Wakilii

Fontana Auto Parts (U) Limited v I & M Bank (U) Limited (Miscellaneous Application 303 of 2024)

High Court · [2024] UGCOMMC 109 · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for temporary injunction restraining enforcement of mortgage and sale of mortgaged properties pending determination of underlying suit
Decision
Application for temporary injunction dismissed; applicant may proceed with underlying suit (H.C. Civil Suit No. 676 of 2023) but no protection granted against sale of mortgaged properties

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court dismissed the application for a temporary injunction restraining enforcement of mortgages and sale of mortgaged properties. The Court held that the applicant had not established a prima facie case because the bulk of its underlying claim was time-barred under The Limitation Act, and the application constituted an abuse of process as it sought to relitigate issues already determined in earlier proceedings involving the applicant's director. The suit was found to be prima facie frivolous and vexatious with claims manifestly unwarranted under existing law.

Outcome

Application for temporary injunction dismissed; applicant may proceed with underlying suit (H.C. Civil Suit No. 676 of 2023) but no protection granted against sale of mortgaged properties

Facts

Fontana Auto Parts (U) Limited, a motor vehicle spare parts company, had a banking relationship with I & M Bank (formerly Orient Bank) involving multiple loan facilities secured by third-party mortgages. After the company defaulted, the bank issued a notice of sale in January 2024 to sell mortgaged properties to recover US $2,884,117.32. The applicant's director, Ms. Nadia Manji, had earlier filed Civil Suit No. 393 of 2023 alleging her signature was forged on certain facility restructuring agreements and obtained a temporary injunction which lapsed in January 2024 after she failed to deposit the required 30% within 45 days. Three days after that application was dismissed on 16 February 2024, the applicant company filed this separate application on 19 February 2024 seeking a temporary injunction based on Civil Suit No. 676 of 2023, which challenged various loan transactions dating back to 2015 on grounds of breach of contract and fraud.

Issues

  1. Whether the applicant has established a prima facie case against the respondent for purposes of granting a temporary injunction.
  2. Whether the applicant will suffer irreparable harm if the temporary injunction is not granted.
  3. Whether the balance of convenience favours granting a temporary injunction restraining the sale of mortgaged properties.
  4. Whether the applicant is required to pay 30% of the forced sale value or outstanding amount as a condition for the grant of a temporary injunction under The Mortgage Regulations 2012.

Orders

  • Application dismissed.
  • Costs to the respondent.

Rules and key headnotes

Civil Procedure — Frivolous and Vexatious Suits — Elements
A frivolous claim is one that is intended to harass, delay or embarrass the adversary and lacks any arguable basis either in law or in fact, where either the factual contentions are clearly baseless (such as when allegations are the product of delusion or fantasy) or the claim is based on an indisputably meritless legal theory. A suit is vexatious if it is started with malice and without good cause, brought solely to harass or subdue an adversary.
Civil Procedure — Abuse of Process — Multiple Proceedings on Same Transaction
Abuse of process occurs where the Court's processes are misused to achieve something not properly available in the course of properly conducted proceedings. Unreasonably filing multiple suits arising out of the same transaction may be a manifestation of abuse of process. The rule against splitting causes of action prevents litigation of the same question in different suits and is designed to prevent a multiplicity of suits.
Contract Law — Limitation of Actions — Breach of Contract
Section 3(1)(a) of The Limitation Act provides for a general limitation period of six years from the date on which the cause of action in contract accrued. In claims founded on contract, time for limitation purposes runs from the date of breach. Breach of contract occurs where the complained conduct is a breach of duty arising out of the obligations undertaken by the contract.
Company Law — Piercing the Corporate Veil — Abuse of Corporate Form
The court may pierce the corporate veil under section 20 of The Companies Act 2012 where there is evidence showing the corporate structure was used purposely to avoid or conceal liability. Directors who represent the directing mind and will of a company are deemed to control what it does, and the state of mind of directors is the state of mind of the company. The corporate veil may be lifted where the corporate personality is used as a cloak or mask abusing the process of court.
Banking & Finance — Mortgage Enforcement — Temporary Injunctions and 30% Deposit Requirement
Under Regulation 13 of The Mortgage Regulations 2012, where a court grants an application to adjourn or stop a sale of mortgaged property, the mortgagor is mandatorily required to pay a security deposit of 30% of the forced sale value of the mortgaged property or the outstanding amount, whichever is higher. The requirement to make this deposit is triggered when the adjournment or stoppage is granted and is devised to stop frivolous and vexatious mortgagors from frustrating mortgagees seeking recovery of monies rightfully owed.
Civil Procedure — Temporary Injunctions — Elements for Grant
For a temporary injunction to be granted, the applicant must establish: (1) a prima facie case with a probability of success; (2) that irreparable injury would be suffered which cannot be adequately compensated by damages; and (3) that the balance of convenience favours granting the injunction. An applicant must show a strong probability that the feared conduct and resulting damage will occur, and that there is at least a reasonable chance of success at trial.

Legislation cited (18)

Cases cited (36)

  • E.A. Industries v Trufoods [1972] EA 420
  • Fellowes and Son v Fisher [1976] 1 QB 122
  • American Cyanamid Co v Ethicon Limited [1975] AC 396
  • Geilla v Cassman Brown Co Ltd [1973] EA 358
  • GAPCO Uganda Limited v Kaweesa and another (Miscellaneous Application No. 259 of 2013)
  • Godfrey Sekitoleko and four others v Seezi Peter Mutabazi and two others [2001-2005] HCB 80
  • Nsubuga and another v Mutawe [1974] EA 487
  • Liget (Liverpool) Ltd v Barclays Bank [1928] 1 KB 48
  • Alpha2 Business Company Limited v Diamond Trust Bank Limited and two others (Miscellaneous Civil Application No. 71 of 2016)
  • Ewing v Ireland and another [2013] IESC 44
  • Gould v Johnson (1702) 2 Salk 422
  • Midland Bank Trust Co Ltd v Hett, Stubbs and Kemp [1978] 3 All ER 571
  • Uganda Railways Corporation v Ekwaru DO and 5104 others (Civil Appeal No. 185 of 2007)
  • Murome Sayikwo v Kuko Yovan and another [1985] HCB 68
  • Re Mustapha Ramathan (1996) KALR 86
  • Hilton v Sutton Steam Laundry [1946] 1 KB 61
  • Krishna Lal Chawla v State of UP (2021 SCC Online SC 191)
  • Broxton v McClelland and Another [1995] EMLR 485
  • Springs International Hotel Ltd v Hotel Diplomate Ltd and another (Civil Suit No. 227 of 2011)
  • Lennard's Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705
  • HL Bolton (Engineering) Co Ltd v TJ Graham and Sons Ltd [1957] 1 QB 159
  • Merchandise Transport Ltd v British Transport Commission [1962] 2 QB 173
  • Trustor v Smallbone (No 2) [2001] 1 WLR 1177
  • DHN Food Distributors Ltd v Tower Hamlets London Borough Council [1976] 1 WLR 852
  • Antonio Gramsci Shipping Corp v Stepanovs [2011] 1 Lloyd's Rep 647
  • Janov v Morris [1981] 1 WLR 1389
  • Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd [1998] 1 WLR 1426
  • Securum Finance Ltd v Ashton [2001] Ch 291
  • City Council of Kampala v Donozio Musisi Sekyaya (Civil Application No. 3 of 2000)
  • Haji Edirisa Kasule and another v Housing Finance Bank Ltd and two others (Miscellaneous Application No. 667 of 2013)
  • Guaranty Trust Bank (U) Ltd v Ankole Riverline Hotel Ltd (Civil Appeal No. 28 of 2014)
  • Paunocks Enterprises Ltd and others v Stanbic Bank (U) Ltd (Miscellaneous Application No. 1113 of 2014)
  • Willis International Engineering and Contractors Ltd and another v DFCU Bank (Miscellaneous Application No. 1000 of 2015)
  • Miao Huaxian v Crane Bank Limited and another (Miscellaneous Application No. 935 of 2015)
  • Ganafa Peter Kisawuzi v DFCU Bank Ltd (Civil Application No. 64 of 2016)
  • Ferdsult Engineering Services Limited and another v The Attorney General and another (Constitutional Petition No. 18 of 2021)

Full judgment

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Fontana Auto Parts (U) Limited v I & M Bank (U) Limited (Miscellaneous Application 303 of 2024) [2024] UGCommC 109 (18 March 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.