Wakilii

Mpaire v Finance TrustBank Ltd (HCT-05-CV-MA 179 of 2021)

High Court · [2024] UGHC 779 · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by Chamber Summons seeking order to restrain sale of mortgaged property pending determination of appeal before Court of Appeal
Decision
Application dismissed; respondent may proceed with statutory sale of mortgaged property under Mortgage Act

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the applicant expressly stated he was not seeking a stay of execution but rather sought to stop the sale of mortgaged property, yet failed to base his application on the provisions of the Mortgage Act and Mortgage Regulations. The respondent as a registered financial institution has statutory authority to issue a notice under section 18 of the Mortgage Act and exercise power of sale under section 25(1). The High Court judgment ordering sale of the mortgaged property if the applicant failed to pay the outstanding loan remains in effect and has not been stayed. Application dismissed.

Outcome

Application dismissed; respondent may proceed with statutory sale of mortgaged property under Mortgage Act

Facts

On 2 August 2014, the applicant entered into a loan agreement with the respondent bank for UGX 150,000,000. The applicant defaulted on his loan obligations. On 12 September 2017, the applicant filed HCCS 73 of 2017 seeking declarations including a permanent injunction restraining the respondent from selling the mortgaged property. On 30 October 2020, Hon Justice Tadeo Asiimwe dismissed the suit and ordered that the respondent could proceed to sell the mortgaged property if the applicant failed to pay the outstanding loan amounts. On 28 December 2020, the applicant filed a memorandum of appeal to the Court of Appeal (Civil Appeal 367 of 2020). On 31 March 2021, the respondent issued a statutory notice to the applicant under section 19 of the Mortgage Act 2009. On 16 July 2021, the applicant filed this application seeking to restrain the respondent from selling the property pending determination of the appeal.

Issues

  1. Whether the application was for stay of execution of judgment or for stoppage of sale of mortgaged property.
  2. Whether the court should issue an order restraining the respondent from selling the applicant's mortgaged property pending the determination of the appeal before the Court of Appeal.

Orders

  • Application dismissed.

Rules and key headnotes

Civil Procedure — Stay of Execution — Appeals to Court of Appeal — No Specific Provision in Civil Procedure Rules
There is no specific provision in the Civil Procedure Rules regarding stay of execution of a decree where an appeal lies to the Court of Appeal from the High Court, and this is an area in which the court exercises its inherent powers.
Civil Procedure — Stay of Execution Pending Appeal — Conditions to be Satisfied
In an application for stay of execution pending appeal, a court ought to consider whether: (1) a notice of appeal has been filed and steps have been taken to prosecute the appeal; (2) the intended appeal raises triable issues with a strong likelihood of success; (3) applicants will suffer irreparable damage if their application is not granted; (4) the balance of convenience favours the grant of the application; and (5) the application was instituted without delay.
Banking & Finance — Mortgages — Power of Sale — Statutory Authority Under Mortgage Act
Where a mortgagor is in default of his or her obligations under a mortgage and remains in default at the expiry of the time provided for rectification of that default in the notice served under section 18(3) of the Mortgage Act Cap 239, a mortgagee may exercise his or her power to sell the mortgaged land under section 25(1) of the Mortgage Act.
Civil Procedure — Applications to Restrain Sale of Mortgaged Property — Proper Basis
An application seeking to stop the sale of mortgaged property should be based on the provisions of the Mortgage Act and Mortgage Regulations, not on general civil procedure provisions for stay of execution.

Legislation cited (9)

Cases cited (2)

  • Ejulu Martin v Itobu Margret (HCMA No. 160 of 2022)
  • Hon. Ssekikubo & 3 Others v Attorney General & 4 Others (Constitutional Application No. 06 of 2013)

Full judgment

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

Mpaire v Finance TrustBank Ltd (HCT-05-CV-MA 179 of 2021) [2024] UGHC 779 (28 August 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.