ORIGINATING SUMMONS AS A MODE OF COMMENCEMENT A SUIT IN THE
UGANDAN COURTS; A CRYTICAL ANNALYSIS
1.0 Originating summons
Originating summons is a special procedure set out in Order 37 of the Civil procedure Rules
and applicable to parties and claims set therein.
In Abeeb Ayetobi v Olusola osiade (CA/L/905/09), the court of appeal of Nigeria stated that
where an action is begun or initiated by means of originating summons procedure the trial judge
is to examine the claim before him and then to ascertain whether the procedure in originating
summons was suitable or appropriate to the action
Therefore the procedure is for counsel to appear before a judge and through an oral submission
convinces court that the claim is proper for originating summons to issue
Originating summons must indicate the law under which the relief is sought and is supported by
an affidavit which contains the evidence in support (see: Patrick Rwekibira v Muwagibu Kamya
[1972] 2 ULR 166)
It is worth noting that where you can commence a suit by originating summons you can as well
go by plaint but the reverse is not true. More so, originating summons is issued by a judge and
not the registrar.
1.1 Circumstances under which originating summons is used to commence a suit
Originating summons as a procedure is invoked in claims which are simple and straight forward
and do not merit a full trial. This position was fortified in the case of Zalwango Elverson and
anor v Dorothy Walusimbi and anor (O.S No.03 of 2013). Justice Godfrey Namundi was of a
view that originating summons are intended to solve simple and straight forward matters which
do not require investigations. The court further stated that originating summons should be used
in situations where there are no substantial disputes as to facts but rather on legal consequences
of the set of facts
originating summons is therefore intended in situations where there would be no need of
rendering or taking evidence in order to arrive at the relief prayed for.(see: Janet Ntanya v Saida
sebaduka (HC O.S No. 020/2009)
Originating summons is equally appropriate in matters that require interpretation of documents,
deeds or instruments. Indeed in Testimony Motors v The commissioner customs and URA
(HCCS No. 004/2011 (O.S). Justice Christopher Madrama held that, where facts are not in
dispute, originating summons would be the appropriate procedure for interpretation of statutes.
This seems also to be the position in E. Nakabugo v Francis Drake Serunjogi (1981) HCB 58
where it was held inter alia that originating summons is a suitable procedure where the main
point at issue is one of construction of a document or statute or is one of pure law
1.2 Circumstances under which originating summons is not an appropriate procedure
Where the claim involves complicated questions of law or fact which court cannot determine by
mere reliance on affidavit evidence, originating summons is inappropriate. In E. Nakabugo v
Francis Drake Serunjogi (supra), it was held that it is trite law that when the disputed facts are
complex and involve a considerable amount of oral evidence, an originating summons is not the
proper procedure to take. This position has been fortified by the supreme court in General Parts
(U) Ltd and anor v Non Performing Recovery Trust (SCCA No. 49/04) where justice Mulenga
agreed with the court of appeal that Originating Summons is best suited for cases where the
contention between the parties do not involve disputed complex facts. Where the judge is of
opinion that the dispute cannot best be disposed of on Originating Summons, he may either
adjourn it into court for taking oral evidence or refer the parties to a suit in the ordinary course,
but certainly not by Notice of Motion.
It also follows that where the nature of claim require specific pleading of particulars for example
fraud and considerable amount of oral evidence, originating summons is not the appropriate
mode. This was expounded in the case of Mayanja Bosco v Kasikururu Louis & ors (HC O.S
No. 5/2008) where it was held that suits in which fraud is alleged must be brought by ordinary
plaint owing to the burden of proof imposed by law on an allegation of fraud.
1.3 Advantages of commencing a suit by originating summons over the other modes
It is cheap; the court in Mayanja Bosco v Kasikururu Louis & ors (supra) citing Kulsubai v
Abdulhessein [1957] E A 699 at 701 held that the essence of the procedure of originating
summons is to enable simple matters to be settled by court without the expense of bringing an
action in the usual way
It is simple and speedy; this was the proposition in Nakabugo v Serunjogi (supra) that
originating summons is meant to be a simple and speedy procedure and its merits are based on
the facts that there are no pleadings involved or in general no witnesses
2.0 conclusion
Originating summons is one of the modes of commencement of a suit in the Ugandan courts,
however, the claim and relief sought must be within the scope discussed herein above
REFERENCES
The Civil Procedure Rules SI 71-1
Abeeb Ayetobi v Olusola osiade (CA/L/905/09)
Patrick Rwekibira v Muwagibu Kamya [1972] 2 ULR 166
Zalwango Elivason and anor v Dorothy Walusimbi and anor (O.S No.03 of 2013
Jainet Ntanya v Saida sebaduka (HC O.S No. 020/2009)
Testimony Motors v The commissioner customs and URA (HCCS No. 004/2011 (O.S).
E. Nakabugo v Francis Drake Serunjogi (1981) HCB 58
General Parts (U) Ltd and anor v Non Performing Recovery Trust (SCCA No. 49/04)
Kulsubai v Abdulhessein [1957] E A 699 at 701
Mayanja Bosco v Kasikururu Louis & ors (HC O.S No. 5/2008
