TRIAL & PRE-TRIAL PROCEDURES: 2020

Mediation, Summons on Directions and scheduling conference. Order 11A

and Order 12 of the CPR.

Mediation

Under the current rules applicable in the Commercial Court and other
Divisions of the High Court, since 2007 for the commercial court and since
2013 for other Divisions of the High court, all suits filed must be subjected to
mandatory mediation, conducted by a judicial officer or any other Court
accredited Mediator, usually practicing Advocates who volunteer to serve.
The mediation must be concluded within 60 days of commencement, but the
time can be extended for good reason.

If mediation does not result into a settlement, the suit must be set down for
hearing. Hearing of a suit means the recording of evidence either orally or by
way of witness statements. There are no timelines within which mediation
must be commenced after filing the suit. A new amendment to the CPR
means that there will be parallel processes of mediation and Directions taking
place at the same time before the suit is sent for scheduling and eventually
hearing by a Judge or magistrate.

Summons on Directions-Order 11A

In order to ensure expeditious disposal of cases, the CPR was amended in

2019 (The Civil Procedure Amendment) Rules SI 33 of 2019 to provide for
summons for Directions which in a way will avail an opportunity to in an
omnibus way address or resolve all matters preliminary to a trial including all
interlocutory applications and to enable the court give directions to ensure an
expeditious and economical disposal of suits. Accordingly, in every action
commenced by a plaint, the Plaintiff is required, under rule 2 to take out
summons for direction within 28 days from the date of the last pleading filed
in accordance with order 8 rule 18. Default in taking out summons for
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directions abates the suit but the plaintiff may subject to the law of limitation
file a fresh suit. The scope of the summons for directions is better appreciated
by looking at Form 14 A. Among the matters that can be handled through this
procedure include questions such as whether a particular suit should be
consolidated with the suit under which the summons are taken out, whether
amendment of pleadings is required, security for costs, whether the matter be
referred to an official referee etc. The summons is heard by the Registrar
pursuant to Order 50 rule 3 as amended. Following the disposal of the
summons for direction and after compliance with any orders made thereon,
the suit shall proceed for conference scheduling.

The first recorded case on the scope of Order 11A is that of Carlton Douglas
Kasirye vs. Sheena Ahumuza, Civil Application 150 of 2020, Bonifance
Wamala J of the Commercial court held generally and made wide ranging
observations on the application of Order 11A as follows-

(a) Summons for directions must always be taken out by the plaintiff within
28 days of the last pleading otherwise the suit abates.

(b) the mediation envisaged under the amendment is mediation conducted

on reference by a judge at the hearing of the summons or scheduling.

(c) Order 11A Rule 1 (4) (e) creates an exception to the requirement under
sub-rule (6) to the effect that the rule applies to all actions instituted by
way of a plaint except an action in which a matter has been referred for
trial to an official referee or arbitrator

(d) a court accredited mediator is an official referee because in his or her

role, he or she performs the function of an official referee of the Court,

(e) (e) where a matter is referred by the Court to mediation, the plaintiff
would not be expected to take out summons for directions within 28
days provided for under sub-rule (2) of Rule 1.

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(f) mediation is no longer mandatory and the requirement for mandatory
mediation ceased to apply.

(g) reference to mediation is an option that can be explored either during

hearing the summons for directions or when the case is placed before a
Judicial Officer for scheduling or hearing.
 
Scheduling conference

Earlier in 1998, the CPR was amended to introduce “a scheduling

Conference” under O 12 rule 1. The Scheduling Conference must be
conducted within twenty-eight days after the last reply or rejoinder made
under rule 18(5) of Order 8. This has generally not happened given the large
backlog of cases in the Court and of course now appears impossible given
that the summons for Direction must precede the scheduling yet both
processes must by the rules take place within the same time frame. Order 12
rule 1 must now be taken to have been amended by implication by Order 11A
rule 8 which requires the suit to be set down for scheduling seven days after
compliance with summons for direction (which is a period of forty-five days).
The Scheduling Conference is conducted before the trial Judge and the
purpose is to sort out points of agreement and disagreement such as agreed
facts, agreed documents and during this conference, the issues for
determination are also stated or framed. Again, to save time, a form was
developed that is now notoriously used by Advocates. The form is prepared
and exchanged among Advocates. The contents of the form have been
substantially adopted in the Rules under schedule 2 made pursuant to rule
7(2) of Order 11 A of the CPR as amended. The form must be signed and
filed as a joint scheduling memorandum and accompanied by a joint trial
bundle that identifies the documents either party is submitting as exhibits for
the trial of the suit.

The effect of scheduling conference was first considered in the case of

Administrator General vs. Bwanika James & Others: SCCA 7 of 2003 (2005)
1 EA1; an investigation report dated 24th February 1994 prepared by D/SP

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Kauda of CID Frauds section was among the documents agreed upon by the
parties at a scheduling conference presided over by Bbosa J. as she then was.
On Appeal, Twinomujuni JA, who wrote the lead Judgment, agreed to by the
other members of the Coram, observed in respect to the document.

“it is not marked as a Court exhibit and D/ASP Kauda did not give
evidence in Court. The report suggests that the A/c No.3506 did not
belong to the Administrator General but to the Registrar General. It
does not explain however, how Lawrence Lagara, & J.B. Mukasa both
of whom were accountants of the appellant could have been signatories
of the account. In my view, the report has no evidential value and its
contents which were not tested in Court cannot be relied upon”.

On further appeal to the Supreme Court, Tsekooko JSC in his supporting

Judgment held the above observation a misdirection on the evidence because
as a matter of fact the document was admitted during the scheduling
conference as part of agreed document No.5 entitled “A report from the
Criminal Investigation Department Police Headquarters reference
CID/8/FRAUDS dated 7.3.1994. After quoting the rules on scheduling,
Tsekooko JSC held-

“as I understand these provisions, their purpose is to enable parties to

agree on non-contentious evidence such as facts and documents. The
agreed facts and documents thereafter become part of the evidence on
record so that they are evaluated along with the rest of the evidence
before Judgment is given. Indeed in as much as they are admitted
without contest, the contents of such admitted documents can be
treated as truth, unless those contents intrinsically point to the contrary
and if they are relevant to any issue, their admission disposes of that
issue because the need for its proof or disproof would have been
disposed of by the fact of admission”

Tsekooko’s views above were accepted by the Court of Appeal in Elizabeth

Nalumansi Wamala vs Jolly Kasande CA 70/14”. In Adonia Tumusiime &
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Others vs Bushenyi District LG HCT 0032/2012, Mr. Mwesigye Charlie,
Counsel for the defendant submitted that not all the plaintiffs were employed
on permanent and pensionable terms and that 100 of them did not supply their
employment particulars.

The Court rejected this submission holding that in agreed fact Number 1, it
was stated-
“The plaintiffs were former employees of the former greater Bushenyi
District, the first defendant herein”.

The Court relied on the decision in Annet Zimbiiha vs AG HCCS 109/2011,

which held that where parties to a suit duly agree and unequivocally admit to
certain facts in the suit at the scheduling conference the facts are taken as
established and the defendant is estopped from denying them and they cannot
be litigated upon.

Relying on the cases of Stanbic Bank (U) Limited vs Uganda Crocs SCCA
4/2004 and Tororo Cement Co Limited vs Frokina International Limited
SCCA 2 of 2011, the Court underscored the purpose and objects of a
scheduling conference under O.12 rule 1 of the CPR, which are inter alia, to
expedite trials before Court by enabling the parties to sort out points of
agreement at the earliest which need not be litigated upon.

“It is therefore, untenable for the 1st defendant who unequivocally admitted
to facts on Court record at the commencement of the trial to turn around and
attempt to renege on the same facts freely agreed upon and admitted. Such
attempt is rather futile and would amount to legal dishonesty – an absurdity
no reasonable Court of law would uphold”. Per Bashaijja J in Zimbiha’s
case.

In Kampala District Land Board vs National Housing and Construction

Corporation SCCA 2 of 2004, it was held that once facts are agreed and or
admitted, they are no longer in dispute and are put out of scope of the party’s
litigation.
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Framing issues. Order 15 of the CPR.

The framing of issues is provided for in Order 15 of the CPR. An issue arises
whenever evidence on oath or from documents tendered or from the
pleadings, a material proposition of law or fact as alleged by one party is
denied by the opposite party. This means that a trial may raise issues of law
or issues of facts. The issues must be framed from the pleadings on record. In
Fernandes vs Peoples Newspaper Limited, cited in Captain Harry Gandy
23EACA, the Respondent filed no defence to the appellants claim for
damages for negligence and the appellant obtained interlocutory judgment.
On the assessment of damages, the Judge reduced the damages by half in
respect of appellants contributory negligence when no allegation of
negligence had ever been made against the appellant. On appeal the Court
held that as no allegation of negligence had been made against the appellant
by pleadings, the court could not find negligence against him.

Under Order 15 rule (1) (5) the duty to frame issues as may be necessary to
determine the dispute in controversy vests in the trial Court. In Odd Jobs vs
Mubia (1970) EA 476, the Kenyan Court held in accordance with its
equivalent of O.15 rule 1(5), which is identical to ours, that it is the duty of
the Court to frame such issues as may be necessary for determining the
matters in controversy between the Parties. The issues are ideally framed at
the start of the case and the evidence should be guided by the issues. The
court should decide the issues framed. However, the Court has wide
discretion to frame additional issues or amend issues and this can be done
during hearing or even at Judgment. When new issues are framed during
Judgment, the Judge should give an opportunity to the parties to address him
on those issues. In Oriental Insurance Brokers Limited vs Transocean
Uganda Limited SCCA 55 of 1995, it was held that under O.15 of the CPR, a
trial Court has the jurisdiction to frame, settle or determine issues in a suit.
Under O.15 rules 1(5), a trial Court has wide discretion to frame or amend
issues from all materials before it, including pleadings, evidence of the parties
and submissions from Counsel. The Court may amend issues or frame
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additional issues at any time including during Judgment and in doing so, the
Court may impose such terms as it thinks fit. In Jovelyn Barugahare vs
Attorney General SCCA 28/93, the ground of appeal was that the learned
judge erred when he rejected the framed issues by the parties and proceeded
to frame his own after the close of the evidence and submissions of the
parties. It was held that it is clear from order 15 that the issues are to be
framed by court after consultation with the parties or their advocates at the
beginning of the trial. The trial Judge is not bound by those issues. On the
contrary, the Judge may amend the issues, strike out some of them or even
add new ones any time before passing the decree. Where the trial court
amends the issues, it may be necessary to give parties the right to adduce
further evidence. Haji Mohamed Durvesh vs Villani & Fassion (1957) EA 91,
Fangamin vs. Belex Tours and Travel Civil Appeal 6 of 2013(SC).

In Hadija Nakibuka vs Attorney General Civil Appeal 11 of 1993(SC), the

appellant alleged in the plaint that the accident in question occurred, but the
respondent denied any knowledge of such an accident having occurred. The
Court held that the occurrence of the accident was an issue in the suit that
ought to have been framed. In Navichandra Kakubai Radia vs Kakubhai
Kalidas and co Civil Appeal 10 of 1994(SC), it was submitted that the
question whether or not an advocate has been duly instructed to institute a
suit on behalf of his client is a matter of evidence. It was held by the supreme
court that it was quite clear on the pleadings that whether or not the
respondent’s suit was filed with authority was an issue. The allegation of lack
of authority was made by the appellant and was denied by the respondent.
Instead of framing an issue, a preliminary objection was raised. The Court
rightly ruled that evidence was necessary to enable the court to reach a
decision on the matter and that objection was premature

In Somji vs Salum (1990-94) EA 564, it was held that where a Judge considers
an unpleaded issue at writing Judgment, the court should give Parties an
opportunity to address Court on the new issue.

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In Blay vs Polland & Morris (1930) IKB 682, it was held that a Court should
only decide issues on record. It is always advisable for a Judge of first
instance to decide all the issues raised in the case before him so that further
expense to the Parties and further delay caused by sending the case back, as
in this case for assessment of damages is avoided. Selle vs. Associated
Motorboat (1968) EA123.

A court may decide an issue which is not pleaded if the conduct of the parties
during the trial shows that the parties left the issue for the decision of the
court. Odd Jobbs v Mubia (1970) EA 476. f

Preliminary objections: Order 6 rules 27 and 28 of the CPR

In Mukisa Biscuits Manufacturing Company Limited vs. West End

Distributors (1969) EA 696 AT 700, Law JA stated that-

“so far as am aware, a preliminary objection consists of a point of law

which has been pleaded, or which arises by clear implication out of the
pleadings and which if argued as a preliminary point may dispose of the suit.
Examples are an objection to the jurisdiction of the Court”.

Therefore, in Registered Trustees of Catholic Diocese vs Standard Bank

Limited; it was held that preliminary points are to be raised at the beginning
of the hearing and not at the end of the hearing. It was further held that the
issue of capacity to sue goes to the very root of the case and must be pleaded.

In N.A.S Airport Services vs AG Kenya (1959) EA 53, it was held that though
the object of the Order (6 rule 27) is expedition, the point of law must be one
which can be decided fairly and squarely one way or the other, on facts
agreed or not in dispute /in issue on the pleadings and not one which will not
arise if some fact or facts in issue should be proved.

Where a preliminary objection raises issues of evidence which requires proof,

it is to be overruled- Robert Lusweswe vs. GW Kasule (1987) HCB 62., Pan
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African Insurance Company vs. Uganda Airlines Corporation and Others
(1985) HCB 53. Navichandra Kakubhai (supra). In Mukisa Biscuits vs West
End Distributors (1969) EA 696, Newbold CJ held that preliminary points of
law are argued on the basis that the facts pleaded are correct.

In URA vs UCC; HCCA 11/2006 & Bwama Exports Limited; HCCA 6/2003
Ogoola J stated-

“Determination of issues of law takes precedence over determination

of issues of facts. This position is quite understandable in as much as
the principal interest of justice is to dispose of disputes expeditiously.
Accordingly, no matter how complex or interesting the facts of the case
may be, if those facts are backed by some legal irregularity,
impropriety or nullity then the Court is enjoined to dispose of the
matter on the basis of the particular legal issue without waiting to
resolve any other issue between the Parties. In this connection the
Court is expressly allowed to postpone the issues of facts until after
issues of law have been determined. In doing so, the Court disposes of
the entire dispute efficiently and expeditiously without expending
unnecessary judicial time and resources on a dispute that is after all a
n on starter.”

In Everett vs. Ribbands (1952)2QB 198 Romer LJ said that

“ I think where you have a point of law which if decided in one way is going
to be decisive of litigation, then advantage ought to be taken of the facilities
afforded by the rules of court to have it disposed of at the close of pleadings
or very shortly after the close of pleadings”

In Uganda Telecom Limited vs ZTE Corporation SCCA 3 of 2017, it was held

that it is within a Judge’s discretion to decide a preliminary objection there
and then or as part of the main Judgment. According to Kanyeihamba JSC in
Major General David Tinyefuza vs Attorney General, the court is required to

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rule on the matter of preliminary objection immediately even if it reserves the
reasons to be delivered in the judgment.

Examples of preliminary points of law include lack of cause of action, locus

standi, capacity to sue, jurisdiction, limitation of time and res judicata.
Advocates must take care to determine whether the ruling on the preliminary
objection results into an Order or a Decree in order to determine whether an
appeal therefrom is automatic or is one that requires leave of the court.

Preliminary objections in the Court of Appeal and in the Supreme Court: The
objection can be to the competency of the Appeal such as that no appeal lies
as a matter of law (either because no statute provides for it or it is an appeal
against a consent Judgment), failure to take an essential step or taking the
essential step in appeal out of time etc. The party objecting to an appeal on
any of the above grounds would have to file a formal application in order to
be able to raise the objection. In Prof Huqh vs. Islamic University of Mbale
(1995-98) EA117, it was held that objections to the competency of an appeal
must be raised by way of an application otherwise leave of court will be
required. The objection may relate to the manner in which the grounds of
appeal have been framed or in the case of an application to the drafting of
affidavits in support that offend the rules. See Male Mabirizi vs.

Dismissal of Suits- Order 17 and Order 9 of the CPR

Dismissal for want of prosecution, O.17 rule 5. The purpose of this order is to
provide court with administrative machinery to disencumber itself of case
records in which the parties appear to have lost interest. Krakauer vs Katz
(1954) 1 ALLER 244. The Civil Procedure rules were amended by SI 33 of
2019 reducing the period from two years to six months. Before the
amendment to the Rules, a suit would be liable to dismissal if no step was
taken towards its prosecution for a period of two years after its filing. Under
the current rule 5(which replaced the former rules 5 and 6), a suit will be
dismissed automatically if six months elapse after scheduling without any
step being taken for its prosecution by either party. It is apparent that the
language of the rule in former rule 6 differs from the language in rule 5.
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Whereas under the former rule 6, the Court had to order for the dismissal of
the suit, under rule 5, the suit abates automatically.

“Step” under the current rules and before must mean a step taken on the
record such as an interlocutory application. Victory Construction company vs.
Duggal(supra). In Shell Uganda vs. Agip SCCA 49/1995, it was held that to
amount to “a step in the proceedings” the action taken by the defence must be
a step-in furtherance of court proceedings. The step must be taken in court
and not outside. Mere talk between solicitors and their clerks or writing
letters is not enough. Taking out summons or something of that kind suffices.

Where the suit abates automatically pursuant to rule 5, the Plaintiff, may
subject to the law of limitation file a fresh suit. It remains to be interrogated
whether a suit that abates automatically can nevertheless be reinstated. Filing
a fresh suit can always be prejudicial for example, the action may be caught
by time. Therefore, in Rawal vs The Mombasa Hardware Limited (1969) EA
392, the Court of Appeal for East Africa, invoked inherent powers and
reinstated a suit dismissed under rule 6, citing special circumstances of the
case and held that the remedy in rule 6(that of filing a fresh suit) was not
intended to be exhaustive and the inherent powers of the Court was not
excluded. In Henry Muganwa Kajura vs. Joseph Sempebwa and others, Civil
Appeal 201 of 2019, the suit was dismissed in 2003 for want of prosecution
under 0rder 15 rule 6. In 2014, the suit was reinstated and heard on merit. The
Court of Appeal held that the suit was reinstated illegally because a suit
dismissed under rule 6 could not be reinstated. The court made no reference
to Rawal vs Mombasa Hardware above.

A suit may be dismissed under O.5 rule 1(2) (c) when summons is not served
or an application for extension of time has not been filed or has been
dismissed. In Bitamisi Namuddu vs Rwabuganda Godfrey SCCA 16/2004, it
was held that the consequences of failure to serve the summons within 21
days from the date of issue and of not making application for extension of
time in the prescribed period are clear and straight forward – the suit stands
dismissed without notice. The provision does not give Court discretion to
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decide whether to dismiss or not to dismiss the suit. The Courts action is
dictated by law and it is mandatory. The dismissal is also affected without
notice.

A suit may also be dismissed under Order 9 rules 16, 17 or 19. If a suit is
dismissed under O.9 rules 16 or 17, a fresh suit may be filed, or the suit may
be reinstated under O.9 rule 18. Where a suit is dismissed under O.9 rule 19,
a fresh suit may be instituted subject to the law of limitation.

A suit may be dismissed under O.9 rule 22, where only the defendant appears.
The plaintiff in that case must apply for reinstatement of the suit. In Patrick
Mayanja vs Uganda National Roads Authority, Civil suit 39 of 2016, the
Plaintiff’s suit was dismissed under order 9 rule 22. The Plaintiff filed a fresh
suit for the same cause of action. The Court struck out the fresh suit stating
that filing a fresh suit was an abuse of court process as the same was
prohibited by rule 22.

A suit will be dismissed on a notice to show cause under O.17 rule 2, where it
has been adjourned generally and no application is made to restore the suit to
the cause list generally within twelve months. In Victory Constructions
company vs Duggal, it was held that where parties to an action called to show
cause why the suit should not be dismissed for want of prosecution, the court
should be slow to make an order of dismissal if satisfied that the suit can be
heard without further delay, that the defendant will suffer no hardship and
that there has been no flagrant and culpable inactivity on the part of the
Plaintiff.

The justification for dismissal of unprosecuted cases was explained in the

case of Agnes Nanfuka Kalyango vs. Attorney General and Masaka District
Local Government CACA 64 of 2000 (2005) ULSR, the case from filing
delayed for 10 years before trial. By any standards, the Court said, a very
long delay indeed. No fair trial is possible after such a length of delay as
some key witnesses may have changed addresses or have even died. Even if
they are all present, lapse of memory of what actually had taken place is
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bound to affect the accuracy of their testimony. In Scott vs The Mercantile
Accident company (1892) 8T.L.R 431, it was held that

“it is very desirable that the trial should not be delayed for during the delay
witnesses might die or go abroad or their memory of occurrences might
become weak or confused”

In Nyiramakwene vs. Bitariho (1973)1 ULR 67; Court found that O.15 r.6
enables it on its own initiative without notice to either party to dismiss the
suit for an inordinate delay of two years. Court observed that the action
seemed to have been allowed to go to sleep for a little over three years, that it
is the duty of the plaintiff to bring his suit to early trial just as much as is the
duty of the adviser to get on with the case. That it is impossible to have a fair
trial after so long a time. Court observed that it was clear there had been
culpable and inexcusable inactivity on the part of the plaintiff which ought
not to be tolerated.

Cases such as Victory Construction vs. Duggal (1962) EA 697; William C

Parker Limited vs. Ham & Sons Limited (1973)3 ALLE.R 1050, and Austine
Securities Limited vs North Gate English Limited, on the point that although
notice is not required under the former rule 6 but once notice is given, it is
upon the discretion of Court to dismiss or not to dismiss appear to have no
place any more since under the current rule 5, the suit abates automatically.

Cases such as Ayub Suleiman vs. Salim Kabambala SCCA 32 of 1995, which
held that a Court can still dismiss a suit for want of prosecution under its
inherent powers even where the facts did not fall under any of the scenarios
given by the rules would appear to still be relevant, hence in Abdul and
Another vs. Home and overseas (1971) EA 564 and Mukisa Biscuits (supra),
the principle is that the fact that the periods of delay did not fall within any of
the specific periods provided by the rules does not prevent the court from
exercising its inherent powers to dismiss the case. In both those cases, it was
held that the provisions of the CPR for the dismissal of suits for want of
prosecution do not purport to be exclusive and do not fetter the courts
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inherent jurisdiction to dismiss suits in circumstances not falling directly
within those provisions if it is necessary to do so to prevent injustice or abuse
of the process of court.

A Judge dismissing a suit under the foregoing Order should specifically state
the rule under which the suit has been dismissed. This helps the aggrieved
party to decide the proper course of action afterwards. In Horizon Coaches
Limited vs. Pan African Insurance Company Limited SCCA 2 of 2003, after
several adjournments to allow the appellant to produce evidence in support of
its counterclaim, the case came for hearing on 13.2.01. on this date, none of
the parties was present. The case was adjourned sine die. Later that day, the
Respondent’s counsel appeared. Judgment was entered in favour of the
Respondent, but the appellants counterclaim was dismissed. The Judge cited
no rule under which she had dismissed the counterclaim. The Appellant
applied to set aside the exparte Judgment. The application failed, the Judge
for the first time mentioning that she had dismissed the counterclaim under
O.15 rule 4 of the CPR. The Appellant’s appeal to the Court of Appeal failed
because the Court of Appeal held the view that on the authority of Salem A.H
Zaidi vs. Fayd H.Humeddan (1960)EA 92, such a decision could only be set
aside by appeal and not by application before the same court. It was held that
it was necessary to determine under what rule the Court dismissed the
counterclaim. The failure to cite the law left the appellant in a dilemma as to
which course of action to take. Where there are a number of provisions of the
law under which the same decision may be made but with different
consequences depending on which provision you proceed, like in the present
case, it would be desirable to mention the law.

Appeals can also be dismissed where on the day fixed for hearing the Appeal
the Appellant does not attend court. See rules 100 of the Court of Appeal
rules and 96 of the Supreme Court rules.

Reinstatement of dismissed suits: Order 9 and Order 15 of the CPR

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It is trite that courts do not exist for the sake of discipline, but for the sake of
deciding matters in controversy. The administration of justice should
normally require that the substance of all disputes should be investigated and
decided on their merits and errors, or lapses should not necessarily debar a
litigant from the pursuit of his rights. Unless the other party will be greatly
prejudiced and cannot be taken care of by an order of costs, hearing and
determination of disputes should be fostered rather than hindered. Banco
Arabe Espanol vs Bank of Uganda (SCCA 8/98).

A suit may be reinstated under O.9 r.23.

For an application under the rule to succeed, an Applicant must satisfy court
that there was “sufficient cause” for non-appearance i.e. that he had an honest
intention to attend the hearing and did his best to do so, and he was diligent in
applying. The main test for reinstatement of a suit is whether the applicant
honestly intended to attend the hearing and did his best to do so. See National
Insurance Corporation vs Mugenyi and Co Advocates SCCA 14 of 1985 and
Girado vs. Allan and Sons (1971) EA 448. It was held in the Girado case that
even where no sufficient cause has been shown for nonappearance court can
still, under its inherent powers, restore a suit dismissed for default, to avoid
injustice. In Shabir Din vs Ram Parkash Anand (1955) 22 EACA 48, it was
held that a mistake by plaintiffs’ counsel, though negligent, may be accepted.
In Nakiride vs Hotel International (1987) HCB 85, sickness of counsel was
accepted to constitute a just cause, just like in Crown Beverages Limited vs
Stanbic Bank Uganda Limited MC 181 of 2005, where Mr. Akampulira’s
claim of ill health was accepted though he had no medical report
accompanying it because the record showed he had not absented before.

An application to set aside a dismissal must be brought within a reasonable

time because no time limit is set. In Re Dhabule (1977) HCB 75, a year and
two months was considered to be inordinate delay. In the Crown Beverages
case, the court did not consider four months inordinate. In such an
application, good case or not is not necessary. In Mitha vs Ladak (1960) EA,
it was held that it is not open to the court on an application under this rule to
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consider the merits of the suit. Overall, each case should be considered on its
circumstances.

Sufficient cause and good cause relate to the inability or failure to take a
particular step in time. Grounds accepted include mistake of counsel,
ignorance of procedure by unrepresented litigants, illness of a party, etc.
Video World Entertainment vs Jean Nammi MC 517/2014. The case of
Charles Kabagambe vs UPTC CS 681 of 1983 by late Justice C.K
Byamugisha on what amounts to doing your best to be present at the hearing
of the case.

An Appeal that has been dismissed can be restored on proof of sufficient

cause for nonappearance pursuant to rule 100 or 96 of the Court of Appeal
and Supreme Court rules respectively.

Dismissal of suit under order 17 rule 4 of the CPR-

Court may proceed not withstanding either party fails to produce evidence.

A decision on a suit under rule 4 results into a Decree that bars subsequent
suits on the same facts. This means that the option of a new or fresh suit
being filed is not available and the suit cannot be reinstated. The Decree can
only be set aside by appeal. See Roadmaster cycles vs Tarlock Singh (1999-
2000) UCLR 378, Salem A. Zaidi vs Faud Hummedan (1968) EA 92 and
Uganda Development Bank vs. National Insurance Corporation and GM
Combined SCCA 28 of 1995.

Consolidation of suits: Order 11 of the CPR

Order 11 rules 1 and 2 of the CPR. A broad principle has emerged from
English decisions relating to consolidation applications. it is that, where there
are common questions of law and facts in actions having sufficient
importance in proportion to the rest of each action to render it desirable that
the whole of the matters should be disposed of at the same time, consolidation
should be ordered. Stumberg and Another vs. Porgieter (1970) EA 323.
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Under O.11 rule 1, the court may order consolidation of suits in which the
same or similar questions of law or fact are involved. Once that is done, the
court may order those proceedings in any of the suits to be stayed until further
orders.

Two suits involving Shell Uganda and one Madina Nassali (Civil suit
number 212 of 2019 & 54 of 2011) were consolidated pursuant to MA 1049
of 2015(HC) on the basis that they touched the same subject matter and the
question of law involved concerned the subject for determination in both suits
was ownership, both suits fall squarely within the ambit of 0.11 rule 1. This
order enables court to finally and conclusively determine the rights of the
parties and avoid a multiplicity of suits.

Care must be taken in the magistrate Courts to ensure the consolidation does
not cause or lead to exceeding jurisdiction of that court. Kivamukutesa
Consumers vs. Nelson Sebugwawo (1986) HCB 61

Appeals can also be consolidated pursuant to rules 101 and 97 of the Court of
Appeal and of the Supreme Court rules respectively.

Withdrawal, adjustment and Compromise of suits – Order 25 of the CPR

Withdrawal of a suit.

A plaintiff is at liberty by notice to the court in writing to withdraw a suit at

any time before the delivery of the defendant’s defence or after the delivery
of the defence but before taking any other proceeding in the suit. After that
stage, a suit can only be withdrawn from court with the leave of court. In Fox
vs The Star Newspaper Company Limited (1889)1 QB Chitty LJ stated that -

“The principle of the rule is plain. It is that after the proceedings have
reached a certain stage the plaintiff, who has brought his adversary into
court, shall not be able to escape by a side door and avoid the contest. He is
17
then to be no longer dominus litus, and it is for the Judge to say whether the
action shall be discontinued or not and upon what terms …The substance of
the provision is that after a stage of action has been reached at which the
adversaries are meeting face to face, it shall only be in the discretion of the
judge whether the Plaintiff shall be allowed to withdraw from the action so
as to retain the right of bringing another action for the same subject matter.

The reasons for withdrawal may be that the Plaintiff has realized that some
technical defect may defeat an otherwise good case. So, under rule 1(1), the
suit can be withdrawn, and a fresh suit may be filed. Under rule 1(2), the
Judge hearing an application for withdrawal of a suit may allow the
application with conditions as to costs and as to the filing of a fresh suit. An
application for withdrawal may be allowed on conditions that no new suit will
be filed. This would be the case where it can be shown that the withdrawal
will prejudice the other party bearing in mind that the object of Order 25 rule
1(2) is not to enable a plaintiff after he has failed to conduct his suit with
proper care and diligence and after his witnesses have failed to support his
case, to obtain an opportunity of commencing the trial afresh in order to avoid
the results of his previous bad conduct of the case so as to prejudice the
opposite party. In Stahlschmidt vs Watford (1879)4 QB at page 219, Mellor J
stated that-

“But the discretion thus given must be exercised within certain limitations
and so as not to take away from the defendant any advantage to which he is
fairly and reasonably entitled”

In Firipo Masanga vs. Buganda Saw Mills Limited (1973)1 ULR 130, after
issues had been framed and the plaintiff finished giving evidence, his counsel
applied for leave to withdraw the suit under order 22 rule 1(2) of the
CPR(now order 25 same rule). It was apparent that this rather unusual course
was adopted because of the unsatisfactory and confused evidence which the
plaintiff gave. The Application was resisted on the ground that plaintiff’s
counsel knew that he could not possibly succeed on the evidence. The Court
held that in such circumstances, it is judicious and fair, in the exercise of the
18
courts discretion to impose a term in addition to the costs that no other action
shall be brought by the plaintiff for the same subject matter.

Compromise of a suit. Rule 6

The rule gives mandate to the court to record a lawful adjustment or

compromise and pass a Decree in terms of such compromise or adjustment.
The agreement, compromise or satisfaction contemplated by this rule may
relate to the whole suit or it may relate to a part thereof or it may also
compromise matters that do not relate to the suit. When the agreement relates
to the whole suit the court must on being invited by the parties, record the
agreement and pass a Decree and the suit stops there. Where the agreement
settles apart of the suit, the court records a Decree for that part and proceeds
to hear the rest of the case as not settled.

Where both parties to a suit apply to court under the rule to pass a Decree in
accordance with the compromise arrived at between them the court has no
powers to refuse to pass the decree on the grounds that it considers the
compromise to be too favorable to one of the parties. In Sourendra Nath vs
Gangappa (1970) 2Mys.L.J 478, it was held that the court has a duty not a
discretion to record a lawful compromise subject possibly to an inherent
power of refusal when a substantial injustice would be worked, or where the
agreement or compromise is barred by statute or if the compromise is a
nullity or where the compromise is not in the interest of the public or is
contrary to public policy.

In Stephen Kasozi vs. Peoples Transport Services (1990-94) EA162, it was

held that the duty of the court was to recognize and take recognition of the
compromise and consent. The Court further held that if it had reasons to
reject the consent and compromise, it would call the parties and even go
ahead to give reasons why it was rejected. In that case, the issue concerned
the question whether a trial judge could ignore an agreement of the parties
compromising part of the suit and asking for damages to be assessed on the
basis of the compromise. At the end of the hearing of the evidence of the
19
appellants (Plaintiffs), their counsel stated that he will not be calling further
evidence and that the case is left to court to assess damages in favour of his
clients. Counsel for the Respondent (defendant) stated that “am agreeable
with the submission of Mr. Mugabi.)

The supreme court observes that the effect of this compromise was that the
first five issues leading to a decision on liability had been answered and what
was left was the 6th issue on damages. To the surprise of the parties, the Trial
Judge delivered Judgment against the Appellants stating that all the evidence
recorded could not simply be excluded and holding that the appellant were
trespassers and not therefore entitled to any compensation.

Res Judicata- Section 7 of the CPA

Section 7 of the CPA: Is a bar to the trial of a suit that raises issues that were
the subject of another suit tried and concluded by a court. It embodies the rule
of conclusiveness of judgments as to the points decided, in every subsequent
suit between the same parties. It is based partly on the maxim interest
republicae ut sit finis litium – there be an end to lawsuit and is based partly on
the maxim memo debet bis vexari pro una et eadem causa – no man should be
vexed twice over for the same cause. It was held in the case of Maniraguha
Gashumb vs Sam Nkundiye CACA 23 of 2005 decided in 2013 that
Resjudicata bars trial of another suit and therefore goes to jurisdiction of the
court in the second suit and cannot be waived.

The section is intended not only to prevent a new decision but also to prevent
a new investigation so that the same person cannot be harassed again and
again in various proceedings upon the same question. An erroneous decision
will be as much resjudicata as a correct one and a decision will not cease to
be resjudicata merely because the view of law on which it is based ceases to
represent the correct law owing to a later judicial decision or legislative
enactment.

20
Perhaps the best expression of the rule appears in the case of Kamunye vs.
Pioneer Assurance Limited (1971) EA 263, where it is stated that-

“a transaction that has been put before a court of competent jurisdiction in

earlier proceedings and which has been adjudicated upon is resjudicata not
only on points upon which the first court was actually required to adjudicate
but to every point which properly belong to the subject of the litigation and
which the parties exercising reasonable diligence might have brought
forward at the time”.

See also the case of Bukondo vs Rwakanengyere (1978) HCB 96 and

Greenhalg vs Malland (1947)2 ALLER 255. The parties in the subsequent
suit are estopped from showing that the decision or judgment in an earlier suit
is incorrect. Court is therefore required to effect the decision but it is not
bound to hold that it is right.

In order that section 7 applies, the following conditions are necessary.

(a) The matter directly and substantially in issue in the subsequent suit
must have been directly and substantially in issue in the former suit.
(b) The former suit must have been between the same parties or between
parties under whom they or any of them claim.
(c) Such parties must have been litigating under the same title in the
former suit.
(d) The court trying the former suit must have been a court competent to
try the subsequent suit or the suit in which such issue is subsequently
raised.
(e) Such matter in issue in the subsequent suit must have been heard and
finally decided in the first suit.

See Sunday Edward Mukooli vs. Administrator General SCCA 6 of 2016,

reviewing and accepting Sempa Mbabali’s case. In Sunday Edward Mukooli,
the plea of resjudicata failed because the court that heard the first suit was not

21
a court of competent jurisdiction and therefore did not satisfy condition (d)
above.

Matter substantially in issue – means of importance and value. Whether it

was substantially in issue is a matter of fact. The section does not require that
the entire subject matter of the two suits should be identical. The doctrine of
resjudicata applies not only to a whole suit but also to individual issues in the
suit. Hence, even if one of the issues is common to both suits the rule of
resjudicata applies so far as that issue is concerned.

In Sugar Corporation of Uganda Ltd vs Kanabolic Group of Companies

SCCA 57 of 1995, after adjourning the resolution of a dispute referred to him,
the arbitrator made an award. The appellant was dissatisfied with the award
and applied to set it aside on the grounds that the arbitrator was biased, and
the award was excessive. The application was heard and dismissed.
Appellant then filed two applications for setting aside and for stay pending
the first application. The court heard both applications together and held that
the first application was resjudicata and dismissed it. In this application,
counsel contended that there had been an illegality committed in the several
extensions / adjournments made without the consent of court as required by
section 10 of the Arbitration Act. Therefore, the arbitrator acted without
jurisdiction and this being an illegality can be heard under section 101 of the
CPA. This question had not been raised in the first application which had
been dismissed. It was held that the issue of illegality ought to have been
raised in the previous application which challenged the arbitrator’s award
because it was substantially an issue in that application. It was not so raised
and could not be raised in a subsequent and similar application as this would
offend the principle of resjudicata.

“Persons under whom they are litigating”, examples (representative action,

suits by agents, suits by administrators of estates or trustees – beneficiary). In
Lotta vs. Tanaki and others (2003) EA556, the court considered that under
explanation (iv) a person does not have to be formerly enjoined in a suit but
will be deemed to claim under the person litigating if he has a common
22
interest in the subject matter of the suit. In that case, the suit property was at
one time in the occupation of the appellant’s mother and sister, giving all
three a common interest therein. it was held that since the appellant’s mother
and sister had sued on the same subject matter, the appellant could not be
disassociated from that litigation but was to be deemed to claim under his
mother for the purposes of section 9 ( section7 for Uganda).

What is now intriguing is whether a disposal of a case on a preliminary point

of law means that a subsequent suit is resjudicata. The position has almost
been settled that the suit must have been determined on its merit in order to
constitute a bar to a subsequent suit by the same parties on the same issue. Lt
David Kabareke vs. MJ Nalweyiso CACA 34 of 2003, where it was held that
Resjudicata does not arise where the matter is not heard on merits. The
decision of the Court of Appeal in Tukamuhebwa George and 2720 others vs
Attorney General Constitutional Petition 59 of 2011, made a distinction
between a dismissal of a suit on a preliminary point of law and a dismissal of
a suit on a technicality and effectively held that a dismissal of a suit on a
preliminary point of law is a dismissal on merit that bars a subsequent suit.
The Court held that

“In this Petition however, it appears to us that the Petitioners feel that when
a case is dismissed on a point of law then the dispute has not been
adjudicated upon. It appears to us that the Petitioners take the view that a
dismissal of a case on a point of law is akin to a dismissal of the case on a
technicality. Nothing is further from the truth. A dismissal on a point of law is
fundamental and in the eyes of the law resolves the dispute unless if there is
an appeal and the dismissal is set aside with or without further orders. The
matter was therefore determined by the High court and as a result we find it
resjudicata in respect of enforcement and no further suit can be brought at
the High court or any other court in this regard”.

Where an action is dismissed in default of appearance of the plaintiff as

provided for in order 9 of the CPR, the dismissal does not constitute res
judicata since the plaintiff is entitled to apply to court to set aside the
23
dismissal and as stated by Windham CJ in Musa bin Kamisi vs. Kapolo bin
Kasibu (1957)EA 189,

“a judge dismissing the plaintiff’s suit in default of the plaintiff’s appearance

cannot be said to have “heard and finally determined” the matter in dispute
for the purposes of constituting res judicata under the section”

See Lugobe vs. Barclays Bank Uganda Limited (1973)1 ULR 86.

The plea of resjudicata must not only be pleaded, it must be proved. See
Mandavia vs Singh (1965) EA118. In Farook Aziz vs Abdalla Abdu Maruku
SCCA 4 of 2002, it was held that it is not sufficient merely to plead the
defence of resjudicata without evidence to substantiate it. Oral evidence in
court is not sufficient to establish the plea, but rather the proceedings or
judgments of the first court must be tendered in evidence in order to establish
the parties, the subject matter of the dispute and the decisions of the court.

Resjudicata doesnot apply in respect of an order granted in the same suit

because section 7 refers to “a former suit” as a necessary condition for
application of the principle of res judicata. See Fredrick Sekyaya vs Daneil
Katunda (1979) HCB 46, recently approved in Kato Ddungu vs. NPART Civil
Appeal 61 of 2003(CA)

There is no res judicata where the claims of the plaintiff are inconsistent and
mutually destructive. A party suing for misfeasance, can sue for nonfeasance
later. Gurbachan Singh vs. Yowani Ekaru (1958) EA 450.

Stay of suit- Section 6 of the CPA. section 6 provides.

No court shall proceed with the trial of any suit or proceeding in

which the matter in issue is also directly and substantially in
issue in a previously instituted suit or proceeding between the
same parties, or between parties under whom they or any of them
claim, litigating under the same title, where that suit or
24
 proceeding is pending in the same or any other court having
jurisdiction in Uganda to grant the relief claimed.

Explanation – The pendency of a suit in a foreign court shall not

preclude a court from trying a suit in which the same matters or
any of them are in issue in that suit in the foreign court.

In High Court Civil Suit no. 1314 of 2000; Bank of Baroda vs. SDV
Transami (U) Limited Justice Lugayizi (as he then was) explained that the
above provision simply means that a court in Uganda is prohibited from
trying a matter involving litigants or their agents who are also litigants in an
earlier unresolved matter (in Uganda) which has substantially the same
issues for determination as the subsequent matter. section 6 is founded on
the maxim res sub judice based on public policy which aims to confine a
Plaintiff to one litigation and to obviate the possibility of two contradictory
judgments by one and the same court in respect of the same relief. Chitaley
and Rao, the learned authors of Commentaries on The Code of Procedure
of India (V of 1908), 7th Edition at page 214 commenting on the scope of
section 10 which is in parimateri with section 6 said that the object of the
rule contained in section 12 of the Code (now s.10) is to prevent Courts of
concurrent jurisdiction from simultaneously entertaining and adjudicating
upon two parallel litigations in respect of the same cause of action, the same
subject matter and the same relief. The policy of the law is to confine the
plaintiff to one litigation, thus obviating the possibility of contradictory
verdicts by two or more Courts in respect of the same relief.” In Sagar
Shamsher Jang Bahadur vs. The Union of India and others AIR 1979
Delhi 118, the Delhi High Court held inter alia that the object of this section
is to prevent courts of concurrent jurisdiction from simultaneously trying two
parallel suits relating to same questions in dispute. In National Institute of
Mental Health & Neurosciences vs. C. Parameshwara AIR 2005 SC 242,
the Supreme Court of India held that the object of section 10 is to prevent
courts of concurrent jurisdiction from simultaneously trying two parallel suits
in respect of the same matter in issue. The object underlying section 10 is to
avoid two parallel trials on the same issue by two Courts and to avoid
25
recording of conflicting findings on issues which are directly and
substantially in issue in a previously instituted suit. Therefore, the test under
section 6 of the CPA is:

i. The matter directly and substantially in issue in both suits must

be the same.
ii. The matter in issue must be between the same parties, or between
parties under whom they or any of them claim.
iii. The previously instituted suit must be pending.

According to Chitaley and Rao (supra), One test of the applicability of

section 10 (section 6 of the CPA) to a particular case is whether, on the
final decision being reached in the previous suit, such decision would
operate as res judicata in the subsequent suit. Where the above
conditions are satisfied, the court has no discretion in the application
of the section as the provisions of this section are mandatory.”

At page 223 of Chitaley and Rao (supra), the learned authors observe that;
It is not necessary for the application of the section that all the parties on
either side should be the same in both suits. It is enough if there is a
substantial identity of the parties.” This conclusion is based on the decision
in Raja Ram Estate vs. Niharmoni Law and Another 2006(3) CHN 465
where the Calcutta High Court held that section 10 of the Indian Code of
Procedure is not made inapplicable by reason of one additional party to one
of the suits.

Matter directly and substantially in issue in both suits: in the case of Raja
Ram Estate vs. Niharmoni Law and Another (supra) at 3 thereof. In that
case, the suit in the City Civil Court of India was for cancellation of a
development agreement. The other suit in the Calcutta High Court was for
specific performance. The Court observed that the validity of the agreement
was a common feature in both suits. In his judgment, Kumar Banerjee J held
that:

26
 “In the present case, the City Civil Court suit was for
cancellation of the development agreement whereas the
Calcutta suit is for specific performance of the same.
Hence, validity of the agreement is a common feature in
both suits. If I take into account the said factor, only the
second suit is liable to be stayed. However, let us examine
whether the judgment of the first suit can apply as res
judicata in the later suit or not. If the City Civil Court suit
is decreed in favor of the plaintiff and thereby the
development agreement is declared as cancelled, the
Calcutta High Court suit being the later one would
automatically fail.”

Costs: Section 27 of the CPA

A successful party is entitled to costs unless the court orders otherwise. Put
the other way, costs follow the event. The event is either a dismissal or an
order allowing the suit. When the suit is allowed, the costs of the suit will be
paid by the defendant. When the suit is dismissed, the costs are payable by
the plaintiff. In Hussein Jan Mohamed & Sons Ltd vs Twentsche Overseas
Trading Co. Ltd (1967) EA 287, it was held, approving Mulla’s commentary
on section 27 of the CPA thus –

“the general rule is that costs shall follow the event unless the court,
for a good reason, otherwise orders. This means that the successful
party is entitled to costs unless he is guilty of misconduct or there is
some other good cause for not awarding costs to him. The court may
not only consider the conduct of the party in the actual litigation, but
the matters which led up to the litigation.”

In Devran Nanji Handus Kalidas Dawda (1949) 16 EACA 35; the Court of
Appeal held –

27
 “a successful defendant can only be deprived of his costs when it is
shown that his conduct either prior to or during the course of the suit
has led to litigation which but for his own conduct might have been
averted.”

In Uganda Transport Co.vs. Outa (1985) HCB 27; the Judge struck out the
plaint and he did not award costs for the appellant for the reason that counsel
did not ask for costs. Court found that the award of costs is in the discretion
of Court under S.27 of the CPA. The reasons given by the trial Judge that
counsel did not apply for costs was not a sound reason for the judicial
exercise of the discretion. In other words, costs follow the event.

The grant of costs or not or the amount is an exercise in discretion by the

court. In SDV Transami vs Nsibambi Enterprises (2008)ULR 497(CA), in
awarding costs to the respondent, the Judge stated as follows –

“Before I take leave of this case, I must say I am disappointed that the
plaintiff’s counsel made no effort at all to provide any assistance to
this court in terms of legal authorities in support of the plaintiff’s case.
The case was just thrown at the court. This is unacceptable. For that
reason, I shall award the plaintiff half of the costs of appeal.”

A cross appeal lodged against the order awarding half the costs succeeded,
the CA holding that –

(a) Where a trial court has exercised its discretion on costs, an appellate
court should not interfere unless the discretion has been exercised
injudiciously or on wrong principles. Where it gives no reasons for its
decision, the appellate court will interfere if it is satisfied that the order
is wrong. It will also interfere where reasons are given but reasons do
not constitute good reasons within the meaning of the rule.

28
 (b)The mistake of counsel should not be visited on his client. The
respondent was the successful party entitled to costs and the reasons
given were not good.

So, costs may be denied if an offer similar to the results of the judgment was
made and unreasonably rejected; where notice of action was not given and
there is evidence that if it had been given the defendant would have paid.
Wambugu vs Public Service Commissioner (1972) EA 296; in matrimonial
cases or in cases where parties are related, where there is partial success, half
costs may be awarded. if it is a public interest litigation, costs may be denied.
In Muwanga Kivumbi vs AG SC Constitution Appeal 6 of 2011, it was held
that in public interest litigation, a court should exercise its discretion to award
costs infrequently and where costs are awarded in public interest litigation
cases, the award should be nominal. In Twinobusingye vs AG Constitutional
reference 27/2018, Justice Keneth Kakuru commented –

“Jurisprudence has evolved in other jurisdiction notably USA, Canada

and Australia that costs in public interest litigation may be awarded to
a public litigant but not against him or her. Whichever is the case, the
principles to be followed regarding award of costs in public interest
matters slightly differ from those in ordinary suits or appeals.”

In Advocates for Natural Resources Governance vs Attorney General Petition

40 of 2012, it was held –

“As to costs, a practice has evolved in this and other courts that parties
who seek to enforce in courts of law fundamental human rights
enshrined in the bill of right in this country’s constitution should not
seek legal costs. This is a good practice that was adopted in this very
petition. The rationale for this is that no one should be seen to be
profiting from a matter in which he or she has no interest beyond that
of other members of the public. Secondly, in every constitutional
petition, the AG is a statutory respondent representing the government
elected by the people. Whenever costs are awarded against the AG
29
 they are paid out of public funds. A person who brings a public interest
action would then be requiring the same public to pay him or her costs.
In the event that a public interest petitioner or litigant is unsuccessful
and is condemned to pay costs, that too would be unfair. One
individual would have to pay costs in a matter that he or she has no
interest beyond that of the other members of the public. This would
create a chilling effect and stifle the enforcement of rights and the
growth of constitutionalism.”

Even in some matters where litigants have had personal interests courts have
declined to grant costs on account of the public interest of the matter. In
Presidential Petition 1 of 2001, Okoki CJ held –

“In several cases of significant political and constitutional nature, this

court has ordered each party to bear its own costs. This was done in
the case of Prince Mpuga Ruhindi vs Prince Solomon Iguru CA 18/94;
Attorney General vs David Tinyefuza.”

Mulenga JSC held –

“In the case of Major General David Tinyefuza, this court ordered
each party to bear its costs although the appeal was dismissed. The
court reasons for doing so, were that in order to encourage
constitutional litigation parties who go to court should not be saddled
with the opposite party’s costs if they lose. If potential litigants know
that they would face prohibitive costs of litigation, they would think
twice before taking constitutional issues to court. Such discouragement
would have adverse effect on development of the exercise of court’s
jurisdiction of judicial review of the conduct of authorities or
individuals which are unconstitutional, it would also stifle the growth
of our constitutional jurisprudence.”

An unnecessary refusal to admit facts and pleading false facts subsequently

withdrawing them is a good ground for denying a successful defendant costs
30
of the trial. Multi Holdings vs UCB (1973) EA 28. A successful party was
denied costs because it was guilty of some sort of conduct relating to the
litigation or the circumstances leading up to the litigation. Anglo Cyprian
Trade Agencies Limited vs. Paphos Wine Industries Limited (1951)1ALLER
873.

Court ordering counsel to pay costs personally- this is possible where counsel
has been negligent in handling his client’s brief. An advocate should be heard
before such order is made against him, in default of which the order would be
set aside on appeal – JB Kohlil & Others vs Bachulal Popallac (1964) EA
219 and Kamurasi Charles vs Accord Properties Limited (2000)1 EA 90.

Costs have no limit – see Atto vs. Alwala (1986) HCB 65. These were
affiliation proceedings and the Court held that costs in any suit have no limit
and that the Magistrate Court can award costs which exceed the pecuniary
jurisdiction of a presiding Magistrate provided they were incurred during the
course of litigation.

The successful party files a bill of costs prepared in accordance with the
Advocates Remuneration & Taxation of Costs Rules, applicable to the High
Court and Magistrates Court. In the upper courts, the bills of costs are filed
under rules and the schedule to the rules applicable to those courts. In all, are
taxed by the Registrars. If dissatisfied by the Registrar, issue can be referred
to a single Judge and on to the full bench. The principles of taxation of costs
in the High Court and upper courts are well enumerated in several cases
including – Uganda Blanket manufacturers vs.

Interest- Section 26 of the CPA

Interest is awarded on the ground that a party has withheld money belonging
to the other unjustifiably. The award of interest or the amount of interest or
the date of the award is discretionary, except where parties to a dispute had
agreed to a rate in which case it will be awarded unless it is found to be

31
illegal or unconscionable or fraudulent. Shah vs Guiders International Bank
Limited (2002)1EA 269.

Under Section 26, interest can be awarded from the date of the cause of
action or the date of filing the plaint or from the date of judgment. Interest on
general damages (assessed at the time of judgment) is usually awarded from
the date of judgment. In Kibwana & Another vs Jambe (1990-94) EA 223, it
was held that in a claim for general damages, no interest can be awarded for
the period prior to the delivery of judgment because before the delivery of
judgment which awarded the general damages, the plaintiff was not entitled
to any particular amount which could attract interest. Interest on general
damages is only due after judgment, see also Prem Lata vs Peter Musa
Mbuju (1965) EA 592.

On the other hand, interest on special damages (amounts that can be

calculated to a cent at the time of filing) is usually awarded from the date of
filing the plaint but can be awarded from date of cause of action. Interest
awarded from date of cause of action is also called “interest antecedent to the
suit” and according to Highway Furniture Mart vs PS (2006)EA 94, it is only
claimable where it is allowed by mercantile usage that has been proved or
where there is a statutory right to interest or where an agreement to pay
interest is express or implied from the course of dealing between the parties.

In Lwanga vs. Centenary Rural Development Bank (1999) IEA 175, it was
held that an employee wrongfully dismissed is entitled to interest on his
awards from the date of cause of action. In Kanabolic Group of Company
(U) Ltd vs Sugar Corporation of Uganda SCCA 15 of 1994, It was held that a
court exercises discretion when ordering for payment of interest. In practice
where interest has been properly asked for by a litigant deprivation of interest
should be supported by reasons.

In Ecta Uganda Limited vs Geraldine s. Namirimu SCCA 291 1994,

interpreting section 26 of the CPA held –

32
 “Clearly the court has discretion to award reasonable interest on the
decretal mount. But it appears that a distinction must be made between
awards arising out of commercial or business transactions which
would normally attract a higher interest, and awards of general
damages which are mainly compensatory. There is merit in the
challenge of interest of 25% awarded on general damages. It is too
high and must be reduced to 8%.”

In Kanabolic Group of Companies (U) Ltd vs Sugar Corporation of Uganda

Ltd SCCA 13 of 1994; it was held that interest can be awarded-
(a) Before the institution of a suit which normally arises in cases of
claims for special damages such as where the claim is for expenses
actually incurred before the suit is filed or for dispossession of an
article before filing.

(b) From the date of filing suit till judgment. This is applicable where a
debt is due at the time of filing the suit.

(c) From date of judgment. This type of interest is awarded on general

damages
In EADB vs Interfreight, 36% was awarded on foreign currency award. In
BM Technical Services vs Crescent Transporters SCCA 8 of 2001, 4% was
awarded. The Court of Appeal increased it to 22% on grounds that it was a
commercial transaction. The Supreme Court reduced it to 10% because the
transaction was not commercial. In Premachandre Shenoi & Another vs
Maximov Petrovich SCCA 9/2003, court accepted 20% on a dollar award on
the ground that the dispute was commercial. In Obote vs Kennon Trading
Civil Appeal 25 of 1995, it was held that where parties do not lead evidence
in support of their interest rate claims, such parties should be content with an
award of interest at court rate. This principle in this decision is rarely
followed as interest rates on shillings claims appears to be assumed by court.

It is therefore apparent from the many reviewed cases that courts make a
distinction between commercial disputes which attract a higher rate than other
33
ordinary disputes whose rate may be lower- Ecta’s case and further,
distinction is made between claims in foreign currency which attract a lower
rate consistent with the rate applicable on loans advanced in foreign currency
compared to awards in Uganda shillings, the rate of which ranges between
10% to 25% and which is always simply assumed rather than proved.

Denying interest. The case of Uganda water and Sanitation NGO versus
John Byaruhanga, Civil Appeal 68 of 2003(CA) offers an example when a
person may be denied interest. Following his dismissal, the employer sent a
cheque for 18.6 m to the Respondent to his Advocates which he rejected. The
court found that he was entitled to that same amount and denied him interest
on that sum.

Adjournments- Order 17 rule 1 of the CPR.

Famous cycle Agencies Limited vs Ramji Karia SCCA 16 of 1994.

Interpreting O15 rule 1, the Supreme Court held-

Rule 1. The Court may if sufficient cause is shown, at any stage of the suit
grant time to the Parties or to any of them and may from time to time adjourn
the hearing of the suit.

Interpreted-

“Under this rule the granting of an adjournment to a Party to a suit is

thus left to the discretion of the Court. The discretion is not subject to
any definite rules but should be exercised in a judicial and reasonable
manner, and upon proper material. It should be exercised after
considering the party’s conduct in the case and the opportunity he had
of getting ready and the truth, and sufficiency of the reason alleged by
him for not being ready. The discretion will be exercised in favour of a
party applying for adjournment only if sufficient cause is shown.
Sufficient cause refers to the acts or omission of the applicant for

34
 adjournment. What is sufficient cause depends upon the circumstances
of each case.

Generally speaking, where the necessity for the adjournment is not due to
anything for which the party applying for it is responsible, or where there has
been little or no negligence on his part, an adjournment would not normally
be refused. But where the Party has been wanting in due diligence or is guilty
of negligence an adjournment may be refused. These circumstances have
been accepted as constituting sufficient cause.

(a) Where a Party is not ready for the hearing by reason of his having been
taken by surprise, such as where a new matter arises at the trial which
catches the party unawares. Salongo vs. Nantengolola(1976) HCB 20.

(b)Where he could not reasonably know of the date of hearing in sufficient

time to get ready for the same.

(c) Where his witnesses fail to appear for the hearing owing to non-service of
summons to them when such nonservice is not due to the fault of the
Party.

(d)Where the absence of witnesses is due to bona fide mistake on the part of
the Party.
(e) Where a Party is not ready owing to his lawyer having withdrawn his
appearance in the case under circumstances which do not give the Party
sufficient time to engage another lawyer and enable him to get ready.

(f) Where the refusal of an adjournment to a Party will enable the opposite
party to successfully evade a previous interim order against him.

In Yahaya Kirisa vs Attorney General SCCA 7 of 1994, it was held that it is in

the discretion of a trial court to allow or refuse an application for
adjournment. It is settled law that discretion must be exercised judiciously.

35
An appellate court would normally not interfere with the exercise of the
discretion unless it has been exercised injudiciously.

Discretion means the faculty of deciding or determining in accordance with

circumstances and what seems just, fair, right equitable or reasonable in those
circumstances. Famous cycle case (supra)

In Sherief Yusufu vs Phillip Kioki (1951) 24(2) KLR 75, the plaintiff had
telegraphed the Courts that he was sick in hospital. It was held that a court
cannot grant an adjournment requested for by a letter of a plaintiff who does
not appear. In Acaali Manzi vs Nile Bank HCCS 87 of 1993 (1994) KALR
123, an application for adjournment by letter was not accepted by Tsekooko
J. he held that applications for adjournments by letter would not be accepted
under normal circumstances.

PRE-TRIAL & JUDGMENT REMEDIES, Order 23, 40 and 41 of the

CPR.

We consider injunctions, security for costs and arrest and attachment before
Judgments:

(a) Injunctions: The power of Court to issue an injunction (temporary

injunction) is found in Section 98 of the CPA, Section 33 and 38 of
Judicature Act and Order 41 rules 1 and 9 of CPR. Injunctions are issued
early in a suit or at any time to maintain the status quo by say preventing
the defendant from becoming insolvent or doing harmful actions in respect
of the subject matter of the dispute. The grant of an injunction is entirely
discretionary but like all discretionary powers, it must be exercised
judicially.

An injunction is a Court Order requiring an individual to do or to omit

doing a specific action. It is an extra-ordinary remedy that courts utilise in
special cases where preservation of the status quo or taking some specific
action is required in order to prevent possible injustice. In Francis Drake
36
Lubega vs. Attorney General MA 31& 32 OF 2011(cc), it was held that a
temporary injunction is an order to maintain the status quo and it is
intended to prevent harm or preserve the existing conditions so that a
party’s position is not prejudiced in the meantime until the resolution by
court of the issues in dispute.

In State vs Odell 193 wis.2d (1995), court stated that an injunction is a

prohibitive equitable remedy issued or granted by a court at the suit of a
petitioner, directed at a respondent forbidding the respondent from doing
some act which the respondent is threatening or attempting to commit or
restrain the respondent in continuance thereof, such act being unjust,
inequitable or injurious to the petitioner and not such as can be addressed
by an action at law.

The principles for which temporary and or interlocutory injunctions are

granted have been reiterated by courts in countless number of cases. The
granting of a temporary injunction is an exercise of judicial discretion and
the purpose for granting it is to preserve matters in status quo until the
question to be investigated in the suit can be finally disposed of.

Noor Mohammed Jan Mohamed vs Kassamali Virji (1953) 20 EACA 80.

It has long been established that the conditions for grant of a Temporary
injunction are that-

a) The Applicant must show a prima facie case with a probability of

success. Geulle vs Cassman Brown co (1973) EA 358.

b) An injunction will not normally be granted unless the applicant

might otherwise suffer irreparable injury which would not be
adequately compensated by an award of damages. Noor
Mohamed (supra).

37
 c) Where Court cannot make up its mind after considering the
above criteria, the applicant must satisfy it that the balance of
convenience lies in his or her favour.

EA Industries vs Trafords (1972) EA 420 Kiyimba Kaggwa vs Haji Kasule

(19850 HCB 43.

A prima facie case: The court must be satisfied that the claim is not
frivolous or vexatious and that there is a serious question to be tried.
American Cynamide vs Ethicon (1975) ALLER 504. A prima facie case
with a probability of success is no more than that the court must be
satisfied that the claim is not frivolous or vexatious. In other words, that
there is a serious question to be tried. The applicant is required at this
stage to show a probability of success but not success. Robert Kavuma vs
Hotel International SCCA 8 of 1990 (1993)2 KALR 73 (per Wambuzi CJ);
Kiyimba Kaggwa, Devon vs Bhades (1972) EA 22.

Status quo is purely a question of fact and simply denotes the existing state
of affairs existing before a given particular point in time and the relevant
consideration is the point in time at which acts complained of as affecting
or likely to affect the existing state of things. Damel Mukwaya vs
Administrator General; HCCS 630 of 1993, Rainbow Musoke vs Ahamade
Kesale (1987) HCB 81, Board of Governors of Kawempe Muslim vs
Hussein Kasekende. MC 637 of 2006, it was considered as meeting the
ends of Justice to allow Kasekende to sit his O’level exam held once in a
year.

Irreparable damage/injury- By irreparable injury, it does not mean that

there must not be physical possibility of repairing the injury, but it means
that the injury or damage must be substantial or material one that is; one
that cannot be adequately atoned for in damages. Tonny Wasswa vs Joseph
Kakooza (1987) HCB 79; NTCO Limited vs Hope Nyakairu (1992 – 93)
HCB, 135; Francis Kanyanya vs Diamond Trust Bank: HCCS 300 of
2008. The fact that an applicant may not be able to sit his/her examinations
38
as scheduled because of the respondent’s orders has been approved as
likely to cause irreparable damage – Daniel Jakesa vs Kyambogo
University MA 549 of 2013. A possible breach of constitutional rights
especially the right to be heard has also been approved as one that is likely
to cause damage that is irreversible. Tusingwire vs. Attorney General and
Bororozi vs. Kasiriveu Atwooki. Bassajjabalaba vs. Attorney General.
Irreparable damage means damages that cannot be easily ascertained
because there is no fixed pecuniary standard of measurement, e.g.
damages for a repeated public nuisance. Also termed non-pecuniary
damages

Balance of convenience means that if the risk of doing an injustice is

going to make the applicant suffer then probably the balance of
conveniences is favourable to him/her and the court would most likely be
inclined to grant the application. The respective inconvenience or loss to
each party if the order is granted or not should be considered. In Sulaiman
Muwonge Lubega vs. Attorney General (2012) HCB, the Constitutional
Court held in an application to stop a commission of inquiry from further
proceedings till the disposal of the petition that-

“in terms of balance of convenience, Members of the Commission and

staff had so far carried out 80% of the work, at great public expense.
Since even after the report, the applicant can still challenge the report, the
balance of convenience weighs against granting the injunction”.

A temporary injunction should not be granted if the grant thereof disposes

of the whole case. Francis Babumba & Others vs Erusa Bunju (1992) III
KALR 120. Patel vs Lukwago (1984) HCB 44.

Injunctions can now issue against Government. AG vs Silver Spring SCCA

1/89 was decided before the 1995 constitution and its correctness or
relevancy was doubted in Rwanyarare vs AG (Court of Appeal sitting as a
constitutional court) on the ground that unjustified state protection was no
longer necessary and that all citizens must enjoy equal protection of the
39
law. In Rwanyarare’s case an injunction was issued stopping the coming
into force of several sections of the Political Parties Act until the disposal
of the petition and in Ostraco vs AG an eviction order was issued against
Government by the High court and the Court of Appeal approved of such
order.

The procedure of applying for injunctions is by Chamber summon

accompanied by an affidavit. Service of a copy of the application on the
party against whom the order is sought is mandatory and all proceedings
must be interparty.

An injunction being an equitable remedy cannot be granted to a party who

has demonstrated openly by his or her conduct that he or she is
undeserving of the equitable relief. The maxim that a person who relies on
equity must come to court with clean hands is an important maxim of
equity. The courts will always deny the applicant an interlocutory
injunction if the applicant comes to court with dirty hands.

Moody vs Cox & Anor (1916-17) ALLE R 548 applied in Anifa Kawooya
vs AG MA 46 of 2010 (CA), where the NRM disobeyed a court order with
the active participation of the Applicant- Justice Arach held in an
application for an injunction by Anifa Kawooya seeking to stop the
National Council for Higher Education from cancelling the certificate of
equivalence given to her until the disposal of her constitutional petition
that-

“The applicant is the sort of person who does not respect court
orders especially those against her. In those circumstances, the
court finds that the Applicant has not come to this court with
clean hands and does not deserve an equitable remedy from this
court. An injunction being an equitable remedy, the party
seeking it must come to court with clean hands. Anyone whose
conduct has been improper in any relevant way in some

40
 transaction who wants relief in equity will be refused the remedy
(Equitable remedies by Pry 4th edition Pages 484 – 490)”

Discharge or variation of injunctions- This is provided for in rule 4 of

order 41. In Robert Kavuma vs Hotel International SCCA 8/1990, Seaton
JSC stated that an application to set aside, vary or discharge a temporary
injunction may succeed if the applicant can show sufficient cause. It might
be considered sufficient cause if the applicant could show that-

 The injunction was granted exparte and he had no

opportunity to adduce certain matters of law or fact, which
might have influenced the court not to grant the injunction;
or
 That new facts had come to his knowledge which had been
concealed from the court by the plaintiff and/or could not
reasonably have been ascertained at the time of the hearing
 Or that owing to fresh circumstances, the injunction had
become unduly harsh or unnecessary or unworkable.

Interim order of injunction. This is now very common and is granted

pursuant to the inherent powers of the Court in section 98 of the CPA or
under rule 2(2) of the rules of the Court of Appeal or of the Supreme court.
This is granted inter parties but in exceptional cases an exparte interim
order may be granted pursuant to Order 50 rule 3A of the CPR as
amended. It is not easy to obtain dates for hearing of injunction
applications before Judges given their busy schedules. Routinely therefore
for urgent matters, interim order applications are filed and placed before
Registrars of court or before a single judge in the case of the appeal courts
for fast hearing. A commentary on the practice of interim orders appears in
the case of Hussein Badda vs Iganga District Land Board & 4 Others
HCT MA 0479/2011 where Zehurikize J held-

41
(a) Because of the abuse of interim exparte orders in the 80’s and 90s, the
CPR was amended in 1994 to provide that every application for
injunction was preceded with notice to the party affected.

(b)Interim orders are now sought under the inherent powers of court in
clear, critical and deserving situations to prevent abuse of the process
of the court.

(c) It should be noted that it is not every application for temporary

injunction that one must seek an interim order. It should be clear,
critical and deserving cases in which any delay in issuing the order
would defeat the purpose for which the application for temporary
injunction is made. Examples are cases where the suit property is in
danger of being destroyed or irretrievably alienated

(d)While the considerations upon which an order for temporary injunction

is issued would be the same as in an application for the Interim Order,
the compelling ground for the latter order is the need for urgency of the
court’s intervention on grounds already referred to. In Souna cosmetics
vs. URA HCMA 24 of 2011 justice Madrama held that in an interim
order application the preoccupation of court is to preserve the right to
be heard in the main injunction application which must show a
primafacie case.

Following Badda’s case, no application for an interim order is fixed or

heard until the main temporary injunction has a date. Justice Zehurikize
held in Badda’s case

“An application is by its nature a summon issued by Court

requiring the Respondent to attend Court on the appointed date
and time. It becomes valid only after it has been given a date,
signed and sealed. It is after the above has been done by the
Court that the application is capable of validity giving rise to
another application.”
42
The approach in the upper Courts is the same. First there is rule 2(2) of the
Court of Appeal and of Supreme Court rules (inherent powers of Court)
which provides that-

Nothing in these rules shall be taken to limit or otherwise affect

the inherent power of the Court, or the High Court, to make such
orders as may be necessary for attaining the ends of justice or to
prevent abuse of the process of any such Court….’

The grant of interim orders is meant to help parties to preserve the status
quo then to have the main issues between them determined by the full
court as per the rules. See Yakobo Sekungu vs Crensio Mukasa, Civil
Application 5 of 2013 and Guiliano Garigo vs Clausdio Casadio Civil
Application 3 of 2013.

Then there is rule 6(2) (b) on stay of proceedings, execution or grant of

injunctions.

In Tusingwire vs Attorney General CA 6/2013 and in Grace

Bamurangye Bororoza & others vs Dr. Kasirivu Atwooki & 5 others,
(2009)2EA 96, the Court held that for an injunctive relief to issue under
rule 6(2) the petition or appellant must show a prima facie case with a
probability of success, there must be proof of irreversible damage and
where there is doubt on the above, the application is decided on a
balance of convenience. In both cases, breach of constitutional rights
relating to the right to be heard in Article 28 and others were
considered irreversible (the damages arising from them is irreversible).

In Maria Nalika Mpanga & 3 others vs Arnest Sensarire & 4 others CA

35 of 1999. The Court relied heavily on rule 2(2) and 6(2) b, and held
that –

43
 “The powers of this Court are therefore wide and this Court is
not bound by Order 39 rule 4 of the CPR. In exercising our
discretion, we are guided by principles which are laid down in
England. In the case of Wilson V. Church (No.2) (1879) 12
CHLR 455 where the Court held that where an unsuccessful
party is exercising an unrestricted right to appeal, it is the duty
of the Court in ordinary cases to make such orders for staying
proceedings under the judgment appealed from that will prevent
the appeal, if successful from being nugatory. This decision was
followed in Somalia Democratic Republic vs Andop Sunderlal
Treon Civil Application No.11 of 1988. In the instant case, the
subject matter of the suit was a plot with buildings thereon.
After demolishing the disputed building which the applicant
wished to preserve, any order of the Court to effect that intention
will be nugatory. The 5th respondent cannot be allowed to
benefit from his illegal act by going ahead to develop the land
that is still the subject matter of this dispute…..We allow the
application and grant an order of injunction stopping the
respondents from further developments of the suit property, and
a stay of execution generally until the disposal of the appeal.”

(b) Arrest and attachment before Judgment-

The power to attach before Judgment must not be exercised lightly and
only upon clear proof of the mischief aimed at O.38 rule 5 namely that
the defendant was about to dispose of his property or to remove it from
the jurisdiction with intent to obstruct or delay any Decree that may be
passed against him. The attachment before Judgment should be slow
because-

(i) It is inconsistent with justice to exact punishment before the

defendant’s liability is established and

44
 (ii) The time-consuming process of court may result in the rights and
liabilities of the parties not being determined for a long time –
Kanyoko vs Nderu (1986-89) EA 237.

Before court could exercise its discretionary power by ordering

attachment of property before judgment or furnishing security, there
has to be real evidence that the defendant is about to leave the country
or to sell the property and obstruct or delay justice. Portgeiter vs
Stumbert (1967) EA 609. Where an attachment would affect the rights
of third parties, it is not to be issued. Abby Mugimu vs Bosa Bosa.

Attachment before Judgment is a right given to the Plaintiff only and a

defendant, even one with a counterclaim is not entitled to this pre-trial
remedy. Shamji vs. AA Moledina (1936-1951) ULR 24.

(c) Security for costs- Order 23

In an application for security for costs, the power to grant it is

discretionary. It must be filed at the earliest stage in the case. It was
rejected in the cases of Moor Mohamed Abdullah vs Ranchobhai J Patel
& Anor (1962) EA 447 and Premchands cases, the applications failed
because of a substantial delay in filing them.

The fact that the Plaintiff is nonresident is considered. Ebrard vs Gassier

(1885) 28CH D 232, if the plaintiff is resident but owns property in this
jurisdiction that can save him from the order of payment of costs.
However, the property owned must be substantial, fixed, permanent and
not of floating nature. The order should not become a weapon of
oppression against the Plaintiff’s action and a demonstration that the
plaintiff’s case has a likelihood of success may save the plaintiff from
such order, Peizelack KG vs Perzelack(UK) Ltd (1987)1 AIIER 1074.

Although the fact of residence is important, that alone may not be a

ground enough. Aeronave SPA AIIER 531 and Sidpra vs Dispra Civil
45
 Appeal 60 of 1995 (Oder JSC). Rather Court in exercising its powers
under Order 23 of the CPR, takes into account all the circumstances of the
particular case.

In Deepak Shah vs Manurama Limited MA 361 of 2001 arising from HCCS

361 of 2001; reported in (2003)1EA294, it was held that –

“The ancient and venerable principle of Ebrard vs Gassier must yield to

the realities of today. In East Africa as was the case for the United in
Landi Den Hartog B va Aloppa (1976) FSR 497, there can no longer be
an automatic and inflexible presumption for Court to order payment of
security for costs with regard to a plaintiff who is a resident of EA.
Accordingly, in this application I am prepared to disregard the fact of
resident as a factor. The plaintiff was a resident of Nairobi, Kenya.”

Poverty, insolvency, bankruptcy of resident plaintiffs is no ground for grant

of an order of security for costs. See Cowell vs Taylor (1885) 31 Ch D 34;
Cook vs Whelloch (1890) 24QBD 658 and Rhodes vs Dawson (1886)16QBD
548.

In the Court of Appeal and the Supreme Court an appeal is accompanied with
security for costs of UGS 200,000 and UGS 400,000 respectively. Where a
respondent believes that its costs will be more, he or she is entitled to apply
for further security for costs under rule 105(3) of Court of Appeal rules or
101(3) of the Supreme Court rules.

In Uganda Commercial Bank vs Multi-Constructors Civil Appeal 29 of 1994,

the grounds of the application for security for costs was appellants inability to
pay costs of the suit it had lost in the High Court. Platt JSC rejected the
application. His decision was influenced by Premchand’s Raichand Ltd &
Anor vs Quarry Services of East Africa Limited & others (1971) EA 172 and
Moor Mohamed Abdullah; and was based on the principle that Court’s power
to order security in respect of the payment of past costs should be sparingly
used, because the appeal process should not be unduly fettered and that the
46
appellant’s inability to pay the taxed costs had not been sufficiently proved in
that case. What was needed was failure of execution or some other steps to
show that the appellant could not pay or an admission on its part.

In Anthony Namboro vs Henry Kaala (1975) HCB HCB 315 Sekandi J held
on an application for security for costs that the main consideration to be taken
into account in an application for s.f.c are –

(a) Whether the applicant is being put to undue expenses by defending a

frivolous and vexatious suit.
(b)That he has a good defence to the suit.
(c) And that he is likely to succeed. Only after these factors have been
considered, would factors like inability to pay come into account.
(d)Mere poverty of a plaintiff is not by itself a ground for ordering
security for costs. If this were so, poor litigants would be deterred from
enforcing their legitimate rights through the legal process.

In GM Combined (U) Ltd vs AK Detergents (U) Ltd (1999)2 EA 94, an appeal

against the order of s.f.c made under Order 23 of CPR and section 404 of the
Companies Act Cap 85 Oder JSC reviewed many authorities on the subject
and concluded that the principles to be followed in an application under Order
23 and section 404 of the Companies Act cap 85 are -

(a) A major consideration is the likelihood of success of the plaintiff’s case

put differently whether the plaintiff has a reasonably good prospect of
success; or whether the plaintiff’s claim is bona fide and not a sham.

(b)If there is a strong prima facie presumption that the defendant will fail
in his defence to the action, the Court may refuse him S.F.C. It may be
a denial of justice to order a plaintiff to give S.F.C. to a defendant who
has no defence to the claim.

(c) Whether there is an admission by the defendant on the pleadings or

elsewhere that the money is due.
47
In a nutshell, held by ODER, the Court must consider the prima facie case of
both the plaintiff and the defendant. Since a trial will not have taken place at
that stage, an assessment of the merits of the respective cases of the parties
can only be based on the pleadings on affidavits filed in support or opposition
and material available to court at that stage.

An order for security for costs is not on full indemnity basis and the amount
to be deposited the discretion of Court, exercised with regard to the
circumstances of each case.

In Procon GB vs Provincial Building Co. Ltd (1980) 2 AIIER 368 and

Pearson & Another vs Naydler & Others (1977) 3 AIIER 531, it was held that
the correct principle is that any security ordered should be such as the Court
thinks fit in all the circumstances of the case. Normally, a discount will be
made to take account of the Court’s expectation of any reduction by the
taxing officer of the fees particularized, but after making that discount, the
Court should if satisfied that the defendant has made an honest estimate of his
costs and disbursements, order that amount to be incorporated in the order for
security.

Where security is sought at a very early stage in the proceedings it is relevant

to take into account the possibility that the action may be settled, perhaps
quite soon, in which case it may be appropriate to make an arbitrary discount
of the estimated probable future costs, the amount of the discount if any
depending on the court’s view of all circumstances. In GM Combmed, an
amount of 60m had been proposed but the Court gave 30m.

Further security for costs

Rule 101 of the supreme court rules provides for payment of security for
costs, unless exempted. In Noble Builders (U) Ltd vs Jaspal Singh Sandhu
(MA 15 of 2002). Interpreting rules 101 and 109 of the supreme court rules,
Justice Mulenga stated that the general principle is that an appellant should
48
provide security for costs of the appeal unless the Court exempts him due to
inability. A cross appellant would be required to deposit further security once
the appeal is withdrawn. The burden lies on the applicant to show sufficient
cause why the appellant should furnish further security for costs over and
above that fixed by the rule. What is sufficient is in the discretion of Court.
Demonstrable lack of reasonable chance of success for an appeal is sufficient
cause for the Court to order an appellant to furnish further security for costs
or for past cost. The Court should more readily grant an order for security on
appeal where the applicant has already incurred substantial costs, which
remain unpaid.

See also Reamaton Limited vs Uganda Corporation creameries, Civil

Application 7 of 2000(SC) where Tseekook JSC, following N.MAbdulla vs
Patel (1962)EA 447 held that an Applicant for security for costs bears the
burden to prove the need for additional security for costs and that such an
order is made sparingly.

The fact that a judgment can be enforced in the appellant’s country of

residence due to reciprocity is not in itself sufficient to avoid an order for
further security. Regard must be had to the ease and time likely to be taken to
enforce the judgment.

In DeBry vs Fitzgerald & Another (1990)1 AII E.R 560, it was held,
Donaldson MR –
“A defendant should be entitled to security if there is reason to believe
that in the event of his succeeding and being awarded costs of the
action, he will have real difficulty in enforcing that order. If the
difficulty would arise from the impecuniosity of the plaintiff, the Court
will of course have to take an account of the likelihood of his
succeeding in his claim, for it would be a total denial of justice that
poverty should bar him from putting forward what is prima facie a
good claim. If, on the other hand, the problem is not that the plaintiff
is impecunious but that, by reason of the way in which he orders his
affairs, including where he chooses to live and where he chooses to
49
 keep his assets, an order for costs against him is likely to be
unenforceable, or enforceable only by a significant expenditure of time
and money, the defendant should be entitled to security.”

Such application is heard by a Registrar of the High court and must be

brought early in the proceedings. Where a plaintiff fails to deposit security for
costs as ordered it is mandatory that the suit or the appeal is dismissed, and
the dismissal is automatic. Amrit Goyal vs Harichand Goyal 2009)2EA 143
and Bank of Uganda vs Banco Arabe Espanol (1997-2001) UCLR 2. Where
the suit is dismissed for such default, the reinstatement of the suit is
discretionary on proof of sufficient cause for failure to deposit security for
costs.

JUDGEMENTS AND DECREES

Under S.25 CPA it is provided that the Court after the case has been heard
shall pronounce judgment. Under O. 21 r.1, in suits where a hearing is
necessary, a Court after the case has been heard shall pronounce judgment in
open Court either at once or on some future date of which notice shall be
given to the parties.

Judgments given by Courts must be signed and dated in open Court by the
Judge who pronounces such judgments and the judgment once signed shall
not afterwards be altered or added to save as provided for in the S.99 of the
CPA or on review.

In two cases, Caroline Mboijana vs. James Mboijana SCCA 3 of 2004

decided in 2005 and Maniraguha Gashumba vs. Sam Nkundiye CACA 23 of
2005 decided in 2014, the courts came to different conclusions on whether an
unsigned or undated judgment is a valid judgment. In the Maniraguha case,
the Court of Appeal presided over by Kakuru JA (who was curiously Counsel
in the Mboijana case) was emphatic that neither oral evidence of the judicial
officer who wrote the judgment nor a certification could validate an unsigned
judgment. If the Judgment was not signed and dated, it was invalid. On the
50
other hand, the Supreme Court in Mboijana’s case accepted, on the basis of
evidence the existence of a judgment which was not signed or dated. The
Court relied on evidence of witnesses who were in court when the
handwritten judgment was read by Justice Mukanza (RIP). Justice Kakuru did
not refer to the Mboijana case while deciding Maniraguha

Judgment in defended cases must contain concise statement of the case; O.21
r.4, the point for determination, the decision thereon and reasons for such
decisions. Court under O.18 r.5 is required to state its decision on each and
every issue where issues are framed and the reason therefor unless the finding
upon any one or more issues is sufficient for the decision of the Court.

A Judgment of Court binds parties and must be obeyed. And failure to obey
court orders has consequences and courts do not look back as court orders are
violated, even by parties who believe that the Judgment is wrong or even
illegal. Where a person is aggrieved by a judgment, he or she must address
the grievance through the channels of setting aside, appeal, review or
revision. See Housing Finance Bank vs. Edward Musisi, Civil Application
158 of 2010(CA) and Amrit Goyal vs Harichand (Supra). A party in contempt
of court orders is no allowed to seek any remedy from court until he or she
has cleansed himself of the contempt.

Types of Judgments:

There are various types of judgments provided for in the CPR.

1. Judgment in default: This type of Judgment is given under O.9 r.6 of

the CPR. Where a plaintiff files a suit and serves summons onto the
opposite party(the defendant) and the defendant does not comply with
the orders in summons i.e does not file the defence within the time
prescribed in the summons and the plaintiffs claim is liquidated, where
the defendant does not file his defence then the plaintiff will be entitled
to a judgment in default. O.9 r.6 provides that where the plaint is drawn
claiming a liquidated demand and the defendant fails to file a defence,
51
 the Court may subject to Compliance with rule 5 of O.9( affidavit of
failure to file a defence) pass judgement for any sum not exceeding the
sum claimed in the plaint together with interest at a rate specified if
any.

2. Interlocutory judgment O.9 r.8: This is given where the plaintiff files a
plaint claiming pecuniary damages or for detention of goods with or
without a claim for pecuniary damages and the defendant does not file
a defence at all or within the time allowed in the summons.

The plaintiff is entitled to apply for an interlocutory judgement called

preliminary judgment determining liability only. These apply to cases
where the plaintiff claims for general damages or mesne profits. In
these situations, if a defendant does not file his defence then the
plaintiff will automatically be entitled to an interlocutory judgment and
liability will be determined and what is left will be setting down the suit
to assess damages. In Mutekanga vs. Equator Growers (1995-98)2
EA219, it was held that once an interlocutory judgment has ben entered,
the issue of liability is settled and cannot be re-opened at the stage of
formal proof or at assessment of damages.

O.50 of the CPR empowers the Registrar to enter these judgments and
in case of Magistrate’s Court then the Magistrate. Interlocutory
judgment determines liability and is not final, the final judgment occurs
after assessment of damages/value of goods or mesne profits. Kalon
Mubiru vs AG (1979) HCB.

The question is what happens when a suit is of mixed claims. It was

held in Mwatshu vs. Maro (1967) EA 42 that rule 6 and rule 8 should be
read disjunctively, meaning that the rules cannot be applied together in
one case to enter judgment for matters in a suit that fall under rule 6
and enter judgment for matters that fall under 8. In Dembe Trading
Enterprises Limited vs. Uganda Confidential HCCS 612 of 2006, an
interlocutory judgment entered by the Registrar on a mixed claim under
52
 rule 8 was set aside and substituted with a judgment under rule 6.
Where the suit is of mixed claims, the Plaintiff could perhaps utilize
rule 10 which provides that-

“ In all suits not by the rules of this Order otherwise specifically

provided for, in case the party does not file a defence on or
before the day fixed therein and upon compliance with rule 5 of
this Order, the suit may proceed as if that party had filed a
defence”.

3. Consent judgement: Consent judgment is given with the consent of

parties where they agree they may proceed to file such consent in Court
and such consent (terms) will constitute the judgment. The consent
judgment is recorded by the Registrar of the Court pursuant to Order 50
rule 2 of the CPR and may be recorded before a judge as well. The
consent judgement may be oral. i.e parties read out the terms of the
consent before a judge which is recorded, or parties sign a consent
judgment which the cort endorses. The law is that before recording a
settlement, a Judge must be satisfied that the parties have agreed. In
order to be satisfied, the Judge has to listen to what the parties say.
When a party says that he has now agreed, the Judge takes the latter
view that there is a change of mind, and the party has agreed. Peter
Mulira vs. Mitchell Cotts (1997-2000) UCLR 118.

4. Judgment on admissions O.12 r.6: This is where a party, defendant to

the suit may agree by pleading or otherwise to a claim or to a part
thereof. The Plaintiff is entitled to apply to Court for a judgment on
admission. Such judgment would be final. It is a well settled principle
that an admission has to be clear, unambiguous and must admit the
claim of the plaintiff. It excludes admissions by inference. In Juliet
Kalema vs. William Kalema CACA 95 of 2003, Byamugisha JA held
that before a court can act under the rule to enter judgment on
admissions, the admission of the claim must be clear and unambiguous.
In Makerere University vs Rajab Kagoro CACA78 of 2006, the
53
 Respondent sued for outstanding balance of pension of 12m. The
Appellant denied owing 12m but stated that pension is paid 50%
lumpsum on retirement and 50% in monthly instalments for 15 years.
At the hearing, Counsel for the University stated, “we admit the claim
but say it should be settled overtime” The Judge entered judgement for
the admitted sum. On appeal the issue was whether there had been an
admission. It was held that there were no circumstances to term the
case as one of admission when the period of payment was the real issue
for decision.

The power given to court under the rule is discretionary and must be
exercised judiciously and circumspectly. Thus, where a case involves
complicated questions which cannot be disposed of conveniently the
court should decline to exercise its discretion against a party who is
seeking judgment on admission. See Choitram vs.Nazari (1976-85) EA
53 and Brian Kaggwa vs Peter Mulamira CACA 26 of 2009. See also
the case of Nomayi vs Hatiniy (2003) EA 60 on what amounts to an
admission, whether a sum admitted but not sued for can result into a
judgment on admission

5. Summary judgment O.37: Flowing from summary proceedings, i.e.

where the defendant does not apply to defend or having done so fails to
obtain the leave of the court to defend the suit, the plaintiff will be
entitled to a summary judgment under order 37 rules 3(2) and rule 5 of
the CPR. The summary Judgment under rule 3(2) is entered upon
application by letter by the Registrar of the Court pursuant to order 50
of the CPR.

6. Exparte judgment under O.9 r.20: Plaintiff is entitled to proceed

exparte where the defendant does not appear at the hearing of the suit
or where he appears but has not filed a defence. This Judgment is
therefore given by court following a hearing from the plaintiff without
the participation of the defendant. Under O.9 r.20, a party would

54
 proceed by way of formal proof of the claim, the defendant having
excluded himself from hearing either by –

 Not filing a defence or.

 He may have actually filed but does not come to Court on the day
when
the suit is set for hearing or if he comes to Court, he may fail to
proceed
with the suit.

Before passing an exparte judgment, court should ensure that the

evidence given supports the orders prayed for. The evidence led must
be such that without contradiction by the defendant, it is sufficient to
prove the claim. It is not necessary that the facts alleged should be
queried but the facts alleged must be full and accurate enough to
support the plaint. What cannot be done is that remedies are granted
which are not supported by the plaint except if there was an amendment
in which case the plaint must be served afresh. Departed Asian
Property Custodian Board vs Issa Bukenya SCCA 26 of 1992.

7. Ordinary Judgment: The rules of natural justice require that each party
to a suit must be heard, whereby plaintiff files his plaint and serve on to
defendant together with summon which allow him to defend the suit if
he files his defence in time as summons requires plaintiff will be
accorded opportunity to call evidence; he then closes the case, Court
affords the defendant to present his defence to the claim by calling
defence witnesses. He then closes his case. Having heard the parties
Court will proceed to make a decision by giving judgment. Such
Judgment is called an ordinary Judgment.

The Decree

The Decree follows a Judgment as provided for in section 25. A decree is

defined in section 2 of the CPA to mean the formal expression of an
55
adjudication which so far as regards the Court expressing it conclusively
determines the rights of parties with regard to all or any of the matters in
controversy and may be either preliminary or final. A decree is still in law a
Decree even if it purports to be an order and an adjudication is either a
Decree or an order and cannot be both or be split into component parts. It is
the nature of the question, not the nature of the answer which decides whether
a Decree or an order result. See Tzamburakis and Lamrove vs. Rodoussaki
(1956)23EA 247 cited in Jivandas Goculandas vs Attorney General (1957)
EA718. In Hwan Sung Limited vs M&D Timber Merchants and Transporters
Limited Civil Appeal 2 of 20218(SC), it was held that if an order has the
characteristic and consequence of bringing the whole suit to finality, it is a
Decree within the meaning of S.2 of the CPA. In South British Insurance
company limited vs Mohamed Ali Taibji Limited (1973) EA 210, it was held
that-
“if a decision conclusively determines the rights of the parties, then
it would be a Decree, otherwise it would be an order. If for instance
portions of a plaint are struck out as being frivolous or vexatious or
if a suit is stayed, such a decision would be an order whereas if a
suit is dismissed with costs that would be a Decree”

The decree obtained under O. 21 r.6 shall agree with the judgment. A decree
which is not in conformity with the judgment is liable to be set aside for a
party to the suit cannot suffer because of the errors committed by the court.
Highway Furniture Mart vs. PS (2006) 2 EA 95. The Decree shall also
contain the number of the suit, names and description of the parties, the
particulars of the plaint and shall specify clearly the relief granted.

There is preliminary decree where further steps are necessary for example
under O.9 r.8 where the suit is set down for assessment of damages, after
which the party obtains a final decree. There can also be more than one
preliminary decree in a suit. The determination whether a court has
jurisdiction or not results into a preliminary Decree. Mandavia vs CIT (1958)
EA410. Similarly, a preliminary Decree arises on determination of liability
where the suit is then adjourned for assessment of damages. William James
56
Baker vs Rush (1964) EA 602 and GR Mandavia vs Rattan Singh (1964) EA
118.

O.18 r.7(2); it shall be the duty of the party who is successful in a suit in the
High Court to prepare without delay a draft decree and submit it for the
approval of the other party who shall approve it with or without amendment
or reject it without undue delay. In Asadi vs. Ola (1985) HCB; Court held
that the general duty of extracting a decree is imposed upon a successful party
because it is presumed that he will be anxious to execute the judgment. If the
draft is approved by the parties it shall be submitted to the Registrar who if is
satisfied that it is drawn up according to judgment shall sign and seal the
decree accordingly, if all the parties and Registrar do not agree upon the
terms of the decree within such time as the Registrar shall fix, it shall be
settled by the Judge who settled the case and the parties entitled to be heard
thereon.

Even unsuccessful parties can extract a decree, for example when they want
to appeal. See Eastern Province Bus Co. (1970) U.L.R. 87; it was found in
this case that under O.21 r.7 CPR, it is the duty of a successful party to have
in the first instance prepare a draft decree but if he does not do so and the
other party desires to appeal he will take steps to have the decree extracted.
The applicant appealed against judgment and decree on issues both of
liability and quantum of damages. By consent of the parties Court first
decided the question of liability and quantum left to be settled by parties. No
decree was extracted and several months later, the parties having failed to
settle on quantum, the suit was set down for hearing and a sum of money was
awarded. Counsel for defendant appealed against the judgment on both
issues. Court found that there were two judgments in the case. The
preliminary in which the issue of liability was disposed off and upon which
by reason of S.25 of the CPA, a decree should have been extracted and the
final one after disposing of the question of damages. See also G.R Mandavia
vs Rattan Singh (1964) EA 118.

Setting aside Judgments and Decrees

57
1. Judgments entered pursuant to Order 9 rules 6,7,8 and 10 may be set
aside pursuant to rule 12 which provide that.

“Where judgment has been passed pursuant to any of the preceding

rules of this order, or where judgment has been entered by the
Registrar in cases under Order 50 of these Rules, the Court may set
aside or vary the judgment upon such terms as may be just”

The scope of this rule has been considered in many cases and is
sometimes compared with rule 27 (formerly rule 24), in which case, it
has been held or emphasized that under rule 12, the Court’s discretion
is wide unlike rule 27, where the discretion is based on the two grounds
set in that rule. Nicholas Rossous vs. GullamHussein Habib Virani,
Civil Appeal No.9/1993 and Captain Phillip Ongom vs. Catherine
Nyero Owota SCCA 14 of 2001. The Court in the Phillip Ongom case
held-

“There is between the two rules, a significant distinction which

unfortunately is all too often overlooked. it is that the court has
much more unfettered discretion under rule 12 than under rule
27, with the result that the considerations under one are not the
same as those applicable under the other”

The further distinction in the circumstances rule 12 as against rule 27

may be applied is eminently made clear in the case of Wameru vs
Ndiga (1982-88)1KAR 210. In summary that distinction is that rule 12
applies to applications in which the order/judgment sought to be set
aside or varied was passed by reason of the Defendant failure to file a
defence while rule 24 comes into play where the order or judgment
challenged arose out of Defendants physical failure to appear in court.

The discretion under rule 12 to set aside is intended to be exercised to

avoid injustice or hardship resulting from accident, inadvertence, or
58
 excusable mistake or errors, but is not designed to assist a person who
has deliberately sought, whether by evasion or otherwise, to abstract or
delay the cause of justice. Shah vs. Mbogo and Anor. (1967) EA 116 at
123 BC, Patel vs. EA Cargo Handling Services Limited (1975) EA. The
Court must determine whether, in light of all the facts and
circumstances, both prior and subsequent, it would be just and
reasonable to set aside or vary the judgment, if necessary, upon terms
to be imposed. Jesse Kimani vs McConnell & Anor (1966) EA 547 at
555F. To deny a person a hearing should always be the last resort of the
Court. Sebei District Administrator vs Gasyali (1968) EA 30, Remco
Limited vs. Mistry Jadua Parbat & Co. Limited & Anor (2002) 1 EA
233 where a draft defence was tendered together with an application to
set aside a default judgment, the Court hearing the application was
obliged to consider if it raised a reasonable defence on the merits, the
Court could set the expert judgment aside. Tree Shade Motors Limited
vs. DT Dobie and Anor (1995 – 1998) 1 EA 324. As a matter of fact,
good defence should be demonstrated by an Applicant who is seeking
to set aside a default judgment and not merely alleged. Bariywo vs.
Bach (1986-89) EA 27 and Magunga General Stores vs. Pepco
Distributors Limited (1986-89) EA 334. Attaching a draft defence to the
affidavit in support of the application should suffice for the purpose.

2. Setting aside Exparte Judgments. It is now firmly established that

exparte judgments (Judgments preceded by a hearing of evidence in the
absence of the defendant who was served but not appear) are set aside
pursuant to Order 9 rule 27 of the CPR. The Applicant must show that
summons had not been duly served or that he or she was prevented by
sufficient cause from physically appearing when the case came on for
hearing. Nicholas Roussos vs. Gulam Hussein Virani SCCA 9 of 1993
and Captain Phillip Ongom vs Catherine Nyero Owota (Supra). In the
Phillip Ongom case(supra) the Court held that it was evident from rule
27 that once the defendant satisfies the court on either ground, then the
court is under duty to grant the application and make the order setting

59
 aside the exparte decree, subject to any conditions the court may deem
fit.

What constitutes “sufficient cause” in rule 27 and what would be “fit

conditions” for the court to impose when granting an order of setting
aside depends on the circumstances of each case. A mistake of counsel
even when it is negligent-Shabin Din vs Ram Parkash
(1955)22EACA48 and Captain Phillip Ongoms case, ignorance of
procedure by unrepresented litigants -Zirabamuzaale vs. Correct
(1962) EA694, Otanga vs Nabunjo(1965)EA384. illness by a party
-Patel vs Star Mineral water and Ice Factory (1961) EA 454, have all
been accepted as constituting sufficient cause, but a failure to instruct
an Advocate was rejected as not amounting to sufficient cause -Mitha
vs Ladak (1960) EA 1054. An order for payment of the throw away
costs or even costs of the entire proceedings prior to being heard is a
legitimate condition to make along with the order setting aside the
exparte judgment.

In considering whether to set aside a judgment under rule 27, it is not

open to the court to consider the merits of the case. Mitha vs. Ladak
(supra).

It has been stated that the standard of proof under rule 12 is much lower
because there is unfettered discretion compared to the standard of proof
under rule 27 which is higher because there is limited discretion to
grant the application. Accordingly, filing an application under one
instead of another will not be a mere technicality curable by
amendment under article 26 but will be fatal. See Kaweesi Agro
Projects vs Greenland Bank Limited (MA.68 of 2003)

3. Setting aside Consent Judgment. It is settled law that a consent

judgment is treated as a fresh agreement between the parties to the suit.
Thus, consent judgment can only be avoided or set aside on any ground
on which ordinary contracts are avoided. This was stated by the East
60
African Court of Appeal in the case of Hirani vs Kassam (1952)19
EACA 131 in which it adopted the following passage from Seton on
Judgments and Orders 7th Edn Vol 1, p124.

“Prima facie, any order made in the presence and with the
consent of counsel is binding on all the parties to the
proceedings or action and on those claiming under them. ….and
cannot be varied or discharged unless obtained by fraud or
collusion or by an agreement contrary to the policy of the
court ..or if consent was given without sufficient material facts,
or in misapprehension or in ignorance of material facts or in
general for a reason which would enable the Court to set aside
an agreement”

Subsequently that same Court reiterated the principle in Brooke Bond

and Liebeg vs Mallya (1975) EA 266 and the Supreme court of Uganda
followed it in Mohamed Allibhai vs. WE Bukenya and Another Civil
Appeal 56 of 1996.

The Consent judgment is set aside pursuant to the inherent powers of

Court under section 98 of the CPA or the inherent powers of the Court
of Appeal or Supreme Court. Livingstone Sewanyana vs.Martin Aliker
Civil Appeal 4 of 1991(SC).

Consent judgment are also set aside pursuant to order 9 rule 12. That
rule has been held to confer wide discretion to court to set aside
judgments to which it applies. However, the wide discretion under that
rule does not apply if the judgment sought to be set aside is a consent
judgment. This is because it is settled law that a consent judgment is
only interfered with in limited circumstances. See Attorney General vs
James Mark Kamoga and Another (supra) clarifying that Ladak
Abdullah Mohammed Hussein vs Griffith Insingoma Kakiza, Civil
Appeal 8 of 1995(SC) was wrongly decided to that extent.

61
 In Neale vs Gordon Lennox (1902) AC 465 The plaintiff in an action
for defamation of character had authorized her counsel to consent to a
reference on condition that all imputations on her character were
publicly disclaimed in Court. Her counsel did not make the limitations
of his authority to counsel for the defendant. Both agreed to refer the
action without any disclaimer of imputation. It was held that the
counsel had exceeded authority and the reference was set aside.

Applications to set aside or review consent judgements must be filed

early. In Muyodi vs Industrial and Commercial Development (2006)
EA 243, Eight months passed before filing application to set aside the
consent judgment. Eight months delay was held unreasonable. In
Combined Services vs Attorney General HCCS 200 of 2009, application
for review of consent judgment based on new facts discovered several
years earlier was held to be late.

Post Judgment corrective remedies- Inherent Powers and the slip rule

Courts make errors advertently or inadvertently and where they so do, the law
and rules regulating the conduct of civil litigation provide mechanisms for
correction of such errors. The operation of the slip rule and the issuance of
slip orders is on the basis that courts of law are manned by human beings and
now and then through human failure, an error or an omission can happen,
through inadvertency in a judgment being made by court. The slip rule and
the slip orders therefore deal with clerical or arithmetical mistakes arising
from accidental slips and or omissions or where the order of the court does
not correspond with the Judgment or ruling of the court it purports to embody
. slip orders are made by courts for achieving the ends of justice by court that
passed the judgment self-correcting itself in respect of the committed clerical
or arithmetic mistake or omission. Courts correct their own decisions in cases
of error or mistakes under section 99 of the CPA. Section 99 of the CPA
provides that clerical or arithmetical mistakes arising therein from any
accidental slip or omission may at any stage be corrected by the Court either
on its own motion or on application of any of the parties.
62
Under rules 36 and rule 35(1) of the Court of Appeal and the Supreme Court
rules, both courts can correct clerical or arithmetical mistakes in any
judgment of Court or any error arising therein from an accidental slip or
omission at any time whether before or after judgment has been embodied in
an order and this can be at the instance of the Court on its own motion or on
application of any interested party so as to give effect to what was the
intention of Court when judgment was given (Court sitting in its own
judgment).

The jurisdiction of the Court to recall its judgment and correct or otherwise
alter the judgment or set it aside is circumscribed and in resolving such
applications, the court has to balance two principles namely, the principle of
“finality of litigation” and the “justice principle”.

In Lakhamshini Brothers Ltd vs Raja and sons (1966) EA 313, It was stated
that

“There is a principle which is of great importance in the administration of

justice and that principle is this: it is in the interest of all persons that there
should be an end to litigation”

The finality principle is on the basis of public interest and public policy. it is
premised on the need for stability and consistency in law. Contrasted with the
above principle of finality of litigation is the justice principle that provides for
the court of law to carry out in the exercise of judicial powers, limited review
of review of its judgment where circumstances so warrant based on the
rationale that the object of litigation is to do justice to the parties and to boost
the confidence of the public in the justice system . If justice can only be
achieved through limited review by the court of its own judgment, under
strictly circumscribed powers, then be it.

The jurisdiction to recall a judgment and review it is not limited to the slip
rule. It may be exercised under the inherent power of court found in rule 2(2)
63
of the rules of Court. In order for this rule to apply, the order sought must be
for achieving the ends of justice or to avoid the abuse of the process of Court.
Pursuant to the above two purposes, the court can set aside its judgment that
has been proved null and void. Setting aside judgments that have been proved
null and void is just an example of what the Court can do under rule 2(2) to
achieve the ends of justice or t0 avoid the abuse of court process, although the
cases now appear to mix up the issue by citing setting aside judgments that
have been proved null and void as one of the purposes of rule 2(2). See Isaya
Kalya and others vs Moses Macekenyu Ikagobya, Civil Application 28 of
2015. Be that as it may, following this rule, the Court in Livingstone
Sewanyana vs. Martin Aliker Civil Application 4 of 1991 was prepared to
recall and set aside its judgment if fraud had been proved and in NPART vs.
General Parts, Civil Application 8 of 2000, the Court appeared prepared to
avoid the strict application of rule 29(barring admission of additional
evidence on a second appeal) in order to do justice but came to the conclusion
that this was not a case of admission of additional evidence. Several years
later in Afric Cooperative Society vs Attorney General Civil Application 6 of
2012 and in Commissioner Land Registration vs. Emmanuel Lukwajju, Civil
Application 12 of 2016 the supreme court invoked rule 2(2) to allow
additional evidence on a second appeal. In Sophatia Beth vs Nangobi Jane,
Civil Application 42 of 2019, the Supreme court invoked rule 2(2) and set
aside its judgment in Civil Appeal 6 of 2018 because it had been written by a
judge who had not been part of the Coram that heard the Appeal. The Court
reasoned that the Applicant had been denied the right to be heard. In
Elizabeth Nalumansi Wamala vs. Joly Kasande Civil Application 29 of 2017,
the Supreme Court recalled and altered its judgment to avoid an injustice
whereby Mrs. Wamala had been decreed as the lawful wife of the late
Wamala but had been denied an interest in his Estate. The Court altered the
judgment to provide that Mrs. Wamala had an interest in her late husband’s
estate.

Returning to the slip rule, In Libyan Arab Uganda Bank vs. Adam SCCA
42/92: Court found that it had inherent jurisdiction to recall its judgment and

64
perfect it to give effect to its manifest intention under the slip rule which is
embodied in the provisions of rule 35(1) of the Supreme Court Rules.

The limitation of the ‘slip rule’ is clear; it does not allow a Court to sit in
judgment on its previous decision. In Raninga vs. Manskulal Jivraj (1965)
E.A.700 Court observed that a Court will of course only apply the slip rule
where it is fully satisfied that it is giving effect to the intention of the Court at
a time when judgment was given or in the case of the matter which was
overlooked; where it is satisfied beyond doubt as to the order which it would
have made had the matter been brought to its attention. The slip rule has to be
applied with extreme caution – Bentley vs O Sullivan (1962) A.E.R 54. It
should not be used as an avenue for court to correct its own misunderstanding
of the law, otherwise to do so would open a very wide door to chaos. Per
Arach JSC in Kwizera Eddie vs Attorney General SCCA 1 of 2008. The slip
rule cannot be used to correct errors of substance or attempt to add or detract
from the original order made. See Ahmed Kawooya Kaugu vs. Bangu Aggrey
Fred CACA 3 of 2007. In this case it was held that in order for court to invoke
its powers under rule 36 of the Court of Appeal Rules,

“the error or omission must be an error in expressing the manifest

intention of the court. Court cannot correct a mistake of its own in law or
otherwise even where apparent on the face of the record”

The scope of the rule has been discussed in countless number of cases to
mention a few here; Lakhamshi Brothers vs Raja and sons 1966) EA 313,
Fangmin vs Dr Kaijuka Civil Application 6 of 2009(SC), UDB vs Oil Seeds
Limited Civil Application 15 of 1997(SC), Orient Bank vs. Fredrick Zaabwe,
NPART vs General Parts Limited Civil Application 8 of 2000 and Livingstone
Sewanyana vs. Martin Aliker, Salim Jamal vs Uganda Oxygen Limited, Civil
Application 13 of 1997, among others.

In NPART vs. General Parts Uganda Limited (supra), it was held that the
expression “in the case of a matter which was overlooked” in Raninga’s case
means a matter which the court could have lawfully looked at or acted upon
65
when deciding the appeal. It must be a matter which was available, or implicit
in the record of appeal or a matter which is necessarily and clearly
consequential upon the decision of the Court of Appeal. It cannot be a matter
which was not in evidence, or which does not follow from findings of appeal.

In Zaituna Kawuma vs George Mwa Lurum, Civil Application 3 of 1992(SC),

the application was for an order for refund of purchase price that was paid
under a sale agreement which was held on appeal to be null and void. The
Supreme Court held-

“we are satisfied that had the matter of refund of the purchase price had
been brought to our attention, an order would have been made when
judgment was given on appeal. We agree with counsel for the
defendant/applicant that it follows logically from our findings …that the
contract was null and void that an order should be made for repayment of
the purchase price. The respondent cannot have his house back…and at
the same time retain and enjoy the purchase price paid by the applicant”

It is quite clear that at the time of the judgment on appeal in that case, the
court was seized of the circumstances which rendered an order for refund
inevitable, namely undisputed evidence that the purchase price had been paid,
and the holding that the contract under which the payment was made was null
and void. It is also clear that the Court had omitted to make the order for
refund only because it did not advert to the consequences of those
circumstances.

In the NPART case (Supra), the validity of a mortgage was in issue. The
Supreme Court invalidated the mortgage on the ground that it had not been
sealed as required. In an application for correction of the Judgment, counsel
for NPART submitted an original copy of the mortgage to the Court which
bore the seal impression and urged that the finding that the mortgage did not
have a seal was based on a photostat copy which could not show whether the
seal existed or not. The Court rejected the application on a number of reasons.
It held that-
66
 “the alleged mistake sought to be corrected did not arise from an
accidental slip or omission. It is not in respect of a matter or matters
overlooked by this court or even by counsel at the appeal stage. The
finding and holding complained of were mainly based on a document
which was produced in evidence as Exh9 and which was part of the
record of appeal. One of the deficiencies found on it, was that it was not
sealed with the common seal of General parts. That finding, so far as it
relates to Pexh9 remains correct. Pexh9 does not bear the impression of
the said seal nor any written indication that it was sealed. There is
therefore no error to be corrected in that regard……Needless to say that
that the remedy cannot be found in this court applying the slip rule to
correct a mistake that may have occurred during the trial… “

In Salim Jamil and other vs. Uganda Oxygen Limited, the Supreme court
ordered for a retrial of the suit in the High court but at the same time ordered
for payment of costs in the High court. On an application under the slip rule,

“the order of this court granting costs in the lower court was therefore an
error arising from an accidental slip and did not give effect to the
intention of the Court. The proper order should have been that the costs of
the suit in the lower court abide the outcome of the rehearing”

Review

A Court can sit in its own judgment on review. Review is provided for under
S.82 of the CPA. It provides as follows

“Any person considering himself aggrieved –

a) By a decree or order from which an appeal is allowed by this Act

but from which no appeal has been preferred.

67
 b) By a decree or order from which no appeal is allowed by this Act
may apply for a review of the judgment to the Court which passed
the decree or order and the Court may make such order thereon as it
thinks fit.”

The powers of review are limited only to the High Court, Magistrate’s Grade
I or Chief Magistrate’s Court (those Courts which apply the CPA/R). There is
controversy whether section 82 of the Act can be relied upon in the appellate
courts (Court of Appeal or Supreme Court) to invoke the review jurisdiction.
It was invoked without protest in Iyamulemye vs Attorney General Civil
Appeal 4 of 2013 and this appears supported by the decision in Beatrice
Kobusingye vs Fiona Nyakana and Another Civil Appeal 5 of 2004(SC) later
confirmed in the case of Katayira Francis vs Rogers Bosco Bugembe, Civil
Reference 9 of 2017 to the effect that the Civil Procedure Act applies in
appropriate cases to the Supreme Court and to the Court of Appeal.

The application of the remedy of review is provided for under O.46(1) of the
CPR – Any person considering himself or herself aggrieved-

a) by a decree or order from which an appeal is allowed but from

which no appeal has been preferred or;

b) by a decree or order from which no appeal is allowed and who from

the discovery of new and important matters of evidence which after
the exercise of due diligence was not within his knowledge or could
not be produced by him at the time when the decree was passed or
order made or on account of some mistake or error apparent on the
face of the record or for any other sufficient reason, desires to
obtain a review of the decree passed or order made against him may
apply for a review of judgment to the Court which passed the
decree or gave the order.

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Reviews are open, brought at any time as long as the Applicant is not guilty
of any dilatory conduct. It may not be Court’s fault; it may be new evidence
so important but was not available at the time of hearing the case.

The purpose of review is not to provide an avenue or short cut method by

which an unsuccessful litigant can seek to re-argue their case on the basis that
their views are now different from what the court in the first instance decided.
In Nyamugo Advocates vs. Moses Koga CACA 322 of 2000(K), it was held
that if a view held by the Court in the original record is a possible one it
cannot be an error apparent on the face of the record even though another
view was also possible” .

The process of review must not be used by Courts of law to open doors to all
and sundry to challenge the correctness of the decision made by courts on the
basis of arguments thought of long after the decision was delivered. A judge
on final judgment in a case becomes functus officio and it becomes highly
improper and irregular for the same judge to sit on appeal involving his
judgment by reconsidering the evidence on record, re-evaluating it and
coming to different conclusions. Shah vs Dhavanchi(1981)KLR and Appollo
Wasswa Basudde and others vs . Nsabwa Ham Civil Appeal 288 of
2016(CA)

In Yusuf vs. Nochlaki (1971) E.A. 104; the respondent defaulted in the
payment of two instalments of the judgment debt, as a result of which the
order attaching his salary was issued. He applied for a review of the order on
the ground that it was harsh and unjust. The application was granted by the
Chief Magistrate and the applicant appealed and submitted that the
respondent was not a person aggrieved by the order. The appellant submitted
that the respondent was not an aggrieved party as he had consented to the
order for payment by instalments and the application did not establish any of
the grounds provided in the then O.42 r.1(1). The Court found that a ‘person
aggrieved’ means one who has suffered a legal grievance and Court found
that the respondent was an aggrieved person and therefore entitled for a
review because the respondent had consented to the order for instalments
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payable by him but not to the attachment for his salary. The application was
based on the ground of sufficient reason and Court observed that it is obvious
that civil procedure rules contemplate a procedure by way of review by the
Court which has already given judgment as being different from that by way
of appeal to the Court of Appeal. That the three cases in which review is
permitted are those of new material overlooked by excusable misfortune,
mistake or error apparent on the face of the record or any other sufficient
reason and the expression sufficient reason would naturally be read as
meaning sufficiency analogous to the two or any specified, i.e. excusable,
failure to bring to the notice of Court new and important matters or error on
the face of the record. The Court found that the respondent had not any
sufficient reason and there was no ground for review.

In the matter of Nakivubo Chemists Uganda Limited [1979] HCB 12; a

minority shareholder petitioned Court that he had been oppressed by majority
shareholders and several orders were made by Court among which was one
for the audit of the company’s books. An auditor was appointed but he could
not audit because the company’s books had been destroyed.

The petitioner applied for review under SS.83, 10, O.42, r.1, 2. The petitioner
played that the Court assess his stake in the company based on evidence
already on record and that which he may produce. The application for review
was opposed on the ground that the Applicant was not an aggrieved party.
Court found that the expression “any person aggrieved” within the meaning
of S.83 and O.42 r.1 means a person who has suffered a legal grievance.

The application for review must be made without unreasonable delay. In

Muyodi vs. Industrial Commercial Development Corporation (2006)1 EA
243, 8 months was considered to be unreasonable. In Dr. Ahmed Kisule vs.
Greenland Bank Civil Appeal 9 of 2016, 1 year and 11months was considered
unreasonable.

Application for review must be made to the same Judge who made the
decision under review. In Ngarambe David vs Kakuze Betarice CACA 40 of
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2011, the court considered the meaning of section 82 of the CPA and Order
46 of the CPR specifically rules 2 and 4 and held that the correct
interpretation of those rules is that an application for review of a judgment or
decree of a court is only made to the same judge who heard the matter in the
first instance if the ground of review application is based on any other ground
apart from discovery of a new matter or evidence, a clerical mistake and an
error apparent on the face of the record.

However, the words “same judge” in order 46 rules 2 &4 does not mean a
Judge or Magistrate in their individual capacity but by virtue of the
jurisdiction or level of court that they preside over. In Attorney General and
Another vs. James Mark Kamoga and Another SCCA 8 of 2004, it was held
that rule 6 of Order 50 does not create a subordinate court to the High court.
It rather underscores the special status of the registrar as an official of the
High court to whom some limited functions of that court are delegated.
Accordingly, it was held that a Registrar of the High court has no review
powers. He cannot review his decision because the review jurisdiction is not
one of the powers delegated to him under order 50 or under Practice
Direction 1 of 2002.

It is not correct that only a party to a suit can apply for review of a Judgment.
O46 rule 1 provides that any person considering himself aggrieved may apply
for review. Adonia Mutekanga (1970) EA 429 interpreted that such a person
can be a third party who was not part of the suit but who has an interest in the
subject matter of the suit. However, a third party applying for review must
demonstrate that he or she has suffered a legal grievance. See Mohamed
Alibhai vs. Bukenya SCCA 56 of 1996 and Hussein vs Kakiiza and another
(1995-98)2 EA 135.

“Error or mistake apparent on the face of the record” was explained in the
case of Kanyabwera vs. Tumwebaze (2005) EA 87 thus-

“In order that error may be a ground for review, it must be one apparent on
the face of the record. ie an evident error which does not require any
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extraneous matter to show its incorrectness. It must be an error so manifest
ad clear that no Court would permit such an error to remain on record. The
error may be one of fact, but it is not limited to matters of fact and include
error of law”

The review jurisdiction in Order 46 is wide and applies to all judgments

including consent judgments. See Attorney General vs Mark Kamoga. A
party to a consent judgment is not precluded from seeking to review the same
judgment if the grounds for review exist.

Where a party pursues review or revision of a Decree or order from which an

appeal is allowed rather than appeal, he or she may be treated as having
abandoned the right of appeal. In Justice Anup Singh Choudry vs. Shikh
Association of Uganda and others MA 41 of 2020(CA) Kasule Ag JA held-

“This court holds that on the facts before it, the applicant having had the
option of either pursuing an appeal or a review of the High court order of
18.09.2018, he chose to pursue a review. Once he opted to pursue a
review, then he by choice, he gave up the right to pursue an appeal”

Dr Rubinga vs. Yakobo Kato Civil Appeal 35 of 1992 (SC) was case where a
party had the option of either pursuing an appeal by applying for leave to
appeal or to pursue a revision of the decision made by the High court. The
Party chose to pursue a revision. Later the same party attempted to pursue an
appeal. Wambuzi CJ held-

“I also agree that in this case the appellant had a right of appeal but quite
clearly preferred revision proceedings from which he did not appeal. In these
circumstances, it would be very unlikely that a court would extend time to
institute an appeal the right to which the party had by conduct abandoned”

In the same Judgment, Platt JSC said-

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“it follows that by taking the revision proceedings on 6 th January 1989, the
applicant had to state that no appeal had been preferred, even though one
was allowed. It is clear therefore that revision proceedings had been
preferred to an appeal. It further follows that an unsuccessful applicant for
revision cannot then allege that the period of limitation for instituting an
appeal is still running”

Compare the views expressed in the above Ugandan cases with the Kenyan
case of Kenya Oil Company Limited vs. Mohammed and Another 2003)2 EA
5243, where it was held that an appellant’s right of appeal is not defeated by
the pursuit of the review application to the end.

Revisionary powers of the High court.

S.83 of the CPA. The High Court may call for the record of any case which
has been determined under this Act by any Magistrate Court and if that Court
appears to have-

a) exercised jurisdiction not vested in it in law.

b) failed to exercise jurisdiction so vested.

c) acted in the exercise of its jurisdiction illegally or with material

irregularity
or injustice.

The High Court may revise the said case and makes such order therein as it
thinks fit provided that no such power of revision shall be exercised.

i) Unless the Parties shall be given the opportunity of being heard.

ii)Where from the lapse of time or other cause the exercise of such power
would involve serious hardship to any person.

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In Eriazali Bameka vs.Dodovico Nviri [1973]1 ULR 134: The file in this case
was brought for revision upon a complaint made by the Plaintiff to the Chief
Justice concerning the manner in which the trial Magistrate is alleged to have
handled the litigation. Court found that powers of revision are provided under
S.84 of CPA, the Court found that the High Court may call for the record as
any cause determined under CPA and if such Court appears to have exercised
the jurisdiction not vested with it in law or fail to exercise a jurisdiction so
vested or acted in the exercise of its jurisdiction illegally or with material
irregularity or injustice. The High Court may revise the said case and may
make such order therein as it thinks fit provided both parties shall be given an
opportunity to be heard. Court observed that the mere fact that the Court has
reached a wrong decision even on a point of law is not sufficient to constitute
an illegality or irregularity or injustice that an erroneous decision in itself is
not a ground for revision. The difference being, a Judge omitting to do
something which a statute says shall be done and a Judge doing something
which a statute says shall not be done. The former being an irregularity and
the latter being an illegality. Irregularity means omitting a procedural error
which is lesser than an illegality. Before Court can interfere, where an
irregularity is alleged it must be shown to be material which is an irregularity
that prejudice the merits of the case.

Woodroffe and Ameerali’s commentary on Civil Procedure 2 nd Edn at 477, it

is stated-

“A distinction has been drawn between cases in which a judge omits to do

something which a statute enacts shall be done and cases in which a
judge does something which a statute says shall not be done. In the
former case, the omission may not amount to more than an irregularity in
procedure. In the latter, the doing of the prohibited thing is ultravires and
illegal, and without jurisdiction, using the latter term in the broadest
sense. It has been said also that material “irregularity” implies only the
committing of a error of procedure, whilst acting “illegally” means
something more. One thing is clear, namely that an irregularity is
something less than n illegality and before the court will interfere it must
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 be shown to be material- that is an irregularity which has prejudicially
affected the merits of the case”

This was quoted with approval in Bameka’s case. In Matemba vs. Yamulinga
(1968) EA 463, it was held that the section applies to jurisdiction alone, the
irregular exercise or non-exercise of it or the illegal assumption of it. The
section is not directed against conclusions of law or fact in which the question
of jurisdiction is not involved. It is settled that where a court has jurisdiction
to determine a question and it determines that question, it cannot be said that
it has acted illegally or with material irregularity because it has come to an
erroneous decision on a question of fact or even law.

The revision powers or jurisdiction is only confined to matters determined by

the Magistrates Court and does not apply to proceedings originating from the
High court for example to decisions made by the Registrar of the High court.
In Ddegya Trading stores Uganda Limited vs. URA Civil Appeal 44 of 1996,
it was held by the Court of Appeal that-

“The Registrar, his Deputy and or Assistants are officers of the High
court. They are not governed by the Magistrates’ Court Act when they
sit as a court. Under order 50 rule 4 of the Civil Procedure Rules, a
Registrar presides over a civil court when dealing with matters under
Order 50 rules 1,2 &3 of the Civil Procedure Rules. Under the
Advocates (Remuneration and Taxation of costs) Rules under which the
proceedings, the subject matter of this appeal took place, the Registrar
or taxing officer was not a magistrate’s court. He proceeded to deal
with the bill of costs as an officer of the High court to which the bill of
costs had been presented. We agree that the learned judge erred in law
when he applied section 82 of the Civil Procedure Act which in the
circumstances is inapplicable”.

END

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