Wakilii

Mugabi v Housing Finance Co. Ltd and Anor (Miscellaneous Application No 202 of 2004)

High Court · [2004] UGHC 36 · 2004 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for preservation order arising from main suit HCT-00-CV-CS-156 of 2004
Decision
Application dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Application for preservation order dismissed. Where property has been sold pursuant to mortgagee's power of sale and transferred to a purchaser for value who is now the registered proprietor, and where the applicant's affidavit does not rebut the purchaser's claim of having purchased with the applicant's consent to the sale mode, the court will not exercise its discretion under O.37 r.7(a) CPR to grant a preservation order.

Outcome

Application dismissed

Facts

The applicant was the registered owner of Mailo Land comprised in Kibuga Block 29 plot 110 until 30 October 2003 when it was transferred by the first respondent (Housing Finance Co. Ltd). The applicant claimed the transfer occurred under dubious circumstances. On 15 November 2003, the applicant and his family were evicted from the property by an auctioneer with about 20 people. The applicant alleged the first respondent sold the property to the second respondent for UGX 125 million when it had been insured for UGX 225 million replacement value in 1997, and that he owed UGX 96,477,228.34 under the mortgage. The applicant claimed the sale was unlawful, not advertised as required under the Mortgage Decree, and constituted deliberate underselling. The second respondent deposed that he purchased the property for value pursuant to an express power of sale conferred on the first respondent as mortgagee, and after being satisfied that the applicant had consented to the mode of sale. The second respondent was the registered proprietor and had conferred third party rights through tenancy agreements with four tenants in occupation.

Issues

  1. Whether the applicant is entitled to a preservation order for property now registered in the name of the second respondent who purchased it as mortgagee's sale.

Orders

  • Application dismissed with costs.

Rules and key headnotes

Civil Procedure — Preservation Orders — Discretionary Nature — Exercise of Court's Discretion under O.37 r.7(a)
A preservation order under O.37 r.7(a) of the Civil Procedure Rules is discretionary and will only be granted where the applicant shows fair grounds for the order; an applicant is not entitled to a preservation order as a matter of practical right merely by requesting it.
Land & Property — Mortgagee's Power of Sale — Preservation Orders — Registered Proprietor Status
Where property has been sold pursuant to a mortgagee's express power of sale and transferred to a purchaser for value who is now the registered proprietor, and the applicant has not rebutted the purchaser's claim of lawful purchase with consent, the court will decline to exercise its discretion to grant a preservation order.

Legislation cited (5)

  • Civil Procedure Rules O.48 r.1
  • Civil Procedure Rules O.37 r.1(a)
  • Civil Procedure Rules O.37 r.1(b)
  • Civil Procedure Rules O.37 r.7(a)
  • Mortgage Decree

Full judgment

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

Mugabi v Housing Finance Co. Ltd and Anor (Miscellaneous Application No 202 of 2004) [2004] UGHC 36 (14 December 2004)
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.