Civil Proceedings; Cases and Materials

COMMENCEMENT OF PROCEEDINGS

Principle: Service of notice to an advocate is in al 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 compnay’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 procceedings.

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. (cf. Unta Exports Vs Customs).

2) The court has a discretion to allow enlarge the time for filing an appealout 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 counter claim; 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 Registrars 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
registrars 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, Oder 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 defendants, service of the court processshould be effected on
them all.

EAGEN INSURANCE CO LTD VS ELIZEPHAN 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 tge 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 agains t 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 ei9ther 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 jurisdicition 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 defendnats’ 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 ineffectiveas 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 cvan 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 alaw suit 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 onthe 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 negligenty 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 deponed 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 cout 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 ich 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 GENARAL TRADING CO. VS JINJA CASH STORES LTD AND
ANOR [1965]EA 469 by SHERIDAN J.

RAMZANALI VS NURDIN [1963]ULR 37 (affords no clear principal 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
representnative 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 represenantative 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 unsuccessiful 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.

JOVELYN 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 tortuous 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 questionof 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 Police man’s duty for which the
Governement 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.

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 OSMAN VS AHMED SULEMAN AND ORS [1969] 13 EACA 1

Sir John Gray CJ

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] AC177 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 can not 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 FORTHALL 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 ahs ceased to exist must be struck out. In this case Post master 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 letter s 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 porposed defendant has elapsed. Followed MABIRO VS EAGLE,
STAR NAD BRITISH DOMINIONS INSURANCE CO LTD [1932] 1KB 485

PLEADINGS AND AMENDMENT OF PLEADINGS

R.K. KASULE VS MAKERERE UNIVERSITY KAMPALA [1975] HCB 376

Ssekandi J

Held

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 abnd 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 Mbarar
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 pleadede, 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 permisble.

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 before hand 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.