Wakilii

Mutanda c Finance Trust Bank Limited and 2 Others (Miscellaneous Application 940 of 2020)

High Court · [2023] UGCOMMC 50 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to strike out Originating Summons for violating the lis pendens rule, arising from underlying dispute over mortgaged property sale
Decision
Originating Summons struck out for violating lis pendens rule; applicant awarded costs

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court struck out Originating Summons No. 6 of 2018 for violating the lis pendens rule under section 6 of the Civil Procedure Act. The court held that where a suit raising the same issues between the same parties is already pending, a subsequent suit constitutes an abuse of court process and must be dismissed. The respondents' failure to appear or respond meant their application was treated as uncontested.

Outcome

Originating Summons struck out for violating lis pendens rule; applicant awarded costs

Facts

The applicant obtained a loan of UGX 50,000,000 from the first respondent bank, secured by property in Kyadondo Block 208 Plot 4226. The loan accumulated to UGX 73,873,012 and the bank sold the property through the second respondent to the third respondent. The applicant filed Civil Suit No. 396 of 2017 in the Land Division (later transferred to Commercial Division as Civil Suit No. 901 of 2020) challenging the sale as fraudulent and illegal. While that suit was pending, the respondents filed Originating Summons No. 6 of 2018 seeking possession of the mortgaged property. The respondents also filed Civil Suit No. 957 of 2018. The applicant applied to strike out the Originating Summons on grounds it violated the lis pendens rule. The respondents did not appear or file any response despite being served and notified of court directions.

Issues

  1. Whether Originating Summons No. 006 of 2018 offends the lis pendens rule.
  2. What remedies are available to the parties.

Orders

  • Originating Summons No. 0006 of 2018 is struck out.
  • Costs of the application awarded to the applicant.

Rules and key headnotes

Civil Procedure — Lis Pendens — Elements of the Rule
For a plea of lis pendens under section 6 of the Civil Procedure Act to succeed, the party must show that the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties or parties under whom they claim, and that the earlier suit is pending in a court having jurisdiction to grant the relief claimed.
Civil Procedure — Lis Pendens — Abuse of Process
The filing of multiple suits on the same subject matter between the same parties is not only an abuse of court process but potentially exposes judicial officers to the danger of arriving at different and conflicting decisions in cases with the same facts, creating uncertainty and inconsistency in court decisions.
Civil Procedure — Uncontested Applications — Effect of Non-Appearance
When facts are sworn to in an affidavit and are not denied or rebutted by the opposite party who has been duly served and notified, the presumption is that such facts are accepted as the truth and the application should be granted.

Legislation cited (8)

Cases cited (6)

  • Tindyebwa Stephen v Alpha International Investments Ltd (Miscellaneous Application No. 789 of 2005)
  • Springs International Hotel v Hotel Diplomate (Civil Suit No. 227 of 2011)
  • Uganda Land Commission v James Kamoga and Another (Supreme Court Civil Appeal No. 8 of 2004)
  • Samwiri Massa vs Rose Achen, HCB 1978 at page 297
  • Mucunguzi Myers v Sarah Kulata Basangwa (Miscellaneous Application No. 1329 of 2014)
  • Springs International Limited v Hotel Diplomate Ltd and Bonney M Katatumba (High Court Civil Suit No. 227 of 2011)

Full judgment

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

Mutanda c Finance Trust Bank Limited and 2 Others (Miscellaneous Application 940 of 2020) [2023] UGCommC 50 (25 August 2023)
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.