THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLANEOUS APPLICATION NO 202 OF 2004
(ARISING FROM CASE NO HCT-00-CV-CS-156 OF 2004)
EVARISTO MUGABI …………………………………………… PLAINTIFF
HOUSING FINANCE CO. LTD. & ANOR ………………….. DEFENDANT
14th December, 2004
BEFORE: HON. MR. JUSTICE J.B.A. KATUTSI:
This is an application by way of notice of motion brought under the provisions of O.48 r.1 and O.37 r.1 (a) and (b) of the Civil Procedure Rules seeking orders to facilitate presentation of the suit property.
The application is supported by an affidavit sworn by the applicant the relevant paragraphs of which run as follows:
6. That my family and I have nowhere to stay and our constitutional right to shelter was violated by the respondents and their agent the auctioneer.
10. That I have now filed H.C.C.S NO.156 of 2004 against respondents to set aside the said sale and the same is now pending in this court”.
There is an affidavit in reply sworn by the second respondent the relevant paragraphs of which are:
Order.37 r 7 (a) under which the application is taken runs as follows:
The question for discussion here is whether upon the facts as stated the applicant has as against the respondents a right to a preservation order. It is not sufficient for the applicant to merely say he wants a preservation order and then as a matter of practically of right, is entitled to the order of preservation. If the court sees, however, that there is a fair ground for issuing the order, then it appears to me the court ought to grant it, but not otherwise. After all the grant under O.37 r.7 (a) is discretionary.
From the affidavit in reply it is made clear that the second respondent is the registered proprietor of the suit premises. This claim is not rebutted. The second respondent swears that: “I purchased the suit property for value pursuant to an express power of sale conferred on the first respondent as mortgagee and after being satisfied that the applicant had consented to the mode by which the property was sold to me”. (emphasis mine) This clear, hold statement is not controverted. I am aware that upon the application of this nature, the court is not to go into the claim and decide finally whether the applicant’s claim is well founded or not.
To this end the submission of Learned Counsel for respondents on the doctrine of approbation and reprobation appear to me to be premature at this stage. Suffice it to say that I see nothing in this application to compel me to exercise my discretionary powers under O.37 r.7 (a) and accordingly dismiss this application with costs.
Kamigisha A. for respondent.