REVIEW

This means to look once again. In legal terms review is the judicial examination of a case by the
same judge in certain circumstances. Section 82 of the civil procedure Act cap Act gives the
substantive right to review in certain circumstances and Order 46 of the CPR provides for the
procedure.

The provisions relating to review constitutes an exception to the general rule that once
judgement has been signed and pronounced by the court it becomes functus officio, meaning it
ceases to have control over the matter and has no jurisdiction to alter it as as Honourable Mr
Justice Christopher Madrama stated in the case of Standard Chartered Bank Uganda Limited v
Mwesigwa Geoffrey Philip Miscellaneous Application No 477 Of 2012 [ARISING FROM
MISCELLANEOUS APPLICATION NO 82 OF 2011].. That ...once a judicial officer...has made a
decision,he or she is deemed to have exhausted his or her powers and he or she cannot act
again in the same matter.

Who may apply for review

Any person aggrieved by a decree or order may apply for review in situation where an appeal is
allowed or an appeal is allowed but no appeal has been filed.

A person aggrieved means a person who has suffered legal grievance or a person against whom
a decision has been pronounced and it has wrongfully deprived him of something. There may
be situations where a person who is not a party to suit is aggrieved by an order.

In the case of Adonia v Motokoya [1970] EA 429, court held that the right to apply for a review
is not restricted to parties but to any person who considers himself aggrieved.

Nature and scope of powers of review

The power of review should not be confused with appellate power. The power of the review is
not an appeal in disguise. It is a well settled principle of law that once judgement has been
pronounced by a competent court it must be accepted and implemented until varied by a
higher court.

Review must not be used by the losing party to fill up the weak parts of their case or give them
an opportunity at second hearing. The object and scope of review is not to enable the court to
write a second judgement but to allow that court to correct certain errors as provided by
section 82 of civil procedure Act.

Ground upon which one may apply for review.

In Nakivubo Chemists (U) Ltd [1971] HCB 12, it was held, inter alia, that the three cases in
which a review of a judgment or order is allowed are those of:
 a) discovery of a new and important matter of evidence previously overlooked by
excusable misfortune;

b) some mistake or error apparent on the face of the record; and

c) For any other sufficient reason, but the expression sufficient should be received as
meaning sufficiency of a kind analogous to (a) and (b) above.

Discovery of New and Important Matter or evidence Order. XLIV R. 1.

Review is permitted on ground that there has been discovery by applicant of new and
important matter or evidence which after exercise of due diligence was not within knowledge
of applicant or could not be produced at time when decision was passed. The key words here
are that there is discovery; it is new; important; not available with due diligence; not capable of
being produced prior to decree being passed.

For example affidavits should state new grounds; application for review; facts supporting
application of review; discovery of new facts.

Important means it has to be:

1. Relevant; and
2. capable of altering decision of the court.

Mohammed v Mohamed Zechariah.

There was a discovery of a document containing an admission of liability by defendant. The

discovery of the document in which defendant admitted liability was held as new and
important evidence.

Josephine v James Sidney

Decree for restitution of conjugal rights. It was subseqiuently discovered that parties were
cousins and marriage was null and void.

Khan v Ibrahim

The court had issued commission of examination of a witness in Pakistan. I was later brought to
the notice of the court that there was a reciprocal arrangement in respect of 2 countries.
Thereby the court was asked to review its decision.

Rao v Rao

The suit had been dismissed on 2 grounds:

 1. for want of statutory notice as required by law;
2. 2. on ground that plaintiff was illegitimate.

Subsequent application for reviews made against dismissal on ground that there was new
evidence to show that plaintiff was legitimate. Application for review disallowed because new
information was incapable of altering the decision of the court since the new evidence could no
counter there round of want of statutory notice.

Error Apparent on the Face of Record

Another ground for review is mistake or error apparent on the face if the record. It has not
been defined in the Act. It is an error that is on the record and one does not have to establish it
(no need to call evidence in order to establish it). An error can be an error of fact or an error of
law or of both.

Any other sufficient reason

This is not defined but on can see that it attempts to give court some wide discretion. In some
cases there may be an issue that calls for review but does not fall in the above 2 categories i.e..
it is analogous.

e.g. if there is a statement that is incorrect, one may have to call evidence. It is not an error
apparent on the face of the record. Tha this issue that is related to the above 2 grounds but
does not fall under them. One is usually at discretion of court.

Official Receiver and Liquidator v Freight Forwarders

Wangeci Kinuthia v Walibivu

How are applications for review made?

There is no inherent power of review. The power of review is conferred by law either
specifically or by necessary implication.

Applications for review is made to the same judge who passed the decree or order when judge
is not available it can be to successor of that officer or another judge but it must be a judge at
the same level.

Format of Application

Accoerding to order 46 rule 8, an application for review must be made by motion on notice.

Procedure at Hearing
Application from review may be divided into three stages:
 1. Stage 1: here application for review commences ordinarily with an ex parete application
by aggrieved party. At this stage, court may reject application if there is no sufficient
ground. If court believes there is ground it will issue a notice calling opposite party to
show cause why review should not be granted.
2. Stage 2: Application for review is heard by the same judge interpartes (both parties
present) At this stage court may discharge case(application is rejected) if there is no
ground for review but if on the other hand there is basis for review, rule will be made
absolute. In other words application is allowed. In that case court will be allowing
appeal to be heard.
3. Stage 3: Re-hearing itself. The court can fix hearing date or it can rehear it at once. At
rehearing arguments will be presented to court in relation to the facts and law
supporting review e.g. if new document found it will be tendered in court properly
through a witness or an affidavit. In case of an affidavit witness may be called to give
evidence. Once part of evidence is heard, court will make a pronouncement. Court can
make decision then or postpone date of pronouncement. In making decision court can
confirm original decree or vary it.

Revision is where the high court calls for the records of any case which has been determined by
any magistrate court if such court appears to have, exercised a jurisdiction not vested in it by
law, failed to exercise a jurisdiction so vested in it, acted in the exercise of its jurisdiction
illegally or with material irregularity or injustice as per Section 83 civil procedure Act
Revision is based on the issue of jurisdiction-the section relates to jurisdiction and the high
court will not interfere because a lower court allowed an application which was barred by
limitation- matemba v yamulinga [1963] EA 643

RES JUDICATA

The court of appeal in SEMAKULA VS. MAGALA & OTHERS [1979] HCB 90 has held that in
determining whether a suit is barred by res judicata, the test is whether the plaintiff in the
second suit is trying to bring before the court in another way in the form of a new cause of
action a transaction which has already been presented before a court of competent jurisdiction
in earlier proceedings and which has been adjudicated upon. If this is answered affirmatively,
the plea of res judicata will then not only apply to all issues upon which the first court was
called upon to adjudicate but also to the very issue which properly belonged to the subject of
litigation and which might have been raised at the time, through the exercise of due diligence
by the parties. The legal position is further affirmed by Kamunye and Others vs. The Pioneer
General Assurance Society Ltd, [1971] E.A. 263, where the Court of Appeal LAW, Ag. V.-P. with
the concurrence of Spry Ag. P. and Mustafa J.A. at page 265 paragraph F G give the test of
whether a matter is res judicata as follows:

The test whether or not a suit is barred by res judicata seems to me to be is the plaintiff in the
second suit trying to bring before the court, in another way and in the form of a new cause of
action, a transaction which he has already put before a court of competent jurisdiction in earlier
proceedings and which has been adjudicated upon. If so, the plea of res judicata applies not only
to points upon which the first court was actually required to adjudicate but to every point which
properly belonged to the subject of litigation and which the parties, exercising reasonable
diligence, might have brought forward at the time Greenhalgh v. Mallard, [1947] 2 ALL E.R.
255. The subject matter in the subsequent suit must be covered by the previous suit, for res
judicata to apply Jadva Karsan v. Harnam Singh Bhogul (1953), 20 E.A.C.A. 74

ADMISSIONS UNDER ORDER XIII of the CPR

A party may formally admit facts either on their own motion or in response to a
request from an opponent. Under o.13 r.1 any party may give notice by his pleading
or in writing that he admits the truth of the whole or any part of the other partys
case. in Juliet kalema v William .kalema and anor (civil app no.95 of 2003). it was
held that. Such admissions can be made on the pleadings or verbally because of the
use of the word "otherwise" in the rule and that the rule is for the benefit of both
parties. Admission may be of facts or of documents.

Order 13 rule 2 provides for notice to admit documents and the procedure for it is
given in rule 3; it is by issuing a notice to the party as is prescribed in Form 9 of
Appendix B of the Rules. Notice to admit facts is provided for in Order 13 rule 4
and the procedure is given in rule 5. A notice to admit facts should be in the
format prescribed in Form 10 of Appendix B while an admission of facts should be
in the format prescribed in Form 11 of Appendix B of the Rules

The consequence of an admission is that judgment can be obtained on admitted

facts without the court having to go through proof of all the facts before the
court. The party who obtains an admission is entitled to apply for summary
judgment on admitted facts. In Juliet kalema v William .kalema and anor (civil
app no.95 of 2003). it was held that the import of o.13 r.6 is is to enable a party
to obtain judgement speedily at least to the extent of the admissions

Rule 6 of Order 13 CPR provides that

Any party may at any stage of a suit, where an admission of facts has been
made, either on the pleadings or otherwise, apply to the court for such judgment
or order as upon the admission he or she may be entitled to, without waiting for
the determination of any other question between the parties; and the court may
upon the application make such order, or give such judgment, as the court may
think just.
 Order 13 rule 6 CPR, it simply states that an application for judgment on
admissions may be made at any stage of the suit. There is no provision for the
form that the application should take for it seems it may be sparked off by any
statement, whether it be in writing or by word of mouth. While Order 52 CPR
provides that all applications to court shall be by notice of motion, it is not unusual
for oral applications to be made in the course of proceedings.applications under
this order is one of such circumstances.

In the case of Huawei Technologies (U) Co.Ltd Vs. Evepeak Consults &
Technical Services Ltd. (Misc. Appl. No 189 Of 2011) the defendant plaintiff
had been contracted by the defendant to undertake technical engineering works
but the defendant had varied the scope of work in such a way that the cost of
execution of the extra work required renegotiations which the defendant was
unwilling to concede and infact denied.the defendat had later by affidavit
admitted the cost of variations.the plaintiff sought court orders for judgment on
admission as to the value of the variations.it was held that those facts being
admitted the plaintiff was entitled to the value of admitted amount.

in the case of NASRA ALI WARSAME .v OSEGE RAJAB [2013] UGHCCD 111 .it
was held that The proper procedure is that a party intending to apply for
Judgment on admission of facts must notify the other party that he intends to do
so by notice under O.13 r. 4. The rules do not envisage a situation where the
admission is inferred from the pleadings, unless they specifically do so .in that
case it being found that the plaintiff counsel did not move under O.14 r. 4 court
ruled that he therefore could not get judgment under O.14 r. 6 as prayed

Before judgement on admission is granted, the applicant must satisfy court by

evidence that the admission is clear, unambiguous and unequivocal. In Choitram v.
Nazari [1984] KLR 327 where it was held:
Admissions have to be plain and obvious, as plain as a pikestaff and clearly
readable because they must result in judgment being entered. They must be
obvious on the face of them without requiring a magnifying glass to ascertain their
meaning. Much depends on the language used. The admission must have no room for
doubt
The Court of Appeal of Uganda had occasion to discuss the provision above
in Kibalama v. Alfasan Belgie CVBA [2004] 2 EA 146. The Justices of the Court
were unanimously of the opinion that under Order 11 rule 6, which is now Order 13
rule 6, judgment can be entered at any stage of the suit where an admission of
facts has been made. That such an admission however, must be unequivocal in order
to entitle the party to judgment without waiting for the determination of any
other question between the parties if an admission is made of a fact upon which
the dispute turns, then judgment should be entered forthwith, without waiting for
the determination of any other issues between the parties.

In Juliet kalema v William .kalema and anor (civil app no.95 of 2003) the
court held that In a case involving complicated questions, which cannot be
disposed of conveniently, the court should decline to exercise its discretion against
the party who is seeking judgement on admissions. The power given to court to
enter judgement on admissions is a discretionary one that must be exercised
judiciously and circumspectly.

the facts of that case were that the alleged admissions made by the appellant that
were used by the respondents to apply for judgement under the rule I cited, were
that the certificate of title, the architectural plans, the occupation permit of the
suit property were in the names of the second respondent. The other admissions
were that the late Martin Kalema was not the registered proprietor or the legal
owner of the property;

It was held that since the facts showed that the alleged admissions by the
appellant were not as clear cut and unambiguous to entitle the respondents to
judgment. She did not admit that she was intermeddling in the affairs of the
estate. She did not admit that she had committed fraud or that she was
trespassing on the suit property. She did not admit that her occupation of the
house is wasteful of the estate, unjustified, unlawful and unreasonable. The
learned judge, with respect failed, to exercise her discretionary powers judiciously
in this matter when she entered judgement in favour of the respondents.
Accordingly ground six would succeed.

The application for judgment on admission has to be supported b affidavits showing

the grounds of admission and deponing to the facts that the admissions are not
ambiguous.
The consequence is that if the notice is sent to you and you dont admit, then you
will be bound by that refusal to admit and it will be used against you when
allocating costs.

1. SUMMARY PROCEDURE
This is governed by rules provided under o.36
In the case of symon and co ltd v padmars stores [1903] 1 kb 259,it was held that
trial as a rule must precede judgment but under summary procedure, instead of the
trial first ,and then judgment, there is judgment at once and never trial.

This refers to judgement given without a trial. A quick and summary judgment .in
such cases there is judgement given at once and never a trial. It is intended to
allow a plaintiff with a liquidated claim to which there is clearly no good defence to
obtain a quick and summary judgment without being necessarily kept from what is
due to him by delaying tactics of the defendant. It is also intended to guard
against wasting courts time and that of the litigant on claims that are clear.

In The Annual Practice (1966, Sweet & Maxwell, London) it was stated that a
liquidated demand is in the nature of a debt, a specific sum of money due and
payable under or by virtue of a contract which is either already ascertained or
capable of being ascertained as a mere matter of arithmetic. In The Supreme
Court Practice (Ed. Jack I. H. Jacobs, 1966, Sweet & Maxwell, London) a
liquidated demand is said to be in the nature of a debt, and that if ascertainment
of a sum of money even though it be specified or named as a definite figure,
requires investigation beyond mere calculations, then the sum is not a debt or
liquidated demand but constitutes damages.

in Zola & Another v. Ralli Brothers Ltd. & Another [1969] EA 691 at 694, a
decision about the Kenya equivalent of our then Order 33 CPR as follows:-

Order 35 is intended to enable a plaintiff with a liquidated claim, to which there is

clearly no good defence, to obtain a quick and summary judgment without being
unnecessarily kept from what is due to him by the delaying tactics of the
defendant. If the judge to whom the application is made considers that there is any
reasonable ground of defence to the claim the plaintiff is not entitled to summary
judgment. Normally a defendant who wishes to resist the entry of summary
judgment should place evidence by way of affidavit before the judge showing some
reasonable ground of defence.

SCOPE OF THE SUMMARY SUIT

Under order 36 r.1 such procedure is only relates to proceeding in the high court
or magistrate courts. It extends not only to part of a claim or whole claim but also
to the defendants counter claim. Under order 36 r.2 summary procedure also
extends to actions for the recovery of land,rent,mesne profits.

This is as opposed to the right of court to pass judgment upon liquidated demand
provided under 0.9 r.6 which entitles court to pass judgement for any sum not
exceeding the sum claimed,in the plaint where the defendant fails to file a
defence. This is not necessary a summary suit as it is not initiated by way of a
specially endorsed plaint. In that case the judgement may be summary judgement
but the suit is not a summary suit.

Summary procedure is not applicable to claims made by a plaintiff (including a

defendant who counter claims for libel, slander, malicious prosecution, seduction,
breach of promise of marriage, allegation of fraud, probate actions and actions
against government. In most of such actions the claims are not based on liquidated
sum.

In UTC v PASTURE no.2 [1954] 21 EACA 163 which was a claim for salary and
allowances due to the plaintiff for wrongful dismisaal,briggs ja held that there was
no discretion to allow a claim to be brought under summary procedure if it is not
precisely within the terms of o.33 r. 2(now order 36) .that save for a claim for
salary and allowances due under a contract,this is a claim for damages for wrongful
dismisaal .the contract does not contain any provisions for liquidated damages on
breach and it is perfectly clear that such a claim ,although amount specified ,is
for unliquidated damages.

Sadoline paints v wali Mohamed [1972] EA 395

It is confined to actions initiated by specially endorsed plaint.

A specially endorsed plaint is clearly entitled as a specially endorsed plaint and
must contain the words specially endorsed plaint.
The plaint must indicate that it is brought for the recovery of the liquidated claim
which the amount of which has to be stated clearly in the plaint.
The plaint must show how the course of action arose
it must then proceed to show that the plaintiffs conduct constitutes a deliberate
refusal to settle the debt owing; that the claim is for a liquidated nature which
ought to be recovered in a summary manner; and that the defendant has no
defence at all to the claim in the pleading; and has to show that the notice of
intention to sue was served on the defendant and that court has jurisdiction over
the matter. The plaint must then pray for order directing the defendant to pay
the amount stated and then prayer for costs.

Where the plaint is defective, court held in the case of Sheba gold mining
company limited v Transhawe [1892] 1 QB 674 that such a plaint cannot be
cured by a simple averment in the plaintiffs affidavit rather the plaintiff is
entitled to amend the plaint without leave if the pleadings are not deemed close
and with leave of court at the close of the pleadings. In British East Africa Corp
(1938-1938)1 KALR 18 court held that where the affidavit is defective, it may be
cured by a supplementary affidavit in replacement but such can only be by leave of
court-sulaiman v south british insurance company limited [1965] EA 66.

The plaint must be supported by affidavit, which must verity the facts upon which
the claim is based, and state that in the deponents belief, there is no defence to
the claim or to the part of the claim in respect of which the application is made.
The affidavit must be made either by the plaintiff himself or someone whom he
authorized to make.

Summons must be attached to the plaint plus any attached exhibits. The summon is
to alert the defendant to apply for leave to appear and defend his suit within ten
days from the notice.
A specially endorsed plaint and summons must been served on the defendant.
Failure to effectively serve summon on the defendant can entitle the court even
after it has given any decrees in respect of the application ,to set aside the decree
or even the stay execution and court may in its own give leave to the defendant to
defend his suit.-o.36 r.11.
CONDITIONS TO BE SATISFIED FOR THE PROCEDURE TO APPLY

The defendant on his part can apply for leave to appear and defend on the grounds
that there is a bonafide and triable ussues of fact and law and that ;
There is a preliminary technical issue
By showing that there is a clear defence
By showing that there is a serious question of fact to be tried. In souza figuerdo v
moorings hotel [1959] ea 425 ,the respondent sued for arrears of rent,interest
and costs arising our of the appelalants termination of a sub lease agreement.the
appellants did not file a defence but an affidavit in which he denied indebtedness
and set up 4 defnences.k oconnor p held that there were clearly triable issues
raised by the affidavit .court was not prepared to say that all the defences set up
were sham defences.the appellant should have been allowed unconditional leave to
defend .

Order 36 rule 7 provides:

If it appears to the court that any defendant has a good defence to or ought
to be permitted to appear and defend the suit, and that any other defendant
has not such defence and ought not to be permitted to defend, the former may be
permitted to appear and defend, and the plaintiff shall be entitled to issue a
decree against the latter,

Court in kundanlal restaurant v devshi [1952] 19 eaca 77 held that where the
defendant can show by affidavit that there is a bonafide triable issue, he is to be
allowed to defend as to tha tissue without condition. a condition of payment into
court ought not to be imposed where a reasonable ground of reference is set up
except in cases where the defendant consents or there is good ground to believe
that the defence set up Is a sham.
That there is a an arguable point of law
In certain cases by raising prima facie set off or counter claim
By showing the court that for some other reasons there ought to be a trial.

Court may, if satisfied grant either conditional or unconditional leave- o.36 r.8
; Under o.36 r.3 where the defendant does not apply for such leave from court, he
or she is not permitted to appear and defend his suit.
In such cases where the defendant fails to make such application, after the
expiration of the period specified in the summons o.36 r.3 (2) provides that the
defendant shall be entitled to a decree for the amount specified in the plaint
together with any interests if any or for the recovery of land and any costs against
the defendant.

The application must be accompanied by an affidavit properly served together with

the affidavit on the plaintiff-o.36 r.4

Conditional leave.
This is granted where the court considers the defence shadowy or to have little or
no substance in it and would like to give the defendant the benefit of doubt. In
that case court may require the defendant to give security for costs or order him
to make payments in court. rumacles v mesquite [1896] 1 KB 416

Unconditional leave to amend.

This is granted where the defendant shows existence of strong triable issues or
issues of law which are arguable.parker j in home and overseas company ltd,v
mentor insurance company (UK) LTD [1989] 3 ALLER 74 laid down the following
criteria to be followed to determine wether to grant conditional or unconditional
leave or to refuse leave altogether;
If the defendant only suggested defence is a point of law and the court can see at
once that the point is misconcieived,the plaintiff is entitled to judegment.
If at first site the point appears to be arguable ,but with relatively short
argument can be shown to be plainly unsustainable ,the plaintiff is entitled to
judgeemnt.
If the point of law relied on by the defendant raises serious question to be tried
which calls for detailed argument and mature consideration, the point is not
suitable to be dealt with in summary proceedings.

CIVIL PROCEDURE

brief facts

LAW APPLICABLE

THE JUDICATURE ACT CAP 13

THE CIVIL PROCEDURE ACT CAP 71
THE CIVIL PROCEDURE RULES SI 71-1
THE JUDICATURE (COURT FEES, FINES AND DEPOSIT) RULES SI 13-3

It first worth noting that temporary injunction is under o.41

PROCEUDURE

file a miscellaneous application exparte under the provisions of s.33 and 38 of the civil
procedure Act cap 13,the copyright and neighbouring rights Act o f 2006,section 45,and 98 of
the civil procedure Act Cap 71 order 52 1,2 and 3 of the civil procedure rules. Seeking orders
that the respondent does permit the applicant to enter upon its business premises ,stores,
warehouses or such other parts thereof as may be deemed necessary for purposes of
;inspecting all goods and items to wit. Removing into custody.removing into custody of the
honourable court all unauthorised products ,documents, materials or articles relating to the
unauthorised reproduction ,reproduction ,distribution and sale of the applicants copyrighted
music. and pray for costs of the application.

Course of action

To sue for copyright infringement it is necessary to establish a course of that it vested in the
intending applicant. A course of action was defined in the case of auto garage v motokov[1971] EA
314 where it was held that the essentials to support a cause of action are that; the plaintiff enjoyed a
right; that the right has been violated and that the defendant is liable. In this case,mr enjoyed
copyright in his music. This right is conferred by s.4 of the copyright and neighboring rights act 2006
which provides that the author or the work prescribed under s.5 shall have shall have a right of
protection of the work where the work is original and is reduced in material form in whatever
method irrespective of the quality of the work or the purpose for which it was created and under s.
4(2),this protection shall not be subject to any formality. such works include among others;
dramatic, dramatic-musical and musical work, audio visual works and sound recordings, including
cinematographic works and works of similar nature(article 5(b) and (c) of the copyrights and
neighboring rights act)

By all definitions therefore the impugned works in the instant case being music composed by
enjoyed protection under the provisions above and the rights to such protection vest in being the
composer of the music.

an infringement of a copyright is defined in s.46 of the copyright and neighboring rights act 2006 as
any unauthorized dealing with any work or performance without a valid transfer,licence or
assignment or contrary to permitted free use through the acts of publishing, distributing or
reproducing the work, performing the work in public, broadcasting the work, communicating to the
public or importing any work and using it in a manner which where it work made in Uganda would
constitute an infringement of copyright. The facts of this case clearly indicates that without any
colour of right, arising from a licence,authorization or transfer has been involved in performing the
said works .. Which acts do constitute an infringement .this therefore satisfies both the requirement
that the right was infringed and the defendant is liable.
Procedures documents and forum

The procedure for enforcement of this right is therefore by way of a multi layered approach namely;
Filing a plaint. in the high court since it has original jurisdiction to entertain the matter as provided
for under article 139 of the 1995 constitution .Under o.4 r.1 every suit shall be instituted by
presenting a suit to court or to such officer as it appoints for this purpose such officer being a
registrar by virtue of o.50 r.1 of the rules. This suit shall state the course of action being an
infringement of copyright by the plaint shall pray for various orders including damages for
infringement, a permanent injunction restraining from ever infringing copyright, orders of
seizure (anton pillar).court fees has to be paid pursuant to provision of R.2 of the judicature court
(court fees, fines and deposits ) Rules SI 13-3 of the laws of Uganda as failure to pay means no
suit has been instituted as held in the case of UNTA Exports Ltd v Customs [1970] EA 648.

This initial suit is absolutely necessary to establish the cause of action because any other subsequent
applications like interlocutory injunction cannot stand without a pre existing suit. This principle was
emphatically stated by lord diplock in the case of the Siskina [1979] AC 210 at 256 when he stated
that the right to obtain an interlocutory injunction cannot stand on its own. It is dependent upon
there being a preexisting cause of action against the defendant arising out of an invasion, actual or
threatened by him, of legal or equitable right of the plaintiff for the enforcement of which the
defendant is amenable to the jurisdiction of the court. The right to obtain an interlocutory injunction
is merely ancillary and incidental to the pre-existing cause of action.

Once this is filed, there is need to stop the defendants from continuing with further infringement of
the copyright during the pendency of the suit. The law for this is found in s.45 (1) of the copyright
and neighboring rights Act 2006, provides that (1) Any person whose rights under this Act are in
imminent danger of being infringed or are being infringed may institute civil proceedings in the
Commercial Court for an injunction to prevent the infringement or to prohibit the continuation of the
infringement. This is an interim injunction which can be prayed for under s.38 (1) of the judicature
Act(powers of the high court to grant injuction) the rules and procedures of which are provided for
under o.41 r.2 (1) by way of chamber summons as required under o.41 r.9 which summons must be
accompanied by valid affidavit which must comply with the provision of s.5 and 6 of the oaths Act
cap 19 ,stating the grounds of the application. Under o.41 r.3 the notice of such application must be
served on the opposite party and proof of service must be shown by way of affidavit of service as
required under o.5 r.16. The high court has inherent powers to grant such remedy by virtue of s.98 of
the judicature act cap 13.

since infringing material is in the possession of the defendants such as ,music copying machines and
given that there is a possibility that such material may be destroyed or destroyed before the disposal
of the suit interpartes,it is necessary for the plaintiff to proceed with an application exparte for anton
pillar orders as permitted by s.45 (2) of the copyright and neighboring rights act 2006 and pray
court for such order. This exparte order is discretionary as the wording of the section shows where it
provides that Upon an ex-parte application by a right owner, the court may in chambers make an
order for the inspection of or removal from the infringing persons premises, of the copyright
infringing materials which constitute evidence of infringement by that person. Because it is
discretionary ,the plaintiff must pray court to invoke its inherent powers granted under 22 and 98 of
the civil procedure Act cap 71 and s.33 and 38 of the judicature Act cap 13.
The exercise of courts inherent jurisdiction of courts as reflected under s. 98 of the civil procedure
act is to attain the ends of justice and to prevent the abuse of process of courts. Anton pillar orders
can be given pursuant to inherent power of courts because it too serves the purpose of attaining the
ends of justice. As lord Denning stated in the case of anton pillar KG v manufacturing processes ltd
and others [1976] 1 ALLER 779 that such an order should only be made where it is essential
that the plaintiff should have inspection so that justice can be done between parties, and when ,if
the defendant is forewarned ,there is a grave danger that vital evidence will be destroyed ,that
papers will be burnt or lost or hidden o taken beyond the jurisdiction ,and so the ends of justice be
defeated and when the inspection would do no real harm to the defendants case.

The application is therefore exparte in chambers to avoid the defendant being forewarned if notice of
such applications is served to him or her.

Being an exercise in inherent jurisdiction courts have set down conditions to be established before
anton pillars orders are granted. The three essential pe-conditions for the grant of an anton pillar
orders as stated by ormrod LJ in Anton Pillar KG v Manufacturing Processes Ltd and others are that;
there must be an extremely strong prima facie case; the damage ,potential or actual must be very
serious to the plaintiff and there must be clear evidence that the defendant has in its possession
incriminating documents or things and that there is a real possibility that it may destroy such material
before any application inter-parties can be made.

Whether the plaintiffs satisfies the criteria for the grant of an Anton pillar order.

Prima facie case.mulla on the code of civil procedure, 16th edition LexisNexis Butterworths at
p.3713 states that prima facie case implies the probability of the plaintiff obtaining a relief on the
material placed before the court.-evidence that one has a copyright and that the right has been
infringed by the respondent suffices as strong case evidence satisfying this conditions.

Damage potential or actual very serious for the plaintiff. In the case of Uganda performing rights
society ltd v fred mukubira misc. application no. 818 of 2003 (arising from HCCS No. 842 of
2003) it was held that loss of revenue due to the applicant as a result of the defendants acts can
cause serious damage to the applicant.

Third condition. Proof that if the court does not intervene, there is a high likelihood that the
respondent may dispose of the unauthorized goods being passed off as those of the applicant thereby
defeating and or perverting the course of justice and rendering any decree or order that may be
passed n the main suit nugatory.

The grant of anton pillar orders is not a search warrant as observed by lord denning in the Anton
pillar case above. It does not authorize the plaintiff and its advocate or anyone else to enter the
defendants premises against its will. It neither authorizes the breaking down of any doors, nor the
slipping in by a back door, nor getting in by an open door or window. It only authorizes entry and
inspection by the permission of the defendant. The plaintiff must therefore get the permission of the
defendant and if permission is refused the only remedy would be an action for contempt of court.
Order 41 r.2(3) provides that in case of disobedience, the court granting an injunction may order the
property of the property of the person guilty of disobedience or breach to be attached and may also
order that the person be detained in civil prison for a period not exceeding six months.
ON INJUNCTIONS
The granting of temporary injunction is not automatic but an exercise in judicial discretion and
the purpose of granting the same is to preserve matters in status quo until the questions to be
investigated are finally disposed of
THE RULE IN THE LAW
injunction is governed under ORDER 41 r.1 of the CPR S.1.71-1 which gives court discretionary
powers to grant a temporary injunction to restrain such act, or make such orders for the
purpose of staying and preventing the wasting, alienation, sale or removal or disposition of
property as the court thinks fit until the disposal of the suit or until further orders.
OTHER AUTHORITATIVE TEXTS
Philip Petit in his book titled Equity and law of trusts,4th edition at page 407 states that
interlocutory injunction is ,however never granted as a matter of course; it is always a matter
of discretion.whether an interlocutory injunction should be granted depends upon a variety of
circumstances, and it is utterly impossible to lay down any general rule about the subject by
which the discretion of court ought in all cases to be regulated, but in appropriate
circumstances it is a matter of right that upon certain proper terms the property shall be
maintained in status quo pending trial
John McGhee in Snells Equity 13th edition at page 721 partly quoting the statement by Lord
Blackburn in the case of Doherty v Allman (1873) 3 Appeal cases 709 at 728,729 stated that
normally the jurisdiction of the court to grant an injunction is discretionary,yet the discretion
is not one to be exercised according to the fancy of whoever is to exercise the jurisdiction of
equity, it must be exercised judicially according to the rules which have been established by
precedent.
In the case of hubbard vs vosper the court stated that any attempt to fetter courts discretion
by laying down rules that would have the effect of curtailing the flexibility inherent in the
objective of interlocutory injunctions should not be tolerated.
PROCEDURE
Under O.41 R.2 (1) the plaintiff may apply for temporary injunction at any time after the
commencement of the suit and either before or after judgment to restrain the defendant from
committing the breach of contract or injury complained of or injury relating to property or a
right
Under O.41 R.9 application shall be by summons in chambers supported by affidavit supported
by evidence
PRINCIPLES LAY DOWN BY PRECEDENT.
The principles upon which courts rely in considering applications for temporary injunctions are
stated in many cases including;Giella v cassman brown(1973) EA 358(CA) which was applied in
the case of UNSA V NKUMBA UNIVERSITY where it was held that an applicant who seeks a
temporary injunction must show: first a prima facie case with a probability of success; secondly
that the non grant of temporary injunction would expose such an applicant to irreparable injury
that would not be justly compensated by an award of damages and thirdly that where a court is
in doubt, it would decide the case on a balance of convenience.
For suit brought to obtain temporary injunction the following has to be proved
1. prima facie case
In Hubbard vs Vosper (1972) 2 QB 84,the court of appeal of England maintained that
when considering the application for interlocutory injunction, a court had to be satisfied
that a prima facie case had been established.

in Mohamed Yahu vs Abdur khamis HCCS No.217/94 cited with approval in UNSA V
NNKUMBA UNIVERITY misc applno.35 of 2015 ouma j held that there is no rule that an
applicant for a temporary injunction must first establish that he has prospects for
succeeding because this would lead a trial of the suit without evidence to establish it. It
is enough to show that there are triable issues to be investigated on either side and that
the suit was not frivolous

Thus in a pending suit with probability of success .this has to be proved by showing:
i. the existence of triable issues in the pending suit.e.g that there are
rights violated
In the halsbury laws of England 4th edition vol 24 para 858 it is stated
on an application for an interlocutory injunction the court must be
satisfied that there are serious questions to be tried.
ii. that there are no fatal flows in the pending suit likely to render such suit
a nullity e.g. that there is no cause of action in the main suit; that the
plaintiff has no locus to sue in the main suit; that the main application is
incompetent as it is brought in the name of non existing persons
2. Status quo to be preserved. Prove that the status quo has not yet been lost or that the
application is not brought too late that there is now no more status to protect.
in Re Newton,146 S.W 3d 648 (tex.2004) the term status quo was defined as the last
,actual peaceable and non contested status that preceded the pending controversy.
in the case of clovergem fish& foods ltd vs international finance corp.&7 others [2002-
2004 UCLR 132 at page 137 Arach amoko j (as she then was) stated that indeed the
court needs to know the status quo intended to be preserved by the application before
applying the three conditions laid downif the status quo has changed before the
application ,then the application would be rendered useless since there will be no
status quo to preserve.

3. Irreparable damage. Show that if the injunction is not granted the applicant will suffer
irreparable damage that cannot be atoned for in monetary terms.
yorokamy bamwine j held in katusiime elias vs arncy holdings limited that the law
requires that irreparable injury ,must be substantial or a material one that cannot be
adequately compensated for in damages.other cases naparo industries ltd vs fire star
industriesltd and another high court misc.app non.077 of 2001.
 - the constitutional court in davis Wesley v attorney general constitutitional petition
no.06 if 2013 held that if there is an infringement of the right to fair hearing as the
subject of the main cause, the court before which an application for a temporary
injunction is sought, should be inclined to grant the same because such an
infringement is most likely to lead to irreparable damage that cannot be atoned for
in monetary terms.
- in annanias tumukunde v attorney general constitutional petition application no.3
of 2009 at page 8 the court held that threats to human rights generally should be
jealously safeguarded by the issue of interlocutory injunctions because they are
special. They contribute immensely to constutional order in the country.
4. balance of convenience
The term balance of convenience literally means that if the risk of doing injustice is
going to make the applicants suffer then probably the balance of convenience is
favorable to him/her. It also point to weighing whether the injunction would or would
not in fact impose a significant burden on a party as compared to the other. The
balance of harms as it is termed in the American civil procedure laws refers to the
threatened injury to the party seeking the preliminary injunction as compared to the
harm that the other party may suffer from the injunction.
In arriving at the balance of convenience, the court has to weigh the mischief likely to be
caused to the applicant, if the injunction is refused. At the same time, the court also has
to compare the prejudice likely to be caused to the other side should the injunction be
granted. A lawful exercise of right cannot be described as an injury as long as the party
is acting in the exercise of a right which the law recognizes. Similarly it cannot be said
that the party is committing any wrong leading to any injury. The party that would be
more burdened is most likely to be granted a temporary injunction.
Furthermore, in order for the court to consider where the balance of convenience lies, it
will consider the circumstances of the case .in the case of L.D cotton international vs
African farmers trade association BV & anor,HCMA No.198 of 1998,it was held that
before an injunction is granted ,court should be convinced that the comparative
inconvenience which is likely to issue from withholding the injunction would be greater
than that which was likely to arise from granting it.