The Commercial Court has dismissed a sh38b property case against Equity Bank Uganda Limited, Meera Investment Limited and Luwaluwa Investment Limited.

Equity bank sold Simbamanyo House on Lumumba avenue to Meera, a company owned by Sudhir Ruparelia at $5m (sh18.5b) and Afrigue Suites Hotel on Mutungo Hill to Luwaluwa at $4.4m (sh15.6b), to recover its debt from Simbamanyo Estates Limited.

Justice Susan Abinyo dismissed the case on technicality, ruling that the affidavit sworn by Kamya’s counsel, Wilson Gad, is defective. She also rejected supplementary affidavit deponed by Njoroge Githingi as an advocate.

“I find that this appeal is incompetent and not proper before this court as a result of defective affidavits,” she ruled. She directed Kamya to pay costs of the case to the respondents.

An affidavit is a written statement confirmed by oath or affirmation, for use as evidence in court.

Justice Abinyo noted that Gad and Njoroge deposed affidavits as an advocate for Kamya on facts relating to the manner in which the suit abated in total disregard of the law.

She explained that an affidavit sworn by counsel in personal conduct of the substantive matter is fatally defective in law.

“The affidavit deponed by Gad on matters of substance in the appeal before this court as an advocate duly instructed by the client inevitably renders it defective,” she stressed.

This is the fourth time the case is being dismissed in the Commercial Court.

Background

On March 4, 2020, Simbamanyo businessman ran to Commercial Court after the bank threatened to sell his properties over sh38b debt.

He sued Equity Bank Uganda Limited, Equity Bank Limited and Bank one Limited, contending that the mortgages on his properties were illegal since the banks unlawfully debited his loan account with fabricated and unexplained amounts plus uncertain interest charges.

However, in September, 2020, deputy registrar Susan Kanyange granted an interim order temporarily stopping the sale, on condition Kamya deposits $3m (sh11b), which is 30% of the outstanding loan, before the case is heard.

Dissatisfied with part of the ruling, Simbamanyo appealed to Justice Boniface Wamala, seeking, among others, that the condition of payment of 30% deposit be set aside.

Subsequently, Wamala granted Kamya a 30-day ultimatum to pay sh11b, failure of which the bank would proceed to sell properties placed as securities.

The extension of the period was to prevent the property from being sold in a week as earlier directed by the deputy registrar.

After the properties were sold, Kamya sued Equity bank, Meera, Luwaluwa and the Commissioner Land Registration, contending that the sale and transfer of his properties was illegal and fraudulent.

However, deputy registrar, Lillian Bucyana, dismissed the case on grounds that Kamya did not follow essential steps under the law to cause the hearing of the case by not filing a reply to the respondent’s written submissions, following an application filed by lawyers representing Meera.

“The suit hereby abates in accordance with Order XIA Rule 1 (6) of the Civil Procedure Rules S.1 No. 71-1, as amended since the plaintiff (Kamya) did not take out summons for directions within the stipulated time,” she earlier ruled.

This prompted Kamya through his lawyers from Muwema and Company Advocates to appeal against the ruling before Justice Susan Abinyo, seeking to reinstate the sh38b property case.

Consequently, Counsel Wilson Gad swore an affidavit, stating that the order of abatement was done without according Kamya a hearing and in total disregard of the facts on the court file.

He contended that the registrar’s orders had extinguished all pending proceedings before the trial judge and has rendered any orders that would be granted nugatory, hence causing injustice to Simbamanyo, a businessman.