CIVIL PROCEDURE

1.   COMMENCEMENT OF PROCEEDINGS:

(1) Civil Procedure Act:

 S.2 definition section manson house case.

 S.3 Affirmation of powers of court to hear cases unless limited otherwise by law.

S.19 every suit shall be instituted in the manner required by the law.

(II)    Civil Procedure Rules (as amended)

     0.4     Institution of suit by presentation of plaint to the court, and     entry on register.  R1. Court fees must be paid (look at decided cases)

                          

    0.36:         Summary procedure on specially endorsed plaint, judgment in default, setting aside decree.

0.37:          Circumstances of originating summons, trustees etc vendor of land, mortgage member of partnership, discretionary nature of order there under.

    0.38:         Company matters except winding up, application by petitions, r.3

   Application by motion: rectification of register or summons in

   chambers r.4

   Application by motion only r.5

   Application by summons in chambers r.6

   All proceedings to be entitled in the matter of the Company Act r.7

      0.52:        Save where expressly provided all other applications to court shall   be by notice of motion. R.1

Requirement for notice, r.2 grounds evidence affidavit r.3 want of notice r.4, exceptions to general rule of hearing in open court to summons in chambers.

CASES:

1. UNTA Exports V Commissioner of customs [1970] EA 648:

     a proceeding is deemed commenced when a plaint is presented and a court fee is paid.

    2.   Kaur V City Auction Mart [1967] EA 108: Mode of service of summons,    accompanied by plaint, summons normally fix the day for appearance of a defendant, they must be served on the defendant personally.

  3.    Munyagwa Nsibirwa V Kamujaguzi [1972] EA 330: As a general rule, actions should be commenced in the lower courts.  But High Court enjoys unlimited jurisdiction, filing in H.C did not render suit defective. (See s.219 of the MCA)

0.37:   O.S are important to settle matters by court without the expenses of bringing an action in a usual manner which do not involve a serious question.  They are returnable before a judge and are framed in the form of questions to be decided by court, and the facts on which they are based.

     4.   In re- Hajj Suleiman Lule [1978] HCB 207, The purchaser sought a vesting order to transfer land in his name and since the transfer had not been completed, He proceeded under 0.37 r.3 as a purchaser of immovable property. It was application once the matter was connected to the sale and not existence of a contract of sale.

     5.   Nakabugo V Drake Serunjogi [1981] HCB 58: In this case the dispute was over existence of a contract of sale.  Held: once the facts are complex and involved a certain amount of oral evidence, originating summons is not the proper procedure to take, once there is a serious qn. of law.

     6.  Originating summons are suitable where the question is one of statute, construction or document.

      7. Chamber summons are usually for interim applications, they don’t commence pleadings. 0.47 r.1 and r.2 temporary injunctions and interlocutory orders.

      8.  Where no mode of commencement is provided, Notice of Motion is applicable 0.52 r.1 pg 174 CPR.

    9.     Notice of Motion applies to all open court cases, notice must be made with summary of exd.

   10.  Originating summons they are applied only in certain cases specified in r.1 thereof of 0.37.

ISSUE AND SERVICE OF SUMMONS:

0.5:  Issue and Service of summons, r.9 0.5 service on several defs, r.10 on person or agent, 8. It must be signed by judge or delegate; r.18 must be displayed in a conspicuous place.

   0.36:   Summary Procedure applicable to H.C and C.M only, suits laid out in r.2 affidavit that there is no defence to the suit r.2 (b), defendant can only defend suit by leave of court.

              If def does not appear, entitled to sum in plaint, leave to   defend mat be conditional suit may be disposed of summarily, decree may be set aside.

0.29:r2    Service on corporation, secretary, director, prince, officer, or redg office.

0.30:r3    Service on one of partners or regd office of partnership.

S.20CPA: Once a suit has been instituted the def. Must be served in the manner   prescribed and shall be prescribed to file a def and answer the claim.

   S.21 CPA: Service where the defendant resides in another district.

   S.12CPA: Suits are to be instituted where the subject matter is situated.

CASES: 

1. E.A plans Ltd V Bickford Smith [1971] ULR 203: Summons are a command of court, had to be signed or officer properly delegated.  Absence of delegation, summons could not have the force of law.

2. Kaur V City Auction Mart [1967] EA 108, originating summons are normally accompanied by plaint.

3. Re Pritchard [1963] ALLER 873: Function of summons; they fix the day for appearance and must be served on the def in person. (See 0.5r8 on who may deliver summons).

4. Tindisasirwa V Kabale Town Council [1980] HCB 33: It is general practice in as far as is possible to serve person himself.  The process server must have an affidavit of service.

5. Opa Pharmacy V Howls SMC George [1972] ULR 113 appearance under 0.9r.1 connotes physical appearance a def served under o.5 may have a recognized agent or an advocate dully instructed entering file a def for him 2,000Shs was allowed as instruction fees, during taxation, the defendant was served, filed a defence but was absent at hearing.  Defences filed included absence or notice.  Appearance under 0.9r.I meant simply the delivery if a writer word and memo of appearance stating that the def would appear in person Appearance connotes at physical appearance.

6. Abe Ssenyange V Naks limited [1980] HCB 30 mere physical appearance does not suffice, party must indicate he is appearing in the matter.

7. Okyaya V Kirunda [1979] HCB 46: appearance of def’s counsel is sufficient legal appearance in the case of Kyamugabi: [1975] HCB 57: sitting in the wrong court allowed as sufficient cause for non-carance, this defence where the summons are served on the def.

PARTIES.

Reference to parties who can sue or be sued. Legally etc.

0.1:    Where a suit is brought to there is a joinder of parties and refers to where 2 or more persons joined either as pfs or defs, each side are ref to as parties. Names of all parties must be set out clearly for ascertainment of parties to the suit.

0.1r, 1: joinder of parties; r.2 power of court to order separate trials, r.3 joinder of defendants.

   r.4        Judgment for one or more parties, joinder for parties liable on the same   contract.

0.1 r.10 allows amendment of parties, correction of bona-fide mistakes, but

             substitution is impossible if a suit is a nullity:

0.32r.1 allows minors to sue through next friend with his written authority.

0.32r.3: Appointment of guardians and litem.

0.30r.1: partners can be sued in the name of the firm.

0.1r9: No suit shall be defeated for non joinder.

      Sabiiti Musoke [1978] HCB 189: 0.29 r.2 is not mandatory, it is merely directing, failure to comply does not mean automatic dismissal of the suit.

   Jingo [1974] HCB 294 applicant lied about his age, that he was 20 years whereas not application was struck off with costs.

   Khiddu Musisi V Namulemye [1965] majority age is 21 years.

         0.32r15 rules applicable to minors are also applicable to persons of unsound mind.

      JOINDER AND M IS JOINDER OF PARTIES:

Barclays Bank V Patel [1959] EA 214, 0.1r331r.3 only allows persons to be joined in that manner only where persons are engaged in an act or series or acts/transactions.  Here the acts complained if comprised of different causes of actions and transactions.  Obj sustained.

Musibwa Kyazze V Eunice Busingye S.C Appeal No. 3 of 1990: No. suit should be dismissed for non-joinder or misjoinder.  The rights of relief must come out of the same transaction.

Bank of India V Shah: Bank used on defs severally as guarantors on overdrafts on monies lent to company 1^st def objected that there was misjoinder.  Under 0.1r3 each guarantee formed a separate cause of action, and 0.1 r.3 was inapplicable.

Katangaza V A.G [1980] HCB 114: suit for injury brought by teacher in the course of employment, Wrong party sued since the teacher was under Local Administration and Government and L.A were separate bodies.  Suit had been brought Vs wrong defendant.

Kanani V Desai (1954) ULR 125: Where two parties occupy separate parts of the same building, and each is told to quiet the premises, they cannot be joined as defendants

SUBSTITUTION OF PARTIES.

Sempa Mbabaali V Kiiza [1985] HCB 46: The right to sue defs severally and jointly was because a common question would arise if separate suits were brought against the defs.

Pathak V Mckwe: Where orig. pf was dead at the time of filling of suit and subset made by Mgt. On appeal, 0.1 r.10 (2) was inapplicable; the orig. suit was a nullity.

Benjamin Ssajjabi V Timber Manufacturing Limited [1978] HCB 207 10 (2) inapplicable where the company had no legal existence.  Company sued as ltd liable.Co.yet it was unincorporated.

 INTERVENTION BY PERSONS NOT PARTY TO A SUIT

1. Amicus Curiac: this involves a person intervening and voluntarily giving on a matter of law or a matter in which a judge may be mistaken or doubtful:

2. Dritoo V West Nile District Administration [1969] EA 324: pf had been unlawfully arrested and assaulted by local police.  In the proceedings the AG was called to stand in as A.C.

3. Kayondo and Kakungulu V Polycarp Kakooza and others H.C.C.S. 35/72: A.G was called in as A.C

4. Oriental Construction Company Court rejected appl. By counsel to appear in pleadings a.c as it is court to invite.

REPRESENTATIVE SUITS.

          0.1 r8: allows one person to sue or defend on behalf of all in the same interest.  There is requirement for notice to all other parties.

       Johnson V Mosts [1969] EA 654: Pf was a minor who sued thru a next friend for injuries sustained while in an unincorporated persons clubs.  He sought leave of the court to proceed Vs one of the members of the club.

    Makula International V Cardinal Nsubuga and Anor H.C.C.S: There was a breach of contract between the pf and the def Catholic Centenary Assa.  To print T-shirts in consideration for 10% an application was made to bring a rep suit Vs the Cardinal and Anor was filed before hearing whether the plaint could stand b4 rep order had been made.  0.1. R8 and 9 can’t be waived, the suit was premature.

THIRD PARTY PROCEEDINGS: 0.1R.14-21

See 0.1r.14, notice to third party, and r.15 effect of default of appearance.

General scope deals with cases applying all disputes arising out of trans. Btn a pf and df and btn a df and third party which can be tried in the same action.  Where the pf wishes to move against third party personally he has to file for a joinder and will need to amend the plaint.

1. Barclays Bank V Holmes [1923] 1 KB 221: The obj of 3^rd party pleadings is to make the 3^rd party bound by the decision btn the pf and def.  And to prevent multiplicity of actions.
2. East Mengo Growers Coop Union V N.I.C [1985] HCB 94: K of insurance of m/v. Failure to appear once third party notice is given entitled the pf to judgment. 0.1r.16. consent judgment given on a Sunday was false, and refused to satisfy the pfs claim.  And applied for third party notice against the counsel for the pf who was conspicuously absent at the hearing.  Counsel for the def prayed court for judgment as against the 3^rd party.  Since the third party had ignored the summons, there was proper cause for judgment to be entered against him.  The third party had no indemnify the def against costs incurred.
3.  Sango Bay V Dresdner Bank [1971] ULR 72:01r14-18 limit 3^rd party proceedings to cases where the def claims to be entitled to a remedy of indemnity & contribution.  The s/matter must

INTERPLEADER PROCEEDINGS

Proceedings relate to pty or money in the hands of a 3^rd party who isn’t owner thereof and doesn’t know the owner, yet he wants to protect himself as against two parties commencement is by notice of motion.  S.60 of CPA.

1. 0.34r.1: practice of institution of i/p; where no suit is pending by an originating summons where suit is pending by notice of motion.

2. 0.34r.2:  the applicant must depone by affidavit that he claims no in the

    subject matter; there is no collusion with one of the parties and the appl. is willing to transfer the s/m into ct.

  3.  0.34r.3:  once appl. is made by def.  All proceedings are stayed.

  4. 0.34r.6:   appl. may be entitled to costs.

CAUSES ACTION:

There must be a cause of action.

1. o.1r4: allows a pf more than one relief.

2. Sempa V Kiiza [1953] HCB 16 the plaint must show that the enjoyed a right and that the right has been violated and that the def is liable.  Anticipatory breach is not actionable.

3. 0.2 r.4 provides for joinders of causes of action.

4. Barclays Bank V Patel [1959] EA 214: Different causes of action accrue on different dates and against different defs.  The circumstances in which the liability arose on the guarantees was different.

5. Karmali V Desai [1953]: Landlord sought to eject 2 tenants from different actions of the property.  The tenants were separate and distinct.  Each tenant’s circumstance and distinct cause of action.  Court ordered separate trials.

6. Mubiru V A.G [1971] ULR 226: The Law Reform Misc Prey Act proving action had been brought in 8-12 months.  The pf sought an amendment the effect of which was to bring a new cause of action Vs new defs.  Amendment could not be used to stretch the bring a new cause of action barred by the limitation imposed by the statute.

7. Nkalubo V Kibirige [1973] EA 102

8. 0.6 r.6 where a w.s.d does not plead that the plaint disclose no cause of action it cannot be pleaded at the trial, Opika-Opoka V Munno Newspaper [1990]

9. 0.6 r.5 failure to disclose cause is remedied by application to struck out plaint.

     Darcy Jones [1959]

PLEADINGS:

PLEADINGS AND AMENDMENT OF PLEADINGS’ ISSUES

S. 2 CPA: any petition or summons and also include any statements in writing claim or demand of any plaintiff or defence or counter-claim of the def. trial is ltd to issues in the plaint.

0.5. r.2 plaint is served together with summons.

0.8. r. 1. the def must file defence w.s.d which is a formal document in which the def denies or admits the claim.

0.9. r.4. If no appearance is entered, judgment may be entered in a default.

The pf is allowed to apply for judgment in default.

0.9r.20 provides for proceedings exparte

PLAINT

 

That the pff’s rights have been violated

That it is the def responsible for the violation                                 authority Sempa

That the pff has sustained hydrias as a result of the violations     Kiiza, Auto Garage

That he is entitled to damages/compensation                              V Motokov

1.    S. 19 of the CPA: every suit shall be instituted in the manner provided in the rules

2.    0.4. r.1 every suit shall be instituted by presenting a plaint to court.

3.    Requirements of a plaint are laid out in 0.7.r.1

4.    Mutongole V Nyanza Textiles Limited [1971] ULR 131: counsel for the def in the middle of evidence by a witness informed court that he had just discovered that the plaint did not show any averment as to the jurisdiction of court, on appeal; this was a useless surphange a statement that court had jurisdiction.  The statement did not bestow jurisdiction.  It had no magical parties.  The facts disclosed that if had jurisdiction.

5.    Lake Motors V Overseas Motor Transport [1959] EA 603, if a plaint shows the pf enjoyed a right, and the right has been violated the def is liable, there is a cause of action, if any of these essentials are missing, there is no cause of action.

6.    Clementina Nyadoi V East African Railways [1974] HCB 122: The def in a s.d contended that the plaint did not disclose a cause of action for failing to disclose that the defendant’s summons were acting in the scope o authority. 

7.    Mubiru V Byansiba: a plaint is struck out if it omits to show that the defendant was acting in the course of his employment.

8.    Eriabu Lukyamuzi V House and Tenant Agencies [1983] HCB 74. Technicalities have a limit court cannot be delivered with niggling, meritless and technical points.

9.    The fundamental rule of pleadings is that is that they will be nullified if it were held that a necessary fact not pleaded must be implied.

10.  Sullivan V Ali Mohammed Osman: if a plaint shows that a pf enjoyed a right and that has been violated, and that the def is liable, a cause of action is shown or disclosed and any defect or omission may be put right by amendment.

11.  Grounds for rejection of plaint: 0.7 r.11

12.  Documents must be filed with the plaint 0.7.r.8

13.  Immovable property must be described 0.7.r.3

14.  Apollo Hotels V Takene Home Limited; where more than one relief is claimed, it must be stated.

PURPOSE:

1. Makula International V Nsubuga: ct has no inherent or residual powers to extend time provided by statute.
2.  Epaineto Mubiru V Uganda Commercial Bank [1971] ULR 144: the purpose of pleadings is to let the other party know the outline of the adversary’s case to prepare a defence.  Each of the alternate pleadings must show this.
3. Bisuti V Busoga District Administration [1971] ULR 179
4. Mbarara Coffee Curing Works V Grind lays Bank
5. Talikuta V Nakendo [1979] HCB: it is a statutory rule of pleadings that is bound by his pleadings.  But if particulars are given in undue details and what it is proved varies from them in ways that are material, it remains the duty of court to see that justice is done.
6. Gandy V Cespar Air Charters [1956] as a gen. rule, relief not founded on pld, cannot be given.
7. Patel V Fleet Transport Co. [1960] EA 1025: an incorrect description of a particular fact should not be fatal where the particulars of the claim have been given with reasonable precision.
8. H.J Stanley and Sons V Alibhat: allegations at the hearing must not be inconsistent with the pleadings. Every thing must be pleaded in the plaint.
9. New Era Stores V Occan Trading Company where pfs cause of action or title to sue depends on a statute; you must plead all facts necessary to bring you within protection of the statute.
10. Naesinh V Valji Shukla there is not duty to anticipate a defence.

MATERIAL FACTS:

   0.6 r.1 on material facts, every pleading must contain only a stmt in concise     form    of the material facts in a given format.  They must allege with certainty, proof of allegation, pleading should not be by way of avoidance, thru partial acceptance.

     These are facts which in the opinion of the part give a right or impose on a def a  duty.

     Material facts are those necessary for the founding of an action.

   Sempeebwa V A.G [1988] materiality depends on the circumstances of each case.

0.6. r.5. any new fact must be specially pleaded

0.6. r.6 parties are bound to their previous pleadings except in cases of petitions or appls.

      Talituuka V Nakendo: It is a statutory rule of pleadings that parties are bound by their pleadings.

PARTICULARS

Particulars must be given ie fraud, misrepresentation, undue influence etc.

1.    Patel V Khalsa Engineering Works [1960]: a plaint which does not ss particulars is defective.

2.     0.6. r.2: where a party relies on misrep. Etc in which particulars are required, such particulars with dates shall be stated in the pleadings.

3.    Okellokello V UNEB: C.A N0. 12 of 1987: 06 r.2 is mandatory; dates must be given and must always be under a definite head entitled particulars of fraud.

4.    Kampala Bottlers V Damanico C.A 22/92 where fraud is pleaded, particulars or a fraud must b given.  Fraud must be attributed be it directly or by necessary implication, there must be an act.

5.    Lubega V Barclays Bank [1992] particulars of fraud must be pleaded as a legal requirement failure to do so is not a mere irregularity curable by adducing evidence.

6.    David Acar V Acar Aliro [1982] HCB 60: a party who has not pleaded fraud or led evidence on it in a lower court cannot plead it on appeal.

7.    0.7 r.11 plaints based on negligence must specially set out the alleged negligence.

8.    0.6 r.3: where def pleads that the plaint is bad in law, particulars will be ordered.

9.    Rasulbhai V Shaukatali Chaudrey [1963]: pf is 0.6 r.3 (ibid) is invoked are entitled to apply for another and better particulars on in formation in the defence.

10.  o.6 r.5:

11.  Shah V Patel [1961] where a def is liable on a bill or note, it is for him to aver facts which disentitle the pf to sue.

12.  Central Masaka Coffee Co. V Masaka Farmers and Production [1991] party replying on a point of law must plead it, illegality brought to attention to court overrides all questions of pleadings including admissions.

 VALUE OF MONEY:

1.    0.7. r.2. where value of money is involved, it must be stated

2.    0.7. r.3. immovable property must be disclosed

3.    0.7. r.5. Plaint has to show that the def is or claims to be interested in the s/matter.

4.    0.7. r.7. Relief claimed must be stated.

5.    0.7. r.11. a plaint may be rejected for failing to disclose a cause of action

6.    Mikidadi Kaweesa V A.G. [1973] ULR 107: pf sued for general damage on being shot.  He did not indicate whether he had been accidentally shot or not.  The plaint did not disclose of action.

WRITTEN STATEMENT OF DEFENCE: 0.8

1.    Kanji David and Damdan [1934] EACA

2.    Sengendo V A.G. [1971] HCB 304

3.    Talikuta V Nakendo [1979] HCB 276

4.    Nampera Trading Company V Semwanje

5.    Hasham Suleiman V Sayani [1963] 0.6 r.12 where def in a suit for defamation in w.s.d plead privilege, there is no need to plead express malice in reply.

6.    Byabashaija V A.G [1992] amended w.s.d filed 6 months late without either court’s leave of permission or consent of other party is inadmissible.

7.    0.8 r.2 defence may be filed by way of counterclaim.

8.    0.8 r.8 where court refuses to hear counterclaim, it must become a fresh suit under r. 12.

COUNTERCLAIM

  It is a distinctive action and regardless of whether a pf’s action or claim is discontinued.

A set-off is not a separate action.  It is part of the same action and its fate is determined by the fate of the main action.

A counter claim must have a cause of action and must specify relief sought from court.  There may be new defendants in the counter-claim.

1.  See 0.8.

      2.  0.8. r.8 where a person not party to the suit is included in the counterclaim, he   shall be summoned to appear.

3.  0.8. r. 10, this appearance is as though he is party to the suit.

      4. Karshe V UTC [1975] HCB mere omission of a counterclaim does not stop a defendant from bringing a fresh action against the plaintiff.  Pf had judgment awarded against him in a suit for negligence.  Brought a fresh suit, claiming 50% of the damage award.  Prelim objection was that this issue had not been raised in the previous suit.  It was not compulsory to counterclaim the pf was not precluded from brining a fresh suit.

     5.  Nampeera Trading Company V Serwanga [1973] ULR 169: procedure for setting up a counterclaim if it is to be enforceable title, parties etc.

6.  0.8 r.11 reply to counter-claim must be made within 15 years.

AMENDMENTS

1.    Refers to correction of errors including curing of defects in pleadings. Amendments may be done with leave of court once leave is applied for, costs must be paid under 0.6 r.19 and 20.

2.    Amendments may also be done within 21 days of the date mentioned in the summons w.s.d may be amended within 14 days from its filing, where w.s.d includes a counter-claim amendment must be made within 28 days.

3.    0.6. r.23 allows a party to reply to an amendment.

4.    Amendment must not amount to departure from pleadings.

5.    Kasolo V Nile Bus Service: substitution of injuries which were in question amounted to a serious departure from pleadings.  

6.    0.6 r.18 amendment must be before hearing.

7.    Nziraine V Lukwango: suit was brought within limitation period but amendment was sought 4 years after the incident complained if.  Proposed amendment to sue on behalf of estate and beneficiaries instead of personal capacity amounted to a fresh cause of action.  UCB V Painetto Mubiru: the law does not allow statutes of limitation to be circumvented.

8.    0.6. r.20 the opposite party may apply to court within 15 days to disallow amendment.

9.    0.6. r.23 amendment must be served on the opposite party in the same manner of summons.

10.  Eastern Bakery V Castellino: allowing amendments is the discretion unless the judge proceeds along the same principal.  Once sought before hearing they must be allowed unless they cause injustice the other side.

11.  General Mgr E.A.R.H V Thierstein [1968] amendment may be allowed at a very late stage where it is necessited solely by a drafting error and there is no element of surprise.

12.  Lakhani V Bhojani [1950]: 0.6. r.17 appeals against the  exercise of its discretion by the low court will only be entertained where they are based on some other embarrassment or other injustice.

13.  Clara on pleadings: Amendments however negligent or careless should be allowed, there is no injustice unless it can’t be compensated by costs, but it must not bring a wholly new cause of action.

14.  African Overseas Trading Company V Acharya [1963] application for leave to amend can’t be allowed where it introduced a new cause of action which is inconsistent with pleading. 0.6 r.18.

15.  D.D Bawa V Singh [1961] an oral application to amend during the trial may be allowed if no injustice arises to the other party.

16.  Sendegeya V Masaka Cooperative Union [1992]: appl. to amend defence late may be allowed where it facilitates resolution of issues at hand.

TRIAL PROCESS:

1. 0.50 r.1: on powers of the Registrar to act as court.

2. 0.50 r.3: powers to take interlocutory applications by the Registrar.

3. 0.50 r.2: in uncontested cases, judgment may be entered by the Registrar.

4. 0.50 r.4: power to order attachment and sale of property etc.

5. 0.50 r.6: for the purposes of 1-4 the registrar is deemed to be an open court where he exceeds his powers, decisions are a nullity.

6. Edward Karoli V Mubiru: reg exceeded powers by entering a judgment in default of appearance in a manner not authorized by the rules; it could not stand and was a nullity.

TRIAL WITHOUT HEARING:  not to waste creditors and court’s time on clear claims.

1.    0.9. r.4 instances are in default to appearance, interlocutory judgments and summary suits.

2.    0.36 provided for summary suits: applicable only in the High Court, G 1 and CM.

3.    Nakabago Cooperation Society V Nshenaga: CPR providing for summary judgments are inapplicable in G II and G111 courts whose rules are set out in the schedule to the MCA.

4.    A summary suit is taken out where the pfs are certain the def has no defence.

5.    0.36 r.2 sets out the ambit of summary suits.

6.    Cooperative Bank V Kasiko: the amount of money claimed does not determine whether a suit should be summary or not once conditions of 0.33 are fulfilled.

      FURTHER AND BETTER PARTICULARS:

1.    0.6 r.3; some particulars are required by statute under the Law Reform and Misc Proy Act.

2.    They depend on each particulars case.

3.    Esso Petroleum V Southpart: pleadings may be unnecessary or scandalous or may tend to prejudice, embarrass or delay the fair of the accused.

4.    Joshi V Uganda Sugar Factory [1968] where defs attitude is purely defensive, you can’t compel him o make positive assertions.  Particulars of when accident occurred neither were nor required to give effect to a complete denial and failure to furnish was not a surprise.

5.    Abdullah Semanji V Jivanjee [1968] a pf not in possession of f.b particulars may be ordered to furnish the best particulars he can.

6.    Rateliffe V Evans to insist upon less than f.b would be to relax old and intelligible principles and to insist on all would be vainest pedantry.

7.    Kapiru V UTC: part (s) will only be made for facts alleged in pleading and not denied.  No particulars should be made for immaterial allegations.

8.    Uganda Credit and Saving Bank V Kirya [1960] failure to furnish f.b within a fixed time will lead to dismissal of suit.

9.    Mubiru V UCB: distinction between f.b and application to know what kind of evidence will be adduced.

      EXPARTE PROCEEDINGS:

1.    0.9. r.3: where a def fails to appear a suit may proceed as if the party received summons.

2.    Kanji Naran V Veliji Ramji [1954] filing of an affidavit of service is necessary.  Under 0.9 r.12 where it appears there was no proper service ct must set aside judgment.

3.    Korutaro V Mukaira [1975] court cannot pass judgment unless proc is complied with.

4.    Kitumba V Karibwire [1981] one hearing notice cannot be relied onto proceed exparte.

5.    0.9 r.4: Eskeen V Kutosi: it is unnecessary for the pf. To formally prove his case.

6.    Sekitto V Nsambu [1987]: judgment cannot be entered exparte on an unliquidated demand, the suit should be set down for assessment of damages under 0.6. r.6.

7.    Pan African Insurance Co. V Uganda Airlines [1985] 0.6. r.6 entitles the pf to judgment in default of appearance or defence.

8.    Karoli Mubiru V Kayiwa Edward [1979] judgment of court without jurisdiction is a nullity Ex-parte judgment does not cease to apply where a decree has been extracted.

9.    Didi V Namakajjo [1989] failure to write a w.s.d raises a presumption submission of claim in plaint and failure to appear and file w.s.d means no entitlement to be heard.

10.  0.29 an ex-parte judgement may be withdrawn, failure of officer of company to appear must not be used to make a company suffer for a c.s  a junior officer; Serwadda V Popular Front etc Ltd.  More License is given to corporate bodies, and public bodies the same private bodies. Kiwanuka V Mukasa.

11.  Fisher, Simmons & Rodway (EA) V Visram: Appearance may be out of one.

12.  Premji Patel V Ranji Jethabai [1947] suit Vs Joint defs.  Case can’t proceed ex-parte as one who has not filed w.s.d until case vs.  The other has been determined.

13.  Total Oil products V Nauto Limited [1968]: in case of joint liability, judgment Vs one or more destroys action against the others under 0.9. r.8A.

14.   Zirabamuzaale V Corret [1962] a def who has failed to file w.s.d is not entitled to notice of hearing.

15.  Patel V  Othwele [1955]: defence filled out of time cannot be ignored.

16.  Claver-Hume V British Tutorial College [1975]: failure to file opernate as an admission of all allegations except as to damages.

17.  Tindarwesire V Kabale Town Council [1980] once party has entered appearance, the suit should be set down for hearing.

18.  Sebei District Administration V Gasyali [1968] even if judgment has been approbated by the applicant, the court still has discretion to set it aside.

19.  Lebel V Lutwana [1986] sufficient cause should be shown in application to set aside ex-parte.

20.  Nsubuga V Kamya [1985]; relevant factors are:

(1)  Reasonable explanation as to why judgment was entered vs def.

11) Prima-facie reasonable defence

111) defence is disclosed in affidavit.

21. Kambale V Uganda Clays Ltd [1978] ex-parte will be set aside where pf served before plaint was filed and def did not file defence.

22.  Din Mohammed V Lalji Visram & Co. [1979] withdraw of advocates does not mean subseq.  Proceedings are ex-parte.

23.    Zikampata V Uganda Libyan Trading Co. [1979] def who does not file def is not entitled to be heard, and can only challenge correctness of ex-parte judgment in application to set aside.

24. Waljee V Kaggwa [1958] illiteracy in English no ground for non-appeara

WITHDRAWAL, DISCONTINUANCE AND ADJUSTMENT OF SUITS:

1.    0.25r.1 pf withdraws by notice and pays costs.

2.    Mulondo V Semakula [1982]: a pf may withdraw suit at any time before defence is filled and even after defence is filed but no other steps are taken in the suit without leave of court.

3.    0.25r. 3 withdrawal of counter-claim

4.    0.25r. 2 withdrawal by consent of parties.

5.    Phillip Matsanga V Buganda Saw Mills: pf sought to withdraw after giving evidence.  The object of the rule is not to enable the pf after satisfying to get a fresh opportunity to commence new proceedings to the prejudice of the other party.

6.    0.25 r.6: the rules governing withdrawal don’t relate to consent judgment.

THE TRIAL PROCESS PROSECUTION OF SUITS AND ADJOURNMENTS.

1.    Once pleadings are closed, the matter is set down for trial, and the pf takes out a hearing notice.

2.    0.17r.1 adjournment can only be granted with sufficient cause Buscom System V Kirya.

3.    Rattan Singh V Singh [1952] refusal to grant adjournment can be interfered where refusal amounts to a denial of justice.

4.    Abdala Habib V Harban Singh [1960] pf must be present or have explained absence.

5.    Salongo V Nantegolola: adj. is usu. To cater for new matters catching the other party unaware.

6.    Kayongo V Kampala Municipal Council [1963]: defence counsel’s consent is not sufficient cause for adjournment.

7.    Bawmann V Serwanga [1975] telephone call cannot be used to make application, counsel must hold brief for a plaint.

8.    Commissioner General of Customs V Home Garments: appellant asked for adjournment to call for witnesses from Kenya which was refused.  This was improper use of discretion.

9.    0.717 r.5 time limit between file of defence and actual hearing. 8 and 10 weeks respectively.

10.   Nantaba Musoke V Musoke application to dismiss suit under 0.17 r.5,pfs counsel had made no effort to fix suit for hearing, the suit’s pendance negat. Affected the defs rights.  Suit dismissed.

11.  Cronta V Afro-Trade Promoters [1978]: court will consider whether the pf or his advocates was to blame for the delay.

12.  Lalji V Hassanali Devji [1969] you cannot dismiss a suit down for hearing.

13.  0.17 r.6 allows court to dismiss suit for inordinate delay.

14.  Victory Construction Co. V Duggal [1962] this gives court chance to disencumber itself of records where parties have lost interest.

15.   Rawal V Mombasa Hardware [1968] does not preclude remedy for re-institution of suit.

16.  Nyiramakwena V Katariko: it is the duty of the pf to bring suit to early trial, it is impossible to have a fair trial after a long time.

    

 INJUNCTION:

1.    They deal with restraint of one party breaching a right of another.  The purpose of a T.1 is to maintain a status quo until the issues between the parties are resolved.

2.    S.40 of the Judicature Statue, 1996 lays down the powers of acts to grant is.

3.    S. 15 of the Proceedings against Government Act, an I cannot issue against government.  S.15 (1) (a) court can only make an order declaratory of rights of parties.

4.    Attorney General V Silver Springs: The import of ‘person’ in s.40 (bid) and 0.41 does not include government, govt machinery should not be brought to a halt or an embarrassment.

5.    Christopher Sebuliba V A.G a dist. Can be made between officers of govt and A.G but an injunction cannot issue against officers of government.

6.    0.41 r.3 amended by S.1 217/94: before granting an injunction ct shall direct that notice be given to a third party.

7.    Noor Mohammed Janmohammed V Kassamati Virji: 0.33 r.1 save in very exceptional cases an injunction cannot be granted unless there is a likelihood of injury which is substantial and could not be adequately remedied.

8.    Shah V Devji [1965] injunction to restrain exercise by m/gee of power of sale is such an inst.

9.    S.41 only the High Court can grant injunction.

10.  Babumba V Bunju [1988-90], Patel V Lukwago [1984], UMSCV Sheik Mulumba an injunction cannot be granted whose effect is to dispose of the whole suit.  The head suit relief tes.

11.  Nakaana & Co. V DAPCB [1987]: an application for an injunction is incompetent where a suit is pending in the lower court.

12.  Re Kikome Sa Millers [1977] where property is in danger of being warned an I can issue.

13.  In Re Theresa Kaddu [1980]: there must be a suit pending between the parties.

14.  0.47 r.2 ct will grant an injunction on such terms as it deems fit.  An injunction must be obeyed while it lasts.

15.  Madhvani V Madhvani [1989] an injunction should not be used as an impartment of oppression where there is a reasonable alternative.

16.  Application is made by chamber summons for those under r. 1 and r.2 the rest are by notice of motion under r. 9.

17.  Afro-Ugandan Bros V Mpologoma [1987]: a temporary injunction will be discharged where the purpose for which it was granted has ceased to exist.

18.  Robert Kavuma V Hotel International [1990]: there must be proof of sufficient cause.

19.  Giella V Casman Brown an inj. Is a discretionary remedy.

20.  Kiyimba Kaggwa V Katende an injunction is granted where the applt will suffer injury not easily recoverable by costs.

21.  E.A Industries V Tripods:  The test is a balance of convenience.

22.  Eva Mulira V Henry Kalamuzi: there must be a status quo to protect.

               SECURITY FOR COSTS:

1.    This is a defendant’s remedy: to protect him against loss, dissipation before conclusion of suit.

2.    0.26 r.1 application may be made by any of the defendants.

3.    Karim Elahi V Ahmed Mohammed [1929-30] inability of the pf to pay his debts is not sufficient reason to order security for costs.

4.    Heger V Car and General Equipment Co. [1967]: absence of the pf from the proceedings can lead ct to order for security for costs.

5.    Unindrom V Kawesi & Co. [1992]: Foreign co without local property or investments can be ordered to pay security for costs.

6.    S.404 CA: company may be ordered to deposit security for costs.

7.    Considerations for making an order for security for costs.

Namboro Vs Kaala

                          

·         Whether the applicant is being put to undue expense by defending frivolous suit.

·         Whether the applicant has a good defence to the suit

·         Whether the applicant is likely to succeed.

·         Only after these have been considered will the applicant’s poverty be considered.  If this was not the case, poor litigants would have not chance of enforcing their rights.

        

8.    G.M, Combined V A.K Detergents: security for costs is a discretionary remedy and it is meant to prevent abuse of process by impecunious persons and to prevent putting pressure on the pre

9.    UCB V Multi Constructors: defs poverty had been caused by the wrongful act of the pf.  And court would not order security of costs, def’s pty had been grossly undervalued.

ATTACHMENT AND ARREST:

1.    This is a plaintiff’s remedy.

2.    0.40 r.1 may be invoked where the def intends to delay the pf or obstruct or delay execution of a decree against him and depones by affidavit.

3.    0.40 r.2 the defendant may order to furnish security for appearance.

4.    0.40 r.4 where def fails to furnish the same, he may be committed to evil prison.

5.    0.40 r.5 furnishing security for production of property.

6.    0.40 r.10 attachment before judgment does not prejudice rights of persons existing prior to attachment.

7.    0.40 r.12 application under the Order shall be made by summons in chambers.

8.    0.40 r.3 sureties may apply to court to be discharged from obligations ensuring there from.

9.    Abby Mugimu V Mukasa Bossa: def non-national. Even if he were evidence had to be furnished that the respondent intended to flee the country.

             MAREEVA INJUNCTIONS:

1.    They are involved when the property intended to be attached belongs to the def or respondent or where the third party merely holding custody is ordered not to permit the def to take the pty from his custody.

2.    It has the effect of freezing the def’s assets until the suit is determined.

           PAYMENT AND TENDER:

  

1.    It is an act of the def depositing amounts of money he admits to be due wills proper of court.

2.    0.27 r.1 def may pay money into court in satisfaction of liability.

3.    Tender is a plea that he has always been ready to pay as dd before commencement.

4.    Anandas V Corbin: def paid into ct special damages pleaded and Shs 10,000 and pleaded for un liquidated damages. This payment must be mentioned in the defence the claim or cause of action.

5.    0.27 r.3 amount tendered must be brought before court.

6.    0.27 r.6 tender does not preclude the pf from proceeding with the action.

7.    0.27 r.7 once one the pf accepts the money he must give notice to the defendant.

8.    Harrison V Liverpool Corporation [1943] 2 ALLER 45: once sum is tendered and liability admitted, ct is tied and cannot give judgment for a lesser sum than has been paid.

      OPEN OFFERS:

1.    Def appreciates the pf is right and that his rights have been violated and instead of going through litigation makes an offer of money and serves the pf.  Parties may settle before going to trial.

      INTERROGATORIES:

1.    0.10 r.1 pf or def with the leave of court may deliver them to the other party.

2.    0.10 r. (b) the interrogatories must be dealing with relevant matters and shall not be admissible on circumstantial evidence of witness.

3.    Sebastian Gisuza V Charles Ferao Head of interrogatories. Stating the purpose was sufficient compliance with the rules:  They did not specify which matters were to be unanswered.

4.    Aggrawal V Official Receiver: the general principal ff is to allow such interrogatories as may be necessary either for disposing fairly or more expeditiously of the case or for the purpose of costs.

      DISCOVERY:

1.    0.10 r.12: application for discovery on oath of documents in the other party’s possession relating to any matter in question therein.

2.    Ct may refuse discovery it is not necessary for disposal of the suit.  Once a fact is known to only one party, the other party may apply for discovery.

3.    Dresdner Bank V Sango Bay def claimed the pf had obtained the documents mala fide whose particulars could only be given after discovery.

           ADMISSIONS:

1.    0.13 r.1 notice of admission.

2.    0.13 r.6 application for judgment on basis of admission.

3.    in Re Nsubuga: civil pleadings are admissible against the maker as confessions are in criminal cases and are admissible could be given after discovery.

COMPROMISE:

1.    0.25 r.6 court may order a decree after lawful agreement or compromise.

2.    S.69, no appeal shall lie to the higher court where a consent decree has been obtained.

3.    Ali Hassan: court cannot interfere with consent decree.

               CONTROL OF PROCEEDINGS:

1.    Joinder of persons may be done by court on application of the parties 0.1

2.    Kassam V Singh: this is possible where they arise out of the transaction.

                STAY OF PROCEEDINGS:

1.    S.6 CPA: stay may be ordered where the matter in issue arose in a previously instituted suit by the same persons or under whom they claim.

2.    S.97 allows court to stay proceedings to prevent abuse of court process a party may apply for consolidation.

                 TEST SUITS:

1.    0.1 r.1 where 2 or more persons have instituted suits against the defs and such persons under 0.1 r.1 can be joined as defs in one suit upon the application of the parties, test suits and decisions there from bring the others where they succeed and if it is struck out on technicality, it can be revived under 0.2 r.1.

2.    0.2 r.7 court has power to order separate trials.

      JUDGEMENTS:

1.    S.25 of the CPA after a case has been heard, judgment will be pronounced.

2.    S.85 (2) (f) court can give judgment in some special cases under the Act.

3.    Ex-parte Judgments: the other party excludes himself from judgment at the hearing of the suit by failing to enter appearance under 0.9 r.4 in a suit upon a liquidated demand, or a suit for mesne profits under 0.9 r.6.

4.    Sengendo V A.G.  At the time of filling the last defence the pf may apply for setting down the suit for hearing ex-parte 0.9 r.8 (a).

5.    Ex-parte judgments may be set aside under application by notice of motion under 0.9 r.8 (1).

6.    Ct may also proceed ex-parte under 0.9 r.17 (1) (a) where it is satisfied that the summons or notice of hearing was duly served.

7.    Nyombi V Nalongo: A decree passed ex-parte may be set aside under 0.9 r.24 if the defs is prevented by sufficient reason.

8.    Wilson Sekitto V Nsambu: not all suits qualify for setting aside under 0.9 r.4 and 6.

9.    Ex-parte final judgment can only be in case of a liquidated demand.

10. 0.21 r.1: judgment is delivered in open court.

11. 0.21 r.3 (3) Jud dement once entered can only be altered in the manner provided for under as 102 of the Act.

12. S.102 CPA: corrections, amendments to cater for clerical, arithmetical mistakes, ct has inherent jurisdiction to recall its judgment under the slip rule.

13. Libyan Arab Bank V Adam ct can recall judgment but cannot sit in its own judgment.

14. Pamiga V Jivray: the slip rule will only be applied if the court is satisfied that it will give effect to the intention of court at the time when judgment was given or in a case where a matter was overlooked.

15. S.2:CPA a decree is a formal expression of adjudication, it may be preliminary or final.

16. An order is not a decree and does not include a rule nisi.

17. 0.21 r.6: a decree contains relief and other determination of the suit.

18. Asadi Wokedi V Olaa: the general duty of extracting a decree is imposed on the successful party.

      COSTS.     

1.   S.27: costs of and incident to the suit shall be in discretion of the court which shall have full power to determine by whom and by whom out of what party and to what extent costs are to be paid.

2.   They are governed by Advocates Rules and Taxation of costs Rules (1982)

3.   Benjamin Sajjabbi V Uganda Timber Manufacturers: the party suing must have a legal existence and application for costs cannot be made to a non-existent person.

4.   Ernest Kato V Tom Aliwala: costs can exceed the pecuniary jurisdiction of the court, once they are incurred during the course of litigation.

5.   Evaristo Nyanzi V Zaverio: notice of taxation must be given to the defendant.  Taxation proceedings are appealable.

6.   Makula International V Cardinal Nsubuga: Under s.27 (2) costs are discretionary in terms of both regard and extent.

7.   UDB V Muggaga Construction: defs admitted liability of lesser amount but had not taken any steps to pay into court amount owing, there was no reason to deny costs to the plaintiff.

8.   UTC V Outa: failure to pay costs alone is not a good reason to deny the other party costs.

9.   Rwantale V Rwabushonga: a party can only be denied costs if it is shown that his conduct prior and during the proceedings has led to unnecessary litigation.

      EXECUTION

      Parties are bound by judgment.  Judgment of court cannot be in vain.  A party who refuses to pay court costs can be compelled by court to do so.

1.    S.28: provisions applicable to exec of decrees are applicable to exec of orders.

2.    S.30: exec may be extended outside court’s jurisdiction if the party moves there.

3.    S.29: a decree is only applicable to parties to the suit

4.    Rajamtex V Nyanza Textiles: execution cannot issue against a non-party to the suit (UDC).

5.    Semakula V Musoke: s.29 is only applicable to parties to the suit.

6.    S.40: allows execution against legal representatives property of the deceased ay be attached or sold by way of execution.

7.    S.36: execution may be limited in certain cases.

8.    S.37: transferee of a decree holds the same subject to equities.

      MODE OF EXECUTION:

1.   S.39: power of the court to enforce execution

-          Delivery of the party decreed

-          Attachment and sale or sale without attachment

-          Arrest and detention of any person

-          Appointment of a receiver.

2.   Henry Kato V Kantinti: whether a warrant of arrest can issue in respect of delivery of title deeds: execution may be carried out by arrest and detention of, there is no restriction on arrest.

3.   Czeezrenisiki V Markus: execution by arrest is one of the ordinary means of execution.

4.   Shah Jivray Hira V Gohil: an attachment order cannot take precedence over a commissioner of income Tax order.

5.   S.40 decree may be enforced against a legal representative.

6.   S.46: mode of seizure of property in dwelling house.

7.   S.48: private alienation of property after attachment is void.

8.   Laroya V Mityana Staple Cotton Co: lease granted after attachment was void.

9.   Lobo V Madhvani: a private transfer of party under attachment is void.

      ATTACHMENT OF DEBTS: 

1.  0.23 if a third party owes a debt, judgment will be given for one party against the other.

These are garnishee proceeding

2.    UCB V Ziritwawula: court must establish first that the funds are available and the garnishee admits indebtness to the judgment debtor.

      ATTACHMENT AND SALE:

     

1.   It involves actual seizure of the defendant’s property.

2.   S.45 details what can be attached except personal effects, books of a/c, a mere right to sue for damages, aright to personal services, stipends and provisions etc.

3.   Frank Sembeguya: Court officers are only protected, in respect of lawful acts done in execution.  Court brokers had no license hence no protection, removal of parts of the house amounted to attachment of the house yet an order was not for attachment of the house.

      STAY OF EXECUTION:

1.  0.43 r.4 an appeal to the High Court is not a stay of proceedings under the decree.

2.  0.43 r.4 (2): the ct which passed the decree is the ct to apply to for stay of execution.

3.  Norah Mayanja V Habre International: applicant applied for stay of execution.  The appellant had permanent residence on the disputed land and argued that she would suffer injustices if the bldg was demolished before appeal was disposed off.  Temporary stay can be granted ex-parte but a final order must be made with notice to the other party.

      CORRECTIVE REMEDIES.

1.   They are remedies available to a party disgruntled by a ruling of ct with original jurisdiction.

2.   Grounds are: misapplication of the law, improper exercise of jud. Discretion, reconsideration of decision.

3.   Review: s.83 and 0.46 from an order or decree for which an appeal is allowed but has not been preferred or from which no appeal is allowed.

4.   Re Nakivubo Chemists: any person aggrieved by order can apply, order for review will not be granted where circumstances are extraneous to the: Yusufu V Nokrah.

5.   Baguma V Kadoma: failure to file appeal due to lack of merit was not a ground for review.

6.   Grounds are:    

                                       -     Discovery of new and important matter of evidence

-          Evidence was not available at the time decree was passed.

-          There is a mistake or error on the face of the record.

-          Any other sufficient reason

7.   Review is applied for in the same court.

8.   Ndawula V Mubiru: failure to put memorandum of appearance on court file, ct would not have dismissed application to file a defence out of time if memo was put on file.

9.   An Application to renew is a bar to all subsequent application.

10. It only available in the High Court Chief Magistrate’s court and G.1 Courts.

11. Ssewanyama V Aliker: power of review is not exercisable by the Supreme Court it is best owed on the High Court.

12. Procedure applicable is notice of motion.

                      REVISION:

1. S .54 CPA.  The High Court may order for a record of a case in grounds specified under.

2. Procedure applicable: parties may give notice, but it will not revise where revision will cause serious hardship to any person Kabwengure V Kaniabi.

3. LDC V Mugalu an aggrieved party may write to the registrar to avail himself of s.84.

4. Juma V Nyeko even a decision of a Chief Magistrate on appeal may be revised.

5. Kahuratuka V Mushorishori and Co. it may be moved to revise.

                          Bameka V Dodovise Nviiria: a mere fact that court reached the wrong decision even on a point of law is not sufficient to cause a ground for revision, an irregularity cannot be acted  a pontiff it is material to a case an illegality cannot be led to stay.

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