CIVIL PROCEDURES CASES AND

MATERIALS
CASENOTES ON CIVIL PROCEEDINGS
COMMENCEMENT OF PROCEEDINGS
Principle: Service of notice to an advocate is in all normal circumstances as good a service as
one made to the advocate’s client.
UNTA EXPORTS LTD VS CUSTOMS [1970 EA 645
Goudie J​ ​held​ that:
1) Notice was properly given to the Advocate for the claimant where the Commissioner General
of Customs gave that notice to an advocate with whom he had been in correspondence with
and
2) No document is properly filed until the fees have been paid.

Principle: The Court of appeal can waive any procedural irregularity in the lodgement of
an appeal.
MOTEL SCHWEITZER VS THOMAS EDWARD CUNNINGHAM AND ANOR [1955] 22 EACA
252
The memorandum of Appeal was filed on the 6th day of December 1954 but no decree upon
judgment was drawn until 7th Jan 1955. a preliminary objection was taken by the respondents
that the appeal was incompetent as no decree was in existence at the time of lodging the
memorandum and that the appellant had failed to file the appeal in accordance with the rules.
Sir Barclay Nihill held:
1) Rule 56 as aforesaid is procedural only and does not affect a substantive law by which a right
of appeal is conferred by a municipal law. Its primary purpose is to provide that a notice of
appeal can be given before any formal decree is drawn up.
2) An appeal is not instituted in the court of appeal until the record of appeal is lodged in its
registry, fees are paid and security lodged as provided for in rule 58 of the rules.
3) By virtue of rule 72(1) of the Court of appeal rules, the court now has a right top waive an
irregularity in the procedure.
Principle: An advocate who commences proceedings without the authority of the plaintiff incurs
personal liability with regard to costs.
BUGERERE COFFEE GROWERS LTD VS SSEBADUKA [1970]EA 14
The action was brought in the name of a company challenging the appointment of the
company’s new directors. It was objected to by the defendants at the outset that the action was
incompetent because the company had given no authority to have the suit instituted
Youds J held:
1) When companies authorize the commencement of legal proceedings, a resolution or
resolutions have to be passed either at a company or board of directors meeting and recorded
in the minutes; no such resolution had been passed authorizing the proceedings.
2) Where an advocate brought legal proceedings without the authority of the purported plaintiff,
the advocate becomes personally liable to the defendants for the costs of the action.
BUIKWE COFFEE ESTATES LTD AND 2 OTHERS VS LUTABI [1962] EA 328
Bennet J held:
1) The question whether the advocate was had been duly instructed to sue would depend on
the court’s finding, who were the lawful directors, this could only be determined after evidence
had been heard at this stage. Want of authority to sue did not plainly appear and therefore the
suit would not be struck out.
2) The court’s leave ought to be obtained to be obtained to join other causes of action with a
claim for possession of the company’s coffee factory but as leave had now been applied for,
leave would be given.
Principle: An unsigned notice of intention to sue is invalid in law.
LYAKIYE VS AG [1973] 1 ULR 124
Lubogo Ag. J held
Pursuant to section 1(2) of the Civil Procedure and Limitation (Misc. Prov.) Act of 1969 the
written notice was to be in the form of schedule 2, which included space for the signature of the
plaintiff or his advocate and an unsigned notice was defective and the action would be
dismissed.
Principle: An appeal is not properly instituted until the fees are paid.
MARGARET MUSANGO VS FRANCIS MUSANGO [1979] HCB 226
Ntabgoba Ag. J
1) No document is properly filed until the filing fees have been paid. Unta Exports Vs Customs.
2) The court has a discretion to allow enlarge the time for filing an appeal out of time even when
the application is not made until after expiration of the said time.
Principle: A valid statutory notice of intended suit against the government must among others
disclose all the material facts of the cause of action.
RWAKASORO AND 5 ORS VS THE ATTORNEY GENERAL (1982) HCB 40
Asthana J. held
1) Under section 1 of the Civil Procedure and Limitation (Misc. Prov.) Act 20 of 1969, no suit can
lie against Government until the expiration of 60 days (now 45) next after which notice has been
delivered or left at the office of the Attorney General stating the name, description and place of
residence of the intending plaintiff, the name of the court in which it is intended the suit to be
instituted and the facts constituting the cause of action.
2) The period of 60 [now 45 days ]prescribed under the act is intended for the purpose that the
government may investigate the claim and if possible settle it out of court.
3) Unless sufficient facts are disclosed in the statutory notice, the government may not know
what the claim is about.
4) It is a practice for advocates to annex a copy of the intended suit with a statutory notice so
that all relevant and necessary facts are known to the person to whom the notice is given.
Principle: No suit against a public corporation will be entertained unless a statutory
notice was given before its commencement.
PAMBA VS COFFEE MARKETING BOARD [1975] HCB 369
Nyamchoncho J held:
1) By virtue of section 1 of the Act, no suit can be instituted against a scheduled corporation
unless a written notice has been delivered to or left at the office of the secretary of the
corporation.
2) Where a statutory notice is denied, the onus of proof of service of such notice is on the
plaintiff.
Principle : Payment of a requisite fee is a condition precedent to filing of an action
CHRISTOPHER KATURAMU VS MAKYA & 2 OTHERS [1992-93] HCB 161
Mukanza J. held
1) an application to review a court order is made on discovery of a new and important matter of
evidence and for a mistake or error apparent on the face of the record
2) There is no action filed unless the fees have been paid. Where the record showed fees paid
in terms of the Written Statement of Defence and no fees for the counterclaim; that was an
irregularity on the part of the registry staff coupled with the fact that the format was not followed,
the court was of the view that the respondent should not suffer for this irregularity.
ISSUE AND SERVICE OF COURT PROCESS
Principle: A notice of motion not signed by a judge is a nullity.
(this has been changed by virtue of the Practice direction 1 of 2002 which grants Registrar's
powers!!)
NAKITTO AND BROS LTD VS KATUMBA [1983] HCB 70
Kityo J.
1) The expression Notice of motion falls within the meaning of suit as used and defined in the
CPA; thus since a suit can be by way of notice of motion; not signed by the judge or an officer
appointed by him, nor was it sealed with the court seal, it did not comply with the procedure
under Or.5 and the application was therefore a nullity.
KAUR AND OTHERS VS CITY AUCTION MART LTD [1967] EA 108
Jones J.
A notice of motion should be signed by a judge and sealed with the seal of court under
o.5 rule 5(3) of the CPR.
NB- this position changed with the coming into force of the Practice Direction 1 of 2002 which
gives registrar's powers to handle interlocutory applications.
Principle: a rubber stamp may sometimes be sufficient seal of court
THE ATTORNEY GENERAL VS KHATOON CASSAM SATCHI AND ANOR [1960]
Mosdell J.
In the absence of any mechanical apparatus for the sealing of documents, a stamp may be
sufficient used and accordingly such court documents shall be valid.
Principle: absence of the signature of a judge or seal of court on a notice of motion is invalid
JOHN KANGAINA VS DABO BOUBON [1986] HCB 59
Karokora Ag. J
Although in practice the notice of motion carries signatures of judges and seal of the courts,
these are not a legal requirement and their omission does not render an application fatal. The
application was properly before court in so far as it was signed by the registrar and that order 5
sub rule 2 did not apply with this type of application as it dealt with summons.
Editorial Comment- try to reconcile this with the holding of Kityo J. in Nakitto Brothers Vs
Katumba.
Principle: Service on Sunday is ineffective
HANINGTON WASSWA VS MARIA OCHOLA [1992] HCB 47
The Supreme court held; (Manyindo DCJ, Order and Platt JSC)
Service on a Sunday in void within the meaning of Order 52 r.9 of the CPR as no service can be
effected on Sunday. The affidavit of service should comply with o.5 r17 of the CPR. Where
service is effected under o. 5 r. 13, the address of the person identifying the individual to be
served should be annexed to the affidavit.
Principle: where there are more than one defendant, service of the court process should be
effected on them all.
EAGEN INSURANCE CO LTD VS ELIZAPHAN K. NTENDE [1979] HCB 227
Ntabgoba Ag. J held;
Where an applicant applied to set aside the exparte judgment and decree on the grounds that
the suit was brought to be in a mortgage deed but the plaintiff company sought to burden only
one out of the six defendants to pay the sums owing;
In absence of a stipulation to the contrary in the deed, each of the defendants should have
understood to contract to pay back to the mortgage his share of the loan with interest thereon.
Thus having decided to join all the six defendants with payment of a total sum of 29028/= was to
say the least, unjust and inequitable.
Therefore the ground relied on by the applicant in support of the present application was
sufficient ground to amount to good cause under order 33 r. 11 (now order 37 rule 11 of SI
71-1).
Principle : Service of the court process on a corporation is to be effected upon a
principal officer of the corporation.
AUGUSTINE OKURUT VS GERALD LWASA AND PRODUCE MARKETING BOARD
[1988-90] HCB 164
Berko J. presiding held:
That by the provision of O.29 r. 24 under which the application was brought, the burden of
satisfying the court that the summons alleged to have been served had not been served was on
the applicants.
Applying the ejusdem generic rule, the secretary of the general manager was not within the
class of persons intended by the rule and could not fall within the ambit of principal officer of the
company; hence service of the process was not effectively effected on the corporation.
JAMES MUSAJJA LUMBWA VS BITUMASTIC LTD [1982] HCB 103
Manyindo J.
The service of summons to enter appearance on the defendant was improper for two reasons:
First, the defendant being a limited liability company should have been served as provided for
by O 26 of the CPR, i.e service on a corporation is effected through service on the company
secretary, a director or other principal officer of the corporation or by leaving a summons at the
registered office of the corporation or at its place of business.
JF IJJALA CORPORATION VS ENERGO PROJECT [1988-90] HCB 157
Tabaro J; held
The summons was left at the principal place of business of the defendant corporation and under
the circumstances, the summons were duly served.
Principle: a defective affidavit of service would set aside the judgment.
MATIASI KANIMBA VS SURYANKANTI PATEL [1973] HCB 185
Musoke J
The affidavit did not comply with o. 5 r. 17 of the CPR. The process server had to state in his
affidavit inter alia, the name and address of the person, if any identifying the person served and
witnessing the delivery or tender of the summons. It was imperative to point out the person
identifying the defendant.
Principle: The names and addresses of people identifying the defendant must be stated
in the affidavit.
OSUNA OTWANI VS BUKENYA SELANGO [1967] HCB 62
Allen J.;
Since the names and addresses of persons who identified the defendant were not included in
the affidavit of service and since these persons did not witness the delivery or tender of the
summons, as required under order 5 r17 of the Rules, which make it mandatory as is
designated to ensure that there is actual service, carried out properly; it would be wrong for
court to accept the fact that there was service of summons especially where the defendant did
not sign them.
Principle: Illiteracy in English is no ground for ignoring a summons.
FEBIANO MEGERO AND PAUL KAMEDDE VS PATRICK KAKUNGULU [1976] HCB 289
Butagira J.
Illiteracy in English is no ground for ignoring a summons. The great majority of persons upon
whom summons are served in Uganda are illiterate in English and if illiteracy in English was to
be regarded as an excuse for ignoring a summons or other court document the work of courts
would be gravely handicapped if not paralyzed. The person upon whom the summons is serve,
if he is unable to read it should take it to some person who can read it.
Principle: Time does not begin to run until proper service has been effected.
OMUSA KUDANGA VS NATIONAL INSURANCE CORPORATION [1977] HCB 248
Lubogo Ag CJ
Time does not begin to run against a defendant unless he has been properly served.
The fact that both appearance and the defence were filed before proper service was effected
was immaterial and it was wrong to enter an interlocutory judgment for the Plaintiff.
Principle: Service on the advocates is proper service
BENJIRO AND 5 OTHERS VS KAMANDA [1977] HCB 331
Ark J
Under o3r4 of the CPR, any process served on the advocate of any party or left at his office
shall be presumed to be duly communicated and made known to the party whom the advocate
represents and shall be effectual for all purposes as if the same had been given to or served on
the party I person.
In the present case, the process was sent by the counsel for the defendant for service on the
plaintiffs to their advocates and since there was no other address of the plaintiffs on record
except through their advocates, the service of the process was effectual and sufficient.
Principle: The process server must make a genuine effort to serve the defendant
personally
ZAKALIYA KIGUNDU VS LEO KASSUJA [1971] HCB 164
Justice Russell
The court, therefore was not satisfied that either the summons or the hearing notice had been
served in accordance with the CPR. The summons would therefore have to be properly served
on the defendant and the suit would then proceed in the normal manner.
Principle: waiver of irregularities in the service of summons may be inferred from the
filing of the defence.
NANJIBHAI PRABUDAS AND CO. VS STANDARD BANK LTD (1968) EA 670
Harris J.
Even if it’s the order for service out of jurisdiction had been wrongly made; the Kenya courts
have no jurisdiction to set aside service effected in Uganda by the Uganda court.
Even if the service of summons was defective, the defect constituted an irregularity capable of
being waived and did not render the service a nullity and;
Any irregularity in the service had been waived by the defendant by entering appearance and by
delay in bringing the application for hearing and
The defendant ‘s alternative application for extension of time for filing its defence was
misconceived because a decree had already been issued and should be refused in any event
on the merits.
Principle: Meaning of the phrase ”can not be found” under order 5 of the CPR
ERUKANA KAVUMA VS ST MEHTA [1960] EA 305
Sir Audley J held
O5 r9 was not complied with because no duplicate of summons was tendered or delivered to
the defendant’s wife. Service was therefore bad and; The absence of the defendant from
Uganda without any information about the address in India or whether he would return and if so
when was not sufficient ground for saying that the defendant cant be found.
WAWERU VS KIROMO [1969] EA 172
As the process server made no inquiry about the defendants’ whereabouts; it could not be said
that he could not be found so as to allow service on his wife under O5 r12 of the Rules.
Principle: The duration and legal implications of agency by an advocate
BELIRAM PARIMAL AND CO. VS. MRS SALIKIND [1924] 27 KLR 28
Cram Ag J
An advocate can only be discharged from liability to receive service of the proceedings by
substitution on the record of another advocate of the party in person. After such a discharge has
been effected and entered on the record, the discharged advocate can not be served nor can he
accept service.
A mere statement to the judge in court that he has withdrawn from representing the party in
question does not enable him to have his name taken off the record nor discharge him from the
proceedings.
The acceptance of a brief in litigation is in the nature of an entire contract and the advocate
owes a duty to his client and should not be entitled to discharge himself without an order of
court.
Principle: sufficient inquiry must be made of an absentee defendant to ensure effective
service of summons.
PIRBHAI LALJI AND SONS VS HASSAN ALI DEVJI [1962]EA 306
Sir Audley McKisack CJ
Where no proper or sufficient inquiry was made as to the defendant’s whereabouts or whether
the defendant could not really be found, service on the defendant’s wife was not effective.
Principle: Requirements of leave to serve out of jurisdiction.
PAUL DONNEBAUM VS KURT MIKOLASHEK [1966] EA 25
Farrell J.
The plaintiff should show that he has a cause of action which could properly be described as
probable success.
Principle: affixing a copy of the summons on the ordinary residence of a defendant can
be proper service.
ERUKANA OMUCHILO VS AYUB MACHIWA [1966] EA 229
Harris J.
Before a process server can validly effect service by affixing a copy of the summons to the
premises, he must by virtue of O5 r14 exercise all due and reasonable diligence to find the
defendant or any of the persons mentioned in O5 r9,11 and 12 and it is only when after using
such diligence , and none of them can be found that he can affix a copy of the summons on the
premises; full particulars of which should be given and service upon the defendant in this case
was wholly ineffectiveness the process server had not used all due and reasonable diligence to
find the defendant or the persons mentioned in 0 5 rules 9,11 and 12.
Principle: Disclosure of the name and address of the person identifying the defendant is
a statutory duty.
Sir Udo Udoma CJ
The disclosure of the name and address of the person who identified and witnesses delivery or
tender of the summons to the defendant at the material time is a statutory duty.
Failure to disclose the name of the clerk in the two affidavits sworn by one Musa, the process
server, had the effect of rendering them defective for non compliance with the provisions of O5
r17 and
It was wrong for the registrar to have acted on such a defective affidavit of service
APPEARANCE AND AGENTS
Principle: affixing a copy of the summons on the ordinary residence of a defendant can
be proper service.
EBOO’S PETROL STATION LTD VS BLACKSTONE UTILITIES LTD (1985) 28 KLR 20
Cram Ag J
A corporation aggregate having no physical existence can act through its agents which it can
lawfully appoint under the companies ordinance cap 288. at common law, a limited liability
company can not sue except by a professionally qualified agent.
O6 rule 25 requires that every pleading must be signed by an advocate or by a party if he sues
in person but this is qualified by o28 r1 which provides that in a suit by a corporation, the
pleading may be signed by a secretary, director or principal officer. As the plaint presented did
not purport sop to be signed but merely by an agent without status, it was irregular and rejected.
An unqualified agent can perform purely ministerial acts for his principal in a lawsuit without
being in contempt and the mere act by the agent in carrying the summons to the registry was
not in itself unlawful
Nothing in the advocate’s ordinance of 1949 prohibited a limited liability company from
instituting its own suit through an unqualified agent provided the agent held the company’s
power of attorney for that purpose.
Principle: appearance by advocate is good as appearance in person.
FREDERICK SEKYAYA SEBUGULU VS DANIEL KATUNDA [1979] HCB 46
Khan J.
An order of dismissal could be treated under O9r19 only if a party was not represented on the
hearing date. In as much as the plaintiff’s counsel was present and appeared on the plaintiff’s
behalf, when the suit was dismissed the plaintiff was then pursuant to O3r1 of the CPR legally
present before the court on that date.
Principle: striking out a plaintiff
AYIGIHUGU AND CO. ADVOCATES VS MARY MUTETERI [1988] HCB 161
Tsekoko J
Where a plaintiff proceeded exparte, it was not proper that the court order that any person be
substituted as a plaintiff.
Under o1 r10(1) the court would have to investigate in order to be satisfied that there was a
bonafide mistake in taking the proceedings not in the name of the donor but the donee
Principle: a party can lawfully file a defence through his/ her recognized agent.
NASSANGA ALERO VS NANYONJO [1977]HCB 320
Ssekandi J
A party can be represented by his or her recognized agent under o 5. thus in the instant case,
the letter the aunt to the appellant could be treated as a power of attorney abd
Rules of procedure are a guide to the orderly disposal of the suits and a means of achieving
justice between parties. They should never be used to deny justice to a party entitled to a
remedy.
Principle: the consequences of failure to file a defence upon service of summons.
SIRASI BITAITANA AND 4 ORS VS EMMANUEL KIWANUKA [1977] HCB 34
Allen J
Where applicant are served with summons to enter appearance and they failed to respond to
them, then they had by their failure put themselves out of the court and had no locus standi
Ignorance of the procedure is no defence except in very exceptional circumstances.

Principle: setting aside an exparte decree: the applicant must show sufficient cause for
non appearance: 09 r 24
KAWOOYA VS NAAVA [1975] HCB 314
Ssekandi J.
Under o9 r24, court shall set aside an exparte decree and judgment entered against a
defendant on being satisfied that the defendant was prevented by sufficient cause from
appearing when the suit was called for hearing and therefore on sufficient cause being shown
for failure to appear and defend when the suit was called up for hearing, the exparte judgment
would be set aside.
SSENYANGE VS NAKS LTD [1980]HCB 31
Odoki J.
A mistake or oversight on the part of the counsel though negligently is sufficient cause for
setting aside an exparte decree (followed in Ahmed Zirondomu Vs Mary Kyamul;abi (1975) HCB
337). On the strength of the affidavit of the counsel for the applicant wherein it was said that
counsel did not appear at the hearing of the application because he was mistaken or confused,
sitting in a wrong court which was a genuine reason, counsel was prevented from appearing by
sufficient cause.
Principle: appearance by recognized agents is deemed good appearance
GAKWAVU VS GASENGAIRE [1977]HCB 322
Ssekandi J.
Any person may be represented by his recognized agent in any trial. The court is also
empowered to give the conduct of such suit to such a person as it deems fit.
Principle: Definition of a suit
MANSION HOUSE LTD VS JOHN STANSBURY WILKINSON (1954) 2 EACA 98
Briggs JA Et al
A suit is any civil proceeding commenced in any manner prescribed by the rules made by the
rules committee to regulate governance of courts under civil procedure rules.
A decree can only arise in a suit; an order may arise in a proceeding which is not a suit.
Principle: Appearance of advocate; duty to tell court the names of the parties for whom
he is appearing.
P&TC VS TERRAZO PAVIORS [1973] EA 344 ​
Onyiuke J
Appearance under the rules means attendance in person or by an advocate in court on the date
stated in the summons.
Where parties appear by advocate, it is the duty of the advocate to state in court the names of
the parties for whom he is appearing.
Principle: Appearance by an advocate is lawful
SHANGARA VS FARM VEHICLES LTD [1969] EA 588
Platt J.
At the trial of a civil suit in a magistrate’s court where, the defendant was absent but his
advocate was present and stated he was ready to proceed with the hearing; the plaintiff asked
for and obtained judgment on the ground that the defendant had not appeared within the
meaning of the rule. Court held that appearance by the advocate was appearance within the
meaning of the rules.
Principle: Granting an adjournment to enable the defendant appear in person or by
another advocate
KISEBU VS OGENGA [1970] EA 96
Kneller J
The legal secretary can act as an advocate for persons other than the community and thus the
magistrate was wrong in not allowing the application for an adjournment to appear in person or
by another advocate.
PARTIES TO CIVIL ACTIONS
Principle: misjoinder of parties and causes of action.
BARCLAYS BANK DCO VS CB PATEL [1959]EA 214
Sheridan J.
Where distinct causes of action accrue on different dates and against different defendants and
the liability of different guarantors arises is separate and distinct, the two causes of action can
not be joined. Followed in G.K. KAMANI VS M.K. DESAI (1954) ULR 135.
Principle: Where there is a common point of law affecting parties, there can be no
misjoinder of parties and causes of action.
THE BANK OF INDIA LTD VS AMBALAL AND ORS [1965] EA 18
Sheridan J
O1 r13 of the CPR applied because although the plaintiffs sought separate remedies against
each guarantor, the same transaction namely the company’s overdraft related to all of them in
terms of the questions of law and fact and therefore there was no misjoinder of parties of
causes of action.
THE SAME PRINCIPLE IS EVIDENT IN UGANDA GENERAL TRADING CO. VS JINJA CASH
STORES LTD AND ANOR [1965]EA 469 by SHERIDAN J.
RAMZANALI VS NURDIN [1963]ULR 37 (affords no clear principle on misjoinder).
LOMBARD BANK ING KENYA VS SHAH [1960] EA 969
Miles J.
While a defendant may be joined without his consent, no person ought to be compelled to bring
an action without his consent and accordingly, in the absence of consent of the proposed
plaintiff, no substitution could be allowed
Principle: power to dismiss a party from a suit:
This was held in OVERSEAS TOURING CO. VS AFRICAN PRODUCE AGENCY (1962) EA
190 ; Kenneth O’ Connor P. presiding.
Principle: a representative order is required in the case of unnamed plaintiffs.
SSONKO AND ORS VS HALUNA AND ANOR. [1971] EA 443
Mead J.
An allegation of fraud against the second defendant shows a cause of action but in absence of a
representative order, the claim on behalf of an unnamed plaintiff could not stand and would be
struck out.
Principle: Notice of application for a representative order is not necessary.
JOHNSON VS MOSS AND ORS [1969] EA 654
Phadke J held
Notice of application for a representative order is not necessary; the Defendants and all
members of the club had the same interest in the suit and the representative order had been
properly made and as a result there was not need to delve into the details of the notice of
application for the said order.
Principle: A representative suit is only filed after leave of court has been granted.
PAUL KANYIMA VS R. RUGOORA [1982] HCB 33
Manyindo J
This being a representative suit,, it was mandatory under the CPR for the plaintiff to obtain leave
of court before filing it and a suit that is brought without leave of court is incompetent and can
not be stayed but should be struck out.
THE UNIVERSITIES OF OXFORD AND CAMBRIDGE VS GILLS AND SONS [1898] 1 CH 55
Stirling J held:
The action arose out of the same series of transactions, commons questions of fact would arise;
and thus the conditions for joinder of action were evident and as a result the joinder was lawful.
Principle: misjoinder of causes of action
STROUD VS LAWSON AND ORS [1898] 2 QB 44
AL Smith, Vaughan Williams and Chitty LJJ
The plaintiffs were not entitled to join the causes of action in so far as the right to relief claimed
by him in his personal capacity and the right to relief claimed by him representing the
shareholders did not arise out of the same transaction or series of transactions within the
meaning of the rules.
SANDERSON AND BULLOCK ORDERS
BULLOCK VS THE LONDON GENERAL OMNIBUS CO. AND ORS (1907) 1 KB 264
Collins MR, Cozens-Hardy and Farwell LJJ
After a verdict and judgment have been pronounced it was too late to object to jurisdiction to try
action on the ground that the torts were allegedly severally against the two defendants .
In an action of torts tried with the jury in which relief is claimed against two or more defendants
in the alternative, there is jurisdiction to direct that costs payable to a successful defendant
should be included in the costs recoverable by the plaintiff from an unsuccessful defendant.
VICARIOUS LIABILITY
SAMUEL KIZITO MUBIRU AND ANOR VS G.W. BYANSIBA AND ANOR [1985] HCB 106
Karokora J.
A plaint will be struck out if it omits to mention that a servant was acting in the course of his
employment.
JO​VELYN BARUGAHARE VS ATTORNEY GENERAL SCCA 28/ 1993
Manyindo DCJ, Odoki JSC and Platt JSC
Held
Vicarious liability operates only when the master- servant relationship is established and the
servants committed a tortious act in the course of their employment.
UGANDA AMERICAN INSURANCE CO. LTD VS PHOLAS RUGANZU SCCA 10/1992
Held Manyindo DCJ, Seaton JSC and Platt JSC
The respondent had failed to prove that the driver was acting in the ordinary course of his
employment at the time of the accident. In questions of vicarious liability , it is wise for the
plaintiff to sue both the master and servant to ease the settlement of the question of whether the
master servant relationship existed.
MUWONGE VS AG [1967] EA 17
HELD; Newbold P, Sir Udo Udoma CJ and Duffus JA
The firing of the shot was an act done within the exercise of the Policeman's duty for which the
Government of Uganda was liable as a master even though it was wanton, unlawful and
unjustified.
Newbold PAdded that an act may be done in the course of the servant’s employment so as to
make master liable even though it is done contrary to the orders of the master and even if the
servant is acting deliberately, wantonly, negligently or criminally for his own benefit.
REPRESENTATIVE ACTION
(Most of these are covered under joinder of parties and causes of action)
LEWIS VS DAILY TELEGRAPH [1964] 2 QB 601
Sellers, Pearson and Russell LJJ
Co- plaintiffs, in a consolidated action were not entitled to separate legal representation without
leave of court. The action as it existed was not properly constituted and as a result there being
no reason for granting leave for separate representation, the action did not proceed for trial until
a single solicitor was placed on the record for both plaintiffs.
KAMOUH VS ASSOCIATED ELECTRICAL INDUSTRIES INTERNATIONAL LTD [1980] 1 QB
199
Darkes J
Although the plaintiff under Lebanese law had a good title to sue in the English courts, in his
representative capacity; the title was not recognized in the English courts since the English
courts did not provide for safeguarding of property and affairs of absent persons save where
leave to swear death and an English grant of probate or administration was obtained.
OSMAN VS AHMED SULEMAN AND ORS [1969] 13 EACA 1
Sir John Gray CJ Principle: The sole test for a representative action is whether all
persons alleged to be represented have an identical interest in the suit.
DAVID ABDALLAH AND
In a representative suit, the sole test for a representative action is whether all persons alleged to
be represented have an identical interest in the suit. (quoted Lord McNaughten in Duke of
Bedford Vs Ellis (1901) 70 LJ Ch 105 thus: given a common interest and a common grievance,
a representative suit is in order if relief sought is in its nature beneficial to all whom the plaintiff
proposes to represent. This was followed in Campbell Vs Thompson and Anor [1953] 1 QB 445
)
THIRD PARTIES
Principle​: ​This notice is issued where a third party is under liability to indemnify the party
seeking its issuance.
EDWARD KIRONDE KAGGWA VS L. COSTAPERALIA AND ANOR [1963] EA 213
Slade J
In terms of order 1 r 18, the court has to consider whether there is a proper question to be tried
as to the liability of a third party to make contribution or indemnity. The learned judge relied on
the principle enunciated by Lyon J in Birmingham Vs London and NW
Rly Co. Ltd [1887]34 Ch. D 216 and this was followed in Yafesi Walusimbi Vs AG [1959] EA 223
Principle: a third party notice must be accompanied by a copy of the plaint.
OBANGO VS UTC [1975] HCB 118
Manyindo J.
A copy of the plaint of the main suit ought to have been attached to the notice. However this
violation was not fatal; to the application and the irregularity could be cured by directing the
applicant to serve the third party notice with a copy of the plaint.
Principle: third party procedure is limited to questions of indemnity or the need to make
contributions
TOTAL OIL PRODUCTS LTD VS WILLIAM M.K. MALU AND ORS [1969] EA 164
HELD; where there was no claim no indemnity or contribution in the notice the summons for
direction ought to be dismissed.
Principle: a right to indemnity or contribution can arise by contract or by equity
EASTERN SHIPPING CO. VS QUAH BENG KEE [1924] AC 177 AT 182
Held; Chitty J
In order to bring a case within the rules it is not enough that if the plaintiff succeeds the
defendant will have a claim for damages against a third party but that the defendant will have
against a third party a direct right to indemnity as such which right must generally if not always
arise from contract express or implied.
EAST MENGO GROWERS COOP UNION VS NIC (1985) HCB 94
Held Opu J.
Where the third party ignores the summons of court, this is a proper case wherein judgment
should be entered against the third party.
STRIKING OUT/ SUBSTITUTING PARTIES
BENJAMIN SAJABI VS TIMBER MANUFACTURERS LTD [1978] HCB 202
Butagira J.
A non-existent person cannot sue. No amendment could be made under O1r 10 of the CPR
because this is only applicable where the defendant wrongly sued has a legal existence and a
question arises of suing a wrong party who may be substituted by the right one.
Since in the eyes of the law the party sued had no legal existence; the applicant of the plaintiff
could not be madder to pay costs to a non-existent person.
In the same vein, a suit brought by a non-existent plaintiff ought to be struck out. This was
followed by Templeton J. in​ FORT HALL BAKERY VS FREDERICK MUIGIAA[1959] EA 474
MATOVU VS GURU SINGH AND POSTER MASTER GENERAL [1975] HCB 13
Manyindo J.
A party to a suit who has ceased to exist must be struck out. In this case Postmaster General
ceased to exist when the EA Posts and Telecommunications Act 1951 was replaced by the EA
Posts and Telecommunications Act 1970. Thus the second defendant would be struck out and
replaced with the EA Posts and Telecommunications Corporation.
ALICE KIWANUKA VS PM PURSHOTAM [1973] HCB 197
Katinti J Held
Where a cause of action arises at the time of death of the deceased; once the probate or letters
of administration are granted, the legal representative may be added as a defendant.
DHANESHVAR MEHTA VS MANILAL SHAH [1965] EA 321
Spry J A held
An application to strike out or substitute a party is subject to the law of limitation; in the instant
case therefore, the court would not be justified in exercising its jurisdiction/ discretion as there
had been delay in making the application and the effect of allowing the application would have
been a defeat of vigilance. The application was barred by limitation.
In LUCY VS WT HENLEY’S TELEGRAPH WORKS CO. LTD AND ORS [1907] 1 QB 393
Meggaw and Edmund Davies LJJ on appeal held that an amendment to add a new defendant is
not permissible when a relevant period of limitation affecting the purposed defendant has
elapsed. Followed MABIRO VS EAGLE, STAR NAD BRITISH DOMINIONS INSURANCE CO
LTD [1932] 1KB 485
Held PLEADINGS AND AMENDMENT OF PLEADINGS
R.K. KASULE VS MAKERERE UNIVERSITY KAMPALA [1975] HCB 376
Ssekandi J

A claim of exemplary damages must be specifically pleaded in the body of the plaint.
The system of pleadings is designed not only to define with clarity and precision the issues
raises between the parties but also to fulfill some of the fundamental principles of natural justice.
FEIBE TALITUKA VS ABDU NAKENDO [1975] HCB 275
Khan Ag J
An allegation in the plaint must be specifically or by necessary implication denied.
Per Curiam
The particulars of the injuries have not been given in the plaint with precision and accuracy. The
description of the injuries was too general and not specific.
EPAINETO MUBIRU VS UCB [1971] 1 ULR 144
Phadke J.
The need for the plaintiff to furnish further particular of something necessarily helps the
defendant to adequately file his defence. Pleadings must contain sufficient information to enable
the defendant to prepare his defence. This was followed in Phillips vs Phillips and Ors (1878) 4
QBD 127 and Mbarara coffee curing works vs Grindlays Bank ltd [1975]HCB 57
CAT BISUTI VS BUSOGA DISTRICT ADMINISTRATION (1971) 1 ULR 179
Dickson J. Held
Under O 7 r 1(f), the obligation to plead facts showing that court has jurisdiction ans a mere
assertion that the court has jurisdiction was not enough. What mattered was not an assertion in
the plaint that the court had jurisdiction abut a statement of fact showing jurisdiction. This
principle was used by Jones J in Alexander Mutongole Vs NYTIL [1971] HCB 144.
PLAINT
GHELLA VS ABDULLAH [1962] EA 765
Edmonds J held
It is not necessary in pleadings to use the word special damage, where such damage should be
claimed provided such a claim can be said to be intended from a reading of the plaint.
JOSEPHAT MUTUNGI VS NDUGU KABUR [1969] EA 455
Dalton J
The plaintiff had 2 distinct and separate causes of action one for personal injury and the other
for damage to the vehicle and was not barred from bringing two suits against the defendants.
LETANG VS COOPER [1965] 1 QB 232
Diplock LJ held
A cause of action is simply a factual situation, the existence of which entitles the person to
obtain from a court a remedy against another person.
DANIEL SEMPA MBABALI VS WK KIDZA (1985) HCB 46
Odoki J held
If the plaint shows that the plaintiff enjoyed a right, that right has been violated and that the
defendant is liable than a cause of action has been disclosed.
NKALUBO VS KIBIRIGE [1973] EA 102
Spry J held
The introduction of a new cause of action should not be allowed without pleading.
ODD JOBS VS MUBIA [1970] EA 476
Law, Lutta JJA and Duffus P held:
A court may base its decision on an unpleaded issue if it appears from the course followed at
the trial that the issue has been left to the court to decide.
LIBYAN ARAB BANK VS INTERPCO [1985] HCB 73
Odoki J held
It is well settled that in considering application under O6 r 29, the court has to look at the
pleadings alone and any annextures thereto and not any subsequent affidavits. The affidavit
of counsel to the applicant and the 2 letters were not admissible for the purposes of
consideration of the application.
MIKIDADI KAWEESA VS ATTORNEY GENERAL [1973] HCB 114
Opu J Held
A plaint must disclose a cause of action. O 7r 11(a) is mandatory. This principle was applied in
HAMISI VS NATIONAL BANK OF INDIA [1937] 4 EACA 55 and SULLIVAN VS ALI MOHAMED
OSMAN [1959] EA 239 (Windham J).
DHANJI VS RAMBHAI LTD [1970] EA 515
Duffus, Law and Spry JJJA
The facts relied upon to make the appellant liable as an appellant should have been pleaded.
ONESIFORO BAMUWAYIRA AND 2 ORS VS THE AG [1973] HCB 59
Manyindo Ag J
The court has to look at a plaint in deciding whether it has a cause of action . the defendant is
under no obligation to ask for further and better particulars.
BIRAKWATE VS KILEMBE MINES LTD [1976] HCB 18
Kantinti J
It is mandatory to reject a plaint which discloses no cause of action. Followed in ALI MUSTAFA
VS SANGO BUS COMPANY [1975] HCB 93 AND NAGWOKO VS SIR CHARLES
TUTAHAMBA [1976] HCB 99
WRITTEN STATEMENT OF DEFENCE
CHARLES SENGENDO VS AG [1972] EA 516
Phadke J
Filing a WSD is a mandatory requirement and where the AG failed to do so, he was denied
leave to defend the case.; court quoted KANJI DEVJI VS DAMODAR [1934] 1 EACA that “a
defendant who fails to file a defence puts himself out of court and no longer has any locus
standi and can not be heard”.
UGANDA WHOLESALERS VS IMPEX HOUSE LTD [1971] HCB 245
Younds J held
A counter claim is tried separately only upon application of the plaintiff. O8 gave the court
discretion to order a separate trial of a counter claim where application had been made for such.
POSTS AND TELECOMMUNICATIONS VS TERRAZO PAVIORS [1993] EA 344
Onyiuke J
A written statement of defence is of no effect if the defendant fails to enter appearance.
DENIAL
JOSHI VS UGANDA SUGAR FACTORY [1968] EA 570
Held: De Lestang and Spry JJA
A refusal to admit is for all practical purposes a denial.
AMMENDMENT OF PLEADINGS
EASTERN BAKERY VS CASTELINO [1958]EA 461
Sir Keneth O’ Connor P
Generally, an appellate court will not interfere with the the discretion of the judge in allowing or
disallowing an amendment to a pleading unless it appears that in reaching his decision he has
proceeded upon wrong materials or a wrong principle.
Amendments to pleadings sought before the hearing should be freely allowed if they can be
made without injustice to the other side and there is no injustice if the other side can be
compensated by way of damages.
The principles applicable to pleadings apply to amendment of statements of defence
JB SEMUKIMA VS JOHN KADDU [1976] HCB 15
Saied Ag. C.J.
A pleading may be amended to determine the real questions in dispute between the parties.
GENERAL MANAGER, EAR VS THIERSTEIN [1968] EA 354
Harris J.
Its incumbent upon the court under O6 r18 of the CPR to ensure that the pleadings are in a
suitable form to enable the real questions of controversy between parties to be determined so
that the court should still consider the matter.
TALITUKA VS NAKENDO [1979] HCB 276 (covered under pleading)
COFFEE MARKETING BOARD VS FRANK KIZITO [1992-3] HCB 175
Mukanza J.
An applicant does not have to show a bonafide mistake in order to be granted leave to amend
the pleadings
SEBUNYA VS UCB [1992-3] HCB 224
Tinyinondi J.
No amendment to a plaint is allowed where it would introduce a new cause of action.
A proposed amendment should not violate the rules of pleadings. It should not be vague or a
mere muddle. It should be concise and material to the suit.
UNPLEADED ISSUES
FERNANDES VS PEOPLE NEWSPAPERS LTD [1971] 1 ULR 119
Law Ag P
Contributory Negligence has to be expressly pleaded by the Defendant and since contributory
negligence had not been pleaded, the court should not have considered it and reduced the
damages.
AG VS CHALRES BARANGA AND BENALD KAGWERE [1976] HCB 45
Wambuzi, Law and Musoke JJA
As a rule, a case must be decided on the issues raised in the pleadings except where an
unpleaded matter becomes as issue by consent or it is generally canvasses by both parties
without objection.
DANJI RAMJI VS RAMBHAI AND CO (UGANDA) LTD [1970] EA 515
Duffus P, Law JA, (Spry Dissenting)
The facts relied upon to make the appellant [or party- emphasis mine] liable should have to be
pleaded.
JAMES KAHIGIRIZA VS SEZI BUSASI (1982) HCB 148
Kato Ag. J
Departure from pleadings in a plaint is not permissible; thus where counsel departed from his
original pleadings was not permissible.
KAHWA AND BIKORWENDA VS UTC LTD [1978] HCB 318
Odoki Ag. J
The framing and settlement of issues is governed by O13 of the CPR and an issue arises when
a material proposition of law or fact is affirmed by one party and denied by the other; material
propositions being those propositions of fact or law which the plaintiff must allege in order to
show a cause of action to constitute a defence.
The object of pleadings is to bring the parties to a clear issue and delimit the same so that both
parties know beforehand the real issue for determination at the trial.
Although generally issues arise out of pleadings, issues may arise out of evidence adduced by
the parties at trial since under O13r3, court may frame issues from allegations made on oath by
the parties or persons and advocates on their behalf, in addition to being framed from pleadings
or contents of documents produced by either of them
Under O6r15, court is empowered to amend the issues or frame additional issues on such terms
as it may deem fit at any time before judgment and may in a like manner strike out any issues
appearing to be wrongly framed or introduced.