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BoU to Museveni: Nothing you can do to save Kamya, Simbamanyo House was auctioned after a very clear court process

Governor Emmanuel Tumusiime Mutebile (L) was ordered by President Museveni (R) to investigate the matter of Simbamanyo House (PHOTO/File).

Governor Emmanuel Tumusiime Mutebile (L) was ordered by President Museveni (R) to investigate the matter of Simbamanyo House (PHOTO/File).

KAMPALA — An internal report of the Bank of Uganda has shed light on the events tracing the auction and sale of Simbamanyo House and Afrique Suites — both properties of city businessman Peter Kamya — by the Equity Bank and flagged the transaction fair and done under the law.

President Museveni on September 3, directed the Governor Emmanuel Tumusiime Mutebile to investigate circumstances under which Equity Bank sold the properties after Mr. Kamya and his wife petitioned the president but the BOU report, tracing the chronology of the events indicate that Mr. Kamya’s troubles started way back in 2016 long before the Covid-19 pandemic, one of the major reasons the city businessman gave for his failure to meet his loan obligations as justification for the President’s intervention.

Mr. Kamya’s Simbamanyo House was sold to tycoon Sudhir Ruparelia’s Meera Investments at UGX 18.5 billion while his Afrique Suites was sold to Luwaluwa Investments.

Mr. Ruparelia has since renamed Simbamanyo House to Gender & Labour House.After losing a Court Appeal application that tried to reverse the sale of Simbamanyo House and Afrique Suites, Mr. Kamya then sought the intervention of President Museveni.

But the BoU also shows that Mr. Kamya continued to receive billions of rent payments until May 2020, but did not remit any for his loan obligations.

The report according to sources is effectively the Bank of Uganda’s representation to President Museveni, following his directive for an investigation and presents Mr. Kamya’s version of the events was misleading after losing successive court battles that started with him taking on Equity Bank, after he was pressed to honor his obligations.

“From 2016 to September 2020, Mr. Kamya continued to receive from the mortgaged properties without considering paying back the loan but instead chose to ignore the agreement as he opted for legal means even with reminders no payment came through,” the detailed report, chronicling the events surrounding the standoff between Simbamanyo Estates Limited and Equity Bank Uganda Limited and Equity Bank Kenya Limited.

The BoU report indicates that between 2012-2014, the Mr. Kamya took a loan in excess of $7.1 million before interest and secured the said facilities by mortgaging LRV 2220 Plot 2 folio Lumumba Avenue (Simbamanyo House) and properties comprised in Kyadondo block 243 Plots 95, 958,2794,17800 and block 237 Plot 95 land at Mutungo (Afrique Suites).

“And by October 8, 2020, Simbamanyo did not deposit the said 30% as ordered by the court. In the absence of any further orders from court stopping the auction, the mortgaged properties were sold after a public auction, in accordance with provisions of the Mortgage Act and the Mortgage Regulations to the highest bidders”.

The report says in 2016 Simbamanyo defaulted on those loan facilities and to buy time filed HCCS No.544 of 2016 alleging that its accounts had been wrongly debited and therefore, it refused to make any further payments of its loan obligations.

The report further says an independent report was undertaken by Ernest and Young showed that the discrepancy was a total of only $442.

“In mid 2017, Equity Bank Uganda Limited began foreclosure proceedings against Simbamanyo to recover the outstanding loan and Simbamanyo filed Miscellaneous Application No.1159 of 2017 seeking a temporary injunction stopping Equity Bank Uganda Limited from foreclosing and selling the mortgaged property” reads the report from BoU sent to President Museveni.

In October 2017, Justice Billy Kainamura issued his ruling in the Miscellaneous Application No. 1159 of 2017 and, in accordance with the Mortgage Property Act, and ordered Simbamanyo Estates to deposit 30% of the outstanding loan amount otherwise Equity Bank Uganda Limited would be at liberty to sale of the mortgage properties at a public auction after 30 days.

The report explains that in November 2017, Simbamanyo Estatesdid not appeal against the ruling of Justice Kainamura but instead filed a Constitutional petition No.42 of 2017 Simbamanyo vs Attorney General and Equity bank Uganda Limited before the Constitutional Court challenging the legality of the ruling 13 of the Mortgage Regulations 2013 (The regulation which requires defaulting mortgagors to deposit 30% of the outstanding loan before they can stop a public auction pf the securities.

On November 16, 2017, Simbamanyo wrote to Equity Bank Uganda Limited and Equity Bank Kenya Limited informing them that it had appointed Nisk Capital as its advisors and that it had approached bank One Mauritius (Bank One) to get a two-year loan to refinance the existing loans with Equity Bank Uganda Limited and Equity Bank Kenya Limited and get additional funds to complete Afrique Suites. Bank One had stated however, that it needed Equity Bank Kenya limited to provide a Stand By Letter to Bank One a security for this loan. Equity Bank Uganda did not therefore foreclose on the properties.

“On June 4, 2020, Equity Bank Uganda Limited issued a notice of default to Simbamanyo for its failure to service its loan obligations and declared its intention to foreclose and recover the loan obligations. On June 24, 2020, in response to the notice of default, Simbamanyo set down Miscellaneous Application No. 394 of 2021 seeking for a temporary injunction stopping Equity Bank Uganda Limited from foreclosing on the mortgaged properties.”

The report further reveals that on July 4, 2020, in accordance with the Mortgage Act 2009, Equity Bank Uganda Limited retained an independent valuation firm which carried out an independent valuation of the mortgaged properties confirming that the forced sale value for Simbamanyo House was $4.6 million and Afrique Suites was $4 million.

According to the report, on August 13, 2020, Simbamanyo Estates also filed Miscellaneous Applications No.601 2021 seeking for an interim injunction from court to stop the proposed sale by public auction of the mortgaged properties by Equity Bank Uganda Limited but on September 2, 2020, the High Court Registrar issued its ruling in Miscellaneous Application No.601 2021 and granted the application for interim stay on condition that Simbamanyo pays 30% of the outstanding loan amount of $10.5 million ($10,514,501).

In between September 2 and September 7, 2020, Simbamanyo then filed Miscellaneous Application No.678 of 2020 seeking for an interim stay of the orders of the Registrar authorizing the auction and Miscellaneous Application No. 679 of 2020 appealing against the decision of the Registrar.

According to the report, on September 7,2020 Miscellaneous Application No. 678 of 2020 came up for hearing the High Court upheld the ruling of the Registrar save that Simbamanyo was ordered to pay the 30% of the outstanding loan amount on or before October 7, 2020. Miscellaneous Application No. 679 of 2020 was adjourned at Simbamanyo’s request.

Records show Mr. Kamya continue to receive rent payments even during the COVID-19 pandemic but ignored his loan obligations.

The report says on September 8, 2020, Equity Bank Uganda Limited through its lawyers in response to a Caveat Emptor advert placed in the New Vision by Simbamany, clarified to the general public that unless Simbamanyo made the court ordered payment, it would proceed to sell the mortgaged properties by public auction on October 8, 2020.

On the same day, September 8, 2020, in accordance with the Mortgage Act, Equity Bank Uganda Limited through its auctioneers CL Risk Management Limited advertised the mortgaged properties for sale and informed the general public that the properties would be sold to the highest bidder on October 8, 2020 if Simbamanyo did not deposit the 30% of the outstanding loan amount as ordered by the court.Simbamanyo then filed Miscellaneous Applications No.719 of 2020 seeking a stay of execution of the orders of the High Court judge in Miscellaneous Application No.678 of 2020 and also filed Miscellaneous Application No. 720 of 2020 seeking for leave to appeal against the ruling of the High Court judge in Miscellaneous Application No.678 of 2020. The two applications were consolidated.

On October 6, 2020, the High Court issued a ruling in the consolidated Miscellaneous Application Nos.719 and 720 of 2020 dismissing both applications.

“Essentially the judge upheld the ruling of the Registrar that had ordered that Simbamanyo should pay 30% of the outstanding loan amounts within 30 days of the date of his earlier ruling of September 6, 2020 otherwise the mortgaged property would be sold”.

And by October 8, 2020, Simbamanyo did not deposit the said 30% as ordered by the court. In the absence of any further orders from court stopping the auction, the mortgaged properties were sold after a public auction, in accordance with provisions of the Mortgage Act and the Mortgage Regulations to the highest bidders. Meera Investments Limited (“Meera”) bought Simbamanyo House for $5 million and LuwaluwaI investment Limited (“Luwaluwa”) bought Afrique Suites for $4.3 million (4,350,000)”.

“It is important to note that this sale by public auction, as required by the Mortgage Act took place on October 8, 2020 within the six months period after the valuation report was made on July 4, 2020. The properties were also sold at prices above their forced sale value to Meera and Luwaluwa who were then registered on the same properties as the new owners”.

The report further says that after the sale of the property, on October 20, 2020, Simbamanyo then filed Civil Applications No. 249 and 251 of 2020 in Court of Appeal against the ruling of the High Court judge in Miscellaneous Application Nos 678, 719 and 720 of 2020.

“Simbamanyo and Peter Kamya (“Kamya”) not being satisfied with the sale filed a new suit against Equity Bank Uganda Limited, Meera Luwaluwa and the Commissioner Land Registration (“the Commissioner”) under HCCS No.837 of 2020 alleging among other things that the sale was wrongful, the property was undervalued and praying that the transfer be reversed.

Simbamanyo Estates and Mr. Kamya also filed Miscellaneous Application seeking for a temporary injunction to reverse the sale of the mortgaged properties pending the hearing of the new suit HCCS No 837 of 2020”.

“On December 17, 2020, High Court issued a ruling dismissing Simbamanyo’s application under Miscellaneous Application No.445 of 2020 which had been seeking to strike out the Written Statement of Defence filed by Equity Bank Uganda Limited and Equity Bank Kenya Limited and ruled that the main suit HCCS nO.198 of 2020 should be heard on its full merit. This original suit, HCCS No. 2020, is still ongoing and is next coming up for hearing in the Commercial Court on September 2021.

On December 20, 2020, High Court issued a ruling refusing to grant Simbamanyo’s request for a temporary injunction under Miscellaneous Application No. of 2020, that the sale, transfer and registration of mortgaged properties into the names of Meera and Luwaluwa be reversed pending the hearing of HCCS No.837 of 2020”.

However, on January 7, 2021, Simbamanyo also filed a notice of Appeal against the ruling of the learned Registrar refusing to reverse the sale and transfer of the mortgaged properties. This appeal is yet to be heard by Court of Appeal.

On February 17, 2021, Simbamanyo’s suit against Equity Bank Uganda Limited, Meera, Luwaluwa and the Commissioner, HCCS No.837 of 2020, abated because Simbamanyo did not file summons for direction in time which meant that the suit against Equity Bank Uganda Limited, Meera, Luwaluwa and the Commissioner was dismissed and this was confirmed by an order of signed by the registrar of the High Court.

The report further shows that on February 21, 2021, Simbamanyo and Kamya appealed against this abatement to a judge of the High Court and also appealed for stay of execution pending the hearing of the Appeal but court declined to grant Simbamanyo the stay of execution.

“On July 30, 2021, the High Court judge dismissed the appeal that Simbamanyo and Kamya had filed against Abatement with costs and HCCS No.837 of 2020.

“The suit against Equity Bank Uganda Limited, Meera, Luwaluwa and the Commissioner therefore, stands abated and dismissed from High Court”.

Having last the above, On August 3, 2021, Simbamanyo and Kamya filed another suit against Equity Bank Uganda Limited, Meera, Luwaluwa and the Commissioner, HCCS No of 2021, on the same facts raising the same issues contained in the previous suit HCCS No. 837 of 2020 challenging the validity of the sale of the mortgaged properties.

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