ENTIRE CIVIL PROCEDURE & LITIGATION IN SUMMARY
1. COMMENCEMENT
OF PROCEEDINGS:
(1) Civil Procedure Act:
S.2 definition section
manson house case.
S.3 Affirmation of powers
of court to hear cases unless limited otherwise by law.
S.19 every suit shall be
instituted in the manner required by the law.
(II) Civil
Procedure Rules (as amended)
0.4 Institution of suit by presentation of
plaint to the court, and entry on register. R1.
Court fees must be paid (look at decided cases)
0.36: Summary procedure on
specially endorsed plaint, judgment in default, setting aside decree.
0.37:
Circumstances of originating summons, trustees
etc vendor of land, mortgage member of partnership, discretionary nature of
order there under.
0.38: Company matters
except winding up, application by petitions, r.3
Application by
motion: rectification of register or summons in
chambers r.4
Application by
motion only r.5
Application by
summons in chambers r.6
All proceedings to
be entitled in the matter of the Company Act r.7
0.52: Save where expressly provided
all other applications to court shall be by notice of motion. R.1
Requirement for notice, r.2
grounds evidence affidavit r.3 want of notice r.4, exceptions to general rule
of hearing in open court to summons in chambers.
CASES:
1.
UNTA Exports V Commissioner of customs
[1970] EA 648:
a
proceeding is deemed commenced when a plaint is presented and a court fee is
paid.
2.
Kaur V City Auction Mart [1967] EA 108: Mode of service of
summons, accompanied by plaint, summons normally fix the day
for appearance of a defendant, they must be served on the defendant personally.
3.
Munyagwa Nsibirwa V Kamujaguzi [1972] EA 330: As
a general rule, actions should be commenced in the lower courts.
But High Court enjoys unlimited jurisdiction, filing in H.C did not render suit
defective. (See s.219 of the MCA)
0.37: O.S are
important to settle matters by court without the expenses of bringing an action
in a usual manner which do not involve a serious question. They are
returnable before a judge and are framed in the form of questions to be decided
by court, and the facts on which they are based.
4. In re- Hajj Suleiman Lule [1978] HCB 207,
The purchaser sought a vesting order to transfer land in his name and since the
transfer had not been completed, He proceeded under 0.37 r.3 as a purchaser of
immovable property. It was application once the matter was connected to the
sale and not existence of a contract of sale.
5. Nakabugo V Drake Serunjogi [1981] HCB 58: In
this case the dispute was over existence of a contract of sale. Held:
once the facts are complex and involved a certain amount of oral evidence,
originating summons is not the proper procedure to take, once there is a
serious qn. of law.
6. Originating summons are suitable where the question is one of statute,
construction or document.
7. Chamber summons are usually for interim applications, they don’t
commence pleadings. 0.47 r.1 and r.2 temporary injunctions and interlocutory
orders.
8. Where no mode of commencement is provided, Notice of
Motion is applicable 0.52 r.1 pg 174 CPR.
9. Notice of Motion applies to all open court cases,
notice must be made with summary of exd.
10.
Originating summons they are applied only in certain cases specified in r.1
thereof of 0.37.
ISSUE AND SERVICE OF SUMMONS:
0.5: Issue and Service of
summons, r.9 0.5 service on several defs, r.10 on person or agent, 8. It
must be signed by judge or delegate; r.18 must be displayed in a conspicuous
place.
0.36:
Summary Procedure applicable to H.C and C.M only, suits laid out in r.2
affidavit that there is no defence to the suit r.2 (b), defendant can only
defend suit by leave of court.
If def does not appear, entitled to sum in plaint, leave to
defend mat be conditional suit may be disposed of summarily, decree may be set
aside.
0.29:r2 Service
on corporation, secretary, director, prince, officer, or redg office.
0.30:r3
Service on one of partners or regd office of partnership.
S.20CPA: Once a suit has been
instituted the def. Must be served in the manner prescribed and
shall be prescribed to file a def and answer the claim.
S.21 CPA: Service
where the defendant resides in another district.
S.12CPA: Suits
are to be instituted where the subject matter is situated.
CASES:
1.
E.A plans Ltd V Bickford Smith [1971] ULR
203: Summons are a command of court, had to be signed or officer
properly delegated. Absence of delegation, summons could not have the
force of law.
2.
Kaur V City Auction Mart [1967] EA 108,
originating summons are normally accompanied by plaint.
3.
Re Pritchard [1963] ALLER 873:
Function of summons; they fix the day for appearance and must be served on the
def in person. (See 0.5r8 on who may deliver summons).
4.
Tindisasirwa V Kabale Town Council [1980]
HCB 33: It is general practice in as far as is possible to serve
person himself. The process server must have an affidavit of service.
5.
Opa Pharmacy V Howls SMC George [1972] ULR
113 appearance
under 0.9r.1 connotes physical appearance a def served under o.5 may have a
recognized agent or an advocate dully instructed entering file a def for him
2,000Shs was allowed as instruction fees, during taxation, the defendant was
served, filed a defence but was absent at hearing. Defences filed
included absence or notice. Appearance under 0.9r.I meant simply the
delivery if a writer word and memo of appearance stating that the def would
appear in person Appearance connotes at physical appearance.
6.
Abe Ssenyange V Naks limited [1980] HCB 30 mere
physical appearance does not suffice, party must indicate he is appearing in
the matter.
7.
Okyaya V Kirunda [1979] HCB 46:
appearance of def’s counsel is sufficient legal appearance in the case of
Kyamugabi: [1975] HCB 57: sitting in the wrong court allowed as sufficient
cause for non-carance, this defence where the summons are served on the def.
PARTIES.
Reference to parties who can sue
or be sued. Legally etc.
0.1: Where a
suit is brought to there is a joinder of parties and refers to where 2 or more
persons joined either as pfs or defs, each side are ref to as parties. Names of
all parties must be set out clearly for ascertainment of parties to the suit.
0.1r, 1: joinder of parties; r.2
power of court to order separate trials, r.3 joinder of defendants.
r.4 Judgment for one or more parties,
joinder for parties liable on the same contract.
0.1 r.10 allows amendment of
parties, correction of bona-fide mistakes, but
substitution is impossible if a suit is a nullity:
0.32r.1 allows minors to sue
through next friend with his written authority.
0.32r.3: Appointment of
guardians and litem.
0.30r.1: partners can be sued in
the name of the firm.
0.1r9: No suit shall be defeated
for non joinder.
Sabiiti
Musoke [1978] HCB 189: 0.29 r.2 is not mandatory, it is merely
directing, failure to comply does not mean automatic dismissal of the suit.
Jingo
[1974] HCB 294 applicant lied about his age, that he was 20 years
whereas not application was struck off with costs.
Khiddu
Musisi V Namulemye [1965] majority age is 21 years.
0.32r15 rules applicable to minors are also applicable to persons of
unsound mind.
JOINDER
AND MIS JOINDER OF PARTIES:
Barclays Bank V Patel [1959] EA
214, 0.1r331r.3 only allows persons to be joined in that manner only
where persons are engaged in an act or series or acts/transactions. Here
the acts complained if comprised of different causes of actions and
transactions. Obj sustained.
Musibwa Kyazze V Eunice
Busingye S.C Appeal No. 3 of 1990: No.
suit should be dismissed for non-joinder or misjoinder. The rights of
relief must come out of the same transaction.
Bank of India V Shah:
Bank used on defs severally as guarantors on overdrafts on
monies lent to company 1st def objected that there was
misjoinder. Under 0.1r3 each guarantee formed a separate cause of action,
and 0.1 r.3 was inapplicable.
Katangaza V A.G [1980]
HCB 114: suit for injury brought by teacher in the
course of employment, Wrong party sued since the teacher was under Local
Administration and Government and L.A were separate bodies. Suit had been
brought Vs wrong defendant.
Kanani V Desai (1954) ULR
125: Where two parties occupy separate parts of the same
building, and each is told to quiet the premises, they cannot be joined as
defendants
SUBSTITUTION OF PARTIES.
Sempa Mbabaali V Kiiza [1985]
HCB 46: The right to sue defs severally and jointly was because a
common question would arise if separate suits were brought against the defs.
Pathak V Mckwe: Where
orig. pf was dead at the time of filling of suit and subset made by Mgt. On
appeal, 0.1 r.10 (2) was inapplicable; the orig. suit was a nullity.
Benjamin Ssajjabi V Timber
Manufacturing Limited [1978] HCB 207 10 (2) inapplicable where
the company had no legal existence. Company sued as ltd liable.Co.yet it
was unincorporated.
INTERVENTION BY PERSONS
NOT PARTY TO A SUIT
1.
Amicus Curiac: this
involves a person intervening and voluntarily giving on a matter of law or a
matter in which a judge may be mistaken or doubtful:
2.
Dritoo V West Nile District Administration
[1969] EA 324: pf had been unlawfully arrested and assaulted
by local police. In the proceedings the AG was called to stand in as A.C.
3.
Kayondo and Kakungulu V Polycarp Kakooza and
others H.C.C.S. 35/72: A.G was called in as A.C
4.
Oriental Construction Company Court rejected
appl. By counsel to appear in pleadings a.c as it is court to invite.
REPRESENTATIVE SUITS.
0.1 r8: allows one person to sue or defend on behalf of all in the same
interest. There is requirement for notice to all other parties.
Johnson
V Mosts [1969] EA 654: Pf was a minor who sued thru a next friend for
injuries sustained while in an unincorporated persons clubs. He sought
leave of the court to proceed Vs one of the members of the club.
Makula
International V Cardinal Nsubuga and Anor H.C.C.S: There was a breach
of contract between the pf and the def Catholic Centenary Assa. To print
T-shirts in consideration for 10% an application was made to bring a rep suit
Vs the Cardinal and Anor was filed before hearing whether the plaint could
stand b4 rep order had been made. 0.1. R8 and 9 can’t be waived, the suit
was premature.
THIRD PARTY PROCEEDINGS:
0.1R.14-21
See 0.1r.14, notice to third
party, and r.15 effect of default of appearance.
General scope deals with cases
applying all disputes arising out of trans. Btn a pf and df and btn a df and
third party which can be tried in the same action. Where the pf wishes to
move against third party personally he has to file for a joinder and will need
to amend the plaint.
1.
Barclays Bank V Holmes [1923] 1 KB 221: The
obj of 3rd party pleadings is to make the 3rd party
bound by the decision btn the pf and def. And to prevent multiplicity of
actions.
2.
East Mengo Growers Coop Union V N.I.C [1985]
HCB 94: K of insurance of m/v. Failure to appear once third party notice is
given entitled the pf to judgment. 0.1r.16. consent judgment given on a Sunday
was false, and refused to satisfy the pfs claim. And applied for third
party notice against the counsel for the pf who was conspicuously absent at the
hearing. Counsel for the def prayed court for judgment as against the 3rd party.
Since the third party had ignored the summons, there was proper cause for
judgment to be entered against him. The third party had no indemnify the
def against costs incurred.
3.
Sango Bay V Dresdner Bank [1971] ULR
72:01r14-18 limit 3rd party proceedings to cases where
the def claims to be entitled to a remedy of indemnity &
contribution. The s/matter must
INTERPLEADER PROCEEDINGS
Proceedings relate to pty or
money in the hands of a 3rd party who isn’t owner thereof and
doesn’t know the owner, yet he wants to protect himself as against two parties
commencement is by notice of motion. S.60 of CPA.
1. 0.34r.1: practice of
institution of i/p; where no suit is pending by an originating summons where
suit is pending by notice of motion.
2. 0.34r.2: the applicant
must depone by affidavit that he claims no in the
subject
matter; there is no collusion with one of the parties and the appl. is willing
to transfer the s/m into ct.
3.
0.34r.3: once appl. is made by def. All proceedings are
stayed.
4.
0.34r.6: appl. may be entitled to costs.
CAUSES ACTION:
There must be a cause of action.
1.
o.1r4: allows a pf more than one relief.
2.
Sempa V Kiiza [1953] HCB 16 the
plaint must show that the enjoyed a right and that the right has been violated
and that the def is liable. Anticipatory breach is not actionable.
3.
0.2 r.4 provides for joinders of causes of
action.
4.
Barclays Bank V Patel [1959] EA 214:
Different causes of action accrue on different dates and against different
defs. The circumstances in which the liability arose on the guarantees
was different.
5.
Karmali V Desai [1953]:
Landlord sought to eject 2 tenants from different actions of the
property. The tenants were separate and distinct. Each tenant’s
circumstance and distinct cause of action. Court ordered separate trials.
6.
Mubiru V A.G [1971] ULR 226: The
Law Reform Misc Prey Act proving action had been brought in 8-12 months.
The pf sought an amendment the effect of which was to bring a new cause of
action Vs new defs. Amendment could not be used to stretch the bring a
new cause of action barred by the limitation imposed by the statute.
7.
Nkalubo V Kibirige [1973] EA 102
8.
0.6 r.6 where a w.s.d does not plead that the
plaint disclose no cause of action it cannot be pleaded at the trial, Opika-Opoka
V Munno Newspaper [1990]
9.
0.6 r.5 failure to disclose cause is remedied by
application to struck out plaint.
Darcy
Jones [1959]
PLEADINGS
PLEADINGS AND AMENDMENT OF
PLEADINGS’ ISSUES
S. 2 CPA: any petition or
summons and also include any statements in writing claim or demand of any
plaintiff or defence or counter-claim of the def. trial is ltd to issues in the
plaint.
0.5. r.2 plaint is served
together with summons.
0.8. r. 1. the def must file
defence w.s.d which is a formal document in which the def denies or admits the
claim.
0.9. r.4. If no appearance is
entered, judgment may be entered in a default.
The pf is allowed to apply for
judgment in default.
0.9r.20 provides for proceedings
exparte
PLAINT
That the pff’s rights have been
violated
That it is the def responsible
for the
violation
authority Sempa
That the pff has sustained
hydrias as a result of the violations Kiiza, Auto
Garage
That he is entitled to
damages/compensation
V Motokov
1. S. 19
of the CPA: every suit shall be instituted in the manner provided in the rules
2. 0.4.
r.1 every suit shall be instituted by presenting a plaint to court.
3. Requirements
of a plaint are laid out in 0.7.r.1
4. Mutongole
V Nyanza Textiles Limited [1971] ULR 131: counsel for the def in the middle
of evidence by a witness informed court that he had just discovered that the
plaint did not show any averment as to the jurisdiction of court, on appeal;
this was a useless surphange a statement that court had jurisdiction. The
statement did not bestow jurisdiction. It had no magical parties.
The facts disclosed that if had jurisdiction.
5. Lake
Motors V Overseas Motor Transport [1959] EA 603, if a plaint shows the
pf enjoyed a right, and the right has been violated the def is liable, there is
a cause of action, if any of these essentials are missing, there is no cause of
action.
6. Clementina
Nyadoi V East African Railways [1974] HCB 122: The def in a s.d
contended that the plaint did not disclose a cause of action for failing to
disclose that the defendant’s summons were acting in the scope o
authority.
7. Mubiru
V Byansiba: a plaint is struck out if it omits to show that the defendant
was acting in the course of his employment.
8. Eriabu
Lukyamuzi V House and Tenant Agencies [1983] HCB 74. Technicalities
have a limit court cannot be delivered with niggling, meritless and technical points.
9. The
fundamental rule of pleadings is that is that they will be nullified if it were
held that a necessary fact not pleaded must be implied.
10. Sullivan V Ali
Mohammed Osman: if a plaint shows that a pf enjoyed a right and that has
been violated, and that the def is liable, a cause of action is shown or
disclosed and any defect or omission may be put right by amendment.
11. Grounds for
rejection of plaint: 0.7 r.11
12. Documents must be
filed with the plaint 0.7.r.8
13. Immovable property
must be described 0.7.r.3
14. Apollo Hotels
V Takene Home Limited; where more than one relief is claimed, it must be
stated.
PURPOSE:
1.
Makula International V Nsubuga: ct has
no inherent or residual powers to extend time provided by statute.
2.
Epaineto Mubiru V Uganda Commercial Bank
[1971] ULR 144: the purpose of pleadings is to let the other party know the
outline of the adversary’s case to prepare a defence. Each of the
alternate pleadings must show this.
3.
Bisuti V Busoga District Administration
[1971] ULR 179
4.
Mbarara Coffee Curing Works V Grind lays
Bank
5.
Talikuta V Nakendo [1979] HCB: it is
a statutory rule of pleadings that is bound by his pleadings. But if
particulars are given in undue details and what it is proved varies from them
in ways that are material, it remains the duty of court to see that justice is
done.
6.
Gandy V Cespar Air Charters [1956] as
a gen. rule, relief not founded on pld, cannot be given.
7.
Patel V Fleet Transport Co. [1960] EA 1025: an
incorrect description of a particular fact should not be fatal where the
particulars of the claim have been given with reasonable precision.
8.
H.J Stanley and Sons V Alibhat:
allegations at the hearing must not be inconsistent with the pleadings. Every thing
must be pleaded in the plaint.
9.
New Era Stores V Occan Trading Company where
pfs cause of action or title to sue depends on a statute; you must plead all
facts necessary to bring you within protection of the statute.
10. Naesinh
V Valji Shukla there is not duty to anticipate a defence.
MATERIAL FACTS:
0.6 r.1 on
material facts, every pleading must contain only a stmt in concise
form of the material facts in a given
format. They must allege with certainty, proof of allegation, pleading should
not be by way of avoidance, thru partial acceptance.
These
are facts which in the opinion of the part give a right or impose on a def a
duty.
Material facts are those necessary for the founding of an action.
Sempeebwa V A.G
[1988] materiality depends on the circumstances of each case.
0.6. r.5. any new fact must be
specially pleaded
0.6. r.6 parties are bound to
their previous pleadings except in cases of petitions or appls.
Talituuka
V Nakendo: It is a statutory rule of pleadings that parties are bound by
their pleadings.
PARTICULARS
Particulars must be given ie
fraud, misrepresentation, undue influence etc.
1. Patel
V Khalsa Engineering Works [1960]: a plaint which does not ss particulars
is defective.
2. 0.6.
r.2: where a party relies on misrep. Etc in which particulars are required,
such particulars with dates shall be stated in the pleadings.
3. Okellokello
V UNEB: C.A N0. 12 of 1987: 06 r.2 is mandatory; dates must be given and
must always be under a definite head entitled particulars of fraud.
4. Kampala
Bottlers V Damanico C.A 22/92 where fraud is pleaded, particulars or a
fraud must b given. Fraud must be attributed be it directly or by
necessary implication, there must be an act.
5. Lubega
V Barclays Bank [1992] particulars of fraud must be pleaded as
a legal requirement failure to do so is not a mere irregularity curable by
adducing evidence.
6. David
Acar V Acar Aliro [1982] HCB 60: a party who has not pleaded fraud
or led evidence on it in a lower court cannot plead it on appeal.
7. 0.7
r.11 plaints based on negligence must specially set out the alleged negligence.
8. 0.6
r.3: where def pleads that the plaint is bad in law, particulars will be
ordered.
9. Rasulbhai
V Shaukatali Chaudrey [1963]: pf is 0.6 r.3 (ibid) is invoked are entitled
to apply for another and better particulars on in formation in the defence.
10. o.6 r.5:
11. Shah V Patel
[1961] where a def is liable on a bill or note, it is for him to
aver facts which disentitle the pf to sue.
12. Central Masaka
Coffee Co. V Masaka Farmers and Production [1991] party replying on a
point of law must plead it, illegality brought to attention to court
overrides all questions of pleadings including admissions.
VALUE OF MONEY:
1. 0.7.
r.2. where value of money is involved, it must be stated
2. 0.7.
r.3. immovable property must be disclosed
3. 0.7.
r.5. Plaint has to show that the def is or claims to be interested in the
s/matter.
4. 0.7.
r.7. Relief claimed must be stated.
5. 0.7.
r.11. a plaint may be rejected for failing to disclose a cause of action
6. Mikidadi
Kaweesa V A.G. [1973] ULR 107: pf sued for general damage on being
shot. He did not indicate whether he had been accidentally shot or
not. The plaint did not disclose of action.
WRITTEN STATEMENT OF DEFENCE:
0.8
1. Kanji
David and Damdan [1934] EACA
2. Sengendo
V A.G. [1971] HCB 304
3. Talikuta
V Nakendo [1979] HCB 276
4. Nampera
Trading Company V Semwanje
5. Hasham
Suleiman V Sayani [1963] 0.6 r.12 where def in a suit for defamation
in w.s.d plead privilege, there is no need to plead express malice in reply.
6. Byabashaija
V A.G [1992] amended w.s.d filed 6 months late without either court’s
leave of permission or consent of other party is inadmissible.
7. 0.8
r.2 defence may be filed by way of counterclaim.
8. 0.8
r.8 where court refuses to hear counterclaim, it must become a fresh suit under
r. 12.
COUNTERCLAIM
It is a distinctive
action and regardless of whether a pf’s action or claim is discontinued.
A set-off is not a separate
action. It is part of the same action and its fate is determined by the
fate of the main action.
A counter claim must have a
cause of action and must specify relief sought from court. There may be
new defendants in the counter-claim.
1. See 0.8.
2. 0.8. r.8 where a person not party to the suit is
included in the counterclaim, he shall be summoned to appear.
3. 0.8. r. 10, this
appearance is as though he is party to the suit.
4. Karshe V UTC [1975] HCB mere omission of a counterclaim
does not stop a defendant from bringing a fresh action against the
plaintiff. Pf had judgment awarded against him in a suit for
negligence. Brought a fresh suit, claiming 50% of the damage award.
Prelim objection was that this issue had not been raised in the previous
suit. It was not compulsory to counterclaim the pf was not precluded from
brining a fresh suit.
5.
Nampeera Trading Company V Serwanga [1973] ULR 169: procedure for
setting up a counterclaim if it is to be enforceable title, parties etc.
6. 0.8 r.11 reply to
counter-claim must be made within 15 years.
AMENDMENTS
1. Refers
to correction of errors including curing of defects in pleadings. Amendments
may be done with leave of court once leave is applied for, costs must be paid
under 0.6 r.19 and 20.
2. Amendments
may also be done within 21 days of the date mentioned in the summons w.s.d may
be amended within 14 days from its filing, where w.s.d includes a counter-claim
amendment must be made within 28 days.
3. 0.6.
r.23 allows a party to reply to an amendment.
4. Amendment
must not amount to departure from pleadings.
5. Kasolo
V Nile Bus Service: substitution of injuries which were in question
amounted to a serious departure from pleadings.
6. 0.6
r.18 amendment must be before hearing.
7. Nziraine
V Lukwango: suit was brought within limitation period but amendment was
sought 4 years after the incident complained if. Proposed amendment to
sue on behalf of estate and beneficiaries instead of personal capacity amounted
to a fresh cause of action. UCB V Painetto Mubiru: the law does not allow
statutes of limitation to be circumvented.
8. 0.6.
r.20 the opposite party may apply to court within 15 days to disallow
amendment.
9. 0.6.
r.23 amendment must be served on the opposite party in the same manner of
summons.
10. Eastern Bakery
V Castellino: allowing amendments is the discretion unless the judge
proceeds along the same principal. Once sought before hearing they must
be allowed unless they cause injustice the other side.
11. General Mgr
E.A.R.H V Thierstein [1968] amendment may be allowed at a very late
stage where it is necessited solely by a drafting error and there is no element
of surprise.
12. Lakhani V
Bhojani [1950]: 0.6. r.17 appeals against the exercise of its
discretion by the low court will only be entertained where they are based on
some other embarrassment or other injustice.
13. Clara on
pleadings: Amendments however negligent or careless should be allowed, there is
no injustice unless it can’t be compensated by costs, but it must not bring a
wholly new cause of action.
14. African
Overseas Trading Company V Acharya [1963] application for leave to
amend can’t be allowed where it introduced a new cause of action which is
inconsistent with pleading. 0.6 r.18.
15. D.D Bawa V
Singh [1961] an oral application to amend during the trial may be
allowed if no injustice arises to the other party.
16. Sendegeya V
Masaka Cooperative Union [1992]: appl. to amend defence late may be
allowed where it facilitates resolution of issues at hand.
TRIAL PROCESS:
1. 0.50 r.1: on powers of
the Registrar to act as court.
2. 0.50 r.3: powers to take
interlocutory applications by the Registrar.
3. 0.50 r.2: in uncontested
cases, judgment may be entered by the Registrar.
4. 0.50 r.4: power to order
attachment and sale of property etc.
5. 0.50 r.6: for the
purposes of 1-4 the registrar is deemed to be an open court where he exceeds
his powers, decisions are a nullity.
6. Edward Karoli V
Mubiru: reg exceeded powers by entering a judgment in default of
appearance in a manner not authorized by the rules; it could not stand and was
a nullity.
TRIAL WITHOUT HEARING:
not to waste creditors and court’s time on clear claims.
1. 0.9.
r.4 instances are in default to appearance, interlocutory judgments and summary
suits.
2. 0.36
provided for summary suits: applicable only in the High Court, G 1 and CM.
3. Nakabago
Cooperation Society V Nshenaga: CPR providing for summary judgments are
inapplicable in G II and G111 courts whose rules are set out in the schedule to
the MCA.
4. A
summary suit is taken out where the pfs are certain the def has no defence.
5. 0.36
r.2 sets out the ambit of summary suits.
6. Cooperative
Bank V Kasiko: the amount of money claimed does not determine whether a
suit should be summary or not once conditions of 0.33 are fulfilled.
FURTHER
AND BETTER PARTICULARS:
1. 0.6
r.3; some particulars are required by statute under the Law Reform and Misc
Proy Act.
2. They
depend on each particulars case.
3. Esso
Petroleum V Southpart: pleadings may be unnecessary or scandalous or may
tend to prejudice, embarrass or delay the fair of the accused.
4. Joshi
V Uganda Sugar Factory [1968] where defs attitude is purely defensive,
you can’t compel him o make positive assertions. Particulars of when
accident occurred neither were nor required to give effect to a complete denial
and failure to furnish was not a surprise.
5. Abdullah
Semanji V Jivanjee [1968] a pf not in possession of f.b particulars
may be ordered to furnish the best particulars he can.
6. Rateliffe
V Evans to insist upon less than f.b would be to relax old and
intelligible principles and to insist on all would be vainest pedantry.
7. Kapiru
V UTC: part (s) will only be made for facts alleged in pleading and not denied.
No particulars should be made for immaterial allegations.
8. Uganda
Credit and Saving Bank V Kirya [1960] failure to furnish f.b within a
fixed time will lead to dismissal of suit.
9. Mubiru
V UCB: distinction between f.b and application to know what kind of
evidence will be adduced.
EXPARTE
PROCEEDINGS:
1. 0.9.
r.3: where a def fails to appear a suit may proceed as if the party received
summons.
2. Kanji
Naran V Veliji Ramji [1954] filing of an affidavit of service is
necessary. Under 0.9 r.12 where it appears there was no proper service ct
must set aside judgment.
3. Korutaro
V Mukaira [1975] court cannot pass judgment unless proc is complied
with.
4. Kitumba
V Karibwire [1981] one hearing notice cannot be relied onto proceed
exparte.
5. 0.9
r.4: Eskeen V Kutosi: it is unnecessary for the pf. To formally
prove his case.
6. Sekitto
V Nsambu [1987]: judgment cannot be entered exparte on an unliquidated
demand, the suit should be set down for assessment of damages under 0.6. r.6.
7. Pan
African Insurance Co. V Uganda Airlines [1985] 0.6. r.6 entitles the
pf to judgment in default of appearance or defence.
8. Karoli
Mubiru V Kayiwa Edward [1979] judgment of court without jurisdiction
is a nullity Ex-parte judgment does not cease to apply where a decree has been
extracted.
9. Didi
V Namakajjo [1989] failure to write a w.s.d raises a presumption
submission of claim in plaint and failure to appear and file w.s.d means no entitlement
to be heard.
10. 0.29 an ex-parte
judgement may be withdrawn, failure of officer of company to appear must not be
used to make a company suffer for a c.s a junior officer; Serwadda V
Popular Front etc Ltd. More License is given to corporate bodies, and
public bodies the same private bodies. Kiwanuka V Mukasa.
11. Fisher,
Simmons & Rodway (EA) V Visram: Appearance may be out of one.
12. Premji Patel V
Ranji Jethabai [1947] suit Vs Joint defs. Case can’t proceed
ex-parte as one who has not filed w.s.d until case vs. The other has been
determined.
13. Total Oil
products V Nauto Limited [1968]: in case of joint liability, judgment Vs
one or more destroys action against the others under 0.9. r.8A.
14. Zirabamuzaale
V Corret [1962] a def who has failed to file w.s.d is not entitled to
notice of hearing.
15. Patel V
Othwele [1955]: defence filled out of time cannot be ignored.
16. Claver-Hume V
British Tutorial College [1975]: failure to file opernate as an
admission of all allegations except as to damages.
17. Tindarwesire V
Kabale Town Council [1980] once party has entered appearance, the suit
should be set down for hearing.
18. Sebei District
Administration V Gasyali [1968] even if judgment has been approbated
by the applicant, the court still has discretion to set it aside.
19. Lebel V
Lutwana [1986] sufficient cause should be shown in application to set
aside ex-parte.
20. Nsubuga V
Kamya [1985]; relevant factors are:
(1) Reasonable
explanation as to why judgment was entered vs def.
11) Prima-facie reasonable
defence
111) defence is disclosed in
affidavit.
21. Kambale V Uganda
Clays Ltd [1978] ex-parte will be set aside where pf served before
plaint was filed and def did not file defence.
22. Din Mohammed V
Lalji Visram & Co. [1979] withdraw of advocates does not mean
subseq. Proceedings are ex-parte.
23. Zikampata
V Uganda Libyan Trading Co. [1979] def who does not file def is not
entitled to be heard, and can only challenge correctness of ex-parte judgment
in application to set aside.
24. Waljee V Kaggwa
[1958] illiteracy in English no ground for non-appeara
WITHDRAWAL, DISCONTINUANCE AND
ADJUSTMENT OF SUITS:
1. 0.25r.1
pf withdraws by notice and pays costs.
2. Mulondo
V Semakula [1982]: a pf may withdraw suit at any time before defence
is filled and even after defence is filed but no other steps are taken in the
suit without leave of court.
3. 0.25r.
3 withdrawal of counter-claim
4. 0.25r.
2 withdrawal by consent of parties.
5. Phillip
Matsanga V Buganda Saw Mills: pf sought to withdraw after giving
evidence. The object of the rule is not to enable the pf after satisfying
to get a fresh opportunity to commence new proceedings to the prejudice of the
other party.
6. 0.25
r.6: the rules governing withdrawal don’t relate to consent judgment.
THE TRIAL PROCESS PROSECUTION OF
SUITS AND ADJOURNMENTS.
1. Once
pleadings are closed, the matter is set down for trial, and the pf takes out a
hearing notice.
2. 0.17r.1
adjournment can only be granted with sufficient cause Buscom System V
Kirya.
3. Rattan
Singh V Singh [1952] refusal to grant adjournment can be interfered
where refusal amounts to a denial of justice.
4. Abdala
Habib V Harban Singh [1960] pf must be present or have explained
absence.
5. Salongo
V Nantegolola: adj. is usu. To cater for new matters catching the
other party unaware.
6. Kayongo
V Kampala Municipal Council [1963]: defence counsel’s consent is not
sufficient cause for adjournment.
7. Bawmann
V Serwanga [1975] telephone call cannot be used to make application,
counsel must hold brief for a plaint.
8. Commissioner
General of Customs V Home Garments: appellant asked for adjournment to call
for witnesses from Kenya which was refused. This was improper use of
discretion.
9. 0.717
r.5 time limit between file of defence and actual hearing. 8 and 10 weeks
respectively.
10. Nantaba
Musoke V Musoke application to dismiss suit under 0.17 r.5,pfs counsel
had made no effort to fix suit for hearing, the suit’s pendance negat. Affected
the defs rights. Suit dismissed.
11. Cronta V
Afro-Trade Promoters [1978]: court will consider whether the pf or his
advocates was to blame for the delay.
12. Lalji V
Hassanali Devji [1969] you cannot dismiss a suit down for hearing.
13. 0.17 r.6 allows
court to dismiss suit for inordinate delay.
14. Victory
Construction Co. V Duggal [1962] this gives court chance to
disencumber itself of records where parties have lost interest.
15. Rawal V
Mombasa Hardware [1968] does not preclude remedy for re-institution of
suit.
16. Nyiramakwena V
Katariko: it is the duty of the pf to bring suit to early trial, it is
impossible to have a fair trial after a long time.
INJUNCTION:
1. They
deal with restraint of one party breaching a right of another. The
purpose of a T.1 is to maintain a status quo until the issues between the
parties are resolved.
2. S.40
of the Judicature Statue, 1996 lays down the powers of acts to grant is.
3. S. 15
of the Proceedings against Government Act, an I cannot issue against
government. S.15 (1) (a) court can only make an order declaratory of
rights of parties.
4. Attorney
General V Silver Springs: The import of ‘person’ in s.40 (bid) and 0.41
does not include government, govt machinery should not be brought to a halt or
an embarrassment.
5. Christopher
Sebuliba V A.G a dist. Can be made between officers of govt and A.G
but an injunction cannot issue against officers of government.
6. 0.41
r.3 amended by S.1 217/94: before granting an injunction ct shall direct that
notice be given to a third party.
7. Noor
Mohammed Janmohammed V Kassamati Virji: 0.33 r.1 save in very exceptional
cases an injunction cannot be granted unless there is a likelihood of injury
which is substantial and could not be adequately remedied.
8. Shah
V Devji [1965] injunction to restrain exercise by m/gee of power of
sale is such an inst.
9. S.41
only the High Court can grant injunction.
10. Babumba V
Bunju [1988-90], Patel V Lukwago [1984], UMSCV Sheik Mulumba an injunction
cannot be granted whose effect is to dispose of the whole suit. The head
suit relief tes.
11. Nakaana &
Co. V DAPCB [1987]: an application for an injunction is incompetent
where a suit is pending in the lower court.
12. Re Kikome Sa
Millers [1977] where property is in danger of being warned an I can issue.
13. In Re Theresa
Kaddu [1980]: there must be a suit pending between the parties.
14. 0.47 r.2 ct will
grant an injunction on such terms as it deems fit. An injunction must be
obeyed while it lasts.
15. Madhvani V
Madhvani [1989] an injunction should not be used as an impartment of
oppression where there is a reasonable alternative.
16. Application is
made by chamber summons for those under r. 1 and r.2 the rest are by
notice of motion under r. 9.
17. Afro-Ugandan
Bros V Mpologoma [1987]: a temporary injunction will be discharged
where the purpose for which it was granted has ceased to exist.
18. Robert Kavuma
V Hotel International [1990]: there must be proof of sufficient cause.
19. Giella V
Casman Brown an inj. Is a discretionary remedy.
20. Kiyimba Kaggwa
V Katende an injunction is granted where the applt will suffer injury
not easily recoverable by costs.
21. E.A Industries
V Tripods: The test is a balance of convenience.
22. Eva Mulira V
Henry Kalamuzi: there must be a status quo to protect.
SECURITY
FOR COSTS:
1. This
is a defendant’s remedy: to protect him against loss, dissipation before
conclusion of suit.
2. 0.26
r.1 application may be made by any of the defendants.
3. Karim
Elahi V Ahmed Mohammed [1929-30] inability of the pf to pay his debts
is not sufficient reason to order security for costs.
4. Heger
V Car and General Equipment Co. [1967]: absence of the pf from the
proceedings can lead ct to order for security for costs.
5. Unindrom
V Kawesi & Co. [1992]: Foreign co without local property or
investments can be ordered to pay security for costs.
6. S.404
CA: company may be ordered to deposit security for costs.
7. Considerations
for making an order for security for costs.
Namboro Vs Kaala
· Whether
the applicant is being put to undue expense by defending frivolous suit.
· Whether
the applicant has a good defence to the suit
· Whether
the applicant is likely to succeed.
· Only
after these have been considered will the applicant’s poverty be
considered. If this was not the case, poor litigants would have not
chance of enforcing their rights.
8. G.M,
Combined V A.K Detergents: security for costs is a discretionary remedy and
it is meant to prevent abuse of process by impecunious persons and to prevent
putting pressure on the pre
9. UCB
V Multi Constructors: defs poverty had been caused by the wrongful act
of the pf. And court would not order security of costs, def’s pty had
been grossly undervalued.
ATTACHMENT AND ARREST:
1. This
is a plaintiff’s remedy.
2. 0.40
r.1 may be invoked where the def intends to delay the pf or obstruct or delay
execution of a decree against him and depones by affidavit.
3. 0.40
r.2 the defendant may order to furnish security for appearance.
4. 0.40
r.4 where def fails to furnish the same, he may be committed to evil prison.
5. 0.40
r.5 furnishing security for production of property.
6. 0.40
r.10 attachment before judgment does not prejudice rights of persons existing
prior to attachment.
7. 0.40
r.12 application under the Order shall be made by summons in chambers.
8. 0.40
r.3 sureties may apply to court to be discharged from obligations ensuring
there from.
9. Abby
Mugimu V Mukasa Bossa: def non-national. Even if he were evidence had to be
furnished that the respondent intended to flee the country.
MAREEVA
INJUNCTIONS:
1. They
are involved when the property intended to be attached belongs to the def or
respondent or where the third party merely holding custody is ordered not to
permit the def to take the pty from his custody.
2. It has
the effect of freezing the def’s assets until the suit is determined.
PAYMENT
AND TENDER:
1. It is
an act of the def depositing amounts of money he admits to be due wills proper
of court.
2. 0.27
r.1 def may pay money into court in satisfaction of liability.
3. Tender
is a plea that he has always been ready to pay as dd before commencement.
4. Anandas
V Corbin: def paid into ct special damages pleaded and Shs 10,000 and
pleaded for un liquidated damages. This payment must be mentioned in the
defence the claim or cause of action.
5. 0.27
r.3 amount tendered must be brought before court.
6. 0.27
r.6 tender does not preclude the pf from proceeding with the action.
7. 0.27
r.7 once one the pf accepts the money he must give notice to the defendant.
8. Harrison
V Liverpool Corporation [1943] 2 ALLER 45: once sum is tendered and
liability admitted, ct is tied and cannot give judgment for a lesser sum than
has been paid.
OPEN
OFFERS:
1. Def
appreciates the pf is right and that his rights have been violated and instead
of going through litigation makes an offer of money and serves the pf.
Parties may settle before going to trial.
INTERROGATORIES:
1. 0.10
r.1 pf or def with the leave of court may deliver them to the other party.
2. 0.10
r. (b) the interrogatories must be dealing with relevant matters and shall not
be admissible on circumstantial evidence of witness.
3. Sebastian
Gisuza V Charles Ferao Head of interrogatories. Stating the purpose was
sufficient compliance with the rules: They did not specify which matters
were to be unanswered.
4. Aggrawal
V Official Receiver: the general principal ff is to allow such
interrogatories as may be necessary either for disposing fairly or more
expeditiously of the case or for the purpose of costs.
DISCOVERY:
1. 0.10
r.12: application for discovery on oath of documents in the other party’s
possession relating to any matter in question therein.
2. Ct may
refuse discovery it is not necessary for disposal of the suit. Once a
fact is known to only one party, the other party may apply for discovery.
3. Dresdner
Bank V Sango Bay def claimed the pf had obtained the
documents mala fide whose particulars could only be given after discovery.
ADMISSIONS:
1. 0.13
r.1 notice of admission.
2. 0.13
r.6 application for judgment on basis of admission.
3. in Re
Nsubuga: civil pleadings are admissible against the maker as confessions
are in criminal cases and are admissible could be given after discovery.
COMPROMISE:
1. 0.25
r.6 court may order a decree after lawful agreement or compromise.
2. S.69,
no appeal shall lie to the higher court where a consent decree has been
obtained.
3. Ali
Hassan: court cannot interfere with consent decree.
CONTROL OF
PROCEEDINGS:
1. Joinder
of persons may be done by court on application of the parties 0.1
2. Kassam
V Singh: this is possible where they arise out of the transaction.
STAY OF PROCEEDINGS:
1. S.6
CPA: stay may be ordered where the matter in issue arose in a previously
instituted suit by the same persons or under whom they claim.
2. S.97
allows court to stay proceedings to prevent abuse of court process a party may
apply for consolidation.
TEST SUITS:
1. 0.1
r.1 where 2 or more persons have instituted suits against the defs and such
persons under 0.1 r.1 can be joined as defs in one suit upon the application of
the parties, test suits and decisions there from bring the others where they
succeed and if it is struck out on technicality, it can be revived under 0.2
r.1.
2. 0.2
r.7 court has power to order separate trials.
JUDGEMENTS:
1. S.25
of the CPA after a case has been heard, judgment will be pronounced.
2. S.85
(2) (f) court can give judgment in some special cases under the Act.
3. Ex-parte
Judgments: the other party excludes himself from judgment at the hearing of the
suit by failing to enter appearance under 0.9 r.4 in a suit upon a liquidated
demand, or a suit for mesne profits under 0.9 r.6.
4. Sengendo
V A.G. At the time of filling the last defence the pf may apply for
setting down the suit for hearing ex-parte 0.9 r.8 (a).
5. Ex-parte
judgments may be set aside under application by notice of motion under 0.9 r.8
(1).
6. Ct may
also proceed ex-parte under 0.9 r.17 (1) (a) where it is satisfied that the
summons or notice of hearing was duly served.
7. Nyombi
V Nalongo: A decree passed ex-parte may be set aside under 0.9 r.24 if the
defs is prevented by sufficient reason.
8. Wilson
Sekitto V Nsambu: not all suits qualify for setting aside under 0.9 r.4 and
6.
9. Ex-parte
final judgment can only be in case of a liquidated demand.
10. 0.21 r.1: judgment is
delivered in open court.
11. 0.21 r.3 (3) Jud dement
once entered can only be altered in the manner provided for under as 102 of the
Act.
12. S.102 CPA: corrections,
amendments to cater for clerical, arithmetical mistakes, ct has inherent
jurisdiction to recall its judgment under the slip rule.
13. Libyan Arab Bank V
Adam ct can recall judgment but cannot sit in its own judgment.
14. Pamiga V Jivray:
the slip rule will only be applied if the court is satisfied that it will give
effect to the intention of court at the time when judgment was given or in a
case where a matter was overlooked.
15. S.2:CPA a decree is a
formal expression of adjudication, it may be preliminary or final.
16. An order is not a
decree and does not include a rule nisi.
17. 0.21 r.6: a decree
contains relief and other determination of the suit.
18. Asadi Wokedi V Olaa:
the general duty of extracting a decree is imposed on the successful party.
COSTS.
1. S.27: costs
of and incident to the suit shall be in discretion of the court which shall
have full power to determine by whom and by whom out of what party and to what
extent costs are to be paid.
2. They are
governed by Advocates Rules and Taxation of costs Rules (1982)
3. Benjamin
Sajjabbi V Uganda Timber Manufacturers: the party suing must have a legal
existence and application for costs cannot be made to a non-existent person.
4. Ernest
Kato V Tom Aliwala: costs can exceed the pecuniary jurisdiction of the
court, once they are incurred during the course of litigation.
5. Evaristo
Nyanzi V Zaverio: notice of taxation must be given to the defendant.
Taxation proceedings are appealable.
6. Makula
International V Cardinal Nsubuga: Under s.27 (2) costs are discretionary in
terms of both regard and extent.
7. UDB V
Muggaga Construction: defs admitted liability of lesser amount but had not
taken any steps to pay into court amount owing, there was no reason to deny
costs to the plaintiff.
8. UTC V
Outa: failure to pay costs alone is not a good reason to deny the
other party costs.
9. Rwantale
V Rwabushonga: a party can only be denied costs if it is shown that his
conduct prior and during the proceedings has led to unnecessary litigation.
EXECUTION
Parties are bound by judgment. Judgment of court cannot be in
vain. A party who refuses to pay court costs can be compelled by court to
do so.
1. S.28:
provisions applicable to exec of decrees are applicable to exec of orders.
2. S.30:
exec may be extended outside court’s jurisdiction if the party moves there.
3. S.29:
a decree is only applicable to parties to the suit
4. Rajamtex
V Nyanza Textiles: execution cannot issue against a non-party to the suit
(UDC).
5. Semakula
V Musoke: s.29 is only applicable to parties to the suit.
6. S.40:
allows execution against legal representatives property of the deceased ay be
attached or sold by way of execution.
7. S.36:
execution may be limited in certain cases.
8. S.37:
transferee of a decree holds the same subject to equities.
MODE
OF EXECUTION:
1. S.39: power
of the court to enforce execution
- Delivery
of the party decreed
- Attachment
and sale or sale without attachment
- Arrest
and detention of any person
- Appointment
of a receiver.
2. Henry
Kato V Kantinti: whether a warrant of arrest can issue in respect of
delivery of title deeds: execution may be carried out by arrest and detention
of, there is no restriction on arrest.
3. Czeezrenisiki
V Markus: execution by arrest is one of the ordinary means of execution.
4. Shah
Jivray Hira V Gohil: an attachment order cannot take precedence over a
commissioner of income Tax order.
5. S.40 decree
may be enforced against a legal representative.
6. S.46: mode
of seizure of property in dwelling house.
7. S.48:
private alienation of property after attachment is void.
8. Laroya V
Mityana Staple Cotton Co: lease granted after attachment was
void.
9. Lobo V
Madhvani: a private transfer of party under attachment is void.
ATTACHMENT
OF DEBTS:
1. 0.23 if a third
party owes a debt, judgment will be given for one party against the other.
These are garnishee proceeding
2. UCB
V Ziritwawula: court must establish first that the funds are available and
the garnishee admits indebtness to the judgment debtor.
ATTACHMENT
AND SALE:
1. It involves
actual seizure of the defendant’s property.
2. S.45 details
what can be attached except personal effects, books of a/c, a mere right to sue
for damages, aright to personal services, stipends and provisions etc.
3. Frank
Sembeguya: Court officers are only protected, in respect of lawful acts
done in execution. Court brokers had no license hence no protection,
removal of parts of the house amounted to attachment of the house yet an order
was not for attachment of the house.
STAY
OF EXECUTION:
1. 0.43 r.4 an appeal
to the High Court is not a stay of proceedings under the decree.
2. 0.43 r.4 (2): the
ct which passed the decree is the ct to apply to for stay of execution.
3. Norah Mayanja V
Habre International: applicant applied for stay of execution. The
appellant had permanent residence on the disputed land and argued that she
would suffer injustices if the bldg was demolished before appeal was disposed
off. Temporary stay can be granted ex-parte but a final order must be
made with notice to the other party.
CORRECTIVE
REMEDIES.
1. They are
remedies available to a party disgruntled by a ruling of ct with original
jurisdiction.
2. Grounds are:
misapplication of the law, improper exercise of jud. Discretion,
reconsideration of decision.
3. Review: s.83
and 0.46 from an order or decree for which an appeal is allowed but has not
been preferred or from which no appeal is allowed.
4. Re
Nakivubo Chemists: any person aggrieved by order can apply, order for
review will not be granted where circumstances are extraneous to the: Yusufu
V Nokrah.
5. Baguma V
Kadoma: failure to file appeal due to lack of merit was not a ground for
review.
6. Grounds
are:
- Discovery of new
and important matter of evidence
- Evidence
was not available at the time decree was passed.
- There
is a mistake or error on the face of the record.
- Any
other sufficient reason
7. Review is
applied for in the same court.
8. Ndawula V
Mubiru: failure to put memorandum of appearance on court file, ct would not
have dismissed application to file a defence out of time if memo was put on
file.
9. An
Application to renew is a bar to all subsequent application.
10. It only available in
the High Court Chief Magistrate’s court and G.1 Courts.
11. Ssewanyama V Aliker:
power of review is not exercisable by the Supreme Court it is best owed on the
High Court.
12. Procedure applicable is
notice of motion.
REVISION:
1. S .54 CPA. The
High Court may order for a record of a case in grounds specified under.
2. Procedure applicable:
parties may give notice, but it will not revise where revision will cause
serious hardship to any person Kabwengure V Kaniabi.
3. LDC V Mugalu an
aggrieved party may write to the registrar to avail himself of s.84.
4. Juma V Nyeko even
a decision of a Chief Magistrate on appeal may be revised.
5. Kahuratuka V
Mushorishori and Co. it may be moved to revise.
Bameka V Dodovise Nviiria: a mere fact that court reached the wrong
decision even on a point of law is not sufficient to cause a ground for
revision, an irregularity cannot be acted a pontiff it is material to a
case an illegality cannot be led to stay.
AHIMBISIBWE
INNOCENT BENJAMIN
(Award winning Entertainment
Lawyer)
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