CASENOTES ON CIVIL PROCEDURE I

Byaruhanga Joshua Morris Summaries – Civil Procedure 1 Case summaries

 1) Rule 56 as aforesaid is procedural
COMMENCEMENT OF only and does not affect a substantive
PROCEEDINGS law by which a right of appeal is
Principle: Service of notice to an conferred by a municipal law. Its
advocate is in al normal circumstances primary purpose is to provide that a
as good a service as one made to the notice of appeal can be given before
advocate’s client. any formal decree is drawn up.
UNTA EXPORTS LTD VS CUSTOMS
[1970 EA 645 2) An appeal is not instituted in the
Goudie J held that:
court of appeal until the record of
1) Notice was properly given to the
appeal is lodged in its registry, fees are
Advocate for the claimant where the
paid and security lodged as provided
Commissioner General of Customs gave
for in rule 58 of the rules.
that notice to an advocate with whom
3) By virtue of rule 72(1) of the Court of
he had been in correspondence with and
appeal rules, the court now has a right
2) No document is properly filed until
top waive an irregularity in the
the fees have been paid.
procedure.

Principle: The Court of appeal can

waive any procedural irregularity in the
lodgement of an appeal.
Principle: An advocate who commences
MOTEL SCHWEITZER VS THOMAS
proceedings without the authority of
EDWARD CUNNINGHAM AND
the plaintiff incurs personal liability
ANOR [1955] 22 EACA 252
with regard to costs.
The memorandum of Appeal was filed
BUGERERE COFFEE GROWERS LTD
th
on the 6 day of December 1954 but no VS SSEBADUKA [1970]EA 14
decree upon judgment was drawn until The action was brought in the name of a
th
7 Jan 1955. a preliminary objection was company challenging the appointment

taken by the respondents that the appeal of the compnay’s new directors. It was

was incompetent as no decree was in objected to by the defendants at the

existence at the time of lodging the outset that the action was incompetent

memorandum and that the appellant because the company had given no

had failed to file the appeal in authority to have the suit instituted

accordance with the rules. Youds J held:

Sir Barclay Nihill held: 1) When companies authorize the

commencement of legal proceedings, a

Byaruhanga Joshua Morris Summaries – Civil Procedure 1 Case summaries

resolution or resolutions have to be Pursuant to section 1(2) of the Civil
passed either at a company or board of Procedure and Limitation (Misc. Prov.)
directors meeting and recorded in the Act of 1969 the written notice was to be
minutes; no such resolution had been in the form of schedule 2, which
passed authorizing the procceedings. included space for the signature of the
2) Where an advocate brought legal plaintiff or his advocate and an
proceedings without the authority of the unsigned notice was defective and the
purported plaintiff, the advocate action would be dismissed.
becomes personally liable to the
defendants for the costs of the action. Principle: An appeal is not properly
instituted until the fees are paid.
BUIKWE COFFEE ESTATES LTD MARGARET MUSANGO VS
AND 2 OTHERS VS LUTABI [1962] FRANCIS MUSANGO [1979] HCB 226
EA 328 Ntabgoba Ag. J
Bennet J held: 1) No document is properly filed until
1) The question whether the advocate the filing fees have been paid. (cf. Unta
was had been duly instructed to sue Exports Vs Customs).
would depend on the court’s finding, 2) The court has a discretion to allow
who were the lawful directors, this enlarge the time for filing an appealout
could only be determined after evidence of time even when the application is not
had been heard at this stage. Want of made until after expiration of the said
authority to sue did not plainly appear time.
and therefore the suit would not be
struck out. Principle: A valid statutory notice of
intended suit against the government

2) The court’s leave ought to be obtained must among others disclose all the

to be obtained to join other causes of material facts of the cause of action.

action with a claim for possession of the RWAKASORO AND 5 ORS VS THE

company’s coffee factory but as leave ATTORNEY GENERAL (1982) HCB 40

had now been applied for, leave would Asthana J. held

be given. 1) Under section 1 of the Civil Procedure

and Limitation (Misc. Prov.) Act 20 of

Principle: An unsigned notice of 1969, no suit can lie against Government

intention to sue is invalid inlaw. until the expiration of 60 days (now 45)

LYAKIYE VS AG [1973] 1 ULR 124 next after which notice has been

Lubogo Ag. J held delivered or left at the office of the

Byaruhanga Joshua Morris Summaries – Civil Procedure 1 Case summaries

Attorney General stating the name, Principle: Payment of a requisite fee is a
description and place of residence of the condition precedent to filing of an
intending plaintiff, the name of the action

court in which it is intended the suit to CHRISTOPHER KATURAMU VS

be instituted and the facts constituting MAKYA & 2 OTHERS [1992-93] HCB

the cause of action. 161

2) The period of 60 [now 45 Mukanza J. held

days ]prescribed under the act is 1) an application to review a court order

intended for the purpose that the is made on discovery of a new and

government may investigate the claim important matter of evidence and for a

and if possible settle it out of court. mistake or error apparent on the face of

3) Unless sufficient facts are disclosed in the record

the statutory notice, the government 2) There is no action filed unless the fees

may not know what the claim is about. have been paid. Where the record

4) It is a practice for advocates to annex showed fees paid in terms of the Written

a copy of the intended suit with a Statement of Defence and no fees for the

statutory notice so that all relevant and counter claim; that was an irregularity

necessary facts are known to the person on the part of the registry staff coupled

to whom the notice is given. with the fact that the format was not
followed, the court was of the view that

Principle: No suit against a public the respondent should not suffer for this

corporation will be entertained unless a irregularity.

statutory notice was given before its

commencement. ISSUE AND SERVICE OF COURT

PAMBA VS COFFEE MARKETING PROCESS

BOARD [1975] HCB 369 Principle: A notice of motion not signed

Nyamchoncho J held: by a judge is a nullity.

1) By virtue of section 1 of the Act, no (this has been changed by virtue of the

suit can be instituted against a Practice direction 1 of 2002 which

scheduled corporation unless a written grants Registrars powers!!)

notice has been delivered to or left at the NAKITTO AND BROS LTD VS

office of the secretary of the corporation. KATUMBA [1983] HCB 70

Kityo J.
2) Where a statutory notice is denied,
1) The expression Notice of motion falls
the onus of proof of service of such
within the meaning of suit as used and
notice is on the plaintiff.
defined in the CPA; thus since a suit can

Byaruhanga Joshua Morris Summaries – Civil Procedure 1 Case summaries

be by way of notice of motion; not Karokora Ag. J
signed by the judge or an officer Although in practice the notice of
appointed by him, nor was it sealed motion carries signatures of judges and
with the court seal, it did not comply seal of the courts, these are not a legal
with the procedure under Or.5 and the requirement and their omission does not
application was therefore a nullity. render an application fatal. The
application was properly before court in
so far as it was signed by the registrar
KAUR AND OTHERS VS CITY and that order 5 sub rule 2 did not apply
AUCTION MART LTD [1967] EA 108 with this type of application as it dealt
Jones J. with summons.
A notice of motion should be signed by Editorial Comment- try to reconcile this
a judge and sealed with the seal of court with the holding of Kityo J. in Nakitto
under o.5 rule 5(3) of the CPR. Brothers Vs Katumba.
NB- this position changed with the
coming into force of the Practice Principle: Service on Sunday is
Direction 1 of 2002 which gives ineffective
registrars powers to handle HANINGTON WASSWA VS MARIA
interlocutory applications. OCHOLA [1992] HCB 47
The Supreme court held; (Manyindo

Principle: a rubber stamp may DCJ, Oder and Platt JSC)

sometimes be sufficient seal of court Service on a Sunday in void within the
THE ATTORNEY GENERAL VS meaning of Order 52 r.9 of the CPR as
KHATOON CASSAM SATCHI AND no service can be effected on Sunday.
ANOR [1960] The affidavit of service should comply
Mosdell J. with o.5 r17 of the CPR. Where service is
In the absence of any mechanical effected under o. 5 r. 13, the address of
apparatus for the sealing of documents, the person identifying the individual to
a stamp may be sufficient used and be served should be annexed to the
accordingly such court documents shall affidavit.
be valid.
Principle: absence of the signature of a Principle: where there are more than
judge or seal of court on a notice of one defendants, service of the court
motion is invalid processshould be effected on them all.
JOHN KANGAINA VS DABO
BOUBON [1986] HCB 59

Byaruhanga Joshua Morris Summaries – Civil Procedure 1 Case summaries

EAGEN INSURANCE CO LTD VS That by the provision of O.29 r. 24 under
ELIZEPHAN K. NTENDE [1979] HCB which tge application was brought, the
227 burden of satisfying the court that the
Ntabgoba Ag. J held; summons alleged to have been served
Where an applicant applied to set aside had not been served was on the
the exparte judgment and decree on the applicants.
grounds that the suit was brought to be Applying the ejusdem generic rule, the
in a mortgage deed but the plaintiff secretary of the general manager was
company sought to burden only one out not within the class of persons intended
of the six defendants to pay the sums by the rule and could not fall within the
owing; ambit of principal officer of the
In absence of a stipulation to the company; hence service of the process
contrary in the deed, each of the was not effectively effected on the
defendants should have understood to corporation.
contract to pay back to the mortgage his
share of the loan with interest thereon. JAMES MUSAJJA LUMBWA VS
Thus having decided to join all the six BITUMASTIC LTD [1982] HCB 103
defendants with payment of a total sum Manyindo J.
of 29028/= was to say the least, unjust The service of summons to enter
and inequitable. appearance on the defendant was
Therefore the ground relied on by the improper for two reasons:
applicant in support of the present First, the defendant being a limited
application was sufficient ground to liability company should have been
amount to good cause under order 33 r. served as provided for by O 26 of the
11 (now order 37 rule 11 of SI 71-1). CPR, i.e service on a corporation is
effected through service on the
Principle: Service of the court process on company secretary, a director or other
a corporation is to be effected upon a principal officer of the corporation or by
principal officer of the corporation. leaving a summons at the registered
office of the corporation or at its place of
AUGUSTINE OKURUT VS GERALD business.
LWASA AND PRODUCE
MARKETING BOARD [1988-90] HCB
164
Berko J. presiding held:

Byaruhanga Joshua Morris Summaries – Civil Procedure 1 Case summaries

JF IJJALA CORPORATION VS summons, as required under order 5 r17
ENERGO PROJECT [1988-90] HCB 157 of the Rules, which make it mandatory
Tabaro J; held as is designated to ensure that there is
The summons was left at the principal actual service, carried out properly; it
place of business of the defendant would be wrong for court to accept the
corporation and under the fact that there was service of summons
circumstances, the summons were duly especially where the defendant did not
served. sign them.

Principle: a defective affidavit of service Principle: Illiteracy in English is no

would set aside the judgment. ground for ignoring a summons.
MATIASI KANIMBA VS
SURYANKANTI PATEL [1973] HCB FEBIANO MEGERO AND PAUL
185 KAMEDDE VS PATRICK
Musoke J KAKUNGULU [1976] HCB 289
The affidavit did not comply with o. 5 r. Butagira J.
17 of the CPR. The process server had to Illiteracy in English is no ground for
state in his affidavit inter alia, the name ignoring a summons. The great majority
and address of the person, if any of persons upon whom summons are
identifying the person served and served in Uganda are illiterate in
witnessing the delivery or tender of the English and if illiteracy in English was
summons. It was imperative to point to be regarded as an excuse for ignoring
out the person identifying the defendant. a summons or other court document the
work of courts would be gravely
Principle: The names and addresses of handicapped if not paralyzed. The
people identifying the defendant must person upon whom the summons is
be stated in the affidavit. serve, if he is unable to read it should
take it to some person who can read it.
OSUNA OTWANI VS BUKENYA
SELANGO [1967] HCB 62 Principle: Time does not begin to run
Allen J.; until proper service has been effected.
Since the names and addresses of OMUSA KUDANGA VS NATIONAL
persons who identified the defendant INSURANCE CORPORATION [1977]
were not included in the affidavit of HCB 248
service and since these persons did not Lubogo Ag CJ
witness the delivery or tender of the

Byaruhanga Joshua Morris Summaries – Civil Procedure 1 Case summaries

Time does not begin to run agains t a Principle: The process server must make
defendant unless he has been properly a genuine effort to serve the defendant
served. personally

The fact that both appearance and the

defence were filed before proper service ZAKALIYA KIGUNDU VS LEO

was effected was immaterial and it was KASSUJA [1971] HCB 164

wrong to enter an interlocutory Justice Russell

judgment for the Plaintiff. The court, therefore was not satisfied
that ei9ther the summons or the hearing

Principle: Service on the advocates is notice had been served in accordance

proper service with the CPR. The summons would

BENJIRO AND 5 OTHERS VS therefore have to be properly served on

KAMANDA [1977] HCB 331 the defendant and the suit would then
Ark J proceed in the normal manner.
Under o3r4 of the CPR, any process
served on the advocate of any party or Principle: waiver of irregularities in the

left at his office shall be presumed to be service of summons may be inferred

duly communicated and made known from the filing of the defence.

to the party whom the advocate

represents and shall be effectual for all NANJIBHAI PRABUDAS AND CO.

purposes as if the same had been given VS STANDARD BANK LTD (1968) EA

to or served on the party I person. 670

Harris J.
In the present case, the process was sent
Even if it’s the order for service out of
by the counsel for the defendant for
jurisdicition had been wrongly made;
service on the plaintiffs to their
the Kenya courts have no jurisdiction to
advocates and since there was no other
set aside service effected in Uganda by
address of the plaintiffs on record
the Uganda court.
except through their advocates, the
Even if the service of summons was
service of the process was effectual and
defective, the defect constituted an
sufficient.
irregularity capable of being waived
and did not render the service a nullity
and;
Any irregularity in the service had been
waived by the defendant by entering

Byaruhanga Joshua Morris Summaries – Civil Procedure 1 Case summaries

appearance and by delay in bringing the BELIRAM PARIMAL AND CO. VS.
application for hearing and MRS SALIKIND [1924] 27 KLR 28
The defendant ‘s alternative application Cram Ag J
for extension of time for filing its An advocate can only be discharged

defence was misconceived because a from liability to receive service of the

decree had already been issued and proceedings by substitution on the

should be refused in any event on the record of another advocate of the party

merits. in person. After such a discharge has

been effected and entered on the record,
the discharged advocate can not be
Principle: Meaning of the phrase ”can served nor can he accept service.
not be found” under order 5 of the CPR A mere statement to the judge in court
that he has withdrawn from
ERUKANA KAVUMA VS ST MEHTA representing the party in question does
[1960] EA 305 not enable him to have his name taken
Sir Audley J held off the record nor discharge him from
O5 r9 was not complied with because no the proceedings.
duplicate of summons was tendered or The acceptance of a brief in litigation is
delivered to the defendant’s wife. in the nature of an entire contract and
Service was therefore bad and; The the advocate owes a duty to his client
absence of the defendant from Uganda and should not be entitled to discharge
without any information about the himself without an order of court.
address in India or whether he would
return and if so when was not sufficient Principle: sufficient inquiry must be
ground for saying that the defendant made of an absentee defendant to ensure
cant be found. effective service of summons.

WAWERU VS KIROMO [1969] EA 172 PIRBHAI LALJI AND SONS VS

As the process server made no inquiry HASSAN ALI DEVJI [1962]EA 306
about the defendnats’ whereabouts; it Sir Audley McKisack CJ
could not be said that he could not be Where no proper or sufficient inquiry
found so as to allow service on his wife was made as to the defendant’s
under O5 r12 of the Rules. whereabouts or whether the defendant
could not really be found, service on the
Principle: The duration and legal defendant's wife was not effective.
implications of agency by an advocate

Byaruhanga Joshua Morris Summaries – Civil Procedure 1 Case summaries

 Principle: Disclosure of the name and
Principle: Requirements of leave to address of the person identifying the
serve out of jurisdiction. defendant is a statutory duty.
Sir Udo Udoma CJ
PAUL DONNEBAUM VS KURT The disclosure of the name and address
MIKOLASHEK [1966] EA 25 of the person who identified and
Farrell J. witnesses delivery or tender of the
The plaintiff should show that he has a summons to the defendant at the
cause of action which could properly be material time is a statutory duty.
described as probable success. Failure to disclose the name of the clerk
Principle: affixing a copy of the in the two affidavits sworn by one musa,
summons on the ordinary residence of a the process server, had the effect of
defendant can be proper service. rendering them defective for non
compliance with the provisions of O5
ERUKANA OMUCHILO VS AYUB r17 and
MACHIWA [1966] EA 229 It was wrong for the registrar to have
Harris J. acted on such a defective affidavit of
Before a process server can validly effect service
service by affixing a copy of the
summons to the premises, he must by APPEARANCE AND AGENTS
virtue of O5 r14 exercise all due and
reasonable diligence to find the Principle: affixing a copy of the
defendant or any of the persons summons on the ordinary residence of a
mentioned in O5 r9,11 and 12 and it is defendant can be proper service.
only when after using such diligence ,
and none of them can be found that he EBOO’S PETROL STATION LTD VS
can affix a copy of the summons on the BLACKSTONE UTILITIES LTD (1985)
premises; full particulars of which 28 KLR 20
should be given and service upon the Cram Ag J
defendant in this case was wholly A corporation aggregate having no
ineffectiveas the process server had not physical existence cvan act through its
used all due and reasonable diligence to agents which it can lawfully appoint
find the defendant or the persons under the companies ordinance cap 288.
mentioned in 0 5 rules 9,11 and 12. at common law, a limited liability
company can not sue except by a
professionally qualified agent.

Byaruhanga Joshua Morris Summaries – Civil Procedure 1 Case summaries

O6 rule 25 requires that every pleading behalf, when the suit was dismissed the
must be signed by an advocate or by a plaintiff was then pursuant to O3r1 of
party if he sues in person but this is the CPR legally present before the court
qualified by o28 r1 which provides that on that date.
in a suit by a corporation, the pleading
may be signed by a secretary, director or Principle: striking out a plaintiff
principal officer. As the plaint presented
did not purport sop to be signed but AYIGIHUGU AND CO. ADVOCATES

merely by an agent without status, it VS MARY MUTETERI [1988] HCB 161

was irregular and rejected. Tsekoko J

An unqualified agent can perform Where a plaintiff proceeded exparte, it

purely ministerial acts for his principal was not proper that the court order that

in alaw suit without being in contempt any person be substituted as a plaintiff.

and the mere act by the agent in Under o1 r10(1) the court would have to

carrying the summons to the registry investigate in order to be satisfied that

was not in itself unlawful there was a bonafide mistake in taking

Nothing in the advocate’s ordinance of the proceedings not in the name of the

1949 prohibited a limited liability donor but the donee

company from instituting its own suit Principle: a party can lawfully file a

through an unqualified agent provided defence through his/ her recognized

the agent held the company’s power of agent.

NASSANGA ALERO VS NANYONJO
attorney for that purpose.
[1977]HCB 320
Ssekandi J
A party can be represented by his or her
Principle: appearance by advocate is
recognized agent under o 5. thus in the
good as appearance in person.
instant case, the letter the aunt to the

FREDERICK SEKYAYA SEBUGULU appellant could be treated as a power of

VS DANIEL KATUNDA [1979] HCB attorney abd

46 Rules of procedure are a guide to the

Khan J. orderly disposal of the suits and a

An order of dismissal could be treated means of achieving justice between

under O9r19 only if a party was not parties. They should never be used to

represented onthe hearing date. In as deny justice to a party entitled to a

much as the plaintiff’s counsel was remedy.

present and appeared on the plaintiff’s

Byaruhanga Joshua Morris Summaries – Civil Procedure 1 Case summaries

Principle: the consequences of failure to Odoki J.
file a defence upon service of summons. A mistake or oversight on the part of the
SIRASI BITAITANA AND 4 ORS VS counsel though negligenty is sufficient
EMMANUEL KIWANUKA [1977] HCB cause for setting aside an exparte decree
34 (followed in Ahmed Zirondomu Vs
Allen J Mary Kyamul;abi (1975) HCB 337). On
Where applicant are served with the strength of the affidavit of the
summons to enter appearance and they counsel for the applicant wherein it was
failed to respond to them, then they had deponed that counsel did not appear at
by their failure put themselves out of the hearing of the application because
the court and had no locus standi he was mistaken or confused, sitting in a
Ignorance of the procedure is no defence wrong court which was a genuine
except in very exceptional reason, counsel was prevented from
circumstances. appearing by sufficient cause.
Principle: appearance by recognized
Principle: setting aside an exparte agents is deemed good appearance
decree: the applicant must show
sufficient cause for non appearance: 09 GAKWAVU VS GASENGAIRE
r 24 [1977]HCB 322
Ssekandi J.
KAWOOYA VS NAAVA [1975] HCB Any person may be represented by his
314 recognized agent in any trial. The court
Ssekandi J. is also empowered to give the conduct
Under o9 r24, court shall set aside an of such suit to such a person as it deems
exparte decree and judgment entered fit.
against a defendant on being satisfied
that the defendant was prevented by Principle: Defination of a suit
sufficient cause from appearing when
the suit was called for hearing and MANSION HOUSE LTD VS JOHN
therefore on sufficient cause being STANSBURY WILKINSON (1954) 2
shown for failure to appear and defend EACA 98
when the suit was called up for hearing, Briggs JA Et al
the exparte judgment would be set aside. A suit is any civil proceeding
commenced in any manner prescribed
SSENYANGE VS NAKS LTD by the rules made by the rules
[1980]HCB 31

Byaruhanga Joshua Morris Summaries – Civil Procedure 1 Case summaries

committee to regulate governance of the defendant had not appeared within
courts under civil procedure rules. the meaning of the rule. Court held that
A decree can only arise in a suit; an appearance by the advocate was
order may arise in a proceeding which appearance within the meaning of the
is not a suit. rules.

Principle: Appearance of advocate; duty Principle: Granting an adjournment to

to tell court the names of the parties for enable the defendant appear in person or
whom he is appearing. by another advocate

P&TC VS TERRAZO PAVIORS [1973] KISEBU VS OGENGA [1970] EA 96

EA 344 Kneller J
Onyiuke J The legal secretary can act as an
Appearance under the rules means advocate for persons other than the
attendance in person or by an advocate community and thus the magistrate was
in court on the date stated in the wrong in not allowing the application
summons. for an adjournment to appear in person
Where parties appear by advocate, it is or by another advocate.
the duty of the advocate to state in cout
the names of the parties for whom he is
appearing. PARTIES TO CIVIL ACTIONS

Principle: misjoinder of parties and

Principle: Appearance by an advocate is causes of action.

lawful
BARCLAYS BANK DCO VS CB

SHANGARA VS FARM VEHICLES PATEL [1959]EA 214

LTD [1969] EA 588 Sheridan J.

Platt J. Where distinct causes of action accrue

At the trial of a civil suit in a on different dates and against different
magistrate’s court where, the defendant defendants and ich the liability of
was absent but his advocate was present different guarantors arises is separate
and stated he was ready to proceed with and distinct, the two causes of action
the hearing; the plaintiff asked for and can not be joined. Followed in G.K.
obtained judgment on the ground that

Byaruhanga Joshua Morris Summaries – Civil Procedure 1 Case summaries

KAMANI VS M.K. DESAI (1954) ULR his consent and accordingly, in the
135. absence of consent of the proposed
plaintiff, no substitution could be
allowed
Principle: Where there is a common
point of law affecting parties, there can
be no misjoinder of parties and causes Principle: power to dismiss a party
of action. from a suit:
This was held in OVERSEAS
THE BANK OF INDIA LTD VS TOURING CO. VS AFRICAN
AMBALAL AND ORS [1965] EA 18 PRODUCE AGENCY (1962) EA 190 ;
Sheridan J Kenneth O’ Connor P. presiding.
O1 r13 of the CPR applied because
although the plaintiffs sought separate
remedies against each guarantor, the
same transaction namely the company’s Principle: a representative order is
overdraft related to all of them in terms required in the case of unnamed
of the questions of law and fact and plaintiffs.
therefore there was no misjoinder of SSONKO AND ORS VS HALUNA
parties of causes of action. AND ANOR. [1971] EA 443
Mead J.
THE SAME PRINCIPLE IS EVIDENT An allegation of fraud against the
IN UGANDA GENARAL TRADING second defendant shows a cause of
CO. VS JINJA CASH STORES LTD action but in absence of a
AND ANOR [1965]EA 469 by representnative order, the claim on
SHERIDAN J. behalf of an unnamed plaintiff could not
stand and would be struck out.
RAMZANALI VS NURDIN [1963]ULR
37 (affords no clear principal on Principle: Notice of application for a
misjoinder). representative order is not necessary.
LOMBARD BANK ING KENYA VS JOHNSON VS MOSS AND ORS [1969]
SHAH [1960] EA 969 EA 654
Miles J. Phadke J held
While a defendant may be joined Notice of application for a
without his consent, no person ought to representative order is not necessary;
be compelled to bring an action without the Defendants and all members of the

Byaruhanga Joshua Morris Summaries – Civil Procedure 1 Case summaries

club had the same interest in the suit STROUD VS LAWSON AND ORS
and the represenantative order had been [1898] 2 QB 44
properly made and as a result there was AL Smith, Vaughan Williams and
not need to delve into the details of the Chitty LJJ

notice of application for the said order. The plaintiffs were not entitled to join
the causes of action in so far as the right
to relief claimed by him in his personal
Principle: A representative suit is only capacity and the right to relief claimed
filed after leave of court has been by him representing the shareholders
granted. did not arise out of the same transaction
or series of transactions within the
PAUL KANYIMA VS R. RUGOORA meaning of the rules.
[1982] HCB 33
Manyindo J SANDERSON AND BULLOCK
This being a representative suit,, it was ORDERS
mandatory under the CPR for the
plaintiff to obtain leave of court before BULLOCK VS THE LONDON
filing it and a suit that is brought GENERAL OMNIBUS CO. AND ORS
without leave of court is incompetent (1907) 1 KB 264
and can not be stayed but should be Collins MR, Cozens-Hardy and
struck out. Farwell LJJ
After a verdict and judgment have been

THE UNIVERSITIES OF OXFORD pronounced it was too late to object to

AND CAMBRIDGE VS GILLS AND jurisdiction to try action on the ground
SONS [1898] 1 CH 55 that the torts were allegedly severally
Stirling J held: against the two defendants .
The action arose out of the same series In an action of torts tried with the jury
of transactions, commons questions of in which relief is claimed against two or
fact would arise; and thus the conditions more defendants in the alternative, there
for joinder of action were evident and as is jurisdiction to direct that costs
a result the joinder was lawful. payable to a successful defendant
should be included in the costs
recoverable by the plaintiff from an
Principle: misjoinder of causes of action unsuccessiful defendant.

Byaruhanga Joshua Morris Summaries – Civil Procedure 1 Case summaries

VICARIOUS LIABILITY MUWONGE VS AG [1967] EA 17
HELD; Newbold P, Sir Udo Udoma CJ
SAMUEL KIZITO MUBIRU AND and Duffus JA
ANOR VS G.W. BYANSIBA AND The firing of the shot was an act done
ANOR [1985] HCB 106 within the exercise of the Police man’s
Karokora J. duty for which the Governement of
A plaint will be struck out if it omits to Uganda was liable as a master even
mention that a servant was acting in the though it was wanton, unlawful and
course of his employment. unjustified.
Newbold PAdded that an act may be
JOVELYN BARUGAHARE VS done in the course of the servant’s
ATTORNEY GENERAL SCCA 28/ 1993 employment so as to make master liable
Manyindo DCJ, Odoki JSC and Platt even though it is done contrary to the
JSC orders of the master and even if the
Held servant is acting deliberately, wantonly,
Vicarious liability operates only when
negligently or criminally for his own
the master- servant relationship is
benefit.
established and the servants committed
a tortuous act in the course of their
employment. REPRESENTATIVE ACTION
(Most of these are covered under
UGANDA AMERICAN INSURANCE joinder of parties and causes of action)
CO. LTD VS PHOLAS RUGANZU
SCCA 10/1992 LEWIS VS DAILY TELEGRAPH [1964]
Held Manyindo DCJ, Seaton JSC and 2 QB 601
Platt JSC Sellers, Pearson and Russell LJJ
The respondent had failed to prove that Co- plaintiffs, in a consolidated action
the driver was acting in the ordinary were not entitled to separate legal
course of his employment at the time of representation without leave of court.
the accident. In questions of vicarious The action as it existed was not properly
liability , it is wise for the plaintiff to sue constituted and as a result there being
both the master and servant to ease the no reason for granting leave for separate
settlement of the questionof whether the representation, the action did not
master servant relationship existed. proceed for trial until a single solicitor
was placed on the record for both
plaintiffs.

Byaruhanga Joshua Morris Summaries – Civil Procedure 1 Case summaries

 beneficial to all whom the plaintiff
KAMOUH VS ASSOCIATED proposes to represent. This was
ELECTRICAL INDUSTRIES followed in Campbell Vs Thompson
INTERNATIONAL LTD [1980] 1 QB and Anor [1953] 1 QB 445 )
199
Darkes J
Although the plaintiff under Lebanese THIRD PARTIES
law had a good title to sue in the
English courts, in his representative Principle: This notice is issued where a
capacity; the title was not recognized in third party is under liability to
the English courts since the English indemnify the party seeking its issuance.
courts did not provide for safeguarding
of property and affairs of absent persons EDWARD KIRONDE KAGGWA VS L.

save where leave to swear death and an COSTAPERALIA AND ANOR [1963]

English grant of probate or EA 213

administration was obtained. Slade J

In terms of order 1 r 18, the court has to
consider whether there is a proper

Principle: The sole test for a question to be tried as to the liability of

representative action is whether all a third party to make contribution or

persons alleged to be represented have indemnity. The learned judge relied on

an identical interest in the suit. the principle enunciated by Lyon J in
Birmingham Vs London and NW
DAVID ABDALLAH AND OSMAN Rly Co. Ltd [1887]34 Ch. D 216 and this
VS AHMED SULEMAN AND ORS was followed in Yafesi Walusimbi Vs
[1969] 13 EACA 1 AG [1959] EA 223
Sir John Gray CJ
In a representative suit, the sole test for
a representative action is whether all Principle: a third party notice must be
persons alleged to be represented have accompanied by a copy of the plaint.

an identical interest in the suit. (quoted

Lord McNaughten in Duke of Bedford OBANGO VS UTC [1975] HCB 118

Vs Ellis (1901) 70 LJ Ch 105 thus: given Manyindo J.

a common interest and a common A copy of the plaint of the main suit

grievance, a representative suit is in ought to have been attached to the

order if relief sought is in its nature notice. However this violation was not

Byaruhanga Joshua Morris Summaries – Civil Procedure 1 Case summaries

fatal; to the application and the EAST MENGO GROWERS COOP
irregularity could be cured by directing UNION VS NIC (1985) HCB 94
the applicant to serve the third party Held Opu J.
notice with a copy of the plaint. Where the third party ignores the
summons of court, this is a proper case
wherein judgment should be entered
Principle: third party procedure is against the third party.
limited to questions of indemnity or the
need to make contributions STRIKING OUT/ SUBSTITUTING
PARTIES
TOTAL OIL PRODUCTS LTD VS
WILLIAM M.K. MALU AND ORS BENJAMIN SAJABI VS TIMBER
[1969] EA 164 MANUFACTURERS LTD [1978] HCB
HELD; where there was no claim no 202
indemnity or contribution in the notice Butagira J.
the summons for direction ought to be A non existent person can not sue. No
dismissed. amendment could be made under O1r
10 of the CPR because this is only
Principle: a right to indemnity or applicable where the defendant wrongly
contribution can arise by contract or by sued has a legal existence and a
equity question arises of suing a wrong party
who may be substituted by the right one.
EASTERN SHIPPING CO. VS QUAH Since in the eyes of the law the party
BENG KEE [1924] AC177 AT 182 sued had no legal existence; the
Held; Chitty J applicant of the plaintiff could not be
In order to bring a case within the rules madder to pay costs to a non existent
it is not enough that if the plaintiff person.
succeeds the defendant will have a In the same vein, a suit brought by a
claim for damages against a third party non existent plaintiff ought to be struck
but that the defendant will have against out. This was followed by Templeton J.
a third party a direct right to indemnity in FORTHALL BAKERY VS
as such which right must generally if FREDERICK MUIGIAA[1959] EA 474
not always arise from contract express
or implied. MATOVU VS GURU SINGH AND
POSTER MASTER GENERAL [1975]
HCB 13

Byaruhanga Joshua Morris Summaries – Civil Procedure 1 Case summaries

Manyindo J. ORS [1907] 1 QB 393 Meggaw and
A party to a suit who ahs ceased to exist Edmund Davies LJJ on appeal held that
must be struck out. In this case Post an amendment to add a new defendant
master General ceased to exist when the is not permissible when a relevant
EA Posts and Telecommunications Act period of limitation affecting the
1951 was replaced by the EA Posts and porposed defendant has elapsed.
Telecommunications Act 1970. thus the Followed MABIRO VS EAGLE, STAR
second defendant would be struck out NAD BRITISH DOMINIONS
and replaced with the EA Posts and INSURANCE CO LTD [1932] 1KB 485
Telecommunications Corporation.
PLEADINGS AND AMENDMENT OF
ALICE KIWANUKA VS PM PLEADINGS
PURSHOTAM [1973] HCB 197
Katinti J Held R.K. KASULE VS MAKERERE
Where a cause of action arises at the UNIVERSITY KAMPALA [1975] HCB

time of death of the deceased; once the 376

probate or letter s of administration are Ssekandi J

granted, the legal representative may be Held

added as a defendant. A claim of exemplary damages must be

specifically pleaded in the body of the

DHANESHVAR MEHTA VS plaint.

MANILAL SHAH [1965] EA 321 The system of pleadings is designed not

Spry J A held only to define with clarity abnd

An application to strike out or substitute precision the issues raises between the

a party is subject to the law of limitation; parties but also to fulfill some of the

in the instant case therefore, the court fundamental principles of natural justice.

would not be justified in exercising its

jurisdiction/ discretion as there had FEIBE TALITUKA VS ABDU

been delay in making the application NAKENDO [1975] HCB 275

and the effect of allowing the Khan Ag J

application would have been a defeat of An allegation in the plaint must be

vigilance. The application was barred by specifically or by necessary implication

limitation. denied.
Per Curiam

In LUCY VS WT HENLEY’S The particulars of the injuries have not

TELEGRAPH WORKS CO. LTD AND been given in the plaint with precision

Byaruhanga Joshua Morris Summaries – Civil Procedure 1 Case summaries

and accuracy. The description of the It is not necessary in pleadings to use
injuries was too general and not specific. the word special damage, where such
damage should be claimed provided
EPAINETO MUBIRU VS UCB [1971] 1 such a claim can be said to be intended
ULR 144 from a reading of the plaint.
Phadke J.
The need for the plaintiff to furnish JOSEPHAT MUTUNGI VS NDUGU
further particular of something KABUR [1969] EA 455
necessarily helps the defendant to Dalton J
adequately file his defence. Pleadings The plaintiff had 2 distinct and separate
must contain sufficient information to causes of action one for personal injury
enable the defendant to prepare his and the other for damage to the vehicle
defence. This was followed in Phillips and was not barred from bringing two
vs Phillips and Ors (1878) 4 QBD 127 suits against the defendants.
and Mbarar coffee curing works vs
Grindlays Bank ltd [1975]HCB 57 LETANG VS COOPER [1965] 1 QB 232
Diplock LJ held
CAT BISUTI VS BUSOGA DISTRICT A cause of action is simply a factual
ADMINISTRATION (1971) 1 ULR 179 situation, the existence of which entitles
Dickson J. Held the person to obtain from a court a
Under O 7 r 1(f), the obligation to plead remedy against another person.
facts showing that court has jurisdiction
ans a mere assertion that the court has
jurisdiction was not enough. What DANIEL SEMPA MBABALI VS WK
mattered was not an assertion in the KIDZA (1985) HCB 46
plaint that the court had jurisdiction Odoki J held
abut a statement of fact showing If the plaint shows that the plaintiff
jurisdiction. This principle was used by enjoyed a right, that right has been
Jones J in Alexander Mutongole Vs violated and that the defendant is liable
NYTIL [1971] HCB 144. than a cause of action has been disclosed.
PLAINT

NKALUBO VS KIBIRIGE [1973] EA

GHELLA VS ABDULLAH [1962] EA 102
765 Spry J held
Edmonds J held

Byaruhanga Joshua Morris Summaries – Civil Procedure 1 Case summaries

The introduction of a new cause of DHANJI VS RAMBHAI LTD [1970]
action should not be allowed without EA 515
pleading. Duffus, Law and Spry JJJA
The facts relied upon to make the
ODD JOBS VS MUBIA [1970] EA 476 appellant liable as an appellant should
Law, Lutta JJA and Duffus P held: have been pleaded.
A court may base its decision on an ONESIFORO BAMUWAYIRA AND 2
unpleaded issue if it appears from the ORS VS THE AG [1973] HCB 59
course followed at the trial that the issue Manyindo Ag J
has been left to the court to decide. The court has to look at a plaint in
deciding whether it has a cause of
LIBYAN ARAB BANK VS INTERPCO action . the defendant is under no
[1985] HCB 73 obligation to ask for further and better
Odoki J held particulars.
It is well settled that in considering BIRAKWATE VS KILEMBE MINES
application under O6 r 29, the court has LTD [1976] HCB 18
to look at the pleadings alone and any Kantinti J
annextures thereto and not any It is mandatory to reject a plaint which
subsequent affidavits. The affidavit discloses no cause of action. Followed in
of counsel to the applicant and the 2 ALI MUSTAFA VS SANGO BUS
letters were not admissible for the COMPANY [1975] HCB 93 AND

purposes of consideration of the NAGWOKO VS SIR CHARLES

application. TUTAHAMBA [1976] HCB 99

WRITTEN STATEMENT OF

MIKIDADI KAWEESA VS DEFENCE

ATTORNEY GENERAL [1973] HCB CHARLES SENGENDO VS AG [1972]

114 EA 516

Opu J Held Phadke J

A plaint must disclose a cause of action. Filing a WSD is a mandatory

O 7r 11(a) is mandatory. This principle requirement and where the AG failed to

was applied in HAMISI VS do so, he was denied leave to defend the

NATIONAL BANK OF INDIA [1937] 4 case.; court quoted KANJI DEVJI VS

EACA 55 and SULLIVAN VS ALI DAMODAR [1934] 1 EACA that “a

MOHAMED OSMAN [1959] EA 239 defendant who fails to file a defence

(Windham J). puts himself out of court and no longer

Byaruhanga Joshua Morris Summaries – Civil Procedure 1 Case summaries

has any locus standi and can not be Generally, an appellate court will not
heard”. interfere with the the discretion of the
judge in allowing or disallowing an
UGANDA WHOLESALERS VS amendment to a pleading unless it
IMPEX HOUSE LTD [1971] HCB 245 appears that in reaching his decision he
Younds J held has proceeded upon wrong materials or
A counter claim is tried separately only a wrong principle.
upon application of the plaintiff. O8 Amendments to pleadings sought
gave the court discretion to order a before the hearing should be freely
separate trial of a counter claim where allowed if they can be made without
application had been made for such. injustice to the other side and there is no
injustice if the other side can be
POSTS AND compensated by way of damages.
TELECOMMUNICATIONS VS The principles applicable to pleadings
TERRAZO PAVIORS [1993] EA 344 apply to amendment of statements of
Onyiuke J defence
A written statement of defence is of no
effect if the defendant fails to enter
appearance. JB SEMUKIMA VS JOHN KADDU
[1976] HCB 15
Saied Ag. C.J.
DENIAL A pleading may be amended to
determine the real questions in dispute
JOSHI VS UGANDA SUGAR between the parties.
FACTORY [1968] EA 570
Held: De Lestang and Spry JJA GENERAL MANAGER, EAR VS
A refusal to admit is for all practical THIERSTEIN [1968] EA 354
purposes a denial. Harris J.
Its incumbent upon the court under O6
r18 of the CPR to ensure that the
AMMENDMENT OF PLEADINGS pleadings are in a suitable form to
enable the real questions of controversy
EASTERN BAKERY VS CASTELINO
between parties to be determined so that
[1958]EA 461
the court should still consider the matter.
Sir Keneth O’ Connor P

Byaruhanga Joshua Morris Summaries – Civil Procedure 1 Case summaries

TALITUKA VS NAKENDO [1979] As a rule, a case must be decided on the
HCB 276 (covered under pleading) issues raised in the pleadings except
COFFEE MARKETING BOARD VS where an unpleaded matter becomes as
FRANK KIZITO [1992-3] HCB 175 issue by consent or it is generally
Mukanza J. canvasses by both parties without
An applicant does not have to show a objection.
bonafide mistake in order to be granted
leave to amend the pleadings DANJI RAMJI VS RAMBHAI AND
CO (UGANDA) LTD [1970] EA 515
SEBUNYA VS UCB [1992-3] HCB 224 Duffus P, Law JA, (Spry Dissenting)
Tinyinondi J. The facts relied upon to make the
No amendment to a plaint is allowed appellant [or party- emphasis mine]
where it would introduce a new cause liable should have to be pleaded.
of action.
A proposed amendment should not JAMES KAHIGIRIZA VS SEZI
violate the rules of pleadings. It should BUSASI (1982) HCB 148
not be vague or a mere muddle. It Kato Ag. J
should be concise and material to the Departure from pleadings in a plaint is
suit. not permissible; thus where counsel
departed from his original pleadings
UNPLEADED ISSUES was not permisble.

FERNANDES VS PEOPLE
NEWSPAPERS LTD [1971] 1 ULR 119 KAHWA AND BIKORWENDA VS
Law Ag P UTC LTD [1978] HCB 318
Contributory Negligence has to be Odoki Ag. J
expressly pleaded by the Defendant and The framing and settlement of issues is
since contributory negligence had not governed by O13 of the CPR and an
been pleadede, the court should not issue arises when a material proposition
have considered it and reduced the of law or fact is affirmed by one party
damages. and denied by the other; material
propositions being those propositions of
AG VS CHALRES BARANGA AND fact or law which the plaintiff must
BENALD KAGWERE [1976] HCB 45 allege in order to show a cause of action
Wambuzi, Law and Musoke JJA to constitute a defence.

Byaruhanga Joshua Morris Summaries – Civil Procedure 1 Case summaries

The object of pleadings is to bring the
parties to a clear issue and delimit the
same so that both parties know before
hand the real issue for determination at
the trial.
Although generally issues arise out of
pleadings, issues may arise out of
evidence adduced by the parties at trial
since under O13r3, court may frame
issues from allegations made on oath by
the parties or persons and advocates on
their behalf, in addition to being framed
from pleadings or contents of
documents produced by either of them
Under O6r15, court is empowered to
amend the issues or frame additional
issues on such terms as it may deem fit
at any time before judgment and may in
a like manner strike out any issues
appearing to be wrongly framed or
introduced.

Byaruhanga Joshua Morris Summaries – Civil Procedure 1 Case summaries