CIVIL PROCEDURE AND PRACTICE IN UGANDA

BY SSEKAANA MUSA AND SALIMA NAMUSOBYA SSEKAANA

TABLE OF CONTENTS
Forward
Preface
LIST OF FIGURES

LIST OF CASES.........................................................................................................................xii
LIST OF STATUTES......................................................................................................................
LIST OF ABBREVIATIONS......................................................................................................................xlii

CHAPTER ONE...........................................................................................................................1
INTRODUCTION.........................................................................................................................................1

Overview of Civil procedure..1

ORGANIZATION AND HIERARCHY OF THE COURTS...........................................................................3
JURISDICTION............................................................................................................................................4
Effect of Lack of Jurisdiction..5
WHO MAY APPEAR BEFORE COURT......................................................................................................6
Litigants in Person...................................................................................................................................6
Advantages of being a litigant in person..................................................................................................6
Disadvantages of Litigation in person.....................................................................................................7
THE INHERENT JURISDICTION OF THE COURT..................................................................................8
NATURE OF INHERENT JURISDICTION.................................................................................................8
JURIDICAL BASIS OF INHERENT JURISDICTION.................................................................................9
POWERS OF THE COURT UNDER INHERENT JURISDICTION..........................................................10
Inherent powers exercisable by summary process.................................................................................10
A Control Over Process..........................................................................................................................11
Control Over Persons.............................................................................................................................11
Control of persons of inferior courts and tribunals................................................................................11
INHERENT JURISDICTION OF INFERIOR COURTS............................................................................11
RELATIONSHIP BETWEEN INHERENT JURISDICTION AND RULES OF COURT............................11
NATURE OF JUDICIAL DISCRETION....................................................................................................13
Justification for Judicial Discretion.14
CONCLUSION...........................................................................................................................................15

CHAPTER TWO........................................................................................................................16
PARTIES.....................................................................................................................................................16
INTRODUCTION.......................................................................................................................................16
LAW GOVERNING CAPACITY TO SUE OR BE SUED............................................................................16
Standing to Sue /Locus Standi..16
NATURAL PERSON...................................................................................................................................17
Description of Natural Persons as a party..............................................................................................18
Agent.......................................................................................................................................................18
MINORS/INFANTS.....................................................................................................................................18
STATUS OF A NEXT FRIEND OF AN INFANT.........................................................................................19
COUNTERCLAIMS AND THIRD PARTY PROCEEDINGS BY AN INFANT............................................20
Withdrawal of next friend.......................................................................................................................20
An infant coming of age..........................................................................................................................20
Death of an infant party.........................................................................................................................21
MENTALLY INCOMPETENT PERSONS...................................................................................................21
Actions involving mentally incompetent persons...................................................................................21
A party becoming mentally disordered during the proceedings.............................................................22
Recovery of mentally incompetent person during pendency of the proceedings...................................22
Death of a mentally incompetent person during proceeding.................................................................22
Pleadings by a mentally incompetent person.........................................................................................22
ALIENS.......................................................................................................................................................23
Types of Aliens........................................................................................................................................23

Enemy alien as co-plaintiff or suing in representative capacity.............................................................23

Enemy Alien in neutral territory.............................................................................................................23
When foreign state may sue....................................................................................................................24
COMPANIES AND STATUTORY PERSONS AS PARTIES........................................................................25
Government............................................................................................................................................26
Local
governments.26.
REPRESENTATIVE PARTIES....................................................................................................................27
Administrators and Executors................................................................................................................27
Trustees...................................................................................................................................................28
Actions by a representative.....................................................................................................................29
Actions against representatives..............................................................................................................29
Unincorporated Associations, clubs, trade unions, employer associations, general associations..........29
Status of members of Unincorporated Association................................................................................30
Actions by or against Unincorporated Association................................................................................30
Representative actions by or against members of an Unincorporated Association................................31
PARTNERSHIPS.........................................................................................................................................32
Actions by or against Partnerships.........................................................................................................32
JOINDER OF PARTIES..............................................................................................................................33
Grounds of Joinder.................................................................................................................................33
Rules of court for joinder of parties.......................................................................................................34
Joinder of parties by plaintiff and defendant or court............................................................................35
Joinder of defendant...............................................................................................................................36
Adding of a defendant against wishes of plaintiff..................................................................................36
Claims against defendants in alternative................................................................................................37
Joinder of parties by the court on application........................................................................................37
Joinder of parties to an action by court on its own motion....................................................................37
Joinder of Intervenors............................................................................................................................37
Leave of court to intervenor becoming a party......................................................................................38
Intervenors legal rights affected............................................................................................................38
Right of Intervenor to become a party....................................................................................................38
Intervention by an Amicus Curiae..........................................................................................................38
JOINDER ON MISNOMERS......................................................................................................................39
Deceased or non existent persons as plaintiffs.......................................................................................39
MISTAKES IN DESCRIPTION OF PARTIES............................................................................................39
Mistakes in a name of a plaintiff............................................................................................................39
Use of Alias for a party........................................................................................................................40
THIRD PARTY PROCEEDINGS................................................................................................................40
The objects of third party procedure......................................................................................................40
Nature of third party proceedings..........................................................................................................40
Scope of third party proceedings............................................................................................................41
Relief related to original subject matter................................................................................................41
Determination of a related issue............................................................................................................41
Limitation on scope of third party proceeding.......................................................................................42
INTERPLEADER.......................................................................................................................................44
Nature of interpleader relief...................................................................................................................44
Nature of property involved in an interpleader issue.............................................................................45
Application for interpleader relief.........................................................................................................45
Affidavit in support of application for interpleader...............................................................................45
Conditions for relief by applicant for interpleader relief.......................................................................46

CHAPTER THREE....................................................................................................................49
CAUSE OF ACTION..................................................................................................................................49
Definition................................................................................................................................................49
Determinants of cause of action.............................................................................................................49
Joinder of causes of action.....................................................................................................................50
Principles applicable to joinder of causes of action..............................................................................50

ii

Trial of causes of action in an action.....................................................................................................52

CHAPTER FOUR......................................................................................................................54
LIMITATION OF ACTIONS.......................................................................................................................54
INTRODUCTION.......................................................................................................................................54
NATURE OF LIMITATION........................................................................................................................54
BASIC PRINCIPLES OF LIMITATION.....................................................................................................54
Cause of action.......................................................................................................................................55
Competent parties...................................................................................................................................55
Consecutive causes of action..................................................................................................................55
Concurrent causes of action...................................................................................................................56
Once statute barred, always statute barred...........................................................................................56
The running of time and the commencement..........................................................................................57
Computation of time...............................................................................................................................58
When it is impossible to issue process on the last day...........................................................................58
The effect of expiration of a limitation period.......................................................................................59
DEFENCES TO LIMITATION....................................................................................................................59
Disability................................................................................................................................................59
Infancy....................................................................................................................................................59
Unsound mind.........................................................................................................................................60
Effect of disability...................................................................................................................................60
Acknowledgement and part payment......................................................................................................61
Part payment..........................................................................................................................................61
What is a payment?................................................................................................................................61
LIMITATION AGAINST GOVERNMENT AND SCHEDULED CORPORATIONS...................................62
Fraud, concealment and mistake............................................................................................................63
Concealment...........................................................................................................................................64
Mistake...................................................................................................................................................64
NEGOTIATIONS........................................................................................................................................64
CHAPTER FIVE..65
RES JUDICATA..65
Introduction.....65
Definition,Scope and Object....65
Pleading res judicata.67
Final Judgements...68
Judgements by Consent or Default....68
Judgements obtained by Fraud69
Decision on Preliminary or Technical points...69
Interlocutory Orders..69
Execution Proceedings..70
Whether Compensantion in Criminal is res judicata in a civil suit..70

CHAPTER SIX...........................................................................................................................71
CONSOLIDATION OF ACTIONS/SUITS AND TEST SUITS....................................................................71
Introduction............................................................................................................................................71
CONSOLIDATION UNDER RULES OF COURT.....................................................................................72
The granting of orders for consolidation................................................................................................72
Refusal of consolidation.........................................................................................................................72
Partial consolidation..............................................................................................................................73
CONSOLIDATION BY SAME PLAINTIFF AGAINST SAME DEFENDANT............................................73
Actions by same plaintiff against different defendants...........................................................................74
Actions by several plaintiffs against the same defendant.......................................................................74
Trial heard together................................................................................................................................74
Place of trial of consolidation suit..........................................................................................................74
Conduct of consolidated action.............................................................................................................75
TEST ACTIONS/SUITS...............................................................................................................................75

CHAPTER SEVEN....................................................................................................................76
PLEADINGS...............................................................................................................................................76

iii

NATURE AND FUNCTIONS OF PLEADINGS.........................................................................................76

Pleadings................................................................................................................................................76
Definition................................................................................................................................................76
Documents within the definition of a pleading include..........................................................................76
Framing issues........................................................................................................................................76
OBJECT OF PLEADINGS.........................................................................................................................76
FORMAL REQUIREMENTS OF PLEADINGS.........................................................................................78
Non compliance......................................................................................................................................78
Heading and Title...................................................................................................................................78
Title.........................................................................................................................................................78
Describing the parties............................................................................................................................79
Description of pleading..........................................................................................................................79
PARAGRAPHS, FIGURES AND SIGNATURES........................................................................................79
Paragraphs of Pleadings........................................................................................................................79
Figures in Pleadings...............................................................................................................................80
Signature of pleadings............................................................................................................................80
Date and endorsement............................................................................................................................80
PRINCIPLE RULES OF PLEADINGS......................................................................................................80
System of fact pleading...........................................................................................................................80
The role of this rule................................................................................................................................81
Constituent Elements of Order 6 r 1.......................................................................................................81
Pleading material facts only...................................................................................................................82
Fact and material...................................................................................................................................82
What facts are material?........................................................................................................................82
Pleading All material facts...............................................................................................................82
Pleading material facts not evidence......................................................................................................83
Pleading material facts, not Law............................................................................................................83
Pleading material facts in summary form...............................................................................................83
SUBSIDIARY RULES OF PLEADING.......................................................................................................84
Alternative and inconsistent allegations.................................................................................................84
Pleading techniques................................................................................................................................84
Separate and distinct facts......................................................................................................................84
Condition of Mind...................................................................................................................................84
Necessary particulars.............................................................................................................................85
Condition precedent...............................................................................................................................85
Distinguishing between conditions precedent and material facts...........................................................86
Effects of document or purport of conversation.....................................................................................86
Exception................................................................................................................................................86
Documents Legal effect Pleading.....................................................................................................87
Knowledge..............................................................................................................................................87
Particulars..............................................................................................................................................87
Notice......................................................................................................................................................87
Point of Law...........................................................................................................................................88
Litigation strategy..................................................................................................................................88
Tactics.....................................................................................................................................................88
Presumptions..........................................................................................................................................89
Allegations of Damage...........................................................................................................................89
Difference between special and general damages..................................................................................89
Pleading practice in relation to loss and damage....................................................................................90
Future loss..............................................................................................................................................90
Liabilities already incurred....................................................................................................................90
Nexus between conduct complained of and damage..............................................................................90
General and Special Loss Several not Joint........................................................................................90
Age Personal injury claims.................................................................................................................91
Aggravated damages..............................................................................................................................91
Exemplary damages................................................................................................................................91

iv

Continuing damage/loss.........................................................................................................................91
Mesne Profits..........................................................................................................................................92
Prayer for relief/remedy.........................................................................................................................92
Absence of prayer...................................................................................................................................92
Costs.......................................................................................................................................................92
Pleading the prayer in the alternative.....................................................................................................92
Alternative claims and judgment in default............................................................................................92
PLEADING IN DEFENCE.........................................................................................................................96
Object.....................................................................................................................................................96
Pleading requirements............................................................................................................................96
Matters which must be specifically pleaded...........................................................................................96
Pleading in the Alternative.....................................................................................................................97
The overriding discretion of the court....................................................................................................97
Things to consider before drafting the defence......................................................................................97
Pleading style.........................................................................................................................................98
Form of Written Statement of Defence..................................................................................................99
More than one defendant........................................................................................................................99
Admissions Express or Implied by Non-Traverse................................................................................100
What should be admitted?....................................................................................................................100
How to admit........................................................................................................................................100
Implied admission.................................................................................................................................100
Circumstances where an implied admission does not arise..................................................................101
Advantages of making admissions........................................................................................................101
Tactical denials.....................................................................................................................................101
Withdrawing an admission...................................................................................................................101
Admission no particulars...................................................................................................................101
Traverse by denial or non admission....................................................................................................101
What does a traverse do?.....................................................................................................................102
Traverse must be specific not general..................................................................................................102
Traverse must not be evasive................................................................................................................102
Avoid the incomplete admission...........................................................................................................102
Traverse material facts not particulars..................................................................................................102
Denails of damages..............................................................................................................................103
Exceptions to the general rule..............................................................................................................103
When special damage is essential to cause of action...........................................................................103
SETOFF AND COUNTERCLAIM............................................................................................................106
The distinction between setoff and counterclaim.................................................................................106
Setoff when it arises...........................................................................................................................106
Nature of a setoff..................................................................................................................................107
A shield not a sword.............................................................................................................................107
Pleading setoff......................................................................................................................................107
Where claim exceeds setoff...................................................................................................................107
Where setoff exceeds claim...................................................................................................................107
Setoff is pleaded generally....................................................................................................................107
The pleading of a setoff should be particularized.................................................................................107
When issue is joined without a reply....................................................................................................108
COUNTER-CLAIM...................................................................................................................................108
Nature of counterclaim.........................................................................................................................108
Principles as to pleading a counterclaim..............................................................................................108
Conditions precedent to a successful counterclaim..............................................................................108
Grounds of defence as counterclaim....................................................................................................108
REPLY AND SUBSEQUENT PLEADINGS.............................................................................................113
Functions of reply.................................................................................................................................113
When it is necessary for a reply............................................................................................................113
No reply-joinder....................................................................................................................................113
Joinder of issue effect........................................................................................................................113

PLEADING TECHNIQUE.......................................................................................................................116
Multiple and inconsistent averments....................................................................................................116
Pleading points.....................................................................................................................................116
The Rule against departure...................................................................................................................116
Departure meaning............................................................................................................................116
Defence to counterclaim.......................................................................................................................116
Pleading to a counterclaim...................................................................................................................117
Pleading a reply and defence to counterclaim......................................................................................117
Counterclaim Joinder of issues..........................................................................................................117
AMENDMENT OF PLEADINGS.............................................................................................................117
Introduction purpose of the power to amend.....................................................................................117
Amendment without leave.....................................................................................................................118
The right to amend but not to add........................................................................................................118
Right to amend is reciprocal.................................................................................................................119
The leave of the court...........................................................................................................................119
Effect of amendment.............................................................................................................................122
Amendment as to remedy......................................................................................................................122
Practice.................................................................................................................................................122
CLOSE OF PLEADINGS.........................................................................................................................123
Rationale...............................................................................................................................................123
Significance of close of pleadings........................................................................................................123
Pleadings deemed to be closed.............................................................................................................123
Amendment does not bar closure.......................................................................................................124
Striking out pleadings...........................................................................................................................124
Vexatious meaning................................................................................................................................125
Embarrassing meaning.........................................................................................................................125
Abuse of process...................................................................................................................................126
Services of pleadings between parties..................................................................................................126
Sequential service.................................................................................................................................126

CHAPTER EIGHT...................................................................................................................127
SERVICE OF COURT PROCESS............................................................................................................127
What is summons?................................................................................................................................127
Services of pleadings between parties..................................................................................................127
On whom is summons/court process served?.......................................................................................127
How is summons served........................................................................................................................128
Time of service..129
Service on Government.........................................................................................................................129
Service on Corporation/Firms..............................................................................................................130
Substituted service within jurisdiction.................................................................................................131
Procedure for substituted service.........................................................................................................131
Service by post......................................................................................................................................131
Service on persons who cannot be reached..........................................................................................132
Service out of jurisdiction.....................................................................................................................132
Renewal of Summons...........................................................................................................................132
Service of Court process on Foreighn State or Body133

CHAPTER NINE......................................................................................................................135
COMMENCEMENT OF PROCEEDINGS...............................................................................................135
Ordinary suit/plaint..............................................................................................................................135
Originating summons...........................................................................................................................136
Notice of Motion...................................................................................................................................140
PETITION.................................................................................................................................................144

CHAPTER TEN........................................................................................................................148
FILING OF COURT PROCESS...............................................................................................................148
Registry.148
Magistrate Court..................................................................................................................................148
Filing of Court Process........................................................................................................................148

vi

Commercial Registry............................................................................................................................149
Family Division Registry......................................................................................................................149
CivilDivisiont General Registry...........................................................................................................150
Land registry.150
Other Registries....................................................................................................................................150
What is received at registry?................................................................................................................150
Fixing a case for Hearing.....................................................................................................................151
Payment of Court fees..152

CHAPTER ELEVEN...............................................................................................................154
JUDGMENT BEFORE TRIAL.................................................................................................................154
Default Judgments................................................................................................................................154
Application for Judgment Exparte........................................................................................................154
Multiple Defendants.............................................................................................................................156
Does it matter where liability is joint or several...................................................................................156
Claims in the alternative......................................................................................................................156
The defendant disputes the jurisdiction................................................................................................156
Liquidated demand...............................................................................................................................156
What is a liquidated demand?..............................................................................................................156
Liquidated demands and penalty clause...............................................................................................157
Judgment figure....................................................................................................................................157
What if debt paid in full after summons but before Judgment.............................................................157
When Judgment is entered with arithmetical error...............................................................................157
Unliquidated Demand..........................................................................................................................157
Mixed claims.........................................................................................................................................157
Judgment on admissions.......................................................................................................................158
Dismissal for Want of Prosecution.......................................................................................................158
Dismissal for disobedience to peremptory Court Orders.....................................................................159
Dismissal for abuse of process.............................................................................................................160
Dismissal for delay...............................................................................................................................160
WITHDRAWAL/DISCONTINUANCE......................................................................................................161
CHAPTER TWELVE......161
PRE-TRIAL AND JUDGMENT REMEDIES.......................................................................................163
Nature of Interlocutory Equitable Relief..............................................................................................163
Introduction (Jurisdiction)...................................................................................................................163
Definition..............................................................................................................................................163
General principles for grant of interlocutory injunction.......................................................................164
Prima facie case...................................................................................................................................165
Irreparable injury/damages..................................................................................................................165
Damages an adequate but no a complete remedy.................................................................................166
Balance of convenience........................................................................................................................166
Status Quo............................................................................................................................................167
Interim injunction.................................................................................................................................168
Vitiating factors....................................................................................................................................168
Duty to apply promptly.........................................................................................................................169
Fraud and Unclean hands....................................................................................................................169
Injunction against Government............................................................................................................169
Interlocutory Injunctions and Third Parties..........................................................................................171
Exceptions to the rule in American Cyanamid.....................................................................................171
DISCHARGE OF INTERLOCUTORY INJUNCTION......................................................................173
MAREVA INJUNCTIONS AND ANTON PILLERS..................................................................................173
Mareva injunctions...................................................................................................................................173
Requirements........................................................................................................................................174
ANTON PILLER ORDERS.......................................................................................................................174
SECURITY FOR COSTS..........................................................................................................................175
PAYMENTS IN COURT AND TENDER...................................................................................................177
Amount to pay in...................................................................................................................................178

vii

Acceptance of payment in.....................................................................................................................179

Where payment in is not accepted........................................................................................................179
Tender before action.............................................................................................................................180
ARREST AND ATTACHMENT BEFORE JUDGMENT...........................................................................180
SETTING ASIDE DEFAULT JUDGMENTS............................................................................................181
Delay.....................................................................................................................................................182

CHAPTER THIRTEEN...........................................................................................................183
SUMMARY JUDGMENT (SUMMARY SUIT)..........................................................................................183
Introduction..........................................................................................................................................183
The problem which precipitated change...............................................................................................183
How does it work?................................................................................................................................183
Scope of Summary Suit.........................................................................................................................183
Personal representatives.......................................................................................................................184
Conditions.............................................................................................................................................184
The Defendant......................................................................................................................................187
Conditional Leave................................................................................................................................187
Unconditional leave to defend..............................................................................................................188
The Cheque Rule................................................................................................................................189

CHAPTER FOURTEEN..........................................................................................................191
INTERROGATORIES, DISCOVERY AND INSPECTION.......................................................................191
INTERROGATORIES...............................................................................................................................191
Introduction..........................................................................................................................................191
PROCEDURE...........................................................................................................................................191
GUIDELINES...........................................................................................................................................192
Relevance..............................................................................................................................................192
Facts.....................................................................................................................................................192
Necessity...............................................................................................................................................193
Other exclusions...................................................................................................................................193
Examples of allowable interrogatories.................................................................................................194
ANSWERS.................................................................................................................................................195
DISCOVERY OF DOCUMENTS..............................................................................................................195
DOCUMENTS MUST BE RELEVANT.....................................................................................................196
IMPROPER USE OF DISCOVERED DOCUMENTS.............................................................................196
PRIVILEGED DOCUMENTS..................................................................................................................197
Communication between Counsel/Advocate and Client......197
Documents prepared with a view to Litigation197
Privilege against Self Incrimination198
WITHOUT PREJUDICE COMMUNICATIONS......................................................................................198
ORDERED DISCOVERY.........................................................................................................................199
ACTION FOR DISCOVERY.....................................................................................................................199
The Norwich Pharmacal Rule..............................................................................................................199
The problem in Practice202
INSPECTION...........................................................................................................................................203
INSPECTION OF DOCUMENTS REFERRED TO IN PLEADINGS......................................................203
NON COMPLIANCE WITH THE COURTS ORDER.............................................................................204

CHAPTER FIFTEEN...............................................................................................................205
THE TRIAL...............................................................................................................................................205
SCHEDULING CONFERENCE OR CASE MANAGEMENT CONFERENCE.......................................205
OBJECTIVES OF SCHEDULING CONFERENCE................................................................................206
POWERS OF COURT..............................................................................................................................206
CONTENT OF SCHEDULING CONFERENCE.....................................................................................207
TRIAL AND COURT PROCEEDING......................................................................................................207
Framing of Issues..209
Order of Proceeding at Trial.210
Making Submissions in the Court210
No case to answer.................................................................................................................................211

viii

Examination of witnesses......................................................................................................................211
Witnesses unable to attend court examination out of the jurisdiction..................................................212
EVIDENCE BY AFFIDAVITS..................................................................................................................213
Formal requirements............................................................................................................................215
BODY........................................................................................................................................................216
ALTERATIONS.........................................................................................................................................217
STATUTORY DECLARATION..................................................................................................................218
DEPOSITIONS.........................................................................................................................................218
ADJOURNMENTS...................................................................................................................................219
Failure to file a defence........................................................................................................................220

CHAPTER SIXTEEN..............................................................................................................222
JUDGMENT AND DECREES..................................................................................................................222
Final judgments and interlocutory judgment...........................................................................................222
An Ex-parte Judgment..........................................................................................................................223
Consent Judgment................................................................................................................................223
Who makes the Judgement...224
Form and Contents of Judgment..........................................................................................................224
DECREE...................................................................................................................................................225
Mistakes in Judgment...........................................................................................................................227
Judgment valid until set aside..............................................................................................................228
Judgment to be obeyed without delay..................................................................................................229
Foreign Judgements..229
REMEDIES AFTER JUDGMENT............................................................................................................229
Stay of execution...................................................................................................................................231
Procedure of stay of execution..............................................................................................................232
Automatic stay of execution..................................................................................................................232
Payment in installments........................................................................................................................233
Objector Proceedings233

CHAPTER SEVENTEEN........................................................................................................235
EXECUTION OF DECREES...................................................................................................................235
The parties to an Execution..................................................................................................................235
Procedure for Execution...236
Property liable to attachment...............................................................................................................238
Examination of Judgment Debtor.........................................................................................................238
Arrest and Detention............................................................................................................................239
Execution by way of Attachment.240
Possession241
Sale..241
Wrongful and IrregularExecution.........................................................................................................243
Receiver by way of Equitable Execution.............................................................................................243
Execution against Government.............................................................................................................243
Procedure..............................................................................................................................................244
Execution against Local Governments.245
Enforcement of Foreign Judgments......................................................................................................245
Judgment obtained by fraud.................................................................................................................246
GARNISHEE/ATTACHMENT OF DEBTS...............................................................................................246
When garnishee can be instituted.........................................................................................................246
Procedure..............................................................................................................................................247
Effect of the Order................................................................................................................................247
Order Absolute......................................................................................................................................248

CHAPTER EIGHTEEN...........................................................................................................249
COSTS......................................................................................................................................................249
Introduction..........................................................................................................................................249
Who is entitled to costs.250
Costs interpartes...................................................................................................................................251
Costs in Interlocutory Proceedings.......................................................................................................251

ix

Costs in the cause.................................................................................................................................251

Plaintiffs costs in cause.......................................................................................................................251
Defendants costs in cause....................................................................................................................251
Cost of Costs in any event....................................................................................................................252
Costs thrown away................................................................................................................................252
Costs reserved.......................................................................................................................................252
No order as to costs..............................................................................................................................252
Counsel to pay costs.............................................................................................................................252
THE TAXATION PROCESS.....................................................................................................................252
Appeal on Taxation...............................................................................................................................253
Costs between Advocate and Client......................................................................................................253
Principles to be observed in fixing costs..............................................................................................256
Factors to be considered by taxing officer............................................................................................256
Discretion of Taxing Officer257
Costs to more than one Advocate258
Change of Advocates258

CHAPTER NINETEEN...........................................................................................................260
APPEALS, REVIEW AND REVISION......................................................................................................260
Introduction..........................................................................................................................................260
Appellate Jurisdiction...260
Appellate Courts.................................................................................................................................2600
LEAVE TO APPEAL.................................................................................................................................262
Appealing against a refusal of leave.....................................................................................................263
Justification for the leave requirement.................................................................................................263
Procedure..............................................................................................................................................264
Appeals on matters of judicial discretion.............................................................................................264
Discretion in Interlocutory Matters......................................................................................................264
Time for appealing................................................................................................................................265
Application for extension of time..........................................................................................................265
Who may appeal...................................................................................................................................266
NOTICE OF APPEAL..............................................................................................................................266
MEMORANDUM OF APPEAL................................................................................................................268
RECORD OF APPEAL.............................................................................................................................270
THE HEARING........................................................................................................................................273
FINDINGS OF FACT...............................................................................................................................273
APPLICATIONS FOR LEAVE TO ADDUCE ADDITIONAL EVIDENCE ON APPEAL........................273
Second Appeal..274
THIRD APPEALS.....................................................................................................................................274
REVIEW....................................................................................................................................................275
Introduction..........................................................................................................................................275
WHO MAY APPLY....................................................................................................................................275
Conditions for Review..........................................................................................................................276
PROCEDURE...........................................................................................................................................276
REVISION.................................................................................................................................................277
POWER OF HIGH COURT.....................................................................................................................277
PROCEDURE...........................................................................................................................................278

CHAPTER TWENTY..............................................................................................................279
CONSTITUTIONAL LITIGATION...........................................................................................................279
Interpretation of Constitution...............................................................................................................279
Who may petition..................................................................................................................................279
Interpretation of Constitution against other legislation........................................................................280
Form and Content of the Petition.280
Answer by Respondent.283
ENFORCEMENT OF RIGHTS................................................................................................................284
Form and Content of the Petition..285

CHAPTER TWENTY ONE.....................................................................................................287

x

JUDICIAL REVIEW PROCEDURE.........................................................................................................287

Introduction...287
APPLICATION FOR JUDICIAL REVIEW..............................................................................................287
Procedure..............................................................................................................................................287
Test for granting permission/leave...288
Challenging the grant of permission.289
Time for filing an application Judicial Review289
Grant of Leave to operate as a stay of proceedings.289
Mode of Applying for Judicial Review290
APPEALS..................................................................................................................................................299
CHAPTER TWENTY TWO300
HABEAS CORPUS PROCEDURE...........................................................................................................300
Introduction..........................................................................................................................................300
APPLICATION FOR THE WRIT.............................................................................................................301
Issue of the writ....................................................................................................................................301
Return of the writ andAppeals..............................................................................................................302
Appeals.....302
CHAPTER TWENTY THREE...307
ELECTION PETITIONS PROCEDURE.307
Election Petitions Rules..307
General Principles of Elections..307
Challenging a Presidential Election308
Mode of Presentation of Election Petition.308
Service of Petition..308
Answer of Respondent to Petition...309
Evidence at trial..309
Burden and Standard of Proof.309
Challenging a Parliamentary or Local Government Election..310
Form and Content of Petition..310
Who may present a Petition.313
Who may be respondent..313
Service of Petition314
Answer of Respondent to Petition...314
Time for Presentation of Election petition..316
Burden and Standard of Proof.317
Withdrawal of Petition318
Appeals.318
Memorandum of Appeal..318
Record of Appeal..318
INDEX

BIBLIOGRAPHY..

xi

TABLE OF CASES
1.

A.G vs Shah (No4) [1971] EA 50

2.

A.G vs. Musisi [1972] EA 217

3.

A.G. vs Khatoon C Satchu [1960] EA 505

4.

A.G. vs. M Heida SCCA No.5 of 1988

5.

A.L vs Khatoon Cassam [1960] EA 507

6.

Abby Mugimu vs. Luciano Basabosa [1991] HCB 70

7.

Abdalla vs. Abdu [1977] HCB 244

8.

Abdu Serunjogi vs Sekitto [1977] HCB 242

9.

Abdul Wahib & Sons vs Mushiram & Co. (1932) 14 KLR 47

10.

Abdulla Jaffer Devji vs. Ali RMS Devji [1958] EA 558

11.

Abouloff vs Oppenheimer (1882) 10 QBD 295

12.

Acaali Manzi vs Nile Bank Ltd. CS No. 87/93 [1994] KALR 123

13.

Administrator General vs Uganda Posts and Telecommunications [1993] IV KALR 106

14.

Adonia vs Mutekanga [1970] EA 422

15.

Aeronave SPA vs. Westland Charters Ltd. [1971] 1 ALL.ER 531

16.

Afric Co-operative Society vs Uganda Railways Corporation [2002] EA 1

17.

African Overseas Trading Company vs. Acharya [1963] EA 468

18.

Aggarwal vs Official Receiver [1967] EA 585

19.

Agnes Nanfuka Kalyango &15 Others vs Attorney General &Masaka District Administration
CACA 64 of 2000

20.

Al Hajj Nasser N. Ssebaggala vs Attorney General & others Constitutional Petition No.1 of
1999

21.

Alexander vs Rayson [1936] 1 KB 169

22.

Ali Mustafa vs. Sango Bus Co. [1975] HCB 93

23.

All Ports Freight Service (U) Ltd. vs Julius Kamanyi HCCS No.409 of 1995 [1996] 1 KALR
128

24.

Allah Ditta Qureshi vs. Patel (1951) 18 EACA 1

25.

Allen vs. Sir Alfred Mc Alpine and Sons Ltd. [1968] 1 ALL.ER 543

26.

Allen vs. Waters & Co. [1935] 1 KB 200

27.

Allidina vs Allidina [1961] EA 565

28.

American Cyanamid Co. Ltd. vs. Ethicon Ltd. [1975] AC 396

29.

American Express International Banking Corp. vs. Atulkumar Patel CACA No.8 of 1986

30.

Amon vs. Raphael Tuck & Son Ltd. [1956] 1 QB 357

31.

Among

Annet

Anita

vs

Electoral

Commission

&

Hon

Akol

Rose

Okullu

H.C.Misc.Application No.47 of 2006

xii

32.

Amos Mugisha and others vs DAPCB [1990] KALR 38

33.

Amos vs. Chardwick (1879) 9 CHD 459

34.

Animal Feeds vs A.G H.C.C.S 788 of 1990

35.

Anlaby vs Praetorius (1888) 20 QBD

36.

Arnold vs. Central Electricity Generating Board [1988] AC 288

37.

Arthur vs. Nyeri ElectricityUndertaking [1961] EA 492

38.

Arutu John vs. Attorney General Constitutional Petition No.4 of 1997

39.

Asadi Weke vs Livingstone Ola [1985] HCB 50 52

40.

Ashley v Taylor (1878) 10 CHD 768

41.

Ashworth vs Roberts (1890) 45 CH D 623

42.

Assanand and Sons (Uganda) Ltd vs East African Records Ltd [1959] EA 360

43.

Associated Drivers and Operators Defensive Institute for Taxi and Traveler Agencies
(ADDODITA) vs. UTODA and Masaka Municipality Council Misc. Appl. Arising out of
HCCS 451/1998

44.

Astroulanis Compania Naviera SA vs. Linard [1972] 2 QB 611

45.

Athanasius K.Lule vs Hon.Emmanuel Pinto Constitutional Petition No.5 of 1997

46.

Attorney General vs. Milton Obote Foundation SCCA No. 7 of 1992

47.

Attorney General of the Bahamas vs. Royal Trust Co. [1986] 3 ALL ER 423

48.

Attorney General vs Uganda Blanket Manufacturers (1973) Ltd SCC.App No.3 of 1993

49.

Attorney General vs. Newspaper Publishing, Attorney General vs. The Independent [1987] 3
ALLER 276

50.

Attorney General vs. Observer: Application by Derbyshire County Council [1988] 1 ALLER
385

51.

Attorney General vs. Silver Springs Hotel SCCA No. 1 of 1989 (unreported)

52.

Auto Garage & Others vs. Motokov [1971] EA 514

53.

Automatic Wood Turning Co. vs. Stringer 1975] AC 544

54.

Avon County Council vs. Howlett [1983] 1 WLR 805

55.

Azziz vs Pajabo [1977] HCB 36-37 68

56.

B. M Dhanji vs Lulu & Co. [1960] EA 541

57.

B.E.A. Timber Co. vs. Inder Singh Gill [1959] EA 463

58.

B.M Technical Services vs Francis X Rugunda [1997] HCB 75

59.

Babizalirwa vs. Buyanja [1989] KALR 155

60.

Baguma vs. Kadoma [1979] HCB 340

61.

Bailey vs. Bailey [1981] 3 ALLER 495

62.

Bains vs Hahmibibi [1957] EA 13

63.

Bakiri vs. Akamba Republic Bus Service [1976] HCB 323

64.

Balenzi vs. Wanderi [1991] HCB 58

xiii

65.

Bank of Ethiopia vs. National Bank of Egypt & Liguori [1937] CH 513

66.

Bank of India Ltd. vs. Shah [1965] EA 18

67.

Bank of Russian Trade Ltd. vs British Screen Productions Ltd. [1930] 2 KB 90

68.

Bank of Uganda vs Banco Arabe Espaniol S.C.C.App No.23 of 1999

69.

Bankers Trust Co. vs. Shapira[1980] 3 ALL.ER 353

70.

Bankers Trust Co. vs. Abdul Gatif Galadan [1987] QB 222

71.

Banque Belge Pour LEtranger vs. Hambrouck [1921] 1 KB 321

72.

Banque Keyser Ullmann S.A vs Skandia (KU) Insurance Co. [1991] 2 AC 249

73.

Barclay vs. Johnson Yuill [1980] 3 ALLER 190

74.

Barclays Bank of Swaziland vs. Hahn [1989] 1 WLR 506, HL

75.

Barclays Bank vs. Shams Udin [1973] EA 451

76.

Barker vs Lavery (1885) 14 QBD 769

77.

Barker vs. Allanson [1937] 1KB 463

78.

Barnado (Thomas John) vs Ford (Mary) [1892] AC 326

79.

Barnes vs B.P.C. (Business Forms) Ltd. [1975] 2 W.L.R 1565

80.

Barugahare vs A.G. [1990-91] KALR 34

81.

Barugahare vs A.G. SCCA No.28 of 1993

82.

Batemuka vs Anywar [1987] HCB 71

83.

Batemuka vs. Anywar & another [1987] HCB 71

84.

Battam vs Kampala African Bus Company [1959] EA 328

85.

Battersby vs. Anglo American Oil Co. Ltd. [1945] KB 23

86.

Bauman (U) Ltd vs Serwanga [1975] HCB 86

87.

Bauman (U) Ltd. vs Serwanga [1975] HCB 75 76

88.

Bawa Ltd. vs. Didar Singh [1961] EA 282

89.

Baxi vs Bank of India Ltd. [1966] EA 130

90.

Baxter vs. France [1922] ALL ER 279 at 281

91.

Bazira Construction & Engineering Works Ltd vs E.A. Steel Corporation [1992-1993] HCB
220

92.

Beatrice DSouza vs Sachodina [1964] HCB 117

93.

Beatrice Kobusingye vs Fiona Nyakana and another SCCA No. 18 of

94.

Beese vs. Wood House [1970] 1 WLR 586 at 590

95.

Beliram vs Salkand (1954) 27 KLR 28

96.

Beliram vs Salkand (1954) 27 KLR 28

97.

Bendino vs Kamanda [1977] HCB 311

98.

Bendino vs Kamanda [1977] HCB 311

99.

Benetts & Co. vs. Mciiwraith & Co. [1896] 2 QB 464

2001

xiv

100.

Benon Turyamureba and 132 others vs. Attorney General Kabarole District HCCS No. of
1992

101.

Benow vs. Low (1880) 13 CHD 553

102.

Beoco Ltd vs Alfa Laval Co.Ltd [1995] QB 137

103.

Besterman vs. British Motorcar Ltd. [1914] 3 KB 181

104.

Besterman vs. British Motorcar Ltd. [1914] 3 KB 181

105.

Bhag Bhari vs. Mehdi Khan [1965] EA 94

106.

Bhatt vs Singh [1962] EA 104

107.

Bhatt vs Tejwant Singh [1962] EA 497

108.

Bibonde vs. Waiswa [1974] HCB 21

109.

Biiso vs Tibamwenda [1991] HCB 92

110.

Birkett vs James [1978] AC 297

111.

Birmingham & District land Commission vs. London North Western Railway Co. (1886) 34
CHD 261

112.

Birungi Wilson vs Akamba (U) Ltd. SCCA 12/94 [1995] 1 KALR 50

113.

Biss vs. Lambeth, Southwark and Lewisham Area Health Authority (Teaching) [1978] 1 WLR
3

114.

Bisuti vs Busoga District Administration [1971] 1 ULR 179.

115.

Bitaitana vs Kananura [1979] HCB 34

116.

Bitarabeho Christine vs Dr.Edward Kakonge CACA No.4 of 1999 [1997] HCB 55

117.

Blay vs. Polland and Morris [1930] 1 KB 628

118.

Bloor vs Liverpool Derricking and Carrying Co. Ltd. [1936] 3 ALLER

119.

Blyth -Vs- Blyth [1966] AC 643

120.

Bolt & Nut Co. (Tipton) Ltd. vs. Rowlands,Nicholls & Co. Ltd. [1964] 1 QB 10

121.

Bolton vs. Salim Khambi [1958] EA 360

122.

Bombay Flour Mills vs Patel [1962] EA 803

123.

Borrows vs. Ellison [1871] LR 6 Exch. 128

124.

Bowring & Bandburys Trustee vs. Bowring Handbury [1943] 1 ALL.ER 48

125.

Bradley Egg Farm Ltd. vs. Clifford [1943] 2 ALL ER 378

126.

Bremer Vulkan vs South India Corp Ltd [1981] AC 909

127.

Brinks Ltd. vs Abu Saleh [1995] 4 ALLER 65

128.

British East Afrcia Corp (1939) vs Ladha (1938-39) 18 KLR 66

129.

British General Insurance Co. Ltd. vs. Moshanlul Sulank CACA No. 30 of 1997

130.

British India General Insurance Co. Ltd. vs. G.M. Pharma & Co. [1966] EA 172

131.

Brooke Bond Liebig T Ltd. vs Mallya [1975] EA 266

132.

Brother Peter vs A.G. [1980] HCB 107

133.

Broughton vs. Snook [1939] CH 505

xv

134.

Brown, Shipley & Co. Ltd. vs Alicia Hosiery Ltd. [1966] Lloyds Rep. 668

135.

Buckle vs. Holmes [1926] 2 KB 125

136.

Budai Coffee hulling Factory Ltd. vs. Babumba [1963] EA 613

137.

Bugerere Coffee Growers vs. Sebaduka [1970] EA 147

138.

Bukenya vs. Administrator General [1990-91] KALR 52

139.

Buladina Nankya vs. Bulasio Konde [1979] HCB 239

140.

Bulenzi vs. Wandera [1990-91] 1 KALR 107

141.

Burkett vs. James [1978] AC 297

142.

Burstall vs. Beyfus (1884) 26 CHD 35 at 44

143.

Busch vs. Stevens [1963] I QB I

144.

Bushell vs Timson [1932] 2 KB 79

145.

Busicom System Ltd. vs Kirya [1991] HCB 67

146.

Buttes Gas and oil Co. vs Hammer (No.3)

147.

Byabasaija vs. A.G [1992] KALR 161

148.

Byanyima Winnie vs. Ngoma Ngime HC Civil Revision 0009 of 2001

149.

Byekwaso vs. Mohamed [1973] HCB 20

150.

Byrne vs Ireland and Attorney General [1972] IR 214

151.

Camille vs. Merali [1966] EA 411

152.

Campagnie Financiere vs. Peruvian Guano Co. (1882) 11 QBD 55

153.

Campbell vs. Thompson [1953] 1 ALL ER 831

154.

Caroline Mboijana &Others vs James Mboijana SCCA No.3 of 2004 [2005] 2 ULSR 1

155.

Castelino vs. Rodrigues [1972] EA 233

156.

Cayne vs. Global Natural Resources Plc [1984] 1 ALL.ER 225

157.

Central Masaka Coffee Co. vs. Masaka Farmers and Producers Ltd. [1991] ULSLR 220

158.

Channel Tunnel Group Ltd. vs. Balfour Bealty Construction Ltd. [1993] AC 334

159.

Chapple vs. Electrical Trade Union [1961] 1 WLR 1290

160.

Charles James Mark Kamoga &Anor vs A.G &ULC CACA No.74 of 2002

161.

Charles Kabagambe vs Uganda Electricity Board Constitutional Petition No.2 of 1999

162.

Charles Lwanga vs. Centenary Rural bank SCCA No. 33 of 1999

163.

Charles Mpiima vs. Attorney General HCCS No. 980/1990 [1990-1991] 2 KALR 54

164.

Charles Onyango Obbo vs. Attorney General Constitutional Petition No.15 of 1997

165.

Chief Constable of Kent vs. V. [1983] QB 34

166.

Christopher Kayoboke vs. Amos Agaba & Others H.C.C.S No. 630 of 1991

167.

City African Textile Shop (U) Ltd vs Jan Mohamed Ltd H.C Misc.Application No. 437 of
2002 arising from HCCS No. 304 of 1994

168.

Cleaner Home Ltd. vs British Tutorial College (Africa) Ltd. [1975] EA 323

169.

Clifton Securities Ltd. vs Huntley [1948] 2 ALLER 283

xvi

170.

Clouds 10 Ltd. vs. Standard Chartered Bank (U) Ltd. SCCA 35 of 1992

171.

Coffee Marketing Board vs Kizito [1992-93] HCB 175

172.

Cohen Vitate vs Hale [1878] 3 QBD 371

173.

Col (RTD) Dr. Besigye Kizza vs Museveni Yoweri & Electoral Commission Supreme Court
Election Petition No. 1 of 2001

174.

Compania Navierra Vascon Gada vs SS Christina [1938] 1 ALL ER 719

175.

Construction Engineers and Builders vs A.G. HCCS 1155/85

176.

Cooke vs. Gill [1873] LR 8CP 107

177.

Copthall Strores Ltd. vs. Willoughbys Consolidated Co. [1916] AC 167

178.

Corporate Insurance Co Ltd vs Savemax Insurance Brokers Ltd [2002] 1 EA 41

179.

Cotwu (T)-Ottu Union and Anor vs Hon.Iddi Simba, Minister of Industries and Trade and 7
Others High Court Miscellaneous Civil Cause No.100 of 1999(25-05-2000)

180.

Craigmyle vs. Inchcape [1942] 1 CH 394

181.

Creatanor Maritime Co. Ltd. vs. Irish marine Management Ltd. [1978] 1 WLR 966

182.

Creatanor Maritime Co. Ltd. vs. Irish Marine Management Ltd. [1978] 1 WLR 966

183.

Credit Finance Corporation Ltd. vs. Karmari [1965] EA 545

184.

Cresensio Mukasa vs Zaverio Mukasa HCCS No. 921/89

185.

Cresta Holdings Ltd. vs. Karlin [1959] 3 ALLER 656

186.

Cronta vs. Afro Trade Promoters Ltd. [1978] HCB 238

187.

Cropper vs. Smith (1884) 26 CHD 700

188.

Czeczowizca vs Markins (1936) 3 EACA 5

189.

D.A.P.C.B vs. Kayondo [1982] HCB 17

190.

DSouza vs Ferrao [1959] EA 1000

191.

Dalgleish vs Lowther [1899] 2 QB 590

192.

Daniel Mukwaya vs. Administrator General HCCS 630 of 1993 [1993]IV KALR 1

193.

Daniel Sempa Mbabali vs Kizza &Administrator [1992-93] HCB 243

194.

Darley Maine Colliery vs Mitchell (1886) 11 APPCAS 127

195.

Daudi Abdul vs Ahamed Suleman (1946) 3 EACA 54

196.

David Acar vs. Acar Aciro [1982] HCB 60

197.

David Kabungu vs Zikarenga H.C.Misc.Application No.36 of 1995 [1995] 3 KALR 48

198.

David Kayondo vs. Resty Nantongo HCCS No. 829 of 1993 [1994] VI KALR 114

199.

David Ongee vs. Rose K Ozia CACA No. 45 of 1999

200.

Davy vs. Garret (1878) 7 CHD 473

201.

De la Rue vs. Herny Person & Stockwell Ltd. [1930] 2 KB 164

202.

Deitsche Schachbau und Tiefbohrgesell Schaft MBH vs Ras Al Khaima National Oils
Co. [1988] 2 ALLER 833

203.

Delia Almeida vs. C. Almeida SCCA No.15 of 1990

xvii

204.

Departed Asians Property Custodian Board vs Jaffer Brothers Ltd [1999] 1 EA 55

205.

Det Danske Hedel Skabet vs KDM International PLC [1994] 2 Lloyds Rep. 534

206.

Devji vs. Jinabhai (1934) 1 EACA 87

207.

Devshi vs. Diamond Concrete Co. [1974] EA 493

208.

Dharansy Mararji and Sons Ltd. vs. S.N. Kara SCCA No. 27 of 1996

209.

Diamond Concrete vs Patel [1969] EA 518

210.

Dick vs. Koinage [1973] EA 165

211.

Didisheim vs. London Westminster Bank [1900] 2CH 15

212.

Dirie vs. Richardson [1927] 1 KB 488

213.

Dolling-Baker vs Merrett [1990] 1 WLR 1205

214.

Donald Campbell & Co. Pollack [1927] AC 732

215.

Donnebaum vs. Mikolashek [1966] EA 25

216.

Doyle vs White City Stadium [1935] 1 KB 110

217.

Dr. James Rwanyarare & Another vs. Attorney General Constitutional petition No.11 of 1997

218.

Drane vs. Evangelou [1978] 1 WLR 455

219.

Dresdner Bank vs. Sango Bay No.4 [1971] 1 ULR 82

220.

Duke of Bedford vs. V.Ellis [1901] AC 1

221.

Durvesh vs Villain [1957] EA 91

222.

Dyke vs. Stephens (1885) 30 CH D 189 at 190

223.

E.A Plans Ltd. vs. Roger Allan Bickford [1971] HCB 225

224.

EA Plans vs Smith [1974] HCB 97

225.

EA. Airways vs Lewis [1969] HCB 20

226.

East African Roofing Co. Ltd. vs. Pandit (1954) 27 KLR 86

227.

East African Underwriters vs Civil Aviation Authority CACA No.8 of 2002

228.

East African Underwriters vs Civil Aviation Authority CACA No.8 of

229.

East and Southern African Development Bank (PTA) vs Concorp International Ltd CACApp

2002

No.78 of 2001
230.

Eastern Bakery vs. Castelino [1958] EA 461

231.

Eastern Province Bus Co. vs Bibi [1971] 1 ULR 88

232.

Eastern Radio service vs Tiny tots [1967] EA 392

233.

Eastern Radio Service vs. Patel [1962] EA 818

234.

Eastern Shipping Co. vs. Quah Bengkee [1924] AC 177 at 182

235.

Eddie Rodrigues vs The British High Commission H.C.C.A No.1 of 1993 [1993] 11 KALR 1

236.

Eden vs. Weardale Iron & Coal & Co. (1884) 28 CHD 333

237.

Edison and Swan Electric Light Co. vs. Holland (1889) 41 CH.D 28

238.

Egypt Air Corporation T/A Egypt Air Uganda vs Suffish International Food Processors Ltd
and Pan World Insurance Co. Ltd S.C.C.APP No. 14 of 2000

xviii

239.

Ejalu vs Uganda Railways Corporation [1994] 1 KALR 51(SC)

240.

Elizabeth Bameka vs. Dodovico Nviiri [1973] ULR 134

241.

Elkan vs Patel [1960] EA 340

242.

Ellis vs. Kerr [1910] 1 CH 529

243.

Ellis vs. Manchester Carriage Co. [1876] CPD 13

244.

Ellis vs. Wadeson [1899] QB 714

245.

Emmanuel vs. Emmanuel [1982] 1 WLR 669

246.

Engola vs Acire [1992-93] HCB 233

247.

Epaineto Mubiru vs. U.C.B [1971] 1 ULR 144

248.

Epaineto Mubiru vs. U.C.B [1971] HCB 226

249.

Ephraim Ongom vs. Francis Benega S.C.C.A No. 10 of 1987

250.

Eriasaferi Mudumba vs Wilberforce Kuluse Court of Appeal Civil Application No.34 of 1997

251.

Eridad Otabong vs. A.G. SCCA 6/1990 [1991] ULSLR 150

252.

Erimiya Serunkuma vs. Elizabeth Nandyose [1959] EA 127

253.

Erisa Rainbow Musoke vs. Ahamada Kezaala [1987] HCB 81

254.

Eruikana Omuchilo vs. Ayub Machiwa [1966] EA 229

255.

Esso Petroleum Co. Ltd. vs Southport Corporation [1956] AC 218

256.

Esso Standard (U) Ltd vs Mike Nabudere HCCS No.594 of 1990 [1992] KALR VI 40

257.

Etablissement Esefka International Ansalt vs. Central Bank of Nigeria [1979] 1 Lloyds Rep
445

258.

Etablissment Baudetot vs. Rs Grahams & Co. [1953] 2 QB 271

259.

Exparte Mersey Docks and Harbours [1899] 1 QB 646 at 551

260.

Fallon vs Calvert [1960] 2 QB 201

261.

Fam International Ltd. vs. Muhamed Hamid El Fathih SCCA No. 16/1993

262.

Famous Cycle Agency Ltd. vs. Mashulular Ramji H.C.C.S No. 88/1992 [1994] V KALR 58

263.

Farook Aziz (Administrator of Estate of Salima Kabasingo) vs Abdalla Abdu Maruku SCCA
No. 4 of 2002

264.

Fazal Dhirani vs. Abdul Mohamed Ismail Ganji (1946) 13 EACA 69

265.

Fellowes vs. Fisher [1975] 3 WLR 184 at 199

266.

Fenakasi Semakula vs Musoke [1981] HCB 46

267.

Fernandes vs. Kara Arjan & Sons [1961] EA 693

268.

Fielding & Platt Ltd. vs. Selim Najjar [1969] 1 WLR 357

269.

Finaughty vs Prinsloo [1958] EA 657

270.

Findlay vs. Railway Executive [1950] 2 ALLER 969

271.

Finnegan vs. Cementation Co. [1953] I QB 68

272.

Fleming vs. Dollar (1888) 23 QBD 388

273.

Flower vs Lloyd (1877) 6 CHD 542

xix

274.

Foods and Beverages vs Opoya [1994] III KALR 82(SCCA No.32 of 1992)

275.

Forester vs. British Railways Board 1996 The Times, 8 April

276.

Fox H Wood vs. Harrow Ltd. [1963] 2 QB 601

277.

Francis Nansio Micah vs Nuwa Walakira SCCA No.24 of 1994

278.

Francome vs. Mirror Group Newspapers [1984] 1 WLR 892 at 898

279.

Frank Makumbi vs. Kigezi African Bus Company Ltd. [1986] HCB 69

280.

Fred Mungecha vs A.G [1981] HCB 34

281.

Fredericks and Pelhams Timber Buildings vs. Wilkins [1971] 3 ALL ER 545 at 551

282.

Fxs. Miramago vs. Attorney General [1979] HCB 24

283.

G. M Combined (U) Ltd. vs. A.K. Detergents (U) Ltd. SCC App. No.23 of 1994

284.

G.P. Jani Properties vs. Dar es Salaam City Council [1966] EA 281

285.

Gaba Beach Hotel Ltd vs Cairo International Bank Ltd CACApp. No.34 of 2003

286.

Gaba Beach Hotel Ltd vs Cairo International Bank Ltd CACApp. No.34 of 2003

287.

Gairy vs Attorney General of Grenada [2000] W.L.R 779

288.

Gakwavu vs. Gasengayire [1977] HCB 322

289.

Galbraith vs Grim Shaw & Baxter Baxter [1910] 1 KB 339

290.

GAPCO vs. Muwanga Muhamed T/a Musa and Moses Services HCCS 84 of 1998

291.

Garden Cottage Foods Ltd. vs. Milk Marketing Board [1984] AC 130

292.

Gaso Transport Services (Bus) Ltd. vs. Martin Adala Obene SCCA 4/94 [1994] VI KALR 5

293.

General Manager EAR&H vs. Thiersten [1968] EA 354

294.

General Trading Co. Ltd. vs. Patel (1958) EA 702

295.

Getulida Nakiggudde vs A.G [1979] HCB 61

296.

Gibbons vs. West Minister Bank td. [1939] 2 KB 882

297.

Giella vs Cassman Brown &Co.[1973]EA 358

298.

Gillanis Modern Bakery vs Kuntner (1954) 21 EACA 123

299.

GL Baker Ltd. vs. Medway Building and Supplies Ltd. [1958] 3 ALLER 540

300.

GM Combined (U) Ltd. vs. A.K. Detergents (U) Ltd. SCCA No. 34 of 1994

301.

Godfrey Lwasa vs Attorney General Court of Appeal Civil Appeal No.33 of 2004

302.

Godrei, Foncard & Sons vs. Sinclair [1916-17] ALLER 898

303.

Gokaldas Laxilidas Tanna vs Sister Rose Muyinza HCCS No.707 of 1987 [1990-91] KALR
21

304.

Govindji Popatlal vs Narshidas M Bhudhdeo Supreme Court of Kenya Miscellaneous Civil

Case No.73 of 1960

305.

Grand Metropolitan Nominees (Nos. 2) Co. Ltd. vs. Evans [1993] 1 ALLER 642

306.

Greatovex vs. Shackle [1895] 2 QB 249

307.

Greene vs Secretary of State for Home Affairs [1942] AC 284

308.

Greenland Bank vs. FIBA (U) Ltd

xx

309.

Griebart vs Morris [1920] 1 KB 659

310.

Groom vs. Crocker [1939] 1KB 194. Bagot vs. Stevens, Scanlan & Co. Ltd. [1966] 1 QB 197

311.

Guinness PLC vs. Saunders [1990] 1 ALLER 652

312.

Gulamabbas vs Ebrahimsi [1971] EA 22

313.

Gurdial Singh Dhillion vs. Sham Kaur [1960] EA 795

314.

Habib Javer Manji vs. Vir. Singh [1962] EA 557

315.

Hagod Jack Simonian vs. Johar [1962] EA 336

316.

Haji Haruna Mulangwa vs Shariff Osman SCC Ref.3 of 2004 [2005] 1 ULSR 210

317.

Hajji Kyanda Shaban vs Deogratius Kamya CACA No.26 of 2002 [2005] 2 ULSR 81

318.

Hampstead and Suburban Properties Ltd. vs. Diomedous [1969] 1 CH 248 at 259

319.

Hanak vs. Green [1958] 2 QB 9

320.

Hansa (Nigeria Trading & Motor Company) vs Samuel Joseph (1966-67) 10 ENLR 136

321.

Hardie & Lane Ltd. vs. Chilterm [1928] 1 KB 563

322.

Hariral &Co. vs Buganda Industries [1960] EA 318

323.

Harnam Singh Bhogal trading as Harnam Singh and Co.vs Jadva Karsan (1953) 20 EACA 17

324.

Harold vs. Smoth (1860) 5 H & N 379 157 ER 1229

325.

Harrison vs Harrison & Others [1955] 1 ALL.ER 185

326.

Harrison-Broadly vs. Smith [1964] 1 ALL ER 867

327.

Hasham Meralli vs. Javer Kassam & Sons Ltd. [1957] EA 503

328.

Hasham Suleman vs. Sayani [1963] EA 603

329.

Hasmani vs Banque du Congo Belge (1938) 5 EACA 88

330.

Hassam Karim & Co. Ltd. vs. African Import & Export Central Corporation Ltd. [ 1960] EA
396

331.

Hassan vs. Hunt [1964] EA 201

332.

Hay vs Harracksingh (1960) 3 WIR 124 T & T

333.

Healy vs. Waddington & Sons Ltd. [1954] 1 ALL.ER 861

334.

Hennesey vs. Wright (No.2) (1888) 24 QBD 445

335.

Henry Kawalya vs J. Kinyankwazi [1975] HCB 372

336.

Henry Munyanganizi vs. General Machinery Ltd. HCCS No, 468 of

337.

Herbert vs. Vanghan [1972] 3 ALLER 122

338.

Hija Binti Hussein Bin Rashid vs MR De Souza and Co (1917-1918) 7 KLR 10

339.

Hill and Grant Ltd. vs. Hodson [1934] CH 53

340.

Hilton vs Sulton Steam Laundry [1946] 1 KB 1 at 81

341.

Hirani vs Kassam (1952) 19 EACA 131

342.

HM Kayondo vs. Somani Amirali HCCS No. 183 of 1994 [1995] IV KALR 78

343.

HMB Kayondo vs. A.G [1987] KA

344.

Hollis vs. Burton [1892] 3 CH 266

1983

xxi

345.

Home and Overseas Co. Ltd. vs Mentor Insurance Co. (UK) Ltd. [1989] 3 ALLER 74

346.

Hooton vs Dalby [1907] 2 KB 18

347.

Horizon Coaches vs Francis Mutabazi and 3 others SCCA No.20 of 2001

348.

Hormusji K. Hathadaru vs. Trustees for the Port of Eden Civil Appeal No. 790 of 1963

349.

Horra vs. Horra [1959] EA 423

350.

Howell vs Metropolitan District Rail Co. (1881) 10 Ch D 508

351.

Hubbard vs. Vosper [1972] 2 QB 84

352.

Hughes vs. Justin [1894] 1 QB 667

353.

Hunt Allied Bakeries Ltd. [1956] 3 ALLER 513

354.

Hutchison Telephone (UK) Ltd. vs. Ultimate Response Ltd. [1993] BCLC 307

355.

Ijala vs. Energo Project [1988-90] HCB 157

356.

In Re Coles and Ravensheer [1907] 1 KB 1

357.

In Re Dr. John Chrizestom Kiyimba Katto Miscellaneous Cause No. 29 of 1989

358.

In Re Messrs Katende Sempebwa HCCS NO.521 of 1996

359.

In Re Nakivubo Chemists (U) Ltd. [1979] HCB 12

360.

In Re Sheik Abdu K Ssentamu &another Constitutional Petition No.7 of 1998

361.

In Re Sir John Bagaire HCMA 261/94 [1995] V KALR 18

362.

In Re Theresa Kaddu [1980] HCB 115

363.

In Re: Albert &Others and The Minister for Finance &A..G Miscellaneous Application
No.908 of 2001(K)

364.

In Re: Albert Ruturi &Others and The Minister for Finance & A.G Misc.Civil Application
No.908 of 2001

365.

Independent Automatic Sales Ltd., vs. Knowles and Foster [1962] 3 ALLER 27

366.

India Vedeogram Association Ltd. vs. Patel [1991] 1 WLR 173

367.

Initial Services Ltd. vs. Puttervill[1967] 3 ALLER 145 at 148

368.

Inspector General of Government vs Gladys Aserua Orochi CAC App No. 90 of 2000

369.

Interfreight Forwarders (u) Ltd vs East African Development Bank [1994-95] HCB 54(SC)

370.

Interfreight Forwarders (U) Ltd. vs. EADB SCCA No.33/1993

371.

International Life Insurance Co. (UK) Ltd vs Amin Civil Application No.12 of 1968

372.

Interpool Ltd. vs Galani [1988] QB 738

373.

Ionian Bank Ltd. vs Couvre [1968] 1 WLR 781

374.

Iron and Steel wares Ltd vs C.W Martyr &Co. (1956) 23 EACA 175

375.

Isaac Busulwa vs Ibrahim Kakinda [1979] HCB 179

376.

Isaacs & Sons vs Salbstein [1916] 2 KB 139

377.

Isaacs V. Sons vs. Salsbstein [1916-17] ALL.ER 386

378.

Ismail Dabule vs Wildon Osuna Otwanyi [1992] I KALR 23

379.

J. Hannington Wasswa vs. M. Onyango Ochola [1992-1993] HCB 103

xxii

380.

J. Okello vs. U.N.E.B SCCA No. 12 of 1987

381.

J.B. Semukima vs. John Kaddu [1976] HCB 13

382.

Jadra Karsan vs. Harman Singh Bhogal (1953) 20 EACA 74

383.

Jaffer vs. Ssegane [1972] 2 ULR 108

384.

James Lamont & Co. Ltd. vs. Ptyland Ltd [1950] 1 KB 585

385.

Jan Mohamed Umerdin vs Hussein Armashi (1953) 20 EACA 41

386.

Jani Properties Ltd. vs. Dar es Salaam City Council [1966] EA 281

387.

Janor vs. Morris [1981] 1 WLR 1196

388.

Jenniffer Behange, Rwanyindo Aurelia, Paulo Bagenzi vs. School Outfitters (U) Ltd. CACA
No.53 of 1999

389.

Jingo vs. Kabingiza [1974] HCB 294

390.

Jjala vs. Energo Project [1988-90] HCB 157

391.

John Kafeero Sentongo vs Shell (U) Ltd & Uganda Petroleum Co.Ltd C.A.C.App No.50 of
2003

392.

John Peter Nazareth vs. Barclays Bank International Ltd. EACA 39 of 1976

393.

John William Kihuka & 2 others vs Personal Representative of Rt Rev Eric Sabiti [1995] V
KALR 79

394.

Johnson vs Moss &others [1969] EA 654

395.

Jolly Tugumisirize vs Zonabia Zinabweine Beinamaryo CACA No.16 of 2002

396.

Jones vs Richards (1885) 15 QBD 439

397.

Jones vs. National Coal Board [1957] 2 QB 55

398.

Joseph Ekemu & David Kadidi Kamwada vs. Uganda Constitutional Reference No. 1 of
2000

399.

Joseph Mpamya vs. Attorney General HCCS No. 21 1995 [1996] 11 KALR 121

400.

Josephine Nanteza vs. Masinga George Constitutional Petition No. 9 of 1998

401.

Josh vs. Uganda Sugar Factory Ltd. [1968] EA 570

402.

Jovelyn Byaruhanga vs Attorney General S.C.C.A No. 28 of 1993

403.

Joweria Namaganda vs. Attorney General HCCS No.594 of 1992 [1996] II KALR 83

404.

Joy Kaigana vs Dabo Boubou [1986] HCB 59

405.

Jude Mbabali vs Hon Ssekandi & Electoral Commission Election Petition Appeal No.----of
2006

406.

Julius Emomeri vs Shell (U) Ltd CACA No.12 of 1999 [1998-2000] HCB 28

407.

Juma vs. Nyeko [1992] KALR 78

408.

K.C.C vs. Appolo Hotel Corporation [1985] HCB 77

409.

K.C.C vs. Appolo Hotel Corporation [1985] HCB 77

410.

Kabatoro vs Namatovu [1975] HCB 159

411.

Kabwengure vs. Charles Kanjabi [1977] HCB 89

xxiii

412.

Kabyesiza vs. Gold Trust Bank HCCS 32 of 1998

413.

Kafuma vs Kimbowa Builders and Contractors [1974] EA 91

414.

Kagenyi vs Musiramo [1968] EA 43

415.

Kaggwa vs. A.G [1971] HCB 333

416.

Kaggwa vs. Constaperaria [1963] EA 213

417.

Kaggwa vs. Sohan Singh & Co. [1972] HCB 273

418.

Kahiwa vs UTC [1978] HCB 316

419.

Kahuratuka vs. Mushorishori & Co. [1975] HCB 13

420.

Kaingana vs Daboboubou [1986] HCB 59

421.

Kalema Rhoda vs. D.A.P. C.B. HCCS No. 784 of 1990

422.

Kampala Bottlers vs. Damanico (U) Ltd. SCCA No. 22 of 1992

423.

Kamulegeya vs Iddi Kisiki Lubyayi Election Petition No.of 2006 at Masaka High Court

424.

Kamunye vs Pioneer General Assurance Society Ltd [1971] EA 263

425.

Kamurasi Charles vs. Accord Properties Ltd. SCCA No. 3 of 1996

426.

Kanabolic Group of Co. Ltd. vs Scoul Misc. appl. No. 653 of 1996

427.

Kanji Naran vs. Velji Ramji (1954) 21 EACA 20

428.

Kanorero River Form Ltd & 3 Others vs National Bank of Kenya Limited HCCS No.699 of
2001(K)

429.

Kapeeka Coffee Works Ltd. & Another vs. NPART CACA No.3 of 2000

430.

Karachi Gas Co.Ltd vs H Isaaq [1965] EA 42

431.

Karche vs. UTC [1967] EA 774 Uganda Wholesalers Ltd. vs. Impex House Ltd., [1971]
HCB 245

432.

Karia vs. Wambura [1961] EA 91

433.

Karim Hirji vs Pan African Insurance Co. [1990-91] KALR 184

434.

Karsales (Harrow) Ltd. vs. Wallis [1956] 2 ALLER 866

435.

Karshe vs Uganda Transport Company [1967] EA 774

436.

Kasana Produce vs. Kato [1973] EA 190

437.

Kashibai vs. Sempagama [1967] EA 16

438.

Kasirye, Baruhanga & Co. Advocates vs. U.D.B. SCCA No.2 of 1997

439.

Kasozi Ddamba vs Male Construction Services Co. [1981] HCB 26

440.

Kasule vs Makerere University [1975] HCB 276

441.

Kasule vs Muhwezi [1992-93] HCB 212

442.

Katarakwire vs. Lwanga [1988-90] HCB 86

443.

Katikiro of Buganda vs. A. G. Uganda [1958] EA 765

444.

Kato vs Kantinti [1985] HCB 97

445.

Katuntu Abdu vs Kirunda Kivejinja & Electoral Commission Election Petition No..of 2006

446.

Katuramu vs Maliya [1992-1993] HCB 161

xxiv

447.

Kaur vs. City Auction Mart Ltd. [1967] EA 108

448.

Kawooya vs TUMPECO [1974] HCB 68

449.

Kawoya vs Naava [1975] HCB 314

450.

Kayondo vs Cooperative Bank CA 10/91

451.

Kayondo vs. A.G. [1988-90] HCB 127 [1989] KALR 37

452.

Kazzora vs Rukuba [1992] III KALR 51 57 (SC)

453.

Keary Developments Ltd. vs Tarmac Construction Ltd. [1995] 3 ALL.ER 534

454.

Kedi vs. A G [1991] HCB 110

455.

Ketteman vs Hansel Properties Ltd [1987] AC 189

456.

Khiddu Musisi vs. Iyamulemye [1964] HCB 81

457.

Kibirige vs. Nkalubo [1970] HCB 199

458.

Kiggundu vs Attorney General SCCA 27 of 1992

459.

Kiggundu vs. Kasujja [1971] HCB 164

460.

Kimera vs. Jiwani [1971] ULR 194

461.

Kinyakwanzi vs Hezekia K Naugga HCCA No. 583 of 1973

462.

Kirby vs. Leather [1965] 2 QB 367

463.

Kirking vs British Rail Engineering Ltd. [1983] 1 WLR 1165

464.

Kirpal Singh & Sons Ltd. vs. Mamba Point Ltd. H.C.C.S. No. 1167 of 1998

465.

Kitumba vs. Karibwire [1981] HCB 71

466.

Kityo vs Kaddu [1982] HCB 58

467.

Kivamukuteesa Consumers vs. Ssebugwawo [1986] HCB 61

468.

Kiyimba Kaggwa vs. Haji A. N. Katende [1985] HCB 43

469.

Kizito Conrad vs National Medical Stores Civil Suit No. 819 of 1998

470.

Knight vs. Abbott (1883) 10 QBD 11

471.

Kohli vs. Popatlal [1964] EA 219

472.

Komiswa vs. Rwahulembe [1971] HCB 50

473.

Korutaro vs. Makairu [1975] HCB 215

474.

Korutaro vs. Mukairu [1975] HCB 215

475.

Kudunga vs. NIC [1977] HCB 243

476.

Kulsumbhai G J Ranji vs. Abdulsein Kalim [1957] EA 699

477.

Kundalal Restaurant vs Devshi (1952) 19 EACA 77

478.

Kuwait Airways Corporation vs Iraqi Airways Co.& Others [1995] 3 ALL.ER 694

479.

Kwabena Oduro vs Daniel Francis (1952) 14 WACA 46

480.

Kyamanywa Simon vs. Uganda Supreme Court Criminal Appeal No. 16 of 1999

481.

Kyambadde vs. Mpigi District Administration [1983] HCB 44

482.

Kyobe Ssenyange vs Naks [1980] HCB 30

483.

Ladak A M Hussein vs. Griffiths Isingoma Kakiiza SCCA No. 8 of 1995

xxv

484.

Ladd vs. Marshall [1954] 1 WLR 1489 at 1491

485.

Lalji & Sons vs Hassinali Devji [1969] EA 439

486.

Lalji vs. Devji [1962] EA 306

487.

Langdale vs. Danby [1982] 1 WLR 1123 at 1133

488.

Latch Vs Latch [1875] LR 10 Ch. 464

489.

Laurie vs Raglan Building Co. Ltd [1942] 1 KB 155

490.

Lawrence David Ltd. vs. Ashton [1991] 1 ALL.ER 385

491.

Lawrence M. Kyazze vs. Eunice Busingye [1992] IV KALR 55

492.

Lawrence Muwanga vs Stephen Kyeyune C.A.CA No. 20 of 2000/S.C.C.A No.12 of 2001 on

19th June 2002

493.

Lawrence Muwanga vs Stephen Kyeyune S.C.C.A 12 of 2001

494.

Lazard Bros Co. vs. Banque Industriell de Moscou [1932] 1 KB 617

495.

Lea Fils Dreyfus vs. Clarke [1958] 1 WLR 300

496.

Legg vs. Inner London Education Authority [1972] 1 WLR 1245

497.

Levi Outa vs. UTC [1975] HCB 340

498.

Lima vs Opoka [1976] HCB 324

499.

Line vs Warren (1884)14 QBD 73

500.

Line vs Warren (1885) 14 QBD 548

501.

Linotype Hell Finance Ltd. vs Baker [1992] 4 ALL.ER 887

502.

Liska Ltd. vs. De Angelis [1969] EA 6

503.

Lock International Plc vs. Beswick [1989] ALL.ER 373

504.

Loi Bagyenda vs. Loyce Kikunja Bagyenda HCCS 424 of 1989 [1994] VI KALR 46

505.

Lomax vs Landells (1848) 136 ER 1374

506.

Lombard Banking Kenya Ltd. vs. Shah Bhaichand Bhagwanyi [1960] EA 969

507.

London Association for Protection of Trade vs. Greenlands Ltd. [1916] 2AC 15

508.

London City Agency Ltd. vs. Lee [1970] CH 597

509.

Lord Trustees vs. Great Eastern Railway [1908] 1KB 195

510.

Love vs. Pharaoh [1954] 1 ALL.ER 120

511.

Lovell & Christmas vs. Beauchamp [1894] AC 607

512.

Lt David Kabareebe vs Maj Prossy Nalweyiso C.A.C.A No.34 of 2003

513.

Lubega vs. Barclays Bank Civil Appeal 2/92

514.

Lucas vs Lucas and High Commissioner for India [1943] 2 ALLER 110

515.

Lucas vs Lucas and High Commissioner for India [1943] 2 ALLER 110

516.

Lukyamuzi vs. House and Tenant Agencies Ltd. [1983] HCB 74

517.

Luwero Green Acres Ltd. vs. Marubeni Corporation SCCA No. 19 of 1995

518.

Lyell vs Kennedy No.3 (1884) 27 Ch.D

519.

M vs Home Office [1994] 1 AC 377

xxvi

520.

M. B Automobiles vs. Kampala Bus Service [1966] EA 480

521.

Maber vs. Maber [1867] LR 2 Exch. 153

522.

Mabro vs. Eaglestar & British Dominions Insurance Co. [1932] 1 KB 485

523.

Macharia vs. Wanyoinke [1972] EA 264

524.

Maclaine Watson and Co. Ltd. vs International Tin Council [1987] 3 ALL.ER 787

525.

Magala vs Sempangi [1994] 1 KALR 93

526.

Magem Enterprises Ltd vs Uganda Breweries Ltd. HCCS No. 462 of 1991 [1992] V KALR
109

527.

Magon vs. Ottoman bank [1968] EA 136

528.

Mahomed Bin Shebai vs Ahmed Bin Mahomed (1906-1908) 2 KLR 107

529.

Makabugo vs. Francis Drake Serunjogi [1981] HCB 58

530.

Makhangu vs Kibwana [1995-98] 1 EA 175

531.

Makula International Ltd vs His Eminence Cardinal Nsubuga [1982] HCB 11

532.

Makumbi vs NIC [1979] HCB 230

533.

Malpseon vs. Masini (1879) 5 QBD 144

534.

Maluku Interglobal Trade Agency Ltd. vs. Bank of Uganda [1985] HCB

535.

Mandavia vs Rattan Singh [1968] EA 146

536.

Mandavia vs Singh [1965] EA 118 at 121

537.

Mangat vs. Sharma [1968] EA 620

538.

Manogeesingh vs. Airports Authority of Trinidad and Tobago (1993) 43 WIR 301

539.

Mareva Compania Naviera SA vs. International Bulk Carriers [1980] 1 ALL.ER 213

540.

Marginson vs. Blackburn Borough Council [1939] ALL.ER 273

541.

Maria Nalikka Mpinga &3 Others vs Arnest Sensarire & Others C.A Civil Application No.35

65

of 1999[1998-2000] HCB 42
542.

Market & Co. vs. Knight SS Co. [1910] 2 KB 1021

543.

Marren vs Dawson; Bentley & Co. Ltd. [1961] 2 QB 135

544.

Marriott vs. Chamberlain (1886) 17 QBD 154

545.

Martin vs. Martin & Co. [1897] 1 QB 429

546.

Masaba vs. Republic [1967] EA 488

547.

Masaka Farmers and Producers Ltd. vs. Aloysius Tamale [1992-93] HCB 203

548.

Masanga vs. Buganda Saw Mills [1973] 1 ULR 130

549.

Masling vs. Motor Hiring Co. [1919] KB 538

550.

Massa vs Achen [1978] HCB 297

551.

Matemba vs. Yamulinga [1963] EA 643

552.

Matembe vs Matemba [1968] EA 646

553.

Matico Store Ltd. vs. James Mbabazi HCCS 993 of 1993 [1995] III KALR 31

554.

Matovu vs. Singh [1973] HCB 113

xxvii

555.

Masiko Winfred Komuhangi vs Babihuga J. Winnie Election Petition No. 9 of 2002

556.

May vs. Childley [1894] 1 QB 451

557.

Mayers & Another Vs Akira Ranch[1969] EA 169

558.

Mbogo vs Shah [1968] EA 93

559.

Mercer vs Chief Constable of the Lancashire Constabulary [1991] 2 ALL.ER 504

560.

Meru Farmers Co-operative Union vs. Abdul Aziz Suleman No. 1 [1966] EA 436

561.

Metropole Pharmacy (U) Ltd. vs. Dr. Katumba [1975] HCB 19

562.

Meyer & Co. vs. Faber (No.2) [1923] 2 CH 421

563.

Midland Bank Trust Co. Ltd. vs. HCH Stubbs & Kemp [1979] CH 384

564.

Millibank vs. Millibank [1900] 1 CH 376 at 385

565.

Ministry of Defence of the Government of the United Kingdom of Great Britain and Northern
Ireland vs Joel Ndegwa Civil Appeal no.31 of 1982

566.

Mitchell Cotts Ltd vs Peter Mulira HCCS No.1471 of 1999

567.

Mitha vs. Ladak [1960] EA 1054

568.

Mohamed Alibhai vs. E.E.Bukenya Mukasa SCCA No.56 of 1996

569.

Mohamed Nyanzi vs. Ali Segane [1992-93] HCB 218

570.

Montgomery & Co. vs De Bulmes [1898] 2 QB 420

571.

Moore vs Peachay [1892] 8 TLR 406

572.

Moore vs Buchanan [1967] 1 WLR 1341

573.

Moore vs Lambeth County Court Registrar (No.2) [1970] 1 QB 560

574.

Morel vs. Earl of Westmorland [1903] 1 KB 64

575.

Moss vs. Malings (1886) 33 CHD 603

576.

Mparo General Contractors Ltd vs Uganda National Examinations Board C.A.C.App No.82
of 2004

577.

Mpinga &3 others vs Sensarire&4 Others C.A.C.App No.35 of 1999 [1998-2000] HCB 42

578.

Mubiru vs. Kayiwa [1988-90] HCB 80

579.

Mugabi vs Nyanza Textile Industries Ltd [1992-93] HCB 227

580.

Mugalura Mikiibi vs. Colline Hotel Ltd. [1984] HCB 35

581.

Mugenyi & Co. Advocates vs National Insurance Corporation CACA No.13 of 1984 [1992]
KALR 82

582.

Mugimu vs. BasaBosa [1991] ULS LR 191

583.

Mugo and Others vs. Wanjiru [1970] EA 481

584.

Muherya vs. Sekitoleko [1975] HCB 91

585.

Muhinga Mukono vs. Rushwa Native Farmers Co-op Soc. Ltd. [1959] EA 595

586.

Muir vs. Jenks [1913] 2 KB 412

587.

Mulindwa Birimumaso vs Government Central Purchasing Corporation CACA No.03 of 2002

588.

Mulondo vs. Semakula [1969] HCB 27

xxviii

589.

Multi Holdings vs. UCB [1972] HCB 234

590.

Munnet vs Morgan (1873) LR Ch. 361

591.

Munyagwa Nsibirwa vs Kamunyanguzi. [1977]HCB 55

592.

Musango vs Musango [1979] HCB 226

593.

Musiguzi Garuga vs Amama Mbabazi Election Petition Noof 2001 at Mbarara.

594.

Musitwa Herbert Mulasa vs Electoral Commission &Haji Jakira Mohamed Ssali

C.A

Election Application No.05 of 2006

595.

Musoke vs. Musoke [1988-90] HCB 98

596.

Musoke vs. East African Cotton Exporters [1976] HCB 33

597.

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

598.

Musurus Bey vs. Gadban [1894] 2 QB 352 CA

599.

Mutungirehi vs Rwangwade &Group CACApp No.18 of 1999[1998-2000] HCB 34

600.

Muwonge vs Attorney General [1967] EA 17

601.

Mwalimu Paul John Mhozya vs Attorney General (No.1) HCCC No.206 of 1993

602.

Mwatsahu vs. Maro [1967] EA 42

603.

M.B. Nandala Vs Fr. Lyding [1963] EA 706

604.

Nagendra Rao and co vs State of A.P AIR 1994 SC 2663

605.

Najeno vs Semwanga [1974] EA 332

606.

Nakalema vs Michalistanos EACA Civil Application No. 37 of 1976

607.

Nakana Muwayire vs. DAPCB [1987] HCB 91

608.

Nakandi vs. Mukasa [1991] ULSLR 101

609.

Namardashaker M Joshi vs. Uganda Sugar Factory [1968] EA 570

610.

Nambi vs. Bunyoro General merchants [1974] HCB 124

611.

Namboro vs. Kaala [1975] HCB 315

612.

Namuddu vs Admin.Gen [1975] HCB 220

613.

Namwandu vs Attorney General [1972] EA 108

614.

Nandala vs Lyding [1963] EA 706

615.

Nandaula vs Uganda Development Bank Ltd. HCCA No. 47 of 1992 [1992] 1 KALR 97

616.

Nangwe vs. Kuluma & Another HC Misc. Cause No.1 of 1988

617.

Nanjibhai Prabhudas vs Standard Bank [1968] EA 670

618.

Narshidas M Mehta & Co. Ltd. vs. Baron Verheyen [1956] 2 TLR 300

619.

Nasozi vs. Water Resources Development Ltd. [1972] HCB 210

620.

Nassan Wasswa and 9 others vs Uganda Rayon Textiles [1982] HCB 137

621.

Nassanga vs Nanyonga [1977] HCB 379

622.

Nassanga vs. Nanyonga [1975] HCB 279

623.

National Enterprise Corporation vs. Mukisa CACA No.42 of 1997

624.

National Pharmacy Limited vs Kampala City Council [1979] HCB 132

xxix

625.

National Pharmacy Ltd. vs. KCC Civil Appeal No. 29/79 [1979] HCB 256

626.

National Real Estate Finance Co. vs. Hassan [1939] 2 KB 61

627.

Neck vs. Taylor [1893] 1 QB 560

628.

Nekyon vs Sakundh HCCS 575/69

629.

Nelson Sande Ndungo vs Electoral Commission H.C Misc.App No.210 of 2006

630.

Nettleingham & Co. vs. Powell & Co. [1931] KB 1

631.

New Era Stores vs. Ocean Trading Co. [1950] 25 (1) KLR 53

632.

New Fenix Compagnie Anoyme DAssurances de Madrid vs. General Accident, Fire and Life
Assurance Corporation Ltd. [1911] 2 KB 619

633.

Nganga vs Kimani [1969] EA 67

634.

Nicholas Roussos vs. Gulam H.H. Virani SCCA No.3 of 1993

635.

Nicholson vs. England [1926] 2KB 93

636.

Nile Bank Ltd. vs Gomba Machinery & General Equipment Ltd. [1992] 1 KALR 68

637.

Nitco Ltd. vs. Hope Nyakairu [1992-93] HCB 135

638.

Njiramakwere vs Bitariho [1973] 1 ULR 66

639.

Nkambo vs Kibirige [1973] EA 102

640.

Noormuhamed Jan Muhamed vs. Kassamali Virji Madhani (1953) 20 EACA 8

641.

Norah Nakiridde Namwandu vs Hotel International Ltd [1987] HCB 85

642.

Norbury Natzio & Co. vs. Griffith [1918-1919] ALL.ER 225

643.

Norman vs Overseas Motor Transport Tanganyika) Ltd. [1959] EA 131

644.

Norwich Pharmacal Co. vs. Customs and Excise Commissioners.[1973] 2 ALL.ER 943

645.

Norwich Pharmacal Co. vs. Customs and Excise Commissioners [1973] 2 ALLER 943

646.

Notay Engineering Industries vs. Superior Construction and Engineering Ltd. HCCS No.
702 of 1989

647.

Nouvion vs Freeman (1889) 15 App. Cas 1

648.

Nova (Jerse) Knit Ltd. vs Kammgarn Spinnerei [1977] 1 WLR 713

649.

Nsereko vs. Taibu Lubega [1982] HCB 51

650.

Ntambi vs. AG [1992] V KALR 90

651.

Nuru vs Cresent Transportation Ltd SCCA No.6 of 2002

652.

Nyarbungu Tin Mines Ltd vs A.G [1972] ULR 92

653.

Nyiramakwere vs. Bitariho [1973] ULR 66

654.

Obango vs U.T.C [1975] HCB 118

655.

Obura vs Koome [2001] EA 177

656.

Obwolo vs Barclays Bank [1994] III KALR 101(CS, No.682 of 1995),

657.

Ochembe vs. Sentamu [1977] HCB 193

658.

Ochola vs Wasswa [1988-90] HCB 102

659.

Odd Jobs vs Mubia [1970] EA 476

xxx

660.

Odds vs Mabia [1970] EA 476

661.

Odongkara vs Kamada [1968] EA 210 also [1971] HCB 156

662.

Okiya vs. New O.K. Mill Ltd. [1987] HCB 53

663.

Okoli Ojiako vs Onwuma Ogueze [1962] 1 ALL NLR 58

664.

Oliso Emosingoit vs. E. Ibunyat and 2 others [1985] HCB 56

665.

Olwora vs U.C.C.U Ltd S.C.C.A No.25 of 1992

666.

Onama vs. Uganda Argus Ltd. [1969] EA 92

667.

Ondogkara vs. Kamada [1968] EA 210 [1971] HCB 156

668.

Ongom vs. Attorney General [1979] HCB 267

669.

Opika Opoka vs. Munno Newspaper [1990-91] KALR 15 at 17

670.

Oriental Diary vs De Souza (1948) 23 KLR 4

671.

Oriental Insurance Brokers Ltd. vs Transocean (U) Ltd. SCCA No. 55 of 1995

672.

Oriental Insurance Brokers Ltd. vs. Transocean (U) Ltd. HCCS 250/93

673.

Osotraco Limited Vs Attorney General HCCS No.1380 of 1986

674.

Otwani vs. Bukenya Salongo [1976] HCB 62

675.

Overseas Touring Co. (Road Services) Ltd. vs. African Produce Agency 1949 Ltd. [1962] EA
190

676.

Palmer vs. Guadagni [1906] 2 CH 494 at 497

677.

Pamba vs C.M.B [1975] HCB 369

678.

Pan African Insurance Co. vs Uganda Airlines [1985]HCB 53

679.

Parnell vs Walter (1890) 24 QBD 44

680.

Parr vs. Snell [1923] 1 KBI

681.

Parrot vs Sempala [1978] HCB 51

682.

Parry vs. Carson [1962] EA 515

683.

Patel vs. Star Mineral Water and Ice Factory [1961] EA 454

684.

Patel vs Patel [1958] E.A 743

685.

Patel vs Patel [1992-93] HCB 137

686.

Patel vs. Joshi (1952) 19 EACA 42

687.

Pathak vs. Mrekwe [1964] EA 24

688.

Patrick Rwekibira vs Muwagibu Kamya [1972] 2 ULR 166

689.

Paul Erongot vs N.P.A.R.T Civil Misc.Application No.17 of 1997

690.

Paul Gachanga Ndarua vs Republic & Others H.C Misc.App. No.508 of 2001(Kenya)

691.

Paul K. Ssemwogerere &Zachary Olum vs Attorney General SCCApp. No.5 of 2001

692.

Paul K.Ssemwogerere &Anor vs Attorney General Constitutional Petition No.3 of 1999

693.

Paul Kalule Kagodo vs Karolina Kyagaza [1979] HCB 136

694.

Peake vs. Carte [1916] 1 KB 652

695.

Pearson and Another vs. Naydler and others [1977] 1 WLR 899 at 906

xxxi

696.

Peco Arts Inc. vs. Hazlitt Gallery Ltd. [1983] 1 WLR 1315

697.

Pemberton vs Hughes [1899] 1 Ch 781 at 792

698.

Pereira vs. Bean Lands [1996] 3 ALLER 528

699.

Peter Mangeni t/a Makerere Institute of Commerce vs. Departed Asians Property Custodian
Board SCCA No. 13 of 1995

700.

Phillip vs D.P.P. [1992] 1 ALL.ER 664

701.

Phillips Higgins vs. Harper [1954] 1 KB 550

702.

Phillips vs. Phillips [1878] 4 QB 127 at 133

703.

Pim Bros vs. Coyle [1903] 2 KB 457

704.

Pinson vs. Lloyds and National Provincial Foreign Bank Ltd. [1941] 2 KB 72

705.

Pioneer Investment Trust Ltd. vs. Amarchand [1967] EA 458

706.

Pioneer Plastic Containers Ltd. vs. Commissioner of Customs and Excise [1967] 1 ALLER
1053

707.

Plant vs. Collins [1913] 1 KB 242

708.

Plastics Ltd. vs. Gordon Rossal Plastics Ltd. [1950] 1 ALLER 241

709.

Plaxenda Sembatya vs. Tropical Africa Bank SCCA No.6 of 1987

710.

Plotti vs Acacia Co. Ltd. [1959] EA 248

711.

Pollok House Ltd vs Nairobi Wholesalers Ltd (No.2) [1972] EA 175

712.

Ponjo vs. Toro African Bus Co. [1980] HCB 57

713.

Ponsiyano Semakula vs Susan Magala & Others [1979] HCB 89

714.

Porter vs. Freudenberg [1915] 1KB 857

715.

Porter vs. Porter (1888) 37 CHD 420

716.

Porzelack KG vs. Porcelack (UK) Ltd. [1987] 1 ALL.ER 1074

717.

Posho Mill vs Kenya sisal Estate [1962] EA 647

718.

Posts & Telecommunications vs. Terrazo Pavior [1973] EA 344

719.

Potgieter vs. Stumbert [1967] EA 609

720.

Premachandra Shenoi &Anor vs Maximor Oleg Petrovich CACApp 88 of 2003 arising from
CACA No.24 of 2002

721.

Premchand Raichand Ltd. vs Quarry Services Ltd. [1969] EA 514

722.

Premchand Raichand vs Quarry Services (No.3) [1972] EA 162

723.

Priamit Enterprises Ltd vs Attorney General S.C.C.A No.1 of 2001

724.

Prichard vs West Minister Bank Ltd. [1969] 1 WLR 547

725.

Prince JDC Mpuga Rukidi vs Prince Solomon Iguru SCCA No. 18 of 1994 [1996] 1 KALR 1

726.

Priscilla Wambi Mischek vs Samuel Thata & Others East African Court of Appeal C.A No.30
of 1976

727.

Pritam Kaur vs. R. Russell & Sons Ltd. [1973] QB 336

728.

Pro Kabinenda vs. Sterling Astaldi (U) Ltd. Civil Suit No. 369 of 1968

xxxii

729.

Professor Syed S.Huq vs The Islamic University in Uganda SCCA No.47 of 1995

730.

Purnell vs. Roche [1927] 2 CH 142

731.

Pushpa vs. Fleet Tramsport Co. [1960] EA 1025

732.

Pyarali Datardini vs. Anglo American Amusement Park (1930)

733.

Qualcast (Wolver Hampton) Ltd. vs. Haynes [1959] AC 743

734.

Quick Service Stores vs. Thakrar [1958] EA 357

735.

Quick services Stores vs Thakrar [1958] EA 700

736.

R vs Derby Magistrates Court, Ex-parte B [1996] AC 487

737.

R v Governor of Brixton Prison, exp Walsh [1985] AC 154

738.

R vs Governor of Canterbury Prison, exp Craig [1990] 1 WLR 126

739.

R vs Internal Revenue Commissioner ex.p National Federation of Small Tax Payers [1977]

4 ULR 28

AC.I
740.

R vs Secretary of State for the Home Department, exp Chinoy (1992) 5 Admin. L. Rep. 457

741.

R. vs. Kesington Income Tax Commissioners Exp. Princess Edmond de Polignac [ 1917] 1
KB 489

742.

Rabin vs Mendoza and Co. [1954] 1 WLR 271

743.

Radcliffe vs. Bartholomew [1892] 1 QB 161

744.

Rainbow vs Mooregate Properties Ltd [1975] 1 WLR 788

745.

Rajimpex vs National Textiles Board HCCS No. 1033 of 1986

746.

Ramjibhai vs Rattan Singh (1953) 20 EACA 71

747.

Raniga vs Jivraj [1965] EA 700

748.

Rank Film Distributors Ltd. vs. Video Information Centre [1982] AC 38

749.

Rank Film Distributors vs Video Information Centre[1981] 2 W.L.R 668

750.

Rasu Maritina SA vs. Pertam Bangan [1978] QB 644

751.

Ratcliffe vs Evans [1982] 2 QB 524 at 532

752.

Ratman vs. Cumarasamy [1964] ALL ER 933

753.

Rawal vs Mombasa Hardware Ltd. [1968] EA 392

754.

Re Barings Plc [1998] 1 ALL.ER 673

755.

Re Conman, Exparte Hyde (1888) 20 QBD 690

756.

Re Enoch and Zaretzky, Bock & Co. S Arbitration [1910] 1 KB 327

757.

Re Follows, Exparte Follows (1895) 2 QB 521

758.

Re H.B. [1904] 1 KB 94

759.

Re Kiwanuka [1977] HCB 42

760.

Re Lukana Okoth [1975] HCB 204-205

761.

Re M/s Lukeera and Co.Advocates Misc Cause No.76 of 1973/ [1978] HCB 198

762.

Re Martin (1882) 20 CHD 365

763.

Re Mercury Model Aircraft Supplies Ltd. [1956] 2 ALLER 885

xxxiii

764.

Re Revison, Exparte Greaves [1913] 2 KB 300

765.

Re Riddel Ex-parte Earl Strathmore (1888) 20 QBD 512, Re Chinery, Ex-parte Chinery
(1884) 12 QBD 342

766.

Re Russo Asiatic bank [1934] CH 720

767.

Re Theresa Kaddu [1980] HCB 115

768.

Re V.G.M. Holdings Ltd. [1941] 3 ALL.ER 417

769.

Re: Nakivubo Chemists (U) Ltd. [1977] HCB 311

770.

Ree Wilson and Wilson [1937] Ch. 675

771.

Reiding vs. Skyline Advertising (U) Ltd. [1971] HCB 166

772.

Reiding vs. Skyline Advertising (U) Ltd. (1971) HCB 166

773.

Re-Jokai Tea Holdings Ltd. [1992] 1 WLR 1196

774.

Reliable African Insurance Agencies vs. N.I.C [1979] HCB 58

775.

Renworth Ltd vs Stephensen [1996] 3 ALL.ER 244

776.

Republic of Costa Rica vs Strousberg (1880) 16 Ch.D 8

777.

Rhodes vs. Smethurst 1838 4M & W42 59

778.

Rhodes vs. Swithen Bank (1889) 22 QBD 577

779.

Ribeero vs Siqueira &Facho [1936] ALL.ER 916

780.

Ricci vs. Chow [1987] 3 ALL.ER 534

781.

Richmond vs. Branson & Son [1914] CH 968

782.

Robert Kavuma vs. M/s Hotel International S.C.C.A No. 8 of 1990

783.

Roberts vs. Plant [1895] 1 QB 597

784.

Robinson vs Chokolingo (1970) 10 WIR 407 (T&T)

785.

Robson vs Smith [1895)] 2 CH 118

786.

Rockwell International Corp vs Serck Industries Ltd. [1988] FSR

787.

Rodway Motors Ltd. vs Sunderji Gokaldas (1940) 1 ULR 51

788.

Rohini Damji Sidpra vs. Vijendra & Others SCCA No.48 of 1996

789.

Rohini Damji Sidpra vs Freny Damji Sidpra & Others SCCA No.60 of 1995

790.

Ronald Ndaula vs Hajj Nadduli Election Appeal..of 2007

791.

Rondeau Le Grand & Co. vs Marks [1918] 1 KB 75

792.

Rooks vs. Barnard [1972] AC 17

793.

Rose vs Humbles [1972] 1 WLR 33

794.

Royal Media vs Telkom Kenya [2001] 1 EA 210

795.

Rtd Col.Kizza Besigye vs Yoweri Museveni Kaguta & Electoral Comission Supreme Court
Presidential Election No.1 of 2001

796.

Rtd Col.Kizza Besigye vs Yoweri Museveni Kaguta & Electoral Commission Supreme Court
Presidential Election No.1 of 2006

797.

Runnacles vs Mesquita [1876] 1 KB 416

xxxiv

798.

Rwakasoro vs A.G [1982] HCB 40

799.

Rwantale vs. Rwabutoga [1988-90] HCB 100

800.

Ryan Investments Ltd and Another vs United States of America [1970] EA 675

801.

Ryan Investments vs U.S.A [1970] EA 675

802.

S. Kyobe Senyange vs. Naks Ltd. [1980] HCB 31

803.

Sabayaga Farmers vs. Mwita [1969] EA 38

804.

Sacchain Corp. Ltd. vs. Wild [1903] 1 CH 410

805.

Sadolin Paints vs. Wali Muhamed [1972] EA 395

806.

Sajjabi vs. Timber Manufacturers Ltd. [1978] HCB 202

807.

Sajjabi vs. Timber Manufacturers Ltd. [1979] HCB 202

808.

Salaman vs Warner [1891] 1 QB 734

809.

Salem A.H. Zaid vs Fraud H. Humeidan [1960] EA 92

810.

Salongo vs Nantengolola [1976] HCB 290

811.

Salongo vs Kasese Town Council [1992-93] HCB163

812.

Samuel Amoke Nyakeriga & Others vs The United Nations High Commission for Refugees &
Others H.C.Misc.Civil App No.638 of 2001

813.

Samuel N. Nkalubo vs. Rev. Daudi Kibirige [1972] 2 ULR 49 [1973] EA 102

814.

Sanjay Tanna &Electoral Commission vs Ofwono Yeri Apollo Election Application No.08 of
2006

815.

Sandar Mohamed vs. Charan Singh [1959] EA

816.

Sanderson vs. Blyth Theatre Co. [1903] 2 KB 535

817.

Sango Bay Estates Ltd. vs. Dresdner Bank AG [1971] EA 31 [1970] HCB 9

818.

Sanyu Lwanga Musoke vs. Galiwango SCCA No. 48/1995

819.

Sargent vs. Gautama [1968] EA 338

820.

Sarwan Singh vs. Karam Singh [1963] EA 423

821.

Sayikwo Muroma vs Yovan Kuko and Another [1985] HCB 68

822.

Schafennus vs. Goldberg [1916] 1KB 284 at 291

823.

Sebamala vs. Namirembe Diocese [1988-90] HCB 248

824.

Sebuliba vs Treasury Officer of Accounts. Misc. Application No. 127/92

825.

Sebunya vs Uganda Commercial Bank [1992-93] HCB 224

826.

Seif vs Shariff Muhamed Shatry (1940) 19 (1) KLR 9 at 10

827.

Sekitto vs. Nsambu [1987] HCB 50

828.

Sekyaya Sebugulu vs. Daniel Katunda [1979] HCB 46

829.

Selle vs Associated Motor Boat Co. Ltd. [1968] EA 123

830.

Selle vs. Associated Motor Boat Company [1968] EA 123

831.

Semakula vs Mugala [1979] HCB 90

832.

Semakula vs Musoke [1981] HCB 46

xxxv

833.

Sempa Mbabali vs. Kidza [1985] HCB 46 at 47

834.

Semukiima vs. Kaddu [1976] HCB 15

835.

Sendegeya vs. Masaka Co-operative Union [1992] KALR 89

836.

Sentamu vs UCB [1983] HCB 61

837.

Series 5 Soft Ware Ltd vs Clarke [1996] ALL.ER 853

838.

Serugo vs. A.G. and KCC Constitutional petition No. 14 of 1997

839.

Serunjogi vs Katabira [1988-90] HCB 1480

840.

Serwadda vs. Popular Tours & Travel Ltd. [1981] HCB 29

841.

Sewan Singh Bahra vs Halling Manzoor C.A.C.A No.27 of 1999 [1998-2000] HCB 37

842.

Sewanyana vs Martin Aliker SCCApp No.4 of 1991 [1992] KALR 118

843.

Shaban vs Karada Co. Ltd. [1973] EA 497 Re Yates Settlement Trusts [1954] 1 WLR 564

844.

Shaban Din vs. Parkesh Anand (1955) 22 EACA 48

845.

Shad, Ram Mohindra vs. B C Mohindra [1957] EA 708

846.

Shah vs A.G. (No.3) [1970] EA 543

847.

Shah Kachra Merag vs Gandhi & Co. [1957] EA 466

848.

Shah vs. Muhamed Haji Abdalla [1962] EA 769

849.

Shah vs. Patel [1961] EA 397

850.

Shaw vs. Shaw [1954] 2 QB 429

851.

Sheba Gold Mining Co. Ltd vs. Trunshawe [1892] 1 QB 674

852.

Sheik Binti Ali vs Halima Binti Said [1959] EA 500

853.

Sheik Juma vs. Dubat Farah [1959] EA 789

854.

Sherif Yusuf vs Phillip Kioko [1951] 24(2) KLR 75

855.

Shiv Construction Co. Ltd. vs. Endesha Enterprises Application SCCA App. No.15/92

856.

SIETCO vs Noble Builders Ltd. SCCIV App. No. 31 of 1995

857.

Singh vs Runda Coffee Estates Ltd. [1966] EA 263

858.

Sir Lindsay Parkinson & Co. Ltd. vs. Triplan Ltd. [1973] 1 QB 609

859.

Sir Robert Meggary quoted in Cayne vs. Global Natural Resouces PLC [1984] 1 ALLER
225 at 237

860.

Slade and Kempton (Jewellery) Ltd. vs N. Kayman [1969] 3 ALLER 786

861.

Smith vs. Wessels (1927-28) 11 KLR 51

862.

Smith vs. Betty [1903] 2 KB 377

863.

Smith vs. Buller [1875] LR P9 Eq 473

864.

Smith vs. Cardiff Corp [1954] 1 QB 210

865.

Smith vs. Davies (1884) 28 CHD 650

866.

Smith vs. Inner London Education Authority [1978] 1 ALL ER 411

867.

Societie Francaise d applications Commercial les et Industrielles sarl

vs.

Electronic

Concepts Ltd. [1976] 1 WLR 51

xxxvi

868.

Societie Generale vs J M Farina & Co. [1940] 1 KB 794

869.

Sokimpex Interstate (U) Ltd vs Eurafro General Import & Export Co.Ltd [1981] HCB 73

870.

Sorfracht (v/o) vs. Van Udens Sheepwaart en Agentuur Maatschapij (NV Gebr) [1943] AC
203

871.

Souza Figuerido Co. Ltd. vs Moorings Hotel Co. Ltd. [1959] EA

425

872.

Speeding vs. Fitz Patrick (1888) 38 CHD 410-414

873.

Spencer vs. Hemmerde [1922] 2 AC 507 at 534

874.

Squire vs. Squire [1972] 1 ALLER 891

875.

St. Benoist Plantations Ltd. vs. Jean Emile Adrien Felix [1954] 21 EACA 105

876.

Stanbic Bank (Uganda) Ltd vs Uganda Cros Ltd S.C.C.A 4 of 2004

877.

Standard Bank of South Africa vs Senkubuge [1960] EA 13

878.

Standard Chartered Bank (U) Ltd vs Grand Hotel Ltd CACA No.13 of 1999

879.

Standard Securities vs. Hubbard, Telesurance Third Party [1967] CH 1056 at 1059

880.

Stanely & Sons vs. Dobias & C. [1975] EA 84

881.

Stapeley vs. Annets [1969] 3 ALLER 1514

882.

State vs Superior Court 275 P.2nd 887,899 (Ariz 1954)

883.

Stewart vs. Gladstone (1879) 10 CHD 626 at 664

884.

Stooke vs. Taylor (1880) 5 QBD 569

885.

Stott vs. West Yorkshire Road Car Co Home Bakeries (third parties) [1971] 3 ALLER 534

886.

Struggle (U) Ltd. vs. Pan African Insurance Co. Ltd. [1990] KALR 46

887.

Stumberg & Another vs. Potgieter [1970] EA 323

888.

Sugar Corporation of Uganda Ltd. vs. Muhamud Tejan HCCS No.39 of 1993

889.

Sule Pharmacy Ltd. vs. The Registered Trustees of the Khoja Shia Hana Shari Jamat HCCS
No.30 of 1999 HC Misc. Appl. No. 147 of 1999

890.

Suleman vs. South British Insurance Co. Ltd. [1965] EA 66

891.

Sullivan vs. Ali Mohmed Osman [1959] EA 239

892.

Sunder Dass vs Municipal Council of Nairobi [1948] 15 EACA 33

893.

Suns Insurance Office vs. Galinsky [1914] 2 KB 545

894.

Surrendra Overseas Ltd. vs. Government of Sri Lanka [1977] 1 WLR 565

895.

Swansea Shipping co. vs. Duncan [1876] 1 QBD 644

896.

Symon & Co. vs. Palmers Stores (1903) Ltd. [1912] 1 KB 259

897.

Tak Ming Co. Ltd. vs Yee Sang Metal Supplies Co. [1973] 1 WLR 300

898.

Talituka vs. Nakendo [1979] HCB 275

899.

Taparu vs Roitei [1968] EA 618

900.

Taylor vs. Taylor (1944) 11 EACA 46

901.

Terrazo Pavioirs vs. Standard Joinery & Building Co. [1967] EA 307

902.

Texaco Ltd. vs. Mulberry Filling Station Ltd. [1972] 1 WLR 814 at 831

xxxvii

903.

Thai-Europe Tapioca Service Ltd vs Government of Pakistan Ministry of Food and

Agriculture Directorate of Agricultural Supplies Imports and Shipping Wing [1975] 3 ALL
ER 961 at 965

904.

The Registrar of Societies and 2 Others vs Baraza la Wanawake Court Of Appeal Civil Appeal
No.82 of 1999(T)

905.

The Rena K [1979] 1 ALL.ER 397

906.

The Siskina [1979] AC 210

907.

Third Chandris Shipping Corp vs. Unimarine SA [1979] 2 ALLER 972

908.

Thompson vs. Park [1944] 1 KB 408

909.

Thomson vs. Lord Clan Morris [1900] 1 CH 718

910.

Thorp vs. Holdsworth [1876] 3 CHD 647 at 639

911.

Tindarwesire vs. Kabale T own Council [1980] HCB 33

912.

TMK vs Businge HCMISC. APP. No. 2 of 1992 [1992] VI KALR 82

913.

Tolbey vs. Morris [1979] 1 WLR 592, 603

914.

Tom Mukalazi vs. Davis Kisule HCCS No. 442 of 1992 [1995] III KALR 42

915.

Tomlin vs Standard Telephones a

916.

Tonny Wasswa vs. Joseph Kakooza [1987] HCB 79

917.

Topista Kyebitama vs. Damyano Batuma [1976] HCB 276

918.

Tororo Cement Co. Ltd vs Frokina International Ltd SCCA No. 2 of 2001

919.

Tororo Cement Company Ltd. vs. Fronkina International Ltd. CACA No. 21 of 2000

920.

Transami (U) Ltd. vs. Transocean (U) Ltd. [1991] HCB 59

921.

Transroad Ltd vs Bank of Uganda [1996] 1 KALR 103/[1996] VI KALR 42(SC)

922.

Trower & Sons Ltd. vs. Ripstein [1944] AC 254

923.

Twentsche Overseas Trading Co. Ltd. vs Bombay Garage Ltd. [1958] EA 741

924.

U.C.B vs General Parts (U) Ltd [1993] VI KALR 116

925.

U.C.B vs Joseph Ziritwawula [1985] HCB 94

926.

U.D.B vs. Muganga Construction Co. [1981] HCB 35

927.

U.T.C vs. Outa [1985] HCB 27

928.

UCB vs Mukoome Agencies [1982] HCB 22

929.

Uganda Aluminium Ltd. vs. Restuta Twino Mugisha CACA No. 22 of 2000

930.

Uganda Blankets Manufacturers (1973) Ltd. vs. Attorney General CACA No. 24 of 1994

931.

Uganda Commercial Bank vs Akamba (U) Ltd [1992] IV KALR 28

932.

Uganda Co-operative Transport Union Ltd vs Roko Construction Ltd

SCCA No.35 of

1995
933.

Uganda Corp Creameries Ltd &Henry Kawalya vs Reamation C.A.C.A No.44 of 1998

934.

Uganda Credit and Savings Bank vs. Yosamu Muzeei [1960] EA 660

935.

Uganda General Trading Co. Ltd. vs. Jinja Cash Stores Ltd. [1965] EA 469

xxxviii

936.

Uganda Journalist Safety Committee vs. Attorney General Constitutional Petition No.6 of
1997

937.

Uganda Journalist Safety Committee & Others vs A.G Constitutional Petition No.7 of 1997

938.

Uganda Law Society &Anor vs Attorney General Constitutional Petition No. 8 of 2000

939.

Uganda Moslem Supreme Council vs. Sheik Kassim Mulumba [1980] HCB 110

940.

Uganda Oxygen Ltd vs Jamal [1994] II KALR 5

941.

Uganda Paltries Ltd. vs Kaggwa MB No.42 of 1964

942.

Unidrom Ltd. vs. Kawesi & Co. Ltd. [1992] KALR 123

943.

United Assurance Co. Ltd vs. A.G S.C.C.A no. 1 of 1986 [1995] VI KALR 109

944.

UNTA Exports Ltd. vs. Customs [1970] EA 648

945.

Upmann vs. Elkan (1871) LR 12 Eq 140

946.

Usher vs. Martin [1889] 24 QBD 272

947.

UTC vs. Katongole [1975] HCB 336

948.

Utex Industries Ltd vs Attorney General S.C.C.App No.52 of 1995

949.

Vadala vs Lawes (1890) 25 QBD 295

950.

Van Lynn Developments Ltd. vs Pelias Construction Co. Ltd. [1968] 3 WLR 1141

951.

Victor Parsons & Co. [1973] 1 ALLER 706

952.

Victory Construction Co. vs Duggal [1962] EA 697

953.

Vidyadhar Giraharal Chavda vs The Director of Immigration Services [1995] TLR 125

954.

Vincent Muyimba vs. B.W. Kapiriri [1974] HCB 34

955.

Virgo Co. S.A. vs. Scaarp Shipping Corp. [1988] Lloyds Rep. 552

956.

W. Hills & Sons vs. Tanner Hill [1944] 1 KB 472

957.

W. W Kaggwa &16 Others vs Yowana Kiwanuka & 2 Others [1993] III KALR 77

958.

Walker vs. Suit [1914] 2 KB 930

959.

Wamanyi vs. Interfreight Fowarders (U) Ltd. [1990] II KALR 67

960.

Wambua vs. Wathome [1968] EA 40

961.

Wamini vs. Kirimu [1969] EA 172

962.

Ward vs. James [1966] QB 279

963.

Ward vs. Lewis [1955] 1 WLR 9

964.

Wasswa vs. Ochola [1991] ULSLR 161

965.

Wasswa vs. Senteza [1977] HCB 88

966.

Waters vs. Sunday pictorial Newspaper [1961] 1 WLR 967

967.

Watson vs Murray & Co. [1955] 1 ALLER 350

968.

Watson vs. Part Royal (Caterers) [1961] 2 ALLER 346

969.

Watt vs. Watt [1905] AC 115

970.

Waugh vs British Railways Board [1980] AC 521

971.

Webb vs Stenton (1883) 11 QBD 518

xxxix

972.

Welbach Incandescent Gas Lightings Co. vs New Sunlight Incandescent Co. [1900] 2 CH 21

973.

West Minister Corp vs. Champman [1916] CH 161

974.

Westland Helicopters Ltd vs Arab Organisation for Industrialisation [1995] 1 ALL ER 387

975.

Westleigh Colliery Co. Ltd. vs. Tunn, Cliffee Hompson Ltd. [1904-07] ALL.ER 189

976.

Westminster Airways Ltd. vs Kuwait Oil Co. Ltd. [1951] 1 KB 134

977.

Whall vs. Bulman [1953] 2 QB 198 at 202

978.

White and Credit Reform Associates [1905] 1 KB 653

979.

White, Son and Pill vs Stennings [1911] 2 KB 418

980.

White, Son and Pill vs Stennings [1911] 2 KB 418

981.

Wigram vs. Cox, Son Buckley Co. [1894] 1 QB 792

982.

Wilberforce John vs. Sezi Wako & Others CACA 1 of 1998

983.

William vs. Hunt [1905] 1 KB 512

984.

Williamson vs. Barbour (1877) 9 CHD 529

985.

Wise vs. Perpetual Trustee Co. [1903] AC 139 at 149

986.

Woollerton and Wilson vs. Constain Ltd. [1970] 1 WLR 411

987.

Wycliffe Kiyingi vs. Kajuna HCCS NO. 813 of 1992 [1994] V KALR1

988.

Wynne vs. Tempest [1897] 1 CH 10 at 113

989.

Y.Mutungirehi vs Rwangwade &Group CACApp No.40 of 1999 [1998-2000] HCB 30

990.

Y.Mutungirehi vs Rwangwade &Group CACApp No.18 of 1999 [1998-2000] HCB 34

991.

Yafesi Walusimbi vs. A.G. Uganda [1959] EA 233

992.

Yahaya Kariisa vs A.G and M.K Radia SCCA No.7 of 1994 [1997] HCB 29

993.

Yese Ruzambira vs Kimbowa Builders and Construction Ltd [1976] HCB 278

994.

Yianni vs Yianni [1966] 1 WLR 120

995.

Yokoyasi Emau vs Micheal Etatoa [1982] HCB 48

996.

Yousuf vs. Salama [1980] 3 ALL.ER 405

997.

Yowana Akirod vs. Filipo Malinga [1992-93] HCB 91

998.

Yowana Kahere vs. Lunyo Estates Ltd. [1959] EA 319

999.

Yusuf vs. Nokrach [1971] EA 104

1000.

Yusuf Ali Mohamed Osman vs D.T. Dobie & Co. (Tanganyika) Ltd [1963] EA 288

1001.

Z Ltd. vs. A-Z [1982] 1 QB 558

1002.

Zachary Olum &Anor vs The Attorney Genaral Constitutional Petition No.6 of 1999

1003.

Zaver vs Bamanya [1994] IV KALR 34 (CS No.584 of 1993)

1004.

Zirabamuzale vs. Correct [1962] EA 694

1005.

Zora and another vs. Ralli Brothers [1969] EA 690

xl

LIST OF LEGISLATIONS
ACTS
The Constitution
Advocates Act cap 267
Children Act Cap 59
Civil Procedure Act Cap 71
Civil Procedure and Limitation (Miscellaneous Provisions) Act Cap 72
Divorce Act Cap 249
Evidence Act Cap 6
Foreign Judgements (Reciprocal Enforcement) Act Cap 9
Government Proceedings Act Cap 77
Interpretation Act Cap 3
Judicature Act Cap 13
Labour Union Act ----2006
Law Reform (Miscellaneous Provisions) Act Cap 79
Limitation Act Cap 80
Local Council Courts Act 13 of 2006
Local Government Act Cap 243
Magistrates Courts Act Cap 16
Mental Treatment Act Cap 279
Non-governmental Organisations Registration Act Cap 113
Oaths Act Cap 19
Parliamentary Election Act 17 of 2005
Political Parties and Organisations Act 18 of 2005
Presidential Elections Act 16 of 2005
Public Trustees Act Cap 161
Reciprocal Enforcement of Judgements Act Cap 21

xli

Statutory Declarations Act Cap 22

Succession Act Cap 162
Trial on Indictments Act 23
Trustees Act Cap 164
STATUTORY INSTRUMENTS
The Advocates (Professional Conduct) Regulations SI 267-2
The Advocates (Remuneration and Taxation of Costs) Regulations SI 267-4
The Advocates (Taxation of Costs)(Appeals and References) Regulation SI 267-5
The Civil Procedure Rules SI 71-1
The Civil Procedure (Amendment)(Judicial Review) Rules SI 75 of 2003
The Constitutional Court (Petitions and References) Rules 2005 SI No.91 of 2005
The Court of Appeal (Judicial Powers of Registrars) Practice Direction No.1 of 2004.
The Fundamental Rights and Freedoms (Enforcement Procedure) Rules
The Government Proceedings (Civil Procedure) Rules SI 77-1
The Judicature (Court Fees, Fines and Deposits) Rules SI 13-3
The Judicature (Court of Appeal Rules) Directions SI 13-10
The Judicature (Habeas Corpus) Rules 13-6
The Judicature (Supreme Court Rules) Directions SI 13-11
The Magistrates Courts (Magisterial Area) Instrument SI 16-1
The Modifications to the Fundamental Rights and Freedoms (Enforcement
Procedure) Rules, 1992 Directions 1996.
The Parliamentary Elections (Election Petitions) Rules SI 141-2
The Presidential Elections (Election Petitions) Rules SI 13 of 2001
The Reciprocal Enforcement of Judgements (Extension) Order SI

21-2

The Reciprocal Enforcement of Judgements Rules SI 21-1

LIST OF ABBREVIATIONS OF LAW REPORTS

xlii

AC

Appeal Cases

Admin. L. Rep

Administrative Law Report

ALL NLR

All Nigerian Law Reports

ALL.ER

All England Law Reports

APP. CAS

Appeal Cases

CACA

Court of Appeal Civil Appeal

CACApp

Court of Appeal Civil Application

CH.D/CH

Chancery Division

CPD

Common Pleas Division

EA

East African Law Reports

EACA

East African Court of Appeal

HC Misc. App.

High Court Miscellaneous Application

HC Misc.Cause

High Court Miscellaneous Cause

HCB

High Court Bulletin

HCCA

High Court Civil Appeal

HCCS

High Court Civil Suit

IR

Irish Reports

KALR

Kampala Law Reports

KB

Kings Bench

KLR

Kenya Law Report

Lloyds Rep

Lloyds Report

MB

Monthly Bulletin

QB/QBD

Queens Bench/Queens Bench Division

S.C.C.A

Supreme Court Civil Appeal

S.C.C.App

Supreme Court Civil Application

xliii

S.C.C.Ref

Supreme Court Civil Reference

TLR

Tanzania Law Reports

TLR

Times Law Reports

ULR

Uganda Law Reports

ULSR

Uganda Law Society Reports

ULSLR

Uganda Law Society Law Report

WACA

West African Court of Appeal

WIR

West Indian Reports

WLR

Weekly Law Reports

xliv

CHAPTER ONE
INTRODUCTION
This book is concerned essentially with the civil procedure as laid down under the Civil
Procedure Rules applicable in Ugandas courts of judicature as interpreted, and elucidated in the
case law of High Court Jurisdiction and other superior courts. Courts perform an important
function in the resolution of disputes which the parties have been unable, or unwilling to resolve
by negotiation and settlement. The steps which a litigant or, more realistically, his counsel must
take, from the time of the very first consultation in the counsels office until the time of the
judgment or order of the Court are manifold and complex, and many pitfalls lie in the way of the
unwary. The litigant relies on his counsel to follow the most appropriate procedures not only to
ensure success in the claim or defence, but also to minimize the costs incurred, which can be
considerable.
The term procedure is defined to mean the mode of proceedings by which legal rights are
enforced, as distinguished from the law, which gives or defines the right and which by means of
proceedings; the court is to administer the machinery as distinguished from its products. 1
It is that which regulates the formal steps in an action or other judicial proceedings; a formal
manner and order of conducting suits or prosecutions. The term procedure is commonly opposed
to sum total of legal principles constituting the substance of the law and denotes the body of rules
whether of practice or of pleading whereby rights are effectuated through successful application
of the proper remedies.
In common parlance, procedure means the formal steps, ways and methods taken to enforce a
partys rights in search for a remedy. 2Trial process comprising of court procedures and practices
or otherwise called the civil justice system is the most important contact through which an
ordinary person enforces his/her substantive legal rights in the court of justice.
The term rule is defined as a regulation made by a court of justice or public office with
reference to the conduct of business therein.
OVERVIEW OF THE CIVIL PROCEDURE SYSTEM
With the coming of colonialism, the British literacy transplanted their civil procedure to their new
colonies like India, with a few modifications to suit the Indian circumstances. The Uganda Civil
Procedure Act and the rules made there under came into existence in 1928 to replace the Indian
Code of Civil Procedure. The Uganda Civil Procedure rules were a hybrid of both the Indian and
British Civil Procedure Rules and the same have since been in force in Uganda with a few
modifications up to this day.3
Civil law as a section of the law deals with disputes between the natural persons as between
themselves, and legal persons as between themselves or natural persons on the one hand and legal
persons on the other hand. Civil disputes are subject to civil law as opposed to criminal law.
Plainly put, a civil dispute refers to a dispute arising in civil activities between equal parties such
as natural persons and legal persons. Unlike criminal law, disputes arising under civil law are not
settled by penal sanctions but usually by damages and financial compensation.

Blacks Law Dictionary 3rd Edition (1993) pg 900

Osborns Law Dictionary 6th Edition pg 266
3
Morris and Read, Uganda Its Laws and Constitution, pg 284
2

The administration of justice constitutes the touchstone of quality of justice enjoyed by members
of a civilized community. For the administration of justice is the life-blood of civil legal system
of any country, and at the same time, it is also the life-line of its citizens to secure justice.
The trial process governed by the civil procedural law in the words of Sir Jacob 4 constitutes the
machinery for obtaining what Lord Brougham called;
Justice between man and man.It manifests the political will of the state that civil
remedies be provided for civil rights and claims, and that civil wrongs whether they
consist of infringements of private rights in the enjoyment of life, liberty, property or
otherwise, be made good so far as practicable by compensation and satisfaction or
restrained if necessary by appropriate relief. It responds to the social need to give full
and effective value to the substantive rights of members of society which would otherwise
be diminished or denuded of worth or even of reality.
Such is the importance of the procedure that it is said to lie at the heart of the law by providing
the necessary armory to the parties for presenting and conducting their cases.
The Civil Procedure Rules are meant to ensure orderliness, predictability and transparency which
are all intended to facilitate courts to reach just decision.
There are four cardinal objectives of the Civil Procedure Rules:
To ensure order in the administration of justice i.e to enable disputants and observers to
carry on in an orderly fashion and enable all parties concerned to be able to predict the
successive stages in the process of litigation.

To ensure that the court is assisted in reaching a just resolution of the dispute. To this
end, the rules of procedure, serve as the rules of the game for all litigants. Hence, the
famous adage which is to the effect that procedures are handmaidens of justice 5

To formulate issues which the court has to determine and give a fair notice thereof to the
parties and thus do assist in the dispensation of justice.

To promote transparency throughout the trial. To this end they are intended to bring all
light in all matters in dispute to enable parties prepare their cases appropriately as
opposed to be taken by storm or surprise or being ambushed. 6

Legal advisers should also be sensitive to the need to expedite matters for the benefit of their
clients, as one of the acknowledged and serious defects of the civil justice system is the
inordinately long time often taken to resolve straightforward disputes.
To understand the relationship between procedural and substantive law, one has to contextualise
the two within the common law adversarial system. The object of the system is to search for the
truth and hence justice through the parties acting as adversaries before an impartial judge. In

Sir Jack I.H.Jacob The Reform of Civil Procedural Lawin The Reform of Civil Procedural Law and
other Essays in Civil Procedure,(1982).p1 as quoted by Mohmed Mbabazi in his Paper entitled The Courts
Jurisprudence and Application of Article 126(2)e of the 1995 Constitution:A Case for the desecration of
the new Constitution
5
Iron and Steel wares Ltd vs C.W Martyr &Co.(1956)23 EACA 175 at 177
6
Prof. E.E Ssempebwa: Interlocutory Applications and Orders-Problems and Prospects, A paper presented
at the Judges Conference held on 20th &21st February, 1995 at pg 4&5

effect court proceedings are a kind of civilized violence to prevent parties to conflicts of a
juridical nature from resorting to physical violence as a means of conflict resolution.
In this era of constitutionalism there has emerged the idea of social justice, which has created
more rights guaranteed and enforceable at law.Thus the need for a more accessible and effective
legal machinery for the effectuation of the substantive rights. In this respect the character of the
courts as a citadel of justice has become a constitutional function to dispense justice through the
judicial pacification of warring parties. And to the citizen it is now a fundemental constitutional
right to have access to justice through the courts of justice established by the state.
This constitutional function of the courts of justice has been clearly stated by Lord Diplock 7 that:Every civilized system of government requires that the state should make available to all
its citizens a means for the just and peaceful settlement of disputes between them as to
their respective legal rights. The means provided are courts of justice to which every
citizen has a constitutional right of access in the role of plaintiff to obtain a remedy to
which he claims to be entitled in consequence of an alleged breach of his legal or
equitable rights by some other citizen, the defendant. Whether or not to avail himself of
this right of access to the court lies exclusively within the plaintiffs choice;if he chooses
to do so, the defendant has no option in the matter; his subjection to the jurisdiction of
the court is compulsory. So, it would stultify the constitutional role of the High Court as a
court of justice if it were not armed with power to prevent its process being misused in
such a way as to diminish its capability of arriving at a just decision of the dispute.
Ugandas civil justice system comprises of the Magistrates Courts, the High Court, Court of
Appeal and the Supreme Court as well as other judicial bodies established by law. The
administration of courts differs from court to court in the hierarchy of the civil court system.
ORGANISATION AND HIERARCHY OF THE COURTS
All courts of law in Uganda derive their power from the Constitution. Judicial power is derived
from the people and shall be exercised by the courts established under this Constitution in the
name of the people and in conformity with law and with the values, norms and aspirations of the
people.8
The Constitution provides for establishment of the Courts of Judicature. Under Article 129. It is
provided that the Judicial Power of Uganda shall be exercised by the Courts, which shall consist
of:
(a)
(b)
(c)
(d)

the Supreme Court of Uganda

the Court of Appeal of Uganda
the High Court of Uganda
such Subordinate Courts as Parliament may by law establish, including Qhadis Court,
marriage, divorce, inheritance of property and guardianship as may be prescribed by
Parliament.9

Under the category of subordinate courts (d) above we have the following courts as established
by Statute.
7

Bremer Vulkan vs South India Corp Ltd [1981] AC 909 at 977

Article 126 of the Constitution
9
Ibid
8

(i)

The Magistrates Courts are established under the Magistrates Court Act 10. These are
presided over by Magistrates of the following grades:
(a) Chief Magistrate
(b) Magistrate Grade I
(c) Magistrate Grade II
(d) Magistrate Grade III

(ii)

The Local Council Courts are established as courts under the Local Council Courts Act
enacted in 2006 at every village, parish, town and sub-county level. 11
In addition to the specified Courts, sometimes Parliament makes provision for specifically
constituted tribunals or administrative tribunals which are outside the normal hierarchy of
ordinary courts of law which are given jurisdiction of several matters.
Mention can be made to;
Non-Performing Assets Recovery Tribunal
Tax Tribunal/Tax Appeals Tribunal
Industrial Court
Land Tribunal
Electricity Regulatory Tribunal
Communications Tribunal
Human Rights Tribunal
JURISDICTION
Inspite of all these courts administering justice, Article 129(2) provides: The Supreme Court,
the Court of Appeal and the High Court of Uganda shall be Superior Courts of record and shall
each have all the powers of such court without mention to other courts.
The High Court has unlimited jurisdiction in civil matters 12 except in Constitutional matters
where the Constitution Under Article 137, a Constitutional Court is established specifically to
address questions as to interpretation of the Constitution. In line with the above S. 5 provides:Any court shall, subject to the provisions herein contained, have jurisdiction to try all suits of a
civil nature excepting suits of which its cognizance is either expressly or impliedly barred. 13
The Magistrates Courts Act makes provision for the nature of civil suits that are to be instituted in
respect of a subject matter in accordance with the grade of a Magistrate. A Chief Magistrate
handles such civil matters whose subject matter does not exceed (5) five million. Magistrate
Grade One Civil Jurisdiction does not exceed two million; a Magistrate Grade II does not exceed
five hundred thousand.14
In selecting a court with power over the type of litigation, regard must be made to the pecuniary
limitation of such courts and the enabling law which empowers such court to hear such a case. 15

10

S.3 & 4 of Magistrates Courts Act Cap 16

Act 13 of 2006 The local council in every village, parish or sub county are established as courts.
12
Article 139 of the Constitution, S.14 of Judicature Act
13
S.5 Civil Procedure Act Cap 71
14
S 207 Magistrates Courts Act Cap 16
15
S.4 and S.12 Civil Procedure Act
11

However, since the High Court has unlimited jurisdiction it can entertain any civil matter though
the subject matter may be below what it is supposed to handle. In Munyangwa, Nsibirwa Vs
Kamunyaguzi Court noted16 that all actions should commence in lower courts. However High
Court has unlimited jurisdiction so filing in High Court did not render the suit defective.
In such cases, the courts will equally give or award lower damages. The Civil Procedure Rules
are only applicable to High Court, Chief Magistrate and Magistrate Grade one. Magistrate Grade
II and III have their own special rules found in schedule 3 to the Magistrates Courts Act.
Effect of Lack of Jurisdiction
If a court has no jurisdiction whether pecuniary or territorial over the subject matter of the
litigation, its judgements and orders, however precisely certain and technically correct, are mere
nullities, and not only voidable. They are void and have no effect either as estoppel or otherwise,
and may not only be set aside anytime by the court in which they are rendered, but be declared
void by every court in which may be presented. It is well established law that jurisdiction cannot
be conferred on a court by consent of the parties and any waiver on their part cannot make up for
the lack of defect of jurisdiction. That being so the point may properly be taken in an appellate
court.17
A court cannot give itself jurisdiction in a case otherwise outside its jurisdiction on the ground
that it would be for the convenience of parties and witnesses. The plaint must state the facts on
which the court is asked to assume jurisdiction.18
Where a suit is filed in one of two courts which both have jurisdiction over the parties and the
subject matter of the suit, the court in which the suit is filed should deal with the case. As a
general rule a Plaintiff has a right to choose his/her court. 19 If the magistrate before whom the
case comes for adjudication purports to transfer it on his own initiative to another court which has
jurisdiction, the plaintiff is deprived of that right of choice of courts, and he will be entitled to
have the case returned to the original court for trial and disposal.
A subordinate court cannot on its own initiative transfer a case to another subordinate court or try
a case which is not within it territory or magisterial area. 20 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 on order of the High
court.21
That an order for transfer of a suit cannot be made unless the suit has in the first instance been
brought to a court which has jurisdiction to try it.22
The jurisdiction of our courts over persons outside Uganda conferred upon courts of Uganda
including the High court of Uganda is subject to any local legislation restricting such jurisdiction.
16

[1977] HCB 55 Bisuti vs Busoga District Administration [1971] 1 ULR 179. The plaintiff had an
obligation to plead facts showing that the court had jurisdiction. A mere assertion that the court had
jurisdiction in not enough.
17
Seif vs Shariff Muhamed Shatry (1940) 19 (1) KLR 9 at 10
18
Assanand and Sons (Uganda) Ltd vs East African Records Ltd [1959] EA 360
19
David Kabungu vs Zikarenga H.C.Misc.Application No.36 of 1995 [1995] 3 KALR 48
20
The Magistrates Courts (Magisterial Area) Instrument SI 16-1
21
Mahomed Bin Shebai vs Ahmed Bin Mahomed (1906-1908) 2 KLR 107 at 108
22
Kagenyi vs Musiramo [1968] EA 43

That jurisdiction is limited by Order V, rule 22 which defines the circumstances in which service
outside jurisdiction may be allowed.23
Where a defendant is out of the jurisdiction and neither is domiciled nor ordinarily resident in
Uganda, our courts will not assume jurisdiction in relation any matter arising out of contract
unless the circumstances fall within Order V rule 22.
If, therefore, the Ugandan Courts are to have jurisdiction in a case of contract made in a foreign
country, either the proper law of the contract must be Uganda law or the breach of the contract
must have been committed in Uganda.

WHO MAY APPEAR BEFORE COURT

According to the rules, appearance before Court may be in person, by recognized agent or
advocate.24 Though the civil litigation process is complex, some litigants have preferred to pursue
their own cases without the assistance or hiring services of counsel. A Corporation cannot appear
by a manager, but a Corporation secretary if he/she is an advocate of the High Court. 25
Litigants in Person
First, there is the group of intelligent and responsible citizens who have to conduct their own
cases for financial reasons or they may have been advised that they do not have reasons of
success.
Secondly, there are others who, with or without actual experience, distrust lawyers or think that
they can fight their own cases more effectively.
Thirdly, there are others who have fallen foul of the legal system and the legal profession through
middle headedness and inadequacy. They have failed to find the kind of counsel who would be
patient enough to listen to their story sympathetically and cope with importunings and anxieties.
Fourthly, the professional litigants in person are obsessed with the legal process and treat it as a
hobby. These are plainly actuated by spite and the desire for revenge or by exhibitionist
tendencies.
In the last two categories, such litigants are in some way and in varying degrees, either mentally
disturbed or eccentric or abnormal or at least unable to adopt a rational 26 approach to their legal
problems.
Advantages of being a litigant in person
(1) The expense of paying ones own legal costs is saved. A litigant in person has in the first
instance to pay only court fees and the cost of preparing and providing copies of documents
for the court. if he wins, he will be worse off because he is not entitled to claim any of his
personal expenses or the value of his time, or any loss of earnings.
23

Karachi Gas Co.Ltd vs H Isaaq [1965] EA 42 at 55

O.3 r 1,2 Nassanga v. Nanyonga [1975] HCB 279 Gakwavu v. Gasengayire [1977] HCB 322 at 324
25
East African Roofing Co. Ltd. Vs. Pandit (1954) 27 KLR 86
26
East African Roofing Co. Ltd. V Pandit (1954) 27 KLR 86
24

(2) The litigant in person can conduct his case in his own way and raise whatever matters the
court will allow to be introduced. Whereas counsel may be hesitant about the wisdom of
introducing certain pieces of evidence, or cross examining the other party about things to his
discredit or of impugning the honesty of a witness of good reputation. The litigant himself
may labour under no such inhibitions.
(3) The litigant in person necessarily knows far more about the facts and background of his case
than the average busy counsel could acquire. He immediately knows when the opposing
party or his witnesses are lying and how to prove. However, this is illusory because the
litigant may not know which points are likely to impress the judge or how to take advantage
of openings which are presented to him.
(4) The litigant in person, especially if he is presenting his case in a rational way, is usually
allowed more latitude than counsel. Most judges are reasonably tolerant of breaches of the
rules by un-represented parties. Experienced litigants can sometimes take advantage of this.
Disadvantages of Litigation in person
(1) The substantive law today is a vastly complicated structure. There is an ever-increasing
quantity of parliamentary and delegated legislation and of reported decisions. This is true as
under the Civil Procedure Rules that require list of authorities, documents, witnesses and
summary of evidence. The practice of distinguishing case precedents has to be acquired by
practice.
(2) The litigant may not know the pre-trial procedure, service of summons and court documents.
The technicalities of procedure can lead to a litigant losing the case as even lawyers with
expertise do fall prey to technicalities.
(3) It is no easy task to prepare and present all the required notices and documents for a case in
the required form. Court officials are usually helpful but the litigant has to do the work.
(4) The drafting of pleadings is perhaps the most important and most difficult aspect of the pretrial system. It is, therefore vitally important that pleadings are clear and contain a full
statement of all material and relevant facts. The most frequent complaint against litigants in
person is that their pleadings are rambling and full of irrelevant matter, or incomplete and
insufficient.
(5) Pleadings limit the trial by defining the issues in dispute and restructuring the admissibility
of evidence to matters relevant to these issues, and a party may have difficult in raising at the
trial issues not raised in his pleadings. In addition, skillfully drawn pleadings can
occasionally place the burden of proof upon ones opponent, thereby possibly producing a
difficult at trial.
(6) Ignorance of trial procedure and tactics is a further obstacle. Evidence i.e. admissibility of
documents, hearsay evidence.

THE INHERENT JURISDICTION OF THE COURT

In many spheres of the administration of justice, the High Court exercises a jurisdiction, which is
described as inherent.
It is founded from S. 98, which provides:27
Nothing in this Act shall be deemed to limit or otherwise affect the inherent power of the
Court to make such orders as may be necessary for the ends of justice or to prevent abuse
of the process of the court.
The inherent jurisdiction of the Court may be invoked in an apparently inexhaustible variety of
circumstances and may be exercised in different ways. This peculiar concept is indeed so
amorphous and ubiquitous and so pervasive in its operation that it seems to defy the challenge to
determine its quality and to establish its limits.
The High court has unlimited original civil jurisdiction which must be exercised in conformity
with the Constitution and, subject thereto all other written laws in Uganda. 28
The inherent powers of court are equally vested in the other courts like the Court of Appeal and
Supreme Court.
Under rule 2(2) provides:29
Nothing in these rules shall be taken to limit or otherwise affect the inherent power of
the Court of Appeal, or the High Court, to make such orders as may be necessary for
attaining ends of justice or to prevent abuse of the process of any such court, and that
power shall extend to setting aside judgments which have been proved null and void after
they have been passed, and shall be exercised to prevent abuse of the process any court
caused by delay.
Under rule 2(2) provides:30
Nothing in these rules shall be taken to limit or otherwise affect the inherent power of
the Supreme Court, or the Court of Appeal, to make such orders as may be necessary for
attaining ends of justice or to prevent abuse of the process of any such court, and that
power shall extend to setting aside judgments which have been proved null and void after
they have been passed, and shall be exercised to prevent abuse of the process any court
caused by delay.
NATURE OF INHERENT JURISDICTION
To understand the nature of the inherent jurisdiction of the Court, it is necessary to distinguish it
first from the general jurisdiction of the Court, and next from statutory jurisdiction.
The general jurisdiction of High Court as a Superior Court of record is broadly speaking,
unrestricted and unlimited in all matters of substantive law except in so far as that has been taken
away in unequivocal terms by statutory enactment.
The High Court is not subject to supervisory control by any other court except by due process of
appeal, and it exercises the full Plenitude of judicial power in all matters concerning the general
27

S.98 of Civil Procedure Act

Article 139(1) of the Constitution
29
The Judicature (Court of Appeal Rules) Directions SI 13-10 S.11 Judicature Act M.N Mpinga &3 others
vs Sensarire&4 Others C.A.C.App No.35 of 1999 [1998-2000] HCB 42
30
The Judicature (Supreme Court Rules) Directions SI 13-11 Livingstone Sewanyana vs Martin Aliker
SCCApp No.4 of 1991 [1992] KALR 118 S.7 Judicature Act
28

administration of justice within its area. Its general jurisdiction thus includes the exercise of an
inherent jurisdiction.
Perhaps the true nature of the inherent jurisdiction of the Court is not a simple one but is to be
found in a complex of a number of features, some of which may be summarized as follows:
1) The inherent jurisdiction of the court is exercisable as part of the process of administration of
justice. It is part of the procedural law and not of substantive law. It is invoked in the
relation to the process of litigation.31
2) The distinctive and basic feature of the inherent jurisdiction of the Court is that it is
exercisable by summary process i.e. without a plenary trial conducted in the normal or
ordinary way, and generally without waiting for the trial or for the outcome of any pending or
other proceeding.
3) Because it is part of the machinery of justice, the inherent jurisdiction of the Court may be
invoked not only in relation to the litigant parties in pending proceedings; but in relation also
to anyone, whether a party or not, and in respect of matters which are not raised as issues in
litigation between the parties.
4) The inherent jurisdiction of the Court is a concept which must be distinguished from the
exercise of judicial discretion. These two concepts resemble each other, particularly in
operation and they often appear to overlap, and are therefore sometimes confused. There is
nevertheless a vital juridical distinction between inherent jurisdiction and discretion which
must always be observed.
5) The inherent jurisdiction of the Court may be exercised in any given case, not withstanding
that there are rules of Court governing the circumstances of such cases. The powers
conferred by Rules of court are generally speaking, additional to and not in substitution of
powers arising out of the inherent jurisdiction of the Court.
The two heads of power are generally cumulative and not mutually exclusive. So that in any
given case, the court is able to proceed under either or both heads of jurisdiction.
JURIDICAL BASIS OF INHERENT JURISDICTION
For the essential character of a superior court; it is its very life-blood, its very essence, its
immanent attribute without such a power, the court would have form but would lack substance.
The jurisdiction, which is inherent in a superior court of law is that which enables it to fulfill its
self as a court of law.
The juridical basis of this jurisdiction is therefore the authority of the judiciary to uphold to
protect and to fulfill the judicial function of administering justice according to law in a regular,
orderly and effective manner.
POWERS OF THE COURT UNDER INHERENT JURISDICTION

31

Jadra Karsan Vs Harnam Singh Bhogal (1953) 20 EACA 74 Baxi v Bank of India Ltd.[1966] EA 130

The main methods by which the inherent jurisdiction of the Court may be exercised are coercion
and regulation of its process.
The court mainly employs two coercive means, namely
(1) In the case of contempt of court, to punish the offender, and
(2) In the case of an abuse of process, to stay or dismiss the action or to give judgment or impose
terms as it thinks fit.
Inherent powers exercisable by summary process.
Whatever coercive powers the Court may exercise under its inherent jurisdiction, it proceeds to
do so summarily. What then is the meaning of Summary process? It means the exercise of the
powers of the Court to punish or to terminate proceedings without a trial i.e. without hearing the
evidence of witnesses examined orally and in open court.
It does mean that the court can be capricious, arbitrary or irregular, or can proceed against the
offender without him having due opportunity of being heard; but summary process does mean
that court adopts a method of procedure which is different from the ordinary normal trial
procedure.
For when exercising its inherent jurisdiction by summary process, the Court will, if necessary,
determine all disputed questions of fact or law and for this purpose affidavit evidence will be
admitted, and the court may if necessary hear full argument at an extended hearing.
This is the modern practice where contempt of court is involved as well as where the abuse of
process is alleged.
If after such full examination of the law and the facts, the court is satisfied that the case is a
proper one for the exercise of its inherent jurisdiction it will determine the matter by summary
process, and so avoid a trial with its attendant delay, anxiety and expense.
The resort to the summary process under the inherent jurisdiction of the court involves a serious
and severe curtailment of the right of a party to have his case on the merits heard by court of law
in the ordinary way at a trial held for the purpose.
In contempt cases, the court will only act where the case is clear and beyond reasonable doubt or
argument, and in cases involving abuse of process the court will exercise its inherent jurisdiction
very sparingly and only in very exceptional circumstances or in what are called plain and obvious
cases.
Classification of cases in which inherent jurisdiction of the court may be exercised.
(a) Control over process;
(b) Control over persons; and
(c) Control over powers of inferior courts or tribunals.
A Control Over Process

10

It is clear law that there is vested in Superior courts of justice, as part of their inherent
jurisdiction, power to control their own proceedings and process by this means to prevent any
obstruction or interference with administration of justice.
This has been exercised in the following:
(a) Regulation process and proceeding
(b) Abuse of process and
(c) Compelling observance of process.
Control Over Persons
The Court, on behalf of the sovereign as parens patriae, an inherent and peculiar jurisdiction in
relation to infants and in respect of any compromise or settlement affecting their property.
Under its inherent jurisdiction, the court has power to control the conduct of its officers and
indeed of all persons who are in some official way connected with the court or its process or any
pending proceedings.
This power of control and protection may be exercised in respect of advocates and clerks who are
officers of the court. It extends to other classes of persons such as receivers, liquidators,
bailiff/auctioneers, witnesses and magistrates of lower courts.
Control of persons of inferior courts and tribunals
High Court has power to render inherent jurisdiction assistance to inferior courts.
INHERENT JURISDICTION OF INFERIOR COURTS
Are inferior courts invested with an inherent jurisdiction enabling them to exercise powers by
summary process?
So far as contempt of court is concerned an inferior court has power summarily to punish for
contempt committed in the face of court, but this power does not extend to any contempt
committed out of court unless by virtue of such statutory enactment. The Magistrate court has
power to punish for contempt of court of any willful disobedience to a judgment or order of a
court whether final or interlocutory.
In respect of abuse of court process lower courts have inherent jurisdiction.
RELATIONSHIP BETWEEN INHERENT JURISDICTION AND RULES OF COURT
It has been observed more than once that court can exercise its inherent jurisdiction by summary
process, even where there are rules of court under which it can exercise an equally effective
jurisdiction. It may be useful at this stage therefore to define more precisely the relation as well
as the differences between the inherent jurisdiction and the rules of court.
The powers of court under its inherent jurisdiction are complementary to its powers under rules of
court; one set of power supplements and reinforces the other.

11

The inherent jurisdiction of the court is most valuable adjunct to the powers conferred on the
court by the rules.
The usefulness of the Rules of Court is that they regulate with some precision the circumstances
in which the court can apply coercive measures for disobedience of or non-compliance with the
requirements of the rules or orders of the court. These measures are simply convenient and
effective to uphold the authority of the court in cases in which there are no aggravating
circumstances accompanying such disobedience or non-compliance.
On the other hand, where the usefulness of the powers under the rules ends, the usefulness of the
powers under inherent jurisdiction begins. This is shown in three important respects in which the
powers arising out of the inherent jurisdiction differ from those conferred by Rules of Court.
1) By their very nature, they are wider and more extensive powers, permeating all proceedings
at all stages and filling gaps left by the rules and they can be exercised on a wider basis.
2) They can be invoked in respect of persons who are themselves litigants in pending
proceedings.
3) They can be used to punish the offender by fine or imprisonment.
It should be noted that although a court may use its inherent powers to accomplish ends of justice,
its inherent powers do not go as far as to authorize it in setting at naught a mandatory provision of
the Civil Procedure Act. Section 98 does not give any court authority to disregard or override
specific provision of the Act and rules which are couched in mandatory terms. A courts inherent
jurisdiction should not be invoked where there is specific statutory provision which would meet
necessities of the case.
Inherent jurisdiction can only be exercised subject to the rule that if Civil Procedure Act and rules
which would meet the necessities of the case in question, such provisions should be followed and
the inherent jurisdiction should not be invoked.32
However, any rule that purports to take away the inherent jurisdiction of the courts should be
looked at very carefully before it is construed in such a manner. It is therefore important to
consider the obvious intention that nothing in the Civil Procedure Act should prevent a court from
exercising its inherent powers in such a manner as would be necessary to prevent injustice.
In addition, even were there are specific provisions in the rules to be applied to a particular case
,the inherent jurisdiction of a court is not thereby fettered. 33
In effect therefore civil procedural law must be applied in accordance with the precepts of civil
justice system. And the relationship between the substantive and procedural law must be
governed by the constitutional principles of a fair trial and the role of courts of justice.
Collins M.R.34 has succinctly expressed the relation of the rules of practice to the work of justice
as intended to be that of a handmaid rather than mistress and the courts ought to be bound and
32

Magem Enterprises Ltd vs Uganda Breweries Ltd [1992] KALR 109,Biiso vs Tibamwenda [1991] HCB
92 Taparu vs Roitei [1968] EA 618 at 619
33
Ryan Investments Ltd and Another vs United States of America,[1970] EA 675, Adonia vs Mutekanga
[1970] EA 422 at 432
34
In Re Coles and Ravensheer [1907] 1 KB 1

12

tied by the rules, which are after all intended as general rules of procedure,as to be compelled to
do what will cause injustice in a particular case.
NATURE OF JUDICIAL DISCRETION
The best understanding of what judicial discretion is can be best derived from this exercept.
an issue falls within a judges discretion if, being governed by no rule of law, its
resolution depends on the individual judges assessment (within such boundaries as have
been laid down) of what it is fair and just to do in the particular case. He has no
discretion in making his findings of fact. He has no discretion in this ruling on law. But
when, having made any necessary findings of fact and any necessary ruling of law, he
has to choose between different courses of action, orders, and penalties or recedes he
then exercises discretion. It is only when he reaches a stage of asking himself what is the
fair and just thing to do or order in the instant case that he embarks on the exercise of a
discretion.35
In its simplest form, judicial discretion refers to the judges powers to make decisions without
being obligated to follow precedent or rules established by statute. It derives from the doctrine of
inherent powers of judiciary and such power that enables court to do such things that are
reasonably necessary for the proper administration of justice.
Discretion simply means the faculty of deciding or determining in accordance with circumstances
and what seems just, fair, right, equitable and reasonable in those circumstances. 36
Judicial discretion as an aspect of inherent powers doctrine is thought to be premised on two
fundamentals.37
The first one is separation of powers, a doctrine which imposed a positive responsibility on the
judiciary as one of the branches of government to perform its adjudicative functions effectively
and efficiently. Inherent powers from which judicial discretion descends accordingly exist to
assist the judiciary to accomplish its constitutionally established and mandated functions and to
enable it to acquire the necessary support and resources to achieve these functions.
It is also in the context of separation of powers that the courts have the advantage of protecting
themselves from encroachment upon their domain by the legislature and the executive branches
of government and in that way preserve the much needed flexibility and objectivity of reason,
independence and impartiality.
The second fundamental is in the nature of courts. All courts and those that preside over them
must have, as of necessity, powers to do and determine as is reasonably necessary for the
administration of justice within the scope of their jurisdiction. The concept has been articulated as
follows:

35

The Discretion of the Judge Royal Bank of Scotland Lecture, Oxford (May 17 1990) [1990] Denning
Law Journal 27
36
Yahaya Kariisa vs A.G and M.K Radia SCCA No.7 of 1994 [1997] HCB 29
37
Judicial Discretion -A paper presented by Hon Justice Andrew Nyirenda at The Annual Conference for
the Association of the Law Reform Agencies for East and Southern Africa (ALRAESA) at Entebbe, Uganda
September 4-8,2005

13

Undoubtedly courts of justice possess powers which are not given by the legislation and
which no legislation can take away. These powers spring not from legislation but from
the nature and constitution of the tribunals themselves. 38
The whole concept of judicial discretion is used to manage the gap between the rhetoric of justice
and the substance of the law.
Justification for Judicial Discretion
While every attempt is made to legislate extensively, exhaustively and accurately, and to
promulgate laws that would stand the test of time, it remains a fact that law cannot anticipate
every eventuality. What is true is that in most instances legislations are reactionary, providing for
and addressing experienced events. Its as a result of this that judicial discretion and judicial
activism, and all attributes become even more relevant.
Judicial discretion and Judicial activism helps in filling in gaps or omissions occasioned by
practical problems that arise in litigation when express or implied constitutional provisions,
legislations or rules of court themselves fail to supply answers to these problems and courts find
themselves compelled to find solutions that enable the litigation process to proceed.
However, what should be borne in mind is that judges are bound by judicial ethics and rules of
fairness. These are bonds not seen but exist since a judges training in the law school. Judges do
not have complete freedom to do as they wish. Reynolds says: 39
Although a court of last resort may be free of effective formal checks, it does not
necessarily follow that court is free to do as it chooses. The court operates within a
great many institutional constraints, among them the need to engage in reasoned
elaboration, the need to explain a decision in public and in writing and the need
generally to satisfy the hard-learned demands of the judges craft. Thus it can be said
that although a judge of a court of last resort is free to choose, in practice the
freedom is limited. The path a judge must tread is carefully circumscribed, and the
deviations permitted are relatively few in number. Even when one of these is taken, the
judicial profession compels the judge to explain the decision in a fashion that will satisfy
the most caustic of commentators as to why that was the one chosen.
The Court cannot be bound by a previous decision to exercise its discretion in a particular way,
because it would be in effect putting an end to the discretion. Discretion necessarily involves a
latitude or individual choice according to the particular circumstances and differs from a case
where the decision follows ex-debito justitiae once the facts are known.40
While appellate courts would ordinarily not review the exercise of discretion by a lower court, it
is well established that discretion can be reviewed on its entire merits even when there is nothing
capricious or vindictive about it if the circumstances of the case call for such a course.
CONCLUSION
The inherent jurisdiction of the court may be defined as being the reserve fund of powers, a
residual source of powers which the court may draw upon as necessary whenever it is just or
38

State vs Superior Court 275 P.2nd 887,899 (Ariz 1954)

William L.Reynolds Judicial Process in a Nutshell at pg 158
40
National Enterprises Corporation v Mukisa CACA 42 of 1997 (unreported)
39

14

equitable to do so in particular to ensure observance of due process of law; to prevent improper

vexation or oppression to do justice between the parties and to secure a fair trial between them.
A definition somewhat to this effect may be found in the Civil Procedure Act, which provides:
Nothing in this Act shall be deemed to limit or otherwise affect the inherent power of the
Court to make such orders as may be necessary for the ends of justice or to prevent abuse
of the process of the court.
It was derived from the Indian Civil Procedure Code.
It may be observed that this view of the nature of the inherent jurisdiction of the court postulates
the existence of amplitude of amorphous powers, which may be arbitrary in operation and which
are without limit in extent.
The answer is that a jurisdiction of this kind and character is a necessary part of the armoury of
the courts to enable them to administer justice according to law. The inherent jurisdiction of the
court is a virile and viable doctrine which in the very nature of things is bound to be claimed by
superior courts of law as an indispensable adjunct to all their other powers and free from
restraints of jurisdiction in contempt and the rules of court. It operates as a valuable weapon of
the court to prevent any clogging or obstruction of the stream of justice.
Whether or not judicial discretion and or judicial activism should legitimately be used to resolve
the unclassified conflicts which come before courts, it seems inevitable that, since the substantive
law deals with general principles and cases arise from individual factual situations, discretion and
activism will survive in one form or another.
The broader and less specific the legislation, the greater the scope and indeed the necessity for
judicial elaboration. Judicial discretion and activism are important elements in maintaining the
overall balance and efficiency of our government and legal systems

CHAPTER TWO
PARTIES

15

INTRODUCTION
On commencing a proceeding, a person becomes a plaintiff in an action or an applicant on an
application.
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.
On an originating summons application, a party becomes a respondent or on petition the other
party becomes a respondent.
The word party is a technical word, which is generally understood but difficult to define.
Normally a party is person who on the record of the court, has commenced a proceeding or been
served with summons or has been added by order of court.
The term party may also be used to designate the person seeking to establish a claim or a cause of
action, as well as the person against whom it is sought to impose a corresponding duty or liability.
A party has been defined as including every person served with notice of or attending on any
proceeding, although not named in the record.
In representative action a person represented but not named as a party is also considered to be a
party and such a person may be substituted as a named party.
A respondent is not a mandatory prerequisite of a petition, and where the petition seeks a
declaration without seeking redress, there might be no need for a respondent. 41
LAW GOVERNING CAPACITY TO SUE OR BE SUED
Matters of procedure are governed by lex fori, namely the law of the jurisdiction in which the
action is brought. In contract, matters of substantive law are governed by the lex causae under
the law of the jurisdiction for the choice of law.
It is difficult to classify matters which are procedural and which are substantive. Procedural law
governs the mode of proceeding and the machinery by which the remedy is enforced while the
substantive law defines the right 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
or whether action may be brought against a dissolved corporation or whether an action may be
continued on dissolution of a corporation after the action was commenced.
The determination whether a party to a particular action before court is a proper plaintiff or
defendant is sometimes procedural or substantive. The substantive law determines the
enforcement of a right vested in another or whether the liability falls on another person or
whether a trustee in Bankruptcy may sue in his own name or whether a person is considered as
not being liable at all unless another or all persons are sued first.

41

Paul K.Ssemwogerere &Anor vs Attorney General Constitutional Petition No.3 of 1999

16

A plaintiff is at liberty to sue anybody he thinks he has a claim against and cannot be forced to
sue somebody.42
STANDING TO SUE OR LOCUS STANDI
Locus standi or legal standing is the status, which the law requires of a person to enable him to
invoke the jurisdiction of the courts in order to be granted a desired remedy. Standing refers to the
relationship, which must exist between the plaintiff and the cause of action to enable the plaintiff
to move to court. The basic principle behind locus standi is that courts time should not be wasted
over hypothetical and abstract questions or at the insistence of a mere busy body that has no
genuine grievance.
The obvious effect of locus standi in any legal system is to exclude some people from obtaining
assistance of the courts in declaring and enforcing the law in circumstances when others could
obtain assistance. In civil matters a person must be a person aggrieved before such person can
have locus to appear in court. How issues of standing are decided determines who has access to
justice and it therefore has a constitutional significance.
In an application for Judicial review or interpretation of the Constitution, the law on capacity to
sue allows any person to sue on behalf of others in respect of public interest litigation. This is
wholly supported by Article 50(2), which provides:43
Any person or organisation may bring an action against violation of another persons or
groups human rights
In Election petitions an aggrieved party i.e. one who has lost an election may petition court but a
person who wishes to challenge an election must be:
Any registered voter in the constituency concerned supported by the signatures of not less than
five hundred voters registered in the constituency in a manner prescribed by regulations. 44
NATURAL PERSON
While most natural persons may sue or be sued, limitations exist with regard to certain types of
natural persons, such children, incompetent persons, Aliens and Convicts.
Natural persons who are full and mentally competent may 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 45.
While alive, a natural person may be a party to a proceeding in his given, assumed or fictitious
name.
42

Batemuka vs Anywar [1987] HCB 71.A plaintiff is dominus litus.He must be allowed to choose who to
sue-Animal Feeds vs A.G H.C.C.S 788 of 1990 by Ntabgoba P.J
43
Constitution of Uganda 1995 also refer to R vs Internal Revenue Commissioner ex.p National Federation
of Small Tax Payers [1977] AC.I. InRe: Albert Ruturi &Others and The Minister for Finance &A.G
Misc.Civil Application No.908 of 2001Court noted that in any person or social action group acting in good
faith can petition court for a judicial redress, for legal injury caused or threatened to be caused to a
defined class of persons represented or for a contravention of the Constitution or injury to the nation
44
S.60 (2) (b) of Parliamentary Elections Act.17 of 2005,S.138 (3) (b) Local government Act Cap 243
Athanasius K.Lule vs Hon.Emmanuel Pinto Constitutional Petition No.5 of 1997 reported in HCB [1996]
and Constitutional Cases Digest by Kituo Cha Katiba pg 116
45
Lomax vs Landells (1848) 136 ER 1374

17

Description of Natural Persons as a party

The surname or last name of a person should be used in describing a natural person but the
assumed or fictitious name of a person may also be used.
Where an alias is used, a party should be described by using his proper names followed by the
alias are AB also known as AA or AA alias AB.
At common law, a person could only have one Christian name and a Misnomer of a Christian
name was considered fatal.
The courts avoided this by holding that an initial used for Christian name was presumed to the
Christian name.46
The use of Mr. in place of a Christian name is not sufficient. The terms junior and senior
form no part of a name and their addition or omission is of no effect.
When a father and son have the same names. it will generally be presumed in absence of a prefix
that the father is intended.
Under the rule of idem Sonans, absolute accuracy in spelling names is not required in legal
documents. If a name in the document, though different from the correct spelling of it conveys to
the ears when pronounced a sound practically identical with the sound of the correct name as
commonly pronounced, it may be a sufficient designation of the individual referred to, so that
advantage cannot be taken of clerical error. Clerical mistakes in describing a name do not vitiate
the document.
An error or omission in the initials is not a misnomer that can be corrected by order but may be
corrected later by the party in any subsequent pleading or the evidence.
A party must be described by name and not a mere description such as the Administrators of AB
Estate without naming the individual administrators.
Agent
It is not legally possible for an agent to institute a suit in its own name on behalf of the principal
without the principals authority.47
MINORS/INFANTS
An infant like a mentally incompetent person is under a disability at law which prevents him/her
from assuming the rights and liabilities of an adult.
A minor (or infant) is a person who is under the age of 16 48 and a minor sues by his/her next
friend and defends by his/her guardian ad litem.49
A next friend shall (must) sign a written authority which is to be filed together with the plaint.
This title of the action should read:
46

Kabyesiza vs. Gold Trust Bank HCCS 32 of 1998 (unreported)

Oriental Insurance Brokers Ltd. vs.Transocean (U) Ltd. HCCS 250/93 (unreported)
48
Article 34 of the Constitution
49
O. 32 r 1 and 3, Bibonde vs. Waiswa [1974] HCB 120
47

18

Musa Ssekaana (a minor) by

Fatuma Mukanza (his mother and next friend)
AND
Muhamed Muwanga Jr (a minor) by
Muhamed Muwanga (his father and guardian ad litem)

- Plaintiff
- Defendant

The procedure for the appointment of a next friend or guardian ad litem is that a written authority
to act must be filed together with the plaint.
Normally, a relative will be appointed. The next friend or guardian ad litem must act by an
advocate, who must certify that he knows or believes the person to whom the certificate relates to
be a minor and that the person consenting to be a next friend or guardian has no interest in the
action which is adverse to that of the minor.
Pleadings filed on behalf of a minor without authority of next friend will be taken off the file by
court.50
However, rules 1 and 2 are only directory not mandatory; and non-compliance with them does not
automatically lead to throwing out the suit. Court has direction under r 2 (1) to either take the
suit off the file or make such other order in the premises as it may deem fit e.g. amendment to
include a next friend.51
Where an advocate represents a minor, failure to file authority and the plaint is taken off the file,
costs are to be paid personally by counsel. 52O. 32 r.3 is mandatory and a decree obtained without
the appointment of a guardian is a nullity.53
Where no defence has been filed on or before the day fixed in the summons for a defendant who
is an infant or a person of unsound mind, the plaintiff shall before further proceeding with the suit
apply to the court for an order that some proper person be assigned guardian of the defendant. 54
The person appointed as next friend may be personally liable for costs if they are awarded against
the plaintiff,55though he has a right of indemnity against the minor. On the other hand, a guardian
ad litem is personally liable for costs only where he has been guilty of negligence or misconduct.
STATUS OF A NEXT FRIEND OF AN INFANT
The next friend is an officer of the court appointed to look after the interest of an infant and the
conduct of proceedings.56
The next friend is not a party to the proceedings but is joined to protect the interest of an infant
party and to show that he is willing to guarantee and make himself liable for costs. 57
50

Jingo vs. Kabingiza [1974] HCB 294 Kabatoro vs Namatovu [1975] HCB 159
Musoke vs. Uganda Co-op Savings [1978] HCB 189
52
Nasozi vs. Water Resources Development Ltd. [1972] HCB 210
53
Credit Finance Corporation Ltd. vs. Karmari [1965] EA 545
54
O.9 r 4
55
Masling vs. Motor Hiring Co. [1919] KB 538
56
Rhodes vs. Swithen Bank (1889) 22 QBD 577 at 578
57
Dyke vs. Stephens (1885) 30 CH D 189 at 190
51

19

The primary objective in having an infant sue by guardian or next friend is not that the defendant
may have security for costs, but to have some one before court to answer for the property of an
infant and through whom the court may compel obedience of its orders.
Other object for next friend is the protection of the infants rights and the guaranteeing of costs if
the plaintiffs claim fails and to ensure due conduct of the proceeding.
A next friend has no power to consent to the dismissal of an action without the court's approval.
A next friend cannot withdraw as such in a pending action without the sanction of court. If an
action is brought for the benefit of the next friend and not of the infant, it has to be stayed.
COUNTERCLAIMS AND THIRD PARTY PROCEEDINGS BY AN INFANT
A counterclaim is substantially a cross action and not merely a defence to the plaintiffs claim.
While no precedent has been found, it would appear that in any jurisdiction where the rules of
court do not provide, an infant defendant with a counterclaim would be described in the title of
the original action in the same manner as any other infant defendant and in the title of the
counterclaim as if he were an infant plaintiff.
An infant who takes third party proceedings would be represented by his guardian ad litem as a
defendant in original action and by his next friend as the plaintiff in third party proceeding.
Withdrawal of next friend
A next friend cannot retire without the consent of court, and it is immaterial if all the parties to
the application have given their consent.
A retiring next friend may be required by the court to give security for costs incurred during his
term of office. A successor next friend will be responsible to all costs incurred from the
beginning, or if an infant comes of age and continues the action, he is responsible for all the costs.
Court can grant an application by a next friend to withdrawal on the ground that he would be
liable for costs.
An infant coming of age
Where an infant who is a plaintiff in an existing action comes of age his next friend should not
take away further proceedings in the action. The former infant may either adopt or repudiate the
proceedings within a reasonable time.
On electing to adopt the proceedings an infant on coming of age should file in the registry of the
court a notice to the effect that he has attained the age of twenty one and adopts the proceedings
begun or defends on his/her behalf by his/her next friend or guardian ad litem respectively. A
copy of this notice should be delivered on the other parties.
When an infant coming of age may elects to adopt the proceeding after he/she has come of age, it
does not appear to be necessary to amend the pleadings to allege this fact but the title is altered.
An apt wording to describe an infant plaintiff or defendant on attaining majority is AB formerly
an infant but now of full age.

20

Minors on Appeal
A person under disability may appear by an advocate or by his or her guardian ad litem as the
case may be.58
Where a person has acted as next friend or guardian ad litem in the High Court for a person under
disability, and the person under disability becomes respondent in an appeal to the court, the next
friend or guardian ad litem may, if he or she desires to act in that capacity, lodge a consent to act
and shall be taken to be duly appointed.59
In any other case, the court may appoint the guardian ad litem for the purpose of an appeal, 60 the
court may, at any time, remove and replace any guardian ad litem however appointed. 61
Death of an infant party
Where an infant who is a defendant to an action dies before that judgment, the action should be
continued against his executors or administrators.
MENTALLY INCOMPETENT PERSONS
The distinction between idiots and lunatics has been recognised since early times.
An idiot is one who suffered an incapacity from birth and is incurable whereas a lunatic is
one who has become insane after birth and whose incapacity is temporary or intermittent. In
addition there was a term madness, which denoted incapacity of mind that is complete and
permanent. Both idiots and lunatics are now normally referred to as mentally incompetent
persons or persons of unsound mind.
Actions involving mentally incompetent persons
Mentally incompetent persons may commence an action by a next friend and defend by a
guardian ad litem. 62
A next friend whose interest is adverse to that of the person of unsound mind as in the case of
minor63should be removed in the interest of justice.
Where a proceeding is commenced by a mentally incompetent person without a representative, an
application should be made by a defendant to stay the proceeding until a next friend is appointed.
The defence that a plaintiff is mentally incompetent should not be pleaded as such but an
application would be made for stay or dismissal of the action until a next friend is appointed.
Where there is doubt or dispute as to mental disability of a party, an application should be made
to the court to determine if incompetence exists. 64 Proceedings carried on without the
appointment of a guardian ad litem are void.
58

Rule 23(2) The Judicature (Court of Appeal Rules) Directions Rule 23(2) The Judicature (Supreme Court
Rules) Directions
59
Rule 23(4) ibid
60
Rule 23(5) ibid
61
Rule 23(6) ibid
62
O.32 r 15 see also Kaggwa vs. A.G [1971] HCB 333
63
Wasswa vs. Senteza [1977] HCB 88
64
Porter vs. Porter [1888] 37 CHD 420

21

A party becoming mentally disordered during the proceedings

On a party becoming mentally incompetent during the pendency of a proceeding, the proceeding
is stayed but not discontinued for the incompetent party is unable to revoke the previous authority
given to his counsel to commence or defend the proceedings. In such a case proceedings may be
taken to have the party declared insane.
Regardless whether such proceedings are taken, it is generally the practice to apply to the court
for an order to have the representative appointed to represent incompetent party.
The proceeding would be stayed during the hearing of the lunacy application. A defendant could
apply to stay all further proceedings until a representative is added or apply to have the action
dismissed.65 The next friend, when appointed by the court, will continue the proceedings. 66
Recovery of mentally incompetent person during pendency of the proceedings
Where an incompetent party recovers during the pendency of a proceeding, he should apply for
an order to discharge the appointment of the next friend or guardian ad litem.
When doubt exists as to the recovery of the party and the plaintiff considers that he is sane, he
may apply to have the action by his representative dismissed with costs or have the court inquire
whether he is competent to retain a counsel to bring the action.
If the mentally incompetent person is found competent, the next friend would be discharged, and
the action continued personally by the party who regained his sanity.
Death of a mentally incompetent person during proceeding
On death of a party who is mentally deficient an ex-parte application may be made to a court to
have his Executor or Administrator made a party to the action and the order should provide an
amendment of the pleadings.67
Pleadings by a mentally incompetent person
The status of a mentally incompetent party and of his representative should be set out in the
introductory averments of a plaint. Where an incompetent plaintiff intends to rely upon the
provisions of a Statute it should be alleged in the pleadings as a material fact that the incompetent
party is a patient or incompetent person within the meaning of the applicable statute. Such
defendant should raise in his defence all matters, which show that the transaction is either void or
voidable on point of law.
ALIENS
An Alien is a subject of foreign state not born in that country.
Types of Aliens
65

Bakiri vs. Akamba Republic Bus Service [1976] HCB 323, Richmond vs. Branson & Son [1914] CH 968
Didisheim vs. London Westminster Bank [1900] 2CH 15
67
Ashley v Taylor (1878) 10 CHD 768
66

22

Aliens are divided into two classes.

Alien friends and alien enemies. The former is primarily one whose sovereign or state is at peace
with Uganda while the latter is generally one who is at war with the jurisdiction in question.
Alien enemy generally denotes a person of whatever nationality, including Ugandan who is
carrying on business or is voluntarily resident in the enemys country or a country occupied by
the enemy.68
An Alien friend generally can sue or be sued in the courts in the same manner as a subject.
However, the alien friend cannot sue unless there is some cause for giving the court jurisdiction
or something to the subject matter conveniently within the cognizance of the court.
As a general rule, an alien enemy cannot bring an action in the country of jurisdiction as plaintiff,
although he may of course, be made a defendant. The basis for this general rule is that an alien
enemy has the status of an outlaw and therefore cannot come into courts to sue.
The policy of the courts is to give no assistance to proceeding, which may lead to the enrichment
of an alien enemy and thereby tend to provide his country with the sinews of war.
The plea of alien enemy is apparently not a strict rule of law, but a flexible rule of public policy
within the discretion of courts. It is clear law that the status of an alien enemy attaching to a
plaintiff, if it is pleaded by a defendant, disentitles him/her from having recourse to the courts of
Uganda for the purpose of enforcing a claim unless he/she can show that he has a licence granted
by President or other duly qualified authority to trade or reside within the Republic
Enemy alien as co-plaintiff or suing in representative capacity
The pleas of alien enemy does not defeat an action in which it is necessary to join an enemy alien
as co-plaintiff with nationals or neutral subjects.
Enemy Alien in neutral territory
An enemy national, who is a resident in a neutral country is not treated as an enemy alien and
may sue or be sued. 69 An enemy alien associated with or interested in a firm carrying on business
in an enemy country may no be entitled to that privilege.

WHEN FOREIGN STATE MAY SUE

A foreign state in any court of Uganda provided that:
(a) such state has been recognised by the government
(b) the object of the suit is to enforce a private right vested in the head of state or in any officer of
such state in his public capacity.70
68

S.57 of Civil Procedure Act, Porter vs. Freudenberg [1915] 1KB 857 Hija Binti Hussein Bin Rashid vs
MR De Souza and Co (1917-1918) 7 KLR 10
69
Schafennus vs. Goldberg [1916] 1KB 284 at 291
70
S.58 of Civil Procedure Act

23

It is a matter of International law that our courts will not entertain an action against certain
privileged persons and institutions unless the privilege is waived. The class of such persons and
institutions includes foreign sovereigns or heads of state and governments, foreign diplomats and
their staff, consular officers and representatives of international organizations and agencies like
United Nations Organisations, African Union and European Union.
In the English case of Thai-Europe Tapioca Service Ltd vs Government of Pakistan Ministry of
Food and Agriculture Directorate of Agricultural Supplies Imports and Shipping Wing Lord
Denning,MR said:71
The general principle is undoubtedly that, except by consent, the courts of this country will
not issue their process so as to entertain a claim against a foreign sovereign for debt or
damages. The reason is that; if the courts here once entertain the claim, and in consequence
gave judgement against the foreign sovereign, they could be called on to enforce it by
execution against its property here. Such execution might imperil our relations with that
country and lead to repercussions impossible to foresee
The principle that a foreign Government or Sovereign cannot be impleaded, that is to say sued or
prosecuted in courts of another country, was clearly stated in 1938 by Lord Atkin in Compania
Navierra Vascon Gada vs SS Christina as follows:72
The first is that the courts of a country will not implead a foreign sovereign. That is they
will not by their process make him against his will a party to legal proceedings, whether
the proceeding involve process against his person or seek to recover from him specific
property or damages. The second is that they will not by their process, whether the
sovereign is a party to the proceedings or not, seize or detain property which is his, or of
which he is in possession or control.
However, it should be noted that there is no absolute sovereign immunity. The test is whether the
foreign sovereign government was acting in a governmental or private capacity. 73 If the act was
done in a governmental capacity then the doctrine will apply, otherwise it will not afford
protection to a private transaction.
International law does not recognise immunity for a government department in respect of
ordinary commercial transaction as distinct from acts of a governmental nature. That is to say, the
doctrine of sovereign immunity does not apply to a States commercial transaction. For example
if a foreign sovereign fails to pay rent for the premises they are in occupation or debts/claims for
services rendered to it.
An International organization may be accorded legal capacity the moment, some member state or
nation recognises it as being one. Therefore it would be improper to impose domestic law as
governing law. An international organisation would be recognized by English law as having legal
personality if it had been accorded the legal capacity of a corporation under the law of one of its
member states or the state where it had its seat. 74
71

[1975] 3 ALL ER 961 at 965

[1938] 1 ALL ER 719 at 721 see also Ministry of Defence of the Government of the United Kingdom of
Great Britain and Northern Ireland vs Joel Ndegwa Civil Appeal no.31 of 1982
73
Eddie Rodrigues vs The British High Commission H.C.C.A No.1 of 1993 [1993] 11 KALR 1Kuwait
Airways Corporation vs Iraqi Airways Co.&Others [1995] 3 ALL.ER 694
74
Westland Helicopters Ltd vs Arab Organisation for Industrialisation [1995] 1 ALL ER 387 at 388
72

24

It would therefore follow that domestic law of a local firm should not unfairly oust application of
public international law. So the foreign firm having attained international recognition ought to
have locus to be sued or to sue.
In the case of Lazard Bros &Co vs Midland Bank Ltd, Lord Wright said75:
English Courts have long since recognized as juristic persons corporations established by
foreign law by virtue of the fact of their creation and continuance under and by the law.Such
recognition is said to be by the COMITY OF NATIONS
COMPANIES AND STATUTORY PERSONS AS PARTIES
An incorporated company as a party to an action.
A company or Commission or Authority that is incorporated by an Act of Parliament may sue or
be sued in its corporate name.76
The term person in the legal context includes a body corporate.
Before institution an action involving a company, it is always advisable to ascertain from the
Registrar of Companies or from the Act of Incorporation of the involved company the correct
name.
If the correct name of the corporate party is not used in the pleading and summons then it is
possible that the opposing party might succeed on the ground that the corporate party was nonexistent. Before suing most bodies incorporated by Acts of Parliament you are required to give a
statutory notice of 45 days since most of them are scheduled corporations. 77
The change of a companys name does not render defective any legal proceeding instituted by or
against the company. Any legal proceedings that might have been continued or commenced
against the company by its former name may be commenced or continued against the company
by its new name.
To bring a suit in the names of a company you must obtain authority from the company. There
must be a special resolution passed by a company authorising suit.78However in the case of
United Assurance Co. Ltd vs. A.G Wambuzi C.J noted:79 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. This
decision seems good but the companies mind as directed by its directors is always known to the
public through resolutions which are duly registered at the company registry in order to safeguard
and inform the public.
A similar case arose later and a former director instructed a firm of advocates and negotiated a
settlement of a case while he was no longer a director and there was no clear authority by way of
75

[1932] ALL ER 571 at 576

S.2 The Civil Procedure and Limitation (Miscellaneous Provisions) Act Cap 72
77
S.2 The Civil Procedure and Limitation (Miscellaneous Provisions) Act Cap 72 Rwakasoro vs A.G
[1982] HCB 40, Pamba vs C.M.B [1975] HCB 369
78
Bugerere Coffee Growers vs. Sebaduka [1970] EA 147
79
S.C.C.A no. 1 of 1986 [1995] VI KALR 109
76

25

a resolution. The court accordingly set aside the compromise that had been entered in absence of
clear authority to represent the company inspite of the fact that the very director was earlier in
charge of directing the progress of the case. 80 Where a company is in liquidation, the liquidator
may sue in the name of the company. 81 The receiver for debenture holders may also bring or
continue an action in the name of the company.
A corporation that has ceased to have any juristic existence cannot sue or be sued, 82and under the
companies Act the registrar is supposed to strike the name off the company registry.
GOVERNMENT
Where a person has a claim against the Government, that claim may be enforced as a right by
proceedings taken against the Government for that purpose. 83Civil proceedings by or against the
Government shall be instituted by or against the Attorney General. 84
All civil proceedings by the state shall be instituted and proceeded in accordance with the rules of
respective court and Government Procedure Act. 85 Any person has a right to sue the government
subject to the Government Procedure Act and after giving a statutory notice of 45 days. 86
The Attorney General is the principal legal adviser of the Government and one of the functions of
the Attorney General is to represent the Government in Courts or any other legal proceedings to
which the Government is a party.87
All actions are instituted in the name of the Attorney General as the government pleader.88
In the case of a public nuisance, the Attorney General, or two or more persons having the consent
in writing of the Attorney General, may institute a suit though no special damage has been
caused, for a declaration and injunction or for any other relief. 89
In all matters of constitutional interpretation, the Attorney General must be added as a party to the
proceedings.90 Similarly in cases of public interest, the Attorney general should be made a party
and, if he is left out court will join him as a respondent on its volition under O.1 rule 10(2) of the
Civil Procedure Rules.91

80

City African Textile Shop (U) Ltd vs Jan Mohamed Ltd H.C Misc.Application No. 437 of 2002 arising
from HCCS No. 304 of 1994
81
Greenland Bank vs. FIBA (U) Ltd , West Minister Corp vs. Champman [1916] CH 161
82
Bank of Ethiopia vs. National Bank of Egypt & Liguori [1937] CH 513
83
Article 250(1) of Constitution
84
Article 250(2)
85
Government Proceedings Act Cap 77
86
S.2 of Civil Procedure &Limitation (Miscellaneous Provisions) Act Cap 72.This provision is mandatory
and the facts that some dependants are minors doesnot alter the strictness of it. Getulida Nakiggudde vs
A.G [1979] HCB 61
87
Article 119(3) and (4) (c) of the Constitution
88
S.10 Government Proceedings Act
89
S.62 of Civil Procedure Act
90
The Constitutional Court (Petitions and References) Rules 2005 SI No.91 of 2005,The Fundamental
Rights and Freedoms (Enforcement Procedure) Rules, 4(2), 5(2), 6(4),8(5) cited as Constitutional Court
(Petition for Declarations under Article 137 of the Constitution) Directions, 1996
91
Zachary Olum &Another vs Attorney General Constitutional Petition No.6 of 1999

26

LOCAL GOVERNMENTS
Every local government shall be a body corporate with perpetual succession and a common seal,
and may sue or be sued in its corporate name and may, subject to the provisions of the
Constitution, do enjoy or suffer anything that may be done, enjoyed or suffered by a body
corporate.92
Two or more districts may cooperate to form a regional government. A regional government shall
be a body corporate with power to sue and be sued and shall have power to do all things that may
be done by a body corporate and shall be subject to all obligations to which a body corporate is
subject.93
REPRESENTATIVE PARTIES
Administrators and Executors
A deceased person cannot commence or defend an action.
The rules of court 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.
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 being appointed by a court through grant of
letters of probate.
When administration is no applied for within the time specified in the statute, a creditor or a
person having a cause of action against the estate may apply for the grant.
The administrator should not commence an action in that capacity unless administration of the
estate has been granted to him by court. Any proceedings taken by him before the grant of the
letters of administration becomes a nullity. 94 Where a litigant sues in representative capacity it is
required by O.7 r 4 for him/her to plead that he/she possesses letters of administration. 95
Where there is more than one administrator all must be made parties, even though one may be an
infant. When one of the administrators refuses to join in an action as a plaintiff, the coadministrator may be added as a defendant.
Where a question arises as to whether any person is or is not the legal representative of deceased
such question shall be determined by the court.
When a party to an action dies intestate and administration of his estate is granted an ex-parte
application may be made to the court or judge to have administrator joined as a party. 96 The
Order substituting the administrator as plaintiff should also provide for the other matter arising
from the change of parties. The amended pleadings and subsequent proceedings should be
92

S.6 of Local Government Act Cap 243

Article178 (6) of the Constitution
94
Finnegan vs. Cementation Co. [1953] IQB 68,Bolton vs Salim Khambi[1958]EA 360
95
Wycliffe Kiyingi vs. Kajuna HCCS NO. 813 of 1992 [1994] V KALR1
96
Order. 24 r 5
93

27

treated by original title of the action followed by the new title containing the name of the
administrator.
In a joint action the surviving plaintiffs may continue the action without adding personal
representative of the deceased plaintiff.
Where a sole plaintiff dies without leaving any representatives, the court may on the application
of a defendant, appoint a person to represent the deceased plaintiffs estate who may be served
with a notice to dismiss the action for want of prosecution. 97
When a person is a party in an action in both personal and representative capacity, the practice is
to have his name on record followed by a note that he sues or is sued both personally and as
executor/administrator of the estate.
Trustees
In general sense, a trustee is a person engaged in administrative duties with regard to property
entrusted to him for the benefit of others. Trustees may be individuals or corporations who have
been given the corporate power to so act.
A person may be appointed an executor and trustee under a will.
Generally in such a case, the estate of a deceased person is vested in the executor and after the
fulfillment of his duties as executors; he becomes the trustee to carry out the trusts set up under
the will including the distribution of the estate to the beneficiaries.
Another person may become a trustee under an express instrument or under the law of agency,
bailment or trusts or by a statute. 98 Usually they authorize the surviving trustee or beneficiaries to
appoint a replacement trustee in place of a trustee who has died or is out of a jurisdiction or who
refuses or becomes incapable of performing duties of a trustee.
Trustees are usually individuals or corporations who sue or are sued in a representative capacity.
Trustees and personal representatives should act jointly and all should be named in any
proceeding concerning trust property.99 Actions in respect of trust property may be brought by or
against the trustees without joining the beneficiaries, and any judgment will bind the
beneficiaries.
Trustees are also the appropriate parties where the court is called upon to interpret trust
documents where a question arises as to the charitable status of a body to which a bequest has
been given; the Attorney General must be joined. 100
Actions by a representative
Unlike incorporated bodies and private individuals, which have the capacity to be sued in their
corporate or individual names. Unincorporated associations or groups of persons with a common

97

Order 17 r 1
Public Trustees Act Cap 161, Trustees Act Cap 164
99
Latch vs. Latch [1875] LR 10 Ch. 464
100
Attorney General of the Bahamas vs. Royal Trust Co. [1986] 3 ALL ER 423
98

28

interest do not have the capacity to be sued in the associated name, but may be sued through
representatives.101
Such suits involve questions of joint and several liability members of the group and of agents
thereof, as well as of the nature of a judgment to be obtained against the group or individual
members thereof.
In a class action, a plaintiff cannot join a separate personal claim with a claim on behalf of a class
unless both claims arise out of the same transaction or series of transactions. The introductory
averments of a plaint in a representative action should contain the allegation that the
representatives are suing or are being sued on behalf of themselves and all the other members of
the class.
Actions against representatives
If a representative action is taken against an unincorporated group, redress may be obtained, not
against the group as an entity nor against the individual members thereof, but against the common
funds of the group and then only if the transaction in question was authorised by the members of
the group.
Likewise a personal action might also lie against the individuals who authorised or committed
acts or omissions giving rise to the claim.
Unincorporated Associations, clubs, trade unions, and employer associations, general
associations.
An association consists of a number of persons voluntarily united together by common interest in
order to promote certain objectives for their mutual benefit.
A club is an association of people formed for a common purpose other than profit-making such as
promoting knowledge, art, politics or other social activities.
A member does not become liable to pay funds of the club or to anyone else any money beyond
the subscription required by the rules of the club to be paid so long as he remains a member. 102
An association or club that has not attained corporate or quasi-corporate status by statute has no
legal existence apart from its members. It is not a legal entity like a body corporate nor is it an
association of persons carrying on business in common with a view of profit like a partnership.
An unincorporated association is not a legal entity capable of suing or being sued. 103However a
Nongovernmental organisation may have a capacity to sue in its name since it has a prescribed
procedure for registration set out in the Nongovernmental Organisation Act104 that follows a
similar procedure like incorporation and most NGOs are operating in Uganda without
incorporation at the company registry under the Companies Act. Likewise the Labour Unions
have been recognised as body corporate and can sue or be sued in their name. 105
101

Order 1 r 8
Wise vs. Perpetual Trustee Co. [1903] AC 139 at 149
103
Campbell vs. Thompson [1953] 1 ALL ER 831
104
Nongovernmental Organisations Registration Act Cap 113
105
Labour Union Act ----2006 In Re: Albert &Others and The Minister for Finance &A..G Miscellaneous
Application No.908 of 2001(K) Court noted that the registered name of the trade union is a collective name
102

29

A political party or Organisation that is duly registered is a body corporate and shall have
perpetual succession and may sue or be sued in its corporate name. 106
A proceeding against such an entity is a nullity and not a mere irregularity, which may be waived
by filing a defence. An unincorporated association may not be sued in the name of the
association, nor may its secretary or other officers be sued in the associations name. It is
immaterial if the rules or regulations of an association give an official power to sue on behalf of
the association, for the proper persons to bring the action are the persons whose rights have been
violated and not mere agents.
However trustees of the property of an incorporated association may however, sue or be sued in
respect of the property vested in them, for trustees are considered to represent the members
beneficially interested in the property.
Status of members of Unincorporated Association
The members of an unincorporated association are related to each other by contract upon the
terms set out in the associations constitution and regulations. The contract is not between the
member and some undefined entity that lacks the capacity to contract but is a contract between
each member and every other member of the association.
If liabilities are to be fastened on any members of such an association it must be by reason of the
acts of those members themselves, or by reason of the acts of their agents; and the agency must
be made out by the person who relies on it, for none is implied by the mere fact of association. 107
Actions by or against Unincorporated Association
Actions involving an unincorporated association are brought, not in the name of the association,
but in the name of the members involved, either personally or in a representative capacity, or
against the trustees of the property of association.
Generally, if the proceeding involves the internal affairs of an unincorporated association and the
members are not numerous, the proceedings are taken by or against the members in their personal
capacities. When they are numerous, a representative action may be taken and generally leave of
court is required.
Where proceedings are by or against members of a club in their personal capacities, no reference
to the unincorporated association need follow the names of the members in the title of the action.
In an action where the sole relief is for damages, the members of the unincorporated association
must sue in their personal names, for a representative action does not lie as damages are personal
and must be proved separately in the case of each plaintiff. 108

for all members of that union and the trade union may sue or be sued by its registered name as a Trade
union instead of its individual members.
106
S.6 Political Parties and Organisations Act 18 of 2005
107
London Association for Protection of Trade vs. Greenlands Ltd. [1916] 2 AC 15
108
Market & Co. vs. Knight SS Co. [1910] 2KB 1021

30

Members of an unincorporated association should sue or be sued in their personal names 109 unless
it can be shown that:
(a) all the members of the class had a common interest, 110
(b) they all had a common grievance,
(c) the relief claimed was in its nature beneficial to all of them when a representative action may
be taken.111
Representative actions by or against members of an Unincorporated Association
A representative action may be taken by or against the members of an unincorporated association
including a club.112 Such an action is subject to many limitations, such as the following:
(a) There must be numerous persons involved in the representative action for such an action does
not lie on behalf of only a few members.
(b) The parties must have a common interest. It is not alike or similar interest in the sense that
the plaintiff and all those whom he represents will enjoy some relief by his success through
different proportions and perhaps in different degrees. 113
All the parties must have a common grievance and the relief is in its nature beneficial to all of
them. Where separate defences are open to some of the members; there cannot be a common
interest within the rule.114
(c) The relief must in its nature be beneficial to all the members of the class.
(d) The parties must be members of the association at the time the cause of action arose.
A plaintiff in a representative action is a self-elected representative of the persons represented and
does not have to obtain their consent. Where a person who is represented dissents, that person
should be joined as a defendant or be represented by other defendants.
The plaintiff in an action in contract against unincorporated association looks to the funds of the
association for payment or if the funds are exhausted the plaintiff then looks to those who
sanctioned the contract; usually the executive committee members who made themselves liable
by authorising or ratifying the expenditure for purposes of the association. 115
Similar principles are applicable in tortuous liability actions.
PARTNERSHIPS
Actions by or against Partnerships

109

Daudi Abdul vs Ahamed Suleman (1946) 3 EACA 54

Campbell vs Thompson [1953] 1 QB 445
111
Smith vs. Cardiff Corp [1954] 1 QB 210 at 220 see also Duke of Bedford vs. V.Ellis [1901] AC 1
112
Johnson vs Moss &others [1969] EA 654
113
Walker vs. Suit [1914] 2KB 930
114
Barker vs. Allanson [1937] 1KB 463
115
Bradley Egg Farm Ltd. vs. Clifford [1943] 2 ALL ER 378
110

31

Partnerships may sue or be sued in the firms name or alternatively in the names of the individual
partners.116 The rules of court provide that an action by or against partners may be taken in either
the firm name or in the personal names of the partners.
Doubt about who are the partners where there are many doubts about the membership of a
partnership, it may be advisable to issue court process against such a firm in the firm name.
The rules of the court facilitate the service of the process and the resultant judgment is
enforceable not only against the firm property within the jurisdiction, but also with limitation,
against the property of any partner who has been individually served, or who has admitted in the
pleading that he is a partner. With leave, the judgment is generally enforceable against any other
partner within the jurisdiction, but a foreign partner may have to be sued individually. It is good
practice in certain cases to state in the plaint more than the firm name and to give the names of
partners followed with words trading as followed by the firm name. 117
2.

Where the form of judgment is important, the following alternatives are available.
(a) Where a judgment is desired against a firm, the proceedings should be taken in the
firm name, unless one of the partners is a minor then the judgment should be entered
against the firm, other than the minor partner.118 Likewise, a claim can be enforced
against a partnership without making all the partners defendants. 119
In an action against a firm, a personal judgment may also be entered against any
partner who has been served as a partner and has filed or failed to file a defence or
admitted he was a partner, or failed to have his name struck off.
A suit may be brought against a partnership even though it has been dissolved; a suit
against named persons all formerly trading as is not a suit against the firm. 120

3.

Where numerous partners exist it may be more convenient to sue in the firm name or
bring a representative action. If partners appear by an Advocate, it is the duty of the
Advocate to state in court the names of the partners for whom he is appearing. 121

4.

Where changes have occurred in the members of the firm since the cause of action
accrued; little advantage is derived in using the firm name, although it may be used in an
action against a firm, which is known to have been dissolved before the commencement
of the action.
The court process must be served on all the partners who sought to be made liable. 122
Where a partner dies after the firm has been sued, the surviving partner must put in a

116

O.30 r 1 Kasana Produce vs. Kato [1973] EA 190 Reliable African Insurance Agencies vs. NIC [1979]
HCB 58, 60
117
Kaggwa vs. Sohan Singh & Co. [1972] HCB 273 see Format Gapco vs. Muhamed Muwanga t/a Musa
and Moses Service HCCS 84/1998 unreported.
118
Lovell & Christmas vs. Beauchamp [1894] AC 607
119
Sarwan Singh vs. Karam Singh [1963] EA 423
120
Horra vs. Horra [1959] EA 423
121
Posts & Telecommunications vs. Terrazo Pavior [1973] EA 344
122
Wigram vs. Cox, Son Buckley Co. [1894] 1 QB 792

32

defence in the name of the firm. 123 In an action against a firm, it may be found that
judgment is not enforceable against certain partners.
5.

Improper release of cause of action by a partner.

Where a firm has a cause of action and one partner improperly releases it the other
partners may maintain an action and join the dissenting as a defendant. This constitutes
an exception to the general rule that a same person cannot be both a plaintiff and
defendant.124 Likewise, an action by a firm can be maintained against a partner who owes
a firm money.125 To the contrary, see where the court refused to allow a firm to maintain
an action against another firm with a common partner.126

JOINDER OF PARTIES
Grounds of Joinder
Subject to the right of the court to order a separate trial or other procedures, the rules of court
provide the following grounds for voluntary and mandatory joinder of two or more parties in a
proceeding where joinder being permitted.
1.

Relief in respect of the same or series of transactions

Where all rights in a proceeding, whether joint, several or in the alternative are in respect
of the same or a series of transactions.127

2.

Common question of fact or law

Where a common question of fact or law would or may arise in a proceeding if
proceedings were brought by the parties.

3.

Leave of Court obtained

Where leave of court is obtained.

4.

Joint Claimants

5.

Where persons are joint claimants, with the claimants being joined as co-plaintiff or a
defendant if the person does not consent.
Joint and several liability

123

Ellis vs. Wadeson [1899] QB 714 see also Horra vs Horra (supra)

124

Ellis vs. Kerr [1910] 1 CH 529 at 537

Williamson vs. Barbour (1877) 9 CHD 529 at 536
126
Meyer & Co. vs. Faber (No.2) [1923] 2 CH 421
127
Order 1 r 1 see also Uganda General Trading Co. Ltd. vs. Jinja Cash Stores Ltd. [1965] EA 469 where
claims arise out of the same act or transaction and there is a common question of law or fact, the reliefs
claimed need not be common to all defendants.
Bank of India Ltd. vs. Shah [1965] EA 18 as to what constitutes the same act or transaction, Sempa
Mbabali vs. Kidza [1985] HCB 46 at 47
125

33

Where persons are jointly and severally liable for the relief sought, they need not be
joined as co-defendants unless court stays the proceedings until all the parties are joined.
6.

Presence of person promotes administration of justice

Where the presence of any person as a party to a proceeding may promote the convenient
administration of justice.

7.

Persons presence necessary

Where a persons presence is necessary as a party to enable the court to effectively
adjudicate upon the issues or is required by a statute.

8.

Doubt against whom relief is sought

Where there is doubt as to the person against whom a plaintiff is entitled relief. 128
Court has power to order separate trials if joinder of plaintiffs may embarrass or delay
trial.129

Rules of court for joinder of parties

The rules of court generally supplement the various principles developed by the courts for joinder
of parties by providing:1. Interest of co-plaintiff:
A co-plaintiff need not be interested in every cause of action or in the relief claimed
in a proceeding.
2. Non joinder or misjoinder of a party:
No proceeding shall be defeated by reason of the misjoinder or nonjoinder of a
party.130
3. Joinder cause delay:
Where the joinder of parties may complicate or delay a trial or hearing, the court
may:(a) Order separate trial or hearing
(b) Make such order as is just.131
4. Right of court to join a party:
128

Order 1 r 7 Batemuka vs. Anywar & another [1987] HCB 71

Order 1 r 2
130
Order 1 r 9 Lawrence M. Kyazze vs. Eunice Busingye [1992] IV KALR 55 see also Yowana Kahere vs.
Lunyo Estates Ltd. [1959] EA 319. However, this order does not preclude a judge from refusing in his/her
discretion to allow a joinder at a very late stage. Allah Ditta Qureshi vs. Patel (1951) 18 EACA 1
131
Order 1 r 2 Order 1 r 2
129

34

The court at any time, on application or its own motion may order:(a) Any unnecessary or improper party to cease to be a party.
(b) Any person, who is necessary to ensure that all matters may be effectively
adjudicated upon in a proceeding, to be added as a party.132
(c) Any successor of a deceased or bankruptcy party or a corporate party that has
been wound up or dissolved and its interest has not abated, t be made a party
when interest has not abated or when the interest or liability is assigned or
transferred or devolved.
5. Right of court to grant leave:
The court at any stage of a proceeding may grant leave to add, delete a party upon
such terms as the court may order.133
6. Consent of person added:
A person usually may not be added as a party without his consent in writing. 134
Joinder of parties by plaintiff and defendant or court.
In applying the rules, one must keep in mind that a person may be joined as a party to proceeding
by:(i)
(ii)
(iii)

An intended plaintiff without leave of the court when commencing a proceeding.

A defendant after proceeding with leave of the court.
The court,
(a) on application of any party or Intervenors,
(b) on its own motion.

In joining parties, the fundamental purposes is to enable court to deal with matters brought before
it and avoid multiplicity of pleadings. The party joined must have an interest in litigation. An
original plaintiff with no cause of action cannot join a person who may have a cause of action.
Mulenga JSC noted:135 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 questions involved in the
suit, it was necessary to show either that the orders sought would legally affect the interests of
that person and that it is desirable to have that person joined to avoid multiplicity of suits, or that
the Defendant could not effectually set up a desired defence unless that person was joined or an
order made that would bind that other person
132

Order 1 r 10(2) Lombard Banking Kenya Ltd. vs. Shah Bhaichand Bhagwanyi [1960] EA 969 An
application to remove a party cannot be allowed unless it would leave the suit intact Pathak vs. Mrekwe
[1964] EA 24
133
Ponjo vs. Toro African Bus Co. [1980] HCB 57 non existing parties cannot be party to suit Sajjabi vs.
Timber Manufacturers Ltd. [1979] HCB 202 Matovu vs Singh [1973] HCB 113. Najeno vs Semwanga
[1974] EA 332 Order for substituting a party after limitation period is improper Gulamabbas vs
Ebrahimsi [1971] EA 22 However, in tort, a defendant cannot be added even if willing, if the plaintiff
opposes
134
Fernandes vs. Kara Arjan & Sons [1961] EA 693.
135
Departed Asians Property Custodian Board vs Jaffer Brothers Ltd [1999] 1 EA 55

35

Joinder of defendant
The courts have laid down the following general principles with regard to the joinder of a person
as a defendant.
1.

Interest of the defendant in relief

Any person against whom a plaintiff claims some relief may be a defendant, but it is not
necessary for each defendant to be interested in all the relief sought or in every cause of
action. The court may make such order as it appears to be just to prevent any defendant
from being embarrassed or put to expenses by being required to attend any proceedings in
which he may have no interest. A person cannot be made a defendant merely to obtain
costs.136 Under certain circumstances a person may be made a defendant for the purpose
of discovery.137

2.

A dissolved company as a defendant

A company, which has ceased to have any juristic existence in the country of its
incorporation, cannot be sued as a defendant. 138
But a company in
liquidation/receivership can be sued.

3.

Right of person to be a plaintiff and defendant

The same person cannot be a plaintiff and a defendant in the same action in every
capacities,139 but a defendant may be sued in two capacities, such as personally and as a
representative.140 There is nothing wrong in a person suing in a dual capacity.141

Adding of a defendant against wishes of plaintiff

Generally a person cannot be added as co-defendant against the wishes of the plaintiff,
but the court may add a joint contractor who is within the jurisdiction as a co-defendant
despite the wishes of the plaintiff. 142 In a suit in tort, a defendant cannot be added, even if
willing, if the plaintiff opposes. 143 This is usually done to enable court to effectually and
completely adjudicate upon a matter and settle all questions involved in the matter.
Claims against defendants in alternative

136

Burstall vs. Beyfus (1884) 26 CHD 35 at 44

Norwich Pharmacal Co. vs. Customs and Excise Commissioners [1973] 2 ALLER 943 contrast Meru
Farmers Co-operative Union vs. Abdul Aziz Suleman No. 1 [1966] EA 436 A defendant against whom no
cause of action has been pleaded cannot be kept as a party in order to obtain inspection or discovery.
138
Lazard Bros Co. vs. Banque Industriell de Moscou [1932] 1 KB 617
139
Ellis vs. Kerr [1910] 1 CH 529 at 537
140
Hardie & Lane Ltd. vs. Chilterm [1928] 1 KB 563
141
Bolton vs. Salim Khambi [1958] EA 360
142
Norbury Natzio & Co. vs. Griffith [1918-1919] ALL.ER 225
143
Fernandes vs. Kara Arjan & Sons [1961] EA 693 David Kayondo vs. Resty Nantongo HCCS No. 829 of
1993 [1994] VI KALR 114
137

36

Where there are co-defendants the plaintiff may claim against them in the alternative, such as
where the claims are against a principal and agent for breach of warranty of authority or when
there is doubt as to the agents authority and the principal is added as a co-defendant. 144
In actions against defendants in the alternative, default judgment against one joint defendant may
be considered as an abandonment of the claim against the other. In an action against the three
joint contractors, a judgment against two of the contractors is a bar to a judgment against the third
or an acceptance by one defendant brings the action to an end against the other defendants
case.145
Joinder of parties by the court on application
The courts have granted applications for a joinder of parties where a persons rights will be
directly affected by the acts of court or administrative body. The applicant may have been a
defendant originally, especially when the original failure to add the person as a party was through
a mistake or oversight or the failure to add was caused by inadvertence and the defendant knew
all the relevant facts.
Joinder of parties to an action by court on its own motion
Where a company is a necessary party to an action, it may be added by the court on its own
motion, and if it does not voluntarily consent to be added as a plaintiff, the company may be
added as a defendant. When the plaintiff objects to adding a party as a co-defendant that person
may be added as a third party and the court may on its own motion add a third party as a codefendant where there is no justification for making the person a party, the court on its own
motion may strike the party off.146 The striking off of one of the parties for misjoinder does not
render the suit a nullity as long as the removal of the party leaves the cause of action intact. 147
Joinder of Intervenors
An intervenor is one who, on his own application and with leave of court, is added to an action
pending between others. When added, the intervenor may have the status of a party to the action
as a friend of the court.
An Amicus Curiae or friend of the court is a person, who call to the attention of the court some
decision or point of law, but who does not become a party to the action.
An intervenor must establish that:(a)
(b)

he ought to have been joined as a defendant initially and the failure to do so may make
the cause or matter liable to be defeated by the non joinder of a person as a defendant or
his presence before the court is necessary to ensure that all matters in dispute in the cause
may be effectually and completely determined and adjudicated upon.

Leave of court to intervenor becoming a party

144

Benetts & Co. vs. Mciiwraith & Co. [1896] 2 QB 464

Parr vs. Snell [1923] 1 KBI
146
Order 1 r 10
147
Order 1 r 1.0 (2) Loi Bagyenda vs. Loyce Kikunja Bagyenda HCCS 424 of 1989 [1994] VI KALR 46
145

37

It is difficult to establish when an intervenors presence before the court is necessary to ensure
that all matters in dispute in the cause may be effectually and completely determined and
adjudicated upon.
Intervenors legal rights affected
Generally, the court will normally permit an intervenor to become a party where the legal rights
of the intervenor will be directly interfered with, such as where the proprietory or pecuniary
rights of the intervenor will be directly affected with or the intervenor may be liable to satisfy the
judgment148 or where a persons property rights are affected or the intervenors economic interest
will be affected. Intervenors refusal to e a co-plaintiff where an intervenor is one of the intended
co-plaintiff and on his refusal to be co-plaintiff, he may be added as a defendant.
Right of Intervenor to become a party
The proprietary rights of an intervenor may be affected where his legal, as distinguished from his
commercial rights are directly affected by the order sought by the plaintiff.
An intervenor will not be joined as a party merely to permit him to prosecute a counterclaim or to
give him a status to make representations on behalf of other parties.
Intervention by an Amicus Curiae
The status and function of an amicus curiae or friend of the court has not been clearly defined in
the common law jurisprudence.
Amicus curiae is one who as a bystander where a judge is doubtful or mistaken in a matter of
law, may inform the court. In its ordinary use the term implies a friendly intervention of counsel
to remind the court of some matter of law which has escaped its notice in regard of which it is in
danger of going wrong.149 It seems that such a person is not a party to an action but one who calls
the attention of the court to some decision or point of law which appears to have been over
looked.
The common law principle is that the parties to an action have the right to litigate free from the
interference of strangers. 150 More recent cases have held that intervening amicus curiae should be
restricted to those cases in which the court clearly is in need of assistance. At common law a
court has inherent power to invite an amicus curiae when it considers it desirable. However, the
person so called ought not to be interested in the matter at hand except perhaps, the Attorney
General.151
Where the intervention would only serve to widen the case between the parties or introduce a new
cause of action, the intervention should not be allowed. An amicus curiae is not a party to an
action, has no control over it and generally should not be allowed costs. The right of an amicus
curiae to address the court is purely discretionary and is not dependent upon the consent of
parties to the proceedings.

148

Amon vs. Raphael Tuck & Son Ltd. [1956] 1 QB 357

Re: Nakivubo Chemists (U) Ltd. [1977] HCB 311
150
Jones vs. National Coal Board [1957] 2 QB 55 at 64
151
Ibid Kayondo vs. Attorney General
149

38

JOINDER ON MISNOMERS
Deceased or non existent persons as plaintiffs
If the plaintiff is not alive or in existence at the time the summons was issued, the action must be
discontinued, for the court has no power under the rules of court and its inherent jurisdiction
otherwise to create a plaintiff in an addition.152
For instance, where an action is commenced in the name of a dead person, his representatives
cannot be substituted as a plaintiff. This would be the case if the plaintiff dies after the summons
has been issued in his name.153
Where the name used represents some person or thing in existence, but the party is technically a
non-existent person or body because of the incorrect spelling of a corporate name or the use of a
trading name etc. the court will treat the error as a misnomer under the rules. 154
MISTAKES IN DESCRIPTION OF PARTIES
Mistakes in a name of a plaintiff
A mistake in the religious name of a plaintiff may also be corrected, such as Musa is used for
Moses or where a party is only described by the initials of his name. However, where the names
have the same original derivation but different spellings are used, then the use of one for the other
is a misnomer which can be corrected. Likewise, a court will grant an amendment where the
name use is hem sonams (sounding alike) with the correct name.
If a party is sued in an assumed name or one acquired by usage or reputation, an amendment will
be allowed to correct such a misnomer.155 Such action taken by the defendant does not relieve the
plaintiff from the necessity of amending his documents and the plaint.
If the defendant in such a case elects not to file a defence. It is questionable whether a valid
judgment by default can be entered against him, for it would appear that such judgment could be
set aside for irregularity.
A plaint in the names of a wrong defendant cannot be amended but can only be rejected. 156
If a plaintiff is improperly named in the plaint and fails to correct it, he may be estopped from
denying that he was the plaintiff. an improperly named defendant will not be substituted after
judgment.
Use of Alias for a party
Where a plaintiff knows the identity but not the name of a person involved in a motor car accident
and cannot be expected to know the names of that person the alias may be used initially as a
152

Etablissment Baudetot vs. Rs Grahams & Co. [1953] 2 QB 271

Kohli vs. Popatlal [1964] EA 219
154
Order 1 r 10 (2)
155
W. Hills & Sons vs. Tanner Hill [1944] 1 KB 472
156
Joseph Mpamya vs. Attorney General HCCS No. 21 1995 [1996] 11 KALR 121
153

39

misnomer to describe the real party. When an alias is not a mere misnomer, the alias may not be
used if it could apply to many persons.
THIRD PARTY PROCEEDINGS
General
Third party proceedings are the converse of counterclaims and setoffs. A third party proceeding
is an action involving the plaintiffs claim taken by the defendant for contribution or indemnity
against a third person or a co-defendant as a third party. 157
The objects of third party procedure
1.

To prevent multiplicity of actions and to enable the court to settle disputes between all
parties to them in one proceeding and to save expense. 158

2.

To prevent the same issue being heard twice with a possibility of different results. 159

3.

To have the issue between the defendant and third party bound by the decision in the
original action between the plaintiff and defendants.

4.

To have the issue between defendant and third party decided as soon as possible after the
decision in the original action between the plaintiff and defendant.

In lieu of commencing a third party proceeding a defendant may sue the third person in a separate
action to enforce his rights.160
Nature of third party proceedings
This order applies only to cases where the defendant claims to be entitled to contribution or
indemnity against a third party.161 It is only confined to contribution162and indemnity.163
A third party proceeding is in effect an independent action, with third party becoming a defendant
with a right to counterclaim or having the right to conduct discovery of opposing party. Where
the main action is settled, a third party proceeding still continues, 164but a third party proceeding
may be dismissed for want of prosecution even though the main action is still proceeding. 165
Under the rules of the court, a third party is not strictly a defendant against the plaintiff in the
original suit but the rules generally provide that a third party may dispute the liability of the
defendant in the original action to the plaintiff, or the third partys liability to the defendant in the
original action. So all the parties may participate in the discovering procedures.
157

Order 1 r 14
Baxter vs. France [1922] ALL ER 279 at 281
159
Standard Securities vs. Hubbard, Telesurance Third Party [1967] CH 1056 at 1059
160
Nettleingham & Co. vs. Powell & Co. [1931] KB 1
161
Overseas Touring Co. (Road Services) Ltd. vs. African Produce Agency 1949 Ltd. [1962] EA 190
162
Sango Bay Estates Ltd. vs. Dresdner Bank AG [1971] EA 31 [1970] HCB 9
163
Yafesi Walusimbi vs. A.G. Uganda [1959] EA 233 A right to damages is not a right to indemnity
Kaggwa vs. Constaperaria [1963] EA 213
164
Stott vs. West Yorkshire Road Car Co Home Bakeries (third parties) [1971] 3 ALLER 534
165
Slade and Kempton (Jewellery) Ltd. vs N. Kayman [1969] 3 ALLER 786
158

40

A third party may also under the rules take fourth party proceedings against any other person
including a plaintiff in the original action, when the third party may claim contribution or
indemnity166or third party may counterclaim against the defendant in the original action at whose
instance he was made a third party but not against the plaintiff in the original action as a third
party is not a party to that action.
A third party with leave of the court may appeal against a judgment for the plaintiff in the original
suit/action while a defendant in the original action may claim over against a third party/person
doing so does not provide the defendant with a defence against the plaintiff in the original action
for the plaintiff is not concerned that the defendant has a remedy against someone else. Once a
third party notice is issued a copy of the plaint in the main suit ought to be attached to the
notice.167
Scope of third party proceedings
1. Claim for contribution or indemnity may arise out of an express or implied contract 168or from
the relationship of the parties169or where a right of indemnity exists when the relationship
between the parties is such that either in law or equity there is an obligation upon one party to
indemnify the other170or from negligence of directors.
The right to indemnify need not be for the whole claim in the main action. It may be for any
separate or separable part of the plaintiffs claim.
Relief related to original subject matter
2.

The defendant may also claim against a third party for any relief or remedy relating to or
connected with the subject matter of the original action and is substantially the same as
some relief or remedy claimed by the plaintiff in the original action, but it is not
necessary that the whole question between the plaintiff, the defendant and third party be
identical.171

Determination of a related issue

A third party proceeding may also be for the determination of any question or issue relating to or
connected with the original subject matter of the original action, which should be determined not
only as between the plaintiff and the defendant in the original action but also between either or
both of them and a person not already a party to the original action.
Limitation on scope of third party proceeding
1. Factors in original suit and third party proceeding must be related
166

Eden vs. Weardale Iron & Coal & Co. (1884) 28 CHD 333
Obango vs U.T.C [1975] HCB 118 Namuddu vs Admin.Gen [1975] HCB 220
168
Birmingham & District land Commission vs. London North Western Railway Co. (1886) 34 CHD 261
169
Wynne vs. Tempest [1897] 1 CH 10 at 113
170
Eastern Shipping Co. vs. Quah Bengkee [1924] AC 177 at 182
171
Swansea Shipping co. vs. Duncan [1876] 1 QBD 644 In order for third party to be lawfully joined, the
subject matter between the plaintiff and the defendant; and that between the defendant and third party; and
the original cause of action must be the same. Transami (U) Ltd. vs. Transocean (U) Ltd. [1991] HCB 59
167

41

The real question in determining whether resort may be had to third party proceedings is
whether the facts upon which the plaintiff relies on against the defendant in the main action
issue or arise out of the relations between the defendant and third party.
There must be a connection of fact or subject matter between the cause of action upon which
the plaintiff sues in the main action and the claim of the defendant against the third party.
2. Third Party claim for an independent claim
Independent claim
One cannot attach a third party claim for contribution or indemnity onto an independent or
personal claim that has nothing to do with the plaintiffs claim in the original action such a
third party proceeding was not allowed where a defendants claim against a third party was
for the defendants claim was against a third party for damages for breach of contract which
might be different in amount from the plaintiffs claim against the defendant in the original
action for damages arising from negligence.
3. Similar claims
In a third party proceeding, there need not be a similarity in the form of action of the main
action and the third party proceeding (for instance, the main action may sound in tort and
third party proceeding in contract) nor is it a bar to third party proceeding that simple
negligence in the issue in the main action and gross negligence in the third party proceeding.
4. When amount of claim not ascertained
A claim for contribution and indemnity may be made against a third party even though the
precise amount of the claim for which the relief is sought has not been finally settled.
5. Damages in third party claim
There need not be equivalence in the measure of damages in a third party proceeding with the
main action.
6. Cause of action against third party
Notwithstanding that there must be a common question between the plaintiff and defendant in
the main action and the defendant and third party in the third party proceeding, there must
also be an existing cause of action between the defendant and the third party proceeding.
7. Identity of claims
Where a right to contribution or indemnity against a third party is given by a statute, the
wording of statute may provide that it is not necessary there to be identity between the claim
made against a third party and that made by the plaintiff in the original action.
8. Establishing liability of parties

42

Where it is desirable, a defendants liability to the plaintiff should be established in the main
action in such a way as to be binding upon the third parties even though all the matters in
dispute between the defendant and third party cannot be determined in the action.
9. Prejudicial Third Party claims
A third party proceeding should not be allowed to enforce a claim in which the plaintiff is not
involved and which is prejudicial to the plaintiff and unnecessarily delays the rendering of
judgment for the plaintiff.
10. Independent claim against third party
Where a defendant has a cause of action against a third party that is independent of the
liability of the defendant to the plaintiff in the main action, the commencement of a third
party proceeding would not be proper. Likewise, if a plaintiff fails to recover damages
against the defendant in the main action, the latters claim against the third party will suffer
the same fate.
However, where a defendant settles in advance of the plaintiffs claim in the main action, the
defendant may still recover the amount of settlement paid by him to the plaintiff from a third
party as contribution or indemnity even if it was subsequently held in the main action that the
defendant had not been guilty of negligence.
11. Prima facie claim
For a third party proceeding, it is sufficient if only a prima facie case relating to a material
question in the main action is made out and the plaintiff in the main action will not be
prejudiced or delayed.
12. Subsequent claim against third party
Where the liability of the proposed third party arose after liability of the defendant to the
plaintiff had been incurred, it cannot be said that the claim against the third party issued out
of the relations between the defendant and third party.
13. Where the damages not claim in original action/suit
Where the plaintiffs claim in the original action was for specific performance alone and not
for damages as well, and then third party claim may not lie.
14. Joint liability
Where there is a joint liability on the part of third parties, a third party is entitled to compel
the defendant to add the other joint person as a third party.
Costs on third party proceeding
The courts may make such orders as to costs between the plaintiff, defendants and third party
and subsequent parties as justice of the case may require. Where the rules provide, a plaintiff

43

may be awarded costs against the third party. 172 When the plaintiff in a third party proceeding
succeeds in an action for indemnity, he may recover from the third party. A third partys
costs, whose addition was not necessary, can be ordered to be paid by the plaintiff whose
action was dismissed. A successful, third party is normally entitled to costs against a
successful defendant in the main action.
Third Party Notice against Government
Leave to issue a third party notice for service on the Government shall not be granted unless the
court is satisfied that the Government is in possession of all such information as it reasonably
requires as to the circumstances in which it is alleged that the liability of the Government has
arisen and as to the departments and officers of the Government concerned. 173
INTERPLEADER
Where a stakeholder, with no personal interest in property he is holding, receives rival claims to
such property from two or more other persons he may seek relief by way of interpleader; that is,
the rival claimants will be made to argue their claims against each other (interplead) before the
court where the interpleader may be instituted.
Where two or more persons claim adversely to one another and the same debt, sum of money or
other property, movable or immovable from another person, who claims no interest therein other
than for charges or costs and who is ready to pay or deliver to the rightful claimant such other
person may institute a suit of interpleader against all claimants. 174
Under O.34 r 2 it is provided; In every suit of or application by way of interpleader the applicant
shall satisfy the court by way of affidavit or otherwise:(a) that the applicant claims no interest in the subject matter in dispute other than for charges or
costs.
(b) That there is no collision between the applicant and any of the claimants.
(c) That the applicant is willing to pay or transfer the subject matter into court or to dispose of it
as the court may direct.
Nature of interpleader relief
The basis of the right to interpleader relief is in the existence of a conflict between two or more
persons claiming the same property or debt.175
The object of an interpleader proceeding is to extricate an applicant from the embarrassment of
being sued by more than one party in respect of the same subject matter and if putting the
claimants in a position of using interpleading proceeding if they wish to enforce their claims.
Nature of property involved in an interpleader issue
172

Edison and Swan Electric Light Co. vs. Holland (1889) 41 CH.D 28
Rule 8 of The Government Proceedings (Civil Procedure) Rules SI 77-1
174
S. 59 of Civil Procedure Act
175
Famous Cycle Agency Ltd. vs. Mashulular Ramji H.C.C.S No. 88/1992 [1994] V KALR 58
173

44

Interpleader will lie where the seized property is partnership property was jointly or severally
owned.
Application for interpleader relief
The rules of court provide that where a person is or expects to be sued by two or more claimants
making adverse claim to:
1. any property or the proceeds thereof, including real estate in some jurisdictions or only to
money, goods, chattels or
2. to a debt which the holder is not disputing.
The holder may make an application to the court for an order for interpleader relief by having
the claimants appear in court to establish and have settled their respective claims to the
property or debt.
Where an action has been commenced by one or more claimants against the holder, the
application is made by interlocutory application 176or where an action has not been
commenced, the application is made as an originating summons supported by an affidavit. 177
Affidavit in support of application for interpleader
An application for interpleader relief should be supported by an affidavit showing the following:1.

That the applicant claims no beneficial interest in property in dispute than for charges or
costs. An application is not barred because he has a lien over the goods in question for
storage, or a claim for commission on the sale of goods. An application is barred where
he has no claim to the subject matter of the claim but has a financial stake in the result of
the proceeding.

2.

That the applicant does not collude with any claimant to the property. Collusion does not
necessarily entail anything morally wrong, but the applicant must on play on the said as
one of the claimants.178

3.

That the applicant is willing to deliver the property to the court or to dispose of it as the
court directs. This provision has been broadly interpreted and provides relief not only in
respect of any debt, money or goods but also in respect of chattels and choses in action.
A claimant in turn must also support his claim by a personal affidavit on the application
for interpleader.179

Conditions for relief by applicant for interpleader relief

1.

Expectation of or Actual suit

176

O.34 r 1 (a)
O.34 r 1 (b) Makabugo vs F.D. Serunjogi [1981] HCB 58
178
Fredericks and Pelhams Timber Buildings vs. Wilkins [1971] 3 ALL ER 545 at 551
179
Plastics Ltd. vs. Gordon Rossal Plastics Ltd. [1950] 1 ALLER 241
177

45

An applicant for interpleader must be sued or expects to be sued, and if he expects to be

sued, there must be real foundation for the expectation, a mere anticipation is
insufficient.180 The interpleader will be refused when the applicant knows that the
litigation between the claimants is about to be settled or when the applicant knows that
the allegation that an action is threatened is groundless or when there is genuine doubt
whether any adverse claim existed; such as insurance moneys payable under a fire
insurance.181
2.

Applicant in Possession of disputed subject matter

An applicant for interpleader relief must be in possession of the subject matter in dispute
for under the rules he must satisfy the court that he is willing to pay or transfer the
property in court. if the applicant has disposed of the property, it is not sufficient for
interpleader relief for the claimant to offer pay over the value of the property to the
person entitled.

3.

Adverse claims by claimants

For interpleader, there must be adverse claims to the same property or debt by the
claimants.182 The adverse claims need not have a common origin. The claim must be
actual and not merely anticipatory, but the claim may be in nature of lien or right to
possession.

4.

Applicant Liable to only one claimant

Liability only lies when the applicant is liable to only one of the claimants in respect of
the same subject matter183 and an interpleader relief will be refused, where it appears that
the applicant is liable to both claimants.

5.

Adjudication in other proceedings

Interpleader applications are generally refused when the matter can be adjudicated in
other proceedings.

6.

Applicants claim finalised

An application for interpleader relief should be made immediately before or after the
commencement of the proceedings and should not be granted where a claimant has
already obtained judgment against the applicant for a debt or where the applicant has
already paid over the money to a claimant entitled to the relief or where the judgment has
been given by consent.184

7.

Cause of action by each claimant

Each claimant must have a cause of action against the applicant, so interpleader does not
lie where the applicant is under an obligation to only one of the claimants, such as when

180

Watson vs. Part Royal (Caterers) [1961] 2 ALLER 346

Suns Insurance Office vs. Galinsky [1914] 2 KB 545
182
Sargent vs. Gautama [1968] EA 338
183
Greatovex vs. Shackle [1895] 2 QB 249
184
Plant vs. Collins [1913] 1 KB 242
181

46

the applicant by the assignment of a contract has a given colour of title to a claimant or
where a claimant may pay only one of the only without incurring liability.
8.

Agent or Bailees
An application for interpleader relief who is in possession of goods say as agent or bailee
under a contract with one of the claimants is not barred from obtaining the relief.
Claimants on interpleader may include husband and wife 185a partner
claimant,186claimant of Trustee property187attaching creditors or assignees etc.

9.

as

The hearing of the application for interpleader relief

On the hearing of the application for interpleader relief, the court will usually grant an
order releasing the applicant from the conflicting claims and order the payment of his
costs and charges upon delivering custody of property to the court. The charges would
include the applicants out of pocket expenses for his care and trouble with custody of the
property.
Following the determination of whether the applicant for interpleader relief should be
granted, the court must then determine the issue between the claimants.
The granting of interpleader relief is discretionary and cannot be claimed as of right. The
court will exercise its power when its satisfied that in the circumstances of the case, its
just and proper that relief should be granted. 188

10.

The Procedure
The application for interpleader is by originating summons under S.60 (now 59) of Civil
Procedure Act and O.31 r 1(now O.34) and O. 34 r 7.189
The summons must be served on the plaintiff if proceedings have already been issued and
on both or all the claimants to the property. If proceedings have not yet been issued, the
court may either:
(a) Order that the issue be stated and tried, with a direction as to who should be plaintiffs
and defendants.
(b) If all parties consent or the facts are not in dispute, summarily determine any
question of law and resolve the dispute.
(c) If a claimant fails to attend, order that he should be debarred from prosecuting his
claim against the stakeholder.

185

De la Rue vs. Herny Person & Stockwell Ltd. [1930] 2 KB 164

Peake vs. Carte [1916] 1 KB 652
187
Usher vs. Martin [1889] 24 QBD 272
188
Exparte Mersey Docks and Harbours [1899] 1 QB 646 at 551
189
In Re Messrs Katende Sempebwa HCCS NO.521 of 1996 (Unreported)
186

47

CHAPTER THREE
CAUSE OF ACTION
Definition

48

A cause of action can be defined as the fact or combination of facts which gives rise to a right of
action.
Determinants of cause of action
According to a leading case of Auto Garage vs Motokov190 there are three essentials to support or
sustain a cause of action.
(i)

The Plaintiff enjoyed a right.

(ii)

The right has been violated.

(iii)

The defendant is liable.

If any of these essentials is missing, the plaint is a nullity and ought to be struck off. 191
Cause of action has been held from the earliest time to mean every fact which is material to be
proved to entitle the plaintiff to succeed every fact which the defendant would have a right to
traverse.192
It is important to note 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.193
To determine whether or not a plaint discloses a cause of action, the court must look only at the
plaint and its annextures if any, and no where else. 194In the case of Al Hajj Nasser N. Ssebaggala
vs Attorney General & others195 the constitutional court defined a cause of action as follows:
A cause of action means very fact, which if traversed, would be necessary for the
plaintiff to prove in order to support his right to a judgement of court. It must include
some act done by the defendant and, it is not limited to the actual infringement of the
right sued on but includes all the 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 not proved would give
the defendant a right to an immediate judgement must be part of the cause of action. It
has no relation to the defence, 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.
For example when a cause of action is founded in a determinate tort e.g. negligence, there are
corner stones on which it will be based.
190

[1971] EA 314 Sempa Mbabali vs. Kiiza [1985] HCB HMB Kayondo vs. AG [1987] KA
Priamit Enterprises Ltd vs Attorney General S.C.C.A No.1 of 2001
192
Cooke vs. Gill [1873] LR 8CP 107 at 116 Uganda Aluminium Ltd. vs. Restuta Twino Mugisha CACA
No. 22 of 2000 Tororo Cement Company Ltd. vs. Fronkina International Ltd. CACA No. 21 of 2000
unreported
193
Ibid
194
Kapeeka Coffee Works Ltd. & Another vs. NPART CACA No.3 of 2000 (unreported). Where the court
considers irrelevant matters in rejecting a plaint as disclosing no cause of action it shall be set-aside on
appeal. Mulindwa Birimumaso vs Government Central Purchasing Corporation CACA No.03 of 2002
195
Constitutional Petition No.1 of 1999
191

49

Actionable negligence consists in the neglect of the use of ordinary care and skill towards a
person to whom the defendant owes a duty of observing ordinary care and skill, by which neglect,
the plaintiff without a contributory negligence on his own part, has suffered injury to his person
or property.
O.7 r 11(a) provides that a plaint shall be rejected where it does not disclose a cause of action. 196
A plaint without a cause of action is nothing as there is no basis or locus for such party to be
before court in the first place.
Joinder of causes of action
Save as otherwise provided, a plaintiff may unite the same in several causes of action against the
same defendant or the same defendants jointly; and any plaintiffs having causes of action in
which they are jointly interested against the same defendant or defendants jointly may unite such
causes of action in the same suit.197
The joinder of causes of action not only has an effect on reducing the number of actions but also
on who should be parties to an action.
The rules provide for joinder of causes of action with the right of the court to order separate trials
if necessary.198
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.199 An example where the plaintiff had two causes of action
properly brought before courts personal action by which he sought courts protection of his
pecuniary interest in the company and a derivative action by which he sought courts protection
for the good of the company generally against waste by the directors. 200
Principles applicable to joinder of causes of action
The courts have laid down the following principles with respect to the joinder of causes of action
for claims.
1.

Trend to encourage Joinder

The trend of modern jurisprudence is to extend the application of the rules of court to
have all the issues between the parties dealt with in one action and to diminish the costs
of litigation.

2.

Different capacities of parties

Different causes of action may arise out of the fact that a party may sue or be sued in
different capacities. If one sues personally and as an executor, he is in effect suing as two
separate and distinct persons with cause of action. 201

196

Ali Mustafa vs. Sango Bus Co. [1975] HCB 93, Tororo Cement Company Ltd. vs Frokina International
Ltd. CACA No.21 of 2000 (unreported)
197
O.2 r 2
198
O.2 r 5
199
O.2 r 6
200
Christopher Kayoboke vs. Amos Agaba & Others H.C.C.S No. 630 of 1991
201
Bolton vs. Salim Khambi [1958] EA 360

50

3.

Plaintiff with different causes of action

Different plaintiffs may have different causes of action against the same defendant. This
is generally permitted under the rules where the causes of action arise in respect of the
same transaction or series of transaction or where the court authorizes the joinder. The
joinder is discretionary with court.

4.

Causes of action with different defendants

Where a plaintiff has different causes of action, the court may provide for compensation
to any defendant for being required to attend, or a defendant may be relieved from
attending any part of a trial in which he has an interest. The court may also hold that the
joinder of causes of action or parties improper.

5.

Plaintiff determines Joinder

A plaintiff has the option of determining which cause of action he will join, but when a
cause of action against a defendant arose subsequent to the issue of summons, joinder of
the claim is improper. Action by several plaintiffs on identical contracts entered with
each individual was proper but generally a large number of causes of action of over
twenty separate claims cannot be combined in one action. 202 Joinder of defendant,
against whom the plaintiffs make no claim is not permitted unless a very clear and strong
case was made that the joinder was necessary for determination of the action.

6.

Where the plaintiff claims no relief against a person

Where a plaintiff claims no relief against a person, the defendant cannot join the person
or a counterclaim or third party proceeding as under the rules, nor may the defendant add
a person as a co-defendant in order to establish a counterclaim where no relief is claimed
against a defendant, his name should be struck out. The rules provide that it is not
necessary for every defendant to be interested in all relief claimed of in every claim in the
action.

7.

Trial of several causes of action in an action

Where there are several causes of action in an action, the court may order separate trials
in respect of certain claims or order that the trial judge determine which issues are to be
tried by the judge and the discretion of the judge will prevail unless he acted on a mistake
of law or there is a clear case justifying the court interfering. 203

8.

Refusal of Joinder of causes of action

Joinder of causes of action should not be permitted if they cannot be disposed of
conveniently in one action or their joinder would be considered too oppressive.

9.

202
203

Entirely separate causes of action refused joinder

Sacchain Corp. Ltd. vs. Wild [1903] 1 CH 410

Re Martin (1882) 20 CHD 365

51

Entirely separate causes of action against a defendant cannot be joined as alternative

claims.
10.

Joinder of joint causes of action

Where there are joint causes of action, the plaintiff may join the wrong doers as
defendants with the plaintiffs claim against one being in contract and against the other in
a claim which is independent of contract.

Trial of causes of action in an action

Where several causes of action are joined in the same cause of action, which cannot be disposed
of conveniently in the same action, the rules give court jurisdiction to exclude any cause of action
or to provide that any action may be tried separately.
Certain principles have evolved over the years with respect to the trial of causes of action in an
action such as:1.

Joinder of losses
A plaintiff must sue in one action for all his past, present and future losses, whether
known or unknown arising out of a cause of action, with a final assessment of damages
being made in the one action, which is a bar to any subsequent proceeding.
Rules now permit the court to assess damages in whole or in part before or during trial to
give judgment in the issue of liability with damages, if any to be subsequently assessed.

2.

Joinder of remedies
Where separate remedies arise in a cause of action, a plaintiff cannot omit to a remedy in
the initial action and later claim it in a subsequent action, for a plaintiff must claim all the
remedies he seeks in the same action.204
However, this does not bar the plaintiff from seeking for other remedies that could arise
from the cause of action.205

3.

Doctrine of Res Judicata

Except in certain special cases, the doctrine of res judicata renders a judgment in a prior
action as a bar to further proceeding arising from the same cause of action 206. To be a bar,
the circumstances must be such that the plaintiff might have recovered in the initial action
which he seeks in the subsequent action.

4.

Damages for a continuing cause of action

Damages for a continuing cause of action which arises from the repetition of similar acts
or omissions, are assessed to the date of commencement of the action or assessment of

204

William vs. Hunt [1905] 1 KB 512

Godrei, Foncard & Sons vs. Sinclair [1916-17] ALLER 898
206
S.7 Civil Procedure Act Kamunye vs Pioneer General Assurance Society Ltd [1971] EA 263, Semakula
vs Mugala [1979] HCB 90
205

52

the damages, and thereafter the repeated acts or omissions give rise to anew cause of
action.207 A continuing cause of action, usually arises in tort or in a breach of contract of
a continuing nature which gives rise to a new cause of action for each breach or such
failure to keep in repair or where a defendant has unequivocally indicated that he will not
perform his part of a continuing contract, the plaintiff is entitled to have the damages
assessed for future as well as for past breaches without bringing successive actions.
5.

Whether judgment creates an estoppel

A cause of action which has changed into a matter of record by a judgment does not
create an estoppel.
(a) Where the causes of action are separate, such as when a judgment was obtained for
the cost of carrying one package of goods, the plaintiff is not estopped from suing the
same defendant on a cause of action for the costs of carrying another parcel of goods.
(b) Where a judgment against a person who was not a party to the contract does not
prevent a judgment being recovered against the real contracting party. 208
(c) Where a plaintiff is not estopped from bringing an action in a representative capacity
on behalf of another after bringing an action in personal capacity. 209

CHAPTER FOUR
LIMITATION OF ACTIONS
INTRODUCTION
One of the most important tasks which an advocate needs to undertake when a client first comes
to him/her with details of a claim, is to ascertain when the relevant limitation period will expire;
for nothing is calculated to cause more anguish to a claimant or more acute professional
embarrassment to an advocate than to have a claim barred on account of the advocates failure to
207

Westleigh Colliery Co. Ltd. vs. Tunn, Cliffee Hompson Ltd. [1904-07] ALL.ER 189
Isaacs V. Sons vs. Salsbstein [1916-17] ALL.ER 386
209
Marginson vs. Blackburn Borough Council [1939] ALL.ER 273
208

53

file a plaint within the time specified by the relevant statute of limitation, in this connection, it is
noteworthy that court process must be filed within the limitation period; it need not be served on
the defendant within the limitation period. If the court process is filed out of time, the defendant
will have an impregnable defence, whether or not he pleads limitation in his defence. Court can
on its own discretion take cognizance of the fact of limitation. 210
The party who is going to sue should make certain that he is bringing his action in time and
should be sure that he is not suing prematurely.
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 the limitation is that potential defendants should not have to live with the
risk of legal action indefinitely if for one reason or another a 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. Their overriding purpose
is interest republicae ut sit finis iitum, meaning that litigation shall be automatically stifled after
fixed length of time, irrespective of the merits of a particular case 211.
There is a limitation of action at common law and the rules are the creature of statute, that where
a cause of action is not covered by statute, and limitation period is applicable. Apart from the
equitable doctrine of laches applicable to equitable remedies, no statutory provision, means no
limitation period.
The Limitation Statutes in Uganda are the Limitation Act Cap 80 and the Civil Procedure and
Limitation (Miscellaneous Provisions) 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.
Thus, in the case of contract, which is actionable without damage being suffered, a cause of
action will arise for breach of contract as soon as the breach occurs, by contract, since negligence
in tort is actionable only when damage is suffered.
The identification and classification of the cause of action can therefore be of vital importance
with regard to both these major principles of limitation legislation.
The general law of limitation must be distinguished from substantive time limits on the bringing
of proceedings imposed specifically by individual statutes which make the particular proceedings
possible by conferring the remedy.
210
211

Charles Mpiima vs. Attorney General HCCS No. 980/1990 [1990-1991] 2 KALR 54
Hilton vs Sulton Steam Laundry [1946] 1 KB 1 at 81

54

These substantive restrictions operate as an individual code of restriction on the particular remedy
in substitution for the general limitation period more widely operative.
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.212 It must be noted that the cause of action is the composite of
the matters that must be proved for the action to be successful.
Competent parties
For a cause of action to arise for limitation purposes there must be 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.213 Until this situation occurs no cause of action can arise.
Time cannot run where the potential defendant is dissolved. 214 Also where no defendant against
whom success could be achieved if the potential defendant is protected by diplomatic privilege,
and accordingly the cause of action was therefore incomplete. 215
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/she ceases to be an enemy
alien.216
Consecutive causes of action
Since it is the cause of action, which becomes barred by virtue of the expiration of limitation
period prescribed by the legislation. Where there are any activities giving rise to single cause of
action occasioning two separate sets of damages, one which completes the cause of action, and
the other arising after the completion of the limitation period which begins to run on the first set
of damage, proceedings can be brought in respect of the former within the limitation period but
cannot be maintained in respect of the latter. The general rule is that only one cause of action can
be brought in respect of a cause of action.
This situation, must however be closely distinguished from the situation which can arise where a
defendants activities give rise to consecutive cause of action. This will normally arise where a
defendant is under a continuing duty which he breaches on separate occasions, possibly years
apart.217
Concurrent causes of action
There are situations which can give rise to concurrent causes of action. This is particularly true in
respect of acts of negligence, where the negligence can be perceived as involving breach of
contract, or a tort or both.
212

S.2 of Limitation Act Cap 80

Thomson vs. Lord Clan Morris [1900] 1 CH 718
214
Re Russo Asiatic bank [1934] CH 720
215
Musurus Bey vs. Gadban [1894] 2 QB 352 CA
216
Sorfracht (v/o) vs. Van Udens Sheepwaart en Agentuur Maatschapij (NV Gebr) [1943] AC 203
217
Darley Maine Colliery vs Mitchell (1886) 11 APPCAS 127
213

55

The respective ambits of contract and tort were much more clearly defined and separated and the
courts adopted a position that where there were concurrent causes of action, a plaintiff was
entitled only to the shorter of the possible limitation periods. 218
However, court noted that there could be concurrent liability in contract ad in tort and indeed in
this particular case found the defendant liable on both grounds. 219 An amendment introducing a
new cause of action to defeat the defence of limitation should not be allowed. 220 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 limitation would be defeated, the court has never treated it as just to deprive
a defendant of a legal defence.221
Since different limitation periods attach to different causes of action, and different causes of
action are complete at different times so allowing limitation to begin to run, a correct
identification of the nature of the action available in particular circumstances is important to an
accurate resolution of limitation issues.
Once statute barred, always statute barred
An underlying principle of the law of limitation is that, once a cause of action has become statute
barred, subsequent developments cannot revive it. This principle is capable of working in a
variety of circumstances.222
Where there are repeals in a limitation statute, it may not affect rights of individuals based on the
principle of statutory construction. When a plea of limitation is available to a defendant,
constitutes a substantive right, which should not be taken away from him/her. This basic attitude
underpins the policy, which gives rise to the principle that once statute barred always statute
barred.
The approach was clearly articulated by Lord Bridge in the Arnold case.
Consistently with the presumption that a statute affecting substantive rights is not to be
construed as having retrospective operation unless it clearly appears to have been so
intended, it seems entirely proper in a case where the retrospective operation was clearly
intended, it seems entirely proper in a case where the retrospective operation was clearly
intended, equally to presume that the retrospective operation of the statute extends no
further than is necessary to give effect either to its clear language, or to its manifest
purpose.223
Where the time to institute an action is set by legislation then the 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 courts hands are tied. They cannot enlarge the time. 224

218

Groom vs. Crocker [1939] 1KB 194. Bagot vs. Stevens, Scanlan & Co. Ltd. [1966] 1 QB 197
Midland Bank Trust Co. Ltd. vs. HCH Stubbs & Kemp [1979] CH 384
220
Auto Garage & Others vs. Motokov [1971] EA 514
221
Mabro vs. Eaglestar & British Dominions Insurance Co. [1932] 1 KB 485
222
Nicholson vs. England [1926] 2KB 93 Arnold vs. Central Electricity Generating Board [1988] AC 288
223
Arnold vs. Central Electricity Generating Board (ibid)
224
Paul Erongot vs N.P.A.R.T Civil Misc.Application No.17 of 1997
219

56

In the case of Makula International Ltd vs His Eminence Cardinal Nsubuga225 the then Court of
Appeal held inter alia that:
A court has no residual or inherent jurisdiction to enlarge time laid down by a statute and
therefore the judges 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 the commencement
Once the action has accrued as a general rule time begins to run provided that there are both
competent plaintiff and defendant and226until when the suit is filed and not when service is
effected.227
When an action has once accrued and the statute has begun to run, there being a capacity of suing
and being sued, the statute continues to run. Exceptionally this is not the case where the action is
based upon.
1.

The fraud of the defendant

2.

Any fact relevant to the plaintiffs right of action has been deliberately concealed from
him by the defendant.

3.

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 anytime before the expiration of six years from the date
when he ceased to be under disability or died.
The commencement of proceedings stops running if the time in respect of the particular cause of
action on which the proceedings are based. Consequently, once, the limitation period has expired,
existing proceedings may be amended provided that the substance of the allegations remain
constant, but new proceedings may not be commenced.
However, it should be carefully noted that the commencement of proceedings does not stop time
running in respect of other causes of action and proceedings based upon them. 228 The general
principle applicable to running of time is that, once begun, it continues and will not be suspended.
The suspension can only arise by statutory exceptions permissible by that statute provided a
specific exception in the case of disability.

225

[1982] HCB 11
Al Hajj Nasser Ssebaggala vs Attorney General &Others Constitutional Petition No.1 of 1999
Rhodes vs. Smethurst 1838 4M & W42 59
227
Fxs. Miramago vs. Attorney General [1979] HCB 24
228
Virgo Co. S.A. vs. Scaarp Shipping Corp. [1988] Lloyds Rep. 552
226

57

Even in situations where a person occupies two capacities at once, and is precluded from suing
himself in the other capacity time running will not be suspended. 229
Computation of time
The limitation of actions removes a plaintiffs remedy and in some cases his right, at a fixed
period of time from the accrual of the cause of action. This requires precise rules for calculation
of that period.
Where the plaintiff pleads facts from which reasonable inferences can be made that the suit is not
time barred, then the issue of limitation is a triable issue, which could only be determined after
hearing the evidence on the matter.230
As a general principle the courts will disregard parts of a day in calculating the expiry of the
limitation period.231The day of the accident is to be excluded from the computation of the
limitation period as provided under the Interpretation Act. 232
Section 34 provides;233
(1) In computing time for purposes of any Acta) A period of days from the happening of the event or the doing of anything shall
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 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 certain
day, then if that day happens to be an excluded, 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
When it is impossible to issue process on the last day
Where the time for doing any act or taking proceeding expires on a Sunday or other day on which
the offices are closed, and by reason thereof such act or proceeding cannot be done or taken on
that day, such act or proceeding shall, so far as regards the time of doing or taking the same, be
held to be duly done or taken if done or taken of the day on which the offices shall next be
open.234
The effect of expiration of a limitation period
The general effect of the expiration of a limitation period is that the remedy is barred, but the
plaintiffs right is not extinguished. While the plaintiff is precluded from seeking a judicial
means of enforcement of his right, his right is in all other respects recognized by the law and will
229

Bowring & Bandburys Trustee vs. Bowring Handbury [1943] 1 ALL.ER 48

Sayikwo Muroma vs Yovan Kuko and Another [1985] HCB 68
231
Radcliffe vs. Bartholomew [1892] 1 QB 161, Marren vs Dawson; Bentley & Co. Ltd. [1961] 2 QB 135
232
Nyarbungu Tin Mines Ltd vs A.G [1972] ULR 92
233
Interpretation Act Cap 3
234
O.51 r 3 Bulenzi vs. Wandera [1990-91] 1 KALR 107 Pritam Kaur vs. R. Russell & Sons Ltd. [1973]
QB 336
230

58

be free to enforce it by any other lawful means for example use of alternative cause of action or
self-help.235
In some circumstances, however, the expiration of the limitation period causes the plaintiff to lose
his substantive right. While the defendants must plead limitation if he wishes to rely on a
limitation point in any proceedings, the loss of the plaintiffs substantive right will prevent him
from using extra-judicial means to achieve a remedy, since his substantive right to do so will have
come to an end.
DEFENCES TO LIMITATION
Where the suit is instituted after the expiration of the period prescribed by the law of Limitation,
the plaint shall show the grounds upon which exemption from that law is claimed. 236
The provisions of this rule are mandatory and ignorance could not be a disability for purposes of
Limitation.237
Disability
A person shall be deemed to be under disability while he is an infant, or of unsound mind. 238
Since the legislation is clear and specific, no other basis of disability calls for recognition under
the law.
Infancy
This is another word for a minor. The law on children provides that children are persons under
the age of sixteen.239 Also in the Childrens Act, a child is a person below the age of eighteen
years.
Earlier decisions of court have held that the age of a minor in Uganda is twenty-one and someone
below twenty-one years cannot institute a suit without a next friend. 240
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.
A person shall be conclusively presumed to be of unsound mind while he is detained in pursuance
of any enactment authorising the detention of persons of unsound mind or criminal lunatics. 241

235

Allen vs. Waters & Co. [1935] 1 KB 200

O.7 r 6
237
Mugabi vs Nyanza Textile Industries Ltd [1992-93] HCB 227
238
S.1 (3) Limitation Act Cap 80 However in the case of Fred Mungecha vs A.G[1981] HCB 34 court held
that imprisonment is a disability.
239
Article 34 (5) Constitution S.3 Children Statute No.6/1996
240
Bibonde vs. Waiswa [1974] HCB 21 Khiddu Musisi vs. Iyamulemye [1964] HCB 81 Kimera vs.
Jiwani [1971] ULR 194
241
S.1 (4) of Limitation Act. See also The Mental Treatment Act cap 279
236

59

Effect of disability
Disability does not prevent the person affected from bringing or defending an action, although he
may not do so on his/her own behalf. In case of a plaintiff who suffers from disability, the action
will be by a next friend242and in case of a defendant suffering from disability a guardian ad litem
is appointed to represent his interests. 243 Consequently, particular provision was felt necessary to
protect such a persons interests for limitation purposes.
When any right of action accrued for 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 a disability or died. 244 In case of
negligence, nuisance or breach of duty where damages are claimed the period for bringing action
under disability shall be three years.245
The provision is quite restrictive in its operation. If the plaintiff is not suffering from disability
when the cause of action arises, any subsequent disability will not suspend the running of time. 246
In addition, where the plaintiff does suffer from a disability when his right of action accrues,
ceases to do so, but then becomes disabled again, time begins to run as soon as the disability
ceases, and its subsequent recurrences does not prevent time continuing to run. 247
It is only if the disability existed at the time when the cause of action accrued that the running of
time is postponed.
If a potential plaintiff is suffering from the disability of infancy at the time the action would have
accrued, and subsequently becomes of unsound mind before reaching his majority, his disability
will continue until he recovers from his unsoundness of mind even though he achieves his
majority before this occurs.248
Disability is a triable issue requiring both parties to the suit so that the issue of disability could be
tried and determined with evidence.249
Acknowledgement and part payment
Acknowledgement by the defendant to the plaintiffs rights or the defendant making a part
payment will revive the cause of action.250
The theoretical basis of the development of the concept of a promise to pay arising from the fact
of the acknowledgement of the plaintiffs right. 251it followed that if the acknowledgement was

242

O.32 r 1
O.32 r 3
244
S.21 (1) Limitation Act
245
S.21 (2) a
246
Purnell vs. Roche [1927] 2 CH 142
247
Kirby vs. Leather [1965] 2 QB 367
248
Borrows vs. Ellison [1871] LR 6 Exch. 128
249
Joweria Namaganda vs. Attorney General HCCS No.594 of 1992 [1996] II KALR 83
250
S.22 Limitation Act Cap 80
251
Surrendra Overseas Ltd. vs. Government of Sri Lanka [1977] 1 WLR 565
243

60

made in circumstances from which no promise to pay could be inferred time would continue to
run uninterrupted.252
-

It applies where any right of action (including a foreclosure) to recover land, or any right of a
mortgage of a personal property to bring a foreclosure action in respect of the property, has
accrued.

Also, it applies where any right of action has accrued to recover any debt or other liquidated
pecuniary claim.

The law further provides that any such acknowledgement shall be in writing and signed by the
person making the acknowledgement. 253 When a plaintiff has a claim which is statute barred, and
intends to rely upon the defendants acknowledgement, the acknowledgement should be pleaded
in his statement of claim. It is not appropriate to plead the underlying action in the statement,
await the defendants plea of limitation, and then serve a reply alleging acknowledgement, if the
plaintiff proceeds this way will be penalized by the court in costs. 254
However, for a plaintiff to plead acknowledgement it is prudent that the defendant should plead
the limitation defence in his pleadings.
Part payment
Part payment means payment in respect of the debt.
As noted in case of Surrendra Overseas Ltd. vs. Government of Sri Lanka, 255 where a defendant
admits to a claim in part but disputed the rest, and made payment of the sum which he admitted.
The plaintiff claimed that this was a part payment of the total, with the result that the limitation
period in respect of his whole claim was extended. The contention was rejected on the basis that
the payment made was not in respect of the whole claim, but merely in respect of the undisputed
balance.
What is a payment?
A payment may be made in both money and moneys worth. Thus an agreement that the creditor
should live rent-free at the debtors farm and provided with farm produce can constitute part
payment.256
An action arising from death of any person through negligence shall be commenced within
twelve calendar257 months after the death of such deceased person.
The Limitation Act provides for the following:
Actions for

Limitation period

Breach of Contract

6 years from date of breach

252

Spencer vs. Hemmerde [1922] 2AC 507 at 534

S.23 Limitation Act Supra
254
Busch vs. Stevens [1963] IQB I
255
[1977] 1 WLR 565
256
Ree Wilson and Wilson [1937] Ch. 675 Maber vs. Maber [1867] LR 2 Exch. 153
257
S.5 &6(3) The Law Reform (Miscellaneous Provisions) Act Cap 79
253

61

Torts

6 years

Judgment

12 years

Arrears of interest on judgment

6 years

Conversion and detention of goods

6 years

Recovery of land

12 years

Mortgage

12 years

Recovery of rent

6 years

Foreclosure and recovery of loans and mortgage

12 years

Fraudulent breach of trust

No limitation

Fatal accidents actions

12 months

Claims for equitable relief

No limitation period, but subject

to rule that discretionary remedies
will not be granted if the result
would be unfair and prejudicial.

Action claiming personal estate of a deceased person 258

12 years

LIMITATION AGAINST GOVERNMENT AND SCHEDULED CORPORATIONS

No action founded on tort shall be brought against the Government, a local authority 259and a
scheduled corporation260after the expiration of two years from the date on which the cause of
action arose.261e.g. False imprisonment is a continuing offence and the cause of action arises as
long as the imprisonment continues the effect of S.2 of Act 20/69(now S.3) was to wipe out so
much of the injury as fell outside the 12 months period of limitation. 262
No action founded on contract shall be brought against the Government or a local authority after
the expiration of three years from the date on which the cause of action arose. 263
Similar principles on disability are applicable to government, scheduled corporations and local
authorities within 12 months when the persons disability ceases. 264
258

Wilberforce John vs. Sezi Wako & Others CACA 1 of 1998 (unreported) S.21 of Limitation Act does not
limit an executor to apply for probate after 12 years.
259
Local Government Act Cap243
260
The Civil Procedure and Limitation (Miscellaneous Provisions) Act.
261
S.3 (1) of The Civil Procedure and Limitation (Miscellaneous Provisions) Act
262
Eridad Otabong vs. A.G. SCCA6/1990 [1991] ULSLR 150
263
S.3 (2) The Civil Procedure and Limitation (Miscellaneous Provisions) Act
264
S.5 ibid

62

Also, limitation is postponed in case of fraud or mistake. 265

However, the law governing the limitation against government was silent on the principle of
acknowledgement or part payment the court in resolving this issue noted that a special Act
prescribing time limit within which to bring actions against the Government local authority and
scheduled corporations was silent with regard to S.23 of the Limitation Act which provides for
acknowledgement and party payment a statute of general application which extended the
limitation where there is an acknowledgement or part payment of a debt alleged to be time barred.
In order to oust the provisions of S.23 of the Limitation Act, the Civil Procedure and Limitation
(Miscellaneous Provisions) Act would specifically contain a provision to that effect as it did in its
sections 4 and 5 with regard to the period of limitation specified in S.22 and S.26 of the
Limitation Act.266
Fraud, concealment and mistake
Where in any action for which there is a limitation period, such period of limitation shall not
apply when the action is based upon fraud, concealed by the fraud or the action is for relief from
consequences of a mistake. Until the plaintiff has discovered the fraud or the mistake with
reasonable diligence.267
The question of what amounts to reasonable diligence was considered as what the plaintiff ought
to do.
The plaintiff is not required to do everything possible but only do what an ordinary prudent
person would do having regard to all circumstances. 268
In an action for fraud, such case must be wholly based on fraud. An action is based on fraud
for this purpose when and only when fraud is an essential element of the plaintiffs claim. 269
Fraud must be attributable either directly or by necessary implication to the person
sued/defendant or such person must be guilty of some fraudulent act or must have known of such
act by somebody else and taken advantage of such act. 270
Concealment
The notion of concealment by fraud extends to any case where the defendant may be said to have
acted dishonestly or unconscionably and this can include the situation where the wrongful act
committed surreptitiously.
In addition deliberate commission of wrong circumstances in which it is unlikely to be discovered
for some time amounts to deliberate concealment.
The mere silence by a defendant can equally amount to concealment. 271
265

S.6 ibid
National Pharmacy Ltd. vs. KCC Civil Appeal No. 29/79 [1979] HCB 256
267
S.6 The Civil Procedure and Limitation (Miscellaneous Provisions) Act
268
Peco Arts Inc. vs. Hazlitt Gallery Ltd. [1983] 1 WLR 1315
269
Phillips Higgins vs. Harper [1954] 1 KB 550
270
Kampala Bottlers vs. Damanico (U) Ltd. SCCA No. 22 of 1992 (unreported)
271
Shaw vs. Shaw [1954] 2 QB 429 Victor Parsons & Co. [1973] 1 ALLER 706
266

63

Mistake
This ground for extending the limitation period has not been properly resolved in the courts of
law. It is necessary to note and distinguish between cases where both parties are mistaken and
cases where only one party is mistaken.
In the former class of case, time will begin to run as soon as the mistake takes effect and in latter
case time will not start to run until the party seeking to set the transaction aside has knowledge of
the mistake.
NEGOTIATIONS
Where negotiations are going on as the limitation time continues to run it is still incumbent upon
those who need to file documents to do so within the time allowed 272they are at liberty to seek
adjournments for purposes of negotiation once the suit is filed.

CHAPTER FIVE
RES JUDICATA
Introduction.
No court shall try any suit or issue in which the matter directly and substantially in issue has been
directly and substantially in issue in a former suit between the same parties, or between parties
under whom they or any of them claim, litigating under the same title, in a court competent to try
the subsequent suit or the suit in which the issue has been subsequently raised, and has been
heard and finally decided by that court.273

272

Peter Mangeni t/a Makerere Institute of Commerce vs. Departed Asians Property Custodian Board
SCCA No. 13 of 1995 (unreported)
273
S.7 Civil Procedure Act and S.210 Magistrates Courts Act

64

This section embodies the doctrine of res judicata or the rule of conclusiveness of judgements, as
to the points decided, in every subsequent suit between the same parties. It is aimed at
superfluous suits and is really one of convenience and rest and not of absolute justice. It is based
partly on the maxim of Roman Jurisprudence Interest reipublica utsit finis litium-it concerns the
state that there be an end to law suits and partly on the maxim Nemo debet bis vexari pro una et
eadem causa-no man should be vexed twice over for the same cause. 274
But for this rule there would be no end to litigation and no security for any person: the rights of
persons would be involved in endless confusion and great in injustice done under the cover of the
law. The rule is intended not only to prevent a new decision but also to prevent a new
investigation so that the same person cannot be harassed again and again in various proceedings
upon the same question.
This section (7) is not exhaustive of the general doctrine of res judicata.the principle of
conclusiveness of judgements is much wider than the terms of Section 7. Where circumstances
other than those provided for in this section exist, the principle underlying the rule of res judicata
may be invoked in a proper case without recourse to the provisions of this section. Therefore,
recourse may properly be had to the decisions of the English Courts, for the purpose of
ascertaining the general principles governing the application of the doctrine. However, the section
is exhaustive in respect of all cases that fall within its terms and in such cases the court cannot
travel outside the section and apply the general principles of law.
Definition, Scope and Object
The doctrine of res judicata means a thing or matter adjudged; a thing judicially acted upon or
decided; a thing or matter settled by judgement.275The term res judicata is used differently in
England and in Uganda. What the English lawyers call res judicata, namely, the rule which which
prevents a party from suing again on the same cause action is dealt with in Uganda by O.2 r 2,3
whereas what is known as res judicata in Uganda is dealt with in England under the branch of
law of estoppel by record which relates to judgements inter parties. But though the classification
is different, the content and form are essentially the same, and the consequences follow are the
same.

In order that a defence of res judicata may succeed it is necessary to show not that the cause of
action was the same but also that the plaintiff has had an opportunity of recovering, and but for
his/her own fault might have recovered in the first action that which he seeks to recover in the
second.
The decision must be a final one: the matter must have been distinctly put in issue: and then only
the precise point which was so put in issue and solemnly found against a party is deemed to have
been finally decided.276
The bar of res judicata is reciprocal and mutual to the parties in the later action: a judgement is
conclusive upon both the parties and merely as against the person who is defeated in the suit; in
other words, a party will be concluded against his contention by a former judgement if he could
274

Mandavia vs Singh [1965] EA 118 at 121

Pg 43 Judicial Hints on Civil Procedure 2nd Edition Richard Kuloba
276
Daniel Sempa Mbabali vs Kizza &Administrator [1992-93] HCB 243
275

65

have used it as a protection, had the judgement been the other way: and a person can claim the
benefit of a judgement as an estoppel upon his/her adversary, if he would have been prejudiced by
a contrary decision of the case.
The essentials for the applicability of the general principles of res judicata are well brought out
in the following observations of Sir William DeGrey in the leading case of the Duchess of
Kingstone277:
From the variety of cases relative to judgement being given in evidence in civil suits,these
two deductions seem to follow as generally true: first that a judgement of a Court of
concurrent jurisdiction,directly speaking on the point,is,as a plea,a bar,or as
evidence,conclusive,between the same parties,upon the same matter,directly in question
in another court;secondly,that the judgement of a court of exclusive jurisdiction,directly
on the point, is, in like manner,conclusive upon the same matter,between the same
parties,coming incidentally in question in another Court,for a different purpose.But
neither the of a court of concurrent or exclusive jurisdiction is evidence of any matter
which came collaterally in question,though within jurisdiction,nor of any matter
incidentally cognizable,nor any matter to be inferred by argument from the judgement.
This is clear that it is essential that the former judgement must be:
1. that of a court of competent jurisdiction278,
2. directly speaking upon a matter in question in the subsequent suit,and
3. between the same parties.
The following conditions are necessary:
1. The matter directly and substantially in issue in the subsequent suit must have been
directly and substantially in issue in the former suit. 279
2. The former suit must have been between the same parties or between parties under whom
they or any of them claim280.
3. Such parties must have been litigating under the same title in the former suit.
4. The court trying the former suit must have been a Court competent to try the subsequent
suit or the suit in which such issue is subsequently raised. 281
5. Such matter in issue in the subsequent suit must have been heard and finally decided in
the first suit.
The above prepositions have been summarized by the Court of Appeal: 282
To give effect to a plea of res judicata, the matter directly and substantially in issue in
the suit must have been heard and finally decided in the former suit. It simply means
nothing more than that a person shall not be heard to say the same thing twice over in
successive litigations.
Pleading res judicata
The defence of res judicata cannot be raised, unless it is specifically pleaded in defence.The plea
of res judicata is not confined to Section 7 of the Civil Procedure Act but may be invoked under
277

Pg 154 The Code of Civil Procedure Vol.II 4th Edition 1944

John William Kihuka & 2 others vs Personal Representative of Rt Rev Eric Sabiti [1995] V KALR 79
279
Karshe vs Uganda Transport Company [1967] EA 774
280
Gokaldas Laxilidas Tanna vs Sister Rose Muyinza HCCS No707 of 1987 [1990-91] KALR 21
281
Ismail Dabule vs Wildon Osuna Otwanyi [1992] I KALR 23
282
Lt David Kabareebe vs Maj Prossy Nalweyiso C.A.C.A No.34 of 2003
278

66

the general principles of law in appropriate cases and such a plea will prevail even where the
result of giving effect to it will be to sanction what is illegal or prohibited by law.If the legality of
an act is a point in dispute,it can become res judicata: if it is abandoned or not put forward by a
party,it will be deemed decided against him/her.
But the plea being one of restraint of the right of a litigant to have his case fully tried and
determined, the plea must be clearly established and the judgement which is pleaded in bar
strictly construed. The party pleading it must show from the record that the court found in his/her
favour in another proceeding and must produce all the relevant documents for that purpose.A plea
of res judicata must be raised by pleadings. 283
The party who is sought to be affected by the bar of res judicata should have notice of the point
that is likely to be decided against him/her and should have an opportunity of putting forward
his/her contentions against such a plea. A suit cannot be said to be barred by res judicata on the
face of the pleadings unless all the conditions requisite are stated in the pleadings itself. 284It is not
sufficient merely to plead the defence of res judicata without evidence to sustantiate it. 285
The plea of res judicata is not one of jurisdiction of the Court but is one, which a party may
waive. If a party doesnot raise the plea when he/she ought to have done so, it will be deemed to
have been directly and substantially in issue and will be deemed to have been heard and finally
decided against him/her or the party will be taken to have waived it. However,a party cannot be
considered to have given up a plea of res judicata where all the facts and papers necessary for
ascertaining the point where before court and the parties had admitted the fact of the previous
suit.
A mere opinion of the court on a matter not necessary for the decision of the case and not arising
out of the issues before it is an obiter dictum and cannot be said to be a decision on any issue, and
is therefore not res judicata.
The court before which the plea is raised is not deprived of jurisdiction to hear the case;the court
only declines to exercise its jurisdiction to allow the parties relitigate a matter when it is satisfied
the same parties are suing in the same capacity and that the same issue before it is the same as
that alleged to have been the subject of adjudication in previous proceedings. 286
The court has set out the following as the test for determining whether a case is barred by the
principle of res judicata287.
In determining whether or not a suit is barred by res judicata,the test is whether the
plaintiff in the second suit istrying to bring before the court in another way in the form of
a new cause of action,a transaction which has already been presented before a court of
competent jurisdiction in ealier proceedings which have been adjudicated upon.
Final Judgements.

283

Ibid
Obura vs Koome [2001] EA 177
285
Farook Aziz (Administrator of Estate of Salima Kabasingo vs Abdalla Abdu Maruku SCCA No. 4 of
2002
286
Mandavia vs Singh [1965] EA 118 at 121
287
Ponsiyano Semakula vs Susan Magala & Others [1979] HCB 89 qouted with approval in case of John
Kafeero Sentongo vs Shell (U) Ltd & Uganda Petroleum Co.Ltd C.A.C.App No.50 of 2003
284

67

Final judgements, which will give rise to the application of the doctrine of res judicata, are
divided in two classes, namely judgements in rem and judgements in personam.
A judgement in rem may be defined as the judgement of court of competent jurisdiction
determing the status of a person or thing, or disposition of a thing, as distinct from the particular
interest in it of a party to litigation.
A judgement in personam or inter partes are those which determine the rights of parties as
between one another to in the subject matter in dispute, whether it be corporeal property of any
kind whatever or a liquidated or unliquidated demand, but which donot affect the status of either
persons or things or make disposition of property or declare or determine any interest in it except
as between the parties litigant. They include all judgements, which are not judgements in rem.
Judgements by consent or default.
A judgement which would be final if it resulted from judicial decision after a contest is not
prevented from being so by the fact that it was obtained by consent or default, or as the result of
admissions, provided the party against whom it is set up was under no disability.
In considering whether an ex parte decree is res judicata in a subsequent suit and too what extent,
it is necessary to ascertain precisely what matters were involved in such decision. An issue can be
said to be directly and substantially in issue in an exparte case, only constructively. All grounds of
attack in respect of the actual claim made and all matters inconsistent with the plaintiffs claim
which might or ought to have been raised by the defendant, will be deemed to be directly and
substantially in issue in the suit and to have been heard and finally decided. An ex parte decree
will therefore operate as res judicata on all such points.
In order to maintain a plea of res judicata, that person whose interest it is sought to be bound or
his/her predecessor-in-title should have been properly represented in the former litigation.When a
decree is obtained against a minor who was not represented at all,or, what is the same thing in
effect, represented by a person incompetent to act as guardian or next friend, the minor is no party
to the suit and as such the decree without jurisdiction and not binding on him/her as res
judicata.Even where the minor was represented by a person competent to act,the decision will not
operate as res judicata against him/her if his /her interests were not properly represented owing to
gross negligence or fraud or collusion of the guardian or next friend.
Judgement obtained by Fraud
A decree obtained by fraud or collusion is a nullity and cannot operate as a bar to a fresh suit
between the parties with respect to the same subject-matter: the reason is that fraud is an extrinsic
collateral act which vitiates the most solemn proceedings of courts of justice.
There can, also be no question of res judicata in a case where a party seeks to set aside a decree
on the ground of fraud or collusion and so a suit will lie to set aside a decree on the ground that it
is tainted by fraud and collusion.
Where a decree is sought to be set aside on the ground of fraud, the fraud alleged must be actual,
postive fraud, a meditated and intentional contrivance to keep parties and the Court in ignorance
of the real facts of the case and the obtaining of that decree by that contrivance.

68

However when the parties have had the opportunity of putting their respective cases before the
Court and the Court has come to to a conclusion on the evidence, the rule of res judicata comes
into operation and it is not open to the defeated party to re-open the matter by merely alleging
that the evidence and the averments which the court believed were untrue.
Decision on Preliminary or Technical points
When the prior suit has been dismissed on some technical ground without going into the merits of
the questions raised,there can be no decision on such questions and therefore no res judicata288.
Similary,dismissal of a suit for default under the provisions of O.9 cannot operate as res
judicata.But the dismissal of a claim under O.17 r 4 on account of a partys default in producing
evidence to sustantiate his/her case has the same effect as a dismissal founded upon evidence and
the subject-matter of such a claim will be res judicata.
The dismissal of a suit on default of plaintiff to furnish security for costs or to pay fees as ordered
by Court doesnot bar a second suit on the same cause of action.
Interlocutory Orders
Interlocutory applications in a suit cannot themselves be regarded as suits for the purposes of S.7
and orders thereon cannot,at a subsequent stage of the same suit,be regarded as decisions in
former suit. However, the doctrine of res judicata applies to both suits and applications ,whether
they be final or interlocutory.289Where there are two applications which are brought under
different provisions and one of them is not disposed of on merit, res judicata doesnot come into
play.290
An order on an interlocutory application at one stage of the case is therefore binding in all
subsequent stages of the same proceeding under general principles of law unless the application is
dismissed291 or the order leaves the matter for re-consideration at a later stage or order is really
not an adjudication but a mere expression of opinion not necessary for the disposal of the
application.
Exexution Proceedings
Section 7 does not in terms apply to execution proceedings in a suit in as much as each of such
proceedings is not a separate suit,but is only a proceeding in the same suit.
All questions arising between the parties to the suit in which the decree was passed,or their
representatives,and relating to the execution,discharge or satisfaction of the decree,shall be
determined by the the court executing the decree and not by a separate suit. 292
When, therefore,a matter,which directly and substantially arises for the decision in an execution
proceeding,is heard and decided either actually or constructively by a competent Court in that
proceeding,such decision is final between the parties and operates as res judicata in a subsequent
suit or in subsequent execution proceedings or at a subsequent stage of the same execution
proceedings.
288

Isaac Busulwa vs Ibrahim Kakinda [1979] HCB 179

Kanorero River Form Ltd & 3 Others vs National Bank of Kenya Limited HCCS No.699 of 2001
290
Lt.David Kabareebe vs Maj.Prossy Nalweyiso C.A.CA No.34 of 2003
291
Norah Nakiridde Namwandu vs Hotel International Ltd [1987] HCB 85
292
S.34 Civil Procedure Act Kabwengure vs Kanjabi [1977] HCB 89
289

69

Res judicata is also applicable to execution proceedings in the sense that where a judgement
debtor fails to raise all his/her objections to the application in execution made by the decreeholder,which he/she might and ought to have raised,and the application is allowed,all objections
would be deemed to have been impliedly decided against him/her.
An auction-purchase in execution of a money decree purchases only the right,title and interest of
the judgement debtor and therefore claims under him/her and will, therefore,be bound by a
previous decision against him/her in respect of such property.
Whether Compesation in Criminal case is res judicata in a civil suit.
A criminal court may order compensation for material loss or person injury. 293This is not a bar to
a subsequent civil action for damages and the priciple 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 the criminal law
and civil law in motion to recover damages. 294

CHAPTER SIX
CONSOLIDATION OF ACTIONS/SUITS AND TEST SUITS
Introduction
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)
(b)
(c)

a common question of law, or fact arises in the actions;

the rights to relief arise in respect of the same transaction or series of transactions;
it is otherwise desirable to approve the consolidation. 295

293

S. 197 Magistrates Courts Act & S.126 Trial on Indictments Act

Esso Standard (U) Ltd vs Mike Nabudere HCCS No.594 of 1990 [1992] KALR VI 40
295
O.11 r 1 Yowana Akirod vs. Filipo Malinga [1992-93] HCB 91. However the order does not require
that different causes of action arising out of the same transaction be included in one suit.
294

70

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, or have one stayed until the
determination of the other296; or be tried on such other terms as it thinks just. On many occasions
there have been instances when family matters are filed for failure to account by an Administrator
and also a land matter where the administrator has sold off the land fraudulently, in such a
situation two suits may be filed in the different divisions i.e Family and Land division.
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 pleadings and a single
discovery, judgment and bill of costs. 297 However, the order does not require that
different causes of action arising out of the same transaction be included in one suit. 298

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. 299 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 on the first
case governing the others or with any latter case being subsequently heard.

CONSOLIDATION UNDER RULES OF COURT

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.300
A more liberal interpretation is now being taken of the rules of court to prevent multiplicity of
proceedings, the court frequently takes position that in lieu of consolidation it is preferable to
place the actions on the list for trial at the same time so that the judge may determine whether
there should be a joint trial or separate trials or the actions may be partially consolidated to
determine the question of liability with any issue particular to one plaintiff, including damages to
be separately dealt with.301
296

S.6 Civil Procedure Act Kawooya vs TUMPECO [1974] HCB 68, Amos Mugisha and others vs
DAPCB [1990] KALR 38
297
O.11 r 1 Yowana Akirod vs. Filipo Malinga [1992-93] HCB 91
298
Jadra Karsan vs. Harman Singh Bhogal (1953) 20 EACA 74
299
Topista Kyebitama vs. Damyano Batuma [1976] HCB 276
It is well 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 purpose of determining liability or only one of
them, first in point of time be heard first.
300
Stumberg & Another vs. Potgieter [1970] EA 323 Consolidation of suits should be ordered where there
are common questions of law or fact; consolidation of suits should not be ordered where there are deep
differences between the claims and defences in each action.
301
Topista Kyebitama vs. Damyano Batuma (Supra n) Healy vs. Waddington & Sons Ltd. [1954] 1
ALL.ER 861

71

The granting of orders for consolidation

The granting of an order for consolidation is generally within the discretion of the court. The
recent rules of court generally provide the same grounds for permitting consolidation as are
applied to the joinder of parties namely:1.
2.
3.
4.
5.
6.

Common questions of fact or law;

Rights to relief arising out of the same or similar transactions; of
Whether consolidation is proper;
In cross actions between the same parties arising out of same matter;
Same causes of action;
Consolidation will save expense.

Refusal of consolidation
1.

When prejudicial to plaintiff

Where the rights and position of a plaintiff should be prejudiced by consolidation of his
action with another against the plaintiffs will.

2.

Impossible to save expense

When it is impossible to save expense or avoid multiplicity of pleadings and proceedings
consolidation is refused especially where different advocates are involved.

3.

A Party plaintiff and defendant

Where a person is a plaintiff in one case and the defendant in another, and the
consolidation will result in the plaintiff becoming the defendant in the consolidation
action whereby he will lose his advantages as a plaintiff, so instead of consolidating the
action the court should set the case down for hearing, one following the other in the order
the summons were issued.

4.

Different Law applicable

Where the same law does not apply such as in a truck collision involving actions by the
two drivers.

5.

Different standard of proof

Where a plaintiff in one action has to meet different standard of proof from the plaintiff
in the other action i.e. in fraud cases.

6.

When New Pleadings required

Where in cross-action between different parties, the consolidation would necessitate fresh
pleadings throughout and multiply the interlocutory steps, consolidation is refused.

7.

Parties represented by different advocates

72

Where the plaintiffs in each action are represented by different counsels for consolidated
action and problems would arise in a consolidated action from the preparation of
common pleadings and the preparation for the conduct of the common trial. However,
consolidation could be ordered of actions where the defendants are represented by
advocates, for separate defences may be filed.
8.

Relevant matters arising subsequent to commencement

Where relevant matters in one action arose subsequent to the commencement of another
action and the actions proceeded to a considerable extent, consolidation is refused.

9.

Where actions set down for trial

Where the actions are set down for trial, consolidation should be refused because of
multiplicity of pleadings cannot be avoided nor can the expenses be saved.

10.

When different issues involved

Where different issues are involved, such as an action for divorce and another for
alimony consolidation should not be allowed.

Partial consolidation
The court may make a partial consolidation; such as where there are several actions by different
plaintiffs each with a claim for personal injuries, the actions may be consolidated on the issue of
action or on the issue of liability by which all parties agree to be bound.
CONSOLIDATION BY SAME PLAINTIFF AGAINST SAME DEFENDANT
In actions by the same plaintiff against the same defendant which are vexatious and might
properly be combined, the court may order their consolidation by staying proceedings in one and
requiring the plaintiff to include the whole of the claims in the other with costs being frequently
ordered against the plaintiff, such as an action by the plaintiff against a defendant for failure to
deliver certain shares according to contract and a second action by the plaintiff for dishonour of a
bill of exchange given by the defendant in lieu of non delivery 302or in an action by a plaintiff for
return of moneys advanced, and a second action by the same defendant for specific performance
of the agreement.
Where a claim contained in a counter claim is set up in a second action, the court has inherent
power to prevent undue abuse of the court process and will stay the second action until the
counter claim is disposed of.
Actions by same plaintiff against different defendants
Generally, actions by the same plaintiff against different defendants in actions where the same
issues are involved are stayed until one action has been determined, usually with an
understanding that the various defendants have agreed to be bound by the decision in the action,
which is tried.

302

Martin vs. Martin & Co. [1897] 1 QB 429

73

Where the actions against different defendants may be reduced to classes with each class raising a
different question the court may allow one action in each class to be tried with others being
stayed.
Actions by several plaintiffs against the same defendant
Actions by several plaintiffs against the same defendant arising out of the circumstances and
seeking the same relief have been ordered to be consolidated such as separate actions by two
passengers in a motor vehicle accident.
When the plaint in each action has been delivered and separate advocates represent the plaintiffs,
consolidation should be ordered frequently such actions are tried one after the other rather than by
consolidation.
Trial heard together
The courts, instead of consolidating actions may order the trials of separate actions to be heard by
the same judge at the same time but following each other, such as where the damages are related
in the actions but arising out of different causes of actions or where separate advocates in each
action are involved for the right or a litigant to choose his own advocate should be lightly
interfered with but the same law is not applicable or where an application for consolidation was
made too late to effect any real saving of expense or where different places of trial are named in
different actions arising out of the same motor vehicle accident and the balance of convenience
indicated that the places of trial should be consolidated with trials of the actions following each
other.
Place of trial of consolidation suit
The place of trial of a consolidated action should be likewise determined on the application for
consolidation. The plaintiff who commenced the first action before consolidation has the prima
facie right to name the place of trial and where the actions are commenced on the same day, then
the time of delivery of the respective plaint becomes a decisive factor.
Conduct of consolidated action
When actions are consolidated the order for consolidation should contain all the necessary
directions for its future conduct including the designation of the party who is to have conduct of
the consolidated action.
The main indicia to determine who will have carriage of the consolidated action are:(1)
Which action was started first?
(2)

Upon whom does the chief burden of proof lie?

(3)

Which action is the more comprehensive in scope?

As a general rule, the conduct of consolidated action is given to the plaintiff who commenced the
first action, but may be given to the most interested plaintiff and out of whose pocket the costs of
the consolidated action must come or on whom the chief burden of proof lies.

74

Where after consolidation, the value exceeds the jurisdiction of the court, such court should not
proceed with the trial after consolidation.303
TEST ACTIONS/SUITS
Where two or more persons have sued or been sued separately as under order one and could have
been joined in one suit, upon the 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 the other suits until the selected suit shall have been
determined or shall have failed to be a real trial of the issues. 304
By 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.305
Where the trial of the test action did not involve the merits of the case or where there was not a
fair trial of the issues, the court may substitute another action as the test action. A judgment in
test action will not precede an appeal in the other actions unless there is an agreement that the test
action decision is to be final.

CHAPTER SEVEN
PLEADINGS
NATURE AND FUNCTIONS OF PLEADINGS
Pleadings
Definition
Pleadings are written statements of parties served by each party in turn upon the other which must
set out in summary form the material facts on which the party relies in support of his claim or
defence as the case may be.
Documents within the definition of a pleading include306
(1)
(2)

The plaint
Written statement of defence

303

Kivamukuteesa Consumers vs. Ssebugwawo [1986] HCB 61 at 62

O.39 r 1 and 2 Benon Turyamureba and 132 others vs. Attorney General Kabarole District HCCS No.
of 1992 (unreported)
305
Amos vs. Chardwick (1879) 9 CHD 459
306
S.2 of Civil Procedure Act (Interpretation)
304

75

(3)
(4)
(5)
(6)
(7)
(8)
(9)

Counterclaim
Reply to Defence and defence to counterclaim
Petition
Originating summons
Notice of Motion
Chamber summons
Answer to Petition

Framing issues
Pleadings, which are properly drafted, should disclose clearly and precisely the real issues which
are in dispute between the parties, as opposed to a recitation of the evidence, which each party
intends to adduce at trial. They are not mere narratives or provisional documents.
The parties are bound by what they say in their pleadings which have the potential of forming
part of the record and moreover, the court itself is also bound by what the parties have stated in
their pleadings as to the facts relied on by them. 307
The parties are at liberty to join in one pleading various claims or various defences. The
pleadings in an action may raise several issues either of fact or of law or may raise issues both of
fact and law and of mixed law and fact.
OBJECT OF PLEADINGS
A summary object of pleadings:(a) To inform each party what is the case of the opposite party that he/she will meet before and at
the trial.
(b) Concurrently to appraise the court what the issues are. The identity of the issues is crucial,
not only for the purposes of trial but also for the purposes of all the pre-trial interlocutory
proceedings.
The object of pleadings in detail:
(a) To define with clarity and precision the issues or questions which are in dispute between the
parties and are to be determined by court. This was clearly spelt out by Lord Jessel MR. 308
The whole object of pleading is to bring the parties to an issue, and the meaning of the rules
was to prevent the issue being enlarged, which would prevent either party from knowing
when the cause of action came for trial, what the real point to be discussed and decided was
in fact, the whole meaning of the system is to narrow the parties to definite issues and
thereby to diminish expense and delay, especially as regards the amount of testimony
required on either side at the hearing.
(b) To require each party to give fair and proper notice to his opponent of the case he has to meet
to enable him to frame and prepare his own case for trial. The pleadings must contain fair
307

Jani Properties Ltd. vs. Dar es Salaam City Council [1966] EA 281 Struggle (U) Ltd. vs. Pan African
Insurance Co. Ltd. [1990] KALR 46-47
308
Thorp vs. Holdsworth [1876] 3 CHD 647 at 639Interfreight Forwarders (u) Ltd vs East African
Development Bank [1994-95] HCB 54(SC)

76

and proper notice of the issues intended to be raised. This is essential to prevent the other
party from being taken by surprise.309
Again in Esso Petroleum Co. Ltd. vs Southport Corporation,310Lord Normand said, The
function of pleadings is to give 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
The above object has been reiterated by courts in Uganda and a similar or same position has
been upheld in our courts.311
(c) To inform the court what are the precise matters in issue between the parties which alone the
court may determine, since they set the limits of the action which may not be extended
without due amendment being properly made.312
Pleadings are not to be considered as constituting a game of skill between the advocates.
They ought to be so framed as not only to assist the party in the statement of his case but also
the court in its investigation of the truth between the litigants. In similar vein Scrutton L.J.
said313
Cases must be placed on the record; and if it is desired to raise other issues they must
be placed on the record by amendment. In the present case the issue on which the judge
decided was raised by himself without amending the pleadings, and in my opinion he was
not entitled to take such a course.
(d) To provide a brief summary of the case of each party, which is readily available for reference,
and from which nature of the claim and defence may be easily apprehended, and to constitute
a permanent record of the issues and questions raised in the action and decided therein so as
to prevent future litigation upon matters already adjudicated upon between the litigants or
those privy to them.
(e) Pleadings uphold the right to fair trial. This is a principle of natural justice and is enshrined
in the Constitution.314
FORMAL REQUIREMENTS OF PLEADINGS
There are however, several formal requirements with which pleadings must conform.
They constitute the framework in which the parties must construct their pleadings and so enable
them to state with greater precision and clarity the substantive context of their respective cases.
They impart to the whole range of pleadings a consistency and uniformity, which enhance their
effect and their significance. Pleadings, which comply with the formal requirements, become
309

Palmer vs. Guadagni [1906] 2 CH 494 at 497see also Bitarabeho Christine vs Dr.Edward Kakonge
CACA No.4 of 1999 [1997] HCB 55
310
[1956] AC 218 at 238
311
Reiding vs. Skyline Advertising (U) Ltd. [1971] HCB 166, Bisuti vs. Basoga D.A. [1971] ULR 179
312
Kasule vs Makerere University [1975] HCB 376 Standard Chartered Bank (U) Ltd vs Grand Hotel Ltd
CACA No.13 of 1999
313
Blay vs. Polland and Morris [1930] 1 KB 628 at 634 also Qualcast (Wolver Hampton) Ltd. vs.
Haynes [1959] AC 743
314
Articles 28 of Constitution

77

immediately recognizable as such and cannot be mistaken for or confused with any other
documents produced in the litigation process.
Non compliance
Any non-compliance with these formal requirements does not render the pleadings a nullity, but
an irregularity, which may be amended or waived.315
These requirements however should be observed with great care, so that the pleading should be
drawn in such a manner as not to prejudice, embarrass or delay the fair trial action. Court can
strike out proceedings, which it deems unnecessary or scandalous which would prejudice or
embarrass a fair trial of the suit.316
Heading and Title
The year, the court and location of court and the description of the pleading i.e. plaint or written
statement of defence or any other pleading.
Title
Every pleading must bear on its face the title of the action. This consists of the names of each
plaintiff and of each defendant or applicant and respondent.
(a)

The forenames and the surnames of every defendant should be stated in full and correctly
on summons and every pleading. In any case where doubt might otherwise arise as to the
sex, the description of a party, appropriate description must be added in the title.

(b)

In case of a limited liability company the full name of the company should be accurately
stated.

(c)

In case of a corporation, the full corporate name should be used, and statutory
corporations must receive their full statutory title.

(d)

In case of a firm, the firm name should be stated in full adding trading as a firm.

(e)

If either party is an infant, this fact should appear in the title with the addition that he sues
by his next friend or sued by a guardian ad litem.

(f)

If either party is a mental patient, it is undesirable to state this fact in the title; but it is
necessary to state that he sues or is sued by his next fiend or guardian ad litem as the case
may be.

(g)

If a party sues or is sued by a representative or other special capacity e.g. as an executor

or administrator of the estate of a deceased person or as the trustee of a bankrupt, this fact
should be stated in the title.

(h)

If a party sues or is sued in a dual capacity, as may sometimes be the case, the fact that he
sues or is sued in both capacities should be stated in the title.

315
316

Sabayaga Farmers vs. Mwita [1969] EA 38

Epaineto Mubiru vs. U.C.B [1971] HCB 226

78

Describing the parties

Where there are multiple plaintiffs or defendants, the better practice, which is simple, helpful and
clear is to list all the plaintiffs and all the defendants in the title with appropriate numeral in
brackets before or after the name of each. When all the names of all the plaintiffs have been set
out, and not before, there should appear the single word plaintiffs or defendants or
applicants or respondents or appellants.
Description of pleading
Below its heading and the title, every pleading must bear on its face. Its own description by the
words Plaint, Written statement of defence, Counterclaim, Reply etc. If the defendant raises a
counterclaim against the plaintiff, he must add his counterclaim to his defence and the description
of the pleading will then be Written Statement of Defence and Counterclaim. Though the body
of the pleading should be divided into two sections the first described as Counterclaim. In such
a case, the plaintiff must in his reply add his defence to the counterclaim and the description of
the pleading will then be reply and defence to counterclaim.
PARAGRAPHS, FIGURES AND SIGNATURES
Paragraphs of Pleadings
The pleadings shall, when necessary, be divided into paragraphs, numbered consecutively; and
dates, sums and numbers shall be expressed in figures. 317
This requirement is designed to ensure, so far as possible that the allegation in every pleading is
stated with clarity and precision and that long narratives are avoided. It is the hallmark of a good
pleading that each allegation is stated in a separate paragraph. It is equally desirable that each
head of relief or remedy claimed should be stated in separate paragraphs of the prayer of the
plaint or any other pleading.
Figures in Pleadings
In every pleading, dates, sums and other numbers must be expressed in figures. 318 This
requirement is designed to simplify the ready assimilation of dates, sums and other numbers in
pleadings.319
Signature of pleadings
Every pleading must be signed by counsel, if it has been drawn by him, if not it must be signed
by the party if he is acting in person. The signature should appear at the end of the pleading. 320
The advocate representing a party or the party, if they are appearing in person must sign the
pleading. In case of a corporation, the signatory should state his name and the capacity in which
he signs. However, failure to state who signed the 1 st petitioners petition and the capacity in
which he signed is a matter of technicality which is not fatal in view of Article 126(2)(e) of the
317

O.6 r 1(2)
O.6 r 1(2)
319
Love vs. Pharaoh [1954] 1 ALLER 120
320
O.6 r 26 Kirpal Singh & Sons Ltd. vs. Mamba Point Ltd. H.C.C.S. No. 1167 of 1998 Unsigned plaint
struck out (decided 24-05-2000) (unreported)
318

79

constitution which enjoins courts to administer substantive justice without undue regard to
technicalities.321
The signature of counsel reflects his responsibility for the formulation of the case of a party,
which requires the exercise of greater care, skill and art to present with clarity precision and
effectiveness.
Whenever a Written Statement of Defence is filed it must be counter signed by the Registrar.
There must be provision for the courts endorsement i.e Registrar or Magistrates signature. 322
(This is only a recent practice or development, which is not supported by law at the moment).
Date and endorsement
Every pleading must bear at the end a date and place in which the pleadings are drafted. They
should be endorsed with the name of the firm and business address of the advocate by whom they
drafted and filed and also served them.
If the litigant is acting in person the pleading must bear his/her name and address.
PRINCIPLE RULES OF PLEADINGS
System of fact pleading
The principle rules of pleadings, with particular reference to civil procedure rules enshrine the
over riding principle that the system of pleading is a system of fact pleading. This appears clearer
and more emphatically when the terms of the rule are analysed and it is broken down its
constituent elements. Such analysis, throws into relief the basic principles of the system of
pleadings.
The principle rules of pleadings are encapsulated in O.6 r 1 which provides:
Every pleading shall contain a brief statement of the material facts on which the party
pleading relies for claim or defence, as the case may be."323
Every pleading to be accompanied by summary of evidence, list of witnesses, list of documents
and list of authorities324. This rule has been interpreted as forming part of the pleadings. 325 The
new amendment was meant to address the problem of the known pleadings, which may involve
witnesses, documents and not other pleadings do not require documents like Notice of Motion, 326
chamber summons.

321

Uganda Law Society &Anor vs Attorney.General Constitutional Petition No. 8 of 2000

Kaigana vs Dabo [1986] HCB 59,A.L vs Khatoon Cassam [1960] EA 507,Kaur vs City Auto Mart
[1967] EA 107
323
O.6 r 1(1)
324
O.6 r 2 Kizito Conrad vs National Medical Stores Civil Suit No. 819 of 1998 (unreported). This
amendment requires the parties to annex to their pleadings a summary of evidence list of documents, list of
witnesses and authorities to be relied on is mandatory and cannot be waived.
325
Rtd Col.Kizza Besigye vs Yoweri Museveni Kaguta & Electoral Commission Supreme Court
Presidential Election No.1 of 2006 ( Justice Tsekooko).
326
Sule Pharmacy Ltd. vs. The Registered Trustees of the Khoja Shia Hana ShariJamat HCCS No.30 of
1999 HC Misc. Appl. No. 147 of 1999 (unreported)
322

80

The role of this rule

This rule is of fundamental importance to the whole system of pleading.
(a)

It lays down the guiding principles governing the entire system.

It is effected in its original form, a radical change from the former system by requiring
material facts only to be pleaded. Pleadings are now to be merely concise statements of
facts which the party pleading deems material to his case.

Constituent Elements of Order 6 r 1

This order is particularly succinct and needs to be analyzed to reveal that it contains several
strands, each of which is a principle rule of pleading in itself;
(a)

Every pleading must state material facts only;

(b)

Every pleading must state all material facts;

(c)

Every pleading must state the material facts, but not the evidence to prove those facts;

(d)

Every pleading must state the material facts and not law; and

(e)

Every pleading must state the material facts in a summary form.

Pleading material facts only

In great majority of cases, the matters in controversy between the parties are matters of fact, and
the function of the system of pleading is to ascertain what are the facts that are in controversy
between them. 327
Even when the matter in controversy between the parties is a question of law; still the facts have
to be ascertained, whether by determination, admission or agreement. In all cases, therefore, it is
the factual situation which lies at the basis of every claim or defence.
Fact and material
The pleader must plead facts and such facts must be material. The requirement that the pleader
must state facts means not only that he must not plead arguments, reasons, theories or
conclusions. The facts pleaded should be pleaded with precision and certainty and must not be
left to be inferred from vague or ambiguous expression or from statements of circumstances
consistent with a different conclusion.
If material details are omitted, particulars of the facts relied on may be requested or ordered. 328

327
328

Sullivan vs. Ali Mohmed Osman [1959] EA 239

O.6 r 4 Kashibai vs. Sempagama [1967] EA 16

81

What facts are material?

The facts must be material i.e. relevant to the claim or defence. Any fact, which the party is
entitled to prove at the trial, is relevant and therefore material to be pleaded 329even though it may
relate only to the quantum of damages or the type of relief claimed.
Pleading All material facts
Each party must plead all material facts on which he relies for his claim or defence, as the case
may be. In other words, he must prove to establish a legally complete or viable cause of action or
ground of defence and no averment must be omitted which is essential to success. All those facts
must be pleaded which must, not may, amount to a cause of action.
Cotton L. J. Said330
The statement of claim, of necessity must set out all the facts material to prevent the
defendant being taken by surprise, because it is the first pleading, and that which ought
to be referred to for the purpose of seeing whether there is a cause of action. In my
opinion, it is absolutely essential that the pleading not to be embarrassing to the
defendants, should state those facts which will put the defendants on their guard and tell
them what they have to meet when the case comes for trial.
Moreover, a party will not be entitled to give any evidence at the trial of any relevant facts, which
he has not pleaded.331 Thus where the evidence at the trial establishes different facts from those
pleaded by the plaintiff, action will be dismissed. If the plaintiffs cause of action or his title to
sue depends on statute, he must plead all facts necessary to bring him within that statute. 332
Pleading material facts not evidence
Every pleading must contain only a statement of material facts on which the party pleading relies
and not the evidence by which they are to be proved. The function of evidence is to prove or
disprove the facts in issues as between the parties and not to identify what those issues are. Thus
a paragraph therefore, which amounts to pleading evidence ought to be struck out.
It is an elementary rule in pleadings that, when a state of facts is relied on, it is enough to allege it
simply, without setting out the subordinate facts which are a means of producing it or the
evidence sustaining the allegation. 333 All facts which tend to prove the fact in issue will be
relevant at the trial but they are not material facts for pleading purposes.
Pleading material facts, not Law

329

Macharia vs. Wanyoinke [1972] EA 264, A pleading does not contain material facts required if it only
refers to them. Trower & Sons Ltd. vs. Ripstein [1944] AC 254
330
Phillips vs. Phillips [1878] 4 QB 127 at 133
331
Jani Properties Ltd. vs. Dar es Salaam City Council [1966] EA 281 Struggle (U) Ltd. vs. Pan African
Insurance Co. Ltd. [1990] KALR 46 Interfreight Forwarders (U) Ltd. vs. EADB SCCA No.33/1993
(unreported)
332
New Era Stores vs. Ocean Trading Co. [1950] 25 (1) KLR 53
333
Stewart vs. Gladstone (1879) 10 CHD 626 at 664

82

If the material facts are alleged, it is not necessary to plead the legal result if for convenience this
is pleaded; the party is not bound by or limited to the legal results he has alleged. He may rely on
any legal consequence, which may properly flow from the material facts pleaded.
Lord Denning L. J. as he then was said,334
I have always understood in modern times that it is sufficient for a pleader to plead the
material facts. He need not plead the legal consequences, which flow from them. Even
though he has stated, the legal consequences inaccurately or incompletely, that does not
shut him out from arguing points of law which arise on the facts pleaded.
Pleading material facts in summary form
The material facts must be stated in a summary form and the pleadings should be as brief as the
nature of the case will admit.
The material facts should accordingly be stated;
(a) Briefly,
(b) Succinctly,
(c) In strict chronological order
Thus, so far as possible;
(a) Unnecessary allegations or details should not be pleaded, e.g. citation from public statutes or
propositions of law; or the precise words of documents or conversations, unless they are
material.In case of a plaint or pleadings against government in civil,they should contain
information as to circumstances in which it is alleged that the liability of the government has
arisen and as to the government departments and officers of the Government concerned. 335
(b) A party should not plead to:
(i) any matter of law set out in his opponents pleading or to any matter of fact which is not
alleged against him, nor
(iii)
to any particulars of pleadings, nor
(iv)to any prayer of the plaint or counterclaim; nor
(v) to any claim for damages for the sake of clarity it is common practice to deal with these
matters in pleadings.
SUBSIDIARY RULES OF PLEADING
Alternative and inconsistent allegations
Either party may in a proper case include in his pleading alternative and inconsistent allegations
of material facts, as long as he does so separately and distinctly. He may claim relief thereunder
334

Karsales (Harrow) Ltd. vs. Wallis [1956] 2 ALLER 866

Rule 9 of The Government Proceedings (Civil Procedure) Rules, For principles of vicarious liability see
also Jovelyn Byaruhanga vs Attorney General S.C.C.A No. 28 of 1993,Muwonge vs Attorney General
[1967] EA 17 Namwandu vs Attorney General [1972] EA 108
335

83

in the alternative and he may rely upon several different rights alternatively, although they may be
inconsistent.
Pleading techniques
Whenever alternative cases are alleged the facts relating to such cases should be stated separately,
so as to show on what specific facts each alternative heads relief is claimed. 336 So a defendant
may:
(a) Raise by his statement of defence without leave, as many distinct and separate and therefore
inconsistent, defences as he may think proper.
(b) Rely upon several distinct grounds of defence, set off or counterclaim founded upon separate
and distinct facts.
Separate and distinct facts
A defence is not embarrassing, merely because it contains inconsistent grounds of defence,
provided they are not fictitious. On the other hand, different plaintiffs cannot claim inconsistent
alternative relief and a party must in a subsequent pleading make an allegation of fact, or raise
any new ground or claim inconsistent with a previous pleading.
Condition of Mind
A material fact where a party pleading alleges any condition of the mind of any person, be it
any disorder, mental disability or malice, fraudulent intention or other condition of mind he must
expressly allege such condition of mind as a fact 337and he must state the particulars of the facts on
which he relies.338
Necessary particulars
Particulars of the facts relied on to support such condition of mind must be pleaded or they will
be ordered.339 Court would order further and better particulars if it is necessary to remedy a
defect on the pleadings of a party. However, further and better particulars cannot be ordered if
their purpose is to obtain details of the partys case. 340
The function of particulars is;341
336

Davy vs. Garret (1878) 7 CHD 473 at 489

O.6 r 13 Hasham Suleman vs. Sayani [1963] EA 603 Mangat vs. Sharma [1968] EA 620
J. Okello vs. U.N.E.B SCCA No. 12 of 1987 Fam International Ltd. vs. Muhamed Hamid El Fathih SCCA
No. 16/1993, Katarakwire vs. Lwanga [1988-90] HCB 86 87 Plaintiffs case on negligence must
specifically set out the particulars of the alleged negligence.
338
O.6 r 2 Lubega vs. Barclays Bank Civil Appeal 2/92 unreported. Particulars of fraud must be pleaded
as a legal requirement, failure to do so is not merely curable by adducing evidence. Tororo Cement
Company Ltd. vs. Frokina International Ltd. Court of Appeal C.A. No. 21 of 2000. It is not always
necessary to tabulate particulars. It is a mere want of form not a sufficient ground for rejection of plaint.
David Acar vs. Acar Aliro [1982] HCB 60
339
O.6 r 3 Sule Pharmacy Ltd. vs. The Registered Trustees of the Khoja Shiatana Shari Jamat HCCS
No. .. of 1999, HCMS APP 147 of 1999 (unreported)
340
Epaineto Mubiru vs. UCB [1971] 1 ULR 144
341
Astroulanis Compania Naviera SA vs. Linard [1972] 2 QB 611 at 620. Reiding vs. Skyline
Advertising (U) Ltd. (1971) HCB 166 Bisuti vs. Basoga DA [1971] 1 ULR 179, Speeding vs. Fitz
337

84

(a) to inform the other side of the nature of the case they have to meet, as distinct from the mode
in which that case is to be proved;
(b) to prevent the other side from being taken by surprise in the trial;
(c) to enable the other side to know what evidence they ought to be preparing and to prepare for
trial;
(d) to limit the generality of the pleas or of the claim; or the evidence
(e) to limit and define the issues to be tried and as to which discovery is required;
(f) to tie hands of the party so that he cannot, without leave go into any matters not included in
the pleadings.
Condition precedent
A condition precedent is a condition agreed between the parties or imposed by statute, the
fulfillment of which is necessary before a party becomes entitled to sue. 342 Thus:
(a) It is not of the essence of the cause of action, but it has been made essential to it;
(b) It is not a substantive or constituent of a cause of action, but it has been superimposed upon it
as an additional formality which must be fulfilled so as to give rise to the entitlement to sue.
The fulfillment of a condition precedent necessary for the case of a party is to be implied in his
pleadings.343 Thus:
(a) a general averment of the due performance of all conditions precedent need not be alleged.
(b) it is unnecessary for a party to state in his pleadings that a thing has been done or an event has
occurred, being a thing or event the doing of which constitutes such condition precedent.
Distinguishing between conditions precedent and material facts
A material fact, which is the essence of a cause of action, and is not a mere condition precedent,
must be still pleaded thus e.g.
(a) The requirement that notice of dishonour of a bill of exchange was duly given (except to an
acceptor) or was waived or excused is an essential constituent in an action on a bill and such
fact must be pleaded with all necessary particulars.
(b) In an action by the assignee of a debt, legal chose in action; it is an essential requirement that
the assignment was in writing and that notice in writing thereof was duly given to the debtor
and such facts must accordingly be pleaded otherwise the plaintiff would have no title to
sue.
Patrick (1888) 38 CHD 410-414, Esso Petroleum Co. vs. Southport Corporation Supra n , Millibank vs.
Millibank [1900] 1 CH 376 at 385
342
O.6 r 5
343
Hormusji K. Hathadaru vs. Trustees for the Port of Eden Civil Appeal No. 790 of 1963 (unreported)

85

Effects of document or purport of conversation

General rule where any document or conversation referred to in any pleading the precise words
of the document or conversation should not be stated, but only the effect of the document or the
purport of the conversation should be briefly stated344.
Exception
But if the precise words of a document or conversation are themselves material, they must be set
out in full in the pleadings but only in so far as it is necessary to show what the alleged effect is.
Thus;
(a) it is not ordinarily necessary to verbatim the entire terms of a written contract, but only state
briefly the effect thereof and to specify the particular terms in respect of which any breach is
alleged;
(b) it is not ordinarily necessary to set out the precise words used in by the parties when making
an oral contract or taking part in any conversation relied on.
However,
(a) In an action of libel or slander, the plaintiff must set out verbatim in his statement of claim
the very words on which he relies to found his claim. 345
b) It may be necessary to set out the precise words of a clause in a will; which the court will
have to interpret.
Documents Legal effect Pleading
(a) Where the legal effect of the document stated, the pleader takes upon himself/herself to give
the true meaning of the instrument, whatever its terms may be.
(b) Where the document is set out verbatim he leaves the construction of it to the court except
that the meaning is often necessarily assumed in alleging the breach.
Generally therefore, the best course is to state the legal effect of the document especially where
they are lengthy or numerous - However where the meaning is doubtful, it is desirable to raise in
the easiest and most direct form the question of their sufficiency to support the action, it may be
advisable to set them out verbatim.
Knowledge
Materiality The element of knowledge is a special condition of mind for the purpose of
pleading. Where it is material that a person has or had no knowledge of some facts, matter or
thing, the pleader must expressly allege such knowledge or absence of knowledge as a fact. 346
Particulars
344

O.6 r 12
Samuel N. Nkalubo vs. Rev. Daudi Kibirige [1972] 2 ULR 49 [1973] EA 102
346
O.6 r 13
345

86

Particulars of knowledge volunteered should be pleaded or the court may order them to be given.
Such particulars should consist of any specific facts; documents or overt acts relied on to show
knowledge on the part of the person concerned. 347 Ought to know particulars of the facts and
circumstances relied on will be ordered of an allegation that a party ought to know or ought to
have known some fact or thing.348
Grounds for belief, if a party puts forward a positive allegation that he had grounds for belief or
reasonable and probable cause for doing what he did, he may be ordered to give particulars of the
facts and matters he relies on but otherwise such particulars are not ordinarily ordered to be
given.349
Notice
Pleading technique Where it is material that a person had notice of some fact, matter or thing,
the pleader must expressly allege such notice as a fact and particulars of such notice may be
ordered.350
Notice as distinct from knowledge notice and knowledge are no synonymous, and an allegation
that a party had notice is not an allegation of a condition of mind. 351 Although the rule deals with
both knowledge and notice, they are clearly made separate by the particulars which have to be
given to each such allegation. It is these particulars that differentiate the one topic from the other.
Point of Law
Raising, not pleading the distinction
While it is a principal rule of pleading that a party must plead material facts only and not law, yet
every party is permitted by his pleadings to raise a point of law.352
The distinction between pleading law which is not permitted, and raising a point of law which is
permitted, is that by pleading law a party would in effect be pleading conclusions of law, which
could obscure the facts of the case.
On the other hand, raising a point of law a party would help define or identify or isolate an issue
or question of law on the facts pleaded. It is a constitutional principle of great importance that
questions of construction of all legislation are questions of law to be determined authoritatively
by courts of law.
Raising a point of law how?
An objection in a point of law may be pleaded together with any number of traverses and special
pleas.353 Each objection should however:347

Broughton vs. Snook [1939] CH 505

Fox vs. Wood H. Harrow Ltd. [1962] 3 ALLER 1100
349
Stapeley vs. Annets [1969] 3 ALLER 1514
350
Cresta Holdings Ltd. vs. Karlin [1959] 3 ALLER 656
351
O.6 r 13
352
Central Masaka Coffee Co. vs. Masaka Farmers and Producers Ltd. [1991] ULSLR 220 also refer to In
Re: A Reference from High Court of Uganda and In Re Sheik Abdu K Ssentamu &anotherConstitutional
Petition No.7 of 1998
353
O.6 r 28
348

87

(a) be stated in a separate paragraph following those which deal with the facts;
(b) raise a point of substance, not merely a technical objection to some defect of form; 354 and
(c) state succinctly the grounds for the objection.
Any point of law, which requires serious prolonged argument, should ordinarily be raised in
pleading and dealt with if appropriate as a preliminary issue.
Litigation strategy
To raise a substantial point of law on the facts as pleaded is a convenient course, especially where
it may dispose of the whole action. Where the point of law is going to be decisive of the
litigation, it should be raised under this rule. 355 Where a Preliminary point of law is raised, which,
if decided in one way, is going to be decisive of litigation, then the advantage ought to be taken of
facilities by the Civil Procedure Rules to have it disposed of at the close of pleadings 356.
Tactics
(a) An objection in point of law must be taken clearly and explicitly, and the point should be
precisely defined.357
(b) Where all the allegation in the statement of claim are admitted but an objection in a point of
law is raised in the defence, no evidence will be admitted at the trial since there is no issue of
fact on the pleadings.358
(c) If a party does not raise a point of law in his pleadings, he may nevertheless at the trial raise
any point of law open to him.359
(d) The parties are not entitled by their pleadings to raise abstract or hypothetical questions of
law or raise questions of law of hypothetical sets of facts, even if they are agreed between the
parties360and especially if the hypothesis is false or fictitious. 361
Presumptions
The principle362
A party need not allege any matter of fact if:
(a) It is presumed by law to be true; or

354

O.6 r 17
Waters vs. Sunday pictorial Newspaper [1961] 1 WLR 967
356
Re: A Reference from High Court of Uganda and In Re Sheik Abdu K Ssentamu &Anor Constitutional
Petition No.7 of 1998
357
National Real Estate Finance Co. vs. Hassan [1939] 2 KB 61
358
Pioneer Plastic Containers Ltd. vs. Commissioner of Customs and Excise [1967] 1 ALLER 1053
359
Re: A Reference from High Court of Uganda and In Re Sheik Abdu K Ssentamu &Anor Constitutional
Petition No.7 of 1998 Independent Automatic Sales Ltd., vs. Knowles and Foster [1962] 3 ALLER 27
360
Avon County Council vs. Howlett [1983] 1 WLR 805
361
Whall vs. Bulman [1953] 2 QB 198 at 202
362
O.6 r 17
355

88

(b) The burden of disproving it lies on the other party, unless the other party has specifically
denied it in his pleading.
Allegations of Damage
Damage not necessarily a Pre-requisite
In many actions it is necessary to allege that the plaintiff has suffered actual damage.
Damage-a prerequisite where special loss is claimed.
Whenever the plaintiff has suffered any special damage this must be alleged in the statement of
claim with all necessary particulars. The plaintiff will not be allowed at trial to give evidence of
any special damage, which is not claimed explicitly in his plaint. 363
Difference between special and general damages
General damage is such, as the law will presume to be the natural consequence of the defendants
act. It arises by inference of law and may be averred generally. Special damage on the other
hand, is such a loss, as the law will presume to be the consequence of the defendants act but such
as depends in part, at least, on special circumstances of the particular case. It must therefore be
always explicitly claimed on the pleadings, as otherwise the defendant would have no notice that
such items of damage would be claimed from him at trial. 364
Pleading practice in relation to loss and damage
Particulars Where the plaintiff claims that he has suffered damage, e.g. injury, of a kind which
is not the necessary and immediate consequence of the wrongful act complained of, it is his duty
to plead full particulars to show the nature and extent of damage claimed i.e. the amount which
he claims to be recoverable, irrespective of whether they are general or special damages. This
operates fairly to inform the defendant of the case he has to meet and to assist him in computing,
if he so desires; a payment in court.365
Future loss
The plaintiff must plead any special circumstance which he alleges will lead to his sustaining in
the future losses which would not in the ordinary was be expected to follow from the wrongful
act complained of. If the plaintiff is able to base his claim for damages upon a precise or perhaps
particulars of the facts which make such a calculation possible. 366
Liabilities already incurred
An expense, which the plaintiff has reasonably incurred in consequence of the defendants tort or
breach of contract should be, stated as special damage.
363

Hassan vs. Hunt [1964] EA 201

Kyambadde vs. Mpigi District Administration [1983] HCB 44 - Special damages must be strictly
proved but need not be supported by documentary evidence in all cases. J.B. Semukima vs. John Kaddu
[1976] HCB 13,Obwolo vs Barclays Bank [1994] III KALR 101(CS,No.682 of 1995),
365
Shah vs. Muhamed Haji Abdalla [1962] EA 769
366
Eastern Radio Service vs. Patel [1962] EA 818
364

89

It is not necessary that the plaintiff should have actually paid the amount if he is clearly liable to
pay them.
Nexus between conduct complained of and damage
No damages can be recovered for a loss actually sustained unless it be either the direct
consequence of the defendants act or such a consequence as a reasonable man would have
contemplated.367 It must be proved by evidence at the trial that the loss alleged as special damage
was in fact incurred and that it was the direct result of the defendants conduct as neither fact will
be presumed in the plaintiffs favour. All other damage is held to be remote. A mere speculation
of loss is not sufficient though damages may be recovered for a prospective loss which is
reasonably certain to occur.
General and Special Loss Several not Joint
When both general and special damage exist, the plaintiff can recover for both where both are
alleged and if the plaintiff fails to prove the special damages, he can still recover general damage
unless special damage is essential to his cause of action, 368 and failure to plead general damages is
not fatal.369
No general rule can be laid down as to the precise degree of exactness necessary in a claim of
special damages. The character of the acts themselves which produce the damage and the
circumstances under which such acts are done, must regulate the degree of certainty and
particularity with which the damage done ought to be stated and approved. 370
Age Personal injury claims
In personal injury actions, the plaintiffs age is material fact on the issue of damages and should
be pleaded.371
Aggravated damages
In order to ascertain the nature and extent of the injury done to the plaintiff. It is often material to
consider the circumstances under which the wrongful act was committed. Such matters of
aggravation should therefore be pleaded in the plaint. 372 Thus, in an action of trespass for entering
the plaintiffs house, the plaintiff may allege that the defendant did so under a false charge that
the plaintiff had stolen goods.
Exemplary damages
A claim for exemplary damages must be specifically pleaded together with the facts relied on. 373
A claim for exemplary damages is an exceptional award and it may be awarded only in three
categories.374
367

Byekwaso vs. Mohamed [1973] HCB 20

Ratcliffe vs. Evans [1982] 2 QB 524
369
Foods and Beverages vs Opoya [1994] III KALR 82(SCCA No.32 of 1992)
370
Ratcliffe vs Evans [1982] 2 QB 524 at 532
371
Frank Makumbi vs. Kigezi African Bus Company Ltd. [1986] HCB 69
372
Rooks vs. Barnard [1972] AC 17
373
Kasule vs Makerere University [1975] HCB 276
368

90

(1)

Where there has been oppressive, arbitrary or unconstitutional action of servants of

government.

(2)

The cases in which the defendants conduct has been calculated by him to make a profit
for himself which may exceed the compensation payable to the plaintiff.

(3)

A case in which exemplary damages are expressly allowed by statutes.

Nevertheless, it is still necessary to plead a claim for exemplary damages so as to enable the trial
judge to form a view of the flagrancy of the defendants acts and he should give a direction or
indication that such damages should be awarded on inquiry as quantum. 375
Exemplary damages may be given when not specifically pleaded. 376
Continuing damage/loss
As a general rule damages can only be claimed up to the date of summons. But damages under
any continuing cause of action, may be claimed down to the time of their assessment.
Mesne Profits
May be claimed from the date of the defendants entry on the premises until possession be given
up to the plaintiff.
Prayer for relief/remedy
As its conclusion, the plaint must specify the relief or remedy, which the plaintiff claims. This is
what is called a prayer. The rules require that the specific averment of the relief claimed either
simply or in the alternative, 377 although costs need not be specifically pleaded. It is a common
practice for pleadings to have the statement Any such further and other relief as this honourable
court may deem necessary Several authorities have ruled that such a statement is a mere
surplusage and it contravenes O.7 r 7.In the case of Take Me Home Ltd vs Apollo Construction 378
it was held that the prayer any other and further relief in the plaint does not add anything to
what is claimed nor can it be used as an inclusive cover up to avoid penalty for sloppy,
incompetent and inadequate drafting of the pleadings
Thereafter, there should be set out separately and distinctly in numbered or lettered paragraphs
each head of relief or remedy which is claimed.
Absence of prayer
If the plaintiff omits to ask for any relief or remedy claimed in the plaint, he will be deemed to
have abandoned that claim.

374

Ibid. It is not necessary for a claim for exemplary damages to be pleaded. A.G vs. Musisi [1972] EA
217
375
Ongom vs. Attorney General [1979] HCB 267, Rookes vs. Barnard Supra
376
Drane vs. Evangelou [1978] 1 WLR 455
377
O.7 r 1(g), O.7 rr 7,8 Nkambo vs Kibirige [1973] EA 102,Odd Jobs vs Mubia [1970] EA 476
378
[1981] HCB 43

91

Costs
Costs need not be specifically claimed, nor is it strictly necessary to ask for general or other relief
since the court will grant the plaintiff the remedies to which he appears entitled, provided it is not
inconsistent with that relief which he expressly asked for.379
Pleading the prayer in the alternative
The plaintiff may claim his relief or remedy in the alternative. 380 Moreover, there is nothing to
prevent the plaintiff from setting up two or more inconsistent sets of material facts and claiming
relief or remedy there under in the alternative e.g. a claim for money had and received or
alternatively damages for breach of contract, since he is not entitled to rely upon several
different rights alternatively although they may be inconsistent.
Alternative claims and judgment in default
The plaintiff may obtain judgment in default of the defence in alternative which he/she selects,
provided that his/her allegations entitle him/her to such relief or remedy.
Figure 1:

PLAINT
THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
CIVIL SUIT NOOF 2005
SSEMPEREZA REHEMAPLAINTIFF

VERSUS
JUSSY BUS COMPANY LTD.. DEFENDANT

PLAINT
1.

The plaintiff is a female adult Ugandan of sound mind whose address of service for
purposes of this suit shall be C/o M/s S.A.Advocates Plot 38 William Street P.O.Box
70075 Kampala.

2.

The defendant is a Limited Liability duly incorporated in Uganda engaged in the

transport Industry and owner of Coach bus UAB 703G and the plaintiffs advocates
under take to effect court process on them at their office situate at the Bus part in
Kampala.

3.

The plaintiffs claim against the defendant is for special and general damages for
negligent injury through reckless driving by the defendants driver (servant) who caused
an accident in the course of his employment.

The plaintiffs cause of action against the defendant arose as hereunder: 379
380

Harrison-Broadly vs. Smith [1964] 1 ALL ER 867

O.7 r 8

92

a)

On or about 27th.November.2004 at around 15:00hrs along Namirembe road

the plaintiff was knocked by a Jussy Coach bus registration no UAB 703G

b)

The plaintiffs right leg was crashed by the defendant s bus registration UAB
703G

c)

That the motor vehicle (bus) registration No UAB 703 G belonging to the
defendant Company was being driven by its driver.

d)

That the driver of this bus was at the particular time of the accident was
acting in the course of his employment and or on the owners behalf and for
its benefit.

e) That the plaintiff was left unattended to by the bus touts and driver at the time
of the accident until a police officer arrived and assisted her.
f) That the plaintiff was admitted at Mulago on 27 th-11-2004 at Mulago. A
photocopy of the Admission is attached hereto marked AA
g) That the plaintiffs right leg was amputated on 2 nd-December-2004 below the
knee but there was persistent pain.

4.

h)

That the plaintiffs leg was later amputated above the knee in a second
operation. Copies of the Surgery operation are collectively attached hereto
marked MED FORM

i)

That the plaintiff was discharged from Mulago hospital on 23rd-12-04.

j)

That the driver was using the vehicle at the owners request, express or
implied or on its instructions and was doing so in performance of the
owner of carrying passengers.

k)

That the plaintiff holds the defendant vicariously liable for the fortious
actions of its driver/ agent or servant.

l)

That the accident was duly reported to police (Central Police Station) vide
TAR 2101/04. A police medical Examination Report is attached hereto
Acc. REP

m)

That the driver has been charged and convicted and sentenced. Traffic
accident report is attached hereto marked TAR.

The plaintiff shall aver and contend that the defendants driver was negligently driving
motor vehicle Registration No. UAB 703G.
PARTICULAR OF NEGLIGENCE
a)

Driving too fast or at a speed which was beyond the allowed limit in
Kampala.
b) Failing to keep any or any proper look out.
c) Failing to use the side mirrors of the car.
d) Driving dangerously, recklessly and negligently.
e) Failing to brake, to slow down, swerve to avoid knocking a
pedestrian crossing the road.
f) Failing to keep and maintain the said motor vehicle in a proper
mechanical condition.

93

g) Failing to stop while approaching a busy area.

h) Failing to keep a proper or any look out for other road users.
i) Failing to blow the horn or warn other road users
6. IN THE ALTERNATIVE the plaintiff shall invoke and rely upon the doctrine of RES
IPSA LOQUITOR

7. The plaintiff shall aver that as a result of the defendant s drivers negligent and
reckless actions the plaintiff lost her limb and is permanently incapacitated.
8. The plaintiff further contends that her life has been completely incapacitated and
disorganized and her life capacity to perform productive activities is severely
interrupted and completely lost out both financially and economically as a result
of the amputation of her right leg.
9.

The plaintiff shall aver and contend that as a result of the accident she has suffered
special and general damages resulting in economic and financial loss.

PARTICULAR OF SPECIAL DAMAGES

TAR

70,000/=

Hospital bills

4,000,000/=

Transport to Hospital

1,000,000/=

House helper

700,000/= per month

Miscellaneous (food)

2,000,000/=

Loss of income

9,000,000/=
___________
Total
16,770,000/=
____________
Copies of the receipts and other relevant documents are attached hereto marked DEC

10 The plaintiff shall further contend that she has suffered general damages and lost
earnings from her employment.
PARTICULARS OF LOSS
Loss of additional Income

5,000,000/=

Copies of the letter of employment are attached hereto marked IRC

11. The defendant was served with a notice of intention to sue and the cause of action arose
within the jurisdiction of this Honourable court.
WHEREFORE the plaintiff prays for Judgement against defendant for;

94

a)
b)
c)
d)
e)
f)
g)

Special damages of Shs 16,770,000/=

Interest at 27% from the date of cause of action
General damages
Loss of earnings
Aggavated and punitive damages
Costs of the suit.
Any other and further relief which the Honourable Court may deem fit.

DATED at Kampala this day of2005

_______________________________________
M/s S.A. Advocates
(Counsel for the Plaintiff)
Drawn & Filed by
M/s SA.Advocates
Plot 38 William Street
P.O.Box 70075
Kampala

PLEADING IN DEFENCE
The Defendant
Object
The function of the defence is to state the ground and material facts on which the defendant relies
for his/her defence.
The primary object of the defence is:
To inform the plaintiff precisely how much of the statement of claim the defendant admits and
how much he denies.
What grounds and facts the defendant relies on to defeat the claim of the plaintiff.
Pleading requirements
In his defence, the defendant must deal specifically with every material allegation contained in
the statement of claim traversing it or admitting it or admitting it with some stated specified part
of it is bad in law. He must state in a summary form the material facts on which he relies for
his/her defence, but not evidence by which he will seek to prove those facts at the trial. He may
plead any set off or counterclaim which he desires to set up.
Examples of pleadings in defence:
He may deny or refuse to admit the facts, or some of them, stated by the plaintiff.
He may confess or admit them, and avoid their effect by asserting fresh facts which afford an
answer to them.
He may admit the facts stated by the plaintiff and may raise a question of law as to their legal
effect.
95

He may state facts giving rise to a setoff or

He may plead a counterclaim.
Matters which must be specifically pleaded
If the defendant intends to rely upon them, the following matters must be expressly pleaded;
Any matter which he alleges makes the claim of the plaintiff not maintainable as e.g.
performance, release, any relevant statute of limitation, fraud or any fact showing
illegality.
Any matter, when not specifically pleaded, might take the plaintiff by surprise.
Any matter which raises issues of fact not arising out of the plaint.
Pleading in the Alternative
Where the defendant relies on several distinct grounds of defences, setoff or counterclaim,
founded upon separate and distinct facts, they may be stated as far as possible separately and
distinctly.
Any number of defences may be pleaded together in the alternative or otherwise although they
are obviously inconsistent.
The overriding discretion of the court
The ambit of the defendants right to plead is circumscribed by the overriding power of court to
strike out or amend any defence or any part thereof which does not disclose a reasonable defence,
or is scandalous, frivolous or vexatious or may tend to prejudice or embarrass or delay the fair
trial of the action or is otherwise an abuse of court process.
Defences which are not embarrassing.
Inconsistent averments, provided such averments are not fictitious or
Prolix statements or statement which the other party traverses as untrue. However a defence is
embarrassing if a plea leaves the plaintiff in doubt as to what a defendant has admitted
and what he denied.381
Things to consider before drafting the defence
Carefully consider the statement of claim and the way in which the action is framed against the
defendant. It ought to be noted that the defence of want of jurisdiction should be
specifically pleaded.382 But the court may allow an objection to the jurisdiction to be
raised at trial and no objection as to jurisdiction shall be allowed on appeal unless the
objection was taken at the court of first instance. 383
381

Fleming vs. Dollar (1888) 23 QBD 388

O.9 r 3
383
S.16 Civil Procedure Act
382

96

If he thinks no reasonable cause of action is shown at all, 384 or that the only cause of action shown
is frivolous, or vexatious or otherwise an abuse of the process of court he may apply to
strike out the plaint.385Such an application should be made promptly, as a rule before the
defence is served.
He should consider whether before filing of the defence the claim is properly pleaded and
whether any portion of it is scandalous or embarrassing and if so he may apply to strike
out such portion.386
He should further consider whether before filing of the defence any further and better particulars
of the pleading are necessary or desirable in order to enable him to plead or for some
special reason, in which case he may consider applying for such particulars before the
defence or he may consider that he is entitled to such particulars but only he has filed a
defence.387
The defendants counsel must also consider whether the proper parties have been placed on the
record. If the proper parties are not before the court, his remedy is to apply to add or
substitute or strike a plaintiff or defendant. 388 The court will make an order to add a
defendant more readily than to add a plaintiff.
If the causes of action which cannot conveniently be tried together are joined in same action, the
court will order them to be tried separately or on application of the defendant the court
may give directions, confining the action to such of the cause of action as can
conveniently be disposed of together, and excluding other claims. 389
The defendants counsel must further consider whether it is a proper case for bringing third party
proceeding against a third party, in which case he will be entitled to do so without leave
before filing of the defence.390
Consideration must be given to the expiry of the relevant period of limitation. 391
Pleading style
(a)

Each material fact should be pleaded. Counsel for the defendant should commence
his/her pleadings by dealing with the material facts alleged in the plaint in the order in
which they are alleged, either by admitting or traversing each of them. If he/she should
omit to deny any material allegation of fact in the plaint or to state expressly that he/she
does not admit it, he/she will be deemed to admit it. 392

384

Opika Opoka vs. Munno Newspaper [1990-91] KALR 15 at 17

O.6 r 30 or O.7 r 11 Habib Javer Manji vs. Vir. Singh [1962] EA 557
386
O.6 r 18 Lukyamuzi vs. House and Tenant Agencies Ltd. [1983] HCB 74 & 75 Epaineto Mubiru vs.
UCB Supra n.
387
O.6 r 4 Kashibai vs Serepagama (1967) EA 16
388
O.1 r 10(2) (4) Parry vs. Carson [1962] EA 515 Ponjo vs. Toro African Bus Co. [1980] HCB 57
Sajjabi vs. Timber Manufacturers Ltd. [1978] HCB 202 Matovu vs. Singh [1973] HCB 113
389
O.2 r 5, O.2 r 6 Metropole Pharmacy (U) Ltd. vs. Dr. Katumba [1975] HCB 19
390
O.1 r 14
391
Limitation Act Cap 80, The Civil Procedure and Limitation (Miscellaneous Provisions) Act
392
O.8 r 3 Yusuf Ali Mohmed Oaman vs. D.T. Dobie & Co. Tanganyika Ltd. [1963] EA 288, Pushpa vs.
Fleet Transport Co. [1960] EA 1025 Joshit vs. Uganda Sugar Factory [1960] EA 57 Talituka vs.
385

97

This rule is of crucial importance in the machinery of pleadings, since it compels every
allegation of fact in the statement of claim to be dealt with matter by matter and thus
ensure that the parties are brought clearly and precisely to defined issues.
(b)

Law need not be pleaded to

He need not, however traverse any allegation of law. Strictly, matters of law should not
appear in pleading. If the plaintiff in his plaint asserts a right in himself without showing
on what facts his claim of right is founded, or asserts that the defendant is indebted to
him or owes him a duty without alleging the facts out of which the indebtedness duly
arises, his pleadings are bad and may be struck out.
If however, the plaintiff asserts certain facts and then states the inference of law which he
draws from them, they will stand admitted unless the defendant expressly denies them.
But he need not, though in practice he usually does, deny that they create the alleged right
or duty. That is a question of law, which he should raise by an objection in point of law;
on the argument of which he will be taken to have admitted such facts as are not
specifically denied.

Form of Written Statement of Defence

Title

- Written Statement of Defence

Format - The defence is not required to follow any particular form, but
(a)

It must, if necessary, be divided into paragraphs numbered consecutively.

(b)

Each allegation must, so far as convenient, be contained in a separate paragraph.

(c)

Each distinct ground of defence should, therefore, be stated in a separate paragraph and
such paragraph may be introduced by a few words of explanation.

(d)

A paragraph which is applicable only to a part of a claim, or to one of several distinct

grounds of claim., should be prefaced by words which show distinctly that it is pleaded
only that part of the plaintiffs claim or to that ground of claim it is germane.
(i)
(ii)
(iii)
(iv)
(v)

(e)

In the alternative the defendant avers that .

If, the defendant did , which he denies, he says that ..
If, contrary to what the defendant contends, the plaintiff did , the defendant
avers that
In further answer to para 4 of the plaint, the defendant avers that ..
At to Shs., part of the money claimed by the plaintiff in his action, the
defendant says that .

It is desirable both from the point of view of convenience and clarity to observe some
kind of order in framing of a defence.
(i)
(ii)

Admissions and denials

Objections in point of law

Nakendo [1979] HCB 275

98

(iii)
(iv)
(v)

Special defence
Setoff
Counterclaim

More than one defendant

Where there are two or more defendants they may at their discretion either join in one defence or
serve separate defences.393
If separate defendants are served in an action in which the plaintiff has but one and the same
cause of action against all defendants, then, the defence of one defendant is available to other
defendants.394
Where they join in the same defence, they should traverse for both and also for each of them.
The defendants deny that they were or that either of them was guilty of the alleged or any
negligence as alleged or at all.
Admissions Express or Implied by Non-Traverse
Admissions may be express or implied.
Admissions in the defence may be made expressly or may arise by implication from non traverse
of a material fact in his statement of claim.
What should be admitted?
The defendant ought properly to admit in his defence material facts as to which there is really no
controversy and conversely he ought not to deny plain and acknowledged facts which it is neither
in his interest nor in his power to disprove.395
How to admit
An express admission in the pleading ought to be clear, bold and unambiguous, and should
specify precisely what it is that is being admitted. Furthermore, it is an undesirable practice to
make what is substantially an affirmative allegation under the guise of an admission. For
judgment to be entered on admission, such admission must be clear, explicit and not open to
doubt.396 Once an admission of facts is made court may upon application make such order or give
such judgment.397
Implied admission
An implied admission arises in the defence where the defendant does not traverse any allegation
of fact made by the plaintiff in his plaint.398
393

O.1 r 3 Abdalla vs. Abdu [1977] HCB 244

Dirie vs. Richardson [1927] 1 KB 488
395
O.8 r 6 Multi-Holdings vs. UCB [1972] HCB 234
396
John Peter Nazareth vs. Barclays Bank International Ltd. EACA 39 of 1976 (unreported)
397
O.13 r 6 Mohamed B. M Dhanji vs Lulu & Co. [1960] EA 541 Pan African Insurance Co. vs Uganda
Airlines [1985]HCB 53
398
O.8 r 3 Yusuf Ali Mohamed Osman vs D.T. Dobie & Co. (Tanganyika) Ltd [1963] EA 288
394

99

This is the effect of the general rule that any allegation of fact made by a party in his pleading,
save as to damages, is deemed to be admitted unless it is traversed by the party in his pleading or
a joinder of issue which operates as a denial of it.
The effect of a traverse, if properly pleaded is that the party who makes the allegation has to
prove it; the effect of an allegation which is admitted or treated as admitted is that the party who
makes it need not prove it. Thus, if the facts pleaded in the plaint are admitted, there is no issue
between the parties on that part of the case which is concerned with those matters of fact and,
therefore no evidence is admissible in reference to those facts. 399
An implied admission has the same value and effect as if it were an express admission but of
course the plaintiff must show that the matters in question are clearly pleaded in order to fix the
defendant with an admission.
Circumstances where an implied admission does not arise
An implied admission by non-traverse will however, not arise, where:
(a)
(b)
(c)

there is a denial by joinder of issue;400

there is an omission to plead to the claim for damages; 401
there is an omission to plead to particulars.402

Advantages of making admissions

(a)

Costs It is not always advisable to traverse every disputed allegation in the plaint, since
to do so may render the defendant liable for costs 403which he might have avoided by
admitting facts which the plaintiff will be required to prove and which he is in position
reasonably to controvert or challenge.

(b)

The right to begin By making proper and sufficient admissions the defendant may be
able to obtain the right to begin at trial and thereby also the right to reply since proof of
any issue at trial lies upon the plaintiff, he has a right to begin, which also involves the
right to reply.

Tactical denials
On the other hand; it is sometimes important to traverse an allegation in the plaint, in order to
compel the plaintiff to call a particular witness whom the defendant may wish to cross examine so
as to prove some fact which is essential to his case, as for the purpose of cross examining the
witness on other matters material to the case. 404
Withdrawing an admission

399

Pioneer Plastic Containers Ltd. vs. Commissioner of Customs and Excise [1967] 1 ALLER 1053
O.6 r 9
401
O.8 r 4
402
Chapple vs. Electrical Trade Union [1961] 1 WLR 1290 Namardashaker M Joshi vs. Uganda Sugar
Factory [1968] EA 570
403
Multi Holdings vs. UCB [1972] HCB 234
404
Pinson vs. Lloyds and National Provincial Foreign Bank Ltd. [1941] 2 KB 72
400

100

In a proper case, a party who has made any admission unwarily or under a bonafide mistake or
prematurely will be allowed to amend or withdraw it on such terms as may be just. 405
Admission no particulars
Particulars will not be ordered of an admission, express or implied or made in a pleading. 406
Traverse by denial or non admission
Traverse What is it?
A traverse in the defence is a denial of an allegation of fact made in the statement of claim/plaint.
What does a traverse do?
(a)

It negates such allegation

(b)

It operates to contradict what is alleged and to put it in issue.

(c)

It casts upon the plaintiff the burden of proving allegations denied.

A traverse must be made by a denial or by a statement of non-admission, and it may be made

either expressly or by necessary implication. 407 It is a rule of pleading that an averment not
expressly or implicitly traversed is deemed to have been admitted. 408
Every allegation of fact made in the plaint, except as damages, which the defendant does not
intend to admit must specifically be traversed by him in his defence. A general denial of such
allegations or a general statement of non-admission of them is not a sufficient traverse of them. 409
Traverse must be specific not general
Each material fact must be traversed as the effect of the traverse in the defence is to deny an
allegation of fact in the plaint, it must not be vague or general or evasive. Rather it must be
specific and must deal with each allegation of fact and as regards each must answer the point of
substance.410
Traverse must not be evasive
Where the defendant traverses whether by denial or refusal to admit, he must not do so evasively
but must answer the point of substance or ambiguous or equivocal or does not answer the point of
substance will amount to a specific traverse of the allegation. 411
405

Hollis vs. Burton [1892] 3 CH 266 International Life Insurance Co. (UK) Ltd vs Amin Civil Application
No.12 of 1968 (unreported)
406
Fox H Wood vs. Harrow Ltd. [1963] 2 QB 601
407
O.8 r 3 Yusuf Ali Mohamed Osman vs. D.T. Dobie & Co. Tanganyika Ltd. [1963] EA 288
408
HM Kayondo vs. Somani Amirali HCCS No. 183 of 1994 [1995] IV KALR 78
409
Pushpa vs. Fleet Tramsport Co. [1960] EA 1025
Joshi vs. Uganda Sugar Factory [1960] EA 570 Talituka vs. Nakendo [1979] HCB 275
410
O.6 r8 Shah vs. Patel [1961] EA 397, Byabasaija vs. A.G [1992] KALR 161Defendant cannot call
evidence where written statement of defence is general denial without raising any defence.
411
O.6 r 10 Josh vs. Uganda Sugar Factory Ltd. [1968] EA 570

101

Avoid the incomplete admission

The defendant must deal specifically with every allegation of fact made by the plaintiff. he must
clearly admit or deny it. Any half admission or half denial is evasive.
Traverse material facts not particulars
A plaintiff, when alleging a material fact, should add details of time and place and amount or
other surrounding circumstances. But it is not proper for the defendant, when denying that
material fact, to traverse at the same time those details and circumstances, for by doing so he will
obscure the issue and render it impossible for the plaintiff certainty to know what it is that the
defendant really means to dispute.412
Pleadings not pleaded cannot be relied upon contributory negligence or particulars were not
pleased in the Statement of Defence and therefore could not rely on it at trial. 413
Denials of damages
Exceptions to the general rule
Any allegation that a party has suffered damage is deemed to have been traversed unless
specifically admitted.414
This renders unnecessary any specific denial of damage alleged to have been suffered, whether
the damage alleged is general or special and whether the damage alleged is or is not part of the
cause of action.
When special damage is essential to cause of action
Where, however, special damage is an essential ingredient of the cause of action, it is generally
advisable, if not necessary to deal specifically with such damage in the defence by raising an
objection in point of law; for example that the claim of the plaintiff is not maintainable without
proof of special damage and none is alleged or that special damage alleged is not sufficient in
point of law to sustain the action.415

412

Namadshanker M Joshi vs. Uganda Sugar Factory Ltd. Supra n

Tom Mukalazi vs. Davis Kisule HCCS No. 442 of 1992 [1995] III KALR 42
414
O.8 r 4
415
Ward vs. Lewis [1955] 1 WLR 9
413

102

Figure 2:
THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
(COMMERCIAL DIVISION)

CIVIL SUIT NO. 576 OF 2004

1. DR. JAMES
2. MRS. DR.

... PLAINTIFFS

VERSUS
1. SR. W
2. SR. M

.......DEFENDANTS
WRITTEN STATEMENT OF DEFENCE

1.

Save as hereinafter expressly admitted the defendants deny each and every allegation contained in
the Plaint as if the same were set forth verbatim and traversed seriatim.

2.

The defendants admit the contents of paragraphs 1 and 2 of the Plaint and further add that their
address of service for purposes of this suit is c/o M/s Ssekaana Associated Advocates
&Consultants, Plot 38 William Street, P.O.Box 70075 Kampala.

3.

The defendants deny the contents of paragraph 3 of the Plaint and they have never had or received
any money from the plaintiffs.

4.

In further answer to the contents of paragraph 3, the plaintiffs paid the money to M/s Kasulu
Property Masters E.A Ltd before the agreement was executed on 6-08-2004. See Annextures B1,
B2, B3 attached to the Specially Endorsed Plaint.

5.

The defendants shall raise a preliminary objection that the Plaint does not disclose a cause of
action and that the claim for money had and received is misconceived and unmaintainable against
them.

6.

The defendants shall aver and contend that an action for money had and received is only
maintainable against the actual person who received the money.

103

7.

The contents of paragraph 4 (i) are admitted in part that an agreement was executed on 6-08-2004
as per the copy of the agreement attached to the Specially Endorsed Plaint.

8.

The contents of paragraph 4 (ii) are admitted in part that the money was paid to M/s Kasulu
Property Masters (E.A) Ltd before the agreement was executed as evidenced on the receipts
attached to Plaint as B1, B2 and B3 and was at this stage acting for the plaintiffs and not on behalf
of the defendants in any way.

9.

The defendants aver that M/s Kasulu Property Masters EA Ltd was only supposed to get potential
buyers of land and not to receive money or conclude the transaction on their behalf and no such
authority was ever given to it.

10. The defendants further contend that they did not ratify the actions of M/s Kasulu Property Masters
entered into before the execution of the agreement.
11. In further answer to paragraph 4, the defendants contend that M/s Kasulu Property Masters EA Ltd
was never authorised to receive any money on their behalf and in any case Kasulu Property
Masters was at all material times acting for and in the interests of the plaintiffs.
12. The defendants contend that M/s Kasulu Property Masters (EA) Ltd was entitled to a commission
of 10% as a party who had got potential buyers and was commission agent in regard to this
transaction.
13. The defendants further contend that agency in land matters is created by way of power of attorney
in accordance with the Registration of Titles Act Cap 230.
14. The defendants shall further aver and contend that they have not breached any term of the
agreement as seen in paragraph 2,3 and 4 of the agreement. A copy of agreement is attached to the
Specially Endorsed Plaint.
15. The defendants contend that the transaction was only supposed to be concluded upon full payment
from the M/s Kasulu Property Masters (EA) Ltd as stipulated in the agreement.
WHEREFORE, the defendants contend that the Plaintiffs are not entitled to any of the relief sought in
paragraph 3 and 5 of the Plaint and (i and ii) of the prayers and prays that this Honourable Court be pleased
to dismiss the plaintiffs suit with costs.
Dated at Kampala this day of2004
_________________________________________

M/s SA Advocates
COUNSEL FOR THE DEFENDANTS
Lodged in the Registry this..day of2004

_________________________________
REGISTRAR/DEPUTY REGISTRAR
Drawn & filed by:
M/s SA Advocates,
Plot 38, William Street
P.O.Box 70075
Kampala.

104

SETOFF AND COUNTERCLAIM

In addition to the matters which are strictly answers to the plaintiffs claim, the defendant may
have a cross claim against the plaintiff which entitles him to refuse to pay the amount demanded
from him. This may either be a setoff or a counterclaim. 416
It should, however be noted that although every setoff can be pleaded as a counterclaim if the
defendant so desires it, not every counterclaim can be pleaded as a setoff. But both alike must be
specifically pleaded.
In case of government, a person shall not be entitled to avail himself or her self of any setoff or
counterclaim in any proceeding by the Government for the recovery of taxes, duties or penalties,
or to avail himself or herself, in proceedings by the government of any nature, any setoff or
counter claim arising out of a right or claim to repayment in respect of any taxes, duties or
penalties.417
The distinction between setoff and counterclaim
(a)

A setoff is in the nature of a defence, whereas a counterclaim is in the nature of a crossaction. If the plaintiff obtains judgment or the action is stayed, discontinued or
dismissed, the setoff also comes to an end whereas in such events a counterclaim may
still be proceeded with.

(b)

Under a setoff, the defendant can recover nothing against the plaintiff for he can only use
the setoff as a defence or answer to plaintiffs claim equal to the amount of the setoff. As
it is only a defence the plaintiff cannot obtain security for costs in respect of a setoff
raised by a foreign defendant or an impecunious limited company as he may in the case
of a separate and independent counterclaim.

(c)

The setoff is treated as a defence for the purposes of judgment, execution, costs, taxation,
since judgment is given for the plaintiff in the action only for the amount if any, of the
excess of his claim over the amount found due to defendant on the setoff.

(d)

A setoff may be raised only in respect of a claim by the plaintiff of a sum of money,
whether such sum be a claim for debt or damages.

416
417

O.8 r 2
Rule 12 of The Government Proceedings (Civil Procedure) Rules

105

A setoff is thus a claim by the defendant to a sum of money; whether of an ascertained

amount or not, which is relied on as a defence to the whole or part of the claim made by
the plaintiff.
Setoff when it arises
1.
2.
3.

a setoff of mutual debts

in certain cases a setting up of matters of complaint which if established, reduce or even
extinguish the claim; and
reliance upon equitable setoff and reliance as a matter of defence upon matters of equity.

Nature of a setoff
A setoff must have accrued at the commencement of the action. 418 Court has discretion to allow a
setoff.
A shield not a sword
The plea of setoff can only be used by way of defence to the plaintiffs action. 419 Claims cannot
therefore be the subject of setoff, unless they exist between the same parties and in the same
right.420 On the other hand, the defendant can setoff a debt originally due from the plaintiff to a
third party which the latter has assigned to the defendant.
Pleading setoff
Where claim exceeds setoff.
Where a claim by a defendant to a sum of money, whether of an ascertained amount or not is
relied on as a defence to the whole or part of a claim made by the plaintiff, it may be included in
the defence and setoff against the plaintiffs claim, whether or not it is also added as a
counterclaim.
The question as to what is a setoff is to be determined as a matter of law and is not in anyway
governed by the language used by the parties in their pleadings. 421
Where setoff exceeds claim
If the amount of such cross-demand exceeds the amount of the plaintiffs liquidated claim, the
defendant may plead in his defence a setoff of part of the debt due from the plaintiff, and may
counterclaim for the residue of it, so as to recover judgment against the plaintiff for excess.
Hence it is usual to find in such a defence;
Further and without prejudice to the foregoing, the defendant will seek to setoff so much of his
counterclaim herein as will extinguish or diminish the amount of the plaintiffs claim in
diminution or extinction of the plaintiffs claim.
418

Smith vs. Betty [1903] 2 KB 377

Stooke vs. Taylor (1880) 5 QBD 569
420
Lord Trustees vs. Great Eastern Railway [1908] 1KB 195
421
Hanak vs. Green [1958] 2 QB 9
419

106

Setoff is pleaded generally

One defence of setoff may be pleaded generally to the whole claim to which the defence is
applicable, without specifying how much is intended to apply to each ground claim. Thus, if
issue is joined upon defence of payment, and the defendant fails to prove such payment to be full
amount alleged, he is nevertheless entitled to avail himself of the partial payment proved as
defence pro tanto. The plaintiff will be entitled to the judgment for the balance unproved.
The pleading of a setoff should be particularized
A defence of setoff should state with some particularity the debt or other matter sought to be
setoff. The requisite degree of particularity is not readily to be defined and must depend on the
circumstances. The facts should, however be stated in such a manner as will put the opposite
party on his guard and prevent surprise.422
When issue is joined without a reply
Where a setoff is pleaded by way of defence and not by way of counterclaim and the plaintiff
merely wishes to deny the material facts alleged in such a defence. No reply is necessary to
traverse specifically such facts one by one.
COUNTER-CLAIM
Nature of counterclaim
A counterclaim is substantially a cross action, and not merely a defence to the plaintiffs claim. It
is a cross claim, which the defendant may raise in the very action brought against him by the
plaintiff, instead of himself bringing a separate, independent action against the plaintiff. 423
A counterclaim is an independent and separate action, which is tried with the original action. The
court has discretion to exclude counterclaim. 424
Principles as to pleading a counterclaim
The rules of pleading apply to counterclaim and to a defence to counterclaim as though they are
respectively a plaint and a written statement defence.
Similarly, the rules relating to the joinder of causes of action apply to counterclaim as if it were a
separate action and as if the person making the counterclaim were a plaintiff and the person
against whom it is made were a defendant.
In summary, therefore, if the defendant has a valid cause of action of any description against a
plaintiff, there is no necessity for him to bring a separate cross action since he can make a counter
claim in same action against the plaintiff.425
Conditions precedent to a successful counterclaim
422

Pinson vs. Lloyds Bank [1941] 2 KB 72

O.8 rr 2, 7, 8
424
O.8 r 12 General Trading Co. Ltd. vs. Patel (1958) EA 702
425
Karche vs. UTC [1967] EA 774 Uganda Wholesalers Ltd. vs. Impex House Ltd., [1971] HCB 245
423

107

The claim set up by the counterclaim must be one in respect of which the defendant could
maintain a separate action and it must be of such nature that the court would have jurisdiction to
entertain a separate action.426
Grounds of defence as counterclaim
The defendant is not allowed to rely for his counterclaim upon matters which have been stated
simply as grounds of defence to the plaintiffs claim, and are not specifically referred to in the
counterclaim unless he has repeated them or incorporated them by reference in his counterclaim,
as he is at liberty to do.427
When a defendant sets up a counterclaim, and the suit of the plaintiff is stayed or discontinued or
dismissed, a counterclaim may nevertheless be proceeded with. 428 The principle is that the
counterclaim is a cross action and is not affected by anything, which relates solely to the
plaintiffs claim.429

426

Karshe vs. UTC [1967] EA 744

Benow vs. Low (1880) 13 CHD 553
428
O.8 r 13 British General Insurance Co. Ltd. vs. Moshanlul Sulank CACA No. 30 of 1997 (unreported)
429
Charles Lwanga vs. Centenary Rural bank SCCA No. 33 of 1999 (unreported)
427

108

Figure 3:
THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT FORT PORTAL
H.C.C.S NO. 0002 OF 2005
HASFA NABUKERA ::::::::::::::::::::::::::::::::::::::::::::PLAINTIFF
VERSUS
MUDHAFAR OMAR :::::::::::::::::::::::::::::::::::::::::::::DEFENDANT
AMENDED WRITTEN STATEMENT OF DEFENCE AND COUNTER CLAIM
1.

SAVE as herein expressly admitted the Defendant denies each and every allegation of fact
contained in the Plaint as if the same were herein set forth and traversed seriatim.

2.

The Defendant the description of the Parties as set out in paragraphs 1 and 2 of the Plaint save
that his address of service for purposes of this suit shall be C/o M/s S. Associated Advocates
Plot 38 William Street P.O. Box 70075 Kampala.

3.

The Defendant avers that the Plaint is bad in law, discloses no cause of action and is frivolous
and vexatious and that the Plaintiff has no locus stand to institute the suit and the Plaint
should be struck out with costs.

4.

The Defendant denies paragraphs 3-7 of the Plaint and will aver that the house in question
belonged to Cofftea Trading Co. and on the 20 th of December 2004 the said house was sold to
the Defendant and a Sale Agreement Annexture A was made. The said Agreement was
formalized by another Agreement dated 11th January 2005 Annexture B

5.

The Defendant avers that YUSUF MUSTAFA the husband of the Plaintiff only lived
in the said house as a worker of Cofftea Trading Co. and has never owned the said
house.

6.

The Defendant will further aver that the Plaintiffs husband not being a proprietor of the said
house neither Mustafa not the Plaintiff need to have been party to the Sale Agreement.

7.

The Defendant will further aver that as the owner of the said premises the Defendant is
entitled to quite possession of the premises.

8.

WHEREFORE the Defendant prays that the Suit be dismissed with costs.
COUNTER CLAIM

109

9.

By way of Counter Claim, the Defendant contends that he purchased the said house
from the owners Cofftea Trading Co. on 20th December 2004. A copy of a brief Sale
Agreement is attached hereto marked AGR

10.

The Defendant further contends that a detailed Agreement was executed in January
2005 setting out the terms. A copy of the Agreement is attached hereto marked
SAL.AGR.

11.

The Defendant shall aver that the said house and plot belonged to him as way back
as 1980 before he sold it to the Cofftea Trading Co. due to financial problems. A
copy of the Sale Agreement is attached hereto marked FAGR

12.

The Defendant further contends that he made several applications for the grant of
lease to the relevant offices for the grant of lease. Copies of the applications are
collectively attached hereto marked APP. LET.

13.

The Defendant shall contend that he was granted a lease offer of the said land on
which he had a house or building. A copy of lease offer is attached hereto marked
LO.

14.

The Defendant shall contend that Cofftea Trading Co. took possession and started
occupying the same through its different employees. A copy of the receipt for
payment of Ground Rent is attached hereto marked GEN. DEC.

15.

The Plaintiffs husband occupied the house as an employee of the Company and as
such is not entitled to claim ownership as such and could not pass any Title to the
Plaintiff.

16.

In addition, the Plaintiff has no interest in the said land or house whatsoever and her
continued occupation amounts to unjust enrichment to the detriment of the
Defendant.

17.

The Defendant shall further contend that the Plaintiff continued occupation of the
house without paying rent has occasioned the Defendant financial and economic loss.
PARTICULARS OF LOSS.
- Non payment of rent since January 2005 to-date

18. This Counter Claim arises within the jurisdiction of this Court.
WHEREFORE the Defendant prays for Judgement in the following terms;
a)
b)
c)
d)
e)
f)

An Order for vacant possession against the Plaintiff or agents

An Order of Eviction
Mesne profits accruing since January 2005
General damages
Interest at 27% per annum
Costs of the Suit

Dated at Kampala this.day of2005

110

_____________________________________
M/s SA ADVOCATES
Counsel For The Defendant/Counter-Claimant
DRAWN & FILED BY
M/S S.A ADVOCATES
PLOT 38 WILLIAM STREET
P.O. BOX 8911,
KAMPALA
Figure 4:
THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT FORT PORTAL
H.C.C.S NO. 0002 OF 2005
HASFA NABUKERA ::::::::::::::::::::::::::::::::::::::::::::PLAINTIFF
VERSUS
MUDHAFAR OMAR :::::::::::::::::::::::::::::::::::::::::::::DEFENDANT
SUMMARY OF EVIDENCE
The Defendant will adduce evidence to show that the house originally belonged to him, he sold it to Cofftea
Trading Company used to house its workers inclusive the Plaintiffs husband in the said house. The
Company now does most of its work in Mombasa and Kampala and decided to sell the house to the
Defendant.

LIST OF WITNESSES
1.
2.
3.

Defendant
General Manager Cofftea Trading Co.
Adifa Ahmed

LIST OF DOCUMENTS
1.
2.
3.
4.
5.

Sale Agreement between Defendant and Cofftea Trading Co. Defendant selling house to
Cofftea.
Judgement of His Worship (as then was) Kasule- Kalanda in Fort-Portal Civil Appeal No. 47
of 1980.
Lease offer dated 5th February 1988 to the Defendant.
Sale Agreement dated 12th December 2004 between Cofftea Trading Co. and the Defendant.
Sale Agreement dated 11th January 2005.

LIST OF AUTHORITIES
1.
2.
3.
4.

Civil Procedure Act

Civil Procedure Rules
The Land Act
Case law.

Dated at Kampala this.day of2005

_____________________________________________________

111

M/S S.A ADVOCATES

COUNSEL FOR THE Defendant
DRAWN & FILED BY
M/S BHS ADVOCATES
PLOT 38 WILLIAM STREET
P.O. BOX 8911,
KAMPALA

REPLY AND SUBSEQUENT PLEADINGS

Functions of reply
A reply may be served by the plaintiff in answer to the defence of the defendant without leave. 430
When it is necessary for a reply
It is necessary for the plaintiff to serve a reply in the following cases:
If the defendant has pleaded a counterclaim which the plaintiff desires to contest; for he must, in
his reply and defence to counterclaim of which he does not admit the truth, except the
claim for damages.
If he desires to admit, so as to save unnecessary cost, some of the facts alleged in the defence,
while denying others, or if he desires to admit the facts, or some of the facts, alleged in
the defence, and to meet them by asserting new and additional facts.
If he desires to plead an objection in point of law.
If he desires to plead in answer to the defence that it mistakes the cause of action.
No reply-joinder
In many cases it is unnecessary to serve a reply. 431 If no reply is served to a defence which is
unaccompanied by a counterclaim, there is an implied joinder of issue on that defence which
means that the material allegations of fact in the defence are deemed denied.
Joinder of issue effect
A joinder of issue operates as a denial of all material allegations in the defence. If pleaded to the
whole defence, and if pleaded only to a part of the defence, to a denial of all such allegation in
that part. The reply should answer the whole of the matters to which it is pleaded.

430
431

O.8 r 11
O.8 r 18 Patel vs. Joshi (1952) 19 EACA 42 Onama vs. Uganda Argus Ltd. [1969] EA 92

112

Figure 6:
THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
CIVIL SUIT NO. 726 OF 2003
BUKENYA SAMUEL
T/A CENTRAL WATER
USERS COMMITTEE .PLAINTIFF
VERSUS
NATIONAL WATER &
SEWERAGE CORPORATION .DEFENDANT
REPLY TO WRITTEN STATEMENT OF DEFENCE
1. The Plaintiff joins issue with the defendant upon its defence save in so far as the same
consists of admissions.
2. In reply to the defence, the Plaintiff repeats the contents of paragraph 3,4,5,6,7,8,9,10,11
and 12 of the Plaint.
3. The Plaintiff further contends that in reply paragraph 7(a) that there was a clear written
agreement allowing the Plaintiff to install pipes to which the defendant was connecting
other consumers.
4. The Plaintiff denies ever connecting water users directly and was only giving them
permission before they would be connected by the defendant at a fee.
5. The defendant admits the existence of a contract in paragraph 7c, d, e, f and h of its
defence and the Plaintiff will revoke the doctrine of equitable Estoppel to estop the
defendant from denying the existence of contract and project.
6. The Plaintiff will aver and contend that the defendant was not willing to extend the
service to the area in 1997 because it was not densely inhabited.
7. The Plaintiff invested a lot of time and money in the project and the defendant maliciously
took it over after a disagreement with the Zonal Area Manager one Otto on a kick back
(bribe).
PARTICULARS OF MALICE
-

Alleging that there were illegal connections

113

Confiscating all the Plaintiffs documents

Confiscating all the pipes that were uprooted

8. In specific reply to paragraph 7c, d and e the Plaintiff contends that he duly paid the
connection fees for his residential home and was using the services of the defendant
legally.
9. In addition, the Plaintiff avers that he could not pay connection fees because he did not
have a residence in the area where the water project was to be made but the users had to
pay the connection fee to the defendant.
10. The Plaintiff was duly recognised as the owner of the line and no body could be connected
on the line without permission. A copy of the letter from the defendants legal officer is
attached hereto marked RA.
11. The Plaintiff further avers that there was never any illegal connection and the defendant
connected over 50 consumers through the Plaintiffs committee. A list of water users
connected to the defendant is attached hereto marked LIST.
12. The Plaintiff avers that the defendants mapping section always visited the project before
any new consumer could get connected or extended and they are estopped from denying
legality of the project.
13. The Plaintiff shall raise a preliminary objection that the defendants pleading are
offending rules of pleading and should therefore be struck out.
14. In reply to paragraph 7k, the Plaintiff contends that the defendant confiscated all the
documents and it is admitted in paragraph 7(i ) that they carried out an operation all
efforts to retrieve the documents have been futile. A copy of the letter of demand is
attached hereto marked LET.
15. The defendant has further refused any of the consumers who was connected through the
Central Water Users Committee from giving any copies of their water connection and has
threatened to disconnect them.
WHEREFORE the Plaintiff prays for Judgement and Orders as sought in the Plaint.

________________________________________
M/s S.A. Advocates
(COUNSEL FOR THE PLAINTIFF)
Drawn & filed by:
M/s S.A. Advocates
Plot 38, William Street
P.O.Box 70075
KAMPALA.

114

PLEADING TECHNIQUE
Multiple and inconsistent averments
The plaintiff in reply may rely either on legal or on equitable grounds of reply or on both and may
plead alternative or inconsistent grounds of reply if he thinks fit.
Reply should plead if possible to the particular grounds of the defence.
Where any particular ground of reply applies only to a part of the grounds of defence alleged by
the defendant, the paragraph stating that ground of reply should be so expressed as to show
distinctly that it is pleaded only to that part.
Pleading points
(a)

In replying to a defence the plaintiff may make use of a comprehensive form of traverse
called a Joinder of issue which runs as follows The plaintiff joins issues with the
defendant upon the defence. The effect of this sentence is to deny every material
allegation of fact in defence.432

(b)

The plaintiff may, however, if he wished, as a matter of course, admit certain allegation in
the defence and join issue with the defendant on paragraph 4 and 5 of the defence.

The Rule against departure

No departure from causes of action set out in plaint. The plaintiff must not set up in his reply a
new cause of action which is not raised in the plaint. This is because the plaintiff must not in his
reply make any allegation of fact or raise any new ground of claim inconsistent with his claim in
plaint. Inconsistent for this purposes does not merely mean mutually exclusive but new or
different.433
Departure meaning
The reply must not contradict or depart from the claim in the plaint, or it will be ground for an
application to strike out the reply in which the defect occurs.
Defence to counterclaim
As if the counterclaim were the plaint.

432
433

O.6 r 9
Herbert vs. Vanghan [1972] 3 ALLER 122

115

For purposes of pleading, a counterclaim is assimilated with statement of claim and the defence
to counterclaim with defence. Accordingly, a counterclaim served by the defendant on the
plaintiff or on the plaintiff and an added party operates as if the counterclaim were a plaint and
defendant making it a plaintiff.

Pleading to a counterclaim
If the plaintiff on whom a defendant serves a counter claim intends to defend it; he must serve on
that defendant a defence to counterclaim. If he serves both a reply and defence to counterclaim,
he must put them in the same document.
Pleading a reply and defence to counterclaim
It must be made perfectly clear how much of the pleading which is called the reply and defence to
counterclaim applies to the defence and how much to the counterclaim.
For this purposes, the pleading is formally divided into two parts. The first headed REPLY which
deals with the defence and the second one headed DEFENCE TO COUNTERCLAIM.
Counterclaim Joinder of issues
Since there can be no joinder of issue, implied or express, on a counterclaim the plaintiff or the
added party must specifically traverse every allegation of fact in the counterclaim which he does
not intend to admit, for otherwise he will be deemed to admit such allegation.
Accordingly, every ground of defence relied on must be specifically pleaded in the defence to
counterclaim as it is in a defence.
AMENDMENT OF PLEADINGS
Introduction purpose of the power to amend
The wide and extensive powers of amendment vested in courts are designed to prevent the failure
of justice due to procedural errors, mistakes and defects and serve the aims of justice.
The powers of amendment are intended to make more effective the function of the courts to
determine the true substantive merits of the case, to have regard to substance rather than form,
and thus to free the parties and court from the technicalities of procedure and to correct errors and
defects in the proceedings. Substantive justice shall be administered without undue regard to
technicalities practice.434
The object of the 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 the facts
already pleaded or the relief or remedy already claimed, but rather on the basis of true state of
facts or the true relief or remedy which the parties really and finally intend to rely on or to claim.

434

Article 126 (2) e Constitution

116

It is also one of the main reasons why most pleadings whether plaint or Written Statement of
Defence are couched in a logical cascade of alternatives, each introduced by the time honoured
phrase.
Further or in the alternative, if (which is denied) .. it costs nothing to add these when the
pleading is first drafted. It may be very expensive to add them later.
The court may at anytime, and on such terms as to costs or otherwise as it may think fit, amend
any defect or error in any proceeding in a suit; and all necessary amendments shall be made for
the purpose of determining the real question or issue raised by or depending on such
proceeding.435
However, the court cannot amend pleadings under this section where to do so would be
tantamount to exonerating a party from complying with statutory provision. 436
Amendment without leave
A party may, without leave of the court, amend any pleading of his own at anytime before the
pleadings are deemed to be closed. 437 A plaintiff may, without leave, amend his plaint once at
anytime within twenty-one days from date of issue of summons or where a written statement of
defence is filed, then with fourteen days from the filing of defence.
When he does so, he must serve the amended pleading on the opposite party. The right extends to
plaint, written statement of defence, counterclaim, defence to counterclaim and reply. It can only
be exercised only once and only before the close of pleadings.
Amendment by Consent
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. 438
This rule has been rarely practised since some advocates are ignorant of this rule but provided
both parties consciously acquiesce in the amendment of pleadings, courts should not interfere to
frustrate that objective. This saves costs and time, and the courts will only object if there is
evidence of fraud, mistake or undue influence.
The right to amend but not to add
The right conferred to amend pleadings without leave, is intended to save time and costs in
straightforward cases.
It does not give any wider or different right to amend. Amendments therefore should not be made
without leave, which could not or might not have been allowed to be made if an application for
such leave had been sought e.g. to add a cause of action to the plaint which has occurred after the
issue of summons.439
435

S.100 Civil Procedure Act

Biiso vs. Tibamwenda [1991] HCB 92
437
O.6 r20, 21, B.E.A. Timber Co. vs. Inder Singh Gill [1959] EA 463 Nakandi vs. Mukasa [1991]
ULSLR 101
438
O.51 r 7
436

117

Accordingly, whenever an amendment of a pleading is made without leave the opposite party
may apply to court to disallow the amendment. So court may order such amendment to be struck
out.440
Right to amend is reciprocal
Where an amended plaint is served on the defendant, he may if he has already served his defence,
amend his defence. Where an amended defence is served on the plaintiff, he may, if he has
already served a reply, amend his reply.441
Where a party has pleaded to a pleading which is there after properly amended without leave, and
served on him and he does not amend his own pleading, he will be taken to rely on it in answer to
the amended pleading. There will be an implied joinder of issue as if the amendment had been
contained in the original pleading. If, however, he does amend his own pleading, he is not
entitled to introduce any amendments that he chooses. He can only make such amendments as
are consequential upon the amendment. 442
The leave of the court
The court has wide and ample powers to allow the amendment of pleadings. Thus a party has
generally little difficult in obtaining leave to amend his own pleadings, provided his application is
not left to a stage so late in the proceedings that to allow an amendment then would be unjust to
his opponent.443
However negligent or carelessness may have been the first omission, and however late the
proposed amendment; the amendment should be allowed if it can be made without injustice to the
other side.444 There is no injustice if the other side can be compensated for by costs. 445
If on the other hand the amendment will put the other party into such a position that they must be
injured, it ought not be made.
Bowen L.J. noted that:446
I think it is a well established principle that the object of courts is to decide the rights of the
parties, and not to punish them for mistakes they make in the conduct of their cases by deciding
otherwise than in accordance with their rights I know of no kind of error or mistake which, if
not fraudulent or intended to overreach, the court ought to correct, if it can be done without
injustice to the other party courts do not exist for the sake of discipline, but for the sake of
deciding matters in controversy, and I dont regard such amendment as a matter of grace it
seems to me that as soon as it appears that the way in which a party has framed his case will not
lead to a decision of the real matter in controversy, it is as much a matter of right on his part to
have it corrected, if it can be done without injustice, as anything else in the case is a matter of
right.
439

Nambi vs. Bunyoro General merchants [1974] HCB 124, African Overseas Trading Company vs.
Acharya [1963] EA 468
440
O.6 r 22 Hagod Jack Simonian vs. Johar [1962] EA 336
441
O.6 r 24
442
Squire vs. Squire [1972] 1 ALLER 891
443
Eastern Bakery vs. Castelino [1958] EA 461
444
General Manager EAR & H vs. Thierstein [1968] EA 354 Nsereko vs. Taibu Lubega [1982] HCB 51
445
Wamanyi vs. Interfreight Fowarders (U) Ltd. [1990] II KALR 67
446
Cropper vs. Smith (1884) 26 CHD 700

118

The following principles appear to be recognized as governing the exercise of discretion or

allowing amendments.447
(a)

The amendment should not work injustice to the other side. An injury that can be
compensated by way of costs is not treated as an injustice.

(b)

Multiplicity of proceedings should be avoided as far as possible and all amendments,

which avoid such multiplicity, should be allowed.

(c)

An application which is made malafide should not be granted.

(d)

No amendment should be allowed where it is expressly or impliedly prohibited by any

law (Limitation of Action)448

An appellate court will not interfere with the discretion of the judge allowing or disallowing an
amendment to a pleading unless it appears that in reaching his decision he has proceeded upon
wrong materials or a wrong principle.449
However, an application to amend a defence can be allowed though made unduly late, if it would
facilitate the resolution of the real issues between parties. 450A defendant can apply for leave to
amend his pleadings in order to include a counterclaim; and he need not show that there was a
bonafide mistake why the counterclaim was not included in the written statement of defence. An
objecting plaintiff would have to show that if the amendment were allowed, it would prejudice his
case in such a way that costs cannot compensate him. 451
Accordingly, amendments may be allowed before or at the trial or after trial or even after
judgment.452 As long as allowing the amendment shall not prejudice the other party or as long as
the other party can be compensated by costs, amendment of pleadings should be freely allowed. 453
The House of Lords was of the view that it may be perfectly proper to allow a late amendment for
the purpose of clarifying issues between the parties, although noting that the late it became, the
more difficult it would be to clarify on issues. At a very late stage, it may be more prudent to
dismiss an action than to amend pleadings to state the case again. 454
It should be noted that a very late amendment may be allowed with an appropriately onerous
order as to costs. The usual rule is that where an amendment is allowed, the party seeking to
amend must pay costs of and occasioned by the amendment. These costs will comprise the
447

Gaso Transport Services Ltd. vs. Martin Adala Obene SCCA 4/1994 [1994] VI KALR 5
Barclays Bank vs. Shams Udin [1973] EA 451, Stanely & Sons vs. Dobias & C. [1975] EA 84
449
Sebunya vs Uganda Commercial Bank [1992-1993] HCB 224
450
Sendegeya vs. Masaka Co-operative Union [1992] KALR 89, Okiya vs. New O.K. Mill Ltd. [1987]
HCB 53 Semukiima vs. Kaddu [1976] HCB 15 An application to strike out will be allowed and an
application to amend refused where the proposed amendment will not cure the defect.
Wambua vs. Wathome [1968] EA 40
451
Coffee Marketing Board vs Kizito [1992-93] HCB 175 Zaver vs Bamanya [1994] IV KALR 34 (CS
No.584 of 1993)
452
General Manager EAR&H vs. Thiersten [1968] EA 354.GL Baker Ltd. vs. Medway Building and
Supplies Ltd. [1958] 3 ALLER 540,Copthall Strores Ltd. vs. Willoughbys Consolidated Co. [1916] AC
167
453
Matico Store Ltd. vs. James Mbabazi HCCS 993 of 1993 [1995] III KARL 31
454
Ketteman vs Hansel Properties Ltd [1987] AC 189,Beoco Ltd vs Alfa Laval Co.Ltd [1995] QB 137
448

119

correspondence relating to amend, preparation for and court attendance, and the costs relating to
any consequential amendment of subsequent pleadings.
Exercise of the discretion Practice
(a)

Before Trial
Leave to amend is readily granted on such terms, as court deems necessary. 455
Moreover, even before trial, the court will not readily give leave to amend where there is
ground for believing that an application is not made in good faith or where the
amendment seeks to introduce for the first time allegation of fraud. So

(b)

i)

The plaintiff may add a new cause of action and the defendant may add a new
ground of defence.

ii)

Either party may re-frame or reformulate his case so as to bring out the real
question in controversy between them.

At the Trial
Leave to amend may be granted, when to do so will not cause injustice to the other side
and on proper terms as to costs and the adjournment of the trial if necessary.
As a rule, leave to amend at the trial will not so readily be given. 456 Nevertheless, even
where the amendment is substantial so as to completely change the plaintiffs cause of
action or nature of claim, leave to amend may be given on proper terms.
Court should not refuse to allow an amendment simply because it introduced a new cause
of action, but there was no power to enable one cause of action to be substituted for
another; nor change, by means of amendment, the subject matter of the suit. 457
The more advanced the proceedings are, the greater the burden upon the applicant who
seeks leave to amend to prove to court that leave ought to be granted. However, court
should be more inclined to allow the amendment of the defects in a pleading rather than
give judgment in ignorance of facts which ought to be known before rights are definitely
decided.458
However, leave to amend will not readily be given:
(i)

Where the necessity for such amendment was obviously apparent long before
trial and was not asked for;459

455

Hasham Meralli vs. Javer Kassam & Sons Ltd. [1957] EA 503 Meru Farmers Co-operative Union vs.
Abudu Aziz Suleman [1966] EA 436
456
Wamanyi vs. Interfreight Forwarders (U) Ltd. [1990] II KALR 67
457
Sebunya vs Uganda Commercial Bank [1992-93] HCB 224
458
Gaso Transport Services (Bus) Ltd. vs. Martin Adala Obene SCCA 4/94 [1994] VI KALR 5
459
Moss vs. Malings (1886) 33 CHD 603

120

(ii)

Where the amendment would involve a complete change in the nature of the
action.460

(iii)

Where the amendment involves setting up an entirely different claim from that
which the defendant came to meet; 461

(iv)

Where the amendment raises an entirely new ground of defence or

counterclaim.462

(v)

Where an amendment introduces for the first time a charge of fraud. 463

Effect of amendment
An amendment of the pleadings duly made, with or without leave, takes effect, not from the date
when the amendment was made, but from the date of the original document, which it amended.
This rule applies to every successive amendment and at whatever stage the amendment is
made.464
The action continues as though the amendment had been inserted from the beginning.
Once pleadings are amended what stood before amendment is no longer material before the
court and no longer defines the issues to be tried.
Where an amended pleading aggrieves a party, the appropriate venue to address this grievance
would be replies to an amended pleading with no objection is estopped from raising the same on
appeal465.
Amendment as to remedy
Where, however, the amendment sought to be made relates to matters going to the remedy
claimed rather than introducing a new cause of action, the court will grant leave to amend the
original pleadings in order to allege facts arising subsequent to be date of counterclaim.
Practice
Leave Formulation i.e. it should be specified underlined with red. 466However the current
practice has been to underline with any colour. The major rationale for underlining the
amendment is to show what it being changed must be clearly apparent both to the court and to
other side. An oral application to amend during trial may be allowed if no injustice arises to the
other party.467An informal (oral) application to amend the notice of motion due to changed
460

Patel vs. Joshi (1952) 19 EACA 42 Gibbons vs. West Minister Bank td. [1939] 2 KB 882
Nambi vs. Bunyoro General Merchants [1974] HCB 124
461
Ellis vs. Manchester Carriage Co. [1876] CPD 13, G.P. Jani Properties vs. Dar es Salaam City
Council [1966] EA 281
462
Hill and Grant Ltd. vs. Hodson [1934] CH 53However British India General Insurance Co. Ltd. vs.
G.M. Pharma & Co. [1966] EA 172
463
David Acar vs. Acar Aciro [1982] HCB 60
464
Eastern Radio Service vs. Patel [1962] EA 818
465
SIETCO vs Noble Builders Ltd. SCCIV App. No. 31 of 1995 (unreported)
466
Uganda Credit and Savings Bank vs. Yosamu Muzeei [1960] EA 660
467
Bawa Ltd. vs. Didar Singh [1961] EA 282, Ntambi vs. AG [1992] V KALR 90 Kedi vs. A G [1991]
HCB 110

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circumstances was allowed in order to attain the ends of Justice by allowing the addition of an
injunction.468
CLOSE OF PLEADINGS
Rationale
In order to ensure that pleadings should not run on to a definite conclusion, rules fix the precise
date on which pleadings are deemed to be closed.
The close of pleadings is vital significant, not only as part of the system of pleadings, but also as
determining the date by reference to which further steps in action are required.
Significance of close of pleadings
(a) At the close of pleadings, there is an implied joinder of issue on the pleadings last served.
(b) The close of pleadings determines the date by reference to which parties are required to make
automatic mutual discovery by exchanging lists of documents, inspection without an
order of court.
(c) The close of pleadings determines the date by reference to which the summons for directions
must be issued.
Pleadings deemed to be closed
The pleadings are deemed to be closed in the following circumstances:(a)

If a plaint is served and a defence is not filed within the prescribed time in summons of
fifteen days.469

(b)

If a written statement of defence is filed. 470

(c)

If no reply or defence to counterclaim is served at the expiration of fifteen days after

service of defence.471

(d)

If a reply is served at the expiration of fifteen days after service of the reply.

(e)

If no reply but only a defence to counterclaim is served at the expiration of fifteen days
after the service of the defence to counterclaim.

(f)

As soon as any party has joined issues upon the preceding of the opposite party without
adding any further or other pleading thereto, or has made default in pleadings as between
such parties.472

468

Maria Nalikka Mpinga &3 Others vs Arnest Sensarire & Others C.A Civil Application No.35 of
1999[1998-2000] HCB 42
469
O.8 r 1
470
O.8 r 18
471
O.8 r 11, O.8 r 18(3)
472
O.8 r18 (4) see also O.8 r 18 (5)

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Outstanding request for particulars does not bar closure. The date which pleadings are deemed to
be closed is in no way dependent upon the fact that a request or an order for further and better
particulars has been made but has not been complied with by that time.
Amendment does not bar closure
Moreover, pleadings are deemed to be closed, not withstanding that one or other party may desire
to amend his pleadings or that pleadings are in-fact subsequently amended.
Striking out pleadings
The court is clothed with wide and ample powers, which are both useful and necessary to; 473
(a)

Enforce the rules of pleadings; and concurrently

(b)

Stay or dismiss proceedings which are:

an abuse of its process, such as frivolous, vexatious or harassing proceedings
manifestly groundless or in which there is clearly no cause of action or ground of defence
in law or in equity.

Although the court will not permit a plaintiff to be driven from the seat of judgment except where
this cause of action is incontestably bad, yet a stay or even a dismissal of proceedings may often
be required by the very essence of justice to be done, so as to prevent parties from being harassed
and put to expense by frivolous, vexatious or hopeless litigation. Any person can apply to strike
out pleadings; a defendant may apply to have a defence of his co-defendant struck out. 474
The following pleadings will be struck out:Pleadings disclosing no reasonable cause of action or ground of defence. To determine whether
or not a plaint discloses a cause of action, the court must look only at the plaint and its
annextures if any, and no where else.475
Scandalous pleadings may be ordered to be struck out or amended. Allegations in a pleading are
scandalous if they state matters which are indecent or offensive or are made for mere
purpose of abusing or prejudicing the opposite party.
Frivolous or vexatious pleadings and actions.

473

O.6 r 18 should be used where the pleadings is defective only in that it does not contain sufficient
particulars Habib Javer Manji vs. Vir Singh [1962] EA 557
Court can on its own motion, using its inherent powers, strike any pleadings where the defect is apparent
on the face of the record and where the defect cannot be cured by amendment. Kayondo vs. A.G. [198890] HCB 127 [1989] KALR 37, 40
474
All ports Freight Services (U) Ltd. vs. Julius Kamanyi HCCS No. 409 of 1995[1996]1 KALR 128
475
Kapeeka Coffee Works Ltd. and Abu Kasozi Kadjingo vs. Non Performing Assets Recovery Trust
CACA No. 53 of 2000 (unreported) Wycliff Kiggundu vs Attorney General SCCA 27 of 1992.Mulindwa
Birimumaso vs Government Central Purchasing Corporation CACA No.03 of 2002

123

Frivolous means a pleading or an action is frivolous when it is without substance or

unarguable.476
Thus, a proceeding may be said to be frivolous when:
A party is trifling with court, or
When to put it forward would be wasting the time of the court or
When it is not capable of reasoned argument or
Its without foundation; or
Where it cannot possibly succeed or
Where the action is brought or the defence is raised only for annoyance; or
Its to gain some fanciful advantage; or
When it can really lead to no possible good.
Vexatious meaning
A pleading or an action is vexatious when it lacks bonafides or is hopeless or oppressive and
tends to cause the opposite party unnecessary anxiety, trouble and expense. So it is vexatious and
wrong to make advocates parties to an action merely to obtain a discovery or evidence from them.
Court will dismiss any action if it is frivolous or vexatious in the sense that the pleadings disclose
no reasonable cause of action or answer, or are so plainly frivolous that to put them forward
would be an abuse of the process of the court as they are not likely to lead to any practical
result.477
4)

Pleadings tending to prejudice, embarrass or delay fair trial

Embarrassing meaning
A pleading is embarrassing which:
is ambiguous or unintelligible
states immaterial matter and so raises irrelevant issues which may involve expense, trouble, delay
and this prejudices the fair trial of the action.
contains unnecessary or irrelevant allegations.
involves a claim or a defence which a party is not entitled to make use of; or
the defendant does not make clear how much statement of claim he admits and how much he
denies; or
is a plea of justification leaving the plaintiff in doubt what the defendant has justified and what he
has not;
476

Nsereko vs. Lubega [1982] HCB 51.A defendant should move court to reject plaint before any
action/application to amend the plaint is filed. A plaint should not be rejected where a serious and
important point of law is to be determined; the case should go to trial and the point then taken on
pleadings
Katikiro of Buganda vs. A. G. Uganda [1958] EA 765
477
Zachary Olum &Anor vs The Attorney Genaral Constitutional Petition No.6 of 1999

124

involves denials in a defence where they are vague or ambiguous or are too general.

Abuse of process
The term abuse of process is often used interchangeably with the terms frivolous and vexatious
either separately or more usually in conjunction. An action is an abuse of the process of court
where it is pretence less or absolutely groundless.
A party whose pleadings are struck out under O.6 r 30 can appeal as of right without seeking
leave.478
Services of pleadings between parties
It is the responsibility of each party to prepare, produce and serve his pleadings upon the opposite
party. This is a fundamental feature of the adversary system of civil litigation/proceedings under
which parties have primary responsibility. Pleadings in court of laws are thus documents
interpartes.
Sequential service
The sequence in which the pleadings are required to be served, unless the court orders otherwise;
(a)

First The plaintiff must serve his plaint upon the defendant or upon each defendant if
there is more than one.

(b)

Secondly A defendant who intends to defend and has been served upon must serve his
defence upon the plaintiff and if he intends to make a counterclaim, he must add the
counterclaim to his defence. It should be noted that under the rules there is no obligation
imposed on the defendant to serve a written Statement of defence on the plaintiff.

(c)

The plaintiff on whom a defendant serves a defence must serve his reply on the defendant
if so required and if the defendant serves a counterclaim the plaintiff, if he intends to
defend it, serve on the defendant his defence to counterclaim.

478

Ejalu vs Uganda Railways Corporation [1994] 1 KALR 51(SC)

125

CHAPTER EIGHT
SERVICE OF COURT PROCESS
Where a suit has been duly instituted, the defendant shall be served in the manner prescribed to
enter appearance and answer the claim. 479
What is summons?
This is an official order requiring a person to attend court either to answer a claim/charge or to
give evidence. It is issued by court with a signature and seal of the court 480, the requirements of
signing and sealing are mandatory481and failure to comply with them renders the summons a
nullity. However, the summons which bore a seal of a Magistrate court instead of the high court
was found to be defective but the court noted that this was an irregularity capable of being waived
and did not render the service a nullity.482
Summons in civil matters usually refers to or must be accompanying the plaint. Every summons
shall be accompanied by a copy of the plaint, a brief summary of evidence, witnesses and
documents and authorities.483
Services of pleadings or orders, notices and documents between parties
It is the responsibility of each party to prepare, produce and serve his pleadings upon the opposite
party. This is a fundamental feature of the adversary system of civil proceedings under which
parties have primary responsibility pleadings in court of law are thus documents interpartes.
All orders, notices and documents required by the Act to be given to or served on any person shall
be served in the manner provided for the service of summons. 484
Every process issued under this Act shall be served at the expense of the party at whose behalf it
is issued unless court otherwise directs.485
Besides filing a written statement of defence, the defendant needs at the same time to proceed and
serve the plaintiff with a duplicate of the same at the plaintiffs address as required under the
rules.486
On whom is summons/court process served?
Summons may be issued to the defendant in person, to a recognized agent or to an advocate duly
instructed. Process served on a recognized agent of a party shall be as effectual as if the same
had been served on the party in person, unless the court otherwise directs.
479

S.20 also refer to S.21 of Civil Procedure Act

O.5 r 1 (5) E.A Plans Ltd. vs. Roger Allan Bickford [1971] HCB 225
481
Kaur vs. City Auto Mart [1967] EA 108
482
Nanjibhai Prabhudas vs Standard Bank [1968] EA 670
483
O.5 r 2 See also Kaur vs. City Auto Mart Ibid.
484
O.49 r 2
485
O.49 r 1,2
486
O.8 r 19 Salongo vs Kasese Town Council [1992-93] HCB163
480

126

An advocate by virtue of his/her representation of a party in court proceedings is entitled to

accept service on behalf of the client.O.3 r 4 creates the presumption that service of process on an
advocate of any party or process left at the advocates office or usual residence is duly
communicated and made known to the party whom the advocate represents. 487
The liability of the advocate to accept service subsists until conclusion of the suit. The suit is not
concluded until judgement is entered and bill of costs taxed. 488This liability further subsists until a
notice of change of advocates is filed in court. It is not enough for an advocate to state in court
that he/she has withdrawn his/her counsel. However the proper meaning of duly instructed or
duly appointed is a question as between the advocate and client. 489 The withdrawal must follow
the rule on withdrawal from cases set out in the advocates rules. 490Where an advocate has ceased
to act for lack of instructions, service of the hearing notice at his address is good if the defendant
has not furnished any other address.491
Service of summons shall be by delivery and transmission of summons for service. Any person
authorized by court or advocate or an advocates clerk may effect service of court process. Not
any clerk can effect service. An advocate clerk needs special permission of court.
How is summons served
Service of court process is effected by personal service by the plaintiff on each defendant or his
agent personal service means leaving a copy of the document with person served. Where the
person to be served refuses to accept the document, personal service will nevertheless be deemed
to have been effected provided the nature of the document was made known to him.
Where it is practicable, service shall be made on the defendant in person unless he/she has an
agent empowered to accept service.492
Proper effort must be made to effect personal service, but if it is not possible then service may be
made to an agent e.g. wife or an advocate.493
Service of court process may be effected on the defendant personally or on an agent by whom the
defendant carries on business. Service on an agent is effectual. 494 The plaintiff is supposed to file
an affidavit of service if he/she has served on an agent. 495
Service of summons could also be effected on an adult member of the family residing with him or
on an agent duly empowered. 496 If service is not effected on the defendant personally, and the
wife is served but refuses to sign, this service is not effective 497or service upon a wife of a
defendant who is known to have traveled abroad is not effective service. 498
487

Bendino vs Kamanda [1977] HCB 311

Beliram vs Salkand (1954) 27 KLR 28
489
Olwora vs U.C.C.U Ltd S.C.C.A No.25 of 1992
490
Rule 3 The Advocates (Professional Conduct) Regulations SI 267-2
491
Elkan vs Patel [1960] EA 340
492
O.5 r 10 Eruikana Omuchilo vs. Ayub Machiwa [1966] EA 229
493
Kiggundu vs. Kasujja [1971] HCB 164
494
O.5 r 11 Lalji vs. Devji [1962] EA 306 also UTC vs. Katongole [1975] HCB 336
495
Tindarwesire vs. Kabale T own Council [1980] HCB 33 Wasswa vs. Ochola [1991] ULSLR 161
496
O.5 r 13
497
Kiggundu vs. Kasujja [1971] HCB 164
498
Balenzi vs. Wanderi [1991] HCB 58
488

127

Where a duplicate of the summons is duly delivered and tendered to the defendant personally or
to an agent or other persons on his behalf, the defendant or such agent or other person shall be
required so to endorse. 499 This rule is mandatory and noncompliance means that service has not
been effected.500
The address of the person identifying the individual to be served must be included into the
affidavit of service.501
Whenever summons has been served, the person who effected service must annex an affidavit of
service stating 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.502
Failure to record the name and address of the person identifying the person to be served renders
the affidavit of service incurably defective. 503
Time of Service
Service of summons and court process must comply with the time and day of service i.e. service
on a Sunday is void within O.51 r 9 as no service of pleadings, notices, summonses, other than
summonses to file a defence can be effected on Sunday. 504 The same applied to such prohibited
days like public holidays under O.51 r 2.
The restrictive nature of this order leaves a lot to be desired, as it does not augur well with the
realities in Uganda where a person may deliberately avoid service and appear on Sunday at the
possible place of service. There is no justification for such waiver as it could assist in the delay of
justice. The rationale for issuance of Summonses and notices is to notify the other party about the
pending suit in court. The rules would create an absurdity if a person duly appears in court and
then seeks an order declaring that the summons has not been duly served on him or her.505
Service on Government
All documents required to be served on the Government for the purpose of or in connection with
civil proceedings shall be served on the Attorney General. 506
Service of summons against the Government must be on the Attorney General. 507
Service on Attorney General shall be effected by delivering or sending the summons to the
Attorney Generals chambers and shall not be deemed complete until Attorney General or another
officer of the government entitled to practice as an advocate in connection with the duties of his
office has acknowledged service of summons. 508
499

O.5 r 14
Narshidas M Mehta & Co. Ltd. vs. Baron Verheyen [1956] 2 TLR 300
501
Wasswa vs. Ochola Supra n
502
O.5 r 16
503
M. B Automobiles vs. Kampala Bus Service [1966] EA 480 Otwani vs. Bukenya Salongo [1976] HCB 62
504
Wasswa vs. Ochola Supra n
505
O.9 r 3
506
Article 250 (2) Constitution
507
S.11 Government Proceedings Act
508
Rule 5 The Civil Procedure (Government Proceedings) Rules
500

128

Certain provisions of O.5 do not apply to civil proceedings against the Government: Provisions of
rule 1(1) b, 3,4,20,21,22,23,24,25,26 and 27.
The time prescribed for the Government to file a defence is thirty days. 509
Service on a Member of Parliament can be effected in the same way an ordinary person is served
in civil matters. There is special protection accorded to them in respect of civil matters as
opposed to protection accorded in criminal matters.
Service on Corporation/Firms
Where the suit is against a corporation the summons may be served:
(a)

On the secretary or 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 business. 510

Whenever there is a Board Secretary and General Manager, service of court process ought to be
on any of them. Service on a Manager is not proper service as he is not a principal officer. 511
A distinction should be drawn between an individual defendant who defaults in entering
appearance/fails to file a defence and a secretary of an incorporated body which is a defendant
with his multifarious duties to perform. 512 Time does not begin to run against the defendant until
properly served.513The over protection accorded to corporations where they fail to appear in court
or file court documents within the time allowed is not justified since the person serving may not
know the operations of such corporation and sometimes these concerned officers are
unapproachable and the documents do go beyond gate keepers/security guards in most
corporations.
Where persons are sued as parties in the name of their firm, the summons shall be served: 514
(a)

Upon anyone or more of the partners or

(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.

Such service shall be deemed good service upon the firm sued whether all or any of the partners
are within or without Uganda.515

509

Rule 11 ibid
O.29 r 2 Jaffer vs. Ssegane [1972] 2 ULR 108
511
Jjala vs. Energo Project [1988-90] HCB 157 Musoke vs. East African Cotton Exporters [1976] HCB 33
512
K.C.C vs. Appolo Hotel Corporation [1985] HCB 77
513
Serwadda vs. Popular Tours & Travel Ltd. [1981] HCB 29 KCC vs. Appolo Hotel Ibid
514
O.30 r 3 Kudunga vs. NIC [1977] HCB 243
515
O.30 r 3
510

129

Substituted service within jurisdiction

The general rule is that where the court is satisfied for any reason the summons cannot be served
in the ordinary way court shall order substituted service in such other manner as it thinks fit. 516
Such service can take the form of advertisement in a newspaper or affixing a copy in some
conspicuous place in court or part of house. 517 Cannot be served in ordinary way includes the
case where the defendant, having knowledge of the existence of summons evades service.
Substituted service applies not only to summons but to any documents that require service 518.
Where the government is requested to effect of foreign legal process in Uganda, 519 it may make
all such orders for substituted service as may be necessary to give effect to O.5 r 30. 520
Procedure for substituted service
The plaintiffs application is ex-parte to Court by summons in chambers 521:
The affidavit will state:(a)

Date when the summons was issued.

(b)

The occasions on which personal service of the summons/court process was attempted,
and the facts upon which such inference of evasion of service were based;

(c)

The believed address of the defendant

(d)

The substituted service is the best method by which the summons will come within the
defendants knowledge.

Service by post
This is an alternative method of service in Uganda. The summons is sent by post to the defendant
at his usual and last known place of abode by registered mail. In some jurisdiction, service is
presumed to have been effected on the seventh day after posting. The presumption can be
rebutted; where for instance, it is shown that at the time of deemed service the defendant was not
within jurisdiction,522or where the defendant shows that he did not receive the summons until a
later date. It has also been held that the onus is on the plaintiff by way of affidavit to show that
the defendant had knowledge of summons within the deemed date of service period. 523

516

O.5 r 18
Erukana Omuchilo vs Ayub Machiwa [1960] EA 229
518
O.49 r 2 Cresensio Mukasa vs Zaverio Mukasa HCCS No. 921/89 (unreported) Hearing notices can be
served by substituted service.
519
O.5 r 30
520
O.5 r 31
521
O.5 r 32
522
Barclays Bank of Swaziland vs. Hahn [1989] 1 WLR 506, HL
523
India Vedeogram Association Ltd. vs. Patel [1991] 1 WLR 173
517

130

Service on persons who cannot be reached

Where the defendant is confined in a prison the summons shall be delivered or sent by post or
otherwise to the officer in charge of the prison for service on the defendant. 524 Also where the
defendant is a public officer or soldier, service may be sent for service to the head office in which
is employed or in respect of soldiers to his commanding officer. 525 Any person who is responsible
to receive and effect such service shall be bound to serve it and return the duplicate under his
signature with a written acknowledgement of defendant. 526
Service out of jurisdiction
Service out of jurisdiction of summons may be allowed by the court whenever (a) subject matter
is for immovable property, any act, deed, will, contract obligation or liability affecting immovable
property relief sought against any person ordinary resident or domiciled in Uganda, the suit for
administration of an estate of a person who was resident or domiciled in Uganda, suit for breach
of contract, any injunction sought to be done within the jurisdiction, tort. 527
The plaint must state the facts on which court is asked to assume jurisdiction. 528 The jurisdiction
of the court is limited by the definition of the circumstances in service outside jurisdiction may be
allowed.529
Any failure to make full and fair disclosure may justify discharging an order for service out of
jurisdiction. A probable cause of action must be shown for court to have a basis of granting such
orders.530
Every application for service out of jurisdiction shall be supported by an affidavit or such other
evidence stating that the deponent has a good cause of action stating in what country and place
such defendant may probably be found and whether such defendant is a commonwealth citizen or
British protected person or not.531
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.532
Renewal of Summons
When summons have been issued by the court and the person who is supposed to serve fails to
serve them in the specified date thereof, such summons have expired. They must be returned to
the court for renewal. The summons is supposed to be effected within twenty-one days from date
of issue, except that the time may be extended on application to court. 533
524

O.5 r 19
O.5 r 20
526
O.5 r 21
527
O.5 r 22
528
Assanand & Sons (Uganda) Ltd. vs. East African Records Ltd. [1959] EA 360
529
Karachi Gas Co. Ltd. vs. Isaaq [1965] EA 42
530
Donnebaum vs. Mikolashek [1966] EA 25
531
O.5 r 24
532
O.5 r 27
533
O.5 r 1(2)
525

131

However, there must be some good reason for delay in service to be shown before the court will
exercise its discretion in the plaintiffs favour and renew the summons.
Where a statutory limitation period has expired between the issue of summons and the application
for renewal, so that the granting of an extension would deprive the defendant of the benefit of the
Limitation Act, the summons will be renewed only in exceptional circumstances. 534
The court will issue fresh summons or renew the summons issued earlier on such condition as
court may deem fit.
Where, after a summons has been issued to the defendant, or to one of several defendants,
returned unserved, the plaintiff fails, for a period of one year from the date of the return made to
the court by the serving officer, apply for the issue of fresh summons, and to satisfy the court that
his/her best endeavours to discover the residence of the defendant who has not been served, or
that the defendant is avoiding service of process, the court may make an order that the suit be
dismissed as against the defendant.535
SERVICE OF COURT PROCESS ON FOREIGN STATE/BODY
When a proceeding is commenced against a foreign state, the forum state is not prohibited under
International Law from serving any writ, complaint, summons, or other document required
to be served for the instituting the proceedings, to appoint the date of entering an appearance,
or filing a defence or a plea, whether or not there exists any doubt with respect to the
immunity or non immunity of the foreign state. The courts pf the forum have jurisdiction to
establish whether they may exercise jurisdiction or not.
Even where immunity appears to be established from the beginning, service of process will not
amount to violation of International law, as the foreign state may waive its immunity.
Service of process must be effected on the competent organ of the foreign state and in forms
permissible under International law. It appears appropriate under international law, to effect
service on the Foreign Minister of the Central Government of the foreign state. In the case of
Kuwait Airways Corporation vs Iraqi Airways Co.& Others536
Service on a diplomatic mission was not service on the state of that mission for purposes of s
12(1) of 1978 Act. The express terms of s.12 (1) required service at, not merely on, the Foreign
Ministry of the state and service was not effected until there was transmission of the document
to the ministry and the document was received at the Ministry. Since the writ had never been
sent to the Ministry of Foreign Affairs in Baghdad there had been no effective service on the
state of Iraq.
In case of state owned or state controlled entities, which are legally distinct from the foreign state,
service, must be effected on the organ authorised to represent the entity for such service.537
Service of court process may also be effected in accordance with any special agreement for
service between the plaintiff and the foreign state or in any manner to which the foreign state has
534

Battersby vs. Anglo American Oil Co. Ltd. [1945] KB 23

O.9 r 19
536
[1995] 3 ALL.ER 694
537
Kuwait Airways Corporation vs Iraqi Airways Co. & Others [1995] 3 ALL.ER 694
535

132

agreed. It is a question of the domestic law of the forum state whether such service is considered
effective.
Service may be effected by transmittal of the relevant document by the Foreign Minister of the
forum state to the foreign Minister of the foreign state, 538 through the diplomatic channels of the
foreign state in accordance with an applicable international convention on service of judicial
documents.

538

O.5 r 28

133

CHAPTER NINE
COMMENCEMENT OF PROCEEDINGS
The Act provides that every suit shall be instituted in such a manner as may be prescribed by the
rules.539
High Court actions/suits may be commenced by an of the following originating process which
may be prescribed by the law:
(a)
(b)
(c)
(d)
(e)

Ordinary suit/plaint,
Originating summons;
Notice of Motion;
Petition;
Chamber Summons.

Every suit or appeal in the court of a chief magistrate or magistrate grade 1 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.540
The forms used for purposes of the Act shall, with such variation 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 approved by the High Court.541
Ordinary suit/plaint
This is the usual method of commencement where there is a substantial dispute as to the facts.
Every suit shall be instituted by presenting a plaint to the court or such officer as it appoints for
this purpose.542 Every plaint shall comply with the rules contained in O.6 and 7 so far as
applicable.543
Every plaint shall contain the following particulars. 544
(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;

(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;

539

S. 19 Civil Procedure Act

S.219 Magistrates Courts Act
541
O.49 r 3
542
O.4 r 1(1)
543
O.4 r 1 (2)
544
O.7 r 1
540

134

(g)

The relief which the plaintiff claims;

(h)

Where the plaintiff has allowed a setoff or relinquished a portion of his claim, the amount
so allowed or relinquished;

(i)

A statement of the value of the subject matter of the suit so far as the case admits

The main feature of the ordinary suit by way of a plaint is the exchange between the parties
written pleadings, as a result of which they join issue upon questions of fact. If there is no
dispute as to fact, if or the sole principal question between them is one of law.
A plaint need not be in a particular form, provided it complies with O.7 r 1.It is however the
practice that plaints have now taken a standard form largely because O.7 is not very flexible. The
most litigated requirement is that a plaint does not disclose a cause of action under O.7 r 1(e) i.e
that they do not have the necessary facts that constitute a cause of action. (Refer to Figures 1 &2)
Originating summons
The main advantage of originating summons proceeding is that they are speedier than an action
by way of plaint.
There are no pleadings and usually no witnesses. The evidence is given on affidavit and normally
there are no interlocutory applications such as discovery. Originating summons procedure is most
suitable where there is no substantial dispute as to the facts, 545but there is disagreement as to the
legal consequences arising from the undisputed facts. The correct procedure of a mortgagee who
is claiming for a relief of foreclosure and sale of mortgaged property is by way of originating
summons.546
The procedure by Originating summons was intended to enable simple matters to be settled by
court without bringing an action in the usual way, but not to determine matters, which involve a
serious question. It is trite law that when the disputed facts are complex and involve a
considerable amount of oral evidence, an originating summons is not the procedure to take. 547For
example allegations of human rights violations are highly contentious matters which cannot be
resolved by originating summons. 548
Form
The body of an originating summons must be drafted clearly and objectively in order to achieve
its purpose. In particular, it must define the issues and include (1) a statement of the questions on
which the plaintiff seeks the determination or directions of the court or (2) a concise statement of
the relief or remedy claimed with sufficient particulars to identify the cause or causes of action in
respect of which the plaintiff claims such relief or remedy 549 a party may not put forward one case
545

O.37 Makabugo vs. Francis Drake Serunjogi [1981] HCB 58Kulsumbhai G J Ranji vs. Abdulsein
Kalim [1957] EA 699Bhag Bhari vs. Mehdi Khan [1965] EA 94
546
Bitarabeho Christine vs Dr.Edward Kakonge CACA No.4 of 1999 [1997] HCB 55
547
Patrick Rwekibira vs Muwagibu Kamya [1972] 2 ULR 166
548
The Registrar of Societies and 2 Others vs Baraza la Wanawake Court Of Appeal Civil Appeal No.82 of
1999(T)
549
O.37 r8 W. W Kaggwa &16 Others vs Yowana Kiwanuka & 2 Others [1993] III KALR 77 U.C.B vs
General Parts (U) Ltd [1993] VI KALR 116

135

in his summons and then argue another in court, without amending his summons. Under the rules
an originating summons shall be in Form 13 of appendix B to these rules and shall specify the
relief sought.
In the case of Godfrey Lwasa vs Attorney General 550: the appellant presented a Chamber
Summons titled Application for issue of Originating Summons Chamber Summons (Exparte)the Court noted;
The document which was filed by the appellant to initiate these proceedings is very
different from the Originating Summons as prescribed under O.34 r 7(now O.37 r 8). The
law under which it is filed is not stated. What is certain is that it is not the Originating
Summons under O.34 r 7 (now O.37 r 8). it is unknown under our rules of procedure and
it should have been rejected as incompetent and incapable of initiating any proceedings
by Originating Summons.

550

Court of Appeal Civil Appeal No.33 of 2004

136

Copy of originating summons

Figure 7:

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA
ORIGINATING SUMMONS (O.S) NO. OF 2007
BETWEEN
ABC ... PLAINTIFF/APPLICANT
AND

1. XY LTD
2. KK DEFENDANT/RESPONDENT
Originating Summons
[Under S.7 and 8 of the Mortgage Act Cap 229; under O.37 Rules 4 and 8 of the CPR and/or S.98
of the CPA]
TO:
1. XY LTD
2. KK
P.O. BOX 70075
KAMPALA
WHEREAS the above named ABC having duly changed its name and issued with a certificate of
change of name hereto annexed as annexe CCN is a LEGAL MORTGAGEE or otherwise
entitled to a legal mortgage/charge over all the estate and interest in land comprised in LRV 382
FOLIO 9 SITUATE AT 44 BUDDU STREET REGISTERED IN THE NAMES OF KK of P.O.
BOX 5519 KAMPALA as security under the said legal mortgage and having been created under
the Registration of Titles Act, Cap 230 and the Mortgage Act cap 229 and registered as instrument
No. 259922 dated 21st October, 1993.
AND WHEREAS under the said mortgage the 1 st defendant is having got powers of attorney
donned by the 2nd defendant while the 2nd defendant is the registered proprietor and surety for the
purposes of the mortgage under clause (I) was the principal debtor and the mortgaged property is
the principal security.
AND WHEREAS the mortgagor herein has under the said mortgage deed defaulted in the
repayment of the principal loan amount together with accumulated interest amounting to Shillings
Forty eight million, three hundred seventy thousand, six hundred twenty five (Shs.48,370,625/=).
AND WHEREAS the mortgage has under the RTA Cap 230, The Mortgage Act and clause 5 of
the legal mortgage become entitled to realise the security comprised in the property hereinabove
described.
TAKE NOTICE therefore that the plaintiff as the legal mortgagee under the above said legal
mortgage claims against the defendant or seeks for the determination of the Honourable court on
the following questions/issues.

137

1. Whether the defendant is in breach of the covenant to pay under the legal mortgage.
2. What amount is due and owing to mortgage under the above said legal mortgage.
3. Whether the plaintiff is entitled to realise and enforce one security to realise the security
under the mortgage by foreclosure or sale of the principal loan amount together with
accumulated interest amounting to Shillings Forty eight million, three hundred seventy
thousand, six hundred twenty five (Shs.48,370,625/=)
WHEREUPON the plaintiff shall move court to grant the following orders and/or declarations as
hereunder:1. Payment of all the principal loan together with accumulated interest amounting to Shillings
Forty eight million, three hundred seventy thousand, six hundred twenty five
(Shs.48,370,625/=) forthwith.
2. An Order for foreclosure be made.
3. Order that the mortgaged land be offered for sale and actually be sold by the mortgagee
consequent upon the order of foreclosure.
4. Consequential or any further and other relief as the Honourable Court may deem fit, just and
reasonable.
5. Costs of this suit.
TAKE FURTHER NOTICE, that this Originating Summons is supported by and accompanied
with an Affidavit of the Applicant setting forth concisely the facts upon which the right to the
relief/s sought by the Summons is founded.
YOU ARE HEREBY required, if you desire to be heard upon the determination of the said
question/s, to appear (personally or by advocate) on the day of . 1995 at
in the fore or soon thereafter when Court shall proceed to make such orders by
way of declaration or otherwise as the Court may think just and expedient.
The address of service of the Applicant is M/s NKM Advocates, Plot 103 Buganda Road, P.O.
Box 7699, Kampala, Counsel for the Applicant.
GIVEN under the HAND and SEAL of this HONOURABLE COURT this day of
. 2007.
___________________
JUDGE
To be served on:
1. XY LTD
2. KK
DRAWN AND FILED BY:
SA.ADVOCATES
PLOT 38 WILLIAM STREET
P.O. BOX 7OO75
KAMPALA

138

Notice of Motion
Notice of Motion is another method by which proceedings may be commenced as prescribed by
statute. All applications to the court, save where otherwise expressly provided for under the Civil
Procedure Rules; shall be by motion and shall be heard in open court. 551
An application of a civil nature is regarded as a suit for certain matters within the law. 552
Some of the applications, which are made by this method, are for:
(a)
(b)
(c)

Judicial review
Habeas corpus
Redress for breach of fundamental human rights provisions under the constitution.

There is a general rule that where a statute 553provides for an application to the court, but does not
specify the form in which it is to be made and the rules do not expressly provide for any special
procedure, the application may usually be made by notice of motion. 554
Where an act of parliament provides that an application may be made to the court that application
may be made by Notice of Motion.555
Where a notice of motion is not signed by a judge and sealed by a court seal then this is a
fundamental defect which is incurable and hence a nullity. 556
There are conflicting decisions on the signing of notices of motion. As a rule all notices of
motion must be signed by the party or his solicitor or advocate and one of the distinguishing
features between summons and a notice of motion is that while the former must be signed and
is usually signed by a judge or some other officer of the court authorized to do so, a notice of
motion must be signed by the applicant himself or his advocate. The obvious reason is that a
summons is issued by the authority of court and regarded as a command directed by the court
concerned. But a motion is usually brought by a party seeking some form of relief or remedy
from court and must be therefore signed by him in same way as grounds of appeal or a plaint. 557
A notice of motion signed by the Registrar instead of the applicant himself or his counsel was an
irregularity and incurably defective.558
The grounds of application have to be set out in the notice of motion. 559

551

O.52 r 1
Engola vs Acire [1992-93] HCB 233
553
S.197 Registration of Titles Act Cap 230
554
St. Benoist Plantations Ltd. vs. Jean Emile Adrien Felix [1954] 21 EACA 105
555
Ibid
556
Kaur vs. City Auction Mart Ltd. [1967] EA 108 Contrast Joy Kaigana vs Dabo Boubou [1986] HCB
59 Although in practice the notice of motion carries a signature of the judge and the seal of the court,
these are not legal requirements and an omission does not render an application fatal. The application
was properly before court as it was duly signed by the applicants advocate who was moving the court to
hear the application.
557
Bazira Construction & Engineering Works Ltd vs E.A. Steel Corporation [1992-1993] HCB 220
Masaba vs. Republic [1967] EA 488
558
Ibid
559
O.52 r 3
552

139

If the notice of motion does not contain the grounds of the application then it is fatally
defective.560 Where counsel intends to object to a notice of motion he should raise it as a
preliminary objection and not as a general address to court in response to the other counsels
submissions.561
This could be contrasted with the decision in one case, where court noted that since notice of
motion states that the grounds of the application sufficiently appears in the affidavit filed with the
notice of motion by that reference the contents of affidavit were incorporated in the notice of
motion.562
No affidavit is necessary where the application rests on a matter of law.563
An application by Notice of Motion is granted on evidence set out by the affidavit. Such copy of
affidavit must be served with the motion as the motion on its own cannot be complete without the
affidavit.564

560

Mugalura Mikiibi vs. Colline Hotel Ltd. [1984] HCB 35 Sebamala vs. Namirembe Diocese [1988-90]
HCB 248
561
Ibid
562
Notay Engineering Industries vs. Superior Construction and Engineering Ltd. HCCS No. 702 of 1989
(unreported) Castelino vs. Rodrigues [1972] EA 233
563
Ondogkara vs. Kamada [1968] EA 210 [1971] HCB 156
564
Kaigana vs. Boubou [1986] HCB 59

140

Figure 8:

Copy of Notice of Motion

THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
COMMERCIAL COURT
MISC.APPLICATION NO. . OF 2005
Arising from Civil Suit No. 165 of 2005

TROLLEYCOM LIMITED ..APPLICANT/PLAINTIFF

VERSUS
NIKOM SYSTEMS LIMITED RESPONDENT/DEFENDANT

NOTICE OF MOTION
(Under S.64 (b) & (e) CPA CAP 71, O.48 rr 1,2,3 CPR)
TAKE NOTICE that this Honourable Court will be moved on the day of ..2005 at
Oclock in the fore/afternoon or so soon thereafter as Counsel for the Applicant can be heard on an
application for orders that: An Order doth issue freezing the Bank Account of the respondent Account No. Cairo
International Bank before determination of Miscellaneous Application No. pending before
court.
Costs of this application be provided for.
THE GROUNDS OF THIS APPLICATION are contained in the affidavit of BATALA ADAM attached
hereto, the grounds of which are briefly that:
(a) The respondent received a cheque of US Dollars $46000. which is the final payment for work done
by the applicant.
(b) The Respondent is in the process of withdrawing all the proceeds from the account which the subject
of Civil Suit No. 165 of 2005, pending in this Honourable Court from the local limits of the Court.
(c) Civil Suit No. 165 of 2005 will be rendered a nugatory if the said bank account on which the cheque
is deposited is not frozen to stop the respondents directors from withdrawing all the money before
Judgement.
(d) That the respondent company has no other known assets within the Jurisdiction.
(e) That the respondents directors are planning to leave the jurisdiction once the cheque matures and the
proceeds are received.

(f) It is just and equitable that an order of attachment by way of freezing the respondents bank account
before Judgement is granted to avert the impending sale and/or removal thereof.

141

DATED at Kampala this ..day of ..2005.

___________________________________
M/s S.A Advocates
(COUNSEL FOR THE APPLICANT)
Lodged at the Registry this .day of 2005.

______________________________
REGISTRAR/DEPUTY REGISTRAR
Drawn & filed by:
M/s Bakkidde, Hannan & Ssekaana Advocates
Plot 38, William Street

P.O.Box 8911
KAMPALA

142

PETITION
A petition is a method by which proceedings are commenced as prescribed by statute, statutory
instrument or rules. The most common types of petitions are those related to company
matters,565matrimonial proceeding,566 Constitutional Matters567 and of recent election
challenges.568 They are contained in the various Acts and rules.
Copy of Petition

Figure 9:

THE REPUBLIC OF UGANDA

IN THE CHIEF MAGISTRATES COURT OF MENGO AT MENGO
ADMINISTRATION CAUSE NO. . OF 2001
IN THE MATTER OF THE ESTATE OF PK FORMERLY OF NAKULABYE, KAMPALA
DISTRICT
AND
IN THE MATTER OF APPLICATION FOR LETTERS OF ADMINISTRATION FOR THE
ESTATE OF THE AFORESAID BY CM MOTHER AND WIFE OF THE DECEASED.

PETITION
The humble petition of CM and HM C/o M/s S.AAdvocates Plot 38 William Street, P.O. Box
70075 Kampala showeth:1. That your Petitioners are adult female Uganda citizens of sound mind.
2. That your Petitioners are mother and wife of the deceased person respectively.
3. That the late PK died of natural death on 4 th December, 2000 the Local Councils letter and
Certificate of death are attached hereto and marked A in proof of the said death.
4. The deceased person who was a citizen of Uganda was domiciled in Uganda at the time of his
death and resident at Tree Shadow LCI Zone 9 Nakulabye Parish Rubaga Division Kampala
District.
5. That at the time of his death the deceased left no Will.
6. The late PK is survived by one child to wit.
NAME

RELATIONSHIP WITH THE DECEASED

Edward Kiwana

Son 12 years

7. That at the time of his death the deceased had personal belongings.
565

O.38 r 3
Divorce Act, Succession Act
567
Article 137 of the Constitution
568
Article 104 (1) of the Constitution, S 59 of Presidential elections Act, S.60 Parliamentary Election Act
S.138, 168 of Local Government Act and all the Election Petition Rules made thereunder)
566

143

8. That your Petitioners believe that the total value of the deceaseds estate is likely to be
Shillings (Shs.100,000/=).
9. That your humble Petitioners pray that the Letters of Administration of the Estate of the said
PK be granted to the mother CM and wife HM.
10. That we CM and HM as your Petitioners do hereby solemnly and sincerely declare that
whatever is stated herein is true to the best of our knowledge.
Declared at Kampala this
day of .. 2001
by the said CM
HM

_________________
DECLARANT
_________________
DECLARANT

We CM and HM do hereby solemnly and sincerely declare that we undertake well and faithfully,
to administer the property of the deceased and make a full inventory of the same of this
Honourable Court within six months from date of the grant of the Letters of Administration or
within such further times as the Court may appoint from time to time and also render to this
Honourable Court a true account of the said property.
Declared at Kampala this
day of .. 2001
by the said CM
HM

_________________
DECLARANT
_________________
DECLARANT

BEFORE ME:
____________________________
A COMMISSIONER FOR OATHS
DRAWN AND FILED BY:
NKM ADVOCATES
PLOT 103 BUGANDA ROAD
P.O. BOX 7699
KAMPALA

Figure :

144

THE REPUBLIC OF UGANDA

IN THE HIGHS COURT OF UGANDA AT KAMPALA
DIVORCE/MATRIMONIAL CAUSE NO. OF 2004.
NDAGGA ...... PETITIONER
VERSUS
NDAGGA N.C ..

RESPONDENT

PETITION
THE HUMBLE PETITIONOF NDAGGA JAFFER JELLO showeth: 1.

That your Petitioner is a male adult Uganda of sound mind, resident of Kampala District Uganda
and his address of service for purposes of this cause is c/o M/s Ssekaana Advocates Plot 38
William, P.O.Box 8911 Kampala.

2.

That the Respondent is a female adult, Ugandan respectively and formerly resident of Luzira and
now of United States of America. Counsel for the Petitioner undertakes to effect service of Court
process on the respondent through her family or in the USA.

3.

That your Petitioner and the Respondent profess the Islamic faith respectively.

4.

That on the 15th day of November 1998 your Petitioner married the Respondent at Kibuli mosque
(See Annexture A).

5.

That in consequence whereof, the Petitioner and the Respondent were pronounced husband and
wife and lived and cohabited together as such in Luzira.

6.

That the said marriage the Petitioner and the Respondent were blessed with one issue by the
names of Nakiyemba Shamillah Shina born on the 13th day of February 1999.

7.

That sometime in or about 2003, the Respondent committed adultery and deserted the petitioner in
April 2004

8.

That the respondent now stays in the United States of America and she is no longer interested in
our marriage.

9.

That your Petitioner has not condoned, connived or colluded with the Respondent to which he will
seek damages thereof.

10. That the Petitioner shall aver that the Respondents conduct and or change of character departure
from Uganda has caused an irretrievable break down of marriage.
11. That the Petitioner shall aver that the Respondent acts have as a result subjected to him untold
embarrassment hence occasioning him damages thereof.
WHEREFORE your Petitioner humbly prays for a decree.
a)

That the marriage solemnized between the Petitioner and the Respondent be dissolved.

145

b) That custody of the issue Nakiyemba Shamillah Shina be granted to the Petitioner.
c)

That the Respondent pays costs and any costs incidental to this petition.

d) That the Petitioner may have such further and other relief(s) in the premises as to the
Honourable Court may deem fit.
DATED at Kampala this .. day of ...2004.
________________________________________

M/s Ssekaana Advocates

(COUNSEL FOR THE PETITIONER)

VERIFICATION
I CERTIFY, that paragraphs 1 11 as herein above are true and correct to the best of my knowledge.
____________
PETITIONER
BEFORE ME:
_______________________________
A COMMISSIONER FOR OATHS
Drawn & Filed by:
S.A. Advocates,

Plot 38, William Street

P.O.Box 8911,

Kampala.

146

CHAPTER TEN
FILING OF COURT PROCESS
The Act provides that nothing shall operate to give any court jurisdiction over suits the amount o
value of the subject matter of which exceeds the pecuniary limits, if any, of its ordinary
jurisdiction.569
Except as provided in this Act or the Magistrates Act, suits and proceedings of civil nature shall
be instituted in the High Court.570
Registry
The registry is the administrative center for the control of all records, documents and information
required by the court for the operation of its work. It is a place where active records of court are
managed.
The main duties of the registry staff are to:
Receive all documents (Pleadings and mail):
Maintain records:
Dispatch and avail information whenever it is needed:
Maintain the records through the file cycle of a case:
Prepare under the direction of the Registrar cause lists for the sessions:
Serve summons and notices to litigants;
Monitor the movement of the files allocated to a judge/magistrate;
Magistrates Court
Every Magistrates 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 magistrates court shall be instituted in the court of the lowest grade competent to
try and determine it.571This should also be read hand in hand with S.207 which vests pecuniary
jurisdiction in Magistrate courts.
In every magisterial area there must be a registry in which the person who wishes to file a case
can institute a suit or can file in that court.
The filing in a magistrate court is done in such court that has a pecuniary jurisdiction. 572
There shall be appointed for every magistrates court a fit and proper person to be or to act as
chief registrar or registrar of that court. 573
Filing of Court Process
Commencement after pecuniary jurisdiction Filing in the High Court
The filing in the high Court is not so much different from filing in the Magistrate Court.
569

S.4 of the Civil Procedure Act

S.11 1bid
571
S.208 of the Magistrates Courts Act
572
S.207 ibid
573
S.8 ibid
570

147

Under the rules every suit in the high court may be instituted at the central office of that court
situated in Kampala or in a district registry.574
At the High Court in Kampala there are five registries where cases are filed depending on the
nature and subject matter namely;
1.
2.
3.
4.
5.

Commercial Division Registry

Civil Division Registry
Family Division Registry
Land Division Registry
Criminal Registry

Commercial Division Registry

Before the sub division of the High Court there was one General Registry, after the division and
relocation of Commercial Court, a separate registry was created to handle all commercial
transaction cases.
The Commercial court was established on 1 st July 1996 as the Commercial Division of the High
Court of Uganda with the objective of delivering to the commercial community an efficient,
expeditious and cost effective mode of adjudicating disputes that affect directly and significantly
the economic, commercial and financial life in Uganda.
It is the nature of the transaction that determines whether it is a matter that should be filed at the
Commercial Court. The Constitution Commercial court (Practice) Direction 1998 (of Uganda)
defines a commercial dispute to mean:
Any relationship of a commercial or business nature, whether contractual or not and
includes, but is not limited to the supply or exchange of goods and services, banking and
negotiable instruments, international credit and similar financial services, insurance and
reinsurance, the operation of stock& foreign exchange markets, the carriage of goods,
foreign judgements and commercial arbitration questions.
In acknowledgement of the fact that there cannot be decisive definition of a commercial dispute,
Direction 4(2) of the Commercial Practice Directions gives the Registrar or Judge power to
determine whether a dispute falls within the definition of a commercial dispute, regard must be
had to the subject matter, issues of fact and law likely to arise and this should properly be left
within the jurisdiction of the court.
Currently, the court is located in Crusader House in Kampala though it may relocate to its
permanent location at Nakasero in Kampala. The Court has four full time Judges, a Registrar and
assistant registrar. One of the Judges sits as the Head of Court with the ultimate authority of
assigning cases.
Family Division Registry
This is a part of the High Court registry except that it only handles Administration causes or
Family matters. Other matters that seem to be within Family Law are registered at the main
registry. This registry is also found at the High Court in Kampala.

574

O.48 r 1

148

Civil Division General Registry

All other matters that do not fall in the category of commercial and Administration causes are
filed at the main registry.
However, filing of other cases or causes at the main registry does not make it fatal, such as a
matter will only be forwarded to the proper registry.
Land Division registry
All matters related to land are filed in this registry which is found at the High court Kampala.
Other Registries
The High Court shall sit in such places as the Chief Justice may, in consultation with the Principal
Judge, appoint; and in so doing, the Chief Justice shall, as far as practicable, ensure that the High
Court is accessible to all the people.575
There are other registries at different areas where there are High court circuit courts namely;
1.
2.
3.
4.
5.
6.
7.
8.
9.

Nakawa
Jinja
Mbarara
Masaka
Fort Portal
Mbale
Gulu
Soroti
Arua

The main feature of all these courts is that they handle all matters irrespective and without
separation of cases. In all these courts there are Deputy Registrars who are in charge of filing or
where they may not be, Chief Magistrates act as Deputy Registrars.
What is received at registry?
The plaintiff or applicant or defendant/respondent may file any of the following documents as
may be provided by the appropriate procedure Plaint, Petition, Notice of Motion/Chamber
Summons, Ordinary Letter as for Revision, Written Statement of Defence, Affidavit in reply,
Answer to petition.
Any of these documents is received with an acknowledgement by stamping on the document.
Thereafter a file is opened and it is given a number and then it is duly entered or registered in
register book.
Every document that is received at the court registry is recorded on the cover of the court file in
order to avoid and check on the possible loss of documents from the court record.

575

Article 138(2) of Constitution

149

The Court clerks determine the court fees where the fees are not specifically provided in the court
fees rules which is payable instantaneously. It is imperative to note that failure to pay the proper
court fees, there is no proper suit before court and accordingly it will be struck off. 576
Where possible the plaintiff or applicant may file a reply to any of those documents.
The file is then forwarded to the Deputy Registrar either for issuance of summons or endorsement
allocation to a judge or acknowledging.
The files are then sent back by the Registrar to the registry to be given back to Advocates or
advocates clerk or litigants in person.
The same registry will receive any replies to any documents earlier filed such as, Written
Statement of Defence, Defence and Counterclaim, Reply to Petition, Affidavit in Reply, answer to
Petition.
Where possible the plaintiff or applicant may file a reply to any of those documents. After the
replies and when the pleadings are deemed to be closed, no more documents will be filed without
leave of court.
Sometimes, the Court Registry (clerks) may refuse to receive a document, which is filed out of
time without leave of court or consent of the other party upon their own volition or upon advise
or directions of the Registrar.
It should vitally be noted that any party who files documents at the court registry has an
obligation and a duty to serve the other party unless such a proceeding is intended to be ex-parte
i.e. Ex-parte applications include (Interim applications or application for substituted service)
Fixing a case for Hearing
The practice is that the parties to the suit or their advocates should apply for dates for hearing
their cases. This is usually done by taking hearing notices and asking for a date from the court.
Or alternatively any party may write to the Registrar (deputy) requesting for a date, which is later
presented to a judge. The Registrar acts for and on behalf of the judge and no person is supposed
to write directly to the judge unless otherwise.
Parties have to move court before a hearing date can be fixed. Currently the courts are passive
and do not give a hearing date especially where cases have been adjourned by consent in absence
of a judge. This is left to the parties to extract hearing notices. If one party does not desire a
hearing, the case will not be fixed for hearing.
The Court may fix the cases by calling them for mention during which period the case is fixed for
hearing.
Where non of the above steps is taken to fix the case for hearing the Court may after a reasonable
delay depending on the judge may dismiss the case for want of prosecution as under the rules 577.

576
577

UNTA Exports Ltd. vs. Customs [1970] EA 648

O.17 r 6

150

Matters are usually handled in chambers, but if there are many parties the judge may prefer to
hear the case in open Court.
When the case has been finally fixed for hearing, the High Court Registrar will prepare a cause
list of all cases, which are to appear in a week. This is done on a weekly basis and such cases are
derived from the judges diary. Such a cause list is displayed at the High Court notice board and
sometimes given to advocates at their expense.
PAYMENT OF COURT FEES
Every document filed in court in form of pleading attracts a payment of fees. The amount payable
as court fee is determined from the value of the subject matter in case of a plaint and for other
documents a fixed fee is charged. No action is filed unless the court fees have been paid. 578
Every document for or in respect of which any fee has been paid shall bear an endorsement
initialed by the judge, magistrate or other officer as showing the amount of the fee or fees so paid
and the number of the receipt recording the payment. 579
Whenever for the purposes of jurisdiction or court fees it is necessary to estimate the value of the
subject matter of a suit capable of money valuation, the plaintiff shall, in the plaint, subject to any
rules of court, fix the amount at which he or she values the subject matter of the suit; but if the
court thinks the relief sought is wrongly valued, the court shall fix the value and return the plaint
for amendment.580
Where the whole or any part of any fee prescribed for any document by the law for the time being
in force relating to court fees has not been paid, the court may, in its discretion, at any stage allow
the person by whom the fee is payable to pay the whole or part, as the case may be, of that court
fee; and upon the payment the document, in respect of which the fee is payable, shall have the
same force and effect as if the fee had been paid in the first instance. 581
The earlier position of the law was laid down in the case of Unta Exports Ltd vs Customs582:
which held that a document is not properly filed until the fees are paid. This position of the law
got prominence in the legal circles and was applied to many decisions without regard to other
relevant laws as shown herein.
Where the whole or any part of any fee prescribed for any document by the law for the time being
in force relating to court fees has not been paid, the court may in its discretion, at any stage, allow
the person by whom the fee is payable to pay the whole or part
No document in respect of which a fee is payable shall be used in any legal proceeding, unless it
has been initialled as provided in rule 4 of these rules; or unless the court is otherwise satisfied
that the proper fees in respect of the document have been paid; but if any such document is
through mistake or inadvertence received, filed or used in any court without proper for it having
been paid, the court may, if it thinks fit, order that such fees as it may direct be paid on that

578

Katuramu vs Maliya [1992-1993] HCB 161

Rule 4 of The Judicature (Court Fees, Fines and Deposits) Rules SI 13-3
580
S.11 (2) of Civil Procedure Act
581
S.97 ibid
582
[1970] EA 648 also refer to Musango vs Musango [1979] HCB 226
579

151

document; and upon the fees being paid, the document and every proceeding relative to it, shall
be as valid as if the proper fees had been paid in the first instance. 583
This rule was followed in the of case of Yese Ruzambira vs Kimbowa Builders and Construction
Ltd584; and court noted that;
Non payment of court fees could not affect a judgement entered by consent and that the
remedy for non-payment of fees was to rely on rule 6 of the Court Fees, Fines and Deposits
Rules to order the defaulting party to pay the necessary fees to the court
The Court of Appeal relying on the above decision noted; 585
that 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. The remedy for non
payment of Court fees would have been invocation of Rule 6 of the Court Fees, Fines and
Deposits Rules to order a defaulting party to pay the necessary fees to the court.
Where the court detects non-payment of fees it may make the necessary orders and in default of
such an order it may strike out the document. The court can dismiss a suit for no payment of court
fees or charges.586
In case of election petitions the fees payable is set out in the rules made under the different
elections Act;
In case of Presidential Elections the petitioner or his or her advocate is supposed to pay twenty
currency points (400.000/=).587And in case of a respondent a fee of five currency points
(100,000/=).588
In case of Parliamentary and Local council elections the petitioner is supposed to pay a fee of
150.000/=.589And in case of a respondent a fee of 50.000/= shillings. 590
It should be noted that different legislations prescribe different fees depending in the nature of
proceedings and it is always advisable to verity from the rules made under the Act under which
you are invoking the jurisdiction of court.

583

Rule 6 of The Judicature (Court Fees, Fines and Deposits) Rules

[1976] HCB 278 Musiguzi Garuga vs Amama Mbabazi Election Petition Noof 2001 at Mbarara.
585
Lawrence Muwanga vs Stephen Kyeyune C.A.CA No. 20 of 2000 which was upheld on Appeal to
Supreme Court vide S.C.C.A No.12 of 2001 on 19th June 2002
586
O.9 r 16
587
Rule 5(3) of The Presidential Elections (Election Petitions) Rules SI 13 of 2001
588
Rule 8(3) ibid
589
Rule 5(3) of Parliamentary Elections (Election Petitions) Rules SI 141-2
590
Rule 8(3) (b) ibid
584

152

CHAPTER ELEVEN
JUDGMENT BEFORE TRIAL
Default Judgments
Where a defendant, having been served with a plaint and summons, fails to file a defence within a
period specified, judgment in default may be entered against the defendant where the claim is
liquidated.591
In the absence of entry of a default judgment by the plaintiff, the defendant may with consent of
the plaintiff or leave of court apply for late filing.
Judgment in default is often referred to as an over the counter Judgment, as it is obtained
without a hearing. The entry of a default Judgment is the function of the Registrar.592
In a suit proceeding in a registry all formal steps preliminary to the trial and all interlocutory
applications shall, in absence of a judge, be made and taken before the district registrar: an when
a suit is ready for trial it may be set down for hearing before a judge sitting at the place of the
registry.593
The two procedural requirements which must be satisfied before judgment may be entered are:(a)

The plaint and summons must have been properly served, and there must be proof of
service. Service must be proved by an affidavit of service 594 or by endorsement of
acknowledgement of service on summons by the defendant or defendants counsel.

(b)

The defendant must have failed to file a defence within the requisite period.
Application for Judgment Ex-parte

Figure 10

REF: NKM/CS/190
21st November, 2000
The Registrar (Civil)
High Court of Uganda
KAMPALA
Your Worship,
RE:

HCCS NO. 612 OF 1999

XX

591

O.9 r6
O.50 r 2
593
O.48 r 6
594
O.9 r 5 Kanji Naran vs. Velji Ramji (1954) 21 EACA 20
592

153

VERSUS
YY
APPLICATION FOR JUDGMENT UPON A LIQUIDATED DEMAND UNDER O.9 R
6 CPR
Reference is made to the above suit in which summons to file a defence with a plaint attached
were served on the defendant on the 15 th day of June 1999. An affidavit in proof and verification
of service was filed herein on 29th March, 2000.
As the defendant has failed to file a defence within the prescribed fifteen days from the date of
service as above and having complied with order 9 r 5 CPR we request and pray as hereunder:That judgment under O.9 r 4 of the CPR for the liquidated demand in the plaint under paragraph
6(a) in the amount of Shillings Fourteen million, four hundred eighty thousand
(Shs.14,480,000/=) together with interest of Court rate of 6% amount to Shillings Eight hundred
sixty eight thousand, eight hundred (Shs. 868,800/=) totaling to Shillings Fifteen million, three
hundred forty eight thousand eight hundred (Shs.15,348,800/=) be entered against the defendant.
Dated at Kampala this day of 2000
_______________________________________
NKM ADVOCATES
COUNSEL FOR THE PLAINTIFF.
Judgment for the liquidated demand is PASSED and ENTERED as prayed under O.9 r 6 of the
CPR in the amount of Shillings Fourteen million, four hundred eighty thousand
(Shs.14,480,000/=) together with interest of Court rate of 6% amounting to Shillings Eight
hundred sixty eight thousand, eight hundred (Shs. 868,800/=) totaling to Shillings Fifteen million,
three hundred forty eight thousand eight hundred (Shs.15,348,800/=) this .. day of
. 2000 under my HAND and SEAL of this Honourable Court.

___________________
REGISTRAR
DRAWN AND FILED BY:
NKM ADVOCATES
PLOT 38 WILLIAM STREET
P O BOX 7699
KAMPALA
Where there are several defendants and not all of whom are in default of defence, the plaintiffs
cause of action will be determined by whether his claim against the defendant in default is
savable from his claim against other defendants. 595 If it is, he may apply for Judgment against the
one in default and proceed with his action against the others. If not, when the action is set down
for trial against those others, the plaintiff may set it down on motion for Judgment against the
defendant in default.
595

O.9 r9 O.9 r 7

154

Multiple Defendants
Judgment against one does not stop claim against other where the plaintiff sues several
defendants in the same action, he may enter Judgment against any defendant who has failed to
file a defence.
The position is the same where some defendants have been served with summons and some have
not been served. The plaintiff may proceed to get Judgment against any of served defendant who
has not filed a defence and leave action against the others in abeyance for the time being.
Does it matter where liability is joint or several
No, it is irrelevant whether the liability of the defendants is joint or joint and several. However,
the plaintiff cannot get paid twice for the same debt irrespective of the number of default
Judgments he may enter, so long as the whole or part of the debt remains unsatisfied the plaintiff
is entitled to go on and obtain Judgment against any of the defendants. 596
Claims in the alternative
If the plaintiffs claim is against one or two defendants in the alternative such as agent and
principal, he must make his choice before entering Judgment by default.
Once a plaintiff enters Judgement against one defendant, he is barred from proceeding against the
other.597
The defendant disputes the jurisdiction
It would seem that if the defendant disputes the jurisdiction of the court to entertain the action and
has applied for stay of proceedings for that reason, entry of Judgement in default by the plaintiff
prior to the determination of the defendants application would amount to an abuse of the process
of the court and would be set aside for irregularity.598
Liquidated demand
Where the plaint is drawn claiming a liquidated demand and the defendant fails to file a defence,
the court may, subject to provisions of rule of rule 5, pass judgment for any sum claimed in the
plaint together with interest at the rate specified (if any), or if no rate be specified, at the rate of
eight per centum per annum to the date of Judgment and costs. 599
Judgement under this rule is subject to the conditions under the same order.600
What is a liquidated demand?
Must be capable of calculation. A liquidated demand is a claim for a specific sum of money. If
the demand is for any amount which has not already been calculated but is merely a matter of
arithmetic, the demand is still for a liquidated. A claim for unliquidated damage is not a
596

Pim Bros vs. Coyle [1903] 2 KB 457

Morel vs. Earl of Westmorland [1903] 1 KB 64
598
Bankers Trust Co. vs. Abdul Gatif Galadan [1987] QB 222
599
O.9 r 6
600
Korutaro vs. Makairu [1975] HCB 215
597

155

liquidated demand because the quantum of the claim requires judicial assessment beyond mere
arithmetical calculation.601
Liquidated demands and penalty clause
If a contract stipulates the payment of specified sum by way of damages in the event of a breach
of the contract, a claim for a specified sum amount to liquidated damages if the sum represents a
genuine pre-estimate of the damages which would probably have arisen in any event of breach.
Judgment figure
What if the defendant has partly paid.
The amount for which Judgment is entered should be adjusted to take into account payments
made by the defendant since the date of issue of summons. If this is not done, the defendant is
entitled to have the Judgment set aside unless the plaintiff corrects the error.602
What if debt paid in full after summons but before Judgment
In such circumstances where the whole debt had been paid prior to Judgment, Judgment should
be entered for costs and interest (if any) only.603
When Judgment is entered with arithmetical error
If the amount for which judgment is entered in default is too much because of administrative slip
on the part of court or if the plaintiff enters Judgment for too little, the court may on application
or on its own motion amend the Judgment.604
When the plaintiff who has not made effort to correct Judgment for too little amount cannot sue
again for the short fall since the matter is res judicata. What he can do is apply to have Judgment
set aside on the grounds of his own mistake.
Unliquidated Demand
Where the plaint is drawn with a claim for pecuniary damages only for detention of goods with or
without a claim for pecuniary damages if they fail to file a defence, an interlocutory Judgment
will be entered and suit is set down for assessment of the value of goods and damages. 605
Mixed claims
When a plaint is endorsed with a liquidated claim coupled with a claim for damages only, or
coupled with a claim in respect of the detention of goods (with or without a claim for damages),
the plaintiff may enter final Judgment for the liquidated demand, plus interest and costs, against
any defendant who fails to file a defence or acknowledge service, and may enter an interlocutory
Judgment as to the rest of the claim.
601

O.9 r 8 Knight vs. Abbott (1883) 10 QBD 11

Muir vs. Jenks [1913] 2 KB 412 Hughes vs. Justin [1894] 1 QB 667 Craigmyle vs. Inchcape [1942] 1
CH 394 Bolt & Nut Co. (Tipton) Ltd. vs. Rowlands, Nicholls & Co. Ltd. [1964] 1 QB 10
603
Hugh vs. Justine [1894] 1 QB 667
604
S.99 of Civil Procedure Act
605
O.9 r 8 Sekitto vs. Nsambu [1987] HCB 50
602

156

Judgment on admissions
Where sufficient admissions are made by the defendant, his defence or otherwise, the plaintiff
may apply for such Judgment or orders as from those admissions he may be entitled to, without
waiting for the trial606and court may give such Judgment or make such orders on such application
as it thinks just.607 Such application may also be made after the action is set down for hearing or
for trial.608
When admissions of fact have been made in the pleadings or otherwise, any party may at any
stage of the action apply to the court for such Judgment as upon such admissions he may be
entitled to. Court has wide discretion to give judgement for relief prayed for by a party if the
opposite party admits it, such admission being unequivocal either by pleading or
letter.609Judgement on admission may be entered on the basis of letters written without
prejudice, once they such letters are construed as an agreement between the parties. 610
Dismissal for Want of Prosecution
If the plaintiff does not within eight weeks from the delivery of any defence, or where a
counterclaim is pleaded, then within 10 weeks from delivery thereof, set down the suit for
hearing, then the defendant may either set down the suit for hearing or apply to the court to
dismiss the suit for want of prosecution and hearing of such application the court orders the suit
to be dismissed accordingly, or may make such other order and on such other terms as the court
may deem just.611
It was also established in the leading case of Birkett vs James612that there are two broad categories
of cases, which may be dismissed for want of prosecution.
(a)

Cases in which there has been disobedience to a peremptory order of the court, or
conduct amounting to an abuse of process of the court.

(b)

Cases in which there has been inordinate delay and inexcusable delay on the part of the
plaintiff or of his legal advisers, and where such delay will give rise to a substantial risk
that it will not be possible to have a fair trial of the issues in the action or that it is likely
to cause serious prejudice to the defendant.

In addition, while expounding on the principle in above cited case, it was noted that under its
inherent powers, court would dismiss a suit for want of prosecution if; 613
(a)

There was inordinate delay;

(b)

The delay was inexcusable; even if when credible excuse is made out;

606

O.13 r 6 Pan African Insurance Co. vs. Uganda Airlines [1985] HCB 53 Devji vs. Jinabhai (1934) 1
EACA 87
607
Guinness PLC vs. Saunders [1990] 1 ALLER 652
608
Smith vs. Davies (1884) 28 CHD 650
609
Magala vs Sempangi [1994] 1 KALR 93
610
East African Underwriters vs Civil Aviation Authority CACA No.8 of 2002
611
O.17 r 5
612
[1978] AC 297 P 318 approving Allen vs. Sir Alfred Mc Alpine and Sons Ltd. [1968] 1 ALL.ER 543
613
O.17 r 6 Kibirige vs. Nkalubo [1970] HCB 199 Agnes Nanfuka Kalyango &15 Others vs Attorney
General &Masaka District Administration CACA 64 of 2000 decided in 2004

157

(c)

The defendant is likely to be seriously prejudiced by the delay;

(d)

The balance of justice demands it.

Once an action has been dismissed for want of prosecution, the plaintiffs only remedies are an
appeal against the order614or commencement of a fresh action within the relevant limitation
period.
Dismissal for disobedience to peremptory Court Orders
It is imperative to note that the time limits laid down under the rules of court are intended to
regulate the progress of litigation, to encourage the resolution of disputes, and resolve disputed
issues as speedily as possible, but the time table for the various steps to be taken in proceeding
can be, and very frequently is, extended by agreement between the parties 615or waived by them,
and the court may on such terms as it thinks just, by order extend or abridge the period within
which a person is required or authorised by the rules, or any judgment, order of direction to do
any act in any proceedings.616
There are some orders in the Civil Procedure Rules whereby a party may obtain Judgment on
account of the other partys failure to comply with the requirements of the rules i.e.
(a)

Failure to file a defence.617

(b)

Default in pleadings.618

(c)

Failure to make discovery or to produce a document for inspection. 619

(d)

Failure to answer interrogatories.620

(e)

Failure to attend trial.

(f)

Failure to produce specific evidence or witnesses. 621

Peremptory orders are more usually described as unless orders. The disobedience to a
peremptory order of court is generally to be treated as contumacious conduct. 622
Such orders are best understood as orders which provide that unless a specified act is done within
time prescribed by the order, unpleasant consequences will follow.

614

Sekyaya Sebugulu vs. Daniel Katunda [1979] HCB 46

O.51 r 7
616
S.96 Civil Procedure Act O.51 r 6 cannot be used to extend time set by the statute. Re Kiwanuka [1977]
HCB 42
617
O.9 r 1
618
O.6 r30 and O.7 r 11
619
O.10 r 12, 14, 18
620
O.10 r 1
621
O.17 r 4
622
Tolbey vs. Morris [1979] 1 WLR 592, 603
615

158

There is a fundamental distinction between the case where a plaintiff disobeys a peremptory order
of the court regarding the prosecution of an action and then commences fresh proceedings within
the limitation period raising the same cause of action, and the case where the plaintiffs action has
the limitation period raising the same cause of action, and the case where the plaintiffs action has
been struck out for want of prosecution and has subsequently commences fresh proceedings
within the limitation period raising the same cause of action. In the first case, the plaintiff is in
contempt. Commencing the fresh proceedings constitutes contumacious conduct, which entitles
the court to strike out the fresh proceedings, whereas in the second case the mere failure of the
plaintiff to comply with the procedure or rules of court in the first action does not prevent him
commencing the fresh proceedings.623
The underlying principle is that peremptory orders are meant to be obeyed. 624 It is important that
breach of such orders should not be incautiously condoned or overlooked, otherwise the notion
that the court will readily allow further time would encourage those who have not troubled to
comply with its peremptory orders to apply to set aside default Judgments and other orders
striking out the action.
In non contumacious conduct, if the defaulter can clearly demonstrate that there was no intention
to ignore or flout the courts order and that the failure to obey was due to extraneous
circumstances that failure is not to be treated as contumacious or contumelious and therefore will
not disentitle the litigant to proceed with his claim or defence. 625
In addition, the court has an inherent jurisdiction to enter Judgment against a party who fails to
comply with an interlocutory order; such as an order to provide further and better particulars of
pleading.
Dismissal for abuse of process
It has been held in Grovit vs Doctor626that, in its inherent jurisdiction, the court may strike out or
stay proceedings where the inactivity of the plaintiff amounts to an abuse of process, even if the
case does not fall within the Birkett vs James627principle because, where it is evident that the
plaintiff has no intention of bringing a case for trial; the continuation of proceedings may amount
to an abuse of process and they may be dismissed.
Dismissal for delay
Under the rule,628the defendant may apply to the court to dismiss the suit if the plaintiff does not
within eight weeks from delivery of defence, or where a counterclaim is pleaded in 10 weeks.
Before deciding to dismiss or allow the application for the dismissal, the court ought to consider
whether the plaintiff or his advocate was to blame for the delay. 629
623

Rawal vs. Mombasa Hardware Ltd. [1968] EA 392, Bailey vs. Bailey [1981] 3 ALLER 495, Janor
vs. Morris [1981] 1 WLR 1196
624
Re-jokai Tea Holdings Ltd. [1992] 1 WLR 1196
625
Grand Metropolitan Nominees (Nos. 2) Co. Ltd. vs. Evans [1993] 1 ALLER 642, Pereira vs. Bean
Lands [1996] 3 ALLER 528
626
[1997] 1 WLR 640
627
Supra n
628
O.17 r 5 Musoke vs. Musoke [1988-90] HCB 98
629
Cronta vs. Afro Trade Promoters Ltd. [1978] HCB 238

159

In the alternative, the court on its own motion without notice to either party can dismiss a suit for
inordinate delay of two years.630
Dismissal of an action will only be justified if the following matters are established, first, that
there has been inordinate and inexcusable delay in the prosecution of the action on the part of the
plaintiff or his lawyers; and secondly, that such delay has given rise to a substantial risk that a fair
trial of the action will no longer be possible, or has caused serious prejudice to the defendant in
one way or another.631 Also persons could be seriously prejudiced by having an action hanging
over their heads indefinitely.632
WITHDRAWAL/DISCONTINUANCE
A plaintiff may be compelled through lack of necessary piece of evidence or for some other
adequate reason abandon his present proceedings, may desire to preserve his right to bring a fresh
suit under more favourable circumstances.
The plaintiff may at any time before the delivery of the defendants defence, or after receipt
thereof before taking any other proceeding in the suit by notice in writing wholly discontinue his
suit against all or any of the defendants or withdraw any part or parts of his alleged cause or
complaint, and there upon he shall pay such defendants costs of the suit, or if the suit be not
wholly discontinued the costs occasioned by the matter so withdrawn. 633
When a plaintiff discontinues his action, he abandons claims against the defendant. A plaintiff
who wishes to discontinue may be allowed to do so only on terms as to payment of costs.
Discontinuance does not prevent the plaintiff from commencing a fresh action based on the same
cause of action within the limitation period. 634
A plaintiff may discontinue his suit at any time before the defence is filed but no other steps have
been taken in the suit. In such circumstances, no leave of court is needed. 635
When a suit has been set down for hearing it may be withdrawn prior to the hearing by either
plaintiff or defendant upon filing a consent signed by all the parties. 636However the withdrawal of
a suit by consent under this rule does not bind parties who are not signatories to the withdrawal. 637
Where there is discontinuance without leave, all the other parties must be served with a written
notice, specifying whether the whole action is being discontinued or a part only being withdrawn.
A defendant who has been served with notice of discontinuance may lodge for taxation a bill of
costs incurred before receipt of the notice, unless the court directs otherwise. 638

630

O.17 r6
Nyiramakwere vs. Bitariho [1973] ULR 66
632
Biss vs. Lambeth, Southwark and Lewisham Area Health Authority (Teaching) [1978] 1 WLR 382 Lalji
& Sons vs. Assanali Devji [1969] EA 439. O.17 r 5 does not apply once the suit has been set down for
hearing.
633
O.25 r 1 (3) Mulondo vs. Semakula [1969] HCB 27, O.25 r 1(2) Muherya vs. Sekitoleko [1975] HCB
91at 92 Masanga vs. Buganda Saw Mills [1973] 1 ULR 130
634
O.25 r 5
635
Mulondo vs. Semakula Supra n
636
O.25 r 2 Smith vs. Wessels (1927-28) 11 KLR 51
637
Uganda Oxygen Ltd vs Jamal [1994] II KALR 5
631

160

At any later stage of the action, he can apply only to discontinue by leave, it may be a condition
for grant of leave that no subsequent action shall be brought.
If any subsequent suit shall be brought before payment of the costs of a discontinued suit upon
the same, or substantially the same, cause of action, the court may order a stay of such subsequent
suit until such costs shall have been paid.639

CHAPTER TWELVE
PRE-TRIAL AND JUDGMENT REMEDIES

638

Kalema Rhoda vs. D.A.P. C.B. HCCS No. 784 of 1990 (unreported) instead of a formal application it
would have been sufficient for counsel for the appellant to write to the registrar withdrawing the suit with a
copy to counsel for the respondent.
639
O.25 r 4

161

Nature of Interlocutory Equitable Relief/Interlocutory Injunction

Introduction (Jurisdiction)
An injunction is an order of the court directing a party to the proceedings to do or to refrain from
doing a specified act. It is granted in cases where monetary compensation would afford an
inadequate remedy to an injured party.
The High Court has power by order, whether interlocutory or final, to grant an injunction in all
cases in which it appears to the court to be just and convenient to do so to restrain any person
from doing any acts.640
In order to prevent the ends of justice from being defeated, the court if it so prescribed-grant a
temporary injunction and in case of disobedience commit the person guilty of it to prison and
order that his or her property be attached and sold; 641
Where in any suit it is proved by affidavit or otherwise(a) that any property in dispute in a suit is in danger of being wasted, damaged, or
alienated by any party to the suit, or wrongfully sold in execution of a decree: or
(b) that the defendant threatens or intends to remove or dispose of his or her property with
a view to defraud his or her creditors,
the court may by order grant a temporary injunction to restrain such act 642
Definition
An interlocutory injunction/temporary injunction is an injunction that is limited so as to apply
only until the final hearing or final determination by the court of the rights of the parties and
accordingly it issues in a form that requires that, in the absence of a subsequent order to the
contrary, it should continue up to but not beyond the final hearing of the proceedings. 643
An interlocutory injunction is derived from a pending suit and likewise there must be a cause of
action to sustain a main suit from which the application will be derived. 644 The pending suit
must be before the same court.645
The application for the interlocutory relief is not itself a cause of action as the right to
interlocutory relief is also not a cause of action itself. as Lord Diplock said. 646
A right to obtain an interlocutory injunction is not a cause of action.. It cannot stand on
its own. It is dependent upon there being a pre-existing cause of action against the
defendant arising out of an invasion, actual or threatened by him, of legal or equitable
right of the plaintiff for the enforcement of which the defendant is amenable to the
640

S.38 Judicature Act,, Oliso Emosingoit vs. E. Ibunyat and 2 others [1985] HCB 56
S.64(c) of Civil Procedure Act
642
O.41 r (1)(2)
643
Pg 437 Spry Equitable Remedies 4th Edition (1990)
644
Sugar Corporation o Uganda Ltd. vs. Muhamud Tejan HCCS No.39 of 1993 (unreported) In Re Theresa
Kaddu [1980] HCB 115
645
Nakana vs. DAPCB [1987] HCB 91
646
The Siskina [1979] AC 210 at 256 Contrast with Lord Denning in Chief Constable of Kent vs. V. [1983]
QB 34
641

162

jurisdiction of the court. The right to obtain an interlocutory injunction is merely

ancillary and incidental to the pre-existing cause of action.
Lord Mustill expounded the above principle. 647The doctrine of the Siskina, put at its highest, is
that the right to an interlocutory injunction cannot exist in isolation, but is always incidental to
and dependent on the enforcement of a substantive right, which usually although not invariably
takes the shape of cause of action
General principles for grant of interlocutory injunction
When an injunction is granted is based on some laid down principles that have been applied in
different cases.648
An injunction application will usually be granted to restrain the defendant from doing acts alleged
to be in violation of the plaintiffs legal rights.649
When deciding whether to grant an application for an interlocutory injunction the decision in
American Cyanamid vs. Ethicon Ltd. 650 Stipulates that the court should as a general rule have
regard only to the following criteria.
(a)

Is there a serious issue to be tried?

(b)

are damages an adequate remedy?

(c)

Where does the balance of convenience lie?

(d)

Are there any special factors?

These criteria should be read in the context of the principle that the discretion of the court should
not be fettered by laying down any rules which would have the effect of limiting the flexibility of
the remedy.651 As noted by Odoki J as he then was noting the basis of granting a temporary
injunction:652
(i)

The granting of a temporary injunction is an exercise of judicial discretion and the

purpose of granting it is to preserve matters in status quo until the question to be
investigated in the suit is finally disposed off.

(ii)

The conditions for the grant of an interlocutory injunction are first that the applicant must
show a prima facie case with a probability of success. Secondly, such injunction will not
normally be granted unless the applicant might otherwise suffer irreparable injury which
would not adequately be compensated or atoned for by an award of damages, thirdly if
the court is in doubt, it will decide an application on the balance of convenience.

647

Channel Tunnel Group Ltd. vs. Balfour Bealty Construction Ltd. [1993] AC 334 at 360-362
Robert Kavuma vs. M/s Hotel International S.C.C.A No. 8 of 1990 (unreported)
649
American Cyanamid Co. Ltd. vs. Ethicon Ltd. [1975] AC 396 at 405 Noormuhamed Jan Muhamed vs.
Kassamali Virji Madhani (1953) 20 EACA 8
650
[1975] AC 396
651
Hubbard vs. Vosper [1972] 2 QB 84
652
Kiyimba Kaggwa vs. Haji A. N. Katende [1985] HCB 43
648

163

Prima facie case

The applicant must show that he has a prima facie case in the pending suit with a probability of
succeeding in that case.653 The use of the term prima facie is contentious or confusing. In the
context of the exercise of a discretionary power of grant, an interlocutory injunction leads to
confusion as to the object sought to be achieved by this form of temporary relief. Moreover, to
express at the interlocutory state an opinion as to prospects of success of either party would only
be embarrassing to the judge who would ultimately try the case. 654
The word used in the locus classicus is serious issue to be tried. This seems a straightforward
yardstick in determination of such a case to allow the applicant benefit from an interlocutory
injunction. As noted by Byamugisha J. that the applicant has to satisfy court that there is a
serious question to be investigated and he has a reasonable chance of succeeding in the main
suit.655
It is open to the court to decide that there is not a serious issue to be tried if the material available
at the interlocutory hearing fails to disclose that the plaintiff has any prospect of succeeding in his
action for a permanent injunction at trial. So accordingly, a serious question to be tried can only
arise if there is evidential backing for it.
This test is not difficult to satisfy. It means that the action must not be frivolous or vexatious, and
must have some prospect of succeeding. The court at this stage should not try to resolve conflicts
of evidence on affidavits as to the facts on which the claims of either party may ultimately
depend, nor to decide difficult questions of law which call for detailed argument and mature
consideration. These are matters to be dealt with at the trial.
Thus, unless the court takes the view that the claim has no real prospect of succeeding, it should
go on to consider the balance of convenience and nature of injury or damages.
Irreparable injury/damages
If the applicant is to suffer irreparable injury then an injunction ought to be granted. 656 Irreparable
injury does not mean that there must not be physical possibility of repairing injury, but means that
the injury must be substantial or material one, that is, one that cannot be adequately compensated
for in damages.657

As Lord Diplock explained;

The court should first consider whether, if the plaintiff were to succeed at the trial in
establishing his right to a permanent injunction, he would be adequately compensated by
an award of damages for the loss he would have sustained as a result of the defendants
653

Sugar Corporation of Uganda Ltd. vs. Muhamed Tejani Supra n The court expressed disapproval of
the requirement that the applicant must show a good case. Kiyimba-Kaggwa vs. Katende Supra n
654
American Cyanamid vs. Ethicon Ltd. Supra n at pg 410 D
655
Daniel Mukwaya vs. Administrator General HCCS 630 of 1993 [1993]IV KALR 1
656
Giella vs Cassman Brown &Co.[1973]EA 358
657
Kiyimba Kaggwa vs. Haji N. Katende Supra n, Tonny Wasswa vs. Joseph Kakooza [1987] HCB 79
Nitco Ltd. vs. Hope Nyakairu [1992-93] HCB 135

164

continuing to do what was sought to be enjoined between the time of application and the
time of the trial. If the damages in the measure recoverable at common law would be an
adequate remedy and the defendant would be in a financial position to pay them, no
interlocutory injunction should be granted, however strong the plaintiffs claim appeared
at this stage.658
In addition, if, on the other hand, damages would not provide an adequate remedy for the plaintiff
in the event of his succeeding at the trial, the court should then consider whether, on the contrary
hypothesis that the defendant were to succeed at the trial in establishing his right to do that which
was sought to be enjoined, he would be adequately compensated under the plaintiffs undertaking
as to damages for the loss he would have sustained by being prevented from doing so between the
time of application and the time of trial. If damages in the measure recoverable under such an
undertaking would be an adequate remedy and the plaintiff would be in a financial position to pay
them, there would be no reason on this ground to refuse an interlocutory application.
Damages an adequate but no a complete remedy
Save in the simplest cases, the decision to grant or refuse an interlocutory injunction will cause to
whichever party is unsuccessful on the application some disadvantages which his ultimate
success at the trial may show he ought to have been spared. Such disadvantage may be such that
the recovery of damages to which he would be entitled either in the action or under the plaintiffs
undertaking would not be sufficient to compensate him fully for all of them.
The extent to which the disadvantages to each party would be incapable of being compensated in
damages in the event of his succeeding at the trial is always a significant factor in assessing
where the balance of convenience lies.
Damages will not be adequate in this context where:
(i)
(ii)
(iii)
(iv)

The defendant would be unable to pay them;

The damage is non pecuniary, as in case of many actions for nuisance;
The harm complained of is irreparable, for example loss of right to vote;
The quantum of damages would be difficult to assess i.e. loss of goodwill.

Balance of convenience
Another factor to consider before the grant of an interlocutory injunction is the balance of
convenience.
That the balance of convenience is the phrase which, of course, is always used in this
type of application. It is, if I may say so, useful shorthand but in truth, the balance
that one is seeking to make is more fundamental, more weighty, than mere convenience. I
think that it is quite clear from both cases that although the phrase may well be
substantially less elegant, the balance of the risk of doing an injustice better describes
the process involved.659
Sir John Donaldson MR. expanded on the same theme; 660

658

American Cyanamid Co. vs. Ethicon Ltd. Supra n

Sir Robert Meggary quoted in Cayne vs. Global Natural Resouces PLC [1984] 1 ALLER 225 at 237
660
Francome vs. Mirror Group Newspapers [1984] 1 WLR 892 at 898
659

165

I stress, once again, that we are not at this stage concerned to determine the rights of
the parties. Our duty is to make such orders, if any as are appropriate pending the trial
of the action. it is sometimes said that this involves a weighing of the balance of
convenience. This is an unfortunate expression. Our business is justice, not
convenience. We can and must disregard fanciful claims by either party. Subject to that,
we must contemplate the possibility that either party may succeed and must do our best
to ensure that nothing occurs pending the trial which prejudice his rights. Since the
parties are usually asserting wholly inconsistent claims, this is difficult, but we have to
do our best. In so doing we are seeking a balance of justice, not convenience.
Status Quo
If other factors are equally balanced, it is a counsel of prudence to take such measures that are
calculated to preserve the status quo.
Status quo means simply the existing state of things existing before a particular point of time.
Existing when? Before what point in time?
The answer may be different i.e. existing state of things at the date when the defendant did the
act, or the first act which alleged to have been wrongful; or the date when the plaintiff first
learned of that act; or the date when he issued summons. So accordingly the relevant point of
time for purposes of the status quo may well vary in different cases.
The main purpose of granting a temporary injunction is to maintain the status quo and in
determining whether or not to maintain the status quo other circumstances had to be taken into
consideration.661
Where the status quo has changed then it is doubtful if the interlocutory injunction will serve any
purpose as it may mean preserving the illegality or the breach or the wrongful act. 662 Unless court
can clearly reverse what has already been done before hearing the matter which may sometimes
involve some hardship to innocent third parties.
It was noted in one leading case that for the purpose of deciding whether interlocutory injunction
should be granted to preserve the status quo, the status quo is the state of affairs existing during
the period immediately preceding the issue of the writ/summons and in respect of a motion for an
interlocutory injunction, the period immediately preceding the motion. Lord Diplock went on the
add:
The duration of that period since the state of affairs last changed must be more than minimal,
having regard to the total length of the relationship between the parties in respect of which the
injunction is granted; otherwise the state of affairs before the last change would be the relevant
status quo.663

661

Erisa Rainbow Musoke vs. Ahamada Kezaala [1987] HCB 81 Vincent Muyimba vs. B.W. Kapiriri
[1974] HCB 34 Daniel Mukwaya vs. Administrator General HCCS 630 of 1993 (unreported)
662
GAPCO vs. Muwanga Muhamed T/a Musa and Moses Services HCCS 84 of 1998 (unreported)
663
Garden Cottage Foods Ltd. vs. Milk Marketing Board [1984] AC 130 Thompson vs. Park [1944] 1 KB
408 Fellowes vs. Fisher [1975] 3 WLR 184 at 199

166

Some courts have attempted to make guidelines that have to be adopted on the proper analysis of
the AMERICAN CYNAMID decision: -664
a) Interlocutory injunctions are discretionary and all the facts of the case must be considered.
b) there are no fixed rules and the relief must be kept flexible.
c) the court should rarely attempt to resolve complex issues of disputed facts or law.
d) Important factors in exercising jurisdiction to grant interlocutory injunctions are whether
damages will be an adequate remedy, balance of convenience, maintaining status quo and the
strength of the partys case.
Interim injunction
An order in the nature of an interlocutory injunction, but restraining the defendant only until after
a named day or further order (usually no more than few days.) This order is granted ex-parte
pending the hearing of the main application for an interlocutory order. The rationale for this is to
ensure that the status quo does not change during the period before the application for temporary
injunction is heard. It may be granted by Registrar or Judge.
An interim injunction application is made by notice of motion and accompanied by an affidavit
which must contain the following additional matters.
(a)

The facts relied on as justifying the application being made ex-parte, showing that an
injunction is necessary and that the matter is urgent;

(b)

Details of any answer asserted (or likely to be asserted) by the defendant either to the
substantive claim to the interlocutory relief.

(c)

If the defendant learns of the hearing of the ex-parte application and decides to attend, he
may oppose the application; and where an order has been made, he may apply ex-parte
for discharge or variation before the return date for the interpartes hearing, if he can show
sufficiently cogent grounds for doing so.665

Vitiating factors
A party seeking an interlocutory injunction application is under the following duties.
(i)

Duty of Disclosure
A party is under a duty to make full and frank disclosure of all facts which are material to
the proceedings, including those facts which the defendant might have been expected to
bring forward in opposition to the injunction. Material non-disclosure by the applicant is
a ground for discharging an ex-parte injunction without any hearing on the merits of the
application.666

(ii)

Duty to apply promptly

664

Series 5 Soft Ware Ltd vs Clarke [1996] ALL.ER 853

London City Agency Ltd. vs. Lee [1970] CH 597, Manogeesingh vs. Airports Authority of Trinidad
and Tobago (1993) 43 WIR 301
666
R. vs. Kesington Income Tax Commissioners Exp. Princess Edmond de Polignac [1917] 1 KB 489 at
509
Beese vs. Wood House [1970] 1 WLR 586 at 590
665

167

An application for an ex-parte interim injunction must be made promptly, since it is of the
essence of such an injunction that it is to be issued only in cases of urgency. 667 Delay is a
relevant factor in interlocutory proceedings for injunctive relief. Vigilantibus non
dormientibus jura subvenient a plaintiff should not sleep on his rights.
(iii)

Fraud and Unclean hands

The courts will always deny the applicant an interlocutory injunction if the application
contains an element of fraud or the applicant comes to court with dirty hands. 668

Injunction against Government

As a general rule an injunction (temporary or permanent) cannot issued be against Government
under the laws of Uganda. The rationale is that government machinery should not be brought to a
halt and it should not be subjected to embarrassment. 669 Similarly, public authorities should not be
restrained from exercising their statutory duties and power unless the plaintiff has an extremely
stronger case on the merits.670
Though this is the position of the law, its giving too much protection to the Government agents
who usually act arbitrarily and if courts cannot stop any acts of violation of peoples rights then it
leads to an absurdity.
In the well-reasoned case of OSOTRACO LIMITED vs ATTORNEY GENERAL671 Honourable
Justice Egonda-Ntende held that an injunctive relief and eviction order could issue against
government. The court noted that S.14 of the Government Proceedings Act provides less
appropriate relief to be substituted for appropriate relief and this runs contrary to the principle
that justice shall be done to all irrespective of their social or economic status. Those who file
against government are denied the appropriate relief, and are thus denied justice.
If Government is in wrongful occupation of property substantive justice demands that it be
ordered to vacate. A declaratory order leaves a successful party at the mercy of Government
functionaries as to when he is to enjoy the fruits of a successful action against Government for the
declaratory order cannot be enforced.
The court has, and must be ready to exercise power to grant effective relief for a contravention of
protected constitutional right.672The rationale for this holding was based on the reasoning in an
Indian case which stated;673
No legal or political system today can place the State above the law as it is unjust and
unfair for a citizen to be deprived of his property illegally by negligent acts of officers of
the state without any remedy. The modern social thinking of progressive societies and the
667

Bukenya vs. Administrator General [1990-91] KALR 52 In an urgent matter, the injunction can be
granted during court vacation Societie Francaise d applications Commercial les et Industrielles sarl vs.
Electronic Concepts Ltd. [1976] 1 WLR 51 at 56 Legg vs. Inner London Education Authority [1972] 1
WLR 1245 at 1259
668
Hubbard vs. Vosper [1972] 2 QB 84 at 101 Woollerton and Wilson vs. Constain Ltd. [1970] 1 WLR 411
669
Attorney General vs. Silver Springs Hotel SCCA No. 1 of 1989 (unreported)
670
Smith vs. Inner London Education Authority [1978] 1 ALL ER 411
671
HCCS No.1380 of 1986 (unreported) decided on 20th March-2002
672
Gairy vs Attorney General of Grenada [2000] W.L.R 779
673
Nagendra Rao and co vs State of A.P AIR 1994 SC 2663 cited in the above cases (ibid)

168

judicial approach is to do away with archaic State protection and place the State or the
Government at par with any other juristic legal entity.
Justice Egonda Ntende further cited with approval the Supreme Court decision of Byrne vs
Ireland and Attorney General [1972] IR 214 where Walsh J stated;
Where the people by the Constitution create rights against the state or impose duties
upon the State or impose duties upon the State, a remedy to enforce these must be deemed
to be available. It is as much the duty of the State to render justice against itself in favour
of citizens, as it is to administer the same between private individuals. There is nothing in
the Constitution envisaging the writing into it of a theory of immunity from suit of the
State (a state set up by the People to be governed in accordance with the provisions of
Constitution) stemming from or based upon the immunity of a personal sovereign who
was the keystone of a feudal edifice.
In other jurisdictions and more so under administrative law in an application for Judicial Review
an injunction can issue against central government ministers. As noted in one English case where
court issued an injunction to a Minister for Home office stopping him from deporting an
immigrant.674 In addition, an injunction can issue to government authority or public body if it is
acting contrary to the law or without authority from the law establishing it and especially if it is in
violation of the Constitution.
In Tanzania, the high court held that no injunction could lie against the president under Section 42
of the constitution as well as common law.675
No one is immune from interference of courts of law. In public law, an injunction may obtain as
an interlocutory injunction, against a Minister, to secure interim protection of rights. Court
therefore has inherent jurisdiction to grant a temporary injunction, even against the
government.676
While a Government, like an individual must subscribe to equality before the law, its institutional
and constitutional position attract limitations, by reason of which a court may not issue interim
injunctive orders. The question is whether or not the injunction sought, is likely to hamper the
smooth working of the Government, and cause confusion, and if it would, then the injunction
should not be issued.677
When a public body or authority has been invested by statute with discretion, an injunction
should not be granted to restrain such body from exercising discretion, unless in doing so, it has
committed intentional mistakes, acted without jurisdiction, or there is manifest mala fide.678
The court, in a proper case, issue injunctive relief against government officers. This is similar to
the coercive orders that are issued under the courts judicial review power. This relief would be
674

Vidyadhar Giraharal Chavda vs The Director of Immigration Services [1995] TLR 125 High court has
power to grant injunctive orders against the Government, its Ministers or Officials. M vs Home Office
[1994] 1 AC 377
675
Mwalimu Paul John Mhozya vs Attorney General (No.1) HCCC No.206 of 1993
676
Cotwu(T)-Ottu Union and Anor vs Hon.Iddi Simba, Minister of Industries and Trade and 7 Others High
Court Miscellaneous Civil Cause No.100 of 1999(25-05-2000) reported in The Constitutional cases Digest
by Kituo Cha Katiba
677
1bid
678
ibid

169

available not only where the officer was exceeding his authority but also where he was acting in
his ostensible authority679.
Interlocutory Injunctions and Third Parties
Interlocutory relief can have effect over and beyond the ambit of the immediate dispute. Thus, an
act in breach of an injunction by a person who was not the subject of that injunction could still
amount to contempt of court if, in carrying out the act, the person intends to impede or prejudice
the administration of justice.680
Where the injunction is oppressive, or interferes with the rights of third parties it may be
discharged. In appropriate cases, a third person who is not a party may apply to have an
injunction discharged.681
Exceptions to the rule in American Cyanamid
In certain classes of case, the Courts do not apply the American Cyanamid guidelines to the
granting of interlocutory injunction. They include:(a)

Defamation actions
It was established in Bonnard vs Perryman682that, in general, an interlocutory injunction
will not be granted in defamation action where the defendant intends to plead justification
or fair comment on a matter of public interest. It has been held that this rule has been
unaffected by American Cyanamid because of the overriding public interest in protecting
the right to free speech. In order to rely on this rule, the defendant must state in his
defence a plea of justification or fair comment and also show that the alleged defamatory
statement must not be clearly untruthful.
The rationale for this is to preserve Freedom of Speech which must continue to be
cherished as it has always been. And a rule born out of the extreme importance which the
great common law judges of the past attached to freedom of speech should not casually
be thrown aside. Where justification and fair comment are raised, the decision whether
or not there is a slander has to await trial.

(b)

Convention in restraint of trade

Convention in restraint of trade are in a special category. If they are prima-facie, valid
and there is an infringement, the court will grant the injunction. A restraint will be primafacie valid if (a) all the facts are before court, (b) the covenant is prima-facie reasonable
in ambit, area and duration. The rationale for this approach is that in many cases the trial
would not take place until sometime after the issue summons and if, on an application for
an interlocutory injunction, the merits were not considered and the injunction refused, the
effect would be to deprive the plaintiff of the benefit of the covenant only where the
plaintiffs case is an open and shut one683

679

Royal Media vs Telkom Kenya [2001] 1 EA 210

Attorney General vs. Observer: Application by Derbyshire County Council [1988] 1 ALLER 385
Attorney General vs. Newspaper Publishing, Attorney General vs. The Independent [1987] 3 ALLER 276
681
Creatanor Maritime Co. Ltd. vs. Irish marine Management Ltd. [1978] 1 WLR 966 O.41 r 4
682
[1891] 2 CH 269
680

170

(c)

Restrictive Covenants
Doherty vs Allman684 is authority to the principle that a perpetual injunction will be
granted as of course to restrain a breach of a valid negative covenant, the same rule has
been held to apply to interlocutory injunctions 685at least where there is a clear breach of
the covenant.686 In some cases where there is uncertainty as to the terms of a restrictive
covenant.

(d)

Final disposal of the action

Where the granting of a temporary injunction would dispose of the whole suit then such
injunction ought not to be granted in the interest of justice. 687
If, where the injunction remains in force the respondent would have gained his total
objective. Nothing of practical value would be left in the action and if the respondent
elected to go to trial it would be the merest academic interest to him, the other party
having already reaped all the benefits he could ever obtain from the action, then such
injunction should not be granted.
In such circumstances, it seems it would be wholly wrong for court, in effect to decide
the entire contest between the parties summarily in the plaintiffs favour on the untested
material before it. This does not present any overwhelming balance on merits in the
plaintiffs favour, or any other overriding ground for immediate injunction without trial.
If there is only a triable issue whose outcome is doubtful then that issue should be tried
and not pre-empted.688
Where the grant or refusal of an interlocutory injunction will have the practical effect of
putting an end to the action, the court should approach the case on the broad principle of
what it can do in its best endeavour to avoid injustice to either party. In such a case, the
court should bear in mind that to grant the injunction sought by the plaintiff would mean
giving him judgment in the case against the defendant without permitting the defendant
the right to trial. Accordingly, the established guidelines requiring the court to look at the
balance of convenience when deciding whether to grand or refuse an interlocutory
injunction do not apply in such a case, since, whatever the strengths of either side, the
defendant should not be preceded by the grant of an interlocutory injunction from
disputing the plaintiffs claim at a trial.689
To avoid injustice, all the circumstances of the case must be looked at, and that means
having regard to all the practical realities.

DISCHARGE OF INTERLOCUTORY INJUNCTION

683

Lawrence David Ltd. vs. Ashton [1991] 1 ALL.ER 385, Lock International Plc vs. Beswick [1989]
ALL.ER 373
684
(1878) 3 App Cas 709
685
Hampstead and Suburban Properties Ltd. vs. Diomedous [1969] 1 CH 248 at 259
686
Texaco Ltd. vs. Mulberry Filling Station Ltd. [1972] 1 WLR 814 at 831
687
Uganda Moslem Supreme Council vs. Sheik Kassim Mulumba [1980] HCB 110
688
Cayne vs. Global Natural Resources Plc [1984] 1 ALL.ER 225
689
Carey JA ibid

171

A defendant who seeks discharge of an interlocutory injunction must apply by notice of motion to
court which granted the injunction.690 Discharge may be ordered on any of the following grounds,
inter alia:
(a)

Material non-disclosure on an ex-parte application;

(b)

Plaintiffs non-observance of the terms of the grant of the injunction;

(c)

Material changes in circumstances since the grant;

(d)

That the facts do not justify the grant;

(e)

Plaintiffs failure to prosecute the substantive claim sufficiently and expeditiously;

(f)

That the effect of the injunction is oppressive, or interferes with the rights of the third
parties.691

MAREVA INJUNCTIONS AND ANTON PILLERS

Mareva injunctions
This type of discretionary interlocutory injunction, 692 which may be granted pre or post trial is
designed to prevent a defendant to an action from disposing of his assets in such a way as to
frustrate any eventual judgment made against him. 693 To ensure secrecy, the application is made
ex-parte.
A Mareva injunction binds a third party with knowledge of its existence. 694 The third party will
normally be served with the order before the defendant is served, especially if that third party has
possession of the defendants assets. Thus, an order made against a bank account has the effect of
freezing the account as soon as the bank has notice of the order. A bank which, after receiving
such notice, pays a cheque drawn on the account, will be in contempt.
Requirements
The requirements for the granting of a Mareva Injunction are:
(a)

The claim is one over which the court has jurisdiction; 695

(b)

The plaintiff has a good arguable case;696

(c)

The defendant appears to have assets within the jurisdiction; 697

690

O.41 r 4, 9
Creatanor Maritime Co. Ltd. vs. Irish Marine Management Ltd. [1978] 1 WLR 966
692
The injunction is named after the decision of the English Court of Appeal in Mareva Compania Naviera
SA vs. International Bulk Carriers [1980] 1 ALL.ER 213
693
The Rena K [1979] 1 ALL.ER 397
694
Z Ltd. vs. A-Z [1982] 1 QB 558 at 572
695
The Siskina [1979] AC 210
696
Rasu Maritina SA vs. Pertam Bangan [1978] QB 644
697
Third Chandris Shipping Corp vs. Unimarine SA [1979] 2 ALLER 972
691

172

(d)

There is a real risk that those assets will be removed from the jurisdiction or otherwise
dissipated if the injunction is not granted.698

(e)

There is real risk that if the injunction is not granted the defendant will be unwilling or
unable to satisfy the plaintiffs claim; 699and

(f)

There is a balance of convenience in favour of granting the injunctions. 700

Mareva injunction has been cited in cases in Uganda. As Karokora J as he then was noted
Mareva injunction were invoked where the property intended to be attached belonged to the
defendants respondent or where the 3 rd party was merely having custody of the defendants
property e.g. money and was not to permit the defendant to take the property from his custody
until further orders. This injunction could only be granted against a man who is based in this
country if circumstances were such that there was a danger of the assets being removed out of the
jurisdiction or otherwise dealt with so that there was a danger that if the plaintiff, got the
judgment would not be able to get if satisfied.701
ANTON PILLER ORDERS
An Anton Piller Order is a mandatory injunction, which orders a defendant to allow an
independent attorney to enter the defendants premises for the purposes of searching and seizing
documents, or property that are relevant to the plaintiffs claim. An Anton Piller injunction is a
form of discovery that can be combined with the other methods of disclosure. It is usually sought
in cases of breach of copyright or infringement of patents, but is not confined to those types of
claim.702 An essential feature of the Anton Piller is the element of surprise; the order is sought exparte so that the defendant will not have time to remove incriminating material.
This type of interlocutory relief originated from the case of Anton Piller KG vs Manufacturing
Processes Ltd.703in which a German Manufacturing company made a pre-trial exparte application
to search and seize documents in the possession of their agents who believed in supplying their
competitors with confidential manuals and information about the plaintiffs products. In ordering
the relief sought, the court, Per Omrod L J, out lined three requirements, while stating that the
grant of the order in any event subject to the discretion of the court:
(a)

The Plaintiff must show an extremely strong prima facie case on the merits;

(b)

The plaintiff must show that the defendants acts are causing serious actual or potential
harm to the plaintiffs interests;

(c)

There must be clear evidence that the defendant has in his possession incriminating
evidence or other material and that there is a serious risk that the defendant may destroy
such material before an inter partes application can be made. 704

698

Ibid

699

Etablissement Esefka International Ansalt vs. Central Bank of Nigeria [1979] 1 Lloyds Rep 445
Barclay vs. Johnson Yuill [1980] 3 ALLER 190
701
Abby Mugimu vs. Luciano Basabosa [1991] HCB 70
702
Emmanuel vs. Emmanuel [1982] 1 WLR 669
703
[1976] CH 55
704
Lord Denning in Yousuf vs. Salama [1980] 3 ALL.ER 405 regarded the defendant as untrustworthy.
Rank Film Distributors Ltd. vs. Video Information Centre [1982] AC 38
700

173

SECURITY FOR COSTS

Security for costs is basically money paid into court out of which an unsuccessful plaintiff will be
able to satisfy any eventual award of costs made against him.
In order to prevent the ends of justice from being defeated, the court may, if it is so prescribed- 705
a) issue a warrant to arrest a defendant and bring him or her before the court to
show cause why he should not give for security his or her appearance, and if the
defendant fails to comply with the any order for security commit him or her
prison.
b) direct the defendant to furnish security to produce any property belonging to him
or her and place the same at the disposal of the court or order the attachment of
any property
The court may if it deems fit order a plaintiff in any suit to give security for the payment of all
costs incurred by any defendant.706
A defendant may, at any stage of the proceedings, make an application by Chambers
Summons707to court for the plaintiff to be ordered to give security for costs in any of the
following situations:
(a)

Where the plaintiff is ordinarily resident out of the jurisdiction and has no substantial
property within the jurisdiction.708

(b)

Where the plaintiff (not being one who is suing in a representative capacity) is a plaintiff
who is suing for the benefit of some other person and there is reason to believe that he
will be unable to pay the costs of the defendant if ordered to do so.

(c)

Where the plaintiffs address is not stated in the plaint or is incorrectly stated therein;

(d)

Where the plaintiff has changed his address during the course of the proceedings, with a
view to evading the consequences of litigation.

(e)

Where a limited company is plaintiff, the court may, where there is reason to believe that
the companys assets will be insufficient to pay the defendants costs if he is successful,
require sufficient security to be given for such costs,

The main considerations to be taken in an application for security for costs are:
(i)

Whether the applicant is being put to undue expense by defending frivolous and
vexatious suit;

(ii)

That the applicant has a good defence to the suit; and

705

S.64 of Civil Procedure Act

O.26 r 1
707
O.26 r 3
708
Unidrom Ltd. vs. Kawesi & Co. Ltd. [1992] KALR 123 Rohini Damji Sidra vs Frenzy Damji Sidra
&Others SCCA No.60 of 1995
706

174

(iii)

That the applicant is likely to succeed.

Only after these factors are considered would the respondents poverty/inability to pay be
considered.709
It is significant that the impecuniosity of the plaintiff is not in itself a ground for granting security
for costs, except where the plaintiff is a limited company. Security for costs is not ordered on the
basis of full indemnity. Impecuniosity and being under liquidation of a company is a good
ground to order security for costs.710
Furthermore, even if one or more of the above grounds is satisfied, the court is not bound to make
an order for an award of security for costs, it is always at the discretion of the court. 711
The factors which the court should take into account in exercising the discretion were listed in Sir
Lindsay Parkinson and Co. Ltd. vs Triplan,712, thus
(a)
Whether the plaintiffs claim is bonafide and not a sham
(b)

Whether the plaintiff has a reasonably good prospect of success (though the court should
not normally embark upon a detailed examination of the merits of the case.)

(c)

Whether the defendant has made any admissions of the plaintiffs claim on the pleadings
or elsewhere;

(d)

Where the defendant has made any payment into court or made an open offer of payment
in settlement;

(e)

Whether the plaintiffs impecuniosity has been caused by the defendants conduct;

(f)

Whether the application for security is being made oppressively and in order to stifle a
genuine claim;

(g)

Whether there has been a delay in making the application (which should be made as early
as possible).

Security for costs may be ordered against any limited company on the ground of impecuniosity
alone.713 The relevant principles applicable for security for costs made against corporate plaintiffs
have recently been exhaustively laid by Peter Gibson L J in Keary Developments Ltd. vs Tarmac
Construction Ltd.714
The general rule is that a defendant cannot be required in respect of the costs of the plaintiff; a
party under attack is to be left free to defend himself. Exceptionally, however, security may be
709

Namboro vs. Kaala [1975] HCB 315, Ochembe vs. Sentamu [1977] HCB 193 Patel vs Patel [199293]HCB 137
710
GM Combined (U) Ltd. vs. A.K. Detergents (U) Ltd. SCCA No. 34 of 1994 (unreported)
711
Sir Lindsay Parkinson & Co. Ltd. vs. Triplan Ltd. [1973] 1 QB 609 Aeronave SPA vs. Westland
Charters Ltd. [1971] 1 ALL.ER 531 at 533Porzelack KG vs. Porcelack (UK) Ltd. [1987] 1 ALL.ER 1074
at 1077
712
Ibid
713
Pearson and Another vs. Naydler and others [1977] 1 WLR 899 at 906
714
[1995] 3 ALL.ER 534 at 539-42

175

required from a defendant in respect of a counterclaim but only if the counterclaim is more than a
defensive manoeuvre and raises issues on quite another front, outside the area of the plaintiffs
claim. In applying the general principle that no security for costs required from a defendant, the
court will decide which is the attacking and which is the defending party in an action, not only by
looking at the position of the parties on the record, but also by having regard to the substance of
the matter.715
The test is whether a defendant is simply setting up some claim by way of defence to an action
or whether he has in substance taken up the position of plaintiff 716 if the counterclaim is purely
defensive in substance, jurisdiction to order security for costs is not conferred by the mere fact
that the amount of the counterclaim is greater than the amount of the claim. 717
The court may, except as otherwise provided by law, on application made for the purpose of
registration of a foreign judgement, order a judgement creditor to find security for the costs of the
application and of any proceedings which may thereafter be brought to have the registration of
the judgement set aside.718
PAYMENTS IN COURT AND TENDER
Payment of a sum of money into court by a defendant (or by a plaintiff who is defendant to a
counterclaim) may serve two purposes:
i)

To put pressure on the plaintiff to accept a settlement, and

ii)

To protect the defendant on the issue of costs.

A defendant should consider making a payment into court if he is advised by his counsel that
there is some prospect of the Court finding in favour of the plaintiff at the trial. If the plaintiff
does eventually succeed in his action, the defendant will usually be ordered to pay the whole of
the plaintiffs costs; however by making a payment into court, the defendant will cease to be
liable for any costs incurred by the plaintiff after the payment in, provided that the amount paid in
is equal to or exceeds the amount of damages plus interest ultimately awarded to the plaintiff at
the trial.
The principle of payment into court is contained in the rules 719
Where any suit is brought to recover a debt or damages, any defendant may before or at the time
of filing his defence; or at any later time by leave of the court, pay into court a sum of money by
way of satisfaction, which shall be taken to admit the claim or cause of action in respect of which
the payment is made
Subject to the Civil Procedure Act or any other law relating to payment into court, no money or
valuables shall be deposited in court except upon the written order of the court; no money or
715

Neck vs. Taylor [1893] 1 QB 560 at 562

New Fenix Compagnie Anoyme DAssurances de Madrid vs. General Accident, Fire and Life Assurance
Corporation Ltd. [1911] 2 KB 619
717
Malpseon vs. Masini (1879) 5 QBD 1544 at 148 Hutchison Telephone (UK) Ltd. vs. Ultimate
Response Ltd. [1993] BCLC 307
718
Rule 3 of The Foreign Judgements (Reciprocal Enforcement) Rules SI 9-1
719
O.27 r 1
716

176

valuables so deposited in court on a court order shall be paid out of court except in pursuance of a
decree or other order of the court.720
Procedure for payment in
(a)

Payment must be physically lodged at the Registry of the High Court;

(b)

Notice of the payment must be given to the plaintiff and every other defendant; 721

(c)

Where two or more causes of action are joined in one action, the defendant has the
following options; but he must state clearly in his notice which option he has selected.
i)

To make a single global payment in respect of all the causes of action,

ii)

to make a single payment in respect of some only of the causes of action,

specifying which ones;

iii)

to make such individual payments in respect of each cause of action.

(d)

Where the defendant has counterclaimed, the notice must state whether the payment it
has taken the counterclaim into account;

(e)

The defendant must be given written acknowledgement of receipt of the notice by the
plaintiff within seven days of such receipt.722

Amount to pay in
In a straightforward case of a debt action, the amount, which the defendant should pay in, would
normally be reasonably clear, but in a personal injuries claim, estimation of the amount may be
extremely difficult. The aim is to pay in minimum amount within the range of general damages,
which the plaintiff is likely to recover.
The payment in should also take into account interest accruing from the date the cause of action
arose until the date of payment into court.
A defendant may also increase a payment into court at anytime without leave, in which case he
must serve a new notice of payment in on the plaintiff and any other defendants.
Acceptance of payment in
A plaintiff may accept a payment into court by giving notice to every defendant. Where the
payment in is made before trial, acceptance must be within seven 723days of the notice of payment
in where the payment in comes during trial, acceptance must be within seven days of receipt of
the notice, provided that the court has not began to give its Judgment.
720

Rule 8 of The Judicature (Court Fees, Fines and Deposit) Rules SI 13-3
O.27 r 4
722
O.27 r 7
723
O.27 r 7 Narshidas M. Mehta & Co. Ltd. vs. Baron Verheyen (1956) 2 TLR 300
721

177

The effect of acceptance of the payment in is that the action, or those parts of it covered by the
payment in, is stayed. 724 Where the acceptance is in relation to all the plaintiffs cause of action,
or where it relates to some only, but the plaintiff gives notice abandoning the others, the plaintiff
is entitled to costs up to the date of acceptance. 725
Generally, where a payment in has been accepted, the money may be paid out without leave of
the court,726but in the following cases leave of the court is required:
(a)

Where money is paid in by some but not all of the defendants; 727

(b)

Where there is a defence of tender before action; 728

(c)

Where the plaintiff is a person under disability (minor or mental patient); 729

(d)

Money paid into court under an order of the court.730

Where payment in is not accepted

Where a payment into court is refused, expressly or impliedly, and the damages and interest
eventually awarded to the plaintiff at the trial do not exceed the payment in, the court will make a
split order awarding:
(a)

Costs to the plaintiff up to the date of payment in; and

(b)

Costs of the defendant after the date of the payment in, as the costs of a trial generally in
the early stages of litigation, a split order will usually penalize the plaintiff heavily in
costs.731

Tender before action

It is a defence to a claim for a debt that the defendant tendered the amount of the debt before the
action was commenced.732
The essence of the defence is that the commencement of the action was unnecessary because the
plaintiff refused to accept the amount of the debt, which the defendant tendered, and therefore the
plaintiff should be required to pay the whole costs of the proceedings:
In order to raise the defence, the defendant must plead in his defence.
(a)

That he made tender of the amount of the debt before the action was filed; and

724

O.27 r 6(a)
O.27 r 8
726
O.27 r 5 Findlay vs. Railway Executive [1950] 2 ALLER 969, Wagman vs. Vare Motors Ltd. [1959] 1
WLR 853
727
O.27 r 8
728
O.27 r 3
729
O.27 r 11
730
O.27 r 10
731
O.27 r 6
732
O.27 r 3
725

178

(b)

That he paid into court an amount equal to, or exceeding the amount alleged to have been
tendered, and that the plaintiff was duly notified of such payment into court.

Payment to the Party

Where money is paid into court for payment to a party, it may be paid out under the direction of
the judge /court without a formal order.733
In all cases in which money is paid out of court without a formal order, the judge shall make a
note of the directions given.734
ARREST AND ATTACHMENT BEFORE JUDGMENT
In order to prevent the ends of justice from being defeated, the court may, if it is so prescribed- 735
c) direct the defendant to furnish security to produce any property belonging to him
or her and to place the same at the disposal of the or order the attachment of any
property;
e) make such other interlocutory orders as may appear to the court to be just and
convenient
Where at any stage of a suit, it is likely that the defendant with intent to delay the plaintiff, or to
avoid any process of the court, or to obstruct or delay the execution of any decree that may be
passed against him; 736
i)

has absconded or left the local limits of the jurisdiction of the court, or

ii)

is about to abscond or leave the local limits of the jurisdiction of the court; or

iii)

has disposed of or removed from the local limits of the jurisdiction of the court of his
property or any part thereof.

In addition, where the defendant is about to leave Uganda in circumstances affording a reasonable
probability that the plaintiff will or may thereby be obstructed or delayed in the execution of any
decree that may be passed against the defendant in the suit.
The court may issue a warrant to arrest the defendant and bring him before the court to show
cause why he should not furnish security for his appearance. 737
However, this remedy will not be available to any plaintiff if the case falls within the exception as
in the Act.738 Court can order the defendant if he fails to show cause, to deposit in court money or
property sufficient to satisfy the plaintiffs claim or to furnish security for his appearance at
anytime when called upon while the suit is pending.739

733

Rule 11 of Judicature (Court Fees, Fines and Deposit) rules

ibid
735
S.64 of Civil Procedure Act
736
O.40 r 1
737
O.40 r 1 Pyarali Datardini vs. Anglo American Amusement Park (1930) 4 ULR 28
738
S.12 a-d of Civil Procedure Act
739
O.40 r 2 (1)
734

179

Any defendant who fails to comply with any order under the above may be committed to prison
until the decision of the suit. However, such person shall not be detained in prison for a period
longer than six months.740
Before court could exercise its discretionary powers by ordering attachment of property before
Judgment or furnishing of security, there had to be real evidence that the defendant was about to
leave the country or to sell the property and obstruct or delay justice. 741
The plaintiff is required to specify the property required to be attached and estimated value. 742
SETTING ASIDE DEFAULT JUDGMENTS
Since the entering of a default Judgment is essentially an administrative process, there is no
investigation of the merits of the claim, and this could potentially cause injustice. 743
A default Judgment may be set aside (1) where it has been irregularly obtained, and the defendant
can show a triable issue. Where a court sets aside a regularly obtained Judgment, it may impose
terms (for example ordering the defendant to pay money into court) but where an irregularly
obtained Judgment is set aside there is no such power.
The essential difference in the approach of the courts to the setting aside of regular Judgments
from those irregularly obtained is that whereas the irregularly obtained Judgment should
generally be set aside as of right (ex-debitio justitiae) without terms, 744the regular Judgment may
or may not be set aside if it is set aside on terms.
Where Judgment has been passed ex-parte, it shall be lawful for the court to set aside or vary
such Judgment upon such terms as may be just.745
Likewise, the court has no discretion but must set aside Judgment entered by Registrar where it
appears there has been no proper service. 746 Before setting aside an ex-parte Judgment, the court
has to be satisfied not only that the defendant had some reasonable excuse for failing to appear
(file a defence) but also that there is a merit in the defence to the case. 747
Delay
A defendant who wishes to apply to set aside a default Judgment should act reasonably and
promptly, and if there is delay in making the application, he should explain in his affidavit the
reasons for such delay, the court may in its discretion reject the application.
Some of the reasons that have been accepted for delay were highlighted. 748
740

O.40 r 4
O.40 r 5 Mugimu vs. BasaBosa [1991] ULS LR 191 Potgieter vs. Stumbert [1967] EA 609
742
O.40 r 5 (2)
743
Henry Kawalya vs. J. Kinyakwazi [1975] HCB 372
744
Magon vs. Ottoman bank [1968] EA 136
745
O.9 r12
746
Wamini vs. Kirimu [1969] EA 172 O.9 r 3, Kitumba vs. Karibwire [1981] HCB 71, Korutaro vs.
Mukairu [1975] HCB 215
747
S. Kyobe Senyange vs. Naks Ltd. [1980] HCB 31 Masaka Farmers and Producers Ltd. vs. Aloysius
Tamale [1992-93] HCB 203
748
Nicholas Roussos vs. Gulam H.H. Virani SCCA No.3 of 1993 (unreported)
741

180

(a)

A mistake by an advocate though negligent may be accepted as a sufficient cause. 749

(b)

Ignorance of procedure by unrepresented defendant may amount to sufficient cause.750

(c)

Illness by a party may also constitute sufficient cause. 751

(d)

Failure to instruct an advocate is not sufficient cause to justify delay. 752

Nonetheless, the court still has a discretion to set aside Judgment even though there has been
delay so long as it is satisfied that;
(a)

No one has been prejudiced by the defendants tardiness;

(b)

Or that such prejudice as has been sustained can be cured by an appropriate order for
costs;

(c)

Or that to allow the Judgment to stand would be oppressive.

749

Shaban Din vs. Parkesh Anand (1955) 22 EACA 48

Zirabamuzale vs. Correct [1962] EA 694
751
Patel vs. Star Mineral Water and Ice Factory [1961] EA 454
752
Mitha vs. Ladak [1960] EA 1054
750

181

CHAPTER THIRTEEN
SUMMARY SUIT/SUMMARY PROCEDURE
Introduction
In times of relatively high interest rates and economic depression there may be a strong incentive
to a defendant who has cash flow problems to keep his creditor waiting rather than borrow money
to pay off the debt at a commercial rate of interest from a bank or finance house or money lender.
The problem which precipitated change
A defendant trader would take delivery of goods and then dishonour the cheque or other bill of
exchange on some spurious pretext that the goods were faulty. In general there is no defence to a
dishonoured cheque.753 The plaintiff was driven to prosecute his action against the defendant to
trial. Shortly before the case was called the defendant would offer to settle. He had achieved his
objective an interest free period of credit.
How does it work?
Trial, as a rule, must precede Judgment. Under summary procedure, instead of trial first and then
Judgment, there is Judgment at once and never a trial. 754
This order is intended to enable a plaintiff with a liquidated claim to which there is clearly no
good defence to obtain a quick and summary judgment without being necessarily kept from what
is due to him by delaying tactics of the defendant. 755This order is intended to guard against
wasting the courts time and that of the litigant on claims that are clear.
The mere right of the defendant to be indemnified by or to have a claim over against, a third party
in respect of the defendants liability to recover from a third party or from a plaintiff by way of a
counterclaim, a sum of money which does not directly reduce the liability of the defendant to the
plaintiff from obtaining a summary Judgment. 756
Scope of Summary Suit
Summary procedure is regulated by O.36 of the Civil Procedure Rules. It was extended not only
to part of a claim as well as a whole claim but also to a defendants counterclaim.
All suits where the plaintiff seeks only to recover a debt or liquidated demand payable by the
defendant, with or without interest, arising upon a contract, on a bond or contract, written for the
payment of liquidated money; or a guaranty where the claim against the principal is in respect of
the debt or liquidated amount only, on trust or upon a debt to the government for income tax.
It may also be for recovery of land, rent, mesne profits. 757
753

Fielding & Platt Ltd. vs. Selim Najjar [1969] 1 WLR 357
Symon & Co. vs. Palmers Stores (1903) Ltd. [1912] 1 KB 259 at 266
755
Zora and another vs. Ralli Brothers [1969] EA 690
756
Ibid
757
O.36 r 2 Budai Coffee hulling Factory Ltd. vs. Babumba [1963] EA 613 Maluku Inter global vs. Bank
of Uganda [1985] HCB 65
754

182

Summary Procedure is confined to actions begun by a specifically endorsed plaint. Further they
are not applicable to claims made by a plaintiff (including a defendant who counterclaims) for
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)

a libel
slander
malicious prosecution
seduction
breach of promise of marriage
allegations of fraud
probate actions
actions against the government 758

However, the government can proceed by way of summary procedure where it intends to recover
and the same order shall equally apply to it.759
Personal representatives
Proceedings may be brought against personal representatives in respect of a claim against the
estate of the deceased, but if the administration has already been completed, the most that the
plaintiff can expect to get is an order whereby he should be at liberty to sign final Judgment
against personal representatives for the sum claimed with costs, to be levied off the estate and
effects of the deceased which shall thereafter come into personal representatives hands to be
administered and a further order that the plaintiff should pay the personal representative costs of
action.
Conditions
There are some conditions which must be satisfied before summary judgment proceedings can be
applicable:
1.

A specially endorsed plaint must have been served on the defendant. This is a necessary
implication of the rule which requires that the supporting affidavit must verify the facts
upon which the application is based.

2.

The specially endorsed plaint must be supported by an affidavit 760which must

(a) Verify the facts upon which the claim is based; and
(b State that in the deponents belief, there is no defence to the claim or to the part of the
claim in respect of which the application is made.

3.

Summons must be served on the defendant Summons and affidavit with any attached
exhibits must be served on the defendant, not less than 10 (ten) clear days before the
return day.

Sadolin Paints vs. Wali Muhamed [1972] EA 395 a claim for summary Judgment for possession of
premise is competent
758
Rule 17 (2) of The Civil Procedure (Government Proceedings) Rules
759
Rule 17 (1) Ibid
760
Komiswa vs. Rwahulembe [1971] HCB 50

183

Where the affidavit is found defective, it may be cured by a supplementary affidavit. 761 Such
supplementary affidavit can only be filed in replacement with leave of court. 762
A defect in the plaint cannot be cured by a simple averment in the plaintiffs affidavit. 763
However, a plaintiff is entitled to amend the plaint once without leave prior to close of pleadings
and afterwards with leave.
One of the functions of the plaintiffs affidavit is to verify the cause of action. Such verification
may be made in general terms by reference to the plaint, 764even when the particulars have been
added by amendment.765 In other words it need not state or verify each (or any) of the particulars
contained in the plaint.
The affidavit must be made either by the plaintiff himself or someone whom he authorized to
make it.
An employee in a responsible position may depone. In such circumstances the deponent should
state that;
(a)
(b)
(c)

he is authorized by his employers to swear the affidavit, and

that it is within his knowledge that the debt was incurred
that to the best of his knowledge and belief the debt still remains unpaid.

Figure 11.

Copy of specially endorsed plaint

THE REPUBLIC OF UGANDA
IN THE CHIEF MAGISTRATES COURT OF MENGO AT MENGO
CIVIL SUIT NO. OF 1999

XYZ. .. PLAINTIFF
VERSUS
ABC CO. .. DEFENDANT
SPECIALLY ENDORSED PLAINT
(Under O.36 CPR SUMMARY PROCEDURE)
1.

The plaintiff is a company duly incorporated in the Democratic Republic of Congo. The
plaintiffs address of service for the purposes of this suit is c/o NKM Advocates Plot 38
William Street, P.O. Box 7699, Kampala.

2.

The defendant is a business firm which styles itself and trades in the name of ABC CO.
carrying out business of transporting merchandise. The plaintiffs advocates undertake to
effect service of court process on the defendant.

761

British East Afrcia Corp (1939) Vs Ladha (1938-39) 18 KLR 66

Suleman vs. South British Insurance Co. Ltd. [1965] EA 66 Camille vs. Merali [1966] EA 411 Lea
Fils Dreyfus vs. Clarke [1958] 1 WLR 300
763
Sheba Gold Mining Co. Ltd vs. Trunshawe [1892] 1 QB 674
764
May vs. Childley [1894] 1 QB 451
765
Roberts vs. Plant [1895] 1 QB 597
762

184

3.

The plaintiffs claim is for recovery of shillings three million one hundred thirty seven
thousand (3,137,000/=) as balance for breach of contract.

4.

The plaintiffs cause of action against the defendant arose as follows:(a)

The plaintiff sometime in February, 1999 hired the defendant to transport its
agricultural chemical and other items to Zaire from Kampala.

(b)

The defendant lost the plaintiffs items during transportation the details of which
are contained in annexture A hereof.

(c)

On 6th March, 1999 the plaintiff through its advocates demanded for payment of
shillings three million one hundred thirty seven thousand (3,137,000/=) with
compensation the said demand is contained in annexture B attached hereto.

(d)

In a subsequent meeting between the defendants and plaintiffs representatives it

was agreed that shillings three million one hundred thirty seven thousand
(3,137,000/=) be paid by the defendant to the plaintiff.

(e)

On the 29th May, 1999 the defendant reduced the said admission in writing
contained in annexture C where payment was to commence in June, 1999, but
none has been effected since the.

5.

The plaintiff pleads that the defendants above conduct constitute a deliberate refusal to
settle the debt which is due and owing.

6.

The plaintiff further contends that its claim is of liquidated nature and ought to be
recoverable in a summary manner and that the defendant has no defence at all to the
claim in the pleadings.

7.

Notice of intention to sue was duly served on the defendant and this cause of action arose
in Kampala within the jurisdiction of this court.

WHEREFORE the plaintiff prays for judgment against the defendant for:(a)

An order directing the defendant to pay shillings three million one hundred thirty seven
thousand (3,137,000/=).

(b)
Costs of the suit.
DATED at Kampala this .. day of . 1999.
..
COUNSEL FOR THE PLAINTIFF
DRAWN AND FILED BY:
NKMADVOCATES
PLOT 38 WILLIAM STREET
P O BOX 7699, KAMPALA
The Defendant

185

Before leave to appear and defend is granted, the defendant must show by affidavit that there is a
bonafide triable issue of fact or law.766
When there is a reasonable ground of defence to the claim, the plaintiff is not entitled to summary
Judgment.767
The defendant is not bound to show a good defence on the merits but should satisfy the court that
there was an issue or question in dispute which ought to be tried and the court should not enter
upon the trial of the issues disclosed at this stage768.
The defendant who seeks to oppose an application for Judgment under O.36 will have to do so in
one or other of the following ways:(a)

On a preliminary technicality.

(b)

By showing that there is a clear defence.

(c)

By showing that there is a serious issue of fact to be tried.

(d)

By showing that there is an arguable point of law.

(e)

(In certain circumstances) by raising a prima facie set off or counterclaim. 769

(f)

By showing the court that for some other reason there ought to be a trial.

Where court is satisfied upon application, it may grant conditional or unconditional leave to
defend.770
Conditional Leave
Where conditional leave to defend is granted, it is indicative that the court considers the defence
to shadowy771or to have little or no substance in it. 772 Usually, the bonafides of defendant is
doubted in which case the court may require the defendant to give security for costs, or order him
to make payment into court.773
Unconditional leave to defend
In order to avoid Judgment being entered for the plaintiff, the defendant must show that there is a
triable issue or that for some other reason, there ought to be a trial. Where the defendant raises a
766

Maluku Interglobal Trade Agency Ltd. vs. Bank of Uganda [1985] HCB 65 Kasule vs Muhwezi [199293]HCB 212
767
Ibid
768
Hasmani vs Banque du Congo Belge (1938) 5 EACA 88
769
Terrazo Pavioirs vs. Standard Joinery & Building Co. [1967] EA 307
770
O.36 r 8 Souza Figuerido Co. Ltd. vs Moorings Hotel Co. Ltd. [1959] EA 425 Kundalal Restaurant vs
Devshi (1952) 19 EACA 77 Camilille vs Meralli [1966] EA 411
771
Van Lynn Developments Ltd. vs Pelias Construction Co. Ltd. [1968] 3 WLR 1141 at 1146 per Lord
Denning
772
Ionian Bank Ltd. vs Couvre [1968] 1 WLR 781
773
Runnacles vs Mesquita [1876] 1 KB 416

186

triable issue on his affidavit, he must not at this stage be shut out, and must have leave to defend
although his case may appear to be a weak one. On the other hand, mere denials of the
plaintiffs claim are insufficient. The defendant must clearly disclose the nature and extent of his
defence in clear language.
Where questions of law are raised on summary Judgment application, the English rule used to be
stated by Parker L J 774
(a)

If the defendants only suggested defence is a point of law and the court can see at once
that the point is misconceived, the plaintiff is entitled to Judgment.

(b)

If at first sight the point appears to be arguable, but with a relatively short argument can
be shown to be plainly unsustainable, the plaintiff is entitled to judgement.

(c)

If the point of law relied on by the defendant raises a serious question to be tried which
calls for detailed argument and mature consideration, the point is not suitable to be dealt
with in summary suit proceedings.

Application for leave, to defend may be granted although out of time. 775 Delay in applying for
summary judgment is not itself a relevant matter in determining the application in circumstances
where there is no defence to claim.776
Practice
When applying for leave to appear and defend a suit, it would serve a good purpose if the
intended written statement of defence were annexed to the notice of motion to avoid unnecessary
costs, which would of necessity be incurred on appeal. It would help the judge make up his mind
whether to refuse to grant application on the pleadings in the written statement of defence and the
plaint.777
Abuse of Summary procedure
Although O.36 rules 1 and 2 is meant to cover simple claims where the defendant is presumed to
have no defence, in practice, this is the direct opposite due to laxity in the order, mainly because
of:
Less control by the court during the trial procedure.
No strict enforcement of the timetable in the order due to stringent provisions against
defaulting parties.
Leave to file a defence is more or less automatic.
A review of the practice shows that summary procedure is actually not summary at all in certain
circumstances. Parties have found a way of abusing it and prolonging the whole trial process thus
the need to come up with a tight but reasonable time table within which parties would be
expected to act.

774

Home and Overseas Co. Ltd. vs Mentor Insurance Co. (UK) Ltd. [1989] 3 ALLER 74
Twentsche Overseas Trading Co. Ltd. vs Bombay Garage Ltd. [1958] EA 741 contrast Babizalirwa vs.
Buyanja [1989] KALR 155
776
Brinks Ltd. vs Abu Saleh [1995] 4 ALLER 65
777
UCB vs Mukoome Agencies [1982] HCB 22
775

187

An example of the abuse of summary procedure is brought out in a number of cases for example,
in Mitchell Cotts Ltd vs Peter Mulira 778. The suit was brought under summary procedure claiming
recovery of Shs, 1,202,629,155/= in 1999.The case went on and was not resolved until 2004.This
was after 5 years, which is too long in a summary proceeding and there were five applications
which contributed to the delay.
The Cheque Rule
Where goods or services are paid by a cheque or bill of exchange which is subsequently
dishonoured, the payee is entitled to summary judgment on the cheque and the defendant is
precluded from setting off against that claim any counterclaim for damages, for example, for
breach of warranty on the ground that the goods are defective. Lord Denning in a Court of
Appeal aptly noted this;
For many years, the courts of this country have treated bills of exchange as cash. In
James Lamont & Co. Ltd. vs. Ptyland Ltd. 779this court declared that where there is an
action between the immediate parties to a bill of exchange, then the ordinary way
Judgment should be given upon that bill of exchange as for cash and it is not to be held
up by virtue of some counterclaim which the defendant may assert, even as in that case, a
counterclaim relating to the specific subject matter of the contract. 780
The defendant is not entitled to a stay of execution pending resolution of the cross claims.
In other words, the holder of the bill will normally obtain his Judgment without a stay of
execution, and the defendant will have to pay first and counterclaim later.
This is so whether the counterclaim relates to some contract other than that in respect of which
the bill was given781or to that contract itself782and it is only in exceptional cases that the court will
depart from the general practice for example the defendant who complains of bad work will have
leave to defend up to the amount of his counterclaim in the ordinary way.
This rule is one of commercial convenience. Cheques are regarded as equivalent to cash, and if
the rule were otherwise, it would have made a very substantial inroad on the commercial principle
on which bills of exchange have always rested. In effect, where goods or services are paid for by
cheque, there are two contracts; the underlying contract of sale, and the independent contract on
the cheque itself.
The only possible defences allowed in cheque actions are:
(a)
Fraud
(b)
Invalidity
(c)
Illegality
(d)
Duress
(e)
Total failure of consideration.

778

HCCS No.1471 of 1999(unreported)

[1950] 1 KB 585
780
Brown, Shipley & Co. Ltd. vs Alicia Hosiery Ltd. [1966] Lloyds Rep. 668 at 669
781
Nova (Jerse) Knit Ltd. vs Kammgarn Spinnerei [1977] 1 WLR 713
782
Brown, Shipley & Co. Ltd vs Alicia Hosiery Ltd..Supra n
779

188

CHAPTER FOURTEEN
INTERROGATORIES, DISCOVERY AND INSPECTION
INTERROGATORIES
Introduction
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 legislations. 783 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

disallowed.
In any suit the plaintiff or the defendant may apply to the court within twenty one days
from the date of the last reply or rejoinder referred to in Order VIII, rule 18(5) of these
rules for leave to deliver interrogatories and discoveries in writing for the examination of
the opposite parties, or any one or more of such parties and such interrogatories when
delivered shall have a note at the foot thereof which of such interrogatories each of such
persons is required to answer."784
The requirements that interrogatories when delivered shall have a note at foot stating which
parties are required to answer which interrogatories is mandatory and as a matter of practice, such
note should always appear on the draft submitted to the court. 785Any order of court to issue
interrogatories shall direct by what officer of the Government the interrogatories are to be
answered.786
PROCEDURE
No particular specific time is specified in rules for administering interrogatories, but it is clear
that no useful purpose would be served if they were issued before close of pleadings, or before
discovery, service of request for further and better particulars, or notices to admit facts, which
might be expected to yield the kind of information sought in interrogatories.
Consequently, the application for leave to serve interrogatories should be made at reasonable time
before the trial is likely to come on. Interrogatories shall be in form 2 of appendix B of Civil
Procedure Act with such variations as circumstances may require. 787
GUIDELINES
783

S.22 Civil Procedure Act, S.22 Government Proceedings Act.

O.10 r 1
785
DSouza vs Ferrao [1959] EA 1000
786
S.22 (3) Government Proceedings Act
787
O.10 r 4
784

189

There are no rigid rules for determining when leave will or will not be granted to administer
interrogatories. Much depends upon the circumstances of the individual case. However, there are
a number of guidelines which have been developed and which will be followed. These guidelines
may be categorized under the following heads:
Relevance
Interrogatories must relate to any matter in question between the parties. In Marriott vs.
Chamberlain,788Lord Esher MR. attempted to explain the meaning of relevance in this context:
The right to interrogate is not 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 the
facts directly in issue.
There are three important limits to the general rule regarding relevance:(1)

Interrogatories relevant only to the credibility of witness will be disallowed.

(2)

Interrogatories may be sought only as to matters relevant to the present action; questions
that are relevant not to the present action but to other or future actions should be
disallowed.

(3)

Fishing interrogatories are not allowed.

Rules 2 and 3 may be regarded as aspects of the same principle and indeed the courts have treated
them as such. Fishing was defined by Lord Esher MR. in Hennesey vs. Wright (No.2)789 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 defence of which at
present he knows nothing, and which will be a different case from that which he now
makes, the rule against fishing interrogations applies.
And, according to Atkins Court Forms,790fishing interrogations include interrogatories designed
to try to establish a cause of action or defence not pleaded, or a new cause of action against a
third party (for example, whether the interrogated party was acting as agent for an undisclosed
principal).
Facts
Interrogatories are for facts, so they will be disallowed:
(a)

Where they call upon the interrogated party to express an 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 for evidence.791

788

(1886) 17 QBD 154 at 163

(1888) 24 QBD 445 at 448
790
Vol.21 (1) (1996 issue) 515
791
Aggarwal vs Official Receiver (1967) EA 585
789

190

(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.
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. This rule applies
particularly to running down cases.
Scrutton L J said792
In most accident cases, both parties are able to call witnesses, and therefore to
interrogate upon small questions of fact relating to the details of the accident cannot be
necessary for the fair trial and interrogatories should not be allowed.
In that case, interrogatories were allowed because of the special circumstances that the plaintiff
had suffered head injuries in road accident to which there were no independent witnesses, and as
she had lost her memory, she would have been unable to give useful evidence at the trial. The
driver of the car which had run the plaintiff down could therefore be interrogated as to the facts of
the accident.
Other exclusions
In Griebart vs. Morris793 Bankes L J said that interrogatories have two legitimate purposes, one,
to obtain an admission and thus support the interrogating partys case, and the other to destroy the
opponents case. Therefore, interrogatories which support the case of the opponent and not that
of the interrogating party will generally be disallowed.
In a certain case, a claim for damages for seduction of the plaintiffs daughter the following
interrogatory was addressed to the defendant. 794
Do you allege that carnal knowledge has been had of the said daughter by any male
person or persons other than yourself? If yes, give the name and address of each of such
persons respectively.
The ground was disallowed on the basis, inter alia that it was directed to the facts which
the defendant would use to support his defence that he was not the father of the girls
child.
Oppressive interrogatories, such as those which:
(a)

Exceed the legitimate requirements of the particular occasion, 795or

792

Griebart vs Morris [1920] 1 KB 659 at 666

Ibid
794
Hooton vs Dalby [1907] 2 KB 18
795
White and Credit Reform Associates [1905] 1 KB 653
793

191

(b)

Are not formulated with precision and clarity, or are prolix 796

(c)

Place on the interrogated party a burden out of all proportion to the benefit gained for
example, by requiring an unreasonable amount of research, 797or

(d)

Ask for details of the interrogated partys secret manufacturing processes. 798

(e)

Seek to obtain admissions seriatim of all the statements in the pleading of the interrogated
party are, disallowed.

Examples of allowable interrogatories

As previously emphasized, the granting of leave to serve interrogatories is entirely in the
discretion of the court in each case and there is no right to administer interrogatories 799and
accordingly there is no finite list of allowable or prohibited interrogatories. However, the
following are some examples of interrogatories, which have been allowed:
(a)

Asking (in a slander action) whether the words complained of were spoken. 800

(b)

Asking for the name of the publisher of a defendant newspaper in a libel action. 801

(c)

Asking for figures of the circulation of a newspaper in a libel action, where quantum of
damages was in issue.802

(d)

Asking whether (in an action for breach of copyright) the product in question had been copied
from the plaintiffs product.803

(e)

Asking whether the defendant was in possession of a vehicle at the time when it was
involved in an accident.

(f)

Asking in order to prove the handwriting of a disputed letter, whether the interrogated
party was the writer of another letter.804

(g)

Asking for the noise levels in a factory, in an industrial deafness case, 805

(h)

Asking whether contractual documents had been signed by interrogated partys

authorized agents.806

ANSWERS

796

Atkins Court Forms Vol 21 (1) 1996 Issue 515

Det Danske Hedel Skabet vs KDM International PLC [1994] 2 Lloyds Rep. 534
798
Ashworth vs Roberts (1890) 45 CH D 623
799
Aggarwal vs Official Receiver Supra n
800
Dalgleish vs Lowther [1899] 2 QB 590
801
Robinson vs Chokolingo (1970) 10 WIR 407 (T&T)
802
Parnell vs Walter (1890) 24 QBD 44, Hay vs Harracksingh (1960) 3 WIR 124 T & T
803
Rockwell International Corp vs Serck Industries Ltd. [1988] FSR
804
Jones vs Richards (1885) 15 QBD 439
805
Kirking vs British Rail Engineering Ltd. [1983] 1 WLR 1165
806
Bank of Russian Trade ltd. vs British Screen Productions Ltd. [1930] 2 KB 90
797

192

Interrogatories are answered by affidavit 807and 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. 808 In most cases, answers may be a simple
yes or no but where explanations are included, they must be unambiguous, precise and
reasonable.809
If the answers provided are insufficient, the interrogating party may seek an order that the
opponent should file a further and better answer and the court 810 may order the latter to answer
further, either by way of affidavit or upon oral examination. Insufficiency of an answer has to be
determined by court. Answers or part answers to interrogatories may be put in evidence at the
trial. A party may object to answering on the ground of privilege; such objection is conclusive
unless the contrary is shown.
Where a party fails to answer interrogatories, the court may dismiss the action or order the
defence to be struck out, as the case may be. There is also power to commit a defaulting party to
prison for contempt. Before making any of these orders, the court may make an unless order
providing the party in default with a last opportunity to comply.
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 his possession and which are material in the
action.
The process of discovery operates as a powerful procedural instrument to produce fairness,
openness and equality in the machinery of civil justice. It enables each party to be informed or to
be capable of being informed of all the relevant material evidence, whether in the possession of
the opposite party or not; it ensures that as far as possible there should be no surprises before or at
the trial; it reveals to the parties the strength or weaknesses of their respective cases, and so
produces procedural equality between them; and it encourages fair and favourable settlements,
shortens the lengths of trials and saves costs.
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 disks.
Discovery may be automatic or ordered, general or specific, and it may relate to documents not
within the jurisdiction.
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 documents, which are or have been in
possession or power relating to any matter in question therein 811
The main aims of discovery are to save costs, and to dispose of the matter fairly. It should be
granted to ameliorate stoppages during proceedings due to one partys ignorance of facts only
known to the other party.812
807

O.10 r 8
Welbach Incandescent Gas Lightings Co. vs New Sunlight Incandescent Co. [1900] 2 CH 21 at 9 per
Webster MR
809
Altkin Court Forms Vol 21 (1) 1996 issue P 521 Lyell vs Kennedy No.3 (1884) 27 Ch.D
810
O.10 r 11
811
O.10 r 12
812
Dresdner Bank vs. Sango Bay No.4 [1971] 1 ULR 82
808

193

DOCUMENTS MUST BE RELEVANT

Documents, which must be disclosed are those relating to any matter in question between the
(parties) in the action.
In the leading case of Campagnie Financiere vs. Peruvian Guano Co. 813 Brett L J gave a very
wide interpretation of this phrase. He said;
I think it obvious from the use of these terms that the documents to be produced are not
confined to those which would be evidence either to prove or disprove any matter in
question; and the practice with regard to insurance cases shows that the court never
thought that the person making the affidavit would satisfy the duty imposed upon him by
merely setting out such documents as would be evidence to support or defeat any issue in
cause.
The doctrine seems to me to go further than that and to go as far as the principle which I
am about to lay down. It seems to me that every document relates to the matters in
question in the action, which not only would be evidence upon any issue, but also which,
it is reasonable to suppose, contains 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 these two consequences.
Although discovery may be general, it must not be used as a fishing expedition or in any
improper way. In Forester vs. British Railways Board814for instance, 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 that the documentation required to be disclosed was too wide and
clearly constituted a fishing expedition.
IMPROPER USE OF DISCOVERED DOCUMENTS
The courts discourage improper use of discovered matter. Improper use includes using
discovered material to start new causes of action; this prohibition does not apply to Mareva
injunctions (which is a branch of discovery), since such injunctions may be specifically granted in
order to facilitate other proceedings. Usually, the party-seeking discovery will give an
undertaking not to use the discovered material for any purpose other than in furtherance of the
present action.
PRIVILEGED DOCUMENTS
A party-making discovery may object to producing privileged documents for inspection. Where
privilege is claimed for any document, the court may itself inspect it in order to deceive whether
the claim is valid. the commonest types of privileged documents are:-

813
814

(1882) 11 QBD 55 at 63
1996 The Times, 8 April

194

1.

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 is written with the object of
obtaining or giving legal advice or assistance; 815it is not necessary that the document
should have been prepared with the present or any litigation in mind. Instructions and
briefs to counsel and counsels opinions, drafts, and notes are also privileged. This and
the following type of privilege are often referred to as legal professional privilege.
Communication passing between the client and his/her legal adviser together and, in
some cases with communication passing between these persons and third parties, may not
be given in evidence without the consent of the client if they were made either with
reference to litigation actually taking place or is in the contemplation of the client or to
enable the client to obtain or the adviser to give legal advice. This was reiterated by Sir
Richard Scott V-C in Re Barings Plc that;816
Individuals should be able to consult their lawyers in the certain knowledge
that what they tell their lawyers and the advice they receive from their lawyers,
whether orally or in writing, will be immune from compulsory disclosure.
The rationale for this rule was given by Lord Taylor of Gosforth CJ in R vs Derby
Magistrates Court, Ex-parte B that;817
a man must be able to consult his lawyer in confidence, since otherwise he
might hold back half the truth. The client must be sure that what he tells his
lawyer in confidence will never be revealed without his consent. Legal
professional privilege is thus much more than an ordinary rule of evidence,
limited in its application to the facts of a particular case. It is a fundamental
condition on which the administration of justice as a whole rests.

2.

Documents prepared with a view to litigation

All documents which are prepared for the purpose (though not necessarily the sole or
primary purpose) of assisting a party or his legal advisers on actual or anticipated
litigation are privileged, whether they related to obtaining the necessary evidence.
Examples of documents falling into this category are experts report, proofs, briefs, and
draft pleadings. It has been held that communications between an assured and the
insurance company indemnifying him, such as an accident claim form, are
privileged818but the privilege does not extend to communications between co-defendants,
nor to communications between a party, unless the dominant purpose for which the
document was prepared was for the submission to a counsel with view to pending or
anticipated litigation.819

3.

Privilege against Self Incrimination

815

Munnet vs Morgan (1873) LR Ch. 361, Buttes Gas and oil Co. vs Hammer (No.3) [1981] 1 QB 223 at
243
816
[1998] 1 ALL.ER 673
817
[1996] AC 487 at 507
818
Westminster Airways Ltd. vs Kuwait Oil Co. Ltd. [1951] 1 KB 134
819
Waugh vs British Railways Board [1980] AC 521

195

A party has a right to refuse to answer questions or produce documents tending to show
that he has been guilty of a criminal offence or the answers to which might expose him or
her to any penalty, which is reasonably likely to be sought.
In Renworth Ltd vs Stephensen820 court held that it would uphold s claim for a privilege
against disclosure on the ground of self-incrimination in a civil case where it was
satisfied that disclosure would tend to expose the person concerned to proceedings for a
criminal offence(s).
In deciding whether such a claim could be upheld, the court would examine;
The existence of any link between the answers sought and the offence(s) to
which the claimant would be exposed, and
Whether, in respect of any possible offences, the privilege had been removed and
replaced by a more limited statutory protection
In the case of Rank Film Distributors vs Video Information Centre821 the question was
whether a party against whom an Anton Pillar Order had been served could resist the
production of some material which was covered by the Order on the ground that it might
tend to incriminate him for an offence under the Copyright Act 1950.The House of Lords
held that the defendant in this case could invoke the privilege, notwithstanding the fact
that prosecution was highly unlikely.
WITHOUT PREJUDICE COMMUNICATIONS
Communications between the parties or their advisers are not privileged. Thus, for instance
letters written by an opponent or his adviser may be produced in evidence by the party to whom
they are addressed, for example to establish admissions or to use in cross-examination in order to
show inconsistency in versions of facts put forward. An exception to this principle is the without
prejudice communication, the purposes of which is to enable the parties to negotiate in order to
settle a dispute without the correspondence relating to the negotiations being used against them
should the negotiations fail.
In such circumstances, letters marked without prejudice, whether litigation was current or not,
will be privileged and may not be put in evidence unless both parties consent. 822 So long as the
correspondence is in the course of negotiations it may be privileged, even if not expressly marked
without prejudice, conversely, the use of those words does not confer privilege, if the
correspondence was not in fact bonafide written for the purpose of negotiations.
A letter written without prejudice was to protect the writers position. If the terms he proposes are
not accepted. If the terms proposed in the letter are accepted, a complete contract is established
and the letter although written without prejudice operates to alter the old state of things and
establish a new one.823Letters written without prejudice may be construed as a contract between
the parties. Therefore without looking at those letters it is not possible to determine whether the
parties had any definite agreement between them. To that extent the letters are, on the facts of the
case admissible since their proper construction would determine an agreement if any, between the
parties.824
820

[1996] 3 ALL.ER 244

[1981] 2 W.L.R 668
822
Rabin vs Mendoza and Co. [1954] 1 WLR 271
823
Tomlin vs Standard Telephones and Cables Ltd [1969] 3 ALL.E.R 201
824
East African Underwriters vs Civil Aviation Authority CACA No.8 of 2002
821

196

ORDERED DISCOVERY
The court has discretion to order discovery of documents in cases where automatic discovery is
not applicable. An order for discovery is not limited to actions begun by plaint but applies to any
action begun by an originating process. The court may also order discovery in cases;
(a)

Where a party fails to make automatic discovery when he was under an obligation to do
so;

(b)

Where disclosure is insufficient;

(c)

Where a party seeks specific discovery of a document;

(d)

Where a party seeks discovery as a tracing remedy only.

To use O.10 r 14 there has to be proceeding pending and also court is empowered to order the
production of the document. This order is narrower than rule 12 & 13 which concern discovery
before hearing commences.825
The purpose of discovery is to ensure that the issues which are to be decided by the trial judge are
clearly defined as possible, and to ensure that the trial takes place within the estimated time set
out in the order for directions, discovery must be completed before a case is set down for trial.
ACTION FOR DISCOVERY
The Norwich Pharmacal Rule
The court derives its power to order this form of discovery not from the Civil Procedure Rules,
but from its inherent jurisdiction.826
Here, discovery relates to the identity and whereabouts of a third party who has become in some
way (innocently) implicated in the commission of a tort. An order of this nature is discretionary
and the court has the power to restrict its application, particularly where there is a public interest
element, such as a breach of confidentiality.
The classic formulation of the circumstances in which a third party will be required to make
discovery is contained in Norwich Pharmacal Co. vs. Customs and Excise Commissioners. 827 In
this case the plaintiff was owner of a patent for the production and sale of a chemical fertilizer.
The customs and excise figures for 1969-70 showed that a number of consignments of the
chemical had been imported into United Kingdom by firms other than the plaintiff, in breach of
the latters monopoly. The plaintiff sought an order of discovery against the commissioners to
compel them to disclose the identities of the importers.
The House of Lords held that an action for discovery lay to compel the commissioners to disclose
the information, for although they had committed no tort, they had unwittingly assisted in the

825

Uganda Commercial Bank vs Akamba (U) Ltd [1992] IV KALR 28

OHare J and Hill, RN Civil Litigation 7th Edn, (1995), London; FT LAWS & TAX p.400
827
[1973] 2 ALL.ER 943
826

197

infringement of patent by giving the importers customs clearance to enter the country. Lord Reid
explained the principle thus;828
[The authorities] seem to me to point to a very reasonable principle that if through no
fault of his own a person gets mixed up in the tortious acts of others so as to facilitate
their wrong doing, he may incur no personal liability but he comes under a duty to assist
the person who was wronged by giving the full information and disclosing the identity of
wrong doers. I do think it matters whether he became so mixed up by voluntary action
on his part or because it was his duty to do what he did but justice requires that he
should co-operate in righting the wrong if he, unwittingly facilitated its perpetration I
would therefore hold that the respondents must disclose the information now sought,
unless there is some consideration of public policy which prevents that.
Discovery will not be ordered under the Norwich Pharmacal Rule where the defendant is a mere
witness or observer who was not implicated in the wrongdoing. The question as to whether the
defendant was mixed up in the wrongdoing or whether he was a mere witness may be a difficult
one to answer. In Ricci vs. Chow829for example, the official journal of the Seychelles National
Movement had published an article alleging that the plaintiff in collaboration with others, had
procured the assassination of a prominent member of the party. The plaintiff brought an action
for damages for libel against the defendant, the secretary general of the party, on the ground that
the defendant was responsible for the publication, or alternatively for an order that the defendant
should divulge the identities of the persons responsible. The judge found that there was no
damages for libel was struck out, but he allowed two interrogatories, requiring the defendant to
divulge the names of the publishers and printers of the article.
The Court of Appeal, over ruling the judge, held that the case was not within the Norwich
Pharmacal principle since the defendant had in no way facilitated the printing and publication of
the article, unwittingly or otherwise, and the mere fact that he was aware of identities of the
alleged tortfeasors could not justify an order for discovery at common law, even if his evidence
was the only means by which they could be identified.
The defendant was a mere witness or observer in relation to the publication and he had not
involved in the alleged libel. He was therefore not susceptible to an action for discovery.
An extension of the Norwich Pharmacal principle occurred in Bankers Trust Co. vs. Shapira. 830
In this case the defendant had been paid $1M (US) by the plaintiff bank under a forged cheque
and disappeared. The defendant and another person held accounts at a London Bank to which the
money was credited. The plaintiff obtained a Mareva injunction restraining the London Bank
from disposing of any money the defendant and another had paid into the bank; but the judge
refused to order discovery against the bank requiring it to disclose the sums standing in the
accounts held by the defendant and another, correspondence between the bank and defendant, and
banking documents such as cheques drawn on the accounts and internal memoranda. The ground
for refusal was that an order for discovery should not be made so long as the true defendants to
the action had not been served.
The English Court of Appeal, overruling the judge, held that discovery could be ordered against
the bank in order to give effect to a defrauded plaintiffs equitable right to trace his money, even
though the bank had not incurred any personal liability. To justify the order, however, the
828

Ibid at P 948
[1987] 3 ALL.ER 534
830
[1980] 3 ALL.ER 353
829

198

evidence of fraud against the account holder had to be sufficiently strong to disentitle him from
relying on the confidential relationship between him and his bank. Moreover, an order for
discovery would be on the terms that the plaintiff gave an undertaking in damages to the bank,
paid any expenses incurred by the bank in making discovery, and used the documents disclosed
solely for the purpose of tracing the money.
Lord Denning explained the decision thus:831
Having heard all that has been said, it seems to me that Mustill J was too hesitant in this
matter. In order to enable justice to be done, in order to enable these funds to be traced,
it is very important part of the courts armoury to be able to order the discovery. The
powers in this regard, and the extent to which they have gone, were exemplified in
Norwich Pharmacal vs. Customs and Excise Commissioners. 832 The customs authorities
were perfectly innocent but they had to disclose the names of infringers of patents whose
goods had passed through their hands.
Lord Reid said;833
They seem to me to point to a very reasonable principle that if, through no fault of his
own, a person gets mixed up in the tortious acts of others so as to facilitate their wrong
doing, he may incur no personal liability but he comes under a duty to assist the person
who has been wronged by giving full information and disclosing the identity of the wrong
doers.
Lord Reid was referring to the views expressed by Lord Romilly MR and Lord Hatherly LC in
Upmann vs. Elkan;834
So, Discount bank incur no personal liability; but they got mixed up, through no fault of
their own, in the tortious or wrongful acts of these two men; and they come under a duty
to assist Bankers Trust by giving them and the court full information and disclosing the
identity of the wrong doers. In this case the particular points is full information
This new jurisdiction must of course, be carefully exercised. It is a strong thing to order
a bank to disclose the state of its customers account and the documents and
correspondence relating to it. It should only be done when there is good ground for
thinking the money in the Bank is the plaintiffs money, as for instance when the customer
got the money by fraud or other wrong doing, and paid it to his account at the bank. The
plaintiff, who has been defrauded, has a right in equity to follow the money.
He is entitled, in Atkin LJs words to lift the latch of the bankers door; see Banque Belge Pour
LEtranger vs. Hambrouck 835 The customer, who has prima facie been guilty of fraud, cannot
bolt the door against him. Owing to his fraud, he is disentitled from relying on the confidential
relationship between him and the Bank. See Initial Services Ltd. vs. Puttervill. 836 If the
plaintiffs equity is to be of an avail, he must be given access to the banks books and documents,
for that is the only way of tracing the money or of knowing what has happened to it.
831

Ibid at P 357
Supra n
833
Supra n
834
(1871) LR 12 Eq 140 at 145
835
[1921] 1 KB 321 at 335
836
[1967] 3 ALLER 145 at 148
832

199

So the court, in order to give effect to equity, will be prepared in a proper case to make
an order on the bank for their discovery. The plaintiff must of course give an
undertaking in damages to the bank and must pay all and any expenses to which the bank
is put in making the discovery; and the documents, once seen, must be used solely for the
purpose of following and tracing the money, and not for any purpose. With these
safeguards, I think the new jurisdiction, already exercised in the three cases I have
referred to, should be affirmed by this court.
The problem in Practice
In most cases where discovery is required or deemed the parties disclose and produce everything,
which is arguably relevant to the subject matter of the action. This is not the proper compliance
with the Peruvian Guano test or anything like it. This case involves skill and judgement: the
advocate must ask himself or herself whether the document may assist either party in advancing
its case on an issue disputed on the pleadings, or in destroying the other partys case on an issue
in the pleadings, either directly or by setting off a train of enquiry. If not, it should not be
disclosed.
The rules, which govern the categories of documents that must be disclosed and produced on
discovery, work effectively, either because there are not many documents or because the parties
co-operate. It is in document-heavy cases and where the parties do not cooperate that serious
problems arise. It is common for there to be lack of co-operation, with parties approaching
discovery in an adversarial and obstructive manner.
Discovery in such circumstances may have adverse consequences for the future conduct of the
proceedings:837
The pleadings become longer and more complicated.
It becomes necessary to call more witnesses and experts to deal with additional issues and
there statements and reports are respectively longer.
The sheer volume of documentation results in an obfuscation of the real issues, which may
appeal to a party wishing to distract attention from the weaknesses in his case or to fish
around for possible claims or defences.
The additional complexity makes it more difficult to predict the outcome of the case at trial.It
therefore becomes more difficult to settle.
Every stage of the proceeding becomes more labour intensive, takes longer and costs more.
It encourages settlement immediately before or during trials, when costs are being incurred at
the greatest rate, rather than at an earlier stage before costs have begun to accelerate.
The case becomes more difficult to try.
INSPECTION

837

Civil Justice on Trial-The Case for Change Report by the independent working Party set up jointly
by the General Council of the Bar and the Law Society by Hilary Heilbron QC 1993 at pg 44

200

INSPECTION OF DOCUMENTS REFERRED TO IN PLEADINGS

If any document is referred to in a partys pleadings or affidavits, his opponent may serve a notice
on him requiring him to produce that document for inspection. 838 Within ten days of receiving
such a notice, the party must serve a notice stating a time within three days of receipt of notice
and a place where inspection may take place. 839 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 partys pleading refers to an agreement in
writing dated since it gives the opportunity for inspection of the document without waiting for
formal discovery, which take place after a close of pleadings. Thus the defendant may inspect a
document referred to in a plaint before he drafts his defence.
If a notice served is not complied with, the applicant may move court to make an order for
inspection.840 An order for inspection may be made before filing a defence. 841
A party who has served a list of documents on another party must allow the latter to inspect the
documents contained in the list, other than any which he objects to produce, and to take copies.
The list of documents will contain a notice at the end specifying a time within three days after the
service of the list when the inspection may take place and the place of inspection.
Inspection thus entails both;
(a)
(b)

the examination of the documents on the list or on the pleadings or affidavits; and
the taking away of copies.

The particulars as to the time for inspection must be reasonable. If the particulars are
unreasonable or if the party fails to make provision for inspection at all, the court, upon
application for an order supported by affidavit specifying;
(a)

The documents of which inspection is sought.

(b)

That in the deponents belief the documents are in the possession, custody or power of the
other party,

will make an order for inspection. The court also has the power to order the production of
documents to the court itself.
Disclosure of documents by inclusion in a list of documents does not mean that they have to be
produced for inspection. A court will apply the necessity test to an application for production. 842
NON COMPLIANCE WITH THE COURTS ORDER

838

O.10 r 15
O.10 r 17
840
O.10 r 18
841
Diamond Concrete vs Patel [1969] EA 518
842
Dolling-Baker vs Merrett [1990] 1 WLR 1205
839

201

If a defendant does not comply with an order for discovery, the court may strike out the defence
and enter judgment for the plaintiff; and if a plaintiff does not comply with an order, the court
may dismiss action.843
The court may also order committal against a defaulting party, if that party has no reasonable
excuse for failure to comply. A suit should only be dismissed where the default is willful; the rule
may be invoked as to outstanding issues when a case has been remitted by an appellate court. 844

CHAPTER FIFTEEN
THE TRIAL
Scheduling Conference Or Case Management Conference
After filing a last reply from either party, court shall hold a scheduling conference to sort out
points of agreement or disagreement, the possibility of mediation, arbitration and any other form
of settlement.845

843

O.10 r 21
Eastern Radio Service vs Tiny tots [1967] EA 392
845
O.12 r1
844

202

Under this rule, the holding of a scheduling conference in Civil cases is Mandatory. 846In the case
of Stanbic Bank (Uganda) Ltd vs Uganda Cros Ltd Tsekooko JSC explained:847
That a trial court is expected to hold a scheduling conference to sort out points of
agreement and disagreement, the possibility of mediation, arbitration and any form of
settlement. Because the central issue in this case is reconciliation of figures, I expect that
at the scheduling conference stage, parties in this case should have produced properly
audited accounts of the respondent as part of the expert evidence and try to narrow down
points of disagreement. That is the stage when proper issues would emerge.
Where the parties reach an agreement orders shall immediately be made as under O.15 r 6 and 7.
The main feature of the new rules is the idea of scheduling conference; which aims to ensure that
a dispute progresses as expeditiously and economically as possible to a fair settlement by
negotiation or mediation or some other system of civil litigation, the progress of an action is very
much in the hands of the litigants themselves, through their advocates. Under the new system,
scheduling conference is placed firmly in the hands of the judges, who will set the agenda both
for preparation for trial and for the trial itself.
The new rule is intended to remedy the perceived ills of the present system of civil litigation, viz.
an excessively adversarial environment, excessive and unaffordable cost, undue delay, and overcomplexity.
This is intended to be not so much a hearing in the formal sense but as a conference between the
main players the stakeholders in the litigation, the parties, their advocates and the court. one
end result will be a set of directions a time table for the litigation which, in the end, the court
must be able to impose an enforce with appropriate sanctions. However, the emphasis should be
more on a co-operative effort in which needs of all stakeholders in the litigation can be
considered.
Under the provisions of new rules, a judge is able to offer to conduct an early neutral evaluation
(ENE) where he thinks it likely to assist in the resolution of the dispute. This involves the judge
giving his opinion as to the strengths and weaknesses of each partys case based on a summary of
evidence and argument. The parties can then use this as a basis for settlement or for further
negotiation. To preserve his or her position of neutrality, the judge takes no further part in that
case.
The parties to an action will in most cases have got legal opinion from their counsels as to their
prospects of success in bringing or defending a claim but the early neutral evaluation (ENE) may
be useful as a second opinion. Perhaps where a party has been unwilling to accept pessimistic
advice.
It is suggested that the powers of case management in the new rules allow judges to give an
evaluation in any case. The aim is to identify the issues and enable the parties to hear an
independent evaluation of their chances of success. So if a judge considered that an evaluation
would help bring about a settlement, he or she would be able to provide it.
Some judges use their powers of persuasion to encourage the use of Alternative Dispute
Resolution (ADR). Participation in ADR is essentially voluntary and must be agreed to by both
846

Tororo Cement Co. Ltd vs Frokina International Ltd SCCA No. 2 of 2001 Judgement given 24-4-2002
(unreported)
847
S.C.C.A 4 of 2004 (unreported)

203

or all parties to a dispute. It should be noted that the offer for ADR is sometimes rejected because
it is regarded as a sign of weakness in the context of litigation.
Where a party has refused unreasonably a proposal by the Court that ADR should be attempted,
or has acted unco-operatively in the course of ADR, the Court should be able to take that into
account in deciding what order to make as to costs.
OBJECTIVES OF SCHEDULING CONFERENCE
The overriding objectives of the conference include;
1.

Identifying the issue at an early stage and assessing the possibility of mediation
arbitration, and other forms of settling the suit.848

2.

Disposing of hopeless case or issues summarily;

3.

Encouraging the parties to use the most appropriate form of dispute resolution, including
mediation, and encouraging settlement on terms fair to both parties;

4.

Encouraging the parties to co-operate with each other in the conduct of the proceedings;

5.

Fixing time tables and controlling the progress of the case;

6.

Considering whether the likely benefits of taking a particular step will justify the cost of
taking it.

POWERS OF COURT
The courts general powers during scheduling conference are wide. The court may, for instance
extend or shorten the time for compliance with any rule, practice direction or order of the court;
adjourn or advance a hearing to a specific date; stay any proceedings generally, or until a
specified date; decide the order in which issues are to be tried; direct a separate trial of any issue;
dismiss a claim after a decision on a preliminary issue; deal with the matter without attendance of
any parties.
It is intended that the scheduling conference should be the forum for all procedural applications
and that applications at other times should be restricted. Where there is not justification for
failing to make an application at the conference, an application made at some other time should
be penalized in costs.
As court noted that; after a scheduling conference, and where it is necessary, interlocutory
applications can then be made and disposed of before the suit is fixed for hearing. In that way the
suit is managed systematically. Preliminary points should properly be raised and dealt with
during a scheduling conference or soon thereafter. One hopes that the avoiding of scheduling
conference will be a regular feature in the trial of civil cases by all trial courts. 849
CONTENT OF SCHEDULING CONFERENCE
848

Tororo Cement Co. Ltd. vs Frokina International Ltd. Supra n

O.3 r 1 Kawoya vs Naava [1975] HCB 314, Kyobe Ssenyange vs Naks [1980] HCB 30, Nassanga vs
Nanyonga [1977] HCB 379
849

204

There is no single programme for all conferences, but it is envisaged that the following elements
will be present in most cases;
(a)

Examination by the judge of the pleadings of case to ensure that they are drafted in
accordance with the rules;

(b)

Consideration of any application to amend a plaint, to seek further and better particulars
or to join any further parties;

(c)

Identification of the true issue to see if an agreement can be reached on all or any of
them; to prepare a preliminary statement of issues for trial; to give directions as to what
work needs to be done to prepare for any preliminary issue.

(d)

Exploring the prospect of settlement or mediation.

(e)

Give directions and timetable for trial.

The rules do not give any specific order or sequence to follow during the scheduling conference
and this has left many stakeholders unable to know what to do when the matter is coming up
during the scheduling conference. The Scheduling conference will ideally follow the sequence
out-lined below: Parties introduce themselves through Counsel.
Court explains purpose of the Scheduling Conference.
Plaintiffs lawyer presents plaintiffs case in brief.
Defendants lawyer presents defendants case in brief.
Court establishes what efforts if any have been made towards settlement.
Court assists parties to narrow down triable issues (sorts out points of agreement and
disagreement).
Parties are given an opportunity to settle or to consider ADR.
Court gives the litigants themselves an opportunity to contribute to the discussion.
Court assists parties to frame issues, exchange of documents, agree on number of
witnesses; and
Court fixes timetable for trial of case (must leave an opportunity open for settlement)
TRIAL AND COURT PROCEEDING
When the suit is set down for hearing, any party may raise a preliminary objection as to the
propriety of the pleadings for any defect or irregularity in the case or documents before court.
A preliminary objection by its very nature should be raised at the commencement of the
proceedings since it is proper to bring to the notice of the court an alleged irregularity which must
be cured before the case during the course of submissions by counsel. 850
Upon the hearing of the preliminary objection, the court should give a ruling on the preliminary
objection but defer the reasons to be given with the merits of the application at a later stage.

850

Nassan Wasswa and 9 others vs Uganda Rayon Textiles [1982] HCB 137

205

However, it should be noted that any preliminary objection should be raised during the scheduling
conference before the suit is set down for hearing.
The parties may appear before court in person or by an advocate or recognised agent. 851
1.

2.

If the defendant elects not to adduce evidence;

i)

An opening speech is made on behalf of the plaintiff

ii)

Unless there is a preliminary objection, the plaintiffs witnesses are called,

examined, cross-examined and re-examined.

iii)

The plaintiff or his counsel makes a speech, closing his/her case.

iv)

The defendant states his/her case.

If the defendant elects to adduce evidence

i)

The plaintiffs case is opened;

ii)

And his witnesses are called unless there is a preliminary objection;

iii)

The defendants witnesses are called;

iv)

A closing speech is made for the defendant, and is followed by

v)

A closing speech for the plaintiff.

Where two or more defendants are represented separately, they present their cases in the order in
which their names appear on the record.

Framing of issues
Before any witnesses are called there is a duty on court to frame issues. 852 The framing of issues
is a rule governing the conduct of a civil proceeding with neither the court nor counsel is entitled
to leave out of account. 853 In practice the two parties normally frame the issues which are put
before court and the court may enter them on record or re-frame them for clarity.
Issues arise when a material preposition of law or fact is affirmed by the party and denied by the
other.854

851

Per Justice Tsekooko J.S.C in Tororo Cement Co. Ltd. vs Frokina International Ltd. Supra n
O.15 r 1 (5) Kayondo vs Cooperative Bank CA 10/91 (unreported) Oriental Diary vs De Souza (1948)
23 KLR 4
853
Jan Mohamed Umerdin vs Hussein Armashi (1953) 20 EACA 41
854
O.15 r 1 (1) Kahiwa vs UTC [1978] HCB 316
852

206

There are issues of law and issues of fact. 855 Where the defendant admits the whole claim, then
there are no issues necessitating a trial and such a defence is no defence as it is frivolous,
vexatious and discloses no defence in law.856
Failure to frame issues is an irregularity but not fatal as long as the parties at the trial know what
is the real question between them, evidence is taken on it and the court duly considers it. 857
Where issues both of law and facts arise in the same suit, and the court is of opinion that the case
or any party thereof may be disposed of on the issues of law only, it shall try those issues first,
and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact after the
issues of law have been determined. 858
Issues may be framed from allegations made on oath, allegations made in pleadings or in answer
to interrogatories delivered in the suit or from the contents of the documents. 859
An issue framed in general terms must be construed with reference to the particulars pleaded. 860
Where issues are framed on agreement of the parties, court is not bound by their agreed issues. 861
The court may at anytime before passing the decree amend the issues or frame additional issues
on such terms as it thinks fit, and all such amends or additional issues as may be necessary for
determining the matters in controversy between the parties shall be so made or framed. 862
The court may also at any time before passing the decree strike out any issues that appear to it to
be wrongly framed or introduced.863
The court also may frame issues on points not raised in the pleadings but arising from matters
stated by the parties or their advocates on which a decision is necessary in order to properly
determine the dispute before the court.864 Where a court amends issues, which parties had agreed
upon. It is necessary to give the parties the right to adduce further evidence or address the court
on amended issues to ensure that rules of fair trial as per the Constitution are complied with. 865
The court may allow evidence to be called and may base its decision on unpleaded issue if it
appears from the course followed at the trial that the unpleaded issue has been left to the court for
decision.866
Order of Proceeding at Trial

855

O.15 r 1 (4)
All Ports Freight Service (U) Ltd. vs Julius Kamanyi HCCS No.409 of 1995 [1996] 1 KALR 128
857
Norman vs Overseas Motor Transport Tanganyika) Ltd. [1959] EA 131
858
O.15 r 2
859
O.15 r 3 Kahiwa vs UTC [1978] HCB 316
860
Plotti vs Acacia Co. Ltd. [1959] EA 248
861
Barugahare vs A.G. [1990-91] KALR 34
862
O.15 r 5 (1) Kahiwa vs UTC [1978] HCB 316
863
O.15 r 5 (2) Durvesh vs Villain [1957] EA 91
864
Barugahare vs A.G. SCCA No.28 of 1993 Prince JDC Mpuga Rukidi vs Prince Solomon Iguru SCCA
No. 18 of 1994 [1996] 1 KALR 1
865
Oriental Insurance Brokers Ltd. vs Transocean (U) Ltd. SCCA No. 55 of 1995 (unreported) see also
Bitarabeho vs Dr.Edward Kakonge supra
866
Bitarabeho Christine vs Dr.Edward Kakonge [1997] HCB 55 (C.A.C.A No.4 of 1999) Odds vs Mabia
[1970] EA 476
856

207

The plaintiff shall have the right to begin unless the defendant admits the facts alleged by the
plaintiff and contends that either in point of law or on some additional facts alleged by the
defendant the plaintiff is not entitled to any part of the relief which he seeks, in which case the
defendant shall have the right to begin.867
On the hearing date, the party having the right to begin shall state his case and produce his
evidence in support of the issues. The other party shall call his evidence and may address the
court generally on the whole case. Then, the party beginning may reply generally on the whole
case.868
The present practice is to allow every litigant unlimited time and scope so that the litigant and his
advisers are able to conduct their case in all respects in the way, which seems best to them. This
results in a torrent of words, written and oral, which are oppressive and which the judge must
examine in an attempt to eliminate everything, which is not relevant, helpful and persuasive. 869
Making Submissions in the Court
After all parties have called witnesses, the case is closed and they have to make their submissions
to the Court. The submissions may either be oral or written. Usually the plaintiff begins and then
the defendant submits later.
During the oral submissions the plaintiff or his/her advocate summarizes the brief facts of the
case to the court and restates the issues as framed and agreed during the scheduling conference.
Thereafter he/she submits on each issue in relation to evidence adduced during the trial and the
law applicable as well as decided cases decided on such points. At he close of the plaintiffs
submissions, the defendant or his/her advocate replies by also making submissions and lastly the
advocate who submitted first may reply, if he/she wishes.
In practice, some advocates prefer to make written submissions as opposed to oral submissions.
In such a case, the advocates will apply to court to make written submissions, which the court
may either allow them to file written submission or insist on making oral submissions. Once the
Court allows the parties to file written submissions it will set a specific period or timetable for
filing submissions.
No case to answer
A defendant wishing to submit that he has no case to answer should be asked specifically whether
he intends to make the submission and call no evidence or to call evidence. In which case, his
submission will not be accepted.870 When the court fails to put the defendant to his specific
election means that the case would have to be remitted to the court for it to hear the defendants
evidence on the issue in contention once counsel submits that there is no case to answer for the
defendant, the court should refuse to rule on the submission unless counsel for the defendant says
he is going to call no evidence. This can be made perfectly clear by words, which he uses or by
the way in which he acts, that he does not intend to call any evidence. 871 A defendant who makes

867

O.18 r 1
O.18 r 2
869
Banque Keyser Ullmann S.A vs Skandia (KU) Insurance Co. [1991] 2 AC 249
870
Nakalema vs Michalistanos EACA Civil Application No. 37 of 1976 (Unreported)
871
Laurie vs Raglan Building Co. Ltd [1942] 1 KB 155 Alexander vs Rayson [1936] 1 KB 169
868

208

a submission of no case to answer must be put to his election whether to call evidence or proceed
with his submission.872
Examination of witnesses
The hearing of suits and calling witnesses is regulated by O.16 r 3 &4 and Article 28 of the
Constitution which summarize the above provisions thus:-873
Hearing cases must normally be in open court.
Evidence adduced by one party must be open to challenge by the other party.
A witness called by one party must be open to cross-examination by the other party to
test the reliability of the evidence of such witness.
The essence of (i) and (iii) is to ensure a fair public trial.
The order in which witnesses are produced and examined shall be regulated by the law and
practice for the time being related to civil and criminal procedure respectively, and in absence of
any such law, by the discretion of the court.874
Witnesses shall be first examined in chief then cross-examined then re-examined.
The examination and cross-examination must relate to relevant facts, but the cross-examination
need not be confined to the facts to which the witness testified on his examination-in-chief. 875
Witnesses in civil proceedings in court attend either voluntarily or after summons have been
issued out of court. these summons are called witness summons. They are sent out commanding
the person to whom it is addressed to attend to give evidence or to produce a document or
documents with him.876 Such a witness is required to attend court and testify orally in either open
court or chambers.
The witness who is summoned and fails to appear may be compelled by court either by arrest 877or
attachment of his property.878
The service of witness summons takes the character of service of court process (summonses). 879
Although there is no specific remedy for striking out witness summons improperly issued, court
can invoke its inherent powers to set aside such summons. 880
It is for the parties at a civil trial to call evidence; the court cannot call witnesses of its own
motion unless the parties consent, or at least do not object to its doing so. 881
He may, however, recall a witness who has already given evidence 882and the rule against the
judge calling evidence does not apply to the hearing of a motion to commit to prison for breach of
872

Overseas Touring Co. (Road Services) Ltd. vs Africa Produce Agency (1949) Ltd [1962] EA 190
Uganda Co-operative Transport Union Ltd vs Roko Construction Ltd SCCA No.35 of 1995
874
S.134 of Evidence Act
875
S.136 of Evidence Act
876
O.16 r 1
877
O.16 r 10
878
O.16 r 11
879
O.16 r 8
880
Ryan Investments vs U.S.A [1970] EA 675
881
Re Enoch and Zaretzky, Bock & Co. S Arbitration [1910] 1 KB 327
882
O.16 r 12 Fallon vs Calvert [1960] 2 QB 201
873

209

this, is of a quasi-criminal character and so the court has power, in order to find out the truth; to
call whatever witnesses it wishes.883
The order in which witnesses are called is a matter within the discretion of counsel, and if the
court interferes with the exercise of the discretion, there is a technical misconduct of the trial. 884
Witnesses unable to attend court examination out of the jurisdiction
Where a party or a person to be examined and that person is out of the jurisdiction he may seek
an order of the court for the issue of a letter requesting the judicial authorities to the country
where the person is to be found that the evidence of that person be taken. According to the Civil
Procedure Act, the court may issue a commission to examine any person. 885
Any court may in any suit issue a commission for the examination of any person resident within
the limits of its jurisdiction who is exempt under the Act from attending the court or who is from
sickness or infirmity unable to attend it.886
A commission may issue to any witness who resides within the local limits of the jurisdiction 887or
resident beyond the local limits of its jurisdiction or such witness who is about to leave such
limits before the date on which he is required to be examined in court or to any witness who is a
civil or military officer of the Government who cannot in the opinion of court attend without
detriment to the public service.888
Usually a plaintiff will be required to appear before court to give evidence, it is only in
exceptional circumstances that court will allow a plaintiff to be examined out of jurisdiction. 889
Likewise, women who according to the customs and manners of their community, ought not to be
compelled to appear in public shall be exempt from personal appearance in court. 890
The court on an application supported by an affidavit may make an order for the issue of a
commission for the examination of a witness. 891 An application shall be by chamber summons. 892
Evidence by Affidavit.
The court has the power, at any time it considers reasonable, order that any particular fact or facts
may be proved by affidavit or that the affidavit of any witness may be read at the hearing, on such
conditions as the court thinks reasonable.893
Whenever evidence is given by affidavit there should be a reply to that affidavit. The rationale is
to test the credibility of that evidence. Evidence by affidavit is not admissible where there is no
883

Yianni vs Yianni [1966] 1 WLR 120

Barnes vs B.P.C. (Business Forms) Ltd. [1975] 2 W.L.R 1565
885
S.53 (a) of Civil Procedure Act, O.28 r 5
886
O.28 r 1
887
O.28 r 3
888
O.28 r 4
889
Battam vs Kampala African Bus Company [1959] EA 328
890
S. 84 of Civil Procedure Act
891
O.28 r 2
892
O.28 r 2 and 20
893
O.19 r 1
884

210

affidavit in reply.894Where an application rests on a matter of law an affidavit maynot be

necessary.895
However, where facts are sworn to in an affidavit and these are not denied or rebutted by the
opposite party, the presumption is that such facts are accepted. 896
Though evidence may be given by affidavit, the court may at the instance of either party, order
the attendance for cross-examination of the deponent. 897 The power of court to order attendance
of deponent for cross-examination upon application is discretionary. 898
Every affidavit must comply with Oaths Act, which sets out the form and manner in which the
oath may be taken and also the place and date of oath. 899 Affidavits in a main suit are confined to
such facts, as the deponent is able to his knowledge to prove. 900
Affidavits which offend the provisions of O.19 r 3 can however, be relied on by court on its
discretion court can accept and act on parts of an affidavit which are valid and reject what is
considered to be defective just as it does with oral evidence from witnesses. 901
As Justice Tsekooko stated that;
Whenever possible, a court which is faced with an affidavit containing some
inadmissible matter that are deliberately intended to mislead and that can be severed and
discarded without rendering the remaining part of the affidavit meaningless, court would
be justified in severing the offending part and using the rest of the affidavit. 902

Justice Tsekooko reiterated in Election petition 1 of 2006: 903

I held that even if some paragraphs of the affidavits might contain hearsay matters and even if a
deponent did not specify the source of certain information contained in the affidavit, those were
not sufficient grounds for declaring a whole affidavit defective or a nullity. In my reasons I
referred to such cases as M.B. Nandala Vs Fr. Lyding [1963] EA 706, Mayers & Another Vs
Akira Ranch (1969) EA 169, Zola Vs Ralli [1969] EA 691 and Rossage Vs Rossage [1960]
I.W.R. 249. At page 15, I stated
I think that the inclusion of the words belief or information. is in some cases superfluous
and does not render each affidavit invalid, at any rate not the whole of each affidavit.
In my opinion it would be improper in this petition to strike out wholly affidavits which are
found to contain so called hearsay evidence in some parts where the offending parts of the
894

Karim Hirji vs Pan African Insurance Co. [1990-91] KALR 184 192
Odongkara vs Kamada [1968] EA 210 also [1971] HCB 156
896
Massa vs Achen [1978] HCB 297
897
O.19 r 2
898
Premchand Raichand Ltd. vs Quarry Services Ltd. [1969] EA 514
899
S.5 &6 Oaths Act Cap 19 Affidavits must be sworn before any judicial officer, notary public
commissioner for oaths. Re Lukana Okoth [1975] HCB 204-205
900
O.19 r 3 (1)
901
Col (RTD) Dr. Besigye Kizza vs Museveni Yoweri & Electoral Commission Supreme Court Election
Petition No. 1 of 2001 (unreported)
902
Ibid
903
Rtd Col.Kizza Besigye vs Yoweri Museveni Kaguta & Electoral Comission Supreme Court Presidential
Election No.1 of 2006
895

211

same affidavit can be severed from the rest of the affidavit without rendering the remaining
parts meaningless.
An affidavit may be defective but not necessarily a nullity. 904
Where an affidavit is sworn and the deponent does not disclose his source of information, such
affidavit is defective and should not be acted upon. 905An affidavit must specify the different
sources of information of the deponent. However failure to distinguish what is based on the
deponents knowledge or belief is not fatal and is curable under Article 126(2) (e) 906.
However, where an affidavit is clearly made on personal knowledge, a reference to knowledge,
information and belief may be treated as mere surplusage.907The court should not act on an
affidavit, which does not distinguish between matters stated on information and belief and matters
to which the deponent swears from his own knowledge. Where averments are based on
information, the source of information should clearly be disclosed and, where the statement is a
statement of belief, the grounds of belief should be stated with particularity, so that court can
judge whether it is safe to act on the deponents affidavit. Failure to disclose the source of
information will normally render the affidavit null and void, and an affidavit is not evidence
unless it complies with these legal requirements. 908
The inconsistencies in affidavits cannot be ignored however minor since a sworn affidavit is not a
document to be treated lightly. If it contains an obvious falsehood then it naturally becomes
suspect909as it amounts to lying under oath as in contradictions and inconsistencies in oral
evidence.
Where a deponent swears an affidavit in a representative capacity, he must show that he has
authority to swear either as his advocate or holder of power of attorney or other authority. Where
there is no such authority the affidavit is defective and incompetent. 910
An affidavit is a sworn (written or printed) statement by a deponent, normally drawn by the
deponents counsel.
Unlike pleadings, an affidavit contains relevant and admissible evidence in a persuasive and clear
form.
Where a witness, on religious grounds is unable to give evidence by way of affidavit, he must
make a solemn affirmation do solemnly and sincerely affirm.
Formal requirements
(a)

State the full title of the action as titled in the cause or matter.

(b)

State the introductory averments of the deponent. The deponents name, address and
occupation or description should be given together with the declaration as to the truth.

904

Zola vs Ralli [1969] EA 691

Abdu Serunjogi vs Sekitto [1977] HCB 242 Bombay Flour Mills vs Patel [1962] EA 803
906
Eriasaferi Mudumba vs Wilberforce Kuluse Court of Appeal Civil Application No.34 of 1997
907
Nandala vs Lyding [1963] EA 706
908
Uganda Journalist Safety Committee & Others vs A.G Constitutional Petition No.7 of 1997
909
Bitaitana vs Kananura [1979] HCB 34
910
Kaingana vs Daboboubou [1986] HCB 59
905

212

(c)

Be expressed in the first person throughout.

(d)

Be divided into consecutively numbered paragraphs.

(e)

Give figures, not words, for dates, sums and other numbers.

(f)

Contain a jurat and be signed by deponent.

The jurat at the left-hand side end of the body of the affidavit is a signed endorsement by
commissioner for oaths or other official before whom the swearing was administered together
with the place and date of swearing.911
In addition, where it appears to the commissioner for oaths that the deponent is illiterate or blind,
he must further indorse in the jurat that;
(a)

He has read the affidavit to the deponent.

(b)

The deponent seemed to understand it.

(c)

The signature or mark of the deponent was made in his/her presence.

This is done in order to protect the illiterates, and their signatures must be verified and the
documents which are prepared for them. 912 An affidavit, which offends the provisions of the
Illiterates Protection Act, should not be relied upon at the trial. 913
The deponent must sign to the right of the jurat in the presence of the commissioner for oaths.
Where there is more than one deponent, it is sufficient to state that the affidavit was sworn by
both or (all) of the above named deponents.
Contain properly marked exhibits (where referred to in the affidavit and which must be annexed
thereto)
The Commissioner for Oaths before whom the affidavit was sworn must identify exhibits by
certificate in the same way as the cause or matter. However, failure to comply with requirements
of the commissioner for oaths of not serializing or marking with a seal according to the law does
not make the document and affidavit fatal as it is a technicality curable under Article 126 (2) e of
the Constitution since such failure does not occasion any injustice. 914So the failure or omission by
a commissioner for oaths, to verify and seal any annextures to an affidavit, which is itself
properly, commissioned to have the effect of invalidating the affidavit itself. 915
Whether or not those annextures have been securely sealed with the seal of the advocate who
commissioned the affidavits thereof does not offend rule 8 because they were not exhibits
produced and exhibited to a court during trial or hearing in proof of facts. In any case, the
annextures in the present case are not in dispute. Even if those annextures were detached, the
911

S. 5 & 6 Oaths Act

S.2 & 3 of Illiterates Protection Act
913
Katuntu Abdu vs Kirunda Kivejinja & Electoral Commission Election Petition No..of 2006
914
Egypt Air Corporation T/A Egypt Air Uganda vs Suffish International Food Processors Ltd and Pan
World Insurance Co. Ltd S.C.C.APP No. 14 of 2000 (unreported)
915
Uganda Corp Creameries Ltd &Henry Kawalya vs Reamation C.A.C.A No.44 of 1998
912

213

affidavits thereof would still be competent to support the notice of motion. Rule 8 though
mandatory is procedural and does not go to the root as to competence of affidavits. 916
Be indorsed with a note at the end showing who drew, filed and the date of swearing if not
already in jurat.
Although there is no formal requirement that the document should be named, it is a practice to
state AFFIDAVIT or to give an additional description of the purpose of the affidavit such as
AFFIDAVIT IN SUPPORT OF APPLICATION FOR STAY OF EXECUTION.
BODY
The body of the affidavit must contain relevant and admissible evidence in logical, sequential and
clear manner.
Paragraphs, which are irrelevant, scandalous or otherwise oppressive, will be struck out.
Matter is scandalous if it is indecent or offensive or is included for the purpose of abusing or
prejudicing the opponent.
An oppressive affidavit is one, which is unnecessarily long, complex and which is likely to
prejudice the opponent in the continued preparation of his case.
An affidavit must contain only such facts, as the deponent is able to state from his own
knowledge, in other words it must not involve hearsay evidence.
The second hand information should be clearly acknowledged by its source.
I am informed by X and verily believe to be true
a client stating matters of law should do so with these words I am advised and truly believe.
If convenient to do so, conclude with a statement of the order sought or remedy.
ALTERATIONS
An affidavit to be filed must not contain any alteration except where the person before whom it
was sworn has initialed the alteration and in the case of erasure, has initialed both erasure and rewritten in the margin.
Figure 2Copy of Affidavit
THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

MISCELLANEOUS APPLICATION NO. OF 2001
ARISING OUT OF CIVIL SUIT NO. 794 OF 2000
XYZ LTD . PLAINTIFF/APPLICANT
VERSUS
916

Ibid

214

ABC BOARD DEFENDANT/RESPONDENT

AFFIDAVIT
(In support of Notice of Motion under O.1 rr 3, 7 and 10 (2) and O.48 rr 1 and 3 of the CPR)
I, S C.C.K of c/o NKM Advocates, Plot 38 William Street, P.O. Box 7699 Kampala do hereby
solemnly make this oath and state as follows:
1.

That I am an advocate of the High Court of Uganda and all courts sub-ordinate thereto
and practicing in NKM Advocates the duly instructed counsel of the plaintiff and I affirm
this affidavit in that capacity.

2.

That sometime in 1977, the plaintiff bought property comprised in Plot No. 12/14 Bombo
Road from the defendant.

3.

That however, the purchase and sale nullified by the provisions of the Expropriated
Properties Act, 1982.

4.

That the plaintiff then sued the defendant in the above suit as per plaint hereto attached
and marked P.

5.

That consequently, the presence before court of the Attorney General will enable the
court to effectually and completely adjudicate upon and settle all questions involved in
the suit.

6.

The justice of the case requires that the Attorney General be added as the defendant in the
above mentioned suit.

7.

That I affirm this affidavit in support of an application to add the Attorney General as
defendant in the above suit.

I CERTIFY that what is stated herein above in paragraph 1 7 both inclusive is true and correct to
the best of my knowledge and belief.
SWORN at Kampala this
.. day of . 2001
by the said SC.C.K

_________________________
AFFIRMANT
BEFORE ME
_______________________________
A COMMISSIONER FOR OATHS

DRAWN AND FILED BY:

NKM ADVOCATES
PLOT 103 BUGANDA ROAD
KAMPALA

215

STATUTORY DECLARATION
According to S.6:A person wishing to depone outside Uganda to any fact for any purpose in Uganda may make a
statutory declaration before any person authorised to take a statutory declaration by the law of the
country in which the declaration is made. 917
Such a statutory declaration taken outside Uganda shall not be admissible in evidence unless it is
registered with the registrar of documents.918
However, a statutory declaration though not registered it is obviously not an illegal document, but
it is a mere technicality that is curable under Article 126 (2) e. 919
A statutory declaration shall be in the form specified in the second schedule to the Act. 920
DEPOSITIONS/WITNESS STATEMENT
The court in certain jurisdictions has power to receive evidence at trial in form of a deposition,
where it is in the interest of justice. The party who wishes to use such a deposition must give
reasonable notice to the opponent. Where the opponent does not consent to its use at trial, the
deposition may nevertheless be admitted where it is proved to be courts satisfaction that the
deponent is dead, or out of jurisdiction of the court, or due to sickness or infirmity is unable to
attend the trial.
Witness statements are more like depositions used in the United States civil justice system while
written statements are used in United Kingdom and Australia. 921They are used as evidence and
examination in chief and the witness may only appear for cross-examination to test his/her
credibility before court.
ADJOURNMENTS
The rules require that, once hearing of a case has commenced all witnesses should give their
evidence from day to day until they have all testified. However, this is not what happens in the
court. Court may at any stage of the suit if it thinks expedient in the interest of justice from time
to time adjourn the hearing of the suit.922
An adjournment is not granted as of right, but is granted for sufficient cause. It involves the
exercise of discretion by the court and this must be used judicially. 923 An adjournment can be
denied if it will occasion an injustice. If the application is vague and half-hearted the trial judge
917

Statutory Declarations Act Cap 22

S.6 (3) ibid
919
Col (RTD) Dr. Besigye Kizza vs Museveni Yoweri & Electoral Commission Supra n
920
S.4 of Statutory Declarations Act
921
Mercer vs Chief Constable of the Lancashire Constabulary [1991] 2 ALL.ER 504
922
O.17 r 1 Busicom System Ltd. vs Kirya [1991] HCB 67
923
Shaban vs Karada Co. Ltd. [1973] EA 497 Re Yates Settlement Trusts [1954] 1 WLR 564 Rose
Humbles [1972] 1 WLR 33
918

216

is justified in refusing the adjournment. 924However, the effect of denial of an adjournment is

tantamount to condemning a party without a hearing and is in breach of the constitutional right to
a fair hearing.925
Court can adjourn for any reason, which in its discretion is sufficient. If a new matter is raised at
the trial, which catches a party unaware, an adjournment if applied for should be granted to the
party concerned to prepare his case to meet this new matter.926
An application for an adjournment must be made by counsel before court. Applications for
adjournment by letter would not be accepted under normal circumstances. 927 Also an application
cannot be made by telephone, counsel applying should brief another counsel to hold brief for him
for purposes of adjournment.928
Sometimes, the court adjourns the case without giving a specific date. When this happens, the
plaintiff is expected to be vigilant and secure a date and then serve the defendant with a hearing
notice. If the plaintiff fails to have his/her case fixed in time, then the defendant can go ahead and
have it fixed. After fixing, the defendant may apply to the court for the case to be dismissed for
want of prosecution.
However, it is important to note that uncontrolled adjournments arise out of the fact that cases are
fixed without consultation resulting in conflicting schedules on the part of the lawyers and
litigants
Where on the day to which the hearing of the suit is adjourned, the parties or any of them fails to
appear, the court may proceed to dispose of the suit in one of the modes under O.9. 929

Failure to file a defence

When the defendant does not file a defence on or before the day fixed in the summons, the suit
may proceed as if such party had filed a defence. 930
A party who does not file a defence is deemed to have admitted the allegations in the plaint. 931
Where neither party appears when the suit is called on for hearing the court may make an order
that the suit be dismissed.932
This rule applies where neither party appears when the case has been set down for hearing. 933
924

Birungi Wilson vs Akamba (U) Ltd. SCCA 12/94 [1995] 1 KALR 50

Nuru vs Cresent Transportation Ltd SCCA No.6 of 2002
926
Salongo vs Nantengolola [1976] HCB 290
927
Acaali Manzi vs Nile Bank Ltd. CS No. 87/93 [1994] KALR 123 Shaban vs Karada Co. Ltd. Supra n
Sherif Yusuf vs Phillip Kioko [1951] 24(2) KLR 75
928
Bauman (U) Ltd vs Serwanga [1975] HCB 86
929
O.17 r 3 Jolly Tugumisirize vs Zonabia Zinabweine Beinamaryo CACA No.16 of 2002
930
O.9 r10
931
Serunjogi vs Katabira [1988-90] HCB 1480 Cleaner Home Ltd. vs British Tutorial College (Africa)
Ltd. [1975] EA 323
932
O.9 r 17
933
Nekyon vs Sakundh HCCS 575/69 (unreported)
925

217

Where the plaintiff appears and the defendant does not appear, when the suit is called for hearing
the court may proceed ex-parte. 934 The rule does not provide for dismissal of the plaintiffs case
before hearing evidence.935 If a plaintiff is proceeding ex-parte he still has to prove his case on
the balance of probability.936
Where the defendant appears, and the plaintiff does not appear when the suit is called on for
hearing, the court shall make an order that the suit be dismissed unless the defendant admits the
claim or part thereof.937
However, the mere presence of a party at the hearing is sufficient to constitute appearance 938and
plaintiff does not mean only the plaintiff in person but may include his advocate. 939 So if both
plaintiff and counsel are absent and the defendant present, suit should be dismissed with costs. 940
In some cases before the suit is dismissed under this rule, the defendant has to prove service of
hearing notice.941
Court may dismiss the suit for want of prosecution. Where the plaintiff does not set down the suit
for hearing, the defendant may set down the suit for hearing or apply to the court to dismiss the
suit for want of prosecution. 942 The court should consider whether the plaintiff or his advocate
was to blame for the delay.943 However, the suit cannot be dismissed under this rule once the suit
has been set down for hearing.944
The court may order the suit to be dismissed when no steps are taken for two years to proceed
with the case.945 Such a step that is required to be taken must be on record such as interlocutory
application.946 Parties to the suit cannot move court to dismiss the suit under this rule 947but court
on its motion without notice to either party can dismiss the suit. 948 However, the dismissal under
this rule does not preclude the alternative remedy of re-institution of the suit under the inherent
powers of court.949

934

O.9 r 20
Lima vs Opoka [1976] HCB 324 Bisuti vs Busoga D.A. [1970] HCB 37 38
936
Kityo vs Kaddu [1982] HCB 58
937
O.9 r 22
938
Shah Kachra Merag vs Gandhi & Co. [1957] EA 466
939
Finaughty vs Prinsloo [1958] EA 657Salem A.H. Zaid vs Fraud H. Humeidan [1960] EA 92
940
Bauman (U) Ltd. vs Serwanga [1975] HCB 75 76
941
Jaffer vs Seggane [1972] 2 ULR 109
942
O.17 r 5 Musoke vs Musoke [1988-90] HCB 98
943
Cronta vs Afro-Trade Promoters Ltd. [1978] HCB 238
944
Laiji & Sons vs Hassinali Devji [1969] EA 439
945
O.17 r 6
946
Victory Construction Co. vs Duggal [1962] EA 697
947
Lalji & Sons vs Hassinali Devji [1969] EA 439
948
Njiramakwere vs Bitariho [1973] 1 ULR 66
949
Rawal vs Mombasa Hardware Ltd. [1968] EA 392
935

218

CHAPTER SIXTEEN
JUDGEMENT AND DECREES
At the conclusion of the hearing, the court gives its Judgement. In suits where a hearing is
necessary, the court, after the case has been heard, shall pronounce Judgement in open court,
either at once or on some future day, of which due notice shall be given to the parties or their
advocates.950
A judgement means the statement given by the judge on the grounds of a decree or order.951 A
judgement is further defined as a decision or sentence of a court in a legal proceeding or the
reasoning of the judge, which leads him to his decision.952
The terms Judgement and Order in their widest sense may be said to include any decision
given by court on a question or questions at issue between the parties to a proceeding properly
before the court.953
The distinction between a Judgement and an order is that the former is a final decision in an
action, while the latter is an interlocutory decision, though it may have the effect of ending the
action.954
Final judgements and interlocutory judgement
A Judgement, which determines the principal matter in question, is final. Such a Judgement is
obtained in all action by which a previously existing liability of the defendant to the plaintiff is
ascertained or established. Also such a Judgement can be obtained in an action by which the
question whether there was a pre-existing right of the plaintiff against the defendant is finally
determined in favour of either of the plaintiff or of the defendant. 955
A judgement or an order which does not deal with the final rights of the parties, but either is made
before Judgement and gives no final decision on the matters in dispute, but is merely on matter of
procedure or is made after Judgement and merely directs how the declarations of right already
given in the final Judgement are to be worked out. However, an interlocutory judgement though
not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it
deals.
There are four different tests of ascertaining the finality of a Judgement.
i)

Was the order upon an application such that a decision in favour of either party would
determine the main dispute?956

ii)

Was it made upon an application upon which the main dispute could have been decided?

950

O.21 r 1
S.2 of Civil Procedure Act (Interpretation)
952
Osborns Concise Law Dictionary 7th Edition by Roger Bind (1983)
953
Halsburys Laws of England 3rd Edition Vol.22 Para 1603
954
Sheik Binti Ali vs Halima Binti Said [1959] EA 500
955
Re Riddel Ex-parte Earl Strathmore (1888) 20 QBD 512, Re Chinery, Ex-parte Chinery (1884) 12 QBD
342
956
Salaman vs Warner [1891] 1 QB 734
951

219

iii)

Does the order made, determine the dispute?957

iv)

If the order in question is reversed would the action have to go on?

An Ex-parte Judgement
An ex-parte Judgement obtained by default of defence is by its nature not a judgment on merit
and it is only entered because the party concerned has failed to comply with certain requirements
of law. The court has power to revoke such judgement, which is not pronounced on merit of the
case or by consent but entered especially on failure to follow requirements of the law.958
Consent Judgement
If either party is willing to consent to a judgment or order against himself, or if both parties are
agreeable as to what the judgement or order ought to be, due effect may be given by the court to
such a consent.
As a general rule attendance before the court is necessary for the purpose of obtaining a
Judgement by consent. Such judgement may be entered by the registrar.959
A Consent Judgement derives its legal effect from the agreement of the parties. It may only be
set-aside on the same ground as those on which contract would be set aside. A consent judgement
is governed by the ordinary principles of contract and can only be set aside only in circumstances
that would afford a good ground for varying or rescinding a contract between parties. 960
A Consent Judgement may only be set aside for fraud, collusion or for any reason, which would
enable the court to set aside an agreement. 961A consent judgement can act as an estoppel which
can be raised if fresh proceedings are brought alleging matters that are encompassed by the
compromise.
Where a plaintiff has obtained Judgement irregularly, the defendant is entitled ex debito justitiae
to have such Judgement set aside.962
Persons authorized by the court to defend an action on behalf of others having the same interest
cannot consent to the Judgment against them. 963 A next friend or guardian ad litem of an infant or
person of unsound mind cannot consent without the approval of the court. 964
In all suits to which any person under disability is a party, any consent or agreement as to any
proceeding shall, if given or made with the express leave of the court by the next friend or
guardian for the suit have the same force and effect as if that person were under no disability and
had given such consent or made such agreement 965.
957

Isaacs & Sons vs Salbstein [1916] 2 KB 139 at 147

Henry Kawalya vs J. Kinyankwazi [1975] HCB 372 Hunt Allied Bakeries Ltd. [1956] 3 ALLER 513
959
O.50 r 2 Charles James Mark Kamoga &Anor vs A.G &ULC CACA No.74 of 2002 decided in 2004
960
Hirani vs Kassam (1952) 19 EACA 131
961
Brooke Bond Liebig T ltd. vs Mallya [1975] EA 266 Hirani vs Kassami (1952) 19 EACA 131
962
Anlaby vs Praetorius (1888) 20 QBD
963
Kafuma vs Kimbowa Builders & Contractors [1974] EA 91
964
O.32 r 7
965
S.94 Civil Procedure Act
958

220

The court cannot set aside the consent judgement when there was nothing to show that counsel
for the applicant had entered into it without instructions. Even if the advocate had no specific
instructions to enter a consent judgement but only had general instructions to defend the suit, the
position would not change so long as counsel is acting for a party in a case and his instructions
have not been terminated, he has full control over the conduct of the trial and has apparent
authority to compromise all matters connected with the action. 966
Who makes the Judgement?
As a general rule, the judge who heard the matter must make a Judgement and such judge shall
read such Judgement. The judgement must be read in open court 967. However in certain
circumstances any judge may pronounce a Judgement written and signed but not pronounced. 968In
practice, the Judges delegate their powers to the registrars of the Court to read their judgements.
Every Judgement is supposed to be signed,969however some courts have held that failure to sign a
Judgement, which had been pronounced is not significant. 970 The registrar, if so directed by a
judge of the High Court may pronounce a Judgement written and signed by a judge of the High
Court and this is normally the practice due to work overload.
Form and Contents of Judgement
A Judgement in its final shape usually contains, in addition to formal parts;
(a)

a preliminary or introductory part, showing the form of the application upon which it was
made, the parties appearing, any consents, waivers, undertakings or admissions given or
made, so placed as to indicate whether they relate to the whole Judgment or only to part
thereof, and a reference to the evidence upon which the Judgement is based.

(b)

A substantive or mandatory part, containing the order made by court. Where this latter
part is not of simple character, declarations of rights will as a rule come first and
consequential directions, for example for payment of money, delivery or sale of property,
taxation and payment of costs.

Judgement in defended suits shall contain a concise statement of the case, the points of
determination, the decision thereon and the reason for such decision. 971 When issues were
framed, the court must state its decision on every issue 972unless the resolution of one will be
sufficient for the whole decision of the suit.973

966

B.M Technical Services vs Francis X Rugunda [1997] HCB 75

Gillanis Modern Bakery vs Kuntner (1954) 21 EACA 123 contrast with Ramjibhai vs Rattan Singh
(1953) 20 EACA 71 where court held that failure to read judgement in open court is merely procedural and
thus curable.
968
O.21 r 2
969
O.21 r 3
970
Matembe vs Matemba [1968] EA 646 Caroline Mboijana &Others vs James Mboijana SCCA No.3 of
2004 [2005]2 ULSR 1
971
O.21 r 4
972
Selle vs Associated Motor Boat Co. Ltd. [1968] EA 123
973
O.21 r 5
967

221

DECREE
A decree means a formal expression of an adjudication which so far as regard the court
expressing it, conclusively determines the rights of the parties with regard to all or any of the
matters in controversy in the suit and may be either preliminary or final. It shall be deemed to
include the rejection of a plaint.974 A decree is further defined to mean an order of court
pronounced on the hearing of a suit.975
A decree is derived from the Judgement and it must bear the date of the day on which the
Judgement was delivered.976
The successful party in a suit has a duty to extract a decree and submit it for approval to the other
party.977 However, failure to submit the decree to the other party for approval is not fatal. 978
Likewise, an unsuccessful party wishing to appeal may also extract a decree for purposes of the
appeal.979
When the parties disagree, the registrar shall verify if the decree is drawn up in accordance with
the Judgement shall sign and seal a decree accordingly. If the registrar and the parties do not
agree, the judge who pronounced the Judgement shall settle the matter.
Figure 3Copy of Decree

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA
CIVIL SUIT NO. ______ OF 2000
ABC CO. . PLAINTIFF
VERSUS
X DEFENDANT
DECREE
This suit coming on this 5th day of April 2000 before JUSTICE RICHARD OKUMU WENGI in
the presence of MR. YUSUF Counsel for the plaintiff and WANOGLO Counsel for the
defendant.
IT IS ORDERED AND DECREED that;
i)

Judgment on admission be entered in the sum of Shillings Twenty two million, one
hundred ninety seven thousand three hundred (Shs.22,197,300/=)

974

S.2 Civil Procedure Act

Osborn Law Dictionary Supra n
976
O.21 r 7 (1)
977
Kazzora vs Rukuba [1992] III KALR 51 57 (SC)
978
Eastern Province Bus Co. vs Bibi [1971] 1 ULR 88
979
Asadi Weke vs Livingstone Ola [1985] HCB 50 52
975

222

ii)

The defendant shall pay the aforesaid amount in installments of Shillings Four million
(Shs.4,000,000/=) per month effective 5th May, 2000.

iii)

Interest will accrue on the above amount from the date of filing at court rate.

iv)

In the event of any default by the defendant to meet the installments as herein ordered.
Then in such event the whole decretal sum or any amount outstanding will become due
and recoverable.

GIVEN under my Hand and Seal of the Court this . day of . 2000.
_________________________________
JUDGE
EXTRACTED BY:
NKM ADVOCATES
PLOT 103, BUGANDA ROAD
P.O. BOX 7699
KAMPALA
THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
COMMERCIAL DIVISION
CIVIL SUIT NO. 530 OF 2004
WERE FRED .PLAINTIFF
VERSUS
KAGA LIMITED ...DEFENDANT
DECREE
This Suit coming on this 23rd day of December 2005 before HIS LORDSHIP JUSTICE YOROKAMU
BAMWINE in the presence of M/s Namutebi Alziik for the Plaintiff and in absence of the Defendant and
its Counsel
IT IS ORDERED AND DECREED that:The Defendant pays the Plaintiff:a)

Special damages Shs. 6.752.000/=

b)

General damages Shs. 1.000.000/=

c)

Interest on (a) and (b) at 30% from the date of Judgement till payment in full.

d)

Costs of the suit

e)

Interest on (d) at Court rate from the date of taxation till payment in full.

223

We approve
______________________________

M/s S.A Advocates

(Counsel for the Plaintiff)

________________________________

M/s K.MCo. Advocates

(Counsel for the Defendant)

GIVEN Under my Hand and the Seal of this Honourable Court this ..day of
2006
___________________________________
REGISTRAR / DEPUTY REGISTRAR

Extracted by
M/s Ssekaana Advocates
Plot 38 William Street
P.O.BOX 8911
Kampala.
Where the Judgment is for the payment of money, the court may, for any sufficient reason at the
time of passing the Judgment, order that payment be postponed or be by installments or without
interest.980 The onus is on the defendant to show that he is entitled to indulgence of court and
interests of creditor as well as those of the debtor have to be considered.
Mistakes in Judgement
The court will correct a slip which was due to a failure to transcribe its intention properly: It will
not correct what was a mistake of its own in law or otherwise.
Clerical or arithmetical mistakes in Judgements, decrees, or orders, or errors arising therein from
any accidental slip or omission may any time be corrected by the court of its own motion or on
the application of any of the parties.981
This rule cannot be invoked to rectify an omission to make any order as to costs. 982
The court has power under this section to correct clerical mistakes even after payment of costs. 983
Similarly the Judicial Committee of the Privy Council held that the slip rule had been properly
used to correct a Judgement for damages by including an order for payment of interest. 984
The court has discretion not to correct its Judgement even where it is competent to do so, and it
may exercise this discretion where the rights of third parties have intervened or where something
has happened since the date of Judgement, which makes a correction inexpedient or
inequitable.985

980

O.21 r 11 Allidina vs Allidina [1961] EA 565

S.99 Civil Procedure Act, Rule 36 The Judicature (Court of Appeal Rules) Directions, Rule35 The
Judicature (Supreme Court Rules) Directions Premachandra Shenoi &Anor vs Maximor Oleg Petrovich
CACApp 88 of 2003 arising from CACA No.24 of 2002
982
Quick services Stores vs Thakrar [1958] EA 700
983
EA Plans vs Smith [1974] HCB 97
984
Tak Ming Co. Ltd. vs Yee Sang Metal Supplies Co. [1973] 1 WLR 300
985
Moore vs Buchanan [1967] 1 WLR 1341
981

224

In the case of Raniga vs Jivraj Spry JA noted that:986

A court will, of course, only apply the slip rule where it is fully satisfied that it is giving
effect to the intention of the court at the time when judgement was given or, in case of a
matter which was overlooked, where it is satisfied, beyond doubt, as to the order which it
would have made had the matter been brought to its attention.
Judgment valid until set aside
Once the Judgment of a competent court has been achieved, it remains valid and must be obeyed
by parties affected until set aside by a competent authority, usually a court with power to take
appeals from the court that has pronounced the Judgment.
It is a general rule of law that no court has power to rehear, alter or vary any judgment or order
after it has been entered and drawn up.
However, this rule is subject to several exceptions i.e. slip rule. When a judgment has been
obtained as a result of fraud practices by one of the parties on the court. In such a case, the trial
court has jurisdiction to set aside its own judgement, which has been obtained by fraud, but not
that of another court.987
The court however, should be slow to exercise jurisdiction to set aside Judgments on the ground
of fraud, unless the fraud is well established. Apart from this, the court will not set aside its
judgment, which has been obtained as a result of a mistake by one of the parties.
It is imperative to note that court through its inherent powers can interfere with its own judgment:
1.

Where there has been an accidental slip in the Judgment as drawn up, in which case the
court has the power to rectify it.

2.

When the court itself finds that the Judgment as drawn up does not correctly state what
the court actually decided and intended.988

3.

When the judgment is nullity.989 This is where it is obvious that the court was misled into
giving Judgement under the mistaken belief that the parties consented to it, there is an
inherent power in the court to set aside such Judgement in error, and the court is entitled
to do so ex debitio justitiae.990
When the substantive Judgment is not being altered but only the title of the action, it is
not to my mind quite plain that this court has ample jurisdiction to correct any misnomer
or misdirection at any time whether before or after Judgment.991

Judgement to be obeyed without delay

986

[1965] EA 700 at 703

Flower vs Lloyd (1877) 6 CHD 542 561
988
Harrison vs Harrison & Others [1955] 1 ALL.ER 185
989
Okoli Ojiako vs Onwuma Ogueze [1962] 1 ALL NLR 58
990
Kafuma vs Kimbowa Builders and Contractors [1974] EA 91
991
Anlaby vs Praetorius (1888) 20 QBD
987

225

The judgement of a court of competent jurisdiction takes effect immediately upon delivery. A
person directed by a decree or order to pay money or to do any other act is bound to obey the
decree or order without demand for payment or performance and if no time for compliance is
expressed he is bound to do so immediately after the decree or order has been made, except as to
costs which may still require to be taxed. The court may however enlarge the time for
compliance with a judgement by subsequent order.
However, it should be noted that as a general rule a person who has been sued in respect of
alleged wrongful act is free to continue or complete his wrongful act until the suit has ended
adversely to him unless the court has specifically enjoined him not to continue or complete the
alleged wrongful act.
FOREIGN JUDGEMENTS
Where a decree has been obtained or entered in the Supreme Court of Kenya or in the High Court
of Malawi or of Tanzania, or any court subordinate to any of those courts, for any debt, damages
or costs, and where it is desired that the decree shall be executed upon the person or property of
the defendant in Uganda, the decree may be transferred to the High Court or to any of the court
subordinate to it for execution and the provisions of the Civil Procedure Act shall apply as if the
decree had been obtained in Uganda.992
When any warrant is issued by the Supreme Court of Kenya or the High Court of Malawi or of
Tanzania, or by any court subordinate to any such court for the arrest of a defendant in a civil case
either before or after judgement, a judge of the High Court or a Magistrate shall have power(a) to endorse and execute the warrant; or
(b) to issue before that endorsement a provisional warrant for the arrest of the
defendant, upon receipt of such telegraphic or other information and in such
circumstances as would in his or her opinion justify the issue of a warrant in a
civil case within his/her jurisdiction,993
In addition, there is another legislation that provides for the enforcement in Uganda of
judgements given in foreign countries, which accord reciprocal treatment to judgements given in
Uganda and also facilitate in foreign countries of judgements given in Uganda.994
The Minister, if he/she is satisfied that, in event of benefits conferred by this Part of this Act
being extended to Judgements given in the superior courts of any foreign country, substantial
reciprocity of treatment will be assured as respects the enforcement in that foreign country of
judgements given in the superior courts of Uganda, may by statutory order direct(a) that this Part of this Act shall extend to that foreign country; and
(b) that such courts of that foreign country as are specified in the order shall
be deemed superior courts of that country for the purposes of this Part of
this Act.995
992

S.1 The Judgements Extension Act Cap 12-This Act may be extended to any other Commonwealth
country by Statutory Instrument/Order (refer to Foreign Judgements (Reciprocal)(Grenada) Order SI 36 of
2002
993
S.2 1bid
994
The Foreign Judgements (Reciprocal Enforcement) Act Cap 9
995
S.2 Ibid

226

A person, being a judgement creditor under a judgement, may apply to the High Court at any time
within six years after the date of judgement or, where there have been proceedings by way of
appeal against the judgement, after the date of the last judgement given in those proceedings, to
have the judgement registered in the High Court, and on any such application the court shall,
subject to proof of the prescribed matters and to the other provisions of this Act, order the
judgement to be registered;996
Procedure
An application for registration of foreign judgement in the High Court is made to ex-parte to
court by notice of motion supported by an affidavit.997The affidavit shall contain-998
(a) a statement made according to the best knowledge and belief of the deponenti.
that the applicant is entitled to enforce the judgement;
ii.
that the judgement has not been satisfied in part and if so satisfied in part the
amount remaining un paid;
iii.
that the judgement can be enforced in by execution in the original court;
iv.
that the judgement if registered would not be liable to be set aside under the Act;
(b) a statement of the amount of interest, if any, which has become due since the time of
registration.
(c) a statement as to the full name, title, trade or business and the usual or last known place
of residence or business of the judgement creditor and the judgement debtor respectively
as far as known to the deponent; and
(d) a statement of the amount payable under the judgement expressed in Uganda shillings
calculated at the rate of exchange.
The affidavit shall be accompanied by a certified copy of the judgement issued by the original
court with a translation if necessary and such other evidence as required under the rules. 999
Where a judgement has been obtained in a superior court in the United Kingdom or the Republic
of Ireland, the judgement creditor may apply to the High Court, at any time within twelve months
after the date of judgement, or such longer period as may be allowed by the court, to have the
judgement registered in the court, and on any such application the court may, if in all the
circumstances of the case it thinks just and convenient that the judgement should be enforced in
Uganda, and subject to this section, order the judgement to be registered accordingly. 1000
The application for leave to have a judgement registered under this Act shall be made ex-parte or
by summons to a judge and such application shall be supported by an affidavit of facts exhibiting
the judgement and state that to the best of the information and belief of the deponent the
judgement creditor is entitled to enforce the judgement. 1001The summons (if any) for leave to
register shall be by originating summons. 1002
Some of the countries to which this Act is extended include; 1003
996

S.3 Ibid Transroad Ltd vs Bank of Uganda [1996] 1 KALR 103(HC)/[1996] VI KALR 42(SC)
Rule 4(1,2) The Foreign Judgement (Reciprocal Enforcement) Rules SI 9-1
998
Rule 4 (3) ibid
999
Rule 4(4) ibid
1000
S.2 The Reciprocal Enforcement of Judgements Act Cap 21
1001
Rule 2 &3 of The Reciprocal Enforcement of Judgements Rules SI 21-1
1002
Rule 5 Ibid
1003
Rule 2 The Reciprocal Enforcement of Judgements (Extension) Order SI 21-2
997

227

Botswana, Lesotho, Mauritius, New South Wales, Seychelles Sri Lanka Swaziland

REMEDIES AFTER JUDGMENT

Stay of execution
Every judgment or decree of a court of competent jurisdiction takes effect immediately upon
pronouncement and every court has an inherent power to proceed to enforce such judgment or
decree at once.
Although, the court will not without good reason delay a successful plaintiff in obtaining fruits of
his judgment, it has power to stay execution if justice requires that the person against whom
judgement is to be enforced should have this protection.
The court has inherent jurisdictions over all judgments or orders that it made, under which it can
stay in all cases.1004
Where a suit is pending in any court against the holder of a decree of such court in the name of
the person against whom the decree was passed, the court may, on such terms as to security or
otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided. 1005
The court of appeal or the court below may stay execution pending an appeal, but mere service of
notice of appeal does not operate as a stay.1006
A court of appeal may order the stay of execution of the Judgment of a lower court, but before it
does so, the lower court has inherent powers to proceed to enforce its own judgment regardless of
the fact that an appeal against the judgment is pending before a higher court.
If the grounds for applying for a stay are that an appeal is pending, the applicant will need to
show not only that the appeal has a real prospect of success, but usually that if a stay was not
granted and decree executed, the appellant would have no reasonable prospect of recovering it. 1007
The present approach of the courts may be more flexible in that if an appellant can say that
without a stay of execution he will be relined and that he has an appeal which has some prospect
of success, that is a legitimate ground for granting a stay of execution. 1008
Courts ought to be flexible and that it should be exercised in accordance with common sense and
a balance of advantage, but the starting point was still that there had to be a genuine appeal.
Procedure of stay of execution
The practice the court has adopted is that in general the application for stay of execution should
be made informally to the judge who decided the case when judgment is delivered. The judge
may direct that formal application be presented on notice.

1004

O.43 r 4 Singh vs Runda Coffee Estates Ltd. [1966] EA 263

O.22 r 26
1006
National Pharmacy Limited vs Kampala City Council [1979] HCB 132 (CA) O.43 r 4
1007
Barker vs Lavery (1885) 14 QBD 769
1008
Linotype Hell Finance Ltd. vs Baker [1992] 4 ALL.ER 887
1005

228

The jurisdiction of court to stay execution where there is a pending suit stems from S.98 of the
Civil Procedure Act, which preserves the inherent powers of court rather than under O.22 r 26. A
further notice presented under O.52 r 1 does serve as a remedy in addition to providing a
procedure.1009
It is possible and proper to apply for setting aside and staying an execution in one application as
long as the application refers to the correct provisions of the Civil Procedure Rules. 1010
The High Court has inherent power to stay its orders including those for execution, irrespective of
whether there is an appeal to the Court of Appeal. The Court of Appeal can order a stay of
execution in exercise of the jurisdiction exercised by the High Court. 1011
An order for stay of execution must only be granted if it will serve a useful purpose.
Automatic stay of execution
There are circumstances, which have the effect of a stay.
-

An order for winding up a company operates as a stay of execution on judgments against the
company.

An order for an interpleader has an effect of stay.1012

A garnishee order absolute made against a Judgment debtor and operates as a stay against the
judgment creditor,1013but a garnishee order obtained against a debt of the judgment debtor is
not a stay against the judgment debtor so long as the garnishee has not paid under the
order.1014

When a creditor who has obtained a judgment takes an order for payment in installments, he
cannot afterwards issue execution.1015

A stay of execution only operates to prevent the judgment creditor from putting into operation the
legal process of execution and does not affect any rights or remedies exercisable outside court 1016
reason for depriving a successful decree holder from obtaining the fruits of his judgment.
The court has an absolute and unfettered discretion as to the granting or refusing a stay; and as to
the terms upon which it will grant it. When granting a stay of execution pending an appeal a
court should not impose a condition that a sum to be paid to a party is to be irrecoverable in the
event of the appeal succeeding unless that sum is less than the party will recover in any event. 1017

1009

TMK vs Businge HCMISC. APP. No. 2 of 1992 [1992] VI KALR 82

Magem Enterprises Ltd vs Uganda Breweries Ltd. HCCS No. 462 of 1991 [1992] V KALR 109
1011
Mugenyi & Co. Advocates vs National Insurance Corporation CACA No.13 of 1984 [1992] KALR 82
1012
Re Follows, Exparte Follows (1895) 2 QB 521
1013
Re Conman, Exparte Hyde (1888) 20 QBD 690
1014
Re Revison, Exparte Greaves [1913] 2 KB 300 Re H.B. [1904] 1 KB 94
1015
Montgomery & Co. vs De Bulmes [1898] 2 QB 420
1016
Clifton Securities Ltd. vs Huntley [1948] 2 ALLER 283
1017
Bloor vs Liverpool Derricking and Carrying Co. Ltd. [1936] 3 ALLER 399. Doyle vs White City
Stadium [1935] 1 KB 110
1010

229

The principle of law to be followed in applications to stay of execution is whether substantial loss
would arise from not granting the same and whether the dictates of justice demand so. 1018
When an order of the High Court to stay on terms has been passed and entered, subsequent
variation of those terms can only be ordered by the Court of Appeal. 1019
Payment in installments
The judgment debtor may after the passing of judgment apply to court with consent of the decree
holder, to pay the decretal sum in installments. 1020 An order for payment of installments after
judgment and without consent of decree holder is a nullity.1021
When an order for payment by installments has been made, there ceases to be a present debt for
the whole amount of judgment debt, but a debt accruing by the amount of the installment per
stipulated period and execution cannot issue in respect of the total amount remaining unpaid in
the absence of any order to that effect. 1022
A judgment debtor cannot bring an application asking the court to rescind its previous orders for
payment by installment of a judgment debt nor for a new order to reduce the amount of the
installments. It is only the judgment creditor who can move the court to rescind its previous
order where it has come to his knowledge that the judgment debtor is in position to satisfy the
judgment debt at once.1023
OBJECTOR PROCEEDINGS
Upon execution by way of attachment of property, which allegedly does not belong to the
Judgement debtor, such attachment can be contested where the claimant or objector maintains
that the property is not liable to such attachment. This power is extensive, and any claim or
objection raised, must be investigated.
The rationale for this rule is mainly to protect third parties against improper and misconceived
executions. Objector proceedings are in effect intended to enable holders of equitable interest to
preserve their interest or entitlement in absence of the legal or registered right e.g bonafide
occupants of land.
Where any claim is preferred to, or any objection is made to the attachment of, any
property attached in execution of a decree on the ground that the property is not liable to
attachment, the court shall proceed to investigate the claim or objection with the like
power as regards the examination of the claimant or objector1024

1018

Nandaula vs Uganda Development Bank Ltd. HCCA No. 47 of 1992 [1992] 1 KALR 97
Nganga vs Kimani [1969] EA 67
1019
Re V.G.M. holdings Ltd. [1941] 3 ALL.ER 417 Harrison vs Harrison [1955] 1 ALL.ER 185
1020
O.21 r 12 (2) Computing Desin Construction vs Kenneth Matende HCCS No. 785 of 1999 see copy of
decree Supra
1021
Uganda Paltries Ltd. vs Kaggwa MB No.42 of 1964
1022
Kwabena Oduro vs Daniel Francis (1952) 14 WACA 46
1023
Hansa (Nigeria Trading & Motor Company) vs Samuel Joseph (1966-67) 10 ENLR 136
1024
O.22 r 55

230

What has to be decided under this order was set out thus; 1025
What is to be investigated is indicated by the next following rules, viz r.59, r.60, and
r.61.The question to be decided is, whether on the date of attachment, the judgementdebtor or objector was in possession, or where the court is satisfied that the property was
in the possession of the objector, it must be found whether he held it on his own account
or in trust for the judgement-debtor. The sole question to be investigated is, thus, one of
possession. Questions of legal right and title are not relevant, except so far as they may
affect the decision as to whether the possession is on account of or in trust for the
judgement-debtor or some other person.
To that extent the title may be part of the inquiry. But ultimate questions of trust, or
complicated questions like benami nature of a transaction, are not within the scope of the
inquiry and are not intended to be gone into.
The court is bound to order the release of the attached property if it finds that possession in the
claimant on his/her own account, even if there is title and disposing power remaining in the
judgement debtor.
The main basis of objection under this rule concerns possession, not title although a suit under
this rule goes to title, not merely possession1026 and all the objector must show is that he was in
possession of the property at the time of attachment for which he claims an interest. 1027
It is important to note that rule 55 must be read hand in hand with rule 57 which contains the
grounds that the objector or claimant must rely on. 1028
The effect of the objector proceedings if successful is to release the property from attachment. If
the proceedings fail, the attachment proceeds as if it had not been challenged in the first place.
However, where the issue of title is unresolved then a suit can be brought under rule 60 to
countenance issues of title.
Objector proceedings must be brought with all promptitude otherwise they will fail if any delay
was deliberate or reckless. There is no delay when there is no evidence that the person affected is
aware of the date of attachment or the date of subsequent sale. 1029
If an objector losses an application for objector proceedings then the only alternative left to for
him was to file a suit to establish his right, which he claims to the property in dispute as provided
for under O.22 rule 60 and not an appeal.1030

1025

Chitaley and Raos Code of Civil Procedure 6th Edn p.1880 as cited in the case of Hariral &Co. vs
Buganda Industries [1960] EA 318
1026
Patel vs Patel [1958] E.A 743
1027
Kasozi Ddamba vs Male Construction Services Co. [1981] HCB 26
1028
Sokimpex Interstate (U) Ltd vs Eurafro General Import & Export Co.Ltd [1981] HCB 73
1029
Lawrence Muwanga vs Stephen Kyeyune S.C.C.A 12 of 2001
1030
Hajji Kyanda Shaban vs Deogratius Kamya CACA No.26 of 2002 [2005] 2 ULSR 81

231

CHAPTER SEVENTEEN
EXECUTION OF DECREES
Execution in its widest sense signifies the enforcement of or giving effect to the judgement or
orders of courts of law. Execution is the process of realising the fruits of a judgement by
enforcing the decree against the unsuccessful party through any one or more of the various modes
of execution as by law prescribed.
Having obtained a judgement in his favour, the successful party may need to consider how such
judgement can be enforced. If the defendant is an insurance company, bank or other large
reputable institution, it will almost invariably satisfy the judgment promptly and enforcement will
not be necessary. However, in other cases enforcement will be necessary where there is failure to
obey the order of court.
A decree shall be executed within 12 years from its date 1031.
The court may on the application of the decree holder (judgement creditor) order execution of the
decree.1032
(a)

By delivery of any property specifically decreed.

(b)

By attachment and sale or by sale without attachment, of any property.

(c)

By attachment of debts.

(d)

By arrest and detention in prison of any person.

(e)

By appointing a receiver.

(f)

In such other manner as the nature of the relief granted may require.

It is the decree holder to select the appropriate means of execution of his decree, subject to the
discretion of the court1033. There is nothing to prevent a plaintiff from applying for several modes
of execution.1034However, the court may in its discretion, refuse execution at the same time
against the person and property of the judgement debtor.1035
The parties to Execution
The person (judgement creditor) who is named or ascertained in a judgement or order is entitled
to the benefit thereof and may issue execution against the person called judgment debtor (who is
subject to the obligation imposed on him thereby). Execution cannot issue against a non-party to
suit.1036However, where a person has become liable as a surety, then the decree or order may be

1031

S.35 Civil Procedure Act Kabwengure vs Kanjabi [1977] HCB 89

S.38 Civil Procedure Act O.22 r 7
1033
Mandavia vs Rattan Singh [1968] EA 146 at 149
1034
O.22 r 27 Beatrice DSouza vs Sachodina [1964] HCB 117
1035
O.22 r 18
1036
Rajimpex vs National Textiles Board HCCS No. 1033 of 1986 (unreported)
1032

232

executed against him/her to the extent to which he/she has rendered himself/herself personally
liable.1037
The rights and liabilities of a judgement creditor or judgement debtor may by reason of
alienation, bankruptcy or death devolve upon some other person, who may then issue, or be the
subject of a process of execution.
Every transferee of a decree shall hold the same subject to the equities, if any which the judgment
debtor might have enforced against original decree holder.1038
In case a judgment debtor dies before the decree has been satisfied the holder of the decree may
apply to court which passed it to execute the same against representative of such deceased or
against such person who has intermeddled with estate of such deceased. 1039
Procedure for Execution
Before an execution can issue a decree must be extracted, signed and issued. 1040
Every application for the execution of a decree shall be in writing, signed and verified by the
applicant or his advocate and shall be in a tabular form containing the following suit number,
parties, date of decree whether appeal is preferred, whether any part payment has been effected,
whether there is previous application, amount due with interest if any or other relief granted,
amount of costs, name of person against whom execution is sought, the mode in which the
assistance of the court is required. 1041Apart from an execution by way of arrest, which may be
made orally, in all other cases application for execution must be in writing.
The application for execution must be signed and verified by the applicant, his/her advocate, or
any person conversant with the facts of the case. This application should be accompanied with a
certified copy of the decree.1042
However, in exceptional circumstances the decree holder may make an application for execution
orally if it is for payment of money at the time of passing of the decree order immediate
execution thereof by the arrest of the judgment debtor, prior to the preparation of a warrant. 1043
An application for execution may be made but execution should not issue before a decree is
signed and issued.

1037

S.93 Civil Procedure Act

S.37 Civil Procedure Act
1039
S.38 Civil Procedure Act
1040
Narshidas M. Mehta &Co. Ltd. vs baron Verheyen [1956] 2 TLR 300
1041
O.22 r 8 (2)
1042
O.22 r 8 (3)
1043
O.22 r 8 (1)
1038

233

Figure 4

Copy of application for execution

THE REPUBLIC OF UGANDA
IN THE COURT OF APPEAL AT KAMPALA
ELECTION APPLICATION NO. 05 OF 2006
HERBERT MULAAPPLICANT
VERSUS
ELECTORAL COMMISSION.1ST RESPONDENT
SSALI JAK.. 2ND RESPONDENT
APPLICATION FOR EXECUTION OF DECREE
(O.19 r 8)

We, M/s Ssekaana Associated Advocates & Consultants for Decree-holder, hereby apply for execution of
the decree herein below set forth
No. of Suit
Election Application No. 05 of 2006
30th January 2007

Date of decree
Whether any appeal preferred from decree

NONE

Payment or adjustment made if any

NIL

Previous application, if any, with date and result

Amount with interest due upon the decree or other
relief granted thereby together with particulars of
any cross-decree

N/A

Amount of costs, awarded is Shs. 10,476,100/=

Amount as awarded
in the Decree

Against whom to be executed

HERBERT MULA

Shs.

MODE IN WHICH THE

ASSISTANCE OF THE COURT
IS REQUIRED

Consultants
RESPONDENT)
DATE: 18TH APRIL 2007

By way of a warrant of arrest of the Judgment Debtor

HERBERT MULA
__________________________________________
M/s Ssekaana Associated Advocates &
(COUNSEL FOR THE 2ND

234

Property liable to attachment

The following is liable to attachment and sale in execution of a decree, namely lands, houses,
other buildings, goods, money bank notes, cheques, bills of exchange, promissory notes,
Government securities, bonds or other securities for money, debt, shares of a corporation and save
as herein after mentioned, all other saleable property movable or immovable, belonging to the
judgment debtor or over which or the profits of which he has a disposing power, which he may
exercise for his own benefit, whether the same be held in the name of the judgment debtor or by
another person in trust for him or on his behalf.1044
The section further gives the exceptions of such goods that are not liable to attachment. 1045
Examination of Judgment Debtor
Where a decree is for the payment of money, the decree holder may apply for an order that;
The judgment or any other person be orally examined as to his means. 1046 The debtor may also be
ordered to produce any relevant documents in his possession. Any other person not to be read
ejusdem generis, but power to examine persons other than the judgment debtor or an officer of a
debtor corporation must be exercised with caution. 1047In Kenya, court noted that an application
under O.21 r 36 is misconceived if it seeks the examination of a corporation because a
corporation is not amenable to an order for examination. 1048
An officer of the debtor includes not only present officers but also former officers of the body
corporate.1049 A garnishee, against whom an order absolute has been obtained, can be examined.
The officer conducting the examination must take down, or cause to be taken down, a written
statement made by the debtor or other person at the examination. In addition the debtor must
answer all questions fairly directed to ascertaining his/her financial circumstances, including
information as to bank accounts, policy numbers.
It has been said that the examination is not only intended to be an examination, but to be a cross
examination, and that of severest kind.1050 The debtor must also answer questions relating to any
property that he has or other means of satisfying the judgment. A debtor can be required to
answer questions relating to assets that he may have overseas. 1051
A judgment debtor who disobeys an order to attend for an oral examination as to his/her means
may be committed to prison for contempt.

1044

S.44 Civil Procedure Act

S.44 (1) a j VI Posho Mill vs Kenya sisal Estate [1962] EA 647
1046
O.22 r 38
1047
Rodway Motors Ltd. vs Sunderji Gokaldas (1940) 1 ULR 51
1048
Corporate Insurance Co Ltd vs Savemax Insurance Brokers Ltd [2002] 1 EA 41
1049
Societie Generale vs J M Farina & Co. [1940] 1 KB 794
1050
Republic of Costa Rica vs Strousberg (1880) 16 Ch.D 8 at 13
1051
Interpool ltd. vs Galani [1988] QB 738
1045

235

Arrest and Detention

A judgment debtor may be arrested in execution of a decree. 1052 Arrest and detention is not
restricted to decrees for payment of money only but includes enforcement of other decrees. 1053
Before a warrant of arrest is issued, the judgment debtor should be issued with a notice calling
upon him to appear before court to show cause why he should not be committed to prison. 1054The
court has the discretion to give the judgement debtor an opportunity to show cause why he/she
should not be committed to the civil prison instead of ordering his/her arrest.
Figure 5NOTICE TO SHOW CAUSE WHY WARRANT OF ARREST SHOULD NOT ISSUE

THE REPUBLIC OF UGANDA

IN THE CHIEF MAGISTRATES COURT OF MENGO AT MENGO
CIVIL SUIT NO. 890 OF 1998
ABC LTD.. PLAINTIFF
VERSUS
XY.. DEFENDANT
NOTICE TO SHOW CAUSE WHY WARRANT OF ARREST SHOULD NOT ISSUE
(UNDER O.19 R. 34 CPR)

To:

XY

WHEREAS M/S NKM ADVOCATES Counsel for the Plaintiff have made an application to this Court for
execution of the decree in suit No. 890 of 1998 by arrest and imprisonment of your person, you are hereby
required to appear before this Court on 17th day of May 2001, at 9.30 a.m. to show cause why you should
not be committed to the civil prison in execution of the said decree.

Given under my hand and the seal of the Court this day of 2001.

CHIEF MAGISTRATE

1052

S.40 Civil Procedure Act

Kato vs Kantinti [1985] HCB 97
1054
O.22 r 35 Azziz vs Pajabo [1977] HCB 36-37 68Czeczowizca vs Markins (1936) 3 EACA 5
1053

236

Every person detained in prison in execution of a decree shall be so detained for a period not
exceeding six months.1055However the detention of the Judgement debtor doesnt affect the
liability to pay the decretal sum. 1056
Where the judgment debtor is released from prison, shall not by reason of his release be
discharged from his debt, but shall not be liable to be re-arrested under the decree in execution of
which he was detained in prison.1057
Execution by way of Attachment
The goods of the judgment debtor may be taken in execution by seizure and attachment. 1058
The decree holder shall remain with the attached property until such a time when the judgment
debtor has obeyed the decree. Upon refusal to comply with the decree, the decree holder shall
apply to have attached property sold.1059
The goods belonging to the judgment debtor may be taken. Goods of which he/she is only a
trustee may not be taken, nor goods which he has bonafide sold to a third party provided the third
party has taken possession of them. 1060
The principle of seizure was that only such things as could be sold might be taken in possession
that is corporeal good, not such things as documents conferring title to property or bank notes.
The court bailiff is duty bound to seize so much things as could be sold might be taken in
possession that is corporeal good, not such things as documents conferring title to property or
bank notes.
The court bailiff is duty bound to seize so much as will reasonably be sufficient to the debt with
interest and costs of the execution. Seizure of anything more may render him liable to the
judgment debtor for an excessive execution. 1061
Attachment may be by actual seizure, by notice or constructive attachment, by s caveat or
freezing order that prevents the judgement debtor from dealing with or in the property where it is
immovable property. Where attachment is ordered, there must be an inquiry as to whether the
property is liable to attachment as provided under the Civil Procedure Act.
Attachment must be done during the day i.e no person shall enter any dwelling house after sunset
and before sunrise.1062Reasonable force may be applied to gain access if the judgement attempts
to deny or delay attachment 1063. However cause must be shown then, that it was impossible to
gain access without use of force, and the judgement debtor occasioned this impossibility.
Possession
1055

S.42 (1) Nile Bank Ltd. vs Gomba Machinery & General Equipment Ltd. [1992] 1 KALR 68
S.42 (2) Civil Procedure Act
1057
S.42 (2) Civil Procedure Act
1058
O.22 r 28 (1) O.22 r 40
1059
O.22 r 28 (2)
1060
Rondeau Le Grand & Co. vs Marks [1918] 1 KB 75
1061
Moore vs Lambeth County Court Registrar (No.2) [1970] 1 QB 560
1062
S. 45(1) Civil Procedure Act
1063
S.45 (2)
1056

237

Upon seizure, the court bailiff takes and should retain possession of them. If he/she abandons
possession, someone close may step in and obtain priority over the judgment creditor.
Where the judgment debtor has obeyed the decree and paid all costs, which he is bound to pay. 1064
After the goods are seized, thereafter the defendant or someone acting for him tenders all that are
due, the court bailiff may not proceed to sell the goods.
Where at the end of six months from the date of the attachment, no application to have the
property sold or if made, has been refused, the attachment ceases. 1065
Immediately after seizure, the court bailiff must apply to proceed to sell them. He/she may not
deliver the goods themselves to the Judgment creditor in satisfaction of the debt. The sale must
be held within reasonable time and be for the best price reasonably obtainable. The seller of
goods cannot give a better title than he has not.
Sale
The power to sale after execution is highly regulated and monitored at every stage of the sale
process in order to ensure that the judgement debtor and those claiming under him are not
prejudiced.
The power of sale is derived from the Civil Procedure Act 1066 but these provisions only relate to
sale of immovable property. This does not mean that movable property is not subject to sale. The
power of sale of movable property is laid out under Order 22 rule 61, and may be a result of
attachment, or a sale without attachment.
Where the attachment and sale is the mode of execution, a separate order of sale is required
before a sale is conducted. However if the mode of execution is sale without attachment, the
initial warrant of sale is sufficient.
The sale must be conducted by a court official or appointee and must be made by public
auction.1067This rule does not permit a court to order a sale by private treaty except by consent of
the Judgement debtor.1068This is intended to prevent non-arms length transactions that may
prejudice the judgement debtor and ensure a minimum measure of public scrutiny.
Notice of sale must be made to the judgement debtor in person, and to the whole world by public
notice or advertisement as required under the rules. 1069This notice is mandatory in every case, and
no sale is valid without it.1070However any irregularity in publishing the sale of movable property
shall vitiate the sale.1071
The time of sale is equally regulated under the rules, and they require that a period of fifteen days
for movable property and thirty days for immovable property between the time of publication of
1064

O.22 r 28 (3)
Ibid
1066
S.48-50 Civil Procedure Act
1067
O.22 r 62
1068
Standard Bank of South Africa vs Senkubuge [1960] EA 13
1069
O.22 r 63
1070
Ochola vs Wasswa [1988-90] HCB 102
1071
O.22 r 71
1065

238

notice and sale.1072However the time allowed for sale of movable may be reduced with consent of
the judgement debtor and the time required before the sale of immovable property cannot be
abridged under any circumstances.
The person or officer in charge of the sale of property under an order of court or the decree holder
is not supposed to take part in the bidding and purchase of the property. 1073 It is not usual or
proper for advocates to take warrants to auctioneers and an advocate should be aware of
becoming too personally involved in matters of this sort otherwise it may tend to raise
suspicions.1074
Wrongful and Irregular Execution
An execution is wrongful when it is neither authorized nor justified by the warrant of execution
or by the judgment or decree which it issued or when the warrant is issued maliciously and
without reasonable or probable cause or when unfair means such as procuring of a search warrant,
are used to enable the court bailiff to enter the premises of the execution order.
An execution is also wrongful when the endorsement on a warrant directs the court bailiff to levy
at a wrong address or on the goods of a person other than the execution debtor.1075 A court broker
has a duty to ensure that he is executing a lawful order at least when he is in doubt. 1076 Individual
members of the company are not liable for the company debts. Even as Managing Director he
could not be liable for the debts of his company.1077
A court broker is entitled to act upon an order that is signed by a judge or a magistrate and bears a
seal of court (A rubber stamp is sufficient compliance with the requirement that it can be sealed
with the seal of the court)1078. He is not to be expected to look into the validity or otherwise of
that order or warrant.
A court broker loses his immunity only if he acts unlawfully, 1079otherwise they are protected
under the law as officers of court.1080
Wrongful executions are, however not necessarily all void ab initio; thus, when a court bailiff
does what he has no authority to do, for example breaks into an execution debtors premises, he
will be liable for the trespass, but the execution remains good.
Similarly, an excessive execution may give rise to an action for damages but does not avoid the
execution altogether.1081
Irregular execution

1072

O.22 r 64
O.22 r 67 &68
1074
Semakula vs Musoke [1981] HCB 46
1075
Parrot vs Sempala [1978] HCB 51
1076
Fenakasi Semakula vs Musoke [1981] HCB 46
1077
Sentamu vs UCB [1983] HCB 61
1078
A.G. vs Khatoon C Satchu [1960] EA 505
1079
Paul Kalule Kagodo vs Karolina Kyagaza [1979] HCB 136
1080
S.46 (2) Judicature Act Joyce Kinyakwanzi vs Hezekia K Naugga HCCA No. 583 of 1973
(unreported), Francis Micah vs Nuwa Walakira SCCA 24/94 (unreported).Semakula vs Musoke supra
1081
Watson vs Murray & Co. [1955] 1 ALLER 350 Yokoyasi Emau vs Micheal Etatoa [1982] HCB 48
1073

239

An execution is irregular when any of the requirements of the rules of court, or of the practice for
the time being, have not been complied with, and the proceedings will be set aside or amended or
otherwise dealt with in such a manner and upon such terms as the court shall think fit. If a
warrant of execution is irregular or ought not to have been issued, the Registrar will in general,
set it aside.
The setting aside of a warrant on the ground of irregularity does not prevent the plaintiff issuing
and executing another warrant.
A title of a bonafide purchaser from the court bailiff will be good though the execution is
irregular, unless it was altogether void1082or the goods were goods of third party and not of the
party against whom the execution issued in which the latter case the owner may recover even
against a bonafide purchaser for value. Irregularity not to vitiate sale but any person injured may
sue.1083
Receiver by way of Equitable Execution
Application may be to the court for an order for the appointment of a receiver to receive rents,
profits and other income of the judgment debtor, which cannot conveniently be attached by the
other methods of execution.
Such an order may only be made where:(a)

There is no way of getting at the funds except by the appointment of a receiver

(b)

The appointment of a receiver will be effective. 1084

The effect of such appointment is limited in that it does not procure a transfer of the property to
the judgment creditor, nor does it give him a charge on it. It merely prevents the debtor from
receiving the income of the property or dealing with it to the prejudice of Judgment creditor.
Examples of the kind of income, which could be intercepted by receiver, are funds paid into
court, a legacy not yet payable, and a share of proceeds of sale of land not yet sold, income under
a trust fund;
Execution against Government
There is a special procedure prescribed for enforcement of judgments against the government.
Rule 15 excludes the applicability of Orders 22,23 & 42 to matters relating to government. Under
these rules therefore, it is the law that no attachment of government property
Before an execution or satisfaction of an order against Government is issued, the judgment debtor
shall apply for a certificate of Satisfaction Order before a registrar after the expiration of twentyone days.1085
Such a copy of certificate is served on the Attorney General by the decree holder.1086
1082

Bushell vs Timson [1932] 2 KB 79

O.22 r 71
1084
Maclaine Watson and Co. Ltd. vs International Tin Council [1987] 3 ALL.ER 787
1085
S.19 Government Proceedings Act Rule 14(1) Government Proceedings (Civil Procedure) Rules
1086
S.19 (2)
1083

240

The certificate has to state the amount so payable plus interest thereon.
This procedure was summarized by court to the effect that the proper procedure is for judgment
creditor to apply for and obtain a certificate from the Registrar and present it to the proper officer
of accounts after endorsement from the Attorney General for payment. 1087
It would be by following such a procedure that the person could obtain payment by the Attorney
General writing to the proper accounts office instructing him to effect payment such officer of
accounts.
Where the official refuses to pay, the judgment debtor can apply for a mandamus. The High
Court has power to make an order for mandamus which is directed towards the public officer in
question requiring him to do that for which he is under a public duty to do. 1088
A mandamus could issue to the treasury officer of accounts to compel him to carry out the
statutory duty upon him to pay.1089
Procedure
The application for mandamus is made by way of an application for judicial review 1090 and only
by leave of court,1091 and this application is made ex-parte to a judge in chambers. 1092
The application is made promptly and in any event within three months from the date when the
grounds of the application first arose unless the court considers that there is good reason for
extending the period within which the application shall be made. 1093
After the grant of leave to apply, the judgment debtor will apply by notice of motion to High
Court in eight clear days. 1094
The notice to be served on all persons directly affected parties including Attorney General and
Treasury Officer of Accounts.1095
An affidavit of service will be necessary to show notification of concerned parties.
In case an order of mandamus is granted and such officer is still obstinate, court can invoke
contempt of court proceedings or by application for notice to show cause why the respondent
should not be committed to a civil prison for non-compliance with order of mandamus. 1096
In practice, some decree holders are pushing for execution against government by way of
attachment of government property (motor vehicles) relying on the principles and reasoning for
the grant of injunctive relief against government. 1097
1087

Brother Peter vs A.G. [1980] HCB 107

S.37 (1) Judicature Act
1089
Shah vs A.G. (No.3) [1970] EA 543, Construction Engineers and Builders vs A.G. HCCS 1155/85
1090
Rule 2 The Civil Procedure (Amendment)(Judicial Review) Rules 2003
1091
R.4 (1) ibid
1092
R.4 (2) ibid
1093
R 5 ibid
1094
R.6 (2) ibid
1095
R.6 (4)
1096
Sebuliba vs Treasury Officer of Accounts. Misc. Application No. 127/92 (unreported)
1097
Osotraco Limited vs Attorney General 1380 of 1986 decided on 20th March 2002
1088

241

Execution against Local Governments.

No execution, attachment or process in such a nature shall be issued out of any court for
enforcing payment by a local government of any money or costs against its fixed assets and
statutory transfers, provided the execution or attachment may be against any other property after
six months from the date of judgement, order or decree.1098
Enforcement of Foreign Judgments
Where decrees and warrants obtained or granted by courts in Kenya, Malawi and Tanzania, may
be executed in Uganda. These have to be transferred to High Court or subordinate courts. 1099
The judgments obtained in a superior court in the United Kingdom or the Republic of Ireland; can
be registered in Uganda, upon application to the High Court within twelve months to have it
enforced in Uganda,1100unless a further period has been granted by court. 1101
In addition judgments obtained in the High Court against any person the court shall on
application by judgment creditor and proof that judgment debtor is resident in United Kingdom or
Republic of Ireland issue to the Judgment creditor a certified copy of the judgment. 1102
The minister is empowered to extend the application to other commonwealth countries by
order.1103
Furthermore, the Minister may extend the law to judgments given in the Superior Courts of any
country provided that the same will be extended to Uganda Judgments. 1104
A judgment creditor may apply to the High Court at anytime within six years to have the
judgment registered in the High Court. 1105 Once registered, the foreign judgment will be treated
for all intents and purposes and will carry the same force of law as if it were made in the Ugandan
courts of law.
The judgment which it is sought to enforce, whether by action or otherwise, must be as between
the parties to it, final and conclusive, and must determine the rights and liabilities of the parties in
the courts of the country where it is pronounced.
A judgment not final and conclusive if the same court which pronounces, has power to rescind or
vary it subsequently.1106 A judgment is final even though it may be the subject of an appeal.
Judgment obtained by fraud

1098

S.6 (2) Local Government Act

S.2 of the Judgment Extension Act
1100
S.2 (1) The Reciprocal Enforcement of Judgments Act.
1101
In re Sir John Bagaire HCMA 261/94 [1995] V KALR 18 Transroad Ltd vs Bank of Uganda HCCS No.
1102
S.3 The Reciprocal Enforcement of Judgments Act
1103
S.5 ibid
1104
S.2 Foreign Judgments (Reciprocal Enforcement) Act
1105
S.3 Ibid
1106
Nouvion vs Freeman (1889) 15 App. Cas 1
1099

242

Though every presumption is to be made in favour of a foreign judgment, the burden of proof lies
on her or him who impeaches it, 1107yet, since no one is entitled to take advantage of his own
wrong, a foreign judgment obtained by fraud or misrepresentation cannot be enforced in a foreign
court.1108
GARNISHEE/ATTACHMENT OF DEBTS
Attachment of debts is a process by means of which a Judgment creditor is enabled to reach
money due to the Judgment debtor, which is in the hands of a third person. 1109 To support a
garnishee there must be a debt due or accruing due, it is not sufficient to show a contingent
liability.1110
This is a convenient method of executing against a judgement debtor since the money is
intercepted on its way to him/her before they come within his/her possession.
The third person in whose hands is the money, which is sought to be attached, is called garnishee,
the requisite proceeds are known as garnishee proceedings and the necessary order is called a
garnishee order.
A garnishee order changes the obligation of the third party to pay the judgment debtor into an
obligation to pay the judgment creditor directly.
When garnishee can be instituted
Garnishee proceedings may be instituted by any person who has obtained a judgment or order for
recovery of payment of money by an assignee of judgment debt or by representatives of a
deceased judgment creditor who have been made parties to the action in which the judgment or
order in question has been given or made.
The test as to whether a debt is attachable is whether it is owing by the garnishee and it is the type
of debt, which the judgment debtor can enforce if he desires to do so. 1111 Such debt capable of
attachment must be in existence at the date when the attachment becomes operative, something
that the law recognizes as a debt1112and not something, which may or may not become a debt.
Thus, when the existence of a debt depends upon the performance of a condition, there is no
attachable debt1113until the condition has been duly performed.
An existing right under which something is accruing that will probably become a debt as some
future date is not sufficient, not withstanding that the amount to become due is capable of being
calculated with precision.1114

1107

Pemberton vs hughes [1899] 1 Ch 781 at 792

Abouloff vs Oppenheimer (1882) 10 QBD 295, Vadala vs Iawes (1890) 25 QBD 295
1109
O.23 r 1
1110
Abdul Wahib & Sons vs Mushiram & Co. (1932) 14 KLR 47
1111
Sunder Dass vs Municipal Council of Nairobi [1948] 15 EACA 33
1112
Webb vs Stenton (1883) 11 QBD 518., Lucas vs Lucas and High Commissioner for India [1943] 2
ALLER 110
1113
Howell vs Metropolitan District Rail Co. (1881) 10 Ch D 508, EA. Airways vs Lewis [1969] HCB 20
a gratuity payable to an expatriate contract officer is a debt owing and is attachable.
1114
Sunder Dass vs Municipal Council of Nairobi (1948) 15 EACA 33, Supra n. ,The mere fact that the
exact amount of a debt cannot for the moment be ascertained is no ground for refusing to attach it.
1108

243

So long as there is a debt in existence, it is not necessary that it should be immediately

payable.1115 Thus, where an existing debt is payable by future installments, the garnishee order
may be made to become operative as and when each installment becomes due.
Money in hands of a bank is always attachable by garnishee and the bank has to show whether
order nisi should not be made absolute by claiming a lien over the money in its possession. Until
the garnishee admits his indebtedness to the judgement debtor, the garnishee order nisi cannot
meaningfully be made absolute. The existence and availability of funds belonging to a judgement
debtor has to be conclusively established as a condition precedent to making the order
absolute.1116
Although a banker has a general lien on all securities deposited with it by the customer unless
there is an express contract or circumstance, which is inconsistent with it, money is usually not
the subject of a lien as it is not capable of being earmarked. The bankers claim in such cases
would probably be more rightly referred to as a setoff. 1117
Procedure
An application for an order for attachment of a debt is made ex-parte with a supporting affidavit
which must state the name and address of the judgment debtor identify the judgment to be
enforced giving the amount remaining unpaid; state to the best of the information or belief of
deponent the garnishee is within the jurisdiction and is indebted to the judgment debtor and if the
garnishee is a deposit taking institution having more than one place of business, give the name
and address of the branch at which the judgment debtors account is believed to be held; the
number of the account and if all or part of this information is not known to the deponent, the fact
that it is not known.
Since the Garnishee proceeding is a two-stage process, the first stage is for the judgment creditor
to apply ex-parte. If an order nisi is granted it shall be served on the garnishee and judgment
debtor unless otherwise ordered within seven days. 1118
The court has complete discretion as to whether the order nisi should be granted.1119 However, the
court will refuse to make the order where it would result in the garnishee being liable to pay the
debt for the second time.1120
Effect of the Order
From the date of service on the garnishee the order attaching any debt due or accruing due from
the garnishee to the debtor, or so much as is sufficient to satisfy the claim of the judgment
creditor against the debtor (including costs entered the order to show cause.)
Until service of the order nisi, there is no attachment of the debt. If the garnishee bonafide pays
to the judgment debtor the amount of debt before service, the order nisi is absolute as there is no
longer any debt to which it can attach.
1115

White, Son and Pill vs Stennings [1911] 2 KB 418

U.C.B vs Joseph Ziritwawula [1985] HCB 94
1117
Kanabolic Group of Co. Ltd. vs Scoul Misc. appl. No. 653 of 1996 (unreported)
1118
O.23 r 1
1119
Makumbi vs NIC [1979] HCB 230 231
1120
Deitsche Schachbau und Tiefbohrgesell Schaft MBH vs Ras Al Khaima National Oils Co. [1988] 2
ALLER 833
1116

244

Where the garnishee has paid the debtor by cheque before the service of the order nisi, he is under
no obligation to stop the cheque. If the cheque is stopped or dishonoured, the attachment will
operate.1121
The service of order nisi creates an equitable charge and the garnishee cannot pay the debt to
anybody without incurring the risk of having to pay it again. 1122
Order Absolute
The court has discretion as to whether the order should be made absolute and in exercising its
discretion; the court must have regard to the position of the other creditors so far as they are
known to the court.1123 The court must be satisfied before it makes an order absolute that there is
a debt in praesenti.1124
A garnishee order will place the judgment creditor in the same position as an assignee of the
judgment debtor and will make him subject to the equities, which exist against debtor. The
garnishee may also obtain execution if the money is not paid in accordance with the order
absolute.
Any payment made by the garnishee in compliance with an order absolute, and any execution
levied against him in pursuance of the order is deemed to be a valid discharge of the liability of
the garnishee personally in the proceedings (e.g. costs awarded against garnishee where the
proceedings are improperly defended are not to be counted in the discharge of the liability of the
garnishee.
Payment by the garnishee made under the order absolute will discharge any obligation to pay the
debt to debenture holders under a floating charge that has not crystallized before payment. 1125
However, where the judgment creditor has not yet received payment under a garnishee order
absolute, a receiver appointed for debenture holder will obtain priority over the garnishee order.
Where the court refuses to make the order absolute, it will direct order nisi, to be discharged. A
garnishee order can be set aside where there is a mistake of fact. 1126

CHAPTER EIGHTEEN
COSTS
1121

Cohen Vitate vs Hale [1878] 3 QBD 371

Galbraith vs Grim Shaw & Baxter Baxter [1910] 1 KB 339 at 343
1123
Rainbow vs Mooregate Properties Ltd [1975] 1 WLR 788, Prichard vs West Minister Bank Ltd.
[1969] 1 WLR 547
1124
Bains vs Hahmibibi [957] EA 13
1125
Robson vs Smith [1895)] 2 CH 118
1126
Moore vs Peachay [1892] 8 TLR 406
1122

245

Introduction
Legal costs are incurred from the time a client consults an advocate until the latters retainer is
terminated, which may be after any judgment obtained has been enforced. The client bears the
primary responsibility for settling his/her advocates bill which include:(a)

Advocates remuneration for the work done in the matter.

(b)

Any expert fees;

(c)

Court fees and

(d)

Any other charges and disbursements.

In every suit the costs of the whole suit and of each particular proceeding therein, and the costs of
every proceeding in the court is at the discretion of the court as regards by whom they are to be
paid.1127 A successful party is entitled to costs unless there are good reasons to deny such party
costs1128.
However, the court cannot order the successful party in a suit to pay the unsuccessful party the
costs of any particular proceeding therein.
It is imperative to note that the discretion thus given to the court like other similar discretions
must be exercised judicially and not arbitrary.1129
The exercise of this discretion must not be affected by questions of benevolence or sympathy but
must be for some reason connected with the case.
Although the award of costs is in the discretion of the judge, there should be some grounds upon
which the judge would exercise his discretion.1130
The successful party may be deprived of his/her costs if justice demands this course of action. 1131
A successful party can only be denied costs if its proved that, but for his/her conduct, the action
would not have been brought.1132
A mortgagee was deprived of costs of redemption on ground of misconduct. 1133 A successful
defendant was refused costs where the rent restrictions arose out of defendants default. 1134
Where there are two defendants or more, an unsuccessful defendant may be ordered to pay the
costs not only of the plaintiff but also of the other successful defendants. 1135 The object of
1127

S.27 Civil Procedure Act Makula International vs. Cardinal Nsubuga (1982) HCB 11, 15
Jenniffer Behange, Rwanyindo Aurelia, Paulo Bagenzi vs. School Outfitters (U) Ltd. CACA No.53 of
1999 (unreported)
1129
Donald Campbell & Co. Pollack [1927] AC 732 at 811
National Pharmacy Ltd. vs. KCC (1979) HCB 256, Liska Ltd. vs. De Angelis [1969] EA 6
1130
U.T.C vs. Outa [1985] HCB 27
1131
D.A.P.C.B vs. Kayondo [1982] HCB 17
1132
U.D.B vs. Muganga Construction Co. [1981] HCB 35
1133
Pioneer Investment Trust Ltd. vs. Amarchand [1967] EA 458
1134
Fazal Dhirani vs. Abdul Mohamed Ismail Ganji (1946) 13 EACA 69
1128

246

awarding costs is not to punish the unsuccessful party for the expenses to which he has been put
for having come to court.
Who is entitled to Costs
Before a party institutes a suit against another is required under the law to give a notice of
intention to sue and failure to give a notice may disentitle such a party to costs.
If the plaintiff in any action has not given the defendant notice of his/her intention to sue, and the
defendant pays the amount claimed or found due at or before the hearing, no advocates costs
shall be allowed except on an order of the judge or magistrate. 1136
An advocate must possess a valid practicing certificate while handling any legal matter otherwise
it may disentitle him/her to costs of the suit. However, there is a period of grace of two months
January and February allowed to every advocate to practise without renewing the practising
certificate.1137
All documents signed and filed by an advocate who has not renewed his/her practicing certificate
during the period of grace are valid though such advocate will be penalized by denial of costs.
Section 68 provides;1138
No costs shall be recoverable in any suit, proceedings or matter by any person in
respect of anything done, the doing of which constitutes an offence under the provisions
of this Act, whether or not any prosecution has been instituted in respect of such
offence.
In addition, an advocate who has no practicing certificate cannot validly commence an action in
court at the time when he has no instructions and cannot validly instruct another lawyer to hold
for him brief for purposes of prosecuting an application filed whilst under such incapacity. 1139
Similarly, a firm of advocates, which does not hold a valid approval of chambers of Uganda Law
Council is not in law recognized as a firm of, advocates and cannot validly commence court
action or duly instruct another lawyer to act on their behalf for purposes of conducting business
of court.1140 However, in another case before the full bench court noted that it is perfectly plain
that the court licences an advocate individually to practice and not the chambers. It is the conduct
of an advocate that is always relevant to the question of his fitness to practice. 1141

1135

Sanderson vs. Blyth Theatre Co. [1903] 2 KB 535 Besterman vs. British Motorcar Ltd. [1914] 3 KB
181
1136
Rule 39 The Advocates (Remuneration and Taxation of Costs) Regulations SI 267-4
1137
Y.Mutungirehi vs Rwangwade &Group CACApp No.40 of 1999 [1998-2000] HCB 30
1138
Advocates Act, Professor Syed S.Huq vs The Islamic University in Uganda SCCA No.47 of 1995, Re
M/s Lukeera and Co.Advocates Misc Cause No.76 of 1973 reported in [1978] HCB 198 Advocate denied
costs through court in respect of anything done when the Certificate had not been renewed.
1139
Y.Mutungirehi vs Rwangwade &Group CACApp No.18 of 1999[1998-2000] HCB 34
1140
Ibid
1141
Julius Emomeri vs Shell (U) Ltd CACA No.12 of 1999 [1998-2000] HCB 28

247

Costs inter-partes
The general principle is that, as between the parties to an action, costs follow the event, that is,
the loser of the action must pay the winner costs. Costs in any action, cause, other matter or issue
follow the event unless the court for good reasons otherwise orders. 1142
Costs inter-partes are usually taxed (that is, assessed) on the party and party basis, that is there
shall be allowed all such costs as were necessary and proper 1143for the attainment of justice or for
enforcing or defending the rights of the party whose costs are being taxed.
Party and party costs will not include, any charges merely for conducting litigation more
conveniently (which) may be called luxuries; and must be paid by the party incurring
them;1144similarly costs incurred through carelessness, mistake or unnecessary caution and
unusual expenses, such as special fees to advocate or special fees paid to witness, should be
disallowed.
Costs in Interlocutory Proceedings
Costs may be dealt with by the court at any stage of the proceedings. Accordingly, at the
conclusion of interlocutory proceedings the judge or registrar may, in his/her discretion, make any
one of the following orders:
Costs in the cause
The effect of this order is that whichever party is eventually ordered to pay the general
costs of the action will also have to pay both parties costs of the interlocutory
application. Such costs are not immediately payable but will be part of the general costs
at the final determination of the action.
When such order is made the party in whose favour it is made will recover the costs if he
wins, but will not have to pay if he loses. It is usually made where the other party acted
unreasonably.
Plaintiffs costs in cause
The effect is that if the plaintiff is successful at the trial, costs will follow the event, and
the defendant will have to pay the costs of the interlocutory application (as well as
general costs); and even if the defendant succeeds at the trial, he/she will still have to pay
his own costs of the interlocutory application. Such an order is appropriate where the
judge or registrar or magistrate considers that the plaintiffs conduct is not such as to
entitle him/her to costs unless he/she succeeds at trial.
Defendants costs in cause
The effect is the same, mutatis mutandis, as the plaintiff s costs in the cause.
1142

Rwantale vs. Rwabutoga [1988-90] HCB 100, UDB vs. Muganga Construction Co. Supra n
Re Mercury Model Aircraft Supplies Ltd. [1956] 2 ALLER 885
1144
Smith vs. Buller [1875] LR P9 Eq 473
1143

248

Cost of Costs in any event

The effect is that the party who succeeds in the interlocutory application is to be entitled
to his/her costs of the application, whatever the final outcome of the action. Such loser in
the interlocutory application has attempted to argue the unarguable or to defend the
indefensible.
Costs thrown away
This order requires a party, whose conduct has resulted in proceedings or any part of
them being ineffective, to pay the wasted costs, including the costs of the other party, for
instance, a defendant against whom a judgment in default of filing defence has been
entered, may have the judgment set aside but may be ordered to pay the costs thrown
away and a party whose application to amend a pleading is made at an unduly late stage
in the trial, may be ordered to bear the costs thrown away by making the application.
Costs reserved
The effect of this order is similar to costs in the cause except that it enables the court to
order otherwise at a later stage, in the light of the conduct of either party.
No order as to costs
Here neither party can claim the costs of the application, whether or not he/she becomes
entitled to the general costs in action. No order is appropriate where the conduct of both
parties is considered unreasonable.
Counsel to pay costs
In some cases, counsel may be condemned into paying costs. However, a judge should
give counsel a right of audience in the matter 1145before such an order is made. Where the
jurisdiction of a judge/magistrate to inflict cost on a party arises from his being guilty of
breach of an injunction or other misconduct an appeal lies as to costs. 1146 Costs do not
carry interest, unless there is an order for interest on costs or prayed for in pleadings. 1147
THE TAXATION PROCESS
Taxation is commenced by lodging at the court registry a bill of costs together with such
supporting documents as the taxing office may require. The manner of preparing bill for taxation
is prescribed by the rules. 1148 The procedure after lodgment is that the bill is served on the other
party, and the party presenting the bill will be hearing. Before the taxation hearing the bill is not
supposed to be altered after being lodged. 1149 After the hearing (taxation), the necessary
amendments to the bill will be entered, and the bill will be lodged so that a taxing officers
certificate can be issued. Receipts or vouchers for all disbursements charged in a bill of costs
1145

Kamurasi Charles vs. Accord Properties Ltd. SCCA No. 3 of 1996 (unreported)
David Ongee vs. Rose K Ozia CACA No. 45 of 1999 (unreported)
1147
Uganda Blankets Manufacturers (1973) Ltd. vs. Attorney General CACA No. 24 of 1994, Shad, Ram
Mohindra vs. B C Mohindra [1957] EA 708
1148
Rule 47 The Advocates (Remuneration and Taxation of Costs) Regulations
1149
Rule 49 ibid
1146

249

(other than witness allowances and expenses supported by a statement signed by an advocate)
shall be produced at taxation if required by the taxing officer.1150
The taxing officer shall have power to proceed to taxation ex parte in default of the appearance of
either or both parties or their advocates, and to limit or extend the time for any proceedings
before him or her, and for proper cause to adjourn the hearing of any taxation from time to
time.1151
When any party entitled to costs refuses or neglects to file his/her bill of costs for taxation or to
procure the bill of costs to be taxed and thereby prejudices any other party, the taxing officer shall
be at liberty to certify the refusal or neglect and to proceed to the taxation of the costs of the other
party or parties, or he or she may allow the party so refusing or neglecting a nominal sum or other
sum for costs, so as to prevent any other party being prejudiced by the refusal or neglect. 1152
Appeal on Taxation
A dissatisfied party may appeal to a judge.
An appellate court will not interfere with the exercise of the trial court discretion except where
that discretion has been exercised unjudiciously.1153
However, an appeal court will interfere with costs awarded by a lower court if that court had not
exercised its discretion at all or judicially, or has proceeded on wrong principles. Where a
magistrate has made no order as to costs, it is not open to the High Court to make one on
revision.1154
An appeal shall lie from a decision of the Registrar on taxation for costs to High Court judge and
the appeal shall be lodged within thirty days. 1155 Every Appeal shall be by way of chamber
summons supported by an affidavit setting out particulars of the matters in regard to which the
taxing officer whose decision or order is subject of the appeal is alleged to have erred. 1156
Costs between Advocate and Client
In Uganda, there are very few litigants who can afford lawyers fees (legal fees) as in accordance
with the Advocates (Remuneration and Taxation of Courts) Rules. The costs awarded by court on
any matter or application shall be taxed and paid as between party and party unless the court shall
expressly order the costs awarded to be as between advocate and client. 1157
Most cases, which are filed in courts, the parties only pay a deposit as filing fees or instruction
fees. Upon disposal of the suit in favour of any litigant, counsel takes the costs as his/her costs
because the litigant only paid a small deposit.
1150

Rule 51 ibid
Rule 54 ibid
1152
Rule 44 ibid
1153
Sheik Juma vs. Dubat Farah [1959] EA 789 Arthur vs. Nyeri Electricity Undertaking [1961] EA 492
Hussein Jan Mohamed & Sons vs. Twentsche Overseas Trading Co. Ltd. [1967] EA 287
1154
Quick Service Stores vs. Thakrar [1958] EA 357
1155
S.62 Advocates Act
1156
Rule 3 The Advocates (Taxation of Costs)(Appeals and References) Regulation SI 267-5
1157
Rule 38 The Advocates (Remuneration and Taxation of Costs) Regulations
1151

250

However, where the litigant has remunerated the advocate in accordance with law, then such
litigant is entitled to all the costs as taxed.
Figure 6Copy of Defendants Bill of Costs

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA
CIVIL SUIT NO. 632 OF 1997
ABC .. PLAINTIFF
VERSUS
XYZ .. . DEFENDANT
DEFENDANTS BILL OF COSTS
DATE

ITEM

PARTICULARS

AMOUNT

1.

To instructions to defend Civil Suit No.

632 of 1997 seeking damages for
wrongful dismissal, defamation, detinue
and/or conversion including perusal of the
plaint.

1,875,000/=

2.

To instructions to make a counterclaim for

7,500,000/=

2,000,000/=

3.

To drafting written statement of defence

and counterclaim of 7 folios.

40,000/=

4.

To making 3 copies thereof.

8/8/97

5.

To service of written statement of

defence.

15,000/=

20/11/97

6.

To making affidavit of service.

10,000/=

7.

To perusal of Reply to Written Statement

of Defence in counterclaim.

40,000/=

22/12/97

8.

To opposing an
enlargement of time.

50,000/=

6/3/98

9.

To attending court.

27/10/2000

10.

To perusal of plaintiffs submissions of 24

application

TAXED
OFF

315,000/=

for

50,000/=
120,000/=

251

folios.
14/11/2000

11.

To drafting Written Submissions of 14

folios.

15/11/2000

12.

To filing written submissions.

20,000/=

10/1/2000

13.

To drafting bill of costs.

20,000/=

14.

To filing bill of costs

10,000/=

SUB TOTAL

140,000/=

5,305,000/=

DISBURSEMENTS
15.

To filing fees

85,000/=

16.

To transport and lunch for witnesses

50,000/=

To commissioning affidavit of service

2,000/=

To miscellaneous expenses inclusive of

telephone, fax and photocopying.

400,000/=
539,000/=

GRAND TOTAL

5,844,000/=

Dated at Kampala this .. day of ., 2001.

..
NKM ADVOCATES
COUNSEL FOR THE DEFENDANT
THIS BILL OF COSTS has been TAXED and ALLOWED at Shillings .. on this
.. day of . 2001 under my HAND and the SEAL of this
Court.
___________
REGISTRAR

DRAWN AND FILED BY:

NKM ADVOCATES
PLOT 103, BUGANDA ROAD
P.O. BOX 7699
KAMPALA

252

Principles to be observed in fixing costs

In fixing the amount of costs, the principle to be observed is that the party who is in the right is to
be indemnified for the expenses to which he has been necessarily put in establishing his claim,
defence or counterclaim, but the court may take into account all the circumstances of the case.
Costs as between party and party are given by law as an indemnity to the person entitled to them;
they are not imposed as a punishment on the party who pays them nor are they given as a bonus
to the party who receives them. Therefore, if the extent of the damnification be found out, the
extent to which costs ought to be allowed is ascertained. 1158
Upon any taxation of costs between the parties, the taxing master (Registrar) may, in determining
the remuneration to be allowed, have regard, subject to any Rule of Court to the skill, labour and
responsibility incurred.
Where a plaintiff is successful in any action which might have been brought by him in an inferior
tribunal, the court may take into account the smaller costs which would have been involved by
the parties if the action had been taken in an inferior tribunal, and may at its discretion grant to
the plaintiff modified costs or no costs1159.
The court may also grant to any other party such extra costs as it is satisfied that the other party
has incurred by reason of the action being taken in the High Court instead of in the inferior court,
unless the court is of opinion that the action was one which for special reason was proper to bring
in the High Court.
Factors to be considered by taxing officer
(a)

The complexity of the item or the cause or matter in which it arises and the difficulty or
novelty of the questions involved;

(b)

The skill, specialized knowledge and responsibility required of, and the time and labour
expended by counsel;

(c)

The number and importance of the documents (however brief) prepared and perused;

(d)

The place and circumstances in which the business involved is transacted;

(e)

The importance of the cause or matter to the client;

(f)

Where money or property is involved, its amount or value;

(g)

Any fees or allowances payable to counsel in respect of other items in the same cause or
matter, but only where work done in relation to those items has reduced the work which
would otherwise have been necessary in relation to the item in question.

In addition, the court must consider the following principles: 1160

1158

Harold vs. Smoth (1860) 5 H & N 379 157 ER 1229

Munyagwa Nsibirwa vs Kamunyanguzi. [1977]HCB 55
1160
Premchand Raichand vs Quarry Services (No.3) [1972] EA 162
1159

253

That costs be not allowed to rise to such a level as to confine access to the courts to the
wealthy;
That a successful litigant ought to be fairly reimbursed for the costs he/she has had to
incur;
That the general level of remuneration of advocates must be such as to attract recruits to
the profession; and
That so far as practicable there should be consistency in the awards made.
In considering bills taxed in comparable cases an allowance may be made for the fall in
value of money.

Discretion of Taxing officer

On every taxation the taxing officer may allow all such costs, charges and expenses as are
authorized and appear to him/her to have been necessary or proper for the attainment of justice or
defending the rights of any party but, except as against the party who incurred them, no costs
shall be allowed which appear to the taxing officer to have been incurred or increased through
over caution, negligence or mistake, or by payment of special charges or expenses to witnesses or
other persons, or by other unusual expenses.1161
The court will only interfere with the discretion when the award of the taxing officer is so high or
so low as to amount to an injustice to one party.1162Only in exceptional cases will a judge interfere
with an award of costs by a taxing officer. Such exceptions are; 1163
Where the award is manifestly excessive or low;
Where there has been a misdirection; and
Where the award has been arrived at on wrong principles
In the case of Bank of Uganda vs Banco Arabe Espaniol1164, Mulenga JSC stated some of the
principles on which a judge should interfere with a taxing officers assessment of a bill of costs.
Counsel would do well to have these principles in mind when deciding to make, and /or
when framing grounds of a reference. The first is that save in exceptional cases, a judge
does not interfere with assessment of what a taxing officer considers to be a reasonable
fee. This is because it is generally accepted that questions which are solely of quantum of
costs, are matters with which the taxing officer is particularly fitted to deal and in which
he has more experience than a judge. Consequently, a judge will not alter a fee allowed
by a taxing officer merely because in his opinion he should have allowed a higher or
lower amount.
Secondly, an exceptional case is where it is shown expressly or by inference that in
assessing and arriving at the quantum of the fee allowed, the taxing officer exercised, or
applied, a wrong principle. In this regard, application of a wrong principle is capable of
being referred from the award of an amount, which is manifestly excessive or manifestly
low.

1161

Rule 13 The Advocates (Remuneration and Taxation of Costs) Regulations

Premchand Raichand vs Quarry Services (No.3) [1972] EA 162
1163
Attorney General vs Uganda Blanket Manufacturers (1973) Ltd SCC.App No.3 of 1993
1164
S.C.C.App No.23 of 1999 Paul K Ssemwogerere &Zachary Olum vs A.G SCCApp.No.5 of 2001
1162

254

Thirdly, even if it is shown that the taxing officer erred on principle, the judge should
interfere only on being satisfied that the error substantially affected the decision on
quantum and that upholding the amount allowed would cause injustice to one of the
parties
There is no formula by which to calculate the instruction fee in matters without monetary subject
matter. The exercise is an intricate balancing act whereby the taxing officer has to mentally weigh
the diverse general principles applicable, which, sometimes, are against one another in order to
arrive the reasonable fee.1165
Costs to more than one Advocate
Costs of more than one advocate may be allowed may be allowed in causes or matters in which
the judge at the trial or on delivery of judgement shall have certified under his/her hand that more
than one advocate was reasonable and proper, having regard, in the case of a plaintiff, to the
amount recovered or paid in settlement or the relief awarded or the nature, importance or
difficulty of the case and, in case of a defendant, having regard to the amount sued for or the
relief claimed or the nature, importance or difficulty of the case. 1166
A certificate for two counsel may be granted in respect of two members or employees of the same
firm.1167
The determination by the court whether the case is a fit one for a certificate for two advocates
must be dependent upon the appreciation by the court of the nature of the application. It is solely
for the court to decide whether the particular case before the court is a fit case for a certificate for
two advocates.1168 The judges decision refusing to give a certificate for two advocates is a
decision to be arrived at by the Judge in exercise of his/her discretion. Where two advocates
appear but no certificate for two advocates is granted, the total amount of the bill must not be
larger than it would have been had only one advocate appeared.
Change of Advocates
Where a successful partys full bill of costs, including instructions fees, was filed by an advocate
who had not done the preliminary work but only came on record at a very late stage when he/she
was instructed merely to tax the costs, it was held that this advocate was not entitled to costs for
works done by other advocates who were then on record, and his bill was rejected in toto. 1169Items
that should have been claimed by the previous advocate must be listed separately on a separate
bill and be made an annex to the bill of the current advocate. Its total should be shown as a
disbursement. The current advocate should explain to the taxing officer what costs are due to him
or her and those due to the previous advocate.1170
On principle, when it comes to the question of priority as to costs between advocates, an advocate
who had last conducted the suit is the person who ought take his costs first. Even if an advocate
were discharged by his/her client, he/she cannot insist upon continuing the suit that he/she might
1165

Paul K. Ssemwogerere &Zachary Olum vs Attorney General SCCApp. No.5 of 2001

Rule 41(1) The Advocates (Remuneration and Taxation of Costs) Regulations
1167
Rule 41(2) ibid
1168
Pollok House Ltd vs Nairobi Wholesalers Ltd (No.2) [1972] EA 175
1169
Bhatt vs Singh [1962] EA 104
1170
Haji Haruna Mulangwa vs Shariff Osman SCC Ref.3 of 2004 [2005] 1 ULSR 210
1166

255

work out his lien, no can he/she even claim priority over the new advocate who conducted the
cause to an end even though he/she did the bulk of the work. 1171

1171

Govindji Popatlal vs Narshidas M Bhudhdeo Supreme Court of Kenya Miscellaneous Civil Case No.73
of 1960

256

CHAPTER NINETEEN
APPEALS, REVIEW AND REVISION
Introduction
One of the aims of all adjudication systems should be perfection in decision-making, and judges
strive for this. But the right of appeal represents an acknowledgment of the fallibility of judges
decision and an assumption that within the hierarchy of the courts, judges in the higher courts are
more likely to be right, particularly where the law is concerned, than their counter parts in lower
courts. In a broader sense, the right of appeal in our system reveals a conflict between the
principle of the finality of judicial decisions and the demands of justice, which require a process
for the correction of incorrect decisions.
An appeal refers to a proceeding taken to rectify an erroneous decision of a court by bringing it
before a higher court. The appellate process is a grim reminder that courts too make mistakes,
some more serious than others, and in many cases, justice cannot be assured by attending only
one court. So it is in the pursuit of justice that higher courts with more personnel, with more
experience should sanction and criticize, and in many cases overturn decisions of their junior
colleagues where they are persuaded that justice has been compromised.
Questions as to the possibility and/or the desirability of appealing may arise during the
interlocutory stages of an action or after trial and judgment. An appeal is an application to set
aside or vary the decision of another tribunal/court on the ground that it was wrongly made.
There is no right of appeal against judgment or order of court of a competent jurisdiction unless a
statute expressly so provides.
Appellate Jurisdiction
In general the right of appeal must be given by an Act of Parliament although there are situations
where an appeal is as of right. In other cases especially from interlocutory matters appeals lie
usually only by leave of the court.
While it is accepted that the provisions conferring appellate jurisdiction should not be construed
in a restrictive manner but rather in the most liberal manner, never the less a court can only
exercise appellate jurisdiction where that jurisdiction is given by Statute. There is no such thing
as inherent appellate jurisdiction. Any party who seeks to avail himself/herself of the right of
appeal must strictly comply with the conditions prescribed by the statute 1172.
No appeal shall lie from a decree passed by court with consent of the parties. 1173
Appellate Courts
Supreme Court
The Supreme Court Shall be the highest appellate court and final Court of Appeal in civil
matters.1174
1172

Harnam Singh Bhogal trading as Harnam Singh and Co.vs Jadva Karsan (1953) 20 EACA 17 at 18
S.67 (2) Civil Procedure Act Afric Co-operative Society vs Uganda Railway Corporation [2002] EA 1
1174
Article 132(1) The Constitution
1173

257

An appeal shall lie to the Supreme Court from such decisions of the Court of Appeal as may be
prescribed by law.1175Under S.6 an Appeal shall lie as of right to the Supreme Court where the
Court of Appeal confirms, varies or reverses a judgement or order, including an interlocutory
order, given by the High Court in the exercise of its original jurisdiction and either confirmed,
varied or reversed by the Court of Appeal.1176
Where an appeal emanates from a judgement or order of a chief magistrate or magistrate grade 1
in the exercise of his/her original jurisdiction, but not including an interlocutory matter, a party
aggrieved may lodge a third appeal to the supreme court on the certificate of the Court of Appeal
that the appeal concerns a matter of law of great public or general importance, or if the Supreme
Court considers, in its overall duty to see that justice is done, that the appeal should be heard. 1177
Court of Appeal
An appeal shall lie to the Court of Appeal from such decisions of the High Court as may be
prescribed by law.1178
An appeal shall lie to the Court of Appeal from such decisions of the high Court prescribed by the
Constitution, this Act or any other law.1179
An appeal shall be from the decrees or any part of decrees and from orders of the High Court to
the Court of Appeal.1180
High Court
The high Court equally has such appellate jurisdiction as prescribed by any law.1181
The High Court has an appellate jurisdiction to determine appeals which lie to it by virtue of any
enactment from decisions of Magistrates Courts and other subordinate courts. 1182
An appeal shall lie from the decrees or any part of the decrees and from the orders of a
magistrates court presided over by a chief magistrate or a magistrate grade 1 in the exercise of its
original civil jurisdiction or appellate jurisdiction with leave to the High Court. 1183
Any person aggrieved by any order of a registrar may appeal from the order to the High Court
and the appeal shall be by Notice of motion. 1184

1175

Article 132 (2) Constitution

S.6 (1) of Judicature Act
1177
S.6 (2) ibid
1178
Article 134 (2) Constitution
1179
S.10 Judicature Act
1180
S.66 o f Civil Procedure Act
1181
Article 139 (1) Constitution, S.14 (1) Judicature Act
1182
S. 16 Judicature Act
1183
S.220 (1)(a)(c) Magistrates Courts Act
1184
O.50 r 8
1176

258

Any person affected by an order or decision of a taxing officer may appeal within thirty days to a
judge of the High Court who on such appeal may make any order that the taxing officer might
have made.1185
An appeal shall lie from decrees and orders made on appeal by a chief magistrate, with the leave
of the Chief Magistrate or of the High Court to the High Court. 1186
A person aggrieved by the determination of a lower court on hearing an election petition may
appeal to the High Court or of Court of appeal against the verdict. 1187
Chief Magistrate Court
An appeal shall lie from the decisions, judgements and orders of a magistrates court, whether
interlocutory or final presided by a magistrate grade II or III, to a court presided over by a chief
magistrate.1188
An appeal shall lie from the judgement or orders of a town, division or sub county local council
court to a court presided over by a Chief Magistrate. 1189
LEAVE TO APPEAL
An appeal is a creature of a statute and where there is no such a right, then an appeal shall be by
leave of the court.
An appeal under the Civil Procedure Rules shall not lie from any other order save with leave of
the court making the order or of the court to which an appeal would lie, if leave were given. 1190
It is necessary, when considering the scope and value of this hurdle of leave to appeal, to be
aware of the importance of a right to appeal and its worth to the legal system.
According to Jacob,1191the appeal right is necessary;
(a)

to produce a just result in a particular case;

(b)

to compel judges to be judicial, reasonable and to apply the law and not to be arbitrary;

(c)

to provide a powerful corrective to any sense of grievance by the loser at first instance;
and

(d)

in a system applying the binding character of judicial precedent, to build up a uniform

system of the law.

1185

S.60 Advocates Act see also S.20 of Advocates Act

S.32 (2)(d) Local Council Courts Act 13 of 2006
1187
S.145 Local Government Act
1188
S.220 (1)(b) Magistrates Courts Act
1189
S.32 (2)(c) Local Council Courts Act
1190
O.44 r 1 Appeals lie as of right from orders under S.76 and O.44 r 1
1191
Pg 85 Sir J. Jacob, The Reform of Civil Procedural Law London, Sweet and Maxwell, 1982
1186

259

So far as achieving a just result is concerned, a right of appeal can perhaps, achieve, is the
avoidance of a legal injustice in other words, it can ensure that the law is interpreted and
preferably also applied correctly.
The quality of justice, which is the tough stone of a civilized society, depends in large measure on
the arrangements provided for its due administration. Accordingly, it is appropriate to consider
rights of appeal and indeed, leave to appeal, in terms of the 'justice' within a system.
According to Spry J. leave to appeal from an order in civil proceedings will normally be granted
where prima facie it appears that there are grounds of appeal which merit serious judicial
consideration.1192
Leave to appeal to the High Court from Magistrates Court 1193can only be granted where the
decision intended to be appealed from involves a substantial question of law or has caused or is
likely to cause substantial miscarriage of justice. 1194
Appealing against a refusal of leave
In extremely limited circumstances, it is possible to appeal against a refusal of leave the appeal.
It is entirely possible, for example, that they might find themselves having to obtain leave before
they can appeal against a refusal of leave.
The circumstances in which leave should be granted have not been defined. This is a matter left
to the discretion of the courts. In fact the judges have provided few clues, but it is known that
leave is considered desirable where a case involves a question of importance upon which
further argument and a decision of the Court of Appeal would be to the public advantage. 1195 If
the Court of Appeal refuses leave there can be no appeal against this decision unless it was denied
on a basis of question law.
In conclusion, there are few opportunities for appealing against a refusal of leave to appeal in
civil cases because the courts regard such opportunities as burdensome and contrary to the
principle of finality. Furthermore reasons for refusals of leave are rarely given, it thus becomes
rather difficult, if not impossible to challenge the lower courts reasoning.
Justification for the leave requirement
The main aim of the leave requirement, as the courts see it is to prevent frivolous and needless
appeals.
It is doing the potential litigant a service to refuse him leave to appeal, if his appeal is clearly
doomed to fail. This fetter on appeals helps to keep the administration of justice tidy. It is used
purely as an administrative protection to limit the number of appeals. However, it would be
highly undesirable if administrative convenience interfered with the judicial system.
In appeal cases where leave is refused, injustices may be suffered by litigants unconcerned
about whether their case has any social or legal significance. But this appears to be the price that
has to be paid given the restraints under which our legal system tends to operate.
1192

Sango Bay Estates Ltd. vs. Dresdner Bank A.G. [1971] EA 17

S.220 (1)(c) Magistrates Court Act
1194
Nangwe vs. Kuluma & Another HC Misc. Cause No.1 of 1988
1195
Buckle vs. Holmes [1926] 2 KB 125 at 127
1193

260

Procedure
An application for leave to appeal shall be by motion on notice. 1196
The party applying for leave has in the first instance the choice, whether to apply informally at
the time of delivery of judgment or order or making a formal application later.1197
The effect of failure to obtain leave of court where it is required will result in striking out of the
appeal,1198and the appeal is incompetent once leave is required and is not obtained. 1199
Appeals on matters of judicial discretion
Whenever a decision is based on the exercise of discretion of a judge, such a decision will not be
reversed merely because the appeal judges would have exercised the discretion differently if they
had been presiding in the court below. If on the other hand, the appellate court finds that the trial
judge has erred in principle or has taken into account irrelevant factors, or has omitted factors,
which are material, his decision may have to be reversed. 1200
When a decision against the exercise of discretion on an interlocutory matter is appealed against,
the appellate court must not substitute its own discretion for that of the judge. 1201
The function of the court in interlocutory appeals is primarily a reviewing function and the
judges decision should be reversed only in cases;
1.

Where the appeal court is satisfied that the trial judge has erred in principle;

2.

In order to promote consistency in the exercise of their discretion by judges as a whole

where there appear, in closely comparable circumstances, to be two conflicting schools of
judicial opinion as to the relative weight to be given to particular consideration. 1202

The court cannot be bound by a previous decision to exercise its discretion in a particular way
because it would be in effect putting an end to the discretion. Discretion necessarily involves
latitude of individual choice according to the particular circumstances, and differs from a case
where the decision follows ex-debito justitiae once the facts are known.1203
Discretion in Interlocutory Matters
As the majority of interlocutory matters are decided in the exercise of Registrars and Judges
discretion, it is basic principle that a court of appeal will not interfere by substituting its own
exercise of discretion unless it is shown that the court/judge below:
1196

O.44 r 4
G. M Combined (U) Ltd. vs. A.K. Detergents (U) Ltd. SCC App. No.23 of 1994 (unreported)
1198
Rule 82 Court of Appeal Rules
1199
Makhangu vs Kibwana [1995-98] 1 EA 175
1200
Mbogo vs Shah [1968] EA 93 Ward vs. James [1966] QB 279 at 293
1201
Clouds 10 Ltd. vs. Standard Chartered Bank (U) Ltd. SCCA 35 of 1992 (unreported)
1202
Burkett vs. James [1978] AC 297 at 317
1203
National Enterprise Corporation vs. Mukisa CACA No.42 of 1997 (unreported)
1197

261

(a)

Failed to exercise any discretion at all, or exercised it in a way in which no reasonable

judge would have exercised it; or

(b)

Erred in principle or in law; or

(c)

Took irrelevant matters into account; or

(d)

Misinterpreted the facts or evidence.1204

Time for appealing

The time for appeal begins to run when judgement or ruling is delivered. A notice of appeal must
be filed within fourteen days after the date of the decision which is desired to appeal. 1205
Except as otherwise specifically provided in any other law, every appeal shall be entered;
(a)

Within thirty days of the date of the decree or order of the court.

(b)

Within seven days of the date of the order of a registrar.1206

Appeals with leave notice of appeal must be filed and served within 14 days from the date of
granting of leave.
An appeal shall be instituted in the court by lodging in the registry, within sixty days after the
date when the notice of appeal was lodged. 1207 Where an application for a copy of the
proceedings has been made to the High Court the period for the preparation and delivery of the
proceedings shall be excluded in computation of the sixty days. 1208
Application for extension of time
Where any period is fixed by the court for doing of any act prescribed or allowed, the court may
in its discretion from time to time enlarge such period, even though originally fixed or granted
may have expired.1209The party who seeks indulgence of court to extend the time must be diligent
in applying for it expeditiously and without undue delay.1210
The court may for sufficient reason extend the time limited to do any act. 1211 Normally sufficient
reason for an extension of time must relate to the inability or failure to take the particular step. 1212
The applicant for extension of time has the burden of proving to court satisfaction that for
sufficient reason it was not possible for the appeal to be lodged in the time prescribed. 1213 The
discretion to grant an extension of time can be allowed in order for the appeal to be heard on its
1204

Supreme Court Practice 1995 5/1/56

Rule 76 (2) The Judicature (Court of Appeal Rules) Rule 72(2) The Judicature (Supreme Court Rules)
1206
S.79 (1) Civil Procedure Act Hajji Mohamed Nyanzi vs. Ali Segane [1992-93] HCB 218
1207
Rule 83 (1) &79(1) Court of Appeal rules & Supreme Court Rules
1208
Rule 83 (2) &79(2) Court of Appeal rules & Supreme Court Rules
1209
S.96 Civil Procedure Act
1210
Priscilla Wambi Mischek vs Samuel Thata & Others East African Court of Appeal C.A No.30 of 1976
1211
Rule 5 Court of Appeal Rules & Supreme Court Rules
1212
Mugo and Others vs. Wanjiru [1970] EA 481
1213
Devshi vs. Diamond Concrete Co. [1974] EA 493
1205

262

merits so that the dispute could be settled. The discretion must however be exercised judicially
on proper analysis of the facts and the proper application of the law to the facts. 1214
The court should not interfere with the discretion of a judge unless it is clear that he misdirected
himself in some matter and as a result arrived at a wrong decision or unless it was manifested
from the case as a whole that the judge was clearly wrong in the exercise of his discretion and
that there has been injustice.1215
An application for extension of time is usually before a full bench of appellate Court. However
under the new practice direction, an application for extension of time is now before the
Registrar.1216It is wrong to make an application for extension of time orally and before a full
bench after the application to strike out the notice of appeal had been filed. 1217
Some of the grounds for extension of time may include;
1.
2.
3.
4.

Delay through counsels absence1218;

Delay in obtaining court proceedings, which are subject of an intended appeal. 1219
Lack of stationery to prepare record.1220
A mistake by counsel.1221

That an applicant cannot rely on Rule 83(2) for extension of time unless a copy of the letter
requesting for the record of proceedings was served on the respondent. The purpose of this rule is
to show that the appellant was earnest in his intention to delaying the execution of the decree. 1222
Who may appeal
Any person who was a party to the action in the court below may, if the case is one for appealing
within the rules appeal. Sometimes persons who were not parties in court below may be
aggrieved by the judgment, and such persons may appeal with leave of the court which is to hear
the appeal.
NOTICE OF APPEAL
A notice of appeal is the first document that must be filed in an appeal. An appeal is brought by
way of notice of appeal.
Every notice of appeal shall state whether it is intended to appeal against the whole or part only
of the decision; and where it is intended to appeal against a part only of the decision, it shall
specify the part complained of, state the address for service of the appellant and state the names
and addresses of all the persons intended to be served with copies of the notice. 1223
1214

J. Hannington Wasswa vs. M. Onyango Ochola [1992-1993] HCB 103 (SC)

Ibid
1216
Practice Direction No1 of 2004Court of Appeal(Judicial Powers of Registrars)Practice Direction.
1217
Sewan Singh Bahra vs Halling Manzoor C.A.C.A No.27 of 1999 [1998-2000] HCB 37
1218
Shiv Construction Co. Ltd. vs. Endesha Enterprises Application SCCA App. No.15/92 (unreported)
1219
Delia Almeida vs. C. Almeida SCCA No.15 of 1990 (unreported)
1220
A.G. vs. M Heida SCCA No.5 of 1988 (unreported)
1221
Gurdial Singh Dhillion vs. Sham Kaur [1960] EA 795
1222
Kasirye, Baruhanga & Co. Advocates vs. U.D.B. SCCA No.2 of 1997 (unreported)
1223
Rule 76 (3)
1215

263

A notice of appeal shall be substantially in the Form D in the schedule to these rules and shall be
signed by on behalf of the appellant. 1224A purported notice of appeal without an endorsement as to
date and time of lodging a document by a registrar is a nullity and cannot initiate a valid
appeal.1225
An intended appellant shall, before or within seven days after lodging notice of appeal, serve
copies of it on all persons directly affected by the appeal. 1226 Any failure to serve a notice of
appeal within the time required renders an appeal incompetent 1227 and it is the duty of the
appellant to prove that he/she had effected valid service on them. 1228If service is not done within a
prescribed period, then a party may seek leave to serve the notice out of time. 1229
Figure 7NOTICE OF APPEAL

THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA AT KAMPALA
XYZ . APPELLANT
VERSUS
ABC RESPONDENT
NOTICE OF APPEAL
TAKE NOTICE that XYZ the Appellant being dissatisfied with the decision by Honourable
Justices of Appeal Hon. Mr. Justice C.M Kato J.A., Hon. Mr. Justice J.P. Berko J.A. and Hon. Mr.
Justice A. Twinomujuni given at Kampala on the 5 th January, 2001 intends to appeal to the
Supreme Court of Uganda against the whole of the said decision.
The address of service of the appellant is c/o NKM Advocates Plot 38, William Street, P.O. Box
7699, Kampala.
It is intended to serve copies of this notice on:DEF Advocates
Plot 7 Parliament Avenue
1st Floor Bauman House
P O Box 4237
KAMPALA
(Counsel for the Respondent)
Dated at Kampala this day of . 2001.
1224

Rule 76 (5.
Gaba Beach Hotel Ltd vs Cairo International Bank Ltd CACApp. No.34 of 2003
1226
Rule 78 Court of Appeal Rules
1227
East and Southern African Development Bank(PTA) vs Concorp International Ltd CACApp No.78 of
2001 Francis Nansio Micah vs Nuwa Walakira SCCA No.24 of 1994
1228
Gaba Beach Hotel Ltd vs Cairo International Bank Ltd CACApp. No.34 of 2003 Horizon Coaches vs
Francis Mutabazi and 3 others SCCA No.20 of 2001
1229
Afric Co-operative Society vs Uganda Railways Corporation [2002] EA 1
1225

264

Signed by
______________________________________________
NKM ADVOCATES
COUNSEL FOR THE APPELLANT

To:

The Registrar
Court of Appeal
Kampala

Lodged in the Court of Appeal at Kampala this .day of 2001.

.
REGISTRAR
DRAWN AND FILED BY:
NKM ADVOCATES
PLOT 38, WILLIAM STREET
P.O. BOX 7699
KAMPALA

MEMORANDUM OF APPEAL
A memorandum of appeal shall set forth concisely and under distinct heads, without argument or
narrative, the grounds of objection to the decision appealed against, specifying the points which
are alleged to have been wrongly decided, and nature of the order which it is proposed to ask the
court to make.1230A memorandum of appeal must be lodged within sixty days. 1231
The appellant shall, before or within seven days after lodging memorandum of appeal and the
record of appeal in the registry, serve copies of them on each respondent who has complied with
the rules.1232

1230

O.43 r 1,Rule 86 (1) &Rule 82(1) Court of Appeal rules & Supreme Court Rules
Rule 83 Court of Appeal Rules
1232
Rule 88 Court of Appeal Rules
1231

265

Figure 8Copy of MEMORANDUM OF APPEAL

THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL AT KAMPALA
CIVIL APPEAL NO OF 2001
(Appeal from the Judgment/Decree of the High Court of Uganda before the Honourable Lady
Justice S.B. Bossa (Mrs) dated 25th February, 2000 arising in HCCS No.244 of 1992)
BETWEEN
ABC .APPELLANT
VERSUS

1. XYZ
2. VH Co. LTD. ..RESPONDENTS
(Appeal from the Judgment/Decree of the High Court of Uganda before the Honourable Lady
Justice S.B. Bossa (Mrs) dated 25th February, 2000 arising in HCCS No.244 of 1992)
MEMORANDUM OF APPEAL
ABC the above named appellant appeals to the Court of Appeal against the whole of the above
mentioned decision on the following grounds:1.

The Learned trial Judge erred in law and in fact when she proceeded to hear and
determine the suit on amended pleadings which were unlawfully and improperly before
court.

2.

The Learned trial Judge erred in law and fact when she granted reliefs to the 2 nd
defendant that had not been specifically claimed nor asked for.

3.

The Learned trial Judge erred in law and fact when she wrongly attributed acts of fraud to
the Appellant and consequently held that he was not a bonafide purchaser for value
(without notice).

4.

The Learned trial judge erred in law and fact when she decided the sit on a new issue of
estoppel that was not before court by way of pleadings, evidence or submissions.

5.

The Learned trial judge erred in law when she made findings and decided the appeal
granting reliefs to the respondent on the issue of the validity of the substitute title which
was not before court.

6.

The Learned trial judge erred in law and fact when she erroneously attributed and/or
visited the irregularities in preparing the substitute title to the appellant and subsequently
held that the substitute title and all subsequent dealings on it were null and void.

7.

The Learned trial judge erred in law and fact when in reaching her decision she engaged
in conjuncture and speculation thereby basing her decision on erroneous assumptions not
supported by the evidence on record.

266

IT IS PROPOSED to ask COURT for an ORDER that the JUDGMENT/DECREE of the High
Court of Uganda dated 25th February 2000 dismissing the appellants suit and granting reliefs and
remedies to the 2nd respondent be set aside, AND INSTEAD SUBSTITUTION an order granting
judgment to the Appellant be made.
WHEREFORE the Appellant prays that this appeal be allowed with costs here and below.
Dated at Kampala this . day of . 2001.
______________________________________________
NKM ADVOCATES
COUNSEL FOR THE APPELLANT

To:

The Honourable
The Judges of the Court of Appeal
KAMPALA

Copies to be served on:

1.

D.E. & Co. Advocates

17/19, Diamond Trust Building
P.O. Box 182
Kampala
Counsel for the Respondents

Lodged in the Court of Appeal Registry at Kampala on the .. day of 2001 under
my Hand and Seal of this Court.
____________
REGISTRAR
Drawn and Filed By:

NKM ADVOCATES
PLOT 103, BUGANDA ROAD
P.O. BOX 7699
KAMPALA

RECORD OF APPEAL
Where a notice of appeal has been filed and served, the appellant must apply to the trial court
requesting for a record of the proceedings. 1233 An appellant shall not be entitled to rely on this sub
rule unless his/her application for the copy was in writing and a copy of it was served on the
respondent, and the appellant has retained proof of that service. 1234 Where an application for a
1233

Rule 83(2) Court of Appeal Rules Plaxenda Sembatya vs. Tropical Africa Bank SCCA No.6 of 1987

267

copy of the proceedings has been made, the period with which an appeal must be instituted does
not include the period taken by the registrar in preparing the copy of the proceedings. 1235
Figure 9LETTER APPLYING FOR RECORD OF PROCEEDING

REF: NKM/CS/103
15th January, 2001
The Registrar
Court of Appeal of Uganda
KAMPALA
Your Honour,
RE:

CIVIL APPEAL NO. 33 OF 2000

XYZ
VERSUS
ABC

We represent the applicant in the above case wherein judgment was delivered on 5 th January,
2001.
The appellant being dissatisfied with the judgment of the on. Mr. Justice C. M Kato, J.A., Hon.
Mr. Justice J.P. Berko, J.A., Hon. Mr. Justice A. Twinomujuni, J.A. and the orders therein wishes
to appeal to the Supreme Court of Uganda.
We therefore apply to be availed with the full record of proceedings and judgment before the
Court of Appeal.
Much obliged.
NKM ADVOCATES
c.c.

The Registrar
Supreme Court
KAMPALA

c.c.

BCD & Co. Advocates

P.O. Box 4237
KAMPALA

Where an appeal lies from High Court in its original jurisdiction, the record of appeal shall
contain the following documents:1236
1234

Rule 83(3) Court of Appeal Rules East and Southern African Development Bank (PTA) vs Concorp
International Ltd CACApp No.78 of 2001 Francis Nansio Micah vs Nuwa Walakira SCCA No.24 of 1994
1235
Ephraim Ongom vs. Francis Benega SCCA No. 10 of 1987 (unreported)
1236
Rule 87 (1) Court of Appeal Rules

268

(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)

An index of all documents in record with numbers of page;

Addresses of service;
Pleadings;
The trial judges notes of the hearing;
The transcript of any shorthand notes taken or any other notes recorded at the trial;
The affidavits read and all documents put in evidence;
The judgment or reasoned order;
The order if any giving leave to appeal;
Any other documents necessary for the proper determination of the appeal, including any
interlocutory proceedings which may be directly relevant.

Upon receipt of the record of appeal, the appellant is required to lodge his appeal within sixty
days1237and shall contain and fulfill the following;
(a)
(b)
(c)
(d)

Memorandum of appeal
The record of appeal
The prescribed fee (court fees)
Security for the costs of the appeal.

If the appellant fails to comply with the requirements, the respondent may apply to court to
dismiss the appeal for want of prosecution. An appellant whose appeal has been dismissed on this
ground may apply by notice of motion to have his appeal restored, and the court may, in its
discretion, order restoration of the appeal on such terms as it thinks fit.
An appellant who seeks an extension of time to file a record of appeal out of time must show
good and sufficient reason for the delay. It is the duty of the intending appellant to actively take
the necessary steps to prosecute the appeal. It is not the duty of the respondent or the court to do it
for him.1238
Courts have often ruled that the discretion to extend time for filing a complete record of appeal
will not be exercised where good and sufficient reasons for the delay have not been shown to
persuade court to extend the time to give cogent reasons for the delay. The above principle has
been expressed by Lord Guest1239as follows:
The rules of court must prima facie be obeyed, and in order to justify a court in extending
the time during which some step in procedure requires to be taken, there must be some
material on which the court can exercise its discretion if the law were otherwise, a party in
breach would have an unqualified right to an extension of time which would defeat the
purpose of the rules, which is to provide a time table for the conduct of litigation.
The above principle is compatible with the idea of fair play of justice that a judgment creditor
should not be prevented from enforcing its judgment by an appellant who fails to prosecute its
appeal for no good reason.

1237

Rule 83(1) Court of Appeal rules

Mparo General Contractors Ltd vs Uganda National Examinations Board C.A.C.App No.82 of 2004 see
also Utex Industries Ltd vs Attorney General S.C.C.App No.52 of 1995 Ribeero vs Siqueira &Facho [1936]
ALL.ER 916 Bhatt vs Tejwant Singh [1962] EA 497 at 489
1239
Ratman vs. Cumarasamy [1964] ALL ER 933 at 935
1238

269

THE HEARING
An appeal is by way of re-hearing, or retrial. 1240 This does not mean that the court will hear a
fresh the oral testimony of witnesses nor that it will exercise its own discretion unfettered by the
discretion of the court below. Rather, it means that the court is limited to inquiring whether there
has been an error in the court below and if so, ordering a new trial; instead, the court may review
the case on the basis of the evidence contained in the record and may make such order as the case
may require.1241 It is the duty of the first appellate court to consider and evaluate the evidence and
come to its own conclusion.1242
The appellate court has power to admit fresh evidence not adduced in the court below,1243either by
affidavit, deposition, or oral examination, but will do so after proving; 1244
(a)

that the evidence could not have been obtained with reasonable diligence for use at trial.

(b)

the evidence must be such that, if given, it would probably have an important influence
on the result of the case, though it need not be decisive.

(c)

The evidence must be such as is presumably to be believed, or in other words, it must be

apparently credible, though it need not be incontrovertible.

FINDINGS OF FACT
The appellate court is not bound to follow the trial judges findings of fact if it appears either that
he failed to take account of particular circumstances or probabilities or if the impression of the
demeanor of the witness is inconsistent with the evidence generally. 1245 The court is under a duty
to subject the entire evidence on the record to an exhaustive scrutiny and to re-evaluate and make
its own conclusion, while bearing in mind the fact that the court never observed the witnesses
under cross-examination so as to test their veracity.1246
The general principle is that whereas questions of law are argued afresh in an appellate court,
there is no presumption that the trial judge was correct, the finding of fact of the trial judge will
not normally be interfered with, as he will have had the advantage of seeing and hearing the
witnesses giving evidence, and will have been in position to assess their credibility a function
not available to the appellate court. Accordingly, an appellate court should interfere only where
the trial judge can be shown to have clearly erred in reaching his/her conclusions of fact.
APPLICATIONS FOR LEAVE TO ADDUCE ADDITIONAL EVIDENCE ON APPEAL.
There must be sufficient reason to justify reception of additional evidence, whether or not to take
additional evidence is a matter entirely within the discretion of the appellate court. it is very rare

1240

Selle vs. Associated Motor Boat Company [1968] EA 123

Sime S. A practical Approach to Civil Procedure (1994) LONDON Blackstone, P.522
1242
Luwero Green Acres Ltd. vs. Marubeni Corporation SCCA No. 19 of 1995 (unreported)
1243
Rule 30 Court of Appeal Rules
1244
Ladd vs. Marshall [1954] 1 WLR 1489 at 1491
1245
American Express International Banking Corp. vs. Atulkumar Patel CACA No.8 of 1986 (unreported)
Langdale vs. Danby [1982] 1 WLR 1123 at 1133, Selle vs. Associated Motor Boat Company Ltd. Supra n
1246
Sanyu Lwanga Musoke vs. Galiwango SCCA No. 48/1995 (unreported)
1241

270

that an appellate court allows an appellant to adduce additional evidence in that court unless
there are exceptional grounds.1247
A single judge of court of appeal has jurisdiction to hear an application for taking additional
evidence on appeal or an appeal.1248
On the hearing of an appeal, it is generally open to the Court of Appeal to order a new trial. It
may be that the judge has not really decided the case at all or where a judgment has been obtained
by fraud.
The Court of Appeal must be presented with solid grounds before it will exercise its discretion. 1249
The Court of Appeal is not bound to order a new trial unless some substantial wrong or
miscarriage has been occasioned by the matter complained of. These cases may include
situations where;
1.
2.
3.

The judge wrongly receiving or wrongly rejecting evidence;

The decision was against the weight of the evidence;
The fresh evidence has been newly discovered.

Also it may be that the judge or one of the advocates engaged in the case misconducted himself
/herself to such a degree that the trial has been wholly unsatisfactory. This was evidenced in a
case in which a judge had interfered so much in the examination and cross-examination of
witnesses that counsel was unduly hampered in the presentation and testing of evidence. 1250
SECOND APPEAL
Except where otherwise expressly provided in this Act or by any other law for the time being in
force, an appeal shall lie to the Court of Appeal from every decree passed in appeal by the High
Court, on any of the following grounds, namely thata. The decision is contrary to law or to some usage having the force of law;
b. The decision has failed to determine some material issue of law or usage having the force
of law;
c. A substantial error or defect in the procedure provided by this Act or by any other law for
the time being in force, has occurred which may possibly have produced error or defect in
the decision of the case upon the merits.1251
THIRD APPEAL
Where an appeal emanates from a judgment or order of a Chief Magistrate or Magistrate Grade I
in the exercise of his or her original jurisdiction but not including an interlocutory matter, a party
aggrieved may lodge a third appeal to the Supreme Court on the certificate of the court of Appeal
that the appeal concerns a matter or matters of law of great public importance, or general
1247

Dharansy Mararji and Sons Ltd. vs. S.N. Kara SCCA No. 27 of 1996, Taylor vs. Taylor (1944) 11
EACA 46, Dick vs. Koinage [1973] EA 165
1248
Rohini Damji Sidpra vs. Vijendra & Others Rule 52 SCCA No.48 of 1996 (unreported)
1249
Watt vs. Watt [1905] AC 115, Automatic Wood Turning Co. vs. Stringer [1975] AC 544
1250
Jones vs. National Coal Board [1957] 2 QB 55
1251
S.72 Civil Procedure Act

271

importance, or if the Supreme Court considers in its over all duty to see that justice is done, that
the appeal should be heard.1252
Where leave to appeal or a certificate that a point of law of great public or general importance has
been granted or refused by the court of appeal immediately after the delivery of that courts
decision against which it is desired to appeal, a statement that leave or a certificate has been
granted or refused shall be included in the order 1253.
When a third appeal is made from the Court of Appeal to Supreme Court the record of appeal 1254
will have to include the order, if any giving leave to appeal and also the certificate of the Court of
appeal that a point or points of law of great public importance arise. 1255
If any of the above documents is missing from the record of appeal then such appeal is
incompetent. These documents are essential documents because they indicate that the appeal
merits consideration by this court. Their absence makes the appeal incompetent and it should be
struck out.1256
REVIEW
Introduction
It is the general principle of law that the court after passing judgement becomes functus officio
and cannot revisit the judgement or purport to exercise a judicial power over the same matter.
However there are exceptions to this general rule as set out under the law that allows court to
review it judgement.
Any person considering himself or herself aggrieved by decree or order from which an appeal is
allowed but from which no appeal has been preferred or by a decree or order from which no
appeal is allowed may apply for a review of judgment to the court that passed the decree or made
the order.1257
WHO MAY APPLY
The expression any person aggrieved means a person who has suffered a legal grievance. 1258
Such a person who is aggrieved may be a party to the suit or any third party may apply for review
but such third party must establish that he is an aggrieved person. 1259
A person aggrieved has been further defined to mean a person who has suffered a legal grievance,
a man against whom a decision has been pronounced which has wrongfully deprived him of
something or wrongfully refused him something or wrongfully affected his title to something, it is

1252

S.6 (2) Judicature Act, S.73 Civil Procedure Act

Rule 87(12)& Rule 83(9) Court of Appeal Rules &Supreme Court Rules
1254
Rule 83(2) c
1255
Rule 83 (2) h
1256
Beatrice Kobusingye vs Fiona Nyakana and another SCCA No. 18 of 2001 decided on 23-05-2002.
1257
S.83 O.46 Civil Procedure Act and Rules
1258
In Re Nakivubo Chemists (U) Ltd. [1979] HCB 12, Mohamed Alibhai vs. E.E. Bukenya Mukasa SCCA
No.56 of 1996 (unreported)
1259
Ibid, Adonia vs. Mutekanga [1970] EA 429, Chittalley and Rao 7th Edition at pp 4460
1253

272

not sufficient that he has lost something which he would have obtained if another order had been
made.1260
A decree or order against a person not a party is on general principles of law, not binding on him.
Such a person, therefore, cannot have a legal grievance against a decree or order and
consequently cannot apply for review of the decree or order under the rule. 1261
Conditions for Review
The three cases in which a review of judgment or order is allowed are those of:(a)

Discovery of new and important matters of evidence previously overlooked by excusable

misfortune.

(b)

Some mistake or error apparent on the face of record.

(c)

For any other sufficient reason, but the expression sufficient should be read as meaning
sufficiently of a kind analogous to (a) and (b) above. 1262

PROCEDURE
Applications for review are to be made to the same judge who made them 1263save when he is no
longer on the bench.1264
Where a case is admitted to review by one judge and is afterwards tried by another, the new judge
must confine himself to the points directed by the other for review. A judge granting a review on
one point has no power to go into and decide a matter already finally adjudicated. 1265
The court may, if there is no sufficient ground for review dismiss the application. 1266 Withdrawal
of counsel is not a ground for review.1267
In considering an application for review, court exercises its discretion. Review is a matter of
discretion which must be exercised judicially.1268
The High Court has no power to review its own judgment given on appeal under any special
jurisdiction.1269 Review like appeal is the creature of statute and a court has no inherent power to
review or alter its own judgments, except for the limited purpose of correcting clerical or
mathematical errors.1270
1260

Associated Drivers and Operators Defensive Institute for Taxi and Traveler Agencies (ADDODITA) vs.
UTODA and Masaka Municipality Council Misc. Appl. Arising out of HCCS 451/1998 at Masaka
1261
Ibid
1262
In Re Nakivubo Chemists (U) Ltd. Supra n Yusuf vs. Nokrach [1971] EA 104,Among Annet Anita vs
Electoral Commission &Hon Akol Rose Okullu H.C.Misc.Application No.47 of 2006 at Soroti
1263
O.46 r 4 In Re Dr. John Chrizestom Kiyimba Katto Miscellaneous Cause No. 29 of 1989 (unreported)
1264
Levi Outa vs. UTC [1975] HCB 340
1265
Henry Munyanganizi vs. General Machinery Ltd. HCCS No, 468 of 1983 (Unreported)
1266
O.46 r 3
1267
Baguma vs. Kadoma [1979] HCB 340, Buladina Nankya vs. Bulasio Konde [1979] HCB 239
1268
Abdulla Jaffer Devji vs. Ali RMS Devji [1958] EA 558
1269
Erimiya Serunkuma vs. Elizabeth Nandyose [1959] EA 127
1270
S.99 Civil Procedure Act

273

Review is not an end in itself but it is intended to correct a mistake and enable parties to settle
their rights in a proper and conclusive manner.1271
An application for review must be made by motion on notice. 1272
An application for review under rule 2 of Order 46 is different from an application for review
made under rule 1 of Order 46 since it requires some ground other than discovery of new and
important matter of evidence and other matters referred to in rule 1 should be made. Unlike the
application in rule 1 which is made to the court, the application under rule 2 is made not to the
court but to the same judge who made the order sought to be reviewed. 1273
An appeal against a refusal for review must be based on the laws governing review. These are not
necessarily the same as those which govern appeal against the decision sought to be reviewed. 1274
REVISION
The High Court may call for the record of any case which has been determined by any
Magistrates Court if such court appears to have;
(a)

Exercise a jurisdiction not vested in it in law; or

(b)

Failed to exercise a jurisdiction so vested; or

(c)

Acted in the exercise of its jurisdiction illegally or with material irregularity or injustice,

The High Court may revise the said case and may make such order therein as it thinks fit. 1275
The above provision was reiterated in the case of Elizabeth Bameka vs. Dodovico Nviiri.1276
The section relates only to jurisdiction and the High Court will not interfere merely because a
lower court allowed an application which was barred by limitation. 1277 The court has power to
revise an interlocutory order.1278 An order purporting to attach salary which could not lawfully be
enforced is revisable.1279
POWER OF HIGH COURT
The High Court has the right to revise an interlocutory order of subordinate court. In the exercise
of its discretion it is well established that the High Court will not necessarily interfere in every
case where the subordinate court has made an irregular order unless its failure to do so would
result in substantial injustice.1280
1271

Ladak A M Hussein vs. Griffiths Isingoma Kakiiza SCCA No. 8 of 1995 (unreported)
O.46 r 8 Pro Kabinenda vs. Sterling Astaldi (U) Ltd. Civil Suit No. 369 of 1968 (unreported)
1273
Rohini Damji Sidpra vs Freny Damji Sidpra & Others SCCA No.60 of 1995
1274
Rohini Damji Sidpra vs Freny Damji Sidpra & Others SCCA No.60 of 1995
1275
S.83 Civil Procedure Act
1276
[1973] ULR 134
1277
Matemba vs. Yamulinga [1963] EA 643
1278
Sandar Mohamed vs. Charan Singh [1959] EA Hassam Karim & Co. Ltd. vs. African Import &
Export Central Corporation Ltd. [1960] EA 396
1279
Karia vs. Wambura [1961] EA 91
1280
Muhinga Mukono vs. Rushwa Native Farmers Co-op Soc. Ltd. [1959] EA 595
1272

274

The power of revision shall not be exercised in the following instances and the parties shall be
given the opportunity of being heard or where, from the lapse of time or other cause the exercise
of such power would involve serious hardship to any person.
The court cannot exercise its revisional power where there was lapse of time or other cause; the
exercise of such power would involve serious hardship to any person. 1281
A decision of a Chief Magistrate exercising an appellate jurisdiction is subject to revision. 1282
Where a Chief Magistrate makes an order without competent jurisdiction, such order is not
competent.1283 Such an order is subject to revision by invoking the supervisory jurisdiction of the
High Court.1284
Before the High Court exercises its revision powers, it must be moved by the party aggrieved. 1285
PROCEDURE
The procedure of application for revision is that an aggrieved party writes to the High Court
Registrar drawing his attention to irregularity of a surbodinate court and request that the matter be
brought before a judge.1286 However, in practice the High Court has always insisted that the
aggrieved person should make a formal application to court by way of Notice of Motion.

1281

Kabwengure vs. Charles Kanjabi [1977] HCB 89

Juma vs. Nyeko [1992] KALR 78
1283
Mubiru vs. Kayiwa [1988-90] HCB 80, Mwatsahu vs. Maro [1967] EA 42
1284
Byanyima Winnie vs. Ngoma Ngime HC Civil Revision 0009 of 2001 at Mbarara (unreported)
1285
Kahuratuka vs. Mushorishori & Co. [1975] HCB 13
1286
LDC vs. Edward Mugalu [1990-91] 1 KALR 103
1282

275

CHAPTER TWENTY
CONSTITUTIONAL LITIGATION
Interpretation of Constitution
The procedure for applying or interpreting the Constitution is quite different from the other
procedure in civil litigation. Interpretation of the Constitution is by way of a reference or
petition. Any question as to the interpretation of the Constitution shall be determined by the Court
of Appeal sitting as a Constitutional Court.1287
Every court in Uganda is vested with jurisdiction to construe, apply and enforce provisions of the
Constitution in relation to any dispute before it. 1288 Whoever disagrees with decision of such
court in relation to the interpretation of the Constitution may petition the Constitutional
Court.1289For the Constitutional Court to have jurisdiction, the petition must show,on the face of it
that interpretation of a provision of the constitution is required, in accordance with Article 137(3)
of the Constitution.1290
Where any question as to the interpretation of the Constitution arises in a court of law, the court
may if it is of the opinion that the question involves a substantial question of law and if any party
requests it to do, refer the question to the Constitutional Court. 1291
Who may petition
A person who alleges that an Act of Parliament or any other law or anything in or done under
authority of any law or any act or omission by any person or authority,is inconsistent with or in
contravention of a provision of this Constitution,may petition the constitutional court for a
declaration to that effect,and redress where appropriate. 1292
Where a reference to the court regarding any question as to the interpretation of the Constitution
is to be made, the original court shall submit the reference stating the specific questions or issues
to be answered or resolved by the court.1293
The court making the reference must comply with the rules of interpretation. Where a reference
to the court regarding any question as to the interpretation of the Constitution is to be made, the
original court shall submit the reference in the terms of the form specified in the schedule to the
rules, stating the specific question or issue to be answered or resolved.

1287

Article 137 (1)

Kyamanywa Simon vs. Uganda Supreme Court Criminal Appeal No. 16 of 1999 (unreported)
dissenting judgment of Justice Kanyeihamba
1289
Ibid
1290
Charles Kabagambe vs Uganda Electricity Board Constitutional Petition No.2 of 1999
1291
Article 137 (5)
1292
Article 137(3) Serugo vs. A.G. and KCC Constitutional petition No. 14 of 1997
1293
Rule 18 (1) The Constitutional Court (Petitions and References) Rules SI 91 of 2005
1288

276

Where the procedure for reference was not followed it is to be remitted to the trial judge to
comply with requirements of a reference 1294. The court may find that there is no question of
interpretation if there is a legislation which has tried to interpret the same issue. 1295
A Court before which a request for a reference is made is not merely a conduit to transmit the
question for a reference but must consider whether there is merit in the application and that it falls
within the letter and spirit of the relevant provisions of the Constitution. Parties or counsel
should identify issues in their cases or disputes requiring interpretation of the Constitution early
enough and lodge necessary petitions directly before the Constitutional Court 1296.
Interpretation of Constitution against other legislation
Where criminal proceedings are pending in another court and a petition is brought to the
Constitutional court in respect of the same matter, then the petition should be stayed pending the
determination of the criminal matter in the trial court. 1297
In addition, where an Article in the Constitution has been incorporated in a legislation and such a
legislation has been interpreted otherwise, the Constitutional Court cannot lose jurisdiction
merely because the Act has incorporated certain Articles. Articles of the Constitution cannot be
diluted by incorporation since there is always supremacy of the Constitution. 1298
Form and Content of the Petition
The petition shall be in the form specified in the schedule and it must allegea. That an Act of Parliament or any other law or anything in or done under the authority of
any law is inconsistent with or in contravention of the provision of the constitution; or
b. That any act or omission by any person or authority is inconsistent with or in
contravention of the provision of the contravention. 1299
The petition shall be accompanied by an affidavit and a list of documents on which the petitioner
intends to rely.1300
The petition shall be presented by the petitioner by lodging it at the registry of the court with
eight copies of the petition for use by court and for service on the attorney general,if the Attorney
general is not a party.1301

1294

In the matter of Sheik Abdul Karim Sentamu Constitutional Reference No. 7 of 1998 (unreported)
Joseph Ekemu & David Kadidi Kamwada vs. Uganda Constitutional reference No. 1 of 2000 (unreported)
Attorney General vs. Milton Obote Foundation SCCA No. 7 of 1992 (unreported)
1295
Josephine Nanteza vs. Masinga George Constitutional Petition No. 9 of 1998
1296
Rtd Col.Kizza Besigye vs Yoweri Museveni &Electoral Commission Supreme Court Presidential
Election Petition No.1 of 2006
1297
Arutu John vs. Attorney General Constitutional Petition No,4 of 1997 (unreported)
Charles Onyango Obbo vs. Attorney General Constitutional Petition No.15 of 1997 (unreported)
1298
Al Hajj Nasser Ntege Sebaggala vs. Attorney General (2) Electoral Commission (3) City Council of
Kampala, Constitutional Petition No. 1 of 1999 (unreported)
1299
Rule 3(2) of The Constitutional Court (Petitions and References) Rules 2005
1300
Rule 3(7)(8) ibid
1301
Rule 4 ibid

277

THE REPUBLIC OF UGANDA

IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA
CONSTITUTIONAL PETITION NO. 01 OF 2006
1.
2.
3.

KABAGAMBE ASOL
FARAJ ABDULAH .PETITIONERS
THE ATTORNEY GENERAL
VERSUS

1.
2.

THE ELECTORAL COMMISSION

DR. KIIZA BESIGYE..

RESPONDENTS

PETITION
(Under Articles 50(1) and (2) and 137 (1) and (3) of the Constitution of the Republic of Uganda, 1995, and
the Modification to the Fundamental Rights and Freedoms
(Enforcement Procedure) Rules, 1992, Directions 1996.)
The Petition of KABAGAMBE ASOL and FARAJ ABDULLAH all of C/o T.B. & Co. Advocates whose
address is stated at the foot of this Petition showeth as follows:1.

Your Petitioners are persons having interest in, and are affected by the following matters
being inconsistent with and in contravention of provisions of the 1995 Constitution whereby
your Petitioners are aggrieved.
a.

That the act of the 1 st Respondent in not following the legal advice of the 3 rd Petitioner,
the Attorney General contained in letter dated 7 th December 2005 which advised that the
nomination of the 2nd Respondent, Col. Dr. Kiiza Besigye should not proceed, was
inconsistent with and in contravention of article 119 of the Constitution and was therefore
null and void.

b.

That the act of the 1st Respondent in accepting the nomination of the 2 nd Respondent as a
Presidential Candidate in absentia and against the advise of the 3 rd Petitioner, the Attorney
General, was inconsistent with and in contravention of articles 103 and 119 of the
Constitution, and therefore null and void.

c.

That the act of the 1st Respondent in accepting the nomination of the 2 nd Respondent as a
Presidential Candidate in absentia and against the advice of the 3 rd Respondent was
inconsistent with and in contravention of articles 98, 102 and 119 of the Constitution, and
therefore null and void.

d.

That the 2nd Respondent accepted the said nomination, which was, conducted illegally
and unconstitutionally against the advice of the 3 rd Petitioner and the 2nd Respondent has
continued to benefit and enjoy the said illegal and unconstitutional nomination with the
assistance of the 1st Respondent.

278

e.

2.

That after the 3rd Petitioner who is the principal legal advisor of Government, gave his
legal advice to the 1st Respondent ignored the advice of the 3rd Respondent and made no
steps to enforce his Constitutional powers under Article 119 of the Constitution that had
been violated by the 1st Respondent.

Wherefore your Petitioners pray that this Court may grant the following declarations and
orders, namely:
a.

A declaration that the act of the 1 st Respondent in not following the legal advice of the
Attorney General which advised that the nomination of the 2 nd Respondent should not
proceed, was inconsistent with and in contravention of article 119 of the Constitution.

b.

A declaration that the act of the 1 st Respondent in accepting the nomination of the 2 nd
Respondent as a Presidential Candidate in absentia and against the advice of the Attorney
was inconsistent with and in contravention of articles 103 and 119 of the Constitution.

c.

A declaration that the act of the 1 st Respondent in accepting the nomination of the 2 nd
Respondent as a Presidential Candidate was inconsistent with and in contravention of
articles 98, 102 and 119 of the Constitution, and therefore null and void.

d.

An order declaring the nomination of Col. (Rtd) Kiiza Besigye as a Presidential

Candidate null and void.

e.

Permanent Injunction restraining the 1st Respondent from listing the 2nd Respondent as
one of the Presidential Candidates on the ballot papers in the fort coming Presidential
Elections.

f.

An order that the 1st Respondent pays the costs of this Petition.

This Petition is supported by the affidavits of KABAGAMBE ASOL AND FARAJ ABDULLAH which
are hereto annexed and upon which Counsel for the Petitioners will rely.
The Petitioners Advocates and their address of service in these proceedings shall be T.B. & Co. Advocates,
Plot 42, Kampala Road P.O. Box 67597, Kampala.

Dated at Kampala this ..day of 2006

_____________________
FIRST PETITIONER
______________________
SECOND PETITIONER
TO BE SERVED ON:
1.

The Secretary, Electoral Commission,

Kampala

2.

Col. (Rtd) Dr. Kiiza Besigye

DRAWN & FILED BY:

T.B.& CO. ADVOCATES,

279

PLOT 1 JINJA
1ST FLOOR SUITE 8, PLOT 42,
P.O. BOX 68597,
JINJA

Answer by Respondent
A respondent on whom a petition has been served shall within three days after service furnish his
or her address and later the respondent shall within seven days after service file an answer to the
petition.1302
The respondent shall lodge eight copies of the answer to the petition with the registrar each
accompanied with an affudavit stating the facts upon which the respondent relies in support of
his/her answer.1303
Figure
THE REPUBLIC OF UGANDA
IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA
CONSTITUIONAL PETITION NO. 01 OF 2006
1.
2.
3.

KABAGAMBE ASOL
FARAJ ABDULLAH
THE ATTORNEY GENERAL

.. PETITIONERS
VERSUS

1.
2.

TH ELECTORAL COMMISSION
DR. KIZZA BESIGYE.. RESPONDENTS
1ST RESPONDENTS ANSWER TO THE PETITION

The 1st Respondents Answer to the Petition showeth:

Save what is herein expressly admitted, the 1 st Respondent denies each and every allegation contained
in the Petition as if the same were set forth and traversed seriatim.
The 1st Respondent avers that the allegations contained in paragraph 1 of the Amended Petition are
false, frivolous and vexatious and that the Petitioners are not entitled to the reliefs sought in
paragraph 2 of the Petition.
In specific reply to paragraph 1 (a) of the Amended Petition, the 1 st Respondent avers that its
independence of all persons and or authorities including the Hon. Attorney General is guaranteed
by the Constitution.
In further reply to paragraphs 1 (a) and (b) of the Amended Petition, the 1 st Respondent avers that its
act of not following the advice of the Hon. Attorney General that the nomination of Col. (Rtd) Dr.
Kizza Besigye should not proceed was not inconsistent with or in contravention of articles 103 and
119 or any other article of the Constitution s alleged or at all.
In reply to paragraphs 1 (b) and (c) of the Amended petition, the 1 st Respondent avers that its
acceptance of the nomination of Col. (Rtd) Dr. Kizza Besigye as a Presidential Candidate was not
1302
1303

Rule 6 supra
Rule 6(4)(5) supra

280

in absentia nor inconsistent with not in contravention of articles 98, 102, 103 and 119 of the
Constitution as alleged or at all. The nomination was therefore lawful and proper in fact and in
law.
In reply to paragraph 1 (e) of the Amended Petition, the 1 st Respondent aver that the 2nd Respondent
lawfully and properly accepted to be nominated as a Presidential Candidate.
In reply to paragraph 1(e) of the Amended Petition, the 1 st Respondent avers that the 3 rd Respondent
made no steps to challenge its decision because such challenge would be without merit in law.
The 1st Respondent consequently avers that the Petition is incompetent, misconceived and without
merit.
WHEREFORE the 1st Respondent prays that the Petition be dismissed with costs.
The 1st Respondents Amended Answer to the Amended Petition is supported by the Affidavit of A.JENN, a
Senior Legal Officer in the 1st Respondents Legal Department and the 1st Respondent shall adduce further
evidence by Affidavits as and when is necessary.
Dated at Kampala this 31st day of January, 2005

.
COUNSEL FOR THE 1ST RESPONDENT
Drawn & Filed By:
M/s S.A Advocates
Plot 38 William Street,
P.O. Box 70075,
KAMPALA

ENFORCEMENT OF RIGHTS
Any 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 any act of omission by any person or authority, is inconsistent with or in
contravention of a provision of this Constitution, may petition the constitutional court for
a declaration to that effect, and for redress where appropriate. 1304

Any person who claims that a fundamental or other right or freedom guaranteed under this
Constitution has been infringed or threatened, is entitled to apply to a competent court for redress
which may include compensation.1305
Any person seeking to enforce a right or freedom guaranteed under the Constitution, by claiming
redress for its infringement or threatened infringement, but whose claim does not call for

1304
1305

Article 137 (3)

Article 50 (1)

281

interpretation of the constitution, has to apply to any other competent court other than the
Constitutional Court.1306
Form and Content of the Petition
The petition shall conform to the form specified in the schedule to the rules. 1307
Every petition shall state the right of a petitioner to present the petition, state the grievance of the
petitioner together with the statement of the grounds relied upon to sustain the prayer in the
petition; and shall be divided into paragraphs.1308
The petition shall conclude with a prayer.
The petition shall be accompanied by an affidavit setting out the facts relating to the grievance
complained by the petitioner and the redress prayed for in petition. 1309
The petition shall also be accompanied by a list of any documents on which the petitioner intends
to rely.1310
The petition shall be presented by lodging it at the office of the registrar and shall be lodged
within 30 days after the dates of the breach complained of in the petition, 1311eight copies shall be
filed.1312 At the time of filing court fees shall be paid and a deposit of one hundred thousand
shillings as security for costs.1313
On presentation of the petition, the petitioner shall serve a copy of the petition on the respondent
and if the Attorney General is not a respondent, the Registrar shall serve a copy of the petition on
the Attorney General, service of a petition shall be personal 1314and where such service cannot be
effected within five days, the petitioner shall immediately make an application to the court
supported by an affidavit, stating that all reasonable efforts have been made to effect personal
service on the respondent but without success. 1315
A respondent on whom a petition has been served shall within three days after the service of the
petition on him or her furnish to the Registrar an address to which any document may be sent
relating to the proceedings on the petition.1316
If the respondent wishes to oppose the petition, the respondent shall within seven days after the
service was served on him or her file an answer to the petition. 1317

1306

Charles Kabagambe vs Uganda Electricity Board Constitutional Petition No.2 of 1999

Rule 3 (1) Modifications to the Fundamental Rights and Freedoms (enforcement procedure) rules, 1992
Directors 1996.
1308
Rule 3 (2) Ibid
1309
Rule 3 (6) Ibid
1310
Rule 3 (7) Ibid
1311
Rule 4 Supra
1312
Rule 4 (2) Supra
1313
Rule 4 (3) Supra
1314
Rule 5 op-cit
1315
Rule 5 (4) Op-cit
1316
Rule 6 (1) Op-cit
1317
Rule 6 (3) Op-cit
1307

282

The answer of the respondent shall be accompanied by an affidavit stating the facts upon which
the respondent relies in support of his or her answer 1318and a fee of ten thousand shillings.
The respondent shall upon lodging his or her answer serve a copy of the answer to the petitioner
or his or her advocate.1319
Where the respondent requires further particulars of the petitioner, he or she shall apply for
particulars together with the answer.1320
If a respondent upon whom a petition has been served, intends not to oppose the petition, shall
lodge a written notice of that intention at the office of the Registrar at least three days before the
day appointed for trial, exclusive of the day on which the notice is filed. 1321
The respondent shall upon lodging the notice, serve a copy on the petitioner or advocate. 1322
All evidence at the trial in favour or against the petition shall be by way of affidavit read in open
court.1323
Every application shall be made by motion and shall be heard in open court by a single judge of
the High Court.1324
The constitutional court is not a proper forum for a person seeking redress under the
Constitution.1325
The competent court to enforce the Constitution as opposed to interpreting it which is the sole
responsibility of the constitutional court, would be one of the courts of judicature under the
Constitution namely; the Supreme Court, The Court of Appeal, The High Court and such
subordinate courts established by parliament.
The Constitutional court is not a court of judicature within the meaning of the Constitution. 1326

1318

Rule 6 (5) Op-cit

Rule 6 (6) Op-cit
1320
Rule 6 (7)
1321
Rule 7 (3) Op-cit
1322
Rule 7 (3) Op-cit
1323
Rule 12 (1) Op-cit
1324
Fundamental rights and Freedoms (Enforcement Procedure) Rules 1992 SI 26 of 1992
1325
Uganda Journalist Safety Committee vs. Attorney General Constitutional Petition No.6 of 1997
(unreported)
1326
Dr. James Rwanyarare & Another vs. Attorney General Constitutional petition No.11 of 1997
(unreported)
1319

283

CHAPTER TWENTY ONE

JUDICIAL REVIEW PROCEDURE
Introduction
Public law concerns the law governing relations between the individual and public bodies, and
relations between different public bodies, such as central and local government. The courts have
developed a body of substantive principles of public law to ensure that public bodies do not
exceed or abuse their powers and that they perform their duties.
Judicial review is a nature of the proceedings by means of which the High Court exercises its
jurisdiction of supervising inferior courts,tribunal and other public bodies,commanding them to
do what their duty requires in every case where there is no specific remedy and protecting the
liberty of the subject by speed and summary interposition. 1327
Thus, the courts will review an exercise of power to ensure that the public body;
(a)

has not made an error of law and fact;

(b)

has considered all relevant factors, and not taken into account any irrelevant factors; or
abused its discretion.

(c)

has acted for a purpose expressly or impliedly authorized by statute;

(d)

has not acted in a way that is so unreasonable that no reasonable public body would act in
that way, and

(e)

that the public body has observed procedural requirements and the common law
principles of natural justice or procedural fairness and legitimate expectation has not
improperly delegated its power.

Any person appearing before any administrative official or body has a right to be treated justly
and fairly and shall have a right to apply to a court of law in respect of any administrative
decision taken against him or her.1328
APPLICATION FOR JUDICIAL REVIEW
Procedure
An application for judicial review is conducted in two stages. The applicant must first apply for
permission to apply for judicial review (leave to apply for Judicial Review). If permission is
granted, a full hearing of the substantive application will take place at a later stage. It is at that
later stage that the Court will determine whether the applicant has established a ground of judicial
review, and whether the court should exercise its discretion and grant the applicant one or more of
the remedies available on a Judicial Review application.

1327
1328

Paul Gachanga Ndarua vs Republic & Others H.C Misc.App. No.508 of 2001(Kenya)
Article 42 Constitution

284

The primary method by which the courts exercise their supervisory jurisdiction over public
bodies to ensure that they observe the substantive principles of public law is by way of the
application for judicial review.
(a)

The application for judicial review is a specialized procedure by which the prerogative
remedies of certiorari (to quash a decision), Prohibition (to restrain unlawful action) or
Mandamus (to compel the performance of a duty) and alternatively, or in addition a
declaration, or injunction. Damages may also be awarded if one of those five remedies is
granted and damages would have been available if claimed in an ordinary action.

The High Court may make an order as the case may be of;
(a)
Mandamus
(b)
Prohibition
(c)
Certrorari 1329
An application for any of the above orders shall be made by way of an application for judicial
review.1330Similary an application for a declaration or an injunction may be made by way of an
application for judicial review , and on such an application the High court may grant a declaration
or injunction.1331
Any of the reliefs sought under an application for Judicial review may be made claimed in the
alternative to any other relief so mentioned if it arises out of or relates to,or is connected with the
same matter.1332
An application for Judicial review (prerogative orders) shall not be made unless the leave of the
High court has been obtained. 1333In order to bring proceedings in respect of Judicial review,one
needs to obtain the leave of court which leave is granted if on the material available,the court
considers without going into the depth that there is an arguable case with realistic prospects of
success or that there is an issue which in public interest should be examined by the court. 1334
An application for leave must be made ex-parte to a judge in chambers by filing an application in
the High Court registry.The application shall be accompanied by a statement setting out the name
and description of the applicant, the relief sought and the grounds on which it is sought and by
affidavits verifying the facts relied on. The judge may, in granting leave, impose such terms as to
costs and as to giving security.1335
Test for granting permission (Leave)
The requirement of permission is designed to filter out applications which are groundless or
hopeless at an early stage. The purpose is to prevent the time of the Court being wasted by
busybodies with misguided or trivial complaints of administrative error and to remove the
uncertainty in which public authorities might be left.
1329

S.36 Judicature Act

Rule 2(1) The Civil Procedure(Amendment)(Judicial Review) Rules SI 75 of 2003
1331
Rule 2(2) Ibid
1332
Rule 3 Ibid
1333
Rule 4 The Civil Procedure(Amendment)(Judicial Review) Rules SI 75 of 2003
Administrator General vs Uganda Posts and Telecommunications [1993] IV KALR 106
1334
Samuel Amoke Nyakeriga & Others vs The United Nations High Commission for Refugees & Others
H.C.Misc.Civil App No.638 of 2001
1335
Rule 4 (2) Ibid
1330

285

As such the aim is to prevent a wasteful use of judicial time and to protect public bodies from the
harassment (intentional or otherwise) that might arise from the need to delay implementing
decisions, where the legality of such decisions has been challenged. The requirement for
permission also enables an individual to obtain a quick and relatively cheap judicial consideration
of whether his case has any prospect of success.
The court shall not grant leave unless it considers that the applicant has sufficient interest in the
matter to which the application relates. 1336This rule should be liberally construed and regard must
be made to Article 50(2) which provides that any person or organization may bring an action
against violation of another persons or groups human rights. 1337
Challenging the grant of permission (Leave)
Application for permission will be made without notice and will normally be dealt with or
without notice to the other party, either on the basis of the papers or following an oral hearing.
There will often not be an inter partes hearing at which the putative respondent can argue against
the grant of permission. A respondent may, however, wish to challenge the grant of permission
rather than wait to contest the applicants case at the full hearing by applying to set aside the grant
of permission (Leave). The Courts have emphasized, however, that the jurisdiction is to be
exercised sparingly and that they will only set aside permission in a very plain case 1338.
Time for Filing an Application for Judicial review.
An application for judicial review shall be made promptly and in any event within three months
from the date when the grounds of the application first arose unless the court considers that there
is good reason for extending the period within which the application shall be made. 1339
This rule shall apply, without prejudice to any statutory provision which has the effect of limiting
the time within which an application for judicial review may be made. 1340
Grant of Leave to operate as a Stay of Proceedings.
Where leave to apply for Judicial review is granted,then if the relief sought is an order of
prohibition or certiorari and the court so directs,the grant shall operate as a stay of the
proceedings to which tha application relates until the determination of the application or until the
Court otherwise orders.1341
If any other relief is sought,the court may at anytime grant in the proceedings such interim relief
as could be granted in an action begun by writ.1342

1336

Rule 4(7) supra

Constitution of Uganda
1338
R vs Secretary of State for the Home Department, exp Chinoy (1992) 5 Admin. L. Rep. 457 at 462
1339
Rule 5 supra
1340
Rule 5(3) supra
1341
Rule 4(10)(a) supra
1342
Rule 4(10)(b) supra
1337

286

Mode of Applying for Judicial Review.

When leave has been granted to apply for an order of mandamus, prohibition or certrorari, the
second stage of Judicial Review process is the actual application for judicial review itself. The
application shall be made by originating summons or originating motion to a judge of the High
Court1343and there shall, unless the judge granting leave has otherwise directed be at least ten clear
days between the service of the notice of motion and the day named therein for the hearing. 1344
A motion shall be entered for hearing within fourteen days after the grant of the leave. 1345
The notice shall be served on all persons directly affected 1346and copies of the statement
accompanying the application for leave shall be served with the notice of motion. 1347
On hearing of the application, if the court is of the opinion that any person who ought to have
been served,has not been served,the court may adjourn the hearing on such terms and order that
the notice of motion or summons may be served on that person. 1348
Any person who desires to be heard in opposition to the motion or summons and appears to the
court to be a proper person to be heard,shall be heard,notwithstanding that he/she has not been
served with notice of motion or the summons. 1349
On an application for judicial review the court may award damages to the applicant ,if he/she has
included in the statement in support of his/her application for leave a claim for damages arising
from any matterto which the application relates and the court is satisfied that,if the claim had
been made in action begun by the applicant at the time of making his or her application,he or she
could have been awarded damages. 1350
The applicant and his legal advisers have a duty once the respondents evidence is provided to
reconsider whether there is sufficient merit to continue the application. The Court may penalise
the applicant in costs if the application continues once it becomes clear that the application is
unfounded.
The prerogative remedies can only be claimed by way of judicial review. They are broadly
speaking, only available in public law matters. The creation of a specialized procedure was
designed to deal with public law issues in which all the necessary remedies are available.
It would be an abuse of the process of the court to seek these remedies by way of ordinary
process of making a claim. 1351

1343

Rule 6(2) Op.cit

Rule 6 (5) o.p.cit
1345
Rule 6(6) op.cit
1346
Rule 6 (4) op.cit
1347
Rule 7 op.cit
1348
Rule 6(8) op.cit
1349
Rule 10(1)op.cit
1350
Rule 8(1) op.cit
1351
OReilly vs Mackman [1982] AC 237
1344

287

The procedure cannot be flouted, since every applicant must first apply for leave to apply for the
prerogative order, at this stage court will weigh the claim and the effectiveness of the order that is
sought and see if the remedy will be of any help to the aggrieved person unlike in an ordinary suit
which will take a long period and the remedy may be irrelevant/useless by the time the court
grants it after a full trial that may take a long period. This is the only fastest means of checking
excesses or abuse of office or violation of citizens rights.

288

Figure 10

Application for Judicial Review

THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA HOLDEN AT MASAKA
MISCELLANEOUS APPLICATION NO. OF 2004

IN THE MATTER OF ARTICLE 42 OF CONSTITUTION AND S. 36 OF THE JUDICATURE ACT

IN THE MATTER OF RULE 2 OF THE CIVIL PROCEDURE(AMENDMENT)(JUDICIAL
REVIEW)RULES SI 75 OF 2003
AND
IN THE MATTER OF AN APPLICATION BY AB (HEREINAFTER CALLED THE APPLICANT)
FOR LEAVE TO APPLY FOR:
1.
2.

AN ORDER OF CERTIORARI
AN ORDER OF MANDAMUS

AGAINST THE TOWN CLERK, CHIEF ADMINISTRATIVE OFFICER, RESIDENT DISTRICT

COMMISSIONER MASAKA DISTRICT AND MASAKA MUNICIPAL COUNCIL
(HEREINAFTER REFERRED TO AS THE 1ST, 2ND, 3RD AND 4TH RESPONDENTS
RESPECTIVELY).
STATEMENT
(Under S.36 of the Judicature Act, Rule 4(2) of the Civil Procedure (Amendment)(Judicial Review)
Rules
Accompanying an application for leave to apply for orders of Certiorari and Mandamus.
1.

The applicant AB is the Municipal Engineer, Masaka Municipal Council, who resides in Masaka
and his address for purposes of these proceedings shall be c/o SA Advocates.
The said applicant was duly appointed the Municipal Engineer and duly accepted the appointment.
Copies of Appointment and Acceptance are annexed hereto respectively marked "A" and "B".
On 23rd Septemebr 2002, the Town Clerk did by a letter dated 23 rd September 2002, purported to
interdict the applicant AB from the performance of his duties as Municipal Engineer until
finalization of investigations. A copy of the letter of interdiction is hereto annexed marked as "C".
The Town Clerk was directed to interdict the applicant by the Chief Administration officer 2 nd
Respondent who had been earlier ordered to interdict the applicant by the 3 rd respondent the two
letters are attached hereto marked "D".
That the said decision of Town Clerk to interdict the applicant from office of the Municipal
Engineer is illegal/ultra-vires, null and void contrary to rules of natural justice in view of the
provisions of the Constitution, Public Service Commission Regulations, Guidelines to the District
and Urban Councils for Management of Separate Personal Systems, Public Service Act and Local
Government Act.

2.

THE RELIEFS SOUGHT by the applicant against the respondents jointly and or severally is for
an order:i)

of Certiorari to quash and declare as null and void or otherwise unconstitutional, ultravires, illegal and a nulity the decision of

289

a)

The Town Clerk communicated to the applicant by the letter dated 23 rd September
2002, is illegal, invalid, null and void and ultra-vires in so far as:
- The Town Clerk has no power to take disciplinary action against the applicant since
such power is vested in the District Service Commission.

- The Town Clerk cannot be directed by the Chief Administrative Officer and or the
Resident District Commissioner to interdict the applicant.
b) The Cjief Administrative Officer directing the Town Clerk to interdict applicant is
unconstitutional, ultra-vires, illegal and null and void.
c)

ii)
3.

The Resident District Commissioner directing the Town Clerk to interdict the
applicant and also the decision to carry out the investigation of the work done by the
municipal engineer is unconstitutional, illegal utlra-vires and null and void.

Of mandamus directing Masaka Municipal Council to re-instate the applicant to his

position of Municipal Engineer.

THE GROUNDS upon which the said reliefs sought based are as follows:
1.

The applicant is employed by the 4th Respondent (Masaka Municipal Council) as the
Municipal Engineer.

2.

The 3rd Respondent, contrary to his duties as set out in the Constitution and Local
Government Act, 1996 instructed the 2nd Respondent and the 1st Respondent to interdict the
Applicant.

3.

The 2nd Respondent under the instructions of the 3rd Respondent and contrary to his duties as
set out in the Local Government Act, 1996 directed the 1 st Respondent to interdict the
applicant.

4.

The 1st Respondent acting on orders of the 2 nd and 3rd Respondent interdicted the applicant, as
a disciplinary measure..

5.

The interdiction of the applicant by the 1 st, 2nd and 3rd Respondent jointly and/or severally as a
disciplinary act was illegal, unlawful and wrongful as it could only be done by the District
Service Commission upon the request of the 4th Respondent.

6.

The applicant is required to defend himself before the District Service Commission which did
not interdict him or direct the disciplinary act against the applicant.

7.

The interdiction was done without any investigation.

8.

The applicant was treated unfairly and unconstitutionally when he was interdicted without a
hearing as required.

The decision contained in the letter of the 1 st Respondent is vitiated by being unconstituional, illegal, ultrarvires, null and void and in breach of rules of natural justice in so far as:
a)
b)
c)

The 1st respondent was directed by the 2nd respondent and also by the 3rd respondent who sent a
letter to the 2nd respondent.
The 1st respondent did not set out the particulars of the charge or disclose the case to be met by the
applicant.
The Town Clerk did not call upon the Minicipal Engineer to defend himself before interdiction.

290

d)
e)

The Town Clerk acted in total breach of rules of natural justice and unconstitutionally when he
treated the applicant unfairly.
The applicant has not been called upon to defend himself before the District Service Commission
or to submit his written defence or make oral representations to the District Service Commission.

f)

That the applicant has a prima facie case on both facts and the law and is aggrieved by the
interdiction by the 1st respondent.

g)

That there is no satisfactory and speedier alternative remedy open to the applicant for the
immediate, full and effectual redress of the injustice occasioned to the applicant.

DATED at Kampala this .. day of 2002.

.
AB
APPLICANT
..
SA ADVOCATES
COUNSEL FOR THE APPLICANT
DRAWN AND FILED BY
SA ADVOCATES
P.O. BOX 70075
KAMPALA

291

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA HOLDEN AT MASAKA
MISCELLANEOUS APPLICATION NO. OF 2004
IN THE MATTER OF ARTICLE 42 OF CONSTITUTION AND S. 36 OF THE JUDICATURE ACT
IN THE MATTER OF RULE 2 OF THE CIVIL PROCEDURE(AMENDMENT)(JUDICIAL
REVIEW)RULES SI 75 OF 2003
AND
IN THE MATTER OF AN APPLICATION BY AB (HEREINAFTER CALLED THE APPLICANT)
FOR LEAVE TO APPLY FOR:
3.
4.

AN ORDER OF CERTIORARI
AN ORDER OF MANDAMUS

AGAINST THE TOWN CLERK, CHIEF ADMINISTRATIVE OFFICER, RESIDENT DISTRICT

COMMISSIONER MASAKA DISTRICT AND MASAKA MUNICIPAL COUNCIL
(HEREINAFTER REFERRED TO AS THE 1ST, 2ND, 3RD AND 4TH RESPONDENTS
RESPECTIVELY).
AFFIDAVIT
(Under S.36 of the Judicature Act, Rule 4(2) of the Civil Procedure (Amendment)(Judicial Review)
Rules
I, AB of c/o SA Advocates &Consultants, Kampala do solemnly affirm and state as follows:
1.

That I am a male adult of sound mind.

2.

That I was appointed Minicipal Engineer in February 2001. A copy of the appointment letter and
acceptance attached hereto marked "A".

3.

That I have been executing my duties diligently and professionally to the satisfaction of the
Municipal authority namely the 4th respondent.

4.

That on 10th September 2002 the 3rd respondent did direct the 2nd respondent to interdict me as per
copy of letter attached hereto marked "LET RDC".

5.

That that letter was directed to the 2nd respondent who in trun directed the 1st respondent to
interdict me. A copy is attached hereto marked "B".

6.

That on 23rd September 2002 I did receive a letter of interdiction from the 1 st respondent. A copy
is attached hereto marked "C".

7.

That all the work that I have been doing in the district has been subject to approval by the Town
Clerk and duly satsfied as to its standard by the Municipal Council and relevant project donors
from Ministry of Education and other Agencies.

8.

That the work done at the district is subject to the supervision of qualified personnel who approve
completion of a particular project before any payment is done.

9.

That what is stated herein is true to the best of my knowledge and belief.

AFFIRMED at Kampala this

292

day of 2002
by the said AB

..
DEPONENT
BEFORE ME:
..
A COMMISSIONER FOR OATHS

DRAWN AND FILED BY

SA ADVOCATES
P.O. BOX 70075
KAMPALA

293

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA HOLDEN AT MASAKA
MISCELLANEOUS APPLICATION NO. OF 2004
IN THE MATTER OF ARTICLE 42 OF CONSTITUTION AND S. 36 OF THE JUDICATURE ACT
IN THE MATTER OF RULE 2 OF THE CIVIL PROCEDURE(AMENDMENT)(JUDICIAL
REVIEW)RULES SI 75 OF 2003
AND
IN THE MATTER OF AN APPLICATION BY AB (HEREINAFTER CALLED THE APPLICANT)
FOR LEAVE TO APPLY FOR:
5.
6.

AN ORDER OF CERTIORARI
AN ORDER OF MANDAMUS

AGAINST THE TOWN CLERK, CHIEF ADMINISTRATIVE OFFICER, RESIDENT DISTRICT

COMMISSIONER MASAKA DISTRICT AND MASAKA MUNICIPAL COUNCIL
(HEREINAFTER REFERRED TO AS THE 1ST, 2ND, 3RD AND 4TH RESPONDENTS
RESPECTIVELY).
CHAMBER SUMMONS (EX-PARTE)
(Under S.36 of the Judicature Act, Rule 4(2) of the Civil Procedure (Amendment)(Judicial Review)
Rules
LET THE APPLICANT attend ex-parte the Judge in Chambers at the High Court of Uganda at Masaka on
the .. day of .. 2002 at . O'clock in the fore/afternoon or soon thereafter as
counsel for the Applicant shall be heard for oders against the respondents jointly and/or severally that:
1.

Leave to apply for an order of certiorari to quash and declare as null and void or otherwise
unconstitutional, ultra-vires, illegal and a nullity the decision of
a)

The Town Clerk of Masaka Municipal Council contained in a letter Ref. CR/U/10372
dated 23rd September 2002 to interdict the applicant.

b)

The Chief Administrative Officer of Masaka District Local Government Council

contained in a letter Ref. No. CR.157/2 dated 16 th September 2002 instructing the Town
Clerk to interdict the applicant.

c)

The Resident District Commissioner of Masaka to make recommendations for the

interdiction of the applicant as pointed out in his report Ref: RDC/MLG/2 dated 10 th
September 2002.

2.

Leave to apply for an order of Mandamus directed to the 4 th respondent (Masaka Municipal
Council) compelling it to reinstate the applicant to his position as Municipal Engineer as a
consequence of orders of certiorari.

3.

Costs of the application.

THE GROUNDS OF THIS APPLICATION are in general terms:

1.

The applicant is employed by the 4 th respondent (Masaka Municipal Council) as the Municipal
Engineer.

294

2.

The 3rd respondent, Resident District Commissioner contrary to his duties as set out in the
Constitution and Local Government Act, 1996 instructed the Chief Administrative Officer and
Town Clerk to interdict the Applicant.

3.

The 2nd respondent under the instructions of the 3 rd respondent and contrary to his duties as set out
in the Local Government Act, 1996 directed the 1 st respondent (Town Clerk) to interdict the
Applicant.

4.

The 1st respondent acting on orders of the 2nd and 3rd respondent interdicted the applicant, as a
disciplinary measure.

5.

The interdiction of the applicant by the 1st, 2nd and 3rd respondent jointly and/or severally as a
disciplinary act was illegal, unlawful and wrongful as it could only be done by the District Service
Commission upon the request of the 4th respondent.

6.

The applicant is required to defend himself before the District Service Commission which did not
interdict him or direct the disciplinary act against the applicant.

7.

The interdiction was done without any investigation.

8.

The applicant was treated unfairly and unconstitutionally when he was interdicted without a
hearing as required.

TAKE FURTHER NOTICE that this application is accompanied and supported by a statement setting out
the names, deception of the applicant, the reliefs sought AND by the affidavit of AB verifying the facts
relied on and setting out in details the grounds of this application.
THIS SUMMONS was taken out by the S.A Advocates P.O. Box 7699, Kampala.
GIVEN under my HAND and SEAL of this Court this . day of .. 2002 at Masaka.
..
DEPUTY REGISTRAR
DRAWN AND FILED BY
SA ADVOCATES
P.O. BOX 70075
KAMPALA

295

APPEALS
No appeal lies to Court of Appeal once a decision is taken in the High Court. The jurisdiction of
the Court of Appeal is creature of statute.
An appeal shall lie to the Court of Appeal from decisions of the High Court prescribed by the
Constitution,this Act or any other law.1352
The Constitution or Judicature Statute are silent about appeals from prerogative orders except
habeas corpus and no other law makes provision for the same. So no appeal lies from the
prerogative remedies.1353

1352

S.10 Judicature Act

Inspector General of Government vs Gladys Aserua Orochi CAC App No. 90 of 2000 A.G vs Shah
(No4) [1971] EA 50
1353

296

CHAPTER TWENTY TWO

HABEAS CORPUS PROCEDURE
Introduction
The prerogative writ of habeas corpus ad subjiciendum is a means of securing the release of a
person unlawfully detained. The writ requires the person responsible for the detention to produce
the prisoner in court, and make a return stating the grounds for the detention. The court will then
inquire into the legality of the detention and, if it is unlawful, order the release of the prisoner or
person detained.
Alternatively, a court may during the hearing of the application for the writ determine whether the
detention was unlawful, and if so order the release of the prisoner without formally issuing the
writ of habeas corpus. This represents the modern practice.
The purpose of the writ is to facilitate the release of those detained in unlawful custody. The writ
will not therefore be granted after the person has been released nor will it be directed against
someone who no longer has custody of the person 1354,although the courts may take the
opportunity to give judgement to provide guidance on points of law.1355
The right to an order of habeas corpus shall be inviolable and shall not be suspended. 1356 Habeas
corpus is a constitutional right that secures the right to be tried according to law or to be
released.The writ is used to question the legality of restraint and thereby facilitate the release of
persons in unlawful custody.1357
Whereas the application for the writ may be made from the moment of arrest,where there have
been valid proceedings subsequent to the arrest,which are offered in justification of detention,a
prisoner will get redress by habeas corpus.Court has jurisdiction to deal with a person before it no
matter how improper the procedure that brought that person before it. 1358
The High Court may, at anytime where the person is deprived of his or her personal liberty
otherwise than in execution of a lawful sentence (or order) imposed on that person by a
competent court upon complaint being made to the High Court by or on behalf of that person and
if it appears by affidavit made in support of the complaint, award under the seal of the court, a
writ of habeas corpus ad subjiciendum directed to the person in whose custody the person
deprived of the liberty is; and when the return is made the judge, before whom the writ is
returnable, shall inquire into the truth of the facts set out in the affidavit and may make any order
as the justice requires.1359
The writ of habeas corpus is frequently referred to as a writ of right, once it is established that the
detention is unlawful, the applicant is entitled to the writ and the court has no discretion to refuse
1354

Barnado (Thomas John) vs Ford (Mary) [1892] AC 326

R v Governor of Brixton Prison, exp Walsh [1985] AC 154 R vs Governor of Canterbury Prison, exp
Craig [1990] 1 WLR 126
1356
Article 23 (9) Constitution
1357
In Re:A Reference from High Court of Uganda and in Re Sheik Abdul K Sentamu & Anor.
Constitutional Petition No.7 of 1998
1358
Ibid
1359
S.34 Judicature Act
1355

297

it.1360 There is no doubt that where the facts necessary to justify detention do not exist, the courts
will invariably grant a remedy. The detention may be unlawful because it is based on an invalid
exercise of statutory power to detain.
APPLICATION FOR THE WRIT
An application for writ of habeas corpus ad subjiciendum may be, and often is made exparte
without notice being served on the other party and must be made to a judge in court. 1361
An application shall be made by motion and presented ex-parte by an advocate acting on behalf
of the applicant or by some other person lawfully entitled to represent the applicant( the person
restrained) and must be supported by an affidavit in form I of the first schedule by the person
restrained,or by some other person on his/her behalf stating that the person restrained is unable to
make the affidavit himself and explaining reasons why this is so, show that it is made at the
instance of the applicant,set out the nature of the restraint and mention the place,if known where
the applicant is restrained.1362
By law, applications for habeas corpus take precedence over all other court proceeding on the
day on which the application is to be heard.1363
Issue of the writ
The court hearing an application for a writ of habeas corpus ad sbjiciendum may, in its
discretion,order that the person restrained be released,and that order shall be a sufficient warrant
to the officer in charge of a prison,police station, public officer or other person for the release of
the person under restraint.1364
The writ of habeas corpus formally directs the person having custody of the prisoner to produce
the body of the prisoner and make a return, stating the day and cause of the detention.
The court or judge issuing the writ must give directions as to the court or judge before whom, and
the date at which the return to the writ is to be made. 1365 The writ must be in the prescribed form
in the rules.
The writ must be served personally1366or if it is directed to a public official, by leaving it with the
servant or agent of that person to whom the writ is directed at the place where that person
normally works or with his/her agent or servant at the place, if known, where the person
restrained is confined.1367
Return of the writ

1360

Greene vs Secretary of State for Home Affairs [1942] AC 284 at 302, Phillip vs D.P.P. [1992] 1
ALLER 664 at 676
1361
Rule 4 The Judicature (Habeas Corpus) Rules 13-6
1362
Rule 3 Ibid
1363
Rule 11
1364
Rule 6 supra
1365
Rule 7
1366
Rule 8 (1)
1367
Rule 8 (2)

298

The return to the writ must be endorsed with all the causes of the detention. 1368 The return may be
amended or another return substituted with the leave of the court or judge before whom the writ is
returnable.1369
At the hearing, the return will be read and a motion for discharging or remanding the person
detained or for quashing or remanding the prisoner will be heard first, then counsel for the
prisoner to reply.1370 Failure to produce the prisoner, make a return or make a sufficient return is
punishable by committal for contempt of court. The court or judge will order discharge of the
prisoner if the reasons given for the detention in the return are insufficient in law to justify the
detention. In practice, this stage is never reached as the application is dismissed or an order for
discharge is made at the hearing of the application.
Appeals
Any person aggrieved by an order made may appeal from the decision to the court of appeal
within 30 days after making of the order appealed from whether the order has been made in the
exercise of the civil or criminal jurisdiction of the High Court. 1371
An appeal from any interlocutory order or judgment shall lie to the Court of Appeal and shall be
lodged within seven days of the decision appealed against. 1372

1368

Rule 9 (1)
Rule 9 (2)
1370
Rule 10
1371
S.35 Judicature Act
1372
Rule 16
1369

299

Figure 11

Copy of notice of motion

THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLANEOUS CAUSE NO. .. OF 2006

IN THE MATTER OF SECTION 34 OF THE JUDICATURE ACT AND ARTICLE 23 (9) OF THE
CONSTITUTION OF THE REPUBLIC OF UGANDA AND JUDICATURE (HABEAS CORPUS)
RULES SI 13-6.
AND
IN THE MATTER OF ABC
AND
IN THE MATTER OF AN APPLICATION FOR WRIT OF HABEAS CORPUS AD
SUBJIDICIENDUM
NOTICE OF MOTION (EX-PARTE)
TAKE NOTICE that on the day of .. 2006 at .. Oclock in the fore/afternoon or
soon thereafter Counsel for the applicant can be heard to move this Honourable Court for orders:(a)

That this Honourable Court directs that a writ of Habeas Corpus and subjiciendum in respect of
ABC issues against . To have the body of ABC produced immediately before the
High Court at Kampala to undergo and receive all the singular such matters and things as this
court shall herein consider of concerning him in his behalf.

(b)

That the cost of this application be provided for.

The grounds of this application in brief are:

Denied his personal liberty in a manner contrary to Article .. of the Constitution.
As a result the Applicants family members including the deponent herein have been deprived of his
right to personal enjoyment of the family and are suffering emotionally, physically and
psychologically.
That the justice of the matter and interest of the Constitution requires that the above named person be
immediately produced before this Honourable Court.
FURTHER TAKE NOTICE that this application is supported by the affidavit of ..
Dated at Kampala this . day of . 2006.
..
COUNSEL FOR THE APPLICANT
GIVEN under my HAND and the SEAL of this Honourable Court this . day of .. 2006

REGISTRAR
DRAWN AND FILED BY:
SA Advocates
Plot 38 William Street
P.O. Box 70075
KAMPALA

300

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLANEOUS CAUSE NO. .. OF 2006
IN THE MATTER OF SECTION 34 OF THE JUDICATURE ACT AND ARTICLE 23 (9) OF THE
CONSTITUTION OF THE REPUBLIC OF UGANDA AND JUDICATURE (HABEAS CORPUS)
RULES SI 13-6.
AND
IN THE MATTER OF ABC
AND
IN THE MATTER OF AN APPLICATION FOR WRIT OF HABEAS CORPUS AD
SUBJIDICIENDUM
AFFIDAVIT
I, .. of c/o SA Advocates Plot 38 William Street, P.O. Box 70075, Kampala do solemnly swear
and state as follows:
1.
2.
3
4.
5.

That I swear this affidavit in support of the application because the applicant is in confinement at
. Where he is not allowed to write or sign any document and there is no commissioner for
oaths and all attempts to have the applicant swear an affidavit have been futile.

SWORN at Kampala
this day of .. 2006

DRAWN AND FILED BY:

SA Advocates
Plot 38 William Street
P.O. Box 70075
KAMPALA

301

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLANEOUS CAUSE NO. .. OF 2006
IN THE MATTER OF SECTION 34 OF THE JUDICATURE ACT AND ARTICLE 23 (9) OF THE
CONSTITUTION OF THE REPUBLIC OF UGANDA AND JUDICATURE (HABEAS CORPUS)
RULES SI 13-6.
AND
IN THE MATTER OF ABC
AND
IN THE MATTER OF AN APPLICATION FOR WRIT OF HABEAS CORPUS AD
SUBJIDICIENDUM
NOTICE TO BE SERVED WITH WRIT OF HABEAS CORPUS AD SUBJICIENDUM
WHEREAS this Court has granted a writ of Habeas Corpus directed to the . Commanding
them to have the body of . before the said Court at Kampala, in the Chambers of the
. Immediately to undergo and receive all and singular such matters and things as the Court
shall then and there consider of concerning him in his behalf.
NOW TAKE NOTICE that you are hereby required to have the body of .. before the said Judge on
the day of .. 2006 at Oclock in the forenoon. And to make a return to the said
writ. Or in default thereof, the said court will then contempt in not obeying the said writ.
Dated this day of . 2006.
...
COUNSEL FOR THE APPLICANT
To:

1.
2.

Army Commander
Commanding Officer

DRAWN AND FILED BY:

SA Advocates
Plot 38 William Street
P.O. Box 70075
KAMPALA

302

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLANEOUS CAUSE NO. .. OF 2006
IN THE MATTER OF SECTION 34 OF THE JUDICATURE ACT AND ARTICLE 23 (9) OF THE
CONSTITUTION OF THE REPUBLIC OF UGANDA AND JUDICATURE (HABEAS CORPUS)
RULES SI 13-6.
AND
IN THE MATTER OF ABC
AND
IN THE MATTER OF AN APPLICATION FOR WRIT OF HABEAS CORPUS AD
SUBJIDICIENDUM
GREETING
This is to command you that you have in the High Court of Uganda before a Judge in Chambers, at
Kampala immediately after the receipt of this our writ, the body of being committed and detained
in prison in your custody, together with the cause of his or her being taken and detained by whatsoever
name he or she may be called , then and there to answer to a charge of..to be then and there made
against him or her and so from day to day until he or she shall have answered the charge and be dealt with
according to law.And have you then and there this writ.
GIVEN under my Hand and the Public Seal, this day of 2006.
______________
JUDGE
This writ was issued by:
SA ADVOCATES
COUNSEL FOR THE APPLICANT.

303

CHAPTER TWENTY THREE

ELECTION PETITIONS PROCEDURE
Election Petition Rules
The trial by election petitions is governed by special Acts and rules which must be construed
strictly.The practice and procedure in respect of a petition shall be regulated, as nearly as may be,
in accordance with the Civil Procedure Act and rules made under that Act relating to the trial of a
suit in the High Court, with such modifications as the court may consider necessary in the
interests of justice and expedition of the proceedings. 1373
These rules take precedence over civil procedure rules.Any special rules of procedure not
contained in these rules which may have been or may be made by the High Court shall, where
they conflict with these rules, prevail and be deemed to govern the procedure in the matter
mentioned in those special rules.1374
General principles of Elections
The principles were laid down by Chief Justice Odoki in his judgment in the Presidential Election
Petition No 1 of 2001, Rtd Col Dr Kiiza Besigye vs Yoweri Kaguta Museveni and Electoral
Commission.
In my opinion the principles of the Act can be summarized as follows:

The election must be free and fair

The election must be by universal adult suffrage, which underpins the right to register
and vote

The elections must be conducted in accordance with the law and procedure laid down
by Parliament

There must be transparency in the conduct of elections

The result of the election must be based on the majority of the votes cast.

A definition of a free and fair election can be derived from these principles contained therein as
thus:
To ensure that elections are free and fair there should be sufficient time given for all
stages of the elections, nominations campaigns, voting and counting of votes.
Candidates should not be deprived of their right to stand for elections, and citizens to
vote for candidates of their choice through unfair manipulation of the process by
electoral officials. There must be a leveling of the ground so that the incumbents or
Government Ministers and officials do not have an unfair advantage. The entire
election process should have an atmosphere free of intimidation, bribery, violence,
coercion or anything intended to subvert the will of the people. The election
1373

Rule 15 The Presidential Elections (Election Petitions)Rules 2001and Rule 17 The Parliamentary
Election(ElectionPetitions) Rules SI 141-2
1374
O.49 r 4 Civil Procedure Rules

304

procedures should guarantee the secrecy of the ballot, the accuracy of counting and
the announcement of the results, in a timely manner. Election law and guidelines for
those participating in elections should be made and published in good time.
Fairness and transparency must be adhered to in all stages of electoral process. Those
who commit electoral offences or otherwise subvert the electoral process should be
subjected to severe sanctions. The Electoral Commission must consider and determine
election disputes speedily and fairly.
CHALLENGING A PRESIDENTIAL ELECTION:
Any aggrieved candidate may petition the Supreme Court for an order that a candidate declared
by the Electoral Commission elected as President was not validly elected. 1375
Mode of Presentation of Election Petition
A presidential election petition must be presented to the Supreme court and shall be lodged in the
Supreme Court registry within ten days after the declaration of the election results. 1376
Every petition shall state; the right of the petitioner to present the petition; the holding and result
of the election together with a statement of the grounds relied upon to sustain the prayer of the
petition; the address of the place where personal service can be effected on the respondent. 1377
The petition shall be divided into paragraphs numbered consecutively, each of which shall, as
may be confined a distinct portion of the subject; and no costs shall be allowed for the drawing or
copying any petition not substantially in compliance with this subrule unless the court otherwise
orders.1378A petitioner cannot be allowed to belatedly introduce new facts to be relied upon to
invalidate an election after the time allowed by law for presenting a petition has elapsed. 1379
Presentation of a petition shall be made by the petitioner leaving it in person or, by or through his
or her advocate, if any named at the foot of the petition, at the office of the registrar of Supreme
court within ten days after the declaration of the results of the election. 1380
Service of Petition
A presidential petition must be served immediately on the respondent or each respondent 1381 and
such service shall be personal.1382
Where the respondent cannot be found within two days for effecting personal service on him or
her, the petitioner or his or her advocate shall immediately make an application to the court

1375

Article 104 (1) Constitution S.59 Presidential Elections Act16 of 2005

Article 104 (2)Constitution S.59 (2) Presidential Elections
1377
Rule 4 The Presidential Elections (Election Petitions)Rules 2001
1378
Rule 4 (4) Ibid
1379
Rtd Col.Kizza Besigye vs Yoweri Museveni Kaguta & Electoral Commission Supreme Court
Presidential Election Petition No. 1 of 2006
1380
Rule 5 supra
1381
Rule 5(5) Ibid
1382
Rule 6(2) ibid
1376

305

supported by an affidavit, stating that all reasonable efforts have been made to effect personal
service on the respondent but without success. 1383
Answer of Respondent to Petition
If the respondent wishes to oppose the petition, the respondent shall, within three days after the
petition was served on him or her, file an answer to the petition. 1384The respondent may require
further and better paticulars of the petition at the time of filing the answer to petition. 1385
The respondent shall,immediately upon filing the answer with the registrar,serve a copy on the
petitioner or his or her advocate.1386
Evidence at trial
All the evidence at the trial, in favour of or against the petition shall be by way of affidavit read in
open court.1387However,with leave of the court, any person swearing an affidavit which is before
the court, may be cross examined by the opposite party and re-examined by the party on behalf of
whom the affidavit is sworn.1388
The court has expressed reservations about this mode of adducing evidence in petitions.Justice
Tsekooko had this to say; 1389
I would like to repeat what I said in my reasons in Presidential Election Petition No1 of
2001 on trial by affidavits. There are inherent problems in conducting the hearing of and
deciding a petition of this importance on the basis of only volumes of affidavits and
annextures thereto. Any experienced trial judge will agree that trying a case, or a
petition, by way of oral testimony has obvious advantages. The impression, which a trial
judge gets from, for instance, observation of demeanours of witnesses, is totally missing
from a trial based on affidavits only. Affidavit evidence is unlikely to elicit the bad out of
a witness. Falsehoods are unlikely to be exposed easily. Oral testimony is particularly
helpful because a court can intervene and seek clarification from a witness about what
he/ she states.
Burden and Standard of Proof
The election of a candidate as president shall only be annulled..if proved to the satisfaction of
the court.1390
One of the principles established in the Presidential Election Petition No.1 of 2001 was that the
burden of proof lies on the petitioner to satisfy the court on balance of probabilities that the noncompliance with the law and principles affected the result of the election in a substantial manner.
The standard of proof is higher than in an ordinary civil case and is similar to standard of proof

1383

Rule 6(3)
Rule 8(1)
1385
Rule 8(5)
1386
Rule 8(4)
1387
Rule 14(1)
1388
Rule 14(2)
1389
Rtd Col.Kizza Besigye vs Yoweri Museveni Kaguta & Electoral Commission Supreme Court
Presidential Election Petition No.1 of 2006
1390
S. 59(6) Presidential Elections Act
1384

306

required to establish fraud, but it is not as high as in criminal cases where proof beyond
reasonable doubt is required.1391
Odoki, C.J in his Judgment cited with approval the following observation of Lord Denning in the
English case of Blyth -Vs- Blyth [1966] AC 643:
"My Lords, the word "satisfied" is a clear and simple one and one that is well
understood. I would hope that interpretation or explanation of the word would be
unnecessary. It needs no addition. From it there should be no subtraction. The courts
must not strengthen it; nor must they weaken it. Nor would I think it desirable that any
kind of gloss should be put upon it. When parliament has ordained that a court must be
satisfied only parliament can prescribe a lesser requirement. No one whether he be a
judge or juror would in fact be "satisfied" if he was in a state of reasonable doubt.."
Having quoted the above, Odoki, C.J. goes on to state:
"I entirely agree with those observations by Lord Denning. The standard of proof
required in this petition is proof to the satisfaction of the court. It is true court may not
be satisfied if it entertains a reasonable doubt but the decision will depend on the gravity
of the matter to be proved.since the legislature chose to use the words "proved to the
satisfaction of the court", it is my view that that is the standard of proof required in an
election petition of this kind. It is a standard of proof that is very high because the
subject matter of the petition is of critical importance to the welfare of the people of
Uganda and their democratic governance."1392

CHALLENGING A PARLIAMENTARY OR LOCAL GOVERNMENT ELECTION

Form and Content of Petition
A petition questioning an election under Parliamentary Elections Act and Local Government Act
must be in the prescribed form. 1393
The petition must state: in which capacity the petitioner presents the petition, the holding and
result of election together with a statement of the grounds relied upon to sustain the prayer of the
petition;the address of the place where personal service can be effected on the respondent. 1394
The petition shall be divided into paragraphs numbered consecutively, each of which shall, as
may be confined a distinct portion of the subject; and no costs shall be allowed for the drawing or
copying any petition not substantially in compliance with this subrule unless the court otherwise
directs.1395
The petition must set out with sufficient particularity the facts relied on but not the evidence by
which they are to be proved as required for all pleadings.
1391

Supra n 1375
Ibid (as quoted by Justice Katurebe)
1393
Rule 4(1) The Parliamentary Elections (Election Petitions)Rules
1394
Rule 4(2) Ibid
1395
Rule 4(5) Ibid
1392

307

The petition must conclude with a prayer setting out particulars of the relief claimed 1396 and must
be signed by the petitioner or petitioners advocate. 1397
The petition shall be accompanied by an affidavit setting out the facts on which the petition is
based together with a list of any documents on which the petitioner intends to rely. 1398

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA HOLDEN AT NAKAWA
ELECTION PETITION NO. 27 OF 2006
IN THE MATTER OF THE LOCAL GOVERNMENTS ACT CAP. 243
AND
IN THE MATTER OF THE LOCAL GOVERNMENT ELECTIONS FOR LC III CHAIRPERSON,
NANSANA TOWNCOUNCIL HELD ON 10TH MARCH 2006
KAYONGO ABASI MALE ..PETITIONER
VERSUS
1.
2.

THE ELECTORAL COMMISSION

WANDYAKA MOSES NSUBUGA ..RESPONDENTS
PETITION

The Humble Petition of KABASI MALE whose address for purposes of this Petition is C/o M/s L & Co.
Advocates Plot 4, James Street, L. Chambers Suite 6, P.O. Box 4980, Kampala-Uganda whose names
are stated at the foot of this Petition showeth:1.

Your humble Petitioner is an adult mal Ugandan of sound mind and a registered voter at Kazo
Mixed Primary School Polling Station under Reg. ID No. 08734751 in Nansana Town
Council.

2.

AND your Petitioner states that the Election was held on the 10 th day of March 2006 wherein
the Petitioner and three others namely: Kibuuka Jimmy .K. Martin, Mulindwa Suleiman and
Wandyaka Moses Nsubuga were Candidates for the seat of Chairperson/Mayor of Nansana
Town Council.

3.

Your Petitioner states that the 2nd Respondent was returned and declared by the 1 st Respondent
as validly elected LC III Chairperson /Mayor of Nansana Town Council having polled, 2768
(Two Thousand Seven Hundred Sixty Eight) votes, while your Petitioner polled 2,661 (Two
Thousand Six Hundred Sixty One) votes.

1396

Rule 4(6) supra

Rule 4(7) supra
1398
Rule 4(8)
1397

308

4.

Your petitioner is aggrieved by the Election and declaration of the 2 nd Respondent as validly
elected LC III Chairperson / Mayor for Nansana Town Council.

5.

Your Petitioner states that the 2 nd Respondent was not validly elected as your Petitioners
symbol of a bicycle which he chose and was allocated by the 1 st Respondent was changed on
the ballot paper without prior notice to or consent and/or approval of the Petitioner and
instead a symbol.

6.

Your Petitioner states that the change of his symbol caused several of his supporters not to
vote him as they could not identify him using his bicycle symbol and accordingly, thought the
Petitioner has opted out of the race.

7.

That your Petitioner complained to the 1 st Respondent about the change of his symbol
immediately he realized it but the 1st Respondent failed and/or refused to rectify this anomaly.

8.

Your Petitioner states that the above Election was conducted in contravention and/or contrary
to the provisions and principles laid down in the Local Governments Act Cap. 243 and
Constitution of the Republic of Ugandan 1995 which contravention affected the results of the
Elections in a substantial manner rendering it invalid and without the will of the people in
Nansana Town Council.

9.

That the 2nd Respondent connived with the 1st Respondent agents to cheat and indeed cheated
votes in the 2nd Respondents favour at Nansana C/U Primary School West II B where the
2nd Respondent had got only 4 votes but the Returning Officer declared that the 2 nd
Respondent polled 77 votes.

10.

Your Petitioner states that the vote difference of 107 (One Hundred Seven) between the 2 nd
Respondent and the Petitioner was obtained by the 2 nd Respondent through cheating and/or
the irregularity caused by the 1st Respondent in flagrantly altering the Petitioners bicycle
symbol which misled the Petitioners supporters into not voting the Petitioner.

11.

The Petition is supported by the Petitioners Affidavit together with other Affidavits of
various deponents to be filed herein.

WHEREFORE your Petitioner prays that it may be declared that:a)

The 2nd Respondent was not validly elected as LC III Chairperson / Mayor of Nansana Town
Council.

b) The said Election be annulled and set aside and instead the Petitioner be declared the winner of the
Elections for the seat of LC III Chairperson / Mayor, Nansana Town Council.
c)

In the alternative but without prejudice to the foregoing, a fresh Election be conducted in the said
Town Council.

d) The Respondent pays cost of this Petition.

e)

Such other remedy available under the electoral laws as the Court considers just and appropriate in
the circumstances.

Dated at Kampala this day of 2006

_____________________________________
KABASI MALE
(PETITIONER)

309

_______________________________________
COUNSEL FOR THE PETITIONER
LODGED in the High Court Registry at Kampala this day of ..2006
________________________________________
REGISTRAR / DEPUTY REGISTRAR (CIVIL)

Who may present a petition (Locus Standi)

A petition questioning an election under the Parliamentary Elections Act or Local Government
Act may be filed by a candidate who loses an election. 1399In relation to an election candidate
means a person nominated as a candidate for election as an elected member of parliament. 1400
A registered voter in the constituency concerned supported by the signatures of not less than five
hundred voters registered in the constituency in a manner prescribed by regulations. 1401Any
person other than a candidate must attach the five hundred signatures otherwise the petition shall
be struck out.1402
Who may be respondent
Any person whose election is questioned by a petition,and the Electoral commission or any
returning officer of whose conduct a petition complains, may be made a respondent to it.An
unsuccessful candidate cannot be made a respondent to an election petition against his or her
will.Two or more candidates may be made respondents to the same petition,but the petition is
deemed to be a separate petition against each respondent.
Where the ground on which a petition seeks to avoid the respondents election applies equally on
another candidate elected at the same election who is not a respondent to the petition, it is not a
necessary to the hearing and determining of the petition that the other candidate should be joined
as a respondent.1403Where more petitions than one are presented in relation to the same election,
the court may direct that some or all of those petitions be dealt with as one petition. 1404

1399

S.60(2)(a) Parliamentary Elections Act &S.138 (1) Local Government Act

S.1 Parliamentary Elections Act
1401
S.60(2)(b) Parliamentary Elections Act &S.138 (3)(b) Local Government Act
1402
Athanasius K.Lule vs Hon Emmanuel Pinto Constitutional Petition No.5 of 1997 also reported in HCB
[1996] and Constitutional Cases Digest by Kituo Cha Katiba pg 116 Also refer to the petition of
Kamulegeya vs Iddi Kisiki Lubyayi Election Petition No.of 2006 at Masaka High Court Ronald Ndaula
vs Hajj Nadduli Election Appeal..of 2007 petition struck out for lack of 500 signatures.
1403
Line vs Warren (1884)14 QBD 73 and on appeal Line vs Warren (1885) 14 QBD 548 C.A
1404
Rule 18 Parliamentary Elections(Election Petitions)Rules
1400

310

Service of Petition
Notice in writing of the presentation of petition accompanied by a copy of the petition
shall,within seven days after the filing of the petition,be served by the petitioner on the
respondent or respondents, as the case may be. 1405
Within seven days after filing the petition with the registrar, the petitioner or his/her advocate
shall serve on each respondent notice in writing of the presentation of the petition, accompanied
by a copy of the petition,1406 and such service must be personal.1407
Where the respondent cannot be found within three days for effecting personal service on him or
her, the petitioner or his or her advocate shall immediately make an application to the court
supported by an affidavit, stating that all reasonable efforts have been made to effect personal
service on the respondent but without success. 1408
The failure to serve the respondent with the petition within the prescribed time will lead to
striking out the petition.1409
Answer of respondent to petition.
If the respondent wishes to oppose the petition, the respondent shall within ten days after the
petition was served on him or her,file an answer to the petition. 1410Where the respondent requires
further and better particulars of the petition,he or she shall apply for the particulars together the
answer.1411
The respondent shall, within five days after filing the answer with the registrar, serve a copy on
the petitioner or his/her advocate.1412

1405

S 62 Parliamentary Elections Act

Rule 6(1) supra n 1390
1407
Rule 6(3) supra
1408
Rule 6(4) supra
1409
Jude Mbabali vs Hon Ssekandi & Electoral Commission Election Petition Appeal No.----of 2006,
Ronald Ndaula vs Nadduli Election Appeal No.---of 2007
1410
Rule 8(1) Op.cit
1411
Rule 8(5) Op.cit
1412
Rule 8(4) Op.cit
1406

311

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT SOROTI
ELECTION PETITION NO 0009 OF 2006
IN THE MATTER OF THE PARLIAMENTARY ELECTIONS ACT CAP 17 OF 2005
AMONG ANNET ANITA:::::::::::::::::::::::::::::::::::::::PETITIONER
VERSUS
1.THE ELECTORAL COMMISSION:::::::::::::::::1ST RESPONDENT
2.HON.AKOL ROSE OKULLU:::::::::::::::::::::::::2 ND RESPONDENT
2ND RESPONDENTS ANSWER TO THE PETITION
SAVE AS is hereafter expressly admitted to be true, each and every allegation in the Petition is denied
as if the same were set forth herein and traversed seriatim.
Paragraphs 1, 2, 3, 4 and 5 of the petition are admitted.
Paragraphs 6,7,8,9,10,11,12 13, 14, 15 and 16 of the Petition are denied and the petitioner shall be put
to strict proof thereof.
The 2nd Respondent shall contend that the election for Woman Member of Parliament for Bukedea
District Constituency was conducted in compliance with the Constitution, the Electoral
Commission Act, Cap. 140 and the Parliamentary Elections Act, 2005. The 2 nd Respondent shall
contend that:
The election was not characterized by intimidation, lack of freedom and transparency,
unfairness and commission of numerous electoral offences and illegal practices as
alleged.
The election was not conducted contrary to sections 12(1) (e), (f), (h), (j) and (k) and 18(2)
and (3) Electoral Commission Act, Cap.140 as alleged by the petitioner.
The election and the entire electoral process was free, fair and transparent.
There was adequate voter education about the election and the voters properly exercised their
right to vote.
There were no illegal practices and offences allegedly committed by the 2 nd Respondent as
alleged.
In further answer to paragraph 9 of the petition the 2 nd Respondent asserts in the alternative and without
prejudice that if there was any non compliance with the provisions and/ or principles laid down in
the electoral laws of Uganda at all, such non compliance did not affect the result of the election in
a substantial manner. The 2nd Respondent shall contend that: The 2nd Respondent was returned as the validly elected Woman Member of Parliament for
Bukedea District Constituency after polling the majority of the valid votes cast in the
election with a difference of 13,982 votes between the petitioner and herself.

312

In further answer to paragraph 10 of the petition, the 2nd respondent contends that all the allegations
contained therein are false, baseless and vexatious. The 2nd Respondent shall contend that:Herself and or her agents did no engage in any acts of intimidation, harassment or
violence.
Herself and/ or her agents committed no electoral offence or illegal practices.
In answer to paragraph 14 of the petition, the 2nd respondent contends that she was not a public servant
and did not require resignation in accordance with the Parliamentary Elections Act.

The 2nd respondent shall oppose an order for discovery and production as a wastage of time and the
petitioner should officially request for the documents in issue from the 1 st Respondent and pay the
necessary fees.
The Petitioner is not entitled to the reliefs sought.
This answer is supported by the affidavit of Hon. Akol Rose Okullu the 2 nd Respondent and many other
affidavits shall be relied upon in answer to specific allegations.
WHEREFORE the 2nd Respondent prays that the Petition be dismissed with Costs.
Dated at Kampala this 13th day of October, 2006
_____________________
M/s S.A Advocates
COUNSEL FOR THE 2ND RESPONDENT

LODGED at the registry at SOROTI this. day of October, 2006.

_____________________
DEPUTY REGISTRAR

Drawn and filed by:

M/s S.A Advocates
Plot 38 William Street
P.O. Box 70075
Kampala.

Time for Presentation of election petition

313

In general, a parliamentary election petition must be presented within thirty days after the day on
which the result of the election is published by the Electoral commission in the Gazette. 1413
Similarly, a local government Election petition shall be filed within 14 days after the day on
which the results of the election have been notified by the Electoral Commission in the gazette. 1414
It is important to emphasise that lodging a petition pre-maturely will result in striking out the
petition since the cause of action is derived from declaration of the results in the gazette. A
petition which is filed before the results are gazetted is a nullity. 1415The time set under the
legislations within which to lodge a petition must be strictly adhered to otherwise this time cannot
be extended by court unless the statute provides for such extension. 1416
The case of Makula International Ltd vs His Eminence Cardinal Nsubuga is the authority for this
position of the law;
A court has no residual or inherent jurisdiction to enlarge a period of time laid down by
a Statute.1417
Where the period of time expires on a public holiday on which the court registry is closed, the
petition is deemed to be duly presented if it is presented on the next working day on which the
registry is open.
BURDEN AND STANDARD OF PROOF
The burden of proof in election petition lies on the petitioner who has to prove his/her case to the
satisfaction of the court.1418Any ground for setting aside an election petition shall be on a balance
of probabilities.1419
The only crucial aspect of this issue which Court must emphasize and bear in mind throughout the
trial of an Election Petition, is the degree of a probability which must be attained before the Court can
regard itself as satisfied that the ground or allegation is provided under S. 61 (1) and S. 61 (3) of the
Parliamentary Election Act of 2005.
Although the standard of proof is on the balance of probability, it must be slightly higher than in
ordinary cases.1420 This is because an election is of a great importance both to the individuals
concerned and the nation at large.
Although legislation has tried to specifically provide for the proof of the grounds on a balance of
probabilities, the standard has still been subjected to the satisfaction of the court and especially in
proof of illegal practices and electoral offences .
Withdrawal of petition
1413

S.60(3) Parliamentary Elections Act

S.138(4) Local Government Act
1415
Musitwa Herbert Mulasa vs Electoral Commission &Haji Jakira Mohamed Ssali C.A Election
Application No.05 of 2006
1416
Nelson Sande Ndungo vs Electoral Commission H.C Misc.App No.210 of 2006
1417
[1982] HCB 11 Gulamabas vs Ebrahim [1972]EA 22
1418
S.61(1) Parliamentary Elections Act
1419
S.61(3) ibid
1420
Masiko Winfred Komuhangi vs Babihuga J. Winnie Election Petition No. 9 of 2002
1414

314

A petition shall not be withdrawn except with leave of the court and after such notice has been
given as the court may direct.1421An application for leave to withdraw a petition shall be supported
by an affidavit of the petitioner or his or her advocate,if any, statingbthe ground on which the
petition is sought to be withdrawn.1422
If the court gives leave for the withdrawal of a petition,the court shall make a report to the
commission stating reasons for withdrawal. 1423If the petition is withdrawn,the petitioner shall be
liable to pay the costs of the respondent.1424
Appeals
Notice of appeal may be given either orally at the time judgement is given or in writing within
seven days after the judgement of the High Court against which the appeal is being made. 1425
Memorandum of appeal
A memorandum of appeal shall be filed with the registrar,in a case where oral notice of appeal
has been given,within fourteen days after the notice was given; and in a case where a written
notice of appeal of appeal has been given,within seven days after notice was given. 1426The failure
to file a memorandum of Appeal within the time specified will result in striking out the notice of
appeal.In order to avoid delays rules of court provide a time table within which certain steps in
litigation ought to be taken.1427
Record of Appeal
The appellant shall lodge with the registrar the record of appeal within 30 days after filing by him
or her of the memorandum of appeal.1428

BIBLIOGRAPHY

1421

Rule 22(1) The Parliamentary Elections (Elections) Rules

Rule 22(3) ibid
1423
Rule 22(8) ibid
1424
Rule 22(9) supra
1425
Rule 29 supra
1426
Rule 30 Op.cit
1427
Sanjay Tanna &Electoral Commission vs Ofwono Yeri Apollo Election Application No.08 of 2006, Utex
Industries Ltd vs Attorney General S.C.C.App No.52 of 1995
1428
Rule 31 op.cit
1422

315

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Osborns Law Dictionary 6th Edition
Morris and Read, Uganda Its Laws and Constitution,
Prof. E.E Ssempebwa: Interlocutory Applications and Orders-Problems and Prospects, A
paper presented at the Judges Conference held on 20 th &21st February, 1995
Judicial Discretion -A paper presented by Hon Justice Andrew Nyirenda at The Annual
Conference for the Association of the Law Reform Agencies for East and Southern
Africa (ALRAESA) at Entebbe, Uganda September 4-8,2005.
Sir Jack I.H.Jacob The Reform of Civil Procedural Lawin The Reform of Civil Procedural
Law and other Essays in Civil Procedure, Sweet &Maxwell (1982)
The Discretion of the Judge Royal Bank of Scotland Lecture, Oxford (May 17 1990)
[1990] Denning Law Journal 27
William L.Reynolds Judicial Process in a Nutshell
Judicial Hints on Civil Procedure 2nd Edition Richard Kuloba
The Code of Civil Procedure Vol.II 4th Edition 1944
Spry Equitable Remedies 4th Edition (1990)
Civil Justice on Trial-The Case for Change Report by the independent working Party set up
jointly by the General Council of the Bar and the Law Society by Hilary Heilbron
QC 1993
Osborns Concise Law Dictionary 7th Edition by Roger Bind (1983)
Halsburys Laws of England 3rd Edition & 4th Edition
OHare J and Hill, RN Civil Litigation 7th Edition, (1995), London; FT LAWS & TAX
Chitaley and Raos Code of Civil Procedure 6th Edition
Commercial Litigation: Pre-Emptive Remedies 3rd Edition by Iain S Goldrein London Sweet
& Maxwell 1997
Mohmed Mbabazi :The Jurisprudence of the Interpretation and Application of Article
126(2)e of the 1995 Constitution:A case for the Desecration of the New Constitution
Sir Maurice Amos A Day in Court at Home and Abroad (1926) 2 Cambridge Law Journal
G.L Sanghi, Trial and Procedures in India in Trial and Procedures Worldwide Edition by
Charles Platto
Lord Woolf, Access to Justice.Final Report,HMSO

316

Sime S. A practical Approach to Civil Procedure (1994) LONDON Blackstone,

317