LAW DEVELOPMENT CENTRE

DEPARTMENT OF POST GRADUATE

LEGAL STUDIES AND LEGAL AID

CIVIL LITIGATIGATION TEACHING MANUAL

LAW DEVELOPMENT CENTRE
Table of Contents
1.0 SUBJECT ONE: CIVIL LITIGATION.................................................................... 1
1.1 Introduction......................................................................................................1
1.2 Course Justification........................................................................................ 1
1.3 Aim of the course.............................................................................................1
1.4 Course Objectives........................................................................................... 1
2.0 INTRODUCTION................................................................................................... 2
3.0 CHAPTER ONE;................................................................................................... 2
MODULE ONE: PRE- ACTION PROCEDURES AND INSTITUTION OF CIVIL
SUITS.......................................................................................................................... 2
3.1 Introduction......................................................................................................2
3.2 Aims of the module..........................................................................................2
3.3 Learning outcomes..........................................................................................3
Outline of Content..................................................................................................3
3.5 Interview guide;................................................................................................3
3.5.1 Pre-action procedures..................................................................................3
3. 5.2- Alternatives to litigation.............................................................................6
3.5.3 The nature of ADR........................................................................................ 6
3.5.4 How ADR differs from other forms of dispute resolution.........................6
3.5.5 Advantages of ADR......................................................................................7
3.5.6 Disadvantages of ADR.................................................................................8
3.5.7 ADR is not appropriate for all cases...........................................................9
3.5.8 Types of ADR................................................................................................ 9
3.5.9 -Definition of a suit.....................................................................................13
3.6 Modes of institution of suits.........................................................................14
3.6.1 The process of institution of suits (E-filling);...........................................15
3.6.2 Issue and service of summons;................................................................16
3.6.3 Delivery and Transmission of summon for service...............................17
3.6.4 The effect of conducting concurrent criminal proceedings and civil
proceedings touching the same subject matter.............................................17
3.6.5 The rights of the parties whose pleadings have been served, at this
stage of the suit................................................................................................... 18
3.6.6 Relevant law to guide your research.........................................................19
4.0 CHAPTER TWO................................................................................................. 20
MODULE TWO: STEPS SUBSEQUENT TO INSTITUTION OF SUIT.....................20
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 4.1 Aims of the module........................................................................................20
4.2 Learning outcomes........................................................................................21
4.3 Outline of content..........................................................................................21
4.4 Defence and Counter claim;.........................................................................21
4.4.1 Computation of time...................................................................................22
4.4.2 Extending the time limit.............................................................................22
4.4.2 Types of defences.......................................................................................22
4.4.3 Defendant wishing to dispute the jurisdiction of the court...................24
4.4.5 Problematic summons:..............................................................................25
4.4.6 Drafting of the written statement of defence............................................25
4.4.7 Admissions O.13 CPR................................................................................26
4.4.8 Pleading a reply to the defence and defence to counter -claim; O.8 r 11,
18........................................................................................................................... 27
4.4.9 The rights of the parties whose pleadings have been served, at this
stage of the suit................................................................................................... 27
4.5 Summons for directions;..............................................................................29
4.5.1 When should summons for directions be taken out?.............................30
4.5.2 Court interpretation on the law on summons for directions...................30
4.5.3 Are there any exceptions to the above rule on abatement of a suit for
failure to take out summons for directions?.....................................................32
4.5.4. What solution/remedy is available to the plaintiff once a suit has been
dismissed for failure to take out summons for directions within 28 days?...33
4.5.5. Duty to consider all matters......................................................................33
4.5.6. Interlocutory applications heard when taking out summons for
directions;............................................................................................................ 33
4.5.8 Compliance with summons for directions................................................35
4.5.9 Default, Interlocutory and ex-parte judgments;.......................................35
5.0 DEFAULT JUDGMENTS.................................................................................... 35
5.0.1 Co-defendants.............................................................................................36
5.0.2 Judgement in default against Government..............................................37
5.0.3 Interlocutory judgements...........................................................................37
5.0.4. The general rule where no defence is filed..............................................37
5.0.5 Ex parte judgements...................................................................................38
5.0.6. Mixed claims...............................................................................................38
5.0.7. Setting aside ex-parte judgments............................................................38
5.0.8. Setting aside ex parte decrees.................................................................38
5.0.9 Discovery on oath, Production, inspection and interrogatories...........39
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 5.1.1 Inspection....................................................................................................43
5.1.2 Interrogatories.............................................................................................43
5.1.3. Reference List............................................................................................45
6.0 TERM TWO......................................................................................................... 46
CHAPTER THREE.................................................................................................... 46
MODULE THREE: INTERLOCUTORY APPLICATIONS AND HEARING CIVIL
SUITS........................................................................................................................ 46
6.1 Introduction....................................................................................................46
6.2 Aim of the subject..........................................................................................47
6.3 Learning outcomes:.......................................................................................47
6.4 Outline of Content..........................................................................................47
6.4.1 Intervention as counsel in an existing suit;.............................................48
6.4.2 Interlocutory applications;.........................................................................48
6.4.3 What type of injunction is appropriate?...................................................49
6.4.4 Temporary injunction.................................................................................49
Cases from which temporary injunctions can be handled are found in O.41r1
and 2 of the CPR..................................................................................................49
6.4.5. General principles of granting a temporary injunction..........................49
6.4.5 Variation/Discharge or setting aside an order for a temporary
injunction..............................................................................................................51
6.4.6 Interim orders..............................................................................................51
6.4.7 Extension of interim orders-Variation/Discharge of an interim orders. A
court order of the same can be obtained from court under section 98 of the
CPA....................................................................................................................... 52
6.4.8. Discharge may be on the following grounds..........................................52
6.4.9. Orders for contempt of court....................................................................52
6.5. Security for costs before judgement...........................................................57
6.5.2 Arrest and attachment before judgement.................................................58
6.5.3 Minimizing multiplicity of suits through;..................................................59
6.5.4 Scheduling conference..............................................................................60
6.5.5 Hearing of suits;..........................................................................................60
6.5.6 Burden of proof and standard of proof;....................................................61
6.5.7 Locus visits in land matters;.....................................................................61
6.5.8 Submissions (written and oral);..............................................................62
6.5.9 Contents of a ruling and a judgement.......................................................62
6.6. Recusal of judicial officers;.........................................................................62
6.6.1 Reference List.............................................................................................63
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7.0 MODULE FOUR: EXECUTION.......................................................................... 64
7.1 Introduction....................................................................................................64
7.2 Aim of the module..........................................................................................64
7.3 Learning outcomes:.......................................................................................65
7.4 Outline of content..........................................................................................65
7.4.1 Principles in the execution process;.........................................................65
7.4.2 Examination of judgement debtor.............................................................67
7.4.5 Objector proceedings.................................................................................69
7.4.6 Execution proceedings by or against the Government and its agencies;
............................................................................................................................... 69
7.4.7 Execution proceedings by and against Local Government Councils;...71
7.4.8 Garnishee proceedings;.............................................................................71
7.4.9 Self-executing orders;................................................................................74
7.5 Stay of execution...........................................................................................74
7.6 Reference List................................................................................................75
8.0 TERM THREE..................................................................................................... 76
8.1 MODULE FIVE: SPECIALISED PRACTICE IN CIVIL LITIGATION..............76
8.2 Introduction....................................................................................................76
8.3 Aim of the module..........................................................................................76
8.4 Learning outcomes:.......................................................................................76
8.4.1 ELECTION PETITIONS. We shall read both the PEA AND THE LGA......77
8.4.2 Post- election remedies procedures and documents..............................77
8.4.3 Locus to file a petition. ( students are advised to cross read the LGA )79
8.4.4 Grounds of an election petition;-...............................................................80
8.4.6 Filing of a petition.......................................................................................85
8.4.7 Trial of the election petition.......................................................................87
8.4.8 Evidence in Election Petitions...................................................................87
8.4.9 Powers of the court.................................................................................... 90
8.5. Right of Appeal............................................................................................. 90
8.5.1 Judicial review............................................................................................ 91
8.5.2 Factors to handle when handling an application for judicial review......92
8.5.3 Reasons to show that decision making body or officer did not follow
due process in reaching a decision and that, as a result, there was unfair and
unjust treatment...................................................................................................95
8.5.4 Hearing of applications for judicial review...............................................97
8.5.4 Reliefs / prayers..........................................................................................97

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 8.5.5 Constitutional interpretation....................................................................100
8.5.6 Who may petition the constitutional court.............................................100
8.5.7 Procedure of a constitutional petition....................................................100
8.5.8 Rule 5 provides for Service of the petition.............................................101
8.5.9 Rule 8 and 9 provides for the place and time of trial.............................102
8.6. 5 Rule 10 provides for an expeditious hearing........................................102
8.6.1 Rule 12 provides for the evidence at trial...............................................102
8.6.2 Rule 14 provides for the death of petitioner...........................................102
8.6.3 Rule 15provides for the death of respondent.........................................102
8.6.4 Rule 16 provides for the withdrawal of the petition...............................102
8.6.5 Rule 17 provides for Irregularities that can be raised as an objection.
.............................................................................................................................103
8.6.6 Enforcement of fundamental rights and freedoms................................103
8.7 Reference List..............................................................................................103
9.0 MODULE SIX: POST JUDGEMENT REMEDIES............................................. 105
8.1 Introduction..................................................................................................105
8.2 Aim of the module........................................................................................105
8.3 Learning outcomes:.....................................................................................106
8.4 Outline of content........................................................................................106
8.4.1 Principles in applications for - Review,..................................................106
8.4.2 Revision.....................................................................................................109
8.4.3 Amendment of judgments, decrees and orders,( slip rule ).................110
8.4.4 Appeals......................................................................................................110
8.5 Reference List..............................................................................................114

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1.0 SUBJECT ONE: CIVIL LITIGATION
1.1 Introduction

Civil Litigation is a core subject on the Bar Course focusing on developing various
skills needed in the process of conducting a trial and out of court settlements in civil
actions. In particular the subject focuses on skills to manage pre-action, institution of
suit procedures, hearing of civil suits, as well as specialised practice and appeals’
procedures. At each of these mentioned stages, appropriate legal advice will be
tendered and necessary documents drafted. By the end of the course, a student
should be sufficiently equipped with the requirements for the current/prevailing
labour market as a day one Advocate.

1.2 Course Justification

Civil Litigation skills are essential to students’ preparation to become

advocates. The course will develop their knowledge, skills and values necessary in
conducting civil trials and out of court settlements. These essentials are sufficient to
equip a student with the requirements for the current/prevailing labour market as a
day one Advocate.

1.3 Aim of the course

The aim of this course is to;

1. Develop ability to advise clients on the settlement of civil disputes in and out
of court;
2. Develop ability to represent clients in resolution of civil disputes;
3. Develop ability to recognise ethical issues relating to resolution of civil
disputes.

1.4 Course Objectives

By the end of the course, students should be able to;

1. Explain mechanisms of resolution of civil disputes;

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 2. Prosecute civil matters in Courts of law and tribunals;
3. Draft appropriate documents in civil litigation;
4. Recognise and deal with ethical issues in civil litigation

2.0 INTRODUCTION

This manual is a study guide for students who are pursuing the Post Graduate
Diploma in Legal Practice of the Law Development Centre. It consists of six
chapters. Chapter I covers pre- action procedures and institution of civil suits,
Chapter 2 covers steps subsequent to institution of suit, Chapter 3 covers
interlocutory applications and hearing civil suits, Chapter 4 covers execution,
Chapter 5 covers specialised practice in civil litigation and Chapter 6 covers post
judgement remedies.

TERM ONE

3.0 CHAPTER ONE;

MODULE ONE: PRE- ACTION PROCEDURES AND INSTITUTION OF CIVIL

SUITS
3.1 Introduction

This module will expose students to interviewing of potential clients, formalising

instructions and institution of civil suits.

3.2 Aims of the module

The aim of this module is to;

1. Develop ability to take instructions in preparation for the institution of suits;

2. Develop ability to institute suits;
3. Recognise ethical issues relating to the institution of suits.

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3.3 Learning outcomes

By the end of this module, you will be able to:

1. Explain the options available to resolve the civil disputes;

2. Determine the appropriate action to be taken in resolving the civil disputes;
3. Illustrate the process of institution of suits;
4. Draft documents in relation to the institution of suits;
5. Recognise and deal with ethical issues relating to the institution of suits.

Outline of Content

1. Interview guide;
2. Alternative Dispute Resolution
3. Institution of suit;
4. Issue of summons;
5. Service of summons.

3.5 Interview guide;

An Advocate should always run through the

checklist/ interview guide every time he or
she opens a new file.

The Advocate at this stage will be gathering evidence and establishing the facts in
order to advise on viability of the facts. If any evidence or facts are overlooked,
incorrect decisions could be made a n d this could result in the case being lost or
costs being wasted.

At this stage, not all will be necessary in every case, but you should always run
through the checklist/ interview guide every time you open a new file.

3.5.1 Pre-action procedures

-Purpose of the first interview

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The first interview between the Advocate and client is very important from both
parties’ points of view. The client will be anxious that the Advocate appreciates
his problem, and will want to be assured that there is a satisfactory solution to
it. The client is likely to be concerned about the potential amount of legal costs
and will want some idea of the timescale involved. At the same time, the
Advocate needs to be able to extract relevant information from the client in
order to give preliminary advice on such issues as liability and quantum.
Therefore, the Advocate should always run through the checklist/ interview guide
every time you open a new file. Normally the check list used is O7r1 of the Civil
Procedure Rules.

At this stage, An Advocate will also need to bear in mind now, and at all times,
his professional obligations found in the Advocates (professional conduct)
Regulations. A detailed consideration of this area is contained in another
subject known as Professional Conduct and Ethics.

Summary of pre-action steps

(1) Check any professional conduct points:

– Conflict of interests
– Confidentiality
– Identity of client for money laundering regulation purposes.
(2) Identify the client’s objectives:
– Client’s needs
– Realistic solutions to resolve the Civil Dispute

(3) Identify and locate, if necessary, all potential parties.

(4) Check the financial viability of the defendant:

-Can the defendant pay the decretal sums and costs?

(5) Check jurisdiction:

– Pecuniary and Geographical Jurisdiction

- Relevant contractual clauses

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(6) Ascertain the limitation period:

-Comprehend the relevant contractual clauses

(7) Discuss and agree on instruction fees with the client:

– explain all options

(8) Collect and preserve evidence:

– required pre-action disclosur.

– Availability of credible witnesses.

– Expert reports

– Photograph evidence

-Pre-locus visits

(9) Carry out any necessary legal research.

(10) Do a case analysis:

– identify all potential causes of action

– identified all the legal issues

– identify the likelihood of success

– Additional evidence required

(11) Write letter of advice to client summarising analysis and advising on options.

(12) Explore possible methods of ADR.

(13) Comply with any approved pre-action protocol requirements or the

Practice Direction.

(14) Keep the client informed.

3.5.2 Alternatives to litigation

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There are several alternatives to court proceedings which may produce the
remedy the client wants, possibly at less cost. These alternative procedures
should always be considered at first interview a n d r e v i e w e d regularly.

Alternative dispute resolution

Alternative dispute resolution (ADR) is a means of resolving disputes by using an

independent third party to help the parties to reach a solution. The third party
may suggest a solution to the parties but cannot impose one. The decision to use
ADR is voluntary; the parties choose the process and either of them can
withdraw at any time before a settlement is reached. If either party does not like
the proposed solution, he does not have to accept it.

There are various types of ADR, such as mediation, expert appraisal or expert
determination.

Under the Civil Procedure Rules parties are encouraged to use some form of
ADR. see O. 12 r1 & 2.

Can a court order that parties must use an ADR method? No, a s s e e n u n d e r
O . 1 2 r 2 . A D R i s p a r t y c e n t r e d . It is voluntary and without prejudice.

3.5.3 The nature of ADR

Alternative dispute resolution (ADR) is a means of resolving disputes by using an

independent third party, who may help the parties to reach their own solution
but who cannot impose a solution. It is voluntary and without prejudice. The
parties choose the process, and either of them can withdraw at any time before
a solution is agreed. If either party does not like the proposed solution, he does
not have to accept it.

3.5.4 How ADR differs from other forms of dispute resolution

Save for suits filed under Order 35, Arbitration i s voluntary in the sense that the
parties voluntarily entered into an arbitration agreement. When a relevant
dispute arises, however, one party can force the other to arbitrate against his
will because of the original contractual agreement to do so, provided it is

6
enforceable. The arbitrator will impose a solution which the winner can enforce.
Of course, parties can always voluntarily take a dispute to arbitration. Strictly
speaking, arbitration is a form of ADR.

3.5.5 Advantages of ADR

Cheapness and speed

Apart from the fact that an independent third party may find it easier to lead the
parties to a settlement, A D R has many other a t t r a c t i o n s . It can be
significantly cheaper t h a n b o t h arbitration and litigation. This is because it is
quicker. A skilled neutral can, in most cases which are suitable for ADR, help the
parties to resolve their dispute in a relatively short period of time.

The parties do, of course, have to pay the third party for his services. They will
usually instruct lawyers to help them on the day, and they will have to pay
those lawyers. If ADR works, however, there will be a significant reduction i n the
amount o f time the lawyers spend in preparing and presenting the case. This will
save costs. Even more importantly, the client saves on the indirect costs involved
in its employees and executives having to spend time reading court documents,
consulting lawyers and attending court.

However, clients should not be given the impression that ADR comes at bargain
basement prices. Any lawyer representing the client will want to be fully prepared,
and that will take time (including the client’s time in dealing with the lawyer’s
enquiries) and will cost money.

Flexibility

Speed and cheapness are the principal attractions o f ADR, but it is also very
flexible. The parties can choose one of several forms of ADR. They can choose
the procedure to be followed in conjunction with their chosen neutral. They do
not have to comply with any statutes or rules of court. There is not even any
case law limiting what the parties or the neutral can do.

7
Preserving a business relationship

Arbitration and ADR share the virtue of privacy. Alternative dispute resolution is
also ideal for cases where the parties to the dispute are going to have to
continue to deal with each other. The fact that they have chosen a non-
confrontational method of solving their problem makes it much easier for them to
continue their relationship, since the solution is theirs and has not been imposed
upon them.

Commercial reality

A third party unconnected with the dispute may be able to assist the parties to
arrive at realistic and workable terms of settlement.

3.5.6 Disadvantages of ADR

It does not bind the parties to the procedure

As a general principle, no one can be forced to resolve a dispute by any form of

ADR against their wishes. If one party suggests ADR, the other parties do not
have to agree; and even if the parties have started to resolve a dispute by ADR,
most ADR agreements allow any party to withdraw at any stage before a solution
has been agreed. It will then be necessary to resort to litigation or, if there is an
arbitration agreement, to arbitration.

The court can stay litigation which has been commenced in breach of an agreed
method of resolving disputes. This is the case even if that method i s not
technically an arbitration agreement under the Arbitration Act 1996. Indeed, the
courts have increasingly stayed proceedings for ADR to take place, whether or
not pursuant to a contractual agreement. For example, in Cable & Wireless v IBM
UK Ltd [2002] BLR 89, the parties were directed to pursue a previously agreed
ADR method. The court held that there were strong case management grounds
for allowing the reference to ADR to proceed. Any delay was not such that it would
be unfair to impose the ADR procedure.

8
The facts may not be fully disclosed

The speed of ADR has an a s s o c i a t e d disadvantage . Because there i s no

e q u i v a l e n t o f disclosure, there is a risk that the parties may resolve the dispute
without knowing all the facts. This may lead to the wrong decision. Many
businessmen, however, take the view that a quick decision, even if it is not
completely accurate, is better than wasting time and money on a protracted
dispute in order to get a more correct decision. They often feel that litigation is
a lottery anyway.

3.5.7 ADR is not appropriate for all cases

Alternative dispute resolution is not appropriate in the following

cases:

(a) Where the client needs an injunction (though

afterwards ADR may become appropriate);

(b) Where there is no dispute. If the case is a simple debt

collection matter, the creditor should issue a claim form
followed by a summary judgment application or consider
insolvency proceedings.

3.5.8 Types of ADR

Arbitration

Arbitration i s an adjudication operating outside the normal court process, by

which a third party reaches a decision which is binding on the parties in dispute.
Many business contracts contain an arbitration clause requiring the parties to
refer their disputes to arbitration rather than litigation. In the absence of such a
clause, the parties in dispute may agree to arbitration once the dispute has
arisen, and may choose their own arbitrator with the relevant expertise. Arbitration
itself is largely governed by statute, namely the Arbitration Act 1996 (provided the
agreement to arbitrate is in writing).

9
The main advantages of the parties agreeing to arbitration instead of
litigation are that:

(a) Arbitration may be quicker than litigation;

(b) The procedures are less formal and occur in private;

(c) The solutions reached are often more practical than those a court
has power to order; and

(d) A t the same time those decisions are binding on the parties.

The winning party to an arbitration can apply to the High Court for permission to
enforce the arbitration award as if it were a court judgment (Arbitration Act 1996,
s 66).

On the other hand, the main disadvantages of using arbitration are that certain
remedies, such as injunctions, are not available and, depending on the
procedures adopted, the dispute may not receive the depth of investigation it
would have done in the courts. Further, it is not always necessarily cheaper than
litigation.

Negotiation

The simplest and most obvious way to settle a dispute is fot the parties to meet together, and
find a solution through negotiation. Negotiation is the preferred route in most disputes. The
advantages are of negotiation are,

 The negotiation option is always available and the said negotiation can take place at
any time during the dispute or before a dispute has formally arisen.
 It is confidential
 It can be fast and is usually cheaper than the alternatives
 It allows for the preservation of relationships
 The rage of solutions available to the parties is unlimited
 The parties have full control of the process and the outcome, subject to only what they
are able to agree.

Mediation and conciliation

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Mediation and conciliation are usually interchangeable terms. For ease of
reference, the term ‘mediation’ will be used to cover both processes in this
chapter.

In a typical mediation, the third party who has been selected as mediator will
have received written statements from both parties. Following that, the mediator
will discuss the case with the parties. They will tell him what they think about
each party’s case on a without prejudice basis. The mediator will not pass on to
the other party information which is confidential, unless he is given permission to
do so.

These discussions help the mediator to identify the real areas of disagreement
and the points which are most important to the respective parties. He can then
move the parties towards constructive solutions to the problem.

The method of mediation described above assumes that the mediator and the
parties will meet in the same building. This enables things to be dealt with
quickly because, if necessary, the parties can meet face to face to iron out their
differences. There are, however, other forms of mediation. The parties do not
have to meet. The matter can be dealt with by correspondence and telephone
conversations.

It is vital that the parties are represented at the mediation by people who have
authority to instruct their lawyers to reach agreement.

‘Med-arb’

Under this form of ADR, the parties agree to submit their dispute to mediation
and that, if this does not work, they will refer the matter to arbitration. They may,
if they wish, use the person who has been acting as their mediator as their
arbitrator. This will save costs, because the arbitrator w i l l already know the
facts of the case. There is a risk, however, that during the mediation, he will
have become privy to confidential information belonging to one of the parties.
This would compromise h i s position as arbitrator, s o any agreement for ‘med-
arb’ should give either party the right to object to the mediator becoming the
arbitrator.
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‘Mini-trial’ or ‘structured settlement procedure’

Under this procedure, the parties appoint a neutral who will sit as chairman of a
tribunal composed of himself and a senior representative of each of the parties.
These representatives may not be immediately connected with the dispute and
should have authority to reach such compromise a s they see fit. They will then
hear and/or r e a d the cases of the two parties (sometimes with an expert), after
which they will negotiate with each other with the help of the independent
arbiter.

Expert appraisal

The parties can refer all or part of their dispute to an expert in the disputed
field for his opinion. His opinion is not binding on the parties but could
influence their approach to subsequent negotiations. It will be for the parties to
choose the appropriate procedure, which could even involve a short trial before
the expert makes his recommendation.

Expert determination

Expert determination is a halfway house between arbitration and ADR. As in

arbitration, the parties select an expert to decide the case for them. They agree
to accept his decision, and if one fails to do so, the other can sue for breach of
contract. The expert’s decision cannot, however, be enforced as a court order,
and he does not have the powers of an arbitrator under the Arbitration A c t
1996. Also, unlike an arbitrator, he can be sued in negligence by a party who
thinks his decision was wrong.

Final offer arbitration

The parties can instruct their chosen neutral that they will both make an offer of
the terms on which they will settle, and that he must choose one of those two
offers and no other solution. Neither party can afford to make an unrealistic
offer, because that will mean that the neutral will choose the opponent’s offer.
Thus, at least in theory, the offers are likely to be realistic.

Early neutral evaluation

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As its name suggests, this method allows the parties to instruct their chosen
neutral to make a preliminary a s s e s s m e n t of the facts at an early stage in the
dispute. Normally the parties submit w r i t t e n c a s e summaries a n d supporting
documents. The evaluator then makes a recommendation. This very often
helps the parties to negotiate a settlement ( or move to another ADR method),
avoiding the expense of litigation.

Should ADR fail, then the advocate will have to file a suit to resolve the civil dispute.

3.5.9 -Definition of a suit

Section 2 of the CPA defines a suit as all civil proceedings commenced in any
manner prescribed.

A suit is defined in

The case of Mityana Ginners Ltd vs. Public Health Officer, Kampala (1958) 1 EA
339 at 341 (East Africa Court of Appeal) posits a meaning to the term ‘suit’ as
defined in section 2 of the CPA. In that case the appellants had lodged an ‘appeal’
against a notice or directive issued upon them by a public health officer in the trial
court by way of ‘Notice of Motion Chamber Summons’. The operative words in that
‘appeal’ were ‘Let all parties concerned attend the judge ... when the court will be
moved on the hearing of an application ... that this Honourable Court be pleased to
set aside the notice ....’ In his judgment Briggs VP, citing Mansion House Ltd vs.
Wilkinson (1954) 21 EACA 98 at 101, 102, re-stated the definition of the term ‘suit’
within the precincts of then section 2 of the Civil Procedure Ordinance, which is
identical to section 2(x) of the CPA as is, as follows:

“Accordingly a ‘suit’ is any civil proceeding commenced in any manner

prescribed by rules and forms made by the Rules Committee to regulate the
procedure of courts. ... I consider that ‘suit’ must for the purposes of these
proceedings have its precise and statutorily defined meaning

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3.6 Modes of institution of suits.

The modes are provided for by law. However if the law is silent, then the procedure will
be by Notice of motion as provided for under O.51 of the CPR

These can be,-

(i) Plaint brought under O. 4 read together with O. 7, O. 35 & 36 of the CPR ,
(ii) Notice of motion brought under O. 51 of the CPR ,
(iii) Originating summons O. 37,
(iv) Petitions ,
(v) Complaints on Oath
(vi) References under the Labour Disputes (Arbitration and Settlement) Act, 2006
and the Labour Disputes (Arbitration and Settlement) (Industrial Court
Procedure) Rules, 2012
(vii) Memorandum of claims – under the Labour Disputes (Arbitration and
Settlement) Act, 2006 and the Labour Disputes (Arbitration and Settlement)
(Industrial Court Procedure) Rules, 2012

By ordinary letter for example to the Chief Executive Officer of the Insurance
Regulatory Authority and the The Electricity ( Amendment) Act, 2022.
In dealing with Customer Complaints The Amendment Act inserts immediately after
Section 118 of the Principal Act, Section 118A that speaks to procedures for dealing
with customer complaints. The new section provides that a person aggrieved by a
decision or action of a licensee may apply to the licensee for redress. The licensee
must have established procedures for dealing with complaints from its consumers or
potential consumers of the licensee's service and these procedures must be
approved by the Authority before being published by the licensee in the manner
prescribed by the Authority.
This is a welcome addition compared to the provision in the Principal Act which
leaves customer complaints redress and appeals to the ERA and the Electricity
Disputes Tribunal. Customers can now have their grievances addressed at the grass
root level first before appealing to higher authorities.

The purpose of these modes was explained in Interfreight Forwarders (U) Ltd v
East African Development Bank SCCA 33/1993 Oder, JSC (RIP) stated that:-“A
party is expected and is bound to prove his case as alleged by him and as

14
covered in the issues framed. He will not be allowed to succeed on a case not
set up by him and be allowed at the trial to change his case or set up a case
inconsistent with what is alleged in his pleadings except by way of
amendment of pleadings”

Section 5 of the Civil Procedure Act further gives this court power to try all suits of
a civil nature except those which are expressly or impliedly barred by law.

Jurisdiction of Civil suits is thus dealt with under Sec 5 and 11 CPA.

Sec 14 of the judicature act provides for the unlimited original Jurisdiction of the High
Court.

Sec 17 of the Judicature Act, the High Court exercises the general powers of
supervision.

Sec 207of the Magistrates Courts Act Chapter 16 provides for the Civil
jurisdiction of Magistrates.
(1)Subject to this section and any other written law, the jurisdiction of magistrates
presiding over magistrates courts for the trial and determination of causes and
matters of a civil nature shall be as follows—

(a)a chief magistrate shall have jurisdiction where the value of the subject matter in
dispute does not exceed fifty million shillings and shall have unlimited jurisdiction in
disputes relating to conversion, damage to property or trespass

(b)a magistrate grade I shall have jurisdiction where the value of the subject matter
does not exceed twenty million shillings;

(c)a magistrate grade II shall have jurisdiction where the value of the subject matter
in dispute does not exceed five hundred thousand shillings; and(d).

(2)Notwithstanding subsection (1), where the cause or matter of a civil nature is

governed only by civil customary law, the jurisdiction of a chief magistrate and
a magistrate grade I shall be unlimited.

Further, in regard to the High Court granting remedies in matters brought before
it, Section 33 of the Judicature Act (supra) stipulates that;

15
 The High Court shall, in the exercise of the Jurisdiction vested in it by
the constitution, this Act or any written law, grant absolutely or on such
terms and conditions as it thinks Just, all such remedies as any of the
parties to a cause or matter is entitled to in respect of any legal or
equitable claim properly brought before it.

See also: David Kayondo v Co-operative Bank ltd SCCA No. 10 of 1991). Such
jurisdiction cannot be whittled away.

Desai- vs- Warsama (1967) E.A.351, it was held that, no court can confer
jurisdiction upon itself and where a court assumes jurisdiction and proceeds to hear
and determine a matter not within its jurisdiction, the proceedings and the
determination are a nullity.

In the case Aisha Nantume Tifu vs Damulira Kitaala James HCCS No 77 of 2007,
remedies not prayed for cannot be granted.

Several pleadings must comply to different requirements and noncompliance does

not render the suit a nullity but occasions an irregularity which may be amended.
Sabayaga farmers vs Mwita (1969) EA 38 eg a pleading on negiligence has to have
the particulars to negligence.

Sec 19 CPA Every suit shall be instituted in such manner as may be prescribed by
the rules. O. 6r24 provides that pleadings must be signed.

3.6.1 The process of institution of suits (E-filling);

There are two modes of filling used in the judicial system. The manual system and
the Electronic Court Case Management Information System.

The manual system of filing suits is applicable to the courts where ECCMIS has not
yet been rolled out.

The process of E-filling is as below;-

16
1. The process begins with scanning the pleadings, after scanning, then the
pleadings are uploaded on an account of ECCMIS.

Take note that a firm or an advocate can personally create an account on ECCMIS.
So the pleadings after being uploaded on the ECCMIS account, they are given a
draft number that is used by advocates to search and or establish status of what has
been filed.

2. Generate the payment reference and pay via mobile money.

3. Submit the case for registration and there you will have a system generated draft
number.

4. It will be sent to the registrar in charge for validation. (Role of the court)
The draft number of the pleadings, or the pleadings have to be validated by the
registrar, after validation, then they are given a number which we use as the suit
number.
Before validation, the case doesn't have a suit number, it's after the validation that it
gets a suit number.

5. Follow up with the registrar, the registrar will validate the file, print out summons to
file a defence, sign them, and have them sealed.

6. When you get the summons attach them to copies of the plaint and serve the
defendants.

Some registrars use system generated signatures and for that reason you will have
to just print out a copy from your ECCMIS account.

7. When you finish to serve you scan and file an affidavit on the system.

17
NB: Whoever tries to pay URA fees / obtain an assessment on the system gets a
PRN. It is the number used to pay. Without it one cannot pay URA fees.

3.6.2 Issue and service of summons;

When a suit has been duly instituted, a summons may be issued to the
defendant ordering him or her to file a defence within a time to be specified in
the summons or ordering him to appear and answer the claim on a day to be
specified in the summons. See O5. R 1 (1) of the CPR 1998.
A summons to file a defence shall be accompanied by;
(i) a copy of the plaint,
(ii) summary of evidence,
(iii) list of witnesses,
(iv) list of documents and list of authorities (O.6 r. 2 CPR)

Service of the summons is to be effected within 21 except that the time may be
extended, on application to court within 15 days after expiry of the 21 days. O. 5 r1
(2) and if this is not complied with, O. 5 r1 (3) will apply and the suit shall be
dismissed without notice. See Bitaminsi Vs Rwabuganda (Civil Appeal 16 of 2014)
(2018) UGSC 53
Mode of service of summons is provided for under O. 5 r 8 CPR.

3.6.3 Delivery and Transmission of summon for service

Order 5 r 7 to 21 is applicable

Order 5 r 16 provides for an affidavit of service

3.6.4The effect of conducting concurrent criminal proceedings and civil

proceedings touching the same subject matter.

18
Criminal matters have different standards of proof and hence one cannot rely on a
criminal case to prove a civil matter. Reference was made to the case of ESSO
Standard vs. Mike Nabudere CS. 594/1992 KALR and Joseph Zagyenda vs.
Uganda HCT-CM. 3/11.
However the co-existence of both proceedings should not be used to steer an abuse
of court process. In the event that there is existence of any abuse of court process,
counsel can move court to have any of the proceedings stayed. The result of the
proceedings on going will determine the proceedings stayed.

3.6.5 The rights of the parties whose pleadings have been served, at this stage
of the suit.

The parties whose pleadings have been served, at this stage of the suit.

- Withdraw the suit under O. 25 r 1 & 7 of the CPR. See Mulondo vs Semakula.
(1969) HCB 27

- Amendment of pleadings Section 100 CPA, O. 6 r 19, 20 of the CPR.

At this stage, the amendment will only be available to the plaintiff and this has
to be done within twenty one days from the date of issue of issue of
summons to the defendant.
The principles relied on are laid down in Gaso Transporters Services Ltd vs
Martins Adala Obene SCCA 4/1994 which are ,-

a) The amendment must not work in an injustice to the other side

b) Multiplicity of pleadings should be avoided as far as possible and
amendments which avoid multiplicity should be avoided
c) An application which is made malafide should not be granted.
d) No amendment should be allowed where it is expressly or impliedly prohibited
by law
e) The amendment sought should not exchange the cause of action
substantially.

19
 Further read O. 6 r22, 23, 24, 25

3.6.6 Relevant law to guide your research.

1. The Constitution of the Republic of Uganda, 1995.

2. The Judicature Act, Cap. 13.
3. The Civil Procedure Act, Cap. 71; and the rules made thereunder (CPR).
4. The Civil Procedure ( Amendment ) Rules , 2019
5. The Evidence Act, Cap. 6.
6. The Limitations Act, Cap 80.
7. The Contract Act, 2010.
8. The Bills of Exchange Act Cap. 68.
9. The Law Reform (Miscellaneous Provisions) Act, Cap. 79.
10. The Kampala Capital City Act.
11. The Government Proceedings Act, Cap.77.
12. The Civil Procedure (Government Proceedings) Rules.
13. The Civil Procedure and Limitations (Miscellaneous Provisions) Act, Cap 72.
14. The Local Government Act, Cap 347.
15. The Judicature (Court Fees, Fines & Deposit) Rules.
16. The Advocates Remuneration and Taxation of Costs Rules
17. Advocates (professional Conduct) Regulations
18. The Electricity Amendment Act Cap 145
19. The Electricity (Amendment) Act, 2022
20. The Standardized Complaints Handling Guidelines for the Supply for the
Electricity Supply Industry , 2021
21. The Labour Disputes (Arbitration and Settlement) Act, 2006
22. The Labour Disputes (Arbitration and Settlement) (Industrial Court Procedure)
Rules, 2012

Case law
1. The Fort Hall Bakery Supply Co. v Fredrick Wangoe (1959) E.A 474.
2. Kakooza Mutale v Attorney General [2001-2005] HCB 110,111.

20
 3. Sarah K. Mbonabukya v NPART Tribunal Case No. 24/1999.
4. Ismail Serugo v KCC & Attorney General Constn Appeal No.2/1998.
5. Shudir Ruperalia & Anor v Sissa Club [2006]
6. Auto Garage v Motokov (No.3) [ 1971] E.A 514, 515.
7. Uganda General Commodity Co. Ltd v Jinja Cash Commodity
Stores Ltd (1965) E.A 496.
8. Desai v Warsaw (1967) E.A
9. Pamba v Coffee Marketing Board [1975] HCB 383.
10. Gulu Municipal Council v Gabriel Nyeko & Ors. HCCS No. 77/1996.
11. Wambugu v Public Service Commission [ 1972] E.A 29.
12. Mansion House Ltd v Wilkinson (1954) E.A 22 EACA 98.
13. Nakitto & Bros. v Katumba [1983] HCB 70.
14. Erinest Ochieng v Obedo Nyambito Civil Appeal No. 92/1973.
15. Obed Tashobya v DFCU Ltd HCT-oo-cs-742-2004.
16. Kabale HousingEstates Tenants Association V. Kabale Municipal Local
Council CA. 15 of 2013,
17. Danish Mercantile Co. Ltd V. Beamont & Anor. (1951) Ch. CA
680 where Jenkins L .J at page 687
18. Uganda vs Patricia Ojangole Criminal case no.1 /2014 Uganda Development
bank vs Ms Kasirye Byaruhanga and Company Advocates.
19. Elizabeth kobusingye vs Annet Zimbiha HCCA no 395 of 2014
20. Joseph Agenda vs Uganda HCT-00-CR-CM 003 of 2011
21. ESSO Standard vs. Mike Nabudere CS. 594/1992 KALR and Joseph
Zagyenda vs. Uganda HCT-CM. 3/11.

4.0 CHAPTER TWO

MODULE TWO: STEPS SUBSEQUENT TO INSTITUTION OF SUIT

Under this module, a student will be exposed to procedures subsequent to the

institution of suits.
21
4.1 Aims of the module

The aim of the module is to;

1. Develop ability to advise on the procedures subsequent to service of

summons;
2. Develop ability to undertake processes subsequent to service of summons;
3. Recognise the ethical issues relating to processes subsequent to service of
summon.

4.2 Learning outcomes

By the end of this module, you will be able to;

1. Explain processes subsequent to service of summons;

2. Illustrate the filing of defences and replies to the defences;
3. Illustrate the applications for default, interlocutory and ex-parte judgements;
4. Illustrate the process of taking out summons for directions;
5. Draft relevant documents in relation to processes subsequent to service of
summons;
6. Recognise the ethical issues relating to processes subsequent to service of
summons.
4.3 Outline of content

1. Defence;

2. Reply to the defence;

3. Amendment of pleadings;
4. Summons for directions;
5. Interlocutory applications heard when taking out summons for directions;

6. Default, Interlocutory and ex-parte judgments;

7. Setting aside ex-parte judgments and decrees.

22
4.4 Defence and Counter claim;

Introduction

What is the first step that a defendant must take in civil litigation? It is when
served with the summons and pleadings that a defendant must respond,
otherwise the plaintiff will be able to ‘win by default’.

There are two ways in which a defendant may respond, namely:

(a) by filing a defence;

(b) by filing an admission.

Before considering these steps in turn, it is important to be clear about the rules
relating to the calculation of the time for doing any act, such as filing a defence.

4.4.1 Computation of time

Order 51 of the CPR sets out how to calculate any period of time for doing an act
which is specified in the Rules.

Time limits

As we have seen, a defendant can respond to proceedings first by filing his

defence. What is the time limit, given the choice? O. 8r1 (2) provides for 15 days
after the service of the summons.

4.4.2 Extending the time limit

The time for filing a defence may be extended by agreement between the parties
for a period of up to 15 days. If the parties do reach such an agreement, i t i s
g o o d p r a c t i c e f o r the defendant to give the court written notice of the
agreement.
Any further extension can only be authorised by the court. The court will usually
grant an extension. The defendant will make a formal application for extension of
time to file a defence.

4.4.2 Types of defences.

A defence is a written plea made against the plaintiff’s statement of claim.

23
(a) Non-conditional and conditional defences.
A non-conditional defence is one made under an express right to do so, such as
under a suit commenced by an ordinary plaint (O. 8. r. 1 & O. 9 r. 1 CPR).

A conditional defence is one not made as of right but filed after a defendant has
satisfied a condition precedent such as; proof of a triable issue, deposit of an
admitted sum of money or any other security as may have been ordered by court.
Claims under O.36 r. 2 CPR usually give rise to such conditional defences.

(b) Technical and non-technical defences.

A technical defense is premised on a point of law. It ought to be explicit in such
regard. Examples are defenses on limitation periods, res judicata, lack of locus
standi, lack of cause of action, estoppel, or any other immunity expressly provided by
law.
Non- technical defences are those intended to address facts raised by the adverse
which lack specificity and instead delve into evasive denials (O. 6 r. 10 CPR) of
party’s pleading. These may be general or specific.

A good defence must be specific and thus traverse each fact raised in the adverse
pleading specifically.
To traverse means to deny the allegations in the plaint. Any allegation not
specifically traversed is deemed admitted (O.6 r.8 & O.8 r. 3 CPR).
General defences render such a pleading liable to be struck out, unless amended.
They do not promote fairness but are a recipe for surprise attacks.

(c) Plausible and sham defences.

Plausible defences are those which manifest merit on the face of it by giving
justifiable responses to every allegation of fact raised by the claim.
They ipso facto make a court bound to hear the matter and determine all issues
raised therein.
Sham defences are devoid of merit. They are filed for the sake of it.

24
They are usually made in bad faith, dishonestly, and to delay litigation. They
border on an abuse of process. Courts are seized with jurisdiction to strike them out.

(d) Defences containing admission.

An admission is an unequivocal acknowledgment of liability made by a defendant or
his authorized agent. It must be relevant to the dispute at hand. Where the same is
made in writing, a party making it must have signed the document purporting to
express it under a free atmosphere devoid of duress or undue influence (O.13 r.1
CPR).
An admission rightly made, shortens the trial/litigation process as it gives rise to
an instant judgment. (O.13 r. 6 CPR).
In law, an admission is treated as the best evidence against its maker See
Haj Asuman Mutekanga v Equator Growers (U) Ltd SCCA No. 7/1995).

(e) Defences containing setoff/counter claims (O.8 r.2 CPR).

A set-off is a monetary claim set up by a defence, to a claim contained in a plaint
whilst a counter claim is in fact a claim by the defendant (not necessarily
monetary) by the defendant against the plaintiff in the same proceedings.
The life of a set-off revolves upon the plaintiff’s claim.
Secondly, whereas a plaintiff may make no response to a set-off, he must reply to a
counter claim otherwise judgment may be entered against him on it.

4.4.3 Defendant wishing to dispute the jurisdiction of the court.

If the summons are Problematic, then;-

O. 9r2 provides that the filling of a defence by the defendant shall not be
treated as a waiver by him or her of any irregularity in the summons or
service of the summons or in any order giving leave to serve the summons
out of the jurisdiction or extending the validity of the summons for the
purpose of service.

25
 By O 9 r 3, if a defendant wishes to dispute the jurisdiction of the court, he must
indicate this on the acknowledgement of service. After filing the defence , he
must then challenge the jurisdiction by making an application within the time
limited for service of a defence or he will be treated as having submitted to
the jurisdiction.

O. 9r 3 (2) & (3) provides the mode of filling this application which is by way o f
chamber summons. Also See O. 9 r3 (4)(5)& (6) of the CPR

4.4.5 Problematic summons:

A summons is a court document in which a court expresses its command against a

party
(a) Improper set of summons.
These do not correspond with the appropriate form on a given pleading.
As a general rule, a party served with improper summons must take the
appropriate step in time otherwise any objections may merely serve as grounds for
extension of time within which to do so.
The application must be filed within the required time for filing the defence.

(b) Expired summons before service.

Summons are required to be served within 21 days from the date of issue. After
such time they expire.
This as well strips the court of the jurisdiction to require the defendant’s court
attendance on them.
In such cases, the suit becomes open to a dismissal without notice to the plaintiff.
(O.5 r. 2 (3) CPR; Bitaminsi Vs Rwabuganda (Civil Appeal 16 of 2014) (2018) UGSC
53

(c) Summons directed against a wrong party.

While this could be as a result of an honest mistake on the part of the one who
prepared the summons, such person named and served cannot sit back to grumble
quietly.
One must file a defence within the stipulated time and then give notice of
26
challenging his inclusion to the suit.

4.4.6 Drafting of the written statement of defence.

The defence has to comply with O.6, O.8r1, 3, 4, 5, 6 of the CPR.

Set off

This is provided in O. 8r.2. A set off is in the nature of a defence. Set offs arise
from –

i) Mutual debts
ii) Matters of complaints which if established , reduce or even extinguish
the claim
iii) Equitable set offs

A defence of set off should be particularised.

Counter- claim.

This is also provided by O.8 r2, 7 & 8, 9 & 10. A counter claim is in the nature
of a cross action.

If a defendant has a valid cause of action of any description against a plaintiff,

together with any other person there is no necessity for him to bring a separate
cross action since he can make a counter claim in same action against the
plaintiff. Uganda Wholesalers Limited vs Impex Housing Limited (1971)
HCB 245

O. 8 r13 if the suit of the plaintiff is stayed, discontinued or dismissed, the

counterclaim may never the less be proceeded with.

Filing and serving of the written statement of defence.

This governed by O.9 r1, 2, 3, 4 of the CPR.

Depending on the court in which the suit was instituted, the filling may either be
manually done l or by ECCMIS.

27
4.4.7 Admissions O.13 CPR

Admissions, non-admissions, denials and assertions

The defence must provide a comprehensive response to the particulars of claim,

and therefore, in respect of each allegation in the particulars of claim, there
should be an admission, a denial or, where the defendant has no knowledge
of the matter stated, a requirement that the claimant will prove the point, ie a
non-admission. Any denial must be explicit and a defendant must state his
reasons for denying the allegation in the particulars of claim. If the defendant
wishes to put forward a version of events different from that given by the
claimant, the defendant must state his own version.( O. 8 r 16 & 17 ) . A bare
denial is not acceptable. Moreover, by the so- called ‘rule of implied admissions’,
a defendant who fails to deal with an allegation is taken to admit it: see O. 8 r3
and Misc. Cause No. 229 of 2018; RO/ 10224 Retired Lt. Ali Nangosha Kundu
vs. AG, Hon. Justice Esta Nambayo cited the case of Prof Oloka Onyango 7
Others vs. AG; Constitutional Petition No. 6 of 2014, in which the Constitutional
Court held that “ Where one has alleged a fact and a person against whom the fact
is alleged does not deny, he is presumed to have accepted the fact.”

Once the admission of facts is made, the court may make such order or give such
Judgement. However this will only be possible if such admission is clear, explicit and
not open to doubt as was seen in the case of John Peter Nazareth vs Barclays
International Limited. EACA 39 of 1976, Haj Asuman Mutekanga v Equator
Growers (U) Ltd SCCA No. 7/1995).

4.4.8 Pleading a reply to the defence and defence to counter -claim; O.8 r 11,
18

A reply to a defence deals with the defence while defence to a counter claim deals
with the counter claim.

4.4.9 The rights of the parties whose pleadings have been served, at this stage
of the suit.

28
The have a right to;-
- withdraw the suit under O. 25 r 1, 3, 4, 5, 6 & 7 of the CPR.

See Mulondo vs Semakula. (1969) HCB 27

In case of a consent to withdrew, third parties are not bound by such a consent.

See Uganda Oxygen limited vs Jamal (1994) IIKALR 5

Look at O. 25 r6 compromise of a suit the agreement is recorded by the court and

passed as a decree in accordance with the agreement or compromise. See Dison
Okumu & 9 Ors v Uganda Electricity Transmission Company Limited & 7 Ors
High Court Civil Suit No. 49 of 2014

- Amendment of pleadings;

Section 100 CPA.

The Court to allow it at any stage of the proceedings at the instance of either party
on terms that may be just. See O. 6 r 19
O. 6 21 provides that a defendant who has set up any counter claim or set off may
amend counter claim or set off. See Ombejja Namusisi v Makerere University Mis
App No. 1199 of 2023.

The principles relied on are laid down in Gaso Transporters Services Ltd vs Martins
Adala Obene SCCA 4/1994 which are ,-

f) The amendment must not work in an injustice to the other side

g) Multiplicity of pleadings should be avoided as far as possible and
amendments which avoid multiplicity should be avoided
h) An application which is made malafide should not be granted.
i) No amendment should be allowed where it is expressly or impliedly prohibited
by law

29
 j) The amendment sought should not exchange the cause of action
substantially.

Further read O. 6 r22, 23, 24, 25

4.5 Summons for directions;

What is a summons for directions?

As way back as 1994, the Supreme Court in Paulo Lutalemwa Kakooza v Attorney
General SCCA No. 06/1993 lauded the significance of summons for directions as an
effective pre-trial procedure that would be the most practical method of ensuring
effective trials.
In the words of H.G Platt (JSC) (as he then was), court observed thus;
…We venture to suggest that it is now necessary that the procedure under summons
for directions is appropriate for courts where the pending claim would be in their
jurisdictions, amendment of pleadings, seeking further and better particulars,
discovery and inspection of documents, nature of evidence and how it should be
conducted, admissions, attendance of witnesses, stay of proceedings, security for
costs, attachment before judgment, parties to suits, issue and service of summons
prosecution of suits and adjournments, withdrawal of suits and adjustments, suits by
paupers, temporary injunctions, time, motions and applications etc] , adopt a course
which will be secure, just, expeditious and economical in the disposal of suits.

Therefore, Summons for directions is a case management tool that was introduced
in Uganda with the aim of empowering courts to manage case backlog.
Consequently it should not be looked at as a new procedure of commencement
of suits.

By definition, it is a formal request made to court by the plaintiff seeking court’s

guidance on how the suit will progress after closure of pleadings. This thus means
that summons for directions are aimed at invoking courts guidance on matters of
procedure prior to hearing a civil action/suit.

30
Rule 7 of the Civil procedure (Amendment) Rules, 2019 provides for amendment of
appendices. Form 14 A was introduced and it details the form of summons for
directions.

4.5.1 When should summons for directions be taken out?

Summons for directions are required to be taken out within 28 days of the date of
the last reply or rejoinder. See:- Order 11A Rule 1 (2) of the Civil Procedure
Rules (as amended)

What happens if the plaintiff fails to take out summons for directions?

The general rule is that if the plaintiff does not take out summons for directions
within 28 days, the suit shall abate. See: Order 11A Rule 1(6). This means that
the suit shall be dismissed with costs as against the party that filed the suit
(plaintiff). The High court has held in various decisions that the requirement to take
out summons for directions within 28 days is couched in mandatory terms, and
therefore, failure to do so will lead to the suit being dismissed. ) See: - Abdu
Kiwanuka Yiga vs Abubaker Kaddu Kiberu H.C.M.A NO. 386/2022 Before
Justice John Eiudes Keitirima at page 7 of his judgment)).

Where summons for directions are not taken out, counsel for the defendant can at
the earliest opportunity raise a preliminary objection to the effect that summons for
directions weren’t taken out within the mandatory 28 days and therefore the suit
should be dismissed. On this ground alone, court is expected to dismiss the matter
without need to dwell into the merits of the case.

4.5.2 Court interpretation on the law on summons for directions

There seems to be contradictory jurisprudence over the interpretation of the said

rules with regards to taking out summons for directions within 28 days, specifically
on the context under which the verb “SHALL” was used.

In the case of ADDUL DDAMULIRA VS MSS XSABO POWER LTD HCMA NO

046/2021, Justice Oyuko Anthony Ojok gave the verb “shall” a strict meaning.
In his view, he held that the said order makes it mandatory and that if

31
summons for directions are not taken out within 28 days, the suit abates
automatically.

On the other hand, the Hon. Lady Justice Florence Nakachwa in

GEOFFREY WASSWA Vs AMY for Africa LTD and 2 others HCCS
NO.127/2020 page 8 gave the word “shall” a more contextualized application by
holding as follows;

“… ‘shall’ is sometimes intended to be directory only.

In that case, it is equivalent to ‘may’ and would be construed as merely

permissive to carry out the legislative intention. This applies usually where no
right or benefit accrues to anyone, or where no public or private right is impaired
by its interpretation as directory”. She further went on to quote the decision in
KAGIMU MOSES GAVA AND 7 OTHERS VS SEKATAWA MUHAMMED AND
7 OTHERS HCMA NO. 25/2020, where Justice Olive Kazaarwe Mukwaya held
that; the intention of the framers of Order 11A Rule 1 of the CPR amendment
Rules was to mitigate the delays brought by court officers and parties in civil
proceedings. In order that these rules achieve the desired objective, a holistic
and judicious approach should be adopted by the courts.”

The facts of the above case showed that the suit was not dormant as a joint trial
bundle had been filed on court record. Court was of the opinion that this showed
that there was proof that some action had been undertaken in the suit and thus
the suit hadn’t abated.

Lastly in GAMA Distillers LTD vs. Bikanza Ezra HCCS NO. 60/2021, the

Hon. Justice Vincent Wagona at page 5 of his judgment held thus;

“From reading the entire Order 11A of the CPR (Amendment) Rules of
2019, what comes to my mind is that the order was intended to speed
up trials by curtailing unnecessary delays. It was not intended to be
used as a sword against parties’ live claims by strangling all under the
guise that the summons for directions procedure was not strictly

32
 adhered to. Each case should be considered on its own peculiar merits
and peculiarities. It is my humble view that the application of the said
order should not be a universal one but should be applied on a
case to case basis… In some circumstances, it would not serve
any great purpose to have the suit abated under Order 11A Rule 2 and
6 yet later the parties can file the same claims.”

This would thus mean that courts should consider each matter/case under its
own peculiar circumstances using the holistic and judicious approach to allow
matters heard on their merits for as long as no injustice is caused to the
opposite party.

Secondly, courts have held that the amendment rules are still relatively new and
have introduced radical positions that would require a reasonable period of
transition. Therefore, where a breach or omission based on their application is
not of utmost substance and no injustice would occasion to the opposite party,
the court should be hesitant to apply them with full force. See:- Carlton Douglas
(supra) at page 6

4.5.3 Are there any exceptions to the above rule on abatement of a suit for
failure to take out summons for directions?

Yes. The rules provide five (5) exceptions where a suit won’t abate even if the
plaintiff hasn’t taken out summons for directions. These are provided under
ORDER 11A RULE 1 (4) OF THE CIVIL PROCEDURE RULES (AS
AMENEDED). They include:-

a) Where a plaintiff/counter claimant has applied for a default judgment

under Order 9 rule 6 , summary judgment under order 36 or where an
application for leave to file a defence under order 36 is refused;

33
 b) Where the plaintiff/defendant in an action has applied under Order 6 rules
29 or 30 (or Order 15 rule 2 for determination of the suit on a point or points of
law;

c) Where the plaintiff in his or her plaint prays for an account under

Order 20;

d) An action in which an application for transfer to another division, court or

tribunal is made; or

e) Where a matter is referred by the court to an official referee or arbitrator.

According to the case of Carlton Douglas Kasirye vs. Sheena Ahumuza
HCMA NO. 150/2020, Justice Boniface Wamala at page 5 of his
judgment held as follows; “… by virtue of the role played by a mediator,
he/she performs the function of an official referee of the court… A court
appointed mediator therefore fits well within the meaning of an official referee as
used under Order 11A Rule 1 (4) (e) of the CPR as amended.”

It follows therefore, that where a matter falls under any of the above instances,
the plaintiff would not be expected to take out summons for directions within the
28 days.

It’s also important to note that where discovery of documents is required to

be made by either of the parties, the court may either on its own motion or
application by either party, extend the 28 day period. See:- Order 11A Rule 1
(5) CIVIL PROCEDURE (AMENDMENT) RULES, 2019 & KAGIMU MOSES
GAVA AND 7 OTHERS VS SEKATAWA MUHAMMED AND 7 OTHERS HCMA
NO. 25/2020 PAGE 7

4.5.4. What solution/remedy is available to the plaintiff once a suit has been
dismissed for failure to take out summons for directions within 28 days?

The only recourse/remedy available to the plaintiff is to file a fresh suit subject to
the law of limitation. See Order 11A Rule 1 (7)

34
4.5.5. Duty to consider all matters

O 11A r 2, 7 (1) of the Civil procedure (Amendment) Rules, 2019 provides for what
the court considers when the summons for directions first comes to be heard.

4.5.6. Interlocutory applications heard when taking out summons for

directions;

Rule 6 of the Civil procedure (Amendment) Rules, 2019 provided for the Amendment
of O. 50 and substituted Rule 3 to read that all formal and interlocutory matters are
handled by a Registrar.

O.11A r 6 provides for the duty to make interlocutory applications before hearing of
summons for directions.

What matters can be dealt with under summons for directions?

All formal steps preliminary to the trial, and all interlocutory applications, may be
handled under summons for directions. The judicial officer is required to deal with
any matters which are necessary to prepare the case for trial.

Form 14B of the civil procedure (amendment) rules, 2019 provides a list of all
matters which may be considered by court under summons for directions for
example;

a) Consolidation of actions;

b) Transfer to official referee/mediator;

c) Amendment of pleadings, further and better particulars;

d) Discovery and inspection of documents e)

Interrogatories

f) Evidence

g) Taking of accounts;

h) Attendance of witnesses;

i) Stay of proceedings;
35
 j) Reference to arbitration;

k) Security for costs;

l) Attachment before judgment

m) Temporary injunctions;

n) Suits by paupers;

o) Motions and other applications.

p) In matters of land, the registrar shall visit the locus with the parties before the
hearing of the case and shall record all the developments on the land at the time
of visiting the locus and shall prepare a report to that effect.

q) ETC

4.5.7 Duty to make interlocutory applications before hearing of summons for

directions.
O. 11A r6 provides for this.

4.5.8 Compliance with summons for directions

O.11A r 7(2) & r 8 of the Civil procedure (Amendment) Rules, 2019.

The compliance is in respect of schedule 2 of O. 11r 7(2) Of the Civil
Procedure (Amendment) Rules, 2019. So a joint scheduling
memorandum and a joint trial bundle should be filed at this stage. This
is done before the Registrar or Magistrate of Court.

4.5.9 Default, Interlocutory and ex-parte judgments;

5.0 Default judgments

Introduction

Under O. 9r 6 once the proceedings have been served upon the defendant, a n d
the defendant fails to file a defence within a period specified,

36
the p l a i n t i f f can obtain judgment in default against the defendant. This
judgement is obtained without a hearing.

If this uncontested judgement is not entered, the defendant may with the
consent of the plaintiff or leave of court apply for late filing.

The plaintiff may enter a default judgment in the following types of cases:

( a ) a claim for a l i q u i d a t e d d e m a n d u n d e r O . 9 r 6
(b) a claim for a liquidated demand under O. 36 r2(a)

The law provides that it is the plaintiff that applies for default judgment by
filing a notice of motion. The practice in court has been that an ordinary letter with
an affidavit of service attached is normally used to apply for a default judgement.
The best practice is to formally apply for the default judgement. Here the plaintiff or
his advocate will then appear in court with the said letter and move court for the
judgement to be entered.

The plaintiff must satisfy the court that:

(a) the plaint and summons must have been served properly and there must
be proof of service . See kanji Naran v Velji Ramji (1954) 21 EACA 20.
(b) The claim in the plaint must be a liquidated demand. A liquidated demand
is a specific sum of money due and payable under or by virtue of a
contract. It must be either already ascertained or capable of being
ascertained as a mere matter of arithmetic. If the ascertainment of a sum
of money even if it is specified or named as a definite figure but requires
investigation beyond mere calculation, then the sum is not a liquidated
demand or debt but simply constitutes damages. See Standard
Chartered Bank Kenya Ltd v Arjan (2001) KLR 368.

(b) the defendant has not /filed a defence and the relevant time period has
expired. This is not similar to a situation where the defence has been filed and
not served on the opposite party. In such a circumstance, a default judgement
cannot be entered. See Simon Tendo Kabenge v Barclays Bank Uganda Ltd
& Philip Dande CACA No. 167 of 2012.

37
(c) the defendant has not satisfied the claim.

The court will may subject to O9r5 pass judgement for any sum not
exceeding the sum claimed in the plaint with or without interest at the rate
specified and if the rate is not specified, at the rate of 8 percent per year to
the date of judgement and cost.

5.0.1 Co-defendants

Under O. 9 r7 , where there are co-defendants, the p l a i n t i f f may enter a

default judgment against one or more of the co-defendants while proceeding
with his claim against the other defendants, provided the claim can be dealt
with separately. Otherwise, the court m a y i s s u e e x e c u t i o n u p o n s u c h
judgement and decree without prejudice to the plaintiff’s
right to proceed with the action against such as have filed a
defence

5.0.2 Judgement in default against Government.

This is not possible except with the leave of court. Any application for such, leave shall be
made by chamber summons served not less than seven days before the return day see
Rule 6 , The Government Proceedings (Civil Procedure ) Rules SI 77-1

5.0.3 Interlocutory judgements

O. 9 r8 & 9 CPR

Here the claim should be for pecuniary damages only or for detention of goods with
or without a claim for pecuniary damages and the defend fails to file a defence on or
before the day fixed in the summons subject to O.9r5 of the CPR enter an
interlocutory judgment against the defendant and set down the suit for assessment
by the court of the value of the goods and damages only. See Haj Asuman
Mutekanga v Equator Growers (U) Ltd SCCA No. 7/1995).

38
5.0.4. The general rule where no defence is filed.

O.9r10 provides for this. See Carlton Douglas Kasirye v Sheena Ahumuza
Bageine aka TASHA HCMA No. 150 of 2020.

Here in all suits not by the rules of this Order, which means apart from claims for
liquidated demands and claim should be for pecuniary damages only or for detention
of goods with or without a claim for pecuniary damages and the defendant does not
file a defence within the prescribed period of time, upon a compliance with O.9 r 5,
the suit will proceed as if that party had filed a defence. This means that hearing
notices will be issued subsequent to any proceeding that took place in that suit and
the defendant will be served.

5.0.5 Ex parte judgements

O. 9r 11(1) & (2) CPR

Here one has to prove that the time allowed for filling the defence has expired and
the defendant has failed to file his or her defences, the plaintiff may set down the suit
for hearing ex parte. This means that the plaintiff will set down the suit for hearing
formally without the participation of the defendant.

5.0.6. Mixed claims

In situations where the plaint is endorsed with a liquidated claim coupled with a claim
for damages only or coupled with a claim in respect of detention of goods, because
of the restrictive wording of O. 9 rule 6 & 8 one cannot apply for a default judgement
and then opt for an interlocutory judgement on the rest of the claim. This is because
rule 6 and 8 provide for different categories of claims. See Dembe Trading
Enterprises Limited v Uganda Confidential Limited and Teddy Ssezi Cheeye, HCCS
No. 612 of 2006.

5.0.7. Setting aside ex-parte judgments

O. 9 r`12

39
Just cause has to be proved for any judgement to be set aside pursuant to any
proceeding rules under O. L of these rules.

5.0.8. Setting aside ex parte decrees

O. 9 r 27

If a decree is passed ex-parte, the defendant can set aside the same if he satisfies
the court that summons were not duly served or that he was prevented by any
sufficient cause from appearing when the suit was called on for hearing.

5.0.9 Discovery on oath, Production, inspection and interrogatories.

These orders are discretionary see Dresdner Bank Ag. v. Sango Bay Estates Ltd
(No. 3) [1971] 1 EA 326 and Dresdner Bank Ag. v. Sango Bay Estates Ltd (No.
4) [1971] 1 EA 409).

These principles are commonly called the test of relevancy or Peruvian Guano test
from Compagnie Financiere du Pacifique v. Peruvian Guano Co (1882) 11 QBD
55 per Brett LJ:
“It seem to me that every document relates to the matters in question in the
action, which not only would be evidence upon any issue, but also which, it is
reasonable to suppose, contains information which may – not which must –
either directly or indirectly enable he party requiring the affidavit either to
advance his own case or to damage the case of his adversary. I have put the
words “either directly or indirectly,” because, as it seems to me, a document
can properly be said to contain information which may enable the party
requiring the affidavit either to advance his own case or to damage the case of
his adversary, if it is a document which may fairly lead to a train of inquiry,
which may have either of these two consequences…

In 2000 the UK Civil Procedure Rules replaced the Peruvian Guano test with
provisions for “Standard Discloure” following a “reasonable search”, all subject to the
proportionality tests contained in the overriding objectives. As Jacob LJ said in
Nichia Coproration v. Argos Limited [2007] EWCA Civl 741:
40
“It is manifest that [the Peruvian Guano test] is a much wider test than that for
“standard disclosure”… What is now required is that, following only a
“reasonable search” [CPR 31.7(1)), the disclosing party should, before making
disclosure, consider each document to see whether it adversely affects his
own or another party’s case or supports another party’s case … [I]I is possible
for a highly material document to exist which would be outside “standard
disclosure” but within the Peruvian Guano test. Or such a document might be
one which would not be found by a reasonable search. No doubt such ceases
are rare. But the rules now sacrifice the “perfect justice” solution for the more
pragmatic “standard disclosure” and “reasonable search” rule, even though in
the rare instance the “right” result may not be achieved.”

5.1 Discovery of documents

Discovery covers any document, not otherwise privileged or protected by law, which
is directly relevant to the issues involved in the case. Discovery may be obtained by
one or more of the methods provided under The Civil procedure Rules, including:
written interrogatories (Order 10 rules 1 – 11), summons for production of documents
(Order 16 rule 6), requests for inspection (Order 10 rule 16), notice to produce
documents (Order 10 rule 12), and notice for admission of documents (Order 13 rule
2).
In light to the multiple options, whenever possible, a party seeking production of
documents should attempt first to obtain the adversary’s voluntary cooperation, by
serving a notice to produce documents on the other party.
Upon failure to obtain voluntary cooperation, discovery may then be sought by a
written motion directed to the court. The motion in that case should be accompanied
by:
(i) a copy of the original request and a statement showing the relevance and
materiality of the information sought; and
(ii) a copy of the objections to discovery or, where appropriate, a statement
with accompanying affidavit that no response has been received.
There are four proper responses to the substance of a notice to produce documents:
(1) a response agreeing to produce the requested documents,

41
(2) a response objecting to the request in its entirety,
(3) a response objecting to the request in part, for example, because it is overly
broad as to time, place, or subject matter, and
(4) a response stating that no responsive documents have been located.
An objection must be made in writing within the time allowed for the response.
Sometimes, rather than responding about ability to produce the requested
documents, the respondent may object to the request on legal grounds. Common
objections to requests for production or inspection include:
- the request is overly broad or unduly burdensome (where the information supplied
by the applicant is insufficient to make the requested documents easily identifiable);
the request is vague, ambiguous, or unintelligible (where the request makes no
sense); and that the request is not reasonably calculated to lead to the discovery of
relevant, admissible evidence.

Under Sections 22 of the Civil Procedure Act and Order 10 Rules, 12, 13 &
14.of the Civil Procedure Rules.

Order 10 rule 12 (1) of the Civil Procedure Rules provides that:

“(1) Any party may, without filing any affidavit apply to the Court for an
order directing any other party to the Suit to make a discovery on oath of the
documents, which are or have been in his or her possession or power relating
to any matter in question in the Suit.”

And Order 10 rule 14 of the Civil Procedure Rules provides that;

“The court may, at any time during the pendency of a suit order the production
by any party to the suit, upon oath, of such documents in his or her
possession or power relating to any matter in question in the suit, as the court
shall think right………”

Public policy considers it desirable to give litigants access to all material facts not
protected by privilege to facilitate the speedy and fair administration of Justice.

42
Discovery is contingent upon a party's reasonable belief that he or she has a good
cause of action or defence. See: Karuhanga & Anor Vs Attorney General & 2 Ors
MISC. CAUSE NO. 0060 OF 2015, [2015] UGHCCD 39 (28 May 2015);

It is also trite law that court will deny discovery if the party is using it as a fishing
expedition to ascertain information for the purpose of starting an action or developing
a defence. On what amounts to a fishing expedition see Gale v Denman Picture
Houses Ltd [1930] KB 588, 590 per Lord, Scrutton L. J relied upon by the
respondent wherein he held inter alia thus:

“A plaintiff who issues a writ must be taken to know what his case is. If he
merely issues a writ on the chance of making a case he is issuing what used
to be called a “Fishing Bill” to try to find out whether he has a case or not.
That kind of proceeding is not to be encouraged. For a plaintiff after issuing
his writ but before delivering his statement of claim to say, “show me the
documents which may be relevant so that I may see whether I have a case or
not” is most undesirable proceeding.”

A court is responsible for protecting against the unreasonable investigation into a

party’s affairs and must deny discovery if it is intended to annoy, embarrass, oppress
or injure the parties or the witnesses who will be subjected to it.

A court will stop this discovery when used in bad faith and if the information to be
produced is not protected by privilege.

For an order of discovery to be made, the document or information must first be

shown to be:-

i) Relevance and materiality.

ii) Not otherwise privileged or protected by law
iii) Documents in the respondents’ possession, custody, control or power.
iv) Attempts at voluntary cooperation have been made.

43
Generally, discovery is not sought against third parties, and instead more specifically
identified documents or types of documents are sought by notice to produce
documents in court. Although the discovery obligations are intended to apply only to
the parties to a proceeding, sometimes a party will struggle to articulate their claim or
defend their position without having access to documents which are held by
somebody who is not a party to the proceeding. Third parties may exceptionally
(such as where they are the only remaining sources for the documentation sought),
be ordered to give discovery (see R. v. O’Connor [1995] 4 SCR 411; Pat
O’Mahony, Leonard Hyde & Labardie Fisher Ltd v. Guardian News & Media Ltd
[2020] IEHC 234 and Edward Keating v. Radio Telefís Éireann and Others
[2013] IESC 22).

The applicant must establish that:

(i) The third party has or is likely to have in its possession or power of
possession documents falling within the parameters of the type 30 of
documents sought;
(ii) The documents are relevant to an issue or issues in the suit;
(iii) (iii) an order for discovery is necessary for disposing fairly of the cause or
matter or for saving costs; and
(iv) any order made, by reference to its scope, is not oppressive.

Non- compliance with an order for discovery

Order 10 Rule 21 of the Civil Procedure Rules provides;-

“Where any party fails to comply with any order for the discovery or
inspection of documents, he/she shall, if a Defendant to have his/her defence,
if any struck out, and to be placed in the same position as if he/she had not
defended; and the party seeking discovery or inspection may apply to Court
for an order to that effect.”

44
Mugisha M. Abraham & others vs G4 Security Services (u) Ltd civil Misc.
Application no. 282 of 2010 the defence was struck off the record for non-
compliance of the order.

5.1.1 Inspection

O. 10 r15, 16 ,17 & 18.

Inspection entails both examination of documents listed and taking copies thereof.
See O. 10 r15.

5.1.2 Interrogatories

These are questions addressed to an opposing party in the action aimed at

discovering of facts in order to ascertain the nature of the opponent’s case either for
the purpose of proving or supporting his case or for impeaching or destroying the
case of the other side.

Interrogatories must relate to any matter in question between the parties. See
Marriot v Chamberlain (1886) 17 QBD 154 at 163

Order X r.1 (b) thereof, the Court will only allow those interrogatories which relate to
the matters in question or deemed relevant to the matters in question.

Under rule 7 thereof the Court will not allow those interrogatories that are vexatious,
unreasonable or that they are proflix, oppressive or unnecessary.

There are three important limits to the general rule regarding relevance.

i) Interrogatories relevant only to the credibility of the witness will be

disallowed
ii) Interrogatories may be sought only as to matters relevant to the present
action. Any interrogatories on future actions should be dismissed.
iii) Fishing interrogatories are not allowed

45
 iv) Oppressive interrogatories are not allowed.

In National Social Security Fund Board of Trustee Vrs. Kario Farms Ltd
&Others (2006) EA 240, it was observed that in the process of presenting
Interrogatories, the party interrogating may put questions for the purpose of
extracting from his opponent information as to the facts material to the questions
between them when he has to prove on any issue raised or for purposes of securing
admissions as to those facts in order that the expense and delay may be saved. The
authority above relied on Omar Vrs. Gordhanbhai& Another (1974) EA 518.

The issue that the interrogatories are not addressed to particular individuals has
been answered in Stanfield Properties Ltd. Vrs. National West Minister Bank
(1983)2 ALL ER 249where it was held that a limited liability company in answering
interrogatories must procure the making of proper answers from the company’s
officers servant or agents….. It is not what is known to the individual but what is
known to the company.

Sebastian R. D’Souza & Others Vrs. Charles Clemente Ferrao (1959) EA 1000

In deciding whether the order should be made, the Court is to be guided by:

1. Whether the Interrogatories are necessary for disposing of the suit fairly or
2. For saving costs

5.1.3. Reference List

Statutes

1. The Constitution of the Republic of Uganda, 1995.

2. The Judicature Act, Cap. 13;
3. The Civil Procedure Act, Cap. 71;
4. The Evidence Act, Cap. 6;
5. The Limitations Act, Cap 80;
6. The Contract Act, 2010;
7. The Bills of Exchange Act Cap. 68;

46
 8. The Law Reform (Miscellaneous Provisions) Act, Cap. 79;
9. The Kampala Capital City Act-; Act 1 of 2011
10. The Government Proceedings Act, Cap.77;
11. The Civil Procedure and Limitations (Miscellaneous Provisions) Act, Cap 72;
12. The Local Government Act, Cap 347.

Rules/Regulations
1. The Civil procedure ( amendment ) Rules , 2019;
2. The Government Proceedings (Civil Procedure) Rules-, SI 77-1
3. The Judicature (Court Fees, Fines & Deposit) Rules-,, SI 13-3;
4. The Advocates’ Remuneration and Taxation of Costs Rules SI 267-4.

Cases

1. Opika Opoka vs. Munno Newspapers (1990-1991) KALR 15 at 17;

2. Panjo vs Toro African bus Company (1980) HCB 57;
3. Paulo Lutalemwa kakooza vs. Ag SCCA No. 06/1993;
4. Carlton Douglas Kasirye vs. Sheena Ahumuza HCMA NO. 150/2020;
5. Peter Jogo Tabu v Registered Trustees of the Church of the Province of
Uganda HCCA No. 16/2017;
6. Barclays Bank of Uganda Limited & 2 Ors vs. Ayebazibwe Misc. App No.
1127 of 2016;
7. Gaso Transport Bus Co. Ltd vs. Martin Adala Obene SCCA No. 2/2001;
8. Ombejja Namusisi v Makerere University Mis App No. 1199 of 2023.
9. Patricia Mutesi vs. Attorney General Miscellaneous Application No. 0912 of
2016;
10. National Social Security Fund Board of Trustee vs. Kario Farms Ltd & Ors
(2006) EA 240;
11. Sebastian R. D’Souza & Others vs. Charles Clemente Ferrao (1959) EA
1000.
12. Mohamed B M Dhaji vs Lulu & Co. (1960) EA 541
13. Pan African Insurance Company vs Uganda airlines (1985)
HCB 53

47
 14. Simbamayo Estates limited & Peter Kamya v Equity Bank Uganda ltd 74
others Mis Appl No. 0583 of 2022
15. John Kato v. Muhlbauer AG & Another: Commercial Court Misc. Application
No. 175 of 2011

6.0 TERM TWO

CHAPTER THREE

MODULE THREE: INTERLOCUTORY APPLICATIONS AND HEARING CIVIL

SUITS.
6.1 Introduction

Under this module, we are introducing students to intervention as counsel in an

existing suit, interlocutory applications and hearing of civil suits.

6.2 Aim of the subject

The aim of the module is to;

1. Develop ability to advice on the processes relating to intervention by Counsel

in existing civil proceedings.
2. Develop ability to present interlocutory applications
3. Develop ability to conduct a hearing in civil litigation;
4. Recognise ethical issues relating to the intervention as counsel in an existing
suit, hearing of interlocutory applications and civil suits;

6.3 Learning outcomes:

By the end of this module you will be able to:

1. Explain the process of intervention by counsel in an existing suit, interlocutory

applications and during the hearing of civil suits;
2. Present interlocutory applications;

48
 3. Demonstrate case management processes to save court’s time and minimise
multiplicity of suits;
4. Present civil suits;
5. Recognise and deal with ethical issues relating to the intervention of counsel
in an existing suit, hearing of interlocutory applications and civil suits.

6.4 Outline of Content

1. Intervention as counsel in an existing suit;

2. Interlocutory applications;
3. Minimising multiplicity of suits;
4. Hearing of suits;
5. Recusal of judicial officers;
6. Contempt of court;
7. Burden of proof and standard of proof;
8. Evidence;
9. Re-opening of suits;
10. Locus visits in land matters;
11. Submissions (written and oral);
12. Contents of a ruling and a judgement.

6.4.1 Intervention as counsel in an existing suit;

This can either be upon filing a notice of joint counsel to court or one of change of
advocates.
Mere acceptance of instructions is not sufficient. A plaint must indicate the
plaintiff’s address of service (O. 7 r. 1 (b) CPR; Until a notice of joint counsel or
change of advocates is filed in court, the recognized agent /advocate of the
plaintiff for purposes of service and court appearances and is the plaintiff’s address
of service (O. 3 r. 1 & 4 CPR).

Purpose of filing notice of joint counsel/change of advocates:

49
1. It gives clarity to court and other parties on address of service and legal
representation in respect of the particular party.
2. It saves the outgoing advocate time to go to court in a matter where such
advocate no longer has instructions.
3. It also saves counsel the embarrassment of clashing at court with fellow
counsel over the same client.
4. It clothes the instructed counsel with authority to take fully control over the
conduct of trial and bind a client on decisions taken by him such as admissions save
for those made without prejudice, settlement, compromise and withdrawal of the suit
(Stephen Kasozi & Services v Francis Xavior Rugunda [1999] KALR 821,823)
6.4.2 Interlocutory applications;

Order 11A r7 Registrars have the powers and jurisdiction to handle interlocutory
applications.

O.11r. 6 to be served onto other party in less than 7 days before hearing of the
summons. The reply to this application shall be within 15 days from the date of
service. See O12 r 3(1)

An interlocutory injunction is derived from a pending suit. This means that there
should be a cause of action to sustain a main suit from which the interlocutory
application arises.

6.4.3 What type of injunction is appropriate?

There are various types of injunctions ie preventive, prohibitive, and restrictive. So

one has to know the special terms used to describe each of them.

Permanent injunction which is granted at the final judgement after trial and it is
intended to restrain a party from doing a specific act and is granted at the conclusion
of the trial after hearing both parties to the suit.

There are various types of injunctions.

A temporary injunction and an interim injunction is a provisional order made before

the trial. It is intended to restrain a party temporarily from doing the specified act and

50
can be granted only until the disposal of the suitor until further orders have been
issued by the court.

Mandatory injunction court order requiring specific actions to be done

Quia Timet Injunction, this is an order to prevent an apprehended legal wrong, where
none has been committed at the date of the application.

6.4.4 Temporary injunction.

This is a provisional order made before the trial. It is intended to restrain a party
temporarily from doing the specified act and can be granted only until the disposal of
the suitor until further orders have been issued by the court.

Cases from which temporary injunctions can be handled are found in O.41r1
and 2 of the CPR

6.4.5. General principles of granting a temporary injunction

The power to grant temporary injunctions is at the discretion of court.

The grant of a temporary injunction is one of the judicial discretion for the purpose of
maintaining the status quo until the dispute to be investigated is finally disposed off.
This position is often cited in the old case of Noormahamed Jammohamed v.
Kassamali Virji Madhani [1953] EACA, Godfrey Ssekitoleko & Others v. Sseezi
Mutabazi [2001-2005] HCB [3] 80 and Wasswa v. Kakooza [1989] HCB 79.

In the grant of a temporary injunction the Court does not look to the legal rights of the
parties as such but rather preservation of the status quo until disposal of the main
suit.

In this regard, my Lord, your Honourable Court will have to ascertain whether the
status quo at the time of this application has been disturbed such that it is no longer
possible to preserve or maintain.

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This is seen in the case of Clovergem Fish & Food Ltd v. International Finance
Corporation & 7 Others MA No. 441 of 2001 [2002-2004] UCLR 132 at page 137
where it was held that:“Indeed the court needs to know the status quo intended
to be preserved by the application before applying the three conditions laid
down.”

It is further settled law if there is a status quo that

can be preserved, then the applicant will have to
meet three tests or conditions as was discussed in
American Cynamid vs Ethicon Limited (1975) AC
396 and Kiyimba Kagwa v Abdul Nasser Katende
[1985] HCB 43.

1. That the applicant must show that there is a prima facie case with probability
of success.

2. That the applicant will suffer irreparable damage which will not easily be
compensated in damages. See Pan African Insurance Co. (U) Ltd v.
International Air Transport Association H.C.MA. No. 86 of 2006, Hon.
Justice Lameck N. Mukasa stated thus:“It is not enough to really repeat
the words of the code and state that substantial loss will result, the kind
of loss must be specified. Details must be given and the conscience of
the court must be satisfied that such loss will really ensue.”
In other words the actual irreparable injury/loss that can’t be atoned for in form of
damages must be specified. When the court is in doubt then it will decide the
question on balance of convenience.

3. Where does the balance of convenience lie?

These grounds are proved by way of affidavit evidence therefore O.19 of the CPR is
to be taken note of too.

6.4.5 Variation/Discharge or setting aside an order for a temporary injunction.

O. 41r4 is applicable.

52
Discharge may be on the following grounds

1. Material non-disclosure on ex parte application

2. Plaintiff’s non- observance of the terms of the grant of the injunction

3. Material changes in circumstances since the grant

4. The facts do not justify the grant

5. Plaintiff’s failure to prosecute the substantive claim sufficiently and expeditiously

6. That the effect of the injunction is oppressive or interferes with the rights of the
third parties. Creatanor Maritime Company limited vs Irish Marine Management
Limited (1978) 1 WLR 966

6.4.6 Interim orders.

R. 6 (2) of the Civil Procedure (Amendment) Rules 2019, All applications for interim
reliefs shall be inter-parties except in the following circumstances;-

i) Where the matter is urgent in nature

ii) Where there is a real threat or danger

iii) Where the application is made in good faith

The court shall entertain an application from an interim relief where there is a
pending substantive application with likelihood of success.

Rule 3 A of the Civil Procedure (Amendment) Rules 2019, ex-parte interim the
application has to be served onto the opposite party, except where it appears that
the giving of such notice would cause undue delay and that the object of granting the
interim relief would cause undue delay thereby defeating the object of granting the
interim relief.

Ex-parte interim applications shall be made orally and will only be granted in
exceptional circumstances for a period not exceeding three days from the date of

53
issue. Proof of effective service onto the opposite party has to be presented. Upon
the hearing of the substantive application, the order shall lapse.

6.4.7 Extension of interim orders-Variation/Discharge of an interim orders. A

court order of the same can be obtained from court under section 98 of the
CPA.

6.4.8. Discharge may be on the following grounds.

Material non-disclosure on ex parte application

Plaintiff’s non- observance of the terms of the grant of the injunction

Material changes in circumstances since the grant

The facts do not justify the grant

Plaintiff’s failure to prosecute the substantive claim sufficiently and expeditiously

That the effect of the injunction is oppressive or interferes with the rights of the third
parties

6.4.9. Orders for contempt of court.

Several court decisions that have recognized the common law concept of contempt
of court . see the case of Florence Drawaru vs Angumale Albino & Samuel
Ondoma, Miscellaneous Civil Application No. 96 of 2016 Justice Mubiru cited
several persuasive authorities from various jurisdictions as he expounded on the
concept of contempt of court. Justice Mubiru also expounded on the concept of a
third party litigant who files a suit to bring to the attention of court acts of criminal
contempt which are not committed in the face of the court.

See also the Judgment of Hon. Justice Ssekaana Musa in Nsangiranabo v. Col
Kaka Bagyenda and Anor (Civil Miscellaneous Application 671 of 2019).
Therefore whereas contempt proceedings are between the Court and alleged
contemnor, the contemptuous acts can be brought to the attention of the Court by
any person, including a person who is not a party to the court proceedings from

54
which the contempt arose. see the case of Uganda Super League v. Attorney
General, Constitutional Application No 73 of 2013, Justice Kiryabwire, citing
Black’s Law Dictionary 7th Edition defines contempt of Court as “conduct that defies
the authority of dignity of court.” Halsbury’s Laws of England, Vol 9 Fourth Edition
classifies contempt of court into two categories: Criminal contempt which is
committed by word or acts that impact Administration of justice. Civil contempt which
arises when there is disobedience to judgement, orders or other Court processes
and this involves Osborne’s CONCISE Law Dictionary as quoted in the cases of
Mutambo Wepukhulu v. Wasswa Balunywa and 2 Ors., Miss Application No
276/2012 and in the case of Stanbic Bank (u) Ltd and Jacobson Uganda Power
plant Co Ltd v. Commissioner General URA, Miscellaneous Application No
0042/2016, aided court in observing that a party which knows of a court order cannot
be permitted to disobey it. Further in the case of Uganda Super League v. Attorney
General(Supra), court noted that course of conduct which abuses and makes a
mockery of the judicial process and which this extends its pernicious (harmful)
influence beyond the parties to the action and affects the interest of the public in the
administration of justice, is contempt of Court. In this definition of contempt of Court
is any conduct which abuses and makes a mockery of the judicial processes and
which thus extends its pernicious influence beyond the parties to the action, is
contempt of Court. This is because the public has an interest and a Stake in the
effective and orderly administration of justice. In the case of Jack Erasmus
Nsangiranabo v. Col Kaka Bagyenda and Anor, Miss App No 671 of 2019 Court
held that there is a clear distinction between proceedings for contempt initiated by
the Court on motion and those initiated as a Civil Contempt by the motion of a
private litigant. A proceeding of Civil contempt is regarded as a form of execution
and enforcement of the order alleged to have been isolated to the detriment of a
private party of a private party. A civil proceeding for contempt is a form of an appeal
for execution or enforcement of a Courts’ order for the benefit of a party. The right of
a private party to move Court for Civil Contempt is therefore regarded as remedial
and it is governed by the limits of the civil jurisdiction of Court.

The authority to punish for contempt of court has always been exercised by the
judiciary from times immemorial; essential to the execution of their powers and to the
55
maintenance of their authority. The source of this power can be traced to the primary
function of the Courts, which is to dispense and administer justice. See Gilbert
Ahnee v. Director of Public Prosecutions [1999] 2 AC 294 A contempt of court is
a matter which concerns the administration of justice and the dignity and authority of
judicial tribunals. The law dealing with contempt of courts is for keeping the
administration of justice pure and undefiled; and, jurisdiction in contempt is not a
right of a party to be invoked for the redressal of its grievances. It is well established
that Rule of Law is a basic feature of the Constitution, and the Rule of Law is
postulated in the Constitution in the sense of its supremacy. It entails inter alia the
right to obtain judicial redress through administration of justice, which is the function
of the Courts, and is imperative for the functioning of a civilised society. To
administer justice in an undefiled manner, judiciary, as the guardian of Rule of Law,
is entrusted with the extraordinary power to punish misconduct aimed at undermining
its authority or bringing the institution into disrepute, whether outside or inside the
courts. The law for contempt, with power of imposing punishment, ensures respect
for the courts in the eyes of the public by guaranteeing sanction against conduct
which might assail the honour of the courts. Indeed, the courts must be able to
discharge their functions without fear or favour. However, any insinuation to
undermine the dignity of the Court under the garb of mere criticism is liable to be
punished. Freedoms guaranteed by the Constitution such as freedom of speech,
should never be used to attack judicial officers in execution of the Constitutional
mandate and their independence ought to be protected as provided under Article
128(2); see Aswini Kumar Ghose & Anr. v. Arabinda Bose & Anr., AIR 1953 SC
75, the Supreme Court held that while fair and reasonable criticism of a judicial act in
the interest of public good would not amount to contempt, it would be gross contempt
to impute that Judges of the Court acted on extraneous considerations in deciding a
case. see Rustom Cowasjee Cooper v. Union of India, AIR 1970 SC 1318, the
Constitution Bench of the Supreme Court observed: “We are constrained to say also
that while fair and temperate criticism of this Court or any other Court even if strong,
may be actionable, attributing improper motives, or tending to bring Judges or courts
into hatred and contempt or obstructing directly or indirectly with the functioning of
Courts is serious contempt of which notice must and will be taken. Respect is

56
expected not only from those to whom the judgment of the Court is acceptable but
also from those to whom it is repugnant. Those who err in their criticism by indulging
in vilification of the institution of Courts, administration of justice and the instruments
through which the administration acts, should take heed for they will act at their own
peril.” Similarly, in Advocate-general, State of Bihar v. Madhya Pradesh Khair
Industries & Anr., AIR 1980 SC 946, the Supreme Court opined: “While we are
conscious that every abuse of the process of the Court may not necessarily amount
to Contempt of Court, abuse of the process of the Court calculated to hamper the
due course of a judicial proceeding or the orderly administration of justice, we must
say, is a contempt of Court. ………. it may be necessary to punish as a contempt, a
course of conduct which abuses and makes a mockery of the judicial process
……….. The Court has the duty of protecting the interest of the public in the due
administration of justice and, so, it is entrusted with the power to commit for
Contempt of Court, not in order to protect the dignity of the Court against insult or
injury as the expression "Contempt of Court" may seem to suggest, but, to protect
and to vindicate the right of the public that the administration of justice shall not be
prevented, prejudiced, obstructed or interfered with.”

The principles governing contempt proceedings was stated in Chuck versus

Cremer (I Coop Tempt Cott 342,), that;A party who knows of an order whether null
or regular or irregular, cannot be permitted to disobey it”. see Barbra Nambi versus
RaymondLwanga H.C.M.A No.213 of 2017, where Justice Flavia Senoga Anglin,
defined contempt of Court to; “Consists of conduct which interferes with the
administration of justice or impedes or perverts the course of justice.” She also
added that; “Civil contempt consist of a failure to comply with a judgment or order of
a Court or breach of an undertaking of Court”.

The conditions necessary to prove contempt of court are laid down in the case of
Hon. Sitenda versus Secretary General of the East African Community Ref
No.8/2012 where court held that, "The position of the law is clear, as long as court
orders are not discharged, they are valid and since they are valid, they should be
obeyed. That being the case, the only way in which a litigant can obtain reprieve
from obeying a court order before its discharge is by applying for and obtaining a

57
stay. As long as the order is not stayed, and is not yet discharged, then a litigant who
elects to disobey it does so at the risk and pain of committing contempt of court." The
grounds are that;

a). The existence of a lawful order,

b). The potential contemnors has knowledge of that order,

c) The potential contemnors’ failure to comply ie disobedience

Remedies

Brahma Prakash Sharma and Others vs The State Of Uttar Pradesh (1954 AIR
10, 1954 SCR 1169) the court stated as follows; “ It admits of no dispute that the
summary jurisdiction exercised by superior courts in punishing contempt of their
authority exists for the purpose of preventing interference with the course of justice
and for maintaining the authority of law as is administered in the courts. It would be
only repeating what has been said so often by various judges that the object of
contempt proceedings is not to afford protection to judges, personally from
imputations to which they may be exposed as individuals; it is intended to be a
protection to the public whose interests would be very much affected if by the act or
conduct of any party, the authority of the court is lowered and the sense of
confidence which people have in the administration of justice by it is weakened. The
power to punish for contempt is a rare species of judicial power which by the very
nature calls for its exercise with great care and caution. Such power ought to be
exercised only where “silence is no longer an option.”

Further according to the Halsbury’s Laws of England Vol. 9(1) paragraph

492, civil contempt “Is punishable by way of committal or by way of
sequestration... Civil Contempt may also be punished by a fine, or an injunction may
be granted against the contemnor.”

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6.5. Security for costs before judgement

O. 26 r 1, 2 and 3

This is money paid into court out of which an unsuccessful plaintiff will be able
satisfy any eventual award of costs made against him.

The defendant may apply for security of costs by way of chamber summons. O.
26r3

The defendant can make this application if any the following conditions arise.

I) The plaintiff is ordinarily resident out of the jurisdiction and has no

substantial property within the jurisdiction see Rohini Danji Sidra v
Frenzy Danji Sidra and Ors SCCA No. 60 1995
II) Where the plaintiff ( not being one who is suing in a representative
capacity) is suing for the benefit of some other person and there is no
reason to believe that he will be unable to pay costs of the defendant if
ordered to do so.
III) Where the plaintiff’s address is not stated in the plaint or is incorrectly
stated therein
IV) Where the plaintiff has changed his address during the course of the
proceedings with a view to evade the consequences of litigation.
V) Where the limited liability company is impecunious and under
liquidation. This condition is only available to a plaintiff that is a limited
liability company. see GM combined (u) ltd v AK Detergents ( U)
Limited , SCCA No. 34 of 1994

6.5.1 If any of these conditions arise, then the defendant has to prove the
following;-

i) That the applicant/defendant is being put to undue expense of

defending a frivolous and vexatious suit
ii) The applicant/defendant has a good defence to the suit

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 iii) The application is likely to succeed.
See Namboro v Kaala (1975) HCB 315, Ochembe vs Sentamu
(1977) HCB 193

The defendant should also take into considerations the factors which the court
should take into account when dealing with such an application were listed in the
case of Lindsay Parkinson and Company Limited vs Triplan Limited (1973) 1
QB 609

1. The plaintiffs claim is bonafide and not a sham

2. Whether the plaintiff has a reasonably good prospect of success ( though the
court should not embark on the merits of the case at this stage)
3. Whether the defendant has made any admissions of the plaintiff’s claim on
the pleadings or elsewhere
4. Whether the defendant has made any payment into court or made an open
offer of payment in settlement
5. Whether the plaintiff’s impecuniosity has been caused by the defendant’s
conduct
6. Whether the application for security is being made oppressively or in order to
stifle a genuine claim
7. Whether there has been a delay in making the application ( which should be
made as early as possible)
Effect of failure to the furnish costs ordered leads to the dismissal of the suit as is
seen in o. 26 r2

6.5.2 Arrest and attachment before judgement

Section 64(a) & (b) CPA.

O. 40r 1

Pyarali Datardini vs Anglo American Park (1930) 4 ULR 28

However where the defendant fails to show cause then O. 40 r 2 applies.

However there are exceptions to this rule as is provided in O. 40 r 2 (1)

The plaintiff can make this application if any of the following conditions arise.

60
 i) The plaintiff’s suit must be prima facie ie the cause of action in the plaint
is unimpeachable.
ii) The court must believe that there is a real danger that the defendant will
remove himself from the ambit of the powers of the court.

Take note of O. 40 r 4 and 5

If any of these conditions arise, then the applicant has to prove the
following;-

I) That the defendant is about to dispose of the whole or any part of

his property
II) That the disposal is with the intention of obstructing or delaying
the execution of any decree that may be passed against him.

6.5.3 Minimizing multiplicity of suits through;

(a) Consolidation of suits,

see O.11(1)
Order 11 rule (1) of the Civil Procedure Rules S.I 71-1 provides as follows:

Where two or more suits are pending in the same court in which the same or similar
questions of law or fact are involved, the court may, either upon the application of
one of the parties or of its own motion, at its discretion, and upon such terms as may
seem fit-

a. order a consolidation of those suits; and

b. direct that further proceedings in any of the suits be stayed until further order.

In Stumberg and another v Potgeiter (1970) EA 323, court held that consolidation
of suits should be ordered where there are common questions of law or fact,
consolidation of suits should not be ordered where there are deep differences
between the claims and defence in each action.

Further in Teopista Kyebitama v Damiyano Batuma (1976) HCB 276, it was held
that it is well established that where two or three suits are filed involving the same

61
parties and arising from the same cause of action, they should either be consolidated
for purpose of determining liability or only one of them, first in point of time heard
first.

(b) Selection of test suits. This is provided for under O.39 of the CPR.

However in O.39(1)

Here one has to prove that two or more persons have instituted suits against the
same defendant and those persons could have been joined as co-plaintiffs in one
suit. The court may if satisfied that the issues to be tried in each suit are precisely
similar, make an order directing that one of the suits be tried as a test case and
staying all steps in other suits until the selected suit has been determined or shall
have failed to be a real trial of the issues.

 Kasija and another vs Barclays Bank of Uganda Ltd Mis app 88 0f 2019
The court held that one has to prove that there are several suits by several
plaintiffs against a similar defendant and that these plaintiffs could have
been joined as co. plaintiffs under o. 1 r 1

 Amos vs Chardwick (1879) 9 CHD 459, To have a test suit, all issues and
evidence in the action should substantially be similar and if the court is
satisfied that the issues that are to be tried are precisely similar, it may
make an order that one of the suits should be tried as a test case and
stay all steps in other suits until the selected test case has been
determined.

Read O. 399(2) as it is an application move by the defendant.

6.5.4 Scheduling conference.

O. 12 r1 and 2.

This is done before the trial judge.

The joint scheduling memorandum and joint trial bundle shall be on the courts
record.
62
Here both counsel will own/ adopt the joint scheduling memorandum together with
the trail bundles so as to have the case ready for and fixed for hearing should ADR
not have been successful. When framing issues, the court is guided by O. 15 of the
CPR.
Rule 5 of the Civil Procedure (Amendment) Rules inserted R. 5A in O. 18 of the Civil
Procedure (Amendment) Rules, after the scheduling conference, the evidence of the
witness shall consist of a witness statement. These witness statements shall have to
comply with guideline 4(p) as provided in schedule 2 of O.11A, r 7 (2).
Holding a scheduling conference in civil matters is mandatory. See Stanbic Bank
(Uganda) Ltd v Uganda Cros Limited SCCA No. 4 of 2004.
Read O. 12 r 2

6.5.5 Hearing of suits;

O. 18, O. 17 and O. 16 of the CPR.

Take note that O. 17 r 5 and 6 was amended by R. 4 of the civil procedure
(Amendment) Rules, 2019.
For O. 9r 20 and O.17 r 4 , see ABC Impex Africa (U) Ltd v Ssentongo Haruna
t/a Haruna Enterprises Civil Suit No. 899 of 2017[commercial court]. For order
18 Rule 13 which should be read together with sect 164 of the Evidence Act.
Here the court is given wide discretion to recall any witness who has been examined
and may put questions to him or her as the court thinks .Kindly see Onek& Ors v
Omona Civil Appeal No. 32 of 2016.This provision of the law is not a licence to a
Court to summon witnesses at its own motion, who have not been summoned by
either party.
Then for O.16 r19 and O. 16 r 14 see UDB VS National Insurance Corporation,
GM Combined, CA (SC) No. 28 of 1995.

63
6.5.6 Burden of proof and standard of proof;

The burden of proof lies on he who alleges. See Section 103 of the Evidence Act
Cap 6 ad the standard of proof is on a balance of probabilities. see Cross and
Tapper on Evidence -8th Edition.

6.5.7 Locus visits in land matters;

-Pre locus visits in land matters.

See O11a r 3(2)
-Locus in quo visits
See Practice Directions No. 1 of 2007
The practice of visiting the Locus in quo is to check on the evidence by the witness
and not to fill the gaps in their evidence for them or lest the court may run the risk of
turning itself into a witness in the case. see Fernandes V Noroniha ( 1969) EA 506,
De Souza v Uganda (1967) EA 784, Yaseri Waibi v Edisa Byandala (1982 ) HCB
28 and Nsibambi v Nankya (1980) HCB 28.
The Court has to observe the following standard operating procedures at locus in
quo. see Bongole Geoffrey and 4 Ors v Agnes Nakiwala Civil Appeal No. 0076
of 2015( Court of Appeal), David Acar and 3 ors vs Alfred Acar Aliro (1982)
HCB 60, Alimarina Okot & 4 ors v lamoo Hellen High Court Civil Appeal No. 026
of 2018 ,
1. Ensure that the parties , their witnesses and advocates are present
2. Allow the parties and their witnesses to adduce evidence at the locus in quo in
a court room setting see Onek & Ors v Omona Civil Appeal No. 32 of 2016
3. Allow cross examination by either party or his or her counsel
4. Record all proceedings at locus in quo
5. Record any observations, views, opinions or conclusions of the court including
drawing a sketch plan if necessary.
In the case of Safina Bakulima and Ors v Yusuf Musa Wamala CA 68 of 2007,
court held that the court moves to the locus in quo in deserving cases where it
needs to verify the evidence that has been given in court on the ground. Also see
Mukasa v Uganda (1964) EA 698

64
6.5.8 Submissions (written and oral);

These are used by the parties or their advocates to point out to the court the material
facts which each party has to establish in his favour, the strength on the party’s case
both as to the evidence adduced to answer the issues raised for determination and
the applicable law. They are also used to point out the weakness in an opponent’s
case. These submissions are made after the case has been closed.
6.5.9 Contents of a ruling and a judgement.

O. 21 r1, 2, 3, 4 & 5 of the CPR

6.6. Recusal of judicial officers;

Constitutional court (Recusal of Judicial Officers) Practice Directions 2019

Rule 5 a judicial officer may on the application of the parties or on his or her motion
recuse himself or herself from any proceedings.

Rule 6 sets out circumstances under which a Judicial Officer may on his own
instance disqualify him/herself from handling a particular matter.

Rule 7 provided the instances under which a judicial officer‘s recusal may be sought.

Rule 7 para 8 provided that a party who seeks the recusal of a judicial officer shall do
so by way of letter copied to all the parties and the Registrar of the court or orally in
open court in the presence of the parties, request the judicial officer to recuse
himself or her self.
see Male Mabirizi K Kiwanuka v The Kabaka of Buganda Civil Apeal No. 13 of
2018, Male Mabirizi K Kiwanuka v Attorney General Mis Application No. 089 of
2022,Republic v Raphel Muoki Kalungu High Court Criminal Case No. 77 of
2014, Male Mabiraizi v Attorney General & Hon Lukwago Erias & Ors v
Electoral Commission & Ors High Court Miscellaneous Cause No. 237 & 431
of 2019, Locabali (UK) Ltd v Bay Field Properties ltd & ors (Consolidated)

65
20001ALLER 64, Re application for Recusal of Owiny Dollo CJ by Male
Mabirizi Civil Miscellaneous Application No. 3 of 2021

6.6.1 Reference List

Statutes

1. Judicature Act Cap 13;

2. Civil Procedure Act, Cap 71.

Rules/ Regulations
1. The Civil Procedure Rules as Amended by SI 33/2019
2. The Constitution (Recusal of Judicial Officers) Practice) Directions SI
07/2019.

3. Practice Directions No. 1 of 2007.

Cases

1. Stephen Kasozi & 3 Ors vs. Peoples’ Transport Services Ltd (1993) III KALR
80
2. Miller vs Minister of Pensions (1947) 2 ALLER 372.
3. Erias Sewava Ssalongo and 18 ors vs. Richard Male Mukasa & 2 ors High
Court Revision case No. 034 -2018.
4. Kiyimba Kaggwa vs. Abdul Nasser Katende [1985] HCB 43.
5. Hon Theodore Ssekikubo & Ors vs. Attorney General & Ors Constitutional
Application No. 4 0f 2014(SC).
6. Attorney General vs. The Independent (1987) 3 ALLER 385.
7. Creatanor Maritime Company limited vs. Irish Marine Management Limited
( 1978) 1 WLR 96
8. Housing Finance Bank Ltd & Ors vs. Edward Musisi Miscellaneous
Application No, 158 of 2010
9. G.M. Combined (U) Ltd vs. A.K. Detergents (U) Ltd. (1) (Civil Appeal No. 34
of 1995) [1996] UGSC 11.
10. Potgieter vs. Stumbert (1967) EA 609.

66
 11. Springs International Ltd vs. Hotel Diplomat Ltd & Anor. HCCS
No.227/2011.
12. ABC Impex Africa (U) ltd vs. Ssentongo Haruna t/a Haruna Enterprises Civil
Suit No. 899 of 2017(Commercial court).
13. UDB vs. National Insurance Corporation, GM Combined, (Civil Appeal No.
28 of 1995) [1996] UGSC 5

14. Male Mabirizi K Kiwanuka v The Kabaka of Buganda Civil Apeal No. 13 of
2018

15. Male Mabirizi K Kiwanuka v Attorney General Mis Application No. 089 of
2022
16. Republic v Raphel Muoki Kalungu High Court Criminal Case No. 77 of 2014
17. Male Mabiraizi v Attorney General & Hon Lukwago Erias & Ors v Electoral
Commission & Ors High Court Miscellaneous Cause No. 237 & 431 of 2019
18. Locabali (UK) Ltd v Bay Field Properties ltd & ors (Consolidated)
20001ALLER 64
19. Re application for Recusal of Owiny Dollo CJ by Male Mabirizi Civil
Miscelleneous Application No. 3 of 2021

7.0 MODULE FOUR: EXECUTION

7.1 Introduction

Under this module, we are introducing students to judgements, rulings, extraction of

orders, extraction of decrees and execution processes.

7.2 Aim of the module

The aim of the module is to;

1. Develop ability to advice on execution processes in civil litigation;

2. Develop ability to undertake execution processes in civil litigation;

67
 3. Recognise ethical issues relating to execution processes in civil litigation.

7.3 Learning outcomes:

By the end of this module students will be able to;-

1. Explain execution processes in civil litigation;

2. Illustrate execution processes in civil litigation;

3. Draft appropriate documents relating to execution processes in civil litigation;

4. Recognise and deal with ethical issues relating to execution processes in civil
litigation.

7.4 Outline of content

1. Principles in the execution process;

2. Rights available to a successful party in the execution process;
3. Appropriate modes of execution available to a successful party;
4. Appropriate remedies available to a person facing an illegal/irregular
execution process;
5. Execution proceedings by or against the Government and its agencies;
6. Execution proceedings by and against Local Government Councils;
7. Garnishee proceedings;
8. Self-executing orders;
9. Stay of execution.

7.4.1 Principles in the execution process;

Courts execute decrees and not judgements. O. 22r1 CPR

Contents of a decree O. 21r 6 & 8 CPR.

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Execution process must affect only parties to a suit. Kanyabikal & ors v AG (1987)
HCB 47.
Preparation of a decree or order O. 21 r7 , Interfrieght Forwarders (U) Ltd vs east
African development Banks SCCA No. 33/1992.

The timelines within which to institute applications for execution are provided for in
sect 35(1) CPA however be mindful of the exceptions in sec 35(2) CPA
Bazilio Kivumbi v Iburahim Ismeal (1972) 2 ULR 72
In case of a Local government Council, the execution will commence after 6 months
from the date of decree Sec 6 (2) LGA

Therefore it is the duty of the successful party to extract a decree. Asadi v

Livingstone Ola (1985) HCB 50

However, it would be courteous if a demand for payment is made before the

successful party files an application for execution.

Rights available to a successful party in the execution process;

He can make a demand of payment for the decretal sum and if that does not work
out then he can enforce the decree.

Execution cannot issue against a non-party to the suit. see Rajimpex Vs national
Textiles Board HCCS 1033 of 1986(UR)

He has a right to execute the decree within 12 years sect 35 civil procedure act

The decree holder has to select the appropriate means of execution of his decree
subject to the discretion of court. see Mandavia Vs Rattan Singh (1968) EA 146 at
149

Nothing can prevent a judgement holder from applying for several modes of
execution. see O. 22 r 27 and Beatrice D’Souza Vs Sachodina (1964) HCB 117

However the court may also refuse simultaneous execution by allowing the decree
holder to avail only one mode of execution at a time. see O. 22 r18

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Every transferee of a decree shall hold the same subject to equities, if any which the
judgment debtor might have enforced against the original decree holder. see
Section 36 CPA

Incase the judgement debtor dies before the decree has been satisfied, the holder of
the decree may apply to court which passed it to the same against the representative
of such deceased or against such a person who has intermeddled with the estate of
such a deceased. see Section 37 CPA

Kindly take note of Section 39 where enforcement is for a decree against a legal
representative

7.4.2 Examination of judgement debtor

see Order 22 rule 38

Republic of Costa Rica vs Strusberg (1880) 16 ChD 8 at 13 the examination is not

only intended to be examination but to cross examination and the debtor must also
answer questions relating to any property that he has or other means of satisfying
the judgement and he may be required to answer questions relating to assets that he
may have oversees. see Interpool limited vs Galani (1988) QB 738

A judgement debtor who disobeys an order to attend for an oral examination as to

his or her means may be committed to prison for contempt.

7.4.3 Appropriate modes of execution available to a successful party;

Section 38 CPA
Section 44 of the CPA provides for the property liable to attachment and sale in
execution of a decree. see John Immaniraguha v Uganda Revenue Authority,
Mis Appl No. 2770 of 2023

7.4.4 Appropriate remedies available to a person facing an illegal/irregular

execution process; see Mulenga v Photo Focus (U) Ltd (1996) 6 KALR 19

70
A third party who has suffered a legal grievance is entitled to commence objector
proceedings or institute a fresh suit or an application for setting a side the
decree/order.
i) Questions to be determined by executing court
see Section 34 CPA Francis Micah v Nuwa Walkira SCCA No. 24 of 1994.
Here the executing court cannot go behind the decree. It has to execute it as it is and
should not question its correctness. Even if it is vague, the duty of the executing
court is to interpret the decree and find out the meaning of the terms used.

ii) Setting aside an irregular execution

An irregular execution is one where any of the requirements of the rules of court or of
the practice for the time being have not been complied with. Therefore the registrar
will in general set aside the warrant of execution. The court will then make an order
for restoration since the wrongful execution is trespass. James Kabaterine vs
Charles Oundo and Ors HCCA 177 of 1994 .

The object of these rules is not merely to preserve the immovable property but to
ensure that they are not sold at inadequate prices and should be attached as a last
resort. Habre International and Others vs Ibrahim Alarakhia HCCS No. 191 of 1992.

The setting aside of the a warrant on the ground of irregularity does not prevent the
plaintiff from issuing and executing another warrant

The defence of bonafide purchaser from the bailiff will be good though the execution
is irregular unless it was altogether void, Bushell vs Timson (1932) “ KB 79

Irregularity will not vitiate sale but any person injured may sue O. 22 r 71.

The Registrar has supervisory power over court bailiffs and has to oversee execution
proceedings since he is the one who issues the orders and directions. Catherine
Nakkazi vs Kirunda and ors HCCA No. 73 of 1995.

iii) Wrongful execution

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This is when the execution is neither authorised nor justified by the warrant of
execution or by the judgement. It is wrongful if an endorsed warrant directs a bailiff to
levy at a wrong address or on goods of another person who is not a judgement
debtor. Parrot vs Sempala (1978) HCB 51 & Sinba (K) , Haba group ( U) Ltd& Ors
v UBC , SCCA No. 3 of 2014

A bailiff has a duty to ensure that he is executing a lawful order at least when he is in
doubt Fenekansi Semakula vs Musoke (1981) HCB 46.
Where a bailiff acts diligently, he will be protected from civil liabilities sec 46(2)
Judicature act.

7.4.5 Objector proceedings

O. 22 r 55, 57, 58& 56 of the CPR

Kisambira Sentamu v Ecima & Ors (2006) HCB 151,152
Namusisi Talisuna Robinah V Kenroy Investments Ltd HCMA No. 185/2013
Hiral & Co. v Buganda Industries Ltds (1960) 318

7.4.6 Execution proceedings by or against the Government and its agencies;

Section 19-21 of the GPA and Rules 14 -17 of the Government proceedings (Civil
Procedure ) Rules

Section 19 (4) of the Government Proceedings Act provides;

“Except as is provided in this section, no execution or attachment or process in the

nature of an execution or attachment shall be issued out of any court for enforcing
payment by the Government of any such money or costs as are referred to in this
section, and no person shall be individually liable under any order for payment by
the Government, or any Government department or any officer of the Government
as such, of any such money or costs.”

Rule 15(a) of the Government Proceedings (Civil Procedure) Rules provides;

“Where an order of the kind mentioned in section 19 of the Government

72
Proceedings Act has been made, the following provisions of the principal

Rules shall not apply—(a) Order XXII (Execution of decrees and orders)”;

see Attorney General & Anor v Namaiba Tea Estates Ltd (Miscellaneous
Application 758 of 2012)

General principles against the Government

I. Execution proceedings against Government commence after a grace period

of 21 days from the date of the decree.
II. Execution by way of attachment of Government property is not permitted
III. Government does not suffer liability on a suit commenced against her by
summary procedure. R. 17(2) & (3) Government Proceedings ( Civil
Procedure ) Rules
IV. No Judgement in default shall be made against Government entered without
leave of court. R 6 Government Proceedings ( Civil Procedure ) Rules

Steps to follow during execution proceedings against the Government

1. Extract a decree
2. Draft a bill of costs and tax inter parties and obtain certificate of taxation
3. Make application for a certificate of order sec 19(1) GPA. It is before the
Registrar 14(1) GPCPR, it is by NOM R3(b) GPCPR
4. Serve decree together with a certificate of order under cover letter providing
account number of the beneficiaries j/creditor
5. 5. AG to transmit the certificate of order to the treasury officer of account to
appropriate payments.
Where the same are not effected within a reasonable time, take out mandamus
proceedings against such public officer.
The application is made under sec 36(1)(a), 37 of the Judicature Act.

This application is made ex parte to a judge in chambers rule 4(2)

73
see Intex Construction Ltd vs AG and ors HCMC No. 737 of 2013 provides for
the grounds for mandamus.
(i) The applicant enjoyed a right
(ii) The right is specified by a decree of court
(iii) A certificate of order was extracted and served onto AG
(iv) The respondent has refused to pay the decretal sum in the certificate of order.
see Goodman Agencies Ltd & 3 Others Vs Attorney General & Treasury
Officer of account Misc. Appl. No.126 of 2008,

Incase an order of mandamus is granted and such officer is still refusing to comply,
the court can make orders for contempt of court to show cause why such an officer
should not be committed to civil prison. Sebuliba v Treasury Officer ,
Miscellaneous Application No. 127 of 1992

7.4.7 Execution proceedings by and against Local Government Councils;

General principles
(i) Execution can commence after 6 months from the date of the decree
(ii) Property of LG can be attached and sold apart from fixed assets, statutory
grants and released meant for service provision , staff salaries and
infrastructure development. see Section 5 of Local governments
( Amenedment) Act , Act 13
7.4.8 Garnishee proceedings;

Ganisee order/ attachment of debt cannot ensue against Government.

Section 19 (4) of the Government Proceedings Act provides;

“Except as is provided in this section, no execution or attachment or process in the

nature of an execution or attachment shall be issued out of any court for enforcing
payment by the Government of any such money or costs as are referred to in this
section, and no person shall be individually liable under any order for payment by
the Government, or any Government department or any officer of the Government
as such, of any such money or costs.”
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Rule 15(a) of the Government Proceedings (Civil Procedure) Rules provides;

“Where an order of the kind mentioned in section 19 of the Government

Proceedings Act has been made, the following provisions of the principal

Rules shall not apply—(a) Order XXII (Execution of decrees and orders)”;

Attorney General & Anor v Namaiba Tea Estates Ltd (Miscellaneous

Application 758 of 2012).

Garnishee proceedings against Local Government and Statutory Bodies have

to comply with the requirements in Public Finance Management Act, Act 3 of
2015

Section 38 (c) CPA and O. 23 (1) CPR provides for garnishee proceedings.

The conditions to satisfy are

(i) The applicant/ JC/ decree holder has a decree issued by the honorable court
for recovery of money against the JD
(ii) Such a decree has remained unsatisfied
(iii) There is an existing debt between the garnishee and the JD , which monies
are still in possession of the garnishee
(iv) The garnishee is within the jurisdiction of the court
see Unique Holdings vs Business Skills Trust Ltd MA 402 OF 2012

The type of debt has to be a debt which the debtor can enforce if he so desire
Sunder Dass vs Municipal Council of Nairobi (1948) 5EACA 33 and it must be a
debt that the law recognizes. Lucas vs Lucas and High Commissioner for India
(1943) 2 ALLER 110
Section 44 of the CPA provides that debts and in particular money is one of
properties that can be attached.

PROCEDURE;-

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The application for attachment of debt will be made ex-parte to the court that issued
the decree with supporting affidavit by way of chamber summons (O. 23 r 10)
The affidavit will clearly state the conditions discussed above ie;-
 The applicant/ JC/ decree holder has a decree issued by the honorable
court for recovery of money against the JD
 Such a decree has remained unsatisfied
 There is an existing debt between the garnishee and the JD , which
monies are still in possession of the garnishee
 The garnishee is within the jurisdiction of the court

Garnishee proceedings are two stage phased.

The first stage is for the judgement creditor to apply ex parte and if an order nisi is
granted, it shall be served within seven days on the garnishee and judgement
debtor. O.23 r1.

The court has discretion as to whether the order nisi should be granted see
Makumbi vs NIC (1979) HCB 230
An order Nisi operates as an injunction preventing the bank from paying the money
to its customer until the garnishee order is made absolute. O. 23 r2 Joachimson vs
Swiss Bank Corp (1921) 3 KB 110 at 131

The second stage is the discretion the court has to make the order nisi absolute. The
court should be have regard to other creditors as far as they are known to the court
and the court should be satisfied that there is an existing debt.

So under O. 23 r3 CPR the order absolute can be issued if-

The garnishee does not dispute her debt due to the JD
- Fails without justification to appear and on the hearing date. such a failure will
be deemed as an admission of the liability between him and the JD
seePritchard vs Westminister Bank Ltd (1969) 1 ALLER 999

76
O. 23 r 7 effect of payment by the garnishee serves as a valid discharge against the
JD to the amount paid or levied even where the proceedings leading to the order
were set aside.

7.4.9 Self-executing orders;

These are orders which once extracted and served, the execution is deemed
complete.
Kyambogo University vs Prof Isaih Omolo Ndiege COA C Appln No. 19/2007.

7.5 Stay of execution.

The court has discretionary power to grant a stay of execution. The purpose of a stay
of execution is that where it appears to be equitable, the status quo is temporarily
preserved. see National Enterprises Corporation v Mukisa Foods Miscellaneous
Civil application No. 7 of 1998 at page 7.
Therefore as a general rule, the applicant has to show the court that once the
decretal property id disposed of, there is no likelihood of setting it back should the
appeal succeed.
see O. 22r 26.
The jurisdiction of the court to stay execution where there is a pending suit stems
from sec 98 of the CPA which preserves the inherent powers of the court other than
O.22r26.
Lawrence Musitwa Kyazze v Eunice Busingye SCC Appln No.02/1990.

Under O. 22 r 23 r(1) & 3 a stay of execution is applicable where a decree has been
transferred from one magistrates court to another for purposes of effecting an
execution process against the Judgement debtor . One of the conditions the
applicant has to rely on for the application to be granted is the deposit of security for
costs.

The basic requirement that must be satisfies by an applicant for the grant of interim
orders for stay of execution were spelt out in the several cases.

77
 1. Hon Mukasa Fred Mbide & Hon Mike Mabike v The Law Development
Centre Supreme Court Miscellaneous Application No. 15 of 2015,
Francis Drake Lubega v Attorney General Supreme Court Miscellaneous
Application No. 13 of 2015, Mohamed Mohamed hamid v Roko
Construction ltd supreme Court Mis appl No. 23 of 2017 , Tropical
Commodities Supplies ltd v International Credit bank (in Liquidation)
2004 EA 331.

it is important to take note that it is possible and proper to apply for setting aside and
staying an execution in one application as long as the application refers to the
correct provisions of the law. see Magem Enterprises Limited v Uganda
Breweries Limited HCCS No. 462 of 1991

7.6 Reference List

Statutes

1. The Constitution of the Republic of Uganda, 1995.

2. The Judicature Act, Cap. 13
3. The Civil Procedure Act, Cap. 71

4. The Magistrate’s Court Act, Cap. 16.

5. The Local Government Act, Cap 243
6. The Local Government (Amendment) Act, Act 13 of 2001
7. The Local Government ( Amendment) Act , Act 16 of 2015
6. The Government Proceeding Act, Cap 77
7. The Evidence Act, Cap. 6.
8. The Public Finance Management Act, Act 13 of 2015

Rules

78
1. Civil Procedure Rules SI 71-1 (O. 21 rls 6, 7 (2), 10; O. 22 rls. 7, 8, 10, 14,
19,21, 32, 33, 38, 40, 41, 42, 51, 55, 56, 57, 58, 60, 72, 85, 86, 87, 89, CPR; O. 43
r.4 & O. 50 rl 4, 6 & 10 CPR).

2. The Government Proceeding (Civil Procedure) Rules 14, 15 & 16.

3. The Judicature Court Bailiffs’ Rules of 2022 see Sec 2, 4, 5, 6, 7, 9, 11, 12, 15-
23).
4. The Advocates (Remuneration and Taxation of Costs) Rules, SI 13-3

Cases
2. Mandavia vs. Rattan Singh(1964) HBC 117;
3. Bank of Uganda vs. Ajanta Pharma Ltd & Attorney General (Miscellenoeus.
Appeal No. 4/2017 – Execution & Bailiffs Division);
4. Bank of Uganda vs. Metropole Holdings Ltd (Miscelleneous Appeal No.
7/2017 – Execution & Bailiff Division);
5. Attorney General & Anor vs. Namaiba Tea Estates Ltd (Miscelleneous
Application No. 758 of 2012);
6. Lawrence Musitwa Kyazze vs. Eunice Busingye Supreme Court Civil
Application No.18/1990;
7. Kyambogo University vs. Prof. Omolo Ndiege Civil Application No. 341 of
2013
8. Francis Micah vs. Nuwa walakira SCCA No. 23 of 1994 ;
9. Hannington Wasswa -vs- Maria Onyango Ochola SCCA No. 22 of 1993
10. Lawrence Muwanga vs. Stephen Kyeyune SCCA 12 of 2001;
11. Sinba (K) ltd, Haba Group (U) & Ors vs. UBC (Civil Appeal No. 3 of 2014)
[2015] UGSC 21.
12. Tropical Commodities Supplies ltd v International Credit bank (in Liquidation)
2004 EA 331
13. John Immaniraguha v Uganda Revenue Authority , Mis Appl No. 2770 of 2023

79
8.0 TERM THREE
8.1 MODULE FIVE: SPECIALISED PRACTICE IN CIVIL LITIGATION.

8.2 Introduction

Under this module, the student is exposed to Judicial review, constitutional petitions,
fundamental human rights matters and election petitions.

8.3 Aim of the module

The aim of the module is to;

1. Develop ability to advise on specialised practice in civil litigation;

2. Develop ability to undertake specialised practice in civil litigation;
3. Recognise ethical issues relating to specialized practice in civil litigation.

8.4 Learning outcomes:

By the end of this module you will be able to;

1. Explain various principles of specialised practice in civil litigation;

2. Determine grounds of election and constitutional petitions
3. Determine grounds of applications for judicial review and enforcement of
fundamental human rights and freedoms;
4. Present election and constitutional petitions
5. Present applications for judicial review and enforcement of fundamental
human rights and freedoms;
6. Draft documents related to specialised practice in civil litigation;
7. Recognise and deal with ethical issues relating to specialised practice in civil.

8.4.1 ELECTION PETITIONS. We shall read both the PEA AND THE LGA

Pre- election remedies, procedures and documents.

Election of members of Parliament.

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Sec 81. (1) A general election of members of Parliament shall be held within thirty
days before the expiration of the term of Parliament.

(2) Whenever a vacancy exists in Parliament, the Clerk to Parliament shall notify the
Electoral Commission in writing within ten days after the vacancy has occurred; and
a by-election shall be held within sixty days after the vacancy has occurred.

(3) Notwithstanding clause (2) of this article, a by-election shall not be held within six
months before the holding of a general election of Parliament.

(4) Every person elected to Parliament shall take and subscribe the oath of
allegiance and the oath of member of Parliament specified in the Fourth Schedule to
this Constitution.

(5) Except for the purpose of taking the oaths referred to in clause (4) of this article,
no person shall sit or vote in Parliament before taking and subscribing the oaths

Section 15 of the PEA provides for the objection to one’s nomination, after inspecting
nomination papers, challenging the qualifications of a person invalidly nominated.
Section 16 of the PEA provides that any person aggrieved with the decision of the
RO has a right of appeal to the EC and this right is exercisable within 7 days from
the date of the RO’s decision. The Electoral Commission also has the power to
confirm the RO’s decision or reverse the same within 7 days.

Section 4 (11) PEA provides for the right to appeal to the High Court challenging a
decision of NCHE to issue a certificate of equivalence to any candidate.

8.4.2 Post- election remedies procedures and documents

i) Cases of a mandatory recount. Sect 54 PEA

Sec 54 of PEA provides for cases of mandatory recount

(1) Where, after the official addition of the votes—

(a) there is an equality of votes between two or more candidates obtaining the
highest number of votes; or
81
(b) the number of votes separating the candidate receiving the highest number of
votes and any other candidate is less than fifty, the returning officer shall, if
requested in writing by a candidate, a candidates’ agent or a voter registered to
vote in the constituency, in the presence of a senior police officer recount the
votes after giving a written notice of the intention to recount to all interested
parties.

This mandatory recount before the Returning Officer will be done as soon as the
results are declared. There are grounds one has to prove are that there is an
equality of votes between two or more candidates obtaining the highest number
of votes; or the number of votes separating the candidate receiving the highest
number of votes and any other candidate is less than fifty, .

However ;-

(2) Where a recount under this section results in an equality of votes among two
or more candidates obtaining the highest number of votes, a run off election shall
be held involving only the candidates with equal votes; and the election shall take
place not later than thirty days from the date of the recount.

Section 55 PEA provides for the formal recount;-

Application to Chief Magistrate for a recount (1) Within seven days after the date
on which a returning officer has, in accordance with section 58, declared as
elected the candidate who has obtained the highest number of votes, any
candidate may apply to the Chief Magistrate for a recount.

(2) The Chief Magistrate shall appoint the time to recount the votes which time
shall be within four days after receipt of the application under subsection (1) and
the recount shall be conducted in accordance with the directions of the Chief
Magistrate.

(3) A candidate who requests a recount under this section shall deposit with the
Chief Magistrate a security for costs of thirty currency points.

82
 Moses Kasibante v Katongole Singh

The purpose of a recount is to ascertain that the narrow winning majority is not
obtained by mistake through miscalculations or honest oversight. Brenda
Nabukenya v Rebecca Nalwanga .

A recount can not be available where the name of a winning candidate has been
gazetted and has already sworn in as a member of parliament. Ngoma Ngime vs
winnie Byanyima

A petition filed before the results are gazetted is a nullity.

Musitwa Herbert Mulasa vs Electoral Commision and Haji Jakira Mohamed

Ssali CA Election Application number 5 of 2006

8.4.3 Locus to file a petition. ( students are advised to cross read the LGA )

Sec 60 PEA. Who may present election petition

(1) Election petitions under this Act shall be filed in the High Court.

(2) An election petition may be filed by any of the following persons—

(a) a candidate who loses an election; or see Okabe Patrick v Opio Joseph Linos
& EC Election Petition Appeal No. 82 of 2016

(b) a registered voter in the constituency concerned supported by the signatures of

not less than five hundred voters registered in the constituency in a manner
prescribed by regulations. By Laws.Africa and contributors. Licensed under CC-BY.
Share widely and freely. 28 Parliamentary Elections Act, 2005 Uganda see Namujju
Dionizia Cissy & EC v Martins Kizito Ssserwanga Election petition appeal No.
62 of 2016

(3) Every election petition shall be filed within thirty days after the day on which the
result of the election is published by the Commission in the Gazette.

Kamulegeya vs Iddi Kisiki Lubyayi Election Petition no. .. of 2007 and Ronald
Ndaula vs Hajji Naduli Election Petition …2007

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Under the LGA Sec 138. Petition against a declared elected candidate.

(1) An aggrieved candidate for chairperson may petition the High Court for an order
that a candidate declared elected as chairperson of a local government council was
not validly elected.

(2) A person qualified to petition under subsection (3) who is aggrieved by a

declaration of the results of a councillor may petition the chief magistrate’s court
having jurisdiction in the constituency.

(3) An election petition may be filed by any of the following persons—

(a) a candidate who loses an election; or

(b) a registered voter in the constituency concerned supported by the signatures of

not less than five hundred voters registered in the constituency.

(4) An election petition shall be filed within fourteen days after the day on which the
results of the election has been notified by the Electoral Commission in the Gazette.

8.4.4 Grounds of an election petition;-

Sec 61. Grounds for setting aside election

(1) The election of a candidate as a member of Parliament shall only be set aside on
any of the following grounds if proved to the satisfaction of the court—

(a) non-compliance with the provisions of this Act relating to elections, if the court is
satisfied that there has been failure to conduct the election in accordance with the
principles laid down in those provisions and that the non-compliance and the failure
affected the result of the election in a substantial manner;

(b) that a person other than the one elected won the election; or

(c) that an illegal practice or any other offence under this Act was committed in
connection with the election by the candidate personally or with his or her knowledge
and consent or approval; or

84
(d) that the candidate was at the time of his or her election not qualified or was
disqualified for election as a member of Parliament.

Non-compliance with the provisions of this Act relating to elections, if the

court is satisfied that there has been failure to conduct the election in
accordance with the principles laid down in those provisions and that the non-
compliance and the failure affected the result of the election in a substantial
manner;

Mujuni Vicent Kyamadidi vs Charles Ngabirano and EC EPA No. 84 of 2016

Apollo kantiti vs Sitenda sebalu , The independent Electoral Commission and

the Returning officer , Wakiso Cons Election Petition Appeal Nos. 31 and 33 of
2016 and consolidated election Petition Applications No. 5 and 55 of 2016 arising out
of the fore mentioned Appeals. This case goes on to discuss the substantiality test
that was ably discussed in the case of Dr Besigye Kizza vs Museveni Yoweri ,
Supreme Court Presidential Election Petition No. 1 of 2001

Substantiality test is explained in the case of Amama Mbabazi & Ors vs Musinguzi
Garuga James, Election petition Appeal no. 12 of 2002( dictum of Odoki CJ)

That an illegal practice or any other offence under this Act was committed in
connection with the election by the candidate personally or with his or her knowledge
and consent or approval;

Under the LGA

Sec 139 of the LGA. Grounds for setting aside election.

The election of a candidate as a chairperson or a member of a council shall only be

set aside on any of the following grounds if proved to the satisfaction of the court—

85
(a) that there was failure to conduct the election in accordance with the provisions of
this Part of the Act and that the noncompliance and failure affected the result of the
election in a substantial manner;

(b) that a person other than the one elected purportedly won the election;

(c) that an illegal practice or any other offence under this Act was committed in
connection with the election by the candidate personally or with his or her knowledge
and consent or approval; or

(d) that the candidate was at the time of his or her election not qualified or was
disqualified from election

That an illegal practice or any other offence under this Act was committed in
connection with the election by the candidate personally or with his or her
knowledge and consent or approval;

Illegalities once proved to the satisfaction of the court is enough to set aside an
election of a candidate as MP Section 61( C) PEA

Michael Mawanda vs EC and Andrew Martial EPA No. 98 of 2016

Part xi and xii of the PEA deals with illegal practices and offences. Under sect
147-158 of the LGA, illegal practices and offences are provided for.

Sect 87 of the PEA . Prior consent of the D.P.P to prosecute

(1) A person shall not be prosecuted for an offence under this Act without the
consent in writing of the Director of Public Prosecutions.

Sec 88 PEA provides for the time within which criminal proceedings must be
commenced Proceedings against a person in respect of any offence under this Act
shall be commenced within three months after the offence which is alleged to have
been committed or within one month after a court finds, on trial of a petition, that an
offence may have been committed
86
That the candidate was at the time of his or her election not qualified or was
disqualified from election

Art 80, Qualifications and disqualifications of members of Parliament

(1)A person is qualified to be a member of Parliament if that person—

(a)is a citizen of Uganda;

(b)is a registered voter; and

(c)has completed a minimum formal education of Advanced Level standard or its

equivalent which shall be established in a manner and at a time prescribed
by Parliament by law.[paragraph

(2)A person is not qualified for election as a Member of Parliament if that person—
(a) is of unsound mind;

(b) is holding or acting in an office the functions of which involve a responsibility for
or in connection with the conduct of an election;

(c) is a traditional or cultural leader as defined in article 246(6) of this Constitution;

(d) has been adjudged or otherwise declared bankrupt under any law in force
in Uganda and has not been discharged; or

(e) is under a sentence of death or a sentence of imprisonment exceeding nine

months imposed by any competent court without the option of a fine.

(f)has, within the seven years immediately preceding the election, been convicted by
a competent court of a crime involving dishonesty or moral turpitude

(g)has, within the seven years immediately preceding the election, been convicted by
a competent court of an offence under any law relating to elections conducted by the
Electoral Commission.

Sec 4 PEA provides for the qualifications of a member of parliament and

Sec 4(4) PEA resign 90 days before nomination day

87
(4) Under the multiparty political system, a public officer or a person employed in any
government department or agency of the government or an employee of a local
government or anybody in which the government has controlling interest, who
wishes to stand for election as a member of Parliament shall— (a) in the case of a
general election, resign his or her office at least ninety days before nomination day;
and (b) in the case of a by election, resign his or her office at least fourteen days
before nomination day

Art 80(4),

( (3)Under the movement political system, a person elected to Parliament while he or

she is a member of a local government council or holds a public office shall resign
the office before assuming the office of a member of Parliament.

(4)Under the multiparty political system, a public officer or a person employed in any
government department or agency of the government or an employee of a local
government or anybody in which the government has controlling interest, who
wishes to stand in a general election as a member of Parliament shall resign his or
her office at least ninety days before nomination day.)

Article 252 a public officer may resign from office by writing. The resignation is
deemed to take effect when the writing signifying the resignation is received and
signed by the person or authority to whom it is addressed or by a person authorized
to receive it. Therefore a wrong address or an error in the name of the office is a
mere technicality that cannot vitiate nomination of a candidate in a general election.
See Kevena Taaka V Wandera v Macho Geofrey , EC and NCHE Election
petition Appeal No. 35 of 2016

Sec 10 PEA provides for the sponsorship of members of parliament by the political
parties or organisations) of PEA

Under the LGA section 111 applies;-

88
8.4.5. Burden and Standard of proof

Burden of proof see Paul Mwiru vs Hon Igeme Nathan Nabeta Samson & 2 ors
Election Petition Appeal No. 6 of 2011 ( dictum of Byamugisha JA) & Anthony
Harris Mukasa v Michael Phillip Lulume Bayiga , Supreme Court Election
Petition Appeal No. 18 0f 2007.

Sec 61 (3)PEA Any ground specified in subsection (1) shall be proved on the basis
of a balance of probabilities. The satisfaction of the court and balance of probabilities
went hand in hand. The balance of probabilities in election petitions was higher than
that in ordinary civil matters though not beyond reasonable doubt. Meaning of proof
to the satisfaction of court connotes absence of any reasonable doubt. Therefore the
amount which produces court’s satisfaction has to be that which leaves the court
without reasonable doubt. see Dr Kizza Besigye Yoweri Kaguta Museveni and
the EC Supreme Court Pre Election Petition No 1 of 2001( dictum of Mulenga
JSC)

When does the burden of proof shift?

There must be clear evidence creating doubt as to the authenticity of the document
in question which demands explanation from the respondent. See Abdul Balingira
Nakendo v Patrivck Mwondah , Supreme Court Election Petition Appeal No. 9
of 2006 , Mashate Magomu peter v Electoral Commission 7 or Election
Petition Appeal no. 47 of 2016

8.4.6 Filing of a petition

Sec 60(3) of the PEA provides that every election petition shall be filed within thirty
days after the day on which the result of the election is published by the Commission
in the Gazette .

Rule 4 of the Parliamentary Elections (Interim Provisions) (Election Petitions) Rules

provides for the form of the petition.

89
Rule 5 deals with the mode of presentation of the petition and the petitioner upon
paying a fee of 150,000/= shall present 5 copies of the petition with supporting
Affidavits and any other documents. Irrespective of rule 5 (4) , Late payment of fees
does not invalidate the petition. See Betty Namboze Bakireke v Peter Bakaluba
Mukasa.

Sec 62 of PEA Rule 6 provides that a Notice of petition to be served on respondent

Notice in writing of the presentation of petition accompanied by a copy of the petition
shall, within seven days after the filing of the petition, be served by the petitioner on
the respondent or respondents, as the case may be. The rules on service are
restrictively interpreted.

An election petition must disclose a cause of action and not be barred by law or else
it will be struck out in accordance with O.7 r11(a)(d) of the Civil Procedure Rules .
see Simon Peter Kinyera v EC & Taban Idi Amin Election Petition Appeal no. 3
of 2018

Rule 7 provides that the respondent will thereafter furnish the petitioner with an
address and rule 8 provides that the respondent will file five copies of answer to the
petition. The respondent will have to furnish the registrar of the court with the
address and answer on the petitioner within 7 and 10 days respectively.

Rule 8 (4) provides that the respondent shall serve the petitioner within five days.

Rule 8(3) provides that the answer of the respondent shall be accompanied by—

(a) an affidavit stating the facts upon which the respondent relies in support of his or
her answer; and

(b) a fee of fifty thousand shillings.

See Ikiror kevin v Orot Ismail Election Petition No. 105 of 2016 & Ntende Robert
v Isabirye Iddi Election Petition Appeal No. 74 of 2016 for the timelines provided

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for in filing and prosecuting election petitions. see also Muliro Wanga Karim v
Wakalawo Sam Paul Election petition No. 9 of 2017 ( CA) , Abiriga Ibrahim v
Musema Mudathir Bruce, Election Application No. 24 of 2016 (CA)

It is sufficient compliance with the law for the petitioner to file the petition within the
prescribed period of time. The law under Rule 4(8) and 15, SI 141-2 does not
stipulate all affidavits intended to be relied upon by the petitioner have to be filed
within the restricted time.

8.4.7 Trial of the election petition

Sec 63. Provides for the trial of election petitions

(1) Every election petition, filed under this Act, shall be tried in open court.

(2) The High Court shall proceed to hear and determine the matter expeditiously and
may, for that purpose suspend any other matter pending before it. See Ibaale Daniel
Joseph v Abdul Katuntu & EC . Election Petition appeal No. 41 of 2016

Rule 12 provides for the trial in open court.

(1) A petition shall be tried in open court by a single judge.

(2) After the trial is concluded, if the judge before whom it was held has prepared his
or her decision on the trial but is prevented through illness or otherwise from
delivering it, the decision may be delivered by another judge and the last-mentioned
judge shall certify to the commission the determination of the petition.

Rule 13 provides for expeditious hearing.

(1) The court shall, in accordance with section 93(2) of the Statute, hear and
determine the petition expeditiously; and it shall declare its findings not later than
thirty days from the date it commenced the hearing of the petition unless the court for
sufficient reason extends the time.

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(2) The court shall sit from day-to-day and may, for the purpose of hearing and
determining the petition, suspend any other matter pending before it.

8.4.8 Evidence in Election Petitions

Rule 4 provides for the Form of petition.

(1) The form of a petition shall be as specified in Form A in the Schedule to these
Rules.

(8) The petition shall be accompanied by an affidavit setting out the facts on
which the petition is based together with a list of any documents on which the
petitioner intends to rely.

Rule 8 provides for the Answer of respondent to petition

Rule 8(3)(a) provides that the answer of the respondent shall be accompanied
by—

(a) an affidavit stating the facts upon which the respondent relies in support of his
or her answer;

Rule 15 provides for the evidence at trial.

(1) Subject to this rule, all evidence at the trial, in favour of or against the petition
shall be by way of affidavit read in open court.

(2) With the leave of the court, any person swearing an affidavit which is before
the court may be cross-examined by the opposite party and re-examined by the
party on behalf of whom the affidavit is sworn.

(3) The court may, of its own motion, examine any witness or call and examine or
recall any witness if the court is of the opinion that the evidence of the witness is
likely to assist the court to arrive at a just decision.

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 (4) A person summoned as a witness by the court under subrule (3) of this rule
may be cross-examined by the parties to the petition.

Under the law, evidence in election litigation is by way affidavit. See Ibaale Daniel
Joseph v Abdul Katuntu & EC Election Petition appeal No. 41 of 2016

It is now trite law that the petitioner has to adduce cogent evidence to prove his or
her case to the satisfaction of the court. This evidence has to be the kind of evidence
free from contradictions, it should be truthful so as to convince a reasonable tribunal
to give judgement in a party’s favour. See Masiko Winfred Komuhangi v Winnie
J Babihuga Election Petition Appeal No. 9 of 2002.

Further as per the case of Kikulukunyu Faisal v Muhammed Muwanga kivumbi

Election Petition Appeal No. 44 of 2011 , it is now a general position of law that no
particular number of witnesses is required to prove any particular fact. However,
there are exceptions to this general rule where corroboration is called for such as in
instances of credibility of the witness especially in the adversarial system where
deponenents to affidavitds are usually supporters of either party. see Col (Rtd) Dr
Kizza Besigye v Yoweri Kaguta Museveni & EC Supreme Court Presidential
Election Petition No. 1 of 2001 ( dictum of Oder JSC).

Further as is in the case of Kamba Saleh Moses v Namuyangu Jennifer, Election

Petition Appeal No. 27 of 2011, the evidence from agents or supporters of either
party is always suspect and thus needs corroboration from independent witnesses.

Cross examination of the deponents of the affidavits is not mandatory. However

failure to cross examine the witnesses of both parties means that the court is left with
affidavit evidence that is full of accusations and counter accusations and this leads
inevitably to a conclusion that a petitioner has not discharged their burden of proof to
the required standard. See Kintu Alex Brandon v Electoral Commission &
Walyomu Moses Election Petition Appeal No. 64 of 2016 . Evidence of affidavits
whose deponents are not cross examined is of the weakest kind. There must be an
opportunity for counsel to cross examine the witness and where the right is not
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exercised, it is taken as if the witness has been cross examined. See Ngoma
Ngime v EC & Hon Winnie Byanyima , Election Petition No. 1 of 2001.

Pieces of evidence containing arguments or hearsay evidence may be severed from

the witness’s affidavit provided there remains some substantial evidence for the
court’s consideration.

The affidavits have to comply with Order 19 r 3 of the CPR and the source of
information must be disclosed. Col (Rtd) Dr Kizza Besigye v Yoweri Kaguta
Museveni & EC Supreme Court Presidential Election Petition No. 1 of 2001 &
Chebrot Stephen Chemoiko v Soyekwo Kenneth & EC Election Petition appeal
No. 56 of 2016

Under sec 88 of the Civil Procedure Act, the language of court is English. Where a
witness is illiterate, the extraction of the affidavit evidence must conform to the
requirements of the illiterate’s protection Act and in particular section 3 thereof.

Therefore, the law on affidavit evidence should be adhered to without hoping that
one who violates it may find refuge under Article 126(2)(e).

Where the deponent’s affidavit is stuck off the record and the court is left with their
oral evidence only, that oral evidence should be corroborated by other evidence. See
Peter Mugema v Mudhiobole Abedi Nasser Election petition Appeal. No. 30 of
2011 & Nakate Lilian Segujja & EC v Nabukenya Brenda Consolidated Election
Petition Appeals Nos 17 & 21 of 2016.

8.4.9 Powers of the court

Sec 63 (4) of the PEA After due inquiry the court hearing an election petition may—

(a) dismiss the petition; or

(b) declare that a candidate other than the candidate declared elected was validly
elected; or (c) set aside the election and order a new election.

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Sect 63 (5) The High Court before coming to a decision under subsection (4), may
order a recount of the votes cast.

8.5. Right of Appeal

Sec 66 of the PEA. Appeals

(1) A person aggrieved by the determination of the High Court on hearing an election
petition may appeal to the Court of Appeal against the decision.

(2) The Court of Appeal shall proceed to hear and determine an appeal under this
section within six months from the date of filing of the appeal and may for that
purpose suspend any other matter pending before it.

(3) Notwithstanding section 6 of the Judicature Act, the decisions of the Court of
Appeal pertaining to parliamentary elections petition shall be final.

8.5.1 Judicial review

The definition of judicial Review was inserted in the Judicature (Judicial review) rules
of 2009 by rule 3 of Judicature (judicial review) Amendment Rules , 2019

"Judicial review" means the process by which the High Court exercises its
supervisory jurisdiction over the proceedings and decisions of subordinate courts,
tribunals and other bodies or persons who carry out quasi-judicial functions or who
are charged with the performance of public acts and duties.

The purpose of judicial review is to prevent unfair officials or bodies rom exceeding
limits of their legitimate spheres of power or to compel them to exercise their
functions in accordance with the law. It does not attempt to provide final
determination of private rights, which is done in normal civil suits see Amiran
Enterprises Ltd v URA HCMA 06/2010.

As an equitable remedy, judicial review is available only in deserving cases.

Hoffman La Roche v Secretary for Trade & Industry (1975) A.C 295.
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Rule 5 (1) of the Judicature (Judicial Review) Rules, 2009 provides as follows; “Time
for applying for judicial review

(1) An application for judicial review shall be made promptly and in any event
within three months from the date when the grounds of the application first
arose, unless the court considers that there is good reason for extending the
period within which the application shall be made.”

The position of the law is that time limitations are substantive provisions of the
law and limitation of actions is not concerned with merits of the case. see
Dawson Kadope vs Uganda Revenue Authority, HC MA. No. 40 of 2019
while citing the decision in I.P Mugumya vs Attorney General, HC M.A No.
116 of 2015, Hilton vs. Steam Laundry [1946] 1 KB 61 at p.81.

In Re Application by Mustapha Ramathan for Orders of Certiorari, Prohibition

and Injunction, Civil Appeal No.25 of 1996.

Barko, JA, as he then was stated Statutes of limitations are in their nature
strict and inflexible enactments. Their overriding purpose is interest
reipublicae ut sit finis litum, meaning that litigation shall be
automatically stifled after fixed length of time, irrespective of the merits
of the particular case. A good illustration can be found in the following
statement of Lord Greene M. R in Hilton Vs Sutton Steam Laundry [1946]
1 KB 61 at page 81 where he said-

“But the statute of limitations is not concerned with merits. Once the
axe falls, it falls, and a defendant who is fortunate enough to have
acquired the benefit of the statute of limitation is entitled, of course, to
insist on his strict rights.”

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8.5.2 Factors to handle when handling an application for judicial review

Section 7A that was inserted by section 5 of the Judicature (judicial review)

Amendment Rules , 2019

It provides for the factors to consider in handling applications for judicial

review

(1)The court shall, in considering an application for judicial review, satisfy itself of the
following—

(a) that the application is amenable for judicial review;

(b) that the aggrieved person has exhausted the existing remedies available within
the public body or under the law; and

(c) that the matter involves an administrative public body or official.

(2)The court shall grant an order for judicial review where it is satisfied that the
decision making body or officer did not follow due process in reaching a decision and
that, as a result, there was unfair and unjust treatment.

That the application is amenable for judicial review;

The Court must, therefore, be satisfied; first, that the body under challenge must be
a public body whose activities can be controlled by judicial review; and secondly, the
subject matter of the challenge must involve claims based on public law principles
and not the enforcement of private law rights. See: Ssekaana Musa, Public Law in
East Africa, (2009) Law Africa Publishing, Nairobi, at p. 37.

That the aggrieved person has exhausted the existing remedies available
within the public body or under the law;

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The Court of Appeal of Uganda in the case of Leads Insurance Limited vs
Insurance Regulatory Authority & Another, CACA No. 237 of 2015 approved the
statement of the law by the Learned Trial Judge thus: “The remedy by way of judicial
review is not available where an alternative remedy exists. This is a preposition of
great importance. Judicial review is collateral challenge; it is not an appeal. Where
Parliament has provided by statute appeal procedures, it will only be very rarely that
the court will allow the collateral process of judicial review to be used to attack an
appealable decision. See: Breston Vs IRS 1985 Vol. 2 … Land Reports pg 327 at
page 330 Per Lord Scarman”.

The Court in the Leads Insurance Limited vs Insurance Regulatory Authority &
Another (supra) decision went ahead to find that if the applicant is to satisfy the
Court to entertain the judicial review in presence of an alternative remedy, the
applicant has to show some exceptional circumstances or some other ground why it
is inappropriate for the matter to be dealt with by the alternative forum. The Court
cited with approval the decision in Housing Finance Company of Uganda Ltd vs
The Commissioner General URA, HC M.C No. 722 of 2005 where it was stated: “I
must hasten to add that there are exceptions to the ‘rule’ at hand. If a matter in
question or decision in issue is questioned on the basis of the same being ultra vires
or procured by fraud, ill will, or some other circumstances that makes it imperative
that judicial review be embarked upon, leave may be granted regardless of the
existence of an alternative remedy”.

Further in the case of in Salim Alibhai & Others vs Uganda Revenue Authority,
HC M.C No. 123 of 2020, Ssekaana J., had this to say on this point; “The rule of
exhaustion of alterative remedies is not cast in stone and it applies with necessary
modifications and circumstances of the particular case … When an alternative
remedy is available, the court may refrain from exercising its jurisdiction, when such
alternative, adequate and efficacious legal remedy is available but to refrain from
exercising jurisdiction is different from saying that it has no jurisdiction. Therefore,
the rule of exhaustion of alternative remedy is a rule of discretion and not one of
compulsion. In an appropriate case, in spite of availability of alternative remedy, the

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High Court may still exercise its discretionary jurisdiction of judicial review, in at least
three contingencies, namely, (i) where the application seeks enforcement of any of
the Fundamental rights; (ii) where there is failure of natural justice; or (iii) the orders
or proceedings are wholly without jurisdiction or the vires of an Act is challenged.
See M.P State Agro Industries Development Corporation Ltd v Jahan Khan
[2007] 10 SCC 88”.

That the matter involves an administrative public body or official.

Rule 2 defines a "public body" which was inserted by R. 3 of the Judicature

( Judicial review) Amendment Rules of 2019 to include—(a)the Government, any
department, services or undertaking of the Government;(b)the East African
Community, its institutions and corporations;(c)the Cabinet, Parliament, any court;
(d)District Administration, a District Council, any district committee of a district
council, a local council and any committee of a local council;(e)any corporation,
committee, board, commission or similar body whether corporate or incorporate
established by an Act of Parliament for the purposes of any written relating to the
public health or public undertakings of public utility, education or for promotion of
sports, literature, science, arts or any other purpose for the benefit of the public or
any section of the public or any section of the public to administer funds or property
belonging to or granted by the Government or the East African Community, its
institutions or its corporations or money raised by public subscription or its
corporations or money raised by public subscription, rates, taxes, cess or charges in
pursuance of any written law;

It follows, therefore, that in order to bring an action for judicial review, it is a

requirement that the right sought to be protected is not of a personal and individual
nature but a public one enjoyed by the public at large. The "public" nature of the
decision challenged is a condition precedent to the exercise of the courts'
supervisory function. See: Arua Kubala Park Operators and Market Vendors’
Cooperative Society Ltd vs Arua Municipal Council, HC MC No. 003 of 2016
[Per Mubiru J]

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8.5.3 Reasons to show that decision making body or officer did not follow due
process in reaching a decision and that, as a result, there was unfair and
unjust treatment.

Illegality

This arises where there is a commission of an error of law in the process of decision
making or making the act, the subject of the complaint. Eg acting without jurisdiction
or contrary to the provision of the law or principle.

Lord Diplock in the case of Council of Civil Service Unions v Minister for Civil
Service (1985) AC 375, made the following statement;
“By illegality as a ground for judicial review, I mean that the
decision maker must understand correctly the law that regulated his
decision making power and must give effect to it. Whether he has or
not is par excellence a justifiable question to be decided, in the event
of dispute, by those persons, the judges, by whom the judicial power
of the state is exercised.’’
See: Dr.Lam –Lagoro James v Muni University, HCMC No. 007 of 2016.

It is also the position of the law that where discretionary power is conferred upon
legal authorities, it is not absolute, even within its apparent boundaries, but is subject
to general limitations. As such, discretion must be exercised in the manner intended
by the empowering Act or legislation. The limitations to the exercise of the discretion
are usually expressed in different ways, such as the requirement that the discretion
has to be exercised reasonably and in good faith, or that relevant considerations only
must be
taken into account, or that the decision must not be arbitrary or capricious.
See: Smart Protus Magara & 13 Others v Financial Intelligence Authority,
HCMC No. 215 of 2018.

Irrationality

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This is when there is gross unreasonableness in the decision taken or act done that
no authority addressing to the facts and to the law before it would have made such a
decision. Such a decision is usually in defiance of logic and acceptable moral
standards

Procedural impropriety

“Procedural impropriety” has been defined to mean “the failure to observe basic
rules of natural justice or failure to act with procedural fairness toward the person
who will be affected by the decision.” See: Council of Civil Service Unions &
Others vs. Minister for the Civil Service [1985] AC 374 [Per Lord Diplock].
Under the law, procedural impropriety encompasses four basic concepts; namely (i)
the need to comply with the adopted (and usually statutory) rules for the decision
making process; (ii) the requirement of fair hearing; (iii) the requirement that the
decision is made without an appearance of bias; (iv) the requirement to comply with
any procedural legitimate expectations created by the decision maker. See: Dr. Lam
– Lagoro James Vs. Muni University (HCMC No. 0007 of 2016). Procedural
propriety calls for adherence to the rules of natural justice which imports the
requirement to hear the other party (audi alteram partem) and the prohibition against
being a judge in one’s cause. The latter essentially provides against bias. Natural
justice requires that the person accused should know the nature of the accusation
made against them; secondly, that he/she should be given an opportunity to state
his/her case; and thirdly, the tribunal should act in good faith. See: Byrne v.
Kinematograph Renters Society Ltd, [1958]1 WLR 762.

8.5.4 Hearing of applications for judicial review

(1)On the hearing of any motion under rule 6, any person who desires to be heard in
opposition to the motion and appears to the court to be a proper person to be heard,
shall be heard, notwithstanding that he or she has not been served with notice of the
motion or the summons.

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8.5.4 Reliefs / prayers

Rule 3 of the Judicature (Judicial Review) Rules, 2009 provides for the cases
appropriate for judicial review

(a) an order of mandamus, prohibition or certiorari; or

(b)an injunction under section 38(2) of the Judicature Act restraining a person from
acting in any office in which the person is not entitled to act, shall be made by way of
an application for judicial review in accordance with these Rules.

(2)An application for a declaration or an injunction (not being an injunction mentioned

in subrule (1)(b) may be made by way of application for judicial review, and on such
an application, the High Court may grant the declaration or injunction claimed if it
considers that, having regard to—

(a)the nature of the matter in respect of which relief may be granted by way of an
order of mandamus, prohibition or certiorari;

(b)the nature of the persons and bodies against whom relief may be granted by way
of such an order; and

(c)all the circumstances of the case,it would be just and convenient for the
declaration or injunction to be granted on an application for judicial review.

Rule 2 of the Judicature (Judicial Review) Rules as Amended provides that a

declaration means a pronouncement by court on the legal position of the party after
considering the evidence and applying the law and that evidence to the existing legal
situation.

Rule 2 of the Judicature (Judicial Review) Rules as Amended defines Certiorari to

mean an order by court to quash a decision which is ultra vires. Certiorari is one of
the most powerful public law remedies available to an applicant. It lies to quash a
decision of a public authority that is unlawful for one or more reasons. It is mainly
designed to prevent abuse of power or unlawful exercise of power by a public
authority. See Public in East Africa by Ssekaana Musa page 229. Certiorari is
simply concerned with the decision-making process and only issues when the court
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is convinced that the decision challenged was reached without or in excess of
jurisdiction, in breach of rules of natural justice or contrary to the law. The effect of
the order of certiorari is to restore status quo ante. Accordingly, when issued, an
order of certiorari restores the situation that existed before the decision quashed was
made. See Twed Property Development Limited v National Building Review
Board (Misc Cause 274 of 2022) [2023] UGHCCD 209 (7 July 2023).

The court can further grant an Injunction.

General Damages Rule 8 of the Judicature (Judicial Review) Rules 1) On an

application for judicial review the court may, subject to subrule (2),award damages to
the applicant if,

(a) he or she has included in the motion in support of his or her application a
claim for damages arising from any matter to which the application relates;
and
(b) the court is satisfied that, if the claim had been made in an action begun by
the applicant at the time of making his or her application, he or she could have
been awarded damages.

In that regard, the position of the law is that the additional cause of action that may
be added to an application for judicial review may include a claim for breach of
statutory duty, misfeasance in public office or private action in tort such as
negligence, nuisance, trespass, defamation, interference with contractual relations
and malicious prosecution. See: Three Rivers District Council v Bank of England
(3) [2003]2 AC 28 1; X (Minors) versus Bedfordshire County Council [1995]2 AC
633; and Fordham, Reparation for Maladministration: Public Law Final
Frontiers (2003) RR 104 at page 104 - 105.

The court can also award costs to the applicant.

Rule 7B which was inserted by the the Judicature (Judicial Review) Amendment
Rules, 2019 provides for for the Time for disposal

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An application for judicial review shall be disposed of within ninety days from the
date of filing the application

8.5.5 Constitutional interpretation.

Forum: -
The students will be able to determine the appropriate forum for filing of a Petition
seeking for Constitutional interpretation. The forum is provided for under Article
137(1) of the Constitution of Uganda as being the Court of Appeal sitting as a
Constitutional Court.

Coram for Constitutional Petitions: -

The Coram of the Constitutional Court to hear and determine a Constitutional
Petition is comprised of five (5) Justices of the Court of Appeal sitting as a
Constitutional Court. - See Article 137 (2) of the Constitution of Uganda.

Coram for Constitutional Applications: -

All Constitutional Applications before the Constitutional Court must be heard by a
panel of five (5) members of the Court of Appeal sitting as a Constitutional Court.
See James Isabirye -vs- Attorney General; Const. Application No.001 of 2007;
Murisho Shafi & Others -vs- Attorney General; Const. Application No. 002 of
2017; Section 13 (1) of Judicature Act; Rule 23 of the Constitutional Court
(Petition and References) Procedure Rules, 2005.

Students shall be guided on the previously conflicting position of the Constitutional

Court on the coram of the Court in hearing and determining Constitutional
Applications. See Olara Otunnu vs Attorney General; Const. Application No. 26
of 2010; Maj. Gen. James Kazini vs Attorney General; Const. Application
No.04 of 2009; George Owor & Others vs Attorney General; Const. Application
No. 38 of 2010.

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However, the Constitutional Court under a panel of three justices in Murisho Shafi
(supra) after revisiting the previous cases in Olara Otunnu (supra), George Owor
(supra) reinstated the previous position in James Isabirye (supra) to the effect that
Const. Applications must be heard by a full panel of five (5) justices.
Jurisdiction of the Constitutional Court:
The jurisdiction of the Constitutional Court is limited to the interpretation of the
provisions of the Constitution, and nothing else. The Constitutional Court has no
other jurisdiction. See Article 137 (1) of the Constitution; Attorney General vs
Major General David Tinyefunza; Const. Appeal No. 001 of 1997 (SC); Ismail
Serugo vs Kampala City Council & Attorney General; Const. Appeal No. 02 of
1998.

The jurisdiction is established when any person alleges that an Act of Parliament, or
any other law or anything done under the authority of any law is inconsistent with or
in contravention of any of the provisions of the Constitution. See Article 137(3) (a)
of the Constitution of Uganda

The jurisdiction of the Constitutional Court can also be established once any person
alleges any act or omission by any person or authority is inconsistent with or in
contravention of any of the provisions of the Constitution. See Article 137(3) (b) of
the Constitution of Uganda.

Cause of action in Constitutional Petitions:

Generally, the main elements of establishing a cause of action in Unlike in Plaint
apply to a Constitutional Petition. However, for a cause of action to be established,
one has to resort to Article 137 (3) of the Constitution of Uganda.

A cause of action in Constitutional Petitions is, therefore, established if the Petition

describes the act or omission complained of and shows the provision of the
Constitution with which the act or omission is alleged to be inconsistent or which is
alleged to have been contravened by the act or omission and pray for a declaration
to that effect. See Ismail Serugo vs Kampala City Council & Attorney General;

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Const. Appeal No. 02 of 1998(Mulenga JSC); Raphael Baku Obudra vs
Attorney General; Supreme Court Const. Appeal No. 01 of 2003 (Odoki- CJ)

.
8.5.6 Who may petition the constitutional court.

Any person who complains of and shows that the provisions of the Constitution are
infringed by any act or omission may apply to the Constitutional Court for
determination of the constitutionality of the alleged act or omission. See Article
137(3) (a) and (b) of the Constitution; Ismail Serugo V Attorney General and
Kampala City Council;, Constitutional Petition No. 14 of 1997.

Further a person may petition the Constitutional Court by way of reference in which
a question for interpretation arises in any proceedings before a court of law. See
Article 137(5) of the Constitution of Uganda.; Akankwasa Damian vs Uganda
Const. Reference No. 05 of 2011; Thomas Kwoyelo vs Uganda, Const.
Reference No. 036 of 2011.

The Constitutional Court while determining a const. Reference, exercises special

and limited jurisdiction on matters and issues that have arisen in the proceedings
before the Court which sent the Reference. See Akankwasa Damian vs Uganda
Const. Reference No. 05 of 2011;

The procedure for lodgement of the Constitutional Reference is set out in

Rules 18,19, 20, 21 of the Constitutional Court (Petitions and Reference)
Rules, 2005

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8.5.7 Procedure of a Constitutional Petition

A constitutional Petition is commenced by way of a Petition accompanied by an

affidavit. The form and contents are set out in Rule 3(2) of the Constitutional
Court (Petitions and References) Rules, 2005.

The student must be advised that the contents of the Petition must be able to set
out facts which demonstrates issues for constitutional interpretation which is
equivalent to disclosing a cause of action in accordance with Article 137 (3)(a)(b) of
the Constitution of Uganda. See Raphael Baku Obudra vs Attorney General;
Supreme Court Const. Appeal No. 01 of 2003 (Odoki- CJ); Charles Kabagambe
vs Uganda Electricity Board, Constitutional Petition No. 2 of 1999.

The Petitioner must lodge 8 copies in the Constitutional Court Registry- and
thereafter effect serve on the Respondent, the Attorney General who is normally a
statutory Respondent in constitutional matters-See Rules 4 and 5.

The Respondent served with a copy of the Petition is mandated to file an Answer to
the Petition within a period of 7 days and also file a notice of address of service
within a period of 3 days. See Rule 6.

The Civil Procedure Act and the Civil Procedure Rules apply to the proceedings and
determination of the Constitutional Petition. See Rule 23.

The hearing of the Constitutional Petitions is restricted to affidavit evidence.

However, the Court may grant leave to any party to cross examine any witness who
has deposed an affidavit. The Court may also at its own volition summon any party
who deposed an affidavit for examination. See Rule 12.

The death of a petitioner abates the Constitutional Petition. However, the death of
the Respondent does not lead to abatement of the Petition. See Rules 14 and 15;
Attorney General vs Bob Kasango; Const. Application No.02 of 2021 (SC)

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8.6.6 Enforcement of fundamental rights and freedoms.

Students are advised to read the THE HUMAN RIGHTS (ENFORCEMENT) ACT,
2019. Which gives effect to article 50 (4) of the Constitution by providing for the
procedure of enforcing human rights under Chapter Four of the Constitution; and for
related matters.
Students should be able to identify and name the violated rights and freedoms of
the victims. The students should also be able to show that the respondent is liable
for the violations so as to be able to identify the relevant remedies available to the
victims.
8.7 Reference List

Statutes

1. The Constitution of the Republic of Uganda, 1995;

2. The Judicature Act, Cap. 13;
3. The Parliamentary Elections Act, No. 17 of 2005;
4. The Electoral Commission Act, Cap 40;
5. The Political Parties and Organizations Act, 2005;
6. The Evidence Act, Cap 6;
7. The Commissioner of Oaths Act ,Cap 5;
8. The Illiterates Protection Act, Cap 78;
9. The Education Act, Cap 127;
10. The Uganda National Examinations Board (UNEB) Act, Cap 137;
11. The Education ( Pre-Primary, Primary and Post Primary) Act, No. 13 of /2008;
12. The Interpretation Act, Cap 3;
13. The Human Rights (Enforcement) Act 2019;
14. The Civil Procedure Act, Cap. 71;
15. The Government Proceedings Act, Cap. 77;
16. The Civil Procedure and Limitation Miscellaneous Provisions) Act Cap. 72;
17. The Limitation Act, Cap. 80;

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 18. The Magistrate Court Act, Cap 16;
19. The Advocates ( Amendment) Act, 2002;
20. The Births and Deaths Registration Act, Cap 309.

Rules/Regulations

1. The Civil Procedure Rules, SI 77-1;

2. The Commissioner of Oaths Rules, 2015;
3. The Judicature (Court Fees) Rules SI 13-1;
4. The Parliamentary Elections (Interim Provisions) (Election Petitions) Rules. SI
141-2;
5. The Judicature (Court Fees, Fines and Deposits) Rules SI 13-3;
6. The Judicature (Court of Appeal Rules) Directions SI 13-10;
7. The Judicature (Interpretation of the Constitution) Procedure Rules SI 13-12;
8. The Constitutional Court (Petitions and References) Rules, 2005.
9. Judicature (Fundamental and Other Human Rights and Freedoms)
(Enforcement Procedure) Rules, 2019.
10. The Judicature (Rules of Constitutional Court) (Petitions for Declaration under
Article 137 of the Constitution) Directions SI 13-15;
11. The Constitution (Integration of ICT into the Adjudication Processes for Courts
of Judicature) (Practice) Direction SI 06/2019;
12. The Judicature (Judicial Review) (Amendment) Rules 2019;
13. The Judicature (Rules of Constitutional Court) (Petitions for Declaration under
Article 137 of the Constitution) Directions SI 13-15;
14. The Judicature ( Habeas Corpus ) Rules SI 114 of 1972
15. The Advocates (Professional Conduct) Regulations SI 267-2.

Cases

1. Anthony Harris Mukasa vs. Michael Philp Luume Bayoga Supreme Court
Election Petition Appeal No. 18 of 2007;
2. Kizza Besigye vs. Yoweri Kaguta Museveni Presidential Election Petition No.
1 of 2001;

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 3. Joy Kafura Kabatsi vs. Anifa Kawooya Bangirana And Ors Supreme Court
Election Appeal No. 25 of 2007;
4. Zacary Olum and ors vs. Attorney General , Constitutional petition No. 6 of
1999;
5. Ismael Serugo vs. KCC & Attorney general , Constitutional Appeal No.
02/1998;
6. Dr. James Rwanyarare vs. Attorney General, Constitutional Petition No.
11/1997;
7. Arua Kubala Park Operators and Market Vendors’ Cooperative Society Ltd vs.
Arua Municipal Council, HCMC 003 of 2013;
8. Salim Alibhai & 9 ors vs. Uganda Revenue Authority, Miscelleneous Cause
No. 123 of 2020;
9. CEHURD & 2 Ors. vs. The Executive Director Mulago Hospital, HCCS No.
212 of 2013.

Text Books
1. Mulla (1967); The Code of Civil Procedure, 13th Edition.
2. The 2016 Parliamentary Elections Digest by Prof. Justice Lilian Tibatemwa
Ekirikubinza & Busingye Kabumba.

9.0 MODULE SIX: POST JUDGEMENT REMEDIES

9.1 Introduction

Under this module, the student is exposed to post judgement remedies such as
Revision, Review, amendment of judgments, decrees or orders and appeals both to
the High Court and the Court of Appeal.

9.2 Aim of the module

The aim of the module is to;

1. Develop ability to advice on post judgement remedies in civil litigation.

2. Develop ability to undertake post judgement remedies in civil litigation.
3. Recognise ethical issues relating to post judgement remedies in civil litigation.

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9.3 Learning outcomes:

By the end of this module you will be able to

1. Explain the principles relating to post judgement remedies;
2. Present applications for revision, review and amendment of judgements,
decrees and orders;
3. Undertake appellate mediation;
4. Present appeals in the High Court and Court of Appeal
5. Draft the documents relating to post judgement remedies in civil litigation;
6. Recognise and deal with ethical issues relating to post judgement remedies in
civil litigation.

9.4 Outline of content

1. Principles in applications for;

a) Revision,
b) Review
c) Amendment of judgments, decrees and orders,
2. Perusal of the record of proceedings and judgement;
3. Formulation of grounds of appeal;
4. Memorandum and notice of appeal;
5. First and second appeals;
6. Interlocutory applications in appeal processes;
7. Hearing of first and second appeals;
8. Powers and duties of the first and second appellate courts;
9. Appellate mediation.

9.4.1 Principles in applications for - Review,

This is provided for in Sec 82 CPA and O.46r1-8. This is a matter of discretion
which must be exercised judicially. See Adulla Jaffer Devji v Ali RMS Devji (1958)
EA 558

Who may apply for Review?

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Any person considering themselves aggrieved by a decree or order from which an
appeal is allowed but from which no appeal or from which no appeal is allowed may
apply for review of the judgement of court which passed the decree or made the
order.

Grounds to prove,

- legal grievance, see Nakivubo Chemist Ug Ltd ( 1979 ) HCB 12 and Ladak A
M Hussein vs Griffiths Isingoma Kakiza SCCA No.8 of 1995

-new and important matter of evidence, which after exercise of due diligence was not
within his knowledge or could not be produced by him when decree was passed or
order

-account of mistake or error apparent on the face of the record,

-any other sufficient reason

The grounds in rule 1 7 2 are different and the application in rule 2 is made to the
same judge who made the order sought to be reviewed. See Rohini Damiji Sidpra
v Freny Damji and Ors SCCA No. 60 of 1995

FX Mubuuke vs. UEB High Court Misc. Application No.9 of 2005 which clearly
outlines these as;

1. That there is mistake or manifest mistake or error apparent on the face of the
record. See Kanyabwera v Tumwebaza (2005) 2 EA 86 at 92

2. That there is discovery of new and important evidence which after the
exercise of due diligence was not within the applicant's knowledge or could
not be produced by him or her at the time when the decree was passed or
the order made. See Bancrof & ors v City Council of Nairobi (1971) 1EA
151
3. That any other sufficient reason exists. Sufficient should be read as meaning
sufficiently of a kind analogous to 1 and 2 above. See Yusuf Nokrach ( 1997)
EA 135
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In the case of Ojijo Pascal v. Geoffrey Brown Mis Application No. 758 of 2017 it
was held to this effect that "...where an error on substantial point of law stares one
in the face, and there could reasonably be no two opinions, a clear case of error
apparent on the face of the record would be made out... mere error or wrong view is
certainly no ground for review"

Nyamogo & Nyamogo Advocates v. Kago [2001] 2 EA 173 that defined "an error
apparent on the face of the record as cannot be defined precisely or exhaustively,
there being an element of indefiniteness inherent in its very nature, and it must be
left to be determined judicially on the facts of each case. There is a real distinction
between a mere erroneous decision and an error apparent on the face of the record.
Where an error on a substantial point of law stares one in the face, and there could
reasonably be no two options, a clear case of error apparent on the face of the
record would be made out. An error which has to be established by a long drawn
process of reasoning or on points where there may conceivably be two opinions can
hardly be said to be an error apparent on the face of the record. Again, if a review
adopted by the court in the original record is a possible one, it cannot be an error
apparent on the face of the record even though another view was also possible.
Mere error or wrong view is certainly no ground for a review although it may be for
an appeal.

A review may be granted whenever the court considers that it is necessary to correct
an apparent error or omission on the part of the Court. The error or omission must
be self-evident and should not require an elaborate argument to be established. It
will not be a sufficient ground for review that another judge could have taken in a
different view of the matter. That the court proceeded on an incorrect exposition of
the law and reached an erroneous conclusion of law cannot be ground for review but
could be a proper ground for review. Misconstruing a statute or other provision of
law cannot be ground for review but could be a proper ground for appeal since in
that case the court will have made a conscious decision on the matters in

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controversy and exercised his discretion in favor of the successful party in respect of
a contested issue. If the court reached a wrong conclusion of law, in the
circumstances of that nature, it could be a good ground for appeal on its own
judgment which is not permissible in law.”

An application for review may be made notwithstanding the pendency of an appeal

by some other party except where the ground of appeal is common to the applicant
or when being a respondent, he or she can present to the appellant court the case
on which he or she applies for the review. See Adonia (1970) EA 429, Hussein v
Kakiza and ors (1995-1998)

The application is to the court which passed the decree. See Levi Outa v UTC
(1975) HCB 340. This application is by way of a notice of motion supported by an
affidavit. See Pro Kainenda v Sterling Astaldi (u) ltd CSNo 369 of 1968

When an application for review is granted, the court may at once re-hear the case.
Review is not an end in itself but it is intended to correct a mistake and enable
parties to settle their rights in a proper and conclusive manner. See Ladak A M
Hussein vs Griffiths Isingoma Kakiza SCCA No.8 of 1995

9.4.2 Revision

Section 83 of the CPA provides for revision see Elizabeth Bameka v Dodovico
Nviiri ( 1973) ULR 134.

The High Court has supervisory jurisdiction over the lower courts. See Byanyima v
Ngoma Ngime High Court Civil Revision 0009 of 2001. The court must be moved
by the aggrieved party. See Kahuratuka v Mushorishori & Co.(1975) HCB 13 .

Procedure

The aggrieved person should write to the High Court Registrar, drawing the court the
attention of the irregularities of the subordinate court and request that the matter be
brought before a judge. See LDC v Edward mugalu ( 1990-1991) 1 KALR 103

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However in practice, the High Court will insist on a formal application by way of a
Notice of Motion.

Upon proof of any of the grounds in a, b, c of section 83, the court may revise and
make such orders in it as it thinks fit but the court will be mindful of sub section c and
d of section 83.

See RASHIDA ABDUL KARIM HANALI , MOHAMED ALLIBHAI vs SULEIMAN

ADRISI , Owners of Motor Vessel Lillian “s” v. Caltex Oil Kenya Limited [1989] KLR
1,Kibalama Mugwanya Vs. Butebi Investment Enterprises Ltd,
Uganda v Wadri & 31 Ors (Criminal Revision 2 of 2018) [2018] UGHCCRD 151 (20
August 2018,National Medical Stores v Penguines Ltd (HCT-00-CC-CA 29 of 10
2010) [2012] UG Comm C 39 (3 May 2012) cited with approval the dicta of the Court
of Appeal in Mubiru & others V Kayiwa (1979) HCB 212 CA

9.4.3 Amendment of judgments, decrees and orders,( slip rule )

Section 99 CPA

See Fang Min vs Dr. Kaijuka Mutabazi Emmanuel Civil Application No. 6 of
2009, citing the application of Sir Charles Nwwebold, P on Lakhamishi
Brothers Ltd Vs R Raja & Sons (1966) EA 3313 at page 314 , Lakhamishi
Brothers Ltd v R. Raja & Sons (1966) EA 3313 at page 314.

Orient Bank limited vs Fredrick Zaabwe and Ors Civil Application No. 17 of
2007, the court can invoke its inherent powers as provided in sec 33 and 99 of CPA
to clarify or correct errors that are accidental and may lead to a miscarriage of
justice.

Also see Hon Obiga Kania v Wadri Kasiano Ezati & ors Mis Application No. 142
of 2017

A clerical mistake is a mistake of calculation, or a mistake in writing or typing,

whereas an error arising or occurring from accidental slip or omission is an error due
to careless mistake or omission on the part of the Court.

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 There cannot be an amendment to any final order unequivocally made since the
result of would be to trigger another process of adjudication (see Moore v. Buchanan
[1967] 1 5 WLR 1341; In Re Inchcape [1942] Ch 394 and Tak Ming Co. Ltd v. Yee
Sang Metal Supplies Co. 1973 1 WLR 300).

Neither can the slip rule be used by a party to seek clarity of a judgment but only to
correct minor errors.

If the omission sought to be corrected goes to the merits of the case, or seeks to
clear an ambiguity in the decision, it is beyond the scope of this provision, for which
the proper remedy for the aggrieved party is to file appeal or an application review.

The slip rule has three features;

first, the rule is not directed to pure omissions, i.e. something that the Judge meant
to do but by some oversight he or she forgot to do.

Secondly, the slip is in the nature of a “clerical or typographical” error. This betokens
an error in expression or calculation of something contained within the decision, not
an error going to the reason or intention forming the basis of that decision. Such slips
might include an arithmetical error in adding or subtracting sums, mis-transposing
parties’ names, a slip in carrying over a calculation from one part of the decision to
another or, as here, the mistaken insertion of a rogue number.
Thirdly, it is this kind of slip (clerical or typographical) that is as a result of “accident
or omission.” This, too, points to correction of slips or mistakes in expression, rather
than changes to the reasoned or intended basis of the decision (see NKT Cables
A/S v. SP Power Systems Ltd [2001] All ER (D) 74).

It is not a warrant to correct what are more substantive errors, in the sense of a
mistake of fact or law, is it a warrant to correct a pure omission, being something that
the Judge intended to include or take account of but which he or she has wholly
omitted to in reaching his or her decision.

This provision only covers genuine slips or omissions in the wording of a handed
down judgment which were made by accident, e.g. the misdescription of a party or
the incorrect insertion of a date. The slip rule is only applicable to give effect to the
court’s thoughts or intentions at the time of making the order and not additional
thoughts arising after it is handed down.

It cannot be used to correct substantive mistakes, for example an error in law. It

cannot be invoked to add a provision having substantive effect which was not in the
contemplation of the parties or the court at the hearing.

Due to the functus officio doctrine, the court has no power to correct substantive
errors concerning the decision itself (i.e. a mistake of its own in law or otherwise)
even if they are apparent on the face of the judgment. In those circumstances, the
remedy would lie in the appeal process.

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9.4.4 Appeals

See Sect 66 and 67 and Section 76 of the of CPA and Order 44 CPR

Also see Sec 10 & 36 of the Judicature act and the case of Denis Bireije v
Attorney General Civil application No. 31 of 2005 (CA), Makula International Ltd
v His Eminence Cardinal Nsubuga & Ors (1982) HCB and LDC v Pius
Nuwagaba Civil application No 18 of 2005.

Limitation for appeals

See Sect 79, 76 of the CPA, O.44r1 of the CPR and 220(1) of the MCA

Sect 34 of the interpretation act

Perusal of the record of proceedings and judgement;

Grounds of Appeal are obtained from the Judgement only. There after the grounds
are further explained by what actually transoitrdd in court so one has to peruse the
record of proceedings.

Formulation of grounds of appeal;

O. 43 r 1(2) of the CPA, sect Rule 86 of the Judicature ( Court of Appeals ) Rules
provides for the memorandum of appeal. this rule spells out the nature of grounds of
appeal. see Sietco v Noble Builders (U ) Ltd, Civil appeal No. 31 of 1995 ( SCU),
Katumba Byaruhanga v Edward Kyewalabye Musoke CACA No. 2 of 1998,
National Insurance Corporation v pelican Air Services ,Civil Appeal No. 15 of
2003(CA), lagedo Christine& 3 ors v Fabiano Obwoya HCCivil appeal No. 82 of
2019 . celtel Uganda ltd T/A Zain Uganda v Susan Karungi Civil Appeal No. 73
of 2013 , Ranchobhai Shivbhai Patel Ltd and ors Wambuga & ors SCCA No. 6
of 2017

Memorandum and notice of appeal;

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In the High Court, O. 43 CRP provides for the form of an appeal being preferred by a
memorandum of appeal.

In the Court of Appeal, Rule 83 (1) of the Judicature (Court of Appeals) Rules, an
appeal is instituted within 60 days from the date when the notice of appeal was
lodged by filling six copies of the Memorandum of Appeal and the record of appeal,
the prescribed fee and security for costs of the appeal. sub rule 1 has to be read
together with sub rule 2 and 3 see J ohn Matsiko vs Banyankore Kweterana
Court of Appeal (Civil Application No. 43 of 1198), this court in reference to
Rule 82 (3) which is now 83(3) stated as follows:-“We find that the provisions
of Rule 82 (3) are mandatory. The duty rests on the appellant to serve the
respondents and retain proof of service. That requirement is not a mere
technicality and counsel for the respondent cannot rely on Article 126 2(e) of
the Constitution”

For the fees and security for costs, see Rule 103, 104, 105 of the Judicature (Court of
Appeals) Rules

The notice of appeal mentioned in Rule 83(1) should comply with rules 75,
76,77,78,79 and lastly R. 4 of the COA rules for computation of time . Take
note of Rule 85 of Judicature (Court of Appeals) Rules.

Should these essential steps not be taken, one cannot then rely on a defence of a
mere technicality and pray to be dispensed with Article 126(2)( e) . See Gaba
Beach Hotel Ltd v Cairo International Bank Civil Application No.34 0f 2003,

Contents of the record of appeal are provided for in Rule 87. see General Parts
U Ltd v Non Performing Assets Recovery Trust (2006) 2 EA 57
Also see Rule 80,89,88,90, 97,98,99,100, 101&102 of the Judicature ( Court of
Appeals ) Rules.

Notice of cross appeal and No tice of grounds for affirming a decision R 91, 92,
93

First and second appeals;

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first appeal section 80 CPA rule 30, 32(1) of the Judicature ( Court of Appeals )
Rules.
Second appeal
Sec 72 &74 CPA, Rule 32 (2) of the Judicature ( Court of Appeals ) Rules.
The meaning of an appeal on a point of law was interpreted and
defined in Lubanga Jamada v. Dr. Dumba Edward: Court of
Appeal Civil Appeal No. 10 of 2011, Nalukenge Mildred v. Uganda:
Court of Appeal Criminal Appeal No. 67 of 2008 (unreported) and
P.C Wabwire Anthony v. Uganda: Criminal Appeal No. 152 of 2009
Hearing of first and second appeals;
Rule 98, 99,100,101,102 of the of the Judicature (Court of Appeals) Rules.

Interlocutory applications in appeal processes;

Rule 2 , Rule 42 Judicature ( Court of Appeals ) Rules. – where the High Court
has concurrent jurisdiction, then the application must first be made in the High
Court. Also see Rule 50 ,51,54 ,56 of the Judicature ( Court of Appeals ) Rules.
i) Application for extention of time to file an appeal- The application is filled in
the appellate court. see Attroney general v Dan Rubombora Miscellaneous
application No. 41 of 2008 , In the Matter of Ranch on Lake Limited (in
Receivership) HCT-00-CC-MA-0537-2005 Hon.Justice Egonda-Ntende as he
then was ) (Commercial Court Division) .

It is the duty of the intending appellant to actively take the necessary steps. see
Utex Industries Limited v Attorney general SCCA pp No. 52 of 1995, Mparo
General Construction Limited v Uganda National Examination Board ,CA Civ
App No. 82 of 2004

Applications for stay of execution, stay proceedings or an injunction as

provided for under Rule 6 of the Judicature (Court of Appeals) Rules are heard
by a single judge. For stay of execution see P.K Sengendo v Busulwa Lawrence ,
Male Abdu , Civil Application No. 2007 0f 2014, Kyambogo University v Prof
Isaiah Omolo Ndeige Civil Appl No. 341 of 2013 for a temporary injunction see

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Yahaya Yusuf & 2 Ors v Sauda Nabunya & 3 Ors Civil application No. 89 of
2023

Application for leave to appeal O. 44 r 2 CPR

See DR Rubinga vsRubinga vs Yyakobo kato and oOrs CIVIL APPEAL NO. DR.
MF 1/90, “Leave to appeal to the High Court shall not be granted except where the
intending appellant satisfies the High Court that the decision against which an
appeal is intended involves a substantial question of law or is a decision appearing
to have caused a substantial miscarriage of justice.” See section 232 of the
Magistrates courts Act 1970

Also see Rule 40(2 (a) & (b) of the Court of appeal rules and Sango Bay Estates
Ltd & Ors v Dresdner bank AG (1971) EA 17 principles on leave to appeal from an
order in civil proceedings will normally arise where prima facie it appears that there
are grounds of appeal which merit serious judicial considerations, Kasami & Co.
Advocates v Lab Construction Ltd Civil Appeal No. 224 of 1996,-

Application for leave to file additional evidence Rule 30(2) full bench see The
Attorney General versus Paul K. Ssemwogerere and Others, Constitutional
Application No.2 of 2004 (SCC 2/04) unreported. , Hon. Bangirana Kawoya vs
National Council of Higher Education Misc. Application No.8 of 2013. ( SC)

Application for Review Rule 2(2) of the Judicature ( Court of Appeals ) Rules.
(full bench)

see Isaya Kalya & 2 Others vs. Moses Macekenyu Ikagobya: S.C.C.
Application No. 28 of 2015 as hereunder:

“Where a party believes that the court made an error of fact or law in its
judgment, that party will only succeed in moving the court to correct that error
if the error falls under the three instances indicated in rule 2(2) of the rules of
the court. And as rightly stated in Haridas v. Suit. Usha Rani Banik & Others

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(supra) the error should be apparent on the face of the record where, without
argument, one sees the error “staring one in the face”.

Further in Otim v. Uganda: S.C. Crim Application No. 14/2018, the Supreme
Court the following grounds under rule 2(2) have to be shown so as to have
the Court review its judgment for purposes of: (i) achieving the ends of
justice, (ii) preventing abuse of process of the Court; and (iii) setting aside its
judgment that has been proved null and void after it has been passed.

Application for Correction of errors in a Judgment of court Rule 36 ( full

bench) This rule is restricted to accidental errors or omissions on the part of
the Court. see Ms Fang Min v. Belex Tours and Travel Limited: SCCA No. 06 of
2013 consolidated with Civil Appeal No. 01 of 2014: Crane Bank Ltd v. Belex
Tours and Travel Limited

Form of amendments see Rule 17

Appellate mediation.

1. This is done by the consent of the parties as is provided for under R. 94(3) of
the Judicature (Court of Appeals) Rules.

9.5 Reference List

Statutes

1. The Constitution of the Republic of Uganda, 1995;

2. The Judicature Act, Cap. 13;
3. The Evidence Act, Cap 6;
4. The Commissioner of Oaths Act Cap 5;
5. The Illiterates Protection Act, Cap 78;
6. The Civil Procedure Act, Cap. 71;
7. The Magistrate Court Act, Cap 16.

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Rules/Regulations

1. The Civil Procedure Rules, SI 77-1;

2. The Commissioner of Oaths Rules, 2015;
3. The Judicature (Court Fees) Rules SI 13-1;
4. The Judicature (Court Fees, Fines and Deposits) Rules SI 13-3;
5. The Judicature (Court of Appeal Rules) Directions SI 13-10;
6. The Constitution (Integration of ICT into the Adjudication Processes for Courts
of Judicature) (Practice) Direction SI 06/2019;
7. The Magistrate Court (Magisterial Areas Instrument) SI 16-1;
8. The Advocates (Professional Conduct) Regulations SI 267-2.
Cases
1. Hussein Griffith vs. Isingoma Kakiza Civil Appeal No.8 of 1995;
2. Ojijo Pascal vs. Geoffrey Brown M.A 758 of 2017;
3. Nyamogo & Nyamogo Advocates vs. Kago [2001] 2 EA 173;
4. John Immaniraguha v Uganda Revenue Authority , Mis Appl No. 2770 of 2023
5. Kifamunte Henry vs. Uganda SCCA No.10 of 1997;
6. Re: Nakivubo Chemist (U) Ltd (1979) HCB 12;
7. Attorney General & Uganda Land Commission vs. Mark Kamoga SCCA No.
8/2004;
8. FX Mubuuke vs. Uganda Electricity Board. HCMA No.98 of 2005;
9. Lawrence Musiitwa Kyazze vs. Eunice Busingye SCC Application No.
18/1990;
10. Fang Min vs. Dr. Kaijuka Mutabaazi Emmanuel SCCA No. 06 of 2009;
11. Rosie Naikoba vs. National Medical Stores (Civil Miscellaneous Appeal No.
366 of 2020) [2021] UGCA 22.

12. P.K Sengendo v Busulwa Lawrence , Male Abdu , Civil Application No. 2007
0f 2014,

13. Yahaya Yusuf & 2 ors v Sauda Nabunya & 3 Ors Civil application No. 89 of
2023

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14. Lubanga Jamada v. Dr. Dumba Edward: Court of Appeal Civil Appeal
No. 10 of 2011,

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