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General Industries (U) Limited v Z.J Hasham Fish Industries Limited & 2 Others (Civil Appeal 5 of 2019)

Supreme Court · [2021] UGSC 22 · 2021 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second civil appeal from a Court of Appeal decision which upheld a ruling of the Non-Performing Assets Recovery Tribunal
Decision
Appeal dismissed and orders of the Court of Appeal confirmed, with costs to the respondents.

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Holding

The Supreme Court dismissed a second appeal arising from the Non-Performing Assets Recovery Tribunal. It held that section 72 of the Civil Procedure Act governs second appeals to the Court of Appeal, not to the Supreme Court, whose jurisdiction is set by the Judicature Act and rule 30(1) of its Rules, so that objection failed. However, grounds 3, 7, 8, 9, 10, 11 and 12 were argumentative and narrative, offending rule 82(1), and were struck out. The remaining grounds rested on a non-existent finding of illegality; the Court of Appeal had not held the acquisition illegal, the claim was res judicata, and an illegal subsequent sale does not reverse a foreclosure on a debt due. Costs to the respondents were upheld.

Facts

General Parts (U) Ltd mortgaged property to Uganda Commercial Bank for a loan of UGX 700,000,000. The Non-Performing Assets Recovery Trust (NPART) took over the loan by operation of law, and responsibility for repayment passed to the appellant, General Industries (U) Ltd. On default, NPART foreclosed on the appellant's mailo properties, which were sold to Tasfah Limited and later transferred to Dott Services (U) Limited. The appellant filed Tribunal Claim No. 32 of 1999 before the NPART Tribunal seeking discharge from liability and other remedies. The tribunal struck out the claim as res judicata. The Court of Appeal upheld that ruling and dismissed the appeal with costs. The appellant brought a second appeal to the Supreme Court, raising twelve grounds and contending the property acquisitions were illegal and the matter should have been remitted for hearing.

Issues

  1. Whether section 72 of the Civil Procedure Act, which limits second appeals to questions of law, applies to second appeals before the Supreme Court.
  2. Whether the appellant's grounds of appeal were argumentative, narrative and not concise so as to offend rule 82(1) of the Rules of the Supreme Court.
  3. Whether the issues raised in the appeal were res judicata having been determined in prior proceedings.
  4. Whether the Court of Appeal erred in not reversing the foreclosure and remitting the tribunal claim for hearing on the merits.
  5. Whether the Court of Appeal erred in awarding costs to the respondents.

Orders

  • Appeal dismissed.
  • Orders of the Court of Appeal confirmed.
  • Costs awarded to the respondents in the Supreme Court and in the courts below.

Key headnotes

Civil Procedure — Second Appeals — Applicability of section 72 of the Civil Procedure Act to the Supreme Court
Section 72 of the Civil Procedure Act governs second appeals from the High Court to the Court of Appeal and does not apply to appeals to the Supreme Court, whose appellate jurisdiction is governed by the Judicature Act and rule 30(1) of the Rules of the Supreme Court, under which the Court may decide matters of law or mixed law and fact.
Civil Procedure — Second Appeals — Scope of review of findings of fact
On a second appeal the appellate court is precluded from questioning findings of fact of the trial court where there is evidence to support them, even if it might not itself have reached the same conclusion; it may interfere only where there was no evidence to support the finding, which is a question of law.
Civil Procedure — Memorandum of Appeal — Rule 82(1) of the Rules of the Supreme Court
Grounds of appeal that are not concise and are argumentative and narrative, almost amounting to submissions, offend rule 82(1) of the Rules of the Supreme Court and are liable to be struck out.
Civil Procedure — Res Judicata — No remission where matter already determined
Where the substance of a claim has been conclusively determined in earlier proceedings, the claim is res judicata and there is nothing to remit to the lower court for hearing on the merits; remedies cannot be granted in a suit dismissed as res judicata.
Land & Property — Mortgage and Foreclosure — Effect of an illegal subsequent sale
An illegality in the subsequent sale of foreclosed property does not reverse a foreclosure effected on a debt that is due and owing; at most the sale may be nullified and the property resold, with the mortgagor participating only as an ordinary buyer and not by way of redemption.
Civil Procedure — Costs — Discretion under section 27 of the Civil Procedure Act
The award of costs is discretionary under section 27 of the Civil Procedure Act and costs generally follow the event; an appellate court will not interfere with the lower court's exercise of that discretion unless it was exercised unjudicially, on a wrong principle, or for reasons that are not good reasons.

Legislation cited (14)

  • Civil Procedure Act Cap 71 s.72
  • Civil Procedure Act Cap 71 s.27
  • Civil Procedure Act Cap 71 s.7
  • Civil Procedure Act Cap 71 s.2
  • Civil Procedure Rules Order 7 Rule 11(d)
  • Judicature Act Cap 13 s.5
  • Judicature Act Cap 13 s.6
  • Judicature Act Cap 13 s.7
  • Non-Performing Assets Recovery Trust Act Cap 95 s.14
  • Non-Performing Assets Recovery Trust Act Cap 95 s.15(2)
  • Non-Performing Assets Recovery Trust Act Cap 95 s.15(3)
  • Judicature (Supreme Court Rules) Directions SI 13-11 rule 30(1)
  • Judicature (Supreme Court Rules) Directions SI 13-11 rule 82(1)
  • Judicature (Supreme Court Rules) Directions SI 13-11 rule 83(1)

Cases cited (9)

  • Beatrice Kobusingye v Fiona Nyakana & Another (Civil Appeal No. 5 of 2004)
  • Dina Okidi & Another v George Willy Odwong (Civil Appeal No. 233 of 2015)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Departed Asians Property Custodian Board v Jaffer Brothers (Civil Appeal No. 9 of 1998)
  • Kiska Ltd v Augelias [1969] EA 6
  • Makula International v His Eminence Cardinal Nsubuga (Civil Appeal No. 4 of 1981)
  • Lakshmi Brothers Ltd v R. Raja & Sons [1956] EA 313
  • General Industries (U) Ltd v NPART (Civil Appeal No. 5 of 1998)
  • Tasfah Ltd & NPART v General Industries (U) Ltd (Tribunal Miscellaneous Application No. 7 of 1997)
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