Wakilii

Housing Finance Bank v Kiganda Jalia (Miscellaneous Cause No. 12 of 2025)

High Court · [2025] UGHC 516 · 2025 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for vacant possession brought under Order 52 Rule 1 and 3 CPR, Section 98 of the Civil Procedure Act, and Section 33 of the Judicature Act following alleged mortgage default
Decision
Application dismissed at this stage pending cross-examination of deponents to resolve disputed factual issues

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the applicant bank failed to prove entitlement to vacant possession. The extent of the respondent's liability was contentious, with conflicting figures in the bank statement requiring explanation. The bank did not provide clear proof of service of the statutory notice of default and notice of sale as required under Sections 18 and 25 of the Mortgage Act. Court declined to grant vacant possession and ordered cross-examination of deponents to resolve disputed facts.

Outcome

Application dismissed at this stage pending cross-examination of deponents to resolve disputed factual issues

Facts

The respondent obtained a loan facility of UGX 180,000,000 from the applicant bank on 23 March 2018, secured by a legal mortgage over land at Busiro Block 322 Plot 175, Kapeka-Buloba, Wakiso District. The mortgage was registered on 4 April 2018. On 31 March 2021, the respondent requested a reduction of the outstanding facility following her exit from NSSF, and the facility was reduced to UGX 99,046,815 by memorandum of variation dated 5 May 2021. The applicant alleged that the respondent defaulted on repayment and the loan was written off on 31 May 2024 at UGX 102,621,807.24. The applicant claimed to have served a notice of default dated 31 May 2023 and notice of sale dated 18 October 2023, and advertised the property on 27 December 2023. The respondent denied receiving any notices and claimed she had paid UGX 350,000,000 to the applicant. The bank's statement showed conflicting closing balance figures.

Issues

  1. Whether the Applicant is entitled to an order of vacant possession of the mortgaged property comprised in Busiro Block 322 Plot 175 at Kapeka - Buloba in Wakiso District
  2. What remedies are available to the parties

Orders

  • Application for vacant possession not granted at this stage.
  • Parties directed to appear before court on 1st September 2025 at 3:00 PM for purposes of cross-examination of the respective deponents on their affidavits.
  • Costs of the application incurred thus far are costs in the cause.

Rules and key headnotes

Mortgage Foreclosure — Statutory Requirements — Service of Notice
Under Sections 18 and 25 of the Mortgage Act, a mortgagee seeking to exercise the power of sale must prove not only the issuance but actual service of the notice of default on the mortgagor, failing which the exercise of the power of sale becomes legally questionable.
Affidavit Evidence — Capacity to Swear — Principal Officer of Corporation
Under Order 29 Rule 1 of the Civil Procedure Rules, a litigation and recovery officer of a bank qualifies as a principal officer with ostensible authority to swear an affidavit on matters within his knowledge by virtue of his position, without need for special written authorization attached to the affidavit.
Affidavit Evidence — Material Falsehoods — Proof Required
Where a respondent alleges that an affidavit is tainted with material falsehoods, such allegation can only be determined by cross-examination of the deponent under Order 19 Rule 2 of the Civil Procedure Rules, and cannot be conclusively determined in the absence of such cross-examination.
Mortgage Law — Vacant Possession — Proof of Default and Compliance
A mortgagee seeking an order for vacant possession must establish both the mortgagor's default and full compliance with the procedural requirements of the Mortgage Act, including proof of service of the statutory notices. Where the amount of default is contentious and notice requirements are not satisfied, the remedy of vacant possession cannot be justly or lawfully granted.
Summary Applications — Disputed Facts — Need for Cross-Examination
Where there are disputed factual issues arising from affidavit evidence which cannot be adequately resolved without subjecting the deponents to cross-examination, the suit is not appropriate for disposal in a summary manner, and the court should direct cross-examination in the interest of justice.

Legislation cited (23)

Cases cited (15)

  • Nakiryowa Majorie Kiddu & Anor. Vs. Maurie S. Serugo Kiddu & Anor. Civil Suit No. 587 of 2015
  • Black Market Records Versus Malinga Sulaiman Aka (Ugeboy Coins) And 3 Others, High Court Commercial Division MISC APPL NO. 2788 OF 2023
  • Najjuma Jesca and Others Vs Moses Joloba and Another Misc. Appln No. 770 of 2015
  • Kalgana vs Dabo Boubou [1986] HCB 59
  • Ssali Samuel vs Gladys K. Rwamwamba, HCMA No. 514 of 2014
  • Friecca Pharmacy Ltd vs Anthony Natif HC M.A No. 498 of 2019
  • Rutuku Francis & Ors vs Eliphas Ndamagye CACA No.lll of 2017
  • Eric Tibebaga vs Fr. Narsensio Bemugisa & Others, Civil Application No. lE of 2002
  • DMK Capital versus Tezitta Fred Mukobe and Others, Miscellaneous Cause No: 0O54 of 2022
  • Bankone Limited -vs - Simbamanyo Estates Limited HCMA No. 645 of 2020
  • The Co-operative Bank Limited v. Kasiko John [1983] HCB 72
  • Simbamanyo Estates Limited Vs Equity Bank Uganda Limited & 2 Others M.A 414 of 2022
  • Express Newspapers plc Vs News (UK) ltd [1990] 1 WLR 1320
  • Barclays Bank of Uganda Vs Musimami & anor OS No. 6 of 2011
  • Sebuliba Busuulwa Vs Cooperative Bank Ltd [1982] HCB 129

Full judgment

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

Housing Finance Bank v Kiganda Jalia (Miscellaneous Cause No. 12 of 2025) [2025] UGHC 516 (14 July 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.