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THE UGANDA PENTECOSTAL UNIVERSITY.

FACULTY OF LAW
GROTIUS SCHOOL OF LAW
CIVIL PROCEDURE II
CLASS NOTES ON PLEADINGS, AMENDMENT OF PLEADINGS, SUMMARY
PROCEDURE AND JUDGMENTS, RELATED TO THE EARLIER CONDUCTED
ONLINE CLASSESS, LL.B IV STUDENTS, 2ND SEMESTER.
N/B. THE BELOW NOTES SHOULD BE COPIED TO YOUR RESPECTIVE NOTE
BOOKS.

PLEADINNGS.
Pleadings basically refers to documents filed in court; the same are initiated by the
Plaintiff later by the defendant upon filing his/her statement of defense.
Further, the Plaintiff may file a reply to the Defendants statement of Defense in answer
to all the new issues of facts alleged in the defendant’s statement of defense.
Pleadings does not only apply to a plaint and a statement of defence as above but
equally refers to all other modes of instituting a suit and documents filed in court to
that effect.
Literally, any document filed in court in indication for trial purposes forms the subject
of pleadings.
Pleadings is defined under Section 2 of the civil Procedure Act to include any petition
or summons and also includes the statement in writing of the claim or demand of any
Plaintiff, and of the Defence of any defendant to them and the Reply of the Plaintiff to
any Defence or Counterclaim of a Defendant.
DOCUMETS WITHIN THE WIDER DEFINITION OF PLEADINGS UDER THE ACT1
1. The Plaint
2. Written Statement of Defense
3. Counterclaim
4. Notice of Preliminary Objection
5. Grounds of objection
6. Reply to Defense and Defense to Counter Claim
7. Cross action
8. Petition
9. Originating Summons

1
Section 2 of the Civil Procedure Act Cap 71.

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 10. Notice of Motion
11. Chamber Summons
12. Affidavit in Reply. etc
The above is echoed in the Odger’s Principles of Pleadings and Practice2, which
literally confirms the definition in the above provision by defining Pleadings to mean
statements in writing, served by each party alternately on his opponent, stating what
his contention will be at the trial, and giving all such details as his opponent needs to
know to enable him prepare his case in answer.
Based on the above therefore, the Plaintiff will initiate the pleadings by filing his Plaint
in court and having the same served upon the Defendant in strict compliance with the
provisions of the law as to time of service, mode of service, who to serve etc.
Upon service of the said plaint (Pleadings) upon the defendant, the Defendant will be
expected to file his statement of Defense.
The said defense filed by the Defendant should be in answer to the Plaint served upon
him/her and in this sense, the defendant is expected to answer to each and every
allegation by the Plaintiff in the Plaint.
In practice, the Defendant is required to answer to each and every Para. In the Plaint
by either confirming or disputing the allegations stated therein.
In drafting the said statement of Defence, care should be taken by the Defendant not
to generally answer to the Plaintiffs allegations or by autright denial without giving
an explanations in facts disproving the facts developed by the Plaintiff’s Plaint.
The said defence should be in numbered paragraphs in answer to each paragraph in
the Plaintiff’s Plaint.
To note however that any paragraph in the Plaintiff’s Plaint that is not answered will
be presumed to have been admitted and the Plaintiff can always move court at the
opportune time for judgment to the extent of the implicit admission, this however
depends on the facts in the said plaint that have not been disputed and the extent of
it’s applicability to the case in point.
In pleadings filed in court, parties must ensure that the same raises definite issues to
enable court move to the next stage of hearing the same. Failure to this may force the
other party move court for necessary orders depending on the mistake by the
respective party in the proceedings.
Nothing equally stops the court from exercising it’s inherent powers and reacting to
the pleadings before it the moment it discovers that a particular pleading filed in court
is headless and unsupported, upon discovery that the same is a fishing expedition and
calculatedly filed to waste courts time; an abuse of court process.

2
20th edition Page 11.

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Upon being served with the Statement of Defense, the Plaintiff is required to file a
reply to the Defendant’s statement of defense, failure to do so presupposes an
admission to any new facts in issue introduced by the Defendant in relation to the case
in point ; nothing in this case will stop the defendant from moving court for necessary
orders as a result of the said failure to reply to his statement of defense as served upon
the Plaintiff.
In the said Reply, the Plaintiff is equally required to answer to each and every
allegation as raised by the Defendant in his Statement of Defense and whichever
allegation is not answered, it will be presumed the same has been admitted by the
Plaintiff to warrant the Defendant moving court for necessary orders as above.
In the said reply by the Plaintiff, he/she is expected to answer to each and every
paragraph in the Defence and if any allegation has already been mentioned and
covered in his Plaint, the Plaintiff will be quoting the relevant Para. In his Plaint in an
attempt to answer to the issues brought forward by the Defendant in his statement of
defence.
Altogether the Plaintiff will conclude by requesting court to agree with his arguments
in the reply to defence and request court to have the Defendant’s statement of defense
and allegations therein be struck out or dismissed depending with the circumstances.
With the above therefore it can be deduced that the pleadings are aimed at
ascertaining the matters on which the parties differ and those on which they agree and
is upon the same that the court can be able to determine which issues need proceed
for hearing and determination with judgment being entered to the extent of the
admissions by the respective parties if need be.
Therefore, a person who wants to contest the other’s case can therefore do so through;
1. Denying the whole or some parts in the pleadings so served. Also called
traversing an opponent’s allegation.
2. He may allege facts which go to the extent of destroying the facts in the Plaint.
He may plead other facts but argue the Plaintiff to be the one in default
(Confession and avoidance).
3. A demurrer-Means pleading a point in law.E.g Resjudicata, Subjudice, larches
etc. or equally bring to the information of the court of other facts characterised
to destroy the Plaintiff’s case.
In the Pleadings before court as discussed above, it can be deduced that parties
filing their pleadings in court must be carefully not to plead the law but rather
plead the facts material to the case before court.
This was the reasoning in the case of Shaw Vs Shaw (1954)2 QB 429, 441.
DENYING THE WHOLE OR SOME PARTS IN THE PLEADINGS SO SERVED. ALSO
CALLED TRAVERSING AN OPPONENT’S ALLEGATION.

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This has been discussed in the above context whereby upon being served with the
Pleadings, the defendant can answer the same by responding to each paragraph in the
Plaint served upon him, to this, the defendant will facts to each particular answer he
gives in response to the respective paragraph as opposed to denying generally. He
needs to give specific facts in contrast with what has been alleged by the Plaintiff in
his Plaint; the same is done paragraph by paragraph up to the last item in the
Plaintiff’s Plaint.
In an event the Defendants agrees to a particular paragraph, the same should clearly
be indicated in his response to the respective paragraph.
The Defendant can however agree to a respective paragraph and go further to shed
more light to the same in the said agreed facts by introducing what the plaintiff
seemingly left out; the same will assist court easily understand the connection of the
Plaintiff and the Defendant and easy understanding of the pleadings before court as
filed by the respective parties further to the ‘behind the scene’ engagements between
the Plaintiff and the Defendant.
However, it is a general principle of law that what has not been denied by the
Defendant is presumed to be admitted and the Plaintiff, depending with the
admission, can move court for judgment to be entered to the extent of the admission
thus reducing the issues to be determined by the court.
The Plaintiff can equally move court in an application to have the defendant’s
statement of defence be struck out if it does not merit the thresholds as discussed in
the above context.
WHAT ACCOMPANIES PLEADINGS?
The answer to the above question lies in the provisions of Order 6 r 2 of the Civil
Procedure Rules which states that every Pleadings shall be accompanied by a brief
summary of evidence to be adduced, a list of witnesses, a list of Documents and a List
of authorities to be relied on except that an additional list of authorities may be
provided at a later stage but with leave of Court.
The above rule is preceded by a very important provision under rule 1 that states that
every pleadings filed in court need to state material facts; the pleadings should contain
material facts with which the party pleading relies upon for a claim or defense.
Sub rule 2 of rule 1 above further states that pleadings are required to be divided into
paragraphs, numbered consecutively, and dates, sums and the numbers shall be
expressed in figures.
PARTICULARS IN PLEADINGS.
For pleadings to be termed as being concise, the same must contain particulars, the
same help summarise the cause of action developed to enable the court and other
parties follow along ones grievances.

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The said particulars give life to the pleadings and give a road through with the court
is to follow in the ascertainment and confirmation of the cause of action developed in
the case.
The above is as per the provision of Order 6 r 3 of the Civil Procedure Rules.
The above forms the reasoning by the court in the case of Bisutti Vs Busoga District
Administration3
Where the court held that the function of particulars was basically to carry into
operation the overriding principle that litigation between the parties and particularly
the trial should be conducted fairly, openly and without surprise. They serve to inform
the other side of the nature of the case they have to meet as distinguished from the
mode in which the case is to be proved, to enable the other side to know what evidence
they ought to be prepared with and to prepare for trial and prevent the other side from
being taken by surprise.
further to the above, in the event a party is not convinced with the pleadings served
upon him/her even upon the filing of his statement of defense, the said defendant can
always engage the plaintiff before the hearing of the case.
For clarity of the pleadings and documents therein annexed, a party can always move
court for Discovery, Inspection and interrogatories all in preparations for the hearing
of the main suit before court.
It is to the above that a case can actually be determined way before the hearing of the
same or equally reduce the issues to be determined at the main hearing further to
entering a consent judgment where necessary and upon consensus by the litigants
before court.
FORMAL REQUIREMETS OF PLEADINGS;
In furtherance to the above discussed requirements including particulars, there are
several formal requirements with which pleadings must comply.
They basically include a structure in which each pleading drafted must conform to
failure to which the said pleadings will be dismissed by the court at the earliest
opportune time.
However still, it always depends with the extent of damage seen in ones pleadings
because in some instances, pleadings may be amended to cure a small defect in them
as shall be discussed in another context of this topic.
To however quickly note is that amendment of pleadings has a limit; there are some
components or defects in ones pleadings that can never be amended and the cure is
just to strike off or dismiss the entire suit depending with the damages.

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Every pleading therefore should contain;
1. Heading and title
This is basically the upper top parts of ones pleadings that introduces the pleadings
to the court by indicating the Country (The Republic of Uganda), the type of the
court (eg In the High Court of Uganda at Kampala), the type of the case and case
number (e.g Civil suit no.12345 of 2021).
The title is basically the Parties before court (e.g Plaintiff(s) and Defendant(s),
petitioner (s) and Respondent(s) etc) and the nature of the case (e.g Plaint, Petition
etc). The same can either be natural persons or artificial persons and the same
should clearly be distinguished.
Care should be placed in stating the titles of the parties before court considering if
one wrongly writes the name of the Defendant or respondent, the pleadings may
be struck out , depending with the nature of the error committed.
However, there can always be a room for amendment of the said pleadings and
correcting the said name error but in the end one may be condemned to pay costs to
the other who at this juncture may have opposed the pleadings as defective. The said
seems to be a creature under Article 126(2)(e) which arguably has in some instances
been abused by litigants and even the courts.
To date, there is still a debate of what really constitutes the subject of Article 126(2)(e)
for indeed the constitution has purposely left the same for common sense in trying to
construct that which ought to fall therein.
2. Description of Parties.
The Pleadings should not only indicate the parties but move to the subsequent
paragraphs and describe each party as therein indicated in a more clarity way but
limited to the Pleadings beforehand and case before court.
At this stage, the plaintiff for instant will only need to describe the Defendant to the
extent of his/her knowledge and it is the duty of the defendant upon service to file his
statement of defense and provide more details relating to his particulars and to the
extreme the nature of the subsequent pleadings if and when served upon him/her.It
is at this stage that most defendants appoint advocates and provide the addresses of
the said advocate for future service of pleadings.
In this sense, they will enter appearance or file their statement of Defense or both upon
first appointing an advocate to act for them in the said proceedings.
3. Description of Pleadings
This is basically found below the heading and title of parties.

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 It is where the litigant indicates the nature of the document being filed in court and
in this case it can be, Plaint, Written statement of Defense, Counter Claim, and
Affidavit in Reply etc.
In an event where the defendant has filed his statement of Defense and
counterclaim4, the Plaintiff is expected to file his reply to the defense and further
filed a defense to counterclaim.
Failure to file a defense to counterclaim will imply that the Defendant’s
counterclaim is unopposed and at the opportune time the Defendant can always
move court for judgement be entered to the extent of the prayers in the
counterclaim.
4. Paragraphs, figures and Signatures.
When necessary, the pleadings ought to be divided into paragraphs and the said
paragraphs should be clear and consistent.
The paragraphs should equally be numbered concisely in a bid to develop the facts
around the said pleadings and equally the development of the cause of action
which as discussed in the first topic of this semester, it is the heart of pleadings;
lack of which the pleadings will be dead on arrival.
It is important to state at this stage that in the development of the said case, a party
is not required to plead the law, he needs not go to the extent of discussing the law
surrounding the facts but rather leave the same for the hearing and submissions.
Under submissions, he will marry the facts and the law and give his position in a
bid to convince the court to follow his/her arguments.
In the Pleadings before court, dates, sums and other numbers must be expressed
in figures and not words as prescribed in the provisions under O.6(1) of the Rules.5
Parties should equally endeavour to assign the Pleadings to be filed in court,
signing is very paramount as it commands ownership and legality of the Pleadings
filed in court.
In an event a litigant is represented, the same should be signed by his advocates.
Where he is acting in person; the pleadings should bear the signature of the
litigant.
Further to the above, a party should endeavour to sign any other document to
accompany the pleadings before court if and when required.This revolves around
witness statements, Affidavits etc. On the subject of Affidavits, they should not
only be signed but should equally be commissioned by a commissioner of oath in

4
A counterclaim is a Plaint in itself, in this case it is argued that the Defendant has defended the case and sued
the Plaintiff in his own case.Just like the original plaintiff wants prayers in his plaint, the Defendant who now is
the plaintiff through his counterclaim wants prayers specifically pleaded in his defense.
5
Civil Procedure Rules

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 the manner prescribed by the Act.6 As shall further be discussed in the class of
Affidavits.
Signing of pleadings cuts across, it equally applies to Defendants or Respondents
to a suit; they must equally own the documents filed in court and failure to which
the same shall be expunged from the court record.
5. Date and Endorsement.
The Pleadings must finally be dated and equally indicate the place where the same
was drafted.
The pleadings should be endorsed with the name of the firm and further indicate
the address of the advocates who drafted the pleadings further the Place and the
street where the said firm is located; this is for ease of the location by the other
party who may want to locate the said firm for service purposes or any other
engagement.
Further to the above, it is prudent for the advocates to equally indicate the office
Phone Numbers and email addresses for quick communications and
correspondences if need be.
WHAT ARE MATERIAL FACTS?
As briefly discussed in the above context under the Provisions of O.6 (1) of the
rules, it can be deduced that;
1. Every pleadings must state material facts only;
2. Every Pleadings must state all material facts;
3. Every Pleadings must state material facts but not the evidence to prove the
facts;
4. Every pleadings must state the material facts and not the law; and
5. Every pleadings must state the material facts in a summary form.
In trying to plead material facts, a litigant should understand that the court at this
juncture is interested in the history surrounding the case in point and not necessarily
the provisions of the law the same emanates from.
The trick is that at the development of ones pleadings, he or she should draft the same
and back in his mind he should draft the same well in mind of the legal provisions of
the law.
The pleadings should be so clear that any party reading the same will at the back of
his mind be ringing the very provision of the law the same is depicted from even
without mentioning the same.

6
Commissioner for Oath(Advocates) Act Cap.5.

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It is only after the hearing and the submission stages that a litigant will be required to
marry the law and the facts and bring to the attention of the court how he or she
suffered.
As discussed in the first topic to this semester, the cause of action must be developed
from the facts beforehand.
To remember is that not all facts constitutes a cause of action.
A litigant therefore should not plead argument and make conclusions in his pleadings
that can only be done during submissions in a bid to convince court to allow your
pleadings and prayers therein.
In the case of Phillips Vs Phillips7, Cotton LJ Stated that;
“the statement of claim, of necessity must set out all the facts material to prevent the
defendant being taken by surprise, because it is the first pleading and that which
ought to be referred to for the purpose of seeing whether there is a cause of action. In
my opinion, it is absolutely essential that the Pleadings not to be embarrassing to the
Defendants, should state those facts which will put the defendants on their guard
and tell them what they have to meet when the case comes for trial.”

What does the above para. Mean?

The above basically dictates that there should never be trial by ambush.
A Plaintiff can never draft his pleadings in piecemeal in a wait to see the kind of
defense the defendant will file them unleash ‘his winning card.’
This is what is referred to as fishing expedition and when the court notes the same,
any additional information or offending paragraphs in the reply to the defendants
defense will be expunged from the court records and in some instances strike out the
entire pleadings filed by the Plaintiff.
Therefore, in structuring his plaint, the plaintiff ought to bring to the attention of the
court and the Defendant all the material facts surrounding his cause of action before
the Defendant replies to the same.
In his reply to the statement of Defence, the plaintiff will only be addressing the new
information brought in the statement of defense and shading more lights while
opposing the same.
PRAYERS IN A PLAINT.
At the culmination of his plaint or any other pleading before court and having
preceded the same with development of the cause of action and particulars thereto,

7
(1878)4 QB 127 at 133

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the Plaintiff will pen up by specifying the prayers he needs be awarded by the court
upon consideration of his case.
The prayers pleaded in the Plaint can be;
1. Permanent Injunctions restraining the Defendant, his agent, servant or any
other person acting under his authority from entering, remaining into or doing
any other act to defeat the Plaintiff’s land under Land Parcel no.
Fortportal/Fortportal/Block 1/201;
2. Declaration that Land Parcel no. Fortportal/Fortportal/Block 1/201 belongs to
the Plaintiff;
3. Cancellation of the Defendants title deed purportedly obtained under Land
Parcel no. Fortportal/Fortportal/Block 1/201;
4. Eviction Orders;
5. Special damages to a tune of USH. 100,000,000.00/-
6. General Damages;
7. Costs and interest of the Suit;
8. Any other order that the court may deem to grant.
The prayers in the Plaint must be properly drafted and the same should easily be
constructed from the cause of action developed in the case.
Care should therefore be put to ensure all the necessary prayers are indicated in the
Pleadings.
It is actually safe to “over pray” in your pleadings that stating few prayers only to
remember after the judgment you did not pray for a specific order which was very
pivotal for your pleadings.
At this stage, it is important to note that the court can never give a litigant prayers he
never sought for.
DOES THE PRAYER OF “ANY OTHER ORDER THAT THE COURT MAY
DEEM TO GRANT” HAVE ANY LEGAL SIGNIFICANCE.
Most judges have termed this prayer as “a smile for the Camera Prayer” which is
useless to the pleadings beforehand and especially when one wants to ride on the
same to “fix and condemn the Court” for failure to “read outside the box” and award
“Any other order that the court may deem to grant”.
Other litigants have gone to an extent of making an application for review with a hope
of persuading court to award “Any other order that the court may deem to grant”.
The court have however given a clear position on this subject to the effect that;
In the Court of Appeal case of; CALTEX OIL (KENYA) LIMITED V RONO LIMITED [2016]
EKLR; Martha Karambu Koome, Mohammed Abdullahi Warsame, Fatuma sichale JJ.A
stated;

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” In the plaint, we have noted that the respondent never claimed to have suffered any damage
as a result of the appellant’s breach. In the circumstances, having not made a claim for general
damages, there cannot be a basis for awarding the same. The court has no inherent
jurisdiction to award damages whether separate or in addition to specific performance where
no such plea was made in its pleadings. Damages cannot be plucked from the air simply
because a party alleges to have suffered an injury or loss. Damages must be pleaded so that
the other party can reply through the defence. That is not what happened in this matter. It
was not right for the trial court to purport to engage in an exercise in futility. No matter how
many times it is canvassed before court, the respondent is not entitled to damages and the
court has no basis to grant the same. To find otherwise would amount to the court exercising
a power it does not have and rendering decisions without any parameters or borders which
would lead to total disorder and abuse of the judicial process. It would also be a recipe for
the formation of public anger against the judiciary. The fundamental question is whether the
respondent made a specific prayer in its plaint. The answer is in the negative, since the prayer
was in the alternative. A prayer for damages must be specifically pleaded and particularized
because the claimant has suffered as a result of the wrong that is complained of. There was
no justification for a court to award damages for an alternative prayer as couched above.”

SO, HOW DO WE DETRRMINE THE MODE OF INSTITUTION OF A SUIT?

The above question is answered by the Provision of O.4 of the Civil Procedure Rules
that requires all suits to be instituted by a Plaint.
To quickly note however is that O.4 should not be interpreted literally.A keen
interpretation of O.4 would mean that all suits are to be instituted by a Plaint UNLESS
THE LAW PROVIDES OTHERVISE DEPENDING ON THE SUIT ONE WANTS TO
FILE.
The above extension explains the reason why suits can be instituted vide a petition,
Originating Summons and equally under Judicial Review or any other mode specified
by the relevant statutes.
For purposes of a Plaint, O.4 Should be read together with O.6&7 and the same be
distinguished from the Provisions under O.36 for specially endorsed Plaints.

AMENDMENT OF PLEADINGS.
Amendment of pleadings basically means correcting the pleadings already on record
by either striking out some parts (it can be offending parts) by cancelling with a Pen
across the said parts (Red Pen for 1st Amendment and other inks preferably blue on
subsequent Amendents) or/and including some parts by typing the said inclusion
and underlining the same, with an aim of further building up the pleadings before
court.

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Amendments can be entertained at any stage of the proceedings 8 but care should be
put not to put amendments aimed at frustrating a parties pleadings before court filed
in opposition or answer to your pleadings on record.
As we discuss the subject of amendments, it is important to note at this stage that
amended Pleadings can be filed without leave of court9 and those filed with leave of
court.10
RULES RELATING TO AMENDMENT OF PLEADINGS.
As discussed above, amendments can be brought at any stage of the Proceedings but
litigants are however advised to bring the same at the earliest opportune time lest they
are condemned to pay costs to the other side.
Amendment of pleadings should however be discouraged and parties encouraged to
file their pleadings in the right manner and with the right contents to avoid
unnecessary amendments that go all the way to delaying litigation.
It is a general principle of law that litigation must come to an end reason why the
aspect of amendments is normally pegged on the discretion of the court especially
when the sae is brought in the middle of the proceedings and the court notes the same
has no substance and aimed at wasting the courts time and further delaying the
already late case.11
There however comes some instances where amendment is inevitable, most especially
in instances where a litigant has died and another party having obtained letters of
administration ad litem intends to come on board to substitute the deceased party
with himself.
WHEN CAN A PLAINTIFF AMEND HIS PLAINT?
A Plaintiff can amend his Plaint with or without leave of Court.12
Upon filing his Pleadings and whether or not he has served the same upon the
Defendant, and whether or not the Defendant has filed his statement of Defense, a
Plaintiff can still amend his Plaint without leave of court if the same is filed within 21
days from the issue of the Summons to file a Defense. In an event the Defendant has
already filed his statement of Defense, then the Plaintiff can amend his Plaint 14 days
after the filing of the written statement of defence or the last of such written
statements.

8
O.6 r 19 of the CPR
9
O.6 r 20&21 of the CPR.
10
Supra Note 8.
11
Judges are required to adjudicate upon matters and have them disposed off in the shortest time possible,
delay in this case is an injustice to the parties before court.
12
Rule 20 Supra note 9.

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The above was well reasoned in the case of In Nakiryowa Majorine Kiddu & Anor,
versus Maurice Sserugo Kiddu & Anor 13 where the learned judge noted that;

…it is now clear that the Plaintiffs made the amendment outside the 14 days from
filing of the written statement of defence as permitted to them by O.6 r20 of the
Civil Procedure Rules and without leave of Court.
The Court in the above case went further to note that the said amendments were
Improper.
To however note is that some courts have gone ahead to interpret the above delay
quoted in the case of Nakiryowa Majorine Kiddu & Anor, versus Maurice Sserugo
Kiddu & Anor14 to be a subject of a ‘case by case basis’ and in some cases termed as a
procedural hitch and the need to look at a bigger picture thus envelope the same under
Article 126 2(e)…but still gone ahead to award the other side some costs due to the
mistake occasioned by the party filing the said amended Plaint…this is mostly
whereby the other side has raised the same or equally filed pleadings in court in
objection to the lately filed amended pleadings.
This subject however is never conclusive and as said, it is normally a subject of a
selected pocket cases to which the court would need to invoke the Provisions of
Section 98 of the Civil Procedure Act15 and section 33 of the Judicature Act16
The Practice has equally been adopted by Advocates whereby an advocate, upon
knowledge of filing his amended pleading outside the stipulated time, will ‘shoot’ up
and argue on his feet, tactfully before the other side addresses court, thus;
“May it please your Lordship, on record is our amended Plaint dated….., I however note the
same is placed on record outside the stipulate time frame in the law,…I delayed by 1 day, I
equally note that the same was placed on record minus your leave my lordship, I however
pray the same be construed to be proper on record and your lordship adopts the same as it is,
just to save this courts time…the same does not prejudice the defendant who till now has not
filed any objection to the said Amended Plaint…”

WHEN CAN THE DEFENDANT AMEND HIS PLEADINGS WITHOUT LEAVE OF

COURT?
The answer to the above lies on the Provisions of Order 6 rule 21 of CPR where a
defendant who has set up any counterclaim or setoff may without leave amend the
counterclaim or setoff at any time within twenty-eight days of the filing of the

13
HCCS No.587 of 2015.
14
Ibid.
15
Cap.71
16
Cap 13.

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counterclaim or setoff, or, where the plaintiff files a written statement in reply to the
counterclaim or setoff, then within fourteen days from the filing of the written
statement in reply.

CAN AMENDMENTS BE DISSALOWED BY THE COURT?

The court is careful for litigants not to abuse its process in the name of amending it’s
pleadings.

As earlier noted, litigants are required to be very careful when filing their pleadings
as some amendments will not be allowed by the court.

Further to the above and whether or not the amendments are being sought for with or
without leave of court, the proposed amendments or the filed amendments can be
rejected and expunged from the court records (if already placed under O.6 r 20&21) if
the court discovers inter alia that the said amendment is actually an overhaul of the
entire Plaint earlier filed and that it has gone to the extent of changing the cause of
action17.

This is equally serious when the said amendments are projected to defeat the
Defendants statement of Defense or the Plaintiff’s Defense to Counterclaim.

As such the courts will disallow the said amendments and adopt the previous
pleadings as they are…the court will equally go to the extent of condemning the
Plaintiff to costs.

This is as per the Provisions of O.6 r 22 and the case of Buffalo Youngster Inc. V SGS
Uganda Ltd18.

HOW TO MAKE AN APPLICATION TO AMEND PLEADINGS.

Amendment of pleadings can be made orally or by a formal application through

Summons in Chambers.

ORAL APPLICATION.19

Under Oral application, an advocate or litigant will address court on his feet as
regards the subjects of amendment and the extent of the same.

Oral applications is basically the easiest and quickest but quick to note is that the same
must be aimed at addressing either typographical errors or simple mistakes in the
Pleadings that need not be addressed in a formal application which in essence will
waste courts time and expenses.

17
Edward Kabugho Sentongo Vs Bank of Baroda HCT00-CC-MA-0203 of 2007(Unreported), Coffee Marketing
Board Limited Vs Fred Kizito (1992-93) HCB 175 & Mulowoza&Brothers Vs N. Shah Ltd SCCA No.26/2010.
18
HCMA No.6/20212
19
DD Bawa Vs G.S Didar Singh [1961]E.A 282 at 283.

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In an oral application, the court will write down the particular areas of concerns as
dictated by a litigant and the court may make a ruling to the same allowing the said
amendment and in an event where a party is thereafter required to later on place his
amended Pleadings on record, the same should be placed on record and served to the
opposite party within the stipulated periods.

There however comes an instance where the court may adopt the few amendments
made and go straight to the main business of the day without the party amending
being required to file an amended Plaint…this is normally applicable in practice
where a word or two in one’s plaint/pleadings were misspelt or missing a digit, the
court in this sense can require a party to add the missing word with a pen and
countersign, the court will go ahead to note the same and equally direct the other side
to amend the same in the same order.

An example to the immediately above statement can be;

“May it Please your Ladyship, My name is ………my ladyship I wish to make an application
purpose of amending my Pleadings, it’s a simple application that with your directions we can
have it cleared here and now… I take note that I have misspelt the name of the 44th Defendant
ant instead of Soko Sadam, the Pleadings read Soko Sada, I have missed an ‘M’in his name,
the same does not prejudice the 44th Defendant, I note he has filed his statement of Defense
and if your ladyship could read the same you will discover the same is not an issue in his
defense…with your directions we could use a pen and insert letter “M” in the earlier order to
read Sadam and not Sada…” and then proceed with the business on the day which is the
hearing and I note all parties are present and ready to proceed…”

AMENDMENTS BY FORMAL APPLICATION.

This is basically covered under O.6 r 19 of the rules as read together with 0.31 of the
rules.

A party in this sense will be required to file a formal application in Court vide
Summons in Chambers, he will go ahead and have the same served upon the other
party who will be required to reply to the same mostly where he is in objection of the
said amendments.

In the said application, the party is expected to show court in his Affidavit in Support
why the said amendments are necessary and in this sense he/she is expected to annex
a draft amended pleadings that he intends to place of record upon being granted leave
to dos o.

The Respondent to the Application is expected to object to the said amendments

giving reasons as to why the same should not be allowed.

At this stage, the court may allow parties to file their submissions subsequent to a
ruling on the issue and will thus allow or disallow the said amendments.

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The same can equally be allowed with costs depending on the circumstances of the
case and the stage the same is sought.

WHAT HAPPENS WHEN A PARTY FAILS TO FILE HIS AMENDED PLAINT

WITHIN THE TIME FRAME IN THE ORDER?

This is provided for under O.6 r 25 of the CPR thus; If a party who has obtained an
order for leave to amend does not amend accordingly within the time limited for that
purpose by the order, or if no time is limited by the order then within fourteen days
from the date of the order, he or she shall not be permitted to amend after the
expiration of such limited time as aforesaid or the fourteen days, as the case may be,
unless the time is extended by the court.

In practice, the above is a common error and luckily the courts have always come to
speed to rescue the pleadings of a party most especially where they have filed the
same outside the time stipulated in the order so that instead of expunging the same, a
party will move court to adopt them as proper on record.
“…My Lady, I have filed my amended Plaint as per your order dated …..i have however
noted the same has been filed outside the 14 days ordered by this court, I have filed them on
the 18th day, my apologies, I was indisposed from the last day I was before you on the same
application, I pray the same be adopted as proper on record, the same does not prejudice the
Defendant…I seek your indulgence my lady”

FIRMS ACTIVITY.
Firm 1-2 (Combined) QUESTION PACKAGE.
1.a) Discuss the Law governing pleadings and amendment of Pleadings.
b) Prepare a case brief of the following precedents;
i).Reliable Trustees Limited vs George Semebyuya HCCS NO.601/92
II).Motorcare (U) Ltd Vs AG HCCS No.638/2005
III).Paineto Mubiru V UCB [1971] ULR 144
IV).Semakula& Co.Advocates Vs URA HCCS No.252/2011
v). Francis Drake Lubega Vs Barnabas Taremwa (2009)2HCB 44.
VI). Michael Richardson Vs RandBlair&Bomoko (U) ltd HCMA No.51/201
C). Using the Class Question of the respective groups (Day and Weekend) and the plaint
drafted by the respective firms and noting the same has already been filed in court; draft an
amended Plaint with an aim of bringing a one Jimreeves as the 2nd Defendant having come to
the knowledge that in the Defendant’s list of Document’s there exists a sale Agreement and a
Title deed all of which indicates Jimreeves as a co-owner of the said Land.

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N/B. Have the discussed and corrected version of the amended Plaint under item “C” copied
to your notes books.

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SUMMARY PROCEDURE.
Summary Procedure is provided for under O.36 of the CPR.
Proceeding under the above order should however be distinguished from proceeding
under an Ordinary Plaint filed under Order 4 , 6&7.
Under Summary Procedure and upon filing his suit and service of the same upon the
Defendant therein, the Defendant cannot file his Statement of Defense as would be
the Plaint filed under ordinary suit. The Defendant will be required to file a formal
application seeking leave to appear and defend the case. The said application is to be
filed within 10 days of service thereof.20
If the Defendant does not comply with the provisions as above, judgment will be
entered against him but subject to the Plaintiff’s compliance with rules of proper
service of processes and filing with the court an Affidavit of Service to confirm the
said service.
To however note is that the Defendant’s compliance with the above provision does
not necessarily mean that the matter will proceed for hearing. In the event the
Defendant files his application and fails to demonstrate that there exists triable issues
to warrant his defense, the court will dismiss the same and proceed to enter Judgment
in favour of the Plaintiff.
The best practice is the Defendant annex his draft Statement of Defence to his
application to enable the court evaluate the same as to whether it raises triable issues
that warrant an opportunity to Defend the case.
The Plaintiff will be required to respond to the Defendant’s application for leave and
in this case he/she can object to the same with reasons thereto, but majorly that the
defendant has not raised any triable issues in his application.
Where the defendant fails to comply with the above, the plaintiff need not call
witnesses for hearing. The Plaintiff will only need to confirm to the Court that service
of the court process was done in accordance with the law and judgment may be
entered by simply looking at the pleadings.
The courts are however careful in handling matters under Summary Procedure and
as such failure to comply by the Defendant can never be used as an excuse for the
courts to award the orders in pleadings which are Primafacie Defective and do not
conform with the Law. The Judicial officer is required to read through the Pleadings
filed before court and measure the merits in them. It will therefore not be a surprise if
a court denies the prayers sought for therein and go an extra mile in having witnesses
brought for hearing to confirm the contents of the evidence on record. This is in line
with the inherent powers of the Court under section 98 of the Civil Procedure Act.

20
O.36 Rule 3 of the Civil Procedure Rules.

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Summary Procedure is not applicable in instances where the Government is the
Defendant21.
Is the Provision of O.36 r (1) applicable to Magistrates Grade II?
By the wording of the above provisions of the Law, one would think the same applies
to High Court and all Magistrate Courts.
A proper look at the law however will lead to the understanding that the Summary
Procedure is not Applicable to Magistrates Grade II. The said Court is governed by
rules under Schedule III of the Magistrate Courts Act as was discussed in the case of;
Nakabango Cooperative Society Vs Livingstone Kyenga (1992) III KALR 137. In this
appeal; a magistrate grade II had entertained a summary suit to recover shs.460,000/=,
given judgment and issued execution proceedings.
Mpagi-Bahigeine J (as she then was) held that: The Civil Procedure rules which
provide for summary suits, are inapplicable in courts presided over by magistrates’
grades II and III; the applicable Rules are set out in schedule III of MCA. In essence,
the magistrate grade II lacked jurisdiction to entertain a summary suit as per the civil
procedure rules.
Suffice to therefore note that not all suits fall under summary Procedure, a suit must
comply with the Provisions of O.36 r 2 of the CPR for the same to be brought under
Summary Procedure.
Basically it should be a straight forward suit whereby the trial court will easily award
the prayers sought for if no defence is filed or if the defense filed does not raise any
triable issue.
Suits under Summary Procedure therefore include22,
1. Suits based on debts or liquidated demands in Money Payable by the
Defendant with or without Interests.
2. Suits for Recovery of Land with or without a claim for Rent or Mesne Profits,
by a Landlord against a Tenant.
Firms Activity.
Firm 3-4 (Combined)
1. Discuss the law Governing Summary Procedure in Uganda.
2. Prepare a case brief on the Following precedents;
i. Nakabango Cooperative Society Vs Livingstone Kyenga (1992)III KALR
II). Busingye&Co.Ltd vs Mayimuna Muye Amin HCMA 87/2011
III).Caltex Oil vs Kyobe (1988-90) HCB 141.

21
Rule 17(2) Government Proceedings (Civil Procedure) Rules SI 77-1.
22
O.36 r 2.

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c).Prepare a draft plaint under Summary Procedure showing all the ingredients that must be
proved in a Suit under the same.
N/B. Have the discussed and corrected version of the amended Plaint under item “C” copied
to your notes books.

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JUDGMENTS

Section 2 of CPA defines judgment to mean the statement given by the judge of the
grounds of a decree or order. In order for a judgment to be valid, it must be announced
by court of competent jurisdiction or a court that is properly constituted.

A judgment basically is the last activity of the court in indication of the conclusion of
Litigation.
It is generally the decision of a court regarding the rights and liabilities of parties in a
Legal Action or Proceedings of Parties. Judgment also generally provide the Court’s
explanation on why it has chosen to make a particular decision.
Generally, the court is considered as being functus officio once it has issues its
judgment in a respective matter or made a pronouncement over a Particular Matter.

The above however mostly applies when the Court has issued it’s decision based on
the merits of a case before it.

This subject should therefore be handled carefully bearing in mind that a party who
has been unable to participate in proceedings leading to a Judgment being entered
vide the matter proceeding exparte can always make an application to set aside
exparte judgment and when the court sits to listen to the said application, it can never
be said to be functus officio or more still the matter be said to be res judicate.

The Subject on functus officio and Resjudicata should therefore be carefully

understood not to defeat other provisions of the law to which an aggrieved party can
move the same court over the same subject matter moreso when the matter proceeded
exparte or an application for review.

A judgment of the Court therefore has biting effects and must be complied with.This
is as per the case of Re Howard Amani Little (2006) CACA No.32/2006. In another
case of Hadkinson vs Hadkinson [1952] 2 ALLER 267, it was held that failure to
comply with a judgment constitutes a contempt of court.

TYPES OF JUDGMENTS;
ORDINARY JUDGMENT

This literally refers to a judgment over a matter that proceeded on Merits with the
participation of all Parties.

The said judgment contains a brief introduction (not so necessary), brief facts, Legal
Issues and the resolution of the said issues by the Court.

This is with respect to the provisions of O.21 r 4 of the CPR which states that
judgments in defended suits shall contain a concise statement of the case, the points
for determination, the decision on the case and the reasons for the decision.

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Under O.21 r 5 of CPR, the court is required to state its decision on each issue. In the
case of Liberty Construction Co. Ltd vs RC Munyani & Co. Advocates 23, Madrama J
stated that in making judicial decisions there are certain guidelines to be followed. The
first guideline is provided for under O.5 of CPR, which deals with framing issues.
Issues arise when material proposition of law or fact is affirmed by one party and
denied by the other. As far as judicial decisions are concerned, judicial officers are also
guided by O.21 of CPR. Contents of a judgment are provided for under O.21 r 4 of
CPR which provides that judgments in defended suits shall contain a concise
statement of the case, the points for determination, the decision on the case and the
reasons for the decision. O.21 r 5 of CPR provides that the court shall state its decision
on each issue or controversy.

DEFAULT JUDGMENT;

This type of judgment is literally referred to as ‘over the Counter judgment’ since it is
obtained without trial.

Default Judgment is obtained whereby, a defendant has been served with a Plaint but
has failed to file his statement of Defence within the stipulated Period of time. It
applies mostly on cases of Liquidated Claims.24

It is the duty of the Registrar to enter Default Judgment.25

Under O.36 r 3 of CPR it provides, if a party commences proceedings by way of

summary procedure and the defendant fails to apply for leave to appear and defend
the suit within the period fixed in the summons, the plaintiff is entitled to a decree for
the sum claimed together with interest and costs against the defendant.

If the proceedings have been commenced by ordinary plaint and the defendant has
failed to file a defence as prescribed by O.9 r 1 of CPR, the plaintiff is required to file
an affidavit within the prescribed time under O.9 r 5 of CPR and the same will be
scrutinised by the court before an application for default Judgment is allowed.

In the case of Varley Alia vs Alionzi John26 Madrama held that O.9 r 5 of CPR is
mandatory in that it requires the affidavits to prove two things namely, service of
summons and failure of defendant to file a defence within the time prescribed. The
suit cannot proceed without an affidavit of service on the record as envisaged by O.9

23
HCMC No. 8/2011
24
0.9 r 6, the defendant may however seek leave of court to file his defence out of time most especially where
a default Judgment has not been entered. In practice however, a litigant may proceed place the same on
record and have the same adopted to be proper on record when the matter in next for mention, however the
court will have the discretion to adopt the same or have the same expunged from the records depending on
the circumstances of each and the stage at which the same has been placed on record. However, the court will
be very reluctant to issue default judgment when upon an application and upon the discovery that on record
there already exist the Statement of Defence by the defendant even if filed after the statutory period but
before the Plaintiff had moved court for default judgment.
25
0.50 r2 of the CPR
26
HCCS 157/2010

22 | P a g e
r 5 of CPR. Secondly, that interlocutory judgment cannot be entered unless there is
compliance with O.9 r 5 of CPR. In Uganda the requirement under O.9 r 5 of CPR to
file an affidavit of service upon the court record is mandatory requirement. Service of
summons under O.9 r 5 of CPR is also not satisfied by service of summons signed by
the registrar only. Certain items are meant to accompany the summons under O.5 r 2
of CPR. c. Under O.9 r 6 of CPR, it provides that where the plaintiff claims a liquidated
demand, the court may pass judgment for the sum claimed in the plaint together with
interests and costs.

Under Order 5 rule 7 of the CPR Where the plaint is drawn claiming a liquidated
demand and there are several defendants of whom one or more files a defence on or
before the day fixed in the summons, and another or others of them fail to file a
defence, the court may, subject to rule 5 of this Order, pass judgment as in rule 6 of
this Order against such as have not filed a defence, and execution may issue upon
such judgment and decree without prejudice to the plaintiff’s right to proceed with
the action against such as have filed a defence.

In the case of Concern Worldwide vs Mukasa27, Wolaya H J held that a default

judgment is entered where there is proof of service and the defendant has not filed a
defence within the specified time.

Under O.9 r 6 of CPR, where the plaint is for a liquidated demand, judgment will be
entered for the sums claimed.

INTERLOCUTORY JUDGMENTS:

This applies in cases where the plaintiff is claiming for pecuniary damages which are
not specific or ascertained and or detention of goods. If a defendant fails to file a
defence in such a case and the court confirms that the plaintiff has filed an affidavit of
service and the same is proper within provisions of O.9 r 5 of CPR the court may enter
an interlocutory judgment against the defendant and set down the suit for assessment
of damages and the value of the goods.28

Under O.9 r 8 of CPR, it provides that a final judgment and execution will issue in
respect of the amount found due by such assessment.

In the case of Lloyds Forex Bureau vs Securex Agencies (U) Ltd (2012) HCCS
No.358/2012, Madrama J held that O.9 r 8 of CPR deals with a claim or for detention
of goods with or without a claim for pecuniary damages.

A claim for pecuniary damages is not a claim for a sum certain in money. It is a claim
for damages which may be assessed. O.9 r 8 of CPR permits the court to enter

27
HC Civil Revision No.1/2013
28
Applicable where the Plaintiff has pleaded general damages, the same cannot be awarded unless the suit is
set for hearing for formal proof. However at this stage an Interlocutory Judgment has already been entered to
the extent of the Liquidated Claims Proved with a clear evidence on record.

23 | P a g e
interlocutory judgment against the defendant where there is claim for pecuniary
damages.

This is where the defendant fails to file a defence within the period prescribed in the
summons.

EXPARTE JUDGMENTS:

This is the judgment given after the suit has been heard exparte i.e without the
participation of the Defendant.

Under O.9 r 11(2) of CPR, it provides that where the time allowed for filing a defence
has expired and the defendant has failed to file his/her defence, the plaintiff may set
down the suit for hearing exparte.

However, as the case is set for hearing, the best practice is that the Plaintiff should
continue serving the Defendant with hearing notices and mention notices throught
the Proceedings and an affidavit of service filed to that effect. This helps give the
defendant a last chance to participate in the proceedings and in the event he appears
in court even without his Defense, the court will always give him audience and direct
him accordingly especially where he is not represented and does not know the
magnitude of the case beforehand.

The court does the above well in the know that after the Judgment and during
executions such defendant will always come to the court to challenge it’s decision and
have execution stayed and the matter be tried on Merits. However the courts at this
stage will always be guided by the annexed defense and weigh whether it raises any
material facts for the hearing.

In the case of Twine Amos vs Tamusuza James (2009) HCC revision No.11/2009, the
issue among others was whether the trial court properly entertained the respondent’s
suit exparte? Mulyagoja Irene J held that O.9 r 10 of CPR lays down the general rule
where no defence is filed. It provides that in all suits that are not specifically provided
for in O.9 of CPR, in case the defendant does not file a defence on or before the day
fixed, upon filing an affidavit of service of the summons upon the defendant, the suit
may proceed as if that party had filed a defence. The next step that should take place
in the suit is setting it down for hearing, i.e. if no judgment could be entered on the
whole claim without proof of it. In that regard O.9 r 11(1) of CPR applies for setting
down the suit for hearing. Notice of hearing of the suit is to be served on a party who
has filed a defence, not on one who has failed to file a defence as required by summons
issued to him/her. When he failed to file a defence, the defendant opened the door for
the plaintiff to proceed exparte in the suit which he did under the provisions of O.9 r
11(2) of CPR. O.9 r 11(2) of CPR does not require to give notice to a defendant who
has failed to file a defence. The suit proceeds exparte that is in absence of the other
party, the defendant.

24 | P a g e
Under O.9 r 20(1)(a) of CPR, it provides, where both parties to suit have filed their
pleadings but only the plaintiff appears and the defendant does not appear when the
suit is called for hearing, the court may order that hearing proceeds exparte if it is
satisfied that the summons or hearing notice was duly served.

JUDGMENT ON ADMISSION.

The same is entered upon an admission of a party to the facts in the Pleadings as
served upon him or her.

However, it should be noted that the facts may be admitted in part and denied in part,
as such judgment will be entered to the extent of the admission and execution can
equally proceed as the matter proceeds with the remaining facts not admitted.

This is as per the provisions of O.13 r 6 of CPR, it provides that any party may at any
stage of a suit, where an admission of facts has been made, either on the pleadings or
otherwise, apply to the court for such judgment or order as upon the admission
he/she may be entitled to without waiting for the determination of any other question
between the parties, and the court may upon the application make such order, or give
judgment, as the court may think just.

CONSENT JUDGMENT, COMPROMISES

Consent Judgment is provided for Under O.50 r 229 where parties can enter consent
with the effect of determining the matter before court.

The said consent as agreed between the parties will be registered with the Registra of
the Court and upon the said registration, it will be adopted as the order of the court
with the effect of determining the suit before court.

However, consent judgments are not automatic, the court may reject the same if it
discovers the same is illegal.

In other instances, the registra may cause the file be mentioned before the judge and
all the advocates required to attend with their clients purpose of cross examining the
Clients whether they are privy to the said consent.

This is most especially applicable where the court senses there is some sought of
connivance between the parties and the said consent is rooted to injure one party in
terms of how it is to be entered.

In Geoffrey Gateete & Anor vs William Kyobe30 Mulenga JSC held that there was
no legal support to a consent judgment where service was on one partner who then
submitted to the judgment to bind the other partners without their knowledge and
consent to the said consent Judgment.

29
Civil Procedure Rules
30
SCCA No.7/2005.

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COMPROMISE JUDGMENT is on the other hand provided for under O.25 r 6 of CPR
where the court will enter judgment to the extent of the compromise/agreement
entered.
The rule states that where it is proved to the satisfaction of the court that a suit has
been adjusted wholly or in part by any lawful agreement or compromise, or where the
defendant satisfies the plaintiff in respect of the whole or any part of the subject matter
of the suit, the court may, on the application of a party, order the agreement,
compromise or satisfaction to be recorded, and pass a decree in accordance with the
agreement, compromise or satisfaction so far as it relates to the suit.

The above was the position in the case of Bank of Baroda (U) Ltd vs Ataco Freight
Services Ltd31 , where Twinomujuni JA held that the elements of a compromise within
the meaning of O.26 r 6 of CR were (a) it must be lawful, (b) the parties must agree to
it, (c) it must relate to issue in the suit, (d) a decree must be passed in respect of the
same, and (e) it must be recorded.

Once a consent judgment is duly endorsed by court, it can only be challenged on any
of the grounds that would vitiate a valid contract. In the case of George William
Kateregga vs Commissioner Land Registration & Others (2013) HCMA No.347/2013,
Bashaija J defined a consent judgment from the Black’s law Dictionary (8th Edition) as
‘Consent Judgment-A judgment, the provisions and terms of which are settled and
agreed by the parties to the action’. ‘Agreed judgment’ which is analogous to ‘consent
judgment’ is also defined in the same dictionary as, a judgment entered on agreement
of the parties which receives the sanction of the court, and it constitutes a contract
between the parties to the agreement, operates as an adjudication between them and
when court gives the agreement its sanction, becomes a judgment of the court.

Firms Activity.
Firm 3-4 (Combined)
1.a) Using relevant authorities and decided cases, discuss the different types of Judgments and the
stage in which they arise.
b). Using the Class Question of the respective groups (Day and Weekend) and noting there was no
appearance on the part of the Defendant despite having been served with the Pleadings, discuss to
your Client the necessary step you will take to enable her get her land back.
c). Mr.Niyigaba has just been employed with the Judiciary as a research assistant to the Judge handling
the case in ‘b’ above; he has been forwarded the said file to prepare a detailed Judgment with the
matter having gone for hearing preceded by both sides filing all their documents. Proceed and prepare
the said draft Judgment as instructed.
d). assuming the Judgment under “C” above has been delivered, proceed and extract the Decree of
the Court as applied to by the Plaintiff’s advocates.
END.

31
SCCA No.45/2007.

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