VERITAS
INSTITUTION OF SUITS.
The institution if suits is the Formal process by which legal proceedings are initiated before a court
of competent jurisdiction or tribunal, this encompasses salient aspects such as the Form, Jurisdiction,
cause of Action, compliance.
Institution of Suits may be done physically at the registry of the relevant court or electronically
through the Electronic Court Case Management Information System (ECCMIS).
In Matco Stores Ltd v. Grace Muhwezi Civil Suits No. 90 & 91 of 2001, court averred; suits are to
be commenced in the manner as that prescribed by the rules under Order 4 rule 1(1), in relation to a
substantive suit and not an application.
In Mayanja David v. Attorney General (HCCS No. 528 of 2008), High court reaffirmed that the
institution of suits happens by presenting a plaint in accordance with section 19 of the Civil procedure
Act Cap. 282 and in the manner prescribed under Order 4 rule 1.
NB: Before instituting a suit, the considerations include;
1. Whether a suit arising out of similar set facts or transaction can be prosecuted and sustained
under criminal law and procedure?
2. Whether a stay of the civil suit can be granted pending determination of a criminal matter?
3. Whether the Plaintiff in a civil suit can file a cause of action on a judgement of a criminal
matter?
NB: Civil proceedings require a lower burden of proof (balance of probabilities) compared to criminal
cases which require the burden of proof beyond reasonable doubt.
In Esso Standard v. Michael Nabudere HC No. 594/1990, the defendant applied to stay civil
proceedings on ground that there were pending criminal proceedings derived from the same facts,
which was answered in the affirmative, Karokora J held that the plaintiff's demand for damages in
the civil suit did not in any way prejudice the criminal proceedings.
In Sarah Basngwa Kulata v. Uganda Supreme Court Criminal Appeal No.3 of 2018, Whether under
Section 19(1)(c) of the Inspectorate of Government Act, the Inspector General of Government is
barred from investigating and prosecuting a case under criminal where one is instituted under civil
however, the Supreme court agreed with the court of appeal that criminal proceedings may emanate
from the same facts but it doesn’t deter prosecutors to institute criminal proceedings.
NB: Civil proceedings don’t bar criminal proceedings, i.e., fraud etc.
1. NOTICE OF INTENTION TO SUE & STATUTORY NOTICES.
A notice of intention to sue is a formal notice to the adverse party informing them of your intention
to bring civil proceedings against them and also equally acts as a reminder of drafters claim against
them.
In Wambugu v. Public Service Commission [1972] 1 EA 296, it was held that in a case where the
applicant doesn’t serve the respondent with a Notice of intention to sue, they aren’t entitled to an
award of costs on success.
STATUTORY NOTICES.
Previously, it was a mandatory requirement to serve a Statutory Notice, under the Civil Procedure
and Limitation Miscellaneous Provisions Act, 45 days before commencement of a suit, KCCA v.
Kabandize and 20 others, SCCA No. 013 of 2014.
VERITAS
NB: The 3 (three) entities to which a Statutory Notice was required;
i. Attorney General, on behalf of government Article 119;
ii. Local Govt Councils, section 3 and Section 6, as they body corporate with capacity to
sue or be sued. (Local Governments Act)
iii. Scheduled Corporation, meaning a statutory corporation listed in the schedule to the
Acts of parliament.
KCCA v. Kabandize and 20 others, SCCA No. 013 of 2014 which had overturned the COA decision
in Kabandize and 20 others v. Kampala Capital City Authority (KCCA) Civil Appeal No. 28 of
2011, Court accordingly found and held that the requirement to serve a statutory notice of the
intention to sue the government of local authority or scheduled corporation is no longer a mandatory
requirement in view of Articles 274 and 20(1) of the Constitution of Uganda 1995. Court also found
that section 2 of the Civil Procedure and Limitations Act (miscellaneous provisions) is not a law that
treats all persons equally before the law neither does it accord them equal protection.
J.B and 20 others vs. KCCA COCA No. 28 of 2011, where it was held that; “The Section 2 of Civil
Procedure and Limitations (Miscellaneous Provisions) Act Cap 7 was enacted in 1969. It therefore
falls under the category of all laws that must be construed in conformity with the 1995 Constitution
under Article 274. While construing Section 2 of The Civil Procedure and Limitations (Miscellaneous
Provisions Act) already set out above, Courts of law must therefore take into account the provisions
of Articles 274 and Article 20 of the Constitution of Uganda. Article 20(1) of the Constitution.
2. PAYMENT OF COURT FEES.
As a requirement under the law that any court pleadings or documents attract court fees, the same
must be paid at the time of filing of the document. Rule 6 of Judicature Court fees and deposit rules,
Order 9 rule 16 for defences, the suit may be dismissed.
Under Order 7 rule 11 (c), a plaint shall be rejected where the relief claimed is properly valued but an
insufficient fee has been paid.
In Byabazaire G Thaddeus v. Mukwano Industries, the court averred that; assessment of court fees
is done by the court guided by the rules.
In Pinnacle Projects Limited versus Business in Motion Consultants Ltd (Misc. App. No. 362 Of
2010) there is a limitation of 10 days within which to file Court fees and as such a suit is deemed to
be correctly filed where the relevant Court fee has been paid and the proper documents filed in the
relevant registry of the appropriate court.
In Amrit Goyal V Harichand Goyal and Others CAC App. No. 109/2004 & Male Mabirizi
Kiwanuka V. Kabaka of Buganda, Court of Appeal averred on the Court fees are distinct from
security for costs in the sense that security for costs is normally by order of court, save in COA in
accordance with the Constitutional Petition Rules and SC where it’s prescribed by the rules. Security
for costs is usually provided in the form of a bank cheque paid into court or held in a trust account.
If the defendant wins, the money can be used to cover the costs order. If the claimant wins, the
security is returned.
In Mukoni Collins v. Electoral Commission & Anor HCMA o. 055/2011, Where pleadings or other
court document is filed without payment of the relevant court fees, the court may dismiss the suit.
Order 9 rule 16, or may grant leave to defaulting party to pay as long as they’re still within the
limitation period as.
In Okot Ayere Olwedo Justin vs. AG HCCS No. 381/2005, The court opined that process of filing
a suit is therefore complete where the relevant pleadings are filed together with proof of payment of
VERITAS
court fees and as such when (i) Pleadings are received by the court; (ii) they must stamped by the
cashier who confirms payment of court fees; (iii) then suit number is allocated; (iv) the suit is
registered accordingly; (v) Thereafter summons will issue.
NB: Where a suit is filed electronically, the pleadings are not stamped nor signed by the registrar but
they are electronically admitted and validated. As well enunciated in Equity Bank (U) Ltd. v.
Simbamanyo Properties Ltd. Misc. App. No. 58 of 2022.
3. MODES OF COMMENCEMENT OF SUITS.
In Meera Investments Ltd V Jeshang Popat Shah CACA No. 56 of 2003, where there was a
withdrawal in accordance with Order 25 of the rules, due to a consent which was later breached which
meant bringing a fresh suit since the old suit ceases to exist and as such necessitates the filing of a
fresh suit in accordance to Section 19 of the Civil Procedure Act Cap. 282 and Order 4 rule 1 of the
Rules.
NB: The necessary procedure in existing law must be strictly adhered to, in Basil Difasi & Ors v
National Unity Platform & Ors Misc Cause No. 226 of 2020, where Rule 5 (1) of the Judicature
(Judicial Review) Rules 2009, provided that; “An application for judicial review shall be made promptly and
in any event within three months from the date when the grounds of the application first arose” since it was filed out
of the mandated timeline, court declines to entertain the application since it was not brought under
any known procedure.
Section 19 of the Civil Procedure Act Cap. 282, “every suit shall be instituted in such manner as may be
prescribed by the rules.”
NB: Where the manner is not provided, proceed under Section 39 of the Judicature Act.
a) ORDINARY PLAINT [Orders 4, 6 & 7]
Order 4 rule 1, provides for every suit to be instituted by presenting a plaint to the court. Furthermore,
under subrule 2, every plaint must comply with Orders 6 and 7 of these Rules so far as they are
applicable which primarily provide the substantive and procedural for drafting an ordinary plaint.
NB: An ordinary plaint is preferred in contentious matters; Post Bank (U) Ltd v Abdul Ssozi
Supreme Court Civil Appeal no. 8 of 2015, Testimony Motors v. Commissioner Customs URA Civil
Suit No. 004 of 2011
i. Where the cause of action requires pleading of material particulars, e.g., negligence, fraud,
wilful breach of trust, illegality.
ii. Order 6 rule 3, require material particulars to be given where pleadings rely on
misrepresentation, fraud, breach of trust, wilful default or undue influence.
iii. Where the relief sought includes general, special or aggravated damages and unliquidated
pecuniary claims, like mesne profits.
iv. Where the nature of the claim requires oral evidence.
v. The nature of breach.
vi. Where the nature of the claim raises complex questions of law or fact procedure is by ordinary
plaint.
b) SPECIALLY ENDORSED/ SUMMARY PLAINT [Order 36 rule 2]
In Post Bank v Abdul Ssozi Supreme Court Civil Appeal no. 8 0f 2015, court averred Order 36 was
enacted to facilitate the expeditious disposal of cases involving debts and contracts of a commercial
nature to prevent defendants from presenting frivolous or vexatious defences in order to
VERITAS
unreasonably prolong litigation. that its applicable only where a liquidated demands exists; for money
or debt founded on a cheque, contract, where the tenancy has expired and the landlord seeks to
recover vacant possession of the premises. Its inapplicable for unliquidated reliefs like general or
special damages because cannot be ascertained or quantified at the time of filing the suit or other
actions without a liquidated demand e.g., trespass, cancellation of title.
NB: it’s an exparte application, and as such the defendant has no right to file a defence however for
the other party to be heard, they apply for leave to appear and defend as opined in Pinnacle Projects
Limited versus Business in Motion Consultants Ltd (Misc. Appl. No 362 Of 2010)
Order 36 is intended to enable the Plaintiff with a liquidated claim to which there appears to be no
good defence to obtain a quick and summary judgement. Subrule 2 is restrictive as to what claims can
be brought.
In Shelter Limited v. Anstasia Nakazzi Misc. App.115 /2007, court averred a specially-endorsed
plaint must be accompanied by a valid Affidavit in support in accordance with Order 36 rule 4 of the
CPR S.I 71-1.
NB: Order 36 rule 11 provides for setting aside the decree if dissatisfied with aspects like improper
service, one has good cause, etc.
c) ORIGINATING SUMMONS [Order 37]
Order 37 rule 1 provides for circumstances which include; foreclosure of mortgages, administration
of estates or matters relating to construction or interpretation of a deed or an instrument.
In Zalwango Eliverson Anor v Dorothy Walusimbi and another HC OS No. 03/2013, Court found
that contentious matters which included allegations of fraud could only be resolved by oral evidence
by both parties other than affidavit evidence.
NB: Originating summons are suitable where; there are no complex questions of law or fact i.e.,
questions for determination are simple and straight forward.
In Testimony Motors Ltd Versus The Commissioner Customs URA HCCS No.004/2011,
Christopher Madrama Izama J. averred that where facts are not in dispute. Originating summons are
the appropriate procedure for interpretation of statutes.
Hon. Justice George Okello in Hilda Otim & Ors v. Ocan Christopher & 3 Ors Misc. Cause No.
035 of 2021, averred that albeit the parties had filed by way of Notice of motion, the correct procedure
for non-contenteous matters was by way of Originating summons under Order 37.
NB: the Procedure of originating summons is provided for under Order 37 rule 8 & 9.
d) NOTICE OF MOTION [Order 52 rules 1, 2 & 3]
A notice of motion is more applicable for reliefs such as; (i) injunctions; (ii) Judicial review; (iii)
setting aside a default Judgment; (iv) enlargement of time within which to file pleadings; (v) interim
and interlocutory relief.
NB: Applicable to applications where no procedure is prescribed by the rules.
In Nakitto & Brothers Limited v. Katumba [1983] HCB 70, a “notice of motion” means of “suit”
defined in Section 2 of the CPA Cap. 282, commenced in any manner prescribed and since it was
neither signed by the judge or an officer appointed by him, nor was it sealed with the court and thus
VERITAS
did not comply with the procedure laid down under the rules in Order 52 of the Civil Procedure
Rules. The application was therefore a nullity.
NB: Order 52 rule 1(1) requires for every application by way of notice of motion to be accompanied
by an affidavit in Support and shall be accompanied by summary of Evidence, in accordance to Order
6 rule 2.
.
Furthermore, a notice of motion must be extracted in prescribed form by the rules and must be signed
and sealed by the court because they are summons however should state the reliefs sought and key
grounds.
e) CHAMBER SUMMONS
Applicable where the rule prescribes it, Order 11 rule 2 (consolidation of suits), Order 41 rule 1, 2 &
9 (injunctions), Substituted service, Order 26 rule 3 (Security for costs)
In Odongkara & Anor V Komakech & anor [1968] EA 210, it was averred that a notice of motion
was deficient because it did not sufficiently set out the grounds on which it was made. However, the
absence of grounds in a motion is not fatal if an affidavit in support is attached and shall be
accompanied by summary of Evidence, in accordance to Order 6 rule 2.
In Serefaco Consultants Ltd v. Euro Consult & Anor CACA No. 16/2007 court averred that for a
notice of motion and Chamber Summons should be accompanied by valid affidavits and are part and
parcel of the whole pleading.
In DFCU Leasing Co Ltd v. Nassolo Faridah HCT MA 0074/2007, court opined that notice of
motions and Chamber Summons should state the law under which relief is sought save that failure to
do so is not fatal as long as the court has jurisdiction to grant the relief sought.
Where litigant proceeds by chamber summons instead of Notice of Motion, the omission is not fatal
as it is a mere matter of form. As averred by Bamwine J, in Francis W. Bwengye V Haki Bonera
HCT-00-CV-CA No.033-2009
NB: Chamber summons must be extracted in a form prescribed by the rules and must be signed and
sealed by the court because they are summons however should state the reliefs sought and key
grounds.
f) SUITS BY PETITION.
A suit may be commenced by a petition only if the law prescribes such a procedure. A petition must
be accompanied by an affidavit in support, as well as a summary of evidence and attendant lists
required under Order 6 Rule 2.
g) OTHER MODES OF SUITS.
In the Industrial Court, by way of memorandum of claim and it being a pleading, must be supported
by a summary of evidence and the attendant lists in Order 6 Rule 2.
In any other claim or application where no specific procedure is prescribed by law, Section 39(2) of
the Judicature Act permits a litigant to adopt such procedure as is convenient and practicable in
proceedings in the High Court.
VERITAS
i. COMPLAINT ON OATH.
This is a formal legal document or statement made under oath, typically by a complainant.
ii. COMPLAINTS.
Reference from High Court to Constitutional Court.
Effect of non-service.
The judgment might be set aside
iii. APPLICATION.
a) Setting aside ex-parte judgment [Order 9 rule 12].
where judgment has been entered by the registrar in cases under Order L of these Rules, the court
may set aside or vary the judgment upon such terms as may be just.
b) Suit dismissed upon failure to pay fees. [Order 9 rule 16]
Where it’s found that the summons has not been served upon the defendant in consequence of the
failure of the plaintiff to pay the court fee or charges, if any, for the service, the court may make an
order that the suit be dismissed.
c) Setting aside decree ex-parte against defendant.
In any case in which a decree is passed ex-parte against a defendant, he or she may apply to the court
by which the decree was passed for an order to set it aside; and if he or she satisfies the court that the
summons was not duly served, or that he or she was prevented by any sufficient cause from appearing
when the suit was called on for hearing, the court shall make an order setting aside the decree as
against him or her upon such terms as to costs, payment into court, or otherwise as it thinks fit, and
shall appoint a day for proceeding with the suit; except that where the decree is of such a nature that
it cannot be set aside as against such defendant only, it may be set aside as against all or any of the
other defendants also.
