Bitature loses court bid to block auctioning of his properties
Patrick Bitature
What you need to know:
- Justice Mubiru in his ruling on whether Vantage, a foreign company had no capacity to sue Simba Properties, took a swipe at his fellow judge for not having informed his earlier ruling based on evidence
The Commercial Division of the High Court, has thrown out an application in which Simba Properties Investment Co. Ltd and Simba Telecom Ltd, both owned by businessman Patrick Bitature, had sought to stop the advertisement and auctioning of his four prime properties in the ongoing loan saga with Vantage Mezzanine Fund, a South African entity.
In his ruling delivered on June 15, 2022, Justice Stephen Mubiru, argued that it was unfortunate that Simba Properties sued Counsel Robert Kirunda, Counsel Noah Shamah Wasige of Kirunda and Wasige Advocates and Bailiff Festus Katerega of Quick Way Auctioneers and Court Bailiff in their individual capacity, yet they were representing a known entity (Vantage) when they advertised their properties for auctioning in the newspapers.
Also sued was Commissioner Land Commission.
The properties that were advertised on May 18, 2022 in various newspapers; include; Elizabeth apartments in Kololo, Protea Hotel (Skyz’s Hotel) in Naguru, Moyo Close apartments and Kololo gardens in Kampala.
The intended advertisement was to cause the sale of the above mentioned properties owned by businessman Bitature, in a bid to recover USD32,064,075 (about Shs117b) that Vantage is demanding as a being an overdue debt following a loan deal gone bad.
“On the basis of all the foregoing considerations, I found that this application and the underlying suit, were entirely misconceived on account of the fact that they were instituted against agents of a known principal and on ground that the matters placed in issue in the suit are already the subject of a subsisting arbitral process,” ruled Justice Mubiru.
“In the result, I found that a prima facie case had not been established. There were no serious questions of the law and fact to be tried by this court to justify the grant of a temporary injunction. The application was thus dismissed with costs to the respondents and the underlying suit was struck out with costs to the defendants.” the judge further ruled.
With the ruling of the court, it means that Vantage can go ahead and advertise and sale the aforementioned properties and recover its outstanding loan against the businessman Bitature.
The background to this ruling according to court documents, is that the advertisement for the aforementioned prime properties, followed a history of litigation between Simba Properties and Vantage that begun in December, 2014 when the former borrowed money from the latter.
Simba Properties secured the loan using properties registered in its names.
A number of law suit were filed after loan deal went bad.
Court documents show that Simba Properties in their case that was dismissed yesterday, had sought for a temporary injunction, stopping Counsel Robert Kirunda, Wasige and bailiff Katerega from selling off their properties in a bid to recover the loan until the final disposal of the pending courts cases.
They went on to argue that their suit had a high likelihood of succeeding considering that purported mortgagee (Vantage) was non-existent and yet by the above mentioned lawyers and bailiff adverting the said properties, have not only occasioned severe damage to their names and business reputation but have also caused or continue to cause irreparable damage to them.
“The applicants (Simba Properties) stand to suffer irreparable injury in the event that the respondents are not restrained from that conduct, yet the balance of convenience is in their favour.” Simba Properties had unsuccessfully, argued.
The lawyers and bailiff had in their response, argued that the application against them was misconceived since they were agents acting on instructions of a known and disclosed principal (Vantage) and should not have been sued in their individual capacity.
They further argued that Simba Properties misread the High Court ruling of Justice Musa Ssekaana, who declared a lack of capacity by Vantage to sue but never declared that the same entity as being nonexistent.
“One of the directors of the applicants, has since issued a public statement acknowledging the debt and therefore, advertising the applicants’ properties for sell on account of default in repayment, is incapable of embarrassing and irredeemably damaging the business reputation of the applicants,” the lawyers stated in their reply.
The bailiff had also in his defense, told court of how he was dully instructed to advertise Mr Bitature’s properties for sale, having defaulted on a loan advanced to them by Vantage.
But Mr Fred Muwema, one of the lawyers representing Simba Properties, had, unsuccessfully, argued that on the advert for the sale of the aforementioned properties, the lawyers and bailiff had not included Vantage as the principal behind it hence suing them in their individual capacities.
Justice Mubiru hits out at fellow judge Ssekaana
But Justice Mubiru in his ruling on whether Vantage, a foreign company had no capacity to sue Simba Properties, took a swipe at his fellow judge for not having informed his earlier ruling based on evidence.
Justice Mubiru went on to hold that his brother Judge Ssekaana reached his decision by error and therefore, he was not bound by it.
“To determine whether or not a foreign business organization, be it a corporation or firm, is carrying on business in Uganda, the court must inquire into whether that entity has some direct or indirect presence in Uganda, accompanied by a degree of business activity that is sustained for a period of time,” observed Justice Mubiru.
“I have carefully perused the ruling by the Civil Division of the High Court, … but have not found reference to any factual indicia that ordinarily supports such a determination to the extent that my brother judge did not have before him such facts as were necessary for determination and indeed not engaging in any analysis that before coming to the conclusion that Vantage had no capacity to sue for want of registration in Uganda. I find myself unable to follow his decision most especially considering the fact that it is not binding on me.
“The High Court is bound by a decision of the Supreme Court, the Court of Appeal and the Constitutional Court but not bound by another High Court decision. In any event, a decision which reached ….is one reached by manifest slip, error or glaring mistake, such that some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong and therefore cannot be avoided.” Held Justice Mubiru.
