Court name
Commercial Court of Uganda
Judgment date
30 April 2014

Saano v Barclays Bank Ltd & 2 Ors (Miscellaneous Application-2012/155) [2014] UGCommC 44 (30 April 2014);

Cite this case
[2014] UGCommC 44

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(COMMERCIAL DIVISION)

 

MISC. APPLICATION NO 155 OF 2012

(ARISING FROM ORIGINATING SUMMONS NO. 6 OF 2011)

 

 

EFRANCE SAANO ………………………………………….. OBJECTOR

AND

BARCLAYS BANK OF UGANDA …………………………. APPLICANT

 

VERSUS

 

  1. JOSHUA WILBER MUSIMAMI
  2. MUJOWI INVESTMENTS (U) LTD ….………… RESPONDENTS

 

 

BEFORE: JUSTICE FLAVIA SENOGA ANGLIN

 

RULING

 

This application was brought under 0.22 rules 55 and 57 C.P.R. seeking orders declaring that the Applicant, Bank is not entitled to foreclose and sell the Objector’s matrimonial property comprised in LRV3547, Folio 2, Plot 4134 at Masajja.  That the intended sale by foreclosure of the suit property by the Applicant Bank be stopped and costs of the application provided for.

 

The application was supported by the affidavit of the Objector, which was relied upon at the hearing - Paragraphs 2 -12.

 

Counsel submitted that in applications of this nature, the Applicant is supposed to prove that she is in possession and occupation of the property.

 

It was then pointed out that the application arises out of a mortgage and that the Mortgage Act does not provide for procedure under which third parties may file applications of this nature and therefore the fall back to 0.22 rules 55 and 57 C.P.R.

 

Referring to the affidavit in reply, Paragraphs 5-9, where it is alleged that the suit is premature  and  an abuse of court process and the property is property of First Respondent, and he obtained spousal consent, Counsel stated the Applicant alleges fraud and there is need to settle the issue of ownership, otherwise C.S. 348/12 will be rendered nugatory.

 

And that, unless the application is granted, the Objector will be rendered homeless by the fraudulent acts of the First Respondent; who was only meant to keep the title safe.

 

Counsel further argued that the process of foreclosure is a form of unique execution which the judgment debtor is prohibited from challenging.

 

He relied upon the definition of foreclosure that is said to include, “shut out, to bar, to destroy an equity of redemption, and termination of all rights of mortgagor or his guarantee of the property covered by the mortgage.  And mortgage property sold in default of mortgagor in satisfaction of the mortgage deed” – Blacks Law Dictionary 6th Edition, Page 646.

 

Counsel asserted that, to argue that there is no decree to be stayed would imply that the Objector had to wait for equity of redemption to close.  But that, that would close out all parties and entitle bank to sell.

More so, considering that the First Respondent never filed an affidavit in reply to the suit, implying that the bank could proceed to get order to foreclose exparte.

 

It was then prayed that the application be allowed, the sale of the property stayed and declarations made against foreclosure with costs to the Objector.

 

In reply, Counsel for the bank opposed the application and to the background as given by Counsel for the Objector.  He referred to Paragraphs 5, 6, 7 and 9 of the affidavit in reply of Mulema dated 18.03, arguing that the creditor advanced a loan to the Second Respondent, and the property mortgaged belongs to the First Respondent.  When the Second Respondent defaulted in payment, the bank initiated foreclosure proceedings.  The proceedings were instituted by Originating summons 06/11.

However that, court issued summons and decided that the trial be conducted in the normal way to determine if the bank should foreclose.  The trial is still pending.

 

Counsel accordingly insisted that the current application is both premature and bad in law.

 

He submitted that, for an Objection to be instituted, it must satisfy the requirements of 0.22 rules 55, 56, 57 and 58 C.P.R upon which the current application is anchored.  The order deals with objections to attachment.

He insisted that there can only be objection if there has been attachment of property in execution of a decree.  But that there is neither decree nor attachment in respect of the suit property in this case. 

 

The case of Caltex Oil Uganda Ltd Vs. Petrol Uganda Ltd and Another Misc. Appl. 279/04 arising from Misc. Appl. 86/04 and C.S. 533/02, P.2; was relied upon for the definition of Execution under 0.22 C.P.R.  Execution was said to mean “the act of completing or carrying into effect of a judgment compelling the Defendant to do or pay what has been adjudged”.

 

 

Counsel explained that execution in its widest sense signifies the enforcement of or giving effect to a judgment or orders of courts of justice.

And that attachment is just one of the modes of execution.  There has to be a judgment sought to be enforced in the first place, against which an Objector under 0.22 r 55 C.P.R can be entertained.

 

 

Reiterating that originating summons 06/11 is still pending and no judgment has been given; Counsel asserted that this application is premature and does not satisfy the requirements of 0.22 r. 55 C.P.R and is therefore bad in law.

 

Also that the application is misconceived as it does not satisfy the requirements of 0.22 rules 56, 57 and 58 C.P.R.  That while the Objector is claiming interest in the property, the court cannot make an order releasing a non-existent attachment.

 

Further that a suit has already been filed under 0.22 rule 60 C.P.R and will resolve the issue as to whether the  Objector has interest in the property and what reliefs she is entitled to.  And filing the present application before court pronounces itself in that earlier suit is an abuse of court process.

 

Court was urged to find that the application has no merit and dismiss it with costs.  The case of Maria Odido Vs Tekie Ezra Misc. Appl. 319/11 from C.S 329/09 – was cited in support. In that case, Justice Madrama laid out the ingredients to be satisfied by an Objector.

 

In rejoinder, Counsel for the Objector reiterated earlier submissions adding that since the objector  as a third party has no remedy under the Mortgage Act, and considering that the debtor (1St Respondent) never filed any affidavit opposing the foreclosure proceedings; due diligence required the Objector to bring the current proceedings. Otherwise waiting for foreclosure to materialize would mean that Objector would have no right to challenge the proceedings.

 

Asserting that the application is only meant to halt process and not determine ownership, Counsel maintained that it should be allowed.

 

Having listened to the submissions of both Counsel, and perused the authorities relied upon; I find that this application must fail.

 

Under 0.22 rule 55 C.P.R, court is mandated to make investigations of claims to, and objections to attachment of property.

 

It is apparent from the above rule that, there must be property attached in execution of a decree before objection proceedings can be filed.

 

From the background given in this case, it is apparent that while foreclosure proceedings were initiated under Originating Summons 06/11;  the court issued summons and directed that the trial be conducted in the normal way to determine if the bank should foreclose.  The trial of the suit is still pending, and it appears that no further step has been taken since then.

 

Since the trial is still pending, there is no evidence of attachment or a decree in respect of the suit property.

It therefore follows that, as the disputed property has not yet been attached, the issue of releasing it from attachment cannot arise. – See C.A decision in Trans Africa Assurance Co. Ltd Vs. NSSF [1999] IEA 352 (SCU).

The Supreme Court of Uganda upheld the decision of the Court of Appeal, in that case.

 

The objection in the present case does not meet the requirements of 0.22 r. 55 C.P.R.  While the judgment debtor may never have filed any affidavit opposing the foreclosure proceedings, it is on record that the court directed the suit to proceed in the normal way. The Objector in this present case also filed C.S. 348/12 against both the judgment debtor and Barclays Bank; and the suit has not yet been disposed of.

 

It is also on record that there is a caveat placed on the title and which should in normal circumstances not be removed without notice to the Caveator/Objector in this case.   Which means that notice to show case would have to be issued before the property can be sold by the bank.

 

In the suit filed by the Objector, she can apply for injunction to stay any further dealings with disputed land until the suit has been disposed of.

 

I accordingly agree with Counsel for the Respondent that in the circumstances as enumerated above, this application is premature and cannot be sustained.

 

It is accordingly dismissed for those reasons but with orders that each party bears its own costs.

 

Objector is said to be in possession of the property and therefore remains in possession until otherwise directed by court.

 

 

Flavia Senoga Anglin

JUDGE

30.04.14