Hwang Sung Limited v M & D Timber Merchants & Transporters Limited (Civil Appeal 2 of 2018) [2018] UGSC 91 (11 July 2018)

## 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