Wakilii

Post Bank v Hashakimana (Originating Summons 42 of 2022)

High Court · [2023] UGHC 78 · 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 of mortgaged property to Plaintiff for handover to purchaser

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that where a mortgagee has complied with the statutory notice requirements under Section 19 of the Mortgage Act before exercising the remedy of sale under Section 20(e), and the mortgagor has defaulted and failed to contest the proceedings, the mortgagee is entitled to an order for vacant possession to enable handover to the purchaser. Costs follow the event and are awarded to the successful party.

Outcome

Defendant ordered to deliver vacant possession of mortgaged property to Plaintiff for handover to purchaser

Facts

On 29 August 2019, Post Bank advanced UGX 50,000,000 to Hashakimana Charles, secured by a legal mortgage over 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 requiring payment of UGX 48,655,967. The Defendant acknowledged receipt and promised payment by 20 December 2020 but failed to pay. After the statutory period lapsed, the Plaintiff issued notices of sale and advertised the property in the Daily Monitor on 28 June 2021. The property was sold through Pedaro Auctioneers International Ltd to Uwimana Francis for UGX 55,100,000. The Defendant refused to vacate, preventing handover 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 properties and if so whether the Plaintiff/mortgagee is entitled to evict the Defendant and his agents from the mortgaged properties and handover vacant possession thereof to the purchaser for value.
  2. Whether the Plaintiff/mortgagee should be granted costs of the suit.

Orders

  • Order 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 this suit awarded to the Plaintiff.

Rules and key headnotes

Mortgage Law — Mortgagee's Remedy of Sale — Statutory Notice Requirements
Before exercising the remedy of sale under Section 20(e) of the Mortgage Act, a mortgagee must first comply with the notice requirements under Section 19 of the Act, including service of a notice of default on the mortgagor.
Mortgage Law — Vacant Possession — Entitlement After Valid Sale
Where a mortgagee has validly exercised the power of sale following compliance with statutory notice requirements and the mortgaged property has been sold, the mortgagee is entitled to an order for vacant possession to enable handover to the purchaser.
Pleadings — Deemed Admissions — Effect of Failure to Deny
Under Order 8 Rule 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.
Costs — Discretion of Court — General Rule
Section 27 of the Civil Procedure Act confers upon a judge the discretion to determine by whom and to what extent costs are to be paid. As a general rule, the successful party in contested proceedings is 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 78 (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.