Tororo Steel Works Ltd v. Betty Akikoth

In The High Court of Uganda at Kampala

Civil Court Division

HCT-00-CV-CS-0001-2008

Before: Justice Lameck N. Mukasa

28^th January 2008

Land Transactions – Mortgages – Foreclosure - Whether the plaintiff is entitled to foreclose the defendant’s rights to land comprised in LRV 3178 folio 4, Plot 65, Osukuru Road - Whether the plaintiff is entitled to tell the said mortgaged property by private or public auction to recover all the sum due to it and costs or expenses related thereto.

Civil procedure – Exparte proceedings.

Civil procedure – Affidavit – Uncontroverted evidence.

On or about 17^th October 2006 the defendant approached the plaintiff company for the provision of iron sheets, other goods and materials on revolving credit terms. The plaintiff did supply considerable goods to the defendant. The customer statement, annexture B, shows an outstanding balance of Shs33,917,550/= as of 5^th February 2007. As security for the credit arrangement the defendant deposited her Certificate of Title for the land comprised in LRV 3178 folio 4 Plot, Osukuru Road, Tororo vide a memorandum of deposit, annexture “C”. The plaintiff has since lodged a caveat on the said land, registered as Inst. No. 379070 of 5^th April 2007. The defendant further made out two cheques, drawn payable to the plaintiff. One dated 2^nd February 2007 is in the sum of shs40,639,159/= and the other dated 12 March 2007 is in the sum of Shs 5,000,000/=. Both cheques were when presented for payment returned unpaid. Despite several reminders the defendant has not paid the outstanding amounts to date.

Held:

1. Facts stated on oath that have neither been denied nor rebutted are presumed to be admitted.

2. Plaintiff proved its claim against the defendant in the sum of Ugshs33,917,550/=

3. The defendant foreclosed of the right to redeem the mortgaged property comprised in LRV 3178 Folio 4 Plot 65 Osukuru Road, Tororo.

4. The plaintiff is entitled to sell the said land by private treaty or public auction to recover the monies due and the costs and expenses related thereto.

5. The plaintiff is awarded costs of this suit.

Judgement in favour of the plaintiff.

Cases referred to:

Samwiri Masa Vs Rose Achieng (1979) HCB 29.

Legislation referred to:

Order 37 rules 1 and 4 of the Civil Procedure Rules

Section 8 of the Mortgage Act Cap 229.

JUDGMENT:

Lameck Mukasa, J: This suit was brought by way of Originating Summons under order 37 rules 1 and 4 of the Civil Procedure Rules and Section 8 of the Mortgage Act. The plaintiff M/s Tororo Steel Works Ltd seeks determination of the following questions:-

1. Whether the plaintiff is entitled to foreclose the defendant’s rights to land comprised in LRV 3178 folio 4, Plot 65, Osukuru Road.

2. Whether the plaintiff is entitled to tell the said mortgaged property by private or public auction to recover all the sum due to it and costs or expenses related thereto.

An affidavit sworn by Oketh Venja, a Court process server, the defendant, Betty Akikoth, was on 23^rd January 2008, in the presence of her Counsel Mr. Oboth Okwalinga served with the Originating Summons for hearing today, 28^th January 2004. Receipt of the Originating Summons was acknowledged by Mr. Oboth Okwalinga for the defendant. At the hearing the defendant and her Counsel were absent and hearing proceeded exparte.

The plaintiff was represented by Mr. Noah Mwesigwa. He chose to rely on the evidence as deponed to in the affidavit in support by Mr. Byrand Ssebuliba the plaintiffs Corporate Counsel and Secretary. The plaintiff’s evidence as can be gathered from the said affidavit and the annextures thereto, is that on or about 17^th October 2006 the defendant approached the plaintiff company for the provision of iron sheets, other goods and materials on revolving credit terms. The plaintiff did supply considerable goods to the defendant. The customer statement, annexture B, shows an outstanding balance of Shs33,917,550/= as of 5^th February 2007.

As security for the credit arrangement the defendant deposited her Certificate of Title for the land comprised in LRV 3178 folio 4 Plot, Osukuru Road, Tororo vide a memorandum of deposit, annexture “C”. The plaintiff has since lodged a caveat on the said land, registered as Inst. No. 379070 of 5^th April 2007. The defendant further made out two cheques, drawn payable to the plaintiff. One dated 2^nd February 2007 is in the sum of shs40,639,159/= and the other dated 12 March 2007 is in the sum of Shs 5,000,000/=. Both cheques were when presented for payment returned unpaid. Despite several reminders the defendant has not paid the outstanding amounts to date.

The above facts stated on oath have neither been denied nor rebutted. On the authority of Samwiri Masa Vs Rose Achieng (1979) HCB 29. such facts are presumed to be admitted.

In the premises I find that the plaintiff has proved its claim against the defendant in the sum of Ugshs33,917,550/= The defendant having failed to pay the above sum I make the following orders:

1. The defendant is hereby foreclosed of the right to redeem the mortgaged property comprised in LRV 3178 Folio 4 Plot 65 Osukuru Road, Tororo.

2. The plaintiff is entitled to sell the said land by private treaty or public auction to recover the monies due and the costs and expenses related thereto.

3. The plaintiff is awarded costs of this suit.

I so order.

Hon. Mr. Justice Lameck N. Mukasa

Judge