Haruna v Attorney General & Another (Constitutional Petition 18 of 2020)

Observed later treatment

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The petitioner challenged regulation 13 of the Mortgage Regulations 2012, which requires a mortgagor to deposit 30% (or 50% for redemption) of the forced sale value or outstanding loan before a court adjourns or stops a sale, as inconsistent with the rights to a fair hearing, equality and property and as ultra vires the Mortgage Act. The Constitutional Court held that the identical constitutional questions had already been interpreted and adjudicated by the same court in Ferdsult Engineering Services v Attorney General & ABSA Bank Ltd. A constitutional interpretation binds beyond the original parties, so the questions were res judicata and could not be heard again. The petition raised no new question for interpretation and was dismissed.

Outcome

Petition dismissed as res judicata; no new question for constitutional interpretation.

Facts

The petitioner was a customer of the second respondent bank and obtained credit facilities for constructing commercial buildings on his land, securing one facility by depositing his land titles. He alleged the bank breached the contract, failed to disburse agreed sums and unlawfully debited his accounts, leading to litigation that was consolidated in the High Court. After obtaining a temporary injunction to avert sale of the secured property, the bank invoked regulation 13 of the Mortgage Regulations 2012, which conditions the adjournment or stoppage of a sale on payment of a 30% (or 50% for redemption) security deposit of the forced sale value or outstanding loan amount. The petitioner brought this constitutional petition contending that regulation 13 erodes the presumption of innocence, curtails access to justice, denies a fair hearing, offends equality and property rights, and is ultra vires the Mortgage Act. The respondents argued the petition was commercial in substance, an abuse of process, and that the same constitutional questions had already been decided in an earlier petition.

Issues

1. Whether regulation 13(1) of the Mortgage Regulations 2012 is inconsistent with and in contravention of Articles 28(1), 21(1) and (2), 43 and 44(c) of the Constitution.
2. Whether regulation 13(1), (4) and (5) of the Mortgage Regulations 2012 is inconsistent with and in contravention of Article 26 of the Constitution.
3. Whether regulation 13(1), (4) and (5) of the Mortgage Regulations 2012 is inconsistent with and in contravention of Articles 79, 126, 128 and 150 of the Constitution.
4. Whether the constitutional questions raised were res judicata having previously been determined by the Constitutional Court.
5. What remedies are available to the parties.

Orders

• The petition is dismissed.
• Each party shall bear its own costs.

Rules and key headnotes

Legislation cited (16)

• Constitution of Uganda 1995 art.137(1)(3)
• Constitution of Uganda 1995 art.21
• Constitution of Uganda 1995 art.26
• Constitution of Uganda 1995 art.28(1)
• Constitution of Uganda 1995 art.43
• Constitution of Uganda 1995 art.44(c)
• Constitution of Uganda 1995 art.79
• Constitution of Uganda 1995 art.126
• Constitution of Uganda 1995 art.128
• Constitution of Uganda 1995 art.150
• Mortgage Regulations No. 2 of 2012 reg.13
• Mortgage Act No. 8 of 2009 s.20
• Mortgage Act No. 8 of 2009 s.33
• Mortgage Act No. 8 of 2009 s.41
• Contracts Act 2010
• Constitutional Court (Petition and Reference) Rules 2006 r.3

Cases cited (9)

• Ferdsult Engineering Services & Mugisha Ferdinand v Attorney General & ABSA Bank Ltd Constitutional Petition No. 18 of 20
• Nakato Margaret v Housing Finance Bank Ltd & Anor (HCCA No. 0687 of 2021)
• The Queen v Big Drugmark Ltd (Others intervening) 1996 LRC (Const.) 982
• Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1998)
• Fuelex (U) Limited v Uganda Revenue Authority (Constitutional Petition No. 3 of 2009)
• Law & Advocacy for Women in Uganda v Attorney General (Constitutional Petitions No. 13 of 2006 & 06 of 2006)
• Attorney General v Uganda Law Society (Constitutional Appeal No. 1 of 2006)
• Uganda National Roads Authority v Irumba & Another (Constitutional Appeal No. 2 of 2014)
• Uganda v Godfrey Oneg Obel (Constitutional Petition No. 24 of 2011)

Cases citing this judgment (1)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

• Orient Bank Limited v Sentogo (Miscellaneous Application No. 1112 of 2019)

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