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ISLAMIC UNIVERSITY IN UGANDA

FACULTY OF LAW

CIVIL PROCEDURE II

LL.B 1V 2018/2019

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COURSE OUTLINE

GENERAL OUTLINE

This course outline is an advanced one and is designed to impart to law

students the practice and modalities of prosecuting or defending a civil
action from the time one thinks to go to court through to the final
judgment and the process of execution. It is a continuation of the course
outline covered in the 1st semester, and in some instances, there are
overlapping principles. The course extends to conduct of civil
proceedings, the process of trial right from scheduling conference to
conclusion of the trial. Other aspects covered include termination of a
suit either by way of entering judgment or dismissals and the relief
available to the respective parties, adjournments and preliminary
objections, res-judicata, among others in terms of procedure, practice
and legal consequences. Specific aspects like election petitions and
constitutional petitions may also covered.

Further, under consideration are interlocutory remedies like temporary

injunctions, interim orders, and attachment before judgment and
security for costs. It also examines the corrective remedies, including the
slip rule, judicial review, appeals right from the Local Council Courts up
to the Supreme Court, review and revision as well as references and case
stated procedures. The course is intended to enable students understand
general ideas and practice of civil litigation and remedies available at law
to aggrieved persons. Civil Procedures are there to guide the parties in
their endeavours to solve their civil disputes.

In view of the modern trend that going to court should be a matter of last
resort, focus is had to possibilities of solving dispute out of court, which
should be fully explored before an individual decides to institute his case
in a court of law or even in the course of proceedings. This approach
minimizes costs, saves time, and reduces the stress and anxiety that an
individual experience during court actions. Note however that this
reading guide only serves as a general guide. New cases, articles,
journals books and other materials bearing on the course should be
added by students through own initiatives.

This advanced version of the course outline has been made to cover
recent reported cases.. It has also included the most recent unreported
cases. However students should be aware that this is not self-sufficient
as such they may consult as many cases as possible. The same should
apply to textbooks and other reference materials.

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It is expected that at the end the course, a student will have been well
acquainted with the niceties of civil litigation, and that, looking at the
rigours of civil litigation in general.

READING LIST

LEGISLATION

1. The Constitution of the Republic of Uganda 1995

2. The Judicature Act Cap 13

3. The Civil Procedure Act (Cap 71)

4. The Magistrates Court’s Act. Cap 16 as amended

5. The Government Proceedings Act (Cap 77)

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

7. The Civil Procedure and Limitation (Miscellaneous Provision) Act

(Cap 72)

8. The Supreme Court Rules Directions 1996

9. The Court of Appeal Rules Directions 1996

10. The Judicature Mediation Rules 2013

11. The Judicature (Habeas Corpus) Rules

12. The Judicature (Judicial Review) Rules SI 11 /2009

13. The Civil Procedure Rules SI 71-1

14. The Government Proceedings(Civil Procedure)Rules

15. Practice Direction No.1 of 2002 Judicial Powers of Registrars

(High Court)

16. Practice Direction No.2/2005 Practice Direction on

Presentation of Both Oral & Written Submissions & Arguments in
the Supreme Court

17. Practice Direction No. 1/2004, Judicature (Court of Appeal

(Judicial Powers of Registrars

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18. Others as shall from time to time be referred to in the

course of class discussions.

TEXT BOOKS, ARTICLES AND OTHER REFERENCE MATERIALS

1. SPRY: Civil Procedure in East Africa

2. KIAPI: Practice Manual Series; Civil Procedure

3. CHATALEY & RAO; The Code Civil Procedure

4. LANGN; Civil Procedure and Evidence in EAST Africa.

5. HARWOOD; Odgers on Pleading and Practice

6. BULLEN; & LEAKE: Precedents of Pleadings

7. M. Ssekaana & S. N Ssekaana; Civil Procedure & Practice in

Uganda

8. Trouble Shooting Issues in Civil Matters, Areas to Watch Out for;

A view from the Bar by JMM Mugisha

9. The Role of an Advocate and a Litigant during Scheduling

Conference by JMM Mugisha 2003

COURSE OVER-VIEW AND CONTENT

Over view of Civil Procedure 11, the Scope, the law, procedure and
Practice generally. See the course outline herein above.

TOPIC 1

SUMMARY PROCEDURE AND ALL APPLICATIONS UNDER ORDER 36

CPR

[Including propriety of summary procedure, mode of commencement, leave

to appear and defend, default judgments, setting aside default judgments,
setting aside and stay of execution

Scope of Application of Order 36)

1. Nakabago Co-Op Society –V- Livingstone Changa HCCS No.4/1991

2. Read rule 17 (1) & (2) of the Government Proceedings (Civil Procedure
Rules) on applicability where Government (AG) is involved.

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3. Thomas Irumba V AG [1991] HCB 90;

4. Agasa Maingi V AG HCCS No.0095/2002
5. AG V Seng

The Rationale for Summary Procedure

1. Kyoma Byemaro John versus Agro Finance Trust Ltd HCMA No.
376/2011
2. Sembule Investment Ltd versus Uganda Baati Limited HCMA No.
664/2009
3. Zola & Anor. Versus Rallis Brothers Ltd [1969] EA 691
4. Post Bank (U) Ltd vs. Ssozi SCCA No. 8/2015

Nature of claims for which Summary Procedure is Suitable

1. Read order 36 r. 2 (a) & (b)

2. Sterling travel and tour services ltd vs. Millennium Travel & tours
services Ltd; HCMA No. 116 / 2013:
3. George William Semivule vs. Barclays Bank of Uganda Ltd – [
2010] HCB Volume I 82
4. Begumisa George Vs. East African Development Bank HCMA
No.0451/2010
5. Shelter Ltd Vs. Anastazia Nakazi HCMA No. 55/2002

6. U.T.C. –V- Pasture [1954] 21 EACA 163

7. Kasule-V- Kaweesa [1957] EA 611

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

Legal effect and procedure where claim is both liquidated &

liquidated

1. Sterling travel and tour services ltd vs. Millennium Travel & tours
services Ltd; HCMA No. 116 / 2013:
2. Hanani Moezali vs. Moez Ramani HCCS No. 416/2001
3. Dembe Trading Enterprises Ltd V Uganda Confidential Ltd & Anor.
HCCS No.0612 of 2006

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

5. Shelter Ltd Vs. Anastazia Nakazi HCMA No. 55/2002

6. UTC Vs. Count De La Pasture (3) [1954] 21 EACA 163

Default Judgment under O.36

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7. Uganda Telecom Ltd versus Airtel Uganda Ltd HCMA No.30/2011

8. Pinnacle Projects Limited V Business in Motion Consultants Ltd
HCMA No.362/2010.
9. Mugume vs. Akankwasa [2008] HCB 682

10. Craig V Kansen [1943] 1 ALLER 108

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

2005

12. Post Bank (U) Ltd vs. Ssozi SCCA No. 8/2015

Applications for Leave to Appear and Defend

a) Procedure of Application
1. Sterling travel and tour services ltd vs. Millennium Travel & tours
services Ltd; HCMA No. 116 / 2013:
2. Uganda Red Cross vs. Kangaroo (U) Ltd HCMA 919/2014,
3. Mugoya vs. Buyinza HCMA No. 1152/2014
4. Francis W. Bwengye V Haki Bonera HCT-00-CV-CA No.033-2009

5. Ready Agro Suppliers Ltd & Others V UDB HCMA No.0379 Of 2005

6. Southern Investment Ltd vs. Mukabira Foundation Investments

HCMA No. 105 / 2004
7. Zzimwe Hardware and Construction Enter. Ltd V Barclays Bank
(U) Ltd HCT-00-CC-MA-051-2008
8. Acaali Manzi Vs. Nile Bank Ltd [1994] KALR 123

9. UCB –V- Mukoome Agencies [1982] HCB 22

10. Century Enterprises Ltd V Greenland Bank in Liquidation

HCMA No. 916 of 2004

11. Rwabuganda Godfrey vs Bitamisi Numuddu CACA No.

23/2009

b) Forum for filing Application

Pinnacle Projects Limited V Business in Motion Consultants Ltd
HCMA No.362/2010
c) Time for Filing the Application
1. Ready Agro Suppliers Ltd & Others V UDB HCMA No.0379 Of
2005
2. Pinnacle Projects Limited V Business in Motion Consultants Ltd
HCMA No.362/2010

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3. Venture Communications Ltd Vs. Vertex Prudential Commerce

Inc HCMA No.604/2004
4. Zam Zam Noel & Others Vs. Post Bank Ltd HCMA No.530/2008

5. Republic Motors Ltd-V- Atlantic Decorations [1982] HCB 104

d) Applications filed out of time, Consequences and remedy

1. Pinnacle Projects Limited V Business in Motion Consultants Ltd
HCMA No.362/2010
2. Zam Zam Noel & Others Vs. Post Bank Ltd HCMA No.530/2008
3. Venture Communications Ltd Vs. Vertex Prudential Commerce
Inc HCMA No.604/2004

4. Twentsche Overseas Trading Co. Ltd vs. Bombay Garage Ltd

[1958] EA 741

5. UNEB V Mparo General Contractors Ltd CAC Reference No.99 of

2003

6. GW Wanendeya V Stanbic Bank (U) Ltd HCT-00-CC-CS-0486-

2005
7. Magem Enterprises V Uganda Breweries (1992) 5 KALR 109
8. Dr. Ahmed Kisuule versus Greenland Bank in Liquidation HCMA
No. 2/2012.
9. Musa Sbeity & Anor. Versus Akello Joan HCMA No. 385/2013
e) Grounds in Support of Application
1. Broadband company ltd vs. Joram Mugume HCMA No.
363/2013 –
2. Begumisa George Vs. East African Development Bank HCMA
No.0451/2010
3. R.L Jain V Kasozi Michael& Anor HCMA No.585/2007
4. The Jubilee Insurance Co. Ltd Vs. Fifi Transporters HCMA
No.211/2008
5. Photo Focus (U) Ltd V Group Four Security Ltd CA No.30/2000
CA
6. Zzimwe Hardware and Construction Enter. Ltd V Barclays Bank
(U) Ltd HCT-00-CC-MA-051-2008
7. Central Electrical International Ltd Vs. Eastern Builders and
Engineers Ltd HCT-00-CC-MA 0176-2008

8. Management Committee of St Savio Junior School Vs. Mugerwa

Commercial Agency Ltd HCMA No.183/2004

f) Test and threshold

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1. Sterling travel and tour services ltd vs. Millennium Travel & tours
services Ltd; HCMA No. 116 / 2013:
2. Bitagase & Anor Versus Mugambe Kenneth HCMA No. 470/2012
3. Bibangamba vsMungereza HCMA No. 103 / 2012
4. Uganda Micro Enterprises Association Ltd & Anor. V The Micro
Finance Support Center HCMA 125 of 2005 HCCS No. 1007 Of
2004

5. Maluku Interglobal –V-Bank Of Uganda [983] HCB 63

g) Opposing Application for leave

1. Sebyala Kiwanuka & Anor versus Sendi Edward HCMA No.
500/2014
2. Elias Waziri & 2 Others Vs. Opportunity Bank (U) Ltd HCMA No.
599/2013 (HC)
3. Sterling travel and tour services Ltd vs. Millennium Travel & tours
services Ltd; HCMA No. 116 / 2013:

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

h) Conditional or Unconditional Leave

1. Tusker Mattresses U Ltd V Royal Care Pharmaceuticals Ltd
HCMA No.38/2010
2. Kundanlala Restaurant Versus Devshi [1952] 19 EACA 77

i) Setting aside Decree, Leave to appear and defend, setting aside

execution and stay of execution 036R.11
Applicability;
1. Uganda Telecom Ltd versus Airtel Uganda Ltd HCMA No.30/2011
2. Konoweeka Architecture Painters and Builders Ltd vers. Daniel L.
Mukasa [1976] HCB 222
Procedure
1. Francis W. Bwengye V Haki Bonera HCT-00-CV-CA No.033-2009
2. Pinnacle Projects Limited V Business in Motion Consultants Ltd
HCMA No.362/2010.

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

4. Magem Enterprises V Uganda Breweries (1992) 5 KALR 109

(omnibus application

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5. Dr. Ahmed Kisuule versus Greenland Bank in Liquidation HCMA

No. 2/2012.
J) Grounds
1. Musa Sbeity & Anor. Versus Akello Joan HCMA No. 385/2013
2. Uganda Telecom Ltd versus Airtel Uganda Ltd HCMA
No.30/2011
3. Ali Ndawula & Anor. V R.L Jain HCMA No.0624of 2008
4. Big ways Construction Ltd V Trentyre (U) Ltd HCMA No.
0832/2005
5. Meddie Ddembe Maji Marefu V Nalongo Namusisi HCMA No.35
Of 2002
6. Zeinab Bandali V Gold Trust Bank HCMA No.800 of 1997.
K) Test and threshold
1. Kensington Africa Limited versus Pankaj Kumar Hemraj
Shah HCMA 687/2012
2. Ahmos Investment Group of Companies & 4 Ors vs. Stanbic
Bank (U) Ltd HCMA No. 684/2014
3. Souza Figureldo – V- Moorings Hotel [1959] EA 425
4. UCB –V- Mukoome Agencies [1982] HCB 22
5. Maluku Interglobal vs. Bank of Uganda [1985] HCB 65
6. Caltex V- Kyobe [1988-90] HCB 141
7. Senyange –V- Naks Ltd [1980] HCB 30
Other authorities on the subject as may from time to time be
referred to

L)Stay of execution and Interim order of stay of execution

1. Souna Cosmetics Versus URA HCMA No. 424/2011

2. Ali Ndawula & Anor. V R.L Jain HCMA No.0624 of 2008
3. Dr. Mohammed Ahmed Kisuule versus Greenland Bank in
Liquidation HCMA No. 02/2012
4. Kisawuzi Henry versus Kayondo Moses HCMA No. 045/2011

TOPIC TWO

AFFIDAVITS

The Applicable Law, the meaning and types of affidavits, distinction

between affidavit and pleadings, circumstances where affidavit
evidence is applicable, procedure and manner of deponing affidavits,
common procedural and substantive defects in affidavits/curable
defects, manner of filing and time limits.

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The Applicable Law on Affidavit Evidence

1. David Kato Luguza & Anor versus Evelyn Nakafero HCCA

No.37/2011 (2013)

2. Rtd Lt. Saleh Kamba & Others versus AG Hon. Sekikubo & others.

3. Constitutional Applications No.14/16 of 2013

4. Life Insurance Corporation of India V Panesar (1967) EA 615

a) Meaning and Contents of an affidavit

1. Reliable Trustees Limited & 3 others V George F. Sembeguya HCCS

No.601 of 1992

2. Margaret & Joel Kato Versus Nulu Nalwoga Civil Appl.

No.041/2012 SC

3. David Kato Luguza & Anor versus Evelyn Nakafeero HCCA

4. No.37/2011

5. Uganda Micro Finance Lnion Ltd. Vs Sebuufu Richard and Anor

HCT-OO-CC-MA 0610-2007

6. Kakooza Jonathan & Anor V Kasaala Growers Coop. Society SC

Application No.1/2001

b) Circumstances where Affidavit Evidence is Applicable, Cross

examination of Deponents, Procedure and the Practice

1. Rtd L t. Saleh Kamba & Others versus Ag. Hon Sekikubo & Others.

Constitutional Application No.14/16 of 2013

2. Thornhill-V- Thornhill (965) EA 268

3. Prernchand Rainchand - V- Quary Services Ltd (1960)EA 517

4. Mulowooza & Bros Vs. N. Shah & Co. Ltd SCC Application No.

20/2010

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c) Types of Affidavits,

1. Southern Investment Ltd vs Mukabira Foundation Investments

HCMA No. 105/2004

2. Kakooza Jonathan & Anor V Kasaala Growers Co-op Society SC

Application No. 13/2011

3. Jane Lugolobi & 9 others vs Gerald Segirinya HCMA No 371/2001

4. Energo Project V Brigadier Kasirye Gwanga & Anor. HCMA No.

558/2009

5. Samuel Mayanja V URA HCT -00-CC-MC-0017-2005

6. Ready Agro Suppliers Ltd & Others V UDB HCMA No.0379 of

2005

7. Jayanth Amratlal & Anor Vs Prime finance Co. Limited HCT-CC-

MA-225-2008

8. Kakande Kenneth Paul Versus Fred Ruhindi Constitutional

Petition No.2006

d) Procedure of Deponing Affidavits, including Affidavits by

Illiterates

1. Mefika Matsebula Versus Mandra Ngwenya (4306/10)[2012]

SZHC142(August 2012)

2. Kakooza Jonathan & Anor V Kasala Growers Co-opsociety SC

Application No.13/2011

3. Hon Theodore & others Versus Rtd (LT) Saleh Kamba & others

SCC Application No. of 2014

4. Kakooza John Baptist V Electoral Commission Anor. SC EP A

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N’O. 11/1997

5. Mayende Peter Patrick V Mayende Stephen Dede & Anor

Election Petition No. 15/2011

6. Ngoma Ngime V EC & Winnie Byanyima EPA No. 11 of 2002

CA

7. Mugema Peter Versus Mudiobole Abed Nasser EPA

No.030/2011

e) Affidavits Deponed in Representative Capacity

1. Solome Nabyonga Versus Zion Estates Limited HCMA

N 0.872//2015

2. Solome Nabyonga Versus Zion Estates Limited HCMA

N 0.872//2015

3. Stephen Mukuye & Others Versus Madhivani Group Limited

HCMA No. 0821/2013

4. Ready Agro Suppliers Limited Versus Uganda Development

Bank (Supra)

5. Taremwa Kamishani Versus Attorney General Mise. Cause No.

0038/2012

6. Hajji Edirisa Kasule Versus Housing Finance Bank Limited

HCMA NO. 667/2013

(f) Requirement to state Date and Place of Deponing an Affidavit and

effect on non-compliance;

1. Hon Theodore Sekikubo & others Versus Rtd (L T) Saleh

Kamba &

others SCC Application No. 03 of 2013

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2. Mwiru Paul Versus Hon Igeme Nathan Nabeta Election Petition

No.

6/2011

3. Gordon Sentibaand2 others versus IGG CA [2008] HCB 356

4. Kakooza John Baptist V Electoral Commission and Anor.SC

EPA No.

11/1997

5. Justice Remy Kasule V Hon Winnie Byanyima & Jack Sabiiti

HCCS

No.230/2006

6. Saggu V Road Master Cycles U Ltd [2002]1 EA 261

7. Eng. Yorokarnu Katwiremu Vs. Elijah Mushemeza [1997] 11

KALR 66

8. Mbayo Jacob vs Electoral Commission and Anor. CA EPA

No.07/2006

9. Namazzi Vs. Sibo (1986) HCB 58

10. Male Mabirizi vs The ATTORNEY General Misc. Application No.

7 of 2018

(g) Commissioning of Affidavits, implications and effect of non

Compliance

1. Hon Theodore Sekikubo &others Versus Rtd (L T) Saleh Kamba

&

others SCC Application No. 03 of 2013

2. Kakooza John Baptist V Electoral Commission and Anor. SC EP

A

No.ll/1997

3. Standard Chattered Bank V Mwesigwa Phillip HCMA·No.

477/2012

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4. Otim Nape George William Vs Ebil Fred & Anor. EP No.

0017/2011

5. Attorney General Vs. APKM Lutaaya [Supreme Court Civil

ApplicationNo. 12 of 2007]

6. Darlindton Bakunda Vs. Stanely Kinyatta: CA No. 27/96

7. Grenland Bank Limited V HK Enterprises Ltd [1997-2001]

UCLR

283

8. Anastazia NakaziV Shelter Ltd; HCMA No. 55/2002

(h) Filing of affidavits and Consequences of failure to file Affidavits

1. Sebyala Kiwanuka & Anor. Versus Sendi Edward HCMA

No.500/2004
2. Ready Agro Suppliers Ltd & others V UDB HCMA No. 0379 of 2005
3. Erias Waziri V Opportunity Bank HCMA 599/2013
4. Stop & See (U) Ltd Versus Tropical Africa Bank Ltd HCMA
No.333/2010
5. Kakande Keneth Paul V Ruhindi Fred and Anor. Election
Petition No. 19/2006
6. Jayanth Amratlal & Anor V Prime Finance Co. Limited HCT-CC-
MA-
225-2008
7. Amama Mbabazi V Garuga Musinguzi CA EPA No. 1/2001
8. Jane Lugolobi & 9 Others V Gerald Segirinya HCMA No. 371/2001
9. Energo Project V Brigadier Kasirye Gwanga & Anor. HC1\,1A No.
558/2009
10. Samwiri Massa V Rose
Achen(1978)HCB 297
11. Re: Lokana Okoth [1975]HCB
204
12. 0dongkara V Kampala [1968]
EA 210

i) FalsehoodsinAffidavits

1. Jetha Brothers Ltd V Mbarara Municipal Council &4 others

HMCA

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No.31 of 2004

2. Uganda Micro Finance Union Ltd. Vs Sebuufu Richard and Anor

HJCT-OO-CC-MA 0610-2007

3. Bitaitana-V-Kananura [1977] HCB 34

4. Bigways Construction Ltd V Trentyre (U) Ltd. HCMA No.

0832/2005

5. Joseph Mulenga Vs Photo Focus (U) Ltd.[1996] V KALR 19

6. Meddie Ddembe Maji Marefu Vs Nalongo Namusisi HCMA No.35

of 2002

7. Pinnacle Projects Limited Vs Business in Motion Consultants Ltd.

HCMA No.362/2010

8. Kakooza Jonathan & Anor V Kasaala Growers Coop. Society SC

Application No.13/2011

j) Annextures to Affidavits, requirement of sealing and

consequences

of non-compliance

1. Kebirungi Justine V MIS Road Tainers Ltd. & Others HCMA

No.285

of 2003

2. Lugazi Progressive School & Anor versus Sserunjogi HCMA

50200

3. 3. Kansam Vs Chief Registrar of Titles, Misc. Applic.

No.524/1996;

Sebutinde

4. 4. Uganda Cooperative Creameries V Reamation, Court of

Appeal 1998

5. Walker-V- Poole [1982] 21 Ch. D 835

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k) Affidavits deponed by Advocates, implications and legal

consequences

1. Jayanth Amratlal & Anor Vs Prime Finance Co. Limited HCT-

CC-

MA-225-2008

2. Chatrabhuj Laximidas Dalia V Kanoni Importers& Exporters

Ltd.

HCMA No.53 of 2001

3. Massa V Achen [1978] HCB 297

4. Ismail Vs Kamukama (1992) III KALR 113

5. Yusuf Abdul Gani Vs Fazal Garage [1955] 28 KLR 17 (K)

l) Inconsistencies, Contradictions in Affidavits and Legal

Consequences

1. Mark Okello Vs David Wassajja CA Civil Ref. No. 54/2005

2. Mugume V Akankwasa [2008] HCB 682

3. Kaingana Vs Dabo Boubou [ 986]HCB 59

4. Bitaitana V Kananura {1977} HCB 34

5. Kakooza Jonathan & Anor Kasaala Growers Coop.5ociety SC

Application No.13/2011

m) Argumentative, prolix and affidavits constituted by

irrelevant

subject matter hearsay in Affidavits, disclosure of source of

information, statement of grounds of belief

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1. Nakiridde V Hotel International [1987] HCB 85

2. Alia Babwa V Abdul Halimu [1995] V KALR 20

3. Assanand & Sons V E.A. Records [1959] EA 360

4. Hill-V - Harp Davis [1984] 26 Ch.470

5. Eseza Namirembe - V - Musa Kizito [1973] EA 413

6. Myres-V- Akira Ranch [1974] EA 169

7. Nandala - V - Lydiing [1963] EA 706

8. Re Kikoma Saw Millers Co. Ltd.[1976]HCB 50

9. Standard Goods - V- Musa Harakhchand Nathu [1950]17

EACA99

11. Male Mabirizi vs The ATTORNEY General Misc. Application

No. 7 of 2018

n) Applicability of Article 126(2) (e) to Defects in Affidavits

1. Banco Arabe Espanol Vs BOU SCCA No.8/1998

2. All sisters Co. Ltd. V Guangzhou Tiger Head Battery Group

Co.Ltd.

HCMA No.307/2011

1. Col.Rtd.Dr.Kiiza Besigye Vs Museveni Yoweri Kaguta and ECSSC

EP No.l/2001

2. Kasaala Growers Coop.Society V Kalemera Jonathan SC Civil

Applic.

No.24/2011

5. AG V APK~ Lutaaya SCC Applic No. 12/2007

6. Nelson Sande Ndugo V EC HCT EP No.0004 of 2006

Other Authorities as may from time to time be referred to

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TOPIC THREE;

TYPES OF JUDGEMENTS

The Applicable Law, the meaning and types of judgments, distinction

between the various types of judgments, circumstances under which
each judgment may be entered and the preconditions, procedure and
manner of entering such judgments. Read Order 21, Order 9, Rules 6-
11, Order 25, Order 13, r.o, 0.50 r.2 and 0.36 r.3.

Meaning, Pre-requisites of a Valid Judgment

1. Liberty Construction Co. Ltd versus R.C Munyani & Co. Advocates
HCMC No. 8/2011

2. Maniraguha Gashumba versus Sam Nkundiye CACA No. 23/2005

(2013)

3. Caroline Mboijana & Others V James Mboijana SCCA NO. 3 OF

2004

4. Orient Bank Ltd vs. Fredrick Zaabwe and Anor SSC Application
No. 17/2007
5. Amrit Goyal V Harichand Goyal and 3 Others CA Civil Application
No.109/2004

Judgment and Legal Effect

1. Edith Nantumbwe Versus Mariam Kuteesa Civil Ref. No. 28/2012

2. Housing Finance Bank Ltd & Anor v Edward Musisi CA No.158

of 2010.

3. Re Howard Amani Little CACA No. 32 of 2006

4. Mwiru Paul Vs. Hon Igeme Nathan Nabeta Misc. Cause No.6/2012

5. Hamutenya V Hamutenya [2005] NAHC1

6. F.x Mubuuke V UEB HCMA No.98/2005

7. Amrit Goyal V Harichand Goyal and 3 Others CA Civil Application

No.109/2004

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8. Kahumbu V National Bank of Kenya (2003) 2 EA 475

9. Orient Bank Ltd V Fredrick William Zaabwe & Anor SCC App No.
2009

10. Hadkinson Vs. Hadkinson [1952] 2 ALLER 267

11. Makula International Ltd V His Eminence Cardinal Nsubuga

& Anor. (1982) HCB 11

12. Adam V Libyan Arab Bank SSCA28/1992.

Ordinary Judgment [the law, Procedure and Practice

1. Caroline Mboijana & Others V James Mboijana SCCA NO. 3 OF

2004
2. Orient Bank Ltd vs Fredrick Zaabwe and Anor SSC Application
No. 17/2007

Default Judgment [the law, Procedure and Practice,

1. Concern Worldwide versus Mukasa Kugonza HC Civil Revision No.

1/2013

2. Lloyds Forex Bureau versus Securex Agencies (U) Limited HCCS

No. 358/2012

3. Twine Amos versus Tamusuza James HC Civ Revision No.

0011/2009

4. Valery Alia versus Alionzi John

5. Dembe Trading Enterprises Ltd V Uganda Confidential Ltd & Anor.

HCCS No.0612 of 2006

6. Mwatsahu Vs. Maro (1967) EA 42

7. Mark Graves vs Balton (U) Ltd HCT-00-CC-MA 0158-2008

8. Magon vs Automan Bank (1968) EA 136

9. Craig Vs. Kansen [1943] 1ALLER 108 Cited in Electoral

Commission V Mbabaali Juse HCT-06-CV-MA No.53/2006

10. Edson Kanyabwera V Pastori Tumwebaze SCCA No.6/2004

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Default Judgment against Government (AG)

1. Agasa Maingi V AG HCCS No.0095/2002

2. Thomas Irumba V AG [1991] HCB 90;

3. AG V Sengendo (1972) EA 356

4. Edson Kanyabwera V Pastori Tumwebaze SCCA No.6/2004

Interlocutory Judgment

1. NBS Television Limited Versus UBC HCCS No.007/2013

2. Twine Amos versus Tamusuza James HC Civ Revision No.

0011/2009

3. Credit Guarantee Insurance Co. of Africa 7 Anor. V Lagoro

Holdings Ltd [1997-2001] UCLR 229
4. Faridah Kabiite V Yusuf Sembuya HCCS No. 683 of 1999

5. Hajji Asumani Mutekanga V Equator Farmers (U) Ltd [1996]

KALR70 SC

6. Dembe Trading Enterprises Ltd V Uganda Confidential Ltd & Anor.

HCCS No.0612 of 2006

7. Magon vs Automan Bank (1968) EA 136

8. Korutaro vs. Makairu [1975] HCB 215

Possibility of Obtaining both a default and Interlocutory

Judgment in one suit

1. Lloyds Forex Bureau versus Securex Agencies (U) Limited HCCS

No. 358/2012
2. NSSF versus Hisubi High School HCCS No. 440/2011
3. Valery Alia versus Alionzi John
4. Dembe Trading Enterprises Ltd V Uganda Confidential Ltd & Anor.
HCCS No.0612 of 2006

Ex parte Judgment [the law, Procedure and Practice]

1. Twine Amos versus Tamusuza James HC Civ Revision No.

0011/2009

2. Abenego Ongom V Amos Kaheru [1995] 3 KALR 7

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3. DAPCB V Issa Bukenya T/A New Mars War House [1994-95] HCB
60

4. Korutaro vs. Makairu [1975] HCB 215

5. . Magon vs Automan Bank (1968) EA 136

6. Fred Hereri Vs. AG HCCS No. 42/1995

7. AG Vs. Sengendo[1972] EA 356

8. Ssebunya V AG (1980) HCB 69

Judgment on Admission [ the law, Procedure and Practice

1. Brian Kaggwa versus Peter Muramira CACA No. 26/2009 (2014)

2. Dr. Specioza Wandira Kazibwe V Engineer Charles Kazibwe Divorce
Petition No

3. Ziraguma Emmanuel & Anor V The Most Rev L.M Nkoyoyo HCCMA
NO.0282/2003

4. Central Electrical International Ltd Vs. Eastern Builders and

Engineers Ltd HCT-00-CC-MA 0176-2008
5. Juliet Kalema Versus William Kalema CACA No. 95/2003

6. Agasa Maingi V AG HCCS No.0095/2002

7. MUK vs Rajab Kagoro(2008) HCB 103

8. Eriaza Magala vs Rev. Kefa Sempangi (1994) 1 KALR 93

9. Sietco vs Impregico Salim HCCS No. 980/1999

10. Wright Kirke Vs. North (1985) Ch 747

Consent Judgments, Compromises [the law, Procedure and

Practice

1. George William Kateregga versus Commissioner Land Registration

& Others HCMA No. 347/2013

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

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

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3. British American Tobacco versus Sedrach Mwijakubi SCCA No.

01/2012

4. Geoffrey Gateete & Anor. V William Kyobe SCCA No.7/2005

5. Wasike V Wamboko [1978-1985] EALR 626
6. Meera Investments Ltd V Jeshang Popat Shah CACA No. 56 of
2003
7. Betuco (U) Ltd & Anor vs Barclays Bank (U) Ltd and Anor HCT -00-
cc-MA -0507 – 2009
8. Bank of Baroda (U) ltd vs Ataco Freight Services ltd CACA No.
45/2007
9. Greenland Bank Ltd vs HK Enterprise Ltd & Ors [1997-2001 ]
UCLR 282
10. Oil seeds (U) Ltd vs Uganda Development Bank SCCA No.
09/2009
11. Nalumansi Christine V Hon Justice Steven Kavuma HCMA
No.155/2008

12. Peter Muliira V Mitchell Courts CACA No.15 of 2002

13. Hirani V Kassam (1952) EACA 131

14. Charles James .M Kamoga & Anor. V AG & ULC CACA

NO.74/2002

15. Gordon Sentiba & OTHRS V IGG CACA NO. 14/2007

16. Others authorities as may from time to time be referred

to

TOPIC FOUR

SETTING ASIDE OF JUDGMENTS AND DECREES

The Applicable Law, the meaning of setting aside, the circumstances

and grounds for setting aside, the locus to apply, discretionary power
of court and limitations thereto, distinction between setting aside
under rule 12 and 27 of order 9 and the applicable remedies where
application is allowed or rejected.

Effect of judgment

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1. George William Kateregga versus Commissioner Land Registration

& Others HCMA No. 347/2013

2. Edith Nantumbwe Versus Mariam Kuteesa Civil Ref. No. 28/2012

3. Housing Finance Bank Ltd & Anor v Edward Musisi CA No.158

of 2010.

4. National Enterprise corp. Vs Mukasa Foods Ltd CACA No. 42/97

5. Re Howard Amani Little CACA No. 32 of 2006

6. Kahumbu V National Bank of Kenya (2003) 2 EA 475

7. The Protector & Gamble Company vs. Kyobe James Mutisho &
2Ors HCMA No. 135/2012

Setting Aside of Judgment and Decree Under Order 36 r. 11

1. Ali Ndawula & Anor. V R.L Jain HCMA No.0624of 2008

2. Big ways Construction Ltd V Trentyre (U) Ltd HCMA No.
0832/2005
3. Meddie Ddembe Maji Marefu V Nalongo Namusisi HCMA No.35 Of
2002

Setting Aside of Judgments and Decrees under O.9 R.12

1. Tweheyo Edison versus Barurengyera Kamusiime Hilary HCCA No.

011/2010 (2013)

2. The Co-operative Bank Ltd Versus Amos Mugisa HCMA No.

549/2009

3. Emiru Angose V Jas Projects Limited HCMA No. 429/2005

4. Ladak Abdalla M. Hussein Vs. Griffiths Igingoma Kakiiza& Others

SCCA No.8 of 1995

5. DAPCB V Uganda Blanket Manufacturers [1973] LTD (1982) HCB

119

6. Label (EA) LTD V EF Lutwama CACA NO.4/85

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7. Kimani –V- McConnell [1966] EA 547

8. Nicholas Roussous V Gulam H.H Virani & 2 Others SCCA NO.3 of

1993.

9. Patel V Cargo Handling Services {1974] EA 75

Setting Aside of Ex Parte Decrees Under Order 9 Rule 27

1. Al Hajji Abdi & Others versus Tropical Africa Bank HCMA No.
260/2006(2013)

2. Kensington Enterprises Limited & Othrs. Versus Metropolitan

Properties Ltd HCMA No. 314/2012

3. Zena Abdalla Okello & Others Versus Mayan Aziz HCMA No.
118/2009

4. Nicholas Roussous V Gulam H.H Virani & 2 Others SCCA NO.3 of

1993

5. Wanendeya William Giboni V Gaboi Kibale Wambi CACA

No.08/2002
6. Hikima Kyamanywa V Sajjabi Christopher CACA No. 1/ 2006

7. Zirabamuzale v Correct [1962] EA 694,

8. [Patel V Star Mineral Water & Ice Factory (1961) EA 454,

9. Mitha V Ladak (1960) EA 1054.

10. Patrick Kawooya Vs C. Naava:[1975] HCB 314

11. Label (East Africa ) Ltd V E.F Lutwama CACA No. 4/1985

12. Fabiano Mugerwa & Another Vs Kakungulu [1976] HCB 289;

13. Zirondomu Vs Kyamulabi: 1975 HCB 337

14. Craig Vs Kansen: [1943] 1 ALLER

15. Forthill Bakery Supply Co. Vs Muigai Wangoi [1958] EA

16. Francis Makumbi V NIC 1979] HCB 230

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17. Henry Kawalya V J. Kinyankwanzi [1975 HCB 372

18. Mbogo & Anor. V Shah [1968] EA 93

Setting Aside Consent Judgments

1. Peter Mulira V Mitchell Cotts CACA No. 15 of 2002

2. All Sisters Co Ltd V Guangzhou Tiger Head Battery Group Co.

Ltd HCMA No. 307/2011

3. George William Kateregga versus Commissioner Land

Registration & Others HCMA No. 347/2013

4. Charles J.M Kamoga & ANOR. V AG & ULC CACA NO.74/2002

5. Gordon Sentiba & OTHRS V IGG CACA NO. 14/2007

6. Hirani V Kassam [1952] EACA 133

7. Morris Ogwal & OTHRS V AG HCMA No.456/07

8. Geoffrey Gateete & Anor. V William Kyobe SCCA No.7/2005

9. Meera Investments Ltd V Jeshang Popat Shah CACA No. 56 of
2003
10. Betuco (U) Ltd & Anor vs Barclays Bank (U) Ltd and Anor
HCT -00-cc-MA -0507 – 2009

11. Nicholas Roussous V Gulam H.H Virani & 2 Others SCCA

NO.3 of 1993

Others authorities as may from time to time be referred to

TOPIC FIVE

THE TRIAL, AND PRE TRIAL PROCEDURES

Applicable Law, brief summary of processes after closure of pleadings,

mediation, scheduling, hearing including interlocutory applications
and objections, prosecution of suits and dismissals, re-instatements,
grounds and procedure as highlighted herein after. The Elements of
trial advocacy shall be covered in the course.

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Cause listing of Cases and service of Hearing Notices

1. Dick Kabali V Rebecca Mawanda AND ANOR (UNREPORTED),

Kibuuka Musoke J

2. Frank Katusime V Business Systems Limited

3. Tommy Otto vs. Uganda Wildlife Authority HCCS No. 208/2002

4. Edison Kanyabwera V Pastori Tumwebaze (supra)

5. Kasirye Byaruhanga and Co. Advocates vs Mugerwa Pius

Mugalaasi CACA No 87/2008.

6. National Enterprise cor. Vs Mukasa Foods Ltd CACA No. 42/97

7. Brian Kaggwa versus Peter Muramira CACA No. 26/2009 (2014)

Scheduling Conference, Scheduling Memorandum and Framing of

issues

1. Anita Among Versus AG of Uganda and Others Ref. No. 6/2012

(EACJ)

2. Abdul Katuntu Versus AG of Uganda and Others Ref. No. 5/2012

(EACJ)

3. Hajji Kassim Ddungu Versus Nakato Nuliat HC CA No.

72/2002(2011)

4. Tororo Cement Co. Frokina International Ltd SCCA NO.2 OF 2001

5. Peter Mulira V Mitechell Cotts CACA NO.15 OF 2002

6. Stanbic Bank Versus Uga Cross Ltd SCCA No.4 /2004

7. Bwanika and Others versus Administrator General SCCA

No.7/2003

8. Kakooza John Baptist V Electoral Commission and Anor. SC EPA

No. 11/1997

9. Kasirye Byaruhanga and Co. Advocates vs Mugerwa Pius

Mugalaasi CACA No 87/2008.

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10. Darlington Sakwa & Anor. V Electoral Commission& 44

OTHERS Constitutional Petition NO. 08 OF 2006,

11. Oriental Insurance Brokers LTD V Trans Ocean LTD CA NO.

55/95,

Preliminary Objections

1. Katabazi & 21 Others Versus AG of Uganda and Anor Ref. No.

01/2007 EACJ

2. Tororo Cement Co. Frokina International Ltd SCCA NO.2 OF 2001

3. Translink (U) td vs Sofitra cargo Services Ltd and ors HCT -00—
CC-CS-0561 – 2006

4. Eng. Yashwant Sidpra & Anor. Vs. Sam Ngude Odaka & Others
HCT-00-CC—CS 365-2007

5. Mukasa Biscuit Manufacturing Co. Ltd vs. West End Distributors

Ltd [1969] EA 696 at 701

6. NAS Airport Services Ltd v A.G of Kenya 1959] EA 53

7. Ismail Serugo V KCC & AG SCCA No.2/98 Oder JSC,

8. A-G V Major General David Tinyefuza SSCA No.1/97,

9. IGA V Makerere University [1972] EA 65

10. Western Steamship CO. LTD V Ambaral Sutherland Co.

[1814] 2 K.B 55,

11. Others authorities as may from time to time be referred

to

Adjournments

Procedure, Grounds

1. Obiga Kania versus Electoral Commission & Anor. EPA No.

04/2011

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2. Nulu Kaaya Versus Crescent Transportation Limited SCCA

No.06/2012

3. Yahaya Karisa V AG [1997] HCB 29 SC

4. Fred Hereri Vs. AG HCCS No. 42/1995

5. Road Master Cycles V Tarlock Singh [1997 2001] UCLR 378

6. Tiromwe-V Kanoko& ORS [1972] HCB 57

7. Birumi Wilson Vs. Akamba (U) Ltd [1995] 1 KALR 50

8. Maxwell –V- Keun [1928]1 KB 645

9. Dick –V- Piller [1943] 1 AER 627

10. Mbogo& ANOR –V- Shah [1968] EA 93 .

11. Mohindra –V- Mohindra [1953] 20 EACA 56

12. Daniel Kayizzi versus Yosia Bissa

Prosecution of Suits

1. Ssalongo versus Nantegorola [1976] HCB 290

2. Patel versus Gottfriend [1953] 20 EACA 81

3. Shabani versus Karada & Co. Ltd[1973] EA 497

4. Mayers versus Akira Ranch Ltd [1971] EA 56

5. Nyiramakwe versus Bitariho [1973] HCB 58

6. Mukisa Biscuits versus Western Distributors [1960] EA 696

7. Victory versus – Duggal [ 1962] EA 697

8. Nantaba versus Musoke [1988-90] HCB 98

Dismissal andRe-Instatement of Suits

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1. Kibugumu Peter Patrick versus Aisha Mulungi &Hassan

Bassajabalaba & Anor. HCMA 455/2014

2. Ayub Suleiman Versus Salim Kabambalo CACA No. 32/1995

3. Mohammed Ssalongo Kasule Vs. Edith Nantumbwe & Othrs HCMA

No.34/2009

4. A.P Bhimji Ltd v. Michael Opkwo, H.C. Misc. Appl. No. 423 of 2011,

5. Horizon Coaches Ltd Vs. James Mujuni & Anor HCMA No.
55/2011

6. Stewards of Gospel Talent Limited versus Nelson Onyango & Othrs

HCMA 014/2008

7. Vita Form (U) Ltd Vs. Euroflex Limited HCCS No.438/2011

8. Uganda Micro Finance Union Ltd Vs. Sebuufu Richard and Anor
HCT-00-CC-MA 0610-2007

9. Mohammed Ssalongo Kasule Vs. Edith Nantumbwe & Othrs HCMA

No.34/2009

10. Twiga Chemical Industries Ltd V Viola Bamusedde CACA

No. 0 2002;

11. Golooba Godfrey V Harriet Kizito [2007] HCB Vol 1 31

12. Road Master Cycles V Tarlock Singh [1997 2001] UCLR 378

13. Nakiridde –V- Hotel International [1987] HCB 85

14. United Equipment –V- Uganda Bookshop [1987] HCB 90

15. Ahmed Zirondomu V Mary Kyamulabi [1975] HCB 937

16. Bandali Jaffer versus Sseggane[1972] ULR 108

17. Girado versus Alam [1971] EA 448

18. NIC –V- Mugenyi [1987] HCB 28

19. Sebugulu versus Katunda [1979] HCB 46

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TOPIC SIX

PRE – TRIAL AND JUDGEMENT REMEDIES

The Applicable Law, the meaning pre-trial and Judgment

remedies, including temporary injunctions and interim orders,
security for costs, attached before judgment, the grounds and
applicable procedure, manner of objection or opposition.

Interlocutory Injunctions, Interim Orders and Preservation of

Property

 The Judicature Act (cap 13) S. 14, 33, and 38

 The Civil Procedure Act (Cap .71) s.98

 Civil Procedure Rules (S.1 71-1) Order 41

 The Government Proceedings Act (Cap 77)

 Justice Egonda Ntende: The Demise of the Exparte Temporary

Injunction

Interlocutory/ Temporary Injunctions

Applicable Law

1. Samuel Mayanja V URA HCT -00-CC-MC-0017-2005

2. BAT (U) LTD vs Bamuda Tobacco Co. Ltd HCT - -00-CC-MA- 0599-
2005

Nature and essence of a Temporary Injunction

1. Hussein Badda V Iganga District Land Board HCT-00-CV-MA

0479-2011

2. Noah Bukenya Global Credit Management Co. Ltd HCMA

No.9/2011

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3. Babumba –V- Bunju [1992] III KALR 120

4. BAT (U) LTD vs. Bamuda Tobacco Co. Ltd HCT - -00-CC-MA-
0599-2005

1. Rutiba Shaban vs Lucy Miwanda HCLDCA No. 18/2006

2. In Re Kakoma Saw Mills [ 1974] EA 487

Pendency of a Suit

1. Hussein Badda Vs. Iganga District Land Board & 4others HCT-00-
CV-MA 0479/2011

2. Samuel Mayanja V URA HCT -00-CC-MC-0017-2005

3. Re Theresa Kiddu [1980] HCB 115:

Discretion of Court

1. Alley Route Ltd vs. Uganda Development Bank Ltd HCT -00-cc-
MA- 6344/2006

2. Francis Kayanja vs DT B ( U) LTD HCT -00-CC-MA -0300/08

Maintenance of the Status Quo

1. Andrew Babigumira Vs. John Magezi HCMA No. 538/2013

 Commodity Trading Industries Ltd & Anor Versus Uganda Maize

Industries Ltd [2001-2005] HCB 118

2. Francis Kayanja vs Diamond Trust bank of Uganda Ltd HCT-00-

CC-MA 0300- 2008

3. Peace Isingoma vs MGS International (U) Ltd HCT -00-CC-MA-

0761 – 2006.

4. Godfrey Sekitoleko & 4 OTHERS V Seezi Peter Mutabaazi [2001-

2005] HCB 80

5. Jonny Waswa vs Joseph Kakooza 1998 HCB 85

6. Noor Mohamed vs Jammohusein (1953) 29 EACA P

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Preservation of Property

1. Uganda Telecom Ltd Vs. Justus Ampaire HCT-00-CS-0599-2003

2. Bob Kanyabujunja Vs. Kakooza [1988-90] HCB 166

Pre-conditions/ Considerations for Grant of a Temporary Injunction

1. M/s Epsilon (U) Ltd Vs. Joseph Kibuyaga HCMA No. 0139/2011

2. Professor Semakula Kiwanuka V Electoral Commission & AG

Constitutional Application No.08/2011

3. Uganda Law Society and Anor vs. Ag constitutional Application

No. 7/2003

4. Rubaramira Ruranga vs EC Constitutional App. No 10/06 .

5. Kiyimba Kaggwa V Haji Abdul Katende [1985] HCB 43

6. Uganda Muslim Supreme Council VS. Shiekh Kassim Mulumba

[1980] HCB 110

7. Giella –V- Cassman Brown [1973] E.A 358

Existence of a Prima Facie Case

1. Uganda Law Society and Anor vs. Ag constitutional Application

No. 7/2003
2. Imelda G. Basudde Nalongo vs Tereza Mwewulizi and Anor – HCMA
No. 0402 /2003
3. Agnes Bainomugisha vs DFCU Ltd HCT -00-CC-MA- 0435 /2007
3. Lydia Obonyo Jabwor vs Maurice Bagambe HCMA No . 353 /
2004.

Irreparable Injury/ Damage

1. Florah Rwamarungu V DFCU Leasing Co. Ltd HCT-CC-MA-0436-

2007
2. Alley Route Ltd vs. Uganda Development Bank Ltd HCT -00-cc-MA-
6344/2006
3. Digitek Advertising Ltd vs Corporate Dimensions Ltd HCT -00-CC-
MA-0424 / 2005
4. Francis Kayanja vs DT B ( U) LTD HCT -00-CC-MA -0300/08

5. NITCO VS. Hope Nyakairu [ 1992-93] HCB 135

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6. Doreen Kalema –V- NHCC [1987] HCB 73

Balance of Convenience

1. American Cynamid Co. Ltd V VS Ehicon LTD [ 1975] AC 396

2. Alley Route Ltd vs. Uganda Development Bank Ltd HCT -00-cc-MA-
6344/2006

3. Rubaramira Ruranga vs EC Constitutional App. No 10/06 .

Temporary Injunction Against Government

1. AG VS. Silver Springs Hotel SCCA NO. 1 OF 1989 ( UNREPORTED

2. Christopher Sebuliba –V- AG S.C.C.A NO. 13 OFF 1992 KALR 64
3. AG Vs. OSOTRACO Limited CA CA No.32/2002

Procedure

BAT (U) LTD vs. Bamuda Tobacco Co. Ltd HCT - -00-CC-MA- 0599-
2005
Noah Bukenya V Global Credit Management Co. Ltd HCMA
No.09/2009

Notice of Application

1. Doreen Kalema –V- NHCC [1987] HCB 73

Opposing Application

1. Jane Lugolobi V Gerald Segirinya HCMA No. 371/2002

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

Discharge of a Temporary Injunction

1. Afro Uganda Bros. Ltd –V- Mpologoma Bros General Agency (1987)
HCB 93

Interim Orders

1. Souna Cosmetics Versus URA HCMA No. 424/2011

2. Hussein Badda Vs. Iganga District Land Board & 4others HCT-00-
CV-MA 0479/2011
3. Board of Governors of Kawempe Muslim Sec. School V Hussein
Kasekende &Othrs HCMA 637/2006

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SECURITY FOR COSTS AND FURTHER SECURITY FOR COSTS

Order 26 CPR, S. 284 Companies Act, 2012

Principles Governing Security for Costs.

1. Deepak K SHAH & OTHS V Manurama Ltd & OTHS HCMA No.361
of 2001

2. Development Finace Corp of Uganda Ltd & Othrs V N.G General

Limited HCMA No. 1527/1999

3. John Murray Publishers Ltd Vs. G.W Senkindu & Anor [1997-
2001]UCLR 295

4. UNIDROM Ltd VS. Kaweesi & CO. LTD 1992 KALR 123

5. Rohini Danji Sidpra VS. Freny Damji Sidpra AND others SCCA 80
OF 1995 [1995] KALR 22

6. G.M Combined V A.K Detergents SC [1996] 1KALR 51

7. Namboro VS. KAALA 1975 HCB 315

8. Mawogola Farmers & Growers LTD –V- Kayanja [1971] EA 48

(NO.1) (C.A) – 108, (NO.2) (C.A) 272

9. John Mukasa & Litho Pack Ltd V M/S Srijaya Ltd HCMA No. 215
of 2004

10. Katabarwa V Ntege Ssebagala & Anor. HC EP No. 11 of

1998(1998) KALR 110

11. UDB- v- Muganga Construction [1981] HCB 36

Security for Costs and Further Security for Costs in the Supreme
Court

1. Margaret & Joel Kato versus Nulu Nalwoga Civil Applic. No.
11/2011
2. Kakooza Jonathan & Anor V Kasaala Growers Co-op Society SC
Application No. 13/2011
3. Goodman Agencies Ltd Vs. Hasa Agencies (K) Ltd Civl Ref
No.01/2011SC

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4. Bank of Uganda V Joseph Nsereko & 2 Othrs Civil Appl No.7/2002

SC

5. Bank of Uganda Vs. Banco Arabe Espanol SCC Appl No. 20/1999

6. Uganda Commercial Bank V Multi Constructors Ltd SCC Appl No.

29/94

7. Transroad Ltd Vs. Bank of Uganda SCC Appl No 43/1995

8. Lalji V Nathoo Yassamjee (1969) EA 315

9. NoorMohamed V Patel (1960)EA 447

10. Atul Kumar Patel V American Express Banking Corp SCC

Appl No. 9/1989

11. GM Combined (U) LTD VS. A.K Detergents ( U) LTD SCCA

NO 34 OF 1994 [1996] 1 KALR 51

12. Sir Lindsay Parkinson & CO. LTD VS. Triplan [1973] QB 609

1. Keary Development Ltd V Tarmac Construction Ltd [1995] 3 ALL

ER 534

2. Noble Builders (U) LTD & Anor V Jabal Singh (2005) ULSR 123 SC

3. The Official Receiver and Liquidator of Sejpal Ltd VNarandas Nanji

[1960] EA 108

Security for Costs and Further Security for Costs in the Court of
Appeal

1. Dr. Frank Nabwiso V Electoral Commission EP Application No.

25O of 2011
2. Southern Investments V Mukabura Investments Limited CAMA
No.77/2007

3. Ramzanali Mohamedali Meghani V Kibona Enterprises Ltd CACA

NO. 27 OF 2003

4. Amrit Goyal V Harichand Goyal & Othrs CAC APPl No. 109 of 2004

5. International Credit Bank (IN LIQUIDATION ) V Tropical

Commodities Supplies LTD & OTHRS CACA No.24 of 2004

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Failure to deposit Security for Costs

1. Amrit Goyal V Harichand Goyal& Othrs CACAPP No. 109 of 2004

2. Bank of Uganda –V- Banco Arabe Espanol S.C.C.Appl NO. 20 OF

1998 ARISING OUT OF S.C.C.A NO. 8 OF1998

Security for Costs in Election Matters

Hajji Abdul NadduliVs. Ronald Ndawula EPA No. CA

See Rule 5 Parliamentary Elections (Election Petition Rules)

See S.58 Parliamentary Elections Act 2005

Other relevant authorities on security for costs

ARREST AND ATTACHMENT BEFORE JUDGMENT 0.36

1. Stanbic Bank (U) Ltd Vs. New Makerere Kobil Station Ltd HCT-00-
CC-MA 565-2010

2. Rev Ezra Bikangiso V New Makerere Kobil Station HCT-00-CC-MA-

10-2010

3. UEB (in Liquidation) Vs. Royal Van Zanten HCT-00-CC-MA-0251

4. Uganda Telecom V Ltd V Justus Ampaire HCT-00-CV-MA-0599-

2003

5. Bob Kanyabujunja V Kakooza [1988-90] HCB 166

6. Pyarali Dakardini vs. Anglo American Amusement Park (1930)

4ULR 28

7. Mugimu vs. Basabosa [1991] ULSLR 191

8. Potgieter vs. St Stumbert [1967] EA 609

9. Henry Kawalya vs. J. Kirnyakwazi [1975] HCB 372

10. Musaka Farmers and Producers Ltd vs. Aloytus Tamale [

1992-93 ] HCB 203

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TOPIC SEVEN

JUDGEMENT ORDERS, DECREES AND COSTS S.27 CPA

1. Mwiru Paul V Hon Igeme Nathan Nabeta CA EPA No.006/2011

2. Mwiru Paul V Hon Igeme Nathan Nabeta Election Petition
No.6/2011
3. Departed Asians Property Custodian Board V Jaffer Brothers Ltd
SCCA No. 9/1998;
4. Software Distributors (Africa) Limited & Anor. Vs. Kambaho Perez
CACA No. 76/2006
5. Col. (Rtd) Dr. Besigye Kiiza V Museveni Yoweri Kaguta & Anor. SC
EP No. 0/2001
6. Kadama Mwogezaddembe V Ggawala Wambuzi Election Petition
No. 2/2001.

7. Behange Jenniffer V School Outfitters LTD [1997-2001] UCLR

8. Makula International Ltd V Cardinal Nsubuga& ANOR[1982] HCB

11

CONSEQUENCES OF JUDGEMENTS AND RES JUDICATA

S.6 & 7 CPA Cap 71

1. Maniraguha Gashumba versus Sam Nkundiye CACA No. 23/2005

2. Hon. Anifa Bangirana Kawooya vs AG and NCHE, Constitutional

Petition No. 42 / 2011.

3. Horizon Coaches Ltd Vs. James Mujuni & Anor HCMA No. 55/2011

4. Charles Mayambala V Stanbic Bank Civil Ref No. 69/2008 CA

5. F.W Sembatya V Nandawula and 2 Others CACA NO. 98 OF 2003

6. G.W Wanendeya vs Stanbic Bank (U) Ltd HCT-00-CC-CS-0486-2005

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7. Narrotham Bhatia & ANOR, V Boutique Zhazim Ltd HCMA NO. 411 OF
1992

8. Kamunye V Pioneer AssuranceCo Ltd [ 1971] EA 263

9. Saleh Bin Kombo V Administrator General [1957] EA 191

10. Semakula V Magala [1979] HCB 90

11. New Victoria Mines Co. Ltd vs. Presiding Officer Labour Court AIR
1970 A11 20, 214:

12. Lubisha V Wanyonyi [1978] HCB 101

13. Re Rwenzigye [1976] HCB 173

EXECUTION AND STAY OF EXECUTION

Read Article:

1. Enforcing Court Judgments and Court Orders; The role of an

Advocate. By Tibaijuka K. Ateenyi
2. Enforcement of Foreign Judgments In Uganda

CASES

1. Kavuma t/a Kavuma Associates versus AG HCMA No. 417/2012

2. Lab (U) Limited & 2 Others Versus Greenland Bank in Liquidation

HCMA No. 490/2010

3. Maria K. Mutesi versus Official Receiver HCMA No.706/2011

4. Jimmy Tumwine V Frank Nkurunziza and Anor HCT-00-CC-CS 479-

2002

5. Registered Trustees of Kampala Arch Diocese & Anor. Vs. Harriet

Namakula [1997-2001] uclr 385

6. NARSHIDAS M. METHA V BARON VERHEYAN (1956) 2 TLR 600

7. KATO V KANTINTI [1985] HCB 97

8. MEHTA V KARSANDAS PITAMBA & BROS [1958]EA 694

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9. OCHOLA V WASSWA & ANOR. [1988-90] HCB 102

10. PATEL V PATEL [1958] EA 743

11. KIU V STEEL ROLLING MILLS LTD & OTHRS HCMA 0509-2006

12. TRANSROAD LTD V BANK OF UGANDA [1996] VI KALR 42

13. ULC V PARK ROYAL HCMA NO. 545 /2004

14. MUNYAGENDA V SINGO WOLFRAM MINES LTD (1955) 7 ULR 144

15. STANDARD BANK OF SA V SENKUBUGE [1960] EA 13

16. MANDAVIA V RATTAN SINGH [1968] EA 146

17. SOHAN LAL V BRITISH EAST AFRICAN PLANTING CO. LTD (1938)
18 KLR

18. PETRO SONKO V PATEL (1953) 20 EACA 99

19. BEATRICE D’ SOUZA VS SACHODINA [964] HCB 117

20. BLASIO BIFABUSHA V TURYAZOOKA CACA 3/2000

21. EMMANUEL BITWIRE V REPUBLIC OF ZAIRE BY ITS EMBASSY IN

KAMPALA HCCS 858/1993

22. BROTHER PETER V AG [1980] HCB 101

23. BETTY NAMUGENYI V DAISEN CO & ANOR. HCMA No. 552 of

2005(objector)

24. JOHN VERJEE & ANOR. V SIMON KALENZI ^ OTHRS CACA

NO.71 OF 2000(Objector)

25. TRANS AFRICA ASSURANCE CO. LTD V NSSF SCCA NO.1 OF

1999(objector)

26. BEATRICE NAKITYO V RONALD K. NGANGA HCMA NO.713/2003

27. THE CO-OPERATIVE BANK LTD (IN LIQUIDATION) V MUGANWA

SAJJABI HCMA NO. 716/2005

28. Mildred Lwanga vers the Administrator General & Anor. HCCS No.
0086/2002

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29. MUGGA ADAM VS RANMAL KESHWLLA HCT MA 0679/2006

30. KISAMBIRA SENTAMU ISMAIL V ECIMA ELIKANA HCMA NO.

337/2006

31. RAJIMPEX VS. NATIONAL TEXTILES BAORD HCCS NO 103 OF

1988

32. SOKEMPEX INTERSTATE CO. V EURAFRO GENERAL IMPORT

AND EXPORT CO.LTD [1981] HCB 73

33. FENEKASI SEMAKULA V JAMES & JAMES & FRED MUSOKE

[1981] HCB 46

34. KINYABIKALI & ANOR V AG [1987] HCB 47

35. TRANS AFRICA INSURANCE CO. V NSSF [1999] EA 352 SC

36. EDMOND KAKALE V BENJAMIN WEDALW [1976] HCB 29 HC

37. POSHO MILLS VS KENYA SISAL ESTATE [1962] EA 647

38. RODWAY MOTOS LTD VS. SUNDERJI GOKALDAS [ 1940 ULR 51

39. KATO VS. KANTINTI [1985] HCB 97

40. AZZIZ VS. PAJABO [1977] HCB 36

41. ROBDEAY LE GRAND & CO. VS. MARKS [1918] 1 KB 75

42. PARIOT VS SEMPALA [978] 51

43. FENAKASI SEMAKULA VS. MUSOKE [198] HCB 46

44. SENTAMU VS. UCB [983] HCB 61

45. AG VS. KHATOON [1960] EA 505

46. CHRISTOPHER SEBULIBA V TREASURY OFFICER OF ACCOUNTS

CO AG HCMA No. 127 of 1992

47. SHAH V AG No. 2(1970) EA 543

48. PAUL KALULE KAGODO VS. KAROLINA KYAGAZA [1979] HCB 136

49. UCB –V- ZIRITWAWULA

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50. MOHAMMED –V- JUSTINE WAMALA AMARA

51. KABANGULE –V- PUMJAB

52. GIKTBY –V- HODCISON

53. SUNDER DAS –V- MUNICIPAL COUNCIL OF NAIROBI

54. ABDUL WALID & SONS –V- MUNSHIRAM

55. RE SIR JOHN BAGAIRE [1995] V KALR 18

56.

TOPIC EIGHT

CORRECTIVE AND POST JUDGMENT REMEDIES

SLIP RULE

1. David Muhenda versus Humphrey Mirembe Civil Applic.

No.05/2012 SC

2. Fang Min V Dr. Kaijuka Mutabaazi Civil Application No.06/2009

3. Horizon Coaches Ltd Vs. James Mujuni & Anor HCMA No.
55/2011

4. Ahmed Kawooya Kaugu versus Bangu Aggrey Fred Civil Applc. No.
03/2007

5. ORIENT BANK LIMITED V FREDRICK ZABWE AND ANOR SCCAPP

NO. 17 /2007

6. NPART V GENERAL PARTS (U) LTD MISC. APPLICATION NO. 8

/2000SC

7. LIVINGSTONE SEWANYANA V MARTIN ALIKER SCCAPP NO. 4 OF

1991 SC

8. LAKHAMISHI BROTHERS LTD R. RAJA & SONS (1966) EA 313

9. ADAM V LIBYAN ARAB BANK SSCA28/1992.

10. KASANDAS V JIVRAJ [1965] EA 700

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APPEALS, REVIEW AND REVISION

REVIEW OF DECREES AND ORDERS

REVIEW

1. F.X MUBUUKE V UEB HCMA NO. 98/2005[ meaning of review

2. Margaret Senkuute V Musa Nakirya HCRC No. 7/2009

3. George William Kateregga versus Commissioner Land Registration &

Others HCMA No. 347/2013

4. Joyce L. Kusulakweguya V Haida Somani & Anor. HCMA 40/2007

5. Livingstone Sewanyana V Martin Aliker SCCA No. 4/1990

6. John Genda & 53 Othrs V CMB [1997] KALR 15

7. Hassanali V City Motor Accessories Ltd ^ Othrs [1972] EA 423

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

unreported)

9. Gordon Sentiba & Othrs V IGG CACA NO. 14/2007

10. Morris Ogwal & Othrs V AG HCMA NO. 456/07

11. National Bank of Kenya V Njau [1995-98]EA 248

12. Touring Cars (K) Ltd V Munkanji [2000] 1EA 260

13. Shiv Construction Co. Ltd vs. Endesha Enterprise HCCS NO. 102

14. Adonia vs. Mutekanga [1970] EA 429

15. In re Nakivubo Chemist (U) Ltd Supra n Yusuf vs. Nokrach [1971]
EA

16. Levi Outa vs. UTC [ 1975] HCB 340

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

1983 ( unreported)

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18. Kwesigabo, Bamwine & Walubiri Advocates V NYTIL

PICFARE[1998] I KALR 43

19. Busoga Growers Co-operative Union Ltd V Nsamba & Sons Ltd
HCMA No. 123 of 2000

20. Engineer Yorokamu Katwiremu V Elijah Mushemeza 7 othrs

[1997] II KALR 66

21. Nakagwa V Dominico Kiggundu (1978) HCB 310

22. Baguma vs. Kadoma [1979] HCB 340

23. Buladina Nankya vs. Bulasio Konde [1979] HCB 239

24. Abdulla Jaffer Davji vs. Ali RMS Devji [1958] EA 127

25. Erimiya Serunkuma vs. Elizabeth Nandyose [1959] EA 127

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

1995 ( unreported)

27. Bagumirabingi JOHN V HOIMA T/C HCMA No. 826 of 2004

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

29. RE Nakivubo Chemists [1961] EA 60

30. Yusuf V Nokrach (1971) EA 104

31. Matemba vs. Yamulinga [1963] EA 643

32. Sandar Mohamed vs. Charan Singh [1959] EA

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

34. Engineer Yorokamu Katwiremu V Elijah Mushemeza [1997-2001]

UCLR 66[R]

35. Busoga Growers Co-operative Union Ltd V Nsamba & Sons Ltd
[1997-2001] UCLR 218 R

REVISION OF JUDGEMENTS /DECISIONS

1. Paskal Juma Wasike versus Alex Onyango HCMA No. 04/2010

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2. Munobwa Mohamed V Uganda Muslim Supreme Council

Revision No. 1 of 2006

3. Karia vs. Wambura [ 961] EA91

4. Muhinga Mukono vs. Rushwa Native Farmer Co-op Soc. Ltd

[1959 ] EA 595

5. Kabwengure vs. Charles Kanjabi [1977] HCB 89

6. Juma vs. Nyeko [1992] KALR 78

7. Mubiru vs. Kayiwa [1988-90]

8. Mwatsahu vs. Maro [1967]EA 42

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

2001 at Mbarara (unreported)

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

11. LDC vs. Edward Mugalu [1990-91] 1KARL 103

12. Gulu Municipal Council V Nyeko & Othrs HCMA No.5/1997

13. Eriazali V Dodovico [1973] 1 ULR 134

14. Kabwengure V Charles Kanjabi (1977) HCB 89

15. Nangunga Livestock Co-operative Society Ltd V Energo

Projekt HCCS No.207 of 1993

16. Muhinga Mukono v Rushwa Native Farmers Co-op Society

Ltd [1959] EA595

17. Mubiru v Kayiwa [1975] HCB

18. SGS Societe Generale De Surveillance SA V VIP Engineering

& Marketing Ltd [2002] 1EA 264

19. Kitandwako V Biraro [1977] HCB 70

20. Ado Tayebwa V Eldard Bagonzya [1992-93] HCB 143

21. Obadi Entrprises Ltd V URA & Anor. HCCS No. 938/1993

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APPEALS [GENERAL PRINCIPLES AND POWERS OF 1ST 2ND AND 3RD

APPELLATE COURTS

1. F.X MUBUUKE V UEB HCMA NO. 98/2005[ meaning of an appeal

2. KEMISA SENYA V JANMOHAMMED JAFFAR Ltd SCCA No.

6/1997[time for commencing an appeal]

3. STANBI BANK (U) Ltd V ATYABA AGENCIES SCCA

NO.2/1995[Parties to an appeal]

4. Baku Rafael & Anor. V AG Const. Appeal No. 1/2008

5. Pius Niwagaba V LDC CACA No. 18/2005

6. MARIA NALIKKA MPINGA & OTHRS V ERNEST SENSALIRE

&OTHRS CACA NO. 10/2001

7. Uganda Breweries V Uganda Railways Corp SCCA No. 6 of 2001

8. Robert Coussens V AG SSCA No.8 of 1999

9. Francis Sembuya V Allports Services (U) Ltd SCCA

No.6/1999[fresh evidence

APPEALS IN LOCAL COUNCIL COURTS [INCLUDING

INTERLOCUTORY APPLICATIONS

1) Jenniffer Kyomuhendo V Teddy Twinomugisha HCRO.NO.

1/1994[appeals from LC Courts
2) FIDA BIRABWA V SULEIMAN TIGAWALANA HCCA
NO.2/1992[appellate jurisdiction of LC Courts

APPEALS IN MAGISTRATES COURTS AND FROM MAGISTRATE’S

COURTS TO HIGH INCLUDING INTERLOCUTORY APPLICATIONS

1. Agastafa Kiganira versus Kagenda Haruna HCC Appeal

No.046/2011

2. Sekyali versus Kyakwambala Civil Appeal No.07/2010

3. William Kisembo & Anor. Versus Kiiza Rwakaikara HC Civil

Appeal No.07/2013

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4. Authur Tindimwebwa VersusMuhereza & Anor. Civil Appeal

No.55/2010

5. Tight Security Ltd Versus Chartis Uganda Insurance Co. HCCA

No. 14/2014

6. Nabudde Versus Kikumi HCCA No. 0072/2013

7. Tumuhairwe Versus Electoral Commission HC EPA No. 02/2011

8. Sarah Kintu Versus Jombwe Sebaduka Red HCCA No. 025/2011

9. Eleko Balume Versus Goodman Agencies Limited HCMA No.

12/2012

10. Buso Foundation Limited versus Maate Bob Phillips CA

No.0040/2009

11. Orient Bank Limited Versus AVI enterprises Limited HCCA No.
002/2013

12. Y. GUMISIRIZA V HAJJI MOHAMMED KAJUNJURE HCCA

NO.5/1994[appeals from MC to HC

13. EDURIA KEMIGYENDE V JOVIA KABUKANGWA HCT CA

No.2/1997[appeals from MC to HC

14. NAWEMBA SULAIMAN V BYEKWASO MAGENDA [1989] HCB 140[

procedure of appealing to HC

15. GODFREY TUWANGYE KAZZORA V GEORGINA KITARIKWENDA

[1992-93] HCB 145.

1. Robert Biiso V May Tibamwenda [1991] HCB 92 [appeal to H,C]

2. Haji Mohammed Nyanzi V Ali Segne [1992-1993] HCB 218[Appeal

to H.C

3. Re William Naikabona [1976] HCB 242[ App to H.C with leave

16. James Bunwa V Bayeshymbaho [1976] HCB 236[Leave

17. ABAHO TUMUSHABE V STANLEY BEINEABABAO [1996] III KALR

5

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18. NTEGE MAYAMBALA V CHRISTOPHER MWANJE HC MISC APPL.

72/1991

19. BITARABEHO V DR. EDWARD KAKONGE [1997] HCB 55 CA

APPEALS FROM ORDERS OF REGISTRARS TO THE HIGH COURT

APPEALS FROM ORDERS OF REGISTRARS TO THE HIGH COURT

1. Jackson Kikayira versus Rosemary Nalubega Civil Ref. Appeal no.

404/2014

2. Bonney Mwebesa Katatumba versus Shumuk Springs

Development Ltd & Anor. HC Civil Ref. No. 0327/2014

APPEALS FROM ORDERS & DECREES OF THE HIGH COURT TO

COURT OF APPEAL INCLUDING INTERLOCUTORY APPLICATIONS

1. Gaba Beach Hotel LTD V Cairo International Bank LTD CA Civil

Appl. No 34/2003 [Notice of appeal]
2. Mohammed v Roko Construction Ltd. S.C.C.A No 1/2013, pages 6-
8.
3. Mwiru Paul Versus Hon Igeme Nathan Nabeta EPA No.6/2011 CA
4. Dr. Ahmed Muhammed Kisuule V Greenland Bank in Liquidation
Civil Application No.10/2010
5. UNEB V Mparo General Contractors Ltd CAC Ref No.99 of 2003
6. Narrotham Bhatia & ANOR. V Boutique Shazim Ltd CACApp No.
64/2008[ effect of order of extension of time
7. Dr. Frank Nabwiso V Electoral Commission EP Application No.
25O of 2011[filing record of appeal and payment of fees and
security for costs
8. Wanume David Kitamirike V URA Civil Appl No.138/2010 CA
[certificate of registrar/ time for lodging appeal
9. NHCC Ltd Vs. Kyomukama Civil Appl No. 133/2009 CA [letter for
proceedings
10. Moses Ingura Vs. Othrs V LDC HCMA No.133 of 2005
11. LDC V Pius Niwagaba & Others CACApp No.89 of 2006
12. The Most Rev Nkoyoyo V Ziraguma Emanuel & 2 Othrs
CACA No.7 of 2004[grounds of appeal
13. Uganda Railways Corp V Ekwaru D.O & 5104 Othrs CACA
No.185 of 2007

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14. Jaspal Singh Sandhu V Noble Builders & Anor. SCCA No. 13
of 2002
15. Monday Eliab V AG Civil Appeal No. 16/2010
16. URA Vs. Uganda Consolidated Properties Ltd CA No.
31/2000 CA
17. Kampala City Council Vs. National Pharmacy Ltd (1979)
HCB 215
18. Hon. Rose Akol Okullo & Anor. V Among Annet Anita EP
Appl No.35/2007
19. Mandela Auto Spares V Marketing Information Systems Ltd
CACA REF NO. 74/2008[ interim order of stay] Reference to single
judge
20. Software Distributors (AFRICA) LTD & Anor. Kambaho Perez
CACA No. 76/2006[ interference with discretion)
21. Henry Kasamba V Yakobo Rutaremwe CACA No. 05/2008[
no decree and leave in 2nd appeals to CA
22. LAWRENCE MUSITWA KYAZZE V EUNICE BUSINGYE
SCCApp No. 18/1990[ stay pending appeal]
23. UNEB V Mparo General Contractors Ltd SCCA NO.19 OF
2004 [time]
24. UTEX Industries LTD V AG SCCA 52 /1995
25. Muwulize Norman V Anthony Kanyike CAC Ref. No.
07/2007[ fresh Evidence in CA]
26. DFCU BANK LTD V DR. ANN PERSIS NAKATE LUSEJJERE
CA CIVIL APL. NO. 29/202
27. Francis Sembuya V Allports Services (U) Ltd SCCA
No.6/1999[fresh evidence
28. Navichandra Kakubhai Radia V Kakubhai Khalidas & Co.
Ltd SCCA No. 10/94 [ fresh evidence on appeal only with leave
29. Alley Route V UDB HCT CCMA No.0634/2006[ leave to
appeal]
30. Sango Bay Estates Ltd & Othrs V Dresdenor Bank AG (1972)
EA 17
31. Degeya Trading Stores (U) Ltd V URA CACApp No.16 of 1996
32. The Commissioner General of URA V Meera Investments Ltd
HCMApp No.359 of 2006
33. Board of Governors of Gulu S.S .S V Phinson E. Odongo &
Anor. [191] HCB 85 [fresh evidence on appeal]

APPEALS FROM COURT OF APPEAL TO SUPREME COURT

INCLUDING INTERLOCUTORY APPLICATIONS

1. Kabale Housing Estate Tenants Association Ltd Versus Kabale

Municipal Local Government Council CAC Appln No. 15/2013

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2. UNEB V Mparo Gen. Contractors SCCA No. 8.1991

3. GODFREY MAGEZI AND BRIAN MBAZRA V SUDHIR RUPARELA

SCCA NO. 6 OF 2003 [extension of time]

4. Kasaala Growers Co-op. Society V Jonathan Kalemera and Anor

SCC Application No.19/2010
5. Kasaala Growers Co-op. Society V Jonathan Kalemera and Anor
SCC Application No.24/2010

6. .B Chemical and Pharmaceutical Industries Ltd Vs. Glaxo Group

Ltd SCCA No.18/2004 [ROA

7. Mulowooza & Bros Vs. N. Shah & Co. Ltd SCC Application
No.20/2010

8. Barclays Bank of Uganda V Eddy Rodrigues [1987] HCB 36 [ROA

9. TIBEBAGA V Fr. NARSENSIO BEGUMISA & OTHRS SCCA NO.

18/2002[extension of time

10. J.W KAZOORA V MLS RUKUBA SCCA NO. 4 /1991

11. AG & ULC V CHARLES MARK KAMOGA SCCA No.8 of 2004

12. BEATRICE KOBUSINGYE V PHIONA NYAKANA SCCA

5/2004;[appeals to the supreme court]

13. AG V APKM LUTAAYA SCC. APP NO. 12 OF 2007[extension of

time

14. ORIENT BANK V F. JK ZAABWE SCCA NO.19/2007 [interim stay.

15. Hon. William Oketcho V George Owor SC Constitutional Appl No.

02/2011

16. AG & ULC V JAMES MARK KAMOGA & ANOR SCCA No. 8/2004

17. Molly Kyalukinda Turinawe and Others V Eng. Ephraim Turinawe

Civil Application No. 27/2010[ time]

18. Flora Rwamarungu Vs. DFCU Leasing Co. Ltd Civil Application
No. 11/2009 [interim order]

19. Akright Projecks Limited V Executive Property Holdings Ltd SCCA

No. 03/2011 [stay]

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20. JOYCE MAGUTA V IDAH ITERUHA SCCAPP No. 09/2006[ stay

21. G. AFARO V Uganda Breweries Ltd SCCAPP No. 12 /2008 [interim

stay

22. Sitenda Sebalu V Sam K. Njuba EPA No. 26 of 2007 SC [ Record of

appeal and extension of time

23. The executrix of of the estate of the late Chrstine Mary Namatovu
Tiaijukira & Anor. V Noel Grace Shalita Stanaz [1992-1993] HCB
85[extension of time]

24. Godfrey Magezi & Anr. V Sudhir Rupaleria SCCAPP No. 10 of 2002

Other relevant cases on appeals

1. GM COMBINED V A K DETERGENTS HCCS 384/1994

2. STANDARD PRINTERS AND STATIONERS LTD V CACA
40/2000
3. DR. RUBINGA V YAKOBO KATO AND 2 ORS SC CA 35
/1992
4. BITARABEHO V DR. EDWARD KAKONGE [1997] HCB 55
CA
5. PETER MULIIRA V MITCHELL COTTS CACA No.15 of 2002
6. NTEGE MAYAMBALA V CHRISTOPHER MWANJE HC MISC
APPL. 72/1991
7. DR. RUBINGA V YAKOBO KATO AND 2 ORS SC CA 35
/1992
8. LAWRENCE MUSITWA KYAZZE V BUSINGYE SCCA
No.18/1990
9. HANNINGTON WASSWA & ANOTHER VS. MARIA OCHOLA
AND OTHERS SUPREME COURT MISC. APPLICATION NO.
12 OF 1988
10. THE EXECUTRIX OF THE ESTATE OF THE LATE
CHRISTINE NAMATOVU TEBAJJUKIRA AND ANOTHER VS.
NOEL GRACE SHALITA STANANZI [1992-1993] HCB 85;
11. FRANCIS NYANSIO MICAH V NUWA WALAKIRA SCCA
No. 24/94]NOA
12. Barclays Bank of Uganda V Eddy Rodrigues SCCA No.
5 of 87
13. Impressor Fortunato Federick V Irene Nabwire SCCA
No. 3 of 2000[cross appeal]
14. Kengrow Industries V Chandan SCCA No.7 of 2001
15. MAKULE INTERNATIONAL V HE CARDINAL
NSUBUGA WAMALA & ANOR [ 1982] HCB 11

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16. G.M Combined (U) ltd vs. A.K Detergents ( U) Ltd.

Civil Application 0.23 of 1994 (unreported) [fresh evidence
17. Mbogo and Others vs. Shah [ 1968] EA 93[ discretion
18. Patrick Makumbi V & Nakibuuka Enterprises V Solle
Elecronics (U) Ltd CACA No. 11/194
19. J. Hannington Wasswa vs. M. Onyango Ocholo [1992-
93] HCB 103 ( SC).
20. Shiv Construction Co. Ltd vs. Endesha Enterprise
Application SCCA Appl. No. 15/92 ( Unreported)
21. Plaxenda Sembatya vs. Tropical African Bank SCCA
No. 6 of 1987 (unreported)
22. Jaspal Singh Sandhu V Noble Builders (U) Ltd SCCA
No. 13/2002
23. Dharansy Mararji and Sons Ltd. Vs. S.N Kara SCCA
No. 27 of 1996 (unreported)
24. Narritham Bhatia & Anor. V Boutique Shazim Ltd
CACApp No.31 of 2007
25. KCC V National Pharmacy Ltd [1979] HCB 216 [
Institution of appeal]

TOPIC NINE JUDICIAL REVIEW PROCEDURE

1. Picfare Industries Ltd v s AG & Ors HCMC NO. 258 of 2013

2. Re application by Mustapha Ramathan for orders of certiorari,

Prohibition and Injunction, Civil Appeal No. 25 of 1996

3. Pius Niwagaba Versus Law Development Centre Miscellaneous

Caus No. 125 of 2005,

4. Micro Care Ltd vs Uganda Insurance Commission HCMA No.

31/2009.

5. UTODA vs KCCA & Anor HCMA no. 137 / 2011.

6. Lex Uganda Advocates & Solicitors Versus Attorney General
Miscellaneous Application No. 322 of 2008
7. Muwanguzi vs URC HCCMC 003 of 2012
8. .Benon Biryahwaho & ors vs the PS ministry of Health & 2 ors .

9. Kule Joseph Andrew and ors v sag HCMC No. 106 / 2010

10. Charles Sensonga Muwanga V Budesian Kyabangi Bamwera

HCMC No.131/2010

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11. Aggrey Bwire V AG &Anor. CA No. 09/2009 CA

12. Hon Justice Okumu Wengi versus AG HCMA No.233/2006

13. HAJI ERISA MAYANJA NJUKI V EC EPA No.02 of 2002

14. JOHN JET MWEBAZE V MUK & OTHRS HCCA No. 78/2005

TOPIC 10: CONSTITUTIONAL LITIGATION

1. George Awor Vs Attorney General Constitutional Application No.

38 of 2010
2. Ismail Serugo Versus KCC & Another Supreme court
Constitutional Appeal No. 2 of 1998
3. Hon. Ltd (Rtd) Saleh M.W Kamba & Others Vs. AG and Others
Constitutional Applications No. 14 and 23 of 2013
4. Attorney General Versus Tinyefuza Constitutional Appeal No. 1 of
1997
5. Anifa Kawooya Versus Attorney General & Another Constitutional
Petition No. 42 of 2010.
6. Baku Raphael Obudra Versus Attorney General Constitutional
Petition No. 1 of 2003
7. Sarapio Rukundo Versus Attorney General Constitutional Petition
No.3 of 1997
8. The Uganda Law Society & Anor. Versus Attorney General
Constitutional Petition No. 2 of 2002
9. Paul Ssemwogerere & Another Versus Attorney General
Constitutional Appeal No. 1 of 2000
10. Katheleen Byrne v Ireland And The Attorney General
(1972)J.R
11. R0/133 Maj. Gen. James Kazini and The Attorney General
Constitutional Court Application No.4 of 2008
12. Tusingwire Versus Attorney General Constitutional Application
No. 06 of 2013

13. Al Hajji Nasser Ntege Sebaggala v Attorney General and Others

(Constitutional Petition No. 1 of 1999),

14. Karugaba v Attorney General – Constitutional Appeal No. 1 OF

2004 [2006]
15. Uganda Projects Implementation and Management Centre Vs.
URA Constitutional Petition No. 18/07 (Reference)

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16. Attorney General Versus George Owor Constitutional Appeal No.

01 of 2011

17. Baku Raphael Obudra and Obiga Kania v The Attorney General
(Constitutional Appeal No.1 of 2003) [2003]

18. Saverino Twinobusingye Versus Attorney General

Constitutional Petition No. 47 of 2011,
19. George Awor Vs Attorney General & Another Constitutional
Petition No. 038 of 2010,

20. Kyamanywa Simon vs. Uganda Supreme Court Appeal No. 1166 of
1999 (unreported)

21. Joseph Ekemu & David Kadidi Kamwada vs. Uganda

Constitutional Reference No. 1 of 2000 (unreported)

22. Arutu John vs. Attorney General Constitutional petition No. 4 of

1997 (unreported)

23. Charles Onyango Obbo vs. Attorney General constitutional

petition No. 15 of 1997 (unreported)

24. Uganda Journalist safety Committee vs. Attorney General

Constitutional Petition No. 6 of 1997 (unreported)

TOPIC 11: The Law, Procedure and Practice in Election Petition

1. Bakaluba Peter Mukasa vs Nambooze Betty Bakireke EPA No.

4/2009 Supreme Court of Uganda.
2. Mukasa Anthony Harris vs Dr. Bayiga Michael Philip Lulume EPA
No. 18/2007
3. Mbayo Jacob Robert Vs. Electoral Commission EPA NO. 07/06.
4. Mwiru Paul Vs. Hon Igeme Nathan Nabeta EPA No.06/2011
5. Abdul Bangirana Nakendo Vs. Patrick Mwondha SC EPA
No.09/2007;
6. Iddi Kisiki Lubyayi v Sewankambo Musa Kamulegeya EPA
No.8/2006 CA;

3. Ahmed Kawooya Kaugu vs. Bangu Aggrey Fred Election Petition

Appeals Nos.5/2006 & 9/2006.

TOPIC 12 Procedure, Practice & Proceedings at the East African

Court of Justice

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1. Anita Among Versus AG of Uganda and Others Ref. No. 6/2012

(EACJ)

2. Abdul Katuntu Versus AG of Uganda and Others Ref. No. 5/2012

(EACJ)

3. Rev Christopher Mtikila Vs AG ( HCCS NO. 5 / 1993

4. AG of Tanzania Vs African Network for Animal Welfare Appeal No.

3 of 2011

5. Calist Mwatela & 2 others Versus EAC Application No. 1 /2005

6. Democratic Party & Mukasa Mbidde Versus The Secretary General

of the East African Community and the Attorney General of the
Republic of Uganda Reference No. 6 of 2011,
7. Modern Holdings (EA) Limited Versus Kenya Ports Authority
Reference No. 1 of 2008
8. Katabazi and Others Versus The Attorney General of the Republic
of Uganda and Secretary General of the East African Community
Reference No. 1/2007 ;
9. Prof. Anyang’ Nyongo & Others –vs- The Attorney General of the
Republic of Kenya & Others Ref. No.1/2006
10. East African Law Society and 3 Others Versus the Attorney
General of the Republic of Kenya and 3 Others Reference No. 3 of
2007

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Topic 1 –Summary procedure

SUMMARY PROCEDURE-O.36 CPR

Scope of Application of Order 36

According to Order 36 r 1 CPR the order applies to the High Court and
magistrates Courts. However, although the rule provides for Magistrates
courts, the Order does not apply to magistrate grade II and III. This is
because they have their rules under the Magistrates Courts Act Cap. 16.

In the case of Nakabago Co-op Society vs. Livingstone Kyanga

H.C.C.S. 4/1991 Court held that the civil procedure rules which
provides for summary suits are inapplicable in courts presided over by
Magistrates Grade 2 and 3. The applicable rules are set out in the
schedule 3 of the Magistrates Courts Act. That the entire proceedings
were a nullity and the property attached was to be restored to the
rightful owner pending the outcome of the properly filed suit.

The order may be invoked by the government as the plaintiff (Attorney

General) but no suit can be commenced against the Attorney General by
way of summary suit. Rule 17(2) of the Government proceedings (Civil
Procedure) rules SI 77-1 bars a summary suit against the government
but allows government to commence one against any other person.

It therefore follows that whereas a default judgment may be obtained

against the government under the provisions of O.9 r 6 CPR no such
judgment can be obtained against the Attorney General under O.36 CPR.

The Rationale for Summary Procedure

Summary procedure is intended to enable a plaintiff with a liquidated

claim to which there is clearly no good defense to obtain a quick and
summary judgment without being necessary kept from what is due to

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him by delaying tactics of the defendant. Trial, as a rule, must precede

judgment. Under summary procedure, instead of trial first and then
judgment, there is judgment at once and never a trial.

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.

In the case of Zola & Anor vs. Ralli Brothers & Anor [1969] EA 690 the
Court of Appeal held that Order 33 (now 36) is intended to enable a
plaintiff with a liquidated claim, to which there is clearly no good
defense, to obtain a quick and summary judgment without being kept
from what is due to him by the delaying tactics of the defendant. If the
judge to whom the application is made considers that there is a
reasonable ground of defense to the claim the plaintiff is not entitled to
summary judgment.

In the case of Isse Shekhnor Roble & Anor vs. M.M.M Agro Dealers
Ltd HCMA No. 514/2014 Justice Madrama stated that the purpose of
O.36 which enables summary suits is expounded by Parker LJ in the
case of Home and Overseas insurance Co Ltd vs. Mentor Insurance Co
(UK) Ltd inn Liquidation [1989] 3 ALLER 74 at page 77 that the purpose
of Order 14 is to enable a plaintiff to obtain a quick judgment where there
is plainly no defense to the claim.

Nature of claims for which Summary Procedure is Suitable

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Under O.36 r 2 summary procedure is applicable in the following two

circumstances;

a) where the plaintiff seeks only to recover a debt or liquidated

demand in money payable by the defendant, with or without
interest e.g. upon a contract, expressed or implied, bonds,
guarantees, trusts and debts for income tax.
b) being actions for the recovery of land, with or without a
claim for rent or mesne profits, by a landlord against a
tenant whose term has expired or has been duly determined
by notice to quit, or has become liable to forfeiture for
nonpayment of rent, or against persons claiming under the
tenant.
i. where the plaintiff seeks only to recover a debt or
liquidated demand in money payable by the defendant,
with or without interest e.g. upon a contract, expressed or
implied, bonds, guarantees, trusts and debts for income
tax.

In the Supreme Court case of Post Bank (U) Ltd vs. Ssozi SCCA No.
8/2015 Tumwesigye JSC 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. That
in this case, the learned judge was right to entertain the plaint under
summary procedure because the pleadings of fraud in the plaint was not
essential to the claim. The claim is based on contract executed between
the appellant and the 1st and 2nd respondent as agent of the respondent.
It is for a liquidated demand of money.

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What is a liquidated demand

It is trite law that summary procedure should be resorted to in clear and

straight forward cases where the demand is liquidated.

In the case of Twentsche Overseas Trading Co. Ltd vs. Bombay

Garage [1958] EA 741 it was held that it is trite law that summary
procedure should only be resorted to in clear and straight forward cases
where the demand is liquidated and where there are no points for the
court to try.

In the case of Simon Yiga vs. Fina Bank HCMA No. 58 of 2012 the
issue was whether the suit was proper in the circumstances to proceed
with by way of summary procedure when the rules and case law
authority state that the amount must be liquidated. Justice Hellen
Obura (as by then) stated as follows;

Black’s Law Dictionary 8th Edition defines liquidated

amount as ‘‘a figure readily computed, based on an
agreement’s term’’. It is stated in ‘‘The Annual
Practice’’ 1966, Sweet & Maxwell, London that a
liquidated demand is in nature of a debt, a specific
money due and payable under or by virtue of a contract
which is either already ascertained or capable of being
ascertained as a mere matter of arithmetic. It is also
stated in ‘‘The Supreme Court Practice’’ 1966, Sweet &
Maxwell, London that;

‘‘…if ascertainment of a sum of money even though it be

specified or named as a definite figure, requires
investigation beyond mere calculations, then the sum is

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not a debt or liquidated demand but constitutes

damages’’.

It was held in that case the circumstances of the case where the agreed
interest rate was a much lower rate offered for the staff, once that rate
was changed unilaterally by the respondent, the amount due and
payable cannot be ascertained by mere calculation but require more
investigation into the interest rate applied. See E.M Cornwell & Co. Ltd vs
Shangtaguari Dahyabhai Desaib (1941) 6 ULR 103 and Haji Arjabu
Kasule vs. F.T. Kawesa [1957] EA 611 where it was held that interest
cannot be claimed in a suit under Order 33 (now 36) unless it is based
on an agreement for interest in the document sued on, or on a statute.
That the document sued on in this case provides for interest of 9% but
what is claimed is based on other interest that was subsequently charged
by the respondent without the applicant’s consent.

In the case of Among vs. Ndagiro HCMA 972 OF 2013 Court adopted
the Black’s Law Dictionary 8 th Edition defines liquidated amount as ‘‘a
figure readily computed, based on an agreement’s term’’

Legal effect and procedure where claim is both liquidated &

liquidated

Court proceeds in a summary manner with respect to the liquidated claims

of a plaintiff, while leaving the ordinary procedure to apply to the un
liquidated claim.

In the case of Hanani Moezali vs. Moez Ramani HCCS No. 416/2001
the issue was whether and how a summary suit that includes both a
liquidated claim and un liquidated claim may proceed. Justice Ogoola
held that the better course is to judiciously apply the principle of
severability as established in the Dela Pasture case. That the amount of

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rent claimed should be proceeded under summary procedure, while the

un liquidated amount of interest could be proceeded under ordinary
nature. That in so doing court is wholly cognizant of the fact that once a
defendant is given leave to file a defense in a summary suit, the suit
thereupon is ipso facto, transformed into an ordinary suit anyway. In
other wards summary procedure is valid only as long as the defendant is
denied leave to file a defense to the suit.

In the case of Pan Afric Commodities Ltd vs. Sam Bisase & Co. UCC
M/A 508 of 2005 Egonda Ntende, J entered judgment for part of the
sum claimed in the plaint and granted leave to file a defense in respect of
a sum of shs. 3m which was not a liquidated amount and had to be
proved by evidence. (See also Gupta vs. Continental Builders Ltd [1978]
KLR 83)

ii. being actions for the recovery of land, with or without a

claim for rent or mesne profits, by a landlord against a
tenant whose term has expired or has been duly
determined by notice to quit, or has become liable to
forfeiture for nonpayment of rent, or against persons
claiming under the tenant.

In the case of Muluku Interglobal Trade Agency Ltd vs. Bank of

Uganda [1985] H.C.B 65 Odoki J (as by then) held that Order 33
(now 36) rule 2 CPR clearly envisages actions for recovery of land, rent
or mesne profits where the relationship of landlord and tenant exists
or had existed. That there would therefore be no dispute to the title of
the landlord or the amount of rent payable. In these circumstances
summary procedure would provide an ideal quick remedy to the
landlord to recover possession of the property or rent due.

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In the case of Busingye & Co. Ltd vs. Muye MA No. 87/2011
Tuhaise J held that summary procedure under O.36 r 2 CPR clearly
envisages actions for recovery of land, rent or mesne profits. The
wording of the rule is clear. The action can be ‘for recovery of land,
with or without claim for rent or mesne profits’. That this infers that the
claim for recovery of land can stand on its own under summary
procedure. In view of the wording of the rules, a claim for recovery of
land alone can be instituted by way of summary procedure under
O.36 r 2 CPR. It provides an ideal quick remedy to the landlord to
recover possession of the property or rent due.

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.

Default Judgment under O.36

Under O.36 r 3 CPR Court shall cause to be served upon the

defendant summons. The general rule is that the defendant does not
appear and defend the suit except when applying for and obtaining
leave from the court.

In default of the application by the defendant or by any of the

defendants (if more than one) within the period fixed by the summons
served upon him or her, the plaintiff shall be entitled to a decree for
an amount not exceeding the sum claimed in the plaint, together with
interest, if any, or for the recovery of the land (with or without mesne
profits) as the case may be, and costs against the defendant or such

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of the defendants as have failed to apply for leave to appear and

defend the suit.

In the Supreme Court case of Post Bank (U) Ltd vs. Ssozi SCCA No.
8/2015 Tumwesigye JSC held that if the defendant fails to apply for
leave to appear and defend in time prescribed (which is 10 days), the
plaintiff is entitled to a decree for an amount claimed in the plaint with
interest, if any. (O.36 r 3(2). That in the instant case, the defendant failed
to apply for leave to appear and defend the suit, therefore, the appellant
was entitled to a default judgment and a decree for the amount claimed
in the plaint with interest claimed.

Note:-

 The claim set out in the specially endorsed plaint must be

liquidated in nature and one that falls within the claims set out in
O.36 r 2 CPR.
 Summons must have been served and issued on the defendant(s)
in the manner provided in the rules and there must be evidence of
service-O.5 r 16 CPR
 The 10 days within which the defendant is supposed to apply for
leave to appear and defend must have lapsed without the
defendant filing such an application or any seeking extension of
time. Edison Kanyabwera V Pastori Tumwebaze SCCA No.6 of
2005
 The plaintiff must formally move court by way of a letter addressed
either to the registrar, if the matter is in the high court or the trial
magistrate in case of the magistrate court. NB; look at the Practice
Direction No. 1/2002 Judicial Powers of the Registrars.

Applications for Leave to Appear and Defend

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j) Procedure of Application

Under O.36 r 3(1) CPR a defendant served with the summons shall not
appear and defend the suit except upon applying for and obtaining leave
from the court. O.36 r 4 requires an application for leave to appear and
defend the suit to be supported by affidavit, which shall state whether
the defence alleged goes to the whole or to part only, and if so, to what
part of the plaintiff’s claim, and the court also may allow the defendant
making the application to be examined on oath.

In the case of Francis Wazarwahi Bwengye vs. Haki. W. Bonera HCCA

33/2009 Justice Yorokamu Bamwine stated that all applications to
court, except where otherwise expressly provided for under the civil
procedure rules, are by motion to be heard in open court. O.52 r. 1 of the
CPR is very clear on this. Secondly, applications for leave to defend are
provided for under O.36 r 4 CPR. That the appellant’s application was
preferred under O.41 r 1,(2) which governs applications for temporary
injunctions. Clearly therefore the application was defective on account of
being preferred under a wrong law. That since Order 36 does not provide
for the mode of preferring the application, then under O.52 it should
have been by Notice of Motion.

In the case of Ready Agro Suppliers Ltd and Others vs. Uganda
Development Bank Ltd HCMA 0379/2005 Justice Egonda Ntende held
that O.33 (now 36) r 4 sets out what applicants must do, if they seek
leave to appear and defend. That he / she must state by affidavit whether
the defense alleged goes to the whole or to part only of the plaintiff’s
claim, and if only part, which of the plaintiff’s claim. The response must
be specific and not general or evasive, so as to leave no one in doubt, as
to the extent of the plaintiff’s claim that the defendant genuinely
disputes.

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k) Time for Filing the Application

O.36 r 3(2) CPR the defendant is required within the period fixed by
the summons to make an application for leave to defend the suit.
Form 4 of Appendix A of these Rules require the defendant to apply
for leave from the court to appear and defend the suit within ten days
from the service of this summons.

In the case of Uganda Telecom Ltd vs. Airtel Uganda Ltd HCMA 30
of 2011 Justice Hellen Obura considered the provisions of Order 36
rule 3(1) and (2) of the CPR and the relevant extract from Form 4 of
Appendix A requiring the defendant within ten days from service of
the summons to apply for leave from the court to appear and defend
the suit and held that 10 days prescribed in the summons in
summary suit on plaint is not a practice of court in summary suits so
that it is handled expeditiously. That appendices to the rules are
made by the Rules Committee as part and parcel of the Rules and are
meant to be read together with the rules. That Form 4 in Appendix A
adds what is lacking in rule 3(1) of Order 36 of the CPR and therefore
that rule must be read together with it to be complete. Consequently,
for all intents and purposes the time prescribed in Form 4, is time
appointed or allowed by the rules to which Order 51 r 4 applies.

In the case of Republic Motors Ltd vs. Atlantic Recreation (1982)

HCB 104 Justice Manyindo held that a defendant who wishes to
appear and defend a summary suit must seek leave of court within 10
days of receiving the summons in a summary suit. Court further
noted that time is of essence. Therefore an application made three
days outside the prescribed 10 days was time barred.

l) Applications filed out of time, Consequences and remedy

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Section 96 of the Civil Procedure Act provides for enlargement of time.

In the case of Twentsche Co. Ltd vs. Bombay (1958) EA 741, the
issue was whether court should grant an application for leave to
appear and defend made out of time but before the plaintiff’s
application for judgment. Court held that in view of the general
powers to enlarge time conferred by s.96 CPA which is exercisable
retrospectively and prospectively and the fact the defendant’s
application disclosed a triable issue, the application should be allowed
despite the defendant’s delay.

In the case of Dr. Sheikh Ahmed Mohammed Kisuule vs. Greenland

Bank In Liquidation MA No. 2 of 2012 was an application for
extension of time. Justice Hellen Obura stated that circumstances
under which there was delay in bringing the application cannot be
blamed on the applicant who had instructed lawyers to handle his
case. It was held that there was sufficient ground for failing to bring
the application in time as the reason for delay cannot be blamed on
the applicant.

m) Grounds in Support of Application, Test and threshold

The legal proposition is settled that in an application for leave to

appear and defend, the applicant must prove that there is a bonafide
triable issue of fact or law that he will advance in defence to the suit.

In the case of Churanjilal & Co. vs. A.H. Adam (1950) 17 EACA 92,
the Court of Appeal for East Africa held that a defendant who has a
stateable and arguable defense must be given the opportunity to
state and argue it before court. That principle was considered by the
High Court of Uganda in the case of Maluku Interglobal Trade

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Agency vs. Bank of Uganda [1985] HCB 63 Odoki J (as he then

was) held that;

‘‘Before leave to appear and defend is granted, the defendant must

show by affidavit or otherwise that there is a bonafide triable issue of
fact or law. When there is a reasonable ground of defense to the claim
the plaintiff is not entitled to a summary judgment. The defendant is
not bound to show a good defense on the merit but should satisfy
court that there was an issue or question in dispute which ought to be
tried and court should not enter upon the trial of the issues disclosed
at this stage.’’

In the case of Maria Odido vs. Barclays Bank of Uganda Ltd HC

Misc Application No. 645 of 2008 Mukasa J. followed the above
principle and further observed that at this stage court is not required
to inquire into the merits of the issues raised, however the issue so
raised should be real and not a sham. Court must be certain that if
the fact alleged by the applicant were established there would be a
plausible defense and if the applicant has a plausible defence he
should be allowed to defend the suit unconditionally.

In the case of Miter Investments Ltd vs. East African Portland

Cement Co. Ltd (MA NO.0336 of 2012) Justice Christopher
Madrama referred to the case of M.M.K Engineering Ltd vs.
Mantrust Ltd MA No. 128 of 2012 where the applicant filed the
application for orders that the applicant be granted leave to defend
suit and referred to Odgers’ Principles of Pleadings and Practice in
Civil Actions in the High Court of Justice Twenty-Second Edition pages
71-78 for the principles for leave to defend include the following:

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1. The Applicant must show the court that there is an issue or

question of fact or law in dispute which ought to be tried.(In
Uganda an application for leave to defend a suit under order
36 of the Civil Procedure Rules, must disclose bonafide issues
for trial of questions of law or fact (see Maluku Interglobal
Agency Ltd vs. Bank of Uganda [1985] HCB 65)
2. Where the Defendant shows that there was such a state of
facts as leads to the inference that at the trial of the action he
may be able to establish a defense to the Plaintiffs claim, he
ought not to be debarred of all power to defeat the demand
made upon him.
3. Where the defense that is proposed is doubtful as to its good
faith, the Defendant may be ordered to deposit money in court
before leave is granted
4. Whenever there is a genuine defense either in fact or in law,
the Defendant is entitled to unconditional leave to defend. (If
the Applicant /Defendant has a plausible defense he should
be allowed to defend the suit unconditionally See Abubaker
Kato Kasule vs Tomson Muhwezi [1992-93] HCB 212)
5. General allegations however strongly may be the words in
which they are stated, are insufficient to amount to an
averment of fraud of which any Court ought to take notice. (In
Uganda it has been held that ‘‘In all applications for leave to
appear and defend under Order 33 rules 3 and 4, (now O.36 r
3 and 4) the court must study the grounds raised to ascertain
whether they disclose a real issue and not a sham one, i.e.
the court must be certain that if the facts alleged by the
Applicant / Defendant were established, there would be a

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plausible defence; (See Kireju J in Abubaker Kato Kasule v

Tomson Muhwezi [1992-93] HCB 212
6. The Defendant may in answer to the Plaintiffs claim rely upon
a set off or counter claim. A setoff is a defense to the action.
Where it is a counterclaim, and there is no connection with the
Plaintiff’s cause of action, the Plaintiff may be given leave to
obtain judgment on the claim provided that it is clearly entitled
to succeed upon it and will be put to unnecessary expense in
having to prove it. It is within the courts discretion to stay
execution up to the anticipated amount of the counterclaim
pending the trial of the counterclaim or further order.

In the Supreme Court case of Post Bank (U) Ltd vs. Ssozi SCCA
No. 8/2015 Tumwesigye JSC held that defendants in cases which
fall under O.36 are protected by being given the right to apply to
court for leave to appear and defend the suit. When court receives
their application and is satisfied by the defendant’s affidavit that
the defendant has raised a genuine triable and not a sham or
frivolous issue, it will grant the defendant leave to appear and
defend the suit. (O.36 r 4)

Suing upon a bill of exchange like Cheque, Promissory note

In the case of Miter Investments Ltd vs. East African Portland

Cement Co. Ltd (MA NO.0336 of 2012) Justice Christopher
Madrama referred to the case of Kotecha vs. Muhammed [2002] 1 EA
112 that the Court of Appeal of Uganda held that in a summary suit
the Applicant has to show bona fide triable issue but the situation is
different if the Plaintiff sues upon a bill of exchange. That Justice
Berko of the Court of Appeal held:

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‘‘Under the English Rule the Defendant is granted leave to

appear and defend if he is able to show that he has a good
defence on the merit(s); or that a difficult point of law is
involved; or a dispute as to the facts which ought to be tried;
orb a real dispute as to the amount claimed which requires
taking an account to determine; or any other circumstances
showing reasonable grounds of a bonafide defence. See Saw
v Hakim 5 TLR 72; Ray v Barker 4 Ex DI 279. The Position is
however, different where the Plaintiff sues under a cheque or
promissory Note or Bills of Exchange’’

That the Court of Appeal in Kotecha vs Mohammad at page 118 further

held that a bill of exchange (such as a cheque) is to be treated as cash
and held as follows:

‘‘The English authorities, particularly James Lamont and

Company Limited v Hyland Limited [1950] 1 KB 585; Brown,
Shipley and Company Limited v Alicia Hosiery Limited [1966]
Rep 668, establish that a Bill of Exchange is normally to be
treated as cash. The holder is entitled in the ordinary way to
judgment. If he is a seller who has taken bills for payment, he
is still entitled to judgment: no matter that the Defendant has
a cross claim for damages under the contract of sale or under
other contracts. The buyer must raise those in a separate
action.. .’’

It was held that in light of the dishonoured cheques, the court will grant
conditional leave to the defendant to deposit in court a sum of Ushs.
121,000,000/- within two weeks from the date of the order.

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Attaching a Draft Written Statement of Defense to the Application.

In practice it is sometimes helpful if the intended Written Statement of

Defense is attached to the application for leave to appear and defend.

In the case of UCB vs. Mukome Agencies [1982] HCB 21 the Court of
Appeal per Curiam stated that when applying for lave to appear and
defend a suit it would serve a good purpose if the intended written
statement of defense is annexed to the notice of motion in order to avoid
the unnecessary costs which would of necessity, be incurred on appeal.
It would also help the judge to make up his mind whether to refuse or
grant the application considering the written statement of defense and
the plaint.

In the case of Sterling Travel & Tour Services Ltd & Anor vs.
Millenium Travel & Tour Services Ltd Misc. Appl No. 116 of 2013
was an application seeking unconditional leave to appear and defend a
summary suit. Court stated that it is not mandatory to attach a Witten
statement of defense to the application. That at least Order 36 rule 4 of
the CPR under which this application was brought, does not require an
applicant for leave to appear and defend a summary suit to attach a
written statement of defense to do so. That this is in context in which
Tsekooko J. (as he then was) observed in the case of Acaali Manzi Vs. Nile
Bank Ltd [1994] KALR 123 that when applicants apply for leave to defend
the applicant would do well to attach a draft written statement of defense
showing such a defense.

Judgment upon refusal to give leave.

Under O. 36 r 5 CPR, where, after hearing an application by a defendant

for leave to appear and defend the suit, the court refuses to grant such
leave, the plaintiff shall be entitled as against the defendant to a decree.

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In the Supreme Court case of Post Bank (U) Ltd vs. Ssozi SCCA No.
8/2015 Tumwesigye JSC held If court is not satisfied that the defendant
has raised a triable issue, it will refuse to grant leave to appear and
defend the suit, and the plaintiff will be entitled to a decree in the
amount claimed in the plaint with interest, if any (O.36 r 5)

In the case of Uganda Red Cross vs. Kangaroo (U) Ltd HCMA
919/2014, the application was for leave to appear and defend a
summary suit. The claim was for Ugx. 377,427,200/- a balance
outstanding from a supply of items as indicated in the local purchase
order and delivered to the applicant. The applicant’s contention was that
there was a triable issue; whether there was actual supply. Court held
that the applicant had failed to satisfy court that there is an issue that
ought to be tried to warrant the grant of leave to appear and defend. That
after filing the suit for the sum of Ugx. 553,968,200 the applicant went
ahead and paid the respondent Ugx. 176,541,000/- leaving a balance of
Ugx. 377,427,200. That this a lone shows that the applicant did not deny
indebtedness and the judge wondered why it is at this point that the
applicant questions whether there was actual supply when it already
made part payment. Court entered a summary judgment in favour of the
plaintiff for the sum of Ugx. 377,427,200/-.

Judgment for part of claim, defence as to residue.

Under O.36 r 6 CPR If it appears that the defence applies only to a part
of the plaintiff’s claim, or that any part of his or her claim is admitted,
the plaintiff shall be entitled to a decree immediately for such part of his
or her claim as the defence does not apply to or as is admitted, and the
defendant may be allowed to appear and defend as to the residue of the
plaintiff’s claim.

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In the case of Caltex Oil (U) Ltd vs. Kyobe [1988-1990] HCB 141 Court
held that as to whether the defendant /applicant should be granted leave
to defend part of the indebtedness, the test to be applied was whether he
had disclosed such facts as might be deemed sufficient to entitle him to
defend. The defense which the defendant / applicant was putting forward
in this case was his indebtedness to the plaintiff was not in the amount
claimed in the plaint; this was not contested. That the
defendant/applicant was therefore entitled to defend part of the
plaintiff’s claim which he was disputing.

Conditional or Unconditional Leave

Under O.36 r 8 CPR leave to appear and defend the suit may be given
unconditionally, or subject to such terms as to the payment of monies
into court, giving security, or time or mode of trial or otherwise, as the
court may think fit.

In the case of Kundalal Restaurant vs. Devshi and Co. [1952] 19 EACA
77 the Court of Appeal held that leave will normally be given
unconditionally; it will only be given subject to payment into court where
there is a good ground for believing that the defense is a sham.

In the case of Miter Investments Ltd vs. East African Portland

Cement Co. Ltd (MA NO.0336 of 2012) Justice Christopher Madrama
was held that there are some bonafide questions of fact which have been
raised that ought to be tried in the suit. However in light of the
dishonoured cheques, the court will grant conditional leave to the
defendant to deposit in court a sum of Ushs. 121,000,000/- within two
weeks from the date of the order and the defendant was granted leave on
the above condition to file a defence within 14 days from the date of the
order.

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In the case of Tusker Mattresses U Ltd vs. Royal Care Pharmaceutical

Ltd HCMA No. 38 of 2010 in an application for unconditional leave to
defend the suit. The Court ordered that 505 OF THE Ushs.
400,000,000/- claimed in the plaint in summary suit be deposited in
court before the applicant / defendant files its written statement of
defense which must be filed within 15 days from the date of the ruling.

Orders for further conduct of suit.

Under O.36 r 10 CPR where leave, whether conditional or unconditional,

is given to appear and

defend, the court shall have power to give all directions and make all
orders as to pleadings, issues, and any further steps in the suit as may
then appear reasonable or necessary, or may order the suit to be
immediately set down for hearing.

In the case of Miter Investments Ltd vs. East African Portland

Cement Co. Ltd (MA NO.0336 of 2012) Justice Christopher Madrama
was held that Order 36 rule 10 of the Civil Procedure Rules permits the
court, where leave whether conditional or unconditional is granted, to
give all directions and make all orders as to pleadings, issues, and
further steps in the suit as may appear reasonable or necessary.
Accordingly it is the discretion of court that the parties shall agree on an
independent auditor to reconcile the accounts of the parties relating to
the claim in the suit within one month from the order failure of which the
court shall appoint an auditor after the parties have forwarded three
names that they will have agreed upon to the court for that purpose.

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Setting aside Decree, Leave to appear and defend, setting aside

execution and stay of execution 036R.11

Under O.36 r 11 CPR after the decree the court may, if satisfied that the
service of the summons was not effective, or for any other good cause,
which shall be recorded, set aside the decree, and if necessary stay or set
aside execution, and may give leave to the defendant to appear to the
summons and to defend the suit, if it seems reasonable to the court so to
do, and on such terms as the court thinks fit.

The defendant /applicant should make an omnibus application seeking

setting aside the judgment and decree as well as leave to appear and
defend. It is not prudent practice to merely set aside without including
an order to appear and defend.

a) Applicability;

Applicable where a default judgment has been made and decree

obtained.

In the case of Uganda Telecom Ltd vs. Airtel Uganda Ltd HCMA 30 of
2011 Justice Hellen Obura stated that where a default judgment has
been entered and a decree obtained the appropriate remedy would be to
apply to set it aside under Order 36 rules 11 of the CPR. That the law is
quite clear and there are many authorities to that effect including the
case of Konoweeka Architecture Painters & Buliders Ltd vs. Daniel L.
Mukasa [1976] HCB 222.

b) Procedure of Application

O.52 r 1 CPR except where expressly provided all applications are by

motion.

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In the case of Francis Wazarwahi Bwengye vs. Haki. W. Bonera HCCA

33/2009 Justice Yorokamu Bamwine stated that all applications to
court, except where otherwise expressly provided for under the civil
procedure rules, are by motion to be heard in open court. O.52 r. 1 of the
CPR is very clear on this.

c) Grounds in Support of Application, Test and threshold

Under O.36 r 11 CPR the applicant has to prove that the service of the
summons was not effective, or for any other good cause.

In the Supreme Court case of Post Bank (U) Ltd vs. Ssozi SCCA No.
8/2015 Tumwesigye JSC held that O. 36 r 11 is on setting aside the
decree. In the case of Geofrey Gatete & Anor vs. William Kyobe, SCCA
No. 7 of 2005, the S.C explained reasons for setting aside the decree
under O.36 r 11 stating that ‘..apart from ineffective service of summons,
what the courts have consistently held to amount to good cause is
evidence that the defendant has a triable defense to the suit.’’ That
ordinarily under ordinary suits, once the court has passed a judgment,
the only course of action for losing party is to lodge an appeal against the
judgment in the court of appeal. However, under summary procedure
O.36 r 11 gives the court discretionary power to set aside its own decree
and stay execution or set it aside altogether and grant leave to the
defendant to appear and defend the suit, if the court is satisfied that the
service of summons was not effective ‘or for any other good cause.’ Good
cause has been defined to be some evidence that the defendant has a
triable issue.

In the case of Musa Sbeity & Anor vs. Akello Joan M.A No.585 of
2013 the applicant brought the application for a default judgment and
decree entered by court to be set aside, and be granted unconditional

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leave to defend the main suit. Justice Elizabeth Kabanda considered the
phrase ‘good cause’ that it is not defined in the CPR but defined in
Black’s Law Dictionary, Seventh Edition, as; ‘A legally sufficient reason’’.
That the authors explained that ‘good cause’ is often a burden placed on
a litigant (usually by a court rule or order) to show why a request should
be granted or an action excused. That the phrase ‘‘sufficient cause’’ that
is usually used interchangeably used with the phrase ‘good cause’ has
been explained in a number of authorities. That in the cases of Rosette
Kizito v Administrator General and Others Supreme Court Civil
Application No. 9/86 reported in Kampala Law Report Volume 5 of 1993
at page 4, it was held that ‘‘sufficient reason’’ must relate to inability or
failure to take the particular step in time. That in Nicholas Rouss vs
Gulamhussein Habib Virani & Anor, Civil Appeal No.9 of 1993 (SC)
(Unreported), the Supreme Court laid down some of the grounds or
circumstance which may amount to ‘‘sufficient cause’’. That they include
mistake by an advocate through negligent, ignorance orfprocedure by an
unrepresented defendant and illness by a party.

In the case of Pinnacle Projects Ltd vs Business In Motion

Consultants Ltd Misc Appl No. 362 of 2010 Justice Hellen Obura found
that the Misc application was not properly filed at the high Court Civil
Registry when the main suit under which the application was brought at
the Commercial Division. That the above notwithstanding mistake was
occasioned by the counsel for the applicant and the law has now been
settled that mistake of counsel however negligent cannot be visited on
the litigant and that there many authorities to that effect that bind the
court. That the circumstances of the instant case is one where this
principle can be applied and for that reason mistake of counsel is ‘good
cause’ for setting aside the decree.

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In the case of Kisawuzi Henry vs. Moses Kayondo Misc Appl. No. 45
of 2011 Justice Mulyagonja cited Order 36 r 11 CPR and stated that
what needs to be established therefore is whether or not there was
effective service of summons on the defendant and if that is found in the
positive, then other good cause has got to be established that would
justify the stay of execution, if any, and setting aside of the decree. That
in this case the defendant refused to acknowledge receipt of the process
by placing his hand on the copy for return to court and therefore would
not set aside the decree on the ground that the service of summons and
the plaint was not effected upon the defendant. That then she was left
with the obligation to explore whether the defendant has raised other
‘good cause’ to set aside the decree. That in Sulaiman Nsamba vs. Fred
Balinda HCCS No. 102/98 (unreported), Akiiki-Kiiza, J held that once an
applicant for an order to set aside an exparte decree under Order 33
(now36) rule 1 establishes that he has a defense on the merit of the case,
then in light of all facts and circumstances both prior and subsequent, it
is just and reasonable to set aside the decree. And in Patel v. Cargo
Handling Services Ltd [1994] EA 75 at page 76, Duffas, P.,stated that in
this respect, a defense on the merit does not mean a defense that must
succeed. It simply means triable issues which raise a prima facie defense
and which should go to trial for adjudication.

In the case of Caltex Oil (U) Ltd vs. Kyobe [1988-1990] HCB 141 Court
held that it was endowed with wide and discretionary powers to set aside
a decree obtained under O.33 (now O.36) r 3. However the applicant had
to satisfy court either that there was no effective service or he had to
show any other good cause. Sufficient cause had to relate to the failure
by the applicant to take necessary step at the right time. There was no
hard and fast rule as to what constituted any other good cause. Each
case had to be considered on its own peculiar circumstances.

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In the case of Ahmed Zirondomu vs. Mary Kyamulabi [1975] HCB 337
Court noted that on the strength of the affidavit of counsel for the
applicant where he deponed that counsel didn’t appear because he was
by mistake sitting in a wrong court was a genuine reason. Counsel was
presented from appearing by sufficient cause.

In the case of Ahmos Investment Group of Companies & 4 Ors vs.

Stanbic Bank (U) Ltd HCMA No. 684/2014 the applicant brought the
application by notice of motion under O.36 r 11 and O.5 r 18 CPR
seeking orders that summary judgment in default be set aside,
unconditional leave be granted to applicants and defend the suit, set
aside execution against the applicants. Court observed that the records
show that service was done to the 1st applicant at his place of business
according to the evidence of the process server. That the second
applicant accepted service for himself and on behalf of the 1st applicant.
The 3rd, 4th and 5th applicants were served through substituted service by
order of court. The extended summons were advertised with the daily
monitor and that in both service was effective. It was also court’s finding
that the applicant admitted receipt of double payment in a number of
documents. Court held that the applicants have neither proved a good
cause to warrant setting aside a decree nor depicted the existence of
defenses to warrant the grant of leave to appear and defend the suit.

In the case of Ali Ndawula & Anor. V R.L Jain HCMA No.0624of
2008, the applicant had filed an application for unconditional leave to
appear and defend a summary suit but the applicant and his counsel did
not turn up of the hearing of the application which was dismissed under
O.9 r 22. The applicant then brought an application by notice of motion
under s.98 CPA, O.36 r 11 and O.52 r & 3 CPR seeking orders that the
judgment or orders against the Applicant /1st defendant be set aside, be

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granted unconditional leave to appear and defend. Justice Lameck

Mukasa held that under O.36 r 11 CPR a decree may be set aside for
either (i) no effective service of the summons or (ii) other good cause.
That the applicant instructed his advocates to file an application on his
behalf for leave to appear and defend main suit but the lawyers did not
inform the applicant for having date and did not inform the applicant for
the hearing date and did not attend court on the hearing date resulting
into dismissal of the application. That considering the reasons, the
applicant had a good cause for his failure to personally attend the
hearing and he cannot be condemned for his counsel’s negligence. That
however in the case of Arocha vs. Kassim (1978) HCB 52, it was held that
before setting aside an exparte judgment the court has to be satisfied not
only that the defendant had some reasonable excuse for failing to enter
appearance but that there is merit in the defense or in the case itself.
This holding was cited with approval in Senyange vs. Naks Ltd (1980)
HCB 30. That it is not enough for the applicant to merely deny that he
owes money to the respondent. The affidavit in support seeking leave to
defend the suit the 2nd defendant admits being a guarantor to the
transaction. The court cannot keep a blind eye to the admission on
record. That considering all the above, the application has no merit to
warrant its reinstatement.

Where leave to appear and defend is allowed, the defendant files a

written statement of defense within a period prescribed by court and the
process follows an ordinary suit.

Pre-Entry Exam

2010/2011

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Qn. 45. A defendant who is served with summons in a suit under

summary procedure must take the following essential steps in court to
safeguard his or her interest otherwise a default judgement may be
obtained against him or her:-

2010/2011

Qn. 42. What do you understand by conditional leave to appear and

defend in summary procedure?

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Topic II-

AFFIDAVITS-O.19 CPR

AFFIDAVITS

Meaning of an affidavit

An affidavit is a written statement which is sworn and signed on oath

which can be used as evidence in court proceedings. (Reliable Trustees
Ltd & 3 Ors vs. George F Sebeguya HCCS No. 601 of 1992 on the
definition of an Affidavit).

Affidavits are used mainly in interlocutory pleadings. An affidavit should

be made by the party to the proceedings or any other person who can
swear positively to the facts upon which the defense or claim is founded

Circumstances where Affidavit Evidence is Applicable and the

Practice

Section 2 of the Statutory declarations Act restricts the use of

Affidavits to proceedings, application or other matter commenced in any
court or referable to a court; or where under any written law an affidavit
is authorized to be sworn.

Section 3 of the Statutory declarations Act provides that a person

wishing to depone to any fact for any other purpose not provided for by
law may do so by means of a statutory declaration. This covers matters
like verification of names, qualification, signatures, loss of documents,
application for enrollment, certification of advocates etc However where
any person has sworn to an affidavit for any purpose other than a
purpose specified by law, that affidavit shall, nevertheless, be taken for
all purposes to be a statutory declaration.

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In the case of Col. (Rtd) Dr. Besugye Kizza vs. Museveni Yoweri
Kaguta & Electral Commission S.C Election Petition No.1/2001
Odoki CJ (as by then) considering the issue as to whether the document
filed by Hon. Okwir was an affidavit or a statutory declaration, the
document headed ‘affidavit’’ but at the end it stated, ‘and I make this
solemn declaration conscientiously believing the same to be true and by
virtue of the Statutory Declarations Act’ declared before
solicitor/Commissioner. It was held that the intention was to swear an
affidavit but the form the document took was that of a statutory
declaration. That the document was witnessed by a
solicitor/commissioner for oaths who had the power to administer an
affidavit. The most important element is that it was made on oath. That it
is a matter of form which should be disregarded by applying the principle
set out in article 126 that substantive justice shall be administered
without undue regard to technicalities, given the special circumstances
of the petition.

All formal applications are by notice of motion and chamber summons

and other forms of pleadings such as summary procedure on specially
endorsed plaint-O.36 CPR, Originating summons O.37 CPR, election
petitions, constitutional petitions, probate and matrimonial proceedings
and all proceedings were evidence required by law to be adduced by
affidavits.

Unless otherwise expressly provided by law all applications to court are

by notice of motion. A notice of motion states in general terms the
ground of application. It should be supported by evidence set out in
details by affidavit.

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No affidavit is required where a matter rests on law. In the case of

Odongkara vs. Kamad (1968) B.A. 210, held that no affidavit is
necessary where the application rests on matter of law.

The Applicable Law on Affidavit Evidence

O.19 r 1 CPR provides that in all proceedings it is open to court at any

time for sufficient reasons to order that any particular fact or facts to be
proved by affidavits or that the affidavit of any witness be read at the
hearing.

O.19 r 2 CPR provides that a party to the proceedings can apply to give
evidence by affidavit and the court has powers to order attendance of the
deponent to be cross examined at the instance of either party.

In the case of Thornhill-V- Thornhill (965) EA 268 held that O.17 r 1

CPR (now O.19) empowers the court to exercise its discretion to allow or
disallow evidence to be given by affidavit and this applies in exceptional
circumstances where the witness cannot be produced and in this case
the petitioner had undergone some expenses in procuring the evidence
by affidavit and this was an exceptional case in which the affidavit ought
to be accepted.

O.19 r 3 CPR provides that affidavits shall be confined to such facts as

the deponent is able of his or her own knowledge to prove except in
interlocutory applications where statements based on belief and
information will be admitted provided that the grounds of belief and the
sources of the information are stated.

In the case of Kato Luguza & Anor vs. Nakafero & Anor (Civil Appeal
No. 37 of 2011) Court held that the averments in affidavit were based on

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information the source disclosed and that this is in line with Order 19
rule 3(1) of the Civil procedure Rules which governs affidavits.

Evidence rules do not apply to affidavits

Sec.1 of the Evidence Act limits the application of the Act to affidavits
presented to any court or officer nor to proceedings before an arbitrator.

In the case of Life Insurance Corp. of India vs. Panesar (1976) E.A
615 held that unless otherwise provided for in a written law, rules of
evidence do not apply to affidavits. That there being no such written law,
the best evidence rule does not apply to affidavits.

In the case of Kakooza John Baptist vs Electoral Commission and

Anor Election Petition Appeal No. 11 of 2007 it was stated that the
opinion expressed in Life Insurance Corp. of India vs. Panesar (1976)
E.A 615 is that:

‘Unless otherwise provided for by a written law, the rules of evidence do

not apply to affidavit. There being no such written law, the best evidence
rule does not apply to affidavit.’’

That the rules that apply to affidavit evidence do not necessarily apply to
annextures to those affidavits. That the reason for this view is that the
affidavit contains the facts to which the deponent swears to be true
because he or she has personal knowledge of them. That this cannot
always be true of annextures to affidavits.

Types of Affidavits

The various types of Affidavits include the following;

i) An affidavit in support

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An Affidavit in support of motion is a sworn statement that sets forth the

facts that support the motion. In the case of MS Job Connect (U) Ltd vs.
DFCU Bank HCMA No. 627/2014, the application was for leave to
appear and defend civil suit brought under O36r 3 & 4 and O 52 r 1& 2
CPR supported by affidavit. Justice Hellen Obura on the issue whether
the notice of motion can stand without an affidavit in support cited the
case of Kaingana vs. Dabo Boubou [1980] HCB] 59 for the authority that
where an application is grounded on evidence by affidavit, a copy of the
affidavit intended to be used must be served with the application. In
such a case the affidavit becomes part of the application. The notice of
motion cannot on its own be complete application without the affidavit.
That in the instant case the notice of motion was not enough. That
following the above authorities the application was incompetent without
the supporting affidavit and cannot stand. That applications under O. 36
CPR are grounded on evidence by affidavit and therefore an affidavit is
mandatory requirement. Any application that does not comply with the
requirement would be incompetent.

Also in the case of Samuel Mayanja vs. URA HCMC No. 17/2005
Justice Egonda Ntende held that where an applicant files an application
under 052, such applicant is required under O52 r 3 CPR to attach an
affidavit to the notice of motion.

The motion or application together with the affidavit are filed in court
registry and copies of both are served on the opposite party. No motion or
application can be heard without notice to the parties affected thereby.
This is provided under O.48 r 2 and 4 CPR.

ii) An affidavit in reply / opposition.

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An affidavit in reply is an affidavit served in court proceedings in which a

deponent is desirous of opposing a particular application.

In the case of Energo Projekt vs. Brigadier Kasirye Gwanga & Anor
HCMA No. 558/2009 Jusrice Murangira held that both respondents
refused to file affidavits in reply and in such scenarios, the parties are
presumed to have conceded to the application. He referred to the case of
Samwiri vs, Rose Achan (1978) HCB 297 whereof Ntabgoba Ag J (as then
he was) held that where facts are sworn to in an affidavit and they are
not denied or rebutted by the opposite party, the presumption is that
such facts are accepted. That this very case binds both respondents.
Their failure or refusal or neglect to file affidavits in reply when they were
duly served with the application is clear indication that they never
intended to challenge the application.

In the case of Massa vs Achen [1978] HCB 297, the burden to deny
such facts sworn in an affidavit lies on the other party. If such party does
not deny or rebut them, they are presumed to have been accepted, and
the deponent needs not to raise them again, but if they are disputed then
he has to defend them again.

In the case of Makerere University vs St. Mark Education Institute

Ltd & Ors [1994] KALR 26 Lugayizi J held that in an application
proceedings by evidence supplied by affidavits, where there is no
opposing affidavit, the application stands unchallenged.

In the case of Shelton Okabo vs Standard Chartered Bank (U) Ltd,

Misc Appl. No. 51 of 1992 Before Okello J as he then was held that
since the respondent/plaintiff nor his counsel filed an affidavit in reply to
the supporting affidavit filed by counsel for the applicant, the statements
of facts contained therein remained uncontroverted.

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iii) An affidavit in rejoinder

This is a response by the petitioner to the counter affidavit filed by the

respondent. It is filed by the applicant in an attempt to controvert the
contents of the affidavit in reply more so the new issues raised.

iv) An Affidavit in sur rejoinder.

This is the respondent’s answer of facts to the applicant’s rejoinder. It is

filed in response to an affidavit in rejoinder and with leave of court.

v) Supplementary affidavit

This is an additional affidavit or subsequent affidavit in addition to the

original affidavit.

In the case of Kakooza Jonathan & Anor vs. Kasaala Co-operative

Society Ltd SC Application No. 13/2011 Tumwesigye JSC on the issue
whether the affidavit contained falsehood in that the deponent described
himself as a female adult of sound mind whereas he was a male adult
Uganda. It was held that the deponent swore a supplementary affidavit
stating that he is a male adult and that the word ‘female’ in his affidavit
in reply was an inadvertent typing error.

Cross examination of Deponents, Procedure and the Practice

O.19 r 2 CPR provides for the power of court to order attendance of

deponent for cross-examination. Court may order for cross examination
of deponent on application of the adversary party. In the case of
Premchard Richard vs. Ouamy Services Ltd (1969) EA 514 AT 517
Spry J as he was held that court has discretion to order attendance of a
deponent for cross examination upon application.

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In the case of Kipoi Tonny Nsubuga vs R.Wetaka & ors, Election

Petition Appeal No. 7/2011, it was held that the right to cross examine
a witness by the opposite party was one of the essential ingredients of a
fair hearing and that it was fatally erroneous for the trial judge to have
let a witness go without being cross examined.

However the application to cross examine a deponent should disclose

circumstances necessitating the cross examination of the deponent to
the affidavit. In the case of Madhvani Group Ltd vs. Simbwa & 2 Ors
MA No. 1160 /2012, court held that respondent counsel in his oral
application did not point out any peculiar facts or circumstances
necessitating the cross examination of the deponent and court failed to
trace the basis of his oral application in the circumstances of the case.

In the case of Aya Investments (U) Ltd vs M/s Kibeedi & Co.
Advocates Misc. Appl. No. 491 of 2008 learned counsel for the
respondent made an application for cross examination of a deponent of
an affidavit. Court held that the deponent of an affidavit in support of the
application, given that he alluded to the documents which the
respondent disputes, there is reason for him to be summoned for cross
examination purposes before the application is heard in earnest. That a
party to a suit is entitled to raise an objection to the competence of his
adversary’s pleadings during the hearing of the suit or before hearing
thereof.

Failure of the deponent to appear for cross examination will lead to

striking out the affidavit.

In the case of CTM Uganda Limited & 2 Ors vs Allmuss Properties

Uganda Ltd & 3 Ors MA No. 1389/2017 counsel for the respondent
sought leave to cross examine a deponent to the affidavit because it

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contradicted his past activities in the matter. Court granted the

application but deponent failed to appear. Court held that failure of the
deponent to appear for cross examination can only lead to striking out of
the affidavit and this leaves the application by notice of motion without
evidence to support it and dismissed with costs.

Contents of an affidavit

O.19 r 3 CPR provides that affidavits shall be confined to such facts as

the deponent is able of his or her own knowledge to prove except in
interlocutory applications where statements based on belief and
information will be admitted provided that the grounds of belief and the
sources of the information are stated.

In the case Three Ways Shipping Services Group Ltd vs. MTN (U) Ltd
HCMA No. 584 of 2013 Justice Madrama stated that Order 19 rule 3 of
the Civil Procedure Rules deals with matters to which affidavits shall be
confined. Sub rule 3 (1) provides as follows:

‘‘Affidavits shall be confined to such facts as the deponent is able of his or

her own knowledge to prove, except in interlocutory applications, on which
statements based on his or her belief may be admitted, provided that the
grounds thereof are stated.’’

That consequently the provision of law confines affidavits to such facts

as the deponent is able of his or her knowledge to prove except on
interlocutory applications. In other words, it is a re-enactment of the rule
against hearsay evidence.

In the case of Col. (Rtd) Dr. Besugye Kizza vs. Museveni Yoweri
Kaguta & Electral Commission S.C Election Petition No.1/2001
Odoki CJ (as by then) held that affidavits based on information and belief

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should be restricted to interlocutory matter. In proceedings which finally

determine the matter only affidavits based on the deponent’s knowledge
should be acted upon. The case of Paulo K. Ssemogerere and Z. Olum v.
A.G Constitutional Petition No. 3/1999 was cited whereof Berko JA held
that except in purely interlocutory matters affidavits must be restricted
to matters within the personal knowledge of the deponent. They must not
be based on information or be expression of opinion. Affidavits should be
confined to such facts, as the deponent is able of his own knowledge to
prove. Affidavits by person having no personal knowledge of the facts and
merely echoing the statement of claim cannot be used at the hearing.

In the case of Pacific Summit Hotel Ltd vs. DFCU Bank (U) Ltd HCMA
No. 9/2013 it was stated that the law governing affidavits in O.19 r. 3 is
to the effect that,

‘‘Affidavits shall be confined to such facts as the deponent is able of his or

her own knowledge to prove, except on interlocutory applications, on which
statements of his or her belief may be admitted provided that the grounds
thereof are stated.’’

That in Premchard Richard vs. Ouamy Services Ltd (1969) EA 514

AT 517 Spry J as he was said,

‘‘It has repeatedly been said by this court that affidavit based on
information must disclose the source of information (see Standard Goods
Corporation Ltd vs. Harakchard Nahus and Co. (1950) 17 EACA 9)
on this ground alone the judge would have been entitled to refuse to act on
the affidavit, this is not merely a matter of form, but goes to the essential
value of the affidavit.’’

That also in Eseza Namirembe v. Musa Kizito (1972) ULR 88 which

was a case by originating summons the application was dismissed

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amongst other reasons because the supporting affidavit did not set forth
the plaintiff’s means of knowledge or her grounds of belief and did not
distinguish between matters stated on information and belief and those
deponed to on the deponents knowledge.

That the above seems to be the strict interpretation of the requirements

of O.19 r 3 of the Civil Procedure Rules by the Courts. Numerous
authorities have continued to emphasize that an affidavit which does not
conform to the above requirement is defective and must be rejected. That
Hon. J. Okello emphasized this position in Allen Isingoma v. Alex
Muhairwe & 2 Ors HCCS No. 39/92, when he held that,

‘‘It is clear that disclosing the source of information, of facts deponed to

information and giving ground of belief where facts are deponed to on
belief and distinguishing between those facts which are deponed to on
information, belief and knowledge of the deponent are fundamental
requirement in the drafting of an affidavit. An omission in any of them goes
to the essential root of the affidavit. It renders the affidavit incurably
defective.’’

That according to the matters deponed to in the affidavit deponent avers

to issues of personal knowledge, but does not distinguish them from that
are in his belief so that he points out the grounds on which he bases to
believe so. That he has deponed to matters within his information, again
without distinguishing them from those within his knowledge and belief.
The affidavit is presented as a whole without taking heed to the
requirement that govern affidavits in support of interlocutory matters
under O.19 r 3. That the affidavit is found to be in violation of the above
legal requirement and is therefore incurably defective.

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That court was alive to the current practice where courts have since the
Supreme Court decision of Kiiza Besigye v. Museveni, and the
provisions of Article 126 of the Constitution relaxed this provision to
allow parties save parts of affidavits not found offensive in the name of
substantive justice; as discussed by J.Lugayizi in Italian
Ashalthaulage Ltd & 2Ors v. Assit (U) Ltd CA No.90 of 2000.

That however this practice is distinguishable from the circumstances of

the application, where there was a total failure to conform to the rules
making it impossible for the court to save the affidavit. That the
deponent states that he is the managing director of the applicant hotel
and deponed in that capacity, however he later depones to facts within
the specialty of the bank, and matters within the specialty of law. That
the affidavit is incurably defective and cannot be allowed to stand.
Without the affidavit, there is no motion, without motion there is no
application, therefore the application must fail and dismissed for
violating the provisions of O.19 r. 3.

Affidavits Deponed in Representative Capacity

O.1 r 12 CPR provides that where there are more plaintiffs than one, any
one or more of them may be authorized by any other of them to appear,
plead or act for that other in any proceeding, and in like manner, where
there are more defendants than one, any one or more of them may be
authorized by any other of them to appear, plead or act for that other in
any proceeding. The authority shall be in writing signed by the party
giving it and shall be filed in the case.

In the case of Mukuye Steven & 106 Ors vs Madhivani Group Ltd MA
No. 0821/2013 the issue was whether the applicants had legally given

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their authority to the parties claiming to represent them. Court held that
from the clear wording of O.1 r 12 CPR there appears to be nothing that
prohibits the deponent from swearing an affidavit on behalf of others who
have given him the authority in writing duly signed to represent them.
That the annexure to the affidavit meets the requirement under sub rule
2 that the form of the authority shall be in writing signed by the party
giving it.

In the case of Kaingana vs. Dabo Boubou [1986] HCB 59. In that case
the affidavit accompanying the application was sworn by the husband on
behalf of the wife. The objection was that the husband not being a party
to the suit, could not swear such an affidavit when he was not a
recognized agent and had not filed papers which authorized him to act in
that representative capacity. Court held as follows:-

‘‘A person is competent to swear an affidavit on matters or facts he knows

about or on information he receives and believes. Whereas the deponent in
this application claimed that he was fully acquainted with the facts
deposed to nevertheless he swore the affidavit in a representative
capacity. There was no authority given to him by the defendant to qualify
him act on his behalf either as his advocate or a holder of power of
attorney or duly authorized. The affidavit was therefore incompetent and
defective.’’

Whether stamp duty is chargeable on an affidavit.

In the case of Uganda Tax Operators and Drivers Association Vs.

Kampala Capital City Authority and the Executive Director KCCA
(MA 137 of 2011) the issue of whether stamp duty is chargeable on an
affidavit in support of an application. Justice Mwangusya found as
follows;

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‘‘This court is of the view that an affidavit in support of a Notice of Motion

which is pending before this court does not create a right or liability like in
the case of PROLINE ACADEMY V LAWRENCE MULINDWA cited in this
trial. If any right or liability was to arise out of this pleading it would arise
at the conclusion of the trial and this affidavit which is part of the notice of
Motion is not such an instrument as envisaged in the Stamps Act. The
inclusion of ‘Affidavits’ in the schedule to the Act would only refer to the
affidavits that create, transfer, limit, extend or create a right or liability
which the affidavit in question does not…’

In the case of Pearline Investment Ltd vs. Kampala Capital City

Authority & Anor HCMC 23/2012 held that affidavits referred to under
the Stamps Act for which Stamp duty is payable are those that confer a
right or liability on a party, but this is not the case with an affidavit in
support of an application by way of motion which is a pleading.

Procedure of Deponing Affidavits

Every affidavit must comply with the Commissioner for Oaths (Advocate)
Act, Cap 5, Oaths Act Cap 6 which sets out the form and manner in
which the oath may be taken.

An affidavit sets out the relevant facts in paragraph numbered

consecutively / progressively. It can be sworn before a judge, magistrate,
registrar, justice of peace, notary public, commissioner for oaths or other
authorized person.

The Affidavit must be voluntary and the signature of the deponent must
be verified by the person before whom the affidavit is made. That person
is also required to indicate the date and place where the oath of affidavit
is made or taken and countersign and seal / stamp the document. (See
s. 4 & 5 of the statutory declarations Act and Commissioner for Oath

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Advocates Act, s.6 of the Oath Act and S.3 of the Justice of the peace Act
Cap. 15)

The prescribed wording / form of jurat or attestation is stated in the 3rd

schedule to the commissioner for oaths (Advocates) Act as follows;

Sworn/Declared before me, ______________________________, at this

________ day of _______________, 20 ____, at _________________
__________________________

_________________________________

Commissioner for Oaths

In the case of Col. (Rtd) Dr. Besugye Kizza vs. Museveni Yoweri
Kaguta & Electral Commission S.C Election Petition No.1/2001
Odoki CJ (as by then) held that the Commissioner for Oaths (Advocates)
Act states that every commissioner for oaths before whom any oath or
affidavit is taken or made under the Act shall truly state in the jurat or
attestation or what place and on what date the oath or affidavit is taken
or made. That Rule 9 of the schedule provides the form of jurat set out in
the third schedule to the rules. That the 1st respondent’s affidavit did not
indicate the names or title of the person before whom it was made. It
merely contained a signature and seal of the High court. That the
registrar of the High Court has by virtue of his office all the powers and
duties of a Commissioner for Oaths in accordance with section 4 of the
Commissioner for Oaths (Advocates) Act. That the registrar’s jurat
fulfilled the essential requirements of the jurat namely place and date of
the affidavit was made. But it should have included his name and title to
strictly comply with the Form of jurat contained in the schedule. That the

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lack of proper form was however cured by the affidavit sworn by Mr.
Gidudu. (registrar)

*A jurat is a clause at the foot of an affidavit showing when, where, and

before whom the actual oath was sworn or affirmation was made.

The practice usually is that the Muslims affirm while Christians swear
and other religions declare. But the Oath Act only provides that you can
either swear, affirm or declare so long as its voluntary.

Where the affidavit / statutory declaration has been drafted by an

Advocates, the Advocate Act Cap. 267 requires that the affidavit should
indicate at the end of the last page the names of the advocate or law firm
which drew and filed that affidavit in court or statutory declaration.

Sec 4(1) of the Commissioner for Oath (Advocates) Act prohibits a

commissioner for Oath from taking or receiving and sealing an affidavit
in proceedings of matters in which he/she is the advocate for any of the
parties and his/her clerk is interested.

In the case of Col. (Rtd) Dr. Besugye Kizza vs. Museveni Yoweri
Kaguta & Electral Commission S.C Election Petition No.1/2001
Odoki CJ (as by then) considering an issue of challenged affidavits filed
in court on account of having been sworn by two advocates who were
part of the team of counsel for the petitioner held that in view of the fact
that the two advocates by the time they commissioned the affidavits were
not members of the team representing the petitioner or otherwise
participating in the proceedings, he was not satisfied that the affidavits
they commissioned are inadmissible.

Rule 7 of the Commissioner for Oath rules requires a commissioner for

Oath to satisfy himself that the person named as the deponent and the

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person before him are the same and that the person is outwardly in fit
state to understand what she is doing before taking an Oaths.

Rule 8 of the schedule to the commissioner for oath (Advocates) Act Cap.
5 require that all exhibits to affidavits shall be securely sealed to the
affidavits under the seal of the commissioner and shall be marked with
serial letters of identification. The forms of identification of exhibits is set
out in the Third Schedule to the Rules as follows;

This is the exhibit marked “______________________________________”

referred to in the annexed affidavit of _______________________________
sworn/declared before me this ________ day of _______________, 20 ____, at
_______________________________.

________________________________

Commissioner for Oaths

In the case of Kebirungi Justine V M/S Road Tainers Ltd & Othrs
HCMA No. 285 of 2003 Justice Ruby Aweri-Opio while considering an
issue whether the affidavit in support of the application to amend the
plaint was incurably defective for offending the provisions of rule 8 of the
first schedule to the commissioner for oath (Advocates) Act Cap. 53 cited
the case of Uganda Corp. Creamaries Ltd & Anor vs. Reamoton Ltd CA No.
44/1998 where there was a preliminary objection that the original and
supplementary affidavits supporting the notice of motion were incurably
defective for offending rule 8 of the first schedule to the commissioner for
Oaths (Advocates) Act for reasons that the exhibits to those affidavits
were not sealed and marked with serial of identification, Engwau JA held
as follows;

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‘In my view, whether or not those annexures have been securely sealed
with the seal of the Advocate who commissioned the Affidavits thereof,
does not offend rule 8 because they were not exhibits, produced and
exhibited to court during a trial or hearing in proof of facts. In any case the
annexures in the present case were not in dispute. Even if these
annexures were detached, the affidavits thereof would still be competent
to support the notice of motion. Rule 8 though mandatory, is procedural
and does not go to the root as to the competence of the affidavits. In the
premises substantive justice should be administered without undue regard
to technicalities.’’

The judge held that in light of the authority R.8 is a mere procedural and
does not go to the root of the competence of the affidavit.

Procedure of Deponing Affidavits by Illiterates.

Sec. 1 of the Illiterate Protections Act Cap 78 defines an “illiterate” to

mean, in relation to any document, a person who is unable to read and
understand the script or language in which the document is written or
printed. Section 2 thereof provides for verification of the illiterate’s mark
on any document, and that prior to the illiterate appending his or her
mark on the document it must be read over and explained to him or her.
Section 3 thereof requires that the document written at the request on
behalf or in the name of any illiterate must bear certification that it fully
and correctly represents his or her instructions and was read over and
explained to him or her.

The purpose and effect of the above provisions have been considered in
various cases and settled. In Tikens Francis & Another v. The
Electoral Commission & 2 Others, H.C Election Petition No. 1 of
2012 it was held that;

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‘‘There is a clear intention in the above enactment that a person who

writes the document of the illiterate must append at the end of such
a document a kind of ‘certificate’ consisting of that person’s full
names and full address and certifying that person was the writer of
the document; that he wrote the document on the instructions of the
illiterate and in fact, that he read the document over to the illiterate
or that he explained to the illiterate the contents of the document and
that, in fact, the illiterate as a result of the explanation understood
the contents which are purportedly written for and on instructions of
illiterate person are understood by such persons if they are to be
bound by their content…these stringent requirements were intended
to protect persons from manipulation or any oppressive acts of
illiterate persons…The requirements of the Illiterates Protection Act
are legal requirements and not procedural requirements. The law
can therefore not be bent under Article 126(2)(e) of the
Constitution…’’

The Supreme Court in the case of Kasaala Growers Co-operative

Society vs. Kakooza & Another citing with approval the case of Ngoma
Ngime vs. Electoral Commission & Hon. Winnie Byanyima held that;

‘‘Section 3 of the Illiterate Protection Act (supra), enjoins any person

who writes a document for or at the request or on behalf of an
illiterate person to write in the jurat of the said document his/her
true and full address. That this shall imply that he/she was
instructed to write the document by the person for whom it purports
to have been written and it fully and correctly represents his/her
instructions and state therein that it was read and correctly
represents his/her instructions and to state therein that it was read

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over and explained to him or her who appeared to have understood

it.’’ The supreme court went on to hold that the illiterate cannot
own the contents of the documents when it is not shown that they
were explained to him or her and that he understood them.
Further, that the Act was intended to protect illiterate persons and
the provision is couched in mandatory terms, and failure to comply
with the requirement renders the document inadmissible.

In the case of Mashari vs. Bakunda (U) Ltd & 3 Ors M.A No. 233 of
2013 the applicant during cross examination admitted that he had
signed the affidavit in support of the application but conceded that he
did not know English and that its contents were only read out to him by
his lawyer before he signed. Justice Eva Luswata stated that the
applicant’s affidavit in support of the application does not bear the
certificate of translation showing his lawyer’s full names and full address
and certifying that the lawyer was the author of the document, or that
the layer fulfilled any of the requirements under by the law in respect of
an illiterate deponent. That the section was meant to keep the record
pure and true in that the advocate concerned, who in this case is the
actual author of the document, stated in uncertain terms (at the time he
made the affidavit) that he had full instructions of the client to make it
and that he ensured that the deponent signed, before a commission for
oaths that he understood it before signing. That this is important
because, the concerned advocate cannot at subsequent proceedings be
allowed to clarify on such facts which would be giving evidence from the
bar. That it was incumbent upon the concerned counsel to include a
certificate of translation at the foot of the affidavit which is mandatory
legal requirement and not a mere technicality. That this would render the
affidavit incurably defective.

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In the case of Nakiwala & 2 ors vs. Rwekibira & Anor HCCS No. 280 of
2006 Honorable Justice Bashaija K Andrew stated that the term
‘illiterate’ is defined under Section 1(b) of the Illiterate Protection Act to
mean, in relation to any document, a person who is unable to read and
understand the script or language in which the document is written and
printed. Section 2 thereof provides for verification of the illiterate’s mark
on any document, and that prior to the illiterate appending his or her
mark on the document it must be read over and explained to him or her.
Section 3 thereof requires that the document written at the request on
behalf or in the name of any illiterate must bear certification that it fully
and correctly represents his or her instructions and was read over and
explained to him or her. That going by the settled position of the law, the
mandatory provisions of the Illiterate Protection Act would apply with full
force to the two documents. That they cannot be relied upon in any
litigation by any party seeking to enforce a right. It is also the established
law that the provisions are requirements of substantive law and cannot
be regarded as technicalities that could be ignored or cured under Article
126(2)(e) of the constitution

The first schedule to the Oath Act Cap. 19 requires an interpreter’s Oath
if the deponent does not speak and understand English. This oath
should be inserted in the affidavit after the deponent’s signature before
the commissioner for oaths signature.

Requirement to state Date and Place of Deponing an affidavit and

effect on non compliance

Section 5 of the Commissioner for Oaths (Advocates) Act, Cap. 5 as well

as section 6 of the Oath, Act Cap 19 requires a commissioner for oaths
before whom any affidavit or oath is taken to state in jurat or attestation
at what place and date the affidavit or oath is taken.

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In the case of Nabukeera Hussein Hanifa vs. Nakibuule Ronald & Anor
Election Pet. No 17 of 2011 Justice Lameck N. Mukasa stated that the
essential requirement under section 5 of the Commissioner of Oaths
(Advocates) Act is to state the place where and date when the oath or
affirmation is taken or made. That however Hon. Justice Odoki (as by
then) in Col. (Rtd) Dr. Besugye Kizza vs. Museveni Yoweri Kaguta &
Electral Commission S.C Election Petition No.1/2001 adds the
requirement to strictly comply with the form of the jurat which also
requires the inclusion of the name and title of the person before whom
the oath or affirmation was taken. That in the case of Suggan vs.
Roadmaster Cycles (U) Ltd [2002] EA 25 an affidavit was not dated.
Justice Mpagi-Bahigeine JA (as she then was) held that it is trite that
defects in the jurat or any irregularity in the form of the affidavit cannot
be allowed to vitiate an affidavit in view of Article 126(2)(e) of the 1995
Constitution. That a judge has powers to order an undated affidavit to be
dated in court or that the affidavit be re-sworn before putting it on record
and may penalize the offending party. That in Mbayo Jacob Robert vs.
EC and Talonsya Sinan CA Election Appeal No. 07/06 Byamigisha JA
stated: ‘‘In the case of Kizza-Besigye (supra), the Supreme Court held that
election petitions are very important and therefore courts should take a
liberal view of the affidavits so that a petition is not defeated on
technicalities’’ That as regards failure to seal and mark annextures in
Egypt Air Corporation t/a Egypt Air Uganda vs. Suffish International
Food Processors Ltd & Anor SCC Application No. 14 of 2000 the Justices
of the Supreme Court stated: ‘‘We would like to point that sealing and
marking of annextures to affidavits is a legal requirement which, inter alia,
facilitates the easy identification of annextures and in our view the
procedure must be adhered to’’ That due to the peculiar circumstances of
the proceedings before the court the Honourable justices reluctantly

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treated the omission to comply with the requirements to the

Commissioner for Oaths (Advocates) Act all its scheduled regulation as a
technicality, curable under Article 126(2)(e) of the Constitution as it was
felt that the failure did not occasion any injustice. The judge finally held
that in view of the peculiar circumstances of the matter where the oaths
or affirmations were administered by officer of this Honourable Court, as
evidenced by the seal of the Chief Magistrate’s court, whose omission
should not be unjustifiably visited on the respective deponents, the
defects complained of are curable and that a supplementary affidavit by
the respective court officer before whom the affirmation was made be
filed.

In the case of Ezama vs. Nile Microfinance (U) Ltd & Anor HCCA No.
13 of 2017 Justice Stephen Mubiru considering an objection to the
affidavit said to have been sworn at Arua yet the Commissioner for Oaths
rubber stamp affixed thereto reads P.O.Box 12422 Kampala stated that it
is indeed a mandatory requirement under both section 6 of the Oaths
Act, and section 5 of the Commissioner for oaths (Advocates) Act, that
every Commissioner for Oaths, or Notary Public before whom any oath or
affidavit is taken or made should state in the jurat or attestation at what
place and on what date the oath or affidavit is taken or made. In the
jurat, the commissioner is supposed to indicate his or her name, the date
and place, then his or her signature. It is therefore very clear indeed that
the jurat should contain the full address of the place where the affidavit
was sworn. That there is a line of authorities to the effect that section 5
of the Commissioner for Oaths (Advocate) Act and section 6 of the Oaths
Act are mandatory and non compliance with the same renders the
affidavit incurably defective (see Teddy Namazzi v. Sibo [1986] HCB 58;
Coffee Marketing Board Ltd v. Bukyenkye Cofee Factory (U) Ltd [1996]
H.C.B 59; The Church of Almighty God Malaki Ltd v. Administrator General

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and Another, H.C. Misc Civ. Appn No. 92 of 2009; Fred Kigozi v Paul
Musoke, H.C. Misc. App. No. 509 of 2002 ans Sembeguay v. Reliable
Trustees, H.C. Civil suit No. 601 of 1992). That however, it has also been
decided in other cases that some defects are curable and where the
defect is curable, the affidavit should not be rejected. For example
Munden v Charles Fredrick Augustus William, Dike of Brunswick and
Lumburg, Sued as Charles Fredrick Augustus William D’Este, Commonly
called The Duke of Brunswick, (1847) 136 ER 530, Standard Chartered
Bank Ltd v. Lucton (Kenya) Ltd HCCC No. 462 of 1997, Nabukeera
Hussein Hanifa v. Kibuule Ronald and another, H.C. Election Petition No
17 of 2011, and Col (Rtd) Dr. Besigye Kizza v. Museveni Yoweri Kagukat
and Electoral Commission, S.C. Election Petition No. 1 of 2001. That
guided by the above mentioned decisions and the defect complained of in
light of section 43 of the Interpretation Act, 3 which provides that where
any form is prescribed by any Act, an instrument or document which
purports to be in such form shall not be void by reason of any deviation
from that which does not affect the substance of the instrument or
document or which is not calculated to mislead, to derive the principle
that deviation from the from the requirements of form, unless calculated
to mislead, should be ignored. That the Commissioner for Oaths Rules
(fisrt schedule of the Act) prescribes a format for jurats. Nevertheless if
the defect of the jurat is in form, it should not be considered a
fundamental defect or irregularity, thus can be curable and should not
result in rejection of the affidavit. That as jurat indicating that the
affidavit is sworn at Arua but the stamp of the commissioner for oaths
reading in Kampala has the tendency to confuse rather than mislead and
that the defect or irregularity in the form of the jurat, which is not of a
fundamental nature that is curable and which should consequently not
result in rejection of the affidavit.

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In the case of Esimu Moses vs. Cairo International Bank Ltd &
Cellular Galore Ltd HCMA No. 424/2010 Justice Helen Obura held that
section 5 of the Commissioner for Oaths (Advocates) Act Cap. 5 requires
that every commissioner for oaths before whom any oath or affidavit is
taken or made under the Act shall state truly in jurat or attestation at
what place or on what date the oath or affidavit is taken or made. That
similarly section 6 of the Oaths Act Cap 19, provides for the same. That
both are mandatory provisions of substantive laws and cannot be argued
away as mere technicalities under Article 126(2)(e) of the constitution.
That in the case of Kasirye Byaruhanga & Co. Advocates vs. UDB SCCA
No. 2 of 1997 where their lordships adopted earlier ruling in the case of
UTEX Industries vs. A.G SCCA No. 52/19995 that it was our submission
that where 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 in view of
the above authority, there was non-compliance with section 5 of the
Commissioner for Oaths (Advocates) Act, Cap. 5 as well as section 6 of
the Oath, Act Cap 19 when the two affidavits were commissioned. That
this therefore renders them invalid and of no evidential value. That they
are struck off and any evidence that they were meant to present are
accordingly disregarded.

In a later case of Stone Concerete Ltd vs. Jubilee Insurance Co. Ltd
HCMA No. 358/2012 Justice Hellen Obura held that the effect of not
dating an affidavit is not as fatal as the applicant’s counsel submitted.
That the fact the affidavit is not dated is a defect in the jurat which was
held by the Court of Appeal in Saggu vs. Roadmaster Cycles (U) Ltd
[2002] 1 EA 258 to be a mere lapse that cannot be allowed to vitiate the
affidavit in light of Article 126(2)(e) of the Constitution. In that case their
lordships concluded thus, ‘it is therefore clear that failure to date an

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affidavit or cite correct law or any law at all are mere errors and lapses
which should not necessarily debar an application from proceeding.’ That
in view of the above authority which is binding on the court, the failure
to date the affidavit is a mere lapse and error which is a technicality and
ignore in the interest of substantive justice.

In the case of Kikongo vs. Electoral Commission & Anor Election

Appeal No. 75 of 2011 the issue was whether the provision of s.6 of the
Oaths Act are mandatory and what was the legal effect of having
affidavits served on the parties undated while the court record had dated
affidavits. Justice Nyanzi Yasin held that the ‘shall’ as raised in s.6 of the
Oaths Act is more directory than mandatory. Secondly the court records
are documents on file as whole. It is the official point of reference in all
proceedings that’s why an appeal is preferred; it is only court record that
is relied on, not any notes or documents of parties. That the moment the
trial court found that the court file affidavits were dated, it then became
official that the affidavits in support of the motion/petition were dated.

In the case of Male Mabirizi vs The ATTORNEY General Misc.

Application No. 7 of 2018 on the issue whether the court can
substitute an undated affidavit, reference was made to the case of Saggu
vs Road master Cycle (U) Ltd (2002) 1 EA 258 where court held that:
‘a defect in the jurat or any irregularity in the form of the affidavit cannot
be allowed to vitiate an affidavit in view of Article 126(2)(e) of the
constitution and that a judge has power to order that an undated
affidavit be dated in Court or that the affidavit be re sworn, and may
penalize the offending party in costs.’’ That despite the fact that this is a
court of appeal case; the Supreme Court found its decision persuasive
and is good law. That the case of Kasaala Growers Co-operative
Society vs Kakooza Jonathan & Anor SCCA No. 19 of 2010 draws a

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clear distinction between an affidavit which is defective and one which

does not comply with the requirements of the law. That the one which is
defective is curable and one which does not comply with the law is
curable. That an affidavit which is undated is defective but one that can
be cured. One way of curing such an affidavit is by way of allowing the
affidavit to be dated as was held in the case of Saggu vs Road master
Cycles (u) Ltd (2002) 1 EA 258. That in dealing with a defective affidavit,
the case of Hon. Theodore Ssekikubo & 3 Others vs The Attorney
General & 4 Ors Constitutional Application No. 08 of 1998 where it
was held that: ‘…a general trend is towards taking a liberal approach in
dealing with defective affidavits. This is in line with the Constitutional
directicve enacted in Article 126(2)(e) of the Constitution…Rules of
procedure should be used as handmaidens of justice but not to defeat it.’
Court held that while the affidavit in reply filed by the respondent on the
7th December, 2018 was defective in that it did not bear a date, it was
curable and the filing of the subsequent affidavit that was dated and
sworn by the same deponent on the 11th December, 2018 cured the
defect.

Commissioning of Affidavits, implications and effect of non-

compliance

The commissioner for Oaths must have a valid practicing certificate as

an advocate otherwise the affidavit is invalid and of no effect. See
Darlington Bakunda vs. Kinyatta & Anor SCCA No. 27/1996

In the case of Otim Nape George William vs. Ebil Fred & Anor. EP No.
0017/2011 Justice Stephen Musota stated that under the
Commissioner for Oaths (Advocates) Act Cap 5, the Chief Justice
appoints practicing Advocates who have practiced for not less than 2 yrs
in Uganda prior to making the application for appointment, and who are

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certified to be fit and proper persons by two other advocates to be

commissioners for Oaths. That this appointment is published in the
gazette. Each commission terminates forthwith on the holder thereof
ceasing to practice as an advocate. That for an advocate to practice law,
must have a valid practicing certificate. That it is on the basis of this that
an Advocate can continue to be a commissioner for oaths. The
commission granted to an advocate under the Act goes with a practicing
certificate. That once an advocate has ceased to practice as such the
commission also ceases. That therefore an advocate whose practicing
certificate has expired cannot legally continue to administer an Oath to
any body since his/her practicing certificate is the basis upon which the
commissioner for oaths operates. That regarding the effect on the validity
of an affidavit commissioned or documents filed by an advocate whose
certificate had expired, documents filed after expiry of the days of grace
were invalid.

That there are people / officers who under the commissioner for oath
(Ad) Act are permitted to serve as commissioners for oaths even though
they are not advocates. Under s.3 thereof magistrates and registrar are
ex-officii commissioners for oaths. That there is a requirement to state
the name of the commissioner for oaths be it an advocate or magistrate
in the space provided in the third schedule form of jurat. That this
omission is however minor and can be curable by an affidavit clarifying
the particulars of the officer who administered the oath.

In the case of MS Job Connect (U) Ltd vs. DFCU Bank HCMA No.
627/2014, the application was for leave to appear and defend civil suit
brought under O36r 3 & 4 and O 52 r 1& 2 CPR supported by affidavit.
Justice Hellen Obura while considering the Affidavit commissioned by
Mr. Semakula Augustine held that it is clear from the rulling that Mr.

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Semakula Augustine was suspended from legal practice for a period of

2yrs with effect from 31st August 2012. It follows that any affidavit
commissioned by him during the period of suspension would be
incurably defective and court can only strike it out. That the affidavit in
support of the application commissioned on 22nd July 2014 a month and
nine days before the period of his suspension lapsed on 31st May 2014.
The affidavit in support is incurably defective and is accordingly struck
out thereby leaving the application unsupported. That the next question
is therefore whether the notice of motion can stand without an affidavit
in support. The judge cited the case of Kaingana vs. Dabo Boubou [1980]
HCB] 59 for the authority that where an application is grounded on
evidence by affidavit, a copy of the affidavit intended to be used must be
served with the application. In such a case the affidavit becomes part of
the application. The notice of motion cannot on its own be complete
application without the affidavit. That in the instant case the notice of
motion was not enough. That following the above authorities the
application was incompetent without the supporting affidavit and cannot
stand. That applications under O. 36 CPR are grounded on evidence by
affidavit and therefore an affidavit is mandatory requirement. Any
application that does not comply with the requirement would be
incompetent.

In the case of Kakooza John Baptist vs Electoral Commission and

Anor Election Petition Appeal No. 11 of 2007 Kanyeihamba JSC
citing holding of justice of appeal held that to condone such an unsworn
statement seeking to pass as an affidavit evidence would undermine the
importance of affidavit evidence which is rooted on the fact that it is
made on oath and that the affidavit was rightly rejected.

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Filing of affidavits and Consequences of Failure to file Affidavits

An Affidavit in interlocutory applications has to be filed within timelines

for filing pleadings in interlocutory applications.

In the case of Stop and See (U) Ltd vs. Tropical Africa Bank HCMA
No. 333/2010 Justice Madrama held that a reply or defence to an
application has to be filed within 15 days failure of which would put a
defense or affidavit in reply out of time prescribed by the rules. That once
a party is out of time, he/she needs to seek leave of court to file a
defense or affidavit in reply. That O.12 r 3 CPR should guide advocates
on the timelines for pleadings in interlocutory applications.

In the case of Springwoods Capital Partners Ltd vs. Twed Consulting

Company Ltd HCMA No. 746/2014 the issue was whether the
respondent’s reply was filed out of time. Relying on the authority of Stop
and See (U) Ltd vs. Tropical Africa Bank Ltd in HCMA No. 333/2010 it
was held that a reply or a defence to an application has to be filed within
15 days.

However in the case of Sebyala Kiwanuka & Anor versus Sendi

Edward HCMA No. 500/2014 counsel for the applicant raised a
preliminary objection that the affidavit in reply was filed out of time
provided by the rules. Justice Flavia Anglin in overruling the objection
held that the supreme court has established that ‘the essence of all
disputes should be heard on merit and that rules of procedure are meant
to be hand maidens of justice and not to defeat it’. That since the
affidavit in reply was filed before hearing of the application, it cannot be
said to have prejudiced the applicant. That if the affidavit complained
were to be struck out, the respondent would then possibly file an

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application for extension of time which would result in a multiplicity of

proceedings which s.33 J.A was meant to prevent.

In the case of Elias Waziri & 2 Ors vs. Opportunity Bank (U) Ltd
HCMA No. 599/2013 Justice Hellen Obura considering the issue
whether the affidavit in reply was filed in time held that O.12 r 3 CPR
provides for time lines for filing, serving and hearing of interlocutory
applications made after competition of ADR or where there had been no
ADR, after the completion of the scheduling conference. That in the case
of Stop and See (U) Ltd Madrama J held that O 12 r 3 sub rule 2 is
meant to give timelines for all interlocutory applications that are
envisaged after completion of the scheduling conference or ADR. That he
observed that the strict interpretation of the rule would imply that time
has to be reckoned from the matters stated in rule 3 sub rule 1 and this
means that time runs from the date of completion of the scheduling
conference. That however in the instant case there has neither been
completion of ADR which is mandatory court annexed mediation nor has
there been a scheduling conference because a default judgment was
entered. That this application would not fall within the scope of rule 3 or
Order 12 CPR since it was file after the main suit had been disposed of.
That while its true that O51 r 6 CPR gives court power to enlarge time for
doing any act or taking any proceedings under the rules, that should
have been made before the affidavit was filed. Be that as it may, that she
will exercise her discretion and validate the affidavit in reply by extending
the time at this stage for the interest of substantive justice to be served.

Falsehoods in Affidavits

An application supported by a false affidavit is bound to fail

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In the case of Uganda Micro Finance Union Ltd Vs. Sebuufu Richard
and Anor HCT-00-CC-MA 0610-2007Justice Lameck Mukasa cited the
case of Sirasi Bitaitwa & Ors vs. E. Kavuma 1977 HCB 34 whereof it was
held that an application supported by a false affidavit is bound to fail
because the applicant in such a case does not come to court with clean
hands to tell the truth.

In the case of Meddie Ddembe Maji Marefu vs. Nalongo Namusisi

HCMA No. 35/2002 Justice Arach Amoko held that an affidavit which
contains a deliberate falsehood cannot be relied on. She relied on the
case of Bitaitama vs. Kanamura [1977] HCB 34, whereof it was held that;
1. The inconsistencies in affidavits cannot be ignored however minor
since a sworn affidavit is not a document to be treated lightly. If it
contains an obvious falsehood then it naturally becomes suspect, 2. An
application supported by a false affidavit is bound to fail because the
applicant in such a case does not come to court with clean hands. That
the blatant falsehood in the affidavit of the applicant cannot be ignored,
and the application would fail for that reason.

In the case of Solomon Chaplain v Tekplan Ltd HCMA No. 825 of

2013 it was held that in determining the alleged defect of the affidavit in
reply, the defect of an affidavit on account of falsehood is treated more
seriously than other defects because it affects the credibility of the
evidence given by way of that affidavit. It would therefore, have the effect
of rendering the affidavit incurably defective. To that end, court will be
inclined to find so in this case if it is proved that the affidavit in support
of the application and rejoinder contain falsehood.

In the case of Sam Aniagyeri Obengi & Anor vs. MTN Real Properties
Ltd & Anor MA No. 198 of 2011 Justice Hellen Obura held that the
affidavit in support of the application contained obvious falsehood and

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therefore the applicants are not coming with clean hands as equity
demands. That finding now leads court to consider the effect of a
defective affidavit on an application like this. That there a number of
authorities that adopt a rigid approach in dealing with defective affidavits
as well as those that a dopt a more liberal approach in line with Article
126(2)(e) of the 1995 constitution. A more rigid approach was adopted in
the case of Sirasi Bitaitana and 4 others vs Emmanuel Kananura [1977]
HCB 34 followed in the case of Nathan Katamba vs. Stephen Kabigyema
[2000] KALR 780. That the principle has been refined by adopting a more
liberal approach which allows the offending paragraphs of the affidavit to
be severed / ignored and the rest of the content to be admitted/accepted.
This was the holding in a number of case as was stated in the case of
Col. (Rtd) Besigye Kizza v Museveni Yoweri Kagutta & Electoral
Commission (Election Petition No. 1 of 2001) [2001] UGSC 3. That this
court was bound to apply the liberal approach adopted by the Supreme
Court and that paragraphs in the affidavit that contain falsehood would
be ignored and parts that are admissible would be accepted.

Affidavits deponed by Advocates, implications and legal

consequences

Regulation 9 of the Advocates (Professional Conduct) Regn prohibits an

Advocate’s personal involvement in the client’s case. An advocate may
not appear before any court or tribunal in any matter in which he or she
has reason to believe that he or she will be required as a witness to give
evidence, whether verbally or by affidavit.

In the case of Jayanth Amratlal & Anor Vs. Prime Finance Co.
Limited HCT-CC-MA-225-2008 the application was supported by an
affidavit deponed by an Advocate and a supplementary affidavit to
support the application. Justice Lameck Mukasa observed that the

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Advocate’s affidavit had contravened the provisions of the regulation 9 of

the Advocates (Professional conduct) Regulations 1979 and thus
incurably defective. That the supplementary affidavit had nothing to
supplement thereby rendering the application unsupported.

In the case of Kasajja vs. Iga & Anor HCMC No. 4/2014 the issue was
whether the respondent’s affidavit in reply offends regulation 9 of the
Advocates (Professional Conduct) Regulations and Rule 7 of the
commissioner for Oath Rules. Court stated that Regulation 9, imports
the legal positio0n that counsel cannot be a witness in the same case his
representing. The principle is that it is wrong for counsel to act as such
and at the same time give evidence by affidavit. That the affidavit in reply
are deponed and witnessed by a commissioner. That the Advocate firm
appears as the counsel who drafted the affidavit. The 1 st respondent
affidavit depones that the contents of the deponents information in part
of his affidavit are advice given by the same firm. That the import of this
is that this firm holds vital information as witnesses for the respondent.
This offends regulation 9 of the Advocates (professional conduct)
regulations. That it also offends Rule 7 of the Commissioner for Oaths
Rules (schedule) which require a commissioner for oaths before taking
oaths to satisfy himself that the person named as the deponent and the
person before him are the same. The requirement makes the
commissioner for oaths a potential witness, should any issue arise
requiring his/her clarification in court orally on what transpired before
him as commissioner while administering oath. That this goes against
the standard rule in the case of R V. Secretary for State for India (1941) 2
ALL ER 546 that: ‘It is trite law that an Advocate should not act as counsel
and witness in the same case’’.

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Read Ismail T/a Bombo City stores v. Alex Kamukama & Ors T/a Bazari
(1992) 3 KALR 113 (SC-U) 119

Inconsistencies, Contradictions in affidavits and legal consequences

In the case of Mugume vs. Akankwasa [2008] HCB 682 J. Stella Arach
held that ‘inconsistencies in affidavits cannot be taken lightly, and an
affidavit containing falsehood is suspect and is bound to fail’

In the case of Sempala vs. Najjumba HCMA NO. 2444 of 2016 held
that there were major discrepancies in the statement by the Applicant on
oath which renders the contents of the affidavits suspect and unreliable.
That the law is that when an affidavit contains falsehoods, it will in most
cases be rejected by court. That where the affidavits are incurably
defective, misleading and false; they cannot be saved by the principles
set out in cases like Saggu vs. Road Master Cycle (U) Ltd (2002) 1 EA 258
or Kiiza Besigye vs. Museveni Y.K & Electoral Commission (2001-2005) 3
HCB that; ‘Court can rely on parts of an affidavit which are truthful and
reject the parts which are false’.

Argumentative, prolix and affidavits constituted by irrelevant

subject matter Hearsay in Affidavits, disclosure of source of
information, statement of grounds of belief

An affidavit should not contain hearsay evidence or be argumentative or

attach unnecessary copies of or extract from documents. (This is
important when it comes to quality and admissibility of affidavits)

In the case of Male Mabirizi vs The ATTORNEY General Misc.

Application No. 7 of 2018 on the issue of whether the affidavit of the
applicant are argumentative, narrative and contain hearsay and
conjectures the Court cited Order 19 rule 3 of the Civil Procedure Rules
and found that the affidavit in support contains 94 paragraphs and the

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supplementary affidavit contains 67 paragraphs, the affidavit in rejoinder

contains 103 paragraphs and this makes a total of 264 paragraphs and
held that the length of the affidavits by itself is not the issue but found
that the affidavits contents are argumentative and prolix. That an
Affidavit is meant to adduce evidence and not to argue the application
and that the affidavits of the applicant fall short of meeting this
standard. They argue the case instead of laying down the evidence to be
relied on in deciding the application and that the affidavit in reply suffers
the same defect. That prolixity is defined in the Black’s Law Dictionary,
Ninth Edition at page 1331 as ‘The unnecessary and superfluous stating
of facts and legal arguments in pleading or evidence.’’ That in the case of
Re: Bukeni Gyabi Fred HCMA 63/99, [1999] KALR 918 the Court in
interpreting this rule held that the order is very clear. An affidavit should
contain facts and not arguments or matters of law. That in Rohini
Sidipra vs Frey Sidipra & Ors HCCS 591/90, [1995] KALR 724 Mpagi
Bahigeine J as she then was held: ‘I think I first desire to make an
observation about the applicant’s supplementary affidavit. It appears not
to have been skillfully drawn. It is prolix in the extreme. It contains 11
rather lengthy paragraphs covered on 7 pages. Much of this is
argumentative narrative, not strictly relevant to the application before me.’’
That the learned judge quoted O.19 rule 3(1) of the CPR and said: ‘In this
regard, the court has power to take an affidavit off the file for prolixity or to
order scandalous matter to be struck out of an affidavit. The Registrar
should not have allowed it on record. I proceed to strike it out.’’ The
Supreme Court approved the reasoning. Court further noted that under
O.19 r 3 CPR, the deponent who makes the argumentative affidavit
which is incurable can be penalized by paying costs of the application.
That while there isn’t anything scandalous in the affidavits of the
applicant, court found that they are prolix and non compliant with O.19

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r 3 CPR and strike them out. That the consequence of striking out the
affidavit is that there is no competent application before court since it is
a requirement under R.43 of the Supreme Court rules.

An affidavit which does not distinguish between facts based on

information and belief and facts based on knowledge is defective and may
be rejected by court.

In the case of Standard Goods Corp ltd vs. Musa Harakchand [1950]
17 EACA 9 the EACA held that facts can be within a person’s knowledge
in two ways; by his /her own physical observation or by information
given to him /her by someone else. Where an affidavit is made on
information it shouldn’t be acted upon by the court unless the sources of
information are disclosed.

In the case of Col. (Rtd) Dr. Besugye Kizza vs. Museveni Yoweri
Kaguta & Electral Commission S.C Election Petition No.1/2001
Odoki CJ (as by then) referring to the case of Paulo K. Ssemogerere and Z.
Olum v. A.G Constitutional Petition No. 3/1999 whereof the Court of
Appeal distinguished the case of Nassand & Sons (Uganda) Ltd vs. East
African Records (1959) EA 360, Standard Goods Corporation Ltd vs.
Harakchand Nathu 7 Co. (1950) 17 EACA and Aristella Kabwimukya vs.
John Kasigwa (1978) HCB which concerned interlocutory applications.
The Court pointed out, that a constitutional petition is not an
interlocutory application. Therefore an affidavit in support of it must be
restricted to facts the deponent is able of his own knowledge to prove and
not facts based on information and belief. That an affidavit based on
information given to the deponent by someone else is hearsay and
inadmissible to support the petition

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In the case of Kakooza Jonathan & Anor vs. Kasaala Co-operative

Society Ltd SC Application No. 13/2011 Tumwesigye JSC on the issue
whether the affidavit was argumentative and offends the law and should
be struck out and whether it contained falsehood in that the deponent
described himself as a female adult of sound mind whereas he was a
male adult Uganda. It was held that most of the paragraphs complained
about are statements of belief which he stated to have originated from
his former Counsel, and that other paragraphs are statements of facts
within the knowledge of the deponent. On the issue of falsehood, the
deponent swore a supplementary affidavit stating that he is a male adult
and that the word ‘female’ in his affidavit in reply was an inadvertent
typing error.

In the case of Uganda Micro Finance Union Ltd Vs. Sebuufu Richard
and Anor HCT-00-CC-MA 0610-2007Justice Lameck Mukasa stated
that even if the deponent’s averment was based on his belief founded on
information, neither does he say so nor does he name the source of
information. That normally an affidavit contains a paragraph where it
states what particular facts are true to the knowledge of the deponent
and what is stated as information believed to be true by the deponent.
That the ground of belief must be stated with sufficient particularity to
enable the court to determine whether it could be safe to act on the
deponent’s belief. That an affidavit must disclose matters based on the
deponent’s knowledge and those base on belief. That an affidavit which
fails to do so is defective and cannot be relied upon.

In the case of Pacific Summit Hotel Ltd vs. DFCU Bank Ltd HCMA No.
9/2013 Justice Kawesa Henry held that the law governing affidavits is
O.19 r 3 is to the effect that; ‘Affidavits shall be confined to such facts as
the deponent is able of his or her own knowledge to prove, except on

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interlocutory applications, on which statements of his /her belief may be

admitted provided that the grounds thereof are stated.’ The case of
Premchard Richard vs. Quary Services Ltd (1969) E.A at 514 Spry J as
then said; ‘It has repeatedly been said by this court that affidavirts based
on information must disclose the source of information (see Standard
Goods Corp Ltd vs. Haralkchard Nabus & Co. 1950) 17 EACA) on this
ground alone the judge would have been entitled to refuse to act on the
affidavit, this not merely a matter of form but goes to the essential value
of the affidavit’

In the case of Nakiridde –V- Hotel International [1987] HCB 85 it was

held that where an affidavit contains matters of law, is argumentative
and is irrelevant, it is then incompetent and should be struck out.

In the case of Eseza Namirembe –V- Musa Kizito [1973] EA 413 which
was a case by originating summons, the application was dismissed
among other reasons because the supporting affidavit did not set forth
the plaintiff’s means of knowledge or her grounds of belief and did not
distinguish between matters stated on information and belief and those
deponed to on deponent’s knowledge.

In proceedings which finally determine the matter in dispute only

affidavits based on deponents knowledge should be acted upon thus in
Paul K. Semwogerere & Zachary Olum vs. A.G Const. Pet. No.
3/1993, the constitutional Court of Uganda (per Berko J.A) held
that; ‘Except for purely interlocutory matters, affidavits must be
restricted to matters within the personal knowledge of the deponent.
They must not be based on information or be expression of opinion.
Affidavits should be strictly confined to such facts as the deponent is

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able of his/her knowledge to do. Affidavits by persons having no personal

knowledge of the facts and merely echoing the statement of the claim
cannot be used at the hearing. The constitutional petition isn’t an
interlocutory application therefore an affidavit in support of it must be
restricted to facts the deponent must be able to prove.

Applicability of Article 126(2) (e) to Affidavits

In appropriate cases, the court has discretion to exclude hearsay matters

and sever the defective or superfluous part of an affidavit and act on the
rest.

In Besigye Kizza vs. Museveni, Odoki CJ observed at page 24 that there

is a general trend towards taking a liberal approach in dealing with
defective affidavits, this is in line with the constitutional directive in Art.
126 of the 1995 constitution that the courts should administer
substantive justice without regard to technicalities. Rules of procedure
should be used as handmaids of justice but not to defeat it.

In the case of Uganda Micro Finance Union Ltd Vs. Sebuufu Richard
and Anor HCT-00-CC-MA 0610-2007Justice Lameck Mukasa held that
court has wide inherent powers under section 98CPA to administer
justice. See also Art. 126 (2)(e) of the constitution. Considering the
nature of the applicant’s claim in the main suit and interest still shown it
would be injustice to shut the applicant without considering the merits of
its application. That administration of justice requires that all
substances of dispute shall be heard and decided on merit. That in view
of the above, that he is inclined to allow the application.

In the case of Pacific Summit Hotel Ltd vs. DFCU Bank Ltd HCMA No.
9/2013 Justice Kawesa Henry stated that he was alive to the current
practice where courts have since the supreme court decision in Kizza

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Besigye vs. Museveni and the provisions of Art. 126 of the constitution
relaxed this position to allow parties sever parts of the affidavits found
offensive in the name of substantive justice as discussed by Lugayizi J in
Italian Ashal thaulage Ltd & 2 Ors vs. Assist (U) Ltd CA No. 90/2000,
however that this practice is distinguishable from the circumstances of
this application where there was total failure to conform to the rules
making it impossible for the court to save the affidavit. That in the
affidavit the deponent states in paragraph 1 that he is the managing
director of the applicant hotel, and deponed in that capacity, however
later he deponed to facts within specialty of the bank. He deponed to
matters within specialty of law. That the affidavit is incurably defective
and cannot be allowed to stand.

In the case of Joel Kato & Anor vs. Nuulu Nalwoga HCMA No. 040 of
2012 the Court held that while some paragraphs contain hearsay
evidence, this alone cannot result in the whole affidavit being discarded.
That the position adopted by Tsekooko JSC in Rtd. Col Kizza Besigye vs.
Yoweri Kaguta Museveni & the Electoral Commission SC Presidential
Election Petition No. 1 of 2006 where it was stated: ‘Even if some
paragraphs [in the affidavit] might contain hearsay matters and even if the
deponent did not specify the source of certain information contained in the
affidavit, those were not sufficient grounds for a whole affidavit [to be
declared] a nullity.’’

In the case of Male Mabirizi vs The ATTORNEY General Misc.

Application No. 7 of 2018 on the issue whether the court can
substitute an undated affidavit, reference was made to the case of Saggu
vs Road master Cycle (U) Ltd (2002) 1 EA 258 where court held that:
‘a defect in the jurat or any irregularity in the form of the affidavit cannot

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be allowed to vitiate an affidavit in view of Article 126(2)(e) of the

constitution and that a judge has power to order that an undated
affidavit be dated in Court or that the affidavit be re sworn, and may
penalize the offending party in costs.’’ That despite the fact that this is a
court of appeal case; the Supreme Court found its decision persuasive
and is good law. That the case of Kasaala Growers Co-operative
Society vs Kakooza Jonathan & Anor SCCA No. 19 of 2010 draws a
clear distinction between an affidavit which is defective and one which
does not comply with the requirements of the law. That the one which is
defective is curable and one which does not comply with the law is
curable. That an affidavit which is undated is defective but one that can
be cured. One way of curing such an affidavit is by way of allowing the
affidavit to be dated as was held in the case of Saggu vs Road master
Cycles (u) Ltd (2002) 1 EA 258. That in dealing with a defective affidavit,
the case of Hon. Theodore Ssekikubo & 3 Others vs The Attorney
General & 4 Ors Constitutional Application No. 08 of 1998 where it
was held that: ‘…a general trend is towards taking a liberal approach in
dealing with defective affidavits. This is in line with the Constitutional
directicve enacted in Article 126(2)(e) of the Constitution…Rules of
procedure should be used as handmaidens of justice but not to defeat it.’
Court held that while the affidavit in reply filed by the respondent on the
7th December, 2018 was defective in that it did not bear a date, it was
curable and the filing of the subsequent affidavit that was dated and
sworn by the same deponent on the 11th December, 2018 cured the
defect.

Pre-entry Exam

2014/2015

Qn. 44. In your own words, describe an affidavit.

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2015/2016

Qn. 40. What is the relevance of a Commissioner for Oaths in litigation?

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Topic 3-Types of Judgments

TYPES OF JUDGEMENTS

Meaning, Pre-requisites of a Valid Judgment

Section 2 CPA defines Judgment to mean the statement given by the

judge of the grounds of a decree or order.

In order for a judgment to be valid, it must be announced by court of

competent jurisdiction or a court that is properly constituted. A
judgment of court must be signed and dated by a judicial officer and
should ordinarily be pronounced in open court. O.21 r 3 (1) CPR requires
that judgment pronounced by the judge who wrote it shall be dated and
signed by him or her in open court at the time of pronouncing it.

In the case of Maniraguha Gashumba versus Sam Nkundiye CACA

No. 23/2005 (2013) the Court of Appeal held that a judgment must be
signed and dated by a judge or a magistrate who wrote it, at the time of
pronouncing it. A judgment that is not signed and dated in accordance
with O. 21 r 3 (1) CPR is not judgment at all, and therefore invalid. That
neither the oral evidence of the judicial officer who wrote it nor
certification could validate such unsigned judgment.

The rationale for signing and dating a judgment is basically to guarantee

its authenticity and time for appealing runs from the date of the
judgment.

Judgment and Legal Effect

A judgment of a court of law is binding on the parties who must comply

with it or be subject of execution proceedings or other sanctions. It
follows that once a judgment is pronounced by a court of competent
jurisdiction unless appealed or set aside must be complied with.

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In the case of Re Howard Amani Little CACA No. 32 of 2006 it was

held that a court order is an order that must be complied with.

Hadkinson Vs. Hadkinson [1952] 2 ALLER 267-Failure to comply with

a judgment constitutes a contempt of court.

In the case of The Protector & Gamble Company vs. Kyobe James
Mutisho & 2Ors HCMA No. 135/2012 Kiryabwire J as then he was,
held that a party who knows of an order, whether null or valid, regular or
irregular, cannot be permitted to disobey it. It would be most dangerous
for parties to a suit, or their solicitors to themselves to judge whether an
order was null and void, regular or irregular. Such parties should come
to the court and not take it upon themselves to such a question. The
course of a party knowing of an order which is null and irregular is plain.
The party concerned should apply to court that it might be discharged.
As long as the court order exist, it must not be disobeyed.

Ordinary Judgment [the law, Procedure and Practice

Ordinarily a judgment should contain a brief fact of the case, issues, the
resolution of issues by court and the final orders of the court. O. 21 r 4
CPR provides that judgments in defended suits shall contain a concise
statement of the case, the points for determination, the decision on the
case and the reasons for the decision, and r 5 requires court to state its
decision on each issue.

In the case of Liberty Construction Co. Ltd versus R.C Munyani & Co.
Advocates HCMC No. 8/2011 Justice Madrama stated that in making
judicial decisions there are certain guidelines to be followed. The first
guideline is provided for under O 15 CPR which deals with framing
issues. That issues arise when a material proposition of law or fact is
affirmed by one party and denied by the other. That as far as judicial

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decisions are concerned, judicial officers are also guided by O 21 CPR.

Contents of a judgment are provided for under O 21 r 4 CPR which
provides that judgments in defended suits shall contain a concise
statement of the case, the points for determination, the decision on the
case and the reasons for the decision. That O 21 r 5 CPR provides that
the court shall state its decision on each issue or controversy.

Default by the Defendant

Depending on the nature of the claim, the conduct of the parties in filing
and exchanging pleadings and the procedure adopted by the parties in
the commencement of the proceedings, it may not be necessary to set
down the suit for hearing, consequently any of the following judgments
may be given against the defendant in default without hearing;

i) Default Judgment [the law, Procedure and Practice,

a) If a party commences proceedings by way of summary procedure

and the defendant fails to apply for leave to appear and defend the
suit within the period fixed in the summons, the plaintiff is entitled
to a decree for the sum claimed together with interest and costs
against the defendant-O.36 r 3 CPR. (See detailed notes on
Summary Procedure Topic 1)
b) If the proceedings have been commenced by ordinary plaint and
the defendant has failed to file a defence as prescribed by O.9 r 1
CPR, the plaintiff is required to file an affidavit of service of
summons and the failure of the defendant to file a defence within
the prescribed time-O.9 r 5 CPR. In the case of Varley Alia vs.
Alionzi John HCCS No. 157/2010 Justice Madrama held that O 9
r 5 CPR is mandatory in that it requires the affidavits to prove two
things namely; service of summons and failure of the defendant to

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file a defense within the time prescribed. The suit cannot proceed
without an affidavit of service on the record as envisaged by rule 5
of O9 CPR. Secondly that interlocutory judgment cannot be
entered unless there is compliance with rule 5 of the order. That in
Uganda the requirement under O.9 r 5 CPR to file and affidavit of
service upon the court record is mandatory requirement. That
service of summons under O5 CPR is also not satisfied by service
of summons signed by the registrar only. Certain items are meant
to accompany the summons under O5 r 2 CPR.
c) Where the plaintiff claims a liquidated demand, the court may
pass judgment for the sum claimed in the plaint together with
interests and costs-O.9 r 6 CPR.
d) Where there are several defendants the court may pass judgment
and decree against those who have failed to file a defense and
execution may issue and hearing may proceed against the
defendants who have filed defences-O.9 r 7 CPR.
In the case of Twine Amos vs. Tamusuza James HCC Revision
No. 11/2009 Justice Irene Mulyagonja held that the operative
phrase for entering judgment in O.9 r 6 CPR is ‘liquidated
demand’. Osborn’s concise law dictionary (17th edition, sweet &
Maxwell) defines ‘liquidated’ as fixed or ascertained. According to
Black’s law dictionary (6th Edition) a liquidated claim is an amount
which has been agreed upon by the parties to the action, or one
that is fixed by the operation of the law.
In the case of Lloyds Forex Bureau vs. Securex Agencies (U) Ltd
HCCS No. 358/2012, Justice Madrama held that the plaintiff’s
action is for a liquidated demand plus interest and cost of the suit.
That only claims for pecuniary loss or general damages require
formal proof. That this is however optional. That the plaintiff would

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have been entitled on a liquidated demand under O.9 r 6 CPR.

That O.9 r 6 applies to a plaint drawn and claiming a liquidated
demand where no defense is filed. The rule does not provide that it
is applicable where the plaintiff is claiming a liquidated demand
only. That in Stroud’s Judicial Dictionary of Words and Phrases
Sweet and Maxwell 2000 edition defines the term ‘liquidated
demand’ to include an amount on a bill of exchange, definite
interest on a contract or a statute, a sum certain in money, a
statutory demand for payment of a total debt or an amount due on
a judgment.
e) Default Judgment against Government (AG)
Rule 6 of the Civil Procedure (Government Proceedings) Rules SI 77-1
provides that judgment shall not be entered, and no order shall be
made, against the Government in default of appearance or pleading
under any provision of the principal Rules without leave of the
court, and any application for such leave shall be made by
summons served not less than seven days before the return day.

In the case of Agasa Maingi V AG HCCS No.0095/2002 an

application by Chamber Summons brought under rule 6 Civil
Procedure (Government Proceedings) Rules and O.11 r 6 CPR for
orders that judgment in default be entered against the respondent
/defendant, in alternative that judgment on admission be entered
against the defendant/respondent. Justice Katutsi held that rule 6
of the Civil Procedure (Government Proceedings) rules enacts that
judgment shall not be entered and no order shall be made against
the government in default of appearance or pleading under any
provision of the principal rules without leave of court and the
application for such leave shall be made by summons served not
less than 7 days before the return day. That it was clear that the

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application was brought in court in conformity with rule 6 of the

Civil procedure (Government Proceedings) rule. That the Attorney
General though served did not appear in court. That on this
ground alone the application would succeed.

ii) Interlocutory Judgments

This applies in cases where the plaintiff is claiming for pecuniary

damages which are not specific or ascertained and or detention of
goods. If a defendant fails to file a defense in such a case and the
plaintiff has filed an affidavit of service within provisions of O.9 r 5
CPR the court may enter an interlocutory judgment against the
defendant and set down the suit for assessment of damages and the
value of the goods. A final judgment and execution will issue in
respect of the amount found due by such assessment –O.9 r 8 CPR.

In the case of Lloyds Forex Bureau vs. Securex Agencies (U) Ltd
HCCS No. 358/2012, Justice Madrama held that O.9 r 8 deals with a
claim or for detention of goods with or without a claim for pecuniary
damages. A claim for pecuniary damages is not a claim for a sum
certain in money. It is a claim for damages which may be assessed.
That O.9 r 8 CPR permits the court to enter interlocutory judgment
against the defendant where there is a claim for pecuniary damages
only or detention of goods with or without a claim for pecuniary
damages. This is where the defendant fails to file a defense within the
period prescribed in the summons.

In the case of Twine Amos vs. Tamusuza James HCC Revision No.
11/2009 Justice Irene Mulyagonja held that though the D/Registrar
entered the interlocutory judgment under a wrong provision, realizing
that the plaintiff’s claim was not liquidated proposed to set down the

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suit for hearing, as would have been done had the interlocutory
judgment been properly entered under O.9 r7 CPR. Therefore entering
judgment under O.9 r 6 was only irregular and the irregularity was
not material one because thereafter the court followed the correct
procedure when the suit was set down for assessment of damages.
That with regard to the complaint that notice of hearing was not
served upon him, O.9 r 10 lays down the general rule where no
defense is filed. It provides that in all suits that are not specifically
provided for in O.9, in case the defendant does not file a defense on or
before the day fixed, upon filing an affidavit of service the of summons
upon the defendant, the suit may proceed as if that party had filed a
defense. That the next step that should take place in the suit is
setting it down for hearing, i.e., if no judgment could be entered on
the whole claim without proof of it. In that regard O.9 r 11(1) applies
for setting down the suit for hearing. That notice of hearing of the suit
is to be served on a party who has filed a defense, not on one who has
failed to file a defense as required by summons issued to him/her.
That when he failed to file a defense, the defendant opened the door
for the plaintiff to proceed exparte in the suit which he did under the
provisions of O.9 r 11 (2) CPR.

In the case of Concern Worldwide vs. Mukasa H C Civil Revision

No. 1/2013, Justice H. Wolayo held that a default judgment is
entered where there is proof of service and the defendant has not filed
a defense within the specified time. Rule 6 and 8 of O.9 CPR are
relevant. That under rule 6, where the plaint is for a liquidated
demand, judgment will be entered for the sums claimed. However rule
8 where the claim is for pecuniary damages, the rules requires that an
interlocutory judgment is entered and the suit set down for formal
proof. That in the instant case, the claim was for unspecified sums of

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money and for general damages for wrongful dismissal. That clearly
there was need for the respondent to adduce evidence for wrongful
dismissal and for his entitlements under the contract. That it was not
up to the magistrate to interprete the contract when the plaintiff had
not specified what he was demanding in the plaint. That the
magistrate erroneously entered a default judgment when the correct
entry should have been an interlocutory judgment.

Possibility of Obtaining both a default and Interlocutory

Judgment in one suit

In the case of Lloyds Forex Bureau vs. Securex Agencies (U) Ltd
HCCS No. 358/2012, an interlocutory judgment was entered against
the defendant by registrar indicating that the suit is set down for
formal proof upon failure of the defendant to file a defense. Justice
Madrama held that the plaintiff’s action is for a liquidated demand
plus interest and cost of the suit. That only claims for pecuniary loss
or general damages require formal proof. That this is however
optional. That the plaintiff would have been entitled on a liquidated
demand under O.9 r 6 CPR. That O.9 r 6 applies to a plaint drawn
and claiming a liquidated demand where no defense is filed. The rule
does not provide that it is applicable where the plaintiff is claiming a
liquidated demand only. Consequently even if a liquidated demand is
coupled with another claim, O.9 r 6 may attract judgment upon
default of the defendant to file a defense within prescribed time. That
secondly O.9 r 8 on the other hand deals with a claim or for detention
of goods with or without a claim for pecuniary damages. A claim for
pecuniary damages is not a claim for a sum certain in money. It is a
claim for damages which may be assessed. That O.9 r 8 CPR permits
the court to enter interlocutory judgment against the defendant where

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there is a claim for pecuniary damages only or detention of goods with

or without a claim for pecuniary damages. This is where the
defendant fails to file a defense within the period prescribed in the
summons. That in this case, the plaintiff’s action is not for pecuniary
damages only. It is a claim for a liquidated sum coupled with a claim
for pecuniary damages. That in Stroud’s Judicial Dictionary of Words
and Phrases Sweet and Maxwell 2000 edition defines the term
‘liquidated demand’ to include an amount on a bill of exchange,
definite interest on a contract or a statute, a sum certain in money, a
statutory demand for payment of a total debt or an amount due on a
judgment. That there is judicial precedence to the effect that a final
judgment may be entered in respect of a liquidated demand and an
interlocutory judgment entered in respect of the claim for pecuniary
damages claimed in the same plaint. That this was held by Evershed
LJ in the case of Abbey Panel & Sheet Metal Co. Ltd vs. Barson
Products (affirm) (1947) 2 ALLER 804 at page 810 where his
lordship held that judgment in default is entered for a liquidated sum
while interlocutory judgment is entered in respect of the claim for
pecuniary damages. That the same reasoning was followed in the case
of NSSF vs. Kisubi High School C.S No. 440/2011. That this in a
nutshell gives a right for a plaintiff to proceed under 0.9 r 6 and 7
with regard to a claim for a liquidated damages and O 9 r 8 CPR in
respect for a claim for pecuniary damages or detention of goods with
or without a claim for a pecuniary damages in the same plaint. In
other words the plaintiff is entitled to judgment on the liquidated sum
and the proceedings for formal proof will only be for general damages.

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iii) Exparte Judgments

This is a judgment given after the suit has been heard exparte. Where
the time allowed for filing a defense has expired and the defendant
has failed to file his/her defense, the plaintiff may set down the suit
for hearing exparte-O.9 r 11(2) CPR.

In the case of Twine Amos vs. Tamusuza James HCC Revision No.
11/2009 the issue among others was whether the trial court properly
entertained the respondent’s suit exparte. Justice Irene Mulyagonja
held that O.9 r 10 lays down the general rule where no defense is
filed. It provides that in all suits that are not specifically provided for
in O.9, in case the defendant does not file a defense on or before the
day fixed, upon filing an affidavit of service the of summons upon the
defendant, the suit may proceed as if that party had filed a defense.
That the next step that should take place in the suit is setting it down
for hearing, i.e., if no judgment could be entered on the whole claim
without proof of it. In that regard O.9 r 11(1) applies for setting down
the suit for hearing. That notice of hearing of the suit is to be served
on a party who has filed a defense, not on one who has failed to file a
defense as required by summons issued to him/her. That when he
failed to file a defense, the defendant opened the door for the plaintiff
to proceed exparte in the suit which he did under the provisions of
O.9 r 11 (2) CPR. That O.9 r 11(2) does not require the plaintiff to give
notice to a defendant who has failed to file a defense. That the suit
proceeds exparte, that is in absence of the other party, the defendant.

Where both parties to suit have filed their pleadings but only the
plaintiff appears and the defendant does not appear when the suit is
called for hearing, the court may order that hearing proceeds exparte

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if it is satisfied that the summons or hearing notice was duly served-

O.9 r 20(1)(a) CPR.

In the case of Departed Asian Property Custodian Board vs. Issa

Bikenya t/a New Mars Wear House SCCA No. 18/1991 [1994-95]
HCB 60, the defendant had filed a written statement of defense
denying liability, case fixed by consent of the parties but did not
appear at the hearing. The Supreme Court upholding the decision of
the trial judge held that the learned judge properly addressed her
mind to the issue presented to her that the date of hearing had been
taken by consent and the registry would issue no further notice
unless the hearing date taken by consent was unacceptable to the
court. It was then for the advocate to keep in touch with the registry,
follow the call over of cases for hearing, and proceed according to the
consent date.

In the case of Fred Hereri vs. A.G HCCS No. 42/1995 summons to
enter appearance were issued to the defendant and filed a
memorandum of appearance. A hearing date was fixed and duly
served to the defendant but the Commissioner, Civil litigation
inscribed a note on the original copy of the hearing notice. Below the
note he appended his signature and title. The note read as below;

‘Late service accepted. The service is late. We cannot prepare to come to

mbarara to defend. We need to requisition for money from Finance
which cannot be done now. Let a new date be given and communicated
to us well in time for us to prepare’

It was held that if the note was intended for the court’s attention, then
it was of no effect. That court held in Byamani (Uganda) Ltd vs. L.
Sserwanga, (1975) HCB 86 that seeking adjournment by telephone,

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letter or note such as one in the instant case does not constitute an
appropriate method of applying for adjournment. An adjournment
cannot be granted on basis of such a note. That beside, from the time
of entering appearance up to the date of service of relevant hearing
notice, 4 yrs had passed and the defendant had not filed any defense
in the matter. The defendant had effectively placed himself out of the
court. A.G vs. Ssengendo (1972) E.A 356 and Ssebunya vs. A.G (1980)
HCB, 69. That in the circumstances an order granted for the case
proceed ex parte in accordance with O.9 r 17(a) CPR.

In all suits not otherwise specially provided for by O.9 in case a party
does not file a defense within the prescribed time and the plaintiff has
filed an affidavit of service within the provisions of O. 9 r 5 CPR, the
suit may proceed as if that party had filed a defence-O.9 r 10 CPR.

Other judgments besides default by the defendant include;

iv) Judgment on Admission [ the law, Procedure and Practice

O.13 r 6 CPR provides that any party may at any stage of a suit,
where an admission of facts has been made, either on the pleadings
or otherwise, apply to the court for such judgment or order as upon
the admission he or she may be entitled to, without waiting for the
determination of any other question between the parties; and the
court may upon the application make such order, or give such
judgment, as the court may think just.

In the case of Central Electrical International Ltd vs. Eastern

Builders & Engineers Ltd HCMA No. 176/2008 an application by
notice of motion brought under O13 r 6 CPR and S. 16-29 Evidence
Act for orders by the applicant /Plaintiff that judgment on admission
be entered against the respondent/Defendant in favour of the

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Applicant/Plaintiff for US$48,598.79 and costs be provided for.

Justice Lameck Mukasa held that O.13 r 6 CPR enables either party
at any stage of the suit to apply for judgment on the admission which
have been made by the other party. However a judgment on
admission is not a matter of right but at the discretion of the Court. If
a case involves questions which cannot conveniently be disposed of on
motion under this rule, the court may exercise its discretion, refuse
the motion. The admission can be in pleadings or otherwise. But such
admission must be clear and unequivocal. That the admissions which
are claimed to have been made by the respondent are contained in the
respondent’s plaint filed in HCCS No. 856/2005 where the parties
were Eastern Builders and Engineers Ltd (Plaintiff) and the Attorney
General of Uganda(Defendant). That the instant suit was filed in
February 2008. The applicant is not a party to the suit where the
alleged admission is made. That the admission upon which judgment
can be based should be made either on the pleadings or otherwise in
the suit before court. That he was strengthen by the holding of Justice
CK Byamugisha in Sietco vs. Impregico Salim J.V. HCCS No. 980/1999
wherein she stated; ‘In the instant case admission which the
defendant made are at an interlocutory stage and therefore satisfied
the requirement of ‘at any stage of the suit’’’. That in the instance case
the admissions upon which the applicant based its application were
not made at any stage of the suit but made in 2008 before the filing of
the suit and in another suit. That neither the pleadings not any of the
documents filed by the parties in this suit shows an admission of the
applicant’s claim by the respondent.

The procedure for applying judgment on admission may be by oral

application where the admission is made in the course of the

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proceedings and a formal application by notice of motion where the

application is made by the pleadings

v) Consent Judgments, Compromises [the law, Procedure and

Practice

O.25 r 6 CPR provides for compromise of suits. That where it is

proved to the satisfaction of the court that a suit has been adjusted
wholly or in part by any lawful agreement or compromise, or where
the defendant satisfies the plaintiff in respect of the whole or any part
of the subject matter of the suit, the court may, on the application of
a party, order the agreement, compromise, or satisfaction to be
recorded, and pass a decree in accordance with the agreement,
compromise or satisfaction so far as it relates to the suit.

In the case of Bank of Baroda (U) Ltd vs. Ataco Freight Services
Ltd SCCA No. 45/2007 the issue was whether a compromise within
the meaning of O.26 r 6 was reached. Twinomujuni JA held that the
elements of a compromise within the meaning of O.26 r 6 CPR are as
follows;

a) It must be lawful
b) The parties must agree to it
c) It must relate to issue in the suit
d) A decree must be passed in respect of the same
e) It must be recorded

That the proceedings did not amount to a compromise in law for the
following reasons;

First what was agreed upon by the parties did not relate to the issues
in the suit. The purported compromise did not adjudicate on whether

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the applicant was liable to the respondent as claimed. Secondly no

decree was passed and recorded.

A consent judgment is only valid and enforceable if it is voluntarily

executed by parties or by their respective advocates duly instructed to
consent.

In the case of Geoffrey Gateete & Anor. V William Kyobe SCCA

No.7/2005 the respondent had obtained a consent judgment against
a business firm of three partners. Mulenga JSC held that there was
no legal support to a consent judgment where service was on one
partner who then submitted to the judgment to bind the other
partners notwithstanding that those others knew nothing about the
suit and did not submit to the judgment.

Once a consent judgment is duly endorsed by court, it can only be

challenged on any of the grounds that would vitiate a valid contract.

In the case of George William Kateregga versus Commissioner

Land Registration & Others HCMA No. 347/2013 Justice Bashaija
defined a consent judgment from the Black’s law Dictionary (8th
Edition) as ‘Consent Judgment-A judgment, the provisions and terms of
which are settled and agreed by the parties to the action’’.

‘Agreed Judgment’ which is analogous to ‘consent judgment’ is also

defined in the same dictionary as; ‘A judgment entered on agreement of
the parties which receives the sanction of the court, and it constitutes a
contract between the parties to the agreement, operates as an
adjudication between them and when court gives the agreement its
sanction, becomes a judgment of the court’

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That even if parties other than the applicants drafted consent

judgment over the suit land which was sanctioned by the court, it
necessarily became judgment of the court. The effect was that the
applicant would be bound by it notwithstanding that he was not privy
to the consent agreement or suit, which renders the judgment in that
case a judgment in rem. That a judgment in rem invariably denotes
the status or condition of property and operates directly on the
property itself. It is a judgment that affects not only the thing but also
all persons interested in the thing, as opposed to the judgment in
personam which only imposes personal liability on a defendant.

However where judgment has been passed by a court of competent

jurisdiction and the aggrieved party appeals against the decision, it is
not possible for the parties to legally execute a consent whose effect is
to reverse a judgment of the lower court.

In the case of Edith Nantumbwe & 3Ors vs. Kuteesa CACA No.
294/2013 held that a consent judgment is basically an agreement
between parties. It cannot grant to the parties powers which they
would otherwise not possess whilst making an agreement. Parties to a
suit cannot legally agree to direct a person who is not a party to the
agreement or the consent judgment to do anything he or she has not
consented to do. That the commissioner of land registration has a
right to be heard. That since the agreement was entered into without
the commissioner of land registration being a party, and the consent
affects him, it cannot stand on that ground alone. It is therefore null
and void in so far as it relates to all parties who are not signatory to
that consent. That parties to a suit cannot determine by consent
issues of law and make declarations of law. That the general rule is
that this court or any appellate court will not allow an appeal to be

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settled by consent. There is no law providing for consent judgment on

appeal. That this proposition of law is set out in Slaney vs. Keane
[1970] Ch 243, where it was stated that; ‘An appeal of course could be
dismissed by the consent of the appellant thereby merely giving up his
right of appeal and the decision of the court or tribunal below is left
standing. Under the general law an appellate court will not allow an
appeal by consent. If it were to do so, it would be making an order
holding that the decision below was wrong and it would be doing this
merely on agreement of the parties and without hearing the case.’ That
in the case of Bulasio Konde vs. Bulandina Nankya, court of Appeal
Civil Appeal No. 7/1980 the learned justices of Appeal held, ‘The law
as enunciated in these cases shows that;-

1. The parties cannot by consent reverse a judgment of the court

2. Only an appellant court can reverse a decision of the court below
after hearing an appeal
3. Issues of law cannot be subject to consent orders’
That since the withdraw requested by the parties would have the
effect of reviving a consent judgment in this court that is a nullity
on account of an illegality, we decline to grant it.

In uncontested cases and cases in which the parties consent to

judgment being entered in agreed terms, judgment may be entered
by the registrar.-O.50 r 3 CPR.

Topic 4

SETTING ASIDE OF JUDGMENTS AND DECREES

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Effect of judgment

A judgment of a court of law is binding on the parties who must comply

with it or be subject of execution proceedings or other sanctions. It
follows that once a judgment is pronounced by a court of competent
jurisdiction unless appealed or set aside must be complied with.

In the case of The Protector & Gamble Company vs. Kyobe James
Mutisho & 2Ors HCMA No. 135/2012 Kiryabwire J as then he was,
held that a party who knows of an order, whether null or valid, regular or
irregular, cannot be permitted to disobey it. It would be most dangerous
for parties to a suit, or their solicitors to themselves to judge whether an
order was null and void, regular or irregular. Such parties should come
to the court and not take it upon themselves to such a question. The
course of a party knowing of an order which is null and irregular is plain.
The party concerned should apply to court that it might be discharged.
As long as the court order exists, it must not be disobeyed.

Setting Aside of Judgment and Decree under Order 36 r. 11

O.36 r 11 CPR the court may set aside a decree of a default judgment in
summary suit, if satisfied that the service of the summons was not
effective, or for any other good cause, which shall be recorded, and if
necessary stay or set aside execution, and may give leave to the
defendant to appear to the summons and to defend the suit, if it seems
reasonable to the court so to do, and on such terms as the court thinks
fit.

In the case of Ali Ndawula & Anor. V R.L Jain HCMA No.0624of
2008, the applicant had filed an application for unconditional leave to
appear and defend a summary suit but the applicant and his counsel did
not turn up of the hearing of the application which was dismissed under

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O.9 r 22. The applicant then brought an application by notice of motion

under s.98 CPA, O.36 r 11 and O.52 r & 3 CPR seeking orders that the
judgment or orders against the Applicant /1st defendant be set aside, be
granted unconditional leave to appear and defend. Justice Lameck
Mukasa held that under O.36 r 11 CPR a decree may be set aside for
either (i) no effective service of the summons or (ii) other good cause.
That the applicant instructed his advocates to file an application on his
behalf for leave to appear and defend main suit but the lawyers did not
inform the applicant for having date and did not inform the applicant for
the hearing date and did not attend court on the hearing date resulting
into dismissal of the application. That considering the reasons, the
applicant had a good cause for his failure to personally attend the
hearing and he cannot be condemned for his counsel’s negligence. That
however in the case of Arocha vs. Kassim (1978) HCB 52, it was held that
before setting aside an exparte judgment the court has to be satisfied not
only that the defendant had some reasonable excuse for failing to enter
appearance but that there is merit in the defense or in the case itself.
This holding was cited with approval in Senyange vs. Naks Ltd (1980)
HCB 30. That it is not enough for the applicant to merely deny that he
owes money to the respondent. The affidavit in support seeking leave to
defend the suit the 2nd defendant admits being a guarantor to the
transaction. The court cannot keep a blind eye to the admission on
record. That considering all the above, the application has no merit to
warrant its reinstatement.

Setting Aside of Judgments and Decrees under O.9 R.12

The marginal note to O.9 r 12 suggests that it is applicable to only

setting aside only exparte judgments. The rule itself empowers court that

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has passed the decree arising out of any judgment entered pursuant to
any of the proceeding rules to it aside on such terms as the court may
deem fit.

It therefore follows that an applicant in an application to set aside

judgment under O.9 r 12 must satisfy the following;

i) A judgment sought to be set aside must be passed pursuant to the

preceding rules to r. 12 namely; a default judgment under O.9 r
6&7, interlocutory judgments under O.9 r 8 and exparte judgment
under O.9 r 11(2).
It is therefore not correct to argue that only exparte judgments can
be set aside under O.9 r 12.
ii) The applicant must also prove that he or she was prevented by
sufficient cause from entering appearance. O.9 r 12 is silent on the
grounds of setting aside implying that the court has unlimited and
unfettered discretion to allow or disallow the application for setting
aside .

Despite the absence of a specified ground for the application under

O.9 r 12, the court is guided by sufficient cause which is not
defined by the rules but means any good reason that prevented the
applicant from filing a written statement of defense within a
requisite time.

The applicant has to prove that he or she was not served with the
summons or if they were served the service was not effective and
never got to know of the pending suit against him. The burden of
proof lies on the applicant to satisfy court that the reasons
advanced constitute sufficient cause to warrant setting aside of the
judgment. The court normally considers the conduct of the

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applicant before and after judgment and where there is a belated

application the court is normally reluctant to allow it.

iii) The applicant must also demonstrate to court that he or she has a
defense that merits adjudication through hearing. The intended
defense must raise triable issues of law and fact that merit
adjudication.

In the case of Tweheyo vs. Barurengyera HCCA No. 11/2010

(2013), the appeal arose of of the ruling and order by Grade I
magistrate in which the trial court dismissed an application by the
applicant to set aside exparte judgment and have the suit heard on
merit. It was held that an application to set aside exparte judgment
is governed under O.9 r 12 CPR. The rule bestows on court wide
discretion to set aside exparte judgment but in so doing the court
must be satisfied that to do so would meet the ends of justice given
the circumstances of the case. That the circumstances that
warrant setting aside an exparte judgment are similar to those
under O.9 r 27 CPR. Firstly, court will usually set aside the
exparte judgment where it is proved that there has been no proper
service. See Wamini v. Kirima [1969] EA 172, Koruta vs. Mukairu
[1978] HCB 215. Secondly, the defendant must demonstrate not
only that he or she was prevented by sufficient cause from filing a
defense within the requisite period, but also that there is merit in
the case. See S.Kyobe Senyange vs. Naks Ltd [1980] HCB 31,
Nicholas Roussos v. Gulam H.H Viran, SCCA No. 3/1993, Nasaka
Farmers and producers Ltd v. Aloysius Tamale [1992-1993] HCB
203. In addition to the above, a defendant who wishes to have an
exparte judgment set aside should act reasonably and promptly
and in the event of delay in making the application, he or she

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should explain the reasons for such delay. See Nicholas Roussos v.
Gulam H.H Viran (supra). That in the instant case the trial court
was satisfied that summons could not be served in the ordinary
way and ordered substituted service instead. Based on the
provisions of O.5 r 18(2) CPR, the appellant’s argument are
implausible that he was not duly served merely because the service
was by way of substituted service. There is nothing on evidence to
show that the appellant could have been served in the ordinary
way. The trial court exercised its discretion and found that the
circumstances of the case merited service through substituted
service. That as to whether the defendant had a good defense to
the case, no ground of appeal was advanced by the appellant that
would be canvassed along that argument.

In the case of Emiru Angose vs. Jas Projects Ltd HCMA No.
429/2015, an application by Notice of motion under s. 34(1) and
98CPR, O9 r9 and O48 r 1& 2 and s.33 J.A for orders that
judgment passed exparte be set aside and applicant be allowed to
file a defense for the case to be heard on its merit, execution be set
aside and the applicant be discharged from civil prison. Among the
issue was whether there was effective service of summons on the
applicant. Justice Kiryabwire held that the law to set aside such
judgments is fairly well settled now. In the case of Mbogo & Anor
vs. Shah [1968] E.A 93 (CA) held that O9 r 9 gives the high court
unfettered discretion to set aside or vary an exparte judgment. The
reason for such a discretion appears to have been well articulated
in the case of Henry Kawalya vs. J. Kinyakwanzi [1975] HCB 372,
where Sekandi Ag. J (as he then was) held; ‘An exparte judgment
obtained by default of defense is by its nature not a judgment on
merit and is only entered because the party concerned failed to

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comply with certain requirements of the law. The court has the
power to dissolve such judgment which is not pronounced on the
merit of the case or by consent but entered especially on failure to
follow procedural requirement of the law.’ That there was a
procedural question as to whether there was effective service of
summons on the applicant. The rule of thumb here is that service
of summons should be effected on the defendant in person. Where
it is not practicable, then service 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 who was
not named. That in order to have effected service upon the said
receptionist, the receptionist could not only have to be agent of the
defendant but a recognized one at that within the meaning of O.3 r
1& 2. The evidence before court does not suggest that service of
summons on the applicant/defendant through receptionist was
that by way of an authorized agent as there is no mention of power
of attorney to that effect and there was no service.

Whereas the rule provides for parties aggrieved with the judgment
or decree as having locus to apply, that is not restricted to only
parties to the suit but the rule may be invoked by the third party
who is equally aggrieved by the decree or order. A party is said to
be aggrieved legally where a decree affects that party’s legal or
equitable interest in the subject matter of the suit.

The action is brought by notice of motion with an affidavit together

with summary of evidence.

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O.9 r 12 also extends to judgments entered by the registrar under

the provisions of O.50 CPR.

Setting Aside of Ex Parte Decrees Under Order 9 Rule 27

O.9 r 27 allows a defendant against whom a decree has been passed

exparte to apply to court that passed the decree to set aside or otherwise
vary the same on two grounds; 1. Non service of summons, 2. Any other
good cause.

Setting aside under O.9 r 27 is invoked where the exparte decree arising
out of an exparte judgment which arises from proceedings under O.9 r
20.

The applicant must either prove non service of summons/hearing

notice/sufficient cause which connotes interalia mistake of counsel,
negligence or omission, sickness of the parties or counsel.

The applicant must also demonstrate that other than the aforementioned
reasons, that he or she has a plausible defense that merit adjudication.

In the case of Al Hajji Abdi & Others versus Tropical Africa Bank
HCMA No. 260/2006(2013), the 1st applicant/defendant commenced the
application under the provisions of S. 98 CPA, O.9 r 24 and O.9 r 26 CPR
(before revision of the rules and O.9 r 27 after revision of the CPR) for
orders that the exparte decree/judgment entered against him is set aside
and he is heard in defense to the suit. Secondly that execution is stayed
pending the hearing and disposal of application. The grounds set out in
the notice of motion are that the applicant was prevented from attending
court when it ordered the suit to proceed exparte by sufficient cause
because he was out of the country on treatment. That before he left the
country, he had instructed lawyers but unknown to him they did not

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attend the court at any time to execute his instructions. Justice

Madrama held that service of hearing notice on an adult member of the
defendant’s family was meant to be service on the defendants who were
in Uganda. The applicant has proved that he was outside the jurisdiction
together with other defendants, therefore service of hearing notice has
not been made in a manner provided for under O.5 CPR (Kanyabwera vs.
Tumwebaze [2005] 2 EA 86 SC. Secondly where someone is outside the
jurisdiction of the court, service has to be made outside jurisdiction
under rule 22, 29 and 28 and not through substituted service. That O.9
r 27 provides for setting aside of the exparte decree issued against the
defendant and perusal of the provision shows that the defendant may
apply to the court which passed the decree for an order to set it aside if
the defendant satisfies the court that the summons were not duly served.
Secondly the defendant may satisfy the court that he was prevented by
any sufficient cause from appearing when the suit was called for hearing.
That in the plaintiff’s case it may be argued that the hearing notices were
not duly served because the defendant was outside the local limits of the
jurisdiction of the high court being a resident in the UAE. There is strong
evidence that the respondent was receiving treatment outside the
jurisdiction of the court at the time the suit was ordered to proceed
exparte against him and was outside for over three months. Secondly, in
case court is wrong on the question of service outside jurisdiction of the
court of the hearing notice as opposed to substituted service, the
question is whether the applicant has shown any sufficient cause for
failure to appear at the time when the suit was called for hearing. That
the conclusion of court is that the applicant was ill and undergoing
treatment in the UAE and was prevented by sufficient cause from
appearing in court within the wording of O.9 r 27 CPR. Thirdly as
regards merit of the suit, the question whether the plaintiff is responsible

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for failing to control the proper running of the staff entrusted under his
supervision and was therefore responsible for the financial loss was
heard and decided in the absence of the defendant’s defense. Lastly the
issue whether the application was made timeously, it was made within a
period of 6 months within time. That the question whether the applicant
made the acknowledgement under duress or not is a triable issue and
should be considered after hearing his defense. The applicant will be
given an opportunity to cross examine the plaintiff’s witness and proceed
with his own defense. Judgment and decree in the main suit set aside
against the applicant under O.9 r 27 CPR.

The application can be made where the execution is completed in which

case the applicant can also apply for setting aside that execution. Where
the execution is pending, it is prudent to apply for stay of execution as
well as an interim order of stay of execution.

In the case of Kawooya vs. Naava (1975) HCB 314, an advocate was
arrested prior to court hearing. It was held that this amounted to
sufficient cause under O.9 r 24 (now 27)

Distinction between O.9 r 12 and O.9 r 27 lies in the following;

i) It is only a defendant against whom a decree has been passed

can apply under r 27 but not to third parties
ii) The grounds for setting aside an exparte decree in rule 27 is
specif and court’s discretion is limited to those grounds while
under r.12 are unlimited.
In the case of Forthill Bakery Supply Co. vs. Wangoe [1958]
EA 118, Court discussed the difference between O.9 r 12 and
O.9 r 27 and held that O.9 r 9 (now 12) give the court wide
powers of discretion to set aside a judgment passed in

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pursuance of the proceeding rules of O.9 i.e 1-8 or O.46 (now

50) and the reasons for setting aside such judgment are
unlimited. O.9 r 24 (now 27) on the other hand applies in any a
case in which a decree has been passed exparte against a
defendant and the decree can be set aside only if the defendant
/applicant satisfies court that the summons were not duly
served or that he or she was presented by any sufficient cause
from appearing when the suit was called for hearing.
In the case of Nicholas Roussos vs. Gulam H.H Viran and 2
Ors SCCA No. 3/1993 it was held that;
i) There are specific provisions in law governing applications
to set aside exparte judgments. These provisions are
contained in rule 9 (now 12) and 24 (now 27) of O.9 CPR
ii) There was sufficient authorities establishing the
principles applicable to rule 9 and 24 and these
authorities show that the principals applicable to the
rules are different.
iii) O.9 r 9 (now 12) gave the court unlimited or unrestricted
discretion and in contrast under O.9 r 24 (now 27) the
applicant has to show sufficient cause for not appearing.
[See Patel v. E.A Cargo Handling Services (1974) and Sebei
District Administration vs. Gashali (1968) EA 300)
iv) As regards the principles upon which discretion under
rule 27 may be exercised, the courts have attempted to
lay down some grounds or circumstances which may be
accepted as sufficient cause:
a) A mistake by an advocate though negligent may be
accepted as sufficient cause. [Shabin Din vs. Ram
Parkash Anand (1955) 22 EACA 48

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b) Ignorance of procedure by unrepresented defendant

may amount to sufficient cause [Zirabamuzale vs.
Correct (1962) EA 694]
c) illness by a party may also constitute sufficient cause
[Patel vs. Star Mineral Water and Ice Factory (1961) EA
454
d) Failure to instruct an Advocate is not sufficient cause
[Mitha vs Ladak (1960) EA 1054]
v) The principles applicable to rule 12 and rule 27 of O.9 are
clearly different and the learned judge erred in holding
that they were the same.
vi) Where the Plaintiff sets down the suit for hearing exparte
under rule 8 or rule 8A, and obtains judgment, the proper
rule under which to bring an application for setting aside
the exparte judgment is rule 24. [See vs. Star Mineral
Water and Ice Factory (1961) EA 454, Zirabamuzale vs.
Correct (1962) EA 694].

In the case of Departed Asians Property Custodian Board vs.

Uganda Blanket Manufactures [1973] Ltd (1982) HCB 119,
held

i) Rule 9 (now 12) of O.9 CPR has a wider application than rule 24
(now 27) thereof. Although marginal notes to it referred only to
exparte judgment, it empowers a court to set aside any
judgment passed in pursuance of any of the proceeding rules of
that order whether judgment was exparte or not. Similarly the
courts discretion is unlimited as to reasons for setting aside
judgment.

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ii) O 9 rule 24 of the Civil Procedure Rules on the other hand I

slimited only to exparte decrees which court has mandatory
powers to set aside where the party applying satisfies court that
the summons were not duly served or that he was prevented by
any sufficient cause from appearing when the suit was called
for hearing.
iii) A reasonable approach to the application of these rules to any
particular case would be for the court to first ask itself whether
any material factor appears to have entered into passing of the
exparte judgment which would not or might not have been
present had the judgment not been exparte, and then, if
satisfied that such was or may have been the case, to determine
whether in light of all the facts and circumstances both prior
and subsequent of the respective the parties it would be just
and reasonable to set aside or vary the judgment if necessary
upon terms to be imposed.

Setting Aside Consent Judgments

Generally a party to a consent judgment may in appropriate cases be

aggrieved with the decision of court if it was procured by fraud,
misrepresentation, duress and undue influence or any other factor
vitiating a valid contract. The appropriate recourse is to proceed under
s.98 by invoking the inherent powers of court or apply for review and
setting aside under O.46 CPR.

In the case of Matovu & Matovu Advocates vs. Uganda Electricity

Generation Co. Ltd, The A.G HCMA No. 0172/2010 Court stated that
setting aside a consent judgment is not a simple task. Courts are very
reluctant to interfere with agreements or contracts freely entered into by
the parties. A consent decree is passed on terms of a new contract

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between the parties to the consent judgment and so when the applicant
argues that after recording a consent judgment the parties thereto
cannot now raise issues behind it i.e the question of representative order
and that the instructions it cannot be faulted. If any authority were
required to support this point of law, the leading one is Brooke Bond
Liebig (I) Ltd vs. Mallya [1975] E.A 266 where court held that a consent
judgment may only be set aside for fraud, collusion or for any reason
which would enable court to set aside an agreement.

In the case of Peter Mulira vs. Mitchel Cotts Ltd CACA No. 15/2002, a
consent judgment had been recorded and by ruling costs awarded to the
respondent. Counsel for the respondent prepared a decree but the
appellant counsel refused to sign on ground that the appellant had never
consented to a judgment as entered by the learned trial judge. The trial
judge ruled that the case had been settled by consent between the
parties. On appeal it was held that the law regarding consent judgment is
that the parties to a civil suit are free to consent to a judgment. They
may do so orally before a judge who then records a consent or they may
do so in writing and affix their signature on the consent. In that case still
the court has to sign that judgment. A consent judgment may not be set
aside except for fraud, collusion or ignorance of material facts. See
Brooke Bond Liebig (I) Ltd vs. Mallya [1975] E.A 266. That the issue to be
recorded was whether there was a consent judgment properly recorded
by the learned trial judge. That the appellant had consented to the
judgment as recorded by the trial judge. It is a law (O.22 r 6 CPR) that
before recording a settlement a judge must be satisfied that the parties
have agreed. In order to be satisfied the judge has to listen to what the
parties say. When a party says that he has disagreed and later says that

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he has now agreed, the judge takes the latter that there is a change of
mind and the party has agreed. In the circumstances the learned trial
judge was right to believe that the parties had reached a compromise.
Not only the appellant’s counsel consented to the judgment, but the
appellant was present and participated in framing the terms of the
settlement.

In the case of All Sisters Co. Ltd vs. Guangzhou Tiger head Battery
Group Co. Ltd HCMA No. 307/2011, an application filed by notice of
motion under s.98 CPA and O.52 r 1 & 3 CPR for orders that a consent
judgment be set aside on ground that it was procured through fraud and
deceit. On a preliminary objection about the procedure, Justice Madrama
held that as far as citation of a wrong law or wrong procedure in an
application is concerned, the case of Saggu vs. Road master Cycles (U)
Ltd [2002] 1 EA 258, being a decision of court of appeal at Kampala,
restated the law that wrong procedure or wrong citation of law would not
invalid proceedings if it does not go to jurisdiction or cause prejudice to
the opposite party. The general rule is that where an application does not
cite any law at all or cites a wrong law, but jurisdiction to grant the order
sought exists, then the irregularity or omission can be ignored and the
correct law inserted. Substance of the dispute should be investigated and
decided on the merits and not necessarily debar a litigant from pursuit of
his rights. S.98 CPA which preserves the inherent powers of court to
make such orders as meets of the ends of justice may be invoked to
arrive at justice in the circumstances of the case. The basic principle is
that the opposite party has been notified of the claim or matter brought
against it and had an opportunity to respond and defend it. That an
application to set aside a consent judgment may be made by notice of
motion for review or it may be made by a plaint. Secondly that the
grounds for setting a side a consent judgment are set out in the case of

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Hirani vs. Kassam 19 (EACA) 131, the case was quoted by Law Ag. P in
the case of Brooke Bond Liebig (I) Ltd vs. Mallya [1975] E.A 266 at page
269; ‘the circumstances in which a consent judgment may be interfered
with were considered by this court in Hirani v. Kassam (EACA) 19 EACA
131 where the following passage from Seton of judgments and Orders, 7th
Edition Vol, 1 page 124 was approved,

‘primafacie, any order made in the presence and with the consent of
counsel is binding on all parties to the proceedings or action, and on those
claiming under them… and cannot be varied or discharged unless
obtained by fraud or collusion or by an agreement contrary to policy of
court…or if consent was given without sufficient material facts, or in
misapprehension or ignorance of material facts, or in general for any
reason which would e3nable court set aside an agreement between the
parties’’

That a consent judgment filed in court is a contract and its endorsement

by court only gives it more solemnity and backing of court process than
an ordinary contract without seal of court. The fact that a consent order
remains a contract was held in the English case of Huddesfield Banking
Co. Ltd v. Henry Lister & Son Ltd (1895) 2 CHD. P. 273, Lindley L.J at
280;

‘I have not the slightest doubt that a consent order can be impeached, not
only on the ground of fraud, but upon any ground that would invalidate it.
It is expressed in a more formal way than usual…To my mind the only
question is whether the agreement upon which the consent order was
based can be invalidated or not. Of course if the agreement cannot be
invalidated the consent order is good..’’

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Topic V

THE TRIAL AND PRE-TRIAL PROCEDURES

The Powers and Roles of the Registrar-O.50 CPR.

Before a matter comes up for hearing, parties have to file a suit and must
have exchanged their pleadings in accordance with the Civil Procedure
Rules. This involves activity on part of the court like the issuing of
summons and hearing notices and receipt of all documents the parties
intend to rely on in the prosecution or defense of the case.

Sometimes interlocutory matters may arise to be handled by the

registrar. O.50 r 1 and 5 CPR provides that whenever in the CPA or CPR
or any Act of parliament or other law, it is provided that any act,
undertaking, inspection, proceeding or thing may be carried out or done
before or by a judge or commissioner or an officer appointed by the
court, that act, undertaking, inspection, proceeding or thing may be
carried out or done before or by the registrar.

However under O.50 r 7 CPR the registrar may refer any matter to a
judge for decision and the judge may either dispose of the matter or refer
it back to the registrar with such directions as he /she may think fit.

The registrar has powers under O.50 r 2 to enter judgment in

uncontested cases and cases in which parties consent to judgment being
entered in agreed terms.

All formal steps preliminary to the trial and all interlocutory applications
may be made and taken to the registrar-O.50 r 3 CPR. In the case of
Gomil (U) Ltd vs. Latex (U) Ltd HCCS No. 196/90, it was held that a
registrar has jurisdiction to deal with and make orders in all

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interlocutory applications including the granting of an interim

injunction.

Interlocutory applications refers to all proceedings, applications or

actions made during the trial of the suit which do not determine and
dispose of the matter in dispute finally but are necessary before hearing
or judgment of the suit. Examples include applications for service of
summons, interim orders etc.

The registrar is also responsible under O.50 r 4 for execution of court

orders, judgments and decrees. He can make a formal order for
attachment or sale of property and issue a notice to show cause on
application for arrest and imprisonment in execution of a decree of the
High Court.

When exercising powers under O.50 r 1, 2, 3 and 4, the registrar is

regarded as a civil court-O.50 r 6. This means that a decision is binding
as if it was made by a judge of the High Court but there is a provision for
appeal to a judge if the party affected is dissatisfied. Under O.50 r 8, any
person aggrieved by an order of the registrar may appeal to the high
court by notice of motion.

Where the registrar exceeds his jurisdiction of powers by acting in a

manner not authorized by law, any order or judgment made is a nullity
in law and it cannot stand.

In December 2002 the Chief Justice of Uganda pursuant to O.50 CPR

and in order to ensure expeditious disposal of cases, issued Practice
Direction No. 1 /2002 on judicial powers of registrar in which the
registrars were given more powers to entertain matters. In the case of
Mohammed Kalisa vs. Gladys Nyangire Karumu CACivil Reference
No. 139/2013 held that Practice Direction 1 of 2004 is a case

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management tool to ease the work of justices of this court. It does not in
any way remove jurisdiction from them. Case management can be
defined as a sequencing of proceedings before a court with a view of
ensuring that the cases are heard expeditiously, in most efficient and
cost effective manner within the existing rules of procedure. Examples of
this will relate to matters of filing, time frames, scheduling conference,
alternative disputes resolutions, interlocutory applications, discoveries
and interrogatories to mention but a few. This may be done through
rules as was done under O 12 CPR or Practice Direction as in PD1 of
2004. That enhancement of judicial powers of registrars started with
Practice Direction No. 1 of 2002 (PD1 of 2002) affecting the Civil
Procedure Rules in the High Court. This had the effect of introducing
rule 10 to O.50 CPR. PD1 of 2002 provided; ‘…pursuant to O.50 of Civil
Procedure rules and in Order ensure expeditious disposal of cases, the
powers of the registrars shall include, but not limited to entertaining
matters under the following Orders and Rules..’’ That the purpose of the
direction is to assist judges expedite the hearing of the cases.

The registrars were given more powers to entertain matters under the
following orders and rules;

a) O. 1 r 8-Obtaining leave of court to file a representative suit. Rule

14 notice to third party. Rule 15 default appearance by third party.
Rule 16 judgment against third party in default
b) O. 5 r 1(2)-Extension of time to effect service. Rule 3 dismissal for
failure to serve. Rule 18 substituted service. Rule 22 service
outside jurisdiction.
c) O.9 r 16 Suit dismissed upon failure to pay court fees. Rule 19
dismissal of suit where summons unserved and plaintiff fails for a
year to apply for fresh summons

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d) O.13 r 6 judgment on admission

e) O.16 r 10 Procedure where witness fails to comply with summons.
Rule 11 if a witness appears, attachment may be withdrawn. Rule
12 procedure if a witness fails to appear. Rule 13 mode of
attachment.
f) O.17 r 2 procedure where no application is made to restore a suit
adjourned generally. Rule 5 dismissal of suit for want of
prosecution. Rule 6 Suits may be dismissed if no step is taken for
2 years.
g) O.23 Attachment of debts. The entire order
h) O. 25 Withdrawal and adjustment of suits-The entire Order
i) O.26 Security for Costs. The entire Order

In the case of Royal Group of Pakistan vs. Mavid Phamaceuticals

Ltd HCMA No. 498/2012 Justice Madrama held that the power of
the registrar to hear applications under order 26 was conferred by the
Judicial Powers of Registrars [Practice Direction number 1/2002]
issued by the Chief Justice. Rule 9 of the Practice Direction confers
jurisdiction on registrars to hear the whole of order 26 on security for
costs. Originally applications under order 26 were handled by judges
of the High Court.

j) O.33 Suits by paupers. The entire order

k) O. 40 Arrest and attachment before judgment
l) O.52 r 2 Notice to parties

It is the duty of the registrar to review all pleadings submitted for filing in
court. If the pleadings are not properly drafted the registrar may reject
them. If they are properly drafted they will be endorsed and sealed by the
registrar in the space provided after the signature of the advocate or the
party if he/she is suing or defending in person. A copy of the pleadings is

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then put on the court file and the other sealed copies are returned for
service upon parties. For cases that are properly filed the pleadings are
put in a folder file and the registrar allocates them to judges for hearing.
The registrar keeps a registrar allocation book to ensure that there is
equitable distribution of cases among the judges. All judges are
competent to handle any dispute referred to court. Parties are not
allowed to demand that their cases be placed before a particular judge,
but they may object to a particular judge hearing their case for sufficient
reasons.

In each year a court is in vacation from 15th July to 15th August and from
23rd Dec to 7th Jan. During this period the court does not sit to hear any
civil case other than those found to be of an urgent nature in the opinion
of the presiding judge. (See the Court Vacation (amendment) Rules 1994
S.7 No. 187/94

It is also the duty of the registrar to act as a taxing master. After

judgment is delivered and an order is given for costs, the party awarded
costs drafts and files a bill of costs which is served on the opposite party
together with a taxation hearing notice notifying the party that the bill
will be taxed on a given date. On the date for taxing the parties may
consent to items in the bill or amount to be paid or they may fail to agree
and adopt to lead evidence to prove or disprove the costs.

The registrar also oversees the court bailiffs and auctioneers as they
carry out their duties. Once a bailiff has lodged an application for a
warrant of execution, it is the duty of the registrar to scrutinize the
application to ensure that the items to be attached and sold in the
execution of the decree are attachable and belong to the judgment debtor
and are actually equal to the amount being claimed. Court bailiffs are
mandated to file returns explaining how execution was carried out. In the

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case of Famous Syco Agency vs. M.R. Carrier & Anor H.C.C.S No.
88/92, it was held that a registrar acts as a court in execution
proceedings. He/she has powers of supervision over court bailiffs and
may legitimately intervene in execution proceedings. Where a decree is
against several judgment debtors severally and not jointly, the registrar
should make a formal order detailing which judgment debtor pays what
and by what method.

All proceedings, orders and judgments are registered and kept in the
registry which is overseen by the registrar. The notices, orders and
judgments written by judge or registrars constitutes official records in
respect of each case.

Registrars also act as accounting officers of the court. They are required
to have custody of and keep accounts of all fees and fees paid into the
court and expenses incurred by the court. They are required to submit
from time to time the books of accounts of the court to the controller and
the Auditor general who then forwards the money to the secretary to the
treasury-O.50 r 9 CPR.

Registrar also receive correspondences on behalf of judges. All letters to

judges are addressed to the registrar. You can’t write directly to the
judge. Registrars also answer queries from the public and on behalf of
the judges and the court generally, they act as PROs.

Mediation-

Mediation became a permanent feature at the Commercial Court with the

passing of the Judicature (Commercial Court Division) (Mediation) Rules,
2007. Following the success story at the commercial court, it was
decided to roll out mediation at all the courts with the getting of the
Judicature Court Mediation rules S.I No. 10 of 2013

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Mediation is now a permanent feature in all civil court processes. It is a

rollout of Alternative Dispute Resolution (ADR) from the High Court
Commercial Division to other courts and dispute resolution bodies within
the JLOS sector. ADR is a mediation process that allows parties to a
dispute find a quick solution with the assistance of a neutral third party,
without going through the costly and length court process.

Originally piloted in the commercial court, ADR is now being rolled out to
the High court Divisions of Civil, family, land and magistrate court. ADR
services will be available in the other JLOS dispute resolution bodies like
the industrial court, judicial service commission, Uganda Human Rights
Commission, the law council, the Directorate of Civil litigation, Uganda
Law society and the office of the Administrator General.

Cause listing of Cases and Service of Hearing Notices

Preparation of cause list is one of the administrative roles of the

registrar. A cause list is a weekly court rooster indicating particulars of
cases before the court, the hearing days and the dates and the names of
presiding judges of each week. Every judge and registrar is assigned a
clerk to keep records of all official transactions and correspondences
including particulars of cases allocated. In addition each judge or
registrar is also given a diary in which particulars of cases and their
hearing dates are indicated.

Before fixing or adjourning any case the judge and his clerk have to
consult this diary and the court programme to identify an appropriate
date. There’s also a court diary or computer data base where particulars
of cases and their hearing dates and other activities of court are
indicated. Towards the end of each week the registrar in consultation
with the clerk, judges and heads of division or circuits of the high court

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prepares a cause list for the following week in respect of each division /
circuit.

There are several civil law divisions of the High Court namely; Civil,
Commercial, Land, Family, Execution. There are also circuits of the High
Court namely Mubende, Jinja, Mbale, Soroti, Gulu, Arua, Fortportal,
Mbarara etc.

The typed cause list is signed by the principal judge/head of division or

circuit/ registrar. A copy of the cause list is pinned on the court notice
board, sent to all judges, registrars of court and other senior officials of
the judiciary. Any person can obtain a photocopy of the cause list from
the registry. In practice some cause lists are sent to email address of
members through the Uganda law society.

After the parties have filed and exchanged all the necessary court
documents, the court file will be allocated to a judge to take over and
conduct a trial to the end. In practice the plaintiff makes sure that the
file is allocated to a judge, takes out hearing notice and serves it to the
defendant notifying him or her of the dates and time of trial. A hearing
notice is summon of court, it must be dated, signed and sealed by the
court and indicate the date and time of the hearing and it should
indicate the purpose, whether the suit is coming for mention or for
hearing or scheduling. The hearing notice must be served in a manner
prescribed for service of summons. See Edison Kanyabwera vs. Pastori
Tumwebaze.O.9 r 11(1) provides that where pleadings are closed the
plaintiff is required to set down the suit for hearing by extracting hearing
notices and serving such notices on the other party.

The essence of service is to ensure that parties are heard and no one is
condemned unheard because hearing is a constitutional right under Art.

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28(1) of the constitution. See Tommy Otto vs. Uganda Wildlife

Authority HCCS No. 208/2002.

If the plaintiff does not do so, the defendant may take out a hearing
notice and serve it on the plaintiff or he may write a letter requesting the
registrar to dismiss the suit for want of prosecution. The suit may also be
set down for hearing by consent of all the parties. Counsel for the parties
agree on the date for hearing which is entered in a consent form which is
filed in court. A suit may also be set down for hearing by the court after
the pretrial process is concluded. Courts take an interventionist role to
check delays. The judge can fix a case for mention and notify the parties
or their advocates. During mention the judge and parties brain storm
generally about the case, its strength and weakness and main arguments
of both sides and explore the possibility of an amicable settlement
without the formal intervention of the court. The judge gives the parties
an option and time for them to decide whether to settle the matter
between themselves amicably or to proceed with court action. If the
parties fail to agree the case will proceed into a formal stage known as
scheduling conference.

Scheduling Conference, Scheduling Memorandum and Framing of

issues

The scheduling conference is a meeting where the parties with assistance

of the court do set out areas of agreement and disagreement leaving the
contentious issues for the actual hearing. The main purpose of the
scheduling conference is to give an opportunity of settlement.

Before formal hearing of the case, the judge is required by law to hold a
mandatory scheduling conference within 28 days from the date when the
last reply was filed in court to sort out points of agreement and

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disagreement, possibility of mediation, arbitration and any other form of

settlement-O.12 r 1(1) CPR.

In the case of Stanbic Bank (Uganda) Ltd vs. Uganda Cros Limited
SCCA No. 4 of 2004, Tsekooko JSC explained that the scheduling
conference was introduced by the new Order XB of the CPR. Because of
the rule (1) of that order, a trial court is expected to hold a scheduling
conference to sort out points of agreement and disagreement, the
possibility of mediation, arbitration and any other form of settlement.
Because the central issue in this case is reconciliation of figures, at the
scheduling conference stage parties should have produced properly
audited accounts of the respondents as part of the expert evidence and
try to narrow down points of disagreement. That is the stage when proper
issues would emerge and parties and the court would settle the real
issues to be tried and determined.

In the case of Tororo Cement Co. Ltd vs. Frokina International Ltd
SCCA No. 2/2002 Tsekooko JSC held that under the new Order XB of
the CP Rules, the holding of a scheduling conference in civil cases is
mandatory. See rule (1) thereof. The principle objective of the scheduling
conference is 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 the suit. After a scheduling conference and where it is necessary,
interlocutory applications can then be made and disposed of before the
suit is fixed for hearing. In that way the progress of the suit is managed
systematically. The holding of the scheduling conference will be a regular
feature in the trial of the civil cases by all trial courts.

However there is no scheduling conference on appeals. In the case of

Kassim Dungu vs. Nakato Nuliat & Anor HCCA No. 72/2002 it was

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held on the issue of holding a scheduling conference in appeal that

holding a scheduling conference under the Civil Procedure rules are to be
conducted by the trial courts in trial of civil cases as opposed to when
they are sitting as appellate courts.

Effect of failure to hold scheduling conference and framing issues

Failure to hold a scheduling conference and frame issues is an

irregularity but not fatal as long as the parties at the trial know what the
real question between them is, evidence is taken on it and court duly
considers it.

In the case of Peter Mulira vs. Mitchell Cotts Ltd CACA No. 15/2002
Kitumba JA held that while court appreciates that no scheduling
conference was held as required by law and no issues were framed as
required by law and no issues were framed, this did not prejudice the
appellant in any way. He freely consented to the judgment whose terms
were according to the record, carefully drafted by the parties.

Where the parties reach an agreement orders shall be made as under

Order 15, rule 6 and 7-012 r 1(2). Where parties do not reach an
agreement, the court may if is of the view the case has a good potential
for settlement, order alternative dispute resolution before a member of
the bar or the bench, named by the court which shall be completed
within 21 days after the order except time may be extended not
exceeding 15 days on application to the court, showing sufficient reasons
for the extension. -O.12 r 2 & 3.

All interlocutory applications not otherwise expressly provided for in the

CPR must be filed within 21 days from the date of completion of the ADR
or within 15 days after completion of the scheduling conference if no
ADR; that date shall be referred to as the cutoff date. The application

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must be served on the opposite party within 15 days from the date of
filing and the reply to the application to 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–O12 r 3CPR. Examples of
interlocutory applications include security for costs-O23 r 1 CPR and
Third Party notice –O 1 r 14 CPR.

The scheduling conference is used for resolving procedural and evidential

matters, making trial arrangements and ensuring that the parties have
complied with the relevant legal requirement. As agreements may be
reached at the scheduling conference, judges requires that other than
advocates instructed in the case, the parties or their representatives who
can make binding decisions should attend the scheduling conference.

At the scheduling conference, counsel for the plaintiff begins with an

opening statements which summarizes his/her client claim against the
defendant. Counsel for the defendant may also reply briefly to the
statement made by the plaintiff’s counsel. Both counsel then state the
agreed facts and documents to the judge who records the same. Issues
are then framed from the disputed facts or law. Counsel are required to
inform the judge about the documents and witness they intend to call
and rely on to prove their case. Documents which aren’t disputed or
contested may be tendered in as exhibits at this stage. These do not have
to be proved when leading witness but there should be a connection
between them and evidence adduced.

In the case of Administrator General vs. Bwanika James & Ors SCCA
No. 7/2003 Tsekoko JSC held that the scheduling conference must be
held in accordance with the requirements of OXB r 1 CPR. That rules 6
and 7 of Order 13 empower court to interalia frame issues on agreed
matters and enter judgment after due trial. That these provisions enable

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parties agree on non-contentious evidence such as facts and documents.

The agreed facts and documents thereafter become part of the evidence
on record so that they are evaluated along the rest of the evidence before
judgment is given. Indeed in as much as they are admitted without
contest, the contents of such admitted documents can be treated as
truth, unless those contents intrinsically point to the contrary, and if
they are relevant to any issue, their admission disposes of that issue
because the need for its proof or disproof would have been disposed of by
fact of admission.

In practice, court may order parties to file a joint scheduling

memorandum instead of appearing to conducting a conference before a
judge.

Framing of Issues

Issues generally flow from the pleadings filed by the parties and the
parties may frame issues in accordance with the provisions of O.15 CPR
with the guidance of court.

O.15 r 1 provides that issues arise when a material proposition of law or

fact is affirmed by one party and denied by the other. Material
propositions are those propositions of law or fact which a plaintiff must
allege in order to show a right to sue or a defendant must allege in order
to constitute a defense. Each material proposition affirmed by one party
and denied by the other shall form the subject of a distinct issue.

There are two kinds of issue. Issues of law and issues of fact. O.15 r 1(5)
provides that at the hearing of the suit court shall after reading the
pleadings, if any, and after such examination of the parties or their
advocates as may appear necessary, ascertain upon what material
proposition of law or fact the parties are at variance, and shall thereupon

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proceed to frame and record issues on which the right decision of the
case appears to depend.

In the case of Kahwa & Anor vs. UTC (1978) HCB 319 it was held that;

i) The framing and settlement of issues is governed by O13 (now

15) CPR. An issue is said to arise when a material proposition of
law or fact is affirmed by one party and denied by the other.
Material propositions are those propositions of law or fact which
the plaintiff must allege in order to show a cause of action or
the defendant to constitute a defense.
ii) Although issues generally arise out of pleadings, issues may
also arise out of the evidence adduced by the parties at the trial
since under O 13 r 3 CPR court may frame issues from
allegations made on oath by the parties or persons or advocates
on their behalf in additional to being framed from pleadings or
contents of documents produced by either party

The court may at any time before passing the decree amend the issues or
frame additional issues on such terms as it thinks fit, and all such
amends or additional issues as may be necessary for determining the
matters in controversy between the parties shall be made or framed-O.15
5 (1). The court may also at any time before passing the decree strike out
any issues that appear to it to be wrongly framed or introduced-O.15 r
5(2). Where a court amends issues, which parties had agreed upon, it is
necessary to give the parties the right to adduce further evidence or
address the court on amended issues to ensure that the rules of fair trial
as per the constitution are complied

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In the case of Jovelyn Barugahare vs. Attorney General SCCA No.

28/93 per Manyindo C.J held that;

i) From reading of the provisions of O13 rules 1(5) & 4, it’s clear
that issues are to be formed by court after consultations with
the parties or their advocates at the beginning of the trial. The
trial judge is not bound by those issue, on the contrary the
judge may amend the issues, strike out some of them or even
add new ones any time before passing the decree
ii) A trial court may frame issues on points not raised in the
pleadings but arising from matters stated by the parties or their
advocates on which a decision is necessary in order to properly
determine the dispute before the court.
iii) Where the trial court amends the issues it may be necessary to
give the parties the right to adduce further evidence and
converse on new issues by way of submission before a decision
is made on them.

In the case of Oriental Insurance Brokers Ltd vs. Transocean (U)

Ltd SCCA No. 55/1995 Order JSC held that under O.13 of the CPR a
trial court has the jurisdiction to frame, settle or determine issues in a
suit. At least two consequences appear to follow from the provisions of
O.13 r 1(5), 3 and 5(1) of the CPR. Firstly, atrial court has wide
discretion to frame or amend issues from all materials before it,
including pleadings, evidence of the parties and submission from
counsel. Secondly, the court may amend the issues or frame
additional issues at any time including during judgment. In doing so,
the court may impose such terms as it thinks fit.

The judge will then fix hearing date convenient to both parties and the
court when the actual hearing commence.

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Preliminary Objections

As a general rule where pleadings disclose a case which court is satisfied

will not succeed, court should strike it out or dismiss it altogether and
put a summary end to litigation to save court’s time and the costs
involved in litigation. These can be on courts own initiative or following
an application by any party to the proceedings. This application may be
formal or informal referred to as preliminary objection.

Preliminary objections by their very nature should be raised at the

commencement of proceedings since it is proper to bring to the notice of
court an alleged irregularity which must be cured before hearing a case.
The preliminary objections can be raised at the commencement of the
trial whether pleaded with in a WSD or not.

O.6 r 28 Points of law may be raised by pleading. Any party to a suit is

entitled to raise by his or her pleadings any point of law, and any point
so raised shall be disposed of by the court at or after the hearing except
by consent of the parties or order of court on application by either party
a point of law may be set down for hearing and disposed of at any time
before hearing.

In the case of Tororo Cement Co. vs. Frokina International Ltd SCCA
No. 2/2001 Tsekooko JSC stated and held as follows;

‘‘I start with the contention by the plaintiff that because the written
statement of defense did not indicate that the defense would raise a
preliminary point of objection, it was therefore not proper for the
objection to be raised as a preliminary point whether a plaint does or
does not 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

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written statement of defense. Obviously it is proper and good practice to

aver in the opposite party's pleadings that the pleadings by the other
side are defective and that at the trial a preliminary point of objection
would be raised. But failure to so plead does not in my opinion bar a
party from raising the point. There is, of course, advantage in raising a
likely preliminary point in the pleadings. This puts the opposite party on
notice so that that party in minded to put its pleadings in order before
court hearing. In that way Court's time may be saved if parties can sort
out preliminary matters in advance’’

Where issues both of law and facts are in the same suit and court is of
the opinion that the case or any part of it may be disposed of on issues of
law only it shall try those issues first and for the purposes of it may
postpone the settlement of issues of fact until after the issue of law have
been determined.

Under O.6 r 29 If in the opinion of court the decision of point of law

substantially disposes of the whole suit or any distinct cause of action,
ground of defense or setoff, counter claim or reply therein court may
dismiss the suit or make such order in the suit as may be just.

Any party to a suit may apply to strike out any pleading on the ground
that it discloses no reasonable cause of action or answer or that the suit
or defense is frivolous or vexatious-O.6 r 30.

O.6 r 17 and Art. 126 of the 1995 constitution of Uganda prohibits

raising of technical preliminary objections to any pleading on ground of
alleged want of form or otherwise.

In the case of Kasirye Byaruhanga & Co. Advocates V UDB S.C.C.A

No. 2 of 1997 (unreported) where it was held that

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“...a litigant who relied on the provisions of article 126(2) (e) must satisfy
the court that in circumstances of the particular case before the court it
was not desirable to have undue regard to a relevant technicality.”

Under O.7 r 11 a plaint shall be rejected where it does not disclose a

cause of action or where the suit is barred by any law or is shown by the
plaint to be frivolous or vexatious.

As a general rule preliminary objections are decided on the basis of

pleadings and facts not disputed without the necessity of calling
evidence. Thus in Western Steamship Co. Ltd vs. Amaral Sutherland
Co. Ltd [1914] II K.B 55 it was held that an order for a trial of a
preliminary point of law should not be made where there are facts in
dispute and if made may be set aside.

In the case of Ismail Serugo Vs. KCC & A.G SC Const. App No. 2/1998,
Justice Order JSC at page 23 of his ruling observed that;

‘’The point of law must be one which can be decided fairly and squarely
one way or the other on the facts agreed or not in issue or the pleadings
and not one which will arise if some facts or facts in issue should be
proved.’’

In the case of Translink (U) Ltd vs. Sofitra Cargo Services Ltd &
Others HCCS No.0561/2006Counsel for the defendants intimated to
court that he would be raising points of law. The said points of law were
framed as issues 1 and 2. Justice Bamwine held that at the time of
hearing the preliminary objections, the court had concluded the
scheduling conference where points of agreement and dis agreement
were sorted out. That the two matters raised are indeed points of
disagreement. They are partly points of law and partly points of fact.

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That as Law J.A. observed in Mukisa Biscuit Manufacturing Co. Ltd vs.
West End Distributors Ltd [1969] EA 696 at 700; ‘So far as I am
aware, preliminary objection consists of points of law which has been
pleaded, or which arises by clear implication out of pleadings, and which if
argued as a preliminary point may dispose the suit. Examples are
objection to the jurisdiction of the court, or a plea of limitation, or a
submission that the parties are bound by the contract giving rise to the suit
or refer the dispute to litigation’’.

Then at P.701 Sir Charles Nwebold, P. added:

‘A preliminary objection is in the nature what used to be a demurrer. It

raises a pure point of law which is argued on the assumption that all the
facts pleaded by the other side are correct. It cannot be raised if any fact
has to be ascertained or if what is sought is the exercise of a judicial
discretion.’’

And in NAS Airport Services Ltd vs. A.G of Kenya [1953] EA 53, it was
held that though the objection of a preliminary objection is expedition,
the point of law must be one which can be decided fairly and squarely
one way or the other, on facts agreed or not in issue on the pleadings
and not one which will arise if some fact or facts in issue should be
proved.

Court held that it was of the considered opinion that the grounds of the
preliminary objections advanced cannot be disposed of without ascertain
some facts. They are matters appropriately classified at a scheduling
conference as points of disagreement.

In the case of Eng. Yashwant Sidpra & Anor vs. Sam Ngude Odaka
HCCS No. 365/2007Justice Kiryabwire reviewed the law in relation to

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Preliminary objections to give a greater clarity to the law, the role of the
counsel and the judge in such matter.

In that case the defendants had in paragraph 3 of their defense made it

clear that they would object to the suit as being bad in law and seek its
dismissal. The defendant’s objections were largely grounded on the
plaintiffs not having complied with the prescribed procedure for
commencement of proceedings by a member of a company with respect
the remedies they want court to grant them. That noncompliance renders
the suit incompetent.

Justice Kiryabwire stated that a preliminary objection (sometimes

popularly referred to as a ‘PO’ at the bar) at common law is in substance
an ‘objection in point of law.’ Objections in points of law are
extensively discussed by the learned authors in the book ‘ODGERS’
Principles of Pleadings and Practice in Civil Actions in The High Court of
Justice’’. That P.147

“...Either party may object to the pleadings of the opposite party on the
ground that it does not set forth a sufficient ground of action, defense or
reply as the case may be...”

That under English law this is what was formerly called a

“demurrer”(from the French word demorrer “to wait or stay” a practice
abolished in England in (1883) but now called “an objection in point of
law”. The authors in Odgers (supra P.147) point out that an objection in
point of law was preserved largely so that parties might not incur great
expense in trying issues of fact which, when decided, would not
determine their rights. The learned authors in Odgers (supraP. 148) also
make the point that as a general rule

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“...It is best not to apply tohave any point of law argued before thetrial,
unless the objection isone which will dispose of the wholeaction...”

That the rationale for this is also well stated by the said learned authors.
The first reason is this as they rightly observe;

“...If the Defendant succeeds, the Plaintiff obtains leave, on paying the
costs of the argument, to amend his statement of claim, and it is better for
the Defendant that the Plaintiff should be driven to such amendmentat the
trial...”

Secondly, not raising the objection at the beginning of the trial is not
fatal.The learned authors further write;

“...You need not be afraid that, by omitting to apply, you are throwing
away chances of success – that the objection, if not taken at once, cannot
be taken afterwards...”

That two English cases well illustrate this point. The first is the judgment
of Sir Edward Cokein the case of The Lord Cromwell’s Case (1581) 4
Rep at P.14 (reproduced in Odgers supra P. 148 – 149) where he held

“...when the matter in fact will clearly serve your client although your
opinion is that the Plaintiff has no cause of action, yet take heed that you
do not hazard the matter upon a demurrer, in which, upon the pleading
and otherwise, more perhaps will arise than you thought of; but first take
advantage of the matters of fact, ad ultimum, and never at first demur in
law when, after the trial of the matters in fact, the matters in law(as in this
case it was) will be saved to you...”(emphasis added).

In other words, if the facts are in your favour it is best practice to take
advantage of them first as the law in any event will ultimately support

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you. This wisdom of Sir Edward Cokeis 427 years old but is still valid
today.

The second case is that ofStokes V Grant(1878) 4 C.P.D at P. 28 where

the celebrated Lindley J.(as he then was) had this to say

“...if the Defendant wants to avail himself of his point of law in a summary
way, he must demur; but if he does not demur, he does not waive the
objection and may say at the trial that the claim is bad on the face of it...”

That the nature of a preliminary objection was also extensively discussed

in our own East African Jurisdiction in the Court of Appeal decision of
Mukisa Biscuit Manufacturing Co. LtdVWest End Distributors
Ltd[1969] EA 696 Sir Charles Newbold(President of the Court as he then
was) at P. 701held

“...A preliminary objection is in the nature of what used to be called a

demurrer. It raises a pure point of law which is argued on the assumption
that all the facts pleaded by the other side are correct. Itc annot be raised
if any fact has to be ascertained or what is sought isthe exercise of judicial
discretion...”(emphasis mine).

In the lead opinion of Law(J.A as he then was) at P. 700 he observed

“...so for as I am aware, preliminary objection consists of a point of law

which has been pleaded, or which arises by clear implication out of
pleadings and which if argued as a preliminary point may dispose of the
suit. Examples are an objection to the jurisdiction of the court, or a plea in
limitation, or a submission that the parties are bound by the contract
giving rise to the suit to refer the dispute to arbitration..”

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That the position in the Mukisa Buiscuits case (supra) on preliminary

objections was upheld with approve by The East African Court of Justice
in the case of James Katabazi and 21 Others v The Secretary General
of The East African Community and The Attorney General of The
Republic of Uganda Reference No. 1 of 2007 (unreported).That this
expose an objection in point of lawis very instructive to this case and I
agree with it. A preliminary objection should be made if the party so
raising it is convinced that when raised the objection so raised will
dispose of the whole claim and thus save the parties expense and
embarrassment in trying facts that will not determine the rights of the
parties. Where an objection can be cured by the amendment with
adequate provisions as to costs, then it is a more efficient use of the
court’s time that amendment be secured at the earliest opportunity.
Indeed inOdgers(supra P. 153) It is written

“...It is customary at the common law Bar before advising an application to

be made (i.e. to strike out a pleading)... to communicate with your opponent
so that he may have an opportunity of amending his pleadings...”

That the authors in Odgers(supra P. 153) are actually more bold and
write

“...though you may think that your opponent’s pleadings discloses no

reasonable cause of action or defense to your claim, it by no means follows
that you should at once apply to have it struck out or amended. So long as
the statement of claimor the particulars served under it disclose some
cause of action, or raise some question fit to be decided by trial, the mere
fact that a case is weak or not likely to succeed is no ground for sinking it
out...”

That again I agree with the learned authors of Odgers in this regard.

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Adjournments

Procedure, Grounds

O.17 r 1 (1) provides that the court may if sufficient cause is shown, at
any stage of the suit grant time to the parties or to any of them and may
from time to time adjourn the hearing of the suit. In the circumstances
where the hearing can’t take place such as due to lack of witnesses, new
matters arising, having personal problems, sickness of counsel or parties
etc. the law provides for adjournment of hearing on application to the
court showing sufficient cause. E.g. where the party cannot proceed with
the case without prejudicing his or her case the result of which will be a
miscourage of justice.

The court has discretion to grant or refuse the adjournment but must be
done judiciously and reasonable manner. The rationale is that justice
requires a party to be accorded some time to get themselves ready if any
have genuine cause for not being ready.

In the case of Shabani vs. Karada Co. Ltd (1973) EA 497 It was held
that an adjournment can’t be granted as of right but can be granted for
sufficient cause. It involves the exercise of discretion and this must be
done judicially.

In the case of Nuru Kaaya vs. Crescent Transportation Ltd SCCA No.
6/2002 Court held that there two principles governing the exercise of
discretion. The first, is that when trial courts grant adjournments they
(courts) exercise judicial discretion. The second, is that an appellate
court will normally not interfere with the exercise of judicial discretion by
a lower court unless the lower court failed to exercise the discretion
judiciously. See Famous Cycle Agencies case

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In the case of Yahaya Kiriisa vs. A.G & Anor SCCA No. 7/94Manyindo
DCJ held that it cannot be right for a court to force an advocate to argue
a matter in which he or she is ill prepared on not prepared at all. That
will be a negation of justice to his client

In the case of Acaali Manzi vs. Nile Bank Ltd CS No. 87/93-1994 1
KALR 123, it was held that it was now accepted that applications or
adjournment by letter would not be accepted under normal
circumstances.

In the case of Sherif Yusuf vs. Phillip Kioko (1951) 24 (2) K.L.R. 75
held that a court cannot grant an adjournment at a request by letter of a
plaintiff who does not appear.

In the case of Salongo vs. Nantengolola (1976) HCB 290 held that if a
new matter arises at the trial which catches a party unaware, the party
is entitled to an adjournment to prepare his case to meet this new
matter.

Adjournment will be refused if it is a deliberate attempt to delay the

hearings.

In the case of Obiga Kania vs. Electoral Commission & Anor EPA
No.4/2011 Justice Murangira stated that the petition was given the last
adjournment and was fixed for hearing in the presence of the petitioners.
That the petitioner opted not to come with a lawyer to represent him, but
that he was not ready to proceed with the petition. That there is nothing
on the court record to show the whereabouts of the counsel for the
petitioner. That the firm representing the petitioner have other lawyers in
the firm but did not find it prudent to send one to prosecute the petition
in court. That the petitioner’s failure to prosecute his petition when it
was the last adjournment offends O.9 r 22 and O.17 R 4 & 5 CPR.

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Application can be made orally at the trial.

Where the judge is absent, the parties go to the registrar to adjourn their
case or they can set another hearing date by consent and file a consent
form especially where the judge has not given his or her diary to the
registrar or clerk.

Where on the date of hearing the court is ready to hear the matter but
witnesses or an advocate does not appear on time when the court wants
to hear the case, it can stand over the case to give the parties or their
advocate more time to establish what is happening and report on the way
forward. Mere absence of a party or witness alone is not enough reason
to seek an adjournment, his/her presence must be crucial or material on
an indicated issue. Grant of an adjournment is discretionary, court will
refuse to grant adjournment in cases of un explained absence.

Where the party applying offers to pay costs, the court will normally
allow an adjournment. Where an adjournment is granted, costs may be
paid by the applicant but where the adjournment is not as a result of the
faulty of any of the parties, costs may be in the cause i.e follow the
results of the case or may be shared by the parties i.e each party pays its
own costs as the court may decide

Prosecution of suits

Generally after the parties have filed and exchanged their respective
pleadings and the court has received all the pleadings and the court has
received all the necessary documents which the parties intend to rely
upon, the suit is set down for hearing. The parties will proceed to hear
their claims or defense by calling evidences which may be oral testimony
of witnesses or documentary evidence inform of exhibits. The hearing
may be initiated by the plaintiff by taking out and serving hearing notices

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upon the defendant where he or she filed a written statement of defense.-

O.9 r 11(1). Hearing may also be initiated by court by serving hearing
notices to the parties O.9 r 13 CPR.

The parties may attend Court in person or their respective advocates or

their recognized agents and the suit will be heard on the day fixed on the
hearing notice, summons or motion unless the hearing is adjourned to a
future date fixed by the court-0.9 r 14CPR. When neither parties appear
when the suit is called for hearing, the court may dismiss the suit-O.9 r
17 CPR

The court may from time to time adjourn the hearing of the suit either by
fixing a day for further hearing or generally-O.17 r 1 CPR. Once the
hearing of the evidence has begun, hearing of the suit should be
continued from day to day until the witnesses in attendance have been
examined unless the court finds it necessary to adjourn beyond the
following days-O.17 r 1(2a). Where the hearing of the suit has been
adjourned generally, either party may apply to restore the case for
hearing O.17 r 1 (2b).If no application for restoration is made for a period
of 12 month from the date of the last adjournment, the court may give
notice to the parties to show cause why the suit shouldn’t be dismissed if
a cause isn’t shown to the satisfaction of the court, the suit shall be
dismissed-O.17 r 2CPR.

Where hearing of the suit has taken off and the party to suit has been
given time to produce evidence or cause the attendance of his or her
witnesses or perform any other act necessary for further progress of the
hearing, the court may proceed after the time allowed has elapsed –O.17
r 4 CPR.

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Default by the Plaintiff

O5 r 1 CPR provides that when a suit has been duly instituted summons
may be issued to the defendant ordering him/her to file a defense or to
appear and answer a claim on a day specified therein. The summons
should be effected within 21 days from the date of issue but the plaintiff
may apply for extension of the time for service within 15 days after the
expiration of 21 days. If service has not been effected within 21 days
from the date of issue and there is no application for extension of time or
the application has been dismissed, the suit shall be dismissed without
notice.

Where on the day fixed for filing a defense or to appear and answer it is
found that the summons had not been served upon the defendant
because the plaintiff had not paid court fees or charges for services, the
court may dismiss the suit-O.9 r 16 CPR

Where after summons has been issued to a defendant and returned to

the court un served and the plaintiff fails to apply for issue of a fresh
summons for a period of 1yr from the date of return, and to satisfy court
that he or she used his endavours to discover the residence of the
defendant who has not been served, or that the defendant is avoiding
service of process, the court may dismiss the suit. The plaintiff may bring
a fresh suit subject to the law of limitation-O.9 r 19 CPR.

Where the defendant appears and the plaintiff does not appear when the
suit is called for hearing, the court shall dismiss the suit unless the
defendant admits the claim or part thereof, in which case court shall
pass judgment and decree against the defendant upon such admission-
O.9 r 22 CPR.

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Where a suit is wholly or partly dismissed under O.9 r 22 the plaintiff is

precluded from bringing a fresh suit in respect of the same cause of
action, but he or she may apply to set aside the dismissal and proceed
with the hearing of the suit if satisfies court that there was sufficient
cause for nonappearance when the suit was called for hearing. The
opposite party should be served with the notice-O.9 r 23 CPR.

If a plaintiff does not within 8 weeks from delivery of the defense or

within 10 weeks from the delivery of counter claim, set down a suit for
hearing, then the defendant may either set down the suit for hearing
then the defendant may either set down the suit for hearing or apply to
court to dismiss the suit for want of prosecution-O.17 r 5 CPR. In the
case of Nantaba vs. Musoke [1988-1990] HCB 98 was an application
seeking an order that the high court dismisses the suit under O.15 r 5
(now O.17 r 5) for want of prosecution. Reliance was put on an affidavit
sworn by the applicant / defendant to the effect that since the case was
filed, the plaintiff had not made efforts to have the suit fixed. It was also
argued that the suit pendency negatively affected the defendant’s right
and the suit property. Court found that since the applicant/ defendant
filed a defense he had not taken every step to see that the suit was fixed
for hearing but no step had been taken by the plaintiff and 8 weeks had
elapsed. The suit was dismissed for want of prosecution.

In the case of Ayub Sulaiman vs. Salim Kabambalo SCCA No.

32/1995, counsel for the appellant had applied for an adjournment
complaining that the suit had been fixed exported, not cause listed and
the appellant who was a plaintiff was in Hong Kong. The learned trial
judge dismissed the suit for want of prosecution under O.15 r 5 CPR. An
application for review of the dismissed suit was also dismissed. Court
held that the learned trial judge considered 8 yrs the suit had been

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dragging in due to the adjournments granted at the instance of the

appellant. Clearly that the appellant had lost interest in the case.

That the main issue to determine was whether the learned trial judge
erred in law or fact when he dismissed the appellant’s application for
review of a ruling which dismissed the suit. That it appears that section
101 CPA would have been more relevant because it provides for inherent
powers of court to make such orders as may be necessary for the ends of
justice or prevent an abuse of court process. That as it was observed by
the Supreme Court in SCCA No. 17/1993 National Union of Clerical
Commercial Professional and Techinical Employee vs. National Insurance
Corporation, it is now settled that the existence of a specific procedure
provision or remedy cannot operate to restrict or exclude the court’s
inherent jurisdiction under s.101 CPA. That the dismissal of both the
application for an adjournment and the appellant’s suit was based on
valid grounds. If the ground of the application for review was to challenge
the effectiveness of service, it should have been instituted under O.9 r 20
CPR which empowers court to set dismissal order if the applicant
satisfies court that there was sufficient cause for nonappearance when
the suit was called for hearing.

In any case where no step is taken for a period of 2 yrs by either party
with a view to proceeding with the suit, court may dismiss the suit. The
plaintiff may bring a fresh suit subject to the law of limitation O.17 r 6.In
the case of Njiramakwene vs. Bitariho [1973] HCB 58, Court held that
O.15 r 6 (now O.17 r 6) enables court on its own initiative without notice
to either party to dismiss a suit where there has been an inordinate delay
for 2 yrs. Court also observed that in the present case the action seems
to have been allowed to go to sleep for a little over 3yrs. It is impossible
to have a fresh trial after a long time has lapsed. It is the duty of the

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plaintiff to bring his or her suit to early trial. There was both culpable
and inexcusable activity on part of the plaintiff which could not be
countenanced and O.15 r 6 provides court with machinery to
disencumber itself of caseloads in which the parties appear to have lost
interest.

In the case of Victory Construction vs. Duggal (1962) E.A 697 it was
held that the plaintiff’s slumber for so long was clear evidence for lack of
interest in the prosecution of the suit and a reason for dismissal for want
of prosecution

In Nilani vs. Patel (1969) EA 340 the Plaintiff delayed for 2 yrs to set
down the suit for hearing. It was held that there had been an inordinate
delay by the plaintiff which was inexcusable and the suit was dismissed.

Reinstatement of Dismissed Suit-O.9 r 19 & 20

Where the defendant appears and the Plaintiff does not appear when the
suit is called for hearing, Court may dismiss the suit under O.9 r 22
CPR. Where the suit is dismissed under O.9 r 22 CPR, the plaintiff may
apply for an order to set the dismissal aside and reinstated suit for
hearing if he satisfies court that there was sufficient cause for his
nonappearance when the suit was called for hearing. The application
should be served on the opposite party-O.9 r 23 CPR.

In the case of Sherali Bandali Jaffer vs. Seggane [1972] ULR 108, it
was held that before a suit can be dismissed under O. 9 19 (O.9 r 22) the
defendant has to prove that the hearing notice has been properly served
on the plaintiff unless the hearing date was fixed by the plaintiff.

In the case of Fredrick Ssekyana Sebugulu vs. Daniel Katunda

[1979] HCB 46, it was held that an order for dismissal could be made

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under O.9 r 19 (now O.9 r 22) only if the plaintiff was not represented on
the hearing date. In as much as the plaintiff counsel was present and
appeared on the plaintiff’s behalf when the suit was dismissed, the
plaintiff was then pursuant to O.3 r 1 legally present before court on that
day. Accordingly the order of dismissal could not have been made under
O.19 r 19 CPR.

In the case of Norah Nakiridde vs. Hotel International Ltd [1987]

HCB 85, it was held that considering whether there was sufficient cause
why counsel for the applicant did not appear in court on the date the
application was dismissed, the test to be applied in cases of that nature
was whether under the circumstances a party applying honestly
intended to be present at the hearing and did his or her best to attend. It
is also important for the litigant to show diligence in the matter. In the
instant case it was clear from the affidavits of the applicant that counsel
did his best to appear in court but was prevented by illness. The son of
the applicant did in fact came to court and that showed diligence on part
of the applicant.

In the case of National Insurance Corporation vs. Mugenyi & Co.

Advocates [1987] HCB 28, Court applied Girado vs. Alam & Sons (U) Ltd
1971 EA 448‘where no sufficient cause was shown but court set aside a
dismissal of the suit by invoking the inherent jurisdiction of court and held
that it is open to the court to invoke its inherent powers under S. 98 CPA to
set aside a dismissal and reinstate a dismissed suit for hearing because
the provisions of s.98 CPA have a wider application than the provisions of
O.9 r 20 CPR which merely referred to sufficient cause ‘

In the case of A.P Bhimji Ltd vs. Micheal Opkwo H.CMA No. 423/2011
the application before court was to set aside the order dismissing the suit
and direction that it is reinstated for its hearing and determination. Held

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that under O.9 r 17 Court could have proceeded to dismiss the suit
instead evoked the provisions of O.17 r 4 to dismiss the suit. That court
has to draw a distinction between a dismissal made under O.9 r 17 and a
dismissal made under O1 r 4. There is no similar provision for
reinstatement of a suit dismissed under O.17 r 4 CPR.

In the case of Busingye & Anor vs. Gianluigi & Anor HCMA No.
203/2013 Justice Hellen Obura held that the issue before court is
whether there is sufficient cause that warrants setting aside dismissal
and reinstating the case. That O.9 r 23 empowers court to make an order
setting the dismissal of the suit on such terms as to costs or otherwise
the court thinks fit. However the applicant must first satisfy the court
that there was sufficient cause for nonappearance when the suit was
called for hearing. That the Supreme Court in Nicholas Roussos vs.
Gulam Hussein Habib & Anor C.A No.9/1993 held that some of the
grounds or circumstances which may amount to sufficient cause include
mistake by an advocate though negligent, ignorance of procedure by an
unrepresented defendant and illness by a party. That similarly in the
case of Ms. United office equipment & Stationery Supply E.A vs. Uganda
Bookshop Ltd [1987] HCB 90 Court held that failure by counsel for the
plaintiff to appear was due to negligence of counsel, although sufficient
cause may be absurd as counsel’s negligence. That in National Insurance
Corporation vs. Mugenyi & Co. Advocates (1987) HCB 28, the court of
Appeal held that, ‘The main test for reinstatement of a suit was whether
the applicant honestly intended to attend the hearing and did his best to
do so. Two other tests were namely the nature of the case and whether
there was a prima facie defense to that case….’’. That in the instant case
the applicant’s explanation for their failure to appear in court is that the
clerk to their lawyer failed to retrieve copies of the notice of motion and
so they were unaware of the hearing date. That both the applicant and

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their lawyer were not aware of the fixture. Since counsel for the
applicants conceded that they were negligent in handling that
application, they shall pay the taxed costs of this application to the
respondent.

The four main tests for reinstatement of a suit are;

i) Whether the applicant honestly

ii) Intended to attend the hearing and did his best to do so
The other two sets are;
iii) The nature of the case and
iv) Whether there was a primafacie defense to that case.

Withdrawal and Adjustment of Suit-O.25 CPR

This is where the parties to a suit or any of them compromise a suit or

decide not to proceed with the suit especially if the subject matter is not
existing or has been destroyed or in cases for trespass, a trespasser has
left the premises hence an order for eviction or vacant possession
becomes useless or where the claim is satisfied or performed wholly or in
part or where the party feels that he or she is no longer interested in the
proceedings.

The plaintiff may at any time before delivery of the defendant’s defense or
after receipt thereof before taking any other steps in the proceedings in
the suit by notice in writing wholly discontinue his suit against all or any
of the defendants or withdraw any part or parts of his or her alleged
cause of complaint. He/she shall pay the defendant’s cost of the suit but
such discontinuance / withdraw shall not be a defence to any
subsequent action-O.25 r 1 (1) CPR.

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In all other instances especially where hearing has started the plaintiff
cant withdraw or discontinue the suit without leave of court and subject
to such terms as to the costs and any other suit as the court may impose
upon application by the plaintiff-O.25 r 1 (2) CPR.

Likewise a defendant may with leave of court withdraw or strike out the
whole or any party of his/her alleged grounds of defense or counterclaim
subject to such terms as to costs and any other suit as the court may
impose upon application by the defendant-O.25 r 1(3) CPR

A fresh suit subsequently instituted in respect of the same cause of

action is subject to the terms imposed by the court and the law of
limitation and may be stayed until the costs occasioned by the matter
withdrawn have been paid-O.25 r 3,4,5 CPR. This applies to situations
where a party withdraws unilaterally without a consent of the other
parties to the suit or without leave or permission of court.

Although O25 r 7 requires application for withdraw to be by chamber

summons. Its however sufficient for a party to write to the registrar
withdrawing the suit with a copy to the opposite party or his/her
advocate except in cases were leave of court to withdraw is necessary as
held in Kalema Rhoda vs. Departed Asian Custodian Board HCCS
No. 874/1990.

Unilateral withdraw also arise where the defendant hasn’t filed a defense
or where a defense has been filed but no further steps have been taken
in the suit i.e where the trial process/hearing hasn’t started in such
cases costs will not be awarded. The plaintiff writes to the registrar to
notify him/her of the withdrawal.

Where its proved to the satisfaction of court that a suit has been
adjusted wholly in part by any lawful agreement or compromise or where

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the defendant satisfies the plaintiff in respect of the suit, court may on
application of or satisfaction to be recorded and pass a decree in
accordance therewith sofar as it relates to the suit-O.25 r 6 CPR.

In the case of Ezekiel Mulondo vs. Fenekansi Semakula (1982) HCB

27 it was held that;

i) Under O.22 r 1 (1) (now 25) CPR a plaintiff may discontinue

his/her suit at any time before the defense is filed or even after the
defense is delivered but no other steps have been taken in the suit.
To that extent no leave of court is required. This is a right both in
law and common sense because the plaintiff may be forced due to
the lack of evidence or some other good reason to unilaterally
abandon his/her suit for the time being or for good
ii) Although under O.22 r 7 CPR an application under O.22 r 1 must
be by chamber summons, it’s not necessary that discontinuance of
the suit must be done with the leave of court by chamber
summons, its only in cases where leave of court, withdraw is
necessary that such leave must be sought by way of chamber
summons. In the instant case the plaintiff’s written notice
therefore effectively and properly withdrew his suit.

In the case of Phillip Masanga vs. Buganda Saw Mills Ltd (1973) 1
ULR 131, the plaintiff sued his employer, after issues had been framed
and the plaintiff had given evidence his counsel applied for leave to
withdraw the suit under O.22 r 1(2) CPR. Due to the unsatisfactory and
confused evidence which the plaintiff gave the application was resisted
by the defendant counsel for reason that the plaintiff counsel knew that
he would not possibly succeed on the evidence and submitted that there
was no merit in the application. Court observed that;

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i) O22 r 1 (2) CPR conferred a discretion on the court to order a suit

to be withdrawn or discontinued upon such terms as to costs and
any other case and otherwise as may be just but the discretion
given should be exercised within certain limitations and so as not
to be taken away from the defendant any advantage to which
he/she was fairly and reasonably entitled.
ii) A distinction should be drawn between cases where no evidence
was adduced and cases where evidence was adduced. In the former
O.22 r 1 (1) would apply in the later the main consideration is
whether the opposite party would be prejudiced if the leave sought
was granted. The object of O.22 r 1(2) is not to enable the plaintiff
after he or she has failed to conduct his suit with proper care and
diligence and after his witnesses have failed to support his case to
obtain an opportunity of commencing the trial afresh in order to
avoid the result of his previous bad conduct of the case so as to
prejudice the opposite party
iii) The application was allowed and was ordered that the suit be
discontinued under O22 r 1(2) CPR upon terms that the plaintiff
would pay costs incurred by the defendant and no other action
would be brought by the plaintiff for the same subject matter.

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Topic VI

PRE-TRIAL AND JUDGEMENT REMEDIES

The parties file a suit and exchange pleadings and then the trial process
continues and the parties are obliged to induce all their claims and time
is of essence. The Civil Procedure Act and the Civil Procedure Rules
hence provided remedies or a relief like interlocutory injunction, interim
orders because by the time the judgment is given the judgment is not a
waste.

1) Injunctions

These are orders of court restraining parties from doing particular things.
They may be permanent, temporary, interim, marevea injunction but all
these are orders of court.

i) Interlocutory / Temporary Injunction

A temporary injunction is a form of an interlocutory remedy the effect of

which is directing a party to the proceedings to do or restraining from
doing a particular act until the final determination of the matter in
controversy. It is granted in cases where monetary compensation would
afford an inadequate remedy to an injured party.

Applicable law

In Uganda the court’s jurisdiction to grant injunction is derived from

section 38 of the Judicature Act specifically provides that the High Court
shall have powers to grant an injunction to restrain any person from

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doing any act as may be specified by Court. Magistrates’ courts too have
powers to grant injunctions by virtue of their civil jurisdiction under
section 98 CPA.

In order to prevent the ends of justice from being defeated, the court if it
so prescribed grant a temporary injunction and in case of disobedience
commit the person guilty of it to prison and order that his or her property
be attached and sold-S. 64(e)

The specific powers of court and the circumstances under which a

temporary injunction may be granted or issued are outlined in Order 41
CPR. O. 41 r 1 provides that where in any suit it is proved by affidavit or
otherwise;

a) That any property in dispute in a suit is in danger of being wasted,

damaged or alienated by any party to the suit or wrongfully sold in
execution of a decree or
b) That the defendant threatens or intends to remove or dispose of his
property with the view to defraud his creditors, the court may by
order grant a temporary injunction to retrain such acts or make
such other order for the purposes of staying or preventing the
wasting, damaging, alienation, sale, removal or disposition of the
property as the court thinks fit until the disposal of the suit or
until further orders.

O.41 r 2 deals with injunction to restrain breach of contract or other

injury.

In the case of Samuel Mayanja vs. Uganda Revenue Authority HCMA

17/2005, the applicant an aggrieved tax payer approached court not
under its appellate jurisdiction but under its original jurisdiction as there
is no appeal, but under its original jurisdiction under section 38(1)

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Judicature Act seeking a temporary injunction to retrain the respondent

from enforcement of agency notice issued.

Justice Egonda Ntende held that section 14 of the Judicature Act

recognizes the unlimited original jurisdiction of the High court which is
conferred by the constitution, and further provides for the law applicable
in the exercise of such jurisdiction by the High court. Section 38 (1) J.A
deals with the grant of injunctions. That the high court shall have
powers to grant injunction to restrain any person from doing any act as
may be specified by the High Court. That clearly the high court is
granted the powers in appropriate cases to grant injunction as a remedy.
That the provisions of O.41 r 1&2 CPR deals with applications for a
temporary injunction as an interlocutory matter in a pending proceeding
before court. That here there is no pending proceeding before this court.

In the case of British American Tobacco Uganda Limited vs. Bamudu

Tobacco Company Ltd HCMA 599/2005, the applicant also a plaintiff
in the head suit sought a temporary injunction to retrain the respondent
from buying tobacco from farmers in northern Uganda during
2005/2006 tobacco buying season and from interfering with the
plaintiff’s sponsorship contract with tobacco farmers in the same region.

Justice Egonda Ntende held that O.37 r 1 CPR (now O.41 r 1) allows for
applications where it is shown that any property in dispute which is the
subject matter of a suit is in danger of being wasted, damaged, alienated
or wrongfully sold in execution. Firstly it must be shown that the head
suit is one the subject matter of which the property in dispute. Secondly
that the property must be in danger of wastage, damage, alienation of
sale as the case may be by a party to the suit. These two conditions must
be satisfied before considering any of the grounds. That the subject
matter in the instant case is not about property as intended under O.37 r

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1 (a) CPR. The suit is not concerned with probable wastage, damage or
alienation of any property. That the suit is about interference with the
contract, a matter governed by O.37 r 2 (1) CPR. On that ground alone of
being brought under a wrong law, the application id dismissed

It should be noted that before a party applies for a temporary injunction,

there must be a pending suit or main suit and the application is by a
miscellaneous application which is miscellaneous to the main suit.

Nature and essence of a temporary injunction

The purpose of a temporary injunction is to maintain the status quo

until the final determination of issues in controversy. In the Case of Jan
Mohammed vs. KasamaliVirjiMadhani (1953) 20 EACA 8, the lower
court granted exparte injunction the effect of which was restrain a party
from carrying on the respondent’s business or occupying the respondent
premises or using the furniture and the chattels therein. On appeal, Sir
Newbold held that,

‘’I have always understood that the whole purpose of an injunction is that
the matters ought to be preserved in the status quo until the question to be
investigated in the suit can be disposed off’’.

In this case the question was whether the appellant or respondent were
entitled to the occupation of the suit premises and carry on the hotel
premises. The appellant was admittedly in possession but the injunction
didn’t purport to maintain the status quo but actually ordered him to
vacate the premises and cease doing business.

In the case of Francis Kayanja vs. Diamond Trust Bank (U) Ltd HCMA
No. 300/2008Lameck N. Mukasa held the law is that the granting of a
temporary injunction is a judicial discretion which court exercises

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judiciously upon considering the conditions below. Fist whether the

applicant has shown a prema facie case with probability of success.
Secondly that the applicant would suffer irreparable injury which would
not be adequately compensated by an award of damages. Thirdly, if the
court is in doubt on any of the above two, it will decide the application on
the balance of convenience. That the prime purpose of a temporary
injunction is to preserve the status quo pending the disposal of the main
suit. Therefore under O.41 r 1 CPR it is therefore first and foremost to
identify the status quo.

Pendency of a suit

For the court to entertain an application for a temporary injunction,

there must be a pending suit. Under that suit the applicant will claim to
court under miscellaneous application in the suit to apply for a
temporary injunction. In the case of Samuel Mayanja vs. Uganda
Revenue Authority HCMA 17/2005, Justice Egonda Ntende held that
the provisions of O.41 r 1&2 CPR deals with applications for a temporary
injunction as an interlocutory matter in a pending proceeding before
court. That here there is no pending proceeding before this court.

Discretion of Court

The granting of a temporary injunction is at the discretion of court

exercised judicially.

In the case of Alley Route Ltd vs. Uganda Development Bank Ltd
HCMA No. 6344/2006LameckMukasaheld that the law relating to
granting temporary injunction is that of an interim injunction is the
exercise of judicial discretion. Court must exercise that discretion
judicially. See Sargent vs. Patel [1949] 16 EACA 63.

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Maintenance of the Status Quo.

An application for a temporary injunction must satisfy court that if

granted will maintain the status quo till the final determination of the
issues in controversy

In the case of Francis Kayanja vs. Diamond Trust Bank (U) Ltd HCMA
No. 300/2008Lameck N. Mukasa held that the prime purpose of a
temporary injunction is to preserve the status quo pending the disposal
of the main suit. Therefore under O.41 r 1 CPR it is therefore first and
foremost to identify the status quo.

It should be noted that an injunction of this nature is unique. The

court’s action can be justified if the appellant had admitted that he was a
trespasser upon the premises.

Pre-Conditions / Considerations for Grant of a Temporary Injunction.

The principles that the courts consider in granting a temporary

injunction have been articulated in a number of authorities.

In the case ofKiyimba Kagwa vs. Katende [1985] HCB 43, the
applicant was the registered owner of the suit land which was disputed
between him and the defendant. The defendant had brought a tractor
and began cultivating the land. The plaintiff applied for a temporary
injunction and Odoki J held that the conditions for grant of a temporary
injunction are;

1) The applicant must show a premafacie case with a probability of

success. This explains why the applicant has to begin by filing a
suit.

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2) Such injunction will not normally be granted unless the applicant

might otherwise suffer irreparable damages which would not be
adequately compensated by an award of damages
3) If the court is in doubt, it may grant an application on the balance
of convenience.

In the case of Francis Kayanja vs. Diamond Trust Bank (U) Ltd
HCMA No. 300/2008 Lameck N. Mukasa held the law is that the
granting of a temporary injunction is a judicial discretion which
court exercises judiciously upon considering the conditions below.
Fist whether the applicant has shown a prema facie case with
probability of success. Secondly that the applicant would suffer
irreparable injury which would not be adequately compensated by
an award of damages. Thirdly, if the court is in doubt on any of the
above two, it will decide the application on the balance of
convenience.
In the case of Alley Route Ltd vs. Uganda Development Bank
Ltd HCMA No. 6344/2006 LameckMukasa held that the
conditions for the court to consider whether or not to grant a
temporary injunction are that first an applicant must show that he
has a prema facie case with probability of success. Secondly, an
interlocutory injunction will not be granted unless the applicant
might otherwise suffer irreparable injury, which would not be
adequately compensated by an award of damages. Thirdly if the
court is in doubt it will decide the application on balance of
convenience.

Elements

1. Existence of a premafacie case

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The purpose of there being a premafacie case is that the respondent

should not unnecessarily be prevented from exercising his/her right
unless the applicant has a good case against the respondent. It is a
pre-requisite that the applicant should have instituted the suit
against the respondent before applying for an injunction. In the case
of Re Sarah Nalwanga (1974) HCB 136, after considering the fact
that the purpose of granting a temporary injunction is to maintain the
status quo, court held that the applicant must disclose that he or she
has a premafacie case against the respondent. In Kiyimba Kagwa vs.
Katende Court observed that a premafacie case does not necessarily
mean a good case but means a case with probability of success.In
answering the question whether there was a primafcie case, court
noted that there was serious question of ownership of land and that
the applicant had proved that he had a premafcie case with
probability of success.

The principle for the applicant to show a prema facie case with a
strong probability of success has been criticized in the case of
American Cyanamid Co. Ltd vs. Ethicon [1975] 1 ALL E.R 504
where Lord Diplock at page 510 held that there is no requirement
for the plaintiff to establish a prima facie case. All the plaintiff
needs to show by his action is that there are serious questions to
be tried and that the action is not frivoulous or vexatious. The task
of court is to consider whether the applicant’s application discloses
an arguable case which merits trial.
2. Irreparable Injury / Damage.
Whether the applicant is likely to suffer irreparable injury if the
injunction is not granted depends on the facts of each case. In the
case of NITCO Ltd vs. Hope Nyakairu [1992-93] HCB 135, Court
held that on the facts of the case the applicant hadn’t proved that

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he would suffer irreparable injury if the injunction wasn’t granted.

That the grant of the temporary injunction would instead inflict
irreparable injury on the defendant as the plot of land would be
removed from him if he did not develop it within 5yrs. In case the
defendant proceeded with the building and eventually at the end of
the trial the plot turns out to be of the plaintiff, the defendant
would be ordered to demolish the building, remove the debris and
compensate the plaintiff for any damage to the plot. If on the other
hand the plot was declared for the defendant, the plaintiff would
suffer nothing except costs.
In KiyimbaKagwa vs. Katende Court defined irreparable damage or
injury to mean that there must not be physical injury but the
injury must be substantial or a material one i.e one that can’t be
adequately compensated by damages.
In the case of Babumba vs. Bunju [1992] III KALR 120, court
held that in view of the scarcity of accommodation in Kampala if
the applicants were evicted they would suffer irreparable injury
since alternative accommodation would not be easy to get.
3. Balance of Convenience
The third test is only applied where the court is in doubt on the
first two principles and that is that of balance of convenience. This
requires that the court weighs the convenience of complying with
the injunction on part of the respondent against the damage that
the applicant would suffer if the injunction isn’t granted. If the
damage outweighs the inconvenience then the applicant would be
granted the injunction. In the case of UCB vs. General parts, Court
held that the applicant was a small company compared to the
respondent and as such the applicant was likely to be more
inconvenienced if its property was sold.

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In KiyimbaKagwa vs. Katende the balance of convenience was in

favour of granting the relief to the plaintiff who was in possession
and was likely to suffer more damages if the land in question was
interfered with.

Injunctions against Government

Section 14 of the Government Proceedings Act Cap 77 gives the

court powers to grant all such remedies against government as
may be granted against private individuals in civil proceedings.
However the section bars the court from giving any such relief
against the government if the effect is to grant an injunction or to
order specific performance.

Similarly according to section 14(2) an injunction can’t be granted

against a government official if the effect is that the relief is
granted against government.
In the case of Attorney General vs. Silvers Springs Hotel Ltd
(1992) II KALR 42, Court observed that the purpose (of now
section 14) of is that government machinery shouldn’t be brought
to halt and the government shouldn’t be subject to
embarrassment. That it will be against public policy if the
government business was brought to halt.

In the case of Christopher Sebuliba vs. Attorney General the

plaintiff sued the government to recover land and for an eviction
order in the trial court. The eviction order was denied as being
contrary to section 14 of the Government Proceedings Act. On
appeal, Justice Platt held that whereas the government is entitled
to protection, such protection should be scrutinized carefully.

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There situations where the government may not insist on such

protection or may by implication wave its immunity. In this case
the government conduct was such that it had waved its immunity.
The government had indicated to the plaintiff that it wouldn’t
vacate the premises without a court order. However court noted
that it would be unfair to the plaintiff if the same government
claimed immunity when faced with the court order.
The current position of the law as regards injunctions against
government is in the Court of Appeal decision in the case of
Attorney General vs. Osotraco Ltd C.A No.32/2002. An appeal
arising from the judgment and orders of the High Court (Egonda
Ntende) ruled that s.15 (1)(b) of the Government Proceedings Act
not to be inconformity with the 1995 constitution and made
ancillary order of eviction against the appellant and its agents with
costs. Court of Appeal held that Art.273 requires existing laws to
be construed with such modification, adoption, qualification and
exceptions as may be necessary to bring into conformity with the
constitution. That Art. 273 only empowers all courts to modify the
existing unjust laws without necessarily having to refer all such
cases to the constitutional court. This provision enables the court
to expedite justice by construing unjust and archaic laws and
bringing them in conformity with the constitution, so that they do
not exist and are void. That the learned judge in his judgment
reviewed a number of foreign decisions whose primary object was
‘to do away with the archaic state protection and to place the sate or
the government at par with any other juristic legal entity in line with
modern social thinking of progressive societies.’ That this is the
object of Art. 273 and cannot be said that he acted outside the
ambit of Art. 273. That the Silver Springs case predates the 1995

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constitution by about 6 years, times have changed, the decision

cannot therefore be said to be in line with the spirit of the new
constitution especially Art. 126(1) which provides that judicial
powers is derived from the people and shall be exercised by the
courts established under the constitution in the name of the
people and in conformity with the law and with the values, norms
and aspirations of the people. That since the 1995 constitution, the
rights, powers and immunities of the state are not immutable
anymore. That the judge’s orders of eviction were confirmed.
O41 r 3 requires service of application to the opposite party. i.e
You cant get an exparte injunction. 041 r 9 Application is by
chamber summons supported by affidavit. O.6 r 1 Summary of
evidence, witnesses

Interim Orders

In the case of Souna Cosmetics Ltd vs. The Commissioner

Customs URA & The Commissioner General URA Misc.
Application No. 424 of 2011in an application for grant of interim
orders, the applicant has to prove the following;

1) That there is a bonafide arguable case for consideration on the

merit before court
2) That a substantive application is pending which will be rendered
nugatory if the application is not granted
3) There is eminent / serious threat before hearing the pending
substantive application

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That an application for an interim injunction is not an application on

the merits but meant to preserve the rights of appeal or right of
hearing on the merits which may be curtailed if the status quo is
changed. That the law concerning an interim stay of execution or
injunction is that the court preserves the right of the applicant/
appellant to be heard on the merits. This is very limited jurisdiction
which does not deal with the merits of the suit.

2. SECURITY FOR COSTS AND FURTHER SECURITY FOR COSTS

O.26 CPR, S. 284 Companies Act, 2012.

Principles governing security for costs.

The court may if it deems fit order a plaintiff in any suit to give security
for the payment of all costs incurred by any defendant-O26 r 1 CPR.
Application for security for costs under O26 r 1 should be by chamber
summons-O26 r 3 CPR.

In E. African Holdings Ltd vs. Madhvani HCCS No.1181/1988 it was

held that the language of O.26 r1 is extremely plain, it talks about costs
incurred, it talks about the past not the future, the court would not
make an order for costs likely to be incurred by any defendant in the
future.

Sec 284 of the Companies Act, 2012 provides that where a limited
liability company is plaintiff in any suit or other legal proceeding, any
judge having jurisdiction in the matter may, if it appears by credible
testimony that there is reason to believe that the company will be unable
to pay the costs of the defendant if successful in his or her defense,

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require sufficient security to be given for those costs and may stay all
proceedings until the security is given.

It appears it is possible to apply for security for costs in respect of future

costs likely to be incurred by the defendant under section 284 of the
Companies Act, 2012 unlike O.26 r 1 CPR where the defendant can only
apply for security for past costs already incurred.

In the case of Unidrom Ltd vs. Kaweesi & Co.Ltd H.C.C.S. No. 878/90
it was held that an order for security for costs would issue because the
plaintiff company was a foreign company incorporated in the United
Kingdom without property or investments in Uganda. The security was
supposed to be by bond to the satisfaction of the registrar.

In the case of John Mukasa & Litho Pack Ltd vs. M/s. Srijaya Ltd
HCMA No. 215/2004 Justice Kiryabwire held that the purpose of
security for costs as provided under O.23 r 1 CPR is to defend a suit
instituted by a plaintiff who cannot pay his costs. That the grant of an
order for security for costs is one of judicial discretion. The registrar has
powers under expanded jurisdiction granted to registrar by the Hon. The
Chief Justice under practice Direction No. 1/2002 entitled judicial
powers of the registrar.

That from the authorities it would appear that the leading case in
Uganda on the test to be considered in deciding whether or not to grant
an order for security for costs is that Ssekandi Ag J (as he was then) in
Anthony Namboro vs. Henry Kaaala [1975] HCB 315 and these are;

a) Whether the applicant is being put to undue expense by defending

a frivolous and vexatious suit
b) That he has a good defense to the suit
c) That he is likely to succeed

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These are the first tier of tests that have to be met. It is only thereafter
that a second tier test can be considered namely;

i) Inability to pay
ii) Poverty but that mere poverty is not by itself a ground for
ordering security for costs, if this were so, poor litigants would
be deterred from enforcing their legitimate rights through the
legal process
iii) Whether the respondent has a triable cause of action against
the applicant and there is a likelihood of him succeeding.

That the principles to guide court in determining application for security

for costs, were reiterated in G.M Combined (U) Ltd vs. A.K. Detergents (U)
Ltd C.A No. 34/95 as follows;-

1. The major consideration is the likelihood of success of the

plaintiff’s case, put differently whether the plaintiff has a
reasonably good prospect of success, or whether the plaintiff claim
is bonafide and not a sham.
2. If there is a strong prima facie presumption that the defendant will
fail in his defense to the action the court may refuse him security
for costs of a defendant who has no defense to the claim
3. Whether there is admission by the defendant on the pleadings or
elsewhere that money is due
4. If the defendant admits so much of the claim as would be equal to
the amount for which security would have been ordered the court
may refuse him security for he can secure himself by paying the
admitted amount into court
5. Whether the defendant admits his liability the plaintiff will not be
ordered to give security for costs

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6. Where there is a substantial payment into court or an open offer of

or substantial amount; an order for security for costs will not be
made.

That a defendant may in certain cases ask for an order to compel the
plaintiff to give security for costs of the action, for example where the
plaintiff is ordinarily resident abroad, and has no substantial property,
real or personal property within the jurisdiction of court. It is important
to note that at this stage a trial will not have taken place so as an
assessment of the merits of the application can only be made based on
the pleadings, the affidavits for and against the application and other
relevant materials brought before court.

That mere poverty is not itself a ground for security for costs. This point
is reiterated in Karim Elah vs. Ahmed Mohammed (1929-30) ULR that
inability of the plaintiff to pay his debts is not sufficient reason to order
security for costs.

In the case of Deepak K. Shah & 3 Ors vs. Mananura & 2 Ors HCMA
No. 361/2001, the plaintiffs in the suit were ordinarily residents in
Nairobi, Kenya outside the jurisdiction of court. Defendants are residents
of Uganda who applied to court for an order requiring the plaintiffs pay
security for costs under O.23 (now 26) CPR. Justice Ogoola held that the
power of court to order a plaintiff to pay security for costs is entirely
discretionary matter of court. There is no longer any inflexible rule or
practice to the effect that the plaintiff resident abroad, will by that reason
alone, be ordered to give security for costs. Rather court in exercising its
powers under O.23 CPR takes into account all the circumstances of the
particular case. That as it turns out the plaintiffs are residents of
Nairobi, Kenya a partner State (along with Uganda and Tanzania) and
this fact of the E. African community residents beg for a fresh re

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evaluation of our judicial thinking in relation to such matters as the

implementation of O.23 CPR. (i.e. need to order community residents to
pay costs). That the EAC Treaty establishes a customs Union, a common
market and a monetary union. In particular the treaty makes express
provisions for the laws of the partner state including standardization of
the judgments of courts within the community, establishment of
common bar (i.e. cross boarder legal practice) in the partner states. In
this regard court notes that there is already existence of an East African
Judges and Magistrates Association as well as the E.A African court of
justice. Under the treaty judgments of the E. African court of justice are
to be enforced through the national courts of the partner states. There
can no longer be an automatic and inflexible presumption for court to
order payment of security for costs with regard to plaintiff who is a
resident of the E. African community. Therefore the plaintiff residence as
a factor in consideration whether or not to order payment of security for
costs is disregarded. In exercising the discretion as to whether or not to
order security for costs, courts must consider all other circumstances of
the case. In this application, plaintiffs have averred that they own certain
property in Kenya the existence of which have not been challenged at all.

That in the instant application, it is held that plaintiff residence in Kenya

is of no consequence to the determination of the issues at hand (i.e.
payment of security for costs) since such residence is residence within
the East African Community.

That alternatively, the position of community residence is analogous to a

plaintiff who lives within the court’s jurisdiction, but who has no
property at all (i.e. who is poor, insolvent or even bankrupt). In such a
case, the law is trite that the insolvency or poverty of a plaintiff is no
ground for requiring him to give security for costs. That the order applied

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should not become a weapon of oppression against the plaintiff’s action,

and plaintiff’s case has a high likelihood of success.

In the case of Development Finance Corporation of Uganda Ltd &

Ors vs. N.G General Limited HCMA No. 152/1999 applicant sought for
orders for payment of costs on grounds that the respondent was under
receivership and was indebted to other entities. It was held that this was
not a case in which court should order security for costs. There was
evidence to show that the applicants were in possession of property
worth one billion shillings, which was sufficient to take care of the costs
likely to be incurred.

Failure to deposit Security for Costs

If the security for costs is not furnished within the time fixed, a court
shall dismiss a suit unless it is withdrawn by the plaintiff-O.26 r 2 (1)
CPR. Where a suit is dismissed, the plaintiff may apply to set aside the
dismissal and reinstate the suit for hearing if it is proved to the
satisfaction of court that he/she was prevented by any sufficient cause
from furnishing the security within the time allowed-O.26 r 2 (2) CPR.

In the case of Bank Arabe Espanol vs. Bank of Uganda SCCAnO.

8/1999 the second appeal arose from the decision of the Court of appeal
overturning the high court’s decision and orders reinstating the
appellants suit against the respondent bank of Uganda. The suit had
been dismissed on ground that the appellant failed to deposit security for
costs within the period ordered by the High Court.

Held that the evidence showed the appellant deposited a bank guarantee
due to the mistake belief that the guarantee would suffice as security for
costs by the high court. That taking into account the bureaucratic delays
in obtaining payment of money from the appellant at its offices in Spain

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and the difficulty in transferring money internationally, the appellant

would have required more time to comply with the high court order for a
cushy deposit.

That under O. 23 r 2 (2) CPR order of dismissal of a case can be set aside
for sufficient cause. The circumstances of the case showed that the
appellant was prevented by sufficient cause from depositing the money
for security of costs within the time allowed because it was under a
mistake belief that the guarantee would suffice as security for costs

That while the court’s power to dismiss a suit under O.23 r (1) is
automatic upon the plaintiff failure to comply with the order for security
for costs, the court’s power to reinstate such a dismissed suit under rule
(2) is discretionary. The Supreme Court found that the judge properly
exercised her discretion by setting aside the dismissal of the appellant’s
suit.

Security for Costs and Further Security for costs in the Court of
Appeal.

Under rule 105 of the Court of Appeal Rules 1996 appellants to the court
of Appeal of a civil appeal are required to lodge Ushs. 200,000/- in court
as security for costs. Court may on the application by the respondents to
a cross appeal direct the cross appellant to lodge Ushs. 200,000 as
security for costs. Court may at any time if it thinks fit direct that further
security for costs be given.

In the case of Transroad Ltd vs. Bank of Uganda SCCA No. 43/95,
Order JSC held that the rule 104(3) of the Court of Appeal Rules 1996
permit court to move an order for security for costs ‘at anytime’’, if it
thinks fit. But the law is now well settled that such order should not
result in prejudice to the respondent. An inordinate delay may cause

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such a prejudice and the onus is on the applicant to show that a delay in
applying for security for costs has not prejudiced the party being asked
to provide further security for costs. In the instant case there was delay
for over 3 months and the application was made after the appeal had
already been set down for hearing. It was heard 11 days before the
appeal was due to be heard. The delay in question was not explained by
the applicant. In the circumstances the applicant had failed to discharge
the onus to prove that the delay would not prejudice the respondent if
the order for further security for costs was granted. On those grounds
the application will be dismissed. (C.f Premchard Raychand ltd vs. Quarry
Services of E.A Ltd [1971] EA 172)

In the case of Lalji Ganji vs. Nathoo Bassanjee (1960) E.A 31 it was
held that;

1. The burden lies on the applicant for an order for further security
and he cannot merely by averring that the security already
deposited for costs is inadequate or because the costs in the court
below ordered in his or her favaour have not yet been paid impose
any obligation upon the court or the judge or the registrar to grant
his application. The order is given at the discretion of court
exercised judicially.
2. The word ‘at any time’ do not preclude court from taking into
account any delay by the applicant in making his application as a
factor to be placed in the scales whose may determine whether or
not court will exercise its discretion in the applicant’s favour.
3. The words ‘at any time’ means that no lateness in lodging an
application shall in itself preclude court from granting the
application.

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Security for Costs and Further Security for costs in the Supreme
Court.

Under rule 101 of the Supreme Court Rules 1996 appellants to the
supreme court are required to lodge Ushs. 400,000 as security for costs.
Court may on application by the respondent to a cross appeal direct a
cross appellant to lodge Ushs. 400,000 as security for costs. Court may
at any time if it thinks fit direct that further security for costs be given.

In the case of Atul kumar Patel vs. American International Banking

Corp SCCA no. 9/89 Order JSC, held that the applicant had shown good
cause why he should have security for costs. The fact that the
respondent was a foreign corporation with no known assets in Uganda
and considering the fact that the sums earlier deposited had been made
inadequate by the subsequent currency reform were all the grounds for
court to order a further security for costs.

In the case of Kakooza Jonathan & Anor vs. Kassala Co-operative

Society Ltd SC CAppln. No. 13/2011 an application was brought under
rule 101(3) of S.C Rules that the court may at anytime if the court thinks
fit direct that further security for costs be given and may direct that
security be given for payment of past costs relating to matters in
question in the appeal. Held that it is clear that the sub rule gives court
discretion to give security. That in an application for further security for
costs or past costs the burden lies on the applicant to show why that
relief should be granted. That in the case of Lalji Gangji vs. Nathoo
Vassanjee (1960) E.A 315 the court stated that the position thus; ‘The
burden lies on the applicant for an order for further security, as it normally
lies on any applicant to a court for any relief, to show cause why that relief
should be granted, and he cannot, merely by averting that security
already deposited for costs of the appeal is inadequate, or that costs in the

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action below, ordered in his favour, has not yet been paid, impose any
obligation upon the court or judge or registrar to grant his
application…’’That security for costs under rule 101(3) of supreme court
was not intended to be a substitute for an alternative to execution. In
Lalji Gangji vs. Nathoo Platt JSC stated; ‘As the authorities show non
payment by itself is not sufficient. What was needed was failure of the
execution, or some step to show that the appellant cannot pay, or an
admission on his part’’

That in the instant application there was no admission on part of the

respondent in the instant application. Therefore, in the circumstances
execution should have been taken to recover the costs.

In the case of Good Man Agencies Ltd vs. Hasa Agencies SCCAppln,
No. 1/2011 the bench of three justices ordered the respondent to give
security for costs. In reaching this decision, the court was influenced by
four factors, namely (1) that the respondent in that application had no
known address in Uganda except his counsel (2) that the respondent had
no known assets in Uganda or Kenya (3) that the respondent had
suggested before a single justice that he would offer Ushs.700,000,00/-
as the security for costs and (4) that contrary to the opinion of a single
judge, prima facie their doubts about the success of the respondent’s
appeal.

Security for costs in Election Matters.

S. 55 of Parliamentary Elections Act 2005 requires any candidate who

requests a recount of votes to deposit with the chief magistrate a security

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for costs of thirty currency points. Under S. 56 the monies deposited as

security for costs shall as far as necessary be paid out to a candidate in
whose favour the costs are awarded and if the deposit is insufficient to
cover the costs, the court shall order the liable party to pay the balance.

3 ARREST AND ATTACHMENT BEFORE JUDGMENT 0.40

A party may wish to take out his relief in the interim because is of the
view that time taken in conducting the proceedings may affect his rights
adversely. So where court is satisfied that the ends of justice require,
may order a defendant to find security or produce any property belonging
to him or her and place it to the disposal of the place or order the
attachment of such property before a suit is actually determined before
judgment is finally given by court.

Section 64 of the Civil Procedure Act provides that in order to prevent

the ends of justice from being defeated, the court may, if it is so
prescribed—

a) issue a warrant to arrest the defendant and bring him or her before
the court to show cause why he or she should not give security for
his or her appearance, and if the defendant fails to comply with
any order for security commit him or her to prison;
b) direct the defendant to furnish security to produce any property
belonging to him or her and to place the same at the disposal of
the court or order the attachment of any property;

Order 40 r 1 CPR provides that where at any stage of a suit, other than
a suit of the nature referred to in section 12(a) to (d) of the Act, the court
is satisfied by affidavit or otherwise—

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a) that the defendant with intent to delay the plaintiff, or to avoid

any process of the court, or to obstruct or delay the execution of
any decree that may be passed against him or her—
b) has absconded or left the local limits of the jurisdiction of the
court;
c) is about to abscond or leave the local limits of the jurisdiction of
the court; or
d) has disposed of or removed from the local limits of the jurisdiction
of the court his or her property or any part of it; or
e) that the defendant is about to leave Uganda in circumstances
affording a reasonable probability that the plaintiff will or may
thereby be obstructed or delayed in the execution of any decree
that may be passed against the defendant in the suit, the court
may issue a warrant to arrest the defendant and bring him or her
before the court to show cause why he or she should not furnish
security for his or her appearance.

However the defendant shall not be arrested if he or she pays to the

officer entrusted with the execution of the warrant any sum specified in
the warrant as sufficient to satisfy the plaintiff’s claim; and the sum shall
be held in deposit by the court until the suit is disposed of or until the
further order of the court.

Court may order a defendant who fails to show cause to deposit money in
court or property sufficient to satisfy the plaintiff claim or furnish
security for his appearance any time when called upon during the
pendency of the suit. –O.40 r 2 CPR.

Under O.40 r 4 where he fails to furnish security or find fresh security,

the defendant may be committed to prison until the suit is disposed of.

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See Pyarali Dakardini vs. Anglo American Amusement Park (1930)

4ULR 28

Mugimu vs. Basabosa [1991] ULSLR 191

Potgieter vs. St Stumbert [1967] EA 609

Order 40 r 5 CPR provides that where at any stage of a suit the court is
satisfied, by affidavit or otherwise, that the defendant, with intent to
obstruct or delay the execution of any decree that may be passed against
him or her—

a) is about to dispose of the whole or any part of his or her property;

b) is about to remove the whole or any part of his or her property
from the local limits of the jurisdiction of the court; or
c) has quitted the jurisdiction of the court leaving in that jurisdiction
property belonging to him or her, the court may direct the
defendant, within a time to be fixed by it, either to furnish security,
in such sum as may be specified in the order, to produce and place
at the disposal of the court, when required, the property or the
value of the property, or such portion of it as may be sufficient to
satisfy the decree, or to appear and show cause why he or she
should not furnish security.

The plaintiff shall, unless the court otherwise directs, specify the
property required to be attached and the estimated value of the property.
The court may also in the order direct the conditional attachment of the
whole or any portion of the property so specified.

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In the case of Uganda Electricity Board (In liquidation vs. Royal Van
Zanteen (U) Ltd HCMA 0251/2006 an appeal from the ruling and
orders of the deputy registrar in which he ordered the appellant to
deposit in court a sum of Shs. 150,000,000 as security within a period of
30 days. In the alternative it was ordered that the property belonging to
the respondent with a forced sale value of Shs. 150,000,000 be attached
in favour of the respondent pending of the main suit. On 13/3/2006 the
respondent filed a suit against the appellant claiming a sum of Shs.
79,933,873 together with interest thereon and costs of the suit. Hearing
was yet to begin but in the course of time, the respondent got to know
that the appellant, a statutory body was in the process of winding up of
its operations. The winding up process included sale of non core assets.
The respondent felt that if the suit was successful, it would be unable to
realize the fruits of its judgment hence the application. Justice Yorokamu
Bamwine held that O.36 r 5 (1)(a) provides for instances where the
defendant may be called upon furnish security for production of
property. That under this rule, court must be satisfied not only that the
respondent is about to dispose of its assets, but also that the disposal is
with intent to delay or obstruct execution of any decree that may be
passes against it. That judging by the construction of O.36 r 5(1) (now 40
r 5 (1)(a)), its object is to prevent any attempt on part of the defendant to
defeat the fruits of the decree that may be passed against him. The sole
purpose of the attachment before judgment is therefore to give an
assurance to the plaintiff that his decree, if made, would be satisfied. It is
a form of guarantee against the decree becoming redundant for want of
property for its satisfaction. That it is the considered view of court that
before making an order under O.36 r 5(1)(a) the court ought to be
satisfied not only that the defendant is really about to dispose of his
property or about to remove it from its jurisdiction but also that the

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disposal or removal is with intent to obstruct or delay the execution of

any decree that may be passed. As the learned editors in LMJ’s code of
Civil Procedure (of India) Vo1. 4 at P.433 state in commentary, ‘The
satisfaction must be of the court as regards these matters and it must be
based on some material derived either from the affidavit of the party,
applying (under O.38 r 5) or otherwise. It is no doubt necessary for the
court to state in the order passed (under O.38 r 5) the grounds on which
satisfaction is founded, but there must be some material on record to
indicate that the satisfaction was not illusory.’’ That there was need for
evidence to show that the applicant had sold, was selling or was about to
sell, its property with the intent to defeat the respondent’s claim in the
event of his suit succeeding or that in the event of a successful suit, the
decree would not be satisfied by the defendant or any other person on its
behalf which evidence is not on record.

In the case of Ssebaduka vs. Warid Telecom Ltd HCMA No. 204/2014
an application brought under provisions of s.14 (c ) and 33 J.A, 98 CPA,
O.41 r 1 and 2 and O.40 r 5 and 12 CPR, seeking a temporary injunction
from disposing off the whole or any part of or parting with possession of
the whole or any part of its property to Bharti Airtel or any other person
until hearing or disposal of the main suit, Alternatively an order directing
the respondent to furnish security or to produce and place at the
disposal of court, all its assets and property or the value of all its assets
and property to satisfy the decree that may be passed against in the
main suit. Justice Flavia Anglin held that the provisions of O.40 r 5 (1)
CPR have been considered in a number of decided cases. It has been
established that the order provides for attachment before judgment and
that ‘it is only available where there is a real evidence that the respondent
is about to leave country, sell the property or delay justice’. See UTL vs.
Justus Ampaire. That in the current case, not only is the respondent

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about to dispose of the whole of its property or remove it from the local
limits of the jurisdiction of court, but it has been admitted by the
respondent that the company’s shares have been transferred and its
infrastructure that include most have been sold to Eaton Towers Ltd and
Bank accounts closed. That according to the case of Ovation
International (India) Pvt Ltd vs. Adverts (Private) Ltd and Another 1969
Comp Cas 569 [Bom] ‘Once the allegations are well founded through
affidavit evidence, court is bound to issue an order to the respondent to
furnish security’’. That the applicant in the present case did not specify
the property required to be attached or their estimated value as required
under O.40 r 5 (c) CPR, that the only alternative is for court to order the
respondent to pay into court a sum of money considered sufficient as
security to satisfy the claim. Court considered 100million to be sufficient
security and directed the respondent to deposit the sum in court within 2
weeks from the date of the order by way of bank guarantee.

Order 40 r 6 CPR provides that where the defendant fails to show cause
why he or she should not furnish security, or fails to furnish the security
required, within the time fixed by the court, the court may order that the
property specified, or such portion of it as appears sufficient to satisfy
any decree which may be passed in the suit, be attached. Where the
defendant shows such cause or furnishes the required security, and the
property specified or any portion of it has been attached, the court shall
order the attachment to be withdrawn, or make such other order as it
thinks fit.

Order 40 R 8 CPR provides that where any claim is preferred to property

attached before judgment, the claim shall be investigated in the manner
hereinbefore provided for the investigation of claims to property attached
in execution of a decree for the payment of money.

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In the case of Stanbic Bank (U) Ltd vs. New Makerere Kobil Station
Ltd HCMA No. 565/2010 an application under O.40 r 8 & 12 CPR for
orders that the bus attached by orders of court be released from
attachment. Justice Kiryabwire held that the import of O.40 r 8 is that
the same test for release from attachment under O.22 r 55-57 should be
applied. That whether property in possession of the person at the time of
attachment was in his or her possession on his or her own account. That
a review of the bus logbook shows that the bus is owned by the applicant
and lease agreement shows that it is subject of a lease with the applicant
bank, so the bank owns the bus. That also as to release from
attachment, it was held in the case of Abby Mugimu vs. Bas Bas [1991]
ULSR1 91 at 195 that no attachment before judgment can issue where it
affects the rights of third parties. Clearly that the rights of applicants
under the lease agreement are being affected. Bus was released from
attachment.

However in the case of Rev. Ezra Bikangiso vs. New Makerere Kobil
Station HCMA No. 10/2010 an application by way of summons brought
under O.40 r 8 and 12 CPR for orders that Isuzu bus attached pending
suit be released. Justice Kiryabwire held that any investigation under
O.40 r 8 CPR of property attached before judgment should follow the
same investigations and tests set out in O.9 rules 55 and 57 CPR with
respect to objections to attachment of property. That there is no
independent evidence brought by the applicant to show that he has
actual or constructive possession of the said bus. That the applicant has
failed to establish that on the date of the attachment, he was in
possession either actual or constructive of the said bus.

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4. PAYMENT IN COURT.

The rules of procedure allow a defendant / plaintiff who is a defendant to

the counter claim who wishes to settle a claim to pay money into court
and this may be done to achieve three things;

1) To put pressure on the plaintiff to accept a settlement,

2) To protect the defendant in the issue of costs
3) To protect the defendant from interest that would have accrued to
the property.

A defendant should consider making a payment into court if he or she is

advised by his counsel that there is some prospect of the court finding in
favour of the plaintiff at the trial. If the plaintiff does eventually succeed
in his action, the defendant will usually be ordered to pay the whole of
the plaintiff’s costs however by making payment in court, the defendant
will cease being liable for any cost incurred by the plaintiff after the
payment in, provided that the amount paid is equal to or exceed the
amount damages plus interest ultimately awarded to the plaintiff at the
trial.

O.27 r 1 CPR provides that where any suit is brought to recover a debt
or damages, any defendant may before or at the time of filing his or her
defense, or at any later time by leave of the court, pay into court a sum of
money by way of satisfaction, which shall be taken to admit the claim or
cause of action in respect of which the payment is made; ..or he or she
may with a defense denying liability (except in suits or counterclaims for
libel or slander) pay money into court which shall be subject to the
provisions of rule 6 of this Order; except that in a suit on a bond,
payment into court shall be admissible in respect of particular breaches
only, and not of the whole suit.

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Subject to the Civil procedure Act or any other law relating to payment
into court, no money or valuables shall be deposited in court except
upon the written order of the court; no money or valuable deposited in
court on a court order shall be paid out of court except in pursuance of a
decree or other order of court-Rule 8 of the Judicature (Court fees, Fines
and Deposit) Rules SI 13-3.

Procedure for payment in:

a) Payment must be physically lodged at the registry of the high

court;
b) Notice of the payment must be given to the plaintiff and every other
defendant-O.27 r 4
c) Where two or more causes of action are joined in one action, the
defendant has the following options; but he must state which
option is selected;
i) To make a single global payment in respect of all the causes
of action;
ii) To make a single payment in respect of some only of the
causes of action, specifying which ones
iii) To make such individual payment of each cause of action
d) Where the defendant has counter claimed the notice must state
whether the payment in has taken the counter claim into account
e) The defendant must be given written acknowledgement of receipt of
the notice by the plaintiff within seven days of such receipt-O.27 r
7

A plaintiff may accept a payment into court by giving notice to every

defendant. Where the payment in is made before trial, acceptance must
be within seven days-O.27 r 7 of notice of payment in where the

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payments in comes, provided that the court has not began to give its
judgment.

The effect of acceptance of payment in is that the action, or those parts of

it covered by the payment in, is stayed-O.27 r 6(a). Where the acceptance
is in relation to the entire plaintiff’s cause of action, or where it relates to
some only, but the plaintiff gives notice abandoning the others, the
plaintiff is entitled to costs up to the date of acceptance-O.27 r 8 CPR.

Generally where the payment in has been accepted, the money may be
paid out without leave of court-O.27 r 5, but in the following cases leave
of the court is required;

a) Where money is paid in by some but not all of the defendants-O.27

r8
b) Where there is a defense of tender before action-O.27 r 3
c) Where a plaintiff is a person under disability (minor or mental
patient)-O.27 r 11
d) Money paid into court under an order of the court-O.27 r 10

Where payment into court is refused, expressly or impliedly, and the

damages and interest eventually awarded to the plaintiff at the trial do
not exceed the payment in, the court will make a split order awarding;

a) Costs to the plaintiff up to the date of payment in; and

b) Costs of the defendant after the date of the payment in as, the
costs of the trial generally in the early stages of litigation, a split
order will usually penalize the plaintiff heavily in costs-O.27 r 6

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Tender before action

It is a defense to a claim for a debt that the defendant tendered the

amount of the debt before the action was commenced-O.27 r 3

The essence of the defense is that the commencement of the action was
unnecessary because the plaintiff refused to accept the amount of the
debt, which the defendant tendered, and therefore the plaintiff should be
required to pay the whole costs of the proceeding.

In order to raise the defense, the defendant must plead in his defense.

a) That he made tender of the amount of the debt before the action
was filed and
b) That he paid into court an amount equal to or exceeding the
amount alleged to have been tendered, and that the plaintiff was
duly notified of such payment in court

Where money is paid into court for payment to a party, it may be paid
out under the direction of the judge / court without a formal order-Rule
11 of the Judicature (Court fees, fines and deposit) rules.

In all cases in which money is paid out of court without a formal order,
the judge shall make a note of the direction given.

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

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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

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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

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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.

ACTUAL HEARING O.18 & O.15 CPR

After court has disposed off all interlocutory matters it will hear a case
beginning with the plaintiff unless the defendant has admitted the facts
alleged by the plaintiff and or raises preliminary objection that the
plaintiff is not entitled to the relief sought-O.18 r 1 CPR.

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In the absence of a preliminary objection by the defendant, the plaintiff

will proceed to prove his or her case by giving an opening statement and
producing evidence in support of his or her case by way of documents or
oral testimony of the witnesses. The opposite party will also state his or
her case and produce evidence if any. Only parties are allowed to be in
court throughout the hearing of the case while a witness while giving
testimony, the other witnesses should not be in court or within the
hearing range.

After all the witnesses have testified, the party who begun will address
court generally on the whole case and particularly on issues framed for
resolution citing the relevant supporting evidence and the law. The
opposite party will respond generally on the whole case focusing on
issues raised and particularly the points made by the party beginning. A
party beginning may then reply to clarify on the points raised in response
-O.18 r 2 CPR.

In most cases, evidence is given by oral testimony of witnesses in court.

The witnesses voluntarily appear in court on dates fixed for hearing.
However in the event that a witness refuse to cooperate, the party calling
the witness is required to inform court and apply for witness summons
to compel the witness to attend court and give evidence or produce
documents needed for a trial-O.16 r 1 CPR.

The party applying for witness summons is required to pay into court a
sum of money to cover travelling and other expenses of the witness
before summons is granted-O.16 r 2 CPR. Where a person summoned to
attend court and give evidence or produce a document without lawful
excuse fails to comply with the summons or intentionally avoids service,
court may issue a warrant of arrest for that person with or without bail
and may make an order for the attachment and sell of his or her property

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to meet the costs of attachment and fine which may be imposed under
O16 r 10 CPR.

A person summoned shall attend each hearing until the suit is disposed
of unless court otherwise directs. On application of either party, the
court may require the person summoned and attending to furnish
security to attend the next or any other hearing or until the suit is
disposed of and in default of his /her furnishing the security, court may
order him /her to be detained in civil prison-O.16 r 15 CPR.

The party to the suit who called the witness will examine the witness
first. This is known as examination in chief. Thereafter the opposite party
may cross examine the witness (cross examination) and the other party
(1st party) re-examine (redirect) the witness to clarify and correct any
issue raised during cross examination. This is known as re examination.

Leading questions are not allowed during examination in chief. Counsel

should endavour to be ass polite as possible on the witnesses during
examination in chief so that they can feel at home in court and give
evidence properly before they are torn down by the opposite counsel in
cross examination. Re-examination should be confined to such matters
raised during cross examination only. Either party may object to any
particular question and the court may reject or uphold the objection if
there is sufficient reason for so doing.

The court may recall such remarks as it thinks material in respect of the
demeanour of any witness while under examination-O.18 r 10 CPR. The
witnesses in attendance in court give oral evidence or testimonies which
are written down by a presiding judge / registrar in a narrative form and
when completed the notice written are signed at the end by the judge or

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registrar who also indicates the date when the evidence was given-O.18 r
4 & 5 CPR.

In certain appropriate cases the court may take evidence by way of

affidavit or witness statements instead of oral testimony.

In the case of Spear Motors Ltd vs. Attorney General & 2 Ors HCCS
No. 692/2007 Justice Irene Mulyagonja held that there are no rules of
court in Uganda to guide the use of witness statements. However they
have been used in the commercial court as far back in 2004 and the
practice had developed as to how they are employed. That the genesis of
the use of witness statements in the commercial court is to be found in
the constitution-6. ‘Rule 5 thereof provides that the ordinary rules of
procedure of the High court will apply to all commercial actions, subject
to the clarification set forth in the practice direction. It is further
provided that the procedure in and the progress of commercial action
shall be under the direct control of the commercial judge who will, to the
extent possible, be proactive. On the practice that has developed from
this rule is the use of witness statements and may disputes have been
concluded using them. The practice was endorsed by the judge of this
court and administrative Circular No. 1 of 2012 was issued by the Head
of the Court on 16/01/2012 and posted on the doors of the court here.

Where a witness is about to leave the jurisdiction of court or for any

other sufficient cause shown to the satisfaction of court, court may take
evidence of a witness immediately upon the application of any arty or
witness at any time after institution of the suit. The evidence so taken is
also signed by the judge and may be read at any hearing of the suit-O.18
r 12 CPR.

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The court may at any stage of the suit inspect any property or thing
concerning which any question may arise and record such remarks as it
thinks material to the question. This is known as visiting the locus in
quo (scene in dispute)-O.18 r 14 CPR.

In the case of David Acar & 3 Ors vs. Alfred Acar Aril [1982] HCB 60,
it was held that when court deems it necessary to visit the locus in quo
then both parties and there witnesses must be told to be there. When
they are at the locus in quo it is not a public meeting were public opinion
is sought. It is a court sitting at a locus in quo. The purpose of the locus
in quo is for the witnesses to clarify what they stated in evidence in
court. When a witness is called to show or clarify what he /she stated,
he/she must do so on oath. The other party must be given the
opportunity to cross examine him /her. The same opportunity must be
extended to the other party. Any observation by the court must be
recorded and must form part of the proceedings.

In the case of Alice Namisango vs. Galiwango [1986] HCB 37 it was

held that a visit to a locus in quo is intended to enable court to
understand and follow the evidence adduced by the parties with regard
to the disputed boundaries or other subject matter. It is not intended to
give a trial judge, magistrate or registrar an opportunity to carry out a
personal investigation of the case. It is an essential trial procedure as it
may involve the recording of evidence or interviewing of witnesses. It is a
procedure which should not be indulged in by the appellate courts save
in exceptional circumstances because its equivalent to taking additional
evidence which is not on record of appeal.

In the case of Brukana Jamagara vs. Obbo-Ogolla [1976] HCB 31 it

was held that the procedure when visiting the locus in quo is for the
court to make a note of what took place during that visit in its record and

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this note should be either agreed to by the advocates or at least read out
to them.

In the case of Yeseri Waibi vs. Edias Byandala (1982) HCB 28 it was
held that the usual practice of visiting the locus in quo is to check on the
evidence given by the witnesses and not fill gaps for then the trial
magistrate may run risk of making himself a witness in the case. Such a
situation must be avoided. That the trial magistrate must take note of
what takes place at the locus in quo and if a witness points out any place
or demonstrates any movement to the court, then this witness should be
recalled by the court and give evidence of what occurred.

Where a judge is prevented by death, transfer or other cause from

concluding the trial of the suit, his or her successor may deal with the
evidence taken down so far as if it was taken by him /her or under his or
her directions and may proceed with the suit from the stage at which
his/her predecessor left it. This also applies to suit transferred or
withdrawn by the high court under section 18 CPA-O.18 r 11 CPR.

In practice the proceedings of the court are written down by the presiding
judge /registrar at every hearing session until the case is closed. The
notice written down by the judge or registrar constitute the official record
of the proceedings in respect of each particular suit or application. The
notice are confidential and the parties are not allowed to read them until
after judgment has been given.

The notice is put in the case file together with the pleadings. The case file
is kept by the clerk/judge/ registrar in the relevant registry. It is
produced at every other hearing session of the case so that the judge or
registrar can continue to take notice. At the end of each hearing notice,

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the judge or registrar signs at the end of the notice and writes the dates
on which the hearing session was held.

After all the parties and their witnesses have testified, the advocates for
the parties may make oral submission on the issues farmed for
resolution. The oral submissions are also written by the judge or
registrar. Alternatively and with leave of court the advocates may file
written submissions which are received by the clerk, judge o registrar in
the relevant registry. The written submissions are put in the case file by
the clerk and the file is forwarded to the judge or registrar for
consideration and further management of the case.

After considering all the pleadings, the evidence as presented by the

parties, the submission by the advocates for parties and the relevant law
applicable, the judge or registrar writes a judgment or ruling in respect of
the suit or application respectively. The judgment or ruling is read out to
the parties usually on notice. A judge or registrar signs at the end of the
judgment or ruling and writes the dates on which it was made
immediately after reading it. That date is also the date of the decree or
order respectively and the time prescribed for appealing begins to run
from that date. A copy of the judgment or ruling is put on the case file
which is forwarded to the registrar for taxation of costs and execution
(enforcement of judgment/ ruling) –Sec 25 CPA and O.18 CPR.

After the judgment, any party to a suit or application or his/her advocate

may write a letter to the registrar and requests for a typed record of the
proceedings and a copy of the judgment usually at the cost of the party
requesting. The record of proceedings is a prerequisite for filing an
appeal.

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In addition to the taking written notices, the court may also make a voice
recording on audio tapes at every hearing session. This is practiced
especially in the Supreme Court, constitutional court, court of appeals,
commercial court and in some high profile cases of public interest. They
are kept by the clerk /judge /registrar until after hearing is closed. The
voice recordings are played and transcripted. The transcripts are crossed
by the judge / registrar thereafter they are kept in the case file in the
registry. After judgment has been given any party or his or her advocate
may write a letter to the registrar requesting for a copy of the transcript
usually at the cost of the person requesting.

A Summary of how a case progresses through court

1. A party who wants to institute a case or his advocate goes to the

relevant registry of the court and files the case
2. The registry staff opens a court file for the case (case file) and
assess the court fee chargeable for filing the case in accordance
with a fixed schedule of court fees set by the court
3. The filing fees are paid in a bank by a party instituting the case
who is issued with a general receipt of court upon production of
proof of payment of fees in the bank usually a copy of the
assessment form signed by the receiving bank.
4. The registry staff give the case a number and forwards it to the
registrar to review pleadings, sign and seal them if properly drawn
5. If pleadings are not properly drawn they may be rejected, if they
are appropriate they will be signed and sealed by the registrar who
also signs and seals the summons to file a defense.
6. The summons together with the pleadings is served on the opposite
parties by the party who filed the case

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7. The opposite parties file their defenses or other relevant reply in

response to the summons and pleadings served on them
8. The party who instituted the suit may reply to the defense
9. Unless interlocutory applications are made, the case is sent for
mandatory mediation
10. Upon failure of mediation, scheduling conference is fixed by
the registar in consultation with the judge’s clerk. A hearing notice
detailing the date and time of the mention or scheduling
conference is signed, sealed and issued by the registrar. The case
is included in the subsequent cause list published and released to
all court users.
11. The case file is forwarded to the relevant judge to enable him
to study the case prior to the scheduling conference
12. At the scheduling conference the judge helps the parties to
agree on the issues in dispute and discuss the possible settlement
options. Where settlement is not possible, the judge sets a
timetable for the subsequent management of the case
13. Ultimately the case comes for hearing
14. Following completion of hearing of the case, a judgment is
given
15. The successful party extracts a decree from the judgment
and forwards it to the other party to confirm its terms by endorsing
or signing it before forwarding it to the registrar to sign and seal it
16. The successful party draws and files a bill of costs which is
taxed by the registrar at a taxation hearing date. Thereafter the
successful party extracts a certificate of taxation indicating the
amount of costs allowed

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17. If the losing party fails or refuses to pay all sums due under
a decree and certificate of taxation then the successful party may
apply to the registrar for execution of the decree
18. The registrar issues a warrant of execution and appoints a
bailiff to recover a sum owed
19. After the bailiff’s action, the bailiff files a return at the court
providing details of what action has been taken and an account of
the monies recovered if any
20. Unless the judgment is set aside or appealed, the case file is
closed and archived at the court.

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Topic VII

JUDGEMENTS-S.25 CPA

Section 25 CPA provides that court after case has been heard, shall
pronounce judgement, and on judgement decree shall follow; except that
if a defendant does not enter appearance as may be prescribed, the court
may give judgement of a plaintiff in default.

0.21 r 1 provides for judgement, that in a suit where hearing is necessary

the court to pronounce judgement in open court either at once or on
some future date notice of which shall be given to the parties or their
advocates.

0.21 r 3 the judgement pronounced by the judge who read it shall be

dated and signed by him/her in open court at the time of pronouncing it
and the judgement pronounced by judge other than a judge by whom it
was written must be dated, countersigned by him in open court at the
time of pronouncing it. A judgement once signed shall not afterwards be
altered or added as otherwise provided in section 99 CPA or review.
Sec.99CPA provides for amendment of judgements, decree or orders in
case of clerical or mathematical mistakes in judgements, decree or
orders, or errors arising in them from any accidental slip or omission.

The form of judgement is provided for under 0.21 r 4 that judgement in

defended suits shall contain a concise statement of the case, points for
determination, decision thereon and reason for such decision, and 0.21 r
5 the court is required to state its decision on each issue with reason
unless the finding upon anyone or more issue is sufficient for the
decision of the case.

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DECREE

Section 25 CPA provides that “and on that judgement a decree shall

follow”. Section 2 CPA defines a decree as a formal expression of an
adjudication which, so far as regards the court expressing it, conclusively
determines the rights of the parties with regard to any of the matters in
controversy in the suit and may be either preliminary or final. A Decree
is further defined by Osborne Dictionary to mean an order court
pronounced on the hearing of the suit.

In the case of Attorney General vs. Goodman Agencies Ltd & Ors M.A
361/2015 held that the law is well settled that only a decree holder is
entitled to the fruits of judgement. A decree holder is defined under
section 2 (d) of the civil procedure Act. Section 2(c) defines a decree and
under section 25 CPA a decree follows judgement.

The contents of a decree a provided for under 0.21 r 6. Sub rule 1

provides that a decree shall agree with the judgement, it shall contain a
number of suits, the names and description of the parties, the
particulars of the claims and shall specify clearly the relief granted or
other determination of a suit. In the case of Bamwite vs. Patel HCMA
No. 188/2014 Madrama J held that a perusal of the decree extracted
shows that it does not conform to the consent judgement contrary to
Order 21 r 6(1) CPR which is mandatory and in the premises the decree
cannot stand and struck off the record for non compliance with Order 21
r 6(1) CPR.

Preparation of a decree and orders is provided for under 021 r 7.1) it

shall bear the date on which the judgement was delivered, 2) it shall be
the duty of the party successful in the suit to prepare without delay a

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draft decree and submit it for approval to the opposite party to a suit
who shall approve it with or without amendment, reject it without undue
delay. If the draft is appropriate it is submitted to the registrar who it is
satisfied that it’s drawn up in accordance with the judgement shall sign
and seal it accordingly.

If the parties and the registrar do not agree upon the terms of the decree
then shall be settled by the judge who pronounced the judgement and
the parties are entitled to be heard thereon if they so desire. The rule has
been considered in Eastern Province Bus Co. vs Bibi (1971) ULR 87-
court found that it’s the duty of the successful party to have in the first
instance prepare the draft decree but if he fails to do so and the other
party desire to appeal against the judgement, the party will have to first
the decree extracted. This case considered the issue of preliminary
decree and final decree and it observed that in the case where liability
had been determined first and quantum of damages later, the plaintiff
was entitled to obtain a preliminary decree first and the final decree upon
determination of quantum of damages

This duty of extracting a decree has also been considered in Asdi Weke
vs Livingstone Ola (1985) HCB 52 court found that the duty of
extracting a decree is imposed upon a successful party because it’s
presumed that he will be anxious to execute the decree. The non-anxious
party to appeal also has a duty to take necessary part to extract decree.
This includes taking or extracting a decree which is a pre requisite for an
appeal

However it is no longer a requirement to extract a decree before

commencing an appeal. In the case of Byekwaso & Anor vs. Ndagire HC
Civil Appeal No. 078/2012 Justice Percy Night Tuhaise stated that it
has long been a requirement of the law, as held in W.T.M Kisule vs.

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Nampewo [1984] HCB 55, Yoana Kakuze vs. Victoria Nakalembe [1988-
1990] HCB 138 and Robert Biiso vs. May Tibamwenda [1991] HCB, 92
that failure to extract a formal decree before filing the appeal was a defect
going to the jurisdiction of court and render the appeal incompetent.
That the foregoing provision was based on section 220(1) MCA. All of
them were made before the current constitution which was promulgated
in 1995. This legal position appears to have changed in light of Art.
126(2)(e) of the said constitution which enjoins courts to administer
substantive justice without undue regard to technicalities. That it has
been since been held by court of appeal in Banco Arabe Espanol vs. Bank
of Uganda Civil Appeal No. 42/1998 that the extraction of a decree was a
mere technicality which the old municipal law put in way of intending
appellants and which at times prevented them from having their cases
heard on the merits, and that such a law cannot co exist in the context of
Article 126(2)(e) of the constitution. That the position was maintained by
the court of appeal in Standard chartered bank (U0 Ltd vs. Grand hotel (U)
Ltd Civil Appeal No. 13/1999. The judge held that the extraction of a
formal decree embodying the decision complained of is no longer a legal
requirement in the institution of an appeal. That the court in the cited
Banco Arabe Espanol case stated that an appeal by its very nature is
against the judgement of a reasoned order and not a decree extracted
from the judgement or the reasoned order. Section 220(1)(a) MCA is
appearing now in conflict with the constitution which takes precedence
as supreme law of the land. Besides, O.21 r 7(3) CPR requires magistrate
who pronounces the judgement to draw up the decree and to that extent
the magistrate’s failure to extract decree should not be visited on the
appellant.

From judgement decree follows

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From interlocutory application-Ruling follows

From ruling-orders

COSTS-S.27 CPA

After judgement has been given in an action, the judge will have to deal
with the matter of costs or to determine how they are borne i.e. whether
a particular party must pay his own costs or have them paid by the other
side and on what basis they can be assessed and paid. Practically a party
awarded costs will not obtain from the other side all expenses he/she
has incurred but only so much as its properly allowable on the particular
basis which they a assessed. What is considered is the incidence and
assessment of costs

Generally speaking a right to costs against another party only arises after
court has made an order for costs. Exception

1. Upon discontinuance/ withdraw of an action without leave of court

2. Upon consent of the parties where a party accepts payment in
satisfaction of a claim inclusive of costs otherwise whenever a case
comes for determination, it has to make an order for costs as
borne.

Costs mean those expenses scrutinised and allowed by a taxing master

in accordance with the taxation of costs rules, section 27(1) CPA provides
that it is subject to such conditions as limitations as may be prescribed
and with the provisions of any Law for the time being in force, the costs
of and incidence of all suits shall be in the discretion of court or judge
and the court or judge shall have a full power to determine by whom and
of what property and what extent such costs are to be paid and to give all
the necessary direction for the purposes aforesaid the fact that the court

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or judge has no Jurisdiction to try the suit shall be no bar to the exercise
of such powers provided that costs of any action, cause or other matter
or issue shall follow the event unless the Judge or court for good reason
shall order.

In the case of Col.Dr.BesigyeKiiza v Museveni YoweriKaguta,

ElectoralCommission ((Election Petition No.1 Of 2001)) [2001]
UGSCODOKI, CJ (by then) held that it is well settled that costs follow the
event unless the court orders otherwise for good reason. The discretion
accorded to the court to deny successful party costs of litigation must be
exercised judicially and or good cause. Costs are an indemnity to
compensate the successful litigant the expenses incurred during the
litigation. Costs are not intended to be punitive but a successful litigant
may be deprived of his costs only exceptional circumstances. See
Wambugu vs. Public Service Commission (1972) E.A. 296.
In awarding costs, the courts must balance the principle that justice
must take its course by compensating the successful litigant against the
principle of not discouraging poor litigants from accessing justice
through award of exorbitant costs.
That in the present petition, he was of the considered opinion that the
interests of justice required that the Court exercises its discretion not to
award the costs to the Respondents. That this was a historic and
unprecedented case in which a presidential candidate who is a serving
President was taken to court to challenge his election. The petition raises
important legal issues which are crucial to the political and
constitutional development of the country. In a sense, it can be looked at
as public interest litigation. It promotes the culture of peaceful resolution
of disputes. The petition was not frivolous or vexations as the Petitioner
succeed on issue No.1 and No.2, the petition was therefore of great
public importance in the history of Uganda. In several cases of significant

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political and constitutional nature, the court has ordered each party bear
its own costs. Accordingly each party should bear the costs of litigation
in this petition.

In the case of Paul Mwiru v Hon Igeme Nathan Nabeta Samson &
others Election Appeal No. 6/11 Byamugisha JA held that the law is
settled that costs in litigation follow the event and a successful party is
entitled to costs except for good reasons connected with the case. The
decision to award or not to award is within the discretion of the court
which tried the case. Normally an appellate court will not interfere with
the exercise of discretion unless it is shown that wrong principles were
followed by taking into account an irrelevant factor or failing to take into
account a relevant factor. That in the case of Software distributers
(Africa) Ltd & Anor vs kamboha Perez CA no. 07/06 this court said;

“We agree with the statement of the law as cited by both counsel that an
appellate court will not interfere with the exercise of discretion by a lower
court unless it is clearly shown that the exercise was judicially or wrong
principles were followed. If there are grounds to support the exercise by
the trial judge of the discretion he or she purports to exercise the question
of sufficiency of those grounds for this purpose is entirely a matter for the
trial judge to decide, and the appellate court will not interfere with the
discretion. It is immaterial that the appellate court would have exercised
its discretion differently.” That section 27 CPA governs the award of costs
in civil matters in general. The section has a proviso which states that:
“provided that the costs of any action, cause or other matter shall follow
the event unless the court or judge shall for good reason otherwise order.”
That in election matters the court determining who should bear the costs
of an election is guided by rule 27 of the parliamentary petition Rules
SI.141-2 which states as follows;

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“All costs of and incidental to the preservation of the petition shall be

defrayed by the parties in such manner and in such proportions as the
court may determine.” That the trial judge in determining how costs
should be defrayed said;

‘‘Ordinarily, costs of any action should follow the event. To that extent, I
would have awarded 75% costs to the 1 st and 3rd respondents and 25%
costs to the petitioner given that he was successful against the 2 nd
respondent on issue No. 3. However, I am aware that petitions are matters
of national or political importance for which court should be hesitant to
award costs. I am mindful of the considerations of Bamwine PJ who, in
Kadama Mwogezaddembe v Gagawala Wambuzi Election Petition No. 2 of
2001 held: ‘There is another dimension to such petitions; the quest for
better conduct of elections in future...keeping quite over weaknesses in the
electoral process for fear of heavy penalties by way of costs in the event of
losing the petition.,. would serve to undermine the very foundation and
spirit of good governance.’ Furthermore, in the present case very pertinent
issues were diligently raised and prosecuted in a remarkably expeditious
manner. A party that exhibits such judicious conduct of their case should
be applauded and need not, in my view, suffer costs. Particularly so, in an
election that by law should be expeditiously prosecuted. Consequently, in
exercise of the court’s discretion, i do refrain from making any order as to
costs. Each party shall bear their costs.’’ That the trial judge gave reasons
for the exercise of the discretion and the reasons given were not
erroneous in law.

In the case of Departed Asian property Board vs Jaffer Brother Ltd

SCCA N0. 9/1998 Kanyeihamba JSC held that although courts have a
discretion as to awarding of costs, it’s a general rule of law and practice
that costs should normally follow the event of the suit. That the principle

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established in JB Kohil and others v Bachulal popatal (1947) EA 219

where court said; “having regard to the above authorities it seems to be
that were a discretion as to costs has been exercised by the Judge his
discretion is impeachable unless it can be shown to have taken into
consideration matters which are irrelevant to the issue in the case or non-
existent. Further an appeal would be entertained from the exercise of the
discretion as to costs where court of appeal is satisfied that the lower court
applied wrong principles of law” That the ground advanced on behalf of
the appellant that the court of appeal by not stating categorically that
there was or there was not a cause of action against the appellant, the
appellant had won that aspect of appeal is not convincing. The appellant
was joined for a different reason and on a different criterion. That the
trial judge was wrong in principle and in the justice of the case when he
awarded costs to the defendants who had been joined in the suit against
the wishes of the respondent.

In the case of UDB vs Muganga Construction ( 1981) HCB 35 in a trial

for the case, the parties agreed that the sum claimed in the plaint was
incorrect, on ascertainment of correct sum which was less than the
original claim in a consent judgement was entered for the plaintiff for
the same. The parties agreed on the incidence of costs. The plaintiff
argued that he was entitled to his cost while the defendant contended
that each party should bear its costs since the plaintiff had claimed a
wrong amount. The court found that section 27 (1) CPA provided that
costs should follow the event unless the court orders otherwise. The Act
gave the judge discretion but it had to be exercised judicially. The court
found that a successful party can only be denied costs if it’s found that
but for his conduct the action couldn’t have been brought. The costs
follow the event even where a party succeeds only in the main purpose of
the suit. In the case the plaintiff had stated its claim 93% correct the

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defendant themselves didn’t know the exact amount owing nor did they
pay court a smaller sum which they admitted to be owing, that there was
no good reason for denying the plaintiff bank costs.

In the case of UTC VS Owuto (1985) HCB 27 in the case the judge
struck out a plaint. He did not award costs to the appellant for reason
that counsel did not apply for costs. On Appeal the appellant court found
that costs are in the discretion of court under section 27 CPA that there
should be some grounds upon which the trial judge would exercise this
discretion and the adequacy shouldn’t be a matter for the appellant court
to interfere. The court found that the reasons given by the judge that
counsel for the applicant did not apply for costs did not constitute a good
reason within the meaning of the rule and shouldn’t be regarded as
discretion exercised judicially and there was no justification for depriving
the appellant of his cost.

The costs must be awarded by court otherwise no such can be taxed by a

taxing master. In the case of Rwantale vs Rwabutonga (1988-90)
HCB100 this case court found that the chief registrar had no jurisdiction
to tax a bill of cost where none was awarded by the court.

Under O. 21 r 8 CPR, the decree or order shall not state the amount of
the costs, which, after they have been taxed or otherwise ascertained,
shall be stated in a separate certificate to be signed by the registrar, or,
in a magistrate’s court, by the magistrate.

Costs generally involves professional fees of engaging an advocate

otherwise all instruction fees provided for by the Advocate Act and
computed in accordance with the Advocates (Remuneration and Taxation
of Costs) Rules provides for instruction fees, drafting, drawing and

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perusing documents and handling both contentious and non-contentious

matters.

Costs are assessed by the court through a process called taxation of

costs done by an officer of court called a taxing officer. In the case of the
High court is the registrar and magistrate court is the magistrate. The
process of taxing begins with a party entitled to costs presenting a bill of
costs which is an invoice that shows the sums due to the party entitled
to cost under the order of court. The bill of costs will show professional
charges and actual disbursement laid down in the separate column and
must be cast i.e. sums there in must be totalled before the bill laid for
taxation. Costs may also involve expenses or recovery of reimbursements
like court fees for filling a suit, travel expenses for witnesses or counsel
wherever applicable, telephone calls and all expenses admitted in court
as reasonably following from the action.

Value Added Tax is shown on the bill at the end separate. Taxation
proceedings are commenced in court by issuing a taxation notice stating
the day and time for taxation which is served on all persons entitled to be
heard. If any party who has been duly notified doesn’t attend within a
reasonable period, the taxing officer may proceed with the taxation
expert.

The process conducted in an informal way and when the queries are
settled the casting and summary must be completed them the bill will be
left with the taxing officer who determines the bill and issues a certificate
of taxation stating the amount fixed.

The procedure discussed in Evalist Nyanzi vs Zava (1983) HCB82 in

which notice of taxation must be given in all case except a defendant
against whom costs a being taxed in case in which he did not appear

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either personally or through an advocate. The court found that the taxing
officer sits as a court before whom parties lead evidence to prove or
disprove costs and he has to make his ruling or order. The court found
that the taxation proceedings are therefore civil proceedings and a
taxation notice is a summons. Any person disgruntled by an order of a
taxing master may appeal there from a judge.

Costs do not have a limit s.27 CPA. In the case of Arnest Ato vs Tom
Alwala (1986) HCB 85 Court found that costs have no limit, that a
magistrate court can award costs which exceed the pecuniary
jurisdiction of the presiding magistrate provided they were incurred in
the course of litigation.

In the case of Makula International Ltd vs Cardinal Nsubuga (1982)

HCB 11.C.A (UG) 1. It was held that the court would follow the principles
enunciated by the court of Appeal in Premchad Raichad Ltd and Anor vs
Quarry Services of East Africa No.3 (1972) E.A 162 namely;

a) The costs can’t not be allowed to rise to such a level as to confine

access to the courts to the wealthy.
b) That a success litigant ought to be fairly reimbursed for costs he
has incurred.
c) That the general level of remuneration of advocates must as such
to attract recruits to the profession.
d) That so far as practical here there should be consistence in the
awards made and having considered recent awards.

Interests-s.26 CPA

Section 26 CPA provides for award of Interests. Provides as follows;

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(1) Where an agreement for the payment of interest is sought

to be enforced, and the court is of opinion that the rate
agreed to be paid is harsh and unconscionable and ought
not to be enforced by legal process, the court may give
judgment for the payment of interest at such rate as it
may think just.

(2) Where and insofar as a decree is for the payment of

money, the court may, in the decree, order interest at such
rate as the court deems reasonable to be paid on the
principal sum adjudged from the date of the suit to the
date of the decree, in addition to any interest adjudged on
such principal sum for any period prior to the institution
of the suit, with further interest at such rate as the court
deems reasonable on the aggregate sum so adjudged from
the date of the decree to the date of payment or to such
earlier date as the court thinks fit.

(3) Where such a decree is silent with respect to the payment

of further interest on the aggregate sum specified in
subsection (2) from the date of the decree to the date of
payment or other earlier date, the court shall be deemed
to have ordered interest at 6 percent per year.

In the case of Lwanga vs. Centenary Rural Development Bank [1999]

1 E.A 175 CA, Okello JA stated; ‘

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‘‘A proper construction of section 26(2) of the Civil Procedure Act

would show that it empowers court to award three types of
interests at the rate it deems reasonable:

1. Interest adjudged on the principle sum from the period

prior to the institution of the suit. Here, the court must
first decide on the evidence, the question of award ability
of this interest and on the rate at which it is to be
awarded if any.
2. In addition to that, Interest on the principle sum adjudged
from the date of filing the suit to the date of the decree.
Here, the court decides at its discretion which must be
made judicially, the rate of interest to be awarded
3. Further to the above, Interest on aggregate sum so adjuged
from the date of the decree till payment in full.
That OGUS ON THE LAW OF DAMAGES at page 100
rationalises interest in two ways;
(1) That the plaintiff is thereby being compensated for
being kept out of his money. He has been deprived of
the use of his money from the time he incurred his loss.
On that basis, interest is to run from that date
(2) That the defendant wrongfully withheld the plaintiffs
money. The emphasis here is on the defendant’s
wrongful withholding of the plaintiffs money. On that
basis, interest is to run from the date when the
defendant ought reasonably to have settled the
plaintiffs claim. This is rather punitive.

That it is clear from the above that whether or not interest is payable
prior to the date of the suit depends on the evidence available. That is

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why section 26(2) referred to that type of interest as ‘interest adjudged’.

That in the cases of wrongful dismissal, interest runs from the date of
dismissal. That in the case of Bold v Brough, Nicoleson [1963] 3
ALLER 849 it was held that in the case of unlawful dismissal, the
interest payable should flow from the date of dismissal till payment in
full.

In the case of Kizza Ssemberege vs. Motor Centre E.A Ltd HCCS No.
0369 of 2011 Justice Madrama stated that the power to award interest
is discretionary and is based on section 26 of the Civil Procedure Act
particularly section 26(2). That the question is what reasonable interest
is as far as commercial transaction is concerned? That in the case of
Riches v Westminister Bank Ltd [1974] 1 ALL ER 467 HL at page 472 Lord
Wright held that:

‘The essence of an interest is that it is a payment which becomes due

because the creditor has not had his money at the due date. It may be
regarded either as representing the profit he night have made if he had the
use of the money, or, conversely, the loss he suffered because he had not
that use. The general idea is that he is entitled to compensation for
deprivation.’’

That in assessing the rate of interest the court should be conscious of

the market rates for lenders and traders. Secondly in the case of Tate &
Lyle Food and Distribution Ltd v Greater London Council and another
[1981] 3 ALL ER 716 Forbes J recognised that an award of interest fulfils
the purpose of an award of damages because it falls under the principle
of restitution in integrum which means that the plaintiff ought to be
restored as nearly as possible to a position he would have been had not
breach by failure to pay him by the defendant. Forbes J held at page 722
that loss is assessed on the footing that it is the:

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‘..rate at which the plaintiff would have had to borrow money to supply the
place of that which was withheld.’’

That an award of interest is compensatory and where there is a claim for

money, it is not necessary for purposes of restoring the plaintiff under
the doctrine of restitution in integrum to also award damages.

In the case of ECTA (U) Ltd vs. Geraldine S.Namurimu& Josephine

Namukasa S.C.C.. 29/94 Supreme Court (Per Odoki Ag. DCJ), ‘Clearly
the Court has the discretion to award a reasonable interest. But a
distinction must be made between awards arising out of commercial
transactions which would normally attract a higher and awards of general
damages which are mainly compensatory. ..I think there is merit in the
complaint in the complaint regarding the award of interest of 25% on
general damages. The rate of interest is definitely too high and I would
reduce it to 8%....’’

Damages in Civil Cases.

The Halsbury’s Laws (4th edn) para 1202 define damages as the
pecuniary recompense given by process of law to a person for the
actionable wrong that another has done him. Lord Greene MR, in Hall
Brothers SS Co. Ltd V. Young [1939] 1 KB 748, at 756 (CA) thus;

‘‘Damages’ to an English lawyer imports this idea, that the sums payable
by way of damages are sums which fall to be paid by reason of some
breach of duty or obligation, whether that duty or obligation is imposed by
contract, by the general law, or legislation.’’

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Damages are, in their fundamental character, compensatory, not

punishment. Whether the matter complained of is a breach of contract or
tort, the primary function of damages is to place the plaintiff in a good
position, so far as money can do, as if the matter complained of had not
occurred.

As a general rule, the plaintiff must not receive more, nor should he
receive less than the appropriate measure of damages commensurate
with his or her material loss. However in certain circumstances, the
court may award more than the normal measure of damages, by taking
into account the defendant’s motives or conduct, and in this case the
damages may be ‘aggravated damages’ which are compensatory or
‘exemplary damages’ which are punitive.

There are well established rules and principles that govern award of
damages in civil cases. These rules and principles are firmly rooted in the
common law which is part of the law applicable in Uganda by virtue of
S.14 (2) of the Judicature Act, Cap. 13.

A statute may create a civil action for damages directly, and may also
define the criteria for the assessment of damages. By statute, common
law remedies may be excluded or limited, or a limit may be put on the
damages recoverable. Examples of such statutes in Uganda include the
Law Reform (Miscellaneous provisions) Act, Cap 79; Employment Act
2006 see sections 66(4), 67(4), 70(3), 78, 79, 87, 88, 89, 90, 92 and 96(4)
of the Act, National Environment Act Cap 153 see section 67 of the Act
which enables award of compensation on an environmental restoration
order; Occupational Safety and Health Act 2006 see section 102 which
enables the application of statutory penalty to the compensation of the

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victim of a statutory offense and Workers Compensation Act, 225. In this

context, damages may be referred to as statutory damages.

Classification of damages

There are different kinds of damages: general damages, special damages,

nominal damages, exemplary damages, aggravated damages and
liquidated damages.

a) General and special damages

General damages, according to Lord Macnagten in the often cited case of

Storms vs. Hutchinson [1905] AC 515 are such as the law will
presume to be the direct natural or probable consequence of the act
complained of.

Special damages, on the other hand, are such as the law will not infer
from the nature of the act. They do not follow in the ordinary course.
They are exception in their character, and, therefore, they must be
claimed specially and proved strictly. The law requires a plaintiff to give
warning in his pleadings of the items constituting his claim for special
damages with sufficient specificity in order that there may be no surprise
at the trial See Musoke vs. Departed Asian Custodian Board [1990-1994]
EA 219; Uganda Telecom v. Tanzanite Corporation [2005] EA 351;
Mutekanga v Equator Growers (U) Ltd [1995-1998] 2 EA 219; Uganda
Breweries Ltd v. Uganda Railways Corporations Supreme court Civil
Appeal No. 6 of 2001 (unreported).

In current usage, special damages relate to past pecuniary loss

calculable at the date of trial, whilst general damages relate to all other
items of damages whether pecuniary or non pecuniary. Thus in a

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personal injuries claim, special damages encompass past expenses and

loss of earnings, whilst general damages will include anticipated future
loss as well as damages for pain and suffering and loss of amenity. See
UCB vs. Deo Kigozi [2002] 1 EA 293.

b) Nominal damages

According to Maule J. in Beaumont V. Greathead (1846) 2 CB 494;

135 ER 1039, nominal damages, in fact, mean a sum of money that may
be spoken of, but that has no existence in point of quantity.

Lord Halsbury in Halsbury’s Laws (4th edn) para 1112 quote:

‘‘A plaintiff is entitled to ‘nominal damages’ where

a) His rights have been infringed, but has not in fact

sustained any actual damage from the infringement, or
he fails to prove that he has; or
b) Although he has sustained actual damage, the damage
arises not from the defendant’s wrongful act but from
the conduct of the plaintiff himself; or
c) The plaintiff is not concerned to raise the question of
actual loss, but brings his action simply with the view of
establishing his right.’’

c) Exemplary damages

The dictum of McCardie J. Butterworth V. Butterworth [1920] P

126 is helpful

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‘‘Simply put, the expression exemplary damages mean

damages for ‘example’s sake.’ These kinds of damages
are clearly punitive or exemplary in nature. They
represent a sum of money of a penal nature in addition
to the compensatory damages given for the pecuniary or
physical and mental suffering.’’

The award of exemplary damages was considered by the House of Lords

in the landmark case of Rookes vs. Barnard [1964] ALLER 367 at
410, 411. Lord Devlin stated that in his view there are only three
categories of cases in which exemplary damages are awarded, namely:

a) Where there has been oppressive, arbitrary, or unconstitutional

action by the servants of the government;
b) Where the defendant’s conduct has been calculated by him to
make a profit which may well exceed the compensation payable to
the plaintiff; or
c) Where some law for the time being in force authorizes the award of
exemplary damages.

Further, according to Lord Devlin in Rookes vs. Barnard above, when

considering the making of an award of exemplary damages, three matters
should be borne in mind;

a) The plaintiff cannot recover exemplary damages unless he or she is

the victim of punishable behavior;
b) The power to award exemplary damages should be used with
restraint, and
c) The means of the parties are material in the assessment of
exemplary damages.

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Exemplary damages should not be used to enrich the plaintiff, but to

punish the defendant and deter him from repeating his conduct. Court
can award exemplary damages in addition to general damages and
special damage, if any. However, an award of exemplary damages should
not be excessive. The punishment must not exceed what would be likely
to have been imposed in criminal proceedings, if the conduct were
criminal. All the circumstances of the case must be taken into account,
including the behavior of the plaintiff and whether the defendant had
been provoked.

d) Aggravated damages

There is a thin line between exemplary and aggravated damages.

Aggravated damages are ‘extra compensation’ to a plaintiff for injury to
his feelings and dignity caused by the manner in which the defendant
acted. Exemplary damages, on the other hand, are damages, which in
certain circumstances only, are allowed to punish a defendant for his
conduct in inflicting the harm complained of. The supreme court in the
landmark case of Fredrick J.K. Zaabwe vs. Orient Bank & Others
Supre Court Civil Appeal No. 4 of 2006 (unreported) stated as follows;

‘With regard to exemplary damages, the appellant seems to

equate them with aggravated damages. SPRY, V.P. explained
the difference succinctly in OBBO vs KISUMU COUNCIL [1971]
EA 91, at page 96; ‘‘The distinction is not always easy to see
and is to some extent an unreal one. It is well established that
when damages are at large and a court is making a general
award, it may take into account factors such as malice or
arrogance on the part of the defendant and this injury
suffered by the plaintiff, as, for example, by causing him

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humiliation or distress. Damages enhanced on account of such

aggravation are regarded as still being essentially
compensatory in nature. On the other hand, exemplary
damages are completely outside the field of compensation
and, although the benefit goes to the person who was
wronged, their object is entirely punitive.’’

For a finer distinction between exemplary damages and aggravated

damages, it is appropriate again to refer to the famous passage of Lord
Devlin in the landmark case of Rookes vs. Barnard, above:

‘English law recognized the awarding of exemplary damages, that is,

damages whose object was to punish or deter and which were distinct
from aggravating damages (whereby the motive and conduct of the
defendant aggravating the injury to the plaintiff would be taken into
account in assessing compensatory damages)…The fact that the injury to
the plaintiff has been aggravated by the malice or by the manner of doing
the injury, that is, the insolence or arrogance by which it is accompanied,
is not justification for an award of exemplary damages; aggravated
damages can do in this type of case what otherwise could be done by
exemplary damages.’’

Aggravated damages exist in an act or intention of the wrong doer. In

every case considered appropriate for the award of aggravated damages,
the court should always point out what it considers to be ‘aggravating
circumstances’ in order to justify the basis of its award. Common
examples of aggravating circumstances from reported cases include;
malice, ill will, or persistence in a falsehood exhibited by the defendant to
the detriment of the plaintiff. Consider case of publisher who

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unsuccessfully attempts to plead and prove justification in answer to a

defamation claim arising out of a libelous article.

In the case of Uganda Revenue Authority v WanumeDavid

Katamirike (CIVIL APPEAL NO.43 OF 2010) it was stated that
Damages is compensation in money terms through a process of law for a
loss or injury sustained by the plaintiff at the instance of the defendant.
That general damages are awardable by court at large and after due
court assessment. They are compensatory in nature in that they should
offer some satisfaction to the injured plaintiff. Aggravated damages are,
like general damages, compensatory in nature, but they are enhanced as
damages because of the aggravating conduct of the defendant. They
reflect the exceptional harm done to the plaintiff by reason of the
defendant’s actions/omissions. That both general and aggravated
damages focus on the conduct of the defendant in causing the injury to
the plaintiff that is being compensated for. Punitive or exemplary
damages are an exception to the rule that damages generally are to
compensate the injured person. These are awardable to punish, deter,
express outrage of court at the defendant’s egregious, highhanded,
malicious, vindictive, oppressive and/or malicious conduct. They are
also awardable for the improper interference by public officials with the
rights of ordinary subjects. Unlike general and aggravated damages,
punitive damages focus on the defendant’s misconduct and not the
injury or loss suffered by the plaintiff. They are in the nature of a fine to
appease the victim and discourage revenge and to warn society that
similar conduct will always be an affront to society’s and also the court’s
sense of decency. They may also be awarded to prevent unjust
enrichment. They are awardable with restraint and in exceptional cases,
because punishment, ought, as much as possible, to be confined to
criminal law and not the civil law of tort and contract.

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e) Liquidated damages

Liquidated damages are unique to claims for breach of contract. The

parties may agree by contract that a particular sum is payable on the
default of one of them, and if the agreement is not obnoxious as a
‘penalty’ such a sum constitutes ‘liquidated damages’ and is payable by
the party in default.

In all cases where the parties by their contract agreed a sum payable on
the default of one of them, it is always a question of law for the court to
determine whether or not such a sum should be paid by the party in
default. If this sum is a genuine pre-estimate of the loss which is likely to
flow from the breach, then it represents damages, called ‘liquidated
damages’ and it is recoverable without the necessity of proving the actual
loss suffered. If however, the stipulation is not a genuine pre-estimate of
the loss but it is in the nature of a ‘penalty’ intended to secure
performance of the contract then, it is recoverable, and the plaintiff must
prove what damages he can.

COUNSEQUENCES OF JUDGEMENTS AND RES JUDICATA

Section 7 CPA provides that no court shall try any suit or issue in which
the matter directly and substantially in issue in a former suit between
the same parties, or between parties whom they or any of them claim,
litigating under the same title, in a court competent to try the
subsequent suitor the suit in which the issue has been subsequently
raised, and has been heard and finally decided by the court.

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Explanation 1- The expression “former suit” shall denote a suit in which

has been decided prior to the suit in question whether or not it was
instituted prior to it.

Explanation 2-For the purposes of this section, the competence of the

court shall be determined irrespective of any provision as to the right of
appeal from the decision of that court.

Explanation 3-the matter above referred to must in the former suit have
been alleged by one party and either denied or admitted, expressly of
impliedly, by the other.

Explanation 4- any matter which might and ought to have been made a
ground of defence or attack in the former suit shall be deemed to have
been a matter directly and substantially in issue in that suit.

Explanation 5-any relief claimed in the suit, which is not expressly

granted by the decree, shall for the purposes of this section be deemed to
have been refused.

Explanation 6-where parties litigate bona fide in respect of a public right

or aprivate right claimed in common for themselves and others, all
persons interested in that right shall, for the purposes of this section be
deemed to claim under the persons so litigating.

This section embodies the doctrine of res judicata or the rule of

inclusiveness of judgement, as to the points decided, in every subsequent
suit between the same parties. It is based partly on the maxim of Roman
jurisprudence Interest reipublica utsit finish litium-it concerns the
state that there be an end to law suits and partly on the maxim Nemo
debit bis vexari pro una et eadem causa-no man should be vexed twice
over for the same cause.

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The following conditions are necessary

1. ) the matter directly and substantially in issue in the subsequent

suit must have been directly and substantially in issue in the
former suit
2. ) the former suit must have been between the same parties or
between the same parties or between parties under whom they or
any of them claimed.
3. ) such parties must have been litigating under the same title in the
former suit
4. ) the court trying the former suit must have been a court
competent to try the subsequent suit in which such issue is
subsequently raised.
5. ) such matter in issue in the subsequent suit must have been
heard and finally decided in the first suit.

The above prepositions have been summarised by the court of Appeal

in the case of Lt.David Kabareebe v Maj Prossy Nalweyiso CACA
No. 34/2003; “to give effect to a plea of res judicata, the matter directly
and subsequently in issue in the suit must have been heard and finally
decided in the former suit. It simply means nothing more than that a
person shall not be heard to say the same thing over in the successive
litigation.

In the case of Maniraguha v Nkundiye CACA No. 23/2005 held that

section 7 CPA stipulates as follows “ No court shall try any suit or issue
in which the matter directly or substantially in issue has been directly
and substantially in issue in the former suit between the same parties,
or between parties under whom they or any of them claim, litigating
under the same title, in a court competent to try the subsequent suitor
the suit in which the issue has been subsequently raised, and has been

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heard and finally decided by that court.” That this provision of the law
cannot be waived by parties. It is a law that prohibits a court from
trying matters that had already been finally determined. That the
court of Appeal of Uganda in Ponsino Semakula vs Susane Magala
& Ors, 1993 KALR 213 had this to say on the doctrine of res
judicata, “ the doctrine of res judicata, embodied in s.7 CPA, is a
fundamental doctrine of all courts that there mmust be an end of
litigation. The spirit of the doctrine succinctly expressed in the well-
known maxim; ‘nemo debit bis vexari pro una et aada causa’(No one
should be vexed twice for the same cause) justice requires that every
matter should be once fairly tried and having been tried once, all
litigations about it should be once fairly tried and having been tried
once, all litigations about it should be concluded forever between the
parties. The test whether or not a suit barred by res judicata appears to
be that the plaintiff in the second suit trying to bring before court in
another way and in the form of a new cause of action, a transaction
which has already put before a court of competent jurisdiction in
earlierproceedings and which has been adjudicated upon. If so, the
plea of res-judicata applied not only to points upon which the first court
was actually required to adjudicate but to every point which properly
belongs to the subject of litigation and which the parties, exercising
reasonable diligence might have brought forward at the time.’ That res
judicata is a plea of jurisdiction, in that section 7 CPAbars any court
from trying a suit or even an issue that is res judicata.it would be
correct therefore to state that courts have no jurisdiction to try a
matter that is res judicata. That the decision in Ponsino Semakula vs
Susane Magala and Ors,( supra) is to the effect that the court before
which the issue for res judicata is raised must peruse the judgement
of the court in the first suitand ascertain that the judgement

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exhaustivelydealt with the issues raised in that case and if possiblethe

court should peruse the whole record so that it gets the opportunity to
appraise all matters raised in the earlier suitin order to decide
whether the plea of res judicata succeeds or not. That a court before
which a plea of res judicata is raised may rely on judgement of the
first court if it is produced without objection. That the plea of res
judicata can only be supported by production of a valid judgement in
the case, the plea of res judicata could therefore no be seen sustained
in the absence of a valid judgement, or decree or pleadings and
proceedings of the first court.no basis upon which a plea of res
judicata could be sustained.

In the case of Anifa Kwooya vs Attorney General & Anor

Const.Pet.No.42/2011 the issue was whether the matter of
petitioners academic qualifications upon which the certificate of
equivalent was recalled is res judicata. It was held that the term res
judicata is defined and explained in section 7 of the civil procedure
Act. That the meaning of res judicata is also expounded in Black’s
Law Dictionary eighth edition as follows;

1. An issue that has been definitely settled by judicial decision

2. An affidavit defence barring the same parties from litigating a
second law suit on the transactions and that could have been
but was not raised in the first suit.

That the author of the dictionary explains that res judicata has three
essential elements;

I. An earlier decision on the same issue

II. Final judgement on the merits

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III. The involvement of the same parties or parties in privacy

with the original parties

Court held that the second respondent has no right to investigate or

recall the academic qualifications of the petitioner now when the matter
was settled by the highest court of this country in which it could have
voiced its concerns but chose not to do so, that the first respondent had
a similar right but did not seek to exercise it. The matter is now res
judicata and the respondent cannot know resurrect it

In the case of Charles Mayambale vs Stanbic Bank SSC Reference

No.69/2008 held that under section 7 CPA, the learned registrar rightly
concluded that the matter in issue Civil Application No.87/2007 had
been the subject of the earlier application and was accordingly res
judicata.

In the case of GW Wanendeya vs Stanbic Bank Ltd HCCS No.

486/2005 justice Engonda Ntende held that section 7 CPA provides for
res judicata. That the court of appeal for East Africa in Kamunye vs
Pioneer Assurance Ltd [1971] E.A 263 considered the foregoing
provision Law, Ag. V.P sated, ‘the test whether or not a suit is time
barred by res judicata seems to me to be – Is the plaintiff in the second
suit trying to bring before court, in another way and in the form of anew
cause of action, a transaction which has already put before court of
competent jurisdiction in earlier proceedings and which has been
adjudicated upon. If so, the plea of res judicata applies not only to points
upon which the first court was actually required to adjudicate but to
every point which properly belonged to the subject of litigation and which
the parties, exercising reasonable diligence, might have been brought
forward at the time Greenhalgh v Mallard [1947] ALL E.R 222 the
subject matter in the subsequent suitmust be covered by the previous

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suit, for res judicata to apply Jadva Karsan v Harnam Singh

Bhogal(1953) 20 E.A.C.A 74 that in the instant case the decision in
Civil suit No.437/2001 by Arach Amoko J is final decision that disposed
of the suit wholly, and amounted to a decree. In such circumstances it is
sufficient to raise a bar of res judicata as it wholly disposed of the
matters in issue in that suit.

In the case of Mukiibi vs Elitek technologies International Ltd & 4

Ors HCCS No. 227/2010 justice Bashaija held that the doctrine of res
judicata is encapsulated under section 7 CPA. That clearly for the matter
to be regarded as res judicata, it must be directly and substantially in
issue in the subsequent suit and must have been directly in issue in the
former suit. See Karsh v Uganda Transport Co. [1967] E.A 774. The
former suit must have been between the same parties under whom they
or any of them claim. See Gokaldas Lximidas Tanna v Sister Rose
Muyinza [1990-1991] KALR 21the court tying a former suit must have
been a court competent to try a subsequent suit or in which such issue
is subsequently raised. See Islaila Dabule v wildon Osuna Otwany (1991)
KALR 23Finally matter in issue in the subsequent suit must have been
heard and decided in the first suit. That applying the test of facts of the
instant case, it is evident that the plaintiff was not a party to Mengo
Chief Magistrates Court Civil Suit No. 1401.2007.note the same issue
arose and the case was not finally decided between the same parties.
Even on the bare minimum of the requirements of the doctrine, the case
fails the test of res judicata.

Pleading res judicata

The defence of res judicata cannot be raised, unless it is specifically

pleaded in the defence. The party pleading it must show from the records
that the found his/her favour in another proceeding and must produce

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all the relevant documents for that purpose. A plea of res judicata must
be raised by the pleadings. See Lt. Davide Kabareebe v Maj Prossy
Nalweyiso (supra).

The party who is sought to be affected by the bar of res judicata should
have notice of the pointthat is likely to be decided against him/her and
should have an opportunity of pitting forward his/her contentions
against such a plea. A suit cannot be said to be barred by res judicata on
the face of the pleadings unless all the conditions requisite are stated in
the pleading itself. See Obura v Kooma [2001] E.A 177. It is not sufficient
merely to plead the defence of res judicata without evidence to sustain it.
See Farook Aziz (administrator of Salima Kabasingo vs Abdalla Abdu
Maruku SCCA No. 4/2002.

In the case of Mubangizi Julius vs Uganda Baati SCCA No.1/2011

was held that the supreme courts that occasion to consider and state the
law on res judicata in Civil Appeal No. 4/2002 Farook Aziz ( administrator
of Salima Kabasingo vs Abdalla Abdu Maruku Chief Justice Odoki, as he
then was held, ‘As Crabble JA said in the case of Mandavia vs Singh
(9165) E.A 118 AT 121, ‘ Res judicata on the one hand is a matter of
pleadings and can be raised only at the trial. The principle underlying
the doctrine of res judicata are ‘Interest reipublicae ut sit firus litium’
and Nemo Debit bin rexari pro eadem causa’ the court before which
the plea is raised is not deprived of jurisdiction to hear the case, the
court only declines to exercises its jurisdiction to allowthe parties to
litigate the matter when it is satisfied that the same parties are suing in
the same capacity and that the issue before it is the same as that alleged
to have been the subject of adjudication in previous proceedings.’ That
the supreme court again on res judicata in Civil Appeal No. 17/2002, Fr.
Narsensio Begumisa and Others vs Eric Tibegaba held that,-the

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defence of res judicata is abar to a plaintiff whose claim was previously

adjudicated upon by court of competent jurisdiction in a suit with the
same defendant or with a person through whom the defendant claims’
‘that in the instant case, the dispute between the two parties had not yet
been duly adjudicated upon. An order for the matter to proceed exparte
had been given but the main suit was still pending. The presiding judge
determined that it was in the interest of justice to set aside for the matter
to proceed exparte.

A mere opinion of the court on the matter not necessary for the decision
of the case and not arising out of the issues before it is an orbiter dictum
and cannot be said to be decision on an issue, and is therefore not res
judicata

In the case of Ponsino Semakula v Susane Magala and Others [1979]

HCB 89 the court set out the following as the test for determining
whether a case is barred by the principle of res judicata.’ In determining
whether or not a suit is barred by res judicata, the test is whether the
plaintiff in the second suit is trying to bring before the court in a another
way in the form of a new cause of action, a transaction which has already
been presented before a court of competent jurisdiction in earlier
proceedings which have been adjudicated upon.’

Final judgements

Final judgements, which will give rise to the application of the doctrine of
res judicata, are divided into two classes, namely; judgement in rem and
judgement in person am.

A judgement in rem may be defined as ajudgement of court of competent

jurisdiction determining the status of a person or thing, or disposition of
a thing, as distinct from the particular interest in it a party to litigation

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A judgement in person am or inter parties are those which determine the

rights of parties as between one another to the subject matter in dispute.

Judgements by Consent or Default.

A judgement which would be final if it resultedfrom judicial decision after

a contest is not prevented from being so by the fact that it was obtained
by consent or default, or as that result of admissions, provided the party
against whom it is up was under no disability.

Decision on preliminary or technical points

When a prior suit has been dismissed on some technical ground without
going into the merits of the questions raised, there can be no decision on
such questions and therefore no res judicata. See Isaac Busulwa v
Ibrahim kakinda [1979] HCB179.

Interlocutory Orders

Interlocutory applications in a suit cannot themselves be regarded as

suits for the purposes of section 7 and orders thereon cannot, at a
subsequent stage of the same suit, be regarded as decisions in former
suit

Whether compensation in Criminal case id Res Judicata in a civil suit.

A criminal court may order compensation for material loss or personal

injury S.197 MCA & S.126 TIA. This is not abar to 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 the criminal law and civil law in motion to recover
damages. See Esso Standard (u) Ltd vs Mike Nabudere HCCS No.
594/1990 (1992) KALR VI 40.

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EXECUTION AND STAY OF EXECUTION

In the case of Unique Holdings vs Business Skills Trust Ltd HCMA No.
402 of 2012 Justice Christopher Madrama cited Words and Phrases
Legally Defined volume 2 and 3rd edition London and Butterworth’s 1989
at pagae 195-196 for definition of the word ‘‘execution’’ where it is
written that: ‘‘in its widest sense signifies the enforcement of or giving
effect to the judgement or orders of courts of justice’’. Furthermore
reference was made to the holding of Denning MR on the meaning of
‘‘execution’’ and completion of execution in the case of Re Overseas
Aviation Engineering (GB) Ltd [1962] 3 All ER 12 at page 16 under
325:

‘‘The word ‘execution’ is not defined in the Act. It is, of course, a word
familiar to lawyers. ‘‘Execution’’ means, quite simply, the process for
enforcing or giving effect to the judgement of the court: and it is ‘completed’
when the judgement creditor gets the money or other thing awarded to him
by the judgement. That is the meaning is seen by reference to that
valuable old book ‘Termes de la Ley’’, where it is said:

‘Execution is, where judgement is given in any action, that the plaintiff
shall recover the land, debt or damages, as the case is; and when any writ
is awarded to put him in possession, or to do any other thing whereby the
Plaintiff should the better be satisfied his debt or damages, that is called a
writ of execution; and when he hath the possession of the land, or is paid
the debt or damages, or hath the body of the Defendant awarded to
prison, then he hath execution.’’

Execution is the process of realizing the fruits of a judgement by

enforcing the decree against the unsuccessful party through one or more
of the various modes of execution as by law prescribed. Having obtained

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judgement, the successful party may need to consider how such

judgement can be enforced. If the judgement was against reputable
institutions like an insurance company, or bank, it will almost invariably
satisfy the judgement promptly and enforcement will not be necessary.
However, in other cases enforcement will be necessary where there is
failure to obey the order of court.

Section 38 of Civil Procedure Act provides for execution and powers of

the court to enforce execution. Section 38 provides that the subject to
such conditions and limitations as may be prescribed, the courts may,
on the application of the decree holder, order execution of the decree;

a) By delivery of any property specifically decreed

b) By attachment and sale, or by sale without attachment, of any
property
c) By attachment of debts
d) By arrest and detention in prison of any person
e) By appointing a receiver, or
f) In such other manner as the nature of the relief granted may
require.

It is the decree holder to select the appropriate means of execution of his

decree, subject to the discretion of the court. There is nothing to prevent
successful party from applying for several modes of execution (see O.22 r
27 CPR). However, the court may in its discretion, refuse execution at the
time against the person and property of the judgement debtor (O.22 r 18
CPR)

The parties to execution.

The person (judgement creditor) who is named or ascertained in a

judgement or order is entitled to the benefit therefore and may issue

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execution against the person called the judgement debtor (who is subject
to the obligation imposed on him/her thereby). Execution cannot issue
against a non-party to a suit. In the case of Rajimpex vs National
TextilesBoard& Anor HCCS No. 1033/1986 held that execution
cannot issue against anon party to a suit

However, where a person has been liable as surety, then the decree or
order may be executed against him/her to the extent to which he/she
has rendered himself/herself personally liable-section 93 CPA. In case a
judgement debtor dies before the decree has been satisfied the holder of
the decree may apply to court which passed it to execute the same
against representative of such deceased or against such person who has
intermeddled with estate of such deceased-Section 39 CPA.

Procedure of execution

It is the duty of the decree holder desirous of having the same executed
to apply to court for execution. This in practice should come after a polite
request by way of service of a demand notice accompanied by a decree to
be satisfied, has been ignored by the debtor. Section 30 CPA Court that
passed the decree or the court to which it is sent for execution can
execute the decree. O.22 r 7 CPR provides that where a holder of a decree
desires to execute it, he shall apply to court which passed the decree or
where the decree is sent to another court for execution then so such a
court.

Also consider High Court Administrative Circular No. 4/2011 under

which the execution division was created for purposes of execution
of decrees. The court has jurisdiction to determine all the
questions relating to the execution, discharge and satisfaction of
the decree.

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 Application can be made orally for decrees for payment of money only
provided it is made upon passing the decree. This method is
appropriate when executing a decree passed under O. 36 CPR where
it is intended that the judgement debtor be arrested and such debtor
is still within the court’s precints-O.22 r 8(1) CPR.
 Formal application under O. 22 r 8 (2) CPR. See Form 5, Appendix D
to the CPR, or Chamber summons in case of Garnishee proceedings
and Third Party Notice. Before execution, a decree must be executed,
signed and issued. Every application for execution of a decree shall be
in writing, signed and verified by the applicant or his advocate and
shall be in tabular form containing the suit number, parties, date of
decree where appeal is preferred, whether any party payment effected,
whether there is a previous application, amount due with interest if
any or other reliefs granted, amount of costs, name of person against
whom execution is sought, the mode in which the assistance of court
is required- O.22 r 8(2). An application must be accompanied with a
certified a copy of a decree.-O.22 r 8(3)

However O.22 r 19 provides that where an application for execution is

made (a) more than one year after the date of the decree; or (b) against
the legal representative of a party to the decree, the court executing the
decree shall a notice to the person against whom execution is applied for
requiring him/her to show cause, on a date to be fixed, why the decree
shall not be executed against him/her; except that no such notice shall
be necessary in consequence of more than one year having elapsed
between the date of the decree and the application for the execution if the
application is made within one year from the date of the last order
against the party whom the execution is applied for, made on any
previous application for execution, or in consequence of the application
being made against the legal representative of the judgement debtor, if

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upon a previous application for execution against the same person the
court has ordered execution to issue against him/her.

In the case of Peter Gukiina vs Paul Kawanga Semogerere & Ors

[1991] HCB 72 held that it was mandatory under O.19 r 19 (1) (c) now
(22 r 1 (a) that where the application for execution is made after
expiration of more than one year, the court executing the decree must
issue a notice to the person against whom execution is applied requiring
him show cause why execution should not issue.

There is time limit for execution. S.35 CPA executions is barred in

certain cases under which no order of execution of the same decree shall
be made upon any fresh application presented after the expiration of 12
yrs from the date of the decree sought to be executed. Also section 3(3)
of the Limitation Act prohibits an action brought upon any judgment
after the expiration of twelve years from the date on which the judgment
became enforceable.

In the case of Green Pastures Ltd vs. Cooperative Bank (In

liquidation) HCMA No. 172 of 2015 Justice Madrama stated that there
were two provisions of the law to be considered. The first is the
Limitation Act section 3(3) which deals with limitations with regard to
actions brought upon any judgment after expiration of 12 years from the
date on which the judgment became enforceable as well as the question
of arrears of interest in respect of any judgment. The second provision is
section 35 of the Civil Procedure Act which bars enforcement o decree
after expiration of 12 years. That under section 3(3) of the Limitation Act,
an action or proceeding inclusive of applications for execution upon any
judgment is barred after expiration of 12 years from the date on which

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the judgment became enforceable. The second aspect is that no arrears

of interest in respect of any judgment debt shall be recovered after
expiration of six years from the date on which the interest became due.
That if one went by the provisions of section 35 of the Civil Procedure
Act, the same results would be achieved. That section 35 of the civil
procedure Act is to be read together with the Limitation Act section 3(3).

Court Bailiff

The Judicature Court Bailiff rules SI 13-6 r 4 provide that execution

proceedings shall be conducted by a person to be designated a court
bailiff who shall hold a license issued by an appointing authority under
Rules and a letter of appointment in the form specified in the First
Schedule to the Rules. See r 11-19 of SI 13-16.

The court acts through bailiffs and when they are exercising their
functions, they are protected under the Judicature Act S.46. In the case
of Kabwengure vs Kanjabi 1974 HCB89, the respondent got judgement
which was granted. Counsel applied to quash the execution in exercise of
courts power of review. Court found that the applicant could not sue any
of the officers or persons who carried out the execution as they were
protected by the Judicature Act. That they were acting pursuance of a
decree in the court of law which had to be given full force and credit
unless suspended or set aside by court which issued it or higher court.

In the case of Kiiza Walusimbi & 2 Ors vs. Senyimba & 3 Ors HCCS
No. 248 of 2011 the issue was whether the suit against the Court bailiff
is barred by law. Justice Murangira stated the Court bailiff enjoys
immunity from civil proceedings against him arising out of acts in
execution of orders of court pursuant to section 46(1) and (2) of the
Judicature Act. That the effect of the provision is that the court bailiff

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has immunity for his acts carried out pursuant to a decree and warrant
of attachment that was issued. That in Joyce Kinyankwanzi vs.
Hezekia K. Ndugga & Anor [1974] HCB Justice Allen (as he was then)
held that: ‘…a court broker, when in the process of attaching and selling
property and lawfully acting upon the lawful warrant or order of the court
was an officer of court and consequently he was protected by section 46(2)
of the Judicature Act 1967, which was applicable in this case. Therefore
an order would be made that the plaint be rejected as disclosing no cause
of action against the defendants with costs to the defendants’’. That the
above decision of Allen J was re-affirmed by Justice Musoke-Kibuuka in
the case of Regina Bagada vs The Cooperative Bank [200] KALR 737
whereby he held that:-‘A court broker is not expected to look into the
validity of a courts’ order or warrant. The bailiff is only expected to see
that the order or warrant is signed by the Judge or magistrate or registrar
and that it bears the seal of court. Once the bailiff is executing a warrant
of court his acts cannot be called unlawful unless the broker attached
property in excess of the warrant or outside the warrant, which would turn
the broker into a trespasser. Any action to contest the propriety of
execution must be by notice of motion to the court that issued the judgment
and order of execution as per the provision of s. 35 civil procedure act. A
separate suit as it was done here is untenable.’’ That Ssekandi, J in the
case of Kabwengura vs Charles Kanjabi [1977] HCB 89, held that:-
‘The appellant could not sue any of the officers or persons present who
carried out the execution of the decree as these are protected under section
46 of the Judicature Act. They were acting in pursuant of a decree of a
court of law which had been given full faith and credit unless suspended
or set aside by the court that issued it or any higher court. All questions
relating to execution including discharging the execution of the decree have
to be determined by the court executing the decree and not by a separate

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suit (s.35(1) of the civil procedure Act) and therefore the appeal against the
dismissal of the suit was dismissed with costs.’’ That the current suit is
barred by the provisions of section 34(1) civil procedure Act. That
whereas the above provision refers to parties the provision has been
interpreted to mean any person who wishes to contest the process of
attachment of his / her properties must proceed under the provisions of
section 34(1) civil procedure Act by way of an inquiry by notice of motion
in the court which issued the execution and not commence a fresh suit
as the plaintiffs did in the current suit. That the supreme court of
Uganda in Francis Micah vs. Nuwa Walakira SCCA 24 OF 1994
reported [1995] KALR 360 was held: ‘Section 35(1) (now section 34(1)
civil procedure Act requires that all matters arising to execution be
determined by the court executing the decree and not by a separate suit.
The case of Hannington Wasswa & Anor vs Maria Onyango Ochola & 3
Others SCCA 22/93 which stated that the court bailiff should be sued
separately, should be distinguished from s. 35 (1) CPA because the case
of Wasswa dealt with a prayer for damages for fraud against the court
bailiff. The application complaining of excess attachment was rightfully
under section 35(1) in this instant case by motion.’’ That the above
decision was followed by Musoke –Kibuuka J in Regina Bagad vs. The
Cooperative Bank Ltd [2000] KALR 737. That accordingly, the current
case is not sustainable in light of the provisions of section 34(1) CPA. The
plaintiffs ought to have challenged the execution by way of Miscellaneous
Application by Notice of Motion in the court that carried out the
execution of the decree and sale of the suit property and under the suit
in which execution was levied. The rationale of this is not difficult to
discern, how can this honorable court ascertain and discern want went
on during the execution when it never executed those orders? Secondly
the interest of justice demand that there should be an end to litigation

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and a successful party should be able to enjoy the fruits of his or her and
its judgment.

A court broker loses his immunity only if he acts unlawfully.

In the case of Semakula vs Musoke [1981] HCB 46 court found that

protection of the court brokers under the Judicature Act only applies in
respect of lawful act done. That there was no such protection were officer
did unlawful acts. That under the Judicature Act it is possible to sue
brokers for unlawful warrant in addition to their liability to executing an
unlawful warrant. That a court broker has a duty to ensure that he is
executing a lawful order of court.

In the case of Famous cycle Agency & Ors vs M.R.Karia & Anor HCCS
No. 88/1992 held that a registrar has powers of supervision over court
bailiffs may legitimately intervene in execution proceedings.

Procedural steps for effecting particular execution

1. Arrest and detention

A judgement debtor may be arrested in execution of a decree. S.40 CPA.

Execution may come by way of arrest in civil prison. Procedurally it goes
by creditor applying to court to show cause under O.22 r 34 by
judgement debtor. This notice requires a debtor to show cause and give
reasons why he should not be detained civil prison. In the case of Hajj
Hassa Bin Abdul vs Ramathan Rajab 1987 HCB 36 court found that
before a judgement debtor is imprisoned he should first be served with
the notice to appear and show cause why he should not be imprisoned
under O.22 r 34. Court found that a civil warrant of arrest is designed for

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a civil debtor how much he has to pay in order to avoid being sent to
prison.

O. 22 r 36 judgement creditor is obliged to pay for the subsistence of

judgement debtor in prison at such a rate as court shall fix for its
subsistence.

Every person detained in prison in execution of a decree shall not be

detained for a period exceeding six months S.42 (1) CPA. However, the
detention of the judgement debtor doesn’t affect the liability to pay the
decretal sumS.42 (2) CPA. Where the judgement debtor is released from
prison, shall not by reason of his release be discharged from his debt,
but shall not be re-arrested under the decree in execution of which he
was detained in prison. S.42 (2) CPA.

Examination of Judgement Debtor

Where a decree is for the payment of money, the decree holder may apply
for an order that the judgement debtor or in case of corporation, any
officer of corporation or any other person be examined as to his means
O.22 r 38 CPR. The officer conducting the examination must take down a
written statement made by the debtor and the debtor must answer
questions fairly directed to ascertain his/her financial circumstances,
including information as to bank accounts, policy numbers.

2. Attachment and sale.

This involves actual seizure of property from the judgement debtor which
is taken into the hands of the court and applied in the manner provided
in the order of court to satisfy judgement of court. It is ordinarily followed
by sale.

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Section 38(b) Court can order execution of decree by attachment and

sale. Attachment must be done during day i.e. no person shall enter any
dwelling house after sunset and before sunrise S.45 (1) CPA. Reasonable
force may also be used to gain access if the judgement debtor attempts to
deny or delay attachment s.45 (2) CPA.

Immediately after seizure, the court bailiff must apply to proceed to sell
them. The sale must be held within a reasonable time and be made for
the best price reasonably obtained.

a) Movable property (other than agricultural produce)

The general rule is that all movable property of the debtor liable for
attachment must be sufficiently identified and described both in the
application and warrant of attachment.

S.44 CPA provides for properties liable for attachment and sale in
execution of decree, namely, lands, houses or other buildings, goods,
money, bank notes, cheques, bills of exchange, promissory notes,
Government securities, bonds or other securities for money, bets, shares
in a corporation and, except as hereafter mentioned, all other saleable
property , movable or immovable, belonging to the judgement debtor, or
over which or the profits of which he/she has a disposing power which
he/she may exercise for his or her own benefit, whether the property be
held in the name of the judgement debtor or by another person in trust
for him/her or on his/her behalf. The section further provides for
property not liable for attachment to include;

a) the necessary wearing apparel, cooking vessels, beds and bedding

of the judgement debtor and of his wife and children and such
personal ornaments as in the accordance with the religious usage
cannot be parted with by any woman;

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b) tools of artisans and where the judgement debtor is an

agriculturalist, such implements of husbandry and such livestock
and agricultural produce not exceeding in value five hundred
shillings as may, in the opinion of the court, be necessary to
enable him/her to earn his/her livelihood;
c) books of accounts;
d) a mere right to sue for damages;
e) any right to personal service;
f) stipends and gratuities allowed to pensioners of the Government,
or payable out of any service family pension fund as the minister
may, by statutory instrument, specify in his behalf and political
pensions
g) the salary of any public officer, servant of a railway company or
local authority, or any person privately employed to the extent of
I. the whole of the salary, where the salary does not exceed
forty shillings monthly;
II. forty shillings monthly, where the salary exceeds forty
shillings and does not exceed eighty shillings monthly; and
III. one moiety of the salary in any other case;
h) an expectancy of succession by survivorship or other merely
contingent or possible right or interest;
i) a right of future maintenance;
j) any fund or allowance declared by law to be exempt from
attachment or sale in execution of a decree, shall not be liable to
attachment and sale

Explanation-

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1. The particulars mentioned in paragraphs (f), (g), and (j) are exempt
from attachment and sale whether before or after they are actually
payable.
2. Subject to subsection (1) (g) in the case of salary of any public
officer, servant of a railway company or local authority or any
person privately employed, the attachment shall be made by a
written order requiring the officer or person whose duty it is to
disburse the salary to withhold every month such portion as the
court may direct until further orders of the court.
3. Nothing in this section shall be deemed to affect the provisions of
the Uganda Peoples Defence Forces Act or of any similar Act

In the case of Fenekasi Semakula v James & Fred Musoke [1981]

HCB 46, this was an action for damages in trespass and conversion
brought by the plaintiff who was the defendant into a civil suit brought
by the third defendant. The 1st and 2nddefendant’s purported to be court
brokers who executed an attachment warrant against the plaintiff in
connection with the suit. The defendant in the suit applied for execution
in the magistrate’s court and they then went ahead and pulled the
plaintiffs house to pieces by removing the entire roof of iron sheets and
all wooden window flames and doors leaving only the mud wattle walls.
In a suit for conversion courts found that with regard to the warrant that
was executed, there were wrong things with the warrant. Court found
that movable property attachable would include furniture, curtains,
carpets, radios, T.V sets and other households and personal possessions
and would quiet definitely no include parts of fabric of a house. Court
found that iron sheets forming the roof, window flames, and doors were
part of the house itself and would only be attached if the whole house in
its complete state was to be attached and that would constitute
immovable property. Court observed that there can never be any

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justification for tearing a person’s house to pieces as done in this case.

That if the movable property is to be attached, the house should be left in
the whole condition for the judgement debtor to continue leaving in and
if immovable property such as house is to be attached then the whole
building should be sold as one unit.

The goods of the judgement debtor may be taken in execution by seizure

and attachment O.22 r 28 (1), O.22 r 40 CPR. The decree holder shall
remain with the attached property until such a time when the judgement
debtor has obeyed the decree. Upon refusal the decree holder shall apply
to have attached property sold.

Where the judgement debtors has obeyed the decree and paid all cost,
which is bound to pay, after the goods seized, the court bailiff may not
proceed to sell the goods, and where at the end of the six months from
the date of attachment, no application to have the property sold or if
made, has been refused, the attachment ceases 0.22 r 28(3) CPR.

Where property subject to the attachment is highly perishable, or

keeping of the same in custody is costly and devoid of business sense or
it is livestock, the bailiff shall seek prompt leave of court to sanction its
speedy disposal-O.22 r 40 (2) CPR.

b) Agricultural produce (O.22 r 41 & 42 CPR)

The applicant is duty bound to notify court under his / her application
the likely time, when the growing crop will yield into maturity (harvesting
period). This will enable court to make an order prohibiting the

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judgement debtor against removal of the crop pending execution of the

decree (O.22 r 42(4) CPR)

Attachment is effected by affixing a copy of the warrant of attachment at

the garden where the produce is growing or at the heap/ store where the
same has been gathered-O.22 r 41CPR. Upon maturity / harvesting
these can be sold like any other movable property.

c) Immoveable property (O.22 r. 75 CPR)

The general rule is that immovable property must be sufficiently

identified and described i.e by boundaries, or Block, Plot No. Place or
location, and existing developments thereon.

Attachment is made by serving an attachment warrant expressing an

order prohibiting the judgement debtor from transferring or changing the
property in any way and ordering such debtor to deliver up to court the
duplicate certificate of title to the property.

A copy of the attachment is fixed at a conspicuous place on any part of

the property

The intended sale shall be advertised capturing the sufficient details as

to description of the property and extent of existing developments
thereon. The notice shall contain the conditions of sale-O22 r.63 (3)
CPR).

The sale shall be conducted after expiry of 30 days notice-O.22 r 64 CPR

On the auction date, a purchaser so declared can pay instalments

provided in the initial deposit is not less than 25% of the purchase value,
but shall complete the balance within 15 days (O.22 r 77 (1) CPR)

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On receipt of the full balance the sale becomes absolute and the bailiff
shall execute transfer instruments in case of registered land, and
immediately file a return to court. The proceeds shall be handled in
accordance with O.22 r 1 & 2 CPR

The purchaser shall present such transfer instruments for registration of

his or her interest together with a duplicate certificate of title, certified
copy of the decree, warrant of attachment and sale agreement –S. 135
RTA

3. Attachment of Debts/ Garnishment S.38(C) CPA, & O.23 r

1CPR.

Money in possession of other party not a party to a suit in which the

judgement debtor applies to court exparte for an order directing that the
person not a party to suit who may be in possession of money on
account of a judgement creditor. In those situations the court will make
an order against the garnishee to be summoned to establish that actual
amount. On court being satisfied that the money exists will order the
garnishee to deposit money with court.

Attachment of debts is a process by which means of which a judgement

creditor is enabled to reach money due to the judgement debtor, which is
in the hands of a third party O.23 r 1. The third person in whose hands
is the money which is sought to be attached, is called Garnishee, the
requisite proceeds are known as garnishee proceedings and the
necessary order is called garnishee order.

Garnishee Absolute-O. 23 r 3 CPR. It is effected when the garnishee bank

transfers funds from judgement debtors account to that of the judgement
creditor. See Unique Holdings Ltd vs. Business Skills Trust Ltd HCCS
No. 402/2012

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In the case of Ziritwawula vs UBC 1987 HCB, a judgement creditor

sought to recover money in UBC allegedly held by the bank on account of
judgement debtor. A garnishee order nisi was passed directing UBC to
explain. At the hearing on an application to make the garnishee order
absolute, that bank objected on ground that the account of the
judgement debtor was at its branch in Masindi which at the time was
disturbed area, cut off and not accessible. The bank did not establish the
actual monies if any held on the account of the judgement debtor. The
court refused to make the order absolute.

In the case of Ahmed Mohammed vs Justice Wamala 1986 HCB, this

was an application to make a garnishee order nisi absolute. Court found
that it’s established law that in garnishee proceedings there must be a
debtor-creditor relationship. Court must first be satisfied before it makes
an order absolute of the existence of the debt at the present time. A debt
which a judgement debtor could sue if he could chose. In this case the
applicant sought to recover a sum of money satisfaction of garnishee in
respect of money deposited with the garnishee by way of security for
expenses in transaction of selling his tea, but no expenses had been
deducted as yet therefore the amount could not be ascertained before the
sale of the tea.

4. Attachment of Decree (S. 38 (f) CPA & O.22 r 50 CPR)

Attachment of decree is effected by sending a notice to court which

passed the decree, to stay execution of the same

Followed by the application for execution by the judgement creditor, to

the court which passed the decree. The effect is to prohibit or restrain
such debtor from receiving any benefit from such decree.

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The proceeds of executing the subject decree shall then be passed over to
the applicant / judgement creditor in the circumstances.

5. Execution against the Government

Neither arrest nor attachment can be enforced against the government as

of right. Rule 15 of the Government proceedings (civil procedure) rules
S.171-1 excludes the applicability of O.22 (execution of decrees and
orders), 23 (Attachment of debts) and 42 (appointment of receivers) to
matters relating to government. Under these rules therefore, it is the law
that no attachment of government property can issue.

Before an execution or satisfaction of an order against government is

issued, the judgement debtor shall apply for a certificate of satisfaction
order before a registrar after expiration of twenty one days S.19 GPA and
Rule 14 (1) Government proceedings (civil procedure) rules. Such a copy
of certificate is served to the Attorney General by the decree holder S.19
(2) GPA. This procedure was summarised in the case of Brother Peter vs
A.G [1980] 107 to the effect that the proper procedure is for the
judgement creditor to apply for and obtain a certificate from the registrar
and present it to the proper officer or accounts and after endorsement
from the Attorney General for payment.

Where the official refuses to pay, the judgement debtor can apply for
mandamus. The high court has the power to make an order for
mandamus which is directed towards the public officer in question
requiring him to do that for which he is under a public duty to do S. 37
(1) Judicature Act.

In the case of Goodman Agencies Ltd & Ors vs A.G HCCS

No.719/1997an application for judicial review on which an order of
mandamus directing the Government of Uganda through the

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commissioner treasury comply with the judgement and decree of court

.Justice Tabaro held that by judgement dated 14-11-2005 it was decreed
that Government to pay the sum of 1,332,172,842shs representing the
value of the truck in question, Shs 12,865,370,000 representing loss of
income/ earning and. Shs300,000,000 being cost of the suit. That
subsequently in a ruling of court it was ordered that the decretal amount
be paid in court, to date the defendant A.G has not met the detrital
amount. That ordinarily the judgement creditors would be entitled to
proceed with the execution, it is well known that execution against the
Government is not permitted by law. Since there is no other mode or
channel for recovery of the detrital amount, an application is granted
under O.46A and an application for mandamus shall be fixed.

In the case of Nabuwati & 2 Ors vs. The Secretary to the Treasury &
Anor HCMA No. 2613 of 2016 the applicant sought orders of
mandamus to issue against the respondents to pay money indicated in
the Certificate of order against the government. The issue was whether
this was a proper case for issue of the order of mandamus. Court held
that the high court has discretion to grant an order of manadamus in all
cases in which it appears to be just and convenient. The order may be
granted unconditionally or on such terms and conditions as the court
thinks fit. That in order to obtain a writ of mandamus, the Applicant has
to establish the following circumstances;

 A clear legal right and a corresponding duty in the respondent

 That some specific act or thing that the law requires that particular
officer to so, has been omitted to be done
 Lack of any alternative
 Whether the alternative remedy exists but it is inconvenient, less
beneficial or less effective or totally ineffective.

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That courts have clearly stated that ‘the duty to perform an act must
be indisputable and plainly defined as mandamus will not issue to
enforce doubtful rights’ see Nampogo Robert and Another vs. A.G
HCCMA 0048/2009.

That in the present case, the applicant obtained judgement against

the Attorney general, a decree was extracted. A certificate of order was
issued. Minister of justice by letter directed the respondents to pay
the amounts due in the said certificate but the respondents have
failed to settle the amount due, to the detriment of the applicants.
That it has been established by courts ‘a decree or order of payment
made against Government becomes a statutory duty for the
Government concerned to perform the duty. And that payments decreed
against Government have to be made by the Attorney General through
the Treasury Officer of Accounts.’

That the respondent’s refusal and or failure to pay amounts decreed

by court continues to grossly inconvenience the applicants. The writ
of mandamus to issue to compel the respondents to perform their
statutory duty to pay the applicants the sums due and owing as per
the decree and certificate of order against the government.

In case an order of mandamus is granted and the official is still

obstinate, court can invoke contempt of court proceedings or by an
application to show cause why the respondent should not be committed
to a civil prison for non-compliance with order of mandamus. In practice,
some decree holders are pushing for execution against Government
departments by way of attachment of Government property (motor
vehicles) relying on the principles and reasoning for the grant of
injunctive relief against the Government . See Ostraca Ltd v A.G.

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6. Execution against Local Government

No execution, attachment or process in such a nature shall be issued out

of any court for enforcing payment by a local government of any money
or costs again its fixed assets and statutory transfers, provided the
execution or attachment may be against any other property after six
months from the date judgement, orders or decree -S. 6 (2) Local
Government Act Cap.243.

7. Receiver by way of Equitable Execution

Application may be made to the court for an order for appointment of a

receiver to receive rents, profits and other income of the judgement
debtor, which cannot conveniently be attached by the other methods of
execution

REMEDIES AFTER JUDGEMENT

Stay of execution

Every judgement or decree of a court of competent jurisdiction takes

effect immediately upon pronouncement. Although court will not without
good reason delay a successful plaintiff in obtaining fruits of his
judgement, it has power to stay execution if justice requires that the
person against whom judgement is to be enforced should have this
protection.

The court has inherent jurisdiction over all judgements or orders that it
made, under which it can stay in all cases-O.43 r 4 CPR.

O.22 r 26 CPR provides that where a suit is pending in any court against
the holder of a decree of the court in the name of the person against
whom the decree was passed, the court may, on such terms as to

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security or otherwise, as it thinks fit, stay execution of the decree until

the pending suit has been decided.

The court of Appeal or the court below may stay execution pending an
appeal, but mere service of notice of appeal does not operate as a stay-
O.43 r 4 CPR

Under rule 6(2) of the court of Appeal Rules, the institution of an appeal
shall not operate to suspend any sentence or to stay execution, but the
court may in any civil proceedings, where a notice of appeal has been
lodged in accordance with rule 76 of these rules, order a stay of
execution, an injunction, or stay of proceedings on such terms as the
court may think just. See also Rule 6 (2) of the Supreme Court Rules.

In the case of Kavuma T/A Kavuma & Associates v Attorney General

& Goodman agencies HCMA NO. 417/2012. Justice Mwangusya held
that it is well settled principle of our law that an appeal does not in itself
operate as a stay of judgement. The principle was expounded in Kampala
City Council vs National Pharmacy (1979) HCB 215 where it was held that
the prudency of an appeal does not itself operate as a stay of judgement.
That the statutory provisions Rule 6 (2) of the judicature (court of appeal)
rules directions and the judicature (Supreme Court) rules directions an
appeal does not operate as a stay of execution. That similarly in
Goodman Agencies Ltd & Anor vs A.G & Anor HCMA 34/2011
Madram J held that there is to be a stay of execution, there has to be an
application for an order to stay the decision appealed against and an
order for stay should be in place.

That the application herein falls under the ambit of the provision of
section 21(1) of the Government Proceedings Act (cap 77) ‘attachment of
monies payable by the Government’

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1. Where any money is payable by the Government to some person

who, under any order of any court, is liable to pay any money to
any other person, and that other person would if the money so
payable by the Government were money payable by a private
person, be entitled under rules of court to obtain an order for the
attachment of the money as a debt due or accruing due, the High
Court may, subject to this Act and in accordance with rules of
court, make an order restraining the first mentioned person from
receiving that money and directing payment of that money to that
person; except that no such order shall be made in respect of-
a) any money which is subject to the provisions of any
enactment prohibiting or restricting assignment or charging
or taking in execution; or
b) any money payable by the Government to any person on
account of a deposit in the Post Bank Uganda Limited.
2. The provision of subsection (1) shall, so far as they relate to forms
of relief falling within the jurisdiction of a magistrates court, have
effect in relation to magistrate courts as they have in relation to
the High court.

That none of the exceptions is applicable to this case and once it is

acknowledged that the only an order of stay of execution can prevent
the attorney general from paying the monies owing to the second
respondent the implication of the above is that before the 2nd
respondent is paid the monies due, the applicant would have to be
paid.

Before leave is taken on this matter, it was raised that according to

circular of registrar, this application should have been handled by the
execution division. That the circular of the registrar is an

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administrative arrangement that would not prevent court from

hearing the matter which it has jurisdiction to hear

Rule 42 of the court of Appeal rules providing that whenever an

application may be made either in the court of Appeal or in the High
Court, it shall be made first in the High Court. Notwithstanding in any
civil matter, the court may on application or of its own motion, give leave
to appeal and grant a consequential extension of time for doing any act
as the justice of the case requires, or entertain an application under rule
6 (2) (b) of these rules, in order to safeguard the right of appeal,
notwithstanding the fact that no application for that purpose has first
been made to the High Court.

In the case of National Pharmacy Ltd vs Kampala City Council

[1979] HCB 123 (AC) held that a successful party in the high court is
entitled to enforce the decree obtained even by execution, if necessary,
and pendency of an appeal is no bar to him in so doing: rule 5 (2) Court
of Appeal Rules. If the losing party so wishes he may apply for stay of
execution but no automatic stay exist under the rules by virtue only that
an appeal has been filed. An application for stay of execution must first
be made to the High Court and if made to the court of Appeal, it must be
made to the full court and not a single judge Rule 52(2) of court of Rules.

In the case of Moses Ingula vs Law Development Centre held that

there can never be stay by inference.

However there is an exception where the law recognizes automatic stay of

execution as long as the aggrieved party prefers an appeal. Section 95
(3) of the parliamentary elections Act 2005 where as a result of an
election petition the election of a person who has been elected is set aside
the decision shall not have the effect of that person to vacate his or her

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seat until, where no lodged, the expiry of the time within which to lodge
an appeal or where an appeal has been lodged, the appeal has been fully
disposed of or withdrawn. See Peter Adong vs Markey Vicent Okidi Elect.
Pet. No.20/2011.

A court of appeal may order the stay of execution of the judgement of a

lower court, but before it does so, the lower court has inherent powers to
proceed to enforce its own judgement regardless of the fact that an
appeal against the judgement is pending before a higher court.

If the grounds of applying for a stay are that an appeal is pending, the
applicant will need to show not only that the appeal has a real prospect
of success, but usually that if a stay was not granted and the decree
executed, the appellant would have no reasonable prospect of recovering
it.

For protection of immediate interest of the claim, it is prudent to apply

for an interim order of stay of execution pending determination of the
interparty application for main stay. See Lawrence Mulindwa Kyazze vs
Lawerence Busingye that encourages making an informal application
before a judge who made the decision for an order to staying orders and
later to file a formal application.

In the case of Hwan Sung Industries Ltd vs Tajdin Hussein & 2 Ors
Civil Application No.19/2008, also by the court of Appeal in Crane
Bank Ltd & Anor vs Belex Tours & Travael Miscellaneous Application
No. 343 & 345/ 2013 on the issue of merit of an application seeking an
interim order. After establishing that the notice of appeal had been
lodged in accordance with rule 72of the rules S.C the court stated as
follows, ‘…. For an order of stay, it suffices to show that a substantive
application is pending and that there is a serious threat of execution before

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the hearing of the pending substantive application. It is not necessary to

prompt consideration of matters necessary in deciding whether or not to
grant the substantive application for stay”

Procedure of stay of execution

The practise the court has adopted is that in general the application for
stay of execution should be made informally to the judge who decided the
case when the judgement is delivered. The judgement may direct that
formal application be presented on notice.

The jurisdiction of court to stay execution where there is a pending suit

stems from section 98 CPA, which preserves the inherent powers of court
rather than under O.22 r 26. A further notice presented under O.52 r 1
does serve as a remedy in addition to providing procedure.

It is possible and proper to apply to set aside and staying an execution in

one application as long as the application refers to the correct provisions
of the CPA. The high court has inherent power to stay its orders
including those for execution, irrespective of whether there is an appeal
to the court of appeal. The court of appeal can order a stay of execution
in exercising of the jurisdiction exercised by the high court. In the case of
Mugenyi and Co. Advocates vs National Insurance Corporation Civil
Appeal No.13/1984 {1992-1993] HCB 82 court of appeal held;

i) Under O.19 r 26 (now O.22 r 26 CPR) where a suit is pending in

any court against the holder of a decree of such court in the name
of the person against whom the decree was passed, the court may
on such terms as to security or otherwise, as it thinks fit, stay
execution of the decree until the pending suit has been decided.
The words of rule 26 of O.19 requires that there shall be pending a
suit in the same court again the holder of the decree in that court

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brought by the unsuccessful party in the earlier suit and it’s that
court which may on terms as it thinks fit stay execution of the
decree until the pending suit has been decided. In the instant case,
the pending suit was an appeal in the court of appeal and not a
suit in the high court which was being asked to stay execution.
ii) An appeal pending in the higher court against the earlier decision
of the court is not a suit pending in that court and could not be the
basis of an application for stay of execution within the meaning of
O.19 r 26
iii) Under section 2 CPA, an order for the dismissal for default is not a
decree holder and thus the respondent who was the appellant in
the high court was not a decree holder and thus was a valid
objection to an application for stay of execution under O.19 r 26.
The instant case did not fall within the scope of O.19 r 26.
iv) It is well established that the high court has inherent jurisdiction
under S.101 CPA to stay any of its orders pending appeal. Since
the high court has power to stay execution of any of its orders
either in exercise of its inherent jurisdiction, O.39 r 4 ( now O.43 t
4), it follows that like jurisdiction is conferred on the court of
appeal by section 40 (2) Judicature Act 1967.

Threshold for Stay of Execution

The principle of law to be followed in an application to stay of execution

is whether substantial loss would arise from not granting the same and
whether the dictates of justice demand so.

In the case of Imelda Nandaula vs. Uganda Development Bank

[1992] 1 KALR 97 held that the principle of law to be followed in

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applications to stay of execution is whether substantial loss would arise

from not granting the same and whether the dictates of justice demand
so.

In the case of Keisi Investments Ltd vs. Erimu Company Ltd HC

Miscelleneous Appeal No. 003 of 2015 the issue was whether
execution should be stayed, that is whether the respondent has
established sufficient cause for stay of execution. That it is trite law that
‘the court may exercise its discretionary powers in considering an
application for granting a stay of execution.’ An application for stay of
execution has to establish any one of the three circumstances to enable a
court to grant a stay order. These are:-

i. Whether the appeal has prima facie a likelihood of success

ii. Whether the refusal of staying execution is likely to cause
substantial and irreparable injury to the applicant, or
iii. On a balance of convenience. Refer to Magunga vs. National
Bank of Commerce Ltd [2007] 2 EA 285

In the case of Kiranda vs. Top Finance Company U Ltd Misc.

Application No. 356 of 2015 the issue for court to determine was
whether stay of execution should be granted and the property attached
released from attachment. That decided cases indicate that ‘the granting
of or otherwise of an order of stay of execution is at the discretion of the
court. In exercise of this judicial discretion, the court as and where is
relevant considers a number of factors, notably, whether the refusal to
grant stay is likely to cause substantial and irreparable injury or loss to
the applicant, whether the injury or loss cannot be atoned by damages;
balance of convenience, and whether prima facie the intended appeal has
likelihood of success. Above all, further to considering the above factors,
the court takes into account the individual circumstances and merit of

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the case in question.’-See Universal Petroleum Services Ltd vs. BP

Tanzania Ltd [2006] 1 EA 486 (CAT)

In the case of Kayizzi vs. Osman MA No. 1921 of 2016 the applicant
sought orders for staying execution of the decree. The issue was whether
this is a proper case for grant of stay of execution. Court stated that to
obtain a stay of execution, courts have stated ‘a party must satisfy three
conditions’ to wit;-substantial loss may result unless the order of stay is
made, the application has been made without unreasonable delay; and
security for costs has been given to the applicant. It has been clarified
that ‘substantial loss does not represent any particular size or amount
but refers to any loss, great or small that is of real worth or value as
distinguished from a loss that is merely nominal.’-Tropical commodities
Supplies Ltd and Others vs. International Credit Bank Ltd (in
Liquidation) (2004) 2 E.A 331 CH CU. If execution is not stayed, the
outcome of the application pending in the lower court may be rendered
nugatory and the applicant might suffer substantial loss.

In the case of Uganda Medical & Dental Practioners Council & Anor vs.
Ssentongo MA No. 2656 of 2016 Court stated that while it has been
established that court has discretion to grant stay of execution, it should
be borne in mined that ‘this power ought to be exercised judiciously and
where it appears equitable to do so, with a view to temporarily preserving
the status quo’. That in deciding whether to grant a stay of execution or
not, the following guiding principles among others should be considered:-

1. Likelihood of success of an appeal/application

2. Danger of suffering substantial loss or irreparable injury
3. The application has been made without unreasonable delay
4. Security for costs has been given by the applicant
5. Balance of convenience

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Refer to Malinga Noah & 2 Others vs. Akol Henry CAMA 203/15
and David Wesley vs. Attorney General Constitutional Application
61/14.

That however, courts emphasised that, ‘in application of this nature,

guiding principles would depend on the individual circumstances and
merit of each case. The individual circumstances of each case would
determine whether the case falls within the scope and parameters of any
other laid down principles’-See East African Development Bank vs.
Blueline Enterprises Ltd [2006] 2 EA 51 CAT. That the applicants claim
that they will suffer substantial loss unless the order of stay is granted,
but do not state what kind of loss will be suffered. That courts have
repeatedly emphasised that ‘it is not enough to merely repeat the words
of the code and statute that substantial loss will result; the kind of loss
must be specified, details must be given and conscience of the court
must be satisfied that such loss will really ensue. The words ‘substantial
loss’ cannot mean the ordinary loss to which every judgement debtor is
necessarily subjected when they lose a case and is deprived of property
as a consequence. That is an element that must occur in every case...It is
clear that the words ‘substantial loss’ must mean something in addition
to or different from that,’-See Tanzania Cotton Marketing Board vs.
Cogecot Cotton Co. SA [1995-98] EA 312. That in the present case, the
applicants have not indicated how they will suffer substantial loss by
registering the respondent as directed by court and also paying him Shs.
5Mn/-, general damages plus accumulated interest. That it might held
the applicant to note that ‘pending of an appeal is not a bar toa
successful party’s to enforce a decree obtained even by execution.’-See
URA vs. Tembo Steel Ltd HCMA 0521 /2007.

Payment in instalments

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The judgement debtor may after the passing of judgement apply to court
with consent of the decree holder, to pay the decretal sum in
instalments.-0.21 r 12(2) An order for payment of instalments after
judgement and without consent of the decree holder is a nullity.

Objector Proceedings

Upon execution by way of attachment of property, which allegedly does

not belong to the judgement debtor, such attachment can be contested
where the claimant or objector maintains that the property is not liable
to such attachment. This power is extensive, and any claim or objection
raised must be investigated.

The rationale for this rule is mainly to protect third parties against
improper and misconceived executions. Objector proceedings are in effect
intended to enable holders of equitable interest to preserve their interest
or entitlement in absence of the legal or registered right e.g. bonafide
occupants of land.

0.22 r 55 provides that where any claim is preferred to, or any objection
is made to the attachment of, any property attached in execution of a
decree on the ground that the property is not liable to attachment, the
court shall proceed to investigate the claim or objection with the like
power as regards the examination of the claimant or objector, and in all
other respects as if he or she was a party to the suit, except that no such
investigation shall be made where the court considers that the claim or
objection was designedly delayed. Where the property to which the claim
or objection applies has been advertised for sale, the court ordering the
sale may postpone it pending the investigation of the claim or objection.

In the case of Hariral and Company vs. Buganda Industries [1960] EA

318cited Chitaley and Rao,s Code of Civil Procedure (6 ed)page 1880

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that; ‘what is to be investigated is indicated by the following next rules, viz

rule 59, rule 60 and rule 61. The question to be decided is, whether on the
date of attachment, the judgement-debtor or objector was in possession, or
where the court is satisfied that the property was in possession of the
objector, it must be found whether he held it on his own account or in trust
for the judgement debtor. The sole question to be investigated is thus, one
of possession. Questions of the legal rights and title are not relevant,
except so far as they may affect the decision as to whether possession is
on account of or in trust for the judgement debtor or some other person.’

The court is bound to order the release of the attached property if it finds
that possession in the claimant on his / her own account, even if there is
title and disposing power remaining in the judgement debtor.

The main basis of objection under this rule concerns possession, not title
although a suit under this rule goes to title, not merely possession, and
all the objector must show is that he was in possession of the property at
the time of attachment for which he claims an interest.

It is important to note that rule 55 must be read hand in hand with rule
56 which contains the grounds that the objector or claimant must rely
on. The effect of objector proceedings is to release the property from
attachment.

Objector proceedings must be brought with all promptitude otherwise

they fail if delay was deliberate or reckless. There is no delay when there
is no evidence that the person affected is aware of the date of attachment
or the date of subsequent sale.

If an objector losses an application for objector proceeding then the only

alternative left for him was to file a suit to establish his right, which he

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claims to the property in dispute as provided for under 0.22 r 60 and not
an appeal.

In the case of Edmond Khakale vs. Banyamini Wadali (1976) HCB 19

held that in objection proceedings the sole equation to be investigated is
one of possession and questions of legal right and title are not relevant
except so far they affect the decision as to whether the possession is an
account for in trust for judgement debtor or some other person.

In the case of Mukama vs. Harris Motors (U) Ltd MA No. 2365 of 2016
the issue was whether the vehicle should be released from attachment.
Court stated that it has been established by decided cases that ‘in
objection proceedings, the investigation the court does is restricted to issue
of who was in possession on the date of attachment and not necessarily
who has title over property’-see Kiwalabye vs UCB and Joseph Mulenga
vs. Photo Focus (U) Ltd [1996] KALR 615 at 616. That however, while
possession is emphasised, the emphasis must be read in light of O.22 r
56 C.P.R which says that ‘the objector should show that he has interest
in the property other than possession.’ -Kiwalabye’s case.

In the case of Buscar East Africa vs. Mulinda MA No. 213 of 2017 an
application was made under O.22 r 55(1), 56 seeking orders releasing
motor vehicles from attachment. The issue for determination was
whether the two vehicles should be released from attachment. Court
stated that the principle established by decided cases is that ‘in objection
proceedings, the investigation the court does is restricted to the issue or
who was in possession on the date of attachment and not necessarily
who has title over the property’. –Refer to Kiwalabye vs. Uganda
Commercial Bank & Another [1994] KLR 633. That according to the case
of Joseph Mulenga vs. Photo Focus (U) Ltd KLR, ‘the applicant has to
plead possession in the affidavit.’ That Courts have further emphasised

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that ‘what court needs to investigate is not ownership of the property

being attached. But has to determine that applicant was in possession of
attached property on his own account and not on account of the
Judgement Debtor or some other person’. –See Mineral Waters Ltd vs.
Kampala Mineral Waters Ltd [1996] KLR 466 . That it is clear from the
decided cases that the issue of ownership should not be investigated at
this stage.

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Topic VIII

THE SLIP RULE

SEC 99 CPA, RULE 36 COURT OF APPEAL RULES, RULE 35

SUPREME COURT RULES.

Section 99 CPA provides for amendment of judgments, decrees or orders.

It provides that Clerical or mathematical mistakes in judgments, decrees
or orders, or errors arising in them from any accidental slip or omission
may at any time be corrected by the court either of its own motion or on
the application of any of the parties.

Rule 36 of the Court of Appeal rules provides that a clerical or

arithmetical mistake in any judgment of the court or any error arising in
it from an accidental slip or omission may, at any time, whether before or
after the judgment has been embodied in a decree, be corrected by the
court concerned, either of its own motion or on the application of any
interested person so as to give effect to what was the intention of the
court when judgment was given. An order of the court may at any time
be corrected by the court, either of its own motion or on the application
of any interested person, if it does not correspond with the judgment or
ruling it purports to embody or, where the judgment or order has been
corrected under sub rule (1) of the rule, with the judgment or order as so
corrected. Rule 35 of the Supreme Court Rules has the same provision.

In the case of Transtrac Ltd vs. Damco Logistics Ltd HCMA No. 348
/2012 the application was made under section 99 of the Civil Procedure
Act and the enabling rules of the Civil Procedure Rules for orders that
the second line of the judgment in the main suit namely civil suit
number 161 of 2012 is corrected by inserting the figures US$303,330
between the word "Party" and the full stop. Secondly it is for orders that

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the decree in civil suit number 161 of 2010 is corrected by inserting

US$303,330 at the end of paragraph 3 thereof and for costs of the
application to be provided for. Justice Madrama held that Section 99 of
the Civil Procedure Act is set out here in below: "99. Amendment
of judgments decrees or orders

Clerical or mathematical mistakes in judgments, decrees or orders, or

errors arising in them from any accidental slip or omission may at any time
be corrected by the court either of its own motion or on the application of
any of the parties."

That the provision clearly deals with clerical or mathematical mistakes.

Secondly it deals with any errors in judgment arising from any accidental
slip or omission. That the case of Orient Bank Ltd versus Frederick
Zaabwe and Mars Trading Ltd Supreme Court Civil Application
Number 17 of 2007 the Supreme Court interpreted rule 35 (1) of the
Supreme Court rules. The Supreme Court rules are similar to section 99
of the Civil Procedure Act and provide that:"A clerical or arithmetical
mistake in any judgment of the court or any error arising in it from an
accidental slip or omission may, at any time, whether before or after the
judgment has been embodied in an order, be corrected by the court, either
of its own motion or on the application of any interested person so as to
give effect to what was the intention of the court when judgment was
given."It is similar to section 99 of the CPA because it makes reference to
clerical or arithmetical mistakes in any judgment or order. Secondly it
makes reference to errors arising in the judgment or order from an
accidental slip or omission. Thirdly an application for correction may be
made by an interested person or the court may on its own motion make
the correction. The Supreme Court rule is wider in that it provides that
any interested person may apply whereas section 99 of the Civil

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Procedure Act provides for an application by any of the parties. The

Supreme Court rules also has an addition in that it gives the intention of
the rule as to give effect to what the intention of the court was when
judgment was given. That the Civil Procedure Act section 99 thereof
however does not have this latter part of the rule. That the Supreme
Court held that subject to the inherent powers of the court and the slip
rule, the decision of a court in every proceeding is final. The court made
reference to the case of Lakhamshi Brothers Ltd versusR. Raja And
Sons (1966) EA 313at 314 for the proposition of law that the court will
only apply the slip rule were it is satisfied that it is giving effect to the
intention of the court at the time when judgment was given or, in the
case of the matter which was overlooked, where it is satisfied, beyond
doubt, as to the order which it would have made had the matter been
brought to its attention.

That the slip rule under which the applicant applied refers to a clerical or
mathematical mistake. This aspect of the section is inapplicable to the
applicant’s application because there was no clerical or mathematical
mistake. The question for determination is whether there was any error
made by the court by accidental slip or omission not to mention the
quantum for indemnity of the defendant under clause 6.5 of the contract
which was also the basis of the liability of the third-party in the
judgment. Court held that the fact that there is a controversy between
the parties as to the quantum of the full replacement value of the goods
lost while in the custody of the third-party, demonstrates without the
need for further argument that the court had omitted to pronounce the
quantum of the full replacement value of the goods. The applicant’s
application therefore has merit .In the premises, the applicant’s
application succeeded in part and, because the interpretation of the

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court of the judgment is adverse to the applicant, each party shall bear
its own costs of the application.

This provision of slip rule also considered in the case of Adam

Viasiliyadis vs. Libyan Arab Bank SCC App. No. 28/1992. An
application was made under rule 34 (now 35) of the Supreme Court rules
for the court to correct an error in its judgment. The court found that it
had powers to correct arithmetical or clerical mistake of judgment of the
court or any error arising therein from any accidental slip or omission at
any time whether before or after the judgment has been embodied in an
order so as to give effect to what was the court’s intention when
judgment was given.

This rule has been considered in Kasandas vs. Jivraj [1965] EA 700.
In this case the court forgot to vacate an order of stay of execution and to
order payment of the monies deposited in court. In an application to
correct the error, the respondent submitted that the court had no power
to amend judgment once they have been embodied in formal order and
were counsel fails to make the appropriate application. The Court found
that the Court of Appeal has jurisdiction to amend judgment and order
the same powers the High Court has under section 99 CPA. The Court
found that slip orders may be made to rectify omissions resulting from
the failure of counsel to make some particular application. That slip
order will only be made were court is fully satisfied that its giving effect
to the intention of the court at the time when judgment was given or in
case of a matter which was overlooked, where its satisfied beyond doubt
as the order it would have made had the matter been brought to its
attention.

In the case of David Muhenda vs. Humphrey Mirembe SC Civil

Applic. No. 5/2012 the applicant brought the application by notice of

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motion under rule 2(2) and 35 of the Judicature (Supreme Court Rules)
Directions (S.l. 13-11) seeking orders that the honorable Court recalls its
judgment dated 17th October 2000 and varies or amends the same to
make provision for the estate of Kezia Rujumba; AND/OR IN THE
ALTERNATIVE application be made of the slip rule to correct the error or
injustice caused by the mis-description of the boundaries to the suit
property. Court held that under rule 2(2) of the Judicature (Supreme
Court Rules) Directions SI 13-11, it has the power to recall its judgment
and make orders as may be necessary for achieving the ends of justice.
In doing so, it is not limited to rule 35 of the rules of the court. See, for
example, Livingstone Sewanyana vs. Martin Aliker, Msc. App. No. 40/91
and Nsereko Joseph Kisukye& Others vs. Bank of Uganda, Civil Appeal
No. 1 of 2002 and Orient Bank Ltd vs. Fredrick Zaabwe&Anor Civil Appl.
No. 17 of 2007. In Nsereko Joseph Kisukye case, for example, the court
recalled its judgment and made clarifications on the orders it had made
to make them implementable. That however, the power of the court in
this respect is not open ended. As it was stated in Orient Bank vs.
Fredrick Zaabwe (supra) “the decision of this court on any issue or law is
final, so that the unsuccessful party cannot apply for its reversal”. This
principle is based on the decision of Lakhamshi Brothers Ltd vs. R. Raja
and sons [1966] E.A. 313 page 314 where Sir Charles Newbold P stated:
“....There are circumstances in which this court will exercise its jurisdiction
and recall its judgment, that is, only in order to give effect to what clearly
would have been its intention had there not been an omission in relation to
the particular matter. But this application and the two or three others to
which I have referred go far beyond that. It asks, as I have said, this court
in the same proceedings to sit on its own previous judgment. There is a
principle which is of the greatest importance in the administration of
justice and that principle is this, it is in the interest of all persons that

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there should be an end to litigation.” That this principle was restated in

the case of Fangmin vs. Dr. KaijukaMutabazi Emmanuel SCCA No. 06 of
2009. That this application asks court to clarify the boundaries so that
Kezia’s land is left out of the execution of this court’s decree. It asks for
the clarity of the phrase “...in the South Kezia” contained in the
judgment. Court further held that it did not, set out to describe the
boundaries other than quoting the part of the learned appellate judges
judgment and agreeing with it. It is assumed that the applicant was
satisfied with the boundaries as described in the judgment of the learned
appellate judge otherwise he would have made it a ground of appeal to
this court. He did not. That in their view, therefore, there is nothing to
clarify or correct or vary in the judgment of the court concerning the
description of boundaries. The grievance of the applicant as shown in
the grounds of his application and affidavits in support of the notice of
motion is that the property of late Kezia was taken by the respondent
during execution of this court’s decree. If this complaint is true, and this
is subject to proof, the remedy does not lie in recalling the judgment of
this court and varying or amending or clarifying it or applying the slip
rule to correct the alleged injustice caused by mis-description of the
boundaries because this court did not set out a description of
boundaries in its judgment as earlier stated. That the proper procedure
for addressing the complaint that has arisen during execution was for
the applicant to file objector proceedings as provided for under section
31(1) of the Civil Procedure Act and Rule 50 of Order 22 of the, Civil
Procedure Rules. Alternatively he can file a fresh suit to claim the
property that might have been taken by the respondent during the
execution.

Court further held that it will refuse to entertain delayed applications

brought under rules 2(2) and 35 of the rules of this court unless

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sufficient reasons are shown to justify the delay. That the phrase “at any
time” appearing in rule 35(2) of the rules of this court should not be
interpreted to mean that inordinately delayed applications without
justification will be permitted by this court. This inordinate delay of the
applicant in bringing this application cannot be sustained under rules
2(2) and 35 of the Rules of this court and the application lacks merit and
it.

In the case of Fang Min vs. Dr. Kaijuka Mutabaazi S C Civil

Application No. 06/2009 an application was brought under rules 2(2),
35 & 42 of the Rules of the Supreme Court. In the application, the
applicant sought court to recall its judgment to be corrected under the
slip rule “so as to remove the order for payment of the market value of
the suit house in lieu of specific performance.” The Supreme court made
an alternative order in its judgment that “if the specific performance
cannot be performed then the respondent is to pay to the
appellant, by way of damages, the market value of the suit house.”
It is against this highlighted alternative order that this application is
made.

Supreme Court held that the law governing the slip rule is rule 35 (1) of
the Supreme Court Rules. It reads thus: “A clerical or arithmetical
mistake in any judgment of the court or any error arising in it
from accidental slip or omission may, at any time, whether before
or after the judgment has been embodied in an order, be corrected
by the court, either of its own motion or on the application of any
interested person so as to give effect to what was the intention of
the court when the judgment was given.” That this court in Orient
Bank Limited vs. Fredrick Zabwe and Anor SCCAPP No. 17/2007
stated the scope of the application of this rule. There, the court stated as

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a general rule that “the decision of this court on any issue of fact or
law is final, so that the unsuccessful party cannot apply for its
reversal - - - - - - . - - - under rule 35 (1), this court may correct inter
alia any error arising from accidental slip or omission in its
judgment, in order to give effect to what was its intention at the
time of giving judgment.” To buttress that point, this court quoted with
approval an explanation by Sir Charles Newbold, P. in Lakhamishi
Brothers Ltd. - vs - R. Raja and Sous (1966) EA 313 at p. 314
where he said: “I would here refer to the words of this court given in
the Ranaiga case(1965) EA at p. 703as follows: ‘A court will, of
course, only apply the slip rule where it is satisfied that it is giving effect to
the intention of the court at time when judgment was given or in the case if
a matter which was overlooked, where it is satisfied beyond doubt, as to
the order which it would have made had the matter been brought to its
attention.’ ” That the above position still holds good. It is therefore, now
fairly well settled that there are two circumstances in which the slip rule
can be applied namely: 1. where the court is satisfied that it is giving
effect to the intention of the court at the time when the judgment was
given; or 2. in the case of a matter which was overlooked, where it is
satisfied beyond doubt, as to the order which it would have made had the
matter been brought to its attention. That clearly, payment of the market
value of the suit house if the specific performance cannot be performed
was not included in the respondent’s prayers. The inclusion of the order
of payment of the market value of the suit house if the specific
performance cannot be performed was therefore a slip. The fact that the
respondent did not include that relief in his prayer was overlooked. Had
that fact been brought to the attention of the court, without doubt, the
order for payment of the market value of the suit house if the specific
performance cannot be performed, would not have been made. To give

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effect to the intention of the court is to remove the alternative order “for
payment, by way of damages, of the market value of the suit house
if the specific performance cannot be performed.” The order should
stop at restoring the judgment and orders of the High Court.

REVIEW OF DECREES AND ORDERS.

It is the general principle of law that the court after passing judgment
becomes functus officio and cannot revisit the judgment or purport to
exercise a judicial power over the same matter. However there are
exceptions to the general rules as set out under the law that allows court
to review its judgment. Section 82 CPA, and O46 CPR. These provisions
allow the High Court and Magistrates Court to sit in their judgments
through a process called Review.

Section 82 provides that any person considering himself or herself

aggrieved (a) by a decree or order from which an appeal is allowed by this
Act, but from which no appeal has been preferred; or (b) by a decree or
order from which no appeal is allowed by this Act, may apply for a review
of judgment to the court which passed the decree or made the order, and
the court may make such order on the decree or order as it thinks fit.

Application for review is provided for in O.46 CPR. Rule 1 thereof

provides for application for review of judgments. Sub rule 1 provides that
any person considering himself or herself aggrieved—

(a) by a decree or order from which an appeal is allowed, but from which
no appeal has been preferred; or

(b) by a decree or order from which no appeal is hereby allowed, and who
from the discovery of new and important matter of evidence which, after
the exercise of due diligence, was not within his or her knowledge or

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could not be produced by him or her at the time when the decree was
passed or the order made, or on account of some mistake or error
apparent on the face of the record, or for any other sufficient reason,
desires to obtain a review of the decree passed or order made against him
or her, may apply for a review of judgment to the court which passed the
decree or made the order.

In the matter of Nakivubo Chemists (U) Ltd 1979 HCB 12, a minority
shareholder petitioned court that he had been oppressed by the majority
shareholder. Several orders were made by the court and one of them was
to the effect that the Company’s account had to be audited to establish
the stake each shareholder and in particular the petitioner. At the time of
the order it was not known that the premises of the company and its
property had been taken over by the custodian board. Auditors were duly
appointed but couldn’t audit because the board had destroyed the
company’s books of accounts. The petitioner then applied under section
83 CPA and O42 CPR for review of the order for auditing the companies’
accounts. The petitioner / applicant prayed that the court assess or
determine his stake in the company and his entitlement from the
respondent relying on the evidence already recorded and other evidence
that he may produce. The application was opposed on ground that the
applicant wasn’t an aggrieved party within the meaning of O.42 r 1. The
court found that the expression ‘any aggrieved’ within the meaning of
section 83 CPA and O.42 r 1 CPR means that a person who has suffered
a legal grievance, that the instant case the applicant could not be
aggrieved by the earlier order requiring auditing of the Company account
because that was one of the remedies he had prayed for in the petition.
The court found that there cases upon which review of judgment or order
is allowed and these are;

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a) Discovery of new and important matters of evidence previously

overlooked by excusable misfortune
b) Some mistake or error appearing on the face of the record
c) For any other sufficient reason but the expression sufficient should
be read as meaning sufficiently of a kind analogous to (a) and (b)
above.

That from the facts of the instant case a new situation arose which
wasn’t a valid ground for review within the meaning of O.42 r 1. The
Court found that as the applicant was aggrieved by extraneous
circumstances, the correct course was for him to apply to court for a new
order as the previous order couldn’t be implemented.

In the case of Kalokoka vs. Nduga HCMA No. 497 /2014 an application
for Review of the judgment and orders of the court in Civil Appeal No.
001 of 2013 striking out the appeal with costs. It was brought under
Sections 82 and 98 of the Civil Procedure Act and Order 46 r 1&2 of the
Civil Procedure Rules. The first issue was whether there are grounds for
court to grant an order of review, and secondly was whether the
applicant is entitled to the orders sought in the application. Justice
Stephen Musota held on whether there are grounds for court to grant an
order of review that it is trite law just like the right of appeal, an order in
review is a creature of statute which must be provided for expressly. In
considering an application for review, court exercises its discretion
judicially as was held in the case of Abdul JafarDevji Vs Ali RMS Devji
[1958] EA 558. The law under which review is provided is Section 82 of
the Civil Procedure Rules and Order 46 of the Civil Procedure Rules. That
the grounds for review are clearly provided for and were outlined in FX
Mubwike Vs UEB High Court Misc. Application No.98 of 2005. These
are: 1. That there is a mistake or manifest mistake or error apparent on

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the face of the record.2. That there is discovery of new and important
evidence which after exercise of due diligence was not within the
applicant’s knowledge or could not be produced by him or her at the time
when the decree was passed or the order made.3. That any other
sufficient reason exists. That the applicant appears to rely on the 1st and
3rd reasons. Regarding whether there is a mistake or error apparent on
the face of the record, examples of such situation could be where a suit
proceeds ex-parte when there is no affidavit of service on record; see:
Edison Kanyabwere Vs PastoriTumwebaze SCCA 61/2014 or where
the court enters a default judgment when there is no affidavit of service
or where a summary judgment is entered under Order 36 when there is a
pending application for leave to appear and defend on record. Therefore,
misdirection by judicial officer on a matter of law cannot be said to be an
error apparent on the face of the record. An error apparent on the face of
the record was defined in Batuk K. Vyas Vs Surat Municipality AIR
(1953) Bom 133 thus:“No error can be said to be apparent on the
face of the record if it is not manifest or self-evident and requires
an examination or argument to establish it…………..” That in the
instant case therefore, no error apparent on the face of the record. What
is being raised by learned counsel for the applicant requires examination
and argument.

In the case of Mboizi v. Dauli& 4 Ors HCMA No. 80/2014 an

application for review of the judgment in CA No. HCT-04-CV-CA-106-
2010. It was brought under Section 33 of the Judicature Act, Section 82
and 94 of the Civil Procedure Act and O.46 r.1, 2 and 8 of the Civil
Procedure Rules. Justice Henry Kaweesa held that Review is provided for
under section 82 of the Civil Procedure Act and also O.46 r. 1 of the Civil
Procedure Rules. That while discussing the above provisions Sir
UdoUdoma in Nakabugo v. Attorney General (1967) (EA) 60, noted that:

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“The provision would only apply where there has been a discovery of new
and important matter or evidence which after the exercise of due
diligence was not within the knowledge or could not be produced by the
applicant at the time when the order or decree complained of was made.”
That the same was quoted in Joyce L. Kusulakweguya v.
HaderSomaru&NajibMubiru MSC App. 40 of 2007 by Hon. J. Kiryabwire
(as he then was) pointing out that; “the purpose of review is to guard
against injustice and abuse of court process because the court did not
have the correct evidence before at the time of the hearing due to no
culpable fault of an aggrieved person.” That the facts as enumerated show
that Applicant filed CS 0007/70 before Magistrate Grade 2 Court at
Kibuku. The Respondent appealed to the Chief Magistrate at Tororo
(Appeal 70 of1983). This appeal was dismissed on 18/September/1986.
Respondent again filed Mbale appeal 45 of 1999 before Chief Magistrate
which applicant argues was res judicata, filed out of time and without
leave of court to appeal out of time. The appeal was nonetheless
determined in favour of Respondent. Applicant appealed to the High
Court Mbale under CA.106/2010 and lost. Applicants allege that the
High Court also entertained the appeal in error since it arose from an
illegal appeal. It was further held that the application has shown and
brought to light three very important facts. 1 that the Respondent
fraudulently instituted Mbale Appeal 45/1999 well aware that he had
earlier on filed CA 70 of 1983 at Chief Magistrate’s Court of Tororo,
which was dismissed on 18th September 1986. The above appeal was
brought in total disregard of the law of procedures which limits appeals
and requires specific leave to appeal out of time. The appeal violated the
rule as to res judicata. It abuses the rules governing the jurisdiction of
courts. 2. The High Court in determining HCT Appeal 04-CV-CA-
106/2010 did not have the correct evidence before it at the time of the

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hearing and based itself on an irregular decision before the Chief

Magistrate Mbale which had no basis to Civil Suit 007/1979 of Kibuku.
3. The Respondent was not properly represented by the Lawyers in the
Mbale cases so as to draw the anomalies to the attention of both
appellate courts. That this is a proper case for review in which this court
must guard parties against injustice and abuse of court process. That it
has been demonstrated that at the time of hearing both the Chief
Magistrate Court of Mbale in Civil Suit Appeal 45 of 1999 and the High
Court in Civil Appeal No. HCT-CV-CA-106 of 2010 both courts did not
have the correct evidence before them at the time of the hearing and this
was not due to any culpable fault of the applicant; since both Counsel
never drew the illegal nature of the proceedings to the attention of both
appellate courts, this failure will not be visited on the applicant. That the
two appeals that is CA 45 of 1999 and HC-04-CA-106/2010 were null
and void, irregular and illegal and are accordingly set aside as prayed.

Review jurisdiction is applicable to consent judgments. The principles

applicable to review of consent judgments are the same principles
applicable to set aside a consent judgment.

In the case of Attorney General & Anor vs. James Mark

Kamoga&Anor SCCA No. 8 /2004 this second appeal arose from an
application the appellants filed in the High Court seeking review of a
consent judgment entered by the Deputy Registrar in a suit instituted by
the respondents against the appellants for recovery of land. The
application was heard and allowed by a judge of the High Court. However
on appeal by the respondents, the Court of Appeal reversed the decision
and dismissed the application, principally on the ground that the judge
had no power to entertain the application for review. Supreme Court held
that while section 83 of the CPA vests in the High Court supervisory

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jurisdiction to revise decisions of magistrates’ courts, which are

subordinate to it, section 82 of the CPA empowers the High Court to
review its own decisions. The conditions on which the two jurisdictions
are invoked are necessarily different; and so are the principles applicable
to their exercise.

That the powers of the registrar of the High Court are circumscribed.
Unlike a judge of the High Court who exercises the entire jurisdiction
vested in that court, a registrar of the High Court can only exercise such
jurisdiction of that court as is delegated by or under legislation. The
powers of registrars are set out in Order 50 of the CPR and enhanced in
Practice Direction No.1 of 2002. It suffices to say that the former confers
on the registrar powers to enter judgment in uncontested cases and
consent judgments, to deal with formal steps preliminary to the trial and
with interlocutory applications and to make formal orders in execution of
decrees; and the latter empowers the registrar to handle matters
governed by specified rules and Orders of the CPR, which do not include
any rule of Order 46. Clearly, the power to review judgments or orders of
the High Court, (including those entered by the registrar) is not among
the powers delegated to the registrar. That by entertaining the
application in the instant case the trial judge did not breach any rule.
That as regards Considerations in Review of Consent Decree - Section 82
of the CPA provides –“Any person considering himself or herself
aggrieved –

(a) by a decree or order from which an appeal is

allowed by

this Act but from which no appeal has been preferred;

or

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(b) by a decree or order from which no appeal is allowed…

may apply for a review of the judgment to the court which

passed

the decree or made the order….” (Emphasis is added)

That Order 46 rule 1 of the CPR reiterates this provision but adds a
condition to the effect that the applicant’s desire to apply for the review is
-

“from discovery of new and important matter or evidence,

which after the exercise of due diligence, was not within
his or her knowledge or could not be produced….at the
time when the decree was passed or the order made, or on
account of some mistake or error apparent on the face of
the record or for any other sufficient reason.” (Emphasis is
added)

That a party against whom a consent decree is passed may,

notwithstanding the consent, be wrongfully deprived of its legal interest
if, for example, the consent was induced through illegality, fraud or
mistake. Obviously, such party is aggrieved within the meaning of Order
46. That it should be noted that the provisions of Order 46 r.1 are so
broad that they are applicable to all decrees including consent decrees.
That the crucial issue for determination in the instant case is whether
there was sufficient reason for reviewing or setting aside the consent
judgment. That the principle upon which the court may interfere with a
consent judgment was outlined by the Court of Appeal for East Africa in
Hirani vs. Kassam(supra) in which it approved and adopted the
following passage from Seton on Judgments and Orders, 7th Ed., Vol. 1
p. 124:“Prima facie, any order made in the presence and with

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consent of counsel is binding on all parties to the proceedings or

action, and cannot be varied or discharged unless obtained by
fraud or collusion, or by an agreement contrary to the policy of the
court … or if the consent was given without sufficient material
facts, or in misapprehension or in ignorance of material facts, or
in generalfor a reason which would enable a court to set aside an
agreement.” Subsequently, that same Court reiterated the principle in
Brooke Bond Liebig (T) Ltd. vs. Mallya (supra) and the Supreme Court
of Uganda followed it in Mohamed Allibhai vs. W.E. Bukenya and
Another Civil Appeal No.56 of 1996 (unreported). It is a well settled
principle therefore, that a consent decree has to be upheld unless it is
vitiated by a reason that would enable a court to set aside an agreement,
such as fraud, mistake, misapprehension or contravention of court
policy. This principle is on the premise that a consent decree is passed
on terms of a new contract between the parties to the consent judgment.
It is in that light that I have to consider the consent decree in the instant
case. That the consent decree was not shown to be vitiated in any way to
warrant interference through review or otherwise.

In the case of Mapalala vs. BBC (2002) 1 E.A 132 the Court found that
in this case that the grounds for review are set out in order 42 R 1 and
that the court gives judgment on orders sought in the plaint, that to
allow a review application on a basis of difficulty in execution is not only
an abuse of court process but also lead to endless litigation.

Any aggrieved party can apply for review, he / she need not be a party.
Both sec 82 and O.46 allow any person who considers himself to be
aggrieved by a decree in order to apply to the court that passed that
decree or order for review. In the case of Adonia vs. Mutekanga 1970
E.A 479 Court found that the right to apply for review isn’t restricted to

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parties but it’s available for any person considering himself aggrieved. In
this case the order wasn’t made against the respondent but it operated
against him making him an aggrieved party for purposes of review.

A person is deemed to be legally aggrieved where he has suffered a legal

grievance in the sense that he had a direct interest in the subject matter
and has been injuriously affected.

In the case of Mohammed Alibhai vs. Bukenya SCCS No. 56/119 the
appellant who didn’t disclose that he was an attorney applied for review.
The court found that he couldn’t have suffered any legal grievance and so
he couldn’t apply for review of the order of court.

Whereas O.46 provide for specific grounds and the applicant can only
succeed in satisfaction of one at least one of the 3 grounds, s.82 confers
wide discretion on the court i.e. O.46 has restriction but s.82 is so wide.
In the case of Uganda Commercial Bank vs. Mukoome Agencies
[1982] HCB 22 Court of Appeal held that section 83 of the Civil
Procedure Act must be read without any limitation imposed by order 42
(now 46) r 1 of the Civil Procedure Rules. That the words ‘any other
sufficient reason’ are to be construed ejusdem generis with one or other
of the two preceding classes of the case under O.42 r 1 of the CPR.

The jurisdiction to entertain an application for review is vested in the

same court that passed the decree or made the order. In the case of Re
Dr. John Chrizestom Kiyimba Katto M.C No. 29/1989 held that under
O.42 r 1 the application for review should come before the very judge
who made the order it is sought to review.

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Where the presiding officer has left the bench or is no longer at that
particular station, then the new judge / magistrate will entertain that
application. In the case of Henry Munyangaizi vs. General Machinery
Ltd HCCS No. 468 of 1993 it was held that where a case is admitted to
review by one judge and is afterwards tried by another, the new judge
must confine himself to the points directed by the other for the review. A
Judge granting a review on one point has no power to go into or decide a
matter already finally adjudicated upon. Secondly that parties cannot be
allowed to amend pleadings after the order for review.

An application for review is a bar to subsequent orders for review. No

application to review an order made on application to review of a decree
or order made on review shall be entertained-O46 r 7 CPR.

REVISION OF JUDGEMENTS /DECISIONS

It is also a situation where higher court sits on the judgment lower court.
These powers are only available to the High Court of Uganda (and no
other court). It is provided for under section 83 CPA. That the High Court
may call for the record of any case which has been determined under the
Act by any magistrate’s court, and if that court appears to have—

(a) exercised a jurisdiction not vested in it in law;

(b) failed to exercise a jurisdiction so vested; or
(c) acted in the exercise of its jurisdiction illegally or with material
irregularity or injustice, the High Court may revise the case and
may make such order in it as it thinks fit; but no such power of
revision shall be exercised—
(d) unless the parties shall first be given the opportunity of being
heard; or

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(e) where, from lapse of time or other cause, the exercise of that power
would involve serious hardship to any person.

In the case of Bameka vs. Nviri (1973) ULR 134 it was brought to the
attention of court following a complaint by the plaintiff concerning the
manner in which the trial magistrate was alleged to have handled the
litigation. The plaintiff had alleged corruption on part of the trial
magistrate to the Chief Justice although he did not repeat the allegations
in the proceedings to the High Court. The High Court found that it had
powers of revision under the Civil Procedure Act. It observed further that
the mere fact that the court came to a wrong decision even on a point of
law was not sufficient to constitute an illegality or irregularity i.e. an
erroneous decision wasn’t for itself a ground for revision. A distinction
was drawn between illegality and irregularity in the case. The court said
that a distinction has been drawn between cases in which a judge omits
to do something which statute enacts shall be done and a case in which
a judge does something which a statute says shall not be done. In the
former case the omission may not amount to more than an irregularity in
procedure, in the latter the doing of the prohibited thing is ultravires and
illegal and without jurisdiction. The court observed that material
irregularity implies only on committee of an error or procedure whilst
acting illegally means something less or not. However it is clearly that
irregularity is something less than an illegality and before the court will
interfere it must be shown to be material. That is, an irregularity which
has prejudicially affected the merits of the case.

In the case of Johnrick Trading Co. & Property Consultants Ltd vs.
Electrol Controls Switch Gear Ltd (Civil Revision Cause No. 009 of
2014) (Arising from the Chief Magistrate’s Court of Nabweru Civil Suit No.
104 of 2014) an application for revision of the decision of the Magistrate

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Grade 1 Nabweru Court brought by way of Notice of Motion under

Section 33 of the Judicature Act, Section 83 and 98 of the Civil
Procedure Act and Order 52 rule 1, 2 & 3 of the Civil Procedure Rules.
The first issue was whether this is a proper case for revision. Justice
Stephen Musota held that according to the decision in Matemba versus
Yamulinga [1968] EA 643, for a case to be proper for a revision order it
must be a case decided by any Magistrates Court and the complaint
must relate to the exercise of jurisdiction. That the meaning of the
phrase case decided for purposes of revision was considered in the case
of Rothblum Vs EbrahimHajec Ltd [1963] EA 47 to be wider than a
suit. It was held that even an order setting aside an expartedecree is a
case decided for purposes of revision. Therefore an order made by the
lower court to proceed with formal proof was a case decided by that
court. That in the instant case, after a default judgment was entered in
favor of the respondent, the applicant applied for the same to be set aside
and the application was fixed for 30th September 2014 as per annexture
“C” to the affidavit in reply. Before the application could be disposed of,
the learned trial Magistrate on an earlier date of 1st September 2014
ordered that the main suit proceeds for formal proof. That this was
materially irregular and it tantamount to a case decided for purposes of
revision as regards the manner in which the trial Magistrate exercised
her jurisdiction. The second issue was whether there are grounds for
revision. It was held that according to Section 83 of the Civil Procedure
Act, the grounds for revision are: 1. Failure to exercise jurisdiction vested,
2. Exercising jurisdiction not vested in court. 3. Exercising jurisdiction
vested but illegally or with material irregularity. That in the instant case,
whereas the learned trial magistrate is vested with jurisdiction to
entertain a matter for formal proof where an interlocutory judgment had
been entered, it was an irregularity on her part to order for formal proof

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while there was a pending application to set aside the interlocutory

judgment moreover fixed by her. This was an irregularity which calls for
an order of revision by this court. The third issue was whether the
applicant is entitled to the orders sought in the application. It was held
that court will therefore make a revision order in this matter bearing in
mind that none of the parties will encounter serious hardships and in
the interest of justice. Consequently court found that the learned
Magistrate exercised jurisdiction vested in her with material irregularity.
Her order to proceed with formal proof will be set aside. The application
to set aside the default judgment should be heard and disposed of before
any other proceedings in the matter and costs to be in the cause.

The section relates only to jurisdiction and the High court will not
interfere merely because a lower court allowed an application which was
barred by limitation. In the case of Matemba vs. Yamulinga (1968) EA
643, Mustafa J held that; “It will be observed that the Section
applies to jurisdiction alone, the irregular exercise or non-exercise
of it, or the illegal assumption of it. The section is not directed
against conclusion of the law or fact in which the question of
jurisdiction is not involved….as regards alleged illegality or material
irregularity urged by the applicant, according to the case of Amir
Khan vs SheoBaksh Singh (1885) 11 Cal. 6; 11 1. A 237 a Privy
Counsel case it is settled that where a court has jurisdiction to
determined a question and it determines that question, it cannot be
said that it has acted illegally or with material irregularity because
it has come to erroneous decision on a question of fact or even of
law.”

In the case of Paskali Juma Wasike vs. Alex Onyango HCMA No.
04/2010 Justice Stephen Musota held that the Constitution of Uganda

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and the Judicature Act give the High Court unlimited original
jurisdiction in all matters, be they civil or criminal. These powers cannot
be removed by implication. For a written law to oust such jurisdiction, it
must expressly state so which is not the case under the Local Council
Courts Act. That in view of S.40 of the Local Council Courts Act, the High
Court has supervisory powers over Local Council Courts and for this
purpose those courts are subordinate to the High Court. It is common
knowledge that the high court can either on its own motion usually while
inspecting Magistrates Courts (in this case Local Council Courts) or
when its attention is drawn by 3rd parties to certain irregularities:“Call for
the record of any case which has been determined by any subordinate
court or Magistrate’s Court” and for reasons set forth in S.83 revise the
said case making such order as it thinks fit. That the law of Revision
applies to jurisdiction alone, the irregular exercise or non-exercise or the
illegal assumption of it. The law is not directed against conclusions of
law or fact in which the question of jurisdiction is not involved. Where a
court has jurisdiction to determine a question and it determines it, it
cannot be said that it acted illegally or with material irregularity because
it has come to an erroneous decision on a question of fact or law.
MUTEMBA V. YAMULINGA [1968] EA 643

Court can revise a decision under s.83 CPA even where an appeal would
lie.

In the case of Twine Amos vs. Tamusuza James (Civil Revision No. 11
of 2009 the applicant brought the application under the provisions of s.
83 of the Civil Procedure Act (CPA). He sought for the revision of the
proceedings in Mukono C/S 59 of 2008 and for an order setting aside the
judgment of Magistrate GI .Justice Irene Mulyagonja held that the
Black’s Law Dictionary (9th Edition) defines revision as “a re-examination

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or careful review for correction or improvement” or “an altered version of

work.” That in the case of Hitila v. Uganda [1969] 1 E.A. 219, the Court
of Appeal of Uganda held that in exercising its power of revision the High
Court could use its wide powers in any proceedings in which it appeared
that an error material to the merits of the case or involving a
miscarriage of justice had occurred. It was further held that the Court
could do so in any proceedings where it appeared from any record that
had been called for by the Court, or which had been reported for orders,
or in any proceedings which had otherwise been brought to its notice.
That it was ruled in a recent decision in the case of Munobwa Mohamed
v. Uganda Muslim Supreme Council, Civil Revision No. 001 of 2006,
the powers of this court in revision are not limited. The powers do not
seem to be precluded in cases where an appeal could be preferred. This
is fortified by the decision in Charles Kasirye v. M. D. Patel [1972]
ULR 106, where Faud, J. ruled that unlike the position in India under s.
115 of the Indian Code of Civil Procedure the revisional power of the High
Court was taken away where an appeal lay. Perusal of the Indian Code of
Civil Procedure (1908, as amended) shows that s.115 (2) thereof provides
as follows”“(2) The High Court shall not, under this section, vary or
reverse any decree or order against which an appeal lies either to
the High Court or to any Court subordinate thereto.” That the CPA in
this jurisdiction has no such provision. Therefore this court can revise a
decision under s.83 CPA even where an appeal would lie. Suffice it to add
that ordinarily, when this court entertains an appeal, it often revises the
proceedings of the lower court. That therefore the applicant’s failure to
appeal the decision refusing to set aside the interlocutory judgment in
order that he may also have leave to file a WSD and defend the suit did
not in any way bar him from bringing this application. The application

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was therefore properly before court under the provisions of s.83 CPA and
was not an abuse of court process.

Revision is not available were it is sought belatedly to the detriment of

third parties who may be required in the subject matter of the suit. In
the case of Kabwengure vs. Charles Kanjabi [1977] HCB 89 held that
under the proviso to section 84 of the Civil procedure Act, the Court
cannot exercise its provisional power where there was lapse of time or
other cause, the exercise of such power would involve serious hardship
to any person.

However in the context of the orders of the registrar of the high court, no
power of revision is available as their decision are deemed to be of a high
court (notwithstanding) that they may be at level of the chief magistrate.
The Court of Appeal held in Ddegeya Trading Stores (U) Ltd vs. URA
Civil Appeal No.44 of 1996 turned on the finding that the High Court’s
revisional power applies to decisions of the magistrates’ courts only. The
court said –“The Registrar, his deputy and/or assistant are officers
of the High Court. They are not governed by the Magistrates Courts
Act when they sit as a court. Under Order [50] Rule 4 of the Civil
Procedure Rules a Registrar presides over a civil court when
dealing with matters under Order [50] Rules 1, 2, & 3 of the Civil
Procedure Rules. Under the Advocates (Remuneration and Taxation
of Costs) Rules under which the proceedings, the subject matter of
this appeal took place, the Registrar or taxing officer was not a
magistrate’s court. He proceeded to deal with the bill of costs as
an officer of the High Court to which the bill of costs had been
presented. We agree that the learned judge erred in law when he
applied section [82] of the Civil Procedure Act which in the
circumstances was inapplicable.”

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See also A.G & Uganda Land Commission vs. James Mark Kamoga

The appropriate relief available to a party aggrieved with an order of a

registrar is to seek for review before a judge under s.82 and O.46 CPR or
to appeal under O.50 r 8 of the rules. See Shumuk Investments Ltd vs.
Bonny Katatumba

A court cannot entertain an application an application for revision except

where the adverse party is duly notified by way of serving a hearing
notice.

The procedure of application for revision is that an aggrieved party writes

to the High court registrar drawing his attention to irregularity of a
subordinate court and request that the matter be brought before a judge.
See LDC VS. Edward Mugalu (1990-1991) 1 KALR 103. Also see s. 39(2)
Judicature Act.

However, in practice, the High Court has always insisted that the
aggrieved person should make a formal application to court by way of
notice of motion.

Major Roland V. Kakooza Mutale [2000-2005] HCB

APPEALS

An appeal refers to a proceeding taken to rectify an erroneous decision of

court by bringing it before a higher court. The appellate process is a grim
reminder that courts to make mistakes. So it is in the pursuit of justice
that higher courts with more personnel, with more experience should
sanction and criticize, and in many cases overturn decisions of their
junior colleagues where they are persuaded that justice has been
compromised.

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Questions as to the possibility of appealing may arise during the

interlocutory stages of an action or after trial and judgment. An appeal is
an application to set aside or vary the decision of another tribunal /
court on the ground that it was wrongly made. In the case of F X
Mubuuke vs. UEB HCMA No.98/2005 defined an appeal as a rehearing
by the appellate court of substantial question of law and fact taken by an
aggrieved litigant. The rehearing deals with opening up of all issues the
subject of appeal.

There is no right of appeal against judgment or order of court of

competent jurisdiction unless the statute expressly so provides. In the
case of Shah vs. A.G No.4 [1971] E.A held that the right to appeal must
be conferred by the relevant Act.

Often a party to an action which has been tried by the court would be
sufficiently dissatisfied with the court’s decision and sufficiently hopeful
that it must be reversed or varied on appeal to the higher court-refers the
matter to higher court requires it to exercise its appellate jurisdiction.
The appellant may wish to complaint that the trial court was mistaken in
its view of the law or the application of the evidence or that it wrongly
admitted or excluded certain evidence. An appeal may be given before
any final decision has been given at the trial against some decision of the
court on an interlocutory or procedural matter. Any person who was a
party to the proceedings in the court of original jurisdiction may appeal.
A person bringing the appeal is called the appellant and the person
against whom the appeal is brought is called the respondent.

The procedure of appeal is a complaint against the decision which court

made be it fact or law. The relevant law include the constitution which
define the hierarchy of courts, Judicature Act which sets out powers of
the appellate court, Civil procedure Act, Magistrate Court Act, Civil

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Procedure Rules, Court of Appeal Directions 1996, Supreme Court Rules

Directions 1996 and any other law applicable.

Appellate Jurisdiction.

In general the right of appeal must be given by an Act of parliament

although there are situations where an appeal is as of right. In other
cases especially from interlocutory matters appeals lie usually only by
leave of the court. There is no such thing as inherent appellate
jurisdiction. Any party who seeks to avail himself/herself of the right of
appeal must strictly comply with the conditions prescribed by the
statute.

The Supreme Court.

Under Art. 132(1) of the Constitution, the Supreme court is the highest
appellate court and final court of Appeal in civil matters. An appeal shall
lie to the Supreme Court from such decisions of the Court of Appeal as
may be prescribed by law-Art. 132 (2) of the Constitution. Section 6 (1)
Judicature Act Cap.13 provides for the powers. Provides that an appeal
shall lie as of right to the Supreme Court where the Court of Appeal
confirms, varies or reverses a judgment or order, including an
interlocutory order, given by the High Court in the exercise of its original
jurisdiction and either confirmed, varied or reversed by the Court of
Appeal.

Section 6 (2) J.A provides that where an appeal emanates from a

judgment or order of a chief magistrate or a magistrate grade I in the
exercise of his or her original jurisdiction, but not including an
interlocutory matter, a party aggrieved may lodge a third appeal to the
Supreme Court on the certificate of the Court of Appeal that the appeal
concerns a matter of law of great public or general importance, or if the

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Supreme Court considers, in its overall duty to see that justice is done,
that the appeal should be heard.

In the case of Lwanga VS. Kabagambe Civil Application No. 125 of

2009 anapplication by notice of motion brought under Section 6(2) of the
Judicature Act and Rule 40(2), 41, 42(2) and 43(1) of the Rules of this
Court orders that a Certificate be granted to the applicant to appeal to the
Supreme court and Costs of the application be provided for. The case
originated in Mityana Chief Magistrates Court (Civil Suit No. 34/2001
(before Magistrate Grade I). The Applicant (then Plaintiff) sued the
respondent (then the defendant) for trespass on his land. In his Plaint he
described himself as "owner" and also alleged that his late father had a
lease offer on the land the subject hereof. He got judgment in his favour,
against which the respondent / defendant appealed, and won (High Court
Nakawa Civil Appeal No. 27/ 04). The Applicant then appealed to the
Court of Appeal on the issues inter alia, that the Appellate High Court
Judge failed to appreciate the nature of the Plaintiff's claim and cause of
action; failure to evaluate the evidence on record, and as to whether he
had any claim in the suit land. Their Lordships on Appeal dismissed the
Appeal.

On an application for certificate to appeal to the supreme court, Court of

Appeal held that section 6(2) of the Judicature Act Cap 13 under which
the application is brought stipulates as follows:- Where an appeal
emanates from a judgment or order of a chief magistrate or a
magistrate grade I in the exercise of his or her original
jurisdiction, but not including an interlocutory matter, a party
aggrieved may lodge a third appeal to the Supreme Court on the
certificate of the Court of Appeal that the appeal concerns a
matter of law of great public or general importance, or if the

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Supreme Court considers, in its overall duty to see that justice is

done, that the appeal should be heard.”) That it appears that the
Court of appeal may only issue a Certificate under the above law in the
following instances; Where the intended appeal to the Supreme court
concerns a matter of law of great Public importance.(ii) Where the
intended appeal raises a matter of law of general importance” That
for the court of appeal to grant a Certificate sought by the applicant
herein, it must be satisfied that the intended appeal to the Supreme
Court concerns a matter of law. That, that matter of law must be either
of great public importance or of general importance. The law does not
define the terms ‘great importance and or general importance’ referred to
in Section 6(2) of the Judicature Act. Guidance in this matter may be
sought from a recent decision of the Supreme Court of Kenya in the case
of Hermanus Phillippus Steyn vs Giovanni Gnecchi-Ruscone
Application No. 4 of 2010(Supreme Court of Kenya) in which that
Court whilst dealing with a similar matter stated as follows:- 1. “A
matter of general public interest could take different forms for
instance, an environmental phenomenon involving the quality of
air or water which may not affect all people, yet it affected an
identifiable section of the population, a statement of law which
may affect a considerable number of people in their commercial
practice or in their enjoyment of fundamental or contractual rights
or a holding on law which may affect the proper functioning of
public institutions of governance or the Court's scope for
dispensing redress or the mode of discharge of duty by public
officers. 2. The governing principles that a matter before court
merited certification as one of general public importance were
:i for a case to be certified as one involving a matter of general
public importance, the intending appellant ought to have satisfied

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the Court that the issue to be canvassed on appeal was one the
determination of which transcended the circumstances of the
particular case and had a significant bearing on the public
interest; ii. where the matter in respect of which certification was
sought raised a point of law, the intending appellant ought to have
demonstrated that such a point was a substantial one, the
determination of which would have a significant bearing on the
public interest; iii. such question or questions of law must have
arisen in the lower courts and must have been the subject of
judicial determination; iv. where the application for certification
had been occasioned by a state of uncertainty in the law arising
from contradictory precedents, the Supreme Court could either
resolve the uncertainty as it may determine, or refer the matter to
the Court of Appeal for its determination; v. mere apprehension of
miscarriage of justice in a matter most apt for resolution in the
lower superior courts was not a proper basis for granting
certification for an appeal to the Supreme Court. The matter to be
certified for a final appeal in the Supreme Court ought to fall
within the terms of Article 163 (4)(b) of the Constitution; vi. the
intending applicant had an obligation to identify and concisely
set out the specific elements of general public importance which he
or she attributed to the matter for which certification was sought;
vii. determinations of fact in contests between parties were not by
themselves, a basis for granting certification for an appeal before
the Supreme Court.”That the onus is on the applicant to satisfy the
Court that indeed the question intended to be determined on appeal is
one of great public or general importance. That the question set out by
the applicant referred to above appears to be a question of fact, which is
not provided for under Section 6(2) above in respect of an application

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before this court. That unlike the Supreme Court, the power of the Court
of Appeal in an application of this nature are restricted. In the case of
Namudu Christine vs Uganda Criminal Appeal No. 3 of 1999
(Supreme Court) (Unreported). Wambuzi CJ noted as follows:-“Under
subsection (5) of S.6, this Court will grant leave if the court, in its
overall duty to see that just is done, considers that the appeal
should be heard. In other words this court is not bound by the
restrictions placed on the Court of Appeal, when that court is
considering an application for a certificate. The Court of Appeal
grants a certificate where it is satisfied:(a) that the matter raises a
question or questions of law of great public importance; or (b) that
the matter raises a question or questions of law of general
importance. On the other hand, this Court will grant leave if it
considers that in order to do justice the appeal should be heard.
Anything relevant to doing justice will be considered including
questions of law of general or public importance. It appears to us
that in deciding whether or not to grant leave we are not restricted
to questions of law like the Court of Appeal. We have power to
consider other matters.”That the Court of Appeal therefore cannot
consider other matters outside the ambit of Section 6(2) of the
Judicature Act and the applicant has not demonstrated to the
satisfaction of the Court that the intended appeal raises a question or
questions of law of great public importance or of general importance as
defined by the law.

Section 7 J.A provides that for the purposes of hearing and determining
an appeal, the Supreme Court shall have all the powers, authority and
jurisdiction vested under any written law in the court from the exercise
of the original jurisdiction of which the appeal originally emanated.

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Section 8 (1) J.A provides that a single justice of the Supreme Court may
exercise any power vested in the Supreme Court in any interlocutory
cause or matter before the Supreme Court. e.g. application of security for
costs, extension of time etc. However any person dissatisfied with the
decision of a single justice in the exercise of a power is entitled to have
the matter determined by a bench of three justices of the Supreme Court
which may confirm, vary or reverse the decision through a process called
reference.

Court of Appeal

Art. 134(2) provide that an appeal shall lie to the Court of Appeal from
such decision of the High Court as may be prescribed by law. Section 10
J.A provides that an appeal shall lie to the Court of Appeal from
decisions of the High Court prescribed by the Constitution, Judicature
Act or any other law.

S.66 CPA provides that unless otherwise expressly provided in the Act,
an appeal shall lie from the decrees or any part of the decrees and from
the orders of the High Court to the Court of Appeal.

See Pius Niwagaba vs. LDC CACA No. 18/2005

UNEB vs. Mparo General Contractors SCCA No. 19/2004

Section 11 J.A provides that for the purpose of hearing and determining
an appeal, the Court of Appeal shall have all the powers, authority and
jurisdiction vested under any written law in the court from the exercise
of the original jurisdiction of which the appeal originally emanated.

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Section 12 J.A a single justice of the Court of Appeal may exercise any
power vested in the Court of Appeal in any interlocutory cause or matter
before the Court of Appeal and any person dissatisfied with the decision
of a single justice of theCourt of Appeal in the exercise of any power shall
be entitled to have the matter determined by a bench of three justices of
the Court of Appeal which may confirm, vary or reverse the decision.

The High Court

Under Art. 139(1) of the constitution and Section 14 (1) J.A the High
Court has appellate and other jurisdiction as may be conferred on it by
the Constitution or this Act or any other law.

Section 16 J.A provides that subject to the Constitution, the Judicature

Act and any other law, the High Court shall have jurisdiction to hear and
determine appeals which lie to it by virtue of any enactment from
decisions of magistrate’s courts and other subordinate courts in the
exercise of their original or appellate jurisdiction.

Under O.50 R 8 CPR any person aggrieved by any order of the registrar
may appeal from the order to the High Court and the appeal shall be by
notice of motion.

The magistrate Act has also got provisions of powers of appeal. Section
220 provides that subject to any written law and except as provided in
this section, an appeal shall lie from the decrees or any part of the
decrees and from the orders of a magistrate’s court presided over by a
chief magistrate or a magistrate grade I in the exercise of its original civil
jurisdiction, to the High Court, from the decisions, judgments and orders
of a magistrate’s court, whether interlocutory or final, presided over by a
magistrate grade II, to a court presided over by a chief magistrate, from
decrees and orders passed or made in appeal by a chief magistrate, with

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the leave of the chief magistrate or of the High Court, to the High Court if
the decision against which an appeal is intended involves a substantial
question of law or is a decision appearing to have caused a substantial
miscarriage of justice.

Section 220 (5) MCA and Section 67(2) CPA no appeal shall lie from a
decree passed or from a decision, judgment or order given or made, as a
result of the consent of the parties. A consent judgment can only be set
aside by the court which gave such judgment.

In the case of Afrique Co-op Society vs. URC (2002) 1 EA 1 Counsel for
the applicant and respondent came to an agreement regarding the
amount payable to the applicant and an agreement was recorded in the
consent judgment and a decree by the trial judge. The respondent
subsequently changed counsel and applied for the consent judgment to
be set aside. Counsel filed notice of appeal and the applicant applied to
strike out a notice of appeal on the ground inter alia that no appeal could
lie against a consent judgment. The court found that Section 69(2) CPA it
is provided that no appeal can lie from decree passed by court with the
parties consent. In this case the record shown that the advocate who
entered the consent judgment had been duly instructed to represent the
respondent and had been acting within his authority when the he
consented consent judgment.

Under section 60 Advocates Act any person affected by an order or

decision of a taxing officer may appeal within thirty days to a judge of the
High Court who on such appeal may make any order that the taxing
officer might have made.

Under section 32(2) (d) Local Council Courts Act 13 of 2006 an appeal
shall lie from decrees and orders made on appeal by a chief magistrate,

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with the leave of the Chief magistrate or of the High Court to the High
Court.

Under section 145 Local Government Act, a person aggrieved by the

determination of a lower court on hearing an election petition may appeal
to the High Court or Court of Appeal against the verdict.

Chief Magistrate

Under s.220(1)(b) Magistrate’s Court Act, an appeal shall lie from the
decisions, judgments and orders of a magistrate’s court, whether
interlocutory or final presided by a magistrate grade II to a court presided
over by a chief magistrate.

Under section 32(2)(c ) an appeal shall lie from the judgment or orders of
a town, division or sub county local council court to a court presided
over by a Chief Magistrate.

General provisions relating to appeals.

Sec. 80 CPA provides for power of appellate court. It provides that

Subject to such conditions and limitations as may be prescribed, an
appellate court shall have power (a) to determine a case finally; (b) to
remand a case; (c) to frame issues and refer them for trial; (d) to take
additional evidence or to require such evidence to be taken; (e) to order a
new trial.

The appellate court shall have the same powers and shall perform as
nearly as may be the same duties as are conferred and imposed by the
Act on courts of original jurisdiction in respect of suits instituted in it.

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General Principles and Powers of the 1ST 2ND and 3RD Appellate
Courts.

1st Appellate Court

The duty of the 1st appellate court is to subject the entire evidence
received in the lower court to a fresh and exhaustive scrutiny and come
to its own conclusion and it is under no obligation to agree with the
decision of the trial court if it finds that the evidence on record presumes
otherwise

In the case of Victorious Education Services Ltd vs. Mega Consults

Ltd HC Civil Appeal No. 7 of 2014 anappeal arose from the decision of
the learned Chief Magistrate of Mengo. In the memorandum of Appeal
the ground was that the learned trial Chief Magistrate erred in law
and fact; when he selectively evaluated the evidence on record,
thus arriving at a wrong conclusion. Justice Peter Adonyo stated
that the duty of the court is now well settled in that the court could
subject the entire evidence received in the lower court to a fresh and
exhaustive scrutiny and come to its own conclusion and it is under no
obligation to agree with the decision of the trial court if it finds that the
evidence on record presumes otherwise as was pointed out in holding in
the case of Rev. Richard Mutazindwa v J.B. Agaba & 3 others CACA
No. 40 of 2012. That the other cardinal principle which guides the
court as the first appellate court is that since the matter is coming on
appeal for the first time the parties are entitled to obtain from the court
decisions on each issue of fact as well as of law since court is entitled to
weigh any conflicting evidence and draw own appropriate inference and
conclusion to each of the issue of fact and law proposed in the lower
court and as was directed by the Supreme Court through the decision of
Gauldino Okello Ag JSC in the case of Margret Kato & Joel Kato v

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Nulu Naluwoga SCCA No 03 of 2013 when it cited with approval the

decision in the English case of Coughlan v Cumberland [1898] 1 Ch.
704. That the Supreme Court held ;“…even where as is in this case
the appeal turns on a question of fact the Court of Appeal (as a
first appellate Court) has to bear in mind that its duty is to rehear
of the case and the court must reconsider the material before the
judge with such other materials as it may have decided to admit.
The court must make up its mind not disregarding the judgment
appealed from but carefully weighing and considering it and not
shrinking from overruling it if on full consideration the court
comes to the conclusion that the judgment is wrong…”.That this
court being a first appellate court is bound to follow that pronouncement
of the Supreme Court since that court is the highest superior court of
record in Uganda and all the material evidence has been received in the
lower court which included documentary exhibits and all properly
admitted oral evidence.

In the case of Tight Securities Ltd vs. Chartis Uganda Insurance

Company Ltd & Anor HCCA No. 16/2014 Justice Hellen Obura stated
that the role of court as the 1st appellate court was discussed by Mulenga
JSC (RIP) in Fr. Narsensio Begumisa and Ors v Eric Tibebaga S.C.CA
No. 17/2002. He stated thus: “It is a well-settled principle that on a first
appeal, the parties are entitled to obtain from the appeal court its own
decision on issues of fact as well as of law. Although in a case of
conflicting evidence the appeal court has to make due allowance for the
fact that it has neither seen nor heard the witnesses, it must weigh the
conflicting evidence and draw its own inference and conclusions”.

In the case of Stepheno Baraba vs. Kimuli 1977 HCB 137, this was an
appeal against the judgment of a chief magistrate in his appellate

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jurisdiction. The appellant had instituted a suit claiming that the

respondent had encroached on his land. He lost the suit and appealed to
the Chief magistrate. He lost the appeal and filed a second appeal to the
High Court. The main contention of appeal was that the respondent’s
witness were new in the area and did not know the boundaries between
the appellants and the respondents. The appellant’s evidence in the trial
court was supported by the Chief in the area who gave the land to the
appellant. The trial magistrate and the Chief magistrate failed to take
this piece of evidence into consideration and based his judgment on what
one chief said at a locus in quo but who was not called to testify as a
witness. On appeal the Court found that both the trial and the first
appellate Court should have addressed their mind to the fact that the
respondent’s witness never knew the boundaries. It was very fundament
al irregularity for the trial magistrate and the Chief magistrate on appeal
to have relied on what a chief who was not called as a witness had stated
at locu in quo. The court found that the law with regard to the approach
to be adopted by the first appellate court is that the evidence submitted
before it must be examined a fresh and exhaustively so that it weights
the conflicting evidence and draws its own conclusion. It’s not a function
of the appellate court merely to scrutinize the evidence to see if there was
some evidence to support the lower court findings and conclusion. That
it must make its findings and conclusion, that only which can it decide
whether the magistrate’s findings can be supported. However in so doing
it should make the allowance that the trial court has the advantage of
hearing and seeing the witnesses. The Court of appeal has power to draw
inferences or fact and where it has all the necessary material before it
this power may enable it in reserving the decision of the court below itself
rendering appropriate judgment instead of rendering a new trial. That
this is a nature of revaluation of evidence.

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2ndAppellate Court

Section 72 CPA provides that except where otherwise expressly provided

in the Act or by any other law for the time being in force, an appeal shall
lie to the Court of Appeal from every decree passed in appeal by the High
Court, on any of the following grounds, namely that—

(a) the decision is contrary to law or to some usage having the force of
law;
(b) the decision has failed to determine some material issue of law
orusage having the force of law;
(c) a substantial error or defect in the procedure provided by the Act
or by any other law for the time being in force, has occurred which
may possibly have produced error or defect in the decision of the
case upon the merits.

An appeal lies as of right from the decree of the high court exercising
appellate jurisdiction as a first appellate court. There is no need to apply
for leave provided the appeal is founded on the grounds under section 72
CPA. In the case of Matendegyene & Ors vs. Kasikura & Ors [1992] IV
KALR 89 held that sec.72 CPA provides the grounds upon which the 2nd
appeal to the Court of Appeal may lodge in the court of appeal.

An appeal may lie under the section from an appellate decree passed ex
parte.

The second appellate court the appeal lies on permitted questions of law
or fact whose mandate is to ascertain whether the 1st appellate court
exercised the duty of evaluating the entire evidence on record.

In the case of Stanbic Bank Uganda Ltd vs. Uganda Crocs Ltd SCCA
No. 4 of 2004 Supreme Court stated that in BancoArabeEspanol vs.

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Bank of Uganda (1998) LLR 84 (SCU)this court referred to what it had

said in Kifamunte Henry vs. Uganda (1997) LLR 72 (SCU)with
approval:"it does not seem to us that except in the clearest of cases, we
are required to re-evaluate evidence like a first appellate court. On second
appeal, it is sufficient to decide whether the first appellate court in
approaching its task, applied or failed to apply such principles. See: D.R
Pandya vs. R (1957) E.A 336; Kairu Vs. Uganda (1978) HCB 123This
Court will no doubt consider the facts of the appeal to the extent of
considering the relevant point of law or mixed law and fact raised in any
appeal, if we re-evaluate the facts of each case wholesale we shall
assume the duty of the first appellate court and create unnecessary
uncertainty, we can interfere with the conclusions of the Court of Appeal if
it appears that in consideration of the appeal as a first appellate court, the
Court of Appeal misapplied or failed to apply the principles set out in such
decisions such as Pandya (Supra), Ruwala (Supra) Kairu (Supra)".

The duty of the 2nd appellate Court considered in Kabalega vs.

Muganga 1987 HCA No. 7 of 1987 Court found that the duty of the
second appellate court is to consider whether the first appellate court
properly re-evalavuated the evidence on record. In this case it was on
record that the 1st appellate court found part of the record before trial
missing and yet didn’t consider the effect of the missing part of the trial.
On the second appeal it was found that in the absence of this vital
evidence the first appellate court couldn’t be said to have examined the
evidence before it exhaustively.

In the case of Alice Janet Namisango vs. Chrisestom Galiwango

[1986] HCB 37 Odoki J held that in general second appeals were
normally restricted to questions of law. As regards second appeals from

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magistrate’s courts to the High Court, the Magistrates Court Act

appeared to allow only appeals involving points of law.

3rdAppellate Court

Section 6(2) Judicature Act provides that where an appeal emanates from
a judgment or order of a chief magistrate or a magistrate grade I in the
exercise of his or her original jurisdiction, but not including an
interlocutory matter, a party aggrieved may lodge a third appeal to the
Supreme Court on the certificate of the Court of Appeal that the appeal
concerns a matter of law of great public or general importance, or if the
Supreme Court considers, in its overall duty to see that Justice is done,
that the appeal should be heard. See the case of Lwanga VS.
Kabagambe Civil Application No. 125 of 200.

Section 73 CPA provides that where an appeal emanates from a

judgment of a magistrate grade II but not including an interlocutory
matter, a party aggrieved may lodge a third and final appeal to the Court
of Appeal on the certificate of the High Court that the appeal concerns a
matter of law of great public or general importance, or if the Court of
Appeal in its overall duty to see that justice is done considers that the
appeal should be heard.

Under R. 87(12) and R.83 (9) of the Court of Appeal and Supreme Court
rules where leave to appeal or for a certificate that a point of law of
general public importance is involved has been given or refused by the
High Court immediately following the delivery of the decision against
which it is desired to appeal, a statement that leave or a certificate has
been given or refused shall be included in the decree or order.

Where a third appeal is made from the Court of Appeal to Supreme Court
the record of Appeal will have to include the order, if any giving leave to

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appeal and also certificate of the Court of Appeal that a point or points of
law of great public importance arise.-R.83(2)(C) and (2)(h).

If any of the above document is missing from the record of appeal then
such appeal is incompetent. These documents are essential documents
because they indicate that the appeal merits consideration by the court.
Their absence makes the appeal incompetent and should be struck out.
See Beatrice Kobusingye v Fiona Nyakana & Anor SCCA No. 18 of 2001.

Appeals in local council courts including interlocutory applications.

Appeals in local council system is principally regulated by s.32 and s.33

of the Local Council Courts Act 2006. Also Local Council Courts
Regulations 2007.

Section 32 provides that a party dissatisfied with the judgment or order

of a local council court may, subject to the provisions of the section or
any written law, appeal against the judgment or order; but no appeal
shall lie from a judgment or order passed or made as a result of the
consent of the parties.

An appeal shall lie—(a) from the judgment and orders of a village local
council court to a parish local council court;(b) from the judgment and
orders of a parish local council court, to a town, division or sub-county
council court;(c) from the judgment and orders of a town, division or sub-
county local council court to a court presided over by a Chief
Magistrate;(d) from decrees and orders made on appeal by a Chief
Magistrate, with the leave of the Chief Magistrate or of the High Court, to
the High Court.

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Leave to appeal shall not be granted except where the intending

appellant satisfies the Chief Magistrate or the High Court that the
decision against which an appeal is intended involves a substantial
question of law or is a decision appearing to have caused a substantial
miscarriage of justice. An application for leave to appeal shall, in the first
instance, be made to the Chief Magistrate within thirty days from the
date of the decision sought to be appealed from and an application to the
High court for leave shall be made within the twenty-one days from the
date on which the Chief Magistrate refuses the application.

Section 33 provides that an appeal from a village, parish, town, division

or sub-county local council court shall be lodged within fourteen days
from the date of the judgment or order appealed against; and an appeal
from the Chief Magistrate’s Court shall be lodged within fourteen days
from the date leave to appeal is granted. Every appeal shall be presented
in a memorandum signed by the appellant, setting forth the grounds of
appeal, and the memorandum shall be substantially as set out in Form
D in the Fourth Schedule to the Act. The appellate court shall cause a
notice of the memorandum of appeal to be served on the respondent, and
the notice shall be substantially as set out in Form E of the Fourth
Schedule to the Act.

In the case of Ndagahweire v Kaana Ephraim HCCAppeal No.8/2009,

the appellant was dissatisfied with the decision of the Chief magistrate
sitting in her appellate jurisdiction in a civil appeal from LCIII Court. The
Court observed that the Appellant sued in LC I Court and lost, he
appealed to LC II where he lost then Appealed to LC III court where he
lost. He appealed to the Chief Magistrate’s Court where he lost hence this
Appeal to the High Court. He has kept a protracted legal battle through

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all these courts from 2007 until this day of a period of about (4) four
years. Considering the case as a whole his suits and Appeals have no
merits whatsoever. It is the final verdict of the court that the Appeal is
hereby dismissed with costs to the Respondent on appeal and in the
Lower court.

Appeals in Magistrate Courts from Magistrate Grade II

The law governing such appeals is s.220 MCA. It provides that, an appeal
shall lie from the decisions, judgments and orders of a magistrate’s
court, whether interlocutory or final, presided over by a magistrate grade
II to a court presided over by a chief magistrate. Grade 1 has no appellate
jurisdiction.

Also appeal from decrees and orders passed or made in appeal by a chief
magistrate, with the leave of the chief magistrate or of the High Court, to
the High Court.

Appeals from the Magistrate Courts to the High Court including

interlocutory applications.

Procedure governing Appeals from the Chief Magistrate and Grade 1 to

the High Court.

Right is provided for in section 220 (1) (a) and (c) MCA. It provides that
subject to any written law and except as provided in the section, an
appeal shall lie from the decrees or any part of the decrees and from the
orders of a magistrate’s court presided over by a chief magistrate or a
magistrate grade I in the exercise of its original civil jurisdiction, to the
High Court. From decrees and orders passed or made in appeal by a
chief magistrate, with the leave of the chief magistrate or of the High
Court, to the High Court. Leave to appeal for the purposes of subsection

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(1)(c) shall not be granted except where the intending appellant satisfies
the chief magistrate or the High Court that the decision against which an
appeal is intended involves a substantial question of law or is a decision
appearing to have caused a substantial miscarriage of justice.

In the case of Matayo Okumu vs. Fransisko Amudhe & 2 Ors [1979]
HCB 229 Odoki Ag. J. held that the effect of section 232 of the MCA
which governs leave to appeal to the High Court is to prohibit a Court
granting leave to an applicant to lodge a second appeal to the High Court
unless he satisfies the court either that the intended appeal involves a
substantial question of law or that the decision which he intends to
appeal appears to have caused a miscarriage of justice. That a
substantial question of law is involved where the point raised is one of
general principles decided for the first time, or where the question is one
upon which further argument and a decision of the superior court would
be to the public advantage. That a decision appears to have caused a
miscarriage of justice where there is a prema facie case that an error has
been made.

In the case of James Bunwa vs. Byayeshybaho [1976] HCB 224 held
that no appeal (against the appellate decree and judgment of the Chief
magistrate) shall lie if leave to appeal is not granted under section 232
(1)(c) of the Act. The power to grant leave to appeal is restricted to
matters involving a substantial question of law or where the decision to
appeal against appears to have caused a substantial miscarriage of
justice. This before leave is granted these two conditions must be fulfilled
by the grounds on which leave to appeal is sought. And this leave to
appeal can be granted for consideration of a limited question only. There
was nothing legally wrong in the order of the grant of leave for

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consideration of the question of costs only which involved a substantial

question of law.

Time for Appealing

Time for appeal begins to run when judgment or ruling is delivered.

Section 79 CPA provides for limitation of appeals. It provides that except
as otherwise specifically provided in any other law, every appeal shall be
entered (a) within thirty days of the date of the decree or order of the
court; or (b) within seven days of the date of the order of a registrar, as
the case may be, appealed against; but the appellate court may for good
cause admit an appeal though the period of limitation prescribed by the
section has elapsed. In computing the period of limitation prescribed by
the section, the time taken by the court or the registrar in making a copy
of the decree or order appealed against and of the proceedings upon
which it is founded shall be excluded.

In the case of Haji Mohamed Nyanzi vs. Ali Segme [1992-1993] HCB
218 held that under section 80(1) CPA every appeal shall be entered
within thirty days of the date of the decree or order, and the time taken
by the court, or register in making a copy of the decree or order appealed
against and the proceedings upon which it is founded shall be excluded.
That under Order 18 r 17(2) CPR it is the duty of the successful party to
prepare without delay a draft decree and submit it to the magistrate for
signature and sealing. If the applicants lawyers prepared the decree
which gave wrong dates, they had themselves to blame, especially so if
they left it to the court to do so. That the appellant failed to prove that at
any time he applied for a copy of the decree (not even the judgment an
proceedings), he had no proof of date of receipt of the decree. He ought to
have filed his appeal latest 29th November, 1986 i.e. thirty days after the
date of judgment instead he filed 3rd December 1986. It was thus filed

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out of time. He did not apply for let alone, obtain leave to file out of time.
Appeal was struck out as incompetent.

Application for extension of time to Appeal

Section 96 CPA provides for enlargement of time. That where any period
is fixed or granted by the court for the doing of any act prescribed or
allowed by the Act, the court may, in its discretion, from time to time,
enlarge that period, even though the period originally fixed or granted
may have expired.

In the case of Evaristo Mugabi vs. Attorney General [1992-1993] HCB

169 held that under section 80(1) of the Civil procedure Act, the
appellate court may for good cause admit an appeal although a period of
limitation prescribed by the section may have elapsed and although the
court has discretion, it must be exercised judicially and for sufficient
cause. The application for extension of time has to be made prompt and
good cause must be shown for the entire period of delay and that the
delay was not by dilatory conduct on part of the applicant. Under R.4 of
the Supreme Court rules the court may for sufficient cause extend time
limited by the rules within which to do any act authorized by the rules if
the applicant acted diligent and spared no effort in trying to lodge the
appeal.

In the case of Florence Nabatanzi vs. Naome Binsobedde SC C

Application No. 6 of 1987 held that the Court has wide powers to
extend the period provided sufficient reason is shown. Sufficient reason
depends on the circumstances of each case and must relate to inability
or failure to take a particular step in time. It is settled law that the fact
an appeal appears likely to succeed cannot itself amount to sufficient
reasons.

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The procedure of Appeal

The procedure is provided in O.43 CPR. Appeals to the High court from
the decision of the Chief magistrate and magistrate Grade 1 are
commenced by a memorandum of appeal filed by the appellant. The form
of memorandum provided for in O.43 r 1 CPR provides that every appeal
to the High Court shall be preferred in the form of a memorandum signed
by the appellant or his or her advocate and presented to the court or to
such officer as it shall appoint for that purpose. Sub rule 2 provides that
the memorandum shall set forth, concisely and under distinct heads, the
grounds of objection to the decree appealed from without any argument
or narrative; and the grounds shall be numbered consecutively.

Under O.43 r 2 grounds which may be taken in appeal are provided and
its provided that the appellant shall not, except by leave of the court,
urge, or be heard in support of any ground of objection not set forth in
the memorandum of appeal; but the High Court in deciding the appeal
shall not be confined to the grounds of objection set forth in the
memorandum of appeal or taken by leave of the court under the rule;
except that the High Court shall not rest its decision on any other
ground unless the party who may be affected by the decision has had a
sufficient opportunity of contesting the case on that ground.

O.43 r 8 the register of appeal is provided for, that where a memorandum

of appeal is lodged, the High Court then shall cause to be endorsed on it
the date of presentation and the appeal shall be entered in a book to be
kept for that purpose, to be called the register of appeals.

After High Court has received a memorandum, it proceeds under rule 10

and sends notice of the appeal to the court from whose decree the appeal
is preferred and the court receiving the notice shall send with all

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practicable dispatch all material papers in the suit or such papers as

may be specially called for by the High Court.

In the case of William Kisembo&Anor vs. KiizaRwakaikara HC Civil

Appeal No. 07/2013 the respondent’s contention was that the appeal
should be dismissed because the essential steps were not taken as
required by law. Counsel for the respondent faulted the appellants for
neither serving the record of appeal nor extracting the order that is
appealed against. It was argued for the respondent that the appellants
ought to have filed the record of appeal and served it onto the respondent
to enable the Honourable Court determine the appeal. Justice Hellen
Obura held Order 43 of the Civil Procedure Rules which governs appeals
to the Court an appellant is not required to file a record of appeal as
contended by the respondents. That Order 43 rule 10 (2) puts the
responsibility of giving notice of appeal with a view of calling for the
records from the trial court on to the High Court. There is no mention of
the appellant’s role beyond filing the Memorandum of Appeal. The
appellants filed a Memorandum of Appeal in the High Court on the 13th
May 2013 and on the 3rd of July 2016 the Deputy Registrar of the high
Court, in compliance with rule 10(2) wrote to the Chief Magistrate of
Mengo Chief Magistrate’s Court requesting that the case file be forwarded
to the high Court for easy management of the appeal. In response to that
request the Chief Magistrate wrote to the Deputy Registrar forwarding
the case file on 20th August 2013. Therefore the case file from the lower
court is already before the high Court and the records therein have been
considered in determining the appeal. Secondly, Court is alive to the
previously strict view that required an appellant to extract a decree
before appealing. However, this is now done as a matter of prudence
because the Court of Appeal in the case of Standard Chartered Bank
(U) Ltd vs Grand Hotel (U) Ltd [1999] KALR 577held that it is no longer

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a requirement to accompany the appeal with a formal order or extracted

decree. That the High Court echoed the same legal proposition in the
case of Patrick Nkoba vs Rwenzori Highlands Tea Co. & Another,
High Court Civil Appeal No. 5 of 1999 reported in [1999] KALR 762.

O.43 r 11 the notice of the day fixed for hearing of the appeal shall be
served on the respondent or on his or her advocate in the manner
provided for the service on a defendant of a summons to enter
appearance; and all the provisions applicable to that summons, and to
proceedings with reference to the service of the summons, shall apply to
the service of the notice. Rule 12 the notice to the respondent shall
declare that if he or she does not appear in the High Court on the day so
fixed, the appeal may be heard ex parte.

O.43 r 13 the applicant has right to begin. On the day fixed, or on any
other day to which the hearing maybe adjourned, the appellant shall be
heard in support of the appeal. The court shall then, if it does not
dismiss the appeal at once, hear the respondent against the appeal, and
in that case the appellant shall be entitled to reply.

O.43 r 14 where on the day fixed, or on any other day to which the
hearing may be adjourned, the appellant does not appear when the
appeal is called on for hearing, the court may make an order that the
appeal be dismissed. Where the appellant appears, and the respondent
does not appear, the appeal may be heard ex parte.

O.43 r 19 provides for remand of cases by High Court.

O.43 r 20 provides that where evidence on record sufficient High Court

may determine case finally.

O.43 r 21 provides for power to order new trial.

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O.43 r 22 production of additional evidence in High Court. It provides

that parties to an appeal shall not be entitled to produce additional
evidence, whether oral or documentary, in the High Court. In the case of
UGMA Engineering Corp. vs. Lugazi Town Council HCCA No. 33 of
1990 held that since this was an appeal, fresh evidence would not be
allowed and therefore the production of maps to prove whether the
appellant company was within a ratable area of Lugazi Town Council
would not be allowed.

There however exceptions in the Order, if—

(a) the court from whose decree the appeal is preferred has refused to
admit evidence which ought to have been admitted; or

(b) the High Court requires any document to be produced of any witness
to be examined to enable it to pronounce judgment, or for any other
substantial cause, the High Court may allow the evidence or document to
be produced, or witness to be examined. Wherever additional evidence is
allowed to be produced by the High Court, the court shall record the
reason for its admission.

In the case of Dharansy Morarji and Sons Ltd vs. S.N. Kara SCC
Application No. 27 /1996 held that there must be sufficient reason to
justify reception of additional evidence. Whether or not to take additional
evidence is a matter entirely within the discretion of the appellate Court.
It is very rare that an appellate Court allows an appellant to adduce
additional evidence in that court and never unless there are exceptional
grounds.

In the case of Alice J. Namisango vs. Galiwango [1986] HCB 37 Odoki

J held that the busuulu and envujjo tickets were wrongly produced as
additional evidence since no exceptional circumstances were proved to

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justifying the court to receive fresh evidence. Except for fraud or mistake,
the general rule is that an appellate court will not admit fresh evidence
unless it was not available to the party seeking to use it at the trial or
that reasonable diligence would not have made it available.

In the case of American Express International Banking Corp vs.

Atulkumar B. Patel [1987] HCB 34 held that the principles upon which
additional evidence could be granted cited in all these authorities were
crystal clear and could not be bent to meet a situation in any given case
unless it was shown that such evidence was not available at the time of
trial. Secondly it should be shown that there was due diligence in
obtaining it and thirdly that evidence would have an important influence
on the outcome of the case if produced. That the applicant has not
shown diligence in obtaining facts or evidence which was available at the
time in regard to his case.

O.43 r 23 provides for the mode of taking additional evidence. It provides

that wherever additional evidence is allowed to be produced, the High
Court may either take the evidence or direct the court from whose decree
the appeal is preferred or any other magistrate’s court to take the
evidence and to send it when taken to the High Court.

O.43 r 24 provides for points to be defined and recorded. It provides that

where additional evidence is directed or allowed to be taken the High
Court shall specify the points to which the evidence is to be confined and
record on its proceedings the points so specified.

O.43 r 26 provides for what judgment may direct. That the judgment may
be for confirming, varying or reversing the decree from which the appeal
is preferred, or, if the parties to the appeal agree as to the form which the

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decree in appeal shall take, or as to the order to be made inappeal, the

High Court may pass a decree or make an order accordingly.

Procedure of Appeal from decision of the High Court Registrar to the

High Court Judge.

O.50 r 8 CPR provides that any person aggrieved by any order of a

registrar may appeal from the order to the High Court. The appeal shall
be by motion on notice.

Time for Appealing

Time for appeal begins to run when judgment or ruling is delivered.

Section 79 (b) CPA provides that except as otherwise specifically provided
in any other law, every appeal shall be within seven days of the date of
the order of a registrar, as the case may be, appealed against

Procedure of Appeal from decision of the High Court to Court of

Appeal.

An appeal may lie from the decree or orders of the High Court to the
Court of Appeal subject to the law. An appeal lies as of right from the
decree of the high court exercising original jurisdiction or appellate
jurisdiction as a first appellate court.

Appeals from orders of the high court exercising original jurisdiction may
be as of right or subject to leave see s.66, s.76, O.44 r1 and O.6 r 30(2).
Where an order is not covered by the aforementioned provisions and no
automatic right is created under any other rule, the order is appealable
with leave under O.44 r 2 CPR. See Dr. Sheikh Mohammed Ahmed
Kisuule vs. Greenland Bank in liquidation SCCA No. 11/2010

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Leave of Court

An appeal under the Civil Procedure Rules shall not lie from any other
order save with leave of the court making the order or of the Court to
which an appeal would lie, if leave were given.-O.44 r 2 CPR. Appeals lie
of right from orders under section 76 and O.44 r 1.

Leave to appeal from an order in civil proceedings will normally be

granted where prima facie it appears that there are grounds of appeal
which merit serious judicial consideration.

In the case of Sangobay Estates Ltd vs. Dresdner Bank A.G [1971]
E.A 17 Spray V.P stated ‘As I understand it, leave to appeal from an order
in Civil Proceedings will normally be granted where prima facie it appears
that there are grounds of appeal which merit serious judicial consideration’

In the case of Dr. Sheikh Mohammed Ahmed Kisuule vs. Greenland

Bank in liquidation SCCA No. 11/2010at p.10-11an applicant has to
satisfy court that the intended appeal involves a substantial question of
law or that the decision against which he/she intends to appeal appears
to have caused a miscarriage of justice.

Procedure of an application for leave

Application for leave to be made to the court that made the order first.
R.42 Court of Appeal rules.

An application for leave to appeal shall be by notice on motion-O.44 r 4

CPR.

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However the party applying for leave has in the first instance the choice,
whether to apply informally at the time of delivery of judgment or order
or making a formal application later. An application for leave can be
made informal at the time of making the ruling.

R.40(2)(a) of the Court of Appeal rules, an application for leave shall be

made informally at the time when the decision against which it is desired
to appeal is given.

R.40(2)(b) if the high court refuses to grant the leave or where an appeal
lies with leave of court, an application for the leave shall be lodged by
notice of motion within 14 days after the decision of the high court
refusing leave and the decision of the court of appeal is final.

In the case of G.M Combined (U) Ltd vs. A.K Detergents (U) Ltd SCCA
No. 23/1994 Supreme Court stated that it is plain that Rule 39(a)
supreme court rules and Order 40 rule l (4) CPR are substantially in
conflict, but the conflict was resolved as long ago as 1971 by the Court of
Appeal for East Africa in SANGO BAY Ltd vs. Dresdner Bank (1971) E.A.
17 where at p.20 Spry V.P made the following observations:-.
“The first ground on which this application is based is that the Judge erred
in rejecting the informal application for leave to appeal made immediately
after delivery of the main order. He based his decision onO.40 rule 1(4),but
rule 23 of the East African Court of Appeal Rules, 1954, expressly allows
informal
application. Formerly, this position was that the Court of Appeal Rules had
effect as if contained in the Order in Council which empowered them and
therefore prevailed, as regards procedural matters, over municipal
legislation.
Now, as regards Uganda, their authority depends on section 43of the
Judicature Act, I967, and it seems to me that having been expressly

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preserved by an Act later in date than the Civil Procedure Act and Rules,
they must continue to prevail. I think therefore that the Judge was wrong
to treat the informal application as incompetent.”

The Supreme Court held that opinion applies with the same force today
as it did in 1971. It has never been doubted and proposed to follow it. It
is quite clearly on all fours with the present case and there is no ground
distinguishing it from the alleged nature of the application. The Supreme
Court further stated;

‘The party applying for lave has in the first instance the choice, whether to
apply informally at the time of delivery of judgment or order, or making a
formal application letter. What is involved in that choice? If the party has
instructions to appeal, he may without incurring any costs apply informally
at once. Indeed this court has had occasion to encourage advocates to be
prepared in advance of delivery of judgment or ruling with instructions
whether or not to appeal. If instructions are received, no further waste of
time and money will occur. If however the question is not clear, then he
may apply later by motion on notice. Initially therefore, the choice of
procedure is open to the party who wishes to appeal. Nor is it open to the
respondent to insist on formal application. His duty is to resist leave being
granted upon merit of the decision.’’ That it was obvious that at least the
amount of security merited serious consideration. That being so, it was
the duty of the learned Judge to inquire what grounds there were on
which the appeal would be taken. If, the grounds were insubstantial, the
learned Judge might refuse leave, or call for a formal application.
However, in the circumstances which faced the Judge in the present
case, the issues were simple and there was no need to call for a formal
application. Indeed had the learned Judge not misdirected himself, the
learned Judge would have been able to deal with the application at once

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and his misdirection entitles this Court to reconsider the manner in

which his discretion was exercised. That the rule is that if the High Court
has refused leave to appeal on a proper application, or on what the High
Court considers a doubtful application, but one which should have been
entertained, it is taken that the High Court has refused leave, and that
an application may be made to the Appellate Court. That is precisely the
point made in the Sango Bay Ltd where the application ought to have
been heard.

The effect of failure to obtain leave of court where it is required will result
in striking out of appeal and the appeal is incompetent once leave is
required and is not obtained. See R. 82 of the Court of Appeal rules.

In the case of Kampala City Council vs. National Pharmacy Ltd

[1979] HCB215 the Court of Appeal held that rule 80 of the Court of
Appeal rules empowers court to strike out the notice of appeal, among
other things some essential step in the proceedings has not been taken.

Time for Appealing

The time for appeal begins to run when judgment or ruling is delivered.
R. 76(2) a notice of Appeal must be filed within 14 days after the date of
the decision which is desired to appeal. Appeals with leave-notice of
appeal must be filed and served within 14 days from the date of granting
of leave.

Under R. 83 an appeal shall be instituted in the court by lodging in the

registry, within 60 days after the date when the notice of appeal was
lodged a memorandum of appeal, record of appeal, prescribed fees and
security for costs of the appeal.

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R. 83(2) where an application for a copy of the proceedings has been

made to the High Court the period for the preparation and delivery of the
proceedings shall be excluded in computation of the sixty days.

In the case of Alcon International vs. Kasirye Byaruhanga & CO.

Misc. Appl. 438/95 the Court observed that appeal describes a
procedure started by filing a notice of appeal that once a notice is filed
then procedure of appeal is put in place.

In the case of Godfrey Tuwangye Kazzora vs. Georgina Kitarikwenda

[1992-1993] HCB 145 held as follows;

i) Time for lodgment of an appeal does not begins to run against

the intending appellant until that party receives a copy of the
proceedings against which he intends to appeal. In the instant
case the application for leave to appeal out of time was filed in
court before proceedings of the lower court had been typed and
secured by the appellant or his lawyer. Therefore by the time
the application to appeal out of time, which was subsequently
struck out, was filed, time had not started to run against the
appellant. The fact that the application for leave to appeal out of
time was struck out, would not prevent a party whose
application was struck out from filing his appeal after he
secured a copy of the court record.
ii) Although some authorities have suggested that the appellant
should not be permitted to appeal after 7 years, the interest of
justice would demand that the dispute should be decided on
merit especially when it is between a mother and a son, the
court may exercise its discretion to grant leave to appeal out of
time when delay is caused by the mistake of the appellant
advocate.

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In the case of Gaba Beach Hotel vs Cairo International Bank Ltd CA

No.34/2003 the issue was whether noncompliance with the time limit
for filing and serving a notice of appeal is curable under Art.126(2)(e) of
the constitution. It was held that rules relating to institutions of appeals
in this court aren’t to be regarded as mere technicalities under art.
126(2)(e) of the constitution. They go to the root of substantive justice
and the doctrine of fair trial. They are intended to protect both parties
from abuse of court process to the prejudice of the proper administration
of justice.

Application for extension of time

S.96 CPA the court has discretion to enlarge time. Under R. 5 provides
for extension of time limited by the rules or by any decision of court or of
the High court for doing of any act authorized or required by the rules,
whether before or after expiration if time for sufficient reasons. Under the
Practice Direction No. 1 of 2004 Court of Appeal (Judicial Powers of
Registrars) practice direction, an application for extension of time is
before the registrar.

In the case of Busasi &Anor vs. Kareba & Anor [1979] HCB 129 the
Court of appeal held that;

i) the power to extend time within which an appeal is made is

governed by rule 4 Court of Appeal rules. The power is
discretionary and only exercisable for sufficient reason.
ii) the burden is on the applicant to satisfy court that for
‘sufficient reason’’ it was not possible for the appeal to be lodged
in time.
iii) It is only after ‘sufficient reason’ has been advanced that a court
considers, before exercising its discretion whether or not to

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grant extension, the question of prejudice or the possibility of

success and such other factors.

In the case of Arconsult Architects vs. Bauman (U) Ltd held that
section 37(1)(a) J.A gives the High Court power where any appeal lies
from its judgment to extend the time for giving notice of intention to
appeal as long as the applicant gives sufficient reasons for failure to
file his notice in time and dishonest pocketing of court fees by the
clerk resulting in failure to file the notice in time was sufficient
ground to allow such an extension.

In the case of Evaristo Mugabo vs. A.G [1992-1993] HCB 169 held
that under section 80(1) CPA, the appellate court may for good cause
admit an appeal although a period of limitation prescribed by the
section may have elapsed and although the court has a discretion, it
must be exercised judicially and for sufficient cause. The application
for extension of time has to be made promptly and good cause must
be shown for the entire period of delay and that delay was not by
dilatory conduct on the part of the applicant. Under r.4 of the
Supreme Court rules the court may for sufficient cause extend time
limited by the rules within which to do any authorized act by the rules
if the applicant acted diligent and spared no effort in trying to lodge
the appeal.

Notice of Appeal

A notice of Appeal is the first document that must be filed in an appeal.

An appeal is brought by way of notice of appeal-r.76.In the case of Alcon
International vs. Kasirye Byaruhanga & CO. Misc. Appl. 438/95 the
Court observed that appeal describes a procedure started by filing a

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notice of appeal that once a notice is filed then procedure of appeal is put
in place.

Every notice of appeal shall state whether it is intended to appeal against

the whole or part only of the decision, and where it is intended to appeal
against a part only of the decision, it shall specify the part complained of,
state the address for service of the appellant and state the name and
address of all the persons intended to be served with copies of the
notices-r.75 (3)

In the case of Mugo & Anor vs. Wanjiru & Anor [1970] EA 481 held
that the notice of appeal was valid and effective notwithstanding the
death of the defendant. The notice of appeal could be validly served on
the advocate of the deceased defendant.

In the case of Francis Mansio Micah vs. Nuwa Walakira [1992-1993]

HCB 88 held that R.74(3) of the Court of Appeal rules provides that the
address for service upon the respondent should be stated upon the
notice of appeal. But rule 76 provides that the notice shall be served
upon the respondent within 7 days by the appellant. After service of the
notice, the respondent provides his proper address for service under
R.78. The provision for the address for the respondent in rule 74(3) is
therefore largely a matter of good administration rather than
fundamental necessity.

R. 78 (1) An intended appellant shall, before or within seven days after

lodging notice of appeal, serve copies of it on all persons directly affected
by the appeal; but the court may, on application, which may be made ex
parte, direct that service need not be effected on any person who took no
part in the proceedings in the High Court.

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In the case of Francis Mika vs. Nuwa Walakira SCCA No. 24/94 Court
found that the intending appellant must serve copies of the notice of
appeal on all persons directly affected by the appeal.

R. 80 every person on whom a notice of appeal is served shall (a) within

fourteen days after service on him or her of the notice of appeal in the
appropriate registry, serve on the intended appellant notice of a full and
sufficient address for service; and (b) within a further fourteen days,
serve a copy of the notice of address for service on every other person
named

In the case of Noble Builders (U) Ltd vs. Sietco SCCA No. 31/1995
Order JSC held that where a person fails to file a notice of full and
sufficient address of service that person is not entitled to be served with
a memorandum and record of appeal. This is a mandatory requirement
and must be in a prescribed form.

R.82 a person on whom a notice of appeal has been served may at any
time, either before or after the institution of the appeal, apply to the
court to strike out the notice or the appeal, as the case may be, on the
ground that no appeal lies or that some essential step in the proceedings
has not been taken or has not been taken within the prescribed time.

In the case of Afrique Co-op Society vs. URC (2002) 1 EA 1 the

application to strike out a notice of appeal was grounded on the fact that
no application should lay against a consent judgment. Further
application to strike out notice of application was grounded on fact that
notice of appeal had not been served within 7 days. On this point court
found that under r.77 of Court of appeal rules provides that an intended
appellant must serve copies of notice of appeal on all persons directly
affected by the appeal within 7 days of lodging of the notice. Court found

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that service of notice on litigant is an essential requirement of an appeal

and if it is not done within the prescribed period the appeal is rendered
incompetent unless leave of court to serve out of time is obtained. In this
case it wasn’t done and the appeal was struck out. In the case of
Wanume David Kitamirike vs Uganda Revenue Authority Civil Appl
No. 138/2010 CA the application, brought under Rules 43, 82 and 83 of
the Judicature (Court of Appeal Rules) Directions, seeks an order by the
applicant that Civil Appeal No.43 of 2010 between the Respondent as the
appellant and the applicant as the respondent be struck out by reason
that the Respondent filed in the court the record and Memorandum of
Appeal out of the prescribed time, thus failing to take an essential step in
the Appeal proceeding. Court held that under Rule 83(1) of the Rules of
Court, an appeal is instituted in this Court, by lodging in the registry,
within sixty days after the date when the notice of appeal was lodged, a
memorandum, the record of appeal, the prescribed fees and security for
costs. That
Rule 83 (2) provides that where an application for a copy of the
proceedings in the High Court has been made within thirty days after the
date of the decision against which it is desired to appeal, there shall, in
computing the time within which the appeal is to be instituted, be
excluded such time as may be certified by the Registrar of the High Court
as having been required for the preparation and delivery to the appellant
of that copy.
The copy of the application must be in writing and must be served upon
the respondent and the appellant must retain proof of that service.
That the provisions of Rule 83(2) are mandatory. See: John Matsiko vs
Banyankole Kweterana Co. (U) Ltd: Court of Appeal Civil
Application No.43 of 1998; and also:
Court of Appeal Civil application No.84 of 2001: Construction

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Engineers & Builders Limited vs The Attorney General.

This Court has also further held in Dr. S.B. Kinyatta& Another vs
Suburamania Rajha Gopalan& Another: Civil Application No.1000
of 2000, that although, in some instances, Rule 83(2) may be unfair to
one who has already got Judgment, however,
“…………..as long as the intending appellant has requested for the
record of proceedings from the High Court, and served it on the
respondent, he is not required to do anything more until the
Registrar of the High Court has finished compilation of the record
of proceedings”.

The consequences or default in instituting an appeal within 60 days are

provided in Rule 84. If a party who has lodged a notice of appeal fails to
institute an appeal within the prescribed time (a) he or she shall be taken
to have withdrawn his or her notice of appeal and shall, unless the court
otherwise orders, be liable to pay the costs arising from it of any persons
on whom the notice of appeal was served; and (b) any person on whom
the notice of appeal was served shall be entitled to give notice of appeal
notwithstanding that the prescribed time has expired, if he or she does
so within fourteen days after the date by which the party who lodged the
previous notice of appeal should have instituted his or her appeal.

In the case of Hannington Waswa & Anor vs. Maria Ochola & Ors SC
Misc. Appln. No. 12 of 1998 held that under r.80(1) of the rules of this
Court, the appeal should have been filed within 60 days from the date of
receipt of the proceedings. A person on whom a notice of appeal has been
served is entitled under rule 80 of the same rules to apply to court to
strike off the notice of appeal on the ground that some essential step in
the proceedings has not been taken within the prescribed period. The
failure to file the appeal within the prescribed 60 days from the date of

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receipt of the record of proceedings was sufficient ground to have the

notice of appeal struck off.

Memorandum of Appeal

Institution of appeals is provided in R.83 of the Court of appeal rules. It

provides that subject to rule 113 of these Rules, an appeal shall be
instituted in the court by lodging in the registry, within sixty days after
the date when the notice of appeal was lodged (a) a memorandum of
appeal, in six copies, or as the registrar shall direct; (b) the record of
appeal, in six copies, or as the registrar shall direct; (c) the prescribed
fee; and (d) security for the costs of the appeal.

R.83 (2) an application for a copy of the proceedings in the High Court
must be made within thirty days after the date of the decision against
which it is desired to appeal. That there shall, in computing the time
within which the appeal is to be instituted, be excluded such time as
may be certified by the registrar of the High Court as having been
required for the preparation and delivery to the appellant of that copy.

The intending appellant applies to the High Court by a formal letter

addressed to the registrar for typed record of proceedings. It is to be
served on the respondent and there must be evidence of such service. In
Horizon Coaches case the justices recommended that a prudent advocate
should swear an affidavit of service.

In the case of National Housing and Construction Co. Ltd vs. Salome
T.B Kyomukama Civil Application No. 133/2009 held that a party /
respondent who is not served with a letter requesting for typed
proceedings may apply under Rule 82 to strike out the appeal if the
memorandum and record of appeal are not filed within 60 days’ time
limit.

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In the case of Steven Mabosi vs. URA SCCA No. 16 of 1995, an

application was brought under R.42,80 and 82 of the Supreme Court
rules seeking to strike out a notice of appeal by the respondent on the
ground that the respondent had not instituted the appeal within 60 days
from the date of filing the notice of appeal as required by rule 81(2)
supreme court rules and the respondent replied that he had replied with
R.81 Supreme court rules where the proviso thereof provide that as one
as the intending appellant applies within 30 day the copy of proceedings
of the High Court the time taken by the High court to prepare and take
proceedings to the intending appellant shall be excluded from the sixty
days mentioned in the rule. Respondent further replied that his notice of
appeal…that it is intended to formulate his notice of appeal upon receipt
of notice of appeal that this amounted an application for record.
Applicant contended that there was no application on record. Court
found that rule 81 didn’t specify for which an application for record of
proceedings is made as long as it is to the registrar within 30 days from
the date of the proceedings. Court found that a notice of appeal in its
form amounted to record of proceedings and appeal was not out of time.

In the case of Mustapha Begani vs. Obolo Ochora Civil Application

No. 4 of 1997, was an application to strike out the respondent’s notice
of appeal on ground that the respondent had not taken any step to file
the record of appeal within the prescribed time or at all. Court found that
rule 82 renders a notice of appeal invalid where the record of appeal
hasn’t been filed in the prescribed time of 60 days. The rules therein
empower the respondent to move court to strike out the notice of appeal.

Rule 86 provides for the contents of memorandum of appeal. That the

memorandum of appeal shall set forth concisely and under distinct
heads, without argument or narrative, the grounds of objection to the

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decision appealed against, specifying the points which are alleged to have
been wrongfully decided, and the nature of the order which it is proposed
to ask the court to make. (2) The grounds of objection shall be numbered
consecutively.

Record of Appeal

Rule 87 provides for the record of appeal. Contents set therein and for
purposes of appeal from the High Court, in its original jurisdiction, the
record of appeal shall, contain copies of the following documents—

a) an index of all the documents in the record with the numbers of

the pages at which they appear;
b) a statement showing the address for service of the appellant and
the address for service furnished by the respondent and, as
regards any respondent who has not furnished an address for
service, then as required by rule 78 of these Rules, his or her last
known address and proof of service on him or her of the notice of
appeal;
c) the pleadings; e.g plaint, written statement of defense, notice of
motion
d) the trial judge’s notes of the hearing;
e) the transcript of any shorthand notes taken or any other notes
howsoever recorded at the trial;
f) the affidavits read and all documents put in evidence at the
hearing, or if those documents are not in the English language,
certified translations of them;
g) the judgment or reasoned order;
h) the order, if any, giving leave to appeal;
i) the notice of appeal; and

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j) any other documents necessary for the proper determination of the

appeal, including any interlocutory proceedings which maybe
directly relevant.

For the purpose of an appeal from the High Court in its appellate
jurisdiction, the record of appeal shall contain documents relating to the
proceedings in the trial court corresponding as nearly as may be to those
set out in sub rule (1) of this rule and shall contain also the following
documents relating the appeal to the first appellate court (a) the order, if
any, giving the leave to appeal; (b) the memorandum of appeal; (c) the
record of proceedings; (d) the judgment or order; the notice of appeal;
and (f) in the case of a third appeal to the court, the corresponding
documents in relation to the second appeal to the High Court, and the
certificate of the High Court that a point of law of general public
importance is involved-R.87 (3)

R. 88 the memorandum and record of appeal must be served to the

respondent within 7 days by the appellant.

R. 90 any defect in record of appeal may be cured by either respondent

or appellant filing a supplementary record of appeal to complement the
record of appeal.

In the case of Barclays Bank (U) Ltd vs. Eddy Rodrigues CACA No.5
of 1987 held that a supplementary record is a record of any further
documents or additional parts of document which may be required for
determination of the appeal. A supplementary record merely
supplements a defective or insufficient original record of appeal and is
not itself a basic document required for the original appeal.

In the case of Bohenex Intra (U) Ltd vs. Jamal and Sons (U) Ltd & 2
Ors SCCA No. 5 of 1992 held that a supplementary record should not

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contain one of the basic documents required by rule 85(1) of the supreme
court rules. The reasoned judgment or order is just as basic, or
fundamental to the appeal as the formal decree or order without appeal.
Consequently it is a document which must be included in the original
record, and if it is not, the appellant has failed to comply with rules 85(1)
rendering the appeal incompetent. If then the reasoned judgment or
order is filled under a supplementary record of appeal it constitutes a
refiling of the record of the appeal. In the present case that would mean
that the appeal is out of time and therefore once again incompetent.

R. 91 provides for cross appeal. There is time when the victor in

proceedings is given the opportunity to cross appeal that the decision of
the High court ought to be varied or reversed. He has to give notice to
that effect that he intends to cross appeal. He gives notice which
contains the grounds for his or her intention and the order which he
asks the court to make.

R. 93 A respondent who intends to cross-appeal or to contend that the

decision of the High Court should be affirmed on grounds other than
those relied on by that court shall, before or within seven days after
lodging his or her notice of cross-appeal or notice of grounds for
affirming the decision, as the case may be, serve a copy of it on all other
persons directly affected by the cross-appeal or by the appeal, as the
case may be.

R. 94 an appellant may at any time after instituting his or her own

appeal in the court and before the appeal is called on for hearing, lodge
in the registry notice in writing that he or she does not intend further to
prosecute the appeal. The appellant shall, before or within seven days
after lodging the notice of withdrawal, serve copies of it on each
respondent who has complied with rule 80 of these Rules. If all the

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parties to the appeal consent to the withdrawal of the appeal, the

appellant may lodge in the appropriate registry the document or
documents signifying the consent of the parties; and the appeal shall
then be struck out of the list of pending appeals. If all the parties to the
appeal do not consent to the withdrawal of the appeal, the appeal shall
stand dismissed with costs, except as against any party who has
consented, unless the court, on the application of the appellant,
otherwise orders.

Rule 98 provides for presentation of arguments in writing. That any party

to an appeal who does not intend to appear in person or by advocate at
the hearing of the appeal may lodge in the registry a statement in writing
of his or her arguments in support of or in opposition to the appeal or
the cross-appeal, if any, as the case may be, and shall, before or within
seven days after lodging it, serve a copy of it on the other party or on
each party appearing in person or separately represented. Every
statement under the rule shall be lodged (a) by an appellant, within
fourteen days after lodging his or her memorandum of appeal; (b) by a
respondent, within thirty days after service on him or her of the
memorandum and record of appeal. No party who has lodged a
statement under the rule shall, except with leave of the court, address
the court at the hearing of the appeal.

The Hearing

There is attendance at the scheduling conference and preparation of

skeleton arguments plus filing the same. This is in accordance with
Practice Direction No2 of 2006

R.99 the hearing of appeal is commenced by registrar giving all parties to

an appeal not less than fourteen days’ notice of the date fixed for hearing

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of an appeal. It shall not be necessary to give the notice to any party with
whose consent the date for the hearing was fixed.

R. 100 provides for appearance at the hearing and the procedure for non-
appearance. If on any day fixed for the hearing of an appeal in the court
the appellant does not appear, the appeal may be dismissed and any
cross-appeal may proceed, unless the court sees fit to adjourn the
hearing.

Where an appeal has been dismissed or any cross-appeal heard has been
allowed, the appellant may apply to the court to restore the appeal for
hearing or to rehear the cross appeal, if he or she can show that he or
she was prevented by any sufficient cause from appearing when the
appeal was called on for hearing. If the appellant appears but the
respondent fails to appear, the appeal shall proceed in the absence of the
respondent and any cross-appeal by the respondent may be dismissed,
unless the court sees fit to adjourn the hearing. Where an appeal has
been allowed or cross-appeal dismissed in the absence of the respondent,
he or she may apply to the court to rehear the appeal or to restore the
cross-appeal for hearing, if he or she can show that he or she was
prevented by any sufficient cause from appearing when the appeal was
called for hearing. An application for restoration shall be made within
thirty days after the decision of the court, or in the case of a party who
should have been served with notice of the hearing but was not so
served, within thirty days after his or her hearing of that decision.

R. 102 provides for arguments at hearing. That at the hearing of an

appeal in the court no party shall, without the leave of the court, argue
that the decision of the High Court should be reversed or varied except
on a ground specified in the memorandum of appeal or in a notice of
cross-appeal, or support the decision of the High Court on any ground

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not relied on by that court or specified in a notice given under rule 93 of

these Rules.

In the case of Mora v John Malobo (1979) HCB 54 Court found that an
appellant cannot argue or be heard except by leave of court in support of
any ground of appeal not set out in the appeal.

R.30 provides for the power to reappraise evidence and take additional
evidence. That on any appeal from a decision of the High Court acting in
the exercise of its original jurisdiction the court may reappraise the
evidence and draw inferences of fact and in its discretion, for sufficient
reason, take additional evidence or direct that additional evidence be
taken by the trial court or by a commissioner. When additional evidence
is taken, it may be oral or by affidavit and the court may allow the cross
examination of any deponent.

In the case of Dharansy Morarji and Sons Ltd vs. S.N. Kara SCC
APPLICATION No. 27/1996 held that there must be sufficient reason to
justify reception of additional evidence. Whether or not to take additional
evidence is a matter entirely within the jurisdiction of the appellate court.
It is very rarely that an appellate court allows an appellant to adduce
additional evidence in that court and never unless there are exceptional
grounds (see Taylor vs. Taylor (1944) II E.A.C.A 46). That the appellant
has satisfied the conditions which justify reception of additional
evidence. The evidence could not have been obtained with reasonable
diligence for use at the trial since the respondents probate had not been
revoked. Secondly the evidence of revocation of probate, if given, would
probably have an important influence on the results of appeal. Thirdly
the evidence of revocation of the grant appears to be credible.

Court will make judgment.

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This procedure of appeal applicable to the Court of Appeal applies

with modification to the Supreme Court and its set out in the
Judicature (Supreme Court Rules) Direction SI 13-11

TOPIC IX.

Constitutional litigation.

Art. 131 of the Constitution provide that any question as to the

interpretation of the Constitution shall be determined by the Court of
Appeal sitting as the constitutional court.

Every court in Uganda is vested with jurisdiction to construe, apply and

enforce provisions of the Constitution in relation to any dispute before it.
Whoever disagrees with decision of such court in relation to the
interpretation of the Constitution may petition the Constitutional Court.
For the Constitutional court to have jurisdiction, the petition must show
on the face of it that interpretation of the constitution is required in
accordance with art. 137(3) of the Constitution.

Art. 137(5) provides that where any question as to the interpretation of

this 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 accordance with clause (1) of this
article.

Art. 137 (3) 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

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contravention of a provision of this Constitution, may petition the

constitutional court for a declaration to that effect, and for redress where
appropriate.

Where a reference to the court regarding any question as to the

interpretation of the constitution is to be made, the original court shall
submit the reference stating the specific question or issues to be
answered or to be resolved. R.18 (1) the Constitutional Court (Petition
and References) Rules SI 91 of 2005

In the case of Uganda Project Implementation and Management

Centre vs. Uganda Revenue Authority Constitutional Petition No.
18/07 (Reference) was a constitutional reference sent to the
constitutional court by the Tax Appeals Tribunal sent under the
provisions of Art. 135(5) of the Constitutional. The question for
determination and implementation was ‘whether s.34c(3) of the VAT Act
Cap. 349 as amended by the Finance Act 2001 which requires a person
before lodging an application with the tribunal, pay the commissioner
30% of the tax in dispute contravenes Art. 21 which emphasizes equality
of all persons before and under the law and Art. 126(2)(a) that requires
justice to be done to all irrespective of their social or economic status.

Court held that Chapter 4 of the Constitution deals with protection and
promotion of fundamental and other human rights and freedoms. That
some of the rights and freedoms are absolute while others are subject to
some limitations and qualifications. The question is whether the
impugned section imposes limitation on the right to access to the
petitioner and if so whether such limitation can be justified under Art. 43
of the constitution. That the petitioner’s case is based on discrimination
under Art. 21 and not Art. 28 which provides for access to court. There is
no dispute that the impugned section imposes a restriction on the tax
payer’s right of accessing court to air whatever grievance he or she has
about the assessment of the tax authority but payment of tax is a duty of
every citizen under the constitution, see Art. 17. That the limitation
imposed by the impugned section are not arbitrary, unreasonable and
demonstrably justified in a free democratic society. That the section does
not contravene any of the cited Articles of the constitution.

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TOPIC X

THE LAW, PROCEDURE AND PRACTICE IN ELECTION PETITIONS.

Election Petition Rules

The trial by election petitions is governed by special Act and rules which
must be construed strictly. The practice and procedure in respect of a
petition shall be regulated, as nearly as may be, in accordance with the
Civil procedure Act and rules made under that Act relating to trial of a
suit in the High court, with such modifications as the court may consider
necessary in the interests of justice and expedition of the proceedings.

R.15 of the Presidential Elections (Election Petition) Rules 2001 provides

that subject to the provisions of these Rules, the practice and procedure
in respect of a petition shall be regulated, as nearly as may be, in
accordance with the Civil Procedure Act and the Rules made under that
Act relating to the trial of a suit in the High Court, with such
modifications as the Court may consider necessary in the interests of

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justice and expedition of the proceedings. See also R.17 of the

Parliamentary Elections (Election Petitions) Rules SI 141-2

These rules take precedence over the Civil Procedure Rules. Any special
rules of procedure not contained in these rules may have been or may be
made by the High court shall, where they conflict with these rule, prevail
and be deemed to govern the procedure in the matter mentioned in the
special rules-O.49 r 4 CPR.

General Principles of Elections

The principles were laid down by the Chief Justice Odoki in his judgment
in the Presidential Election Petition No. 1 of 2001, Rtd Col Dr Kiiza
Besigye v Yoweri Kaguta Museveni and Electoral Commission. They
are summarized as follows;

a) The election must be free and fair

b) The election must be by universal adult suffrage, which underpins
the right to register and vote
c) The election must be conducted in accordance with the law and
procedure laid down by parliament.
d) There must be transparency in the conduct of election
e) The result of the election must be based on the majority of the
votes case.

Challenging a presidential Election.

Any aggrieved candidate may petition the Supreme Court and the
petition shall be lodged in the Supreme Court for an order that a
candidate declared by the Electoral Commission elected as President was
not validly elected-Art. 104(1) of the Constitution and Section 59
Presidential Elections Act.

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Mode of Presentation of Election Petition

A presidential election petition must be presented to the Supreme Court

and shall be lodged in the registry within 10 days after the declaration of
the election results-Art. 104(2) Constitution and Section 59(2)
Presidential Elections

R.4 of the Presidential Elections (Election Petitions) Rules 2001 requires

the petition to state the following;

a) the right of the petitioner to present the petition in accordance with

section 58 of the Act;

b) the holding and result of the election together with a statement of the
grounds relied upon to sustain the prayer of the petition;

c) the address of the place where personal service can be effected on the
respondent.

The only grounds to be specified in a petition for the annulment of an

election are those specified in subsection (6) of section 59 of the Act.
They include-

(a) non-compliance with the provisions of this Act, if the court is

satisfied that the election was not conducted in accordance with
the principles laid down in those provisions and that the non
compliance affected the result of the election in a substantial
manner;

(b) that the candidate was at the time of his or her election not
qualified or was disqualified for election as President;

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(c) that an offence under the Act was committed in connection with
the election by the candidate personally or with his or her
knowledge and consent or approval.

Offences under the Act include;-Bribery-s.64, procuring prohibited

persons to vote, s. 65, publication of false information as to illness,
death or withdrawal of candidate-s.66, obstruction of voters s.67.
Other offences include false statements concerning character of
candidates-s.69, misconduct at candidates’ meetings-s.70, failure by
presiding officers to furnish election returns-s.71, offences relating to
voting-s.72, unauthorized voting or voting more than once-73,
making wrong returns of an election-74, personation-s.75, offence of
undue influence-s.76, prohibition of certain activities on polling day-
s.77, defacement of notices and posters-s.78, obstruction of election
officers-s.79.

The petition shall be divided into paragraphs numbered consecutively,

each of which shall, as nearly as may be, confined to a distinct portion of
the subject; and no costs shall be allowed for the drawing or copying of
any petition not substantially in compliance with this sub rule unless the
Court otherwise orders.

The petitioner or the advocate of the petitioner shall, at the time of

presenting the petition (a) pay a fee of twenty currency points; (b) make a
deposit of fifty currency points as security for costs. Failure to comply
with this requirement the petition shall not be received by the Registrar-
R.5.

Service of the Petition

A presidential petition must be served immediately on the respondent or

each respondent and such service shall be personal-R.5 & 6.

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Answer of respondent to petition.

R.8 provides that if the respondent wishes to oppose the petition, the
respondent shall, within three days after the petition was served on him
or her, file an answer to the petition. The respondent’s answer shall be
filed with the Registrar together with ten copies of it for use by the Court
and for service on the Attorney-General, the Commission and the other
respondents, if any. The answer of the respondent shall be accompanied
by (a) an affidavit stating the facts upon which the respondent relies in
support of his or her answer; (b) a fee of five currency points.

The respondent shall, immediately upon filing the answer with the
Registrar, serve a copy on the petitioner or his or her advocate. Where
the respondent requires further and better particulars of the petition he
or she shall apply for the particulars together with the answer and the
petitioner shall, subject to the directions of the Court, supply any
particulars requested on or before the date set for trial of the petition.

Evidence at trial

All the evidence at the trial, in favour of or against the petition shall be
by way of affidavit read in open court-R.14(1). However, with leave of the
court. Any person swearing an affidavit, which is before the court, may
be cross examined by the opposite party and re-examined by the party
on behalf of whom the affidavit is sworn-R.14(2)

Burden and Standard of Proof

The election of a candidate as president shall only be annulled if proved

to the satisfaction of court-s.59 (6) Presidential Elections Act. The burden

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of proof lies on the petitioner to satisfy the court on balance of

probabilities that non compliance with the law and principles affected the
result of the election in a substantial manner. The standard of proof is
higher than in an ordinary civil case and is similar to standard of proof
required to establish fraud, but it is not as high as in criminal cases
where proof beyond reasonable doubt is required.

Challenging a parliamentary or Local Government Election.

Form and Content of a Petition

A Petition questioning an election under the Parliamentary Elections Act

and the Local Government Act must be in a prescribed form.

Under R.4 of the Parliamentary Elections (Election Petitions) Rules, the

form of a petition shall be as specified in the Schedule to the Rules.
Every petition shall state—

(a) the right of the petitioner to present the petition in accordance with
section 90 of the Statute;

(b) the holding and result of the election together with a statement of the
grounds relied upon to sustain the prayer of the petition; and

(c) the address of the place where personal service can be effected on the
respondent

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The only grounds on which an election may be set aside are those set out
in section 61 of the Statute. They include-

(a) non-compliance with the provisions of the Act, if the court is

satisfied that the election was not conducted in accordance with
the principles laid down in those provisions and that the non
compliance affected the result of the election in a substantial
manner;

(b) that a person other than the won elected won the election.

In the case of Kasibante Moses vs. Katongole Singh Marwah &

Electoral Commission No. 23/2011 the petitioner was declared winner
of the parliamentary seat and the 1st respondent applied for recount of
votes under s.55(1) of the Parliamentary Elections Act and was declared
winner after the recount. Court held that the illegal recount conducted
by the returning officer, kampala, at Mengo court did not affect the
declaration of the winner of the parliamentary elections. It did not do so
because the recount was illegal. That the winner of the parliamentary
elections who was declared then remains the winner to date. His
declaration was not affected by the outcome of the illegal recount
because it was incapable of doing so. Court made a declaration that
under the provisions of section 63(4)(b) of the PEA, that the petitioner
was validily elected member of parliament for Rubaga North
constituency. An order made under the provisions of s.63(6)(b)(1) PEA
requiring the first respondent to vacate the seat for Rubaga North
constituency in parliament. An order requiring the first and second
respondents each to pay 50% of the costs of the petitioner in respect of
the petition.

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(c) that an illegal practice or any other offence under the Act was
committed in connection with the election by the candidate
personally or with his or her knowledge or consent or approval or

(d) that the candidate was at the time of his or her election not
qualified or was disqualified for election as member of parliament;

In the case of Paul Mwiru v Hon. Igeme Nathan Nabeta Samson & 2
Others (ELECTION PETITION APPEAL NO.6/11) [2011] UGCA 9 first
appeal from the decision of the High Court wherein the appellant’s
petition seeking to annul the election of the first respondent as a Member
of Parliament for Jinja East Constituency was dismissed. On appeal
Byamugisha JA held that Article 80 of the Constitution provides for
qualifications and disqualifications of members of Parliament. That it
states that a person is qualified to be a member of Parliament if
that person has completed a minimum formal education of
Advanced Level standard or its equivalent which shall be
established in a manner and at a time prescribed by Parliament by
law.” That Parliament enacted the Parliamentary Elections Act and
provided in section 4 (1)thereof that “A person is qualified to be a
member of Parliament if that person has completed a minimum
formal education of Advanced Level standard or its equivalent.”

That the plain or literal meaning of section 4(1) (c ) of the above Act is
that a person qualifies to be a member of Parliament on proving to the
satisfaction of the Electoral Commission to have completed ‘A’ level
standard of education or its equivalent as the minimum level of
education. In doing so the candidate has to produce a certificate issued
by the National Council for Higher Education in consultation with UNEB.
Such certificates which are presented for equating must be valid and
authentic. That equating of academic papers for purposes of elections is

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not a once life time exercise unless the law is amended. That the
evidence on record prove that there was no consultation between UNEB
and the NHHE on the totality of the 1st respondent’s academic
qualification before the issuance of the certificate.

Illegal practices and offences under the Act include;-Bribery-s.68 The

Parliamentary Elections (Amendment) Act 2010 Section 68 of the
principal Act amended by inserting at the end, the following new
subsections“(7) A candidate or an agent of a candidate shall not carryon
fundraising or giving of donations during the period of campaigning and
a person who contravenes subsection (7) commits an illegal practice. For
purposes of this section fundraising shall not include the soliciting of
funds for candidates to organize for elections, procuring prohibited
persons to vote, s. 69, publication of false information as to illness, death
or withdrawal of candidate-s.70, obstruction of voters s.71. Other
offences include false statements concerning character of candidates-
s.73, misconduct at candidates’ meetings-s.74, failure by presiding
officers to furnish election returns-s.75, offences relating to voting-s.76,
unauthorized voting or voting more than once-77, making wrong returns
of an election-78, personation-s.79, offence of undue influence-s.80,
prohibition of certain activities on polling day-s.81, defacement of notices
and posters-s.82, obstruction of election officers-s.83.

In the case of Bakaluba Peter Mukasa v Namboze Betty Bakireke

(Election Petition Appeal No.4 Of 2009) SC, the Appellant together
with the Respondent and one Kawadwa Dawood Katamba participated as
contestants in the Mukono North Constituency Parliamentary Election
held on 23rd February 2006. The Electoral Commission declared the
Appellant the winner of the election with 22,680 votes. The respondent
obtained 22,232 votes and Kawadwa Dawood got 627 votes. The

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respondent was dissatisfied with the results and petitioned the High
Court which annulled the election because it found that the election had
been marred by malpractices. The Appellant was dissatisfied with that
decision and appealed to the Court of Appeal. By a majority decision of
two to one, the Court of Appeal upheld the decision of the trial judge,
hence the appeal to the Supreme Court.

The first ground was that “The learned majority Justices of Court of
Appeal erred in law and fact when they failed to make a finding on
whether the appellant was denied a right to a fair trial by reason
of non disclosure of specific particulars of alleged bribery”Court
held that bearing in mind the principles involved under the concept of
fair hearing and trial, given that the appellant did have fair notice of the
case which he duly responded to, court 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. 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. In the peculiar
circumstance of this case, it would defeat justice to hold that a case 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 and that there was a denial of his
right of fair hearing.

The second ground of appeal was that “The learned majority Justices
of the Court of Appeal erred in law and fact when they failed to re-
appraise the evidence of the case before the trial court thereby
arriving at wrong conclusions and finding.” Court held that this was
an election petition where, under Rule 15, all evidence at the trial is by

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way of affidavit except where a person who swore an affidavit is cross-

examined by the opposite party or re-examined or where the court of its
own motion examines any witness.

That it would be too narrow to say that one is guilty of bribery if one
gives Shs.1,000/= to an individual voter to vote for him, but he is not
guilty of bribery if he gives Shs.100,000/= to a group of voters to buy or
do something for their common use so that they vote for him. That the
appellant went to the village two days before the election asking the
voters in that village to vote for him. The people set their terms, i.e. he
had to give them money to repair their boreholes before they could vote
for him. He obliged. This was bribery envisaged by Section 68 of the
PEA. Proof of one act of an illegal practice is enough on its own to annul
an election.

In the case Mukasa Anthony Harris v Dr. Bayiga Michael Philip

Lulume (Election Petition Appeal No.18 of 2007) SC an appeal from
the decision of the Court of Appeal which upheld the judgment of the
High Court (Musoke-Kibuuka, J.,) allowing a petition filed by the
respondent. The judge set aside the election of the appellant and
declared the parliamentary seat vacant. On 23rd February, 2006, there
were both presidential and general parliamentary elections throughout
this country. Mukasa Anthony Harris, the appellant, Dr. Bayiga Michael
Philip Lulume, the respondent, together with one Luwaga Livingstone
contested for the parliamentary seat of Buikwe County South
Constituency. The appellant obtained 13,690 votes; the respondent
obtained 13,026 votes while Luwaga Livingston got 3,994 votes.
Consequently the Electoral Commission declared the appellant the
winner and therefore the Member of Parliament for that constituency.

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The respondent was dissatisfied with the result of the election. He

petitioned the High Court at Jinja and raised many complaints against
both the Electoral Commission and the appellant. In respect of the
appellant, the respondent alleged, among other things, that the appellant
had committed various electoral offences, including bribery, personally or
through his agents. On the ground of failure to properly evaluate the
record (sic) and therefore came to a wrong decision, the Supreme
Court held that the learned trial judge properly directed himself when,
after referring to Section 61(1) of the PEA, 2005, he stated that “It is
settled law that the burden of proof in an election petition lies upon
the petitioner who is required to prove every allegation contained in
the petition to the satisfaction of the court. The standard of proof
is a matter of statutory regulation by Subsection 3 of Section 61 of
the PEA, 2005. The Subsection provides that the standard of proof
required to prove an allegation in an election petition is proof upon
the balance of probabilities”. It was further held that it is hardly
reasonable to imagine that a parliamentary candidate could give out
money to people who were not voters in a particular locality. Nor is it
reasonable to imagine that money could have been given out for anything
else other than to persuade the voters to vote for the appellant. That
there is ample evidence showing that money was released by the
appellant for bribing.

In the case of Paul Mwiru v Hon. Igeme Nathan Nabeta Samson & 2
Others (ELECTION PETITION APPEAL NO.6/11) [2011] UGCA 9 on
appeal Byamugisha JA held that Section 68 of the PEA makes
provisions for illegal practices. The provisions of the section make the
giver and recipient guilty of an illegal practice. The commission of an
illegal practice once proved to the satisfaction of the court is sufficient
ground in itself under section 61of PEA to set aside the election of a

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candidate as a Member of Parliament. It is therefore essential in

allegations of bribery for the party alleging the same to prove on a
balance of probabilities that the person or the persons allegedly bribed
were registered voters. That from the affidavit evidence, there is no
dispute that welding and compressor machines were delivered to a
number of garages in and around the constituency which the 1 st
respondent represents in Parliament. The exercise took place during the
campaign period. That the evidence proved to the satisfaction of the
court that the 1st respondent is the one who personally distributed the
said machines thus committing an illegal act of bribing voters. This act
alone is sufficient to nullify the 1st respondent’s election as a Member of
Parliament

The petition shall be divided into paragraphs numbered consecutively,

each of which shall, as nearly as may be, be confined to a distinct
portion of the subject; and no costs shall be allowed for the drawing or
copying of any petition not substantially in compliance with this sub rule
unless the court otherwise directs. The petition shall conclude with a
prayer, as for instance, that the court may order—

(a) that some specified person be declared elected other than the
candidate declared validly elected; or

(b) that the election be set aside and a new election held.

At the foot of the petition shall be stated (a) an address for service within
five kilometers from the office of the registrar to which documents
intended for the petitioner may be sent and the name of the occupier;
and (b) a note, signed by the petitioner giving the name of the petitioner’s

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advocate or, as the case may be, stating that the petitioner acts for
himself or herself.

The petition shall be accompanied by an affidavit setting out the facts on

which the petition is based together with a list of any documents on
which the petitioner intends to rely.

Who may present a petition (Locus standi)

Section 60Election petitions under the Act shall be filed in the High
Court. An election petition may be filed by any of the following persons—
a) a candidate who loses an election; or (b) a registered voter in the
constituency concerned supported by the signatures of not less than five
hundred voters registered in the constituency in a manner prescribed by
regulations.

Every election petition shall be filed within thirty days after the day on
which the result of the election is published by the Commission in the
Gazette. For the purposes of the section, where any rules of court
require a petition to be filed in any particular registry of the High Court,
the filing of the petition in a registry of the High Court other than in the
first-mentioned registry shall not invalidate the petition; and the registrar
at the place where it is filed shall take necessary steps to cause the
petition to be transferred to the appropriate registry but the court may
award costs in respect of such filing.

Who may be the respondent?

Any person whose election is questioned by a petition, and the Electoral

Commission or any returning officer of whose conduct a petition

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complains, may be made a respondent. An unsuccessful candidate

cannot be made a respondent to an election petition against his or her
will. Where more petitions than one are presented in relation to the same
election, the court may direct that some or all of those petitions be dealt
with as one petition-R.18

Service of Petition

Sec.62 of the Parliamentary Elections Act notice of writing of the

presentation of petition accompanied by a copy of the petition shall
within 7 days after filing of the petition be served by the petitioner on the
respondent or respondents as the case may be. Within 7 days after filing
the petition with the registrar, the petitioner or his or her advocate shall
serve on each respondent notice in writing of the presentation of petition,
accompanied by a copy of the petition, and such service must be
personal.

In the case Mukasa Anthony Harris v Dr. Bayiga Michael Philip

Lulume (Election Petition Appeal No.18 of 2007) SC, the first ground
was that the learned Justices of Appeal erred in law and fact in
failing to find that petition was a nullity as there was non-service of
the notice and the petition. Tsekoko JSC held that Section 62 of the
P. E. A, 2005, reads as follows: “Notice in writing of a presentation of
petition accompanied by a copy of the petition shall, within 7 days
after the filing of the petition, be served by the petitioner on the
respondent or respondents, as the case may be”. Similarly Rule 6(1) of
the Rules, reads as follows: “Within 7 days after filing the petition
with the Registrar, the petitioner or his or her advocate shall serve
on each respondent notice in writing of the presentation of the
petition, accompanied by the copy of the petition”. That the
provisions of Section 62 and of Rule 6(1) are not mandatory and the use

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of the word "shall" in both provisions is directory and not mandatory.

The provisions direct what ought to be done because the two provisions
do not state what would happen if the notice and or the copy of the
petition are not served within the 7 days or indeed after the 7 days.
Normally either Section 62 itself or Rule 6(1) would have stipulated that
omission to serve the notice of presentation would lead to a specified
sanction which is missing in both provisions. Further, that there is no
provision, either in the Act itself or in the Rules, indicating what would
be the effect because of non-service. That the curative provisions where
there is default in complying with any of the Rules after the petition is
presented and or during trial of the petition, is found in Rule 19 to
extend time for service. That there is no material upon which court can
say conclusively that the appellant did not get the petition within the
prescribed period of 7 days and the two courts were right in declining to
dismiss the petition on account of non-service of the petition. That this is
a case where paragraph (e) of clause (2) of Article 126 of the Constitution
is applicable.

In the case of Kasibante Moses vs. Katongole Singh Marwah &

Electoral Commission No. 23/2011 held about non service of the
petition that the Supreme court of Uganda in the case of Mukasa
Anthony Harris vs. Dr. Bayiga Micheal Phillip Lulume, SC Election
Petition No.8/2007 gave a final position on this point. The omission to
serve the notice of presentation of the petition is an irregularity which
does not vitiate the proceedings in an election petition.

Where the respondent cannot be found within three days for effecting
personal service on him or her, the petitioner or the advocate of the
petitioner shall immediately make an application to the court supported
by an affidavit, stating that all reasonable efforts have been made to

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effect personal service on the respondent but without success.-r.6(4) If

the court is satisfied that all reasonable efforts have been made to effect
service on the respondent but without success, the court may order that
service be effected in any of the ways prescribed by Order V of the Civil
Procedure Rules for service other than personal service, fixing the date
for appearance within seven days.

The failure to serve the respondent with the petition within the
prescribed time will lead to striking out the petition-See Jude Mbabali vs.
Sekandi & Electoral Commission Election Petition Appeal No. of 2006.

Answer of respondent to petition

Under R.8, If the respondent wishes to oppose the petition, the

respondent shall, within ten days after the petition was served on him or
her, file an answer to the petition. The respondent’s answer shall be filed
with the registrar together with six copies of it for use by the court and
for service on the commission, the returning officer and the other
respondents, if any. The answer of the respondent shall be accompanied
by—(a) an affidavit stating the facts upon which the respondent relies in
support of his or her answer; and (b) a fee of fifty thousand shillings. The
respondent shall, within five days after filing the answer with the
registrar, serve a copy on the petitioner or his or her advocate. Where the
respondent requires further and better particulars of the petition, he or
she shall apply for the particulars together with the answer. The
petitioner shall, subject to the directions of the court, supply any
particulars requested on or before the date set for trial of the petition.

Time for presentation of election petition

Sec.60 (3) Parliamentary Elections Act provides that every election

petition shall be filed within 30 days after the day the results are

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published by the Commission in the gazette. Similarly a local government

election petition shall be filed within 14 days after the date on which the
results of the election have been notified by the Electoral Commission in
the gazette. The time set under the legislations within which to lodge a
petition must be strictly adhered to otherwise time cannot be extended
by court unless the statute provides for such extension. In the case of
Makula International Ltd v His Eminence Cardinal Nsubuga [1982]
HCB 11 is the authority for this proposition of law that a court has no
residual or inherent jurisdiction to enlarge a period of time laid down by
a statute.

Burden and Standard of Proof

The burden of proof in election petition lies on the petitioner who has to
prove his or her case to the satisfaction of the Court-S.61(1)
Parliamentary Elections Act. Any ground for setting aside an election
petition shall be on a balance of probabilities-S.61(3). Although the
standard of proof is on the balance of probability, it must be slightly
higher than in ordinary cases. This is because an election is of great
importance both to individuals concerned and the nation at large.

Withdrawal of Petition

R. 22 of the Parliamentary Elections (Elections) Rules, a petition shall not

be withdrawn except with leave of the court and after such notice has
been given as the court may direct. Where there is more than one
petitioner, no application for leave to withdraw the petition shall be made
except with the consent of the other petitioners. An application for leave
to withdraw a petition shall be supported by an affidavit of the petitioner
and his or her advocate, if any, stating the ground on which the petition
is sought to be withdrawn and also stating that to the best of their

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knowledge and belief, no agreement or terms of any kind has or have

been made or undertaking made in relation to the petition or, if any
lawful agreement has been made, stating the terms of the agreement.

The petitioner shall, when filing the application for leave to withdraw,
give to the registrar a sufficient number of copies for use by the court
and for service on the respondents, the Attorney General, the
commission and the returning officer, unless, in the case of the
commission

and the returning officer, they are respondents in the case.

If the court gives leave for the withdrawal of a petition, the court shall
make a report to the commission stating the reasons for the withdrawal.
If the petition is withdrawn, the petitioner shall be liable to pay the costs
of the respondent.

Appeals

S.66(1) a person aggrieved by determination by the High court in

determination of an election may appeal to the High Court. R. 29 the
notice of appeal may be given either orally at the time judgment is given
or in writing within seven days after the judgment of the High Court
against which the appeal is being made. R. 30 a memorandum of appeal
shall be filed with the registrar (a) in a case where oral notice of appeal
has been given, within fourteen days after the notice was given; and (b)
in a case where a written notice of appeal has been given, within seven
days after notice was given. R. 31the appellant shall lodge with the
registrar the record of appeal within thirty days after the filing by him or
her of the memorandum of appeal. R. 36 provides that subject to such
modifications as the court may direct in the interests of justice and
expedition of the proceedings, any rules regulating the procedure and

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practice on appeal from decisions of the High Court to the Court of

Appeal in civil matters shall apply to appeals under this Part of these
Rules.

The Parliamentary Elections (Amendment) Act 2010 amended section 66

of the principal Act and substitute for subsections (2) and (3) the
following—

“(2) The Court of Appeal shall proceed to hear and determine an appeal
under this section within six months from the date of filing of the appeal
and may for that purpose suspend any other matter pending before it.
Notwithstanding section 6 of the Judicature Act, the decisions of the
Court of Appeal pertaining to parliamentary elections petition shall be
final.”;

TOPIC XI

JUDICIAL REVIEW PROCEDURE

Public law concern the law governing relations between the individual
and public bodies, and the relations between different public bodies such
as central and local government. The courts have developed a body of
substantive principles of public law to ensure that public bodies do not
exceed or abuse their powers and that they perform their duties.

Judicial review is a nature of proceedings by means of which the High

Court exercises its jurisdiction of supervising inferior courts, tribunal
and other public bodies, commanding them to do what their duty
requires in every case where there is no specific remedy and protecting
the liberty of the subject by speed and summary interposition.

The primary method by which courts exercise their supervisory

jurisdiction over public bodies to ensure that they observe the
substantive principles of public law is by way of the application for
judicial review.

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The application for judicial review is specialized procedure by which the

prerogative remedies of Certiorari (to quash a decision), Prohibition (to
refrain unlawful action) or mandamus (to compel the performance of
duty) and alternatively, or in addition a declaration, or injunction.
Damages may also be awarded if one of the five remedies is granted and
damages would have been available if claimed in an ordinary suit.

Thus, the Courts will review an exercise of power to ensure that the
public body;

a) Has not made an error of law and fact;

b) Has considered all relevant factors, and not taken into account any
irrelevant factors or abused its discretion
c) Has acted for a purpose expressly or impliedly authorized by
statute
d) Has acted in a way that is so unreasonable that no reasonable
public body would act in that way; and
e) That the public body has observed procedural requirements and
the common law principles of natural justice or procedural fairness
and legitimate expectation has not improperly delegated its power.

Art. 42 of the Constitution provides for the right to just and fair
treatment in administrative decisions. That any person appearing before
any administrative official or body has a right to be treated justly and
fairly and shall have a right to apply to a court of law in respect of any
administrative decision taken against him or her.

The distinction between Judicial Review and Appeal lie in that an appeal
is concerned with the merits of a decision whereas review is concerned
with its legality. Under judicial review proceedings the court claims to
exercise a supervisory, not an appellate jurisdiction. An appeal involves
the transfer of a case from a lower court to a higher court for the purpose
of rehearing. The right of appeal is usually conferred by a statute, which
normally sets out the circumstances under which it may be invoked.

Application for Judicial Review

Section 36 Judicature Act provides for prerogative orders. It provides

that the High Court may make an order, as the case may be, of (a)
mandamus, requiring any act to be done; (b) prohibition, prohibiting any
proceedings or matter; or (c) certiorari, removing any proceedings or
matter to the High Court.

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Rule 3 of the Judicature (Judicial Review) Rules 2009 provides for cases
that are appropriate for judicial review. It states; An application for An
order of mandamus, prohibition or certiorari; or An injunction
under section 38 (2) of the Judicature Act restraining a person
from acting in any office in which the person is not entitled to act,
shall be made by way of an application for judicial review in
accordance with these rules.

Similarly an application for a declaration or an injunction may be made

by way of application for judicial review, and on such an application the
High Court may grant the declaration or injunction claimed if it
considers that, having regard to (a) the nature of the matter in respect of
which relief may be granted by way of an order of mandamus, prohibition
or certiorari; (b) the nature of the persons and bodies against whom relief
may be granted by way of such an order, and (c) all the circumstances of
the case, it would be just and convenient for the declaration or
injunction to be granted on an application for judicial review-R.3(2).

Any application for judicial review, any relief mentioned may be claimed
as an alternative to any other relief so mentioned if it arises out of, or
relates to, or is connected with the same matter-R.4

Time for filing an Application for Judicial Review.

R.5 provides for the time for applying for judicial review. An application
for judicial review shall be made promptly and in any event within three
months from the date when the grounds of the application first arose
unless the Court considers that there is good reason for extending the
period within which the application shall be made. Where the relief
sought is an order of certiorari in respect of any judgment, order,
conviction or other proceedings, the date when the grounds for the
application first arose shall be taken to be the date of that judgment,
order, conviction or proceedings if that decision is delivered in open
court, but where the judgment, order, conviction or proceedings is
ordered to be sent to the parties, or their advocates, (if any), the date
when the decision was delivered to the parties, their advocates or prison
officers, or sent by registered post.

The rule shall apply, without prejudice to any statutory provision which
has the effect of limiting the time within which an application for judicial
review may be made.

Mode of Applying for Judicial Review

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R. 6 application for judicial review shall be made by notice of motion. The

notice of motion must be served on all persons directly affected and
where it relates to any proceedings in or before a lower court and the
object of the application is either to compel the lower court or an officer
of the lower court to do an act in relation to the proceedings or to quash
them or any order made in the proceedings, the notice or summons shall
be served on the registrar of the court and, where any objection to the
conduct of the presiding officer is to be made, on the presiding officer.
There shall be at least ten days between service of the notice of motion
and the hearing. An affidavit of service is required.

R. 7 allows the applicant to amend his or her motion.

R.8 provides for claims for damages. That on an application for judicial
review the court may, subject, award damages to the applicant, if (a) he
or she has included in the statement in support of his or her application
for leave, a claim for damages arising from any matter to which the
application relates, and (b) the court is satisfied that, if the claim had
been made in an action begun by the applicant at the time of making his
or her application, he or she could have been awarded damages.

In the case of Picfare Industries ltd v AG &Anor H.C.MISC CAUSE

NO. 258 of 2013 Picfare Industries Limited brought the application by
way of Notice of Motion under the Judicature (Judicial Review) Rules
2009, R. 3 & 6 and S. 33 and 36 (1) of the Judicature Act Cap 13 seeking
orders that an order of Mandamus to compel the respondent Attorney
General and Treasury Officer of accounts Ministry of Finance, Planning
and Economic Development to carry out statutory duty to pay the
applicant the sum of UGX 18.692.568.714= (Eighteen Billion sis hundred
and sixty eight thousand seven hundred fourteen shillings) and that the
respondent appear before court to show cause why they should not pay
the decree holder/judgment creditor the money due from them or so
much there of as may be sufficient to satisfy the decree and the costs of
the mandamus proceedings for judicial review, an order for the Treasury
Officer of Accounts Ministry of Finance, Planning and Economic
Development to show cause why he should not be committed to civil
prison for nonpayment of the proceeds of the Consent judgment and
failure to implement the certificate of order against Government made by
the Court.

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Justice Stephen Musota held that from the record, the application was
filed on 19th April 2013 seeking to enforce a consent judgment entered
into on 20th May 2011. That rule 5(1) provides that“(1) An application
for Judicial Review shall be made promptly and in any event
within three months from the date when the grounds of the
application first arose, unless court considers that there is good
reason for extending the period within which the application
should be made”. That by filing this application on 30th April 2013
almost one year after the grounds arose, the application is clearly time
barred because the filing was clearly done more than three months from
due date. That it was held in Re Mustapha Ramathan for orders of
certiorari prohibition and injunction Civil Appeal 25 of 1996 (CA)
that:“Statutes of limitation are in their nature strict and inflexible
enactments. Their overriding purpose is interest reipublicalut sit
finis litum, meaning litigation shall be automatically stifled after
a fixed length of time irrespective of the merits of the particular
case.” That the proper procedure should have been for the applicant to
apply for extension of time within which to apply for judicial review
under Rule 5(2) of the Judicature (Judicial Review) Rules 2009, which
was not done in this case. The application incompetent and will be
struck out. That even if the application is not stuck out, it would all the
same not have succeeded because there is no indication in the
application that there is any decision complained of which is tainted with
any illegality, irrationality and procedural impropriety. Twinomuhangi
Vs Kabale District & others 2006 (1) HCB 130, 131 per Kasule Ag J
(as he then was). That the under lying principle in order to proceed in an
application for Judicial Review is for the applicant to show that the
respondent(s), a public body has taken a decision or done an act which is
tainted with illegality, irrationality and procedural impropriety. That
there is nothing to show that the respondents have taken any decision
nor done any act to show that the Attorney General will not pay to the
applicant the monies owed to them under the consent judgment. A writ
of mandamus will not issue to enforce doubtful rights or those rights
that are the subject of disputes. Afro Motors Ltd and OkumuRinga
Patrick AloysiousMisc Cause No. 693 of 2006 Arising from Misc
Application 203 of 2006. That the order sought to compel the
respondent to appear before court and show cause why they should not
pay the decretal amount to the applicant or so much there of as may be
sufficient to satisfy the decree and an order for the Treasury Officer of
Accounts Ministry of Finance, Planning and Economic Development to
show cause why he should not be committed to civil prison for non-
payment of the proceeds of the consent judgment are premature prayers
because the mandamus proceedings have not terminated. These payers
have been made when these proceedings are pending. It is only after an

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order for mandamus has been granted that an applicant can properly
move court against the respondent to show cause why they have not paid
the decretal sum. These prayers are to say the least speculative. Such
speculative circumstances produce not an ‘aggrieved’ “party” nor, indeed,
a real dispute that is justifiable in any court of law

However in the case of GoodMan Agencies Ltd &Ors vs. A.G hccs No.
719/1997 an application for judicial review on which an order for
mandamus directing the government through the commissioner treasury
comply with the judgment and decree of court. Justice Tabaro held that
by judgment dated 14-11-2005 it was decreed that government do pay a
sum, that subsequent ruling of court it was ordered that the decretal
amount be paid in court but to date the defendant Attorney General has
not met the decretal amount. That ordinarily judgment creditors would
be entitled to proceed with execution, but execution cannot be permitted
against the government. That since there is no other mode or channel for
recovery of the decretal amount, an application is granted and an
application of mandamus shall be fixed.

In the case of Uganda Tax Operators & Drivers Association v Kampala

Capital Council Authority HC MISC. APPLICATION 137 OF 2011 an
application for Judicial Review was brought under Articles 26, 28(1) and
42 of the Constitution, S. 36 of the Judicature Act and Rules 3(1) (a),
3(2), 6 and 8 of the Judicature (Judicial Review) Rules, 2009 seeking an
order of certiorari quashing the decision of the 2nd respondent that “the
applicant’s contract expires 31stOctober 2011 and that the
Management of the Taxi Park shall revert to KCCA and that the
management is to engage in revenue collection as communicated in
the memo of 18thOctober”, an order of Prohibition and or Injunction
restraining the respondent and their servants or agents from interfering
with the applicants management contract of taxi operations in and
around the city expiring 31stOctober 2014, an order awarding
general/exemplary damages to the applicant for the loss incurred arising
out of the persistent interference with its performance under the
management contract to its detriment by both the respondents.

Justice Eldad Mwangusha held that under Section 36(1) of the

Judicature Act (Cap 13) of the Laws of Uganda the High Court may, upon
application for judicial review, grant any one or more of the following
reliefs in a Civil or Criminal matter. 1. An order of mandamus, requiring
any act to be done; 2. An order of prohibition, prohibiting any
proceedings or matter; 3. An order of certiorari, removing any
proceedings or matter into the High Court; 4 An injunction to restrain a
person from acting in any office or matter.5. A declaration or injunction

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not being an injunction referred to in paragraph (d) of this Sub-section.

That the reliefs underlined are the reliefs sought in this application in
addition to damages which are provided for under Section 36(2) of the
Act. That in the case of John Jet Tumwebaze vs Makerere University
Council and two others (High Court Civil Application No. 78 of
2005).The Hon Justice RemmyKasule Ag. Judge as he then was states
that an order of certiorari issues to quash a decision which is ultra vires
or vitiated by an error on the face of the record while the order of
prohibition goes out to forbid some act or decision which would be ultra
vires. He adds that while certiorari looks at the past, prohibition looks at
the future. That from the pleadings by both parties the controversy is on
whether or not there was an extension of the applicant’s contract to
30.10.2014 and if whatever the respondents are doing infringes on the
applicant’s right to run the contract then the solution lies in an ordinary
suit where the validity of the contract will be tried and finally resolved
and not in the prerogative orders of certiorari and prohibition. That this
Court would find the same difficulty granting the orders sought without
vindication of the applicant’s rights under the contract and for this
reason Court resolves the issue as to whether or not this is a proper case
for Judicial Review in the negative.

In the case of Kihika v Igeme Nabeta& 6 Ors (HCM CAUSE NO. 88 OF

2014) the application under Articles 42 and 50 of the Constitution,
Sections 33 and 36 Judicature Act, Rules 3, 4, 6 and 7 of the Judicature
(Judicial Review) No. 11 of 2009 and Section 98 of the Civil Procedure
Act, seeking orders that an order of Certiorari to issue against the
respondents jointly and/or severally quashing their recommendations
and/or decisions by which they purported to terminate the applicant’s
position as Acting Managing Director of Uganda Broadcasting
Corporation and referred him to “his” parent Ministry, a declaration that
the respondents jointly and/or severally acted ultra vires and illegally
and thus occasioned miscarriage of justice against the applicant, when
they made the aforesaid recommendations, an order of mandamus
compelling and directing the respondents to restore the applicant in his
position as the Acting Managing Director of Uganda Broadcasting
Corporation, an order of prohibition, prohibiting the respondents from
further recognizing the unlawful appointment of Eng. Angello Nkeeza as
the Acting Managing Director, an injunction restraining the respondents
from interfering with the applicant’s position as Acting Managing
Director, general, exemplary and punitive damages.

The issue was whether the application for Judicial Review is

properly brought to court.

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On whether the applicant ought to have raised a complaint to the Labour

Officer as provided under Section 93 and 94 of the Employment Act,
Court held that it has had occasion to pronounce itself on this issue in
Hilda Musinguzi Vs Stanbic Bank (U) Ltd HCCS No. 124 of 2008,
where court ruled that the unlimited original jurisdiction of the High
Court granted under Article 139 (1) of the Constitution of the Republic of
Uganda, cannot be ousted by the granting of jurisdiction by a statute to
another body. See also Habre International Co. Ltd Vs Kassamand
Others [1999] EA 125, and David B. Kayondo Vs The Cooperative
Bank (U) Ltd CA 10/91.

As to whether the applicant had the option of filing a matter in the

Industrial Court, Court found that the applicant filed a Judicial review
matter seeking the quashing of certain decisions through orders of
Certiorari. Judicial review matters, are by administrative arrangement,
handled exclusively by the Civil Division of the High Court. The judicial
review application was therefore, appropriately filed in the civil division of
the High Court

That Rule 3 of the Judicature (Judicial Review) Rules provides for cases
that are appropriate for judicial review. It states; An application for An
order of mandamus, prohibition or certiorari; or An injunction
under section 38 (2) of the Judicature Act restraining a person
from acting in any office in which the person is not entitled to act,
shall be made by way of an application for judicial review in
accordance with these rules. Rules 6 (1) provides for the mode of
applying for judicial review. It states; “In any criminal or civil cause
or matter, an application for judicial review shall be made by
notice of motion in the form specified in the schedule to these
rules.”

That given the nature of the remedies sought in the application, the
application is properly before court. The issue of whether those remedies
are available to the applicant would have to be determined at the point of
determining the merits of the main application, which in this case is not
possible without submissions from the applicant. Given the nature of the
remedies sought in this application, the application is properly before
court. The issue of whether those remedies are available to the applicant
would have to be determined at the point of determining the merits of the
main application, which in this case is not possible without submissions
from the applicant

The second issue was whether in the circumstances the applicant

was unlawfully terminated from the position of Acting Managing

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Director of Uganda Broadcasting Corporation. Court held that without

any submissions from the applicant to the contrary, the Board and the
Minister acted within the powers vested in them respectively by the law.
That the applicant has not presented valid reasons for court to find that
he was unlawfully terminated from the position of Ag. Managing Director
of Uganda Broadcasting Corporation.

TOPIC 12

Procedure, Practice & Proceedings at the East African Court of

Justice

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