CIVIL PROCEDURE QUESTIONS AND ANSWERS (Part 1)

[LDC STYLE]

1. What are the four cardinal objectives of civil procedure rules

i. To ensure order in administration of justice
ii. To ensure that the court is assisted in reaching a just
resolution of the dispute
iii. To formulate issues which the court has to determine and
give a fair notice thereof to the parties
iv. To promote transparency throughout the trial

2. What is the effect of failure to serve a notice of intention to sue

It may disentitle an advocate to fees

3. What are originating summons

This is where the procedure is by presentation of a string of questions

to court for determination

4. What is the major distinction between a notice of motion and

chamber summons

Chamber summons is issued by the authority of court while notice of

motion is brought by a party seeking relief or remedy from court

5. A party can choose to pay court fees either before or any time after
filing any court process. True or False

False

6. What is meant by the term “Next friend”

This is an officer of court appointed to look after the interests of an
infant in conduct of proceedings

7. Do pleadings contain matters of law of fact

They contain matters of fact

8. What are the three essential factors needed to sustain a cause of

action

i. The plaintiff must have enjoyed a right

ii. The right must have been breached
iii. The defendant is liable

9. A person who indicates in his will that upon his death, any suit
brought for or against his estate shall be in his name can be
granted his wish. True or False (Give reason for your answer)

False, because upon death a person ceases to have capacity to sue or

be sued

10.What is meant by the term limitation of actions

This is a time limit during which an action may be brought and there
after the potential plaintiff is barred and may no longer bring the
action

11.Name any three ways a person can be joined as a party in the

proceedings

i. By a defendant after proceeding with leave of court

ii. By a plaintiff after proceeding with leave of court
iii. By the court on application of any party
12.What is meant by the term amicus curie

A person who calls to the attention of the court some decision or

point of law, but does not become a party to proceedings

13.What happens when an infant who is a plaintiff in an existing

action represented by his next friend becomes of age and wishes to
adopt the proceedings

He or she should file in the registry to court a notice to the effect that
he has attained the age of majority and adopts the proceedings begun
or defended on his or her behalf

14.What can a defendant who is party to proceedings instituted by a

person who is found to be mentally incompetent

The defendant can file an application to court to stay the proceedings

until a next friend is appointed

15.What is a cause of action

A fact or set of facts which the plaintiff relies on to obtain a remedy

from court

16.What is the meaning of the term locus standi

This is the status which the law requires of a person to enable them to
invoke the jurisdiction of the court in order to be granted the desired
remedy

17.How do you tell that a plaint discloses a cause of action

You look at the plaint and its annexure

18.Name any circumstance under pleadings will be struck out

When it does not disclose any cause of action

19.After how long should a defence be filed in response to summons

Within 15 days after service of summons

20.Why cannot proceedings be discontinued by a party who becomes

mentally incompetent during the pendency of proceedings

Because the party is unable to revoke the previous authority given to

his or her counsel to commence or defend the proceedings

21.What is the effect of change of name by a company to an ongoing

legal proceeding by or against it

The change of name has no effect and does not render defective any
legal proceedings instituted by or against the government

22.When does one become a defendant or respondent in civil

proceedings

On filing an and being served with summons or other notice in an

action without the necessity of filing a defence

23.What is an ordinary suit

This is the usual method of commencement where there is a

substantial dispute as to facts and the suit is normally instituted by
way of plaint
24.Who bares the responsibility to prepare, produce and serve
summons

It is the responsibility of each party to prepare, produce and serve his

or her pleadings upon the opposite party

25.What are inter pleader proceedings

It is a suit to determine a right to property held by a usually

disinterested third party who is in doubt about ownership and who
therefore deposits the property with the court to permit interested
parties to litigate ownership

26.Explain this principle “once statute barred, always statute barred”

This is the underlying principle of the law of limitation that once a

cause of action has become statute barred, subsequent developments
cannot revive it

27.What is the function of pleadings

To help ascertain with precision the matter on which the parties

differ and those on which they agree thus arriving at clearly defined
issues which both parties desire a judicial decision

28.Outline any four grounds for joinder of parties

i. Where relief sought is in respect to the same or a series of
transactions
ii. Where there is a common question of fact or law
iii. Where leave of curt is obtained
iv. Where the person‟s presence is necessary
29.What are pleadings

Any petition or summons including statements in writing of the

claim or demand of any plaintiff and the defence of any defendant to
them, and the reply of the plaintiff to any defence or counter claim

30.What is the cardinal rule of proceedings

Every pleading shall contain a brief statement of material facts which

the party relies for a claim or defence as the case may be

31.What are exparte proceedings

These are proceedings were not all parties are present or given the
opportunity to be heard

32.Can a defendant be penalized for raising a preliminary objection

which was not mentioned in the statement of defence

No, they cannot, but it is always convenient especially for the

plaintiff so that they can prepare a response

33.What is the rationale for having limitations of actions

The potential defendant will not have to live with the risk of legal
action indefinitely and old actions are difficult to try when memories
are crowded and evidence is probably lost

34.What is a plaint

It is a statement of claim, a document or memorial by presentation by

presentation of which a suit is instituted
35.What is the advisable step to be followed in instituting an action
against a company

It is advisable to ascertain from the Registrar of companies or from

the Act of incorporation the proper name of the company

36.Outline four advantages of exchanging pleadings

i. Parties get to know what is in dispute

ii. Helps to determine the mode of trial
iii. Helps in the final determination of suits
iv. Saves expenses in procuring evidence knowing what will be
brought at trial

37.Through whom must an infant file a suit

Through a next friend

38.What is the opposite of the term next friend

Guardian ad litem

39.What is the hierarchy of the subordinate courts established under

the MCA Cap 16

i. The Chief Magistrate Court

ii. Magistrate Grade I
iii. Magistrate Grade II
iv. Magistrate Grade III (have been scrapped

40.What is the pecuniary jurisdiction of the Chief Magistrate Court as

per the amendment

Fifty million shillings (under the Magistrate (Amendment) Act 2007

 41.What do you understand by the term third party proceedings

This is an action involving the plaintiff‟s claim taken by the

defendant for contribution or ordinary indemnity against a third
person or a co-defendant as third party

42.The summons is supposed to be effected within 21 days from the

date of issue, except that the time may be extended on application
to court. O 5. R 1(2)). .When summons have been issued by the
court and the person who is supposed to serve them fails to them
in the specified date thereof , such summons are expired. What
should be done to make them valid them?

They should be returned to the court for renewal.

43.Briefly explain how service of summons on the government is

effected.

Service on the government must be on the AG and is effected by

delivering or sending the summons to the Attorney General‟s Chambers

44.Summons can be served any time and day including Sunday as

long as it is before 6.00 pm. True or false.

False

45.How are proceedings of judicial review commenced?

By notice of motion

46.What is a petition?

A petition is a method by which proceedings are commenced as prescribed

by statute, statutory instrument or rules.
 47.What is the meaning of the phrase, “republicae ut sit finis iitum?”

It means that litigation shall be automatically stifled after fixed length of

time, irrespective of the merits of a particular case.

48.Briefly explain what you understand by, “res judicata”.

Means a thing or matter adjudged; a thing judicially acted upon or

decided; a thing or matter settled by judgment

49.What is the effect is the effect of a judgment passed by a court,

which has no jurisdiction.

The judgment, is nullity and not only voidable.

50.What do you understand by courts of record?

These are superior courts of judicature established under article 129 and
provided for under Article 129(2) and they include the Supreme Court, the
court of appeal and the High Court.

51.What is meant by the expression, „judicial discretion‟?

It refers to judges powers to make decisions without being obligated to

follow precedent or rules established by statute.

52.What is the justification for judicial discretion and judicial

activism?

Legislation cannot anticipate every eventuality; therefore they help in

filling the gaps or omissions
 53.An infant like a mentally incompetent person is under disability at
law to bring or defend an action. How does a minor defend an
action?

By his or her guardian ad litem

54.Define a third party proceeding.

An action involving the plaintiffs claim taken by the defendant for

contribution or indemnity against a third person or a co-defendant as third
party.(Under O1, r 14 CP Rules)

55.How can a party bring an application to court in the case where a

statute provides for an application to be made but does not specify
the form in which it is to be made, and the rules do not expressly
provide for any special provide for a special procedure?

By notice under O. 52, r 1 CPR.

56.What is the effect of failure by an advocate representing a minor to

file authority, and the plaint is taken off a file?

The court may order costs to be paid by personally by counsel.

57.What happens in case where pleadings on behalf of the minor are

filed without the authority of a next friend?

The pleadings are struck off the file by the court.

58.Who is trustee?

A person engaged in administrative duties with regard to property

entrusted to him for the benefit of others.

59.Under what circumstances may court order separate trials in case

of joinder of causes of actions?
Where it appears to the court that any causes of action joined in one suit
cannot be conveniently tried or disposed of together.

60.The determination of when time begins to run depends upon the

date on which the cause of action arises and the nature of the
action. When does time begin to run in an action brought under
contract?

A cause of action will arise as soon as the breach occurs.

61.What does a party have to prove in trespass or breach of contract

in order to found a cause of action?

Proof of trespass or breach of contract is enough to found a cause of action.

62.What is the general effect of a cause of action which statute

barred?

Once a cause of action is has become statute barred, subsequent

developments cannot revive it.

63.List four defences to limitation of causes of action.

i. Disability

ii. Fraud

iii. Concealment

iv. Mistake
 64.What is the effect of negotiations between the parties to suit on the
limitation of their action?

The limitation time continues to run and it is incumbent upon a party who
wants to file documents to do so within the within the allowed time.

65.List four pleadings.

i. plaint

ii. Written statement of defense

iii. Counterclaim

iv. petition

v. Reply to defense and defense to counterclaim

vi. Answer to petition

vii. Originating summons

66. What is the rationale for res judicata?

But for this rule, there would be no end to litigation and no security for
person: the rights of persons would be involved in endless confusion and
great injustice done under the cover of the law.

67.Describe the mode of service of summons.

Mode of service of summons is stipulated under order5, r.8 that, service of

summons service of summons shall be made by delivering or tendering a
duplicate of the summons signed by the judge or an appointed officer and
sealed by the court.
 68.Define a counter claim.

It is a cross claim, which the defendant raises in the very action brought
against him by the plaintiff, instead of himself bringing a separate,
independent action against the plaintiff.(Order 8, rule 2 CPR )

69.What do you understand by the term set off?

Setoff is claim by the defendant to a sum of money; whether of an

ascertained amount or not, which is relied on as a defence to the whole or
part of the claim made by the plaintiff.

70.The plea of setoff can be used as way defence to the plaintiff‟s

claim Explain what happens where the setoff exceeds the claim.

The defendant may plead in his defence a setoff of part of the debt due
from the plaintiff, and may counterclaim for the residue of it, to recover
judgment against the plaintiff for the excess.

71.Name any four grounds the court may exercise its right to join
parties

i. Court may order any unnecessary or improper person to

cease to be a party
ii. Add any person who is necessary for effective adjudication
of the proceedings
iii. Add any successor of a deceased or bankrupt party or a
corporate party that has been wound up or dissolved
iv. Consent of the person added
72.Who is an intervenor

An intervenor is one, who on his own application and with leave of

court, is added to an action pending between others

73.Give four objects of third party proceedings

 i. To prevent multiplicity of actions
ii. To prevent the same issue from being heard twice with the
possibility of reaching different results
iii. To have the issue between the defendant and third party
bound by the decision in the original action between the
plaintiff and the defendant
iv. To have the issue of the defendant and third party to be
heard as soon as possible after the decision in the original
action
74.On which grounds may third party proceedings be instituted

i. When there is a claim for contribution or indemnity

ii. Where the relief is related to the original subject matter
iii. Where the determination is of related issues
75.What are the requirements of an application by way of
interpleader

i. The applicant must not claim any interest in the subject

matter in dispute other than for charges or costs
ii. There must be no collision between the applicant and any of
the claimants
iii. The applicant should be willing to pay or transfer the subject
matter into court or dispose of it as court may direct
76.What is the general effect of expiration of a limitation period

The remedy is barred but the plaintiff‟s right is not extinguished as

he or she other than using judicial means, can use any other lawful
mean to enforce the right

77.What is the limitation period for breach of contract

It is six years from the date of breach

78.Distinguish between general damages and special damages

General damages is such as the law will presume to be the natural
consequence of the defendant‟s act while special damages is such a
loss as the law will presume to be the consequence of the defendant‟s
act dependant on special circumstances of the particular case

79.What principles govern the exercise of discretion or allowing

amendment of pleadings

i. The amendment should not work an injustice to the other

side
ii. Multiplicity of proceedings should be avoided as far as
possible and all amendments to this effect should be allowed
iii. An application which is made malafide should not be
accepted
iv. No amendment should be allowed where it is expressly or
impliedly prohibited by any law
80.Give any four circumstances under which leave to amend
proceedings may not be granted

i. Where the necessity for such amendment was obviously

apparent long before trial and was not asked for
ii. Where the amendment would involve a complete change in
the nature of the action
iii. Where the amendment involves setting up entirely different
claim from that which the defendant came to meet
iv. Where the amendment raises an entirely new ground of
defence or counter-claim
81.When does an amendment to pleadings take effect

It takes effect from the date of the original document which amended
it and not from the date when the amendment was made
82.What do you understand by the term vexatious pleading or action

A pleading or action is vexatious when it lacks bonafides or is

hopeless or oppressive and tends to cause the opposite party
unnecessary anxiety, trouble, and expense.

83.What is summons

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

answer a charge or claim or to give evidence

84.Name any three options available for service on a firm

i. It can be served upon any one or more of the partners

ii. At the principle pace of business if carried out in Uganda
iii. As the court may direct
85.How may High Court actions or suits be commenced

i. Ordinary suit or plaint

ii. Originating summons
iii. Notice of motion
iv. Petition
v. Chamber summons
86.State any three applications that may be brought by notice of
motion

i. Judicial review
ii. Habeas corpus
iii. Redress for breach of fundamental human rights provision
under the Constitution
87.Define the term summery procedure

Under summery procedure, instead of trial first the judgment, there

is judgment once and never a trial
88.State any four claims under which summery procedure may not
be applicable

i. Libel
ii. Slander
iii. Malicious prosecution
iv. Allegation of fraud
v. Probate actions
vi. Actions against the Government
89.What do you understand by the term „cheque Rule‟ under
summery procedure

This is where goods or services are paid by a cheque r bill of

exchange which is subsequently dishonored, the payee is entitled to
summery judgment on the cheque and the defendant is precluded
from setting off against that claim any counter claim for damages

90.What is the standard of proof in civil suits

It is on the balance of probabilities

91.Under what circumstances may consolidation of actions be

granted

i. Where there is a common question of fact or law

ii. Where there is right to relief out of the same or similar
transactions
iii. In cross action between the same parties arising out of the
same matter
iv. Same cause of action
v. Where consolidation will save expenses

92.There are various circumstances where court may refuse

consolidation, state any five of these circumstances
 i. When it is prejudicial to the plaintiff
ii. When it is impossible to save expenses
iii. Where different law is applicable
iv. Where a party is a plaintiff in one case and a defendant in
another
v. Where parties are represented by different advocates

93.What do you understand by the term partial consolidation

This is where there are several actions by different plaintiffs each

with a claim for personal injuries and the action is consolidated on
the issue of action or the issue of liability by which all parties agree to
be bound

94.Explain the meaning of test actions/suits

Where two or more persons have sued or been sued separately and
could have been joined in one suit, upon application by either party
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 stay all other suits until determination of selected suit or
failure to be a real trial of the issues

95.What is the effect of failure to comply with the formal

requirements o pleadings

Non compliance does not render the pleadings a nullity, but an

irregularity which may be amended or waived

96.What is the date of endorsement of pleadings

This is the date on which the pleadings are drafted

97.What is the primary object of a defence

i. To inform the plaintiff precisely how much of the statement

of claim the defendant admits and how much he denies
ii. What grounds and facts the defendant relies on to defeat the
claim of the plaintiff

98.What do you understand by the term traverse

A traverse in a defence is a denial of an allegation of fact made in the

statement of claim /plaint

99.A setoff can only be used as a shield and not a sword, explain

A plea of set off can only be used by way of defence to the plaintiff‟s
action

100. What are the conditions precedent to a successful counter-claim

The claim must be one in respect of which the defendant could

maintain a separate action and it must be of such nature that the
court would have jurisdiction to entertain a separate action