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BM's insights of post filing & other processes preceding handling of suits

Chapter · October 2022

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 BM’s insights into post filing but preceding hearing procedures.

The week (module) deals with procedures after institution of suits but preceding their hearing.

The week builds on the foundation laid during the first week (module) where we dealt with:-

 interviewing of clients,
 taking instructions
 identification of causes of action
 parties
 pre-action notices
 joinder of parties and causes of action
 remedies
 anticipated defences, limitation periods and bars to institution of suits
 civil jurisdiction of courts
 modes of commencement of suits.
 Drafting of pleadings (plaints)
 Instititution/filing of suits.

The topic covered under this 2nd Week of CL include:

1. Intervention as counsel in an existing suit.

2. Dealing with problematic summons such as;
(a) Improper set of summons extracted and served.
(b) Expired summons before service of process.
(c) Summons directed against a wrong person.
3. Defences/replies/answers to suits/claims.
(a) Non-conditional and conditional defences.
(b) Technical and non-technical defences.
(c) General and specific defences.
(d) Plausible and sham defences.
(e) Defences containing admissions (partial & full admissions)
(f) Defences containing counter –claims/setoffs.
4. Amendment of pleadings.
5. Interrogatories, inspection and discovery of documents.
6. Default, interlocutory, ex-parte judgments/decrees and judgments on admission.
7. Conditions for setting aside default judgments/ex-parte judgments and decrees.
8. Summons for directions.
9. Mediation hearing.
10. Scheduling conference.
11. Preparation of witness statements.
12. Trial bundles.

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The above topics will be taught in workshops 1 & 2; respectively.

We are lifting the facts we started with, under the 1st week with necessary modifications.

Workshop One (01)

Learning outcomes.

1. To explain the various principles regarding processes subsequent to institution of suits

but preceding their hearing such as;
(a) Service and non-service of summons.
(b) Dismissal and abatement of suits.
(c) Obtaining uncontested judgments/decrees.
(d) Defences/answers to suits/claims.
(e) Amendment of pleadings.
2. Effect joint counsel or change of instructions from one advocate to another.
3. Obtain default and ex-parte judgments/decrees as well as pre-hearing
dismissal/abatement of suits.
4. Effect amendment of pleadings within and outside the statutory periods.
5. Drafting appropriate documents regarding procedures under 2-5 above.
6. Identify and deal with ethical issues.

Workshop organization.

Workshop 1 has been segmented into 5 parts for easy management vis 1A – 1 E.

1A:

Before you is a one Mukisa George, a co-plaintiff under HCCS No. 167/2020. He is raising
dissatisfaction about their counsel’s conduct of the progress of the suit in court. They feel
counsel Nambalirwa Jeane is either too slow or too busy. They have instructed you to get on
board and have already made a substantial part payment towards your instruction fees.
Meanwhile, despite service on the defendants, only the 2nd Defendant namely Ndege Moses has
filed a defence. There is an affidavit of service on court record and a copy thereof availed to you
in proof of service on the two defendants.

You are required to;

1) Take steps and intervene as counsel for plaintiffs in HCCS No. 167/2020.
2) Advise on remedies available against the defaulting M/s Multiple Ltd who has never
filed her defence.
3) Advise on the propriety of the pleadings in the plaint filed before court.
4) Draft the necessary documents in respect of;
- Joint instructions/change of advocates,

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 - The remedies suggested against the 1st Defendant.
5) Re-draft/ amend the plaint.

Laws applicable:

1…..

2…..

Task No. 1.

Intervention as counsel for plaintiff.

This can either be upon filing a notice of joint counsel to court or one of change of advocates.
Mere acceptance of instructions is not enough. A plaint must state inter alia the plaintiff’s
address of service (O. 7 r. 1 (b) CPR; See paragraph 1 of appendix 1).

Until a notice of joint counsel or change of advocates if filed in court, the recognized
agent/advocate of the plaintiff for purposes of service and court appearances is M/s Nambalirwa
& Co. Advocates (O. 3 r. 1 & 4 CPR).

Purpose of filing notice of joint counsel/change of advocates:

1. It gives clarity to court and other parties on address of service and legal representation
in respect of the particular party.
2. It saves the outgoing advocate time to go to court in a matter where such advocate no
longer has instructions.
3. It also saves counsel the embarrassment of clashing at court with fellow counsel over the
same client.
4. It clothes the instructed counsel with authority to take fully control over the conduct of
trial and bind a client on decisions taken by him such as admissions save for those made
without prejudice, settlement, compromise and withdrawal of the suit (Stephen Kasozi &
3 Ors v Peoples’ Transport Services Ltd [1993] III KALR 80; BM Technical
Services v Francis Xavior Rugunda [1999] KALR 821,823)

Problematic summons:

 A summons is a court document in which a court expresses its command against a party
to take the required step. Most times summons are prepared by counsel alongside with
pleadings.
 The qualification for a proper summons is that;
- it has to be in a duplicate copy,
- signed by a judicial officer,
- dated, and

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 - sealed by a competent court (O. 5 r.8 CPR).

A summons to file a defence shall be accompanied by;

- a copy of the plaint,

- summary of evidence,
- list of witnesses,
- list of documents and list of authorities (O.6 r. 2 CPR)
(a) Improper set of summons.
- These do not correspond with the appropriate form on a given pleading.
- As a general rule, a party served with improper summons must take the
appropriate step in time otherwise any objections may merely serve as grounds for
extension of time within which to do so.
- The appropriate steps to take include;
(i) File a defence within the stipulated time; or
(ii) Make a conditional appearance by giving a notice of intention to defend the
suit and thereafter file a formal application setting out the reasons or
irregularity in the summons and seeking an order that the same to be set
aside or taken off the file (O.9 r.3 CPR). The application must be filed within
the required time for filing the defence.
(b) Expired summons before service.
- Summons are required to be served within 21 days from the date of issue. After
such time they expire.
- This as well strips the court of the jurisdiction to require the defendant’s court
attendance on them. In such cases, the suit becomes open to a dismissal without
notice to the plaintiff. (O.5 r. 2 (3) CPR; Godfrey Rwabuganda v Namuddu
Bitamisi CACA No. 87/2010).
- The exception is where fresh summons have been taken out (renewed), and the
time within which to serve has been extended (O.5 r.2 CPR).
(c) Summons directed against a wrong party.
- While this could be as a result of an honest mistake on the part of the one who
prepared the summons, such person named and served cannot sit back to grumble
quietly.
- He must file a defence within the stipulated time and then give notice of
challenging his inclusion to the suit.

Defences/Replies/Answers

A defence is a written plea made against the plaintiff’s statement of claim.

(a) Non-conditional and conditional defences.

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 - A non-conditional defence is one made under an express right to do so, such as
under a suit commenced by an ordinary plaint (O. 8. r. 1 & O. 9 r. 1 CPR).
- A conditional defence is one not made as of right but filed after a defendant has
satisfied a condition precedent such as; proof of a triable issue, deposit of an
admitted sum of money or any other security as may have been ordered by court.
Claims under O.36 r. 2 CPR usually give rise to such conditional defences.
(b) Technical and non-technical defences.
- A technical defence is premised on a point of law. It ought to be explicit in such
regard. Examples are defences on limitation periods, res judicata, lack of locus
standi, lack of cause of action, estoppel, or any other immunity expressly provided
by law.
- Non- technical defences are those intended to address facts raised by the adverse
party’s pleading. These may be general or specific. A general defence is one
which lack specificity and instead delve into evasive denials (O. 6 r. 10 CPR).
- A good defence must be specific and thus traverse each fact raised in the adverse
pleading specifically.
- To traverse means to deny the allegations in the plaint. Any allegation not
specifically traversed is deemed admitted (O.6 r.8 & O.8 r. 3 CPR).
- General defences render such a pleading liable to be struck out, unless amended.
- They do not promote fairness but are a recipe for surprise attacks.
(c) Plausible and sham defences.
- Plausible defences are those which manifest merit on the face of it by giving
justifiable responses to every allegation of fact raised by the claim.
- They ipso facto make a court bound to hear the matter and determine all issues
raised therein.
- Sham defences are devoid of merit. They are filed for the sake of it.
- They are usually made in bad faith, dishonestly, and to delay litigation. They
border on an abuse of process. Courts are seized with jurisdiction to strike them
out.
(d) Defences containing admission.
- An admission is an unequivocal acknowledgment of liability made by a defendant
or his authorized agent.
- It must be relevant to the dispute at hand. Where the same is made in writing, a
party making it must have signed the document purporting to express it under a
free atmosphere devoid of duress or undue influence (O.13 r.1 CPR).
- An admission rightly made, shortens the trial/litigation process as it gives rise to
an instant judgment. (O.13 r. 6 CPR).
- In law, an admission is treated as the best evidence against its maker (Haj
Asuman Mutekanga v Equator Growers (U) Ltd SCCA No. 7/1995).

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 (e) Defences containing setoff/counter claims (O.8 r.2 CPR).
- A set-off is a monetary claim set up by a defence, to a claim contained in a plaint
whilst a counter claim is in fact a claim by the defendant (not necessarily
monetary) by the defendant against the plaintiff in the same proceedings.
- The life of a set-off revolves upon the plaintiff’s claim. If a plaintiff’s suit is
terminated, the set-off abates.
- Secondly, whereas a plaintiff may make no response to a set-off, he must reply to
a counter claim otherwise judgment may be entered against him on it.

Contents of a good defence:

1. In his defence, the defendant must make a point by point response by stating-
(a) Which of the allegations in the particulars of plaint he denies;
(b) Which allegations he is unable to admit or deny, but which he requires the plaintiff to
prove; and
(c) Which allegations he admits.
2. Where the defendant denies an allegation-
(a) The denial must be explicit and accompanied with his reasons for doing so; and
(b) If he intends to put forward a different version of events from that given by the
plaintiff, he must state his own version. This is more so when dealing with allegations
of causation and mitigation of loss.
3. A defendant who-
(a) fails to deal with an allegation; but
(b) has set out in his defence the nature of his case in relation to which that allegation is
relevant, shall be taken to require that allegation be proved.
4. Where the claim includes a money claim, a defendant shall be taken to require that
any allegation relating to the amount of money claimed be proved unless he
expressly admits the allegation.
5. Subject to paragraphs (3) and (4), a defendant who fails to deal with an allegation
shall be taken to admit that allegation. [The rule of implied admission]
6. Defence of limitation. A defendant who raises this defence must give detail of the
expiry of the relevant period that he is relying upon.
7. If a defendant is defending a suit in a representative capacity, he must state what
that capacity is.

Filing a defence out of time

There are two practical ways of doing this-

 This may require the consent of counsel for the plaintiff, if the delay arises from non-
compliant with the period set down by the rule.

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  But where there is a court order requiring such filing within a given period and the
defendant has defaulted, the defendant must seek leave of court to enlarge time for doing
so.

Reply to a defence.

 There is no corresponding rule on admission where a plaintiff makes no reply to a

defence.
 The exception to this general rule is where a plaintiff is served with a defence containing
a counterclaim.

Amendment of pleadings.

Court to allow it at any stage of the proceedings at the instance of either party on terms that are
just (S. 100 CPA & O.6 r. 19 CPR)

Rationale:

To enable parties address insufficiency or defects in pleadings occasioned by inadvertent

mistakes or belated access to relevant information supporting a claim or defence.

Purpose:

To enable court effectually determine the real questions in controversy between the parties.

…………………………………….

Workshop One (01)

Task 1…… covered

Task 2 (a):

Determine the remedies available to the plaintiff against M/s Multiple Ltd.

By affidavit of service of Bwambale Nicholas, the summons to file a defence dated 4th
November, 2020 was served on this defendant through a one Nakato Fiona, on 5th November,
2020 (Appendix 2, refers).

A defendant once served is required to file her defence within 15 days from the date of service.
(O.8 r. (1) CPR).

Such defence must be in writing and lodged in the same court where the suit was filed. It must
contain a Registrar’s/ magistrate’s certificate as to the date when it was filed (O. 9 r. 1 (1) CPR).

The 15 days lapsed on 19/11/2020 and no defence has since been filed. As of now, she is outside
the time schedule by 4 days (O. 51 r. 8 CPR).
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The plaintiff is entitled to a default judgment on the liquidated sum under O. 9. r. 6 CPR as well
as an interlocutory judgment under O. 9. r. 8 CPR.

The effect of these judgments is;

(i) To extinguish all issues as to the defendant’s liability.

(ii) That a defendant cannot obtain a stay of execution of a decree passed against him
until the defeault/interlocutory judgment is set aside, and
(iii) Will entitle the plaintiff to fix a suit for formal proof of general damages.

Default and interlocutory judgments are entered by the Registrar on a written application made
on a firm letter head confirming evidence of service and default to file a defence within the
statutory period (O.50 r.2 & 3 CPR).

2 (b)

Determine the propriety of the plaint already filed in court.

A plaint is a pleading and its propriety is assessed on its compliance with the rules governing this
particular pleading, viz (O.7 r. 1 CPR, O. 6 r. 2 & 3; & O. 7 r. 14 CPR).

(i) Name of court. A plaint shall state the court. The plaint under appendix 1 states the
name of the court as, “IN THE HIGH COURT OF MASAKA…”; hence a wrong
name… as no such court exists (See: O.7 r. 1 (a) CPR & Art. 129 (1) (c) of the
Const’n which provides for… the High Court of Uganda…).
(ii) 2nd Plaintiff improperly joined on the suit. The general rule is that no suit shall be
defeated for … misjoinder of parties (O. r. 9 CPR). According to material facts
settting out a cause of action under paragraph 4 of appendix 1, and the contract of
which the claim is premised, the 2nd Plaintiff has failed to disclose any cause of action
against the defendants, nor any locus standing in the matter. Unless these defected are
remedied through an amendment, the defendants have a number of remedies
including:
- An order to strike out his name with costs (1 r. 10 (1) CPR & o. 1 r. 13 CPR).
- An order to dismiss his suit against her for lack of locus standi & failure to
disclose a cause of action (O. 6 r. 28 & 29 CPR; O. 6 r. 30 CPR & o. 7 r. 11 (a)
CPR).
(iii) The plaint offends rules of pleadings in so far as;
- A copy of the written contract mentioned under paragraph 4 (ii) of the plaint is
not attached thereto (O. 7 r. 14 CPR & O.7 r. 18 CPR)
- Failure to set out particulars of special damages.
- Failure to set out particulars of negligence in the absence of an alternative plea
of res ipsa loquitor (O.6 r. 3 CPR)

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3. Re –drafting (an amended plaint)…. Highlight or underline all changes introduced in the
plaint.

1 B)

1. Possible defences for M/s Multiple Ltd:

(a) Technical defences:
- (i) Non –existence of court where the suit was filed.
- (ii) 2nd Plaintiff lacks locus standi to institute the suit against the defendant.
- (iii) 2nd Plaintiff has failed to disclose a reasonable cause of action against the
defendant, and has filed a frivolous and vexatious suit.
- (iv) Plaint offends rules of pleadings in so far as it promotes ambush and unfair-
play, when it omits annexing a copy of the relevant contract, does not set out
particulars of special damages and negligence.
(b) Non-technical defences: Can be generated upon a successful client interview and
additional facts are available.
2. ………………….
3. (a) Cross check with the court registry and satisfy yourself that;
- (i) A return of service was made, and if so for when?
- (ii) No application for default judgment has been made.
(c) Instantly prepare a WSD which you should file in court by CB.
(d) Where possible, indulge plaintiff’s counsel into a consent on late filing of the
defence.

1 C).

1. (i) Determine the propriety of the plaint.

(a) Suit brought under a wrong plaintiff. The proper plaintiff ought to have been Joshua
Okong suing through Apio Mildred (Next Friend) (O. 32 r. 1 (1) CPR).
(b) Paragraph 1 thereof is improperly set out and is in contravention of O. 7 r. 4 CPR.
It ought to have stated that … the plaintiff is a male minor aged 12 years old suing
through his mother as a next friend; and then attaching a copy of his birth certificate
& a written consent by the mother to the advocate in whose conduct the plaintiff’s
suit was placed (O. 32 r. 1 (2) CPR).
(c) The above identified irregularities have rendered the suit incompetent and liable to be
taken off the file (O. 32 r. 2 (1) CPR).

(ii) Defences in the circumstances.

- Technical defence that the plaintiff’s suit is incompetent and ought to be taken
off the file with costs payable by his advocate (O. 32 r. 2 CPR).

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 -
2. Determine the propriety of;
(i) The service effected on Bukwo District Local Government Council.
- Improper summons extracted and served.
- The relevant summons require the defendant to file her defence within 30 days yet
the suit has been commenced under summary procedure (O. 36 CPR).
- The period of filing a defence within 30 days only apply to the AG; (R. 8 (b) of
The Government Proceedings (Civil Procedure) Rules SI 77-1).
- The proper summons ought to have been, “Summons in summary suit on
plaint”. Such a summons do not allude to an automatic right to file a defence but
gives a defendant 10 days within which to file an application seeking for leave to
defend the suit.
(ii) The filed pleadings/plaint.
- Plaintiff’s claim has overstretched the ambit of O.36 r. 2 CPR – to seek inter alia
for General Damages
- The affidavit in support thereof is defective in so far as it omits a clause that… the
plaintiff believes that the defendant has no defence to the suit whatsoever (O. 36 r.
2 (b) CPR).
- There are no relevant annextures to the affidavit sworn in support to justify the
alleged contract and cheques.
(iii) Remedies available to the defendant:
a) She can obtain an order for unconditional leave to appear and defend
since there exists triable issues of both law and fact.
b) She is entitled to set out a set off in her draft defence and maintain it
subject to obtaining leave to appear and defend.
(iv) A plaintiff can only amend a summary suit where;
a) An application for leave to file a defence is disposed of, in which case, the
suit becomes ordinary. This is so because the suit is premised on affidavit
evidence, which cannot be amended.
b) Where, during the pendency of an application for leave to appear and
defend, parties consent that the same be allowed and court has confirmed
the consent; in which case, still renders the suit ordinary.
c) On partial admission of the claimed sum, the plaintiff may seek an Order
that conditional leave be granted after the defendant has deposited the
admitted sum in court.

1 E). i) Cause of action did not survive (See: S. 11 (1) The Law Reform (Miscellaneous
Provisions) Act, Cap. 79.

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 ii) Write to court notifying it about the death of the plaintiff. Attach a copy of the
deceased’s death certificate. Inform court to close the file as the suit has abated.

Workshop No. 2.

The workshop is on pre-trial applications for discovery of documents, production and inspection
of documents and interrogatories; setting aside uncontested judgments, procedures for seeking
directions, mediation, scheduling conference, preparation of witness summons and trial bundles.

Task. 1 …………………..

Tas. 2 ; Demonstrate how you would obtain necessary documents believed to be in possession of
M/s May (U) Ltd.

The task requires a discussion of all those interventions at the defendant’s disposal to access
information inadequately given under the plaintiff’s pleading.

These include a request for further and better particulars, an application for leave to serve
interrogatories on the defendant, and an application for production and inspection of documents.

It is the right of every party to a pleading to access material facts whether orally expressed or
contained in a document upon which a claim is premised or a defence is hinged; since pleadings
must avoid springing of surprises.

Assuming that the plaint under CS No. 167/2019 is not amended and remains as it is; it would
give a right to Multiple Ltd and any defendant to seek more information such as that relating to;

(a) The written contract alluded to by the plaintiff under paragraph 4 (ii) of their plaint.
(b) The copy of the pledge deed which though mentioned as attached has remained within the
plaintiff’s possession.

This, any defendant can achieve by invoking O.6 r.4 CPR to require a plaintiff furnish him or
her with further and better particulars.

The procedure is that such a request is made on a firm letter head and should be specific on
which particular information the defendant seeks to be availed.

A court must be served with such a letter and placed on watch in so far as parties’ cooperation or
non-cooperation may be.

In our facts, the plaintiff has stated under paragraph 4 of her plaint that her claim is founded on
breach of a written contract for hire of construction equipements. No copy of the same has
been annexed to the plaint or listed as a document.

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

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Multiple Ltd & Ndege Moses can make a humble request by letter to the plaintiff’s advocates to
enable him inspect them and advise himself on the way forward.

If there is none compliance with the request within the set down period of time, Multiple Ltd T
Ndege Moses can take a further step by serving the plaintiff a formal Notice contained under
Form 7 of Appendix B to the CPR, stating the list of documents required for production and
inspection and the time within which to do so. A copy of the Notice and return of service must
be made to court.

The right to seek production of documents is given to a party and court respectively (O. 10 r. 12
& 14, respectively)

To justify an inspection of documents, such document(s);

(i) must have been disclosed or referred to in a party’s pleading or affidavit under a
pending suit,
(ii) relevant in determination of the issues between the parties, and
(iii) Is not subjected to a privilege.

Just like discovery and interrogatories, the object of a production and an inspection process is to
promote a speedy and fair disposal of a suit at the minimal cost.

In case there was an oversight on Multiple Ltd’s counsel to commence this process now, all is
not lost. The applicants can then invoke the court’s jurisdiction by way of summons for directions
(O.11A r. 1 (a) & 4 CPR).

Task 3; Assume that on 31/10/2019, court entered an interlocutory judgment against Multiple
Ltd, demonstrate how you would protect your client’s interests.

A judgment of court, however irregular, binds on the parties. Interlocutory judgments are entered
under O.9 r. 8 CPR on grounds that;

(i) the defendant has defaulted filing a defence within the stipulated period after receipt
of service of process.
(ii) there is a return of service on court record meeting the content required by r. 16 of
Order 5 CPR, as well as with other rules on service
(iii) there is no pending application for extension/enlargement of time within which to file
a defence,
(iv) there is no settlement of liability or undertaking to the effect by the defendant

Just like any ex-parte judgment, an interlocutory judgment is not a judgment on merit. Court in
Peter Jogo Tabu v Reg. Trustees of the Church of the Province of Uganda CA No. 16/2017
(Arua – unreported), observed thus;

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 An interlocutory judgment does not dispose of all issues between the parties and does
not terminate the litigation. They are not final until court decides other matters in the
suit, or until court decides whether the interlocutory judgment is backed with evidence.

The Kenya Court in Kenya Shell Company Ltd v Mwaromo Charles [2003] KLR 285,
elaborated on what facts must be contained in a proper return of service viz;

(i) the time when service was effected,

(ii) the manner in which service was effected,
(iii) the name and address of the person identifying the person served,
(iv) the exact place where served was effected,
(v) whether or not the person serving was familiar to the person being served and if so
for how long and under what circumstances,

These parameters when assessed from Mr. Bwambale’s affidavit of service, renders the whole
process sham. Service made on a 2nd Defendant’s maid cannot bind the company as no mention
is made to the fact that she was a Director or Company Secretary of M/s Multiple Ltd (O.38 r. 9
CPR) .Yet, the 1st defendants is suffering a judgment on it.

In Gandhi Bros v HK Njage HCCS No 1330/2001; it was held that if there is no proper service
of summons to file a defence, any resulting default judgment is irregular and the court must
set it aside ex debito justiticiae (as a matter of right)

Even then, court in Tree Shade Motors Ltd v DT Dobie & Co. Ltd [1995 – 1998] 1 EA 324,
has positively protected the defendant’s right to a hearing by stating thus;

Even if service was valid, judgment shall be set aside if the defence raises merit.

In the circumstances, Multiple Ltd will be advised to cause the setting aside of the interlocutory
judgment any formal proof hearing if at all ordered against him.

He can achieve this on a formal court process. Neither the parties nor their counsel have power to
vary or set aside, or wish away a judgment of court. It is the court which passed it or a superior
court in case of an appeal which can set aside a judgment like this one.

The application will be made under O.9 r. 12 CPR. Its distinction with O.9 r. 27 CPR was
explained by the Supreme Court in Nicholas Roussos v Gulam Hussein Habib SCCA No.
9/1993 as;

R. 12 CPR is applied only where judgment has been passed pursuant to any of the
preceding rules of the Order where a defendant had failed to file a defence, r.27 CPR
however applied to a situation where the defendant having filed a defence or defaulted
on filing a defence, could none the less show that the summons were not duly served

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 …. From the aforegoing, it appears to us that the legal principles applicable to the two
rules are different.

The procedure is by NOM supported by an affidavit.

They would seek Orders like;

(a) Setting aside the interlocutory judgment and any subsequent orders for formal
proof hearing.
(b) Leave to allow the 1st defendant file its defence and participate in the proceedings
inter parties.
(c) Costs of the application.

Grounds:

1. Applicants were not validly served with the court process.

2. Applicants desire to participate in the proceedings of the court in respect of the main suit.
3. Applicants have good defences against the plaintiff’s suit (lack of locus standi, none-
disclosure of a cause of action]
4. Applicants are entitled to a right to a fair hearing.
5. It would be in the interests of justice for court to allow this application.

Notice of the application to be served on the Respondents (O.9 r.28 CPR)

Task 4; Procedure for directions etc….

Summons for Directions are provided for by O. 11A of the CPR as amended.

Back ground:

As 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 method 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 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…

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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 provide 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 [Applications for consolidation of suits, orders 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, attachment before judgment, parties to suits, issue
and service of summons prosecution of suits and adjournments, withdrawal of suits and
adjustments, suits by paupers, temporary injunctions, time, motions and applications etc]
(b) Adopt a course which will be 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 O. 8 r. 18 (5) CPR to file summons for directions (O.11A r. 1 (2) CPR). The
Procedure/form to take is Form 14A, 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 (O. 11 A r. 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 (O. 11A 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 O. 6 r. 29 & 30 CPR; or
O. 15 r. 2 CPR on points of law.
(iii) Where an application has been made seeking for an order to account under O. 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 on whom summons for directions have been addressed has a right to raise 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 (O. 11 A r. 6 (1) CPR)

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 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 (O.11A r. 2. r.(1) CPR).

After the disposal of an application for Directions, parties are enjoined to file their trial bundles
as a condition precedent to conducting a scheduling conference. (O. 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, the plaintiff’s suit shall be fixed for hearing (O. 11 A r. 8 CPR).

An example of a summons for Directions:

Heading as in the plaint

Summons for Directions

(Order XI A, r. 1 CPR )

Let all parties concerned attend the Magistrate’s Court/Registrar Chambers at the Court of …….
Division ………. In Kampala on the ……. Day of ………. 2019 at 9:00 O’clock in the fore noon
or soon thereafter on the hearing of an application for directions in this action that;

(a) There be inspection of documents mentioned under paragraph 7 of the Respondent’s

plaint within 14 days of service of this summons.
(b) C.S No. 167/2019 be fixed for scheduling conference within 45 days from the issuance of
this summons for directions unless the time is otherwise extended.

This summons was taken out by….. C/o M/s ……. & Co Advocates for the Plaintiff/Applicant

………………………………………………..
C/Magistrate/D/Registrar.

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