Wakilii

Attorney General v L. Indiron and Others (CIVIL APPEAL NO.4 OF 2009)

Court of Appeal · [2009] UGCA 64 · 2009 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Civil appeal from a High Court (Commercial Division) ruling overruling a preliminary objection on limitation
Decision
Appeal dismissed; preliminary objection on limitation correctly overruled and trial of the consolidated suits to proceed

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Holding

The Court of Appeal dismissed the Attorney General's appeal against the High Court's overruling of a preliminary objection that consolidated suits by creditors of divested public enterprises were time barred. The Court held that whether the orders of SCCA No. 43 of 1995 had been complied with had to be ascertained at trial and could not be disposed of by preliminary objection. Applying Mukisa Biscuits, a preliminary objection cannot succeed where facts must be ascertained. Properly interpreting section 47 of the PERD Act, the divestiture policy prevailed over the limitation laws, and time could only run once the divestiture process was complete — a question of fact for trial.

Facts

The respondents were proved creditors of two public enterprises placed under liquidation and receivership under the Public Enterprises Reform and Divestiture (PERD) Act 1993. The proceeds of the divestiture process were insufficient to pay the creditors in full. The respondents filed separate suits against the appellant and another, claiming payment of the unpaid balances with interest. The suits, being similar and against the same parties, were consolidated. Before the hearing could proceed, the appellant raised a preliminary objection that the suits were time barred, arguing the claim was a tort that should have been brought within two years of 1994 when most company debtors were divested. The respondents argued the consolidated suit had several dates of cause of action, and that HCCS No. 616 of 2007 was founded on SCCA No. 43 of 1995 which had not been complied with. The High Court (Commercial Division, Kiryabwire J.) overruled the objection and ordered trial to proceed, leading to this appeal.

Issues

  1. Whether the consolidated suits were time barred such that the claim could be disposed of on a preliminary objection.
  2. Whether the question of when time begins to run for limitation purposes, given the PERD Act divestiture process, was a question of fact to be determined at trial.

Orders

  • Appeal dismissed.
  • Costs of the appeal awarded to the respondents.

Key headnotes

Civil Procedure — Preliminary Objections — Limited to Pure Points of Law
A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised where any fact has to be ascertained or where what is sought is the exercise of judicial discretion.
Civil Procedure — Limitation — Time of Accrual as a Question of Fact
Where the date on which a cause of action accrues, and therefore when time begins to run for limitation purposes, depends on disputed facts, the limitation question must be determined by trial and cannot be disposed of on a preliminary objection.
Statutory Interpretation — Public Enterprises Reform and Divestiture Act — Section 47 Overriding Effect
Section 47 of the PERD Act gives the Government's policy on reform and divestiture of state owned enterprises overriding effect over other enactments, including the Limitation Act, so that time for limitation purposes can only begin to run once the divestiture process has been completed.

Legislation cited (3)

  • Public Enterprises Reform and Divestiture Act 1993 s.47
  • Limitation Act
  • Civil Procedure and Limitation (Miscellaneous Provisions) Act

Cases cited (4)

  • Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969] EA 696
  • Sidpra v Odaka and Milton Obote Foundation (HCCS No. 365 of 2007)
  • Stokes v Grant (1878) 4 CPD 25
  • S.C.C.A. No. 43 of 1995
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.