Wakilii

U.C.B V Mrs. Bushuyu (Administratrix of the estate of John Wilson Bushuyu) (Civil Suit No. 123 of 1994)

High Court · [1994] UGHC 2 · 1994 Judgment for Defendant AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit by originating summons seeking foreclosure and sale of mortgaged property following loan default
Decision
Suit dismissed for failure to register the equitable mortgage under the Registration of Titles Act

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

An equitable mortgage created by deposit of a certificate of title with intent to create security cannot be enforced unless registered under the Registration of Titles Act. Although the court found that the loan was secured by an equitable mortgage over the deceased's property created through deposit of the certificate of title with the bank's authority via power of attorney, the bank's failure to register the mortgage by entering a caveat under s.138 of the Registration of Titles Act rendered the mortgage unenforceable. The suit for foreclosure and sale was dismissed with costs to the defendant.

Outcome

Suit dismissed for failure to register the equitable mortgage under the Registration of Titles Act

Facts

Uganda Commercial Bank granted a loan to FREMI Agencies Ltd on 6 November 1988 secured by property on plots 28 and 28A Kabale Road belonging to John Wilson Bushuyu. The certificate of title was deposited with the bank under a power of attorney executed by Bushuyu appointing FREMI Agencies Ltd as his attorney to mortgage the property. The borrower defaulted on loan repayment. The certificate of title later went missing from the bank due to document confusion following branch amalgamation. The bank brought suit by originating summons against the administratrix of Bushuyu's estate seeking foreclosure and sale. The defendant denied knowledge of the loan, the company, and the deposit of the certificate of title, asserting that the duplicate certificate had always been in their residence.

Issues

  1. Whether the plaintiff, after default of loan repayment, is entitled to foreclosure and sale of the mortgaged property to realise the principal, interest and costs.
  2. Whether the loan was secured by a mortgage of the defendant's property with the consent, authority and power of attorney of the late John Wilson Bushuyu.
  3. Whether the failure to repay the loan is evidenced by the bank statement annexed to the plaintiff's affidavit.
  4. Whether an equitable mortgage created by deposit of certificate of title can be enforced without registration under the Registration of Titles Act.

Orders

  • Suit dismissed.
  • Plaintiff to pay costs of the suit to the defendant.

Rules and key headnotes

Equitable Mortgage — Creation by Deposit of Certificate of Title
An equitable mortgage of registered land may be created by deposit of the certificate of title by the registered proprietor with intent to create security, whether accompanied or not by a note or memorandum of deposit, pursuant to section 138 of the Registration of Titles Act.
Equitable Mortgage — Registration Requirement for Enforcement
To enforce an equitable mortgage in registered land, the mortgagee must register it either as a legal or equitable mortgage under the Registration of Titles Act by causing a caveat to be entered as provided by section 148 of that Act.
Mortgage — Unenforceability for Failure to Register
A bank which creates an equitable mortgage by deposit of certificate of title but fails to register that mortgage under the Registration of Titles Act cannot enforce its rights under the mortgage, including foreclosure and sale, notwithstanding that the mortgage was validly created and default occurred.
Mortgage Decree — Meaning of 'Register'
The word 'register' in section 18 of the Mortgage Decree 17/74 refers to registration of the mortgage itself under the Registration of Titles Act, not to registration of the land, as land which is partly situated outside Uganda cannot be registered under Ugandan law.

Legislation cited (6)

Cases cited (1)

  • D. Jakana v C. Senkandi (1988-90) HCB 167

Full judgment

↓ Download PDF

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

U.C.B V Mrs. Bushuyu (Administratrix of the estate of John Wilson Bushuyu) (Civil Suit No. 123 of 1994) [1994] UGHC 2 (19 October 1994)
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.