Wakilii

Standard Chartered Bank (U) Ltd. v Grand Hotel (U) Ltd. (CIVIL APPEAL NO. 13 OF 1999)

Court of Appeal · [1999] UGCA 64 · 1999 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from a High Court judgment dismissing an Originating Summons for foreclosure and sale of mortgaged property, with a cross-appeal by the respondent
Decision
Appeal allowed, High Court judgment set aside, judgment entered for the appellant Bank; cross-appeal dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that a court cannot decide a case on an issue that was neither pleaded nor left to it for decision by the parties, and that the trial judge's reliance on the unpleaded ground that the demand letter was unsigned caused a failure of justice. Since the matter was heard on its merits, dismissal (not striking out) was the proper order below. On the cross-appeal, the Court held a decree is no longer an essential document in a record of appeal unless its date or terms are disputed, and Originating Summons was the correct procedure for foreclosure under Order 34 rule 3A. The appeal was allowed and the cross-appeal dismissed.

Outcome

Appeal allowed, High Court judgment set aside, judgment entered for the appellant Bank; cross-appeal dismissed

Facts

The respondent Company was registered proprietor of two leasehold properties in Kampala. In 1965 it deposited the certificates of title with the appellant Bank as security for two loan facilities payable in pounds sterling, executing a memorandum of deposit requiring repayment on demand. In 1972 the shareholders left Uganda during the "Economic war" and the properties were expropriated and transferred to the Departed Asians Properties Custodian Board under the Assets of Departed Asians Decree 1973. In 1991 the respondent repossessed the properties under the Expropriated Properties Act 1982 and demanded release of the titles, claiming the mortgage had been extinguished under section 19 of the Limitation Act. The Bank contended the debt had been acknowledged during government custody and demanded payment of £158,376.89. When the respondent failed to pay, the Bank took out an Originating Summons for foreclosure and sale. The trial judge resolved all framed issues in the Bank's favour but declined foreclosure solely because the demand letter (Annexture D) was unsigned, an issue never pleaded.

Issues

  1. Whether the trial judge erred in dismissing the claim on the ground that the letter of demand (Annexture D) was not signed, an issue that had not been pleaded or raised by the parties.
  2. Whether, having found the appellant had an accrued enforceable right, the suit should have been struck out rather than dismissed.
  3. Whether the appeal was incompetent for want of a formal drawn-up order or decree.
  4. Whether the Originating Summons was the correct procedure for the relief sought.

Orders

  • Appeal allowed.
  • Judgment of the High Court set aside and judgment entered for the appellant Bank.
  • Cross-appeal dismissed.
  • Costs of the appeal and in the court below awarded to the appellant Bank, plus the costs of the cross-appeal.

Rules and key headnotes

Pleadings — Decision on Unpleaded Issue — Jurisdiction of Court
A court may not base its decision on an issue that was neither pleaded nor left to it for decision by the course followed at trial; reliance on such an unpleaded issue causes a failure of justice warranting interference on appeal.
Dismissal versus Striking Out — Effect of Hearing on Merits
Where a suit has been heard on its merits, dismissal rather than striking out is the proper order, notwithstanding that a dismissal bars subsequent proceedings for the same relief unless set aside on appeal.
Record of Appeal — Necessity of Formal Decree or Order
A decree or order is no longer an essential document in a record of appeal; it forms part of the record only where its date is disputed, its terms are said to be at variance with the judgment, or its terms form a ground of appeal.
Competence of Appeal — Waiver of Objection to Notice of Appeal
An objection that no appeal lies for want of an extracted formal order must be raised by proceeding under the relevant rule to strike out the Notice of Appeal, or with leave at the hearing; failure to do so precludes the objection to competence.
Mortgages — Foreclosure — Proper Procedure by Originating Summons
A mortgagee claiming to be entitled to foreclosure and sale of mortgaged property may properly take out an Originating Summons under Order 34 rule 3A of the Civil Procedure Rules.

Legislation cited (8)

Cases cited (5)

  • Captain Harry Gandy v Caspar Air Charter Ltd (1956) 23 EACA 139
  • Blay v Pollard and Morris (1930) 1 KB 682
  • Fernandes v People Newspapers Ltd
  • Odd Jobs v Mubia (1970) EA 476
  • Kulsumbai v Abdulhussein (1957) EA 699

Full judgment

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

Standard Chartered Bank (U) Ltd. v Grand Hotel (U) Ltd. (CIVIL APPEAL NO. 13 OF 1999) [1999] UGCA 64 (15 April 1999)
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.