Tumwebaze v Centenary Rural Development Bank (miscellaneous cause . 100 of 2023) [2024] UGHC 1228 (1 April 2024)

# THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA

## **LAND DIVISION**

# MISC. CAUSE NO. 100 OF 2023

### TUMWEBAZE MOSES:::::::::::::::::::::::::::::::::::

#### VERSES

# CENTENARY RURAL DEVELOPMENT BANK::::::::::::::::::::::::::::::::::::

#### HON. LADY JUSTICE NABAKOOZA FLAVIA. K **BEFORE:**

#### **RULING**

- 1. This application was brought by a notice of motion under **Regulation 13 of the** Mortgage Regulations, Section 98 of the Civil Procedure Act and Order 52 Rules 1 and 3 of the Civil Procedure Rules for the Orders that: - a. The Sale of Property Comprised in Busiro Block 375 Plot 591 and 592 Land at Katatembwa, Wakiso District and Kibanja at Ruhendwa LC Kyakashashara Subcounty, Kiruhura by the Respondent be adjourned or stopped. - b. Costs of the Application be provided for. - 2. The grounds of the application are contained in the notice of motion and supported by an affidavit in support deposed to by the Applicant (Tumwebaze Moses). The grounds are, briefly; that the Applicant's family homes, both in Mbarara and Kampala, were pledged as security on 28/08/2020 for a loan facility of 400,000,000/- for 5 years. The facility has been recalled prematurely for UGX 309,571,238/- and the Applicant seeks to redeem his homes by making a security deposit of 50% of UGX 309,571,238/-; and that this is a proper case where this court can exercise its unlimited jurisdiction to grant the orders sought. - 3. The Application is further supported by the following evidence including a copy of a demand notice from Benjo General Auctioneers and Court Bailiffs dated 14/12/2022; and photographs of houses on Bank sale. - 4. On 25/03/2024, the Applicant, through M/s Byemaro & Co. Advocates, filed a notice of withdraw of the application on the Electronic Court Case Management System (ECCMIS hereinafter) which was served on the Respondent on 26/03/2024 at 9:02 am as per the affidavit of service deposed to by Mr. Kojjo Noah.


- 5. On2610312024Mr. RonaldSekiddetheRespondent'sChiefManagerLegal Services filed an affidavit in reply wherein he deposed that the Applicant is indebted to the Respondent Bank to a tune of U9x.394,387,573 and continues to be in breach of a loan agreement. That the Respondent has since filed a suit against the Applicant and his guarantors in the High Court of Uganda at Mukono vide C,S No. B4l2023 and the Applicant would have sought redress in that court. That the Applicant has not demonstrated sufficient grounds to justify a stoppage by making payments ever since the property was advertised or demonstrate willingness to pay the whole sum should the court grant the orders sought. That the application has been made in bad faith, intended to frustrate the Respondent's effort to recover the outstanding loan amounts and interest thereon. - 6. Representation; the Applicant was represented by Counsel Masinde Smith from M/s Byemaro & Co. Advocates while the Respondent was represented by Counsel Agaba Conrad from M/s S&L Advocates.

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- 7. When the application came up for hearing on 310412024, Counsel Masinde informed court that the matter was withdrawn on 2510312024 and served on the Respondent on 2610312024. That the Respondent had not filed a reply but filed the same on 2610312024 after effecting seryice on them. Counsel prayed that the application should be withdrawn with no order as to costs. - B. In reply, Counsel Agaba admitted to the filing of a notice of withdraw on 2510312024. However, that they had long received instructions to defend the matter. That after filing a reply on 26/03/2024, it was brought to their attention that the matter had been withdrawn. That the Respondent had already filed the filing fees, and that the Applicant has to prove that service of notice of withdrawal was done before the filing of the affidavit in reply with concrete admissible evidence and not statements from the bar - 9. In rejoinder, Counsel reiterated that the withdraw was made on 2510312024 at 4:30 pm and service made on the Respondenton2610312024. That the reply was filed when the matter had already been withdrawn. He prayed that each party bears its own costs. Subsequently, Counsel Agaba sought leave to file an affidavit to prove the time when the notice of withdraw was served on the Bank. This leave was accordingly granted with a directive that the Applicant would file a reply to the same.

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10. At the time of writing this ruling, the Respondent's said affidavit was not on record.

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- 11. The only issue for determination is Whether Misc. Application No. 100 of 2O23 should be withdrawn with cosE. - l2. Order 25 rule 1 of the Civil Procedure Rules relates to withdrawal of a suit by <sup>a</sup> plaintiff or defendant and it provides that:

The plaintiff may at any time before the delivery of the defendant's defence, or after the receipt of that defence before taking any other proceeding in the suit (except any application in chambers) by notice in writing wholly discontinue his or her suit aqainst all or any of the defendants or withdraw anv part or parts of his or her alleged cause of complaint. and thereupon he or she shall pav the defendant's costs of the suit. or if the suit is not whollv discontinued the costs occasioned bv the matter so withdrawn. Upon the flling of the notice of discontinuance the costs shall be taxed, but the discontinuance or withdrawal, as the case may be, shall not be a defence to any subsequent action.

- l3. Where a withdrawal is done after the delivery of the defense, then the plaintiff should pay costs of the withdrawal to the defendant. My learned brother Vincent Wagona J In Kaswara Hassan Ali Vs Fort Portal Municipal Council Misc. Application No. 105 Of 2019 (Arising from Cs 007 Of 2018) noted that it is not automatic that whenever a withdrawal is made, then the defendant is entitled to costs. - o 14. In this case, the record shows that a letter of withdrawal was filed on ECCIMIS on 2510312024 at 4:30 pm and a hard copy was served on the Respondent on 2610312024 per the affidavit of Mr. Kojjo Noah at 9:02 am. - 15. The affidavit in reply was filed on 2610312024 at 9:58 am. From the record of ECCIMS it is clear that by the time the Applicant filed a letter of withdraw on 2510312024 at 4:30, the Respondent's affidavit in reply was not yet on record. - 16, Any document uploaded on ECCIIVIIS is considered effective service of that document to any interested party in that matter and the time any activity is done on the ECCIMIS is recorded.

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17. Therefore, the Applicant cannot be condemned to costs for an Application withdrawn before the opposite party responded to it with an affidavit in reply. This application is withdrawn accordingly with no orders to costs let each party shall bear its own costs.

Signed, dated and delivered at Kampala this....................................

Nabakooza Flavia, K **Judge**