[2018] UGSC 91
The Supreme Court held that the High Court's order striking out the appellant's suit had the effect of finally disposing of the entire suit, thus constituting a final decree within the meaning of section 2(c) of the Civil Procedure Act. Consequently, the appellant had an automatic right of appeal without the need to...
Source-derived case information.
- Citation
- [2018] UGSC 91
- Parties
- Appellant: Hwan Sung Limited; Respondent: M. and D. Timber Merchants and Transporters Limited
- Court
- Supreme Court of Uganda
- Jurisdiction
- Uganda
- Case Number
- Civil Appeal 2 of 2018
- Procedural Posture
- Civil Appeal / Supreme Court Judgment
- Outcome
- appeal_allowed
- Judges
- Mwangusya, JSC, Mwondha, JSC, Buteera, JSC, Nshimye, JSC, Tumwesigye, JSC
- Legal Topics
- Striking Out Suit, Final Decree, Right of Appeal, Limitation Periods, Substantive Justice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hwan Sung Limited
Appellant
M. and D. Timber Merchants and Transporters Limited
Respondent
Procedural Posture
Civil Appeal / Supreme Court Judgment
Legal Issues
- 1 Whether the High Court's order striking out the appellant's suit constituted a final decree, thus giving rise to an automatic right of appeal.
- 2 Whether technical provisions under the Limitation Act and Civil Procedure Rules can override the constitutional requirement for substantive justice.
- 3 Whether the matter should be remitted to the High Court for hearing on its merits.
Ratio Decidendi
The Supreme Court held that the High Court's order striking out the appellant's suit had the effect of finally disposing of the entire suit, thus constituting a final decree within the meaning of section 2(c) of the Civil Procedure Act. Consequently, the appellant had an automatic right of appeal without the need to seek leave. The Court further emphasized that technicalities under the Limitation Act and Civil Procedure Rules cannot override the constitutional imperative to administer substantive justice without undue regard to technicalities, especially in matters involving land rights. The Court allowed the appeal, set aside the orders of the lower courts, and remitted the case to the...
Court Disposition
appeal_allowed
Orders
- The appeal is allowed with costs to the appellant in this Court and the courts below.
- The orders of the lower courts are set aside.
Full Case Text
Judgment text and source record
77 paragraphs
## THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA
(Coram: Mwangusya, Mwondha, Buteera, JJ. S. C. Nshimye, Tumwesigye Ag. $JJ. S. C.$
### CIVIL APPEAL NO. 02 OF 2018
### **Between**
HWANG SUNG LIMITED ....................................
### Versus
M. AND D. TIMBER MERCHANTS A ND TRANSPORTERS LIMITED ....................................
(Appeal against the decision of the Court of Appeal at Kampala before Owiny-Dollo DCJ, Kavuma, Barishaki, JJ. A. in Civil Appeal No. 30 of 2016)
### **JUDGMENT OF MWANGUSYA, JSC**
I have had the benefit of reading in draft the judgment of my learned brother Hon. Justice Buteera, JSC and I agree with his findings and decision that this appeal be allowed with costs to the appellant in this Court and the Courts below.
I also agreed that the case be remitted to the High Court for hearing on its merits.
Dated at Kampala this ....................................
Eldad Mwangusya JUSTICE OF THE SUPREME COURT
### **INTERNAL MEMO**
**To:** Hon. Justice Mwangusya, JSC Hon. Justice Buteera, JSC Hon. Justice Nshimye, Ag. JSC Hon. Justice Tumwesigye, Ag. JSC
From: Hon. Justice Mwondha, JSC
Date: 27/06/2018
### $RE:$
### CIVIL APPEAL NO. 02 OF 2018
#### Between
<table>
Hwan Sung Limited....................................
#### And
M and D Timber Merchants and Transporters <table>
Limited Respondent
Your Lordships,
Please find herewith attached my draft concurring Judgment of the above mentioned Appeal.
Gluce, Que Hon. Justice Mwondha JUSTICE OF THE SUPREME COURT
### THE REPUBLIC OF UGANDA
## IN THE SUPREME COURT OF UGANDA AT KAMPALA
Coram: - Mwangusya, Mwondha, Buteera JJSC, Nshimye, Tumwesigye AG. JJSC
### CIVIL APPEAL NO.02 OF 2018
### **BETWEEN**
HWAN SUNG LIMITED.................................... ......................................
### AND
M AND D TIMBER MERCHANTS AND TRANSPORTERS
LTD....................................
(Appeal against the decision of the Court of Appeal at Kampala before Owiny Dollo DCJ, Kavuma, Barishaki JJA in Civil Appeal No.30 of 2016)
### **JUDGMENT OF MWONDHA JSC**
I have had the benefit of reading in draft the Judgment of my learned brother, Hon. Justice Buteera JSC and I agree with his findings, reasoning, decision and orders proposed.
I would like to add that it is apparent from the pleadings and the brief facts that there are issues which can only be resolved after a full trial has been held.
Section 5 of the Limitation Act and Order 7 Rule 6 of the Civil Procedure Rules are technicalities which cannot override the clear provisions of the Constitution. Article $126(2)$ (e) is instructive. It states:-
### Substantive justice shall be administered without undue regard to technicalities.
The adjudication of cases both civil and criminal is subjected to the law which is the Supreme law of the land as above stated and any other law not inconsistent and or in contravention with the Constitution.
The subject matter being land, it is only fair and just that the file be remitted to High Court for hearing on its merits.
Dated at Kampala this.................................... 2018
# Muchelle<br>MWONDHA JUSTICE OF THE SUPREME COURT
## THE REPUBLIC OF UGANDA
## IN THE SUPREME COURT OF UGANDA AT KAMPALA
(CORAM: MWANGUSYA; MWONDHA; BUTEERA; II. S. C.; NSHIMYE; TUMWESIGYE; AG. JJ. S. C.)
## CIVIL APPEAL NO: 02 OF 2018
## **BETWEEN**
### HWAN SUNG LIMITED :::::::::::::::::::::::: APPELLANT
### AND
## M. AND D. TIMBER AND
TRANSPORT LIMITED ::::::::::::::::::::::::::::::::::::
[Appeal from the decision of the Court of Appeal at Kampala (Owiny Dollo, DCJ, Kavuma, Barishaki, JJA) in Civil Appeal No. 30 of 2016]
### JUDGMENT OF TUMWESIGYE, JSC.
I have had the benefit of reading in draft the judgment of my learned brother, Hon. Justice Richard Buteera, JSC and I agree with him that this appeal should be allowed with costs in this court and in the courts below.
I also agree with the orders he has proposed.
Dated at Kampala this. 2018 .dav of vesigve JUSTICE OF THE SUPREME COURT
## THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA **AT KAMPALA**
## (CORAM: MWANGUSYA, MWONDHA, BUTEERA JJ. S. C, TUMWESIGYE, NSHIMYE, AG. J. J. S. C.)
## CIVIL APPEAL NO.02 OF 2018
### BETWEEN
HWAN SUNG LIMITED::::::::::::::::::::::::::::::::::::
### AND
## M. AND D. TIMBER MERCHANTS AND <table> TRANSPORT LIMITED ::::::::::::::::::::::::::::::::::::
[Appeal against the decision of the Court of Appeal at Kampala before Owiny Dollo, DCJ, Kavuma, Barishaki, JJ. A. in civil appeal *No. 30 of 2016*
## JUDGMENT OF A. S. NSHIMYE, AG. JSC.
I have had the benefit of reading in draft the lead judgment of my learned Brother Hon Justice Richard Buteera JSC. I agree with the way he has addressed the issues, reasoning and conclusion that the appeal be allowed with costs here and in the courts below.
I also agree that, the file be sent back to the High Court for trial on its merits.
I would only add that the pivot point at which this appeal hinged, was whether the decision of High Court to strikeout the appellant's suit finally disposed of and determined the whole suit. If it did, then the appellant had an automatic right of appeal without recourse to seeking leave of
Court to Appeal. On a glance, the Civil Procedure Rules, Order 44, gives the impression that it exhausisefully deals with all types applications that end up in court orders. It is not the case.
Appellate courts ought to be careful and ascertain whether or not in a particular given case before court, what appears to be an ordinary order arising from an application to strike out a suit, is not actually a disguised final decree.
The lead judgment rightly quoted the opinion of Justice Mustafa in the case of South British Insce Co. Ltd v Muhamedali Taibji Ltd (1973) E. A. 210, which is binding. It is now settled that if an order has the characteristic and consequence of bringing a whole suit to finality, it is a decree within the meaning of section 2 (c) of the Civil Procedures Act and is therefore appealable as of right.
Dated at Kampala, this day ot 2018. AG. JUSTICE OF SUPREME COURT