Wakilii

Standard Chartered Bank (Uganda) Limited v Grand Hotel (Uganda) Limited (Civil Appeal No. 13 of 1999)

Court of Appeal · [1999] UGCA 63 · 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 cross-appeal.
Decision
Appeal allowed, High Court judgment set aside and 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 unpleaded issue that was not left to it for decision by the parties. The trial judge wrongly denied the mortgagee bank foreclosure on the sole ground that a demand letter was unsigned, a matter never pleaded or raised at trial, causing a failure of justice. A dismissal (rather than a striking out) was proper because the matter was heard on its merits. Originating Summons under Order 34 rule 3A was the correct procedure for a mortgagee's foreclosure and sale claim. A decree is no longer an essential document in the record of appeal. The appeal was allowed and the cross-appeal dismissed.

Outcome

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

Facts

In 1965 Grand Hotel (Uganda) Limited, registered proprietor of two leasehold properties in Kampala (Plot 4 Portal Avenue and Plot 6 Speke Road), deposited the certificates of title with Standard Chartered Bank as security for loan facilities payable in pounds sterling, executing a memorandum of deposit. In 1972 the company's shareholders and directors left Uganda during the "economic war", and the mortgaged properties were expropriated and vested in the Departed Asians Properties Custodian Board under the Assets of Departed Asians Decree 1973. In 1991 the company repossessed the properties under the Expropriated Properties Act 1982 and demanded release of the title deeds, contending the mortgage had been extinguished under section 19 of the Limitation Act. The Bank contended acknowledgements of its debt during government custody preserved the mortgage, and demanded payment of the outstanding loans. When payment was refused, the Bank took out an Originating Summons for foreclosure and sale.

Issues

  1. Whether the trial judge erred in declining to grant foreclosure and sale on the ground that a demand letter (Annexture D) was unsigned, when that was not an issue pleaded or put before the court.
  2. Whether, having found an accrued enforceable right, the suit should have been struck out rather than dismissed.
  3. Whether the appeal was incompetent because no formal order or decree had been extracted.
  4. Whether Originating Summons was the correct procedure for the mortgagee's claim for foreclosure and sale.

Orders

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

Rules and key headnotes

Pleadings — Decision on Unpleaded Issues — Jurisdiction to Decree
A court cannot base its decision on an issue that was neither pleaded nor put before it by the parties; in East Africa a court may decide on an unpleaded issue only where it appears from the course followed at trial that the issue was left to the court for decision.
Judgment — Failure of Justice — Deciding on Ground Not in Issue
Where a trial judge denies relief on a ground that was not a live issue in the proceedings, the resulting decision is wrong and occasions a failure of justice warranting appellate intervention.
Disposal of Suit — Dismissal versus Striking Out
Where a matter 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.
Mortgages — Foreclosure and Sale — Proper Procedure by Originating Summons
A mortgagee claiming foreclosure and sale of a mortgaged property may properly take out an Originating Summons under Order 34 rule 3A of the Civil Procedure Rules.
Appeals — Record of Appeal — Decree No Longer Essential Document
A decree or order is no longer an essential document in a record of appeal, except where the date of the decree is disputed, its terms are disputed as being at variance with the judgment, or its terms form a ground of the appeal.

Legislation cited (8)

Cases cited (5)

  • Captain Harry Gandy v Caspar Air Charter Ltd., 21 EACA 139
  • Blay v Pollard and Morris [1930] 1 KB 682
  • Fernandes v People Newspapers Ltd
  • Odd Jobs v Mubia [1970] EA 476
  • Kulsumbai and Another v Abdulhussein and Others [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 (Uganda) Limited v Grand Hotel (Uganda) Limited (Civil Appeal No. 13 of 1999) [1999] UGCA 63 (1 January 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.