Hwang Sung Limited v M & D Timber Merchants & Transporters Limited (Civil Appeal 2 of 2018)

Supreme Court · [2018] UGSC 91 · 2018 Appeal Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second appeal to the Supreme Court from the Court of Appeal (Civil Appeal No. 30 of 2016), concerning whether a High Court order striking out the appellant's suit was a decree appealable as of right.

Decision

Appeal allowed; matter remitted to the High Court for hearing on its merits.

The full judgment

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Holding

The Supreme Court allowed the appeal, holding that an order which has the characteristic and consequence of bringing a whole suit to finality is a decree within the meaning of section 2(c) of the Civil Procedure Act, and is therefore appealable as of right without leave of court. An order striking out a suit that finally determines the whole suit is not a mere interlocutory order but a disguised final decree, giving the affected party an automatic right of appeal. The appeal was allowed with costs to the appellant in the Supreme Court and in the courts below, and the matter was remitted to the High Court for hearing on its merits.

Facts

The appellant filed a suit in the High Court in a matter whose subject was land. The High Court struck out the appellant's suit, apparently on grounds connected with limitation (section 5 of the Limitation Act) and Order 7 Rule 6 of the Civil Procedure Rules. The appellant appealed to the Court of Appeal in Civil Appeal No. 30 of 2016, and the matter then came before the Supreme Court. The central question was procedural: whether the High Court's order striking out the suit finally disposed of the whole suit, thereby constituting a decree appealable as of right, rather than an interlocutory order requiring leave to appeal.

Issues

Whether the High Court's decision to strike out the appellant's suit finally disposed of and determined the whole suit so as to constitute a decree.
Whether such an order was appealable as of right without the appellant seeking leave to appeal.

Orders

Appeal allowed with costs to the appellant in the Supreme Court and in the courts below.
The case remitted to the High Court for hearing on its merits.

Key headnotes

Civil Procedure — Decrees — Order striking out a suit — Meaning of decree under section 2(c) of the Civil Procedure Act

An order that has the characteristic and consequence of bringing a whole suit to finality is a decree within the meaning of section 2(c) of the Civil Procedure Act, and is therefore appealable as of right.

Civil Procedure — Right of Appeal — Final order disguised as an interlocutory order

Where the decision to strike out a suit finally disposes of and determines the whole suit, the affected party has an automatic right of appeal without recourse to seeking leave of court; appellate courts must ascertain whether an apparently ordinary order striking out a suit is in fact a disguised final decree.

Constitutional Law — Administration of Justice — Article 126(2)(e) — Technicalities

Section 5 of the Limitation Act and Order 7 Rule 6 of the Civil Procedure Rules are technicalities which cannot override the constitutional command in Article 126(2)(e) that substantive justice be administered without undue regard to technicalities.

Legislation cited (5)

Civil Procedure Act s.2(c)
Civil Procedure Rules Order 7 Rule 6
Civil Procedure Rules Order 44
Limitation Act s.5
Constitution of Uganda Article 126(2)(e)

Cases cited (1)

South British Insurance Co Ltd v Muhamedali Taibji Ltd (1973) EA 210

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.