Wakilii

Post Bank v Hashakimana (Originating Summons 42 of 2022)

High Court · [2023] UGHC 77 · 2023 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Originating summons by mortgagee seeking vacant possession following mortgage sale
Decision
Defendant ordered to deliver vacant possession to plaintiff; plaintiff entitled to hand over property to purchaser

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that a mortgagee who complied with the statutory notice requirements under Mortgage Act s.19 and lawfully exercised the power of sale under s.20(e) is entitled to evict the defaulting mortgagor and obtain vacant possession to hand over to the purchaser. Where the defendant failed to file a defence or appear, all averments regarding liability were deemed admitted under Civil Procedure Rules O.8 r.3. Costs awarded to the successful plaintiff.

Outcome

Defendant ordered to deliver vacant possession to plaintiff; plaintiff entitled to hand over property to purchaser

Facts

On 29 August 2019 the plaintiff bank advanced UGX 50,000,000 to the defendant, secured by a legal mortgage on freehold land in Kisoro District. On 28 September 2020 the defendant obtained a further loan of UGX 16,000,000. The defendant defaulted on repayment despite rescheduling. On 9 December 2020 the plaintiff recalled the loan and served a notice of default. After the statutory period lapsed, the plaintiff issued notices of sale. The property was advertised in the Daily Monitor on 28 June 2021 and sold through Pedaro Auctioneers International Ltd to Uwimana Francis for UGX 55,100,000. The defendant refused to vacate the property, preventing the plaintiff from taking possession and handing it over to the purchaser. The defendant was properly served but did not file a defence or appear at the hearing.

Issues

  1. Whether the plaintiff/mortgagee is entitled to vacant possession of the mortgaged property and if so whether the plaintiff/mortgagee is entitled to evict the defendant and his agents from the mortgaged property and hand over vacant possession thereof to the purchaser for value.
  2. Whether the plaintiff/mortgagee should be granted costs of the suit.

Orders

  • An order is issued to the defendant to deliver vacant possession of the suit property comprised in Freehold Register Volume HQT1757 Folio 4 Block (Road) 37 Plot 34 at Shozi Cell, Gasiza Parish, Nyakabande Division Kisoro Municipality, Kisoro District to the plaintiff.
  • Costs of the suit awarded to the plaintiff.

Rules and key headnotes

Land & Property — Mortgages — Power of Sale — Entitlement to Vacant Possession
A mortgagee who has complied with the statutory notice requirements under s.19 of the Mortgage Act and lawfully exercised the power of sale under s.20(e) is entitled to evict the mortgagor and obtain vacant possession of the mortgaged property in order to hand it over to the purchaser.
Land & Property — Mortgages — Statutory Requirements — Notice of Default
Prior to exercising the remedy of sale under s.20(e) of the Mortgage Act, a mortgagee must first comply with the notice requirements under s.19 of the Act.
Civil Procedure — Pleadings — Failure to File Defence — Deemed Admissions
Under O.8 r.3 of the Civil Procedure Rules, every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated not to be admitted in the pleadings of the opposite party, shall be taken to be admitted except as against a person under disability.
Civil Procedure — Costs — Award to Successful Party
Despite the wide discretion conferred by s.27 of the Civil Procedure Act, as a general rule the successful party in contested proceedings is usually entitled to an award of costs.

Legislation cited (7)

Cases cited (2)

  • Habre International Co Ltd v Ibrahim Alarakia Kassam and Others (Supreme Court Civil Appeal No. 4 of 1999)
  • Candiru v Amandua and 2 Others (High Court Civil Suit No. 19 of 2014)

Full judgment

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

Post Bank v Hashakimana (Originating Summons 42 of 2022) [2023] UGHC 77 (28 February 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.