ISLAMIC UNIVERSITY IN UGANDA

FACULTY OF LAW

CIVIL PROCEDURE I READINGLIST

LL.B 1V 2018/2019

LEGISLATION/ LAW APPLICABLE

Principal Law

The Constitution of the Republic of Uganda 1995 as amended

Relevant Acts of Parliament

i. The Judicature Act Cap.13

ii. The Civil Procedure Act Cap 71

iii. The Magistrates Court Act Cap.16 as amended

iv. The Civil Procedure and Limitation (Miscellaneous provision) Act

(Cap.72)

v. The Government Proceedings Act (Cap.77)

vi. The Local Council Courts Act, 2006

vii. The Limitation Act (Cap 80)

viii. The Arbitration and Conciliation Act (Cap. 4)

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 ix. The Employment Act 2006

x. The Statutory Declarations Act (Cap.22)

xi. The Law Reform (Miscellaneous Provisions) Act Cap.79

xii. The Oaths Act Cap 19

xiii. Other relevant Acts to be cited and relied as and when required.

Relevant Rules and Subsidiary Legislation

i. The Civil Procedure Rules S.I 71-1

ii. The Judicature Mediation Rules 2013

iii. The Constitution Commercial Court Practice Directions 1996

iv. The Judicature (Court Fees and Deposits ) Rules

v. The Judicature (Supreme Court )Rules Directions 1996

vi. The Judicature (Court of Appeal) Rule Direction1996

vii. The Judicature (Habeas Corpus) Rules

viii. The Magistrates Courts (Magisterial Area) Instrument 2017

ix. The Government Proceedings( Civil Procedure ) Rules S.I 77-I

x. The Advocates Remuneration & Taxation of Costs Rules

xi. The Civil Procedure (Amendment) (Judicial Review) Rules 2009

xii. Other relevant Rules to be cited and relied as and when required.

xiii. Others to be referred to as and when relevant.

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RELEVANT TEXTS

i. Spry: Civil Procedure in East Africa Revised Edition 2008

ii. A commentary on Civil Procedure Act Cap 21 (Kenya) by Steve Ouma

2010

iii. Kiapi: Practice Manual Series; Civil Procedure

iv. Chataley& Rao: The Code Civil Procedure

v. Langn: Civil Procedure and Evidence in EAST Africa.

vi. Harwood : Odgers on Pleading and Practice

vii. Bullen & Leake: Precedents of Pleading.

viii. M. Ssekaana & S. N Ssekaana: Civil Procedure & Practice in Uganda

TOPIC 1 (S.A)

Introduction to the Law and Practice of Civil Procedure

To be considered; the law that regulates civil litigation/practice; sources of the

law of civil procedure, and the applicable principles; interpretation and scope of
the legal rules, procedural and substantive requirements, the approach
adopted by courts etc;

1.1 Applicability of the Civil Procedure Act & the Civil Procedure Rules.

1. Uganda Broadcasting Corporation versus Sinba (K) Ltd & Others CA Civ
Application No. 12/2014 (Ruling of Justice Kakuru; but matter is on
appeal to SC)

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 2. Beatrice Kobusingye Versus Phiona Nyakaana SCCA No 05./2004.

3. Nakabago Co-operative Society V Livingstone Kyanga [1992] III KALR 137

4. Re Kenshavlal Punja Shah (1955) 22 EACA 381

5. Oil Seeds (U) Ltd V AG CACA No.127/2003

6. Yeseri Waibi v Edisa Lisi Byandala 1972 HCB 28

1.2 Inherent Powers of Court

1. Dr. J.B Byamugisha versus NSSF Civ Ref. No. 19/2012.

2. Central Electricals International Ltd versus Prestige Investments Limited

HCMA No. 625/2011

3. Goodman Agencies Ltd & Anor. versus Highland Agriculture Export

Limited HCMA No.364/2012

4. Board of Governors, Kawempe Muslim School verus Hussein Kaskende

& others HCMA No. 637/2006

5. Oil Seeds (U) Ltd Versus Uganda Development Bank SCCA NO.09/2009

6. Ayub Suleman Versus Salim Kabambalo SCCA No. 32/1995

7. Standard Chartered Bank V Clouds 10 Ltd [1988-90] HCB 84

8. Adonia V Mutekanga (1970) EA 429,432

9. G.W Katakwandi V Biraro (1977) HCB

10. Rawal V Mombasa Hardware Ltd [1968] EA 392

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1.3 Applicability of Article 126 (2) (e) of the Constitution to Civil
Procedure & Practice

1. Proline Soccer Academy Vs. Lawrence Mulindwa & 4 Others HCMA No.
0459/2009

2. Uganda Crop Industries Ltd Vs. URA HCCS No. 05/2009

3. Francis W. Bwengye V Haki Bonera HCT-00-CV-CA No.033-2009

1.4 Limitations to Applicability of Article 126 (2) (e)

1. Dr. Kasirivu Atwooki & 4 others Vs. Bamurangye & Others [2009]
HCB 42

2. Nelson Sande Ndugo V EC HCT EP 0004/2006

3. Century Enterprises Limited V Green land Bank ( In Liquidation)

HCT-00-CC-CS-0877-2004

4. Tororo Cement Co. Ltd V Frokina International Ltd SCCA NO.2 OF

2001.

1.5 The Liberal Approach and Consideration of Rules of Procedure by

Courts.

1. Uganda Broadcasting Corporation versus Sinba (K) Ltd & Others CA

Civ Application No. 12/2014 (Ruling of Justice Kakuru; but matter is on
appeal to SC)

2. Elias Waziri versus Opportunity Bank (U) Ltd HCMA No. 599/2013

3. Kingstone Enterprises Limited & Others Versus Metropolitan

Properties Ltd HCMA No. 314/2012

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 4. Muhwezi Astone versus Irene Number One & Anor. HCT-05-CV-CA-
0066-2009

5. Banco Arabe Espanol versus Bank of Uganda SCCA No. 8/1998

1.6 Subject Matter of Adjudication of Civil Procedure

(Nature of disputes resolved through Civil Proceedings as opposed to other

disputes, consider disputes which are hypothetical, moot or academic or
non justiceable disputes)

1. Uganda Telecom Limited Versus Wand Telecom Limited HCCA No.

28/2015

2. Legal Brains Trust (LBT) Ltd versus Attorney General Ref. No. 10/2011
and Appeal No. 4 of 2012 (EACJ) (courts adjudicate over live disputes.

3. Mubangizi Julius Versus Uganda Baati CACA No.001/2011

4. Hon. Abdu Katuntu & Anon versus MIN & Others HCCS No. 248/2012

5. Human Rights Network for Journalists & another versus Uganda

Communications Commission & Others Miscellaneous Cause No. 219 of
2013

6. An Application For Judicial Review Between Julius Maganda -V- National

Resistance Movement High Court High Court Miscellaneous Application
No.154 of 2010

Recommended Texts

1. Read; A commentary on Civil Procedure Act Cap 21 (Kenya) by Steve

Ouma 2010

TOPIC 2 (S.H)
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2.0 Civil Litigation and Alternative Dispute Resolution;

To be considered; Nature of civil litigation, consequences, rationale

compared with other forms of resolution of civil disputes like; mediation,
arbitration, the modern trend and attitude of courts; etc.

1. W.H.R Wanyama V KCC & Anor. [2008] HCB 111

2.1. Arbitration (whether based on contract or statute)

1. (Read section 5 and 9 of Arbitration & Conciliation Act)

2. Eco Friendly Farming Limited versus Uganda Investment Authority

HCCS No. 604/2014

3. Rock Construction Versus Mohammed Hamid CACA No.

0051/2011(2015)

4. Babcon Uganda Ltd vs. Mbale Resort Hotel Limited CACA No. 87/2011
(2015)

5. Power and City Contractors Ltd versus LTL Projects (PVI) Ltd HCT-CV-
MA-0062/201 1

6. Yan Jian Uganda Company Ltd versus Siwa Builders & Engineers HCMA
No. 1147/2014 (2015)

7. NSSF versus Alcon International Ltd SCCA No.15/2009.

8. Heritage Oil & Gas Limited Vs. URA Civil Appeal No.14/20 1 1

9. Nobert Kahiire Vs. Richard Nsubuga HCMA No. 94/20 10

10. EADB V Ziwa Horticultural Exporters Ltd [1 997-2000] UCLR 247

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 11. Fulgencious Munghereza V Price Water House Coopers[1 997-
2000] UCLR 45\

2.2. Court Based Mediation, Evaluative Mediation and Consent

Judgments

1. Rules 2, 4 & 5 of the Judicature (Mediation) Rules SI 10/2013

2. Nakanyonyi Development Associations & Others versus Stanbic Bank

HCMA No. 611/2013

3. Babcon Uganda Limited versus Mbale Resort Hotel SCCA No. 6/20 16

4. Bokomo Uganda Ltd versus Rand Blair Civil Appeal No. 22/2011 (HC)

5. Betuco (U) Ltd & Anor. V Barclays Bank of Uganda Ltd HCT-00-CC-MA-
0507-2009

6. Stanbic Bank Ltd V Uganda Cross Ltd SCCA 4/2004

7. Betuco (U) Ltd & Anor. V Barclays Bank of Uganda Ltd HCT-00-CC-MA-
0243-2009

8. Peter Muliira V Mitchell Coils [1 997-2000) UCLR 118

9. British American Tobacco versus Sedrach Mwijakubi SCCA No. 01/2012

Recommended

1. The Judicature (Mediation) Rules S1 10/ 2013

2. Article; Court Based ADR; By the Hon. Mr. Justice Geoffrey W.M. Kiryabwire

3. Read; Arbitration and Conciliation Act Cap 4

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 4. ADR, the experience of the commercial court by the Hon. Justice James
Ogoola 2004

5. The ADR Framework in Uganda by Jimmy Muyanja 2003

TOIPC 3 (S.A)

a. The Structure & Competence of Courts (Forum for Determination

of Civil Actions;

To be considered; Jurisdiction (Both Geographical and Pecuniary, where

applicable) of the Local Council Courts, Magistrates Courts, the High Court
(including the divisions of the High Court), Registrars of the High Court, other
courts and Tribunals.

 The Magistrates Courts Act Cap as amended;

 See; s.11 -15 Civil Procedure Act;

 Practice Direction No.1 of 2002; Judicial Powers of Registrars of the High

Court;

 The Magistrate’s Courts (Magisterial Areas) Instrument Jan 2017

 See; Local Council Courts Act 2006

 See; Small Claims Courts Rules

b. Establishment, Composition and Competence of Courts

1. Davis Wesley Tusingwire Versus Attorney General; Constitutional Appeal

No.04/2016(2017)

2. Davis Wesley Tusingwire Versus AG Constitutional Petition No.

02/2013(Dissenting Judgment of Justice Kavuma Ag. DCJ)

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 3. Baku Raphael Obudra and Obiga Kania v AG SC court. App No. 1/2005
Mulenga JSC

4. Uganda Law Society & Anor. Vs. AG [2009] HCB Vol.2 13

5. Erias Lukwago Lord Mayor KCCA Versus AG & KCCA Civil Application
No. 06/2014 (SC)

6. Mohamed Hamid vs. Roko Constructions Ltd Civil Appeal No.1 of 2013

7. ,Komakech Geoffrey & Anor vs. Rose Akol Okullo & 2 Ors Civil Appeal
No. 21/201

c. Meaning of Jurisdiction of Courts

1. Uganda Revenue Authoty versus M/s Robo Enterprises (U) Ltd V SCCA
No. 12/2004 (2017)

2. Among A. Anita Versus AG of Uganda & Anor Reference No.6/2012

(EACJ)

3. Benjamin Ogunyo Andama versus Benjamin Ondola HCMA No. 11/2013

4. Stephen Mubiru Versus Annet Mubiru HCC Rev. No. 04/2012

5. Mukasa V Muwanga HCMA No, 31/1 994

6. Alamanzani Zziwa V Angello Kintu HCMA No.37/1993

d. Sources of Jurisdiction

1. Ahmed Kawooya Kaugu versus Bangu Aggrey Fred and Anor [2007] HCB
35 SC

2. Raphael Baku & Anor. V AG SC Const. Appeal No.1 of 2005

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 3. East and Southern Africa Trade V Hassan Bassajjabalaba & Others HCT-
00-CC-CS-0512-2006

e. Jurisdiction and Pleadings

1. Alexander Mutongole V NYTIL CA No. 94 of 1968(1971) HCB 114

2. Bisuti V Busoga District Admin HCCS No. 83/1969

f. Pecuniary Jurisdiction of Magistrates Courts and Local Council

Courts.

1. National Medical Stores Vs. Penjuines Ltd HCT-00-CC-CA-29-2010

2. Maxwell Mulesa Onyait versus Michael Serumu & Anor. HCMA No.
87/2006

3. Stephen Mubiru Versus Annet Mubiru HCC Rev. No. 04/20 12

4. Munobwa Muhammed Versus Uganda Muslim Supreme Council

5. Joseph Kalingamire Vs. Godfrey Mugulusi [2003] KALR 408

6. Joweria Nalukwago V Admin, Gen. HCCS No.102/1995 [1997] KALR 139

7. Abbey Semakula V Eldad Rubarenzya [1996111 KALR 22

8. Mangalita Namirembe V Kalamatu Tebukola [1995] IIIKALR 84

g. Geographical Jurisdiction of Magistrates Courts and Local Council

Courts.

1. Kasoma Fred iersus Sembatya CACA No. 78/2011

2. Lugazi Progressive School & Anor. Vs. Serunjogi & Others [2001-2005]
Vol. 2 121

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 3. Davis Wesley Tusingwire versus AG Constitutional Petition No.02/1013
(Judgment of Justice Kavuma Ag. DCJ on subject matter jurisdiction)

h. Practice & Choice of Forum for Filing of suits.

1. Francis Ouma Mubido versus Oakwod Investments Limited Labour

Dispute No. 56312014

2. Uganda Braodcasting Corporation versus Kamukama HC Misc.

Application No. 638/2014

3. P. Munyagwa vs. Lucy Kamujanduzi [1972] EA, 332 (U). [1972] HCB 117.

4. Francis sb Mwijage V Boniface sb Kabalemeza Civil Appeal 84-68(HCD)

341

i. Jurisdiction of the High Court

The Jurisdiction of the High Court compared to other relevant fora; Tax
Appeals Tribunal, Industrial Court, etc;

Read:

i. Article 139 (1) Constitution, S. 14 Judicature Act

ii. The Arbitration & Conciliation Act Cap 4

iii. The Employment Act 2006 (Section 93)

iv. Order 50 of the Civil Procedures Rules (The Jurisdiction of Registrars of

the High court)

v. Read Judicial Powers of Registrars (Practice Direction No. No.1 of

2002

i. The unlimited original Jurisdiction of the High Court

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 1. Babcon Uganda Limited versus Mbale Resort Hotel SCCA No. 6/2016
(2017)

2. Kituuma Magala versus DFCU Bank Ltd SCCA No 09/2010.

3. Naku & 2 Others Versus Commissioner Land Registration HCCA No.

064/2010

4. Davis Wesley Tusingwire Versus AG Constitutional Petition No.02/2013

5. Uganda Projects Implementation & Management Centre Vs. URA SCCA

No.02/2009

6. Testimony Motors Ltd Versus The Commissioner Customs URA HCCS

No.004/2011 (OS)

7. In the Matter of Odoke (Infant) [2009]HCB VoL2 at page 22

ii. Unlimited Original Jurisdiction of the High Court in Employment

Disputes

1. Ozuu Brothers Enterprises versus Ayikoru HCCR No. 000212016

2. Francis Ouma Mubido versus Oakwod Investments Limited Labour

Dispute No. 563/2014

3. Concern Worldwide versus Mukasa Kugonza Civ Revn No. 1/2013

4. 201 Former Employees of G4S Vs. G4S Secuñty Uganda Ltd Civil Appeal
No. 18/2010

5. Hilda Musinguzi Vs. Stanbic Bank (U) Ltd HCCS No. 124/2008

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 6. See; section 93 Employment Act 2006 and the Jurisdiction of the
Industrial Court

7. Action Aid Uganda versus David Tibekanga Labour Dispute LDA No. 5
/20 14

iii. Unlimited Original Jurisdiction of the High Court in Tax Disputes

1. Uganda Revenue Authority versus M/s Robo Enterprises (U) Ltd V SCCA
No. 12/2004 (2017)

2. Meera Investments Ltd Versus Commissioner General of URA SOCA

No.14/2012

3. Uganda Projects Implementation & Management Centre Vs. URA SCCA

No.02/2009

4. M/S Robo Enterprises (U) Ltd V Commissioner General of Uganda

Revenue Authority CACA No.55 of 2003

iv. Unlimited Original Jurisdiction of the High Court in Disputes

Subject to Arbitration Clauses

1. Power and City Contractors Ltd versus LTL Projects (PVI) Ltd HCT-CV-
MA-0062/201 1

2. Meera Investments Ltd Versus Commissioner General of URA SCCA

No.14/2012

3. Concorp International Ltd Versus Eastern & Southern Trade &

Development Bank SCCA No. 11/ 2009 (Okello JSC)

4. AG & UCB V Westmont [1 997-2000] UCLR 191

5. EADB V Ziwa Horticultural Exporters Ltd [1 997-2000) UCLR 247

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 6. Pheobe Mugabi V Print Pak (U) Ltd (1994) 1 KALR 29

7. Kayondo V The Cooperative Bank Ltd CA No. 19/9 1

8. Fulgencious Munghereza V Price Water House Coopers[1 997-2000]

UCLR 45

j. Territorial Jurisdiction of the High Court

A6 be considered; Jurisdiction of the High Court in matters involving an

international element, e.g disputes arising out of transactions involving
diplomatic missions, cross border disputes etc

i. Jurisdiction of the High Court in Cross-Border Transactions

1. Kasoma Fred versus Sembatya CACA No. 78/2011

2. Nanam Aviation Ltd Versus Sun Air Ltd & Anor HCCS No. 309/2008

3. Ssebagala & Sons Electric Centre Ltd V Kenya National Shipping Lines
Ltd HCCS No. 431 of 1999 [1997-2001] UCLR 388.

ii. Jurisdiction of the High Court in Transactions with specific

provisions on Jurisdiction

1. Huadar Guangdong Chinese Co. Ltd versus Damco Logistics (U) Ltd 1-
ICCS No. 4& 5 of 2012

2. Rapid Shipping & Freight (U) Ltd & Anor. Versus Copy Lines Ltd HCCS
No.216/2012

3. Trastrac Ltd versus Damco Logistics (U) Ltd HCMA No. 394/2010

4. Uganda Telecom Ltd Versus Rodrigo Chaco HCMA No. 337/2008

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 5. East and Southern Africa Trade V Hassan Bassajjabalaba & Others HCY-
00-CC-CS-0512-2006

6. Larco Concrete Products Ltd V Transair Ltd (1 988-90) HCB 80

iii. Jurisdiction of the High Court in Transactions where Defendants are

subject to Diplomatic Immunity

1. Wokuri v Kassam [2012] EWHC 105 (Ch)

2. Concorp International Ltd Versus Eastern & Southern Trade &

Development Bank SCCA No. 11? 2009

3. Eddie Rodrigues V The British High Commission SCCA NO.8/87

4. Ndibarekera V The United States of America HCCS NO.786/97.

5. Somali Democratic Republic v Treon SCCA No.6 of 1998

6. Manzur Alam V The Embassy of Saudi Arabia HCCS NO.402 OF 2002

iv. Jurisdiction of the High Court in case of Conflict btn International

law & Municipal Law

1. Concorp International Ltd Versus Eastern & Southern Trade &

Development Bank SCCA No. 1112009

2. Among A. Anita Versus AG of Uganda & Anor Reference No.6/2012

(EACJ)

3. Testimony Motors Ltd Versus The Commissioner Customs URA HCCS

No.004/2011 (OS)

k. Objections to Jurisdiction, Procedure & Practice

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To be considered; when to object to jurisdiction, procedure,
consequences, considerations etc.

1. Power and City Contractors Ltd versus [IL Projects (PVI) Ltd HCT-CV-MA-
0062/201 1

2. Huadar Guangdong Chinese Co. Ltd Vs. Damco Logistics (U) Limited
HCCS No. 4 & 5/2012

3. Modern Holdings (EA) Ltd versus Kenya Ports Authority Ref. No.1 /2008
EACJ

4. Mukisa Biscuits Manufacturing Co. Ltd versus West End Distributors

Ltd [1 969] EA 696 at 700

5. Mark Graves V Balton (U) HCMA No.158 of 2008

6. AG & UCB V Westmont Land (Asia) Bhd & Others [1 997-2001] UCLR
191

7. Ssebagala & Sons Electric Centre Ltd V Kenya National Shipping Lines
Ltd HCCS No. 431 of 1999 [1 997-20011 UCLR 388.

l. Transfer of suits

To be Considered; the power to transfer, when exercisable, the

grounds/relevant considerations, procedure etc

S. 18 CPA

1. Petronella Omal Okoth versus Godfrey Obbo Odhiambo & Anor. HCMA
No. 0174-2003

2. Wislon Osuna Otwani Versus Apollo Yen Ofwono HCT-04-CV-MA-77-

2012
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 3. Frednck Kato versus Ann Njoki HCCS No. 10/2007

4. Matayo K. Kaboha V Abibu Bin Abdalla (1942) 6 ULR 121 (U).

5. David Kambugu V Zikalenga Misc. AppI 36/1 995[1 995] KALR 48;
Okello J

6. Kagenyi V Musiramo [1968] EA 43(U).

m. Effect of proceeding before a court with jurisdiction

Distinction between a wrong court and court that has no jurisdiction,

remedy where suit is filed in wrong court or one that has no jurisdiction,
consequences etc.

1. Byanyima Winnie Vs. Ngoma Ngime HOC Revision No. 0009/2001

2. Athanasius Kivumbi V Hon Emmanuel Pinto Constitutional Petition No.

5 of 1997

3. Desai V Warsaw (1967) EA 351

4. Sergeant Kalemera Frank V Uganda SC Cr. App No.19/94

5. Makula International V Cardinal Nsubuga [1982] HCB;

6. Mubiru V Kayiwa[ 1974] HCB

7. Kagenyi V Musiramo [1968] EA 43(U).

TOPIC 4 (S.H)

1.0 Institution of suits:

Consider the various modes of institution of suits and the relevant

considerations. 0.4 r 1 0.36, 0.37, 0. 52 CPRs; etc:

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1.1 Suits to be commenced in manner set out in Rules (S. 19 CPA)

1. Matco Stores Limited Versus Grace Muhwezi HCCS No. 90/91 of 2011

2. Jacob Mutabaazi Versus The Seventh Day Adventist Church HCCS No.
54/2009

3. Ochieng Peter Patrick Vs. Mayende Stephen Dede & EC EP No. 15/2011

4. Meera Investments Ltd V Jeshang Popat Shah CACA No. 56 of 2003

1.2 Definition of a Suit; See s. 2 of the CPA.

1. Matco Stores Limited Versus Grace Muhwezi HCCS No. 90/91 of 2011

2. Alayo versus Ogwok CS (OS) No. 10/2013

3. Mansion House ltd Vs Wilkinson (1954) 22 EACA 98

4. Nakitto & Brothers Ltd V Katumba [1983] HCB 70;

4.3.1 Preliminary Steps and Relevant Considerations before filing Suits

4.3.2 Possibility of concurrence of Civil and Criminal Proceedings and

relevance of Criminal prosecution/judgment in civil proceedings;

1. Esso Standard (U) Ltd V Mike Nabudere HC No. 594/1990.

2. Erinesti Ochieng V Obedo Nyambito Civil Appeal No. 92 of 1973

4.3.3 Notice of Intention to Sue

Notice of intention to sue and its distinction from a statutory notice;

consequences of not serving a notice of intention to sue or statutory notice and
exceptions etc;

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 1. Wambugu V Public Service Commission [1972] EA 29.

2. Read; R.39 Advocates Remuneration and Taxation of Costs Rules

3. Read; s.22 of the Administrator General’s Act on one month’s notice of

intended suit

4.3.4 Notice of Dishonour Cum Notice of Intention to Sue

1. Simba Motors Ltd V John Sentongo & Anor HCT-00-CC-CS-0733-2000

2. Obdiashobya V DECU Bank Ltd HCT-00-CC-CS-742-2004

4.3.5 S3ory Notice, Form and Rationale

(See Suits against Government, Scheduled Corporations & Local Governments:

1. See The Civil Procedure & Limitation (Miscellaneous Provisions) Act Cap
72

2. Uganda Development Bank Versus ABA Trade International Ltd, URA &
Others HCMA No, 567/2010

3. Greenwatch versus Uganda Wild Life Authority HCMA No.92/2004

4. Dr. Rwanyarare & Others V AG HCMA No.85/i 993

5. Rwakasoro Vs Attorney General HCCS No. 711 of 1977.

4.3.5.1 Requireent to Serve a Statutory Notice

1. Meera Investments Ltd Versus Commissioner General of URA SCCA

No.14/2012

2. Uganda Development Bank Versus ABA Trade International Ltd, URA &
Others HCMA No. 567/2010

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 3. Historic Resources Conservation Initiatives & Ors Vs. AG HCCS No.
53/2011

4. Platform for Labour Action and Anti-Corruption Coalition Uganda Vs.

NSSF HCCS No. 223/2008

4.3.5.2 Mandatory or Directory Requirement

1. Kabandize&-OThers versus KCCA CACA No. 28/2011 (march 2014)

2. Christopher Ssozi Vs. AG HCMC No. 117/2004

3. Uganda Development Bank Versus ABA Trade International Ltd, URA &
Others HCMA No. 567/2010

4. Stanbic Bank (U) Ltd Versus Comm Gen. URA HCMA No. 0042/2010

5. Nakawa Naguru Residents Association Versus Attorney General & ULC

HCCS No. 146/2011

6. Greenwatch versjis Uganda Wild Life Authority HCMA No.92/2004 ê

4.3.4.3

4.3.5.3 Requirement to plead and Attach Statutory Notice

1. Yoweri BãrtIuhiga & 5 others Vs. Christine Mugara & 2 others[ 2009)
HCB Vol2 49

2. Assimwe Kanyaruju Vs. Hon. Grace Namara HCCS No. 198/2010

3. Katwe Butego Division LGC V Masaka Municipal Council MHCCS No.

0011/2005

4. M/S Cheap Super Quality & Fancy Stores Ltd & Another V UCB HCCS
No. 9/1992 [1994] IV KALR 18

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 5. Francis Waniala V Bugisu District Administration [1982] HCB 128

6. NIC V Kafe[t974] EA 477 at 480

4.3.5.4 Requirement..t’Raise Want of Statutory Notice at Preliminary

stage

1. Apollonia Nakirya & Anor V Sekabira CACA No.38 of 2003

2. Yoweri Bamuhiga & 5 others Vs. Christine Mugara & 2 others[ 2009]
HCB Vo12 49

4.3.5.5 Who to er e&Proof of Service of Statutory Notice

5. 1, Katwe Butegotivision LGC V Masaka Municipal Council MHCCS No.

0011/2005

3. Yoweri Bamuhiga & 5 others Vs. Christine Mugara & 2 others[ 2009]
HCB Vol2 49

4.3.4.6 Effect of 9iiService of a Statutory Notice

1. Kabandize & Others versus KCCA CACA No. 28/2011 (March 2014)

2. Uganda Development Bank Versus ABA Trade International Ltd, URA &
Others HCMA No. 567/2010

3. Gulu Municipal Council V Nyeko Gabriel and Othrs HCCS No. 77/1996
[1997] IKALR 9; Pamba Vs Coffee Marketing Board HCCS No. 186 of
1975

4. Kampala City Council V Nuluyati [1974] EA 400

5. Kateme Ltd V Management Training & Advisory Center[1 998j 11 KALR

18;

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4.3.4.7 Exceptions

1. Meera Investments Ltd Versus Commissioner General of URA SCCA

No.14/2012

2. Nakawa Naguru Residents Association Versus Attorney General & ULC

HCCS No. 146/2011

3. John Oketcho Versus AG HCMC 124/2009

4. Green watch versus Uganda Wild Life Authority HCMA No.92/2004

5. TEAN V A-G /NEMA Misc. Application No. 29 of 2001,

6. Sarah Kafrika Mbonabukya V N PART Tribunal Case No. 24 of 1999

7. Dr. Rwanyarare & Othrs V AG HCMA No.85/i 993

TOPIC 5 (S.H)

5.1 Payment of Court Fees

The requirement for payment of court fees, which court documents attract fees,
how are the fees determined, when and where to pay, evidence of payment,
effect of non payment, payment of insufficient fees, late payment, remedy in
case of non payment or late payment; the practice of the courts;

1. Read The Judicature (Court Fees & Deposit Rules (r. 6)

2. Order9rl6andO.7r.11(c)

3. Read; Land Litigation. Experiences and Best Practices from the Land
Division 2012 by Hon. Justice Joseph Murangira pages 10-15

5.2 Assessment, Payment, Time of Payment of Court Fees and the Fling
Process
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 1. Pinnacle Projects Limited versus Business in Motion Consultants Ltd
(Misc. Appi. No 362 Of 2010)

2. Kamba Sale versus Hon. Jennit[er Namuyangu EPA No0027/2011

3. Mukoni Collins versus Electoral Commission & Anor HCMA o. 055/2011

4. Noah Bukenya V Global Credit Management Ltd HCCMA No.254 of 2009

5. UNTA Exports ltd —v Commissioner of Customs (1970) EA43(U)

6. Musango v Musango (1979) 226

7. Yese Ruzambina V Kimbowa Builders & Construction Ltd (1976) HCB

278

8. Banco Arabe Espanol-v Bank of Uganda (CACA No.42 of 1998

5.3 Distinction Btn Court Fees & Security for Costs

1. Amrit Goyal V Harichand Goyal and Others CAC Application No.

109/2004

5.4 Effect of Non Payment of Court Fees

1. Central Electricals International Ltd versus Prestige Investments Limited

HCMA No. 625/2011

2. Kamba Sale versus Hon. Jenniffer Namuyangu EPA No0027/2011

3. Betuco (U) Ltd & Anor. V Barclays Bank of Uganda Ltd HCT-00-CC-MA-
0243-2009

4. Ndaula Ronald V Hajji Nadduli Abdul [2007] HCB 9

6. Lawrence Muwariga V Steven Kyeyune SCCA No. 12 of 2001

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5.4 Remedy for Non Payment, Less payment or Late Payment of Court
Fees

1. Standard Chatered Bank Ltd versus Mwesigwa Geoffrey Phillip HCMA

477/2012

2. Electoral Commission Versus Betty Nambooze [2007] FICB 52

3. Yese Ruzambina V Kimbowa Builders & Construction Ltd (1976) HCB

278

4. Byabazaire v Mukwano Industries ltd [2002] 2 EA;

6. Katuramu v Maliya (1992-93) HCBI61

a. The process of Filing Suits

1. Okot Ayere Olwedo Justin vs. AG HCCS No. 381/2005

2. W.H.R Wanyama V KCC & Anor. [2008] HCB 111

3. Pinnacle Projects Limited versus Business in Motion Consultants Ltd

(Misc. Appl. No 362 of 2010)

4. Athanasius Kivumbi V Hon Emmanuel Pinto Constitutional Petition No.

5 of 1997 (Read; Land

Litigation. Experiences and Best Practices from the Land Division 2012
by Hon. Justice Joseph Murangira pages 10-15)

TOPIC 6-(SA)

6.1 Various Modes of Commencement of Suits

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The relevant considerations before adopting a particular mode, the
relevant procedure and documents and the relevant legal principles.

 Aloyo Versus Ogwok HCCS (OS) No.10/2013

 Testimony Motors Ltd Versus The Commissioner Customs URA HCCS

No.004/2011 (OS)

 Meera Investments Ltd V Jeshang Popat Shah CACA No. 56 of 2003

6.2 Ordinary Plaint and Specially endorsed Summary Plaint

1. Post Bank Uganda Limited verus Abdul Ssozi SCCA No. 08/2015(2017)

2. Abdul Ssozi versus Post Bank Uganda Limited CACA No. 12/2010 (2015)

3. Solomon Baganja & Anor. Versus Henley Property Developers Ltd HCCS
No. 47/2012

4. Jacob Mutabaazi Versus The Seventh Day Adventist Church HCCS No.
54/2009

5. Mayanja Bosco versus Kasikururu Lois Okumu OS No.5/2008

6. Testimony Motors Versus Commissioner Customs URAC1vII Suit No 004

OF 2011 (0

7. Hannington Wasswa &Anor. Versus Maa Onyango Ochola & Others.

SCCA No.2211993;

8. Matco Stores Ltd & Others versus Grace Muhwezi & Anor. HCCS No. 90
&91/2001

9. Sembuule Investments Ltd Versus Uganda Baati Ltd HCMA No.

664/2009

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 10. Kingstone Enterprises Limited & Others Versus Metropolitan
Properties Ltd HCMA No, 314/2012

11. Shelter Ltd V Anastasia Nakkazi Misc. App.1 15/2007

12. Busingye & Co. Ltd versus Muye HCMA 87/2011

13. Pinnacle Projects Limited versus Business in Motion Consultants

Ltd (Misc. Appi. No 362 Of 2010)

6.3 Originating Summons:

Meaning, circumstances of applicability, the law and legal principles for

applicability, the practice and documents. 0. 37 CPR;

Circumstances under which OS is Applicable

1. Zalwango Eliverson &Anor Versus Dorothy Walusimbi &Anor. HC OS No.

03/2013

2. Testimony Motors Ltd Versus The Commissioner Customs URA HCCS

No.004/2011 (OS)

3. Sentongo Harriet versus Esther Gloria Namusisi OS No.22/2009

4. Rock Petroleum (U) Ltd Vs. URA[2009] HCB Vol 2 at 29

5. Tororo Steel Works Ltd V Betty Akikoth HCT OS 000 1/2008

6. Yesero Mugenyi Vs Registrar of the High court & Ors. [1977] HCB 80;

7. Official Receiver V Sudhev [1970] EA 243

8. E V E [1970] 604;

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6.4 Circumstances where Originating Summons is not Suitable Procedure

1. Were & Anor versus Administrator General HCT-04-CV-05-001-201 5

2. Janet Ntanya Versus Saida Ssebaduka & Others HC OS No. 020/2009

3. Lubulwa Francis Versus Harriet Lubwama HO OS No. 011/2009

4. Vincent Kawunde t/a Oscar Associates V Kato HCOS No. 0004 of 2007

5. R. Hajji Vs Sulaiman Lule:

6. Patrick Rwekibira V Muwagibu Kamya[1 972] 2 ULR 166

7. Nakabugo Vs Francis Drake Serunjoji [19811 HCB 58:

8. Joseph Bayego V Chief Registrar of Titles

6.5 Originating Summons, Citation of relevant Law and Supporting

Affidavit

1. Patrick Rwekibira V Muwagibu Kamya [1972] 2 ULR 166; Saed J

2. Kawooya V Naava [1975] HCB.

3. WW Kaggwa & others V Yowana Kiwanuka [1 993]1 11 KALR 77

6.6 Procedure and Practice of Originating Summons

1. Mayanja Qosco Versus Kasikururu Louis Okumu & Othrs HO OS.

No.5/2008

6.7 Notice of Motion: 0 52 CPR:

Meaning, circumstances of applicability, the law and legal principles for

applicability, the practice and documents

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Form of notice of motion

1. Goodman Agencies Limited versus AG & Anor. Constitutional Appi No.

01/2012 (SC)

2. Dairy Corporation Versus Opio [2009] HCB

3. Lyakiya Vs Attorney General

4. Joy Kaingana V Dabou Boubou [1986] HCB 59

5. Kaur V City Auction Mart[1 967] EA 108

7. Nangibhai V Standard Bank Ltd [1968] EA 670

6.7 Notice of Motion to Contain Grounds

1. Global Capital Save 2004 Ltd & Anor. Versus Alice Okirol HCMA No.
485/ 2012

2. Horizon Coaches Limited Versus Edward Rurangaranga & Anor. [2010)1

EA 77

3. Development Finance Co of Uganda Ltd V Stanbic Sank Ltd & Anor.

HCMA No. 88 of 1999

4. Kafeero Kifomusana Vs Mugambe Joseph HOT EP Application No... .

2011

5. Mugarula Mukiibi V Colline Hotel Ltd [1984] HCB 35

6.8 Notice of Motion & Supporting affidavits

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 1. Serefaco Consultants Ltd versus Euro Consult & Anor CACA No.
16/2007

2. Global Capital Save 2004 Ltd & Anor. Versus Alice Okirol HCMA No.
485/ 2012

3. Ready Agro Suppliers Ltd & Othrs versus Uganda Development Bank Ltd
HCMA No. 0379/2005

4. Development Finance Co of Uganda Ltd V Stanbic Sank Ltd & Anor.

HCMA No. 88 of 1999.

5. Energo Projekt V Brigadier Kasirye Gwanga & Anor. HCMA No. 558/2009

6. Eng. Katwiremu V Mushemeza Elijah [1997] II KALR 66

7. Joy Kaingana V Dabou Boubou [1986] HCB 59;

8. Odongkara V Kamanda [1968] EA 210(U)

9. Notay Engineering Industries V Superior Construction & Engineering Ltd

HOGS No. 702 of 1989,

10. Castelino V Leo Rodrigues [1972] EA 233

11. Jetha Brothers Ltd V Mbarara Municipal Council & othrs HCMA
No.31 of 2004

6.9 Notice of Motion and Applicable law.

1. DFCU Leasing Co Ltd V Nasolo Faridah HOT MA 0074/2007

2. Kibuuka Musoke V Tour & Travel Centre Limited HCMA No.603/2008

3. Intraship U Ltd V GN Combined (U) ltd (1994) VI KALR 42

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 4. Peragio Munyangira V Andrew Mutayitwako HCMA No.37 of 1993[19931
V KALR 36

5. Hon. MR. Justice Remmy Kasule V Jack Sabiiti & 2 Others HCCS No,
230 of 2006

6. Alcon International V Kasirye Byaruhanga & Co. Advocates

{1995}IIIKALR 91

7. Saggu V Road Master Cycles (U) Ltd CAC No. 46/2000

6.10 Notice of Motion and Summary of Evidence (0.6 r.2; CPR)

1. Kenfreight (U) v Henry Sebunya HCMA No. 0353 of 1998

2. Sule Pharmacy Ltd V The Registered Trustees of the Khoja Shia Hana
Shari Jamat HCMISC. APPL 147/1 999.

3. Hon. MR. Justice Remmy Kasule Vs. Jack Sabiiti HCCS No, 230/2005

4. DFCU Leasing Co Ltd V Nasolo Faridah HCT MA 0074/2000

5. Rajab Kyangwa V Pallisa Town Council & Anor. HC Misc. AppI No.
19/2000

6. Musoke Lwanga Sanyu V Yakobo Nate Mayanja [1997] II KALR 1 SC

7. Jetha Brothers Ltd V Mbarara Municipal Council & othrs HCMA No.3 1
of 2004

6.11 Chamber Summons:

See some of the requirements for valid Notice of Motion

1. Silver Springs Limited Versus UMEME Ltd HCMA No. 291/2013

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 2. DFCU Leasing Co Ltd V Nasolo Faridah HCT MA 0074/2000

3. Kafeero Kifomusana Vs Mugambe Joseph HCT EP Application No... .2011

4. Francis W. Bwengye V Haki Bonera HCT-00-C V-CA No.033-2009

6.12 Effect of Wrongly Proceeding by Notice of Motion or Chamber

Summons

1. Silver Springs Limited Versus UMEME Ltd HCMA No. 291/2013

2. Saggu versus Road Master Cycles (U) Ltd CACA No.46/2000

3. All Sisters Company Ltd Vs. Guangzhou Tiger Head Battery Group
Company Ltd HCMA No. 307/2011

4. Uganda Crop Industries Ltd Vs. URA HCCS No. 05/2009

5. Francis W. Bwengye V Haki Bonera HCT-00-C V-CA No.033-2009

6. Kibuuka Musoke V Tour & Travel Centre Limited HCMA No.603/2008

7. Kibuuka Musoke AS V Travobase Center Ltd HCMA No.308/2008

8. Nasanga V Nanyonga [1977] HCB 319

6.13 Suits by Petitions

Dr. James Rwanyararee & Anor V AG Constitutional Appeal No, 1 of 1999

Nelson Sande Ndugo V EC HCT -01-CV-EP 0004/2006

Re Edith Nassaazi Adoption Cause No. 6 of 1996

6.14 Suits by Other modes;

a) Memorandum of claim in the industrial court

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 b) Complaint before the Labour Officer

c) Statement of claim, leffer

1. LDC V Edward Mugalu & Anor. [1990-91] KALR 103

2. Major Roland Kakooza Mutale Versus AG & IGG [2001-20051 HCB 110

3. Section 39(2) Judicature Act.

4. Prof. Oloka Onyango and Others and Amama Mbabazi, Yoweri Museveni
and EC Supreme court 2016

TOPIC 7 (SH)

Appearance of Parties & Agents

Physical and legal appearance, authorized agents, implications and

consequences

7.1 Appearance through Filing Appropriate Response

1. Opa Pharmacy Vs Howse SMC George(1972) ULR 115:

2. AG & UCB versus Westmont (supra)

7.2 Appearance by Party

1. Harriet Kizito v Ggoloba Godfrey CA No. 65/2005.

2. Kyobe Ssenyange Vs Naks Ltd (1980) HCB 31

3. Sekyaya Vs Sebuguli

7.3 Appearance by Party’s Counsel

1. Rule 2 & 3 of the Advocates (Professional Conduct) Regulations SI 267-2

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 2. AG & Peter Nyombi versus Uganda Law Society HCMA No. 321/2013

3. Sinba (K) Limited & 4 Others versus Uganda Broadcasting Corporation

Civil Application No. 05/2014

4. Shell (U) Ltd & Others versus Muwema & Mugerwa Advocates SCCA No.
02/20 ‘13

5. Kituuma Magala & Co. Advocates versus Celtel (U) Ltd [2001 -2005] HCB
Vol.3 at 72

6. Kabale Housing Estate Tenants Limited versus Kabale Municipal Local

Government Council Civil Application No. 15/2013

7. Harriet Kizito v Ggoloba Godfrey CA No. 6512005.

8. Handoni Daniel V Yolamu Egondi CACA No.67 of 2003

9. Sebunya Vs Attorney General

10. Kawooya Vs Naava:[1 975] HCB 314

11. Beliram Parima & Co-v-Saikind (1954)27 ULR28

7.4 Appearance by a Party’s Authorized Agent

1. Co-operative Bank in Liquidation Vs Kashaija N. Imelda and Anor. HC

OS No.1 2011.

2. J.B Mpanga V Dr. Nkamuhayo Rwacumika HCC Application No.

019/2009

3. Ayigiyugu & Co Advocates-v-Muteteri (1 988-90) HCB 161

7.5 Manner of Appearance:

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 1. Stop & See (U) Ltd Versus Tropical Africa Bank Limited HCMA No.
333/2010

2. Mark Graves V Balton (U) HCMA No.158 of 2008

3. Bukenya Vs Attorney General (Supra).

4. Twiga Chemical Industries Ltd V Viola Bamusedde CACA No. 912002

5. Silas Bitaitana V Emmanuel Kananura CACA No.47/1976

6. AG & UCB V Westmont Land (Asia) Bhd & Othrs. [1 997-20001 UCLR
191

7.6 Extension of Time for entering Appearance

1. Elias Waziri & 2 Others Vs. Opportunity Bank (U) Ltd HCMA No.
599/2013 (HC)

2. Robert Opio & Anor V Edward Kabugo Sentongo HCMA No.166-2002

3. Godfrey Magezi & Brain Mbazira V Sudhir Rupaleria SCCAPP 10/2002.

4. Credit Finance Co Ltd V Makerere Properties SCC AppI No.1 of 2001.

7.7 Effect of Failure to enter appearance

1. AG & UCB V Westmont Land (Asia) Bhd & Othrs. [1997-2000] UCLR 191

2. Ssetuba C. Misairi versus the Registrar of Titles HCMA No. 55/2011

3. Dembe Trading Enterprises Ltd versus Uganda Confidential Ltd HCCS

No. 0612/2006

4. Valery Alia versus Alionzi John (supra)

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35
 5. Agasa Mangi v AG HCS No. 95/2002

6. Agadi DidiV James Namakaso HCCS 180/1989

7. Photofocus Ltd Mulenga Joseph [1996 IV KALR 102

TOPIC 8 (S.A)

1SSUE AND SERVICE OF SUMMONS:

Types of summons, who issues summons, relevancy, the process of service in

and outside jurisdiction, proof of service, effect of ineffective service etc (0.5,
29, 3ICPR and the Government Proceedings Rules)

8.1 Types of summons:

Ordinary summons, Summons in a summary suit on Plaint, Chamber

summons, Originating summons, Witness

Summons etc, Hearing Notices

1. Mugume & Anor. V Akankwasa [2008] HCB 159

2. Dairy Corporation VOplo [2001-2005] HCB 113

3. Edison Kanyabwera V Pastori Tumwebaze[2001-2005] HCB 98

8. 4, Ahmad & Associates V Bauman (U) Ltd CACA 46/2000

4. Nakitto & Brothers Ltd V Katumba [1983] HCB 70;

8.2 Validity of Summons:

1. Dairy Corporation V Opio [2001-2005] HCB 113

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36
 2. East African Plans ltd Vs Bick Ford Smitli[1 971] HOB 225

3. A. Bauman and Co. (U) Ltd Vs Nadiope:[1 968] EA 306(U)

4. Nanjibhai and Co. Ltd Vs Standard Bank Ltd: [1968] EA 670[CA-K]

5. Kaur Vs City Auction Mart:[1 967] EA 108(U)

6. Robinson V Olwoch [1971] EA 376(K)

8.3 Purpose of Service

1. Kessington Africa Ltd Versus Pankajkumar Hemraj Shah HCMA No,

687/2012

2. David Ssesanga Versus Greenland Bank in Liquidation HCMA No.

406/2010

3. Geoffrey Gatete & Anor. William Kyobe SCCA No, 7/2005

4. Re. Pritchard (1963] ALLER 873.

8.4 Time within which to serve Summons and effect of service of expired
summons

(Time within which to serve, who to serve, consequences of lapse of time,

remedy if time for service lapses).

1. Fredrick James Junju & Anor versus Madhivani Group Ltd HCMA No.
688/2015

2. Western Uganda Cotton co. Ltd versus Dr. George Asaba & Others HCCS
NO. 353 OF 2009

3. Pinnacle Projects Limited versus Business in Motion Consultants Ltd

(Misc. Appl, No 362 Of 2010)
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 4. Stop & See (U) Ltd Versus Tropical Africa Bank Ltd HCMA No.333/2010

5. Elite International Tobacco (U) Ltd V Marchfair Stationary (U) Ltd [1 997-
2000] UCLR 253.

6. Century Enterprises Limited V Green land Bank (In Liquidation) HCT-00-

CC-CS-0877-2004

7. Central Electricals International Ltd & Anor Vs. Prestige Investments Ltd
HCMA 625/2011

8.5 Who can Serve Court Process?

Abdul Ssozi versus Post Bank Uganda Limited CACA No. 12/2010 (2015)

8.6 Modes of Service of Summons

Determinants of the appropriate mode of service, proof of service and

consequences of ineffective service. See also

Practice and approach adopted by courts.

Service on the Defendant in Person

1. Valery Alia Vs. Alionzi John HCCS No. 157/2010

2. Dr. Kasirivu Atwooki & 4others Vs. Bamurangye & Others [2009] HCB
42

3. Electoral Commission Vs. Mbabaali Jude HCT-06-CV-MA-53!2006

4. Jessey Technical Services & Anor. Versus Ajay lndustnal Corporation

HCMA No, 2013

Service on Agents other than the Defendant

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 1. Emiru Angose Vs. Jas Projects Ltd HCMA No. 429/2005

2. Proilne Soccer Academy Vs. Lawrence Mulindwa & 4 Others HCMA No.
0459/200

Service on an Advocate with Instructions

1. Twig a Chemical Industries Ltd V Viola Bamusedde CACA No. 9/2002

2. Beliram V Salkind [19541 27 KLR 28;

3. AG & Peter Nyombi versus Uganda Law Society HCMA No, 321/2013

Service on Partners in a Partnership

1. Geoffrey Gatete & Anor. Vs. William Kyobe (Civil Appeal No. 7/2005 (SC)

Service by Affixing Summons on Defendant’s address

1. Erukana Kavuna V Metha [1960] 305 (U)

2. Re. Pritchard (1963] ALLER 873

3. Katukulu V Transocean[1 974] 276 (CA-U)

Service on Adult Member of Defendant’s Family

1. Lalji v Devji [1962] EA 306

2. Betty Owaraga V George William Owaraga CA No.60 of 1992

3. Bulenzi Vs Wandera:[HCCS No.1047/90

4. Waweru V Kiromo[1 969] EA 172(K)

5. Erikanah Omuchilo V Ayub Machiwa [1966] EA 229(K)

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39
 6. M.B Automobiles V Kampala Bus Service [1966] EA 480.

Service on Several Defendants

1. EAGEN V Ntende [1979] HCB 227;.

Day and Hour of service

1. Wasswa Vs Ochola, SCCA No.05/i 990; (191) HCB 80

2. Pinnacle Projects Limited versus Business in Motion Consultants Ltd

(supra)

8.7 Service on a Company or Corporation

1. Uganda Broad casting Services Versus NBS Television Ltd HCMA No.
/2013

2. Tindarwesire Vs Kabale T.C (1980) HCB 33

3. Jessey Technical Services Ltd & Anor. Versus Ajay Industrial Corp HCMA
No. 2013

4. Frank Katusiime V Business Systems Ltd HCSC 717/1993 (Duplicate to

be delivered)

5. Nzioki S/o Muturnenta Vs Akamba Handcraft industries Ltd]

6. James Musajjalumbwa V Bitumastics Ltd [1982] HCB 103;

7. Augustine Okurut Vs Gerald Lwasa (1 988-1990) HCB 164

8.8 Service on the Attorney General

James Bahinguza and Others versus Attorney General of Uganda Court of

Appeal Misc. Application No. 269 of 2006

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40
8.9 Acknowledgment and Proof of Service

1. Goodman Agencies Ltd & Anor. versus Highland Agriculture Export

Limited HCMA No.364/2012

2. Uganda Broad casting Services Versus NBS Television Ltd HCMA No.
/2013

3. Lusiano Lippi v Venice (U) Ltd [1992] IV KALR 7.

4. Erukana Kavuma Vs Metha(supra)

5. Osuna Otwani V Bukenya Ssalongo [1976] HCB 62;

8.10 Proof of Service

6. Edison Kanyabwera V Pastori Tumwebaze SCCA No.6 of 2005

8.11 Contesting Service of Summons

1. Tweheyc Ecison Versus Barurengyera Kamuslime Hilary HCT-05-CV-CA

01112010

2. Busingye, Bamutonda & Othrs V William Katotsire [2001-2005] HCB 108

3. UTC Vs Kewaza [1975] EA:

4. Muss Kudaga V NIC (1977) HCB 243

8.12Effect of Failure to Serve Summons

1. Bazanye Fazil Vs. Nankunda Rose [2009] HCB Vol.2 atp. 20

2. Craig V Kansen [1943] 1 ALLER 108

3. Electoral Commission Vs. Mbabaali Jude HCT-06-CV-MA-53/2006

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41
8.13 Substituted Service

1. Elias Waziri & 2 Others Vs. Opportunity Bank (U) Ltd HCMA No.
599/2013 (HO)

2. Tweheyo Edson Versus Barurengyera Kamusiime Hilary HCT-05-C V-CA

011)2010

3. Al Hajj Abidi & Others Versus Tropical Africa Bank Ltd HCMA No.
360/2006

4. David Ssesanga Versus Greenland Bank (in Liquidation) Ltd HCMA

406)2010

5. Valery Alia Vs. Alionzi John HCCS No. 157/2010

6. Jessey Technical Services Ltd & Anor. Versus Ajay Industrial Corp HCMA
No. 2013

7. Violet K. Mukasa V Erizafani Matovu[1992-93] HCB 235

8. Kearstey (Kenya) Ltd VAnyumba & Othrs [1974] EA 112

9. UTC Vs Kewaza [1975] EA:

10. Magerav-Kakungulu (1976) HCB 28

11. Eseza Namirembe-v-Musa kizito (1973

8.14 Service out of Jurisdiction

Read; The Civil Procedure (Seivice of Notice of summons in Foreign Countries

Order SI 71

1. 1: Al Hajj Abidi & Others Versus Tropical Africa Bank Ltd HCMA No.
360)2006
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42
 2. Eddie Rodriguez v The British High Commission ca 8/87

3. Ndibarekera v The Embassy of the USA HOCS 786/97

4. Alemayehu Degafa V Kim Buwerman [1994] IV 27

5. Kuwait Airways V Iraq Airways & Others [19951 3 ALLER 694

TOPIC 9 (SH)

The Law Relating to Capacity to Sue or Be sued

To consider the various parties that can sue or be sued, the applicable law
and procedure to such parties, consequences of suing a non existing party
or wrong party among others

9.1 Difference Btn Capacity & Locus to sue

1. Major Roland Kakooza Mutale versus AG & IGG [2001-2005] HCB 110

2. Gordon Sentiba Versus IGG SCCA No.06/2008

9.2 General Principles Governing Capacity to sue or be sued

1. The Registered Trustees of the Muslim World League versus Tom

Luwalira & Victoous Educational Services Ltd HCMA No.723/2014

2. V.G Keswala & Sons versus M.M Sheikh Dawood HCCS No.43/20110

3. Meera Investments Ltd versus Commissioner General of URA SCCA

No.14/2012

4. Kakooza Mutale versus AG & Anor. [2001-2005] HCB 110

9.3 Deference Btn Legal & Physical Capacity:

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43
 1. Kilembe Mines Ltd Versus Uganda Gold Mines Ltd HCMA No.
312/2012

2. RTD Col Dr. Kiiza Besigye & Others V The DPP & AG Constitutional
Petition No.12 of 2006

3. Eddie Rodrigues V The British High Commission SCCA NO.8/87.

Odoki JSC

4. Manzur Alam V The Embassy of Saudi Arabia HCCS NO.402 OF 2002

9.4 Individuals

1. Kilembe Mines Ltd Versus Uganda Gold Mines Ltd HCMA No.
312/2012

2. George Paul Emenyu & Anor. V AG [19941 V KALR 109

3. Kiga Lane Hotel v UEDCL CS 557/2004

4. Abdul Basit Sengooba & Others V Stanbic Bank HCT -00-CC-CS

0184-2001[2006j

5. LomaxV Landels [18481136 ER 1374

9.5 Administrators /Legal Representatives

1. Michael Mulyanti & Anor. Vs. Jackline Bataringaya & Others HCCS
No.434/2008

2. Khalid Walusimbi v Jamel Kaaya & AG CS No 526 / 1989

9.6 Beneficiaries

1. Jacob Mutabaazi Versus The Seventh Day Adventist Church HCCS

No. 54/2009
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44
 2. Lugeya Samuel & Anor V UCB Ltd HCMA No. 893/2004

3. John Buteraba V Edrisa Serwanga & Anor. HCCS No.222 of 2008

4. Kabwa V Martin Banoba Musiga [1996] II KALR 109 SC

5. Wycliffe Kiyingi V Augustine Kajuna [1994] v KALR I

6. Jabir and Another v Jabir and Others (Civil Appeal No. HCT 02 CV.
AC 0001/03) [2007] UGHC 10

9.7 Donees of Power of Attorney

1. Co-operative Bank in Liquidation Vs Kashaija N. Imelda and Arior. HG

OS No.1 2011.

2. Alice Okiror Vs. Global Capital Save 2004 Limited and othrs HCCS
No.149/2010

3. J.B Mpanga V Dr. Nkamuhayo Rwacumika HCC Application No.

019/2009

4. Narrottam Bhatia and Anor V Boutique Zhazim Limited HCCS No.

411 of 1992

5. M/s Ayigihugu & Co. Advocates V Munyankindi Muteeri [1 990-91]

KALR 194

6. Turn Sidpra & Anor. V Uganda Rehabilitation Development

Foundation [1994] 1 KALR 25

9.8 Companies & Directors! Shareholders and Companies Limited by

Guarantee

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45
 1. DFCU Bank Limited versus Mukiibi Yudaya & Others HCCS No.
195/2012

2. Uganda versus Shanita Namuyimba & Anor. Case No. CR.SC.

102/2011

3. Nanam Aviation Limited Vs. Sun Air and Anor Civil Suit No. 309 Of
2008

4. Lea Associates Limited V Bunga Hill House Limited HCCMA NO.

348/2008

5. Lukyamuzi James V Akright Projects Limited & Anatoli Kamugisha

HCCS No. 319/2002

6. Kiga Lane Hotel v UEDCL CS 557(2004

7. Sentamu V UCB [1982] HCB 32

8. Nsangiranabo Erasmus t/a Nsangira Auctioneers and Court Bailiffs

versus Messieurs Associated Properties Ltd, Jagdshchangra Jashibhai
Patel and Bhupendera Jashibai HCMA No 953of 2001

9. The Registered Trustees of the Muslim World League versus Tom

Luwalira & Victorious Educational Services Ltd FICMA No.723/2014

10. Contraction Engineers & Builders Ltd V The New Vision & 3 Othrs
[19941111 KALR 37

11. Fam International Ltd & Anor. V Mohamed El Fatih [19941111

KALR 108 SC

12. N.K Raclia Vs. Kakhubhai & Co. Ltd [1995] I KALR 87

9.9 Authority to commence a suit in the names of a Company

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46
 1. Kabale Housing Estates Tenants Ltd Vs. Kabale Municipal Council
SCCApp No. 15/2013
2. Nile Safaris Ltd Versus Warsaw Adams Construction Ltd HCCS No.
659/1995
3. Bugerere Coffee Growers V Ssebaduka [1970] EA 147;
4. United Assurance Co. AG SCCA No. 1 of 1986, Wambuzi C.
5. Tobacco & Commodity Traders International Incorporated Vs.
Mastermind Tobacco (U) Ltd Companies Cause No. 18/2002

9.10 Unincorporated entities, Associations, NGOs, Churches,

Registered Trustees etc

1. The Registered Trustees of the Muslim World League versus Tom

Luwalira & Victorious Educational Services Ltd HCMA No.723/2014

2. Kilembe Mines Limited versus Uganda Gold Mines Limited HCMA No.
312/2012

3. Uganda Freight Forwarders Association & Anor. Vs. AG and Anor. CS.
No, 22/2009

4. The Trustees of Rubaga Miracle Centre V Mulangira Simbwa V The

board of Trustees Miracle Centre & Pastor Kayanja HCCMA No.576
/2006 AND 655 OF 2005

5. Okwonga Vs Anywar &Another [1984 HCB] 45,

6. Makula international V Cardinal Nsubuga [1982] HCB 11

7. Butemuka Vs Anywar and Another. [1977] HCR 77;

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 9.11 Government

1. Sinba (K) Ltd versus Uganda Broadcasting Corporation Civil

Application No.5/20 14 SC

2. AG & Peter Nyombi versus Uganda Law Society HCMA No. 321/2013

3. Yustus Tinkasimire & 18 Others versus AG & Dr. Malinga Stephen

HCMC No. 35/2012

4. Wakiso Cargo Transporters Ltd V Wakiso Disffict Council & AG HCT

00-CCCS 070/2004;

5. Alice Katungaza V AG[2002] EA

6. Charles Harry Twagira V AG, DPP & Sam Kyomukama, Civil Appeal
No.2 of 2007 SC.

9.12 Local Government Council, Town Council, Municipal Council

1) Kitgum District Administration V Print and Stationary Suppliers

CACA 44 of 1998.

7. Wakiso Cargo Transporters Ltd V Wakiso District Council & AG HCT O0-
CCCS 070/2004;

9.13 Statutory Corporations

8. Investments Ltd Versus Commissioner General of URA SCCA

No.14/2012

9. F Uganda Development Bank Versus ABA Trade International Ltd, URA

& Others HCMA No. 567/2010

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 10. Uganda Pentecostal University Ltd V The National Council for
Higher Education and AG HCCA No.36 of 2005

11. M/S Robo and Another V Comm. Gen of URA CACA No.55 of 2003

12. Bagamuhunda Vincent V UEB [In Liquidation) HOT 00 CV-CS-

0400-2007

13. Okello Okello V UNEB [1993] 11 KALR 36;

14. Apolo Hotel Corporation Ltd v Geoffrey Oryema CA No. 12/2006

9.14 Government Bodies/ Departments

15. Charles Harry Twagira V AG, DPP & Sam Kyomukama, Civil
Appeal No.61 of 2002.

16. Chaes Harry Twagira V AG, DPP & Sam Kyomukarna, Civil Appeal
No.2 of 2007 SC.

17. Col Dr. Kiiza Besigye & Others V The DPP & AG Constitutional
Petition No.12 of 2006.

18. Muwonge V AG [1967] EA 13. See S.3 of the Government

Proceedings Act

19. Amos Mugisha & Sons V Chemical Industries V DAPCB & NRM
Secretariat [1 990-91] KALR 38

20. Byabazaire v Mukwano Industries ltd [20021 2 EA;

9.15 Foreign Missions and Diplomatic Agencies

21. Eddie Rodrigues V The British High Commission SCCA NO.8/87

22. Ndibarekera V The United States of America HCCS NO.786/97.

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 23. ‘omali Democratic Republic v Treon SCCA No.6 of 1998

24. uwait Airways V Iraq Airways & Others [1995] 3 ALLER 694

25. See Manzur Alam V The Embassy of Saudi Arabia HCCS NO.402
OF

26. Bitwire Emmanuel V The Representative of the Zaire Represented

by its Embassy [1998] 1 KALR 21

9.16 Partnerships

27. Geoffrey Gateete versus Kyobe & Anor SCCA No.

28. Yunusu Ismail T/A Bombo City Stores V Alex Kamukama & Othrs
[1992] III KALR 113

29. Nterekeya Bus Service V Rep of Kenya 196691) ALR Comm 452,

30. See Benjamin Sajjabi/T/A Namataba V Timber Manufacturers

Limited [1978] HCB 202;

31. 31. 1-lorra Vs Horra [1959] EA 981 (K).

32. 32. Sarwan Singh Vs Karan Singh [19631 EA 423 (K).

33. Kasana Produce Vs Kato [1973]).

34. Johnson VS Moss (1969) EA 654.

35. Reliable African Insurance Agencies V NIC (1979) HCB 58

36. K,wa V Sohan Singh & Co.(1972) HCB

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 9.17 Minors & Persons of Unsound Mind

The Law

1. Semyalo Michael versus The Registered Trustees of Kampala Arch

Diocese SCCA No. 12/2009

2. j 5dul Basit Ssengooba & Others Versus Stanbic Bank Uganda Ltd
HCCS No.184/2001

3. Thomas A.K Makumbi (Through Next Friend Patrick Makumbi Vs.

Josephine Katumba HCMA No. 316/2014

Who is a Minor

(Read Article 31 and 274 of the constitution

1. Kabandize & Others versus KCCA CACA No. 28/2011 (march 2014)on
interpretation of Article 274 of the Constitution)

2. Loi Bagyenda & Anor. Vs Loyce Kikunja Bagyenda [1994] VI 46

3. Kiddu Musisi Vs Lyamulemye and Another 1977] HCB 88;

Prerequisites of a next Friend

1. ThomasA,K Makumbi (Through Next Friend Patrick Makumbi Vs.

Josephine Katumba HCMA No. 316/2014

2. Wasswa & Anor. V Daniel Sentenza (1977) HCB 88;

3. Geihuge V Gibbs [1897] ICH 479.

Requirement to attach Authority of the Next Friend

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 1. Kabatoro Vs Namatovu (1975) HCB 159;

2. Jingo Vs Kabagiza (1974) HCB 294

3. Musoke Vs Uganda Co-op. Savings [1978] HCB 189.

9.18 Legal effect of non Compliance

1. Nasozi v Water Resources Development Ltd [1972] HCB 210

2. Credit finance Corporation Ltd Vs Kamali [1965] EA 545 (K).

3. RE Brockle bank (1877) 6 Ch 358: 360

4. Gingo v Kamugisha (1974) HCB 294

5. Barclays Bank v Patel (1959) EA 214

6. Kanani v Desal (1954) ULR 135

7. Semakula v Musoke (1981) HCB 46

9.19 Others like Government and Private Schools, Universities,

Traditional institutions etc

1. Harriet Grace Bamale (suing through her next friend) Kituma Magala
V The Board of Governors of Makerere College

1. school[1994} 1KALR 10

2. Management Committee Mengo Primary School & Othrs V Ngabo

Newspaper [1993] 1 KALR 115

3. S.3 Uganda Registration Services Bureau Act CAP 210

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52
 4. Administrator General V Uganda Posts & Telecommunications
Corporation; [1993] IV KALR 108

5. Traditional institutions; Article 249 of the 1995 constitution.

9.20 Effect of a suit against a wrong or Non Existent Party & Remedy

1. The Registered Trustees of the Muslim World League versus Tom

Luwalira & Victorious Educational Services Ltd HCMA No.2014

2. The Trustees of Rubaga Miracle Centre V Mulangira Simbwa V The

board of Trustees Miracle Centre & Pastor Kayanja OCMA No.576
/2006 AND 655 OF 2005

3. John Kibyami V Mission and Relief Transport Ltd HCCS No.236/2006

4. Makula International V Cardinal Nsubuga[1 9821 HCB 32

5. Mubiru V Byensiba [1985] HCB 106

6. SajjabiV Timber Manufacturers Ltd[ 1978] HCB 202

7. Lea Asociates Limited V Bunga Hill House Limited HCT OOCC-MA-

0292-2007

8. The Trustees of Rubaga Miracle Centre V Mulangira Simbwa V The

board of Trustees Miracle Centre & Pastor Kayanja HCCMA No.576
/2006 AND 655 OF 2005.

TOPIC 10 Joinder of Parties as Plaintiffs and Joinder of Causes of Action

(SA)

1. HalsburyS Code Of Civil Procedure 12th Edn Vol. 1 Page 543

2. Pathak -V- Mpekwe (1964) EA24

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 3. AG & Peter Nyombi versus Uganda Law Society HCMA No. 321/2013

4. Semyalo Michael versus The Registered Trustees of Kampala Arch

Diocese SCCA No, 12/2009

5. IGG & Jinja District Administration Versus Blessed Contractors Limited

HCCA No. 21/2009

10.1 Joinder/Parties as Defendants and Joinder of Causes of Action

1. John Buteraba V Edrisa Serwanga & Anor. HCCS No.222 of 2008

2. Lea Associates Limited V Bunga Hill House Limited HCT OOCC-MA-

0292-2007

3. Allied Bank International (U) Ltd V Sadru Karah [20001-2005] HCB Vol.2
79

1. 4 4. Yowana Kahere &Othrs V Lunyo Estates Limited (1959) EA 319

4. Stephen Lubega V Barclays Bank (U) Ltd (1992) III KALR 51

5. Kananura Melvin Consultant Engineers V Conee Labanda [1992] KALR

61

6. Fatuma Osman Hussein V Mahendra Umadbai Patel [1995] 1 KALR 29

7. Bank Of India V Shah (1959) EA 18

8. Sempa Mbabali V Kidza [1985] HCB 46

9. Stround-V-Lawson (1898) 2 QB44

10. Barclays Bank -V-Patel (1959) EA214

11. A.M.Okwonga-V-James Anywar (1984) HCB 45

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 12. Paulo Kayima-V-Rugoora (1980)HCB 3

13. Makula lnternation-V- Cardinal Nsubuga (1982) HCB 85

14. Johnson -V- Moss (1969) EA 654

15. Ssonko & Others-V-Haluna & Anor (1971) EA 469

16. Kenani-V-Desai (1954)7 ULR 13

10.2 Striking out Addition and or Substitution of Parties

1. Nabyonga versus Zion Construction Limited (Jan. 2016)

2. Stanbic Bank (U) Ltd & Anor Versus Commissioner General URA HCMA
No. 0042/2010

3. 3, Kakooza Mutale Versus AG & Anor. [2001-2005] HCB 110

4. Lea Associates Limited V Bunga Hill House Ltd HCT-OOCC-MA 0348-

2008

5. DAPCB V Jaffer Bros Ltd SCCA No. 9 of 1998

6. Shamsherali Zaver Virji Vs. F.L. Kadebhai and Othrs CACA NO. 81/2004

7. David Kayondo V Resty Nantongo [1994] VI KALR 114

8. Kananura Melvin Consultant Engineers V Conee Lambanda [[1992] 111

KALR 61

9. Kawempe Division Council V Mary Masembe CACA NO.81/2004

10. Lugeya Samuel & Anor. Vs UCB Ltd HCMA No. 893/2004

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 11. Kololo Curing Co. Ltd V West Mengo Co-operative Union (1991)
HCB 60

12. Sajjabi-V- Timber Manufacturers (1978) HCB 202

13. Gaholdas LaxiHodas Tana V Sorter Rose Muyinja HCCS No, 1076
of 1987 (1990-99) KALR

14. Ally Route Ltd C UDB Ltd HCT-00-CC-MA 459-2007

15. DanesvarV Metha V Manual M. Shah CACA No.3 of 1964 (1965)

EA 3

16. 16, Matovu-V- Post Master General (1973) HCB 114

17. Forthall Barkery-V-Muigia (1959) EA474

18. PakV Mpekwe (1964) EA 24

TOPIC 11 Representative Action (SH)

See Chitaley & Rao in AIR Commentaries; The Code of Civil Procedure 7 th Ed
Vol. II Pages 1886 and 1997; See Mulla; The Code of Civil Procedure 17 th
Edition Vol.2 Page 36-37I

11.0 The Law on Representative Suits

1. Kasozi Joseph & Others Vs. UMEME (U) Ltd HCCS No. 188/2010

2. Idumu Marcellellinus Vs. UMEME HCCS No.24/2010

11.1 Circumstances Giving Rise to Representative Action

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 3. Matovu & Matovu Advocates Versus Uganda Electricity Generation
Company HCMA No.0172/2003

4. Uganda Freight Forwarders Association & Anor. Vs. AG and Anor. CS.
No. 22/2009

5. Rwanyarare James V AG [1997] VI KALR 61

11.2 Mandatory Requirement to Obtain Prior Leave of Court

6. Hermezdas Mulindwa & Anor. Vs Stanbic Bank U Ltd HCT-00-CS-0426-

2004

7. Makula Int-V- Nsubuga & Anor (1982) HCB 85

8. Johnson-V-Moss (1969) EA 654

11.3 Notice of Representative Suit to be advertised and appearance by

Parties

9. Tarloghan Singh V Jaspal Phaguda & Others [1997-2001] Ucl 408

10. Ibrahim Buwembo Versus M/s UTODA Limited HCCS

No.664/2003

11. PR Nallathambi Goundan Vs. Vijaya Raghavan AIR 1973 Mad 25

a. Requirement to Plead and Attach Representative Order

12. Wariform V Standard Chartered Bank Kenya Ltd & Othrs ( 2003) 2
EA 701

13. Maximov Oleg Petrovitch V Premchamdra Shenoi [1998] 1 KALR 52

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57
 11.4 Consent of persons sought to be Represented

14. Yustus Tinkasimire & 18 Others versus AG & Dr. Malinga Stephen
HCMC No. 35/2012

15. Matovu & Matovu Advocates Versus UEGCL & AG HCMA No.
0172/2010

16. Rwanyarare James V AG [1997] VI KALR 61

17. Herman Ssemujju versus AG Constitutional Petition No.1/98

18. Lewis-V- Daily Telegraph (1964) 2qb 601

19. Campbell-V- Thompson (1953)1QB 445

11.5 Pre-requisites for a Representative Suit

20. Smith-V-Cardiff Corp. (1954)1 QB 210

21. Paulo Kanyima-V-Rugoora (1982) HCB 33

11.6 Rationale for a Representative Suit

22. Ssonko &Others-V-Haruna & Anor (1971) EA 443

23. Hermezdas Mulindwa & Anor. Vs Stanbic Bank U Ltd HCT-00-CS-

0426-2004

11.7 Procedure, Forum and Relevant Documents

24. Kasozi Joseph & Others Vs. UMEME (U) Ltd HCCS No. 188/2010

Matovu & Matovu Advocates Versus UEGCL & AG HCMA No. 0172/2010

11.8 Exceptions

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 25. Tean-A.G/NEMA Misc. Application No.39 Of 2001

26. Batu-V- Tean Civil Application No.27 Of 2003

27. Greenwatch Vs. AG and NEMA HCMA No. 140/2002

11.9 Third Parties

Law Reform (Miscellaneous Provisions Act)

1. Michael Richardson versus Rand Blair & Bokomo Uganda Ltd HCMA
No. 51/2012

2. Winnie Okidi & Others Vs. Fina Bank (U) Ltd HCMA No. 90/2013

3. Uganda Railways Corporation Versus Bushenyi Commercial Agencies

CACA No. 94/2010

4. NBS Television Limited Versus UBC HCMA No..2012

5. Charles Okia V Uganda Consolidated Properties Ltd [1992] 1 KALR

112

6. Ronald Kayala V Hussein Ali Ahmed [1993] V KALR 63 SC

7. Panyahulu Trading Company versus Now Ocean shipping Co Ltd

HCCS No

8. Transami (U) Ltd V Transocean (U) Ltd [1994] 1 KALR 175

9. Lake Victoria Bottling Co. V Crown Bottlers [1994] II KALR 27

10. Yafesi Walusimbi-V- Ag. (1959) EA 223

11. Edward Kironde Kaggwa-V- L. Constaperal (1963) EA212

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 12. Obango-V-U.T.C. (1975) HCB 118

13. East Mengo Growers Co-Op Union Ltd-V-Nic (1985) HCB 94

14. Total Oil Products Ltd -V- William M.K Malu [1965] EA 164

15. Birmingham-V-Londan (1887) 34 Ch.D 216

16. Easternn Shipping-V-Quall (19240 EA 42\

17. Champion Moto Spares-V- Phadke (1969 EA 42

18. Sango Bay Estates Ltd-V- Dresdnmer Bank (1971) EA 17

19. Barclays Bank-V-Tom (1923) IKB 221

11.10 Interpleader Proceedings

1. Standard Chartered Bank (U) Ltd V Gapco U Ltd and Barclays Bank
PLC HCT-00-CC-MA-0049-2007

2. Sergeant V Gautama (1968) EA 338

3. Re Katende Ssempebwa HCMA No.

4. Famous Cycle Agency Ltd V Manshular Ramji & othrs [1994] V KALR
58

11.11 Amicus Curiae and Intervenors

1. Among. A. Anita versus AG and Sec. General EAC (EACJ) Application

No.6/2012

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 2. IGG & Jinja District Administration Versus Blessed Contractors Limited
HCCA No. 21/2009

3. Re; Nakivubo Chemists [1977] HCB 311

4. Inspector General of Government versus Kikonda Butema Farm Ltd & AG

Constitutional Application No. 12/2006

5. Dritoo V West Nile District Administration [1968] EA 428

6. Edward Fredrick Ssempebwa V AG [1992] VI KALR 160

7. Attorney General versus Silver Springs & Others SCCA No.1/1989

Read; Article; Constricting the Amicus Curiae Procedure in Human

Rights Litigation. What can Uganda learn from South Africa by John C.
Mubangizi & Christopher Mbazira

TOPIC 12-PLEADINGS & AMENDMENTS OF PLEADINGS (SA)

SIR JACK JACOB “The present importance of pleading” 2- 1960 current legal
problems

SIR JACK JACOB Reforming civil procedural Law by sweet & Maxwell 1982.

ODGERS’ Principle of Pleading & Chap. 6.

BULLEN & LEAKER & JACOB precedents of pleading 11th Edn.1975

S. THENALWALL; determining the subject for decision 10 EAL 41

12.1 Meaning and Relevancy of Pleadings

1. Reliable Trustees Ltd V George Semebguya HCCS No. 601/92

2. Peter Bakaluba Mukasa Versus Betty Nambooze SCCA No.4/2009

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 3. Motorcare (U) Ltd V AG HCCS No. 638/2005

4. Kasule –V- Makerere University (1975) HCB 376 At 378

5. Talikuta-V- Nakendo (1979) HCB 276

6. Busuti-V- Busoga District Adm. (1982) HCB 60

12.2 Material Particulars in Pleadings

7. Paineto Mubiru-V- UCB (1971) ULR 144

8. Mutongole –V- Ntil (1971) HCB 114

9. Acra & Ors-V- Acar Aliro (1931) I KB

10. Level Bros Ltd-V- Bell (1931) I KB 357

11. Mbarara Coffe Curing-V- Grindlays (1975) HCB 57

12. Kahwa-V- UTC [1978] HCB 318

13. Okello Vs UNEB SCCA No.12 Of 1987]

14. Bisuuti Vs- Busoga Administration (1971) ULR129:

12.3 Signing of Pleadings

1. Mugabi V AG [1991] HCB 65

2. Greenland Bank Ltd V H.K Enterprises Ltd & Othrs [1997-2000] UCLR
283

3. Darlington Bakunda V Dr. Kinyatta CACAppl No. 27 of 1996

4. Habre International Trading Co. Ltd V KCC HCT00-CV-CS 0763/1994

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 5. Prof Huq V I.U.I.U SCCA No. 47 of 1995

6. Alfred Olwora V Uganda Centre Co-op Union Ltd [1993] 111 100 SC

12.4 Plaint; General Requisites

1. Motorcare (U) Ltd V AG HCCS No. 638/2005

2. Erinesti Ochieng V Obedo Nyambito Civil Appeal No. 92 of 1973

3. Lea Associates Limited V Bunga Hill House Limited HCT 00CC-MA-

0292-2007

4. GW Wanendeya v Stanbic Bank ltd HCT CS No 486/2005

5. Byabazaire v Mukwano Industries ltd [2002] 2 EA;

12.5 Particulars in Plaint

6. Belex Tours & Travel Ltd versus & Anor versus Crane Bank & Anor.
CACA No.071/2009

7. Peter Bakaluba Mukasa versus Betty Nambooze, Supreme Court

Election Petition Appeal No. 04/2009

8. Tororo Cement Co. Ltd vs. Frokina International Co. Ltd C.A No. 2/2001

9. Bosa & Co. Advocates V Vero Nassanga & Others [1994] V KALR 166

10. Okello Okello V UNEB [1993] 11 KALR 133 SC

11. Israel Kabwa V Martin Banoba Musiga [1996] II KALR 109 SC

12. Sheikh Kateregga V AG [1995] III KALR 143

13. Sarah Nakabate Serubugo V Robina Nakidali [1994] VI KALR 24

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 14. Kebirungi Justine V M/s Road Tainers Ltd and 2 others HCMA
No.285 of 2003

15. Hermezdas Mulindwa & Anor. Vs Stanbic Bank U Ltd HCT-00-CS-

0426-2004

12.6 Cause of action, Rejection of a Plaint and Striking out of

Pleadings

16. Semakula & Co. Advocates Versus URA HCCS No. 252/2011

17. Wabudeya Peace & Anor. Versus Margaret Nabwire HCCA No.
0017/2011

18. Micro Finance Support Centre Ltd Vs Uganda Micro Enterprises

Association Ltd HCT 00-CC-CS-1007-2004

19. Mavunwa Edison & Othrs V UEGCL CACA No.96/2004

20. Baku Raphael Obudra & Anor. Vs AG SCCA No. 1 of 2003

21. Wycliff Kigundu V AG [1993] V KALR 80 SC

22. Byabazaire v Mukwano Industries ltd [2002] 2 EA;

23. H.MB Kayondo V AG [1987] KARL 37

24. Opik Opoka V Muno Newspaper & 2 Othrs [[1990-91] KALR 15

25. Jeraj Sharriff & Co V Chotai Fancy Stores [1960] EA 374 CA

26. Drummond Jackson Vs British Medical Assocation & Othrs [1970]

1WLR 688

27. Maximov Oleg Petrovitch V Premchamdra Shenoi [1998] 1 KALR 52

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 28. Tikani V Moyui [2002] SBHC 10;HC-CC-029/2001

29. Norman V Mathews 1916 85 L.J K.B 857

30. Ghella M. Shah-V- Abdulla (1962) EA 765

31. Mutungi-V- Kabuchi (1966) EA 454

32. Nkalubo Vs. Kibirige [1973] EA 102

33. Letang-V- Copper (1965) 2QB 232 (Diplock At 252)

34. Sempa Mbabali-K-Kidza (1985) HCB 46

35. Mavuma Edison & 2 Others V UEG Co. Ltd CACA No.96 of 2004

36. Mukasa V Singh & Ors [1969] EA 442

37. H.J Stanley And Sons Ltd V Akberali Saleh [1963] EA 574

38. Ugacof Vs Interfreight Forwarders 1997-2001] UCLR 447

39. Nkalubo-V- Kibirige (1970) EA466

40. Sullivan-V-Ali Mohammed Osman (1970) Ea 239

41. Odd Jobs-V- Mubia (1970) EA476

42. Libyan Arab Bank-V- Interpco Ltd (1985) HCB 73

43. Kizito Mubiru-V-Byensiba[1982] HCB

44. Mikidadi Kawesa-V-A-G (1973) I ULR 1221 ;( 1973) HCB 115

45. Bamuwayire-V-A-G.(1973) HCB 87

46. Birakwate-V-Kilembe Mines (1975) 93

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 47. Acar-V-Acar Aliro (1982) HCB 60

48. Yafesi Katimbo-V-Grindlays Bank (1973) HCB

49. Nyadoi-V-E.A Railways Corpn (1974) HCB 122

50. Eruniya Ebyetu-V-Gusberito (1985) HCB 63

51. Mrs Kazoora-V-A.G (1973) HCB 116

52. Auto Garage-V-Motov No. 3 (1971) KB 514

53. Bukenya-V-A.G (1972) EA 326

54. Brigadier Smith Opon Acak V Ag [1997] 111 KALR 69

55. Greenland Bank Ltd V H.K Enterprises Ltd & Othrs [1997-2000]
UCLR 283

12.7 Reliefs and Particulars of Special Damages

1. Muhwezi Astone Versus Irene Number One & Anor. HCT-05-CV-CA-

0066-2013

2. Komakech Geoffrey & Anor vs. Rose Akol Okullo & 2 Ors, Civil Appeal
No. 21/2010

3. Kabu Auctioneers & Court Bailiffs vs. F.K Motors Ltd Civil Appeal No.
19/2009

4. Goustar Enterprises Limited Vs. John Kokas OumoSCCA No.08/2003

5. Francis Sembuya Versus All Ports Services (U) Ltd SCCA No. 6 of 1999

6. Valla bhudas Vithaldas & sons Ltd vs Mateeka [2001-2005] 2 HCB 69

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 7. Wakiso Cargo Transporters Ltd V Wakiso District Council & AG HCT 00-
CCCS 070/2004;

8. Foods & Beverages Ltd V Srael Musisi Oponya [1993] 111 KALR 110

9. DAPCB V Isa Bukenya [1993] V KALR 13 SC

10. Kasule-V- Makerere University (1975) HCB 376

11. Take Me Hyome-V-Apollo Construction

12. Kisige-V-Muzakami Batolewo (1981) HCB 67

13. Francis Butagira V Deborah Namukasa [1992] VI 6

12.8 Summary of evidence and Annextures to Plaints; O6r.2 and O.7 r.

14

1. Eastern & Southern Ltd V Hassan Bassajjabalaba & Othrs[ supra]

2. Suffish International Food Processors & Anor. V Egypt Air Corporation

SCCA No.15 of 2001

3. Hajji Subair Magomu V UP &TC Corporation HCCS No. 2044/1997

4. Sule Pharmacy Limited V The Registered Trustees of the Khoja Shia Itana
Shari Jamat Hcma No. 147 Of 1999.

5. Unicof Ltd V Interfreight Forwarders [1997-2001] UCL 447

6. Philps-V- Phillips (1878) 4 QB 127 At 139

7. Okello Eric & Anor. V Wade Adams Ltd [1998] I KALR 126

8. Lukyamuzi-V- House Tenant Agencies Ltd (1983) HCB 75

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 12.9 Written Statement of Defence, Counter Claim, Extension of Time,
Striking out WSD, Failure to file Defence, Admissions in WSD etc

Appearance by Filing WSD

1. AG & UCB V Westmont Land (Asia) Bhd & Othrs. [1997-2000] UCLR
191

2. Bazanye Fazil Vs. Nankunda Rose [2009] HCB Vol.2 at p. 20

Time for Filing WSD

1. Mark Graves V Balton (U) HCMA No.158 of 2008

2. Stop & See (U) Ltd Versus Tropical Africa Bank Ltd HCMA No. 333/2010

3. Elias Waziri versus Opportunity Bank (U) Limited HCMA No. 599/2013

4. AG versus Sengendo

Nature of WSD

1. Nile Bank ltd v Thomas Kato & others [1997 – 2001] UCLR 325

2. Francis Sebuya V Allports Services (U) Ltd SCCA No. 6/1999

Effect of Failure to File WSD

1. Efulaimu Kasiwukira Vs. Samuel Serunjoji HCCS No. 380/2008

2. Elizabeth Imagara & Ors V AG [1995] V1 KALR 126

3. Cleaves Hams Ltd V British Tutorial College Africa Ltd

4. AG V Sengendo [1971] HCB 304

5. J.K Patel V Spear Motors Ltd [1993] 1 KALR 40 SC

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 6. Makerere Properties Ltd V Mansukhlal Ranji Karia [1995] III KALR 25

7. Uganda Whole salers V Impex House Ltd[1971] EA 245

Extension of Time to File Written Statement of Defence

8. Robert Opio & Anor V Edward Kabugo Sentongo HCMA No.166-2002

9. Godfrey Magezi & Brain Mbazira V Sudhir Rupaleria SCCAPP 10/2002.

10. Credit Finance Co Ltd V Makerere Properties SCC Appl No.1 of 2001.

Procedure where No WSD is Filed

11. Ssetuba Misairi versus The Registrar of Titles HCMA No. 55/2011

12. Agasa Maingi v AG HCS No. 95/2002

13. Bhabilia Habib Ltd V Commissioner General URA [1997 – 2001] UCLR
202

14. Dembe Trading Enterprises Ltd V Uganda Confidential Ltd and Anor.
HCT-00-CC-CS-0612-2006

15. Hajji Asuman Mutekanga V Equator Growers (U) Ltd SCCA No. 1995

WSD with Counter Claim

16. Geoffrey Ouma V Kaledonia Karuragire HCCS No. 418 of 2000

17. Nile Breweries V Bruno Ozunga T/A Nebbi Boss Stores HCT-00-CC-CS
0580-2006

Service of WSD and Counter Claim & Remedy for late filing

1. Rwalanda John versus Bakulu Johnson HCMA No….2014

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 2. Standard Chatered Bank Ltd versus Mwesigwa Geoffrey Phillip
HCMA 477/2012

3. Mwesigwa Phillip versus Standard Charted Bank Limited HCMA

200/2011

4. Nile Breweries vs. Bruno Onzunga t/a Nebbi Boss Stores HCT – 00 –
CC – CS 0580 of 2006

5. Protection Security Services versus Eastern Builders and Engineers

Ltd miscellaneous application number 566 of 2011 arising from High
Court civil suit number 101 of 2011.

6. Silvanus Bob Turyamwijuka versus Compassion International and

Dr. Mbanda Laurent HCCS NO 0115 of 2010

7. Simon Tendo Kabenge vs. Barclays Bank (U) Ltd and Phillip Dandee
MA 0623 of 2010 arising from HCCS 0281 of 2010

12.10 REPLY AND DEPATURE

8. Katuramu V AG (1986) HCB 39 CA

9. Eric Ntungura Vs. Jane Mwesigwa HCCS. No.71/2005

10. His Worship Bwire V AG [2009]HCB Vol.2 Page 10

11. Byabazaire v Mukwano Industries ltd [2002] 2 EA;

12. Uganda Whole salers V Impex House Ltd[1971] EA 245

13. Kabaseke Stores Company Ltd V AG[1993] 1 KALR 15

Parties Bound by their pleadings

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 14. Aisha Nantume V Emmanuel Lukyamuzi HCC Appeal No011 of
2002

15. Inter freight Forwarders (U) LTD v EADB SCCA No.13/1993

16. Musisi Ddirisa & 3 Others V Sietco (U) Ltd [1993] 1V KALR 67

17. John Nnagenda V The Editor of the Monitor Newspaper [1995] VI

KALR 126 SC

Denial

1. Joshi V Uganda Sugar Factory Limited [1968] EA 570

2. Ben Byabashaija & Anor. V AG [1992] 1 KALR 161

12.11 AMENDMENT TO PLEADINGS

1. Michael Richardson versus Rand Blair & Bokomo Uganda Ltd HCMA
No. 51/2012

2. Winnie Okidi & Others Vs. Fina Bank (U) Ltd HCMA No. 90/2013

3. Mulowooza & Brothers Versus N. Shah Ltd SCCA No.

4. Bufallo Tingstein Inc Versus SGS Uganda Limited HCMA No. 06/2012

5. Hajji Semakula Haruna Vs. Stanbic Bank Uganda Ltd HCMA No.
642/2011

6. Lea Associates Limited V Bunga Hill House Limited HCT 00CC-MA-

0292-2007

7. Francis Drake Lubega Vs. Barnabas Taremwa [2009] HCB Vol2 44

8. Shamsherali Zaver Vs. Kadibhai & 3 Ors. [2007] HCB Vol.1 page 62

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 9. John Kibyami V Mission and Relief Transport Ltd HCT/ CC-CS 236 OF
2006

10. Mbayo Jacob Robert V Electoral Commission & Anor. Elecetion

Petition Appeal 07/06

11. Bhadelia Habib V Commissioner General, URA [1997-2000] 202

12. AG & UCB V Westmont [1997-2000] UCLR 19

13. Bhabilia Habib Ltd V Commissioner General URA [1997 – 2001]

UCLR 202

14. Brigadier Smith Opon Acak V AG [1997] 111KALR 69

15. Jack W. Wamayi V Interfreight Forwarders (U) Limited [1993]I

KALR 13

16. Kayondo V AG (1988-90) KALR 127

17. Talikuta V Nakendo[1979] HCB 127

18. Gaso Tranpsort Services (Bus) Limited V Martin Adala Obene SSCA
No.4 of 1994

19. Edward Secinde V Fred Luwaga (1995) IV KALR 149

20. Edward Kabugo Sentongo V Bank of Baroda HCT00-CC-MA 0203-

2007

21. Coffee Marketing Board V Fred Kizito (1992-93) HCB 175

22. D.D Bawa Ltd Vs Didar Singh [1961] EA 282

23. Reliable Trustees Ltd V George Semebguya HCCS No. 601/92

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 24. Faucett Arthur Ocatum Engole V AG [1992] 11 KALR 52

25. Mugabi V AG [1991] HCB 65

26. Ssalongo V Kasese Town Council (1992-93) HCB 159

27. Clarapede & Co. Vs Commercial Union Association (1882) 32 WLR

262

28. Sebunya Gerald V UCB (1992-93) HCB 224

29. Gale Vs Sper Drug Stores [1996] 3 ALLER 468

30. Preston Banking Co. V William Allusp & Sons [1985] 1 ch 141

31. John Ntambi V AG & Anor. [1992] V KALR 90

32. Matico Stores Limited V James Mbabazi & Others [1995] 111 KALR
31

12.12 UNPLEADED ISSUES

1. Standard Chartered Bank (U) Ltd V Grand Hotel Ltd CACA No.13/1999

2. Muhammad Hamid Versus Rock Construction Co. (supra)

3. Kahwa & Bikorwenda V UTC [1978] HCB 316

4. Inter freight Forwarders (U) Ltd v EADB [1993] IV 124 SC

5. Nkalubo V Kibirige[1973] EA 102

6. Plotti V The Acacia Co. Ltd [1959] EA 248

7. Kahigiriza V Sezi [1982 HCB 148

8. Damji V Rambhai [1970] EA 515

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 9. Shah V Patel & Others [1961] EA 397

10. Odd Jobs V Mubia [1970] EA 476

11. Take Me Home Ltd V Appollo Construction [1981] HCB 43

12. Fenades V The People’s Newspapers [1971] 1 ULR 119

13. AG V Baranga [1976] HCB 45

14. Makula International V Cardinal Nsubuga [1982] HCB 11

15. Acar V Aliro [1982] HCB 60

16. Kaweesa V AG [1973] HCB 114

TOPIC 12 LIMITATION OF ACTIONS (SH)

See Limitation Act Cap 80.

1. Charles Mpiima V AG [1993] 1 KALR 1

2. Uganda Railways Corporation V Ekwaru & Others CACAppl No.

185/2007

3. M. Buwule Kasasa Versus Japsher Buyonga Bwogi CA

4. Hermezdas Mulindwa & Anor. Vs Stanbic Bank U Ltd HCT-00-CS-

0426-2004

5. URA V Uganda Consolidated Properties Ltd [1997-2001] UCL 148

6. Sayikwo Murone V Yovani Kuko and Anor (1985) HCB 68

7. Sour Fap Famous, RZ V AG [1997] UCLR 396

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 8. In the matter of an application by Mustafa Ramathan CACA No.25 of
1996

9. Kenfreght (U) Limited V URC [1997-2000] UCLR 299

10. URA V Uganda Consolidated Properties Ltd [1997-2000] UCLR 149

11. Sour Fap Famous, RZ & Anor. V AG[1997-2000] UCLR 396

12. Lovell V Lovell (1970) 3 ALLER 412

13. Mabro V Eagle Stan & British Dominions Insurance Company

(1932) 1 KB 485

14. Bush Vs Steven (1962) 1 ALLER 413

15. Danesvar V Metha V Manilal M. Shah (1965) EA 3

16. Mramago Vs A-G (1979) HCB 24

17. National Pharmacy Ltd V KCC CA No. 2/79

18. Otabong V AG SSCA 6/90 (1992) V KALR 14

19. Mpiima charles V AG C/S No. 980/90

20. Auto garage and Anor. V Motokov [supra]

21. Iga V MUK (1972) EA 65

22. Francis Nansio Micah V Nuwa Walakira (1993) VI KALR 14

TOPIC 13 INTERROGATORIES, DISCOVERY, INSPECTION, FURTHER

AND BETTER PARTICULARS (SA)

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 1. Namubiru Lyton V Uganda Telecom Ltd HCMisc. Application No.4 of
2004

2. Unicof Ltd V Intefreight Forwarders [1997-2000] UCLR 447

3. Said Tibazarwa V UCB[1997-2000] UCLR 383

4. Hon. MR. Justice Remmy Kasule V Jack Sabiiti & 2 Others HCCS No.
230 of 2006

5. Andrew Lutakome & Anor. V Edward Rugumayo & Othrs [1993] 1 KALR
118

6. Esperito Mubiru V UCB (1972) HCB 302

7. Joshi V Uganda Sugar Factory Ltd [1968] EA 570

8. Motar Mart Exchange V Standard General Insurance co Ltd

9. Effren Guerra V Standard General Insurance Co. Ltd

10. White V Spafford & Co. [1991] 2 K.B 241

11. Juma Kenyi V Grindlays Bank (U) Ltd [1982] HCB 16

12. Dresdenor Bank V Sango Bay Estates [1971] ULR

13. EAGEN Co. Ltd V Standard Bank Ltd HCS No. 888/1971

14. Eastern Radio services V Tiny tots [1967] EA

15. UCB V Akamba Ug Ltd(1972) 4 KALR 28

16. Horizon Coaches Limited V Francis Mutabazi, Kamara Deodota

Mutabazi, Sharon Mutabazi

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TOPIC I

1.0 INTRODUCTION TO CIVIL PROCEDURE AND PRACTICE IN UGANDA.

The law of civil procedure deals with the process through which legal disputes
are resolved, either through formal court system or alternative dispute
resolution mechanism. Civil procedure as opposed to substantive law deals
with the enforcement of legal obligations and rights that accrue under
substantive law.

Civil litigation connotes a process through which civil disputes are resolved
through the court system; right from pre-trial, trial, judgment, and post
judgment and appellate or remedial system.

1.1 Importance of the law of civil procedure.

i) The law of civil procedure regulates the steps, which must be taken by
the party in litigation
ii) From the time the party commences the legal proceedings up to the
time of enforcement of judgment, the law entails determination of a
document a party must use to set the law in motion i.e. filing
documents by the party
iii) It entails the ways in which the party must bring the proceedings to
his adversary (exchange of pleadings)
iv) It promotes transparency throughout the trial. To this end the rules
are intended to bring light in all matters in dispute to enable parties
prepare their cases appropriately as opposed to be taken by surprise
or being ambushed.

1.2 Applicability of the civil procedure Act and the Rules.

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The law of civil procedure is principally regulated by the civil procedure Act and
the Civil Procedure Rules as well as the Magistrate’s Court Act and the Rules
made under the 3rd Schedule.

The Civil Procedure Act and the Rules apply to the High Court, Chief
Magistrate’s Court and Grade 1 Magistrate Courts. However in so far as Grade
II magistrate Courts are concerned, the applicable rules of procedure are set
out in the 3rd Schedule of the Magistrate’s Court Act.

According to section 219 MCA, every suit or appeal in the court of a chief
magistrate or a magistrate grade I shall be instituted and proceeded with in
such manner as may be prescribed by rules applicable to suits and appeals
instituted in the High Court, and every suit in the court of a magistrate grade II
shall be instituted and proceeded with in the manner prescribed by the rules
set out in the Third Schedule to the Act.

Read Nakabago Co-operative Society vs. Livingstone Kyanga [1992] III

KALR 137 for the principle that the CPR (specifically 0.36 on summary
procedure) are inapplicable to a court presided over by a magistrate Grade II.

Read Yeseri Waibi vs. Edisa Lisi Byandala 1972 HCB 281 for the principle
that the CPR are not applicable to courts presided over by a Grade II
magistrate, the applicable rules are in 3rd schedule to the MCA.

Scope of the CPA and Rules and other Applicable legislations and Rules of
Procedure.

The CPA and the rules are not exhaustive on all procedures in civil legal
disputes, reference may be made to other applicable legislations and rules
especially where such legislation specifically expressly provides for special
procedure to be adopted in matters arising under the legislation.

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Read, Re Kenshavlal Punja Shah (1955) 22 EACA 381 for the principle that
it is a rule of construction that every procedure is to be understood as
permissible till it is shown to be prohibited by law.

Procedure in the CPA and CPRs may apply if a remedy is created but no
procedure is provided for in any other specific legislation. Read Oil Seeds (U)
Ltd vs. A.G CACA No. 127/2003 for the principle that where no specific
procedure is provided for under a particular legislation, the appropriate
procedure in the CPA may be adopted.

Read Charles Harry Twagira vs. AG [2008] HCB 28 for actions under Article
50 for enforcement of human rights being commenced by either a plaint or for
declarations by way of Notice of Motion.

Where no procedure is available, the High Court may adopt procedure that is
appropriate in the circumstances. Section 39(2) of the Judicature Act provides
that where in any case no procedure is laid down for the High Court by any
written law or by practice, the court may, in its discretion, adopt a procedure
justifiable by the circumstances of the case. Read LDC vs. Edward Mugalu &
Anor [1990-91] KALR 103 on the procedure of revision not provided for by
any law and can be by way of a formal letter. Also Kakooza Mutale vs. AG and
Anor [2001-2005] HCB 110 on applicability of s. 39 Judicature Act.

1.3 Inherent powers of the court and limitations (s.33 judicature

Act and s.98 CPA)

In case no remedy is provided for in the Act or the rules, recourse is had to
s.98 of the CPA which permits court to grant any remedy or make order as
interest of justice may dictate.

Read Aya Investments vs. M/s. Kibeedi & Co. Advocates [2008] HCB 130,
Adonia v Mutekanga (1970) EA 429, 432; G.W Katakwandi vs. Biraro (1977)

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HCB; Standard Chartered Bank vs. Clouds 10 Ltd [1988-90] HCB 84 for the
principle that the inherent jurisdiction enshrined in s.98 of the CPA cannot be
invoked where an express remedy is provided for under any law.

1.4 Rules of Procedure and Substantive Justice (Article 126(2) (e)

of the Constitution

The rules of procedure laid down the process and documents required to obtain
a particular relief through the courts of law. The rules therefore regulate the
manner in which suits are commenced in courts of law and requisite
documents and form that must be adopted. The issue that arise is whether non
compliance with the procedure and form set out in the rules is capable of
invalidating such proceedings. The rules apply subject to the constitution. Art.
126 (2) (e) is normally invoked to cater for administration of justice without
undue regard to technicalities.

Read Francis Bwengye vs. Haki Bonerav HCT-CV-CA No. 033/2009

Uganda Crop industries Ltd vs. URA HCCS No. 05/2009

Proline Soccer Academy vs. Lawrence Mulindwa & 4 Ors HCMA No. 0459/2009

Limitation of Art 126(2) (e)

In administration of justice and determination of substantive disputes, courts

are enjoined not to compromise justice by placing significant reliance on rules
of procedures. Nevertheless Art. 126(2) (e) is not intended to wipe out the
applicable rules of procedure

In Utex Industries Ltd vs. A.G SCCA NO.52/1995 regarding how slavishly
Art. 126(2)(e) of the constitution has been and continues to be applied when
questions to follow procedure arises in a proceeding, the Supreme Court had
this to say;

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‘Regarding Art 126(2)(e)….we are not persuaded that the constituent
Assembly Delegates intended to wipe out, the rules of procedure of our
courts by enacting Article 126(2)(e). Para (e) contains a caution against
undue regard to technicalities. We think that the article appears to be a
reflection of the saying that rules of procedure are handmaids of justice-
meaning that they, should be applied with due regard to the
circumstances of each case’.

The above observation was repeated by Supreme Court of Uganda in Kasirye,

Byaruhanga & Co. Advocates v. UDB SCCA No.2/1997 and added; ‘that a
litigant who relies on the provision of Art. 126(2)(e) must satisfy court, that in
the circumstances of the particular case before court it was not desirable to
pay undue regard to a relevant technicality. Art 126(2) (e) is not a magic wand
in the hands of a defaulting litigant’’.

Read Athanassus Kivumbi Lule vs. Hon. Emmanuel Pinto CA const.

Petition No. 5/1995 for the principle that Art. 126(2)(e) was not intended to
wipe out rules of procedure of courts but the rules should be applied as hand
maids of justice depending on the circumstances.

Art. 126(2) is not of general application and will only be invoked in fitting
circumstances. Read Tororo Cement Co. Ltd vs. Frokina International Ltd
SCCA No. 2 of 2001. –Art. 126 was not meant to encourage sloppy drafting of
pleadings.

1.5 Subject Matter of Adjudication of Civil Procedure

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It is a cardinal doctrine of jurisprudence that a court of law will not adjudicate
hypothetical questions – namely, those concerning which no real, live dispute
exists, or one which is purely academic or speculative in nature.

In the case of Legal Brains Trust (LBT) Ltd versus Attorney General Ref. No.
10/2011 and Appeal No. 4 of 2012 (EACJ) the East African Court of Justice
Appellate division at Arusha stated as follows;

‘In this regard, it is a cardinal doctrine of our jurisprudence that a

court of law will not adjudicate hypothetical questions- namely,
those concerning which no real, live dispute exists. A court will not
hear a case in the abstract, or one which is purely academic or
speculative in nature-about which there exists no underlying facts in
contention. The reason for this doctrine is to avoid the hallow and
futile scenario of court engaging its efforts in applying a specific law
to a set of mere speculative facts. There must be pre-existing facts
arising from a real live situation that gives rise to, for instance, a
breach of contract, a tortuous wrong, or other such grievance on the
part of one party against another. Absent such a dispute, the
resulting exercise would be but an abuse of the court’s process.’’

In the case of Uganda Telecom Limited Versus Wand Telecom Limited

HCCA No. 28/2015 the judge cited Musota Stephen J in An Application for
Judicial Review between Julius Maganda vs. National Resistance Movement
High Court Miscellaneous Application No. 154 of 2010 with the learned judge
having this to say;

’’Courts of law do not decide cases where no live dispute between parties are in
existence. Courts do not decide cases or issue orders for academic purposes
only. Court orders must have practical effects. They cannot issue orders where
the issues in dispute have been removed or merely no longer exists’’. That this

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position was confirmed by the Court of Appeal in the case of Human Rights
Network for Journalist and Another vs. Uganda Communications Commission
& Others Miscellaneous Cause No. 219 of 2013. That it would appear clear that
the instant appellant is engaged in an exercise in futility for it is evident that
the main cause from which the instant appeal arise are no longer in existence
and the rights of the parties have since been determined. That to peruse an
appeal on matters which have since lost its backbone would in my view be an
exercise in futility and thus merely academic and would add no value to the
jurisprudence of the courts.

1.6 Standard of proof in civil cases

It is trite law that proof in civil matters which is sufficient to justify a finding of
fact is on the balance of probabilities. In the case of Nsubuga vs. Kavuma
[1978] HCB 307 it was held that in civil cases the burden lies on the plaintiff
to prove his or her case on the balance of probabilities.

Section 101(1) of the Evidence Act (Cap.6) provides that whoever desires
any court to give judgment as to any legal right or liability on the existence of
facts which he or she asserts must prove that those facts exist.

In the case of Baluku & Anor vs Bwambale HCCA 49/2016 held that in all
civil cases the burden of proof lies on the plaintiff or appellant to prove their
case on a balance of probabilities. A party can only be called to dispute or
rebut what has been proved by the other side. This is so because the person
who alleges is the one who is interested in court believing their contention.
[See Nsubuga vs. Kavuma [1978] HCB 307, Sebuliba vs. Co-op Bank (1982) HCB
19 and Lugazi Progressive School & Ors (2001-2005) HCB 121.

Meaning of balance of probabilities

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The civil standard of proof is on a balance of probabilities. Saying something is
proven on a balance of probabilities means that it is more likely than not to
have occurred.

In the case of Kala vs Ogobilo Civil Appeal No. 0009 of 2014 Justice Mubiru
stated that it is trite law that in civil matters which is sufficient to justify a
finding of fact is on the balance of probabilities. The meaning of this standard
was explained by Lord Birkenhead L.C. in Lancaster v Blackwell Colliery
Co. Ltd 1918 WC Rep 345, thus:

‘If the facts which are proved give rise to conflicting inferences of equal degree of
probability so that the choice between them is a mere matter of conjecture, then,
of course, the applicant fails to prove his case because it is plain that the onus in
these matters is upon the applicant. But where the known facts are not equally
consistent, where there is ground for comparing and balancing probabilities as to
their respective value, and where a reasonable man might hold that the more
probable conclusion is that for which the applicant contends, then the Arbitrator
id justified in drawing an interference in his favour.’’ That this standard is
satisfied if, and only if, the court upon considering the evidence adduced by the
party on whom the burden lies, alongside all the other evidence before it,
believes that the existence of the fact sought to be proved is so probable that a
prudent man ought, under the circumstances of the particular case, to act
upon the supposition that it does exist. Where a reasonable man might hold
that the more probable conclusion is that, for which the plaintiff contends,
then the court is justified in making a finding in the plaintiff’s favour.

Standard of proof of fraud.

The proof of fraud requires a standard beyond the balance of probabilities. In

the case of Sebuliba versus Coop bank Ltd (1987) HCB 130, it was stated
that;

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 ‘The standard of proof in fraud cases is beyond mere balance of
probabilities required in ordinary civil cases though not beyond
reasonable doubt as in criminal cases.’

In the case of Kazzora vs. Rukuba SCCA No. 13 of 1993 Order JSC held that
fraud must be strictly proved; and although the standard of proof may not be
so heavy as to require beyond reasonable doubt, something more than a mere
balance of probabilities is required.

Similarly, in Kampala Bottlers v Damanico, Civil Appeal No. 22 of 1992

Wambuzi CJ stated that fraud must not only be proved to a degree higher than
a mere balance of probabilities, but must be proved against the beneficiary,
either directly by actual fraud on the party of the beneficiary or indirectly with
his knowledge or consent or participation in some way.

Pre-Entry Exam 2010/2011

Qn. 39 While in criminal cases, prosecution must prove a case beyond

reasonable doubt, in civil suits, the plaintiff must prove the case…………….’’

Pre-Entry Exam 2012/2013

Qn. 50 A Plaintiff filed an application by motion instead of summons in

chambers as prescribed by the relevant rules. Is the mistake fatal? Give a
reason for your answer

Pre-Entry Exam 2013/2014

Qn. 50 List the courts to which the Civil Procedure Rules ordinarily apply

Pre-Entry Exam 2017/2018

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Qn. 1 What is your understanding of the expression rules of procedure are
handmaidens of justice?

TOPIC II (Not updated yet)

Civil litigation and Alternative Dispute Resolution (ADR).

Alternative Disputes Resolution is a process designed to help the parties

amicably resolve disputes without need for formal legal proceedings. The new
world order has moved away towards ADR rather than competition and rivalry.
The conception of a lawyer as a gladiator who must fight to death is
disappearing and is being replaced by the newer conception of a lawyer as a
mediator, a problem solver, an architect and an engineer of the appropriate
dispute resolution technique. This has prompted provision of the ADR at an
early stage.

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Parties are encouraged to use ADR procedure wherever appropriate, the goal is
to preserve for the court only those disputes which are better suited by the
courts and to avoid overloading and paralyzing the courts with cases that do
not necessarily require the unique capabilities of courts.

When a lawyer is faced with a dispute, he need not have to run to court, his
first duty is to evaluate a variety of possible actions for resolving the dispute
and must advise on the options that seem appropriate for solving the problem.

Lawyers must learn about the scope of options that are available and how each
works. They must learn how to use a combination of strict adjudicating rules
as well as new non adjudicating techniques. He must know the alternative
methods of dispute resolution and know their advantages and disadvantages.

ADR is a range of processes designed to aid the parties in resolving disputes

without a need to a formal judicial proceedings and may take a form of
mediation, aprocess by which a neutral third person facilitates communication
between parties to a dispute and assists them in reaching a mutually agreed
resolution of the dispute. The Judicature (mediation) rules 2013 requires
courts to refer every civil action for mediation before proceeding for trial. See
the essence of mediation in High Court Commercial Division, Read the case of
Betuco (U) Ltd & Anor. Vs. Barclays Bank of Uganda Ltd HCT-00-CC-MA-
0507-2009.

It may take the form of Arbitration and conciliation. Arbitration is a process in

which a third party who is neutral and knowledgeable in the area of dispute
after hearing evidence and arguments of the parties in a relatively informal
hearing makes a binding decision resolving a dispute. See, the Arbitration and
Reconciliation Act Cap 4. EADB Vs. Ziwa Hotcultural Exporters Ltd [1997-
2000] UCLR 247; Fulgencious Munghereza vs. Price Water House Coopers

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[1997-2000] UCLR 45; see the attitude of courts towards parties compliance
with arbitration clauses.

Mediation and arbitration at conferencing and the significance of scheduling

conference, see; Tororo cement Co. Ltd vs. Frokina International Ltd SCCA
No. 2 of 2001. Tsekooko JSC holding that O.11CPR provides for the holding of a
scheduling conference in civil cases and that the requirement is mandatory. That
the principal objective being to enable court to assist parties to dispose of cases
expeditiously by sorting out points of agreement and disagreement or assessing
the possibility of mediation, arbitration and other forms of settling a suit. See;
Stanbic Bank Ltd Vs. Uganda Cros Ltd SCCA 4/2004.

ADR is necessary for the following reasons;

i) For a speedy trial and resolution of disputes. Parties are involved in

finding a common ground. Resolution of disputes is bound to be quick
and acceptable by the parties as opposed to a conventional trial.
ii) ADR reduces the case load in court
iii) ADR reduces the legal costs of parties. It is cheaper in terms of
expenses and eases the pressure on the public expenses as the state
will commit lesser funds on the judiciary
iv) ADR serves to enhance public satisfaction with the judiciary as
parties participate in ensuring that the decision arrived at is beneficial
to them. Resolution is tailored to each person’s needs.
v) ADR makes it easier with parties to comply with resolutions with
which they participated.
vi) Even where ADR may not resolve the dispute conclusively, it may
serve to narrow the dispute and tailor the remaining litigation
procedure.
vii) Unlike conventional litigation, ADR focuses on substantial issues. In
practice the Centre for Arbitration and Dispute Resolution has been
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 created to conduct the dispute resolution. It is closely linked to the
Commercial Division of the High Court that it complements its work
although it is not part of the court institutionally.
viii) Enables privacy

When all these methods of resolving disputes fail then the parties return to
litigation.

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TOPIC III

THE STRUCTURE & COMPETENCE OF COURTS -JURISDICTION OF

COURTS:

Read;; Article 139 (1) Constitution, S.14 Judicature Act

Read; also the Arbitration & Conciliation Act Cap 4

Read; The Employment Act 2006

Read; Jurisdiction of Registrars of the High court; O.50 CPRs and

Judicial Powers of Registrars (Practice Direction No. No.1 of 2002

Read; Kuloba; Judicial Hints on Civil Procedure

Read; The Magistrates Courts (Magisterial Areas) Instrument No.45/2007

The Magistrates Courts (Magisterial Areas) Instrument Jan/20 17

The High Court (Circuits) Instrument No.20/2004

Meaning of Jurisdiction of Courts

Any person proceeding to defend his rights in the courts of law otherwise
referred to as litigation has to take into account certain factors before
commencement. The first aspect is about jurisdiction. Jurisdiction in simple
language means the power of court or a judge to hear and entertain an action,
matter or other proceedings Alamanzani Zziwa v Angello Kintu HC MIS app
No 37/1993; See also; Mukasa v Muwanga HC Misc App No. 31 / 1994.

In the case of Uganda Revenue Authority (URA) vs. Rabbo Enterprises (U)
Ltd & Anor SCCA No. 12 of 2004 the Supreme Court defined the term
jurisdiction as defined in Words and Phrases Legally defined, Volume 3, I-N at
page 13 to mean; Authority which court has to decide matters that are before it
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or take cognizance of matters presented in a formal way for its decision. The
limits of this authority are imposed by statute, charter or commission under
which court is constituted and may be extended or restricted by the like means.
If no restriction or limit is imposed the jurisdiction is said to be unlimited. A
limitation may be either as to the kind and nature of the actions and matters
which the particular court has cognizance or as to the areas over which the
jurisdiction shall extend, or it may partake both these characteristics. If the
jurisdiction of an inferior court or tribunal... depends on the existence of a
particular state of facts, the court or tribunal must inquire into the existence of
the facts in order to decide whether it had jurisdiction;...where the court takes it
upon itself to exercise a jurisdiction which does not possess, its decision amount
to nothing. That following the above definition, it is trite principle of law that
the jurisdiction of a court must be found in statute.

In the case of Ozuu Brothers Enterprises vs. Ayikoru Milka H.C.C.Revision

No. 2 of 2016 Justice Mubiru stated that Jurisdiction is a term of
comprehensive import embracing every kind of judicial action. The term may
have different meanings in different contexts. It has been defined as a limit
imposed on the power of a validly constituted court to hear and determine
issues between person seeking to avail themselves of its process by reference to
the subject matter of the issue or to the persons between whom issues are
joined or to the kind of relief sought (See: A.G of Lagos State v Dosunmu (1989)
3 NWLR pt. 111, pg. 552 SC) It therefore means and includes any authority
conferred by the law upon the court to decide or adjudicate any dispute
between the parties or pass a judgment or order.

Competence, Composition of Courts and their Establishment

A court must have both jurisdiction and competence in order to be properly

seized of a cause or matter.

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In the case of Erias Lukwago Lord Mayor KCCA Versus AG & KCCA Civil
Application No. 06/2014 (SC) it was held that the Supreme Court has no
jurisdiction to entertain an appeal from a decision of a single justice of an
appeal given the express provisions of section 12 Judicature Act. That the right
of Appeal from Court of appeal to the Supreme Court is provided for under
s.6(1) J.A. The quorum of the Court of Appeal is provided in Art. 135(1) in
constitution of un even number not being less than 3 members of the Court.
That while the quorum of court of Appeal is three judges, section 12 J.A
enables a single judge of Court of Appeal to exercise any power vested in the
Court of Appeal in any interlocutory cause or matter before the Court of
Appeal. That a person dissatisfied with a decision of a single justice shall be
entitled to have matter determined by a bench of there justices of the Court of
Appeal. The substantial issue was whether a decision or order of a single judge
of the Court of Appeal is appealable to the Supreme Court. It was held that
such an appeal is not possible because of section 12(2) J.A. That the
appropriate action the applicant can take is to refer the matter to a bench of
three judges of the Court of Appeal for review. That bench has powers to vary,
reverse or confirm the decision of a single judge. Thereafter, the applicant can
appeal to the Supreme Court against the decision of the three judges of the
Court of Appeal.

In the case of Ozuu Brothers Enterprises vs. Ayikoru Milka H.C.C.Revision

No. 2 of 2016 Justice Mubiru stated that a court must have both jurisdiction
and competence in order to be properly seized of a cause or matter. That
whereas jurisdiction is a creature of a statute and is the power conferred on a
court by statute or the constitution, a court is competent when;

1) It is properly constituted with respect to the number and qualification of

members

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 2) The subject matter of the action is within its jurisdiction and there is no
feature in the case which prevents the court from exercising its
jurisdiction (such as limitation or lack of capacity of the parties)
3) The action is initiated in compliance with the rules of procedure
4) Any condition precedent to the exercise of its jurisdiction has been
fulfilled.

Sources of Jurisdiction.

Jurisdiction of a court is not a matter for implication but must be prescribed

by law. The jurisdiction of court of record is set out in the constitution and
such courts can appropriately determine matters falling within their
jurisdiction. ; In the case of Ahamed Kawooya Kangu V Bangu Aggrey Fred
and Anor [2007] HCB 35 SC. Justice Bart Katureebe held that jurisdiction of
the Court is not a matter of implication but must be prescribed by law.

Courts are established directly or indirectly by the constitution and their

respective jurisdictions are accordingly derived from the constitution or other
law made under the authority of the constitution. Baku Raphael Obudra and
Obiga Kania v AG SC court. App No. 1/2005 Mulenga JSC held that courts
are established directly or indirectly by the constitution and that there
respective jurisdiction are accordingly derived from the constitution or other
laws made under the authority of the constitution.

Jurisdiction and Pleadings

In pleadings, it is a requirement that the parties plead facts which bestow

jurisdiction upon the court;-O.7 r 1 (f).

In the case of James Fredric Pool Nsubuga C/o. Kizito & Co. Advocates vs.
A.G H.C.C.S No. 1296/87 Justice Okello (as then he was) held that O.7r1 (f)
CPR clearly imposes on the plaintiff a duty to state in his plaint facts showing

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that the court has jurisdiction in the matter and a mere assertion by the
plaintiff in the plaint that the court has jurisdiction is not enough, the
important thing is that facts showing that the court has jurisdiction must be
stated in the plaint. This view was applied in Alexander Mutongole V NYTIL
CA No. 94 of 1968(1971) HCB 114; See also Bisuti V Busoga District
Admin HCCS No. 83/1969

Where a court entertains a matter falling outside its constitutional or statutory

mandate, it will be assuming jurisdiction not given to either by Parliament or
any other law; A court cannot and should not exercise jurisdiction not given to
it by law; Athanassus Kivumbi Lule v Hon. Emmanuel Pinto CA const.
Petition No. 5 /1995 the court found that a court cannot confer jurisdiction
upon itself and where a court that has no jurisdiction entertains the matter,
any proceedings arising there from is a nullity.

No court can confer jurisdiction upon itself and if it does, such proceedings are
a nullity, and it is well established principle of the law that judgment of a court
which acts without jurisdiction is a nullity. Desai v Wansaw (1967) EA 351

However, the courts are obliged and mandated to exercise their respective
jurisdiction in accordance with the law: Makerere University V Rajab Kagoro
[2008] HCB 103

General rule on Jurisdiction in Civil Matters:

S.5 CPA. Any court shall subject to the provisions of this Act have jurisdiction
to try all suits of civil nature excepting suits of which its cognisance is
expressly or impliedly not barred by the law. Read and Compare S. 208 of the
MCA.
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Pecuniary and Geographical Jurisdiction.

Jurisdiction constitutes both geographical and pecuniary jurisdiction; Abbey

Semakula V Eldad Rubarenzya [1996] II KALR 22 Mangalita Namirembe
V Kalamatu Tebukola [1995] IIIKALR 84;

Geographical jurisdiction, ‘Lex lousu rule’, S.12 CPA provides that suits are
instituted where the subject matter is situate subject to the pecuniary or other
factors in law. Pecuniary jurisdiction is also provided for under S.4 CPA that
the Act shall not operate to give court jurisdiction over amount in excess of
pecuniary limit.

Jurisdiction of local council Courts.

Jurisdiction of local council courts is regulated by the local council Act 2006
that sets out the hierarchy of local council courts from L.C.1 to L.C. III and
subsequently to the Chief magistrates Court.

Section 10 of the Local Council Courts Act provides for the legal
jurisdiction of L.C courts.

Local council court have jurisdiction for the trial and determination of

(a) Causes and matters of a civil nature specified in the Second Schedule to
this Act provided the value of the subject matter in dispute does not exceed
one hundred currency points (UGX.2,000,000/-.) These include; Debts,
Contracts, Assault or assault and battery, Conversion, Damage to property,
and Trespass

(b) Causes and matters of a civil nature governed only by customary law
specified in the Third Schedule and not restricted by the monetary value of the
subject matter in dispute. These include; disputes in respect of land held
under customary tenure, disputes concerning marriage, marital status,

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separation, divorce or the parentage of children, disputes relating to the
identity of a customary heir, and Customary bailment.

Read; Joweria Nalukwago v Admin. General HCC No 102 /1995 / 1997 IU

KALR 139 for the principle that Local council courts exercising jurisdiction in
land disputes relating customary tenure are not restricted by the monetary
value of the subject matter.

In the case of Alanyo & Anor vs. Angut & Anor HC Civil Appeal No.
0025/2009 held that the jurisdiction of local council courts regarding land
matters is provided for under s. 10 of the local council Act, 2006 and the 3 rd
schedule to the Act restricts jurisdiction to customary land. That the
proceedings in the LC II were null and void abinitio for lack of jurisdiction as
the subject matter of the suit was title land in Gulu municipality. Much as the
agreement described it as customary land, the fact remains it was not a
customary land. LCII court has original jurisdiction in case it was a customary
land of which it was not. That a court without jurisdiction cannot make any
legally binding orders.

(c) Causes and matters arising out of infringement of bye-laws and Ordinances
duly made under the Local Governments Act;

(d) matters specified under the Children Act;

(e) matters relating to land.

Section 11 of the Local Council Courts Act provides for where to institute
suits. That every suit shall be instituted in the first instance in a village local
council court, if that court has jurisdiction in the matter, within the area of
whose jurisdiction—

(a) the defendant actually resides at the time of the commencement of

the suit; or
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 (b) where the cause of action in whole or in part arises; or

(c) in the case of a dispute over immovable property, where the property
is situated.

However S.76A (1) of the Land (Amendment) Act 2004 provides as follows;

“Notwithstanding the provisions of Sections 5,7 and 29 of the Executive

Committee (Judicial Powers) Act, the parish or Ward Executive Committee Courts
shall be courts of first instance in respect of land disputes.”

Justice Musota Stephen stated considering the jurisdiction of Local

Council court in the case of Mutonyi Margaret Wakyala& Ors Vs. Tito
Wakyala & Ors HCT-04-CV-CR-0007-2011 stated as follows;

Jurisdiction is determined by S.10 and 11 Local Council Courts Act (LCCA) and
by implication S.32 which determines how appeals lie from LC.I to LC.II to LC.III
etc.  But more specifically, jurisdiction of LC Courts in land matters is conferred
by S.76A (1) of the Land (Amendment) Act 2004. 

It provides “Not withstanding the provisions of Ss 5,7 and 29 of the Executive

Committee (Judicial Powers) Act, the parish or Ward Executive Committee Courts
shall be courts of first instance in respect of land disputes.” That S.5, 7 and 29
are similar to S.10, 11 and 32 of the LCCA which amended the Executive
Committee (Judicial Powers) Act.

The issue was Whether S.22 (5) of the Local Council Courts Act confers upon
LC.III Court powers to determine land disputes as a court of first instance and If
so, how does that affect S.76A of the Land (Amendment) Act, 2004 and how
does it affect the jurisdiction of the LC.II Courts.”

That the law which establishes and outlines the composition of Local Council
Courts is The Local Council Courts Act 2006.  This Act has to be read together

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with The Local Council Courts Regulations 2007 which lays down the
procedure to be followed while filing cases in the local council courts and how
the hearing of the said cases have to be conducted in the respective courts.
That under S.10 LCCA, subject to any other written law every local council
Court shall have jurisdiction for the trial and determination of---

a)           Causes and matters of a civil nature specified in the second schedule
to the Act.  The second Schedule lists the matters as. 1.     Debts 2.    
Contracts 3.     Assault of Assault and battery 4.     Conversion 5.     Damage
to property 6.     Trespass.

b)       Causes and matters of a civil nature governed by customary law

specified in the third schedule and these are (i)                disputes in respect of
land held under customary tenure; (ii)             disputes concerning marriage,
marital status, separation, divorce or the parentage of children; (iii)          
disputes relating to the identity of a customary heir; (iv)           customary
bailment.

c)        Causes and matters arising out of infringement of bye laws and
ordinances duly made under the Local Government Act.

d)       Matters specified under the Children Act.

e)        Matters relating to land.

That S.10 LCCA goes ahead to specify the pecuniary jurisdiction for matters
specified in the second schedule to be of a value not exceeding one hundred
currency points and those in schedule three to be of unrestricted monetary
value.  According to the first schedule of the LCCA a currency point is
equivalent to twenty thousand shillings. That S.11 of the LCCA provides for
where to institute suits thus:- “(1) Every suit shall be instituted in the first

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instance in a village local council court if that court has jurisdiction in the
matter……”

That this jurisdiction envisages territorial and pecuniary jurisdiction and

location where the defendant actually resides at the time of commencement of
the suit or where the cause of action in whole or in part arises; or in the case of
immovable property, where the property is situated. Therefore regarding
whether an LC.III Court has original jurisdiction, the answer is found in
Regulation 32 of the Local Council Courts Regulations which amplifies S.11
LCCA.  It provides that:- “(1) Every suit shall be instituted in the first instance in
a village local council court, within the area of whose jurisdiction the defendant
resides at the time of the suit or where the cause of action in whole or part arises
or where the immovable property in dispute is located. That neither S.22 (5)
LCCA nor Ss.10 and 11 confer upon the LC.III Court powers to act as a court of
first instance.  The jurisdiction of the LC.III Court is found in S.32 which deals
with the mode of appeal.  A party dissatisfied with a judgment or order of a
local Council Court may subject to the provisions of S.32 or any other written
law appeal against the judgment or order (b) ……… of a parish local council
court to a town division or sub-county council court.” That the respective LC.III
Courts acted without jurisdiction when they heard the above cases as courts of
first instance.  Their actions were null and void ab initio and will be set aside
on that account respectively.

That regarding the second question (If so, how does that affect S.76A of the
Land (Amendment) Act, 2004 and how does it affect the jurisdiction of the LC.II
Courts) this has to be considered in light of the enactment of the Local Council
Courts Act which has been extensively considered herein above vis-a-vis S.76A
of the Land Amendment Act 2004 which gave the LC.II Courts power to handle
land matters as courts of first instance.  That there appear to be concurrent in
land matters given to both the LC II Courts under the Land Amendment Act

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and LC I Courts the Local Council Act because the latter Act did not expressly
repeal the former. S.10 (1) of the LCCA commences thus:-

“(1) Subject to the provisions of this Act and of any other written law every local
council court shall have jurisdiction for the trial and determination of
……………… matters relating to land.”

That it is trite law that where an earlier statute is in conflict with a later one,
the later statute prevails.  This is a conclusion based on the assumption that
the Legislature keeps abreast with the needs of the time and is wiser as time
passes.  Uganda Revenue Authority v. Uganda Electricity Board HCT-CA-
001-2006. In Re Williams (1887) 36 ch. D 537 at 578 held, “And it appears
to be a Constitutional necessity as well as an established rule of construction
that the last utterances of the legislature should prevail over earlier statutes
inconsistent with it.”

That the Land (Amendment) Act No.1 of 2004 did allow the LC.II Court to
handle matters concerning land disputes as a court of first instance removing
jurisdiction from the LC.I Court.  However by virtue of S.11 of the LCCA No.13
of 2006 this matter was revisited by the Legislature and as of now jurisdiction
was restored to the LC.I Court. Suits have to be commenced in the LC.I court
as a court of first instance.  While there is no express repeal of the powers of
the LC.II Courts under the Land Act in the LCCA, there is implicit or implied
repeal thereof rendering the powers of LC.II Courts stale which cannot be
enforced by any court of law. Therefore the LCCA which is a later statute
repealed S.76A of the Land Act by implication thus removing powers from the
LC. II Courts acting as court of first instance in land matters.  It also
completely reformed the appeal process in land matters as provided for under
S.32 of the LCCA. Consequently LC. II Courts no longer have jurisdiction in
land matters as courts of first instance.

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However Read and Compare with the case of Dima DomnicPoro Vs Inyani &
Anor (CIVIL APPEAL No. 0017 OF 2016) Justice Mubiru held that at the time
of these proceedings, the law in force was The Local Council Courts Act,
2006 which under section 11 (1) provided as follows; (1)          Every suit shall
be instituted in the first instance in a village local council                           
court if that court has jurisdiction in the matter……” That the implication of
that provision was that the proceedings ought to have began at the L.C.1 Court
level. However, section 76A of The Land Act (introduced by section 30 of The
Land (Amendment) Act, 2004), divested L.C. I Courts of primary jurisdiction
over disputes in land, providing instead that “the Parish or Ward Executive
Committee Courts shall be the courts of first instance in respect of land
disputes.” That the impact of that amendment was considered
in BusingyeJamia v. Mwebaze Abdu and another, H. C. Civil Revision No. 33 of
2011, which was cited with approval by the Court of Appeal in NalongoBurashe
v. Kekitiibwa, C. A. Civil Appeal No. 89 of 2011 where it was held that as a
result of that amendment, the L.C.II Court had original jurisdiction to hear and
determine disputes over land.

Jurisdiction of the Magistrates’ Courts:

See the distinction between pecuniary and geographical jurisdiction of

Magistrate’s courts; See also considerations in determining the court that has
jurisdiction.

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In the case of Ozuu Brothers Enterprises vs. Ayikoru Milka H.C.C.Revision
No. 2 of 2016 Justice Mubiru stated that the subject matter civil jurisdiction
of Magistrate Courts is conferred by s. 208 of the MCA Cap 16 which provides
as follows;

‘Every magistrate’s court shall, subject to this Act, have jurisdiction to try all
suits of a civil nature excepting suits of which its cognizance is either expressly
or impliedly barred; but every suit instituted in a magistrate’s court shall be
instituted in the court of the lowest grade competent to try and determine it. ‘
That the import of this provision is that the civil jurisdiction of Magistrate
Courts is all embracing except to the extent it is excluded by an express
provision of law or impliedly by such a provision. Magistrate courts have no
authority to preside over cases where their jurisdiction is explicitly or implicitly
barred [by statute]. They have inherent jurisdiction to hear any civil matter
unless it is expressly or impliedly excluded from their jurisdiction. This general
rule is subject to various limitations found in sections 207, 212-215 MCA
relating to the nature, value, or the locality of the subject matter, the residence
of the defendant, and so forth.

That as regards the jurisdiction of District Labour officers and Magistrate’s

courts in civil matters relating to employment disputes the following can be
deduced,

i) In case of an employment dispute which does not relate to

enforcement of any rights under the Employment Act, 2006, the
remedy lies only in the Magistrate’s Courts.
ii) In case of an employment dispute arising out of a right or liability
under the general or common law and not under the Employment Act,
2006, the remedy lies only in the Magistrate’s Courts
iii) In case of an Employment dispute arising exclusively out of a right or
liability under the Employment Act, 2006, and not the general or
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 common law, the jurisdiction of the Magistrate’s court is concurrent
and alternative to that of the District Labour Officers, leaving it to the
election of the plaintiff concerned to choose his or her remedy for the
relief which is competent to be granted in a particular remedy
available from either forum
iv) In case of an employment dispute arising out of a right or liability
under the Employment Act, 2006, as well as the general or common
law the remedy lies only in the Magistrate’s Courts.

Pecuniary Jurisdiction of the Magistrates’ Courts:

MCA as amended limits the pecuniary jurisdiction of Magistrates courts to

matters whose pecuniary value does not exceed 50m/= for a Chief Magistrate,
20/= for Grade 1 Magistrate and 500,000/= for Grade II Magistrate. See s. 207
(1) a-c

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In the case of National Medical Stores Vs Penjuines Ltd HCT - 00 - CC - CA
– 29, the issues for determination was; whether the trial Magistrate had powers
to award damages and interest over and above the pecuniary jurisdiction, and
secondly, whether the damages awarded by the Magistrate were excessive.
Justice Geoffrey Kiryabwire first considered whether the Magistrate,
considering the subject matter of the suit, had the jurisdiction to try the suit in
the first place. That the principle of law is that jurisdiction is a creature of
statute. In the case of BAKU RAPHAEL OBUDRA & ANOR V AG (SCCA No. 1
of 2005), the Supreme Court found that courts are established directly or
indirectly by the constitution and that there respective jurisdictions are
accordingly derived from the constitution or other laws made under the
authority of the constitution. Furthermore, in the case of ATHANANSIAS
KIVUMBI V HON. EMMANUEL PINTO (Const Pet No.5 of 1998), the court
found that a court can not confer jurisdiction upon itself and where a court
that has no jurisdiction entertains the matter, any proceedings arising there
from are a nullity. That Section 207(1) (b) MCA [as amended by Act No. 7 of
2007] provides for the pecuniary jurisdiction of a Magistrate Grade 1 as
follows; “(1) Subject to this section and any other written law, the jurisdiction of
magistrates presiding over magistrates courts for the trial and determination of
causes and matters of a civil nature shall be as follows—

(b) a magistrate grade I shall have jurisdiction where the value of the subject
matter does not exceed twenty million shillings;” In addition to this, S. 4 of the
Civil Procedure Act (Cap 71) provides as follows; “Pecuniary jurisdiction. Except
insofar as is otherwise expressly provided, nothing in this Act shall operate to
give any court jurisdiction over suits the amount or value of the subject matter of
which exceeds the pecuniary limits, if any, of its ordinary jurisdiction.”

That the general damages were not quantified and therefore, could not be used
as a basis for calculating the value of the subject matter. The value of the

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subject matter as noted in the plaint was the sum of Ushs 13,914,088/= which
fell within the pecuniary jurisdiction of the Magistrate Grade one. That the trial
magistrate had the jurisdiction to entertain the suit. What was left for
determination was whether the award made by the Magistrate was in excess of
his pecuniary jurisdiction. That the magistrate made the following orders in the
judgment; Special damages of Ushs 13,914,088/=,…. general damages of Ushs
25,000,000/= would suffice, Interest rate of 25% per annum on (a) above from
25th October 2007 till payment in full is awarded, Interest rate of 25% per
annum on (b) above from 25th October 2007 till payment in full is awarded,
Costs of the suit to be paid by the defendant to the plaintiff, Ushs 200,000/=
being security for costs paid in MA No. 63 of 2010 to be refunded to the
representative of the plaintiff.”

That it is a settled principle of law that costs are not considered in determining
the pecuniary jurisdiction (ABBEY SEMAKULA v. ELDAD
RUBARENZYE [1996] 2 KALR 22). With regard to damages on the other hand,
the law is that a magistrate cannot award damages over and above the
pecuniary jurisdiction. In the case of JOSEPH KALINGAMIRE V. GODFREY
MUGULUSI [2003] KALR 408, at 410, Musoke-Kibuuka J found as follows,“It
follows, therefore, that when a Grade one magistrate makes an order awarding
general damages the sum of which exceeds the monetary jurisdiction of Ushs
2,000,000/= (now Ushs 20,000,000/=) set by the law in S. 219 of the
Magistrate’s Court’s Act 1970 (now S. 207(1) (b) MCA as amended by Act No. 7
of 2007), such magistrate would be exercising jurisdiction not vested in him.”
That the learned Judge further found that, “In MUBIRU & ORS V
KAYIWA (1979) HCB 212 (CA), the Court of Appeal of Uganda held that, “an
order made without jurisdiction is a nullity”. In the instant case, since the
order of the trial magistrate awarding general damages in the sum of Ushs 2,
400,000/= to the plaintiff was made without appropriate jurisdiction. It was
a nullity ab-initio.” That basing on the authority, the order of the trial

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magistrate awarding general damages of Ushs 25,000,000/= in excess of the
pecuniary jurisdiction of a grade one magistrate was erroneous in law and, is a
nullity.

In the case of Koboko District Local Government v Okujjo

MISCELLANEOUS CIVIL APPLICATION No. 0001 OF 2016, the contention
was that the Magistrate Grade One exercised a jurisdiction not vested in it in
law or acted in the exercise of its jurisdiction illegally or with material
irregularity or injustice when it entered a consent judgment awarding a sum of
shs. 85,000,000/= which is beyond its pecuniary limit of shs. 20,000,000/=
set by s 207(1) (b) of The Magistrates Courts Act (as amended by Act No.7 of
2007), which provides for the pecuniary jurisdiction of a Magistrate Grade One
Court. The question to be determined in this application was whether having
been sanctioned by a court and become a determination of the
controversy which has the force and effect of a judgment, a contract in
which parties make reciprocal concessions in order to resolve their
differences and therefore avoid litigation or where litigation has already
commenced, bring it to an end, is subject to the rules of pecuniary
jurisdiction of courts and therefore can be challenged for lack of such
jurisdiction. This has to be determined within the context of a revision.
Justice Stephen Mubiru stated that One of the “policies of court” is the
question of jurisdiction that it is at once fundamental and over-arching as far as
any judicial proceeding is concerned. That Jurisdiction is the first test in the legal
authority of a court and its absence disqualifies the court from exercising any of
its powers. Jurisdiction means and includes any authority conferred by the
law upon the court to decide or adjudicate any dispute between the parties or
pass judgment or order. A court cannot entertain a cause which it has no
jurisdiction to adjudicate upon. That Jurisdiction must exist at the time of
filing suit or latest at the commencement of hearing. It cannot be conferred at
the time of delivery of judgment for Jurisdiction does not operate retroactively.

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That whereas the general pecuniary jurisdiction of a Magistrate Grade One
court is limited to shs 20,000,000/= set by s 207(1) (b) of The Magistrates
Courts Act (as amended by Act No.7 of 2007), by virtue of s 207 (2), the court
has unlimited jurisdiction with regard to disputes relating to a cause or matter
of a civil nature governed only by civil customary law. That where there is a
high likelihood that general damages, when assessed may be beyond the
pecuniary jurisdiction of the magistrate’s court, the correct procedure is to
invoke s. 218 (1) (b) (i) of The Magistrates Courts Act, and / or s 18 (1) (b) (i)
of The Civil Procedure Act and apply for the suit to be transferred to a court
with competent jurisdiction, otherwise if the court proceeds to award damages
beyond its pecuniary jurisdiction, the award will be a nullity. That Jurisdiction
cannot be conferred on court by consent of the parties and any waiver on their
part, cannot make up for the lack of jurisdiction (See Assanard and Sons (U) Ltd
v East African Records Ltd [1959] EA 360). In Edith NantumbweKizito and three
others v Miriam Kuteesa C.A. Civil Application No. 294 of 2013, the Court of
Appeal cited the following authorities with approval; The Canadian case
of Manitoba Windmills v Vigier [1909] 18 Man LR.427, where it was held
that; ‘’It is not competent for parties to a contract to agree to confer jurisdiction
upon court of any judicial division other than one in which under statute any
action arising out of a breach of the contract may be brought, and if such action
is brought in any other court the judge should refuse to try it on the ground of
want of jurisdiction” And the decision of Bramwell LJ in Foster vs Usher
Wood [1877] 3 Ex D1 in which he stated as follows: ‘It is argued that consent
has waived the objection. I do not understand what is meant by waiving the
objection. In this case the Registrar had no jurisdiction to make the order or try
the action in a country court. The parties cannot by consent confer a jurisdiction
which does not exist’. It was also held by Lord Asher MR in Re, Aylmer Exp.
Bischoftsheim [1887] 20 QB 258 that; The consent of parties cannot give the
court jurisdiction which it does not otherwise possess. The English Court of
Appeal in Hinde v. Hinde [1953] 1 ALL ER. 171 held as follows:- ‘The parties
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could not by consent give the court a jurisdiction which it did not otherwise
possess while the Court would recognize a consensual arrangement between the
parties it would not lend its process to enforce an order that which was drawn
up in the form of an order but which in reality was the statement of an
agreement in terms which the court would have no jurisdiction to impose.’
Court finally held that the Grade One Magistrate’s Court at Koboko exercised its
jurisdiction irregularly and illegally when it allowed the parties to enter a
consent judgment which was beyond its pecuniary jurisdiction rendering that
consent judgment to be an agreement contrary to the policy of court. The
judgment and decree was a nullity and are therefore set aside.

 Chief Magistrate to have unlimited jurisdiction in disputes relating to

conversion, damage to property and trespass see s. 207 (1) (a).

 In all causes or matters governed only by civil customary law, the

jurisdiction of the Chief Magistrate and Magistrate Grade 1 shall be
unlimited Read s.207 (2) MCA as amended.

 See Hierarchy in terms of filing suits in respective magistrate’s courts; read

s.208 MCA. Read also The Transfer of Jurisdiction to Magistrates
Courts Circular No. 1/2007

Geographical Jurisdiction of the Magistrates’ Courts:

Geographical jurisdiction is dependent on the subject matter of the suit; Read;

sections 11 to 15 of the CPA and S. 212 to 215 of the MCA; Read; The
Magistrate’s Courts (Magisterial Areas) Instrument 2017

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In the case of Remo v Juma HC CIVIL REVISION No. 0006 OF 2015; Justice
Mubiru stated that local jurisdiction is the power of the court with reference to
the territory within which it is to be exercised. That the territorial jurisdiction
of magistrates’ courts is delimited by way of statutory instruments issued from
time to time by the Minister of Justice, after consultation with the Chief
Justice, in accordance with section 2 of The Magistrates Courts Act. That
according to section 6 of The Magistrates Courts Act, every magistrate
appointed under the Act is deemed to have been appointed to, and have
jurisdiction in, each and every magisterial area but may be assigned to any
particular magisterial area or to a part of any magisterial area by the Chief
Justice. And according to section 3 of The Magistrates Courts Act, within each
magisterial area, magistrates’ courts are designated and are known as the
magistrates court for the area in respect of which they have jurisdiction. That
the purpose of these provisions is to ensure that the authority of the various
magistrates is limited to certain well defined territory. That a close scrutiny of
the provisions relating to geographical jurisdiction reveals that local
jurisdiction is vested in the court and not in the magistrates.  As such, when
the magistrate is transferred, no transfer of territorial jurisdiction results since
this continues to be vested in the court by virtue of the power of defining or
apportioning the territory over which a particular magistrate exercises
jurisdiction vested in the Chief Justice. That it is the practice that judicial
officers transferred, who at the time of transfer had cases pending before them
where the proceedings had advanced to that level, are expected to carry the
files with them to their newly assigned territorial jurisdiction and write the
judgments. But when the judgment is ready, it is delivered not at the court of
their new assignment, but rather the court where the evidence was recorded by
the magistrate who wrote the judgment or by the successor magistrate. All
subsequent proceedings are undertaken by that court within whose local
jurisdiction the suit was filed and tried. That this practice is consistent with
section 7 (1) (a) of The Magistrates Courts Act which requires a magistrate’s
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court to sit “at any place within the local limits of its jurisdiction.” If a
magistrate’s court is to sit at any place outside the local limits of its
jurisdiction, then section 7 (1) (b) of The Magistrates Courts Act requires that
written authorization of the Chief Justice be sought and that authorization will
be given only if it appears to the Chief Justice that the interests of justice so
require, in which case the proceedings may be held in such building as the
Chief Justice may, from time to time, assign as the courthouse. That the
alternative is for invoking the powers of the Chief Magistrate under section 171
of The Magistrates Courts Act (in respect of criminal cases) or that of the High
Court under section 128 of The Magistrates Courts Act (in respect of civil suits)
to have the suit transferred from one court to the other. When any of these
provisions is invoked, territorial or local competency will not be a prerequisite,
necessary or required of the court to which the suit is transferred. That in
absence of written authorization of the Chief Justice or transfer by the Chief
Magistrate or the High Court, a magistrates’ court seized with jurisdiction over
a matter cannot transfer any aspect of the disposition of the matter, including
the delivery of judgment and post judgment proceedings, from one local
jurisdiction to another, unless authorised to do so by law or in accordance with
the law, such as where a decree is sent to another court for execution under
Order 22 rules 4 to 7 of The Civil Procedure Rules. Otherwise, a Court without
local jurisdiction is not competent to dispose of any aspect of the suit. To have
jurisdiction is to have the power to inquire into the fact, to apply the law and to
declare the relief in a regular course of a judicial proceeding. Jurisdiction does
not in any way depend upon the regularity of its exercise or upon the
rightfulness of the decisions made. The authority to decide a case and not the
decision rendered therein is what makes up jurisdiction. Therefore, a court
taking cognisance of any aspect of the suit, in violation of the law governing
territorial jurisdiction and transfer of decrees for execution, is an abuse of
process. That providing for the jurisdiction of courts on the basis geographical
location is meant to give structure to the system of justice by ensuring that
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there is orderly disposal of cases. It also helps to create efficiency within the
system by reducing conflicting cognisance of cases by different courts at the
same time. It is for this reason that every suit should ordinarily be instituted in
the Court of the lowest grade competent to try it as required by section 208
of The Magistrates Courts Act. This explains why in decisions such as Pastoli v
Kabale District Local Government Council and others [2008] 2 E.A 300, Kagenyi
v Musiramo and another [1968] E.A.43it has been decided that an order of court
made without jurisdiction is a nullity and that an order for the transfer of a
suit from one court to another cannot be made unless the suit has been in the
first instance brought to a court which has jurisdiction to try it. Therefore that
a suit instituted in a court without jurisdiction is incompetent and cannot be
transferred to the High Court for hearing and determination. These decisions
though have all addressed the pecuniary rather than the local limits of the
jurisdiction of courts. That the four aspects of civil jurisdiction; the nature and
pecuniary value of the subject matter, personal, temporal, and territorial are of
equal importance. A court that lacks one lacks jurisdiction and competence
entirely to try the suit, irrespective of whether or not it is operating within the
same Chief Magisterial area. Proceedings undertaken by a court without
jurisdiction are a nullity, be it subject matter (rationemateriae), personal
(ratione personae), temporal (rationetemporis), or territorial (ratione loci).

Jurisdiction of the High Court

 Jurisdiction derived from Article 139(1) of the constitution. High court

vested with unlimited original jurisdiction in all civil and criminal matters
subject to the constitution. Read; Larco Concrete Products Ltd vs
Transair Ltd (1988 – 90) HCB 80; The High court in its civil and criminal
jurisdiction is vested with power over all persons and over all causes and
matters in Uganda criminal or civil and in spite of the contract being made
in England, that alone could not oust the jurisdiction of the high court

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 unless it has been stipulated in the agreement to that effect in no uncertain
terms.

 The constitution read together with the Judicature Act S.14 (1) grant the
High court original jurisdiction in all matters. In the absence of a provision
in the contrary, the High court has unlimited jurisdiction; Eastern and
Southen African Trade and Anor vs Hassan Basajjabalaba and Anor
HCT -00-CC-CS – 0512 – 2006;

 The High Court can’t dismiss a matter before it merely because other lower
Magistrates courts may have jurisdiction to entertain it; See consequences;
Read P. Munyagwa Vs Lucy Kamujanduzi [1972] EA, 332 (U).[1972]
HCB 117. In this case a suit which could have been commenced in a
magistrate court was commenced in the High Court. Counsel for the
defendant objected that the suit was bad on ground of jurisdiction. Held:
That the High Court is a court of unlimited jurisdiction, which could
entertain any action and this, does not render the suit defective. That all
what the plaintiff would suffer was to be awarded costs at the rate of the
lower court scale.

 NB; as general rule: Actions must be instituted in lower courts otherwise a

party who files the suit in a higher court, where a lower court has
jurisdiction, the party would stand the risk of a low award of costs.

In the case of Francis s/o Mwijage V Boniface s/o Kabalemeza Civil Appeal
84-68(HCD) 341; the Plaintiff sued the defendant in District Court for refund of
bride price allegedly paid by him to defendant. The trial court found that no
bride price had been paid and dismissed the suit. On appeal, a question arose
as to the jurisdiction of the District Count to try the suit. Court held that the
law applicable to the suit is customary law, which under section 14 of the
Magistrates Court Act, Cap 537, is justifiable in Primary Courts. Under section

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13 of the Civil Procedure Code, every suit shall be instituted in the court of the
lowest grade competent to try it, which was, in this case, a primary court.
Section 13, however, is a rule of procedure, not of jurisdiction [citing Mulla,
1934 10th Edition, pp.98-100], and does not deprive higher courts of
jurisdiction which they already possess. Further, under section 35(2) of the
Magistrates Courts Act, District courts have limited original jurisdiction in
proceedings save where it is conferred exclusively on some other court; and
section 14 of the Act does not appear to give primary district courts exclusive
jurisdiction over suits involving customary law. Thus the district court had
jurisdiction to try the suit.

Read and compare s. 208 MCA

 The Jurisdiction of the High Court in Tax Disputes

The proper procedure is that all tax disputes must first be lodged with the Tax
Appeals Tribunals and only taken before the High Court on appeal.

In the case of Uganda Revenue Authority (URA) vs. Rabbo Enterprises (U)
Ltd & Anor SCCA No. 12 of 2004 the Supreme stated that Article 139 of the
constitution provides that the high court shall subject to the provisions of the
constitution, have unlimited jurisdiction. That on the other hand Article 152(3)
of the constitution provides that parliament shall make laws to establish tax
tribunals for the purposes of settling tax disputes. Pursuant to the
constitutional provision, parliament enacted the Tax Appeals Tribunals Act cap
354. That the High court exercises its unlimited jurisdiction subject to other
provisions of the constitution. One of such provision envisaged in Art 139(1) is
Art 152(3) of the constitution which provides for Tax Appeals Tribunal. That it
is the Constitution itself which, through Article 152(3) limit the original
jurisdiction of the High court and empowered the Tribunal with jurisdiction.
The powers of the High court are subject to the constitution. That the proper

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procedure therefore is that all tax disputes must first be lodged with the Tax
Appeals Tribunals and only taken before the High Court on appeal. That in the
case of The Commissioner General Uganda Revenue Authority vs. Meera
Investments, SCCA No. 22 of 2007 Kanyeihamba JSC held inter alia that the
case was about the conflict between the provisions of the Income Tax Act and
the Value Added Tax Act, and that their interpretation and nature of
application is a matter for a court of law and not for the parties or a tax
tribunal. That having found that the case was not concerned with the mere
assessment, demand and refusal to pay tax but with the interpretation of the
relationship between the Uganda Revenue Authority Act and the Uganda
Investment Act, the need to first present the matter to the Tax Tribunal did not
arise. That the holding of the learned justice of the supreme Court that Meera
dispute properly belongs to the jurisdiction of the High court and not of a tax
tribunal, and that Art 139(1) of the Constitution which gives the High Court
unlimited original jurisdiction in all matters remain superior and mandatory,
must therefore be understood in the context of the case. Consequently that the
decision in Meera Investment is distinguishable from the matter before them
since the matter in issue before them constituted a tax matter / dispute.

Professor Dr. Lilian Tibatemwa –Ekirikubinza further took note that in Meera
Investments, Kanyeihamba JSC did not discuss the meaning of the phrase
‘subject to the provisions of the constitution’ found in Art. 139(1) of the
constitution, a phrase that places the powers of the High court within a wider
context of the constitution as an entire document. That further still, the
learned justice did not address his mind to the cardinal rule that while
adjudicating matters touching the constitution, a court must read the
constitution as an integrated whole with no particular provision destroying the
other. That Art. 139 deals with the power of the High court to resolve disputes
and so does Art. 152(3). That for the two identified lapses, Meera decision was
made per incurium and not bound to follow the Meera decision. That she was

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obliged to proceed under Art 132(4) of the constitution which provides that the
supreme court may, while treating its own previous decisions as normally
binding, depart from a previous decision when it appears to it right to do so.

Unlimited Original Jurisdiction of the High Court in Employment

Disputes

The High Court has unlimited original jurisdiction in employment matters.

In the case of 201 Former Employees of G4S Security Services Uganda Ltd
vs. G4S Security Services Uganda Ltd SCCA No. 18/2010 the Supreme
Court held that s.93(1) of the Employment Act clearly intended to oust
jurisdiction of the ordinary civil courts in Uganda by ensuring that employment
matters are only handled by labour officers and industrial court. That it is
evident that these sections conflict with Art. 139(1) of the constitution in so far
as they limit the unlimited original jurisdiction of the High Court to hear
employment matters as a court of first instance. That Art. 139(1) of the
constitution confers on the High Court unlimited jurisdiction and the position
is reiterated in section 14(1) of the Judicature Act.

In the case of Hilda Musinguzi vs. Stanbic Bank (U) Ltd HCCS No.
124/2008, the issue was whether the High court has original jurisdiction in
employment matters in light of the provisions of the Employment Act 2006.
Court held that the unlimited original jurisdiction of the High Court
granted under Article 139(1) of the Constitution cannot be ousted by granting
of jurisdiction by a statute to another body.

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In the case of Uganda Broadcasting Corporation v Kamukama (MISC.
APPLICATION NO. 638 OF 2014) Court held that it is trite law that
jurisdiction of the High Court is exercised in conformity with a written law as
provided in the Judicature Act. Therefore by parliament enacting other
subordinate legislation conferring jurisdiction to different forum to adjudicate
over disputes does not in any way diminish the fact that the High Court has
unlimited jurisdiction. Section 93(1) of the Employment Act 2006 provides
that:-“Except where the contrary is expressly provided for by this or any other
Act, the only remedy available to a person who claims an infringement of any of
the rights granted under this Act shall be by way of complaint to a Labour
Officer”. Section 94 of the same Act provides for appeals as follows: “A party
who is dissatisfied with a decision of the Labour Officer on a complaint made
under this Act may appeal to the Industrial Court in accordance with the section.
An appeal under this section shall lie on the question of law and with leave of
the Industrial Court on the question of fact forming part of the decision of the
Labour Officer”.The import of these provisions is not that this court has no
jurisdiction to entertain the respondent’s claim. This is because the
Constitution of Uganda confers unlimited jurisdiction on the high court in all
matters as provided in article 139 (1) of the constitution. Section 93 of the
Employment Act which gives jurisdiction to the Labour Officer does not in any
way oust the unlimited original jurisdiction of the High Court. This is the
position enunciated in the case of M/s Rabo Enterprises (U) Ltd and M/s Elgon
Hardware Ltd Vs Commissioner General Uganda Revenue Authority CA No. 51
of 2003wherein the lead judgment of Okello J. A (as he then was) held inter
alia that “An Act of Parliament cannot oust the jurisdiction of the High Court
except by an amendment of the Constitution”. In the same way, the conferment
of the appellate jurisdiction on to the Industrial Court does not in any way
affect the original jurisdiction of the High Court. The same applies to the
conferment of jurisdiction on the Labour Officer in regard to Labour disputes
by the Employment Act. That much as this court has unlimited jurisdiction, if
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one looks at the intention of parliament in conferring jurisdiction on the
Labour officer and the creation and operationalisation of the Industrial Court
with appellate jurisdiction it would be prudent if these two institutions are put
to good use. This is our current court policy. Avoiding these institutions would
be defeating the intentions of the legislature since the Industrial Court is now
operational. That it is proper to refer the matter to the Labour Officer for
appropriate handling.

Unlimited Original Jurisdiction of the High Court in Disputes Subject to

Arbitration Clauses

Provisions of the Arbitration and conciliation Act requiring matters subject to

arbitration clauses do not oust the jurisdiction of the High Court; Read
Pheobe Mugabi V Print Pak (U) Ltd (1994) 1 KALR 29; Kayondo V The
Cooperative Bank Ltd CA No. 19/91

However, the High Court may refer the matter to arbitration where there is a
valid, operative and enforceable arbitration clause if a proper application is
made by a party thereto;

In the case of Power and City Contractors Ltd v LTL Project (PVT) Ltd
HCMA 62 of 2011 an objection was raised on ground that the parties had by
agreement undertaken to refer disputes arising out of their contractual
obligation to arbitration and that as such court is enjoined by law to refer the
matter to arbitration in accordance with the parties agreement. Court held that
arbitration is governed by the Arbitration and Conciliation Act 2000. That
section 41of the Act presupposes that before the court can refer a dispute to
arbitration it must be ‘seized of an action’. That the Court has jurisdiction to
receive a suit even if the agreement binding the parties has an arbitration
clause, that this is what can enable it refer the matter to arbitration unless
valid exceptions exist. That the fact that the clause had been put into the

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consortium agreement in clear and un ambiguous terms and the parties
expressly agreed to submit disputes arising out of their contract to arbitration,
for all intents and purposes arbitration was recognized as an effective means of
solving all the disputes out of the binding contract and the clause is binding on
the parties to the contract. That it was held in National Social Security Fund
and WH. Ssentongo T/A Ssentoogo & Partners v Alcon International Ltd CA No.
02 of 2008 that;- ‘An arbitration clause a contract has an enduring and special
effect, that if parties decide to adopt a different resolution mechanism for a
particular dispute that arise under a contract, the arbitration continues in force
and is not thereby totally repudiated unless there is a solid reason for doing so.
Courts will always refer a dispute to arbitration where there is an arbitration
clause in a contract.’ That according to Russell on Arbitration 22 nd Edit Sweet &
Maxwell paragraph 2-119 page 80. ‘…a party may mardon its right to arbitrate,
for Example by delay or inaction, or by commencing court proceedings in breach
of an arbitration agreement. However the courts are slow to find such
repudiation or abandonment without very clear evidence of an intention to
abandon the right to arbitrate together with reliance by the other party to its
detriment. Even if the right to arbitration a particular dispute has been
abandoned, that does not necessarily mean that the arbitration agreement itself
has been abandoned.’ That by incorporating an arbitration clause in their
contract both parties hereto for all intents and purposes recognized arbitration
as effective means of solving any dispute that could arise. That reference of
dispute to arbitration was not an optional clause but a binding clause.

In the case of Fulgencious Munghereza V Price Water House Coopers

Africa Central SCCA No. 18/2002 [1997-2000] UCLR 45 Jurisdiction of the
High Court was contested asserting that the issue in dispute was subject to a
mediation and arbitration under clause 29 of the Agreement for which
procedure the respondent intended to seek stay of proceedings in the suit. The
issue was whether the appellant came within the exceptions to section 41of the

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Arbitration and Conciliation Act 2000. Court held that there is nothing to stop
the parties referring the matter to mediation if there is a chance of it being
resolved amicably. That the appellant was a party to the frame work agreement
and he was entitled as a member to have this dispute resolved in accordance
with the framework agreement.

In the case of EADB V Ziwa Hotcultural Exporters Ltd [1997-2000] UCLR

247; held that section 6 of the Arbitration and Conciliation Act, provides for
mandatory reference to arbitration of matters before court which are subject to
an arbitration agreement; where court is satisfied that the arbitration
agreement is valid, operative and capable of being performed, it may exercise
its discretion and refer the matter to arbitration.

NB; The High Court has inherent power to make such orders as may be
necessary for the ends of justice or to prevent abuse of the process of the court;
Aya Investments (U) Ltd V M/S Kibeedi & Co. Advocates [2008] HCB 130

The Registrars ( including Deputy Registrars/ assistant registrars of the High

court also have jurisdiction over specified matters like specified interlocutory
applications; Read; Gomil (U) ltd v Latax (u) Ltd 1990 – 91 KALR 194 on
whether a High court registrar or a district registrar can entertain interlocutory
application such as application to grant an interim injunction.

 Read; Jurisdiction of Registrars of the High court; O.50 CPRs

 Judicial Powers of Registrars (Practice Direction No. No.1 of 2002;

 Read; The High Court (Circuits) Instrument No.20/2004

 Read; Dairy Corporation V Opio [2001-2005] HCB 113 for the other
functions of registrars

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 Jurisdiction of the High Court in Cross-Border Transaction or matters with an
international elements;

 The question that arises is whether the High Court has jurisdiction in matters
having an international element.

Section 12 CPA provides for institution of suits where the subject matter
situate and section 15 provides for institution of suits where the defendant
reside or cause of action arose.

In the case of Kasoma vs Sembatya CACA 78/2011 the respondent who

worked in Japan bought vehicles there but later deported to Uganda. Later
found that the vehicles had been disposed off and changed the frame who
reported to Interpol. The vehicles were impounded by police in possession of
the appellant who contended to have purchased them in Japan. On appeal the
ground was whether the learned trial judge erred in law and fact in holding
that there was a subsequent failure to justice because of the matter being tried
and heard in Uganda outside the jurisdiction of cause of action. Court of
appeal held that the appeal arose in a chief magistrates court and appropriate
to refer to the law that governs magistrate courts. Section 212 suits to be
instituted where the subject matter situate and section 215 other suits to be
instituted where the defendant reside or cause of action arose. That in the
instant case, the cars which are the suit property where in Uganda by the time
the suit was filed in court, both defendant were living in Uganda within the
jurisdiction of court and the court was justified in the finding that the trial
court had jurisdiction to resolve the dispute brought before the court.

In the case of Sebagala & Sons Electric Centre Ltd V Kenya National
Shipping Lines Ltd HCCS No. 431 of 1999 [1997-2001] UCLR 388 the issue
was whether court had jurisdiction to entertain a matter involving the
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defendant which operated business outside Uganda. Held; that following the
provisions of s.15 (3) of the Civil Procedure Act, the question of whether or not
a court has jurisdiction in a matter arising from the contract is dependent on
where the cause of action arose in terms of where the contract was made, or
where it was performed and completed, and where payment was effected. In
this case, completion of the contract was to be effected in Kampala hence the
court had jurisdiction. That secondly, the defendant having filed a defence
submitted to the jurisdiction of the court and could not dispute its jurisdiction
at the hearing.

Read; Larco Concrete Products Ltd vs Transair Ltd (1988 – 90) HCB 80;
Eastern and Southen African Trade and Anor vs Hassan Basajjabalaba
and Anor HCT -00-CC-CS – 0512 – 2006;

Jurisdiction of the High Court in Transactions with specific provisions on

jurisdiction.

A clause to submit to the exclusive jurisdiction of the foreign court is

enforceable by the High Court of Uganda. However, the High Court does not
lose its jurisdiction to entertain the action if the Plaintiff can show some just
cause why the proceedings should not be stayed or dismissed.

In the case of Transtrac Ltd vs Damco Logistics (U) Ltd HCMA No.
394/2010 the applicant objected to jurisdiction and sought a declaration that
the High Court had no jurisdiction over him in respect of the subject matter of
the claim for relief or remedy sought by the respondent. In that case the
governing clause provided as that the agreement shall be governed, construed
and enforced in accordance with English law and the parties submit to the
exclusive jurisdiction of the English courts. Justice Madrama considered the
case of Uganda Telecom verses Rodrigo Chaco t/a Andes Alps Trading in HCMA
337 of 2008 in which Honourable Lady Justice Stella Arach, Amoko, judge of the

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High Court as she then was, held that the clause which provided that: "this
agreement shall be construed in accordance with English law and subject to the
exclusive jurisdiction of the English courts", was clear and certain. Under that
clause the parties had not only chosen English law to govern the agreement but
unequivocally submitted to the exclusive jurisdiction of the English courts. She
held that the High Court had no jurisdiction to adjudicate in the dispute, the
parties having chosen the exclusive jurisdiction of the English courts. She further
held that the fact that the agreement was negotiated, performed and possibly
breached in Uganda was immaterial. She held that the clause ousted the
jurisdiction of the High Court. The judge agreed with the holding of the judge to
the extent that the parties agreed to submit to the jurisdiction of the English
courts and to refer their disputes for adjudication in that forum but disagreed
that the contract ousted the jurisdiction of the court. His decision was based
on the construction of article 139 clause 1 of the constitution which confers
unlimited original jurisdiction in all matters on the High Court. Furthermore
the unlimited original jurisdiction is reproduced under section 14 of the
Judicature Act. Furthermore he felt bound by the decision of the Court of
Appeal in David Kyadondo versus Cooperative Bank civil appeal number 19 of
1991 where it was held that the Cooperative Societies Act and the section that
under which it was provided that all disputes shall be referred to arbitration
did not oust the jurisdiction of the High Court. Consequently it his finding that
the court has jurisdiction to interpret and enforce the contract of the parties in
a similar way as it does with the provisions for the parties to submit their
dispute to arbitration. In other words the court can insist that the parties
should abide by the contract unless the Plaintiff can justify filing the action in
the High Court.

In the case of Rapid Shipping and Freight Uganda Ltd and another versus
Copy Lines Ltd HCMA 216 of 2012 the applicants objected to jurisdiction. In
overruling the objection, the court held that the clause providing for the

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submission of any dispute to the English courts was contained in the bill of
lading which was a unilateral document signed by the ship owner or master or
other agent of the ship owner which states that certain specified goods have
been shipped in a particular ship and which purports to set out the terms on
which the goods have been delivered to and received by the ship. It was held
that there was no evidence of the consensus to submit any dispute relating to
the carriage of goods to the exclusive jurisdiction of the English courts and not
other courts. The court therefore held that in the absence of evidence of
consensus between the parties, the objection to jurisdiction was overruled for
being premature.

In the case of Huadar Guangdong Chinese Co. Ltd v Damco Logistics

Uganda Ltd HCCS NO 4 and 5 of 2012 concerned contract between the
plaintiff and defendant for the transportation of goods from Kampala to Hong
Kong, Haiphong, China. Clause 54 (b) of the standard trading conditions
provides: "These conditions, and any claim or dispute arising out of or in
connection with the services in respect of services provided anywhere else in
the world, are subject to English law and the exclusive jurisdiction of the
English High Court of Justice in London." The ruling arose from a preliminary
objection to the Plaintiff's suit by the Defendant ground that the High Court of
Uganda has no jurisdiction to try the suit. The issue was whether the High
Court of Uganda has jurisdiction in the matter? Justice Madrama held that the
Plaintiff has not moved the court justifying filing the action in Uganda. Further
held that in cases of arbitration clauses, the Arbitration and Conciliation Act
gives grounds for justifying the filing of an action in the High Court irrespective
of the arbitration clause and found the rationale useful and applicable to
clauses of the parties agreed to submit their dispute to the exclusive
jurisdiction of the foreign court. That section 5 of the Arbitration and
Conciliation Act permits the court not to refer the dispute to arbitration where
the agreement is null and void, in operative or incapable of been performed.

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Secondly that it is not in fact any dispute between the parties with regard to
the matters agreed to be referred to arbitration. The Plaintiff must show that
the Defendant is using the clause to submit their disputes to the exclusive
jurisdiction of the foreign court as a means of avoiding liability. In the absence
of the above, the High Court will enforce the contract.

Jurisdiction of the High Court in Transactions where Defendants are subject to

Diplomatic Immunity

If a government or one of its departments goes into the market places of the
world and engages in straight forward commercial transactions, then it is
within the territorial jurisdiction of the courts of the foreign sovereign and can’t
claim immunity in respect of such transactions.

In the case of Wokuri v Kassam [2012] EWHC 105 (Ch) the claimant worked
for the applicant, who was the Deputy Head of Mission at the Ugandan High
Commission in London, as a chef and and domestic servant and had made
claims that the applicant had not issued her with an employment contract and
had failed to pay her salary in full. The applicant alleged that the claimant was
employed under an existing contract when she worked for the applicant in
Uganda and following a previous hearing Newey J had directed that there be a
hearing to determine whether or not a valid contract had been signed. The
applicant then sought to stop that hearing by issuing an application to dismiss
the claims for want of jurisdiction on the grounds that the relationship "falls
within the Defendant's 'functions' as a 'member of the Ugandan mission' in the
UK" and therefore subject to diplomatic immunity. In this judgment Newey J
reviews the relevant provisions of the Diplomatic Privileges Act 1964 and the
relevant authorities. He observes that while a diplomat may have immunity
even when they have moved to another post (as is the case here) that
immunity, following Swarna, "does not apply to actions that pertain to [a
diplomat's] household or personal life and that may provide, at best, 'an
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indirect' rather than a 'direct ... benefit to' diplomatic functions". He then
dismisses the application largely because it was agreed that the claimant had
been employed in 1998 by the applicant, before she was a diplomat, and
therefore any contract could not have been entered into "in the exercise of …
functions as a member of" the High Commission of Uganda to the United
Kingdom". There was also no evidence that the claimant's job changed on
arrival in the UK.

Read Eddie Rodrigues V The British High Commission SCCA NO.8/87;

Read Ndibarekera V The United States of America HCCS NO.786/97;
Somali Democratic Republic v Treon SCCA No.6 of 1998; Manzur Alam V
The Embassy of Saudi Arabia HCCS NO.402 OF 2002

Jurisdiction of the High Court in case of Conflict btn International law &
Municipal Law

The jurisdiction of the High Court extends only to the boundaries of Uganda.
The High Court should refrain from interpreting the provisions of the
international Acts for purposes of uniform application of the law in all the
Partner States.

In the case of Testimony Motors Ltd. Vs. Commissioner Customs Uganda

Revenue Authority (Civil Suit No. 04 Of 2011) ((Civil Suit No. 04 Of 2011))
the issue was whether the matter was properly before the High Court in terms
of jurisdiction and forum. The plaintiff's application sought to interpret the
provisions of the East African Community Customs Management Act 2004.
Justice Madrama held that the East African Community Customs Management
Act, 2004, is an Act of the East African Community and the Act is meant to
apply to all the Partner States of the East African Community and it takes
precedence over national laws. The East African Community Customs
Management Act, 2004 is for all intents and purposes a creature of the East

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African Community Treaty and therefore part of international law. Its
provisions have to be uniformly applied across all the Partner States. For that
reason and in theory, the interpretation of its provisions by the High Court of
Uganda would if allowed affect the application of the law for all the
Partner States a proposition which is without jurisdiction. That the High Court
should refrain from interpreting the provisions of the Act for purposes of
uniform application of the law in all the Partner States of the Community. The
jurisdiction of the High Court extends only to the boundaries of Uganda. The
High Court of Kenya, Tanzania, or the courts of Rwanda and Burundi may if
different interpretations are permitted come up with different interpretations of
the same provisions. Though the East African Community Customs
Management Act, 2004 is an Act of Parliament, it is just a domestication of
International treaty Law for application and enforcement by
national agencies of Partner States in the East African Community Treaty. That
for purposes of consistency, questions as to interpretation of the Act should be
left to the organs of the East African Community Treaty so that the enactment
has a uniform application. Obviously for purposes of enforcement, the High
Court of Uganda reads and interprets the East African Community Customs
Management Act 2004. However this interpretative jurisdiction does not involve
deciding questions involving controversy as to the proper meaning of any
particular provision which may be in dispute. The interpretation of the High
Court should be limited to questions of enforcement of the Act. The rationale
for this is obvious. The Act overrides domestic legislation in case of conflict. Its
provisions are therefore international or regional in application. Its
domestication by enactment by the National Parliament does not change the
character of the enactment as the East African Community law.
The plaintiff was at liberty to refer the questions stated for interpretation to the
East African Court of Justice at Arusha. 

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Read Concorp International Ltd Versus Eastern & Southern Trade &
Development Bank SCCA No. 11/ 2009

Objections to Jurisdiction and Procedure

Read; O. 9.r 3(1) (g) CPRs

The Defendant wishing to object/ dispute to the Jurisdiction of court may give
his/her intention to defend the proceedings or apply within the time limited for
service of a defence to court.

In the case of Ozuu Brothers Enterprises vs. Ayikoru Milka H.C.C.Revision

No. 2 of 2016 Justice Mubiru stated that any objection as to jurisdiction being
so central to the authority of the court to undertake proceedings in a case
before it, must be raised at the earliest opportunity so that the court does not
engage in a futile exercise (see Owners of the Motor Vessel ‘Lillian S’’ v Caltex
Oil (Kenya) Ltd [1989] KLR 1). That any issue of jurisdiction has to be
considered first so that in the event of the court coming to the conclusion that
it has no jurisdiction, the exercise of going into the merits of the suit would be
unnecessary.

That the procedure of raising an objection to the jurisdiction of court in civil

matters is provided for under O. 9 r 3 (1) CPR that a defendant who wishes to
dispute jurisdiction of the court in the proceedings shall give notice of intention
to defend the proceedings, within the time limited for service of the defense,
apply to the court for a declaration that in the circumstances of the case the
court has no jurisdiction over the defendant in respect of the subject matter of
the claim or relief or remedy sought in the action or such other relief as may be
appropriate and the application shall be by summons in chambers. That it
follows that instead of filing a written statement of defense, the applicant
should have instead filed notice of intention to defend the proceedings and
thereafter a chamber summons supported by affidavit, within fifteen days of
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receipt of summons to file a defense, seeking a declaration that in the
circumstances of the case the court had no jurisdiction over the defendant in
respect of the subject matter of the claim or relief or remedy sought in the
action. The consequence of this failure is found in O.9 r 3(6) CPR that the filing
of the defense by a defendant shall, unless the defense is withdrawn by leave of
the court be treated as submission by the defendant to the jurisdiction of the
court in the proceedings.

That O.9 r 3(6) CPR relates to challenges of competence (which is a procedural

aspect of jurisdiction) rather than subject matter, personal, territorial or
temporal jurisdiction (which is substantive jurisdiction). This is because O.9 r
2 CPR provides that filing of a defense by the defendant is not to be treated as
a waiver by him or her of any irregularity in the summons. Reading the two
provisions together (i.e. O9 r 3(6) and O 9 R 2), the conclusion is inevitable that
filling a defense in the circumstances of this nature, is submission to the
procedural rather than the substantive jurisdiction of the Court. A party who
files a defense in those circumstances is not precluded from raising the issue of
jurisdiction in the defense or as a preliminary point of law. That while a litigant
may submit to a procedural jurisdiction, he or she cannot confer subject
matter jurisdiction on a court where the Constitution or a statute or any
principle of common law is to the effect that the court does not have
jurisdiction

 Note; Where a defendant does not file a defence, it is deemed that he/she
excluded him/herself from court and has no locus standi before the court;
and can not sustain any application in the proceedings. AG & UCB V
Westmont Land (Asia) Bhd & Others [1997-2001] UCLR 191

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 The filing of a defence where the defendant has filed an application under
O.9 r. 3 is not treated as a submission to the jurisdiction unless court
orders so or dismisses the application. Mark Graves V Balton (U) HCMA
No.158 of 2008.

Effect of proceeding before a court with no jurisdiction;

It is settled law that a judgment of a court without jurisdiction is a nullity and

as such it is something which a person effected by it was entitled to have it
aside ex debits justitiae.

In the case of Ozuu Brothers Enterprises vs. Ayikoru Milka H.C.C. Revision
No. 2 of 2016 Justice Mubiru stated that a Court either has the requisite
jurisdiction or it does not. It is well settled principle of law that the court
cannot confer upon itself jurisdiction where there is none and neither can the
parties confer jurisdiction upon a court by consent, either express or implied
(e.g. by absence of objection at appropriate time). A decree without jurisdiction
whether it is pecuniary or territorial or whether it is in respect of the subject
matter of the action strikes at the very authority of the court to pass any
decree, is therefore a nullity and may be questioned at any stage including
execution or even in collateral proceedings. It is such a defect which cannot be
cured even by consent of parties or failure to comply with the procedure for
raising an objection to the jurisdiction of courts in civil matters provided for
under O. 9 r 3 (1) CPR. It is a fundamental principle that is also well
established that a decree passed by a court without jurisdiction is a nullity and
that its invalidity could set up whenever and wherever it is sought to be
enforced or relied upon, even at the stage of execution and even in collateral
proceedings. A defect in competence is extrinsic to adjudication, hence a
challenge to jurisdiction can be entertained at any stage of the proceedings, at
first instance, or on appeal even by way of revision sought by any of the parties

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and even by the court itself suomotuto (on its own motion), to prevent an
obvious miscarriage of justice.

In the case of Stephen Mubiru vs. Annet Mubiru HC Revision Cause No. 4 of
2012 an application was to set aside a decision of the Magistrate Court Grade
1 on ground that the land was valued over Ugx. 280,000,000/-. Court held
that the respondent’s failure to successfully challenge the lower court’s
jurisdiction did not and could not itself have vested jurisdiction in the trial
court which did not have the same. That even if the trial magistrate had
overruled the applicant on the matter, it still would not have conferred
jurisdiction on his court. That it is settled law that a judgement of a court
without jurisdiction is a nullity and something which a person affected is
entitled to have set aside ex debitis judititial. See Karoli Mubiru & 21 Others V
Edmond Kayiwa [1979] HCB 212; Peter Mugoya V James Gidudu & Anor [1991]
HCB 63. That the Principal Magistrate Grade 1 exercised jurisdiction not vested
in him in entertaining and delivering judgement, his judgement in respect of
the said case was therefore a nullity, set aside.

 Read; Mubiru & vs Kayiwa (1979) HCB 212. Also read; Byanyima
Winnie v Ngoma Ngime Civil Rev No. 9/2001

 That anything done by court without jurisdiction is a nullity. Read;

Makula International V Cardinal Nsubuga [1982] HCB;

 Jurisdiction is a creature of the constitution and statute and where a matter

is filed in a court that has no jurisdiction, it must be struck out. Read; Sgt
Kalemera Frank vs Uganda SCCA No. 18 /94; Athanasius Kivumbi V
Hon Emmanuel Pinto Constitutional Petition No. 5 of 1997

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 Note the distinction between a wrong court and a court that has no
jurisdiction;

Transfer and Withdrawal of Cases:

S. 18 CPA provides for transfer and withdrawal of cases. Read also s. 217
and 218 of the MCA; Power exercisable by the High Court;

 Considerations include; balance of convenience of the parties, the

expense involved, the interest of justice, the possibility of undue
hardship. See Matayo K. Kaboha V Abibu Bin Abdalla (1942) 6 ULR
121 (U);

 Cost or expense and witness are relevant considerations; In David

Kambugu V Zikalenga Misc. Appl 36/1995[1995] KALR 48; Okello J
held that the Plaintiff has a right to choose his court. The expense which
the plaintiff was likely to incur in transporting and maintaining
numerous public officers from Kampala to Kabale to attend as witnesses
was bound to be prohibitive as to deny him justice. Therefore if the
application was not allowed, it would amount to shutting the plaintiff
behind the doors of justice.

 A suit that is instituted in a court that lacks jurisdiction cannot be

transferred and will be dismissed; Kagenyi V Musiramo [1968] EA
43(U). The order for transfer of a suit cannot be made unless the suit has
been in the first instance instituted in a court, which has jurisdiction.
Read; Sgt Kalemera Franck vs Uganda SCCA No. 18 /94

In the case of Cyprian Obbo vs. Alafari Onyango & Ors HCCA No.
130/2012 the issue was whether the duty to allocate the file to a
competent magistrate lay with the Chief Magistrate. Court held that the
position of the law is that a subordinate court cannot on its own

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 initiative transfer a case to another subordinate court, or try a case
which is not within its territorial or magisterial area. That in the case of
David Kabungu vs. Zikarenge High Court Misc. App. 36 of 1995
[1995] 3 KALR 48-it was held;

‘A subordinate court has no jurisdiction to transfer a suit. On

the other hand a subordinate court to which a suit is
purportedly transferred by another subordinate court, if he
hears the case and decides it, takes the case without
jurisdiction as the case was not filed in that court nor
transferred to it by the order of the High Court.’

That also in Kigenyi v. Musiramo (1968) EA 43 it was held that an

order for transfer of a suit cannot be made unless the suit had in the first
instance been brought to a court which has jurisdiction to try it.That it was
clearly right for the learned magistrate to decline the option to transfer
the suit since he had no jurisdiction to try the matter, and has no
jurisdiction to try the same. The suit was filed in a wrong court and
could not be heard by the Chief magistrate, neither could it survive to be
transferred, its natural fate was to be dismissed.

The jurisdiction of the constitutional court.

Article 137 of the 1995 constitution provides for the jurisdiction of the
constitution court. Any question as to the interpretation of the Constitution
shall be determined by the Court of Appeal sitting as the constitutional court
consisting of a bench of five members of that court. A person who alleges that
(a) an Act of Parliament or any other law or anything in or done under the
authority of any law; or (b) any act or omission by any person or authority, is
inconsistent with or in contravention of a provision of the Constitution, may
petition the constitutional court for a declaration to that effect, and for redress

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where appropriate. Where any question as to the interpretation of the
Constitution arises in any proceedings in a court of law other than a field court
martial, the court (a) may, if it is of the opinion that the question involves a
substantial

question of law; and (b) shall, if any party to the proceedings requests it to do
so, refer the question to the constitutional court for decision.

In the case of The Attorney General vs Major General David Tinyefuza

Supreme Court Constitutional Petition No. 1 of 1997 WW Wambuzi C.J (as
by then) had this to say at page 24 of his judgment;

‘‘In my view, jurisdiction of the Constitutional Court is limited in

Article 137(1) of the constitution to interpretation of the
Constitution. Put in a different way no other jurisdiction apart
from interpretation of the Constitution is given. In these
circumstances I would hold that unless the question before the
Constitutional court depends for its determination on the
interpretation or construction of a provision of the constitution,
the Constitutional Court has no jurisdiction.’’

The learned Chief Justice in the same judgment went on to observe as follows;-

‘‘Indeed in the subsequent decision in Uganda Journalists Safety

Committees and Anor versus Attorney General Constitutional
Petition No. 6/97 )unreported) upholding an objection to
jurisdiction, the Court held, quite rightly in my view as follows;-

‘‘The Constitutional Court is thus a new Court created

by Article 137 of The Constitution for the sole purpose
for the interpretation of the Constitution either
following a reference under Legal Notice 3 or by means

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 of a petition under Legal Notice No. 4 of 1996. The
jurisdiction of Court to entertain both matters i.e,
‘Reference’ and ‘Petition’ are derived from Article 137
of the Constitution. The Constitutional Court is
therefore not a proper forum for a person seeking
redress under Article 50 of the Constitution. This is
clear from the provision of the Article itself…’’

Read: Ismail Serugo versus Kampala City Council and The Attorney General,
Supreme Court Constitutional Appeal No. 2 of 1998.

The Jurisdiction of Small claims- Judicature (Small claims procedure)

rules 2011

Small claim is a civil claim whose subject matter value does not exceed Ug.
Shs. 10,000,000. For example, small claims procedure can be used for
matters arising out of the supply of goods, debts and rent.

S.5 of the Judicature (Small claims procedure) rules 2011 provide for the
jurisdiction of small claims. It is applicable to claims not exceeding Ug.shs.
10,000,000 in value. However small claims exclude; claims exceeding
Ug.shs. 10,000,000/-, claims against the government, family disputes
relating to the management of an estate, contract of service and contract for
service, suits for defamation, wrongful arrest, wrongful imprisonment,
malicious prosecution, and seduction, petition for divorce, nullification of
marriage or separation of spouse, claims concerning validity of a will, a
claim in which specific performance is sought without an alternative claim
for payment of damages, except in the case of a claim for rendering an
account or transferring movable property and disputes arising out of a
tenancy agreement not exceeding Ug shs 10,000,000/- in value.
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 Every suit shall be instituted in a court in whose jurisdiction the property is
situated or where the defendant resides. It is only a natural person who may
institute an action in court, but a body corporate may become a party to an
action as a defendant.

In the case of Lubanga vs Baina HCCR No. 13/2015 the applicant was
sued in the small claims and judgement given against him of which was
dissatisfied with the findings and judgement of the trial court. In an
application for revision in the High court the issue was whether the trial
court exercised jurisdiction not vested in it by law and in so doing
occasioned an injustice to the applicant. Court held that according to rule
5(1) of the Judicature (Small Claims Procedure) Rules SI 25 of 2011, a small
claim procedure shall cover a case whose subject matter does not exceed
ten million Uganda shillings and under sub rule 2 it gives exception under
which this matter does not fall. Further held that according to the record of
proceedings this was a claim involving a refund of the security deposit in a
tenancy agreement which was equivalent to shs. 4,800,000/- and by virtue
of the rules the court was within the range of jurisdiction vested.

Pre-Entry Exam 2010/2011

Qn. 42 Identify the different ways through which a matter can be taken to
the constitutional court for determination.

Pre-Entry Exam 2015/2016

Qn. 46 Araali sued Akiiki in the High Court at Arua for trespass to his land
at Fort Portal. Akiiki wants to raise a preliminary objection of lack of
geographical jurisdiction. What should Araali do in the circumstances?

Pre-Entry Exam 2016/2017

Qn. 7 A court with supervisory civil jurisdiction over a lower court may:

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 A. Write judgement for the lower court
B. Discipline judicial officers of the lower court
C. Appoint judicial officers of the lower court
D. Draft rules of procedure for the lower Court
E. None of the above

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 TOPIC IV.

Institution of Suits:

The Procedure of commencing suits:

Institution of Suits:

Read; S. 19 CPA O.4 r 1, O.36, O.37, O. 52 CPRs; etc:

Definition of a Suit; See s. 2 of the CPA.

A Suit is defined under section 2 of the Civil Procedure Act (CPA) as all
proceedings in whatever manner commenced.

Mansion House ltd Vs Wilkinson (1954) 22 EACA 98 Held: A suit is any civil
proceedings commenced in any manner prescribed by rules made by the Rules
Committee to regulate the procedures of courts under the civil procedure Act.

Nakitto & Brothers Ltd V Katumba [1983] HCB 70; that the suit is defined
as all proceedings commenced in any manner prescribed. That this included a
notice of motion.

Read the case of Meera Investiments Limited V Jeshang Popat Shah CACA
No. 56 of 2003

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In the case of Matco Stores Ltd & 2 Ors v Muhwezi H C CIVIL APPEAL NO.
09 OF 2012 it was held that under section 2(X) of the Civil Procedure Act
“‘suit’ means all civil proceedings commenced in any manner prescribed.”
That Section 2(q) defines the term ‘prescribed’ as ‘prescribed by rules’, while
the term ‘rules’ is defined in section 2(t) of the same Act as ‘rules and forms
made by the rules committee to regulate the procedure of courts.’  That it
would appear from the foregoing rule that the suit envisaged by section 2 of the
CPA is a substantive suit as opposed to miscellaneous applications, as is the
case presently.  That indeed in Mityana Ginners Ltd vs. Public Health
Officer, Kampala (1958) 1 EA 339  at 342  the honourable judge drew a
distinction between decrees and orders of courts in so far as they relate to the
definition of a suit, and held: “It seems clear that, whereas decrees arise
only in suits, orders may arise in   proceedings which are not suits, to
which class of proceedings I have referred to above.   If therefore, as I
believe, the application to the Supreme Court was not a ‘suit’, it could
not result in a decree, but only in an order.” That bringing the ratio
decidendi in Mityana Ginners Ltd vs. Public Health Officer,
Kampala (supra) home to the application, clearly the orders of Magezi J. in
miscellaneous application No. 38 of 2009 arose from civil proceedings that do
not constitute a suit. The proceedings from which those orders accrued were
an application for the discharge of a temporary injunction not considered to be
a suit for purposes of the bar of res judicata. 

S.3 CPA; In all cases when there is no special procedure resort should be had
to the Civil Procedure Rules and its application can only be excepted by
procedure contained in any other Act. The first thing is to look for any specific
provision to the contrary, e.g. the constitution in constitutional matters, Acts
like the Divorce Act etc.

Suits to be commenced in manner set out in Rules (S. 19 CPA)

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General rule on procedure of instituting suits is laid down in S.19 CPA; Every
suit shall be instituted in such a manner prescribed by the in the rules [CPR;
rules apply as far as practicable to all matters arising under the CPA;

Meera Investments Ltd V Jesgang Popat Shah CACA No. 56 of 2003

Relevant steps / Considerations before commencement of suits

Concurrence of Civil and Criminal Proceedings; In some instances, an

aggrieved party may be in a dilemma as to whether to take civil or criminal
proceedings against the intended defendant.[examples include negligent driving
and bounced cheques] The question is whether it is possible to pursue criminal
and civil proceedings concurrently arising from the same claim;

A criminal court may order compensation for material loss or personal injury
under sections 197 and 126 of the Magistrates Court Act and Trial on
Indictment Act respectively. This is not a bar to a subsequent civil action for
damages and the principle of res judicata shall not be a defence in an action for
recovery of damages and other reliefs. A person is at liberty to set both criminal
law and civil law in motion to recover damages. However at the time of
awarding any compensation in any subsequent civil suit relating to the same
matter, the court hearing the civil suit shall take into account any sum paid or
recovered as compensation under this section.

Read Esso Standard (U) Ltd V Mike Nabudere HC No. 594/1990. The
defendant applied to stay civil proceedings on ground that there were pending
criminal proceedings derived from the same facts; Karokra J; Held that the
plaintiff’s demand for damages in the civil suit did not in any way prejudice the
criminal proceedings in the criminal court and there is no justification for
staying the civil suit. Additionally, the plaintiff was only to prove his case on
the balance of probabilities and the resultant judgement had no evidential
value in the prosecution of the defendant, since there, proof was required
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beyond reasonable doubt. In any case, police investigations take too long to be
completed and such delay should not constitute a bar against the plaintiff’s
rights of action. The common law rule that barred commencement of a civil suit
during the pendency of criminal proceedings is no longer applicable to Uganda

In the case of Kakira Sugar Works Ltd v Patrick Masombo & Anor HC CIVIL
SUIT NO. 120 OF 2004 the “plaintiff” company sought the  recovery of  Shs.1,
429,000,000/= (One billion four hundred and twenty nine million Uganda
Shillings)  the 1st and 2nd“defendants” respectively the company’s former
employees. They are sued jointly and severally for alleged fraudulent acts
committed during the course of their employment from 1995 and 2000, which
include making false claims for money paid on account of weigh bridge and
motor vehicle road licensing fees to Uganda Revenue Authority (URA), obtaining
fake URA receipts as well as fraudulently altering approved requisitions or
accountabilities. Concerning their acquittal in the Criminal Court, Justice
Bashaija held that with regard to the criminal charges of embezzlement,
acquittal of the defendants in the criminal case does not exonerate them from
civil liability, if any, or stop the plaintiff from seeking a civil remedy. The civil
suit and criminal case are primarily different cases under different laws and
procedures, and the standard of proof in criminal cases is quite higher than
that in civil cases. Therefore, acquittal of the defendants for the offence of
embezzlement does not necessarily prohibit the plaintiff from instituting civil
action for recovery of monies lost due to their fraudulent actions, if evidence is
adduced and their liability proved to the required standard.

The other relevant consideration relates to the relevancy and effect of Criminal
proceedings /judgement in Civil Suits; Read; Erinesti Ochieng V Obedo
Nyambito Civil Appeal No. 92 of 1973; it is trite and rudimentary that
proceedings in a criminal case could not be used to prove a cause of action in a
civil suit – although the record in the criminal court case could be used for

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certain purposes such as contradicting a witness by facing him with what he
stated in the trial of a criminal case.

Notice of intention to sue and Statutory Notice

Read; R.39 Advocates Remuneration and Taxation of Costs rules

Read; Section 22 of the Administrator General’s Act

Read; The Civil Procedure & Limitation (Miscellaneous Provisions) Act Cap

Notice of intention

There is no mandatory legal requirement to serve an ordinary notice of

intention to sue. S.19 CPA, all suits to be commenced in the manner provided
in the rules; The Civil procedure rules have no provision for Notice of intention
to sue.

However, where no notice of intention is served, taking into circumstances of

the failure, the plaintiff may be penalised in costs. In Wam bugu V Public
Service Commission [1972] EA 29, Chanan Singh J held that a notice of
intention should always be given in all cases unless the plaintiff’s interests are
likely to be harmed by the notice if given, the rationale being that failure to
serve a notice could prejudice the position of the defendant in as much as he
would wish to settle or admit liability and avoid court action. Costs would
therefore not be awarded to the plaintiff.

R.39 Advocates Remuneration and Taxation of Costs rules provides that ‘If the
plaintiff in any action has not given the defendant notice of his or her
intention to sue, and the defendant pays the amount claimed or found
due at or before the first hearing, no advocate’s costs shall be allowed
except on an order of the judge or magistrate’.

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Section 22 of the Administrator General’s Act provides that ‘if any suit be
brought by a creditor or any other claimant against the Administrator
General, the creditor or claimant shall be liable to pay the costs of the
suit unless he or she proves that not less than one month previous to the
institution of the suit he or she had applied in writing to the
Administrator General, stating the amount and other particulars of his
or her claim, and had given such evidence in support of the claim as, in
the circumstances of the case, the Administrator General was
reasonably entitled to require.’

Note; The ordinary Notice of intention to sue is served on any intended

defendant other than those specified in The Civil Procedure & Limitation
(Miscellaneous Provisions) Act Cap 72

Notice of Dishonour Cum Notice of Intention to Sue

In suits founded on dishonoured negotiable instruments/ cheques, the failure

to take relevant steps to serve a notice of dishonour of a bill of exchange may
discharge the drawer from liability; Such failure disentitles the payee from the
right of recourse against the drawer on the bill/cheque; Read S.50(2) Bill of
Exchange Act cap 68;

In the case of Obed Tashobya v DFCU Bank Ltd HCT-00-CC-CS-742-2004;

held that although the usual recourse is to return the dishonoured bill to
the customer, where it is not available like in this case, other evidence may be
relied upon as proof and/or notice of dishonour. That the telex message and
the personal communications of the dishonour to the plaintiff by the defendant
are sufficient evidence that the suit cheque was dishonoured.

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In Nanji Khodabhai –Vs- Sohan Singh [1957] EA 291, a cheque was
dishonoured on 25/4/1955 and notice of dishonour was not given until
29/4/1955. The Court held that the defendant was discharged because there
were no special circumstances to justify any delay and notice should have been
given on 26/4/1955.

See also Simba Motors Limited V John Sentongo & Anor HCT-00-CC-CS-
0733-2000

Note; An ordinary Notice of intention to sue is by way of a formal letter.

Statutory Notice

Requirement to Serve a Statutory Notice

Section 2 (1) of the Civil Procedure and Limitation (Miscellaneous Provisions)

Act Cap. 72 provides for Notice prior to suing. It thus provides;-

‘‘After the coming into force of this Act, notwithstanding the provisions
of any other written law, no suit shall lie or be instituted against—

(a) the Government;

(b) a local authority; or

(c) a scheduled corporation,

until the expiration of forty-five days after written notice has been
delivered to or left at the office of the person specified in the First
Schedule to this Act, stating the name, description and place of
residence of the intending plaintiff, the name of the court in which it is
intended the suit be instituted, the facts constituting the cause of action

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and when it arose, the relief that will be claimed and, so far as the
circumstances admit, the value of the subject matter of the intended
suit.’’

In the case of the Commissioner General and Uganda Revenue Authority

Vs. Meera Investments Ltd Supreme Court civil appeal number 22 of
2007 the judgment of court delivered by Honourable Kanyeihamba J.S.C. at
page 10 of the judgment decided that:

"in my opinion, it is only in the relation to what the law specifically provides for
as its purpose and functions that the Uganda Revenue Authority may sue and be
sued in its corporate name. In this respect and as a scheduled corporation, it
would be entitled to the right of receiving a statutory notice under the Civil
Procedure and Limitation (Miscellaneous Provisions) Act cap 72…”

Also in Pamba Vs. Coffee Marketing Board (1975) HCB 369, The Plaintiff
sued the defendant as scheduled corporation for damages for personal injuries.
The defendant denied liability contending that the suit was incompetent, as no
statutory notice had been served as required under S.1 of the CP and
Limitation Miscellaneous Provisions Act. Held that; ‘‘by virtue of section 1 of
CPL (Misc Provisions) Act 1969, no suit can be instituted against a scheduled
corporation unless written notice has been delivered or left at the office of
Secretary of the corporation. Where service of statutory notice is denied, the onus
of proof of service of such notice is on the plaintiff…where no such evidence is
shown, the procedure was not followed, no suit could lie or be instituted against
the defendant corporation…’’

Rationale of Statutory Notice.

The object of a statutory notice is to give government the opportunity of settling

the claim or enable government to investigate the alleged cause of complaint.

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In the Supreme Court case of Kampala Capital City Authority v Kabandize &
10 Ors (CIVIL APPEAL No. 013 of 2014) the Supreme Court stated the
rationale for service of the Statutory Notice that it was to enable a statutory
defendant investigate a case before deciding whether to defend it or even settle
it out of court and held that it is still relevant and should not be done away
with. That an individual does not require as much time as the Attorney General
or Statutory body to investigate a matter before defending it. That while the
individual may have the facts on which to defend a suit readily available, the
Attorney General has to consult and seek instructions from the various
departments of Government before deciding on whether or not to defend a suit.

Mandatory or Directory Requirement

The requirement for service of statutory notice is directory and need not vitiate
a suit. In the Supreme Court case of Kampala Capital City Authority v
Kabandize & 10 Ors (CIVIL APPEAL No. 013 of 2014) the Supreme Court
stated that the question that remains to be answered is whether the
desirability of the requirement necessarily makes it mandatory. Court held that
failure to serve the Statutory Notice does not vitiate the proceedings and Article
126 (2) of the Constitution is instructive. That the provision is directory and
need not vitiate a suit. The facts and circumstances of each case must be taken
into account. That a party who decides to proceed without issuing the
Statutory Notice only risks being denied costs or cause delay of the trial if the
Statutory defendant was unable to file a defence because she required more
time to investigate the matter. That the emphasis should not be on the failure
to serve the Statutory Notice but on the consequences of the failure so long as
both parties are able to proceed with the case and Court can resolve the issues.
That parliament could not have intended that a plaintiff with a cause of action
against a Statutory defendant would be totally denied his right to sue even
where the defendant knew the facts and was able to file a defence as it was in

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this case simply because of the failure to file a statutory notice. Further held
that it would be an absurdity to interpret Section 2 of the Civil Procedure
(Miscellaneous Provisions) Act to mean that even where the Government, a
Local Authority or a Scheduled Corporation was already aware of the facts of
the claim and may even have taken steps to deal with the claim, it can then
turn around and plead that because no Statutory Notice was served on it, the
claim is vitiated and no suit can be filed in court against it. That this would be
a case where legal interpretation of a statute defeats substantive justice. That
could not have been the intention of the legislature.

Similarly in special circumstances, the word ‘shall’ in the Act had been earlier
construed as directory and not mandatory; Sarah Kafrika Mbonabukya V
NPART Tribunal Case No. 24 of 1999. A suit filed before the NPART Tribunal
against NPART, which was a scheduled corporation. Objection raised that the
suit was premature and unmaintainable because the notice of 60 days
prescribed under the CP & Limitation [Miscellaneous Provisions Act was not
given to the defendant.[ An ordinary notice of intention to sue had been
served]. Held; that the provision requiring service of a statutory notice must be
construed in relation to the NPART Statute and its objects. The Act was a
special enactment, which in case of conflict must be given effect over the other
enactments, which existed before it in order that its special scheme may be
attained. That the court would thus construe the word ‘shall’ as directory in
order to achieve the objects of the NPART Act. That insufficiency of the notice
was a procedural irregularity, which could only be said to be fatal if it would
cause substantial prejudice;

NB; scheduled corporations may be included in the Act by a subsequent

Statutory Instrument. Read; Sarah Kafrika Mbonabukya V NPART Tribunal
Case No. 24 of 1999.
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See the Civil procedure and Limitation (Miscellaneous Provisions) Act
(Amendment of schedule 3) order inserting the Electricity Regulatory Authority,
(ERA)

 Also note that; not all statutory corporations/corporation are scheduled

corporations.

[See Administrator General]

 Note the distinction between a company, a statutory corporation and a

scheduled corporation.

Form of a statutory Notice;

Section 2(2) of the civil procedure and limitation miscellaneous provisions Act
provides for the form of the statutory notice. The written notice shall be in the
form set out in the Second Schedule to the Act, and every plaint subsequently
filed shall contain a statement that such notice has been delivered or left in
accordance with the provisions of the section.

The notice shall state the name, description and place of residence of the
intending plaintiff, and intending defendant, nature of relief sought, the name
of the court in which the suit is to be filed and facts constituting the cause of
action, value of subject matter.

See Rwakasoro Vs Attorney General HCCS No. 711 of 1977.The plaintiff

filed a suit against the A-G and sent a statutory notice to the A-G but the
defendant’s counsel raised a preliminary point of law that the notice did not
disclose a cause of action. Unless sufficient facts are disclosed in the statutory
notice Government may not know what the claim is about. In the instant case
the information given in the notice was meaningless because nothing was
shown about the deceased and the accident to make the government
vicariously liable for damages. It was good practice for the advocate to annex a
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copy of the intended plaint to the statutory notice so that all relevant and
necessary facts are known to the person to who the notice is given. No valid
notice was given to the A-G and time has not lapsed.

A statutory notice should ordinary constitute facts giving rise to the cause of
action and should be consistent with the pleadings. Dr. J.W Rwanyarare &
ors v AG HMA No 85/93

 However, the contents of a statutory notice are directed or limited by the

peculiar circumstances of each case; See Katwe Butego Division LGC V
Masaka Municipal Council MHCCS No. 0011/2005 See also S.43 of the
Interpretation Act on substance of statutory forms.

Service of a statutory Notice;

Section 2(1) and the Fist schedule of the CP and Limitation Miscellaneous
Provisions Act provides for persons at or to whose office notice to be delivered
or sent. In case of the Attorney General notice is delivered to the Attorney
General, in case of local administration the notice is delivered to the Chief
Administrative Officer, in case of a municipal council the notice is delivered to
the Town clerk of the council, in case of a scheduled corporation notice is
delivered to the corporation secretary.

See Katwe Butego Division LGC V Masaka Municipal Council MHCCS No.
0011/2005; The statutory notice was served upon the chairman of the
defendant who allegedly transmitted it to the Town Clerk and the question was
whether service was duly effected. Service deemed to be effective in view of the
available evidence that the notice was received by the Town clerk for action.

 Whether notice must be delivered to specified officer; Katwe Butego

Division LGC V Masaka Municipal Council MHCCS No. 0011/2005;
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 Held; that the provisions of S.2 of the Act in as far as it relates to delivering
or leaving the notice at the specified office of the specified officer is only
directory and not mandatory.[see Article 126(2)(e)]

Proof of Service of a Statutory Notice; The burden of proving that the notice was
duly served is on the plaintiff; In Pamba Vs. Coffee Marketing Board (1975)
HCB 369, Held that; ‘‘…Where service of statutory notice is denied, the onus of
proof of service of such notice is on the plaintiff …’’See also Kampala City
Council V Nuluyati [1974] EA 400

 Effect of failure to plead that Statutory Notice was served; it is good practice
to always indicate in the pleadings that statutory notice was served and a
copy of the served notice must be attached; Kateme Ltd V Management
Training & Advisory Center[1998] 11KALR 18; Kibuuka Musoke Ag J.
held that failure to plead that statutory notice was served and to annex it on
the plaint was breach of a mandatory requirement. However, it was ancillary
to the requirement to serve the notice, which was in this case served. The
omission to plead service was therefore curable by way of amendment and
the application for leave to amend would be granted.

 Objection to a suit based on want of service of a statutory Notice must be

raised as a preliminary objection [ except where it may require formal proof];
Read; Apollonia Nakirya V Ssekataba and Anor CACA No. 38 /2003 for
the proposition that the question of statutory notice being wanting should
be raised as a preliminary point of objection for determination and should
not be raised after trial. Read Katwe Butego Division LGC V Masaka
Municipal Council MHCCS No. 0011/2005;

Exceptions to the requirement of a Statutory Notice;

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Statutory Notice may be waived in cases involving applications for enforcement
of fundamental rights and freedoms guaranteed by the constitution;

In the cases of Dr. Rwanyarare vs. Attorney General (Constitutional

Petition No. 3 of 2002) and Greenwatch vs. Uganda Wildlife Authority
(Misc Application No. 92 of 2004) are that where the rights and freedoms of
people are being infringed or about to be infringed and there is ‘‘need for court
to take pre-emptive action in order to prevent or forestall damage from the
alleged violations’’ the requirement of the Statutory notice cannot apply.

See TEAN V A-G /NEMA Misc. Application No. 29 of 2001, BATU V TEAN HCC
Application No. 27/2003; action founded on provisions of the constitution in
relation to protect and prevent violation of human rights not to be constrained
by statutory procedural requirements as such provisions would hinder
administration of substantive justice.

Circumstances where a statutory notice is waived on ground of unfairness and

public interest; See Kanyeihamba JSC In the case of The Commissioner
General Uganda Revenue Authority v Meera Investments Ltd ((CIVIL
APPEAL NO.22 OF 2007 held that it is only in relation to what the law
specifically provides for as its purpose and functions that the Uganda Revenue
Authority may sue and be sued in its corporate name. In this respect and as a
scheduled corporation, it would be entitled to the right of receiving a statutory
notice under the Civil Procedure and Limitation (Miscellaneous Provisions Act,
Cap 72. 
However, the rights, powers and obligations prescribed under the Uganda
Revenue Authority Act are not exclusive to the Authority. It is thus abundantly
clear that the Commissioner General is a competent party to a suit under these
Acts. Certainly, if he or she can sue to recover tax, he or she can be sued by a
party unhappy with the tax assessments made by the Commissioner
General or officers under him or her.
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 TOPIC IV

COURT FEES

Assessment, Payment, Time of Payment of Court Fees and the Fling Process

 Court fees must be paid in accordance with the Judicature (Court Fees, Fines
& Deposit Rules SI 13-3. [See copy of the fees structure] Read Order 9 r.16 and
O.7 r.11(c) on implications of non payment of fees and payment of insufficient
fees.

 Court fees depend on the value of the subject matter of the suit and
proceedings are deemed to be filed when the fee is paid; Musango Vs
Musango(1979) HCB 226 Held: That the proceedings were deemed to be

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 filed when the appropriate fees is paid in court such fees being dependent
on the value of the suit.

 General rule is that as a matter of the law, documents cannot validly be

filed in the civil matter until fees have either been paid or provided for by a
general deposit from the filing advocate which authority has been given to
decide court fees.

In Unta Exports Ltd-vs- Customs ( [1970] EALR 648) the plaint was
lodged in the registry for filing on the 14 th September 1968 and the court
fees were paid on the 16 th September 1968 which was already out of time.
Goudie, J observed at page 649 that;

“I have no doubt whatsoever that both as a matter of practice and

also as a matter of law documents cannot validly be filed in the civil
registry unless fees have been paid or provided for by a general
deposit from the filing advocate from which authority has been given
to deduct court fees”. He then ruled that the plaint was filed out of time,
having not been properly filed until fees paid on 16th September 1968.

The principle in Unta Exports Ltd-vs- Customs ( [1970] EALR 648) was applied
in the case of Central Electricals International Ltd & Anor vs Prestige
Investments Ltd HCMA No. 625 of 2011 Justice Hellen Obura holding that
every lawyer ought to know that documents are only validly filed upon payment
of court fees. That there are many authorities to that effect. See the case of
Babihuga Winnie v Matsiko Winfred, Election Petition Application No. 14 of 2002
where the Court of Appeal held that documents are properly filed in court after
payment of court fees. See also Ndaula Ronald vs. Hajji Naduli Adbdul & Anor
Electoral Petition Appeal No. 20/2006 and Pinnacle Projects Ltd v Business in
Motion Consultants Ltd, Miscellaneous Application No. 362 of 2010 where the
court quoted with approval the observation of Goudie J in UNTA Exports Ltd vs

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Customs [1970] EALR 648 at page 649. Court held that in view of the settled
principle of law, the amended WSD and Counter claim was filed on 24 th
October 2011 when it was lodged at the court registry and sealed by the
Registrar after the court fees were paid, that the endorsement made on the 20 th
October 2011 was therefore irregular since court fees had not been paid.
However that notwithstanding, the court on its own motion was inclined to
exercise power given by court by section 98 CPA and section 33 Judicature Act
to enlarge time for filing the amended WSD consequently validated the WSD
and counter claim that was filed on 24 th October 2011 and further ordered for
payment of the correct amount in accordance with the rules that govern
payment of court fees.

Remedy for Non Payment, Less payment or Late Payment of Court Fees

The proviso to R.6 of the court fees, fines and Deposits rules confers
discretionary power to court to make orders for a defaulting party to pay the
proper fees. Such an order is made in the in the interest of justice and must be
done judiciously. The circumstances of any particular case must be weighed.

In the Supreme Court case of Lawrence Muwanga v. Stephen Keyune, S.C.Civil

Appeal No. 12 of 2001 Maliya& 3 Ors [1992-1993] wherein Tsekoko, JSC cited
with approval Manyindo J’s (as he then was) holding in Yese Ruzambira v.
Kimbowa Builders & Construction Ltd (1976) HCB 278, in which the learned
judge stated:- ‘‘None payment of Court fees could not affect a judgment entered
by Consent and that the remedy for non-payment of fees was to rely on rule 6 of
the Court Fees, Fines and Deposit Rule (Cap 41) to order the defaulting party to
pay the necessary fees to the Court.’’ The Learned justice also upheld Justice
Engwau’s holding in an earlier appeal before the Court of Appeal wherein he
held:- “A complaint against non - payment of court fees is a minor procedural
and technical objection which does not; and should not, affect the adjudication of
substantive justice as envisaged in Article 126 (2)(e) of the 1995 Constitution of
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Uganda. The remedy for non-payment of Court fees would have been the
invocation of Rule 6 of the Court Fees and Deposit Rules (Cap.41) to order the
defaulting party to pay the necessary fees to the Court”. Justice Tsekoko cited
Rule 6 and held that the proviso to Rule 6 gives discretionary power to court to
make orders for a defaulting party to pay the proper fees. Such an order is done
in the interest of justice and must be done judiciously.

 Court fees may be paid subsequent to the lodgement of the suit provided the
party is still within time to file the document, though the document will be
deemed to have been filed on the date of payment not lodgement [Bank
Arabe Espanol V Bank of Uganda SCCA No.48 of 1998: A court may
allow any payment of fees later on as long as the time within which payment
must be made has not lapsed. In that case, the fees were paid shortly after
filing the notice of appeal, but within the 14 days limitation. Court held the
notice of appeal as valid provided the fees were paid within the time allowed
by the rules. [See. O 33, suits by paupers].

In the case of AmamaMbabazi& A’ nor v. MusinguziGaruga James, C.A. Civil

Appeal, No. 12 of 2002; it was held, inter alia, that court can order for
payment at any stage of the proceedings where it finds that fees were not paid,
and if fees are paid the document and/ or any proceedings relating thereto
shall be as valid as if the proper fees had been paid in the first instance.

 Non payment of court fees resulting from a mistake by the court

registry[ both WSD and Counterclaim attract separate fees; See also;
Christopher Katuramu Vs Mariya:(1991-92) HCB 161; the applicant
challenged a ruling entered for the respondent by contending that no
counter claim existed at the time of the ruling as no filing fees had been
paid. [Mistake of the court official] Held: That there was no action filed unless
fees had been paid. The records of the court file only indicate that fees paid
by the WSD, which embodied the counter claim. There was an irregularity
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 on the part of the registry staff compared with the fact that the format was
not followed and the respondent could not suffer due to such irregularity.

 A plaint may only be struck out under O.7 r. 11(c) where court orders a
party who had paid insufficient fees to pay the balance but such a party
fails to comply; Byabazaire Grace Thaddeus v Mukwano Industries HC
Misc. Application 909/2000 [2002] 2 EA; for the proposition that where
insufficient fees is paid and the same is brought to the attention of court,
court should just order the defaulting party to pay and if the order is
disobeyed then an order rejecting the plaintiff .

In the case of Namatovu Susan vs. Baguma Augustine HCMA No. 1073 of
2013 Justice Madrama held that there were insufficient fees paid for the
counterclaim. That the file be forwarded to the accounts section of the court
for assessment of fees of the counterclaim and proceedings in the
counterclaim stayed until any assessed fees due have been paid. That a
counterclaim is a separate suit and attracts the same fees as a plaint.
Further held that the rest of the suit shall proceed and not affected by the
order of stay of the counterclaim. That in case the applicant fails to pay fees
for the counterclaim within 14 days from the date of assessment, the
counterclaim shall be struck off the record.

 Non payment of court fees may not affect the validity of a judgement or
court order; Yese Ruzambina V Kimbowa Builders & Construction
Limited (1976) HCB 278;Non payment of court fees could not affect a
judgement entered by consent and the remedy for non payment of fees was
to rely on r.6 of the Court Fees, Fines and Deposits Rules to order the
defaulting party to pay the necessary fees to the court.

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 Non payment of court fees may be remedied by late payment; Amrit Goyal
V Harichand Goyal & Othrs CACA No. 109/2004; That non payment of
fees is a minor technicality that which can be cured by Article 126(2) (e) of
the constitution; The omission to pay fees may be rectified by late payment;

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In the case of Kato & 12 Ors v International Holdings (U) Ltd (MISC.
APPLIC. No. 247 Of 2013 Court held that As far as non payment of court fees
is concerned, Order 9 rule 16 of the CPR provides; “Where on the day fixed
for filing a defence or to appear and answer, it is found that the
summons has not been served upon the defendant in consequence of the
failure of the plaintiff to pay the court fee or charges, if any, for the
service, the court may make an order that the suit be dismissed.”
That going by the dictum in the case of Unta Exports Ltd v
Customs (supra) a document is not properly filed until the fees are paid.
However, in the case of Lawrence Muwanga v Stephen Kyeyune CACA No.
20 of 2000 which was upheld on appeal in SCCA No. 12 of 2001, it was
held; “A complaint against non payment of court fees is a minor
procedural and technical objection which does not and should not affect
the adjudication of substantive justice as envisaged in Article 126 (2) (e)
of the 1995 Constitution of the Republic of Uganda. The remedy for non
payment of court fees would have been invocation of rule 6 of the Court
Fees, Fines and Deposit Rules to order a defaulting party to pay the
necessary court fees.”   That the court file was endorsed with a payment
stamp for the chamber summons. A fee of 1500 under receipt No. 1827451 was
paid on 11/4/2013 and endorsed with a stamp of this court although the
chamber summons was filed on 10/4/2013. That based on the above
authority, the applicants validated the filing of the summons the following day
by paying the requisite fees.

In the case of WinnieBabihuga vs Winnie Matsiko Election Petition No.13

of 2002) which concerned the effect of non-payment of court fees in time
accompanied by late payment, Court held that:- 
(a)   On the authorities available to us, non-payment of court fees is a minor
technicality which can be cured by article 126(2)(e) of the Constitution because
the Notice of Appeal was given orally in court which did not require payment of

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 court fees. (b)     In any case, omission to pay court fees by the respondent was
rectified by late payment of the court fees.

 See procedure of remedying the non/late payment of fees; Read; Electoral

Commission V Nambooze Betty Bakireke [2007] HCB 52 for the principle
that there is no illegality in late payment of court fees, it’s a minor technicality
curable under Article 126(2) (e)

 Non payment of court fees may be overlooked in an endeavour not to defeat

justice Betuco (U) Ltd & Anor. V Barclays Bank of Uganda Ltd HCT-00-
CC-MA-0243-2009; A complaint against non payment of court fees is a
minor procedural and technical objection which does not and should not
affect the adjudication of substantive justice as envisaged in Article 126(2)
(e) of the 1995 constitution of Uganda. It does not serve justice for a
judgement reached to be nullified merely for non payment of the court fees.
Justice would be defeated by just a mere procedural and technical a
normally which can be remedied by ordering the requisite fees to be paid.

The process of Filing Suits

 Suits are filed in the relevant court registry by lodging the relevant court
papers [pleadings] within the stipulated time [see limitation of actions] Read
W.H.R Wanyama V KCC & Anor. [2008] HCB 111 for the principle that an
offer to negotiate terms of a settlement between the parties to an action has no
effect whatsoever on when to serve a statutory notice or file an action. It is
incumbent on those who need to file documents to do so in time.

 Note; when and where to file suits; court documents are required to be filed
in the registry of the appropriate court[ see divisions of the High Court]
Athanasius Kivumbi V Hon Emmanuel Pinto Constitutional Petition No.
5 of 1997

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 TOPIC V

Modes of commencement of suits

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S. 19 of the CPA provides that every suit shall be instituted in such a manner
as may be prescribed by the rules. In the Supreme Court case of General Parts
(U) Ltd & Haruna Semakula vs. NPART SCCA No. 9 of 2005 it was stated
that it is trite that in civil matters the only mode of instituting suits are by
plaint, originating summons and petition.

Court actions/suits may be prescribed by any of the following process which

may be prescribed by law;

(a) Ordinary suit /Plaint

(b) Summary Plaint
(c) Originating summons
(d) Petition
(e) Notice of Motion
(f) Chamber summons
(g) Others may include: Memorandum of claim in the industrial court,
Complaint before the Labour Officer, Statement of claim, letter

The forms used for purposes of the Act shall with such variations as the
circumstances of each case may require, be those to be found in the
appendices and such other forms as may be from time to time be approved by
the High court-Order 49, rule 3CPR.

Ordinary suit / Plaint-O.4 CPR

This is the usual method of commencement where there is a substantial

dispute as to the facts. O.4 r.1 provides that every suit shall be commenced by
way of a plaint. [Only applicable to suits requiring considerable amount of oral
evidence, suits requiring specific pleading of particulars like negligence, fraud
e.t.c) Every plaint shall comply with rules contained in Orders 6 and 7 so far as
applicable-O4 r 1(2)

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 In the case of Medi vs Wandera HCC Appeal No. 102 of 2011 held that this
was a matter involving substantial issues of facts and should have been
instituted by way of ordinary suit in accordance with Order 4 rule 1 of the Civil
Procedure Rules. Reference was made to the case of General Parts (U) Ltd &
Haruna Semakula vs. NPART SCCA No. 9 of 2005 where it was held that the
only modes of instituting suits is by plaint, originating summons or petition.
That a notice of motion is not an alternative mode of instituting suits. That
Order 4 r 1(i) of the civil procedure rules provide that every suit shall be
instituted by presenting a plaint to the court or such officer it appoints for this
purposes. Su-rule (2) thereof requires that such plaint shall comply with the
provisions of Orders 6 and 7 of the Civil Procedure rules. The said Orders 6
and 7 of the Civil Procedure Rules regulate the form and content of the said
plaint. That it is accordingly clear that the only mode of instituting suits is by
plaint. Other modes in specific circumstances provided by law are Originating
Summons or by Petition.

In the case of Jacob Mutabaazi vs. The Seventh Day Adventist Church
HCCS No. 54/2009 it was held that O. 4 r.1 of the CPR requires ordinary civil
suits to be instituted by plaint.  That O.5 r.1 provides for service of summons
upon a defendant, against whom a suit has been instituted, requiring him/ her
to file their defence thereto.  The time within which such summons must be
filed upon a defendant is stipulated in O.5 r.2 and the mode of service is
outlined in rules 8, 9 and 10 of the same Order.

Every plaint shall contain the following particulars-O7r1.

(a) the name of the court in which the suit is brought;

(b) the name, description and place of residence of the plaintiff, and an address for
service;
(c) the name, description and place of residence of the defendant, so far as they
can be ascertained;
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 (d) where the plaintiff or defendant is a minor or person of unsound mind, a
statement to that effect;
(e) the facts constituting the cause of action and when it arose;
(f) the facts showing that the court has jurisdiction;
(g) the relief which the plaintiff claims;
(h) where the plaintiff has allowed a set off or relinquished a portion of his
or her claim, the amount so allowed or relinquished; and
(i) a statement of the value of the subject matter of the suit so far as the
case admits.

In the case of Edward Kakuba vs. Kamukama Steven & Stanbic Bank HCMC
No. 16/2007 an application brought by notice of motion under Art 139 of the
constitution, sections 33, 39(1) and (2) of the Judicature Act, Section 98 of the
Civil Procedure Act, and Order 52 of the Civil Procedure Rules for orders
directing the second respondent bank to transfer a sum from account of the
first respondent to applicant’s account. Court held that the procedure adopted
was unusual way of instituting a suit, contrary to the procedure established by
the Civil Procedure Rules. Further held that Section 19 of the Civil Procedure
Act provides that every suit shall be instituted in such manner as may be
prescribed by the rules. That the Civil procedure rules have an order devoted to
institution of suits. Order 4 r 1 (1) states that every suit shall be instituted by
presenting a plaint to the court or such officer as it appoints for this purpose.
The plaint must comply with the requirements set out in Order 6 of the Civil
Procedure Rules. Further held that it is possible to commence other actions by
plaint, but this must be specifically provided for at law. That the approach of
the applicant in these proceedings does not comply with any known procedure
authorised by law to commence civil proceedings of the nature he has
commenced. That he has commenced proceedings by way of notice of motion
and wants judgement on the basis of such a proceeding. That the applicant
has failed to satisfy court the law authorise an ordinary action for recovery of

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money to be commenced, proceeded with and concluded in this manner, as
though it was an interlocutory matter. The applicant ignored express
provisions of the law as to institution of suits and instead extensively called in
aid provisions of the constitution, the Judicature Act, the civil procedure Act
and Civil procedure rules that are not helpful to the cause.

Summary Procedure-O.36 CPR

O.36 CPR restricts suits to claims based only on contract or land. Summary
procedure is instituted by presenting a plaint in the form prescribed endorsed
‘Summary Procedure Order XXXVI’ and accompanied by an affidavit made by
the plaintiff, or by any other person who can swear positively to the facts,
verifying the cause of action, and the amount claimed, if any, and stating that
in his or her belief there is no defense to the suit-O.36 r 2 CPR.

In the Supreme Court case of Post Bank (U) Ltd vs. Ssozi SCCA No. 8/2015
Tumwesigye JSC held that O. 36 was enacted to facilitate expeditious disposal
of cases involving debts and contracts of a commercial nature to prevent
defendants from presenting frivolous and vexatious defenses in order to
unreasonably prolong litigation. That apart from assisting the courts in
disposing of cases expeditiously, O.36 also helps the economy by removing un
necessary obstructions in financial or commercial dealings. Court further held
that there is no doubt that O.36 r2 restricts suits to claims based only on
contract or land as spelt out in rule 2. Therefore, any claim based on a different
cause of action would have to be brought by way of an ordinary suit and not
under O.36.

Summary suit to be commenced by a specially endorsed summary plaint

accompanied by a valid affidavit Shelter ltd v Anastazia Nakkazi HCMA No. 113
/2005

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[NOTE: Summary Procedure will be covered as an independent topic in
semester II)

Originating Summons-O.37CPR.

Order. 37 CPR; states that the circumstances and categories of persons who
may take out originating summons.

Originating summons is a term of art referring to a limited and special class of

summons and means a motion that originates the proceedings in question. St
Benoist Plantations Ltd V Jean Emile Adrien Felix [1954] 21 EACA 105

Circumstances under which Originating Summons is Applicable

Originating summons should be adopted where the matters are simple and
straight forward otherwise where the suit relates to disputed facts and
complicated question of law, the plaintiff should proceed in the ordinary way by
plaint.

It is meant to be a simple and speedy procedure and its merits are based on
the fact that there are no pleadings involved or in general no witnesses the
questions for decision being raised directly by the summons itself and the
evidence given by affidavit.

In the case of In  Vicent  Kawinde T/A Oscar  Associates V Kato  HCCS

4/2007(unreported) relying  on  Kulsubai  V Abdulhussein ( 1957) EA 699 it
was held  that: “Such procedure was intended so far as we can judge to enable
simple matters to be settled by the court  without  the expense  of bringing 
an action in the usual way, not  to enable  the court to  determine  matters
which   involve a serious questions.”

In a Zanzibar High Court case, reported in the Eastern Africa Law

Reports, viz; KulusumbaiVrs. Abdul Hussein (1975) EA 708.  It was held that

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the procedure by Originating Summons was intended to enable simple matters
to be settled by the Court without the expense of bringing an action in the
usual way, not to have Court determine matters which involve a serious
question.   Similarly in NakabugoVrs. Serunjogi (1981) HCB 58, it was held
that it is trite law that when disputed facts are complex and involve a
considerable amount of oral evidence, an Originating Summons is not the
proper procedure to take.

In the case of Sentongo Harriet V Esther Gloria Namusisi (ORIGINATING

SUMMON NO. 22 OF 2009) the applicant sought court to declare the child,
OmallaGoria Valentine as an orphan and beneficiary of the estate of the late
Charles Goria as evidenced by Annexture “A”, the Baptism Certificate and the
photographs attached as Annexture “B” on the court file. Court citing O.37 r 1
CPR held that court was satisfied that the applicant is the mother of the child,
Omalla Valentine, the son of Goria Charles, deceased, who has brought this
application for determination of whether the child is an orphan and a
beneficiary of the estate of his late father, Goria Charles (deceased) and that
this is a fitting case.

Circumstances where Originating Summons is not Suitable Procedure

Originating Summons is inapplicable to complex cases that involve a

considerable amount of oral evidence. Where the matter is contentious and
would need to receive or take evidence to prove or disapprove the allegations
then Originating summons is not applicable. Simple and speedy procedure and
its merits are that no pleadings or witnesses are involved. Questions for
decision are raised directly by the originating summons and evidence given by
the affidavit. [a deponent may however be cross examined on the contents of the
affidavit see Order. 19 R 2 CPR

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In the case of Nakabugo Vs Francis Drake Serunjoji [1981] HCB 58: Held: It
is trite law that the disputed facts give complex and involve a considerable
amount of oral evidence; originating summons is not the best procedure to
take. That the procedure of originating summons was to enable simple matters
to be settled by court and take up the matter in the usual but not to determine
the matter involving serious questions.

Official Receiver V Sudhev [1970] EA 243; Originating summons is not a

procedure by which decisions on disputed questions of fact ought to be
obtained; that its ordinarily not advisable to employ an originating summons
for hostile proceedings against a trustee and the procedure is quite unsuitable
where the facts are in disputes the evidence is by way of affidavit.

In the case of Kaggwa and 10 others HCCS NO. 175 of 1993, arising from
Miscelleneous No. 27/85, J. Ntabugoba held that, since the application for
revocation was based on fraud, it is not enough to rely on O34 r 10, now O.37 r
1, affidavits allows court to proceed by ordinary suit to prove allegations of
fraud.

In the case of Humphrey Opio vs. JasferOkot, HCMC 051/02 Justice Kagaba

held that, originating summons deal with matters which are not contentious. 
That an application to have a grant of Letters of administration revoked is a
contentious matter requiring evidence and an application by originating
summons is wrong. He went on to say, the suit brought under O34 r 1 now
O37 r 1, is for the court to determine whether or not to determine whether to
revoke the Letters of Administration to the plaintiffs and whether the defendant
is guilty of gross misconduct and has willfully wasted and misappropriated
monies and should be ordered to render an account of the monies due in the
estate, that has come to his possession on account of being an administrator of
the estate or Whether cost of the proceedings be met by the defendant
personally. The Learned Justice held that the procedure in O34 (now 37) of the
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Civil Procedure Rules is created and intended to deal with simple and non
contentious matters.  That it is intended in situations where there would be no
need of rendering or taking evidence in order to arrive at the relief prayed for. 
It deals with reading and interpreting a document on its face value without
resource to supplementary evidence. That where the matter is contentious and
would need to receive or take evidence to prove or disapprove the allegations in
the Originating summons, then the particular procedure is not applicable.

Originating Summons suitable in construction of a deed, will or other written

instrument O.37 r 6 CPR. Other instrument means instruments related or
similar to deeds or wills. In the case of Testimony Motors Ltd vs.
Commissioner of Customs URA civil Suit No. 4/2011 held that an analysis
of O.37 r 6 discloses pertinent ingredients, the first of which is that there has
to be a person claiming to be interested under a deed or will or other written
instrument. Secondly the originating summons should be for determination of
a question of construction arising under the instrument in issue. The term
instrument encompasses all categories of instruments mentioned under O.37 r
6 CPR. Thirdly the question of construction must result in declaration of the
right of a person interested in the construction of the instrument. Fourthly, the
person applying the originating summons for determination of the question
must have an interest in the outcome of the question. That a question of
construction under O.37 r 6 CPR only arises when there is a controversy as to
the meaning, scope, purpose, intention, ambit or application of instrument or
any part thereof. The purpose of the construction is to have the correct
meaning, purpose, scope, intention, ambit etc applied in the interest of person
having an interest in the question of construction. That the words or other
instrument under O.37 r 6 do not include an Act of parliament. The word has
to be construed ejusdem generis as referring to other things such as wills,
deeds and other private documents not statutory instruments or Acts of
parliaments. That the power of court to decide whether to issue an originating

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summon is vested in the judge under O.37 r 8 (2) CPR. Where the judge signs
the originating summons, the act of issuing summons is complete. A judge is
functus officio as far as the issuance by signing of the originating summons is
concerned. A judge is however not functus officio for purposes of determining
other matters after issuance of the originating summons for simple reason that
the rules allow the judge to dismiss the originating summons after it has been
issued for not being appropriate in the circumstances. The court asses the
pleadings of both parties to determine this question under O. 37 r 11 CPR but
prior to that court considers the pleadings of the plaintiff only.

In the case of Yesero Mugenyi Vs Registrar of the High court & Ors. [1977]
HCB 80; Words other instrument in rule 5 of order 34[now 37] to be read
ejusdem generic meaning that general words must be restricted to those
mentioned. Other instrument means instruments related or similar to deeds or
wills and a practising certificate fell outside that category. Procedure adopted
in cases requiring determination of a point of law or construction of certain
questions of law and straight interpretation of statutes.

In the case of Sesam Energetics Ltd v Electricity Regulatory Authority

High Court Civil Suit Originating Summons No. 003 of 2014 the Plaintiff
brought suit by Originating summons for the interpretation of The Electricity
(License Fees) Regulations, 2003 SI 20//2003 and The Electricity (License
Fees) (Amendment of Schedule) Instrument 2011 SI 24/2011 to determine
their legality. The issue for determination before the honourable court was
whether the dispute was properly brought to court by way of an originating
summons. Court held that originating summons are envisaged in matters to do
with determination of issues of trust, administration of estates, sale and
purchase of land, mortgage, dissolution of partnerships which limits its scope
since the laid out categories cannot be by any imagination stretched and hence
no room by the rules themselves is given for other matters to utilize it. That it

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seems that the term "instrument “encompasses all categories of instruments
mentioned under Order 37 Rule 6 of the said Rules. The term “written
instrument” is construed e jusdem generis as being of the nature of things
such as deeds or wills, powers of attorney or other written instruments. Court
finally held that the questions raised by the Plaintiffs are not questions of
construction of any other instrument.  Secondly, that the words "or other
instrument" under order 37 rule 6 do not include a Statutory Instrument. The
words "or other instrument"  purported to be called into action a here would, 
have to be construed e jusdem generis as referring to things such as wills,
deeds and other such private documents. It does not refer to a Statutory
Instrument.

 Applicable to relief for vesting orders in clear cases where the purchase is
not contested; R. Hajji Vs Sulaiman Lule: A purchaser of land sought a
vesting order to transfer land into his names and since had not yet been
completed he proceeded under originating summons, O.37 r 3. Held: That a
purchaser of immovable property may take out originating summons for
determination of questions that may arise irrespective of any claim or
questions connected with the fact of sale not being a question affecting the
existing validity of the contract.

 Applicable where the statute requires a proceeding to be originated by

summons, E V E [1970] 604; that where the statute requires a proceeding
to be originated by summons, this means originating summons. A summon
may either be a summons by court to a defendant to do an act or it may be
an application to a court for a relief.[ Compare Joseph Bayego V Chief
Registrar of Titles on the difference between summons and may summon

 Nature of Originating Summons;

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 Patrick Rwekibira V Muwagibu Kamya [1972] 2 ULR 166; Saed J that
O.34 R.7[Now O.37] CPR required that O.S to be presented ex parte to a
judge in chambers with an affidavit setting forth concisely the facts upon
which the rights to relief sought is founded.

 NB [The application must cite the law under which the applicant is
proceeding though failure to do so or citing the wrong law may not be fatal if
the application is clear as to what remedy is being sought and there is a law
providing for the same. Kawooya V Naava [1975] HCB.

Procedure & Practice of O.S.

In the case of Mayanja Bosco vs. Kasikururu Louis Okumu & Ors HC OS.
No. 5/2008 held that the procedure for making an application to court to
foreclose a mortgaged property is by O.S under O.XXXVIII R 4 CPR. That
rule 8 of the same order provides for practice upon application of summons

Suits by Petition:

In the Supreme Court case of General Parts (U) Ltd & Haruna Semakula vs.
NPART SCCA No. 9 of 2005 it was stated that it is trite that in civil matters
the only mode of instituting suits are by plaint, originating summons and
petition.

Applicable in Divorce matters

The Divorce Act Cap. 249 and Divorce rules provides for filing a petition for
dissolution of marriage.

Applicable in constitutional petitions.

Article 137(1) & (3) of the 1995 Constitution as well as Rules 3,4,5 and 12 of the
Constitutional Court (Petitions and References) rules. See Mabirizi & Ors vs Attorney

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General Consolidated Constitutional Petitions Nos. 49 of 2017, 3 of 2018, 5 of 2018,
10 of 2018 and 13 of 2018.

In the case of Charles Harry Twagira vs A.G & Ors SCCA No. 4/2007 held that where
a claim of redress of a right or freedom is subject to interpretation of the provisions of
the constitution, the claim should be via the constitutional court under Article 137
by petition. Where the claim is in respect of a right or freedom that is clearly
protected, it should be by a plaint in any other competent court.

Applicable in Insolvency proceedings

See the Insolvency Act, 2011

Applicable in Company causes

See section 247,248 and 249 of the Companies Act No. 1 of 2012. See also Kigongo
vs Mosa Courts Apartments Ltd (Company Cause No. 01 of 2015)

Petitions in Company matters are made under Order 38 of the Civil Procedure Rules
for certain causes or matters specified therein.

Applicable in election petitions

See the Parliamentary Elections Act

See also the Presidential Elections Act.

Petitions either accompanied by affidavits or verified and should be commissioned;

Dr. James Rwanyararee & Anor V AG Constitutional Appeal No. 1 of 1999
Nelson Sande Ndugo V EC HCT -01-CV-EP 0004/2006; Re Edith Nassaazi
Adoption Cause No. 6 of 1996

Suits by Originating Notice of Motion:

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Ordinarily an originating motions or originating chamber summons is
prescribed by statute as the procedure for commencing an action in a court of
law. Notices of motions and chamber summons are for interlocutory
applications and cannot commence civil proceedings or suits unless specifically
prescribed by the law under which they are made in which case they are
originating summonses or motions.

See the Judicature (Judicial Review) Rules 2009.

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In the case of Kawuki v Commissioner General Uganda Revenue Authority
(Miscellaneous Cause No 14 of 2014) the Applicant filed an originating Notice
of Motion under section 98 of the Civil Procedure Act. The Applicant's
application was made by way of Notice of Motion under the provision
presumably of Order 52 of the Civil Procedure Rules which prescribes the
procedure by notice of motion though it was not cited. The Applicant's
application was by definition an originating motion because it purported to
commence an action in the High Court when there was nothing pending before
the court. It was not an interlocutory application but purported to be an
original action commencing proceedings. Madrama J (as by then) held that
ordinarily an originating motions or originating chamber summons is
prescribed by statute as the procedure for commencing an action in a court of
law. An action can only be commenced in court in a manner prescribed as
envisaged under the Civil Procedure Act. That ordinarily Order 52 of the Civil
Procedure Rules deals with notices of motion and is often taken to be for
purposes of interlocutory applications. In fact Order 4 rules 1 (1) of the
Civil Procedure Rules provides that:"Every suit shall be instituted by
presenting a plaint in the court or such officer as it appoints for this
purpose."That the rule strongly suggests that actions in courts of law are
commenced by presenting a plaint to the prescribed officer appointed for that
purpose. Exceptions to commencement of an action in the High Court by way
of a plaint under Order 4 rule 1 (1) of the Civil Procedure Rules have to be
prescribed by enactment which prescribes the procedure for commencing an
action in the court. Other modes of commencement of actions are provided for
by the Civil Procedure Rules. Section 19 of the Civil Procedure Act merely
provides that a suit may be instituted in any manner prescribed. Section 2 of
the Civil Procedure Act defines a suit as all civil proceedings commenced in
any manner prescribed. The word prescribed is also defined by the section 2 of
the Civil Procedure Act. It means prescribed by the rules. The conclusion
on this point is that an action has to be commenced in court in the manner
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prescribed by the rules or other statutory provision. That it is ordinarily
necessary to cite the rule which prescribes how a particular civil proceeding
commenced. Common law emphasizes the fundamentally of the procedure for
the commencement of proceedings. Non-compliance with the rules for
commencement of proceedings is normally fatal. Suits are instituted under
order 4 rules 1 of the Civil Procedure Rules by presenting a plaint to the court
or such officer as the court appoints. A suit may be presented under Order
36 by summary procedure (Specially endorsed plaint). A suit is originated
under Order 37 by Originating summons by executors, administrators,
trustees under deed or instrument, and any other person as creditor, devisee,
legatee, heir or cestuique trust (beneficiary), legal representative of a deceased
person or representative of any of them by assignment. Petitions in Company
matters are made under Order 38 for certain causes or matters specified
therein. It also provides that certain specified causes or matters may be
commenced by motion or summons. That other categories of suits are
commenced under statutory provisions which prescribe the mode or manner of
commencement of an action in court. That notices of motions and chamber
summons are for interlocutory applications and cannot commence civil
proceedings or suits unless specifically prescribed by the law under which they
are made in which case they are originating summonses or motions. The
Applicant’s application is not an application for judicial review under
the Judicature (Judicial Review) Rules 2009 for an order of mandamus,
prohibition or certiorari or for an injunction under rule 3 thereof. Applications
for judicial review are made by notice of motion in the form specified in the
rules. Furthermore it is not an application for enforcement of fundamental
rights and freedoms under Article 50 of the Constitution. It is simply an
anomaly not prescribed by any rules or statutory provision. 

Form of notice of motion

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 The law; Read; Order. 52(1) on applications by Notice of Motion supported by a valid
affidavit; Kibuuka Musoke v Tour and Travel Center Ltd HCT -00-CC-MA-0603-
2008; All application to court except as otherwise expressly provide in the rules shall
be by motion citation of wrong law if the procedure is correct is not fatal.

 Form of notice of motion; The notice of motion has to be in the form in the schedule;
Lyakiya Vs Attorney General The Employer received a written notice, which he
returned to the plaintiff’s advocate for signature. When the suit was called for
hearing, the state attorney contended that no notice had been given. Held: That a
written notice had to be in the form of schedule to which included space for the
signature of the plaintiff or his advocate and an unsigned notice was defective and
the action would be dismissed since the provision is mandatory.

 But See Katwe Butego Division LGC V Masaka Municipal Council MHCCS No.
0011/2005 See also S.43 of the Interpretation Act on substance of statutory forms.

 Signature and seal on Motion;

Joy Kaingana V Dabou Boubou [1986] HCB 59; whereas in practice, the notice of
motion carries signatures of the judge [now registrars] and the seal of court, these are
not a legal requirement and omission doesn’t render the application fatal.

 The practice of the court is to treat the Notice of Motion as the summons, thus the
Notice of motion ought to be issued by the Registrar/ deputy registrar and should be
signed and sealed as required by 0.5 r.1(5) CPRs; Read; Dairy Corporation V Opio
[2001-2005] HCB 113

Notice of Motion & Supporting affidavits

 Where the application is grounded on evidence by affidavit, a copy of that affidavit

intended to be used must be served with the motion. In such cases, the affidavit
becomes part of the application and the notice of motion is incomplete without the
affidavit. In the case of Joy Kaingana V Dabou Boubou [1986] HCB 59; it was held
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 that ‘‘where an application is grounded on evidence by affidavit, a copy of the affidavit
intended to be used must be served with the action. In such a case, the affidavit
becomes part of the application. The Notice of motion cannot of its own be a
complete application without the affidavit. Therefore in the instant case the
notice of motion alone was not enough’’

 There is no need for an affidavit where the application rests on a matter of law;
Odongkara V Kamanda [1968] EA 210(U)

 The rules are to be observed but irregularities of form may be ignored or cured by
amendment when they have occasioned no prejudice. In these matters of form,
courts are less strict [see article 126(2)(e) of the constitution. See also Castelino V
Leo Rodrigues [1972] EA 233;

 However, in Notay Engineering Industries V Superior Construction &

Engineering Ltd HCCS No. 702 of 1989, it was held that where the notice of
motion sufficiently makes reference to grounds contained in the affidavit filed with
the notice of motion, by that reference the contents of affidavit were incorporated in
the notice of motion.

 Development Finance company of Uganda Ltd vs Stanbic Bank Uganda Ltd &
Anor cc Misc. application No 88/99; Affidavit accompanying notice of motion was
headed “ affidavit in reply” held that this was a minor irregularity which was of no
consequence ( mere sly of the pen. But they don’t include where a party fails to
attach the lists mentioned in order 6 r 2 CPR . In effect, non attachment means a
party would have foregone his right to rely on the witnesses documents or authorities
not listed.

 Effect of distinct date on Motion and affidavit; Read Eng. Katwiremu V Mushemeza
Elijah [1997] II KALR 66

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 Whether motion must state the grounds on which the application is based;
Mugarula Mukiibi V Colline Hotel Ltd [1984] HCB 35; That the grounds of
application have to be set out in the notice of motion because O.48 r.3 CPR is
mandatory. If the notice of motion doesn’t contain the grounds of the application,
then it is fatally defective. That the affidavit is a separate document containing a
sworn statement of facts in support of the grounds of the application.

Notice of Motion and Applicable law.

 Whether the notice of motion must state the law applicable; Although the rules do
not specifically require a notice of motion to state the order and rules or other law
under which it is made, that it is usual practice and should be followed. Salim V
Boyd [1971] EA 550[K]. See Hon. MR. Justice Remmy Kasule V Jack Sabiiti & 2
Others HCCS No. 230 of 2006

 However, the citing of the wrong law doesn’t render the application invalid, as courts
will treat it as a mere technicality. See Kawooya V Naava [supra]

 Notice of motion under wrong law; Paragio Munyangira v Andrew Mutayitwako

HCMA No. 37/1993 . Application brought under S. 18 CPA and no rule was cited.
Held that the application was defective for failure to cite the rule under which it was
brought to court. See Odonkara vs Kamande (1968) EA 210

In the case of Intraship (U) Ltd Vs- G.N Combine (U) Ltd [1994] VI KALR 42
having established that the application therein had been brought under the
wrong law Justice Sempa-Lugayizi ruled that the question should be whether
the irregularity is serious enough to prevent the court from hearing and
determining it on its our merit. That the answer would depend on whether non
observance of the procedural rules in issue would lead to injustice. If it would
not, then the Court should be willing to over-look it otherwise it should not.
Chief Justice Benjamin Odoki in his judgment in Col. (Rtd) Dr.BesigyeKiiza
-Vs- Museveni Kaguta& Electoral Commission SC. Electoral Petition No. 1
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 of 2001. Observed that a liberal approach is in line with the Constitutional
enactment in Article 126 of the Constitution that courts should administer
substantive justice without undue regard to technicalities. That rules of
procedure should be used as handmaids of justice but not to defeat it. In
Alcon International –vs- KasiryeByaruhanga& Co Advocates [1995] 111
KALR 91 Justice MusokeKibuuka held that procedural defects can be cured by
the invocation of Article 126 (2) (e) of the Constitution. See also Allen
NsubugaNtanaga –vs- Uganda Microfinance Ltd & other HCT-00-CC-MA-
0426-2006.

Whether citation of the wrong law renders the application fatally defective; DFCU
leasing Co. Ltd v Nasole Faridah HCT -00-CC-MA 0074 -2007 Application brought
by chamber summons for consolidation of suit under 0.11 r. 1 and 2 CPR SI 75 – 1 –
questions whether citation of wrong instrument was fatal; Held Misquotation of the
statutory instrument number could not cause any injustice and could not have
misled the respondent. Just a minor technicality capable of being cured by articles
126 of the constitution.

 Wrong Procedure being adopted; Kibuuka Musoke as v Travobase Centre Ltd HCT
-00-CC –MA 308 /2008 applications dismissed because it was wrongly brought
under 0.27 r 10 and 12 CPR and commenced by chamber summons rather than
notice of motion.

 Hajati M Nagawa v Paulo Kajubu & Anor HCCS No.348/1976; Application by

notice of motion under the wrong law; and instead of chamber summons.
Proceedings to be vitiated for non compliance with rules of procedure only if injustice
is done to parties .Non compliance with the rules of procedure of the court which are
directory and not mandatory rules would not usually result in the proceedings being
vitiated, if in fact no injustices has been done to the parties.

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 Salime namukasa v Yosefu Bulya (1966) EA 433 UDO Udoma C.J that before the
provisions of section (98) can be invoked, the matter or proceedings concerned must
have been brought to the court, the proper way in terms of the procedure prescribed
by the rules .

 The applicable test is whether the irregularity is serious enough to prevent the court
from hearing the application and determining it on its own merit. If the non
observance of the procedural rules in issue would not lead to injustice, court should
be willing over look it, otherwise should to sanction it would be to uphold
technicalities; Alcon international v Kasirye Byaruhanga and Co Advocates
1995 ) III KALR 91 – see Intra ship (U) Ltd V GM combined Ltd 1994] VI KALR
42

In the case of Silver Springs Ltd vs. UMEME Ltd HCMA No. 291/2013 the Court
relied on the case of Saggu vs. Road Master Cycles (U) Lrd CACA No. 46/2000 that a
court should not treat any incorrect act as a nullity with the consequence that
everything founded thereon itself is a nullity unless the incorrect act is of a
fundamental nature. That the applicant here cited a wrong law and failed to bring the
application by chamber summons, however, no injustice has been shown to have
been occasioned to the parties. Therefore, the delusionary conduct by the applicant is
not fundamental nature to warrant court dismissing the appeal.

Notice of Motion and Summary of Evidence (0.6 r.2; CPR)

 Whether Notice must be accompanied by summary of evidence; O.6 r.1 requires

pleadings to be accompanied by a summary of evidence; the question is whether
failure to do so in an application by notice of motion is fatal; Sule Pharmacy Ltd V
The Registered Trustees of the Khoja Shia Hana Shari Jamat HCMISC. APPL
147/1999. It was held that notice of motion is a pleading and should be
accompanied with the named attachments. The application of O.6 r.1 in this case
becomes a mere moot because of the case requires no witnesses, documents or even

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 authorities except O.48 r.3 [now 52 r.3]. Ogoola P.J; that there are special
circumstances that are recognized with CPR in which the rule does not and can not
apply with full force and effect. Non compliance is not fatal.

 Richard Mirirumbi; Order 6 r .2 CPR was intended to avoid a situation in which

parties ambush their opponents with matters not contemplated

 The requirement that pleading shall be accompanied by a list of authorities is subject

to their being necessary for that pleading. What is to be relied upon is what should
be listed hence where there are no witnesses, no documents nor authorities to rely
on, there is no logic to list NIL though if they are ant not listed, the applicant risks
not being allowed to rely on them. Rajab Kyangwa v Pallis Town council and
Anor HC M. App. No 19 of 2000 Maniraguha J held

 Non compliance with the equivalent of order 6 r2 rendered an application improperly

filed before court and could be dismissed Richard Mwirumbo v Jada Ltd HCCS NO.
978/96

Suits by Originating Chamber Summons:

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A chamber summons which is the procedure prescribed for commencing a
matter under a stature is an originating chamber summons where there is no
suit in existence.

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In the case of Orient Bank Ltd v Avi Enterprises Ltd HC CIVIL APPEAL NO
002 OF 2013 the issue was whether the Respondents appeal is properly before
court? Madrama J (as by then) held that an appeal under the Advocates
(Taxation of Costs) (Appeals and References) Regulations is commenced under
regulation 3 (1) prescribes that it shall be by way of summons in Chambers
supported by affidavit which are set forth in paragraphs numbered
consecutively particulars of the matters in regard to which the taxing officer
whose decision or order is the subject of appeal is alleged to have erred. In
other words it is an originating chamber summons that commences an action
in the High Court by way of appeal for the first time and it is not interlocutory.
That Spry VP of the Court of Appeal in Boyes v Gathure [1969] 1 EA
385  held that a chamber summons which is the procedure prescribed for
commencing a matter under a stature is an originating chamber summons
where there is no suit in existence. He held as follows at page 386: “With
great respect, I think the learned judge was wrong and I think much of
the confusion arises from the heading “Chamber Summons” which is
commonly used for interlocutory summonses in Kenya but not, I think, in
England; certainly it does not appear in the forms contained in the
Annual Practice or Atkin’sEncyclopaedia of Court Forms and Precedents.
In fact, both originating and interlocutory summonses are heard, at
least in the first instance, in chambers, and “chamber summons” is not
a term of art to distinguish the one from the other. In the present case,
where the Respondent desired to move the court, where no proceedings
were in being and where the Act required him to proceed by summons,
such a summons could only, as I see it, be originating.” And at page 387:
“As I see it, procedure by way of summons may be originating or
interlocutory and when s. 57 of the Registration of Titles Act speaks of
applying “by summons”, it means by originating summons, if there is no
suit in existence, or by interlocutory summons, if there is.” Further held
that the appeal is a "suit" been commenced for the first time, where there is no
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 suit pending and the chamber summons under the Advocates (Taxation of
Costs) (Appeals and References) Regulations and particularly regulation 3 (1)
thereof is an originating summons in Chambers.

 Parties are summoned in chambers where the application is heard.

 See O.41 on injunctions[ compare requisites for notice of motion]

 When to proceed by chamber summons or Notice of motion; Chamber summons is

only resorted where the law expressly provides for the same; Where a party proceeds
by chamber summons rather than notice of motion, that renders the application
incurably defective; Salume Mukasa V Yozefu Bukya [1966] EA 433[s.98 could
only be resorted to if the procedure was correct and that rules of procedure were not
made in vain but to regulate the practice of the court; Kibuuka Musoke V Tour &
Travel Centre Limited HCMA No.603/2008; Kibuuka Musoke AS V Travobase
Center Ltd HCMA No.308/2008; Nasanga V Nanyonga [1977] HCB 319; Read
Article 126(2) (e)

 Chamber summons to be supported by valid affidavit and summary of evidence

especially where essential documents are referred to where affidavit is not enough,
compliance with 0.6 r 1(b) is a must and non compliance renders the application
liable to be struck off Jetha Bros Ltd v Mbarara Municipal Council .

 NB: Notice of motion and chamber summons relate to interlocutory applications;

However, note originating motion and originating chamber summons;[miscellaneous
causes rather than misc. app;ication; Salume Mukasa VYozefu Bukya [1966] EA
433

Suits by Other modes include:

d) Memorandum of claim in the industrial court

e) Complaint before the Labour Officer

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 f) Statement of claim, leffer

5. LDC V Edward Mugalu & Anor. [1990-91] KALR 103

6. Major Roland Kakooza Mutale Versus AG & IGG [2001-20051 HCB 110

7. Section 39(2) Judicature Act.

8. Prof. Oloka Onyango and Others and Amama Mbabazi, Yoweri Museveni
and EC Supreme court 2016

Pre-Entry Exam 2012/2013

Qn. 50 A Plaintiff filed an application by motion instead of summons in

chambers as prescribed by the relevant rules. Is the mistake fatal? Give a
reason for your answer

TOPIC VII

Issue of Summons: O.5 CPR:

 What is a summon?

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This is an official order of court requiring a person to attend court either to
answer a claim/ charge or give evidence. It is issued by court with a signature
and seal of the court.

 Types of Summons:
 Ordinary Summons: O.5: Issued by a court pursuant to a party presenting
a summons and it directs a defendant to file a defence in court within 15
days if he wishes to defend the claim of the plaintiff.
 Summons in a summary suit: O.36 r 4: Document issued by court in cases
where the plaintiff has filed a summary suit. It requires the defendant to
apply for leave of court to defendant the suit within 10 days after service.
[see distinction between ordinary summons and summons on a summary
plaint] Read Mugume & Anor. V Akankwasa [2008] HCB 159
 Originating Summons: Order. 37 CPR; states that the circumstances and
categories of persons who may take out originating summons.
 Notice of Motion; The practice of the court is to treat the Notice of Motion
as the summons, thus the Notice of motion ought to be issued by the
Registrar/ deputy registrar and should be signed and sealed as required by
0.5 r.1(5) CPRs; Read; Dairy Corporation V Opio [2001-2005] HCB 113.
Order. 52(1) CPR applications by Notice of Motion are supported by a valid
affidavit. Ordinarily an originating Notice of motions summons is
prescribed by statute as the procedure for commencing an action in a court
of law. See Kawuki v Commissioner General Uganda Revenue Authority
(Miscellaneous Cause No 14 of 2014)
 Chamber summons; Parties may be summoned in chambers where the
application is heard. See O.41 on injunctions. Chamber summons which is
the procedure prescribed for commencing a matter under a stature is an
originating chamber summons where there is no suit in existence. See
regulation 3 (1) of the Advocates (Taxation of Costs) (Appeals and
References) Regulations. See also section 24 RTA.
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 Hearing notice; requires a party to attend court on a particular day if he
wishes to take part in the proceedings. The notice must be served on the
defendant. Ahmad & Associates V Bauman (U) Ltd CACA 46/2000; The
applicant did not serve the hearing notice for leave to appear and defend on
the defendant in a summary suit. Held; that the applicant didn’t know of
the hearing date of the application to appear and defend in a summary suit.
Thus he or his counsel could not prosecute it. Court allowed the appeal and
remitted the application to the High court to be heard on its merits before
another judge. Read; Edison Kanyabwera V Pastori Tumwebaze[2001-
2005] HCB 98 for the principle that the rules applicable to service of
summons apply to hearing notices
 Taxation Hearing Notice: Issued against the Defendant in taxation matters
to attend taxation proceedings consider the Advocates Remuneration and
Taxation of Costs Rules
 Witness summons: O.15 CPR. The summons requires for attendance of a
person to give evidence or produce a document-O.15 r 5 CPR. O.5 CPR
regulating proof of the service of summons applies-O.15 r 8CPR.
 Notice of presentation of petition: A notice of presentation of a petition is
issued pursuant to the filing of a petition and it requires a person to enter
appearance by filing an answer to the petition or an affidavit in opposition
within the time stipulated therein or by the date indicated.
 Validity of Summons:
O.5 r 1(5) CPR requires every summon to be signed by the judge or such
officer as he or she appoints, and shall be sealed with the seal of the court.
E.A Plans Ltd V Roger Allan Birkford-Smith [1971] HCB 225; According
to O.5 r.1 (5) CPR a summon is a command from the court and must
therefore always be signed by the court itself or such officer to whom the
court delegates such power. An advocate was not one such officers and
summons signed by him thus lacked any force of law.

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  The practice of the court is to treat the Notice of Motion as the summons,
thus the Notice of motion ought to be issued by the Registrar/ deputy
registrar and should be signed and sealed as required by 0.5 r.1(5) CPRs;
In the case of Dairy Corporation V Opio [2001-2005] HCB 113 the
applicant M/s. Diary Corporation sought by notice of motion for orders
that execution of the taxation orders be stayed pending hearing of
substantive notion of motion. When the application came up for hearing
counsel for the respondent raised a preliminary objection to the effect
that the motion was incompetent because it was not signed and sealed
by the registrar. Court held that in practice, a notice of motion is treated
as summons and O.5 r 1(5) CPR requires that every summons be signed
by the judge or such officer as appointed and it is sealed with the court
seal. A notice of motion lacking these essential features is a nullity. The
reason for this requirement is to show that fees have been paid and
showing that it is issued under proper authority and out of proper office.
 In the case of Kaur Vs City Auction Mart:[1967] EA 108(U) by notice of
motion an application was made to vacate a caveat lodged against the
land. A preliminary objection by the respondent was that a notice of
motion was a suit within the meaning of s.2 CPA which should have been
signed and sealed by the court under O.5 r 1(5). Court held that the
requirement of signing and sealing the summons under O.5 r 1(5) CPR
are mandatory and failure to comply with them renders the summons a
nullity.
 In the case of Nakitto & Brothers Ltd vs. Katumba [1983] HCB 70,
held that a notice of motion falls within the meaning of a suit. That a
notice of motion not signed by the judge and sealed by the court doesn’t
fall within O.5 r 1(5) CPR and therefore the application was a nullity.
 The learned judge in Hussein Badda v Iganga District Land Board and
Others Misc. Applic. No. 479 of 2011 Zehurikize, J dealing with

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 applications for interim orders and temporary injunctions held that an
application is valid only when it has been signed by the judge or such
officer as he or she appoints and it is sealed with the seal of the court
within the meaning of Order 5 rule 1 (5) of the Civil Procedure Rules. He
referred to Nakito Brothers Ltd v Katumba [1983] HCB 70. He pointed
out at page 12 of his ruling that:- “An application is by its nature a
summons issued by court requiring the respondent to attend court
on the appointed date and time. It becomes valid only when it has
been given a date, signed and sealed. It is after the above has been
done by the court that the application is capable of validity giving
rise to another application”.
 There is a rebuttable presumption that a person signing a summons as
acting Deputy Chief Registrar has been duly authorized. A. Bauman
and Co. (U) Ltd Vs Nadiope:[1968] EA 306(U);
 That effect of an incorrect seal; the affixing of an incorrect seal of one
court on a document instead of the seal of another court is mere
irregularity and does not render the summons a nullity. In
NanjibhaiPrabohusdas& Co. Ltd vs Standard Bank Ltd [1968] EA
670 that: “The court should not treat any incorrect act as a nullity
with the consequence that everything founded thereon is itself a
nullity unless the incorrect act is of a most fundamental nature.
Matters of procedure are not normally of a fundamental nature.”

 Purpose of summons;

O.5 r 1(1) CPR provides that when a suit has been duly instituted a summons
may be issued to the defendant—

a) Ordering him to file a defence within the time specified therein.

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b) Ordering him to appear and answer the claim on the day specified therein

The function of summons is to fix the day for appearance. Read; Re. Pritchard
(1963] ALLER 873

 Service of Summons
 Section 20 CPA provides that where a suit has been duly instituted, the
defendant shall be served in the manner prescribed to enter an
appearance and answer the claim.
 O.49 r 1 requires every process issued under the civil procedure Act to be
served at the expense of the party at whose behalf it is issued unless
court otherwise directs. O.49 r 2 requires all orders, notices and
documents required by the civil procedure Act to be given to or served on
any person to served in the manner provided for the service of summons.
 Besides filing a written statement of defense, the defendant needs at the
same time to proceed and serve the plaintiff with a duplicate of the same
at the plaintiff’s address as required under the rules-O.8 r 19. Service of
an interlocutory application to the opposite party shall be made within
fifteen days from the filing of the application, and a reply to the
application by the opposite party shall be filed within 15 days from the
date of service of the application and be served on the applicant within
15 days from the date of filing the reply-O.12 r 3(2); O 51 r 9 such time
may be enlarged by consent of the parties under O 51r 7 CPR.

 Purpose and Rationale of Service of summons.

 Effective service of summons must make the defendant aware of the suit.
 In the case of Geoffrey Gatete and Another v William Kyobe SC Civil
Appeal No.7 of 2005 the judgment of the court was delivered by
Mulenga JSC with concurrence of the rest of the panel of Supreme Court

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 Judges that held that there can be no doubt that the desired and
intended result of serving summons on the defendant in a civil suit is to
make the defendant aware of the suit brought against him so that he has
the opportunity to respond to it by either defending the suit or admitting
liability and submitting to judgment.
 In the case of David Ssesanga v Greenland Bank Ltd
HCMisc.App.No.406 Of 2010 Madrama J (as by then) stated that
‘‘whether or not there was proper service is a fundamental question
affecting the right to be heard and should be tried first. It deals with the
basic principles of natural justice, which principle is one of fundamental
rights and freedoms enshrined under article 28 (1) of
the Constitution of the Republic of Uganda. Clause 1 thereof provides
that: “In the determination of civil rights and obligations or any criminal
charge, a person shall be entitled to a fair, speedy and public hearing
before an independent and impartial court or tribunal established by
law.”The question of fair hearing includes an element of a right to be heard
in the matter. The common law adage for this is “no one should be
condemned unheard”. It is not only the right to be heard but a right to
a fair hearing’’. The judge relied on the case of Geoffrey Gatete and
Angela Maria Nakigonya versus William Kyobe Supreme Court Civil
Appeal No. 7 of 2005 and held that there was no effective service on the
applicant because he was not aware of the suit. He only became aware
when he was served with notice to show cause why a warrant of arrest
should not issued against him.
 Time within which to serve Summons and effect of expired summons.
 O.5 r 1(2) CPR provides that service of summons shall be effected within
twenty-one days from the date of issue; except that the time may be
extended on application to the court, made within fifteen days after the
expiration of the twenty-one days, showing sufficient reasons for the

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 extension. O.5 r 1(3) is to the effect that where summons have been and (a)
service has not been effected within twenty-one days from the date of issue;
and (b) there is no application for an extension of time; or (c) the application
for extension of time has been dismissed, the suit shall be dismissed
without notice.
 In the case of Stop and See (U) Ltd v Tropical Africa Bank Ltd HC MISC.
APPLICATION NO 333 OF 2010 Madrama J stated that generally time is
reckoned from the time of filing of a plaint and the issuance of summons by
the
court. A summons should be served on a defendant within 21 days from
issuance.
 In the case of Western Uganda Cotton Co. Ltd V Dr. George Asaba & 3
Ors. HC CIVIL SUIT NO. 353 OF 2009 a preliminary objection was raised
that the counterclaim filed against the plaintiff and other counter
defendants was not duly served in accordance with the law and therefore
should be dismissed with costs. Counsel stated that he accessed a copy by
himself from the court records and filed a response having learnt about it
during the mediation process when counsel for the defendant referred to it.
The issue for court to determine was whether failure to serve the
counterclaim on the plaintiff was fatal so as to warrant striking off the
counterclaim as against the plaintiff. Court stated that the object of service
of a summons in whatever way it may be effected as stated in Mulla, The
Code of Civil Procedure, Volume 2, 17th Edition  at page 231 is that the
defendant may be informed of the institution of the suit in due time before the
date fixed for the hearing. Court held that since no prejudice or injustice has
been occasioned to the plaintiff, the omission to serve can be treat as an
irregularity which for purposes of Article 126 (2) (e) of the Constitution can
be safely ignored to ensure that substantive justice is done. Court was
persuaded by the holding in the Kenyan case of PragjiBhagwanji and

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 Company Ltd V Michael Krags and Others, Civil Suit No. 338 of 1995,
to the effect that; “The service of a process becomes effective when a party
who is targeted by that service becomes aware of the existence of that matter,
which he has to respond to”. That the object of service in this case was
achieved by counsel for the plaintiff’s action. As regards service on the other
three defendants to counterclaim who were not parties to the original suit
the situation was quite different. Court held that the rules for regulating
service of a summons was found under Order 5 of the CPR where rule 1 (2)
thereof provides that service of summons issued under sub-rule (1) shall be
effected within twenty one days from the date of issue. That this rule allows
extension of time upon an application to the court made within fifteen days
after the expiry of the twenty one days. That the procedure for this
application is by summons in chambers as provided in rule 32 of Order 5.
That conclusion was still in line with what the Supreme Court had earlier
stated in the case of EAGEN v EAGEN S.C.C.A. No. 2 of 2002 that where the
legislature prescribes something in mandatory language the relevant
provision is imperative and obligatory. Non-compliance would affect the
validity of the act done in disobedience of them. That Order 5 r 1 (2) is
couched in a mandatory language and Order 5 r 1 (3) clearly provides for
sanction where summons are not served within twenty one days and there
has been no application for extension of time. The sanction is dismissal of
the suit without notice. That this makes Order 5 r 1 (2) mandatory because
failure to comply with it has consequences. That Counsel’s prayer that the
court exercises its power under sections 96 and 98 of the CPA to validate
the service is misconceived in view of the finding, and recourse to Article
126(2) (e) of the Constitution in the circumstances of the case was an over
stretch and an abuse of this well intended provision. That the reasoning of
the Supreme Court was instructive in UTEX Industries v Attorney General
S.C.C.A. No. 52 of 1995 which was adopted in Kasirye Byaruhanga & Co.
Advocates v UDB S.C.C.A. No. 2 of 1997 to the effect that; “A litigant who
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 relies on the provisions of article 126 (2) (e) must satisfy the court that in the
circumstances of the particular case before the court it was not desirable to
have undue regard to a particular technicality. Article 126 (2) (e) is not a
magic wand in the hands of defaulting litigants”.
 In the case of Mulaggussi v Katabalo HC Misc. APPEAL No. 006 of 2016
the respondent raised a preliminary objection against the application that it
violates the provisions of O.49 r 2 CPR. The contention was that summons
were issued on 20th October 2016 and served on the respondent on the 23 rd
November 2017. Court relied on the supreme court case of Kanyabwera
versu Tumwebaze (2005) 2 EA 86, that what the rule stipulates about
service of summons, applies equally to service of hearing notices and held
that the provisions means that the reference to the procedure of service of
summons under O.5 r 1(2)(2) of the CPR applies to service of hearing notices
and applications for purposes of the provisions relating to the issuance and
service. Court further held that chamber summons were duly endorsed by
the registrar on the 20th day of October 2016 and that’s the date for which
computation of time for service began to run. That the application raises a
specific provision of the law which must be observed and cannot be
circumvented using the provisions of Article 126 of the Constitution. The
provisions of O.5 r 1 are couched in mandatory terms and that has been the
opinion in Orient Bank Ltd versus Avis Enterprises HCCA No. 2/2013, and
followed in Lubega Robert Smith & Ors versus Walonze Malaki; Civil Appeal
No. 036/2016 , all the above cases followed the supreme court in
Kanyabwera versus Tumwebaze (2005) EA 86 which held this rule is of
strict application. Court further held that service effected out of the
prescribed time without seeking extension, renders the application liable for
dismissal without notice and thus application is incompetent and ought to
be dismissed.

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 Where a defendant/respondent is not served but appears, the court may
exercise its discretion and allow the suit to proceed.
 A notice of Motion is served in manner provided for service of summons
under the provisions of O.5 which governs issue and service of summons. In
the case of Century Enterprises Ltd v Greenland Bank (in Liquidation)
HCMA 0916 of 2004 a preliminary application was raised that in an
application filed under O.33 (now O.36) r 3 and 4 CPR the applicant was
obliged to serve the respondent with notice and supporting affidavit within
the time stipulated under O.5 r 1. That the Notice of motion issued on
8/12/2004 and served on 3/2/2005 was out of time. He invited court to
have it struck out and order that judgment be entered for the plaintiff as
prayed in the summary plaint. Court held that under O.33 (now O.36) r4, all
that the Defendant has to show is that there is a triable issue of fact or law.
The defendant can do so by filing an application for leave to appear and
defend the suit. The application takes the form of Notice of Motion. That there
is no stated procedure under that order for service of such application on the
opposite party. However, under O.45 r 2, all such orders, Notices and
documents shall be served in manner provided for service of summons. That
it is noteworthy that the word used in the order is ‘shall’ and in the absence
of any other rule to the contrary, this takes us to O.5 which governs issue and
service of summons. Court further held that the time frame stipulated in 0.5 r
1 were certainly the mischief, or the unsatisfactory state of affairs, which the
amendment to the Rules in 1998 was meant to remedy. That it was targeted
at people who after getting summons for service on the opposite party just
went to sleep thereby contributing to unnecessary build up of case back log.
That it was imperative that in order to comply with the rules, an application
had to be made to court within 15 days from the expiry of the 21 days,
showing sufficient reasons, to extend the time within which to serve the notice
of motion. That the rules of procedure enjoin court to administer law and

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 equity concurrently and that Article 126 of the constitution enjoins courts to
administer substantive justice without undue regard to technicalities,
however, the law did not intend to do away with the rules of procedure and it
was not meant to be a magic wand in the hands of defaulting litigants and
should not be used to side step rules of procedure. (Utex Industries Ltd vs
Attorney General SCCA No. 52/95). However relying on the case of
Nassanga vs Nanyonga [1977] HCB 318, court held that the Civil
Procedure rules are a guide to the orderly disposal of suits and a means of
achieving justice between the parties and the same should not be used to
deny a party desirous of contesting. That while there is merit in the
respondent’s point of law regarding service of summon, court will hesitate to
allow this procedural lapse to over shadow the substantive concern of the
applicant and in the spirit of Article 126(2)(e) of the constitution, court was
inclined to disregard the irregularity. That while there is, on the one hand, the
necessity for the rules to be followed, there is, on the other hand, the need for
the courts to control their proceedings and not to be unreasonably inhibited
by the rules of procedure. That the idea is that the administration of justice
should normally require that the substance of all disputes be investigated
and decided on their merits, and that errors and lapses should not
necessarily debar a litigant from the pursuit of his rights (Banco Arabe
Espanol vs Bank of Uganda SCCA No. 8/1998) That while lack of
adherence to the rules has been noted with the seriousness it deserves, the
circumstances of the case require that the same be overlooked for the sake of
administering the greater interests of justice.
 Who can Serve Court Process
 O.5 r 7 civil procedure rules provides that where the court has issued a
summons to a defendant it may be delivered for service to any person for
the time being duly authorized by the court, to an advocate or an advocate’s
clerk who may be approved by the court generally to effect service of

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 process; or it may be sent by post or messenger to any magistrate’s court
having jurisdiction in the place where the defendant resides.
 Any person authorized by court or advocate or advocates clerk may effect
service of court process. Not any clerk can effect service. An advocate clerk
needs special permission of court. Mugume & Anor vs. Akankwasa [2008]
HCB 159 [See procedure of being approved as a court process server/clerk]

Rd Abdul Ssozi versus Post Bank Uganda Limited CACA No. 12/2010 (2015)

 Mode Of Service Of Summons:

 O.5 r 8 of the civil procedure rules provides for the mode of service. Service
of the summons shall be made by delivering or tendering a duplicate of the
summons signed by the judge, or such officer as the judge appoints for this
purpose, and sealed with the seal of the court.
 The duplicate is to be delivered and acknowledgement of service to be given.
When a duplicate has been delivered and tendered to the defendant
personally, his agent of the defendant or such other person is required to
acknowledge the original summons provided that if the defendant or his
agent refuses to sign, court may declare such summons to have been
served. The requirement that a duplicate be delivered or tendered is
mandatory and if not complied with, the service is bad. In the case of
Erukana Kavuna V Metha [1960] 305 (U) held that the requirement that a
duplicate be delivered or tendered is mandatory and if not complied with the
service is bad.
 O.5 r 14 of the civil procedure rules provides that where a duplicate of the
summons is duly delivered and tendered to the defendant personally or an
agent or other persons on his behalf, the defendant or such agent or other
person shall be required so to endorse. This rule is mandatory and non
compliance means that service has not been effected-Narshidas M Mehta
and Company Limited v Baron Verheyen (1956) 2 TLR 300.

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  Items to accompany summons
 O. 5 r 2 Summons shall be accompanied by a copy of the plaint, a brief
summary of the evidence to be adduced, a list of witnesses, a list of
documents and a list of authorities to be relied on; except that an additional
list of authorities may be provided later with the leave of court.

 In the case of Valery Alia Vs Alionzi John (HCCS NO. 157 OF 2010)
Madrama j (as by then) held that service of summons under order 5 of the
Civil Procedure Rules is not satisfied by service of the summons signed by
the registrar of the court only. Certain items are meant to accompany the
summons. The summons is an order of the court requiring the defendant to
file a defence within the prescribed time of 15 days and warning of the
consequences of non-compliance with the filing of a defence. It is a
fundamental rule of justice that before anybody can defend himself or
herself, he or she has to be notified of the particulars of the claim against
him or her. Article 28 of the Constitution of the Republic of Uganda provides
that in the determination of civil rights and obligations or any criminal
charge, a person shall be entitled to a fair, speedy and public hearing before
an independent and impartial court or tribunal established by law. Further
held that non-compliance with order 5 rule 2 of the Civil Procedure Rules
renders the proceedings an irregularity.

 The summons in substituted service however should indicate that the

defendants will obtain copy of the plaint at the registry of the court. In the
case of Jessy Technical Services Ltd & Anor v Ajay Industrial
Corporation Ltd &Anor(MISC. APPL. NO. 0617 OF 2012 AND MISC.
APPLI. NO. 616 OF 2012) Madrama j held that as far as the substituted
service is concerned, my decision in Valery Alia versus Alionzi John High
Court civil suit number 156 of 2010 refers. In that case I held that
summonses issued under order 5 rule 1 of the Civil Procedure Rules were

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 an order of the court. That Order 5 rule 1 (1) (a) of the Civil Procedure Rules
is explicit that the summons shall contain an order for the defendant to file
a defence within the time to be specified in the summons. Secondly Order 5
rule 2 provides that every summons shall be accompanied by a copy of the
plaint, a brief summary of the evidence to be adduced, a list of witnesses, a
list of documents and a list of authorities to be relied on. Rule 2 make it
imperative that the summons shall indicate the time within which the
defendant shall file a defence and secondly what must accompany the
summons. In the case of Valery (supra) the summons were advertised just
as in this case but were not accompanied by the items specified by rule 2 of
the Order. Consequently in that case it was found that there was no proper
service because there was no plaint and attachments thereto accompanying
the summons advertised in the newspapers. More so the summons
advertised advised the defendants that there is "copy of the plaint attached
hereto". However no copy of the plaint was attached to the summons
advertised in the newspaper. That apparently attaching a copy of the plaint
may be expensive to litigants. However it would be a compromise of the law
not to attach the plaint to the summons as provided by the mandatory
provisions of order 5 rule 2 of the Civil Procedure Rules. Perhaps, and this
is not indicated in the forms which are prescribed, the summons should
indicate that the defendants will obtain copy of the plaint at the registry of
the court. This seems to be the practice.
 Service on the Defendant in Person
 O.5 r 10 civil procedure rules provides for service to be on defendant in
person or his or her agent. Wherever it is practicable, service shall be made
on the defendant in person, unless he or she has an agent empowered to
accept service, in which case service on the agent shall be sufficient.
 In the case of Jessy Technical Services Ltd & Anor v Ajay Industrial
Corporation Ltd & Anor (Misc. Appl. NO. 0617 OF 2012 and Misc. Appli.

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 No. 616 of 2012) Court held that there was no personal service on the
second applicant as prescribed by order 5 rule 10 of the Civil Procedure
Rules. That the rule provides that service shall be effected personally on the
defendant or on an agent duly empowered to accept service. Rule 10 reads
as follows: "10. Service to be on defendant in person or on his or her agent.
Wherever it is practicable, service shall be made on the defendant in person,
unless he or she has an agent empowered to accept service, in which case
service on the agent shall be sufficient." Court further held that where it is
not practicable to effect service on the defendant personally, it may be made
on an agent empowered to accept service. The words “empowered to accept
service” is read in the context of recognized agents as prescribed by order 3
of the Civil Procedure Rules. An empowered agent is an agent recognized
under order 3 of the Civil Procedure Rules. Court further held that the
receptionist was not proved to be an empowered agent of the second
applicant/defendant by the affidavit of service of the process server. It was
not proved that the 2nd Applicant empowered the receptionist at the offices
of the first Applicant to accept service on his behalf. Acceptance of service in
the context of order 3 rule 1 is an "act" which is required in any court to be
done by a party. This is because service has to be made on the defendant
personally and therefore acknowledgement of service is an act to be done by
a party i.e. the defendant. Consequently the definition of recognized agents
by order 3 rule 2 of the Civil Procedure Rules is applicable. In that rule
agents are defined as persons holding powers of attorney authorizing them
to make appearances and applications and do such acts on behalf of the
parties. Secondly it means persons carrying on trade or business for and in
the names of the parties not resident within the local limits of the
jurisdiction of the court. Finally order 3 rule 5 of the Civil Procedure Rules
provides that besides the recognized agents described in rule 2 of the order,
any person residing within the jurisdiction of the court may be appointed an
agent to accept service of process. Order 3 rule 5 (2) specifically provides
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 that the agents so appointed shall be either special or general and the
appointment shall be by an instrument in writing signed by the principal
and a certified copy of which shall be filed in court. That the receptionist
described by the process server does not fit the description of an agent
authorized or empowered to accept service by the second respondent. Court
finally held that there was no personal service on the second
applicant/defendant as prescribed by the rules. In practical terms therefore
the registrar was right to advise service of summons by substituted service
as far as the second applicant is concerned.
 The function of summons is to fix the day for appearance and must be
served on the defendant in person Re. Pritchard (1963] ALLER 873 .
 Proper effort must be made to effect personal service; Katukulu V
Transocean[1974] 276 (CA-U)Held; That service of a plaint and summons
to enter appearance should be effected on the defendant personally and
where it is nor possible or practicable, the plaintiff should always proceed
by way of substituted service in accordance with the CPRs. The fact that the
defendant was never served personally with court process was sufficient to
show that they had never served the summons.
 Service on several defendants.
 O.5 r 9 civil procedure rules provides that where there are more defendants
than one, service of the summons shall be made on each defendant. In the
case of EAGEN V Ntende [1979] HCB 227; Held that since the plaintiff had
decided to join all the six defendants, the plaintiff brought upon himself the
duty to effect service on each of them. Failure to serve all of them was a
good cause to set aside the decree

 Service on Agents other than the Defendant

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 O.5 r 11: Service must be effected on the person upon whom the
summonses are directed unless he has an authorized agent. Service on an
agent is effectual. Erukana Kavuma Vs Metha[supra] The process server
for the plaintiff stated that he did not find the defendant at his shop and
served the summons on the defendant’s wife and obtained an exparte
judgment which was challenged. Held: That O.5 r 9 and O.5 r 11 was not
complied with because the duplicate copy of the summons was tendered or
delivered to the defendant’s wife, service was therefore bad. The process
server did not inquire as to the address of the defendant in India and for
how long he will stay there.
 In the case of Jas Projects Ltd v Emiru Angose HCT - CS - 280 – 2005
the issue was whether there was indeed effective service of summons on the
applicant. Court held that Order v of the civil procedure rules (CPR) as
amended provides order v r 11. “Wherever it is practicable, service shall be
made on the Defendant in person, unless he has an agent. Empowered to
accept service, in which case service on such agent shall be sufficient”. The
rule of thumb here therefore is that service of summons should be effected
on the Defendant in person. Where service on the Defendant is not
practicable then service should be on the Defendant’s agent empowered to
accept service. That in this case there was no service on the Defendant in
person but rather on a receptionist. Court further held that in order to have
effected service upon the said receptionist, the receptionist would not only
have to be the agent of the Defendant but a recognized one at that within
the meaning of order III r 1 &2; and in particular rule 2 thereof which
states; “The recognized agents of parties by whom such… acts may be made
or done are:- (a) Persons holding Powers of Attorney authorizing them to
make… and do such acts on behalf of parties; (b) Persons carrying on trade
or business for and in the names of parties not resident within the local
limits of Jurisdiction of the Court… etc (not relevant to this case)”. That the

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 evidence before Court does not suggest that the service of summons on the
Applicant/Defendant through the receptionist was that by way of an
authorized agent, indeed there is no mention of any Power of Attorney to
that effect. Court further held that where service cannot be effected in the
ordinary way then the Plaintiff or his Counsel should apply for substituted
service rather than go ahead with an ineffective or desperate method of
service to remain within time. That there was no effective service.
 Service on an Advocate with Instructions.
 O.5 r 10, 11 civil procedure rules recognize service on agents. Summons
may be issued to an advocate duly instructed. An advocate by virtue of his
or her representation of a party in court proceedings is entitled to accept
service on behalf of the client. O.3 r 4 civil procedure Act provides for
Service of process on advocate. Any process served on the advocate of any
party or left at the office or ordinary residence of the advocate, whether the
process is for the personal appearance of the party or not, shall be
presumed to be duly communicated and made known to the party whom
the advocate represents, and, unless the court otherwise directs, shall be as
effectual for all purposes as if the process had been given to or served on the
party in person.

 In the case of LakhmanBhimji versus Manor Developments Ltd MA 105

of 2010 (arising from Civil Suit No 35 of 2013) service had been effected
on the applicant’s counsel who was away upcountry. He was called on
phone and later on found the summons in his office. Court held that the
Advocate could not receive service of summons for a fresh suit on behalf of
the Defendant. Firstly, being a fresh matter, he would need instructions of
his client in terms of the contents and merits of the application in order to
represent him effectively. Secondly, and more fundamentally, is the ethical
question of how an Advocate can take up any matter without instructions of
a client. A lawyer has no authority to act for anybody without instructions.
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 That the Advocates (Professional Conduct) Regulations, Statutory
Instrument 267—2, regulation 2 (1) forbids an advocate from acting without
instructions. Court further held that the Advocate could not be instructed
because the defendant/applicant had not yet been served. In terms of the
rules of procedure, there was no effective service on the Applicant. To put it
simply he had not yet received the documents of service from the plaintiff and
he was incapable of giving instructions to any lawyer of his choice.”

 In the case of MulengaVStanbic Bank (U) Ltd (No. 200 of 2013) Court
held that a lawyer could not receive court process on behalf of his client
unless he is a duly authorized agent under the provisions of Order 3 of the
Civil Procedure Rules. A lawyer cannot take action without instructions.
 The duty of the advocate to accept service subsist until conclusion of the
suit. The suit is not concluded until judgment is entered and bill of cost
taxed. This liability further subsist until a notice of change of advocates is
filed in court. The withdrawal must follow the rule on withdraw from cases
set out in the advocates rules-R.3 Advocates professional conduct rules SI
267-2 Beliram V Salkind [1954] 27 KLR 28; There was no notice of
change of advocate on the file. Service was effected on the advocate who had
withdrawn about a year ago. Held that because of O.1 r.1& 2, by entering
an appearance and giving the address, the advocate became liable for
service, which was deemed as effective as if it was served on the defendant
in person. Twiga Chemical Industries Ltd V Viola Bamusedde CACA No.
9/2002

 NB. Service on an agent in charge of immovable property in the suit for

relief for respecting immovable property is good service-O.5 r 12 CPR.

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  Service on Adult Member of Defendant’s Family
 O.5 r 13 civil procedure rules provides that where in any suit the defendant
cannot be found, service may be made on an agent of the defendant
empowered to accept service or on any adult member of the family of the
defendant who is residing with him or her.
 In the case of Wadamba v Mutasa& 2 Ors (HCT-04-CV-CA-0032-2015)
the issue of contention was whether service was effectively done to warrant
court’s findings that the appellant’s application had no merit. According to
O.5 r. 13 of the Civil Procedure Rules, service of summons must be
personal, but where it is not possible to serve the defendant service can be
done on his agent or adult member of his family.  See: Betty Owaraga v.
G.W. Owaraga HCCA No. 60 of 1992. That also in Erukana  Kavumu v.
Metha (1960) EA 305, service was effected on an adult member of the
family when defendant was reportedly in India.  Court ruled that an inquiry
was necessary regarding defendant’s address before its concluded that he
can’t be found.That the law is that where defendant denies having been
served, the onus is on him/her to prove to the satisfaction of court that the
service was ineffective as per Busingye&Ors v. Williams Katotsire (2001-
2005) HCB 108. That the law also recognises the role of the local
authorities to help in having the defendant understand the contents of the
summons per Magela v. Kakungulu (1976) HCB 289. The Process Server
in this case enlisted the support of the LC.I Chairman of the area, and also
ensured that defendant is summoned to the LC’s offices. 

Service on an adult member of the family; If the defendant cannot be found

service on an agent or adult member of the defendant’s family is good
service, see, Omuchilo’s case, See Balenzi Vs Wandera

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 Service upon an adult member of the defendant’s family including a wife;
Bulenzi Vs Wandera:[HCCS No.1047/90 The affidavit of service stated that
service was made onto the Defendant’s wife who had revealed to the process
server that she was not living with the applicant as he was then staying
outside the country and that she would make efforts to send the summons
to him. The defendant contended that service was not in accordance with
O.5, r 14 which requires that service on the person residing with the person
named in the summons. Held: At the time service was purported to be made
on to the wife of the defendant the wife was not residing with the defendant
therefore this was no service as contemplated by O.5 r 14 when the
defendant was not found at his home. Waweru V Kiromo[1969] EA 172 K;
 The question whether service on an adult member of the defendant’s family
residing with him is proper service may be a mixed question of law and fact
and sometimes of law or fact alone; See also Waweru V Kiromo[1969] EA
172(K)
 Need for sufficient inquiry about the defendant’s whereabouts; In the case of
Lalji v Devji [1962] EA 306 a clerk of the plaintiff’s advocate made several
attempts to serve a summons upon the defendant at his house in vain and
served the summons on the defendant’s wife under O.5 r 14, judgment was
challenged on ground that service of summons was bad. Held: That no
proper or sufficient inquiry was made as to the defendant’s whereabouts or
whether the defendant could not really be found. Accordingly service on the
defendant’s wife was not effective.
 NB: That certain steps must be complied with before leaving summons with
another person or affixing it on the premises. Other alternative modes are
not applicable unless there is evidence that the defendant could not be
found; In the case of Waweru V Kiromo [1969] EA 172 K the defendant
applied to set aside service on him summons. The affidavit of the process
server stated that the summons had been left with the defendant’s wife with

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 instructions that she should keep it for her husband as he was not present
at the time. Trevelyan J. held that as the process server made no inquiry
about the defendant’s whereabout it could not be said that he could not be
found, so as to allow service on his wife under O.5 r 12 (now O.5 r 14) CPR.
See also Okoth Alex vs Lwanyaga Edwin HCCS No. 32/2003.
 Service on a member of the defendant’s family must be effected on an adult;
Service upon a minor found at the defendant’s home is bad; Betty
Owaraga V George William Owaraga CA No.60 of 1992.
 Service by Affixing Summons on Defendant’s address
 O.5 r 15 civil procedure rules provides that where the serving officer, after
using all due and reasonable diligence, cannot find the defendant, or any
person on whom service can be made, the serving officer shall affix a copy of
the summons on the outer door or some other conspicuous part of the
house in which the defendant ordinarily resides or carries on business or
personally works for gain, and shall then return the original to the court
from which it was issued with a report endorsed on it or annexed to it
stating that he or she has so affixed the copy, the circumstances in which
he or she did so, and the name and address of the person, if any, by whom
the house was identified and in whose presence the copy was affixed.
 In the case of Eliakanah Omuchilo V Ayub Machiwa [1966] EA 229(K)
The process server accompanied by an agent of the plaintiff failed to find the
defendant at a resident where he ordinarily stayed to serve a summons on
him but the defendant could not be found there. The process server affixed
a copy of the summons on the entrance door to the house and swore a brief
affidavit to that effect. Later judgment was entered exparte for the plaintiff.
Haris J held that before a process server can validly effect service by affixing
the copy of the summons to the premises, he must by virtue of O.5 r 14 first
use all due and reasonable diligence to find the defendant or his agent
empowered to accept service; or any defendant in charge of the suit

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 premises or any adult member of the family residing with him. It is only
when, after using such diligence, none of them can be found that he can
affix a copy of the summons on the premises, particulars of which should be
given. The service upon the defendant was wholly ineffective as the process
server had not used all due and reasonable diligence to find the defendant
and person mentioned in O.5 r 9,11 and 12, accordingly judgment should
be set aside without terms being imposed on the defendant.
 The disclosure of the name and address of the person who identified and
witnessed delivery or tender of the summons to the defendant at the
material time is a statutory duty. In the case of M.B Automobiles V
Kampala Bus Service [1966] EA 480 Court held that the disclosure of the
name and address of the person who identified and witnessed the delivery
or the tendering of the summons to the defendant at the material time was a
statutory duty, and that failure to disclose the name of such person in the
affidavit sworn by the process server rendered the affidavit defective.
 In contrast in the case of Galiwango Fred vs Asuman Kavuma HCMA No.
131/2003 Court held that the process server clearly names both the
plaintiff and the wife of the applicant or at least the woman that he thought
was the wife of the applicant albeit by description who were witnesses to the
actual service which was executed in the compound of the applicant’s home
and in the absence of the plaintiff and that both would fall under the ambit
of Order 5 r 17 of the civil procedure rules. Further held that in any case
the statutory requirement imposed upon a process server under Order 5
rule 17 appear to operate only in cases where the execution of service of
summons has been witnessed by someone. Where no person witnesses the
service the requirement to name the witness does not apply. The words ‘the
person if any’ used in rule 17 of order 5 renders credence to this
interpretation.

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 O.5 r 17 of the civil procedure rules provides for examination of serving
officer where a summons is returned under rule 15.

 Proof of Service
 O.5 r 16 of the civil procedure rules provides that the serving officer shall, in
all cases in which the summons has been served under rule 14 of this
Order, make or annex or cause to be annexed to the original summons an
affidavit of service stating the time when and the manner in which the
summons was served, and the name and address of the person, if any,
identifying the person served and witnessing the delivery or tender of the
summons.
 In the Supreme Court case of Edison Kanyabwera v Pastori Tumwebaze
((Civil Appeal No.6 of 2004)) Oder JSC (R.I.P) held that the
absence from record of an affidavit of service on the
defendant or his counsel was an error or mistake on the face of the record
justifying a review of the trial judge's
refusal to set aside the ex parte judgment against the defendant. That
there was no evidence on record that the defendant was served. The
absence of such affidavit leads inevitably to the conclusion
that the defendant was not properly served with the hearing notice before
the suit was heard in his absence. The provisions of
Order 5, rule 17 of the C.P.R is
mandatory, it was not complied with in theinstant case. What the rule stipu
lates about service of summons, applies equally to service of
hearing notices.
 The person alleging proper service must have and prove in his or her return
of service the following;
i) The time when service was effected on the said person;
ii) The manner in which the summons were served;

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 iii) The name and address of person identifying the person served; The
process server must show that he knows the defendant and if not, the
person identifying the defendant must be mentioned in the affidavit.
In the case of Frank Katusiime V Business Systems Ltd HCSC
717/1993; Katutsi J held; that the disclosure of the name and
address of the person who identified and witnessed delivery or tender
of the summons to the defendant at the material time is a statutory
duty. Failure by the process server to disclose the name of the
receptionist who allegedly pointed out the managing director to him
had the effect of rendering them defective for non-compliance with the
provisions of 0.5 r.16
iv) The exact place where service was effected;
v) Whether or not the person served is known to the person the
summons is meant for if the person is not known to the process
server;
vi) If no personal service, the person should indicate the relationship
between the person served and the person summons were directed at;
vii) The source of information in (vi) must be stated;
viii) That he required his / her signature and response;
 In the case of Wadamba v Mutasa& 2 Ors (HCT-04-CV-CA-0032-2015)
Court held that the Process Server satisfied the basic requirements for
ensuring proper service as listed in the Uganda Civil Justice Bench
Book (1st  Edn 2016) page 25 that effective features of a valid affidavit of
service should contain:

 A statement to the effect that the deponent is a Process Server of the

Court.

 A statement to the effect that the defendant/Respondent was personally

known to him or her at time of effecting service.

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  A statement to the effect that the Defendant not being known to him or
her, another person accompanied the Process Server and pointed out
the person to be served. That the above check list was dully satisfied in
the facts of the application and the Process Server conducted effective
service. 

 In the case of Good Man Agencies Ltd & Nicholas Were vs. Highland
Agriculture Export Ltd HCMA No. 364/2010 Kiryabweire J held that
proof of service of summons is by affidavit of service according to O.5 r
16. That the filing of an affidavit of service as proof of service is
mandatory under the provisions of O.5 r 16 of the civil procedure rules
and is designed to ensure that there was actual service and that it was
carried out properly. That it would be dangerous for court to accept the
fact that there was service of summons when summons were not signed
by the defendant. (See Allen J in Osuna Otwani v Bukenya Salongo
[1976] HCB 62. Court further held that it was inclined to believe that the
applicant was served and that is why a defence was filed in response but
that the only irregularity was no affidavit of service was put on court
record which would defeat the interest of substantive justice and there is
equally no prejudice to the applicant who was found on notice to defend
the suit.
 In the case of Osuna Otwani V Bukenya Ssalongo [1976] HCB 62; O.5
r.17 is mandatory and is designed to ensure that there is actual service
and that it is carried out properly. Hence it would be dangerous for
courts to accept the fact that there was service of summons when
summons were not actually signed by the defendant/appellant.
 As a general practice, the court should require an affidavit of service of
summons in every case before entering judgment in default of
appearance. Kanji Naran V Ramji 21 EACA 20; Edison Kanyabwera
V Pastori Tumwebaze [2001-2005] HCB 98
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 Service of summons , the affidavit must show that a copy of the plaint and
affidavit in support were served with the summons. Lusiano Lippi v Venice
(U) Ltd [1992] IV KALR 7 .

 The rule in order 5 r.16 that an affidavit of service has to be sworn where
the summons have been served equally applies to hearing notices. The
provisions of the rule are mandatory. The absence of an affidavit leads
inevitably to a conclusion that the defendant was not properly served.
Edison Kanyabwera V Pastori Tumwebaze [2001-2005] HCB 98
 Illiteracy in English is no ground for ignoring summons and the person
served cannot rely on that as a ground for not entering appearance; Read
F. Magera & Anor. V Kakungulu [1976] HCB 289
 Day and Hour of service
 O.51 r 9 civil procedure rules provide that service of pleadings, notices,
summonses, other than summonses on plaints, orders, rules and other
proceedings shall normally be effected before the hour of six in the
afternoon, except on Saturdays when it shall normally be effected before the
hour of one in the afternoon. Service effected after the hour of six in the
afternoon on any week day except Saturday shall, for the purpose of
computing any period of time subsequent to the service, be deemed to have
been effected on the following day; service effected after the hour of one in
the afternoon on Saturday shall for the like purpose be deemed to have been
effected on the following Monday.
 Day of service, excludes Sundays and Public holidays; Wasswa Vs Ochola,
SCCA No.05/1990; O. 51 r 9; The applicant moved to set aside an exparte
judgment on grounds of non-service, which was purportedly made on
Sunday. The affidavit of service did not disclose how the process server
knew the person to be served. The plaintiff had exparte remedies. Service on

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 Sunday is void within the meaning of O.51 r 9 CPR as no service can be
effected on Sunday. The affidavit of service should complied with O. 5 r 17
where service is effected under O.5 r 15, the address of the person
identifying the individual to be served should be annexed to the affidavit.
 Substituted Service
 O.5 r 18 of the civil procedure rules provide for substituted service. Where
the court is satisfied that for any reason the summons cannot be served in
the ordinary way, the court shall order the summons to be served by
affixing a copy of it in some conspicuous place in the courthouse, and also
upon some conspicuous part of the house, if any, in which the defendant is
known to have last resided or carried on business or personally worked for
gain, or in such other manner as the court thinks fit. Substituted service
under an order of the court shall be as effectual as if it had been made on
the defendant personally.

 The object of substituted service of summons was considered in Satvinder

Singh vs. Saridner Kaur HCDC No. 2 of 2002 before Justice Rwamizazi-
Kagaba of the High Court of Uganda (See (2002) KALR 616 at 617). Where
the Hon Judge of the High Court held as follows: “I must observe that
substituted service is granted with a purpose or goal to achieve. It is granted
when the court is satisfied that there exists a practical impossibility of actual
service that the method of substituted service asked by the plaintiff/petitioner
is one which will in all reasonable probability, if not certainty, be effective to
bring knowledge of the plaint/petition to the respondent/defendant, (whether
substituted service is granted for the defendant who is within the jurisdiction
of the court or outside its jurisdiction) the primary objective is to ensure that
the defendant should receive knowledge of the existing suit against him or
her and thereby eliminate the violation of his rights which requires that a
person shall not be condemned unheard."

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 In the case of David Ssesanga v Greenland Bank Ltd Misc.App.No.406 Of
2010 Madrama J held that Order 5 rule 18 assumes that the defendant
sought to be served by substituted service is within the jurisdiction of the
court when summons are issued. The intention of the substituted service is
to make the defendant aware of the suit in another way because he or she
cannot be served personally. The defendant can only be served personally
when he or she is within the jurisdiction of the court. Common law
authority is that for substituted service to be valid, the defendant has to be
within jurisdiction of the court when the writ for which order for substituted
service is made. Substituted service under Order 5 rule 18 (1) of the CPR
applies where the defendant cannot be served in the ordinary way. Ordinary
service is personal service or service on the defendant personally.
 Order 5 rules 18 of the Civil Procedure Rules is clear about the
circumstances where substituted service may be ordered. First of all the
court is to be satisfied that summons cannot be served in the ordinary way.
Secondly the affixing of a copy in a conspicuous place in the court house or
on part of the residence or house of the persons sought to be served or
where the person last resided or carried on business or personally worked
for gain or in some other manner as the court thinks fit, presupposes that
the person would be made aware of the summons by affixing of a copy or by
the service in the manner that the court thinks fit. The underlying rationale
for every service is that the defendant would become aware of the matter
contained in the notice or summons. A summons is an order of the court
directing a party to appear in court.
 In the case of Tweheyo Edson vs Barurengyera Kamusiime Hillary HCCA
No. 11/2010 arising from MA No. 98/2009 and CS No. 343/2009 Justice
Bashaija held that the trial court was satisfied that summons could not be
served in the ordinary way and ordered substituted service instead, by
affixing the summons on court notice board and advertising on the Orumuri

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 newspaper. That based on the provisions of order 5 r 18(2) CPR the
appellant’s argument are implausible that he was not duly served because
service by way of substituted service, and that the respondent knew where
the appellant could be found but opted for this particular mode of service.
Court held that there was evidence that the process server could not trace
the appellant at his home, and was informed by his neighbors that the
appellant had left the place without evidence rebutting these facts.
 The advertisement of summons without prior leave of court does not
substitute for personal service of such summons on the defendant but is
mere notice; Read Kearsley (Kenya) Ltd V Anyumba & Othrs [1974] EA
112

Service of court process by substituted service is deemed as good as service

on the person personally Violet K. Mukasa V Erizafani Matovu[1992-93]
HCB 235; However Read; Read; Geoffrey Gatete & Anor. V William
Kyobe [2007] HCB Vol.1 54

That service should be personal or substituted with leave of court otherwise

there will be no proper. UTC Vs Kewaza [1975] EA: see procedure of
applying for substituted service.

Service by Electronic means.

This is another mode of service which courts can allow any party under
‘‘such other manner as the court thinks fit’’. This therefore means a party can
ask court for alternative means of service if physical personal service cannot
be effected such as service by fascmile or service by other means of
electronic communication especially if such parties have ever had such
mode of communication in their dealings or it forms part of their contract
address. Under the companies Act, this mode of service has been recognized
as a way of service on a company under section 274 of the companies Act,

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 2012. Internet lawyers could further consider the return receipt option or
hire verification service so as to prove to court that the email reached and
opened.

Service by Post.

The summon is sent to the defendant at his usual and last known place of
abode by registered mail. In some jurisdictions service is presumed to have
been effected on the 7th day of posting though it can be rebutted. See Order
5 r 7(1)(b) and Order 5 r 19 of the civil procedure rules. See India
Vedeorgram Association Limited vs Patel [1991] 1 WLR 173

 Service on Partners in a partnership.

O.30 r 3 of the civil procedure rules provides for service of partners. Where
persons are sued as partners in the name of their firm, the summons shall be
served—(a) upon any one or more of the partners; (b) at the principal place at
which the partnership business is carried on within Uganda upon any person
having, at the time of service, the control or management of the partnership
business there; or (c) as the court may direct. The service shall be deemed good
service upon the firm so sued, whether all or any of the partners are within or
without Uganda; except that in the case of a partnership which has been
dissolved to the knowledge of the plaintiff before the institution of the suit, the
summons shall be served upon every person in Uganda whom it is sought to
make liable. O.30 r 6 provides for appearance by partners. Where persons are
sued as partners in the name of their firm, they shall appear individually in
their own names, but all subsequent proceedings shall, nevertheless, continue
in the name of the firm. O.30 r 7 provides that where a summons is served in
the manner provided by rule 3 of this Order upon a person having the control
or management of the partnership business, no appearance by him or her shall
be necessary unless he or she is a partner of the firm sued.

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 The case of Geoffrey Gatete and Angela Maria Nakigonya versus William
Kyobe Supreme Court Civil Appeal No. 7 of 2005 is instructive. The
judgment of the court was delivered by Mulenga JSC with concurrence of
the rest of the panel of Supreme Court Judges. Court held that rules 3, 6
and 7 of Order 30 relate to service of, and appearance to summons. From
reading the three rules together, it is evident that “deeming service” in any
of the modes provided by r.3 to be “good service upon the firm” is premised
on an assumption that the person served will ensure that all the partners
sued under the firm name ultimately receive the summons. Hence the
mandatory requirements under rr.6 and 7, that the partners, and only the
partners, have to enter appearance in their individual names. This is so
because a suit against a partnership firm is in essence a suit against the
individual partners jointly and severally. Obviously, the partners cannot
comply with the requirement to enter appearance where they are not made
aware of the summons and the suit. That O.30 r.3 does not constitute a
partnership firm into a corporate legal person nor does it vest in the person
served, power of attorney to act for all the partners of the firm sued. The
rule provides the alternative modes of service only for expediency. It must
not be construed as compromising the right of any partner to know of a suit
instituted against him or her under the firm name and to have opportunity
to decide whether or not to enter appearance and defend; or in the case of a
summary suit, to decide whether or not to apply for leave to appear and
defend. At page 8 second paragraph to page 9 quote: “It is apparent that in
concluding that assumed service on MatsikoKasiimwe was effective service,
the courts below took the expression “deemed good service” referred to in
order 30 rule 3 and the expression “effective service” referred to in order 36
rule 11 to mean the same thing and actually use them interchangeably. In
my view, the two expressions are significantly different. The Oxford advanced
learner’s dictionary defines the word “effective” to mean “having the desired
effect; producing the intended result”. In that context, effective service of
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 summons means service of summons that produces the desired or intended
result. Conversely, in ineffective service of summons means service that
does not produce such result. There can be no doubt that the desired and
intended result of serving summons on the defendant in the civil suit is to
make the defendant aware of the suit brought against him so that he has the
opportunity to respond to it by either defending the suit or admitting liability
and submitting to judgment. The surest mode of achieving that result is
serving the defendant in person. Rules of procedure, however, provide for
such diverse modes for serving summons that the possibility of service failing
to produce the intended result cannot be ruled out in every case.
For example, in appropriate circumstances service may be lawfully made
on the defendant’s agent. If the agent omits to make the defendant aware
of the summons, the intended result cannot be achieved. Similarly, the court
may order substituted service by way of publishing the summons in the
press. While the publication will constitute lawful service, it will not produce
the desired result if he does not come to the defendants notice. In my
considered view, these examples of service envisaged in order 36 rule 11 as
“service (that) was not effective.” Although the service on the agent and
substituted service would be “deemed good service” on the defendant
entitling the plaintiff to a decree under order 36 rule 3, if it isshown that the
service did not lead to the defendant becoming aware of the summons, the
service is “not effective” within the meaning of order 36 rule 11.
(See PirbhaiLalji vs. Hassanali (1962) EA 306).
The word “deemed” is commonly used in legislation to create legal or
statutory fiction. It is used for the purpose of assuming the existence of the
fact that in reality does not exist. In St Aubyn (LM) vs. Attorney General
(1951) 2 All England reports 473, at page 498 Lord Radcliffe describes the
various purposes for which the word is used where, he says – “the word
“deemed” is used a great deal in modern legislation. Sometimes it is used to
impose for the purpose of the statute an artificial construction of the word or
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 phrase that would not otherwise prevail. Sometimes it is used to put beyond
doubt a particular construction that might otherwise be uncertain. Sometimes
it is used to give a comprehensive description that includes what is of use,
what is and certain and what is, in the ordinary sense, impossible.” In my
view, the expression “service that is deemed to be good service” is so broad
that it includes service that would not produce the intended result, which
therefore is not effective.”
 Service on a Company or Corporation
 Section 274 of the Companies Act 2012 provides for Service of documents. A
document may be served on a company by personally serving it on an officer
of the company, by sending it by registered post to the registered postal
address of the company in Uganda or by sending an email to the known
electronic address or by leaving it at the registered office of the company.
 O.29 r 2 of the civil procedure rules provides for service on corporation.
That subject to any statutory provision regulating service of process, where
the suit is against a corporation, the summons may be served— (a) on the
secretary, or on any director or other principal officer of the corporation; or
(b) by leaving it or sending it by post addressed to the corporation at the
registered office, or if there is no registered office, then at the place where
the corporation carries on business.
 James Musajjalumbwa V Bitumastic Ltd [1982] HCB 103; Service upon
company secretary, director or principal officer or by leaving the summons
at the registered office or place of business. Read also J.F Ijjala V
Corporation Energo Projekt [1988-90] HCB 157 For the principal that if
summons are left at the principal place of business or head office of the
defendant, that is effective service.
 Augustine Okirol Vs Gerald Lwasa and PMB: Service was effected on the
secretary of the general manager of the company reliance being placed on
O.29 r 2 and the defendants contended that service was bad. Held: That the

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 secretary of the general manager was not within a class of persons intended
by the rule and could not fall within the ambit of the principal officer of the
corporation hence the service was not effected.

 In the case of Kisubi High School Ltd vs. NSSF HCMA No. 505/2012 the
affidavit of service read that the deputy head teacher had been served with
the summons. The narrow issue was whether service on the deputy head
teacher of the applicant school amounted to leaving the document at the
registered office of the company. Alternatively whether the school is the
place where the corporation carries business. Madrama J held that there is
no difference in quality between handing over summons to the head teacher
and also leaving it at the principal place of business or registered office of
corporation. Further held that service on the deputy headmaster was as
good as leaving the documents at the registered office of the company.
 In the case of National Forestry Authority vs Kasese Cobalt co. Ltd
HCMA No. 110/2012 the issue was whether service on the liaison officer
was effective service. Madrama J held that it is permissible to serve
summons on the secretary, any director or other principal officer of the
corporation. That the expression principal officer has to be determined on
the basis of the facts as to whether the person or officer is the principal
officer in the circumstances of the case.
 In the case of Kampala City Council vs. Apollo Hotel Corporation
[1985] HCB at page 77, it was argued that the applicant had not been
served with summons and was not aware of any pending suit and therefore
could not enter appearance. In an application to set aside the decree Odoki
J as by then held that summons have to be served on the secretary to the
board, or the chairman of the board or any director or other principal officer
in that category of responsibility. That such process must be served on
senior officers of the corporation responsible for the management of the

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 corporation and in a position to take legal action on behalf of the
corporation. In that case the person served as a manager of the corporation
was not a principal officer of the corporation competent to accept service of
the process.
 Service on Corporations: NB: R 14, 16 and 17 do not apply to the
corporations and service on corporations can not be effected in accordance
with those rules [Nzioki S/o Mutumenta Vs Akamba Handcraft
industries Ltd] O.29 r 2: Service on corporations is made upon the
secretary, directors, principal officer of the company (like the general
manager) on whom summons may be left or sent by post to the
corporation’s registered office. If no registered office, then to their premises.
 Service on the Attorney General
 Article 250(2) of the constitution provides that civil proceedings by or
against the Government shall be instituted by or against the Attorney
General; and all documents required to be served on the Government for the
purpose of or in connection with those proceedings shall be served on the
Attorney General.
 Sec 11 of the Government Proceedings Act provides that all documents
required to be served on the Government for the purpose of or in connection
with any civil proceedings by or against the Government shall be served on
the Attorney General.
 R. 5 of the Government proceedings (Civil procedure) rules provide for
Service of documents. Service of a document on the Attorney General for the
purpose of or in connection with civil proceedings by or against the
Government shall be effected by delivering or sending the document to be
served and a duplicate or copy of the document to the office of the Attorney
General, and shall be deemed not be complete until the Attorney General or
another officer of the Government entitled to practice as an advocate in
connection with the duties of his or her office has endorsed an

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 acknowledgement of service on the document to be served. In this rule,
“document” includes a notice, pleading, order, summons, warrant and any
written proceeding or communication.
 Under R. 8 of the Government proceedings (Civil procedure) rules in the
case of civil proceedings against the Government—(a) the provisions of rule
1(1)(b) of Order V of the principal Rules and the provisions of rules 3, 4, 20,
21, 22, 23, 24, 25, 26 and 27 of that Order shall not apply; and (b) where a
summons is issued under rule 1(1)(a) of that Order the time limited by the
summons for entry of appearance shall be not less than thirty days.
 Service out of Jurisdiction
 O5. r 22 of the civil procedure rules provides that Service out of the
jurisdiction may be allowed by the court wherever (a) the whole subject
matter of the suit is immovable property situated within the jurisdiction,
(with or without rents and profits); (b) any act, deed, will, contract,
obligation or liability affecting immovable property situate within the
jurisdiction is sought to be construed, rectified, set aside or enforced in the
suit;(c) any relief is sought against any person domiciled or ordinarily
resident within the jurisdiction;(d) the suit is for the administration of the
personal estate of any deceased person, who at the time of his or her death
was domiciled within the jurisdiction, or for the execution (as to property
situate within the jurisdiction) of the trusts of any written instrument, of
which the person to be served is a trustee, which ought to be executed
according to the law of Uganda; (e) the suit is founded on any breach or
alleged breach within the jurisdiction of any contract wherever made which,
according to the terms of the contract, ought to be performed within the
jurisdiction; (f) any injunction is sought as to anything to be done within the
jurisdiction, or any nuisance within the jurisdiction is sought to be
prevented or removed, whether damages are or are not also sought in
respect thereof; (g) any person out of the jurisdiction is a necessary or

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 proper party to a suit properly brought against some other person duly
served within the jurisdiction; or (h) the suit is founded on a tort committed
within the jurisdiction.
 Order 5 rule 24 provides that applications should be supported by evidence.
Every application for leave to serve the summons or notice on a defendant
out of the jurisdiction shall be supported by affidavit or other evidence,
stating that in the belief of the deponent the plaintiff has a good cause of
action, and showing in what place or country the defendant is or probably
may be found, and whether the defendant is a Commonwealth citizen or
British protected person or not.
 Order 5 rules 26 provides where leave to serve a summons out of the
jurisdiction has been granted under rule 22 of this Order and the defendant
is a Commonwealth citizen or British protected person or resides in a
Commonwealth country out of Uganda, the summons shall be served in
such manner as the court may order.
 Order 5 rules 27 provides that where the defendant is neither a
Commonwealth citizen nor a British protected person and is not in a
Commonwealth country, notice of the summons and not the summons itself
is to be served upon him or her.
 Order 5 r 28 of the civil procedure rules provides for the procedure to be
adopted where leave is given to serve notice of summons in any foreign
country (not being common wealth country) to which rule 28 of this Order
applies may by order of the Chief justice from time to time be applied. Order
2 of the Civil Procedure (Service of Notice of Summons in Foreign Countries)
Order provides that rule 28 of Order 5 of the civil procedure rules shall
apply to the foreign countries specified in the schedule to this Order. These
are: Democratic Republic of Congo, Republic of Burundi, Republic of
Rwanda, and Republic of the Sudan.

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  In the case of David Ssesanga v Greenland Bank Ltd
HCMisc.App.No.406 Of 2010 Madrama J (as by then) held that Order
5 rule 18 assumes that the defendant sought to be served by substituted
service is within the jurisdiction of the court when summons are
issued. The intention of the substituted service is to make the defendant
aware of the suit in another way because he or she cannot be
served personally. The defendant can only be served personally when he
or she is within the jurisdiction of the court. Common law authority is
that for substituted service to be valid, the defendant has to be within
jurisdiction of the court when the writ for which order for substituted
service is made. Further held that service outside jurisdiction is under
order 5 rule 22 which gives instances where the court may make an
order for service outside jurisdiction. This includes sub rule (c) which
provides that where the relief is sought against any person domiciled or
ordinarily resident within the jurisdiction. That applicant qualifies to be
called a person domiciled in Uganda at the time of the suit. That the
Rules 26 – 30 deal with the procedure applicable. Where the Court allows
service to be made outside jurisdiction, the relevant procedures have to
be complied with. These include: An application to be made to court
supported by affidavit evidence under order 5 rule 24; the Court making
the order for service outside jurisdiction will indicate the period within
which a defence will be filed depending on the geographical location and
accessibility of the foreign country where the defendant resides. (See
order 5 rule 25); the Court will order the manner of service (see order 5
rule 26) and the procedure for service in a foreign country is provided for
under rule 28.

 In the case of Abidi & 3 Ors v Tropical Africa Bank HCMA No. 360 Of
2006 the plaintiff was given leave to advertise the notice of the next
hearing of the suit t in the New Vision and the East African newspapers
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 and further to be served on an adult member of the defendant’s family in
Uganda. At the time of the order of the court to serve the defendant
through the provisions for substituted service, the defendant was a
resident of the United Arab Emirates. Court held that under common law
rules, substituted service can only be valid if the defendant is within the
local limits of the court's jurisdiction when the order for substituted
service is made. That in the case of Myerson v Martin [1979] 3 All ER
667 the Court of Appeal dealt with the question of substituted service on
a person outside the local limits of the court’s jurisdiction. Lord Denning
held at page 670 that substituted service is only valid where the
defendant is resident within the local limits of the Court’s jurisdiction
and not outside jurisdiction. Court further held that Order 5 makes a
clear distinction between substituted service under Order 5 rule 18 of
the Civil Procedure Rules and service outside jurisdiction under rule 22
thereof. This is read in conjunction with Order 5 rule 29 of the CPR
which provides that the court may direct that any summons, order or
notice shall be served on any party or person in a foreign country and
the procedure prescribed by rule 28 of the order with reference to service
of notice of the summons shall apply to the service of any summons,
order or notice so directed to be served. That the applicant was served as
if he was resident within the local limits of the court’s jurisdiction
whereas not. That rationale for service outside jurisdiction in the
applicant's case would be to make the applicant aware of the hearing of
the suit. That service outside jurisdiction is clearly governed by Order 5
rules 22 and 29 of the Civil Procedure Rules. That in the case of Karachi
Gas Co Ltd v H Issaq [1965] 1 EA 42 the Court of Appeal of East Africa
sitting at Nairobi per Newbold Ag V-P held at page 53 that service of
summons outside jurisdiction are made in the circumstances defined by
(Order 5 rule 22 of the Uganda CPR):  “As regards the first of these issues
the defendant was out of the jurisdiction and was neither domiciled nor
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 ordinarily resident in Kenya. In such a case the courts of Kenya will not
assume jurisdiction in relation to any matter arising out of contract
unless the circumstances fall within the provisions of O. V, r. 21 of the
Civil Procedure (Revised) Rules, 1948 (K). This rule details the
circumstances in which service of a summons or a notice of summons may
be allowed out of the jurisdiction in order to give effect to a jurisdiction
which the courts have assumed.” That given the analogous application of
the rules to hearing notices, the circumstances set out under Order 5
rule 22 thereof. Rule 22 (g) includes in the circumstances the person is
out of jurisdiction and is a necessary or proper party to the suit properly
brought against the person duly served within the jurisdiction. That by
analogy a person resident outside jurisdiction has to be served outside
jurisdiction for the service to be effective.

 In the case of Abudlrahmna Omar t/a Bahan Commercial Agencies V

Content Tobacco (U) Ltd & Anor HC Misc. Application No 298 of
2009 was an application for Summons to file a defence in a foreign
country to issue. The affidavit in support was sworn by the Applicant
shows that the 2nd Respondent, a limited liability company operates in
Nairobi, and Mombasa Kenya. Kenya is a Commonwealth Country and
the Applicant deponed that service cannot be effected normally in
Uganda. Court considered the affidavit in support of the application and
the provisions of Order 5 rules 22 and 26 CPR for requirements for the
under issue and held that the Applicant has satisfied the requirements
for summons to file a defence to issue outside jurisdiction. Court ordered
that summons to file a defence be issued against M/s Mastermind
Tobacco (K) Ltd, the second defendant in Civil Suit No. 192 of 2009 to be
served on it in Kenya.
 Read O.5 r 22-28 civil procedure rules. Also Civil Procedure (Service of
Notice of Summons in Foreign Countries) Order.
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  Contesting Service of Summons
 The law is that where defendant denies having been served, the onus is
on him/her to prove to the satisfaction of court that the service was
ineffective as per Busingye&Ors v. Williams Katotsire (2001-2005)
HCB 108.
 Effect of Failure to Serve Summons
 Failure to serve the process where service is no doubt required is a
failure which goes to the root of any conception of proper procedure in
litigation. In the case of BamanyeFazil v Nankunda Rose HC-CV-CA-
0007-2009 Court held that it is obligatory on the part of the defendant
to serve a copy of his Written Statement of Defence on the plaintiff,
particularly so where the Written Statement of Defence contains a
counter-claim which legally is a suit in its own right. That failure to serve
the process where service is no doubt required is a failure which goes to
the root of any conception of proper procedure in litigation. See:
Nicholas Roussos vs G. H. Virani & Anor HCCS No. 360 of 1982
where court observed “Apart from proper ex parte proceedings the
idea that an order can validly be made against a man who had no
notification of any intention to apply for it is one which has never
been adopted in this country. To treat that an order of this kind
made in this case should be treated as a mere irregularity, and not
something which is affected by a fundamental vice is an argument
which in my opinion cannot be sustained.” Court further held that
the ex parte judgment entered against the appellant was affected by a
fundamental vice in that he was never served with a copy of the Written
Statement of Defense and the counter – claim. The service the
defendant/respondent purported to effect, that is, of leaving a copy in
the court file for the appellant’s collection on his own was wrong in law
and was no service at all. The resultant ex parte judgment was therefore

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 a nullity. That Lord Greene M. R. considered the authorities on this print
in Greig vs Kanseem [1943] 1 ALL ER 108 and concluded as follows at
113: “Those cases appear to me to establish that an order which
can properly be described as a nullity is something which the
person affected by it is entitled ex-debitojustitiae to have it set
aside. So far as the procedure for having it set aside is concerned,
it seems to me that the court in its inherent jurisdiction can set
aside its own order; and that an appeal from the order is not
necessary.” Having held that the improper mode of service adopted by
the respondent/defendant rendered the resultant ex parte judgment a
nullity, court held that the appellant is entitled ex debitojustitiae to have
it set aside.
 Pre-Entry Exam 2012/2013
 Qn.42. The plaintiff sued the defendant for trespass, seeking an eviction
order. The defendant did not file a defence. There is an affidavit of service
on record. What step should the plaintiff take?
 Pre-Entry Exam 2015/2016
 Qn.48. Explain the purpose of a hearing notice?
 Pre-Entry Exam 2017/2018
 Qn.5. Who is a process server?

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TOPIC VIII

APPEARANCE OF PARTIES & AGENTS.

Section 20 CPA provides that where a suit has been duly instituted, the
defendant shall be served in the manner prescribed to enter an appearance
and answer the claim. (O.5 r 3) See different modes of responding to summons;
vide; filing a defense, an application for leave to appear and defend, an affidavit
in reply all depending on the type of summons.

O.3 r 1 civil procedure rules provides for appearances, etc. may be in person,
by recognized agent or advocate. Any application to or appearance or act in any
court required or authorized by the law to be made or done by a party in such
court may, except where otherwise expressly provided by any law for the time
being in force, be made or done by the party in person, or by his or her
recognized agent, or by an advocate duly appointed to act on his or her behalf;
except that any such appearance shall, if the court so directs, be made by the
party in person.

 What constitutes Appearance

Appearance is both legal and physical depending on the stage of the

proceedings.

a) Legal Appearance

O.9 r 1 of the civil procedure rules provides for the mode of filing a defense. A
defendant shall file the defense by delivering to the proper officer a defense in
writing.

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In the case of Opa Pharmacy Vs Howse SMC George(1972) ULR 115 : Held:
The appearance under O.9 r 1 connotes legal rather than physical appearance.
That appearance under O.9 r 1 meant simply the delivery of a written word and
memo of appearance stating that the defendant would appear in person.
[Position then, current position is to file a WSD rather than a
memorandum of appearance.]

 Manner of Appearance
 Order 8 r 1: A defendant may, if so required by court at a time of the issued
of summons or any time thereafter as prescribed by court file a defense
within 15 days unless otherwise ordered by court. [30 days for Attorney
General. Read Rule 6 of the Government Proceedings Civil Procedure
Rules]
 O.9 r1: This is done by delivery of a written statement of defence dated on
the day it is filed, stating the name of the defendant if he is to appear in
person or his advocate and the address of service. The defendant shall file
and sent it, showing the date and return it to the person filing it and the
defence shall be served onto the plaintiff. See copy of the defence.
 In the case of Mark Graves vs Balton (u) Ltd HCMA 158/2008 an
application under O.9 r 3 CPR disputing jurisdiction of court. Counsel for
respondent raised a preliminary point of law that the applicant had not filed
a defense. That to bring an application under O.9 r 3 CPR the applicant
must first file a defense and then file the application. The issue was whether
an application under the above rule can be filed by a defendant without
filing a Written Statement of defense. Court held that the filing of a defense
prior to filing an application under rule 3, is optional. Where a defense is
filed, such filing will not be a waiver to filing of the application (rule 2).
Further the filing of defense where the defendant has filed an application
under rule 3 is not treated as submission to the jurisdiction unless court
makes no order on the application or dismisses it (rule5). And where the
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 defendant who filed a defense, does not make the application such defence
will be treated as submission by the defendant to jurisdiction of the court in
the proceedings unless the defense is withdrawn with leave of court under
rule 1 (3) of Order 25 CPR. That the second point of objection was that the
application was after lapse of the time for service of a defense. Court held
that under o.8 r 1(2) and O.8 r 19 filing of a defense is completed by
delivering a defense to court for placing the court record and delivering a
duplicate thereof at the address for service of the plaintiff (O.8 r 19). That
this was supposed to be done within 15 days from the date of publication of
the advertisement (O.8 r 1(2) CPR).
 Extension of time for entering an Appearance.;
 Extension of time may be when parties have consented or where the party
has applied to court.[see s.96 CPA] Godfrey Magezi & Brain Mbazira V
Sudhir Rupaleria SCCAPP 10/2002. Applicant sought extension of time
within which to file an appeal out of time to appeal against the decision of
the Court of appeal. Held; that court has jurisdiction to extend for the doing
of an act so authorized or required. The omission, mistake or inadvertence
of counsel ought to be visited on the litigant leading to striking out his
appeal thereby denying him justice. Even if the legal advisor’s actions have
been negligent, an extension of time has been accepted. Read; Robert Opio
& Anor V Edward Kabugo Sentengo HCMA No.166-2002 for what
amounts to sufficient cause to warrant extension of time to file a
defence
In the case of Stop & See (U) Ltd vs. Tropical African Bank HCMA No.
333/2010 held that once a party is out of time, he or she needs to seek
leave of court to file the defense or affidavit in reply outside the prescribed
time.
 That the legal effect of extending time to file an appeal out of time when the
appeal had already been filed(out of time) is to validate that appeal or to

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 excuse the late filing of that appeal. See also Credit Finance Co Ltd V
Makerere Properties SCC Appl No.1 of 2001.
 Effect of Failure to enter appearance:

If the defendant without sufficient cause fails to appear in court, the

plaintiff will be entitled to proceed exparte by obtaining leave to prove his
case or judgment may be entered in default, or interlocutory judgment may
be entered depending on the nature of the claim.

The Defendant will have excluded himself from proceedings unless he

applies to show cause as to why he did not file the defence within the time
allowed. Mark Graves V Balton (U) HCMA No.158 of 2008; Bukenya Vs
Attorney General (Supra). Twiga Chemical Industries Ltd V Viola
Bamusedde CACA No. 9/2002; Silas Bitaitana V Emmanuel Kananura
CACA No.47/1976; AG & UCB V Westmont Land (Asia) Bhd & Othrs.
[1997-2000] UCLR 191

Generally, a defendant who fails to file a defence within the time limited by
law is deemed to have excluded themselves from the proceedings in court.
Sebunya Vs Attorney General [The Plaintiff sued the Attorney general who
failed to file a WSD within the statutory period and was nor represented at
the hearing. A state attorney appeared for the defendant. Held: A defendant
who files no defence could not be heard. The state attorney as in the instant
case even if he had appeared in time would have had no locus standi and
could not be heard. AG & UCB V Westmont Land (Asia) Bhd & Others
[1997-2001] UCLR 191

b) Physical appearance.

Court can make an order for that a plaintiff or defendant appears in person.

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 O.3 r 1 civil procedure rules provides that if the court so directs,
appearance shall be made by the party in person.

O.5 r 3 of the civil procedure rules provides that where the court sees
reason to require the personal appearance of the defendant, the summons
shall order him or her to appear in person in court on the day specified in
the summons. Where the court sees reason to require the personal
appearance of the plaintiff on the same day, it shall make an order for that
appearance.

 Appearance by a party.

 O.3 r 1 civil procedure rules appearance may be made or done by the party
in person. Appearance means being physically in court and notifying court
of a party’s presence. In the case of Kyobe Ssenyange Vs Naks Ltd (1980)
HCB 31: was an application to set aside a decree granted exparte on ground
that neither applicant nor counsel appeared. Applicant was physically in
court as was his advocate when the application was called for hearing
though during the hearing he did not raise up his hand as requested; Held:
That mere presence of the party alone does not amount to presence as the
party must indicate to court that he is appearing for a matter.

c) Appearance by a party’s Advocate.

 O.3 r 1 civil procedure rules appearance may be made or done by an

advocate duly appointed to act on a party’s behalf.
 Regulation 2 (1) of the Advocates (Professional Conduct) Regulations S.1
267-2 Provides:

‘‘No advocate shall act for any person unless he or she has
received instructions from that person or his or her duly
authorized agent.’’

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  Regulation 3 (1) of the Advocates (Professional Conduct) Regulations S.1
267-2 Provides:

‘‘An advocate may withdraw from the conduct of a case on behalf of a

client where—

(a) the client withdraws instructions from the advocate;

(b) the client instructs the advocate to take any action that may
involve the advocate in proceedings for professional misconduct or
require him or her to act contrary to his or her advice to the client;
(c) the advocate is duly permitted by the court to withdraw;
(d) the client disregards an agreement or obligation as to the payment
of the advocate’s fees and disbursements.’’

In the case of Kabale Housing Estates Tenants Association vs. Kabale

Municipal Local Council Civil Application No. 15 of 2013 Kitumba JSC
held that a suit brought without instructions is incompetent. See Buikwe
Coffee Ltd (1962) EA 327. That counsel must appear in court with full
instruction and authority from his client. Failure to do so, an advocate will
be acting on his own and will not be entitled to any costs.

In the case of Attorney General & Peter Nyombi vs. Uganda Law Society
(Misc. Cause No. 321 of 2013) the issue was whether the Attorney General
can retain and instruct Kampala Associated Advocates, a private legal firm
to represent it and perform legal services without complying with the Public
Procurement Laws and Regulations?. Court held that by appointing
Kampala Associated Advocates as counsel for the first applicant, the effect is
that they were vested with the authority of duly appointed advocates for the
Attorney General with full instructions to act on behalf and for the Attorney
General and entitling them to remuneration by the Attorney General which
comes from public coffers or the consolidated fund. In case the respondent

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 lost the case, then the latter would be liable for the costs on a party to party
basis. Consequently that it was irregular for the learned Attorney General to
have retained the Kampala Associated Advocates as lawyers to provide
professional services to the Attorney General without following the PPDA Act
and Regulations as amended.

In the case of Sekyaya Vs Sebuguli: held that as the plaintiff’s counsel is

present and appear on the plaintiff’s behalf, then the plaintiff pursuant to
O.3 r 1 will be said to be legally in court.

Harriet Kizito v Ggoloba Godfrey CA No. 65/2005; Handoni Daniel V

Yolamu Egondi CACA No.67 of 2003

Kawooya Vs Naava:[1975] HCB 314 This was an appeal against a decision

of a chief magistrate dismissing the appellant’s application under O.9 r 24
to set aside an exparte decree passed against him. Appellant deposed that
he did appear at the hearing but due to a sudden change of venue for the
hearing, thus his counsel went to a wrong court. Counsel had been arrested
the previous day thus was unable to appear. The Magistrate had dismissed
the grounds as insufficient. Held: That a decree entered exparte will be set
aside if the appellant was prevented by sufficient cause from appearing
when the suit was called for hearing [O.9 r 24]. Since under O.3 r 1 any
person may appear by person or by his advocate, appearance for purposes
of O.9 r 24 means appearance of his advocate. That the appellant had
shown sufficient cause within O.9 r 24 for his non appearance at the
hearing and the exparte decree would be set aside.

 A party who empowers an Advocate for him or her is not allowed to plead
ignorance of the agent /advocate’s dealings.

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 In the case of Twiga Chemicals Industries Ltd vs. Viola Bamusedde, CA
9/2002 held that a man or woman empowers an agent to act for him or her
is not allowed to plead ignorance of his or her agent’s dealings.

In the case of Bikwere & Anor vs Namaka HCMA No. 297/2014 held that
the decision in Twiga Chemicals Industries Ltd vs. Viola Bamusedde, CA
9/2002 is instructive that a man or woman who empowers an agent
(advocate) for him or her is not allowed to plead ignorance of the agent’s
dealings. That the rule in our civil procedure rules is re-emphasized under
the provisions of O.3 r 1 of the civil procedure rules. That in this case a
person who appeared in court on behalf of the applicants was fully
instructed Advocate. He had authority to act on their behalf as he did. There
was no contrary court order requiring the parties to appear in person and
there is no evidence of collusion, or fraud.

O.3 r 4 civil procedure rules appearance allows Service of process on

advocate. Any process served on the advocate of any party or left at the
office or ordinary residence of the advocate, whether the process is for the
personal appearance of the party or not, shall be presumed to be duly
communicated and made known to the party whom the advocate
represents, and, unless the court otherwise directs, shall be as effectual for
all purposes as if the process had been given to or served on the party in
person. In the case of MulengaVStanbic Bank (U) Ltd (No. 200 of 2013)
Court held that a lawyer could not receive court process on behalf of his
client unless he is a duly authorized agent under the provisions of Order 3
of the Civil Procedure Rules. A lawyer cannot take action without
instructions.

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 d) Appearance by a party’s Authorized agent.

 O.3 r 1 civil procedure rules appearance may be made or done by

recognized agent.
 O.3 r 2 civil procedure rules provides for recognized agents. The recognised
agents of parties by whom such appearances, applications and acts may be
made or done are— (a) persons holding powers of attorney authorising them
to make such appearances and applications and do such acts on behalf of
parties; and (b) persons carrying on trade or business for and in the names
of parties not resident within the local limits of the jurisdiction of the court
within which limits the appearance, application or act is made or done, in
matters connected with such trade or business only, where no other agent
is expressly authorised to make and do such appearances, applications and
acts.
In the case of Jeshang Popat Shah v Meera Investments Ltd HCMA No.
747 of 2002 Court held that O.3 r 2 of the civil Procedure rules gives the
list of persons who are recognized agents to cases. That they are (a) persons
holding powers of attorney authorizing them to do certain acts on behalf of
parties, (b) persons carrying on trade or business on behalf of foreigners,
within Uganda. That O.3 r 2 CPR does not require that anyone to act as
agent of any party should or should not be of any description, status,
occupation or ceiling etc. The rule as it stands would be satisfied by any
adult who is of sound mind. That adult may be an industrialist, a fanner, a
doctor, an accountant, a lawyer, a banker etc. That agent could even be
someone who is employed. That if the agent happens to be a solicitor or
barrister outside Uganda and has not obtained a special practicing permit
he or she cannot have right of audience in Uganda and cannot legally
represent any party. That the defendant resides in the United Kingdom and
the plaintiff’s directors are well aware of the fact. That there is nothing in
our law which obliges him to appoint a local agent, from the wording of O.3
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 r 2 CPR. That it is well known that a party to a case in Uganda may appear
in person or through an agent given authority by a power of attorney.
 O.3 r 3 civil procedure rules appearance allows Service of process on
recognised agent. Processes served on the recognised agent of a party
shall be as effectual as if they had been served on the party in person,
unless the court otherwise directs. The provisions for the service of
process on a party to a suit shall apply to the service of process on his or
her recognised agent.

 In the case of Jas Projects Ltd v Emiru Angose HCT - CS - 280 – 2005
Court held that in order to have effected service upon the receptionist,
the receptionist would not only have to be the agent of the Defendant but
a recognized one within the meaning of order 3 r 1 &2; and in particular
rule 2 thereof which states; “The recognized agents of parties by whom
such… acts may be made or done are:- (a) Persons holding Powers of
Attorney authorizing them to make… and do such acts on behalf of
parties; (b) Persons carrying on trade or business for and in the names of
parties not resident within the local limits of Jurisdiction of the Court…
etc (not relevant to this case)”. That the evidence before Court does not
suggest that the service of summons on the Applicant/Defendant
through the receptionist was that by way of an authorized agent, indeed
there is no mention of any Power of Attorney to that effect. Court further
held that where service cannot be effected in the ordinary way then the
Plaintiff or his Counsel should apply for substituted service rather than
go ahead with an ineffective or desperate method of service to remain
within time. That there was no effective service.
 In the case of Jessy Technical Services Ltd & Anor v Ajay Industrial
Corporation Ltd & Anor (Misc. Appl. NO. 0617 OF 2012 and Misc.
Appli. No. 616 of 2012) Court held that where it is not practicable to

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 effect service on the defendant personally, it may be made on an agent
empowered to accept service. The words “empowered to accept service” is
read in the context of recognized agents as prescribed by order 3 of the
Civil Procedure Rules. An empowered agent is an agent recognized under
order 3 of the Civil Procedure Rules. Court further held that the
receptionist was not proved to be an empowered agent of the second
applicant/defendant by the affidavit of service of the process server. It
was not proved that the 2 nd Applicant empowered the receptionist at the
offices of the first Applicant to accept service on his behalf. Acceptance of
service in the context of order 3 rule 1 is an "act" which is required in
any court to be done by a party. This is because service has to be made
on the defendant personally and therefore acknowledgement of service is
an act to be done by a party i.e. the defendant. Consequently the
definition of recognized agents by order 3 rule 2 of the Civil Procedure
Rules is applicable. In that rule agents are defined as persons holding
powers of attorney authorizing them to make appearances and
applications and do such acts on behalf of the parties. Secondly it means
persons carrying on trade or business for and in the names of the parties
not resident within the local limits of the jurisdiction of the court. Finally
order 3 rule 5 of the Civil Procedure Rules provides that besides the
recognized agents described in rule 2 of the order, any person residing
within the jurisdiction of the court may be appointed an agent to accept
service of process. Order 3 rule 5 (2) specifically provides that the agents
so appointed shall be either special or general and the appointment shall
be by an instrument in writing signed by the principal and a certified
copy of which shall be filed in court. That the receptionist described by
the process server does not fit the description of an agent authorized or
empowered to accept service by the second respondent. Court finally held
that there was no personal service on the second applicant/defendant as
prescribed by the rules. In practical terms therefore the registrar was
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 right to advise service of summons by substituted service as far as the
second applicant is concerned.

TOPIC IX

PARTIES TO CIVIL ACTION:

 Procedural law governs the mode of proceeding and machinery by which the
remedy is enforced while the substantive law defines the righty being
enforced. The determination whether a person is capable of suing or being
sued is procedural and governed by the law of the forum, such as whether
an action may be brought in the name of such a person.
 On commencing a proceeding, a person becomes a plaintiff in an action or
an applicant on an application / cause or petition on a petition. On filing an
action and being served with summons or other notice in an action, a
person becomes a defendant without the necessity of the defence being filed
or affidavit in reply or a respondent.
 In the law of pleadings, it is necessary to establish the party to sue or be
sued and each pleading must contain at its head the name of the defendant
and the plaintiff.
 It is pertinent to determine the necessary parties or unnecessary parties
before filing a suit.

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 Plaintiff as Dominae Letis: A plaintiff in civil procedure is free to sue any
defendant whom he thinks he has a claim and cannot be forced to sue
somebody. See; Animal Feeds V A – G [1990] HCB;
 In the case of Major Roland Kakooza Mutale vs. AG [2001-2005] HCB
110, the Inspector General of Government applied to be joined as a
defendant in a suit against the Attorney General and his Lordship
Yorokamu Bamwine (as he then was) declined to after setting down the
principles under which an application of this nature would be allowed. I
quote;-

‘Generally speaking, under 0.1 r 10(2) CPR gives court wide powers to
strike out or add parties to suits. However such addition cannot be
for the sake of it. There must be a compelling reason to do so. The
principles under which such application can be allowed are fairly
known.

1. The plaintiff is at liberty to sue anybody he thinks he has a claim

against and cannot be forced to sue somebody. Where he sues a
wrong party, he has to shoulder the blame. See Bahemuka vs.
Anywar & Anor [1987] HCB 71.
2. Court has no jurisdiction under O.1 r 10(2) to order the addition of
parties as the defendants where the matter is not liable to be
defeated by non joinder when they were not persons who ought to
have been sued in the first place; and where their presence as a
party is not necessary to enable the court effectively to adjudicate
on all questions involved.
3. A defendant will not generally be added against the plaintiff’s
wish. See Coffee works (mugambi) ltd vs. Kayemba HCCS No.
505/1963.

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 A plaintiff is entitled to choose the person whom he/she wishes to proceed
against and to leave out any person against whom he/she does not wish to
proceed against. Read Kakooza Mutale V AG[2001-2005] HCB 110;
Dairy Corporation V Morris Ogwal and Otai Samuel [2001-2005] HCB
115;

 Butemuka Vs Anywar and Another. [1977] HCB 77 ; A preliminary objection

was raised; that the Applicant had sued the 1 st Respondent who would not
have been a party to the suit and against the tenants already in occupation
of premises. Held: That non-compliance with the rules of procedure must not
determine the proceedings if there is no injustice caused to the parties. The
present application fell under the general rule; that the plaintiff is at liberty to
sue anybody he thinks he has a claim against and cannot be forced to sue
somebody.

 Where a plaintiff proceeds against the wrong party, he has to shoulder the
blame Kakooza Mutale V AG and Anor.[ 2001-2005] HCB 110; Read
Manzur Alam V The Embassy of Saudi Arabia

 On effect of suing a wrong party; Where a plaintiff sues a wrong party, court
has to strike out the plaint Butemuka Vs Anywar and Another. [1977]
HCB 77; Read Manzur Alam V The Embassy of Saudi Arabia; [see the
distinction between a wrong party and a non existing party and the remedies
available. See O.1 r. 10CPR; See Narrottam Bhatia And Anor V Boutique
Zhazim Limited HCCS No. 411 of 1992;

 Importance of identification of parties ; The choice of parties is important in

determining the mode of procedure, enforcement of judgments, in obtaining
remedies and costs. The parties must be correctly stated otherwise failure

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 thereof would result in loss of the remedy against the wrong party as well as
expenses.

 General Principles Governing Capacity to sue or be sued

 The general rule is that all parties with legal capacity can sue or be sued.
See RTD Col Dr. Kiiza Besigye & Others V The DPP & AG
Constitutional Petition No.12 of 2006; the constitutional court reiterated
the principle that only parties recognized by law as having a legal existence
can sue or be sued. Since the DPP was not a legal entity but a department
of the government that had no independent legal existence and was not a
suable entity.

 It is a well established proposition that in general only legal persons can sue
or be sued. Legal persons may be individuals, corporations, corporation
soles or companies, firms may sue or be sued in certain circumstances.
Eddie Rodrigues V The British High Commission SCCA NO.8/87. Odoki
JSC [ see Quotation in Manzur Alam V The Embassy of Saudi Arabia
HCCS NO.402 OF 2002

 A legal person is an entity that has the legal capacity to represent its own
interests in its own name, before a court of law, to obtain rights or
obligations for itself, to impose binding obligations, to grant privileges for
example as plaintiff or defendant; It is a status that is conferred by law and
not simply assumable. A legal person exists whenever a law recognises, as a
matter of policy, the personality of any entity, regardless of whether it is
naturally considered to be a person or not. See Kakooza Mutale V AG and
Anor.[ 2001-2005] HCB 110

 In the case of V.G Keshwala v. M.M Sheikh Dawood (Misc. App. NO 543
OF 2011 Court held that a suit filed by a nonentity cannot be cured by
substitution of the nonentity neither can the plaint filed by a nonentity or a

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 suit against a nonentity be sustained or amended because it discloses no
cause of action. That by analogy a nonentity incorporates the legal doctrine
of a capacity to sue and establishes the same that only a party with legal
capacity to sue can bring an action in a court of law. The Tanzanian case
of BabubhaiDhanji Pathak V. ZainabMrekwe [1964] EA 24,was cited
where a suit was filed in the lower court in the name of a dead plaintiff 45
days after her death and an application to substitute the deceased plaintiff
under order 1 rule 10 was allowed in ignorance of the fact by the
Magistrate. On appeal to the High Court Law J held at page 26: “A suit
instituted by a dead person is a nullity. The power to substitute a plaintiff
where a suit has been filed in the name of a wrong person, conferred by
Order 10, r. 1(1) in the First Schedule to the Indian Civil Procedure Code,
can only be exercised where the “wrong person” was living at the date of
instituting the suit, and has no application where the “wrong person” was
dead at such date.

 All legal persons can sue and or be sued. There are however differences in
procedure thus it is necessary to establish the right parties to the suit. See
discussion on commencement of suits

 Note He/she who is empowered to sue is also made liable by necessary

implication to be sued. In the case of the Commissioner General Uganda
Revenue Authority v Meera Investments Ltd Civil Appeal NO.22 OF
2007 Kanyeihamba JSC held that the rights, powers and obligations
prescribed under the Uganda Revenue Authority Act are not exclusive to the
Authority. That if the Commissioner General can sue to recover tax, he or
she can be sued by a party unhappy with the tax assessments made by the
Commissioner General or officers under him or her.

 Difference Btn Capacity & Locus to sue

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 Locus standi is the right that one has to be heard in a court of law or other
proceedings. Once one has a direct interest in a matter, then one is eligible
to claim relief in respect of that matter if that one’s interest is being
adversely affected. Such person is said to have locus standi and his or her
cause of action is disclosed. See Kithende Appolonaris Kalibogha and
another vs Mrs Eleonora Wismer, CACA No.34 of 2010. In civil matters a
person must be a person aggrieved before such a person can have locus to
appear in court.
 In the case of Sentiba Gordon & 2 Ors Vs Inspector of Government
(SCCA NO 06 OF 2008) the appeal raised several issues of great public
importance concerning the legal capacity and locus standi of the
Inspectorate of Government, limitations on the investigative powers of the
Inspectorate, the role of the Attorney General as the Principal Legal Advisor
to Government and the Independence of the Judiciary. The main issue on
appeal was whether the respondent has legal capacity to sue and be sued. 
Other related sub issues was whether the respondent had locus standi to
bring the proceedings, whether the respondent can intervene in civil actions
where the Attorney General is a party representing Government and
whether it can intervene as an aggrieved third party in proceedings where it
is not a party.  Odoki C.J (by then) held that there is nothing in the Article
227 or Section 2 of the Act which confers on the respondent corporate
status or legal capacity to sue or be sued.  That if Parliament had wanted to
confer corporate status on the respondent nothing could have stopped it
from doing so, but it did not in its wisdom do so. There is no provision in
the Constitution, the Inspectorate of Government Act or any other law
which confers corporate status on the respondent and it would be wrong for
the Court to confer such status on the respondent when Parliament in its
wisdom did not find it necessary to do so for effective enforcement of the
powers of the respondent.  That it is trite law that the Attorney General is

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 the Principal Legal Advisor to Government as provided for in Article 19(3) of
the Constitution, and that the legal opinion of the Attorney General is
generally binding on Government and public institutions like the
respondent.  See Bank of Uganda vs Bank Arab Espanol. Therefore the
respondent is not correct in submitting that it can intervene or take over a
case where the Attorney General has decided not take action or taken a
different action in order to save the Government from losing colossal sums
of money.  The respondent is a creature of the Constitution and Statute and
its functions and powers are clearly laid down in those legal instruments.  It
is not the function of the Courts to confer corporate status or legal capacity
or similar powers on public institutions or bodies which are not specified in
the parent or enabling laws.  In the present case the powers of the
respondent to investigate, prosecute criminal cases, or make other orders,
are not affected by the absence of legal capacity in civil cases.  Indeed the
respondent may make applications in appropriate cases involving
corruption and abuse of office.
 Individuals
 While most individuals may sue or be sued, limitation exists with regard to
certain types of persons like children, incompetent persons, aliens and
convicts. Adults of sound mind are competent parties and they are
competent to institute a civil action.

[See S. 117 of the Evidence Act on competence of witnesses being

persons of age and sound mind, [see also Article 31 of the constitution, on
the majority age being 18; Cf age for civil proceedings being 21 before the
1995 constitution, see Article 273 of the constitution].

In the case of George Paul Emenyu & Anor. V AG [1994] V KALR 109
Okello J held that a person is guilty of contributory negligence if he ought to

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 have foreseen that if he did not act as a reasonable prudent man, he might
hurt himself and he must take into account that others may be.

Abdul Basit Sengooba & Others V Stanbic Bank HCT -00-CC-CS 0184-
2001[2006]; Read Kiga Lane Hotel Ltd V UEDCL HCT-00-CV-CS-0557-
2004

 Natural persons who are full and mentally competent can sue or be sued
without limitation. Upon death such a person ceases to exist as a party and
actions on behalf of the estate are taken in a representative proceeding by
the executors or administrators of the estate. See s.192 of the Succession
Act and O.31 CPR.
 Administrators and Executors
 The Administrator of an estate of a deceased person is appointed by a grant
of letters of administration, while the executor named in a will is appointed
by court through grant of letters of probate. The rules provide that
administrators or executors of the estate of the deceased person may sue or
be sued on behalf of or representing the estate without joining any of the
beneficiaries.

 Sec. 192 of the Succession Act provides for the effect of letters of
administration. Letters of administration entitle the administrator to all
rights belonging to the intestate as effectually as if the administration has
been granted at the moment after his or her death.
 Sec. 180 of the Succession Act provides for character and property of
executor or administrator. The executor or administrator, as the case may
be, of a deceased person is his or her legal representative for all purposes,
and all the property of the deceased person vests in him or her as such.
 Read O.31 CPR.

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 In the case of Michael Mulyanti & Anor v Jackeline Batalingaya & 3 Ors
(Civil Suit No.434 of 2008) the issue was whether the Plaintiffs have locus
standi to bring the suit. Court held that indeed under Section 180 of the
Succession Act an administrator of a deceased person is his or her legal
representative for all purposes and all property of the deceased person vests
in him or her as such. Furthermore under Section 192 and 193 of the
Succession Act Letters of Administration vests in the administrators all
rights and interests belonging to the intestate as effectually as if
administration had been granted at the moment after his or her death:
See Khalid Walusimbi v Jamil Kaaya& Another [1993] IKALR 20. In the
instant case, the Plaintiffs as administrators and beneficiaries to the estate
of the late Moses Mulyanti are clothed with power to oversee the estate of
the late Moses Mulyanti, including bonafide or lawful occupancy, if at all
they subsisted. Prima facie therefore, the Plaintiffs capacity and the nature
of their claim clearly establishes a cause of action, hence locus standi to
institute and prosecute this suit. That establishing locus standi is different
from proving it because the latter deals with proof by evidence whereas the
former involves looking at the Plaintiff’s pleadings.

 Beneficiaries of deceased’s estate.

 A non-holder of Letters of Administration who is a beneficiary has locus
standi to institute proceedings in respect of the estate. The Supreme Court
in the case of Israel Kabwa vs Martin Banoba Masiga Civil Appeal No.2 of
1995 (SC) upheld the holding of the trial judge that the respondent’s locus
standi was founded on his being the heir and son of his late father.
Tsekooko JSC held as follows: “The editors of Williams and Mortimer on
Executors, administrators and Probate(15thEdition of Williams on
Executors and 3rd Edition of Mortimer on Probate) at pp. 84 and
454  et seq  show that an intending applicant for Letters of

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 Administration can institute an action to stop trespass to a
deceased’s land.  .... (This ground) would still fail, in my view, even if
no letters of administration had been obtained because the
respondent’s right to the land and his developments thereon do not
depend on letters of administration.”
 In the case of Jacob MutabaziVs. Seventh Day Adventist Church & Anor
(Civil Suit No. 054 of 2009) the plaintiff, a one Jacob Mutazindwa sued
the first and second defendants for trespass and/or fraudulent acquisition
of land situated at Kireka hill.  The plaintiff contended that he is a bonafide
occupant and thus lawful owner of land currently held by both defendants,
being the heir and sole surviving descendant of his father, a one Enoch
Mwambali, from whom he purportedly derives legal title to the land. No
evidence was adduced in court to prove that the plaintiff is indeed
Mwambali’s customary heir.  However, according to the record the plaintiff
had secured a certificate of no objection to the grant of letters of
administration and was on course to secure Letters of Administration in
respect of Mwambali’s estate. On the question of the locus standi of a non-
holder of Letters of Administration to institute proceedings in respect of the
estate, that the Supreme Court in the case of Israel Kabwa vs Martin
Banoba Masiga Civil Appeal No.2 of 1995 (SC) upheld the holding of the
trial judge that the respondent’s locus standi was founded on his being the
heir and son of his late father. Tsekooko JSC held as follows: “The editors
of Williams and Mortimer on Executors, administrators and
Probate(15thEdition of Williams on Executors and 3rd Edition of
Mortimer on Probate) at pp. 84 and 454 et seq show that an intending
applicant for Letters of Administration can institute an action to stop
trespass to a deceased’s land.  .... (This ground) would still fail, in my
view, even if no letters of administration had been obtained because
the respondent’s right to the land and his developments thereon do
not depend on letters of administration.” That on the basis of the
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 foregoing ruling, the plaintiff does have locus standi to institute the
proceedings.
 Donees of Power of Attorney

 A holder of power of attorney ought to take proceedings in the name of the

owner of the property, the donor. Suit instituted in the name of a donee of a
power of attorney should be struck out for being a nullity.

 In the case of M/s Ayigihugu & Co. Advocates V Munyankindi Muteeri;

[1990-91] KALR 194; a firm of advocates was a donee of special power of
attorney which empowered it, inter alia, to commence and continue
proceedings on behalf of the donor. While exercising the power of attorney
the firm took on action to court against the defendant in its names.
Tsekoko J (as he was) took note of the position and held that since the
plaintiff was a donee of power of attorney he did not have a cause of action
and therefore he could not institute a suit in his own name. He was an
agent and he could only sue in the name of the principal.

 A power of attorney which does not authorise the done to institute a suit
cannot be used to file a suit and the suit is bound to be struck out having
been from the beginning a nullity and life cannot be subsequently breathed
into it as this is not a mere defect in authority but a complete lack of it and
cannot be ratified thereafter. See Vijay Morjaria v Nansung Madhusingh
Darbar Civil Appeal No. 06 of 2000.

 The Court may however order that appropriate parties be substituted in the
interest of justice. In the case of Kateregga Paul vs Tugume Jackson
HCMA No.885 of 2014 the respondent raised the issue of locus standi of
the applicant in which he contended that the applicant/ plaintiff was not
the rightful party to sue him since the applicant had instituted the main
suit on the basis of a powers of attorney where he was “the donee of the

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 powers of attorney from which he derived his powers of attorney to institute
the suit. The issue was whether the applicant/plaintiff has the requisite
locus standi to institute the current application. Court held that the
contested powers of attorney when read do not explicitly provide that its
donee may sue or be sued in his own names. However reading of Order 1
Rule 10 of the Civil Procedure Rules the law therein empowers a court to
order that the appropriate parties be substituted if it is in the interest of the
justice of the matter to do so. That the Applicant’s names be substituted
with those of the donor of the powers of attorney.
 In the case of Bizimana David & 2 others vs. Johnson HC Civil Appeal
No. 52 OF 2008 a preliminary objection raised that the claimant had no
cause of action or Locus Standi to sue the Defendants and that the Suit was
wrong in law in that it was brought in the names of the alleged Attorney
rather than the mother who is allegedly the donor of the powers of Attorney.
Court held that the test was whether the plaintiff had a cause of action.
That the error was not fatal to the plaintiffs cause of action. Order 1 rule 10
of the Civil Procedure Rules, permits that at any stage of the Suit if satisfied
that the suit has been instituted through a bona fide mistake, and that it is
necessary for the determination of the real matter in dispute to do so the
court may order for substitution or addition of parties as it thinks fit. That
the Claimant’s Advocate who is presumed to be more knowledgeable on the
procedural Law paid no attention to these available avenues.
 Companies & Directors/ Shareholders and Companies Limited by
Guarantee

 Companies are competent parties that can sue or be sued in their corporate
names. The most outstanding feature of an incorporated company is its
corporate personality. The corporation is a legal entity distinct from its
members and directors. Read Companies Act, 2012. Salmon —V-
Salmon [1897] AC 22,

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 In the case of Kabale Housing Estates Tenants Association v Kabale
Municipal Local Council (CIVIL APPLICATION NO.15 OF 2013 the main
issue for determination was whether Mr. Rwaganika was duly instructed to
represent the Applicant. KITUMBA J.S.C held that Mr. Rwaganika was only
instructed by a few members of the company to represent them and not the
company itself. As counsel he should have known how to proceed to
represent the minority shareholders and not the company. That his
instructions as counsel for the applicant had ceased when the applicant
passed the special resolution appointing Mr. Mwebesa as its counsel. That
where a wrong has been done to the company and an action is brought to
restrain its continuance or to recover the company's property or damages or
compensation due to it, the company is the true plaintiff. See: Gray Vs
Lewis [1873]8 Ch App 1035.The appropriate agency to start an action on
behalf of the company is the board of directors, to whom the power is
delegated as to manage the affairs of the company. See: United
Assurance Co. Ltd v A.G [1995] KALR 308. Court further held that in
instances where a shareholder is aggrieved with what the directors or
majority shareholders did, the share holder could bring a derivative suit on
behalf               of the minority.

 A company is a separate legal entity from its directors, shareholders and

other members. In Sentamu V UCB [1982] HCB, the plaintiff was a majority
shareholder and director of a company that borrowed money from the
defendant bank and failed to pay prompting the defendant to cause his
arrest and imprisonment. The plaintiff sued for damages arising out of
unlawful arrest and false imprisonment. It was held that a company is a
separate legal entity from its directors, shareholders and other members.
That individual members of the company are not liable for the company
debts. It was thus unlawful to arrest the plaintiff for failure by the company
to pay its debts, as the proper party was the company.

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 Where a plaintiff proceeds against a director of the company for actions
/omissions of the company, the suit may be struck out as being against
wrong party. In the case of Lukyamuzi James V Akright Projects Limited
and Anatoli Kamugisha HCCS No. 319/2002; the second defendant, a
director in the 1st defendant Company raised a preliminary objection to the
effect that he was improperly joined as a party to the suit since the act
complained of were allegedly those of the Company and therefore a separate
legal entity from its Directors. Justice Arach Amoko held that it was clear
that whatever the 2nd Defendant did in respect of the sale transaction he did
in the company name and not in his name. He signed the sale agreement
‘For Akright Projects Ltd’ and issued a cheque on account belonging to
Akright project Ltd and not his personal account. Relying on the case of
Solomon vs. Solomon that the company is at law a different person
altogether from subscribers and that though it may be after incorporation
the business is precisely the same as it was before, and the same persons
are managers, and the same persons receive profits, the company is not in
law the agent of the subscribers or trustee for them. Nor are subscribers, as
members, in any shape or form, except to the extent and in the manner
provided by the Act. That it follows that the 2 nd defendant as a director of
the 1st defendant is not liable for any acts or omissions of the 1 st defendant.
That he was a wrong party to the suit and his name accordingly struck out
with costs.

 Corporate personality however cannot be allowed to be bluntly used as a

clock for the fraudulent or improper conduct of the company’s members. In
the case of Lea Associates Limited v Bunga Hill House Ltd High Court
Misc. Appl. No. 348 of 2008 was an application seeking leave to amend its
pleadings to include Chris Wilson a director of the Respondent as Co
defendant. Court held that it is an undisputed fact that at all material times
Chris Wilson was the Managing Director of the Respondent Company. That

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 the most outstanding feature of an incorporated company is its corporate
personality. The corporation is a legal entity distinct from its members and
directors. That the Applicant cannot maintain a claim for Commission from
the Respondent’s director Mr. Chris Wilson. Court further held that
however, Corporate personality cannot be allowed to bluntly be used as a
clock for the fraudulent or improper conduct of the company’s members.
That in the intended Amended plaint, the Applicant has shown that it has a
right to financial gain and that it has suffered loss thereof due to the
fraudulent conduct of the Respondent. That whether Chris Wilson the
director committed the alleged acts of fraudulent is a matter for courts
determination, not at this stage but upon evidence adduced by both parties.
That the intended amended Plaint discloses a cause of action against the
intended 2nd Defendant. The alleged applicants financial loss; whether
caused by the Respondent’s breach of the Agreement between the
Respondent and the Applicant or by the Intended 2 nd Defendant’s allege
fraudulent conduct, arises from the same translation, that is the sale of the
Respondents property. The amendment sought will not cause any injustice
to the Respondent. Multiple suits will thereby be avoided. Considering all
the above the court allowed the application to add Mr. Mr. Chris Wilson as a
second defendant and to amend the plaint.

 Authority to commence a suit in the names of a Company

 Question is whether it is mandatory for a company to pass a resolution

authorising commencement of a suit. To bring a suit in the names of the
company there must be authority from the company. There must be a
special resolution authorising the suit. In the Bugerere Coffee Growers V
Ssebaduka [1970] EA 147; held that when a company authorises
commencement of legal proceedings, a resolution has to be passed, either by
the company’s meeting or the Board of directors’ meeting and recorded in

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 the minutes. In that case, no such meeting was held to authorise the
advocates to commence the suit in the company’s name.

 The company must authorise the suit in its name when it is in receivership.
See Bamford vs Bamford [1961] 1 ALL ER 969.

 Unless the law specifically required it, a resolution to authorise

commencement of a suit by the company is not necessary. In the case of
United Assurance Co. Ltd vs. AG SCCA No. 1 of 1986, Wambuzi C.J
held ‘‘that a resolution is one of the ways of proving the decision of the Board
of Directors, and that unless the law specifically insisted on a resolution, he
was not prepared to insist on it. Authority to bring action in the name of the
company is not one of the instances where the Companies Act required a
resolution.’’

 In the case of Contraction Engineers & Builders Ltd V The New Vision
& 3 Othrs [1994] III KALR 37; Court held that the fact there are no
shareholders of the Plaintiff Company in Uganda and PWI (Managing
Director) is the sole director of the company in the country, and according
to him when the article appeared in the newspaper he went to Nairobi and
held meeting with other directors to decide on what course of action to take,
and decided that the suit be filed against the defendants in the name of the
Company for redress. That when he returned in Uganda and instructed a
firm of advocates to file this suit in the name of the company against the
defendant, and considering the authority in United Assurance Ltd vs. A.G
and of the available evidence, the authority given by the Managing Director
to a firm of Advocates to file a suit is effective authority for the suit to be
instituted.

Fam International Ltd & Anor. V Mohamed El Fatih [1994] III KALR
108 SC; N.K Radia Vs. Kakkybhai & Co. Ltd [1995] I KALR 87

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 Unincorporated entities, Associations, NGOs, Churches, Registered
Trustees etc

 An unincorporated association is not a legal entity capable of suing or being

sued. An association or club that has not attained corporate or quasi-
corporate status by statute has no legal existence apart from its members.
Actions involving an unincorporated association are brought, not in the
name of the association, but in the name of members involved either
personally or in a representative capacity, or against trustees of the property
of the association.

 . These include clubs, associations, some NGOs and churches among

others. In Okwonga Vs Anywar &Another [1984 HCB] 45, In this case, an
action was commenced against the Church of Uganda and the 1 st
Respondent objected that C.O.U was not legal entity and could only be sued
through representative action. Held: it was held that unincorporated
organizations are not competent parties to suits. As a religious organisation,
the C.O.U. is not a corporate body to run its own affairs. A board of trustees
is constituted with the power to sue and be sued. That being so, C.O.U was
wrongly sued and plaint was struck off subject to an application for
amendment. [See O.1 R.10 CPR.

 Also Makula international V Cardinal Nsubuga [1982] HCB, where the

action was commenced against the cardinal yet the contract was executed
with the Catholic Church and court held that the action could not be
sustained except through a representative suit.

 However, some churches normally have a board of trustees registered under

the Trustee’s Incorporation Act. The board of trustees upon registration
acquires corporate status and is the suable entity. See S.4 of the Trustee
Incorporation Act; Examples include the Board of Trustees of Namirembe

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 Diocese. For the Catholic Church, it is The Trustees of Kampala Arch Diocese
see also; the Uganda Muslim Supreme Council.

In the case of The Trustees of Rubaga Miracle Centre V. Mulangira

Ssimbwa (Miscellaneous Application Number 576 of 2006 and
Mulangira Ssimbwa A.K.A Afidra Milton V. The Board of Trustees,
Miracle Centre and Pastor Robert Kayanja (Miscellaneous Application
Number 655 OF 2005) (both Applications arising from HCCS No. 768 of
2004). In the first application the defendant sought to have the plaint
rejected on the ground that the defendant described as the Board of
Trustees, Rubaga Miracle Centre Cathedral is a nonentity and had no
capacity to sue or be sued. On the other hand the plaintiff in MA 655
sought leave to amend the plaint by adding Pastor Robert Kayanja. Justice
Remmy Kasule held that, where the amendment by way of substitution of a
party purports to replace a party that has no legal existence, the plaint
must be rejected as it is no plaint at all. He accordingly allowed the
application to reject the plaint and dismissed the application for
amendment. Justice Remmy Kasule (as he then was) went further to hold
“… The law is now settled.  A suit in the names of a wrong Plaintiff or
Defendant cannot be cured by amendment … the Defendant described
as The Board of Trustees Miracle Centre Cathedral does not exist in law. 
The attempt to add Pastor Robert Kayanja, is really an attempt to substitute a
non existing Defendant.  The law does not allow that as in reality there is no
valid plaint in the suit …”

 Government
 Government is a suable entity but suits by or against government are
initiated in the name of the A-G; Article 250(2) of the constitution
provides that civil proceedings by or against the Government shall be
instituted by or against the Attorney General; and all documents required to

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 be served on the Government for the purpose of or in connection with those
proceedings shall be served on the Attorney General.
 Section 10 of the Government Proceedings Act provides for parties to
proceedings. Civil proceedings by or against the Government shall be
instituted by or against the Attorney General. Read Charles Harry
Twagira V AG, DPP & Sam Kyomukama [2008] HCB 28
 In the case of Attorney General & Peter Nyombi vs. Uganda Law Society
(Misc. Cause No. 321 of 2013) the issue was whether the Attorney General
can retain and instruct Kampala Associated Advocates, a private legal firm
to represent it and perform legal services without complying with the Public
Procurement Laws and Regulations?. Court held that by appointing
Kampala Associated Advocates as counsel for the first applicant, the effect is
that they were vested with the authority of duly appointed advocates for the
Attorney General with full instructions to act on behalf and for the Attorney
General and entitling them to remuneration by the Attorney General which
comes from public coffers or the consolidated fund. In case the respondent
lost the case, then the latter would be liable for the costs on a party to party
basis. Consequently that it was irregular for the learned Attorney General to
have retained the Kampala Associated Advocates as lawyers to provide
professional services to the Attorney General without following the PPDA Act
and Regulations as amended.

 Government is liable for acts of its employees committed in the course of

their employment. See S.3 of the Government Proceedings Act.[see
procedure of commencing suits against Government]; See Wakiso Cargo
Transporters Ltd V Wakiso District Council & AG HCT 00-CCCS
070/2004; Read Victor Juliet Mukasa & Anor. V AG [2008] HCB 168;
 Local Government Council, Town Council, Municipal Council

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 Local Governments; S. 6 of the Local Government Act as amended confers
legal status on local Governments; they can sue of be sued. Read S.3 LGA
for the definition of a local Government.
 Local Government council are the suable entities under the Act not Local
Administrations. See Kitgum District Administration V Print and
Stationary Suppliers CACA 44 of 1998. Action brought against District
administration after the enactment of the LGA, objection that the suit was a
nullity having been brought against a non-existent entity. Held; that the
District Council was liable, as it had by law inherited the liabilities of the
local administration. [Inapplicable to new districts]
 Local governments have independent existence from the central government
and are liable for their acts or acts of their servants. See Wakiso Cargo
Transporters Ltd V Wakiso District Council & AG HCT 00-CCCS
070/2004; The attorney General could not be held liable for breach of a
contract executed by the district as the district had a separate legal
existence from the central government. Read Victor Juliet Mukasa &
Anor. V AG [2008] HCB 168; Local government administrative Unit is a
body corporate capable of suing and being sued in its corporate name under
the Local Governments Act

 Alice Katungaza V AG [2002] EA. The plaintiff claimed damages for

injuries inflicted on her due to unlawful assault inflicted on her by her
teacher in the course of her employment. The Defendant raised an objection
that the AG was not liable as the officer concerned was an employee of a
local administration; Court found that the Government and the local
administration had a separate legal existence and were distinct legal bodies.
The suit had thus been brought against a wrong party hence it was
dismissed [see alternative remedies under O.1 r.10.

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 Statutory Corporations;

 Bodies created by statute, which confers upon them a distinct legal status.
In effect, they can sue or be sued in their corporate name. Examples; URA,
see [action commenced in the names of the Commissioner General of URA,
See M/S Robo and Another V Comm. Gen of URA CACA No.55 of 2003;
Read The Commissioner General URA V Meera Investments Limited
SCCA No. 22 of 2007

 Statutory Corporations have a distinct legal existence from the

Government; Read; Uganda Pentecostal University Ltd V The National
Council for Higher Education and AG HCCA No.36 of 2005; appeal
against decision of the National Council denying the appellant a provisional
licence. Preliminary objection that the council was a body corporate with
distinct legal existence from Government and with capacity to sue or be
sued in its corporate name. See S.4(2) of the Universities Act No.7 of 2001;
But reas Paul Nyamarere V UEB in Liquidation [2008] HCB 126 on
when a statutory corporation may cease to exist. Read also
Bagamuhunda Vincent V UEB in Liquidation HCCS No. 400 of 2007

 Government Bodies/ Departments

 Some Government departments are conferred with a corporate status and

can sue or be sued in their corporate name. However there must be an
enabling law conferring such status.

 The Registrar General is also a suable entity; See s. 4 of the Uganda

National Registration Bureau

 See The Administrator General’ Act Cap 157-sec. 2. administrator General is

a corporation sole and sue or be sued in such corporate name.
Administrator General V Uganda Posts & Telecommunications

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 Corporation; [1993] IV KALR 108; observation by court that the
Administrator General could sue the defendant/respondent to recover the
benefits accruing to former employees of the defendant.

 Directorate of Public Prosecutions; just a department under the ministry of

justice and has no distinct legal existence; Charles Harry Twagira V AG,
DPP & Sam Kyomukama, Civil Appeal No.61 of 2002. That DPP is not a
corporate body and therefore has no power to sue or be sued and a suit
commenced against it is incompetent. See also RTD Col Dr. Kiiza Besigye
& Others V The DPP & AG Constitutional Petition No.12 of 2006.

 In the case of Sentiba Gordon & 2 Ors Vs Inspector of Government

(SCCA NO 06 OF 2008) Odoki C.J (by then) held that there is nothing in
the Article 227 or Section 2 of the Act which confers on the respondent
corporate status or legal capacity to sue or be sued.  That if Parliament had
wanted to confer corporate status on the respondent nothing could have
stopped it from doing so, but it did not in its wisdom do so. There is no
provision in the Constitution, the Inspectorate of Government Act or any
other law which confers corporate status on the respondent and it would be
wrong for the Court to confer such status on the respondent when
Parliament in its wisdom did not find it necessary to do so for effective
enforcement of the powers of the respondent.  That it is trite law that the
Attorney General is the Principal Legal Advisor to Government as provided
for in Article 19(3) of the Constitution, and that the legal opinion of the
Attorney General is generally binding on Government and public
institutions like the respondent. 

 Okello Okello V UNEB [1993] 11 KALR 36 ; held; that by virtue of the

functions of UNEB, it was a government department since it was
independent body seeking to observe the government overall objectives in
education. However, by its set up as a corporation sole, the respondent had
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 a choice whether to sue the board as an emanation of Government or as an
independent body.

 Non-statutory Bodies; only bodies conferred with a corporate status can sue
or be sued; in absence of a clear provision conferring such status, then such
body can’t sue or be sued as a legal entity. Amos Mugisha & Sons V
Chemical Industries V DAPCB & NRM Secretariat[1990-91]KALR 38;
That the Movement Secretariat had no distinct legal existence and could
not be sued as such

 Foreign Missions and Diplomatic Agencies

 Foreign/Diplomatic Missions or Embassies; Entitled to Immunity from

criminal and civil proceedings; see the Diplomatic Immunities Act. See the
category of officers entitled to Immunity; No immunity in case of commercial
transactions; Eddie Rodrigues V The British High Commission SCCA
NO.8/87. Held that if a government or one of its departments goes into the
market places of the world and engages in straight forward commercial
transactions, then it’s within the territorial Jurisdiction of the courts of the
foreign Sovereign. The sovereign can’t claim immunity in respect of such
transactions. See Ndibarekera V The United States of America HCCS
NO.786/97. [Also discusses the mode of service on a foreign
Government]

 Manzur Alam V The Embassy of Saudi Arabia HCCS NO.402 OF 2002

Suit for recovery of immovable property against the Embassy; issue as to
whether Court had Jurisdiction to entertain the suit. Held; That the
property in dispute being immovable and situate in Uganda, court has
jurisdiction to entertain the dispute over it. As to the proper party to be
sued; Held; that the Embassy of Saudi Arabia should not have been sued
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 as such. The proper defendant ought to have been the Kingdom of Saudi
Arabia. That an embassy is a branch and therefore an emanation of the
Government of the sending state and holds property on its behalf. The
action therefore should have been brought against that Government
Manzur Alam V The Embassy of Saudi Arabia HCCS NO.402 OF 2002;
[see remedies available where a wrong party is sued; O.1r.10 CPRs. [read full
decision]

 Partnerships

 Suits by or Against Partnerships: O.30 R 1; A partnership has no distinct

legal existence from the partners. [Compare a company]. See Benjamin
Sajjabi/T/A Namataba V Timber Manufacturers Limited [1978] HCB
202; Held; that as the defendant was not a limited liability company, it had
no legal existence. Read; Read; Geoffrey Gatete & Anor. V William
Kyobe [2007] HCB Vol.1 54

 The suit is commenced against named persons [all normally trading as a

partnership] not a suit against the firm. A suit may be brought against a
partnership even though it has been dissolved. In Nterekeya Bus Service V
Rep of Kenya 196691) ALR Comm 452, it was held that a firm has no
independent existence apart from its individual members who carry on
business both as principals and as agents of each other within the scope of
the partnership business. That the firm is a mere expression not a legal
entity. The conviction of a firm name was thus a nullity.

 O. 30 r 1 allows partners to be sued in the firm name and it is not the

partnership being sued. The plaintiff may insist on full disclosure of the
names of persons constituting a partnership. Horra Vs Horra [1959] EA
981 (K). . In that case, the defendants formerly constituting a partnership,
which had been dissolved, were served personally. Three persons entered

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 appearance but filed a joint defence. The Plaintiff applied to strike out a
defence as individual persons did not describe themselves as partners in the
partnership firm. Held; that a claim may be enforced against a partnership
without making all the partners parties thereto. Held: The partners were
not sued in the firm name in a manner envisaged under O. XXIX, r1, CPR
[now O.30]. The Plaintiff should have sued the defendants trading as the
Colonial Printing Works to conform to the Order. Having not done this, he
decided to sue them individually and as partners of the firm on their joint
liability in partnership.

 See also Sarwan Singh Vs Karan Singh [1963] EA 423 (K). Observation
by Newbold P. that power to sue in a firm name is merely procedural but it
is proper pleading to set out the names of the partners in the plaint. (See
Kasana Produce Vs Kato [1973]). Johnson VS Moss (1969) EA 654.

 Maki V Saidi [1961] 1 ALL NLR 502; That in order to succeed against a
partnership, the action must be brought; against all members of the firm,
against the firm in its registered name, against one or more partners as
representatives of the firm. Read; Reliable African Insurance Agencies V
NIC (1979) HCB 58; Read also; Kaggwa V Sohan Singh & Co.(1972) HCB

 Suits By or Against Minors and Persons of Unsound Mind: O. 32.

 In general, subject to special rules of procedure, a minor may sue or be

sued but he may not in person assert his rights in a court of law as the
plaintiff or applicant nor make himself liable as a defendant or respondent
for costs.

 O.32 r1. Every suit by a minor shall be instituted in his names by a person
who in such a suit shall be called the next friend of the minor. O 32 r 4 (1):
Any person who is of sound mind and has attained majority age may act as
a next friend of a minor or as his guardian ad litem provided that the
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 interest of such person is not adverse to that of the minor and that he is not
in case of the next friend a defendant or in case of a guardian ad litem a
plaintiff.

 Who is a minor?; Kiddu Musisi Vs Iyamulemye and Another [1965] HCD

87; Since the word minor is not anywhere defined in order 29, the court
applied common law and interpreted the word minor as being a person who
has not attained the age of 21[See Article 31 of the constitution on age of
majority and Article of 274 on interpretation of existing laws.]

 Samwiri lyamulenge vs Jovana’s Nyirakamarande 1995] IV KALR 16

– suit by a minor the issue of whether a married woman aged 20 years was
a minor required to sue through a next friend for purpose of divorce.

 Consent of the Guardian – O 32 R 4(3): No person shall be appointed as a

guardian ad litem without his consent.

 Person capable of being next friend : Any adult person of sound mind within
the jurisdiction whose interest is not adverse to that of the minor or is not a
defendant or plaintiff in the case involving the minor may be eligible to act
as a next friend. S. Wasswa & Anor. V Daniel Sentenza (1977) HCB 88;
that O.29 provides for the removal of a next friend whose interest is shown
to be adverse to that of the person of unsound mind. The court therefore
ordered the next friend to cease acting as next friend upon evidence that his
interests were adverse to the person of unsound mind.[See O.32 r.4(1)]

 In the case of Semyalo Michael versus The Registered Trustees of

Kampala Arch Diocese SCCA No. 12/2009 , the appellant had contributed
money to enable the diocese purchase shares in trust and further
contribution was made in the names of his three infant daughter. The
appellant who had also sued on behalf of the daughters as a next friend
entered a compromise on their behalf without himself. Justice Tsekooko
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 JSC held that there is no law or practice in this country which makes it
mandatory for parties with similar causes of action to institute one and only
one suit. However because of necessity of convenience and need to save time
and cost, parties who have the same cause of action are encouraged to
institute one suit and this is common practice of procedure set out in Order
1 CPR. That on the face of the appeal there can be no doubt that the cause
of action of each of the 13 plaintiffs in the original suit were similar if no
identical. That although the appellant acted as his daughter’s next friend,
which is the requirement of the law (see Order 32 r 1 CPR) each of the three
daughters had her own independent though similar cause of action and
accordingly each plaintiff was free to pull out of the suit before the
compromise was sealed by court. That the appellant being a next friend in
the same suit did not necessarily mean that if he consents to the judgement
in favour of his daughters, he must necessarily also consent to the
compromise judgement with regard to his own interest so long as his act is
not compromising claim and did not prejudice the interest of any of his
daughters, and that there is no evidence to show that the appellant’s refusal
to compromise his own interest originally in the suit prejudiced the interest
of his three daughters.

 Preference will be given to the father or mother or guardian . Some other of

the relatives or connections of the minor or their nominees may qualify but
they must be substantial and proper persons.

 Legal effect of absence of a next friend:, O. 32 r 2: if a minor is made a

plaintiff without a next friend, the proceedings may be set aside and the
plaintiff’s solicitors may be ordered to pay costs to the defendant in that
suit. This principle too applies when the minor is made a co-plaintiff
without a next friend otherwise the minor’s solicitors may be ordered to pay
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 the defendant the costs occasioned by the misjoinder. Geihuge V Gibbs
[1897] ICH 479. This was an action instituted in court without the
knowledge of the solicitors that a person joined as co-plaintiff was a minor
at the commencement of the suit. Held: That when an action is brought in
the name of the person as plaintiff without his authority and he
subsequently repudiates the action, the defendant on an application may
obtain an order for payment of costs by the solicitor who instituted the suit.
In a case where an infant was joined as a co-plaintiff by solicitors on
assumption that he was of full age, they were liable to pay the costs of the
suit when the minor applied for his name to be struck out.

 Lui Bagyenda & Anor vs loyce Kikubanja Bagyenda 1994] IV KALR

46; suit by a minor – next friend , question whether a 19 year old co-
applicant for the grant of letters of administration without a next friend
rendered the application a nullity even if the other joint applicant was an
adult.

 Hajji Sabiti Musoke Vs Uganda L.M [1978] HCB 129. During the trial it
came out that the 3rd Plaintiff was a minor and counsel for the defendant
applied that the suit be taken out of the file under O 32, r1. Held: That the
proceedings were irregular and could only continue if the plaint was
amended to include the next friend. A plaint by a minor without authority of
the next friend is improper and must be taken off the file but can be re-filed
in accordance with the law.

 Kabatoro Vs Namatovu (1975) HCB 159; A plaint instituted by a minor

without a next friend as required by law. Held; that Order 32 r 3 is
mandatory and requires that a suit brought/instituted by a minor without
attaching a next friend’s authority is incompetent and should be struck out.
When a suit is instituted by a minor without a next friend, the plaint is to

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 be taken off the file. [Jingo Vs Kabagiza (1974) HCB 294 and Kiralire V
Salongo MB 74 of 1964

 Effect of non-compliance, whether it render the suit liable to be dismissed :

Rules 1 and 2 of O 32 are only directory and not mandatory and non-
compliance with them does not automatically lead to the throwing out of the
suit. Court has discretion under r 2(1) to either take the plaintiff off the file
or make such other order in the premises as it may deem fit e.g.
amendment to include the next friend. Musoke Vs Uganda Co-op. Savings
[1978] HCB 189.

 Guardian ad Litem; When the defendant is a minor court shall appoint a

guardian Ad litem. The rule is mandatory and a decree obtained without the
appointment of a guardian is a nullity. Credit finance Corporation Ltd Vs
Kamali [1965] EA 545 (K). Suit against a minor with no guardian ad litem
appointed where decree was made thereof was a nullity.

 Objection under O.34 r 3 ; Held: That without a qualified guardian ad litem

a minor can become a party to a suit and any decree exparte without such
appointment is a nullity.

 Kiddu Musisi Vs Iyamulemye and Another [1965] HCD 87.; Held: All
suits brought against a minor must be through a guardian ad litem i.e. a
guardian appointed by court for the purpose of the suit.

 Re Brockle Bank: A man cannot be allowed to escape from payment of a

debt because the person to whom it is due is an infant. In such a case the
debtor will be entitled to cost if he asked for it. However an adult person
named on security for costs of a summons. But he makes no such an
application but allows the summons to proceed in the ordinary way.

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 Removal of a Guardian: a guardian whose interest is adverse to that of the
person of unsound mind may be removed under O. 32 r 9. Wasswa Vs
Senteza [1977] HCB 88.

 NB: another next friend may be appointed where one is incompetent. No two
or more guardians are allowed for one minor, O. 29 r 4 (2). A guardian
appointed by court shall not be replaced unless court considers it in the
best interest of the minor.

 The next friend is an officer of court appointed to look after the minor’s
interest and has the conduct of the proceedings in his hands but he is not
actually a party to the proceedings and is not, as next friend entitled to
apply them in person.

 Retirement of a next friend; O.32 r 8: A next friend may not retire without
showing that it is for the minor’s benefit that another next friend should be
substituted for him and that his proposed successor is a fit and proper
person and is not interested in the subject of the proceedings. Substitution
of a next friend: Where a person has been or is next friend of a minor in any
proceedings no other person is entitled to act as the minor’s next friend in
those proceedings unless the court makes an order appointing him as next
friend for substitution of a person previously so acting.

 See; Representation of minor by next friend or guardian for the suit. O.32 r
5 (1) and (2): Every application to court on behalf of the minor other than an
application under substitution rule shall be made by his next friend or by
his guardian ad litem.

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 Agreements on compromise by next friend or guardian for the suit, O 32 r 6.
Receipt by next friend or guardian for the suit of property under decree for
minor, O 32 r 6.

 Stay of proceedings for removal of a next friend O. 32 r 10.

 Retirement, Removal or death of a guardian for the suit, O32 r 11. Infant
plaintiff attaining full age, O 32 r 12.

 Application of rules relating to minors to persons of unsound mind; O.32

r.15; Wasswa & Anor. V Daniel Sentenza (1977) HCB 88[ see above]

 In the case of Thomas A.K Makumbi (Through Next Friend Patrick

Makumbi Vs. Josephine Katumba HCMA No. 316/2014 the applicant a
97 year old male adult sued through next friend. The issue was whether or
not the next friend herein is properly before court, given that the applicant
had not been adjudged to be insane as provided in O 32 CPR and the next
friend allegedly had adverse interest to the said applicants interests.
Justice Monica K. Mugenyi held that Order 32 CPR makes provision for
suits by or against minors or persons of unsound mind. That O 32 r 4(1)
prescribes as persons competent to serve as Next friend any adult of sound
mind whose interests are not adverse to those of the minor, and who is not
a defendant in the matter for which he acts as a next friend. That O 32 r 15
renders the foregoing applicable to persons adjudged to be of sound mind
and to persons who, though not so adjudged are found by the court on
inquiry, by reason of unsoundness of mind or metal infirmity, to be
incapable of protecting their interest when suing or being sued. In the
instant case the written authority by Mr. Patrick Makumbi, the next friend
herein, was duly appended to the plaint as annexure A. That the said next
friend is a male adult, whose mental state is not in issue and that there was
no proof of any adverse interests between the present applicant and Mr.

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 Patrick Makumbi for purposes of the latter acting as the former’s next
friend. That the question was whether there is need for such next friend in
the first place, that is whether the applicant had either been adjudged to be
of unsound mind or though not so adjudged had been found by court on
inquiry by reason of unsoundness of mind or mental infirmity, to be
incapable of protecting his interests. Court held that there is no evidence
that the applicant has ever been adjudged to be of unsound mind. That the
issue then would be whether he has been found by court on inquiry to be
incapable of protecting his interests owing to unsoundness of mind or
mental infirmity. Court further held that there is a distinction between
unsoundness of mind and mental infirmity. The Mental treatment Act Cap
279 defines a person of unsound mind as ‘an idiot or person suffering from
mental derangement. That the question of insanity, lunacy or unsoundness
of mind did not arise in the instant application. The matter before court is
an application through next friend on account of mental infirmity
occasioned by old age. That the mental treatment Act makes provision for
the adjudication of persons of unsound mind. Section 2 thereof specifically
provides for an inquiry into such persons’ state of mind. Court held that O
32 r 15 CPR is interpreted to mean that there is no need for an inquiry as
provided under the Mental Treatment Act in order to invoke the applicability
of rules 1 to 4 of the said Order to persons with mental infirmity. That
medical evidence will be sufficient to establish such mental infirmity. In the
result that the next friend herein is properly before court and there is no
preliminary question to be tried in the matter.

 Others like Government and Private Schools, Universities, Traditional

institutions etc

 The Kabaka of Buganda is also a corporation sole that can sue or be sued.
See Article 246(3) of the 1995 constitution.

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 In case of schools, unless owned by a company, the ordinary suable entity is
the management committee or the Board of governors. See Harriet Grace
Bamale(suing through her next friend) Kituma Magala V The Board of
Governors of Makerere College school[1994] 1KALR 10

 Management committee Mengo primary school and Ors v Ngabo

Newspaper 1993] 1 KALR 115 on the issue of whether the management
committees of a primary school can sue or be sued .
 Effect of a suit against a wrong or Non Existent Party & Remedy
 A suit filed by a nonentity cannot be cured by substitution of the nonentity
neither can the plaint filed by a nonentity or a suit against a nonentity be
sustained or amended because it discloses no cause of action. A nonentity
incorporates the legal doctrine of a capacity to sue and establishes the same
that only a party with legal capacity to sue can bring an action in a court of
law.
 In the Tanzanian case of BabubhaiDhanji Pathak V. ZainabMrekwe [1964]
EA 24, a suit was filed in the lower court in the name of a dead plaintiff 45
days after her death and an application to substitute the deceased plaintiff
under order 1 rule 10 was allowed in ignorance of the fact by the
Magistrate. On appeal to the High Court Law J held at page 26: “A suit
instituted by a dead person is a nullity. The power to substitute a plaintiff
where a suit has been filed in the name of a wrong person, conferred by
Order 10, r. 1(1) in the First Schedule to the Indian Civil Procedure Code,
can only be exercised where the “wrong person” was living at the date of
instituting the suit, and has no application where the “wrong person” was
dead at such date.

 In the case of Fort Hall Bakery Supply Co. Ltd V. Fredrick Muigai 
Wangoe [1959] EA 474,the plaintiff’s were an association consisting of 45
persons trading in partnership for gain but their firm was not registered

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 under the Business Name Registration Ordinance. It was submitted by the
defendants that the Companies Ordinance prohibited an association or
partnership of more than twenty persons. The plaintiffs were a group of
persons not having legal existence under the Companies Ordinance. The
plaintiffs filed the suit in the name of “Fort Hall Bakery Supply Company”.
Templeton J agreed with the words of Bankes L.J in BanqueInternationale
De Commerce De Pertograd v Goukassaow (3), [1923} 2 K.B. 682at p 688
that: “The party seeking to maintain the action is in the eyes of our law not
party at all but a mere name only, with no legal existence."He concluded by
saying at page 475: "A nonexistent person cannot sue and once the court is
made aware that the plaintiff is nonexistent, and therefore incapable of
maintaining the action, it cannot allow the action to proceed. The order of
the court is that the action be struck out, as the alleged plaintiff has no
existence. Since a non-existent plaintiff neither pay nor receive costs there
can be no order as to costs."

 In the case of Parther Vs Mpekma: Held: That a suit instituted in the

names of a dead person is a nullity and O.1 r 10 can only apply if the
person was living at the time otherwise this suit was a nullity.
 Sajjabi Vs Timber Manufacturing Ltd: Held: That a nonexistent person
cannot be sued and no amendment can be made under O.1 r 10 because
the rule applies only where the suit is in existence.
 In the case of The Trustee of Rubaga Miracle Centre vs. Mulangira
Ssimbwa (MA NO. 576/2006 nas Mulangira Simbwa A.K.A Afidra Milton
vs. The Board of Trustees, Miracle Centre Cathedral and Pastor Robert
Kayanja M.A. No. 655/2005, in the first application the defendant sought
to have the plaint rejected on ground that the defendant described as board
of trustee, Rubaga Miracle Cathedral is a non entity and has no capacity to
sue or be sued. On the other hand the plaintiff in M.A 655 sou8ght leave to
amend the plaint by adding Pastor Robert Kayanja. Justice Remmy Kasule
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 held that where the amendment by way of substitution of a party purports
to replace a party that has no legal existence, the plaint must be rejected as
it is no plaint at all. He accordingly allowed the application to reject the
plaint and dismissed the application for amendment.

 The law however empowers a court to order that the appropriate parties be
substituted if it is in the interest of justice of the matter to do so under
order 1 rule 10 (2) of the Civil Procedure Rules

 In the case of Kateregga Paul vs. Tugume Jackson HCMA No. 885/2014
an issue of locus standi was raised by the respondent in which he
contended that the applicant / plaintiff was not the right party to sue since
the applicant had instituted the main suit on the basis of the power of
attorney where he was ‘the done of the power of attorney from which he
derives his power to institute the suit. The issue was whether the
applicant /plaintiff has the requisite locus standi to institute the
application. Justice Peter Adonyo held that O 1 rule 10 CPR is to the
effect that the law therein empowers a court to order that the appropriate
parties be substituted if it is in the interest of justice of the matter to do so.
That in the instant case the pleadings in this matter show that there is a
real dispute which must be settled on merit rather than it be scuttled and
left unheard. It was therefore ordered that under O 1 r 10 CPR the
applicant’s name be substituted with those of Mr. Richard R. Stanley, the
donor of the power of attorney and such substitution be done within 10
days from the date of the ruling.

Pre Entry -2017/2018.

2. Who of the following has absolutely no capacity to be a defendant to a

suit?
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 A. A diplomat
B. A child of tender years
C. A person of unsound mind
D. A company in receivership
E. None of the above.

Pre Entry- 2010/2011.

38. An infant must file a suit in court through...

Pre Entry -2012/2013.

41. How can a club which is unincorporated be sued?

TOPIC X

JOINDER OF PARTIES AND CAUSES OF ACTION

 All persons who are parties may be joined on one side as parties.

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 In joining parties, the fundamental purposes is to enable court to deal with
matters brought before it and avoid multiplicity of pleadings. In the case of
Departed Asians Property Custodian Board vs Jaffer Brothers Limited
[1999] 1 EA 55 Mulenga JSC noted ‘in order for a person to be joined to a
suit on the ground that his presence was necessary for the effective and
complete settlement of all the questions involved in the suit, it was necessary
to show either that the orders sought would legally affect the interest of that
person and that it is desirable to have that person joined to avoid multiplicity
of suits, or that the defendant could not effectively set up a defense unless
that person was joined or an order made that would bind that other person.’’
 Joinder of Plaintiffs:
 O.1 r 1 provides that persons can be joined in one suit as in whom any right
of relief in respect of or arising out of the same act or transaction or series of
acts or transactions is alleged to exist, whether jointly, severally, or in the
alternative where, if those persons had bought separate suits, any common
question of law or fact would arise
 Joinder of defendants:
 O.1 r 3 provides that all parties can be joined as defendant against whom
any right to relief in respect of or arising out of the same act or transaction
or series of acts or transactions is alleged to exist, whether jointly, severally
or in the alternative where, if separate suits were brought against those
persons, any common question of law or fact would arise. Example, joint
owners of properties.
 Fatuma Osman Hussei vs Mahendra Umadbai Patel 1995] KALR 29 .
parties to suit under O.1 r 3 whether a person against whom the plaintiff
has no claim and does not desire to prosecute can be joined as a co-
defendant .
 Buikwe Estate Coffee Ltd Vs Lutabi: At the hearing, counsel for the
defendant made two preliminary objections on point of law that there was a

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 misjoinder of parties and causes of action contrary to O.1 r 1, O.2 r 2 and 3
(authority of advocate) and that the plaintiffs were not entitled to join them.
Held: That the right to relief existing in all 3 plaintiffs if proved by evidence
arose out of the same transaction, namely, invalid resolution of the
company which purported to oust the lawful directors and accordingly there
had been no misjoinder of parties and no misjoinder of causes of action.
 O 1 r 7 CPR provides for a situation where a person is in doubt as to whom
he may obtain relief or redress, he may join two or more defendants so that
court can determine who of them is liable.
 In all cases of joinder the situation must always be that if separate suits
were brought by or against each of the persons joined any common question
of fact would arise.
 Barclays Bank Vs Patel [1959] EA 214: Plaintiff sued the defendant as
guarantor of an over draft to the company. Judgment was obtained against
all the defendant except the 3 rd and 4th defendants. The 1st and 5th
defendants were parties to the suit and the 1 st, 2nd, 4th, 6th and 3rd
defendants objected as the suit was not maintainable as the plaintiff had
improperly joined different defendants in one action. Held: That different
causes of action accrued on different dates against different defendant. The
circumstances of liability were separate and distinct. The two causes of
action could not be disposed of together. That there was a common question
of law as the guarantees being identical in form but there was no common
question of fact in the circumstances in which the guarantees’ right to relief
arose are different and binding different defendants. All conditions must be
fulfilled in order to apply O.1 r 3.
 Karimani Vs Desai: A landlord claimed in one suit to eject two tenants from
different portions of the same property. Held; That no right to relief arose
against the tenants until they had separately ignored the notices to quit.
Those were separate and distinct acts.

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 Bank of India Limited Vs Shah: The plaintiff Bank sued 5 defendants
jointly and severally as guarantors of monies lent on an overdraft to a
company’s claim. The 2nd, 3rd and 5th defendants submitted to judgment but
the 4th defendant raised an objection that there was a misjoinder of parties
and causes of action under O.1 r 3.Held: That O.1 r3 applied because
though the plaintiff had separate remedies against the defendants, the
causes of action arose from the same transaction namely, the company’s
overdraft raised some common question of law and fact against each of
them.
 O.T. Company Ltd Vs African Produce Agency Ltd and Another: The 1st
Defendant agreed to transport for the plaintiff 400 tones of kerosene from
Kisumu to Kampala but owing to accident between the 1 st defendant’s bay
and the 2nd defendant’s bus, 367 tones were damages. The plaintiff sued the
1st defendant’s in negligence and joined the 2nd defendant by 3rd party notice.
Held: That the case of the 1st defendant collision was due solely to the
negligence of the driver of the 2nd defendant’s bus, there was thus a
question to be decided between the defendants which could not be resolved
if the 2nd defendant was dismissed from the action.
 Semakula Vs Musoke: The plaintiff sued the defendant for trespass and
conversion of his property as well as that of his wife and children. Counsel
argued that he should have included property belonging to his wife. Held:
court found that the tort of trespass constitutes an inference with
possession with the personal property of the plaintiff and his family at the
plaintiff’s house and could only be said to have been in his legal possession
at the time. That for the plaintiff to sue the defendants jointly there must be
a common question of law or fact that could arise if separate suits were
brought.
 Order 1 r 9 civil procedure rules provides for Misjoinder and
nonjoinder. No suit shall be defeated by reason of the mis joinder or non

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 joinder of parties, and the court may in every suit deal with the matter in
controversy so far as regards the rights and interests of the parties actually
before it.
 Remedy for Misjoinder:
 The CPR, O.1 r 10 provides for amendment. Sub rule (1); if the suit is in the
name of a wrong person as plaintiff or when it is doubtful as whether it is in
the right names of the plaintiff the court may at any stage of the suit if
satisfied that the suit has been instituted by a bonafide mistake and it is
necessary for determination of the matter in question to do so, order any
person to be substituted or added. See Buteraba V Serwanga
 Barclays Bank Vs Patel: Held: That the plaintiff would be given leave to
withdraw the suit and institute a fresh one or suits as he chose against the
defendants on payment of the defendants costs. The plaint were not to be
struck out as being embarrassing. See Buteraba V Serwanga
 In the case of AG & Peter Nyombi vs. Uganda Law Society HCMA No.
321/2013 Justice Stephen Musota citing O1 r 2 CPR ordered that Kampala
Associated Advocates be disqualified from representing the Attorney General
instead of ordering separate trials. That the instructions to Kampala
Associated Advocates will only remain valid for the 2 nd Applicant Mr. Nyombi
in his personal capacity. That the A.G shall continue to be represented by
his legal team of Attorney as presented on record.
 Order 1 r 10 civil procedure rules provides Suit in name of wrong
plaintiff; addition and removal of parties. Where a suit has been
instituted in the name of the wrong person as plaintiff, or where it is
doubtful whether it has been instituted in the name of the right plaintiff, the
court may at any stage of the suit, if satisfied that the suit has been
instituted through a bona fide mistake, and that it is necessary for the
determination of the real matter in dispute to do so, order any other person

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 to be substituted or added as plaintiff upon such terms as the court thinks
fit.
 In the case of Lea Associates Limited v Bunga Hill House Ltd (High
Court Misc. Appl. No. 348 of 2008) ((High Court Misc. Appl. No. 348 of
2008)) Court held that order 1 rule 10(2) court has discretion to order any
person to be joined as a plaintiff or defendant or as a person whose
presence before court may be necessary in order to enable the court
effectively and completely to adjudicate upon and settle all quests involved
in the matter before it . Such a person may be joined even if the plaintiff has
no cause of action against him or her provided that such party’s presence is
necessary for effectual and complete adjudication and settlement of all the
issues involved in the suit before court. See Mullani in the Code Civil
Procedures 17th Ed Vol II page 102, DAPCD Vs Jaffer Brother Ltd SCCA No 9
of 1998, Anorld Raphael Vs Tuch& Sons Ltd (1956) All ER 273. the
Application to add such a party could be by any of the parties or done by
the Court or its own motion. See Kilolo Curing Co Ltd Vs West Mengo Co – op
Union Ltd (1991) HCB 60. The application could even be made by any person
whose legal right will be directly affected by the grant of the relief claimed in
the action and can show that his presence is necessary to enable court
effectively and completely adjudicate all settle the suit before it.
See GoholdasLaxirioudasTana Vs Sorter Rose Munyiza HCCS No 1076 of
1987 (1990 – 99) KALR 21, Inspector General of Government Vs
KihondaButema Form Ltd & A C.A Constitutional App. No. 13 of 2006 IGG Vs
Blessed Constitution Ltd &Anor HCt-00-CC-MA-073 – 2007 . The aim is to
being an record all persons who are parties relating to the subject matter
before Court so that the dispute may be determined in their presence and
tat the same time without any prostration, inconvenience and to avoid
multiplicity of proceedings. See Ally Route Ltd Vs Uganda Development Bank
Ltd HCt-00-CC-MA-459-2007

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 In KakoozaMutale v, Attorney General & Another [2001-2005] HCB 110,
the high court considered the extent and intent of the provisions of order 1
rule 10 CPR. Bamwine, J (as he then was) laid down the criteria to be
employed by a court exercising its powers under the rule. He ruled that first
and foremost, Order 1 rule 10(2) CPR gives wide discretion to the court to
strike out or add parties to suits, and that the principle under which such
application can be allowed are that a plaintiffs at liberty to sue anybody that
he thinks he has a claim against and cannot be forced to sue anybody; and
where he sued a wrong party he has to shoulder the blame. Further that
jurisdiction under Order 1 rule 10(2) to order the addition of parties as
defendant where the matter is not liable to be defeated by non-joinder; when
they were not persons who ought to have been sued in the first place; and
where the presence as a party is not necessary to enable the court effectively
to adjudicate on all questions involved. He concluded that generally, a
defendant will not be added against the plaintiff’s wish.
 In GokoldasLaximidasTanna Vs Sorter Rose Munyinza H.C.C. S. No. 7076
of 1987 (1990 – 91) KALR 21 Justice Ouma stated:- “The law is that a
person whose legal right or who claims that his legal right will be directly
affected by the granting of the relief claimed in the action and can therefore,
show that his presence is necessary to enable the court effectually and
completely to adjudicate as above stated, may be added to the suit as a
party upon his own application (see the case of DollfusMieg Vs Bank of
England (1951) Ch 33 and Amon Vs Raphael Truck and Sons Ltd (1956) 1
QB 357)”

 Joinder of Causes Action:

 Order 2 rule 4(1) CPR provides that except as otherwise provided, a plaintiff
may unite in the same suit several causes of action against the same
defendant or the same defendants jointly; and any plaintiffs having causes

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 of action in which they are jointly interested against the same defendant or
the same defendants jointly may unite those causes of action in the same
suit.
 The rules provide for joinder of cause of action with the right of the court to
order separate trials if necessary-O.2 r 5.
 A plaintiff may join in an action more than one cause of action and when
the defendant contests the joinder of any cause of action, the plaintiff must
justify the joinder or else the objection to this joinder will be upheld by
court-O.2 r 6.
 Where causes of actions are united, the jurisdiction of the court as regards
the suit shall depend on the amount or value of the aggregate subject
matter at the date of instituting the suit-O.2 r 4(2).
 Uganda Commercial Trading Co. ltd Vs Jinja Cash Stores: Counsel
raised a preliminary objection that the suit was not maintainable as the
plaintiff had improperly joined separate defendants and causes of action in
one suit. Held: That under the Bulk Sales Ordinance the plaintiff in his
capacity as a creditor of the 1 st defendant was entitled to have any redress
against the 2nd defendant as transferee of the lorries and a common
question of law and fact would have arisen if separate suits were brought.
There was no misjoinder of the defendants or causes of action and the suit
was maintainable.
 Yokana Kakire Vs Lunyo Estates Ltd: The eight (8) plaintiffs each of whom
claimed to be a tenant of the defendant company sued for alleged
interference with their rights of possession. The defendant contended that
there was misjoinder of parties and causes of action contrary to O.1 r 1,
CPR. Held: that the causes of action set out in the plaint did not arise out of
the same act or transaction. They were of wholly distinct and different acts
of dispossession and interference of rights of possession. There was no

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 question of law or fact common to the several plaintiffs and there was a
misjoinder of plaintiffs and causes of action.
 Stroud Vs Lawson: Held: That it is necessary that both conditions should
be fulfilled and that the right to relief alleged to exist in each plaintiff should
be in respect of or arise out the same transaction and also that there should
be a common question of law or fact in order that the case may be within
the rule.

 Musitwa Kyazze Vs Eunice Busingye: Held: That no suit should be

dismissed for non joinder or misjoinder of parties or causes of action.
 CONSLIDATION OF ACTIONS / SUITS AND TEST SUITS
 O.11 r 1 provides that where two or more suits are pending in the same
court in which the same or similar questions of law or fact are involved, the
court may, either upon the application of one of the parties or of its own
motion, at its discretion, and upon such terms as may seem fit-

a) order a consolidation of those suits

b) direct that further proceedings in any of the suits be stayed until

further order.

 The rules of court provide that the court may consolidate two or more
actions which are pending in the sense that the court process has been
served and judgment has not been entered and satisfied and where;
a) a common question of law, or fact arises in action
b) the right to relief arise in respect of the same transaction or series of
transaction
c) it is otherwise desirable to approve consolidation.

 The rules also provide that the court in the consolidation order provide that
the proceedings be tried at the same time, or immediately after one another,
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 or have one stayed until the determination of the other, or be tried on such
other terms as it thinks just.
 The courts may usually make these types of orders on application for
consolidation:
1) The actions be consolidated, where upon the actions are consolidated
into one action and continue as such, with possibly a common counsel,
one set of pleading and a single discovery, judgment and bill of costs.
However the order does not require the different causes of action arising
out of the same transaction be included in one suit.
2) The actions are not consolidated but are heard together with the trial of
one immediately following the other, with separate pleadings, discoveries
and judgments. In the case of TopistaKyebitama vs. DamyanoBatuma
[1976] HCB 276 established that where two or more suits are filed
involving the same parties and arising from the same cause of action,
they should either be consolidated for purposes of determining liability or
only one of them, first in point of time be heard first.

Usually any party in the following action, who is not a party in the earlier
action, will be permitted to attend and take part in the earlier trial and
cross examine the witnesses and the evidence in the earlier action may
be used in the other separate decisions will be delivered or

3) One action will be heard with the remaining actions stayed and the
decision of the first case governing the others or with any latter case
being subsequently heard.
 Under the rules of court, the consolidation of actions is now within the
discretion of the court or judge. The discretion of court is unlimited and
consolidation may be ordered against the wishes of the plaintiff. In the case
of Stumberg & Anor vs. Potgieter [1970] EA 323 held that consolidation
of suits should be ordered where there are common questions of law or fact;

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 consolidation of suits should not be ordered where there are deep
differences between the claims and defenses in each action.
 It is intended to prevent multiplicity of pleadings. The recent rules of court
generally provide the same grounds for permitting consolidation are applied
to the joinder of parties namely;
1) Common question of fact or law
2) Right to relief arising out of the same or similar transactions; of
3) Whether consolidation is proper
4) In cross actions between the same parties arising out of the same matter
5) Same cause of action
6) Consolidation will save expenses
 The court however will refuse to consolidate suits when its prejudicial to the
plaintiff, impossible to save expenses, a person is plaintiff in one suit and
defendant in another and consolidation will result into the plaintiff
becoming a defendant, different laws applicable, different standard of proof
like fraud cases, when new pleadings required, parties represented by
different advocates, relevant matters arising subsequent to commencement,
where actions are already set down for hearing, when different issues
involved
 Test suits / Actions
 Where two or more persons have sued or been sued separately as under O.1
and could be joined in one suit, upon application of any of the parties, the
court may if satisfied that the issues to be tried in each suit are precisely
similar, make an order directing that the suits be tried as a test case, and
staying all steps in other suits until the selected suit shall have been
determined or shall have failed to be a real of the issues. O.39 r 1 and 2
CPR.

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 By the agreement of the parties, one action will be heard with the remaining
actions being stayed pending the decision in the test action. To have a test
suit / action, all the issues and evidence in the actions should be
substantially the same.
Pre-Entry Exam 2011/2012
Qn. 37 What is joinder of parties?
Pre-Entry Exam 2012/2013
Qn. 45. Define misjoinder of causes of action
Pre-Entry Exam 2014/2015
Qn. 49. Mention any advantage of joining parties and causes of action in
one suit

TOPIC XI

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 PLEADINGS:

Pleadings are important matters for parties in early stages of proceedings called
the pre-trial stage. So one should learn the rules of procedure governing
exchange and relief to avoid embarrassment caused by irregular and defective
pleadings. Time is of essence in serving, amending and filing any pleading.

The relevant law is contained in O.6, 7, 8, 9 CPR. The Plaintiff begins by

presenting a plaint being the first pleading which is filed in court and served
together with summons requiring the defendant to file his defence if he so
wishes within 15 days from the date of service on him or such time as may be
prescribed by court. Having been served the defendant who wishes to appear in
the suit present his first pleading called a Written Statement of Defence which
sets out his defence to the allegations set out in the plaint. Then a defendant
who wishes to claim something from the plaintiff would add his pleadings a
counter claim which has to be filed as a defense within time allowed for filing a
defense. If the plaintiff wishes to reply to a defence then he files in court a reply
to written statement of defence then the pleadings of the parties would be said
to be completed and the pre-trial stage would come to an end.

 Definition of a pleading

 Section 2 of the Civil Procedure Act defines “pleading” to include any

petition or summons, and also includes the statements in writing of the
claim or demand of any plaintiff, and of the defence of any defendant to
them, and the reply of the plaintiff to any defence or counterclaim of a
defendant. See Reliable Trustees Ltd V George Sembeguya HCCS No.
601/92 for the definition of pleadings;

 Documents with definition of pleadings include the plaint, Written

Statement of Defense, Counter claim, Reply to defense and counter claim,

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 petition, originating summons, notice of motion, chamber summons and
answer to petition.

 Plaintiff’s Pleadings:

 The Plaintiff is required to serve summons together with plaint and

annextures thereto upon the defendant requiring the defendant to file a
Written Statement of Defence within 15 days from the service. (O.5 r 1and
this constitutes the Defendant’s pleadings. See Mark Graves V Balton (U)
HCMA No.158 of 2008 for time within which a defence should be filed; See
also Rule 11 of the Government Proceedings (Civil Procedure) Rules .;
AG is given 30 days within which to file a defence.

 Plaintiff is required to serve the summons and plaint within 21 days from
the date of issue unless the time is extended on application of such plaintiff;
Read; O.5 r1(3) Century Enterprises Limited V Green land Bank ( In
Liquidation) HCT-00-CC-CS-0877-2004 Elite International Tobacco (U)
Ltd V Marchfair Stationary (U) Ltd [1997-2000] UCLR 253.

 General Objects of Pleadings:

 Knowledge of the parties as to the exact matter in dispute.
 Knowledge of what exactly is to be proved at the trial so as to reduce cost
and time of proving unnecessary facts and surprises at the trial.
 Determination of the appropriate mode of trial on questions of fact or law to
be decided by court.
 Ensuring that parties and succession do not contest similar issues.

 The Function, Rationale and relevancy of pleadings for parties and

Court

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 The Plaintiff is entitled to know the defence to the claim so as to reply to the
disputed statements by the defendant, establish facts conceded and facts
disputed to avoid procuring evidence of unnecessary facts.

 In the case of Peter Bakaluba Mukasa Versus Betty Nambooze SCCA

No.4/2009 Justice Katureebe JSC cited the statement of Order, JSC, (RIP)
in the case of Interfreight Forwarders Case at page 125:-

‘‘The system of pleading is necessary in litigation. It operates to define and

deliver it with clarity and precision the real matters in controversy between
the parties upon which they can prepare and present their respective cases
and upon which, the court will be called upon to adjudicate between them. It
thus serves the double purposes of informing each party what is the case of
the opposite party which will govern the interlocutory proceedings before the
trial and which court will determine at the trial……Thus, issues are formed on
the case of the parties so disclosed in the pleadings and evidence is directed
at the trial to the proof of the case so set as alleged by him and as covered in
the issues framed. He will not be allowed to succeed on a case not set up by
him and be allowed at the trial to change his case or set up a case
inconsistent with which he alleged in the pleadings except by way of
amendment of the pleadings…that issues are framed on the basis of the case
made out from the pleadings of parties’’.

 The purpose of pleadings was to allow the parties an opportunity to prepare

their case adequately Mbarara Coffee Curing Vs Grind lays Bank Ug.
Ltd

 That the purpose of pleadings is to let the other party know the outcome of
the adversary’s case to prepare a defence. Each of the alternate pleadings
must show this. Painetto Mubiru Vs UCB (1971) HCB 144:

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 The function of pleadings is to give a fair notice of the case, which has to be
met so that the opposing party may direct his evidence to the issue
disclosed by them. Esso petroleum Co. Ltd vs. South Port Corp (1956)
AC 218

 It is trite that the object of pleadings is to bring the parties to a clean issue
and delimit the same so that both parties know beforehand the real issue
for determination at the trial In Kahwa & Anor vs. UTC [1978] HCB 318;
See Motorcar (U) LTD V AG HCT-00-CC-CS No. 0638/05

 Ascertainment with precision matters in contest and matters admitted to

arrive at clean issues for determination by court. H.J Stanley & sons Ltd
vs Akberali Salah [1963] EA 574-

 Rules of pleadings have been evolved in general interest so that all parties
may know the allegations they have to meet and that issues may be framed
and justice done without due delay see Kebirungi Justine vs. M/s Road
Trainers Ltd HCMA No. 285/2003[ Note decision of the High Court
rejecting a plaint for want of disclosure of a cause of action was over
ruled by the Court of Appeal but principle is still good law]

 Cardinal rule and Justifications for Exchange pleadings :

 Exchange of Pleadings: Pleadings must be exchanged in accordance with

the CPR,( O.5 and O.8 r.18 CPR] the purpose being comparison of parties to
clearly show immaterial facts and insisting that the opponent expressly
admits or denies material facts alleged against him. The law requires each
party to state his own case and answers before the hearing and this is what
constitutes pleadings.

 The cardinal rule in pleadings is that the allegations must be material and
thus only a summarized statement of material facts on which the party

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 pleading relies for his claim or defence as the case may be, but not evidence
by which those parts are to be proved.

 Kasule Vs Makere University {1975] HCB 376 : The plaintiff was assaulted
by the MUK askaris and in a suit against the university he was awarded
exemplary damages yet he had not prayed for it in the pleadings. Held: Per
curium: The system of pleadings is designed not only to define with clarity
and precision the issues on questions which were in dispute between the
parties but also to fulfil some of the fundamental principles of natural
justice. The aim that each party should have a fair and due notice of what
case he has to make, that each party should have a reasonable opportunity
of answering the claim or defence of his opponent and that each party
should have a reasonable opportunity of preparing and presenting his case
on the basis of issues disclosed in the pleadings and no others. Exemplary
damages, not pleaded were wrongly awarded.

 The essence of pleadings is to give a fair notice of the case which has to be
met so that the opposing party may direct his evidence to the issues
disclosed by them Nile Breweries Ltd vs Bruno Ozinga T/A Nebbi Boss
stores HCT 00-CC-CS – 580 / 2006

 That the purpose of pleadings was to allow the parties an opportunity to

prepare their case adequately. Mbarara Coffee Curing Vs Grind lays
Bank Ug. Ltd [1975] HCB 57Held: Painetto Mubiru Vs UCB (1971) HCB
144: Held: That the purpose of pleadings is to let the other party know the
outcome of the adversary’s case to prepare a defence. Each of the alternate
pleadings must show this. See Order 6 r(2)

 It is trite that the object of pleadings is to bring the parties to clear issues
and delimit the same so that both parties know before hand the real issues

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 for determination at the trial See Motorcar (U) LTD V AG HCT-00-CC-CS
No. 0638/05 ; See also; Kahwa & Anor vs. UTC [1978] HCB 318

 Exchange of Pleadings and Closure of Pleadings

 The plaintiff begins by presenting his claim and the defendant may put in
his written statement of defence, which besides answering the allegations of
the plaint may set up a counter-claim or set off. See O.4 r.1 and O.9 r.1 CPR

 The Plaintiff may reply within 15 days from the date of service of the written
statement of defence and thereafter, usually no further pleadings are made
save with leave of court but there may be some more joiners, some rebuttals
e.t.c. See O.8 r.18 (1) and (2)CPR on closure of pleadings; See also
notes on amendment of pleadings;

 Nature of pleadings:

 Each of the pleadings must in turn either admit or deny the facts alleged in
the last preceding pleadings though it may allege additional facts and
admitted issues are extracted.

 General Requisites for Pleadings:

 Drafting of pleadings

 Pleadings should be drafted properly to contain all the material particulars

relating to the claim but not evidence or submissions otherwise incompetently
drafted pleadings may be struck out; Re Christine Namatovu Tebajjukira
(1992-93) HCB 85 it is now trite that the pleadings must only substantially
comply in form with the rules and relevant practice directions;

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 Mohammad B. Kasasa vs. Jaspha Buyonga Sirasi Bwogi CACA No.
42/2009 C. Kitumba; JA; negligently drafting a plaint or incompetence in
doing so is not an excuse for a client to escape being bound by his counsel’s
action.

 See also Tororo Cement Co. Ltd V Frokina International Ltd SCCA No.2 of
2001 Tsekooko JSC; that Article 126 (2) (e) was not intended to encourage
sloppy drafting of pleadings.

 See also Take me Home Vs Apollo Construction on the consequences of

inadequate, sloppy and incompetent drafting of pleadings.

 Language of Pleadings

 Generally pleadings must be written in the English language because it is the

official language; Article 6 of the Constitution. Agago Lanoro Vs Gollam
Hussein. The Plaintiff filed a suit by his advocate. The unrepresented
defendant filed a defence in a suit with a document, which was not translated,
and counsel was ignorant of the language. Held: It was held that English was
the official language of the court as per the Constitution and the magistrate
ought to have ordered for the translation of the document before accepting it in
court. Read also Kasaala Growers Co-operative Society V Kakooza
Jonathan & Anor. SC Civil Application No. 19/2010 on the language of
court and documents executed by illiterates.

 Signing of Pleadings

 Pleadings must be signed either by counsel for the party or the party if such a
party draws the pleadings; 0.6.r 26 CPR; Read also Kasaala Growers Co-
operative Society V Kakooza Jonathan & Anor. SC Civil Application No.
19/2010 on the language of court and pleadings executed by illiterates.

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 In the case of Uganda Law Society and Another v Attorney General
Constitutional Petition No. 8 of 2000, the respondent, raised a preliminary
objection on ground that the first petitioner did not sign its petition as required
by rule 3 (5) (b) of Legal No. 4 of 1996, that being a corporate body, cannot
personally sign its petition. It has to be signed by somebody, i.e., its President
or Secretary for and on its behalf. yet, in the instant case, the petition was
signed by an individual as the first petitioner not for and on behalf of the
corporate body. Court held that Order 6 r 25 of the CPR however, requires that
"every pleading shall be signed by an advocate or by the party if he sues or
defends in person." That the first petitioner's petition was signed by an
individual as the petitioner. That failure to state who signed the first
petitioner's petition and the capacity in which he/she signed it is a matter of
technicality which is not fatal in view of article 126 (2) (e) of the Constitution.
This article enjoins courts to administer substantive justice without undue
regards to technicality.

 Mugabi vs. AG [1991] HCB 66; Pleadings drawn by counsel but signed by the
plaintiff; Held; The plaintiff signed as counsel for the plaintiff designedly to
flout the advocates act which was unethical on his part, which this court can’t
condone.

 Habre International trading Co. (U) Ltd vs. KCC HCT 00-CV- CS 0763
/1994 documents prepared or filed by an advocate who did not have a valid
practicing certificate at the material time are invalid and of no legal effect on
the principle that courts will not condone or perpetuate illegalities.

 Prof Syed Hug v I.U.I.U SCCA No. 47/1995. Held, On the law and the
authorities the position appears to be: 
(1)      that an advocate is not entitled to practice without a valid practicing
certificate; 
(2)      that an advocate whose practicing certificate has expired may practice
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 as an advocate in the months of January and February but that if he does so
he will not recover costs through the courts for any work done during that
period. The documents signed or filed by such an advocate in such a period are
valid; 
(3)      that an advocate who practices without a valid practising certificate after
February in any year commits an offence and is liable to both criminal and
disciplinary proceedings (see sections 14 & 18 of the Advocates Act). The
documents prepared or filed by such an advocate whose practice is illegal, are
invalid and of no legal effect on the principle that courts will not condone or
perpetuate illegalities. 

 Counsel signing the pleadings must have a right of audience before the court
where the suit is filed. Shokatalali Hussein Halji Vs Magnatal Punshotan:
The applicant’s case that Mr. Makumbya Musoke purported to represent the
plaintiff in his capacity as an advocate before the High Court. Mr. Mukumbya
had signed the plaint on behalf of the plaintiff before he satisfied the statutory
period of 9 months after enrolment before he could stand before the high court.
Held: That Mr. Makumbya Musoke had no right of audience before the High
Court when he lodged the plaint in the High Court. According to the rules, 12
of the Advocates [Enrolment and Certification] Rules he had no right of
audience before High Court until after the expiration of the period of nine
months after enrolment. The plaint was incompetent and struck out.

 Greenland Bank Ltd V H.K Enterprises Ltd & Others [1997-2000] UCLR
283; All documents and instruments drawn and filed by the advocates with
respect to the suit, at a time when they had no practicing certificates were
invalid and of no legal effect.

 The registered Trustees of the Khoja vs. UMSC CACA No. 27/2002; The
name of the person signing the pleadings or who drew the pleadings must be
indicated. The omission of putting the name of the firm that drew the
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 document at the back does not amount to an irregularity which is incurable by
amendment

 An unsigned pleading has no validity in law as it is the signature of the

appropriate person on the pleading which authenticates the same and an
unauthenticated document is not a pleading of anybody. It is a nullity. See
Regina Kavenya Mutuka and Ors vs United Insurance Company Ltd
[2002] KLR 250.

 Whenever a Defence is filed it must be signed by the party or his / her

advocate and Countersigned by the Registrar /Magistrate. There must be
provision for the court’s endorsement. i.e Registrar of Magistrate. See Kaur v
City Auto Mart [1967] EA 107.

 However Section 14A (1) of  The Advocates (Amendment) Act 2002 is to the
effect that no pleading or other document made or action taken by the
Advocate on behalf of any client shall be invalidated by any such event
and that in the case of any proceedings, the case of the client shall not
be dismissed  by reason of any such event.

 In the case of Maji Real Estates (U) Limited &Anor v Aulogo Cooperatives
Savings and Credit Society Limited, Adjumani (Miscellaneous Civil
Application No. 0028 of 2017 Justice Mubiru stated as far as the question of
signing pleadings is concerned, when dealing with advocates who are otherwise
professionally qualified, who have been admitted to the practice of law and
have not been struck off the Roll of Advocates or suspended by the Disciplinary
Committee of The Law Council but have only delayed to take out the annual
practicing certificates, the decisions of court are not uniform as to whether the
defects are of substance or of procedure. For example in Standard Chartered
Bank v. Mechanical Engineering Plant Ltd & Others [2009] EA 404, it was held
that a practicing certificate cannot have retrospective effect and therefore the

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memorandum of appeal filed by an advocate without a practicing certificate at
the time of signing it was incompetent as the advocate was unqualified.
Similarly in Delphis Bank Ltd v. Behal and others [2003] 2 EA 412, it was held
that it is public policy that courts should not aid in the perpetuation of
illegalities. “Invalidating documents drawn by such advocates we come to the
conclusion that will discourage excuses being given for justifying the illegality.
A failure to invalidate the act by an unqualified advocate is likely to provide an
incentive to repeat the illegal Act.” A similar holding is to be found in where
Court held that the documents prepared or filed by an Advocate whose practice
is illegal, are invalid and of no legal effect on the principle that Courts will not
condone or perpetuate illegalities (see also Kabogere Coffee Factory v. Haji
TwalibuKigongo, S. C. Civil Appeal No. 10 of 1993 and The Returning Officer,
Iganga District and another v. Haji MuluyaMustaphar, C. A. Civil Appeal No 13
of 1997). That on the other hand, in cases like that of Attorney General and
Hon. Nyombi Peter v. Uganda Law Society, Misc. Cause No. 321 of 2013, it was
held that though the advocate may be unqualified to practice, the legality of the
pleadings signed and filed by such an advocate while so disqualified is not
affected because of the provisions of section 14A of The Advocates (Amendment)
Act, 2002. Before this, it had been decided in Prof Syed Huq v. the Islamic
University of Uganda, Civil Appeal No. 47 of 1995, that deeming such pleadings
or documents to be illegal would amount to a denial of justice to an innocent
litigant who innocently engaged the services of such an advocate. According to
Tsekooko JSC, “the intention of the legislature appears to be aimed at
punishing the errant advocate by denying him remuneration or having him
prosecuted. I find nothing in the Provisions I have referred to which penalize an
innocent litigant. That is why the Court would deny audience to an Advocate
without a practicing certificate but should allow a litigant the opportunity to
conduct his case or engage another Advocate.’’ That section 14A (1) of The
Advocates (Amendment) Act 2002 is to the effect that no pleading or other
document made or action taken by the Advocate on behalf of any client shall be
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 invalidated by any such event and that in the case of any proceedings, the case
of the client shall not be dismissed by reason of any such event. That non-
compliance with any procedural requirement relating to a pleading or
application for relief should not entail automatic nullification or rejection,
unless the relevant statute or rule so mandates. Procedural defects and
irregularities which are curable should not be allowed to defeat substantive
rights or to cause injustice. Rules of procedure, as handmaidens to justice,
should never be made a tool to deny justice or perpetuate injustice, by any
oppressive or punitive use. That the law saving documents filed by un-licensed
advocates does not necessarily extend to those filed by persons who are not
qualified at all to practice law.

 Pleadings and Material Facts

 The Cardinal rule in pleadings is that the allegation must be material and
certain like offer, acceptance, breach etc. On materiality O6 r 1 CPR provides
that pleadings must contain a brief statement of material facts on which the
party relies for a claim or defence as the case may be. The element are that;

i) every pleading must state material facts only;

ii) Every pleading must state all material facts
iii) Every pleading must state the material facts, but not the evidence to
prove those facts
iv) Every pleading must state the material facts and not law; and
v) Every pleading must state the material facts in a summary form.

 Material means those facts necessary for the purpose of formulating a cause of
action and if any material fact is missing the proceedings will be bad.
Materiality depends on the circumstances of a material case.

 All the primary facts which must be proved at the trial by a party to establish
the existence of a cause of action or his defense are material facts.
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 Every pleading must contain only a statement of concise form of the material
facts in a given format.O.6 r 1 CPR. They must allege with continuity proof of
allegation. Pleadings should not be by way of avoidance through partial
acceptance. The function of particulars is to carry into operation the overriding
principle that the litigation between the parties and the trial should be
conducted fairly and openly without surprise. Read Bisuti V Busoga District
Admin [1971] 1 ULR 179

 Pleading to contain a Prima Facie Case: A pleading must contain a prima facie
case not based on anticipation of defences. Yafeesi Katimbo Vs Grind lays
Bank [supra] Held: That it was well settled that so long as the statement of
claim on the particulars disclosed some cause of action or raised some
question of fact to be decided y a judge or jury the mere fact that the case was
meant and not likely to succeed was no ground for striking it out. The action
was based on the fact that civil ingredients were not pleaded thus there was no
prima facie case.

 A pleading must state facts which in the party’s opinion give him a right or
imposes on a defendant a duty and it remains to the judge to consider whether
on the facts proved, such rights and duties exist.

 Material facts are facts necessary for the founding of an action. Sempebwa Vs
Attorney General: Held: That materiality depends on the circumstances of
each case. They are facts, which must be proved for the plaintiff to succeed in
his action.

 Certainty of Material facts:

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 The object of pleadings is to ascertain definitely the question between parties
and this object can only be made achieved when each of the parties states his
case with precision.

 The facts pleaded must be pleaded with precision and certainity and must not
be left to be inferred from vague or ambigious expression or from statements of
circumstances consistent with a different conclusion.

 Tran slink (U) Ltd vs. Sojitra Cargo services Ltd & ors HCT -00-CC-CS No.
0561 /2006. Held; the system of pleadings is necessary in litigation. It
operates to define and deliver with clarity and precision the real matters in
controversy between the parties upon which they can prepare and present the
respective cases and upon which the court will be called upon to adjudicate
between them. Inter freight forwarders (U) LTD vs. EADB [1994-94] HCB
54.

 NB: If one cannot be exact, be broad, as the greater includes the lesser thus
each party is allowed to prove as much of the allegations as to make out a case.
Phillips Vs Phillips and Others (1878) 4 QB 127: Cotton L.J. That it is
necessary for the plaintiff to say that he claims as heir of so and so being a
descendant of one his ancestors in the ascending line. What particulars must
be stated depends on the facts of each case but it is absolutely essential that
the pleading not to be embarrassing to the defendant in the sense that it
doesn’t indicate the case which they have to meet when the case comes up for
trial.

 If material details are omitted, particulars of the facts relied on may be

requested or ordered-O.6 r 4 CPR.

 Relevancy and nature of particulars;

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 Material particulars in an action founded on contract. Yafeesi Katimbo Vs
Grind lays Bank International (1973) HCB the Plaintiff sued the Defendant
for specific performance and in its WSD; the defendant raised a preliminary
objection that the plaint disclosed no cause of action since no consideration
had been pleaded. Whether Consideration, Offer and Acceptance in plaint had to
be averred: Held: That what particulars had to be stated in the plaint depended
on the facts of the case. Cause of action has been compendiously defined to
mean every fact, which would be necessary for the plaintiff to prove his case in
order to support his right to the judgment of court and it did not comprise
every piece of evidence which was necessary to prove each fact but every fact
which was necessary to be proved. That since the action was based on
contract; consideration was a material fact and had to be pleaded except in
negotiable instruments when it is proved. There was thus nothing in the
pleadings to show that there was a binding contract. None of the annextures
showed that the offer had been accepted. Acceptance was of the essence and
had to be pleaded. The plaint did not disclose a cause of action and would be
struck out under O7 r 11 CPR.

 Items to accompany pleading.

 Every pleading to be accompanied by summary of evidence, list of witnesses,

list of documents and list of authorities-O.6 r 2 CPR. This rule has been
interpreted as forming part of the pleadings. See Rtd Col Kizza Besigye vs
Yoweri Kaguta Museveni and Electoral Commission, Supreme Court
Presidential Election No. 1 of 2006 (Justice Tsekooko).

 A plaint must be accompanied by a summary of evidence, list of documents

and witness as per O. 6 r2; see implications of non compliance
 The issue is whether this requirement is mandatory. See Sule Pharmacy
Limited V The Registered Trustees of the Khoja Shia Itana Shari Jamat HCMA
No. 147 of 1999.
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 In the case of Eastern & Southern African Trade & Anor vs. Hassan
Basajjabalaba & Anor HCT 00-CC- CS 512/2006 –Justice Yorokamu
Bamwine held that one of the intention of amending O.6 CPR was to avoid
surprises or ambushes in matters of this nature, that, the case of Sule
Pharmacy Limited V The Registered Trustees of the Khoja Shia Itana Shari
Jamat HCMA No. 147 of 1999 covered this kind of situation. Applying the ratio
decidendi in that case to the facts herein, and given the constitution of Uganda
mandates to administer justice without undue regard to technicalities, he was
inclined to overlook the omission in the greater interest of justice and in
accordance with Article 126 (2)(e) of the Constitution.
 Particulars to be specifically pleaded in some Cases:
 In all cases in which the party pleading relies on any misrepresentation, fraud,
breach of trust, wilful default or undue influence, and in all other cases in
which particulars may be necessary such particulars with dates shall be stated
in the pleadings-O.6 r 3 CPR.

 In the case of Tororo Cement Co. Ltd v Frokina SCCivil Appeal No. 2 of
2001 Court held that whereas the plaint disclosed a cause of action, because
of the alleged negligence, the defendant is entitled to know the particulars of
negligence complained of in order to enable it to prepare its defence properly.
In that regard ground one ought to fail but I would allow ground two in part. It
is the common practice in cases of negligence for a party, or his advocate, who
intends to rely on negligence to plead particulars of negligence either within a
paragraph of the pleadings or in more than one paragraph. Reliance on the
three tests in the Motokov case must be taken with care.

 In the case of Fredrick J.K. Zaabwe vs. Orient Bank Ltd and 5 others
Supreme Court Civil Appeal No. 4 of 2006.    In the lead judgment
of Katureebe JSC had this to say at P14 of his judgment.“In my view, an
allegation of fraud needs to be fully and carefully inquired into. Fraud is a

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 serious matter, particularly where it is alleged that a person lost his
property as a result of fraud committed upon him by others. In this case
it was necessary to ask the following questions; was any fraud committed
upon the appellant? Who committed the fraud, if at all? Were the
respondents singly or collectively involved in the fraud, or did they
become aware of the fraud? I find the definition of fraud in BLACK’S LAW
DICTIONARY 6THEdition page 660, very illustrative.

 The functions of particulars are:

i) To inform the other side the nature of the case they have to meet
ii) To prevent the other side from being taken by surprise
iii) To enable the other side to know what evidence they ought to be
preparing and to prepare for trial
iv) To limit the generality of pleas or of the claim or the evidence
v) To limit and define issues to be tried and to which discovery is
required
vi) To tie hands of the party so that he cannot, without leave go into any
matters not included in the pleadings. See Bisuti v Busoga DA
[1971] 1 ULR 179.
 Read Hermesdas Mulindwa & Anor V Stanbic Bank (U) Ltd HCT-00-CC-CS-
0426-2004 for the proposition that where a party relies on fraud, the
particulars thereof must be given; Read Acar V Acar Aliro [1982] HCB 60
 Nile Breweries Ltd V Bruno Onzunga T/A Nebbi Boss Stores HCT-00-CC-CS-
0580-2006; for the proposition that order 6.r.3 is mandatory in so far as it
requires particulars to be pleaded;
 J.L Okello Okello vs. UNEB SCCA No. 12/81 [1993] 11 KALR 133 SC; In
every suit where a party relies on misrepresentation, fraud, breach of trust etc
and in cases in which particulars must be stated. The rule is mandatory and
non compliance renders the suit liable to be struck out Buckley L.J. and
Grant Vs Hobbs: It is for reasons of practice and justice and convenience to
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 require the party to tell his opponent what he is coming to court to prove
otherwise he may not be allowed to rely on it.

 Particulars must be put under a definite heading. Okello Okello Vs UNEB

SCCA No.12 of 1987] It was held that O.6 r 3 is mandatory; dates must be
given and must always be under a definite heading titled particulars of fraud.
That it is not enough for a plaintiff in his statement of claim to allege merely
that the defendant acted negligently or fraudulently and thereby caused him
damage. Particulars must be given in the plaint showing precisely in what
respect the defendant was negligent. But See Tororo Cement Ltd V Frokina
International Ltd SCCA No.2 of 2002[LLB Box]

 Mbarara Coffee Curing Vs Grindlays Bank (U) Ltd (1975) HCB 57 This
constituted to transfer of money on the plaintiff’s account without authority to
the other firm or persons. The Defendant raised two defences, one being a
denial of negligence and then the fact that the action was time barred by the
Limitation Act. The plaintiff in the course of the trial sought to rely on fraud as
a ground before extension of time, which he never pleaded. Held; That fraud
was a ground for a party to rely upon to extend the time of the limitation in the
Limitation Act. Where a party wished to rely on the fact that the defendant had
by fraud concealed the information-giving rise to the cause of action, the ground
must be made part of the pleadings and the particulars must be given;

 The plaintiff must first plead the particulars of negligence on which he relies
which will be binding on him, before he can shift the onus of disproving
negligence on to the defendant. Mukasa v Singh & ors 1969 EA 442;
Compare; Kebirungi Justine vs M/s Road Trainers Ltd HCMA No.
285/2003

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 It is necessary to specifically state the particulars of negligence. See Tororo
Cement Co. Ltd V Frokina International Ltd SCCA No.2 of 2001 for the
proposition that it is common practice in cases of negligence for a party or his
advocate who intends to rely on negligence to plead particulars of negligence in
either within a paragraph or in more than one paragraph.

 Patel Vs Fleet Transport Co. Held: An incorrect description of a particular

fact should not be fatal when the particulars of the claim have been given with
reasonable precision.

 Documents to be annexed to the Pleadings

 A party intending to rely on a document as the foundation of the cause of

action is required to annex the document to the plaint, if in his possession, or
power and any other document should be included in the list of documents;
See Order 7 r. 14 and Order 6 r.2 of the CPR; UNICOF Ltd vs Interfreight
forward Ltd HCCS No 912/1996.Where a plaintiff sues upon a document be
produced in court when the plaint is presented and a copy filed with the plaint.

 The object of O.7 r.14 is to provide against documents being set up after
institution of the suit. But where at the institution of the suit the existence of a
document is not doubt, the court should as a general rule admit the document
in evidence though it was not produced with the plaint or entered in the list of
documents annexed to the plaint Lukyamuzi v House of Tenant Agencies;
(1983) HCB 75 That the object of O.7 r 13 (Now 14) is to provide the against
false documents being set up after institution of the suit.

 Annexing a document to a pleading has the effect of incorporating the contents

of the document in the pleadings; Non- Performing Assets Recovery Trust V
Kapeeka Coffee Works Ltd SCCA No. 8 of 2001

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 Parties are bound by their pleadings and must lead evidence consistent with
their pleadings; O.6 r. 7: No pleading shall not being a petition or application
except by way of amendment raise any new ground or claim or contain any
allegation of fact inconsistent with the previous pleadings of the party pleading
the same.

 Talikuta V Nakendo (1979) HCB 275 Held : It is a statutory rule of

pleadings that a party is bound by his pleadings. But if particulars are given
in wider detail and what is proved varies from them in ways that are
material, it remains the duty of court to see that justice is done.

 Byabazaire Grace vs Mukwano Industries HCMA No. 909 /2002; A

plaintiff is bound by his /her pleadings and must establish the 1 st essential
element of a cause of action Viz , a defined right enjoyed by the plaintiff .
Where a plaint does not disclose a cause of action, it must be rejected and
the requirement is mandatory.

 Aisha Nantume vs Emmanuel Lukyamizi HC Appeal No. 011 / 2002; It

is a well known principle that a party to a suit is bound by his or her
pleadings

 Interfrieght forwarders (U) Ltd VEADB SCCA No. 13/93; A party is

expected and is bound to prove the case as alleged by him and as covered in
the issues framed. He will not be allowed to succeed on a case not set up by
him and be allowed at the trial to change his case or set up a case
inconsistent with what is alleged in his pleadings except by way of
amendment of pleadings .

 H.J. Stanley and Sons Vs Alibhai : Held; Allegation that the hearing must
not be inconsistent with the pleadings.

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 Talikuta Vs Nakendo: That it is a statutory rule of pleadings that a party
is bound by his pleadings.

 Opik Opoka Vs Muno Newspaper: At the hearing the defendant raised by

the objection not pleaded in the defence. Court found that since new facts
were raised by the objections, which were not pleaded, and accordingly
inconsistent in the pleadings put in general and the objections were
disallowed.

 Daily VS John:Held: That O.6 r 7 prohibits any party from raising in any
pleadings on ground of claim which is new or inconsistent with his previous
pleadings. That a remedy on the breach of O.6 r 7 is an application to strike
out the offending pleading either before or at the hearing and that if a party
commits to take that course and contents the writs of the pleadings as they
stand. It may subsequently be contended that the court ought not to have
determined an issue which was open for decision of the pleading as they
stood although it would not have been so open had the pleadings been
attacked at the proper time.

 THE PLAINT;
 S. 19, CPA: All suits shall be commenced in the manner prescribed in the
Civil Procedure Rules, O.4 r 1. Every suit shall be instituted by presenting a
plaint. [Compare other modes of commencing a suit under the rules; see
discussion on commencement of a suit]
 Particulars in the Plaint:
 O.7 r1 provides for particulars in the plaint.
 The name and jurisdiction of the court. Mutongole Vs Nytil. (1971) HCB
114; Counsel for the defendant contended that the plaint did not show any
averment as to jurisdiction of court. Held: That statement like, ‘this court
has jurisdiction over men’, surpluses that do not bestow jurisdiction upon
land and it had no magical qualities as long as the facts disclosed that a
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 cause of action arose within the jurisdiction. That each pleading should be
carefully drafted and treated individually and the advocates owned this
much to the clients and court. That particular case should be taken in
drafting the pleadings; all the ‘is’ and must be crossed as pleadings are the
foundation of the court case. Once the facts showing that the court had
jurisdiction had been pleaded it was not necessary to state that court had
jurisdiction.

 CAT Bisuti vs. Busoga District Admin. (1971) ULR129: Under 0.7r.I (f),
the plaintiff had the obligation of pleading facts showing that the court had
jurisdiction and a mere assertion that the court had jurisdiction was not
enough the facts showing that the court had jurisdiction had been stated in
the amended plaint.

 Name, description and place work or residence of defendant so found as can

be ascertained.( See discussion on jurisdiction)

 Name, description and place of plaintiff and address of service

 Where a plaintiff or defendant is a minor or a person of unsound mind, a

statement that effect. [See discussion on Capacity of parties]

 Plaint to Contain Facts Disclosing a Cause of Action :

 0.7r1 (e), it is mandatory that a plaint contains the facts constituting the
cause of action and when it arose. O.7 r 11 (a) provides that a plaint shall
be rejected where it does not disclose a cause of action. A plaint without a
cause of action is nothing as there is no basis or locus for such a party to be
in court in the first place.
 Cause of action has been defined as meaning simply a factual situation, the
existence of which entitles one person to obtain from the court a remedy
against another person. The phrase includes every fact which is material to
be proved to entitle a clamant to succeed and every fact which the
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 defendant would have a right to traverse. Halbury’s laws of England 4th
edition (re-issue) Vol 37 P.24 –.
 In Auto Garage vs. Motokov (1971) EA. 314 there are three essentials to
support or sustain a cause of action;
i) That the plaintiff enjoyed a right.
ii) That the right has been violated
iii) The defendant is liable for the said violation.

If any of these essentials is missing, the plaint is a nullity and ought to be

struck off. See Priamit Enterprises Limited vs. A.G SCCA No. 1/2001.

See Motorcar (U) LTD V AG HCT-00-CC-CS No. 0638/05;

 In the case of Tororo Cement Co. Ltd v Frokina SCCivil Appeal No. 2 of
2001 Court held that Order 7, rule 7(a) of the Civil Procedure Rules
provides that the plaint shall be rejected - "(a) where it does not disclose a
cause of action." That a cause of action means every fact which is material to
be proved to enable the plaintiff to succeed or every fact which, if denied,
the plaintiff must prove in order to obtain judgment. See -  Cooke -vs- Gull
LR.8E.P. page 116  and Read -vs- Brown, 22 QBD p.31. That it is now well
established in our jurisdiction that a plaint has disclosed a cause of action
even though it omits some fact which the rules require it to contain and
which must be pleaded before the plaintiff can succeed in the suit. What is
important in considering whether a cause of action is revealed by the
pleadings are the questions whether a right exists and whether it has been
violated. Cotter -vs- Attorney General (1938) 5 EACA 18.   That the guide-
lines were stated by the Court of Appeal for East Africa in Auto  Garage -vs-
Motokov (No. 3) (1971) EA. 514.   There are:
(i) the plaint must show that the plaintiff enjoyed a right; (ii) that right has
been violated; and (iii) that the defendant is liable. That if all three elements
are present than a cause of action is disclosed and any defect or omission
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 can be put right by amendment. That where a plaint discloses a cause of
action but is deficient in particulars, the alternative is to ask for further and
better particulars under  0.6 Rule 3. Or indeed, the plaintiff could have
sought leave to amend the plaint so as to include particulars, say of
negligence.

 In AG V Major General David Tinyefuza Constitutional Appeal No. 1 of

1997 adopting the definition in Mulla on Code of Civil procedure, Volume 1,
14th Edition at page 206, Wambuzi CJ sated the proposition that a cause of
action is every fact or bundle of facts plainly appearing on the face of the
plaint / petition that the plaintiff /petitioner must prove, if traversed, to be
entitled to judgment against the defendant/ respondent.

 To determine whether or not a plaint discloses a cause of action, the court

must look only at the plaint and its annexure if any, and nowhere else. In
the case of Al Hajj N Sebaggala vs. A.G & Ors Const. Petion No. 1/1999
the constitutional court defined a cause of action as follows;
‘‘A cause of action means every fact, which if traversed, would be necessary
for the plaintiff to prove in order to support his right to a judgment of court. It
must include some act done by the defendant and, it is not limited to the
actual infringement of the right sued but includes all material facts on which
it is founded. It does not comprise evidence necessary to prove the facts but
every fact necessary for the plaintiff to prove to enable him to obtain a decree
and everything that if proved would give the defendant a right to an
immediate judgment must be part of the cause of action. It has no relation to
the defense, which may be set up by the defendant, nor does it depend upon
the character, of the relief prayed for by the plaintiff. The cause of action must
be antecedent to the institution of the suit.’’

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 In the case of Micro Finance support centre ltd versus Uganda Micro
Entrepreneurs Association Ltd HCT -00-CC-CS-1007-2004, Justice
Bamwine stated: Halsbury’s Laws of England, Vol.1 at P.6 defines a “cause
of action” as “that particular act on the part of the defendant which gives
the plaintiff his cause of complaint.” it is, so to say the fact or combination
of facts which gives a person the right to judicial redress or relief against
another. The relationale is that where there is a right recognized by law,
there also exists a corresponding remedy for its violation. Thus 0.6 r1 of the
Civil Procedure Rules requires all pleadings generally to contain a brief
statement of the material facts on which the party pleading relies for claim
or defence. And under 0.7r1 (e), it is mandatory that a plaint contains the
facts constituting the cause of action and when it arose.
 In the case of GW Wanendeya v Stanbic Bank Ltd - (HCT-00-CC-CS-0486-
2005) Court held that there was no merit on the claim that this suit
discloses no cause of action. That the plaint clearly sets out the rights of the
plaintiff that were violated by the defendant, and that the plaintiff suffered
loss as a result thereof for which relief is sought from the court. That the
cause of action was a continuing cause of action with regard to the
continued detention of the plaintiff’s certificate of title and the maintenance
of a caveat on the said title. This suit in that regard is not time barred.
 In an action in Slander or libel, the plaintiff must set out all the words
complained of in the plaint:
 Erumiya Ebyatu Vs Gusbarita: [1985] HCB 63 The Applicant sued the
respondent for slander before a magistrate’s court. The Pleadings stated
that the respondent was a wizard who used to bewitch people, the actual
words used by the applicant in the pleadings. Held: That in an action for
slander, the precise words used must be set out in the plaint or statement
of claim. The plaintiff must rely on the words set out in the plaint and not
any other expression. In this case there was no allegation in the plaint that
the applicant had said that the respondent had bewitched his deceased
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 father, thus there were inconsistencies as between the pleadings and
evidence in court. Further held; in an action for slander the names of
persons to whom the words were uttered must be set out in the plaint
otherwise court will be reluctant to consider any publication to a person not
named in the pleadings.
 Samuel N. Nkaluba v Rev Daudi Kibirigi (1992) 2 ULR 49, as regard
libel, in all suits for libel, the actual words, complained of should be set out
in the plaint.

 Where the cause of action is founded on a Statute; it is a requirement that

the statute be pleaded; Ali Mustafa Vs Sango Bus Co.: The plaintiff sued
the defendant for damages arising from the death of his brother allegedly
knocked dead. Counsel for the defendant objected on ground that the plaint
disclosed no cause of action as no statute was referred to [the Law Reform
Miscellaneous Provisions Act]. As a statutory claim the relevant statute is
a material fact. Held: That O7 r 11(a) requires a plaint to be rejected where
it did not disclose a cause of action. Fatal accident claims could only be
brought or based upon the Law Reform (Miscellaneous Provisions) Act and if
the act was not pleaded, the plaint disclosed no cause of action.

 Where the plaintiff relies on particular documents for his cause of action,
the statement of claim must allege the nature of deeds and documents upon
which he relies in deciding his title; Phillips Vs Phillips and Others
(1878) 4 QB 127: In an action for recovery of land on which the plaintiff
has never been in possession, the statement of claim must allege the nature
of deeds and documents upon which he relies in deciding his title and a
general statement that by a party which documents and crown grants in the
possession of the defendants without further describing them that the
plaintiff is entitled to the land is embarrassing and liable to be struck out in
accordance with the rules.

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 Even if a party may seem to have a cause of action, this does not mean that
he or she will automatically win the case. There are other factors which
must be considered but establishing a cause of action is the first step in
going to court.

 Facts constituting a cause of action and when it arose. Daniel Sempa

Mbabali Vs. W.K. Kizza and 4 Others (1985) HCB 46; the plaintiff sued
the Defendants for repossession of his land. In a WSD the 1 st Defendant
stated that the plaintiff had not shown a clear cause of action in the plaint
and therefore the plaint was bad in law. Held: That if a plaint shows that
the plaintiff enjoyed a right, that right has been violated and that the
defendant is liable, then a cause of action has been disclosed. The Plaint
alleged that the plaintiff was entitled to the land in dispute and the
defendants had improperly registered it in their names. This was sufficient
to show that he had a right in the property that had been violated by the
defendants and thus established a cause of action and hence the plaint was
not bad in law.

 That if a plaint shows that the plaintiff enjoyed a right that has been
violated and that the defendant is liable then a cause of action has been
disclosed. Auto Garage and Others Vs Motokov [1971 EA 514

 If plaint shows that the plaintiff enjoyed a right and the right has been
violated the defendant and the defendant is thus liable, a cause of action
will have been shown. Otherwise if any of these essentials are missing; there
is no cause of action. Lake Motors Vs Overseas Motor Transport cited
Kebirungi Justine v Road Tainers Ltd & Ors [2008 ] HCB 72 CA

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 Where a plaint discloses a cause of action but is deficient in particulars, the
plaint can be amended so as to include the particulars e.g. negligence.
Tororo cement Co. ltd v Frokina International Ltd SCCA No. 2/2001.

 A cause of action means every fact which if traversed, would be necessary

for the plaintiff to prove in order to support his right to a judgment of the
court. It is a bundle of facts which taken together with the law applicable to
them gives the plaintiff a right to relief against the defendant. Alhajji
Nasser Ntege Ssebaggala vs. the E.C and KCC Constitutional Petition
No. 1/99

 In deciding whether a suit discloses a cause of action, one looks ordinarily

only at the plaint assuming that the facts alleged therein are true. Serapio
Rukundo V AG Constitutional Case No. 3/92.

 A cause of action means every fact, which if traversed would be necessary

for the plaintiff to prove in order to support his right to a judgment in court
and is said to be disclosed if three essential elements are pleaded and these
include the existence of the plaintiff’s rights, the violation of the right and
the defendant’s liability for that violation. Baku Raphael & Anor vs. AG
constitutional app. No 1/2003.

 A suit does not disclose a cause of action if it does not show which civil right
the plaintiff is entitled to that was breached by the defendant. The plaint
should set out the rights of the plaintiff that were violated by the defendant
and the plaintiff suffered loss as a result thereof which relief is sought from
this court. GW Wenendeya vs. stanbic Ltd HCT-00-CC-CS-0486 – 2005;

 The position of the law is that the cause of action remains alive until the
prescribed time for filing such action has lapsed Idah Lteruha vs Ismail
Muguta CACA No. 22/2002

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 A cause of action has been considered in the case of Daniel Sempa
Mbabali vs W.K Kidza and 4 others (1985) HCB 46 the court stated: if
the plaint shows that the plaintiff enjoyed a right, that right has been
violated and that the Defendant is liable then a cause of action has been
disclosed.

 In the case of Micro Finance Support Centre Ltd versus Uganda Micro
Entrepreneurs Association Ltd HCT -00-CC-CS-1007-2004, justice
Bamwine Said: Halsbury’s Laws of England, Vol.1 at P.6 defines a
“cause of action” as “that particular act on the part of the defendant which
gives the plaintiff his cause of complaint.” it is, so to say the fact or
combination of facts which give s a person the right to judicial redress or
relief against another. The relational is that where there is a right recognized
by law, there also exists a corresponding remedy for its violation. Thus 0.6
r1 of the Civil Procedure Rules requires all pleadings generally to contain a
brief statement of the material facts on which he party pleading relies for
claim or defence. And under 0.7r1 (e), it is mandatory that a plaint contains
the facts constituting the cause of action and when it arose. The
consequences of a plaint which discloses no cause of action are grave: it
must be rejected by the court. It is as serious as that. Therefore, before
rejecting a plaint for non- disclosure of a cause of action, the court must be
duly satisfied that the case as presented to it is un maintainable and
unarguable. Court held that it is settled law that where a plaint fails to
disclose a cause of action, then it is not a plaint at all. It is considered a
nullity which cannot even be amended. It was so held in Auto Garage &Anor
–Vs- Motokov (No. 3) [1971] EA 514 . The element of a right enjoyed by the
plaintiff is lacking in this case in its current form. And if any of the elements
of a cause of action, such as a right enjoyed by the plaintiff which has been

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 violated, is lacking, the plaint is a nullity, and no amount of talking can
save it, even if a decision were to be post poned on it to a later date.

 The question whether a plaint discloses a cause of action must be

determined upon perusal of the plaint alone, together with anything
attached so as to form part of it, and upon the assumption that any express
or implied allegations of fact in it are true. Sheriff & Co. – vs – Chotai
Fancy Stores [1960] EA 374,: Kebirungi Justine v Road Tainers Ltd &
Ors [2008 ] HCB 72 CA

 There are three essential elements to support a cause of action in a plaint

Viz; a plaintiff enjoyed, the right has been violated and the defendant is
liable.

 It is settled law that the question whether or not a plaint discloses a cause
of action must be determined upon perusal of the plaint alone, together with
anything attached as to form part of it.; Jeraj Shariff & Co. Vs Chotai
Fancy Stores [1960] EA at 375 Mikidadi Kawesa-V-A-G (1973) I ULR
1221 ;( 1973) HCB 115

 Hamis Vs National Bank of India: That in deciding whether the plaint

disclosed a cause of action or nor the court had to confine itself to the plaint
assuming that what was alleged therein was true.

 Annexing a document to a pleading has the effect of incorporating the

contents of the document in the pleadings; Non- Performing Assets
Recovery Trust V Kapeeka Coffee Works Ltd SCCA No. 8 of 2001

 Where a plaint discloses a cause of action founded on an illegality, such is un

maintainable and should be struck out. John Buteraba vs Edrisa Serwanga
HCC No. 222/2008-

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 In a cause of action founded on vicarious liability, it must be alleged that the
tort feasors were servants of the defendant in the course of their employment;
Bamuwayire Vs Attorney General (1973) HCB 87 This was an application by
the defendant to have the suit rejected on ground that in filing to allege that
the servants who arrested the plaintiff were acting as servants of the defendant
in an action for false imprisonment. Held: That the court had to look only at
the plant in deciding whether it disclosed the cause of action against the
defendant was not under any obligation to ask for further and better
particulars. The Plaint did not disclose any cause of action as it did not allege
the person who arrested the Plaintiff were servants of the defendant and that
the said servants were acting in the course of their employment.

 Clementina Nayndori V E.A Railways: The defendant in his WSD contended

that the plaint did not disclose a cause of action. The plaint alleged the
mischief of the defendant’s servants but did not disclose that the servants were
in the course of their employment. Held: That in failing to show that the
defendant’s servants were acting in the scope of authority the plaint failed to
disclose the cause of action.

 Mubiru Vs Byensiba: A plaint will be struck out if it omits to show that the
defendant was working in the course of his employment. Wycliff Kigundu V
AG [1993] V KALR 80 SC Read also ; Bamuwayire-V-A-G.(1973) HCB 87

 However, the above position should be contrasted with the decision in

Brigadier Smith Opon Acak V AG [1997] 111 KALR 69, that it is sufficient if
the plaint indicates that they were servants of the defendants.

 Relief, which the Plaintiff Claims.

 Every plaint shall state specifically the relief which a plaint retains either
simply on the alternative and it shall not be necessary to ask for general or
other reliefs which court may deem fit.-O7 r 7 CPR. This rule shall apply to the
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 defendant in his WSD if a definite sum of money is counter-claimed. Read;
Kasule V Makerere University [1975] HCB 376

 Vallabhudas & Sons Ltd & Mawangala Estate vs. Mateeka [2001 – 2005]
HCB Vol. 2 68. The law is that special damages must be specifically pleaded
and strictly proved. Read Shah V Mohamed Abdulla [1962] EA 76; on
whether it is mandatory to have a special heading “special damages”.

 Take me Home Vs Apollo Construction: Counsel for the Plaintiff asked court
to award damages for breach of contract but this was not specifically pleaded
in the plaint and he therefore asked court to make an award under the
umbrella of any other suitable relief. Held: That in regard to the prayer for any
other suitable relief or further and other relief that advocates seem to make a
practice of adding in their plaints it has no meaning and does not add anything
to what is claimed nor could be used as generally inclusive come up and make
shift so as to avoid the penalties of sloppy inadequate and incompetent drafting
of pleadings.

 Kisige V BS Uzakami Batolawo: The Plaintiff sued the defendant for

wrongful amount but never included any claim in the plaint. The plaint was
not amended by his advocate to accommodate such a claim and counsel
sought to rely on paragraph (d) urging court to exercise its powers and award
any other/further incidental relief. Held: That if general damages are to be
awarded to the plaintiff the plaintiff must plead and prove them. Mere insertion
at the end of the plaint of an omnibus clause cannot assist the plaintiff to
recover any damages, special or general. This is so because even when general
and special damages are prayed still the said omnibus prayer always appears,
thus it cannot afford his client any reliefs. However the mansion was technical

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 and the plaintiff being a semi illiterate and layman, it was understandable and
damages will be awarded.

 The allegations set out in a plaint must support the prayers asked for in the
plaint and the prayers themselves must be legally justified. See HCT-05-CV-
MA-0072 of 2000 Augustine Tibahurira & others vs. IBAKA Group CFI
LTD AT Page 9. Also, Departed Asians Property Custodian Baord vs. Issa
Bukenya t/a New Mars War House 1994-95 HCB 60.

 Rejection of a plaint and Striking out of pleadings

 See Order 7 r. 11 for the grounds for rejection of a plaint and O.6 r.30 on the
grounds for striking out a pleading; Read; Baku Raphael Obudra & Anor. V
AG Constitutional Appeal No. 1/03 Kanyeihamba JSC; alluded to an
exception to the general rule that upon an application to strike out a plaint for
not disclosing a cause of action, the court ought to restrict its ruling on the
defect of the plaint and not to decide on the merits of the case. The exception is
where the court is satisfied that “the cause of action” disclosed is clearly not
maintainable in law. [See the dicta in Nurdin Ali Dewji & others vs. G.M.M.
Megriji & others (1953) 20 EACA 132, and in Ismail Serugo’s case.

 Question of whether a plaint does or doesn’t disclose a cause of action is a

matter of law which can be raised by the defendant as a preliminary point at
the commencement of the hearing of the action even if the point had not been
pleaded in the written statement of defence [see O.7 r11CPR; Tororo Cement
Co. Ltd v Frokina international Ltd SCCA No. 2/2001.

 Mick Daddy Kaweesa Vs Attorney General (1973 1ULR 122) ; the defendant
applied to have the plaint struck out/rejected under O.7 r11 on ground that it
did not disclose any cause of action. Held: That when deciding whether a

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 plaint disclosed a cause of action or not the court has to counteract itself with
the plaint assuming what was contained was true.

 NB: Plaint must allege all facts necessary to establish a cause of action. If the
cause of action is disclosed any defect or omission may be put right by
amendment which may be impossible if no cause of action is disclosed. See
Tororo cement Co. Ltd v Frokina international Ltd SCCA No. 2/2001.

 When dealing with preliminary point of objection, it is always important and

useful, to have regard to the procedural law under which they are raised.
Distinction must be made between points of objection as to the form of a
pleading and those as to the substance of the case. It is one thing to object that
a plaint does not disclose a cause of action, and quite another to object that
the claim in the suit is not maintainable in law. That is because the outcome is
different. In the latter category, the court decides on the merits of the case on
basis of law only. The procedural rules applicable to this category are 0.6 r.27
and 28, and 013 r.2 of the civil procedure rules. On the face of it, the point of
objection in the instant case falls in the former category, where , subject to one
exception that I will revert to later in this judgment, the court decides on only
the fate of the impugned pleading, without going into the merits of the case .
The relevant procedural law of that category is 0.6 r. 29 and 0.7 r.11 CPR.
Baku Raphael Obudra & Anor. V AG Constitutional Appeal No. 1/03
Kanyeihamba JSC;

 An application to strike out pleadings need not need a formal application, a

court will use its inherent powers to strike out a plaint or WSD where the
defect is apparent on the face of the record and where no amount of
amendment will cure the defect. The procedure is intended to stop proceedings
which should not have been brought to court into 1 st place and to protect the
parties from continuance of futile and useless proceedings; Kayondo v AG
(1988-90) HCB 127
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 Striking out a pleading for want of disclosure of a reasonable cause of action or
reasonable defence or on ground of being frivolous and vexatious; Order 6 r. 30

 The term “reasonable cause of action has been defined by Lord Pearson in
Drummond Jackson versus British Medical Association & others [ 1970]
IWLR 688 at page 606 to mean “ a cause of action with some chance of
successes, when ( as required by paragraph 2 of the rule ) only the allegations
in the pleading are considered”.

 Frivolous and vexations proceedings are proceedings brought with no

reasonable prospect of success, and with no useful or serious purpose but to
annoy the other party. See oxford dictionary of law 6th Edition at page
564

 That the summary jurisdiction of the court to strike out pleadings was never
intended to be exercised by a minute and protracted examination of documents
and the facts of the case … to do that is to usurp the position of the trial judge,
ad to produce a trial of the case in chambers, on affidavits only, without
discovery and without oral evidence tested by cross examination in the
ordinary way See also Norman vs. Mathews 1916 85 L.J. K.B 857. Read
Tikani V Motui [2002] SBHC 10;HC-CC-029/2001 on the meaning of frivolous
and vexatious suits

 Where a plaint is rejected, it does not preclude the plaintiff in presenting a

fresh plaint in respect of the same action. What is suffered is cost or limitation.

 THE DEFENCE:
 S. 20 CPA: Once a suit has been instituted, the defendant has to appear and
answer the claim (O.5 r 3). See different modes of responding to summons;

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 vide; filing a defence, an application for leave to appear and defend, an
affidavit in reply all depending on the type of summons.

 Written Statement of Defence is a formal document in which a defendant in

numbered paragraphs denies or admits the allegations in the plaint and
asserts the defence to the claim. The function of defence is to state the
grounds and the material facts on which the defendant relies. It is to inform
the plaintiff and court what the defendant admit of the plaintiff’s claim and
what he denies and what grounds or fact the defendant relies on to answer
the plaintiff’s claim. The defendant is obliged to deal with each allegation of
fact and expressly admit it or deny it, traverse it or admit it with qualification.
 The function of a WSD is to state the grounds and material facts on which the
defendant relies for his defence. O. 8 r1 (a).
 Filing of a defence:
 Order 8 r 1: A defendant may, if so required by court at a time of the issued
of summons or any time thereafter as prescribed by court file a defence
within 15 days unless otherwise ordered by court. See Mark Graves V
Balton (U) HCMA No.158 of 2008 for time within which a defence should be
filed; See also Rule 11 of the Government Proceedings (Civil Procedure)
Rules .; AG is given 30 days within which to file a defence.
 How is a defence filed

 O.9 r1: This is done by delivery of a written statement of defence dated on

the day it is filed, stating the name of the defendant if he is to appear in
person or his advocate and the address of service. The defendant shall file
and sent it, showing the date and return it to the person filing it and the
defence shall be served onto the plaintiff. See copy of the defence.

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 Read Order 8 r.19 on Dismissal of suit where summons unserved and
plaintiff fails for a year to apply for fresh summons.; Read Nile Breweries
Ltd V Bruno Ozunga T/A Nebbi Boss Stores HCT-00-CC-CS-0580-2006
 Extension of time to file a defence;

 Extension of time may be when parties have consented or where the party
has applied to court. [see s.96 CPA] Godfrey Magezi & Brain Mbazira V
Sudhir Rupaleria SCCAPP 10/2002. Applicant sought extension of time
within which to file an appeal out of time to appeal against the decision of
the Court of appeal. Held; that court has jurisdiction to extend for the doing
of an act so authorised or required. The omission, mistake or inadvertence
of counsel ought not to be visited on the litigant leading to striking out his
appeal thereby denying him justice. Even if the legal advisor’s actions have
been negligent, an extension of time has been accepted.

 On what amounts to sufficient cause to warrant extension of time to file a

defence; Read; Robert Opio & Anor V Edward Kabugo Sentongo HCMA
No.166-2002

 Read also; Mable Mulumbav Hanna Semakula 1993] IV KALR 84- On

the question of the grounds for grant of leave to file a written statement of
defence out of time. See also; AG V APKM Lutaaya SCC Appl No. 12 of
2007

 That the legal effect of extending time to file an appeal out of

time[applicable to a defence] when the appeal [or defence] had already
been filed (out of time) is to validate that appeal or to excuse the late filing of
that appeal. See also Credit Finance Co Ltd V Makerere Properties SCC
Appl No.1 of 2001.

 Object of Defence, O.5r 1 (a); The object of a defence is to inform the

plaintiff and court of what the defendant admits and denies in the plaintiff’s
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 claim and what grounds of facts the defendant relies on to answer the
plaintiff’s claim.

 Mode of defence: the defendant is obliged to deal with every allegation of

fact and expressly admit or deny it. General denials may not suffice; Joshi V
Uganda Sugar Factory Limited [1968] EA 570; Ben Byabashaija &
Anor. V AG [1992] 1 KALR 161; Chukwuma f. Obidegwu V Daniel B
Semakadde [1992] 11 KALR 64

 Specific denial: Order 8 r3 provides that every allegation of fact in the

plaint, if not denied specifically or by necessary implication or stated to be
not admitted in the pleading of the opposite party shall be taken to be
admitted except as against a person with a disability provided that the court
may in its discretion require any facts so admitted to be proved otherwise by
such admissions. Melista Meyasi Vs National Bank of Commerce: Held:
That by order 8 r 8 CPR [TZ] each allegation of fat in the plaint which is not
admitted must be specifically dealt with in the defence. A general denial is
not sufficient.

 Nature of a Written Statement of Defence

 The defendant must respond to all allegations of fact and law:

 Under O 8 r 3 CPR all denials must be specific. A party who intends to

contest the case has to deal with the opponent’s pleadings and that may be
done by-

a) Denial of the whole or essential part of the averments of facts contained

in the pleadings. This is called traversing.
b) He may say that its half truth and include facts that gives the case a
different complexion. This is called confession and avoidance , saying
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 that its true but not entire truth and going on to allege facts which
destroy the effects of the allegation{confession and avoidance}.
c) He may take a point of law e.g limitation or res judicata See Tororo
cement Co. Ltd v Frokina international Ltd SCCA No. 2/2001.
d) By admission in which case its case will be complete. Makerere
University V Rajab Kagoro [2008] HCB 103on what amounts to an
admission

 Denials must be specific or otherwise may be deemed to have been

admitted.

 The Effect of Failure to File a Defence

 This depends on the nature of the suit and the subject matter as well as the
defendant in question. Generally, a defendant who fails to file a defence
within the time limited by law is deemed to have excluded themselves from
the proceedings in court. See Order 9r.6, 8 and 11 CPRs on default,
interlocutory and ex parte judgements arising out of default of filing
a defence; Dembe Trading Enterprises Ltd V Uganda Confidential Ltd
and Anor. HCT-00-CC-CS-0612-2006

 The Defendant will have excluded himself from proceedings unless he

applies to show cause as to why he did not file the defence within the time
allowed. Mark Graves V Balton (U) HCMA No.158 of 2008; Bukenya Vs
Attorney General (Supra). Twiga Chemical Industries Ltd V Viola
Bamusedde CACA No. 9/2002; Silas Bitaitana V Emmanuel Kananura
CACA No.47/1976; AG & UCB V Westmont Land (Asia) Bhd & Othrs.
[1997-2000] UCLR 191

 See exception where the Attorney General is the defendant Read; Agasa
Maingi v AG HCS No. 95/2002 on the procedure before a default
judgement is entered against government.
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 Sebunya Vs Attorney General [The Plaintiff sued the Attorney general who
failed to file a WSD within the statutory period and was represented at the
hearing. A state attorney appeared for the defendant. Held: A defendant
who files no defence could not be heard. The state attorney as in the instant
case even if he had appeared in time would have had no locus standi and
could not be heard Held: Further; the court has discretion to allow the
defendant who has not filed a defence to be heard but in the circumstances
the discretion would not have been exercised in favour of the applicant. Sir
William Duffus on O.9 r10 is silent on the procedure to be followed when
the Applicant fails to file a defence. The procedure is different when a
defendant fails to enter appearance in that case the action is set down for
hearing exparte, no notice is served on the defendant but provisions is made
by r. 18 of that order that a defendant does not appear and desires to put in
the proceedings then the court is given a wide discretion and has powers to
allow a defendant to take put in the proceedings even though this would no
doubt be on terms to that the applicant would not suffer through the
defendant’s default. But also given a definite and gratuitous advantage to
the defendant the guilty party. Since decision would have been contrary to
the elementary principles that a defendant must if ordered disclose his
defence by trial; O.VII r1 and be bound by his pleadings, O.VI r 3. See S.
96 on extension of time to file a defence; AG & UCB V Westmont Land
(Asia) Bhd & Others [1997-2001] UCLR 191

 Admission of Liability; Elizabeth Imagara and 20rs v AG 1995) IV

KALRS The effect of failure to file a defence whether it constitutes
admission of liability.

 Cleaves Hams Ltd Vs British Totutorial College (Africa) Ltd:; Held by

Hamis: That failure to file a defence operates as an admission of all
allegations in the plaint except as to damages. See Order 9r. 8 CPR B

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  Badruidin and another VS Pyarali: Held: Judgment may be given against
a defendant who fails to file a defence. See Order 9r.6 CPR Hajji Asuman
Mutekanga V Equator Growers (U) Ltd SCCA No. 1995

 Where the defendant admits liability in his WSD, the proper remedy for the
plaintiff is not to apply for the defence to be struck out but to proceed under
order 13 r.6 which empowers a trial court to inter alia enter judgement
against the defendant who admits liability in his defence; Francis Sebuya
V Allports Services (U) Ltd SCCA No. 6/1999

 The rule that parties are bound by their pleadings applies to defences; only
matters in the WSD are to be considered. Inter freight Forwarders (U) LTD v
EADB SCCA No.13/1993

 In the case of Peter Bakaluba Mukasa Versus Betty Nambooze SCCA

No.4/2009 Justice Katureebe JSC cited the statement of Order, JSC, (RIP) in
the case of Interfreight Forwarders Case quoted Wambuzi CJ (as then he was)
citing the case of SEGAMULL vs. GALSTAUN (1930) AIR PC 205, when an issue
was framed but certain particulars had not been pleaded. He said, at page 129;-
‘‘It is true that in SEGAMULL vs. GALSTAUN (1930) AIR PC 205, a case in which
the variation of an agreement was not pleaded, but was nevertheless put in
issue, contested and proved by the privy council said;

‘’Their lordships are satisfied that notwithstanding the form of the plaint the suit
was fought by the parties deliberately upon issues substantially as framed by the
trial judge and ought upon that footing to be determined.’’

The judge held that the appellant ought to have shown that either the
respondent had departed from her pleadings or that he, the appellant, had not
known the case that he had to answer. The Judge cited Order JSC (RIP) in

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UGANDA BREWERIES LTD vs. UGANDA RAILWAYS CORPORATION
[2002[ E.A 634, elaborated the issue of departure from pleadings and what the
test is in determining whether a complaint should be allowed to succeed, he put
it thus at page 643:

‘‘To my mind, the question for decision underground 2(i) of the appeal appears to
be whether the party complaining had a affair notice of the case he had to meet,
whether the departure from the pleadings caused a failure of justice to the party
complaining; or whether the departure was a mere irregularity, not fatal to the
case of the respondent, whose evidence departed from its pleadings.’’ That the
learned judge went on to reiterate the principle he had set out in his judgment in
the Interfreight Forwarders Case and continued thus:

’’ In GANDY vs. CASPAR AIR CHARTER LIMITED, Sir Ronald Sinchar said;-

‘The object of pleadings is of course to ensure that both parties know what are the
points in issue between them, so that each may have full information of the case
he has to meet and prepare his evidence to support his own case or to meet that of
his opponent.’’

The Judge further stated that the Uganda Breweries Ltd case established that
even where there is irregularity in pleadings or departure from pleadings, but as
long as the opposite party has a fair notice of the case he has to answer and he
does answer it and adduces evidence accordingly, and has not suffered injustice,
the court will not allow such irregularity or departure to frustrate the
determination of the case. That bearing the principle involved under the concept
of fair hearing and trial, given that the appellant did have fair notice of the case
which he duly respondent to, he was unable to find that the irregularity of not
putting the particulars of bribery in the body of the respondent’s affidavit unduly
prejudiced the appellant in any way. That the court must also bear in mind the
direction of Article 126(2) (e) of the constitution that subject to the law,

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 substantive justice must be administered without undue regard to technicalities.
That in the peculiar circumstances of the case, it would defeat justice to hold
that had gone through a full trial be defeated by a technicality particularly when
the appellant did not raise that technicality before, and there is no evidence that
he suffered any prejudice.

 Where a Written Statement of Defence doesn’t disclose a reasonable defence, it

may be struck out; Libyan Arab Bank Vs Entrap Co. Ltd. This was an
application under O.48 r 1 CPR for an order to strike out the defence and enter
judgment for the applicant on grounds that the defence disclosed no reasonable
or any answer to the claim and that it was frivolous and vexatious and filed
merely to obstruct or delay justice. At the hearing counsel for the defendant
produced two letters referred to as an affidavit but not appended thereto and
sought to rely on them. Held: That it is well established that in considering
applications under O.6 r 29 the court has to look at pleadings alone and any
annextures thereto and not any subsequent affidavits. The affidavits of counsel
and two letters were inadmissible for the purpose of considering the said order.
On Mode of Defence: Held: That in its written statement of defence it was clear
that the defendant denied being indebted to the plaintiff in a manner alleged by
the plaintiff in the plaint. This was perfectly proper answer against the plaintiff’s
claim which raised triable issues of fact and law fit for trial by this court.

 The distinction given to court under O.6 r.30 to strike out pleadings should
only be exercised in plain and obvious cases since such applications were not
intended to apply to any proceedings which raised a serious question of law. The
WSD raised a reasonable defence to the plaintiff’s claim and was neither
frivolous nor vexatious and an abuse of the process of court. Nile Bank ltd v
Thomas Kato & others [1997 – 2001] UCLR 325

 Where a Written Statement of Defence relies on fraud or misrepresentation, the

particulars will have to be pleaded.
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  A defence with a Counter claim

 A Counterclaim is substantially a cross action and not a mere defence. Every

cross action can not be pleaded on a counterclaim provided that it is of such a
case not as can be tried more conveniently by some other tribunal. In a
counterclaim the defendant claims that he is entitled to relief or a remedy as
against the plaintiff. O8 r2. a defendant may in an action set off or set up by
way of counterclaim against the claim of the plaintiff.

 O.8 r 7 and 8 [Specific counter claim and title to a counter claim ]: When any
defendant seeks to rely upon any ground as supporting a right of counter claim
he shall in his statement of defence state specifically that he does so by way of
counterclaim. Read Nile Breweries V Bruno Ozunga T/A Nebbi Boss Stores
HCT-00-CC-CS 0580-2006 on the nature, title and consequences of a counter
claim Geoffrey Ouma V Kaledonia Karuragire HCCS No. 418 of 2000

 In the case of Nampela Trading vs. Yusuf Semwanja [1973 ULR 69, the Court
observed that 08 r 8 CPR provides that where a defendant in his defense sets
up a counter claim which raises question between himself and the plaintiff
together with any other person then shall add the title of his defense a further
title similar to the title of the plaint setting forth the name of all persons who if
such counter claim was to be enforced by all action would be defended to such
cross action and shall deliver to the court his defense or service on such of
them as parties to action together with his defense for service on the plaintiff
within a period required to file a defense. The court observed that where any
such person is not a party to the suit he shall be summoned to appear by being
served with a copy of the defence which shall be served with rules regulating
service of summons and that person not already a party who is served with the
defense and counter claim must appear thereto as if he had been served with
summons in the suit and that person summoned must give a reply within 15
days if he wishes to take part in proceedings.
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 NB: A counter claim must have a cause of action and must specify the relief
sought from court; Fernande Vs Peoples Newspaper Ltd Held; that since
contributory negligence has not been pleaded, the court should not have
considered and awarded the damages.

 Separation of counter-claim: O.8 r 2: Court may on application of the plaintiff

order separate trial in case the counter-claim will no be conveniently disposed
in the pending action. Uganda Wholesalers Vs Impex House Ltd: The Plaintiff
(Respondent) claimed some money as the price of goods sold and delivered to
the defendant (Applicant). The defendant put forward a counter-claim against
the plaintiff in two parts. The Magistrate under .8 r 2 refused to decide on the
matter and stated that the counter-claim be tried separately. The plaintiff had
not applied for such separate trial of the counter-claim. Held: O.8 r 2 only gave
the court discretion to order separate trial of a counter-claim when application
had been made for such. The plaintiff did not wish the counter-claim to be
tried separately and the magistrate would be directed to adjudicate upon the
counter-claim.

 Reply to a WSD

 Where a defence is made with or without a counter claim and it raises new
issues, the plaintiff / defendant to the counter claim may make reply to the
defence; Order 8 r.18 of the CPR; In the case of Katuramu V AG (1986)
HCB 39 Held; that although a plaint doesn’t include a reply by the plaintiff,
nevertheless a reply forms part and parcel of his case; where a reply is filed in
answer to the defence, it must be considered together with the plaint with the
result that it may supplement or cure any deficiency in the plaint

 AMENDMENT OF PLEADINGS

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 The wide and extensive powers of amendment vested in courts are designed to
prevent failure of justice due to procedural errors, mistakes and defects and
serve the aims of justice. A party having filed pleadings may develop change of
heart, new facts may come to light, may discover that he made a mistake or
omitted some material facts in his pleadings. The rules of procedure allow a
party to correct any error or cure any defect or include any omission through
amendment of pleadings. This involves alterations or change of pleadings, add
new facts or other wordings.

 The object of amendment of pleadings is to enable the parties alter their

pleadings so as to ensure that the litigation between them is conducted, not on
the false hypothesis of facts already pleaded or relief or remedy already claimed
but rather on the basis of true state of facts or true relief or remedy which the
parties really and finally intend to rely on or to claim.

 Order 6 rules 19, 20 and 21,22, 23, 24,25 CPR contain the relevant laws.

O 6 r 19 CPR provides that the court may, at any stage of the proceedings,
allow either party to alter or amend his or her pleadings in such manner and
on such terms as may be just, and all such amendments shall be made as may
be necessary for the purpose of determining the real questions in controversy
between the parties. These amendments help to cure incompetence, negligence
or carelessness in drafting pleadings.

 Amendments without leave of court

 Under O 6 r 20 CPR A plaintiff may, without leave, amend his or her plaint
once at any time within twenty-one days from the date of issue of the
summons to the defendant or, where a written statement of defense is filed,
then within fourteen days from the filing of the written statement of defense
or the last of such written statements. When he does so, he must serve the
amended pleading on the opposite party. The right extends to plaint, written

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 statement of defense, counterclaim, defense to counter claim and reply. It
can only be exercised only once and only before close of pleadings. Under O
6 r 21 CPR, a defendant who has set up any counterclaim or setoff may
without leave amend the counterclaim or set off at any time within twenty-
eight days of the filing of the counterclaim or setoff, or, where the plaintiff
files a written statement in reply to the counterclaim or set off, then within
fourteen days from the filing of the written statement in reply.
 A pleading can be amended to add or change some facts once before the
close of the pleadings without the leave of court being needed. A party seeks
leave of court after close of the pleadings under O.8 r 18. The amended
pleading must be re printed and the superseding words must be underlined.
Where leave is needed an application must be made in court and the
heading of the pleading must indicate the amendment.
 Badru Salongo vs. Kasese Town Council [1992-93] HCB 159, In this case
court found that under O 6 r 19 (now r 20) a plaintiff may amend his plaint
once without leave of court at any time within 21 days from the date
specified in the summons or were a written statement of defence is filed
then within 14 days from the date of filing the defence. The court observed
that amendment in pleadings sought before hearing of the suit should be
freely allowed if can be done without causing injustice to the opposite party
or without prejudice its rights existing at the date of amendment.
 Kasolo vs. Nile Bus Co. [1979] HCB 282 In that case court found that
although O 6 r 18 empowered the court to allow any party to alter or amend
the pleading at any stage of the proceedings, this must be within or during
the period within which pleadings must be completed and not during
hearing. That pleading must be complete before suit is set for hearing. For
amendment of pleadings during hearing then the suit might never come to
an end.
 Amendment by Consent.

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The time for delivering, amending or filing any pleading, answer or other
document may be enlarged by consent in writing of the parties or their
advocates without application to court-O.51 r 7 CPR.

 Right to amend is reciprocal.

 Where an amendment is served on the defendant, he may if he has already
served a defence, amend his defence. Where an amended defense is served
on the plaintiff, he may if he has already served a reply, amend his reply.
O.6 r 24 CPR.
 The leave of Court
 The Court has wide and ample power to allow the amendment of pleadings.
The following principles appear to be recognized as governing the existence
of discretion or allowing amendments. In the case of Gaso Tranpsort
Services (Bus) Limited V Martin Adala Obene SSCA No.4 of 1994, the
Supreme Court held that it is now trite law that courts are more flexible in
allowing amendments whenever an application or amendments were made
promptly at the earliest stage of litigation. That the more advanced the
progress of litigation, the more burden will be upon the applicant to satisfy
court that leave for amendment need to be granted. The court found that a
belated application for amendment places a heavy burden on the applicant
to convince court as to why he did not apply earlier but court generally give
leave to allow amendment rather than give judgment on ignorance of facts
which ought to be known before rights are definitely sighted. The Court
recognized four principles governing the exercise of discretion in allowing
amendments;-
1. That the amendment shouldn’t work injustice to the other side.
That an injury that can be compensated by award of costs is not
treated as an injustice

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 2. Multiplicity of proceedings should be avoided as soon as far as
possible and all amendments, which avoid such multiplicity,
should be allowed
3. An application made malfide must not be granted
4. No amendment allowed where it is expressly or implicitly
prohibited by law (Limitation of Action)
 The rationale behind procedure is in Cooper vs. Smith (1883) 26 CHD 71,
the Court observed that it is a well established principle that the object of
court is to decide the rights of party and not to punish them for mistakes
made in the conduct of their cases by deciding otherwise than in accordance
with their rights. The court knew of no error or mistake if not fraudulent or
intended to over reach which court ought not to correct if it can be done
without injustice to the other side. Courts do not exist for the sake of
discipline but for the case of deciding matters in controversy and doesn’t
regard such amendment as a matter of favor or grace that as soon as it
appears that the way in which a party has framed his case will not lead to a
decision of real matters in controversy it is as such a matter of right on a
party to have it collected if it can be done without injustice.
Pre-Entry Exam 2011/2012
Qn. 42 A defendant was served with summons on 31 st July, 2011, giving
him 15 days to file a defense. He just put the papers in his drawer and
forgot about them. What advice would you give him today?
Pre-Entry Exam 2012/2013
Qn. 42 The Plaintiff sued the defendant for trespass, seeking an eviction
order. The defendant did not file a defense. There is an affidavit of service on
record. What steps should the plaintiff take?
Pre-Entry Exam 2014/2015

Qn. 43 Explain what you understand by amendment of pleadings.

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 Qn. 45. A group of voters have threatened to sue their member of
parliament if she does not seek re-election. What would be the likely defect
in their plaint?

Pre-Entry Exam 2015/2016

Qn. 39. Explain what you understand by pleadings

Pre-Entry Exam 2016/2017

Qn. 3 Why is a party not permitted to depart from his or her pleadings?

Qn. 4 Which of the following documents does not require the signature of the
applicant or counsel to be valid?

A. Notice of Motion
B. Plaint
C. Written Statement of Defense
D. Chamber Summons
E. None of the above.

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TOPIC XII

LIMITATION OF ACTIONS

One of the most important tasks which an advocate needs to undertake in a

suit is to ascertain when the limitation period will expire. It is noteworthy that
court process must be filed within the limitation period. If the court process is
filed out of time, the defendant will have a defense, whether or not will plead
limitation in the defense. Court can also on its own discretion take cognizance
of the fact of limitation.

Nature of limitation

A limitation period is a time limit during which an action may be brought

thereafter a potential plaintiff is barred and may no longer bring his action. The
basic reason for limitation is that the potential defendants should not have to
live with the risk of legal action indefinitely if for one reason or the other the
potential plaintiff does not pursue his remedy and that old actions are difficult
to try when memories are clouded, and evidence has been probably lost.
Statutes of limitation are in their nature strict and inflexible enactments.

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The limitation statutes in Uganda are the Limitation Act Cap. 80 and the Civil
Procedure and Limitation (Miscellaneous Provision) Act Cap 72. They impose a
limit of time upon an existing right of action.

Basic Principles of Limitation

The different limitation periods are prescribed for different causes of action in
the Limitation Act. The determination of when time begins to run depends
upon the date on which the cause of action arises, and is therefore dependent
upon the nature of the cause of action.

Section 3 of the limitation Act provides for six years limitation of actions of
contract and tort and certain other actions. In the case of Mundele Sunday v
Pearl of Africa Travels and Tours CIVIL SUIT NO 89 OF 2011 the issue was
whether the Plaintiff's action was time barred under the Limitation Act cap
80 laws of Uganda having been brought more than five years from the date the
alleged cause of action arose. Court held that under section 3 (1) (a) of the
Limitation Act Cap 80 causes of action founded on contract or tort are not to
be brought after the expiration of six years from the date on which the cause of
action arose. The Limitation Act cap 80 laws of Uganda provides for a limitation
period of six years from the date the cause of action arose in respect of contract
or tort within which to file an action for appropriate remedies. On the other
hand section 3 (d) provides for actions to recover any sum of money by virtue of
any enactment, other than a penalty or forfeiture or sum by way of penalty or
forfeiture. That the Plaintiff filed the action on 18 March 2011less than six
years after the alleged cause of action That the Plaintiff was within the
limitation period prescribed by section 3 (1) (a) of the Limitation Act Cap 80
laws of Uganda. The only applicable provision which is section 3 (1) (d) of the
Limitation Act is the proviso thereto which provides as follows: “except that in
the case of actions for damages for negligence, nuisance or breach of duty
(whether the duty exists by virtue of a contract or of provision made by or
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under an enactment or independently of any such contract or any such
provision) where the damages claimed by the Plaintiff for the negligence,
nuisance or breach of duty consist of or include damages in respect of personal
injuries to any person, this subsection shall have effect as if for the reference to
six years there were substituted a reference to three years.”. That a claim for
damages on a cause of action of negligence, nuisance or breach of duty in
respect of personal injuries to any person are the only instances where the
limitation period is three years from the date the cause of action arose. There is
no action for damages for negligence, nuisance or breach of duty in respect of
personal injuries to any person in this suit and the limitation period for the
Plaintiff's cause of action is six years. That in the premises the Plaintiff's action
is not time barred.

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In the case of Rugamayo Vs Uganda Revenue Authority (LABOUR DISPUTE
NO 27 OF 2014 ) the industrial court stated that it was not in dispute that the
Limitation Act provides for limitation of actions in a sense that one is barred
from filing an action in courts of law after a specific period has elapsed from
the time that the cause of action arose. In the case of causes arising from
contract, the Act provides that such actions must be filed in courts of law
within six years of the accrual of such cause of action. That the legal question
for the court therefore is: Whether the filing of this matter did or did not
offend the provisions of the Limitation Act. Court held that in order to
determine whether a matter is barred by limitation, the court must, first
ascertain when the cause of action arose. That in the present case the status of
the claimant was known to him through the letter of dismissal which he
acknowledged within the time prescribed under the Limitation Act. That the
cause of action arose on the date that the claimant was dismissed or at the
latest the date that he received the said letter of dismissal. That the suit was
definitely filed out of time thus offending the provisions of the Limitation Act.
Court further held that unless the claimant is saved by the exemptions under
the Limitation Act a matter filed outside the prescribed time must be struck
out. That time limits set by statute are not mere technicalities but are of
substantive law and must be strictly complied with and that therefore any
matter filed outside these limits must be struck out irrespective of any merits
in the case.

Section 5 of the limitation Act provides for twelve years limitation of actions to
recover any land. In the case of Hammann Ltd & Anor v Ssali & Anor
MISCELLANEOUS APPLICATION NO. 449 OF 2013 the application was
brought under Order 7 rr.11 (a) (e) and 19 of the Civil Procedure Rules
(CPR) for orders that the Respondents’/Plaintiffs’ plaint in be rejected. The
issue was whether the plaint in H.C. C.S No. 756 of 2006 is time barred. Court
held that Section 5 of Limitation Act which governs the limitation period

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for recovery of land provides as follows; “No action shall be brought by any
person to recover any land after the expiration of twelve years from the date on
which the right of action accrued to him or her or, if it first accrued to some
person through whom he or she claims, to that person.” That It is the established
law that a suit which is barred by statute where the plaintiff has not pleaded
grounds of exemption from limitation in accordance with Order 7 r.6 CPR must
be rejected because in such a suit the court is barred from granting a relief or
remedy.  See: Vincent Rule Opio v. Attorney General [1990 – 1992] KALR 68;
Onesiforo Bamuwayira& 2 Or’s v. Attorney General (1973) HCB 87; John
Oitamong v. Mohammed Olinga [1985] HCB 86. Court further held that Section
25 of the Limitation Act) is to the effect that in actions founded on fraud, the
period of limitation shall not begin to run until the plaintiff has discovered, or
could with reasonable diligence have discovered the fraud. It is also the settled
position that in determining the period of limitation, court looks at the
pleadings only, and no evidence is needed. See: Polyfibre (U) Ltd v. Matovu Paul
& 3 O’rs,(supra); Madhivani International S.A v. Attorney General(supra). Court
further held that the “extension” of the limitation period referred to
under Section 2 of the limitation Act is not a unilateral action by court to extend
the period merely because the action is founded on fraud. No such power,
whether residual or inherent, resides in court to extend time fixed by statute. It
is up to the plaintiff to raise a plea that conforms to the dictates of Section 25of
the limitation Act before he can benefit from exemption from limitation for the
period he was unaware, or could not have with reasonable diligence been
aware of the fraud. It is not that just because a cause of action is founded on
fraud the limitation period will automatically apply. court referred to the case
of Re Application by Mustapha Ramathan, C.A. Civ. Appeal No.25 of 1996, per
Berko JA., that the purpose of limitation is to put an end to litigation. That
statutes of limitations are by their nature strict and inflexible enactments. 
Their overriding purpose is interest republicaeut fins litum, meaning that
litigation shall automatically be stifled after a fixed length of time, irrespective
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of the merits of a particular case. That also in Hilton v.Satton Steam Laundry
[1946] IKB 61 at page 81 it was held that statutes of limitation are not
concerned with merits. Once the axe falls, it falls, and a defendant who is
fortunate enough to have acquired the benefit of the statute of limitation is
entitled, of course, to insist on his strict rights.  The effect of a suit being time
barred is that it shall be rejected. See: Vincent Rule Opio v. Attorney General,
Onesiforo Bamuwayira& 2 Or’s v. Attorney General; John Oitamong v.
Mohammed Olinga .

Cause of action

A cause of action is the basic concept determining a limitation period. Action is

defined to include any proceeding in a court-S.2 of the Limitation Act.

For a cause of action to arise for limitation purposes there must be a

competent parties that is there must be a plaintiff who can succeed and a
defendant against whom he can succeed if he established his case. Until this
situation occurs no cause of action can arise. Time cannot run where the
potential defendant is dissolved.

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In the case of M&D Timber Merchant and Transporters Ltd v Hwan Sung
Ltd (MISCELLANEOUS APPLICATION NO. 0796 OF 2015) the issue was
whether the HCT-CS-409-2013 is time barred by statute. Court held that
the issue specifically and directly relates to the time when the cause of
actio arose. This position is premised on the principle which was
enunciated in  F.X Miramago vs. Attorney General [1979] HCB 24 that the
period of limitation begins to run as against a plaintiff from the time
the cause of action accrued until when the suit is actually filed. Once a
cause of action has accrued, for as long as there is capacity to sue, time
begins to run as against the plaintiff. Furthermore,  Order 7 r.6 CPR  also
requires that;“Where a suit is instituted after the expiration of the period
prescribed by the law of limitation, the plaint shall show the grounds upon which
the exemption from that law is claimed.” The above provisions were
considered by the Court of Appeal in  Uganda Railways Corporation vs.
Ekwaru D.O & 5104 O’rs CACA No.185 of 2007 [2008] HCB 61, in which it
was held that if a suit is brought after the expiration of the period of
limitation, and no grounds of exemption are shown in the plaint, the
plaint must be rejected. The rationale of the law of limitation was aptly
stated in Caltex Oil (U) Ltd vs. Attorney General, HCCS No. 350 of 2005 that
the intention for the enactment of statutory periods of limitation was to
serve several aims among which is protecting the defendant from being
vexed by stale claims, and that it designed to encourage litigants to
initiate proceedings within reasonable time. That for a plaintiff to
benefit from the exemption from the law of limitation, he or she must
plead grounds showing his or her disability to file the suit within the
time prescribed by the law. The disability must be a legal disability in a
sense that Section 1(3) of the Limitation Act provides that a person shall be
deemed to be under a disability while he or she is an infant or of
unsound mind. In my view, since the provision is very clear and specific,
no other basis of disability calls for recognition under the law.
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Order 11 (d) of the civil procedure rules a plaint shall be rejected where the
suit appears from the statement in the plaint to be barred by any law.

In the case of Okweng Washington vs. AG & Mike Okello HCCS No. 16 of
2004, court relied on Onesifolo Bawayira& 2 O’rs vs. Attorney General
(1973) HCB 87, it was held that; “In considering whether or not a plaint is time
barred or discloses no cause of action, the court must look only at the plaint and
nothing else.” The court went on to hold that; “A plaint that is deficient in that it
shows that the action is time barred or discloses no cause of action must be
rejected. See: Pearl Motors Limited vs. Uganda Commercial Bank (1998) III KARL
1. It is a prerequisite of a party who seeks to have substantial justice done to
him or her that that party substantially complies with the law, more so where
that law is written law.”

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In the case of Mundele Sunday v Pearl of Africa Travels and Tours CIVIL
SUIT NO 89 OF 2011 Court held that the question whether a suit is barred by
limitation can be considered by a perusal of the plaint only. This is consistent
with Order 7 rule 11 (d) of the Civil Procedure Rules which provide that the
plaint shall be rejected where the suit appears from the statement in the
plaint to be barred by any law. In other words it must appear from the
statement in the plaint to be barred by any law. The holding in Iga versus
Makerere University [1972] EA at page 65 is that of the East African Court of
Appeal sitting at Kampala. Mustafa J.A. at page 66 of the Judgment
considered Order 7 rule 11 (d) of the Civil Procedure Rules and held that a
plaint which is barred by limitation is a plaint, in the words of that sub rule
that is "barred by law". He further held that the judge in the circumstances
should have rejected the plaint under Order 7 rule 11 of the Civil Procedure
Code instead of dismissing it. Secondly the Court of Appeal held that a Plaintiff
who seeks exemption from the law of limitation has to plead it under Order 7
rule 6 of the Civil Procedure Rules. From a consideration of Order 7 rule 11
of the Civil Procedure Rules, the issue of whether the Plaintiff’s plaint is
barred by law has to be considered upon perusal of the plaint only and
anything attached to the plaint forming part of it.

At common law, if a potential plaintiff is an enemy alien, no cause of action can

arise since he has no standing to bring his action, and this situation continues
unless he ceases to be an enemy alien.

Consecutive causes of action will normally arise where the defendant is under
a continuing duty which he breaches on separate occasions, possibly years
apart.

An amendment introducing a new cause of action to defeat the defence of

limitation should not be allowed. The court has always refused to allow a party
or cause of action to be added where, if it were allowed the defence of statute of
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limitation would be defeated, the court has never treated it as just to deprive a
defendant of a legal defence.

Where the time to institute an action is set by legislation then court has no
power to extend such time. This rhymes well with the general principle that
once statute barred always statute barred. When a statute fixes time and there
are no provisions within that statute to enlarge time the court’s hands are tied.
They cannot enlarge time. In the case of Makula International Ltd vs. His
Eminence Cardinal Nsubuga [1982] HCB 11, held that a court has no
residual or inherent jurisdiction to enlarge time laid down by a statute and
therefore the judge’s order extending the time within which to appeal, several
months after the expiry of the statutory period, was without jurisdiction, was a
nullity and would be set aside.

The running of time and commencement

Once the action has accrued as a general rule time begins to run provided that
there are both competent plaintiff and competent defendant and until when the
suit is filed and not when the service is effected. Exceptionally this is not the
case where the action is based upon;

i) The fraud of the defendant

ii) Any fact relevant to the plaintiff’s right of action has been deliberately
concealed from him by the defendant
iii) The action is for relief from consequences of a mistake.

The running of time is postponed until the plaintiff discovered the fraud,
concealment or mistake or could, with reasonable diligence, have discovered it.

If on the date when the right of action accrued, the person to whom it accrued
was under disability, action may be brought at any time before the expiration
of six years from the date when he ceased to be under disability or died.

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Computation of time

As a general principle the courts will disregard parts of a day in calculating the
expiry of the limitation period. The day of the accident is to be excluded from
the computation of the limitation period as provided under the Interpretation
Act.

Section 34 provides;

(1) In computing time for the purpose of any Act—

(a) a period of days from the happening of an event or the doing of any act of
thing shall be deemed to be exclusive of the day in which the event happens or
the act or thing is done;

(b) if the last day of the period is a Sunday or a public holiday (which days are
in this section referred to as “excluded days”), the period shall include the next
following day, not being an excluded day;

(c) where any act or proceeding is directed or allowed to be done or taken on a

certain day, then if that day happens to be an excluded day, the act or
proceeding shall be considered as done or taken in due time if it is done or
taken on the next day afterwards, not being an excluded day; or

(d) where any act or proceeding is directed or allowed to be done or taken

within any time not exceeding six days, excluded days shall not be reckoned in
the computation of time.

The general effect of limitation is that the remedy is barred, but the plaintiff’s
right is not extinguished.

Defenses to limitation.

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Where the suit is instituted after expiration of the period prescribed by
the law of limitation, the plaint shall show the grounds upon which
exemption from the law is claimed-O.7 r 6 CPR. The provision of this rule is
mandatory and ignorance could not be a disability for purposes of limitation.

Sec. 21 provides for extension of limitation period in case of disability.

Under section 1 (3) a person shall be deemed to be under a disability while he
or she is an infant or of unsound mind.

Infancy-This is another word for minor. Art. 257 (c) a child is a person under
18 yrs.

Unsound Mind-A person is of unsound mind if he is a person who by reason of

mental disorder is incapable of managing and administering his property and
affairs.

In the case of M&D Timber Merchant and Transporters Ltd v Hwan Sung
Ltd (MISCELLANEOUS APPLICATION NO. 0796 OF 2015) Court held that for
a plaintiff to benefit from the exemption from the law of limitation, he or she
must plead grounds showing his or her disability to file the suit within the time
prescribed by the law. The disability must be a legal disability in a sense
that Section 1(3) of the Limitation Act provides that a person shall be deemed
to be under a disability while he or she is an infant or of unsound mind. In my
view, since the provision is very clear and specific, no other basis of disability
calls for recognition under the law.

However in the case of Fred Mungecha vs. A.G [1981] HCB 34 Court held that
imprisonment is a disability

Disability does not does not prevent the person affected from bringing or
defending an action. Although he may not do so without a next friend or
guardian ad litem-O. 33 r 1 & 3 CPR. When a right of action accrued for

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which a period of limitation is prescribed, the person to whom it accrued was
under disability the action may be brought at any time before the expiration of
six years from the date when the person ceased to be under disability or died-
s.21(1) limitation Act. In case of negligence, nuisance or breach of duty where
damages are claimed the period of bringing action under disability shall be
three years-s.21 (2)(a) limitation Act.

i) Acknowledgement and part payment

Acknowledgement by the defendant to the plaintiff’s rights or the defendant

making a part payment will revive the cause of action-s.22 limitation Act. The
law provides that any such acknowledgement shall be in writing and signed by
the person making the acknowledgement-s.23 limitation Act. Part payment
means payment in respect of the debt.

ii) Fraud and mistake.

Sec. 25 of the limitation Act provides that where, in the case of any action for
which a period of limitation is prescribed by the Act, either—

(a) the action is based upon the fraud of the defendant or his or her agent or of
any person through whom he or she claims or his or her agent;

(b) the right of action is concealed by the fraud of any such person as is
mentioned in paragraph (a) of this section; or

(c) the action is for relief from the consequences of a mistake, the period of
limitation shall not begin to run until the plaintiff has discovered the fraud or
the mistake, or could with reasonable diligence have discovered it; but nothing
in this section shall enable any action to be brought to recover, or enforce any
charge against, or set aside any transaction affecting, any property which—

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(d) in the case of fraud, has been purchased for valuable consideration by a
person who was not a party to the fraud and did not at the time of the
purchase know or have reason to believe that any fraud had been committed;
or

(e) in the case of mistake, has been purchased for valuable consideration,
subsequently to the transaction in which the mistake was made, by a person
who did not know or have reason

to believe that the mistake had been made.

In the case of Hermezdas Mulindwa and Another v Stanbic Bank (U) Ltd
HCCS-0426-2004 the issue was whether the plaintiffs’ suit was time barred.
Justice Lameck N. Mukasa held that it is trite that parties are bound by their
pleadings. By their pleadings the plaintiffs appear to concede that the period
within which to file the suit had expired. That in Uganda Revenue Authority Vs
Uganda Consolidated Properties Ltd (1997 – 2001) UCL 149 Justice
Twinomujuni JA stated. “Time limits set by statutes are matters of substantive
law and not mere technicalities and must be strictly complied with” That the
period of limitation where imposed begins to run from the date on which the
cause of action accrues. See Eridadi  Otabong  Waimo Vs  Attorney General
SCCA No 6 of 1990 (1992) V KALR 1. Order 7 rule 11 (d) of the Civil Procedure
Rules provides that a plaint shall be rejected where the suit appears from the
statement in the plaint to be barred by any law. The claim in the instant  suit
appears time barred by section 3 (I) (a) of the Limitation Act. In Francis Nansio
Michael Vs NuwaWalakira (1993) VI KALR 14 the Supreme Court held that
clearly if the action is time barred then that was the end of it. 
However, section 25 of the Limitation Act provides for postponement of the
limitation period. It states:  “Where in the case of any action for which a period
of limitation is prescribed by this Act, either –--- (a) the action is based upon
the fraud of the defendant or his or her agent or of any person through whom he
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or she claims or his or her agent. (b)  the right of action is concealed by the
fraud of any such persons as mentioned in paragraph (a) of this section, or
(c) the action is for relief from the consequences of a mistake; the period of
limitation shall not begin to run until the plaintiff has discovered the fraud or the
mistake or could with reasonable diligence have discovered it, but nothing in
this section shall enable any action to be brought to recover or enforce any
charge against or set aside any transaction affecting, any property which –---
(d)      in the case of fraud, has be purchased for valuable consideration by
a person who was not a party to the fraud and did not at the time of the
purchase know or have reason to believe that any fraud had been committed; or
(e) in the case of a mistake has been purchased for valuable consideration,
subsequently to the transaction in which the mistake was made, by a person
who did not know or have a reason to believe that the mistake had been made.”

 Court further held that where a plaintiff wishes to rely on any exemption to
the periods of limitation it must be specifically stated in the pleadings. If it is
not the plaint should be rejected. SeeIga Vs Makerere University (1972) EA 65.
That in the instant case the plaintiffs, in paragraph 6 of the plaint, plead an
exemption by mistake which they content were able to discover on or about
the 26th day of May 2003. Alternatively, in paragraph 8 they plead concealment
by fraud until their discovery of the UCB Board of Directors Resolution on
26th May 2003. They therefore content that the date of accrual of the cause of
action was by the provisions of sections 25 of the Limitation Act postponed to
the date of discovery of the mistake or the fraudulent concealment on 26the
May 2003. That Section 25 (c) extends the limitation period where the plaintiffs
action is for relief from the consequences of a mistake. Time begins to run from
the time when the plaintiff discovered the mistake or could with reasonable
diligence have discovered the mistake.

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That the issue was whether the plaintiffs’ action in the instant case was the
consequence of the alleged mistake of omitting the long service award from the
compensation package communicated to the Bank staff in the circular of
invitation to apply for early termination of service
That the plaintiffs’ cause of action arose from the mistake of omitting to include
it in the circular. A similar provision was considered in the English Case
of Philips Highs Vs Harper (1954) QB 411 where Pearson J. held that the
section does not apply to the case of a right of action which is concealed from
the plaintiff by mistake. Her Lordship stated at page 119:-
“What is the meaning of provision (c)? The right of action is for relief from the
consequences of a mistake. It seems to me that this wording is carefully chosen
to indicate a class of action where a mistake has been made and has had
certain consequences and the plaintiff is seeking to be released from
those consequences------ probably provision (c ) applies only where the
mistake is an essential ingredient of the cause of action, where the statement
of claim sets out the mistake and its consequences and prays for relief from the
consequences---“
That the plaintiff in the instant case are not seeking to be relieved from the
consequences of the mistake but are seeking to recover monies they claim to be
entitled to which they could not seek within the limitation period because by
the mistakes of the management they were not made aware of the
entitlement. The entitlement was not a consequence of the mistake. It does not
arise from the mistake. 

Court further held that the plaintiffs’ claim based on mistake is outside the

scope of the exemption in section 25 (c) of the Limitation Act.
Alternatively the plaintiffs sought to rely on fraudulent concealment of the
Resolution. Court held that the exemption of fraud was taken away by the
provisions of section 25 (d) of the Limitation Act. That defendant had bought
for value the assets and liabilities of UCB. Section 25 postponement of

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limitation cannot apply against a purchaser for value without notice of the
defect in title or without notice of the fraud. That the long service award is
money which the plaintiff claim they are entitled to by virtue of the UCB Board
of directors Resolution which they now claim from the defendant. It is thus
property. This was a liability which the defendant had inherited through a
purchase for a valuable consideration. The purchase was sometime in
November 2001 long after the alleged fraudulent concealment or omission in
1996. It is not pleaded that the defendant was party to the alleged fraudulent
concealment or omission. Further it is not pleaded that at the time of the
purchase the defendant knew or had reason to know of the alleged fraudulent
concealment or omission. Court further held that the plaintiffs have failed by
their pleadings to show that their claim is entitled to postponement of the
limitation period by the provision of section 25 of the Limitation Act and that
the suit was time barred and outside the saving provisions of section 25 of the
Limitations Act.

Sections 19 and 20 provides for Actions in respect of trust property or the

personal estate of deceased persons. In the case of Lukanga & Anor V
Kanakulya HCCS No. 42 OF 2008 Court held that section 25 of the
Succession Act vests all property in an intestate upon the personal
representative of the deceased upon trust for those persons entitled to the
property. That the defendant applied for and was granted Letters of
Administration and by operation of Section 25 of the succession Act, all the
property of the deceased devolved upon the said Defendant in trust for the
beneficiaries and the said Defendant should accordingly be held to account by
any beneficiary of the deceased. Court further held that any beneficiary
claiming interest in the estate of the deceased should do so within the period
prescribed by law i.e the Limitation Act Cap 80. Section 20 of the Limitation

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Act provides:- “SubjecttoSection19(1)no action in respect of any claim to
the personal estate of a deceased person or any share or interest in such
estate whether under a Will or on Intestacy shall be brought after the
expiration of twelve years from the date when the right to receive the
share or interest accrued ……………………………………. “(emphasis
mine)”.That the expression “subject to…” highlighted above in Section 20 has
the effect of bringing Section 19 (1) into play. The subsection provides:-

(1) No period of limitation prescribed by this Act shall apply to an

action by a beneficiary under trust being an action.

(a) In respect of any fraud or fraudulent breach of trust to which

the trustee was a party or privy or

(b) To recover from the trustee trust property or the proceeds of

the trust property in the possession of the trustee or
previously received by the trustee and converted to his or her
use “(emphasis mine). That whereas generally, no claim to any
share or interest in an estate can be brought by a beneficiary after
the expiry of 12 years, that legal bar is qualified where the
beneficiary claims fraud or fraudulent breach of trust by the
trustee provided for in Section 25 of the Succession Act. That this
in effect removes this case from the application of Section 20 of the
Limitation Act and places it under the vagaries of section 19 (1) of
the Act.

An action arising from death of any person through negligence shall be

commenced within twelve calendar months after death of such deceased
person-s.5 & 6 (3) law reform (miscellaneous provisions) Act Cap. 79.

The limitation Act provides for the following

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 1. Breach of Contract-6 years from date of breach
2. Tors-6 years
3. Judgement-12 years
4. Arrear of interest on judgement-6 years
5. Conversion and detention of goods-6 years
6. Recovery of land-12 years
7. Mortgage-12 years
8. Foreclosure and recovery of loans and mortgage-12 years
9. Fraudulent breach of trust-No limitation
10. Fatal accident actions-12 months
11. Action claiming personal estate of a deceased person-12 years
12. Claims for equitable relief-No limitation
Limitation Against Government and Scheduled Corporations

S.3 (1) of the civil procedure and limitation (Miscellaneous Provisions) Act no
action founded on tort shall be brought against the government, a local
authority and a scheduled corporation after expiration of two years from the
date on which the cause of action arose- No action founded on contract shall
be brought against the government or a local authority after expiration of three
years from the date on which the cause of action arose.

No action founded on contract shall be brought against the government or local

authority after expiration of three years from the date on which the cause of
action arose-s.3 (2) of the civil procedure and limitation (Miscellaneous
Provisions) Act

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In the case of Sam Kirembwe v Attorney General (Civil Suit No.73 Of 2001)
Civil Suit No.73 Of 2001 the learned State Attorney raised preliminary point
of law that the suit is barred by Statute in that the action was brought beyond
3 years from the time the cause of action arose contrary to S. 2(2) of the Civil
Procedure (Limitation Act) because the cause of action arose in 1988 but the
suit was on 30/01/2001 more than ten years later. Court held that under
section 3(2) of the civil Procedure and limitation (Miscellaneous Provisions) Act
no action founded on contract shall be brought against the Government or
Local Authority after the expiration of three years from the date on which the
cause of action arose. Order 7 rule (1) (d) of the C.P.R provides that in an
action barred by law the plaint must be rejected. Plaints have invariably been
rejected under the above provisions. See Iga vs. Makerere University (Supra)
and Arua Motor Dealers vs. Attorney general HCCS 1451/1986 Reported in
[1997] VKLR 32 where it was held actions against Government brought in
contract after 3 years from the accrual of the cause of action are barred by the
provisions of the Civil Procedure and the provisions of the Civil Procedure and
Limitation (Miscellaneous Provisions) Act. That under Section 5 of the Civil
Procedure and Limitation (Miscellaneous Provisions) Act when the period
within which a person has expired when such person is under a disability, he
may bring the action within 12 months from the time such disability ceases.
That the instant suit is barred by S. 3(2) of the Civil Procedure and Limitation
(Miscellaneous Provisions) Act.

Similar principles on disability are applicable to government, scheduled

corporations and local authorities within 12 months when the persons
disability ceases-s.5

Also limitation is postponed in cases of fraud or mistake-section 6

In the case of Eridad Otabong versus Attorney General Civil Appeal Number
6 of 1990 the facts were that the appellant had sued the Defendant for false
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arrest and unlawful detention. The suit was filed after 12 months of the date of
arrest and at the hearing an objection that the suit was time barred was
upheld. The court approved the passage from Clark and Lind Sell on Tort
13th edition paragraph 612 that: "Where there is a continuing nuisance or a
continuing trespass, every fresh continuance is a fresh cause of action and
therefore an injured party who sues after the cessation of the wrong may
recover for such portions of it as lie within the period limited." Oder JSC held
regarding the effect of limitation on unlawful detention or false imprisonment
that: "Regarding the effect of limitation on unlawful detention or false
imprisonment authoritative court decisions in this jurisdiction appear to be
lacking, but the sum of text book statements and superior court decisions is
quite clear. It is that such a wrong is necessarily a continuing tort so that the
cause of action accrues continuously throughout its duration."

Pre-Entry Exam 2014/2015

Qn. 42 When is a suit said to be time barred?

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 TOPIC XII

INTERROGATORIES, DISCOVERY AND INSPECTION

 INTERROGATORIES
 Section 22 of the civil procedure Act provides for the power to order
discovery and the like. Subject to such conditions and limitations as may
be prescribed, the court may, at any time, either of its own motion or on
the application of any party (a) make such orders as may be necessary or
reasonable in all matters relating to the delivery and answering of
interrogatories, the admission of documents and facts and the discovery,
inspection, production, impounding and return of documents or other
material objects producible as evidence; (b) issue summonses to persons
whose attendance is required either to give evidence or to produce
documents or such other objects as aforesaid; (c) order any fact to be
proved by affidavit.
 Section 22 of the Government Proceedings Act provides that subject
to and in accordance with rules of court—(a) in any civil proceedings in
the High Court or a magistrate’s court to which the Government is a
party, the Government may be required by the court to make discovery of
documents and produce documents for inspection; and (b) in any such
proceedings as are mentioned in paragraph (a) of this subsection, the
Government may be required by the court to answer interrogatories. (2)
Notwithstanding subsection (1), the section shall be without prejudice to
any enactment or rule of law which authorises or requires the
withholding of any document or the refusal to answer any question on
the ground that the disclosures of the document or the answering of the
question would be injurious to the public interest. (3) Any order of the
court under the powers conferred by subsection (1)(b) shall direct by
what officer of the Government the interrogatories are to be answered. (4)

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 Without prejudice to subsection (2), any rules of court made for the
purposes of this section shall be such as to secure that the existence of a
document is not disclosed if, in the opinion of a Minister, it would be
injurious to the public interest to disclose the existence of the document.
 Interrogatories are questions addressed to an opposing party in the
action, aimed at discovery of facts. The power of court to administer
interrogatories is derived from section 22 of the civil procedure Act and
section 22 of the Government Proceedings Act. The essential
requirements for proper interrogatories are that they should;
i) Relate to a matter in question between the parties; and
ii) Be necessary either for disposing fairly of the matter or for saving
costs
 It is entirely in the discretion of the judge as to whether an interrogatory
will be allowed or not. Order 10 rule 1 of the civil procedure rule provides
that in any suit the plaintiff or defendant may apply to court within
twenty one days from the date of the last reply or rejoinder referred to in
order 8 r 18(5) of the rules for leave to deliver interrogatories and
discovery in writing for the examination of the opposite parties, or any
one or more of those parties, and those interrogatories when delivered
shall have a note at the foot of them stating which of the interrogatories
each of the person is required to answer.
 Any order of court to issue interrogatories shall direct by what officer of
the Government the interrogatories are to be answered- section 22(3)
Government Proceedings Act.
 The application for leave to serve interrogatories should be made at a
reasonable time before the trial is likely to come on. Interrogatories shall
be in the form 2 of appendix B of the civil procedure rules with such
variations as circumstances may require-O.10 r 4 Cpr.

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  In the case of Stop and See (U) Ltd v Tropical Africa Bank Ltd (MISC.
APPLICATION NO 333 OF 2010) Madrama J (as by then) held that
under order 10 (1) the defendant or plaintiff may apply to court within
twenty one days from the
date of the last reply or rejoinder for leave to deliver interrogatories and
discoveries in writing for the examination of the opposite parties.
Interrogatories shall be answered by affidavit within ten days. Any
application to strike out interrogatories on the ground of being
scandalous or irrelevant, or not exhibited bona fide for the purpose of the
suit or lack of materiality to the suit may be made within seven days
after service of the interrogatories. Under rule 11 of order 10, where a
person omits to answer or answers insufficiently, the party interrogating
may apply to court to make him answer or for a further answer by
affidavit or by viva voce examination. A party may also apply for
discovery and inspection of documents. A party may give notice to
another to produce for inspection any documents referred to in his or her
pleadings. The party on whom notice is given shall deliver within 10 days
give notice specifying the time and place for the inspection excepting
those that the party objects to produce.

 In the case of Kapiriri v International Investments Ltd & 5 Ors (MISC.

APPLICATION NO. 170 OF 2012) Court held that the suit was originally
based on alleged trespass by the 1 st and 2nd Defendants fraudulent sale
by the 3rd to 6th Defendants.  That the Written statement of defence filed
at the time in paragraph 16 therein categorically stated that the
1st Defendant was a bona fide purchaser for value and had the necessary
documentary evidence of ownership. That at that time, the Plaintiffs
should have invoked the provisions of Order 10 CPR to seek clarifications
and answers by way of interrogatories to clear the issues raised in

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 paragraph 16 of the said defence, instead of jumping into the lake for a
fishing expedition  by going into the hearing of the suit.

 Guidelines
 There are no rigid rules for determining when leave will or will not be
granted to administer interrogatories, much depend on the
circumstances of the individual case. However there are a number of
guidelines which have been developed to be followed. These guidelines
may be categorized under the following heads;
i) Relevance
 Interrogatories must relate to any matter in question between the
parties. In the case of Marriot v Chamberlain [1886] 17 QBD 154 at
163 Lord Esher MR attempted to explain the meaning of relevance in
this context; ‘‘The right to interrogate is confined to facts directly in issue,
but extends to any facts the existence or non existence of which is relevant
to the existence or non existence of facts directly in issue.’’
 There are three important limits to the general rule regarding relevance;
a) Interrogatories relevant only to the credulity of witness will be disallowed
b) Interrogatories may be sought only as to matters relevant to the present
action, questions that are relevant not to the present action but other
future action should be disallowed
c) ‘Fishing’ interrogatories are not allowed. Fishing was defined by Lord
Esher MR in Hennesey v Wright (number 2) [1888] 24 QBD 445 at
448 thus; ‘‘The moment it appears that questions are asked and answers
insisted upon in order to enable the party to see if he can find a case,
either complaint or defense of which at present he knows nothing, and
which will be a different case from that which he knows nothing, and
which will be a different case from which he now makes, the rule against
fishing applies.’’

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 ii) Facts
Interrogatories are for facts, so they will be disallowed;
a) Where they call upon an interrogated party to express opinion on
something
b) Where they are aimed at discovering the evidence available to the
other side; they are not intended to provide a substitute of evidence
c) Where they are aimed at discovering the contents of an existing
document or as to what documents a party has or had in his
possession or control
iii) Necessity
Interrogatories may be administered only where they are necessary for
disposing fairly of the action or for saving costs. Interrogatories will
not normally be necessary for saving costs or for disposing fairly of
the action if witnesses are likely to be called at trial to give evidence
on the same matters.
 Examples of allowable interrogatories.
There is no list of allowable or prohibited interrogatories. However the
following are some of the examples of interrogatories which have been
allowed;
a) Asking for the name of the publisher of a defendant newspaper in a
libel action
b) Asking for figure of the circulation of a newspaper in a libel action,
where quantum of damages was in issue
c) Asking whether (in an action for breach of copy right) the products
in question had been copied from the plaintiff
d) Asking whether the defendant was in possession of the vehicle at
the time when it was involved in an accident
e) Asking in order to prove the handwriting of a disputed letter,
whether the interrogated party was the writer of another letter

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 f) Asking for the noise level in a factory, in an industrial deafness
case
g) Asking whether contractual documents had been signed by
interrogated party’s authorized agent.
 Answers
 O.10 r 8 of the civil procedure rules interrogatories are answered by
affidavit and are binding on the interrogated party in the sense that an
answer is intended to be an admission by the party who makes it, or at
any rate a statement by which in ordinary circumstances he will be
bound. In most cases answers may be a simple ‘Yes’ or ‘No’ but where
explanations are included, they must be unambiguous, precise and
reasonable.
 In the case of Kyenda v SBL International Holdings N. Ltd (MISC.
APPLICATION NO. 052 OF 2013 was an application brought under
section 22 and 98 CPA and Order 10 Rules 1, 2, 4, 6, 8 and 24, seeking
orders that Interrogatories for examination of the Respondent be
delivered to the said Respondent. The application was premised on the
allegation that the Respondent in the written statement of defence in the
head suit merely denied all averments in the Plaint and that it was
necessary to establish the facts in the suit to save Court’s time when the
trial commences. Justice Namundi held that Order 10 CPR regulates the
use of Interrogatories in civil proceedings. That Under Order X r.1 (b)
thereof, the Court will only allow those interrogatories which relate to the
matters in question or deemed relevant to the matters in question. That
under rule 7 thereof the Court will not allow those interrogatories that
are vexatious, unreasonable or that they are proflix, oppressive or
unnecessary.   Court cited National Social Security Fund Board of
Trustee Vrs. Kario Farms Ltd &Others (2006) EA 240, that it was
observed that in the process of presenting Interrogatories, the party

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 interrogating may put questions for the purpose of extracting from his
opponent information as to the facts material to the questions between
them when he has to prove on any issue raised or for purposes of
securing admissions as to those facts in order that the expense and delay
may be saved.  That the authority above relied on Omar Vrs.
Gordhanbhai& Another (1974) EA 518. Court further held that in
deciding whether the order should be made, the Court is to be guided by:
1Whether the Interrogatories are necessary for disposing of the suit fairly
or 2 For saving costs   Ref:  Sebastian R. D’Souza & Others Vrs.
Charles Clemente Ferrao (1959) EA 1000. Court further held that the
interrogatories in respect of the audit can only be carried out after the
Court orders so in its Judgment at the end of the trial, that particular
prayer cannot therefore be said to be necessary for the disposal of the
suit. That the case is about whether the Defendant is liable to pay
taxes/revenues to the Plaintiff.  If this liability is determined or the issue
is resolved in favour of the Plaintiff then the necessary audits would be
carried out once the Court orders so. Court further held that the prayers
in the Plaint are for declarations which essentially have among others the
effect that the Defendant is liable to pay local Revenues for its quarry’s
activities. That the issue that the interrogatories are not addressed to
particular individuals has been answered in Stanfield Properties Ltd.
Vrs. National West Minister Bank (1983)2 ALL ER 249where it was
held that a limited liability company in answering interrogatories must
procure the making of proper answers from the company’s officers
servant or agents….. It is not what is known to the individual but what is
known to the company. That the said interrogatories are correctly
addressed to the Defendant/Respondent who will take responsibility to
procure answers from its servants, employees or agents. That the
Applicant has made out justification for an order to serve interrogatories
to the Defendant and that the Defendant answers the interrogatories
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 allowed i.e. 1-8 and 30-48 within the time limit prescribed by Order 10
CPR. 
 DISCOVERY OF DOCUMENTS
 Discovery is the procedure whereby one party to an action must disclose
to the other party the existence of all documents which are or have been
in possession and which are material in the action. Discovery refers to
the disclosure and inspection of documents as opposed to facts.
Documents include originals and copies of original documents, tape
recordings and computer disk.
 The power of court to order for discovery is derived from section 22 of the
civil procedure Act and section 22 of the Government Proceedings Act.
O.10 r 12 of the civil procedure rules provides for application for
discovery of documents. Any party may, without filing any affidavit,
apply to the court for an order directing any other party to the suit to
make discovery on oath of the documents, which are or have been in his
or her possession or power, relating to any matter in question in the suit.
On the hearing of the application the court may either refuse or adjourn
the hearing, if satisfied that the discovery is not necessary, or not
necessary at that stage of the suit, or make such order, either generally
or limited to certain classes of documents, as may, in its discretion, be
thought fit; except that discovery shall not be ordered when and so far as
the court shall be of opinion that it is not necessary either for disposing
fairly of the suit or for saving costs.

 In the case of Tallikwa v Commissioner Land Registration (Registrar

of Titles Wakiso) (MISC. APPLICATION NO. 1274 OF 2013)Court held
that Under Order 10 Rule 1, any party may apply to court for an order
directing the other party in the suit to make discovery on oath of the
documents relating to any matter in question in the suit. That upon
reading Order 10 Rule 2, in order to be entitled to an order of discovery,

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 the applicant should fulfill the following conditions:- 1. The document
being sought should be, or has previously been in possession or power of
the other party. 2.The party stated to be holding the document(s) should
have been previously requested to avail them, but she/he declined to
release them to the applicant. 3. The production of such documents
should be necessary for the court to achieve a fair and final
determination of the suit or for saving costs.

 In the case of Wanyama v Hisa & Anor (ELECTION PETITION NO.

0019 OF 2016) Court held that discovery proceedings are generally
provided for under Order 10 CPR. That both rule 12 and 15 thereof
would be applicable to a party that seek discovery against another. That
rule 12 [1] appears to be a rule of wider application for any party who
seeks the discovery of any document, the restrictions of allowing the
prayer are left to the court’s discretion in rule 12[2] and the parameters
that the court may consider are given. On the other hand, rule 15
appears to permit the party seeking discovery to do so against the other
party in whose pleadings certain documents are mentioned. It is a more
restrictive rule.

 In the case of Stop and See (U) Ltd v Tropical Africa Bank Ltd (MISC.
APPLICATION NO 333 OF 2010) Madrama J (as by then) held that
under order 10 (1) the defendant or plaintiff may apply to court within
twenty one days from the
date of the last reply or rejoinder for leave to deliver interrogatories and
discoveries in writing for the examination of the opposite parties.
 The purpose of discovery is to ensure that issues which are to be decided
by the trial judge are clearly defined as possible and to ensure that the
trial takes place within estimated time set out in the order for directions,
and discovery must be completed before a case is set down for hearing.

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  In the case of Mutesi v Attorney General MISCELLANEOUS
APPLICATION No. 0912 OF 2016) Court held that Discovery is a
category of procedural devices employed by a party to a civil or criminal
action, prior to trial, to require the adverse party to disclose information
that is essential for the preparation of the requesting party's case and
which the other party alone knows or possesses. It is a device used to
narrow the issues in a law suit or obtain evidence not readily accessible
to the applicant for use at trial and/or ascertain the existence of
information that may be introduced as evidence at trial provided it is not
protected by privilege. That Public policy considers it desirable to give
litigants access to all material facts not protected by privilege to facilitate
the speedy and fair administration of Justice. Discovery is contingent
upon a party's reasonable belief that he or she has a good cause of action
or defence. See: Karuhanga & Anor Vs Attorney General & 2 Ors MISC.
CAUSE NO. 0060 OF 2015, That in view of the above clear objects of
discovery, a party seeking for a production of documents from the other
party must be before the Court to which the application is made and the
suit must have pending issues for determination by that court.  The
document sought must be documents relevant to the determination of
the pending suit before Court.  This position is born out in the Law
under the provisions of Order 12 rule 12 (1) of the Civil Procedure Rules
and Order 10 rule 14 of the Civil Procedure Rules. That It is trite law that
court will deny discovery if the party is using it as a fishing expedition to
ascertain information for the purpose of starting an action or developing
a defence. A court  is responsible for protecting against the unreasonable
investigation into a party’s affairs and must deny discovery if it is
intended to annoy, embarrass, oppress or injure the parties or the
witnesses who will be subjected to it. A court will stop this discovery
when used in bad faith and if the information to be produced is not
protected by privilege. On what amounts to a fishing expedition the case
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 of Gale Vs Denman Picture Houses Ltd [1930] KB 588, 590 per Lord,
Scrutton L. J relied upon by the respondent wherein he held inter
alia thus: “A plaintiff who issues a writ must be taken to know what his
case is. If he merely issues a writ on the chance of making a case he is
issuing what used to be called a “Fishing Bill” to try to find out whether he
has a case or not. That kind of proceeding is not to be encouraged. For a
plaintiff after issuing his writ but before delivering his statement of claim
to say, “show me the documents which may be relevant so that I may see
whether I have a case or not” is most undesirable proceeding.”

 Document must be relevant.

 Documents which must be disclosed are those relating to any matter
between the parties in the action. In the leading case of Campagnie
Financiere vs Peruvian Guano Company [1882] 11 QBD 55 at 63
Brett L.J gave a very wide interpretation of this phrase. He said; ‘…it
seems to me that every document relates to the matter in question in the
action, which not only would be evidence upon any issue, but which it is
reasonable to suppose, contain information which may not which must
either directly or indirectly because, as it seems to me, a document can
properly be said to contain information which may enable the party
requiring the affidavit either to advance his own case or to damage the
case of his adversary, if it is a document which may fairly lead him to
train of inquiry which may have either of those two consequences.’
 Although discovery may be general, it must not be used as a fishing
expedition or in any improper way. In the case of Forester vs Bristish
Railways Board 1996 The Times, 8 April, the action related to a fatal
accident on a railway. The plaintiff sought discovery relating to a wide
range of aspects of train operations including reports of accidents which
had occurred as a result of doors opening on moving trains. It was held

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 that the document required to be disclosed was too wide and clearly
constituted a fishing expedition.
 The courts discourage improper use of discovered matters. Improper use
include using discovered materials to start a new cause of action.
Usually a party seeking discovery will give an undertaking not to use the
discovered material for any purpose other than in furtherance of the
present case.
 Privileged Documents
 A party making discovery may object to producing privileged document
for inspection. Where privilege is claimed to any document, the court
may itself inspect it in order to decide whether the claim is valid. The
commonest types of privileged documents are:
a) Communication between Counsel / Advocate and Client

Any document written by a counsel and addressed to his client (and vice versa)
is privileged, provided it is intended to be confidential and it is within the object
of obtain in or giving legal advice or assistance.

b) Documents prepared with a view to litigation

All documents which are prepared for the paurposes of assisting apartyuy or
his legal advisers on actual or anticipated litigation are privileged, whether they
relate to obtaining the necessary evidence. Examples include expert reports,
pleadings etc

c) Privileges against self incrimination

A party has a right to refuse to answer questions or produce documents

tending to show that he has been guilty of offence or answers to which might
expose him or her to any penalty, which is reasonably likely to be sought.

d) Without prejudice communication

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Communications between the parties or their Advocate marked ‘Without
Prejudice’ whether litigation was current or not will be privileged and may not
be put in evidence unless both parties consent.

 In the case of Kagyo Golola v Orient Bank Ltd (MISC. APPLICATION

NO. 150 OF 2013) [2013] UGHCCD 115 Court held that an applications
for discovery of documents are governed by O. 10 CPR. Under O.10 r 12
CPR it is provided that:- “1. Any party may, without filing any affidavit,
apply to court for an order directing any other party to the suit to make
discovery on oath of the documents which are or have been in his or her
possession or power relating to any matter in question in the suit. Upon
hearing the application court may either refuse or adjourn the suit if
satisfied that the discovery is not necessary or not necessary at that stage
of the suit”. That the applicant must therefore satisfy court that it is
necessary to make a discovery order at the time of application. That
discovery is the process used by parties to a law suit to exchange
information about the case and obtain evidence to support their claims.
That Court directs the inquiry but this has to be in non privileged arrears
that are relevant to the claim or defence. The bottom line, however, is full
disclosure necessary for a speedy and fair trial because each party is
entitled to know what documents exist for potential use at the trial.
Court further held that an omnibus request for “all documents related to
the loan” without the consent of the respondent’s client will be a breach
of confidentiality based on the Banker/Customer relationship. This is a
valid exception to the grant of an order for discovery of documents. This
request amounts to a “fishing expedition” which is prejudicial to the
respondent’s trade. Secondly, the applicant has not made any reply to
the written statement of defence which would mark the close of
pleadings. Thirdly, discovery is not necessary at this stage of the suit
because all documents relevant to the determination of the suit will be

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 exhibited during scheduling conference. Mandatory scheduling was
introduced to ensure that issues are narrowed down before trial and
possibilities of settlement explained and to avoid delay in trial of cases
through interlocutory applications. Considering the application as a
whole and the pleadings in the head suit I am not convinced that this is
a proper application in which the orders sought should be granted.  

 To use Order 10 r 14 of the civil procedure rules there must be

proceedings pending and also court is empowered to order the
production of documents. This order is narrower than rule 12 and 13
which concerns discovery before hearing commences.
 The purpose of discovery is to ensure that issues which are to be decided
by the trial judge are clearly defined as possible, and to ensure that the
trial takes place within estimated time set out in the order for direction,
discovery must be completed before the case is set down for trial.
 INSPECTION
 If any document is referred to in a party’s pleading or affidavit, his
opponent may serve a notice on him requiring him to produce that
document for inspection-O.10 r 15CPR. Within ten days of receiving such
notice, the party must serve a notice stating the time within three days of
receipt of the notice and a place where inspection may take place-O.10 r
17 CPR. If objection is taken to the production of any document, the
notice must specify the document and state the grounds of the objection.
 This procedure may be useful where, for example a party’s pleadings
refers to an agreement in writing dated. Since it gives the opportunity for
inspection of the document without waiting for formal discovery, which
takes place after a close of pleadings. Thus the defendant may inspect a
document referred to in the plaint before drafts his defense.

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  If a notice served is not complied with, the applicant may move court to
make an order of inspection-O.10 r 18CPR. An order for inspection may
be made before filing a defense.
 Inspection thus entails both:
a) The examination of documents on the list or on the pleadings or
affidavits; and
b) The taking away of copies.
 NON COMPLIANCE WITH COURT’S ORDER
 If the defendant does not comply with an order for discovery, the court
may strike out the defense and enter judgment for the plaintiff; and if a
plaintiff does not comply with an order, the court may dismiss the
action-O.10 r 21CPR.
 In the case of Said Tibezarwa vs UCB [1997-2008] UCLR 383 /HCCS
No. 13/1996 during hearing of the suit, the plaintiff applied for an order
requiring the Bank to produce for his inspection banker’s books and
other documents pertaining to his account which application was never
objected to by the defendant counsel, and accordingly granted to furnish
the plaintiff with its banker’s book in respect of Account number 00770
of the UCB Gaba Branch and to furnish Plaintiff with copies of verified
entries of the above account in the UCB’s ledgers. At the next hearing the
learned counsel for the Plaintiff applied for striking out the defendant
written statement of defense pursuant to O.10 r 21CPR on ground of
failure by UCB to obey court orders to produce banker’s books /
documents. The defendant counsel opposed the application on ground
that the required documents are simply nonexistent at UCB having
either been stolen, or lost or wilfully destroyed. Justice Ogoola held that
if it was true that the documents are now nonexistent through being lost
or stolen or destroyed then the development must be relatively recent.
That in particular it must be subsequent to the court order. Further held

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 that indeed the Bank’s documents existed and were in safe custody at all
material times but for reasons best known to itself the bank chose not to
produce them as ordered by court. That it was precisely this kind of
disobedience that O.10 r 21CPR was designed to remedy. Court further
held that had no hesitation in granting the application to strike out a
Witten statement of defense under o. 10 r 24CPR on ground of the
defendant’s non compliance and disobedience of the court’s of the court’s
order for production of banker’s books. That pursuant to O.21 r 21CPR
the effect of striking out of a defendant’s defense is to place the
defendant in the same position as if he had not defended. That in light of
section 101 (now 98) CPA enabling court to make such orders as may be
necessary for the ends of justice, judgment was entered for the plaintiff.
Pre-Entry Exam 2016/2017
Qn. 2 What is the usefulness of discovery in civil proceedings?

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