Wakilii

D.S Mubiru vs The Cooperative Bank Ltd (Civil Appeal.No. 7 of 1982)

Court of Appeal · [1983] UGCA 2 · 1983 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from a High Court ruling striking out a plaint on a preliminary objection
Decision
Appeal allowed; suit held properly instituted and remitted to the High Court for hearing on merit

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 did not oust the common law jurisdiction of the High Court, as such ouster requires express or clearly implied words which the Decree lacked. Section 29 and its accompanying pre-action procedures apply only to claims brought against the Fund and the nominal defendant, not to claims against a tortfeasor. A person suffering damage from a motor accident may still sue the vehicle owner directly at common law, the owner's liability being preserved by the Decree. The suit was therefore properly instituted and not premature. The appeal was allowed and the case remitted to the High Court for hearing on merits.

Outcome

Appeal allowed; suit held properly instituted and remitted to the High Court for hearing on merit

Facts

On 31 December 1980 an accident occurred between the appellant's vehicle (registration No. UVL 945) and another vehicle (registration No. UWQ 175) apparently belonging to the respondent. The appellant filed a common law suit in the High Court claiming special damages and costs. The respondent raised a preliminary objection that the suit was misconceived and premature because the mandatory provisions of the Motor Vehicle (Third Party Risks) Insurance Fund Decree No. 5 of 1978 had not been complied with before the suit was instituted. The trial judge upheld the objection, holding that the claim had to first be filed before the Committee or Tribunal under section 29, that a certificate under section 36(1) was required before court proceedings, and that common law jurisdiction had been taken away by statute. The plaint was struck out with costs. However, no Committee, Tribunal or Registrar of the Fund had ever been appointed, and no regulations had been made, leaving the Decree's machinery inoperative for over four years. The appellant appealed.

Issues

  1. Whether section 29 of the Motor Vehicle (Third Party Risks) Insurance Fund Decree No. 5 of 1978 divested the High Court of its common law jurisdiction to hear a claim against the owner of a motor vehicle.
  2. Whether a suit against a tortfeasor was premature for failure to first file the claim with the Committee or Tribunal under the Decree.
  3. Whether the claims procedure under the Decree applies to claims against a tortfeasor or only to claims against the Fund and the nominal defendant.

Orders

  • Appeal allowed.
  • Case remitted to the High Court for hearing on merit.
  • Costs to the appellant in the Court of Appeal and in the courts below.

Rules and key headnotes

Statutory Interpretation — Ouster of Court Jurisdiction — Requirement of Express or Clear Words
The common law jurisdiction of the courts cannot be ousted by statute except by express words or necessary implication; general statutory words are not to be construed to alter the previous policy of the law where clear words are absent.
Tort Law — Motor Accidents — Liability of Tortfeasor Preserved Under Insurance Fund Decree
The Motor Vehicle (Third Party Risks) Insurance Fund Decree No. 5 of 1978 does not preclude an action against the owner of a motor vehicle that causes damage; the tortfeasor's liability is preserved, and a claimant may sue the owner directly at common law independently of the Fund.
Civil Procedure — Conditions Precedent to Suit — Scope of Statutory Claims Procedure
The claims procedure under sections 29, 32, 34 and 36 of the Decree, including filing with the Committee and obtaining a certificate, applies only to claims against the Fund and the nominal defendant; it imposes no condition precedent on a suit brought against a tortfeasor.
Statutory Interpretation — Inoperative Statute — Absence of Implementing Machinery
Where the organs required to implement a statutory claims scheme (Committee, Tribunal, Registrar) have not been established, the mandatory time limits for filing cannot be treated as barring a litigant's ordinary recourse to the courts, as this would amount to a denial of justice.

Legislation cited (13)

  • Motor Vehicle (Third Party Risks) Insurance Fund Decree No. 5 of 1978 s.1(2)
  • 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(1)
  • Motor Vehicle (Third Party Risks) Insurance Fund Decree No. 5 of 1978 s.24(5)
  • 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.29
  • Motor Vehicle (Third Party Risks) Insurance Fund Decree No. 5 of 1978 s.32
  • Motor Vehicle (Third Party Risks) Insurance Fund Decree No. 5 of 1978 s.34
  • 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.39
  • Motor Vehicle (Third Party Risks) Insurance Fund Decree No. 5 of 1978 s.43
  • Motor Vehicle (Third Party Risks) Insurance Fund Decree No. 5 of 1978 s.45
  • National Assistance Act 1948

Cases cited (9)

  • Matilda Namatovu vs Sarah Nansubuga H.C.C.S. No. 656 of 1981
  • 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 & 14 others v Mrs. Charity Kakuhikire H.C.C.S. No. 604 of 1980
  • National Assistance Board v Wilkinson (1952) Vol.2 Q.B.D P 255
  • Minet v Leman (1855) 26 Beav at P.278
  • Pyx Granite Co. v Ministry of Housing (1959) 3 ALLER P.1
  • Chite v East African Community (1970) EAC 487
  • Albon v Pyke (1842) 4 Man & G at p 424

Full judgment

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D.S Mubiru vs The Cooperative Bank Ltd (Civil Appeal.No. 7 of 1982) [1983] UGCA 2 (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.