www.ugandaonlinelawlibrary.

com law teacher ldc

LAW DEVELOPMENT CENTRE

CIVIL PROCEDURE MODEL QUESTIONS

Civil Procedure Notes 1

www.ugandaonlinelawlibrary.com law teacher ldc

Table of Contents

1.0 Question on Error on Face of Record ................................ .............................. 3

2.0 Question on judgement by the family and children’s Court......................... 17

3.0 Question on Propriety of Proceedings........................................................... 19

4.0 Question on mistake of counsel ................................ ..................................... 31

5.0 Question on striking out WSD................................................................ ......... 34

6.0 Question on Counsel failing to attend court.................................................. 38

7.0 Question on filing notice after extraction of warrant .................................... 42

Civil Procedure Notes 2

www.ugandaonlinelawlibrary.com law teacher ldc

1.0 Question on Error on Face of Record

Facts
The matter went to a full hearing but counsel contends that the award of interest on
special damages from the date of judgement is an error on the face of the record and
wants a remedy.

Issue

Issues to be resolved:
i) What remedies are open to the Defendant? Can it appeal?
ii) What is the procedure & forum?
iii) What are the relevant documents?

Law Applicable
Civil Procedure Act
Civil Procedure Rules
The Judicature (Court of Appeal Rules) Directions Statutory Instrument 13—10

Discussion

Revision

Section 83 provides for revision. It provides that the High Court may call for the
record of any case which has been determined under the Act by any magistrate’s
court, and if that court appears to have—
Civil Procedure Notes 3
www.ugandaonlinelawlibrary.com law teacher ldc

(a) exercised a jurisdiction not vested in it in law;

(b) failed to exercise a jurisdiction so vested; or
(c) acted in the exercise of its jurisdiction illegally or with material irregularity
or injustice, the High Court may revise the case and may make such order
in it as it thinks fit; but no such power of revision shall be exercised—
(a) unless the parties shall first be given the opportunity of being heard; or
(b) where, from lapse of time or other cause, the exercise of that power
would involve serious hardship to any person.

In Mubiru v. Kayiwa 1979 HCB 212 it was held that the court can set aside
proceedings by revision if there is an error on the face of the record. The procedure
is to write an ordinary letter to the registrar complaining about the irregularities in the
proceeding.

It is however, pertinent to note that 3 conditions precedent to revision as a remedy

do not arise in our facts and therefore it is not an appropriate remedy for the def.

Appeal

Article 134(2) constitution provides that an appeal shall lie to the court of appeal
from such decisions of the High Court. Under Section 66 of the CPA, it is stated
that unless otherwise expressly provided in this Act, an appeal shall lie from the
decrees or any part of the decrees and from the orders of the High Court to the Court
of Appeal. Section 67 further provides that an appeal may lie from an original decree
passed ex parte. However, no appeal can lie from a decree passed by the court with
the consent of parties.

In Makula International v. Cardinal Nsubuga C.A. 4/81 It was held that an appeal
is a creature of statute and therefore the appropriate remedy for the defendant in this
case is to appeal to the court of appeal.
Civil Procedure Notes 4
www.ugandaonlinelawlibrary.com law teacher ldc

Merits of the case

1. The damages awarded to the plaintiff were inordinately high and excessive. In
the case of Fortunater Federici v. Dr. Julisu Wambette & Irene Nabwire
C.A. 28/98. The court reduced an award of general damages from the sum of
25m/= to 25m/= to the respondent for injuries sustained, suffering, pain, shock
and loss of amenities. The awards given by the trial court in this case were
reduced because they were inordinately high.

2. The learned trial judge erred in mixed fact and law when he adopted a wrong
formula that is erroneous estimate to arrive at the award of 6m/= and 3m/= for
the loss of biz.

At page ….lines …….the learned trial judge himself contested that he had never
come across such a case but that in his view general damages of 6m/= & 3m/= were
proper.

According to the case of Byabaleme v. UTC LTD SCCA 10/93 it was held that an
appellate court can interfere with an award if it is shown that the trial judge
proceeded on a wrong principal or that he misapprehended the evidence in same
material aspects and therefore arrived at a figure which was either inordinately high
or low.

Issue 2
Procedure forum & documents
Procedure: court of Appeal Rules. Lodgment of appeals from the High Court to
C.O.A.

Civil Procedure Notes 5

www.ugandaonlinelawlibrary.com law teacher ldc

Rule 76 (1) provides that any person who desires to appeal to the court shall give
notice in
writing, which shall be lodged in duplicate with the registrar of the High Court. Under
76 (2), every notice should be lodged within fourteen days after the date of the
decision against which it is desired to appeal. Under Rule 76(3), every notice shall
state whether it is intended to appeal against the whole or part only of the decision;
and where it is intended to appeal against a part only of the decision, it shall specify
the part complained of, state the address for service of the appellant and state the
names and addresses of all persons intended to be served with copies of the notice.

Rule 76(5) the notice of appeal should be in form D in the 1st schedule.

Rule 77 the registrar High Court shall send a copy to the registrar Court of Appeal.

Rule 78(1) service of notice of appeal shall within 7 days of lodgment of the notice of
appeal.
Rule 80(1) respondent shall give address for service within 14 days after service on
him of notice of appeal.

Rule 80(2) a notice of address shall be in form E in a 1st schedule.

Institution of appeals
Rule 83(1) institutions of appeals is proper within 60 days after the date when the
notice of appeal was lodged:-
a) memorandum of appeal 6 copies
b) record of appeal 6 copies
c) prescribed fee
d) security for the costs of the appeal

Civil Procedure Notes 6

www.ugandaonlinelawlibrary.com law teacher ldc

Rule 83(2) where application for a copy of the proceedings in the High Court has
been made within 30 days after the decision, such time will be extended by the
registrar of the High Court.

Rule 86(1) provides for contents of a memorandum of appeal.

Rule 87(1) contents of record of appeal.

Rule 88(8) preparation by counsel/appellant of a certificate of correctness.

Relevant Documents
- Decree
- Notice of appeal
- Letter requesting proceedings
- Records of proceedings
- Certificate of correctness
- Certificate of readiness to be preferred by the registrar.

Civil Procedure Notes 7

www.ugandaonlinelawlibrary.com law teacher ldc

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

CIVIL SUIT NO135 OF 2004

Fred
Mwesigwa::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::Plaintiff

Versus

Umoja Tea Estates Ltd::::::::::::::::::::::::::::::::::::::::::::::::::::::::::Defendant

DECREE IN ORIGINAL SUIT

This suit coming on this 4th day of June 2000 for final disposal before Hon. Justice
Akili in the presence of Mr. John for the plaintiff and Mr. Henry for the defendant.

IT IS ORDERED AND DECREED THAT

a) The defendant pays to the plaintiff the current price of 26, 400,000/=
Uganda Shillings as special damages.

b) The defendant pays 10,000,000/=

c) The Defendant pays interest on (a) and (b) above at the rate of 18% per
annum from the date of judgement until payment in full.

Civil Procedure Notes 8

www.ugandaonlinelawlibrary.com law teacher ldc

d) Costs of the suit

GIVEN under my hand and seal of this honourable court this 15th day of June
2008.
……………………………………..
REGISTRAR
We approval

………………………………….. …………………………………..
Counsel for plaintiff Counsel for defendant

Extracted out by

Firm A & Co. Advocates

P.O. Box 7117
KAMPALA.

Civil Procedure Notes 9

www.ugandaonlinelawlibrary.com law teacher ldc

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

CIVIL SUIT NO135 OF 2004

Fred
Mwesigwa::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::Plaintiff

Versus

Umoja Tea Estates Ltd::::::::::::::::::::::::::::::::::::::::::::::::::::::::::Defendant

(Appeal from the judgment and order of Hon. Mr. Justice Akili
in the HCCS No. 135 of 2004)

NOTICE OF APPEAL
(under r.76(1) court of Appeal Rules Directions)

TAKE NOTICE that the appellant being dissatisfied with the decision of Hon.
Mr. Akili given in the High Court of Uganda at Kampala on the 26th day of
June 2008 intends to appeal to the court of Appeal of Uganda against the
whole decision.

The address of service of the appellant is c/o Firm A & Co. Advocates, P.O. Box
7117, K’la.

Civil Procedure Notes 10

www.ugandaonlinelawlibrary.com law teacher ldc

It is intended to serve copies of this notice on M/s Firm C & Co. Advocates 10.
George Street, P.O. Box 233, K’la.

DATED this…..day of August 2008

………………………………………….
Counsel for Appellant

To: The Registrar of the High Court at Kampala

Lodged in the H.C. registry at K’la this 27 h day of June 2008.

……………………………
Registrar

Drawn & Filed by;

Firm A & Co. Advocates
P.O. Box 7117
K’la

Civil Procedure Notes 11

www.ugandaonlinelawlibrary.com law teacher ldc

Record of Proceedings

M/S Firm A & Co. Advocates

P.O. Box 7117
K’LA

5th June 2008

To: The Registrar

H.C. of Uganda
K’LA

Your Worship,
RE: APPLICATION FOR A RECORD OF PROCEEDINGS OF HCCS
NO.135 OF 2004 BEFORE HON. MR. JUSTICE AKILI

We still act for and on behalf of our client Umoja Tea Estate Ltd, the defendant in the
above suit on whose instructions we address you as follows:
a) that on the 26/6/2008the Hon. Mr. Justice Akili delivered judgment against our
client and awarded damages which are in our opinion inordinately high.
b) That our client who was a defendant in the above suit intends to appeal and
there is already an appeal pending in the court of appeal of Uganda.

We hereby humbly apply for the record of proceedings of the lower court in the
above matter of which we are intending to rely on the appellant court.

Yours faithfully

…………………………………..
for: Firm A & Co. Advocates
Civil Procedure Notes 12
www.ugandaonlinelawlibrary.com law teacher ldc

P.O. Box 7117

KAMPALA.

Civil Procedure Notes 13

www.ugandaonlinelawlibrary.com law teacher ldc

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

CIVIL SUIT NO135 OF 2004

Fred
Mwesigwa::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::Plaintiff

Versus

Umoja Tea Estates Ltd::::::::::::::::::::::::::::::::::::::::::::::::::::::::::Defendant

(Appeal from the judgment and order of Hon. Mr. Justice Akili
in the HCCS No. 135 of 2004)

MEMORANDUM OF APPEAL

(Under r.86(1) Court of Appeal Rules)

Umoja Tea Estate Ltd, the above name appellant appeals against the whole of the
above mentioned decision on the following grounds namely:-

1. That the learned trial judge erred in law when he awarded damages which
were inordinately high and excessive.

2. That the learned trial judge erred in mixed facts and law when he charged
interest on special damages.
Civil Procedure Notes 14
www.ugandaonlinelawlibrary.com law teacher ldc

It is proposed to ask the court for orders that:-

1. The appeal be allowed

2. The award of general damages be substituted with a lesser sum.

3. The award of interest on special damages be set aside.

4. Costs be awarded to the appellant in this court and the court below.

……………………………………….

Counsel for appellant

Drawn & Filed by;

Firm A & Co. Advocates

P.O. Box 7117

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

CIVIL SUIT NO135 OF 2004

Fred
Mwesigwa::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::Plaintiff

Versus

Umoja Tea Estates Ltd::::::::::::::::::::::::::::::::::::::::::::::::::::::::::Defendant

Civil Procedure Notes 15
www.ugandaonlinelawlibrary.com law teacher ldc

(Appeal from the judgment and order of Hon. Mr. Justice Akili
in the HCCS No. 135 of 2004)

CERTIFICATE OF CORRECTNESS

Under r.87(8) court of Appeal Rules)

I Henry Tumukunde, counsel for the appellant, do hereby certify that each copy of
the record of appeal before this Hon. Court of Appeal is correct.

DATED this 15th day of June 2008.

…………………………………..

ADVOCATE FOR APPELLANT

Civil Procedure Notes 16

www.ugandaonlinelawlibrary.com law teacher ldc

2.0 Question on judgement by the family and children’s Court

Brief Facts

This was an application for custody of a child by the father. The application had four
grounds majorly that the mother has neglected the child. The court found for the
applicant and the respondent is aggrieved.

Legal issues

1. Whether the magistrate had jurisdiction

2. whether the respondent has any remedy

3. what are the remedies, procedure & form.

Law Applicable

Civil Procedure Act

Civil Procedure Rules

Childrens Act Cap. 59

The Children (Family and Children Court) Rules.

Discussion

This matter was presided over by the Magistrate Grade II in the family and children’s
court. Section 13 of the Children’s Act establishes the family and children court. It
provides that there shall be a court to be known as the family and children court in
every district, and any other lower government unit designated by the Chief Justice
by notice in the Gazette. Under section 13 (2) a magistrate not below the grade of
magistrate grade II shall be assigned to preside over the family and children court.

Civil Procedure Notes 17

www.ugandaonlinelawlibrary.com law teacher ldc

Section 14 provides for the jurisdiction of family and children court. A family and
children court shall have power to hear and determine among others applications
relating to child care and protection. Therefore, the court had jurisdiction.

Section 18 further provides for the rules of the court. It provides that the Rules
Committee may make rules prescribing the procedure to be followed in a family and
children court and, in particular, as to the recording of evidence and the manner of
arriving at and recording of findings and orders.

Under Rule 33 of the Children (Family and Children Court) Rules. An appeal
shall lie, in a case involving the trial of a child, from a family and children court to a
chief magistrate’s court;

In addition, Rule 33(2) provides that the procedure of appeal to be followed in the
court shall be, with necessary modifications, similar to the procedure followed in a
magistrate’s court under the Magistrates Courts Act and the Criminal Procedure
Code Act in criminal cases and the Civil Procedure Rules in civil cases. This means
that the documents required will be similar to the ones above.

Civil Procedure Notes 18

www.ugandaonlinelawlibrary.com law teacher ldc

3.0 Question on Propriety of Proceedings

Brief Facts:

Betty Namutebi Sometime in March 1995 approached Arnold Okot to import a motor
vehicle from Japan, namely Nissan Sony pick-up on her behalf through purchase.
The agreed purchase price which was CIF Kampala was the equivalent of US $
4,500. She paid the money in two instalments but the car was never delivered as
agreed. A suit was brought against Okot and heard by a number of magistrates. The
suit was finally decided in favour of the plaintiff – Betty Namutebi. Advise the parties
on their rights and liabilities.

Issues

1) Whether the court proceedings were proper

2) What remedies are available to the aggrieved party?

3) What is the forum, procedure and Docs.

Law Applicable

C.P.A.

C.P.R

M.C.A.

The Constitution of Uganda

The Judicature Act

The Evidence Act

Caselaw.

Civil Procedure Notes 19

www.ugandaonlinelawlibrary.com law teacher ldc

Resolution:

In considering the propriety of the proceedings, it is first important to consider the

jurisdiction of the magistrates that heard the case.

Sect.207 of MCA is to the effect that a chief magistrate has jurisdiction to hear a
case where the subject matter doesn’t exceed shs.5,000,000. Also that a magistrate
grade I has jurisdiction to hear a case where the subject matter does not exceed
shs.2,000,000 while Grade II, subject matter not exceeding 500,000. Looking at the
facts, the claim is for US $ 4500 which is equivalent to about 4,860,000/= using the
U.S dollar rate quoted at page 27 by counsel for the plaintiff.

Thus, although previously the legal position was that the case can’t be heard by
more than two magistrates, the legal position was settled by the supreme court of
Uganda in the case of Arvin Patel v. Uganda S.C. Crim Appeal No 2001 where the
court held that a case can be handled by any number of magistrates.

In line with this argument, order 16 rule 10 CPR is to the effect that a chief who
cannot finish a case can have it transferred to another chief and evidence heard by
either magistrate. This argument could be used in support of the respondent’s case
and be considered a merit to her case. Morever, the grade 1 and II did not hear the
substantive matter of the suit. They simply adjourned. It can therefore be argued to
have occasion of no miscarriage of justice.

Another merit of the appellants case however would be argued to arise in as far as
the plaint was filed in the Chief Magistrates court of Buganda Road which is a
criminal court. On the otherhand, the written statement of defence and the hearing of

Civil Procedure Notes 20

www.ugandaonlinelawlibrary.com law teacher ldc

the suit as well as the delivering of the judgment were all in the chief magistrate’s
court of Mengo.

Another point to be considered as a merit to the appellant’s case would be

inconsistencies and contradictions in evidence. In the plaint, the car referred to is a
Datsun Sunny pick up. However, the PW1 at page 17 in her testimony calls it a
Nissan Sunny pick-up. PW2 in his testimony at page 24 (last line) also referred to
the car in question as a Nissan sunny pick-up.

In Uganda v. Abdul Nasser [1982] HCB 1 it was held that where grave
inconsistencies occurred, the evidence would be rejected unless satisfactorily
explained. However, in Tindigwihura Tubahe vs. Uganda S.C. Criminal Appeal
No.9/1987, it was held that discrepancies can be ignored if they do not point to
deliberate untruthfulness on the prosecution witness.

In the instant case, the inconsistency was grave because it pointed to a discrepancy
in the plaintiff evidence that was never resolved. This could point to the fact that she
was not sure of what car it was that she was claiming. In his judgment, the chief
magistrate did not resolve this matter but simply referred to the car in question as a
Nissan Datsun pickup (at page 44 and also as a Datsun Nissan sunny pickup (at
page 47).

Another matter to consider is the issue of adjournments. Article 126(2)(b) of 1995

constn. Provides that in adjudicating cases of both a civil and criminal nature, the
court shall, subject to the law, apply the following principles, justice shall not be
delayed. The law to be considered is order 15 r.1 CPR which provides that the court

Civil Procedure Notes 21

www.ugandaonlinelawlibrary.com law teacher ldc

may, if sufficient cause is shown, at any stage of the suit grant time to adjourn the
hearing of the suit.

Also in Busicom Systems Ltd v. Kirya [1991] HCB 67. It was held that
adjournments are only allowed for sufficient cause. In Kajingo v. Kampala
Muncipal Council MB 4/63 it was held that defence counsel’s consent is not
sufficient cause for the plaintiff’s application for adjournment to be allowed.

In the present case, on the 11th/4/97 an adjournment was made for the counsel of
both sides to “sort out” a matter (page 10 of the record).

Also on 29/04/97, the counsel agreed to adjourn without giving any reason (page 11
of the record). On 14/6/2000 an adjournment was again agreed on by the parties
(page 29 of the record)

All these adjournments were without cause which can be argued to have been a
clear case of Justice being delayed. However, since both parties agreed in all
cases, then it can be said that there can be said to be no miscarriage of justice seen.
It can also be argued that different magistrates who heard the case on the different
occasions could not properly consider the manner and demeanour of the witnesses.
The chief magistrate who eventually gave the judgment thus did not have the benefit
of properly evaluating the evidence concerning the question of which witness to
believe. He ought to have re-called the witnesses.

Coghlah v. Cumberland (1898) 1 Ch 704. It was held that when a qtn of which
witness is to believed rather than another, and that question turns to the manner and
demeanour, the court of Appeal always is and must be guided by the impression

Civil Procedure Notes 22

www.ugandaonlinelawlibrary.com law teacher ldc

made on the judge who saw the witnesses. Another matter to consider is the issue of
hearing of an uncaused listed matter.

In Dick Kabali v. Rebecca Mawanda & Anor. (unreported) Justice Kibuuka Musoke
held that a matter that is not cause listed cannot be heard and if it is heard, this
should be clearly noted on the record of the proceedings by the presiding judicial
officer. In the instant case, on the 24/2/97 the matter was adjourned to 10/3/97.
However, the matter came on 11/4/97 and nothing on record explains this.

Also on the 26th/4/2000, the matter was adjourned to 14/5/000 but it came on
14/6/00. All these show inconsistencies and grave. Irregularities in the procedure of
the hearing.

ii) As regards the issue of the remedies available, a number of these can be
suggested.

Sect…..of CPA is to the effect that the High Court may call for the record of any court
and if such court appears to have acted in excess of its jurisdiction, illegally or with
material irregularity or injustice. The High court may revise the said record and may
make such order therein as it thinks fit.

Eriazali v. Dodovico (1973)1 ULR 134, court discussed the grounds upon which a
revision can be made by the High court where there is an irregularity on the part of
the subordinate court. That the court will interfere only if it is shown that the
irregularity amounts to an illegality and affects the case.

Civil Procedure Notes 23

www.ugandaonlinelawlibrary.com law teacher ldc

Thus, this can be a cause of action for the appellant to take in the instant case.

Also sect. 204 of MCA provides that an appeal shall lie from the decrees or any part
of the decrees and from the orders of a magistrate court presided over by a chief
magistrate in the exercise of its original civil jurisdiction to the High Court.

In the present case therefore, the defendant who is dissatisfied with the decision of
the chief magistrate court may challenge that decision in the High Court by way of
appeal.

As regards the issue on forum, sect… MCA is to the effect that an appeal shall lie
from the chief magistrates court to the High Court thus, the forum is the High Court.

As regards to the procedure 0.39 r.1 provides that appeals to the High Court shall be
in the form of a memorandum setting forth the grounds of objection to the decree
appealable from and the grounds should be numbered consecutively.

A decree must first be extracted in the present case from the Chief Magistrates
court.

0.39 r.10 provides that court has to send notice of the appeal to the court from
whose decree the appeal is preferred. 0.39 r.11 provides for serving the respondent
with a hearing notice. 0.39 r.12 provides that the notice should declare that if he
does not appear on the day so fixed, the appeal may be heard exparte. As regards
the documents, there should be a decree, a memorandum of Appeal, list of
authorities and a hearing notice, as drawn below.

Civil Procedure Notes 24

www.ugandaonlinelawlibrary.com law teacher ldc

THE REPUBLIC OF UGANDA

CHIEF MAGISTRATES COURT OF KAMPALA

HOLDEN AT MENGO

CIVIL CASE NO.737 OF 1996

DECREE

(Under s…… MCA)

This suit coming on this final disposal before his Worship Opifeni Auguandia in the
presence of both the plaintiff and the defendant and their respective counsel.

It is ordered and DECREED that the defendant do pay to the plaintiff the sum of US
$ 4,500 and general damages of 1 m/= plus costs of the suit.

GIVEN under my hand and seal of this court this 28 day of June 2003.

……………………………………….

REGISTRAR

Civil Procedure Notes 25

www.ugandaonlinelawlibrary.com law teacher ldc

Civil Procedure Notes 26

www.ugandaonlinelawlibrary.com law teacher ldc

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT K’LA

CIVIL APPEAL NO…….OF 2003

(Arising from the judgment of the Chief Magistrates Court of

Kampala holden at Mengo)

ARNOLD OKOT ============================== APPELLANT

VERSUS

BETTY NAMUTEBI ============================ RESPONDENT

MEMORANDUM OF APPEAL

Arnold Okot the above mentioned appellant appeals to the High Court against the
whole of the above decision on the following grounds.

1. The learned trial magistrate erred in law and fact when he failed to properly
evaluate the evidence thus causing to a wrong conclusion.

2. The learned trial magistrate erred in law and fact when he failed to consider the
grave inconsistencies and contradictions in the plaintiff’s evidence.

3. The learned trial magistrate erred in law and fact by not directing himself to the
procedural irregularities on the conduct of the case.

Civil Procedure Notes 27

www.ugandaonlinelawlibrary.com law teacher ldc

WHEREFORE pray as follows.

a) that the appeal be allowed

b) that the judgment for the respondent be set aside.
c) Costs to the suit be provided for

DATED this 28th day of June 2004.

…………………………………….

COUNSEL FOR APPELLANTS

Lodged with the Registrar of the High Court of Uganda at Kampala on the 28th day of
June 2004.

………………………………

REGISTRAR

Drawn & filed by;

Firm A & Co. Advocates

P.O. Box 7117

K’LA

Civil Procedure Notes 28

www.ugandaonlinelawlibrary.com law teacher ldc

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

CIVIL APPEAL NO. 001 OF 2004

(Arising from the judgment of the Chief Magistrates Court of Kampala at Mengo)

ARNOLD OKOT =============================== APPELLANT

VERSUS

NAMUTEBI BETTY =============================== RESPONDENT

HEARING NOTICE

(Under 0.39 r.11 & 12 CPR)

TAKE NOTICE that the hearing of the above appeal has been fixed on the 31st day
of June 2004 at the High Court of Uganda at Kampala at 9.00 O’clock in the
aforenoon or soon thereafter.

TAKE FURTHER NOTICE that if no appearance is made on your behalf on the

above date, the appeal may be heard in your absence.

GIVEN under my hand and seal of this Honourable Court this 28th June 2004.

………………………………….
Civil Procedure Notes 29
www.ugandaonlinelawlibrary.com law teacher ldc

REGISTRAR

To be served on

Respondent

C/o Katwe & Co. Advocates

Plot 97 Bombo Road

Wandegeya

P.O. Box 71

Drawn & filed by

Firm A & Co. Advocates

Civil Procedure Notes 30

4.0 Question on mistake of counsel

Fact:
Advocates for the Defendant though filed Notice of Appeal in the High Court and applied
for proceedings from the High Court they did not copy the letter to the Plaintiffs. They
subsequently filed & Record of Appeal in the Court of appeal 2 months (61 days) later
and served the same on Plaintiff’s lawyers.

Issues to be Resolved:
a) What is the effect of failure to copy the letter demanding proceedings to the
opposite party?
b) Does the above effect the Notice of Appeal already filed and the record of appeal
subsequently filed?
c) What are the remedies open to the Plaintiff/Respondent?
d) What is the relevant procedure/Documents/Form?
e) Assuming that you succeeded in striking out the appeal what would be the
remedy for the Defendant” Relevant Procedure.

Law Applicable:-
a) Need to copy letter demanding proceedings to the opposite party Cf Count of Appeal
Rules Directions, 1996 L.N. 11/96 Rule 8291) Appeal to be file within 60 days after
the date when the Notice of Appeal was lodged.

Rule 82(2) where an application for a copy of the proceedings in the High Court has
been within 30 days of the decision of High Court Certified by the Registrar for prep or
records excluded.

Civil Procedure Notes 31

S.82(3) An appeal not entitled to rely on sub-rule (2) unless his or her application for
copy was in writing and a copy of it was served on the Respondent and the App. Has
retained proof of service.

N.B. Notice of Appeal & Memo are of no legal consequence Cf Rule 83

Cf: Rule 81 Respondent (Plaintiff) is at liberty to apply to have the Notice of Appeal
struck out for failure to comply with and essential step.
- Procedure Does & Form Cf: Rules 42(1) + (2) & (3) N/M & Aff. – Form A 1st
Sched.
- Remedy for Defendant/Applicant to Apply for extension of time within which to file
record of Appeal out of time.

Cf: Rule 4 Court of can extend time upon sufficient reason being shown.

Case Law on Striking Out

Notice of Appeal

1. Mustaq Abdullar Beghani v. Obol Ochola Court of Appeal C.A Appl. No.4 of 1987
2. Hannington Wasswa & Anor. v. Muria Ochola & Othis Supreme Court Mis. Appl.
No.12 of 1988
3. Plaxenda Sembatya v. Tropical Africa Bank Supreme Court Civil Applic. No.6 of
1087
4. The Executive of the estate of the late Christine Namatovu Tebajjukira and Ono
v. Noel
5. Grace Shalita Stananel (1992 – 1993) HCB 85 (Supreme Court)
6. Simon Baryawo v. A.G. of Ug. (C.A.) (1979) HCB 214
7. KCC v. National Pharmacy Ltd (1979) HCB 215 (C.A.)

Civil Procedure Notes 32

Civil Procedure Notes 33
5.0 Question on striking out WSD

Facts. The Respondent was the Plaintiff in the trial Court. The Appellant was one of the
Defendants. The Respondent carried on clearing business and sale of cement. The
appellant and another won a contract to supply cement to the NURP: they did not have
funds. They sub-contracted the Respondent to supply the cement which the
Respondent did. The Appellant issued post dated cheques to Respondent but same
bounced upon presentation. The Appellant and his colleague were prosecuted. The
Respondent institute a suit against the Appellant and his colleague for recovery of
Shs.147 SAP App. Denied liability but his colleague admitted. The Applicant’s count
applied to have the Respondent’s colleagues WSD struck out which was done. The
matter was tried and the appellant lost the sum and was ordered to pay Shs.147/= as
special damages and Shs.15M/= as general damages & costs. The Appellant appealed
to Court to Appeal the appeal was dismissed. The Applicant is dissatisfied with the
Court of Appeal verdict and wants a remedy.

A. Issues to be resolve:

i) What remedies are open to the App. Can he appeal?

ii) What are the merits (possible grounds of appeal)?
iii) What is the procedure & Forum?
iv) What are the relevant documents?

Law Applicable:
- Cf: Judicature Statute 13/96 Cr. S.7(1)
- Appeal creature of Statute
- Cf: Makula Int. Case (Supra)

B. Merits of Appeal:
Civil Procedure Notes 34
- Striking out WSD instead of entering judgment on admission
- Existence of Partnership Relationship between the parties & S.18 Partnership
- Evaluation of Evidence
- Propriety of Plaintiffs pleadings can an unpleaded cause of action become an
issue? – prejudice to app.??
- Role of pleadings – Departure
- Interference with awards
- Role of the second Appellate Court
- Sound basis before 2nd App. Court can tamper with dec. of 1st App. Court (See
Rule 29(1) Supreme Court Rules).

Case Law:
1. Francis Sembuya v. All Ports Services (U) Ltd. Supreme Court Civil Appeal No.6
of 1999 (on all Fours with the above problem)
2. Bank of Uganda v. Transroad Ltd Supreme Court Civil Appeal No.3 of 1997.
3. Uganda v. Capailair Charter Ltd (1956)23 EACA 139 (Object of pleadings –
decisions made by a court on basis of un-pleaded issues)
4. Patel v. Patidar (1944) 11 EALA 1
5. Obongo v. Muncipal Council of Kisumu (1971) EA 91 at interference of
App. Court with awards wrong principle of law or remedy high or very small
erroneous estimate.
6. Millangos v. George Frank X Files (1975)Q.B. 487
7. Millangos (No. 2 1977) Q.B. 489

Procedure
- Lodgement of an App. from C.A to sup. Court (See Rule 71(1) & (12) Sup. Court
Rules.
- Extraction of decree in appeal by successful party
- Lodgement of N.O.A Cr. Rule 71(1) + (2) Sup. Court rules
Civil Procedure Notes 35
- Contents of N.O.A. Cr. 71(3) Sup. Court Rules
- Form of Notice Cf. Rules 71(5) Form V 1st Schedule
- Reg. of Court of appeal sends copy to sup. Court (Cf. Rule 72)
- Service of Notice of Appeal to be effected on persons affected within 7 days after
lodging NOA (Cf Rules 73 (1))
- Upon being served with N.O.A party to file address for service (Cf Rule 75(a)
within 14 days after service within 14 days effect service on App. (See Rule 75(b)
- Format of add for service Cf. Rule 75(2) Form E 1st Sched.
- Institution of Appeal proper within 60 days of lodgment of Notice of Appeal – file
a) Memo
b) Record of App.
c) The prescribed fee
d) Security for the costs of appea. (See Rule 78(1)

N.B. If the record is not ready to the registry for a copy within 30 days of filing Notice
of Appeal and give a copy to the other party (Cf.78(2) & (3).
- Contents of Memo of App. Cf. Rule 81
- Contents of Record of Appeal Cf. Rule 82
- Content of Record.

Cf: 82(2)
a) index
b) Stat of address
c) Order for leave, if any
d) Memo of App.
e) Record of Proceedings
f) Order of Judgment
g) Notice of Appeal

Civil Procedure Notes 36

h) In case of a 3rd Appeal the Certificate of the Court of Appeal that a point or points
of law of great public or general importance arise.
- service of memo & record of Appeal Cf. Rules 83, 84 & 85
- Notice of Cross App. Cf. Rule 86(1)
- Service – Rule 88
- Presentation of Arguments
CF. Rule 94(1)
- Appearance at hearing and procedure on the appearance Cf Rule 95(1) & (2)
- Arguments are hearing Cf Rule 97
- Fees payable Cf 2nd Sched. To the Rules
- Need to file list of authorities in advance Rule 26(1)
- Order of address (Cf Rule 27)
- Appeals to be heard to open contract Rules & Kampala Rule 28

Corum for Supreme Court:

- Cf 2nd Stat & Court
- Judges for hearing Appeal

Relevant Documents:
- Decree in Appeal
- Notice of Appeal
- Letter Requesting Proceedings
- Memo of Appeal
- Record of Proceedings
- Certificate of Correctness etc

Civil Procedure Notes 37

6.0 Question on Counsel failing to attend court

Facts: Judgement was passed against the Def. The Defendant’s lawyers failed to attend
court when judgment was delivered due to inaccessibility to their chambers later the
Defendant withdrew instructions from them and instructed others.

Issues to be resolved:
i) Whether there are sufficient reasons for the court to extend time within which to
appeal to Court of Appeal.
i) What is the procedure for application? Relevant documents and forum?
ii) What would happen if the Defendant’s new lawyers simply filed Notice of Appeal
without first seeking and obtain leave of court?
iii) What is the procedure/relevant documents for stricking out a Notice of Appeal
filed out of time and without leave of Court?

Facts: Judgment was entered against the Defendant. The Defendant filed Notice of
Appeal in time. Execution Proceedings have ensured. The Defendant’s/Appellant’s
properties worth four much more than the decretal amount have been attached and
have been advertised for sale in the near future.

Issue to be resolved:
i) Whether the execution can be stayed pending the hearing of the
Defendant’s/appellant’s Appeal.
ii) Whether the Appellant’s appeal is meritorious
iii) What is the relevant procedure/documents/forum?

Law Applicable:

Civil Procedure Notes 38

a) 1. Need to copy letter demanding proceedings to the opposite party
Cf: Court of Appeal Rules Directions, 1996 Legal Notice no. 11 of 1996 (enacted under
section 51(2)(b) of the Judicature Statute No.13 of 1996)

Rule 82(1): Appeal to be instituted within 60 days after the date when the notice of
appeal was lodged.
S.82(2): Where an application for a copy of the proceedings in the High Court has been
within 30 days of the dec. of High Court time certified by Reg. for preparation of record
excluded.

S.82(3) An app not entitled to rely on sub-rule(2) unless ha or her application for cops
was in writing and a copy of it was served on the Respondent and the App. has retained
proof of service.

Cf: Rule 81: Respondent as at liberty to apply to have the Notice of Appeal and out
for failure to comply with essential step.

iv) procedure, Documents + Forum

Cf. Rules 42(1) & (2) and 43 Notice of Motion and Affidavit – Form A 1st
Schedule.

v) Remedy for Defendant/Appellant Apply for extension to time within which to file
record of appeal out of time.

Cf. Rule 4: Court of Appeal can extend time upon sufficient reason being shown

Procedure: Rules 42(1) & (2) and 43

Case Law:

Civil Procedure Notes 39

1. Delia Almeida v. Dr. Carmo Almeida Supreme Court Civil Appl. No.15/90
2. Att:-Gen. v. N.M. Hieda & Anor. S.C.C.A. No. 5/88 (1992) IV Kalt 84
Inability to take a particular step
3. Shiv Construction v. Endesha Enterprises S.C.C.A No. 15/192. Delay of counsel
4. Florence Nabatanzi v. Binsobedde (Supreme Court C. appl. No. 6 of 1987
(1992)Iv Kalr 106
Sufficient cause depends on the circumstances of each case
5. Grindlays Bank (U) Ltd v. Katende & Bros. (1980) HCB 10 C.A No. 1 of 1980
- Concurrent jurisdiction of both high Court and Court of Appeal.
b) Extension of time (as above)
- After leave for extension of time has been granted lodge. Notice of Appeal as
per Rule 75.
- Apply for a record of proceedings and copy letter to the Respondent Cf. Rule 82
(2) and (3)
- Comply with Rule 82(1) subsequently
- Procedure and documents (as above)

c) Stay of Execution

Law Applicable
Rule 5(2)(b) Court empowered to stay execution of much terms just
- Consider
- Application for stay in High Court Cf. S.101 CPA & 0.48 r. CPR and Non
Applicability of 0.19 r.26 CPR

Case Law:
1. Mugenyi & Co. v. N.I.C.C.A. No. 13/84 – Court of Appeal
Concurrent jurisdiction for stay

Civil Procedure Notes 40

2. Lawrence Musutwa Kyazze –vs- Eunice Busigye C.Applic No. 18/1990
Concurrent jurisdiction for stay
3. Edward Bamugye v. L.A.U.B HCCS no. 78/92
Inherent powers of High Court to stay

4. Francis Nansio Micah v. Nuwa Walakira Misc. Civil Appl.

No.9/90 (1992)4 Kalr 62
Concurrent jurisdiction

5. Gulam Hussein Habib Virani & Anor. v. Nicholas Roussos

Admin. H.C.C.S No. 360/82
Non applicability of 0.19 r.26 and 89 CPR

Procedure:
Cr. Rule 42 By N/M and Aff.

Rule 43
Forum: High Court and Court of Appeal – Concurrent jurisdiction

Civil Procedure Notes 41

7.0 Question on filing notice after extraction of warrant

PART IV

Facts Judgment was entered against the defence. The def filed a notice of appeal in
time. However, unknown to him, the plaintiff had applied for execution and warrant of
attachment and sale was issued and the defendant’s properties worth four times much
more than the decretal sum have been attached and advertised for sale. Advise the
def. On the appropriate cause of action.

Legal Issues

1. Whether the defendant has any remedial/whether execution can be stayed pending
the hearing of the def’s appeal.

2. Whether the def’s appeal is meritious

3. What is the relevant procedure, form and documents.

Law applicable

- C.O.A. rules Directions L.N. 11/96

- Civil Procedure Act Cap. 71

- CPR 65-3

Resolution

Stay of execution

Rule 5(2)(b) C.O.A. Rules in the institution of an appeal shall not operate to suspend
any sentence or stay execution but the court may

Civil Procedure Notes 42

(b) in any civil proceedings, where a notice of appeal has been lodged in accordance
with r.75 order the stay of execution on such terms as the court may think fit.

Rule 41(1) write it out.

According to s.98 CPA the court has inherent powers to stay execution.

0.19 r.26 CPR applies where there is a pending suit in the same court. An appeal
pending in the higher court against the earlier decision of the court is not a suit pending
in that court and therefore execution cant be stayed under 0.19 r.26 CPR.

According to Mugenyi & Co. v. NIC C.A 13/84. It was held that an application for stay of
execution may be made to the high court which passed the decree or the C.O. Appeal
which have concurrent jurisdn.

PROCEDURE

Apply to High Court under sect.98 CPA

0.48 r.1 CPR by Notice of Motion affidavit

Civil Procedure Notes 43

 THE REP. OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

MISC. APPLICATION NO.13 OF 2000

Zzimwe Enterprises Ltd ======================= Applicant

Versus

Hellen Opio ================================= Respondent

NOTICE OF MOTION

(Under sect. 98 CPA 0.48 r.1 CPR)

TAKE NOTICE that this Hon. Court shall be moved on the 4th day of Sept. 2000 at 9.00
O’clock in the forenoon or soon thereafter as counsel for the applicant shall be heard on
an application for orders that:

1. Execution be stayed pending the of the applicant’s appeal

2. Costs of his application be met by the applicant.

TAKE FURTHER NOTICE that this application is supported by the affidavit of JOHN
KIWANUKA and upon other grounds to be adduced at the hearing hereof but briefly are
as follows:-

a) that the applicant appeal pending in the higher court has a high probability of
success.
Civil Procedure Notes 44
 b) That irreparable damage is likely to be suffered by the applicant if the properties
are attached.
c) That the attached properties are four times much more than the decretal amount.

DATED this 27th day of August 2000.

……………………………………

COUNSEL FOR APPLICANT

GIVEN under my hand and the seal of this court this 27th day of August 2000.

………………………………

REGISTRAR

Drawn & filed by

Firm A & Co. Advocates

P.O. Box 7117

Civil Procedure Notes 45

 (TITLE AS ABOVE)

AFFIDAVIT IN SUPPORT OF APPLICATION

I. JOHN KIWANUKA of c/o Firm A & Co. Advocates P.O. Box 7117, Kampala do hereby
solemnly make oath and state as follows:-

1. That I am a male adult Ugandan of soundmind and the applicant’s corporate

secretary and I swear this affidavit in that behalf.

2. That on the 28th day of July 2000 I instructed our advocates to lodge an appeal after
being dissatisfied with the judgment in HCCS No.10/95

3. That a notice of appeal was lodged but unknown to us, the Resp. applied for
execution on the 27th July 2000 and a warrant of attachment and sale had been issued.

4. That the auctioneers proceeded to attach our property which is unfortunately worth
four times much more than the decretal sum.

5. That the properties have been advertised for sale and sale is due on 12th Sep.2000.

6. That if the above properties are sold, the applicant will suffer irreparable damage not
comperatable in monetary terms.

7. That I verily believe that the appeal pending has high probability of success.

Civil Procedure Notes 46

8. That whatever I have hereinabove sworn is true and correct to the best of my
knowledge and belief.

SWORN at Kampala by the said JOHN KIWANUKA this 1st day of Sept. 2000.

……………………………..

DEPONENT

Before me ………………………………

COMMISSIONER FOR OATHS

Drawn & filed by

Firm A & Co. Advocates

P.O. Box 7117

K’LA

N.B. Since the successful party had already applied for execution and advertised the
property in qtn, it is prudent to seek the indulgence of the Registrar of the court to
cancel out the warrant of attachment and then apply for stay of execution using the
normal procedure otherwise by the time the N.O.M. is heard, execution and sale would
have been completed.

Civil Procedure Notes 47