Litigation 2019 Second Edition

Last Updated December 05, 2019

Uganda

Law and Practice

Authors



MMAKS Advocates stands as one of Uganda’s largest law firms. The litigation team at the firm is fully dedicated to litigation, alternative dispute resolution 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 also handled landmark litigation cases in Uganda which have greatly shaped the legal landscape of the country. The team advises the Central Bank of Uganda together with a majority of the commercial banks in the country. They represent 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 (ALN), an alliance of independent top-tier law firms in Africa, giving the team seamless access to 15 key African jurisdictions across the continent. MMAKS is committed to delivering practical and quality legal services with professionalism and integrity. The firm adopts a proactive approach to high quality, timely and efficient legal services, priding itself on open communication, teamwork, and client satisfaction.

The Ugandan legal system is based on common law and it follows the adversarial model. The legal process is conducted through both written and oral submissions, but predominantly through written submissions.

The hierarchy of the courts of record, from lowest to highest, is as follows:

  • the Grade 1 Magistrates;
  • the Chief Magistrate;
  • the High Court;
  • the Court of Appeal/Constitutional Court; and
  • the Supreme Court/Constitutional Appeals Court.

Appeals from both Magistrates Courts go to the High Court, appeals from the High Court go to the Court of Appeal and from the Court of Appeal to the Supreme Court. Appeals from the Court of Appeal while it is sitting as the Constitutional Court go to the Supreme Court sitting as the Constitutional Appeals Court.

The High Court is split into various divisions, these being the civil division, the commercial division, the land division, the family division and the execution division       

Court filings are available to the public and can be accessed freely. Court proceedings and documents can be kept confidential upon application by either party, after they have provided a justification for the proceedings being kept confidential.

To appear as a legal representative/counsel in a case in Uganda, one must have a Practising Certificate issued by the High Court of Uganda.

Litigation funding is prohibited in our jurisdiction.

No lawsuits are available for third-party funding.

Third-party funding is not available to any party to a lawsuit.

Litigation funding, of any amount, is prohibited in our jurisdiction.       

Litigation funding, of all types of costs, is prohibited in our jurisdiction.

Contingency fees are prohibited in our jurisdiction.

Litigation funding is prohibited in our jurisdiction so there are no time limits applicable to it.

The only pre-trial requirement in Uganda is to issue, to the intended defendant, a notice of intention to sue. This will take the form of an ordinary letter in which the plaintiff states their demands and their intention to sue if those demands are not met.

Failure to issue the notice of intention to sue disentitles a plaintiff who fails to issue that notice from getting the costs of the suit.

The limitation period for bringing an action, in respect of the following actions, is six years from the date the cause of action arose:

  • actions founded on contract or on tort;
  • actions to enforce a recognisance;
  • actions to enforce an award; and
  • actions to recovery any sum recoverable by virtue of any enactment, other than a penalty or forfeiture (or sum by way of penalty or forfeiture).

A court has jurisdiction to hear any matter as long as the cause of action arose within the territorial jurisdiction of that court. Therefore, as long as the cause of action arose within Uganda, a Ugandan court has jurisdiction.

Secondly, where the cause of action arose outside Uganda but the defendant is resident in Uganda, Ugandan courts will have jurisdiction to hear the matter.

Thirdly, where the subject matter of a civil dispute is within the jurisdiction of Uganda, the Ugandan courts will have jurisdiction over that matter.

An ordinary suit is filed by a plaint stating the nature of the cause of action and the relief sought. Upon filing of a plaint, a plaintiff is required to extract summons to file a defence. A plaint may be amended without the leave of the court within 21 days from the date of issuance by the court of the summons to file a defence, or, if a defence has been filed, within 14 days from the filing of the written statement of defence.

Plaintiffs will have to seek leave by application to amend their plaints if they do not do so within the above time limits.

Upon filing of a plaint and extraction of summons to file a defence, the plaintiff is required to inform the defendant of the suit against them by serving the plaint and summons on the defendant personally.

A party outside the jurisdiction can sued in the ordinary way (ie, by filing a plaint and extracting summons to file a defence) but upon filing of the plaint and extracting summons, the plaintiff is required to apply for leave to serve the summons outside the jurisdiction. Once that leave is granted, the plaintiff can find means of serving the defendant personally or seek directions from the court on how to do so. The preferred means is to instruct a court process server, or the equivalent, in the defendant’s jurisdiction to personally serve the summons and plaint on the defendant.

If the defendant does not file a defence within 15 days from the date of service of the summons and plaint, the suit may proceed ex parte against the defendant –ie, the plaintiff will proceed to lead unchallenged evidence and prove their case.       

Class actions/representative actions are permissible, but for all representative suits an application must be made by the intended plaintiff for leave to represent the others in a suit. In this application the intended plaintiff must show that all the represented parties have given their consent and that their causes of action all arose from the same transaction/event.

Class actions brought under a constitutional right of enforcement of human rights may be brought on behalf of a class of persons with or without their consent.

There is no requirement to provide a cost estimate for potential litigation at its outset but it is good practice to do so. This requirement does not exist because the cost of litigation is governed by law.

It is possible to apply for interim relief before the full hearing of a matter. For example, it is possible to obtain an injunction to stop the sale of land pending determination of its rightful owner in a suit.

A party can apply for a judgment on admission, in respect of a particular issue in a suit, before determination of the whole suit, if there has indeed been an admission by the other party.

A plaintiff’s suit can be struck out or dismissed before the hearing of the matter on its merits where a defendant raises a preliminary objection to that suit (eg, on the basis that the plaint does not disclose a cause of action against the defendant or that the plaintiff has sued the wrong party). This application on preliminary points of law can be raised at any stage before the final determination of the matter.

Applications for a judgment on admission, as discussed in 4.2 Early Judgment Applications, are dispositive motions. 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 a judgment in favour of the applicant in respect of that issue.

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

Furthermore, any party who claims an interest in a matter may apply to be added as a defendant or plaintiff, or simply a necessary party to a suit. In this application, it must be shown that that party’s presence is necessary for judicious determination of the suit.

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

The courts usually order that the costs of any 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 heard a few days after being filed in court. A party can, formally or informally, request to be heard on urgent basis and must give reasons for the urgency.

Other, less urgent, interlocutory applications are fixed as and when the schedule of a judicial officer allows for them to be heard.

Parties are allowed to apply to court, by summons in chambers, for discovery of documents relating to any matter in question in a 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 include extraction of witness testimony. 

Discovery is limited to parties to the suit only and does not include third parties.

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

The Ugandan legal system provides for discovery mechanisms only.

The law on advocate-client confidentiality generally requires an advocate to keep client communications confidential unless the client gives consent. There is no distinction made in Ugandan law between in-house and external counsel in this regard.

Rules governing banker-customer confidentiality and clergy (confessional) privilege can disallow document disclosure.

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

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

For interim injunctive relief, the orders may be obtained within two to five days (approximately). Interim injunctive relief is, according to case law, required to be in place for a limited period of about 30 days; pending the hearing or determination of the main injunction application.

The law prohibits ex parte injunctive relief unless it is proved that the respondent was served with notice but has neglected to attend court on the day fixed 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. But individuals with assets outside the jurisdiction can have an injunction issued against them stating that they should not dispose of, or alter the status quo with regard to, all their assets; including those outside the jurisdiction. The order will only be enforceable against these individuals within the jurisdiction of Uganda, so if they alter the status quo with regard to the assets outside jurisdiction then the court that issued the order can sanction them.

Injunctive relief cannot be obtained against a third party to a suit.

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

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

Interim motions or applications are mostly heard orally and in other cases the court determines time lines for the parties to file their written arguments and sets a ruling date.

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

There are no jury trials in Ugandan courts.

Primary evidence is the best evidence to prove a given fact – eg, marriage ought to be proved 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 the court orders otherwise because there are compelling reasons to do so.

Judges have discretion to seek clarity from witnesses or counsel during hearings but their intervention ought not to disclose a partiality towards 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 at 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 the hearing of a trial but cases can last between two and five years depending on their complexity, the number of witnesses and the 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, the court-recorded settlement does not necessarily have to mention the confidential terms, merely the fact of settlement.

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

Settlement agreements (consent judgments) are set aside through applying to the court by a notice of motion to set aside the consent. The grounds for setting aside the consent judgment are the same grounds that vitiate an ordinary contract.

Awards available in Ugandan courts include declaratory orders and any positive order prayed for.

Damages (including special damages, general damages, exemplary/punitive damages, interest and costs) are also available.

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 the 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 various execution means including:

  • by attachment of immovable/immovable property;
  • by way of arrest of the judgment debtor; or
  • by attachment of the judgment debtor's accounts and other debts through garnishee proceedings.

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

The 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 which 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 regards 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 counter-claim 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 or, if so, satisfied only 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 of a registered judgment shall only issue after the production of an affidavit of service of the notice of registration on the judgment debtor.

Appeals from the Grade 1 Magistrate go to the Chief Magistrate, appeals from the Chief Magistrate go to the High Court, appeals from the High Court go to the Court of Appeal, and appeals from the Court of Appeal go to the Supreme Court.

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

Where no appeal is allowed by any statue, 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 appellate courts consider issues of law and fact and essentially reviews the findings of the lower courts 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 necessary due diligence being performed.

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

The appellate courts have powers to uphold the decision of the lower court, dismiss the appeal with costs, grant the appeal with costs or to order re-trial of the matter.

The party filing a document in court is responsible for the court fees, expenses and attorneys’ fees with regard to that document and the proceedings. Costs follow the event and, ordinarily, the unsuccessful party is required to pay for the costs of the litigation of the other party as well as their own. These costs include attorneys' fees, transport, communication and stationery expenses.

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

Interest is very rarely awarded on costs but, were it to be awarded, the court rate would apply (ie, at 6% per annum).

Alternative dispute resolution (ADR) is mandatory in all the court processes; all parties are required to participate in mediation processes before trial and a mediation report is required before that trial begins. Mediation is the most popular form of ADR, arbitration is also common.

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 first.

The ADR institutions are well organised. Arbitration is governed by the Arbitration and Conciliation Act, Chapter 4 which established the Centre for Arbitration and Dispute Resolution and the International Centre for Arbitration and Mediation in Kampala, which handle disputes governed by arbitration. There are other independent private arbitrators available in Uganda.

Furthermore, with regard to mediation, the courts have well organised mediation registries that handle mediations systematically and efficiently.

The Arbitration and Conciliation Act, Chapter 4 is the main piece of legislation governing the conduct of arbitration in Uganda.

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

Arbitral awards are challenged by being set aside upon an application to the High Court by an aggrieved party.

Domestic arbitral awards are enforceable through the same execution processes used for 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
7 Bandali Rise, Bugolobi
Kampala, Uganda
P. O. Box 7166, Kampala, Uganda

+256 393 260 330/31

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

Authors



MMAKS Advocates stands as one of Uganda’s largest law firms. The litigation team at the firm is fully dedicated to litigation, alternative dispute resolution 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 also handled landmark litigation cases in Uganda which have greatly shaped the legal landscape of the country. The team advises the Central Bank of Uganda together with a majority of the commercial banks in the country. They represent 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 (ALN), an alliance of independent top-tier law firms in Africa, giving the team seamless access to 15 key African jurisdictions across the continent. MMAKS is committed to delivering practical and quality legal services with professionalism and integrity. The firm adopts a proactive approach to high quality, timely and efficient legal services, priding itself on open communication, teamwork, and client satisfaction.

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