Taremwa—Civil Procedure I Notes

THE LAW ON PLEADINGS

I. COUNSEL FOR THE PLAINTIFF

A. INTRODUCTION

 Pleadings are defined to mean and include a statement of claim, statement of

defence and any replies thereto. They connote the documents filed by a
litigant to advance their claim or defence in a matter before court. Pleadings,
therefore, contain the facts upon which a claim or defence or any reply is
founded. They also contain the facts upon which relief is sought by the
litigant or the facts upon which objections are raised against the relief
sought.

 Pleadings are not evidence and the averments therein are subject to proof by
the respective parties making the allegations.
 Section 2(p) of the CPA defines a pleading to include “any petition or
summons, and also includes the statements in writing of the claim or
demand of any plaintiff, and of the defence of any defendant to them, and
the reply of the plaintiff to any defence or counterclaim of a defendant.”

MAIMUNA AMIN v METROPOLITAN PROPERTIES LTD (Distinction

between pleadings and affidavits)

RELIABLE TRUSTEES LTD

 The law requires pleadings to be exchanged between the parties so as to

afford both parties an opportunity to have notice of the claim or defence. This
is intended to accord a fair hearing to the litigants.

PETER BAKALUBA MUKASA v BETTY NAMBOOZE

SUPREME COURT CIVIL APPEAL NO. 4 OF 2009

HOLDING
 Taremwa—Civil Procedure I Notes

 Bart Katureebe JSC: “The value of pleadings cannot be understated. I fully

agree with what Oder, JSC, (RIP) stated in the INTERFREIGHT
FORWARDERS CASE at page 125. He stated:-

‘The system of pleading is necessary in litigation. It operates to define and

deliver it with clarity and precision the real matters in controversy between the
parties upon which they can prepare and present their respective cases and
upon which, the court will be called upon to adjudicate between them. It thus
serves the double purposes of informing each party what is the case of the
opposite party which will govern the interlocutory proceedings before the trial
and which the court will determine at the trial…………. Thus, issues are
formed on the case of the parties so disclosed in the pleadings and evidence is
directed at the trial to the proof of the case so set and covered by the issues
framed therein. A party is expected and is bound to prove the case as alleged
by him and as covered in the issues framed. He will not be allowed to succeed
on a case not set up by him and be allowed at the trial to change his case or set
up a case inconsistent with which he alleged in the pleadings except by way of
amendment of the pleadings.’ (Emphasis added).”

 It is therefore a requirement that pleadings should contain all the pertinent

facts upon which a party relies for their claim or defence. The Rule therefore
restricts parties to what is pleaded in their pleadings to the extent that unless
allowed to amend, such parties are barred from changing or departing from
their claim.

MUTEMBULI YUSUF v MUSAMBA MOSES

REMY KASULE v MAKERERE UNIVERSITY

MOTOR CARE (U) LTD v ATTORNEY GENERAL

HIGH COURT CIVIL SUIT NO. 638 OF 2005

FACTS
 Taremwa—Civil Procedure I Notes

The plaintiff’s claim against the defendant was for the recovery of a debt
amounting to Shs.65, 856,467.99= being alleged balance of the outstanding
principal sum.

HOLDING

Bamwine J.: “It is trite that the object of pleadings is to bring the parties to a
clear issue and delimit the same so that both parties know beforehand the real
issue for determination at the trial.”

It was held that a cause of action is such an important aspect of our law that 0.6 r. 1
(a) requires all pleadings, generally, to contain a brief statement of the material
facts on which the party pleading relies for a claim or defence. Under 0.7 r. 1 (e),
the plaint must contain the facts constituting the cause of action and when it arose.
The consequences of non-compliance are grave. They are set out in 0.7 r. 11.

It was further held that it is settled law that the question whether or not a plaint
discloses a cause of action must be determined upon perusal of the plaint alone,
together with anything attached as to form part of it.

Bamwine J.: “But while interpreting rule 19 (formerly 18) of Order 6 our Courts
have over the years held, inter alia, that:

1. An amendment ought to be allowed if thereby the real substantial question

can be realized between the parties and a multiplicity of proceedings avoided. This
rule, I must say, has no time limit, subject to only one condition that the
application to amend is brought anytime during the course of the proceedings.

2. Amendment sought before hearing should be freely allowed, if they can be

without injustice to the opposite side.

3. Applications for leave to amend the plaint should be refused so far as the
amendment would introduce a new cause of action.

4. Leave to amend will be refused where a plaintiff seeks to add a new cause of
action, which is inconsistent with his pleadings and his evidence.

5. An oral application to amend during the trial may be allowed.

 Taremwa—Civil Procedure I Notes

6. Finally, and most importantly, an amendment may be allowed at a very late

stage, where is it is necessitated solely by a drafting error and there is no element
of surprise.”

B. PARTIES BOUND BY THEIR PLEADINGS

Order 6 Rule 7 provides that parties are bound by their pleadings and cannot be
allowed to depart therefrom without amendment neither can they be allowed to
adduce evidence inconsistent with their pleadings.

INTERFREIGHT FORWARDERS (U) LTD v EAST AFRICAN

DEVELOPMENT BANK

[1994-1995] HCB 54

FACTS

The case concerned a claim for damages for the price of a new motor car that had
been damaged in a road accident while being transported from Mombasa to
Kampala. At the trial court, judgment had been given for the respondent hence this
appeal.

HOLDING

 The Supreme Court held that the system of pleadings is necessary in litigation.
It operates to define and deliver with clarity and precision the real matters in
controversy between the parties upon which they can prepare and present their
respective cases and upon which the court will be called upon to adjudicate
between them.

 A party is expected and is bound to prove the case as alleged by him and as
covered in the issues framed. He will not be allowed at the trial to change his
case or set up a case inconsistent with what he alleged in his pleadings except
by way of amendment of pleadings.
 Taremwa—Civil Procedure I Notes

The Rule that parties are bound by their pleadings is intended to avoid surprise at
the trial and parties deviating from their initial claims outside what was pleaded
and what was defended.

MBAYO JACOB ROBERT v ELECTORAL COMMISSION AND

ANOTHER

ELECTION PETITION APPEAL NO. 07/06

HOLDING

MUTEMBULI YUSUF v MUSAMBA MOSES

 Taremwa—Civil Procedure I Notes

C. MATERIAL PARTICULAR IN PLEADINGS

Order 6 Rule 1 requires that pleadings should contain all the material facts upon
which a party seeks relief or contests the claim.

DR. HENRY KAMANYIRO KAKEMBO v ROKO CONSTRUCTION LTD

CIVIL APPEAL NO. 05 OF 2005

FACTS

The appellant is the registered proprietor of land comprised in mailo Register

Kyagwe Block 111 Plot 496 measuring approximately 60.371 Hectares.

The appellant has been living outside this country for a very long time in fact as
early as 1984. He lives in Maryland, United States of America, where he works as
a physician.

On 24th March 1984 the appellant appointed his brother one Mudiima Kakembo to
be his Attorney. The power of Attorney is a general one.

Sometime in 1999 with the consent of the appellant’s Attorney, the respondent was
allowed to excavate murram from the appellant’s land.

It appears that the Attorney was in fact selling the said murram to the respondent,
but the respondent was the one physically excavating the murram from the land.

As a consequence of the excavation of murram a pit was created on the said land
measuring approximately 0.40 hectares or just about one acre.

The appellant was unaware of the respondent’s activities on the land until
sometime in 1999. When he returned to Uganda he confronted the respondent
about their activities and demanded that the respondent restores the land. The
 Taremwa—Civil Procedure I Notes

respondent agreed to do so and in fact made effort to fill up the pit created by the
excavation of murram.

The appellant was dissatisfied with the manner in which the pit had been refilled
and filed a suit at the High Court of Uganda on 21st November 2000.

In that suit the appellant claimed for Shs. 45,000,000 “as compensation, general
damages together with interest at 23% per annum from the date of Judgment until
payment in full.”

HOLDING

 The fundamental rule of the common law legal system of pleading is that
“every pleading must contain and contain only, a statement in summary form of
the material facts on which the party pleading relies for his claim or defence as
the case may be, but not the evidence by which those facts are to be proved” see
Order 6 Rule 1 of the Civil Procedure Rules.

 It is therefore generally unnecessary to state in the pleadings the principle of

common law or the contents of a statute. The law need not be pleaded to show
that a plaintiff is entitled to a particular claim.

 However, it is good practice to specify under which principle of common law or

statute an action is based. For example whether the action is tort or contract and
if it is based on tort what kind of tort, whether trespass or negligence, or
defamation, or any other.

 In some cases causes of action need to be specifically pleaded for example

where a claim is based on a contract or negligence. In such cases particulars of
the contract or negligence are required to be pleaded.

 The law of limitation for example applies differently to different causes of

action in that regard, it is important to be specific in the pleadings as to the
cause of action. Fraud must be specifically pleaded for example, together with
facts, and circumstances in support of the allegation.
 Taremwa—Civil Procedure I Notes

 It is trite that a party to a suit would not be permitted to adduce evidenced to

prove facts which have not been pleaded.

The Remedies available to parties flow from their pleadings whether the action is
breach of contract, negligence, conversion, detinue, defamation or any other cause
of action.

MUTONGOLE v NYTIL

TORORO CEMENT CO. LTD v FROKINA INTERNATIONAL

CIVIL APPEAL NO. 2 OF 2001

FACTS

The appellant and the respondent were, respectively defendant and plaintiff, in the
High Court in a suit from which these proceedings arise. In paragraphs 4 and 5 of
the plaint in that suit, the plaintiff averred as follows:

4. On 18/8/99 the defendant's truck and its trailer rammed into the plaintiffs
premises on plot M587 Nakivubo View and extensively destroyed its doors and
walls".

5. The accident was caused by negligence of the defendant's driver for which the
defendant is vicariously liable"

In its written statement of defence, the defendant responded in paragraph three that
the contents of paragraphs 3, 4 and 5 of the plaint are denied in total and the
plaintiff shall be put to strict proof thereof.

When the suit came up for hearing before Mugamba, Ag. J., Mr. Lumweno,
counsel for the defendant, raised a preliminary point of objection to the plaint,
contending that the plaint was defective and offended Rule 11(a) of Order 7 of the
CP. Rules because it did not disclose a cause of action. Mr. Zeija, for the plaintiff,
resisted the objection because, firstly the written statement of defence had not
suggested, nor did the list of authorities indicate, that a preliminary point of
 Taremwa—Civil Procedure I Notes

objection would be raised. Secondly, learned counsel contended that the averments
in paragraph 4 of the plaint sufficiently disclosed a cause of action.

HOLDING

 It was held that whether a plaint does or does not disclose a cause of action is a
matter of law which can be raised by the defendant as a preliminary point at the
commencement of the hearing of the action even if the point had not been
pleaded in the written statement of defence. Obviously it is proper and good
practice to aver in the opposite party's pleadings that the pleadings by the other
side are defective and that at the trial a preliminary point of objection would be
raised. But failure to so plead does not bar a party from raising the point. There
is, of course, advantage in raising a likely preliminary point in the pleadings.
This puts the opposite party on notice so that that party in minded to put its
pleadings in order before court hearing. In that way Court's time may be saved
if parties can sort out preliminary matters in advance.

 It was held that it is the common practice in cases of negligence for a party, or
his advocate, who intends to rely on negligence to plead particulars of
negligence either within a paragraph of the pleadings or in more than one
paragraph.

 It was held that the essence of pleadings is to enable parties to define issues in
dispute. In this case the issue in dispute is negligence. Issues on negligence can
be defined by giving particulars of the alleged negligence.

 It was further held that the alternative is for the appellant to ask for further and
better particulars under 0.6 Rule 3. Or indeed, the plaintiff could have sought
leave to amend the plaint. This course would have avoided the necessity for
these proceedings.

 Tsekooko JSC: “The plaintiff relies on Article 126 of the Constitution for the
view that the plaint is not defective. I do not think that Article 126 of the
Constitution was meant to encourage sloppy drafting of pleadings. Properly
 Taremwa—Civil Procedure I Notes

drafted pleadings define issues in contest. That is why we have rules. What can
be argued legitimately is that because of that Article and by authority of
decided cases, a plaint ought not to be rejected for failure to disclose a cause of
action unless even when it is amended, within the limits of the law, a cause of
action is not disclosed. But the party whose pleadings are objected to must be
graceful enough to recognize the defect in its pleading and seek Court's leave, if
it is possible, to rectify the relevant defect instead of being adamant as the
plaintiff has been in these proceedings.”

NB: Also read the Mbarara Coffee case on what you need to plead for breach of
contract

D. SIGNING OF PLEADINGS

Pleadings are required to be signed either by counsel or by the litigant if self-

represented.

Order 6 Rule 26

MUGABI v ATTORNEY GENERAL

The advocate signing the pleadings must be in possession of a valid practicing

certificate authorizing them to practice law as such.

Section 12 and 14(A) of the Advocates Act (As Amended)

SUUBI KINYAMATAMA v SSENTONGO

ELECTION APPEAL NO. 92 OF 2016

FACTS

In this case, the petition was filed with an affidavit in support sworn by the
petitioner but the same was not duly commissioned since one of the advocates had
not renewed his practicing certificate. This was verified by the letter of verification
from the Chief Registrar.
 Taremwa—Civil Procedure I Notes

HOLDING

 It was held that the essence of Section 14A of the Advocates (Amendment) Act
2002 is to protect innocent litigants unscrupulous advocates. It was also noted
that Section 14A (1) (b) (2) makes provision for a victim of such an advocate to
be given time to make good any defects arising out of such an event. This
means that the matter should not proceed with defective pleadings but time
would be given to the innocent litigant to rectify the error, which was not done
in the instant case. The petitioner, having realized that the affidavits had been
commissioner by an advocate who had no practicing certificate should have
proceeded under the above section to make good the defect.

PETER NYOMBI AND ATTORNEY GENERAL v UGANDA LAW

SOCIETY

HOLDING

It was held that there is no law that forbids competing for provision of legal
services because competition is not the same as touting. Even the PPDA Act
forbids touting. What the law requires was rightly put by the respondent as
follows:

“I want legal services, can you prove to me as the potential client your capability
and capacity so that I can assess whether you are competent and affordable in
terms of value for money and costs. The client then looks at your submission in
compulsion to others and decides to retain you by giving you instructions or not to
retain you.”
 Taremwa—Civil Procedure I Notes

E. PLAINT: GENERAL REQUISITES

Order 6 Rule 1 provides for the general requirements of a plaint. The pleadings
must be drafted in the English language.

 Section 88(1) of the Civil Procedure Act states that, “The language of all
courts shall be English.”
 Section 88(2) of the Civil Procedure Act states that, “Evidence in all
courts shall be recorded in English.”
 Section 88(3) of the Civil Procedure Act states that, “Written applications
to the courts shall be in English.”

Section 88 of the Civil Procedure Act (hereinafter the CPA) provides that the
language of the Court shall be in English. It is a requirement, therefore, that all
pleadings and other documents to be relied on in civil proceedings must be set out
in the English language. It also means that evidence must be led and provided in
the English language. This applies to oral evidence and evidence by way of witness
statements.

However, where a document to be relied on in evidence is in a language other than

the English language, a translation of that document must be filed together with
that document. The translation is done by any person of sound mind who is fluent
in both the English language and source language. It is therefore important that you
attach a translation, otherwise the Court may be reluctant to admit the document if
no such translation is attached.

RAMA MAKUZA v NAKAMYA AND 2 OTHERS

HIGH COURT MISCELLANEOUS APPLICATION NO. 140 OF 2013

FACTS

Counsel for the applicant argued that the written statement of defence had an
attachment “F” that was written in a language that is not the language of the Court.
This contradicted Section 88(1) of the Civil Procedure Act which states that the
language of the court shall be English. He further argued that the provision was
 Taremwa—Civil Procedure I Notes

couched in mandatory terms and failure to comply with it is illegal and was fatal to
the defence.

HOLDING

Hon. Justice Joseph Murangira: “Counsel for the applicant in my view invoked
Section 88 of the Civil Procedure Act to support his argument out of context…It is
my interpretation of the law that when a document written in the local language
and attached to thee pleading without being interpreted into English language; then
at the time of adducing evidence, the Court shall direct that such documents be
translated into English language. Then the original document together with its
translated copy shall be admitted in evidence. Therefore, I make a finding that
attaching the document written in local language cannot make the respondents’
written statement of defence and counterclaim illegal…”

ASSUMPTA SEBUNYA v JAMES KYOMUKAMA

MISCELLANEOUS CAUSE NO. 55 OF 2012

FACTS

In this matter, an annexure “A” to the plaint was in Luganda language.

HOLDING

 The learned judge, Hon. Mr. Justice Joseph Murangira stated that “With
regard to the fact that annexture “A” to the plaint was in Luganda language
which offends Section 88 of the Civil Procedure Act, it is my finding that
annexture “A” was only an attachment and was yet to be admitted as evidence
before the trial court. Section 88 of the CPA is very clear. That the documents
which is not translated into the language of the court which is English cannot
be admitted in evidence. Such document in Luganda language other than
English is only rejected by Court at the tendering of such documents in
evidence through a witness during the trial; but not at a stage of a preliminary
objection. The respondent would have, before tendering annexture “A” in
 Taremwa—Civil Procedure I Notes

evidence translated the same document into English language. And failure by
the respondent to attach the translated version of the said sale agreement in
Luganda into English was not fatal to the respondent’s suit.”

 The plaint must contain material facts on the basis of which relief is sought.
MOTOR CARE (U) LTD v ATTORNEY GENERAL

HIGH COURT CIVIL SUIT NO. 638 OF 2005

FACTS

The plaintiff’s claim against the defendant was for the recovery of a debt
amounting to Shs.65, 856,467.99= being alleged balance of the outstanding
principal sum.

HOLDING

 Bamwine J.: “It is trite that the object of pleadings is to bring the parties to a
clear issue and delimit the same so that both parties know beforehand the real
issue for determination at the trial.”

 It was held that a cause of action is such an important aspect of our law that 0.6
r. 1 (a) requires all pleadings, generally, to contain a brief statement of the
material facts on which the party pleading relies for a claim or defence. Under
0.7 r. 1 (e), the plaint must contain the facts constituting the cause of action and
when it arose. The consequences of non-compliance are grave. They are set out
in 0.7 r. 11.

 It was further held that it is settled law that the question whether or not a plaint
discloses a cause of action must be determined upon perusal of the plaint alone,
together with anything attached as to form part of it.

 Bamwine J.: “But while interpreting rule 19 (formerly 18) of Order 6 our
Courts have over the years held, inter alia, that:
 Taremwa—Civil Procedure I Notes

1. An amendment ought to be allowed if thereby the real substantial question

can be realized between the parties and a multiplicity of proceedings avoided. This
rule, I must say, has no time limit, subject to only one condition that the
application to amend is brought anytime during the course of the proceedings.

2. Amendment sought before hearing should be freely allowed, if they can be

without injustice to the opposite side.

3. Applications for leave to amend the plaint should be refused so far as the
amendment would introduce a new cause of action.

4. Leave to amend will be refused where a plaintiff seeks to add a new cause of
action, which is inconsistent with his pleadings and his evidence.

5. An oral application to amend during the trial may be allowed.

6. Finally, and most importantly, an amendment may be allowed at a very late

stage, where is it is necessitated solely by a drafting error and there is no element
of surprise.”
 Taremwa—Civil Procedure I Notes

F. PARTICULARS IN PLAINT

The plaint must contain the particulars of the court which must be the court of both
geographical, pecuniary and subject matter jurisdiction.

The plaint must also contain facts that confer jurisdiction upon the court.

The plaint must plead and particularize the facts that are required by law to be
specifically pleaded and particulars given. Order 6 Rule 3 makes it a mandatory
requirement to plead particulars of a cause of action founded on negligence, breach
of trust, fraud and related causes.

TORORO CEMENT CO. LTD v FROKINA INTERNATIONAL

CIVIL APPEAL NO. 2 OF 2001

FACTS

The appellant and the respondent were, respectively defendant and plaintiff, in the
High Court in a suit from which these proceedings arise. In paragraphs 4 and 5 of
the plaint in that suit, the plaintiff averred as follows:

4. On 18/8/99 the defendant's truck and its trailer rammed into the plaintiffs
premises on plot M587 Nakivubo View and extensively destroyed its doors and
walls".

5. The accident was caused by negligence of the defendant's driver for which the
defendant is vicariously liable"

In its written statement of defence, the defendant responded in paragraph three that
the contents of paragraphs 3, 4 and 5 of the plaint are denied in total and the
plaintiff shall be put to strict proof thereof.

When the suit came up for hearing before Mugamba, Ag. J., Mr. Lumweno,
counsel for the defendant, raised a preliminary point of objection to the plaint,
contending that the plaint was defective and offended Rule 11(a) of Order 7 of the
CP. Rules because it did not disclose a cause of action. Mr. Zeija, for the plaintiff,
resisted the objection because, firstly the written statement of defence had not
suggested, nor did the list of authorities indicate, that a preliminary point of
 Taremwa—Civil Procedure I Notes

objection would be raised. Secondly, learned counsel contended that the averments
in paragraph 4 of the plaint sufficiently disclosed a cause of action.

HOLDING

 It was held that whether a plaint does or does not disclose a cause of action is a
matter of law which can be raised by the defendant as a preliminary point at the
commencement of the hearing of the action even if the point had not been
pleaded in the written statement of defence. Obviously it is proper and good
practice to aver in the opposite party's pleadings that the pleadings by the other
side are defective and that at the trial a preliminary point of objection would be
raised. But failure to so plead does not bar a party from raising the point. There
is, of course, advantage in raising a likely preliminary point in the pleadings.
This puts the opposite party on notice so that that party in minded to put its
pleadings in order before court hearing. In that way Court's time may be saved
if parties can sort out preliminary matters in advance.

 It was held that it is the common practice in cases of negligence for a party, or
his advocate, who intends to rely on negligence to plead particulars of
negligence either within a paragraph of the pleadings or in more than one
paragraph.

 It was held that the essence of pleadings is to enable parties to define issues in
dispute. In this case the issue in dispute is negligence. Issues on negligence can
be defined by giving particulars of the alleged negligence.

 It was further held that the alternative is for the appellant to ask for further and
better particulars under 0.6 Rule 3. Or indeed, the plaintiff could have sought
leave to amend the plaint. This course would have avoided the necessity for
these proceedings.

 Tsekooko JSC: “The plaintiff relies on Article 126 of the Constitution for the
view that the plaint is not defective. I do not think that Article 126 of the
Constitution was meant to encourage sloppy drafting of pleadings. Properly
drafted pleadings define issues in contest. That is why we have rules. What can
be argued legitimately is that because of that Article and by authority of
 Taremwa—Civil Procedure I Notes

decided cases, a plaint ought not to be rejected for failure to disclose a cause of
action unless even when it is amended, within the limits of the law, a cause of
action is not disclosed. But the party whose pleadings are objected to must be
graceful enough to recognize the defect in its pleading and seek Court's leave, if
it is possible, to rectify the relevant defect instead of being adamant as the
plaintiff has been in these proceedings.”

OKELLO OKELLO v UNEB

BELEX TOURS AND TRAVEL LTD v CRANE BANK AND M/S FANG
MIN

CIVIL APPEAL NO. 71 OF 2009

HOLDING

 It was held that fraud and/or an illegality can be discovered by court itself in the
process of reappraising evidence. Even then the court cannot ignore the
illegality. The Supreme Court rejected the argument based on the authority of
Stephen Lubega vs. Barclays Bank Civil Appeal No. 2 of 1992 that “fraud
must not only be pleaded, it must be particularized”.

PETER BAKALUBA MUKASA v BETTY NAMBOOZE

SUPREME COURT CIVIL APPEAL NO. 4 OF 2009

HOLDING

 Bart Katureebe JSC: “The value of pleadings cannot be understated. I fully

agree with what Oder, JSC, (RIP) stated in the INTERFREIGHT
FORWARDERS CASE at page 125. He stated:-

‘The system of pleading is necessary in litigation. It operates to define and

deliver it with clarity and precision the real matters in controversy between the
parties upon which they can prepare and present their respective cases and
upon which, the court will be called upon to adjudicate between them. It thus
 Taremwa—Civil Procedure I Notes

serves the double purposes of informing each party what is the case of the
opposite party which will govern the interlocutory proceedings before the trial
and which the court will determine at the trial…………. Thus, issues are
formed on the case of the parties so disclosed in the pleadings and evidence is
directed at the trial to the proof of the case so set and covered by the issues
framed therein. A party is expected and is bound to prove the case as alleged
by him and as covered in the issues framed. He will not be allowed to succeed
on a case not set up by him and be allowed at the trial to change his case or set
up a case inconsistent with which he alleged in the pleadings except by way of
amendment of the pleadings.’ (Emphasis added).”

G. STRIKING OUT OF THE PLAINT

 The failure to plead particulars where they are required may lead to the
striking out of the plaint on account of want of disclosure of a cause of
action.

KEBIRUNGI JUSTINE v MS ROAD TRAINERS LTD AND OTHERS

MISCELLANEOUS APPLICATION NO. 285 OF 2003

FACTS

The plaintiff filed an application under Order 6 rule 18 for an order to amend a
plaint. When the application was set for hearing Mr Kihika who appeared for the
Respondent assisted by Mr Ssekatawa raised a preliminary objection contending
among other things that the plaint was bad in law for the reason that it did not give
particulars of negligence as required by law. For that reason the Learned Counsel
contended that the plaint did not disclose a cause of action and as such, it could not
be amended. The Learned Counsel relied on the case of Mukasa Vs Singh &
Others [1969] EA 442. The Learned Counsel submitted further that even the
intended amendment could not cure the defect as it did not also have particulars of
negligence. Instead it sought to introduce another cause of action based no res ipsa
loquitor.

HOLDING
 Taremwa—Civil Procedure I Notes

 The learned judge stated that: “What amounts to particulars of negligence was
clearly stated in the case of Mukasa Vs. Singh and others [1969] EA
422 where Sheridan, Ag. C.J (as he then was) held that particulars of negligence
must be pleaded and that even in a suit where the doctrine of res ipsa loquitor is
going to be invoked it is still necessary to plead particulars of negligence.”

 It was held that giving particulars of negligence is not a mere technicality but a
substantial merit as it is from it that the Defendant is able to know the
allegations to meet and the type of defence to prepare. The sum total of the
above is that the Court will find it easy to frame issues and determine the suit
without undue delay.

 For the above reason court found that the plaint (both original and the
amendment) did not disclose any cause of action. The same was accordingly
struck out with costs. The Plaintiff can go back to the drawing board if she so
wishes.

H. CAUSE OF ACTION, INCLUDING VICARIOUS LIABILITY AND THE

PRACTICE OF PLEADING A CAUSE OF ACTION

Order VII Rule 1, Rule 11 and Order VI Rule 30

CRANE BANK LTD (IN RECEIVERSHIP) v SUDHIR RUPARELIA

 Taremwa—Civil Procedure I Notes

UGANDA TELECOM LTD v ZTE

SINBA (K) LTD v UBC

MUHWEZI ASTON v IRENE

Order VII Rule 14 (Where your cause of action is derived from a particular
document, that document must be attached.)

FAKRUDIN VALLIBHAI KAPASI AND ANOTHER v KAMPALA

DISTRICT LAND BOARD AND ALLIANCE HOLDINGS LTD

CIVIL SUIT NO. 570 OF 2015

FACTS

In this matter, a preliminary objection was raised in as regards the locus standi of
the plaintiffs who had instituted a suit against the defendants in the High Court
challenging a lease issued on the basis of fraud and illegality. The learned counsel
for the respondents raised an objection on grounds of legal standing before the
court in respect of the fact that the plaintiffs were suing in two different capacities.
They were bringing the suit in their personal capacity in their personal capacity on
an interest formerly registered under another person’s names. Additionally, they
were filing the suit as representatives of the estate of a deceased but did not plead
whether they were suing as beneficiaries or administrators or executors of the
deceased’s estate. The learned counsel for the respondent stated that the plaintiffs
had attached no authority that gave them the power to do so, and that consequently,
this was in contravention of Order VII Rule 4(1) of the CPR which states that a
document upon which a plaintiff sues or claims locus standi to sue must be filed
with the plaint.

HOLDING

It was held that it is emphasized that the unfailing requirement is that locus standi
to institute a suit, by whatever mode prescribed, and must be established at the
time the suit is filed. This is done by expressly pleading facts that give the plaintiff
the legal standing to institute the suit. It should not be leftto the court to guess
where a plaintiff derives the locus standi to file the suit. It must be expressly clear
 Taremwa—Civil Procedure I Notes

on the facts pleaded; particularly those that give rise to the cause of action in the
plaint or counterclaim.

It was held that omission to file with the plaint the documents upon which a
plaintiff sues renders the plaint fatally defective for disclosing no cause of action.

In addition, Order 7 Rule 11 (a) CPR provides that a plaint shall be rejected where
it does not disclose a cause of action. Indeed in the now locus classicus case of
Auto Garage v. Motokov [1971] EA 314, it was held, inter alia, that a plaint
without a cause of action is nothing and cannot be amended as there is nothing to
amend. There is no basis for a party to be in court in the first place.

I. ANNEXTURES TO PLAINTS

 Order 7 Rule 14(1) requires that where the claim is founded on a document in
the possession of the plaintiff or under his control, the document must be
filed together with the plaint and failure to do so may render the plaint
incompetent, for example, where suing on the basis of marriage but without
 Taremwa—Civil Procedure I Notes

the marriage certificate attached. This is only in respect of documents on

which the suit is based.

FAKRUDIN VALLIBHAI KAPASI AND ANOTHER v KAMPALA

DISTRICT LAND BOARD AND ALLIANCE HOLDINGS LTD

CIVIL SUIT NO. 570 OF 2015

FACTS

In this matter, a preliminary objection was raised in as regards the locus standi of
the plaintiffs who had instituted a suit against the defendants in the High Court
challenging a lease issued on the basis of fraud and illegality. The learned counsel
for the respondents raised an objection on grounds of legal standing before the
court in respect of the fact that the plaintiffs were suing in two different capacities.
They were bringing the suit in their personal capacity in their personal capacity on
an interest formerly registered under another person’s names. Additionally, they
were filing the suit as representatives of the estate of a deceased but did not plead
whether they were suing as beneficiaries or administrators or executors of the
deceased’s estate. The learned counsel for the respondent stated that the plaintiffs
had attached no authority that gave them the power to do so, and that consequently,
this was in contravention of Order VII Rule 4(1) of the CPR which states that a
document upon which a plaintiff sues or claims locus standi to sue must be filed
with the plaint.

HOLDING

 It was held that it is emphasized that the unfailing requirement is that locus
standi to institute a suit, by whatever mode prescribed, and must be established
at the time the suit is filed. This is done by expressly pleading facts that give the
plaintiff the legal standing to institute the suit. It should not be leftto the court to
guess where a plaintiff derives the locus standi to file the suit. It must be
expressly clear on the facts pleaded; particularly those that give rise to the cause
of action in the plaint or counterclaim.
 Taremwa—Civil Procedure I Notes

 It was held that omission to file with the plaint the documents upon which a
plaintiff sues renders the plaint fatally defective for disclosing no cause of
action.

 In addition, Order 7 Rule 11 (a) CPR provides that a plaint shall be rejected
where it does not disclose a cause of action. Indeed in the now locus classicus
case of Auto Garage v. Motokov [1971] EA 314, it was held, inter alia, that a
plaint without a cause of action is nothing and cannot be amended as there is
nothing to amend. There is no basis for a party to be in court in the first place.

RAMA MAKUZA v NAKAMYA AND 2 OTHERS

HIGH COURT MISCELLANEOUS APPLICATION NO. 140 OF 2013

FACTS

Counsel for the applicant argued that the written statement of defence had an
attachment “F” that was written in a language that is not the language of the Court.
This contradicted Section 88(1) of the Civil Procedure Act which states that the
language of the court shall be English. He further argued that the provision was
couched in mandatory terms and failure to comply with it is illegal and was fatal to
the defence.

HOLDING

 Hon. Justice Joseph Murangira: “Counsel for the applicant in my view

invoked Section 88 of the Civil Procedure Act to support his argument out of
context…It is my interpretation of the law that when a document written in the
local language and attached to thee pleading without being interpreted into
English language; then at the time of adducing evidence, the Court shall direct
that such documents be translated into English language. Then the original
document together with its translated copy shall be admitted in evidence.
Therefore, I make a finding that attaching the document written in local
language cannot make the respondents’ written statement of defence and
counterclaim illegal…”
 Taremwa—Civil Procedure I Notes

ASSUMPTA SEBUNYA v JAMES KYOMUKAMA

MISCELLANEOUS CAUSE NO. 55 OF 2012

FACTS

In this matter, an annexure “A” to the plaint was in Luganda language.

HOLDING

 The learned judge, Hon. Mr. Justice Joseph Murangira stated that “With
regard to the fact that annexture “A” to the plaint was in Luganda language
which offends Section 88 of the Civil Procedure Act, it is my finding that
annexture “A” was only an attachment and was yet to be admitted as evidence
before the trial court. Section 88 of the CPA is very clear. That the documents
which is not translated into the language of the court which is English cannot
be admitted in evidence. Such document in Luganda language other than
English is only rejected by Court at the tendering of such documents in
evidence through a witness during the trial; but not at a stage of a preliminary
objection. The respondent would have, before tendering annexture “A” in
evidence translated the same document into English language. And failure by
the respondent to attach the translated version of the said sale agreement in
Luganda into English was not fatal to the respondent’s suit.”

SUFFISH INTERNATIONAL FOOD PROCESSORS AND ANOTHER v

EGYPT AIR CORPORATION

SUPREME COURT CIVIL APPEAL NO. 15 OF 2001

 Taremwa—Civil Procedure I Notes

FACTS

On or about March 16 1996, the first appellant entered into a contract with the
respondent to airfreight a consignment of chilled fresh fish from Uganda to
Brussels. On arrival at the destination, the consignment was found to be unfit for
entry into the European Economic Community, was rejected and destroyed. The
second appellant indemnified the first appellant as its insured for the loss in the
sum of USD 48, 100 on an alleged Insurance Cover. The first appellant instituted a
suit against the respondent for the benefit of the second appellant under the
doctrine of subrogation to recover the sum of USD 48,100 which the latter had
paid to the former. The trial judge found that the goods were damaged either
during the process of loading them into the plane or during the flight and blamed
the respondent for causing the damage. Judgment was entered for the second
appellant. The respondent was dissatisfied with the decision of the trial court, and
appealed to the Court of Appeal, which allowed the appeal, overturning the trial
court's judgment. Hence this appeal.

Before making his own conclusions in the lead judgment, with which the other
members of the Court of Appeal agreed, Berko, JA, re-evaluated the evidence in
the case to the effect that the appellants' plaint in the trial court pleaded in
paragraph 6(b) thereof that the first appellant took out a valid insurance policy
cover No. 10/MR/OC/4499 with the insurers (the second appellant) to cover 1000
Kgs. of Fresh Chilled Nile Perch Fillets, inclusive of airfreight transportation, and
handling. A copy of a Marine Certificate of Insurance was attached to the plaint.
However, no such insurance policy/cover was produced in evidence.

HOLDING

 The Supreme Court found that it is not known when the contract of indemnity
was made. The respondent would, therefore, be interested to know whether the
contract of insurance or indemnity was retrospective or at least validly covered
the period from the date the consignment was airfreight to when it arrived at
Brussels.
 Taremwa—Civil Procedure I Notes

 On this basis, it was held that since the appellants had failed to prove it by
producing it in evidence, the learned Justices of Appeal had rightly rejected the
appellants' appeal before them, and dismissed their suit.

JOHN SSEBATAANA v ABANEMAR YOKORAM

HIGH COURT CIVIL SUIT NO. 99/2005

FACTS

When the suit came up for scheduling conference, counsel for the defendants, Mr.
Richard Mwebembezi of Bamwe & Co. Advocates raised two preliminary
objections; namely:-

(1) That the plaint did not state the value of the subject matter. That failure to
disclose the value of the subject, the suit would be in the jurisdiction of the Chief
Magistrate’s Court.

(2) That the plaintiff was suing through Attorney’s that yet there was no power of
attorney annexed to the pleadings. That therefore, the plaint does not disclose a
cause of action against the defendants.

HOLDING

 It was held that the value of the suit property was not stated. That, therefore,
offended Order 7 Rule 1 of the Civil Procedure Rules (CPR). However, the
objection raised did not fit within Order 7 Rule 11 and thus under Order 7 Rule
9(3), the Plaintiff could, by leave of the Court, amend the statements so as to
make the response with the plaint.

 It was held that in the instant suit, the powers of attorney which were to give the
plaintiff the basis to sue the defendants were not annexed to the plaint. Counsel
for the plaintiffs was graceful enough when he recognized that the power of
attorney which was missing would have been the basis to sue the defendants.
Court, therefore, held that the attorneys have no authority to sue the defendants.
The attorneys, further, had no cause of action against the defendants.
Wherefore, the attorneys instituted a suit against the defendants unlawful. Thus,
 Taremwa—Civil Procedure I Notes

the plaint without plaintiffs cannot be sustained in law and that the same could
not be amended.

J. SUMMARY OF EVIDENCE, LIST OF WITNESSES, DOCUMENTS

AND AUTHORITIES

 The plaint must accompanied by summary of evidence, list of witnesses,

documents and authorities.

EASTERN AND SOUTHERN AFRICAN TRADE AND ANOTHER v

HASSAN BASSAJABALABA AND ANOTHER

HCT-00-CC-CS 512 OF 2006

FACTS

The plaintiff’s claim against the defendants jointly and severally was for specific
performance of the terms of the Deed Guarantee dated 10/7/2002 entered into
between the plaintiff and the defendants; general damages for fraud and
misrepresentation; costs and interest.

When the case came up for a scheduling conference on 2/4/2007, Mr. Kavuma –
Kabenge for the defendants raised an objection regarding jurisdiction. He
contended that the parties in their dealings agreed that the Guarantee would be
governed and construed in accordance with the laws of England and that any
dispute would be resolved through arbitration.

He also contended that the amended plaint was not accompanied by a list of
documents, list of witnesses and the summary of the case as the law under 0.6 r. 1
(2) of the Civil Procedure Rules requires. He therefore invited Court to find that it
had no jurisdiction over the matter and that the suit is in any case incompetent.

HOLDING
 Taremwa—Civil Procedure I Notes

 Bamwine J.: “From the pleadings, therefore, the law of England is the
applicable law to the transaction. The issue is whether the Ugandan Courts
have jurisdiction to hear and determine the dispute between the parties.

The Constitution of Uganda (Article 132) read together with the Judicature Act
(S. 14 (2)) grant the High Court original jurisdiction in all matters. The
contract Act (cap. 73, S. 2 (1) thereof) allows for the application of the common
law of England that relates to contracts as modified by the doctrines of equity;
public general statutes in force in England on the 11th August, 1902; and the
Acts of Parliament of the United Kingdom mentioned in the Act.

Under the principles of Common Law of England that relate to contracts, which
principles do apply to our very own situation, I reckon, English Courts are
mandated to determine disputes as long as the person served with summons to
file a defence is within England. I cannot see why, as a general principle, the
same would not apply to our Courts.”

 It was held that in the cited case of Fonville v Kelly, the subject matter of the
suit was a breach of the Stock Purchase Agreement. Clause 12 of the agreement
provided that the contract would be construed in accordance with the law of the
State of Florida, USA and that the venue of the proceedings would be Orange
County, Florida. The jurisdiction of the Kenyan Courts was therefore ousted
with regard to any dispute arising from the agreement. In the instant case, the
Loan Facility Agreement and the Guarantee agreement did not provide that the
venue of the proceedings would be in England. The mere fact that the law
applicable to the transaction was the law of England would not in itself be
ground to shift the venue of the trial to England unless the parties so wish. If the
parties felt that Ugandan lawyers would not serve them to their satisfaction, as
would their English counterparts, they (the parties) would be at liberty to fly in
lawyers of their choice.

 Counsel was of the opinion, that in accordance with the Arbitration and
Conciliation Act of this country, the Court should be compelled to refer the
matter to arbitration, presumably in England. The learned judge stated: “It
 Taremwa—Civil Procedure I Notes

would appear that counsel is basing his argument on Annexture ‘A’ to the
plaint, Article 24, which states that any dispute between the parties to that
agreement should be settled by an Arbitration Tribunal. In my view, this
argument should also fail. Annexture ‘A’ is a loan facility agreement between
the plaintiff and a company, Basajjabalaba Hides and Skins Ltd, a limited
liability company. The same has nothing to do with the defendants herein, who
are being sued on another agreement, a Guarantee Deed, they signed with the
plaintiff, Annexture ‘B’ to the plaint. My careful perusal of the annextures to the
pleadings shows that annexture ‘B’, unlike annexture ‘A’, does not have any
clause in it to do with arbitration. Any arbitration conducted in the matter
would, in my view, be procedural rather than contractual. I would also over-
rule this objection.”

 In as regards the objection that they did not attach the summary of facts and
evidence and the list of documents and witnesses, it was found that none was
missing.
The learned judge held that, “Be that as it may, the plaintiff filed the first plaint
with all the requisite lists. They were served on the defendants. Within the time
allowed by law, the plaintiff amended its plaint, making a very minor alteration
to the original plaint. The rest remained the same. In my view, mindful as I’m,
that one of the intentions of amending 0.6 of the Civil Procedure Rules was to
avoid surprises or ambushes in matters of this nature, the defendants cannot
plead surprise in this case. The case cited to me, Sule Pharmacy Ltd V The
Registered Trustees of the Khoja Shia Itana Shari Jamat (Misc. Application No.
147/1999 arising out of HCCS No. 30/99 – unreported) covered this kind of
situation. Applying the ratio decidendi in that case to the facts herein, and given
that the Constitution of Uganda mandates Courts to administer justice without
un due regard to technicalities, I’m inclined to over-look the omission, if any, in
the greater interests of justice and in accordance with Article 126 (2) (e) of the
Constitution.”

RAMA MAKUZA v NAKAMYA AND 2 OTHERS

 Taremwa—Civil Procedure I Notes

HIGH COURT MISCELLANEOUS APPLICATION NO. 140 OF 2013

HOLDING

 Court found that the written statement of defence did not have the summary of
facts, evidence and list of witnesses and documents attached.

 The learned judge stated: “I agree that Courts have inherent powers to dismiss
a written statement of defence or strike it out, but certainly not under the
circumstances expressed in this instant case/application. The High Court held
in the case of Kayondo –Vs- Attorney General [1988-1990] HCB 127 that:

“Court will use its inherent powers to strike out defective written statement of
defence where the defect is apparent on the face of the record and where no
amount of amendment will cure the defect. The procedure is intended to stop
proceedings which should not have been brought to court in the first place and
to protect the parties from the continuance of futile and useless proceedings.”

The respondents’ written statement of defence does not fall under the ambits of
the above quoted case. The respondents’ written statement of defence is not
defective at all.”

II. COUNSEL FOR THE DEFENDANT

 Taremwa—Civil Procedure I Notes

A. APPEARANCE BY FILING WRITTEN STATEMENT OF DEFENCE

Where a defendant is served summons, a defendant must enter appropriate

appearance in answer to the summons. Order 5 Rule 1(1)(a) and (b).

Appearance by the defendant is by filing a written statement of defence (WSD)

within 15 days from the date of service.

STOP AND SEE (U) LTD v TROPICAL AFRICA BANK

HIGH COURT MISCELLANEOUS APPLICATION NO. 333 OF 2010

FACTS

MARK GRAVES v BALTON (U) LTD

HIGH COURT MISCELLANEOUS APPLICATION NO. 158 OF 2008

FACTS

This is an application by Chamber Summons brought under Order 9 rule 3 (I) (f),
(g) and (h) of the Civil Procedure Rules and Section 33 of the Judicature Act.

When the application came up for hearing Mr. Paul Rutisya counsel for the
Respondent, raised two preliminary points of law. First, he argued that the
Applicant had not yet filed a defence. He contended that to bring an application
under Order 9 rule 3 of the Civil Procedure Rules the Applicant must first file a
defence and then file the application. He submitted, therefore that the Applicant
has no locus to bring this application.

In his reply Mr. Baingana, counsel for the Applicant, argued that sub-rules 5 and 6
of rule 3 of order 9 CPR made the filing of a defence optional where a defendant
makes an application under sub-rule 1 of the rule.

The issue is whether an application under the above rule can be filed by a
defendant without first filing a Written Statement of defence. The Respondent
contends that where the defendant has not filed a defence he has no locus to file an
application under the rule.
 Taremwa—Civil Procedure I Notes

HOLDING

 It was held that a defendant who has been served with summons is required to
file a defence within the time and manner as provided by Order 8 rules 1 and 19
and Order 9 rule 1 of the Civil Procedure rules.

 The filing of such a defence, rule 2 provides, is not a waiver by the defendant of
any irregularity in the summons or service of the summons or in any order
giving leave to serve the summons out of the jurisdiction or extending the
validity of the summons for the purpose of service.

 The filing of a defence is clear and sufficient notice to the plaintiff that the
defendant is not only intending but is defending the proceedings against him. It
is trite that any irregularity in the pleadings or proceedings can be raised as a
preliminary objection at any stage of the proceedings either by formal
application or informally by oral application.

 Logically the requirement for notice of intention to defence cannot arise where
a defence has already been filed. The learned judge’s considered view was that
for a defendant to apply under rule 3 of Order 9 CPR he does not require to
have filed a defence first provided he gives notice of his intention to defend the
proceeding prior to the filing of the application and does so within the time
limited for service of a defence.

 The filing of a defence prior to filing an application under rule 3, is optional.

Where a defence is filed, such filing will not be a waiver to filing of the
application (rule 2). Further the filing of a defence where the defendant has
filed an application under rule 3 is not treated as a submission to the jurisdiction
unless court makes no order on the application or dismisses it (rule 5). And
where the defendant who has filed a defence, does not make the application
such defence will be treated as a submission by the defendant to the jurisdiction
of the court in the proceedings unless the defence is withdrawn with leave of
court under rule 1 (3) of Order 25 CPR.
 Whether a defence is filed or not, to file an application under Order 9 rule 3
CPR the Applicant must:-
 Taremwa—Civil Procedure I Notes

1. Be disputing jurisdiction of the court.

2. Prior to filing the application, give notice of intention to defend the
proceedings.
3. File the application within the time limited for service of a defence.
 It was held that filing of a defence is completed by delivering a defence to court
for placing upon the court record and delivering a duplicate thereof at the
address for service of the plaintiff (order 8 rule 19). This was supposed to be
done within 15 days from the date of publication of the advertisement (Order 8
rule 1(2)) CPR).

The WSD is required to be filed and served on the plaintiff within the 15 days.
Filing is deemed to be complete where the WSD is endorsed by the court and
served on the plaintiff.

CARLTON DOUGLAS KASIRYE v SHEENA AHUMUZA BAHIGEINE

FACTS

The grounds of the application are set out in the Notice of Motion and are also
contained in the affidavit in support deponed to by Carlton Douglas Kasirye, the
Applicant. Briefly, the grounds are that:

a) The Court issued the Respondent with summons to file a defence to the
Applicant’s claim in the main suit within 15 days.

b) The summons was duly and effectively served on the Respondent on the 23rd
January 2020.

c) The 15 days that were allowed by the Court for the filing of the defence expired
on the 7th February 2020 but the Respondent has to date failed to file and serve the
Applicant with a Written Statement of Defence (WSD) within the time limited by
the law.

d) The Respondent has deliberately defied the summons and the suit ought to
proceed in the Respondent’s absence and as if she had filed a defence.

e) The Respondent was well aware of the time within which to file and serve her
WSD but opted not to do so. As such she put herself outside the jurisdiction of this
 Taremwa—Civil Procedure I Notes

Court. f) Given the Respondent’s dilatory conduct, the law entitles the Applicant to
enjoy the fruits of litigation. g) It is in the interest of substantive justice that a
default judgment is entered against the Respondent and the suit proceeds as if she
had filed a defence and in her absence.

The Respondent opposed the application vide an affidavit in reply deponed to by

Sheena Ahumuza Bageine, the Respondent, in which she stated as follows:

a) The contents of the application and the supporting affidavit are baseless and
insufficient to support the grant of the orders sought. The application has no merit
and does not fulfil the conditions required to enter a default judgment in the main
suit.

b) The Respondent was served with the plaint and summons in the suit on the 23rd
day of January 2020 and her lawyers filed a defence on her behalf on the 4th day of
February 2020 which was within the prescribed time of 15 days.

c) The said WSD was served on the Applicant’s lawyers who acknowledged
receipt and further went ahead to file a reply to the WSD on 26th February 2020.

d) It is in the interest of both parties that the case is duly heard and determined by
the Court based on the evidence. The Respondent prayed that the application be
dismissed with costs.

HOLDING

 In principle therefore, the law is that filing of a WSD is complete after the
defence is placed on the court record, signed by the Registrar, affixed with the
official seal and a copy served onto the opposite party. This process is supposed
to be done within 15 days from the date of receipt of summons by the
defendant. The Respondent had thus not validly filed the WSD.

 It was held that the term default judgment is in practice used in relation to
judgments entered in a suit claiming a liquidated demand where the defendant
defaults on filing a WSD. This happens under Order 9 Rules 6 and 7 of the
CPR. The term is also applied under Order 36 Rule 3 (2) of the CPR where,
upon default of the defendant to apply for leave to defend a summary suit,
judgment and decree is entered for the liquidated claim.
 Taremwa—Civil Procedure I Notes

NB: In the exam, describe the procedure of filing a defence i.e. through a WSD.
Also, pay court fees on the defence. Failure to describe appearance/ filing WSD
results in no marks.

Where no defence is filed, a defendant is deemed to have opted not to defend the
suit, and the court will proceed accordingly.

Where the time for filing a defence lapses, but the defendant has sufficient cause
for the delay in filing a defence, there are two options/remedies;

a) Filing the defence out of time with the consent of the Plaintiff. Order 49.
b) The second option is to apply for extension of time within which to file a
WSD out of time. The application is brought under Order 51 Rule 6 by
notice of motion with a valid affidavit. The applicant must explain why the
defence was not filed in time.

ROBERT OPIO AND ANOTHER v KABUGO SSENTONGO

HCT-00-CC-MA 142 of 2008

FACTS

The Ag. Commissioner for Land Registration avers that she is the officer in charge
and control of the Department of Land Registration. As the responsible officer, her
attention has been only recently drawn to the suit by the 1st Applicant, Opio
Robert. She contends that she is the responsible officer upon whom service of the
Amended Plaint ought to have been made. She denies having been served and
states that she only learned from the said Opio Robert, the Senior Registrar of titles
for Kampala District of the alleged service of an Amended Plaint on the
Department on or about 16th August 2007. She contends that due to the failure to
serve the responsible officer, it has not been practicable for the Department to
effectively prepare itself and to file the necessary defence within the prescribed
time.

HOLDING
 Taremwa—Civil Procedure I Notes

 It was held that Order 51 rule 6 of the Civil Procedure Rules grants court the
discretion to extend time within which to take any action or proceedings. It
states:-

“Where a limited time has been fixed for doing any act or taking any
proceedings under these rules or by order of the Court, the Court shall have
power to enlarge the time upon such terms, if any, as the justice of the case may
require, and the enlargement may be ordered although the application for it is
not made until after the expiration of the time appointed or allowed; except that
the costs of any application to extend the time and of any order made on the
application shall be borne by the parties making the application, unless the
court shall otherwise order.”

 Likewise, Section 96 of the Civil Procedure Act states:-

“Where any period is fixed or granted by the court for the doing of any act
prescribed or allowed by this Act, the court may in its discretion, from time to
time, enlarge the period, even though the period originally fixed or granted may
have expired.”

The WSD must plead facts upon which the defendant relies on in his or her
defence and should not be a bear denial e.g. denying portions of the plaint without
making an express defence.

Nile Bank ltd v Thomas Kato & others [1997 – 2001] UCLR 325.

Rama Makuza v Nakamya & 2 Others HCMA No. 140/2013.

COUNTER-CLAIM

The defendant is permitted to file a counterclaim or cross action against the

plaintiff and any other parties as long as they arise out of the same transaction or a
series of transactions thereof. In the exam, where there are facts brought up that
 Taremwa—Civil Procedure I Notes

show that the defendant can or wants to sue the plaintiff on the same facts or even
new facts, this is a counter claim.

A counter claim constitutes an independent suit by the defendant against the

plaintiff together with any other parties.

Order 8 Rules 7 and 8

Omumbejja Namusisi v Makerere University HCA 1139/2013.

Where the counter claim is against the plaintiff and other parties, there is a
requirement to include a new title reflecting the added parties.

Nile Breweries v Bruno Ozunga T/A Nebbi Boss Stores HCT-00-CC-CS 0580-
2006.

Stop & See (U) Ltd v Tropical Africa Bank Ltd HCMA No. 333/2010.

PLAINTIFF’S RIGHT TO REPLY

Where the plaintiff is served with the defence, or with the defence together with
the counter claim, the plaintiff is entitled to file a reply to the defence or a reply to
the defence and counter claim within 15 days from the date of service.

Order 8 Rule 18

Maimuna Amin v Metropolitan Properties (to be sent).

That if no reply is filed, judgment is not entered automatically like it would be for
failure to file an affidavit, it is not an admission of facts.

Katuramu v Attorney General (1986) HCB 39.

Mutembuli Yusuf versus Nagwomu Musamba Moses EPA 13/2016 – claim is

made in the plaint and not in the reply to the defence. One cannot file a reply that is
better than the defence.

Order 7 Rule 11 which was applied in Stop & See (U) Ltd v Tropical Africa Bank
Ltd HCMA No. 333/2010.
 Taremwa—Civil Procedure I Notes

The general rule under Order 6 Rule 7 is that parties are bound by their pleadings
and cannot depart therefrom except by way of amendment. Inter freight
Forwarders (U) LTD v EADB SCCA No.13/1993 (leading case).

However, in appropriate cases, the court may determine an unpleaded issue if it

arises in the course of the trial and may grant reliefs based on the same.

Sinba K. Crane Bank and Another v Belex Tours and Travels Ltd.

Lutalo Moses v Abdullah Bin. Odd Jobs v Mubia [1970] EA 476 (leading case on
this point).