it was a disguised appeal.
  4. Whether the Learned Registrar erred when she granted a temporary injunction without ordering payment of a security deposit of 30% of the forced sale value or outstanding amount as required by Regulation 13(1) of the Mortgage Regulations.
  5. Whether the 30% deposit paid under the abated Civil Suit No. 254 of 2022 sufficed as security for the injunction in Civil Suit No. 761 of 2024.
  6. Whether the Learned Registrar erred when she found that there was a prima facie case despite the Applicant's legal right of recovery and admission of default by the Respondent.
  7. Whether the Learned Registrar erred when she found that the Respondent would suffer irreparable loss where the value of the suit land is ascertainable.
  8. Whether the Learned Registrar erred when she found that Miscellaneous Application No. 1172 of 2024 did not amount to abuse of Court process.

Orders

  • Application dismissed.
  • The ruling of Her Worship Christa Namutebi in Misc. Application No. 1172 of 2024 delivered on 12th July, 2024 is hereby upheld.
  • Costs of this application shall abide by the result of the main suit.

Rules and key headnotes

Appeals — Procedure for Challenging Registrar's Orders — Order 50 rule 8
The proper procedure for challenging a decision of a Registrar is by way of appeal under Order 50 rule 8 of the Civil Procedure Rules. Where an applicant styles an application as a motion to set aside but the substance is an appeal from the Registrar's order and the application is brought under Section 79 of the Civil Procedure Act with grounds of appeal stated, the court will treat it as an appeal and determine it on the merits in the interests of substantive justice.
Mortgage Enforcement — Regulation 13(1) Deposit Requirement — Effect of Abatement
Where a mortgagor has complied with a conditional temporary injunction by paying the mandatory 30% deposit under Regulation 13(1) of the Mortgage Regulations in respect of a suit that subsequently abates, and then files a fresh suit arising from the same mortgage transaction, loan facility, mortgaged property and parties, ordering a further 30% payment would amount to paying 60% of the outstanding amount, which is an affront to the law. The payment made under the abated suit remains valid and satisfies the statutory requirement for the fresh suit.
Mortgage Regulations — Purpose of Regulation 13(1) — 'Pay Now, Argue Later' Principle
Regulation 13(1) of the Mortgage Regulations is an enactment of the principle 'pay now, argue later'. It is designed to restrict the ability of the mortgagor to use litigation or the courts to vexatiously delay the realisation of money due to the mortgagee. It reduces the number of frivolous objections to sales by a mortgagee and guarantees that the mortgagee will not be unnecessarily prejudiced by delay in payments inevitably occasioned by litigation. The rationale, object and purpose of the regulation are fulfilled once the mortgagor makes the required 30% payment.
Abatement — Right to File Fresh Suit — Order XIA rule 1(7)
Where a suit abates for failure to take out summons for directions within 28 days, the plaintiff has a right to file a fresh suit as provided under Order XIA rule 1 subrule (7) of the Civil Procedure Rules as amended, subject to the law of limitation. Filing a fresh suit after abatement does not amount to abuse of court process since the remedy is provided for by law.
Temporary Injunctions — Prima Facie Case — Serious Questions for Determination
Issues relating to whether interest rates and penalties charged by a mortgagee are unconscionable or unlawful, whether the mortgagee is in breach of its statutory duty, and whether provisions relating to default, valuation and intended sale are being properly followed constitute serious questions requiring determination by the court and establish a prima facie case for granting a temporary injunction.
Temporary Injunctions — Irreparable Damage — Owner-Occupied Mortgaged Property
Where a mortgagor is in physical possession, enjoyment and ownership of mortgaged land on which she and her family reside, disposal of the property would displace the mortgagor and constitutes irreparable damage for purposes of granting a temporary injunction, notwithstanding that the value of the land has been ascertained. Irreparable damage means injury that cannot be adequately atoned for in damages, not injury that cannot be physically repaired.

Legislation cited (16)

Cases cited (12)

  • Mayengo Moses v Kiwanuka Edison (HCMA No. 3602 of 2023)
  • Dison Okumu & 7 Others v Uganda Electricity Transmission Co. Ltd & 6 Others (SCCA No. 18 of 2020)
  • Maji Real Estates (U) Limited & Another v Aulogo Cooperative Savings & Credit Society Limited (HCMA No. 28 of 2017)
  • Fr. Narsensio Begumisa & 3 Others v Eric Tibebaga (SCCA No. 17 of 2002)
  • Pandya v R [1957] EA 336
  • National Insurance Corporation v Mugenyi and Company Advocates [1987] HCB 28
  • Abdul Latif Kamulegeya v Blaise Twagirayesu (HCMA No. 318 of 2024)
  • Nakato Margaret v Housing Finance Bank Limited and Another (HCCA No. 687 of 2021)
  • Kingston Enterprises Limited and three others v Standard Chartered Bank (U) Limited (HCCA No. 0446 of 2021)
  • Giella v Cussman Brown and Co. [1973] EA 358
  • Kiyimba Kaggwa v Katende [1985] HCB 43
  • Attorney General & Another v James Mark Kamoga & Another (SCCA No. 8 of 2004)

Full judgment

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

Finance Trust Bank Limited v Tibamwenda 2025 UGCommC 21 (14 February 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.