CASES COMPILED BY S.

TREVOR CJ

1.Sudhir Ruparelia & Ors v Sissa Club Ltd & Ors, High Court Miscellaneous
Application No. 968 of 2004 [Arising out of High Court Civil Suit No. 577 of 2003]
Order 1 Rule 10(2) of the CPRs
Principle: Despite the provisions of Order 1 Rule 10(2) of the CPRs, in a suit of tort, a
defendant cannot be added to a suit, even if willing, in the face of opposition from the
plaintiff. A plaintiff being the dominis litis cannot be compelled to sue a person when
they do not wish to sue.

Relevant Facts: The applicants were the defendants in the main suit. They were
applying to have two other persons added as defendants in the main suit since the two
were allegedly managing the business, the subject matter of the suit. The applicants
based their averments on Order 1 Rule 10(2) that allows for the court to add parties on
application.

2. Auto Garage v Motokov (No.3) 1971 EA 514

Order 6 Rule 19-20 of the CPRs (Amendment of Pleadings)

Principle: A cause of action is deemed disclosed when a plaintiff shows three things:
that they enjoyed a right, that that right has been violated, that the defendant is liable for
the violation. If any of the three elements is missing, then no cause of action has been
shown. Where a cause of action is shown, any omission or defect may be amended. If
not shown, no amendment is permissible.

Relevant Facts: This was a suit for a sum on a dishonored bill of exchange. A
preliminary objection was raised that the plaintiff had no rights on the bill since they
were neither the payee nor the holder in due course (the payee being the plaintiff‘s
bank). The plaintiff then sought to amend their plaint so as to abandon the claim on the
bill and in the alternative sue for payment of the sum on the bill, being the balance due
and owing to the plaintiff for goods sold and delivered by the plaintiff to the defendant.
However, the defendant opposed this application on the ground that the original plaint
disclosed no cause of action and can therefore not be amended and that any
amendment would have the effect of introducing a new cause of action.

3. Uganda General Trading Co Ltd v Jinja Cash Stores Ltd [1965] 1 EA 469
Order 1 Rule 3 of the CPRs (joinder/misjoinder of parties)

Principle: Defendants may only be joined if two conditions are met: A plaintiff‘s right to
relief arises out of the same act or transaction; If separate suits were brought, a
common question of law or fact would arise.

Relevant Facts: A plaintiff joined a creditor and a third party, to whom the creditor had
sold three lorries. Defendant argued that proceedings against the third party buyer
arose out of a different transaction and enlivened different questions of law and fact.
Held that it was a proper joinder and to the extent that the plaintiff was still owed, the
sale of the lorries was relevant to the dealings between plaintiff and defendant.

John Babisigira & Anor v Kampala Club Ltd HCCS No. 318/2017 – Civil Division,
(Unreported). [could not be found at the exercise of reasonable diligence]

4. Desai v Warsaw (1967) EA 351

Section 4 & 11 of the Civil Procedure Act on jurisdiction
The respondent had successfully challenged the jurisdiction of court hence the appeal.
Held: no court can confer jurisdiction upon itself, it must be conferred by a legislative
body with power to do so. Jurisdiction is a matter of fact and not opinion. Judgment
passed by a court with no jurisdiction goes beyond any error, omission or irregularity,
but renders the entire proceedings a nullity.

5. Nakito & Bros v Katamba (1983) HCB 70

Section 2(x) of the Civil Procedure Act
Application to restrain the defendant from selling a lorry which was the subject matter of
a suit. Defendant raised a preliminary objection that the notice of motion was a nullity.
Held; Notice of motion falls within the meaning of suit as used and defined in Section 2
of the CPA, all proceedings commenced in a manner prescribed.
The notice of motion was neither signed by the judge or officer appointed by him, or
sealed with the court seal and did not comply with the procedure in the rules. The
application was null.

6. Gulu Municipal Council v Nyeko Gabriel & Ors HCCS No 77/1996

Section 2 (1) of the Civil procedure & Limitations (miscellaneous Provisions) Act
and Regulation 17 (2) of the Government proceeding (civil procedure)
It is a mandatory requirement to serve a statutory notice 45 days prior. [in light of KCCA
V Kabandize and 20 others SCCA No. 013/2014]……..remember during the
submission of the Head civil she made it clear that there is no legislation on record as
far as the decision in Kabandize

7. NAGAWA AGNES & Anor v SEGAWA SAMUEL & ORS HCCS No 27 of 2017
Order 7 Rule 11(a) & (e) CPR on rejection of plaint if it does not disclose a cause
of action, Order 6 Rule 3 on plaints that require particulars
Suit for an order of cancellation of a registered certificate on grounds of fraud.
Held; Order 7 rule 11 (e) CPR, it is a mandatory requirement that a plaint should
contain particulars constituting the cause of action and when it arose.
Only the plaint can be looked at in determining whether there is a reasonable cause of
action. This is mandatory; a plaint that does not disclose a cause of action will be
rejected.Order 6 Rule 3, cases of misrepresentation, fraud, breach of trust, willful
default, negligence or other causes of action where particulars may be necessary, the
particulars with dates shall be stated in the pleadings. This is mandatory, and failure to
plead these particulars is a fundamental defect, not an irregularity curable by evidence
or otherwise.
8. OBED TASHOBYA V DFCU HCT-00-CC-CS 742 OF 2004

Principle: Speaks to dishonor of a chequeThe appellant presented a cheque of

150,000 dollars. He was running a shilling account in the respondent bank and was
meant to receive 150,000 dollars from citi-bank. He was advised to open a dollar
account to which this money was credited. He withdrew the money leaving only
1000 dollars on the account. He was however informed by the general manager and
head operations of the respondent bank that the cheque had been dishonored through
a telex message to them. Hence the respondents sought to recover the money. The
plaintiff repaid over 50,000 dollars back to the account. However he was asked to sign
security documents. The account was later debited and they set off the balances and
denied the plaintiff access to the account hence this suit.

Issue: whether the suit cheque was dishonored, if yes, whether the prerequisite steps
were taken upon dishonor so as to entitle the defendant to a right of recourse against
the plaintiff on the bill.

Held: In cases of a dishonoured cheque, the usual recourse is to return the

dishonoured bill to the customer, however where it is not available like in this case,
other evidence may be relied upon as proof and/or notice of dishonour. In this case, the
telex message and the personal communications of the dishonour to the plaintiff by the
defendant were sufficient evidence that the suit cheque was dishonoured. The suit
cheque was not a bearer instrument the defendant bank was negotiating for itself. All
that is required of a collecting bank in these circumstances is to give notice of dishonour
to its client if the cheque is dishonored.

9. KABANDIZE & 20 OTHERS VS KCCA NO.28 OF 2011

Principle: Speaks to the requirement of statutory demand and its nullification
The applicant challenged 2(1) (b) of the Civil Procedure and Limitations (Miscellaneous
Provisions Act (Cap 72) which required litigants to first issue and serve a 45 days
mandatory notice upon Government and scheduled corporations yet that Government
and all scheduled corporations are under no obligation to serve statutory notice of
intention to sue to intended defendants.

Held: While construing Section 2 of The Civil Procedure and Limitations (Miscellaneous
Provisions Act), Courts of law must therefore take into account the provisions of Articles
274 and Article 20 of the Constitution of Uganda. The reading of Article 20(1) and Article
274 of the Constitution together would require Section 2 in CAP 72 to be construed with
such modifications, adaptations, qualifications and exceptions as is necessary to bring it
into conformity with the Constitution In view of Article 21(1) of the Constitution, a law
cannot impose a condition on one party and exempt the other from the same and still be
in conformity with Article 21(1). That the requirement to serve a statutory notice of
intention to sue against the Government, a local authority or a scheduled corporation is
no longer a mandatory requirement in view of Articles 274 and 20(1) of the Constitution,
and therefore non compliance with that impugned Section 2 does not render a suit
subsequently filed incompetent

10. JOY KAINGANA V DOUBOU BOUBOU [1986] HCB 59

Principle: Speaks to defective affidavits. The affidavit accompanying the application

was sworn by the husband on behalf of the wife.

Issue: The objection was that the husband, not being a party to the suit, could not
swear such an affidavit when he was not a recognized agent and had not filed papers
which authorized him to act in that representative capacity.

Held: A person is competent to swear an affidavit on matters of fact he knows about or

on information he receives and believes. Whereas the deponent in this application
claimed that he was fully acquainted with the facts deposed to nevertheless he swore
the affidavit in a representative capacity. There was no authority given to him by the
defendant to qualify him to act on his behalf either as his advocate or a holder of power
of attorney or duly authorized. The affidavit was therefore incompetent and defective.‖
Where an application is grounded on evidence by affidavit, a copy of that affidavit
intended to be used must be served with the action. In such a case, the affidavit
becomes a part of the application. The Notice of Motion cannot on its own be a
complete application without the affidavit. Therefore in the instant case the Notice of
Motion alone was not enough.

11. GENERAL PARTS (U) LTD AND ANOR V NPART SCCA NO. 09/2005

Principle: Institution of suits, Limitation of suits, Res Judicata, Pledged property

This was a matter seeking reversal of the decision the court of appeal ordering for the
foreclosure of the mortgaged properties. The respondent sued as an assignee of a non
performing asset in form of a debt of 2 billion that the appellant owed to Uganda
Commercial Bank. It claimed that the debt was secured by, inter alia, equitable
mortgages over the appellants‘ plots of land hereinafter collectively referred to as ―the
mortgaged property‖, and moved the Tribunal to grant orders against the appellants as
mortgagees. Whereas some properties belong to the first appellant, most of the
properties belong to the second appellant. They therefore seek reversal of the same.
Various matters had been lodged in various forums in a bid to recover from the
appellants.
Issues
1. the institution of the suit occasioned a miscarriage of justice;
2. the suit was time-barred;
3. the subject matter was res judicata
Held:
Firstly, it is trite that in civil matters the only modes of instituting suits are by plaint,
originating summons and petition. A Notice of Motion is not an alternative mode of
instituting any type of suit. Recourse to Notice of Motion under O.48 r.1 of the CPR in
the instant case on the mistaken ground that the Mortgage Act, which provides for the
right to apply for foreclosure, does not specify the form of exercising that right was
wrong. The Mortgage Act is not concerned with rules of procedure. Proceedings arising
from it are governed by the CPR and what was applicable in this case was O.34 r.3A
not O.48 r.1. Therefore the institution of this suit through the use of a notice of motion
was erroneous.

Secondly, it is also clear from the provisions of sections 5 and 18(4) of the Limitation
Act, that the limitation period for a cause of action in land is twelve years. The suit was
filed on 25th February 2003, but neither party was clear on the date when the limitation
period started to run. Since the action started in or about July 1992, the suit was not
time barred because its time was still valid.

Thirdly, the issue of res judicata revolves on provisions of sections 6 and 7 of the Civil
Procedure Act. Section 6 prohibits a court from trying a suit in which the matter in issue
is also directly and substantially in issue in a previously instituted suit that is pending in
a competent court between the same parties. Section 7 similarly prohibits a court from
trying a suit in which the matter directly and substantially in issue was also directly and
substantially in issue between the same parties, in a former suit that was heard and
finally decided by a competent court, i.e. a matter that was adjudicated upon (res
judicata). While it is correct to say that both suits indirectly related to the indebtedness
of the 1st appellant to the respondent, the substantial issues for determination in the two
suits were different
.
Lastly, Section 129 of the Registration of Titles Act provides for the creation of an
equitable mortgage by deposit of a title certificate. It provides that ―notwithstanding
anything in this Act, an equitable mortgage of land may be made by deposit by the
registered proprietor of his or her certificate of title with intent to create a security
thereon whether accompanied or not by a note or memorandum of subject to the
provisions hereinafter contained.‖ Therefore, the court held that The 2nd appellant
cannot in law be permitted to claim that he deposited the certificates as Managing
Director but not as the registered proprietor. Nor does it matter that he was not the
borrower. Clearly, for purposes of section 129 of the Registration of Titles Act, Haruna
Semakula, the registered proprietor deposited the title certificates in question with intent
to create security thereon in respect of the 1st appellant‘s loan from UCB.

12. ATTORNEY GENERAL VS DAVID TINYEFUZA SCCA NO.1/1997

Issues
1. Whether a preliminary point of law which is raised and its determination could
dispose of the case, ought to be determined before embarking on the substantive case?
Article 273 of the Constitution has saved the existing law and rules which must be
construed with such modifications, adaptations, qualifications and exceptions as may be
necessary to bring them into conformity with the Constitution. The rules of Court must
be applied bearing in mind the peculiar circumstances of each case. Therefore Article
126(2)(e) of the Constitution does not give license to Courts to ignore rules of procedure
and the law There was no ruling on the objection.
I think in some cases ruling on objection may depend on the evidence that may be
adduced during the Course of the hearing.

2. Whether there was a cause of action and if so whether the constitutional court had
the jurisdiction to deal with the case before it in its original jurisdiction?
Mulla on the Code of Civil Procedure, volume 1 14th Edition at page 206 defines cause
of action:- "As every fact that would be necessary for the plaintiff to prove if traversed in
order to support his right to the judgment of the Court. In other words, it is a bundle of
facts which, taken with the law applicable to them, gives the plaintiff a right to a relief
against the defendant. It must include some act done by the defendant since in the
absence of such an act no cause of action can possibly accrue.

13. SALOME MUKASA VS YOSEFU BUKYA (1996) EA 433

A preliminary objection was brought on behalf of the plaintiff that the application was
made by chamber summons under O 9 r 24 CPR for setting aside an ex parte judgment
was incompetent and misconceived because under O 48 r 1, the application should
have been brought by notice of motion in open court.

Held: The application is not properly brought before court as the applicant failed to
comply with the provisions of O 48 r1 of the rules. The defect was a serious one, it goes
to the very root of the application and there was no competent application.
For Provisions 101 of the Civil Procedure Ordinance to treat the application as properly
before it for the purpose of meeting justice to be invoked the matter or proceedings
concerned must have been brought before court properly in terms of procedure
prescribed by the rules of this court.

14. Kasirye Byaruhanga & Co. Advocates v Uganda Development Bank SCCA No.
02/1997

The appellant had complied with all the rules except serving the Letter Requesting for
the Record of Proceedings on the respondent. Counsel for the appellant had even
conceded to the lack of service of the written request but in support of his submissions,
he sought to rely on Article 126 (2) (e) contending that that was a mere technicality and
no injustice had been occasioned to the respondent.

Held: The Supreme Court proceeded to uphold the preliminary objection and to quote
Article 126 (2) (e), underlining the words ―subject to the law‖. It notably said:
―We have underlined the words ‗subject to the law‘. This means that clause (2) is no
license for ignoring existing law. A litigant who relies on the provisions of Article 126(2)
(e) must satisfy the court circumstances of the particular case before court; it was not
desirable to pay undue regard to a relevant technicality. Article 126 (2) (e) is not a
magic wand in the hands of defaulting litigants.‖
15. Eddie Rodrigues v The British High Commission SCCA No. 8/1987

Principle: Suing a wrong party

Legal persons may be individuals, corporations, corporation soles or companies. Firms
may sue or be sued under certain circumstances. The respondent is neither of these
and therefore is not a legal person. Therefore the respondent cannot be sued because it
is not a juridical person nor does it have any other legal capacity enabling it to be sued.
Since the respondent is a branch and therefore an emanation of the Government of the
United Kingdom on whose behalf it is holding the suit property, the action should have
been brought against that Government and not the respondent. The action against the
respondent was misconceived and not maintainable. It was rightly dismissed.

16. Nalongo Nalwoga Nakazi v Salongo Kesi Bagalaliwo HCCA No. 84 of 2012

Principle: Departure from pleadings

Order 6 rule 1(1) of the CPR states that ‗every pleading shall contain a brief statement
of the material facts on which the party pleading relies for a claim or defence, as the
case may be.‘ From the foregoing, it seems to me that departure from the cause of
action outlined in pleadings would constitute a departure from the pleadings and not
mere irregularity in so far as it negates the opposite party‘s right to have fair notice and
full information of the case against him or her. In the instant case the cause of action
was trespass to land. That cause of action was premised on the respondent‘s interest in
the land. In my considered view, the circumstances underlying an alleged interest in
land would constitute ‗material facts on which the party pleading relies for a claim or
defence‘ as prescribed in Order 6 rule 1(1) of the CPR. In the instant case the alleged
purchase of the disputed kibanja goes to proof of ownership of the kibanja and,
therefore, would have been a material fact that should have been included in the plaint
as prescribed in that rule.
More importantly, it seems to me that an interest in land grounded in bonafide
occupancy as was pleaded by the respondent herein raises entirely different legal
issues than one premised on a legal purchase of such land. The purchase of land, if
proven, raises connotations of lawful occupancy while bonafide occupancy entails an
entirely different set of parameters as set out in Section 29(2) of the Land Act. I
therefore find that the respondent‘s evidence on the alleged purchase of the suit land
constituted a departure from his pleadings. Consequently, this court shall not consider it
as it determines the present question of the respective parties‘ interest in the suit land
and trespass.

17. Edward Bamugye v Tropical Bank Ltd CACA No.48/2007

Principle: Absence of a power of Attorney on the record
The absence of that power of attorney becomes fatal to the respondent because it
cannot properly be said to have received the suit property as security without
establishing the authority of the mortgagor company in relation to the suit property
which was registered in the names of the appellant.
Having found that the absence of the power of attorney relating to the suit property is
fatal, court found that a legal mortgage was not created in the suit property by the
appellant to the respondent.

18. Wasswa v Ochola SCCA No. 05/1990

Principle: Service & requirement of supporting affidavits.

There is no room for service on Sunday Order 51 r. 2, such alleged service was void.
The rules concerning service on a Saturday after 1 p.m on Saturday is deemed to be
service on Monday O.51 r. 9. There is no rule requiring an applicant to state on the face
of his motion that it is grounded on an affidavit supporting the motion. It is wise to do so.
Failure to serve affidavits to be used in support of the motion is a fault, as will be seen
from Order 48 Rule 3 (now Order 52 r.3).

19. Interfreight forwarders (U) Ltd v East African Development Bank C.A No. 33 of
1992
This was an appeal from the judgement of the High Court of Uganda allowing a claim by
the Respondent against the Appellant for the price of a new motor car that had been
damaged beyond repair in a road accident while being transported from Mombasa to
Kampala. The claim was founded on an alleged breach of contract and on negligence
on the part of the Appellant.

Principles
Pleadings: Order 6 Rule 1 of the Civil Procedure Rules provides that: — ―Every pleading
shall contain, and contain only, a statement on a precise form of the material facts on
which the party pleading relies for claim or defence as the case may be, but not
evidence by which they are to be proved…..‖
Rule 2: It provides that in all cases in which particulars are necessary such particulars
shall be given. Pleadings 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. They serve the double purpose 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 have to determine at the trial.
A party is expected and is bound to prove the case as alleged by him and as covered in
the issues framed.
A party will not be allowed to succeed on a case not so set up by him and 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 the pleadings.
Assessment of Damages: The general principle of the law is that in cases of destruction
of goods, the normal measure of damages is taken to be the market value of the goods
destroyed at the time and place to be the market value of destruction.
20. Tororo Cement Co. Ltd v Frokina International Ltd SCCA No. 2 of 2001

This was a second appeal from the decision of the Court of Appeal confirming the ruling
by the High Court, on an interlocutory point of objection, that the plaint disclosed a
cause of action.

Principles
Cause of Action in a plaint: Order 7, rule 7(a) of the Civil Procedure Rules provides that
the plaint shall be rejected - "(a) where it does not disclose a cause of action."
A cause of action means every fact which is material to be proved to enable the plaintiff
to succeed or every fact which, if denied, the plaintiff must prove in order to obtain
judgement. It is now well established that a plaint has disclosed a cause of contain even
though it omits some fact which the rules require it to contain and which must be
pleaded before the plaintiff can succeed in the suit.

What is important in considering whether a cause of action is revealed by the pleadings

are the questions; whether a right exists, whether it has been violated and the
defendant is liable as stated by the Court of Appeal for East Africa in Auto Garage -vs-
Motokov (No. 3) (1971) EA. 514.

Any defect or omission can be put right by amendment. The trial judge has discretion to
allow such an amendment. Where no cause of action is disclosed no amendment can
be allowed because the plaint is a nullity.
Pleading particulars of Negligence: 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.
Scheduling Conference: Under the new Order XB of the CP Rules, the holding of a
scheduling conference in civil cases is mandatory. The principal objective of the
scheduling conference is to enable the court to assist parties to dispose of cases
expeditiously by sorting out points of agreement and disagreement or assessing the
possibility of mediation, arbitration and other forms of settling the suit.
After a scheduling Conference, and where it is necessary, interlocutory applications can
then be made and be disposed of before the suit is fixed for hearing. This enables
systemic progress of the suit.

21. Erinesti Ochieng v Obedo Nyambito C.A no. 92 of 1973

The trial court relied on particulars of an offence in criminal case no. MMM/14/68 of the
facts constituting the cause of action since there was never a filed plaint before the trial
court. Held: Proceedings in a criminal case cannot be used to prove cause of action in a
civil case.
22. Simba Motors Ltd v John Sentongo & Salama Enterprises Ltd HCT-CC-CS-
0733-2000 The plaintiff sued the defendants for a sum of shs. 9,100,000with interest
and costs of the suit.

Principle: Notice of Dishonor: Section 47 of the Bills of Exchange Act cap 68 - where a
cheque has been dishonoured by non-payment, notice of dishonour must be given to
the drawer & each endorser, any drawer or endorser to whom such notice is not given is
discharged. Section 48 of the Bills of Exchange Act - the notice may be given as soon
as the cheque is dishonoured and must be given within a reasonable time.
Section 49 of the Bills of Exchange Act - Delay in giving notice is excused where the
delay is caused by circumstances beyond the control of the party giving notice and the
control of the party giving notice and not imputable by his default misconduct or
negligence. Failure to give notice in time leads to the bar of the suit.

23. RWAKASORO V AG [1982] HCB 40

The plaintiff filed a suit against the AG under the Law Reform Miscellaneous Provisions
Act, Death a cause of action, wherein he intended to make his case that the deceased
was working on a government project and as such the state was liable. However, his
plaint did not have the relevant info. In dismissing the suit, it was held inter alia:
The period prescribed under the Act [Civil Procedure and Limitation (Misc Prov.) Act,
sec 2], is intended for the purpose that the government may investigate the claim and if
possible settle it out of court. Unless sufficient facts are disclosed by the notice, the
government may not know what the claim is about. It is good practice for advocates to
annex a copy of the intended plaint with the statutory notice so that all relevant and
necessary facts are known to the person to whom the notice is given.

RELEVANCE: Statutory Notice (above named Act), compare with Kabandize and
Others v KCC. KYANGWA V PALLISA TOWN COUNCIL (HCMA 19/2000)
Principle: if one has witnesses and authorities that he or she intends to rely on but
does not list them, it is at his or her peril as he or she will have nothing to rely on.

RELEVANCE: Order 6, rule 2 on list of documents and authorities; Compare with DFCU
Leasing v Nasolo Farida (HCMA 74/2007) that the question of ambushing cannot
arise provided the documents were attached even if they were not mentioned or listed.

24. RWABUGANDE GODFREY V BITAMISI NAMUDDU (CA 23/2009)

The appellant had been evicted from his land vide District Land Tribunal and High Court
orders to the same. His name had as well been removed from the land title and that of
the respondent entered thereto. However, on appeal, it was established that the
respondent had not followed the proper rules of service during the initial stages of the
suit. Summons had been served out of time.

PRINCIPLE: Rule 62 of the District Land Tribunal rules required the Tribunal to apply
the CPR. Service of summons therefore in District Land Tribunals in respect of all
claims was required to comply with Order 5, rule 2 of the CPR. The service of summons
was not done within the 21 days. There was no application made by the respondent to
extend time within which to serve the summons. The consequence for non-compliance
with the provisions of Order 5, rule 2 is very clear; the suit ought to be dismissed without
notice or for lack of notice.

RELEVANCE: Order 5, service of summons.

25. DFCU BANK V MANJIT KENT AND RAJESH KENT (HCCS 193/2000)
The defendants acted as guarantors for a loan facility that their company had taken out.
It were the terms of the contract that the guarantors would be liable for the sum not
exceeding 20M plus the interest thereon. Upon lapse of days, the loan accumulated to
23M and they sought to challenge the extra 3M saying that it was beyond their
guarantee contract. That argument was rejected and the court found for the plaintiff.

PRINCIPLE: Guarantee is defined as a contract by which the guarantor undertakes

responsibility to the creditor for the liability of the principal debtor to the creditor. .. a
guarantor is a favoured debtor. He is entitled to insist upon rigid adherence to the terms
of his obligation by the creditor and cannot be made liable for more than he has
undertaken. [Since the guarantors had agreed to be liable for the principal sum and the
interest, their defence is sham].

RELEVANCE: Liability of a Guarantor; Compare with Banco Arabe Espanol v Bank of

Uganda - Supreme Court Civil Appeal No. 8 of 1998 [1999] UGSC 1 (5 October
1999)

26. Atabya Agencies v. Stanbic Bank HC Misc App No. 10 9 of 2004

Provision: Sections 93 and 34 of the Civil Procedure Act Cap 71, Section 34 of the
Civil Procedure Act.

Principle: Enforcement of liability of surety where any person has become liable as
surety: Section 93 gives the right to a Judgment Creditor/Decree holder to execute a
decree against a surety who has undertaken to see to the performance of the said
decree. This undertaking may be in the form of furnishing security or giving a guarantee
to perform the decree or make payment of the decretal amount. The performance of the
surety and his principal (The Judgment debtor) is both joint and several. If the Judgment
debtor satisfies the decree fully then the surety is discharged.

27. George William Semivule V.Barclays Bank of Uganda Ltd HC Misc App No.
267 of 2008 Provision: Application for leave to appear and defend under O.36 r
3,4, Section 71 Contracts Act.

Principle: before leave to appear and defend is granted the Defendant must show by
affidavit or otherwise that there is a bona fide triable issue of fact or law. When there is
a reasonable ground of defence to the claim, the Plaintiff is not entitled to summary
judgment. The Defendant is not bound to show a good defence on the merits but should
satisfy the court that there was an issue or question in dispute which ought to be tried
and the court should not enter upon the trial of the issues disclosed at this stage.
However, the defence must be stated with sufficient particularity to appear genuine.
General and vague statements denying liability will not suffice. Referring to ―on demand
bonds‖, the issuer must pay according to its guarantee on demand if so stipulated,
without proof or conditions. The only exception is when there is clear fraud of which
the issuer has notice. It would appear therefore that save for a fraudulent demand by
Respondent bank against the on demand guarantee there be no other reasonable
ground for a defence to the summary suit. The motion by the Applicant on the other
hand does not raise a ground of fraud but rather illegality which in my view is different.
With regard to on demand guarantees/bonds when such guarantees are given together
with a mortgage, in the absence of the mortgage deed (which has not been annexed in
these applications) it is not possible to determine the extent of the obligations there
under by way of summary suit.

28. Post Bank LTD v. Abdu Ssozi SCCS No. 8 of 2015

Provision: Order 36 rule 2 of the Civil Procedure rules, Order 36 rule 11 of the
Civil Procedure Rules.

Principle: There is no doubt that Order 36 rule 2 restricts suits to claims based only on
contract or land as spelt out in rule 2. Therefore, any claim based on a different cause of
action would have to be brought by way of an ordinary suit and not under Order 36.
Reading the plaint, it is crystal clear that the appellant‘s claim is based on a contract
which the appellant executed with the 1st and 2nd defendant who were agents
(attorney) of the respondent. The claim is not based on fraud. It seems to me that the
plaint fulfilled all the requirements of Order 36 rule 2. It sought to recover a liquidated
demand in money payable by the defendants. Defendants in cases which fall under
Order 36 are protected by being given the right to apply to court for leave to appear and
defend the suit. When the court receives their application and is satisfied by the
defendant‘s affidavit that the defendant has raised a genuine triable and not a sham or
frivolous issue, it will grant the defendant leave to appear and defend the suit. (Order 36
rule 4). If the court is not satisfied that the defendant has raised a triable issue, it will
refuse to grant leave to appear and defend the suit, and the plaintiff will be entitled to a
decree in the amount claimed in the plaint with interest, if any. (Order 36 rule 5). If the
defendant fails to apply for leave to appear and defend in the time prescribed (which is
10 days), the plaintiff is entitled to a decree for an amount claimed in the plaint with
interest, if any. (Order 36 rule 3(2)).

29. Geoffrey Gatete & Another vs. William Kyobe, SCCA No. 7 of 2005, this court
explained reasons for setting aside the decree under Order 36 rule 11 by stating that
―…Apart from ineffective Service of summons, what the courts have consistently held to
amount to good cause is evidence that the defendant has a triable defence to the suit‖.
30. Esso Standard (U) Ltd v Semuani Opio SSCA No. 3 of 1993.
An appeal against a judgment and award of exemplary damages awarded to the
Respondent.

Principle; There are specific circumstances under which an award for

exemplary/punitive damages can be made. Civil law has the function of compensation.
Damages for breach of contract and tort are, or ought to be, fixed at a sum which will
compensate the plaintiff. The compensation may be enhanced to cover the loss
suffered, as well as the injury to the plaintiff‘s feelings and reputation.
On the one hand, there is loss to the Plaintiff. On the other, there is the conduct of the
defendant which is high handed, insulting and malicious. The question then is; if tort is a
wrong done to the plaintiff, how would court prevent a wrong done repeatedly in
disregard of the plaintiff‘s rights?
The notion arose that a further sum in damages could be meted out by way of
punishment, or by making an example of the defendant‘s conduct. This extra sum is
what makes punitive/exemplary damages. On appeal, the award for damages was
however rejected, for no legal grounds.

31. Kamunye and Others v The Pioneer Society of Uganda (Civil Appeal No. 28 of
1970.

The Respondent was the mortgagee of land owned by the appellant. The land was let
partly to African and partly to non-African tenants. The Respondent collected rents from
the non-Africans but could not be in possession of the land occupied by the Africans.
The Appellants, in an action in the High Court, claimed that the mortgage was time
barred and that the mortgagee was never in possession of the mortgaged land. It was
held that the mortgage was not time barred. This case was an appeal against that
decision.
Held;
a) Defences raised were substantially the same as in the earlier case and was thus res
judicata.
b) The mortgagee could not be in possession of African occupied land.
c) There was one indivisible security for one indivisible debt.

32. United Builders Service v Yafesi. (HCT-00-CC-0154 of 2005)

Issues;
a) Whether there was a contract of hire of construction equipment between the parties.
b) If so, whether there was a breach of contract by the defendant.
c) Remedies available.
Held; - In the affirmative for all questions.
Principle; Special damages must be specifically pleaded and strictly proved. General
damages are an award meant to try to place an injured party in as good a position in
money terms, as he would have been, had the wrong complained of not occurred.
The Plaintiff is a business entity, which must be using the monies that it earns to pay its
Operational costs and reinvest in business. Non-payment denies it its expected income
and its utilization.

33. Obed Ahimbisibwe v Akright Projects Ltd. (Civil Suit No. 832 of 2007)
Principle; upon breach of contract to pay money due, the amount recoverable is
normally limited to the amount of the debt together with such interest from the time
when it became payable under the contract or as the court may allow.
Such award fulfils the principle of restitutio in integrum, i.e the plaintiff has to be put in a
position he would have been, had the injury complained of not occurred. The award of
interest is compensatory. Interest is awarded for the deprivation of the plaintiff to the
amount in due time and under the restitution doctrine. ―An award of interest is
discretionary. It seems to me that the basis of an award of interest is that the Defendant
has kept the Plaintiff out of his money, and the Defendant has had use of it to himself.
So he ought to compensate the plaintiff accordingly.‖ – per Lord Denning in the case of
Jefford and Anor v Gee (1970) 1 All ER 1202.

34. DHARAHSHI V KARSAN [1974]1 EA 41

Principle: Award of damages

The respondent was awarded damages in respect of the appellant‘s breach of contract
in refusing to allow him to complete a building contract. The trial judge made no
deduction from the balance of purchase price in respect of the cost which the
respondent would have had to incur to complete the work, awarded Shs. 1,500 as
damages for breach and awarded damages for the detention of the respondent‘s tools
as well as their value. On appeal, it was held that;
That general damages are not allowable in addition to the quantified damages as such
an award would amount to a duplication.
The fundamental principle by which courts are guided in awarding damages is
restitution in integrum and therefore the trial judge should have deducted the cost of
completing the work from balance of contract price which would have placed the plaintiff
in the same position as if the contract had been performed.
That in an action for detinue, a plaintiff is entitled prima facie to the value of the goods
together with any special loss that is the natural and direct result of the wrong. The
valuation of the goods should be assessed as at the date of judgement. A plaintiff can
recover the return or value of his goods as well as damages for their detention. If the
goods are profit earning and are normally hired out, then a plaintiff can receive as
damages the full market value of such hiring during the whole period of that detention.
However, where a plaintiff cannot prove market loss of the market rental of his goods,
he may still recover damages as a claim for consequential loss is part of the basic claim
in such an action.
35. UGANDA TELECOM LIMITED V TANZANITE CORPORATION SCCA No. 17 of
2004

The respondents sued the appellants for alleged breach of contract. The remedies
sought consisted of loss of profits, loss of unused materials, unpaid bank loan, general
damages, interests, and cost of the suit. The trial court allowed only the respondent‘s
claim for loss of unused materials. The respondents successfully appealed to the COA
which allowed all the heads of the respondent‘s claim hence this appeal.

HELD – Oder JSC

A proforma invoice is an offer to treat not an offer of a contract.
On special damages, court held that it is trite law that this form of damages cannot be
recovered unless it has been specifically claimed and proved or unless the best
available particulars or details have been before trial communicated to the party against
whom it is claimed. In a claim for profit, the normal measure of damages as stated in
Section 62(2) of the SGSSA is that the contract price is less than the market price at the
contractual time for acceptance. In a claim for damages for breach of contract for sale of
goods, both the provisions of the SGSSA and the legal principles on pleading and proof
of special damages are relevant and are not mutually exclusive.

36. UGANDA ELECTRICITY BOARD V G. W MUSOKE SCCA No. 30 of 1993

Sections 1, 5, 6, 10 of the Law Reform (Miscellaneous Provisions) Act.

That on 30/08/1988, the respondent‘s son, aged 14 years, was electrocuted when he
stepped on the appellant‘s live electric cables left lying on the ground in Lugazi. An
action was brought under the Law Reform (Miscellaneous Provisions) Act for loss
suffered as a result of death of a son. The learned judge awarded the respondent
special damages for funeral expenses, general damages for loss of expectation of life
and for loss of services to the family. In awarding these damages, the trial judge
apportioned them to different members of the family including the siblings of the
deceased.

HELD – Odoki JSC: Damages should not have been awarded to the siblings because
they were not dependents. This is irrespective of the fact that Section 1b read together
with Section 5 of the Act does not use the words dependents but members of the family.
The intention of the Act was to provide for members of the family who were dependents
of the deceased and therefore suffered pecuniary loss as a result of death.
There cannot be an award of damages for loss of service unless it is proved that the
services rendered by the deceased to his father/family were of pecuniary value.
As to loss of prospective financial assistance, the whole matter is beset with doubts,
contingencies and uncertainties. What is needed is then to establish by evidence that
there was a reasonable prospect of pecuniary benefit, not merely a fanciful probability.
On the award for loss of prospective happiness, the assessment of such damages is not
compensation for loss of years or loss of future pecuniary prospects but for fixing, upon
common sense principles of a reasonable figure for the loss of prospective happiness.
Due to the uncertainties of life, damages for loss of expectation of life should be
moderate. The law in Uganda is still that damages are not awarded for bereavement but
it is high time they were recognised or at least considered particularly in cases of
bereaving parents when assessing damages for loss of expectation of life.

37. THE COMMODITY HOUSE LIMITED V SUGAR AND ALLIED INDUSTRIES

LIMITED
Remedies for breach of contract (Section 62 of SGSSA)
The Plaintiff brought this action against the Defendant for breach of contract and for
orders that the Defendant pays the following sums to the Plaintiff namely; a sum of
US$291,035 being the total outstanding balance of the contractual money paid by the
Plaintiff to the Defendant or the supply of the equivalent thereof being 485 metric tons of
sugar. Secondly, the Plaintiff prays for general damages and costs of the suit.

HELD Justice Madrama that now Section 62 of the SGSSA is very clear the buyer may
maintainan action against the seller for damages for non-delivery and that the measure
of damages is the estimated loss directly and naturally resulting in the ordinary course
of events from the seller's breach of contract. On whether damages ought to be
awarded in addition to an award of interest. One cannot have the money refunded and
claim for profit for the loss of goods at the same time since the goods are represented in
the money. The refund of the money is part of the compensation and any loss flowing
from the breach can be reflected in interest on the refund or as general damages.
Where general damages are awarded, the further interest can be awarded from the
date of judgement and still achieve the same result if interest had been awarded as the
rate of compensation from the time the case of action accrued

38. KENLLOYD LOGISTICS V KALSON Civil Suit No. 185 of 2010 – S(61)(1) of CA

The plaintiff brought this suit against the Defendant and sought to recover special
damages, general damages for breach of contract and interest on both sums.

HELD; Justice Flavia Senoga stated that Section 61(1) of Contracts Act- a party who
suffers breach of contract is entitled to receive compensation for any loss or damage
suffered. On definition, that damages import sums which fail to be paid by reason of
some breach of duty or obligation, whether that duty or obligation is imposed by
contract, by general law or obligation. On Special damages and loss of profit; these
must be specifically pleaded. They must be proved exactly, that is, on the balance of
probability. On general damages; these are the direct consequence of the act
complained of. Such consequences may be loss of use, loss of profit or physical
inconvenience. Relied on Haji Asuman Mutekanga v Equator Growers (U) Ltd SCCA
07/1997 to state that in proof of general damages for breach of contract, damages are
what the court may award when it cannot point out any measure by which damages are
to be assessed except the opinion of and judgement of a reasonable man. Cited
Section 26(2) of the Civil Procedure Act on the power of court to award interest if not
agreed upon. In addition to Section 27(2) of the same, a successful party is entitled to
costs of the suit unless the court for good reason decides otherwise.