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Mugenyi and Another v Nasser (Civil Application 526 of 2023; Civil Application No. 1150 of 2023)

Court of Appeal · [2024] UGCA 339 · 2024 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Consolidated applications for leave to appeal against an interlocutory High Court order amending a plaint, and to stay the underlying suit pending that appeal
Decision
Both consolidated applications dismissed with costs; leave to appeal and stay of proceedings refused

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Holding

The Court of Appeal refused leave to appeal against the High Court's interlocutory order permitting the respondent to amend his plaint and add parties. It held there was no serious question of law or fact meriting consideration: the amendment was founded on newly discovered facts amounting to fraud, and where a cause of action is founded on fraud the limitation period runs only from discovery of the fraud, so the trial judge was not bound to dispose of the limitation objection. The res judicata objection failed because the pleaded facts were new and different. As the stay application depended on the leave application, it too failed. Both applications were dismissed with costs, the court strongly discouraging routine interlocutory appeals.

Facts

The respondent sued the first applicant in 2005 over recovery of suit property. After protracted proceedings, the respondent sought and obtained leave to amend his plaint a second time to add four parties and plead particulars of fraud, based on new facts the first applicant had himself disclosed in his witness statement concerning the chain of transfers of the property (including a sale for UGX 50 million and a later exchange involving USD 60,000 to the second applicant). The first applicant objected that the action was time-barred under the Limitation Act and that the trial judge failed to consider that objection. The High Court allowed the amendment and refused leave to appeal. The applicants then sought leave to appeal in the Court of Appeal, together with a stay of the underlying suit. The respondent objected that the limitation point was res judicata and that neither applicant had locus, the second applicant having been de-registered.

Issues

  1. Whether the applicants made out a prima facie case of serious issues of law or fact meriting the grant of leave to appeal against the interlocutory order amending the plaint.
  2. Whether the trial judge's failure to consider the limitation objection was res judicata, having allegedly been determined in Civil Appeal No. 239 of 2015.
  3. Whether the proceedings in High Court Civil Suit No. 87 of 2005 should be stayed pending disposal of the leave application.

Orders

  • Civil Application No. 526 of 2023 dismissed with costs to the Respondent.
  • Civil Application No. 1150 of 2023 dismissed with costs to the Respondent.

Key headnotes

Civil Procedure — Amendment of Pleadings — Effect on Defence of Limitation
An amendment of a plaint may be allowed at any time during the proceedings, even where its effect would be to defeat a defence of limitation, so that all parties are brought before the court and the issues in controversy are fully investigated.
Civil Procedure — Leave to Appeal — Interlocutory Orders
Leave to appeal against an interlocutory order is granted only where, prima facie, there are grounds of appeal raising serious issues of law or fact, or both, that merit judicial consideration by the appellate court.
Limitation of Actions — Cause of Action Founded on Fraud — Accrual
Where a cause of action is founded on fraud, the limitation period does not begin to run until the plaintiff has discovered the fraud, or could with reasonable diligence have discovered it.
Civil Procedure — Res Judicata — New and Different Facts
A matter is not res judicata where the facts pleaded that led to a further amendment are new and different from those previously determined by the court.
Civil Procedure — Interlocutory Appeals — Policy of Discouragement
Interlocutory appeals should be exceptional and not routine; parties should ordinarily await the final decision in the main suit and challenge all interlocutory orders in a single appeal, since interlocutory appeals disrupt litigation, cause delay and exhaust the resources of litigants and the courts.

Legislation cited (7)

  • Limitation Act s.2
  • Limitation Act s.5
  • Limitation Act s.6
  • Limitation Act s.25
  • Court of Appeal Rules r.40(1)
  • Civil Procedure Rules O.40 r.1
  • Civil Procedure Rules O.1 r.3

Cases cited (10)

  • Yesero Mugenyi v Abdul Nasser (Civil Appeal No. 239 of 2015)
  • Eon Kato Lubwama v Habib Buwembo (Election Petition Application No. 2 of 2017)
  • Sango Bay Estates Ltd v Dresdner Bank [1974] EA 17
  • Stanbic Bank of Uganda Ltd v Uganda Crocs Ltd (Civil Appeal No. 4 of 2004)
  • Charles Ssempewo & 143 Others v Silver Springs Hotel Ltd (Civil Application No. 103 of 2003)
  • Barclays Bank D.C.O v Themrudla [1973] EA 451
  • Gaso Transport Services v Adala Obene [1990-1991] EA 88
  • Mulowoza Brothers Ltd v Shah & Co Ltd (SCCA No. 26 of 2010)
  • Noble Builders v Sletco Ltd (SCCA No. 13 of 1995)
  • Civil Application No. 61 of 2020
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.