Wakilii

D.S Mubiru v The Cooperative Bank Ltd [1983] UGSC 1

Supreme Court · 1983 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from a High Court ruling upholding a preliminary objection that struck out the suit as premature.
Decision
Appeal allowed; preliminary objection rejected and suit reinstated; matter remitted to the High Court for hearing on the merits.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that the Motor Vehicle (Third Party Risks) Insurance Fund Decree No. 5 of 1978 does not oust the common law jurisdiction of the courts. Clear words or necessary implication are required to exclude the subject's recourse to the courts, and these are absent from the Decree. The mandatory pre-action procedure under section 29 applies only to claims against the Fund and the nominal defendant, not to claims against a tortfeasor, who remains independently liable and may be sued directly. The appellant's common law suit for special damages was therefore properly instituted and not premature. The appeal was allowed and the matter remitted to the High Court for hearing on the merits.

Outcome

Appeal allowed; preliminary objection rejected and suit reinstated; matter remitted to the High Court for hearing on the merits.

Facts

On 31 December 1980 the appellant's vehicle was involved in an accident with another vehicle that appeared, from its markings, to belong to the respondent. The appellant filed a common law suit in the High Court (Civil Suit No. 335 of 1981) claiming special damages and costs. The respondent raised a preliminary objection that the suit was bad in law and premature because the appellant had not first complied with the mandatory pre-action procedure under the Motor Vehicle (Third Party Risks) Insurance Fund Decree No. 5 of 1978 — in particular filing the claim before the Committee or Tribunal under section 29 and obtaining a certificate under section 36. The trial judge upheld the objection and struck out the suit with costs. It was undisputed that, although the Decree had been in force for over four years, none of its organs (the Board, Committee, Tribunal or Registrar of the Fund) had ever been constituted, so no claim could in fact be filed and no certificate issued. The appellant appealed.

Issues

  1. Whether the Motor Vehicle (Third Party Risks) Insurance Fund Decree No. 5 of 1978 ousted the common law jurisdiction of the courts to hear claims arising from motor accidents.
  2. Whether the appellant's suit was premature for failure to comply with the pre-action procedure under sections 29 and 36 of the Decree before its statutory organs had been constituted.
  3. Whether section 29 of the Decree precludes an action being brought directly against a tortfeasor (the owner of the offending vehicle), or applies only to claims against the Fund and the nominal defendant.

Orders

  • Appeal allowed with costs in this court and in the court below.
  • Case remitted to the High Court for hearing on the merits.

Rules and key headnotes

Statutory Interpretation — Ouster of Jurisdiction — Requirement of Express Words or Necessary Implication
A statute will not be construed to exclude the subject's recourse to the courts unless it does so by clear express words or necessary implication.
Statutory Interpretation — Presumption Against Alteration of Existing Law
The general words of a statute are not to be construed so as to alter the previous policy of the law unless no sense or meaning can be applied to those words consistently with preserving the existing policy.
Civil Procedure — Common Law Jurisdiction — Statutory Pre-action Procedure
The Motor Vehicle (Third Party Risks) Insurance Fund Decree No. 5 of 1978 does not divest the courts of their common law jurisdiction to entertain claims arising from motor accidents, and a suit so brought is properly instituted.
Tort Law — Motor Accidents — Independent Liability of Tortfeasor
The owner of a motor vehicle which causes damage remains independently liable as a tortfeasor and may be sued directly; the Decree's mandatory pre-action procedure under section 29 applies only to claims against the Fund and the nominal defendant.
Civil Procedure — Premature Suit — Condition Precedent — Inoperative Statutory Machinery
Where the statutory bodies required to receive a claim under a Decree have never been constituted, a claimant cannot be denied recourse to the courts on the ground that the statutory pre-action procedure was not exhausted.

Legislation cited (8)

  • Motor Vehicle (Third Party Risks) Insurance Fund Decree No. 5 of 1978 s.29
  • Motor Vehicle (Third Party Risks) Insurance Fund Decree No. 5 of 1978 s.36(1)
  • Motor Vehicle (Third Party Risks) Insurance Fund Decree No. 5 of 1978 s.21
  • Motor Vehicle (Third Party Risks) Insurance Fund Decree No. 5 of 1978 s.22
  • Motor Vehicle (Third Party Risks) Insurance Fund Decree No. 5 of 1978 s.24
  • Motor Vehicle (Third Party Risks) Insurance Fund Decree No. 5 of 1978 s.27
  • Motor Vehicle (Third Party Risks) Insurance Fund Decree No. 5 of 1978 s.39
  • Motor Vehicle (Third Party Risks) Insurance Fund Decree No. 5 of 1978 s.45

Cases cited (9)

  • Matida Namatovu v. Sarah Nansubuga C.C.S. No. 656 of 1984
  • Yusufu Kigozi v Toro African Bus Co. (H.C.C.S. No. 642 of 1980)
  • Bulafu v Kagwa (H.C.C.S. No. 323 of 1980)
  • Ntungwerisho and Others v Charity Kakuhikire (H.C.C.S. No. 604 of 1980)
  • National Assistance Board v Wilkinson [1952] 2 QB 648
  • Minet v Leman (1855) 24 Beav 278
  • Pyx Granite Co Ltd v Ministry of Housing and Local Government [1959] 3 All ER 1
  • Chite v East African Community [1970] E.A. 487
  • Albon v Pyke (1842) 4 Man & G 421

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

D.S Mubiru v The Cooperative Bank Ltd [1983] UGSC 1 (31 January 1983)
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.