Wakilii

Lubega Wasswa and Another v Housing Finance Company (U) Limited (Now known as Housing Finance Bank Limited) ( (Civil Suit No. 152 of 2019)

High Court · [2021] UGCOMMC 34 · 2021 First Plaintiff Suit Dismissed; Second Plaintiff Judgment Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Consolidated civil suit from two separate High Court suits (Civil Suit No. 418 of 2010 from Land Division and Civil Suit No. 400 of 2012) transferred to Commercial Court Division
Decision
First plaintiff's suit dismissed. Second plaintiff granted vacant possession with eviction order against first plaintiff and awarded UGX 60,000,000 in general damages plus interest and costs against the defendant bank.

Observed later treatment

Cited — treatment unverified cited in 1 (treatment unverified) Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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.

No adverse treatment recorded Cited 1 time with no adverse treatment recorded; not yet tested on the merits. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

Held that the sale of the mortgaged property by the defendant bank to the second plaintiff by private treaty was lawful under Mortgage Act Cap 229 s.10 and the mortgage deed terms, as the first plaintiff had consented to private treaty sale, repeatedly defaulted on the loan despite notices, and the deposit made three days before completion of sale did not constitute waiver of the bank's right to foreclose. The first plaintiff lost his equitable right of redemption. The second plaintiff was entitled to vacant possession of the property.

Outcome

First plaintiff's suit dismissed. Second plaintiff granted vacant possession with eviction order against first plaintiff and awarded UGX 60,000,000 in general damages plus interest and costs against the defendant bank.

Facts

The first plaintiff obtained two loans totalling UGX 25,000,000 from the defendant bank in 2005-2006, secured by mortgage over property at Block 210 Plot 1353 Kyadondo. He defaulted repeatedly between 2007-2010 despite statutory notices. The defendant advertised the property for sale by public auction or private treaty in September 2010 with sale date of 8 October 2010. The second plaintiff made an offer to purchase for UGX 73,000,000 in November 2010, which was accepted. On 3 December 2010, the first plaintiff deposited UGX 4,500,000 toward his arrears. On 6 December 2010, the second plaintiff paid 10% deposit. On 21 December 2010, the sale was completed by private treaty to the second plaintiff who paid the full purchase price, received the certificate of title and signed transfer forms. The first plaintiff then sought to block the transfer by lodging a caveat. The defendant recovered the amounts due and deposited the balance of UGX 44,053,088.52 in the first plaintiff's account. The second plaintiff has been denied vacant possession for over ten years.

Issues

  1. Whether the sale of property comprised in Block 210 Plot 1353 Kyadondo by the Defendant to the 2nd Plaintiff was lawful.
  2. Whether the 2nd Plaintiff is entitled to vacant possession of the property comprised in Block 210 Plot 1353 Kyadondo.
  3. What remedies are available to the parties?

Orders

  • The suit by the first plaintiff against the defendant is dismissed with costs to the defendant.
  • An order for delivery of vacant possession of the property comprised in Block 210 Plot 1353 Kyadondo is granted in favour of the second plaintiff.
  • An eviction order is granted against the first plaintiff.
  • The second plaintiff is awarded general damages of UGX 60,000,000.
  • Interest on general damages is awarded at 6% per annum from the date of judgment until payment in full.
  • The second plaintiff is awarded costs of this suit.
  • Interest on costs is awarded at 3% per annum from the date of filing the suit until payment in full.

Rules and key headnotes

Mortgages — Right of Redemption — Loss of Equitable Right
A mortgagor who repeatedly defaults on loan obligations despite receiving multiple statutory notices over several years and who makes only a partial deposit shortly before completion of sale to a third party purchaser loses the equitable right to redeem the mortgaged property.
Mortgages — Power of Sale — Private Treaty Sale
Where a mortgage deed expressly grants the mortgagee power to sell the mortgaged property upon such terms as it thinks fit in the event of default, and the mortgagor has given express written consent to sale by private treaty, the mortgagee may lawfully exercise the power of sale by private treaty without further consent when default occurs, in accordance with Mortgage Act Cap 229 s.10.
Mortgages — Mortgagee's Right to Foreclose — Waiver
A mortgagee's acceptance of a partial deposit from a defaulting mortgagor after the property has been advertised for sale and after a third party purchaser has made an accepted offer does not constitute waiver of the mortgagee's right to foreclose and complete the sale where substantial arrears remain unpaid.
Mortgages — Default — Single Instalment
A mortgagee has the right to sell mortgaged property upon default by the mortgagor on any single instalment, provided the mortgage deed so provides and proper statutory notices have been issued.
Land Sales — Vacant Possession — Purchaser's Entitlement
Where a mortgagee sells mortgaged property by private treaty on condition that it is free from encumbrances and the purchaser pays the full purchase price, the mortgagee has a duty to deliver vacant possession to the purchaser, and the purchaser is entitled to an eviction order against the former mortgagor who remains in possession.
General Damages — Assessment — Denial of Possession
A purchaser of property who has been denied vacant possession by the seller for over ten years despite having paid the full purchase price and obtained title documents is entitled to general damages assessed with reference to the economic inconvenience suffered and the nature and extent of injury, taking into account the purpose for which the property was purchased.

Legislation cited (5)

Cases cited (11)

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.

Full judgment

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

Lubega Wasswa and Another v Housing Finance Company (U) Limited (Now known as Housing Finance Bank Limited) ( (Civil Suit No. 152 of 2019) [2021] UGCommC 34 (10 August 2021)
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.