Wakilii

Investment Masters Ltd v Ambrose Kagangure (HCT-00-CC-CS 312 of 2005)

High Court · [2007] UGCOMMC 46 · 2007 Preliminary Objection Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Preliminary objection on limitation raised at scheduling conference in civil suit for recovery of loan
Decision
Matter to proceed to trial on the merits

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that a preliminary objection on limitation under the Money Lenders Act cannot be determined without evidence where the pleadings do not establish whether the plaintiff was a registered money lender at the time the loan was advanced, and where the plaintiff alleges the loan was secured by mortgage over immovable property which would bring it within the exemption under s.21(1)(c) of the Act. The objection was overruled and the matter ordered to proceed to trial.

Outcome

Matter to proceed to trial on the merits

Facts

The plaintiff sued the defendant for recovery of UGX 25,000,000 being the outstanding amount on a loan advanced on 13 February 2003, repayable within one month. The suit was filed on 12 April 2005, more than two years after the alleged default date of 13 March 2003. The plaintiff pleaded that it was a duly licensed money lender. At the scheduling conference, the defendant raised a preliminary objection that the suit was time-barred under s.19(1) of the Money Lenders Act which requires proceedings to be commenced within 12 months from the date the cause of action accrued. The plaintiff responded that its status as a licensed money lender at the time of filing suit did not prove it was a registered money lender in 2003 when the loan was advanced. The plaintiff further asserted that the loan was secured by land comprised in Block 216 Plot 1565 Buye Ntinda, while the defendant claimed the transaction was an agency transaction for one month.

Issues

  1. Whether the plaintiff's claim is barred by the limitation period under s.19(1) of the Money Lenders Act where the suit was filed more than 12 months after the alleged default.
  2. Whether the court can determine a preliminary point of law on limitation without hearing evidence where the pleadings raise disputed questions of fact.
  3. Whether the plaintiff was a registered money lender within the meaning of the Money Lenders Act at the time the loan was advanced.
  4. Whether the transaction falls within the exemption under s.21(1)(c) of the Money Lenders Act where the loan was allegedly secured by mortgage over immovable property.

Orders

  • Preliminary objection on limitation overruled.
  • All issues raised to be determined on evidence.
  • Costs to abide the outcome of the suit.

Rules and key headnotes

Civil Procedure — Preliminary Objections — Determination without Evidence — Whether Point of Law Can Be Decided Where Facts Are in Dispute
A preliminary point of law should only be determined without calling witnesses where it can be decided fairly and squarely on facts agreed or not in issue on the pleadings, and not where its determination depends on facts that require proof through evidence.
Statutory Interpretation — Money Lenders Act — Definition of Money Lender — Who Constitutes a Money Lender
Not every person who lends money is a money lender within the meaning of the Money Lenders Act; a person who carries on a money lending business is generally one who is ready and willing to lend to all and sundry, provided they are eligible from the lender's point of view.
Banking & Finance — Money Lending — Exemptions from Money Lenders Act — Loans Secured by Mortgage over Immovable Property
Under s.21(1)(c) of the Money Lenders Act, the Act does not apply to any money lending transaction where the security for repayment is effected by execution of a legal or equitable mortgage upon immovable property or a charge upon immovable property, and this exemption applies whether the transaction is effected by a money lender or not.
Civil Procedure — Pleadings — Preliminary Objection Not Pleaded — Opportunity for Rebuttal
Where a preliminary objection on limitation is raised at a scheduling conference but was not pleaded in the written statement of defence, the opposing party is denied the opportunity to plead rebuttal averments, and the court should not determine the objection where the determination requires evidence that could have been addressed in the pleadings.
Civil Procedure — Constitutional Principles — Substantive Justice Over Technicalities
Article 126(2)(e) of the Constitution enjoins the court to administer substantive justice without undue regard to technicalities, and this principle supports allowing disputed issues to be determined on evidence rather than on preliminary objection where facts are not agreed.

Legislation cited (5)

Cases cited (2)

  • N.A.S Airport Services Ltd v A.G. of Kenya [1959] EA 53
  • Litchfield v Dreyfus [1906] 1 KB 584

Full judgment

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

Investment Masters Ltd v Ambrose Kagangure (HCT-00-CC-CS 312 of 2005) [2007] UGCommC 46 (14 May 2007)
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.