UGANDA CHRISTIAN UNIVERSITY

FACULTY OF LAW

BY PETER BENJAMIN WANDA (LLM MAK LLB, DIP LP LDC)

CAN LLD(UP) SOUTH AFRICA

MANAGING PARTNER WANDA, SAKWA&CO.

ADVOCATES

ADVOCATE , COMMISSIONER FOR OATHS&NOTARY

PUBLIC

TOPIC I
1.0 INTRODUCTION TO CIVIL PROCEDURE AND PRACTICE IN
UGANDA.

The law of civil procedure deals with the process through which legal
disputes are resolved, either through formal court system or alternative
dispute resolution mechanism. Civil procedure as opposed to substantive
law deals with the enforcement of legal obligations and rights that accrue
under substantive law.

Civil litigation connotes a process through which civil disputes are

resolved through the court system; right from pre-trial, trial, judgment,
and post judgment and appellate or remedial system.

1.1 Importance of the law of civil procedure.

i) The law of civil procedure regulates the steps, which must be
taken by the party in litigation
ii) From the time the party commences the legal proceedings up to
the time of enforcement of judgment, the law entails
determination of a document a party must use to set the law in
motion i.e. filing documents by the party
iii) It entails the ways in which the party must bring the proceedings
to his adversary (exchange of pleadings)
iv) It promotes transparency throughout the trial. To this end the
rules are intended to bring light in all matters in dispute to
enable parties prepare their cases appropriately as opposed to
be taken by surprise or being ambushed.

1.2 Applicability of the civil procedure Act and the Rules.

The law of civil procedure is principally regulated by the civil procedure

Act and the Civil Procedure Rules as well as the Magistrate’s Court Act and
the Rules made under the 3rd Schedule.
The Civil Procedure Act and the Rules apply to the High Court, Chief
Magistrate’s Court and Grade 1 Magistrate Courts. However, in so far as
Grade II magistrate Courts are concerned, the applicable rules of
procedure are set out in the 3rd Schedule of the Magistrate’s Court Act.

According to section 219 MCA, every suit or appeal in the court of a chief
magistrate or a magistrate grade I shall be instituted and proceeded with
in such manner as may be prescribed by rules applicable to suits and
appeals instituted in the High Court, and every suit in the court of a
magistrate grade II shall be instituted and proceeded with in the manner
prescribed by the rules set out in the Third Schedule to the Act.
Read Nakabago Co-operative Society vs. Livingstone Kyanga
[1992] III KALR 137 for the principle that the CPR (specifically 0.36 on
summary procedure) are inapplicable to a court presided over by a
magistrate Grade II.

Read Yeseri Waibi vs. Edisa Lisi Byandala 1972 HCB 281 for the
principle that the CPR are not applicable to courts presided over by a
Grade II magistrate, the applicable rules are in 3 rd schedule to the MCA.

Scope of the CPA and Rules and other Applicable legislations and Rules of
Procedure.

The CPA and the rules are not exhaustive on all procedures in civil legal
disputes, reference may be made to other applicable legislations and rules
especially where such legislation specifically expressly provides for special
procedure to be adopted in matters arising under the legislation.

Read, Re Kenshavlal Punja Shah (1955) 22 EACA 381 for the

principle that it is a rule of construction that every procedure is to be
understood as permissible till it is shown to be prohibited by law.

Procedure in the CPA and CPRs may apply if a remedy is created but no
procedure is provided for in any other specific legislation. Read Oil Seeds
(U) Ltd vs. A.G CACA No. 127/2003 for the principle that where no
specific procedure is provided for under a particular legislation, the
appropriate procedure in the CPA may be adopted.

Read Charles Harry Twagira vs. AG [2008] HCB 28 for actions under
Article 50 for enforcement of human rights being commenced by either a
plaint or for declarations by way of Notice of Motion.

Where no procedure is available, the High Court may adopt procedure

that is appropriate in the circumstances. Section 39(2) of the Judicature
Act provides that where in any case no procedure is laid down for the High
Court by any written law or by practice, the court may, in its discretion,
adopt a procedure justifiable by the circumstances of the case. Read LDC
vs. Edward Mugalu & Anor [1990-91] KALR 103 on the procedure of
revision not provided for by any law and can be by way of a formal letter.
Also Kakooza Mutale vs. AG and Anor [2001-2005] HCB 110 on
applicability of s. 39 Judicature Act.
 1.3 Inherent powers of the court and limitations (s.33
judicature Act and s.98 CPA)

In case no remedy is provided for in the Act or the rules, recourse is had
to s.98 of the CPA which permits court to grant any remedy or make order
as interest of justice may dictate.

Read Aya Investments vs. M/s. Kibeedi & Co. Advocates [2008]
HCB 130, Adonia v Mutekanga (1970) EA 429, 432; G.W Katakwandi vs.
Biraro (1977) HCB; Standard Chartered Bank vs. Clouds 10 Ltd [1988-90]
HCB 84 for the principle that the inherent jurisdiction enshrined in s.98 of
the CPA cannot be invoked where an express remedy is provided for
under any law.

1.4 Rules of Procedure and Substantive Justice (Article

126(2) (e) of the Constitution

The rules of procedure laid down the process and documents required to
obtain a particular relief through the courts of law. The rules therefore
regulate the manner in which suits are commenced in courts of law and
requisite documents and form that must be adopted. The issue that arise
is whether noncompliance with the procedure and form set out in the
rules is capable of invalidating such proceedings. The rules apply subject
to the constitution. Art. 126 (2) (e) is normally invoked to cater for
administration of justice without undue regard to technicalities.

Read Francis Bwengye vs. Haki Bonerav HCT-CV-CA No. 033/2009

Kasirye Byruhanga &CO. Advocates vs Uganda Development Bank

Uganda Crop industries Ltd vs. URA HCCS No. 05/2009

Proline Soccer Academy vs. Lawrence Mulindwa & 4 Ors HCMA No.
0459/2009

Limitation of Art 126(2) (e)

In administration of justice and determination of substantive disputes,

courts are enjoined not to compromise justice by placing significant
reliance on rules of procedures. Nevertheless Art. 126(2) (e) is not
intended to wipe out the applicable rules of procedure

In Utex Industries Ltd vs. A.G SCCA NO.52/1995 regarding how

slavishly Art. 126(2)(e) of the constitution has been and continues to be
applied when questions to follow procedure arises in a proceeding, the
Supreme Court had this to say;

‘Regarding Art 126(2)(e)….we are not persuaded that the

constituent Assembly Delegates intended to wipe out, the rules
of procedure of our courts by enacting Article 126(2)(e). Para (e)
contains a caution against undue regard to technicalities. We
think that the article appears to be a reflection of the saying that
rules of procedure are handmaids of justice-meaning that they,
should be applied with due regard to the circumstances of each
case’.

The above observation was repeated by Supreme Court of Uganda in

Kasirye, Byaruhanga & Co. Advocates v. UDB SCCA No.2/1997 and
added; ‘that a litigant who relies on the provision of Art. 126(2)(e) must
satisfy court, that in the circumstances of the particular case before court
it was not desirable to pay undue regard to a relevant technicality. Art
126(2) (e) is not a magic wand in the hands of a defaulting litigant’’.

Read Athanassus Kivumbi Lule vs. Hon. Emmanuel Pinto CA const.

Petition No. 5/1995 for the principle that Art. 126(2)(e) was not
intended to wipe out rules of procedure of courts but the rules should be
applied as hand maids of justice depending on the circumstances.

Art. 126(2) is not of general application and will only be invoked in fitting
circumstances. Read Tororo Cement Co. Ltd vs. Frokina
International Ltd SCCA No. 2 of 2001. –Art. 126 was not meant to
encourage sloppy drafting of pleadings.

1.5 Subject Matter of Adjudication of Civil Procedure

It is a cardinal doctrine of jurisprudence that a court of law will not
adjudicate hypothetical questions – namely, those concerning which no
real, live dispute exists, or one which is purely academic or speculative in
nature.

In the case of Legal Brains Trust (LBT) Ltd versus Attorney General
Ref. No. 10/2011 and Appeal No. 4 of 2012 (EACJ) the East African
Court of Justice Appellate division at Arusha stated as follows;
‘In this regard, it is a cardinal doctrine of our jurisprudence
that a court of law will not adjudicate hypothetical questions-
namely, those concerning which no real, live dispute exists. A
court will not hear a case in the abstract, or one which is
purely academic or speculative in nature-about which there
exists no underlying facts in contention. The reason for this
doctrine is to avoid the hallow and futile scenario of court
engaging its efforts in applying a specific law to a set of mere
speculative facts. There must be pre-existing facts arising
from a real live situation that gives rise to, for instance, a
breach of contract, a tortuous wrong, or other such grievance
on the part of one party against another. Absent such a
dispute, the resulting exercise would be but an abuse of the
court’s process.’’

In the case of Uganda Telecom Limited Versus Wand Telecom

Limited HCCA No. 28/2015 the judge cited Musota Stephen J in An
Application for Judicial Review between Julius Maganda vs. National
Resistance Movement High Court Miscellaneous Application No. 154 of
2010 with the learned judge having this to say;
’’Courts of law do not decide cases where no live dispute between parties
are in existence. Courts do not decide cases or issue orders for academic
purposes only. Court orders must have practical effects. They cannot
issue orders where the issues in dispute have been removed or merely no
longer exists’’. That this position was confirmed by the Court of Appeal in
the case of Human Rights Network for Journalist and Another vs. Uganda
Communications Commission & Others Miscellaneous Cause No. 219 of
2013. That it would appear clear that the instant appellant is engaged in
an exercise in futility for it is evident that the main cause from which the
instant appeal arise are no longer in existence and the rights of the
parties have since been determined. That to peruse an appeal on matters
which have since lost its backbone would in my view be an exercise in
futility and thus merely academic and would add no value to the
jurisprudence of the courts.

1.6 Standard of proof in civil cases

It is trite law that proof in civil matters which is sufficient to justify a

finding of fact is on the balance of probabilities. In the case of Nsubuga
vs. Kavuma [1978] HCB 307 it was held that in civil cases the burden
lies on the plaintiff to prove his or her case on the balance of probabilities.

Section 101(1) of the Evidence Act (Cap.6) provides that whoever

desires any court to give judgment as to any legal right or liability on the
existence of facts which he or she asserts must prove that those facts
exist.

In the case of Baluku & Anor vs Bwambale HCCA 49/2016 held that in
all civil cases the burden of proof lies on the plaintiff or appellant to prove
their case on a balance of probabilities. A party can only be called to
dispute or rebut what has been proved by the other side. This is so
because the person who alleges is the one who is interested in court
believing their contention. [See Nsubuga vs. Kavuma [1978] HCB 307,
Sebuliba vs. Co-op Bank (1982) HCB 19 and Lugazi Progressive School &
Ors (2001-2005) HCB 121.

Meaning of balance of probabilities

The civil standard of proof is on a balance of probabilities. Saying

something is proven on a balance of probabilities means that it is more
likely than not to have occurred.

In the case of Kala vs Ogobilo Civil Appeal No. 0009 of 2014 Justice
Mubiru stated that it is trite law that in civil matters which is sufficient to
justify a finding of fact is on the balance of probabilities. The meaning of
this standard was explained by Lord Birkenhead L.C. in Lancaster v
Blackwell Colliery Co. Ltd 1918 WC Rep 345, thus:

‘If the facts which are proved give rise to conflicting inferences of equal
degree of probability so that the choice between them is a mere matter of
conjecture, then, of course, the applicant fails to prove his case because it
is plain that the onus in these matters is upon the applicant. But where
the known facts are not equally consistent, where there is ground for
comparing and balancing probabilities as to their respective value, and
where a reasonable man might hold that the more probable conclusion is
that for which the applicant contends, then the Arbitrator id justified in
drawing an interference in his favour.’’ That this standard is satisfied if,
and only if, the court upon considering the evidence adduced by the party
on whom the burden lies, alongside all the other evidence before it,
believes that the existence of the fact sought to be proved is so probable
that a prudent man ought, under the circumstances of the particular case,
to act upon the supposition that it does exist. Where a reasonable man
might hold that the more probable conclusion is that, for which the
plaintiff contends, then the court is justified in making a finding in the
plaintiff’s favor.

Standard of proof of fraud.

The proof of fraud requires a standard beyond the balance of probabilities.

In the case of Sebuliba versus Coop bank Ltd (1987) HCB 130, it was
stated that;

‘The standard of proof in fraud cases is beyond mere balance

of probabilities required in ordinary civil cases though not
beyond reasonable doubt as in criminal cases.’

In the case of Kazzora vs. Rukuba SCCA No. 13 of 1993 Order JSC
held that fraud must be strictly proved; and although the standard of
proof may not be so heavy as to require beyond reasonable doubt,
something more than a mere balance of probabilities is required.

Similarly, in Kampala Bottlers v Damanico, Civil Appeal No. 22 of

1992 Wambuzi CJ stated that fraud must not only be proved to a degree
higher than a mere balance of probabilities, but must be proved against
the beneficiary, either directly by actual fraud on the party of the
beneficiary or indirectly with his knowledge or consent or participation in
some way.

Pre-Entry Exam 2010/2011

Qn. 39 While in criminal cases, prosecution must prove a case beyond

reasonable doubt, in civil suits, the plaintiff must prove the
case…………….’’

Pre-Entry Exam 2012/2013

Qn. 50 A Plaintiff filed an application by motion instead of summons in

chambers as prescribed by the relevant rules. Is the mistake fatal? Give a
reason for your answer

Pre-Entry Exam 2013/2014

Qn. 50 List the courts to which the Civil Procedure Rules ordinarily apply

Pre-Entry Exam 2017/2018

Qn. 1 What is your understanding of the expression rules of procedure are
handmaidens of justice?

TOPIC II

Civil litigation and Alternative Dispute Resolution (ADR).

Alternative Disputes Resolution is a process designed to help the parties

amicably resolve disputes without need for formal legal proceedings. The
new world order has moved away towards ADR rather than competition
and rivalry. The conception of a lawyer as a gladiator who must fight to
death is disappearing and is being replaced by the newer conception of a
lawyer as a mediator, a problem solver, an architect and an engineer of
the appropriate dispute resolution technique. This has prompted provision
of the ADR at an early stage.

Parties are encouraged to use ADR procedure wherever appropriate; the

goal is to preserve for the court only those disputes which are better
suited by the courts and to avoid overloading and paralyzing the courts
with cases that do not necessarily require the unique capabilities of
courts.

When a lawyer is faced with a dispute, he need not have to run to court,
his first duty is to evaluate a variety of possible actions for resolving the
dispute and must advise on the options that seem appropriate for solving
the problem.

Lawyers must learn about the scope of options that are available and how
each works. They must learn how to use a combination of strict
adjudicating rules as well as new non adjudicating techniques. He must
know the alternative methods of dispute resolution and know their
advantages and disadvantages.

ADR is a range of processes designed to aid the parties in resolving

disputes without a need to a formal judicial proceeding and may take a
form of mediation, a process by which a neutral third person facilitates
communication between parties to a dispute and assists them in reaching
a mutually agreed resolution of the dispute. The Judicature (mediation)
rules 2013 requires courts to refer every civil action for mediation before
proceeding for trial. See the essence of mediation in High Court
Commercial Division, Read the case of Betuco (U) Ltd & Anor. Vs.
Barclays Bank of Uganda Ltd HCT-00-CC-MA-0507-2009.

It may take the form of Arbitration and conciliation. Arbitration is a

process in which a third party who is neutral and knowledgeable in the
area of dispute after hearing evidence and arguments of the parties in a
relatively informal hearing makes a binding decision resolving a dispute.
See, the Arbitration and Reconciliation Act Cap 4. EADB Vs. Ziwa
Horticultural Exporters Ltd [1997-2000] UCLR 247; Fulgencio us
Munghereza vs. Price Water House Coopers [1997-2000] UCLR 45; see the
attitude of courts towards parties compliance with arbitration clauses.

Mediation and arbitration at conferencing and the significance of

scheduling conference, see; Tororo cement Co. Ltd vs. Frokina
International Ltd SCCA No. 2 of 2001. Tsekooko JSC holding that
O.11CPR provides for the holding of a scheduling conference in civil cases
and that the requirement is mandatory. That the principal objective being
to enable court to assist parties to dispose of cases expeditiously by
sorting out points of agreement and disagreement or assessing the
possibility of mediation, arbitration and other forms of settling a suit. See;
Stanbic Bank Ltd Vs. Uganda Cros Ltd SCCA 4/2004.

ADR is necessary for the following reasons;

i) For a speedy trial and resolution of disputes. Parties are involved

in finding a common ground. Resolution of disputes is bound to
be quick and acceptable by the parties as opposed to a
conventional trial.
ii) ADR reduces the case load in court
iii) ADR reduces the legal costs of parties. It is cheaper in terms of
expenses and eases the pressure on the public expenses as the
state will commit lesser funds on the judiciary
iv) ADR serves to enhance public satisfaction with the judiciary as
parties participate in ensuring that the decision arrived at is
beneficial to them. Resolution is tailored to each person’s needs.
v) ADR makes it easier with parties to comply with resolutions with
which they participated.
vi) Even where ADR may not resolve the dispute conclusively, it may
serve to narrow the dispute and tailor the remaining litigation
procedure.
vii) Unlike conventional litigation, ADR focuses on substantial issues.
In practice the Centre for Arbitration and Dispute Resolution has
been created to conduct the dispute resolution. It is closely
linked to the Commercial Division of the High Court that it
complements its work although it is not part of the court
institutionally.
viii) Enables privacy
When all these methods of resolving disputes fail then the parties return
to litigation.

TOPIC III

THE STRUCTURE & COMPETENCE OF COURTS -JURISDICTION OF

COURTS:

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

Read; also the Arbitration & Conciliation Act Cap 4
Read; The Employment Act 2006
Read; Jurisdiction of Registrars of the High court; O.50 CPRs and
Judicial Powers of Registrars (Practice Direction No. No.1 of 2002
Read; Kuloba; Judicial Hints on Civil Procedure
Read; The Magistrates Courts (Magisterial Areas) Instrument
No.45/2007

The Magistrates Courts (Magisterial Areas) Instrument Jan/20 17

The High Court (Circuits) Instrument No.20/2004

Meaning of Jurisdiction of Courts

Any person proceeding to defend his rights in the courts of law otherwise
referred to as litigation has to take into account certain factors before
commencement. The first aspect is about jurisdiction. Jurisdiction in
simple language means the power of court or a judge to hear and
entertain an action , matter or other proceedings Alamanzani Zziwa v
Angello Kintu HC MIS app No 37/1993; See also; Mukasa v
Muwanga HC Misc App No. 31 / 1994.

In the case of Uganda Revenue Authority (URA) vs. Rabbo

Enterprises (U) Ltd & Anor SCCA No. 12 of 2004 the Supreme Court
defined the term jurisdiction as defined in Words and Phrases Legally
defined, Volume 3, I-N at page 13 to mean; Authority which court has to
decide matters that are before it or take cognizance of matters presented
in a formal way for its decision. The limits of this authority are imposed by
statute, charter or commission under which court is constituted and may
be extended or restricted by the like means. If no restriction or limit is
imposed the jurisdiction is said to be unlimited. A limitation may be either
as to the kind and nature of the actions and matters which the particular
court has cognizance or as to the areas over which the jurisdiction shall
extend, or it may partake both these characteristics. If the jurisdiction of
an inferior court or tribunal... depends on the existence of a particular
state of facts, the court or tribunal must inquire into the existence of the
facts in order to decide whether it had jurisdiction;where the court takes it
upon itself to exercise a jurisdiction which does not possess, its decision
amount to nothing. That following the above definition, it is trite principle
of law that the jurisdiction of a court must be found in statute.

In the case of Ozuu Brothers Enterprises vs. Ayikoru Milka

H.C.C.Revision No. 2 of 2016 Justice Mubiru stated that Jurisdiction is a
term of comprehensive import embracing every kind of judicial action. The
term may have different meanings in different contexts. It has been
defined as a limit imposed on the power of a validly constituted court to
hear and determine issues between person seeking to avail themselves of
its process by reference to the subject matter of the issue or to the
persons between whom issues are joined or to the kind of relief sought
(See: A.G of Lagos State v Dosunmu (1989) 3 NWLR pt. 111, pg. 552 SC) It
therefore means and includes any authority conferred by the law upon the
court to decide or adjudicate any dispute between the parties or pass a
judgment or order.

Competence, Composition of Courts and their Establishment

A court must have both jurisdiction and competence in order to be

properly seized of a cause or matter.

In the case of Erias Lukwago Lord Mayor KCCA Versus AG & KCCA
Civil Application No. 06/2014 (SC) it was held that the Supreme Court
has no jurisdiction to entertain an appeal from a decision of a single
justice of an appeal given the express provisions of section 12 Judicature
Act. That the right of Appeal from Court of appeal to the Supreme Court is
provided for under s.6(1) J.A. The quorum of the Court of Appeal is
provided in Art. 135(1) in constitution of un even number not being less
than 3 members of the Court. That while the quorum of court of Appeal is
three judges, section 12 J.A enables a single judge of Court of Appeal to
exercise any power vested in the Court of Appeal in any interlocutory
cause or matter before the Court of Appeal. That a person dissatisfied with
a decision of a single justice shall be entitled to have matter determined
by a bench of there justices of the Court of Appeal. The substantial issue
was whether a decision or order of a single judge of the Court of Appeal is
appealable to the Supreme Court. It was held that such an appeal is not
possible because of section 12(2) J.A. That the appropriate action the
applicant can take is to refer the matter to a bench of three judges of the
Court of Appeal for review. That bench has powers to vary, reverse or
confirm the decision of a single judge. Thereafter, the applicant can
appeal to the Supreme Court against the decision of the three judges of
the Court of Appeal.

In the case of Ozuu Brothers Enterprises vs. Ayikoru Milka

H.C.C.Revision No. 2 of 2016 Justice Mubiru stated that a court must
have both jurisdiction and competence in order to be properly seized of a
cause or matter. That whereas jurisdiction is a creature of a statute and is
the power conferred on a court by statute or the constitution, a court is
competent when;

1) It is properly constituted with respect to the number and

qualification of members
2) The subject matter of the action is within its jurisdiction and there is
no feature in the case which prevents the court from exercising its
jurisdiction (such as limitation or lack of capacity of the parties)
 3) The action is initiated in compliance with the rules of procedure
4) Any condition precedent to the exercise of its jurisdiction has been
fulfilled.

Sources of Jurisdiction.

Jurisdiction of a court is not a matter for implication but must be

prescribed by law. The jurisdiction of court of record is set out in the
constitution and such courts can appropriately determine matters falling
within their jurisdiction. ; In the case of Ahamed Kawooya Kangu V
Bangu Aggrey Fred and Anor [2007] HCB 35 SC. Justice Bart
Katureebe held that jurisdiction of the Court is not a matter of implication
but must be prescribed by law.

Courts are established directly or indirectly by the constitution and their

respective jurisdictions are accordingly derived from the constitution or
other law made under the authority of the constitution. Baku Raphael
Obudra and Obiga Kania v AG SC court. App No. 1/2005 Mulenga
JSC held that courts are established directly or indirectly by the
constitution and that there respective jurisdiction are accordingly derived
from the constitution or other laws made under the authority of the
constitution.

Jurisdiction and Pleadings

In pleadings, it is a requirement that the parties plead facts which bestow

jurisdiction upon the court;-O.7 r 1 (f).
In the case of James Fredric Pool Nsubuga C/o. Kizito & Co.
Advocates vs. A.G H.C.C.S No. 1296/87 Justice Okello (as then he was)
held that O.7r1 (f) CPR clearly imposes on the plaintiff a duty to state in
his plaint facts showing that the court has jurisdiction in the matter and a
mere assertion by the plaintiff in the plaint that the court has jurisdiction
is not enough, the important thing is that facts showing that the court has
jurisdiction must be stated in the plaint. This view was applied in
Alexander Mutongole V NYTIL CA No. 94 of 1968(1971) HCB 114;
See also Bisuti V Busoga District Admin HCCS No. 83/1969
Where a court entertains a matter falling outside its constitutional or
statutory mandate, it will be assuming jurisdiction not given to either by
Parliament or any other law; A court cannot and should not exercise
jurisdiction not given to it by law; Athanassus Kivumbi Lule v Hon.
Emmanuel Pinto CA const. Petition No. 5 /1995-the court found that
a court cannot confer jurisdiction upon itself and where a court that has
no jurisdiction entertains the matter, any proceedings arising there from is
a nullity.

No court can confer jurisdiction upon itself and if it does, such proceedings
are a nullity, and it is well established principle of the law that judgment of
a court which acts without jurisdiction is a nullity. Desai v Wansaw
(1967) EA 351
However, the courts are obliged and mandated to exercise their
respective jurisdiction in accordance with the law: Makerere University
V Rajab Kagoro [2008] HCB 103

General rule on Jurisdiction in Civil Matters:

S.5 CPA. Any court shall subject to the provisions of this Act have
jurisdiction to try all suits of civil nature excepting suits of which its
cognisance is expressly or impliedly not barred by the law. Read and
Compare S. 208 of the MCA.

Pecuniary and Geographical Jurisdiction.

Jurisdiction constitutes both geographical and pecuniary jurisdiction;

Abbey Semakula V Eldad Rubarenzya [1996] II KALR 22 Mangalita
Namirembe V Kalamatu Tebukola [1995] IIIKALR 84;

Geographical jurisdiction, ‘Lex lousu rule’, S.12 CPA provides that suits are
instituted where the subject matter is situate subject to the pecuniary or
other factors in law. Pecuniary jurisdiction is also provided for under S.4
CPA that the Act shall not operate to give court jurisdiction over amount in
excess of pecuniary limit.

Jurisdiction of local council Courts.

Jurisdiction of local council courts is regulated by the local council Act

2006 that sets out the hierarchy of local council courts from L.C.1 to L.C.
III and subsequently to the Chief magistrates Court.

Section 10 of the Local Council Courts Act provides for the legal
jurisdiction of L.C courts.

Local council court have jurisdiction for the trial and determination of
(a) Causes and matters of a civil nature specified in the Second Schedule
to this Act provided the value of the subject matter in dispute does
not exceed one hundred currency points (UGX.2,000,000/-.) These
include; Debts, Contracts, Assault or assault and battery, Conversion,
Damage to property, and Trespass

(b) Causes and matters of a civil nature governed only by customary law
specified in the Third Schedule and not restricted by the monetary value
of the subject matter in dispute. These include; disputes in respect of land
held under customary tenure, disputes concerning marriage, marital
status, separation, divorce or the parentage of children, disputes relating
to the identity of a customary heir, and Customary bailment.
Read; Joweria Nalukwago v Admin. General HCC No 102 /1995 /
1997 IU KALR 139 for the principle that Local council courts exercising
jurisdiction in land disputes relating customary tenure are not restricted
by the monetary value of the subject matter.
In the case of Alanyo & Anor vs. Angut & Anor HC Civil Appeal No.
0025/2009 held that the jurisdiction of local council courts regarding land
matters is provided for under s. 10 of the local council Act, 2006 and the
3rd schedule to the Act restricts jurisdiction to customary land. That the
proceedings in the LC II were null and void abinitio for lack of jurisdiction
as the subject matter of the suit was title land in Gulu municipality. Much
as the agreement described it as customary land, the fact remains it was
not a customary land. LCII court has original jurisdiction in case it was a
customary land of which it was not. That a court without jurisdiction
cannot make any legally binding orders.
(c) Causes and matters arising out of infringement of bye-laws and
Ordinances duly made under the Local Governments Act;

(d) matters specified under the Children Act;

(e) matters relating to land.

Section 11 of the Local Council Courts Act provides for where to

institute suits. That every suit shall be instituted in the first instance in
a village local council court, if that court has jurisdiction in the matter,
within the area of whose jurisdiction—

(a) the defendant actually resides at the time of the

commencement of the suit; or

(b) where the cause of action in whole or in part arises; or

(c) in the case of a dispute over immovable property, where the

property is situated.

However S.76A (1) of the Land (Amendment) Act 2004 provides as

follows;

“Notwithstanding the provisions of Sections 5,7 and 29 of the Executive

Committee (Judicial Powers) Act, the parish or Ward Executive Committee
Courts shall be courts of first instance in respect of land disputes.”

Justice Musota Stephen stated considering the jurisdiction of

Local Council court in the case of Mutonyi Margaret Wakyala& Ors
Vs. Tito Wakyala & Ors HCT-04-CV-CR-0007-2011 stated as follows;
Jurisdiction is determined by S.10 and 11 Local Council Courts Act (LCCA)
and by implication S.32 which determines how appeals lie from LC.I to
LC.II to LC.III etc. But more specifically, jurisdiction of LC Courts in land
matters is conferred by S.76A (1) of the Land (Amendment) Act 2004.
It provides “Notwithstanding the provisions of Ss 5,7 and 29 of the
Executive Committee (Judicial Powers) Act, the parish or Ward Executive
Committee Courts shall be courts of first instance in respect of land
disputes.” That S.5, 7 and 29 are similar to S.10, 11 and 32 of the LCCA
which amended the Executive Committee (Judicial Powers) Act.
The issue was Whether S.22 (5) of the Local Council Courts Act confers
upon LC.III Court powers to determine land disputes as a court of first
instance and If so, how does that affect S.76A of the Land (Amendment)
Act, 2004 and how does it affect the jurisdiction of the LC.II Courts.”

That the law which establishes and outlines the composition of Local
Council Courts is The Local Council Courts Act 2006. This Act has to be
read together with The Local Council Courts Regulations 2007 which lays
down the procedure to be followed while filing cases in the local council
courts and how the hearing of the said cases have to be conducted in the
respective courts. That under S.10 LCCA, subject to any other written law
every local council Court shall have jurisdiction for the trial and
determination of---

a) Causes and matters of a civil nature specified in the second

schedule to the Act. The second Schedule lists the matters as. 1. Debts
2. Contracts 3. Assault of Assault and battery 4. Conversion 5.
Damage to property 6. Trespass.

b) Causes and matters of a civil nature governed by customary law

specified in the third schedule and these are (i) disputes in respect of
land held under customary tenure; (ii) disputes concerning
marriage, marital status, separation, divorce or the parentage of children;
(iii) disputes relating to the identity of a customary heir; (iv) customary
bailment.

c) Causes and matters arising out of infringement of bye laws and

ordinances duly made under the Local Government Act.

d) Matters specified under the Children Act.

e) Matters relating to land.

That S.10 LCCA goes ahead to specify the pecuniary jurisdiction for
matters specified in the second schedule to be of a value not exceeding
one hundred currency points and those in schedule three to be of
unrestricted monetary value. According to the first schedule of the LCCA
a currency point is equivalent to twenty thousand shillings. That S.11 of
the LCCA provides for where to institute suits thus:- “(1) Every suit shall
be instituted in the first instance in a village local council court if that
court has jurisdiction in the matter……”

That this jurisdiction envisages territorial and pecuniary jurisdiction and

location where the defendant actually resides at the time of
commencement of the suit or where the cause of action in whole or in
part arises; or in the case of immovable property, where the property is
situated. Therefore, regarding whether an LC.III Court has original
jurisdiction, the answer is found in Regulation 32 of the Local Council
Courts Regulations which amplifies S.11 LCCA. It provides that:-
“(1) Every suit shall be instituted in the first instance in a village local
council court, within the area of whose jurisdiction the defendant resides
at the time of the suit or where the cause of action in whole or part arises
or where the immovable property in dispute is located. That neither S.22
(5) LCCA nor Ss.10 and 11 confer upon the LC.III Court powers to act as a
court of first instance. The jurisdiction of the LC.III Court is found in S.32
which deals with the mode of appeal. A party dissatisfied with a judgment
or order of a local Council Court may subject to the provisions of S.32 or
any other written law appeal against the judgment or order (b) ……… of a
parish local council court to a town division or sub-county council court.”
That the respective LC.III Courts acted without jurisdiction when they
heard the above cases as courts of first instance. Their actions were null
and void ab initio and will be set aside on that account respectively.

That regarding the second question (If so, how does that affect S.76A of
the Land (Amendment) Act, 2004 and how does it affect the jurisdiction of
the LC.II Courts) this has to be considered in light of the enactment of the
Local Council Courts Act which has been extensively considered herein
above vis-a-vis S.76A of the Land Amendment Act 2004 which gave the
LC.II Courts power to handle land matters as courts of first instance. That
there appear to be concurrent in land matters given to both the LC II
Courts under the Land Amendment Act and LC I Courts the Local Council
Act because the latter Act did not expressly repeal the former. S.10 (1) of
the LCCA commences thus:-

“(1) Subject to the provisions of this Act and of any other written law
every local council court shall have jurisdiction for the trial and
determination of ……………… matters relating to land.”

That it is trite law that where an earlier statute is in conflict with a later
one, the later statute prevails. This is a conclusion based on the
assumption that the Legislature keeps abreast with the needs of the time
and is wiser as time passes. Uganda Revenue Authority v. Uganda
Electricity Board HCT-CA-001-2006. In Re Williams (1887) 36 ch. D
537 at 578 held, “And it appears to be a Constitutional necessity as well
as an established rule of construction that the last utterances of the
legislature should prevail over earlier statutes inconsistent with it.”

That the Land (Amendment) Act No.1 of 2004 did allow the LC.II Court to
handle matters concerning land disputes as a court of first instance
removing jurisdiction from the LC.I Court. However, by virtue of S.11 of
the LCCA No.13 of 2006 this matter was revisited by the Legislature and
as of now jurisdiction was restored to the LC.I Court. Suits have to be
commenced in the LC.I court as a court of first instance. While there is no
express repeal of the powers of the LC.II Courts under the Land Act in the
LCCA, there is implicit or implied repeal thereof rendering the powers of
LC.II Courts stale which cannot be enforced by any court of law. Therefore
the LCCA which is a later statute repealed S.76A of the Land Act by
implication thus removing powers from the LC.II Courts acting as court of
first instance in land matters. It also completely reformed the appeal
process in land matters as provided for under S.32 of the LCCA.
Consequently LC.II Courts no longer have jurisdiction in land matters as
courts of first instance.

However Read and Compare with the case of Dima DomnicPoro Vs

Inyani & Anor (CIVIL APPEAL No. 0017 OF 2016) Justice Mubiru held
that at the time of these proceedings, the law in force was The Local
Council Courts Act, 2006 which under section 11 (1) provided as follows;
(1) Every suit shall be instituted in the first instance in a village local
council court if that court has jurisdiction in the matter……” That the
implication of that provision was that the proceedings ought to have
begun at the L.C.1 Court level. However, section 76A of The Land
Act (introduced by section 30 of The Land (Amendment) Act, 2004),
divested L.C. I Courts of primary jurisdiction over disputes in land,
providing instead that “the Parish or Ward Executive Committee Courts
shall be the courts of first instance in respect of land disputes.” That the
impact of that amendment was considered in BusingyeJamia v. Mwebaze
Abdu and another, H. C. Civil Revision No. 33 of 2011, which was cited
with approval by the Court of Appeal in NalongoBurashe v. Kekitiibwa, C.
A. Civil Appeal No. 89 of 2011 where it was held that as a result of that
amendment, the L.C.II Court had original jurisdiction to hear and
determine disputes over land.
Jurisdiction of the Magistrates’ Courts:

See the distinction between pecuniary and geographical jurisdiction of

Magistrate’s courts; See also considerations in determining the court that
has jurisdiction.
In the case of Ozuu Brothers Enterprises vs. Ayikoru Milka
H.C.C.Revision No. 2 of 2016 Justice Mubiru stated that the subject
matter civil jurisdiction of Magistrate Courts is conferred by s. 208 of the
MCA Cap 16 which provides as follows;

‘Every magistrate’s court shall, subject to this Act, have jurisdiction to try
all suits of a civil nature excepting suits of which its cognizance is either
expressly or impliedly barred; but every suit instituted in a magistrate’s
court shall be instituted in the court of the lowest grade competent to try
and determine it. ‘ That the import of this provision is that the civil
jurisdiction of Magistrate Courts is all embracing except to the extent it is
excluded by an express provision of law or impliedly by such a provision.
Magistrate courts have no authority to preside over cases where their
jurisdiction is explicitly or implicitly barred [by statute]. They have
inherent jurisdiction to hear any civil matter unless it is expressly or
impliedly excluded from their jurisdiction. This general rule is subject to
various limitations found in sections 207, 212-215 MCA relating to the
nature, value, or the locality of the subject matter, the residence of the
defendant, and so forth.

That as regards the jurisdiction of District Labour officers and Magistrate’s

courts in civil matters relating to employment disputes the following can
be deduced,

i) In case of an employment dispute which does not relate to

enforcement of any rights under the Employment Act, 2006, the
remedy lies only in the Magistrate’s Courts.
ii) In case of an employment dispute arising out of a right or liability
under the general or common law and not under the Employment
Act, 2006, the remedy lies only in the Magistrate’s Courts
iii) In case of an Employment dispute arising exclusively out of a
right or liability under the Employment Act, 2006, and not the
general or common law, the jurisdiction of the Magistrate’s court
is concurrent and alternative to that of the District Labour
Officers, leaving it to the election of the plaintiff concerned to
choose his or her remedy for the relief which is competent to be
granted in a particular remedy available from either forum
iv) In case of an employment dispute arising out of a right or liability
under the Employment Act, 2006, as well as the general or
common law the remedy lies only in the Magistrate’s Courts.

Pecuniary Jurisdiction of the Magistrates’ Courts:

MCA as amended limits the pecuniary jurisdiction of Magistrates courts to

matters whose pecuniary value does not exceed 50m/= for a Chief
Magistrate, 20/= for Grade 1 Magistrate and 500,000/= for Grade II
Magistrate. See s. 207 (1) a-c
In the case of National Medical Stores Vs Penjuines Ltd HCT - 00 -
CC - CA – 29, the issues for determination was; whether the trial
Magistrate had powers to award damages and interest over and above the
pecuniary jurisdiction, and secondly, whether the damages awarded by
the Magistrate were excessive. Justice Geoffrey Kiryabwire first
considered whether the Magistrate, considering the subject matter of the
suit, had the jurisdiction to try the suit in the first place. That the principle
of law is that jurisdiction is a creature of statute. In the case of BAKU
RAPHAEL OBUDRA & ANOR V AG (SCCA No. 1 of 2005), the Supreme
Court found that courts are established directly or indirectly by the
constitution and that there respective jurisdictions are accordingly derived
from the constitution or other laws made under the authority of the
constitution. Furthermore, in the case of ATHANANSIAS KIVUMBI V
HON. EMMANUEL PINTO (Const Pet No.5 of 1998), the court found that
a court can not confer jurisdiction upon itself and where a court that has
no jurisdiction entertains the matter, any proceedings arising there from
are a nullity. That Section 207(1) (b) MCA [as amended by Act No. 7 of
2007] provides for the pecuniary jurisdiction of a Magistrate Grade 1 as
follows; “(1) Subject to this section and any other written law, the
jurisdiction of magistrates presiding over magistrates courts for the trial
and determination of causes and matters of a civil nature shall be as
follows—
(b) a magistrate grade I shall have jurisdiction where the value of the
subject matter does not exceed twenty million shillings;” In addition to
this, S. 4 of the Civil Procedure Act (Cap 71) provides as follows;
“Pecuniary jurisdiction. Except insofar as is otherwise expressly provided,
nothing in this Act shall operate to give any court jurisdiction over suits
the amount or value of the subject matter of which exceeds the pecuniary
limits, if any, of its ordinary jurisdiction.”

That the general damages were not quantified and therefore, could not be
used as a basis for calculating the value of the subject matter. The value
of the subject matter as noted in the plaint was the sum of Ushs
13,914,088/= which fell within the pecuniary jurisdiction of the Magistrate
Grade one. That the trial magistrate had the jurisdiction to entertain the
suit. What was left for determination was whether the award made by the
Magistrate was in excess of his pecuniary jurisdiction. That the magistrate
made the following orders in the judgment; Special damages of Ushs
13,914,088/=,…. general damages of Ushs 25,000,000/= would
suffice, Interest rate of 25% per annum on (a) above from 25 th October
2007 till payment in full is awarded, Interest rate of 25% per annum on (b)
above from 25th October 2007 till payment in full is awarded, Costs of the
suit to be paid by the defendant to the plaintiff, Ushs 200,000/= being
security for costs paid in MA No. 63 of 2010 to be refunded to the
representative of the plaintiff.”

That it is a settled principle of law that costs are not considered in

determining the pecuniary jurisdiction (ABBEY SEMAKULA v. ELDAD
RUBARENZYE [1996] 2 KALR 22). With regard to damages on the other
hand, the law is that a magistrate cannot award damages over and above
the pecuniary jurisdiction. In the case of JOSEPH KALINGAMIRE V.
GODFREY MUGULUSI [2003] KALR 408, at 410, Musoke-Kibuuka
J found as follows,“It follows, therefore, that when a Grade one magistrate
makes an order awarding general damages the sum of which exceeds the
monetary jurisdiction of Ushs 2,000,000/= (now Ushs 20,000,000/=) set
by the law in S. 219 of the Magistrate’s Court’s Act 1970 (now S. 207(1)
(b) MCA as amended by Act No. 7 of 2007), such magistrate would be
exercising jurisdiction not vested in him.” That the learned Judge further
found that, “In MUBIRU & ORS V KAYIWA (1979) HCB 212 (CA), the
Court of Appeal of Uganda held that, “an order made without jurisdiction
is a nullity”. In the instant case, since the order of the trial magistrate
awarding general damages in the sum of Ushs 2, 400,000/= to the
plaintiff was made without appropriate jurisdiction. It was a nullity ab-
initio.” That basing on the authority, the order of the trial magistrate
awarding general damages of Ushs 25,000,000/= in excess of the
pecuniary jurisdiction of a grade one magistrate was erroneous in law and,
is a nullity.

In the case of Koboko District Local Government v Okujjo

MISCELLANEOUS CIVIL APPLICATION No. 0001 OF 2016, the
contention was that the Magistrate Grade One exercised a jurisdiction not
vested in it in law or acted in the exercise of its jurisdiction illegally or with
material irregularity or injustice when it entered a consent judgment
awarding a sum of shs. 85,000,000/= which is beyond its pecuniary limit
of shs. 20,000,000/= set by s 207(1) (b) of The Magistrates Courts Act (as
amended by Act No.7 of 2007), which provides for the pecuniary
jurisdiction of a Magistrate Grade One Court. The question to be
determined in this application was whether having been sanctioned by
a court and become a determination of the controversy which has
the force and effect of a judgment, a contract in which parties
make reciprocal concessions in order to resolve their differences
and therefore avoid litigation or where litigation has already
commenced, bring it to an end, is subject to the rules of
pecuniary jurisdiction of courts and therefore can be challenged
for lack of such jurisdiction. This has to be determined within the
context of a revision. Justice Stephen Mubiru stated that One of
the “policies of court” is the question of jurisdiction that it is at once
fundamental and over-arching as far as any judicial proceeding is
concerned. That Jurisdiction is the first test in the legal authority of a court
and its absence disqualifies the court from exercising any of its
powers. Jurisdiction means and includes any authority conferred by the
law upon the court to decide or adjudicate any dispute between the
parties or pass judgment or order. A court cannot entertain a cause which
it has no jurisdiction to adjudicate upon. That Jurisdiction must exist at the
time of filing suit or latest at the commencement of hearing. It cannot be
conferred at the time of delivery of judgment for Jurisdiction does not
operate retroactively. That whereas the general pecuniary jurisdiction of a
Magistrate Grade One court is limited to shs 20,000,000/= set by s 207(1)
(b) of The Magistrates Courts Act (as amended by Act No.7 of 2007), by
virtue of s 207 (2), the court has unlimited jurisdiction with regard to
disputes relating to a cause or matter of a civil nature governed only by
civil customary law. That where there is a high likelihood that general
damages, when assessed may be beyond the pecuniary jurisdiction of the
magistrate’s court, the correct procedure is to invoke s. 218 (1) (b) (i)
of The Magistrates Courts Act, and / or s 18 (1) (b) (i) of The Civil
Procedure Act and apply for the suit to be transferred to a court with
competent jurisdiction, otherwise if the court proceeds to award damages
beyond its pecuniary jurisdiction, the award will be a nullity. That
Jurisdiction cannot be conferred on court by consent of the parties and
any waiver on their part, cannot make up for the lack of jurisdiction (See
Assanard and Sons (U) Ltd v East African Records Ltd [1959] EA
360). In Edith NantumbweKizito and three others v Miriam Kuteesa C.A.
Civil Application No. 294 of 2013, the Court of Appeal cited the following
authorities with approval; The Canadian case of Manitoba Windmills v
Vigier [1909] 18 Man LR.427, where it was held that; ‘’It is not
competent for parties to a contract to agree to confer jurisdiction upon
court of any judicial division other than one in which under statute any
action arising out of a breach of the contract may be brought, and if such
action is brought in any other court the judge should refuse to try it on
the ground of want of jurisdiction” And the decision of Bramwell
LJ in Foster vs Usher Wood [1877] 3 Ex D1 in which he stated as
follows: ‘It is argued that consent has waived the objection. I do not
understand what is meant by waiving the objection. In this case the
Registrar had no jurisdiction to make the order or try the action in a
country court. The parties cannot by consent confer a jurisdiction which
does not exist’. It was also held by Lord Asher MR in Re, Aylmer Exp.
Bischoftsheim [1887] 20 QB 258 that; The consent of parties cannot
give the court jurisdiction which it does not otherwise possess. The English
Court of Appeal in Hinde v. Hinde [1953] 1 ALL ER. 171 held as follows:-
‘The parties could not by consent give the court a jurisdiction which it did
not otherwise possess while the Court would recognize a consensual
arrangement between the parties it would not lend its process to enforce
an order that which was drawn up in the form of an order but which in
reality was the statement of an agreement in terms which the court would
have no jurisdiction to impose.’ Court finally held that the Grade One
Magistrate’s Court at Koboko exercised its jurisdiction irregularly and
illegally when it allowed the parties to enter a consent judgment which
was beyond its pecuniary jurisdiction rendering that consent judgment to
be an agreement contrary to the policy of court. The judgment and decree
was a nullity and are therefore set aside.
 Chief Magistrate to have unlimited jurisdiction in disputes relating to
conversion, damage to property and trespass see s. 207 (1) (a).

 In all causes or matters governed only by civil customary law, the

jurisdiction of the Chief Magistrate and Magistrate Grade 1 shall be
unlimited Read s.207 (2) MCA as amended.
 See Hierarchy in terms of filing suits in respective magistrate’s courts;
read s.208 MCA. Read also The Transfer of Jurisdiction to
Magistrates Courts Circular No. 1/2007

Geographical Jurisdiction of the Magistrates’ Courts:

Geographical jurisdiction is dependent on the subject matter of the suit;

Read; sections 11 to 15 of the CPA and S. 212 to 215 of the MCA; Read;
The Magistrate’s Courts (Magisterial Areas) Instrument 2017
In the case of Remo v Juma HC CIVIL REVISION No. 0006 OF 2015;
Justice Mubiru stated that local jurisdiction is the power of the court with
reference to the territory within which it is to be exercised. That the
territorial jurisdiction of magistrates’ courts is delimited by way of
statutory instruments issued from time to time by the Minister of Justice,
after consultation with the Chief Justice, in accordance with section 2
of The Magistrates Courts Act. That according to section 6 of The
Magistrates Courts Act, every magistrate appointed under the Act is
deemed to have been appointed to, and have jurisdiction in, each and
every magisterial area but may be assigned to any particular magisterial
area or to a part of any magisterial area by the Chief Justice. And
according to section 3 of The Magistrates Courts Act, within each
magisterial area, magistrates’ courts are designated and are known as the
magistrate’s court for the area in respect of which they have jurisdiction.
That the purpose of these provisions is to ensure that the authority of the
various magistrates is limited to certain well-defined territory. That a close
scrutiny of the provisions relating to geographical jurisdiction reveals that
local jurisdiction is vested in the court and not in the magistrates. As
such, when the magistrate is transferred, no transfer of territorial
jurisdiction results since this continues to be vested in the court by virtue
of the power of defining or apportioning the territory over which a
particular magistrate exercises jurisdiction vested in the Chief Justice.
That it is the practice that judicial officers transferred, who at the time of
transfer had cases pending before them where the proceedings had
advanced to that level, are expected to carry the files with them to their
newly assigned territorial jurisdiction and write the judgments. But when
the judgment is ready, it is delivered not at the court of their new
assignment, but rather the court where the evidence was recorded by the
magistrate who wrote the judgment or by the successor magistrate. All
subsequent proceedings are undertaken by that court within whose local
jurisdiction the suit was filed and tried. That this practice is consistent
with section 7 (1) (a) of The Magistrates Courts Act which requires a
magistrate’s court to sit “at any place within the local limits of its
jurisdiction.” If a magistrate’s court is to sit at any place outside the local
limits of its jurisdiction, then section 7 (1) (b) of The Magistrates Courts
Act requires that written authorization of the Chief Justice be sought and
that authorization will be given only if it appears to the Chief Justice that
the interests of justice so require, in which case the proceedings may be
held in such building as the Chief Justice may, from time to time, assign as
the courthouse. That the alternative is for invoking the powers of the
Chief Magistrate under section 171 of The Magistrates Courts Act (in
respect of criminal cases) or that of the High Court under section 128
of The Magistrates Courts Act (in respect of civil suits) to have the suit
transferred from one court to the other. When any of these provisions is
invoked, territorial or local competency will not be a prerequisite,
necessary or required of the court to which the suit is transferred. That in
absence of written authorization of the Chief Justice or transfer by the
Chief Magistrate or the High Court, a magistrates’ court seized with
jurisdiction over a matter cannot transfer any aspect of the disposition of
the matter, including the delivery of judgment and post judgment
proceedings, from one local jurisdiction to another, unless authorized to
do so by law or in accordance with the law, such as where a decree is sent
to another court for execution under Order 22 rules 4 to 7 of The Civil
Procedure Rules. Otherwise, a Court without local jurisdiction is not
competent to dispose of any aspect of the suit. To have jurisdiction is to
have the power to inquire into the fact, to apply the law and to declare the
relief in a regular course of a judicial proceeding. Jurisdiction does not in
any way depend upon the regularity of its exercise or upon the
rightfulness of the decisions made. The authority to decide a case and not
the decision rendered therein is what makes up jurisdiction. Therefore, a
court taking cognisance of any aspect of the suit, in violation of the law
governing territorial jurisdiction and transfer of decrees for execution, is
an abuse of process. That providing for the jurisdiction of courts on the
basis geographical location is meant to give structure to the system of
justice by ensuring that there is orderly disposal of cases. It also helps to
create efficiency within the system by reducing conflicting cognisance of
cases by different courts at the same time. It is for this reason that every
suit should ordinarily be instituted in the Court of the lowest grade
competent to try it as required by section 208 of The Magistrates Courts
Act. This explains why in decisions such as Pastoli v Kabale District Local
Government Council and others [2008] 2 E.A 300, Kagenyi v Musiramo
and another [1968] E.A.43it has been decided that an order of court made
without jurisdiction is a nullity and that an order for the transfer of a suit
from one court to another cannot be made unless the suit has been in the
first instance brought to a court which has jurisdiction to try it. Therefore,
that a suit instituted in a court without jurisdiction is incompetent and
cannot be transferred to the High Court for hearing and determination.
These decisions though have all addressed the pecuniary rather than the
local limits of the jurisdiction of courts. That the four aspects of civil
jurisdiction; the nature and pecuniary value of the subject matter,
personal, temporal, and territorial are of equal importance. A court that
lacks one lacks jurisdiction and competence entirely to try the suit,
irrespective of whether or not it is operating within the same Chief
Magisterial area. Proceedings undertaken by a court without jurisdiction
are a nullity, be it subject matter (rationemateriae), personal (ratione
personae), temporal (rationetemporis), or territorial (ratione loci).

Jurisdiction of the High Court

 Jurisdiction derived from Article 139(1) of the constitution. High court
vested with unlimited original jurisdiction in all civil and criminal
matters subject to the constitution. Read; Larco Concrete Products
Ltd vs Transair Ltd (1988 – 90) HCB 80; The High court in its civil
and criminal jurisdiction is vested with power over all persons and over
all causes and matters in Uganda criminal or civil and in spite of the
contract being made in England, that alone could not oust the
jurisdiction of the high court unless it has been stipulated in the
agreement to that effect in no uncertain terms.
 The constitution read together with the Judicature Act S.14 (1) grant
the High court original jurisdiction in all matters. In the absence of a
provision in the contrary, the High court has unlimited jurisdiction;
Eastern and Southen African Trade and Anor vs Hassan
Basajjabalaba and Anor HCT -00-CC-CS – 0512 – 2006;
 The High Court can’t dismiss a matter before it merely because other
lower Magistrates courts may have jurisdiction to entertain it; See
consequences; Read P. Munyagwa Vs Lucy Kamujanduzi
[1972] EA, 332 (U).[1972] HCB 117. In this case a suit which could
have been commenced in a magistrate court was commenced in the
High Court. Counsel for the defendant objected that the suit was bad
on ground of jurisdiction. Held: That the High Court is a court of
unlimited jurisdiction, which could entertain any action and this, does
not render the suit defective. That all what the plaintiff would suffer
was to be awarded costs at the rate of the lower court scale.

 NB; as general rule: Actions must be instituted in lower courts

otherwise a party who files the suit in a higher court, where a lower
court has jurisdiction, the party would stand the risk of a low award of
costs.
In the case of Francis s/o Mwijage V Boniface s/o Kabalemeza Civil
Appeal 84-68(HCD) 341; the Plaintiff sued the defendant in District
Court for refund of bride price allegedly paid by him to defendant. The
trial court found that no bride price had been paid and dismissed the suit.
On appeal, a question arose as to the jurisdiction of the District Count to
try the suit. Court held that the law applicable to the suit is customary
law, which under section 14 of the Magistrates Court Act, Cap 537, is
justifiable in Primary Courts. Under section 13 of the Civil Procedure Code,
every suit shall be instituted in the court of the lowest grade competent to
try it, which was, in this case, a primary court. Section 13, however, is a
rule of procedure, not of jurisdiction [citing Mulla, 1934 10 th Edition, pp.98-
100], and does not deprive higher courts of jurisdiction which they already
possess. Further, under section 35(2) of the Magistrates Courts Act,
District courts have limited original jurisdiction in proceedings save where
it is conferred exclusively on some other court; and section 14 of the Act
does not appear to give primary district courts exclusive jurisdiction over
suits involving customary law. Thus the district court had jurisdiction to try
the suit.

Read and compare s. 208 MCA

 The Jurisdiction of the High Court in Tax Disputes

The proper procedure is that all tax disputes must first be lodged with the
Tax Appeals Tribunals and only taken before the High Court on appeal.

In the case of Uganda Revenue Authority (URA) vs. Rabbo

Enterprises (U) Ltd & Anor SCCA No. 12 of 2004 the Supreme stated
that Article 139 of the constitution provides that the high court shall
subject to the provisions of the constitution, have unlimited jurisdiction.
That on the other hand Article 152(3) of the constitution provides that
parliament shall make laws to establish tax tribunals for the purposes of
settling tax disputes. Pursuant to the constitutional provision, parliament
enacted the Tax Appeals Tribunals Act cap 354. That the High court
exercises its unlimited jurisdiction subject to other provisions of the
constitution. One of such provision envisaged in Art 139(1) is Art 152(3) of
the constitution which provides for Tax Appeals Tribunal. That it is the
Constitution itself which, through Article 152(3) limit the original
jurisdiction of the High court and empowered the Tribunal with
jurisdiction. The powers of the High court are subject to the constitution.
That the proper procedure therefore is that all tax disputes must first be
lodged with the Tax Appeals Tribunals and only taken before the High
Court on appeal. That in the case of The Commissioner General
Uganda Revenue Authority vs. Meera Investments, SCCA No. 22 of
2007 Kanyeihamba JSC held inter alia that the case was about the conflict
between the provisions of the Income Tax Act and the Value Added Tax
Act, and that their interpretation and nature of application is a matter for
a court of law and not for the parties or a tax tribunal. That having found
that the case was not concerned with the mere assessment, demand and
refusal to pay tax but with the interpretation of the relationship between
the Uganda Revenue Authority Act and the Uganda Investment Act, the
need to first present the matter to the Tax Tribunal did not arise. That the
holding of the learned justice of the supreme Court that Meera dispute
properly belongs to the jurisdiction of the High court and not of a tax
tribunal, and that Art 139(1) of the Constitution which gives the High
Court unlimited original jurisdiction in all matters remain superior and
mandatory, must therefore be understood in the context of the case.
Consequently that the decision in Meera Investment is distinguishable
from the matter before them since the matter in issue before them
constituted a tax matter / dispute.
Professor Dr. Lilian Tibatemwa –Ekirikubinza further took note that in
Meera Investments, Kanyeihamba JSC did not discuss the meaning of the
phrase ‘subject to the provisions of the constitution’ found in Art. 139(1)
of the constitution, a phrase that places the powers of the High court
within a wider context of the constitution as an entire document. That
further still, the learned justice did not address his mind to the cardinal
rule that while adjudicating matters touching the constitution, a court
must read the constitution as an integrated whole with no particular
provision destroying the other. That Art. 139 deals with the power of the
High court to resolve disputes and so does Art. 152(3). That for the two
identified lapses, Meera decision was made per incurium and not bound to
follow the Meera decision. That she was obliged to proceed under Art
132(4) of the constitution which provides that the supreme court may,
while treating its own previous decisions as normally binding, depart from
a previous decision when it appears to it right to do so.

Unlimited Original Jurisdiction of the High Court in Employment

Disputes
The High Court has unlimited original jurisdiction in employment matters.
In the case of 201 Former Employees of G4S Security Services
Uganda Ltd vs. G4S Security Services Uganda Ltd SCCA No.
18/2010 the Supreme Court held that s.93(1) of the Employment Act
clearly intended to oust jurisdiction of the ordinary civil courts in Uganda
by ensuring that employment matters are only handled by labour officers
and industrial court. That it is evident that these sections conflict with Art.
139(1) of the constitution in so far as they limit the unlimited original
jurisdiction of the High Court to hear employment matters as a court of
first instance. That Art. 139(1) of the constitution confers on the High
Court unlimited jurisdiction and the position is reiterated in section 14(1)
of the Judicature Act.

In the case of Hilda Musinguzi vs. Stanbic Bank (U) Ltd HCCS No.
124/2008, the issue was whether the High court has original jurisdiction
in employment matters in light of the provisions of the Employment Act
2006. Court held that the unlimited original jurisdiction of the High
Court granted under Article 139(1) of the Constitution cannot be ousted
by granting of jurisdiction by a statute to another body.
In the case of Uganda Broadcasting Corporation v Kamukama
(MISC. APPLICATION NO. 638 OF 2014) Court held that it is trite law
that jurisdiction of the High Court is exercised in conformity with a written
law as provided in the Judicature Act. Therefore, by parliament enacting
other subordinate legislation conferring jurisdiction to different forum to
adjudicate over disputes does not in any way diminish the fact that the
High Court has unlimited jurisdiction. Section 93(1) of the Employment Act
2006 provides that:-“Except where the contrary is expressly provided for
by this or any other Act, the only remedy available to a person who claims
an infringement of any of the rights granted under this Act shall be by
way of complaint to a Labour Officer”. Section 94 of the same Act provides
for appeals as follows: “A party who is dissatisfied with a decision of the
Labour Officer on a complaint made under this Act may appeal to the
Industrial Court in accordance with the section. An appeal under this
section shall lie on the question of law and with leave of the Industrial
Court on the question of fact forming part of the decision of the Labour
Officer”.The import of these provisions is not that this court has no
jurisdiction to entertain the respondent’s claim. This is because the
Constitution of Uganda confers unlimited jurisdiction on the high court in
all matters as provided in article 139 (1) of the constitution. Section 93 of
the Employment Act which gives jurisdiction to the Labour Officer does
not in any way oust the unlimited original jurisdiction of the High
Court. This is the position enunciated in the case of M/s Rabo Enterprises
(U) Ltd and M/s Elgon Hardware Ltd Vs Commissioner General Uganda
Revenue Authority CA No. 51 of 2003wherein the lead judgment of Okello
J. A (as he then was) held inter alia that “An Act of Parliament cannot oust
the jurisdiction of the High Court except by an amendment of the
Constitution”. In the same way, the conferment of the appellate
jurisdiction on to the Industrial Court does not in any way affect the
original jurisdiction of the High Court. The same applies to the conferment
of jurisdiction on the Labour Officer in regard to Labour disputes by the
Employment Act. That much as this court has unlimited jurisdiction, if one
looks at the intention of parliament in conferring jurisdiction on the Labour
officer and the creation and operationalisation of the Industrial Court with
appellate jurisdiction it would be prudent if these two institutions are put
to good use. This is our current court policy. Avoiding these institutions
would be defeating the intentions of the legislature since the Industrial
Court is now operational. That it is proper to refer the matter to the
Labour Officer for appropriate handling.

Unlimited Original Jurisdiction of the High Court in Disputes Subject to

Arbitration Clauses

Provisions of the Arbitration and conciliation Act requiring matters subject

to arbitration clauses do not oust the jurisdiction of the High Court; Read
Pheobe Mugabi V Print Pak (U) Ltd (1994) 1 KALR 29; Kayondo V
The Cooperative Bank Ltd CA No. 19/91
However, the High Court may refer the matter to arbitration where there
is a valid, operative and enforceable arbitration clause if a proper
application is made by a party thereto;
In the case of Power and City Contractors Ltd v LTL Project (PVT)
Ltd HCMA 62 of 2011 an objection was raised on ground that the parties
had by agreement undertaken to refer disputes arising out of their
contractual obligation to arbitration and that as such court is enjoined by
law to refer the matter to arbitration in accordance with the parties
agreement. Court held that arbitration is governed by the Arbitration and
Conciliation Act 2000. That section 41of the Act presupposes that before
the court can refer a dispute to arbitration it must be ‘seized of an action’.
That the Court has jurisdiction to receive a suit even if the agreement
binding the parties has an arbitration clause, that this is what can enable
it refer the matter to arbitration unless valid exceptions exist. That the
fact that the clause had been put into the consortium agreement in clear
and un ambiguous terms and the parties expressly agreed to submit
disputes arising out of their contract to arbitration, for all intents and
purposes arbitration was recognized as an effective means of solving all
the disputes out of the binding contract and the clause is binding on the
parties to the contract. That it was held in National Social Security Fund
and WH. Ssentongo T/A Ssentoogo & Partners v Alcon International Ltd CA
No. 02 of 2008 that;- ‘An arbitration clause a contract has an enduring
and special effect, that if parties decide to adopt a different resolution
mechanism for a particular dispute that arise under a contract, the
arbitration continues in force and is not thereby totally repudiated unless
there is a solid reason for doing so. Courts will always refer a dispute to
arbitration where there is an arbitration clause in a contract.’ That
according to Russell on Arbitration 22 nd Edit Sweet & Maxwell paragraph 2-
119 page 80. ‘…a party may mardon its right to arbitrate, for Example by
delay or inaction, or by commencing court proceedings in breach of an
arbitration agreement. However the courts are slow to find such
repudiation or abandonment without very clear evidence of an intention
to abandon the right to arbitrate together with reliance by the other party
to its detriment. Even if the right to arbitration a particular dispute has
been abandoned, that does not necessarily mean that the arbitration
agreement itself has been abandoned.’ That by incorporating an
arbitration clause in their contract both parties hereto for all intents and
purposes recognized arbitration as effective means of solving any dispute
that could arise. That reference of dispute to arbitration was not an
optional clause but a binding clause.

In the case of Fulgencious Munghereza V Price Water House

Coopers Africa Central SCCA No. 18/2002 [1997-2000] UCLR 45
Jurisdiction of the High Court was contested asserting that the issue in
dispute was subject to a mediation and arbitration under clause 29 of the
Agreement for which procedure the respondent intended to seek stay of
proceedings in the suit. The issue was whether the appellant came within
the exceptions to section 41of the Arbitration and Conciliation Act 2000.
Court held that there is nothing to stop the parties referring the matter to
 mediation if there is a chance of it being resolved amicably. That the
appellant was a party to the frame work agreement and he was entitled
as a member to have this dispute resolved in accordance with the
framework agreement.

In the case of EADB V Ziwa Hotcultural Exporters Ltd [1997-2000]

UCLR 247; held that section 6 of the Arbitration and Conciliation Act,
provides for mandatory reference to arbitration of matters before court
which are subject to an arbitration agreement; where court is satisfied
that the arbitration agreement is valid, operative and capable of being
performed, it may exercise its discretion and refer the matter to
arbitration.

NB; The High Court has inherent power to make such orders as may be
necessary for the ends of justice or to prevent abuse of the process of the
court; Aya Investments (U) Ltd V M/S Kibeedi & Co. Advocates
[2008] HCB 130

The Registrars ( including Deputy Registrars/ assistant registrars of the

High court also have jurisdiction over specified matters like specified
interlocutory applications; Read; Gomil (U) ltd v Latax (u) Ltd 1990 –
91 KALR 194 on whether a High court registrar or a district registrar can
entertain interlocutory application such as application to grant an interim
injunction.

 Read; Jurisdiction of Registrars of the High court; O.50 CPRs

 Judicial Powers of Registrars (Practice Direction No. No.1 of
2002;
 Read; The High Court (Circuits) Instrument No.20/2004
 Read; Dairy Corporation V Opio [2001-2005] HCB 113 for the
other functions of registrars

Jurisdiction of the High Court in Cross-Border Transaction or matters with

an international elements;

 The question that arises is whether the High Court has jurisdiction in
matters having an international element.
Section 12 CPA provides for institution of suits where the subject matter
situate and section 15 provides for institution of suits where the defendant
reside or cause of action arose.

In the case of Kasoma vs Sembatya CACA 78/2011 the respondent

who worked in Japan bought vehicles there but later deported to Uganda.
Later found that the vehicles had been disposed off and changed the
frame who reported to Interpol. The vehicles were impounded by police in
possession of the appellant who contended to have purchased them in
Japan. On appeal the ground was whether the learned trial judge erred in
law and fact in holding that there was a subsequent failure to justice
because of the matter being tried and heard in Uganda outside the
jurisdiction of cause of action. Court of appeal held that the appeal arose
in a chief magistrates court and appropriate to refer to the law that
governs magistrate courts. Section 212 suits to be instituted where the
subject matter situate and section 215 other suits to be instituted where
the defendant reside or cause of action arose. That in the instant case, the
cars which are the suit property where in Uganda by the time the suit was
filed in court, both defendant were living in Uganda within the jurisdiction
of court and the court was justified in the finding that the trial court had
jurisdiction to resolve the dispute brought before the court.

In the case of Sebagala & Sons Electric Centre Ltd V Kenya

National Shipping Lines Ltd HCCS No. 431 of 1999 [1997-2001]
UCLR 388 the issue was whether court had jurisdiction to entertain a
matter involving the defendant which operated business outside Uganda.
Held; that following the provisions of s.15 (3) of the Civil Procedure Act,
the question of whether or not a court has jurisdiction in a matter arising
from the contract is dependent on where the cause of action arose in
terms of where the contract was made, or where it was performed and
completed, and where payment was effected. In this case, completion of
the contract was to be effected in Kampala hence the court had
jurisdiction. That secondly, the defendant having filed a defence
submitted to the jurisdiction of the court and could not dispute its
jurisdiction at the hearing.

Read; Larco Concrete Products Ltd vs Transair Ltd (1988 – 90)

HCB 80; Eastern and Southen African Trade and Anor vs Hassan
Basajjabalaba and Anor HCT -00-CC-CS – 0512 – 2006;

Jurisdiction of the High Court in Transactions with specific provisions on

jurisdiction.

A clause to submit to the exclusive jurisdiction of the foreign court is

enforceable by the High Court of Uganda. However, the High Court does
not lose its jurisdiction to entertain the action if the Plaintiff can show
some just cause why the proceedings should not be stayed or dismissed.

In the case of Transtrac Ltd vs Damco Logistics (U) Ltd HCMA No.
394/2010 the applicant objected to jurisdiction and sought a declaration
that the High Court had no jurisdiction over him in respect of the subject
matter of the claim for relief or remedy sought by the respondent. In that
case the governing clause provided as that the agreement shall be
governed, construed and enforced in accordance with English law and the
parties submit to the exclusive jurisdiction of the English courts. Justice
Madrama considered the case of Uganda Telecom verses Rodrigo Chaco
t/a Andes Alps Trading in HCMA 337 of 2008 in which Honourable Lady
Justice Stella Arach, Amoko, judge of the High Court as she then was, held
that the clause which provided that: "this agreement shall be construed in
accordance with English law and subject to the exclusive jurisdiction of
the English courts", was clear and certain. Under that clause the parties
had not only chosen English law to govern the agreement but
unequivocally submitted to the exclusive jurisdiction of the English courts.
She held that the High Court had no jurisdiction to adjudicate in the
dispute, the parties having chosen the exclusive jurisdiction of the English
courts. She further held that the fact that the agreement was negotiated,
performed and possibly breached in Uganda was immaterial. She held
that the clause ousted the jurisdiction of the High Court. The judge agreed
with the holding of the judge to the extent that the parties agreed to
submit to the jurisdiction of the English courts and to refer their disputes
for adjudication in that forum but disagreed that the contract ousted the
jurisdiction of the court. His decision was based on the construction of
article 139 clause 1 of the constitution which confers unlimited original
jurisdiction in all matters on the High Court. Furthermore, the unlimited
original jurisdiction is reproduced under section 14 of the Judicature Act.
Furthermore, he felt bound by the decision of the Court of Appeal in David
Kyadondo versus Cooperative Bank civil appeal number 19 of 1991 where
it was held that the Cooperative Societies Act and the section that under
which it was provided that all disputes shall be referred to arbitration did
not oust the jurisdiction of the High Court. Consequently, it his finding that
the court has jurisdiction to interpret and enforce the contract of the
parties in a similar way as it does with the provisions for the parties to
submit their dispute to arbitration. In other words, the court can insist that
the parties should abide by the contract unless the Plaintiff can justify
filing the action in the High Court.

In the case of Rapid Shipping and Freight Uganda Ltd and another
versus Copy Lines Ltd HCMA 216 of 2012 the applicants objected to
jurisdiction. In overruling the objection, the court held that the clause
providing for the submission of any dispute to the English courts was
contained in the bill of lading which was a unilateral document signed by
the ship owner or master or other agent of the ship owner which states
that certain specified goods have been shipped in a particular ship and
which purports to set out the terms on which the goods have been
delivered to and received by the ship. It was held that there was no
evidence of the consensus to submit any dispute relating to the carriage
of goods to the exclusive jurisdiction of the English courts and not other
courts. The court therefore held that in the absence of evidence of
consensus between the parties, the objection to jurisdiction was overruled
for being premature.

In the case of Huadar Guangdong Chinese Co. Ltd v Damco

Logistics Uganda Ltd HCCS NO 4 and 5 of 2012 concerned contract
between the plaintiff and defendant for the transportation of goods from
Kampala to Hong Kong, Haiphong, China. Clause 54 (b) of the standard
trading conditions provides: "These conditions, and any claim or dispute
arising out of or in connection with the services in respect of services
provided anywhere else in the world, are subject to English law and the
exclusive jurisdiction of the English High Court of Justice in London." The
ruling arose from a preliminary objection to the Plaintiff's suit by the
Defendant ground that the High Court of Uganda has no jurisdiction to try
the suit. The issue was whether the High Court of Uganda has jurisdiction
in the matter? Justice Madrama held that the Plaintiff has not moved the
court justifying filing the action in Uganda. Further held that in cases of
arbitration clauses, the Arbitration and Conciliation Act gives grounds for
justifying the filing of an action in the High Court irrespective of the
arbitration clause and found the rationale useful and applicable to clauses
of the parties agreed to submit their dispute to the exclusive jurisdiction
of the foreign court. That section 5 of the Arbitration and Conciliation Act
permits the court not to refer the dispute to arbitration where the
agreement is null and void, in operative or incapable of been performed.
Secondly that it is not in fact any dispute between the parties with regard
to the matters agreed to be referred to arbitration. The Plaintiff must show
that the Defendant is using the clause to submit their disputes to the
exclusive jurisdiction of the foreign court as a means of avoiding liability.
In the absence of the above, the High Court will enforce the contract.

Jurisdiction of the High Court in Transactions where Defendants are

subject to Diplomatic Immunity

If a government or one of its departments goes into the market places of

the world and engages in straight forward commercial transactions, then
it is within the territorial jurisdiction of the courts of the foreign sovereign
and can’t claim immunity in respect of such transactions.

In the case of Wokuri v Kassam [2012] EWHC 105 (Ch) the claimant
worked for the applicant, who was the Deputy Head of Mission at the
Ugandan High Commission in London, as a chef and and domestic servant
and had made claims that the applicant had not issued her with an
employment contract and had failed to pay her salary in full. The
applicant alleged that the claimant was employed under an existing
contract when she worked for the applicant in Uganda and following a
previous hearing Newey J had directed that there be a hearing to
determine whether or not a valid contract had been signed. The applicant
then sought to stop that hearing by issuing an application to dismiss the
claims for want of jurisdiction on the grounds that the relationship "falls
within the Defendant's 'functions' as a 'member of the Ugandan mission'
in the UK" and therefore subject to diplomatic immunity. In this judgment
Newey J reviews the relevant provisions of the Diplomatic Privileges Act
1964 and the relevant authorities. He observes that while a diplomat may
have immunity even when they have moved to another post (as is the
case here) that immunity, following Swarna, "does not apply to actions
that pertain to [a diplomat's] household or personal life and that may
provide, at best, 'an indirect' rather than a 'direct ... benefit to' diplomatic
functions". He then dismisses the application largely because it was
agreed that the claimant had been employed in 1998 by the applicant,
before she was a diplomat, and therefore any contract could not have
been entered into "in the exercise of … functions as a member of" the
High Commission of Uganda to the United Kingdom". There was also no
evidence that the claimant's job changed on arrival in the UK.
Read Eddie Rodrigues V The British High Commission SCCA
NO.8/87; Read Ndibarekera V The United States of America HCCS
NO.786/97; Somali Democratic Republic v Treon SCCA No.6 of
1998; Manzur Alam V The Embassy of Saudi Arabia HCCS NO.402
OF 2002

Jurisdiction of the High Court in case of Conflict btn International law &
Municipal Law

The jurisdiction of the High Court extends only to the boundaries of

Uganda. The High Court should refrain from interpreting the provisions of
the international Acts for purposes of uniform application of the law in all
the Partner States.

In the case of Testimony Motors Ltd. Vs. Commissioner Customs

Uganda Revenue Authority (Civil Suit No. 04 Of 2011) ((Civil Suit
No. 04 Of 2011)) the issue was whether the matter was properly
before the High Court in terms of jurisdiction and forum. The plaintiff's
application sought to interpret the provisions of the East
African Community Customs Management Act 2004. Justice Madrama held
that the East African Community Customs Management Act, 2004, is
an Act of the East African Community and the Act is meant to apply
to all the Partner States of the East African Community and it takes
precedence over national laws. The East African Community Customs
Management Act, 2004 is for all intents and purposes a creature of
the East African Community Treaty and therefore part of international law.
Its provisions have to be uniformly applied across all the Partner States.
For that reason and in theory, the interpretation of its provisions by
the High Court of Uganda would if allowed affect the application of the law
for all the Partner States a proposition which is without jurisdiction. That
the High Court should refrain from interpreting the provisions of the
Act for purposes of uniform application of the law in all the Partner States
of the Community. The jurisdiction of the High Court extends only to the
boundaries of Uganda. The High Court of Kenya, Tanzania, or the courts
of Rwanda and Burundi may if different interpretations are permitted
come up with different interpretations of the same provisions. Though the
East African Community Customs Management Act, 2004 is an Act of
Parliament, it is just a domestication of International treaty Law for
application and enforcement by national agencies of Partner States in the
East African Community Treaty. That for purposes of consistency,
questions as to interpretation of the Act should be left to the organs of the
East African Community Treaty so that the enactment has a uniform
application. Obviously for purposes of enforcement, the High Court of
Uganda reads and interprets the East African Community Customs
Management Act 2004. However this interpretative jurisdiction does not
involve deciding questions involving controversy as to the proper meaning
of any particular provision which may be in dispute. The interpretation of
the High Court should be limited to questions of enforcement of the Act.
The rationale for this is obvious. The Act overrides domestic legislation in
case of conflict. Its provisions are therefore international or regional in
application. Its domestication by enactment by the National Parliament
does not change the character of the enactment as the East African
Community law.
The plaintiff was at liberty to refer the questions stated for
interpretation to the East African Court of Justice at Arusha.
Read Concorp International Ltd Versus Eastern & Southern Trade &
Development Bank SCCA No. 11/ 2009

Objections to Jurisdiction and Procedure

Read; O. 9.r 3(1) (g) CPRs
The Defendant wishing to object/ dispute to the Jurisdiction of court may
give his/her intention to defend the proceedings or apply within the time
limited for service of a defence to court.
In the case of Ozuu Brothers Enterprises vs. Ayikoru Milka
H.C.C.Revision No. 2 of 2016 Justice Mubiru stated that any objection
as to jurisdiction being so central to the authority of the court to
undertake proceedings in a case before it, must be raised at the earliest
opportunity so that the court does not engage in a futile exercise (see
Owners of the Motor Vessel ‘Lillian S’’ v Caltex Oil (Kenya) Ltd [1989] KLR
1). That any issue of jurisdiction has to be considered first so that in the
event of the court coming to the conclusion that it has no jurisdiction, the
exercise of going into the merits of the suit would be unnecessary.

That the procedure of raising an objection to the jurisdiction of court in

civil matters is provided for under O. 9 r 3 (1) CPR that a defendant who
wishes to dispute jurisdiction of the court in the proceedings shall give
notice of intention to defend the proceedings, within the time limited for
service of the defense, apply to the court for a declaration that in the
circumstances of the case the court has no jurisdiction over the defendant
in respect of the subject matter of the claim or relief or remedy sought in
the action or such other relief as may be appropriate and the application
shall be by summons in chambers. That it follows that instead of filing a
written statement of defense, the applicant should have instead filed
notice of intention to defend the proceedings and thereafter a chamber
summons supported by affidavit, within fifteen days of receipt of
summons to file a defense, seeking a declaration that in the
circumstances of the case the court had no jurisdiction over the defendant
in respect of the subject matter of the claim or relief or remedy sought in
the action. The consequence of this failure is found in O.9 r 3(6) CPR that
the filing of the defense by a defendant shall, unless the defense is
withdrawn by leave of the court be treated as submission by the
defendant to the jurisdiction of the court in the proceedings.

That O.9 r 3(6) CPR relates to challenges of competence (which is a

procedural aspect of jurisdiction) rather than subject matter, personal,
territorial or temporal jurisdiction (which is substantive jurisdiction). This is
because O.9 r 2 CPR provides that filing of a defense by the defendant is
not to be treated as a waiver by him or her of any irregularity in the
summons. Reading the two provisions together (i.e. O9 r 3(6) and O 9 R
2), the conclusion is inevitable that filling a defense in the circumstances
of this nature, is submission to the procedural rather than the substantive
jurisdiction of the Court. A party who files a defense in those
circumstances is not precluded from raising the issue of jurisdiction in the
defense or as a preliminary point of law. That while a litigant may submit
to a procedural jurisdiction, he or she cannot confer subject matter
jurisdiction on a court where the Constitution or a statute or any principle
of common law is to the effect that the court does not have jurisdiction

 Note; Where a defendant does not file a defence, it is deemed that

he/she excluded him/herself from court and has no locus standi before
the court; and cannot sustain any application in the proceedings. AG &
UCB V Westmont Land (Asia) Bhd & Others [1997-2001] UCLR
191

 The filing of a defence where the defendant has filed an application

under O.9 r. 3 is not treated as a submission to the jurisdiction unless
court orders so or dismisses the application. Mark Graves V Balton
(U) HCMA No.158 of 2008.

Effect of proceeding before a court with no jurisdiction;

It is settled law that a judgment of a court without jurisdiction is a nullity

and as such it is something which a person effected by it was entitled to
have it aside ex debits justitiae.
In the case of Ozuu Brothers Enterprises vs. Ayikoru Milka
H.C.C.Revision No. 2 of 2016 Justice Mubiru stated that a Court either
has the requisite jurisdiction or it does not. It is well settled principle of
law that the court cannot confer upon itself jurisdiction where there is
none and neither can the parties confer jurisdiction upon a court by
consent, either express or implied (e.g. by absence of objection at
appropriate time). A decree without jurisdiction whether it is pecuniary or
territorial or whether it is in respect of the subject matter of the action
strikes at the very authority of the court to pass any decree, is therefore a
nullity and may be questioned at any stage including execution or even in
collateral proceedings. It is such a defect which cannot be cured even by
consent of parties or failure to comply with the procedure for raising an
objection to the jurisdiction of courts in civil matters provided for under O.
9 r 3 (1) CPR. It is a fundamental principle that is also well established that
a decree passed by a court without jurisdiction is a nullity and that its
invalidity could set up whenever and wherever it is sought to be enforced
or relied upon, even at the stage of execution and even in collateral
proceedings. A defect in competence is extrinsic to adjudication, hence a
challenge to jurisdiction can be entertained at any stage of the
proceedings, at first instance, or on appeal even by way of revision sought
by any of the parties and even by the court itself suomotuto (on its own
motion), to prevent an obvious miscarriage of justice.
In the case of Stephen Mubiru vs. Annet Mubiru HC Revision Cause
No. 4 of 2012 an application was to set aside a decision of the
Magistrate Court Grade 1 on ground that the land was valued over Ugx.
280,000,000/-. Court held that the respondent’s failure to successfully
challenge the lower court’s jurisdiction did not and could not itself have
vested jurisdiction in the trial court which did not have the same. That
even if the trial magistrate had overruled the applicant on the matter, it
still would not have conferred jurisdiction on his court. That it is settled
law that a judgement of a court without jurisdiction is a nullity and
something which a person affected is entitled to have set aside ex debitis
judititial. See Karoli Mubiru & 21 Others V Edmond Kayiwa [1979] HCB
212; Peter Mugoya V James Gidudu & Anor [1991] HCB 63. That the
Principal Magistrate Grade 1 exercised jurisdiction not vested in him in
entertaining and delivering judgement, his judgement in respect of the
said case was therefore a nullity, set aside.

 Read; Mubiru & vs Kayiwa (1979) HCB 212. Also read; Byanyima
Winnie v Ngoma Ngime Civil Rev No. 9/2001

 That anything done by court without jurisdiction is a nullity. Read;

Makula International V Cardinal Nsubuga [1982] HCB;

 Jurisdiction is a creature of the constitution and statute and where a

matter is filed in a court that has no jurisdiction, it must be struck out.
Read; Sgt Kalemera Frank vs Uganda SCCA No. 18 /94;
Athanasius Kivumbi V Hon Emmanuel Pinto Constitutional
Petition No. 5 of 1997

 Note the distinction between a wrong court and a court that has no
jurisdiction;

Transfer and Withdrawal of Cases:

S. 18 CPA provides for transfer and withdrawal of cases. Read also s.

217 and 218 of the MCA; Power exercisable by the High Court;

 Considerations include; balance of convenience of the parties, the

expense involved, the interest of justice, the possibility of undue
hardship. See Matayo K. Kaboha V Abibu Bin Abdalla (1942) 6
ULR 121 (U);
 Cost or expense and witness are relevant considerations; In David
Kambugu V Zikalenga Misc. Appl 36/1995[1995] KALR 48;
Okello J held that the Plaintiff has a right to choose his court. The
expense which the plaintiff was likely to incur in transporting and
maintaining numerous public officers from Kampala to Kabale to
attend as witnesses was bound to be prohibitive as to deny him
 justice. Therefore if the application was not allowed, it would
amount to shutting the plaintiff behind the doors of justice.

 A suit that is instituted in a court that lacks jurisdiction cannot be

transferred and will be dismissed; Kagenyi V Musiramo [1968]
EA 43(U). The order for transfer of a suit cannot be made unless
the suit has been in the first instance instituted in a court, which has
jurisdiction. Read; Sgt Kalemera Franck vs Uganda SCCA No.
18 /94

In the case of Cyprian Obbo vs. Alafari Onyango & Ors HCCA
No. 130/2012 the issue was whether the duty to allocate the file to
a competent magistrate lay with the Chief Magistrate. Court held
that the position of the law is that a subordinate court cannot on its
own initiative transfer a case to another subordinate court, or try a
case which is not within its territorial or magisterial area. That in the
case of David Kabungu vs. Zikarenge High Court Misc. App.
36 of 1995 [1995] 3 KALR 48-it was held;

‘A subordinate court has no jurisdiction to transfer a

suit. On the other hand a subordinate court to which a
suit is purportedly transferred by another subordinate
court, if he hears the case and decides it, takes the case
without jurisdiction as the case was not filed in that
court nor transferred to it by the order of the High
Court.’

That also in Kigenyi v. Musiramo (1968) EA 43 it was held that

an order for transfer of a suit cannot be made unless the suit had in
the first instance been brought to a court which has jurisdiction to
try it.That it was clearly right for the learned magistrate to decline
the option to transfer the suit since he had no jurisdiction to try the
matter, and has no jurisdiction to try the same. The suit was filed in
a wrong court and could not be heard by the Chief magistrate,
neither could it survive to be transferred, its natural fate was to be
dismissed.

The jurisdiction of the constitutional court.

Article 137 of the 1995 constitution provides for the jurisdiction of the
constitution court. Any question as to the interpretation of the
Constitution shall be determined by the Court of Appeal sitting as the
constitutional court consisting of a bench of five members of that court. A
person who alleges that (a) an Act of Parliament or any other law or
anything in or done under the authority of any law; or (b) any act or
omission by any person or authority, is inconsistent with or in
contravention of a provision of the Constitution, may petition the
constitutional court for a declaration to that effect, and for redress where
appropriate. Where any question as to the interpretation of the
Constitution arises in any proceedings in a court of law other than a field
court martial, the court (a) may, if it is of the opinion that the question
involves a substantial

question of law; and (b) shall, if any party to the proceedings requests it
to do so, refer the question to the constitutional court for decision.

In the case of The Attorney General vs Major General David

Tinyefuza Supreme Court Constitutional Petition No. 1 of 1997
WW Wambuzi C.J (as by then) had this to say at page 24 of his judgment;

‘‘In my view, jurisdiction of the Constitutional Court is

limited in Article 137(1) of the constitution to interpretation
of the Constitution. Put in a different way no other
jurisdiction apart from interpretation of the Constitution is
given. In these circumstances I would hold that unless the
question before the Constitutional court depends for its
determination on the interpretation or construction of a
provision of the constitution, the Constitutional Court has
no jurisdiction.’’

The learned Chief Justice in the same judgment went on to observe as

follows;-

‘‘Indeed in the subsequent decision in Uganda Journalists

Safety Committees and Anor versus Attorney General
Constitutional Petition No. 6/97 )unreported) upholding an
objection to jurisdiction, the Court held, quite rightly in my
view as follows;-

‘‘The Constitutional Court is thus a new Court

created by Article 137 of The Constitution for the
sole purpose for the interpretation of the
Constitution either following a reference under
Legal Notice 3 or by means of a petition under
Legal Notice No. 4 of 1996. The jurisdiction of
Court to entertain both matters i.e, ‘Reference’
and ‘Petition’ are derived from Article 137 of the
Constitution. The Constitutional Court is therefore
not a proper forum for a person seeking redress
under Article 50 of the Constitution. This is clear
from the provision of the Article itself…’’

Read: Ismail Serugo versus Kampala City Council and The Attorney
General, Supreme Court Constitutional Appeal No. 2 of 1998.

The Jurisdiction of Small claims- Judicature (Small claims

procedure) rules 2011
Small claim is a civil claim whose subject matter value does not exceed
Ug. Shs. 10,000,000. For example, small claims procedure can be used
for matters arising out of the supply of goods, debts and rent.

S.5 of the Judicature (Small claims procedure) rules 2011 provide for
the jurisdiction of small claims. It is applicable to claims not exceeding
Ug.shs. 10,000,000 in value. However small claims exclude; claims
exceeding Ug.shs. 10,000,000/-, claims against the government, family
disputes relating to the management of an estate, contract of service
and contract for service, suits for defamation, wrongful arrest, wrongful
imprisonment, malicious prosecution, and seduction, petition for
divorce, nullification of marriage or separation of spouse, claims
concerning validity of a will, a claim in which specific performance is
sought without an alternative claim for payment of damages, except in
the case of a claim for rendering an account or transferring movable
property and disputes arising out of a tenancy agreement not
exceeding Ug shs 10,000,000/- in value.

Every suit shall be instituted in a court in whose jurisdiction the

property is situated or where the defendant resides. It is only a natural
person who may institute an action in court, but a body corporate may
become a party to an action as a defendant.

In the case of Lubanga vs Baina HCCR No. 13/2015 the applicant

was sued in the small claims and judgement given against him of which
was dissatisfied with the findings and judgement of the trial court. In an
application for revision in the High court the issue was whether the trial
court exercised jurisdiction not vested in it by law and in so doing
occasioned an injustice to the applicant. Court held that according to
rule 5(1) of the Judicature (Small Claims Procedure) Rules SI 25 of
2011, a small claim procedure shall cover a case whose subject matter
does not exceed ten million Uganda shillings and under sub rule 2 it
gives exception under which this matter does not fall. Further held that
according to the record of proceedings this was a claim involving a
refund of the security deposit in a tenancy agreement which was
equivalent to shs. 4,800,000/- and by virtue of the rules the court was
within the range of jurisdiction vested.

Pre-Entry Exam 2010/2011

Qn. 42 Identify the different ways through which a matter can be taken
to the constitutional court for determination.

Pre-Entry Exam 2015/2016

Qn. 46 Araali sued Akiiki in the High Court at Arua for trespass to his
land at Fort Portal. Akiiki wants to raise a preliminary objection of lack
of geographical jurisdiction. What should Araali do in the
circumstances?

Pre-Entry Exam 2016/2017

 Qn. 7 A court with supervisory civil jurisdiction over a lower court may:

A. Write judgement for the lower court

B. Discipline judicial officers of the lower court
C. Appoint judicial officers of the lower court
D. Draft rules of procedure for the lower Court
E. None of the above
TOPIC IV.

Institution Of Suits:

The Procedure of commencing suits:

Institution of Suits:

Read; S. 19 CPA O.4 r 1, O.36, O.37, O. 52 CPRs; etc:

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

A Suit is defined under section 2 of the Civil Procedure Act (CPA) as all
proceedings in whatever manner commenced.

Mansion House ltd Vs Wilkinson (1954) 22 EACA 98 Held: A suit is any

civil proceedings commenced in any manner prescribed by rules made by
the Rules Committee to regulate the procedures of courts under the civil
procedure Act.

Nakitto & Brothers Ltd V Katumba [1983] HCB 70; that the suit is
defined as all proceedings commenced in any manner prescribed. That
this included a notice of motion.
Read the case of Meera Investiments Limited V Jeshang Popat Shah
CACA No. 56 of 2003
In the case of Matco Stores Ltd & 2 Ors v Muhwezi H C CIVIL
APPEAL NO. 09 OF 2012 it was held that under section 2(X) of the Civil
Procedure Act “‘suit’ means all civil proceedings commenced in
any manner prescribed.” That Section 2(q) defines the term
‘prescribed’ as ‘prescribed by rules’, while the term ‘rules’ is defined in
section 2(t) of the same Act as ‘rules and forms made by the rules
committee to regulate the procedure of courts.’ That it would appear
from the foregoing rule that the suit envisaged by section 2 of the CPA is a
substantive suit as opposed to miscellaneous applications, as is the case
presently. That indeed in Mityana Ginners Ltd vs. Public Health
Officer, Kampala (1958) 1 EA 339 at 342 the honourable judge drew a
distinction between decrees and orders of courts in so far as they relate to
the definition of a suit, and held: “It seems clear that, whereas
decrees arise only in suits, orders may arise in proceedings which
are not suits, to which class of proceedings I have referred to
above. If therefore, as I believe, the application to the Supreme
Court was not a ‘suit’, it could not result in a decree, but only in
an order.” That bringing the ratio decidendi in Mityana Ginners Ltd vs.
Public Health Officer, Kampala (supra) home to the application, clearly
the orders of Magezi J. in miscellaneous application No. 38 of 2009 arose
from civil proceedings that do not constitute a suit. The proceedings from
which those orders accrued were an application for the discharge of a
temporary injunction not considered to be a suit for purposes of the bar
of res judicata.

S.3 CPA; In all cases when there is no special procedure resort should be
had to the Civil Procedure Rules and its application can only be excepted
by procedure contained in any other Act. The first thing is to look for any
specific provision to the contrary, e.g. the constitution in constitutional
matters, Acts like the Divorce Act etc.

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

General rule on procedure of instituting suits is laid down in S.19 CPA;

Every suit shall be instituted in such a manner prescribed by the in the
rules [CPR; rules apply as far as practicable to all matters arising under
the CPA;

Meera Investments Ltd V Jesgang Popat Shah CACA No. 56 of

2003

Relevant steps / Considerations before commencement of suits

Concurrence of Civil and Criminal Proceedings; In some instances, an
aggrieved party may be in a dilemma as to whether to take civil or
criminal proceedings against the intended defendant.[examples include
negligent driving and bounced cheques] The question is whether it is
possible to pursue criminal and civil proceedings concurrently arising from
the same claim;
A criminal court may order compensation for material loss or personal
injury under sections 197 and 126 of the Magistrates Court Act and Trial
on Indictment Act respectively. This is not a bar to a subsequent civil
action for damages and the principle of res judicata shall not be a defence
in an action for recovery of damages and other reliefs. A person is at
liberty to set both criminal law and civil law in motion to recover damages.
However at the time of awarding any compensation in any subsequent
civil suit relating to the same matter, the court hearing the civil suit shall
take into account any sum paid or recovered as compensation under this
section.

Read Esso Standard (U) Ltd V Mike Nabudere HC No. 594/1990. The
defendant applied to stay civil proceedings on ground that there were
pending criminal proceedings derived from the same facts; Karokra J; Held
that the plaintiff’s demand for damages in the civil suit did not in any way
prejudice the criminal proceedings in the criminal court and there is no
justification for staying the civil suit. Additionally, the plaintiff was only to
prove his case on the balance of probabilities and the resultant judgement
had no evidential value in the prosecution of the defendant, since there,
proof was required beyond reasonable doubt. In any case, police
investigations take too long to be completed and such delay should not
constitute a bar against the plaintiff’s rights of action. The common law
rule that barred commencement of a civil suit during the pendency of
criminal proceedings is no longer applicable to Uganda

In the case of Kakira Sugar Works Ltd v Patrick Masombo & Anor
HC CIVIL SUIT NO. 120 OF 2004 the “plaintiff” company sought the
recovery of Shs.1, 429,000,000/= (One billion four hundred and twenty
nine million Uganda Shillings) the 1st and 2nd“defendants” respectively
the company’s former employees. They are sued jointly and severally for
alleged fraudulent acts committed during the course of their employment
from 1995 and 2000, which include making false claims for money paid on
account of weigh bridge and motor vehicle road licensing fees to Uganda
Revenue Authority (URA), obtaining fake URA receipts as well as
fraudulently altering approved requisitions or accountabilities. Concerning
their acquittal in the Criminal Court, Justice Bashaija held that with regard
to the criminal charges of embezzlement, acquittal of the defendants in
the criminal case does not exonerate them from civil liability, if any, or
stop the plaintiff from seeking a civil remedy. The civil suit and criminal
case are primarily different cases under different laws and procedures,
and the standard of proof in criminal cases is quite higher than that in civil
cases. Therefore, acquittal of the defendants for the offence of
embezzlement does not necessarily prohibit the plaintiff from instituting
civil action for recovery of monies lost due to their fraudulent actions, if
evidence is adduced and their liability proved to the required standard.

The other relevant consideration relates to the relevancy and effect of

Criminal proceedings /judgement in Civil Suits; Read; Erinesti Ochieng
V Obedo Nyambito Civil Appeal No. 92 of 1973; it is trite and
rudimentary that proceedings in a criminal case could not be used to
prove a cause of action in a civil suit – although the record in the criminal
court case could be used for certain purposes such as contradicting a
witness by facing him with what he stated in the trial of a criminal case.

Notice of intention to sue and Statutory Notice

Read; R.39 Advocates Remuneration and Taxation of Costs rules

Read; Section 22 of the Administrator General’s Act

Read; The Civil Procedure & Limitation (Miscellaneous Provisions) Act Cap

Notice of intention

There is no mandatory legal requirement to serve an ordinary notice of

intention to sue. S.19 CPA, all suits to be commenced in the manner
provided in the rules; The Civil procedure rules have no provision for
Notice of intention to sue.

However, where no notice of intention is served, taking into circumstances

of the failure, the plaintiff may be penalised in costs. In Wam bugu V
Public Service Commission [1972] EA 29, Chanan Singh J held that a
notice of intention should always be given in all cases unless the plaintiff’s
interests are likely to be harmed by the notice if given, the rationale being
that failure to serve a notice could prejudice the position of the defendant
in as much as he would wish to settle or admit liability and avoid court
action. Costs would therefore not be awarded to the plaintiff.

R.39 Advocates Remuneration and Taxation of Costs rules provides that

‘If the plaintiff in any action has not given the defendant notice of
his or her intention to sue, and the defendant pays the amount
claimed or found due at or before the first hearing, no advocate’s
costs shall be allowed except on an order of the judge or
magistrate’.

Section 22 of the Administrator General’s Act provides that ‘if any suit
be brought by a creditor or any other claimant against the
Administrator General, the creditor or claimant shall be liable to
pay the costs of the suit unless he or she proves that not less
than one month previous to the institution of the suit he or she
had applied in writing to the Administrator General, stating the
amount and other particulars of his or her claim, and had given
such evidence in support of the claim as, in the circumstances of
the case, the Administrator General was reasonably entitled to
require.’
Note; The ordinary Notice of intention to sue is served on any intended
defendant other than those specified in The Civil Procedure & Limitation
(Miscellaneous Provisions) Act Cap 72

Notice of Dishonour Cum Notice of Intention to Sue

In suits founded on dishonoured negotiable instruments/ cheques, the

failure to take relevant steps to serve a notice of dishonour of a bill of
exchange may discharge the drawer from liability; Such failure disentitles
the payee from the right of recourse against the drawer on the
bill/cheque; Read S.50(2) Bill of Exchange Act cap 68;

In the case of Obed Tashobya v DFCU Bank Ltd HCT-00-CC-CS-742-

2004; held that although the usual recourse is to return the dishonoured
bill to the customer, where it is not available like in this case, other
evidence may be relied upon as proof and/or notice of dishonour. That the
telex message and the personal communications of the dishonour to the
plaintiff by the defendant are sufficient evidence that the suit cheque was
dishonoured.
In Nanji Khodabhai –Vs- Sohan Singh [1957] EA 291, a cheque was
dishonoured on 25/4/1955 and notice of dishonour was not given until
29/4/1955. The Court held that the defendant was discharged because
there were no special circumstances to justify any delay and notice should
have been given on 26/4/1955.

See also Simba Motors Limited V John Sentongo & Anor HCT-00-
CC-CS-0733-2000

Note; An ordinary Notice of intention to sue is by way of a formal letter.

Statutory Notice

Requirement to Serve a Statutory Notice

Section 2 (1) of the Civil Procedure and Limitation (Miscellaneous

Provisions) Act Cap. 72 provides for Notice prior to suing. It thus provides;-

‘‘After the coming into force of this Act, notwithstanding the

provisions of any other written law, no suit shall lie or be
instituted against—

(a) the Government;

(b) a local authority; or

(c) a scheduled corporation,

until the expiration of forty-five days after written notice has

been delivered to or left at the office of the person specified in
the First Schedule to this Act, stating the name, description and
place of residence of the intending plaintiff, the name of the
court in which it is intended the suit be instituted, the facts
constituting the cause of action and when it arose, the relief that
will be claimed and, so far as the circumstances admit, the value
of the subject matter of the intended suit.’’

In the case of the Commissioner General and Uganda Revenue

Authority Vs. Meera Investments Ltd Supreme Court civil appeal
number 22 of 2007 the judgment of court delivered by Honourable
Kanyeihamba J.S.C. at page 10 of the judgment decided that:

"in my opinion, it is only in the relation to what the law specifically

provides for as its purpose and functions that the Uganda Revenue
Authority may sue and be sued in its corporate name. In this respect and
as a scheduled corporation, it would be entitled to the right of receiving a
statutory notice under the Civil Procedure and Limitation (Miscellaneous
Provisions) Act cap 72…”

Also in Pamba Vs. Coffee Marketing Board (1975) HCB 369, The
Plaintiff sued the defendant as scheduled corporation for damages for
personal injuries. The defendant denied liability contending that the suit
was incompetent, as no statutory notice had been served as required
under S.1 of the CP and Limitation Miscellaneous Provisions Act. Held that;
‘‘by virtue of section 1 of CPL (Misc Provisions) Act 1969, no suit can be
instituted against a scheduled corporation unless written notice has been
delivered or left at the office of Secretary of the corporation. Where
service of statutory notice is denied, the onus of proof of service of such
notice is on the plaintiff…where no such evidence is shown, the procedure
was not followed, no suit could lie or be instituted against the defendant
corporation…’’
Rationale of Statutory Notice.

The object of a statutory notice is to give government the opportunity of

settling the claim or enable government to investigate the alleged cause
of complaint.

In the Supreme Court case of Kampala Capital City Authority v

Kabandize & 10 Ors (CIVIL APPEAL No. 013 of 2014) the Supreme
Court stated the rationale for service of the Statutory Notice that it was to
enable a statutory defendant investigate a case before deciding whether
to defend it or even settle it out of court and held that it is still relevant
and should not be done away with. That an individual does not require as
much time as the Attorney General or Statutory body to investigate a
matter before defending it. That while the individual may have the facts
on which to defend a suit readily available, the Attorney General has to
consult and seek instructions from the various departments of
Government before deciding on whether or not to defend a suit.

Mandatory or Directory Requirement

The requirement for service of statutory notice is directory and need not
vitiate a suit. In the Supreme Court case of Kampala Capital City
Authority v Kabandize & 10 Ors (CIVIL APPEAL No. 013 of 2014)
the Supreme Court stated that the question that remains to be answered
is whether the desirability of the requirement necessarily makes it
mandatory. Court held that failure to serve the Statutory Notice does not
vitiate the proceedings and Article 126 (2) of the Constitution is
instructive. That the provision is directory and need not vitiate a suit. The
facts and circumstances of each case must be taken into account. That a
party who decides to proceed without issuing the Statutory Notice only
risks being denied costs or cause delay of the trial if the Statutory
defendant was unable to file a defence because she required more time to
investigate the matter. That the emphasis should not be on the failure to
serve the Statutory Notice but on the consequences of the failure so long
as both parties are able to proceed with the case and Court can resolve
the issues. That parliament could not have intended that a plaintiff with a
cause of action against a Statutory defendant would be totally denied his
right to sue even where the defendant knew the facts and was able to file
a defence as it was in this case simply because of the failure to file a
statutory notice. Further held that it would be an absurdity to interpret
Section 2 of the Civil Procedure (Miscellaneous Provisions) Act to mean
that even where the Government, a Local Authority or a Scheduled
Corporation was already aware of the facts of the claim and may even
have taken steps to deal with the claim, it can then turn around and plead
that because no Statutory Notice was served on it, the claim is vitiated
and no suit can be filed in court against it. That this would be a case
where legal interpretation of a statute defeats substantive justice. That
could not have been the intention of the legislature.

Similarly in special circumstances, the word ‘shall’ in the Act had been
earlier construed as directory and not mandatory; Sarah Kafrika
Mbonabukya V NPART Tribunal Case No. 24 of 1999. A suit filed
before the NPART Tribunal against NPART, which was a scheduled
corporation. Objection raised that the suit was premature and
unmaintainable because the notice of 60 days prescribed under the CP &
Limitation [Miscellaneous Provisions Act was not given to the defendant.
[ An ordinary notice of intention to sue had been served]. Held; that the
provision requiring service of a statutory notice must be construed in
relation to the NPART Statute and its objects. The Act was a special
enactment, which in case of conflict must be given effect over the other
enactments, which existed before it in order that its special scheme may
be attained. That the court would thus construe the word ‘shall’ as
directory in order to achieve the objects of the NPART Act. That
insufficiency of the notice was a procedural irregularity, which could only
be said to be fatal if it would cause substantial prejudice;
NB; scheduled corporations may be included in the Act by a subsequent
Statutory Instrument. Read; Sarah Kafrika Mbonabukya V NPART
Tribunal Case No. 24 of 1999.

See the Civil Procedure and Limitation (Miscellaneous Provisions) Act

(Amendment of schedule 3) order inserting the Electricity Regulatory
Authority, (ERA)

 Also note that; not all statutory corporations/corporation are scheduled

corporations.
[See Administrator General]

 Note the distinction between a company, a statutory corporation and a

scheduled corporation.

Form of a statutory Notice;

Section 2(2) of the civil procedure and limitation miscellaneous provisions

Act provides for the form of the statutory notice. The written notice shall
be in the form set out in the Second Schedule to the Act, and every plaint
subsequently filed shall contain a statement that such notice has been
delivered or left in accordance with the provisions of the section.

The notice shall state the name, description and place of residence of the
intending plaintiff, and intending defendant, nature of relief sought, the
name of the court in which the suit is to be filed and facts constituting the
cause of action, value of subject matter.

See Rwakasoro Vs Attorney General HCCS No. 711 of 1977.The

plaintiff filed a suit against the A-G and sent a statutory notice to the A-G
but the defendant’s counsel raised a preliminary point of law that the
notice did not disclose a cause of action. Unless sufficient facts are
disclosed in the statutory notice Government may not know what the
claim is about. In the instant case the information given in the notice was
meaningless because nothing was shown about the deceased and the
accident to make the government vicariously liable for damages. It was
good practice for the advocate to annex a copy of the intended plaint to
the statutory notice so that all relevant and necessary facts are known to
the person to who the notice is given. No valid notice was given to the A-G
and time has not lapsed.

A statutory notice should ordinarily constitute facts giving rise to the

cause of action and should be consistent with the pleadings. Dr. J.W
Rwanyarare & ors v AG HMA No 85/93

 However, the contents of a statutory notice are directed or limited by

the peculiar circumstances of each case; See Katwe Butego Division
 LGC V Masaka Municipal Council MHCCS No. 0011/2005 See also
S.43 of the Interpretation Act on substance of statutory forms.

Service of a statutory Notice;

Section 2(1) and the Fist schedule of the CP and Limitation Miscellaneous
Provisions Act provides for persons at or to whose office notice to be
delivered or sent. In case of the Attorney General notice is delivered to
the Attorney General, in case of local administration the notice is
delivered to the Chief Administrative Officer, in case of a municipal council
the notice is delivered to the Town clerk of the council, in case of a
scheduled corporation notice is delivered to the corporation secretary.

See Katwe Butego Division LGC V Masaka Municipal Council

MHCCS No. 0011/2005; The statutory notice was served upon the
chairman of the defendant who allegedly transmitted it to the Town Clerk
and the question was whether service was duly effected. Service deemed
to be effective in view of the available evidence that the notice was
received by the Town clerk for action.

 Whether notice must be delivered to specified officer; Katwe Butego

Division LGC V Masaka Municipal Council MHCCS No.
0011/2005; Held; that the provisions of S.2 of the Act in as far as it
relates to delivering or leaving the notice at the specified office of the
specified officer is only directory and not mandatory.[see Article 126(2)
(e)]

Proof of Service of a Statutory Notice; The burden of proving that the

notice was duly served is on the plaintiff; In Pamba Vs. Coffee
Marketing Board (1975) HCB 369, Held that; ‘‘…Where service of
statutory notice is denied, the onus of proof of service of such notice is on
the plaintiff …’’See also Kampala City Council V Nuluyati [1974] EA
400

 Effect of failure to plead that Statutory Notice was served; it is good

practice to always indicate in the pleadings that statutory notice was
served and a copy of the served notice must be attached; Kateme Ltd
V Management Training & Advisory Center[1998] 11KALR 18;
Kibuuka Musoke Ag J. held that failure to plead that statutory notice
was served and to annex it on the plaint was breach of a mandatory
requirement. However, it was ancillary to the requirement to serve the
notice, which was in this case served. The omission to plead service
was therefore curable by way of amendment and the application for
leave to amend would be granted.
 Objection to a suit based on want of service of a statutory Notice must
be raised as a preliminary objection [ except where it may require
formal proof]; Read; Apollonia Nakirya V Ssekataba and Anor
CACA No. 38 /2003 for the proposition that the question of statutory
notice being wanting should be raised as a preliminary point of
objection for determination and should not be raised after trial. Read
Katwe Butego Division LGC V Masaka Municipal Council MHCCS No.
0011/2005;

Exceptions to the requirement of a Statutory Notice;

Statutory Notice may be waived in cases involving applications for

enforcement of fundamental rights and freedoms guaranteed by the
constitution;

In the cases of Dr. Rwanyarare vs. Attorney General (Constitutional

Petition No. 3 of 2002) and Greenwatch vs. Uganda Wildlife
Authority (Misc Application No. 92 of 2004) are that where the rights
and freedoms of people are being infringed or about to be infringed and
there is ‘‘need for court to take pre-emptive action in order to prevent or
forestall damage from the alleged violations’’ the requirement of the
Statutory notice cannot apply.

See TEAN V A-G /NEMA Misc. Application No. 29 of 2001, BATU V TEAN
HCC Application No. 27/2003; action founded on provisions of the
constitution in relation to protect and prevent violation of human rights
not to be constrained by statutory procedural requirements as such
provisions would hinder administration of substantive justice.

Circumstances where a statutory notice is waived on ground of unfairness

and public interest; See Kanyeihamba JSC In the case of The
Commissioner General Uganda Revenue Authority v Meera
Investments Ltd ((CIVIL APPEAL NO.22 OF 2007 held that it is only
in relation to what the law specifically provides for as its purpose and
functions that the Uganda Revenue Authority may sue and be sued in its
corporate name. In this respect and as a scheduled corporation, it would
be entitled to the right of receiving a statutory notice under the Civil
Procedure and Limitation (Miscellaneous Provisions Act, Cap 72.
However, the rights, powers and obligations prescribed under the Uganda
Revenue Authority Act are not exclusive to the Authority. It is thus
abundantly clear that the Commissioner General is a competent party to a
suit under these Acts. Certainly, if he or she can sue to recover tax, he or
she can be sued by a party unhappy with the tax assessments made
by the Commissioner General or officers under him or her.

TOPIC IV
 COURT FEES

Assessment, Payment, Time of Payment of Court Fees and the Fling

Process

 Court fees must be paid in accordance with the Judicature (Court Fees,
Fines & Deposit Rules SI 13-3. [See copy of the fees structure] Read
Order 9 r.16 and O.7 r.11(c) on implications of non payment of fees and
payment of insufficient fees.

 Court fees depend on the value of the subject matter of the suit and
proceedings are deemed to be filed when the fee is paid; Musango Vs
Musango(1979) HCB 226 Held: That the proceedings were deemed
to be filed when the appropriate fees is paid in court such fees being
dependent on the value of the suit.

 General rule is that as a matter of the law, documents cannot validly

be filed in the civil matter until fees have either been paid or provided
for by a general deposit from the filing advocate which authority has
been given to decide court fees.

In Unta Exports Ltd-vs- Customs ( [1970] EALR 648) the plaint

was lodged in the registry for filing on the 14 th September 1968 and the
court fees were paid on the 16th September 1968 which was already
out of time.

Goudie, J observed at page 649 that;

“I have no doubt whatsoever that both as a matter of practice

and also as a matter of law documents cannot validly be filed
in the civil registry unless fees have been paid or provided for
by a general deposit from the filing advocate from which
authority has been given to deduct court fees”. He then ruled
that the plaint was filed out of time, having not been properly filed until
fees paid on 16th September 1968.

The principle in Unta Exports Ltd-vs- Customs ( [1970] EALR 648) was
applied in the case of Central Electricals International Ltd & Anor vs
Prestige Investments Ltd HCMA No. 625 of 2011 Justice Hellen Obura
holding that every lawyer ought to know that documents are only validly
filed upon payment of court fees. That there are many authorities to that
effect. See the case of Babihuga Winnie v Matsiko Winfred, Election
Petition Application No. 14 of 2002 where the Court of Appeal held that
documents are properly filed in court after payment of court fees. See also
Ndaula Ronald vs. Hajji Naduli Adbdul & Anor Electoral Petition Appeal No.
20/2006 and Pinnacle Projects Ltd v Business in Motion Consultants Ltd,
Miscellaneous Application No. 362 of 2010 where the court quoted with
approval the observation of Goudie J in UNTA Exports Ltd vs Customs
[1970] EALR 648 at page 649. Court held that in view of the settled
principle of law, the amended WSD and Counter claim was filed on 24 th
October 2011 when it was lodged at the court registry and sealed by the
Registrar after the court fees were paid, that the endorsement made on
the 20th October 2011 was therefore irregular since court fees had not
been paid. However, that notwithstanding, the court on its own motion
was inclined to exercise power given by court by section 98 CPA and
section 33 Judicature Act to enlarge time for filing the amended WSD
consequently validated the WSD and counter claim that was filed on 24 th
October 2011 and further ordered for payment of the correct amount in
accordance with the rules that govern payment of court fees.

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

The proviso to R.6 of the court fees, fines and Deposits rules confers
discretionary power to court to make orders for a defaulting party to pay
the proper fees. Such an order is made in the in the interest of justice and
must be done judiciously. The circumstances of any particular case must
be weighed.

In the Supreme Court case of Lawrence Muwanga v. Stephen Keyune,

S.C.Civil Appeal No. 12 of 2001 Maliya& 3 Ors [1992-1993] wherein
Tsekoko, JSC cited with approval Manyindo J’s (as he then was) holding
in Yese Ruzambira v. Kimbowa Builders & Construction Ltd (1976) HCB
278, in which the learned judge stated:- ‘‘None payment of Court fees
could not affect a judgment entered by Consent and that the remedy for
non-payment of fees was to rely on rule 6 of the Court Fees, Fines and
Deposit Rule (Cap 41) to order the defaulting party to pay the necessary
fees to the Court.’’ The Learned justice also upheld Justice Engwau’s
holding in an earlier appeal before the Court of Appeal wherein he held:-
“A complaint against non - payment of court fees is a minor procedural
and technical objection which does not; and should not, affect the
adjudication of substantive justice as envisaged in Article 126 (2)(e) of the
1995 Constitution of Uganda. The remedy for non-payment of Court fees
would have been the invocation of Rule 6 of the Court Fees and Deposit
Rules (Cap.41) to order the defaulting party to pay the necessary fees to
the Court”. Justice Tsekoko cited Rule 6 and held that the proviso to Rule
6 gives discretionary power to court to make orders for a defaulting party
to pay the proper fees. Such an order is done in the interest of justice and
must be done judiciously.

 Court fees may be paid subsequent to the lodgement of the suit

provided the party is still within time to file the document, though the
document will be deemed to have been filed on the date of payment
not lodgement [Bank Arabe Espanol V Bank of Uganda SCCA
No.48 of 1998: A court may allow any payment of fees later on as
long as the time within which payment must be made has not lapsed.
In that case, the fees were paid shortly after filing the notice of appeal,
but within the 14 days limitation. Court held the notice of appeal as
 valid provided the fees were paid within the time allowed by the rules.
[See. O 33, suits by paupers].

In the case of AmamaMbabazi& A’ nor v. MusinguziGaruga James,

C.A. Civil Appeal, No. 12 of 2002; it was held, inter alia, that court can
order for payment at any stage of the proceedings where it finds that fees
were not paid, and if fees are paid the document and/ or any proceedings
relating thereto shall be as valid as if the proper fees had been paid in the
first instance.

 Nonpayment of court fees resulting from a mistake by the court

registry[ both WSD and Counterclaim attract separate fees; See also;
Christopher Katuramu Vs Mariya:(1991-92) HCB 161; the
applicant challenged a ruling entered for the respondent by contending
that no counter claim existed at the time of the ruling as no filing fees
had been paid. [Mistake of the court official] Held: That there was no
action filed unless fees had been paid. The records of the court file only
indicate that fees paid by the WSD, which embodied the counter claim.
There was an irregularity on the part of the registry staff compared
with the fact that the format was not followed and the respondent
could not suffer due to such irregularity.

 A plaint may only be struck out under O.7 r. 11(c) where court orders a
party who had paid insufficient fees to pay the balance but such a
party fails to comply; Byabazaire Grace Thaddeus v Mukwano
Industries HC Misc. Application 909/2000 [2002] 2 EA; for the
proposition that where insufficient fees is paid and the same is
brought to the attention of court, court should just order the defaulting
party to pay and if the order is disobeyed then an order rejecting the
plaintiff .

In the case of Namatovu Susan vs. Baguma Augustine HCMA No.

1073 of 2013 Justice Madrama held that there were insufficient fees
paid for the counterclaim. That the file be forwarded to the accounts
section of the court for assessment of fees of the counterclaim and
proceedings in the counterclaim stayed until any assessed fees due
have been paid. That a counterclaim is a separate suit and attracts the
same fees as a plaint. Further held that the rest of the suit shall
proceed and not affected by the order of stay of the counterclaim. That
in case the applicant fails to pay fees for the counterclaim within 14
days from the date of assessment, the counterclaim shall be struck off
the record.

 Nonpayment of court fees may not affect the validity of a judgement or

court order; Yese Ruzambina V Kimbowa Builders & Construction
Limited (1976) HCB 278;Nonpayment of court fees could not affect a
judgement entered by consent and the remedy for nonpayment of fees
 was to rely on r.6 of the Court Fees, Fines and Deposits Rules to order
the defaulting party to pay the necessary fees to the court.

 Nonpayment of court fees may be remedied by late payment; Amrit

Goyal V Harichand Goyal & Othrs CACA No. 109/2004; That
nonpayment of fees is a minor technicality that which can be cured by
Article 126(2) (e) of the constitution; The omission to pay fees may be
rectified by late payment;

In the case of Kato & 12 Ors v International Holdings (U) Ltd (MISC.
APPLIC. No. 247 Of 2013 Court held that As far as nonpayment of court
fees is concerned, Order 9 rule 16 of the CPR provides; “Where on the
day fixed for filing a defence or to appear and answer, it is found
that the summons has not been served upon the defendant in
consequence of the failure of the plaintiff to pay the court fee or
charges, if any, for the service, the court may make an order that
the suit be dismissed.” That going by the dictum in the case
of Unta Exports Ltd v Customs (supra) a document is not properly
filed until the fees are paid. However, in the case of Lawrence
Muwanga v Stephen Kyeyune CACA No. 20 of 2000 which was
upheld on appeal in SCCA No. 12 of 2001, it was held; “A
complaint against nonpayment of court fees is a minor procedural
and technical objection which does not and should not affect the
adjudication of substantive justice as envisaged in Article 126 (2)
(e) of the 1995 Constitution of the Republic of Uganda. The
remedy for nonpayment of court fees would have been invocation
of rule 6 of the Court Fees, Fines and Deposit Rules to order a
defaulting party to pay the necessary court fees.” That the court
file was endorsed with a payment stamp for the chamber summons. A fee
of 1500 under receipt No. 1827451 was paid on 11/4/2013 and endorsed
with a stamp of this court although the chamber summons was filed on
10/4/2013. That based on the above authority, the applicants validated
the filing of the summons the following day by paying the requisite fees.

In the case of WinnieBabihuga vs Winnie Matsiko Election Petition

No.13 of 2002) which concerned the effect of non-payment of court fees
in time accompanied by late payment, Court held that:-

(a) On the authorities available to us, non-payment of court fees is a

minor technicality which can be cured by article 126(2)(e) of
the Constitution because the Notice of Appeal was given orally in court
which did not require payment of court fees. (b) In any case, omission
to pay court fees by the respondent was rectified by late payment of the
court fees.
  See procedure of remedying the non/late payment of fees; Read;
Electoral Commission V Nambooze Betty Bakireke [2007] HCB
52 for the principle that there is no illegality in late payment of court
fees, it’s a minor technicality curable under Article 126(2) (e)

 Nonpayment of court fees may be overlooked in an endeavour not to

defeat justice Betuco (U) Ltd & Anor. V Barclays Bank of Uganda
Ltd HCT-00-CC-MA-0243-2009; A complaint against non payment of
court fees is a minor procedural and technical objection which does not
and should not affect the adjudication of substantive justice as
envisaged in Article 126(2) (e) of the 1995 constitution of Uganda. It
does not serve justice for a judgement reached to be nullified merely
for nonpayment of the court fees. Justice would be defeated by just a
mere procedural and technical a normally which can be remedied by
ordering the requisite fees to be paid.

The process of Filing Suits

 Suits are filed in the relevant court registry by lodging the relevant court
papers [pleadings] within the stipulated time [see limitation of actions]
Read W.H.R Wanyama V KCC & Anor. [2008] HCB 111 for the
principle that an offer to negotiate terms of a settlement between the
parties to an action has no effect whatsoever on when to serve a
statutory notice or file an action. It is incumbent on those who need to
file documents to do so in time.

 Note; when and where to file suits; court documents are required to be
filed in the registry of the appropriate court[ see divisions of the High
Court] Athanasius Kivumbi V Hon Emmanuel Pinto Constitutional
Petition No. 5 of 1997

TOPIC V

Modes of commencement of suits

S. 19 of the CPA provides that every suit shall be instituted in such a

manner as may be prescribed by the rules. In the Supreme Court case of
General Parts (U) Ltd & Haruna Semakula vs. NPART SCCA No. 9
of 2005 it was stated that it is trite that in civil matters the only mode of
instituting suits are by plaint, originating summons and petition.

Court actions/suits may be prescribed by any of the following process

which may be prescribed by law;

(a) Ordinary suit /Plaint

(b)Summary Plaint
(c) Originating summons
 (d)Petition
(e) Notice of Motion
(f) Chamber summons
(g)Others may include: Memorandum of claim in the industrial court,
Complaint before the Labour Officer, Statement of claim, letter

The forms used for purposes of the Act shall with such variations as the
circumstances of each case may require, be those to be found in the
appendices and such other forms as may be from time to time be
approved by the High Court-Order 49, rule 3CPR.

Ordinary suit / Plaint-O.4 CPR

This is the usual method of commencement where there is a substantial

dispute as to the facts. O.4 r.1 provides that every suit shall be
commenced by way of a plaint. [Only applicable to suits requiring
considerable amount of oral evidence, suits requiring specific pleading of
particulars like negligence, fraud e.t.c) Every plaint shall comply with rules
contained in Orders 6 and 7 so far as applicable-O4 r 1(2)

In the case of Medi vs Wandera HCC Appeal No. 102 of 2011 held
that this was a matter involving substantial issues of facts and should
have been instituted by way of ordinary suit in accordance with Order 4
rule 1 of the Civil Procedure Rules. Reference was made to the case of
General Parts (U) Ltd & Haruna Semakula vs. NPART SCCA No. 9 of 2005
where it was held that the only modes of instituting suits is by plaint,
originating summons or petition. That a notice of motion is not an
alternative mode of instituting suits. That Order 4 r 1(i) of the civil
procedure rules provide that every suit shall be instituted by presenting a
plaint to the court or such officer it appoints for this purposes. Su-rule (2)
thereof requires that such plaint shall comply with the provisions of
Orders 6 and 7 of the Civil Procedure rules. The said Orders 6 and 7 of the
Civil Procedure Rules regulate the form and content of the said plaint.
That it is accordingly clear that the only mode of instituting suits is by
plaint. Other modes in specific circumstances provided by law are
Originating Summons or by Petition.

In the case of Jacob Mutabaazi vs. The Seventh Day Adventist

Church HCCS No. 54/2009 it was held that O. 4 r.1 of the CPR requires
ordinary civil suits to be instituted by plaint. That O.5 r.1 provides for
service of summons upon a defendant, against whom a suit has been
instituted, requiring him/ her to file their defence thereto. The time within
which such summons must be filed upon a defendant is stipulated in O.5
r.2 and the mode of service is outlined in rules 8, 9 and 10 of the same
Order.

Every plaint shall contain the following particulars-O7r1.

(a) the name of the court in which the suit is brought;
(b)the name, description and place of residence of the plaintiff, and an
address for service;
(c) the name, description and place of residence of the defendant, so far as
they can be ascertained;
(d)where the plaintiff or defendant is a minor or person of unsound
mind, a statement to that effect;
(e) the facts constituting the cause of action and when it arose;
(f) the facts showing that the court has jurisdiction;
(g)the relief which the plaintiff claims;
(h) where the plaintiff has allowed a set off or relinquished a portion of
his or her claim, the amount so allowed or relinquished; and
(i) a statement of the value of the subject matter of the suit so far as
the case admits.

In the case of Edward Kakuba vs. Kamukama Steven & Stanbic

Bank HCMC No. 16/2007 an application brought by notice of motion
under Art 139 of the constitution, sections 33, 39(1) and (2) of the
Judicature Act, Section 98 of the Civil Procedure Act, and Order 52 of the
Civil Procedure Rules for orders directing the second respondent bank to
transfer a sum from account of the first respondent to applicant’s account.
Court held that the procedure adopted was unusual way of instituting a
suit, contrary to the procedure established by the Civil Procedure Rules.
Further held that Section 19 of the Civil Procedure Act provides that every
suit shall be instituted in such manner as may be prescribed by the rules.
That the Civil procedure rules have an order devoted to institution of suits.
Order 4 r 1 (1) states that every suit shall be instituted by presenting a
plaint to the court or such officer as it appoints for this purpose. The plaint
must comply with the requirements set out in Order 6 of the Civil
Procedure Rules. Further held that it is possible to commence other
actions by plaint, but this must be specifically provided for at law. That
the approach of the applicant in these proceedings does not comply with
any known procedure authorised by law to commence civil proceedings of
the nature he has commenced. That he has commenced proceedings by
way of notice of motion and wants judgement on the basis of such a
proceeding. That the applicant has failed to satisfy court the law authorise
an ordinary action for recovery of money to be commenced, proceeded
with and concluded in this manner, as though it was an interlocutory
matter. The applicant ignored express provisions of the law as to
institution of suits and instead extensively called in aid provisions of the
constitution, the Judicature Act, the civil procedure Act and Civil procedure
rules that are not helpful to the cause.

Summary Procedure-O.36 CPR

O.36 CPR restricts suits to claims based only on contract or land.

Summary procedure is instituted by presenting a plaint in the form
prescribed endorsed ‘Summary Procedure Order XXXVI’ and accompanied
by an affidavit made by the plaintiff, or by any other person who can
swear positively to the facts, verifying the cause of action, and the
amount claimed, if any, and stating that in his or her belief there is no
defense to the suit-O.36 r 2 CPR.

In the Supreme Court case of Post Bank (U) Ltd vs. Ssozi SCCA No.
8/2015 Tumwesigye JSC held that O. 36 was enacted to facilitate
expeditious disposal of cases involving debts and contracts of a
commercial nature to prevent defendants from presenting frivolous and
vexatious defenses in order to unreasonably prolong litigation. That apart
from assisting the courts in disposing of cases expeditiously, O.36 also
helps the economy by removing un necessary obstructions in financial or
commercial dealings. Court further held that there is no doubt that O.36
r2 restricts suits to claims based only on contract or land as spelt out in
rule 2. Therefore, any claim based on a different cause of action would
have to be brought by way of an ordinary suit and not under O.36.

Summary suit to be commenced by a specially endorsed summary plaint

accompanied by a valid affidavit Shelter ltd v Anastazia Nakkazi HCMA No.
113 /2005

[NOTE: Summary Procedure will be covered as an independent

topic in semester II)

Originating Summons-O.37CPR.

Order. 37 CPR; states that the circumstances and categories of persons

who may take out originating summons.

Originating summons is a term of art referring to a limited and special

class of summons and means a motion that originates the proceedings in
question. St Benoist Plantations Ltd V Jean Emile Adrien Felix
[1954] 21 EACA 105

Circumstances under which Originating Summons is Applicable

Originating summons should be adopted where the matters are simple

and straight forward otherwise where the suit relates to disputed facts
and complicated question of law, the plaintiff should proceed in the
ordinary way by plaint.

It is meant to be a simple and speedy procedure and its merits are based
on the fact that there are no pleadings involved or in general no witnesses
the questions for decision being raised directly by the summons itself and
the evidence given by affidavit.

In the case of In Vicent Kawinde T/A Oscar Associates V Kato HCCS

4/2007(unreported) relying on Kulsubai V Abdulhussein ( 1957) EA
699 it was held that: “Such procedure was intended so far as we can
judge to enable simple matters to be settled by the court without the
expense of bringing an action in the usual way, not to enable the court
to determine matters which involve a serious questions.”

In a Zanzibar High Court case, reported in the Eastern Africa Law

Reports, viz; KulusumbaiVrs. Abdul Hussein (1975) EA 708. It was
held that the procedure by Originating Summons was intended to enable
simple matters to be settled by the Court without the expense of bringing
an action in the usual way, not to have Court determine matters which
involve a serious question. Similarly in NakabugoVrs. Serunjogi
(1981) HCB 58, it was held that it is trite law that when disputed facts
are complex and involve a considerable amount of oral evidence, an
Originating Summons is not the proper procedure to take.

In the case of Sentongo Harriet V Esther Gloria Namusisi

(ORIGINATING SUMMON NO. 22 OF 2009) the applicant sought court
to declare the child, OmallaGoria Valentine as an orphan and beneficiary
of the estate of the late Charles Goria as evidenced by Annexture “A”, the
Baptism Certificate and the photographs attached as Annexture “B” on
the court file. Court citing O.37 r 1 CPR held that court was satisfied that
the applicant is the mother of the child, Omalla Valentine, the son of Goria
Charles, deceased, who has brought this application for determination of
whether the child is an orphan and a beneficiary of the estate of his late
father, Goria Charles (deceased) and that this is a fitting case.

Circumstances where Originating Summons is not Suitable Procedure

Originating Summons is inapplicable to complex cases that involve a

considerable amount of oral evidence. Where the matter is contentious
and would need to receive or take evidence to prove or disapprove the
allegations then Originating summons is not applicable. Simple and
speedy procedure and its merits are that no pleadings or witnesses are
involved. Questions for decision are raised directly by the originating
summons and evidence given by the affidavit. [a deponent may however
be cross examined on the contents of the affidavit see Order. 19 R 2 CPR

In the case of Nakabugo Vs Francis Drake Serunjoji [1981] HCB 58:

Held: It is trite law that the disputed facts give complex and involve a
considerable amount of oral evidence; originating summons is not the
best procedure to take. That the procedure of originating summons was to
enable simple matters to be settled by court and take up the matter in the
usual but not to determine the matter involving serious questions.

Official Receiver V Sudhev [1970] EA 243; Originating summons is

not a procedure by which decisions on disputed questions of fact ought to
be obtained; that its ordinarily not advisable to employ an originating
summons for hostile proceedings against a trustee and the procedure is
quite unsuitable where the facts are in disputes the evidence is by way of
affidavit.

In the case of Kaggwa and 10 others HCCS NO. 175 of 1993, arising from
Miscelleneous No. 27/85, J. Ntabugoba held that, since the application for
revocation was based on fraud, it is not enough to rely on O34 r 10, now
O.37 r 1, affidavits allow court to proceed by ordinary suit to prove
allegations of fraud.

In the case of Humphrey Opio vs. JasferOkot, HCMC 051/02 Justice Kagaba
held that, originating summons deal with matters which are not
contentious. That an application to have a grant of Letters of
administration revoked is a contentious matter requiring evidence and an
application by originating summons is wrong. He went on to say, the suit
brought under O34 r 1 now O37 r 1, is for the court to determine whether
or not to determine whether to revoke the Letters of Administration to the
plaintiffs and whether the defendant is guilty of gross misconduct and has
willfully wasted and misappropriated monies and should be ordered to
render an account of the monies due in the estate, that has come to his
possession on account of being an administrator of the estate or Whether
cost of the proceedings be met by the defendant personally. The Learned
Justice held that the procedure in O34 (now 37) of the Civil Procedure
Rules is created and intended to deal with simple and non contentious
matters. That it is intended in situations where there would be no need of
rendering or taking evidence in order to arrive at the relief prayed for. It
deals with reading and interpreting a document on its face value without
resource to supplementary evidence. That where the matter is
contentious and would need to receive or take evidence to prove or
disapprove the allegations in the Originating summons, then the particular
procedure is not applicable.

Originating Summons suitable in construction of a deed, will or other

written instrument O.37 r 6 CPR. Other instrument means instruments
related or similar to deeds or wills. In the case of Testimony Motors Ltd
vs. Commissioner of Customs URA civil Suit No. 4/2011 held that an
analysis of O.37 r 6 discloses pertinent ingredients, the first of which is
that there has to be a person claiming to be interested under a deed or
will or other written instrument. Secondly the originating summons should
be for determination of a question of construction arising under the
instrument in issue. The term instrument encompasses all categories of
instruments mentioned under O.37 r 6 CPR. Thirdly the question of
construction must result in declaration of the right of a person interested
in the construction of the instrument. Fourthly, the person applying the
originating summons for determination of the question must have an
interest in the outcome of the question. That a question of construction
under O.37 r 6 CPR only arises when there is a controversy as to the
meaning, scope, purpose, intention, ambit or application of instrument or
any part thereof. The purpose of the construction is to have the correct
meaning, purpose, scope, intention, ambit etc applied in the interest of
person having an interest in the question of construction. That the words
or other instrument under O.37 r 6 do not include an Act of parliament.
The word has to be construed ejusdem generis as referring to other things
such as wills, deeds and other private documents not statutory
instruments or Acts of parliaments. That the power of court to decide
whether to issue an originating summon is vested in the judge under O.37
r 8 (2) CPR. Where the judge signs the originating summons, the act of
issuing summons is complete. A judge is functus officio as far as the
issuance by signing of the originating summons is concerned. A judge is
however not functus officio for purposes of determining other matters
after issuance of the originating summons for simple reason that the rules
allow the judge to dismiss the originating summons after it has been
issued for not being appropriate in the circumstances. The court asses the
pleadings of both parties to determine this question under O. 37 r 11 CPR
but prior to that court considers the pleadings of the plaintiff only.

In the case of Yesero Mugenyi Vs Registrar of the High court & Ors.
[1977] HCB 80; Words other instrument in rule 5 of order 34[now 37] to
be read ejusdem generic meaning that general words must be restricted
to those mentioned. Other instrument means instruments related or
similar to deeds or wills and a practising certificate fell outside that
category. Procedure adopted in cases requiring determination of a point of
law or construction of certain questions of law and straight interpretation
of statutes.

In the case of Sesam Energetics Ltd v Electricity Regulatory

Authority High Court Civil Suit Originating Summons No. 003 of
2014 the Plaintiff brought suit by Originating summons for the
interpretation of The Electricity (License Fees) Regulations, 2003 SI
20//2003 and The Electricity (License Fees) (Amendment of
Schedule) Instrument 2011 SI 24/2011 to determine their legality.
The issue for determination before the honourable court was whether the
dispute was properly brought to court by way of an originating summons.
Court held that originating summons are envisaged in matters to do with
determination of issues of trust, administration of estates, sale and
purchase of land, mortgage, dissolution of partnerships which limits its
scope since the laid-out categories cannot be by any imagination
stretched and hence no room by the rules themselves is given for other
matters to utilize it. That it seems that the term "instrument
“encompasses all categories of instruments mentioned under Order 37
Rule 6 of the said Rules. The term “written instrument” is construed e
jusdem generis as being of the nature of things such as deeds or wills,
powers of attorney or other written instruments. Court finally held that
the questions raised by the Plaintiffs are not questions of construction of
any other instrument. Secondly, that the words "or other instrument"
under order 37 rule 6 do not include a Statutory Instrument. The
words "or other instrument" purported to be called into action a here
would, have to be construed e jusdem generis as referring to things such
as wills, deeds and other such private documents. It does not refer to a
Statutory Instrument.

 Applicable to relief for vesting orders in clear cases where the purchase
is not contested; R. Hajji Vs Sulaiman Lule: A purchaser of land
sought a vesting order to transfer land into his names and since had
not yet been completed he proceeded under originating summons,
O.37 r 3. Held: That a purchaser of immovable property may take out
originating summons for determination of questions that may arise
irrespective of any claim or questions connected with the fact of sale
not being a question affecting the existing validity of the contract.

 Applicable where the statute requires a proceeding to be originated by

summons, E V E [1970] 604; that where the statute requires a
proceeding to be originated by summons, this means originating
summons. A summon may either be a summons by court to a
defendant to do an act or it may be an application to a court for a
relief.[ Compare Joseph Bayego V Chief Registrar of Titles on the
difference between summons and may summon

 Nature of Originating Summons;

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

that O.34 R.7[Now O.37] CPR required that O.S to be presented ex
parte to a judge in chambers with an affidavit setting forth concisely
the facts upon which the rights to relief sought is founded.

 NB [The application must cite the law under which the applicant is
proceeding though failure to do so or citing the wrong law may not be
fatal if the application is clear as to what remedy is being sought and
there is a law providing for the same. Kawooya V Naava [1975]
HCB.

Procedure & Practice of O.S.

In the case of Mayanja Bosco vs. Kasikururu Louis Okumu & Ors
HC OS. No. 5/2008 held that the procedure for making an application
to court to foreclose a mortgaged property is by O.S under O.XXXVIII R
4 CPR. That rule 8 of the same order provides for practice upon
application of summons

Suits by Petition:
In the Supreme Court case of General Parts (U) Ltd & Haruna
Semakula vs. NPART SCCA No. 9 of 2005 it was stated that it is trite
that in civil matters the only mode of instituting suits are by plaint,
originating summons and petition.

Applicable in Divorce matters

The Divorce Act Cap. 249 and Divorce rules provides for filing a petition for
dissolution of marriage.

Applicable in constitutional petitions.

Article 137(1) & (3) of the 1995 Constitution as well as Rules 3,4,5 and 12 of the
Constitutional Court (Petitions and References) rules. See Mabirizi & Ors vs
Attorney General Consolidated Constitutional Petitions Nos. 49 of 2017, 3 of
2018, 5 of 2018, 10 of 2018 and 13 of 2018.

In the case of Charles Harry Twagira vs A.G & Ors SCCA No. 4/2007 held that
where a claim of redress of a right or freedom is subject to interpretation of the
provisions of the constitution, the claim should be via the constitutional court
under Article 137 by petition. Where the claim is in respect of a right or freedom
that is clearly protected, it should be by a plaint in any other competent court.

Applicable in Insolvency proceedings

See the Insolvency Act, 2011

Applicable in Company causes

See section 247,248 and 249 of the Companies Act No. 1 of 2012. See also
Kigongo vs Mosa Courts Apartments Ltd (Company Cause No. 01 of 2015)

Petitions in Company matters are made under Order 38 of the Civil Procedure
Rules for certain causes or matters specified therein.

Applicable in election petitions

See the Parliamentary Elections Act

See also the Presidential Elections Act.

Petitions either accompanied by affidavits or verified and should be

commissioned; Dr. James Rwanyararee & Anor V AG Constitutional
Appeal No. 1 of 1999 Nelson Sande Ndugo V EC HCT -01-CV-EP
0004/2006; Re Edith Nassaazi Adoption Cause No. 6 of 1996

Suits by Originating Notice of Motion:

Ordinarily an originating motion or originating chamber summons is
prescribed by statute as the procedure for commencing an action in a
court of law. Notices of motions and chamber summons are for
interlocutory applications and cannot commence civil proceedings or suits
unless specifically prescribed by the law under which they are made in
which case they are originating summonses or motions.
See the Judicature (Judicial Review) Rules 2009.
In the case of Kawuki v Commissioner General Uganda Revenue
Authority (Miscellaneous Cause No 14 of 2014) the Applicant filed an
originating Notice of Motion under section 98 of the Civil Procedure Act.
The Applicant's application was made by way of Notice of Motion under
the provision presumably of Order 52 of the Civil Procedure
Rules which prescribes the procedure by notice of motion though it was
not cited. The Applicant's application was by definition an originating
motion because it purported to commence an action in the High Court
when there was nothing pending before the court. It was not an
interlocutory application but purported to be an original action
commencing proceedings. Madrama J (as by then) held that ordinarily an
originating motion or originating chamber summons is prescribed by
statute as the procedure for commencing an action in a court of law. An
action can only be commenced in court in a manner prescribed as
envisaged under the Civil Procedure Act. That ordinarily Order 52 of
the Civil Procedure Rules deals with notices of motion and is
often taken to be for purposes of interlocutory applications. In
fact Order 4 rules 1 (1) of the Civil Procedure Rules provides that:
“Every suit shall be instituted by presenting a plaint in the court or such
officer as it appoints for this purpose. “That the rule strongly suggests that
actions in courts of law are commenced by presenting a plaint to the
prescribed officer appointed for that purpose. Exceptions to
commencement of an action in the High Court by way of a plaint
under Order 4 rule 1 (1) of the Civil Procedure Rules have to be
prescribed by enactment which prescribes the procedure for commencing
an action in the court. Other modes of commencement of actions are
provided for by the Civil Procedure Rules. Section 19 of the Civil
Procedure Act merely provides that a suit may be instituted in any
manner prescribed. Section 2 of the Civil Procedure Act defines a suit
as all civil proceedings commenced in any manner prescribed. The
word prescribed is also defined by the section 2 of the Civil Procedure
Act. It means prescribed by the rules. The conclusion on this point is
that an action has to be commenced in court in the manner prescribed by
the rules or other statutory provision. That it is ordinarily necessary to cite
the rule which prescribes how a particular civil proceeding commenced.
Common law emphasizes the fundamentally of the procedure for the
commencement of proceedings. Non-compliance with the rules for
commencement of proceedings is normally fatal. Suits are instituted
under order 4 rules 1 of the Civil Procedure Rules by presenting a plaint to
the court or such officer as the court appoints. A suit may be presented
under Order 36 by summary procedure (Specially endorsed plaint). A suit
is originated under Order 37 by Originating summons by executors,
administrators, trustees under deed or instrument, and any other person
as creditor, devisee, legatee, heir or cestuique trust (beneficiary), legal
representative of a deceased person or representative of any of them by
assignment. Petitions in Company matters are made under Order 38 for
certain causes or matters specified therein. It also provides that certain
specified causes or matters may be commenced by motion or summons.
That other categories of suits are commenced under statutory provisions
 which prescribe the mode or manner of commencement of an action in
court. That notices of motions and chamber summons are for interlocutory
applications and cannot commence civil proceedings or suits unless
specifically prescribed by the law under which they are made in which
case they are originating summonses or motions. The Applicant’s
application is not an application for judicial review under the Judicature
(Judicial Review) Rules 2009 for an order of mandamus, prohibition or
certiorari or for an injunction under rule 3 thereof. Applications for judicial
review are made by notice of motion in the form specified in the rules.
Furthermore, it is not an application for enforcement of fundamental
rights and freedoms under Article 50 of the Constitution. It is simply
an anomaly not prescribed by any rules or statutory provision.

Form of notice of motion

The law; Read; Order. 52(1) on applications by Notice of Motion supported by a

valid affidavit; Kibuuka Musoke v Tour and Travel Center Ltd HCT -00-CC-
MA-0603-2008; All application to court except as otherwise expressly provide
in the rules shall be by motion citation of wrong law if the procedure is correct is
not fatal.

 Form of notice of motion; The notice of motion has to be in the form in the
schedule; Lyakiya Vs Attorney General The Employer received a written
notice, which he returned to the plaintiff’s advocate for signature. When the suit
was called for hearing, the state attorney contended that no notice had been
given. Held: That a written notice had to be in the form of schedule to which
included space for the signature of the plaintiff or his advocate and an unsigned
notice was defective and the action would be dismissed since the provision is
mandatory.

 But See Katwe Butego Division LGC V Masaka Municipal Council

MHCCS No. 0011/2005 See also S.43 of the Interpretation Act on substance of
statutory forms.

 Signature and seal on Motion;

Joy Kaingana V Dabou Boubou [1986] HCB 59; whereas in practice, the
notice of motion carries signatures of the judge [now registrars] and the seal of
court, these are not a legal requirement and omission doesn’t render the
application fatal.

 The practice of the court is to treat the Notice of Motion as the summons, thus
the Notice of motion ought to be issued by the Registrar/ deputy registrar and
 should be signed and sealed as required by 0.5 r.1(5) CPRs; Read; Dairy
Corporation V Opio [2001-2005] HCB 113

Notice of Motion & Supporting affidavits

 Where the application is grounded on evidence by affidavit, a copy of that

affidavit intended to be used must be served with the motion. In such cases, the
affidavit becomes part of the application and the notice of motion is incomplete
without the affidavit. In the case of Joy Kaingana V Dabou Boubou [1986]
HCB 59; it was held that ‘‘where an application is grounded on evidence by
affidavit, a copy of the affidavit intended to be used must be served with the
action. In such a case, the affidavit becomes part of the application. The Notice
of motion cannot of its own be a complete application without the
affidavit. Therefore, in the instant case the notice of motion alone was not
enough’’

 There is no need for an affidavit where the application rests on a matter of law;
Odongkara V Kamanda [1968] EA 210(U)
 The rules are to be observed but irregularities of form may be ignored or cured
by amendment when they have occasioned no prejudice. In these matters of
form, courts are less strict [see article 126(2)(e) of the constitution. See also
Castelino V Leo Rodrigues [1972] EA 233;

 However, in Notay Engineering Industries V Superior Construction &

Engineering Ltd HCCS No. 702 of 1989, it was held that where the notice of
motion sufficiently makes reference to grounds contained in the affidavit filed
with the notice of motion, by that reference the contents of affidavit were
incorporated in the notice of motion.

 Development Finance company of Uganda Ltd vs Stanbic Bank Uganda

Ltd & Anor cc Misc. application No 88/99; Affidavit accompanying notice of
motion was headed “ affidavit in reply” held that this was a minor irregularity
which was of no consequence ( mere sly of the pen. But they don’t include
where a party fails to attach the lists mentioned in order 6 r 2 CPR . In effect,
non-attachment means a party would have foregone his right to rely on the
witnesses documents or authorities not listed.

 Effect of distinct date on Motion and affidavit; Read Eng. Katwiremu V

Mushemeza Elijah [1997] II KALR 66

 Whether motion must state the grounds on which the application is based;
Mugarula Mukiibi V Colline Hotel Ltd [1984] HCB 35; That the grounds of
application have to be set out in the notice of motion because O.48 r.3 CPR is
mandatory. If the notice of motion doesn’t contain the grounds of the
application, then it is fatally defective. That the affidavit is a separate document
 containing a sworn statement of facts in support of the grounds of the
application.

Notice of Motion and Applicable law.

 Whether the notice of motion must state the law applicable; Although the rules
do not specifically require a notice of motion to state the order and rules or
other law under which it is made, that it is usual practice and should be
followed. Salim V Boyd [1971] EA 550[K]. See Hon. MR. Justice Remmy
Kasule V Jack Sabiiti & 2 Others HCCS No. 230 of 2006

 However, the citing of the wrong law doesn’t render the application invalid, as
courts will treat it as a mere technicality. See Kawooya V Naava [supra]

 Notice of motion under wrong law; Paragio Munyangira v Andrew

Mutayitwako HCMA No. 37/1993 . Application brought under S. 18 CPA and
no rule was cited. Held that the application was defective for failure to cite the
rule under which it was brought to court. See Odonkara vs Kamande (1968) EA
210

In the case of Intraship (U) Ltd Vs- G.N Combine (U) Ltd [1994] VI
KALR 42 having established that the application therein had been
brought under the wrong law Justice Sempa-Lugayizi ruled that the
question should be whether the irregularity is serious enough to prevent
the court from hearing and determining it on its our merit. That the
answer would depend on whether non observance of the procedural rules
in issue would lead to injustice. If it would not, then the Court should be
willing to over-look it otherwise it should not. Chief Justice Benjamin
Odoki in his judgment in Col. (Rtd) Dr.BesigyeKiiza -Vs- Museveni
Kaguta& Electoral Commission SC. Electoral Petition No. 1 of
2001. Observed that a liberal approach is in line with the Constitutional
enactment in Article 126 of the Constitution that courts should administer
substantive justice without undue regard to technicalities. That rule of
procedure should be used as handmaids of justice but not to defeat it. In
Alcon International –vs- KasiryeByaruhanga& Co Advocates [1995]
111 KALR 91 Justice MusokeKibuuka held that procedural defects can be
cured by the invocation of Article 126 (2) (e) of the Constitution. See also
Allen NsubugaNtanaga –vs- Uganda Microfinance Ltd & other HCT-
00-CC-MA-0426-2006.

Whether citation of the wrong law renders the application fatally defective;
DFCU leasing Co. Ltd v Nasole Faridah HCT -00-CC-MA 0074 -2007
Application brought by chamber summons for consolidation of suit under 0.11 r.
1 and 2 CPR SI 75 – 1 – questions whether citation of wrong instrument was
fatal; Held Misquotation of the statutory instrument number could not cause
 any injustice and could not have misled the respondent. Just a minor
technicality capable of being cured by articles 126 of the constitution.

 Wrong Procedure being adopted; Kibuuka Musoke as v Travobase Centre

Ltd HCT -00-CC –MA 308 /2008 applications dismissed because it was
wrongly brought under 0.27 r 10 and 12 CPR and commenced by chamber
summons rather than notice of motion.

 Hajati M Nagawa v Paulo Kajubu & Anor HCCS No.348/1976; Application

by notice of motion under the wrong law; and instead of chamber summons.
Proceedings to be vitiated for noncompliance with rules of procedure only if
injustice is done to parties .Noncompliance with the rules of procedure of the
court which are directory and not mandatory rules would not usually result in
the proceedings being vitiated, if in fact no injustices has been done to the
parties.

 Salime namukasa v Yosefu Bulya (1966) EA 433 UDO Udoma C.J that
before the provisions of section (98) can be invoked, the matter or proceedings
concerned must have been brought to the court, the proper way in terms of the
procedure prescribed by the rules .

 The applicable test is whether the irregularity is serious enough to prevent the
court from hearing the application and determining it on its own merit. If the
non-observance of the procedural rules in issue would not lead to injustice,
court should be willing overlook it, otherwise should to sanction it would be to
uphold technicalities; Alcon international v Kasirye Byaruhanga and Co
Advocates 1995 ) III KALR 91 – see Intra ship (U) Ltd V GM combined
Ltd 1994] VI KALR 42

In the case of Silver Springs Ltd vs. UMEME Ltd HCMA No. 291/2013 the
Court relied on the case of Saggu vs. Road Master Cycles (U) Lrd CACA No.
46/2000 that a court should not treat any incorrect act as a nullity with the
consequence that everything founded thereon itself is a nullity unless the
incorrect act is of a fundamental nature. That the applicant here cited a wrong
law and failed to bring the application by chamber summons, however, no
injustice has been shown to have been occasioned to the parties. Therefore, the
delusionary conduct by the applicant is not fundamental nature to warrant court
dismissing the appeal.

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

 Whether Notice must be accompanied by summary of evidence; O.6 r.1 requires

pleadings to be accompanied by a summary of evidence; the question is
whether failure to do so in an application by notice of motion is fatal; Sule
Pharmacy Ltd V The Registered Trustees of the Khoja Shia Hana Shari
Jamat HCMISC. APPL 147/1999. It was held that notice of motion is a
 pleading and should be accompanied with the named attachments. The
application of O.6 r.1 in this case becomes a mere moot because of the case
requires no witnesses, documents or even authorities except O.48 r.3 [now 52
r.3]. Ogoola P.J; that there are special circumstances that are recognized with
CPR in which the rule does not and cannot apply with full force and effect.
Noncompliance is not fatal.

 Richard Mirirumbi; Order 6 r .2 CPR was intended to avoid a situation in which

parties ambush their opponents with matters not contemplated

 The requirement that pleading shall be accompanied by a list of authorities is

subject to their being necessary for that pleading. What is to be relied upon is
what should be listed hence where there are no witnesses, no documents nor
authorities to rely on, there is no logic to list NIL though if they are ant not
listed, the applicant risks not being allowed to rely on them. Rajab Kyangwa v
Pallis Town council and Anor HC M. App. No 19 of 2000 Maniraguha J
held

 Noncompliance with the equivalent of order 6 r2 rendered an application

improperly filed before court and could be dismissed Richard Mwirumbo v
Jada Ltd HCCS NO. 978/96
Suits by Originating Chamber Summons:
 A chamber summons which is the procedure prescribed for commencing a
matter under a stature is an originating chamber summons where there is
no suit in existence.
In the case of Orient Bank Ltd v Avi Enterprises Ltd HC CIVIL
APPEAL NO 002 OF 2013 the issue was whether the Respondents
appeal is properly before court? Madrama J (as by then) held that an
appeal under the Advocates (Taxation of Costs) (Appeals and References)
Regulations is commenced under regulation 3 (1) prescribes that it shall
be by way of summons in Chambers supported by affidavit which are set
forth in paragraphs numbered consecutively particulars of the matters in
regard to which the taxing officer whose decision or order is the subject of
appeal is alleged to have erred. In other words it is an originating chamber
summons that commences an action in the High Court by way of appeal
for the first time and it is not interlocutory. That Spry VP of the Court of
Appeal in Boyes v Gathure [1969] 1 EA 385 held that a chamber
summons which is the procedure prescribed for commencing a matter
under a stature is an originating chamber summons where there is no suit
in existence. He held as follows at page 386: “With great respect, I
think the learned judge was wrong and I think much of the
confusion arises from the heading “Chamber Summons” which is
commonly used for interlocutory summonses in Kenya but not, I
think, in England; certainly it does not appear in the forms
contained in the Annual Practice or Atkin’sEncyclopaedia of Court
Forms and Precedents. In fact, both originating and interlocutory
summonses are heard, at least in the first instance, in chambers,
and “chamber summons” is not a term of art to distinguish the
one from the other. In the present case, where the Respondent
desired to move the court, where no proceedings were in being
and where the Act required him to proceed by summons, such a
summons could only, as I see it, be originating.” And at page 387:
“As I see it, procedure by way of summons may be originating or
interlocutory and when s. 57 of the Registration of Titles Act
speaks of applying “by summons”, it means by originating
summons, if there is no suit in existence, or by interlocutory
summons, if there is.” Further held that the appeal is a "suit" been
commenced for the first time, where there is no suit pending and the
chamber summons under the Advocates (Taxation of Costs) (Appeals and
References) Regulations and particularly regulation 3 (1) thereof is an
originating summons in Chambers.
 Parties are summoned in chambers where the application is heard.
 See O.41 on injunctions[ compare requisites for notice of motion]

 When to proceed by chamber summons or Notice of motion; Chamber summons

is only resorted where the law expressly provides for the same; Where a party
proceeds by chamber summons rather than notice of motion, that renders the
application incurably defective; Salume Mukasa V Yozefu Bukya [1966] EA
433[s.98 could only be resorted to if the procedure was correct and that rules
of procedure were not made in vain but to regulate the practice of the court;
 Kibuuka Musoke V Tour & Travel Centre Limited HCMA No.603/2008;
Kibuuka Musoke AS V Travobase Center Ltd HCMA No.308/2008;
Nasanga V Nanyonga [1977] HCB 319; Read Article 126(2) (e)

 Chamber summons to be supported by valid affidavit and summary of evidence

especially where essential documents are referred to where affidavit is not
enough, compliance with 0.6 r 1(b) is a must and non compliance renders the
application liable to be struck off Jetha Bros Ltd v Mbarara Municipal
Council .

 NB: Notice of motion and chamber summons relate to interlocutory

applications; However, note originating motion and originating chamber
summons;[miscellaneous causes rather than misc. app;ication; Salume
Mukasa VYozefu Bukya [1966] EA 433

Suits by Other modes include:

a) Memorandum of claim in the industrial court

b) Complaint before the Labour Officer
c) Statement of claim, leffer
1. LDC V Edward Mugalu & Anor. [1990-91] KALR 103
2. Major Roland Kakooza Mutale Versus AG & IGG [2001-20051 HCB
110
3. Section 39(2) Judicature Act.
4. Prof. Oloka Onyango and Others and Amama Mbabazi, Yoweri
Museveni and EC Supreme court 2016

Pre-Entry Exam 2012/2013

Qn. 50 A Plaintiff filed an application by motion instead of summons in
chambers as prescribed by the relevant rules. Is the mistake fatal? Give a
reason for your answer

TOPIC VII
Issue of Summons: O.5 CPR:

 What is a summon?

This is an official order of court requiring a person to attend court either to

answer a claim/ charge or give evidence. It is issued by court with a
signature and seal of the court.

 Types of Summons:
 Ordinary Summons: O.5: Issued by a court pursuant to a party
presenting a summons and it directs a defendant to file a defence in
court within 15 days if he wishes to defend the claim of the plaintiff.
 Summons in a summary suit: O.36 r 4: Document issued by court in
cases where the plaintiff has filed a summary suit. It requires the
defendant to apply for leave of court to defendant the suit within 10
days after service.[see distinction between ordinary summons and
summons on a summary plaint] Read Mugume & Anor. V
Akankwasa [2008] HCB 159
 Originating Summons: Order. 37 CPR; states that the
circumstances and categories of persons who may take out originating
summons.
 Notice of Motion; The practice of the court is to treat the Notice of
Motion as the summons, thus the Notice of motion ought to be issued
by the Registrar/ deputy registrar and should be signed and sealed as
required by 0.5 r.1(5) CPRs; Read; Dairy Corporation V Opio
[2001-2005] HCB 113. Order. 52(1) CPR applications by Notice of
Motion are supported by a valid affidavit. Ordinarily an originating
Notice of motions summons is prescribed by statute as the procedure
for commencing an action in a court of law. See Kawuki v
Commissioner General Uganda Revenue Authority
(Miscellaneous Cause No 14 of 2014)
 Chamber summons; Parties may be summoned in chambers where
the application is heard. See O.41 on injunctions. Chamber summons
which is the procedure prescribed for commencing a matter under a
stature is an originating chamber summons where there is no suit in
existence. See regulation 3 (1) of the Advocates (Taxation of Costs)
(Appeals and References) Regulations. See also section 24 RTA.
 Hearing notice; requires a party to attend court on a particular day if
he wishes to take part in the proceedings. The notice must be served
on the defendant. Ahmad & Associates V Bauman (U) Ltd CACA
46/2000; The applicant did not serve the hearing notice for leave to
appear and defend on the defendant in a summary suit. Held; that the
applicant didn’t know of the hearing date of the application to appear
and defend in a summary suit. Thus he or his counsel could not
prosecute it. Court allowed the appeal and remitted the application to
the High court to be heard on its merits before another judge. Read;
Edison Kanyabwera V Pastori Tumwebaze[2001-2005] HCB 98
for the principle that the rules applicable to service of summons apply
to hearing notices
 Taxation Hearing Notice: Issued against the Defendant in taxation
matters to attend taxation proceedings consider the Advocates
Remuneration and Taxation of Costs Rules
 Witness summons: O.15 CPR. The summons requires for attendance
of a person to give evidence or produce a document-O.15 r 5 CPR. O.5
CPR regulating proof of the service of summons applies-O.15 r 8CPR.
 Notice of presentation of petition: A notice of presentation of a
petition is issued pursuant to the filing of a petition and it requires a
person to enter appearance by filing an answer to the petition or an
affidavit in opposition within the time stipulated therein or by the date
indicated.
 Validity of Summons:
O.5 r 1(5) CPR requires every summon to be signed by the judge or
such officer as he or she appoints, and shall be sealed with the seal of
the court. E.A Plans Ltd V Roger Allan Birkford-Smith [1971] HCB
225; According to O.5 r.1 (5) CPR a summon is a command from the
court and must therefore always be signed by the court itself or such
officer to whom the court delegates such power. An advocate was not
one such officers and summons signed by him thus lacked any force of
law.
 The practice of the court is to treat the Notice of Motion as the
summons, thus the Notice of motion ought to be issued by the
Registrar/ deputy registrar and should be signed and sealed as
required by 0.5 r.1(5) CPRs; In the case of Dairy Corporation V
Opio [2001-2005] HCB 113 the applicant M/s. Diary Corporation
sought by notice of motion for orders that execution of the taxation
orders be stayed pending hearing of substantive notion of motion.
When the application came up for hearing counsel for the
respondent raised a preliminary objection to the effect that the
motion was incompetent because it was not signed and sealed by
the registrar. Court held that in practice, a notice of motion is
treated as summons and O.5 r 1(5) CPR requires that every
summons be signed by the judge or such officer as appointed and it
is sealed with the court seal. A notice of motion lacking these
essential features is a nullity. The reason for this requirement is to
show that fees have been paid and showing that it is issued under
proper authority and out of proper office.

 In the case of Kaur Vs City Auction Mart:[1967] EA 108(U) by

notice of motion an application was made to vacate a caveat lodged
against the land. A preliminary objection by the respondent was that
a notice of motion was a suit within the meaning of s.2 CPA which
should have been signed and sealed by the court under O.5 r 1(5).
Court held that the requirement of signing and sealing the summons
under O.5 r 1(5) CPR are mandatory and failure to comply with them
renders the summons a nullity.

 In the case of Nakitto & Brothers Ltd vs. Katumba [1983] HCB
70, held that a notice of motion falls within the meaning of a suit.
That a notice of motion not signed by the judge and sealed by the
court doesn’t fall within O.5 r 1(5) CPR and therefore the application
was a nullity.
 The learned judge in Hussein Badda v Iganga District Land
Board and Others Misc. Applic. No. 479 of 2011 Zehurikize, J
dealing with applications for interim orders and temporary
injunctions held that an application is valid only when it has been
signed by the judge or such officer as he or she appoints and it is
sealed with the seal of the court within the meaning of Order 5 rule
1 (5) of the Civil Procedure Rules. He referred to Nakito Brothers
Ltd v Katumba [1983] HCB 70. He pointed out at page 12 of his
 ruling that:- “An application is by its nature a summons
issued by court requiring the respondent to attend court on
the appointed date and time. It becomes valid only when it
has been given a date, signed and sealed. It is after the
above has been done by the court that the application is
capable of validity giving rise to another application”.

 There is a rebuttable presumption that a person signing a summons

as acting Deputy Chief Registrar has been duly authorized. A.
Bauman and Co. (U) Ltd Vs Nadiope:[1968] EA 306(U);

 That effect of an incorrect seal; the affixing of an incorrect seal of

one court on a document instead of the seal of another court is
mere irregularity and does not render the summons a nullity. In
NanjibhaiPrabohusdas& Co. Ltd vs Standard Bank Ltd [1968]
EA 670 that: “The court should not treat any incorrect act as
a nullity with the consequence that everything founded
thereon is itself a nullity unless the incorrect act is of a
most fundamental nature. Matters of procedure are not
normally of a fundamental nature.”

 Purpose of summons;
O.5 r 1(1) CPR provides that when a suit has been duly instituted a
summons may be issued to the defendant—

a) Ordering him to file a defence within the time specified therein.

b) Ordering him to appear and answer the claim on the day specified
therein
The function of summons is to fix the day for appearance. Read; Re.
Pritchard (1963] ALLER 873
 Service of Summons
 Section 20 CPA provides that where a suit has been duly instituted,
the defendant shall be served in the manner prescribed to enter an
appearance and answer the claim.

 O.49 r 1 requires every process issued under the civil procedure Act
to be served at the expense of the party at whose behalf it is issued
unless court otherwise directs. O.49 r 2 requires all orders, notices
and documents required by the civil procedure Act to be given to or
served on any person to served in the manner provided for the
service of summons.
 Besides filing a written statement of defense, the defendant needs
at the same time to proceed and serve the plaintiff with a duplicate
of the same at the plaintiff’s address as required under the rules-O.8
r 19. Service of an interlocutory application to the opposite party
shall be made within fifteen days from the filing of the application,
and a reply to the application by the opposite party shall be filed
 within 15 days from the date of service of the application and be
served on the applicant within 15 days from the date of filing the
reply-O.12 r 3(2); O 51 r 9 such time may be enlarged by consent of
the parties under O 51r 7 CPR.
 Purpose and Rationale of Service of summons.
 Effective service of summons must make the defendant aware of
the suit.
 In the case of Geoffrey Gatete and Another v William Kyobe
SC Civil Appeal No.7 of 2005 the judgment of the court was
delivered by Mulenga JSC with concurrence of the rest of the panel
of Supreme Court Judges that held that there can be no doubt that
the desired and intended result of serving summons on the
defendant in a civil suit is to make the defendant aware of the suit
brought against him so that he has the opportunity to respond to it
by either defending the suit or admitting liability and submitting to
judgment.
 In the case of David Ssesanga v Greenland Bank Ltd
HCMisc.App.No.406 Of 2010 Madrama J (as by then) stated
that ‘‘whether or not there was proper service is a fundamental
question affecting the right to be heard and should be tried first. It
deals with the basic principles of natural justice, which principle is
one of fundamental rights and freedoms enshrined under article
28 (1) of the Constitution of the Republic of Uganda. Clause 1
thereof provides that: “In the determination of civil rights and
obligations or any criminal charge, a person shall be entitled to a
fair, speedy and public hearing before an independent and impartial
court or tribunal established by law.”The question of fair hearing
includes an element of a right to be heard in the matter. The
common law adage for this is “no one should be condemned
unheard”. It is not only the right to be heard but a right to a fair
hearing’’. The judge relied on the case of Geoffrey Gatete and
Angela Maria Nakigonya versus William Kyobe Supreme
Court Civil Appeal No. 7 of 2005 and held that there was no
effective service on the applicant because he was not aware of the
suit. He only became aware when he was served with notice to show
cause why a warrant of arrest should not issued against him.

 Time within which to serve Summons and effect of expired

summons.
 O.5 r 1(2) CPR provides that service of summons shall be affected
within twenty-one days from the date of issue; except that the time
may be extended on application to the court, made within fifteen days
after the expiration of the twenty-one days, showing sufficient reasons
for the extension. O.5 r 1(3) is to the effect that where summons have
been and (a) service has not been effected within twenty-one days
from the date of issue; and (b) there is no application for an extension
of time; or (c) the application for extension of time has been dismissed,
the suit shall be dismissed without notice.
 In the case of Stop and See (U) Ltd v Tropical Africa Bank Ltd HC
MISC. APPLICATION NO 333 OF 2010 Madrama J stated that
generally time is reckoned from the time of filing of a plaint and the
issuance of summons by the
court. A summons should be served on a defendant within 21 days
from issuance.

 In the case of Western Uganda Cotton Co. Ltd V Dr. George

Asaba & 3 Ors. HC CIVIL SUIT NO. 353 OF 2009 a preliminary
objection was raised that the counterclaim filed against the plaintiff
and other counter defendants was not duly served in accordance with
the law and therefore should be dismissed with costs. Counsel stated
that he accessed a copy by himself from the court records and filed a
response having learnt about it during the mediation process when
counsel for the defendant referred to it. The issue for court to
determine was whether failure to serve the counterclaim on the
plaintiff was fatal so as to warrant striking off the counterclaim as
against the plaintiff. Court stated that the object of service of a
summons in whatever way it may be effected as stated in Mulla, The
Code of Civil Procedure, Volume 2, 17 th Edition at page 231 is
that the defendant may be informed of the institution of the suit in due
time before the date fixed for the hearing. Court held that since no
prejudice or injustice has been occasioned to the plaintiff, the omission
to serve can be treat as an irregularity which for purposes of Article
126 (2) (e) of the Constitution can be safely ignored to ensure that
substantive justice is done. Court was persuaded by the holding in the
Kenyan case of PragjiBhagwanji and Company Ltd V Michael
Krags and Others, Civil Suit No. 338 of 1995, to the effect that;
“The service of a process becomes effective when a party who is
targeted by that service becomes aware of the existence of that
matter, which he has to respond to”. That the object of service in this
case was achieved by counsel for the plaintiff’s action. As regards
service on the other three defendants to counterclaim who were not
parties to the original suit the situation was quite different. Court held
that the rules for regulating service of a summons was found under
Order 5 of the CPR where rule 1 (2) thereof provides that service of
summons issued under sub-rule (1) shall be effected within twenty one
days from the date of issue. That this rule allows extension of time
upon an application to the court made within fifteen days after the
expiry of the twenty one days. That the procedure for this application is
by summons in chambers as provided in rule 32 of Order 5. That
conclusion was still in line with what the Supreme Court had earlier
stated in the case of EAGEN v EAGEN S.C.C.A. No. 2 of 2002 that where
the legislature prescribes something in mandatory language the
relevant provision is imperative and obligatory. Non-compliance would
affect the validity of the act done in disobedience of them. That Order
5 r 1 (2) is couched in a mandatory language and Order 5 r 1 (3) clearly
provides for sanction where summons are not served within twenty one
days and there has been no application for extension of time. The
 sanction is dismissal of the suit without notice. That this makes Order 5
r 1 (2) mandatory because failure to comply with it has consequences.
That Counsel’s prayer that the court exercises its power under sections
96 and 98 of the CPA to validate the service is misconceived in view of
the finding, and recourse to Article 126(2) (e) of the Constitution in the
circumstances of the case was an over stretch and an abuse of this
well intended provision. That the reasoning of the Supreme Court was
instructive in UTEX Industries v Attorney General S.C.C.A. No. 52 of
1995 which was adopted in Kasirye Byaruhanga & Co. Advocates v
UDB S.C.C.A. No. 2 of 1997 to the effect that; “A litigant who relies on
the provisions of article 126 (2) (e) must satisfy the court that in the
circumstances of the particular case before the court it was not
desirable to have undue regard to a particular technicality. Article 126
(2) (e) is not a magic wand in the hands of defaulting litigants”.

 In the case of Mulaggussi v Katabalo HC Misc. APPEAL No. 006 of

2016 the respondent raised a preliminary objection against the
application that it violates the provisions of O.49 r 2 CPR. The
contention was that summons were issued on 20 th October 2016 and
served on the respondent on the 23 rd November 2017. Court relied on
the supreme court case of Kanyabwera versu Tumwebaze (2005)
2 EA 86, that what the rule stipulates about service of summons,
applies equally to service of hearing notices and held that the
provisions means that the reference to the procedure of service of
summons under O.5 r 1(2)(2) of the CPR applies to service of hearing
notices and applications for purposes of the provisions relating to the
issuance and service. Court further held that chamber summons were
duly endorsed by the registrar on the 20 th day of October 2016 and
that’s the date for which computation of time for service began to run.
That the application raises a specific provision of the law which must
be observed and cannot be circumvented using the provisions of
Article 126 of the Constitution. The provisions of O.5 r 1 are couched in
mandatory terms and that has been the opinion in Orient Bank Ltd
versus Avis Enterprises HCCA No. 2/2013, and followed in Lubega
Robert Smith & Ors versus Walonze Malaki; Civil Appeal No. 036/2016 ,
all the above cases followed the supreme court in Kanyabwera
versus Tumwebaze (2005) EA 86 which held this rule is of strict
application. Court further held that service effected out of the
prescribed time without seeking extension, renders the application
liable for dismissal without notice and thus application is incompetent
and ought to be dismissed.

 Where a defendant/respondent is not served but appears, the court

may exercise its discretion and allow the suit to proceed.
 A notice of Motion is served in manner provided for service of
summons under the provisions of O.5 which governs issue and service
of summons. In the case of Century Enterprises Ltd v Greenland
Bank (in Liquidation) HCMA 0916 of 2004 a preliminary
application was raised that in an application filed under O.33 (now
O.36) r 3 and 4 CPR the applicant was obliged to serve the respondent
with notice and supporting affidavit within the time stipulated under
O.5 r 1. That the Notice of motion issued on 8/12/2004 and served on
3/2/2005 was out of time. He invited court to have it struck out and
order that judgment be entered for the plaintiff as prayed in the
summary plaint. Court held that under O.33 (now O.36) r4, all that the
Defendant has to show is that there is a triable issue of fact or law. The
defendant can do so by filing an application for leave to appear and
defend the suit. The application takes the form of Notice of Motion.
That there is no stated procedure under that order for service of such
application on the opposite party. However, under O.45 r 2, all such
orders, Notices and documents shall be served in manner provided for
service of summons. That it is noteworthy that the word used in the
order is ‘shall’ and in the absence of any other rule to the contrary, this
takes us to O.5 which governs issue and service of summons. Court
further held that the time frame stipulated in 0.5 r 1 were certainly the
mischief, or the unsatisfactory state of affairs, which the amendment
to the Rules in 1998 was meant to remedy. That it was targeted at
people who after getting summons for service on the opposite party
just went to sleep thereby contributing to unnecessary build up of case
back log. That it was imperative that in order to comply with the rules,
an application had to be made to court within 15 days from the expiry
of the 21 days, showing sufficient reasons, to extend the time within
which to serve the notice of motion. That the rules of procedure enjoin
court to administer law and equity concurrently and that Article 126 of
the constitution enjoins courts to administer substantive justice
without undue regard to technicalities, however, the law did not intend
to do away with the rules of procedure and it was not meant to be a
magic wand in the hands of defaulting litigants and should not be used
to side step rules of procedure. (Utex Industries Ltd vs Attorney
General SCCA No. 52/95). However relying on the case of Nassanga
vs Nanyonga [1977] HCB 318, court held that the Civil Procedure
rules are a guide to the orderly disposal of suits and a means of
achieving justice between the parties and the same should not be used
to deny a party desirous of contesting. That while there is merit in the
respondent’s point of law regarding service of summon, court will
hesitate to allow this procedural lapse to over shadow the substantive
concern of the applicant and in the spirit of Article 126(2)(e) of the
constitution, court was inclined to disregard the irregularity. That while
there is, on the one hand, the necessity for the rules to be followed,
there is, on the other hand, the need for the courts to control their
proceedings and not to be unreasonably inhibited by the rules of
procedure. That the idea is that the administration of justice should
normally require that the substance of all disputes be investigated and
decided on their merits, and that errors and lapses should not
necessarily debar a litigant from the pursuit of his rights (Banco
Arabe Espanol vs Bank of Uganda SCCA No. 8/1998) That while
lack of adherence to the rules has been noted with the seriousness it
deserves, the circumstances of the case require that the same be
 overlooked for the sake of administering the greater interests of
justice.

 Who can Serve Court Process

 O.5 r 7 civil procedure rules provides that where the court has issued a
summons to a defendant it may be delivered for service to any person
for the time being duly authorized by the court, to an advocate or an
advocate’s clerk who may be approved by the court generally to effect
service of process; or it may be sent by post or messenger to any
magistrate’s court having jurisdiction in the place where the defendant
resides.

 Any person authorized by court or advocate or advocates clerk may

effect service of court process. Not any clerk can effect service. An
advocate clerk needs special permission of court. Mugume & Anor vs.
Akankwasa [2008] HCB 159 [See procedure of being approved as a
court process server/clerk]
Rd Abdul Ssozi versus Post Bank Uganda Limited CACA No. 12/2010
(2015)

 Mode Of Service Of Summons:

 O.5 r 8 of the civil procedure rules provides for the mode of service.
Service of the summons shall be made by delivering or tendering a
duplicate of the summons signed by the judge, or such officer as the
judge appoints for this purpose, and sealed with the seal of the court.

 The duplicate is to be delivered and acknowledgement of service to be

given. When a duplicate has been delivered and tendered to the
defendant personally, his agent of the defendant or such other person
is required to acknowledge the original summons provided that if the
defendant or his agent refuses to sign, court may declare such
summons to have been served. The requirement that a duplicate be
delivered or tendered is mandatory and if not complied with, the
service is bad. In the case of Erukana Kavuna V Metha [1960] 305
(U) held that the requirement that a duplicate be delivered or tendered
is mandatory and if not complied with the service is bad.

 O.5 r 14 of the civil procedure rules provides that where a duplicate of

the summons is duly delivered and tendered to the defendant
personally or an agent or other persons on his behalf, the defendant or
such agent or other person shall be required so to endorse. This rule is
mandatory and non compliance means that service has not been
effected-Narshidas M Mehta and Company Limited v Baron Verheyen
(1956) 2 TLR 300.
  Items to accompany summons
 O. 5 r 2 Summons shall be accompanied by a copy of the plaint, a brief
summary of the evidence to be adduced, a list of witnesses, a list of
documents and a list of authorities to be relied on; except that an
additional list of authorities may be provided later with the leave of
court.
 In the case of Valery Alia Vs Alionzi John (HCCS NO. 157 OF 2010)
Madrama j (as by then) held that service of summons under order 5 of
the Civil Procedure Rules is not satisfied by service of the summons
signed by the registrar of the court only. Certain items are meant to
accompany the summons. The summons is an order of the court
requiring the defendant to file a defence within the prescribed time of
15 days and warning of the consequences of non-compliance with the
filing of a defence. It is a fundamental rule of justice that before
anybody can defend himself or herself, he or she has to be notified of
the particulars of the claim against him or her. Article 28 of the
Constitution of the Republic of Uganda provides that in the
determination of civil rights and obligations or any criminal charge, a
person shall be entitled to a fair, speedy and public hearing before an
independent and impartial court or tribunal established by law. Further
held that non-compliance with order 5 rule 2 of the Civil Procedure
Rules renders the proceedings an irregularity.
 The summons in substituted service however should indicate that the
defendants will obtain copy of the plaint at the registry of the court. In
the case of Jessy Technical Services Ltd & Anor v Ajay Industrial
Corporation Ltd &Anor(MISC. APPL. NO. 0617 OF 2012 AND
MISC. APPLI. NO. 616 OF 2012) Madrama j held that as far as the
substituted service is concerned, my decision in Valery Alia versus
Alionzi John High Court civil suit number 156 of 2010 refers. In
that case I held that summonses issued under order 5 rule 1 of the Civil
Procedure Rules were an order of the court. That Order 5 rule 1 (1) (a)
of the Civil Procedure Rules is explicit that the summons shall contain
an order for the defendant to file a defence within the time to be
specified in the summons. Secondly Order 5 rule 2 provides that every
summons shall be accompanied by a copy of the plaint, a brief
summary of the evidence to be adduced, a list of witnesses, a list of
documents and a list of authorities to be relied on. Rule 2 make it
imperative that the summons shall indicate the time within which the
defendant shall file a defence and secondly what must accompany the
summons. In the case of Valery (supra) the summons were advertised
just as in this case but were not accompanied by the items specified by
rule 2 of the Order. Consequently, in that case it was found that there
was no proper service because there was no plaint and attachments
thereto accompanying the summons advertised in the newspapers.
More so the summons advertised advised the defendants that there is
"copy of the plaint attached hereto". However, no copy of the plaint
was attached to the summons advertised in the newspaper. That
apparently attaching a copy of the plaint may be expensive to litigants.
 However, it would be a compromise of the law not to attach the plaint
to the summons as provided by the mandatory provisions of order 5
rule 2 of the Civil Procedure Rules. Perhaps, and this is not indicated in
the forms which are prescribed, the summons should indicate that the
defendants will obtain copy of the plaint at the registry of the court.
This seems to be the practice.
 Service on the Defendant in Person
 O.5 r 10 civil procedure rules provides for service to be on defendant in
person or his or her agent. Wherever it is practicable, service shall be
made on the defendant in person, unless he or she has an agent
empowered to accept service, in which case service on the agent shall
be sufficient.
 In the case of Jessy Technical Services Ltd & Anor v Ajay
Industrial Corporation Ltd & Anor (Misc. Appl. NO. 0617 OF
2012 and Misc. Appli. No. 616 of 2012) Court held that there was
no personal service on the second applicant as prescribed by order 5
rule 10 of the Civil Procedure Rules. That the rule provides that service
shall be effected personally on the defendant or on an agent duly
empowered to accept service. Rule 10 reads as follows: "10. Service to
be on defendant in person or on his or her agent. Wherever it is
practicable, service shall be made on the defendant in person, unless
he or she has an agent empowered to accept service, in which case
service on the agent shall be sufficient." Court further held that where
it is not practicable to effect service on the defendant personally, it
may be made on an agent empowered to accept service. The words
“empowered to accept service” is read in the context of recognized
agents as prescribed by order 3 of the Civil Procedure Rules. An
empowered agent is an agent recognized under order 3 of the Civil
Procedure Rules. Court further held that the receptionist was not
proved to be an empowered agent of the second applicant/defendant
by the affidavit of service of the process server. It was not proved that
the 2nd Applicant empowered the receptionist at the offices of the first
Applicant to accept service on his behalf. Acceptance of service in the
context of order 3 rule 1 is an "act" which is required in any court to be
done by a party. This is because service has to be made on the
defendant personally and therefore acknowledgement of service is an
act to be done by a party i.e. the defendant. Consequently the
definition of recognized agents by order 3 rule 2 of the Civil Procedure
Rules is applicable. In that rule agents are defined as persons holding
powers of attorney authorizing them to make appearances and
applications and do such acts on behalf of the parties. Secondly it
means persons carrying on trade or business for and in the names of
the parties not resident within the local limits of the jurisdiction of the
court. Finally order 3 rule 5 of the Civil Procedure Rules provides that
besides the recognized agents described in rule 2 of the order, any
person residing within the jurisdiction of the court may be appointed an
agent to accept service of process. Order 3 rule 5 (2) specifically
provides that the agents so appointed shall be either special or general
and the appointment shall be by an instrument in writing signed by the
 principal and a certified copy of which shall be filed in court. That the
receptionist described by the process server does not fit the
description of an agent authorized or empowered to accept service by
the second respondent. Court finally held that there was no personal
service on the second applicant/defendant as prescribed by the rules.
In practical terms therefore the registrar was right to advise service of
summons by substituted service as far as the second applicant is
concerned.

 The function of summons is to fix the day for appearance and must be
served on the defendant in person Re. Pritchard (1963] ALLER 873 .

 Proper effort must be made to effect personal service; Katukulu V

Transocean[1974] 276 (CA-U)Held; That service of a plaint and
summons to enter appearance should be effected on the defendant
personally and where it is nor possible or practicable, the plaintiff
should always proceed by way of substituted service in accordance
with the CPRs. The fact that the defendant was never served personally
with court process was sufficient to show that they had never served
the summons.

 Service on several defendants.

 O.5 r 9 civil procedure rules provides that where there are more
defendants than one, service of the summons shall be made on each
defendant. In the case of EAGEN V Ntende [1979] HCB 227; Held
that since the plaintiff had decided to join all the six defendants, the
plaintiff brought upon himself the duty to effect service on each of
them. Failure to serve all of them was a good cause to set aside the
decree

 Service on Agents other than the Defendant

 O.5 r 11: Service must be effected on the person upon whom the
summonses are directed unless he has an authorized agent. Service on
an agent is effectual. Erukana Kavuma Vs Metha[supra] The
process server for the plaintiff stated that he did not find the defendant
at his shop and served the summons on the defendant’s wife and
obtained an exparte judgment which was challenged. Held: That O.5 r
9 and O.5 r 11 was not complied with because the duplicate copy of
the summons was tendered or delivered to the defendant’s wife,
service was therefore bad. The process server did not inquire as to the
address of the defendant in India and for how long he will stay there.
 In the case of Jas Projects Ltd v Emiru Angose HCT - CS - 280 –
2005 the issue was whether there was indeed effective service of
summons on the applicant. Court held that Order v of the civil
procedure rules (CPR) as amended provides order v r 11. “Wherever it
is practicable, service shall be made on the Defendant in person,
 unless he has an agent. Empowered to accept service, in which case
service on such agent shall be sufficient”. The rule of thumb here
therefore is that service of summons should be effected on the
Defendant in person. Where service on the Defendant is not practicable
then service should be on the Defendant’s agent empowered to accept
service. That in this case there was no service on the Defendant in
person but rather on a receptionist. Court further held that in order to
have effected service upon the said receptionist, the receptionist would
not only have to be the agent of the Defendant but a recognized one at
that within the meaning of order III r 1 &2; and in particular rule 2
thereof which states; “The recognized agents of parties by whom
such… acts may be made or done are:- (a) Persons holding Powers of
Attorney authorizing them to make… and do such acts on behalf of
parties; (b) Persons carrying on trade or business for and in the names
of parties not resident within the local limits of Jurisdiction of the
Court… etc (not relevant to this case)”. That the evidence before Court
does not suggest that the service of summons on the
Applicant/Defendant through the receptionist was that by way of an
authorized agent, indeed there is no mention of any Power of Attorney
to that effect. Court further held that where service cannot be effected
in the ordinary way then the Plaintiff or his Counsel should apply for
substituted service rather than go ahead with an ineffective or
desperate method of service to remain within time. That there was no
effective service.

 Service on an Advocate with Instructions.

 O.5 r 10, 11 civil procedure rules recognize service on agents.
Summons may be issued to an advocate duly instructed. An advocate
by virtue of his or her representation of a party in court proceedings is
entitled to accept service on behalf of the client. O.3 r 4 civil procedure
Act provides for Service of process on advocate. Any process served on
the advocate of any party or left at the office or ordinary residence of
the advocate, whether the process is for the personal appearance of
the party or not, shall be presumed to be duly communicated and
made known to the party whom the advocate represents, and, unless
the court otherwise directs, shall be as effectual for all purposes as if
the process had been given to or served on the party in person.

 In the case of LakhmanBhimji versus Manor Developments Ltd

MA 105 of 2010 (arising from Civil Suit No 35 of 2013) service
had been effected on the applicant’s counsel who was away upcountry.
He was called on phone and later on found the summons in his office.
Court held that the Advocate could not receive service of summons for
a fresh suit on behalf of the Defendant. Firstly, being a fresh matter, he
would need instructions of his client in terms of the contents and
merits of the application in order to represent him effectively.
Secondly, and more fundamentally, is the ethical question of how an
Advocate can take up any matter without instructions of a client. A
lawyer has no authority to act for anybody without instructions. That
 the Advocates (Professional Conduct) Regulations, Statutory
Instrument 267—2, regulation 2 (1) forbids an advocate from acting
without instructions. Court further held that the Advocate could not be
instructed because the defendant/applicant had not yet been served.
In terms of the rules of procedure, there was no effective service on
the Applicant. To put it simply he had not yet received the documents
of service from the plaintiff and he was incapable of giving instructions
to any lawyer of his choice.”

 In the case of MulengaVStanbic Bank (U) Ltd (No. 200 of 2013)

Court held that a lawyer could not receive court process on behalf of
his client unless he is a duly authorized agent under the provisions of
Order 3 of the Civil Procedure Rules. A lawyer cannot take action
without instructions.
 The duty of the advocate to accept service subsist until conclusion of
the suit. The suit is not concluded until judgment is entered and bill of
cost taxed. This liability further subsist until a notice of change of
advocates is filed in court. The withdrawal must follow the rule on
withdraw from cases set out in the advocates rules-R.3 Advocates
professional conduct rules SI 267-2 Beliram V Salkind [1954] 27
KLR 28; There was no notice of change of advocate on the file. Service
was effected on the advocate who had withdrawn about a year ago.
Held that because of O.1 r.1& 2, by entering an appearance and giving
the address, the advocate became liable for service, which was
deemed as effective as if it was served on the defendant in person.
Twiga Chemical Industries Ltd V Viola Bamusedde CACA No.
9/2002

 NB. Service on an agent in charge of immovable property in the suit for

relief for respecting immovable property is good service-O.5 r 12 CPR.

 Service on Adult Member of Defendant’s Family

 O.5 r 13 civil procedure rules provides that where in any suit the
defendant cannot be found, service may be made on an agent of the
defendant empowered to accept service or on any adult member of the
family of the defendant who is residing with him or her.

 In the case of Wadamba v Mutasa& 2 Ors (HCT-04-CV-CA-0032-

2015) the issue of contention was whether service was effectively
done to warrant court’s findings that the appellant’s application had no
merit. According to O.5 r. 13 of the Civil Procedure Rules, service of
summons must be personal, but where it is not possible to serve the
defendant service can be done on his agent or adult member of his
family. See: Betty Owaraga v. G.W. Owaraga HCCA No. 60 of
1992. That also in Erukana Kavumu v. Metha (1960) EA 305,
service was effected on an adult member of the family when defendant
was reportedly in India. Court ruled that an inquiry was necessary
 regarding defendant’s address before its concluded that he can’t be
found.That the law is that where defendant denies having been served,
the onus is on him/her to prove to the satisfaction of court that the
service was ineffective as per Busingye&Ors v. Williams Katotsire
(2001-2005) HCB 108. That the law also recognises the role of the
local authorities to help in having the defendant understand the
contents of the summons per Magela v. Kakungulu (1976) HCB
289. The Process Server in this case enlisted the support of the LC.I
Chairman of the area, and also ensured that defendant is summoned to
the LC’s offices.
Service on an adult member of the family; If the defendant cannot be
found service on an agent or adult member of the defendant’s family is
good service, see, Omuchilo’s case, See Balenzi Vs Wandera

 Service upon an adult member of the defendant’s family including a

wife; Bulenzi Vs Wandera:[HCCS No.1047/90 The affidavit of
service stated that service was made onto the Defendant’s wife who
had revealed to the process server that she was not living with the
applicant as he was then staying outside the country and that she
would make efforts to send the summons to him. The defendant
contended that service was not in accordance with O.5, r 14 which
requires that service on the person residing with the person named in
the summons. Held: At the time service was purported to be made on
to the wife of the defendant the wife was not residing with the
defendant therefore this was no service as contemplated by O.5 r 14
when the defendant was not found at his home. Waweru V
Kiromo[1969] EA 172 K;

 The question whether service on an adult member of the defendant’s

family residing with him is proper service may be a mixed question of
law and fact and sometimes of law or fact alone; See also Waweru V
Kiromo[1969] EA 172(K)

 Need for sufficient inquiry about the defendant’s whereabouts; In the

case of Lalji v Devji [1962] EA 306 a clerk of the plaintiff’s advocate
made several attempts to serve a summons upon the defendant at his
house in vain and served the summons on the defendant’s wife under
O.5 r 14, judgment was challenged on ground that service of
summons was bad. Held: That no proper or sufficient inquiry was
made as to the defendant’s whereabouts or whether the defendant
could not really be found. Accordingly service on the defendant’s wife
was not effective.

 NB: That certain steps must be complied with before leaving summons
with another person or affixing it on the premises. Other alternative
 modes are not applicable unless there is evidence that the defendant
could not be found; In the case of Waweru V Kiromo [1969] EA 172
K the defendant applied to set aside service on him summons. The
affidavit of the process server stated that the summons had been left
with the defendant’s wife with instructions that she should keep it for
her husband as he was not present at the time. Trevelyan J. held that
as the process server made no inquiry about the defendant’s
whereabout it could not be said that he could not be found, so as to
allow service on his wife under O.5 r 12 (now O.5 r 14) CPR. See also
Okoth Alex vs Lwanyaga Edwin HCCS No. 32/2003.

 Service on a member of the defendant’s family must be effected on an

adult; Service upon a minor found at the defendant’s home is bad;
Betty Owaraga V George William Owaraga CA No.60 of 1992.

 Service by Affixing Summons on Defendant’s address

 O.5 r 15 civil procedure rules provides that where the serving officer,
after using all due and reasonable diligence, cannot find the defendant,
or any person on whom service can be made, the serving officer shall
affix a copy of the summons on the outer door or some other
conspicuous part of the house in which the defendant ordinarily resides
or carries on business or personally works for gain, and shall then
return the original to the court from which it was issued with a report
endorsed on it or annexed to it stating that he or she has so affixed the
copy, the circumstances in which he or she did so, and the name and
address of the person, if any, by whom the house was identified and in
whose presence the copy was affixed.
 In the case of Eliakanah Omuchilo V Ayub Machiwa [1966] EA
229(K) The process server accompanied by an agent of the plaintiff
failed to find the defendant at a resident where he ordinarily stayed to
serve a summons on him but the defendant could not be found there.
The process server affixed a copy of the summons on the entrance
door to the house and swore a brief affidavit to that effect. Later
judgment was entered exparte for the plaintiff. Haris J held that before
a process server can validly effect service by affixing the copy of the
summons to the premises, he must by virtue of O.5 r 14 first use all
due and reasonable diligence to find the defendant or his agent
empowered to accept service; or any defendant in charge of the suit
premises or any adult member of the family residing with him. It is only
when, after using such diligence, none of them can be found that he
can affix a copy of the summons on the premises, particulars of which
should be given. The service upon the defendant was wholly ineffective
as the process server had not used all due and reasonable diligence to
find the defendant and person mentioned in O.5 r 9,11 and 12,
accordingly judgment should be set aside without terms being imposed
on the defendant.
 The disclosure of the name and address of the person who identified
and witnessed delivery or tender of the summons to the defendant at
the material time is a statutory duty. In the case of M.B Automobiles
V Kampala Bus Service [1966] EA 480 Court held that the
disclosure of the name and address of the person who identified and
witnessed the delivery or the tendering of the summons to the
defendant at the material time was a statutory duty, and that failure to
disclose the name of such person in the affidavit sworn by the process
server rendered the affidavit defective.
 In contrast in the case of Galiwango Fred vs Asuman Kavuma
HCMA No. 131/2003 Court held that the process server clearly names
both the plaintiff and the wife of the applicant or at least the woman
that he thought was the wife of the applicant albeit by description who
were witnesses to the actual service which was executed in the
compound of the applicant’s home and in the absence of the plaintiff
and that both would fall under the ambit of Order 5 r 17 of the civil
procedure rules. Further held that in any case the statutory
requirement imposed upon a process server under Order 5 rule 17
appear to operate only in cases where the execution of service of
summons has been witnessed by someone. Where no person witnesses
the service the requirement to name the witness does not apply. The
words ‘the person if any’ used in rule 17 of order 5 renders credence to
this interpretation.
O.5 r 17 of the civil procedure rules provides for examination of serving
officer where a summons is returned under rule 15.

 Proof of Service
 O.5 r 16 of the civil procedure rules provides that the serving officer
shall, in all cases in which the summons has been served under rule 14
of this Order, make or annex or cause to be annexed to the original
summons an affidavit of service stating the time when and the manner
in which the summons was served, and the name and address of the
person, if any, identifying the person served and witnessing the
delivery or tender of the summons.

 In the Supreme Court case of Edison Kanyabwera v Pastori

Tumwebaze ((Civil Appeal No.6 of 2004)) Oder JSC (R.I.P) held that
the absence from record of an affidavit of service on the
defendant or his counsel was an error or mistake on the
face of the record justifying a review of the trial judge's
refusal to set aside the ex parte judgment against the defendant. That
there was no evidence on record that the defendant was served. The
absence of such affidavit leads inevitably to the conclusion
that the defendant was not properly served with the
hearing notice before the suit was heard in his absence.
The provisions of Order 5, rule 17 of the C.P.R is
mandatory, it was not complied with in theinstant case. What the rule s
tipulates about service of summons, applies equally to service of
hearing notices.
 The person alleging proper service must have and prove in his or her
return of service the following;
i) The time when service was effected on the said person;
ii) The manner in which the summons were served;
iii) The name and address of person identifying the person served;
The process server must show that he knows the defendant and
if not, the person identifying the defendant must be mentioned in
the affidavit. In the case of Frank Katusiime V Business
Systems Ltd HCSC 717/1993; Katutsi J held; that the
disclosure of the name and address of the person who identified
and witnessed delivery or tender of the summons to the
defendant at the material time is a statutory duty. Failure by the
process server to disclose the name of the receptionist who
allegedly pointed out the managing director to him had the effect
of rendering them defective for non-compliance with the
provisions of 0.5 r.16
iv) The exact place where service was effected;
v) Whether or not the person served is known to the person the
summons is meant for if the person is not known to the process
server;
vi) If no personal service, the person should indicate the relationship
between the person served and the person summons were
directed at;
vii) The source of information in (vi) must be stated;
viii) That he required his / her signature and response;

 In the case of Wadamba v Mutasa& 2 Ors (HCT-04-CV-CA-0032-

2015) Court held that the Process Server satisfied the basic
requirements for ensuring proper service as listed in the Uganda
Civil Justice Bench Book (1st Edn 2016) page 25 that effective
features of a valid affidavit of service should contain:

 A statement to the effect that the deponent is a Process Server of

the Court.
 A statement to the effect that the defendant/Respondent was
personally known to him or her at time of effecting service.
 A statement to the effect that the Defendant not being known to
him or her, another person accompanied the Process Server and
pointed out the person to be served. That the above check list was
dully satisfied in the facts of the application and the Process Server
conducted effective service.

 In the case of Good Man Agencies Ltd & Nicholas Were vs.
Highland Agriculture Export Ltd HCMA No. 364/2010
Kiryabweire J held that proof of service of summons is by affidavit of
service according to O.5 r 16. That the filing of an affidavit of service
 as proof of service is mandatory under the provisions of O.5 r 16 of
the civil procedure rules and is designed to ensure that there was
actual service and that it was carried out properly. That it would be
dangerous for court to accept the fact that there was service of
summons when summons were not signed by the defendant. (See
Allen J in Osuna Otwani v Bukenya Salongo [1976] HCB 62. Court
further held that it was inclined to believe that the applicant was
served and that is why a defence was filed in response but that the
only irregularity was no affidavit of service was put on court record
which would defeat the interest of substantive justice and there is
equally no prejudice to the applicant who was found on notice to
defend the suit.

 In the case of Osuna Otwani V Bukenya Ssalongo [1976] HCB

62; O.5 r.17 is mandatory and is designed to ensure that there is
actual service and that it is carried out properly. Hence it would be
dangerous for courts to accept the fact that there was service of
summons when summons were not actually signed by the
defendant/appellant.

 As a general practice, the court should require an affidavit of service

of summons in every case before entering judgment in default of
appearance. Kanji Naran V Ramji 21 EACA 20; Edison
Kanyabwera V Pastori Tumwebaze [2001-2005] HCB 98

Service of summons , the affidavit must show that a copy of the plaint
and affidavit in support were served with the summons. Lusiano Lippi
v Venice (U) Ltd [1992] IV KALR 7 .
 The rule in order 5 r.16 that an affidavit of service has to be sworn
where the summons have been served equally applies to hearing
notices. The provisions of the rule are mandatory. The absence of an
affidavit leads inevitably to a conclusion that the defendant was not
properly served. Edison Kanyabwera V Pastori Tumwebaze
[2001-2005] HCB 98

 Illiteracy in English is no ground for ignoring summons and the person

served cannot rely on that as a ground for not entering appearance;
Read F. Magera & Anor. V Kakungulu [1976] HCB 289

 Day and Hour of service

 O.51 r 9 civil procedure rules provide that service of pleadings, notices,
summonses, other than summonses on plaints, orders, rules and other
proceedings shall normally be effected before the hour of six in the
afternoon, except on Saturdays when it shall normally be effected
before the hour of one in the afternoon. Service effected after the hour
 of six in the afternoon on any week day except Saturday shall, for the
purpose of computing any period of time subsequent to the service, be
deemed to have been effected on the following day; service effected
after the hour of one in the afternoon on Saturday shall for the like
purpose be deemed to have been effected on the following Monday.

 Day of service, excludes Sundays and Public holidays; Wasswa Vs

Ochola, SCCA No.05/1990; O. 51 r 9; The applicant moved to set
aside an exparte judgment on grounds of non-service, which was
purportedly made on Sunday. The affidavit of service did not disclose
how the process server knew the person to be served. The plaintiff had
exparte remedies. Service on Sunday is void within the meaning of
O.51 r 9 CPR as no service can be effected on Sunday. The affidavit of
service should complied with O. 5 r 17 where service is effected under
O.5 r 15, the address of the person identifying the individual to be
served should be annexed to the affidavit.

 Substituted Service
 O.5 r 18 of the civil procedure rules provide for substituted service.
Where the court is satisfied that for any reason the summons cannot
be served in the ordinary way, the court shall order the summons to be
served by affixing a copy of it in some conspicuous place in the
courthouse, and also upon some conspicuous part of the house, if any,
in which the defendant is known to have last resided or carried on
business or personally worked for gain, or in such other manner as the
court thinks fit. Substituted service under an order of the court shall be
as effectual as if it had been made on the defendant personally.

 The object of substituted service of summons was considered

in Satvinder Singh vs. Saridner Kaur HCDC No. 2 of 2002 before
Justice Rwamizazi-Kagaba of the High Court of Uganda (See (2002)
KALR 616 at 617). Where the Hon Judge of the High Court held as
follows: “I must observe that substituted service is granted with a
purpose or goal to achieve. It is granted when the court is satisfied that
there exists a practical impossibility of actual service that the method
of substituted service asked by the plaintiff/petitioner is one which will
in all reasonable probability, if not certainty, be effective to bring
knowledge of the plaint/petition to the respondent/defendant, (whether
substituted service is granted for the defendant who is within the
jurisdiction of the court or outside its jurisdiction) the primary objective
is to ensure that the defendant should receive knowledge of the
existing suit against him or her and thereby eliminate the violation of
his rights which requires that a person shall not be condemned
unheard."
 In the case of David Ssesanga v Greenland Bank Ltd
Misc.App.No.406 Of 2010 Madrama J held that Order 5 rule 18
assumes that the defendant sought to be served by substituted service
 is within the jurisdiction of the court when summons are issued. The
intention of the substituted service is to make the defendant aware of
the suit in another way because he or she cannot be
served personally. The defendant can only be served personally when
he or she is within the jurisdiction of the court. Common law authority
is that for substituted service to be valid, the defendant has to be
within jurisdiction of the court when the writ for which order for
substituted service is made. Substituted service under Order 5 rule 18
(1) of the CPR applies where the defendant cannot be served in the
ordinary way. Ordinary service is personal service or service on the
defendant personally.
 Order 5 rules 18 of the Civil Procedure Rules is clear about the
circumstances where substituted service may be ordered. First of all
the court is to be satisfied that summons cannot be served in the
ordinary way. Secondly the affixing of a copy in a conspicuous place in
the court house or on part of the residence or house of the persons
sought to be served or where the person last resided or carried on
business or personally worked for gain or in some other manner as the
court thinks fit, presupposes that the person would be made aware of
the summons by affixing of a copy or by the service in the manner that
the court thinks fit. The underlying rationale for every service is that
the defendant would become aware of the matter contained in the
notice or summons. A summons is an order of the court directing a
party to appear in court.
 In the case of Tweheyo Edson vs Barurengyera Kamusiime
Hillary HCCA No. 11/2010 arising from MA No. 98/2009 and CS No.
343/2009 Justice Bashaija held that the trial court was satisfied that
summons could not be served in the ordinary way and ordered
substituted service instead, by affixing the summons on court notice
board and advertising on the Orumuri newspaper. That based on the
provisions of order 5 r 18(2) CPR the appellant’s argument are
implausible that he was not duly served because service by way of
substituted service, and that the respondent knew where the appellant
could be found but opted for this particular mode of service. Court held
that there was evidence that the process server could not trace the
appellant at his home, and was informed by his neighbors that the
appellant had left the place without evidence rebutting these facts.
 The advertisement of summons without prior leave of court does not
substitute for personal service of such summons on the defendant but
is mere notice; Read Kearsley (Kenya) Ltd V Anyumba & Othrs
[1974] EA 112
Service of court process by substituted service is deemed as good as
service on the person personally Violet K. Mukasa V Erizafani
Matovu[1992-93] HCB 235; However Read; Read; Geoffrey
Gatete & Anor. V William Kyobe [2007] HCB Vol.1 54

That service should be personal or substituted with leave of court

otherwise there will be no proper. UTC Vs Kewaza [1975] EA: see
procedure of applying for substituted service.
 Service by Electronic means.

This is another mode of service which courts can allow any party under
‘‘such other manner as the court thinks fit’’. This therefore means a
party can ask court for alternative means of service if physical personal
service cannot be effected such as service by fascmile or service by
other means of electronic communication especially if such parties
have ever had such mode of communication in their dealings or it
forms part of their contract address. Under the companies Act, this
mode of service has been recognized as a way of service on a company
under section 274 of the companies Act, 2012. Internet lawyers could
further consider the return receipt option or hire verification service so
as to prove to court that the email reached and opened.

Service by Post.

The summon is sent to the defendant at his usual and last known place
of abode by registered mail. In some jurisdictions service is presumed
to have been effected on the 7th day of posting though it can be
rebutted. See Order 5 r 7(1)(b) and Order 5 r 19 of the civil procedure
rules. See India Vedeorgram Association Limited vs Patel [1991] 1 WLR
173

 Service on Partners in a partnership.

O.30 r 3 of the civil procedure rules provides for service of partners.

Where persons are sued as partners in the name of their firm, the
summons shall be served—(a) upon any one or more of the partners; (b)
at the principal place at which the partnership business is carried on
within Uganda upon any person having, at the time of service, the control
or management of the partnership business there; or (c) as the court may
direct. The service shall be deemed good service upon the firm so sued,
whether all or any of the partners are within or without Uganda; except
that in the case of a partnership which has been dissolved to the
knowledge of the plaintiff before the institution of the suit, the summons
shall be served upon every person in Uganda whom it is sought to make
liable. O.30 r 6 provides for appearance by partners. Where persons are
sued as partners in the name of their firm, they shall appear individually
in their own names, but all subsequent proceedings shall, nevertheless,
continue in the name of the firm. O.30 r 7 provides that where a summons
is served in the manner provided by rule 3 of this Order upon a person
having the control or management of the partnership business, no
appearance by him or her shall be necessary unless he or she is a partner
of the firm sued.

 The case of Geoffrey Gatete and Angela Maria Nakigonya versus

William Kyobe Supreme Court Civil Appeal No. 7 of 2005 is
instructive. The judgment of the court was delivered by Mulenga
JSC with concurrence of the rest of the panel of Supreme Court Judges.
Court held that rules 3, 6 and 7 of Order 30 relate to service of, and
appearance to summons. From reading the three rules together, it is
evident that “deeming service” in any of the modes provided by r.3 to
be “good service upon the firm” is premised on an assumption that the
person served will ensure that all the partners sued under the firm
name ultimately receive the summons. Hence the mandatory
requirements under rr.6 and 7, that the partners, and only the
partners, have to enter appearance in their individual names. This is so
because a suit against a partnership firm is in essence a suit against
the individual partners jointly and severally. Obviously, the partners
cannot comply with the requirement to enter appearance where they
are not made aware of the summons and the suit. That O.30 r.3 does
not constitute a partnership firm into a corporate legal person nor does
it vest in the person served, power of attorney to act for all the
partners of the firm sued. The rule provides the alternative modes of
service only for expediency. It must not be construed as compromising
the right of any partner to know of a suit instituted against him or her
under the firm name and to have opportunity to decide whether or not
to enter appearance and defend; or in the case of a summary suit, to
decide whether or not to apply for leave to appear and defend. At
page 8 second paragraph to page 9 quote: “It is apparent that in
concluding that assumed service on MatsikoKasiimwe was effective
service, the courts below took the expression “deemed good
service” referred to in order 30 rule 3 and the expression “effective
service” referred to in order 36 rule 11 to mean the same thing and
actually use them interchangeably. In my view, the two expressions
are significantly different. The Oxford Advanced Learner’s Dictionary
defines the word “effective” to mean “having the desired effect;
producing the intended result”. In that context, effective service of
summons means service of summons that produces the desired or
intended result. Conversely, in ineffective service of summons means
service that does not produce such result. There can be no doubt that
the desired and intended result of serving summons on the defendant
in the civil suit is to make the defendant aware of the suit brought
against him so that he has the opportunity to respond to it by either
defending the suit or admitting liability and submitting to judgment.
The surest mode of achieving that result is serving the defendant in
person. Rules of procedure, however, provide for such diverse modes
for serving summons that the possibility of service failing to produce
the intended result cannot be ruled out in every case.
For example, in appropriate circumstances service may be lawfully
made on the defendant’s agent. If the agent omits to make the
defendant aware of the summons, the intended result cannot be
achieved. Similarly, the court may order substituted service by way of
publishing the summons in the press. While the publication will
constitute lawful service, it will not produce the desired result if he
does not come to the defendants notice. In my considered view, these
 examples of service envisaged in order 36 rule 11 as “service (that)
was not effective.” Although the service on the agent and substituted
service would be “deemed good service” on the defendant entitling
the plaintiff to a decree under order 36 rule 3, if it isshown that the
service did not lead to the defendant becoming aware of the summons,
the service is “not effective” within the meaning of order 36 rule 11.
(See PirbhaiLalji vs. Hassanali (1962) EA 306).
The word “deemed” is commonly used in legislation to create legal or
statutory fiction. It is used for the purpose of assuming the existence of
the fact that in reality does not exist. In St Aubyn (LM) vs. Attorney
General (1951) 2 All England reports 473, at page 498 Lord Radcliffe
describes the various purposes for which the word is used where, he
says – “the word “deemed” is used a great deal in modern legislation.
Sometimes it is used to impose for the purpose of the statute an
artificial construction of the word or phrase that would not otherwise
prevail. Sometimes it is used to put beyond doubt a particular
construction that might otherwise be uncertain. Sometimes it is used
to give a comprehensive description that includes what is of use, what
is and certain and what is, in the ordinary sense, impossible.” In my
view, the expression “service that is deemed to be good service” is so
broad that it includes service that would not produce the intended
result, which therefore is not effective.”

 Service on a Company or Corporation

 Section 274 of the Companies Act 2012 provides for Service of
documents. A document may be served on a company by personally
serving it on an officer of the company, by sending it by registered post
to the registered postal address of the company in Uganda or by
sending an email to the known electronic address or by leaving it at the
registered office of the company.

 O.29 r 2 of the civil procedure rules provides for service on corporation.

That subject to any statutory provision regulating service of process,
where the suit is against a corporation, the summons may be served—
(a) on the secretary, or on any director or other principal officer of the
corporation; or (b) by leaving it or sending it by post addressed to the
corporation at the registered office, or if there is no registered office,
then at the place where the corporation carries on business.

 James Musajjalumbwa V Bitumastic Ltd [1982] HCB 103; Service

upon company secretary, director or principal officer or by leaving the
summons at the registered office or place of business. Read also J.F
Ijjala V Corporation Energo Projekt [1988-90] HCB 157 For the
principal that if summons are left at the principal place of business or
head office of the defendant, that is effective service.
 Augustine Okirol Vs Gerald Lwasa and PMB: Service was effected
on the secretary of the general manager of the company reliance being
placed on O.29 r 2 and the defendants contended that service was bad.
Held: That the secretary of the general manager was not within a class
of persons intended by the rule and could not fall within the ambit of
the principal officer of the corporation hence the service was not
effected.

 In the case of Kisubi High School Ltd vs. NSSF HCMA No.
505/2012 the affidavit of service read that the deputy head teacher
had been served with the summons. The narrow issue was whether
service on the deputy head teacher of the applicant school amounted
to leaving the document at the registered office of the company.
Alternatively whether the school is the place where the corporation
carries business. Madrama J held that there is no difference in quality
between handing over summons to the head teacher and also leaving
it at the principal place of business or registered office of corporation.
Further held that service on the deputy headmaster was as good as
leaving the documents at the registered office of the company.

 In the case of National Forestry Authority vs Kasese Cobalt co.

Ltd HCMA No. 110/2012 the issue was whether service on the liaison
officer was effective service. Madrama J held that it is permissible to
serve summons on the secretary, any director or other principal officer
of the corporation. That the expression principal officer has to be
determined on the basis of the facts as to whether the person or officer
is the principal officer in the circumstances of the case.

 In the case of Kampala City Council vs. Apollo Hotel

Corporation [1985] HCB at page 77, it was argued that the
applicant had not been served with summons and was not aware of
any pending suit and therefore could not enter appearance. In an
application to set aside the decree Odoki J as by then held that
summons have to be served on the secretary to the board, or the
chairman of the board or any director or other principal officer in that
category of responsibility. That such process must be served on senior
officers of the corporation responsible for the management of the
corporation and in a position to take legal action on behalf of the
corporation. In that case the person served as a manager of the
corporation was not a principal officer of the corporation competent to
accept service of the process.

 Service on Corporations: NB: R 14, 16 and 17 do not apply to the

corporations and service on corporations cannot be effected in
accordance with those rules [Nzioki S/o Mutumenta Vs Akamba
Handcraft industries Ltd] O.29 r 2: Service on corporations is made
upon the secretary, directors, principal officer of the company (like the
general manager) on whom summons may be left or sent by post to
 the corporation’s registered office. If no registered office, then to their
premises.

 Service on the Attorney General

 Article 250(2) of the constitution provides those civil proceedings
by or against the Government shall be instituted by or against the
Attorney General; and all documents required to be served on the
Government for the purpose of or in connection with those proceedings
shall be served on the Attorney General.
 Sec 11 of the Government Proceedings Act provides that all
documents required to be served on the Government for the purpose
of or in connection with any civil proceedings by or against the
Government shall be served on the Attorney General.

 R. 5 of the Government proceedings (Civil procedure) rules

provide for Service of documents. Service of a document on the
Attorney General for the purpose of or in connection with civil
proceedings by or against the Government shall be effected by
delivering or sending the document to be served and a duplicate or
copy of the document to the office of the Attorney General, and shall
be deemed not be complete until the Attorney General or another
officer of the Government entitled to practice as an advocate in
connection with the duties of his or her office has endorsed an
acknowledgement of service on the document to be served. In this
rule, “document” includes a notice, pleading, order, summons, warrant
and any written proceeding or communication.

 Under R. 8 of the Government proceedings (Civil procedure)

rules in the case of civil proceedings against the Government—(a) the
provisions of rule 1(1)(b) of Order V of the principal Rules and the
provisions of rules 3, 4, 20, 21, 22, 23, 24, 25, 26 and 27 of that Order
shall not apply; and (b) where a summons is issued under rule 1(1)(a)
of that Order the time limited by the summons for entry of appearance
shall be not less than thirty days.

 Service out of Jurisdiction

 O5. r 22 of the civil procedure rules provides that Service out of the
jurisdiction may be allowed by the court wherever (a) the whole
subject matter of the suit is immovable property situated within the
jurisdiction, (with or without rents and profits); (b) any act, deed, will,
contract, obligation or liability affecting immovable property situate
within the jurisdiction is sought to be construed, rectified, set aside or
enforced in the suit;(c) any relief is sought against any person
domiciled or ordinarily resident within the jurisdiction;(d) the suit is for
the administration of the personal estate of any deceased person, who
at the time of his or her death was domiciled within the jurisdiction, or
for the execution (as to property situate within the jurisdiction) of the
 trusts of any written instrument, of which the person to be served is a
trustee, which ought to be executed according to the law of Uganda;
(e) the suit is founded on any breach or alleged breach within the
jurisdiction of any contract wherever made which, according to the
terms of the contract, ought to be performed within the jurisdiction; (f)
any injunction is sought as to anything to be done within the
jurisdiction, or any nuisance within the jurisdiction is sought to be
prevented or removed, whether damages are or are not also sought in
respect thereof; (g) any person out of the jurisdiction is a necessary or
proper party to a suit properly brought against some other person duly
served within the jurisdiction; or (h) the suit is founded on a tort
committed within the jurisdiction.

 Order 5 rule 24 provides that applications should be supported by

evidence. Every application for leave to serve the summons or notice
on a defendant out of the jurisdiction shall be supported by affidavit or
other evidence, stating that in the belief of the deponent the plaintiff
has a good cause of action, and showing in what place or country the
defendant is or probably may be found, and whether the defendant is a
Commonwealth citizen or British protected person or not.

 Order 5 rules 26 provides where leave to serve a summons out of the

jurisdiction has been granted under rule 22 of this Order and the
defendant is a Commonwealth citizen or British protected person or
resides in a Commonwealth country out of Uganda, the summons shall
be served in such manner as the court may order.

 Order 5 rules 27 provides that where the defendant is neither a

Commonwealth citizen nor a British protected person and is not in a
Commonwealth country, notice of the summons and not the summons
itself is to be served upon him or her.

 Order 5 r 28 of the civil procedure rules provides for the procedure to

be adopted where leave is given to serve notice of summons in any
foreign country (not being common wealth country) to which rule 28 of
this Order applies may by order of the Chief justice from time to time
be applied. Order 2 of the Civil Procedure (Service of Notice of
Summons in Foreign Countries) Order provides that rule 28 of Order 5
of the civil procedure rules shall apply to the foreign countries specified
in the schedule to this Order. These are: Democratic Republic of Congo,
Republic of Burundi, Republic of Rwanda, and Republic of the Sudan.

 In the case of David Ssesanga v Greenland Bank Ltd

HCMisc.App.No.406 Of 2010 Madrama J (as by then) held that
Order 5 rule 18 assumes that the defendant sought to be served by
substituted service is within the jurisdiction of the court when
 summons are issued. The intention of the substituted service is to
make the defendant aware of the suit in another way because he or
she cannot be served personally. The defendant can only be served
personally when he or she is within the jurisdiction of the
court. Common law authority is that for substituted service to be
valid, the defendant has to be within jurisdiction of the court when
the writ for which order for substituted service is made. Further held
that service outside jurisdiction is under order 5 rule 22 which gives
instances where the court may make an order for service outside
jurisdiction. This includes sub rule (c) which provides that where the
relief is sought against any person domiciled or ordinarily resident
within the jurisdiction. That applicant qualifies to be called a person
domiciled in Uganda at the time of the suit. That the Rules 26 – 30
deal with the procedure applicable. Where the Court allows service
to be made outside jurisdiction, the relevant procedures have to be
complied with. These include: An application to be made to court
supported by affidavit evidence under order 5 rule 24; the Court
making the order for service outside jurisdiction will indicate the
period within which a defence will be filed depending on the
geographical location and accessibility of the foreign country where
the defendant resides. (See order 5 rule 25); the Court will order the
manner of service (see order 5 rule 26) and the procedure for
service in a foreign country is provided for under rule 28.

 In the case of Abidi & 3 Ors v Tropical Africa Bank HCMA No.
360 Of 2006 the plaintiff was given leave to advertise the notice of
the next hearing of the suit t in the New Vision and the East African
newspapers and further to be served on an adult member of the
defendant’s family in Uganda. At the time of the order of the court
to serve the defendant through the provisions for substituted
service, the defendant was a resident of the United Arab Emirates.
Court held that under common law rules, substituted service can
only be valid if the defendant is within the local limits of the court's
jurisdiction when the order for substituted service is made. That in
the case of Myerson v Martin [1979] 3 All ER 667 the Court of
Appeal dealt with the question of substituted service on a person
outside the local limits of the court’s jurisdiction. Lord Denning held
at page 670 that substituted service is only valid where the
defendant is resident within the local limits of the Court’s
jurisdiction and not outside jurisdiction. Court further held that
Order 5 makes a clear distinction between substituted service under
Order 5 rule 18 of the Civil Procedure Rules and service outside
jurisdiction under rule 22 thereof. This is read in conjunction with
Order 5 rule 29 of the CPR which provides that the court may direct
that any summons, order or notice shall be served on any party or
person in a foreign country and the procedure prescribed by rule 28
of the order with reference to service of notice of the summons shall
apply to the service of any summons, order or notice so directed to
 be served. That the applicant was served as if he was resident
within the local limits of the court’s jurisdiction whereas not. That
rationale for service outside jurisdiction in the applicant's case
would be to make the applicant aware of the hearing of the suit.
That service outside jurisdiction is clearly governed by Order 5 rules
22 and 29 of the Civil Procedure Rules. That in the case of Karachi
Gas Co Ltd v H Issaq [1965] 1 EA 42 the Court of Appeal of East
Africa sitting at Nairobi per Newbold Ag V-P held at page 53 that
service of summons outside jurisdiction are made in the
circumstances defined by (Order 5 rule 22 of the Uganda CPR): “As
regards the first of these issues the defendant was out of the
jurisdiction and was neither domiciled nor ordinarily resident in
Kenya. In such a case the courts of Kenya will not assume
jurisdiction in relation to any matter arising out of contract unless
the circumstances fall within the provisions of O. V, r. 21 of the Civil
Procedure (Revised) Rules, 1948 (K). This rule details the
circumstances in which service of a summons or a notice of
summons may be allowed out of the jurisdiction in order to give
effect to a jurisdiction which the courts have assumed.” That given
the analogous application of the rules to hearing notices, the
circumstances set out under Order 5 rule 22 thereof. Rule 22 (g)
includes in the circumstances the person is out of jurisdiction and is
a necessary or proper party to the suit properly brought against the
person duly served within the jurisdiction. That by analogy a person
resident outside jurisdiction has to be served outside jurisdiction for
the service to be effective.

 In the case of Abudlrahmna Omar t/a Bahan Commercial

Agencies V Content Tobacco (U) Ltd & Anor HC Misc.
Application No 298 of 2009 was an application for Summons to
file a defence in a foreign country to issue. The affidavit in support
was sworn by the Applicant shows that the 2 nd Respondent, a limited
liability company operates in Nairobi, and Mombasa Kenya. Kenya is
a Commonwealth Country and the Applicant deponed that service
cannot be effected normally in Uganda. Court considered the
affidavit in support of the application and the provisions of Order 5
rules 22 and 26 CPR for requirements for the under issue and held
that the Applicant has satisfied the requirements for summons to
file a defence to issue outside jurisdiction. Court ordered that
summons to file a defence be issued against M/s Mastermind
Tobacco (K) Ltd, the second defendant in Civil Suit No. 192 of 2009
to be served on it in Kenya.
 Read O.5 r 22-28 civil procedure rules. Also Civil Procedure
(Service of Notice of Summons in Foreign Countries) Order.

 Contesting Service of Summons

 The law is that where defendant denies having been served, the
onus is on him/her to prove to the satisfaction of court that the
service was ineffective as per Busingye&Ors v. Williams
Katotsire (2001-2005) HCB 108.

 Effect of Failure to Serve Summons

 Failure to serve the process where service is no doubt required is a
failure which goes to the root of any conception of proper procedure
in litigation. In the case of BamanyeFazil v Nankunda Rose HC-
CV-CA-0007-2009 Court held that it is obligatory on the part of
the defendant to serve a copy of his Written Statement of Defence
on the plaintiff, particularly so where the Written Statement of
Defence contains a counter-claim which legally is a suit in its own
right. That failure to serve the process where service is no doubt
required is a failure which goes to the root of any conception of
proper procedure in litigation. See: Nicholas Roussos vs G. H.
Virani & Anor HCCS No. 360 of 1982 where court observed
“Apart from proper ex parte proceedings the idea that an
order can validly be made against a man who had no
notification of any intention to apply for it is one which has
never been adopted in this country. To treat that an order of
this kind made in this case should be treated as a mere
irregularity, and not something which is affected by a
fundamental vice is an argument which in my opinion cannot
be sustained.” Court further held that the ex parte judgment
entered against the appellant was affected by a fundamental vice in
that he was never served with a copy of the Written Statement of
Defense and the counter – claim. The service the
defendant/respondent purported to effect, that is, of leaving a copy
in the court file for the appellant’s collection on his own was wrong
in law and was no service at all. The resultant ex parte judgment
was therefore a nullity. That Lord Greene M. R. considered the
authorities on this print in Greig vs Kanseem [1943] 1 ALL ER
108 and concluded as follows at 113: “Those cases appear to
me to establish that an order which can properly be
described as a nullity is something which the person
affected by it is entitled ex-debitojustitiae to have it set
aside. So far as the procedure for having it set aside is
concerned, it seems to me that the court in its inherent
jurisdiction can set aside its own order; and that an appeal
from the order is not necessary.” Having held that the improper
mode of service adopted by the respondent/defendant rendered the
resultant ex parte judgment a nullity, court held that the appellant is
entitled ex debitojustitiae to have it set aside.

 Pre-Entry Exam 2012/2013

 Qn.42. The plaintiff sued the defendant for trespass, seeking an
eviction order. The defendant did not file a defence. There is an
affidavit of service on record. What step should the plaintiff take?
  Pre-Entry Exam 2015/2016
 Qn.48. Explain the purpose of a hearing notice?

 Pre-Entry Exam 2017/2018

 Qn.5. Who is a process server?

TOPIC VIII

APPEARANCE OF PARTIES & AGENTS.

Section 20 CPA provides that where a suit has been duly instituted, the
defendant shall be served in the manner prescribed to enter an
appearance and answer the claim. (O.5 r 3) See different modes of
responding to summons; vide; filing a defense, an application for leave to
appear and defend, an affidavit in reply all depending on the type of
summons.

O.3 r 1 civil procedure rules provides for appearances, etc. may be in

person, by recognized agent or advocate. Any application to or
appearance or act in any court required or authorized by the law to be
made or done by a party in such court may, except where otherwise
expressly provided by any law for the time being in force, be made or
done by the party in person, or by his or her recognized agent, or by an
advocate duly appointed to act on his or her behalf; except that any such
appearance shall, if the court so directs, be made by the party in person.

 What constitutes Appearance

Appearance is both legal and physical depending on the stage of the
proceedings.

a) Legal Appearance

O.9 r 1 of the civil procedure rules provides for the mode of filing a
defense. A defendant shall file the defense by delivering to the proper
officer a defense in writing.

In the case of Opa Pharmacy Vs Howse SMC George(1972) ULR 115 :

Held: The appearance under O.9 r 1 connotes legal rather than physical
appearance. That appearance under O.9 r 1 meant simply the delivery of
a written word and memo of appearance stating that the defendant would
appear in person. [Position then, current position is to file a WSD
rather than a memorandum of appearance.

 Manner of Appearance
 Order 8 r 1: A defendant may, if so required by court at a time of the
issued of summons or any time thereafter as prescribed by court file a
 defense within 15 days unless otherwise ordered by court. [30 days
for Attorney General. Read Rule 6 of the Government
Proceedings Civil Procedure Rules]

 O.9 r1: This is done by delivery of a written statement of defence

dated on the day it is filed, stating the name of the defendant if he is to
appear in person or his advocate and the address of service. The
defendant shall file and sent it, showing the date and return it to the
person filing it and the defence shall be served onto the plaintiff. See
copy of the defence.

 In the case of Mark Graves vs Balton (u) Ltd HCMA 158/2008 an

application under O.9 r 3 CPR disputing jurisdiction of court. Counsel
for respondent raised a preliminary point of law that the applicant had
not filed a defense. That to bring an application under O.9 r 3 CPR the
applicant must first file a defense and then file the application. The
issue was whether an application under the above rule can be filed by
a defendant without filing a Written Statement of defense. Court held
that the filing of a defense prior to filing an application under rule 3, is
optional. Where a defense is filed, such filing will not be a waiver to
filing of the application (rule 2). Further the filing of defense where the
defendant has filed an application under rule 3 is not treated as
submission to the jurisdiction unless court makes no order on the
application or dismisses it (rule5). And where the defendant who filed a
defense, does not make the application such defence will be treated as
submission by the defendant to jurisdiction of the court in the
proceedings unless the defense is withdrawn with leave of court under
rule 1 (3) of Order 25 CPR. That the second point of objection was that
the application was after lapse of the time for service of a defense.
Court held that under o.8 r 1(2) and O.8 r 19 filing of a defense is
completed by delivering a defense to court for placing the court record
and delivering a duplicate thereof at the address for service of the
plaintiff (O.8 r 19). That this was supposed to be done within 15 days
from the date of publication of the advertisement (O.8 r 1(2) CPR).

 Extension of time for entering an Appearance.;

 Extension of time may be when parties have consented or where the
party has applied to court.[see s.96 CPA] Godfrey Magezi & Brain
Mbazira V Sudhir Rupaleria SCCAPP 10/2002. Applicant sought
extension of time within which to file an appeal out of time to appeal
against the decision of the Court of appeal. Held; that court has
jurisdiction to extend for the doing of an act so authorized or required.
The omission, mistake or inadvertence of counsel ought to be visited
on the litigant leading to striking out his appeal thereby denying him
justice. Even if the legal advisor’s actions have been negligent, an
extension of time has been accepted. Read; Robert Opio & Anor V
Edward Kabugo Sentengo HCMA No.166-2002 for what
amounts to sufficient cause to warrant extension of time to file
a defence
 In the case of Stop & See (U) Ltd vs. Tropical African Bank HCMA
No. 333/2010 held that once a party is out of time, he or she needs to
seek leave of court to file the defense or affidavit in reply outside the
prescribed time.

 That the legal effect of extending time to file an appeal out of time
when the appeal had already been filed(out of time) is to validate that
appeal or to excuse the late filing of that appeal. See also Credit
Finance Co Ltd V Makerere Properties SCC Appl No.1 of 2001.

 Effect of Failure to enter appearance:

If the defendant without sufficient cause fails to appear in court, the
plaintiff will be entitled to proceed exparte by obtaining leave to prove
his case or judgment may be entered in default, or interlocutory
judgment may be entered depending on the nature of the claim.

The Defendant will have excluded himself from proceedings unless he

applies to show cause as to why he did not file the defence within the
time allowed. Mark Graves V Balton (U) HCMA No.158 of 2008;
Bukenya Vs Attorney General (Supra). Twiga Chemical
Industries Ltd V Viola Bamusedde CACA No. 9/2002; Silas
Bitaitana V Emmanuel Kananura CACA No.47/1976; AG & UCB V
Westmont Land (Asia) Bhd & Othrs. [1997-2000] UCLR 191

Generally, a defendant who fails to file a defence within the time

limited by law is deemed to have excluded themselves from the
proceedings in court. Sebunya Vs Attorney General [The Plaintiff
sued the Attorney general who failed to file a WSD within the statutory
period and was nor represented at the hearing. A state attorney
appeared for the defendant. Held: A defendant who files no defence
could not be heard. The state attorney as in the instant case even if he
had appeared in time would have had no locus standi and could not be
heard. AG & UCB V Westmont Land (Asia) Bhd & Others [1997-
2001] UCLR 191

b) Physical appearance.
Court can make an order for that a plaintiff or defendant appears in
person.

O.3 r 1 civil procedure rules provides that if the court so directs,

appearance shall be made by the party in person.

O.5 r 3 of the civil procedure rules provides that where the court sees
reason to require the personal appearance of the defendant, the
summons shall order him or her to appear in person in court on the day
 specified in the summons. Where the court sees reason to require the
personal appearance of the plaintiff on the same day, it shall make an
order for that appearance.

 Appearance by a party.
 O.3 r 1 civil procedure rules appearance may be made or done by the
party in person. Appearance means being physically in court and
notifying court of a party’s presence. In the case of Kyobe
Ssenyange Vs Naks Ltd (1980) HCB 31: was an application to set
aside a decree granted exparte on ground that neither applicant nor
counsel appeared. Applicant was physically in court as was his
advocate when the application was called for hearing though during
the hearing he did not raise up his hand as requested; Held: That mere
presence of the party alone does not amount to presence as the party
must indicate to court that he is appearing for a matter.

c) Appearance by a party’s Advocate.

 O.3 r 1 civil procedure rules appearance may be made or done by an

advocate duly appointed to act on a party’s behalf.
 Regulation 2 (1) of the Advocates (Professional Conduct) Regulations
S.1 267-2 Provides:
‘‘No advocate shall act for any person unless he or she has
received instructions from that person or his or her duly
authorized agent.’’

 Regulation 3 (1) of the Advocates (Professional Conduct)

Regulations S.1 267-2 Provides:
‘‘An advocate may withdraw from the conduct of a case on
behalf of a client where—
(a) the client withdraws instructions from the advocate;
(b) the client instructs the advocate to take any action
that may involve the advocate in proceedings for
professional misconduct or require him or her to act
contrary to his or her advice to the client;
(c) the advocate is duly permitted by the court to
withdraw;
(d) the client disregards an agreement or obligation as to
the payment of the advocate’s fees and disbursements.’’

In the case of Kabale Housing Estates Tenants Association vs.

Kabale Municipal Local Council Civil Application No. 15 of 2013
Kitumba JSC held that a suit brought without instructions is
incompetent. See Buikwe Coffee Ltd (1962) EA 327. That counsel must
appear in court with full instruction and authority from his client.
Failure to do so, an advocate will be acting on his own and will not be
entitled to any costs.

In the case of Attorney General & Peter Nyombi vs. Uganda Law
Society (Misc. Cause No. 321 of 2013) the issue was whether the
Attorney General can retain and instruct Kampala Associated
Advocates, a private legal firm to represent it and perform legal
services without complying with the Public Procurement Laws and
Regulations? Court held that by appointing Kampala Associated
Advocates as counsel for the first applicant, the effect is that they were
vested with the authority of duly appointed advocates for the Attorney
General with full instructions to act on behalf and for the Attorney
General and entitling them to remuneration by the Attorney General
which comes from public coffers or the consolidated fund. In case the
respondent lost the case, then the latter would be liable for the costs
on a party-to-party basis. Consequently, that it was irregular for the
learned Attorney General to have retained the Kampala Associated
Advocates as lawyers to provide professional services to the Attorney
General without following the PPDA Act and Regulations as amended.

In the case of Sekyaya Vs Sebuguli: held that as the plaintiff’s

counsel is present and appear on the plaintiff’s behalf, then the plaintiff
pursuant to O.3 r 1 will be said to be legally in court.

Harriet Kizito v Ggoloba Godfrey CA No. 65/2005; Handoni

Daniel V Yolamu Egondi CACA No.67 of 2003

Kawooya Vs Naava:[1975] HCB 314 This was an appeal against a

decision of a chief magistrate dismissing the appellant’s application
under O.9 r 24 to set aside an exparte decree passed against him.
Appellant deposed that he did appear at the hearing but due to a
sudden change of venue for the hearing, thus his counsel went to a
wrong court. Counsel had been arrested the previous day thus was
unable to appear. The Magistrate had dismissed the grounds as
insufficient. Held: That a decree entered exparte will be set aside if the
appellant was prevented by sufficient cause from appearing when the
suit was called for hearing [O.9 r 24]. Since under O.3 r 1 any person
may appear by person or by his advocate, appearance for purposes of
O.9 r 24 means appearance of his advocate. That the appellant had
shown sufficient cause within O.9 r 24 for his nonappearance at the
hearing and the exparte decree would be set aside.

 A party who empowers an Advocate for him or her is not allowed to

plead ignorance of the agent /advocate’s dealings.
In the case of Twiga Chemicals Industries Ltd vs. Viola
Bamusedde, CA 9/2002 held that a man or woman empowers an
 agent to act for him or her is not allowed to plead ignorance of his or
her agent’s dealings.

In the case of Bikwere & Anor vs Namaka HCMA No. 297/2014

held that the decision in Twiga Chemicals Industries Ltd vs. Viola
Bamusedde, CA 9/2002 is instructive that a man or woman who
empowers an agent (advocate) for him or her is not allowed to plead
ignorance of the agent’s dealings. That the rule in our civil procedure
rules is re-emphasized under the provisions of O.3 r 1 of the civil
procedure rules. That in this case a person who appeared in court on
behalf of the applicants was fully instructed Advocate. He had authority
to act on their behalf as he did. There was no contrary court order
requiring the parties to appear in person and there is no evidence of
collusion, or fraud.

O.3 r 4 civil procedure rules appearance allows Service of process on

advocate. Any process served on the advocate of any party or left at
the office or ordinary residence of the advocate, whether the process is
for the personal appearance of the party or not, shall be presumed to
be duly communicated and made known to the party whom the
advocate represents, and, unless the court otherwise directs, shall be
as effectual for all purposes as if the process had been given to or
served on the party in person. In the case of MulengaVStanbic Bank
(U) Ltd (No. 200 of 2013) Court held that a lawyer could not receive
court process on behalf of his client unless he is a duly authorized
agent under the provisions of Order 3 of the Civil Procedure Rules. A
lawyer cannot take action without instructions.

d) Appearance by a party’s Authorized agent.

 O.3 r 1 civil procedure rules appearance may be made or done by
recognized agent.
 O.3 r 2 civil procedure rules provides for recognized agents. The
recognised agents of parties by whom such appearances, applications
and acts may be made or done are— (a) persons holding powers of
attorney authorising them to make such appearances and applications
and do such acts on behalf of parties; and (b) persons carrying on trade
or business for and in the names of parties not resident within the local
limits of the jurisdiction of the court within which limits the appearance,
application or act is made or done, in matters connected with such
trade or business only, where no other agent is expressly authorised to
make and do such appearances, applications and acts.

In the case of Jeshang Popat Shah v Meera Investments Ltd

HCMA No. 747 of 2002 Court held that O.3 r 2 of the civil Procedure
rules gives the list of persons who are recognized agents to cases. That
they are (a) persons holding powers of attorney authorizing them to do
certain acts on behalf of parties, (b) persons carrying on trade or
business on behalf of foreigners, within Uganda. That O.3 r 2 CPR does
not require that anyone to act as agent of any party should or should
not be of any description, status, occupation or ceiling etc. The rule as
it stands would be satisfied by any adult who is of sound mind. That
adult may be an industrialist, a fanner, a doctor, an accountant, a
lawyer, a banker etc. That agent could even be someone who is
employed. That if the agent happens to be a solicitor or barrister
outside Uganda and has not obtained a special practicing permit he or
she cannot have right of audience in Uganda and cannot legally
represent any party. That the defendant resides in the United Kingdom
and the plaintiff’s directors are well aware of the fact. That there is
nothing in our law which obliges him to appoint a local agent, from the
wording of O.3 r 2 CPR. That it is well known that a party to a case in
Uganda may appear in person or through an agent given authority by a
power of attorney.

 O.3 r 3 civil procedure rules appearance allows Service of process

on recognised agent. Processes served on the recognised agent of
a party shall be as effectual as if they had been served on the party
in person, unless the court otherwise directs. The provisions for the
service of process on a party to a suit shall apply to the service of
process on his or her recognised agent.

 In the case of Jas Projects Ltd v Emiru Angose HCT - CS - 280

– 2005 Court held that in order to have effected service upon the
receptionist, the receptionist would not only have to be the agent of
the Defendant but a recognized one within the meaning of order 3 r
1 &2; and in particular rule 2 thereof which states; “The recognized
agents of parties by whom such… acts may be made or done are:-
(a) Persons holding Powers of Attorney authorizing them to make…
and do such acts on behalf of parties; (b) Persons carrying on trade
or business for and in the names of parties not resident within the
local limits of Jurisdiction of the Court… etc (not relevant to this
case)”. That the evidence before Court does not suggest that the
service of summons on the Applicant/Defendant through the
receptionist was that by way of an authorized agent, indeed there is
no mention of any Power of Attorney to that effect. Court further
held that where service cannot be effected in the ordinary way then
the Plaintiff or his Counsel should apply for substituted service
rather than go ahead with an ineffective or desperate method of
service to remain within time. That there was no effective service.

 In the case of Jessy Technical Services Ltd & Anor v Ajay

Industrial Corporation Ltd & Anor (Misc. Appl. NO. 0617 OF
2012 and Misc. Appli. No. 616 of 2012) Court held that where it
is not practicable to effect service on the defendant personally, it
may be made on an agent empowered to accept service. The words
 “empowered to accept service” is read in the context of recognized
agents as prescribed by order 3 of the Civil Procedure Rules. An
empowered agent is an agent recognized under order 3 of the Civil
Procedure Rules. Court further held that the receptionist was not
proved to be an empowered agent of the second
applicant/defendant by the affidavit of service of the process server.
It was not proved that the 2 nd Applicant empowered the receptionist
at the offices of the first Applicant to accept service on his behalf.
Acceptance of service in the context of order 3 rule 1 is an "act"
which is required in any court to be done by a party. This is because
service has to be made on the defendant personally and therefore
acknowledgement of service is an act to be done by a party i.e. the
defendant. Consequently the definition of recognized agents by
order 3 rule 2 of the Civil Procedure Rules is applicable. In that rule
agents are defined as persons holding powers of attorney
authorizing them to make appearances and applications and do
such acts on behalf of the parties. Secondly it means persons
carrying on trade or business for and in the names of the parties not
resident within the local limits of the jurisdiction of the court. Finally
order 3 rule 5 of the Civil Procedure Rules provides that besides the
recognized agents described in rule 2 of the order, any person
residing within the jurisdiction of the court may be appointed an
agent to accept service of process. Order 3 rule 5 (2) specifically
provides that the agents so appointed shall be either special or
general and the appointment shall be by an instrument in writing
signed by the principal and a certified copy of which shall be filed in
court. That the receptionist described by the process server does
not fit the description of an agent authorized or empowered to
accept service by the second respondent. Court finally held that
there was no personal service on the second applicant/defendant as
prescribed by the rules. In practical terms therefore the registrar
was right to advise service of summons by substituted service as far
as the second applicant is concerned.

TOPIC IX

PARTIES TO CIVIL ACTION:

 Procedural law governs the mode of proceeding and machinery by

which the remedy is enforced while the substantive law defines the
righty being enforced. The determination whether a person is capable
of suing or being sued is procedural and governed by the law of the
forum, such as whether an action may be brought in the name of such
a person.

 On commencing a proceeding, a person becomes a plaintiff in an

action or an applicant on an application / cause or petition on a
petition. On filing an action and being served with summons or other
notice in an action, a person becomes a defendant without the
 necessity of the defence being filed or affidavit in reply or a
respondent.

 In the law of pleadings, it is necessary to establish the party to sue or

be sued and each pleading must contain at its head the name of the
defendant and the plaintiff.

 It is pertinent to determine the necessary parties or unnecessary

parties before filing a suit.

 Plaintiff as Dominae Letis: A plaintiff in civil procedure is free to sue

any defendant whom he thinks he has a claim and cannot be forced to
sue somebody. See; Animal Feeds V A – G [1990] HCB;

 In the case of Major Roland Kakooza Mutale vs. AG [2001-2005]

HCB 110, the Inspector General of Government applied to be joined as
a defendant in a suit against the Attorney General and his Lordship
Yorokamu Bamwine (as he then was) declined to after setting down the
principles under which an application of this nature would be allowed. I
quote;-

‘Generally speaking, under 0.1 r 10(2) CPR gives court wide

powers to strike out or add parties to suits. However such
addition cannot be for the sake of it. There must be a
compelling reason to do so. The principles under which such
application can be allowed are fairly known.

1. The plaintiff is at liberty to sue anybody he thinks he has a

claim against and cannot be forced to sue somebody. Where
he sues a wrong party, he has to shoulder the blame. See
Bahemuka vs. Anywar & Anor [1987] HCB 71.
2. Court has no jurisdiction under O.1 r 10(2) to order the
addition of parties as the defendants where the matter is
not liable to be defeated by non joinder when they were not
persons who ought to have been sued in the first place; and
where their presence as a party is not necessary to enable
the court effectively to adjudicate on all questions involved.
3. A defendant will not generally be added against the
plaintiff’s wish. See Coffee works (mugambi) ltd vs.
Kayemba HCCS No. 505/1963.

 A plaintiff is entitled to choose the person whom he/she wishes to

proceed against and to leave out any person against whom he/she
does not wish to proceed against. Read Kakooza Mutale V
AG[2001-2005] HCB 110; Dairy Corporation V Morris Ogwal and
Otai Samuel [2001-2005] HCB 115;

 Butemuka Vs Anywar and Another. [1977] HCB 77 ; A preliminary

objection was raised; that the Applicant had sued the 1 st Respondent
who would not have been a party to the suit and against the tenants
 already in occupation of premises. Held: That non-compliance with the
rules of procedure must not determine the proceedings if there is no
injustice caused to the parties. The present application fell under the
general rule; that the plaintiff is at liberty to sue anybody he thinks he
has a claim against and cannot be forced to sue somebody .

 Where a plaintiff proceeds against the wrong party, he has to shoulder

the blame Kakooza Mutale V AG and Anor.[ 2001-2005] HCB
110; Read Manzur Alam V The Embassy of Saudi Arabia

 On effect of suing a wrong party ; Where a plaintiff sues a wrong party,

court has to strike out the plaint Butemuka Vs Anywar and
Another. [1977] HCB 77; Read Manzur Alam V The Embassy of
Saudi Arabia; [see the distinction between a wrong party and a non-
existing party and the remedies available. See O.1 r. 10CPR; See
Narrottam Bhatia And Anor V Boutique Zhazim Limited HCCS
No. 411 of 1992;

 Importance of identification of parties; The choice of parties is

important in determining the mode of procedure, enforcement of
judgments, in obtaining remedies and costs. The parties must be
correctly stated otherwise failure thereof would result in loss of the
remedy against the wrong party as well as expenses.

 General Principles Governing Capacity to sue or be sued

 The general rule is that all parties with legal capacity can sue or be
sued. See RTD Col Dr. Kiiza Besigye & Others V The DPP & AG
Constitutional Petition No.12 of 2006; the constitutional court
reiterated the principle that only parties recognized by law as having a
legal existence can sue or be sued. Since the DPP was not a legal entity
but a department of the government that had no independent legal
existence and was not a suable entity.

 It is a well established proposition that in general only legal persons

can sue or be sued. Legal persons may be individuals, corporations,
corporation soles or companies, firms may sue or be sued in certain
circumstances. Eddie Rodrigues V The British High Commission
SCCA NO.8/87. Odoki JSC [ see Quotation in Manzur Alam V
The Embassy of Saudi Arabia HCCS NO.402 OF 2002

 A legal person is an entity that has the legal capacity to represent its
own interests in its own name, before a court of law, to obtain rights or
obligations for itself, to impose binding obligations, to grant privileges
for example as plaintiff or defendant; It is a status that is conferred by
law and not simply assumable. A legal person exists whenever a law
recognises, as a matter of policy, the personality of any entity,
 regardless of whether it is naturally considered to be a person or not.
See Kakooza Mutale V AG and Anor.[ 2001-2005] HCB 110
 In the case of V.G Keshwala v. M.M Sheikh Dawood (Misc. App.
NO 543 OF 2011 Court held that a suit filed by a nonentity cannot
be cured by substitution of the nonentity neither can the plaint filed by
a nonentity or a suit against a nonentity be sustained or amended
because it discloses no cause of action. That by analogy a nonentity
incorporates the legal doctrine of a capacity to sue and establishes the
same that only a party with legal capacity to sue can bring an action in
a court of law. The Tanzanian case of BabubhaiDhanji Pathak V.
ZainabMrekwe [1964] EA 24,was cited where a suit was filed in the
lower court in the name of a dead plaintiff 45 days after her death and
an application to substitute the deceased plaintiff under order 1 rule 10
was allowed in ignorance of the fact by the Magistrate. On appeal to
the High Court Law J held at page 26: “A suit instituted by a dead
person is a nullity. The power to substitute a plaintiff where a suit has
been filed in the name of a wrong person, conferred by Order 10, r.
1(1) in the First Schedule to the Indian Civil Procedure Code, can only
be exercised where the “wrong person” was living at the date of
instituting the suit, and has no application where the “wrong person”
was dead at such date.
 All legal persons can sue and or be sued . There are however
differences in procedure thus it is necessary to establish the right
parties to the suit. See discussion on commencement of suits
 Note He/she who is empowered to sue is also made liable by necessary
implication to be sued. In the case of the Commissioner General
Uganda Revenue Authority v Meera Investments Ltd Civil
Appeal NO.22 OF 2007 Kanyeihamba JSC held that the rights, powers
and obligations prescribed under the Uganda Revenue Authority Act
are not exclusive to the Authority. That if the Commissioner General
can sue to recover tax, he or she can be sued by a party unhappy with
the tax assessments made by the Commissioner General or officers
under him or her.

 Difference Btn Capacity & Locus to sue

 Locus standi is the right that one has to be heard in a court of law or
other proceedings. Once one has a direct interest in a matter, then one
is eligible to claim relief in respect of that matter if that one’s interest
is being adversely affected. Such person is said to have locus standi
and his or her cause of action is disclosed. See Kithende Appolonaris
Kalibogha and another vs Mrs Eleonora Wismer, CACA No.34 of 2010.
In civil matters a person must be a person aggrieved before such a
person can have locus to appear in court.
 In the case of Sentiba Gordon & 2 Ors Vs Inspector of
Government (SCCA NO 06 OF 2008) the appeal raised several
issues of great public importance concerning the legal capacity and
locus standi of the Inspectorate of Government, limitations on the
investigative powers of the Inspectorate, the role of the Attorney
General as the Principal Legal Advisor to Government and the
 Independence of the Judiciary. The main issue on appeal was whether
the respondent has legal capacity to sue and be sued. Other related
sub issues was whether the respondent had locus standi to bring the
proceedings, whether the respondent can intervene in civil actions
where the Attorney General is a party representing Government and
whether it can intervene as an aggrieved third party in proceedings
where it is not a party. Odoki C.J (by then) held that there is nothing
in the Article 227 or Section 2 of the Act which confers on the
respondent corporate status or legal capacity to sue or be sued. That if
Parliament had wanted to confer corporate status on the respondent
nothing could have stopped it from doing so, but it did not in its
wisdom do so. There is no provision in the Constitution, the
Inspectorate of Government Act or any other law which confers
corporate status on the respondent and it would be wrong for the Court
to confer such status on the respondent when Parliament in its wisdom
did not find it necessary to do so for effective enforcement of the
powers of the respondent. That it is trite law that the Attorney General
is the Principal Legal Advisor to Government as provided for in Article
19(3) of the Constitution, and that the legal opinion of the Attorney
General is generally binding on Government and public institutions like
the respondent. See Bank of Uganda vs Bank Arab Espanol. Therefore,
the respondent is not correct in submitting that it can intervene or take
over a case where the Attorney General has decided not take action or
taken a different action in order to save the Government from losing
colossal sums of money. The respondent is a creature of the
Constitution and Statute and its functions and powers are clearly laid
down in those legal instruments. It is not the function of the Courts to
confer corporate status or legal capacity or similar powers on public
institutions or bodies which are not specified in the parent or enabling
laws. In the present case the powers of the respondent to investigate,
prosecute criminal cases, or make other orders, are not affected by the
absence of legal capacity in civil cases. Indeed, the respondent may
make applications in appropriate cases involving corruption and abuse
of office.

 Individuals
 While most individuals may sue or be sued, limitation exists with
regard to certain types of persons like children, incompetent persons,
aliens and convicts. Adults of sound mind are competent parties and
they are competent to institute a civil action.

[See S. 117 of the Evidence Act on competence of witnesses being

persons of age and sound mind, [see also Article 31 of the constitution,
on the majority age being 18; Cf age for civil proceedings being 21
before the 1995 constitution, see Article 273 of the constitution].

In the case of George Paul Emenyu & Anor. V AG [1994] V KALR

109 Okello J held that a person is guilty of contributory negligence if he
ought to have foreseen that if he did not act as a reasonable prudent
 man, he might hurt himself and he must take into account that others
may be.

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

0184-2001[2006]; Read Kiga Lane Hotel Ltd V UEDCL HCT-00-
CV-CS-0557-2004

 Natural persons who are full and mentally competent can sue or be
sued without limitation. Upon death such a person ceases to exist as a
party and actions on behalf of the estate are taken in a representative
proceeding by the executors or administrators of the estate. See s.192
of the Succession Act and O.31 CPR.
 Administrators and Executors
 The Administrator of an estate of a deceased person is appointed by a
grant of letters of administration, while the executor named in a will is
appointed by court through grant of letters of probate. The rules
provide that administrators or executor of the estate of the deceased
person may sue or be sued on behalf of or representing the estate
without joining any of the beneficiaries.

 Sec. 192 of the Succession Act provides for the effect of letters of
administration. Letters of administration entitle the administrator to all
rights belonging to the intestate as effectually as if the administration
has been granted at the moment after his or her death.

 Sec. 180 of the Succession Act provides for character and property of
executor or administrator. The executor or administrator, as the case
may be, of a deceased person is his or her legal representative for all
purposes, and all the property of the deceased person vests in him or
her as such.

 Read O.31 CPR.

 In the case of Michael Mulyanti & Anor v Jackeline Batalingaya &

3 Ors (Civil Suit No.434 of 2008) the issue was whether the Plaintiffs
have locus standi to bring the suit. Court held that indeed under
Section 180 of the Succession Act an administrator of a deceased
person is his or her legal representative for all purposes and all
property of the deceased person vests in him or her as such.
Furthermore, under Section 192 and 193 of the Succession Act Letters
of Administration vests in the administrators all rights and interests
belonging to the intestate as effectually as if administration had been
granted at the moment after his or her death: See Khalid Walusimbi
v Jamil Kaaya& Another [1993] IKALR 20. In the instant case, the
Plaintiffs as administrators and beneficiaries to the estate of the late
Moses Mulyanti are clothed with power to oversee the estate of the late
Moses Mulyanti, including bonafide or lawful occupancy, if at all they
subsisted. Prima facie therefore, the Plaintiffs capacity and the nature
of their claim clearly establishes a cause of action, hence locus standi
to institute and prosecute this suit. That establishing locus standi is
 different from proving it because the latter deals with proof by
evidence whereas the former involves looking at the Plaintiff’s
pleadings.

 Beneficiaries of deceased’s estate.

 A non-holder of Letters of Administration who is a beneficiary has locus
standi to institute proceedings in respect of the estate. The Supreme
Court in the case of Israel Kabwa vs Martin Banoba Masiga Civil
Appeal No.2 of 1995 (SC) upheld the holding of the trial judge that
the respondent’s locus standi was founded on his being the heir and
son of his late father. Tsekooko JSC held as follows: “The editors
of Williams and Mortimer on Executors, administrators and
Probate(15thEdition of Williams on Executors and 3 rd Edition of
Mortimer on Probate) at pp. 84 and 454 et seq show that an
intending applicant for Letters of Administration can institute
an action to stop trespass to a deceased’s land. .... (This
ground) would still fail, in my view, even if no letters of
administration had been obtained because the respondent’s
right to the land and his developments thereon do not depend
on letters of administration.”

 In the case of Jacob MutabaziVs. Seventh Day Adventist Church

& Anor (Civil Suit No. 054 of 2009) the plaintiff, a one Jacob
Mutazindwa sued the first and second defendants for trespass and/or
fraudulent acquisition of land situated at Kireka hill. The plaintiff
contended that he is a bonafide occupant and thus lawful owner of land
currently held by both defendants, being the heir and sole surviving
descendant of his father, a one Enoch Mwambali, from whom he
purportedly derives legal title to the land. No evidence was adduced in
court to prove that the plaintiff is indeed Mwambali’s customary heir.
However, according to the record the plaintiff had secured a certificate
of no objection to the grant of letters of administration and was on
course to secure Letters of Administration in respect of Mwambali’s
estate. On the question of the locus standi of a non-holder of Letters of
Administration to institute proceedings in respect of the estate, that
the Supreme Court in the case of Israel Kabwa vs Martin Banoba
Masiga Civil Appeal No.2 of 1995 (SC) upheld the holding of the
trial judge that the respondent’s locus standi was founded on his being
the heir and son of his late father. Tsekooko JSC held as follows: “The
editors of Williams and Mortimer on Executors, administrators
and Probate(15thEdition of Williams on Executors and
3rd Edition of Mortimer on Probate) at pp. 84 and 454 et
seq show that an intending applicant for Letters of
Administration can institute an action to stop trespass to a
deceased’s land. .... (This ground) would still fail, in my view,
even if no letters of administration had been obtained because
the respondent’s right to the land and his developments
thereon do not depend on letters of administration.” That on
 the basis of the foregoing ruling, the plaintiff does have locus standi to
institute the proceedings.
 Donees of Power of Attorney

 A holder of power of attorney ought to take proceedings in the name of

the owner of the property, the donor. Suit instituted in the name of a
donee of a power of attorney should be struck out for being a nullity.
 In the case of M/s Ayigihugu & Co. Advocates V Munyankindi
Muteeri;[1990-91] KALR 194; a firm of advocates was a donee of
special power of attorney which empowered it, inter alia, to commence
and continue proceedings on behalf of the donor. While exercising the
power of attorney the firm took on action to court against the
defendant in its names. Tsekoko J (as he was) took note of the
position and held that since the plaintiff was a donee of power of
attorney he did not have a cause of action and therefore he could not
institute a suit in his own name. He was an agent and he could only sue
in the name of the principal.

 A power of attorney which does not authorise the done to institute a

suit cannot be used to file a suit and the suit is bound to be struck out
having been from the beginning a nullity and life cannot be
subsequently breathed into it as this is not a mere defect in authority
but a complete lack of it and cannot be ratified thereafter. See Vijay
Morjaria v Nansung Madhusingh Darbar Civil Appeal No. 06 of 2000.

 The Court may however order that appropriate parties be substituted in

the interest of justice. In the case of Kateregga Paul vs Tugume
Jackson HCMA No.885 of 2014 the respondent raised the issue of
locus standi of the applicant in which he contended that the applicant/
plaintiff was not the rightful party to sue him since the applicant had
instituted the main suit on the basis of a powers of attorney where he
was “the donee of the powers of attorney from which he derived his
powers of attorney to institute the suit. The issue was whether the
applicant/plaintiff has the requisite locus standi to institute the current
application. Court held that the contested powers of attorney when
read do not explicitly provide that its donee may sue or be sued in his
own names. However, reading of Order 1 Rule 10 of the Civil
Procedure Rules the law therein empowers a court to order that the
appropriate parties be substituted if it is in the interest of the justice of
the matter to do so. That the Applicant’s names be substituted with
those of the donor of the powers of attorney.

 In the case of Bizimana David & 2 others vs. Johnson HC Civil

Appeal No. 52 OF 2008 a preliminary objection raised that the
claimant had no cause of action or Locus Standi to sue the Defendants
and that the Suit was wrong in law in that it was brought in the names
of the alleged Attorney rather than the mother who is allegedly the
donor of the powers of Attorney. Court held that the test was whether
 the plaintiff had a cause of action. That the error was not fatal to the
plaintiffs cause of action. Order 1 rule 10 of the Civil Procedure Rules,
permits that at any stage of the Suit if satisfied that the suit has been
instituted through a bona fide mistake, and that it is necessary for the
determination of the real matter in dispute to do so the court may
order for substitution or addition of parties as it thinks fit. That the
Claimant’s Advocate who is presumed to be more knowledgeable on
the procedural Law paid no attention to these available avenues.

 Companies & Directors/ Shareholders and Companies

Limited by Guarantee

 Companies are competent parties that can sue or be sued in their

corporate names. The most outstanding feature of an incorporated
company is its corporate personality. The corporation is a legal entity
distinct from its members and directors. Read Companies Act, 2012.
Salmon —V-Salmon[1897]AC22,
In the case of Kabale Housing Estates Tenants Association v
Kabale Municipal Local Council (CIVIL APPLICATION NO.15 OF
2013 the main issue for determination was whether Mr. Rwaganika
was duly instructed to represent the Applicant. KITUMBA J.S.C held that
Mr. Rwaganika was only instructed by a few members of the company
to represent them and not the company itself. As counsel he should
have known how to proceed to represent the minority shareholders and
not the company. That his instructions as counsel for the applicant had
ceased when the applicant passed the special resolution appointing Mr.
Mwebesa as its counsel. That where a wrong has been done to the
company and an action is brought to restrain its continuance or to
recover the company's property or damages or compensation due to it,
the company is the true plaintiff. See: Gray Vs Lewis [1873]8 Ch App
1035.The appropriate agency to start an action on behalf of the
company is the board of directors, to whom the power is delegated as
to manage the affairs of the company. See: United Assurance Co. Ltd v
A.G [1995] KALR 308. Court further held that in instances where a
shareholder is aggrieved with what the directors or majority
shareholders did, the shareholder could bring a derivative suit on
behalf of the minority.

 A company is a separate legal entity from its directors, shareholders

and other members. In Sentamu V UCB [1982] HCB, the plaintiff was
a majority shareholder and director of a company that borrowed money
from the defendant bank and failed to pay prompting the defendant to
cause his arrest and imprisonment. The plaintiff sued for damages
arising out of unlawful arrest and false imprisonment. It was held that a
company is a separate legal entity from its directors, shareholders and
other members. Those individual members of the company are not
liable for the company debts. It was thus unlawful to arrest the plaintiff
 for failure by the company to pay its debts, as the proper party was the
company.

 Where a plaintiff proceeds against a director of the company for

actions /omissions of the company, the suit may be struck out as being
against wrong party. In the case of Lukyamuzi James V Akright
Projects Limited and Anatoli Kamugisha HCCS No. 319/2002; the
second defendant, a director in the 1 st defendant Company raised a
preliminary objection to the effect that he was improperly joined as a
party to the suit since the act complained of were allegedly those of
the Company and therefore a separate legal entity from its Directors.
Justice Arach Amoko held that it was clear that whatever the 2 nd
Defendant did in respect of the sale transaction he did in the company
name and not in his name. He signed the sale agreement ‘For Akright
Projects Ltd’ and issued a cheque on account belonging to Akright
project Ltd and not his personal account. Relying on the case of
Solomon vs. Solomon that the company is at law a different person
altogether from subscribers and that though it may be after
incorporation the business is precisely the same as it was before, and
the same persons are managers, and the same persons receive profits,
the company is not in law the agent of the subscribers or trustee for
them. Nor are subscribers, as members, in any shape or form, except
to the extent and in the manner provided by the Act. That it follows
that the 2nd defendant as a director of the 1 st defendant is not liable for
any acts or omissions of the 1 st defendant. That he was a wrong party
to the suit and his name accordingly struck out with costs.

 Corporate personality however cannot be allowed to be bluntly used as

a clock for the fraudulent or improper conduct of the company’s
members. In the case of Lea Associates Limited v Bunga Hill
House Ltd High Court Misc. Appl. No. 348 of 2008 was an
application seeking leave to amend its pleadings to include Chris
Wilson a director of the Respondent as Co defendant. Court held that it
is an undisputed fact that at all material times Chris Wilson was the
Managing Director of the Respondent Company. That the most
outstanding feature of an incorporated company is its corporate
personality. The corporation is a legal entity distinct from its members
and directors. That the Applicant cannot maintain a claim for
Commission from the Respondent’s director Mr. Chris Wilson. Court
further held that however, Corporate personality cannot be allowed to
bluntly be used as a clock for the fraudulent or improper conduct of the
company’s members. That in the intended Amended plaint, the
Applicant has shown that it has a right to financial gain and that it has
suffered loss thereof due to the fraudulent conduct of the Respondent.
That whether Chris Wilson the director committed the alleged acts of
fraudulent is a matter for courts determination, not at this stage but
upon evidence adduced by both parties. That the intended amended
Plaint discloses a cause of action against the intended 2 nd Defendant.
 The alleged applicants financial loss; whether caused by the
Respondent’s breach of the Agreement between the Respondent and
the Applicant or by the Intended 2nd Defendant’s allege fraudulent
conduct, arises from the same translation, that is the sale of the
Respondents property. The amendment sought will not cause any
injustice to the Respondent. Multiple suits will thereby be avoided.
Considering all the above the court allowed the application to add Mr.
Mr. Chris Wilson as a second defendant and to amend the plaint.
 Authority to commence a suit in the names of a Company
 Question is whether it is mandatory for a company to pass a resolution
authorizing commencement of a suit. To bring a suit in the names of
the company there must be authority from the company. There must
be a special resolution authorizing the suit. In the Bugerere Coffee
Growers V Ssebaduka [1970] EA 147; held that when a company
authorizes commencement of legal proceedings, a resolution has to be
passed, either by the company’s meeting or the Board of directors’
meeting and recorded in the minutes. In that case, no such meeting
was held to authorize the advocates to commence the suit in the
company’s name.

 The company must authorise the suit in its name when it is in

receivership. See Bamford vs Bamford [1961] 1 ALL ER 969.
 Unless the law specifically required it, a resolution to authorise
commencement of a suit by the company is not necessary. In the
case of United Assurance Co. Ltd vs. AG SCCA No. 1 of 1986,
Wambuzi C.J held ‘‘that a resolution is one of the ways of proving the
decision of the Board of Directors, and that unless the law specifically
insisted on a resolution, he was not prepared to insist on it. Authority
to bring action in the name of the company is not one of the instances
where the Companies Act required a resolution.’’

 In the case of Contraction Engineers & Builders Ltd V The New

Vision & 3 Othrs [1994] III KALR 37; Court held that the fact there
are no shareholders of the Plaintiff Company in Uganda and PWI
(Managing Director) is the sole director of the company in the country,
and according to him when the article appeared in the newspaper he
went to Nairobi and held meeting with other directors to decide on
what course of action to take, and decided that the suit be filed
against the defendants in the name of the Company for redress. That
when he returned in Uganda and instructed a firm of advocates to file
this suit in the name of the company against the defendant, and
considering the authority in United Assurance Ltd vs. A.G and of the
available evidence, the authority given by the Managing Director to a
firm of Advocates to file a suit is effective authority for the suit to be
instituted.
 Fam International Ltd & Anor. V Mohamed El Fatih [1994] III
KALR 108 SC; N.K Radia Vs. Kakkybhai & Co. Ltd [1995] I KALR
87

 Unincorporated entities, Associations, NGOs, Churches,

Registered Trustees etc

 An unincorporated association is not a legal entity capable of suing or

being sued. An association or club that has not attained corporate or
quasi-corporate status by statute has no legal existence apart from its
members. Actions involving an unincorporated association are brought,
not in the name of the association, but in the name of members
involved either personally or in a representative capacity, or against
trustees of the property of the association.

 . These include clubs, associations, some NGOs and churches among

others. In Okwonga Vs Anywar &Another [1984 HCB] 45, In this
case, an action was commenced against the Church of Uganda and the
1st Respondent objected that C.O.U was not legal entity and could only
be sued through representative action. Held: it was held that
unincorporated organizations are not competent parties to suits. As a
religious organisation, the C.O.U. is not a corporate body to run its own
affairs. A board of trustees is constituted with the power to sue and be
sued. That being so, C.O.U was wrongly sued and plaint was struck off
subject to an application for amendment. [See O.1 R.10 CPR.

 Also Makula international V Cardinal Nsubuga [1982] HCB,

where the action was commenced against the cardinal yet the contract
was executed with the catholic church and court held that the action
could not be sustained except through a representative suit.

 However, some churches normally have a board of trustees registered

under the Trustee’s Incorporation Act. The board of trustees upon
registration acquires corporate status and is the suable entity. See S.4
of the Trustee Incorporation Act; Examples include the Board of
Trustees of Namirembe Diocese. For the Catholic Church, it is The
Trustees of Kampala Arch Diocese see also; the Uganda Muslim
Supreme Council.
In the case of The Trustees of Rubaga Miracle Centre V.
Mulangira Ssimbwa (Miscellaneous Application Number 576 of
2006 and Mulangira Ssimbwa A.K.A Afidra Milton V. The Board
of Trustees, Miracle Centre and Pastor Robert Kayanja
(Miscellaneous Application Number 655 OF 2005) (both
Applications arising from HCCS No. 768 of 2004). In the first application
the defendant sought to have the plaint rejected on the ground that
the defendant described as the Board of Trustees, Rubaga Miracle
Centre Cathedral is a nonentity and had no capacity to sue or be
sued. On the other hand the plaintiff in MA 655 sought leave to amend
 the plaint by adding Pastor Robert Kayanja. Justice Remmy Kasule held
that, where the amendment by way of substitution of a party purports
to replace a party that has no legal existence, the plaint must be
rejected as it is no plaint at all. He accordingly allowed the application
to reject the plaint and dismissed the application for amendment.
Justice Remmy Kasule (as he then was) went further to hold “… The
law is now settled. A suit in the names of a wrong Plaintiff or
Defendant cannot be cured by amendment … the Defendant described
as The Board of Trustees Miracle Centre Cathedral does not exist in
law. The attempt to add Pastor Robert Kayanja, is really an attempt to
substitute a non-existing Defendant. The law does not allow that as in
reality there is no valid plaint in the suit …”

 Government
 Government is a suable entity but suits by or against government are
initiated in the name of the A-G; Article 250(2) of the constitution
provides those civil proceedings by or against the Government shall be
instituted by or against the Attorney General; and all documents
required to be served on the Government for the purpose of or in
connection with those proceedings shall be served on the Attorney
General.
 Section 10 of the Government Proceedings Act provides for parties to
proceedings. Civil proceedings by or against the Government shall be
instituted by or against the Attorney General. Read Charles Harry
Twagira V AG, DPP & Sam Kyomukama [2008] HCB 28

 In the case of Attorney General & Peter Nyombi vs. Uganda Law
Society (Misc. Cause No. 321 of 2013) the issue was whether the
Attorney General can retain and instruct Kampala Associated
Advocates, a private legal firm to represent it and perform legal
services without complying with the Public Procurement Laws and
Regulations?. Court held that by appointing Kampala Associated
Advocates as counsel for the first applicant, the effect is that they were
vested with the authority of duly appointed advocates for the Attorney
General with full instructions to act on behalf and for the Attorney
General and entitling them to remuneration by the Attorney General
which comes from public coffers or the consolidated fund. In case the
respondent lost the case, then the latter would be liable for the costs
on a party-to-party basis. Consequently, that it was irregular for the
learned Attorney General to have retained the Kampala Associated
Advocates as lawyers to provide professional services to the Attorney
General without following the PPDA Act and Regulations as amended.

 Government is liable for acts of its employees committed in the course

of their employment. See S.3 of the Government Proceedings Act.[see
procedure of commencing suits against Government]; See Wakiso
 Cargo Transporters Ltd V Wakiso District Council & AG HCT 00-
CCCS 070/2004; Read Victor Juliet Mukasa & Anor. V AG [2008]
HCB 168;

 Local Government Council, Town Council, Municipal Council

 Local Governments; S. 6 of the Local Government Act as amended
confers legal status on local Governments; they can sue of be sued.
Read S.3 LGA for the definition of a local Government.

 Local Government council are the suable entities under the Act not
Local Administrations. See Kitgum District Administration V Print
and Stationary Suppliers CACA 44 of 1998. Action brought against
District administration after the enactment of the LGA, objection that
the suit was a nullity having been brought against a non-existent
entity. Held; that the District Council was liable, as it had by law
inherited the liabilities of the local administration. [Inapplicable to new
districts]

 Local governments have independent existence from the central

government and are liable for their acts or acts of their servants. See
Wakiso Cargo Transporters Ltd V Wakiso District Council & AG
HCT 00-CCCS 070/2004; The attorney General could not be held
liable for breach of a contract executed by the district as the district
had a separate legal existence from the central government. Read
Victor Juliet Mukasa & Anor. V AG [2008] HCB 168; Local
government administrative Unit is a body corporate capable of suing
and being sued in its corporate name under the Local Governments Act
 Alice Katungaza V AG [2002] EA. The plaintiff claimed damages for
injuries inflicted on her due to unlawful assault inflicted on her by her
teacher in the course of her employment. The Defendant raised an
objection that the AG was not liable as the officer concerned was an
employee of a local administration; Court found that the Government
and the local administration had a separate legal existence and were
distinct legal bodies. The suit had thus been brought against a wrong
party hence it was dismissed [see alternative remedies under O.1 r.10.

 Statutory Corporations;
 Bodies created by statute, which confers upon them a distinct legal
status. In effect, they can sue or be sued in their corporate name.
Examples; URA, see [action commenced in the names of the
Commissioner General of URA, See M/S Robo and Another V
Comm. Gen of URA CACA No.55 of 2003; Read The
Commissioner General URA V Meera Investments Limited SCCA
No. 22 of 2007

 Statutory Corporations have a distinct legal existence from the

Government; Read; Uganda Pentecostal University Ltd V The
 National Council for Higher Education and AG HCCA No.36 of
2005; appeal against decision of the National Council denying the
appellant a provisional licence. Preliminary objection that the council
was a body corporate with distinct legal existence from Government
and with capacity to sue or be sued in its corporate name. See S.4(2)
of the Universities Act No.7 of 2001; But reas Paul Nyamarere V
UEB in Liquidation [2008] HCB 126 on when a statutory
corporation may cease to exist. Read also Bagamuhunda
Vincent V UEB in Liquidation HCCS No. 400 of 2007

 Government Bodies/ Departments

 Some Government departments are conferred with a corporate status

and can sue or be sued in their corporate name. However, there must
be an enabling law conferring such status.

 The Registrar General is also a suable entity; See s. 4 of the Uganda

National Registration Bureau

 See The Administrator General’ Act Cap 157-sec. 2. administrator

General is a corporation sole and sue or be sued in such corporate
name. Administrator General V Uganda Posts &
Telecommunications Corporation; [1993] IV KALR 108;
observation by court that the Administrator General could sue the
defendant/respondent to recover the benefits accruing to former
employees of the defendant.

 Directorate of Public Prosecutions; just a department under the

ministry of justice and has no distinct legal existence; Charles Harry
Twagira V AG, DPP & Sam Kyomukama, Civil Appeal No.61 of
2002. That DPP is not a corporate body and therefore has no power to
sue or be sued and a suit commenced against it is incompetent. See
also RTD Col Dr. Kiiza Besigye & Others V The DPP & AG
Constitutional Petition No.12 of 2006.

 In the case of Sentiba Gordon & 2 Ors Vs Inspector of

Government (SCCA NO 06 OF 2008) Odoki C.J (by then) held that
there is nothing in the Article 227 or Section 2 of the Act which confers
on the respondent corporate status or legal capacity to sue or be sued.
That if Parliament had wanted to confer corporate status on the
respondent nothing could have stopped it from doing so, but it did not
in its wisdom do so. There is no provision in the Constitution, the
Inspectorate of Government Act or any other law which confers
corporate status on the respondent and it would be wrong for the Court
to confer such status on the respondent when Parliament in its wisdom
did not find it necessary to do so for effective enforcement of the
powers of the respondent. That it is trite law that the Attorney General
 is the Principal Legal Advisor to Government as provided for in Article
19(3) of the Constitution, and that the legal opinion of the Attorney
General is generally binding on Government and public institutions like
the respondent.

 Okello Okello V UNEB [1993] 11 KALR 36 ; held; that by virtue of

the functions of UNEB, it was a government department since it was
independent body seeking to observe the government overall
objectives in education. However, by its set up as a corporation sole,
the respondent had a choice whether to sue the board as an emanation
of Government or as an independent body.

 Non-statutory Bodies; only bodies conferred with a corporate status

can sue or be sued; in absence of a clear provision conferring such
status, then such body can’t sue or be sued as a legal entity. Amos
Mugisha & Sons V Chemical Industries V DAPCB & NRM
Secretariat[1990-91]KALR 38; That the Movement Secretariat had
no distinct legal existence and could not be sued as such

 Foreign Missions and Diplomatic Agencies

 Foreign/Diplomatic Missions or Embassies; Entitled to Immunity from

criminal and civil proceedings; see the Diplomatic Immunities Act. See
the category of officers entitled to Immunity; No immunity in case of
commercial transactions; Eddie Rodrigues V The British High
Commission SCCA NO.8/87. Held that if a government or one of its
departments goes into the market places of the world and engages in
straight forward commercial transactions, then its within the territorial
Jurisdiction of the courts of the foreign Sovereign. The sovereign can’t
claim immunity in respect of such transactions. See Ndibarekera V
The United States of America HCCS NO.786/97. [Also discusses
the mode of service on a foreign Government]

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

2002 Suit for recovery of immovable property against the Embassy;
issue as to whether Court had Jurisdiction to entertain the suit. Held;
That the property in dispute being immovable and situate in Uganda,
court has jurisdiction to entertain the dispute over it. As to the proper
party to be sued; Held; that the Embassy of Saudi Arabia should not
have been sued as such. The proper defendant ought to have been the
Kingdom of Saudi Arabia. That an embassy is a branch and therefore
an emanation of the Government of the sending state and holds
property on its behalf. The action therefore should have been brought
against that Government Manzur Alam V The Embassy of Saudi
Arabia HCCS NO.402 OF 2002; [see remedies available where a
wrong party is sued; O.1r.10 CPRs. [read full decision]
 Partnerships

 Suits by or Against Partnerships: O.30 R 1; A partnership has no

distinct legal existence from the partners. [Compare a company]. See
Benjamin Sajjabi/T/A Namataba V Timber Manufacturers
Limited [1978] HCB 202; Held; that as the defendant was not a
limited liability company, it had no legal existence. Read; Read;
Geoffrey Gatete & Anor. V William Kyobe [2007] HCB Vol.1 54

 The suit is commenced against named persons [all normally trading as

a partnership] not a suit against the firm. A suit may be brought
against a partnership even though it has been dissolved. In Nterekeya
Bus Service V Rep of Kenya 196691) ALR Comm 452, it was held
that a firm has no independent existence apart from its individual
members who carry on business both as principals and as agents of
each other within the scope of the partnership business. That the firm
is a mere expression not a legal entity. The conviction of a firm name
was thus a nullity.

 O. 30 r 1 allows partners to be sued in the firm name and it is not the

partnership being sued. The plaintiff may insist on full disclosure of the
names of persons constituting a partnership. Horra Vs Horra [1959]
EA 981 (K). . In that case, the defendants formerly constituting a
partnership, which had been dissolved, were served personally. Three
persons entered appearance but filed a joint defence. The Plaintiff
applied to strike out a defence as individual persons did not describe
themselves as partners in the partnership firm. Held; that a claim may
be enforced against a partnership without making all the partners
parties thereto. Held: The partners were not sued in the firm name in a
manner envisaged under O. XXIX, r1, CPR [now O.30]. The Plaintiff
should have sued the defendants trading as the Colonial Printing Works
to conform to the Order. Having not done this, he decided to sue them
individually and as partners of the firm on their joint liability in
partnership.

 See also Sarwan Singh Vs Karan Singh [1963] EA 423 (K).

Observation by Newbold P. that power to sue in a firm name is merely
procedural but it is proper pleading to set out the names of the
partners in the plaint. (See Kasana Produce Vs Kato [1973]).
Johnson VS Moss (1969) EA 654.

 Maki V Saidi [1961] 1 ALL NLR 502; That in order to succeed

against a partnership, the action must be brought; against all members
of the firm, against the firm in its registered name, against one or more
partners as representatives of the firm. Read; Reliable African
Insurance Agencies V NIC (1979) HCB 58; Read also; Kaggwa V
Sohan Singh & Co.(1972) HCB
 Suits By or Against Minors and Persons of Unsound Mind: O.
32.

 In general, subject to special rules of procedure, a minor may sue or be

sued but he may not in person assert his rights in a court of law as the
plaintiff or applicant nor make himself liable as a defendant or
respondent for costs.

 O.32 r1. Every suit by a minor shall be instituted in his names by a

person who in such a suit shall be called the next friend of the minor. O
32 r 4 (1): Any person who is of sound mind and has attained majority
age may act as a next friend of a minor or as his guardian ad litem
provided that the interest of such person is not adverse to that of the
minor and that he is not in case of the next friend a defendant or in
case of a guardian ad litem a plaintiff.

 Who is a minor? Kiddu Musisi Vs Iyamulemye and Another [1965]

HCD 87; Since the word minor is not anywhere defined in order 29, the
court applied common law and interpreted the word minor as being a
person who has not attained the age of 21[See Article 31 of the
constitution on age of majority and Article of 274 on interpretation of
existing laws.]

 Samwiri lyamulenge vs Jovana’s Nyirakamarande 1995] IV

KALR 16 – suit by a minor the issue of whether a married woman
aged 20 years was a minor required to sue through a next friend for
purpose of divorce.

 Consent of the Guardian – O 32 R 4(3): No person shall be appointed as

a guardian ad litem without his consent.

 Person capable of being next friend: Any adult person of sound mind
within the jurisdiction whose interest is not adverse to that of the minor
or is not a defendant or plaintiff in the case involving the minor may be
eligible to act as a next friend. S. Wasswa & Anor. V Daniel
Sentenza (1977) HCB 88; that O.29 provides for the removal of a
next friend whose interest is shown to be adverse to that of the person
of unsound mind. The court therefore ordered the next friend to cease
acting as next friend upon evidence that his interests were adverse to
the person of unsound mind. [See O.32 r.4(1)]
 In the case of Semyalo Michael versus The Registered Trustees
of Kampala Arch Diocese SCCA No. 12/2009 , the appellant had
contributed money to enable the diocese purchase shares in trust and
further contribution was made in the names of his three-infant
daughter. The appellant who had also sued on behalf of the daughters
as a next friend entered a compromise on their behalf without himself.
Justice Tsekooko JSC held that there is no law or practice in this country
which makes it mandatory for parties with similar causes of action to
 institute one and only one suit. However, because of necessity of
convenience and need to save time and cost, parties who have the
same cause of action are encouraged to institute one suit and this is
common practice of procedure set out in Order 1 CPR. That on the face
of the appeal there can be no doubt that the cause of action of each of
the 13 plaintiffs in the original suit were similar if no identical. That
although the appellant acted as his daughter’s next friend, which is the
requirement of the law (see Order 32 r 1 CPR) each of the three
daughters had her own independent though similar cause of action and
accordingly each plaintiff was free to pull out of the suit before the
compromise was sealed by court. That the appellant being a next
friend in the same suit did not necessarily mean that if he consents to
the judgement in favour of his daughters, he must necessarily also
consent to the compromise judgement with regard to his own interest
so long as his act is not compromising claim and did not prejudice the
interest of any of his daughters, and that there is no evidence to show
that the appellant’s refusal to compromise his own interest originally in
the suit prejudiced the interest of his three daughters.

 Preference will be given to the father or mother or guardian . Some

other of the relatives or connections of the minor or their nominees
may qualify but they must be substantial and proper persons.

 Legal effect of absence of a next friend:, O. 32 r 2: if a minor is made a

plaintiff without a next friend, the proceedings may be set aside and
the plaintiff’s solicitors may be ordered to pay costs to the defendant in
that suit. This principle too applies when the minor is made a co-
plaintiff without a next friend otherwise the minor’s solicitors may be
ordered to pay the defendant the costs occasioned by the misjoinder.
Geihuge V Gibbs [1897] ICH 479. This was an action instituted in
court without the knowledge of the solicitors that a person joined as co-
plaintiff was a minor at the commencement of the suit. Held: That
when an action is brought in the name of the person as plaintiff without
his authority and he subsequently repudiates the action, the defendant
on an application may obtain an order for payment of costs by the
solicitor who instituted the suit. In a case where an infant was joined as
a co-plaintiff by solicitors on assumption that he was of full age, they
were liable to pay the costs of the suit when the minor applied for his
name to be struck out.

 Lui Bagyenda & Anor vs loyce Kikubanja Bagyenda 1994] IV

KALR 46; suit by a minor – next friend , question whether a 19 year
old co- applicant for the grant of letters of administration without a
next friend rendered the application a nullity even if the other joint
applicant was an adult.

 Hajji Sabiti Musoke Vs Uganda L.M [1978] HCB 129. During the
trial it came out that the 3rd Plaintiff was a minor and counsel for the
defendant applied that the suit be taken out of the file under O 32, r1.
 Held: That the proceedings were irregular and could only continue if
the plaint was amended to include the next friend. A plaint by a minor
without authority of the next friend is improper and must be taken off
the file but can be re-filed in accordance with the law.

 Kabatoro Vs Namatovu (1975) HCB 159; A plaint instituted by a

minor without a next friend as required by law. Held; that Order 32 r 3
is mandatory and requires that a suit brought/instituted by a minor
without attaching a next friend’s authority is incompetent and should
be struck out. When a suit is instituted by a minor without a next
friend, the plaint is to be taken off the file. [Jingo Vs Kabagiza
(1974) HCB 294 and Kiralire V Salongo MB 74 of 1964

 Effect of non-compliance, whether it render the suit liable to be

dismissed: Rules 1 and 2 of O 32 are only directory and not mandatory
and non-compliance with them does not automatically lead to the
throwing out of the suit. Court has discretion under r 2(1) to either take
the plaintiff off the file or make such other order in the premises as it
may deem fit e.g. amendment to include the next friend. Musoke Vs
Uganda Co-op. Savings [1978] HCB 189.

 Guardian ad Litem; When the defendant is a minor court shall

appoint guardian Ad litem. The rule is mandatory and a decree
obtained without the appointment of a guardian is a nullity. Credit
finance Corporation Ltd Vs Kamali [1965] EA 545 (K). Suit
against a minor with no guardian ad litem appointed where decree was
made thereof was a nullity.

 Objection under O.34 r 3 ; Held: That without a qualified guardian ad

litem a minor can become a party to a suit and any decree exparte
without such appointment is a nullity.

 Kiddu Musisi Vs Iyamulemye and Another [1965] HCD 87.; Held:

All suits brought against a minor must be through guardian ad litem i.e.
a guardian appointed by court for the purpose of the suit.

 Re Brockle Bank: A man cannot be allowed to escape from payment

of a debt because the person to whom it is due is an infant. In such a
case the debtor will be entitled to cost if he asked for it. However, an
adult person named on security for costs of a summons. But he makes
no such an application but allows the summons to proceed in the
ordinary way.

 Removal of a Guardian: a guardian whose interest is adverse to that of

the person of unsound mind may be removed under O. 32 r 9.
Wasswa Vs Senteza [1977] HCB 88.

 NB: another next friend may be appointed where one is incompetent.

No two or more guardians are allowed for one minor, O. 29 r 4 (2). A
 guardian appointed by court shall not be replaced unless court
considers it in the best interest of the minor.

 The next friend is an officer of court appointed to look after the minor’s
interest and has the conduct of the proceedings in his hands but he is
not actually a party to the proceedings and is not, as next friend
entitled to apply them in person.

 Retirement of a next friend; O.32 r 8: A next friend may not retire

without showing that it is for the minor’s benefit that another next
friend should be substituted for him and that his proposed successor is
a fit and proper person and is not interested in the subject of the
proceedings. Substitution of a next friend: Where a person has been or
is next friend of a minor in any proceedings no other person is entitled
to act as the minor’s next friend in those proceedings unless the court
makes an order appointing him as next friend for substitution of a
person previously so acting.

 See; Representation of minor by next friend or guardian for the suit.

O.32 r 5 (1) and (2): Every application to court on behalf of the minor
other than an application under substitution rule shall be made by his
next friend or by his guardian ad litem.

 Agreements on compromise by next friend or guardian for the suit, O

32 r 6. Receipt by next friend or guardian for the suit of property under
decree for minor, O 32 r 6.

 Stay of proceedings for removal of a next friend O. 32 r 10.

 Retirement, Removal or death of a guardian for the suit, O32 r 11.
Infant plaintiff attaining full age, O 32 r 12.
 Application of rules relating to minors to persons of unsound mind;
O.32 r.15; Wasswa & Anor. V Daniel Sentenza (1977) HCB 88[ see
above]
 In the case of Thomas A.K Makumbi (Through Next Friend Patrick
Makumbi Vs. Josephine Katumba HCMA No. 316/2014 the
applicant a 97 year old male adult sued through next friend. The issue
was whether or not the next friend herein is properly before court,
given that the applicant had not been adjudged to be insane as
provided in O 32 CPR and the next friend allegedly had adverse
interest to the said applicants interests. Justice Monica K. Mugenyi
held that Order 32 CPR makes provision for suits by or against minors
or persons of unsound mind. That O 32 r 4(1) prescribes as persons
competent to serve as Next friend any adult of sound mind whose
interests are not adverse to those of the minor, and who is not a
defendant in the matter for which he acts as a next friend. That O 32 r
15 renders the foregoing applicable to persons adjudged to be of sound
mind and to persons who, though not so adjudged are found by the
court on inquiry, by reason of unsoundness of mind or metal infirmity,
to be incapable of protecting their interest when suing or being sued. In
 the instant case the written authority by Mr. Patrick Makumbi, the next
friend herein, was duly appended to the plaint as annexure A. That the
said next friend is a male adult, whose mental state is not in issue and
that there was no proof of any adverse interests between the present
applicant and Mr. Patrick Makumbi for purposes of the latter acting as
the former’s next friend. That the question was whether there is need
for such next friend in the first place, that is whether the applicant had
either been adjudged to be of unsound mind or though not so adjudged
had been found by court on inquiry by reason of unsoundness of mind
or mental infirmity, to be incapable of protecting his interests. Court
held that there is no evidence that the applicant has ever been
adjudged to be of unsound mind. That the issue then would be whether
he has been found by court on inquiry to be incapable of protecting his
interests owing to unsoundness of mind or mental infirmity. Court
further held that there is a distinction between unsoundness of mind
and mental infirmity. The Mental treatment Act Cap 279 defines a
person of unsound mind as ‘an idiot or person suffering from mental
derangement. That the question of insanity, lunacy or unsoundness of
mind did not arise in the instant application. The matter before court is
an application through next friend on account of mental infirmity
occasioned by old age. That the mental treatment Act makes provision
for the adjudication of persons of unsound mind. Section 2 thereof
specifically provides for an inquiry into such persons’ state of mind.
Court held that O 32 r 15 CPR is interpreted to mean that there is no
need for an inquiry as provided under the Mental Treatment Act in
order to invoke the applicability of rules 1 to 4 of the said Order to
persons with mental infirmity. That medical evidence will be sufficient
to establish such mental infirmity. In the result that the next friend
herein is properly before court and there is no preliminary question to
be tried in the matter.

 Others like Government and Private Schools, Universities,

Traditional institutions etc

 The Kabaka of Buganda is also a corporation sole that can sue or be

sued. See Article 246(3) of the 1995 constitution.

 In case of schools, unless owned by a company, the ordinary suable

entity is the management committee or the Board of governors. See
Harriet Grace Bamale(suing through her next friend) Kituma
Magala V The Board of Governors of Makerere College
school[1994] 1KALR 10
 Management committee Mengo primary school and Ors v
Ngabo Newspaper 1993] 1 KALR 115 on the issue of whether the
management committees of a primary school can sue or be sued .

 Effect of a suit against a wrong or Non-Existent Party &

Remedy
 A suit filed by a nonentity cannot be cured by substitution of the
nonentity neither can the plaint filed by a nonentity or a suit against a
nonentity be sustained or amended because it discloses no cause of
action. A nonentity incorporates the legal doctrine of a capacity to sue
and establishes the same that only a party with legal capacity to sue
can bring an action in a court of law.
 In the Tanzanian case of BabubhaiDhanji Pathak V. ZainabMrekwe
[1964] EA 24, a suit was filed in the lower court in the name of a dead
plaintiff 45 days after her death and an application to substitute the
deceased plaintiff under order 1 rule 10 was allowed in ignorance of
the fact by the Magistrate. On appeal to the High Court Law J held at
page 26: “A suit instituted by a dead person is a nullity. The power to
substitute a plaintiff where a suit has been filed in the name of a wrong
person, conferred by Order 10, r. 1(1) in the First Schedule to the
Indian Civil Procedure Code, can only be exercised where the “wrong
person” was living at the date of instituting the suit, and has no
application where the “wrong person” was dead at such date.

 In the case of Fort Hall Bakery Supply Co. Ltd V. Fredrick Muigai
Wangoe [1959] EA 474,the plaintiffs were an association consisting
of 45 persons trading in partnership for gain but their firm was not
registered under the Business Name Registration Ordinance. It was
submitted by the defendants that the Companies Ordinance prohibited
an association or partnership of more than twenty persons. The
plaintiffs were a group of persons not having legal existence under the
Companies Ordinance. The plaintiffs filed the suit in the name of “Fort
Hall Bakery Supply Company”. Templeton J agreed with the words of
Bankes L.J in BanqueI international De Commerce De Petrograd v
Goukassaow (3), [1923} 2 K.B. 682at p 688 that: “The party
seeking to maintain the action is in the eyes of our law not party at all
but a mere name only, with no legal existence."He concluded by saying
at page 475: "A nonexistent person cannot sue and once the court is
made aware that the plaintiff is nonexistent, and therefore incapable of
maintaining the action, it cannot allow the action to proceed. The order
of the court is that the action be struck out, as the alleged plaintiff has
no existence. Since a non-existent plaintiff neither pay nor receive
costs there can be no order as to costs."
 In the case of Parther Vs Mpekma: Held: That a suit instituted in the
names of a dead person is a nullity and O.1 r 10 can only apply if the
person was living at the time otherwise this suit was a nullity.

 Sajjabi Vs Timber Manufacturing Ltd: Held: That a nonexistent

person cannot be sued and no amendment can be made under O.1 r 10
because the rule applies only where the suit is in existence.

 In the case of The Trustee of Rubaga Miracle Centre vs.

Mulangira Ssimbwa (MA NO. 576/2006 nas Mulangira Simbwa
A.K.A Afidra Milton vs. The Board of Trustees, Miracle Centre
 Cathedral and Pastor Robert Kayanja M.A. No. 655/2005, in the
first application the defendant sought to have the plaint rejected on
ground that the defendant described as board of trustee, Rubaga
Miracle Cathedral is a non entity and has no capacity to sue or be sued.
On the other hand the plaintiff in M.A 655 sou8ght leave to amend the
plaint by adding Pastor Robert Kayanja. Justice Remmy Kasule held
that where the amendment by way of substitution of a party purports
to replace a party that has no legal existence, the plaint must be
rejected as it is no plaint at all. He accordingly allowed the application
to reject the plaint and dismissed the application for amendment.

 The law however empowers a court to order that the appropriate

parties be substituted if it is in the interest of justice of the matter to
do so under order 1 rule 10 (2) of the Civil Procedure Rules
 In the case of Kateregga Paul vs. Tugume Jackson HCMA No.
885/2014 an issue of locus standi was raised by the respondent in
which he contended that the applicant / plaintiff was not the right party
to sue since the applicant had instituted the main suit on the basis of
the power of attorney where he was ‘the done of the power of attorney
from which he derives his power to institute the suit. The issue was
whether the applicant /plaintiff has the requisite locus standi to
institute the application. Justice Peter Adonyo held that O 1 rule 10
CPR is to the effect that the law therein empowers a court to order that
the appropriate parties be substituted if it is in the interest of justice of
the matter to do so. That in the instant case the pleadings in this
matter show that there is a real dispute which must be settled on merit
rather than it be scuttled and left unheard. It was therefore ordered
that under O 1 r 10 CPR the applicant’s name be substituted with those
of Mr. Richard R. Stanley, the donor of the power of attorney and such
substitution be done within 10 days from the date of the ruling.

Pre Entry -2017/2018.

2. Who of the following has absolutely no capacity to be a defendant to

a suit?

A. A diplomat
B. A child of tender years
C. A person of unsound mind
D. A company in receivership
E. None of the above.

Pre Entry- 2010/2011.

38. An infant must file a suit in court through...

Pre Entry -2012/2013.

 41. How can a club which is unincorporated be sued?

TOPIC X

JOINDER OF PARTIES AND CAUSES OF ACTION

 All persons who are parties may be joined on one side as parties.

 In joining parties, the fundamental purposes is to enable court to deal

with matters brought before it and avoid multiplicity of pleadings. In
the case of Departed Asians Property Custodian Board vs Jaffer
Brothers Limited [1999] 1 EA 55 Mulenga JSC noted ‘in order for a
person to be joined to a suit on the ground that his presence was
necessary for the effective and complete settlement of all the
questions involved in the suit, it was necessary to show either that the
orders sought would legally affect the interest of that person and that
it is desirable to have that person joined to avoid multiplicity of suits,
or that the defendant could not effectively set up a defense unless that
person was joined or an order made that would bind that other
person.’’

 Joinder of Plaintiffs:
 O.1 r 1 provides that persons can be joined in one suit as in whom any
right of relief in respect of or arising out of the same act or transaction
or series of acts or transactions is alleged to exist, whether jointly,
severally, or in the alternative where, if those persons had bought
separate suits, any common question of law or fact would arise

 Joinder of defendants:
 O.1 r 3 provides that all parties can be joined as defendant against
whom any right to relief in respect of or arising out of the same act or
transaction or series of acts or transactions is alleged to exist, whether
jointly, severally or in the alternative where, if separate suits were
brought against those persons, any common question of law or fact
would arise. Example, joint owners of properties.

 Fatuma Osman Hussei vs Mahendra Umadbai Patel 1995]

KALR 29 . parties to suit under O.1 r 3 whether a person against
whom the plaintiff has no claim and does not desire to prosecute can
be joined as a co-defendant .

 Buikwe Estate Coffee Ltd Vs Lutabi: At the hearing, counsel for the
defendant made two preliminary objections on point of law that there
was a misjoinder of parties and causes of action contrary to O.1 r 1,
O.2 r 2 and 3 (authority of advocate) and that the plaintiffs were not
entitled to join them. Held: That the right to relief existing in all 3
plaintiffs if proved by evidence arose out of the same transaction,
 namely, invalid resolution of the company which purported to oust the
lawful directors and accordingly there had been no misjoinder of
parties and no misjoinder of causes of action.

 O 1 r 7 CPR provides for a situation where a person is in doubt as to

whom he may obtain relief or redress, he may join two or more
defendants so that court can determine who of them is liable.

 In all cases of joinder, the situation must always be that if separate

suits were brought by or against each of the persons joined any
common question of fact would arise.

 Barclays Bank Vs Patel [1959] EA 214: Plaintiff sued the defendant

as guarantor of an over draft to the company. Judgment was obtained
against all the defendant except the 3rd and 4th defendants. The 1st and
5th defendants were parties to the suit and the 1 st, 2nd, 4th, 6th and 3rd
defendants objected as the suit was not maintainable as the plaintiff
had improperly joined different defendants in one action. Held: That
different causes of action accrued on different dates against different
defendant. The circumstances of liability were separate and distinct.
The two causes of action could not be disposed of together. That there
was a common question of law as the guarantees being identical in
form but there was no common question of fact in the circumstances in
which the guarantees’ right to relief arose are different and binding
different defendants. All conditions must be fulfilled in order to apply
O.1 r 3.

 Karimani Vs Desai: A landlord claimed in one suit to eject two

tenants from different portions of the same property. Held; That no
right to relief arose against the tenants until they had separately
ignored the notices to quit. Those were separate and distinct acts.

 Bank of India Limited Vs Shah: The plaintiff Bank sued 5 defendants

jointly and severally as guarantors of monies lent on an overdraft to a
company’s claim. The 2nd, 3rd and 5th defendants submitted to judgment
but the 4th defendant raised an objection that there was a misjoinder of
parties and causes of action under O.1 r 3.Held: That O.1 r3 applied
because though the plaintiff had separate remedies against the
defendants, the causes of action arose from the same transaction
namely, the company’s overdraft raised some common question of law
and fact against each of them.

 O.T. Company Ltd Vs African Produce Agency Ltd and Another:

The 1st Defendant agreed to transport for the plaintiff 400 tones of
kerosene from Kisumu to Kampala but owing to accident between the
 1st defendant’s bay and the 2nd defendant’s bus, 367 tones were
damages. The plaintiff sued the 1 st defendant’s in negligence and
joined the 2nd defendant by 3rd party notice. Held: That the case of the
1st defendant collision was due solely to the negligence of the driver of
the 2nd defendant’s bus, there was thus a question to be decided
between the defendants which could not be resolved if the 2 nd
defendant was dismissed from the action.

 Semakula Vs Musoke: The plaintiff sued the defendant for trespass

and conversion of his property as well as that of his wife and children.
Counsel argued that he should have included property belonging to his
wife. Held: court found that the tort of trespass constitutes an
inference with possession with the personal property of the plaintiff
and his family at the plaintiff’s house and could only be said to have
been in his legal possession at the time. That for the plaintiff to sue the
defendants jointly there must be a common question of law or fact that
could arise if separate suits were brought.

 Order 1 r 9 civil procedure rules provides for Misjoinder and

nonjoinder. No suit shall be defeated by reason of the mis joinder or
non-joinder of parties, and the court may in every suit deal with the
matter in controversy so far as regards the rights and interests of the
parties actually before it.

 Remedy for Misjoinder:

 The CPR, O.1 r 10 provides for amendment. Sub rule (1); if the suit is in
the name of a wrong person as plaintiff or when it is doubtful as
whether it is in the right names of the plaintiff the court may at any
stage of the suit if satisfied that the suit has been instituted by a
bonafide mistake and it is necessary for determination of the matter in
question to do so, order any person to be substituted or added. See
Buteraba V Serwanga

 Barclays Bank Vs Patel: Held: That the plaintiff would be given leave
to withdraw the suit and institute a fresh one or suits as he chose
against the defendants on payment of the defendant’s costs. The plaint
were not to be struck out as being embarrassing. See Buteraba V
Serwanga

 In the case of AG & Peter Nyombi vs. Uganda Law Society HCMA
No. 321/2013 Justice Stephen Musota citing O1 r 2 CPR ordered that
Kampala Associated Advocates be disqualified from representing the
Attorney General instead of ordering separate trials. That the
instructions to Kampala Associated Advocates will only remain valid for
the 2nd Applicant Mr. Nyombi in his personal capacity. That the A.G
 shall continue to be represented by his legal team of Attorney as
presented on record.

 Order 1 r 10 civil procedure rules provides Suit in name of

wrong plaintiff; addition and removal of parties. Where a suit has
been instituted in the name of the wrong person as plaintiff, or where it
is doubtful whether it has been instituted in the name of the right
plaintiff, the court may at any stage of the suit, if satisfied that the suit
has been instituted through a bona fide mistake, and that it is
necessary for the determination of the real matter in dispute to do so,
order any other person to be substituted or added as plaintiff upon
such terms as the court thinks fit.
 In the case of Lea Associates Limited v Bunga Hill House Ltd
(High Court Misc. Appl. No. 348 of 2008) ((High Court Misc.
Appl. No. 348 of 2008)) Court held that order 1 rule 10(2) court has
discretion to order any person to be joined as a plaintiff or defendant or
as a person whose presence before court may be necessary in order to
enable the court effectively and completely to adjudicate upon and
settle all quests involved in the matter before it . Such a person may be
joined even if the plaintiff has no cause of action against him or her
provided that such party’s presence is necessary for effectual and
complete adjudication and settlement of all the issues involved in the
suit before court. See Mullani in the Code Civil Procedures 17 th Ed Vol II
page 102, DAPCD Vs Jaffer Brother Ltd SCCA No 9 of 1998, Anorld
Raphael Vs Tuch& Sons Ltd (1956) All ER 273. the Application to add
such a party could be by any of the parties or done by the Court or its
own motion. See Kilolo Curing Co Ltd Vs West Mengo Co – op Union Ltd
(1991) HCB 60. The application could even be made by any person
whose legal right will be directly affected by the grant of the relief
claimed in the action and can show that his presence is necessary to
enable court effectively and completely adjudicate all settle the suit
before it. See GoholdasLaxirioudasTana Vs Sorter Rose Munyiza HCCS
No 1076 of 1987 (1990 – 99) KALR 21, Inspector General of
Government Vs KihondaButema Form Ltd & A C.A Constitutional App.
No. 13 of 2006 IGG Vs Blessed Constitution Ltd &Anor HCt-00-CC-MA-
073 – 2007 . The aim is to being an record all persons who are parties
relating to the subject matter before Court so that the dispute may be
determined in their presence and tat the same time without any
prostration, inconvenience and to avoid multiplicity of proceedings.
See Ally Route Ltd Vs Uganda Development Bank Ltd HCt-00-CC-MA-
459-2007

 In KakoozaMutale v, Attorney General & Another [2001-2005]

HCB 110, the high court considered the extent and intent of the
provisions of order 1 rule 10 CPR. Bamwine, J (as he then was) laid
down the criteria to be employed by a court exercising its powers
under the rule. He ruled that first and foremost, Order 1 rule 10(2) CPR
gives wide discretion to the court to strike out or add parties to suits,
and that the principle under which such application can be allowed are
 that a plaintiffs at liberty to sue anybody that he thinks he has a claim
against and cannot be forced to sue anybody; and where he sued a
wrong party he has to shoulder the blame. Further that jurisdiction
under Order 1 rule 10(2) to order the addition of parties as defendant
where the matter is not liable to be defeated by non-joinder; when they
were not persons who ought to have been sued in the first place; and
where the presence as a party is not necessary to enable the court
effectively to adjudicate on all questions involved. He concluded that
generally, a defendant will not be added against the plaintiff’s wish.

 In GokoldasLaximidasTanna Vs Sorter Rose Munyinza H.C.C. S. No.

7076 of 1987 (1990 – 91) KALR 21 Justice Ouma stated:- “The law is
that a person whose legal right or who claims that his legal right will be
directly affected by the granting of the relief claimed in the action and
can therefore, show that his presence is necessary to enable the court
effectually and completely to adjudicate as above stated, may be
added to the suit as a party upon his own application (see the case of
DollfusMieg Vs Bank of England (1951) Ch 33 and Amon Vs Raphael
Truck and Sons Ltd (1956) 1 QB 357)”

 Joinder of Causes Action:

 Order 2 rule 4(1) CPR provides that except as otherwise provided, a
plaintiff may unite in the same suit several causes of action against the
same defendant or the same defendants jointly; and any plaintiffs
having causes of action in which they are jointly interested against the
same defendant or the same defendants jointly may unite those causes
of action in the same suit.

 The rules provide for joinder of cause of action with the right of the
court to order separate trials if necessary-O.2 r 5.
 A plaintiff may join in an action more than one cause of action and
when the defendant contests the joinder of any cause of action, the
plaintiff must justify the joinder or else the objection to this joinder will
be upheld by court-O.2 r 6.

 Where causes of actions are united, the jurisdiction of the court as

regards the suit shall depend on the amount or value of the aggregate
subject matter at the date of instituting the suit-O.2 r 4(2).

 Uganda Commercial Trading Co. ltd Vs Jinja Cash Stores:

Counsel raised a preliminary objection that the suit was not
maintainable as the plaintiff had improperly joined separate defendants
and causes of action in one suit. Held: That under the Bulk Sales
Ordinance the plaintiff in his capacity as a creditor of the 1 st defendant
was entitled to have any redress against the 2 nd defendant as
transferee of the lorries and a common question of law and fact would
 have arisen if separate suits were brought. There was no misjoinder of
the defendants or causes of action and the suit was maintainable.

 Yokana Kakire Vs Lunyo Estates Ltd: The eight (8) plaintiffs each of
whom claimed to be a tenant of the defendant company sued for
alleged interference with their rights of possession. The defendant
contended that there was misjoinder of parties and causes of action
contrary to O.1 r 1, CPR. Held: that the causes of action set out in the
plaint did not arise out of the same act or transaction. They were of
wholly distinct and different acts of dispossession and interference of
rights of possession. There was no question of law or fact common to
the several plaintiffs and there was a misjoinder of plaintiffs and causes
of action.

 Stroud Vs Lawson: Held: That it is necessary that both conditions

should be fulfilled and that the right to relief alleged to exist in each
plaintiff should be in respect of or arise out the same transaction and
also that there should be a common question of law or fact in order
that the case may be within the rule.

 Musitwa Kyazze Vs Eunice Busingye: Held: That no suit should be

dismissed for non joinder or misjoinder of parties or causes of action.

 CONSLIDATION OF ACTIONS / SUITS AND TEST SUITS

 O.11 r 1 provides that where two or more suits are pending in the same
court in which the same or similar questions of law or fact are involved,
the court may, either upon the application of one of the parties or of its
own motion, at its discretion, and upon such terms as may seem fit-
a) order a consolidation of those suits

b) direct that further proceedings in any of the suits be stayed until

further order.

 The rules of court provide that the court may consolidate two or more
actions which are pending in the sense that the court process has been
served and judgment has not been entered and satisfied and where;
a) a common question of law, or fact arises in action
b) the right to relief arise in respect of the same transaction or series
of transaction
c) it is otherwise desirable to approve consolidation.

 The rules also provide that the court in the consolidation order provide
that the proceedings be tried at the same time, or immediately after
one another, or have one stayed until the determination of the other,
or be tried on such other terms as it thinks just.
 The courts may usually make these types of orders on application for
consolidation:
1) The actions be consolidated, where upon the actions are
consolidated into one action and continue as such, with possibly a
common counsel, one set of pleading and a single discovery,
judgment and bill of costs. However the order does not require the
different causes of action arising out of the same transaction be
included in one suit.
2) The actions are not consolidated but are heard together with the
trial of one immediately following the other, with separate
pleadings, discoveries and judgments. In the case of
TopistaKyebitama vs. DamyanoBatuma [1976] HCB 276
established that where two or more suits are filed involving the
same parties and arising from the same cause of action, they should
either be consolidated for purposes of determining liability or only
one of them, first in point of time be heard first.
Usually any party in the following action, who is not a party in the
earlier action, will be permitted to attend and take part in the earlier
trial and cross examine the witnesses and the evidence in the
earlier action may be used in the other separate decisions will be
delivered or

3) One action will be heard with the remaining actions stayed and the
decision of the first case governing the others or with any latter
case being subsequently heard.

 Under the rules of court, the consolidation of actions is now within the
discretion of the court or judge. The discretion of court is unlimited and
consolidation may be ordered against the wishes of the plaintiff. In the
case of Stumberg & Anor vs. Potgieter [1970] EA 323 held that
consolidation of suits should be ordered where there are common
questions of law or fact; consolidation of suits should not be ordered
where there are deep differences between the claims and defenses in
each action.

 It is intended to prevent multiplicity of pleadings. The recent rules of

court generally provide the same grounds for permitting consolidation
are applied to the joinder of parties namely;
1) Common question of fact or law
2) Right to relief arising out of the same or similar transactions; of
3) Whether consolidation is proper
4) In cross actions between the same parties arising out of the same
matter
5) Same cause of action
6) Consolidation will save expenses

 The court however will refuse to consolidate suits when its prejudicial
to the plaintiff, impossible to save expenses, a person is plaintiff in one
 suit and defendant in another and consolidation will result into the
plaintiff becoming a defendant, different laws applicable, different
standard of proof like fraud cases, when new pleadings required,
parties represented by different advocates, relevant matters arising
subsequent to commencement, where actions are already set down for
hearing, when different issues involved

 Test suits / Actions

 Where two or more persons have sued or been sued separately as
under O.1 and could be joined in one suit, upon application of any of
the parties, the court may if satisfied that the issues to be tried in each
suit are precisely similar, make an order directing that the suits be
tried as a test case, and staying all steps in other suits until the
selected suit shall have been determined or shall have failed to be a
real of the issues. O.39 r 1 and 2 CPR.

 By the agreement of the parties, one action will be heard with the
remaining actions being stayed pending the decision in the test action.
To have a test suit / action, all the issues and evidence in the actions
should be substantially the same.

Pre-Entry Exam 2011/2012

Qn. 37 What is joinder of parties?

Pre-Entry Exam 2012/2013

Qn. 45. Define misjoinder of causes of action

Pre-Entry Exam 2014/2015

Qn. 49. Mention any advantage of joining parties and causes of action
in one suit

TOPIC XI

PLEADINGS:

Pleadings are important matters for parties in early stages of proceedings

called the pre-trial stage. So one should learn the rules of procedure
governing exchange and relief to avoid embarrassment caused by
irregular and defective pleadings. Time is of essence in serving, amending
and filing any pleading.

The relevant law is contained in O.6, 7, 8, 9 CPR. The Plaintiff begins by

presenting a plaint being the first pleading which is filed in court and
served together with summons requiring the defendant to file his defence
if he so wishes within 15 days from the date of service on him or such
time as may be prescribed by court. Having been served the defendant
who wishes to appear in the suit present his first pleading called a Written
Statement of Defence which sets out his defence to the allegations set out
in the plaint. Then a defendant who wishes to claim something from the
plaintiff would add his pleadings a counter claim which has to be filed as a
defense within time allowed for filing a defense. If the plaintiff wishes to
reply to a defence then he files in court a reply to written statement of
defence then the pleadings of the parties would be said to be completed
and the pre-trial stage would come to an end.

 Definition of a pleading
 Section 2 of the Civil Procedure Act defines “pleading” to include any
petition or summons, and also includes the statements in writing of the
claim or demand of any plaintiff, and of the defence of any defendant
to them, and the reply of the plaintiff to any defence or counterclaim of
a defendant. See Reliable Trustees Ltd V George Sembeguya
HCCS No. 601/92 for the definition of pleadings;

 Documents with definition of pleadings include the plaint, Written

Statement of Defense, Counter claim, Reply to defense and counter
claim, petition, originating summons, notice of motion, chamber
summons and answer to petition.

 Plaintiff’s Pleadings:
 The Plaintiff is required to serve summons together with plaint and
annextures thereto upon the defendant requiring the defendant to file
a Written Statement of Defence within 15 days from the service. (O.5 r
1and this constitutes the Defendant’s pleadings. See Mark Graves V
Balton (U) HCMA No.158 of 2008 for time within which a defence
should be filed; See also Rule 11 of the Government Proceedings
(Civil Procedure) Rules .; AG is given 30 days within which to
file a defence.

 Plaintiff is required to serve the summons and plaint within 21 days

from the date of issue unless the time is extended on application of
such plaintiff; Read; O.5 r1(3) Century Enterprises Limited V
Green land Bank ( In Liquidation) HCT-00-CC-CS-0877-2004
Elite International Tobacco (U) Ltd V Marchfair Stationary (U)
Ltd [1997-2000] UCLR 253.
 General Objects of Pleadings:
 Knowledge of the parties as to the exact matter in dispute.
 Knowledge of what exactly is to be proved at the trial so as to reduce
cost and time of proving unnecessary facts and surprises at the trial.
 Determination of the appropriate mode of trial on questions of fact or
law to be decided by court.
 Ensuring that parties and succession do not contest similar issues.
 The Function, Rationale and relevancy of pleadings for parties
and Court
 The Plaintiff is entitled to know the defence to the claim so as to reply
to the disputed statements by the defendant, establish facts conceded
and facts disputed to avoid procuring evidence of unnecessary facts.
 In the case of Peter Bakaluba Mukasa Versus Betty Nambooze
SCCA No.4/2009 Justice Katureebe JSC cited the statement of Order,
JSC, (RIP) in the case of Interfreight Forwarders Case at page 125:-
‘‘The system of pleading is necessary in litigation. It operates to define
and deliver it with clarity and precision the real matters in controversy
between the parties upon which they can prepare and present their
respective cases and upon which, the court will be called upon to
adjudicate between them. It thus serves the double purposes of
informing each party what is the case of the opposite party which will
govern the interlocutory proceedings before the trial and which court
will determine at the trial……Thus, issues are formed on the case of
the parties so disclosed in the pleadings and evidence is directed at
the trial to the proof of the case so set as alleged by him and as
covered in the issues framed. He will not be allowed to succeed on a
case not set up by him and be allowed at the trial to change his case or
set up a case inconsistent with which he alleged in the pleadings
except by way of amendment of the pleadings…that issues are framed
on the basis of the case made out from the pleadings of parties’’.

 The purpose of pleadings was to allow the parties an opportunity to

prepare their case adequately Mbarara Coffee Curing Vs Grind
lays Bank Ug. Ltd

 That the purpose of pleadings is to let the other party know the
outcome of the adversary’s case to prepare a defence. Each of the
alternate pleadings must show this. Painetto Mubiru Vs UCB
(1971) HCB 144:

 The function of pleadings is to give a fair notice of the case, which has
to be met so that the opposing party may direct his evidence to the
issue disclosed by them. Esso petroleum Co. Ltd vs. South Port
Corp (1956) AC 218

 It is trite that the object of pleadings is to bring the parties to a clean

issue and delimit the same so that both parties know beforehand the
real issue for determination at the trial In Kahwa & Anor vs. UTC
[1978] HCB 318; See Motorcar (U) LTD V AG HCT-00-CC-CS No.
0638/05

 Ascertainment with precision matters in contest and matters admitted

to arrive at clean issues for determination by court. H.J Stanley &
sons Ltd vs Akberali Salah [1963] EA 574-
 Rules of pleadings have been evolved in general interest so that all
parties may know the allegations they have to meet and that issues
may be framed and justice done without due delay see Kebirungi
Justine vs. M/s Road Trainers Ltd HCMA No. 285/2003[ Note
decision of the High Court rejecting a plaint for want of
disclosure of a cause of action was over ruled by the Court of
Appeal but principle is still good law]

 Cardinal rule and Justifications for Exchange pleadings:

 Exchange of Pleadings: Pleadings must be exchanged in accordance

with the CPR,( O.5 and O.8 r.18 CPR] the purpose being comparison of
parties to clearly show immaterial facts and insisting that the opponent
expressly admits or denies material facts alleged against him. The law
requires each party to state his own case and answers before the
hearing and this is what constitutes pleadings.

 The cardinal rule in pleadings is that the allegations must be material

and thus only a summarized statement of material facts on which the
party pleading relies for his claim or defence as the case may be, but
not evidence by which those parts are to be proved.
 Kasule Vs Makere University {1975] HCB 376 : The plaintiff was
assaulted by the MUK askaris and in a suit against the university he
was awarded exemplary damages yet he had not prayed for it in the
pleadings. Held: Per curium: The system of pleadings is designed not
only to define with clarity and precision the issues on questions which
were in dispute between the parties but also to fulfil some of the
fundamental principles of natural justice. The aim that each party
should have a fair and due notice of what case he has to make, that
each party should have a reasonable opportunity of answering the
claim or defence of his opponent and that each party should have a
reasonable opportunity of preparing and presenting his case on the
basis of issues disclosed in the pleadings and no others. Exemplary
damages, not pleaded were wrongly awarded.

 The essence of pleadings is to give a fair notice of the case which has
to be met so that the opposing party may direct his evidence to the
issues disclosed by them Nile Breweries Ltd vs Bruno Ozinga T/A
Nebbi Boss stores HCT 00-CC-CS – 580 / 2006

 That the purpose of pleadings was to allow the parties an opportunity

to prepare their case adequately. Mbarara Coffee Curing Vs Grind
lays Bank Ug. Ltd [1975] HCB 57Held: Painetto Mubiru Vs UCB
(1971) HCB 144: Held: That the purpose of pleadings is to let the
other party know the outcome of the adversary’s case to prepare a
defence. Each of the alternate pleadings must show this. See Order 6
r(2)
  It is trite that the object of pleadings is to bring the parties to clear
issues and delimit the same so that both parties know before hand the
real issues for determination at the trial See Motorcar (U) LTD V AG
HCT-00-CC-CS No. 0638/05 ; See also; Kahwa & Anor vs. UTC
[1978] HCB 318

 Exchange of Pleadings and Closure of Pleadings

 The plaintiff begins by presenting his claim and the defendant may put
in his written statement of defence, which besides answering the
allegations of the plaint may set up a counter-claim or set off. See O.4
r.1 and O.9 r.1 CPR

 The Plaintiff may reply within 15 days from the date of service of the
written statement of defence and thereafter, usually no further
pleadings are made save with leave of court but there may be some
more joiners, some rebuttals e.t.c. See O.8 r.18 (1) and (2)CPR on
closure of pleadings; See also notes on amendment of
pleadings;

 Nature of pleadings:
 Each of the pleadings must in turn either admit or deny the facts
alleged in the last preceding pleadings though it may allege additional
facts and admitted issues are extracted.

 General Requisites for Pleadings:

 Drafting of pleadings
 Pleadings should be drafted properly to contain all the material particulars
relating to the claim but not evidence or submissions otherwise
incompetently drafted pleadings may be struck out; Re Christine
Namatovu Tebajjukira (1992-93) HCB 85 it is now trite that the
pleadings must only substantially comply in form with the rules and
relevant practice directions;
 Mohammad B. Kasasa vs. Jaspha Buyonga Sirasi Bwogi CACA No.
42/2009 C. Kitumba; JA; negligently drafting a plaint or incompetence
in doing so is not an excuse for a client to escape being bound by his
counsel’s action.

 See also Tororo Cement Co. Ltd V Frokina International Ltd SCCA
No.2 of 2001 Tsekooko JSC; that Article 126 (2) (e) was not intended to
encourage sloppy drafting of pleadings.

 See also Take me Home Vs Apollo Construction on the

consequences of inadequate, sloppy and incompetent drafting of
pleadings.

 Language of Pleadings
 Generally pleadings must be written in the English language because it is
the official language; Article 6 of the Constitution. Agago Lanoro Vs
Gollam Hussein. The Plaintiff filed a suit by his advocate. The
unrepresented defendant filed a defence in a suit with a document, which
was not translated, and counsel was ignorant of the language. Held: It
was held that English was the official language of the court as per the
Constitution and the magistrate ought to have ordered for the translation
of the document before accepting it in court. Read also Kasaala
Growers Co-operative Society V Kakooza Jonathan & Anor. SC
Civil Application No. 19/2010 on the language of court and documents
executed by illiterates.

 Signing of Pleadings

 Pleadings must be signed either by counsel for the party or the party if
such a party draws the pleadings; 0.6.r 26 CPR; Read also Kasaala
Growers Co-operative Society V Kakooza Jonathan & Anor. SC
Civil Application No. 19/2010 on the language of court and pleadings
executed by illiterates.
 In the case of Uganda Law Society and Another v Attorney General
Constitutional Petition No. 8 of 2000, the respondent, raised a
preliminary objection on ground that the first petitioner did not sign its
petition as required by rule 3 (5) (b) of Legal No. 4 of 1996, that being a
corporate body, cannot personally sign its petition. It has to be signed by
somebody, i.e., its President or Secretary for and on its behalf. yet, in the
instant case, the petition was signed by an individual as the first petitioner
not for and on behalf of the corporate body. Court held that Order 6 r 25
of the CPR however, requires that "every pleading shall be signed by an
advocate or by the party if he sues or defends in person." That the first
petitioner's petition was signed by an individual as the petitioner. That
failure to state who signed the first petitioner's petition and the capacity
in which he/she signed it is a matter of technicality which is not fatal in
view of article 126 (2) (e) of the Constitution. This article enjoins courts to
administer substantive justice without undue regards to technicality.

 Mugabi vs. AG [1991] HCB 66; Pleadings drawn by counsel but signed
by the plaintiff; Held; The plaintiff signed as counsel for the plaintiff
designedly to flout the advocates act which was unethical on his part,
which this court can’t condone.

 Habre International trading Co. (U) Ltd vs. KCC HCT 00-CV- CS
0763 /1994 documents prepared or filed by an advocate who did not
have a valid practicing certificate at the material time are invalid and of
no legal effect on the principle that courts will not condone or perpetuate
illegalities.
 Prof Syed Hug v I.U.I.U SCCA No. 47/1995. Held, On the law and the
authorities the position appears to be:

(1) that an advocate is not entitled to practice without a valid

practicing certificate;

(2) that an advocate whose practicing certificate has expired may

practice as an advocate in the months of January and February but that if
he does so he will not recover costs through the courts for any work done
during that period. The documents signed or filed by such an advocate in
such a period are valid;
(3) that an advocate who practices without a valid practising certificate
after February in any year commits an offence and is liable to both
criminal and disciplinary proceedings (see sections 14 & 18 of the
Advocates Act). The documents prepared or filed by such an advocate
whose practice is illegal, are invalid and of no legal effect on the principle
that courts will not condone or perpetuate illegalities.

 Counsel signing the pleadings must have a right of audience before the
court where the suit is filed. Shokatalali Hussein Halji Vs Magnatal
Punshotan: The applicant’s case that Mr. Makumbya Musoke purported
to represent the plaintiff in his capacity as an advocate before the High
Court. Mr. Mukumbya had signed the plaint on behalf of the plaintiff
before he satisfied the statutory period of 9 months after enrolment
before he could stand before the high court. Held: That Mr. Makumbya
Musoke had no right of audience before the High Court when he lodged
the plaint in the High Court. According to the rules, 12 of the Advocates
[Enrolment and Certification] Rules he had no right of audience before
High Court until after the expiration of the period of nine months after
enrolment. The plaint was incompetent and struck out.

 Greenland Bank Ltd V H.K Enterprises Ltd & Others [1997-2000]

UCLR 283; All documents and instruments drawn and filed by the
advocates with respect to the suit, at a time when they had no practicing
certificates were invalid and of no legal effect.

 The registered Trustees of the Khoja vs. UMSC CACA No. 27/2002;
The name of the person signing the pleadings or who drew the pleadings
must be indicated. The omission of putting the name of the firm that drew
the document at the back does not amount to an irregularity which is
incurable by amendment

 An unsigned pleading has no validity in law as it is the signature of the

appropriate person on the pleading which authenticates the same and an
unauthenticated document is not a pleading of anybody. It is a nullity. See
 Regina Kavenya Mutuka and Ors vs United Insurance Company
Ltd [2002] KLR 250.

 Whenever a Defence is filed it must be signed by the party or his / her

advocate and Countersigned by the Registrar /Magistrate. There must be
provision for the court’s endorsement. i.e Registrar of Magistrate. See
Kaur v City Auto Mart [1967] EA 107.

 However Section 14A (1) of The Advocates (Amendment) Act

2002 is to the effect that no pleading or other document made or
action taken by the Advocate on behalf of any client shall be
invalidated by any such event and that in the case of any
proceedings, the case of the client shall not be dismissed by
reason of any such event.

 In the case of Maji Real Estates (U) Limited &Anor v Aulogo

Cooperatives Savings and Credit Society Limited, Adjumani
(Miscellaneous Civil Application No. 0028 of 2017 Justice Mubiru
stated as far as the question of signing pleadings is concerned, when
dealing with advocates who are otherwise professionally qualified, who
have been admitted to the practice of law and have not been struck off
the Roll of Advocates or suspended by the Disciplinary Committee of The
Law Council but have only delayed to take out the annual practicing
certificates, the decisions of court are not uniform as to whether the
defects are of substance or of procedure. For example in Standard
Chartered Bank v. Mechanical Engineering Plant Ltd & Others [2009] EA
404, it was held that a practicing certificate cannot have retrospective
effect and therefore the memorandum of appeal filed by an advocate
without a practicing certificate at the time of signing it was incompetent
as the advocate was unqualified. Similarly in Delphis Bank Ltd v. Behal
and others [2003] 2 EA 412, it was held that it is public policy that courts
should not aid in the perpetuation of illegalities. “Invalidating documents
drawn by such advocates we come to the conclusion that will discourage
excuses being given for justifying the illegality. A failure to invalidate the
act by an unqualified advocate is likely to provide an incentive to repeat
the illegal Act.” A similar holding is to be found in where Court held that
the documents prepared or filed by an Advocate whose practice is illegal,
are invalid and of no legal effect on the principle that Courts will not
condone or perpetuate illegalities (see also Kabogere Coffee Factory v.
Haji TwalibuKigongo, S. C. Civil Appeal No. 10 of 1993 and The Returning
Officer, Iganga District and another v. Haji MuluyaMustaphar, C. A. Civil
Appeal No 13 of 1997). That on the other hand, in cases like that
of Attorney General and Hon. Nyombi Peter v. Uganda Law Society, Misc.
Cause No. 321 of 2013, it was held that though the advocate may be
unqualified to practice, the legality of the pleadings signed and filed by
such an advocate while so disqualified is not affected because of the
provisions of section 14A of The Advocates (Amendment) Act, 2002.
 Before this, it had been decided in Prof Syed Huq v. the Islamic University
of Uganda, Civil Appeal No. 47 of 1995, that deeming such pleadings or
documents to be illegal would amount to a denial of justice to an innocent
litigant who innocently engaged the services of such an advocate.
According to Tsekooko JSC, “the intention of the legislature appears to be
aimed at punishing the errant advocate by denying him remuneration or
having him prosecuted. I find nothing in the Provisions I have referred to
which penalize an innocent litigant. That is why the Court would deny
audience to an Advocate without a practicing certificate but should allow a
litigant the opportunity to conduct his case or engage another Advocate.’’
That section 14A (1) of The Advocates (Amendment) Act 2002 is to the
effect that no pleading or other document made or action taken by the
Advocate on behalf of any client shall be invalidated by any such event
and that in the case of any proceedings, the case of the client shall not be
dismissed by reason of any such event. That non-compliance with any
procedural requirement relating to a pleading or application for relief
should not entail automatic nullification or rejection, unless the relevant
statute or rule so mandates. Procedural defects and irregularities which
are curable should not be allowed to defeat substantive rights or to cause
injustice. Rules of procedure, as handmaidens to justice, should never be
made a tool to deny justice or perpetuate injustice, by any oppressive or
punitive use. That the law saving documents filed by un-licensed
advocates does not necessarily extend to those filed by persons who are
not qualified at all to practice law.

 Pleadings and Material Facts

 The Cardinal rule in pleadings is that the allegation must be material and
certain like offer, acceptance, breach etc. On materiality O6 r 1 CPR
provides that pleadings must contain a brief statement of material facts
on which the party relies for a claim or defence as the case may be. The
element are that;
i) every pleading must state material facts only;
ii) Every pleading must state all material facts
iii) Every pleading must state the material facts, but not the
evidence to prove those facts
iv) Every pleading must state the material facts and not law; and
v) Every pleading must state the material facts in a summary form.

 Material means those facts necessary for the purpose of formulating a

cause of action and if any material fact is missing the proceedings will be
bad. Materiality depends on the circumstances of a material case.

 All the primary facts which must be proved at the trial by a party to
establish the existence of a cause of action or his defense are material
facts.
 Every pleading must contain only a statement of concise form of the
material facts in a given format.O.6 r 1 CPR. They must allege with
 continuity proof of allegation. Pleadings should not be by way of
avoidance through partial acceptance. The function of particulars is to
carry into operation the overriding principle that the litigation between the
parties and the trial should be conducted fairly and openly without
surprise. Read Bisuti V Busoga District Admin [1971] 1 ULR 179

 Pleading to contain a Prima Facie Case: A pleading must contain a prima

facie case not based on anticipation of defences. Yafeesi Katimbo Vs
Grind lays Bank [supra] Held: That it was well settled that so long as
the statement of claim on the particulars disclosed some cause of action
or raised some question of fact to be decided y a judge or jury the mere
fact that the case was meant and not likely to succeed was no ground for
striking it out. The action was based on the fact that civil ingredients were
not pleaded thus there was no prima facie case.

 A pleading must state facts which in the party’s opinion give him a right or
imposes on a defendant a duty and it remains to the judge to consider
whether on the facts proved, such rights and duties exist.

 Material facts are facts necessary for the founding of an action.

Sempebwa Vs Attorney General: Held: That materiality depends on
the circumstances of each case. They are facts, which must be proved for
the plaintiff to succeed in his action.

 Certainty of Material facts:

 The object of pleadings is to ascertain definitely the question between
parties and this object can only be made achieved when each of the
parties states his case with precision.
 The facts pleaded must be pleaded with precision and certainity and must
not be left to be inferred from vague or ambigious expression or from
statements of circumstances consistent with a different conclusion.
 Tran slink (U) Ltd vs. Sojitra Cargo services Ltd & ors HCT -00-CC-
CS No. 0561 /2006. Held; the system of pleadings is necessary in
litigation. It operates to define and deliver with clarity and precision the
real matters in controversy between the parties upon which they can
prepare and present the respective cases and upon which the court will be
called upon to adjudicate between them. Inter freight forwarders (U)
LTD vs. EADB [1994-94] HCB 54.

 NB: If one cannot be exact, be broad, as the greater includes the lesser
thus each party is allowed to prove as much of the allegations as to make
out a case. Phillips Vs Phillips and Others (1878) 4 QB 127: Cotton
 L.J. That it is necessary for the plaintiff to say that he claims as heir of so
and so being a descendant of one his ancestors in the ascending line.
What particulars must be stated depends on the facts of each case but it
is absolutely essential that the pleading not to be embarrassing to the
defendant in the sense that it doesn’t indicate the case which they have
to meet when the case comes up for trial.

 If material details are omitted, particulars of the facts relied on may be

requested or ordered-O.6 r 4 CPR.

 Relevancy and nature of particulars;

 Material particulars in an action founded on contract. Yafeesi Katimbo

Vs Grind lays Bank International (1973) HCB the Plaintiff sued the
Defendant for specific performance and in its WSD; the defendant raised a
preliminary objection that the plaint disclosed no cause of action since no
consideration had been pleaded. Whether Consideration, Offer and
Acceptance in plaint had to be averred: Held: That what particulars had to
be stated in the plaint depended on the facts of the case. Cause of action
has been compendiously defined to mean every fact, which would be
necessary for the plaintiff to prove his case in order to support his right to
the judgment of court and it did not comprise every piece of evidence
which was necessary to prove each fact but every fact which was
necessary to be proved. That since the action was based on contract;
consideration was a material fact and had to be pleaded except in
negotiable instruments when it is proved. There was thus nothing in the
pleadings to show that there was a binding contract. None of the
annextures showed that the offer had been accepted. Acceptance was of
the essence and had to be pleaded. The plaint did not disclose a cause of
action and would be struck out under O7 r 11 CPR.

 Items to accompany pleading.

 Every pleading to be accompanied by summary of evidence, list of
witnesses, list of documents and list of authorities-O.6 r 2 CPR. This rule
has been interpreted as forming part of the pleadings. See Rtd Col Kizza
Besigye vs Yoweri Kaguta Museveni and Electoral Commission,
Supreme Court Presidential Election No. 1 of 2006 (Justice
Tsekooko).
 A plaint must be accompanied by a summary of evidence, list of
documents and witness as per O. 6 r2; see implications of non
compliance

 The issue is whether this requirement is mandatory. See Sule Pharmacy

Limited V The Registered Trustees of the Khoja Shia Itana Shari Jamat
HCMA No. 147 of 1999.
 In the case of Eastern & Southern African Trade & Anor vs.
Hassan Basajjabalaba & Anor HCT 00-CC- CS 512/2006 –Justice
Yorokamu Bamwine held that one of the intention of amending O.6 CPR
was to avoid surprises or ambushes in matters of this nature, that, the
case of Sule Pharmacy Limited V The Registered Trustees of the Khoja
Shia Itana Shari Jamat HCMA No. 147 of 1999 covered this kind of
situation. Applying the ratio decidendi in that case to the facts herein, and
given the constitution of Uganda mandates to administer justice without
undue regard to technicalities, he was inclined to overlook the omission in
the greater interest of justice and in accordance with Article 126 (2)(e) of
the Constitution.

 Particulars to be specifically pleaded in some Cases:

 In all cases in which the party pleading relies on any misrepresentation,
fraud, breach of trust, wilful default or undue influence, and in all other
cases in which particulars may be necessary such particulars with dates
shall be stated in the pleadings-O.6 r 3 CPR.

 In the case of Tororo Cement Co. Ltd v Frokina SCCivil Appeal No. 2
of 2001 Court held that whereas the plaint disclosed a cause of action,
because of the alleged negligence, the defendant is entitled to know the
particulars of negligence complained of in order to enable it to prepare its
defence properly. In that regard ground one ought to fail but I would allow
ground two in part. It is the common practice in cases of negligence for a
party, or his advocate, who intends to rely on negligence to plead
particulars of negligence either within a paragraph of the pleadings or in
more than one paragraph. Reliance on the three tests in the Motokov
case must be taken with care.
 In the case of Fredrick J.K. Zaabwe vs. Orient Bank Ltd and 5
others Supreme Court Civil Appeal No. 4 of 2006. In the lead
judgment of Katureebe JSC had this to say at P14 of his
judgment.“In my view, an allegation of fraud needs to be fully
and carefully inquired into. Fraud is a serious matter, particularly
where it is alleged that a person lost his property as a result of
fraud committed upon him by others. In this case it was
necessary to ask the following questions; was any fraud
committed upon the appellant? Who committed the fraud, if at
all? Were the respondents singly or collectively involved in the
fraud, or did they become aware of the fraud? I find the definition
of fraud in BLACK’S LAW DICTIONARY 6THEdition page 660, very
illustrative.
 The functions of particulars are:
i) To inform the other side the nature of the case they have to meet
ii) To prevent the other side from being taken by surprise
iii) To enable the other side to know what evidence they ought to be
preparing and to prepare for trial
iv) To limit the generality of pleas or of the claim or the evidence
 v) To limit and define issues to be tried and to which discovery is
required
vi) To tie hands of the party so that he cannot, without leave go into
any matters not included in the pleadings. See Bisuti v Busoga
DA [1971] 1 ULR 179.

 Read Hermesdas Mulindwa & Anor V Stanbic Bank (U) Ltd HCT-00-
CC-CS-0426-2004 for the proposition that where a party relies on fraud,
the particulars thereof must be given; Read Acar V Acar Aliro [1982]
HCB 60

 Nile Breweries Ltd V Bruno Onzunga T/A Nebbi Boss Stores HCT-
00-CC-CS-0580-2006; for the proposition that order 6.r.3 is mandatory
in so far as it requires particulars to be pleaded;

 J.L Okello Okello vs. UNEB SCCA No. 12/81 [1993] 11 KALR 133 SC;
In every suit where a party relies on misrepresentation, fraud, breach of
trust etc and in cases in which particulars must be stated. The rule is
mandatory and noncompliance renders the suit liable to be struck out
Buckley L.J. and Grant Vs Hobbs: It is for reasons of practice and
justice and convenience to require the party to tell his opponent what he
is coming to court to prove otherwise he may not be allowed to rely on it.

 Particulars must be put under a definite heading. Okello Okello Vs

UNEB SCCA No.12 of 1987] It was held that O.6 r 3 is mandatory; dates
must be given and must always be under a definite heading titled
particulars of fraud. That it is not enough for a plaintiff in his statement of
claim to allege merely that the defendant acted negligently or
fraudulently and thereby caused him damage. Particulars must be given
in the plaint showing precisely in what respect the defendant was
negligent. But See Tororo Cement Ltd V Frokina International Ltd
SCCA No.2 of 2002[LLB Box]

 Mbarara Coffee Curing Vs Grindlays Bank (U) Ltd (1975) HCB 57

This constituted to transfer of money on the plaintiff’s account without
authority to the other firm or persons. The Defendant raised two defences,
one being a denial of negligence and then the fact that the action was
time barred by the Limitation Act. The plaintiff in the course of the trial
sought to rely on fraud as a ground before extension of time, which he
never pleaded. Held; That fraud was a ground for a party to rely upon to
extend the time of the limitation in the Limitation Act. Where a party
wished to rely on the fact that the defendant had by fraud concealed the
information-giving rise to the cause of action, the ground must be made
part of the pleadings and the particulars must be given;

 The plaintiff must first plead the particulars of negligence on which he

relies which will be binding on him, before he can shift the onus of
disproving negligence on to the defendant. Mukasa v Singh & ors
 1969 EA 442; Compare; Kebirungi Justine vs M/s Road Trainers
Ltd HCMA No. 285/2003

 It is necessary to specifically state the particulars of negligence. See

Tororo Cement Co. Ltd V Frokina International Ltd SCCA No.2 of
2001 for the proposition that it is common practice in cases of negligence
for a party or his advocate who intends to rely on negligence to plead
particulars of negligence in either within a paragraph or in more than one
paragraph.
 Patel Vs Fleet Transport Co. Held: An incorrect description of a
particular fact should not be fatal when the particulars of the claim have
been given with reasonable precision.

 Documents to be annexed to the Pleadings

 A party intending to rely on a document as the foundation of the cause of

action is required to annex the document to the plaint, if in his possession,
or power and any other document should be included in the list of
documents; See Order 7 r. 14 and Order 6 r.2 of the CPR; UNICOF
Ltd vs Interfreight forward Ltd HCCS No 912/1996.Where a plaintiff
sues upon a document be produced in court when the plaint is presented
and a copy filed with the plaint.

 The object of O.7 r.14 is to provide against documents being set up after
institution of the suit. But where at the institution of the suit the existence
of a document is not doubt, the court should as a general rule admit the
document in evidence though it was not produced with the plaint or
entered in the list of documents annexed to the plaint Lukyamuzi v
House of Tenant Agencies;(1983) HCB 75 That the object of O.7 r 13
(Now 14) is to provide the against false documents being set up after
institution of the suit.

 Annexing a document to a pleading has the effect of incorporating the

contents of the document in the pleadings; Non- Performing Assets
Recovery Trust V Kapeeka Coffee Works Ltd SCCA No. 8 of 2001

 Parties are bound by their pleadings and must lead evidence consistent
with their pleadings; O.6 r. 7: No pleading shall not being a petition or
application except by way of amendment raise any new ground or claim
or contain any allegation of fact inconsistent with the previous pleadings
of the party pleading the same.

 Talikuta V Nakendo (1979) HCB 275 Held : It is a statutory rule of

pleadings that a party is bound by his pleadings. But if particulars are
 given in wider detail and what is proved varies from them in ways that
are material, it remains the duty of court to see that justice is done.
 Byabazaire Grace vs Mukwano Industries HCMA No. 909 /2002;
A plaintiff is bound by his /her pleadings and must establish the 1 st
essential element of a cause of action Viz , a defined right enjoyed by
the plaintiff . Where a plaint does not disclose a cause of action, it must
be rejected and the requirement is mandatory.
 Aisha Nantume vs Emmanuel Lukyamizi HC Appeal No. 011 /
2002; It is a well known principle that a party to a suit is bound by his
or her pleadings
 Interfrieght forwarders (U) Ltd VEADB SCCA No. 13/93; A party is
expected and is bound to prove the case as alleged by him and as
covered in the issues framed. He will not be allowed to succeed on a
case not set up by him and be allowed at the trial to change his case or
set up a case inconsistent with what is alleged in his pleadings except
by way of amendment of pleadings .
 H.J. Stanley and Sons Vs Alibhai : Held; Allegation that the hearing
must not be inconsistent with the pleadings.
 Talikuta Vs Nakendo: That it is a statutory rule of pleadings that a
party is bound by his pleadings.
 Opik Opoka Vs Muno Newspaper : At the hearing the defendant
raised by the objection not pleaded in the defence. Court found that
since new facts were raised by the objections, which were not pleaded,
and accordingly inconsistent in the pleadings put in general and the
objections were disallowed.
 Daily VS John:Held: That O.6 r 7 prohibits any party from raising in
any pleadings on ground of claim which is new or inconsistent with his
previous pleadings. That a remedy on the breach of O.6 r 7 is an
application to strike out the offending pleading either before or at the
hearing and that if a party commits to take that course and contents
the writs of the pleadings as they stand. It may subsequently be
contended that the court ought not to have determined an issue which
was open for decision of the pleading as they stood although it would
not have been so open had the pleadings been attacked at the proper
time.

 THE PLAINT;
 S. 19, CPA: All suits shall be commenced in the manner prescribed in
the Civil Procedure Rules, O.4 r 1. Every suit shall be instituted by
presenting a plaint. [Compare other modes of commencing a suit
under the rules; see discussion on commencement of a suit]

 Particulars in the Plaint:

 O.7 r1 provides for particulars in the plaint.

 The name and jurisdiction of the court. Mutongole Vs Nytil. (1971)
HCB 114; Counsel for the defendant contended that the plaint did not
show any averment as to jurisdiction of court. Held: That statement
like, ‘this court has jurisdiction over men’, surpluses that do not bestow
 jurisdiction upon land and it had no magical qualities as long as the
facts disclosed that a cause of action arose within the jurisdiction. That
each pleading should be carefully drafted and treated individually and
the advocates owned this much to the clients and court. That particular
case should be taken in drafting the pleadings; all the ‘is’ and must be
crossed as pleadings are the foundation of the court case. Once the
facts showing that the court had jurisdiction had been pleaded it was
not necessary to state that court had jurisdiction.

 CAT Bisuti vs. Busoga District Admin. (1971) ULR129: Under

0.7r.I (f), the plaintiff had the obligation of pleading facts showing that
the court had jurisdiction and a mere assertion that the court had
jurisdiction was not enough the facts showing that the court had
jurisdiction had been stated in the amended plaint.

 Name, description and place work or residence of defendant so found

as can be ascertained.( See discussion on jurisdiction)

 Name, description and place of plaintiff and address of service

 Where a plaintiff or defendant is a minor or a person of unsound mind,

a statement that effect. [See discussion on Capacity of parties]

 Plaint to Contain Facts Disclosing a Cause of Action:

 0.7r1 (e), it is mandatory that a plaint contains the facts constituting
the cause of action and when it arose. O.7 r 11 (a) provides that a
plaint shall be rejected where it does not disclose a cause of action. A
plaint without a cause of action is nothing as there is no basis or locus
for such a party to be in court in the first place.

 Cause of action has been defined as meaning simply a factual

situation, the existence of which entitles one person to obtain from the
court a remedy against another person. The phrase includes every fact
which is material to be proved to entitle a clamant to succeed and
every fact which the defendant would have a right to traverse.
Halbury’s laws of England 4th edition (re-issue) Vol 37 P.24 –.

 In Auto Garage vs. Motokov (1971) EA. 314 there are three
essentials to support or sustain a cause of action;
i) That the plaintiff enjoyed a right.
ii) That the right has been violated
iii) The defendant is liable for the said violation.
If any of these essentials is missing, the plaint is a nullity and ought to
be struck off. See Priamit Enterprises Limited vs. A.G SCCA No. 1/2001.

See Motorcar (U) LTD V AG HCT-00-CC-CS No. 0638/05;

 In the case of Tororo Cement Co. Ltd v Frokina SCCivil Appeal
No. 2 of 2001 Court held that Order 7, rule 7(a) of the Civil Procedure
Rules provides that the plaint shall be rejected - "(a) where it does not
disclose a cause of action." That a cause of action means every fact
which is material to be proved to enable the plaintiff to succeed or
every fact which, if denied, the plaintiff must prove in order to obtain
judgment. See - Cooke -vs- Gull LR.8E.P. page 116 and Read -vs-
Brown, 22 QBD p.31. That it is now well established in our jurisdiction
that a plaint has disclosed a cause of action even though it omits some
fact which the rules require it to contain and which must be pleaded
before the plaintiff can succeed in the suit. What is important in
considering whether a cause of action is revealed by the pleadings are
the questions whether a right exists and whether it has been
violated. Cotter -vs- Attorney General (1938) 5 EACA 18. That the
guide-lines were stated by the Court of Appeal for East Africa in
Auto Garage -vs- Motokov (No. 3) (1971) EA. 514. There are:
(i) the plaint must show that the plaintiff enjoyed a right; (ii) that right
has been violated; and (iii) that the defendant is liable. That if all three
elements are present than a cause of action is disclosed and any defect
or omission can be put right by amendment. That where a plaint
discloses a cause of action but is deficient in particulars, the alternative
is to ask for further and better particulars under 0.6 Rule 3. Or indeed,
the plaintiff could have sought leave to amend the plaint so as to
include particulars, say of negligence.

 In AG V Major General David Tinyefuza Constitutional Appeal

No. 1 of 1997 adopting the definition in Mulla on Code of Civil
procedure, Volume 1, 14th Edition at page 206, Wambuzi CJ sated the
proposition that a cause of action is every fact or bundle of facts
plainly appearing on the face of the plaint / petition that the plaintiff
/petitioner must prove, if traversed, to be entitled to judgment against
the defendant/ respondent.

 To determine whether or not a plaint discloses a cause of action, the

court must look only at the plaint and its annexure if any, and nowhere
else. In the case of Al Hajj N Sebaggala vs. A.G & Ors Const.
Petion No. 1/1999 the constitutional court defined a cause of action
as follows;
‘‘A cause of action means every fact, which if traversed, would be
necessary for the plaintiff to prove in order to support his right to a
judgment of court. It must include some act done by the defendant
and, it is not limited to the actual infringement of the right sued but
includes all material facts on which it is founded. It does not comprise
evidence necessary to prove the facts but every fact necessary for the
plaintiff to prove to enable him to obtain a decree and everything that
if proved would give the defendant a right to an immediate judgment
must be part of the cause of action. It has no relation to the defense,
 which may be set up by the defendant, nor does it depend upon the
character, of the relief prayed for by the plaintiff. The cause of action
must be antecedent to the institution of the suit.’’

 In the case of Micro Finance support centre ltd versus Uganda

Micro Entrepreneurs Association Ltd HCT -00-CC-CS-1007-2004,
Justice Bamwine stated: Halsbury’s Laws of England, Vol.1 at P.6
defines a “cause of action” as “that particular act on the part of the
defendant which gives the plaintiff his cause of complaint.” it is, so to
say the fact or combination of facts which gives a person the right to
judicial redress or relief against another. The relationale is that where
there is a right recognized by law, there also exists a corresponding
remedy for its violation. Thus 0.6 r1 of the Civil Procedure Rules
requires all pleadings generally to contain a brief statement of the
material facts on which the party pleading relies for claim or defence.
And under 0.7r1 (e), it is mandatory that a plaint contains the facts
constituting the cause of action and when it arose.

 In the case of GW Wanendeya v Stanbic Bank Ltd - (HCT-00-CC-

CS-0486-2005) Court held that there was no merit on the claim that
this suit discloses no cause of action. That the plaint clearly sets out
the rights of the plaintiff that were violated by the defendant, and that
the plaintiff suffered loss as a result thereof for which relief is sought
from the court. That the cause of action was a continuing cause of
action with regard to the continued detention of the plaintiff’s
certificate of title and the maintenance of a caveat on the said title.
This suit in that regard is not time barred.

 In an action in Slander or libel, the plaintiff must set out all the words
complained of in the plaint:
 Erumiya Ebyatu Vs Gusbarita: [1985] HCB 63 The Applicant sued
the respondent for slander before a magistrate’s court. The Pleadings
stated that the respondent was a wizard who used to bewitch people,
the actual words used by the applicant in the pleadings. Held: That in
an action for slander, the precise words used must be set out in the
plaint or statement of claim. The plaintiff must rely on the words set
out in the plaint and not any other expression. In this case there was
no allegation in the plaint that the applicant had said that the
respondent had bewitched his deceased father, thus there were
inconsistencies as between the pleadings and evidence in court.
Further held; in an action for slander the names of persons to whom
the words were uttered must be set out in the plaint otherwise court
will be reluctant to consider any publication to a person not named in
the pleadings.

 Samuel N. Nkaluba v Rev Daudi Kibirigi (1992) 2 ULR 49, as

regard libel, in all suits for libel, the actual words, complained of should
be set out in the plaint.
 Where the cause of action is founded on a Statute; it is a requirement
that the statute be pleaded; Ali Mustafa Vs Sango Bus Co.: The
plaintiff sued the defendant for damages arising from the death of his
brother allegedly knocked dead. Counsel for the defendant objected on
ground that the plaint disclosed no cause of action as no statute was
referred to [the Law Reform Miscellaneous Provisions Act]. As a
statutory claim the relevant statute is a material fact. Held: That O7 r
11(a) requires a plaint to be rejected where it did not disclose a cause
of action. Fatal accident claims could only be brought or based upon
the Law Reform (Miscellaneous Provisions) Act and if the act was not
pleaded, the plaint disclosed no cause of action.

 Where the plaintiff relies on particular documents for his cause of

action, the statement of claim must allege the nature of deeds and
documents upon which he relies in deciding his title; Phillips Vs
Phillips and Others (1878) 4 QB 127: In an action for recovery of
land on which the plaintiff has never been in possession, the statement
of claim must allege the nature of deeds and documents upon which he
relies in deciding his title and a general statement that by a party
which documents and crown grants in the possession of the defendants
without further describing them that the plaintiff is entitled to the land
is embarrassing and liable to be struck out in accordance with the
rules.

 Even if a party may seem to have a cause of action, this does not mean
that he or she will automatically win the case. There are other factors
which must be considered but establishing a cause of action is the first
step in going to court.

 Facts constituting a cause of action and when it arose. Daniel Sempa

Mbabali Vs. W.K. Kizza and 4 Others (1985) HCB 46; the plaintiff
sued the Defendants for repossession of his land. In a WSD the 1 st
Defendant stated that the plaintiff had not shown a clear cause of
action in the plaint and therefore the plaint was bad in law. Held: That
if a plaint shows that the plaintiff enjoyed a right, that right has been
violated and that the defendant is liable, then a cause of action has
been disclosed. The Plaint alleged that the plaintiff was entitled to the
land in dispute and the defendants had improperly registered it in their
names. This was sufficient to show that he had a right in the property
that had been violated by the defendants and thus established a cause
of action and hence the plaint was not bad in law.

 That if a plaint shows that the plaintiff enjoyed a right that has been
violated and that the defendant is liable then a cause of action has
been disclosed. Auto Garage and Others Vs Motokov [1971 EA
514
 If plaint shows that the plaintiff enjoyed a right and the right has been
violated the defendant and the defendant is thus liable, a cause of
action will have been shown. Otherwise if any of these essentials are
missing; there is no cause of action. Lake Motors Vs Overseas
Motor Transport cited Kebirungi Justine v Road Tainers Ltd &
Ors [2008 ] HCB 72 CA

 Where a plaint discloses a cause of action but is deficient in particulars,

the plaint can be amended so as to include the particulars e.g.
negligence. Tororo cement Co. ltd v Frokina International Ltd
SCCA No. 2/2001.

 A cause of action means every fact which if traversed, would be

necessary for the plaintiff to prove in order to support his right to a
judgment of the court. It is a bundle of facts which taken together with
the law applicable to them gives the plaintiff a right to relief against
the defendant. Alhajji Nasser Ntege Ssebaggala vs. the E.C and
KCC Constitutional Petition No. 1/99

 In deciding whether a suit discloses a cause of action, one looks

ordinarily only at the plaint assuming that the facts alleged therein are
true. Serapio Rukundo V AG Constitutional Case No. 3/92.

 A cause of action means every fact, which if traversed would be

necessary for the plaintiff to prove in order to support his right to a
judgment in court and is said to be disclosed if three essential
elements are pleaded and these include the existence of the plaintiff’s
rights, the violation of the right and the defendant’s liability for that
violation. Baku Raphael & Anor vs. AG constitutional app. No
1/2003.

 A suit does not disclose a cause of action if it does not show which civil
right the plaintiff is entitled to that was breached by the defendant. The
plaint should set out the rights of the plaintiff that were violated by the
defendant and the plaintiff suffered loss as a result thereof which relief
is sought from this court. GW Wenendeya vs. stanbic Ltd HCT-00-
CC-CS-0486 – 2005;

 The position of the law is that the cause of action remains alive until
the prescribed time for filing such action has lapsed Idah Lteruha vs
Ismail Muguta CACA No. 22/2002
 A cause of action has been considered in the case of Daniel Sempa
Mbabali vs W.K Kidza and 4 others (1985) HCB 46 the court
stated: if the plaint shows that the plaintiff enjoyed a right, that right
has been violated and that the Defendant is liable then a cause of
action has been disclosed.

 In the case of Micro Finance Support Centre Ltd versus Uganda

Micro Entrepreneurs Association Ltd HCT -00-CC-CS-1007-2004,
justice Bamwine Said: Halsbury’s Laws of England, Vol.1 at P.6
defines a “cause of action” as “that particular act on the part of the
defendant which gives the plaintiff his cause of complaint.” it is, so to
say the fact or combination of facts which give s a person the right to
judicial redress or relief against another. The relational is that where
there is a right recognized by law, there also exists a corresponding
remedy for its violation. Thus 0.6 r1 of the Civil Procedure Rules
requires all pleadings generally to contain a brief statement of the
material facts on which he party pleading relies for claim or defence.
And under 0.7r1 (e), it is mandatory that a plaint contains the facts
constituting the cause of action and when it arose. The consequences
of a plaint which discloses no cause of action are grave: it must be
rejected by the court. It is as serious as that. Therefore, before
rejecting a plaint for non- disclosure of a cause of action, the court
must be duly satisfied that the case as presented to it is un
maintainable and unarguable. Court held that it is settled law that
where a plaint fails to disclose a cause of action, then it is not a plaint
at all. It is considered a nullity which cannot even be amended. It was
so held in Auto Garage &Anor –Vs- Motokov (No. 3) [1971] EA 514 . The
element of a right enjoyed by the plaintiff is lacking in this case in its
current form. And if any of the elements of a cause of action, such as a
right enjoyed by the plaintiff which has been violated, is lacking, the
plaint is a nullity, and no amount of talking can save it, even if a
decision were to be post poned on it to a later date.

 The question whether a plaint discloses a cause of action must be

determined upon perusal of the plaint alone, together with anything
attached so as to form part of it, and upon the assumption that any
express or implied allegations of fact in it are true. Sheriff & Co. – vs
– Chotai Fancy Stores [1960] EA 374,: Kebirungi Justine v Road
Tainers Ltd & Ors [2008 ] HCB 72 CA

 There are three essential elements to support a cause of action in a

plaint Viz; a plaintiff enjoyed, the right has been violated and the
defendant is liable.

 It is settled law that the question whether or not a plaint discloses a

cause of action must be determined upon perusal of the plaint alone,
 together with anything attached as to form part of it.; Jeraj Shariff &
Co. Vs Chotai Fancy Stores [1960] EA at 375 Mikidadi Kawesa-
V-A-G (1973) I ULR 1221 ;( 1973) HCB 115

 Hamis Vs National Bank of India: That in deciding whether the

plaint disclosed a cause of action or nor the court had to confine itself
to the plaint assuming that what was alleged therein was true.

 Annexing a document to a pleading has the effect of incorporating the

contents of the document in the pleadings; Non- Performing Assets
Recovery Trust V Kapeeka Coffee Works Ltd SCCA No. 8 of
2001

 Where a plaint discloses a cause of action founded on an illegality, such is

un maintainable and should be struck out. John Buteraba vs Edrisa
Serwanga HCC No. 222/2008-

 In a cause of action founded on vicarious liability, it must be alleged that

the tort feasors were servants of the defendant in the course of their
employment; Bamuwayire Vs Attorney General (1973) HCB 87 This
was an application by the defendant to have the suit rejected on ground
that in filing to allege that the servants who arrested the plaintiff were
acting as servants of the defendant in an action for false imprisonment.
Held: That the court had to look only at the plant in deciding whether it
disclosed the cause of action against the defendant was not under any
obligation to ask for further and better particulars. The Plaint did not
disclose any cause of action as it did not allege the person who arrested
the Plaintiff were servants of the defendant and that the said servants
were acting in the course of their employment.

 Clementina Nayndori V E.A Railways: The defendant in his WSD

contended that the plaint did not disclose a cause of action. The plaint
alleged the mischief of the defendant’s servants but did not disclose that
the servants were in the course of their employment. Held: That in failing
to show that the defendant’s servants were acting in the scope of
authority the plaint failed to disclose the cause of action.

 Mubiru Vs Byensiba: A plaint will be struck out if it omits to show that

the defendant was working in the course of his employment. Wycliff
Kigundu V AG [1993] V KALR 80 SC Read also ; Bamuwayire-V-A-
G.(1973) HCB 87
 However, the above position should be contrasted with the decision in
Brigadier Smith Opon Acak V AG [1997] 111 KALR 69, that it is
sufficient if the plaint indicates that they were servants of the defendants.

 Relief, which the Plaintiff Claims.

 Every plaint shall state specifically the relief which a plaint retains either
simply on the alternative and it shall not be necessary to ask for general
or other reliefs which court may deem fit.-O7 r 7 CPR. This rule shall
apply to the defendant in his WSD if a definite sum of money is counter-
claimed. Read; Kasule V Makerere University [1975] HCB 376

 Vallabhudas & Sons Ltd & Mawangala Estate vs. Mateeka [2001 –
2005] HCB Vol. 2 68. The law is that special damages must be
specifically pleaded and strictly proved. Read Shah V Mohamed
Abdulla [1962] EA 76; on whether it is mandatory to have a special
heading “special damage”.

 Take me Home Vs Apollo Construction: Counsel for the Plaintiff asked

court to award damages for breach of contract but this was not
specifically pleaded in the plaint and he therefore asked court to make an
award under the umbrella of any other suitable relief. Held: That in regard
to the prayer for any other suitable relief or further and other relief that
advocates seem to make a practice of adding in their plaints it has no
meaning and does not add anything to what is claimed nor could be used
as generally inclusive come up and make shift so as to avoid the penalties
of sloppy inadequate and incompetent drafting of pleadings.

 Kisige V BS Uzakami Batolawo: The Plaintiff sued the defendant for

wrongful amount but never included any claim in the plaint. The plaint
was not amended by his advocate to accommodate such a claim and
counsel sought to rely on paragraph (d) urging court to exercise its
powers and award any other/further incidental relief. Held: That if general
damages are to be awarded to the plaintiff the plaintiff must plead and
prove them. Mere insertion at the end of the plaint of an omnibus clause
cannot assist the plaintiff to recover any damages, special or general. This
is so because even when general and special damages are prayed still the
said omnibus prayer always appears, thus it cannot afford his client any
reliefs. However, the mansion was technical and the plaintiff being a semi-
illiterate and layman, it was understandable and damages will be
awarded.

 The allegations set out in a plaint must support the prayers asked for in
the plaint and the prayers themselves must be legally justified. See HCT-
05-CV-MA-0072 of 2000 Augustine Tibahurira & others vs. IBAKA
Group CFI LTD AT Page 9. Also, Departed Asians Property
 Custodian Baord vs. Issa Bukenya t/a New Mars War House 1994-
95 HCB 60.

 Rejection of a plaint and Striking out of pleadings

 See Order 7 r. 11 for the grounds for rejection of a plaint and O.6 r.30 on
the grounds for striking out a pleading; Read; Baku Raphael Obudra &
Anor. V AG Constitutional Appeal No. 1/03 Kanyeihamba JSC;
alluded to an exception to the general rule that upon an application to
strike out a plaint for not disclosing a cause of action, the court ought to
restrict its ruling on the defect of the plaint and not to decide on the
merits of the case. The exception is where the court is satisfied that “the
cause of action” disclosed is clearly not maintainable in law. [See the
dicta in Nurdin Ali Dewji & others vs. G.M.M. Megriji & others
(1953) 20 EACA 132, and in Ismail Serugo’s case.

 Question of whether a plaint does or doesn’t disclose a cause of action is a

matter of law which can be raised by the defendant as a preliminary point
at the commencement of the hearing of the action even if the point had
not been pleaded in the written statement of defence [see O.7 r11CPR;
Tororo Cement Co. Ltd v Frokina international Ltd SCCA No.
2/2001.

 Mick Daddy Kaweesa Vs Attorney General (1973 1ULR 122) ; the

defendant applied to have the plaint struck out/rejected under O.7 r11 on
ground that it did not disclose any cause of action. Held: That when
deciding whether a plaint disclosed a cause of action or not the court has
to counteract itself with the plaint assuming what was contained was true.

 NB: Plaint must allege all facts necessary to establish a cause of action. If
the cause of action is disclosed any defect or omission may be put right
by amendment which may be impossible if no cause of action is disclosed.
See Tororo cement Co. Ltd v Frokina international Ltd SCCA No.
2/2001.

 When dealing with preliminary point of objection, it is always important

and useful, to have regard to the procedural law under which they are
raised. Distinction must be made between points of objection as to the
form of a pleading and those as to the substance of the case. It is one
thing to object that a plaint does not disclose a cause of action, and quite
another to object that the claim in the suit is not maintainable in law. That
is because the outcome is different. In the latter category, the court
decides on the merits of the case on basis of law only. The procedural
rules applicable to this category are 0.6 r.27 and 28, and 013 r.2 of the
civil procedure rules. On the face of it, the point of objection in the instant
case falls in the former category, where , subject to one exception that I
 will revert to later in this judgment, the court decides on only the fate of
the impugned pleading, without going into the merits of the case . The
relevant procedural law of that category is 0.6 r. 29 and 0.7 r.11 CPR.
Baku Raphael Obudra & Anor. V AG Constitutional Appeal No.
1/03 Kanyeihamba JSC;

 An application to strike out pleadings need not need a formal application,

a court will use its inherent powers to strike out a plaint or WSD where the
defect is apparent on the face of the record and where no amount of
amendment will cure the defect. The procedure is intended to stop
proceedings which should not have been brought to court into 1 st place
and to protect the parties from continuance of futile and useless
proceedings; Kayondo v AG (1988-90) HCB 127

 Striking out a pleading for want of disclosure of a reasonable cause of

action or reasonable defence or on ground of being frivolous and
vexatious; Order 6 r. 30

 The term “reasonable cause of action has been defined by Lord Pearson
in Drummond Jackson versus British Medical Association & others
[ 1970] IWLR 688 at page 606 to mean “ a cause of action with some
chance of successes, when ( as required by paragraph 2 of the rule ) only
the allegations in the pleading are considered”.

 Frivolous and vexations proceedings are proceedings brought with no

reasonable prospect of success, and with no useful or serious purpose but
to annoy the other party. See oxford dictionary of law 6th Edition at
page 564
 That the summary jurisdiction of the court to strike out pleadings was
never intended to be exercised by a minute and protracted examination of
documents and the facts of the case … to do that is to usurp the position
of the trial judge, ad to produce a trial of the case in chambers, on
affidavits only, without discovery and without oral evidence tested by
cross examination in the ordinary way See also Norman vs. Mathews
1916 85 L.J. K.B 857. Read Tikani V Motui [2002] SBHC 10;HC-CC-
029/2001 on the meaning of frivolous and vexatious suits

 Where a plaint is rejected, it does not preclude the plaintiff in presenting a

fresh plaint in respect of the same action. What is suffered is cost or
limitation.

 THE DEFENCE:
 S. 20 CPA: Once a suit has been instituted, the defendant has to appear
and answer the claim (O.5 r 3). See different modes of responding to
summons; vide; filing a defence, an application for leave to appear and
defend, an affidavit in reply all depending on the type of summons.
 Written Statement of Defence is a formal document in which a defendant
in numbered paragraphs denies or admits the allegations in the plaint
and asserts the defence to the claim. The function of defence is to state
the grounds and the material facts on which the defendant relies. It is to
inform the plaintiff and court what the defendant admit of the plaintiff’s
claim and what he denies and what grounds or fact the defendant relies
on to answer the plaintiff’s claim. The defendant is obliged to deal with
each allegation of fact and expressly admit it or deny it, traverse it or
admit it with qualification.

 The function of a WSD is to state the grounds and material facts on which
the defendant relies for his defence. O. 8 r1 (a).

 Filing of a defence:
 Order 8 r 1: A defendant may, if so required by court at a time of the
issued of summons or any time thereafter as prescribed by court file a
defence within 15 days unless otherwise ordered by court. See Mark
Graves V Balton (U) HCMA No.158 of 2008 for time within which a
defence should be filed; See also Rule 11 of the Government
Proceedings (Civil Procedure) Rules .; AG is given 30 days
within which to file a defence.

 How is a defence filed

 O.9 r1: This is done by delivery of a written statement of defence

dated on the day it is filed, stating the name of the defendant if he is to
appear in person or his advocate and the address of service. The
defendant shall file and sent it, showing the date and return it to the
person filing it and the defence shall be served onto the plaintiff. See
copy of the defence.

 Read Order 8 r.19 on Dismissal of suit where summons unserved and

plaintiff fails for a year to apply for fresh summons.; Read Nile
Breweries Ltd V Bruno Ozunga T/A Nebbi Boss Stores HCT-00-
CC-CS-0580-2006

 Extension of time to file a defence;

 Extension of time may be when parties have consented or where the
party has applied to court. [see s.96 CPA] Godfrey Magezi & Brain
Mbazira V Sudhir Rupaleria SCCAPP 10/2002. Applicant sought
extension of time within which to file an appeal out of time to appeal
against the decision of the Court of appeal. Held; that court has
jurisdiction to extend for the doing of an act so authorised or required.
The omission, mistake or inadvertence of counsel ought not to be
 visited on the litigant leading to striking out his appeal thereby denying
him justice. Even if the legal advisor’s actions have been negligent, an
extension of time has been accepted.

 On what amounts to sufficient cause to warrant extension of time to

file a defence; Read; Robert Opio & Anor V Edward Kabugo
Sentongo HCMA No.166-2002

 Read also; Mable Mulumbav Hanna Semakula 1993] IV KALR

84- On the question of the grounds for grant of leave to file a written
statement of defence out of time. See also; AG V APKM Lutaaya
SCC Appl No. 12 of 2007

 That the legal effect of extending time to file an appeal out of

time[applicable to a defence] when the appeal [or defence] had
already been filed (out of time) is to validate that appeal or to excuse
the late filing of that appeal. See also Credit Finance Co Ltd V
Makerere Properties SCC Appl No.1 of 2001.

 Object of Defence, O.5r 1 (a); The object of a defence is to inform

the plaintiff and court of what the defendant admits and denies in the
plaintiff’s claim and what grounds of facts the defendant relies on to
answer the plaintiff’s claim.

 Mode of defence: the defendant is obliged to deal with every

allegation of fact and expressly admit or deny it. General denials may
not suffice; Joshi V Uganda Sugar Factory Limited [1968] EA 570;
Ben Byabashaija & Anor. V AG [1992] 1 KALR 161; Chukwuma
f. Obidegwu V Daniel B Semakadde [1992] 11 KALR 64

 Specific denial: Order 8 r3 provides that every allegation of fact in the

plaint, if not denied specifically or by necessary implication or stated to
be not admitted in the pleading of the opposite party shall be taken to
be admitted except as against a person with a disability provided that
the court may in its discretion require any facts so admitted to be
proved otherwise by such admissions. Melista Meyasi Vs National
Bank of Commerce: Held: That by order 8 r 8 CPR [TZ] each
allegation of fat in the plaint which is not admitted must be specifically
dealt with in the defence. A general denial is not sufficient.

 Nature of a Written Statement of Defence

 The defendant must respond to all allegations of fact and law:

 Under O 8 r 3 CPR all denials must be specific. A party who intends to
contest the case has to deal with the opponent’s pleadings and that
may be done by-
a) Denial of the whole or essential part of the averments of facts
contained in the pleadings. This is called traversing.
b) He may say that its half truth and include facts that gives the case a
different complexion. This is called confession and avoidance ,
saying that its true but not entire truth and going on to allege facts
which destroy the effects of the allegation{confession and
avoidance}.
c) He may take a point of law e.g limitation or res judicata See Tororo
cement Co. Ltd v Frokina international Ltd SCCA No. 2/2001.
d) By admission in which case its case will be complete. Makerere
University V Rajab Kagoro [2008] HCB 103on what amounts
to an admission

 Denials must be specific or otherwise may be deemed to have been

admitted.

 The Effect of Failure to File a Defence

 This depends on the nature of the suit and the subject matter as well
as the defendant in question. Generally, a defendant who fails to file a
defence within the time limited by law is deemed to have excluded
themselves from the proceedings in court. See Order 9r.6, 8 and 11
CPRs on default, interlocutory and ex parte judgements arising
out of default of filing a defence; Dembe Trading Enterprises
Ltd V Uganda Confidential Ltd and Anor. HCT-00-CC-CS-0612-
2006

 The Defendant will have excluded himself from proceedings unless he

applies to show cause as to why he did not file the defence within the
time allowed. Mark Graves V Balton (U) HCMA No.158 of 2008;
Bukenya Vs Attorney General (Supra). Twiga Chemical
Industries Ltd V Viola Bamusedde CACA No. 9/2002; Silas
Bitaitana V Emmanuel Kananura CACA No.47/1976; AG & UCB V
Westmont Land (Asia) Bhd & Othrs. [1997-2000] UCLR 191

 See exception where the Attorney General is the defendant Read;

Agasa Maingi v AG HCS No. 95/2002 on the procedure before a
default judgement is entered against government.

 Sebunya Vs Attorney General [The Plaintiff sued the Attorney

general who failed to file a WSD within the statutory period and was
represented at the hearing. A state attorney appeared for the
defendant. Held: A defendant who files no defence could not be heard.
The state attorney as in the instant case even if he had appeared in
 time would have had no locus standi and could not be heard Held:
Further; the court has discretion to allow the defendant who has not
filed a defence to be heard but in the circumstances the discretion
would not have been exercised in favour of the applicant. Sir William
Duffus on O.9 r10 is silent on the procedure to be followed when the
Applicant fails to file a defence. The procedure is different when a
defendant fails to enter appearance in that case the action is set down
for hearing exparte, no notice is served on the defendant but
provisions is made by r. 18 of that order that a defendant does not
appear and desires to put in the proceedings then the court is given a
wide discretion and has powers to allow a defendant to take put in the
proceedings even though this would no doubt be on terms to that the
applicant would not suffer through the defendant’s default. But also
given a definite and gratuitous advantage to the defendant the guilty
party. Since decision would have been contrary to the elementary
principles that a defendant must if ordered disclose his defence by
trial; O.VII r1 and be bound by his pleadings, O.VI r 3. See S. 96 on
extension of time to file a defence; AG & UCB V Westmont Land
(Asia) Bhd & Others [1997-2001] UCLR 191

 Admission of Liability; Elizabeth Imagara and 20rs v AG 1995) IV

KALRS the effect of failure to file a defence whether it constitutes
admission of liability.

 Cleaves Hams Ltd Vs British Totutorial College (Africa) Ltd:;

Held by Hamis: That failure to file a defence operates as an
admission of all allegations in the plaint except as to damages. See
Order 9r. 8 CPR B

 Badruidin and another VS Pyarali: Held: Judgment may be given

against a defendant who fails to file a defence. See Order 9r.6 CPR
Hajji Asuman Mutekanga V Equator Growers (U) Ltd SCCA No.
1995

 Where the defendant admits liability in his WSD, the proper remedy for
the plaintiff is not to apply for the defence to be struck out but to
proceed under order 13 r.6 which empowers a trial court to inter alia
enter judgement against the defendant who admits liability in his
defence; Francis Sebuya V Allports Services (U) Ltd SCCA No.
6/1999

 The rule that parties are bound by their pleadings applies to defences; only
matters in the WSD are to be considered. Inter freight Forwarders (U)
LTD v EADB SCCA No.13/1993
 In the case of Peter Bakaluba Mukasa Versus Betty Nambooze SCCA
No.4/2009 Justice Katureebe JSC cited the statement of Order, JSC, (RIP) in
the case of Interfreight Forwarders Case quoted Wambuzi CJ (as then
he was) citing the case of SEGAMULL vs. GALSTAUN (1930) AIR PC
205, when an issue was framed but certain particulars had not been
pleaded. He said, at page 129;- ‘‘It is true that in SEGAMULL vs. GALSTAUN
(1930) AIR PC 205, a case in which the variation of an agreement was not
pleaded, but was nevertheless put in issue, contested and proved by the
privy council said;
‘’Their lordships are satisfied that notwithstanding the form of the plaint
the suit was fought by the parties deliberately upon issues substantially as
framed by the trial judge and ought upon that footing to be determined.’’
The judge held that the appellant ought to have shown that either the
respondent had departed from her pleadings or that he, the appellant, had
not known the case that he had to answer. The Judge cited Order JSC (RIP)
in UGANDA BREWERIES LTD vs. UGANDA RAILWAYS CORPORATION
[2002[ E.A 634, elaborated the issue of departure from pleadings and
what the test is in determining whether a complaint should be allowed to
succeed, he put it thus at page 643:
‘‘To my mind, the question for decision underground 2(i) of the appeal
appears to be whether the party complaining had a affair notice of the case
he had to meet, whether the departure from the pleadings caused a failure
of justice to the party complaining; or whether the departure was a mere
irregularity, not fatal to the case of the respondent, whose evidence
departed from its pleadings.’’ That the learned judge went on to reiterate
the principle he had set out in his judgment in the Interfreight
Forwarders Case and continued thus:
’’ In GANDY vs. CASPAR AIR CHARTER LIMITED, Sir Ronald Sinchar said;-
‘The object of pleadings is of course to ensure that both parties know what
are the points in issue between them, so that each may have full
information of the case he has to meet and prepare his evidence to support
his own case or to meet that of his opponent.’’
The Judge further stated that the Uganda Breweries Ltd case established
that even where there is irregularity in pleadings or departure from
pleadings, but as long as the opposite party has a fair notice of the case he
has to answer and he does answer it and adduces evidence accordingly,
and has not suffered injustice, the court will not allow such irregularity or
departure to frustrate the determination of the case. That bearing the
principle involved under the concept of fair hearing and trial, given that the
appellant did have fair notice of the case which he duly respondent to, he
was unable to find that the irregularity of not putting the particulars of
bribery in the body of the respondent’s affidavit unduly prejudiced the
appellant in any way. That the court must also bear in mind the direction of
Article 126(2) (e) of the constitution that subject to the law, substantive
justice must be administered without undue regard to technicalities. That in
the peculiar circumstances of the case, it would defeat justice to hold that
had gone through a full trial be defeated by a technicality particularly when
the appellant did not raise that technicality before, and there is no evidence
that he suffered any prejudice.
 Where a Written Statement of Defence doesn’t disclose a reasonable
defence, it may be struck out; Libyan Arab Bank Vs Entrap Co. Ltd. This
was an application under O.48 r 1 CPR for an order to strike out the defence
and enter judgment for the applicant on grounds that the defence disclosed
no reasonable or any answer to the claim and that it was frivolous and
vexatious and filed merely to obstruct or delay justice. At the hearing
counsel for the defendant produced two letters referred to as an affidavit
but not appended thereto and sought to rely on them. Held: That it is well
established that in considering applications under O.6 r 29 the court has to
look at pleadings alone and any annextures thereto and not any
subsequent affidavits. The affidavits of counsel and two letters were
inadmissible for the purpose of considering the said order. On Mode of
Defence: Held: That in its written statement of defence it was clear that the
defendant denied being indebted to the plaintiff in a manner alleged by the
plaintiff in the plaint. This was perfectly proper answer against the plaintiff’s
claim which raised triable issues of fact and law fit for trial by this court.

 The distinction given to court under O.6 r.30 to strike out pleadings should
only be exercised in plain and obvious cases since such applications were
not intended to apply to any proceedings which raised a serious question of
law. The WSD raised a reasonable defence to the plaintiff’s claim and was
neither frivolous nor vexatious and an abuse of the process of court. Nile
Bank ltd v Thomas Kato & others [1997 – 2001] UCLR 325

 Where a Written Statement of Defence relies on fraud or misrepresentation,

the particulars will have to be pleaded.

 A defence with a Counter claim

 A Counterclaim is substantially a cross action and not a mere defence.
Every cross action cannot be pleaded on a counterclaim provided that it is
of such a case not as can be tried more conveniently by some other
tribunal. In a counterclaim the defendant claims that he is entitled to relief
or a remedy as against the plaintiff. O8 r2. a defendant may in an action
set off or set up by way of counterclaim against the claim of the plaintiff.

 O.8 r 7 and 8 [Specific counter claim and title to a counter claim ]: When
any defendant seeks to rely upon any ground as supporting a right of
counter claim he shall in his statement of defence state specifically that
he does so by way of counterclaim. Read Nile Breweries V Bruno
Ozunga T/A Nebbi Boss Stores HCT-00-CC-CS 0580-2006 on the
nature, title and consequences of a counter claim Geoffrey Ouma V
Kaledonia Karuragire HCCS No. 418 of 2000

 In the case of Nampela Trading vs. Yusuf Semwanja [1973 ULR 69,
the Court observed that 08 r 8 CPR provides that where a defendant in his
 defense sets up a counter claim which raises question between himself
and the plaintiff together with any other person then shall add the title of
his defense a further title similar to the title of the plaint setting forth the
name of all persons who if such counter claim was to be enforced by all
action would be defended to such cross action and shall deliver to the
court his defense or service on such of them as parties to action together
with his defense for service on the plaintiff within a period required to file
a defense. The court observed that where any such person is not a party
to the suit he shall be summoned to appear by being served with a copy
of the defence which shall be served with rules regulating service of
summons and that person not already a party who is served with the
defense and counter claim must appear thereto as if he had been served
with summons in the suit and that person summoned must give a reply
within 15 days if he wishes to take part in proceedings.

 NB: A counter claim must have a cause of action and must specify the
relief sought from court; Fernande Vs Peoples Newspaper Ltd Held;
that since contributory negligence has not been pleaded, the court should
not have considered and awarded the damages.

 Separation of counter-claim: O.8 r 2: Court may on application of the

plaintiff order separate trial in case the counter-claim will no be
conveniently disposed in the pending action. Uganda Wholesalers Vs
Impex House Ltd: The Plaintiff (Respondent) claimed some money as
the price of goods sold and delivered to the defendant (Applicant). The
defendant put forward a counter-claim against the plaintiff in two parts.
The Magistrate under .8 r 2 refused to decide on the matter and stated
that the counter-claim be tried separately. The plaintiff had not applied for
such separate trial of the counter-claim. Held: O.8 r 2 only gave the court
discretion to order separate trial of a counter-claim when application had
been made for such. The plaintiff did not wish the counter-claim to be
tried separately and the magistrate would be directed to adjudicate upon
the counter-claim.

 Reply to a WSD

 Where a defence is made with or without a counter claim and it raises

new issues, the plaintiff / defendant to the counter claim may make reply
to the defence; Order 8 r.18 of the CPR; In the case of Katuramu V
AG (1986) HCB 39 Held; that although a plaint doesn’t include a reply by
the plaintiff, nevertheless a reply forms part and parcel of his case; where
a reply is filed in answer to the defence, it must be considered together
with the plaint with the result that it may supplement or cure any
deficiency in the plaint

 AMENDMENT OF PLEADINGS
 The wide and extensive powers of amendment vested in courts are
designed to prevent failure of justice due to procedural errors, mistakes
and defects and serve the aims of justice. A party having filed pleadings
may develop change of heart, new facts may come to light, may discover
that he made a mistake or omitted some material facts in his pleadings.
The rules of procedure allow a party to correct any error or cure any
defect or include any omission through amendment of pleadings. This
involves alterations or change of pleadings, add new facts or other
wordings.

 The object of amendment of pleadings is to enable the parties alter their

pleadings so as to ensure that the litigation between them is conducted,
not on the false hypothesis of facts already pleaded or relief or remedy
already claimed but rather on the basis of true state of facts or true relief
or remedy which the parties really and finally intend to rely on or to claim.

 Order 6 rules 19, 20 and 21,22, 23, 24,25 CPR contain the relevant laws.
O 6 r 19 CPR provides that the court may, at any stage of the
proceedings, allow either party to alter or amend his or her pleadings in
such manner and on such terms as may be just, and all such amendments
shall be made as may be necessary for the purpose of determining the
real questions in controversy between the parties. These amendments
help to cure incompetence, negligence or carelessness in drafting
pleadings.

 Amendments without leave of court

 Under O 6 r 20 CPR A plaintiff may, without leave, amend his or her
plaint once at any time within twenty-one days from the date of issue
of the summons to the defendant or, where a written statement of
defense is filed, then within fourteen days from the filing of the written
statement of defense or the last of such written statements. When he
does so, he must serve the amended pleading on the opposite party.
The right extends to plaint, written statement of defense, counterclaim,
defense to counter claim and reply. It can only be exercised only once
and only before close of pleadings. Under O 6 r 21 CPR, a defendant
who has set up any counterclaim or setoff may without leave amend
the counterclaim or set off at any time within twenty-eight days of the
filing of the counterclaim or setoff, or, where the plaintiff files a written
statement in reply to the counterclaim or set off, then within fourteen
days from the filing of the written statement in reply.

 A pleading can be amended to add or change some facts once before

the close of the pleadings without the leave of court being needed. A
party seeks leave of court after close of the pleadings under O.8 r 18.
The amended pleading must be re printed and the superseding words
must be underlined. Where leave is needed an application must be
 made in court and the heading of the pleading must indicate the
amendment.

 Badru Salongo vs. Kasese Town Council [1992-93] HCB 159, In

this case court found that under O 6 r 19 (now r 20) a plaintiff may
amend his plaint once without leave of court at any time within 21 days
from the date specified in the summons or were a written statement of
defence is filed then within 14 days from the date of filing the defence.
The court observed that amendment in pleadings sought before
hearing of the suit should be freely allowed if can be done without
causing injustice to the opposite party or without prejudice its rights
existing at the date of amendment.

 Kasolo vs. Nile Bus Co. [1979] HCB 282 In that case court found
that although O 6 r 18 empowered the court to allow any party to alter
or amend the pleading at any stage of the proceedings, this must be
within or during the period within which pleadings must be completed
and not during hearing. That pleading must be complete before suit is
set for hearing. For amendment of pleadings during hearing then the
suit might never come to an end.

 Amendment by Consent.

The time for delivering, amending or filing any pleading, answer or other
document may be enlarged by consent in writing of the parties or their
advocates without application to court-O.51 r 7 CPR.

 Right to amend is reciprocal.

 Where an amendment is served on the defendant, he may if he has
already served a defence, amend his defence. Where an amended
defense is served on the plaintiff, he may if he has already served a
reply, amend his reply. O.6 r 24 CPR.

 The leave of Court

 The Court has wide and ample power to allow the amendment of
pleadings. The following principles appear to be recognized as
governing the existence of discretion or allowing amendments. In the
case of Gaso Tranpsort Services (Bus) Limited V Martin Adala
Obene SSCA No.4 of 1994, the Supreme Court held that it is now
trite law that courts are more flexible in allowing amendments
whenever an application or amendments were made promptly at the
earliest stage of litigation. That the more advanced the progress of
litigation, the more burden will be upon the applicant to satisfy court
that leave for amendment need to be granted. The court found that a
belated application for amendment places a heavy burden on the
 applicant to convince court as to why he did not apply earlier but court
generally give leave to allow amendment rather than give judgment on
ignorance of facts which ought to be known before rights are definitely
sighted. The Court recognized four principles governing the exercise of
discretion in allowing amendments;-
1. That the amendment shouldn’t work injustice to the other
side. That an injury that can be compensated by award of
costs is not treated as an injustice
2. Multiplicity of proceedings should be avoided as soon as far as
possible and all amendments, which avoid such multiplicity,
should be allowed
3. An application made malfide must not be granted
4. No amendment allowed where it is expressly or implicitly
prohibited by law (Limitation of Action)

 The rationale behind procedure is in Cooper vs. Smith (1883) 26

CHD 71, the Court observed that it is a well-established principle that
the object of court is to decide the rights of party and not to punish
them for mistakes made in the conduct of their cases by deciding
otherwise than in accordance with their rights. The court knew of no
error or mistake if not fraudulent or intended to over reach which court
ought not to correct if it can be done without injustice to the other side.
Courts do not exist for the sake of discipline but for the case of
deciding matters in controversy and doesn’t regard such amendment
as a matter of favor or grace that as soon as it appears that the way in
which a party has framed his case will not lead to a decision of real
matters in controversy it is as such a matter of right on a party to have
it collected if it can be done without injustice.

Pre-Entry Exam 2011/2012

Qn. 42 A defendant was served with summons on 31 st July, 2011,
giving him 15 days to file a defense. He just put the papers in his
drawer and forgot about them. What advice would you give him today?

Pre-Entry Exam 2012/2013

Qn. 42 The Plaintiff sued the defendant for trespass, seeking an
eviction order. The defendant did not file a defense. There is an
affidavit of service on record. What steps should the plaintiff take?

Pre-Entry Exam 2014/2015

Qn. 43 Explain what you understand by amendment of pleadings.

Qn. 45. A group of voters have threatened to sue their member of

parliament if she does not seek re-election. What would be the likely
defect in their plaint?

Pre-Entry Exam 2015/2016

 Qn. 39. Explain what you understand by pleadings

Pre-Entry Exam 2016/2017

Qn. 3 Why is a party not permitted to depart from his or her pleadings?

Qn. 4 Which of the following documents does not require the signature of
the applicant or counsel to be valid?

A. Notice of Motion
B. Plaint
C. Written Statement of Defense
D. Chamber Summons
E. None of the above.

TOPIC XII

LIMITATION OF ACTIONS

One of the most important tasks which an advocate needs to undertake in

a suit is to ascertain when the limitation period will expire. It is noteworthy
that court process must be filed within the limitation period. If the court
process is filed out of time, the defendant will have a defense, whether or
not will plead limitation in the defense. Court can also on its own
discretion take cognizance of the fact of limitation.
Nature of limitation

A limitation period is a time limit during which an action may be brought

thereafter a potential plaintiff is barred and may no longer bring his
action. The basic reason for limitation is that the potential defendants
should not have to live with the risk of legal action indefinitely if for one
reason or the other the potential plaintiff does not pursue his remedy and
that old actions are difficult to try when memories are clouded, and
evidence has been probably lost. Statutes of limitation are in their nature
strict and inflexible enactments.

The limitation statutes in Uganda are the Limitation Act Cap. 80 and the
Civil Procedure and Limitation (Miscellaneous Provision) Act Cap 72. They
impose a limit of time upon an existing right of action.

Basic Principles of Limitation

The different limitation periods are prescribed for different causes of

action in the Limitation Act. The determination of when time begins to run
depends upon the date on which the cause of action arises, and is
therefore dependent upon the nature of the cause of action.

Section 3 of the limitation Act provides for six years limitation of actions
of contract and tort and certain other actions. In the case of Mundele
Sunday v Pearl of Africa Travels and Tours CIVIL SUIT NO 89 OF
2011 the issue was whether the Plaintiff's action was time barred under
the Limitation Act cap 80 laws of Uganda having been brought more
than five years from the date the alleged cause of action arose. Court held
that under section 3 (1) (a) of the Limitation Act Cap 80 causes of
action founded on contract or tort are not to be brought after the
expiration of six years from the date on which the cause of action arose.
The Limitation Act cap 80 laws of Uganda provides for a limitation period
of six years from the date the cause of action arose in respect of contract
or tort within which to file an action for appropriate remedies. On the
other hand section 3 (d) provides for actions to recover any sum of money
by virtue of any enactment, other than a penalty or forfeiture or sum by
way of penalty or forfeiture. That the Plaintiff filed the action on 18 March
2011less than six years after the alleged cause of action That the Plaintiff
was within the limitation period prescribed by section 3 (1) (a) of the
Limitation Act Cap 80 laws of Uganda. The only applicable provision which
is section 3 (1) (d) of the Limitation Act is the proviso thereto which
provides as follows: “except that in the case of actions for damages for
negligence, nuisance or breach of duty (whether the duty exists by virtue
of a contract or of provision made by or under an enactment or
independently of any such contract or any such provision) where the
damages claimed by the Plaintiff for the negligence, nuisance or breach of
duty consist of or include damages in respect of personal injuries to any
person, this subsection shall have effect as if for the reference to six years
there were substituted a reference to three years.”. That a claim for
damages on a cause of action of negligence, nuisance or breach of duty in
respect of personal injuries to any person are the only instances where
the limitation period is three years from the date the cause of action
arose. There is no action for damages for negligence, nuisance or breach
of duty in respect of personal injuries to any person in this suit and the
limitation period for the Plaintiff's cause of action is six years. That in the
premises the Plaintiff's action is not time barred.
In the case of Rugamayo Vs Uganda Revenue Authority (LABOUR
DISPUTE NO 27 OF 2014 ) the industrial court stated that it was not in
dispute that the Limitation Act provides for limitation of actions in a sense
that one is barred from filing an action in courts of law after a specific
period has elapsed from the time that the cause of action arose. In the
case of causes arising from contract, the Act provides that such actions
must be filed in courts of law within six years of the accrual of such cause
of action. That the legal question for the court therefore is: Whether the
filing of this matter did or did not offend the provisions of the
Limitation Act. Court held that in order to determine whether a matter
is barred by limitation, the court must, first ascertain when the cause of
action arose. That in the present case the status of the claimant was
known to him through the letter of dismissal which he acknowledged
within the time prescribed under the Limitation Act. That the cause of
action arose on the date that the claimant was dismissed or at the latest
the date that he received the said letter of dismissal. That the suit was
definitely filed out of time thus offending the provisions of the Limitation
Act. Court further held that unless the claimant is saved by the
exemptions under the Limitation Act a matter filed outside the prescribed
time must be struck out. That time limits set by statute are not mere
technicalities but are of substantive law and must be strictly complied
with and that therefore any matter filed outside these limits must be
struck out irrespective of any merits in the case.

Section 5 of the limitation Act provides for twelve years limitation of

actions to recover any land. In the case of Hammann Ltd & Anor v Ssali
& Anor MISCELLANEOUS APPLICATION NO. 449 OF 2013 the
application was brought under Order 7 rr.11 (a) (e) and 19 of the Civil
Procedure Rules (CPR) for orders that the Respondents’/Plaintiffs’ plaint in
be rejected. The issue was whether the plaint in H.C. C.S No. 756 of 2006
is time barred. Court held that Section 5 of Limitation Act which governs
the limitation period for recovery of land provides as follows; “No action
shall be brought by any person to recover any land after the expiration of
twelve years from the date on which the right of action accrued to him or
her or, if it first accrued to some person through whom he or she claims,
to that person.” That It is the established law that a suit which is barred
by statute where the plaintiff has not pleaded grounds of exemption from
limitation in accordance with Order 7 r.6 CPR must be rejected because in
such a suit the court is barred from granting a relief or remedy.
See: Vincent Rule Opio v. Attorney General [1990 – 1992] KALR 68;
Onesiforo Bamuwayira& 2 Or’s v. Attorney General (1973) HCB 87; John
Oitamong v. Mohammed Olinga [1985] HCB 86. Court further held that
Section 25 of the Limitation Act) is to the effect that in actions founded on
fraud, the period of limitation shall not begin to run until the plaintiff has
discovered, or could with reasonable diligence have discovered the fraud.
It is also the settled position that in determining the period of limitation,
court looks at the pleadings only, and no evidence is needed.
See: Polyfibre (U) Ltd v. Matovu Paul & 3 O’rs,(supra); Madhivani
International S.A v. Attorney General(supra). Court further held that the
“extension” of the limitation period referred to under Section 2 of the
limitation Act is not a unilateral action by court to extend the period
merely because the action is founded on fraud. No such power, whether
residual or inherent, resides in court to extend time fixed by statute. It is
up to the plaintiff to raise a plea that conforms to the dictates of Section
25of the limitation Act before he can benefit from exemption from
limitation for the period he was unaware, or could not have with
reasonable diligence been aware of the fraud. It is not that just because a
cause of action is founded on fraud the limitation period will automatically
apply. court referred to the case of Re Application by Mustapha
Ramathan, C.A. Civ. Appeal No.25 of 1996, per Berko JA., that the purpose
of limitation is to put an end to litigation. Those statutes of limitations are
by their nature strict and inflexible enactments. Their overriding purpose
is interest republic fins litum, meaning that litigation shall automatically
be stifled after a fixed length of time, irrespective of the merits of a
particular case. That also in Hilton v.Satton Steam Laundry [1946] IKB 61
at page 81 it was held that statutes of limitation are not concerned with
merits. Once the axe falls, it falls, and a defendant who is fortunate
enough to have acquired the benefit of the statute of limitation is entitled,
of course, to insist on his strict rights. The effect of a suit being time
barred is that it shall be rejected. See: Vincent Rule Opio v. Attorney
General, Onesiforo Bamuwayira& 2 Or’s v. Attorney General; John
Oitamong v. Mohammed Olinga .

Cause of action

A cause of action is the basic concept determining a limitation period.

Action is defined to include any proceeding in a court-S.2 of the Limitation
Act.
For a cause of action to arise for limitation purposes there must be a
competent parties that is there must be a plaintiff who can succeed and a
defendant against whom he can succeed if he established his case. Until
this situation occurs no cause of action can arise. Time cannot run where
the potential defendant is dissolved.
In the case of M&D Timber Merchant and Transporters Ltd v Hwan
Sung Ltd (MISCELLANEOUS APPLICATION NO. 0796 OF 2015) the
issue was whether the HCT-CS-409-2013 is time barred by
statute. Court held that the issue specifically and directly relates
to the time when the cause of actio arose. This position is
premised on the principle which was enunciated in F.X Miramago
vs. Attorney General [1979] HCB 24 that the period of limitation
begins to run as against a plaintiff from the time the cause of
action accrued until when the suit is actually filed. Once a cause
of action has accrued, for as long as there is capacity to sue, time
begins to run as against the plaintiff. Furthermore, Order 7 r.6
CPR also requires that;“Where a suit is instituted after the expiration of
the period prescribed by the law of limitation, the plaint shall show the
grounds upon which the exemption from that law is claimed.” The above
provisions were considered by the Court of Appeal in Uganda
Railways Corporation vs. Ekwaru D.O & 5104 O’rs CACA No.185 of 2007
[2008] HCB 61, in which it was held that if a suit is brought after
the expiration of the period of limitation, and no grounds of
exemption are shown in the plaint, the plaint must be rejected.
The rationale of the law of limitation was aptly stated in Caltex Oil
(U) Ltd vs. Attorney General, HCCS No. 350 of 2005 that the intention
for the enactment of statutory periods of limitation was to serve
several aims among which is protecting the defendant from being
vexed by stale claims, and that it designed to encourage litigants
to initiate proceedings within reasonable time. That for a plaintiff
to benefit from the exemption from the law of limitation, he or
she must plead grounds showing his or her disability to file the
suit within the time prescribed by the law. The disability must be
a legal disability in a sense that Section 1(3) of the Limitation
Act provides that a person shall be deemed to be under a
disability while he or she is an infant or of unsound mind. In my
view, since the provision is very clear and specific, no other basis
of disability calls for recognition under the law.

Order 11 (d) of the civil procedure rules a plaint shall be rejected

where the suit appears from the statement in the plaint to be barred by
any law.
In the case of Okweng Washington vs. AG & Mike Okello HCCS No.
16 of 2004, court relied on Onesifolo Bawayira& 2 O’rs vs. Attorney
General (1973) HCB 87, it was held that; “In considering whether or not
a plaint is time barred or discloses no cause of action, the court must look
only at the plaint and nothing else.” The court went on to hold that; “A
plaint that is deficient in that it shows that the action is time barred or
discloses no cause of action must be rejected. See: Pearl Motors Limited
vs. Uganda Commercial Bank (1998) III KARL 1. It is a prerequisite of a
party who seeks to have substantial justice done to him or her that that
party substantially complies with the law, more so where that law is
written law.”
In the case of Mundele Sunday v Pearl of Africa Travels and Tours
CIVIL SUIT NO 89 OF 2011 Court held that the question whether a suit
is barred by limitation can be considered by a perusal of the plaint only.
This is consistent with Order 7 rule 11 (d) of the Civil Procedure
Rules which provide that the plaint shall be rejected where the
suit appears from the statement in the plaint to be barred by any law. In
other words it must appear from the statement in the plaint to be barred
by any law. The holding in Iga versus Makerere University [1972] EA
at page 65 is that of the East African Court of Appeal sitting at Kampala.
Mustafa J.A. at page 66 of the Judgment considered Order 7 rule 11 (d)
of the Civil Procedure Rules and held that a plaint which is barred by
limitation is a plaint, in the words of that sub rule that is "barred by law".
He further held that the judge in the circumstances should have rejected
the plaint under Order 7 rule 11 of the Civil Procedure Code instead of
dismissing it. Secondly the Court of Appeal held that a Plaintiff who seeks
exemption from the law of limitation has to plead it under Order 7 rule 6
of the Civil Procedure Rules. From a consideration of Order 7 rule 11
of the Civil Procedure Rules, the issue of whether the Plaintiff’s plaint
is barred by law has to be considered upon perusal of the plaint only and
anything attached to the plaint forming part of it.

At common law, if a potential plaintiff is an enemy alien, no cause of

action can arise since he has no standing to bring his action, and this
situation continues unless he ceases to be an enemy alien.

Consecutive causes of action will normally arise where the defendant is

under a continuing duty which he breaches on separate occasions,
possibly years apart.

An amendment introducing a new cause of action to defeat the defence of

limitation should not be allowed. The court has always refused to allow a
party or cause of action to be added where, if it were allowed the defence
of statute of limitation would be defeated, the court has never treated it
as just to deprive a defendant of a legal defence.

Where the time to institute an action is set by legislation then court has
no power to extend such time. This rhymes well with the general principle
that once statute barred always statute barred. When a statute fixes time
and there are no provisions within that statute to enlarge time the court’s
hands are tied. They cannot enlarge time. In the case of Makula
International Ltd vs. His Eminence Cardinal Nsubuga [1982] HCB
11, held that a court has no residual or inherent jurisdiction to enlarge
time laid down by a statute and therefore the judge’s order extending the
time within which to appeal, several months after the expiry of the
statutory period, was without jurisdiction, was a nullity and would be set
aside.

The running of time and commencement

Once the action has accrued as a general rule time begins to run provided
that there are both competent plaintiff and competent defendant and until
when the suit is filed and not when the service is effected. Exceptionally
this is not the case where the action is based upon;

i) The fraud of the defendant

ii) Any fact relevant to the plaintiff’s right of action has been
deliberately concealed from him by the defendant
iii) The action is for relief from consequences of a mistake

The running of time is postponed until the plaintiff discovered the fraud,
concealment or mistake or could, with reasonable diligence, have
discovered it.

If on the date when the right of action accrued, the person to whom it
accrued was under disability, action may be brought at any time before
the expiration of six years from the date when he ceased to be under
disability or died.

Computation of time

As a general principle the courts will disregard parts of a day in calculating

the expiry of the limitation period. The day of the accident is to be
excluded from the computation of the limitation period as provided under
the Interpretation Act.

Section 34 provides;

(1) In computing time for the purpose of any Act—

(a) a period of days from the happening of an event or the doing of any
act of thing shall be deemed to be exclusive of the day in which the event
happens or the act or thing is done;
(b) if the last day of the period is a Sunday or a public holiday (which days
are in this section referred to as “excluded days”), the period shall include
the next following day, not being an excluded day;
(c) where any act or proceeding is directed or allowed to be done or taken
on a certain day, then if that day happens to be an excluded day, the act
or proceeding shall be considered as done or taken in due time if it is
done or taken on the next day afterwards, not being an excluded day; or
(d) where any act or proceeding is directed or allowed to be done or taken
within any time not exceeding six days, excluded days shall not be
reckoned in the computation of time.

The general effect of limitation is that the remedy is barred, but the
plaintiff’s right is not extinguished.

Defenses to limitation.

Where the suit is instituted after expiration of the period

prescribed by the law of limitation, the plaint shall show the
grounds upon which exemption from the law is claimed-O.7 r 6
CPR. The provision of this rule is mandatory and ignorance could not be a
disability for purposes of limitation.

Sec. 21 provides for extension of limitation period in case of

disability. Under section 1 (3) a person shall be deemed to be under a
disability while he or she is an infant or of unsound mind.
Infancy-This is another word for minor. Art. 257 (c) a child is a person
under 18 yrs.

Unsound Mind-A person is of unsound mind if he is a person who by

reason of mental disorder is incapable of managing and administering his
property and affairs.

In the case of M&D Timber Merchant and Transporters Ltd v Hwan

Sung Ltd (MISCELLANEOUS APPLICATION NO. 0796 OF 2015) Court
held that for a plaintiff to benefit from the exemption from the law of
limitation, he or she must plead grounds showing his or her disability to
file the suit within the time prescribed by the law. The disability must be a
legal disability in a sense that Section 1(3) of the Limitation Act provides
that a person shall be deemed to be under a disability while he or she is
an infant or of unsound mind. In my view, since the provision is very clear
and specific, no other basis of disability calls for recognition under the law.
However, in the case of Fred Mungecha vs. A.G [1981] HCB 34 Court held
that imprisonment is a disability

Disability does not does not prevent the person affected from bringing or
defending an action. Although he may not do so without a next friend or
guardian ad litem-O. 33 r 1 & 3 CPR. When a right of action accrued for
which a period of limitation is prescribed, the person to whom it accrued
was under disability the action may be brought at any time before the
expiration of six years from the date when the person ceased to be under
disability or died-s.21(1) limitation Act. In case of negligence, nuisance or
breach of duty where damages are claimed the period of bringing action
under disability shall be three years-s.21 (2)(a) limitation Act.

i) Acknowledgement and part payment

Acknowledgement by the defendant to the plaintiff’s rights or the

defendant making a part payment will revive the cause of action-s.22
limitation Act. The law provides that any such acknowledgement shall
be in writing and signed by the person making the acknowledgement-
s.23 limitation Act. Part payment means payment in respect of the
debt.

ii) Fraud and mistake.

Sec. 25 of the limitation Act provides that where, in the case of any action
for which a period of limitation is prescribed by the Act, either—
(a) the action is based upon the fraud of the defendant or his or her agent
or of any person through whom he or she claims or his or her agent;
(b) the right of action is concealed by the fraud of any such person as is
mentioned in paragraph (a) of this section; or
(c) the action is for relief from the consequences of a mistake, the period
of limitation shall not begin to run until the plaintiff has discovered the
fraud or the mistake, or could with reasonable diligence have discovered
it; but nothing in this section shall enable any action to be brought to
recover, or enforce any charge against, or set aside any transaction
affecting, any property which—
(d) in the case of fraud, has been purchased for valuable consideration by
a person who was not a party to the fraud and did not at the time of the
purchase know or have reason to believe that any fraud had been
committed; or
(e) in the case of mistake, has been purchased for valuable consideration,
subsequently to the transaction in which the mistake was made, by a
person who did not know or have reason
to believe that the mistake had been made.

In the case of Hermezdas Mulindwa and Another v Stanbic Bank (U)

Ltd HCCS-0426-2004 the issue was whether the plaintiffs’ suit was time
barred. Justice Lameck N. Mukasa held that it is trite that parties are
bound by their pleadings. By their pleadings the plaintiffs appear to
concede that the period within which to file the suit had expired. That in
Uganda Revenue Authority Vs Uganda Consolidated Properties Ltd (1997 –
2001) UCL 149 Justice Twinomujuni JA stated. “Time limits set by statutes
are matters of substantive law and not mere technicalities and must be
strictly complied with” That the period of limitation where imposed begins
to run from the date on which the cause of action accrues.
See Eridadi Otabong Waimo Vs Attorney General SCCA No 6 of 1990
(1992) V KALR 1. Order 7 rule 11 (d) of the Civil Procedure Rules provides
that a plaint shall be rejected where the suit appears from the statement
in the plaint to be barred by any law. The claim in the instant suit appears
time barred by section 3 (I) (a) of the Limitation Act. In Francis Nansio
Michael Vs NuwaWalakira (1993) VI KALR 14 the Supreme Court held that
clearly if the action is time barred then that was the end of it.
However, section 25 of the Limitation Act provides for postponement of
the limitation period. It states: “Where in the case of any action for which
a period of limitation is prescribed by this Act, either –--- (a) the action is
based upon the fraud of the defendant or his or her agent or of any
person through whom he or she claims or his or her agent. (b) the right
of action is concealed by the fraud of any such persons as mentioned in
paragraph (a) of this section, or (c) the action is for relief from the
consequences of a mistake; the period of limitation shall not begin to run
until the plaintiff has discovered the fraud or the mistake or could with
reasonable diligence have discovered it, but nothing in this section shall
enable any action to be brought to recover or enforce any charge against
or set aside any transaction affecting, any property which –--- (d) in
the case of fraud, has be purchased for valuable consideration by a
person who was not a party to the fraud and did not at the time of the
purchase know or have reason to believe that any fraud had been
committed; or (e) in the case of a mistake has been purchased for
valuable consideration, subsequently to the transaction in which the
mistake was made, by a person who did not know or have a reason to
believe that the mistake had been made.”
Court further held that where a plaintiff wishes to rely on any exemption
to the periods of limitation it must be specifically stated in the pleadings.
If it is not the plaint should be rejected. SeeIga Vs Makerere University
(1972) EA 65. That in the instant case the plaintiffs, in paragraph 6 of the
plaint, plead an exemption by mistake which they content were able to
discover on or about the 26th day of May 2003. Alternatively,
in paragraph 8 they plead concealment by fraud until their discovery of
the UCB Board of Directors Resolution on 26 th May 2003. They therefore
content that the date of accrual of the cause of action was by the
provisions of sections 25 of the Limitation Act postponed to the date of
discovery of the mistake or the fraudulent concealment on 26the May
2003. That Section 25 (c) extends the limitation period where the plaintiffs
action is for relief from the consequences of a mistake. Time begins
to run from the time when the plaintiff discovered the mistake or could
with reasonable diligence have discovered the mistake.
That the issue was whether the plaintiffs’ action in the instant case was
the consequence of the alleged mistake of omitting the long service
award from the compensation package communicated to the Bank staff in
the circular of invitation to apply for early termination of service
That the plaintiffs’ cause of action arose from the mistake of omitting to
include it in the circular. A similar provision was considered in the English
Case of Philips Highs Vs Harper (1954) QB 411 where Pearson J. held that
the section does not apply to the case of a right of action which is
concealed from the plaintiff by mistake. Her Lordship stated at page 119:-
“What is the meaning of provision (c)? The right of action is for relief from
the consequences of a mistake. It seems to me that this wording is
carefully chosen to indicate a class of action where a mistake has been
made and has had certain consequences and the plaintiff is seeking to be
released from those consequences------ probably provision (c ) applies only
where the mistake is an essential ingredient of the cause of action, where
the statement of claim sets out the mistake and its consequences and
prays for relief from the consequences---“
That the plaintiff in the instant case are not seeking to be relieved from
the consequences of the mistake but are seeking to recover monies they
claim to be entitled to which they could not seek within the limitation
period because by the mistakes of the management they were not made
aware of the entitlement. The entitlement was not a consequence of the
mistake. It does not arise from the mistake.

Court further held that the plaintiffs’ claim based on mistake is outside the
scope of the exemption in section 25 (c) of the Limitation Act.
Alternatively the plaintiffs sought to rely on fraudulent concealment of the
Resolution. Court held that the exemption of fraud was taken away by the
provisions of section 25 (d) of the Limitation Act. That defendant had
bought for value the assets and liabilities of UCB. Section 25
postponement of limitation cannot apply against a purchaser for value
without notice of the defect in title or without notice of the fraud. That the
long service award is money which the plaintiff claim they are
entitled to by virtue of the UCB Board of directors Resolution which they
now claim from the defendant. It is thus property. This was a liability
which the defendant had inherited through a purchase for a valuable
consideration. The purchase was sometime in November 2001 long after
the alleged fraudulent concealment or omission in 1996. It is not pleaded
that the defendant was party to the alleged fraudulent concealment or
omission. Further it is not pleaded that at the time of the purchase
the defendant knew or had reason to know of the alleged fraudulent
concealment or omission. Court further held that the plaintiffs have failed
by their pleadings to show that their claim is entitled to postponement of
the limitation period by the provision of section 25 of the Limitation Act
and that the suit was time barred and outside the saving provisions of
section 25 of the Limitations Act.

Sections 19 and 20 provides for Actions in respect of trust property or the

personal estate of deceased persons. In the case of Lukanga & Anor V
Kanakulya HCCS No. 42 OF 2008 Court held that section 25 of the
Succession Act vests all property in an intestate upon the personal
representative of the deceased upon trust for those persons entitled to
the property. That the defendant applied for and was granted Letters of
Administration and by operation of Section 25 of the succession Act, all
the property of the deceased devolved upon the said Defendant in trust
for the beneficiaries and the said Defendant should accordingly be held to
account by any beneficiary of the deceased. Court further held that any
beneficiary claiming interest in the estate of the deceased should do so
within the period prescribed by law i.e the Limitation Act Cap 80. Section
20 of the Limitation Act provides:- “SubjecttoSection19(1)no action in
respect of any claim to the personal estate of a deceased person
or any share or interest in such estate whether under a Will or on
Intestacy shall be brought after the expiration of twelve years
from the date when the right to receive the share or interest
accrued ……………………………………. “(emphasis mine)”.That the
expression “subject to…” highlighted above in Section 20 has the effect
of bringing Section 19 (1) into play. The subsection provides:-
(1) No period of limitation prescribed by this Act shall
apply to an action by a beneficiary under trust being an
action.

(a) In respect of any fraud or fraudulent breach of

trust to which the trustee was a party or privy or

(b) To recover from the trustee trust property or the

proceeds of the trust property in the possession of the
trustee or previously received by the trustee and
converted to his or her use “(emphasis mine). That
whereas generally, no claim to any share or interest in an
estate can be brought by a beneficiary after the expiry of 12
years, that legal bar is qualified where the beneficiary claims
 fraud or fraudulent breach of trust by the trustee provided for
in Section 25 of the Succession Act. That this in effect
removes this case from the application of Section 20 of the
Limitation Act and places it under the vagaries of section 19
(1) of the Act.

An action arising from death of any person through negligence shall be

commenced within twelve calendar months after death of such deceased
person-s.5 & 6 (3) law reform (miscellaneous provisions) Act Cap. 79.

The limitation Act provides for the following

1. Breach of Contract-6 years from date of breach

2. Tors-6 years
3. Judgement-12 years
4. Arrear of interest on judgement-6 years
5. Conversion and detention of goods-6 years
6. Recovery of land-12 years
7. Mortgage-12 years
8. Foreclosure and recovery of loans and mortgage-12 years
9. Fraudulent breach of trust-No limitation
10. Fatal accident actions-12 months
11. Action claiming personal estate of a deceased person-12 years
12. Claims for equitable relief-No limitation
Limitation Against Government and Scheduled Corporations

S.3 (1) of the civil procedure and limitation (Miscellaneous Provisions) Act
no action founded on tort shall be brought against the government, a local
authority and a scheduled corporation after expiration of two years from
the date on which the cause of action arose- No action founded on
contract shall be brought against the government or a local authority after
expiration of three years from the date on which the cause of action
arose.

No action founded on contract shall be brought against the government or

local authority after expiration of three years from the date on which the
cause of action arose-s.3 (2) of the civil procedure and limitation
(Miscellaneous Provisions) Act
In the case of Sam Kirembwe v Attorney General (Civil Suit No.73
Of 2001) Civil Suit No.73 Of 2001 the learned State Attorney raised
preliminary point of law that the suit is barred by Statute in that the action
was brought beyond 3 years from the time the cause of action arose
contrary to S. 2(2) of the Civil Procedure (Limitation Act) because the
cause of action arose in 1988 but the suit was on 30/01/2001 more than
ten years later. Court held that under section 3(2) of the civil Procedure
and limitation (Miscellaneous Provisions) Act no action founded on
contract shall be brought against the Government or Local Authority after
the expiration of three years from the date on which the cause of action
arose. Order 7 rule (1) (d) of the C.P.R provides that in an action barred by
law the plaint must be rejected. Plaints have invariably been rejected
under the above provisions. See Iga vs. Makerere University (Supra) and
Arua Motor Dealers vs. Attorney general HCCS 1451/1986 Reported in
[1997] VKLR 32 where it was held actions against Government brought in
contract after 3 years from the accrual of the cause of action are barred
by the provisions of the Civil Procedure and the provisions of the Civil
Procedure and Limitation (Miscellaneous Provisions) Act. That under
Section 5 of the Civil Procedure and Limitation (Miscellaneous Provisions)
Act when the period within which a person has expired when such person
is under a disability, he may bring the action within 12 months from the
time such disability ceases. That the instant suit is barred by S. 3(2) of the
Civil Procedure and Limitation (Miscellaneous Provisions) Act.
Similar principles on disability are applicable to government, scheduled
corporations and local authorities within 12 months when the persons
disability ceases-s.5

Also limitation is postponed in cases of fraud or mistake-section 6

In the case of Eridad Otabong versus Attorney General Civil Appeal

Number 6 of 1990 the facts were that the appellant had sued the
Defendant for false arrest and unlawful detention. The suit was filed after
12 months of the date of arrest and at the hearing an objection that the
suit was time barred was upheld. The court approved the passage
from Clark and Lind Sell on Tort 13th edition paragraph 612 that:
"Where there is a continuing nuisance or a continuing trespass, every
fresh continuance is a fresh cause of action and therefore an injured party
who sues after the cessation of the wrong may recover for such portions
of it as lie within the period limited." Oder JSC held regarding the effect of
limitation on unlawful detention or false imprisonment that: "Regarding
the effect of limitation on unlawful detention or false imprisonment
authoritative court decisions in this jurisdiction appear to be lacking, but
the sum of text book statements and superior court decisions is quite
clear. It is that such a wrong is necessarily a continuing tort so that the
cause of action accrues continuously throughout its duration."

Pre-Entry Exam 2014/2015

Qn. 42 When is a suit said to be time barred?
 TOPIC XII

INTERROGATORIES, DISCOVERY AND INSPECTION

 INTERROGATORIES
 Section 22 of the civil procedure Act provides for the power to
order discovery and the like. Subject to such conditions and
limitations as may be prescribed, the court may, at any time, either
of its own motion or on the application of any party (a) make such
orders as may be necessary or reasonable in all matters relating to
the delivery and answering of interrogatories, the admission of
documents and facts and the discovery, inspection, production,
impounding and return of documents or other material objects
producible as evidence; (b) issue summonses to persons whose
attendance is required either to give evidence or to produce
documents or such other objects as aforesaid; (c) order any fact to
be proved by affidavit.

 Section 22 of the Government Proceedings Act provides that

subject to and in accordance with rules of court—(a) in any civil
proceedings in the High Court or a magistrate’s court to which the
Government is a party, the Government may be required by the
court to make discovery of documents and produce documents for
inspection; and (b) in any such proceedings as are mentioned in
paragraph (a) of this subsection, the Government may be required
 by the court to answer interrogatories. (2) Notwithstanding
subsection (1), the section shall be without prejudice to any
enactment or rule of law which authorises or requires the
withholding of any document or the refusal to answer any question
on the ground that the disclosures of the document or the
answering of the question would be injurious to the public interest.
(3) Any order of the court under the powers conferred by subsection
(1)(b) shall direct by what officer of the Government the
interrogatories are to be answered. (4) Without prejudice to
subsection (2), any rules of court made for the purposes of this
section shall be such as to secure that the existence of a document
is not disclosed if, in the opinion of a Minister, it would be injurious
to the public interest to disclose the existence of the document.

 Interrogatories are questions addressed to an opposing party in the

action, aimed at discovery of facts. The power of court to administer
interrogatories is derived from section 22 of the civil procedure Act
and section 22 of the Government Proceedings Act. The essential
requirements for proper interrogatories are that they should;
i) Relate to a matter in question between the parties; and
ii) Be necessary either for disposing fairly of the matter or for
saving costs

 It is entirely in the discretion of the judge as to whether an

interrogatory will be allowed or not. Order 10 rule 1 of the civil
procedure rule provides that in any suit the plaintiff or defendant
may apply to court within twenty one days from the date of the last
reply or rejoinder referred to in order 8 r 18(5) of the rules for leave
to deliver interrogatories and discovery in writing for the
examination of the opposite parties, or any one or more of those
parties, and those interrogatories when delivered shall have a note
at the foot of them stating which of the interrogatories each of the
person is required to answer.

 Any order of court to issue interrogatories shall direct by what

officer of the Government the interrogatories are to be answered-
section 22(3) Government Proceedings Act.
 The application for leave to serve interrogatories should be made at
a reasonable time before the trial is likely to come on.
Interrogatories shall be in the form 2 of appendix B of the civil
procedure rules with such variations as circumstances may require-
O.10 r 4 Cpr.

 In the case of Stop and See (U) Ltd v Tropical Africa Bank Ltd
(MISC. APPLICATION NO 333 OF 2010) Madrama J (as by then)
held that under order 10 (1) the defendant or plaintiff may apply to
court within twenty one days from the
date of the last reply or rejoinder for leave to deliver interrogatories
 and discoveries in writing for the examination of the opposite
parties. Interrogatories shall be answered by affidavit within ten
days. Any application to strike out interrogatories on the ground of
being scandalous or irrelevant, or not exhibited bona fide for the
purpose of the suit or lack of materiality to the suit may be made
within seven days after service of the interrogatories. Under rule 11
of order 10, where a person omits to answer or answers
insufficiently, the party interrogating may apply to court to make
him answer or for a further answer by affidavit or by viva voce
examination. A party may also apply for discovery and inspection of
documents. A party may give notice to another to produce for
inspection any documents referred to in his or her pleadings. The
party on whom notice is given shall deliver within 10 days give
notice specifying the time and place for the inspection excepting
those that the party objects to produce.
 In the case of Kapiriri v International Investments Ltd & 5 Ors
(MISC. APPLICATION NO. 170 OF 2012) Court held that the suit
was originally based on alleged trespass by the 1 st and
2nd Defendants fraudulent sale by the 3 rd to 6th Defendants. That the
Written statement of defence filed at the time in paragraph 16
therein categorically stated that the 1 st Defendant was a bona fide
purchaser for value and had the necessary documentary evidence
of ownership. That at that time, the Plaintiffs should have invoked
the provisions of Order 10 CPR to seek clarifications and answers by
way of interrogatories to clear the issues raised in paragraph 16 of
the said defence, instead of jumping into the lake for a fishing
expedition by going into the hearing of the suit.
 Guidelines
 There are no rigid rules for determining when leave will or will not
be granted to administer interrogatories, much depend on the
circumstances of the individual case. However there are a number
of guidelines which have been developed to be followed. These
guidelines may be categorized under the following heads;
i) Relevance
 Interrogatories must relate to any matter in question between the
parties. In the case of Marriot v Chamberlain [1886] 17 QBD
154 at 163 Lord Esher MR attempted to explain the meaning of
relevance in this context; ‘‘The right to interrogate is confined to
facts directly in issue, but extends to any facts the existence or
nonexistence of which is relevant to the existence or nonexistence
of facts directly in issue.’’
 There are three important limits to the general rule regarding
relevance;
a) Interrogatories relevant only to the credulity of witness will be
disallowed
b) Interrogatories may be sought only as to matters relevant to the
present action, questions that are relevant not to the present action
but other future action should be disallowed
c) ‘Fishing’ interrogatories are not allowed. Fishing was defined by
Lord Esher MR in Hennesey v Wright (number 2) [1888] 24
QBD 445 at 448 thus; ‘‘The moment it appears that questions are
asked and answers insisted upon in order to enable the party to see
if he can find a case, either complaint or defense of which at
present he knows nothing, and which will be a different case from
that which he knows nothing, and which will be a different case
from which he now makes, the rule against fishing applies.’’

ii) Facts
Interrogatories are for facts, so they will be disallowed;
a) Where they call upon an interrogated party to express opinion on
something
b) Where they are aimed at discovering the evidence available to
the other side; they are not intended to provide a substitute of
evidence
c) Where they are aimed at discovering the contents of an existing
document or as to what documents a party has or had in his
possession or control

iii) Necessity
Interrogatories may be administered only where they are
necessary for disposing fairly of the action or for saving costs.
Interrogatories will not normally be necessary for saving costs or
for disposing fairly of the action if witnesses are likely to be
called at trial to give evidence on the same matters.

 Examples of allowable interrogatories.

There is no list of allowable or prohibited interrogatories.
However, the following are some of the examples of
interrogatories which have been allowed;
a) Asking for the name of the publisher of a defendant
newspaper in a libel action
b) Asking for figure of the circulation of a newspaper in a libel
action, where quantum of damages was in issue
c) Asking whether (in an action for breach of copy right) the
products in question had been copied from the plaintiff
d) Asking whether the defendant was in possession of the vehicle
at the time when it was involved in an accident
e) Asking in order to prove the handwriting of a disputed letter,
whether the interrogated party was the writer of another letter
f) Asking for the noise level in a factory, in an industrial deafness
case
g) Asking whether contractual documents had been signed by
interrogated party’s authorized agent.
 Answers
 O.10 r 8 of the civil procedure rules interrogatories are answered by
affidavit and are binding on the interrogated party in the sense that
an answer is intended to be an admission by the party who makes
 it, or at any rate a statement by which in ordinary circumstances he
will be bound. In most cases answers may be a simple ‘Yes’ or ‘No’
but where explanations are included, they must be unambiguous,
precise and reasonable.
 In the case of Kyenda v SBL International Holdings N. Ltd
(MISC. APPLICATION NO. 052 OF 2013 was an application
brought under section 22 and 98 CPA and Order 10 Rules 1, 2, 4, 6,
8 and 24, seeking orders that Interrogatories for examination of the
Respondent be delivered to the said Respondent. The application
was premised on the allegation that the Respondent in the written
statement of defence in the head suit merely denied all averments
in the Plaint and that it was necessary to establish the facts in the
suit to save Court’s time when the trial commences. Justice
Namundi held that Order 10 CPR regulates the use of Interrogatories
in civil proceedings. That Under Order X r.1 (b) thereof, the Court
will only allow those interrogatories which relate to the matters in
question or deemed relevant to the matters in question. That under
rule 7 thereof the Court will not allow those interrogatories that are
vexatious, unreasonable or that they are proflix, oppressive or
unnecessary. Court cited National Social Security Fund Board
of Trustee Vrs. Kario Farms Ltd &Others (2006) EA 240, that
it was observed that in the process of presenting Interrogatories,
the party interrogating may put questions for the purpose of
extracting from his opponent information as to the facts material to
the questions between them when he has to prove on any issue
raised or for purposes of securing admissions as to those facts in
order that the expense and delay may be saved. That the authority
above relied on Omar Vrs. Gordhanbhai& Another (1974) EA
518. Court further held that in deciding whether the order
should be made, the Court is to be guided by: 1Whether the
Interrogatories are necessary for disposing of the suit fairly or 2 For
saving costs Ref: Sebastian R. D’Souza & Others Vrs. Charles
Clemente Ferrao (1959) EA 1000. Court further held that the
interrogatories in respect of the audit can only be carried out after
the Court orders so in its Judgment at the end of the trial, that
particular prayer cannot therefore be said to be necessary for the
disposal of the suit. That the case is about whether the Defendant is
liable to pay taxes/revenues to the Plaintiff. If this liability is
determined or the issue is resolved in favour of the Plaintiff then the
necessary audits would be carried out once the Court orders so.
Court further held that the prayers in the Plaint are for declarations
which essentially have among others the effect that the Defendant
is liable to pay local Revenues for its quarry’s activities. That the
issue that the interrogatories are not addressed to particular
individuals has been answered in Stanfield Properties Ltd. Vrs.
National West Minister Bank (1983)2 ALL ER 249where it was
held that a limited liability company in answering interrogatories
must procure the making of proper answers from the company’s
officers servant or agents….. It is not what is known to the individual
 but what is known to the company. That the said interrogatories are
correctly addressed to the Defendant/Respondent who will take
responsibility to procure answers from its servants, employees or
agents. That the Applicant has made out justification for an order to
serve interrogatories to the Defendant and that the Defendant
answers the interrogatories allowed i.e. 1-8 and 30-48 within the
time limit prescribed by Order 10 CPR.

 DISCOVERY OF DOCUMENTS
 Discovery is the procedure whereby one party to an action must
disclose to the other party the existence of all documents which are
or have been in possession and which are material in the action.
Discovery refers to the disclosure and inspection of documents as
opposed to facts. Documents include originals and copies of original
documents, tape recordings and computer disk.
 The power of court to order for discovery is derived from section 22
of the civil procedure Act and section 22 of the Government
Proceedings Act. O.10 r 12 of the civil procedure rules provides for
application for discovery of documents. Any party may, without
filing any affidavit, apply to the court for an order directing any
other party to the suit to make discovery on oath of the documents,
which are or have been in his or her possession or power, relating to
any matter in question in the suit. On the hearing of the application
the court may either refuse or adjourn the hearing, if satisfied that
the discovery is not necessary, or not necessary at that stage of the
suit, or make such order, either generally or limited to certain
classes of documents, as may, in its discretion, be thought fit;
except that discovery shall not be ordered when and so far as the
court shall be of opinion that it is not necessary either for disposing
fairly of the suit or for saving costs.
 In the case of Tallikwa v Commissioner Land Registration
(Registrar of Titles Wakiso) (MISC. APPLICATION NO. 1274
OF 2013)Court held that Under Order 10 Rule 1, any party may
apply to court for an order directing the other party in the suit to
make discovery on oath of the documents relating to any matter in
question in the suit. That upon reading Order 10 Rule 2, in order to
be entitled to an order of discovery, the applicant should fulfill the
following conditions:- 1. The document being sought should be, or
has previously been in possession or power of the other party. 2.The
party stated to be holding the document(s) should have been
previously requested to avail them, but she/he declined to release
them to the applicant. 3. The production of such documents should
be necessary for the court to achieve a fair and final determination
of the suit or for saving costs.
 In the case of Wanyama v Hisa & Anor (ELECTION PETITION
NO. 0019 OF 2016) Court held that discovery proceedings are
generally provided for under Order 10 CPR. That both rule 12 and 15
thereof would be applicable to a party that seek discovery against
another. That rule 12 [1] appears to be a rule of wider application
 for any party who seeks the discovery of any document, the
restrictions of allowing the prayer are left to the court’s discretion in
rule 12[2] and the parameters that the court may consider are
given. On the other hand, rule 15 appears to permit the party
seeking discovery to do so against the other party in whose
pleadings certain documents are mentioned. It is a more restrictive
rule.
 In the case of Stop and See (U) Ltd v Tropical Africa Bank Ltd
(MISC. APPLICATION NO 333 OF 2010) Madrama J (as by then)
held that under order 10 (1) the defendant or plaintiff may apply to
court within twenty-one days from the
date of the last reply or rejoinder for leave to deliver interrogatories
and discoveries in writing for the examination of the opposite
parties.
 The purpose of discovery is to ensure that issues which are to be
decided by the trial judge are clearly defined as possible and to
ensure that the trial takes place within estimated time set out in the
order for directions, and discovery must be completed before a case
is set down for hearing.
 In the case of Mutesi v Attorney General MISCELLANEOUS
APPLICATION No. 0912 OF 2016) Court held that Discovery is a
category of procedural devices employed by a party to a civil or
criminal action, prior to trial, to require the adverse party to disclose
information that is essential for the preparation of the requesting
party's case and which the other party alone knows or possesses. It
is a device used to narrow the issues in a law suit or obtain evidence
not readily accessible to the applicant for use at trial and/or
ascertain the existence of information that may be introduced as
evidence at trial provided it is not protected by privilege. That Public
policy considers it desirable to give litigants access to all material
facts not protected by privilege to facilitate the speedy and fair
administration of Justice. Discovery is contingent upon a party's
reasonable belief that he or she has a good cause of action or
defence. See: Karuhanga & Anor Vs Attorney General & 2 Ors MISC.
CAUSE NO. 0060 OF 2015, That in view of the above clear objects of
discovery, a party seeking for a production of documents from the
other party must be before the Court to which the application is
made and the suit must have pending issues for determination by
that court. The document sought must be documents relevant to
the determination of the pending suit before Court. This position is
born out in the Law under the provisions of Order 12 rule 12 (1) of
the Civil Procedure Rules and Order 10 rule 14 of the Civil Procedure
Rules. That It is trite law that court will deny discovery if the party is
using it as a fishing expedition to ascertain information for the
purpose of starting an action or developing a defence. A court is
responsible for protecting against the unreasonable investigation
into a party’s affairs and must deny discovery if it is intended to
annoy, embarrass, oppress or injure the parties or the witnesses
who will be subjected to it. A court will stop this discovery when
 used in bad faith and if the information to be produced is not
protected by privilege. On what amounts to a fishing expedition the
case of Gale Vs Denman Picture Houses Ltd [1930] KB 588, 590 per
Lord, Scrutton L. J relied upon by the respondent wherein he
held inter alia thus: “A plaintiff who issues a writ must be taken to
know what his case is. If he merely issues a writ on the chance of
making a case he is issuing what used to be called a “Fishing Bill” to
try to find out whether he has a case or not. That kind of proceeding
is not to be encouraged. For a plaintiff after issuing his writ but
before delivering his statement of claim to say, “show me the
documents which may be relevant so that I may see whether I have
a case or not” is most undesirable proceeding.”

 Document must be relevant.

 Documents which must be disclosed are those relating to any
matter between the parties in the action. In the leading case of
Campagnie Financiere vs Peruvian Guano Company [1882]
11 QBD 55 at 63 Brett L.J gave a very wide interpretation of this
phrase. He said; ‘…it seems to me that every document relates to
the matter in question in the action, which not only would be
evidence upon any issue, but which it is reasonable to suppose,
contain information which may not which must either directly or
indirectly because, as it seems to me, a document can properly be
said to contain information which may enable the party requiring
the affidavit either to advance his own case or to damage the case
of his adversary, if it is a document which may fairly lead him to
train of inquiry which may have either of those two consequences.’
 Although discovery may be general, it must not be used as a fishing
expedition or in any improper way. In the case of Forester vs
Bristish Railways Board 1996 The Times, 8 April, the action
related to a fatal accident on a railway. The plaintiff sought
discovery relating to a wide range of aspects of train operations
including reports of accidents which had occurred as a result of
doors opening on moving trains. It was held that the document
required to be disclosed was too wide and clearly constituted a
fishing expedition.

 The courts discourage improper use of discovered matters.

Improper use include using discovered materials to start a new
cause of action. Usually a party seeking discovery will give an
undertaking not to use the discovered material for any purpose
other than in furtherance of the present case.

 Privileged Documents
 A party making discovery may object to producing privileged
document for inspection. Where privilege is claimed to any
document, the court may itself inspect it in order to decide whether
 the claim is valid. The commonest types of privileged documents
are:
a) Communication between Counsel / Advocate and Client

Any document written by a counsel and addressed to his client (and vice
versa) is privileged, provided it is intended to be confidential and it is
within the object of obtain in or giving legal advice or assistance.

b) Documents prepared with a view to litigation

All documents which are prepared for the paurposes of assisting party or
his legal advisers on actual or anticipated litigation are privileged,
whether they relate to obtaining the necessary evidence. Examples
include expert reports, pleadings etc

c) Privileges against self-incrimination

A party has a right to refuse to answer questions or produce documents

tending to show that he has been guilty of offence or answers to which
might expose him or her to any penalty, which is reasonably likely to be
sought.

d) Without prejudice communication

Communications between the parties or their Advocate marked ‘Without

Prejudice’ whether litigation was current or not will be privileged and may
not be put in evidence unless both parties consent.

 In the case of Kagyo Golola v Orient Bank Ltd (MISC.

APPLICATION NO. 150 OF 2013) [2013] UGHCCD 115 Court
held that an applications for discovery of documents are governed
by O. 10 CPR. Under O.10 r 12 CPR it is provided that:- “1. Any party
may, without filing any affidavit, apply to court for an order
directing any other party to the suit to make discovery on oath of
the documents which are or have been in his or her possession or
power relating to any matter in question in the suit. Upon hearing
the application court may either refuse or adjourn the suit if
satisfied that the discovery is not necessary or not necessary at that
stage of the suit”. That the applicant must therefore satisfy court
that it is necessary to make a discovery order at the time of
application. That discovery is the process used by parties to a law
suit to exchange information about the case and obtain evidence to
support their claims. That Court directs the inquiry but this has to be
in non privileged arrears that are relevant to the claim or defence.
The bottom line, however, is full disclosure necessary for a speedy
and fair trial because each party is entitled to know what documents
exist for potential use at the trial. Court further held that an
omnibus request for “all documents related to the loan” without the
consent of the respondent’s client will be a breach of confidentiality
based on the Banker/Customer relationship. This is a valid exception
to the grant of an order for discovery of documents. This request
amounts to a “fishing expedition” which is prejudicial to the
 respondent’s trade. Secondly, the applicant has not made any reply
to the written statement of defence which would mark the close of
pleadings. Thirdly, discovery is not necessary at this stage of the
suit because all documents relevant to the determination of the suit
will be exhibited during scheduling conference. Mandatory
scheduling was introduced to ensure that issues are narrowed down
before trial and possibilities of settlement explained and to avoid
delay in trial of cases through interlocutory applications.
Considering the application as a whole and the pleadings in the
head suit I am not convinced that this is a proper application in
which the orders sought should be granted.
 To use Order 10 r 14 of the civil procedure rules there must be
proceedings pending and also court is empowered to order the
production of documents. This order is narrower than rule 12 and 13
which concerns discovery before hearing commences.
 The purpose of discovery is to ensure that issues which are to be
decided by the trial judge are clearly defined as possible, and to
ensure that the trial takes place within estimated time set out in the
order for direction, discovery must be completed before the case is
set down for trial.

 INSPECTION
 If any document is referred to in a party’s pleading or affidavit, his
opponent may serve a notice on him requiring him to produce that
document for inspection-O.10 r 15CPR. Within ten days of receiving
such notice, the party must serve a notice stating the time within
three days of receipt of the notice and a place where inspection may
take place-O.10 r 17 CPR. If objection is taken to the production of
any document, the notice must specify the document and state the
grounds of the objection.
 This procedure may be useful where, for example a party’s
pleadings refers to an agreement in writing dated. Since it gives the
opportunity for inspection of the document without waiting for
formal discovery, which takes place after a close of pleadings. Thus
the defendant may inspect a document referred to in the plaint
before drafts his defense.
 If a notice served is not complied with, the applicant may move
court to make an order of inspection-O.10 r 18CPR. An order for
inspection may be made before filing a defense.
 Inspection thus entails both:
a) The examination of documents on the list or on the pleadings or
affidavits; and
b) The taking away of copies.
 NON COMPLIANCE WITH COURT’S ORDER
 If the defendant does not comply with an order for discovery, the
court may strike out the defense and enter judgment for the
plaintiff; and if a plaintiff does not comply with an order, the court
may dismiss the action-O.10 r 21CPR.
 In the case of Said Tibezarwa vs UCB [1997-2008] UCLR 383
/HCCS No. 13/1996 during hearing of the suit, the plaintiff applied
for an order requiring the Bank to produce for his inspection
banker’s books and other documents pertaining to his account
which application was never objected to by the defendant counsel,
and accordingly granted to furnish the plaintiff with its banker’s
book in respect of Account number 00770 of the UCB Gaba Branch
and to furnish Plaintiff with copies of verified entries of the above
account in the UCB’s ledgers. At the next hearing the learned
counsel for the Plaintiff applied for striking out the defendant written
statement of defense pursuant to O.10 r 21CPR on ground of failure
by UCB to obey court orders to produce banker’s books /
documents. The defendant counsel opposed the application on
ground that the required documents are simply nonexistent at UCB
having either been stolen, or lost or wilfully destroyed. Justice
Ogoola held that if it was true that the documents are now
nonexistent through being lost or stolen or destroyed then the
development must be relatively recent. That in particular it must be
subsequent to the court order. Further held that indeed the Bank’s
documents existed and were in safe custody at all material times
but for reasons best known to itself the bank chose not to produce
them as ordered by court. That it was precisely this kind of
disobedience that O.10 r 21CPR was designed to remedy. Court
further held that had no hesitation in granting the application to
strike out a Witten statement of defense under o. 10 r 24CPR on
ground of the defendant’s non compliance and disobedience of the
court’s of the court’s order for production of banker’s books. That
pursuant to O.21 r 21CPR the effect of striking out of a defendant’s
defense is to place the defendant in the same position as if he had
not defended. That in light of section 101 (now 98) CPA enabling
court to make such orders as may be necessary for the ends of
justice, judgment was entered for the plaintiff.

Pre-Entry Exam 2016/2017

Qn. 2 What is the usefulness of discovery in civil proceedings?