Final Firm D3 Presentation on Workshop 1.pptx

Civil procedure in Uganda workshop

1. CIVIL LITIGATION A PRESENTATION BY FIRM D3 ON PRE-ACTION PROCEDURES AND INSTITUTION OF SUITS.

2. A Tradition of Legal Excellence Week 3 Learning Outcomes Explain the options available to resolve the civil disputes; Determine the appropriate action to be taken in resolving the civil disputes; Illustrate the process of institution of suits; Draft documents in relation to the institution of suits; Recognize and deal with ethical issues relating to the institution of suits.

3. Workshop 1 Client 1: Mr. Fred Musisi Brief Facts: Mr. Musisi is the Manager of Cleanex (U) Limited. The company entered into a contract with United National Population Fund (UNPF) for office cleaning and maintenance services. Since 2020, UNPF has never paid Cleanex (U) Ltd for work done to date: it owes UGX 38,000,00 in arrears. The contract is silent on how to deal with breach of contract. Mr. Musisi wishes to recover the sum owed without litigation. He is open to negotiation to save the relationship. Issues: Whether the above facts disclose any cause of action? Breach of Contract. Who are the possible parties to the suit? Kleenex (U) Limited (Complainant) United Nations Population Fund (Respondent) What other possible additional information would be required?

4. Additional Information Additional Information Required: Place of Residence of the Plaintiff & Defendant - Order 7 Rule 1(b) & (c) of the Civil Procedure Rules.** The contract which forms the basis of the contractual relationship between the parties. Information concerning the legal status of the respondent. Information/evidence proving the plaintiff’s performance of its obligations under the contract.

5. Possible remedies for Cleanex (U) Limited. Negotiation Parties have complete autonomy over the forum, the process and the outcome, and often reach a mutually acceptable decision without assistance from third parties. It is subject to the law of limitation; an offer to negotiate has no effect on the requirement to file a suit in time. Parties may still file a suit and seek adjournment before trial to negotiate - W. H. R. Wanyama v City Council of Kampala & Another [2008] HCB 111. Note: Actions founded in contract have a limitation period of six years from the date on which the cause of action arose - s ection 3(1)(a) of the Limitation Act. Mediation A neutral third person facilitates communication between parties to a dispute, and assists them in reaching a mutually agreed resolution of the dispute - Rule 3 of the Judicature (Mediation) Rules, 2013. Rule 4(1) of the Judicature (Mediation) Rules 2013 requires courts to refer every matter to mediation before proceeding to trial. This requirement was held to have been rendered optional by the enactment of the Civil Procedure (Amendment) Rules, 2019 - Carlton Douglas Kasirye v Sheena Ahumuza Bageine, Miscellaneous Application No. 150. Procedure: a party must file a case summary in court at the time of filing pleadings - Rule 5(1)& (2) of the Judicature (Mediation) Rules . It must contain particulars in sub-rule (3) : this is a mandatory requirement - Rule 5(4).

6. Possible Remedies for Cleanex (U) Limited Arbitration Parties consent to submit a dispute to a neutral person or group for a decision; usually includes full evidentiary hearing and presentations by attorneys for parties. Jurisdiction to resolve a dispute is conferred upon an arbitral tribunal by an arbitration clause - section 16(1) of the Arbitration and Conciliation Act. The third party is vested with powers to render an arbitral award and the parties subject themselves to their jurisdiction, for the arbitrator to make a binding decision - Roko Construction Limited v Janet Kobusingye, Miscellaneous Cause No. 022 of 2021 . Where a contract or agreement provides for an arbitration clause, a party who wishes to commence a dispute resolution is precluded from filing a civil suit. Law Applicable: the Arbitration and Conciliation Act, 2008 (as amended) Procedure: parties are free to agree on the procedure of appointing an arbitrator; where there is no agreement, they may each choose one arbitrator and the two arbitrators so chosen choose a third arbitrator (where it is a three-member panel; where it is one arbitrator, the parties must agree on the person - section 11(2) of the Arbitration & Conciliation Act, 2008 (as amended) Conciliation A third party, who is usually, but not necessarily neutral, meets with the parties and assists them to find a settlement of their dispute. The conciliator ensure that the parties find a solution, but they do not have power to enforce it. Procedure: the initiating party must send the other party a written invitation to conciliate - section 49(1) of the Arbitration & Conciliation Act. Proceedings commence when the other party accepts the invitation in writing; where they do, a conciliator is appointed - section 49(2). The conciliator must adhere to principles of objectiveness, fairness and justice, considering the rights and obligations of the parties, usages of trade concerned and the circumstances surrounding the dispute, including any previous business practices between the parties - section 53 of the Arbitration & Conciliation Act.

7. Recommended ADR Mechanism: Negotiation. It is comparatively cheap: it does not necessarily involve third parties, which eliminates high costs, especially when the parties are financially distressed as in the instant case. It provides the highest chance of a mutually acceptable solution to both parties, saving their business relationship. It results into a settlement agreement, which is enforceable by the parties. It does not impair either party’s right to have recourse to court, in case of failure; there are three more years for the limitation period to expire.

8. Paddy Tumusiime & Carol Nyakato Tumusiime Client 2: Brief Facts The clients are registered owners of land in Kanungu District, which they use for sustenance, subsistence agriculture, commercial projects and residence. Elekro (U) Ltd constructed and installed a power generating station adjacent and neighboring to their operation, which caused harm, injury and damage to their property & livestock, as well as air, water and noise pollution. Paddy and Carol filed a complaint to NEMA and Jacobsen Elekro, but only NEMA responded and made a report. Issues Whether Paddy & Caroline Tumusiime have a sustainable cause of action? Private Nuisance: its elements include ownership - interference - substantiality - unreasonableness and continuity of enjoyment of one’s property. Who are the parties to the dispute? Paddy Tumusiime & Carol Nyakato Tumusiime (potential plaintiffs) Jacobsen Elekro (First Defendant). NEMA (Second Defendant as a Desirable Party: their presence is necessary for the just determination of the issues.

9. Additional Information & Remedies Additional Information Required: Proof of land ownership (the clients’ land title) The clients’ complaint to NEMA A certified report from NEMA Medical and veterinary reports to show disease of persons and animals Available Remedies An Interim Order under section 38 of the Judicature Act: An Order of Temporary Injunction under Order 34 Rules (1) & (9) of the CPR. this is granted when a property is in danger of being wasted, damaged or alienated by a party to the suit. Court may grant this order to restrain such an act and prevent further damage while the suit is ongoing. It maintains the status quo. The applicant must prove: A prima facie case with a probability of success. Likelihood of irreparable damage that cannot be adequately compensated by the award of damages. Where court is in doubt, the application can be decided on the balance of convenience. A Permanent Injunction to prevent future infringement, or violations. A fine and further orders which the Electricity Disputes Tribunal proposes on conviction - section 20 & 21 of the Electricity (Amendment) Act.

10. Forum & Procedure Appropriate Forum to obtain remedies: Section 109 of the Electricity Act & Rule 4 of the Electricity Tribunal (Procedure) Rules confers Jurisdiction upon the Electricity Disputes Tribunal to hear and det ermine all matters relating to the electricity sector. This body has all the powers of the High Court - section 109(3) of the Electricity Act. This includes the power to grant injunctive relief. Procedure: File a complaint before the Electricity Disputes Tribunal - rule 5 of the Electricity Disputes Tribunal (Procedure) Rules, 2012. This is the forum of first instance - Nansubuga v Uganda Electricity Transmission Company Limited, Civil Suit No 1013 of 2018. The complaint must be drafted in the form prescribed under Form 1 of Schedule 1 of the Tribunal Procedure Rules; it must be filed in quadruplicate - rule 6(3) and the complainant must pay prescribed fees under Schedule 2. After filing: serve the respondent - who must receive and acknowledge service and sign a copy of the notice - Rule 9(1). Persons who cannot read or write may acknowledge by affixing a thumb mark.

11. Procedure (Continued) Procedure Continued: The respondent must submit a statement of defence within 21 days after service of the complaint - Rule 10. Where they do not reply, and do not apply for an extension of time, the tribunal may render a decision for the plaintiff. Where the respondent replies with a defence, Rule 12 requires the Tribunal to hold a scheduling conference to discuss issues of agreement, and the possibility of Alternative Dispute Resolution. The Tribunal is empowered to order ADR before a member of the bar or the bench agreed upon by the parties, failing which it may appoint an arbiter - Rule 13(1). This must be concluded within twenty days after - subrule (2). Under subrule (3), an appointed arbiter may apply for up to 15 days’ extension of time. Where ADR does not lead to an agreement, the Tribunal is required to fix a hearing date and notify the parties of the date - Rule 14(1).

12. Barbara Saida & Samantha Saida Brief Facts: Barbara Saida is a 42-year-old widow. She was married to the Joseph Saida – a wealthy 45-year-old businessman trading in timber and real estate. She states that he earned an annual personal income of 400m – 500m and was the sole breadwinner with 3 children, aged 20, 18 & 15 respectively. The family attended the “Smooth Rat” show at Bushland Mall on 31st Dec 2022: this venue is owned by MS Bushland Limited, which in turn is jointly owned by brothers, Jackson & Paul Kush. During the show, 1500 revellers were admitted by the organizers, above the 800 maximum limit allowed by police. The organizers locked all but one of the exits. When the MC announced New Year fireworks, a stampede occurred in which Mr. Joseph Saida & his daughter Jackie (15) were among the 27 killed. Samantha (18) broke her hip bone and her replacement surgery cost SA Rand 196,903,403.

13. Issues What are the causes of action disclosed in the facts? Death as a cause of action - Section 5 and 6(1) of the Law Reform Miscellaneous Provisions Act Elements: (a) death of the deceased (b) the deceased died as a result of the wrongful act of the person against whom the action is brought in circumstances in which the deceased, if he had not died, could have himself maintained the action - Charles Besigwa v Stirling Civil Engineers, Civil Suit No. 455 of 2014. This cause of action cannot be sustained where the deceased person is a minor; the suit can only be brought by the dependents of the deceased - Uganda Electricity Board v G. W. Musoke, Civil Appeal No. 30 of 1993. This may be either in the name of the executor or administrator or in the name or names of any or all or any of the members of the family of the deceased - section 6(1) of the Law Reform (Miscellaneous Provisions) Act . Note : the limitation period for actions for death as a cause of action is one year - section 6(3) of the Law Reform (Miscellaneous Provisions) Act. Negligence (Occupier’s Liability) Elements: (a) Defendant must have a duty of care towards the plaintiff; (b) Breach of duty of care & (c) the plaintiff suffered damage as a result of that breach. It must be shown that the injuries suffered by the claimant were solely caused by the defendant’s negligence - Asiimwe Alex v Maracha Sama & Another, HCT 102 of 2018. At common law the duty of an occupier of premises depends on whether the persons entering them is an invitee, licensee or trespasser. It is the duty to an invitor is to ensure that the premises are safe for the invitee - Gakumba Jossy v Mandela National Stadium Ltd, Civil Suit No. 37 of 2017. Note: The limitation period for actions for damages for negligence where the damages claimed consist of personal injury, the limitation is 3 years.

14. Parties & Additional Information Parties disclosed by the facts Barbara Saida (Plaintiff) Members of the family of the deceased have standing to bring a suit with death as a cause of action under section 6(1) of the Law Reform (Miscellaneous Provisions) Act. Samantha Saida (Plaintiff) She can be joined as a party to the suit, because she is an adult and suffered direct injury from the negligence of the defendant. MS Bushland Limited (Defendant) This is a company, a legal entity that can sue or be sued in its own name. Further Information Required The death certificate of the late Mr. Joseph Saida The marriage certificate of the Plaintiff, Mrs. Barbara Saida (to prove her dependency on him as a wife). Samantha’s Medical Reports (to prove causation). Receipts of the surgery and of funeral expenses (to provespecial damages within the plaint). Proof of the deceased Joseph Saida’s income.

15. Remedies What are the remedies available to Barbara & Samantha Saida? Damages for loss of Financial Support - section 6(2) of the Law Reform (Miscellaneous Provisions) Act. Courts apply the multiplier principle to arrive at the quantum of damages, granting the claimant income and the estimate of the deceased’s probable income e.g., Kabunga Grace v Kisambira Sentamu Ismail, HCCS No. 112 of 2009. Special Damages - Section 10 of the Law Reform (Miscellaneous Provisions) Act. This remedy must be specifically pleaded and proved. In E state of Shamji Ciaran Kurji Karsan v Shaukesprasad & Another [1964] AS 789 , special damages were proved through medical receipts of expenses incurred by the claimant. General Damages This is a general remedy available to claimants, awarded at the court’s discretion. Costs - section 27 of the Civil Procedure Act.

16. Procedure What is the appropriate procedure for Barbara Saida and Samantha Saida to obtain the above remedies? Issue a notice of intention to sue to the intended defendant, Ms. Bushland Limited. Where this is not issued, costs are not granted to the advocate - Regulation 39 of the Advocates’ (Remuneration and Costs) Regulations. Institute a suit by ordinary plaint under Order 4 Rule (1) of the Civil Procedure Rules: where the subject matter and the mode of evidence and nature of the dispute ordinarily require specific pleading and proof, the appropriate procedure is a plaint - Mugerwa and 4 Others v Gemstone International Limited (Miscellaneous Cause No. 17 of 2018 The plaint must contain particulars listed under Order 7 rule (1) of the CPR & must be accompanied by documents listed under Order 7 rule (1) of the CPR: these include a list of witnesses, a list of documents relied on to support the claim and a list of authorities. A mediation case summary must be filed at the time of filing the plaint - Rule 5 of the Judicature (Mediation) Rules, 2013. Pay of court fees - Rules 5 & 6 of the Judicature Court (Fees, fines & Deposits) Rules: a document is only properly filed when court fees are paid - UNTA Exports Ltd v Commissioner of Customs [1970] EA 648.

17. Solomon Bwambale- Facts, Issues & Law Applicable FACTS Solomon Bwambale is a DCO. He claims that in a PDM meeting attended by 1000 people in August 2022, both James and Jameson falsely accused him of theft in the presence of everyone . At the meeting, James repeated an accusation he heard from Jameson, that Solomon had stolen PDM funds. Jameson publicly confirmed the assertion. Jameson has died, but his wife has letters of administration. Solomon asserts that the accusations are false and seeks legal advice. ISSUES What additional information would be required from the client? What is the cause of action disclosed by the facts? Who are the possible parties to the suit? LAW APPLICABLE The Constitution of the Republic of Uganda 1995, as amended The Civil Procedure Rules S.I 71-1 Case Law

18. Resolution of Issues Cause of Action Disclosed: Defamation (slander) Slander: Angwe v Odong C.S. No. 65 of 2011 a) the defendant made a false and defamatory statement concerning the plaintiff; b) the defendant made an unprivileged publication of that statement to a third party and; c) except where the slander is actionable per se the plaintiff must plead and prove special damages. A defendant can still be held liable for slander even if they repeated the sentence Slander is actionable per as if the accusation umpires a crime such as theft in the instant facts.

19. Parties & Additional Information Parties to the suit Mr. Solomon Bwambale (Plaintiff) He is the person claiming violation of his right ( Order 7 rule 1(b) CPR; Auto Garage v Motokov ) Mr. James Rwakachuchu (Defendant) He repeated the utterance and can still be held liable because slander which imputes commission of a crime is actionable per se ( Order 7 rule 1(c) CPR; Angwee v Odong ) Additional Information required Proof that the statement is false (to rebut defence of justification) Proof of James’ malicious intent on making the statememt The requirements under Order 7 rule 1 CPR (residential address; full name)

20. Remedies & Procedure Remedies General Damages Awarded at the discretion of court to compensate the aggrieved for the inconveniences suffered as a result of the defendant’s actions (Angwee v Odong) Costs of the suit ( Section 27 of the CPA Procedure Issue Mr. Bwambale with a notice of intention to sue. ( Regulation 39 (Remuneration and Cost) Regulations ; W ambugu vs Public Service Commission [1972] E.A 29) Institute the suit by way of Ordinary Plaint with its accompanying documents (Order 4 CPR, Order 7 rules 1 and 2 CPR).

21. Procedure Cont’d Determine the court with jurisdiction over the matter:. The High Court of Uganda at Mbarara ( Section 11 CPA ). Conduct mediation and draft a mediation case summary ( Rule 5 of the Judicature (Mediation) Rules 2013 ) Payment of Court fees Rule 5 and 6 of the Judicature Court (fees, fines and Deposits) Rules

22. Procedure Cont’d Filing of the plaint can be done electronically. ( Direction 3 (a) of the Constitution (Integration of ICT into the Adjudication Process for Courts of Judicature) (Practice) Directions, 2019 ) An account should be created on the Electronic Court Case Management Information System and the information of the case, as well as the necessary documents, filed. The payment of court fees has to be done to an authorized bank within the stipulated time in order for their to be an effective filing of the plaint. ( Direction 13 (1) of the Constitution (Integration of ICT into the Adjudication Process for Courts of Judicature) (Practice) Directions, 2019 .

23. Musiime, Okello, Waiswa & 53 Others Brief Facts Mr. Musiime, Mr. Okello, Mr. Waiswa and 53 others were summarily dismissed from their jobs at Muyonjjo Personal Care Products Ltd. On 09/02/2022 some employees of the company laid down their tools in protest of low pay and were then summoned for a disciplinary hearing after management failed to get them back to work. At the hearing on 11/02/2022, they were summarily dismissed pursuant to the Committee’s decision. They were provided with minutes of the inquiry, and Mr. Muslims has availed his Dismissal Letter. The former employees are seeking advice, and the three gentlemen are representing them. Issues What cause of action is revealed in the facts? Who are the possible parties to the suit? What additional information is needed from the client? Law Applicable The Constitution of the Republic of Uganda 1995, as amended The Employment Act The Labour Disputes Arbitration and Settlements Act The Civil Procedure Rules S.I 71-1 Case Law

24. Cause of Action & Parties What cause of action is disclosed in the facts? Unfair termination of contract through summary dismissal exists when: There is no verifiable misconduct by the employee(s) like abuse of office, negligence, insubordination or any kind of incompetence- Kanyangoga & Others v Bank of Uganda LDC No. 80 of 2014 They have not been accorded a fair hearing- Tumusiime Richards & 5 Other v Mukwano Personal Care Products (LDR No. 213 of 2014). In other words, the dismissal must be justified and if it is not, then it’s unfair. Who are the possible parties to the suit? Plaintiffs: Mr. Musiime, Mr. Okello, Mr. Waiswa and the 53 Others Order 1 rule 8 of the CPR provides for a representative suit Defendant: Muyonjjo Personal Care Products Ltd is the defendant since they are the employer, and are a company that can be sued in its own name- Order 30 of the CPR; Salomon v Salomon. Additional Information Required The contracts of employment of the various employees in order to prove that Muyonjoo owed them a duty. The names and consent of the other parties to the suit, as required by Order 1 rule 8 of the Civil Procedure Rules. A record of proceedings before the labour officer.

25. Remedies Remedies Compensation: An employee who has been unfairly terminated is entitled to 4 weeks’ wages as compensation- Section 78(1) and 2 of the Employment Act 2006 . Severance allowance: unfair dismissal is one of the circumstances in which an employee can get a severence allowance- Section 87 Employment Act 2006 Reinstatement: This is available to the terminated employee upon successful establishment that they were unfairly dismissed ( Section 71(5) of the Employment Act; Bank of Uganda v Betty Tinkamanyire SCCA No. 12 of 2007 General Damages: an employee who has been unfairly dismissed is entitled to compensation fully for the financial loss suffered as a result of dismissal- Bank of Uganda v Betty Tinkamanyire SCCA No. 12 of 2007

26. Procedure Procedure Reference of the matter to the Industrial Court: Section 5(1) of the Act comes into operation, because the dispute was not resolved within four weeks after its filing before the Labour Officer. Accordingly, the plaintiffs have standing to request for a reference to the Industrial Court under this Section 5(1) of the Labour Disputes (Arbitration and Conciliation) Act. Under section 8(1)(a), the Industrial Court has the jurisdiction to arbitrate on labour disputes referred to it under the LADASA, and its decisions and awards are enforceable in the same manner as decisions of a civil matter in the High Court - Section 15 of the LADASA The form of the reference is prescribed in Rule 3(2) as Schedule 2 of the Labour Dispute (Arbitration and Settlement) (Industrial Court Procedure) Rules, 2012.