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Civil Procedure Notes 2 (002) (002) Final March 2020
Civil Procedure Notes 2 (002) (002) Final March 2020
Mediation
Under the current rules applicable in the Commercial Court and other
Divisions of the High Court, since 2007 for the commercial court and since
2013 for other Divisions of the High court, all suits filed must be subjected to
mandatory mediation, conducted by a judicial officer or any other Court
accredited Mediator, usually practicing Advocates who volunteer to serve.
The mediation must be concluded within 60 days of commencement, but the
time can be extended for good reason.
If mediation does not result into a settlement, the suit must be set down for
hearing. Hearing of a suit means the recording of evidence either orally or by
way of witness statements. There are no timelines within which mediation
must be commenced after filing the suit. A new amendment to the CPR
means that there will be parallel processes of mediation and Directions taking
place at the same time before the suit is sent for scheduling and eventually
hearing by a Judge or magistrate.
The first recorded case on the scope of Order 11A is that of Carlton Douglas
Kasirye vs. Sheena Ahumuza, Civil Application 150 of 2020, Bonifance
Wamala J of the Commercial court held generally and made wide ranging
observations on the application of Order 11A as follows-
(a) Summons for directions must always be taken out by the plaintiff within
28 days of the last pleading otherwise the suit abates.
(c) Order 11A Rule 1 (4) (e) creates an exception to the requirement under
sub-rule (6) to the effect that the rule applies to all actions instituted by
way of a plaint except an action in which a matter has been referred for
trial to an official referee or arbitrator
(e) (e) where a matter is referred by the Court to mediation, the plaintiff
would not be expected to take out summons for directions within 28
days provided for under sub-rule (2) of Rule 1.
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(f) mediation is no longer mandatory and the requirement for mandatory
mediation ceased to apply.
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Kauda of CID Frauds section was among the documents agreed upon by the
parties at a scheduling conference presided over by Bbosa J. as she then was.
On Appeal, Twinomujuni JA, who wrote the lead Judgment, agreed to by the
other members of the Coram, observed in respect to the document.
“it is not marked as a Court exhibit and D/ASP Kauda did not give
evidence in Court. The report suggests that the A/c No.3506 did not
belong to the Administrator General but to the Registrar General. It
does not explain however, how Lawrence Lagara, & J.B. Mukasa both
of whom were accountants of the appellant could have been signatories
of the account. In my view, the report has no evidential value and its
contents which were not tested in Court cannot be relied upon”.
The Court rejected this submission holding that in agreed fact Number 1, it
was stated-
“The plaintiffs were former employees of the former greater Bushenyi
District, the first defendant herein”.
Relying on the cases of Stanbic Bank (U) Limited vs Uganda Crocs SCCA
4/2004 and Tororo Cement Co Limited vs Frokina International Limited
SCCA 2 of 2011, the Court underscored the purpose and objects of a
scheduling conference under O.12 rule 1 of the CPR, which are inter alia, to
expedite trials before Court by enabling the parties to sort out points of
agreement at the earliest which need not be litigated upon.
“It is therefore, untenable for the 1st defendant who unequivocally admitted
to facts on Court record at the commencement of the trial to turn around and
attempt to renege on the same facts freely agreed upon and admitted. Such
attempt is rather futile and would amount to legal dishonesty – an absurdity
no reasonable Court of law would uphold”. Per Bashaijja J in Zimbiha’s
case.
The framing of issues is provided for in Order 15 of the CPR. An issue arises
whenever evidence on oath or from documents tendered or from the
pleadings, a material proposition of law or fact as alleged by one party is
denied by the opposite party. This means that a trial may raise issues of law
or issues of facts. The issues must be framed from the pleadings on record. In
Fernandes vs Peoples Newspaper Limited, cited in Captain Harry Gandy
23EACA, the Respondent filed no defence to the appellants claim for
damages for negligence and the appellant obtained interlocutory judgment.
On the assessment of damages, the Judge reduced the damages by half in
respect of appellants contributory negligence when no allegation of
negligence had ever been made against the appellant. On appeal the Court
held that as no allegation of negligence had been made against the appellant
by pleadings, the court could not find negligence against him.
Under Order 15 rule (1) (5) the duty to frame issues as may be necessary to
determine the dispute in controversy vests in the trial Court. In Odd Jobs vs
Mubia (1970) EA 476, the Kenyan Court held in accordance with its
equivalent of O.15 rule 1(5), which is identical to ours, that it is the duty of
the Court to frame such issues as may be necessary for determining the
matters in controversy between the Parties. The issues are ideally framed at
the start of the case and the evidence should be guided by the issues. The
court should decide the issues framed. However, the Court has wide
discretion to frame additional issues or amend issues and this can be done
during hearing or even at Judgment. When new issues are framed during
Judgment, the Judge should give an opportunity to the parties to address him
on those issues. In Oriental Insurance Brokers Limited vs Transocean
Uganda Limited SCCA 55 of 1995, it was held that under O.15 of the CPR, a
trial Court has the jurisdiction to frame, settle or determine issues in a suit.
Under O.15 rules 1(5), a trial Court has wide discretion to frame or amend
issues from all materials before it, including pleadings, evidence of the parties
and submissions from Counsel. The Court may amend issues or frame
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additional issues at any time including during Judgment and in doing so, the
Court may impose such terms as it thinks fit. In Jovelyn Barugahare vs
Attorney General SCCA 28/93, the ground of appeal was that the learned
judge erred when he rejected the framed issues by the parties and proceeded
to frame his own after the close of the evidence and submissions of the
parties. It was held that it is clear from order 15 that the issues are to be
framed by court after consultation with the parties or their advocates at the
beginning of the trial. The trial Judge is not bound by those issues. On the
contrary, the Judge may amend the issues, strike out some of them or even
add new ones any time before passing the decree. Where the trial court
amends the issues, it may be necessary to give parties the right to adduce
further evidence. Haji Mohamed Durvesh vs Villani & Fassion (1957) EA 91,
Fangamin vs. Belex Tours and Travel Civil Appeal 6 of 2013(SC).
In Somji vs Salum (1990-94) EA 564, it was held that where a Judge considers
an unpleaded issue at writing Judgment, the court should give Parties an
opportunity to address Court on the new issue.
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In Blay vs Polland & Morris (1930) IKB 682, it was held that a Court should
only decide issues on record. It is always advisable for a Judge of first
instance to decide all the issues raised in the case before him so that further
expense to the Parties and further delay caused by sending the case back, as
in this case for assessment of damages is avoided. Selle vs. Associated
Motorboat (1968) EA123.
A court may decide an issue which is not pleaded if the conduct of the parties
during the trial shows that the parties left the issue for the decision of the
court. Odd Jobbs v Mubia (1970) EA 476. f
In N.A.S Airport Services vs AG Kenya (1959) EA 53, it was held that though
the object of the Order (6 rule 27) is expedition, the point of law must be one
which can be decided fairly and squarely one way or the other, on facts
agreed or not in dispute /in issue on the pleadings and not one which will not
arise if some fact or facts in issue should be proved.
In URA vs UCC; HCCA 11/2006 & Bwama Exports Limited; HCCA 6/2003
Ogoola J stated-
“ I think where you have a point of law which if decided in one way is going
to be decisive of litigation, then advantage ought to be taken of the facilities
afforded by the rules of court to have it disposed of at the close of pleadings
or very shortly after the close of pleadings”
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rule on the matter of preliminary objection immediately even if it reserves the
reasons to be delivered in the judgment.
Preliminary objections in the Court of Appeal and in the Supreme Court: The
objection can be to the competency of the Appeal such as that no appeal lies
as a matter of law (either because no statute provides for it or it is an appeal
against a consent Judgment), failure to take an essential step or taking the
essential step in appeal out of time etc. The party objecting to an appeal on
any of the above grounds would have to file a formal application in order to
be able to raise the objection. In Prof Huqh vs. Islamic University of Mbale
(1995-98) EA117, it was held that objections to the competency of an appeal
must be raised by way of an application otherwise leave of court will be
required. The objection may relate to the manner in which the grounds of
appeal have been framed or in the case of an application to the drafting of
affidavits in support that offend the rules. See Male Mabirizi vs.
“Step” under the current rules and before must mean a step taken on the
record such as an interlocutory application. Victory Construction company vs.
Duggal(supra). In Shell Uganda vs. Agip SCCA 49/1995, it was held that to
amount to “a step in the proceedings” the action taken by the defence must be
a step-in furtherance of court proceedings. The step must be taken in court
and not outside. Mere talk between solicitors and their clerks or writing
letters is not enough. Taking out summons or something of that kind suffices.
Where the suit abates automatically pursuant to rule 5, the Plaintiff, may
subject to the law of limitation file a fresh suit. It remains to be interrogated
whether a suit that abates automatically can nevertheless be reinstated. Filing
a fresh suit can always be prejudicial for example, the action may be caught
by time. Therefore, in Rawal vs The Mombasa Hardware Limited (1969) EA
392, the Court of Appeal for East Africa, invoked inherent powers and
reinstated a suit dismissed under rule 6, citing special circumstances of the
case and held that the remedy in rule 6(that of filing a fresh suit) was not
intended to be exhaustive and the inherent powers of the Court was not
excluded. In Henry Muganwa Kajura vs. Joseph Sempebwa and others, Civil
Appeal 201 of 2019, the suit was dismissed in 2003 for want of prosecution
under 0rder 15 rule 6. In 2014, the suit was reinstated and heard on merit. The
Court of Appeal held that the suit was reinstated illegally because a suit
dismissed under rule 6 could not be reinstated. The court made no reference
to Rawal vs Mombasa Hardware above.
A suit may be dismissed under O.5 rule 1(2) (c) when summons is not served
or an application for extension of time has not been filed or has been
dismissed. In Bitamisi Namuddu vs Rwabuganda Godfrey SCCA 16/2004, it
was held that the consequences of failure to serve the summons within 21
days from the date of issue and of not making application for extension of
time in the prescribed period are clear and straight forward – the suit stands
dismissed without notice. The provision does not give Court discretion to
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decide whether to dismiss or not to dismiss the suit. The Courts action is
dictated by law and it is mandatory. The dismissal is also affected without
notice.
A suit may also be dismissed under Order 9 rules 16, 17 or 19. If a suit is
dismissed under O.9 rules 16 or 17, a fresh suit may be filed, or the suit may
be reinstated under O.9 rule 18. Where a suit is dismissed under O.9 rule 19,
a fresh suit may be instituted subject to the law of limitation.
A suit may be dismissed under O.9 rule 22, where only the defendant appears.
The plaintiff in that case must apply for reinstatement of the suit. In Patrick
Mayanja vs Uganda National Roads Authority, Civil suit 39 of 2016, the
Plaintiff’s suit was dismissed under order 9 rule 22. The Plaintiff filed a fresh
suit for the same cause of action. The Court struck out the fresh suit stating
that filing a fresh suit was an abuse of court process as the same was
prohibited by rule 22.
A suit will be dismissed on a notice to show cause under O.17 rule 2, where it
has been adjourned generally and no application is made to restore the suit to
the cause list generally within twelve months. In Victory Constructions
company vs Duggal, it was held that where parties to an action called to show
cause why the suit should not be dismissed for want of prosecution, the court
should be slow to make an order of dismissal if satisfied that the suit can be
heard without further delay, that the defendant will suffer no hardship and
that there has been no flagrant and culpable inactivity on the part of the
Plaintiff.
“it is very desirable that the trial should not be delayed for during the delay
witnesses might die or go abroad or their memory of occurrences might
become weak or confused”
In Nyiramakwene vs. Bitariho (1973)1 ULR 67; Court found that O.15 r.6
enables it on its own initiative without notice to either party to dismiss the
suit for an inordinate delay of two years. Court observed that the action
seemed to have been allowed to go to sleep for a little over three years, that it
is the duty of the plaintiff to bring his suit to early trial just as much as is the
duty of the adviser to get on with the case. That it is impossible to have a fair
trial after so long a time. Court observed that it was clear there had been
culpable and inexcusable inactivity on the part of the plaintiff which ought
not to be tolerated.
Cases such as Ayub Suleiman vs. Salim Kabambala SCCA 32 of 1995, which
held that a Court can still dismiss a suit for want of prosecution under its
inherent powers even where the facts did not fall under any of the scenarios
given by the rules would appear to still be relevant, hence in Abdul and
Another vs. Home and overseas (1971) EA 564 and Mukisa Biscuits (supra),
the principle is that the fact that the periods of delay did not fall within any of
the specific periods provided by the rules does not prevent the court from
exercising its inherent powers to dismiss the case. In both those cases, it was
held that the provisions of the CPR for the dismissal of suits for want of
prosecution do not purport to be exclusive and do not fetter the courts
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inherent jurisdiction to dismiss suits in circumstances not falling directly
within those provisions if it is necessary to do so to prevent injustice or abuse
of the process of court.
A Judge dismissing a suit under the foregoing Order should specifically state
the rule under which the suit has been dismissed. This helps the aggrieved
party to decide the proper course of action afterwards. In Horizon Coaches
Limited vs. Pan African Insurance Company Limited SCCA 2 of 2003, after
several adjournments to allow the appellant to produce evidence in support of
its counterclaim, the case came for hearing on 13.2.01. on this date, none of
the parties was present. The case was adjourned sine die. Later that day, the
Respondent’s counsel appeared. Judgment was entered in favour of the
Respondent, but the appellants counterclaim was dismissed. The Judge cited
no rule under which she had dismissed the counterclaim. The Appellant
applied to set aside the exparte Judgment. The application failed, the Judge
for the first time mentioning that she had dismissed the counterclaim under
O.15 rule 4 of the CPR. The Appellant’s appeal to the Court of Appeal failed
because the Court of Appeal held the view that on the authority of Salem A.H
Zaidi vs. Fayd H.Humeddan (1960)EA 92, such a decision could only be set
aside by appeal and not by application before the same court. It was held that
it was necessary to determine under what rule the Court dismissed the
counterclaim. The failure to cite the law left the appellant in a dilemma as to
which course of action to take. Where there are a number of provisions of the
law under which the same decision may be made but with different
consequences depending on which provision you proceed, like in the present
case, it would be desirable to mention the law.
Appeals can also be dismissed where on the day fixed for hearing the Appeal
the Appellant does not attend court. See rules 100 of the Court of Appeal
rules and 96 of the Supreme Court rules.
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It is trite that courts do not exist for the sake of discipline, but for the sake of
deciding matters in controversy. The administration of justice should
normally require that the substance of all disputes should be investigated and
decided on their merits and errors, or lapses should not necessarily debar a
litigant from the pursuit of his rights. Unless the other party will be greatly
prejudiced and cannot be taken care of by an order of costs, hearing and
determination of disputes should be fostered rather than hindered. Banco
Arabe Espanol vs Bank of Uganda (SCCA 8/98).
For an application under the rule to succeed, an Applicant must satisfy court
that there was “sufficient cause” for non-appearance i.e. that he had an honest
intention to attend the hearing and did his best to do so, and he was diligent in
applying. The main test for reinstatement of a suit is whether the applicant
honestly intended to attend the hearing and did his best to do so. See National
Insurance Corporation vs Mugenyi and Co Advocates SCCA 14 of 1985 and
Girado vs. Allan and Sons (1971) EA 448. It was held in the Girado case that
even where no sufficient cause has been shown for nonappearance court can
still, under its inherent powers, restore a suit dismissed for default, to avoid
injustice. In Shabir Din vs Ram Parkash Anand (1955) 22 EACA 48, it was
held that a mistake by plaintiffs’ counsel, though negligent, may be accepted.
In Nakiride vs Hotel International (1987) HCB 85, sickness of counsel was
accepted to constitute a just cause, just like in Crown Beverages Limited vs
Stanbic Bank Uganda Limited MC 181 of 2005, where Mr. Akampulira’s
claim of ill health was accepted though he had no medical report
accompanying it because the record showed he had not absented before.
Sufficient cause and good cause relate to the inability or failure to take a
particular step in time. Grounds accepted include mistake of counsel,
ignorance of procedure by unrepresented litigants, illness of a party, etc.
Video World Entertainment vs Jean Nammi MC 517/2014. The case of
Charles Kabagambe vs UPTC CS 681 of 1983 by late Justice C.K
Byamugisha on what amounts to doing your best to be present at the hearing
of the case.
A decision on a suit under rule 4 results into a Decree that bars subsequent
suits on the same facts. This means that the option of a new or fresh suit
being filed is not available and the suit cannot be reinstated. The Decree can
only be set aside by appeal. See Roadmaster cycles vs Tarlock Singh (1999-
2000) UCLR 378, Salem A. Zaidi vs Faud Hummedan (1968) EA 92 and
Uganda Development Bank vs. National Insurance Corporation and GM
Combined SCCA 28 of 1995.
Order 11 rules 1 and 2 of the CPR. A broad principle has emerged from
English decisions relating to consolidation applications. it is that, where there
are common questions of law and facts in actions having sufficient
importance in proportion to the rest of each action to render it desirable that
the whole of the matters should be disposed of at the same time, consolidation
should be ordered. Stumberg and Another vs. Porgieter (1970) EA 323.
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Under O.11 rule 1, the court may order consolidation of suits in which the
same or similar questions of law or fact are involved. Once that is done, the
court may order those proceedings in any of the suits to be stayed until further
orders.
Two suits involving Shell Uganda and one Madina Nassali (Civil suit
number 212 of 2019 & 54 of 2011) were consolidated pursuant to MA 1049
of 2015(HC) on the basis that they touched the same subject matter and the
question of law involved concerned the subject for determination in both suits
was ownership, both suits fall squarely within the ambit of 0.11 rule 1. This
order enables court to finally and conclusively determine the rights of the
parties and avoid a multiplicity of suits.
Care must be taken in the magistrate Courts to ensure the consolidation does
not cause or lead to exceeding jurisdiction of that court. Kivamukutesa
Consumers vs. Nelson Sebugwawo (1986) HCB 61
Appeals can also be consolidated pursuant to rules 101 and 97 of the Court of
Appeal and of the Supreme Court rules respectively.
Withdrawal of a suit.
“The principle of the rule is plain. It is that after the proceedings have
reached a certain stage the plaintiff, who has brought his adversary into
court, shall not be able to escape by a side door and avoid the contest. He is
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then to be no longer dominus litus, and it is for the Judge to say whether the
action shall be discontinued or not and upon what terms …The substance of
the provision is that after a stage of action has been reached at which the
adversaries are meeting face to face, it shall only be in the discretion of the
judge whether the Plaintiff shall be allowed to withdraw from the action so
as to retain the right of bringing another action for the same subject matter.
The reasons for withdrawal may be that the Plaintiff has realized that some
technical defect may defeat an otherwise good case. So, under rule 1(1), the
suit can be withdrawn, and a fresh suit may be filed. Under rule 1(2), the
Judge hearing an application for withdrawal of a suit may allow the
application with conditions as to costs and as to the filing of a fresh suit. An
application for withdrawal may be allowed on conditions that no new suit will
be filed. This would be the case where it can be shown that the withdrawal
will prejudice the other party bearing in mind that the object of Order 25 rule
1(2) is not to enable a plaintiff after he has failed to conduct his suit with
proper care and diligence and after his witnesses have failed to support his
case, to obtain an opportunity of commencing the trial afresh in order to avoid
the results of his previous bad conduct of the case so as to prejudice the
opposite party. In Stahlschmidt vs Watford (1879)4 QB at page 219, Mellor J
stated that-
“But the discretion thus given must be exercised within certain limitations
and so as not to take away from the defendant any advantage to which he is
fairly and reasonably entitled”
In Firipo Masanga vs. Buganda Saw Mills Limited (1973)1 ULR 130, after
issues had been framed and the plaintiff finished giving evidence, his counsel
applied for leave to withdraw the suit under order 22 rule 1(2) of the
CPR(now order 25 same rule). It was apparent that this rather unusual course
was adopted because of the unsatisfactory and confused evidence which the
plaintiff gave. The Application was resisted on the ground that plaintiff’s
counsel knew that he could not possibly succeed on the evidence. The Court
held that in such circumstances, it is judicious and fair, in the exercise of the
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courts discretion to impose a term in addition to the costs that no other action
shall be brought by the plaintiff for the same subject matter.
Where both parties to a suit apply to court under the rule to pass a Decree in
accordance with the compromise arrived at between them the court has no
powers to refuse to pass the decree on the grounds that it considers the
compromise to be too favorable to one of the parties. In Sourendra Nath vs
Gangappa (1970) 2Mys.L.J 478, it was held that the court has a duty not a
discretion to record a lawful compromise subject possibly to an inherent
power of refusal when a substantial injustice would be worked, or where the
agreement or compromise is barred by statute or if the compromise is a
nullity or where the compromise is not in the interest of the public or is
contrary to public policy.
The supreme court observes that the effect of this compromise was that the
first five issues leading to a decision on liability had been answered and what
was left was the 6th issue on damages. To the surprise of the parties, the Trial
Judge delivered Judgment against the Appellants stating that all the evidence
recorded could not simply be excluded and holding that the appellant were
trespassers and not therefore entitled to any compensation.
Section 7 of the CPA: Is a bar to the trial of a suit that raises issues that were
the subject of another suit tried and concluded by a court. It embodies the rule
of conclusiveness of judgments as to the points decided, in every subsequent
suit between the same parties. It is based partly on the maxim interest
republicae ut sit finis litium – there be an end to lawsuit and is based partly on
the maxim memo debet bis vexari pro una et eadem causa – no man should be
vexed twice over for the same cause. It was held in the case of Maniraguha
Gashumb vs Sam Nkundiye CACA 23 of 2005 decided in 2013 that
Resjudicata bars trial of another suit and therefore goes to jurisdiction of the
court in the second suit and cannot be waived.
The section is intended not only to prevent a new decision but also to prevent
a new investigation so that the same person cannot be harassed again and
again in various proceedings upon the same question. An erroneous decision
will be as much resjudicata as a correct one and a decision will not cease to
be resjudicata merely because the view of law on which it is based ceases to
represent the correct law owing to a later judicial decision or legislative
enactment.
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Perhaps the best expression of the rule appears in the case of Kamunye vs.
Pioneer Assurance Limited (1971) EA 263, where it is stated that-
(a) The matter directly and substantially in issue in the subsequent suit
must have been directly and substantially in issue in the former suit.
(b) The former suit must have been between the same parties or between
parties under whom they or any of them claim.
(c) Such parties must have been litigating under the same title in the
former suit.
(d) The court trying the former suit must have been a court competent to
try the subsequent suit or the suit in which such issue is subsequently
raised.
(e) Such matter in issue in the subsequent suit must have been heard and
finally decided in the first suit.
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a court of competent jurisdiction and therefore did not satisfy condition (d)
above.
“In this Petition however, it appears to us that the Petitioners feel that when
a case is dismissed on a point of law then the dispute has not been
adjudicated upon. It appears to us that the Petitioners take the view that a
dismissal of a case on a point of law is akin to a dismissal of the case on a
technicality. Nothing is further from the truth. A dismissal on a point of law is
fundamental and in the eyes of the law resolves the dispute unless if there is
an appeal and the dismissal is set aside with or without further orders. The
matter was therefore determined by the High court and as a result we find it
resjudicata in respect of enforcement and no further suit can be brought at
the High court or any other court in this regard”.
See Lugobe vs. Barclays Bank Uganda Limited (1973)1 ULR 86.
The plea of resjudicata must not only be pleaded, it must be proved. See
Mandavia vs Singh (1965) EA118. In Farook Aziz vs Abdalla Abdu Maruku
SCCA 4 of 2002, it was held that it is not sufficient merely to plead the
defence of resjudicata without evidence to substantiate it. Oral evidence in
court is not sufficient to establish the plea, but rather the proceedings or
judgments of the first court must be tendered in evidence in order to establish
the parties, the subject matter of the dispute and the decisions of the court.
There is no res judicata where the claims of the plaintiff are inconsistent and
mutually destructive. A party suing for misfeasance, can sue for nonfeasance
later. Gurbachan Singh vs. Yowani Ekaru (1958) EA 450.
In High Court Civil Suit no. 1314 of 2000; Bank of Baroda vs. SDV
Transami (U) Limited Justice Lugayizi (as he then was) explained that the
above provision simply means that a court in Uganda is prohibited from
trying a matter involving litigants or their agents who are also litigants in an
earlier unresolved matter (in Uganda) which has substantially the same
issues for determination as the subsequent matter. section 6 is founded on
the maxim res sub judice based on public policy which aims to confine a
Plaintiff to one litigation and to obviate the possibility of two contradictory
judgments by one and the same court in respect of the same relief. Chitaley
and Rao, the learned authors of Commentaries on The Code of Procedure
of India (V of 1908), 7th Edition at page 214 commenting on the scope of
section 10 which is in parimateri with section 6 said that the object of the
rule contained in section 12 of the Code (now s.10) is to prevent Courts of
concurrent jurisdiction from simultaneously entertaining and adjudicating
upon two parallel litigations in respect of the same cause of action, the same
subject matter and the same relief. The policy of the law is to confine the
plaintiff to one litigation, thus obviating the possibility of contradictory
verdicts by two or more Courts in respect of the same relief.” In Sagar
Shamsher Jang Bahadur vs. The Union of India and others AIR 1979
Delhi 118, the Delhi High Court held inter alia that the object of this section
is to prevent courts of concurrent jurisdiction from simultaneously trying two
parallel suits relating to same questions in dispute. In National Institute of
Mental Health & Neurosciences vs. C. Parameshwara AIR 2005 SC 242,
the Supreme Court of India held that the object of section 10 is to prevent
courts of concurrent jurisdiction from simultaneously trying two parallel suits
in respect of the same matter in issue. The object underlying section 10 is to
avoid two parallel trials on the same issue by two Courts and to avoid
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recording of conflicting findings on issues which are directly and
substantially in issue in a previously instituted suit. Therefore, the test under
section 6 of the CPA is:
At page 223 of Chitaley and Rao (supra), the learned authors observe that;
It is not necessary for the application of the section that all the parties on
either side should be the same in both suits. It is enough if there is a
substantial identity of the parties.” This conclusion is based on the decision
in Raja Ram Estate vs. Niharmoni Law and Another 2006(3) CHN 465
where the Calcutta High Court held that section 10 of the Indian Code of
Procedure is not made inapplicable by reason of one additional party to one
of the suits.
Matter directly and substantially in issue in both suits: in the case of Raja
Ram Estate vs. Niharmoni Law and Another (supra) at 3 thereof. In that
case, the suit in the City Civil Court of India was for cancellation of a
development agreement. The other suit in the Calcutta High Court was for
specific performance. The Court observed that the validity of the agreement
was a common feature in both suits. In his judgment, Kumar Banerjee J held
that:
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“In the present case, the City Civil Court suit was for
cancellation of the development agreement whereas the
Calcutta suit is for specific performance of the same.
Hence, validity of the agreement is a common feature in
both suits. If I take into account the said factor, only the
second suit is liable to be stayed. However, let us examine
whether the judgment of the first suit can apply as res
judicata in the later suit or not. If the City Civil Court suit
is decreed in favor of the plaintiff and thereby the
development agreement is declared as cancelled, the
Calcutta High Court suit being the later one would
automatically fail.”
A successful party is entitled to costs unless the court orders otherwise. Put
the other way, costs follow the event. The event is either a dismissal or an
order allowing the suit. When the suit is allowed, the costs of the suit will be
paid by the defendant. When the suit is dismissed, the costs are payable by
the plaintiff. In Hussein Jan Mohamed & Sons Ltd vs Twentsche Overseas
Trading Co. Ltd (1967) EA 287, it was held, approving Mulla’s commentary
on section 27 of the CPA thus –
“the general rule is that costs shall follow the event unless the court,
for a good reason, otherwise orders. This means that the successful
party is entitled to costs unless he is guilty of misconduct or there is
some other good cause for not awarding costs to him. The court may
not only consider the conduct of the party in the actual litigation, but
the matters which led up to the litigation.”
In Devran Nanji Handus Kalidas Dawda (1949) 16 EACA 35; the Court of
Appeal held –
27
“a successful defendant can only be deprived of his costs when it is
shown that his conduct either prior to or during the course of the suit
has led to litigation which but for his own conduct might have been
averted.”
In Uganda Transport Co.vs. Outa (1985) HCB 27; the Judge struck out the
plaint and he did not award costs for the appellant for the reason that counsel
did not ask for costs. Court found that the award of costs is in the discretion
of Court under S.27 of the CPA. The reasons given by the trial Judge that
counsel did not apply for costs was not a sound reason for the judicial
exercise of the discretion. In other words, costs follow the event.
“Before I take leave of this case, I must say I am disappointed that the
plaintiff’s counsel made no effort at all to provide any assistance to
this court in terms of legal authorities in support of the plaintiff’s case.
The case was just thrown at the court. This is unacceptable. For that
reason, I shall award the plaintiff half of the costs of appeal.”
A cross appeal lodged against the order awarding half the costs succeeded,
the CA holding that –
(a) Where a trial court has exercised its discretion on costs, an appellate
court should not interfere unless the discretion has been exercised
injudiciously or on wrong principles. Where it gives no reasons for its
decision, the appellate court will interfere if it is satisfied that the order
is wrong. It will also interfere where reasons are given but reasons do
not constitute good reasons within the meaning of the rule.
28
(b)The mistake of counsel should not be visited on his client. The
respondent was the successful party entitled to costs and the reasons
given were not good.
So, costs may be denied if an offer similar to the results of the judgment was
made and unreasonably rejected; where notice of action was not given and
there is evidence that if it had been given the defendant would have paid.
Wambugu vs Public Service Commissioner (1972) EA 296; in matrimonial
cases or in cases where parties are related, where there is partial success, half
costs may be awarded. if it is a public interest litigation, costs may be denied.
In Muwanga Kivumbi vs AG SC Constitution Appeal 6 of 2011, it was held
that in public interest litigation, a court should exercise its discretion to award
costs infrequently and where costs are awarded in public interest litigation
cases, the award should be nominal. In Twinobusingye vs AG Constitutional
reference 27/2018, Justice Keneth Kakuru commented –
“As to costs, a practice has evolved in this and other courts that parties
who seek to enforce in courts of law fundamental human rights
enshrined in the bill of right in this country’s constitution should not
seek legal costs. This is a good practice that was adopted in this very
petition. The rationale for this is that no one should be seen to be
profiting from a matter in which he or she has no interest beyond that
of other members of the public. Secondly, in every constitutional
petition, the AG is a statutory respondent representing the government
elected by the people. Whenever costs are awarded against the AG
29
they are paid out of public funds. A person who brings a public interest
action would then be requiring the same public to pay him or her costs.
In the event that a public interest petitioner or litigant is unsuccessful
and is condemned to pay costs, that too would be unfair. One
individual would have to pay costs in a matter that he or she has no
interest beyond that of the other members of the public. This would
create a chilling effect and stifle the enforcement of rights and the
growth of constitutionalism.”
Even in some matters where litigants have had personal interests courts have
declined to grant costs on account of the public interest of the matter. In
Presidential Petition 1 of 2001, Okoki CJ held –
“In the case of Major General David Tinyefuza, this court ordered
each party to bear its costs although the appeal was dismissed. The
court reasons for doing so, were that in order to encourage
constitutional litigation parties who go to court should not be saddled
with the opposite party’s costs if they lose. If potential litigants know
that they would face prohibitive costs of litigation, they would think
twice before taking constitutional issues to court. Such discouragement
would have adverse effect on development of the exercise of court’s
jurisdiction of judicial review of the conduct of authorities or
individuals which are unconstitutional, it would also stifle the growth
of our constitutional jurisprudence.”
Court ordering counsel to pay costs personally- this is possible where counsel
has been negligent in handling his client’s brief. An advocate should be heard
before such order is made against him, in default of which the order would be
set aside on appeal – JB Kohlil & Others vs Bachulal Popallac (1964) EA
219 and Kamurasi Charles vs Accord Properties Limited (2000)1 EA 90.
Costs have no limit – see Atto vs. Alwala (1986) HCB 65. These were
affiliation proceedings and the Court held that costs in any suit have no limit
and that the Magistrate Court can award costs which exceed the pecuniary
jurisdiction of a presiding Magistrate provided they were incurred during the
course of litigation.
The successful party files a bill of costs prepared in accordance with the
Advocates Remuneration & Taxation of Costs Rules, applicable to the High
Court and Magistrates Court. In the upper courts, the bills of costs are filed
under rules and the schedule to the rules applicable to those courts. In all, are
taxed by the Registrars. If dissatisfied by the Registrar, issue can be referred
to a single Judge and on to the full bench. The principles of taxation of costs
in the High Court and upper courts are well enumerated in several cases
including – Uganda Blanket manufacturers vs.
Interest is awarded on the ground that a party has withheld money belonging
to the other unjustifiably. The award of interest or the amount of interest or
the date of the award is discretionary, except where parties to a dispute had
agreed to a rate in which case it will be awarded unless it is found to be
31
illegal or unconscionable or fraudulent. Shah vs Guiders International Bank
Limited (2002)1EA 269.
Under Section 26, interest can be awarded from the date of the cause of
action or the date of filing the plaint or from the date of judgment. Interest on
general damages (assessed at the time of judgment) is usually awarded from
the date of judgment. In Kibwana & Another vs Jambe (1990-94) EA 223, it
was held that in a claim for general damages, no interest can be awarded for
the period prior to the delivery of judgment because before the delivery of
judgment which awarded the general damages, the plaintiff was not entitled
to any particular amount which could attract interest. Interest on general
damages is only due after judgment, see also Prem Lata vs Peter Musa
Mbuju (1965) EA 592.
In Lwanga vs. Centenary Rural Development Bank (1999) IEA 175, it was
held that an employee wrongfully dismissed is entitled to interest on his
awards from the date of cause of action. In Kanabolic Group of Company
(U) Ltd vs Sugar Corporation of Uganda SCCA 15 of 1994, It was held that a
court exercises discretion when ordering for payment of interest. In practice
where interest has been properly asked for by a litigant deprivation of interest
should be supported by reasons.
32
“Clearly the court has discretion to award reasonable interest on the
decretal mount. But it appears that a distinction must be made between
awards arising out of commercial or business transactions which
would normally attract a higher interest, and awards of general
damages which are mainly compensatory. There is merit in the
challenge of interest of 25% awarded on general damages. It is too
high and must be reduced to 8%.”
(b) From the date of filing suit till judgment. This is applicable where a
debt is due at the time of filing the suit.
It is therefore apparent from the many reviewed cases that courts make a
distinction between commercial disputes which attract a higher rate than other
33
ordinary disputes whose rate may be lower- Ecta’s case and further,
distinction is made between claims in foreign currency which attract a lower
rate consistent with the rate applicable on loans advanced in foreign currency
compared to awards in Uganda shillings, the rate of which ranges between
10% to 25% and which is always simply assumed rather than proved.
Denying interest. The case of Uganda water and Sanitation NGO versus
John Byaruhanga, Civil Appeal 68 of 2003(CA) offers an example when a
person may be denied interest. Following his dismissal, the employer sent a
cheque for 18.6 m to the Respondent to his Advocates which he rejected. The
court found that he was entitled to that same amount and denied him interest
on that sum.
Rule 1. The Court may if sufficient cause is shown, at any stage of the suit
grant time to the Parties or to any of them and may from time to time adjourn
the hearing of the suit.
Interpreted-
34
adjournment. What is sufficient cause depends upon the circumstances
of each case.
Generally speaking, where the necessity for the adjournment is not due to
anything for which the party applying for it is responsible, or where there has
been little or no negligence on his part, an adjournment would not normally
be refused. But where the Party has been wanting in due diligence or is guilty
of negligence an adjournment may be refused. These circumstances have
been accepted as constituting sufficient cause.
(a) Where a Party is not ready for the hearing by reason of his having been
taken by surprise, such as where a new matter arises at the trial which
catches the party unawares. Salongo vs. Nantengolola(1976) HCB 20.
(c) Where his witnesses fail to appear for the hearing owing to non-service of
summons to them when such nonservice is not due to the fault of the
Party.
(d)Where the absence of witnesses is due to bona fide mistake on the part of
the Party.
(e) Where a Party is not ready owing to his lawyer having withdrawn his
appearance in the case under circumstances which do not give the Party
sufficient time to engage another lawyer and enable him to get ready.
(f) Where the refusal of an adjournment to a Party will enable the opposite
party to successfully evade a previous interim order against him.
35
An appellate court would normally not interfere with the exercise of the
discretion unless it has been exercised injudiciously.
In Sherief Yusufu vs Phillip Kioki (1951) 24(2) KLR 75, the plaintiff had
telegraphed the Courts that he was sick in hospital. It was held that a court
cannot grant an adjournment requested for by a letter of a plaintiff who does
not appear. In Acaali Manzi vs Nile Bank HCCS 87 of 1993 (1994) KALR
123, an application for adjournment by letter was not accepted by Tsekooko
J. he held that applications for adjournments by letter would not be accepted
under normal circumstances.
We consider injunctions, security for costs and arrest and attachment before
Judgments:
37
c) Where Court cannot make up its mind after considering the
above criteria, the applicant must satisfy it that the balance of
convenience lies in his or her favour.
A prima facie case: The court must be satisfied that the claim is not
frivolous or vexatious and that there is a serious question to be tried.
American Cynamide vs Ethicon (1975) ALLER 504. A prima facie case
with a probability of success is no more than that the court must be
satisfied that the claim is not frivolous or vexatious. In other words, that
there is a serious question to be tried. The applicant is required at this
stage to show a probability of success but not success. Robert Kavuma vs
Hotel International SCCA 8 of 1990 (1993)2 KALR 73 (per Wambuzi CJ);
Kiyimba Kaggwa, Devon vs Bhades (1972) EA 22.
Status quo is purely a question of fact and simply denotes the existing state
of affairs existing before a given particular point in time and the relevant
consideration is the point in time at which acts complained of as affecting
or likely to affect the existing state of things. Damel Mukwaya vs
Administrator General; HCCS 630 of 1993, Rainbow Musoke vs Ahamade
Kesale (1987) HCB 81, Board of Governors of Kawempe Muslim vs
Hussein Kasekende. MC 637 of 2006, it was considered as meeting the
ends of Justice to allow Kasekende to sit his O’level exam held once in a
year.
Moody vs Cox & Anor (1916-17) ALLE R 548 applied in Anifa Kawooya
vs AG MA 46 of 2010 (CA), where the NRM disobeyed a court order with
the active participation of the Applicant- Justice Arach held in an
application for an injunction by Anifa Kawooya seeking to stop the
National Council for Higher Education from cancelling the certificate of
equivalence given to her until the disposal of her constitutional petition
that-
“The applicant is the sort of person who does not respect court
orders especially those against her. In those circumstances, the
court finds that the Applicant has not come to this court with
clean hands and does not deserve an equitable remedy from this
court. An injunction being an equitable remedy, the party
seeking it must come to court with clean hands. Anyone whose
conduct has been improper in any relevant way in some
40
transaction who wants relief in equity will be refused the remedy
(Equitable remedies by Pry 4th edition Pages 484 – 490)”
41
(a) Because of the abuse of interim exparte orders in the 80’s and 90s, the
CPR was amended in 1994 to provide that every application for
injunction was preceded with notice to the party affected.
(b)Interim orders are now sought under the inherent powers of court in
clear, critical and deserving situations to prevent abuse of the process
of the court.
The grant of interim orders is meant to help parties to preserve the status
quo then to have the main issues between them determined by the full
court as per the rules. See Yakobo Sekungu vs Crensio Mukasa, Civil
Application 5 of 2013 and Guiliano Garigo vs Clausdio Casadio Civil
Application 3 of 2013.
43
“The powers of this Court are therefore wide and this Court is
not bound by Order 39 rule 4 of the CPR. In exercising our
discretion, we are guided by principles which are laid down in
England. In the case of Wilson V. Church (No.2) (1879) 12
CHLR 455 where the Court held that where an unsuccessful
party is exercising an unrestricted right to appeal, it is the duty
of the Court in ordinary cases to make such orders for staying
proceedings under the judgment appealed from that will prevent
the appeal, if successful from being nugatory. This decision was
followed in Somalia Democratic Republic vs Andop Sunderlal
Treon Civil Application No.11 of 1988. In the instant case, the
subject matter of the suit was a plot with buildings thereon.
After demolishing the disputed building which the applicant
wished to preserve, any order of the Court to effect that intention
will be nugatory. The 5th respondent cannot be allowed to
benefit from his illegal act by going ahead to develop the land
that is still the subject matter of this dispute…..We allow the
application and grant an order of injunction stopping the
respondents from further developments of the suit property, and
a stay of execution generally until the disposal of the appeal.”
The power to attach before Judgment must not be exercised lightly and
only upon clear proof of the mischief aimed at O.38 rule 5 namely that
the defendant was about to dispose of his property or to remove it from
the jurisdiction with intent to obstruct or delay any Decree that may be
passed against him. The attachment before Judgment should be slow
because-
44
(ii) The time-consuming process of court may result in the rights and
liabilities of the parties not being determined for a long time –
Kanyoko vs Nderu (1986-89) EA 237.
In the Court of Appeal and the Supreme Court an appeal is accompanied with
security for costs of UGS 200,000 and UGS 400,000 respectively. Where a
respondent believes that its costs will be more, he or she is entitled to apply
for further security for costs under rule 105(3) of Court of Appeal rules or
101(3) of the Supreme Court rules.
In Anthony Namboro vs Henry Kaala (1975) HCB HCB 315 Sekandi J held
on an application for security for costs that the main consideration to be taken
into account in an application for s.f.c are –
(b)If there is a strong prima facie presumption that the defendant will fail
in his defence to the action, the Court may refuse him S.F.C. It may be
a denial of justice to order a plaintiff to give S.F.C. to a defendant who
has no defence to the claim.
An order for security for costs is not on full indemnity basis and the amount
to be deposited the discretion of Court, exercised with regard to the
circumstances of each case.
Rule 101 of the supreme court rules provides for payment of security for
costs, unless exempted. In Noble Builders (U) Ltd vs Jaspal Singh Sandhu
(MA 15 of 2002). Interpreting rules 101 and 109 of the supreme court rules,
Justice Mulenga stated that the general principle is that an appellant should
48
provide security for costs of the appeal unless the Court exempts him due to
inability. A cross appellant would be required to deposit further security once
the appeal is withdrawn. The burden lies on the applicant to show sufficient
cause why the appellant should furnish further security for costs over and
above that fixed by the rule. What is sufficient is in the discretion of Court.
Demonstrable lack of reasonable chance of success for an appeal is sufficient
cause for the Court to order an appellant to furnish further security for costs
or for past cost. The Court should more readily grant an order for security on
appeal where the applicant has already incurred substantial costs, which
remain unpaid.
In DeBry vs Fitzgerald & Another (1990)1 AII E.R 560, it was held,
Donaldson MR –
“A defendant should be entitled to security if there is reason to believe
that in the event of his succeeding and being awarded costs of the
action, he will have real difficulty in enforcing that order. If the
difficulty would arise from the impecuniosity of the plaintiff, the Court
will of course have to take an account of the likelihood of his
succeeding in his claim, for it would be a total denial of justice that
poverty should bar him from putting forward what is prima facie a
good claim. If, on the other hand, the problem is not that the plaintiff
is impecunious but that, by reason of the way in which he orders his
affairs, including where he chooses to live and where he chooses to
49
keep his assets, an order for costs against him is likely to be
unenforceable, or enforceable only by a significant expenditure of time
and money, the defendant should be entitled to security.”
Under S.25 CPA it is provided that the Court after the case has been heard
shall pronounce judgment. Under O. 21 r.1, in suits where a hearing is
necessary, a Court after the case has been heard shall pronounce judgment in
open Court either at once or on some future date of which notice shall be
given to the parties.
Judgments given by Courts must be signed and dated in open Court by the
Judge who pronounces such judgments and the judgment once signed shall
not afterwards be altered or added to save as provided for in the S.99 of the
CPA or on review.
Judgment in defended cases must contain concise statement of the case; O.21
r.4, the point for determination, the decision thereon and reasons for such
decisions. Court under O.18 r.5 is required to state its decision on each and
every issue where issues are framed and the reason therefor unless the finding
upon any one or more issues is sufficient for the decision of the Court.
A Judgment of Court binds parties and must be obeyed. And failure to obey
court orders has consequences and courts do not look back as court orders are
violated, even by parties who believe that the Judgment is wrong or even
illegal. Where a person is aggrieved by a judgment, he or she must address
the grievance through the channels of setting aside, appeal, review or
revision. See Housing Finance Bank vs. Edward Musisi, Civil Application
158 of 2010(CA) and Amrit Goyal vs Harichand (Supra). A party in contempt
of court orders is no allowed to seek any remedy from court until he or she
has cleansed himself of the contempt.
Types of Judgments:
2. Interlocutory judgment O.9 r.8: This is given where the plaintiff files a
plaint claiming pecuniary damages or for detention of goods with or
without a claim for pecuniary damages and the defendant does not file
a defence at all or within the time allowed in the summons.
O.50 of the CPR empowers the Registrar to enter these judgments and
in case of Magistrate’s Court then the Magistrate. Interlocutory
judgment determines liability and is not final, the final judgment occurs
after assessment of damages/value of goods or mesne profits. Kalon
Mubiru vs AG (1979) HCB.
The power given to court under the rule is discretionary and must be
exercised judiciously and circumspectly. Thus, where a case involves
complicated questions which cannot be disposed of conveniently the
court should decline to exercise its discretion against a party who is
seeking judgment on admission. See Choitram vs.Nazari (1976-85) EA
53 and Brian Kaggwa vs Peter Mulamira CACA 26 of 2009. See also
the case of Nomayi vs Hatiniy (2003) EA 60 on what amounts to an
admission, whether a sum admitted but not sued for can result into a
judgment on admission
54
proceed by way of formal proof of the claim, the defendant having
excluded himself from hearing either by –
7. Ordinary Judgment: The rules of natural justice require that each party
to a suit must be heard, whereby plaintiff files his plaint and serve on to
defendant together with summon which allow him to defend the suit if
he files his defence in time as summons requires plaintiff will be
accorded opportunity to call evidence; he then closes the case, Court
affords the defendant to present his defence to the claim by calling
defence witnesses. He then closes his case. Having heard the parties
Court will proceed to make a decision by giving judgment. Such
Judgment is called an ordinary Judgment.
The Decree
The decree obtained under O. 21 r.6 shall agree with the judgment. A decree
which is not in conformity with the judgment is liable to be set aside for a
party to the suit cannot suffer because of the errors committed by the court.
Highway Furniture Mart vs. PS (2006) 2 EA 95. The Decree shall also
contain the number of the suit, names and description of the parties, the
particulars of the plaint and shall specify clearly the relief granted.
There is preliminary decree where further steps are necessary for example
under O.9 r.8 where the suit is set down for assessment of damages, after
which the party obtains a final decree. There can also be more than one
preliminary decree in a suit. The determination whether a court has
jurisdiction or not results into a preliminary Decree. Mandavia vs CIT (1958)
EA410. Similarly, a preliminary Decree arises on determination of liability
where the suit is then adjourned for assessment of damages. William James
56
Baker vs Rush (1964) EA 602 and GR Mandavia vs Rattan Singh (1964) EA
118.
O.18 r.7(2); it shall be the duty of the party who is successful in a suit in the
High Court to prepare without delay a draft decree and submit it for the
approval of the other party who shall approve it with or without amendment
or reject it without undue delay. In Asadi vs. Ola (1985) HCB; Court held
that the general duty of extracting a decree is imposed upon a successful party
because it is presumed that he will be anxious to execute the judgment. If the
draft is approved by the parties it shall be submitted to the Registrar who if is
satisfied that it is drawn up according to judgment shall sign and seal the
decree accordingly, if all the parties and Registrar do not agree upon the
terms of the decree within such time as the Registrar shall fix, it shall be
settled by the Judge who settled the case and the parties entitled to be heard
thereon.
Even unsuccessful parties can extract a decree, for example when they want
to appeal. See Eastern Province Bus Co. (1970) U.L.R. 87; it was found in
this case that under O.21 r.7 CPR, it is the duty of a successful party to have
in the first instance prepare a draft decree but if he does not do so and the
other party desires to appeal he will take steps to have the decree extracted.
The applicant appealed against judgment and decree on issues both of
liability and quantum of damages. By consent of the parties Court first
decided the question of liability and quantum left to be settled by parties. No
decree was extracted and several months later, the parties having failed to
settle on quantum, the suit was set down for hearing and a sum of money was
awarded. Counsel for defendant appealed against the judgment on both
issues. Court found that there were two judgments in the case. The
preliminary in which the issue of liability was disposed off and upon which
by reason of S.25 of the CPA, a decree should have been extracted and the
final one after disposing of the question of damages. See also G.R Mandavia
vs Rattan Singh (1964) EA 118.
The scope of this rule has been considered in many cases and is
sometimes compared with rule 27 (formerly rule 24), in which case, it
has been held or emphasized that under rule 12, the Court’s discretion
is wide unlike rule 27, where the discretion is based on the two grounds
set in that rule. Nicholas Rossous vs. GullamHussein Habib Virani,
Civil Appeal No.9/1993 and Captain Phillip Ongom vs. Catherine
Nyero Owota SCCA 14 of 2001. The Court in the Phillip Ongom case
held-
59
aside the exparte decree, subject to any conditions the court may deem
fit.
It has been stated that the standard of proof under rule 12 is much lower
because there is unfettered discretion compared to the standard of proof
under rule 27 which is higher because there is limited discretion to
grant the application. Accordingly, filing an application under one
instead of another will not be a mere technicality curable by
amendment under article 26 but will be fatal. See Kaweesi Agro
Projects vs Greenland Bank Limited (MA.68 of 2003)
“Prima facie, any order made in the presence and with the
consent of counsel is binding on all the parties to the
proceedings or action and on those claiming under them. ….and
cannot be varied or discharged unless obtained by fraud or
collusion or by an agreement contrary to the policy of the
court ..or if consent was given without sufficient material facts,
or in misapprehension or in ignorance of material facts or in
general for a reason which would enable the Court to set aside
an agreement”
Consent judgment are also set aside pursuant to order 9 rule 12. That
rule has been held to confer wide discretion to court to set aside
judgments to which it applies. However, the wide discretion under that
rule does not apply if the judgment sought to be set aside is a consent
judgment. This is because it is settled law that a consent judgment is
only interfered with in limited circumstances. See Attorney General vs
James Mark Kamoga and Another (supra) clarifying that Ladak
Abdullah Mohammed Hussein vs Griffith Insingoma Kakiza, Civil
Appeal 8 of 1995(SC) was wrongly decided to that extent.
61
In Neale vs Gordon Lennox (1902) AC 465 The plaintiff in an action
for defamation of character had authorized her counsel to consent to a
reference on condition that all imputations on her character were
publicly disclaimed in Court. Her counsel did not make the limitations
of his authority to counsel for the defendant. Both agreed to refer the
action without any disclaimer of imputation. It was held that the
counsel had exceeded authority and the reference was set aside.
Post Judgment corrective remedies- Inherent Powers and the slip rule
Courts make errors advertently or inadvertently and where they so do, the law
and rules regulating the conduct of civil litigation provide mechanisms for
correction of such errors. The operation of the slip rule and the issuance of
slip orders is on the basis that courts of law are manned by human beings and
now and then through human failure, an error or an omission can happen,
through inadvertency in a judgment being made by court. The slip rule and
the slip orders therefore deal with clerical or arithmetical mistakes arising
from accidental slips and or omissions or where the order of the court does
not correspond with the Judgment or ruling of the court it purports to embody
. slip orders are made by courts for achieving the ends of justice by court that
passed the judgment self-correcting itself in respect of the committed clerical
or arithmetic mistake or omission. Courts correct their own decisions in cases
of error or mistakes under section 99 of the CPA. Section 99 of the CPA
provides that clerical or arithmetical mistakes arising therein from any
accidental slip or omission may at any stage be corrected by the Court either
on its own motion or on application of any of the parties.
62
Under rules 36 and rule 35(1) of the Court of Appeal and the Supreme Court
rules, both courts can correct clerical or arithmetical mistakes in any
judgment of Court or any error arising therein from an accidental slip or
omission at any time whether before or after judgment has been embodied in
an order and this can be at the instance of the Court on its own motion or on
application of any interested party so as to give effect to what was the
intention of Court when judgment was given (Court sitting in its own
judgment).
The jurisdiction of the Court to recall its judgment and correct or otherwise
alter the judgment or set it aside is circumscribed and in resolving such
applications, the court has to balance two principles namely, the principle of
“finality of litigation” and the “justice principle”.
In Lakhamshini Brothers Ltd vs Raja and sons (1966) EA 313, It was stated
that
The finality principle is on the basis of public interest and public policy. it is
premised on the need for stability and consistency in law. Contrasted with the
above principle of finality of litigation is the justice principle that provides for
the court of law to carry out in the exercise of judicial powers, limited review
of review of its judgment where circumstances so warrant based on the
rationale that the object of litigation is to do justice to the parties and to boost
the confidence of the public in the justice system . If justice can only be
achieved through limited review by the court of its own judgment, under
strictly circumscribed powers, then be it.
The jurisdiction to recall a judgment and review it is not limited to the slip
rule. It may be exercised under the inherent power of court found in rule 2(2)
63
of the rules of Court. In order for this rule to apply, the order sought must be
for achieving the ends of justice or to avoid the abuse of the process of Court.
Pursuant to the above two purposes, the court can set aside its judgment that
has been proved null and void. Setting aside judgments that have been proved
null and void is just an example of what the Court can do under rule 2(2) to
achieve the ends of justice or t0 avoid the abuse of court process, although the
cases now appear to mix up the issue by citing setting aside judgments that
have been proved null and void as one of the purposes of rule 2(2). See Isaya
Kalya and others vs Moses Macekenyu Ikagobya, Civil Application 28 of
2015. Be that as it may, following this rule, the Court in Livingstone
Sewanyana vs. Martin Aliker Civil Application 4 of 1991 was prepared to
recall and set aside its judgment if fraud had been proved and in NPART vs.
General Parts, Civil Application 8 of 2000, the Court appeared prepared to
avoid the strict application of rule 29(barring admission of additional
evidence on a second appeal) in order to do justice but came to the conclusion
that this was not a case of admission of additional evidence. Several years
later in Afric Cooperative Society vs Attorney General Civil Application 6 of
2012 and in Commissioner Land Registration vs. Emmanuel Lukwajju, Civil
Application 12 of 2016 the supreme court invoked rule 2(2) to allow
additional evidence on a second appeal. In Sophatia Beth vs Nangobi Jane,
Civil Application 42 of 2019, the Supreme court invoked rule 2(2) and set
aside its judgment in Civil Appeal 6 of 2018 because it had been written by a
judge who had not been part of the Coram that heard the Appeal. The Court
reasoned that the Applicant had been denied the right to be heard. In
Elizabeth Nalumansi Wamala vs. Joly Kasande Civil Application 29 of 2017,
the Supreme Court recalled and altered its judgment to avoid an injustice
whereby Mrs. Wamala had been decreed as the lawful wife of the late
Wamala but had been denied an interest in his Estate. The Court altered the
judgment to provide that Mrs. Wamala had an interest in her late husband’s
estate.
Returning to the slip rule, In Libyan Arab Uganda Bank vs. Adam SCCA
42/92: Court found that it had inherent jurisdiction to recall its judgment and
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perfect it to give effect to its manifest intention under the slip rule which is
embodied in the provisions of rule 35(1) of the Supreme Court Rules.
The limitation of the ‘slip rule’ is clear; it does not allow a Court to sit in
judgment on its previous decision. In Raninga vs. Manskulal Jivraj (1965)
E.A.700 Court observed that a Court will of course only apply the slip rule
where it is fully satisfied that it is giving effect to the intention of the Court at
a time when judgment was given or in the case of the matter which was
overlooked; where it is satisfied beyond doubt as to the order which it would
have made had the matter been brought to its attention. The slip rule has to be
applied with extreme caution – Bentley vs O Sullivan (1962) A.E.R 54. It
should not be used as an avenue for court to correct its own misunderstanding
of the law, otherwise to do so would open a very wide door to chaos. Per
Arach JSC in Kwizera Eddie vs Attorney General SCCA 1 of 2008. The slip
rule cannot be used to correct errors of substance or attempt to add or detract
from the original order made. See Ahmed Kawooya Kaugu vs. Bangu Aggrey
Fred CACA 3 of 2007. In this case it was held that in order for court to invoke
its powers under rule 36 of the Court of Appeal Rules,
The scope of the rule has been discussed in countless number of cases to
mention a few here; Lakhamshi Brothers vs Raja and sons 1966) EA 313,
Fangmin vs Dr Kaijuka Civil Application 6 of 2009(SC), UDB vs Oil Seeds
Limited Civil Application 15 of 1997(SC), Orient Bank vs. Fredrick Zaabwe,
NPART vs General Parts Limited Civil Application 8 of 2000 and Livingstone
Sewanyana vs. Martin Aliker, Salim Jamal vs Uganda Oxygen Limited, Civil
Application 13 of 1997, among others.
In NPART vs. General Parts Uganda Limited (supra), it was held that the
expression “in the case of a matter which was overlooked” in Raninga’s case
means a matter which the court could have lawfully looked at or acted upon
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when deciding the appeal. It must be a matter which was available, or implicit
in the record of appeal or a matter which is necessarily and clearly
consequential upon the decision of the Court of Appeal. It cannot be a matter
which was not in evidence, or which does not follow from findings of appeal.
“we are satisfied that had the matter of refund of the purchase price had
been brought to our attention, an order would have been made when
judgment was given on appeal. We agree with counsel for the
defendant/applicant that it follows logically from our findings …that the
contract was null and void that an order should be made for repayment of
the purchase price. The respondent cannot have his house back…and at
the same time retain and enjoy the purchase price paid by the applicant”
It is quite clear that at the time of the judgment on appeal in that case, the
court was seized of the circumstances which rendered an order for refund
inevitable, namely undisputed evidence that the purchase price had been paid,
and the holding that the contract under which the payment was made was null
and void. It is also clear that the Court had omitted to make the order for
refund only because it did not advert to the consequences of those
circumstances.
In the NPART case (Supra), the validity of a mortgage was in issue. The
Supreme Court invalidated the mortgage on the ground that it had not been
sealed as required. In an application for correction of the Judgment, counsel
for NPART submitted an original copy of the mortgage to the Court which
bore the seal impression and urged that the finding that the mortgage did not
have a seal was based on a photostat copy which could not show whether the
seal existed or not. The Court rejected the application on a number of reasons.
It held that-
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“the alleged mistake sought to be corrected did not arise from an
accidental slip or omission. It is not in respect of a matter or matters
overlooked by this court or even by counsel at the appeal stage. The
finding and holding complained of were mainly based on a document
which was produced in evidence as Exh9 and which was part of the
record of appeal. One of the deficiencies found on it, was that it was not
sealed with the common seal of General parts. That finding, so far as it
relates to Pexh9 remains correct. Pexh9 does not bear the impression of
the said seal nor any written indication that it was sealed. There is
therefore no error to be corrected in that regard……Needless to say that
that the remedy cannot be found in this court applying the slip rule to
correct a mistake that may have occurred during the trial… “
In Salim Jamil and other vs. Uganda Oxygen Limited, the Supreme court
ordered for a retrial of the suit in the High court but at the same time ordered
for payment of costs in the High court. On an application under the slip rule,
“the order of this court granting costs in the lower court was therefore an
error arising from an accidental slip and did not give effect to the
intention of the Court. The proper order should have been that the costs of
the suit in the lower court abide the outcome of the rehearing”
Review
A Court can sit in its own judgment on review. Review is provided for under
S.82 of the CPA. It provides as follows
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b) By a decree or order from which no appeal is allowed by this Act
may apply for a review of the judgment to the Court which passed
the decree or order and the Court may make such order thereon as it
thinks fit.”
The powers of review are limited only to the High Court, Magistrate’s Grade
I or Chief Magistrate’s Court (those Courts which apply the CPA/R). There is
controversy whether section 82 of the Act can be relied upon in the appellate
courts (Court of Appeal or Supreme Court) to invoke the review jurisdiction.
It was invoked without protest in Iyamulemye vs Attorney General Civil
Appeal 4 of 2013 and this appears supported by the decision in Beatrice
Kobusingye vs Fiona Nyakana and Another Civil Appeal 5 of 2004(SC) later
confirmed in the case of Katayira Francis vs Rogers Bosco Bugembe, Civil
Reference 9 of 2017 to the effect that the Civil Procedure Act applies in
appropriate cases to the Supreme Court and to the Court of Appeal.
The application of the remedy of review is provided for under O.46(1) of the
CPR – Any person considering himself or herself aggrieved-
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Reviews are open, brought at any time as long as the Applicant is not guilty
of any dilatory conduct. It may not be Court’s fault; it may be new evidence
so important but was not available at the time of hearing the case.
The process of review must not be used by Courts of law to open doors to all
and sundry to challenge the correctness of the decision made by courts on the
basis of arguments thought of long after the decision was delivered. A judge
on final judgment in a case becomes functus officio and it becomes highly
improper and irregular for the same judge to sit on appeal involving his
judgment by reconsidering the evidence on record, re-evaluating it and
coming to different conclusions. Shah vs Dhavanchi(1981)KLR and Appollo
Wasswa Basudde and others vs . Nsabwa Ham Civil Appeal 288 of
2016(CA)
In Yusuf vs. Nochlaki (1971) E.A. 104; the respondent defaulted in the
payment of two instalments of the judgment debt, as a result of which the
order attaching his salary was issued. He applied for a review of the order on
the ground that it was harsh and unjust. The application was granted by the
Chief Magistrate and the applicant appealed and submitted that the
respondent was not a person aggrieved by the order. The appellant submitted
that the respondent was not an aggrieved party as he had consented to the
order for payment by instalments and the application did not establish any of
the grounds provided in the then O.42 r.1(1). The Court found that a ‘person
aggrieved’ means one who has suffered a legal grievance and Court found
that the respondent was an aggrieved person and therefore entitled for a
review because the respondent had consented to the order for instalments
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payable by him but not to the attachment for his salary. The application was
based on the ground of sufficient reason and Court observed that it is obvious
that civil procedure rules contemplate a procedure by way of review by the
Court which has already given judgment as being different from that by way
of appeal to the Court of Appeal. That the three cases in which review is
permitted are those of new material overlooked by excusable misfortune,
mistake or error apparent on the face of the record or any other sufficient
reason and the expression sufficient reason would naturally be read as
meaning sufficiency analogous to the two or any specified, i.e. excusable,
failure to bring to the notice of Court new and important matters or error on
the face of the record. The Court found that the respondent had not any
sufficient reason and there was no ground for review.
The petitioner applied for review under SS.83, 10, O.42, r.1, 2. The petitioner
played that the Court assess his stake in the company based on evidence
already on record and that which he may produce. The application for review
was opposed on the ground that the Applicant was not an aggrieved party.
Court found that the expression “any person aggrieved” within the meaning
of S.83 and O.42 r.1 means a person who has suffered a legal grievance.
Application for review must be made to the same Judge who made the
decision under review. In Ngarambe David vs Kakuze Betarice CACA 40 of
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2011, the court considered the meaning of section 82 of the CPA and Order
46 of the CPR specifically rules 2 and 4 and held that the correct
interpretation of those rules is that an application for review of a judgment or
decree of a court is only made to the same judge who heard the matter in the
first instance if the ground of review application is based on any other ground
apart from discovery of a new matter or evidence, a clerical mistake and an
error apparent on the face of the record.
However, the words “same judge” in order 46 rules 2 &4 does not mean a
Judge or Magistrate in their individual capacity but by virtue of the
jurisdiction or level of court that they preside over. In Attorney General and
Another vs. James Mark Kamoga and Another SCCA 8 of 2004, it was held
that rule 6 of Order 50 does not create a subordinate court to the High court.
It rather underscores the special status of the registrar as an official of the
High court to whom some limited functions of that court are delegated.
Accordingly, it was held that a Registrar of the High court has no review
powers. He cannot review his decision because the review jurisdiction is not
one of the powers delegated to him under order 50 or under Practice
Direction 1 of 2002.
It is not correct that only a party to a suit can apply for review of a Judgment.
O46 rule 1 provides that any person considering himself aggrieved may apply
for review. Adonia Mutekanga (1970) EA 429 interpreted that such a person
can be a third party who was not part of the suit but who has an interest in the
subject matter of the suit. However, a third party applying for review must
demonstrate that he or she has suffered a legal grievance. See Mohamed
Alibhai vs. Bukenya SCCA 56 of 1996 and Hussein vs Kakiiza and another
(1995-98)2 EA 135.
“Error or mistake apparent on the face of the record” was explained in the
case of Kanyabwera vs. Tumwebaze (2005) EA 87 thus-
“In order that error may be a ground for review, it must be one apparent on
the face of the record. ie an evident error which does not require any
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extraneous matter to show its incorrectness. It must be an error so manifest
ad clear that no Court would permit such an error to remain on record. The
error may be one of fact, but it is not limited to matters of fact and include
error of law”
“This court holds that on the facts before it, the applicant having had the
option of either pursuing an appeal or a review of the High court order of
18.09.2018, he chose to pursue a review. Once he opted to pursue a
review, then he by choice, he gave up the right to pursue an appeal”
Dr Rubinga vs. Yakobo Kato Civil Appeal 35 of 1992 (SC) was case where a
party had the option of either pursuing an appeal by applying for leave to
appeal or to pursue a revision of the decision made by the High court. The
Party chose to pursue a revision. Later the same party attempted to pursue an
appeal. Wambuzi CJ held-
“I also agree that in this case the appellant had a right of appeal but quite
clearly preferred revision proceedings from which he did not appeal. In these
circumstances, it would be very unlikely that a court would extend time to
institute an appeal the right to which the party had by conduct abandoned”
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“it follows that by taking the revision proceedings on 6 th January 1989, the
applicant had to state that no appeal had been preferred, even though one
was allowed. It is clear therefore that revision proceedings had been
preferred to an appeal. It further follows that an unsuccessful applicant for
revision cannot then allege that the period of limitation for instituting an
appeal is still running”
Compare the views expressed in the above Ugandan cases with the Kenyan
case of Kenya Oil Company Limited vs. Mohammed and Another 2003)2 EA
5243, where it was held that an appellant’s right of appeal is not defeated by
the pursuit of the review application to the end.
S.83 of the CPA. The High Court may call for the record of any case which
has been determined under this Act by any Magistrate Court and if that Court
appears to have-
The High Court may revise the said case and makes such order therein as it
thinks fit provided that no such power of revision shall be exercised.
ii)Where from the lapse of time or other cause the exercise of such power
would involve serious hardship to any person.
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In Eriazali Bameka vs.Dodovico Nviri [1973]1 ULR 134: The file in this case
was brought for revision upon a complaint made by the Plaintiff to the Chief
Justice concerning the manner in which the trial Magistrate is alleged to have
handled the litigation. Court found that powers of revision are provided under
S.84 of CPA, the Court found that the High Court may call for the record as
any cause determined under CPA and if such Court appears to have exercised
the jurisdiction not vested with it in law or fail to exercise a jurisdiction so
vested or acted in the exercise of its jurisdiction illegally or with material
irregularity or injustice. The High Court may revise the said case and may
make such order therein as it thinks fit provided both parties shall be given an
opportunity to be heard. Court observed that the mere fact that the Court has
reached a wrong decision even on a point of law is not sufficient to constitute
an illegality or irregularity or injustice that an erroneous decision in itself is
not a ground for revision. The difference being, a Judge omitting to do
something which a statute says shall be done and a Judge doing something
which a statute says shall not be done. The former being an irregularity and
the latter being an illegality. Irregularity means omitting a procedural error
which is lesser than an illegality. Before Court can interfere, where an
irregularity is alleged it must be shown to be material which is an irregularity
that prejudice the merits of the case.
This was quoted with approval in Bameka’s case. In Matemba vs. Yamulinga
(1968) EA 463, it was held that the section applies to jurisdiction alone, the
irregular exercise or non-exercise of it or the illegal assumption of it. The
section is not directed against conclusions of law or fact in which the question
of jurisdiction is not involved. It is settled that where a court has jurisdiction
to determine a question and it determines that question, it cannot be said that
it has acted illegally or with material irregularity because it has come to an
erroneous decision on a question of fact or even law.
“The Registrar, his Deputy and or Assistants are officers of the High
court. They are not governed by the Magistrates’ Court Act when they
sit as a court. Under order 50 rule 4 of the Civil Procedure Rules, a
Registrar presides over a civil court when dealing with matters under
Order 50 rules 1,2 &3 of the Civil Procedure Rules. Under the
Advocates (Remuneration and Taxation of costs) Rules under which the
proceedings, the subject matter of this appeal took place, the Registrar
or taxing officer was not a magistrate’s court. He proceeded to deal
with the bill of costs as an officer of the High court to which the bill of
costs had been presented. We agree that the learned judge erred in law
when he applied section 82 of the Civil Procedure Act which in the
circumstances is inapplicable”.
END
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