Litigation 2019 Comparisons

Last Updated July 15, 2019

Contributed By MMAKS Advocates

Law and Practice

Authors



MMAKS Advocates is one of Uganda’s largest law firms, with a 12-member team fully dedicated to litigation, ADR and debt recovery. Two of the firm’s senior partners are qualified to practise in the Supreme Court of England and Wales. The team has handled landmark litigation cases that have shaped the legal landscape in the country. It advises the central bank of Uganda (Bank of Uganda), together with a majority of the commercial banks in the country. The team also represents an array of high-profile local and international entities in a wide range of complex matters. The firm is a member of the Africa Legal Network, an alliance of independent top-tier firms, giving the team seamless access to 15 key African jurisdictions. MMAKS has a full-service offering, with teams specialising in strategically carved-out litigation practice, ADR, debt recovery, real estate, tax, oil and gas, construction, medical negligence, foreign government entities, cross-border disputes, estate and trust law, banking and finance, employment, IP and general commercial litigation.

Uganda’s legal system is based on common law and is adversarial. Proceedings are conducted predominantly through oral argument but written submissions are also prevalent.

The Courts of First Instance are organised by subject matter jurisdiction and are made up – as with the High Court, which adjudicates matters of above UGX50 million in value – of Land, Civil, Family and Commercial Divisions. For employment and tax matters there are specialised tribunals with exclusive jurisdiction, which are the Industrial Court for the former and the Tax Appeals Tribunal for the latter.

First appeals from the High Court and from the Industrial Court lie with the Court of Appeal, made up of a bench of three justices, and second and final appeals lie with the Supreme Court, made up of a bench of five justices. Appeals from the Tax Appeals Tribunal lie with the High Court.

Constitutional questions are adjudicated in the Constitutional Court, which is made up of five Court of Appeal justices, and appeals therefrom are to the Constitutional Appeal Court, made up of a bench of seven Supreme Court justices.

Matters below UGX50 million are tried in the Magistrates' Courts, which are not specialised and deal with all civil claims. These Magistrates' Courts are organised based on geographic area jurisdiction. There are also small claims courts in which litigants are unrepresented and that handle matters valued at less than UGX10,000,000.

Court filings and proceedings are open to the public. An exception can be made, however, in matters in the Family Division where privacy considerations are involved or where matters of national security are involved.

It is mandatory for all legal representatives to be enrolled as advocates within the meaning of the Uganda Advocates Act and they should possess a Practising Certificate issued by the Law Council and renewed annually.

Foreign lawyers from common law jurisdictions can apply in relation to a specific case to the Law Council for a Special Practising Certificate.

Litigation funding is not permissible in Ugandan law.

There are no types of lawsuits that are available for third-party funding.

Third-party funding is not available to the plaintiff or the defendant.

See above, 2.3 Third Party Funding for Plaintiff and Defendant.

See above, 2.3 Third Party Funding for Plaintiff and Defendant.

Contingency fees are not permitted.

See above, 2.3 Third Party Funding for Plaintiff and Defendant.

Requirements of pre-action conduct by a party are limited only to issuance of a notice of intention to sue, the penalty for non-compliance with which is the costs of the suit will not be recovered even if the party is not successful. The defendant has no obligation to respond to a pre-action letter.

Uganda Limitation Act Chapter 97 provides for various limitation periods in relation to various causes of action. Actions based on contract or tort have a limitation period of six years, personal injuries have a limitation period of three years and actions for recovery of land have a limitation period of 12 years. The date of occurrence of the cause of action is taken to trigger the limitation period.

A defendant will be subject to the jurisdiction of the Ugandan courts if the cause of action for which the defendant is sued arose in Uganda regardless of whether the defendant is resident in the country. A defendant will also be subject to the jurisdiction of the Uganda courts if he or she is resident, carries on business or personally works for gain in Uganda.

The complaint document that initiates a suit is a 'plaint', which lists the particulars of the cause of action, the facts in support of the action and remedies sought from the court. A plaintiff can amend the plaint without leave of court at any stage before the fourteenth day from the date of filing of a written statement of defence. Outside this period, a plaintiff who wishes to amend a plaint requires leave of the court.

The Civil Procedure Rules S1 71-1 require services of summons to be effected in person on an individual and to the registered address or principal officer of a company. If a defendant cannot be traced, the court may order substituted service of summons, which entails use of any other means that the court deems fit to bring the summons to the defendant’s attention; eg, advertisement in a newspaper of wide circulation and affixing the summons at the court noticeboard.

Service of summons is the responsibility of the plaintiff.

A party can be served outside jurisdiction upon order of the court. The service outside jurisdiction is required to be effected in a manner that is satisfactory to the court.

Non-response of the defendant depends on the type of action filed. A summary suit on a specially endorsed plaint will entitle the plaintiff to a decree for the sums claimed in the plaint.

An ordinary suit on an ordinary plaint entitles the plaintiff to proceed with the hearing of the matter, ex parte; ie, in the absence of the defendant.

Representative actions are permitted where several persons have the same interest in one suit. Such persons can apply to the court for a representative order, in which they will be represented by one or more of their number.

There is no such requirement.

Interim applications pending the substantive hearing are permitted and parties are able to obtain interim reliefs such as to maintain the status quo, to obtain security for costs or the judgment sum, to conduct discovery or interrogatories.

A party can apply for early judgment on some issues in the dispute through judgment on admission if a party believes that certain facts have been admitted by the other party.

An application for judgment on admission is made to the court at any stage of the trial.

The parties can settle early and enter into a partial consent judgment on some of the issues or a consent judgment on all the issues in the trial.

Parties will forward to court a consent judgment signed by them and the court will endorse what the parties have agreed.

A party can raise a preliminary objection before trial on a point of law to have the other party’s case struck off before trial. This procedure can be done orally or through notice of motion to the court. The standard is that both parties are allowed to address the court on this issue and the court will deliver a ruling on the matter.

Applications for judgment on admissions are dispositive motions that are commonly made before trial. They are applications made by any party to a suit stating that the other party has admitted to a fact in issue and that the court should enter judgment in favour of the applicant in respect to that issue.

Interested non-parties may apply to the court to be joined as amicus curiae to guide the court on information, expertise or insight on the issues in the suit. Such application can be made orally or formally by notice of motion.

A defendant is entitled to apply for security for costs if the plaintiff has no known assets in the jurisdiction or is a non-resident who intends to leave the jurisdiction.

The courts usually order that the costs of the interim applications/motions are included in the main matter and taxed after disposal of the substantive suit.

Interim applications are usually dealt with on an urgent basis and are usually heard a few days after being filed in court.

Parties are allowed to apply to court by summons in chambers for discovery of documents relating to any matter in question in the suit with affidavit evidence.

Discovery is administered by the court and the court will make as many limitations as it deems fit.

Production of documents does not require witness testimony.

Discovery is only applicable to parties to the suit.

There is no requirement in law to disclose any documents at trial unless so ordered by court.

This information is not available.

The law on advocate-client confidentiality generally requires an advocate to keep client communications confidential unless such communication is made in furtherance of any illegal purpose.

Banker-customer confidentiality and clergy confidentiality allow a party not to disclose a document.

Generally, injunctive relief is granted in cases where there is a threat to the change of the status quo that might render the main suit nugatory.

Types of injunctive relief include interim orders and temporary injunction orders, stay of suit/proceedings orders, and stay of execution orders.

For interim injunctive relief, the orders may be obtained approximately between two and five days. An interim injunctive relief is, according to case law, required to be in place for a limited period pending the hearing of the main injunction application.

The law prohibits ex parte interim reliefs unless it is proved that the respondent was served with notice but has opted/neglected to attend court on the fixed day for the hearing.

The applicant is not liable for damages suffered by the respondent and the applicant is not required to provide any security for such damages.

Injunctive relief will be limited to assets that are within the jurisdiction of the court.

Injunctive relief cannot be obtained against third parties.

The applicant can apply to court seeking orders that the respondent purge the contempt of court and for damages against the respondent.

The procedure involves witness examination through oral evidence or furnishing witness statements upon which witnesses will be cross-examined. The parties can opt to have oral arguments or written arguments, although the courts now prefer written arguments for time efficiency.

Interim motions or applications are mostly heard orally but at other times the court allows the parties timelines to file the written arguments and the court sets a ruling date.

Case management includes filing a joint scheduling memorandum where the parties state the agreed facts, agreed issues, agreed documents and witnesses for the trial.

Jury trials are not available.

Primary evidence is the best evidence to prove a given fact; eg, proof of marriage ought to be by providing an original marriage certificate. Secondary evidence will only be accepted in exceptional circumstances.

Expert testimony is permitted and can be introduced by the parties. The court has discretion to seek expert testimony/guidance.

Hearings are open to the public unless otherwise ordered by court.

Judges have the discretion to seek clarity from witnesses or counsel during hearings but their intervention ought not to disclose impartiality to any of the parties lest they expose themselves to recusal for bias. A judge may hear a matter and deliver judgment immediately but this rarely happens. Judgment is often reserved to be delivered on a later date. The period within which it is delivered depends on the complexity of the case.

It is almost impossible to provide a timeframe for hearing of a trial but cases can last between two and five years depending on their complexity, number of witnesses and efficiency of the judicial officer and advocates.

Court approval is required for all settlements as they have to be signed and sealed by the court.

The court settlement can remain confidential between the parties. The court-recorded settlement does not necessarily have to mention the confidential terms.

Settlement agreements are enforced through execution proceedings like ordinary court orders and decrees.

Settlement agreements are set aside through applying to the court by motion to set aside the settlement on the grounds for vitiating a contract.

The forms of award available to a successful litigant are:

  • declaratory orders or any order prayed for;
  • damages; ie, special damages, general damages, nominal damages and exemplary/punitive damages;
  • interest; and
  • costs.

Damages generally occur as a result of breach. Special damages are to be specifically pleaded and proved. General damages are awarded at the discretion of court.

Interest on general damages is awarded from the date of judgment till payment in full, while interest on special damages is awarded from the date the monies became due (before the suit was filed) till payment in full. The Civil Procedure Act provides for a 6% interest rate as the court rate.

The law provides for execution means; ie, by attachment of movable/immovable property, by way of arrest of the judgment debtor or by attachment of the judgment debtor accounts and other debts through garnishee proceedings.

There is an established High Court Execution Division to handle the enforcement and execution of judgments.

Foreign Judgments (Reciprocal Enforcement) Act Chapter 9 (the Foreign Judgments Act) is the primary law in Uganda that makes provision for the enforcement in Uganda of judgments given in foreign countries that accord reciprocal treatment to judgments given in Uganda.

The Minister, if he or she is satisfied, may by statutory order direct that benefits conferred by the Act extend to judgments given in superior courts of any foreign country given that substantial reciprocity of treatment will be assured as respects the enforcement in that foreign country of judgments given in superior courts of Uganda.

The Minister may by statutory order direct that foreign judgments obtained in courts of all the territories of the Commonwealth shall be registrable and enforceable under the Act.

The general effect of a foreign judgment shall be that it is recognised in any court in Uganda as conclusive between the parties to the judgment in all proceedings founded on the same cause of action and may be relied upon by way of defence or counterclaim in such proceedings.

The Foreign Judgments (Reciprocal Enforcement) (General Application) Order 2002 was passed by the Minister; this order directed that the Foreign Judgments Act shall apply to the territories of the Commonwealth and to judgments obtained in the courts of those territories.

The Foreign Judgments (Reciprocal Enforcement) Act Rules set out the procedure to follow in the enforcement of foreign judgments.

An application to have a foreign judgment registered in the High Court may be made ex parte to the court by notice of motion supported by an affidavit.

The affidavit must contain information that the applicant is entitled to enforce the judgment; that at the date of the application the judgment has not been satisfied in part and if so satisfied in part, the amount of money remaining unpaid; that at the date of the application the judgment can be enforced by execution in the original court; and that if the judgment were registered, the registration would not be liable to be set aside. The affidavit has to be accompanied by a certified copy of the judgment issued by the original court and authenticated by its seal.

After the hearing of the application, the court, if satisfied, may grant leave to register the judgment.

The execution on a registered judgment shall only issue after the production of an affidavit of service of the notice of registration on the judgment debtor.

The various levels of appeal are as follows:

  • appeals from a Grade 1 magistrate to a chief magistrate;
  • appeals from a chief magistrate to the High Court;
  • appeals from the High Court to the Court of Appeal; and
  • appeals from the Court of Appeal to the Supreme Court.

Appeals are provided by statute and parties can appeal such orders as are provided for to the higher court as of right.

Where no appeal is allowed by any statute, the party has to seek leave to appeal from the court that issued the judgment.

A party has to file a notice of appeal against a judgment of the High Court within 14 days and within seven days from the decision of a registrar, and the judgment of the Magistrate’s Court.

A party is required to file a memorandum setting out the grounds of appeal against the judgment of the High Court within 30 days.

These timelines are triggered by the delivery of the judgment.

The appeal court considers issues of law and fact, and essentially reviews the findings of the lower court based on the evaluation of evidence adduced during the trial.

There is no re-hearing at the appeal stage unless a party applies to court to have a hearing on the basis that the evidence sought to be adduced at the appeal level was not available during the trial despite all the due diligence.

Appellate courts may order an appellant to deposit further security for costs before their appeal is heard.

The Appellate Court has powers to dismiss the appeal with costs, to grant the appeal with costs or to order retrial of the matter.

The claimant is responsible for the court fees, expenses and attorneys’ fees. Costs follow the event and ordinarily the unsuccessful party is required to pay for the costs of the litigation. The costs include attorney fees, transport, communication and stationery expenses.

Costs as a general rule are awarded to the successful party in the suit.

Interest may be awarded on costs, of at least 6% per annum.

ADR is mandatory in all the court processes and all parties are required to participate in mediation processes before trial, and a mediation report is required before a court trial. Mediation is the most popular ADR.

ADR is compulsory and forms part of court procedures. A court matter cannot progress for trial where the parties have refused to take part in ADR.

The institutions are well organised; eg, arbitration is governed by the Arbitration and Conciliation Act Chapter 4, which establishes the Centre for Arbitration and Dispute Resolution that handles disputes governed by arbitration.

The courts have well-organised mediation registries that handle mediations systematically and efficiently.

Arbitration and Conciliation Act Chapter 4 is the relevant law regarding the conduct of arbitrations and the recognition or enforcement of arbitral awards.

Arbitrators only hear matters relating to contractual disputes with arbitral clauses.

Arbitral awards are challenged by being set aside upon application by an aggrieved party.

Domestic arbitral awards are enforceable through the execution process like ordinary judgments. Foreign arbitral awards are registrable by the High Court and enforceable through the execution process like ordinary judgments.

MMAKS Advocates

4th Floor Redstone House,
Plot 7 Bandali Rise,
Bugolobi, Kampala
P.O Box 7166 Kampala, Uganda

+256 393 260 330/31

0414259992

info@mmaks.co.ug www.mmaks.co.ug
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Law and Practice

Authors



MMAKS Advocates is one of Uganda’s largest law firms, with a 12-member team fully dedicated to litigation, ADR and debt recovery. Two of the firm’s senior partners are qualified to practise in the Supreme Court of England and Wales. The team has handled landmark litigation cases that have shaped the legal landscape in the country. It advises the central bank of Uganda (Bank of Uganda), together with a majority of the commercial banks in the country. The team also represents an array of high-profile local and international entities in a wide range of complex matters. The firm is a member of the Africa Legal Network, an alliance of independent top-tier firms, giving the team seamless access to 15 key African jurisdictions. MMAKS has a full-service offering, with teams specialising in strategically carved-out litigation practice, ADR, debt recovery, real estate, tax, oil and gas, construction, medical negligence, foreign government entities, cross-border disputes, estate and trust law, banking and finance, employment, IP and general commercial litigation.

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