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

Observed later treatment

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The Supreme Court held that the High Court's dismissal of the suit under Order 7 rule 11(d) of the Civil Procedure Rules conclusively determined the parties' rights and was therefore a decree under section 2(c) of the Civil Procedure Act, appealable as of right without leave, even though styled an order; principal legislation prevails over subsidiary legislation. The Court of Appeal did not err in declining to decide the merits after finding the appeal incompetent. Invoking section 7 of the Judicature Act, the Court found the suit not time-barred — the ownership claim was brought within twelve years of the 2006 title and trespass to land is a continuing tort. Appeal allowed, both lower decisions set aside, case remitted to the High Court.

Outcome

Appeal allowed; both lower court decisions set aside and the case remitted to the High Court for hearing on the merits

Facts

The appellant filed HCCS No. 409 of 2013 seeking a declaration that it was the lawful owner of the suit land, that the respondent was a trespasser, and prayers for vacant possession, mesne profits and damages. The appellant relied on a certificate of title for a 20-year lease commencing 1 August 2006. The respondent filed a defence and counterclaim asserting ownership and exclusive possession, and applied to strike out the suit as time-barred. The trial Judge dismissed the suit under Order 7 rule 11(d) of the Civil Procedure Rules as barred by limitation. The appellant's appeal to the Court of Appeal was dismissed on a preliminary objection that it was incompetent for want of leave to appeal. No evidence was taken in either lower court; both disposed of the matter on preliminary points of law. The appellant appealed to the Supreme Court.

Issues

1. Whether the appellant could appeal to the Court of Appeal against an order dismissing the suit under Order 7 rule 11(d) of the Civil Procedure Rules without first obtaining leave of court.
2. Whether the Court of Appeal erred in not deciding the ground concerning whether the suit was time-barred after upholding the preliminary objection that the appeal was incompetent.
3. Whether, on the face of the plaint, the appellant's suit to recover land was barred by limitation.

Orders

• Appeal allowed.
• The decision of the Court of Appeal set aside.
• The High Court decision set aside.
• Case remitted to the High Court to be heard on its merits.
• Costs of the appeal and in the courts below awarded to the appellant.

Rules and key headnotes

Legislation cited (9)

• Civil Procedure Act s.2(c)
• Civil Procedure Rules Order 7 rule 11(d)
• Civil Procedure Rules Order 44 rule 1
• Civil Procedure Rules Order 44 rule 2
• Civil Procedure Rules Order 6 rule 29
• Limitation Act s.5
• Judicature Act s.7
• Constitution of the Republic of Uganda Article 126(2)(b)
• Rules of the Supreme Court rule 82(1)

Cases cited (6)

• Bank of Uganda v Banco Arabe Espanol [1999] 2 EA 45
• South British Insurance Co. Ltd v Mohamedali Taibji Ltd [1973] EA 210
• Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696
• Attorney General v Major General David Tinyefuza (Constitutional Appeal No. 1 of 1997)
• Justine E.M.N. Lutaaya v Stirling Civil Engineering Company Ltd (Civil Appeal No. 11 of 2002)
• Capt. Philip Ongom v Catherine Nyeko Owata (Civil Appeal No. 14 of 2001)

Cases citing this judgment (2)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

• Musoke Charles and Others v Manyangwa Lovincer and Others (Civil Appeal 159 of 2018)
• Bank of India (U) Limited v Qualicoff (U) Limited and Another (Civil Appeal No. 39 of 2024)

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