Civil Procedure Notes: UCU Faculty of Law

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Civil Procedure Notes
BACHELOR OF LAW (Uganda Christian University)
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FACULTY OF LAW
CIVIL PROCEDURE I
PREPARED BY PAUL MUKIIBI (UCU)
COMPILED AND EDITED BY:
EPEDUNO ALLAN
0785322900/0755473399
epedunoallan@gmail.com
Compiled & Edited by Epeduno Allan Page 1

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TOPIC 01: INTRODUCTION TO CIVIL PROCEDURE

CONTENTS
1.0 Introduction to Civil Procedure
2.0 Nature of Civil Procedure Rules
3.0 Objectives of Civil Procedural Law
3.1 Complementary Character
3.2 Protective Character
3.3 Remedial or Practical Character
4.0 Sources of Procedural Law
5.0 Organisation and Hierarchy of Courts
6.0 Civil Jurisdiction
7.0 Sources of Jurisdiction
7.1 The Constitution
7.0 Jurisdiction of Magistrates Courts
8.2 Chief Magistrate
8.3 Magistrate Grade 1
8.3 Magistrate Grade II
8.4 Courts of Record and their jurisdiction (whose decisions form precedents to be referred to
by other courts)
8.5 The High Court of Uganda
8.6 Court of Appeal and Constitutional Court
8.7 Supreme Court
9.0 Revision Questions

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1.0 Introduction to Civil Procedure
Civil procedure is the body of law that sets out the rules and standards that courts follow
when adjudicating civil law suits (as opposed to procedures in criminal law matters). These
rules govern how a lawsuit or case may be commenced; what kind of service of process (if
any) is required; the types of pleadings or statements of case, motions or applications, and
orders allowed in civil cases; the timing and manner of depositions and discovery or
disclosure; the conduct of trials; the process for judgment; various available remedies and how
they are executed/enjoyed after they have been granted; and how the courts and clerks must
function.
Broadly speaking, civil procedure consists of the rules by which courts conduct civil trials.
"Civil trials" concern the judicial resolution of claims by one individual or group against
another and are to be distinguished from "criminal trials," in which the state prosecutes an
individual for violation of criminal law.
Black’s Law Dictionary, Eighth Edition refers to it as ;
1) The body of law - usu. Rules enacted by the legislature or courts- governing the
methods and practices used in civil litigation.
2) A particular method or practice used in carrying on civil litigation”.
"Procedural/Adjective law" is to be distinguished from "substantive law" in that substantive

law defines the rights and duties of everyday conduct. Substantive law includes contract law,
tort law, constitutional law, Land law and the Law of sale of goods among others.
A procedural system provides the mechanism for applying substantive law to real disputes. A
good procedural system should provide guidelines as to what information is received by the
judge or jury, how that information is to be presented, and by what standards of proof
("beyond a reasonable doubt," "by clear and convincing evidence," "by a preponderance of the
evidence") the information will be adjudged. A good procedural system ensures that similar
cases will be treated similarly by the courts.
In his work, Scotch Reform (1808), Jeremy Bentham presented a utilitarian notion of Civil
Procedure as the need “To Supply Justice to all at least expense”. Basing on his utilitarian

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approach which largely clouded his adjectival writings, Bentham classifies the ends of
procedure into direct and collateral ends.
Bentham explains the direct ends as 'giving execution and effect to the predictions delivered,
to the engagements taken, by the other branch, the main or substantive branch of the law: viz.
by decisions pronounced in conformity to it.' He views the 'collateral' ends as 'prevention of
delay, vexation and expense, in so far as superfluous or preponderant'. He therefore views the
overarching end of procedure as the prevention of mis-decision or a failure of justice.
Halsbury’s Laws of England, (2009) Volume 11, 5th Edition in paragraph 1(1), it is stated that;
“Although civil procedure has been categorised as procedural rather than substantive law, it affects all
other branches of the law except criminal law and criminal procedure, for rights under the law may need
to be enforced, and a remedy requires procedure. It is of great antiquity in its origins but has been
periodically overhauled, sometimes radically, to meet current needs, most recently by the Civil
Procedure Rules. Civil procedural law governs the practice and procedure in the courts and regulates
the administration of civil justice. It may be regarded as consisting of three parts, not to be viewed as
self-contained compartments but as interrelated with, and overlapping and interacting upon, each other,
namely the institutional part, the professional part and the procedural part. Notwithstanding its
apparent complexity and its occasional technicality, civil procedural law forms an indispensable part of
the machinery of justice and operates as an essential tool for enforcing legal rights and claims, for
redressing or preventing legal wrongs, for asserting legal defences, and for such other ancillary
purposes as the recognition of personal status, the adjustment of proprietary interests in the
case of insolvencies, the administration of estates and of trust property and the like, and for
the supervision and control of inferior courts, tribunals and other judicial decision-making
bodies. In short, civil procedural law is a necessary legal and social instrument for the attainment of
what Lord Brougham called 'justice between man and man'.”
(See 2 Speeches of Henry, Lord Brougham (1838) 324. Henry Brougham used this seminal
phrase in his celebrated speech in the House of Commons on 7 February 1828. It was no
exaggeration for Sir Maurice Amos to claim that 'Procedure lies at the heart of the law': see Sir
Maurice Amos's 'A Day in Court at Home and Abroad' (1926) Cambridge Law Journal 340. Cf
the dictum of the Committee on Supreme Court Practice and Procedure ('the Evershed
Committee') in its Final Report (1953) (Cmd 8878) para 1, 'the shape and development of the

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substantive law of England have always been, and, we think, always will be, strongly
influenced by matters of procedure', citing the celebrated aphorism of Sir Henry Maine that
'substantive law has at first the look of being gradually secreted in the interstices of
procedure'.)
In the context of 'civil procedural law', 'civil' is used in contradistinction to 'criminal. The need
for this division arises largely from the fact that, broadly speaking, the primary objective of
civil procedure is remedial, to make good civil wrongs by compensation, restitution or
satisfaction and, if necessary, by restraint by appropriate relief, whereas the primary objective
of criminal procedure is penal or punitive. (When criminal procedure imposes a fine, the effect is to
make the accused suffer economic detriment. In cases where it provides for compensation, that is merely
an order related to the sentence).
Procedure has two basic branches: - The Law of evidence and the Law of procedure. Evidence
deals with proof of facts while procedure regulates steps to be taken by parties during
litigation from the time the plaintiff commences proceedings to the time when, if successful,
wishes to enforce the judgment he or she obtains against the defendant. These steps include
commencement of proceedings, issue and service of court process or documents, trial and
other applications. It also includes giving of judgment and enforcement of the same, costs,
appeals, review and revision.
Procedure also includes non-litigious methods of resolving disputes (Alternative Dispute

Resolution or ADR) which inter alia include negotiation, arbitration and reconciliation, among
others.
Procedural rules must also be in conformity with rules of natural justice by which each party is
allowed to present his/her arguments before a judgment is given.
Article 28(1) of the Constitution provides that:
“In the determination of civil rights and obligations or any criminal charge, a person shall be entitled to
a fair, speedy and public hearing before an independent and impartial court or tribunal established by
law.”
Although many suits filed in Uganda may be settled before trial through negotiated

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settlements or arbitration, "civil procedure" strictly defined applies only in formal courts of
law.
2.0 Nature of Civil Procedure Rules
The Rules of Civil Procedure are designed to formulate the issues that the court has to
determine and to give fair notice thereof to the parties. See: Bhag Bari v Mehdi Khan [1956] EA
94 (CA-K) at P. 104.
Procedural rules are intended to serve as handmaidens of justice and not to defeat it. See: Iron
Steel Waters Ltd v C.W. Martyr & Co. Ltd (1956) 23 E.A.C.A 175(CA-U). Collins MR in Re
Coles and Ravenshear's Arbitration [1907] 1 KB 1 at 4, CA observed that:
'Although I agree that a court cannot conduct its business without a code of procedure, I think that the
relation of rules of practice to the work of justice is intended to be that of handmaid rather than mistress,
and the court ought not to be so far bound and held by rules, which after all are only intended as general
rules of procedure, as to be compelled to do what will cause injustice in the particular case'.
This concept is echoed in Art. 126(2) (e) of the Constitution which has had several judicial
pronouncements.
In Utex Industries Ltd. Vs Attorney General (Civil Application No.52/95); The application
before the Supreme Court was the usual one seeking to enlarge time for failure to take the
right step at the right time under certain provisions of the Supreme Court rules of procedure.
The applicant sought to rely on Article 126(2) (e) in support of its case. In rejecting the
application the Court said:
"Regarding Article 126(2)(and the Mabosi case we are not persuaded that the Constituent Assembly
Delegates intended to wipe out the rules of procedure of our courts by enacting Article 126(2)(e).
Paragraph (e) contains causation against undue regard to technicalities. We think that the article
appears to be a reflection of the saying that rules of procedure are handmaids to justice meaning that
they should be applied with due regard to the circumstances of each case. We cannot see how in this case
article 126(2)(e) or Mabosi case can assist the respondent who sat on its rights since 18/8/1999 without
seeking leave to appeal out of time. It is perhaps pertinent here to quote paragraph (b) of the same clause
(2) of Article126. It states; "justice shall not be delayed". Thus to avoid delays, rules of Court provide a

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timetable within which certain steps ought to be taken. For any delay to be excused, it must be explained
satisfactorily. "
The next case of Kasirye Byaruhanga & Co Advocates Vs Uganda Development Bank (Civil
Application No.2/97); came before the same court on an application for enlargement of time.
The applicant also sought to rely on Article 126(2) (e) in support of its application. In rejecting
the application, the Court relied on the Utex case and stated:
“a litigant who relies on the provisions of Article 126(2)(e) must satisfy the court that in the
circumstances of the particular case before the court it was not desirable to pay undue regard to a
relevant technicality. Article 126(2) (e) is not a magic wand in the hands of defaulting litigants."
It should be borne in mind that the court was being asked to exercise its discretion in favour of
the applicants. In exercising its discretion, the circumstances of each case are very important.
However, the right to be heard should always be a relevant consideration and therefore
should be considered before such applications are rejected on technical grounds. In some
instances there may be no injustices that would be caused to the opposite party. In any case,
our judicial system should never permit a party to be driven from the judgment seat without
the court considering his/her/its/ right to be heard except in cases where the cause of action
is obviously and almost incontestably bad.
3.0 Objectives of Civil Procedure Law
Civil procedural law fulfills many legal and social functions, and its objectives have changed
over time. In the present day, the function of the court is not only to decide individual cases
but also to ensure that the civil justice system, which is a public service, delivers a satisfactory
service which meets public expectations and needs.
The civil process is no less a law enforcement process than the criminal process. The civil
process is not only for the resolution of individual disputes but also for the protection of
rights, for the enforcement of rights, and for remedying breaches.
Civil procedural law has been categorised according to the character which it assumes as the
indispensable instrument for the attainment of justice, namely;
a) its complementary character;

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b) its protective character; and

c) its remedial or practical character.
3.1 Complementary Character
In its complementary character, civil procedural law is ordinarily contrasted with substantive
law. Substantive law creates rights and obligations and determines the ends of justice
embodied in the law, whereas procedural law is an adjunct or an accessory to substantive law.
But this does not mean that civil procedural law should be regarded as secondary. The two
branches are complementary and interdependent, and the interplay between them often
conceals what is substantive and what is procedural. It is by procedure that the law is put into
motion, and it is procedural law which puts life into the substantive law, gives it its remedy
and effectiveness and brings it into being.
3.2 Protective Character
In its protective character, civil procedural law represents the orderly, regular and public
functioning of the legal machinery and the operation of the due process of law. In this sense,
the protective character of procedural law has the effect of sustaining and safeguarding
every person in his life, liberty, reputation, livelihood and property and ensuring that he
does not suffer any deprivation of his rights except in accordance with the accepted rules of
procedure. (Civil procedure will provide for the methods of proof – for instance “evidence of
publishing” in defamation cases, set time lines for particular actions and provide means of safeguarding
property through restoration or freezing activity on property – e.g. injunctions, garnishee proceedings,
eviction orders or vacant possession)
3.3 Remedial or Practical Character
In its remedial or practical character, civil procedural law deals with the means by which
persons can obtain through the litigation process protection from future wrongs, remedies for
wrongs suffered, and a resolution of disputes; in this sense it deals with the actual litigation
process.
What the practitioners seek for their clients when they resort to the courts is to use the
machinery of justice to obtain a just result, and what the clients seek in addition to justice is to

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avoid unnecessary expense and delay and excessive technicality in the process of attaining
that just result.
The Civil Procedure Rules have entrusted the control of litigation to the court, giving the court
a wider discretion than before to determine the best way of resolving disputes, under the
overriding objective of enabling it to deal with cases justly and enabling it to save expense and
time wherever possible.
4.0 Sources of Civil Procedural Law
The sources of civil procedural law are several and disparate, although together they
contribute to make up the general body of law and practice. They include:
a) The Constitution;
b) statute law;
c) rules of court;
d) practice directions;
e) judicial precedent;
f) prescribed and practice forms;
g) the inherent jurisdiction of the court;
h) the practice of the court; and
i) books on practice and procedure.
These sources differ in origin, authority and weight, but must nevertheless be taken and
treated as an entire and integral whole, providing a complete and comprehensive account or
description of the system for the administration of civil justice.
5.0 Organization and Hierarchy of Courts
The Ugandan judicial system refers to the court structures which range from the Local Council
courts to the Supreme Court. Under Article 126 of the Constitution all courts in Uganda
derive their Judicial power from the people, and this power shall be exercised by the courts
established under the constitution in the name of the people and in conformity with the law
and with the values, norms and aspirations of the people.

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The Constitution further provides in Article 129(1) for establishment of courts of judicature
which shall consist of: -
a) The Supreme Court

b) The Court of Appeal or Constitutional Court
c) The High Court
d) Such subordinate courts as parliament may by law establish, including quardir courts.
Under the category of subordinate courts, we have the following courts established under the
M.C.A. cap 16;
a) The Chief Magistrate

b) Magistrate Grade I
c) Magistrate Grade II
In addition we also have L.C. Courts established under the Local Council Courts Act, 2006.
It is important to note that there are certain courts in form of tribunals which are outside the
normal hierarchy of courts of law which are given civil jurisdiction over several matters for
example:
a) Tax Appeals tribunals.

b) Industrial Court.
c) Utilities, Wildlife and Standards Court
It should further be noted that the legislation creating or establishing a specific court, will
normally give the procedure to be followed and the jurisdiction which may be covered by that
court.
The jurisdiction of the courts established under the constitution is specified there under and
also under the Judicature Act.
6.0 Civil Jurisdiction
Jurisdiction is the power of court or Judicial Officer to hear and determine a matter submitted
to it. Mukasa Vs Muwanga HCMA No.31/1994; Courts in Uganda have jurisdiction to try any

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case unless expressly barred by law. S.5 CPA Cap 71.
Jurisdiction in simple terms is the power to exercise authority over persons and things within a
territory. In a legal sense, it gives a court the power to hear and decide a case or lawsuit. In Uganda
jurisdiction takes different folds;
a) Inherent and original jurisdiction;

b) Unlimited Jurisdiction;
c) Appellant jurisdiction;
d) Territorial/Geographical jurisdiction; and
e) Pecuniary jurisdiction (monetary value).
It should be noted that jurisdiction of Court can only be granted by law. If proceedings are
conducted by a court without jurisdiction, they are a nullity. This was the case in Desai versus
Warsaw (1967) EA 351. Therefore any award or judgment arising from such proceedings of a
Court without jurisdiction is also a nullity.
7.0 Sources of jurisdiction
7.1 Constitution
The primary source of jurisdiction is the Constitution of the Republic of Uganda, 1995 as
amended. The Constitution under Article 129 establishes the courts of judicature and makes
initial pronouncements about the jurisdiction of those courts.
 Other sources include;

a) Civil Procedure Act, Cap. 71;
b) The Civil Procedure Rules S.I 71-1 (as amended by S.I. No. 33/2019);
c) The Judicature Act, Cap. 13;
d) The Magistrates Courts Act, Cap. 16 as amended in 2007;
e) The Limitation Act cap. 80;
f) The Government Proceedings Act cap. 77
g) The Government Proceedings (Civil Procedure) Rules S.I 77-1
h) Civil Procedure and Limitation (Miscellaneous Provisions) Act cap. 72

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Note that;
a) Jurisdiction is a creature of the constitution and/or an Act of Parliament.

b) It cannot be implied.
c) It cannot be wished.
d) It must be given by law.
e) There must be authority to adjudicate.
8.0 Jurisdiction of Magistrates Courts
The subject matter civil jurisdiction of Magistrates Courts is conferred by s. 208 of the
Magistrates Courts Act, Cap 16 which provides that;
Every magistrate’s court shall, subject to this Act, have jurisdiction to try all suits of a civil
nature excepting suits of which its cognizance is either expressly or impliedly barred; but every
suit instituted in a magistrate’s court shall be instituted in the court of the lowest grade
competent to try and determine it. (Emphasis added).
This general rule is subject to various limitations found in sections 207, 212 – 215 of the
Magistrates Courts Act, relating to the nature, value, or the locality of the subject-matter, the
residence of the defendant, and so forth. Thus, the law confers on every person an inherent
right to bring a suit of civil nature of one's choice, at one's peril, before a magistrate’s court
howsoever frivolous the claim may be, unless it is barred by a statute.
The jurisdiction of the Magistrate’s Courts is laid out specifically in section 207 (1) (a), (b) and
(c) of the Magistrate’s Courts Act as amended by Act No. 7 of 2007. The Act provided as
follows:
8.1 Chief Magistrate;
Subject to this Act and other written law, the jurisdiction of Magistrates presiding over Magistrate’s
Courts for trial and determination of causes and matters of a civil nature shall be as follows: “A Chief
Magistrate shall have jurisdiction where the subject matter of the dispute does not exceed fifty million
shillings and shall have unlimited jurisdiction in disputes relating to conversion, damage to property or
trespass. Notwithstanding subsection (1), where the cause or matter of a civil nature is
governed only by civil customary law, the jurisdiction of a Chief Magistrate shall be unlimited.

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A Chief Magistrate exercises general powers of supervision of all magistrates' courts within
the area of his or her jurisdiction. In exercising his or her powers of supervision a Chief
Magistrate may call for and examine the records of any proceedings before lower magistrates'
courts. They have appellate jurisdiction from Grade II courts i.e. They entertain appeals from
the Grade II courts.
8.2 G.I Magistrates
These courts are presided over by Grade I Magistrates who must be qualified lawyers (Law
Degree and a Diploma in Legal Practice). They are ordinarily situated at the district
headquarters but can be distributed anywhere in the district depending on administrative
convenience and as just may demand. Their civil jurisdiction is limited to matters where the
value of the subject matter does not exceed twenty (20) million Uganda shillings;
notwithstanding subsection (1) of Sec. 207 of the MCA, where the cause or matter of a civil
nature is governed only by civil customary law, the jurisdiction of a magistrate Grade I shall
be limited.
8.3 Grade II Magistrates
These are only permitted by the law to try civil cases whose value does not exceed Ugx.500,
000/= See. s.207 (1) (c) of the Magistrates Courts Act.
8.4 Courts of Record and their jurisdiction (whose decisions form precedents to be
referred to by other courts)
8.5 The High Court of Uganda
This is also called the Uganda High Court, is the third-highest judicial organ in Uganda,
behind the Court of Appeal of Uganda and the Supreme Court of Uganda. It has "unlimited
original jurisdiction", with powers to try any case of any value or crime of any magnitude (see
Article 139 of the Constitution). These are presided over by judges of the High Court. It is also
mandated to hear all appeals from all Magistrate Courts. High Court judgments are
appealable to the Court of Appeal of Uganda.
8.6 Court of Appeal and Constitutional Court

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These are presided over by the Justices of the Court of Appeal headed by the Deputy Chief
Justice. It has appellate jurisdiction over matters coming from the High Court. It is sometimes
constituted as the Constitutional Court that entertains constitutional references from lower
courts including the High Court and Magistrates Courts.
8.7 Supreme Court of Uganda
This is the final/last court of Uganda in the adjudication system. It enjoys appellate
jurisdiction from all matters arising from the decisions of the Court of Appeal and the
Constitutional court respectively. It is presided over by the Chief Justice as the administrative
head and other justices of the Supreme Court. It is also a court of original jurisdiction or first
instance in matters concerning Presidential Petitions.
9.0 REVISION EXERCISE

1) Define what you understand by the term “Civil Jurisdiction”
2) Discuss the purpose of Civil Procedural law in Uganda’s litigation system.
3) Article 126 (2) (e) of the Constitution of the Republic of Uganda, 1995 provides as
follows; “In adjudicating cases of both a civil and criminal nature, the courts shall,
subject to the law, apply the following principes;
e) substantive justice shall be administered without undue regard to technicalities”.
Explain how courts of law in Uganda have applied the above principle in determination
of civil disputes before them.
4) Explain the Civil jurisdiction of the following courts;
a) Supreme Court of Uganda;
b) Court of Appeal of Uganda;
c) Constitutional Court;
d) High Court of Uganda;
e) Chief Magistrate Court;
f) Magistrate Grade I; and
g) Magistrate Grade II
<<<<<< End of Topic 01 >>>>>

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TOPIC 02: COMMENCEMENT (INSTITUTION) OF SUITS

CONTENTS I
8.0 Introduction
9.0 Preliminary Considerations
10.0 Institution of Suits
3.1 Plaint in ordinary suit
3.1.1 Accompanying documents to a Plaint
3.1.2 Summons
3.1.3 Mediation Case Summary
3.2 Originating Summons
3.3 Petition
3.4 Notice of Motion and Chamber Summons
4.0 Filing of Court Process
5.0 Revision Exercise
1.0 Introduction
A suit is defined under Sec. 2 (xx) of the CPA to mean any civil proceedings commenced in the
manner provided by the rules. It is a case in a court of law involving a claim or a complaint by
one party against another. A lawsuit is brought to enforce, redress, or protect rights of private
litigants (Persons involved in a lawsuit).
2.0 Preliminary Considerations
Where negotiations fail, the aggrieved party may commence proceedings against the other
person or party. It is always advisable that serious thought is taken of the consequences of
instituting a case. Civil proceedings in Uganda are normally lengthy because of inefficiency
and bureaucracies involved in the judicial system. Litigation is also notoriously expensive and
can cause considerable financial embarrassment to the party ordered to pay costs of the suit.
As a result of this, courts have insisted that the parties explore possible avenues for having the
matter settled amicably before full litigation can start.
It is normally advisable that a party should demand from the prospective defendant to stop the
breach or put right the wrong which has been committed. In practice this is done through a

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demand letter (demand notice) which also serves as a notice of intention to sue.
Failure to serve a notice of intention to sue may disentitle an advocate to costs and its
importance cannot be over emphasized. (See Rule 39 of the Advocates (Remuneration and
Taxation of Costs) Rules SI 267-4). It states that:
“If the plaintiff in any action has not given the defendant notice of his or her intention to sue, and the
defendant pays the amount claimed or found due at or before the first hearing, no advocate’s costs shall
be allowed except on an order of the judge or magistrate.”
In Wambugu vs Public Service Commission [1972] E.A 29; it was held that a notice of intention
to sue must be served or given in all cases unless the plaintiff’s interests are likely to be harmed
by it.
The service of notice of intention to sue must be covered in the plaint by including a paragraph
to the effect that it was duly communicated.
In case of government or a scheduled corporation, there’s need to serve a statutory notice. This
is provided under the Civil Procedure (Miscellaneous Provisions) Act cap. 72, Laws of Uganda.
Under Section 2 of the Civil Procedure (Miscellaneous Provisions) Act provides:-
“2. Notice prior to suing
1. After the coming into force of this Act, notwithstanding the provision of any other
written law, no suit shall lie or be instituted against -
 The Government
 A Local Authority; or
 A scheduled Corporation
Until the expiration of forty five days after a written notice has been delivered to or left at the
office of the person specified in the first schedule to the this Act, stating the name, description
and place of residence of the intended plaintiff, the name of the Court in which it is intended
the suit be instituted, the facts constituting the cause of action and when it arose, the relief that

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will be claimed and, so far as the circumstances admit, the value of the intended suit.
The jurisprudence has changed on this position with the recent decisions. In Kampala Capital
City Authority v Kabandize & 10 Ors (CIVIL APPEAL NO. 013 OF 2014) [2017] UGSC 44 (2
November 2017); (see lead judgment of MWANGUSYA JSC); the Supreme Court noted that the
rationale for the requirement to serve a statutory notice was to enable a statutory defendant
investigate a case before deciding whether to defend it or even settle it out of court. There was
a claim that no statutory notice was served but the appellant was able to file a written
statement of defence and adduce evidence in support of his defence. There was also nothing
that stopped the parties from settling the case if ever a settlement was an option. This is a clear
illustration “that failure to serve the Statutory Notice does not vitiate the proceedings as the
Court of Appeal rightly found. A party who decides to proceed without issuing the Statutory
Notice only risks being denied costs or cause delay of the trial if the Statutory defendant was
unable to file a defence because she required more time to investigate the matter. In my view
the emphasis should not be on the failure to serve the Statutory Notice but on the
consequences of the failure so long as both parties are able to proceed with the case and Court
can resolve the issues which the High Court should have done after going through the hearing.
Parliament could not have intended that a plaintiff with a cause of action against a Statutory
defendant would be totally denied his right to sue even where the defendant knew the facts and
was able to file a defence as it was in this case simply because of the failure to file a statutory
notice”.
When commencing proceedings, decisions have to be made about which appropriate court and
type of procedure to use. Care though has to be given to the following issues: -
 Whether there is a triable issue i.e. whether the wrong for which the plaintiff intends to
sue is one for which substantive law provides a remedy.
 Which court has jurisdiction in the matter, including where the cause of action arose.
 The prospective plaintiff must also ensure that he has locus standi and that the intended
defendant is a proper defendant to the action.
 The litigant has also to decide who should be named in the proceedings as a defendant
and precisely what claims should be made against each of him/her (them).
 In addition, the prospective plaintiff must ensure that the action is brought in time and

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that it is not premature. This is because the Limitation Act prescribes the period within
which certain actions must be taken to a court of law.
3.0 Institution of Suits
Section 19 of the civil procedure Act cap. 71 provides that;
“Every suit shall be instituted in such manner as may be prescribed by rules”.
Note that The Civil Procedure Rules provide for the following methods of commencement o
proceedings:
a) Plaint (Ordinary Suits)

b) Originating summons
c) Petition
d) Notice of motion.*
e) Chamber summons*
See: General Parts Ltd v NPART, SCCA No. 9 of 2005; [2006] 2 EA 57 (SCU); It was trite that in
civil matters, the only modes of instituting suits were by plaint, originating summons and
petition. A Notice of Motion was not an alternative mode of instituting any type of suit.
3.1 PLAINT IN AN ORDINARY SUIT (Order 4 of the CPRs)
This is the usual method of commencement of proceedings where there is a substantial dispute
as to facts. It is preferable that the person institutes an ordinary suit which is normally by way
of plaint. The procedure is provided for under Order 4 of the Civil Procedure Rules. The suit
is instituted by way of plaint which must comply with the rules contained in Orders 6 and 7 of
the CPRs so far as applicable. The main feature of the ordinary suit is the exchange between
the parties of written pleadings as a result of which they join issue upon questions of fact.
A plaint is a document stating the Plaintiff’s claim against the defendant and what he/she
wishes court to do for him/her. Every plaint shall contain the following particulars;
a) the name of the court in which the suit is brought;

b) the name, description and place of residence of the plaintiff and an address for service’
c) the name, description and place of residence of the defendant’

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d) if the plaintiff or defendant is a minor or person of unsound mind, a statement to that

effect;
e) the facts constituting a cause of action and when it arose;
f) the facts showing that the court has jurisdiction;
g) the relief which the plaintiff claims;
h) where the plaintiff allowed a set off or relinquished a portion of his claim, the amount so
allowed or relinquished.
See O. 7 r1 of the CPRs.
3.1.1 Accompanying Documents to the Plaint
The plaint must be supported by a Summary of Evidence, list of documents, witnesses and
authorities that the plaintiff intends to rely on. The plaint should also be accompanied by a
Mediation Case Summary. When filing the plaint, the requisite filing fees must be paid in the
bank and evidence of payment (bank deposit slip) attached to the plaint.
3.1.2 The Summons
A plaintiff then extracts a Summons from court requiring the defendant to either file a defence
or appear in court on a day specified therein and serves it together with the plaint on the
defendant within 21 days after court issues the summons. Once the summons is served on the
defendant, the plaintiff must file an Affidavit of Service of Summons in court clearly stating
how he/she served it on the defendant. The defendant in this case may defend themselves.
3.1.3 The Mediation Case Summary (see Rule 5 of the Judicature (Mediation) Rules, SI No.
13 of 2013)
Mediation under these rules means the process by which a neutral third person facilitates
communication between parties to a dispute and assists them in reaching a mutually agreed
resolution of the dispute (see Rule 3).
A mediator is defined under the rules as a person eligible to conduct mediation (see Rule 3).
It is a requirement of the law now that while instituting a suit; it must be accompaigned by a
mediation case summary (see Rule 5 (3) of the Mediation Rules). These include;

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a) The names of the parties;

b) The address of the parties including postal, fax, telephone and email addresses;
c) The facts giving rise to the civil action and the defence to the facts;
d) The name and address of the advocate of the party, if any;
e) The person with full authority to sign a settlement;
f) The name of the person who will be the lead negotiator for the party;
g) The name of the proposed mediator, if any; and
h) The documents that the parties intend to rely on at the mediation.
This procedure under Order 4 differs from that under Order 36 which deals with summary
procedure and is commenced by a specially endorsed plaint. Under summary procedure,
there is usually no substantial dispute as to the facts in issue.
3.2 ORIGINATING SUMMONS (OS) (Order 37 of the CPRs)
Under this procedure, a string of questions are usually presented to the court for
determination. The main advantage of originating summons is that the proceeding is usually
more speedy than an action by way of plaint. Under such a proceeding, there are no pleadings
and usually no witnesses. Evidence is given by way of affidavit and normally there are no
interlocutory applications such as discovery.
Under O.34 CPR (which deals with interpleader proceedings) for example, originating
summons procedure is most suitable where there is no substantial dispute on the facts and
there is only a disagreement as to the legal consequences arising from the undisputed facts.
See: Order 37 CPR; Nakabugo v Francis Drake Serunjogi [1981] HCB 58, 59; Spry: Pages 265-
269.
In a Zanzibar High Court case, reported in the Eastern Africa Law Reports, viz; Kulusumbai
Vrs. Abdul Hussein (1975) EA 708; It was held that the procedure by Originating Summons was
intended to enable simple matters to be settled by the Court without the expense of bringing an
action in the usual way, not to have Court determine matters which involve a serious
question. Similarly in Nakabugo Vrs. Serunjogi (1981) HCB 58, it was held that it is trite law
that when disputed facts are complex and involve a considerable amount of oral evidence, an
Originating Summons is not the proper procedure to take.

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Originating Summons are intended to enable simple matters without the expense of bringing
an action in the usual way but are not meant to determine matters which involve a serious
question.
It is meant to be a simple and speedy procedure and its merits are based on the fact that there
are no pleadings involved or in general no witnesses the questions for decision being raised
directly by the summons itself and the evidence given by affidavit.
The above position has been applied in other cases for example: Vincent Kawunde t/a Oscar
Associates VRs. Damian Kato – HCCS-OS-04/2007 and Nagemi Vrs. Semakula – Civil Suit
(OS) 08/2013
The body of the originating summons must be drafted clearly and objectively in order to
achieve its purpose. In particular it must define the issues and include a statement of the
questions on which a plaintiff seeks a determination for the directions of the court and he or
she must also include a concise statement of the relief or remedy claimed with sufficient
particulars to identify the cause or causes of action.
3.3 PETITION
Legislation, a statutory instrument or rules may prescribe that proceedings be commenced by
way of petition. The most common types of petitions are those related to company matters
provided under the Companies Act and 0.38 CPR. Also matrimonial proceedings under the
Divorce Act, succession matters under the Succession Act, election challenges as provided
under the legislations that regulate elections and Constitutional grievances do adopt this
procedure.
3.4 NOTICE OF MOTION AND CHAMBER SUMMONS

This procedure generally relates to interlocutory applications. Whereas this is absolutely true
for Chamber summons, there are certain instances where a civil process is commenced by a
Notice of Motion. For instance under rule 6 of the Judicature (Judicial Review) Rules No. 11 of
2009, applications for judicial review are commenced by Notice of Motion. Similarly, under
rule 3 of the Judicature (Fundamental Rights and Freedoms) (Enforcement Procedure) Rules
2019, every application is to be made by Notice of Motion.
Under 0.52r1 CPR all applications to court save where otherwise expressly provided for in the

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Civil Procedure Rules shall be by motion and shall be heard in open court.
Generally applications made by this method include:
- Applications for judicial review

- Application for Habeas corpus
- For the redress of breach of fundamental Human Rights under the constitution.
There general rule is that where a statute or legislation provides for an application to be made
to court but does not specify the form in which it is to be made and the rules do not expressly
provide for any special procedure, the application may usually be made by notice of motion
(Order 52 rule 1 CPR).
There are conflicting decisions on whether or not a notice or motion must be signed by court.
See: Joy Kaigana v Dabo Boubon (1986) H.C.B 59; Nakitto v Katumba (1983) H.C.B. 70.
As a rule, all notices of motion must be signed by the party or his/her advocate. ([See
American Express Int. V Patel, Civil Appeal No. 5 of 1985 (Unreported)]
The major distinction between a motion and chamber summons is that a chamber summons is
issued by the authority of court and regarded as a command directed by the court concerned
but a motion is usually brought by a party seeking some form of relief or remedy from court
and must therefore be signed by him in the same way as a notice of appeal or a plaint.
A Notice of motion must contain the grounds of application that have to be set out. The
evidence in support of a Notice of motion must be by an affidavit and such copy of an affidavit
must be served with a motion since a motion cannot stand without an affidavit. It should be
noted however that an affidavit may not be necessary where an application rests on a matter of
law. See: KCC V Apollo Hotel [1985] H.C.B. 77; Kabwimukya v Kasigwa [1978] HCB 251.
Unlike a chamber summons which is to be heard in chambers, a notice of motion will usually
be heard in open court.
For more on Notice of Motion, see Spry, pgs 306-310.
In SUSAN K. BAUR vs SHASHIKANT SHAMJI SHAH (HIGH COURT OF KENYA

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AT NAKURU CIVIL CASE NO. 279 OF 2010): J. M.J. ANYARA EMUKULE observed that;
“The difference between a Summons in Chambers and a Notice of Motion is today very much blurred. In
the olden days, summons in chambers was heard in chambers unless the court adjourned it for good
reason to be heard in open court. Similarly, Motions were heard in open court unless the court as stated
in Order L, rule 1 directed that it be heard in chambers. Today, both Chamber Summons and Motions
may and are heard in chambers, and in open court. So that christening an application a Chamber
Summons or a Notice of Motion when the rules provide otherwise does not go to the root or basis of the
claim, and is merely a matter of form not substance. It does not render the application fatally
defective. In any event under this application there is correct reference to Order XXXIX rules 1(a), 2 &
3(a) and rule 9 (which says the application for temporary injunction may be brought by way of Chamber
Summons. The contention otherwise is, I think, misconceived and mischievous”.
4.0 Filing of Court Process

In every magisterial area, there must be a registry in which the person who wishes to file a case
can file the relevant court papers.
Similarly in every High Court jurisdiction there has to be a registry where court papers are
lodged.
The High Court has created other circuit courts in the different regions of the country namely:
Nakawa, Mukono, Jinja, Mbarara, Masaka, Mubende, Fort Portal, Mbale, Soroti, Arua and
Gulu. For details, see the High Court (Circuits) Instrument, SI No. 20 of 2004.
The main feature of these circuit courts is that they handle all matters irrespectively and
without separation and all these circuit courts have deputy registrars who are in charge of
filing, and where there is no such registrar, then the chief magistrate acts as the registrar.
Before a party files any court process at any registry, he or she is supposed to pay the court
fees or filing fees which are set out in the Court fees Rules and these must be paid
spontaneously (See: The Judicature (Court Fees, Fines and Deposits) Rules, SI 13-3). These days,
the fees are paid directly in the bank and a bank advice form obtained.
In Unta Exports v Customs [1970] EA 648, the action was filed on 14th but the receipt indicated
that fees were paid on 16th. Gouldie, J. Held at. Page 649 that:

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“as a matter of practice and of law, documents cannot be filed validly in the civil registry until fees are
paid or provided for. In this case the fees had not been paid by the time of filing and in fact were paid out
of time; the struck out.”
In Banco Arabe Espanol v Bank of Uganda, CACA 42/98, the fees were paid shortly after filing
the notice of appeal, but within the 14 days limitation. The Court of Appeal held that the notice
of appeal was valid provided the fees were paid within the time allowed by the rules.
See also Katuramu v Maliya (1992-93) H.C.B. 161

5) Discuss the relevant preliminary considerations a party must consider before instituting
civil proceedings.
6) Discuss the various modes of commencement of civil proceedings provided for under
the Civil Procedure Rules.
7) Distinguish between an ordinary plaint and a specially endorsed plaint.
8) Citing relevant authorities, explain the documents that accompany a plaint during the
filing process or at the commencement of civil proceedings.
9) With reference to clear authorities, distinguish between a notice of motion and a
chamber summons.
10) Explain the following;
a) Mediation
b) Relevance of Mediation in Civil Proceedings
c) The contents of a mediation case summary under S.I No. 13 of 2013
<<<<<< End of Topic 02 >>>>>

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TOPIC 03: PARTIES TO A SUIT

I
CONTENTS
11.0 Introduction
12.0 Types of Parties
12.1 Proper Parties
12.2 Desirable Parties
12.3 Necessary Parties
3.0 Capacity to sue or be sued
3.1 Natural persons
3.2. Suits by minors
3.3. Mentally Incompetent Persons
3.4. Companies and Statutory Persons as Parties
3.5. Government
3.6. Representative Parties
3.6.1. Deceased Persons
3.6.2. Trustees
3.6.3. Unincorporated Associations
3.6.4. Partnerships
3.7. Aliens
3.8. Foreign states
4.0 Revision Exercise

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1.0 Introduction
A party to a suit may be a plaintiff, defendant, applicant or appellant, respondent among
others depending on the type of proceedings.
Normally a party is a person who on the record of the court has commenced a proceeding or
against whom a proceeding has been commenced or who has been added by order of court as
a party to the suit.
The term party may also be used to designate the person seeking to present a plaint or
establish a cause of action as well as the person against whom it is sought to impose a
corresponding duty or liability.
In a representative action a person represented but not named as a party is also considered to
be a party and such a person may be substituted and named as a party.
To be a party, a person must be able to maintain a cause of action or incur a liability to a

person who has a cause of action.
Every party to a suit must be a legal person who must have legal capacity to sue and be
sued. It may be a natural person (s) or artificial person (s).
2.0 TYPES OF PARTIES TO A SUIT

There are different types of parties to a suit.
2.1 Proper parties

Proper parties are those parties who though not interested in the plaintiff’s claim, are made
parties for some reasons. In the case Yusuf vs. Akidipe (2000) 5 SCN at 128, the Supreme
Court of Nigeria held that a proper party is one who claims for himself, although he may
claim on behalf of others. However, he should be able to establish a nexus between himself
and those he is representing to make him a proper party.
2.2 Desirable parties

A desirable party is one who was not originally a party to the action now whose presence is
necessary for the just determination of issues in the action but nevertheless needs to be a
party in order to be bound, since the decision in the case may directly affect him or her. In
Departed Asians Custodian Board vs Jaffer Brothers Ltd [1991] 1. EA. 55; the supreme court

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of Uganda was of the view that for a party to be joined to a suit, the following considerations
have to be met;
a) His/her presence is necessary for the effective and complete settlement of all questions involved
in a suit;
b) It is necessary to show that the orders sought would legally affect the interest of that person;
and
c) It is desirable to have that person joined to avoid a multiplicity of suits ; or
That the defendant could not effectually set up a desired defence unless that person was
joined or an order made that would bind that other person. See also the following cases;
Gokaldas Laximidas Tanna vs Store Rose Muyinza HCCS No. 7076 of 1987 [1990-1991]
KALR 21 and Mpiima vs Samson Sempasa & P.K. Sengendo HCMA No. 577 of 2013.
2.3 Necessary/Nominal parties

These are parties needed for the effective determination of the suit. In other words, they are
persons or entities whose interest will be affected by the outcome of a law suit, whose absence
as a party in the suit prevents a judgment on all issues.
Note that under the rules of procedure, two or more persons may be joined in a suit as
plaintiffs to prosecute their common interest, right or relief. But for there to be a joinder of
plaintiffs, the right or relief sought must be in respect of or arise out of the same transaction or
in a series of transaction (see Order 1 rule 10 (2) of the CPRs) Kayondo & 3 Ors vs The
Administrator General & 2 Ors HCMA No. 628 of 2016; Court has, under Order 1 rule 10(2), the
discretion to order anyone to be joined as a plaintiff or defendant or as a person whose presence before
court may be necessary in order to enable court to effectively and completely adjudicate upon and settle
all questions involved in the suit. Such person may be joined even if the plaintiff has no cause of action
against him or her provided that such party’s presence is necessary for effectual and complete
adjudication and settlement of all issues involved in the suit before court. The application to add a
party could be by any of the parties, or done by the court on its own motion, or by any person whose
legal right may be directly affected by the grant of the relief claimed in the action and who can show
that his or her presence is necessary to enable court effectively and completely adjudicate or settle the
suit before it. In other words, for there to be joinder of plaintiffs, they must not have conflicting
interest.
3.0 CAPACITY TO SUE OR BE SUED

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The determination of whether a person is capable of suing or being sued is governed by the
substantive law. It is important to consider the locus standi of the plaintiff in the matter, where
a plaintiff is held to lack the locus standi to maintain an action, the court may strike out the
matter.
The term locus standi was defined in the case of Njau and Others vs City Council of Nairobi
[1976-1985] 1 E.A. 397 at 407 to mean the following;
a) A place of standing;
b) A right to appear in court, and, conversely, to say that a person has no locus standi means he
has a right to appear or be heard in a specific proceeding; and
c) It also means that a person cannot be heard even on whether or not he has a case worth
listening.
It is trite that save in public interest litigation or except where the law expressly states
otherwise, such as Article 50 (2) of The Constitution of the Republic of Uganda, 1995 which
confers on any person or organisation the right to bring an action against the violation of
another person’s or group’s human rights, for any person to otherwise have locus standi, such
person must have “sufficient interest” in respect of the subject matter of a suit, which is
constituted by having; an adequate interest, not merely a technical one in the subject matter of
the suit; the interest must not be too far removed (or remote); the interest must be actual, not abstract
or academic; and the interest must be current, not hypothetical. See Mbabali Jude & 11 Ors vs. Hon.
Raphael Magyezi & Anor HCMC No. 011 of 2020. The requirement of sufficient interest is an
important safe-guard to prevent having "busy-bodies" in litigation, with misguided or trivial
complaints. If the requirement did not exist, the courts would be flooded and persons
harassed by irresponsible suits. (See J. Stephen Mubiru in Dima Domnic Poro Vs Inyani &
Anor (CIVIL APPEAL No. 0017 OF 2016) [2017] UGHCCD 154 (30 November 2017).
While most natural persons may sue or be sued, limitations exist with regard to certain types
of natural persons such as children, persons of unsound mind, aliens and sovereign states.
3.1 Natural persons

Natural persons who are mentally competent may sue or be sued without limitation except in
cases of death of such a person, when he or she may cease to exist as a party and actions on
behalf of his or her estate continued in a representative proceeding by the executors or

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administrators of the estate.
While alive, a natural person may be a party to a proceeding in his/her given, assumed or
fictitious name. When an alias is used a party should be described by using his proper names
followed by the alias.
When a father and son have the same names, it will generally be assumed in absence of a
prefix that the father is intended. When a son is sued or daughter is sued, the prefixes S/O or
D/O will be used respectively.
A party must be described by name and not mere descriptions such as administrators of X’s
estate without naming the individual administrators.
It is not legally possible for an agent to institute a suit in his or her own name without the
principal’s authority.
This was held in the case of Oriental Insurance Brokers Ltd Vs Trans Ocean Uganda Ltd
H.C.C.S. No. 250/93 unreported. See generally Order 3 of the CPRs regarding recognised agents.
3.2. SUITS BY MINORS

Minors cannot bring suits on their own accord until they attain the age of majority (see Article
31 (1) and Article 257 (1) of the Constitution of the Republic of Uganda, 1995). A minor is a
person who has not attained the age of majority which may either be 18 or 21 depending on
the jurisdiction. Similarly, a minor cannot be sued in his or her own accord.
See: Bibonde v Wasswa [1974] HCB 120; Kiddu Musisi v Lyamulemye [1964] HCB 81; Kimera
v Jiwani [1971] ULR 194; Art. 257(1) (c) Constitution, 1995
In such circumstances a minor sues by his or her next friend or defends by his or her guardian
ad item. See: Kabatooro v Namatovu [1975] HCB 159
Order 32 Rule 1 of the Civil Procedure Rules requires that every suit by a minor must be
instituted in his or her name by a next friend.
A next friend must sign a written authority which is to be filed together with the plaint (Order
32 rule 1(2) CPR). The next friend or guardian ad litem must act by an advocate who must
certify that he knows or believes the person to whom the certificate relates to be a minor and
that the person consenting to be a next friend or guardian ad item has no interest in the action

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which is adverse to that of a minor. See: Kasifa Kiwanuka v Sulaiman Lubowa [1972] HCB
210
Order 1 rule 10(3) CPRs provides that:

“No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff
under any disability without his or her consent in writing to being added.”
According to the case of Jingo v Kangiza 1974 H.C.B. 294, Court held that pleadings filed on
behalf of a minor without authority of a next friend will be taken off the file by the court.
Where a minor is represented by an advocate, and there is no authority of a next friend, if the
plaint is taken off the file, court may order costs to be paid personally by counsel. See: Order
32 rule 2 (1) CPRs.
The person appointed as a next friend may be personally liable for costs if they are awarded
against the plaintiff although he has the right of indemnity against the minor. On the other
hand, a guardian ad item is personally liable for costs only where he has been guilty of
negligence or misconduct.
The next friend is an officer of the court appointed to look after the interests of an infant in the
conduct of proceedings. A next friend has no power to consent to the dismissal of an action
or to the withdrawal of the suit without the court’s approval.
A next friend cannot retire without the consent of the court and it is immaterial that all parties
to the action have given their consent. A person retiring from being a next friend may be
required by the court to give security for costs incurred during his term of office. Court can
grant an application by next friend to withdraw on the ground that he or she will be liable for
costs (Order 32 rule 8 of the CPRs).
Where an infant who is a plaintiff in an existing action comes of age his next friend should not
take any further proceedings in the action. The former infant or minor may either adopt or
repudiate the proceedings within a reasonable time. On electing to adopt the proceedings an
infant in becoming of age should file in the registry of court a notice to the effect that he has
attained the age of majority and adopts the proceedings begun or defended on his/her behalf.
A copy of this notice should be delivered on the other parties (Order 32 rule 12 of the CPRs).
3.3. MENTALLY INCOMPETENT PERSONS

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These may include idiots and lunatics. An idiot is one who has suffered incapacity from birth
(usually has an IQ of about 25 or under a mental age of less than 3 years) whereas a lunatic is
one who has become insane after birth and where incapacity is temporally. In addition there
is a general term of madness which denotes incapacity of mind that is complete and
permanent and all these are normally compounded under a general term persons of
‘unsound mind’.
Under Order 32 Rule 15 of the CPRs, mentally incompetent persons may commence an action
in the same way as a minor through a next friend or defend a suit by a guardian ad item. See:
Kaggwa v AG [1971] H.C.B 333;
Section 2 of the Administration of Estates of Persons of Unsound Mind Act cap 155 provides
that the court may appoint a manager of the estate of a person of unsound mind on the
application of a superintendent or other person in charge of a mental hospital, the
commissioner of prisons, or a relative of any such person of unsound mind. Section 1 of the
same Act defines a person of unsound mind to mean, “...any person adjudged to be of
unsound mind under section 4 of the Mental Treatment Act or any person detained under
section 113 or 117 of the Magistrates Courts Act.”
In Makumbi v Katumba (MISCELLANEOUS APPLICATION NO. 316 OF 2014) [2014]

UGHCLD 26 (23 June 2014);
Lady Justice Mugyenyi stated inter alia that:
“Order 32 of the CPR makes provision for suits by or against minors or persons of unsound
mind. Order 32 rule 1 provides that suits by minors shall be instituted by the ‘Next Friend’ of
a minor pursuant to written authority by such Next Friend for that purpose. Order 32 rule
4(1) prescribes as persons competent to serve as Next Friend any adult of sound mind whose
interests are not adverse to those of the minor, and who is not a defendant in the matter for
which he acts as Next Friend. Order 32 rule 15 renders the foregoing rules applicable ‘to
persons adjudged to be of unsound mind and to persons who, though not so
adjudged are found by the court on inquiry, by reason of unsoundness of mind or
mental infirmity, to be incapable of protecting their interest when suing or being
sued.’ In the present case written authority by Mr. Patrick Makumbi, the Next Friend herein,
was duly appended to the plaint as Annexture ‘A’. The said Next Friend is a male adult, whose
mental state is not in issue herein. However, it was the respondent’s contention that the Next

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Friend has adverse interests to the applicant’s.
This court has carefully considered the available pleadings and consent judgment in the case
of Thomas Aligawesa Kabunga Makumbi vs. Patrick Makumbi & Ethel Makumbi
Civil Suit No. 55 of 1997, cited as proof of the Next Friend’s adverse interests. The plaintiff
in that case (who is the present applicant) sued the present Next Friend, Patrick Makumbi (first
defendant), and his wife, Ethel Makumbi (second defendant), for the recovery of property he had
given to the first defendant, but which was subsequently registered in the names of both
defendants. It is pleaded in paragraph 3 of the second defendant’s written statement of defence
in that matter that following her petition for separation, the present applicant and the Next
Friend connived to dispossess her of the property that was at the time jointly owned by herself
and her husband, Patrick Makumbi. In an ensuing consent judgment, Patrick Makumbi agreed
to compensate Ethel Makumbi for her interest in the said property. This court is unable to
deduce adverse interests between the present applicant and the Next Friend in that
matter. Clearly, the second defendant therein was firm enough in her view that they were
working in agreement to deprive her of property she held jointly with the Next Friend, that she
made a specific pleading to that effect. That suit per se is not sufficient reason to deduce
contrary interests between them for purposes of this application. I, therefore, find no proof of
any adverse interests between the present applicant and Patrick Makumbi for purposes of the
latter acting as the former’s Next Friend.
The question is whether there was need for such Next Friend in the first place, that is whether
the applicant had either been adjudged to be of unsound mind or, though not so adjudged, had
been found by the court on inquiry by reason of unsoundness of mind or mental infirmity, to be
incapable of protecting his interests. There is no evidence on record that the applicant has ever
been adjudged to be of unsound mind. Certainly he has not been so adjudged by this court. The
issue then would be whether he has been found by this court, on inquiry, to be incapable of
protecting his interests owing to unsoundness of mind or mental infirmity.
I must state from the onset that there is a distinction between unsoundness of mind and mental
infirmity. The Mental Treatment Act, Cap. 279 defines a person of unsound mind as ‘an idiot
or a person suffering from mental derangement.’ See section 1(f). Mr. Wakida referred this
court to two authorities from India in support of his argument that the court had not conducted

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an inquiry into the applicant’s mental state so as to determine whether or not suing through a
Next Friend was justified. In both cases afore-cited the matters under consideration therein
were brought under India’s Lunacy Act, section 3(5) of which reportedly defines a lunatic as
‘an idiot or person of unsound mind.’ To my mind, the terms ‘lunatic’ and ‘unsoundness of
mind’ appear to mean one and the same thing. In the case of Mytheen Kunju Abdul Salam
vs. Mohammed Kasim Ismail & Others (supra) the court drew a distinction between lunacy
or unsoundness of mind and weakness of mind or senility following old age, before granting the
appeal on the premise that the appellant therein had a history of insanity that necessitated an
inquisition.
The question of insanity, lunacy or unsoundness of mind did not arise in the instant
application. The matter before this court is an application through a Next Friend on account of
mental infirmity occasioned by old age. The Mental Treatment Act makes provision for the
adjudication of persons of unsound mind. Section 2 thereof specifically provides for an inquiry
into such persons’ state of mind. The Act is silent on the need for an inquiry with regard to
persons of mere mental infirmity such as is the case presently. Therefore, I would interpret
Order 32 rule 15 to mean that there is no need for an inquiry as provided under the Mental
Treatment Act in order to invoke the applicability of rules 1 to 4 of the said Order to persons
with mental infirmity. I would agree with Mr. Nkurunziza that medical evidence would be
sufficient to establish such mental infirmity. In the instant case, such medical evidence is to be
found in the medical report that was appended to the affidavit in rejoinder as Annexture
‘A’. This evidence is not disputed by the respondent who did, in paragraph 4 of her plaint in
Civil Suit No. 332 of 2007 – Josephine Katumba vs. Margaret Kyegombe, make specific
pleadings as to the applicant’s mental state.
In the result, I am satisfied that the Next Friend herein is properly before this court, and there is
no preliminary question to be tried in this matter.”
Where a mentally incompetent person without a representative commences proceedings, an

application should be made by a defendant to stay the proceedings until a next friend is
appointed. See: Iterura v Muguta (CIVIL APPEAL No. 5 OF 2006) [2009] UGSC 14 (7 January
2009).

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Where there is a doubt or dispute as to mental disability of a party, an application should be

made to the court to determine if incompetence exists. This was stated in the case of Porter V
Porter (1888) 37 Ch. D 420.
Where the party becomes mentally incompetent during the pendency of a proceeding, the
proceeding is stayed but not discontinued since the incompetent party is unable to revoke the
previous authority given to his counsel to commence or defend the proceeding.
See: Bakari v Akamba Republic Bus Service [1976] HCB 323
Where a next friend is appointed during the incompetence and later the incompetent person
recovers, he or she should apply for an order to discharge the appointment of a next friend or
guardian ad item.
3.4. COMPANIES AND STATUTORY PERSONS AS PARTIES

This is generally governed by Order 29 of the Civil Procedure Rules.
An incorporated company can be a party to an action. Any company incorporated by an Act

of parliament may sue or be sued in its corporate name. Before institution of an action
involving a company, it is advisable to ascertain from the Registrar of Companies or from the
Act of incorporation the proper and correct names for the company. If the correct name of the
corporate party is not used in the pleadings and summons, then it is possible that that
company may raise an objection that the corporate party sued was non-existent.
The change of a name of a company does not render defective any legal proceedings
instituted by or against the company. Any legal proceedings may be continued or
commenced against the company by its new name.
To bring a suit in the name of a company there has to be a special resolution first by the
company authorizing the institution of such a suit. However where a director Instructs an
advocate, then he is deemed to have authority to authorize the institution of such a suit even
if there is no resolution.
In the case Bugerere Coffee Growers v Sebadduka 1971 EA 147, court noted that for a
company to bring a suit, it is necessary that a resolution must be passed either at the general
board meeting or at the general assembly meeting and this must be reflected in the minutes.
This case further noted that where an advocate brings proceedings without the authorization

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of the company then he becomes personally liable to the defendants for costs of the action.
However in the case of United Assurance Company Ltd SCCA No. 1/86 Wambuzi, C.J, held
against the decision in Sebadduka’s case and noted that a resolution was only one way of
proving the decision of the Board of Directors and that unless the law specifically insisted on
a resolution, he was not prepared to insist on it. He noted that authority to bring an action in
the name of the company is not one of those instances where the Company’s Act required a
resolution.
Where a company is in liquidation or in receivership, the liquidator/receiver may sue in the

name of the company. A corporation which has ceased to have any juristic existence cannot
sue or be sued.
3.5. GOVERNMENT
All civil proceedings by the state are instituted and prosecuted in accordance with the
Government Proceedings Act.
Article 250(2) of the Constitution provides that:
“Civil proceedings by or against the Government shall be instituted by or against the Attorney
General; and all documents required to be served on the Government for the purpose of or in
connection with those proceedings shall be served on the Attorney General.”
Any person has a right to sue government, subject to the Government Proceedings Act.
Section 10 of the G.P.A. provides that:
“Civil proceedings by or against the Government shall be instituted by or against the Attorney
General.”
3.6. REPRESENTATIVE PARTIES
3.6.1. DECEASED PERSONS

A deceased person cannot commence or defend an action. In the case of Albert Efumbi v
Juma Okuni (HCT-04-CV-MA-0033-2012-Mbale), the applicant brought an application under
O.52 r. 2 and 3 of the Civil Procedure Rules and Section 98 of the Civil Procedure Act that the
order dismissing the appeal for want of prosecution be set aside with costs. When the matter
came for hearing, Counsel for the Respondents raised a preliminary objection that the
application was defective having been brought by a wrong party (a dead person). He quoted
section 11(7) of the Law Reform (Miscellaneous Provisions) Act Cap. 71;

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“the personal legal representative of the deceased is the only one empowered to defend actions
brought against the estate of a deceased person.”
He referred to Paul Nnyamarere v. Uganda Electricity Board H/C Misc. App.
290/2007, holding that;
“a non-existent entity cannot sue or be sued and such suit is a nullity.”
It transpired that the deceased’s heir wanted to reinstate the appeal and was in the process of
securing letters of administration.
Justice Henry I Kaweesa stated that:
“I agree with Respondent’s contention that the applicant in this matter is a dead person who
cannot come to court save by way of a legal representative. There is no such legal
representative and Wabwire the deponent of the affidavit in support of the application is an
unknown stranger to the proceedings. He has no letters of administration/probate. He is not
appointed legal representative, he therefore had no capacity to swear an affidavit in support of
an application seeking to reinstate an appeal of a deceased person.
The above finding builds into the other issues raised by counsel for respondents showing that
this application was brought in bad faith, in a deliberate desire to abuse the process of court, and
is to that extent bad in law.
I adopt and agree in total with all issues and legal points of law and fact pointed out by counsel
for respondents regarding this application. I do castigate counsel for applicants for insisting on
frustrating the process of justice since 1995, even after the numerous court interventions to try
to put this matter to rest.
As trained lawyers they should professionally handle matters; and advise clients on the
law. Section II of the Law Reform Provisions Act, The Succession Act, Administrator Generals
Act, the Civil Procedure Rules, the Civil Procedure Act, all contain legal guidance as to how
this matter ought to have been handled. In its present form, this application violates all known
rules of Civil Procedure and law and as pointed out by counsel, cannot progress beyond this
stage; it having been found to be a nullity, brought by a non-existing party and supported by
the wrong person. It is frivolous, vexatious, intended to delay and cause an abuse of the process
of justice.”

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In the case of an estate of a deceased person, administrators or executors become the proper
persons or parties to bring an action or to defend an action of a deceased person. The rules of
court provide that administrators or executors of the estate of a deceased person may sue or
be sued on behalf of the estate without joining any of the beneficiaries (Order 31 rule 1 CPR).
In the case of Naluyima Mable v The Registered Board of Trustees of Seventh Day Adventist
Church, CIVIL SUIT NO. 0073 OF 2011 (Land Division), Lady Justice Eva K. Luswata
observed that:
“It appears that according to Section 264 of the Succession Act Cap 162, where letters of
administration have been granted, no other person other than the one to whom the letters have
been granted shall have the power to sue or otherwise act as representative of a deceased
person. However as rightly put by counsel for the plaintiff, that section would apply if the
injury complained of is by or against the estate of a deceased person. It would not apply where a
beneficiary seeks to protect their interest in an estate for which a grant has or has not been made
as to hold otherwise would suggest that beneficiaries cannot sue erring administrators of estate
in which they have an interest. I do agree with that observation. I am fortified in this opinion
by the decision in Israel Kabwa Vs. Martin Banoba Musiga SCCA No. 52 of 1995 in
which Justice Tsekooko held that an heir’s interest to the estate does not depend on the grant
of letters of administration but on his being an heir.
In the instant case, the plaintiff is claiming recovery of the suit land as a beneficiary to the
estate of her late grandmother Abisage Bateesa who left it in charge of the plaintiff’s late father
Kyansimbi to keep in trust for the plaintiff until she would become of age. Firstly if we are to go
by the facts in the plaint, the suit land never belonged to Kyansimbi and therefore did not form
part of his estate. And father, going by the Israel Kabwa (supra) authority, the plaintiff is
entitled as a beneficiary to challenge the actions of both defendants for dealing in the suit land
contrary to the wishes of the deceased. I therefore agree with counsel for the plaintiff
that Section 264 of the Succession Act is inapplicable in the instant case and the plaintiff has
locus standi to institute this suit.”
The administrator of an estate of a deceased person is appointed by a grant of letters of

administration while the executor is named in a will and is appointed by court through the
grant of probate in accordance with the Succession Act.

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When administration of the estate is not taken out by the immediate members of the family as
specified in the Succession Act, a creditor or a person having a cause of action against the
estate may apply for the grant (See sections 202 and 203 of the Succession Act and section 4 of
the Administrator General’s Act).
Where there is more than one administrator all must be made parties (Order 31 rule 2 CPR).
In Israel Kabwa v Martin Banoba SCCA. No. 52 of 1995, the Supreme Court held that a
beneficiary of an intestate has capacity to sue in his own names to protect the estate for his
own benefit without first taking out letters of administration. The Supreme Court clarified
that a beneficiary can sue to protect the estate without first taking out letters of administration
in spite of section 191 of the Succession Act. See also: Wavamuno v Security (HCCS. NO.
269 OF 2015) [2017] UGHCCD 37 (23 March 2017).
3.6.2. TRUSTEES
A trustee is a person engaged in Administrative duties with regard to property entrusted to
him for the benefit of others. Trustees may be individuals or corporations who have been
given power so to act.
Section 1(3) of the Trustees Incorporation Act, Cap. 165 states that:
“The trustees or trustee shall thereupon become a body corporate by the name described in the
certificate, and shall have perpetual succession and a common seal, and power to sue and be sued in
the corporate name,....”
A person may be appointed a trustee under a will. Where a person is appointed in a dual
capacity of an executor and trustee, the estate of the deceased person is vested in the executor
first and after the fulfillment of his duties and an executor, he thereafter becomes a trustee to
carry out the trust set up under the will including the distribution of the estate to the
beneficiaries.
Another person may become a trustee under an express instrument or under the law of
Agency, bailment or trusts and also by law under the Public Trustee Act. Section 2 of the
Public Trustee Act, Cap. 161 states that;
“The public trustee shall be a corporation sole by the name of the public trustee and as such shall have
perpetual succession and an official seal, and may sue and be sued in his or her corporate name, but

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any instrument sealed by him or her shall not, by reason of his or her using a seal, be rendered liable to
higher stamp duty than if he or she were an individual.”
3.6.3. UNINCORPORATED ASSOCIATIONS

These may include clubs, trade unions, employer associations or General associations. An
association consists of a number of persons voluntarily united together by common interest in
order to promote certain objectives for their mutual benefit. A club is an association of
people, formed for a common purpose other than profit making, such as promoting
knowledge, art or social activities.
In such situations a member does not become liable to pay funds of a club beyond the
subscription fee required by the constitution of the club.
An association or club that has not obtained corporate or quasi corporate status by statute has
no legal existence apart from its members. It’s not a legal entity nor is it an association of
persons carrying on business in common with a view of making profit.
An unincorporated association is not a legal entity capable of suing or being sued. Any
proceeding against such an entity is a nullity and not a mere irregularity which may be
waived by filing the defence.
However trustees of the property of an unincorporated association may sue or be sued in
respect of the property vested in them since the trustees are considered to represent the
members’ beneficial interest in the property. See also: Nakawa/Naguru Residents Association
v AG and ULC, HCCS No. 146/2011 – commentary on P.Os
3.6.4. PARTNERSHIPS
Under Order 30 rule 1 CPRs, partnerships may sue or be sued in the firms’ name or
alternatively in the names of the individual partners. Whenever there is doubt about the
membership of the partnership, it is then advisable to issue court process against such a firm
in its firm name. See: Gatete & Another v Kyobe, SCCA No.7 of 2005.
With leave of the court, the judgment is generally enforceable against any other partner
within the jurisdiction but a foreign partner many have to be sued individually.
It is always good practice in drafting pleadings to state in the plaint more than the firm name
and to give the names of the partners followed with words “trading as” and then followed by

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the firm name.
3.7. ALIENS
These are governed by section 57 of the CPA which states that:
“When aliens may sue.
(1) Alien enemies residing in Uganda with the permission of the Minister, and alien friends, may sue
in the courts of Uganda as if they were citizens of a Commonwealth country.
(2) No alien enemy residing in Uganda without such permission, or residing in a foreign country, shall
sue in any such courts.
Explanation.—Every person residing in a foreign country the government of which is at war with the
Government of Uganda, and carrying on business in that country without a licence in that behalf
under the hand of the Minister, shall, for the purpose of subsection (2), be deemed to be an alien enemy
residing in a foreign country.”
3.8. Foreign states

These governed by section 58 of the CPA which provides that:
“When foreign States may sue.
(1) A foreign State may sue in any court of Uganda if—
(a) that State has been recognised by the Government;
(b) the object of the suit is to enforce a private right vested in the head of that State or in any
officer of that State in his or her public capacity.
(2) Every court shall take judicial notice of the fact that such foreign State has or has not been
recognised by the Government.”
4.0. REVISION EXERCISE

11) With reference to clear authorities, explain how you can institute and/or defend a case
brought against a minor.
12) Citing relevant authorities, explain what you understand by the term “locus standi” as
used in civil proceedings.
13) Jean Paul is a son to the Late Jean Paul Mukasa who died intestate on 20th September
2018. At the time of his death, Jean Paul Mukasa had filed HCCS No. 001 of 2018
against Mulamuzi Alex in the High Court of Uganda at Kampala (Land Division). This

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suit was for recovery of land comprised in Kibuga Block 1 Plot 2 Land at Lubaga
which the deceased alleges was transferred to Mulamuzi Alex fraudulently. The
deceased had only called two out of four of his witnesses. The case was adjourned for
further hearing on the 25th day of September 2018. Before the said date, the plaintiff
passed on. Jean Paul who is the closest son to the deceased wants to take over the
matter. He is before you for advise. Proceed and advise him on;
a) The capacity in which he can act if any; and
b) The proper steps he can take if any.
14) Discuss the legal capacity of the following persons;
d) Persons of unsound mind
e) Trustees
f) Deceased Persons
g) Aliens
h) Minors
i) Unincorporated Associations
j) Government
k) Companies and Statutory Corporations
<<<<<< End of Topic 03 >>>>>

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TOPIC 04: CAUSE OF ACTION
CONTENTS
1.0 Introduction
2.0 Definition of a Cause of Action
3.0 Objectives of the topic
4.0 Legal basis of a Cause of Action
5.0 What must court consider to determine a Cause of Action
6.0. Position of Courts on a Cause of Action
7.0. Specific Causes of Action
8.0. Cause of Action Elements
9.0. Joinder of Causes of Action
10.0. Misjoinder of Causes of Action
11.0. Effect of Failure to disclose a Cause of Action
11.1. Rejection of a Plaint
11.2. Dismissal of a Suit
12.0. Summary
13.0. Conclusion
14.0. Assignment/Revision Questions
1.0 Introduction
The document that is filed to commence a civil matter in the court system is called “a statement of
claim.” In the claim, the person bringing the matter to court, either the party wronged in a civil
action, or the plaintiff, outlines the alleged facts of the case, any theory by which alleged actions
are wrong or illegal, as well as the relief sought from the court. It is common for the facts of a case
to create more than one cause of action, each of which is addressed in the same claim.
It is further important to note that in every case which has to be tried, there are facts to be
established and the law which bears on those facts. Facts are also to be considered as material or
immaterial. Material facts are those which are essential to the right of action or defence; and
therefore of the substance of the one or the other, these must always be proved or immaterial,
which are those not essential to the cause of action and these need not be proved.

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In the legal system, a “cause of action” is a set of facts or legal theory that gives an individual or
entity the right to seek a legal remedy against another. This applies to the filing of a civil lawsuit
for such wrongs as property damages, personal injury, or monetary loss, as well as to criminal
wrongs such as battery, theft, or kidnapping. A cause of action may come from an act or failure to
act, breach of duty, or a violation of rights, and the facts or circumstances of each specific case
often have a significant effect on the case. To explore this concept, consider the following cause of
action definitions.
2.0 Definition of a Cause of Action

A cause of action can be defined as the fact or combination of facts which give rise to a right of
action.
According to Halsbury's Laws of England/Civil Procedure (Volume 11 (2009) 5th Edition, Paras.
21, it is stated that:
“'Cause of action' has been defined as meaning simply the facts the existence of which entitles one person to
obtain relief from the court a remedy against another person. The phrase has been held from the earliest time
to include every fact which is necessary to be proved to entitle the claimant to succeed, and every fact which
the defendant would have a right to dispute. 'Cause of action' has also been taken to mean that particular
act on the part of the defendant which gives the claimant his cause of complaint, or the subject matter or
grievance founding the claim, not merely the technical cause of action.
A cause of action has been defined in various cases as being “every fact which is material to be proved
to entitle the plaintiff to succeed” in Cooke v Gill (1873) LR 8 CP 107 to “every fact which it would be
necessary to support his right to the judgment of the court” in the case of Read v Brown (1888) 22 QBD
128.
Cause of Action further means a bundle of material facts which are necessary for the plaintiff to
prove in order to get relief in the suit. But it does not comprise every piece of evidence which is
necessary to produce in order to prove such material facts.
3.0 Objectives of this topic

By the end of this topic, you should be in position to address the following;
1) To define what a cause of action is under civil proceedings.

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2) To appreciate the purpose of cause of action in civil proceedings.

3) To know how to plead a cause of action in a plaint/statement of claim.
4) To understand the consequences of failure to plead a cause of action.
5) To determine what facts constitute a cause of action in a plaint.
4.0 Legal basis of Cause of Action
The beginning point is an examination of O.7 (1) (e) of the Civil Procedure Rules which provides
that;
‘the plaint shall contain the following particulars:
‘the facts constituting the cause of action and when it arose….’
From the statement of the law above, it is important to critically examine the meaning of the
phrase
‘facts constituting the cause of action and when it arose’
This phrase refers to two limbs;
i) facts constituting the cause
ii) when it arose.
The first limb addresses the detailed action points complained of while the second limb refers to
‘time frames’. To further place the above in context, the Oxford English Dictionary defines the
word ‘fact’ in the following ways:
 ‘a fact is a piece of information about circumstances that exist or events that have occurred’
 ‘a concept whose truth can be proved’
 ‘a statement or assertion of verified information about something that is the case or has happened’
 ‘an event or assertion of verified information about something that is the case or has happened’
 ‘an event known to have happened or something known to have existed.
From the above English definition, it is evidently clear that facts allude to detailed information
about an occurrence.
The underlying intention of the provision under O.7 r (1) (a) of the Civil Procedure Rules,
regarding ‘facts constituting the cause of action’ is that in order to determine if a plaint discloses a
cause of action, Court looks at the plaint only and nowhere else.
The same facts or the same transaction or event may give rise to more than one effective cause of
action.
A cause of action arises wholly or in part within a certain local area where all or some of the

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material facts which the claimant has to prove in order to succeed arise within that area.
A reasonable cause of action means a cause of action with some chance of success, when only the
allegations in the statement of a case are considered.”
The cause of action is the heart of the plaint, which is the pleading that initiates a lawsuit (See
Order 4 rule 1 CPR). Without an adequately stated cause of action the plaintiff's case can be
dismissed at the outset (See Order 7 rule 11(a) CPR). It is not sufficient merely to state that certain
events occurred that entitle the plaintiff to relief. All the elements of each cause of action must be
detailed in the plaint. The claims must be supported by the facts, the law, and a conclusion that
flows from the application of the law to those facts (See Order 7 rule 11(e) CPR).
The cause of action is often stated in the form of a syllogism, a form of deductive reasoning that
begins with a major premise (the applicable rule of Law), proceeds to a minor premise (the facts
that gave rise to the claim), and ends with a conclusion. In a cause of action for battery, the rule of
law is that any intentional, unpermitted act that causes a harmful or offensive touching of another
is a battery. This is the major premise and is stated first. Supporting facts, constituting the minor
premise, appear after the rule of law. For example, a statement of facts for a case of battery might
be "The plaintiff, while walking through ABC Store on the afternoon of March 11, 2019, was tackled by the
defendant, a security guard for the store, who knocked the plaintiff to the floor and held her there by
kneeling on her back and holding her arms behind her, while screaming in her ear to open her shopping bag.
These actions caused the plaintiff to suffer injuries to her head, chest, shoulders, neck, and back." The cause
of action concludes with a statement that the defendant is responsible for the plaintiff's injuries
and that the plaintiff is entitled to compensation from the defendant.
A cause of action can arise from an act, a failure to perform a legal obligation, a breach of duty, or
a violation or invasion of a right. The importance of the act, failure, breach, or violation lies in its
legal effect or characterization and in how the facts and circumstances, considered as a whole,
relate to applicable law.
A set of facts may have no legal effect in one situation, whereas the same or similar facts may
have significant legal implications in another situation. For example, tackling a shoplifting
suspect who is brandishing a gun is a legitimate action by a security guard and probably would
not support a claim for relief if the suspect were injured in the fracas. On the other hand, tackling

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a shopper who merely acts in a suspicious manner while carrying a shopping bag is a
questionable exercise of a guard's duty and may well give rise to justiciable causes of action.
5.0 What must court consider to determine a cause of action

As already noted, the law is that in order to determine if a plaint discloses a cause of action, Court
looks at the plaint only and nowhere else.
This is under O.7 r 4 (a) Civil Procedure Rules. This position was further explained in Kapeeka
Coffee Works Ltd. versus NPART Civil appeal No. 03 of 2000 (unreported).
If Court has to look at only the plaint, then the way the Plaintiff presents the facts becomes very
important in determining whether there is a cause of action or not. From the above definitions,
we have seen that the word ‘fact’ connotes inter-alia a statement or assertion of verified
information about something that is the case or has happened. In other words the Plaintiff must
state information regarding circumstances that exist or events that have occurred. This alludes to
detail. The statement of facts ought to contain those alleged mischief committed by the culprit
which gave rise to the needed redress.
In Narotham Bhatia & Hematini Bhatia v Boutique Shazin Ltd CACA No. 16 of 2009 the Court
of Appeal quoted with approval a passage in Mulla’s Code of Civil Procedure that;
“A cause of action means every fact which if traversed, it would be necessary for the
plaintiff to prove in order to support his right to a judgment of the court. In other words it
is a bundle of facts which, taken with the law applicable to them give the plaintiff a right
to claim a relief against the defendants. It must include some act done by the defendant
since (in) the absence of such an act, no cause of action can possibly accrue…….the cause
of action must be antecedent to the institution of the suit”.
Spry, VP in Auto Garage & Another v Motokov (No.3) [1971] E.A.514 at page 519 stated at page
520 that the matter as to whether a cause of action is disclosed is one to be decided by perusal of the
plaint and any annextures to it, not on a basis of evidence.
See also: Otucu & Another v Otwi & Others, High Court Civil Appeal 027 of 2007 (at Gulu)
JOSEPH MPAMYA VS AG (1996) 11 KALR 121 at p. 124 and HIGH COURT OF UGANDA
HOLDEN AT GULU CIVIL APPEAL NO. 8 OF 2007, MARY OCENG & 2 OTHERS VS SANTO

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ADOKO, UNREPORTED.
To explain the need for detail, Court held in Macharia versus Wanyoinke (1972) EA 264 K, that;
‘a pleading does not contain the material facts required if it only refers to them’
This means that the plaint must detail all material facts. Also in Kasule versus Makerere
University (1975) HCB 376, it was held that;
‘facts not pleaded in the plaint cannot be raised at the trial’.
Furthermore in Katahwire versus Lwanga (1988 – 90) HCB 86, it was held that;
‘a plaint which does not supply particulars is defective’.
In Candy versus Casper Air Ltd (1956) 23 EACA 13 (CA-K), it was held; ‘that as a general
rule, relief not founded on the pleadings will not be given.
6.0. Position of Courts on a Cause of Action

According to the leading case of Auto Garage v Motokov (1971) (No. 3) E.A. 314, there are 3
essentials to support or sustain a cause of action:
1) That the plaintiff enjoyed the right.
2) That the right has been violated.
3) That the defendant is liable
If any of these essentials is missing, the plaint or statement of claim is a nullity.
A Cause of action also means every fact which defendant will have a right to traverse.
In the case of Uganda Alluminium Ltd V Restuta Twinomugisha C.A. No. 22/2000 and also in
Tororo Cement Co. Ltd V. Frokina International Ltd, C.A. No. 21/2001 unreported, it was noted
by the Court of Appeal that a cause of action means every fact which is material to be proved to
enable the plaintiff succeed or every fact which if denied the plaintiff must prove in order to
obtain judgment.
The above issue was reiterated in the case of Kapeeka Coffee Works Ltd & Anor Vs NPART Court
of Appeal Civil Appeal No. 3/2000.
Before one can even sue, one needs to bear in mind the procedures involved and none is a
procedure more important than having a valid cause of action.
When a cause of action is founded in a determinant tort e.g. negligence, there are cornerstones on
which it will be based. Actionable negligence consists in the neglect of the use of ordinary care

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and skill towards a person to whom the defendant owes a duty of observing ordinary care and
skill.
Under Order 7 rule 11 (a) of the CPR provides that,

“A plaint shall be rejected where it does not disclose a cause of action.”
A plaint without a cause of action is nothing as there is no basis for locus for such party to be
before court in the first place.
In The Alifar Keya (1938) EACA 18, it was pointed out that:
“It must be noted that the court must look at the pleadings (plaint) while determining
whether a cause of action has been made out. That the plaintiff must clearly come out as the
person aggrieved by the violation of a right and the defendant as the person who is liable.”
In the Kenyan case of New Era Stores versus Ocean Trading Co. (1945) 24 – where a Plaintiff’s cause
of action or his title to sue depends on a statute, he must plead all facts necessary to bring him within that
statute.
7.0. Specific Causes of Action
There are many specific causes of action that may be alleged in a claim, the exact wording of
which may vary from one suit to another, and by area of law. Some of the most commonly cited
causes of action include:
 Breach of contract
 Fraud
 Torts (battery, assault, negligence, intentional or negligent infliction of emotional distress,
slander, invasion of privacy)
 Suits in equity (unjust enrichment, quantum meruit)
8.0. Cause of Action Elements
The facts a plaintiff must prove to succeed in each specific cause of action are referred to as
“elements.” Cause of action elements may vary greatly, or may overlap substantially, depending
on the circumstances of the case. For example, elements for certain causes of action may include:
 Breach of contract

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 Identity of all parties to the contract

 Identity of the breaching party
 The defendant did something, or failed to do something, required by the contract
 The defendant’s actions or inaction caused harm to the plaintiff
 Fraud
 A material representation was made
 The representation was false
 When the representation was made, the defendant knew it was false, or made a positive
or compelling assertion without having knowledge of the truth
 The defendant made the representation with the intent of causing the plaintiff to act
 The plaintiff acted, relying on the defendant’s false representation
 The plaintiff was damaged or suffered injury because of the act or representation
 Defamation
 A false or offensive statement, either verbal or written, about the plaintiff was made by
the defendant
 The defendant made such statement to a third party (someone other than the plaintiff)
 The defendant acted negligently or with malice in making such statement
 The plaintiff suffered damages, including damage to his reputation specifically caused
by the defamatory statement
 Intentional Infliction of Emotional Distress

 The actions or conduct of the defendant were extreme and outrageous
 The defendant acted intentionally and/or recklessly
 The defendant’s actions or conduct caused severe emotional distress to the plaintiff
9.0. Joinder of Causes of Action

A plaintiff may unite in the same suit several causes of action against the same defendant, or the
same defendants jointly; and any plaintiffs having cause of action in which they are jointly
interested against the same defendant, or the same defendants jointly may unite such causes of
action in the same suit. Where the causes of action are so united the jurisdiction of the court as
regard the suit shall depend upon the amount of the value of the aggregate subject matters at the
date of the institution of the suit. But this rule cannot permit the joinder of the claim exclusively

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triable by the Small Causes Courts. When such claims are joined with the claims triable by the
ordinary Civil Court the joinder is bad.
The facts or circumstances that entitle a person to seek judicial relief may create more than one
cause of action. For example, in the preceding example, the plaintiff might assert claims for
assault, battery, intentional infliction of emotional distress, and violation of Civil Rights. She
might also bring claims for negligent hiring (if the guard had a history of violent behaviour which
the store failed to discover) or negligent supervision. (When damages are caused by an employee
it is common to sue both the employee and the employer.) All these causes of action arise from
the same set of facts and circumstances but are supported by different rules of law and constitute
separate claims for relief.
Under Order 2 Rule 4 CPR, it is provided that:

“(1) Except as otherwise provided, a plaintiff may unite in the same suit several causes of action
against the same defendant or the same defendants jointly; and any plaintiffs having causes of action
in which they are jointly interested against the same defendant or the same defendants jointly may
unite those causes of action in the same suit.
(2) Where causes of action are united, the jurisdiction of the court as regards the suit shall depend
on the amount or value of the aggregate subject matters at the date of instituting the suit.”
The joinder of causes of action not only has an effect of reducing the number of actions but also
on who should be parties to an action.
In Mohan Musisi Kiwanuka V Asha Chand SCCA No. 14 of 2002, the appellant had made several
unsuccessful applications to have the Attorney General joined to the main suit on the ground,
inter alia, that it was necessary in order to enable the court to ‘effectually and completely
adjudicate upon and settle all issues involved’. This was never done. Mulenga, JSC in the lead
judgment noted that:
“I am constrained to observe here, that this background demonstrates how undue regard to
technicalities can obscure real issues, to the prejudice of substantive justice. It is a cardinal principle
in our judicial procedure that courts must, as much as possible avoid multiplicity of suits. Thus it is
that rules of procedure provide for, and permit where appropriate, joinder of causes of action and
consolidation of suits.
Under Order 2 rule 7, it is provided that:

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“Where it appears to the court that any causes of action joined in one suit cannot be conveniently tried or
disposed of together, the court may order separate trials or may make such order as may be expedient.”
10.0. Misjoinder of Causes of Action
Where several causes of action are joined together in the suit which cannot be joined there being
no common question of law and fact the suit is bad for misjoinder of causes of action or
multifariousness. All objections on the grounds of misjoinder of causes of action shall be taken at
the earliest possible opportunity and in all cases where issues are framed at or before the framing
of the issues unless ground for such objection has subsequently arisen and any such objection not
so taken shall be deemed to have been waived, it has, therefore been held that misjoinder of
causes of action being not an inherent lack of jurisdiction, if the objection is not raised at the
earliest possible opportunity it stands waived. The plea cannot be raised after remand, when the
same has not been taken at the earliest opportunity. So any order of the trial court after remand to
remove the lacuna is bad.
A plaintiff may under Order 2 rule 4 CPR join in an action, more than one cause of action and
when the joinder of any cause of action is contested by the defendant, the plaintiff must justify the
joinder or else the objection of misjoinder will be upheld by court. Order 2 rule 8 (1) provides
that:
“Any defendant alleging that the plaintiff has united in the same suit several causes of action which
cannot be conveniently disposed of together may at any time apply to the court for an order
confining the suit to such of the causes of action as may be conveniently disposed of together.”
Subrule 2 provides that:
“If, on the hearing of the application, it appears to the court that the causes of action are such as
cannot all be conveniently disposed of together, the court may order any of such causes of action to
be excluded, and consequential amendments to be made, and may make such order as to costs as may
be just.”
For example, in the case of Christopher Kayabeke V Annes Agaba, the plaintiff had two causes of
action properly brought before the court. One of them was the partial action by which he sought
court’s protection of his pecuniary interest in the company and a derivative action by which he
sought court’s protection for the good of the company generally against waste by the directors.
The court rightly entertained the matters and granted appropriate damages in respect of the two

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causes of action.
In the case of Metropole Pharmacy (U)Ltd V. Katumba (1975) H.C.B. 61, the High Court held that
where there is a misjoinder of causes of action, the plaint could be struck out and a separate trial
maybe ordered under Order 2 Rule 5 (now 7).
A joinder of causes of action can result in ouster of courts pecuniary jurisdiction. Where such
causes of action are united, the jurisdiction of the court shall depend on the amount or value of
the aggregate subject matter as at the date of instituting the suit (See Order 2 rule 4(2) CPR).
In the case of Kivamukutesa Consumer’s V. Ssebugwawo (1986) H.C.B. 61, it was held that where
after consolidation the value exceeds the jurisdiction of the court, such court should not proceed
with a trial after consolidation.
11.0. Effect of Failure to disclose a Cause of Action
11.1. Rejection of a Plaint
Rejection of Plaint takes place with the non-disclosure of cause of action.
Non-disclosure of cause of action: The court will be justified in rejecting the plaint for non-
disclosure of cause of action only when looking into the allegations of the plaint and assuming
them to be correct comes to the conclusion that the allegations do not disclose any cause of action.
A suit which discloses no cause of action is to be rejected as per O.7 r (11) (a) of the Civil
Procedure Rules. See Ainomugisho Winifred and 8 Ors vs Fatuma Dusto Nalumansi and 3 Ors
HCMA 2084 of 2016
11.2. Dismissal of the Suit
Where the court on the conclusion of the trial after considering all evidences and materials comes
to find that there is no cause of action for the suit, the suit is to be dismissed and not the plaint
rejected.
10.0. SUMMARY
In this topic, we have defined a cause of action, facts constituting cause of action, how it is
pleaded in an action, its relevance, the position of courts on a cause of action and the effect of

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failure to disclose a cause of action.
12.0. CONCLUSION
Cause of Action is cause for which the suit was brought. Cause of action is cause which gives
occasion for and forms the foundation of the suit. If that cause of action enables a person to ask
for a large and wider relief than that to which he limits his claim, he cannot afterwards seek to
recover the balance by independent proceedings. There are three important factors which cause of
action decides in each and every civil suit. They are:
a) Jurisdiction
b) Limitation
c) Rejection of Plaint
Cause of Action means the whole of the material facts which it is necessary for the plaintiff to
allege and prove in order to succeed. Cause of Action consists of a bundle of facts which give
cause to enforce the legal injury for redress in a court of law. The Cause of Action means every
fact, which if traversed, it would be necessary for the plaintiff in order to prove in order to
support his right to a judgment of the court. Cause of Action must be antecedent to the institution
of the suit. In Contracts regarding the purchase of goods, cause of action arises at any of the
following places:
a) Place of contract;
b) Place where contract was to be performed or performance completed thereof; and
c) Place where money was expressly or impliedly payable.
It can thus be seen that Cause of Action is fundamental to a Civil Suit and no civil suit can exist
without a cause of action taking place before it.
13.0. ASSIGNMENT/REVISION QUESTIONS

1) Explain what you understand by the term “Cause of Action” as used in Civil Proceedings.
2) With reference to decided cases, explain the significant elements a plaint must disclose to
constitute a valid cause of action under the law.
3) a) Discuss four significant specific causes of action under Civil Procedure.
b) Discuss the elements of each of the above causes of action.
4) Explain what you understand by the following terms as used in Civil Proceedings;

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a) Joinder of Causes of Action

b) Misjoinder of Causes of Action
c) The effect of (b) above to pleadings
5) With reference to clear authorities, discuss the effect of a plaint that does not disclose a
valid Cause of Action.
14.0. FURTHER READING/REFERENCES
 The CIVIL PROCEDURE ACT CAP. 71

 The CIVIL PROCEDURE RULES S.I 71-1
 Takwani, C.K., Civil Procedure, 4th Edition, Eastern Book Company, Kolkata, 1999
 Sarkar, Sudipto, Sarkar Code of Civil Procedure, V.K. Manohar (Ed.), 9th Edition, Vol. I,
Wadhwa and Company, Nagpur, 2001
 Mulla, The Code of Civil Procedure, Binod Mohan Prasad (Ed.), 17th Edition, Lexis Nexis
Butterworths, New Delhi, 2007
 Mallick, M.R., Mitra’s Civil Procedure, 4th Edition, Eastern Law House, Kolkata, 2002
<<<<<< End of Topic 04 >>>>>

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TOPIC 05: JOINDER OF PARTIES
CONTENTS
13.0 Introduction
14.0 Joinder of Parties
15.0 Grounds for Joinder of Parties
16.0 Conditions for Joinder of Parties under the Rules
17.0 Joinder of a Defendant (s)
18.0 Misjoinder and Non joinder
7.0 Joinder of Interveners
8.0 Striking Out, Substitution and addition of Parties
1.0 Introduction
Civil cases start with the institution of the case by one party against another party and the
competent court decides the rights and liabilities of the parties. The Civil Procedure Rules
provide for the parties to the suit and also contains provisions for addition, deletion and
substitution of parties, joinder, non-joinder and misjoinder of parties and objections to
misjoinder and non-joinder.
2.0 Joinder of Parties

The question of joinder of parties may arise either as regards the plaintiffs or as regards the
defendants. An act may be done by a single individual and may adversely affect another
individual. In that case, the question of joinder of parties does not arise at all. The question of
joinder of parties arises only when an act is done by two or more persons or it affects two or
more persons.
All persons may be joined in one suit as plaintiffs according the conditions required under
rule 1 of order 1. The conditions which are required to be fulfilled are that the right to relief
alleged to exist in each plaintiff arises out of the same act of transaction; and the case is such of
a character that, if such person brought separate suits, any common questions of law or fact
would arise. On the other hand, a person can be joined as a defendant according to the
provisions of rule 3 of order 1. The conditions to be required to be satisfied in the case of

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defendant are that the right to relief alleged to exist against them arises out of the same act of
transaction; and the case is of such a character that, if separate suits were brought against such
person, any common question of law or fact would arise.
3.0 Grounds for Joinder of Parties

Joinder of parties can be granted voluntarily or by order of court to parties in a proceeding.
These include inter alia;
1) Where there is a right to relief in respect of the same act or transaction or series of acts
or transactions whether joint, several or in alternative.
2) Where a common question of law or fact would arise if separate suits were brought by
the parties.
3) Leave of the court obtained: where the leave of court is obtained, parties may be joined
in an action.
4) Joint Claimants: where persons are joint claimants, they may be joined as plaintiffs.
5) Joint and Several Liability: where persons are jointly and severally liable for the relief
sought, they need not be joined as defendants.
6) Presence of a person promotes administration of justice: where the presence of a
person as a party to a proceeding may promote the convenient administration of justice,
then such a party may be joined to the proceedings.
7) Person’s presence is necessary: where a person’s presence is necessary as a party to
enable the court to effectively adjudicate upon the issues or where such a person is
required by statute, then such a person may be joined as a party.
8) Doubt against whom relief is sought: under Order 1 Rule 7, where there is doubt as to
the persons from whom the plaintiff is entitled to obtain redress, he may join two or
more defendants. However under Order 1 rule 2, court has power to order separate
trials if joinder of plaintiffs may embarrass or delay the trial.
4.0 Conditions for Joinder of Parties under the Rules
The conditions which are required to be satisfied or fulfilled under the rules include;
1) the parties must be seeking relief against the same defendant;

2) the right to relief alleged to exist against them arises out of the same act or transaction;

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3) the case is of such a character that, if separate suits were brought against such person, any
common question of law or fact would arise
In Benares Bank Ltd. V. Bhagwandas, the full bench of the High Court of Allahabad laid down
two tests for determining the questions whether a particular party is necessary party to the
proceedings:
a) There must be right to some relief against such party in respect of the matter involved in the
proceedings in question; and
b) It should not be possible to pass an effective decree in the absence of such a party.
See: Order 1 Rules 1 ,3 & 9 CPRs

In applying the rules, one must keep in mind that a person may be joined as a party in the
proceedings:
1) By a defendant after proceedings with leave of the court.
2) By a plaintiff after proceedings with leave of the court.
3) By the court on an application of any party or by an intervener or the court may on its
own motion add a party.
In joining parties the fundamental purpose is to enable court to deal with matters brought
before it and avoid multiplicity of pleadings.
A party joined to an action must have an interest in litigation. An original plaintiff with no
cause of action cannot join a person who may have a cause of action.
5.0 JOINDER OF A DEFENDANT

Order 1 rule 10 provides that:
“(1) Where a suit has been instituted in the name of the wrong person as plaintiff, or where it is
doubtful whether it has been instituted in the name of the right plaintiff, the court may at any stage of
the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary
for the determination of the real matter in dispute to do so, order any other person to be substituted or
added as plaintiff upon such terms as the court thinks fit.
(2) The court may at any stage of the proceedings either upon or without the application of either party,
and on such terms as may appear to the court to be just, order that the name of any party improperly
joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to

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have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary
in order to enable the court effectually and completely to adjudicate upon and settle all questions
involved in the suit, be added.
(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff
under any disability without his or her consent in writing to being added.
(4) Where a defendant is added or substituted, the plaint shall, unless the court otherwise directs, be
amended in such manner as may be necessary, and amended copies of the summons and of the plaint
shall be served on the new defendant, and, if the court thinks fit, on the original defendants.
(5) For the purpose of limitation, the proceedings against any person added or substituted as defendant
shall be deemed to have begun only on the service of the summons on him or her.”
Note should be taken that adding or substitution of parties is different from amendment of
pleadings though the former leads to the latter and not the reverse. A plain reading of order 1
rule 10 (1) suggests that courts will generally allow substitution of a plaintiff if there has been a
bona fide mistake in citing the wrong party.
A comparison of order 1 rule 10(1) and order 6 rule 19 is important as it puts the issue under
discussion in perspective. While order 1 rule 10(1) is strictly about substitution, order 6 rule 19
is about amendment of pleadings.
The rationale behind order 1 rule 10(1) which is to allow a party to sue the correct litigant and
to allow a party to add or remove a litigant which explains why the title of the order is;
“Suit in name of wrong plaintiff; addition and removal of parties”. See Coweser Medical Centre V
Uganda National Roads Authority HCMA 875 of 2016.
In Attorney General v SABRIC Building and Decorating Contractors Ltd (HCMA 299 of 2012);
Justice Musene considered several precedents where it was held that a suit brought by a
wrong party is a non-starter and that a suit by an un-incorporated body is a nullity.
In Pathak v Mrekwe (1964) EA 24, an action was filed in the name of the respondent 45 days
after her death. Subsequently, an application to amend the plaint by substituting the name of
another person as plaintiff was made under Order 1 rule 10 of the Indian Civil Procedure
Code, 1908 and the magistrate who was not informed that the plaintiff was dead when the

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action was filed, made the order sought. The defence pleaded, inter alia, that the suit was a
nullity, having been filed in the name of a deceased person. The magistrate however gave
judgment for the plaintiff for the sum claimed. On appeal, it was held that a suit instituted in the
name of a dead person is a nullity. The power conferred by Order 10 rule 1 to substitute a plaintiff
where a suit has been filed in the name of a wrong plaintiff can only be exercised where the “wrong
person” is living at the date of filing the suit and has no application where the “wrong person” is dead
at such date.
In Matharu v Italian Construction Company & Another (1964) EA 1, the plaintiff was
concerned in a traffic accident which also involved a vehicle then belonging to a firm known
as Italian Construction Company Limited of which the partners of the firm were the directors
and shareholders. When the plaintiff’s advocate prepared and filed a plaint for his client, he
showed the defendant company instead of the firm as a defendant, although the company was
not in existence at the time of the accident. Subsequently, an application was made for leave to
amend the plaint by substituting the firm for the defendant company in support of which it
was submitted that on the wording of the plaint, it was clear that it was the firm which it was
really intended to sue.
It was held that upon a fair reading of the plaint, it was the plaintiff’s intention to sue the
persons who were the partners in the firm at the material date. Further, that since the partners,
as directors of the limited company, had notice of the suit within the period of limitation, it
was just and proper to grant the application. Court followed the case of Saraspur
Manufacturing Co. Ltd v BB&C Railway Co. Where Macleod, CJ, said:
“It seems to me in the interests of justice that if it can be said that there has been a
misdescription of a party in the title of a plaint, the necessary amendment ought to be allowed,
if otherwise the rights of the parties would be prejudiced”.
The Court also referred to Radha Lal v E I Railway Co. Ltd, a case where the agent of the
railway company had been sued instead of the company and Mullick, Ag. CJ, said:
“If the plaintiff deliberately chooses to sue not the company but the agent he cannot by any decree which
he obtains in the suit bind the company. If, however, upon a fair reading of the plaint it is made out that
the description of the defendant is a mere error and that the company is the real defendant, then the suit
may proceed against the company.”

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Order 1 rule 13 of the CPRs provides that any application to add or strike out or substitute a
plaintiff or defendant may be made to the court at any time before trial by motion or summons
or at the trial of the suit in a summary manner.
Order 1 rules 10(2) & 13 of the CPRs require that applications to add or strike out or substitute
a plaintiff or defendant are to be made at any time before trial or at the trial of the suit in a
summary manner. The court has the discretion to add or strike out a party under the said rules
but this discretion is exercisable during trial. The word “trial” is defined by Black’s Law
Dictionary, 6th edition, at page 1504 as a judicial examination and determination of issues
between parties to an action, whether they be issues of law or fact, before a court that has
jurisdiction.
In Allah Ditta Quneshi Vs C. T. Patel [1951] EACA an application was made to join a party by
the plaintiff after the defence had closed their case. It was held that in refusing to amend, the
Judge exercised his discretion judiciously under Order 1 rule 9 of the Kenya Civil Procedure
Rules. This rule is equivalent to our Order 1 rules 10(2) & 13 of the CPRs. In Gulamabas V
Ebrahimji & Others [1971] EA, at page 22, where the substitution of a party was outside the 30
days period for filing an appeal, it was held that the inherent jurisdiction of court cannot be
invoked where an express remedy is no longer available on account of limitation.
6.0 Misjoinder and Non-joinder

“No suit shall be defeated by reason of the misjoinder or nonjoinder of parties, and the court may in
every suit deal with the matter in controversy so far as regards the rights and interests of the parties
actually before it.”
Misjoinder is regarded as a minor technicality which cannot defeat a suit. See: Allied Bank
International Ltd v Sadru Kala [2001-2005] HCB 79
See: GENERALLY Spry 2008, pages 13 to 16
In Kasumba & Anor v Jaffer & 2 Ors (CIVIL SUIT NO. 764 OF 2014) [2017] UGHCLD 15 (6
February 2017); J. Andrew K. Bashaija was of the view that;
Order 1 r. 3 CPRs provides that;

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“All persons may be joined as defendants against whom any right to relief in respect of or
arising out of the same act or transaction or series of acts or transactions is alleged to exist,
whether jointly, severally or in the alternative, where, if separate suits were brought against
those persons, any common question of law or fact would arise.”
Further, Order 1 r.9 CPRs provides that;
“No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the court
may in every suit deal with the matter in controversy so far as regards the rights and interests
of the parties actually before it.”
In the instant case, since the plaintiffs’ cause of action is against all the defendants; in order to
avoid a multiplicity of proceedings the misjoinder of the 2nd and 3rd defendants without
leave of court would not defeat the present suit. The preliminary point of law on that account
therefore lacks merit and it fails.
7.0 Joinder of Interveners

An intervener is one who on his own application and with leave of court is added to an action
pending between others. When added, the intervener may have the status of a party to the
action as a friend of the court.
Black’s Law Dictionary 9th Edition at Page 98 defines amicus curiae as follows:
“[Latin “friend of the Court”] A person who is not a party to a law suit but who petitions the
Court or is requested by the Court to file a brief in the action because that person has a strong
interest in the subject matter”
An intervener is normally referred to as amicus curie or friend of court and is a person who
calls the attention of court to some decision or point of law, but who does not become a party
to the action.
Amicus Curiae is sometimes referred to as a bystander and where a judge is doubtful or

mistaken in a matter of law, may assist the court. In the case of Re Nakivubo Chemists (U)
Ltd. (1977) H.C.B 311, court noted that, in the ordinary use the term amicus curiae implies a
friendly intervention of counsel to remind the court of some matter of law which has escaped

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its notice in regard of which it is in danger of going wrong.
The common law principle is that the parties to an action have the rights to litigate free of
interference by a stranger. Most recent cases have held that as an intervener or amicus curiae
should be restricted to those cases in which the court is clearly in need of assistance.
At common law, a court has inherent power to invite amicus curiae when it considers it
desirable. However, the person so called, ought not to be interested in the matter at hand,
except the Attorney General.
See: IGG & Jinja District Administration v Blessed Constructors Ltd (HCCA 21/2009-at
Kampala)
In Attorney General v. Silver Springs Hotel Ltd & Others, Supreme Court Civil Appeal No. 1
of 1989, the Supreme Court held that an appearance by amicus curiae had to be at the
invitation of Court, and not by application of a party seeking that status. The Court also
further held that the friend of Court must be a person without interest in the suit.
In Edward Fredrick Ssempebwa v. Attorney General, Misc Application No. 90/86, court
rejected an amicus curiae application on ground that the applicant had failed to point out what
point of law was overlooked and that the parties were ably represented.
We note that this Court’s holding in Attorney General v. Silver Springs Hotel Ltd & Others,
(Supra) is no longer good law. This is evidenced by the Court’s subsequent acceptance of
amicus applications brought before it. In NSSF & Another v. ALCON International Ltd,
Supreme Court Civil Appeal No. 15 of 2009, the Court considered an application for amicus
curiae and only rejected it on grounds that the applicant had not shown his expertise in the
matter and had not demonstrated that he would be of assistance to the Court in resolving the
dispute before it.
Furthermore, an application for amicus curiae was made in Uganda v. Thomas Kowyelo,
Constitutional Appeal No. 01 of 2012 subsequent to Court’s hearing of the appeal. However,
Court declined to hear the application on grounds that the hearing had already been closed
and Judgment in the appeal reserved.
In line with Article 132(4) of the Constitution which permits the Supreme Court to depart
from its previous decisions where it deems it right to do so, the SC has thus departed from its

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earlier decision of Attorney General v. Silver Springs Hotel Ltd (supra) on the law governing
amicus curiae which it held is no longer good law.
The participation of amicus curiae in litigation is a practice which is increasingly being

entrenched not only across common law and civil law jurisdictions but also in domestic and
international legal tribunals. See Prof. Oloka Onyango & 8 Ors vs Amama Mbabazi & 3 Ors
SCCA 02 OF 2016.
The practice has found place in the East African Court of Justice Rules of Procedure, which
allow participation of amicus curiae in court proceedings. Kenya provides for amicus
procedure in its 2010 Constitution whereas in South Africa, legislative provision was first
made through the Constitutional Court Rules in 1995.
Uganda is a member of the East African Community and that in more recent times; the East
African Court of Justice which was established under the East African Community Treaty has
rendered several decisions on amicus curiae arising from disputes involving Uganda as a
party. These include Secretariat of the Joint UNAIDS Programme on HIV/AIDS v. Human
Rights Awareness Promotion Forum (HRAPF) & Attorney General of Uganda, Application
No. 03 of 2015; Uhai Eashri, Health Development Initiative-Rwanda v. Human Rights
Awareness Promotion Forum (HRAPF) & Attorney General of Uganda, Applications No. 20 &
21 of 2015; and Dr. Ally Possi, Centre for Human Rights, University of Pretoria v. Human
Rights Awareness Promotion Forum (HRAPF) & Attorney General of Uganda, Application
No. 01 of 2015.
In Mumo Matemu & Others vs Kenya Section of the International Commission of Jurists &
Anor, Petition No. 12 of 2013, the Supreme court of Kenya set out a number of guidelines
court should look at in relation to the role of amicus curiae which should guide court in
determining whether to grant such an application or not. They include the following;
1) An amicus brief should be limited to legal argument;
2) The relationship between amicus curiae, the principal parties and the direction of amicus
intervention, ought to be governed by the principle of neutrality, and fidelity to the law;
3) An amicus brief should address point(s) of law not already addressed by the parties to the suit
or by other amici, so as to introduce only novel aspects of the legal issue in question that aid the
development of law;

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4) Where in adversarial proceedings, parties allege that a proposed amicus curiae is biased, or
where the Applicant, through previous conduct, appears to be partisan on an issue before the
court, the court will consider such an objection by allowing the respective parties to be heard on
the issue (see also; Raila Odinga & Others vs IEBC & Others; SC Petition No. 5 of 2013-
Katiba Institute’s Application to appear as amicus);
5) The court will regulate the extent of the amicus participation in the proceedings, to forestall the
degeneration of amicus role to partisan role;
6) In appropriate cases and at its discretion, the court may assign questions for amicus research
and presentation;
7) The applicant ought to be neutral in the dispute, where the dispute is adversarial in nature;
8) The Applicant ought to show that the submissions intended to be advanced will give such
assistance to the court as would otherwise not have been available. The Applicant ought to draw
the attention of the court to relevant matters of law or fact which would otherwise not have been
taken into account. Therefore, the Applicant ought to show that there is no intention of repeating
arguments already made by the parties. And such new matter as the Applicant seeks to advance,
must be based on the data already laid before the court, and not fresh evidence;
9) The Applicant ought to show expertise in the field relevant to the matter in dispute, and in this
regard, general expertise in law does not suffice (see also Re: Certain Amicus Curiae
Applications; Minister of Health and Others vs Treatment Action Campaign and
Others (CCT 8/02 [2002];
10) Whereas consent of the parties, to proposed amicus role, is a factor to be taken into
consideration, it is not the determining factor.
8.0 Striking Out, Substitution and addition Parties

See Order 1 rule 10 of the CPRs which states that:
“(1) Where a suit has been instituted in the name of the wrong person as plaintiff, or where it is
doubtful whether it has been instituted in the name of the right plaintiff, the court may at any stage of
the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary
for the determination of the real matter in dispute to do so, order any other person to be substituted or
added as plaintiff upon such terms as the court thinks fit.
(2) The court may at any stage of the proceedings either upon or without the application of either party,
and on such terms as may appear to the court to be just, order that the name of any party improperly
joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to

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have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary
in order to enable the court effectually and completely to adjudicate upon and settle all questions
involved in the suit, be added.
(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff
under any disability without his or her consent in writing to being added.
(4) Where a defendant is added or substituted, the plaint shall, unless the court otherwise directs, be
amended in such manner as may be necessary, and amended copies of the summons and of the plaint
shall be served on the new defendant, and, if the court thinks fit, on the original defendants.
(5) For the purpose of limitation, the proceedings against any person added or substituted as defendant
shall be deemed to have begun only on the service of the summons on him or her.”
See Coweser Medical Centre V Uganda National Roads Authority HCMA 875 of 2016
discussed already in these notes.

15) Define what you understand by the term “amicus curiae”
16) Discuss the grounds upon which court can grant an application for amicus curiae.
17) Distinguish between substitution of a party and amendment of pleadings.
18) Discuss the circumstances upon which court can join parties to a suit under the Civil
Procedure Rules.
19) Explain the legal effect of misjoinder and non-joinder of parties to the suit.
<<<<<< End of Topic 05 >>>>>

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TOPIC 06: LIMITATION OF ACTIONS
CONTENTS
19.0 Introduction
20.0 Meaning of Limitation
21.0 Basic Principles of Limitation
22.0 Effect of an action which is Statute barred
4.1 Time set by a Statute of Limitation cannot be extended
23.0 Running of Time and Commencement of Actions
24.0 Defences to Limitation
24.1 Disability
24.1.1 Effect of Disability
24.2 Acknowledgement
24.3 Part Payment
24.4 Limitations against Government and Scheduled Corporations
24.5 Fraud
24.6 Concealment
24.7 Mistake
24.8 Negotiations
7.0 Conclusion
1.0 Introduction
One of the most important tasks which an advocate needs to undertake when a client is giving
instructions or the details of his or her claim is to ascertain when the relevant limitation period
will expire. This assists the advocate in determining when he may file the necessary court
documents. Whenever an action is brought out of time, the defendant will have a defence of
limitation which can be raised at any stage of the proceedings.
2.0 Meaning of Limitation

The limitation period is a time limit during which an action may be brought. Thereafter, the
potential plaintiff is barred and may no longer bring an action.
The justification for limitation is that potential defendants should not indefinitely have to live
with the risk of legal action if for one reason or another, the potential plaintiff does not pursue
his or her remedy. Additionally, old actions are difficult to try when memories are crowded
and evidence has been probably lost.

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Statutes of limitation are in their nature strict and inflexible enactments. Their overriding
purpose is that litigation shall be automatically stifled after a fixed length of time irrespective
of the merits of a particular case.
The logic behind statutes of limitation was stated in the case of Birkett v James [1977] 2 All ER
801 by Lord Edmund-Davies between pages 815 – 816 as follows:
“Statutory provisions imposing periods of limitation within which actions must be instituted seek to
serve several aims. In the first place, they protect defendants from being vexed by stale claims relating to
long-past incidents about which their records may no longer be in existence and as to which their
witnesses, even if they are still available, may well have no accurate recollection.
Secondly, the law of limitation is designed to encourage plaintiffs to institute proceedings as soon as it is
reasonably possible for them to do so...
Thirdly, the law is intended to ensure that a person may with confidence feel that after a given time he
may regard as finally closed an incident which might have led to a claim against him...
The legislature must be taken to have sought—and achieved—a proper balance between all these
competing interests in enacting that, if actions are to be heard at all, they must be instituted within the
various specified periods from the accrual of the cause of action.”
The Limitation Acts in Uganda are the Limitation Act cap. 80 and the Civil Procedure and
Limitation (Miscellaneous provisions) Act cap 81. These laws impose a time limit upon an
existing right of action.
3.0 Basic Principles of Limitation

The determination of when time begins to run depends upon the date on which the cause of
action arises and the nature of the cause of action. In case of a right which is actionable
without damage being suffered, such as a contract, a cause of action will arise as soon as the
breach occurs. The notion of actionable damage was reiterated by the House of Lords in the
case of Johnston (Original Appellant and Cross-respondent) v. NEI International Combustion
Limited (Original Respondents and Cross-appellants) [2007] UKHL 39. Lord Hoffman,
delivering the leading judgment noted that:
“Some causes of action arise without proof of damage. Trespass and breach of contract are examples.
Proof of the trespass or breach of contract is enough to found a cause of action. If no actual damage is
proved, the claimant is entitled to nominal damages. But a claim in tort based on negligence is
incomplete without proof of damage. Damage in this sense is an abstract concept of being worse off,
physically or economically, so that compensation is an appropriate remedy. It does not mean simply a
physical change, which is consistent with making one better, as in the case of a successful operation, or

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with being neutral, having no perceptible effect upon one’s health or capability.”
The identification and classification of the cause of action can be of vital importance with
regard to limitation since a cause of action is the basic concept in determining the limitation
period.
For a cause of action to arise for limitation purposes, there must be competent parties i.e. there
must be a plaintiff who can succeed and a defendant against whom the plaintiff can succeed.
According to HALSBURY’S LAWS OF ENGLAND, 4 Edition Vol. 28 para 622, it is stated

thus:-
“Apart from any special provision, a cause of action normally accrues when there is in existence a
person who can sue and another who can be sued, and when there are present all the facts which are
material to be proved to entitle the plaintiff to succeed.”
In Bernard Tumuhimbise & Others v Attorney General & Another HC Civil suit No. 778 of
2003, it was held that:
“Once a cause of action has accrued, for as long as there is capacity to sue or be sued by the parties, time
begins to run as against the plaintiff, and the provisions of the Civil Procedure and Limitation
(Miscellaneous Provisions) Act as to limitation apply mutatis mutandis.”
See also: Lubowa V Makerere University SCCA No. 2 of 2011 regarding the need for all facts
necessary for the plaintiff to sue being present.
At common law, if a potential plaintiff is an enemy alien, no cause action can arise since he has
no standing to bring his or her action but as soon as he ceases to be an enemy alien, then he
may bring an action within the time required.
4.0 Effect of an Action which is Statute barred
When a plea of limitation is available to the defendant, it constitutes a substantive right which
should not be taken away from him or her (See: Order 6 rule 6 and Order 7 rule 6 CPRs).
In the case of John Oitamong v Mohammed Olinga [1985] HCB 86, Odoki J (as he then was).
held that:
“Limitation is basically a defence. It is a shield but not a sword. It simply means that the
extinction of stated claims, and rights of action are limited in point of time and are lost if not pursued

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within due time. The doctrine of limitation differs from the doctrine of acquiescence although both have
more or less similar effects. Acquiescence seems to be an equitable doctrine developed by the Courts to
temper the rigidity of the law and is depended on the rule of estoppel. The doctrine of estoppel prohibits a
party from proving anything which contradicts his previous acts as a declaration to the prejudice of a
party who relying upon them has altered his position. Both acquiescence and limitation destroy the
former owner’s right remedy. It is now well established that the Limitation Act applies to actions for
recovery of land under customary tenure.”
In the case of Mpiima v AG (1990-91) II KALR 55 at 57, the court held that court can in its
discretion take cognisance of the fact of Limitation even if it is not pleaded in the Written
Statement of Defence.
It is this basic attitude that underpins the policy which gives rise to the principle that ‘once
statute barred always statute barred’.
See: Arnold v Central Electricity Generating Board [1988] AC 228; Western Highland
Creameries Ltd & Another v Stanbic Bank (U) Ltd & 2 Others (HCCS 462 of 2011- Comm. Ct)
Under Order 7 rule 11(d) CPRs, a plaint shall be rejected where the suit is barred by
limitation.
In Uganda Railways Corporation v Ekwaru D.O AND 5104 Others, CA No. 185 of 2007 (CA);
[2008] ULR 319, it was held that if a suit is brought after the expiration of the period of limitation, and
this is apparent from the plaint, and no grounds of exemption are shown in the plaint, the plaint must
be rejected.
4.1 Time set by a statute of limitation cannot be extended by court
See: NSSF v Joseph Byamugisha T/A Byamugisha & Co. Advocates HC CIVIL APPEAL NO 13
OF 2013 regarding extension of time fixed by statute; Moses K. Katuramu v The Attorney
General and Another [1987] HCB 24, regarding being confined in prison and s.8 of the Civil
Procedure and Limitation (Misc. Provisions Act); Waibi v Byandala [1982] HCB 28 regarding
exemption from limitation in the case of beneficiaries.
In H. J. Stanley & Sons Ltd v Said Nasoor Zahor [1963] 1 EA 564 (High Court of Tanganyika

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at Dar-es-Salaam): The plaintiff sued the defendant for Shs. 45,896/19 as the balance found
due by the defendant on accounts stated orally on or about December 30, 1960, or,
alternatively, as the balance of the price of goods sold and delivered and damages for breach
of contract. The plaint averred that the defendant by letter dated August 1, 1961, had admitted
the claim and hence the claim was not time barred. The defendant denied that the letter was
an acknowledgment of liability within s. 19 of the Indian Limitation Act, 1908, and took a
preliminary objection that the action was time barred. The plaintiff submitted that the action
was not time barred on three grounds, namely, that there was an acknowledgment of liability
under s. 19, that the action was founded on accounts stated under art. 64 and that the action
was in respect of a mutual, open and current account under art. 85 in the First Schedule of the
Act. It was held that:
a) as there was no averment in the plaint that the action was in respect of a mutual open
and current account, the plaintiff company was debarred from alleging the existence of
such an account, and accordingly art. 85 was not applicable;
b) in the defendant’s letter of August 1, 1961, there was no admission of indebtedness
either for the amount claimed by the plaintiff in his letter of demand or of any sum
whatsoever; the letter could not be construed as anything more than an
acknowledgement that there had been a course of trading between the parties;
accordingly s. 19 of the Indian Limitation Act was not applicable;
c) where accounts have not been stated in writing and signed, art. 64 is not applicable.
Dukhi Sahu v. Mohamed Bikhu (8) applied;
d) an oral adjustment of accounts gives rise to a cause of action and an action on the oral
adjustment is governed by art. 115 of the First Schedule to the Indian Limitation Act,
1908. Jalim Singh v. Choonee Lal (9) applied;
e) the plaintiff was entitled to invoke art. 115 as furnishing a cause of action in this suit
and accordingly the action was not prima facie time barred.
5.0 Running of Time and Commencement of Actions

Once an action has accrued, as a general rule time begins to run provided that there are both
competent plaintiff and defendant. The position of the law as was stated in in F.X. Miramago
v. Attorney General [1979] HCB 24 is that the period of limitation begins to run as against a
plaintiff from the time the cause of action accrued until when the suit is actually filed, and not

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when service of the notice is effected.
In Madhvani International S.A. v Attorney General, C.A. Civil Appeal No. 48 of 2004, it was
held that it is the legal position that when a court is considering whether a suit is time barred
by any law or not, it looks at the pleadings only and no evidence is required.
The limitation of actions removes a plaintiff’s remedy and in some cases, his right at a fixed
period of time from the accretion of the cause of action. This therefore requires precise rules
for calculation of the period.
In addition sec. 38 (1) (b) of the Interpretation Act excluded a Sunday or a public holiday if
they occur at the end of the limitation period.
As a general principle, the courts will disregard parts of the day in calculating the expiry of the
limitation period. When the plaintiff pleads facts from which reasonable inferences can be
made that the suit is not time barred, then the issue of limitation becomes a triable issue which
should be tried and determined after hearing the evidence on the matter as it was held in the
case of SAYIKO MUROMA V YOBAN KUKU (1985) H.C.B. 68.
6.0 DEFENCES TO LIMITATION

The defences to limitation are available to any party who has been caught by the limitation
period.
Order 7 rule 6 of the CPRs provides that:
“Where the suit is instituted after the expiration of the period prescribed by the law of limitation, the
plaint shall show the grounds upon which exemption from that law is claimed.”
This provision was considered in the case of Mulindwa v AG [1985] HCB 68. However in
Katuramu vs. AG [1986] HCB 39; the Court of Appeal was of the view that failure to plead
disability in a plaint but in reply to a defence can still be considered. The court’s reasoning was
that a reply to a written statement of defence was part of the plaint and could therefore cure an
otherwise barred action.
6.1 Disability
One of the main defences to limitation is disability. According to section 21 of the Limitation
Act, if on the date when any right of action accrued for which a period of limitation is
prescribed by this Act the person to whom it accrued was under a disability, the action may be

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brought at any time before the expiration of six years from the date when the person ceased to
be under a disability or died, whichever event first occurred, notwithstanding that the period
of limitation has expired.
Under sec 1(3) of the Limitation Act, a person shall be deemed to be under a disability while
he or she is an infant or of unsound mind. Cross refer to: section 5 of the Civil Procedure and
Limitation (Miscellaneous Provisions) Act.
Infancy is another word used to mean a minor. The Constitution (Art. 257) and the Children
Act, 2016 (sec. 2) provide that children are persons under the age of 18.
A person is of unsound mind if he or she is by reason of a mental disorder incapable of

managing and administering his property affairs. Under section 1(4) of the Limitation Act, a
person shall be conclusively presumed to be of unsound mind while he or she is detained in
pursuance of any enactment authorising the detention of persons of unsound mind or criminal
lunatics.
See: Section (1) (f) of the, Mental Treatment Act Cap. 279 and section 113 and 117 of the
Magistrates Courts Act, Cap. 16.
6.1.1 Effect of Disability

Disability does not prevent the person affected from bringing or defending an action although
he or she may not do so on his or her own behalf. In case of a plaintiff who suffers from
disability, the action will be by a next friend as provided under Order 32 rules 1 and 2 and in
case of a defendant suffering from a disability by a guardian ad litem as provided under
Order 32 rule 3. Refer to Order 32 rule 15 CPRs for the extension of these provisions to persons
of unsound mind.
Where any right of action has accrued for which a period of limitation is prescribed, the
person under disability may bring an action within 6 years after ceasing to be under disability.
However, section 21(2) of the Limitation Act provides that:

“In the case of actions for damages for negligence, nuisance or breach of duty (whether the duty exists
by virtue of a contract or of provision made by or under an enactment or independently of any contract
or any such provision), where the damages claimed by the plaintiff for the negligence, nuisance or breach
of duty consist of or include damages in respect of personal injuries to any person—

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(a) subsection (1) shall have effect as if for the words “six years” there were substituted the words
“three years”.
If the plaintiff is not suffering from a disability when the cause of action arises, any subsequent
disability will not suspend the running of time. In addition where the plaintiff suffers from a
disability when his right of action accrues, ceases to do so but then becomes disabled again,
time begins to run as soon as the disability ceases and its subsequent recurrences do not
prevent time from continuing to run as was held in the case of Kirby v Leather [1965] 2 All ER
441; [1965] 2 Q.B. 367.
In case of Joweria Namaganda V A.G. (1996)2 KALR 83; Court held that disability is a triable
issue requiring both parties to the suit to bring necessary evidence in order to resolve the
issue of whether or not there existed disability.
6.2 Acknowledgement
Acknowledgment by the defendant to the plaintiff’s right will revive a cause of action. Under
section 22 of the Limitation Act, where any right of action has expired, it may be revived by
the acknowledgment of the rights of the plaintiff.
The learned editor of Rustomji on Indian Limitation Act (5th Edn.), says at p. 303:
“Acknowledgment of merely part of debt: In case of a debt there must be a clear and unambiguous
recognition of an existing debt or a part of it, or of a subsisting relationship of debtor and creditor. If
some debt is acknowledged it is immaterial that the correctness of the amount claimed is disputed in the
acknowledgment. An acknowledgment that some money is due is sufficient to take the case out of the
statute as to all that is due. The acknowledgment may be sufficient though it omits to specify the nature
of the right, but there must be a definite acknowledgment. The acknowledgment need not be expressed
but it must be made under circumstances from which the court can infer that the liability was
subsisting at the time of the acknowledgment.”
The learned editor of Chitaley and Rao (1938 Edn.), has this to say at p. 669:
“Acknowledgments of liability with reference to portion of claim made by the plaintiff effect: The section
will only apply to a case if it is shown that the acknowledgment of liability relied on relates to the right
claimed in the suit. Hence, where an acknowledgment of liability is made only with reference to a
portion of the claim put forward by the plaintiff, such acknowledgment will save limitation only with
regard to such portion and not with regard to the entire claim of the plaintiff.”

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At p. 650 of the same work it is said:

“An acknowledgment of liability necessarily implies a knowledge on the part of the person alleged to
make the acknowledgment that he is admitting something . . . Hence, in considering whether certain
words amount to an acknowledgment of liability it must be seen whether at the time of writing them the
writer had in his mind the question as to his liability . . . it is clear that whether a document contains an
acknowledgment of liability depends purely on the terms of the document and their construction by the
court. Where on a reasonable construction of a document it contains an express or implied admission by
the author of the document of a subsisting liability the document will operate as an acknowledgment of
liability under this section. Where the document does not contain such an admission it will not amount
to an acknowledgment under the section.”
The theoretical basis of the development of the concept of a promise to pay on the fact of
acknowledgement of the plaintiff’s rights is that if the acknowledgment has been made in
circumstances from which no promise to pay will be inferred, time will continue to run
uninterrupted. The law further provides in section 23(1) that any such acknowledgement
shall be in writing and signed by the person making the acknowledgement.
When a plaintiff has a claim which is statute barred and he intends to rely upon the
defendant’s acknowledgment, the acknowledgement should be pleaded in his plaint or
statement of claim. However, for a plaintiff to plead acknowledgment, it is prudent that the
defendant should plead the limitation defence in his or her pleading.
6.3 Part Payment

This is also provided for in section 22 of the Limitation Act. Payment may be made in both
money and money’s worth. Subsection 4 states that:
“Where any right of action has accrued to recover any debt or other liquidated pecuniary claim, or any
claim to the personal estate of a deceased person or to any share or interest in it, and the person liable or
accountable therefor acknowledges the claim or makes any payment in respect of the claim, the
right shall be deemed to have accrued on and not before the date of the acknowledgment or the
last payment; but a payment of a part of the rent or interest due at any time shall not extend the period
for claiming the remainder then due, but any payment of interest shall be treated as a payment in
respect of the principal debt.”
In the case of Scilendra Overseas Ltd v The Government of Sri Lanka (1977)1 K.LR. 565, court
noted that where a defendant admits to a claim in part but disputes the rest and makes

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payment of the sum admitted, this is taken to be a part payment of the total of the whole
claim. Therefore, the part payment made in this case was not in respect of the whole claim but
in respect of the disputed balance.
6.4 Limitation against Government and Scheduled Corporations

Section 3 of the Civil Procedure and Limitation (Miscellaneous Provisions) Act provides that:
“(1) No action founded on tort shall be brought against—
(a) the Government;
(b) a local authority; or
(c) a scheduled corporation,
after the expiration of two years from the date on which the cause of action arose.
(2) No action founded on contract shall be brought against the Government or against a local authority
after the expiration of three years from the date on which the cause of action arose.”
It should be noted however, that the Law governing limitation against government and other
related institutions is silent on the principle of acknowledgement or part payment.
In National pharmacy Ltd V. K.C.C. 1979 H.C.B. 256 the Court in resolving this issue noted
that a special Act prescribing time limit within which to bring actions against government,
Local authorities and scheduled corporations was silent with regard to section 23 of the
Limitation Act which provided for acknowledgment or part payment.
6.5 Fraud
Section 25 of the Limitation Act states that:
“Where, in the case of any action for which a period of limitation is prescribed by this Act, either—
(a) the action is based upon the fraud of the defendant or his or her agent or of any person through
whom he or she claims or his or her agent;
(b) the right of action is concealed by the fraud of any such person as is mentioned in paragraph (a) of
this section; or
(c) the action is for relief from the consequences of a mistake, the period of limitation shall not begin to
run until the plaintiff has discovered the fraud or the mistake, or could with reasonable diligence have
discovered it; but nothing in this section shall enable any action to be brought to recover, or enforce any
charge against, or set aside any transaction affecting, any property which—
(d) in the case of fraud, has been purchased for valuable consideration by a person who was

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not a party to the fraud and did not at the time of the purchase know or have reason to
believe that any fraud had been committed; or
(e) in the case of mistake, has been purchased for valuable consideration, subsequently to the transaction
in which the mistake was made, by a person who did not know or have reason to believe that the mistake
had been made.”
The question of what amounts to reasonable diligence was considered as being what the
plaintiff ought to do. The plaintiff is not required to do everything possible but only do what
an ordinary prudent person would do in regard to all circumstances in an action for fraud.
Such case must be wholly based on fraud. An action is based on fraud for this purpose when
and only when fraud is an initial element of the plaintiff’s claim.
In Kampala Bottlers V Damanico U Ltd S.C.C.A. No.22/92, the court noted that fraud must be
attributable either directly or by necessary implication to the person sued and such person
must be guilty of some fraudulent act or must have known of such act by somebody else and
taken advantage of such act.
6.6 Concealment
The notion of concealment by fraud extends to any case where the defendant may be said to
have acted dishonestly and unconscionably and this can include a situation where the
wrongful act is committed cunningly. In addition deliberate commission of wrong in which it
is unlikely to be discovered for some time amounts to deliberate concealment. In the case of
Shaw V. Shaw (1954) 2 Q.B 429 court noted that the mere silence by a defendant can equally
amount to concealment.
6.7 Mistake
This goal for extending the limitation period on account of mistake has not been properly
resolved in the courts of Law. It is necessary to distinguish cases where both parties are
mistaken from those where only one party is mistaken. In the former case, time will begin to
run as soon as the mistake takes effect and in the latter case time will not run until the party
seeking to set aside the transaction has knowledge of the mistake.
6.8 Negotiations
When parties to an action are in negotiation, it does not stop the time from running and the
parties should act prudently by lodging the case as they are negotiating. In the case of Peter

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Mangeni Trading as Makerere Institute of Commerce Vs. DAPCB S.C.C.A. No. 13/95, court
noted that where negotiations are going on, the limitation time continues to run and it is still
incumbent upon those who need to give documents to do so within the time allowed and they
are at liberty to seek adjournments for purposes of negotiations once the suit is filed.
Likewise under the Civil Procedure Rules, Court is enjoined to encourage out of court
settlement but this can only be done once the suit is filed and is pending before court (Refer to
Order 12 Rule 2 CPRs)
25.0 CONCLUSION
Limitation is a valid defence to actions if properly pleaded and successfully shown from the
circumstances of a prevailing case. The moment court finds out that the suit before it is time
bad, court is left with no option rather than dismissing the same. The only exception that exists
is when a plaintiff successfully pleads any of the defences to limitation as discussed above.

20) “The legislature must be taken to have sought—and achieved—a proper balance between all
these competing interests in enacting that, if actions are to be heard at all, they must be
instituted within the various specified periods from the accrual of the cause of action.” Per Lord
Edmund-Davies in Birkett v James [1977] 2 All ER 801 pages 815 – 816. Discuss the
above statement addressing your mind to the law governing limitation of actions in
Uganda.
21) Critically analyse the defences available to the limitation of actions in Uganda and how
they can successfully be pleaded.
22) Discuss the purpose of the law of limitation of civil actions in Uganda.
<<<<<< End of Topic 06 >>>>>

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TOPIC 07: PLEADINGS

CONTENTS
27.0 Introduction
28.0 Meaning of Pleadings
29.0 Objective of Pleadings
30.0 Types of Pleadings
30.1 Statement of Claim/Plaint
30.2 Written Statement of Defence and Counterclaim
30.3 A Reply to the Written Statement of Defence and Counterclaim
31.0 Presentation of Pleadings
32.0 General Principles Governing Pleadings
32.1 Pleadings should state facts and not the law
32.2 The facts stated should be material facts
32.3 Pleadings should not sate the evidence
32.4 The facts should be stated in a concise form
32.5 Other rules governing pleadings
33.0 Particulars in Pleadings
7.1 Further and Better Particulars
8.0 Departure from Pleadings
9.0 Advantages of Pleadings
10.0 Conclusion
1.0 Introduction
It is desirable and necessary in all cases that for a matter to be determined in court, it must be
formerly submitted to court. The defendant is entitled to know all that the plaintiff alleges
against him or her. The plaintiff is also entitled to know what the defendant’s defence is.
The defendant may dispute every statement made by the plaintiff or may be prepared to
prove other facts that will give the case a different turn. He or she may rely on a point of law
or on the claim. In all cases, before the trial, parties should know exactly what they are fighting
about. Otherwise, they unnecessarily labour and incur unnecessary expenses to procure

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evidence to prove at the trial facts which the opposite party concedes.
2.0 Meaning of Pleadings

Section 2 of the Civil Procedure Act defines pleadings to include “any petition or summons,
and also includes the statements in writing of the claim or demand of any plaintiff, and of the
defence of any defendant to them, and the reply of the plaintiff to any defence or counterclaim
of a defendant”.
In Odger’s Principles of Pleadings and Practice, 20th Edition, page 11, pleadings are defined
as statements in writing, served by each party alternately on his opponent, stating what his
contention will be at the trial, and giving all such details as his opponent needs to know in
order to prepare his case in answer”.
3.0 Objective of Pleadings

The whole objective of pleadings is to bring parties to definite issues and to diminish expense
and delay and to prevent surprise at hearing. A party is entitled to know the case of his
opponent so that he can meet it.
While considering the objective of pleadings the court in Interfright Forwarders (U) Ltd Vs
East African Development Bank SCCA No.33/1992 quoting Mumbejja Aida Nanozi Banoba&
Anor Vs Ssebaale Henry & 2 Ors HCCS No.219/08 (unreported) had this to say;
“The system of pleadings operates to define with clarity and precision the real matters in controversy
between the parties upon which they can prepare and present their respective cases and upon which
court will be called to adjudicate between them. Thus, issues are formed on the case of the parties so
discussed in the pleadings and evidence as directed at the trial and the proof of the case so set and
covered by the issues framed therein. A party is expected and bound to prove the case as alleged by him
and as covered in the issues framed. He will not be allowed to succeed on a case not so set up by him
and be allowed at the trial to change his case or set up a case inconsistent with what he alleged in his
pleadings except by way of amendment of pleadings.”
The function of pleadings is to, ascertain with precision the matters on which the parties differ
and those on which they agree and thus to arrive at clearly defined issues which both parties
desire a judicial decision. To arrive at this, pleadings must be exchanged between the parties
in accordance with the law and practice.

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4.0 Types of Pleadings
The common pleadings in an ordinary case are:
4.1 Statement of claim/Plaint
In this type of pleading, the plaintiff sets out his or her cause of action with all necessary
particulars as to his or her injuries and losses.
Black’s Law dictionary defines a plaint to mean a complaint or petition, especially one
intended to set aside an allegedly invalid testament. A person who files a plaint is referred to
as the plaintiff.
It’s a statement of claim, a document, by presentation of which the suit is instituted.
Section 19 of the CPA states that every suit shall be instituted in such manner as may be
prescribed by the rules. O. 4 r 1 of the CPRs stipulates that every suit shall be instituted by
presenting a plaint in the court.
A plaint may be an ordinary plaint (under Order 4 of the CPRs) or a specially endorsed plaint
(under Order 36 of the CPRs). The formalities to be complied with by a plaint are generally
provided for under Order 7 of the CPRs.
4.1.1 Contents of a Plaint
Order 7 rule 1 of the Civil Procedure Rules lay down the contents of a valid plaint.
Every plaint should contain the following particulars;
a) The name of the court in which the suit is brought;

b) The name, description and place of residence of the plaintiff, and an address of service;
c) The name, description and place of residence of the defendant, so far as they can be
ascertained;
d) Where the plaintiff or defendant is a minor or person of unsound mind, a statement to
that effect;
e) The facts constituting the cause of action and when it arose;
f) The facts showing that the court has jurisdiction;
g) The relief which the plaintiff claims;
h) Where the plaintiff has allowed a set off or relinquished a portion of his or her claim,

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the amount so allowed or relinquished; and

i) A statement of the value of the subject matter of the suit so far as the case admits.
The other requirement which is not included in the above order is that the plaint should be
signed by the person presenting it to court. This could be the party or its legal representative;
an advocate or donee of powers of attorney.
A plaint may be rejected under Order 7 rule 11 of the CPRs on the following grounds:
a) where it does not disclose a cause of action;

b) where the relief claimed is undervalued and the plaintiff, on being required by the
court to correct the valuation within a time to be fixed by the court, fails to do so;
c) where the relief claimed is properly valued but an insufficient fee has been paid, and
the plaintiff, on being required by the court to pay the requisite fee within a time to be
fixed by the court, fails to do so;
d) where the suit appears from the statement in the plaint to be barred by any law;
e) where the suit is shown by the plaint to be frivolous or vexatious.
Order 7 rule 12 provides that where a plaint is rejected the judge shall record an order to the
effect with the reasons for the order.
Under rule 13, the rejection of the plaint on any of the grounds herein mentioned before shall
not of its own preclude the plaintiff from presenting a fresh plaint in respect of the same cause
of action.
After the first pleading, namely the plaint, each party must do more than state his or her case.
He or she must deal with what is presented by the opponent. A party who wants to contest the
opponent’s case must deal with the other party’s case in three ways:
a) He or she can deny the whole or some essential part of averments of facts contained in
the pleadings. This is what is called traversing an opponent’s allegations and the party
will in essence be compelling the other to prove his or her allegation.
b) He or she may confess and avoid (confession and avoidance). In his or her defence, he
or she may allege facts which go to destroy the effect of the facts alleged in the plaint. He
or she may plead other facts but argue that it is the plaintiff in default.
c) A demurrer – This basically means pleading a point of law. The defendant may plead

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res judicata, limitation, e.t.c. particularly, the allegation may be traversed or objected to
as bad in law, or some collateral matter may be raised to destroy the effect of the
plaintiff’s pleading.
4.2 Written Statement of Defence (WSD) and Counterclaim
Under this type of pleading, the defendant deals with every material fact alleged by the
plaintiff in his/her statement of claim and also states new facts on which he or she intends to
rely. A defendant may also set up a cross claim known as a counter claim.
A written statement of defence is a reply to the plaint. It’s a pleading of the defendant wherein
he deals with/ answers every material fact alleged by the plaintiff in the plaint and states any
new facts in his favour.
A WSD may be filed by the defendant personally or by his/her duly constituted agent.
A WSD should not be a general denial of the allegations of the plaint but rather a reply to the
allegations stating a defence that particularly replies each averment.
O.8 rule 3 of the CPRs requires specific denial of every allegation in the plaint. Failure to do
so, the defendant is taken to have admitted the same.
It is not sufficient for a defendant in his WSD to deny generally the grounds alleged by the
plaintiff, but he must deal specifically with each allegation of fact which he doesn’t admit.
4.2.1 Condition Precedent (Order 6 Rule 5)
Order 6 rule 5 states that:

“Any condition precedent, the performance or occurrence of which is intended to be contested, shall be
distinctly specified in his or her pleading by the plaintiff or defendant, as the case may be; and, subject
thereto, an averment of the performance or occurrence of all conditions precedent necessary for the case
of the plaintiff or defendant shall be implied in his or her pleading.”
4.2.2 Denial must be specific

“It shall not be sufficient for a defendant in his or her written statement to deny generally the grounds
alleged by the statement of claim, or for the plaintiff in his or her written statement in reply to deny
generally the grounds alleged in a defence by way of counterclaim, but each party must deal specifically

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with each allegation of fact of which he or she does not admit the truth, except damages.”
See: Nile Bank v Kato
4.2.3 Evasive denial

“When a party in any pleading denies an allegation of fact in the previous pleading of the opposite
party, he or she must not do so evasively, but answer the point of substance. Thus, if it is alleged that he
or she received a certain sum of money, it shall not be sufficient to deny that he or she received that
particular amount, but he or she must deny that he or she received that sum or any part of it, or else set
out how much he or she received. If the allegation is made with diver’s circumstances, it shall not be
sufficient to deny it along with those circumstances.”
Failure to file a defence is taken to be an admission of the facts alleged in the plaint and a
default judgment could be entered or the suit may proceed as if a defence was filed.
In the case of Agadi Didi –Vs- James Namakaso Civil Suit No. 1230 of 1988, Justice Ntabgoba
(Principal Judge as he then was) held that; “...failure to file a defence raises a presumption or
constructive admission, of the claim made in plaint and the story told by the plaintiff, in the absence of a
defence to contradict it, must be accepted as the truth...”
4.2.4 When to file WSD
After summons have been duly served upon the defendant, the defendant should file his WSD
within 15 days from the date of receipt of the summons. The purpose of the rule is to ensure a
speedy disposal of cases.
Where the defendant defaults on the above rule, he should seek leave of court to file the
defence out of time. In some instances, counsel always consent to filing out of time however,
this is a wrong practice as counsel don’t have jurisdiction to amend the law of filing of
pleadings. The purpose of the granting leave is to avoid sacrificing fairness of trial and the
principles of natural justice in build in all procedural law. The process of justice may be
speeded up and hurried but the fairness which is a basic element of justice cannot be
permitted to be buried.
The application for extension of time to file a defence is by Notice of Motion.
4.2.5 Counterclaim

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According to the Oxford English Dictionary (2002) pg.5; a counterclaim may be defined as a
claim made by the defendant in a suit against the plaintiff.
It’s a claim independent of and separable from the plaintiff’s claim which can be enforced by a
cross action. A counterclaim can only be set up in respect of a claim or which a defendant can
file a separate suit. Therefore, a counterclaim is substantially a cross-action.
Order 8 rule 2 of the Civil Procedure Rules S.I 71-1 permits a defendant in an action to set up a
counterclaim against the plaintiff. The order further states that the counterclaim shall have the
same effect as a cross-action.
A counterclaim should not exceed the pecuniary jurisdiction of the court in which it’s filed.
4.2.6 Who may file a counterclaim?
A counterclaim is filed by a defendant to a suit against a plaintiff. A defendant cannot

counterclaim against a co-defendant.
The effect of a counterclaim is that it’s a cross-suit and court can pronounce a final judgment
both on the original claim and the counterclaim.
The plaintiff is the original suit has a right to file a reply/defence to the counterclaim.
Even if the suit of the plaintiff is stayed, discontinued, dismissed or withdrawn, the
counterclaim will be decided on merit and the defendant will have a right to get a decree for a
counterclaim. If the plaintiff doesn’t file a reply to the counter claim, it’s taken that he has
admitted to the claims therein.
In the case of Kabyanga V Sanyu HCCS NO. 304 of 2012 court held that;
“…Other than in the above circumstances, the law did not require a counterclaim to have a title where
the parties in the suit and counter suit are the same. Since a counterclaim is a suit by itself, it is
sufficient that the counterclaim contains the nature of the claim and the remedies sought. This in my
view has been satisfied by the 1st, 3rd & 4th defendants who on page l2 of their written statement of
defence clearly show a heading “COUNTERCLAIM; and thereafter succeeding paragraphs of their
claim and reliefs sought. In any case, plaintiff’s counsel did not indicate or show that the plaintiff had
suffered any prejudice or misunderstood the nature of and contents of the counterclaim only for the

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reason of the fact that the counterclaim did not bear a heading in which the parties are mentioned.”
A counterclaim should be clearly shown in the defence to be one with the heading and the
party against whom it’s brought. A defence should not be amended to bring a counterclaim
without leave of court.
It is a mandatory requirement under Order 8 r.7 CPRs that where a defendant seeks to rely
upon any ground as supporting a right of counterclaim, he or she must include the
counterclaim in his written statement of defence
In the case of Omumbejja Namusisi & 3 others V Makerere University HCCMA NO. 1199 of
2013 court held that;
“given the above position of the law, it is erroneous for the Applicant to submit that the counterclaim is
not a separate suit. It is further erroneous to maintain that a defence can be amended to incorporate a
counterclaim, and that an application in that case would be for leave to amend the defence to introduce a
counterclaim. On the contrary, it is settled law that a counterclaim is a separate action pursuant to
provisions of O.8 rr.12 and 13 CPRs which stipulates that a counterclaim can be excluded as being
more appropriate to be filed as a separate suit, on application of the plaintiff or defendant to the
counterclaim without even affecting the defence.”
See also: British General Insurance Co. Ltd. v. Moshanlul Sulank, CACA No. 30 of 1997;
Charles Lwanga v. Centenary Rural Bank, SCCA No.33 of 1999.
Additionally, since a counterclaim is a separate action, an application seeking leave to amend

the defence to introduce a counterclaim would in essence be seeking leave to amend pleadings
to introduce a new cause of action; which would be legally untenable. See: Nambi v. Bunyoro
General Merchants [1974] HCB 12. Such an application would not be granted because apart
from amounting to exonerating a party from complying with provisions of the law, it would
also involve a complete change in the nature of the action and set up an entirely different
claim from that the parties came to meet, and would require an entirely new counterdefence.
See: Biiso v. Tibamwenda [1991] HCB 92; Hill & Grant Ltd v. Hodson [1934] Ch. D 53.
The net effect is that the Applicant should seek leave of court to file a counterclaim out of time,
but not to amend the defence.

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“Where a defendant by his or her defence sets up any counterclaim which raises questions between
himself or herself and the plaintiff together with any other persons, he or she shall add to the title of his
or her defence a further title similar to the title in a plaint, setting forth the names of all the persons
who, if the counterclaim were to be enforced by cross-action, would be defendants to the cross-action and
shall deliver to the court his or her defence for service on such of them as are parties to the action
together with his or her defence for service on the plaintiff within the period within which he or she is
required to file his or her defence”.
4.3 A Reply to the Written Statement of Defence/Counterclaim
Under this type of pleading, the plaintiff deals with fresh facts raised by the defendant in his
or her defence. A reply is unusual except where a defendant sets up a counter claim. In
otherwords, if there`s no counterclaim, it is not a must that the plaintiff should reply a defence.
A plaintiff may reply if the matters canvassed in a defence requires a reply.
The plaintiff naturally begins with a plaint presented to court. On the plaint, the plaintiff lays
his or her claim.
The defendant may put in his or her defence which besides answering the plaintiff’s claim
may set up a counter claim or a set off.
The plaintiff may make a reply. Each of the alternate pleadings must in its own terms either
admit or deny the facts alleged in the last preceding pleadings. It may also allege additional
facts where necessary.
The points admitted by either side are extracted and distinguished from those in controversy.
Other facts not disputed may prove to be immaterial. Thus, litigation is limited to the real
matters in dispute.
Pleadings should be conducted so as to evolve clearly defined issues, definite propositions of

law and fact asserted by one party and denied by the other but which both agree to be the
points on which they wish to have the court decide in the suit.
5.0 Presentation of Pleadings

The plaintiff naturally begins with a plaint presented to court. On the plaint, the plaintiff lays

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his or her claim.
The defendant may put in his or her defence which besides answering the plaintiff’s claim
may set up a counter claim or a set off.
The plaintiff may make a reply to the defence and a counterclaim (if any). Each of the
alternate pleadings must in its own terms either admit or deny the facts alleged in the last
preceding pleadings. It may also allege additional facts where necessary.
The points admitted by either side are extracted and distinguished from those in controversy.
Other facts not disputed may prove to be immaterial. Thus, litigation is limited to the real
matters in dispute.
Pleadings should be conducted so as to evolve clearly defined issues, definite propositions of

law and fact asserted by one party and denied by the other but which both agree to be the
points on which they wish to have the court decide in the suit.
6.0 General Principles Governing Pleadings

6.1 Pleadings should state facts and not law
It’s the duty of the parties to state their facts and that of court to apply the law to the facts
pleaded. However, it’s the practice that in some pleadings like Chamber summons and Notice
of Motion, parties show under which law they are moving court. This is different from stating
the law in the facts of the pleading.
6.2 The facts stated should be material facts
Material facts means all facts upon which the plaintiff’s cause of action or the defendant’s
defence depends. In other words, all primary facts which must be proven in order to establish
the plaintiff’s right to relief claimed or the defendant’s defence in the defence.
In Bruce v Oldham’s Press Ltd [1936] 1 KB 712, Scott, LJ, said that:
“The word ‘material’ means necessary for the purpose of formulating a complete cause of action, and if
any one ‘material’ fact is omitted, the statement of claim is bad”.
In Derbyshire v Leigh [1896] 1 QB 554, 65 LJ QB 360, it was stated that:

“But in an action for libel or slander, the precise words complained of are material, and they must be set
out verbatim in the statement of claim. If the words taken by themselves are not clearly actionable, the

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plaintiff must also insert in his statement of claim an averment (with particulars in support) of an
actionable meaning which he will contend the words conveyed to those to whom they were established.
Such an averment is called an innuendo”.
Whether or not a fact is material will depend on the circumstances of a case and where there is
doubt, a fact should be included in the pleadings as the more facts included the better.
Where notice is an element of a cause of action, one must plead that notice. Rule 14 of Order 6
provides that:
“Wherever it is material to allege notice to any person of any fact, matter or thing, it shall be sufficient
to allege the notice as a fact, unless the form or the precise terms of the notice, or the circumstances from
which the notice is to be inferred, are material.”
For instance under Section 47 of the Bills of Exchange Act, it is a requirement to give notice of
dishonor to the person who issued the bill of exchange.
A party must state his or her case. The plaintiff is not entitled to any relief not pleaded in the
pleadings and not proved at the trial. In David Acar v Acar Aliro (1987) HCB 60, the court
found that a party who has not pleaded an issue or led evidence on it in a lower court cannot
raise it on appeal.
Under Order 6 rule 2, every pleading must be accompanied by a summary of evidence, list of
witnesses, list of documents and list of authorities. This is hinged on the fundamental premise
that there should be no element of surprise at the trial. Additional lists can be presented to the
court with leave.
6.3 Pleadings should not state the evidence
Evidence is given at the hearing of the matter and not its lodgment. In the pleadings, the facts
are stated and proved at the hearing.
Pleadings contain facta probanda; the facts required to be proved (material facts). At the hearing,
facta probantia; the facts by means of which they are to be proved
6.4 The facts should be stated in a concise form
Pleadings must be drafted with sufficient brevity and precision. The material facts must be
stated precisely, succinctly and coherently. The reason for pleadings to contain material facts is

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basically to maintain the principle of concise form. Otherwise, if every fact was to be stated,
then pleadings would be with endless pages.
However, parties should not that brevity should not be at the cost of excluding necessary facts,
but it does not mean niggling in the pleadings.
6.5 Other rules governing pleadings
Save for the aforementioned general principles, the Order 6 of the Civil Procedure Rules has
stated some rules to govern pleadings.
O. 6 rule 1 requires every pleading to contain a brief statement of the material facts on which
the party relies and where necessary be divided into paragraphs, numbered consecutively; and
dates, sums and numbers shall be expressed in figures.
In Shaw v Shaw [1954] 2 QB 429, 441, Lord Denning said that:
“It is said that an implied warranty is not alleged in the pleadings, but all the material facts are alleged,
and in these days, so long as those facts are alleged, that is sufficient for the court to proceed to
judgment without putting any particular legal label upon the cause of action”.
See also: Singlehurst v Tapscott Steamship Co. (1899) WN 133
Whenever a party is pleading, he must only set out the material facts. It is not sufficient to
plead generally.
Under O. 6 rule 2; every pleading should be accompanied by a summary of evidence, list of

witnesses, a list of documents and a list of authorities to be relied on.
In the case of Mwirumubi V Jada Ltd HCCS NO. 978 of 1996; court observed that O.6 rule 2
was put to avoid trial by ambush.
As a general rule, every pleading must be owned by the person filing it. Where the pleading is
drafted by the party, that party should sign the pleading and if drafted by an advocate, he/she
should sign it. See Order 6 rule 26 Civil Procedure Rules.
7.0 Particulars in Pleadings

The necessity for particulars springs from the need to have precise and concise pleadings.
They serve to supplement otherwise vague and generalized pleadings and are necessary for a

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fair trial.
Particulars also help to prevent surprise at the trial by informing the other party of the nature
of the case he or she is likely to meet and defend thus securing ground for an amicable
settlement of issues as opposed to warfare.
Order 6 rule 3 of the CPRs provides that:

“In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful
default or undue influence, and in all other cases in which particulars may be necessary, the particulars
with dates shall be stated in the pleadings.”
In Bisuti v Busoga District Administration, the court held that the function of particulars was
to carry into operation the overriding principle that litigation between the parties and
particularly the trial should be conducted fairly, openly and without surprise. They serve to
inform the other side of the nature of the case they have to meet as distinguished from the
mode in which the case is to be proved, to enable the other side to know what evidence they
ought to be prepared with and to prepare for trial and to prevent the other side from being
taken by surprise.
In Lubega v Barclays Bank, the Supreme Court held that particulars of fraud must be pleaded
as a legal requirement but that failure to do so is a mere irregularity curable by adducing
evidence.
In Kampala Bottlers v Damanico, court found that particulars are mandatory and failure to
state them was fatal.
7.1 Further and Better Particulars

Pleadings may be filed and exchanged between the parties, a plaint may be served on the
defendant who may serve a written statement of defence in turn but the other party may feel
that the opposite party’s pleadings lack the particulars required. In situations where a party
finds that the adversary’s pleadings are not clear, procedural law provides for methods of seeking
clarity.
This can be through seeking further and better particulars, discovery of documents or the
administration of interrogatories. The opposite party’s pleadings may be attacked in order to

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enable the party to acquire the necessary particulars required in the case.
Since a party cannot amend the other party’s pleadings, he or she can ask for an alteration or
clarification in the other party’s pleadings.

“A further and better statement of the nature of the claim or defence, or further and better particulars of
any matter stated in any pleading, may in all cases be ordered upon such terms as to costs and otherwise
as may be just.”
Initially, the unsatisfied party writes to the other requesting him to furnish him with material
facts. If after correspondence the particulars are not forthcoming, the party requiring
particulars may apply to court for an order requesting the opposite party to furnish further
and better particulars and the court may make such order.
The object of further and better particulars is to enable the other party to know what to expect
at the trial. The opponent should not be surprised.
8.0 Departure from Pleadings

“No pleading shall, not being a petition or application, except by way of amendment, raise any new
ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party
pleading that pleading.”
This is intended to prevent surprise at the trial. See: Darcy v Jones (1959) EA 121
It also follows that evidence at the trial must be given in relation to a party’s pleadings.
Various authorities are available where the issue of departure from pleadings has been dealt
with.
In Mohan Musisi Kiwanuka Vs. Asha Chand – SCCA 14/2002, it was observed that a party’s
departure from his/her pleadings is a good ground for rejecting the evidence and such a
litigant may be taken to be a liar.
Also see A. N. Biteremo Vs. Damascus Munyanda Situma – CA 15/91. The above decision
was also relied on in Sebughingiriza Vrs. Attorney General in HCCS 251/2012; where Justice
Monica Mugenyi held that a party who departs from his pleadings and gives evidence
contrary thereto would be deemed to be lying. See also: Mukasa v Bakireke [2009] 2 EA 255;

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Uganda Breweries v Uganda Railways Corporation [2002] 2 EA 634.
9.0 Advantages of Pleadings

a) The parties themselves get to know what exactly is in dispute and actually may find
that they are fighting over nothing.
b) The parties get to know what exactly will be brought at the trial and this may save
expenses in procuring evidence.
c) The mode of the trial may be determined from the pleadings which may raise a simple
point of law.
d) Pleadings help in final determination of the issues. The successors to the parties do not
have to fight over the same issue (see Sec.7 CPA).
10.0 CONCLUSION
Pleadings are very critical in Civil Litigation and Practice. They enable parties to the case
appreciate each other’s case. They promote the principle of a fair hearing by discouraging trial
by ambush and enable parties prepare for each other’s case. The Rules have laid out the
requirements for each particular pleading to pass the test of legality and tenability. We should
comply with these as failure to do so has far reaching effects.

23) Explain what you understand by the term pleadings and discuss the various principles
governing pleadings under our laws.
24) With reference to clear authorities, distinguish between a Written Statement of Defence
and Counterclaim.
25) Discuss the purpose of pleadings in Civil Litigation and practice in Uganda.
26) Explain what you understand by the following terms and when they apply in Civil
Proceedings:
a) Traverse
b) A demurrer
c) Evasive Denial
d) Further and Better Particulars
e) Departure from Pleadings
f) Facta Probanda and Facta Probantia
<<<<<< End of Topic 07 >>>>>

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TOPIC 08: AMENDMENT OF PLEADINGS

CONTENTS
4.0 Introduction
5.0 Principles Governing Amendment of Pleadings
6.0 Law on Amendment of Pleadings
3.1. Amendment with Leave
3.2. Amendment without Leave
4.0. Effect of Amendment of Pleadings
6.0. Summary
7.0. Conclusion
8.0. Assignment/Revision Questions
1.0 Introduction
Many a times, a party may find it necessary to amend his pleadings before or during the trial
of the case. This could be due to new information, interrogatories have been answered by the
opponent, new documents obtained all which necessitates reshaping the parties claim or
defence.
A party may find that his or her pleadings are not clear and may in such a case move court by
way of amendment. Sometimes, a need for amendment may arise from the other party
adducing a new issue.
The rationale of the amendment is that court should try the merits of the case that comes
before it and should consequently allow all amendments that may be necessary for
determination of the real question in controversy between the parties provided it does not
cause injustice or prejudice to the other side.
2.0 Principles Governing Amendment of Pleadings

It is settled law as cited in numerous decisions of court specifically Eastern Bakery Vs.
Castelino [1958] EA 451 (cited with approval in Huawei Technologies (U) Co. Ltd Vs. Evepeak

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Consults & Technical Services Ltd, HCMA No. 189 of 2011); where the Court of Appeal for
East Africa ruled that the principles that apply to the amendment of plaints are similar to
those that apply to the amendments of statements of defence. The court summarised the
principles thus;
a) Amendments to pleadings sought before the hearing should be freely allowed if they
can be made without injustice to the other side, and that there is no injustice if the other
side can be compensated by costs. See Tildesley vs. Harper (1) (1878), 10 Ch. D. 393;
Clarapide vs. Commercial Union Association (2) (1883), 32 WR 262.
b) The court will not refuse to allow an amendment simply because it introduces a new
case. See. Budding Vs. Murdoch (3) (1875), 1 Ch.D. 42. But there is no power to enable
one distinct cause of action neither to be substituted for another nor to change, by
means of amendment, subject matter of the suit. (See. Ma Shwe Mya vs. Maug Po
Hnaung (4) (1921), 48 I.A. 214; 48 Cal. 832).
c) The court will refuse leave to amend where the amendment would change the action
into one of a substantially different character. See. Raleigh vs. Goshen (5) [1898] 1 Ch.
73, 8.
d) Where the amendment would prejudice the rights of the opposite party existing at the
date of the proposed amendment, e.g. by depriving him of a defence of limitation,
accrued since the issue of the writ. See. Weldon vs. Neal (6) (1887) 19 QBD 394; Hilton
vs. Sutton Steam Laundry (7), [1946] KB. 65.
e) The main principle is that an amendment should not be allowed if it causes injustice to
the other side. (Chitaley P. 1313)
The Supreme Court of Uganda has equally followed the above principles. Odoki JSC (as he
then was), Manyindo DCJ (as he then was) and Tsekoko JSC (as he then was) in Gaso
Transport Services (Bus) Ltd, Vs. Adalla Obene [1990-94]1EA 88, which was also relied upon
by counsel for the applicant was of the view that;
a) The amendment should not work an injustice to the other side. An injury which can be
compensated by the award of costs is not treated as an injustice.
b) Multiplicity of proceedings should be avoided as far as possible and all amendments
which avoid multiplicity should be allowed.
c) An application which is made malafide should not be granted (emphasis by
underlining ours).

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d) No amendment should be allowed where it is expressly or impliedly prohibited by any

law (for example limitation of actions).
In Matagala Vicent v URA HCCMA 25 of 2013 (Comm Court) , Justice Hellen Obura observed
that: the summary of principles governing amendments which I agree with are that;
a) Amendment sought before the commencement of the hearing of the case which
pleadings the intended amendment relates, should be freely allowed if the amendment
can be made without prejudice to the other party. Application for amendment should
be made at the earliest stage of the proceedings;
b) Where an amendment is not any different in quality from the cause of action it should
be allowed. A court will therefore not exercise its discretion to allow an amendment
which substitutes a distinctive cause of action for another or to change by means of the
amendment the subject matter of the suit. The court will refuse to exercise its discretion
where the amendment would change the action into one of a substantially different
character;
c) No amendment would be allowed which would prejudice the rights of the opposite
party existing at the date of the proposed amendment. The amendment should not
work injustice to the other side. An injury which can be compensated by the award of
costs is not treated as an injustice;
d) An amendment would be necessary within the meaning of Order 6 Rule 19 of the CPRs
if it is for the purpose of determining the real questions in controversy between the
parties;
e) Multiplicity of proceedings should be avoided as far as possible and all amendments
which avoid such multiplicity should be allowed;
f) An application made malafide should not be granted;
g) No amendment should be allowed where it is expressly or impliedly prohibited by law
(e.g. Limitation).
3.0. Law on Amendment of Pleadings

3.1. Amendment with Leave
O.6 rule 19 gives Court discretion to allow amendment of pleadings at any stage. In the case
Alatico Store Ltd & Anor v James Mbabazi, court observed that amendment may be allowed
at any stage as long as it will not prejudice the other party and as long as the other party can

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be compensated by costs.
In the case of Edward Kabugo Sentongo V Bank of Baroda, an amendment will not be allowed
where it will substantially change the cause of action into a different one or will deprive the
defendant of an accrued right or it is made malafide.
3.2. Amendment without Leave

The law allows both the plaintiff and the defendant to amend his or her pleadings without
leave of court.

“A plaintiff may, without leave, amend his or her plaint once at any time within twenty-one days from
the date of issue of the summons to the defendant or, where a written statement of defence is filed, then
within fourteen days from the filing of the written statement of defence or the last of such written
statements”.
“A defendant who has set up any counterclaim or setoff may without leave amend the counterclaim or
setoff at any time within twenty-eight days of the filing of the counterclaim or setoff, or, where the
plaintiff files a written statement in reply to the counterclaim or setoff, then within fourteen days from
the filing of the written statement in reply.”
Order 6 Rule 22 provides for disallowance of amendment in the following terms:

“Where a party has amended his or her pleading under rule 20 or 21 of this Order, the opposite party
may within fifteen days from the date of service upon or delivery to him or her of the duplicate of the
amended document apply to the court to disallow the amendment or any part of it; and the court may, if
satisfied that the justice of the case requires it, disallow the amendment or any part of it or allow it
subject to such terms as to costs or otherwise as may be just.”
Order 6 rule 23 provides for an amendment to be filed and served. It states:

“Whenever any pleading is amended, the amended document shall be filed within the time allowed for
amending the pleading; and where the filing occurs before the date specified in the summons for the
appearance of or the entering of appearance by the defendant, then a duplicate of the amended document
shall be served upon the opposite party in the manner provided for the service of a summons, but where
the amended document is filed after that date, a duplicate of the amended document shall be delivered to

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the opposite party by the party filing.”

Rule 24 of Order 6 provides for reply to amendment. It states that:
“Where any party has amended his or her pleading under rule 20 or 21 of this Order, the opposite party
shall plead to the amended pleading or amend his or her pleading within the time he or she then has to
plead, or within fifteen days of the service or delivery of the amendment, whichever shall last expire; and
in case the opposite party has pleaded before the service or delivery of the amendment, and does not plead
again or amend within the time above mentioned, he or she shall be deemed to rely on his or her original
pleading in answer to that amendment.”
Order 6 rule 25 deals with failure to amend after order. It provides that:
“If a party who has obtained an order for leave to amend does not amend accordingly within the time
limited for that purpose by the order, or if no time is limited by the order then within fourteen days from
the date of the order, he or she shall not be permitted to amend after the expiration of such limited time
as aforesaid or the fourteen days, as the case may be, unless the time is extended by the court.”
Under Order 6 rule 26, every pleading shall be signed by an advocate or by the party if he or
she sues or defends in person.
4.0. Effect of Amendment of Pleadings

The case of Dhanji Ramji v. Malde Timber Company (1970) EA 422 is significant for the
holding that:
“While the amended pleading is conclusive as to the issues for determination, the original pleading may
be looked at if it contains matter relevant to the issues (dictum of Newbold, JA in Eastern Radio
Service v. R.J Patel (trading as tots) (1962) EA 818 applied).
Newbold, JA said this:
“Logic and common sense requires that an amendment should not automatically be treated as if it, and
nothing else had ever existed”.
Order 6 rule 30 (1) provides for striking out pleading. It states that:
“The court may, upon application, order any pleading to be struck out on the ground that it discloses no
reasonable cause of action or answer and, in any such case, or in case of the suit or defence being shown
by the pleadings to be frivolous or vexatious, may order the suit to be stayed or dismissed or judgment to
be entered accordingly, as may be just.”
In Blue Shield Insurance Company Ltd v Oguttu [2009] 2 EA 75, it was held that the power to

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strike out a pleading which ends in driving a party from the judgment seat should be used
very sparingly and only in cases where the pleading is shown to be clearly untenable.
5.0. SUMMARY
In this topic, we have defined discussed amendment of pleadings, when it can be done at or
during the course of proceedings, the principles governing amendment and the effect of
amendment of pleadings.
6.0. CONCLUSION
Courts are always enjoined to administer justice without undue regard to technicalities (see
Art. 126 (2) (e) of the Constitution. This brings in context accommodating parties to perfect
their respective cases if doing so doesn`t prejudice any party. Courts will always allow or
grant leave to a party to amend his/her pleadings to enable the interests of justice achieved
unless the circumstances suggests otherwise.
7.0. ASSIGNMENT/REVISION QUESTIONS
6) Discuss the law governing amendment of civil proceedings in Uganda.

7) Discuss the circumstances under which court may reject an application for amendment
of pleadings.
8) Discuss the timelines governing amendment of civil proceedings under the Civil
Procedure Rules.
9) What is the effect of amendment of pleadings under the law?
8.0. FURTHER READING/REFERENCES
 The CIVIL PROCEDURE ACT CAP. 71

 The CIVIL PROCEDURE RULES S.I 71-1
 Takwani, C.K., Civil Procedure, 4th Edition, Eastern Book Company, Kolkata, 1999
 Sarkar, Sudipto, Sarkar Code of Civil Procedure, V.K. Manohar (Ed.), 9th Edition, Vol. I,
Wadhwa and Company, Nagpur, 2001
 Mulla, The Code of Civil Procedure, Binod Mohan Prasad (Ed.), 17th Edition, Lexis
Nexis Butterworths, New Delhi, 2007
 Mallick, M.R., Mitra’s Civil Procedure, 4th Edition, Eastern Law House, Kolkata, 2002
<<<<<< End of Topic 08 >>>>>

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TOPIC 10: ISSUE AND SERVICE OF SUMMONS

CONTENTS I
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Definition of Summons
4.0 Issue and Service of Summons
4.1 Purpose of Summons
4.2 What items accompany Summons? (0.5 r. 2)
4.3 By Whom are Summons delivered & Served? (O.5 r.7 CPRs)
4.4 Service of Summons
4.5 Time within which to effect service
4.6 Mode of Service of summons
4.7 Substituted Service (O.5 r.18)
4.8 Service upon Corporations
4.10 Service upon Counsel
4.12 Service of Summons outside the Jurisdiction
4.13 The distinction between “effective service” and “good service” of summons
4.14 Procedure to be taken when the Defendant refuses to accept Service or cannot be found (0.5
r. 15 CPRs)
4.15 What happens when a Person/his/her agent is served with Summons? (0.5 r.14)
4.16 Requirement of an Affidavit of Service
4.17 What is composed of an affidavit?
5.0. Revision Exercise
1.0 INTRODUCTION
In this topic, we shall basically look at the issue and service of summons. In this respect, we
shall majorly examine the reasons attached to issuing and serving summons and the mode of
serving summons.

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2.0 OBJECTIVES
Having studied this topic, you should be able to know;
a) The meaning of summons.
b) The purpose of summons.
c) By whom summons are served.
d) The time frame within which service ought to be effected.
e) The mode of service of summons and procedure to be taken when the defendant refuses
to accept service or cannot be found
f) When to adopt substituted service?
g) What items accompany summons?
h) What happens when a person/his agent is served with summons?
i) The requirement of an affidavit of service
j) Service of out of jurisdiction
3.0 MAIN CONTENT

3.1 Definition of Summons
Bryan A. Garner in the Black’s law Dictionary, Eight Edition defines Summons as a writ or
process commencing the plaintiff’s action and requiring the defendant to appear and answer.
4.0 Issue and Service of Summons

Order 5 r 1 of the Civil Procedure Rules provides that when a suit has been duly instituted a
summons may be issued to the defendant;
a) Ordering him or her to file a defence within a time to be specified in the summons; or
b) Ordering him or her to appear and answer the claim on the day to be specified in the
summons.
Thus to issue a summons is composed of two sides. The second side being taken from 0.9r.1
which contains the mode of filling a defense, filing and delivering the written statement of
defence to an authorized officer, and the time within which to file a defence.
When one is served with summons, he or she must file a defence within fifteen days (Order 8
rule 1(2) CPRs).
Accordingly, the summons is referred to as summons to file a defence. According to section 20

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of the CPA, when a suit has been duly instituted, the defendant shall be served in a manner
prescribed to enter an appearance and answer the claim. The section has been in practice
overtaken by the rule which only talks about filing a defence.
4.1 Purpose of Summons

The purpose of summons is;
a) to notify the defendant that a suit has been filed,
b) to require the defendant to file a defence and
c) to notify the defendant of the consequences of failure to file a defence.
4.2 What items accompany Summons? (0.5 r. 2)
Under Order 5 rule 2 of the CPRs, the summons must be accompanied by a copy of the plaint, a
summary of evidence, list of witnesses, list of documents and list of authorities; except that an
additional list of authorities may be provided later with the leave of court. Note that given the
mediation rules courts are trying to enforce the practice of serving the summons and
accompaniments above together with mediation summaries.
Under Order 5 rule 1(5) and Order 5 rule 8, summons must be signed and also sealed.
Kaur v Auction City Mart [1967] EA 108

Jones, J. said that the requirement of signing and sealing the summons under Order 5 rule 1(3)
(equivalent of Order 1 rule (5)) of the Civil Procedure Rules are mandatory and failure to comply
with them renders the summons a nullity. The case dealt with a Notice of Motion below which
was written “This Summons….” the court also said that there is a rebuttable presumption that
the person signing summons as acting deputy chief registrar has been duly authorised.
In Nakitto v Katumba [1983] HCB 70, Kityo, J. said that “notice of motion” fell within the
meaning of suit as used and defined in section. 2 of the Civil Procedure Act and therefore non-
compliance with Order 5 of the Civil Procedure Rules made the application a nullity. This notice
of motion was neither signed by a judge nor such officer authorised nor sealed by the court.
In Kaigana v Dabo [1986] HCB 59, Karokora, J. said that although in practice notices of motion
carry signatures of the judge and the seal of the court, these are not a legal requirement and
omission does not render the application fatal. The applicant was properly before court as it was
duly signed by the applicant’s advocate who was moving the court to hear the application.

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See also: Nanjibhai Prabhudas & Co. Ltd v Standard Bank Ltd [1968] EA 670 (CA-K); Nyanzi v
Zaver (1983) H.C.B 52.
This position has however received mixed interpretations by different judges. Recently in
HUSSEIN BADDA VS IGANGA DLB & 4 ORS Miscellaneous Application No.0499 of 2011. At
Page 11 of his typed Ruling the learned Judge (Vicent Zehukhirize) had this to say:
“For an application for judicial review to be capable of giving rise to an application for temporary
injunction it must be properly before court. An application is valid when it has been signed by the Judge
or such an officer as he or she can appoint and it is sealed with a seal of the court within the
meeting of Order 5 Rule 1 and 5 of the Civil Procedure Rules.
The application is by its nature a summons 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 court that the application is capable
of validly giving rise to another application.”
The above position of the law was followed by my sister Judge Hellen Obura in SOROTI M.C.
VS PAL AGENCIES (U) LTD Miscellaneous 181 of 2012 (un reported).
See also Lukwago Elias Vs Attorney General & Anor HCMA No. 445 Of 2013 (Before: Hon
Justice Nyanzi Yasin)
Under Order 5 rule 2, service of summons shall be effected within 21 days of the date of issue.
The 21 days period can be extended by application to court within fifteen days of the expiry of
the 21 days.
Under Order 5 rule 3(a) and (b) the suit will be dismissed if no application has been filed and
the 21 days have expired.
4.3 By Whom are Summons delivered & Served? (O.5 r.7 CPRs)
As per O.5 r.7 CPRs, where court has issued a summons to a defendant, they ought to be
delivered for service to;
a) any person for the time being duly authorized by the court.

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b) an advocate or an advocate’s clerk who may be approved by the court generally to effect service of
court process.
4.4 Service of Summons

It is the responsibility of each party to prepare, produce and serve his/her pleadings upon the
opposite party. This is a fundamental feature of the adversarial system of civil litigation of
which parties have primary responsibility. Pleadings in courts of law are thus done inter partes.
In ordinary pleadings, a party who is dragged to court is issued with a summons with an
official order requiring a person to attend court either to answer to a charge or to give evidence.
The fundamental rule of service of summons is that service of summons must be personal
(Order 5 rule 10). See: Katukulu v Transocean (U) Ltd [1975] HCB 46, 47.
4.5 Time within which to effect service
Order 5 r.1 (2) gives the time within which service of summons should be effected. It states that;
(2) Service of Summons issued under subrule (1) of this rule shall be effected within twenty-one
days from the date of issue; except that the time may be extended on application to the court,
made within fifteen days after the expiration of the twenty-one days showing sufficient reasons
for the extension.
This is provided for under Order 51 rule 9 of the CPRs which provides that:
(1) Service of pleadings, notices, summonses, other than summonses on plaints, orders, rules and other
proceedings shall normally be effected before the hour of six in the afternoon, except on Saturdays when it
shall normally be effected before the hour of one in the afternoon.
(2) Service effected after the hour of six in the afternoon on any weekday except Saturday shall, for the
purpose of computing any period of time subsequent to the service, be deemed to have been effected on the
following day; service effected after the hour of one in the afternoon on Saturday shall for the like purpose
be deemed to have been effected on the following Monday.
Wasswa v Ochola [1992-93] HCB 103

Service was accepted on a Sunday. It was held that under Order 47 (now 59) rule 9 no service can
be effected on Sunday therefore such service was void. This decision is however per incuriam
because Order 51 rule 9 does not apply to service of summonses on plaints.

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4.6 Mode of Service of summons

Service of summons shall be made by delivering or tendering a duplicate of the summons
signed by the judge, or such officer as the judge appoints for this purpose, and sealed with the
seal of the court.
 Service of summons in cases where there are several defendants (O.5 r.9)
Except as otherwise prescribed, where there are more defendants than one, service of the
summons shall be on each defendant.
 The Preferred mode of service (0.5 r. 10)
Service of summons shall be made on the defendant in person, unless he or she has an agent
empowered to accept service, in which case service on the agent shall be sufficient. See the case
of KAINGANA JOY VS. PABO (1986) HCB 59 in which it was held that service must be
effected on the defendant in person.
In KIGGUNDU VS. KASUJJA (1971) HCB 164, it was held that if the process server does not
serve the defendant personally and serves the wife who refuses to sign, service is not effectual
therefore proper effort should be made to serve the defendant personally unless he cannot be
found and then service on the agent shall suffice.
In ERUKANA KAVUMA VS. MAHTA (1960) EA 305, It was held that the phase cannot be found
is not enough, all reasonable efforts and diligent search must be made for the defendant at his
place of work, at his usual residence, or such other place where he is known to be and when the
process server serves him in person, he must swear an affidavit of service stating that he
received a copy of the summons together with the plaint attached for service onto the
defendant. He must also state whether or not he knows the defendant. If he did not know the
defendant, he must state who introduced him to the defendant and how the introducer knew
the defendant. He shall further state that he effected service of the summons onto the defendant
who either accepted by signing on a copy or refused to sign the acknowledgement and he ends
his affidavit by stating that it is made in proof of service.
 Service on agent by whom defendant carries on business (O.5 r.11)
In a suit relating to any business or work against a person who does not reside within the local

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limits of jurisdiction of the court from which the summons is issued, service on any manager or
agent who at the time of service personally carries on that business or work for that person
within those limits shall be deemed good service.
 Service on agent in charge in suits for immovable property (O.5 r.12)
Where, in a suit to obtain relief respecting, or compensation for wrong to, immovable property,
service cannot be made on the defendant in person, it may be made on an agent of the
defendant empowered to accept service or on the agent of the defendant in charge of the
property.
Waweru v Kiromo (1962) EA 172

The defendant applied to court to set aside the service of summons on the ground that the
affidavit of the process server stated that the summons had been left with the defendant’s wife
with instructions that she should keep it for her husband as he was not present at the time. It
was held that as the process server made no enquiry about the defendant’s whereabouts, it
could not be said that he could not be found, so as to allow service on his wife under Order 5
rule 13.
These cases show that service on wives without due enquiry is defective service.
In Chakubhai v Chotobhai, service was effected upon the defendant’s agent. It was evident that
this agent was not authorised to accept service but that he had taken the summons to the
defendant. This came to light because the defendant had gone to see the defendant holding the
summons and the plaint and asking for more time. Judgment was entered in default and the
defendant brought an application to set aside the judgment on the ground of lack of service. The
ex parte decree was set aside but the judge declined to give the defendant the costs of the
application because he held the defendant’s attitude unworthy. The court referred to the case of
Cohen v Das which talks about the steps which can be taken before you can conclude that the
defendant cannot be found.
These cases require that full inquiries be made including when the person is expected to come
back.
 Service on agent or member of defendant’s family when defendant cannot be found

(O.5 r.13)

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Where in any suit the defendant cannot be found, service may be made on an agent of the
defendant empowered to accept service or any adult member of the family of the defendant
who is residing with him or her. Service could also be effected on any adult member of the
family of the defendant who is residing with him or her. See: Bulenzi v Wandera [1991] HCB 80;
Owraga v Owraga [1993] IV KALR 4
 Service of a defendant in prison. (O.5 r. 19)
Where the defendant is in prison, summons shall be delivered or sent by post to the officer in
charge of the Prison who shall deliver the same to the defendant for signing. Such signature
shall be evidence of service.
 Service on public officers and Soldiers (O.5 r. 20)
In the case of public officers, where the defendant is a public officer in civil employment, or is
the servant of a railway company or local authority, the court may if it appears more
convenient, send summons to the head of the office in which the defendant is so employed,
together with a copy to be retained by the defendant.
In the case of Soldiers, service shall be sufficiently made on the soldier’s commanding officer
together with a copy to be retained by the defendant. Note should be taken that under the
CPRs, a soldier does not include an officer.
4.7 Substituted Service (O.5 r.18)

Where the court is satisfied that for any reason the summons cannot be served in the ordinary
way, the court shall order the summons to be served by affixing a copy of it in some
conspicuous place in the courthouse, and also upon some conspicuous part of the house, if any,
in which the defendant is known to have last resided or carried on business or personally
worked for gain, or such other manner as the court thinks fit.
Substituted service under an order of court shall be as effectual as if it had been made on the
defendant personally. (O.5 r 18 (2))
O.5 r 18 (3), where the court makes an order for substituted service, it shall fix such time for the
appearance of the defendant as the case may require. See the case of Muzito vs. Njuki 2005
EALR Vol. 2 Pg.232

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The anomaly in the provision is that the court can under sub rule 3 fix such time as for filing a
defence.
In the case of Mugeni Geofrey V Ouma Adea George & Anor HC Election Petition. No. 0015 of
2011 (at Tororo), the court observed that:
“Rule 6 of the Parliamentary Elections (Election Petition) Rules, which I will hereinafter refer to as
PE(EP) rules, provides for service. In sub rule 3 thereof, service of the petition on the respondent is
personal. Sub rule 4 envisages a situation where personal service may fail, and hence makes provision for
substituted service. Sub rule 5 gives the court power to, ‘order that service be effected in any of the
ways prescribed by Order V of the Civil Procedure Rules for service other than personal
service,’
Order V of the Civil Procedure Rules (CPR) provides for service of summons. Rule 2 thereof
provides that every summons shall be accompanied by a copy of the plaint, a brief summary of
the evidence to be adduced, a list of witnesses, a list of documents and a list of authorities.
The service of summons other than personal service under the CPR which the PE(EP) rules
refers to is rule 18 of Order V which is headed ‘substituted service’. Under this rule, once court is
satisfied that summons cannot be served in the ordinary way, it orders that summons be served
by affixing a copy of it in some conspicuous place in the courthouse, and also upon some
conspicuous part of the house, if any, in which the defendant last resided or carried on business
or personally worked for gain, or in such other manner as court thinks fit.
One sees that the rules go out of the way to ensure that summons is served on the defendant. The reason
stems from the legal maxim that a party should not be condemned unheard. The Court of Appeal dealt
with the object of service of process in Besweri Lubuye Kiwanuka v. Electoral Commission & Daniel
Kokoola EPA No. 2 of 1999, and stated that this is;
‘To give notice to the party on whom it is made so that he or she might be aware of and be able to
resist that which is sought against him and where that has been done so that the court might feel
perfectly confident that service had reached him and that everything had been done that could be
required.’ See Kistler v. Tetner [1905] 1 KB 45; Diamond v. Croft 3 Ch. D. 512. Service of process
is required and goes to the root of our conceptions of the proper procedure in litigation. Craig v.
Kanssen [1943] KB 256.’”
The application for Substituted service is normally made by summons in Chambers ex parte.
(Order 5 rule 32).

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The applicant must have exercised all due and reasonable diligence. The application should
also specify the mode in which service is now sought to be effected.
The term “cannot be served in the ordinary way” includes the case where the defendant having
knowledge of existence of summons evades service.
The affidavit in support of such application must state the date when the summons was issued,
the occasion on which personal service of summons was attempted, the facts upon which
inference of evasion of service are based, the believed address of the defendant and the fact that
substituted service is the best method by which the summons will come within the defendant’s
knowledge.
After the order is made and complied with, service is deemed to be effective as if it was done
personally on the defendant - Order 5 rule 18(2) CPRs.
In Muzito v Njuki [2005] 2 EA 232 (CA-U), the respondent sought cancellation of the
appellant’s title to the land, comprised of Kyadondo Block 255 Plot 84 situate at Munyonyo,
Kampala District, on the grounds that the appellant was not a bonafide purchaser of the land.
Service of summons could not be effected upon the appellant as he lived and worked in
Sweden. The respondent therefore applied for and obtained leave to effect substituted service
by publication of the notice of the summons in one of the national daily newspapers, the New
Vision. When the appellant did not respond, the respondent obtained ex parte decree and the
appellant’s certificate of title was cancelled and the respondent’s name substituted as the
registered owner. On return to Uganda, the appellant sought to have the orders set aside on the
ground that he had not been duly served with the summons but it was dismissed by the judge,
thus the appeal.
It was held that:

“The substituted service could not have been effective on the appellant, who was living and working
outside the country. Service outside jurisdiction is provided for under Order 5, rule 23 of the Civil
Procedure Rules. It is not by publication in a national newspaper.” See also: Jaffer v Weraga [1975] 2
ULR 188; Mukasa v Matovu [1992-93] HCB 235
N.B The usual practice of substituted service however has been that of advertising the summons

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in a newspaper of wide circulation and affixing a copy of the summons on the court’s notice
board.
4.8 Service upon Corporations

The relevant order is Order 29 of the CPRs. What is meant by corporation is any legal entity not
being a natural person and being a creature of statute or of incorporation under the Companies
Act.
Where the service is upon a Corporation the summons will be served on the secretary or any
Director or other principal officer of the corporation.
Alternatively, service may be effected by leaving or sending a copy of the summons by post
addressed to the corporation at the registered office or if there is no registered office, then at the
place where the corporation carries business in accordance with O.29 r 2 CPRs.
Order 29 rule 2 recognises that the parent legislation of a statutory corporation may provide for
special rules for service on that corporation.
Order 29 rule 2 (a) of the CPRs provides that summons may be served on the secretary or any
director or other principal officer of the corporation. Under paragraph (b), service may be
effected by leaving the summons or by post addressed to the corporation at the registered office,
or if there is no registered office, at the place where the corporation carries on business.
For example under the Islamic University in Uganda Act, Cap. 131, s. 67 provides that:
“Any document may be served on the university by leaving it at the office of or by sending it by registered
post to the secretary.”
See also Section. 30 of the Management Training and Advisory Centre Act Cap. 134, which
provides that:
“Any document may be served on the centre by leaving it at or by sending it by registered post to the
director of the centre at the head office of the centre.”
In Musajjalumbwa v Bitumastic [1982] HCB 103, Service was effected upon a clerk at the
reception. The service was acknowledged. The affidavit of service did not say who the clerk was
or who pointed him out for the service. Default judgment was entered and an application was
brought to set it aside. It was held that the service was improper and it did not comply with the
equivalent of Order 29 rule 2. It was not stated who introduced the clerk nor was it stated that

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the clerk signed for the company. The judgment was set aside with costs.
In Ijjala v Energo Project [1988-90] HCB164, service was tendered to the project manager who
was identified by a police officer. The project manager instructed the secretary who took the
summons to the responsible officer who accepted service and put the company stamp. It was
held that no evidence was held to rebut the plaintiff’s assertion that the summons were left at
the place of business and therefore the service was good.
In Okurut v Lwasa et al [1988-89] HCB 164 ;

Service was effected upon the General manager’s Secretary. It was acknowledged with the
company’s stamp. It was held that the General Manager’s Secretary was not a Secretary within
the meaning of order 26 rule 2 (Order 29 rule 2).
In the case of Musajjalumbwa v Bitumastic [1982] HCB 103, the judge seemed not to have
addressed himself to Order 29 rule 2(b) which seems to have been satisfied since the summons
were left in the company office. It is also thought that the issue will depend on the affidavit of
service which should clearly indicate which order was being complied with.
See also: Matiansi Kanimba v Suryankati Patel HCCS 1145/1972; MB Automobiles v Kampala
Bus Service [1966] EA 480
4.9 Service upon a Partnership

A partnership is a special legal creature. Service upon it is provided for under Order 30 rule 3
which provides that:
“(1) Where persons are sued as partners in the name of their firm, the summons shall be served;
(a) upon any one or more of the partners;
(b) at the principal place at which the partnership business is carried on within Uganda upon any person
having, at the time of service, the control or management of the partnership business there; or
(c) as the court may direct.
(2) The service shall be deemed good service upon the firm so sued, whether all or any of the
partners are within or out of Uganda; except that in the case of a partnership which has been
dissolved to the knowledge of the plaintiff before the institution of the suit, the summons shall
be served upon every person in Uganda whom it is sought to make liable.”
4.10 Service upon Counsel

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This is provided for in Order 3 rule 4 which provides that:

“Any process served on the advocate of any party or left at the office or ordinary residence of the advocate,
whether the process is for the personal appearance of the party or not, shall be presumed to be duly
communicated and made known to the party whom the advocate represents, and, unless the court
otherwise directs, shall be as effectual for all purposes as if the process had been given to or served on the
party in person.”
See: Order 5 rule 11; Phillip Ongom v Catherine Nyero Owota SCCA No. 14 of 2002; Beliram v
Salkand [1954] 27 KLR 28; UTC v Katongole [1975] HCB 336
4.11 Service on Government

Service of process upon the government must be in accordance with section 11 of Government
Proceedings Act, Cap. 77 which states that:
“All documents required to be served on the Government for the purpose of or in connection with any
civil proceedings by or against the Government shall be served on the Attorney General.”
Under rule 5 of the Civil Procedure (Government Proceeding) Rules SI 77-1, it is provided that:
“(1) Service of a document on the Attorney General for the purpose of or in connection with civil
proceedings by or against the Government shall be effected by delivering or sending the document to be
served and a duplicate or copy of the document to the office of the Attorney General, and shall be deemed
not be complete until the Attorney General or another officer of the Government entitled to practice as an
advocate in connection with the duties of his or her office has endorsed an acknowledgement of service on
the document to be served.
(2) In this rule, “document” includes a notice, pleading, order, summons, warrant and any written
proceeding or communication.”
4.12 Service of Summons outside the Jurisdiction
This is provided for under Rule 22 which provides that:
“Service out of the jurisdiction of a summons or notice of a summons may be allowed by the court
whenever—
(a) the whole subject matter of the suit is immovable property situated within the jurisdiction, (with or
without rents and profits);
(b) any act, deed, will, contract, obligation or liability affecting immovable property situate within the
jurisdiction is sought to be construed, rectified, set aside or enforced in the suit;
(c) any relief is sought against any person domiciled or ordinarily resident within the jurisdiction;
(d) the suit is for the administration of the personal estate of any deceased person, who at the time of his or

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her death was domiciled within the jurisdiction, or for the execution (as to property situate within the
jurisdiction) of the trusts of any written instrument, of which the person to be served is a trustee, which
ought to be executed according to the law of Uganda;
(e) the suit is founded on any breach or alleged breach within the jurisdiction of any contract wherever
made which, according to the terms of the contract, ought to be performed within the jurisdiction;
(f) any injunction is sought as to anything to be done within the jurisdiction, or any nuisance within the
jurisdiction is sought to be prevented or removed, whether damages are or are not also sought in respect
thereof;
(g) any person out of the jurisdiction is a necessary or proper party to a suit properly brought against
some other person duly served within the jurisdiction; or
(h) the suit is founded on a tort committed within the jurisdiction”.
In FFSB Ltd (formerly known as Fortis Fund Services (Bahamas) Ltd) v Seward & Kissel LLP
[2007] 5 LRC 224; [2007] UKPC 16; The Fund was established in The Bahamas as an investment
scheme pursuant to the Mutual Funds Act 1995. H was a director of the Fund, which was
administered by FFSB, and S & K, a New York law firm, acted as legal adviser. The Fund went
into liquidation and subsequently issued a writ against, inter alia, FFSB, alleging that FFSB had
acted in breach of an administration agreement, statutory duties and a common law duty of
care by allowing certain investments. The Fund also issued a writ against H, alleging breach of
duty of care. FFSB filed its defence denying liability and issued a third-party notice against H,
claiming that, if FFSB were found liable, it would be entitled to a contribution or indemnity
from H as a joint tortfeasor. Subsequently FFSB applied ex parte for leave to issue a third-party
notice against S & K for service out of the jurisdiction at their New York offices. The application
was supported by an affidavit stating that if FFSB were liable to the Fund for breaches of duties
in, inter alia, tort, then S & K would also be liable because it was at all material times the Fund's
legal adviser and owed a duty to advise it as to the propriety of its investments. The application
was granted and the third-party notice was served on S & K, which then applied to discharge
the order giving leave to serve.
The Judge at first instance dismissed the application and S & K appealed to the Court of Appeal,
which set aside the leave to serve. FFSB appealed to the Privy Council. FFSB relied on Ord 11, r
1(h) of the Rules of the Supreme Court (which is equivalent to Order 5 rule 22 (h) of the Uganda
CPR), which provided that service outside the jurisdiction was possible 'if the action begun by

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the writ is founded on a tort committed within the jurisdiction'. S & K argued that FFSB was not
entitled to rely on para (h) for a number of reasons, including that FFSB's claim against S & K
was based on contribution, a statutory cause of action, not tort. Additionally, S & K claimed that
it was not a 'tortfeasor' in accordance with the s 2(1) of the Mutual Funds Act 1995 definition of
'a person who commits a ... breach of duty, arising independently of contract' because there had
been a contractual relationship between S & K and the Fund. S & K further submitted that there
was no evidence as to the content of its duty to the Fund, and that whether the tort was
committed in The Bahamas was itself questionable. FFSB also relied on Ord 11, r 1(j), which
provided that service outside the jurisdiction was permissible if in 'the action begun by the writ
... against a person duly served within the jurisdiction, a person out of the jurisdiction is a
necessary or proper party thereto'. On appeal, the Court of Appeal held that S & K was not a
necessary or proper party to the first third-party proceedings which FFSB brought against H, on
the basis that H and S & K were each allegedly liable for different types of damage.
In the Privy Council, all the arguments on Ord 11, r 1(h) raised by the respondents were
rejected. The P.C held that the judge at first instance correctly held that the requirements for
service out of the jurisdiction under that paragraph were satisfied. It was true that the claim for
contribution was a statutory cause of action and not a cause of action in tort. However, it was
founded on a tort and the basis of para (h) was that if someone committed a tort in The
Bahamas, it was reasonable that that person should have to answer for that tort in the Bahamian
courts. For the purposes of that rule, there was no reason why it should matter whether the
claim was made by the victim of the tort or by another tortfeasor seeking contribution.
Similarly, under the English legislation, a tortfeasor was simply someone who committed a tort.
It was unlikely that the Bahamian definition was intended to narrow the concept of a tortfeasor.
On the contrary, the purpose was to extend it to any cause of action in respect of the same
damage which was not ex contractu. In the instant case, the alleged cause of action in negligence
arose independently of contract because, although its content was determined by the
responsibilities undertaken by S & K under their contractual retainer, the liability did not
depend upon those responsibilities having been contractual. Additionally, at the interlocutory
stage it was impossible to determine anything definite about the nature of the duty that S & K
owed to the Fund. The only question was whether the allegation that S & K owed a relevant
duty in relation to the propriety of the investments was supported by evidence which disclosed

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a serious issue to be tried. In the instant case such an issue was disclosed. Finally, the evidence
demonstrated that it was at least arguable that the tort was committed in The Bahamas, where
the advice was, or should have been, received and acted upon. See also rules 28 and 30 and See:
Degefa v Bowerman [1994] IV KALR 27
4.13 The distinction between “effective service” and “good service” of summons
The supreme court of Uganda in Geoffrey Gatete and Angella Maria Nakigonya vs William
Kyobe SCCA NO. 07 of 2005 has settled this. Court distinguished relying on the Oxford
Advanced Learners’ Dictionary which defines the word “effective” to mean “having the desired
effect; producing the intended result”. In that context, effective service of summons means
service of summons that produces the desired or intended result. Conversely, non-effective
service of summons means service that does not produce such result. There can be no doubt that
the desired and intended result of serving summons on the defendant in a civil suit is to make
the defendant aware of the suit brought against him so that he has the opportunity to respond
to it by either defending the suit or admitting liability and submitting to judgment. The surest
mode of achieving that result is serving the defendant in person. Rules of procedure, however,
provide for such diverse modes of serving summons that the possibility of service failing to
produce the intended result cannot be ruled out in every case.
For example, in appropriate circumstances service may be lawfully made on the defendant’s
agent. If the agent omits to make the defendant aware of the summons, the intended result will
not be achieved. Similarly, the court may order substituted service by way of publishing the
summons in the press. While the publication will constitute lawful service, it will not produce
the desired result if it does not come to the defendant’s notice.
Although the service on the agent or the substituted service would be “deemed good service” on
the defendant, if it is shown that the service did not lead to the defendant becoming aware of
the summons, the service is “not effective” within the meaning of the law. (See Pirbhai Lalji vs.
Hassanali (1962) EA 306).
The word “deemed” is commonly used in legislation to create legal or statutory fiction. It is used
for the purpose of assuming the existence of a fact that in realty does not exist. In St. Aubyn (LM)
vs. A.G. (1951) 2 All ER 473, at p.498 Lord Radcliffe describes the various purposes for which the
word is used where, he says –

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“The word “deemed” is used a great deal in modern legislation. Sometimes it is

used to impose for the purpose of a statute an artificial construction of a word or
phrase that would not otherwise prevail. Sometimes it is used to put beyond
doubt a particular construction that might otherwise be uncertain. Sometimes it
is used to give a comprehensive description that includes what is obvious, what
is uncertain and what is, in the ordinary sense, impossible.”
The expression “service that is deemed to be good service” is so broad that it includes service that
might not produce the intended result, which therefore is not effective.
4.14 Procedure to be taken when the Defendant refuses to accept Service or cannot be found
(0.5 r. 15 CPRs)
Where the serving officer, after using all due and reasonable diligence, cannot find the
defendant, or any person on whom service can be made, the serving officer shall affix a copy of
the summons on the outer door or some other conspicuous part of the house in which the
defendant ordinarily resides or carries on business or personally works for gain, and shall then
return the original to the court from which it was issued with a report endorsed on it or
annexed to it stating that he or she has so affixed the copy, the circumstances in which he or she
did so, and the name and address of the person, if any by whom the house was identified and in
whose presence the copy was affixed.
4.15 What happens when a Person/his/her agent is served with Summons? (0.5 r.14)
Where a duplicate of the summons is duly delivered or tendered to the defendant personally or
to an agent or other person on his or her behalf, the defendant or the agent or such other person
shall be required to endorse an acknowledgement of service on the original summons; except
that if the court is satisfied that the defendant or his or her agent or such other person on his or
her behalf has refused so to endorse, the court may declare the summons to have been duly
served.
4.16 Requirement of an Affidavit of Service
Under O.5r.16, the serving officer is required to make an affidavit of service stating the manner
and time when summons was served, and the name and address of the person, if any,
identifying the person served and witnessing the delivery or tender of summons.

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NB: For a precedent on an affidavit of service, refer to form 9 of Appendix A.
Order 5 rule 16 provides for the affidavit of service. After the process server has served the
summons, he or she is required to annex the affidavit of service. The format of the affidavit is to
be found in Appendix A Form 9.
 The first paragraph states who the deponent is
 The second states that he collected the summons from the court on such and such a day
 The third paragraph states the manner in which the defendant was served and how the
defendant was identified.
In Omuchilo v Machiwa (1966) EA 229, the process server was shown the defendants house at
10.00 am. The defendant was not there and the server fixed the summons on the door
purportedly in pursuance to Order 5 rule 15. An affidavit of service was subsequently entered.
An application was brought to set aside judgment for the plaintiff. It was held that before
service can be effected under rule 15, the process server must first use all and due reasonable
diligence to find the defendant or any of the persons mentioned in rules 12 and 13 and it is only
after using such diligence, if none can be found that he can affix a copy of the summons on the
premises full particulars of which should be given. The judge also commented on the defects in
the affidavit of service. He said that it did not mention the person who witnessed the affixing of
the summons and further that although not required by the rules, that the affidavit should state
the town, street or other particulars of the premises to which the summons were affixed so as to
show that the premises were within the jurisdiction of the court. Judgment was set aside and the
property ordered to be attached was returned.
That case followed Erukana Kavuma v Metha (1960) EA 305; The process server was told that the
defendant was in India. He immediately effected service on the defendant’s wife and default
judgment was entered. The judge was considering order 5 rule 13 which states that when in any
suit the defendant cannot be found, service can be made on an agent or an adult member of the
family residing with him. The question was whether the defendant could not be found. The
judge said that it was an inadequate ground for saying that the defendant could not be found in
the absence any enquiry as to the defendant’s address in the country he had gone to, the
duration of his stay and the likely dates for his return. The judge said that without these you

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cannot say that the defendant cannot be found. The ex parte decree was set aside.
See also: Zakaliya Kiggundu v Leo Kasujja (1971) HCB 164
In M.B. Automobiles V Kampala Bus Service (1966) E.A 480, It was held that disclosure of the
name and the place of the person who identifies the defendant and witnesses the delivery or
tender of the summons to the applicant at the material time is a statutory duty under order 5
rule 17. Court noted that failure to record the name and address of the person, identifying the
person to be served renders the affidavit of service incurably defective.
The process server must know the person being served and must indicate how he came to know
him or if he is directed, then he should name the person who knows him.
4.17 What is composed of an affidavit?
1) It basically contains a title. i.e. AFFIDAVIT OF SERVICE;
Above the title it lays down the particulars of the suit which include the country in which the
suit is heard, the court in which the suit is heard and the suit number.
2) It must be numbered consecutively;
3) It should state when the summons was received;
4) It should introduce the process server and the capacity in which he or she is serving i.e. I
am a court process server dully authorized to conduct service of court process;
5) The name and address of the person to be served; this could include the defendant
personally; his/her agent or advocate etc;
6) Date and time when service was conducted.
7) How the person to be served was identified, setting how the process server came to
know that person with justification;
8) Or if assisted by another person; the name of the other person who helped to identify the
person to be served and how they are known to them;
9) The circumstances of service i.e. how the actual service was conducted; the process server

lOMoARcPSD|11183955
introducing themselves and the purpose of service;
10) What was tendered to the person being served;
11) Whether acknowledgement was done;
12) It has to specify the place and date on which it was sworn;
13) It also sets out the name of the deponent together with his signature; and
14) It must be also sworn either before a commissioner of oaths, magistrate or justice of
peace.
Example:
THE REPUBLIC OF UGANDA
IN THE CHIEF MAGISTRATE COURT OF KAMPALA HOLDEN AT MENGO
CIVIL SUIT NO.______ OF 20_____
KATIMBO MARK :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINITFF

VERSUS
NAKI CHARITY:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::DEFENDANT
AFFIDAVIT OF SERVICE
I, BLACK JOHN of P.O.Box _______do solemnly make this Oaths and states as follows;
1. THAT I am Ugandan, male, adult of sound mind and a law - clerk of the above address
and a Court process server of Courts of Judicature with capacity to swear this affidavit.
2. THAT on the _____ day of__________ 20____, I received a summons issued by this
honourable court, dated the _____day of__________, for service on NAKI CHARITY, the
defendant herein.
3. THAT the said person was at the time personally known to me as I had already served
her with a demand notice in respect of the plaintiff’s claim dated ____ day of _______
20____ which she duly acknowledged receipt. A copy of the said notice is hereto annexed

lOMoARcPSD|11183955
and marked “A”.
4. THAT I explained the purpose of my visit and tendered a copy of the summons to the
said NAKI CHARITY who accepted service and appended his signature to the original
summons. A copy of the received summons is hereto annexed and marked “B”.
5. THAT I swear this affidavit in proof of service of summons upon the defendant herein.
6. THAT I whatever is stated herein is true to the best of my knowledge and belief.
SWORN at Kampala this _____ day of ____________________ 20________
By the said Black John ________________________

DEPONENT
BEFORE ME:
_____________________________________
A COMMISIONER FOR OATHS
5.0. REVISION EXERCISE

1) Explain what you understand by the term “Summons”.
2) Explain three reasons why court issues summons to a defendant.
3) Discuss three significant contents of summon to file a defence.
4) Distinguish between
5) Explain what you understand by the term “preferred mode of service”.
6) Explain how you can effect service of summons upon the following persons;
a) Five different defendants in the same case
b) Major General Tujjabatulisa of UPDF
c) Kitata Jimmy a prisoner in Luzira Murchishon Bay National Prison
d) Betty Bulyaba who nolonger stays at her home and her way abouts are unknown.
e) Bolingo Muhwezi who works in Nairobi, Kenya.
f) Katumwa Tom who can’t be traced but his place of work Katumwa Trading
Centre, William street Kampala is accessible.
g) Paul Ochan, a school bursar who is always unavailable at school and his home.

lOMoARcPSD|11183955
7) Peter Muhwezi is a plaintiff in HCCS No. 06 of 2019 filed against Marie Nakitende
seeking to recover a debt of 40M/=, special damages of 15M/= and general damages of
5m/= all arising from the claimed debt. Summons to file a defence were issued to her on
2nd June 2019 and since then, Peter traced her in vain. Peter insists comes rain or
sunshine Mary must pay the debt and he will keep them until she surfaces. This
morning, Peter has been tipped by Marie’s neighbour that she came back at her home in
Lungujja, Lubaga division, Kampala district yesterday having been in New York, USA
for a long holiday. Peter has come to you very excited and ready to pay all your fees if
you take up the above instructions.
Proceed and advise him on;
c) The propriety of the said summons; and
d) The steps to take to effect service of the same upon the defendant.
<<<<<< End of Topic 09 >>>>>

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TOPIC 10: CONSOLIDATION OF SUITS AND TEST SUITS
CONTENTS
34.0 Introduction
35.0 Law on Consolidation of Suits
36.0 Grounds for Consolidation of Suits
37.0 Purpose for Consolidation of Suits
38.0 Effect of Consolidation of Suits
39.0 Exercise of Court’s Discretion
7.0 Procedure for Consolidation of Suits
8.0 Test Suits
9.0 Procedure for an Application for Test Suits
10.0 Conclusion
1.0 Introduction
When actions involving a common question of law or fact are pending before court, it may
order all the actions to be consolidated. This procedure is seriously encouraged in civil
litigation to avoid courts of law from making contradictory judgments over the same subject
matter and also avoid multiplicity of cases.
2.0 Law on Consolidation of Suits

O.11 r 1 of the CPRs provides that;
“Where two or more suits are pending in the same court in which the same or similar questions of law
or fact are involved, the court may, either upon the application of one of the parties or of its own motion,
at its discretion, and upon such terms as may seem fit;
(a) Order a consolidation of those suits; and
(b) Direct that further proceedings in any of the suits be stayed until further order.”
In Stumberg and Anor vs Potgieter [1970] 1 EA 323 (HCK); Court noted that consolidations of

lOMoARcPSD|11183955
suits under O.11 r 1 of the CPRs should be ordered where there are common questions of law
or fact 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. Court
continued further to note that consolidation should not be ordered where there are deep
differences in each action.
Kneller, J at page 327 stated that;

“A broad principle has emerged from English decisions relating to consolidation applications. It is this.
Where there are common questions of law or fact 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…”
See also Daws vs Daily Sketch and Sunday Graphic Ltd and Anor; Darke and Ors vs Same
[1960] 1 All ER. 397; Payne vs British Time Recorder Co. Ltd & Curtis Ltd [1921] 2 KB. 1 at p.
16; and Horwood vs Statesman Publishing Co. Ltd [1929] ALL ER. Rep. 554.
In Patrick Nkoba vs Rwenzori Highlands Tea Co. & Anor [1999] KALR 762; Bamwine Ag
Judge (as he then was), held inter alia that;
“Parties to the various applications may only with leave of court consolidate the various actions into one
or only court may on its own volition consolidate the action into one.”
3.0 Grounds for Consolidation of Suits

These are already provided for under O. 11 r 1 of the CPRs and include inter alia;
9) A common question of law or fact arises in the action.
10) The rights to relief arise in respect of the same transaction or series of transactions.
11) It is otherwise desirable to approve the consolidation.
In Topista Kyebitama vs Damyano Batuma [1976] HCB 276: Court was of the view that;
“It is well established that where two or more suits are filed involving the same parties and arising from
the same cause of action, they should either be consolidated for purpose of determining liability or only
one of them, first in point of time be heard first.”
4.0 Purpose for Consolidation of Suits
The main purpose of consolidation of suits is to prevent multiplicity of actions and save on the

lOMoARcPSD|11183955
costs to be incurred by the parties during the proceedings. In the case of Mohan Musisi
Kiwanuka vs Asha Chand SCCA No. 14/2002; It was held by Mulenga J (as he then was) inter
alia that;
It is a cardinal principle in our judicial procedure that courts must as much as possible avoid
multiplicity of suits. Thus it is that rules of procedure which provide for, permit where appropriate,
joinder of causes of action and consolidation of suits.”
5.0 Orders made by Court in an application for Consolidation of Suits (Effect of

Consolidation of Suits)
Courts usually make the following orders in an application for consolidation of suits;
4) The actions be consolidated, where upon the actions are consolidated into one action and
continue as such. However, the order does not require that different causes of action arising out
of the same transaction be included in one suit. See Jadra Karsan vs Harman Singh Bhogal
(1953) 20 EACA 74;
5) The actions are not consolidated but are heard together with the trial of one immediately
following the other, with separate pleadings, discoveries and judgments. See Topista
Kyebitama vs Damyano Batuma (supra);
6) One action will be heard while the remaining actions stayed, and the decision on the first case
governing the others or with any latter case being subsequently heard.
6.0 Exercise of Discretion of Court

The granting of an order for consolidation is generally within the discretion of the court. The
recent rules of court generally provide the same grounds for permitting consolidation as are
applied to the joinder of parties, namely:
1) Common questions of fact or law;
2) Rights to relief arising out of the same or similar transactions; or
3) Whether consolidation is proper;
4) In cross actions between the same parties arising out of the same matter;
5) Same causes of action; and
6) If consolidation will save expenses.
Where two or more suits are pending in the same court in which the same or similar questions

lOMoARcPSD|11183955
of law or fact are involved, the court may, either upon the application of one of the parties or
of its own motion, at its discretion, and upon such terms as may seem fit-
(a) Order a consolidation of those suits; and
(b) Direct that farther proceeding* in any of the suits be stayed until further order.”
O.11 of the Civil Procedure Rules has a wide application today than it reads:
In the East African Decision of STUMBERG & ANOTHER VS POTGIETER (1970) EA 323
where KNELLER J observed at Page 326 that:
“A broad principle has emerged from English decisions in relation to consolidation application. It is
this, where there are common questions of law or fact in actions having sufficient importance in
proportion to the rest of each action to render it desirable that the whole of the matter should be disposed
at the same time, consolidation should be ordered.”
Consolidation of suits can be either upon application to court by a party interested or court
can on its own motion consolidate matters where the circumstances of the case require so. See
Mabirizi Vs M. Shah & Co Ltd (CIVIL APPEAL NO 45 OF 2015) [2017] UGHCCD 75 (23
March 2017)
7.0 Procedure for Consolidation of Suits

O. 11 r 2 of the CPRs provides that applications under this Order shall be by summons in
chambers. This chamber summons will automatically be supported by an affidavit
substantiating the grounds and providing the necessary evidence to be relied upon.
8.0 Test Suits

O. 39 r 1 of the CPRs provides that;
“where two or more persons have instituted suits against the same defendant and those persons under
the provisions of rule 1 of Order 1 of these rules could have been joined as co-plaintiffs in one suit, upon
the application of any of the parties, the court may if satisfied that the issues to be tried in each suit are
precisely similar, make an order directing that one of the suits be tried as a test case, and staying all
steps in the other suits until the selected suit shall have been determined, or shall have failed to be a real
trial of the issues.”

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The above means that, one action will be heard while the remaining actions be stayed pending
the decision in the test action.
In Amos vs Chadwick (1879) 9. CHD. 459: Court was of the view that to have a test suit/action,
all the issues and evidence in the actions should be substantially the same.
Under test suits, the decision in one suit determines the other suit basically because the issues
and evidence are substantially the same.
Where the trial of the test action did not involve the merits of the case or where there was no
fair trial of the issues, the court may substitute another action as the test action. A judgment in
a test action will not preclude an appeal in the other actions unless there is an agreement the
test action decision is to be fatal.
O. 39 r 2 of the CPRs provides that;

“where a plaintiff has instituted two or more suits and under the provisions of rule 3 of Order 1 of these
rules, the several defendants could properly have been joined as co-defendants in one suit, the court, if
satisfied upon the application of a defendant that the issues to be tried in the suit to which he or she is a
party are precisely similar to the issues to be determined in another of the suits, may order that the suit
to which the defendant is a party to be stayed until the other suit shall have been determined or shall
have failed to be a real trial of the issues.”
In Baguma Charles vs KCCA HCMC NO. 318/2019: Counsel addressed court that there were
many cases of this nature pending before this court and consented that this case be used as a
test case to the pending cases before the court under O. 39 R 1 of the CPRs. Court allowed
their consent and ordered that the outcome of the decision in this case be applied to settle all
similar cases filed in the court. The cases to be settled were identified and listed by consent of
counsel for the parties.
9.0 Procedure for an Application for a Test Suits

An application for a test suit shall be by Notice of Motion supported by an affidavit under O.
52 rr 1 and 3 of the CPRs.
10.0 Conclusion
Both consolidation of actions and test suits are procedural aspects provided for under the Civil

lOMoARcPSD|11183955
Procedure Rules that are intended to avoid multiplicity of civil actions and prevent judicial
officers from making conflicting decisions in more or less similar actions. It is indeed prudent
that parties explore them to avoid protracted civil trials.
27) Discuss the grounds an applicant has to justify to court to sustain an action for
consolidation of civil actions.
28) With reference to clear authorities, explain the legal effect of consolidation of civil
actions.
29) Distinguish between consolidation of suits and test suits.
<<<<<< End of Topic 10>>>>>


Civil Procedure Notes: UCU Faculty of Law

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Civil Procedure Notes

BACHELOR OF LAW (Uganda Christian University)

StuDocu is not sponsored or endorsed by any college or university

PREPARED BY PAUL MUKIIBI (UCU)

COMPILED AND EDITED BY:

Compiled & Edited by Epeduno Allan Page 1

TOPIC 01: INTRODUCTION TO CIVIL PROCEDURE

Compiled & Edited by Epeduno Allan Page 2

1.0 Introduction to Civil Procedure

Black’s Law Dictionary, Eighth Edition refers to it as ;

"Procedural/Adjective law" is to be distinguished from "substantive law" in that substantive

Compiled & Edited by Epeduno Allan Page 3

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Procedure also includes non-litigious methods of resolving disputes (Alternative Dispute

Article 28(1) of the Constitution provides that:

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2.0 Nature of Civil Procedure Rules

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3.0 Objectives of Civil Procedure Law

a) its complementary character;

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b) its protective character; and

3.1 Complementary Character

3.2 Protective Character

3.3 Remedial or Practical Character

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4.0 Sources of Civil Procedural Law

5.0 Organization and Hierarchy of Courts

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a) The Supreme Court

a) The Chief Magistrate

a) Tax Appeals tribunals.

6.0 Civil Jurisdiction

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case unless expressly barred by law. S.5 CPA Cap 71.

a) Inherent and original jurisdiction;

7.0 Sources of jurisdiction

 Other sources include;

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a) Jurisdiction is a creature of the constitution and/or an Act of Parliament.

8.1 Chief Magistrate;

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8.2 G.I Magistrates

8.3 Grade II Magistrates

8.5 The High Court of Uganda

8.6 Court of Appeal and Constitutional Court

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8.7 Supreme Court of Uganda

9.0 REVISION EXERCISE

<<<<<< End of Topic 01 >>>>>

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TOPIC 02: COMMENCEMENT (INSTITUTION) OF SUITS

2.0 Preliminary Considerations

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Under Section 2 of the Civil Procedure (Miscellaneous Provisions) Act provides:-

“2. Notice prior to suing

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Section 19 of the civil procedure Act cap. 71 provides that;

“Every suit shall be instituted in such manner as may be prescribed by rules”.

a) Plaint (Ordinary Suits)

3.1 PLAINT IN AN ORDINARY SUIT (Order 4 of the CPRs)