CIVIL LITIGATION WORKSHOP 2

Explain the principles regarding the conditions for obtaining an order for inspection of documents, discovery of documents and for
interrogatories; for setting aside default judgments, interlocutory judgments, ex-parte judgments and decrees under O.9 r.12 CPR &
O.9 r.27 CPR; and O.36 r. 11 CPR, and procedures for seeking court‘s directions, conducting a mediation hearing and scheduling of a
conference.

Issues

1. What are the principles regarding the conditions for obtaining an order for inspection of documents?

2. What are the principles regarding the conditions for obtaining an order for discovery of documents?

3. What are the principles regarding the conditions for obtaining an order for interrogatories?

4.What are the principles regarding the conditions for obtaining an order for setting aside default judgments under O.9 r.12 CPR?

5.What are the principles regarding the conditions for obtaining an order for setting interlocutory judgments O.9 r.27?

6. What are the principles regarding the conditions for obtaining an order for setting ex-parte judgments O.36 r. 11 CPR?

7. What is the procedure for seeking court‘s directions, conducting a mediation hearing and scheduling of a conference?

GROUP 1

1. AN ORDER FOR INSPECTION OF DOCUMENTS

Order 10 rule 15 of the CPR is to the effect that, if any document is referred to in a party‘s pleadings or affidavits, his opponent may
serve a notice on him requiring him to produce that document for inspection.
Within ten days of receiving such a notice, the party must serve a notice stating a time within three days of receipt of notice and a
place where inspection may take place, as per order 10 rule 17 of the CPR. If objection is taken to the production of any document,
the notice must specify the document and state the grounds of the objection.

This procedure may be useful where, for example, a party‘s pleading refers to ‗an agreement in writing dated …‘ since it gives the
opportunity for inspection of the document without waiting for formal discovery, which take place after a close of pleadings. Thus the
defendant may inspect a document referred to in a plaint before he drafts his defence.
However, order 10 rule 18 of the CPR is to the effect that if a notice served is not complied with, the applicant may move court to
make an order for inspection. This order may be made before filing a defence as per the case of Diamond Concrete V Patel (1969)
EA 518.

A party who has served a list of documents on another party must allow the latter to inspect the documents contained in the list, other
than any which he objects to produce, and to take copies. The list of documents will contain a notice at the end specifying a time
within three days after the service of the list when the inspection may take place and the place of inspection.
Inspection thus entails both;
(a) the examination of the documents on the list or on the pleadings or affidavits and
(b) the taking away of copies.

The principles regarding the conditions for obtaining an order for inspection of documents
The particulars as to the time for inspection must be reasonable. If the particulars are unreasonable or if the party fails to make
provision for inspection at all, the court, upon application for an order supported by affidavit specifying, the documents of which
inspection is sought and that in the deponent‘s belief the documents are in the possession, custody or power of the other party, will
make an order for inspection. The court also has the power to order the production of documents to the court itself.
Disclosure of documents by inclusion, in a list of documents does not mean that they have to be produced for inspection. A court
will apply the necessity test to an application for production as was observed in the case of Dolling Barker V Merret (1990) 1WLR
1205.

Noncompliance with the Court’s Order

Order 10 rule 21 CPR stipulates that, if a defendant does not comply with an order for discovery, the court may strike out the
defence and enter judgment for the plaintiff and if a plaintiff does not comply with an order, the court may dismiss action.
The court may also order committal against a defaulting party, if that party has no reasonable excuse for failure to comply.

2. DISCOVERY OF DOCUMENTS

Discovery is the procedure whereby one party to an action must disclose to the other party the existence of all documents which are or
have been in his possession and which are material in the action.

The process of discovery operates as a powerful procedural instrument to produce fairness, openness and equality in the machinery
of civil justice. It enables each party to be informed or to be capable of being informed of all the relevant material evidence, whether
in the possession of the opposite party or not.

It ensures that as far as possible there should be no surprises before or at the trial, and it reveals to the parties the strength or
weaknesses of their respective cases, and so produces procedural equality between them. It also encourages fair and favourable
settlements, shortens the lengths of trials and saves costs.

Discovery refers to the disclosure and inspection of documents as opposed to facts. Documents include originals and copies of
original documents, tape recordings and computer disks. Discovery may be automatic or ordered, general or specific, and it may
relate to documents not within the jurisdiction.

Who may apply for discovery order?

Order 10 rule 12 of the CPR stipulates that, any party may, without filing any affidavit, apply to the court for an order directing any
other party to the suit to make discovery on oath of documents, which are or have been in possession or power relating to any matter
in question therein

The main aims of discovery are to save costs, and to dispose of the matter fairly. It should be granted to ameliorate stoppages during
proceedings due to one party‘s ignorance of facts only known to the other party as per the case of Dresdner Bank V Sango Bay No.
4 [1971] 1 URL 82.

The principles regarding the conditions for obtaining an order for discovery of documents

Documents must be relevant.

Documents, which must be disclosed are those relating to any matter in question between the (parties) in the action. In the leading case
of Campagnie Financiere vs. Peruvian Guano Co.1882 11 QBD 55 at 63, Brett L J gave a very wide interpretation of this phrase.
He said;

“I think it obvious from the use of these terms that the documents to be produced are not confined to those which would be evidence
either to prove or disprove any matter in question; and the practice with regard to insurance cases shows that the court never thought
that the person making the affidavit would satisfy the duty imposed upon him by merely setting out such documents as would be
evidence to support or defeat any issue in cause.

The doctrine seems to me to go further than that and to go as far as the principle which I am about to lay down. It seems to me that
every document relates to the matters in question in the action, which may enable the party requiring the affidavit either to advance his
own case or to damage the case of his adversary, if it is a document which may fairly lead him to train of inquiry which may have
either of these two consequences.‖

Although discovery may be general, it must not be used as a ‗fishing’ expedition or in any improper way. In Forester vs. British
Railways Board1996, The Times April 18for instance, the action related to a fatal accident on a railway.
The plaintiff sought discovery relating to a wide range of aspects of train operations including reports of accidents which had occurred
as a result of doors opening on moving trains. It was held that the documentation required to be disclosed was too wide and
clearly constituted a fishing expedition.

Improper use of discovered documents.

The courts discourage improper use of discovered matter. Improper use includes using discovered material to start new causes of
action. This prohibition does not apply to Mareva injunctions (which is a branch of discovery), since such injunctions may be
specifically granted in order to facilitate other proceedings. The party seeking discovery will give an undertaking not to use the
discovered material for any purpose other than in furtherance of the present action.

Privileged documents.
A party-making discovery may object to producing privileged documents for inspection. Where privilege is claimed for any
document, the court may itself inspect it in order to deceive whether the claim is valid. the commonest types of privileged documents
are;

a) Communication between Counsel/Advocate and Client

Any document written by a Counsel and addressed to his client (and vice versa) is privileged, provided it is intended to be confidential
and is written with the object of obtaining or giving legal advice or assistance as was in the case of Munnet V Morgas (1873) LR
Ch. 631. It is not necessary that the document should have been prepared with the present or any litigation in mind. Instructions and
briefs to counsel and counsel‘s opinions, drafts, and notes are also privileged.

Communication passing between the client and his/her legal adviser together and, in some cases with communication passing between
these persons and third parties, may not be given in evidence without the consent of the client if they were made either with reference
to litigation actually taking place or is in the contemplation of the client or to enable the client to obtain or the adviser to give legal
advice. This was reiterated by Sir Richard Scott V-C in Re Barings Plc. [1998] 1 ALL ER 673 that,

“Individuals should be able to consult their lawyers in the certain knowledge that what they tell their lawyers and the advice they
receive from their lawyers, whether orally or in writing, will be immune from compulsory disclosure.”

The rationale for this rule was given by Lord Taylor of Gosforth CJ in R Vs Derby Magistrates Court, Ex-parte B [1996] AC 487
at 507 that,
“…a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure
that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more
than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the
administration of justice as a whole rests.”
b) Privilege against Self Incrimination
A party has a right to refuse to answer questions or produce documents tending to show that he has been guilty of a criminal offence
or the answers to which might expose him or her to any penalty, which is reasonably likely to be sought.
In Renworth Ltd vs Stephensen [1996] 3 AL ER 244 court held that it would uphold a claim for a privilege against disclosure on the
ground of self-incrimination in a civil case where it was satisfied that disclosure would tend to expose the person concerned to
proceedings for a criminal offence(s).

In deciding whether such a claim could be upheld, the court would examine;

 The existence of any link between the answers sought and the offence(s) to which the claimant would be exposed, and
 Whether, in respect of any possible offences, the privilege had been removed and replaced by a more limited statutory
protection.

c) Without prejudice communications.

Communications between the parties or their advisers are not privileged. Thus, for instance letters written by an opponent or his
adviser may be produced in evidence by the party to whom they are addressed.

For example to establish admissions or to use in cross-examination in order to show inconsistency in versions of facts put forward.
An exception to this principle is the ‘without prejudice’ communication, the purposes of which is to enable the parties to negotiate
in order to settle a dispute without the correspondence relating to the negotiations being used against them should the negotiations fail.
In such circumstances, letters marked ‗without prejudice’, whether litigation was current or not, will be privileged and may not be
put in evidence unless both parties consent as was observed in Rabin V Mendova & co.[1954] 1 WLR 271. So long as the
correspondence is in the course of negotiations it may be privileged, even if not expressly marked ‘without prejudice’, conversely,
the use of those words does not confer privilege, if the correspondence was not in fact bonafide written for the purpose of negotiations.

Ordered discovery.
The court has discretion to order discovery of documents in cases where automatic discovery is not applicable. An order for discovery
is not limited to actions begun by plaint but applies to any action begun by an originating process. The court may also order discovery
in cases where;
(a) Where a party fails to make automatic discovery when he was under an obligation to do so;
(b) Where disclosure is insufficient;
(c) Where a party seeks specific discovery of a document;

(d) Where a party seeks discovery as a tracing remedy only.

For O.10 r 14CPRthere has to be proceeding pending and also court is empowered to order the production of the document. This
order is narrower than rule 12 & 13 which concern discovery before hearing commences. This was expressed in Uganda
Commercial Bank V Akamba (U) Ltd [1992] IV KALR 28.

The purpose of discovery is to ensure that the issues which are to be decided by the trial judge are clearly defined as possible, and to
ensure that the trial takes place within the estimated time set out in the order for directions, discovery must be completed before a case
is set down for trial.

ACTION FOR DISCOVERY

The Norwich Pharmacal Rule;The court derives its power to order this form of discovery not from the Civil Procedure Rules, but
from its inherent jurisdiction.
Here, discovery relates to the identity and whereabouts of a third party who has become in some way innocently implicated in the
commission of a tort. An order of this nature is discretionary and the court has the power to restrict its application, particularly where
there is a public interest element, such as a breach of confidentiality.

Important to note is that, discovery will not be ordered under the Norwich Pharmacal Rule where the defendant is a mere
witness or observer who was not implicated in the wrongdoing.

The question as to whether the defendant was mixed up in the wrongdoing or whether he was a mere witness may be a difficult one to
answer. In Ricci vs. Chow[1987]3 ALL ER 534, the official journal of the Seychelles National Movement had published an article
alleging that the plaintiff in collaboration with others, had procured the assassination of a prominent member of the party. The
plaintiff brought an action for damages for libel against the defendant, the secretary general of the party, on the ground that the
defendant was responsible for the publication, or alternatively for an order that the defendant should divulge the identities of the
persons responsible. The judge found that there was no damages for libel was struck out, but he allowed two interrogatories, requiring
the defendant to divulge the names of the publishers and printers of the article.

The Court of Appeal, over ruling the judge, held that the case was not within the Norwich Pharmacal principle since the
defendant had in no way facilitated the printing and publication of the article, unwittingly or otherwise, and the mere fact that
he was aware of identities of the alleged tortfeasors could not justify an order for discovery at common law, even if his
evidence was the only means by which they could be identified. The defendant was a mere witness or observer in relation to the
publication and he had not involved in the alleged libel. He was therefore not susceptible to an action for discovery.

An extension of the Norwich Pharmacal principle occurred in Bankers Trust Co.vs. Shapira [1980] 3 ALL ER 353 in which the
ground for refusal was that an order for discovery should not be made so long as the true defendants to the action had not been served.
The English Court of Appeal, overruling the judge, held that discovery could be ordered against the bank in order to give effect to a
defrauded plaintiff‘s equitable right to trace his money, even though the bank had not incurred any personal liability.

The problem in Practice

In most cases where discovery is required or deemed the parties disclose and produce everything, which is arguably relevant to the
subject matter of the action. This is not the proper compliance with the ‗Peruvian Guano’ test or anything like it. This case involves
skill and judgment: the advocate must ask himself or herself whether the document may assist either party in advancing its case on an
issue disputed on the pleadings, or in destroying the other party‘s case on an issue in the pleadings, either directly or by setting off a
train of enquiry. If not, it should not be disclosed.

The rules, which govern the categories of documents that must be disclosed and produced on discovery, work effectively, either
because there are not many documents or because the parties co-operate. It is in document-heavy cases and where the parties do not
cooperate that serious problems arise. It is common for there to be lack of co-operation, with parties approaching discovery in an
adversarial and obstructive manner.

Discovery in such circumstances may have adverse consequences for the future conduct of the proceedings, as the pleadings become
longer and more complicated, and may also become necessary to call more witnesses and experts to deal with additional issues. This
makes the case become more difficult to try.

3. INTERROGATORIES

Interrogatories are questions addressed to an opposing party in the action, aimed at discovery of facts. The power of court to
administer interrogatories is derived from legislations, per section 22 of the Civil Procedure Code Act and Section 22 of the
Government Proceedings Act. The essential requirements for proper interrogatories are that they should:
i) Relate to a matter in question between the parties; and

ii) Be necessary either for disposing fairly of the matter or for saving costs.
It is entirely in the discretion of the judge as to whether an interrogatory will be allowed or disallowed.

Order 10 rule 1 CPR is to the effect that, In any suit the plaintiff or the defendant may apply to the court within twenty one days
from the date of the last reply or rejoinder referred to in Order 8, rule 18(5) of these rules for leave to deliver interrogatories and
discoveries in writing for the examination of the opposite parties, or any one or more of such parties and such interrogatories when
delivered shall have a note at the foot thereof which of such interrogatories each of such persons is required to answer.

In D’Souza V Ferrao [1959] EA 1000, it was noted that the requirements that interrogatories when delivered shall have a note at
foot stating which parties are required to answer which interrogatories is mandatory and as a matter of practice, such note should
always appear on the draft submitted to the court. Any order of court to issue interrogatories shall direct by what officer of the
Government the interrogatories are to be answered as per section 22 of the Government Proceedings Act.

Procedure
There is no particular specific time is specified in rules for administering interrogatories, but it is clear that no useful purpose would be
served if they were issued before close of pleadings, or before discovery, service of request for further and better particulars, or notices
to admit facts, which might be expected to yield the kind of information sought in interrogatories.

Consequently, the application for leave to serve interrogatories should be made at reasonable time before the trial is likely to come on.
Interrogatories shall be in form 2 of appendix B of Civil Procedure Act with such variations as circumstances may require as per
Order 10 rule 4 CPR.

The principles regarding the conditions for obtaining an order for inspection of documents

There are no rigid rules for determining when leave will or will not be granted to administer interrogatories. Much depends upon the
circumstances of the individual case. However, there are a number of guidelines which have been developed and which will be
followed. These guidelines may be categorized under the following heads:
i. Relevance
Interrogatories must ‗relate to any matter in question‘ between the parties. InMarriott Vs. Chamberlain 1886 17 QBD 154, pg 163
Lord Esher MR. attempted to explain the meaning of relevance in this context:
―The right to interrogate is not confined to facts directly in issue, but extends to any facts the existence or nonexistence of which is
relevant to the existence or nonexistence of the facts directly in issue.‖
There are three important limits to the general rule regarding relevance which include;

(1) Interrogatories relevant only to the credibility of witness will be disallowed.

(2) Interrogatories may be sought only as to matters relevant to the present action; questions that are relevant not to the present
action but to other or future actions should be disallowed.

(3) ‗Fishing‘ interrogatories are not allowed.

However, it should be noted that Rules 2 and 3 may be regarded as aspects of the same principle and indeed the courts have treated
them as such. ‘Fishing’ was defined by Lord Esher MR. in Hennesey vs. Wright (No.2) (1888) 24 QBD 445 pg 448thus, ―The
moment it appears that questions are asked and answers insisted upon in order to enable the party to see if he can find a case, either
complaint or defence of which at present he knows nothing, and which will be a very different case from that which he now makes,
the rule against ‗fishing‘ interrogations applies.‖
And, according to Atkins’ Court Forms, vol. 21 (1) 1996 issue 515, fishing interrogations include interrogatories designed to try to
establish a cause of action or defence not pleaded, or a new cause of action against a third party (for example, whether the interrogated
party was acting as agent for an undisclosed principal).
Facts

Interrogatories are for facts, and therefore they will be disallowed where;

i) They call upon the interrogated party to express an opinion on something;

ii) They are aimed at discovering the evidence available to the other side; they are not intended to provide a substitute for
evidence.

iii) They are aimed at discovering the contents of an existing document or as to what documents a party has or had in his
possession or control.

Necessity;
Interrogatories may be administered only where they are necessary for disposing fairly of the action or for saving costs. Interrogatories
will not normally be necessary for saving costs or for disposing fairly of the action if witnesses are likely to be called at trial to give
evidence on the same matters. This rule applies particularly to running down cases.

Other exclusions.

In Griebart vs. Morris Bankes L J said that interrogatories have two legitimate purposes, one, to obtain an admission and thus
support the interrogating party‘s case, and the other to destroy the opponent‘s case. Therefore, interrogatories which support the case
of the opponent and not that of the interrogating party will generally be disallowed.

Important to note is that, Oppressive interrogatories, such as those which, exceed the legitimate requirements of the particular
occasion, or those that do not formulate with precision and clarity, or Place on the interrogated party a burden out of all proportion to
the benefit gained for example, by requiring an unreasonable amount of research, are all disallowed.

Also, those that ask for details of the interrogated party‘s secret manufacturing processes and, not allowed.
The following are some of the examples of allowable interrogations;

In Aggarwal V Official Reciever, court observed that the granting of leave to serve interrogatories is entirely in the discretion of the
court in each case and there is no right to administer interrogatories and accordingly there is no finite list of allowable or prohibited
interrogatories. However, the following are some examples of interrogatories, which have been allowed:

(a) Asking (in a slander action) whether the words complained of were spoken.
(b) Asking for the name of the publisher of a defendant newspaper in a libel action.
(c) Asking for figures of the circulation of a newspaper in a libel action, where quantum of damages was in issue as was in the
case of Panell V Walter (1890) 24 QBD 44.
(d) Asking whether (in an action for breach of copyright) the product in question had been copied from the plaintiff‘s product.

(e) Asking whether the defendant was in possession of a vehicle at the time when it was involved in an accident.

(f) Asking in order to prove the handwriting of a disputed letter, whether the interrogated party was the writer of another letter,
per Jones V Richards (1885) 15 QBD 439.
(g) Asking whether contractual documents had been signed by interrogated party‘s authorized agents.

Order 10 rule 8CPR is to the effect that, Interrogatories are answered by affidavit and are binding on the interrogated party in the
sense that an answer is intended to be an admission by the party who makes it, or at any rate a statement by which in ordinar y
circumstances he will be bound. In most cases, answers may be a simple ‗yes‘ or ‗no‘ but where explanations are included, they must
be unambiguous, precise and reasonable.

Order 10 rule 11 CPR stipulates that, If the answers provided are insufficient, the interrogating party may seek an order that the
opponent should file a further and better answer and the court may order the latter to answer further, either by way of affidavit or upon
oral examination. Insufficiency of an answer has to be determined by court. Answers or part answers to interrogatories may be put in
evidence at the trial. A party may object to answering on the ground of privilege, such objection is conclusive unless the contrary is
shown.

Where a party fails to answer interrogatories, the court may dismiss the action or order the defence to be struck out, as the case may
be. There is also power to commit a defaulting party to prison for contempt. Before making any of these orders, the court may make
an ‗unless order‘ providing the party in default with a last opportunity to comply.

4. SETTING ASIDE DEFAULT JUDGMENTS

When a party is served with summons and the plaint, they are required to respond by way of filing a written statement of defence and
in case of summary procedure the defendant is expected to seek leave to appear and defend. Those processes are time bound 15 days
for the plaint 10 days for summary procedure.
Sometimes the defendant does not comply. This noncompliance maybe as a result of negligence from unserious lawyers or may result
from the service of process with the result that the defendant is unable to comply with the requirements to file. At this stage the court
is left with no other option but to enter judgment for the plaintiff.
The judgment obtained in this context is may not be a judgment on the merits, because the parties are not heard. This judgment is in
default, normally described as a default judgment and its provided for under Order 9. Rule 6 of the Civil Procedure rules.
In order for such judgment a judgment to be entered by court the following prerequisites must have been satisfied.
a) The suit should have been commenced by ordinary plaint under order 4 ri in line with 0rder 7
b) The claim in the plaint must have been for a liquidated demand only. The liquidated demand for this purpose means a specific sum
of money claimed under any contract undertaking other document of acknowledgment.
In the Case of Twine Amos V Tamusuza James Civil Revision 2009/11 UGHC 211 Justice Mulyagonja authoritatively stated that
the operative phrase for entering judgment in the provisions above (o.9 r 6) is a liquidated demand.

For the defendant all is not lost. This type of judgment can be set aside under Order 9 rule 12 of the civil procedure rules which
empowers courts to set aside on just cause judgments under rule 6&7, rule 8 and 11(2). In articulating what just cause means, courts
have tried to list though not exhaustive Nicholas Roussos V Gulam H.H Viran SCCA No. 3 of 1993 (unreported) to include the
following;

(a) According to Shaban Din V Parkesh Anand (1955) 22 EACA 48,A mistake by an advocate though negligent may be
accepted as a sufficient cause.
(b) In Zirabamuzale V Correct [1962] EA 694, Ignorance of procedure by unrepresented defendant may amount to sufficient
cause.
(c) Illness by a party may also constitute sufficient cause, as in Patel v Star Mineral Water and Ice Factory [1961] EA 454.
(d) Failure to instruct an advocate is not sufficient cause to justify delay.
The head note Order 9 rule 12 suggests that it is applicable to only setting aside only exparte judgments but after a critical perusal of
the entire rule it can be understood to have effect on all preceding judgments

A defendant who wishes to apply to set aside a default Judgment should act reasonably and promptly, and if there is delay in making
the application, he should explain in his affidavit the reasons for such delay, the court may in its discretion reject the application.
Nonetheless, the court still has a discretion to set aside Judgment even though there has been delay so long as it is satisfied that;
(a) No one has been prejudiced by the defendant‘s tardiness;

(b) Or that such prejudice as has been sustained can be cured by an appropriate order for costs;

(c) Or that to allow the Judgment to stand would be oppressive.

Final judgements and interlocutory judgement

A Judgement, which determines the principal matter in question, is final. Such a Judgement is obtained in all action by which a
previously existing liability of the defendant to the plaintiff is ascertained or established.
Also such a Judgement can be obtained in an action by which the question whether there was a pre-existing right of the plaintiff
against the defendant is finally determined in favour of either of the plaintiff or of the defendant.

An interlocutory judgement is one which applies in cases where the plaintiff is claiming for pecuniary damages which are not
ascertained and detention of goods. This position is premised in Order 9. Rule 8 of the Civil Procedure Rules. The same was
witnessed in Lloyds Forex Bureau v Securex Agencies (u) ltd HCCS No. 358/2012 where Justice Madrama held that O. 9 r 8
permits the court to enter interlocutory judgmenys against defendants where there is a claim for pecuniary damages.... and this is
where the defendant fails to file a defence within a period prescribed in the summons. Therefore this is not a final judgment. However
it should be noted that though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it deals.

AN EX-PARTE JUDGEMENT.
An ex-parte Judgement may be entered obtained under two circumstances. On the basis of of the fact that such a judgment is entered
against a defendant who has not entered appearance. Under order o 9 r 11 (2) the plaintiff must move court by way of an application
by chamber summons to grant leave to the plaintiff to proceed exparte. Before court grants such order, it must be satisfied
A) that the defendant was dully served with summons and pleadings.
B) that there is evidence of such service by way of an affidavit of service o.5 r 16
C) that the time within which the defendant is supposed to have filed his WSD must have lapsed.
It is not a requirement under O.9 r 11 (2) to serve the defendant with hearing notices.
However the court has power to revoke such judgement, which is not pronounced on merit of the case or by consent but entered
especially on failure to follow requirements of the law.
Order 9 rule 3 CPR is to the effect that, the court has no discretion but must set aside Judgment entered by Registrar where it
appears there has been no proper service as per Wamani v Kirimu [1969] EA172 Before setting aside an ex-parte Judgment, the
court has to be satisfied not only that the defendant had some reasonable excuse for failing to appear (file a defence) but also that there
is a merit in the defence to the case.

Setting aside decree ex parte against defendant under order 9 r 27

There is a string of authorities that establishes that the principles applicable to rules 27 and 12 are different and the discretion under 12
is limited whereas under rule 27 is wide. In Patel v EA Cargo Handling Services (1974) which is equivalent to our rule 27 gave
courts unlimited discretion. Duffus P said there are no limits or restrictions on the judge‘s discretion that if he does vary the judgment
he does so on such terms as maybe just.

Therefore. Rule 27 applies where the following have occurred

1. that summons had not been duly served
2. That the defendant was prevented by sufficient cause from physically appearing when the case came up for hearing
Rule 12 applies only where judgment has been passed to any of the preceding rules of order 9 rule 12
Then under Order 36 R 11 it is provided that After the decree the court may, if satisfied that the service of the summons was not
effective, or for any other good cause, which shall be recorded, set aside the decree, and if necessary stay or set aside execution, and
may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the court so to do, and on
such terms as the court thinks fit.
This applies where the following have occurred
1. The suit must have commenced through summary procedure under Order 36 r 1&2
2. That summons had not been duly served
3. That the defendant was prevented by sufficient cause from physically appearing when the case came up for hearing
4. the defendant has a plausible defense and has actually attached a draft of the same

5. DECREE
Section 2 of the CPA defines a decree to means the formal expression of an adjudication which, so far as regards the court expressing
it, conclusively determines the rights of the parties with regard to any of the matters in controversy in the suit and may be either
preliminary or final. It shall be deemed to include the rejection of a plaint or writ and the determination of any question within section
34 or 92, but shall not include— (i) any adjudication from which an appeal lies as an appeal from an order; or (ii) any order of
dismissal for default; Order 21 rule 7(1) CPR stipulates that a decree is derived from the Judgement and it must bear the date of the
day on which the Judgement was delivered.
What is the procedure for seeking court’s directions, conducting a mediation hearing and scheduling of a conference?

Procedure for seeking court‘s directions

The court has a discretion to give orders aimed at meeting justice or prevention of abuse of court process. This is provided for under
section 98 of the Civil Procedure Act which ensures that, nothing in this Act shall be deemed to limit or otherwise affect the inherent
power of the court to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of court.
These orders by court are called court‘s directions and these are obtained through first, obtaining summons for directions by the
parties to the case on completion of filing of the case.
Summons for directions are provided for under The civil procedure (Amendment) Rules, 2019 under Order 11A and for this case,
rule 1(2) provides that where a suit has been instituted by way of a plaint, the plaintiff shall take out summons for direction within 28
days from the date of the last reply or rejoinder referred to in rule 18(5) of order 8 of these rules and these summons shall be returned
within 14 days from the date they are taken out under sub rule 3.
The effect of failure to take out summons for directions is abating of the suit. This is provided for under order 11A rule 1(6) of the
Civil Procedure (Amendment) Rules, 2019. Upon the suit being abated, the case shall be no more and the plaintiff will subject to the
law of limitation file a fresh suit. This is provided for under sub rule 7.
Suffice to note is that a summons for directions applies to all actions instituted by the plaint under sub rule 4 of rule 1 of the CPR
amendment.
However, the above assertion is subject to the exceptions provided thereunder, that is;
Where a plaintiff or counter claimant has applied for a default judgment under order 9 rule 6 and 7 of the Civil procedure Rules,
summary Judgment under order 36 or where an application for leave to file a defence under order 36 has failed.
Where the plaintiff or defendant has applied for quick determination of the suit on a point of law under order 6 rule 29 (where the
preliminary objection, counter claim, set off or other things set therein can lead to a dismissal) or Rule 30 (where the pleading is struck
out) Civil procedure Rules or Order 15 rule 2 ( where there are issues of law and fact. And issues of law can dismiss it, issues of law
will be heard first)
Where an order for taking out an account is being sought under a suit persuant to Order 20 of the Civil Procedure Rules.
Where an application has been made to transfer the suit to another Division , court or tribunal.
Where an action has been referred for arbitration.
The rationale for the above exceptions is that they too are quick windows towards the disposal of suits and it would have been a legal
absurdity to render suits under such circumstances a subject to the process of summons for directions.
And finally taking out summons for directions will clothe the magistrate/ Registrar with powers and jurisdiction to entertain and
dispose of any pending interlocutory or preliminary formal application before trial (which have a long history of delaying trial).
SCHEDULING CONFERENCE

A scheduling conference is a meeting between parties with the assistance of court where they sort out areas of agreement and
disagreement leaving contentious issues for actual hearing.

Under Order 11A (8) of the Civil Procedure Amendment rules, 2019, a suit is supposed to be set down for scheduling before the
trial judge seven days after compliance with a summons for directions.

Purpose

The main purpose of scheduling conference is to ensure that dispute resolution progresses as expeditiously and economically a s
possible to a fair settlement by negotiation or mediations or some other system of civil litigation. It was held in Tororo Cement Co.
Ltd v. Frokina International Ltd, S.C.C.A No. 2/2001 and Stanbic Bank (U) Ltd v. Uganda Cros Ltd; S.C.C.A No. 4/2004,that the
purpose of a scheduling conference is to sort out issues of agreement and disagreement by the parties so that those issues that are not
disputed need not be litigated over.

That resonates with section 22 of the Evidence Act which is to the effect that facts which are admitted need not to be proved.

Schedule 2 Part IV of the Civil Procedure (Amendment) Rules 2019 contains guidelines for scheduling conference/Pre-trial
Directions which are intended to guide and give a framework for the production of a joint scheduling memorandum and trial bundle
by counsel. The expected outcome of discussions between opposite counsel is a joint scheduling memorandum and a joint trial bundle
to be filed in court before the date for holding a scheduling conference. Parties and their counsel are expected to attend the pre-trial
conferencing scheduled on the date given. Costs may be ordered against a party who intentionally and with a view to delay or defeat
the pre-trial, delays or does not cooperate in producing the necessary joint scheduling memo and trial bundle (if any) under these
directions

The procedure in holding a scheduling conference is that;

 parties introduce themselves through counsel

 Court explains the purpose of the scheduling conference

 Plaintiffs‘ lawyer presents the plaintiffs case in brief

 The defendants lawyer presents the defendants case in brief

 Court establishes whether there have been efforts to settle/ Parties are given Opportunity to settle through ADR

 Court guides in formulation of issues

 Documents are exchanged and a scheduling memorandum is signed.

In practice, court may order the parties to file a joint scheduling memorandum instead of appearing and conducting a conference
before a judge.

In Shay Kameo & 4Ors v Kenya Airways Ltd HCCS No. 151 of 2009, Justice Kiryabwire while dealing with scheduling
conference observed that;

―Parties are therefore expected to cooperate with the Court to sort out points of agreement and disagreement, the possibility of
mediation, arbitration and any other form of settlement. The practice in this Court and indeed in other jurisdictions is for the parties
and their counsel to work together before they come to the scheduling conference and prepare agreed trial bundles which in this Court
we call Joint Scheduling Memorandum (JSM) or sometimes joint memorandums. It is in the JSM inter alia where points of agreement
and disagreement are set out; issues for trial listed; documents agreed and not agreed; witnesses listed and the estimated trial time put.
There is a tendency at times because of the adversarial nature of our practice for parties not to follow through with the preparation of a
JSM. There was such difficulty in this case but to the credit of the parties eventually a JSM was prepared…‖

MEDIATION

Mediation is one of the forms of Alternative dispute Resolution. It is defined under Rule 3 of the Judicature Mediation Rules, 2013
to mean the process by which a neutral third person facilitates communication between parties to a dispute and assists them in
reaching a mutually agreed resolution of the dispute. The mediator can be a judge, a registrar, or a person with the relevant
qualifications and experience in mediation and chosen by the parties as listed in rule 9 (a-f) of the Judicature Mediation Rules. Under
the same rules, rule 16 provides that;

Where the parties resolve some or all the issues that are the subject of mediation, the parties should enter an agreement setting out the
issues on which they agree. The agreement under sub rule (1) should be in writing and signed by the parties. And the agreement
should be filed with the registrar, magistrate or authorized court officer responsible for mediation in the court.

The agreement filed with the registrar, magistrate or authorized court officer responsible for mediation under sub rule (3) shall be
endorsed by the court as a consent judgment. And where there is no agreement on all the issues subject to mediation, the mediator
should refer the matter to the court.

A mediator within ten days after concluding mediation submits to the registrar, magistrate or responsible officer a mediation report in
Form 3 in Schedule 1of the act.

Task 5 Identify and deal with in the ethical issues circumstances.

Reg. 2(1) of the Advocates (Professional Conduct) Regulations, SI 267-2 prohibits Advocates from acting for any person unless they
have been duly instructed either by the client or by an agent of the client. Instructions are formalized through an engagement letter.
Such agreement is envisaged under S. 50 of the Advocates Act Cap 267which provides that an advocate may make an agreement with
his or her client as to his or her remuneration in respect of any contentious business done or to be done by him or her providing that he
or she shall be remunerated either by a gross sum or by salary.

However, since the above facts show that there has been change of advocates, it is imperative to file a notice of change of advocates in
Court.

In Salvation Army V Uganda Land Commission Civil Suit No 284 Of 2009 court held that Without the notice of change of
Advocates filed on Court record, an advocate would not have any audience in the Court.

Regulation 7 of the Advocates (Professional Conduct) Regulations specifically protects information of clients from disclosure by their
advocates. The Regulation reads as follows:
―7. Nondisclosure of clients‘ information
An advocate shall not disclose or divulge any information obtained or acquired as a result of his or her acting on behalf of a client
except where this becomes necessary in the conduct of the affairs of that client, or otherwise required by law.‖

TASK TWO

2. Demonstrate how you would obtain the necessary documents believed to be in possession of Winnie Apio (HCCS No.
222/2020). Draft the relevant document you will need to use in seeking for those documents.

Where there are documents in the possession of the adversary party, the other party can apply for discovery inspection and
production of such documents.
Discovery refers to disclosure and inspection of documents as opposed to facts or as a procedure whereby one party to an
action must disclose to the other party, the existence of all documents which are or have been in his possession and which are
material in the action
The main aims of discovery are as to save costs and dispose of the matter fairly as affirmed
in Dresdner Bank v Sango Bay, No. 4 (1971). in Campaigne Financier v Peruvian Guano (1882) 11 QBD 55 of 63 , Brett
LJ emphasized that the documents must relate to the matter in question in action which would not only be evidenced upon any
issue but also which it is reasonably to suppose the action.

Application for the discovery of documents being provided under Order X r 12CPR which states that any party may without
filing any affidavit, apply to the court for an order directing any other party to the suit to make discovery on oath of the
documents, which are or have been in his or her posse in or power relating to the matter in the suit in the case of Turyatemba
& Ors v AG (2010) an application was made for the production, inspection and of the said documents which are within the
possession and power of the respondents and there was evidence on record to show that the respondents did not avail some of
the public documents in their possession .
Under Section 22 of the Civil Procedure Act Cap 71 provides that court may at any time either of its own motion or on
application of any party make such order as may be necessary or reasonable in all matters relating to the delivery and
answering interrogatories the admission of documents, and facts and discovery, inspection, production, impounding and return
of documents or other material objects producible as evidence.

To justify an inspection of documents, such documents,

 Must have been disclosed or referred to by a party`s pleadings or affidavit under a pleading suit.
 Relevant in determining of the issues between the parties
 Is not subjected to a privilege.
Just like discover and interrogatories, the object of a production and inspection process is to promote a speedy and fair
disposal of a suit at the nominal cost.

The defendant in HCCS N0. 222∕2020 Seeks more information such as that relating to,

 Marriage certificate
 The receipts for the funeral expenses,
 medical reports,
 post mortem report.

Order 6 rule 2 of the Civil Procedure Rules SI 71-1 requires a defendant to require a plaintiff to furnish him or her with further
and better particulars. The procedure is that such a request is made on the firm letter head and should specify on which
particular information the defendant seeks to be availed.

A court must be served with such a letter head and placed on watch in so far as parties corporate or don‘t corporate.

In relation to our facts, the plaintiff has started under paragraph 4(vi) that her claim is founded on death as cause of action and
seeks damages including special damages. No copies of the expenses have been annexed to the plaint or listed as a document.

A document is anything on which information of any description is recorded.

M∕S Kasongo Joel and Co. Advocates can make a humble request by letter to the plaintiff`s advocates to enable them inspect
and advise themselves on the way forward.

If there is no compliance with the request within the set down period of time, M∕S Kasongo Joel and Co. Advocates can take
further steps by serving the plaintiff a formal notice
O.10 R.15 of the Civil Procedure Rules provided for inspection of documents referred to in proceedings or affidavits. It states
that every party to a suit shall be entitled at any time to give notice to any other party in whose proceedings or affidavits
reference is made to any document to produce the documents for the inspection of the party giving notice.
O.10 R.16 of the CPR provides that the notice must be in writing in form 7 under appendix B to the rules.
Rule 17 of O.10 CPR provides for time for inspection by stating that the party to whom the notice is given shall within 10 days
from the receipt of the notice deliver to the party giving a notice stating time within three days of delivery of the notice at
which the documents maybe inspected. The notice shall be in form 8 of the appendix B to the rules.
Failure to reply to the notice, a party may apply to court and court will direct the inspections of those
documents.

Limiting Inspection
The party is not required to permit inspection of any category or class of documents that he or she considers could be
disproportionate to the issues in the case. However he/she must state that ground in his/her disclosure statement, it is not
necessary to give any supporting arguments but any other party may challenge the claim on application to court on specific
inspections.
The grounds must be justified in the following ways;
 a. The documents are of negligible probative value
b. The documents are of no or negligible relevance
c. Inspection is unnecessary for the fair determination of any of the issues in the case
d. To permit inspection will be onerous as it will involve extensive editing of a great deal of material if it is relevant.
e. The documents are confidential

Privilege from inspection

A document may be disclosable but a party may claim a privilege from inspection. This privilege however cannot be claimed
simply because the document is unfavorable. Privilege may take the form of legal professional privilege or privilege against
self- discrimination.

Privilege may also be on grounds of public policy.

Documents privileged on grounds of public policy
If producing a copy of the document would be injurious to the public interest, it may be withheld on grounds of public policy,
the judicial officer has to consider whether the withholding of the documents is necessary for the administration of justice.

Professional privilege
It is well known rule of law that communications between lawyers and their clients are confidential. Sir Richard Scott V.C in
Barrings Plc., Re [1998] stated that; Individuals should be able to consult their lawyers in certain knowledge that what they
tell their lawyers and the advice they receive from their lawyers whether orally or in writing will be immune to compulsory
disclosure purpose of legal professional privilege is to encourage free access to the legal profession by all persons. It is also
concerned with the fundamental human right of privacy guaranteed by Article 27 of the constitution.
According to the facts, the documents in possession of Winnie Apio can be obtained by virtue of S.22 of the CPA,O.10 R.15 &
16 of the CPR by writing a notice to him or where he refuses then apply to court for an order of inspection of those documents.

Documents
1. Form 7 Notice to produce Documents (Order X, rule 16)
2. Application for an Orders for Discovery and Inspection of Documents (Order X rule 12)

THE REPUBLIC OF UGANDA

IN THE HIGH OF UGANDA AT KAMPALA

CIVIL SUIT NUMNBER 222/2020

WINNIE APIO ................................................................PLAINTIFF

VERSES

ATTONEY GENERAL.......................................................

PC MAFUDU .....................................................................DEFENDANTS

CHAMBER SUMMONS

( under Order 10 Rule 24 CPR)

LET ALL PARTIES CONCERNED attend court in Chambers on the ----- day of --------------2020 at --------------------in the morning
or soon thereafter as counsel for the applicant shall be heard on application that;

1. The 2nd defendant make discovery on oath of the Marriage Certificate, Receipts for funeral expenses , Medical reports ,
Post mortem reports
 2. Costs of this application be provided for

This summons is taken out by M/s Kasango Joel & Co. Advocates for the applicant and issued at Kampala this 22nd day of November
2020

..................................

REGISTRAR

AFFIDAVIT IN SUPPORT

THE REPUBLIC OF UGANDA

IN THE HIGH OF UGANDA AT KAMPALA

CIVIL SUIT NUMNBER 222/2020

WINNIE APIO ................................................................PLAINTIFF

VERSES

ATTONEY GENERAL.......................................................

PC MAFUDU .....................................................................DEFENDANTS

AFFIDAVIT IN SUPPORT

I PC MAFUDU OF M/s Kasango Joel & Co. Advocates, 2nd Floor Kooki Towers (Opposite CitySquare), P.O.BOX 451, Kampala,
hereby take oath and state as follows;

 That I am an adult Ugandan of sound mind, the applicant herein, conversant with this action and swear this application in that
capacity.
 That the documents are in possession of the respondent
 That the documents are relevant in determination of the suit
 That there is a pending suit between the parties
 That the documents are relevant for attachment of justice, that‘s to say, the medical report, the post mortem report, the
marriage certicate..
 The receipts of the payments made to the respondent
 That the said documents be produced by the respondent for a fast and fair hearing.
 That it is in the interest of justice that the court grants this application.
 That whatever is stated herein is true and correct to the best of my knowledge and belief

Dated at Kampala this____________day of __________ 2020

Sworn by the said, PC MAFUDU

DEPONENT

Sworn before me
 ............................

COMMISSIONER FOR OATHS

Drawn and filed by:

M/s Kasango Joel & Co. Advocates,

2nd Floor Kooki Towers

P.O.BOX 451, Kampala,

NOTICE TO PRODUCE DOCUMENTS- FORM 7; Order 10 Rule 16

THE REPUBLIC OF UGANDA

IN THE HIGH OF UGANDA AT KAMPALA

CIVIL SUIT NUMNBER 222/2020

WINNIE APIO ................................................................PLAINTIFF

VERSES

ATTONEY GENERAL.......................................................

PC MAFUDU .....................................................................DEFENDANTS

NOTICE OF PRODUCTION OF DOCUMENTS

(UNDER ORDER X rule 16 Civil Procedure Rules , section 22 civil procedure Act)

Take notice that the defendants require you to produce for inspection the following documents referred in your plaint dated 18
January 2020.

1. Marriage Certificate
2. Receipts for funeral expenses
3. Medical reports
4. Post mortem reports
5. The birth certificates of the four children

M/S Kasango Joel and company advocate

2nd Floor Kooki Tower Opposite City Square

P.O.BOX 451,
Kampala.

TASK 3
i. How would you protect your client‘s interests in the circumstances?
ii. What is the procedure and documents?

An interlocutory judgment is provided for under O.9 r8 of the Civil procedure Rules Statutory Instrument No.71-1 and it is
only entered subject to the following pre-conditions being satisfied.
1. The suit must be by Ordinary plaint under O.4r1 O.6r2 and O.7
2. The claim in the plaint must be for pecuniary damages only or for detention of goods with or without a claim for pecuniary damages
Interlocutory Judgment applies in cases where the plaintiff is claiming for pecuniary damages which are not specific or ascertained
and or detention of goods. If a defendant fails to file a defense in such a case and the plaintiff has filed an affidavit of service within
provisions of O.9 r 5 Civil Procedure Rules the court may enter an interlocutory judgment against the defendant and set down the suit
for assessment of damages and the value of the goods. A final judgment and execution will issue in respect of the amount found due
by such assessment –O.9 r 8 Civil procedure Rules.

Both rules 6 and 8 of Order 9 are based on the fact that the defendant has failed to file a defence. The difference between these two
rules lies in the nature of the claim. Under rule 6 the claim is for liquidated damages, while under rule 8 the claim is for pecuniary
damages. Pecuniary damages require formal proof. Liquidated damages are stated in the plaint. Case of Valery Alia V Alionzi
(HCCS No 157/2010, court set aside an interlocutory judgment which was entered without proof before court that summons together
with the plaint had been served upon the defendant.

It is critical that when an interlocutory judgment is entered, the suit is set down for formal proof thus in the case of Concern
Worldwide V Mukasa Kugonza supra Court stated that a default judgment is entered where there is proof of service and the
defendant has not filed a defence within the specified time. Under rule 8, where the claim is for pecuniary damages, the rule requires
that an interlocutory judgment is entered and the suit set down for formal proof. In Hajji Asuman Mutekanga v Equator Growers
SCCA No. 7 of 1995, it was held that Where an interlocutory judgment has been entered in favor of the plaintiff, the question of
liability of the defendant is no longer in issue. What is in issue is the assessment of the quantum of damages.
National Social Security Fund versus Kisubi High School civil suit number 440 of 2011
HELD; Rule 8, allows the court to enter interlocutory judgment against the defendant where there is a claim for pecuniary damages
only or for detention of goods with or without a claim for pecuniary damages where no defence has been filed by the defendant, before
such interlocutory judgment is entered, there must be proof of effective service of summons and pleadings on the defendant and the
time within which the defendant is required to file a WSD must have lapsed; That the summons is an order of the court requiring the
defendant to file a defence within the prescribed time of 15 days and warning of the consequences of non-compliance with the filing
of a defence. It is a fundamental rule of justice that before anybody can defend himself or herself, he or she has to be notified of the
particulars of the claim against him or her. (Article 28). Therefore non-compliance with order 5 rule 2 of the Civil Procedure Rules
renders the proceedings an irregularity

An interlocutory judgment is not a final judgment but an interim judgment on liability therefore a party aggrieved with the
judgment is under an obligation either to comply with it or seek to set it aside in appropriate proceedings.
Kahumbu v National Bank of Kenya 2003) 2 EA 475
Held – A court order is valid and binding unless and until it is appealed against, amended or set aside.
The principle is that unless and until the court has pronounced judgment upon merits or by consent, it has power to revoke the
expression of its coercive power where that has been only obtained by failure to follow any rules of procedure. Therefore the
interests of our client M/S Moonlight can be protected in instances where the Judgment entered was obtained through failure
to follow the rules of procedure and this is by setting aside the interlocutory Judgment against him.

A judgment sought to be set aside must be passed pursuant to the preceding rules to r. 12 namely; a default judgment under O.9 r 6&7,
interlocutory judgments under O.9 r 8 and exparte judgment under O.9 r 11(2). Order 9 r 12 is wider than rule 27; rule 27 is a bit
narrower in its application.
DAPCB v Uganda Blanket Manufacturers [1973] LTD (1982) HCB 119
Held; Rule 12 of Order 9 has wider application than rule 27 thereof. Although the marginal notes to it referred on ex parte
judgment, it empowers a court to set aside any judgment passed in pursuance of any of the preceding rules of that order whether
judgment was ex parte or not. Similarly the courts discretion is unlimited as to reasons for setting aside a judgment.

The applicant must also prove that he or she was prevented by sufficient cause from entering appearance. O.9 r 12 is silent on the
grounds of setting aside implying that the court has unlimited and unfettered discretion to allow or disallow the application for setting
aside.

The Rule and remedy may be invoked by any person who is aggrieved by the judgment or decree including a third party
Ladak Abdulla Mohamed Hussein v Griffiths Isingoma Kakiiza SCCA 8 of 1995HELD; the rule is not restricted to parties to the
Suit but includes any person who has a direct interest in the matter, who has been injuriously affected.
ble
interest in the subject matter of the suit.

Proline Soccer Academy V Lawrence Mulindwa and Ors.

Held; for there to be an aggrieved person means that the matter must directly affect the applicant in some way, however small.
O.9 R12 does not define the grounds upon which a judgment can be set aside implying that it confers upon the court unfettered
discretion to either allow or disallow the application.

Despite the absence of a specified ground for the application under O.9 r 12, the court is guided by sufficient cause which is not
defined by the rules but means any good reason that prevented the applicant from filing a written statement of defense within a
requisite time. Jessy Technical Services Ltd & Anor v Ajay Industrial Corporation Ltd & Anor MISC. APPL. NO. 0617 OF
2012 AND MISC. APPLI. NO. 616 OF 2012
Held; Rule 12 gives the court wide discretion to set aside a judgment in default of filing a defence. Such a judgment is not on the
merits and is based on the failure to follow a procedural requirement of the law.

 The applicant has to prove that he or she was not served with the summons or if they were served the service was not effective
and never got to know of the pending suit against him. The burden of proof lies on the applicant to satisfy court that the
reasons advanced constitute sufficient cause to warrant setting aside of the judgment. The court normally considers the conduct
of the applicant before and after judgment and where there is a belated application the court is normally reluctant to allow it.
 The applicant must also demonstrate to court that he or she has a defense that merits adjudication through hearing. The
intended defense must raise triable issues of law and fact that merit adjudication.

In Emiru Angose V Jas Projects Ltd court set aside an exparte judgment after it was proved that there was no effective service
summons on the applicant. That service is to be effected on the defendant in person or an agent empowered to accept service. In that
case service on the receptionist was not service on a recognized agent. Our summons in the facts were served on the maid who is
not a recognized agent.
Makerere University v Zescom Technologies Ltd (MISCELLANEOUS APPLICATION NO. 432 OF 2013) [2014] Per Hellen
Obura;
In this case the applicant was never made aware of the suit because the respondent opted to serve an unauthorized person and so the
desired effect which would have been to file the necessary pleadings to defend the suit was not achieved. The summons was merely
stamped with the applicant‘s stamp but there was no signature of an authorized person acknowledging receipt thereof.
The SUMMONS TO FILE A DEFENCE on page 16 were received by Nyakato Abwoli (for and on behalf of The Editor in
Chief, Moonlight Publications Ltd & Moonlight Publications Ltd).
(Maid) on 18/01/2021 at 4:22pm. The service is to be effected on the defendant in person or an agent empowered to accept service.
In that case service on the maid was not service on a recognized agent.
On behalf of our client the applicant in this case who is Moonlight we prove that there was no service of summons and pleadings.
Therefore such service was ineffective and not in compliance with the law.
Procedure.
The applicant can file an application seeking the following orders.
 Setting aside of the interlocutory judgment in the main suit.

Documents;
An application for setting aside an interlocutory judgment.
Draft written statement of defence.

DRAFTING DOCUMENTS
The application is brought by a notice of motion supported by a valid affidavit. O. 52 rule 1. Together with a summary of
evidence

THE REPUBLIC OF UGANDA

 IN THE HIGH COURT OF UGANDA AT KAMPALA

(CIVIL DIVISION)

MISC. APPLICATION. NO. __________ OF 2021

(Arising from Civil Suit No. 177 OF 2020)

M/S MOONLIGHT PUBLICATIONS LTD::::::::::::::::::::::::::::::: APPLICANT

VERSUS

DR. AGGREY MALOBA::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

NOTICE OF MOTION
(Under S.14 JA, S.98 CPA, 0.52 r. 1& 2 , O.9 rule 12 CPR SI 71-1)

TAKE NOTICE that this Honorable court shall be moved on the ________ day of ________ 2021 at ________ O‘ clock in the
fore/afternoon or soon thereafter as counsel for the Applicant herein can be heard on an application for orders that;

 The interlocutory judgment in CIVIL SUIT NO 177 OF 2020 entered against the applicant be set aside.
 The applicant be given time to file a defence
 The cost of this application be provided for.

AND TAKE FURTHER NOTICE that the grounds for this Application are more particularly contained in the Affidavit of the
managing director of Applicant which shall be considered and relied on at the hearing hereof but briefly they are:

 The Respondent instituted CIVIL SUIT NO. 177 OF 2020 against the Applicant.
 The Applicant was not served with the Summons to file a defence in CIVIL SUIT NO. 177 OF 2020 but the same proceeded
on a false of affidavit of service of one …………………………...
 That the Applicant was prevented from sufficient cause from contesting the entire claim of the Respondent
 The Applicant has a good defence /answer to the entire claim of the Respondent in CIVIL SUIT NO. 177 OF 2020.
 The applicant will suffer irreparable damage and gross injustice if the interlocutory judgment is not set aside since a
decree might be extracted and execution might ensue
 That it is just, fair and in the interest of justice that this application be granted.

DATED at Kampala this …………………day of February, 2021.

_________________________

COUNSEL FOR THE APPLICANT

Given under my hand and seal of the court this……………..day of………….2021

………………….

REGISTRAR
DRAWN &FILED BY:

M/S Firm B7 &Co. Advocates

Plo22 Main Street, Po Box 20, Lira

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(CIVIL DIVISION)

MISC. APPLICATION NO. __________ OF 2021

(Arising from Civil Suit No. 177 OF 2020)

M/S MOONLIGHT PUBLICATIONS LTD::::::::::::::::::::::::::::::: APPLICANT/DEFENDANT

VERSUS

DR. AGGREY MALOBA::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT/PLAINTIFF

AFFIDAVIT IN SUPPORT OF NOTICE OF MOTION

I, MOSES OJOK of M/S Firm B7 & Co. Advocates, Po Box 20, Lira do hereby take oath and solemnly state as follows:-

 That I am male adult Ugandan of sound mind, the Managing Director of the applicant in this matter and swear this affidavit in
that capacity.

 That the respondent sued the applicant in civil suit No 177 of 2020 in the High Court of Uganda at Kampala.

 That the applicant was not aware of the existence of the above suit as was not served with summons. And consequently has
come to learn that summons had been served on Nyakato Abwooli, a maid who never communicated to the applicant.

 That the applicant has only been served with an interlocutory judgement on 08/02/2021. A copy of the advertisement is
attached and marked annexure ‗A‘.

 That on the 13th January, I rushed to the High Court Civil Division Registry to investigate the matter and for the first time
found and obtained copies of a Plaint, Affidavit of service, Application for interlocutory Judgment against the
Applicant/Defendant and Interlocutory Judgment against the Applicant in High Court Civil Suit No.177 of 2021.

 That I referred the said documents to my Lawyers immediately for advice and they have informed me, which information I
believe to be true, that High Court Civil Suit No.177 of 2021 was filed against the Applicant on the 18th January, 2021.

 That my Lawyers have further informed me, which information I believe to be true, that the Applicant was never properly
served with the summons to file a Defence.

 That owing to this, the Applicant did not file a Defence to High Court Civil Suit No.177 of 2021 resulting in the Interlocutory
Judgment therein.

 That in all fairness the Applicant ought to be afforded an opportunity to defend the main suit to which it has a good defence to
the Suit and a copy of the written statement of defence is attached hereto and marked annexure ‗B‘

 That it is in the interest of justice and equity that the application for leave to appear and defend is allowed so that the suit is
heard and determined on its merits.

 That whatever is stated hereinabove is true and correct to the best of my knowledge and belief.
Sworn at Kampala this ______ day of …………2021 __________

By the said MOSES OJOK.

DEPONENT

BEFORE ME:

___________________________

A COMMISSIONER FOR OATHS

DRAWN &FILED BY:

Firm B7 &Co. Advocates

Plot 22 Main Street,

Po Box 20

Lira

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

HCCS NO. 177 OF 2020

Dr. AGGREY MALOBA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFF

VERSUS
1. M/S MOON LIGHT PUBLICATIONS LTD
2. THE EDITOR IN CHIEF MOONLIGHT PUBLICATION LTD::::::::::::::::::::::::::DEFENDANTS

1st DEFENDANT’S WRITTEN STATEMENT OF DEFENCE

Save as herein expressly admitted the Defendant deny every allegation of fact expressed in the plaint as is each was set forth and
traversed seriatim.

 The 1st Defendant‘s address for purposes of service is M/S Firm B7 & Co. Advocates, Po Box 20, Lira
 Paragraph 2 of the plaint is admitted. The defendant is a private limited liability company duly incorporated in Uganda under
the company Act 2012, carrying on a business of newspaper reporting, printing, publication and distribution in Uganda with
registered offices at Plot 44 Kanjokya street Kampala.
 That according to the Affidavit of service deponed by Bugusha Nicholas, he states under paragraph 2 that he received copies of
summons and plaint only, this is further evidenced under paragraph 4 where he states that the Maid received and signed on the
summons and copy of the plaint. This literally means other relevant documents were not served to the 1st defendant therefore
there was no effective service of summons.
 It is denied that the plaintiff has any claim against the 1st Defendant as set out in paragraph 3, 4, 6, 7,8 and 9 of the Plaint or at
all.
 In response to paragraph 4,5 and 6 of the Plaint, the 1st Defendant shall aver as follows;
5.1. That the 1st defendant is not aware of any such Publication
o That the 1st Defendant did not even receive the alleged Summons to its premises and nobody received it at the work
according to the affidavit of service, the deponent served the Maid of the defendant, this is not the authorized agent of the
defendant who is a corporation the authorized agent to receive summons on behalf of the company is the company
director, company secretary or a principal officer. Therefore, service was ineffective to the defendant he does not state
anywhere that he served the defendant, or that he was at the address of the 1st defendant.
  The 1st defendant admits the jurisdiction of this Honorable court. WHEREOF the 1st Defendant prays that court struck off the
name of the 1st defendant from the Plaint and the suit be dismissed with costs against the Plaintiff.

DATED AT Kampala this 22nd day of February 2021

M/S Firm B7 & Co. Advocates, Po Box 20, Lira

Lodged in the Registry of this 22nd day of February 2021

…………………………………..
REGISTRAR

DRAWN &FILED BY:

Firm B7 &Co. Advocates

Plot 22 Main Street,

Po Box 20

Lira

Task 4:

Application for directions

Summons for Directions are provided for under 0.11A of the CPR as amended.

Background:

As a way back as 1994, the Supreme Court in Paulo Lutalemwa Kakooza v Attorney General SCCA

NO.06/1993 lauded the significance of summons for directions as an effective pre-trial procedure that would be the most practical methods of
ensuring effective trials.

In the words of H.G Platt (JSC) (as he then was), court observed thus;

―…We venture to suggest that it is now necessary that the procedure under summons for directions is appropriate.‖

Under this procedure, the court in can call for parties and set down the issues for trial, to order discovery to be given of documents to be relied
upon and interrogatories to be issued. It may be possible in this way to make sure that basic documents such as…. if any, are ready for use at the
trial…

The new Order brought by the amendment of the CPR require that before a suit, instituted by a plaint goes for scheduling and subsequently its
trial, the court must provided an occasion to the parties to ensure that;

(a) Any preliminary matter which would have been dealt with by an interlocutory application and has not been dealt with such as matters
covered under Form B, thereof

[Application for consolidation of suits, order to transfer suits partly settled to magistrate courts where the pending claim would be in their
jurisdictions, amendment of pleadings, seeking further and better particulars, discovery and inspection of documents, nature of evidence and how it
should be conducted, admissions, attendance of witnesses, stay of proceedings, security for costs, attachments before judgment, parties to suits,
issue and service of summons prosecution of suits and adjournments, withdrawal of suits and adjournments, suits by paupers, temporary
injunctions, time, motions and applications etc]
(b) Adopt a course which will secure, just, expeditious and economical in the disposal of suits.

Accordingly, a plaintiff is enjoined within 28 days from the date of the last reply or rejoinder referred to under 0.8 r. 18 (5) CPR to file summons
for directions (0.11A r.1 (2) CPR). The Procedure/ form to take is Form 14 A, under Schedule 2, Part IV.

Such summons must be served and a return made to court within 14 days from the date of its issue

(0.11A rule 1(3) CPR)

A plaintiff who defaults on taking this procedure will have caused his suit abate, although he can file a fresh suit in court subject to the law of
limitation (0rder11A r.1 (6) & (7) CPR).

The strict general condition on the plaintiff to commence summons for Directions is subject to the following exceptions:

(i) Where a plaintiff or counterclaimant has applied for a default judgment or a decree.

(ii) Where an application has been made to dismiss a suit under 0.6 r.29 & 30 CPR; or 0.15 r .2 CPR

on points of law.

(iii) Where an application has been made to seeking for an order to account under 0.22 CPR.

(iv) Where there is a pending application to transfer a suit to another Division or Tribunal.

(v) Where a matter has been referred to an arbitrator.

A party of whom summons for directions have been addressed as right to write any matter in response to the summons which he
desires the court to handle under the same summons, provided it brings it to the attention of court in a period not less than 7 days to
the hearing of the summons (0.11A r.6 (1) CPR)

Court has a duty whenever summons are coming for hearing for the first time to consider, if it is possible to deal with all matters, or to
consider adjourning all or any of such matters, or deal any remaining interlocutory application (0.11 A r.2.r (1) CPR)

After the disposal of an application for direction, parties are enjoined to file their trial bundles as a condition precedent to conducting
conference (0.11 A r.7 (2) CPR)

Compliance with any order given by court on summons for directions shall be observed within 45 days after which, plaintiff‘s suit
shall be fixed for hearing (0.11A r.8 CPR)

The role of parties at mediation

Mediation is a form of Alternative Dispute Resolution that is premised under rule 2 of Order 12 of the Civil Procedure Rules
Statutory Instrument No. 71-1.

Rule 2 of Order 12 of the Civil Procedure Rules SI No. 71-1 provides that where the aims in conducting scheduling conference is not
realized, and court sees that the case has a good potential for settlement, it shall order alternative dispute resolution before a member
of the bar or bench named by the court.

Alternative dispute resolution, according to rule 2 (2) of Order 12 of the Civil Procedure Rules SI no. 71-1, should be conducted
within 21 days from the date of issuing the order of alternative dispute resolution and it may be extended for a further 15 days on
application to court with sufficient reasons.

Mediation, as a form of Alternative Dispute Resolution, is used by Courts in employment related disputes.

Before discussing the role of the parties at mediation, it is pertinent to state that there are three major parties in a mediation exercise;
the Mediator, and the two disputing parties. The three major parties to the mediation exercise should be looked at distinctly as regards
their role in the mediation exercise.
The mediator‘s general role is to facilitate discussions between the disputing parties in order to negotiate a resolution to a dispute. The
mediator therefore has the following role to play in mediation;

a) A role to have commitment from both parties to mediate in good faith.

b) A role to determine the framework for the parties for the process of mediation to be conducted, with agreement from the
parties.
c) A role to receive all relevant information and documentation from all parties in a timely fashion.
d) A role to thoroughly explain the process of mediation to the disputing parties and confirming that they are aware of their roles
and responsibilities.
e) A role to remain impartial and neutral.
f) A role to keep information under the process of mediation confidential.
g) A role to affirm that all the parties to a mediation are able to effectively and equitably mediate by confirming that a decision
maker for each party or counsel for both parties are present at the mediation.

The role of each party to mediation includes the following;

a) Both parties are to openly and honestly discuss and negotiate a solution to the dispute.
b) The parties have the role to select mediation as the appropriate method of dispute resolution.
c) The parties have a role to select an impartial and neutral mediator to facilitate discussions.
d) The parties have a role to keep all information pertaining to the mediation confidential.
e) The parties have a role to provide input into the mediation process design and ground rules.
f) A role to sign the agreement to mediate, and participate in good faith.
g) A role to honestly and openly share relevant information with the mediator and other parties.
h) A role to generate options concerning the dispute settlement.
i) A role to agree to an extension of statutory deadline if the case is formerly before Court. The statutory deadline in Uganda
is 21 days but an additional 15 days can be added on application to Court with satisfactory reasons for extension.

Conclusively, mediation as a form of Alternative Dispute Resolution is advantageous because it minimizes on the expenses
associated with the processes of litigation especially where a case could be settled through amicable dialogue between the
disputing parties.

How to conduct a scheduling conference.

The Civil Procedure (Amendment) Rules 2019 and the Civil Procedure Rules Statutory Instrument Number 71-1 both provide for
scheduling conference.

Rule 1 of Order 12 of the Civil Procedure Rules SI NO. 71-1 provides that the purpose of organizing a scheduling conference is to
sort out points of agreement and disagreement, the possibility of mediation, arbitration and any other form of settlement. The
scheduling conference come after the order on delivery of interrogatories and discoveries according to paragraph (a), sub-rule (1),
rule 1 of Order 12 of the Civil Procedure Rules SI No. 71-1.

The Civil Procedure (Amendment) Rules, 2019 provides a further explanation about the scheduling conference in its second schedule
as follows;

Paragraph 1 provides that at least 7 days before the date agreed upon for meeting between counsel for the parties to the suit, counsel
shall exchange copies of or a list of all documents he/she intends to rely on at the trial of the suit and draft scheduling memoranda or
proposals where applicable by email, telephone or other media on proposed points of agreement and disagreement under Order 12
rule 2 of the Civil Procedure Rules SI No. 71-1.The same paragraph goes on to say that the communication should specify in writing
the documents a party intends to rely on but not in their possession and the documents he/she does not intend to contest.

Paragraph 2 provides that the Advocates and the parties should agree to meet on an appointed day to exchange drafts and discuss by
electronic media with the expected outcome of the discussion being a joint conferencing memorandum with the following outline;

a) Material facts of the suit which are agreed to or disclosed by the pleadings of both parties
b) Any other agreed material and additional facts
c) Summary of material facts in support of the plaintiff‘s case but not admitted by the defendant
 d) Summary of material facts in support of the defendant‘s case but not admitted by the plaintiff
e) List of documents relied on by the plaintiff and defendant respectively agreed to be exhibited in evidence without prejudice to
objection on relevance or weight of evidence or any other just ground for the exclusion of evidence
f) List of documents of plaintiff contested by the defendant and list of documents of defendant contested by the plaintiff
g) List of witness of the plaintiff and defendant
h) The agreed issues for trial
i) Any points of law or matters that may be resolved without adducing evidence
j) Any interlocutory matters to be resolved or agreed upon (i.e. temporary injunctions, stay of proceedings, execution etc.)
k) Estimated time for trial
l) Whether interpreters are needed, for which particular witness, and in what language?
m) Whether Alternative Dispute Resolution is possible and the kind of Alternative Dispute Resolution preferred (i.e. Mediation or
Arbitration) is there an agreement with an arbitration clause?

Paragraph 3 provides that after the discussion in paragraph 2 each party to the suit shall produce a minimum of 5 copies of documents
intended to be produced in support of their case and hand them over to counsel agreed upon who will file the joint trial bundle
(plaintiff‘s bundle and defendant‘s bundle). It further states that these copies are intended to be used as; 1) court copy, 2) plaintiff‘s
copy, 3) defendant‘s copy, 4) witness‘s copy during trial and, 5) an additional copy for court use at the trial.

Finally, paragraph 4 states that the trial bundle and the scheduling memorandum shall be filed in court at least 7 days before the pre-
trial conference date.

Preparing a witness statement

Witness statements are meant to represent the evidence of the witness in chief

a) They should contain a formal heading within the title of the proceedings and in the top right hand corner should state the party
on whose behalf they are made, the initial and surname of the witness, the reference of the exhibits included and the date when
they were made.
b) The opening paragraph should indicate the occupation of the and if relevant show the position in which the witness serves, the
name of the employer and illustrate whether he or she is a party to the proceedings
c) The text of the witness statement should preferably be in the witness‘ own words expressed in 1 st person, follow chronological
sequence of events and each paragraph should be confined to a distinct portion of the subject.
d) It should also state sections of its content that are made from the witness‘ knowledge and should state the sources of any
matters that the witness may have knowledge about
e) A witness statement should be securely bound in a manner that will not hamper filing and if not securely bound then each page
should bear the claim number and initials of the witness.

Trial bundle

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(CIVIL DIVISION)

CIVIL SUIT NO.177 OF 2020

DR.AGGREY MALOBA==================================PLAINTIFF

VERSUS

1.M/S MOONLIGHT PUBLICATIONS LTD

2.THE EDITOR IN CHIEF MOONLIGHT PUBLICATION

LTD==================================================DEFENDANTS

INDEX page

a).PLEADINGS………………………………………………………………………2

i. Plaint………………………………………………………………………….2

ii. Written statement of defense……………………………………………………………………….6

iii. Mediation report……………………………………………………………………………..9

iv. Joint scheduling memorandum……………………………………………………………………..12

b).EVIDENCE………………………………………………………………………………..15

i. Witness statement……………………………………………………………………………..15

ii. Annexure and exhibits…………………………………………………………………………………..17

An application seeking for directions deemed appropriate

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(CIVIL DIVISION)

CIVIL SUIT NO.177 OF 2020

DR.AGGREY MALOBA==================================PLAINTIFF

VERSUS

1.M/S MOONLIGHT PUBLICATIONS LTD

2.THE EDITOR IN CHIEF MOONLIGHT PUBLICATION

LTD==================================================DEFENDANTS
 SUMMONS FOR DIRECTIONS

(Order XIA, Rule 1 CPR)

LET ALL PARTIES CONCERNED attend the Registrar in Chambers in High court, Civil Division at Kampala on the……..day
of……2021 at …………O‘clock in the forenoon/afternoon on the hearing of an application for directions in this action, that:

1. The parties file a joint scheduling memorandum within 14 days or such other time as maybe convenient to or prescribed by
court.
2. The parties prepare and file respective witness‘s statements within 14 days or such other time as maybe convenient to or
prescribed by court.
3. The parties prepare and file trial bundles within a period of 7 days or such other time as maybe convenient to or prescribed by
court.
4. The suit be fixed before the Trial Judge for a scheduling conference within 45 days from issuance of summons for directions
unless the time is otherwise extended.
5. The costs of this summons be in cause.

Dated this………….day of…………..2020

………………………………………………….

COUNSEL FOR THE PLAINTIFF

To ;

1.M/S MOONLIGHT PUBLICATIONS LTD

2.THE EDITOR IN CHIEF MOONLIGHT PUBLICATION LTD

This summons was taken out by M/s Kasango Joel & Co. Advocates for Plaintiff.

GIVEN UNDER my Hand and Seal of the High Court Civil Division this……………day of……………..2021.

…………………………………………..

DEPUTY/ REGISTRAR

Extracted by;

M/s Kasango Joel & Co. Advocates

2nd floor Kooki Towers

P.O. BOX 451, Kampala