ISLAMIC UNIVERSTY IN UGANDA

LDC PRE-ENTRY GUIDE

BY
TATOMATATO COMPANY IN CONJUCTION WITH TEAM A4

For corrections, comments and soft copy of this work contact the executive
director tatomatato company on 0793833151.
Table of contents

Contents
1. LEGAL METHODS SUMMARY ........................................................................................ 3
2. LEGAL METHODS QUESTION ...................................................................................... 21
3. CONSTITUTION LAW. ..................................................................................................... 33
4. .................................................................................................................................................... 48
5. CONSTITUTIONAL LAW QUESTIONS. ....................................................................... 49
6. THE LAW OF CONTRACT SUMMARY ........................................................................ 60
7. CONTRACT QUESTIONS ................................................................................................ 80
8. Tort summary....................................................................................................................... 92
9. LDC TORT QUESTIONS................................................................................................. 113
10. CIVIL PROCEDURE SUMMARY. ............................................................................ 126
11. CIVIL PROCEDURE QUESTIONS AND ANSWERS. ............................................ 141
12. QUESTION FOR LAW OF EVIDENCE .................................................................... 172
13. CRIMINAL Law summary. .......................................................................................... 192
14. Criminal law questions. ................................................................................................. 204
15. CRIMINAL PROCEDURE SUMMARY .................................................................... 213
16. QUESTIONS COVERING TOPICS: Bail, Trial procedure, Searches and search
warrants ...................................................................................................................................... 220
 1. LEGAL METHODS SUMMARY
General concepts of legal methods

Legal research is the process of identifying materials which govern an activity and finding areas that
explain or analyse that law.

Sources of law in Uganda:

 Statutes
 Common law
 Local government and Central government i.e. by laws and through the 3 branches of
the Central gov’t(Executive, legislature, Judiciary)
 Law reports
 Articles and periodicals e.g. pamphlets, law reviews and journals.
Doctrine of precedent (stare decisis): let the decision stand, courts are bound to follow earlier
decisions.

Law reporting: Reports of cases heard both in the country and abroad.

Why some cases are reported?

 They introduce a new principle.

 They introduce a new rule of law.
 They materially modify an existing principle of law.
 They settle a doubtful question of law.
 They are usually cases of courts of record i.e. Supreme Court, Court of Appeal and the
High Court.
Hierarchy of courts in Uganda

Supreme court; it is headed by the chief justice and the justices of the Supreme Court shall not be
less than six meaning the total number is seven justices.

Court of Appeal; It is headed by the deputy chief justice and any number of justices not being less
than seven. The court of Appeal also sits as the constitutional court.

Constitutional Court; the quorum for the constitutional court is five members. It deals with any
questions that regard the interpretation of the constitution.

The High Court of Uganda; it consists of the principal judge and such number of justices as may be
prescribed by parliament.

Magistrate’s courts

Local council courts

Basics of the Ugandan Courts System

All courts of law in Uganda derive their power from the constitution.
 The Constitution provides for the establishment of the courts of judicature under Article
129.

Supreme Court

The Supreme Court is provided for in Article 130 and it is headed by the chief justice and the justices
of the Supreme Court shall not be less than six meaning the total number is seven justices.

The Supreme Court is duly constituted or its quorum is an uneven number not being less than five
members of the court.

When dealing with appeals from the constitutional court the Supreme Court shall consist of a full
bench of all members of the Supreme Court and in case one is not able to attend, the president shall
appoint an acting justice for that purpose.

The Chief Justice is supposed to preside at every sitting of the Supreme Court and in case he is
absent the most senior member of the court shall preside.

The Supreme Court shall be the final court of Appeal.

The Supreme Court may depart from its previous decisions when it appears to it right to do so and
all other courts are bound to follow its decision.

The chief justice is the head of the judiciary and is responsible for its supervision and administration
of all courts in Uganda. In case the chief justice is absent; the deputy chief justice shall perform
his/her duties.

The chief justice of Uganda is called bati [Link] previous chief justice was called Benjamin
[Link] first chief justice was called Sir udo [Link] first ugandan chief justice was called
Benedicto Kiwanuka.

The chief justice is appointed by the president with the recommendation of public service and the
approval of parliament.

The Supreme Court has original jurisdiction to handle presidential election petitions.

Court of Appeal

It is headed by the deputy chief justice and any number of justices not being less than seven.

The court of Appeal also sits as the constitutional court.

The quorum of the constitutional court is three members.

In case the deputy chief justice is absent ,his/her functions shall be performed by a justice of the
supreme court or a justice of appeal designated by the president after consultation with the chief
justice.

The deputy chief justice of Uganda is mr. Stephan kavuma The former deputy chief justice was called
Mrs. Mpagi Bahingeine and the former one was Mrs. Leticia Kikonyogo.
Constitutional Court

The quorum for the constitutional court is five members.

It deals with any questions that regard the interpretation of the constitution.

The High Court of Uganda

It consists of the principal judge and such number of justices as may be prescribed by parliament.

Other terms

A court martial is an adhoc military court convened under military authority to try someone accused
of violating the uniform code of military justice.

Court of Exchequer is a former English superior court responsible primarily for adjudicating disputes
about the collection of public revenue.

A retrial is a new trial of an action that has already been tried.

Repeal is an abrogation of an already existing law by legislative act.

Repugnancy is an inconsistency or contradiction between two or more parts of a legal instrument.

A deferred judgment is a judgment placing an accused on probation, the successful completion of

which will prevent entry of the underlying judgment of conviction.

Prerogative of Mercy may be defined as the powers given to the president to pardon prisoners who
have been convicted for capital offences. There is advisory committee on the prerogative of mercy
and is headed by the Attorney General and six prominent citizens of Uganda appointed by the
president.

Judicature is the action of judging or administering justice through duly constituted courts.

A trial judge is a judge before whom a case is tried.

A visiting judge is a judge appointed by the presiding judge of an administrative region to sit
temporarily in a given court.

A judgment is a court’s final determination of rights and obligations of the parties in a case.

An appellate court is one with jurisdiction to review decisions of lower courts or administrative
agencies.

A civil court is one with jurisdiction over non-criminal cases.

A commercial court is a court that hears business disputes under simplified procedures designed to
expedite the trials.

A consular court is a court held by the consul of one country within the territory of another. They
are created by treaty and their jurisdiction is usually limited to civil cases.
Court of competent jurisdiction is a court that has power and authority to do a particular act; one
recognized by law as possessing the right to adjudicate a controversy.

A court of equity is a court that has jurisdiction in equity, administers and decides controversies in
accordance with the rules, principles and precedents of equity and follows the forms and procedures
of chancery.

A full court is a court session that is attended by all the courts judges.

A court of limited jurisdiction is a court with jurisdiction over only certain types of cases.

Court of last resort is a court having the authority to handle the final appeal of a case.e.g the
Supreme Court.

A kangaroo court is a self appointed tribunal or mock court in which the principles of law and justice
are disregarded.

A local court is a court whose jurisdiction is limited to a particular territory such as a state, municipal
or county court.

Military court is a court that has jurisdiction over members of the armed forces and that enforces
the code of military justice.

A trial court/court of first instance/court of instance is a court of original jurisdiction where the
evidence is first received and considered.

The duty of assessors is to assess and advise. They assess or weigh the evidence as a whole and
decide whether the accused is guilty or not in the light of their special knowledge as to the habits,
modes of thought.

Major figures and concepts in jurisprudence

Theories of knowledge

1. Materialism and Idealism

Idealism: It refers to the practise of forming and believing in ideas even when this is not realistic. .
The belief that ideas are the only things that are real or about which we can know nothing. The
proponents are Hegel, Emmanuel Kant.

Materialism: This is the tendency to be more interested in material rather than spiritual things. The
proponents are Karl Marx, Fredrick Engels and Lenin.

2. Rationalism and Empiricism.

Rationalism: It states that all streams of behaviour should be based on reason and not feelings or
religious belief. The proponents are Rene Descartes, Plato.

Empiricism: It states that all knowledge is from experience. The proponents are Thomas Hobbes,
John Locke, George Berkeley and David Hume.

3. Existentialism and Pragmatism.

Existentialism: It states that knowledge is the personal experience which a person is emotionally and
passionately involved.

Pragmatists: It state that raw materials to be processed by intelligence and the mind so as to derive
knowledge that provides solutions to life’s problems

Theories of law

1. Natural law theory: It states that true law is right reason in agreement with nature.
The proponent is Cicero.
2. The social contract theory of law: It means that a group is overlapping, related
concepts and traditions in political theory. The proponent is Thomas Hobbes.
3. Positivist theory of law: It states that our knowledge of matter is derived only from
what we have experience of. The main proponent is Jeremy Bentham.
4. Kelsen’s Pure theory of law: It entails the concept that an acceptable theory of law
should be pure. That is logically supporting and not dependent upon any extra-legal
value and other beliefs for example morals.
He established the grundnorm from which other norms are derived.
He established the doctrine of revolution. It states that, ‘where there is an illegal
change to the legal order and the change is successful, it is called a revolution.
However the mode of change must not be contemplated
5. The realist school of law: It states that law is not a rule but judicial behaviour which
legal prepositions predict. The proponents are Oliver Holmes, Benjamin Cardozo,
and Jerome Frank.
6. Sociological School of jurisprudence: It analyses the study of law in its socio historic
context. The proponents are Von Jhering, Von Erlich, and Roscoe Pound, Leon
Duguit.
7. Historical and Anthropological jurisprudence:
Historical jurisprudence: It is propounded by Prof. Frederick Carl Von Savingy. It states
that that the understanding of history was the key to jurisprudence and an analysis of its
development.

Anthropological School: It was propounded by Henry Maine.

It States that:

I. The legal history of people and society showed patterns of evolutions which recurred in
social orders and in similar circumstance.
II. Early society was governed by rituals, in the second stage it was governed by rule and
commands.
III. In the third stage it was marked by codification of customs.
IV. In the fourth stage it consisted of the codification of strict codified law.
The Marxist theories of law and the state

The main proponent is Karl Marx who also borrowed ideas from Hegel.

Major concepts of the Marxist theories

a) Materialist conception of History: It states that in analysis of society, regard should be
had to history and material conditions of man.
b) Concept of dialectics: It states that the art of discovery and testing by discussion and
logical argument.
c) Concept of law: Classes are located in the process of production. That is proletariats,
capitalist, and land owners.
d) Base and Superstructure metaphor: The superstructure is the (i) legal and political form
and (ii) the ideology of dominant class. The superstructure is erected upon the base. The
base is the economic structure.
e) Ideology: This is a system of beliefs characteristic of a class or group of people.
f) The concept of the state and the law: The state like the law is and expression of class
and relations. The law arose as an instrument of class domination with the rise of
classes in society. That there was no state before the emergence of classes of social
differentiation.
g) The concept of communism and weathering away of the state.
That the abolition of classes under communism, the power of the state would disappear
and government functions would be transformed into simple and administrative ones.

JUDICIAL TITLES
 MR - Master of the Rolls – the judge who presides over the court of appeal in
England.
 QC - Queen’s counsel
 LC - Lord Chancellor – a member of the government and cabinet who presides over
the debates in the House of Lords, is responsible for the administration of justice, plays
an importing role in appointing judges and who is the most important judge in England.
 LCJ - Lord Chief Justice – the chief judge of the QBD of the High Court and second
most important judge after the Lord Chancellor.
 LJ - Lord/Lady Justice – the title given to a judge who is a member of the House of
Lords
 LP - Lord President
 KC - King’s Counsel- when monarch is male
 PC - Privy Counselor
 LJC -Lord Justice Clerk
 LJJ’ - Lords Justices – used in reference to more than one judge

JUDICIAL TITLES FOR UGANDAN COURTS

 CJ - Chief Justice
 JJSC – Justices’ of the Supreme Court
 DCJ – Deputy Chief Justice
 JSC – Justice of the Supreme Court
 JA – Justice of Appeal
 PJ – Principle Judge – a title given to the judge who heads the High Court of Uganda
 J – Justice
 CM – Chief Magistrate
 G 1 M – Grade One Magistrate
  G 11 M – Grade Two Magistrate

List of abbreviation and citations

1. AC.……………………………………………………………..Appeal Cases
2. ALLER (Comm)…………………………………………..All England Reports (Commercial cases)
3. ALLER (EC)…………………………………………………All England Reports (European cases)
4. ALLER D……………………………………………………..All England Reports Digest
5. ALLER Rep………………………………………………….All England Reports
6. ALLER…………………………………………………………All England Reports
7. ALLNR…………………………………………………………All Nigerian Reports
8. ALR……………………………………………………………..African Law Reports
9. ALR……………………………………………………………..American Law Reports
10. Atk……………………………………………………………….Atkins’s Chancery Reports
11. B & Ald…………………………………………………………..Barnwell & Alderson Reports
12. BCLR…………………………………………………………….Butterworths Constitutional Law Reports
13. CB…………………………………………………………………Common Bench Reports
14. CCR……………………………………………………………….Criminal Cases Appeal
15. Ch App…………………………………………………………..Law Reports Chancery Appeals
16. Ch D……………………………………………………………….Chancery Division Law Reports
17. Ch…………………………………………………………………..Chancery Law Reports
18. Cl&Fin…………………………………………………………….Clark and Finnelly’s English House of Lords
19. Co. Rep…………………………………………………………..Coke’s Reports
20. Cox C.C…………………………………………………………..Cox’s Criminal Cases
21. CP…………………………………………………………………..Law Reports, Common Pleas
22. CPD………………………………………………………………….Law Reports, Common Pleas Division
23. [Link].R…………………………………………………………..Criminal Appeal Reports
24. CtCP…………………………………………………………………Court of Common Pleas
25. CWLR……………………………………………………………....Common Wealth Law Reports
26. E.R…………………………………………………………………….English Reports
27. EA………………………………………………………………………East African Law Report
28. EACA………………………………………………………………….East Africa Court of Africa
29. EALJ……………………………………………………………………East African Law Journal
30. EAPLR………………………………………………………………..East African Protectorate Law Reports
31. East……………………………………………………………………East King’s Bench Repots
32. ECHR…………………………………………………………………European Court of Human Rights Cases
33. ECR…………………………………………………………………..European Court Reports
34. EHHR………………………………………………………………...European Human Rights Reports
35. EWCA………………………………………………………………..England and Wales Court of Appeal
36. EWHC………………………………………………………………..England and Wales High Court
37. Ex D…………………………………………………………………..Exchequer Division
38. Ex………………………………………………………………………Exchequer Reports
39. F………………………………………………………………………..Family Division
40. FCR…………………………………………………………………...Family Court Reports
41. H&C…………………………………………………...........Hurlstone and Cottman’s Exchequer Reports
42. H&N……………………………………………………………Hurlstone and Norman’s Exchequer Reports
43. H & Tw………………………………………………………………Hall and Twell’s Chancery Reports
44. HCB………………………………………………………………High Court Bulletin
45. HCMB………………………………………………………….High Court Monthly Bulletin
46. HCR……………………………………………………………...High Court Reports
47. HCTLR……………………………………………………………High Commission Territory Law Reports
48. HL………………………………………………………………….House of Lords
49. HLC………………………………………………………………..Clark’s House Of Lords
50. HRLR………………………………………………………………Human Rights Law Reports
51. ICC…………………………………………………………………..International Criminal Court
52. ICJ…………………………………………………………………….International Court of Justice
53. ICTR………………………………………………………………International Criminal Tribunal for Rwanda
54. ILR……………………………………………………………………...International Law Report
55. IP&T……………………………………….Butterworth’s Intellectual Property and Technology Cases
56. IRLR……………………………………………………………………..Industrial Relations Law Reports
57. ITLR……………………………………………………………………...International Tax Law Reports
58. Johns &Hem………………………………………………………….Johnson and Hemming’s Report
59. KB………………………………………………………………………….King’s Bench
60. KBD…………………………………………………………………….…King’s Bench Division
61. KLR………………………………………………………………………..Kenya Law Reports
62. LJKB…………………………………………………………………...…..Law Journal King’s Bench
63. LJQB………………………………………………………………………..Law Journal Queen’s Bench
64. Lloyd’s Rep……………………………………………………………..…Lloyd’s Law Reports
65. LQR………………………………………………………………………….Law Quarterly Review
66. LRAC……………………………………………………………………..Law Reports Appeal Cases
67. LRC……………………………………………………………………....Law Reports on the Common wealth
68. LRCh.D………………………………………………………………….Law Reports Chancery Division
69. LRCP……………………………………………………………………..Law Reports Common Pleas
70. LREq……………………………………………………………………..Law Reports Equity Cases
71. LRKB……………………………………………………………………...Law Reports: King’s Bench
72. LRKBD…………………………………………………………………...Law Reports: King’s Bench Division
73. LRPC……………………………………………………………………...Law Reports Privy Council
74. LRQB……………………………………………………………………..Law Reports: Queen’s Bench Division
75. LRQB……………………………………………………………………...Law Reports: Queen’s Bench
76. LT………………………………………………………………………….Law Times Reports
77. M&W…………………………………………………………….........Meeson & Welsby’s Reports
78. Macq…………………………………………………………………....Macquuen’s Scotch Appeal Cases
79. MLR………………………………………………………………………Modern Law Review
80. Mod……………………………………………………………………..Modern Reports
81. NSWLR………………………………………………………………..New South Wales Law Reports
82. P&D…………………………………………………………………….Perry & Davinson’s Reports
83. PCIJ…………………………………………………………………..Permanent Court of International Justice
84. PH……………………………………………………………………...Prentice Hall Law Reports
85. Pr……………………………………………………………………….Price’s Reports
86. QB……………………………………………………………………...Queen’s Bench
 87. QBD…………………………………………………………………….Queen’s Bench Division Reprint
88. Russ&Ry……………………………………………………………….Russell & Ryan’s Reports
89. SA…………………………………………………………………………South African Law Report
90. SACR…………………………………………………………………….South African Criminal Reports

KEY DISTINCTIONS IN THE LAW

Acts of Parliament and Statutory Instruments; Acts of Parliament refer to legislation through which
the government of the day carries into effect its principal policies, while, Statutory Instruments refer
to delegated legislation that add detail to the legislative framework created by the Acts of
Parliament.

Advocate and Solicitor; Advocate refers to a person who assists, defends, pleads or prosecutes for
another, while a solicitor refers to a lawyer, in the United Kingdom, who consults with clients and
prepares legal documents but is not generally heard in the High Court or Court of Session unless
specially licensed.

Bar and Court; Bar refers to a whole body of lawyers qualified to practice in a given court of law or
jurisdiction, while, court refers to a governmental body consisting of one or more judges who sit to
adjudicate disputes and administer justice.

Appeal and Slip rule; Appeal refers to a proceeding undertaken to have a decision reconsidered by a
higher court or authority, while a slip rule refers to the rule that allows a court to revisit the matter
and change its decision where there is new evidence which the court did not know of by the time it
gave its decision.

Bill and Law; A bill is legislation that has not yet been passed by a legislative body so as to become
law while a law is a bill that has been passed by the legislators and assented to by president of the
relevant authority.

Binding/ Mandatory precedent and persuasive precedent; a binding precedent is one that must be
followed by a court in a latter case even if the judges do not agree with it while a persuasive precedent
is one that need not be followed but is worthy of consideration. Examples of persuasive precedent
include dissenting judgments, decisions from courts in other counties and obiter dicta

Common law and civil law; Common law is a body of law derived from judicial decisions and customs
of the British people rather than from statutes and constitutions while civil law is a body of law
imposed by the state as opposed to moral law or the law of private rights.

Custom and customary law; A custom is a practice that by its common adoption and long unvarying
habit has come to have a force of law while customary law consists of customs that are accepted as
legal requirements or obligatory rules of conduct, practices and beliefs that are so vital and intrinsic a
part of the social and economic systems that they are treated as if they were laws.

Date of assent and Date of commencement; Before any law is inaugurated into the laws of Uganda,
it must be assented to by the president. The day a president assents to the legislation is the date of
assent. The commencement date is the date when the Act is to come into effect. Some statutes state
that the commencement day shall be as subscribed by the minister.
Hostile Attorney and Hostile Witness; Hostile attorney refers to where the task of zealously
representing a client lends itself to vigorous action which may become counterproductive to the
orderly presentation of evidence during the hearing, while hostile witness refers to a witness who is
biased against the examining party, who is unwilling to testify or who is identified with an adverse
party.

A LIST OF KEY LATIN TERM IN THE LAW

Actus Reus: Actus Reus is a Latin term that refers to a guilty act. An Actus Reus may be an action
taken or the failure to take a required action that results into a crime.

Actio personalis moritur cum persona:- This is a Latin term, which means that, “a personal action
dies with the person”.

Autrefois convict: This is a plea, in which a defendant can claim that s/he was charged and convicted
of the same crime under substantially same facts.

Ab ignition:- This is a Latin term meaning “from the beginning”.

Autrefois Acquit: This is a plea made by a defendant who is charged of a crime or misdemeanour to
the effect that s/he was tried earlier for the same crime under the same facts of the case and was
acquitted as he was not found guilty.

A fortiori: A fortiori is the Latin for “with even stronger reason”, which applies to the situation in
which if one thing is true then it can be inferred that a second thing is even more certainly true.

Animus manendi: This is a Latin maxim, which means the intention of remaining. In order to
establish or acquire a domicile an individual should have his/her residence at that place and she/he
must have the intention to remain there for unlimited period.

A priori: Latin term meaning “from the cause to the effect”. A priori is a term of logic used to denote
that when one generally accepted truth is shown to be a cause, another particular effect must
necessarily follow.

Caveat emptor: This is a Latin term meaning, “ let the buyer beware”. It is a general rule of law that
a purchaser assumes the risk of his/her purchase.

Ejusdem Generis: This is a Latin term for “ of the same kind or nature”. Where a law lists specific
classes of persons or things and then refers to them in general, the general statements only apply to
the same kind of persons or things specifically listed.

Ex parte: This refers to a motion or petition by or for only one party.

Habeas corpus: This is a Latin term meaning “ you have the body”. It is a writ (court order), which
directs the law enforcement officials who have custody of a prisoner to appear in court with the
prisoner in order to determine the legality of the prisoner’s confinement.

In flagrante Delicto: This is a latin phrase which means “in the very act of committing an offense.”
The term is used to indicate that a criminal has been caught in the act of committing an offense.
Locus standi: This means the right to bring an action, to be heard in court, or address the court on a
matter before it.

Guide to Legal Resources

The following are decriptions of some key legal resources and publications

Corpus Juris Secundum (a.k.a. C.J.S.), is an encyclopedia of United states law, complete restatement
of the entire American law as developed by all reported cases. It contains alphabetical arrangement
of legal topics as developed by united states federal and state cases. It provides a clear statement of
each area of law including areas of law that are evolving and involves footnoted citations to case law
and other primary sources of law.

Halsburg is Laws of England covers a whole spectrum of English laws and is divided into
alphabetically arranged titles making it convenient to use and enabling quick and early research into
any area of law.

All England Law Reports are described as books with a long running series of law reports converging
a court system in England and Wales. They are commercially produced alternatives to the official
reports produced by the incorporated council of law reporting.

East Africa Law Reports are published reports of appellate court decisions from Kenya, Tanzania and
Uganda.

The Blue Book; a uniform system of citation a style guide prescribes the most widely used legal
citation system in the United States.

Archbold’s Criminal Pleading Evidence and Practice, is the leading practitioners’ text for criminal
lawyers in England and Wales and several other common law jurisdictions around the world and it
has been supporting judges, barristers and practitioners with authoritative and comprehensive
coverage of practive and procedure of the crown court.

Non-Latin legal terms

Accessory: A person who aids or contributes in the commission of a crime.

Accomplice: A person who is in any way concerned with another in the commission of a crime
whether as a principle in the first or second degree or as an accessory.

Accusator: A complainant in a criminal prosecution

Accused: A person who has been blamed for wrong doing.

Acts of parliament: is a statute commonly called a law enacted as primary legislation by a national or
sub national parliament.

Administrative process: The procedure used before administrative organizes.

Adversary proceedings: A hearing involving a dispute between opposing parties.

Agreement: A mutual understanding between two or more person but about their relative rights
and duties.

Apprendre: This is a French term meaning “for taking or for seizure.” It is most often used in the
phrase “profit apprendre.” Profit aprendre is a right to enter another’s land and take something of
value off the land of another person. The thing taken must be something taken out of the soil.

Bail: To obtain freedom by paying some money to court as security.

Bar examination: A written test that a person must pass before being licensed to practice law.

Bar: The whole body of lawyer qualified to practice in a give court or jurisdiction.

Bill: A formal written complaint, such as a court paper representing some specific action for reasons
alleged.

Case law: The collection of reported cases that form the body of law within a given jurisdiction.

Censure: An official reprimand or condemnation or harsh criticism.

Chancery: A court of equity, collectively; the court of equity.

Civil rights: The individual rights of personal or liberty guaranteed by the Bill of right and by 13th,
14th, 15th and 19th Amendments as well as by legislation such as voting Right Act.

Clerkship: A type of internship in which a law student or resent law school graduate assist a lawyer
or judge with legal writing, research and then facts.

Common: is law developed by judges through decision of courts and similar tribunals rather through
legislative statutes or executive branch action.

Constitution: The fundamental law of a state containing the principles upon which the government
is founded and regulating the division of the sovereign power.

Custom: A practice that by its common adoption and long, unvarying habit has come to have the
force of law.

Customary law: law consisting of customs that are accepted as legal requirements.

Defendant: A party (ies) who is used in a personal action.

Estoppels (Doctrine of): This is a legal doctrine that prevents a person from adopting a position,
action, or a right, or attitude, asserting a fact or a right, or prevents one from denying a fact
inconsistent with an earlier position if it would result in an injury to one else.

Force majeure: This is a term that generally refers to an irresistible force or overcoming power. It
affects someone’s ability to do something and may be used as a legal excuse for not having carried
out the terms of a contract. it is a form of the impossible defense. In some cases, the defense may
not apply; such as when there are terms requiring a backup or contingency plan to be in effect.
Golden rule: This is a statutory rule that allows for a departure from the literal rule when the
application of a statutory word in ordinary sense would be repugnant or even when it would lead to
what court considers being an absurdity.

Habeas corpus: A writ employed to bring a person before a court, most frequently to ensure that
the party’s imprisonment or detention is not illegal.

Headings: Statutes usually have headings prefixed to section of statute. The headings of sections
may be looked at to explain doubtful provisions in the statute but not qualify their meaning. The
headings are sometimes equated to the preambles of older statutes.

Hearing: This is the process in which a lawyer presents his or her case before the open court.

Impeachment: The process of calling a witness’s testimony in doubt.

Injunction: An official order from a court of law preventing somebody from doing something.

Internal aids to construction: Where the enacting provision of a statute themselves are ambiguous,
assistance may be obtained from other parts of the statute to ascertain the meaning of the
provisions.

Interpretation clauses: This is usually an interpretation clause that is part of the statute.

Issue: This is a point in dispute between two or more parties.

Judgment: This is courts final determination of the rights and obligation of the parties.

Jurisdiction: The legal authority of court to hear and decide a certain type of case.

Jurisprudence: The study of law and legal systems.

LEGAL RESEARCH

Legal resources are resource from which laws are derived and books in Ugandan Law libraries are
books the Ugandan law library entails which are listed as follows; starting with the legal resources,

Law library is where books are located in te cells of the law library.

Legal data bases following a list of online legal data base researchers will need to use a combination
of these book researchers will need to use a combination of those online resources and paper
resources as described in the section of the books.

Law journals, this is a list of journal resources useful for African legal research, finding books and
articles on international foreign law and indexes are to be considered.

Legal resource indexes such as Wilson’s via the law library electronic, is the indexes, databases,
[periodical and treaties indexes. The law library electronic is the computer where legal information is
obtained through researching on internet.
Cyber law encyclopedia, according to its description is the computer ad information technology law
reference source fro example, source; Alan M. Gahtan (1997-08-10).

Statutes and legislation. The most recent consolidated edition of the statutes of Uganda was
published in 2000. To find more recently enacted laws, you must research legislation that is;
constitution of Uganda.

SUMMARY OUTLINE OF THE KEY POINTS IN LEARNING THE LAW BY GLANVILLE WILLIAMS

Public and private law

 Public law: this is the law governing the state and can be enforced by anyone.
 Private law: This is the law governing individuals and can only be enforced by
individual who have been affected by its infringement. For example contract and
tort.
Common law, equity and legislation
 Legislation: these are written laws made by parliament through which the
government brings into effect its policies. This includes Acts of Parliament also called
statutes or primary legislation and delegated legislation also called statutory
instruments.
 Common law: this refers to law that is not a result of legislation and equity but is
created by Judges and custom of the people in England.
 Equity: these are rules applied by court of chancery in England and became law
based on natural justice.

1. MECHANISM OF SCHOLARSHIP
Law reports
 N.R: Nominate Reports
 L.R: Law Reports
 Q.B: Queens Bench Division
 Fam: Family Division
 A.C: Appeal Cases

Electronic Sources / Citation

Court of Appeal
 EWCA Civ: Court of Appeal (Civil Division)
 EWCA Crim: Court Appeal (Criminal Division)

High Court
 EWHC No (QB): Queens Bench Division
 EWHC No (Ch): Chancery Division
 EWHC No (Fam): Family Division
 EWHC No (Admin): Administrative Court
 EWHC No (Comm): Commercial Court
 EWHC No (Amnlty): Admirality Court
 EWHC No (TCC): Technology and Construction Court
 EWHC No (Pat): Patents Court
Interpretation

William V Davies [2001] EWCA Civ. 10 at (59): this is interpreted as William V Davies the tenth
numbered judgment of the year 2001 in the civil division of the Court of Appeal at paragraph 59.

 W.L.R: Weekly Law Reports

 W.N: Weekly Notes
Structure of a Law Report

 Catch words
 Head note
Commercial and Specialist Law Reports

 ALLER: All England Law Reports

 T.L.R: Times Law Report
 L.T: Law Times Report
 Cox: Cox Criminal Cases
 C.A.R or [Link].R: Criminal Appeal Reports
 [Link].R.(S): Criminal Appeals Reports Sentencing
 J.P: Justice of the Peace Reports.
Two reference pages

 (1892)1 QB 273,291: The first page denotes the beginning of the case and the second
page denotes the particular passage.
Square and Round Brackets

 Square Brackets: They mean that the date is important for reference and has no
volume number. It also means that is the date when the case was reported.
 Round Brackets: They mean that the date is not very important but rather the volume
number is.
Titles of Cases

In Criminal cases

 Trials on indictment are in the names of the king (Rex) or Queen (Regina). e.g Rex
V……….. , Reg V………… , R V………….
 In summary trial in Magistrates Court, the name of the actual prosecutor is used before
the V.
 In the House of Lords the official prosecutor was mentioned i.e Director of Public
Prosecution or DPP.

In Civil cases
 Names of the parties are mentioned.
 If the Queen or King is part, Queen or King V …….. will be mentioned or
Rex V
In interpretation of wills

 Re before the name: Re Smith

 Applications
 Ex.p (Exparte): on application of Smith, it is Ex.p Smith

2. TECHNICAL TERMS
 En ventre samere: unborn child
 Loco parentis: in place of the parent
 Fructus naturales: perennial plants
 Animus revertendi: intention to return
 Obiter dictum: by the way or passing remark
 Ex parte: without notice or on the part of one side only
Legal Abbreviations

Judicial terms
 B: Baron of the Exchequer
 C: chancellor of the High Court of England
 C.B: Chief Baron (Head of the former Court of the Exchequer)
 C.J or L.C.J: Lord of Chief Justice
 J.A: Justice of Appeal
 L.C: Lord High Chancellor of Great Britain
 L.J: Lord Justice or Lady Justice
 M.R: Master of Rolls (Member/President of the Court of Appeal)
 P: President either of family division or criminal division of the court of
appeal
 V.C: Vice Chancellor (Head of the Chancery Division)
 V.P: Vice President of the Court of Appeal
Citation and References

 Ibid (ibidem): in the same place

 Op. Cit: The book or work previously cited.
 [Link]: the page previously cited in the book previously.
 Passim: Everywhere in the book.
 Per: Statement by e.g per Lord Miller
 Per curiam: Statement that is made by the whole court.
 Per incuriam: A Judge’s remark that was made by mistake.
 Semble: It seems that.
 Aliter and Secus: otherwise
 Contra: An authority contradicting what one has first said.

3. Case law technique

 Doctrine of precedent: courts are obliged to follow previous decisions
within more or less well defined limits.
 Ratio Decidendi: the part of a case that is said to possess authority i.e
material facts of the case plus the decision thereon.

4. INTERPRETATION OF STATUTES
Parts of a statute
 An Act of Parliament includes:
 A Short title
 Long Title
 Date of Royal Assent
 Enacting formula
 Sections
 Subsections
 Marginal notes
 The Citation
 The commencement
 The definition section
 Savings
 Repeals
 Schedules
Pepper V Hart, court permitted use of the parts of statute to shed light on the meaning of a
statute.
Importance of context
 Look at the ordinary meaning of the word. This can be done by referring
to the dictionary.
 ‘Noscitura sociis’: A word may be known by the company it keeps. (
Regard must be had to the context)
 Later statutes to see the meaning Parliament puts on the same words in
a similar context.
Definition section and interpretation statute

Interpretation in light of policy

Courts try to determine the intention of the legislature or the meaning of what parliament has said.

Literal rule: - The words must be applied with nothing added and nothing taken away.

The mischief rule/ purpose approach/ rule in Heydon’s case: - This bids the court to look at common
law/ legal position before the Act, and the mischief that the Act was intended to remedy, the Act is
then construed in such a way as to suppress the mischief and advance the remedy.

The rule in Pepper V Hart: Held: In certain situations and for limited purposes the parliamentary
record can be consulted for purposes of ascertaining the intention of the legislature.

The golden rule/ interpretations to avoid absurdity

 It states that a sstatute may be construed in such a way as to avoid absurdity.

 It allows court to prefer a sensible meaning to an absurd meaning, where both are
linguistically possible even though the absurd meaning is the more natural meaning.
Presumptions:- They are background of legal principles against which against which the act is viewed.
For example:

 The traditional notions of justice e.g the rule that a statute is not supposed to be retrospective.
 Reflect what was certainly the intention of parliament e.g an act of parliament e.g an act
applies only Uganda unless otherwise.
 2. LEGAL METHODS QUESTION
1. Define the term ‘law’
Law is a body of rules for the guidance of human conduct which is imposed upon and enforced among
the members of a given society.
2. What do you understand by ratio decidendi?
Ratio decidendi is the rule of law which the decision is founded or any rule of law expressly or impliedly
treaded by the judge as a necessary step in reaching his conclusion, having regard to the line of
reasoning adopted by him.
3. Give three sources of law in Uganda
 Common law
 Written law (statutes)
 Customary law
4. Define the case note
A case note is a short statement summarizing a case, especially relevant facts, issues, holding and the
court’s reasoning.
5. Define the following terms according to your understanding of law.
 Acts: - Acts of parliament are principal laws/ legislations which are made by the parliament or
legislature.
 Statutes: - A statute is a written piece of legislation passed by a legislative body.
 Decree: - A Decree is a piece of legislation which is made in absence of a standing elected
parliament.
6. What is meant by the term stare Decisis?
Stare Decisis is a judicial decision that has building force depending on the hierarchy of courts. It means
“Let the decision stand”.
7. Define Resjudicata.
It means if a case is before a court with competent jurisdiction one cannot institute another suit in
another court.
8. Distinguish between a Plaintiff and a Defendant
Plaintiff refers to all persons claiming any right to relief in respect of a cause of action in civil procedure
Defendant refers to all persons against whom there is a claim of any right to relief in respect of a cause.
9. What is the meaning of ‘Obiter Dictum’?
Obiter Dictum is another way of saying ‘by the way’. A chance remark, which is not binding upon future
courts, though it may be respected according to the reputation of the judge.
10. List the hierarchy of courts in Uganda
 Supreme Court
 Court of Appeal/ Constitutional court
 High court
 Chief magistrate’s court
 Magistrates court Grade I and II
 Local council courts and tribunals
11. Define a constitution
A constitution is the fundamental and supreme law of the land that sets the rules, principles that
govern the people and regulates the relationship between the people and the government.
12. What is a Coram?
Coram is used to refer to the number of judges required to be present during a judicial proceeding.
13. What does the term issue mean?
Issues are points of contention which arise from the facts and upon which the courts make a ruling
e.g. whether the accused was raped.
14. What is referred to as a bye-law?
A bye law refers to a legislation of a subordinate kind within the field of local government.
15. Mention the 3 rules of interpretation of statutes.
 Mischief Rule
 Golden Rule
 Literal Rule
16. What is the precedent doctrine?
Precedent refers to an adjudged case of the decision handed down by the courts in earlier cases, giving
authority for an identical or similar case afterwards arising a similar question of law.
17. Distinguish between public law and private law.
Public law refers to rules regulating the relationship between the government and individual e.g.
it is constituted in the constitution and regulatory statutes where as Private law defines the duties
of individual interests and is primarily concerned with the rights duties of the individuals towards
each other.
18. What is the difference between Substantive and Procedural law
Substantive law refers to the portions of a country’s legal systems which define the contents of
legal norms or determine the legal subjects, rights and duties of persons whereas Procedural law
is a branch of law of litigation or the means by which substantive norms are enforced.
19. What do you understand by the terms Common law and Equity?
Common law means the law of England which established the basic common law principles when
judges decided cases on the theory that they were declaring the customary law of England WHERE AS
Equity is a body of rules of fairness or natural justice/public morality in a particular community.
20. Mention at least three criteria’s for a custom to be valid?
 It must be reasonable
 It must be time immemorial
 It must be certain
 It must be continued without exception
21. What do you understand by the term ‘locus standi’?
A right to be heard in court.
22. What is the difference between a Moot and a Mock Trial
Moots are legal problems in the form of imaginary case which are argued by two student counsel (a
leader and a junior) on each side, with a ‘bench’ of ‘judges’ representing the court of Appeal or House
of Lords. Mock Trials on the other hand are jury trials, with jury and witnesses, and not an argument
on law.
23. What is the difference between Criminal Law and Civil law
Criminal law defines offences, prescribes punishments and sets down principles of criminal
responsibility and seeks to protect the public against wrongs done by bad elements in society.

Civil law however is the branch of law dealing with disputes between individuals and or organizations
in which compensation may be awarded to the victim
24. Outline the contents of a Case note
  Briefs facts
 Issues
 Holding
 Law Applicable
25. Write the following in full
TLR → Time Law Reports/Tanganyika Law Reports
SCCA → Supreme Court Civil Appeal
HCB → High Court Bulletin
ULR → Uganda Law Reports/University Law Reviews
ULRJ → Uganda Law Review Journal
KALR Kampala Law Reports

26. Apart from litigation, mention other two ways through which disputes can be resolved
 Arbitration
 Medication
 Negotiation
27. Define a right.
It is an interest recognised and protected by the state and the law.
28. What is your understanding of the word Justice?
It is the exercise of authority or power in maintenance of legal rights
29. Distinguish between Municipal Law and International Law
Municipal law is that law that deals with the affairs of a country within its boundaries whereas
International law is the body of laws which is composed for its greater part of the principal and the
rules of conduct which states feel themselves bound to observe and therefore do commonly observe
in their violation with each other.
30. What terms are used to refer to Parties in a civil suit?
 Plaintiff and Defendant
 Appellant and Respondent
 Petitioner and Respondent
31. What terms are used to refer to Parties in a criminal suit
 ¬ state and accused
 ¬ Appellant and Respondent
32. What is a Bill?
A bill is a statute in draft before it becomes law. It is also a plan for anew of altered law that is put
before a parliament.
33. What is the meaning of "Ex parte"?
"Ex parte” is a Latin word to mean one party. It refers to motions, hearings or order granted on a
request for one party and for his/her benefit only. It also refers to situation in which only one party
(and not the adversary) appears before a judge.
34. What do you understand by the phrase "Legal system"?
"Legal system" is a system for interpreting and enforcing the laws. It also refers to the rules,
regulations and doctrines of law which apply in a given society.
35. Define a custom
A custom is a usage as has obtained the force of law and is binding to such particular places, persons
and things which it concerns.
 36. What is the importance of precedent?
It establishes uniformity, consistence, and certainty in the law. It makes the law applicable to future
transactions certain and the future decisions of judges predictable.
37. What is the language of law/court in Uganda?
 English
38. What is the impact of a revolution on a legal system?
Kelsen argues that once a revolution is successful, that revolution destroys the old legal system/order
and establishes a new legal order.
39. If a case is reported in All E.R where else is it reported?
Appeal Cases(AC), Times Law Reports or Weekly Law Reports(WLR).
40. How can one trace unreported cases?
Unreported cases may be traced by referring to the numbers or reference provided by the respective
registries.
41. What is the structure of a well reported case?
It provides a summary which concedes the important points in the case including the parties to the
suit, the citation, the facts, issues and the judgment.
42. What is a dissenting judgment?
A dissenting judgment is that judgment that is different or not in agreement with the major judgment
in the case.
43. What are the functions of the judicial services commission?
 ¬ It advices the president on matters of appointment as well as disciplining of
judicial officers.
 ¬ It reviews and makes recommendations on the terms and conditions of
service for judicial officers.
 ¬ It is responsible for judicial officers and also receives complaints about
members of the judiciary.
44. What is the function of the inspectorate of courts?
It evaluates the body of magistrates with a view of improving the quality of service to the courts
throughout the various magisterial areas.
45. Who determines the order of business in parliament?
The Speaker of Parliament.
46. Who may introduce a bill in parliament?
Either the government or any Member of Parliament.

47. How is a Bill endorsed?

By being signed and assented by the President.
48. What are the arms of Government?
 The Executive
 The Judicial
 The Legislature
49. What is a leading case?
A leading case is a court case which results in a decision which sets a precedent. It may establish a new
concept or interprets a law in a new way.
50. What is referred to as a Binding Precedent?
A binding precedent is existing law that must be followed and is binding only on lower courts. It follows
stare decisis.
51. Differentiate between a matter of law and a matter of fact
A matter of law is that matter which is determined through the use of statute, rules, court decisions,
and interpretations of legal principles where as a matter of fact is a question put to the court and in
the judges discretion to determine.
52. What is case law?
Case law is a body of available writings explaining the verdicts in the case..
53. Suggest the meaning and importance of the Hansard
Hansard means official report of Parliamentary Debates; importance is to discover the will of the
parliament as an aid to judicial statutory interpretation when legislation is unclear.
54. What does the Re; mean as far as case citation is concerned?
 Re; in the matter of
55. What does ‘amendment of law’ mean?
It means that the law is annulled by an authoritative Act. In other words that the law is no longer a
law but has been altered.
56. What does the process of law reform entail?
It is the process of examining existing laws and advocating and implementing changes in the legal
system usually within the aim of enhancing justice or efficiency.
57. Mention the various ways how you would look for a case from the library?
 Law Report
 Parties
 Year it was reported
 Reforming to the index book of cases
58. Differentiate between principle and subsidiary legislation
Principal laws are those laws enacted by the legislature e.g. Acts and Decrees while subsidiary
legislation are laws under principle legislation and they take the form of statutory instruments such
as legal notices, regulations and ordinances.
59. What is the meaning of MR?
 MR - Master of Rolls
60. What does the Latin word ‘Law naturalis’ mean?
Law naturalis means the law whose content is set by nature and has validity everywhere.
61. What is ADR in full?
 Alternative Dispute Resolution
62. Distinguish between rules and regulations
Rules are principals or conditions that customarily govern behaviour whereas regulations are
authoritative rules.
63. What does the term ‘legislation’ mean?
It means the process of making law. It is also a reference made to the whole body of laws.
64. Differentiate between statutory and non-statutory law
Statutory laws are those that are made by the legislative body such as the Parliament and local
government whereas non-statutory laws are those that are not made by a legislative body but by
customs, practices and court decisions.
65. What does the term ‘Act’ mean?
An Act is a bill, which has been enacted and passed by parliament and assented to by the President.
66. Speaking as a lawyer, what is your take on mob justice?
Mob justice is an injustice to the victim. One of the natural justice rules addressed by the law is that a
person is presumed innocent until proven guilty through a fair trial; before an impartial and
independent tribunal. Mob justice is to the effect that justice is seen to be done yet it does not seem
to be done to the victim who may have been tortured innocently and was not given an opportunity to
defend himself.
67. What is a crime?
A crime is an act, default, or conduct prejudicial to the community, the commission of which by law
renders the person responsible liable to punishment by fine or imprisonment in special proceedings,
normally instituted by officers in services of the state.
68. Name the three divisions of the High Court according to common law
 Queen’s Bench Division
 Chancery division
 Family division
69. What do square brackets and round brackets signify in the citation of a case?
Square brackets mean that the date/year is an essential part of the reference to the case while in cases
of round brackets the date/ year is not an essential part of the reference to the case.
70. What does the abbreviation C.J stand for?
 Chief Justice
71. What is meant by legal reasoning?
Legal reasoning is the process by which lawyers think about any legal problem.
72. What are the five aspects of a judgment?
 A recitation of the facts of the legal case
 The issues arising out of the given facts
 The reasoning over the appropriate resolution of that issue
 The ruling resolving the issue
 The results or outcome of the case
73. Who is the current Chief Justice of Uganda?
 Hon. Mr. Justice Bati Katurebe
74. What is statutory interpretation?
It is the interpretation of legislative texts or finding the meanings of legislative texts.

75. What are the contents of res judicata?

 The matter of the suit must have been directly and substantially in issue in the former
suit
 The litigations must be between the same parties or representatives of those parties.
 The parties must have had litigation under the same title.
 The court trying the former suit must have been competent to decide such issue or
suit.
76. What do you understand by the term sub silentiol?
It is a latin word to infer that the decision is not binding; i.e. one in which the existence of the
particular point was not perceived by the court so that it was not discussed in the judgment.
77. Name the two maxims upon which resjudicata is based;
 ‘interest reipiblicae ut suit finis litim’- it concerns the state that there be an end to law suits.
 ‘nemo debet bis vexari pro umo et eadem cause’- no man should be harassed twice over the
same cause.
 78. Define a court?
It is a person or group of persons acting as judges’ with the authority to hear and decide disputes by
interpreting and applying the law.
79. What is a tribunal?
A tribunal is a body set up to act like court but outside the normal court system. Or a forum set up to
hear and settle disputes.
80. What are the advantages of a tribunal?
 The procedure is cheaper and quicker than ordinary courts.
 They are staffed by members who have intimate knowledge of the matter before it.
 They are not bound by precedent like the ordinary courts.
81. What is an arbitration agreement?
According to Section 3 of the Arbitration Act Arbitration Agreement means an agreement by the
parties to submit to arbitration all or certain disputes which have arisen or which may arise between
them in respect of a defined legal relationship whether contractual or not.
82. If Binomugisha Caroline, aged 15years commits a crime, in which court would she be tried?
The Family and Children’s Court.
83. What is the meaning of ultra vires?
It simply means beyond the powers. In other words, someone will act untra vires if he/she acts beyond
the powers conferred upon him/her.
84. What do you understand by pro bono services?
These are free services offered by an advocate to a person who is unable to afford legal services of an
advocate.
85. What is legal research?
Legal research is the process of identifying materials which govern an activity and finding
areas that explain or analyse that law.
86. What is law reporting?
These are cases that have been recorded in books for purposes of reference.

87. What does the theory of ‘materialism’ state in jurisprudence?

This is the tendency to be more interested in material rather than spiritual things.

88. Who are the proponents of materialism theory?

The proponents are Karl Marx, Fredrick Engels and Lenin.

89. What does the theory of idealism state in jurisprudence?

It refers to the practice of forming and believing in ideas even when this is not realistic. . The belief
that ideas are the only things that are real or about which we can know nothing

90. Who are the proponents of idealism theory?

The proponents are Hegel, Emmanuel Kant.

91. What does the theory of rationalism state?

It states that all streams of behaviour should be based on reason and not feelings or religious belief.

92. Who are the proponents of the rationalism theory?

The proponents are Rene Descartes, Plato.

93. What does the theory of empiricism state?

It states that all knowledge is from experience.

94. Who are the proponents of the empiricism theory?

The proponents are Thomas Hobbes, John Locke, George Berkeley and David Hume.

95. What does the theory of existentialism state?

It states that knowledge is the personal experience which a person is emotionally and
passionately involved.

96. State the theory of pragmatism.

It state that raw materials to be processed by intelligence and the mind so as to derive
knowledge that provides solutions to life’s problems

97. State any three theories of law.

 Natural law theory
 The social contract theory of law
 Positivist theory of law
 Kelsen’s Pure theory of law
 The realist school of law
 Sociological School of jurisprudence
 Historical and Anthropological jurisprudence
98. Define the natural law theory.
It states that true law is right reason in agreement with nature.

99. Who propounded the natural law theory?

The proponent is Cicero.

100. State the social contract theory of law.

It means that a group is overlapping, related concepts and traditions in political theory.

101. Who propounded the social contract theory of law?

The proponent is Thomas Hobbes.

102. What is the positivist theory of law?

It states that our knowledge of matter is derived only from what we have experience of.

103. Who propounded the positivist theory of law?

The main proponent is Jeremy Bentham.

104. State kelsen’s pure theory of law?

 It entails the concept that an acceptable theory of law should be pure. That is logically
supporting and not dependent upon any extra-legal value and other beliefs for example
morals.
 He established the grundnorm from which other norms are derived.
 He established the doctrine of revolution. It states that, ‘where there is an illegal change to
the legal order and the change is successful, it is called a revolution. However the mode of
change must not be contemplated
105. Who propounded the kelsen’s pure theory of law?
It is Hans Kelsen
 106. State the realist school of law?
It states that law is not a rule but judicial behaviour which legal prepositions predict.

107. Who are the proponents of the realist school of law?

The proponents are Oliver Holmes, Benjamin Cardozo, and Jerome Frank.

108. State the sociological school of jurisprudence.

It analyses the study of law in its socio historic context.

109. Who are the proponents of the sociological school of jurisprudence?

The proponents are Von Jhering, Von Erlich, and Roscoe Pound, Leon Duguit.

110. State the historical jurisprudence.

It states that that the understanding of history was the key to jurisprudence and an analysis
of its development.

111. Who are the proponents of the historical jurisprudence?

It is propounded by Prof. Frederick Carl Von Savingy.

112. State the Anthropological Jurisprudence.

It States that:

V. The legal history of people and society showed patterns of evolutions which recurred in social
orders and in similar circumstance.
VI. Early society was governed by rituals, in the second stage it was governed by rule and
commands.
VII. In the third stage it was marked by codification of customs.
VIII. In the fourth stage it consisted of the codification of strict codified law.

113. Who are the proponents of the Anthropological jurisprudence?

It was propounded by Henry Maine.

114. Who is the main proponent of the Marxist theories of law?

 The main proponent is Karl Marx
115. Whose ideas did Karl Marx borrow in propounding the Marxist theories of law?
 The main proponent is Karl Marx who also borrowed ideas from Hegel.

116. What does the Materialist Conception of History under the Marxist theories state?
 It states that in analysis of society, regard should be had to history and material conditions
of man.
117. What does the Concept of law under the Marxist theories state?
 Classes are located in the process of production. That is proletariats, capitalist, and land
owners.
118. What does the Base and Superstructure metaphor under the Marxist theories state?
 The superstructure is the (i) legal and political form and (ii) the ideology of dominant class.
The superstructure is erected upon the base. The base is the economic structure.
119. What does the Ideology under the Marxist theories state?
  This is a system of beliefs characteristic of a class or group of people.
120. What does the Concept of the State and the Law under the Marxist theories state?
 What does the Concept of communism and weathering away of the state under the Marxist
theories state? That the abolition of classes under communism, the power of the state would
disappear and government functions would be transformed into simple and administrative
ones.
121. Distinguish between Advocates and Solicitors?
 Advocate refers to a person who assists, defends, pleads or prosecutes for another, while
a solicitor refers to a lawyer, in the United Kingdom, who consults with clients and prepares
legal documents but is not generally heard in the High Court or Court of Session unless
specially licensed.
122. Distinguish between the Bar and Court?
Bar refers to a whole body of lawyers qualified to practice in a given court of law or jurisdiction,
while, court refers to a governmental body consisting of one or more judges who sit to adjudicate
disputes and administer justice.

123. Distinguish between Appeal and Slip rule?

 Appeal refers to a proceeding undertaken to have a decision reconsidered by a higher court
or authority, while a slip rule refers to the rule that allows a court to revisit the matter and
change its decision where there is new evidence which the court did not know of by the
time it gave its decision.

124. Distinguish between a bill and a law?

 A bill is legislation that has not yet been passed by a legislative body so as to become law
while a law is a bill that has been passed by the legislators and assented to by president
and is binding law.
125. Distinguish between a binding/ mandatory precedent and a persuasive precedent.
 a binding precedent is one that must be followed by a court in a latter case even if the
judges do not agree with it while a persuasive precedent is one that need not be followed
but is worthy of consideration. Examples of persuasive precedent include dissenting
judgments, decisions from courts in other counties and obiter dicta

126. Distinguish between a Custom and Customary law.

 A custom is a practice that by its common adoption and long unvarying habit has come to
have a force of law while customary law consists of customs that are accepted as legal
requirements or obligatory rules of conduct, practices and beliefs that are so vital and
intrinsic a part of the social and economic systems that they are treated as if they were
laws

127. Distinguish between common law and civil law.

 Common law; this is a legal system that is largely formed by the decisions previously made by
courts and not imposed by the legislature or other government officials. It is also the basis of
the legal system in England and many English speaking countries especially British colonies
and Civil law; it is a system used by some jurisdictions whereby laws are collected, written
down and codified within the legal system.

128. Define the term Actio personalis moritur cum persona.

  A personal action dies with the person
129. Define the term Ab inition.
 From the beginning
130. Define the term A fortiori.
 Argument 'from [the] stronger [reason]'."
131. Define the term amicus curiae?
 A friend of the Court.
132. What is the meaning of bona fide?
 "In good faith." Implies sincere good intention regardless of outcome
133. What is the meaning of Alibi?
 At another place, elsewhere.
134. What is the meaning of Animo testandi?
 With an intention of making a will
135. What is the meaning of Assentio mentium?
 The meeting of minds, i.e. mutual assent.
136. what is the meaning ofAudi alteram partem?
 Hear the other side." Refers to the idea that one cannot be fairly judged unless the cases
for and against them have been heard.
137. What is the meaning of Caveat emptor?
 This is a Latin term meaning, “ let the buyer beware”. It is a general rule of law that a
purchaser assumes the risk of his/her purchase. The intent of the rule is to place a duty of
care on the buyer in selecting an item and putting forth appropriate inquiry before
completing the sale. In this way, a seller is also protected from liability for buyer’s remorse.

138. What is the meaning of Animus manendi?

 This is a Latin maxim, which means the intention of remaining. In order to establish or
acquire a domicile an individual should have his/her residence at that place and she/he
must have the intention to remain there for unlimited period. Intention is an important
factor in deciding the domicile of a person.

139. What is the meaning of Habeas corpus?

 This is a Latin term meaning “ you have the body produced”. It is a writ (court order), which directs
the law enforcement officials who have custody of a prisoner to appear in court with the prisoner
in order to determine the legality of the prisoner’s confinement. Habeas corpus petitions are
commonly used when a prisoner claims illegal confinement,

140. What is the meaning of In flagrante Delicto?

 This is a latin phrase which means “in the very act of committing an offense.” The term is used to
indicate that a criminal has been caught in the act of committing an offense.

141. What is the meaning of locus standi?

 This means the right to bring an action, to be heard in court, or address the court on a matter
before it.

142. What is the meaning of Mensa Et Thoro?

 This is a Latin term which means “ from board and hearth”. It is a kind of divorce, which
does not dissolve the marriage bond, but merely separates life of the husband and the
 wife. This is similar to a court sanctioned separation where the husband and the wife are
not legally obligated to live together, but their marriage has not been dissolved. The
husband may grant it for the causes of cruelty or desertion of the wife. This kind of divorce
does not affect the legitimacy of the children. When the divorce is a Mensa et thoro,
neither spouse can remarry.

143. What is the meaning of Mutatis mutandis?

 This is a Latin phrase which means ‘hand in hand’ Mutatis mutandis relates to due
alterations to be made in similar statements.

144. What is the meaning of Nemo dat quod non-habet?

 This is a Latin phrase meaning “no one can give what he does not have”.

145. What is the meaning of Quantum meruit?

 This is a Latin maxim meaning “as much as he deserved,” the actual value of services
performed. A payment for work completed under the terms of a breached contract, or
when no contract exists or there is doubt as to the amount due for the work performed
but done under the circumstances when payment could be extracted.
146. What is the meaning of Res Ipsa Loquitur?
 This is a Latin term meaning “ the thing speaks for itself”. It is also a doctrine of law that
one is presumed to be negligent if he/she had exclusive control of whatever caused the
injury even though the is no specific evidence of an act of negligence, and the accident
would not have happened without negligence.

147. .what is the meaning of Uberrimae fidei?

 This is a Latin phrase meaning, “utmost good faith” literally meaning, “most abundant
faith”. Uberrimae contracts are made in utmost good faith. There is no concealment or
deception in such contracts. If one of the parties to a contract has a special knowledge,
he/she must disclose such knowledge relevant to the contract.

148. What is the meaning of Volenti Non fit Injuria?

 This is a Latin term meaning, “To one who is willing, no harm is done”. This doctrine holds
that a person who knowingly puts himself in a dangerous situation cannot later on sue for
any resulting injuries.

149. What is the meaning of Sui generis?

 This is a Latin term which means of its own kind/ genus. It is something in its characteristics.
The expression is often used in analytic philosophy to indicate an idea, an entity, or a
reality, which cannot be included in a wider concept.
 3. CONSTITUTION LAW.
THE CONSTITUTION OF THE REPUBLIC OF UGANDA 1995 and its relevant provisions.

THE PREAMBLE

WE THE PEOPLE OF UGANDA: RECALLING our history which has been characterized by political and
constitutional instability;

RECOGNISING our struggles against the forces of tyranny, oppression and exploitation; COMMITTED
to building a better future by establishing a socio-economic and political order through a popular and
durable national Constitution based on the principles of unity, peace, equality, democracy, freedom,
social justice and progress; EXERCISING our sovereign and inalienable right to determine the form of
governance for our country, and having fully participated in the Constitution-making process; NOTING
that a Constituent Assembly was established to represent us and to debate the Draft Constitution
prepared by the Uganda Constitutional Commission and to adopt and enact a

Constitution for Uganda: DO HEREBY, in and through this Constituent Assembly solemnly adopt, enact
and give to ourselves and our posterity, this Constitution of the Republic of Uganda, this 22nd day of
September, in the year 1995.

FOR GOD AND MY COUNTRY.

Although it was enacted 22nd September 1995, the constitution started officially working on 8th
October 1995.

NATIONAL OBJECTIVES AND DIRECTIVE PRINCIPLES OF STATE POLICY.

When applying, interpreting the constitution or any other law and/or implementing any policies, these
are the objectives and principles that guide all; Organs, Agencies of the state, Citizens, Organisations,
Other bodies and persons.

POLITICAL OBJECTIVES

I. The State shall be based on democratic principles which empower and encourage the active
participation of all citizens at all levels in their own governance.
II. All the people of Uganda shall have access to leadership positions at all levels, subject to the
III. Constitution.
IV. The State shall be guided by the principle of decentralization and devolution of governmental
functions and powers to the people at appropriate levels where they can best manage and
direct their own affairs.
V. The composition of Government shall be broadly representative of the national character and
social diversity of the country.
VI. All political and civic associations aspiring to manage and direct public affairs shall conform to
democratic principles in their internal organisations and practice.
VII. Civic organisations shall retain their autonomy in pursuit of their declared objectives.

SOCIAL AND ECONOMIC OBJECTIVES

The State shall endeavour to fulfil the fundamental rights of all Ugandans to social justice and
Economic development and shall, in particular, ensure that—

I. All developmental efforts are directed at ensuring the maximum social and cultural well-being
of the people; and
 II. All Ugandans enjoy rights and opportunities and access to education, health services, clean
and safe water, work, decent shelter, adequate clothing, food security and pension and
retirement benefits.

Women: The State shall recognise the significant role that women play in society.

Disabled: Society and the State shall recognise the right of persons with disabilities to respect and
human dignity.

Sports: The State shall promote recreation and sports for the citizens of Uganda.

Education:

 The State shall promote free and compulsory basic education.

 The State shall take appropriate measures to afford every citizen equal opportunity to attain
the highest educational standard possible.
 Individuals, religious bodies and other nongovernmental organisations shall be free to found
and operate educational institutions if they comply with the general educational policy of the
country and maintain national standards.

Family: The family is the natural and basic unit of society and is entitled to protection by society and
the State.

Medicine: The State shall take all practical measures to ensure the provision of basic medical services
to the population.

Water: The State shall take all practical measures to promote a good water management system at all
levels.

Food: the state shall take appropriate steps to encourage people to grow and store adequate food;
establish national food reserves; and encourage and promote proper nutrition through mass
education and other appropriate means in order to build a healthy State.

Natural disasters: The State shall institute effective machinery for dealing with any hazard or disaster
arising out of natural calamities or any situation resulting in general displacement of people or serious
disruption of their normal life.

CULTURAL OBJECTIVES

Cultural and customary values which are consistent with fundamental rights and freedoms, human
dignity, democracy and with the Constitution may be developed and incorporated in aspects of
Ugandan life.

The State shall—promote and preserve those cultural values and practices which enhance the dignity
and well-being of Ugandans; encourage the development, preservation and enrichment of all
Ugandan languages; promote the development of a sign language for the deaf; and encourage the
development of a national language or languages

The State and citizens shall endeavour to preserve and protect and generally promote the culture of
preservation of public property and Uganda’s heritage.

ENVIRONMENTAL OBJECTIVES
 I. The State shall promote sustainable development and public awareness of the need to
manage land, air and water resources in a balanced and sustainable manner for the present
and future generations.
II. The utilisation of the natural resources of Uganda shall be managed in such a way as to meet
the development and environmental needs of present and future generations of Ugandans;
and, in particular, the State shall take all possible measures to prevent or minimise damage
and destruction to land, air and water resources resulting from pollution or other causes.
III. The State shall promote and implement energy policies that will ensure that people’s basic
needs and those of environmental preservation are met.
IV. The State, including local governments, shall—
 create and develop parks, reserves and recreation areas and ensure the conservation of
natural resources;
 Promote the rational use of natural resources so as to safeguard and protect the biodiversity
of Uganda.

DUTIES OF A CITIZEN

The exercise and enjoyment of rights and freedoms is inseparable from the performance of duties and
obligations; and, accordingly, it shall be the duty of every citizen—

 To be patriotic and loyal to Uganda and to promote its well-being;

 To engage in gainful work for the good of that citizen, the family and the common good and
to contribute to national development;
 To contribute to the well-being of the community where that citizen lives;
 To promote responsible parenthood;
 To foster national unity and live in harmony with others;
 To promote democracy and the rule of law; and
 To acquaint himself or herself with the provisions of the Constitution and to uphold and
defend the Constitution and the law.

RELEVANT CHAPTERS OF THE CONSTITUITON

CHAPTER ONE: THE CONSTITUTION

ARTICLE 1. Sovereignty of the people.

All power belongs to the people who use their sovereignty in accordance with the Constitution.

All authority in the State comes from the people of Uganda; and the people are only governed through
their will and acceptance.

All power and authority of Government and its organs comes from the Constitution, which gets its
authority from the people who allow to be governed in accordance with the Constitution.

The people express their will and acceptance on who shall govern them and how they should be
governed, through regular, free and fair elections of their representatives or through referenda.

ARTICLE 2. Supremacy of the Constitution.

The Constitution is the supreme law of Uganda and has binding/compulsory force on all authorities
and persons throughout Uganda.

If any other law or any custom is inconsistent with any of the provisions of the Constitution, the
Constitution prevails, and that other law or custom shall, to the extent of the inconsistency, be void.

ARTICLE 3: Defence of the constitution

It is prohibited for any person or group of persons to take or retain control of the government of
Uganda, except in accordance with the provisions of this constitution.

Any person or persons by any violate means or unlawful means suspends, overthrows, abrogates or
amends this constitution or any part of it commits treason

ARTICLE 4. Promotion of public awareness of the Constitution.

The State shall promote public awareness of the Constitution by—

Translating it into Ugandan languages and disseminating it as widely as possible; and providing for the
teaching of the Constitution in all educational institutions and armed forces training institutions and
regularly transmitting and publishing programmes through the media generally.

CHAPTER 3: CITIZENSHIP

One is a citizen of Uganda by birth, registration, adoption by a Ugandan when the child is below 18
years, foundling and naturalisation

It also provides for dual citizenship where a citizen of Uganda above 18 years voluntarily acquires
citizenship of a country other than Uganda.

CHAPTER 4: PROTECTION AND PROMOTION OF FUNDAMENTAL AND OTHER HUMAN RIGHTS AND
FREEDOMS

Fundamental rights and freedoms of the individual are inherent and not granted by the state.

The right to an order of habeas corpus shall be inviolable and shall not be suspended.

Every person charged with a criminal offence shall be presumed to be innocent until proved guilty or
until the person has pleaded guilty.

The following rights and freedoms are non derogable

 Freedom from torture and cruel inhuman or degrading treatment or punishment

 Freedom from slavery or servitude
 The right to a fair hearing
 The right to an order of habeas corpus

CHAPTER FIVE: REPRESENTATION OF THE PEOPLE

ARTICLE 59. Right to vote.

 Every citizen of Uganda of eighteen years of age or above has a right to vote.
 It is the duty of every citizen of Uganda of eighteen years of age or above to register as a voter
for public elections and referenda.
  The State shall take all necessary steps to ensure that all citizens qualified to vote register and
exercise their right to vote.
 Parliament shall make laws to provide for the facilitation of citizens with disabilities to register
and vote.

ARTICLE 60. Electoral Commission.

Members of the commission shall be persons of high moral character, proven integrity and who
possess considerable experience and demonstrated competence in the conduct of public affairs.

A person holding any of the following offices shall give up his or her position in that office on
appointment as a member of the commission—

 A member of Parliament;
 A member of a local government council;
 A member of the executive of a political party or political organisation; or
 A public officer.

CHAPTER SIX: THE LEGISLATURE

ARTICLE 77. Parliament of Uganda

There shall be a parliament whose term shall be five years from the date of its first sitting after a
general election.

ARTICLE 78. Composition of Parliament.

Parliament shall consist of—

 Members directly elected to represent constituencies;

 One woman representative for every district;
 Such numbers of representatives of the army, youth, workers, persons with disabilities and
other groups as parliament may determine; and
 The vice president and ministers, who, if not already elected members of parliament, shall be
ex officio members of parliament without the right to vote on any issue requiring a vote in
parliament.

ARTICLE 79. Functions of Parliament.

 Parliament has power to make laws on any matter for the peace, order, development and
good governance of Uganda.
 Except as provided in the Constitution, no person or body other than Parliament has the
power to make provisions having the force of law in Uganda except under authority given by
an Act of Parliament.
 Parliament must protect the Constitution and promote the democratic governance of Uganda.

CHAPTER SEVEN: THE EXECUTIVE

ARTICLE 98. President of Uganda.

The President of Uganda shall be the Head of State, Head of Government and Commander-in-Chief of
the Uganda Peoples’ Defence Forces and the Fountain of Honour.

While holding office, the President shall not be liable to proceedings in any court.
Civil or criminal proceedings may be instituted against a person after ceasing to be President, in
respect of anything done or omitted to be done in his or her personal capacity before or during the
term of office of that person; and any period of limitation in respect of any such proceedings shall not
be taken to run during the period while that person was President.

ARTICLE 108. Vice President.

The president with the approval of the parliament shall appoint a vice president.

ARTICLE 109. Absence of the President.

If the President dies, resigns or is removed from office under the Constitution, the Vice President shall
assume the office of President until fresh elections are held.

Whenever the President is for any reason unable to perform the functions of the office of President,
the Vice President shall perform those functions until the President is able again to perform those
functions.

Where the President and the Vice President are both unable to perform the functions of the office of
the President, the Speaker shall perform those functions until the President or the Vice President is
able to perform those functions or until a new President assumes office.

ARTICLE 111. The Cabinet.

There shall be a Cabinet which shall consist of the President, the Vice President and such number of
Ministers as may appear to the President to be reasonably necessary for the efficient running of the
State.

The functions of the Cabinet are; to determine, formulate and implement the policy of the
Government and to perform such other functions as may be conferred by the Constitution or any
other law.

ARTICLE 113. Cabinet Ministers.

Cabinet Ministers shall be appointed by the President with the approval of Parliament from among
members of Parliament or persons qualified to be elected members of Parliament.

ARTICLE 114. Other Ministers.

The President may, with the approval of Parliament, appoint other Ministers to assist Cabinet

Ministers in the performance of their functions.

ARTICLE 119. Attorney General.

There shall be an Attorney General who shall be a Cabinet Minister appointed by the President with
the approval of Parliament.

A person is not qualified to be appointed Attorney General unless he or she is qualified to practice as
an advocate of the High Court and has so practiced or gained the necessary experience for not less
than ten years.

The Attorney General is the principal legal adviser of the Government.

ARTICLE 120. Director of Public Prosecutions.

There shall be a Director of Public Prosecutions appointed by the President on the recommendation
of the Public Service Commission and with the approval of Parliament.

A person is not qualified to be appointed Director of Public Prosecutions unless he or she is qualified
to be appointed a judge of the High Court.

The functions of the Director of Public Prosecutions are the following—

 To direct the police to investigate any information of a criminal nature and to report to him
orher expeditiously;
 To institute criminal proceedings against any person or authority in any court with competent
jurisdiction other than a court martial;
 To take over and continue any criminal proceedings instituted by any other person or
authority;
 To discontinue at any stage before judgment is delivered, any criminal proceedings to which
this article relates, instituted by himself or herself or any other person or authority; except
that the
 Director of public prosecutions shall not discontinue any proceedings commenced by another
person or authority except with the consent of the court.

CHAPTER EIGHT: THE JUDICIARY

ARTICLE 126. Exercise of judicial power.

Judicial power is derived from the people and is exercised by the courts established under the
Constitution in the name of the people and in conformity with law and with the values, norms and
aspirations of the people.

In adjudicating cases of both a civil and criminal nature, the courts must, subject to the law, apply the
following principles—

 Justice shall be done to all irrespective of their social or economic status;

 Justice shall not be delayed;
 Adequate compensation shall be awarded to victims of wrongs;
 Reconciliation between parties shall be promoted; and
 Substantive justice shall be administered without undue regard to technicalities.

ARTICLE 128; Independence of the judiciary

In the exercise of judicial power, the courts shall be independent and shall not be

Subject to the control or direction of any person or authority

ARTICLE 129. The courts of judicature.

The judicial power of Uganda is exercised by the courts of judicature which shall consist of—

 The Supreme Court of Uganda;

 The Court of Appeal of Uganda;
 The High Court of Uganda; and
 Such subordinate courts as Parliament may by law establish, including qadhis’ courts for
marriage, divorce, inheritance of property and guardianship, as may be prescribed by
Parliament.
CHAPTER ELEVEN: LOCAL GOVERNMENT

ARTICLE 176. Local government system.

The system of local government in Uganda shall be based on the district as a unit under which there
shall be such lower local governments and administrative units as Parliament may by law provide.

The system of local government is based on democratically elected councils on the basis of universal
adult suffrage.

ARTICLE 180. Local government councils.

A local government shall be based on a council which shall is the highest political authority within its
area of jurisdiction and which has legislative and executive powers to be exercised in accordance with
the Constitution.

Parliament shall by law prescribe the composition, qualifications, functions and electoral procedures
in respect of local government councils, except that—

 The person elected as district chairperson of a local government shall be a member of

the council;
 One-third of the membership of each local government council shall be reserved for
women;
 Any law enacted by virtue of this article shall provide for affirmative action for all
marginalised groups.

A person shall not be a member of a local government council unless that person is a citizen of

Uganda

ARTICLE 188. Chief Administrative Officer.

There shall be a chief administrative officer for every district.

The chief administrative officer shall be appointed by the district service commission and shall be the
chief accounting officer for the district.

Parliament shall by law establish the qualifications and functions of the chief administrative officer.

ARTICLE 203. Resident District Commissioner.

There shall be for each district a resident district commissioner who is a senior civil servant appointed
by the President.

The functions of a resident district commissioner are—

 To coordinate the administration of Government services in the district;

 To advise the district chairperson on matters of a national nature that may affect the
district or its plans and programmes and particularly the relations between the district
and the Government; and
 To carry out such other functions as may be assigned by the President or prescribed
by Parliament.

ARTICLE 206. Parliament to make laws regarding local government.

Subject to the provisions of this Constitution, Parliament shall make laws relating to local government
for the purpose of giving full effect to the Chapter.

CHAPTER THIRTEEN: INSPECTORATE OF GOVERNMENT

ARTICLE 223. Inspectorate of Government.

There shall be an Inspectorate of Government.

ARTICLE 225. Functions of inspectorate.

The functions of the Inspectorate of Government shall be prescribed by Parliament and shall include
the following—

1. to promote and foster strict adherence to the rule of law and principles of natural justice in
administration;
2. to eliminate and foster the elimination of corruption, abuse of authority and of public office;
3. to promote fair, efficient and good governance in public offices;
4. subject to the provisions of the Constitution, to supervise the enforcement of the Leadership
Code of Conduct;
5. to investigate any act, omission, advice, decision or recommendation by a public officer or any
other authority to which this article applies, taken, made, given or done in exercise of
administrative functions; and
6. to stimulate public awareness about the values of constitutionalism in general and the
activities of its office, in particular, through any media and other means it considers
appropriate.
7. The Inspectorate of may investigate any matter referred to above, on its own initiative or upon
complaint made to it by any member of the public, whether or not that person has personally
suffered any injustice by reason of that matter.

ARTICLE 230. Special powers of inspectorate.

The Inspectorate of Government has power to investigate, cause investigation, arrest, cause arrest,
prosecute or cause prosecution in respect of cases involving corruption, abuse of authority or of public
office.

The Inspectorate of Government shall have power to enter and inspect the premises or property of
any department of Government, person or of any authority, to call for, examine and where necessary,
retain any document or item in connection with the case being investigated, found on the premises;
and may, in those premises, carry out any investigation for the purpose of its functions.

CHAPTER 15 LAND AND ENVIRONMENT

Land in Uganda is owned in accordance with the following land tenure systems;

 Customary
 Freehold
 Mailo
 leasehold

In the coming into force of the constitution all people holding land under customary tenure may
acquire certificates in a manner prescribed by parliament.

CHAPTER SIXTEEN: INSTITUTION OF TRADITIONAL OR CULTURAL LEADERS.

ARTICLE 246. Institution of traditional or cultural leaders.

Subject to the Constitution, the institution of traditional leader or cultural leader may exist in any area
of Uganda in accordance with the culture, customs and traditions or wishes and aspirations of the
people to whom it applies.

“Traditional leader or cultural leader” means a king or similar traditional leader or cultural leader by
whatever name called, who derives allegiance from the fact of birth or descent in accordance with the
customs, traditions, usage or consent of the people led by that traditional or cultural leader.

WHAT IS A CONSTITUTION?

A body of fundamental principles of government in a nation, either implied in its laws, institutions and
customs or embodied in one fundamental document or in several.

The fundamental law that is put in place to govern a particular society.

It consists of the basic and fundamental laws which the inhabitants of the state consider to be essential
for their governance and well-being.

What are the characteristics of a constitution?

 Supremacy; This constitution is the supreme law of Uganda and shall have binding
force on all authorities and persons throughout Uganda; Article 2(1) (Salvatori Abuki
vs. A.G)
 Timeless; it is made to last for undefined period of time. It is not restricted in its time
of operation unless it is stated that it is an interim constitution and that it can be
changed any time.
 Certainty; the provisions of the constitution should be well known.
 Flexible; it should be flexible by nature and should be acceptable at all times
 Satisfactory; it should satisfy the majority opinion of the citizens so that they give it
habitual obedience and loyalty.

The sources of the constitution

 Legislation; constitutional law is ascertained by the various laws passed by the

sovereign state.
 Judicial precedents/case law; procedures are decisions of the courts of authority. It is
important because it discusses the principals of the constitution.
 International conventions; they are accepted practices over along period of time .
They may not be in writing but people respect them. (UDHR, ICCPR, ICESCR)
 Authoritative writings there are different writers on constitutional matters such as
Justice Kanyeihamba, Justice Benjamine Odoki, Oloka Onyango and others
 Customs different customs and cultures followed by particular can be used as basis
for some laws that are found in the constitution

Types of constitutions

•Constitutions may also be classified according to the type of government they create. :

The written and unwritten constitutions

A written constitution is where all the legal rules regulating the allocation of functions and structures
are contained in one or more documents which passes the law in force.

An unwritten constitution is where some of the fundamental laws are to be ascertained from Sources
other than a written document. An example is the constitution of the

United Kingdom and Northern Ireland.

The Rigid and Flexible constitutions

The Rigid constitution is where the methods of amendments make it deliberately difficult to change
the provisions of the constitution.

A constitution is regarded as flexible where there is an ease in the amendment of the constitution
which may be through a simple Act of parliament.

The General and Detailed constitutions

A general constitution is one which is concerned with the establishing a general frame work of
governance and stops at it.

A detailed constitution is one which has detailed use of the powers, functions and resources.

Classification of constitutions based on the type of government it creates.

The Democratic government; it is a government in which the people participate fully in the decisions
which affect the country.

Dictatorship government; is where the power is in the hands of one person or a small group of people.

The Monarch government; is the system of government where the ascension to office is determined
by the persons descend and is usually determined by blood relations. Only a particular group of people
can be leaders.

The Republic government; A system of government in which the people hold sovereign power and
elect representatives who exercise that power.

The unitary and the federal government

The unitary state is one that is organized under a single central government.

In Federal state or government, the powers of the government are divided between the central and
the constituent government.

THE DOCTRINE OF SEPARATION OF POWERS / CHECKS AND BALANCES

The doctrine of separation of powers can be defined as the division of the government authority into
branches of government that is the executive, the legislature and the judiciary.

In its strict terms the doctrine advocates that the three organs of the state should be kept in separate
compartments.

The doctrine has three distinct meanings; that person or agencies of one organ should not be allowed
to hold a position in the other two organs, no organ should exercise the functions of the other two
organs and no organ of government should interfere with any other organ of government.
(Montesquie)

Marburg vs. Madison; the judiciary is independent of both the executive and the legislature and has
the power of declaring invalid the acts of the executive and the laws of the legislature if they are
repugnant to the constitution.

The doctrine of separation of powers

Director of public prosecutions vs. Daudi Pete the court stated that the doctrine of separation of
powers is infringed upon when either the executive or the legislature takes over the functions of the
judiciary involving the interpretation of the laws and the adjudication of the rights and duties in
disputes either between individual persons or between the state and the individual persons.

Rev. Christopher Mtikila vs. A.G, courts could only interfere in the executive or legislative action to
protect and promote the rights of an individual. They could not formulate the government policy nor
compel legislation.

The system of checks and balances

There is no absolute separation of powers but rather the system of checks and balances. It is the
system where no single organ should usurp the authority at the expense of others.

Though the constitution provides for the checks and balances, the courts encourage more of the
doctrine of separation of powers. Rtd Col. Dr. Kizza Besigye [Link] Electoral Commission and Yoweri
Museveni. The judiciary was seen to check the executive.

This has not always been the case, in the high Court, the Black Mambas besieged the court. “The raping
of the temple of justice” by Justice Ogoola.

The doctrine of parliamentary supremacy Art. 79

The doctrine of parliamentary supremacy means that the parliament stands supreme with the power
to influence all political organs of the state. It is based on the concept that parliament, because of it
composition that represents the will of the people thus when it acts, it acts on the will of the people.
It also suggests that the power of the parliament is unlimited. However this doctrine is limited in
Uganda today because of the supremacy of the constitution under Article 2(1) of the constitution.
Zachary Olum and another vs. the A.G and Paul Ssemwogerere and another vs. A.G

This therefore shows that the judiciary has the power to declare actions and Acts of parliament
unconstitutional

Judicial independenceArt.128

The judiciary should not be subjected to any direction or control and this should be ensured through

1. Securing the tenure of judicial officers

2. Adequate payment
3. Given the necessary facilities
4. Judicial immunity of judicial officers

Ngoma Neima v . Byanyima the where allegations that officials from the presidents office where
not only seen around the court but also called the principle Judge instructing him to remove
the sitting Judge from the election petition.
CITIZENSHIP

Article 9; every person, on the commencement of this constitution, is a citizen of Uganda shall
continue to be such a citizen Creates a legal relationship between the state and the individual
Allegence, Free movement, Jurisdiction

Types of citizenship

1. By birth; Article 10
2. By adoption; Article 11
3. By registration; Article 12, 14
4. By naturalization; Article 13
5. Dual citizenship; Article 15

Loss of citizenship Art.14

 Take arms against Uganda or collaborate with its enemy

 If acquisition was by fraud, deceit, bribery or forged.
 Espionage against Uganda
 Denounce your citizenship

The Rule of Law

Means that both the governed and the rulers are equally subject to the same law of the land. Under
the rule of law the authority of the law does not depend so much on the law’s instrumental
capabilities, but on its degree of autonomy ,is, the degree to which the law is distinct and separate
from other normative structures such as politics and religion. Prof. Dicey

It means governing according to the law, every government action must be done in conformity with
the law i.e the law takes precedence over government action, thus all laws must be just and equal.

Meaning of the rule of law

 Equality before the law. No man is above the law but every man whatever be his rank or
condition is subject to the ordinary law of the realm and amenable to the jurisdiction of the
ordinary tribunals.
 Rule of law as the regulator of government power/ supremacy of the law of the land.
Government cannot act other than in the accordance of the law of the land.
 Existence of the rights of the individual that are enforceable by the ordinary courts of the land;

Land under the Constitution Art.237

Who may acquire land? Citizens and leases for non-citizens

The constitution provides for acquisition of certificates for untitled land or conversion to freehold

Inspectorate of Government (ombudsman)

Who it consists of: – IGG and deputy inspectors General

Who qualifies: – judge of H/C, citizen, high moral character, experienced in public affairs

Who appoints: - president with the approval of parliament

How long is the term: - 4 years and is eligible for reappointment only once
Functions of IGG

 Adherence to the rule of law and principles of natural justice

 Eliminate corruption, abuse of authority and of public office
 Promote fair, efficient and good governance
 Supervise the enforcement of the leadership code of conduct
 Stimulate public awareness on values of constitutionalism

The principles of constitutional interpretation

Article 137 provides for the questions as to the interpretation of the Constitution. This is done in courts
following certain principles.

A.G vs. Lohay Akonaay and Joseph Lohay civil Appeal 1994. The court held that the Tanzanian,
constitution is supreme to every other law or institution and cannot be interpreted in a manner that
surbondiates it to any other law.

The principles of constitutional interpretation

The liberal interpretation of the constitution the purpose and effect interpretation of the constitution]

The principle of integration or harmonization of the provisions of the constitution

Human rights [chapter 4 of the constitution]

1. Art.30 right to education, (Sharon vs. Makerere University)

2. Art. 29 protection of the freedom of conscience, religion, expression, movement, assembly
and association, (Oyango Obbo and Andrew M vs. A.G)
3. Art.26protection from the deprivation of property, (Salvatori Abuki vs. A.G)
4. Art.24 respect for the dignity and protection from inhuman and degrading treatment.
(Salvatori Abuki vs. A.G)
5. Art.41 right to access of information, Re; (Jim Katugugu and others vs. A.G)
6. Art.21 Equality and freedom from discrimination, (Julias Ishengoma and another vs. A.G)
7. Art 22 protection of the right to life( Salvatori Abuki vs. A.G)

Limitations on human rights

Article 43(1) In the enjoyment of the rights and freedoms prescribed in this chapter no person shall
prejudice the fundamental or other human rights and freedoms of others or of the public interest.
(Dimanche Sharon V. Makerere University)

Article 44 Non- derogable rights;

 Freedom from torture and cruel, inhumane or degrading treatment or punishment

(Salvatori Abuki vs. A.G)
 Freedom from slavery or servitude (Tinyefuza vs. A.G)
 The right to a fair hearing (Vincent l’Emoru vs. A.G)
 The right to an order of habeas corpus (Re Sheik Abdul K.S. & another)

Constitutional Amendment

Chapter 18 provides for amendment,

 There has to be an Act of Parliament Article 259(2)

 It should be supported by a second and third reading by not less than two thirds of members
of parliament
 It should be approved through a referendum Article 260 Paul Semogerere &2 others V. AG
SCCA 1/02
4.
 5. CONSTITUTIONAL LAW QUESTIONS.
1. The 1902 order in council under Article 15 provided for the reception clause. What do you
understand by this clause?
It is defined to be applied in the protectorate during; judicial determination and disputes among
people and also among the protectorate and the people.

2. What is meant by the term repugnancy clause, in your own words?

It means that in all civil and criminal matters to which natives are publics had to be guided by
native law provided it was not inconsistent to justice and morality or with the order in council,
ordinance or any regulation under the order in council.

3. What were the Busuulu and Enjujo laws enacted for?

They were meant to bring an end to the unlimited amount of rent and tribute that the landlords
could extract from tenants (bataka) and also guaranteed complete and hereditary security and
tenure by not being easily evicted for failing to pay rent

4. What is the distinction between an interim and republican constitution?

An interim constitution operates for a specific period and time and at the expiry of that period it
stops having effect while a republican constitution is one meant to last for an undefined period
of time and emphasizes principles such as democracy by holding elections.

5. State at least two characteristics of the constitution.

 It has to be supreme over other laws.
 It has to be certain in terms of interpretation.

6. Countries with a constitution, uphold it as a source of law, however, there are states that do
not have one. What could be the source of their law?
 Bill of rights of 1688
 Parliamentary legislation
 Judicial precedent

7. While the doctrine of rule of law is meant to guide law and policy makers, judges and law
enforcement agencies in to establishing a democratic society, what are some of the principles
of this doctrine?
 Judicial independence Article 128
 Constitutional supremacy Article 2 2)
 Democracy

8. Montesquieu once stated that to protect society from tyranny there should be three organs of
governance in respect of exercise of powers as well as the manner in which such powers
should be exercised. List those organs?
 Executive
 Legislature
 Judiciary

9. What is meant by a rigid constitution?

 A rigid constitution is one that cannot be changed or even amended; all stakeholders must be
involved in order to change it which takes a long time to be affected.

10. What is constitutional monarchy?

It is one in which the rule is exercised according to the established which usually limits the
powers that may be enjoyed by the monarchical leader who just succeeds other than being
elected.

11. List the non derogable rights under the constitution?

 Right to a fair hearing
 Right to the order of habeas corpus
 Right against subjection to slavery
 Freedom from torture, cruel and inhuman or degrading treatment.

12. How is the aspect of ministerial responsibility applied in Uganda today?

It is applied through individual and collective responsibility.

13. What is the role of the legislature in enhancing checks and balances, cite an example thereto?
The legislature makes laws to control the exercise of the executive for example the Onapito bill
which was an attempt to limit members of parliament appointed as cabinet ministers, that they
should resign their parliamentary seats upon appointment.

14. Under what circumstances can a new constitution that has been unconstitutionally past are
held by courts as valid.
Such a constitution can be held by court as valid through resolution in law.

15. What do you understand by the term constitution?

A constitution is a fundamental law upon which a particular society is governed.

16. What is the import of Article 98(4)?

The import thereto is that it is meant to protect the president while still in office from court
proceedings so that he/she can avoid interference by court process while doing his work.

17. What is meant by judicial immunity?

Judicial immunity is a situation whereby one is exempted from liability to any action or omission
by that person in the exercise of judicial power.

18. List at least two rules of constitutional interpretation.

 The constitution must be interpreted as a whole
 the constitution is sui generis

19. Mention at least three principles contained in the preamble of the 1995 Ugandan constitution.
These could include unity, peace, equality, democracy and freedom.

20. How does the constitution deal with the law that existed before the coming into force of the
1995 constitution?
The constitution states that such existing law is not affected by the coming into force of the
constitution but it must be interpreted with or construed with such modifications, adaptations,
 qualifications and exceptions as may be necessary to bring it into conformity with the
constitution.

21. What are the limitations imposed on the traditional leaders by the 1995 constitution?
Traditional leaders are not to participate in partisan politics and they cannot compel any one to
pay allegiance or contribute to the cast and maintaining them. They are also not to exercise any
administrative or executive powers of government.

22. How does one acquire citizenship in Uganda?

 By birth
 By registration
 By adaptation of children below the age of 5 years found in Uganda whose parents are
not known.
 By neutralization

23. List Uganda’s courts of record

 Supreme court
 Court of appeal
 High court of Uganda

24. What is meant by judicial independence?

Judicial independence is that which while exercising their duties, judicial officers are not to be
subject to the control or direction of any person or authority.

25. How are bill moved in parliament?

 By private member bills
 By a legislative proposal by standing committee in parliament
 By legislative proposals through statutory instruments under the president or minister
or public body.

26. What is a decree?

A decree is a rule of law issued by a head of state for example a president of a republic state.

27. Which Article in the constitution provides for the inconsistency principle?
28. Article 2 2) provides for the inconsistency principle.

29. Organized societies are characterized by the presence of……………………..and…………………………

 Government
 A constitution.

30. Constitutions are concerned with basic issue list at least three.
 It must indicate for who has the power to make laws that is legislative powers
 It must put in place a judiciary; how power is exercised
 Provide for citizenship
 Must set out fundamental rights of individuals
 Provide for land tenure system
 Public finance should be provided for
 Provide for establishment of security organs
31. List the four classifications of the constitution
 written or unwritten
 Rigid and flexible constitution
 General and detailed constitution
 By type of government

32. What are the three principles of democracy?

 Rule of law
 Periodic elections in line with reassessment of the people elected.
 Equality.

33. What is the purpose of the doctrine of checks and balances?

The purpose of the doctrine of checks and balances is to ensure that each organ of government
enjoys a balanced relationship with other organs and that none of the organs are capable of
exceeding its powers under the constitution.

34. “Although the rules and responsibilities of the organs of the state are far off different. They
are also closely connected. None of them can work properly on its own they are like three
stones under a cooking pot each plays distinctive role but always in cooperation with each
other so that if any one of them is remove, the pot collapses” per J Odoki. What does this
statement mean?
This statement basically illustrates the doctrine of checks and balances within the 3 organs of
government that is; legislature, executive and judiciary.

35. Under what provision and of which law provides for presidency in Uganda?
Article 98of the 1995 Constitution of the Republic of Uganda.

36. What is the primary function of the president in Uganda?

The primary function of the president is to coordinate and oversee the exercise of executive
power and governess of the country.

37. Articles 102 of the 1995 constitution of the republic of Uganda provides for the qualifications
of the president, which include:-
 Citizen of Uganda,
 He/she should not be less than 35 years and not more than 75 years of age
 He/she should be a person qualified to be a member of parliament.

38. How is the vice president appointed and under which constitutional provision.
Article 108 2) provides that the president shall with the approval of parliament by a simple
majority appoint a vice president.

39. What provision provide for the cabinet and members there to list?
Article 111 (1)which provides that there shall be a cabinet which shall consist of the president,
vice president, prime minister, and such number of ministers as may appear to the president to
be reasonably necessary for the efficient running of the state.

40. Rights and privileges of the president include:-

  Presidential immunity from civil and criminal proceedings; as a party or witness.
 He/she shall be housed with official government accommodation.
 He/she will be provided with allowances, transport, educating and health of president
and his family.
 He/she shall be exempted from official taxation.

41. Under what situations can a president be held liable, indicate the provision thereto:-
Article 98of the constitution provides for the liability of the president in regard to 2 elements
that is; it shall not operate while one is in office but at leave or censure; for not liable; clause
[Link], proceedings shall be carried out on acts done in office in his /her personal
capacity that is unofficial act under clause 5.

42. What constitutional provision provides for the hierarchy of courts?

Article 129provides for the hierarchy of courts and lists them according to their superiority;
Supreme Court, court of appeal’ high court and goes ahead to provide for subordinate courts
established under law by parliament.

43. Which court has unlimited original jurisdiction in civil and criminal matters; addition of the
provision will carry more marks.
The high court of the Republic of Uganda as provided for under Article 139 of the Constitution of
the Republic of Uganda.

44. Court of appeal under Article 137(1) could sit as………………. In regard to interpretation of the
constitution;
It could sit as a constitutional court in this regard.

45. What are bills of rights?

These are declarations of individual rights and freedoms usually issued by the national
government.

46. Define a federal government?

This is a union of states in which sovereignty is divided between a central authority and
component authorities.

47. What are the prerogative orders /remedies available to an aggrieved party; providing
definitions thereto?
 Habeas corpus; this is a writ by a person who considers himself unlawfully detained
applies for giving reasons to the high court for his release
 Mandamus; This may be issued where any person has been injured by failure of an
administrative agent to do his duty. It is only available when the aggrieved party has no
advantage or remedy open to him through law.
 Prohibition; this is used for the purpose of preventing an inferior court or tribunal from
exceeding its jurisdiction.

48. What do you understand by the term separation of powers?

 This is the idea that the powers of a sovereign government should be split between two or more
strongly independent entities preventing any one person or group from gaining too much
power.

49. What are the functions of the three different arms of government?
 Executive; its primary objective is to conduct the affairs of the state especially into
complementing the government policies.
 Judiciary; is entrusted to administer justice through the courts of judicature.
 Legislature; has powers to make laws that govern the country.

50. What laws are applicable in Uganda?

 Statutory law
 Common law
 Doctrines of equity
 Customary laws

51. Define democracy.

Democracy is a system of government in which the people participate in decisions which affect
the country.

52. What is the difference between public and private laws?

Public law is a theory of law that governs the relationship between the state and the individual
who is considered to be either a company or a citizen while private law includes the relationship
between individuals, or private relationships between citizens and companies.

53. What are the sub divisions of public law and what they cover?
 Constitutional law which covers the different branches of the state.
 Administrative law which regulates international trade, manufacturing, pollution,
taxation
 Criminal law induces state imposed sanctions for individuals or companies in order to
achieve justice and social order.

54. State the difference between statute and Common Law.

Common law is based on the practices and customs of the people of England while statutory law
is written law decided by the legislature or other government agency.

55. Define a confederation.

A confederation is where the central power acts directly upon individuals as well as upon states
as thus creating a problem of duo allegiance.

56. What principles are involved in the exercise of judicial powers in Uganda?
 Justice shall be administered without undue regard to technicalities.
 Justice shall be done irrespective of social or economic status.
 Adequate compensation shall be awarded by courts to victims of wrongs.
 Reconciliation is to be promoted within parties.

57. In relation to Article 9 and the first schedule of the constitution, define a citizen.
 Every person who, on the commencement of this constitution, is a citizen of Uganda shall
continue to be such a citizen.

58. What are the duties of a citizen?

 To respect the national anthem, flag, coat of arms and currency
 To respect the rights and freedoms of others
 To protect children and vulnerable persons against any form of abuse, harassment or ill
treatment.
 To protect and preserve public property
 To defend Uganda and to render national service when necessary.
 To cooperate with lawful agencies in the maintenance of law and order.
 To pay taxes
 to register for electro and other lawful purposes
 To combat corruption misuse or wastage of public property.
 To create and protect a clean and healthy environment
 To perform such other national duties and obligations as parliament may by law
prescribe.

59. What are the elements of rule of law?

 Governance and exercise of authority should be according to the law and in respect
according to the constitution as provided for under Article21)
 Equal protection under the law and equality before the law as under Articles 28 and 126
 Independence of the judiciary.
 Separation of powers

60 Fundamental human rights are inherent and granted by the state, what constitutional
provision guarantees that?
Article 20 1)of the 1995 Constitution of the Republic of Uganda provides for the fact that
human rights are inherent and granted by the state.

61 What are fundamental human rights and mention at least two?

These are rights that are inherent and not granted by the state and examples thereto could
include a right to life and a right to privacy.

62 Article 274(2) provides for existing law, what do you understand by this term?
The written and unwritten law in Uganda or any part of it as existed immediately before the
coming into force of this constitution, including any Act of parliament or statute or statutory
instrument enacted or made before that date which is to come into force on or after that
date.
63 What is a statutory instrument?
This is a document made by the minister or president or any other authority whose power is
given by an Act of parliament to make such law.

64 What entails the leadership code of conduct according to Article 233 of the constitution of
the Republic of Uganda?
 Shall require specified officers to declare incomes, assets and liabilities from time to
time and how they acquired and incurred them,
  Prohibit conduct likely to compromise the honesty, impartiality and integrity of
specified officers; that are likely to lead to corruption in public affairs; and which is
detrimental to public good and good governance.
 Prescribes penalties to be imposed for breach of code, without prejudice to the
application of criminal penalties prescribed for the breach in question.
 Prescribe powers, procedures and practices for ensuring the effective enforcement
of the code
 Make any other provision as may be necessary for ensuring the promotion and
maintenance of honesty, probity, impartiality and integrity in public affairs and the
protection of public funds and other public property

65 What is the constitutional guarantee of a person being tried in a language he does not
understand, what provision provides for this statement?
In such a situation, such person should be given an interpreter as provided for under Article
28 3) a)of the Constitution of the Republic of Uganda.

66 When does one attain majority age?

Article 59 1)of the Constitution provides that one attains majority age at 18.

67 How many members constitute an electro commission and give the provision there to?
According to Article 61(1) an electoral commission shall consist of a chairperson, deputy
chairperson and five other members appointed by the president with the approval of
parliament.

68 What are the functions of the electoral commission according to Article 61 of the
Constitution?
 To ensure that regular, free, and fair elections are held.
 To organize, conduct and supervise elections and referenda in accordance with the
constitution
 To demarcate constituencies in accordance with the constitution.
 To ascertain, publish and declare in writing under its seal the results of the elections
and referenda.
 To compile, maintain, revise and update the voters register.
 To hear and determine election complaints arising before and during polling.
 To formulate and implement voter educational programmes relating to elections.
 To perform such other functions as may be prescribed by parliament by law.

69 Article 72 of the Constitution provides for the right to form political organizations, under
what circumstances is this possible?
 The organization shall not as a political party or organization unless it conforms to
the principles laid down in this constitution and it is registered.
 Parliament shall by law regulate the financing and functioning of political
organization.
 Any person is free to stand for an election as a candidate independent of a political
organization or party.
 Parliament shall regulate the manner of participation in and financing of elections by
individuals seeking political office as independent candidate.
70 What is a bill?
A bill is a piece of proposed legislation in parliament.

71 When does a bill become law?

A bill becomes law upon the assent by the president.
72 Under what process does a bill go through to become Law; list them:-
 First reading
 Second reading
 Committee stage
 Recommitted and third reading of the bill.
 Assent to by the president.

73 Where is a newly established law published after assent by the president?

After assent by the president, a newly established law is published in the gazette.

74 Outline two elements meant to ensure a free and fair election.

a. Right to register and vote
b. Election must be conducted in accordance with the law and procedure laid down by
parliament
c. Result of the election must be based on the majority of the votes cast
d. Qualified voters should not be disenfranchised.
e. Secret ballot using ballot box at each polling station for all candidates in an election
f. Equal security to prevent electoral violence
g. Independent and impartial authority- electoral commission

75 What happens when two constitutional provisions are in conflict?

The principle of harmonization is to be called in aid. It holds that the entire constitution has
to be read as an integrated whole and no one provision destroying the other but each
sustaining the other if the balancing act should succeed.

76 What is meant by the constitution being interpreted as a whole?

No single provision of the constitution is segregated from others and to be considered alone
but that all provisions bearing upon a particular subject are to be brought into view and to
be so interpreted as to effectuate the greater purpose of the instrument.

77 What’s the test in determining whether an enactment infringes a fundamental freedom?

Examine its effects in violating a right guaranteed by the constitution and not its subject
matter.

78 When does court consider international intervention during the interpretation of the law?
Where the words of the constitution are ambiguous or unclear or are capable of several
meanings and need aid in construction to search for the correct construction e.g.
international instruments to which the country has acceded.

79 What is meant by crossing of the floor in parliament?

This is when members of parliament cross from one political party to the other in which they
were not formerly elected in.
80 Which office in the government is designed to check on executive excesses (abuse of
office)?
The office of the Inspector General of Government that investigates into allegations of
corruption, maladministration and abuses of human rights.

81 What is meant by the inception non-partisan system of government?

It’s a system of representative government such that universal and periodic elections take
place.

82 What is meant by expeditious resolution of disputes?

Trial within reasonable time which means that once an accused is charged with a criminal
offence, his trial must commence as soon as possible and when commenced, should be
completed without undue delay.

83 What were some of the elements outlined in the ten point program me as guiding
philosophy of the NRM government?
a. Restoration of democracy, rules of law and respect of human rights.
b. Elimination of corruption.
c. Creation of a self-sustaining and integrated economy.

84 Give two significant implications of the 1962 constitution abrogated in April 1966?
a. Abolition of kingdoms in Uganda i.e. the federal status of kingdoms
b. Declaration of Uganda as a republican state.
c. Promulgation of the 1966 interim constitution.

85 What do you consider to have been the historical significance of the 1902 Uganda order in
counsel in the constitutional development of Uganda?
a. It contained the reception clause that defined the law to be applied in the
protectorate and in particular in the judicial determination of disputes and matters
of court.
b. It also contained the repugnancy clause that recognized the application of native
laws and customs in dispute involving natives as long as they were not repugnant to
natural justice and morality.
c. It was the first legal instrument to establish a framework of government for the
whole of the protectorate. It put in place the basic elements and structures of
government e.g. introduction of district organs of government.

86 What was the pigeon hole constitution?

The 1962 independence constitution was abolished and in its place promulgated the 1966
interim constitution also known as the pigeon hole constitution. As members were
assembled in the parliament with troops surrounding the parliamentary buildings, Mr.
Obote forced them to sign and agree to the promulgation. The members only found copies
of it later in the pigeon holes.

87 Definition of Bye laws?

Laws of local or limited application which are made by local councils or other bodies, using
powers granted by an Act of Parliament.
88 When does parliament delegate its duty of legislation?
By means of an Act of Parliament e.g. the local Government Act entrusted with the
responsibility of enacting laws for as long as they are not inconsistent with the constitution.

89 What are some of the principles that a multiparty political system should confirm to?
a. Every political party shall have a national character;
b. The organization shall conform to the democratic principles enshrined in the
constitution
c. Political parties shall be required by law to account for the sources and use of their
funds and assets
d. Members shall regularly be elected by citizens of Uganda

90 How can the state promote public awareness of the constitution?

a. By translating it into different Ugandan languages
b. Providing for the teaching of the constitution in all educational institutions
c. Regularly transmitting and publishing the programmes through the media.

91 What is meant by prerogative of mercy granted by the president?

This is when the president grants to any person convicted of an offence a pardon either free
or subject to lawful conditions but with the advice of his committee.
 6. THE LAW OF CONTRACT SUMMARY
A contract is a legally binding agreement between two or more people

OFFERS
Definition of an offer: An offer is an expression of willingness to contract on certain terms made with
the intention that a binding agreement will exist once the offer is accepted.

Two types of offer

Unilateral offers: capable of being made to the world as a whole.

Bilateral offers: made to a specific individual or group.

Offers and invitations to treat

 Adverts: most advertisements are an invitation to treat.

 Display of goods for sale: shop windows (FishervBell); self-service displays (Phar-maceutical
Society of Great BritainvBoots Cash Chemists Ltd).
 Auction sales.
 Tenders.
 Ticket cases.

Offers distinguished from requests for information

 Negotiations for the sale of land (Harvey v Facey).

 Preliminary statements (Clifton v Palumbo).
 In some circumstance the words ‘I would accept . . .’ can amount to an offer (Bigg v Boyd
Gibbons Ltd).

Communication of offers

 An offer must be fully communicated to the offeree.

 An offer must be received by the offeree (Taylor v Laird).
 An offer will lapse after the passing of a reasonable period of time.

ACCEPTANCE
Definition: ‘a final unqualified expression of assent to all the terms of an offer’

Two principles of acceptance:

 Acceptance must be unequivocal and unconditional.

 The acceptance must be communicated to the offeror.

The mode of acceptance

An offer can be accepted in writing or verbally.

Acceptance can be implied by conduct (Brogden v Metropolitan Railway Co. Conversely see
Weatherby v Banham).

NB: Unilateral contract and acceptance thereof by conduct (CarlillvCarbolic Smoke Ball Co.).
An offer may state a particular requirement that must be complied with in order for acceptance to
have taken place (Western Electric LtdvWelsh Development Agency).

Counter-offers

A counter-offer destroys the original offer (Hyde v Wrench).

Conditional acceptance

Conditional acceptance is not full acceptance or a counter-offer.

The parties have no intention to be legally bound until a condition has been fulfilled, e.g. ‘Sold,
subject to contract’.

Clarifying the terms of the offer

Seeking clarification of the terms by making a genuine inquiry will not amount to a counter-offer
(Stevenson, Jacques & [Link]).

Communication of acceptance

General rule

Acceptance must be communicated to the other party (PowellvLee). See Lord Denning,
EntoresvMiles Far East Corporation.

Exceptions to the general rule

The effect of silence: A party normally cannot accept a contract by remaining silent (Felthouse v
Bindley).

NB: Ammons v Wilson, where the examination of the conduct of the parties estab-lishes that
acceptance by silence was possible.

The postal rule:

Acceptance takes place immediately the letter is validly posted (Adams v Lindsell)

Valid posting is when the letter is placed into a post box or handed to a person authorised to receive
or collect letters.

Instantaneous forms of communication:

Telex – acceptance occurs at the place when the telex was received.

A notice of withdrawal sent during office hours is effective the next working day

E-commerce: Websites normally amount to an invitation to treat.

The termination of offers

 Acceptance of an offer also terminates the offer.

 Revocation
 death
 An offer can be revoked at any time prior to acceptance.
 The offeror does not have to keep his offer open for or until a specified date or time
The rule: for revocation to be effective, it must be communicated to the offeree (Byrne v Van
Tienhoven).

Exceptions to the rule:

 Where revocation would be received subject to the offeree’s negligence.

 Where an offer has been made to the general public (Shuey v US).
 Unilateral contracts;- Once a unilateral offer is made, the courts may imply an undertaking
that the accepter would be given a reasonable opportunity to perform the contract.

Rejection: - Occurs when a counter-offer is made (HydevWrench). Rejections are not effective until
communicated to the offeror.

Lapse of time: An offer will lapse after the passage of a reasonable amount of time

Death: - The deceased’s representative should be able to accept/reject or enforce a contract that is
not for the deceased’s personal service. A contract for personal services will terminate automatically
on the offeror’s death.

Certainty of terms

The contract is uncertain but has yet to be performed. Vague terms will render the contract
unenforceable (Scammell and Nephew Ltd v Ouston).

The contract is uncertain but performance has commenced Vague terms are more likely to be
enforced by the courts.

CONSIDERATION.
Definition

A valuable consideration in the sense of the law, may consist either in some right, interest, profit or
benefit accruing to one party, or some forbearance, detriment, loss or responsibility given, suffered
or undertaken by the other (CurrievMisa).

An act or forbearance of one party, or the promise thereof, is the price for which the promise of the
other is bought, and the promise thus given for value is enforceable (DunlopvSelfridge).

The sub-principles:

Consideration may be executed or executory but not past

Executory consideration: Created by the defendant’s promise in return for the plain-tiff’s promise
over a future agreement.

Executed consideration: Occurs when one party has completed (executed) his side of the bargain
but the other party’s consideration is still unperformed (executory).

Past consideration

Past consideration is no consideration’ (e.g. RoscorlavThomas; Re McArdle).

Exceptions to the past consideration rule

  The principle in Lampleigh v Braithwait,(doing something that is more than what is expected
of you)
 Statutory exceptions
 Limitation Act
 Bills of Exchange Act

Consideration must move from the promisee though not necessarily to the promisor: The plaintiff
can only enforce the defendant’s promise if he can demonstrate his consideration for that promise
(Price v Easton). Only parties to a contract can enforce the contract against the other (Tweddlev

Atkinson).

Consideration must be sufficient though not necessarily adequate: Consideration must be valuable,
This should be an adequate and sufficient economic value.

Adequacy of consideration: The courts seek to establish that the consideration has some economic
value. The courts will not inquire as to the adequacy of the consideration given by the parties.

Sufficiency of consideration: A formed agreement (contract) that has an adequate economic value
may not have sufficient legal consideration to support a contract.

Insufficient consideration:

 Performance of existing obligations: Where a public duty is imposed by law. Where the
plaintiff is bound by the provisions of an existing contractual obligation owed to the
defendant.
 Existing contractual duties owed to third parties.

Part-payment of debt is insufficient consideration.

The common law rule:

All debts are payable in full.

A creditor does not have to accept satisfaction of part of a debt in satisfaction of the whole debt
(Pinnel’scase).

A creditor alone may choose to accept a lesser sum in part payment of the debt.

If the debtor places the creditor under economic duress to accept a lesser sum then the courts will
award the full amount (D & C Builders Ltd v Rees).

The plaintiff may recover the interest on a debt whilst making an undertaking not so sue for the
moneys owed (Foakes v Beer).

Paying additional consideration to one party to prevent a greater disadvantage hap-pening to the
other party for completing the same work is acceptable (Williamsv

Roffey Bros).

The exceptions to the rule in Pinnel’scase:

The doctrine of promissory estoppel: Established by Denning J in Central London Property Trust Ltd v
High Trees House Ltd.

Promissory estoppel can be subdivided as follows:

 1. 1 the nature of the promise;
2. 2 the doctrine is ‘a shield not a sword’;
3. 3 whether the doctrine is suspensory or extinctive;
4. 4 whether the promisee must act to his prejudice.
 Cheques.
 Compositions with creditors

INTENTION TO CREATE LEGAL RELATIONS

An intention to form legal relations is a fundamental component of any contract.

A contract is not enforceable if the parties lack an intention to form legal relations.

Social and domestic arrangements

Most social and domestic arrangements are not intended to amount to a binding contract.

Family arrangements

Family arrangements for the payment of maintenance between husband and wife cannot form a
contract (Balfour v Balfour).

The burden is on the plaintiff to rebut the presumption that there was no intention to create a
contract (Merritt v Merritt).

The burden has to be rebutted when examining intention of the parties where they are between
parents and children (Jones v Padavatton).

Other social arrangements

Jointly taking part in a competition and sharing the prize amounts to amount to a binding contract
(Simpkins v Pays).

Commercial agreements

In commercial transactions there is a presumption that there is an intention to create a legally

binding relationship (Edwards v Skyways Ltd).

This presumption can be rebutted by express words to the contrary (Appleson v HLittlewood Ltd).

Gentlemen’s agreements: Honourable Pledge Clauses will not give rise to an intention to create a
contract (Rose and Frank Co. v J R Crompton and Bros).

Letters of comfort: Letters of this type aim to pacify and reassure a nervous third party entering into
a contract with a subsidiary of a parent company without the parent company attracting liability for
any breach (Kleinwort Benson Ltd v Malaysia Mining Corporation Bhd).

Advertisements: The law protects advertisers who exaggerate their product by assuming that there
is no intention to create a legal relationship. This presumption can be rebutted depending on how
exaggerated the claims are (CarlillvCarbolic Smoke Ball Co.).

CAPACITY.
The capacity of natural persons

1. Drunks

A contract is voidable if:

Drunkenness prevents an individual from understanding the transaction he has entered into, and the
other party is aware of his level of intoxication.

Drunks are liable to pay a reasonable price for items considered necessaries.

When drunks are sober they can ratify a contract and be sued upon it if a breach occurs.

2. Mentally disordered persons

Those certified insane and those not certified as insane. What applies to drunkards also applies to
insane persons.

3. Minors

Any person under 18 is a minor.

Minors’ contracts are binding or voidable, depending on the circumstances.

Contracts regarded as binding on minors

Contracts for necessaries: - Definition of necessaries: Goods ‘suitable to the condition in life of the
minor and to his actual requirements at the time of the sale and delivery’.

A plaintiff wanting to enforce a contract has to establish:

 That the goods are capable of being necessaries;

 That the minor has not already been adequately supplied with such items at the time of
their delivery;
 That the goods have been sold and delivered.

Beneficial contracts of service:

Examples of a beneficial contract of service: apprenticeship, education, employment. Such contracts

are binding on minors if they are substantially for their benefit.

Voidable contracts

Are enforceable on the minor unless he chooses to repudiate.

Repudiation should be whilst the child is a minority or within a reasonable time of his acquiring
majority.

The tortious liability of minors

A child may be liable for committing a tortious act at the same time as a breach of contract (Burnard
v Haggis).

Restitution

Equity introduced this doctrine to mitigate the harshness of the common law decisions that an adult
could not recover the proceeds from a child if that child had committed a fraud upon him for his
own benefit.
The capacity of corporations

The two types of corporation

1. Chartered corporations
2. Statutory corporations

The doctrine of ultra vires

Prevents a company from acting beyond its powers (authority).

A company must act within the limits of its constitution, i.e. the object clause con-tained in the
memorandum of association.

TERMS OF A CONTRACT
Express terms

Can be agreed upon either orally or in writing, or both.

Court to decide issues of interpretation of the terms within the contractual document. It will look at
Incorporation of statements as terms of the contract

Distinctions should be made between terms and representations.

 Timing
 Reduction of the contract into writing
 The importance of the statement
 Special knowledge or skill

The parol evidence rule

Generally, evidence will not be admitted which seeks to add, vary or contradict the terms of a
written contract.

Exceptions to parol evidence

 Custom
 Non-operation
 Invalidity
 Rectification
 Incompleteness
 Collateral contracts

Implied terms

These are terms not written down but Can be implied by the courts or implied by statute.

Terms implied as a matter of fact

In order for a term to be implied it must be obvious and necessary to give business efficacy to the
agreement (Liverpool City Council v Irwin).

The ‘officious bystander test’ (The Moorcock).

Two exceptions to the officious bystander test:

Where one of the parties is unaware of the term that it is sought to imply into the contract (Spring v
National Amalgamated Stevedores and Dockers Society).

Where there is uncertainty as to whether both the parties would have agreed to the term which has
been omitted from the contract (Shell (UK) LtdvLostock Garages Ltd).

Terms implied by statute

 Terms implied under the Sale of Goods Act 1979.

 The contracts act

Terms may be implied into a contract by way of custom or trade usage (Hutton v

Warren).

The classification of contractual terms

Warranties and conditions

A condition is regarded as a major term – one which goes to the very root of the contract.

A warranty is regarded as a minor term – one which imposes a term that is merely ancillary to the
main thrust of the contract.

MISREPRESENTATION.
A misrepresentation may be defined as a false statement of fact that induces another to enter into a
contract.

The nature of the inducement

The untrue statement must be one of fact that induced the other party to enter the contract
(Attwood v Small).

Statements of opinion

Honest statements of opinion will not amount to a misrepresentation (Bisset v Wilkinson).

Statements of intention

A mere representation as to future conduct is not actionable either as a breach of contract or as a

misrepresentation.

Silence as a misrepresentation of fact

Silence cannot amount to a misrepresentation.

The three exceptions:

 Change of circumstances.
 The statement made is only half the truth.
 Confidential/fiduciary relationships.

The fact of the inducement

  To prove the inducement we must take certain factors into consideration.
 The misrepresentation must be material
 The misrepresentation must have been relied on
 Truth known to the representee?
 The representor has to prove that the representee knew of the untrue statement, e.g.
Redgrave v Hurd.
 Representee unaware of the misrepresentation?
 If the representee is unaware of the misrepresentation he cannot take action on the basis of
it (Ex Parte Briggs).

The nature of the misrepresentation

Fraudulent misrepresentation: A ‘false statement made knowingly or without belief in its truth or

recklessly careless whether it be true or false’ (Derry v Peek).

Common law negligent misrepresentation

 A representor had a duty of care to do all that is reasonable to make sure that his Statement
is accurate.
 Imposed a duty arising from a ‘special relationship’.
 No need to prove a ‘special relationship’.
 The misrepresentation must result in a contract being entered into.
 The burden of proof is reversed so that the representor is liable unless ‘he had reasonable
grounds to believe and did believe up to the time the contract was made that the facts
represented were true’.

Innocent [Link] wholly innocent misrepresentations. Where a party makes a

statement not knowing that it is wrong.

The remedies available for misrepresentation

[Link]
 Effect of misrepresentation renders the contract voidable, notvoid.
 A representee may affirm the contract by expressing his intention to do so or by conduct.
 The representee may rescind the contract by making clear to the representor that he no
longer considers himself bound.
 Failure to rescind a contract will mean that it is affirmed.
 Rescission is available for any type of misrepresentation.

Bars to the remedy of rescission

A person may be barred from exercising the remedy of rescission in four circumstances

 Affirmation.
 Lapse of time.
 Where restitutio in integrumhas become impossible.
 The intervention of third parties.

Damages in lieu of rescission

The right of rescission may be lost where the court decides to exercise its discretion and award
damages in lieu of rescission.
NB: the discretion to award damages in lieu of rescission cannot be exercised in relation to
fraudulent misrepresentation.

2. Indemnity

This remedy allows the representee to recover expenses incurred by the creation of the contract as
a result of the misrepresentation.

An indemnity is not the same as damages (Whittington v Seale-Hayne).

3. Damages for misrepresentation

Fraudulent misrepresentation: Damages are available at common law for fraudulent

misrepresentation, the measure being a tortious one since the claim is based on the tort of deceit.

Negligent misrepresentation at common law: Damages based on remoteness (Hedley ByrnevHeller).

Innocent misrepresentation: Damages are not recoverable unless the court decides to exercise its
discretion

MISTAKE
Mistake at common law

A contract is void ab initioif the mistake was fundamental to the contract.

Common initial mistake: Where the parties enter a contract wrongly believing that the subject
exists. If the subject has never existed or ceased to exist prior to the entering the contract then no
contract can arise and therefore any agreement entered into is void ab initio.

Mistake as to the existence of the subject matter (res extincta): Occurs where, unknown to both
the parties, the subject matter of the contract had ceased to exist at the time the contract was
entered into. See Couturier v Hastie– fermenting corn.

Mistake as to title (res sua):- . . Unknown to the parties, the buyer is already the owner of that
which the seller purports to sell to him (Bell v Lever Bros).

Mistake as to the quality of the subject matter of the contract: This means mistake as to the
bargaining. For mistake as to the quality to arise, the mistake must be as to a fundamental
assumption on which the contract was based and must be a mistake of both parties

Consensus mistake: Happens where there is a mistake as to the terms of the contract. Stops an
agreement from arising as there is a lack of consensus ad idem. The two basic categories are mutual
and unilateral mistakes.

Mutual mistake: - Occurs where the parties are at cross purposes, e.g. two ships with the same
name (Raffles v Wichelhaus).

To establish a mutual mistake there must be such a degree of ambiguity that it is impossible, on
applying the objective test of a reasonable man that the parties intended to be bound by one set of
terms or the other.

Unilateral mistake:- Here One party is actually aware of the other party’s mistake.
There must be a fundamental mistake as to the nature of the promise made by the other party – a
mistake as to quality will not suffice.

The mistake must induce the other party to enter into the contract.

The person seeking to avoid the contract has to rebut the presumption.

Two types of unilateral mistake:

1. Mistake as to the terms of the contract:

Where the offeror is aware that the accepter is fundamentally mistaken as to the nature of the
promise contained in the offer,

2. Mistake as to the identity of the person contracted with:

A contract may become a nullity where a party is mistaken as to the identity of the person
contracted with and the other party is aware of that mistake.

In order to prove unilateral mistake as to identity, the person alleging mistake must prove each of
the following:

 An intention to deal with some other person;

 That the other party knew of this intention;
 That the identity was of fundamental importance;
 That reasonable steps had been taken to verify the identity.

3. Mistake as to the nature of the document signed:

non est factum, ‘it is not my deed’. Limited defence for a person who was bound,having signed a
document.

Mistake in equity

Mistake in equity renders a contract voidable (Solle v Butcher). However This decision is thought to
be wrong in law (Great Peace Shipping Ltd v Tsavliris

DURESS AND UNDUE INFLUENCE.

The common law concept of duress

Duress relates to contracts induced by violence or the threat of violence.

 The act or threatened act must be illegal:

 it may amount to either a tort or a crime;
 the threat must be directed at a person.

NB: Lawful threats cannot be duress. (Lawful imprisonment as in WilliamsvBayley)

Duress renders the contract voidable.

Threat to goods cannot amount to duress. (MaskellvHorner)

Economic duress. D & C Builders LtdvRees; Atlas Express LtdvKafco (Importers and Distributors.
The equitable concept of undue influence

The transaction entered must be of manifest disadvantage to the victim – Bank of

Credit and Commerce International SAvAboody[1990].

Actual undue influence

Occurs where there is no special relationship between the parties so that there is no abuse of a
particular confidence.

The claimant must prove that the transaction was manifestly disadvantageous.

The exercise of undue influence is one of fact.

Presumed undue influence

Examples where there will be automatic presumed undue influence:

 trustee and beneficiary – Benning field v Baxter;

 solicitor and client – Wright v Carter;
 parent and child – Powell v Powell;
 religious leader/adviser and disciple/parishioner (Allcard v Skinner).

The claimant must show:

 A relationship of trust or confidence exists between himself and the wrongdoer, and
 The existence of a transaction which calls for an explanation.

NB: The victim need not prove that the undue influence has actually taken place; all he has to prove
is that a confidential relationship has arisen and that the transaction itself calls for an explanation.

The effects of undue influence

The effect of undue influence on a contract is to render it voidable rather than void.

The victim must take steps to avoid the contract by rescinding it.

Rescission may be lost where restitutio in integrumis impossible, or where the contract has been
affirmed or where a bona fide third party has acquired the title to any property sold to him.

Restitution does not have to be precise but merely substantial (O’Sullivan v Management and Music
Ltd[1985]).

ILLEGALITY
The unlawful manner of performance

Illegality may have two principal effects:

A contract may be regarded as illegal if the actual creation of the contract itself is prohibited. Result
– void ab initio(CopevRowlands).

A contract may be created lawfully but nevertheless be illegal because of the way in which it is
performed (Anderson LtdvDaniel).
Illegal by statute

Where a contract is expressly declared to be prohibited in a statute then there is little doubt that
Parliament intended that the contract could not be enforced (Re Mahmoud and Ispahani).

Illegal at common law

Where the courts will not uphold a contract if its effect was contrary to the common good or it was
injurious to society generally.

 Contracts for the commission of an act that is wrong at common law

 Contracts contrary to public policy
 Contracts prejudicial to the administration of justice
 Contracts calculated to oust the jurisdiction of the courts
 Contracts tending to corrupt the public service
 Contracts prejudicial to the status of marriage and the family
 Sexually immoral contracts
 Contracts in restraint of trade

Such contracts are prima facie void as being contrary to public policy on two grounds:

 The common law seeks to protect an individual from negotiating away his livelihood.
 It is not in the public interest for the state to be deprived of a valuable benefit in allowing a
person to be restricted in carrying out his lawful trade or business.

The doctrine of restraint of trade can be reduced to a number of principles.

All contracts in restraint of trade are prima facie void.

The courts decide whether any special factors exist which may or may not justify the restraint. If the
special circumstances do point to the restraint being valid, then it must be reasonable not only as
regards the parties to the contracting, but also as regards the interests of the public.

The burden of proving that the restraint is reasonable lies on the party alleging it to be so.

The court must therefore decide whether the contract is in restraint of trade before considering the
reasonableness or not of the restraint.

The courts will also consider the following factors in deciding whether or not the covenant is
reasonable or not:

 The duration of the restraint;

 The area of the restraint.

The categories of restraint are never closed.

 Contracts of employment.
 Contracts for the sale of a business.
 Exclusive trading.

The effects of illegality

The general effect

An illegal contract cannot be enforced. Basing on the rule the rule: . . . no person who is aware of an
illegality within a contract can enforce it (Holman v Johnson).

Money or property transferred under an illegal contract is irrecoverable. The defence of illegality is
available to both parties regardless of their situations. A claimant cannot succeed if he is to benefit
from the illegality (Saunders v Edwards).

Innocent party can withdraw before the transaction is performed if the contract is illegal. Likewise if
part performed (CowanvMilbourn).

Illegality may be avoided by using a collateral contract (Strongman (1945) Ltd v Sincock).

Recovery of money or property

Illegality renders any money or property irrecoverable just as a person is not allowed to benefit
(Beresford v Royal Insurance Co. Ltd).

There are three situations where the parties will be relieved of the illegal nature of the contract:

 Where the parties are not in pari delicto.

 Where the illegal contract has been withdrawn from.
 Where the illegal contract is not relied on for recovery.

Severance

Severance removes the illegal elements of the contract, leaving behind a valid and enforceable
agreement.

Severance can only be used where it is consistent with public policy that renders the contract illegal
in the first place (Napier v National Business Agency Ltd).

The requirements necessary for the exercise of severance

The ‘blue pencil’ rule.

 The illegality must not comprise the main part of the contract.
 The agreement must not be altered by the act of severance (Attwood v Lamo)

DISCHARGE OF A CONTRACT
Performance

A contract must be performed strictly in accordance with its terms otherwise the innocent party can
claim damages or repudiate the contract (Re Moore & Co. v Landauer & Co).

‘Entire’ contracts – a person’s contractual obligations are conditional on the other party performing
his side of the contract completely and entirely (Cutter v Powell).

Mitigating the strict performance rule

The doctrine of substantial performance: - Occurs where a person makes minor defects when fully
performing his side of the contract/bargain.
Damages: – a person who substantially performs his side of the contract can claim the contract
price, less an amount by which the value of the contract has been diminished by his breach (Hoenig
v Isaacs).

Partial performance: - Occurs where one side partially performs his side of the contract and the
other decides to accept the work done rather than reject it. The promisee will be obliged to pay for
the work done on a quantum meruitbasis. The promisee has complete discretion as to whether to
accept the partial performance or not.

Tender of performance: - To offer a tender to perform is regarded as equivalent to actual

performance.

The promisee cannot avoid a contract for non-performance where he himself has refused to accept
the offer of performance (Startup v Macdonald).

The promisor can sue for damages on a quantum meruit basis if he has started work but the
promisee prevents him completing it (Planché v Colburn).

Divisible contracts: - Defined as a contract in which partial performance attracts an obligation to

provide payment of part of the consideration.

The time of performance

Time must be made of the essence if a party wishes to terminate the contract, other-wise only
damages may be sought (RainerivMiles).

Equity considers time of the essence where:

 The parties expressly stipulate that conditions as to time must be strictly complied with: or
 The nature of the subject of the contract or the surrounding circumstances show that time
should be considered to be of the essence: or
 A party who has been subjected to unreasonable delay gives notice to the party in default
making time of the essence.

Time not made of essence can become of essence on the giving of reasonable notice (Charles
Rickards Ltd v Oppenheim).

Before a party gives reasonable notice there must be an unreasonable delay (British and
Commonwealth Holdings plc v Quadrex Holdings Inc.).

Reasonable notice can be given making time of the essence as soon as the contractual date for
performance has passed (Behzadi v Shaftesbury Hotels Ltd).

Where time is of the essence in a contract then any delay will amount to repudiation of the contract
(Union Eagle Ltd v Golden Achievement Ltd).

Breach

Occurs where a person fails to perform his side of the contract. A breach gives rise to a claim for
damages, regardless of its severity.

Breach of primary obligation

The innocent party may treat the contract as discharged where there has been a breach of a primary
obligation of the contract.
Anticipatory breach: occurs when a party either expressly or impliedly, by words or conduct,
indicates that he does not intend to honour his obligations under the contract.

Burden of proof for anticipatory breach is beyond reasonable doubt

The effects of breach

The right to affirm the contract. An innocent party can elect to continue with the contract or to
terminate it upon a breach.

The right to treat the contract as discharged. The innocent party has the right to elect to accept the
repudiation as discharging the contract with the result that all his future obligations under the
contract come to an end.

Agreement

This chapter deals with the discharge of contracts by agreement. The general rule here is that since
contracts are created by agreement they may be extinguished by agreement.

Bilateral discharge

Accord and satisfaction:- Where both parties have yet to carry out their obligations under the
contract, either wholly or partially, then their respective promises to discharge the contract must be
supported by consideration.

The ‘satisfaction’ supplied by the parties must:

 Not be something less than what was required under the original contract (Pinnel’s case)
 Must amount to sufficient consideration.

The forms of discharge

Rescission and variation:- No formalities required to discharge the contract.

NB: Formalities are required where a contract is to be discharged and a new one put in place (Morris
v Baron & Co.).

Waivers:- Occur where one party requests an alteration of the terms of the contract and the other
party agrees not to insist on strict compliance with the terms of the contract.

Express provision for discharge

The parties may agree either expressly or impliedly in their contract that it will become discharged
should certain circumstances arise.

Unilateral discharge:- Occurs where one party has performed his obligations under the contract, the
other party having yet to do so.

Frustration

Frustration is really an expression indicating that the contract, once entered into, has subsequently
become impossible to perform.

The doctrine operated at two levels:

 The courts would only allow frustration to be used as a defence;

  The courts recognised that contracts themselves could provide for the con-sequences of the
occurrence of such an event (force majeure clauses).

Applications of the doctrine of frustration

 Destruction and unavailability of the subject matter of the contract

 Inability to comply with specified manner of performance
 Supervening illegality

Factors affecting the operation of the doctrine

Self-induced frustration: - Frustration does not apply to an event arising out of the actions of one
party to the contract. Negligent actions of a party will not give rise to frustration.

Frustration expressly provided for in the contract

The parties may make provision for what is to happen should a particular supervening contingency
occur (force majeureclauses).

The clause must be capable of dealing with any form that the contingency may take, no matter how
serious, otherwise it will not prevent the operation of the doctrine of frustration (JacksonvUnion
Marine Insurance Co. Ltd).

The legal effects of frustration

Frustration will terminate a contract automatically.

The effect of frustration at common law

From the date of the supervening event the parties are released from all future contractual
obligations.

REMEDIES FOR BREACH OF CONTRACT

Damages may be:

 Liquidated: where the parties have agreed the damage as a genuine pre-estimate of loss.
 Unliquidated: where no amount has been fixed and the court decides.

Assessment of the basis on which damages are awarded

General principles

An injured party to be in the same position he would have been in had the contract been carried out,
insofar as money is able to do this (RobinsonvHarman).

The injured party can claim damages for loss of bargain/profits and expenses.

Damages are not intended to be punitive but compensatory.

Difference in value and cost of cure

In assessing the damages one of two methods may be adopted:

 A ‘difference in value’ basis, or

  A ‘cost of cure’ basis.
 Mitigation of loss:

A plaintiff should mitigate his loss by taking reasonable steps to reduce

The question of time in assessing an award of damages

The general principle for the assessment of damages is compensatory.

Damages are usually assessed as at the time the contract has been broken. The principle may be
relaxed to prevent injustice (Kennedy v Van Emden).

Limitations on the availability of damages

Causation: - To claim damages a causal link between the losses sustained and the breach of contract
must be shown (Young v Purdy;).

Remoteness of damages

The defendant will be liable only for losses that arise from the consequences of the breach and
which can be said to be within the contemplation of the parties at the time of contracting.

Mitigation of loss

Plaintiffs will not be able to claim for losses which he could have avoided by the taking of reasonable
steps. Reasonable steps to mitigate losses is a question of fact.

Liquidated damages and penalties

Courts support claims where the parties make a genuine attempt to pre-estimate the loss if there is
a breach. The courts will not award sums which are considered to be penalties.

Inaccurately assessed damages do not bar the recovery of compensation, subject to remoteness
(Chaplin v Hicks).

Damages are not confined to financial loss – physical inconvenience had to arise from the breach
and not simply mental distress (Addis v Gramophone Co. Ltd).

Holidays – damages for disappointment, mental anxiety and distress could be compensated (Jarvis v
Swans Tours Ltd; Jackson v Horizon Holidays Ltd).

EQUITABLE REMEDIES

Specific performance

Specific performance is an order of the court which compels a defendant to carry out his obligations
under a contract.

The defendant is liable to criminal proceedings for contempt of court if he fails to comply.

Factors to be considered in making an order for specific performance

 Damages must not be an adequate remedy: if damages are an adequate remedy then an
order of specific performance will not be awarded.
 The requirement of mutuality: specific performance is generally not awarded unless the
order is available to both parties (Flight v Bolland).
  Specific performance is used to enforce positive obligations. Negative obligations are
restrained with a prohibitory injunction.
 Specific performance is not used if it causes hardship to a party or third party (Patel v Ali).
 The courts will not order specific performance in personal service contracts.

Injunctions

Injunctions can be either prohibitory or mandatory.

Prohibitory injunctions restrain a breach of a negative undertaking (Nordenfelt v Maxim Nordenfelt

Guns and Ammunition Co. Ltd).

Mandatory injunction – order to the defendant to do some positive act.

Limitations on the use of prohibitory injunctions

The rule that damages must be shown to be inadequate before equitable relief will be granted does
not apply to prohibitory injunctions.

Quasi contract

The doctrine of quasi-contract lies within a broader area of law known as the law of restitution.

An action will lie in quasi-contract to recover moneys paid either under a contract or purported
contract where there has either been a total failure of consideration or where the moneys have
been paid under a void contract.

Actions for payments made under a mistake of law

Until recently, the general rule of English law was that money paid under a mistake of law, or as to
the legal effect of the circumstances on which money was paid, but on a full understanding or
knowledge of the facts, was irrecoverable

The rule that money paid under a mistake of law was irrecoverable was abolished (Kleinwort Benson
v Lincoln City Council).

What then are the principles governing the recovery of money under a mistake of law?

 Was there a mistake?

 Did the mistake cause the payment to be made?
 Did the payee have a right to the money paid to him?

Claims in quantum meruit

Defined as a claim arising ‘where goods are supplied or services rendered by one person to another
in circumstances which entitle him to be recompensed by that other by receiving a reasonable price
or remuneration.

PRIVITY OF CONTRACT
The general rule
Only the parties to the contract may enforce the contract against each other (Dunlop Pneumatic
Tyre Co. Ltd v Selfridge & Co. Ltd).

A third party cannot enforce a contract even if it was made for his benefit (Tweddle v Atkinson).

Exceptions to the doctrine of privity of contract

Exceptions allowing a third party to claim under a contract

 Statutory exceptions
 Agency: The principle in agency is that ‘he who does an act through another does it himself’.
 Trusts: A trustee can sue a third party on behalf of the beneficiary. A beneficiary can sue a
third party where the trustee fails to do so.
 7. CONTRACT QUESTIONS
1. What is a contract?

A legally binding agreement between two or more people

2. How is a contract formed?

It is formed by an offer by one person and acceptance by the other

3. If x is talking to y and offers to sell him something; but the conversation is overheard by z, can
z accept the offer and why?

Z will not be deemed to accept the offer because the offer is to a specific person and it automatically
excludes other would be acceptors
4. What was the major principle in CARILL V CARBOLIC SMOKE BALL CO?

An offer could be made to more than one person. (the general public)
5. If the Uganda Police gave a reward for the apprehension of a thief, and x catches the thief
without knowing about the reward, will the police be obligated to hand over the reward and
why?

No, because x does not know about the offer

6. What is a conditional offer?

This is an offer where person promises to do something upon fulfillment or happening of some
event.
7. Write small notes about the Contra Preferentum rule

Court will interpreted an exclusion clause against the maker, especially where there is ambiguity in
the clause
8. X wrote a letter to y offering him a sum of money for his horse saying “if I here no more form
you, I consider the horse mine”. Y did not reply and x decided to keep the horse. Can y enforce
his rights? Give a reason.

He cannot. Because silence does not amount to acceptance except where it is expressly provided for
under the contract as a form of acceptance. In this case it was provided for.
9. Differentiate between common and unilateral mistake.

Common mistake is where both the parties are mistaken about the subject matter while unilateral
mistake is where only one party is mistaken about the subject matter and the other party knows of
the mistake but takes advantage of it.

10. What is needed for a contract to be regarded as valid?

For a contract to be valid, the following should exist; an offer, acceptance of the offer,
Consideration, the parties must have capacity to contract, they should have intention to create legal
relations
11. What is a counter offer?

It is acceptance of an offer on totally different terms given by the offeror that it will look like it is a
new offer.
12. Write short notes on promissory estoppels.

Where a person causes another to believe that he has changed his position and upon that belief the
party changes his position; the maker of the statement is stopped form denying that statement
13. Many times makers of contracts have tended to exclude themselves from liability. How have
the courts tried to protect the interests of the weaker parties to such contracts?

In case of ambiguity, the court interprets the clause against the maker of the statement.
A defendant shall also not exclude him/herself from liability if they fail to perform a fundamental
term of the contract (where there is fundamental breach of the contract)
14. Differentiate between a condition and a warranty.

A condition is a fundamental term of the contract the breach of which nulifys the contract while a
warranty is a term incidental to the formation of the contract the breach of which only entitles the
aggrieved party to damages but does not invalidate the contract.
15. The doctrine of consideration is an essential part of the contract yet there are contracts that
can still go on without consideration. Name the exceptional circumstances.
 Promissory estoppel
 Assignment
16. Name two situations where intention to be legally bound may be negatived.
 Where there are agreements that are subject to contract to that effect.
 Where the parties clearly state in their contract that they are not be legally bound
17. What is meant by the term revocation of an offer?

Revocation is when a party before there is any acceptance decides to withdraw his/her offer
18. Distinguish between void and voidable contracts

Void contracts are those that are unenforceable from the start while voidable contracts are still
enforceable after the formation of the contract but their existence depends on the option of the
injured party
19. Name any two exceptions to the parole evidence rule

 Additional evidence will be admitted to show that contract is valid.

 The evidence will normally be admitted to show that there is an irregularity

 Evidence may be adduced to show the additional terms attached to the contract

 It may also be adduced to show that the contract is subject to custom or usage

20. Name any three types of mistake which nullify a contract

Common mistake, unilateral mistake, mutual mistake
21. Can a person who has signed a document be bound by it?
The general rule is that such people are bound by such contracts except where the person can not
read the wrong information is read to that party, or he is forces or he signs it by mistake, such a
person can plead no est factum (not my document)
22. Differentiate between substantial and partial performance

Substantial performance is when a person has performed almost the whole contract while partial
performance means performance of only small part of the contract
23. Mention any two relationships where agency may exist
 beneficiary and trustees
 bailor and bailee
24. What is the general rule with regard to the law of agency?

The general rule is that an agent is neither liable nor entitled to enforce a contract he makes on
behalf of his principle
25. Mention any two exceptions to the above rule
 Agents are liable for contracts they enter into personally
 An agent is liable if he purports to act for another principle that is in fact himself
26. Name any three duties of an agent to his principle
 Obedience in carrying out the principal’s instructions
 Duty of care and skill not negligently cause damage to his/her principal’s business
 The duty to perform his/her obligations personally and delegate his/her duty
 Accounting to the principal
27. On the other hand; what are the duties of the principal
 Payment of remuneration
 Payment of a commission if any which totally depends on the construction of the
contact
 Duty to indemnify the agent in case the agent incurs costs while working for the
principal
28. What are the different ways in which a contract can be discharged?
 By agreement
 By performance
 By breach
 frustration
29. When can a party to a contract claim quantum meruit?
 Where the contract is divided and part of the divided contract is concluded
 Where the other party accepts partial performance
 In cases of substantial performance
 Where there is non- completion of the contract due to the fault of the defendant
30. Give any five examples of illegal contracts
 Contracts tending to impede the administration of justice, for example, contracts of
maintenance
 Contracts tending to injure the public service, for example the sale of public offices
 Contracts that tend oust the jurisdiction of court
 Contracts of trading with an enemy country
 Contracts to commit offences or civil wrongs
31. What are the legal effects of illegality on a contract?

It renders the contract void

32. What remedies are available to a part who claim that a contract has been breached
 Damages
  Specific performance
 Injunction
 Claim for the amount of money agreed
33. What do you understand by the term ‘Non est Factum’?

It means, not my deed, not my document

34. What do you understand by the term anticipatory breach?

It refers to a situation where a party to the contract declares his/her intention not to perform the
contract before the performance is due/
Where a party foresee the possibility of not completing the contract on the agreed date.
35. Name any three examples of equitable remedies
 Quantum meruit
 Specific performance
 Injunction
36. What is the major essence of the doctrine of frustration?

Parties to a contract are excused from performance of their obligations if some unexpected event
occurs without the fault of either party
37. Under what circumstances can frustration to a contract be denied?
 Where the parties have expressly provided for the contingency which has accrued
 Where the event was easily foreseeable
 Where performance has simply become onerous or hard
38. List three situations that amount to frustration
 Destruction of the subject matter
 Death
 Government intervention, for example, seizure of property by the government
 war
39. What is an injunction?

This is an order from court restraining a person from continuing to do an infringing act
40. Under what circumstances may court refuse to grant an injunction?
 When the plaintiff is also partly responsible for the breach by the defendant
 Where the award would cause undue hardship to the defendant
 Where the plaintiff delays to seek the remedy
41. What is waiver?

It is where the parties agree to forfeit their duties and obligations under the contract. It can either
be implied or express
42. What do you understand by accord and satisfaction?

This is the situation where a contract is supported by fresh consideration

43. What do you understand by the term novation?

Novation is a contract between a debtor, creditor and a third party, that the debt owed by the shall
from that point be owed to a third party
44. What is discharge of a contract?

It refers to a situation where a contract ceases to exist between two or more parties
45. When does discharge by agreement happen?

Discharge by agreement occurs where the parties agree to end the contract
46. Give three types of common law doctrines which amount to assignment
 Novation
 Acknowledgment
 Power of attorney
47. What is a legal chose in action?

This is an action that could only be remedied in common law courts

48. List any three requirements for a valid assignment
 There should be an intention to assign
 There should be a communication to the assignee
 There should also be a notice to the debtor
49. List three way in which assignment by operation of the law comes about
 By death-here the rights are transferred to the administrator or executor
 By bankruptcy-here the rights are transferred to the liquidator or receiver
50. What rights in a contract cannot be assigned?
 Contracts that state expressly that they shall not be assigned
 Personal contracts that need to be performed by the exact party
 Mere rights of action cannot be assigned
 Mere expectancies, that is to say, rights that do not belong to the party purporting to
assign are not assignable
51. Define the term agency

It is a relationship which exists whenever one person acts on behalf of another and has power to
effect the principal’s legal position with regard to a third party
54. What is quantum meruit
This is a Latin term meaning as much as merited
It is basically a legal doctrine that creates a presumption that a person who performs a service for
another deserves to be paid for the amount of work he has done.
56. list down five ways in which consent be invalidated in a contract?
 Duress
 Undue influence
 Unconscionable bargain
 Mistake
 Misrepresentation

57. When does duress occur?

Duress occurs where consent is forced from a party to a contract by improper pressure.
58. What are the elements of economic duress?
 The pressure applied should be so overwhelming to the party subject to it that their
consent was not genuine
 The pressure applied was improper in the nature of the pressure itself or in relation to
the demand for which consent was sought.

59. What was the basis for the formation of the doctrine of undue influence under common law?
This was developed by the courts of equity which could not allow someone to take unfair advantage
of another who was in some form of dependant relationship where the dependant party would likely
trust the other party’s judgement rather than their own.e.g in a lawyer client or parent child
relationship.
60. Give three examples of acceptable duress/pressure in law
 Where offer can not be repeated
 Where a creditor threatens to take legal proceedings for an overdue debt
 Where a bank threatens to cancel a credit facility or exercise its powers under mortgage
 Where goods are about to be all sold
 Where prices are about to increase

61. List down examples of duress

 Threats of physical violence
 Threats of prosecution
 Threat of detention

62. what elements need to be proved to establish undue influence

 that the contract was entered into by A as a result of the undue influence of B
 That B used that influence improperly to gain an unfair advantage at the
expense of A.
 That one party was in position to influence the others decisions

63. What happens in an instance where undue influence is exercised by a third party?

The contract will be voidable at the option of the party who was unduly influenced
64. When doe an unconscionable bargain occur?

 that the bargain contains a significant element of inequality;

 that the party seeking relief was, by reason of age, education, experience or
circumstances, at a serious disadvantage in comparison with the other party;
 That the other party took improper advantage of the situation of the party seeking
relief, and that this improper advantage amounted to ‘equitable fraud’.

65. What is the parole evidence rule?

This is when a written contract purports to embody the entire agreement between the parties, no
oral testimony will be permitted that seeks to modify or change the interpretation of the written
contract provision.
66. What does the notation ‘time is of the essence’ mean in contract law?

When a contract contains a “time is of the essence” provision it means that the date set for the
action contemplated in the contract is fixed

67. What are trade/business secrets?

 Employers wish to safeguard their secrets from their competitors.

 Trade/business secret clauses are conditions that forbid employees from revealing
business secrets
 68. What are the consequences of breach of a contract?

 When one party to a contract breaches it, that breach relieves the other party of the
duty to perform.
 for the nonbreaching party he or she has to file suit against the other party and show
how that party failed to perform as promised

69. What is specific performance?

Specific performance is a court order that requires a party to do that which he has already
agreed to do in the contract
70. What is recession of a contract?

Rescission is an action that cancels or voids the contract and places the parties back in the
positions they were in prior to the creation of the contract.
71. What does this latin term mean Quantum valebant?

This term means, “as much as it is worth.”

It arises in situations where goods are sold and the parties have not specified the sale price of the
goods
72. In contract law how does court assess monetary damages?

The court creates an award for the non-breaching party that is the financial equivalent of what
the party would have received if the contract had been fulfilled as promised
73. what are the general rules used by court to assess damages ?
 Damages Must Be Foreseeable
 Damages Follow a Breach
 Damages Are Specific
 Mitigation
 Damages Should Not Exceed the Total of the Contract

74. Does a contract still apply when one party has filed bankruptcy?

No, Bankruptcy relieves the debtor/party from all obligations made part of the bankruptcy petition.
75. When is a contract terminated for ‘good cause’?

When a contract contains a clause stating that it may only be terminated for good cause it is
usually construed to be terminable at will by the parties
76. What are the elements of recission of a contract?

 In order to demonstrate a valid rescission, there must be a demand or tender of full

performance.
 There must also be an unambiguous, affirmative act by a party showing the intention to
rescind the contract
77. What is consideration?
Consideration is often defined as “some right, interest, profit or benefit accruing to one party”
or the loss, detriment or responsibility assumed by another party to the contract
78. What is the doctrine of privity of contract?
 The doctrine of privity of contract determines who may enforce the contract and provides
that only the parties to a contract may enjoy the benefits of that contract or suffer burdens
under it.

79. What are the two difficulties in establishing an argument that the contracting party in fact
contracted as agent for the third party?
 Establishing that the third party (principal) gave authority to the agent to act in
that capacity.
 Establishing that the principal provided consideration to support the promisor's
[Link] is Dunlop Pneumatic Tyre v Selfridge.

[Link] explain the types of consideration?

 EXECUTORY CONSIDERATION
Consideration is called "executory" where there is an exchange of promises to perform
acts in the future, eg a bilateral contract for the supply of goods whereby A promises to
deliver goods to B at a future date and B promises to pay on delivery. If A does not deliver
them, this is a breach of contract and B can sue. If A delivers the goods his consideration
then becomes executed.

 EXECUTED CONSIDERATION
If one party makes a promise in exchange for an act by the other party, when that act is
completed, it is executed consideration, eg in a unilateral contract where A offers £50
reward for the return of her lost handbag, if B finds the bag and returns it, B's
consideration is executed

[Link] is an estoppel in pais?

An estoppel in pais means that a party is prevented by his or her own conduct from obtaining
the enforcement of a right which would operate to the detriment of another who justifiably
relied on such conduct.

81. What is an estoppel?

A legal principle that bars a party from denying or alleging a certain fact owing to that
party's previous conduct, allegation, or denial.

[Link] is Valuable Consideration?

In the formation of a valid and binding contract something of worth or value that is either a
detriment incurred by the person making the promise or a benefit received by the other
person.

[Link] is required in Contract law for valuable consideration?

In contract law consideration is required as an inducement to enter into a contract that is
enforceable in the courts. It is an essential element for the formation of a contract. What
constitutes sufficient consideration however has been the subject of continuing legal debate.
Contracts and courts generally use the term valuable consideration to signify consideration
sufficient to sustain an enforceable agreement.

84. One of the rules governing consideration is part payment of a debt. Briefly explain
what it entails giving also its exceptions
 If one person owes a sum of money to another and agrees to pay part of this in full
settlement, the rule at common law (the rule in Pinnel's Case 1602) 5 CoRep 117a) is that
part-payment of a debt is not good consideration for a promise to forgo the balance.

85. Briefly explain the rule in Pinnel’s case?

Payment of a lesser some is not consideration for a greater sum. It was held that part-
payment in itself was not consideration. However, it was held that the agreement to accept
part-payment would be binding if the debtor, at the creditor's request, provided some
fresh consideration. Consideration might be provided if the creditor agrees to accept:

[Link] is Estoppel by Convention?

When parties have acted in a transaction upon a common assumption (either of fact or law,
whether due to mistake or misrepresentation) that a given state of facts is to be accepted
between them as true, then as regards that transaction each will be estopped against the
other from questioning the truth of the statement of the facts so assumed where it would be
unjust and unconscionable to retile from that common assumption. There must be some
mutually manifest conduct by the parties, which is based on a common but mistaken
assumption which the parties have agreed on, and such agreement may be inferred from
conduct or even silence.

[Link] is the postal acceptance rule?

As a rule of convenience, if the offer is accepted by post, the contract comes into existence
at the moment that the acceptance was posted (Adams v. Lindsell (1818) 106 ER 250). This
rule only applies when, impliedly or explicitly, the parties have in contemplation post as a
means of acceptance. It excludes contracts involving land, letters incorrectly addressed and
instantaneous modes of communication.

88. what is the rule in smith v hughes?

Court emphasized that the important thing is not a party's real intentions but how a
reasonable person would view the situation. This is due mainly to common sense as each
party would not wish to breach his side of the contract if it would make him or her culpable
to damages, it would especially be contrary to the principle of certainty and clarity in
commercial contract and the topic of mistake and how it affects the contract.
[Link] is the Mirror Image rule in Offer and Acceptance?
The "mirror image rule" states that if you are to accept an offer, you must accept an offer
exactly, without modifications; if you change the offer in any way, this is a counter-offer
that kills the original offer
90 . When does Quantum Meruit apply?
 When a person employs (impliedly or expressly) another to do work for him,
without any agreement as to his compensation, the law implies a promise
from the employer to the workman that he will pay him for his services, as
much as he may deserve or merit.
 When there is an express contract for a stipulated amount and mode of
compensation for services, the plaintiff cannot abandon the contract and
resort to an action for a quantum meruit on an implied assumpsit.
92. What are Liquidated Damages?
These are damages the parties agree on to be given by the default party in case of breach of
the contract.

93. What is Rectification?

 This is a remedy whereby a court orders a change in a written document to reflect what it
ought to have been or said in the first place. It is an equitable remedy, which means the
circumstances where it can be applied are limited.
94. What are the two approaches to the question of the nature of exemption clauses?
Defence - i.e. construe all the contract terms, except the exemption clause, to determine
the breach and then determine if the exemption clause actually operatesas a defence to
that breach. This is the generally accepted view of the nature of exemption clauses;
Construe as any other term of the contract in order to establish the initial contractual
obligations.
95. When, if ever, will an exemption clause be construed to cover negligence liability?
Negligence must firstly be at least ONE form of liability arising on the particular facts.
(Negligence means breach of a qualified contractual obligation and/or breach of a duty of
care in tort).

96. What approach should the court adopt to an exemption clause when a very serious
or deliberate breach of contract has occurred?
Where there has been a very serious or deliberate breach of contract it is a matter of
construction whether the exemption clause covers the breach. There is no rule of
substantive law to prevent reliance on the clause. If the clause is clearly worded, it should
be taken to cover the breach that has occurred, even if it is very serious or deliberate
97. What is a Collateral Contract?
A collateral contract is a contract where the consideration is the entry into another
contract, and co-exists side by side with the main contract.
98. What is Rescission in law of Contract?
In contract law, rescission (to rescind or set aside a contract) refers to the cancellation of
the contract between the parties.
99. What is Specific Performance?
In the law of remedies, an order of specific performance is an order of the court which
requires a party to perform a specific act as agreed on in a contract.

100. Briefly explain the mail-box rule in offer and acceptance?

The mailbox rule provides that the contract is formed when the letter of acceptance is
placed in the mailbox. The mailbox rule only applies to acceptance of an offer; other letters
do not take effect until the letter is delivered

MINI PROBLEM QUESTIONS

1. A shop keeper displayed mobile phones on the shop shelves. Dalausi walked in and bought
two telephones. Between the two, who made the offer and who accepted?
Display of mobile phones on shop shelves does not amount to an offer because the intention
of the shopkeeper is to invite people to buy. Therefore the shop keeper made an invitation
to treat; Dalausi who walked in made an offer and the shop keeper accepted.

2. A grocer over charged a widow by selling to her a kilogram of sugar at sh. 10,000. Advise
whether the widow has a cause of action.

3. X lost his book and announced to his classmates and promised a reward for whoever
recovered it. A security guard found the book and claimed the reward. Explain whether or
not he is entitled to the reward.
 The offer of the reward was only communicated to the classmates and not to the security
guard who could not furnish acceptance in the absence of an offer. He is therefore not
entitled to the reward.

Mubeezi made an offer to sell cotton to Kiranda but misdirected the offer letter. As a
result kiranda got the letter late and posted his acceptance later than the offer letter had
required. Mubeezi had sold the cotton to a third party before acceptance reached him.
Advise Kiranda
Where acceptance is communicated by post the principle is that a contract is concluded as
soon as the letter of acceptance is correctly addressed and put in a post. So the contract
between Mubeezi and Kiranda had been concluded at the point when the correctly
addressed and stamped acceptance letter had been posted.

4. Mwesigye wrote a letter to Anita offering to buy her watch and added that if he did not
hear from her, he would consider it his at the price stated in the letter. Anita did not reply
to the letter but sold the watch to a third party and has been sued for conversion. Advise
ANITA
Where an offeree does not respond to an offer, he is deemed to have rejected that offer.
Anita made no reply therefore no acceptance can be said to have been communicated by
her and thus Mwesigye is not entitled to the watch.

5. Mutuuzo an infant had been studying at Kampala musical school with intention to
specialize as a violin player. He refused to join his instructor in a tour intended to improve
Mutuuzo’s skill. Advise Mutuuzo’s teacher.
An infant is bound by a contract for necessities. Mutuuzo’s teacher must therefore prove
that the tour was necessary at the time of the contract.

6. Kifaalu purchased a computer and was issued with a receipt after paying the price. Give
your opinion on whether a receipt is a contractual document.
A receipt must have been intended a contractual document and therefore an integral part of
the contract, a party cannot be bound by a clause contained in a document which a
reasonable person would assume to be no more than a receipt and thus acknowledgment of
payment.

7. Kakungulu purchased a radio and signed an agreement without reading the exclusion
clauses because the letters were in very small print. Is kakungulu bound by the clauses?
When a party signs a document containing a clause, it is presumed that the party signed it
after reading the contents and is therefore bound by the provisions. Evidence of notice is
irrelevant in the absence of fraud. Therefore kakungulu was bound by the clauses.

8. Tumuhimbise’s car was stolen after she parked it in the supermarket parking yard. When
she complained, she was taken to a broken sign post at the extreme end of the perking
yard and it had the words, “park at your own risk”. Advise Tumuhumbiise
A notice should be displayed in a prominent place and should be capable of being seen and
read. The notice at the extreme end of the parking yard had not been brought to
Tumuhimbise’s attention because it was not displayed in a prominent place. The
supermarket should therefore compensate Tumuhimbise.

9. Odong an illiterate man was given a ticket which was a common form of contractual
document. It had the words “see back”. On the back it was stated that the company was
 excluded from liability for injury. Was Odong bound by the conditions that he could not
read?
Odong despite his inability to read was bound by the conditions on the ticket since the
notice was clear and was a common form of contractual document.

10. A owed B sh. 100000 which was to be paid at the end of two weeks. Before the two weeks
elapsed B asked A to pay sh.75,000 in satisfaction of the whole amount. B is now suing for
the whole amount. Advise A on whether he should pay the sh. 100.000
Ordinarily payment of a lesser sum on the date its due in satisfaction of a greater debt
cannot discharge the whole debt. However, according to the rule in Pinnel’s case, part
payment of a debt can only discharge the entire debt if it is done at the creditor’s request
before the due day. Since it was at A’s request that B paid 75,000 in satisfaction for the
100000, then B can not sue for the whole amount and the end of the two weeks.

11. A Policeman deployed a police dog to track down a thief after being promised lunch by the
L.C.1 chairman. No lunch was provided. Advise the policeman.
The policeman should be able to prove that deploying the dog was outside his legal duty in
order to be able to demand for the promised lunch. He cannot sue on a contract where the
act he performed was in relation to a duty he was legally required to perform.

12. A plaintiff sued the defendant because he had given pepper as consideration yet the
plaintiff did not like pepper at all. Explain whether such consideration was valid.
A contracting party can state whatever consideration he chooses. Consideration does not
cease to be good merely because a promise does not like it. So even if the plaintiff did not
like pepper, it was still adequate and valuable to the defendant.
 8. Tort summary.
CIVIL ACTION:

Definition;

An action brought to enforce, redress or protect a private or civil right,

A criminal action is an action instituted by the government to punish offenses against the public while
civil action is an action brought to enforce, redress or protect a private or civil right, a non-criminal
litigation.

A tort is a civil wrong breach of which a remedy may be obtained, usually inform of damages; or it is
a breach of duty that the law imposes on persons who stand in particular relation to one another

ASSAULT:

Assault is an intentional act that causes someone to be put in fear of immediate physical or bodily
harm.

Ingredients of assault:

Actual physical contact is not necessary to constitute an assault thus acts must be unlawful and
unjustified threatened use of violence or capable of causing fear, the plaintiff sufferd damages,

BATTERY:

Battery refers to intentional application of physical force against another without lawful jurisdiction.

There must be actual bodily harm.

Actual bodily harm is not necessary.

The main difference between battery and assault is that the former constitutes actual bodily contact
which is not the case with the latter.

Defense of consent.
Agreement to undergo medical treatment.
Rationale for consent
It provides a legal defense against a charge of battery. Where there is consent to touch, there is no
battery
Conditions for consent to be valid.
 The patient must be given sufficient information i.e. how serious the treatment is
 The patient must be competent i.e. have capacity to understand the information.
 The patient must be in a position to decide voluntarily i.e. no external pressure
 The patient must communicate his decision.

MENTAL SUFFERING
It is a reaction to an immediate and horrifying impact resulting to some recognizable psychiatric illness.
A person (the defendant) is presumed to intend the consequence

False imprisonment
Unlawful or wrongful restraint of one’s liberty-Bird v Jones
Ingredients of false imprisonment.
 The restriction or restraint must be total, it must also be unjustified and unlawful.
 The time of imprisonment does not matter as long as one proves that he was imprisoned.

Malicious Prosecution:
To recover, Plaintiff must prove the following elements

a. Institution of criminal proceedings. Plaintiff must show that Defendant took an active
part in instigating and encouraging the prosecution.
b. Favorable Outcome: The criminal proceedings must terminate in favor of the accused
plaintiff. An acquittal will be enough; so will a prosecutor’s decision not to prosecute
(but a plea bargain to a lesser offense will not suffice)
c. Absence of probable cause: Plaintiff must show Defendant lacked probable cause to
institute the legal proceedings.
i. Reasonable mistake: If Defendant made a reasonable mistake, she does not
lack probable cause.
ii. Effect of outcome: the fact that Plaintiff was acquitted does not itself
establish lack of probable cause. Defendant has the right to show, in the tort
case, that Plaintiff was guilty by preponderance of the evidence rather than
beyond a reasonable doubt and that Defendant therefore had probable
cause.
d. Improper purpose: Plaintiff must show that Defendant acted out of malice, or for
some other purpose than bringing the offender to justice.
e. Damages: satisfied by proving harm to reputation, humiliation, mental suffering, or
any other injury that may give rise to damages in a civil action.

DEFAMATION:

 It’s the publication of untrue or defamatory statements concerning a person without lawful
justification
OR
 It is the publication of untrue statement about a person that tends to lower his reputation in
the opinion of right thinking members of society
 Rationale:
To protect one’s reputation.

DEFAMATATORY COMMUNICATION
General: Defamation is actually two sub-torts, “libel” and “slander”.
 Libel refers to a defamatory statement made in a permanent form.
 Slander refers to a defamatory statement not in a permanent form.
 An innuendo is a statement in which the words may be defamatory as a result of a hidden
meaning
 The hidden meaning must be understood by people to whom it is published.

 Elements: to prove a case in either libel or slander, Plaintiff must show:

 False, Defamatory statement: a false and defamatory statement concerning him.
 Publication: A communicating of that statement to a person other than the plaintiff.
 Fault: fault on the part of Defendant, amounting to at least negligence, and in some
instances a greater degree of fault.
  Special Harm(damages): either “special harm” of a pecuniary nature, or the action
ability of the statement despite the non-existence of such special harm.

Injury to Reputation: to be defamatory, a statement must have a tendency to harm the

reputation of the Plaintiff.
Reputation not actually injured: For a statement to be defamatory, it need not actually harm
Plaintiff’s reputation. It must simply be the case that, if the statement had been believed, it would
have injured Plaintiff’s reputation.

Meaning Attached:
Many statements can be interpreted in more than one way. Where this is the case, the statement
is defamatory if any one of the interpretations which a reasonable person might make would tend
to injure Plaintiff’s reputation, and Plaintiff shows that at least one of the recipients did in fact
make that interpretation.
a. Belli v. Orlando Daily Newspapers. General rule: when statement is ambiguous, Trier
of fact must determine whether statement is defamatory]
Reference to Plaintiff:-
Plaintiff must show that the statement was reasonably interpreted by at least one recipient as
referring to him (Plaintiff).
Intent irrelevant: Plaintiff does not necessarily have to show that Defendant intended to refer to him.
As a common-law matter, even if Defendant behaved non-negligently and intended to refer to
someone else, Plaintiff can still sue.

Groups: If Defendant’s statement concerns a group, and Plaintiff is a member of the group, Plaintiff
can recover only if the group is a relatively small one. [Neiman-Marcus v. Lait …. women (382) couldn’t
sue but men (25) could.]

Reference need not be by name: if a non-explicit reference to Plaintiff is reasonably understood as in

fact referring to Plaintiff, it does not matter that Plaintiff is referred to by a different name or
characterization.

Opinion: a statement of pure opinion can never be defamatory.

Implied facts: However, if a statement of opinion implies undisclosed facts, and a statement
of those facts would be defamatory, the statement itself will be treated as defamatory.

LIBEL AGAINST SLANDER

Significance of Distinction: Only makes a difference to the requirement of special harm. To
establish slander, plaintiff must show that he suffered pecuniary harm. To prove libel, by contrast,
Plaintiff does not have to show special harm.

Libel: libel consists mainly of written or printed matter.

 Embodied in physical form: most states hold that it includes any communication
embodied in physical form (for instance, computer tape, phonographic records).
 Radio and TV: where a program is broadcast on TV
i. Written script: if it came from a written script, courts treat it as libel.

ii. No Script: If program is ad-libbed, courts are split about whether it is libel
or slander.
 Shor v. Billingsley … Plaintiff sued Defendant (television commentator) for libel in an
ad-libbed statement televised nationwide. General rule: defamatory remark on
televised program, even if ad-libbed and not read from scrip
  Rationale: radio and TV can reach a large audience (even larger) than written
publication. Therefore, a person can be even more harmed by broadcast than by
written publication. Therefore, broadcast statements can be libel, which is easier to
prove than slander.

Slander: all other statements are slander. An ordinary oral statement for instance, is slander.
Special harm is typically required.
Terwilliger v. Wands – Defendant said Plaintiff (male) was an adulterer and kept woman’s
husband in prison. General rule: Plaintiff must prove special damages in action for slander.
Must show an injury to reputation that prevents Plaintiff from receiving that which otherwise
would be conferred upon him.

Special Harm: Plaintiff may generally establish slander only if he can show that he sustained some
special harm. Usually, this is pecuniary in nature
Slander per se: There are four kinds of utterances which, even though they are slander rather than
libel, require no showing of special harm.
1. Crime: statements imputing morally culpable criminal behavior to Plaintiff.
2. Loathsome disease: statements that P suffers venereal disease.
3. Business, profession, trade or office: allegation that adversely reflects on Ps fitness to
conduct her business, trade, profession or office.
4. Sexual misconduct: statement imputing serious sexual misconduct to Plaintiff. Terwilliger v.
Wands. Principle under criminal law says woman’s unchastity is slander per se. A male’s
unchastity is not slander per se.

Libel: In the case of libel, common law courts don’t require proof of actual harm, and can award
“presumed” damages. However, recent Supreme Court decisions cut back on states’ ability to do this.
Matters of public concern: if the statement involves a matter of public concern
or a public figure, and recovery is allowed w/o proof of actual malice, presumed
damages may not be awarded.
Matter of private concern: If statement does not involve a matter of public
concern, presumed damages may be allowed, even without showing actual
malice.
Publication
Generally: Plaintiff must show that defamation was published. Publication means seen
or heard by someone other than Plaintiff.
 Must be intentional or negligent:
Economopoulos v. A.G. Pollard Co. General rule: statement must be communicated to
someone other than the person defamed, in order to be defamatory. Statement is only
“communicated” if it can be understood by the listener.

DEFENCES UNDER DEFAMATION:

 Justification/ truth: a statement is not defamatory if it is true. This is an absolute
defense. At common law, Defendant has the burden of proving truth.
Substantial truth: for truth to be a barrier to recovery, it is not necessary that the
statement be literally true. It is enough that the statement be substantially true.
Kalian v. Doubleday & Co. general rule: while substantial truth is an absolute defense to
defamation, court should not instruct jury of defense if there is no evidence presented in
support.
 Defense is not available if the defendant is unable to prove the truth of facts.
 Fair comment:
A comment is an expression of opinion based on certain facts
  It must be a comment and not a statement of fact
 Must be a fair and bona fide comment
 Matter commented on must be of public interest
 Privilege (absolute and qualified)
Absolute privilege is granted in situations where freedom of communication is of paramount
importance
Example of absolute privilege.
 Parliamentary proceedings.
 Judicial proceedings.
 Communications by public officers.
 Communications between client and advocate.
 Qualified privilege protects a maker of defamatory statements if he acted honestly and
without malice in the course of discharging his duties
• Must prove that statement was made in discharge of duty
• That the statement was made without malice.

REMEDIES
• Damages
• injunction

TRESPASS TO LAND
It is the unlawful entry by one person on land in the possession of another
OR
It is the unjustifiable interference with another person’s possession of land
Ingredients
 Unlawful entry-slightest entry
 Possession of land
Trespass on highway: - unreasonable and unjustifiable use of a high way
Trespass ab nitio: - person enters under authority but abuses it
Continuing trespass: - a trespasser remains on land or causes thing to remain

Defenses
 Co-ownership
 Defect on fence
 Exercise of legal right
 License
 Claim of right
 Re-entry
 Authority of law

REMEDIES
 Injunction
 Recovery of land
 Re-entry
 Mense profits
 Damages
 Removal or eviction

TRESPASS TO GOODS
It is the unjustified interference of goods belonging to another person
Conversion
Unauthorized exercise of rights of ownership of goods belonging to another person
 Proof of ownership/possession/right to immediate possession of property
Writ of detinue
Here the defendant unjustifiably takes possession of the plaintiffs goods and he specifically asks for
them but he deliberately refuses to give them to him.

DEFENSES
 Rightful claim
 Obedience to legal authority
 Retaking of goods

REMEDIES
 Recovery of goods or their value
 Damages

NEGLIGENCE:
Means the breach of a legal duty to take care which results into damage to the claimant.
Elements.
 Duty to care
 Breach of duty of care
 Causation. (caused by the defendant)
 damage

Concept: Generally, a person owes everyone else with whom he comes in contact a general “duty of
care.” Normally, this duty is to behave with the care that would be shown by a reasonable person.

Duty of care

Defined: “A legal obligation that is owed or due to another and that needs to be satisfied; or an
obligation for which somebody else has a corresponding right”.

Generally speaking, a person owes a duty of care to those around him or her. I.e. a duty to act
reasonably. How is this duty of care determined? By the objective standard. When evaluating a
person’s conduct, tort law asks….Would a reasonable person of ordinary prudence in the defendant’s
position act as the defendant did?

Must only be owed to the plaintiff: Proximity (neighbor principle) those are persons who can be closely
and directly affected by your acts.

Foreseeability: Means that the claimant must be a foreseeable victim. Reasonable, just and fair

Damages

A damage is a loss or harm. The issue of damage is linked between causation and remoteness

Causation:

It establishes a causal link between the defendants' negligence and the claimants damage.

There are two aspects of causation that must be considered: cause in fact and proximate cause

Cause in fact: “the cause without which the event could not have occurred.”
Proximate cause: “a cause that is legally sufficient to result in liability; an act or ommission that is
considered in law to result in a consequence, so that liability; can be imposed on the actor.” Also
known as legal cause.

How does the law determine what is a cause in fact?

The “but for” test: If the defendant had not acted negligently (by breaching the standard of care), the
plaintiff would not have been injured

Proximate Cause: Foreseeability.

Foreseeability: Most courts say that a defendant is liable only for consequences of his negligence that
were reasonably foreseeable when he acted

Remoteness of damages.

Seeks to limit the defendant’s liability to those results that are of the same general sort that made the
conduct negligent in the first place

It sets the limit of legal responsibility. Even when it is proved that there is injury, damage dose not
automatically occur.

Directness test: A tort feasor is liable for all the damages that are a direct consequence of his conduct

Foreseeability test: One could not be made to shoulder liability for what he could not have reasonably
foreseen.

Neglect words or misrepresentations

They are innocent (not fraudulent) but negligent statements made by one party and relied on by
another to his or her detriment.
The damage suffered is economic in nature and these Claims are limited to statements made by
[Link] doctors, accountants, bankers etc.
To recover there must be a fiduciary relationship Except, Statements with disclaimer Casual
statements

Pure economic loss

These are Losses such as interruption of expected income .e.g. wages failure to make an expected
gain from a valuable contract.
Economic loss cannot be compensated because the law of tort largely provides for compensation of
physical loss
Basically because Proximity of economic to physical loss. Reason is No duty to care, Remoteness of
damages (not foreseeable)
Res Ipsa Loquitor:
This basically means that the facts speak for themselves Rule of evidence not a rule of law(proof of
negligence) There must be reasonable evidence of negligence.
FAILURE TO ACT
 No general duty to act:
A person generally cannot be liable in tort solely on the grounds that she has failed to act.

 No duty to protect or give aid: This means that if Defendant sees Plaintiff in danger and fails
to render assistance, D is not liable for refusing to assist.
Exceptions: There are a number of commonly-recognized exceptions to the “no duty to act” rule:
  Business or University Premises: In most courts, whoever maintains business premises must
furnish warning and assistance to business visitor.
i. A store owner has the duty to rescue a person in peril if the instrumentality
causing the injury is under the control of the owner.
ii. A contractual relationship may impose a duty to act, resulting in liability for
failing to act.
iii. Exception: RULE: A university has no duty to control the private lives of its
students.
 D involved in injury: If danger or injury is due to Defendant’s own conduct, or an instrument
under Defendant’s control, Defendant has the duty of assistance.
 Storeowner has the duty to rescue a person in peril if the instrumentality causing the
injury is under the control of the owner.
 Co-venturers: If P and D are engaged in a common pursuit.
 Assumption of duty
 Preventing assistance to others: D is especially likely to be found liable if he begins to
render assistance, and this dissuades others from helping P.
 Misfeasance: [example: D stops to help an injured pedestrian, and others decline to
help thinking it has been taken care of, D can’t then abandon helping. ]

 Mere promise: courts are split on this. Traditionally, no liability, however many
modern courts would count this as making D liable.
Duty to control others

Special relationship

 Spouse: A spouse who has actual knowledge or a special reason to know of the
likelihood of his or her spouse engaging in sexually abusive behavior against 3rd party
has duty to take reasonable steps to prevent or warn.

 Therapist: A therapist has a duty to exercise reasonable care in controlling the harmful
conduct of a patient or in warning others about the dangerous propensity.

UNBORN CHILDREN
A. Modern View: In most jurisdictions, no duty of care is owed to an unborn child. However,
most courts have rejected view that an infant injured pre-natal could never recover if born
alive. Today, it varies:
a. Child born alive: If the child is eventually born alive, nearly all courts allow recovery.
b. Child not born alive: Courts are split about this.
i. Common1 Law - No duty:
Endresz v. Friedbcvbnm,./erg – Plaintiff (pregnant woman) brought wrongful death action
against car driver for still-born babies. General rule: parents of stillborn child could not maintain a
wrongful death action against the person causing the death.

ii. Modern View: some Court’s allow wrongful death actions for unborn
children.

c. Wrongful life: no cause of action for wrongful life. Infant may not file wrongful life
claim to recover damages for diminished childhood and pain and suffering.
PRIVITY OF CONTRACT
A. General rule: a person who is not a party to a contract cannot recover damages in tort
resulting from a breach of the contract, unless the contracting party undertook a public duty
to act.
B. Exceptions:
a. Dangerous Product: When Defendant manufactures a product that can be dangerous,
knowing the product will be used by people other than original purchaser,
manufacturer can be liable to anyone injured, even if they aren’t in privities.

DAMAGES

CATEGORIES OF DAMAGES
A. Nominal Damages: awarded in recognition that a legal injury has occurred but not intended
to compensate the injury.
B. Compensatory Damages: those that directly stem from tortuous act
C. Punitive Damages: intended to punish tortfeasor and set an example (deterrence) rather than
compensate the victim.

PERSONAL INJURIES
Maximum Recovery Rule: trial court may review damages to determine whether it exceeds the
maximum amount which the jury could reasonably award. Anderson v. Sears, Roebuck & Co. RULE:
trial court may review jury’s damages to determine whether they exceed the maximum amount a jury
could reasonably award.

What is Excessive?

Damages will be deemed excessive if it falls outside the range of fair and reasonable compensation or
results from passion or prejudice, or if it is so large that it shocks the judicial conscience.

Richardson v. Chapman – two girls injured when truck driver rear-ended their car. Court slightly
reduces damages but does not find jury to have been prejudiced. Damages didn’t shock judicial
conscience.

A. Collateral Source Rule: common law, Plaintiff is entitled to recover her out-of-pocket
expenses, even if P was reimbursed for these losses by some third party.
a. Rationale: despite the fact that double recovery occurs, the claimant should benefit
from the Collateral Source Rule, not the tortfeasor. Tort feasor should internalize the
whole cost.
b. Modifications: Note: over half the states have modified the collateral-source rule by
statute. Half of these say the information on the collateral source is admissible
evidence w/o indicating to the jury what they are to do w/ the information. Others
specify the award is to be reduced by the amount of collateral source.

B. Mitigation: Plaintiff has a “duty to mitigate” meaning Plaintiff cannot recover for any harm
which, by reasonable care, he could have avoided. Plaintiff cannot recover for harm which
would have been avoided if plaintiff had sought adequate medical care.
 Zimmerland v. Ausland : Rule: there is a duty to mitigate damages in tort law. An
injured person cannot recover damages for injury that could have been lessoned by a
reasonable treatment.

PUNITIVE DAMAGES:
A. Generally: punitive damages can be awarded to penalize Defendants for particularly
outrageous conduct. (common in products liability cases). Purpose is to deter future action
and punish D.
a. Negligence Cases: in cases of negligence, punitive damages are usually awarded only
where D’s conduct was “reckless” or “willful and wanton”.
i. Reckless Disregard: To find reckless disregard, courts look to the cost of
reducing the risk, D’s awareness of the danger, reasons for failing to discover
the danger, and other factors.
Reduction of danger was economically feasible and D created a “substantial danger”

DEFENSES IN NEGLIGENCE

CONTRIBUTORY NEGLIGENCE
A. General: At common law, doctrine of contributory negligence applies. Doctrine says that if
Plaintiff is negligent and contributes proximately to his injuries, he is totally barred from
recovery.
a. Haeg v. Sprague, Warner & Co. General rule: reliance on D was contributory
negligence and, therefore, a complete bar. Court would have preferred legislation
to allow comparative negligence.]
b. Rationale: To punish the plaintiff for his own negligence; don’t let someone with
“unclean hands” recover; economic reason – want to create incentives for both
Plaintiff and Defendant to take precaution.
B. Standard of Care: Plaintiff is held to the same standard of care as Defendant.
a. [Butterfield v. Forrester – P (on horse) trips over obstruction put in road by D.
Evidence was that P could have seen it but was riding too fast. RULE: under
contributory negligence doctrine, P who fails to exercise reasonable care to avoid an
injury is completely barred from recovery.]
C. Proximate cause: Contributory negligence defense only applies where Plaintiff’s negligence
proximately causes his injuries. The same test for “proximate causation” is used where
Defendant’s liability is being evaluated.

D. Claims against which defense is not usable: since contributory negligence defense is based
on general negligence principles, it may be used as a bar only to a claim that is itself based in
negligence.
a. Intentional Torts: defense cannot be used where P’s claim is for an intentional tort.
b. “Willful and wanton” or “Reckless”: If Plaintiff’s conduct was “willful and wanton” or
“reckless”, contributory negligence defense will not be allowed.
c. Negligence per se: contributory negligence can usually be asserted as a defense even
to D’s “negligence per se” unless the statute was enacted solely for the purpose of
protecting a class of which P is a member, in which case it usually cannot be asserted.

E. “Last Clear Chance” doctrine: “last clear chance” acts as a limit on contributory negligence. If
Defendant had the last opportunity to prevent the harm, and Plaintiff did not have the
 opportunity, Defendant may be liable because this wipes out the effect of Plaintiff’s
contributory negligence.
a. Rationale: Proximate Cause – hard to say Plaintiff was the cause of the accident,
greater fault with the defendant and judges want to avoid applying harsh
contributory negligence rule.

COMPARATIVE NEGLIGENCE
General rule: A “comparative negligence” system rejects all-or-nothing approach of contributory
negligence. Instead, it attempts to divide liability between Plaintiff and Defendant in proportion to
their relative degrees of fault. Plaintiff is not barred from recovery for contributory negligence, but
his recovery is reduced by a proportion equal to the ratio of his own negligence to total negligence.

Scott v. Alpha Beta Co. - Plaintiff (bad knee & wearing slippers) sues Defendant after falling
on slippery floor.
 Rule: Defendant found 60% liable, Plaintiff 40% liable. Defendant should have
mopped up the water and Plaintiff shouldn’t have been wearing slippers with a bad
knee.
VOLUNTARY ASSUMPTION OF RISK
General rule: Plaintiff assumes the risk of certain harm if she has voluntarily consented to take her
chances that harm will occur. Where such an assumption is shown, common law says Plaintiff is
completely barred from recovery.
Express Assumption of Risk: If Plaintiff explicitly agrees with Defendant, in advance of any
harm, that Plaintiff will not hold Defendant liable, Plaintiff has “expressly” assumed the risk of that
harm. Does not typically work in products liability cases.
Public policy against assumption: Even Plaintiff’s express assumption of the risk will not bar
Plaintiff from recovery if there is a public policy against the assumption of risk involved. In
Winter stein v. Wilcom General rule: parties may assume the risk of negligence in a written
agreement, provided that agreement does not violate public policy.].

Implied Assumption of Risk: Even if Plaintiff never makes an actual agreement with Defendant
whereby Plaintiff assumes the risk, Plaintiff may be held to have assumed certain risks by her conduct.
Here, the assumption of risk is implied.
Two requirements: For Defendant to establish implied assumption, he must show that
Plaintiffs actions demonstrated that she knew of the risk in question; and voluntarily
consented to bear that risk herself.

EXCEPTIONS:
i. Duress: For instance, there is no assumption of risk if Defendant’s conduct
left Plaintiff with no reasonable choice but to encounter a known danger.

ii. Choice not created by Defendant: where it is not Defendant’s fault that
Plaintiff has no reasonable choice but to expose herself to the risk, the
defense will apply.

Knowledge of Risk: The requirement that P be shown to have known about the risk is strictly
construed. For instance, the risk must be one which was actually known to P, not merely one which
ought to have been known.

Other defences
Act of God
Intervining act of a 3rd party
 Mistake
Statutory authority

STATUTE OF LIMITATIONS
A. Discovery of Injury: If Plaintiff does not discover his injury until long after Defendant ’s
negligent act occurred, the statute of limitations may not start to run until Plaintiff discovered
(or ought to have discovered) the injury.
a. Medical malpractice: frequently apply the “time of discovery” rule for SOL accrual.
i. [Teeters v. Currey – P (woman patient) sues D (doctor) for negligently
performing tubal ligation when she discovers she is pregnant two years later;
RULE: Discovery Rule: a cause of action for medical malpractice does not
accrue until the injured party discovers or should have discovered the injury.]
Majority: have adopted discovery rule

B. Tolling: tolling may also stop the running of time if P is a minor or incompetent or D
fraudulently conceals the presence of a cause of action.

IMMUNITIES
A. Family Immunity: Common law recognizes two immunities in families: between spouses and
b/w parent/child.
a. Husband and Wife: at common law, inter-spousal immunity prevented suits by one
spouse against the other for personal injury. They were considered one single entity.
i. Rationale: 1) allowing husbands and wives to sue each other in tort would
disrupt the harmony in the home. 2) An injured spouse has adequate
remedies in criminal law and divorce. 3) Might lead to frivolous lawsuits. 4)
Potential for collusion and fraud where insurance is involved.

ii. Abolition of rule: many countries have completely abolished this immunity.
1. [Freehe v. Freehe – husband sues wife for injuries caused by
negligently maintained tractor. RULE: spouses are no longer immune
from liability to each other for personal injury cases.]

b. Parent/Child: at common law, there is immunity that bars suit by child against his
parents or vice versa. Many states have abolished this as well.
i. [Renko v. McLean – 18 yr old P (daughter) sues D (mother) for injuries
sustained in car accident when she was 17; RULE: children may not sue their
parents for torts. This doctrine is applicable even if the child is injured during
minority but does not bring suit until after she reaches majority.]
1. Rationale: same as for husband/wife. Also, might make parent
unwilling to drive kids around. 3rd party could claim contrib. against
parent for negligent supervision.

B. Charitable Immunity: Charitable organizations, as well as educational and religious ones,

receive immunity at common law.

PRODUCTS LIABILITY.

Three theories standout under product liability:

  Products liability is when a seller is liable for injuries that a defect causes to its purchaser,
user, or sometimes bystanders. Usually the injury is personal injury. The liability can be
based on any of the following theories:
a. Negligence
b. Warranty
c. “Strict tort liability”

NEGLIGENCE
A. Negligence & privity: ordinary negligence principles apply to a case in which personal injury
is caused by a carelessly manufactured product.
B. Classes of Defendants
 Manufacturers: manufacturer is most likely in the distribution chain to have been
negligent because he carelessly designed the product, carelessly manufactured the
product, carelessly performed reasonable inspections and tests of finished products,
failed to package or ship it in a reasonably safe way and did not take reasonable care
to obtain quality components from a reliable source.
 Retailers: A retailer who sells a defective product may be, but usually is not, liable in
negligence. Just because D sold a negligently manufactured or designed product is
not by itself enough to show that she failed to use due care. Retailer typically has no
duty to inspect the goods. Thus, suit against the retailer is now normally brought on
a warranty or strict liability theory, not negligence.

STRICT LIABILITY
A. General: almost all countries apply doctrine of “strict product liability”. Seller of product is
liable without fault for personal injuries caused by product if it was sold in a defective
condition.

The general rule: Strict product liability applies to emotional distress as well as physical injury.
Rationale: manufacturer is cheapest cost avoider.

a. Non-manufacturer: strict product liability applies also to retailers, that are in the
business of selling such products.

b. Meaning of “Defective”: departs from its original design even though all possible care
was exercised.

B. Unknowable Dangers: if danger of product’s design was “unknowable” at time of

manufacture, there will be no liability. There was no “foreseeable risk” and thus no design-
defect liability.
a. Failure to Warn: Similarly, there is no “failure to warn” liability for a danger whose
existence was unknowable at the time of manufacture. Strict liability for failure to
warn is therefore limited.

C. Obvious Dangers: a danger in a product being “obvious” can impact liability.

a. Manufacturing defect: defect being obvious probably will not block liability.
Obviousness of problem does not stop the product from being defective. (e.g. can of
tuna has a sliver of metal in it.)

b. Design Defect: this would be a factor of liability but doesn’t automatically mean that
P cannot recover. Question is whether the design’s benefits outweigh its dangers,
 considering possible alternative designs. Therefore, negligence/fault analysis creeps
in to determine whether strict liability applies.

c. Failure-to-warn: if defect is obvious, this will normally prevent failure-to-warn liability

because adding a warning won’t add anything b/c P will be unlikely to notice it as well.

D. Proving the case (elements) Green man v. Yuba Power Products: court adopts strict liability
approach. Regardless of any express or implied warranties were made, manufacturers is liable
when, defective product, used as intended, caused injuries, and manufacturer knew product
would be used w/o inspection by user.]
a. Product was manufactured by D
b. Product was defective
c. Defective aspects of product were cause in fact and proximate cause of injuries
d. Defect existed at time product left D’s hands.
Rix v. General Motors Corp. – general principle: product must be defective at the time it was
sold.
DESIGN DEFECTS
A. Three theories: Products liability is when a seller is liable for injuries that a defect causes to
its purchaser, user, or sometimes bystanders. Usually the injury is personal injury. The liability
can be based on any of the following theories:

B. Negligence dominates: As the 3rd Restatement puts it, a product has a defective design “when
the foreseeable risks of harm posed by the product could have been reduced or avoided by
the adoption of a reasonable alternative design…”
a. Court will consider: cost and utility of the alternative compared w/ cost and utility of
D’s design

C. Risk Utility Analysis: instead of the “reasonable alternative design” courts have started using
a “negligence-based risk-utility analysis” focusing on actions of the manufacture rather than
just on the product being “defective”.
a. [Prentis v. Yale Mfg. Co – P (forklift operator) sues manufacturer for design defect of
failing to install a seat; RULE: design defects judged under negligence, weighing risks
of injury against costs of safer designs; Reason: strict liability has proved problematic;
allows juries to focus on manufacturer’s conduct, not just defining “defective”]

b. P bears burden: P bears burden of proving a design defect based on risk-utility

analysis. [O’Brien v. Muskin Corp. – P (diver) dove off roof into shallow pool and sued
for slippery bottom (design defect) and failure to warn of the danger; RULE: P bears
burden of proving the design defect based on risk-utility analysis]

c. Relevant Factors:
i. Usefulness of the product
ii. Likelihood product will cause injury
iii. Availability of safer substitute
iv. Manufacturers ability to eliminate risk
v. Users ability to avoid danger by use of reasonable care
vi. User’s anticipated awareness of the danger
vii. Feasibility of manufacturer to spread the loss by price setting or insurance.
[O’Brien v. Muskin Corp. – see above]

D. Types of Claims: there are two common types of design-time claims

 a. Structural defects: P shows that b/c of D’s choice of materials, the product had a
structural weakness, which caused it to break or otherwise become dangerous.

b. Lack of safety features: P shows that a safety feature could have been installed on
the product with so little expense (compared to cost of product and magnitude of
danger) that it is defective design not to install the feature.
i. State of the Art: D can rebut “lack of safety features” by showing that
competitive products similarly lack the safety feature to show it is “state of
the art”. Alternatively, they may try to prove that “the best scientific
technology that was economically feasible” was used…
1. [O’Brien v. Muskin Corp. – “state of the art” evidence may help D]

E. Suitability for intended purpose: D not usually liable for injuries stemming from
unforeseeable, unintended misuses of the product.
a. Unforeseeable Misuse: if misuse is not reasonably foreseeable, D does not have a duty
to guard against the misuse.

b. Foreseeable Misuse: if misuse is reasonably foreseeable, D must guard against the

danger or muse sometimes warn the purchaser against the misuse.
i. [Ford Motor Co. v. Matthews – P (tractor operator) killed when defective
safety switch allowed tractor to be started in gear; RULE: manufacturer is
liable for reasonably foreseeable injuries caused by abnormal uses of its
products.]
ii. MAJORITY: foreseeable misuse does not prevent liability. Tractors are meant
to be started so this was foreseeable.

8.1.1 DUTY TO WARN

 Duty to warn: an extra obligation on the manufacturer:
Regarding the Three theories:
a. Duty to Warn & Manufacturing defects: if a product is defectively manufactured, no
warning can save D from strict liability.

b. Duty to Warn & Design Defects: if a product is defectively designed, a warning will
generally not shield D from strict product liability.

c. Properly manufactured and designed product: even if properly manufactured and

propertly designed, D must warn if there is a non-obvious risk of personal injury from
using the product.

 Risk-Utility Basis: Under 3rd Restatement, a product will be deemed defective on account
of “inadequate instructions or warnings”…”when the foreseeable risks of harm imposed
on the product could have been reduced or avoided by the provision of reasonable
instructions or warnings…and the omission of the instructions or warnings renders the
product not reasonably safe.

 Unknown and unknowable dangers: If Defendant can show that he didn’t know and
should not have known, of the danger at the time of the sale, most courts hold there is no
duty to warn of the danger.

 “Open & Obvious” Danger: If the danger is obvious to most people, this will be a
factor in reducing D’s obligation to warn.
8.1.2 WHO MAY BE A DEFENDANT
 Chattels: In cases involving “good” or “chattel”, both strict and warranty liability will apply to
any seller in the business of selling goods of that kind.
a. Retailers: this means that a retailer who sells but did not manufacture the good will
have strict liability and warranty liability, even if she could have done nothing to
discover the defect.
i. Indemnity: if retailer is held liable in this way, she will be entitled to indemnity
from the manufacturer or wholesaler as long as the retailer was not negligent.

b. Used Goods: courts are split on whether there is strict or warranty liability for seller
of used goods. MAJORITY hold there is no such liability.
i. [Peterson v. Lou Bachrodt Chevrolet Co. - General rule: remote retailer,
outside original producing marketing chain, is not subject to strict products
liability.

 Services: someone selling services, rather than goods, generally does not have strict liability
nor UCC implied warranties.

NUISANCE

“Nuisance” refers to a type of injury not a type of tort. In “public nuisance”, the injury is the loss of
any right P has by virtue of being a “member of the public”. In “private nuisances”, P’s injury is the
interference with his use or enjoyment of his land and must be different than that occurring in the
public in general.

Three mental states:

1. Intentional Interference: intentional interference w/ P’s rights
Morgan v. High Penn Oil Co. General rule: intentional invasions of people’s
use and enjoyment of land can be actionable, even when the conduct is not
negligent.
2. Negligence
3. Abnormally dangerous activity or other conduct giving rise to strict liability.

PUBLIC NUISANCE
A. Definition: “an interference with a right common to the general public.”
For instance, health hazards, improper businesses (unlicensed bar), obstruction of public streets:
a. Factors: factors considered when deciding if it is a public nuisance including type of
neighborhood
i. Substantial harm required: public nuisance will not be found unless harm is
substantial
ii. Must injure public at large: Plaintiff must show there has been actual injury
to public at large.
b. Need not be a crime: nuisance does not require conduct to be a crime.

B. Requirement of Particular Damage: private citizen may recover for his damages from a public
nuisance only if he sustained damage that is different in kind and degree from that suffered
by public generally.
 a. [Philadelphia Electric Co. v. Hercules, Inc. –principle here is: actions for private
nuisance can typically only be brought by neighboring landowners; actions for public
nuisance can be brought only be members of public whose general rights have been
interfered with]

b. Magnitude of monetary loss irrelevant: In determining whether P’s damage is

different in kind, the magnitude of financial harm is usually irrelevant.
c. Injunction: requirement of a “different kind” of harm will not necessarily be imposed
in suits of injunction as opposed to one for damages. (injunction will help everyone
but prevent windfall of litigation)

C. Who sues for Public Nuisance? Generally only the district attorney or other state official.
Therefore, public nuisance is like a low-grade criminal offense.

PRIVATE NUISANCE
Definition: “unreasonable interference with P’s use and enjoyment of his land”. Only about land.
Unless your land is affected, you can’t sue.
a. Must have interest in land: P can sue on private nuisance only if he has an interest in
the land being affected (e.g. fisherman injured by oil spill cannot sue for private
nuisance because no interest in land held by him is affected)

b. Elements:
I. That his use and enjoyment of his land was interfered within a substantial
way; and
II. Defendant’s conduct was negligent, abnormally dangerous, or intentional.

Interference with use: interference must be substantial. No recovery for small inconveniences.

Defendant’s Conduct: no general rule of “strict liability” in nuisance. Plaintiff must show Defendant’s
conduct was negligent, intentional or abnormally dangerous.
 Intentional: Defendant’s conduct will be deemed “intentional” even if Defendant does
not desire to interfere with Plaintiff’s use and enjoyment, as long as Defendant knew with
Substantial Certainty, that such interference would occur.

 “Unreasonableness”: Defendant’s interference with P’s interest must be unreasonable

Two Tests for reasonableness: unreasonable if

1. Benefit against Harm Test: Harm to Plaintiff outweighs utility of
Defendant’s conduct; or
2. Great Burden to Plaintiff Test: Harm caused to Plaintiff is greater
than Plaintiff should be required to bear without compensation.
Bryant v LeFever - principle: Plaintiff has no property right to the passage of air from his
chimney. Property rights determine who has the nuisance.

 Nature of Neighborhood: nature of neighborhood is important factor in judging whether

Defendant’s conduct was unreasonable. The more industrial, the less likely the conduct will
be found to be a nuisance.

 Location vs. Operation: Winget v. Winn-Dixie Stores divides nuisance analysis into two
components:
  Nuisance by virtue of location and nuisance according to manner of operation.
B. Who can sue for private nuisance?
a. Neighboring landowners: in general, only neighboring land owners can use for private
negligence.

b. Subsequent purchasers: Caveat emptor precludes subsequent purchasers from suing

for private buisance resulting from the seller’s use of the property which was
purchased.
i. [Philadelphia Electric Co. v. Hercules, Inc. – above RULE: private nuisance
usually protects neighbors, not subsequent purchasers. Here it failed because
of caveat emptor. Simple to inspect the land]

C. Remedies: P may be entitled to one or both remedies.

a. 1. Damages: if harm has already occurred, P can recover compensatory damages.
i. Continuing Nuisance: nuisance that causes harm, but which may be allowed
to exist provided the party causing nuisance compensates aggrieved party for
injuries.
A continuing nuisance may be remedied by the payment of permanent damages, particularly where
the benefits of the activity outweigh the harm caused.
Boomer v. Atlantic Cement Co., Inc. – P (land owner) sued D (cement manufacturer) for nuisance of air
pollution; sought injunction; RULE: a continuing intentional nuisance may be remedied by the
payment of permanent damages, allowing the interfering activity to continue] DISSENT: this gives
cement company power of eminent domain, which is bad. Courts don’t like giving this power to
private individuals
Analysis: perhaps a better solution would be compensating land owner on an ongoing basis for as long
as the nuisance continued. This would incentivize manufacturer to get rid of nuisance, it would
compensate injured party, and it would allow useful manufacturing to continue if it could afford the
damages.
Diminution of property value not enough: you must prove that D unreasonably interfered with your
land and diminution in property value is not alone sufficient.

Injunction: if P shows damages would not be a sufficient remedy, she may be entitled
to an injunction against the continuance of the nuisance. This is the case when damages won’t
adequately take into account the subjective value of the land use.

Defenses:
 Contributory negligence: where claim is based on D’s negligent maintenance of the nuisance,
contributory negligence will normally be a defense. Where claim is based on Defendant’s
intentional private nuisance, it is not a valid defense.

 Assumption of Risk: generally applicable to nuisance cases and can bar recovery.
“Coming to the nuisance”: defense arises where Defendant claims Plaintiff “came to the
nuisance” with advance knowledge that the nuisance exists.
One factor considered: Spur Industries, Inc. v. Dell E. Webb Development Co.
General rule: Court says this is public nuisance. Even though P “came to the nuisance” D must
relocate because D is the cheapest cost avoider]
8.2 VICARIOUS LIABILITY

8.2.1 EMPLOYER-EMPLOYEE RELATIONSHIP

A. Respondeat Superior Doctrine: If an employee commits a tort during the “scope of his
employment” his employer will be liable (jointly with the employee). This is the rule of
respondeat superior. Punitive damages can only be given if the employer did something. If
they are only liable b/c employee did something they didn’t know about, no punitive
damages.

a. Applies to all torts: The doctrine applies to all torts, including intentional ones and
those in which strict liability exists, provided the tort occurred during the scope of
employee’s employment.

b. Rationale: employer has control over activities of employee and is therefore in best
position to prevent the damage, and employer is in best position to bear the cost by
obtaining insurance), encourages employers to hire responsible employees.

B. Who is an employee?:
Respondeat Superior is applied to all cases involving “employees”. But not to most cases involving
“independent contractors.”
a. Distinction: The main idea is that an employee is one who works subject to the close
control of the person who hired him. An independent contractor, by contrast, though
hired to product a result, is not subject to the close control of the person doing the
hiring.
i. Physical details: the control required to make a person an employee rather
than an independent contractor is usually held to be control over the physical
details of the work, not just the manner in which the work is turned out.

C. Scope of Employment: Respondent Superior applies only if employee was acting “within the
scope of his employment” when the tort occurred. The tort is within the scope of employment
if tortfeasor was acting with intent to further his employer’s business purpose.
a. Trips from home: Most courts hold that an employee traveling from her home to
work, is not acting in the scope of employment.

b. Frolic and detour: Even a detour for personal purposes may be found to be in the
scope of employment if the deviation was “reasonably foreseeable”.

c. Forbidden Acts: even if act was expressly forbidden by employer, it will be “within the
scope of employment” if done in furtherance of employment.

d. Intentional Torts: fact that the tort was intentional does not relieve employer of
liability.
i. Personal motives: If employee merely acts from personal motives he
probably will be found to be working outside of his employment and
employer will not be liable.

INDEPENDENT CONTRACTORS
A. No general liability: one who hires an independent contractor is not generally liable for the
torts of that person.

B. Exceptions: There are exceptions…

 a. Employer’s own liability: first, if the employer is negligent in her own dealings with
independent contractor, this can give rise to employer liability.

b. “General” Rule: if “independent contractor” is just a legal thing but everything else
makes it “appear” like he is an employee, vicarious liability counts.

c. Absolute duties: there are some duties deemed so important that the person doing
them will not be allowed to delegate them to anyone.

i. Examples of other non-delegable duties: 1) duty of general contractor to

construct building safely; 2)duty of landowners to maintain their lands in a
safe condition; 3) duty of employers to comply with Labor Code

d. Inherently Dangerous Activities: one who employs independent contractor will also
be liable where the work is such that, unless special precautions are taken, there will
be a high degree of danger to others.

INVASION OF PRIVACY

PRIVACY
A. Four Torts: the “invasion of privacy” cause of action is basically four distinct mini-torts, all
involving P’s right to be left alone. The four are: 1) misappropriation of P’s name or picture;
2) intrusion on P’s solitude; 3) undue publicity of P’s private life; and 4) the placing of P in a
false light.

B. Misappropriation of identity: P can sue if her name or picture has been misappropriated by
D for his own financial benefit.
a. [Flake v. Greensboro News Co. – P (photographed model) sued for unauthorized use
of photograph in baker (D) advertisement. D made a mistake and published full
explanation. RULE: unauthorized commercial use of a person’s photograph gives rise
to cause of action for “invasion of privacy”; only nominal damages]
i. Note: without malice you often can only get nominal damages.

C. Intrusion: P may sue if his solitude is intruded upon and this intrusion would be “highly
offensive to a reasonable person.” You can be liable regardless of whether the information is
published.
a. Examples: bugging a dwelling, tapping a telephone, or snooping through windows.

b. Must be in a private place: This “intrusion upon solitude” is triggered only where a
private place is invaded. Therefore, if D takes P’s picture in a public place, this will not
normally be enough.

c. Third Parties: A person who receives information obtained by intrusion is not liable
for intrusion of privacy
i. [Pearson v. Dodd – Senator Dodd (P) sued to columnists for publication of
information stolen from his office by two of his employees; RULE: not liable
for intrusion b/c this would “place too great a strain on human weakness to
hold one liable…who merely succumbs to temptation”]

D. Publicity of private life: P may recover if D publicized details of P’s private life. The effect must
be “highly offensive to a reasonable person.” Protects the right to be free from unwanted
 publicity about person’s private affairs which, although true, would be offensive to ordinary
people.
a. Not of legitimate public concern: It is probably a requirement for the “publicity of
private life” that the material not be of legitimate public concern.

b. Public figure: someone who has thrust himself into the public spotlight only has a very
limited right to be free from public disclosure.

c. Public Record: An action may not be brought for public disclosure when the
information involved already appears on public record.

E. False light: Plaintiff can sue if he is placed before the public eye in a false light, and this false
light would be “highly offensive to a reasonable person”
a. Actual malice: Where Plaintiff is a public figure, he can recover for “false light” only
if he can show Defendant knew the portrayal was false, or acted in reckless disregard
of whether it was.
MISUSE OF LEGAL PROCEDURE

B. Three torts: Three related tort actions protect P’s interest in not being subjected to
unwarranted judicial proceedings: 1) malicious prosecution; 2) wrongful institution of civil
proceedings; 3) abuse of process.

C. Wrongful Civil Proceedings: in most states, a tort action exists for wrongful institution of civil
proceedings. The requirements are the same as “malicious prosecution” action, except the
original proceedings were civil rather than criminal.
a. Elements: Plaintiff must prove, Defendant initiated civil proceedings against Plaintiff,
Defendant did not have probable cause to believe claim was justified, proceedings
were started for an improper purpose and civil proceedings were terminated in favor
of person against whom they were brought.

b. Special Injury: some jurisdictions continue to follow the English rule requiring proof
of special injury.

D. Abuse of Process: occurs where a person involved in criminal or civil proceedings uses various
litigation devices for improper purposes.
 9. LDC TORT QUESTIONS
1. What is meant by trespass to land?
It is an unjustifiable interference with the possession of land.
2. What must a person claiming trespass to land prove?
 Unlawful Entry.
 Possession.
3. Who can sue for trespass to land?
A person who is in actual possession of the land at the time the wrong was committed has
an exclusive right to sue for trespass to land. In other words the plaintiff is entitled to sue for
trespass to his land.
4. In trespass to land, what does continuing trespass mean?
Continuing trespass is when a trespasser remains on land or allows things he unlawfully
placed on another’s land to remain there.
5. A police officer had an arrest warrant for Kajubi Robert and went to his home where he
arrested Robert but after the arrest, he went ahead and searched the entire premises of
kajubi claiming that he was searching for more incriminating evidence without a search
warrant. Under what principle would the police officer be liable?
Trespass ab initio
6. When does one become liable for trespass on high way?
One becomes liable for trespass on high way when such person uses the high way in
unjustifiable and unreasonable way.
7. Define the term license as regards trespass on land
Licence means the authority or permission given to a person to enter land by the person in
possession of that land, usually to do something or for a specified period of time.
8. Explain the principle of trespass to air space.
The owner of land owner has a right to fill the air space above his land, within the limits of
the ordinary user and may sue for trespass if this right infringed upon. Thus the principle of
trespass to air space is where a person encroaches on the space above some one’s land
9. Which defenses are available to a person sued for trespass on land?
 Co-ownership
 Defect on fence
 Exercise of legal right
 Licence / permission to enter land
 Prescription
 Mistake
 Claim of right
 Re-entry on land
 Authority of law
10. What are the possible remedies to a person in action of trespass to land?
 Injunction
 Recovery of land
 Re-entry
 Mense profits
 Damages
 Removal or eviction
 Expulsion/ self- help
11. Briefly explain what you understand by conversion of goods.
 Conversion refers to unauthorized exercise of rights of ownership of goods belonging to
another person; or it is an intentional interference with the person’s use of property or
ownership or possession of property.
12. What are the available remedies to a person in a cause of action for trespass to goods?
 Damages
 Recovery of goods or their value
 Specific restitution of goods
 Seek order to pay market value of goods
13. In a cause of action for trespass to goods, which term is used where a party claims the
specific recovery of goods and services?
A writ of detinue
14. What are the most important ingredients of the tort of negligence?
 Duty of care
 Breach of duty of care
 Damage
15. In your own words, explain the neighbour principle in Donogue v Stevenson.
The neighbour principle is to the effect that one must take reasonable care to avoid acts or
omissions which he can reasonably foresee would be likely to injure their neighbour.
16. Name the factors that help in determining duty of care in negligence.
 Reasonable foreseeability
 Proximity
 Notions of Fair, Just and Reasonable
17. Once it is published that a duty of care was owed in the circumstances, it remains to be
examined to what extent must the tortfeasor, go out of his way to ensure the safety of
those affected by his acts.
(a) Which test is used to meet this?
The test of a reasonable man
(b) Briefly explain the test.
In determining or deciding whether the defendant was negligent or not, the court asks itself
whether a reasonable person placed in the circumstances would have behaved the way the
defendant did.
18. Distinguish between causation and remoteness of damages
Causation is concerned with establishing a causal link between the defendant’s negligence
and the claimant’s damage while remoteness of damage is used to set the limits of legal
responsibility (whether the defendant is liable for all the consequences of his negligence.)
19. When determining causation of damage, which test is used?
The “but for test”
Explain the test.
This test is to the effect that harm to the claimant would not have occurred, but for the
defendant’s negligence, then that negligence is the cause of harm.
20. Explain the directness test and the foreseeability test of remoteness of damage.
The directness test is to the effect that a tortfeasor is liable for all the damages that are a
direct consequence of his conduct.
Foreseeability test is to the effect that one is only liable for those consequences of his
negligent act which a reasonable man would have foreseen.
21. What do you understand by product liability?
It is the liability of a manufacturer of goods or commodity that causes injury to the actual
user of such commodity.
22. Explain the duty of care of a manufacturer of a commodity.
A manufacturer of products which he sells in such a form as to show that he intends them to
reach the ultimate consumer in the form in which they left him with no reasonable
possibility of intermediate examination and with knowledge that the absence of reasonable
care in the production of the product will result to an injury to the consumer’s life, owes a
duty to the consumer to take reasonable care.
23. In an action of negligence resulting to injury as a result of consuming a commodity or
product, which parties can be held liable and why?
 The manufacturer of a product as he has a duty of inspecting or testing a product if
its sound for consumption and failure of this, he is in breach of his duty to care thus
liable.
 A distributor of a product may be liable as he is also under a duty to inspect the
product before distribution.
 Suppliers are also liable if they carelessly represent the product to be harmless
without making adequate tests. This only arises when they are expected to carry out
an examination.
 Agents may also be liable as they directly represent the manufacturers.
24. What does negligence mean?
Negligence means breach of a legal duty to care which results in damage to the claimant.
25. What is the distinction between assault and battery?
An assault is an act which causes another person to apprehend the infliction of immediate,
unlawful force on his person. A battery is the actual infliction of unlawful force on another
person.
26. What is meant by force under common law?
This is the infliction of light, heat, electricity, gas, odour applied in such a degree as to cause
injury or personal discomfort.
27. What must a plaintiff show to prove assault?
That there was an apprehension of infliction of immediate and unlawful force on his person
28. What must a plaintiff who has been battered prove in court in order to succeed in that
cause of action?
One must prove that there was unlawful and unjustified infliction of physical force on the
person
29. State the legal reason for the need for consent from a patient for treatment whether he or
she is a child or an adult.
It is to provide those concerned in the treatment with a defence to a criminal charge of
assault and battery or civil claim for damages for trespass to the person.
30. John was locked up in his room by Peter for 5 hours to prevent him from attending his
friend’s party. What is John’s cause of action against peter?
His cause of action is unlawful or false imprisonment.
31. In the tort of false imprisonment, who bears the burden of proof?
The burden of proof is on the defendant to justify the arrest and imprisonment.
32. Distinguish between malicious prosecution and false imprisonment.
False imprisonment is wrongfully restraining the personal liberty of the plaintiff whereas
malicious prosecution is wrongfully and marliously bringing up criminal proceedings against
a person.
33. Mention the major ingredients of malicious prosecution
 Absence of reasonable and probable cause
 Malice
  That the prosecution was instituted
 That the prosecution terminated in the plaintiff’s favor
34. Define the reasonable and probable cause.
An honest belief in the guilt of the accused based upon a full conviction, founded upon
reasonable grounds, of the existence of the state of circumstances, which assuming them to
be true, would reasonably lead any ordinary prudent and cautious man, placed in the
position of the accuser to be the conclusion that the prosecution charged was probably
guilty of the crime imputed.
35. In trespass to person, there exists infliction of mental suffering which results to nervous
shock. Define nervous shock in the law of tort.
This is a reaction to an immediate and horrifying impact resulting in some recognizable
psychiatric illness.
36. Mention any defense one accused of unlawful imprisonment would have available in tort
law.
Reasonable condition. Where a man is prevented from leaving your premises because of
failure to fulfil a reasonable condition subject to which he entered them.
37. Which defense is available to one who led to the arrest and prosecution of another that
results into malicious prosecution?
The defense of reasonable and honest belief
38. During a shooting party, Jose fired a pheasant and one of the bullets from his gun glanced
off the bough of an oak tree and accidentally wounded Simon. What defense can Jose
raise?
Inevitable accident,
39. Mark led to the imprisonment of John in Mukono prisons in 1987 and John instituted
proceedings against Mark for false imprisonment in the High Court of Kampala in 2009.
What defense can Mark raise in the preliminary stage?
Mark can raise the defense of time bared or limitation
40. What is the justification for the defense of necessity in trespass to the person?
This may happen where the defendant acts for the purpose of protecting the plaintiff’s own
health or safety when treating him.
41. Define the tort of Defamation.
This is the publication of a statement concerning a person without lawful justification and
the statement is capable of lowering that person’s reputation before right thinking members
of society.
42. Of what use is defamation as a cause of action in the law of tort?
Defamation seeks to protect a person’s reputation however in so doing the law seeks to
strike a delicate balance between protection of the reputation and freedom of speech.
43. What must a plaintiff who alleges defamation prove in order to hold the defendant liable?
 That the statement was defamatory
 The words must refer to the plaintiff
 The words where published
 That the words were made by the defendant
 The plaintiff suffered damages
44. Explain innuendo according to common law.
This is a statement made with hidden defamatory meaning.
45. Diana is accused for talking to her lawyer about Peter’s habits and conduct, Peter says this
is defamatory. What would be Diana’s possible or available defense for her?
She would have the defense of qualified privilege.
46. What amounts to publication in the tort of defamation and give an example.
This is when a statement is communicated to a third party other than the plaintiff. Example
is where a statement is printed, allowing another to read or reading it out to him.
47. It is an available defense for one to allege justification/truth in a defamation matter.
Where does the burden of proof lie for the defense to suffice and why?
The burden of proof is on the defendant to prove that the alleged defamatory statement is
true. This is because the law presumes that the statement is false and so the claimant does
not have to prove falsity.
48. What would amount to a fair comment as a defense in defamation?
The statement must be of opinion as opposed to a statement of fact and the facts must be
correctly stated.
49. Give any two circumstances where a statement is not actionable however defamatory or
malicious it may be.
 Any statement made in the course and with reference to judicial proceedings by any
judge, assessor, party, witness or advocate.
 Any statement made in the parliament by a member during debates or proceedings
of parliament or before a committee of parliament.
50. What are rescue situations?
This is a situation where a person takes it upon himself to rescue another or property form
danger
51. ‘’Under rescue situations, the negligent defendant is liable for the injury of the rescuer as
well as that of the victim. The rights of the rescuer are therefore independent of that of
the victim’ what does this phrase mean and the reason to support your answer.
It means that the success of the rescuer’s claim does not depend on the success of the
victim’s claim. This is because his claim is based on a duty of care owed directly to him by
the tortfeasor and not upon one derived from that owed to the person imperilled.
52. What are negligent words?
These are innocent but negligent statements made by one party and relied on by another to
his or her detriment.
53. Who can successfully bring an action for negligent word or misstatements?
For one to bring an action for negligent words there had to be a contractual or fiduciary
relationship between the parties. For example doctor –patient, lawyer-client, and trustee-
beneficiary.
54. Under what circumstances can a person recover for pure economic loss and which ground
are considered by court to deny those damages?
Compensation for economic lose can be given if such loss arises directly out of a proximate
result of physical loss. The courts would deny those damages on grounds such as no duty of
care being owed in the particular circumstances and the remoteness of damages.
55. What is injury without impact? Which test has been followed by court in case of a cause of
action?
Injury without impact refers to a situation where the plaintiff suffers injury due to the act of
the defendant without any physical or actual bodily contact. For example nervous shock and
mental distress. The test was whether the defendant could reasonably have foreseen that
his conduct would expose the plaintiff to the risk of personal injury.
56. Who can bring a cause of action under injury without impact?
It can either be primary or secondary victim. With primary evidence one suffers as a result of
directly being involved in an accident and is either himself physically injured or put in fear of
injury. As for secondary victim, one must have suffered as consequence of witnessing or
 being informed about an accident .however with secondary victim the class of potential
plaintiffs is largely limited to those who are close relatives.
57. In cases of injury without impact how has the burden of proof?
The burden of proof is on the plaintiff to show that the indirect injury he suffered was a
result of the defendant’s negligent acts
58. It is a general rule that there is no duty on a person to take action in order to prevent harm
befalling others. However just like every general rule there are exceptions to it. What are
they?
 Where there is an under taking by the defendant
 Where there is a special relationship between the defendant and the claimant
 Where a defendant has control over a third party who causes damage to the
claimant
 Where the defendant has control over land and something likely to be dangerous if
interfered with.
59. The duty of an advocate as regards professionalism has been held to be five, what are
these duties that he has to fulfil?
 A duty to his litigant client.
 A duty to his opponent.
 A duty to court.
 A duty to himself
 A duty to the state
60. It is a famous s position of law that “he who alleges must prove” as for liability of an
advocate, in negligence what must one establish?
In establishing that the profession al has been negligent you must be able to establish that
 The advocate owed a duty of care to the client.
 That the advocate was in breach of a duty
 The client suffered damage as a result
61. What is the general rule for the award of damages?
The general rule is that the damages to which the claimant is entitled from the defendant in
respect of a wrongful act must be recovered once and for all.
62. Mention any four types of damages that may be awarded by court
 Exemplary damages
 General damages
 Norminal damages
 Special damages
63. What are special damages?
These are damages that are particularly requested for and must be proved
64. What is meant by the term remoteness of damages?
It means that an injured party or one who has suffered loss should only recover for the exact
consequence that resulted from the defendant’s breach.
65. What is the difference between damage and damages?
Damage means the actual injury or loss caused by someone as a result of either his act or
omissions while damages are the pecuniary compensation one is entitled to as a result of
the injury or loss caused to them by the act or omission of another party.
66. What is meant by the term restituo integrum as a major principle that court follows while
awarding damages?
It means putting back the party who has been injured in the same position as he would have
been if he had not sustained the wrong for which he is now claiming compensation.
67. In awarding damages, court may look at the issue of mitigation of damages .what is meant
by mitigation of damages?
Mitigation of damages means reducing on the amount of damages in form money that the
defendant should pay, this is by giving reasons like contributory negligence.
68. Mention one example where court may refuse to grant damages to an injured party who
has proved injury.
Where an injunction is granted, damages shall not be awarded.
69. Sometimes parties may stipulate in their agreement the amount of damages to be paid in
case of breach; what are those damages called?
They are liquidated damages however the amount agreed by the parties has to be a genuine
pre-estimate of the probable loss that could occur.
70. Under what circumstances will the defence of contributory negligence succeed?
This defence will succeed if court finds out
 That there was fault or negligence on the part of the plaintiff
 That the injury of which the plaintiff complains resulted from the particular risk to
which his own negligence exposed him.
71. What must be proved for a child to be held liable for contributory negligence?
To find that the child is guilty of contributory negligence it must be proved that the child has
failed to show the amount of care reasonably expected from a child of that age.
72. What must be put across for one to succeed with the defence of voluntary assumption of
risk?
The defendant must show;
 That the plaintiff freely and voluntarily consented to the risk
 The consent was based on full knowledge of the nature and extent of the risk
73. What is meant by inevitable accident?
Inevitable accident is that accident which the party charged could not possibly prevent by
the exercise of ordinary care, caution and skill.
74. Under which law may a person bring death as a cause of action?
Under section 5 of the Law Reform (Miscellaneous provisions) Act
75. While shopping in the Danger way supermarket late in the afternoon, Claude Musa slipped
on grapes on the floor in the produce department. He broke his leg and hit his head
heavily on a metal rail. On that day the store was short of staff and a produce attendant
was assigned to help with that area. Other customers are willing to testify that the floor in
the produce area was increasingly messy throughout the day. On what principle would the
manager be liable for the produce attendants acts?
Under the principle of vicarious liability
76. What is the justification for vicarious liability?
 The rationale for the employer assuming liability is based on the assumption that he who
chooses his servants and profits from their services and he appropriates the surplus value
thus the employee should be indemnified in the event of incurring liability in the course of
employment.
 The master has the means to pay as the master is normally not an individual but a
substantial enterprise.
 The master must have been negligent in employing a negligent servant or failing adequately
to control him and as such the master has set the whole thing in motion
77. Can an employer be liable for the acts of an independent contractor and give reasons for
your answer?
 No an independent contractor is one working for his own benefit therefore an employer
cannot be liable for independent contractor’s acts for he is deemed to be acting on his own.
78. When can an employer be said to be liable for the acts above.
 Torts authorized or ratified by him e.g. where the contractors employed to do an illegal act
both parties will be held liable as joint tortfeasors e.g. dumping waste on one’s land with
authorization by the employer and done by independent contractors.
 Delegation of non-delegation duty owed to the plaintiff by the employer but breached by an
independent contractor e.g. an employer delegating his duty to fence dangerous machinery
for the workers safety and the independent contractor fails to do so leading to the worker’s
injury.
79. What is the meaning of vicarious liability?
It simply means that he who acts through another is deemed to act in person. It is not a tort
but a legal mechanism of apportioning liability it ensures that workers aren’t exploited by
bearing burdens of their employers
80. Briefly discuss the elements constituting vicarious liability.
 Existence of a master/servant relationship. There must be proof of a relationship of
master/servant, evidence of such a relationship is a contract of service.
 In the course of employment; the rule is that a master is vicariously liable for torts of his
servant only if it can be established that the servant in committing the tortuous act did so in
the course of employment as servant of the master, he is responsible for not only what he
does but the way he does it.
 Common interest.’ Should be done in common interest of the employee and the employer.
 Benefit of the employer ; The employer will only be liable where what the employee does is
sufficiently connected with his employer’s business and is not too gross a departure form
the kind of the thing he is employed to do
 Determination of duties; whether the act was done within the duties defined or determined
by the master and how they are discharged.
81. How can one prove a master/servant relationship rendering the employer liable under
vicarious liability?
 control test; this includes the power of deciding the thing to be done, means in
doing it, way it shall be done, time when where it shall be done.
 Integration test; is one employed as part of the business and is his work done as an
integral part of the business
 Parties own classification; how the parties have chosen to characterize their
relationship either a contract of service or for services.
 Entrepreneur test; is the person performing for his own benefit in business of his
own.
 Multiple test. Look at all the surround ding features
82. Briefly discuss the rule in Ryland’s v Fletcher.
The rule is to the effect that a person who for his own purposes brings on his lands and
collects and keeps there anything likely to do damage if it escape this peril and if he must
keep it at his peril and if he doesn’t do so is prima facie answerable for all the damage which
is the natural consequence of its escape The case established the principle of strict liability
for loss arising out of escape.
83. What should be established for a case to fall under Ryland’s v Fletcher?
 Bringing on the land; the defendant must have brought on the land for his own purpose
something which he has accumulated there.
 Non natural user; it must be some special use bringing with it increased danger to others
and must not merely be an ordinary use of the land or such a use as is proper for the general
benefit of the community.
 Thing likely to do mischief; the thing must be potentially or actually dangerous and capable
of entering into the neighboring land.
 Escape; there must be escape from a place where the defendant has occupation or control
over the land to a place which is outside his occupation or control.
84. What are the defences against the rule in Ryland’s v Fletcher.
 Statutory authority; normally public bodies are exempted from liability unless it is shown
that they acted negligently.
 Act of a stranger or third party which could be reasonably anticipated.
 Volenti non fit injuria; the plaintiff has knowingly and voluntarily consented to the bringing
of the thing on the defendants land.
 Contributory negligence; the plaintiff saw the danger and may be said to have courted it.
 Act of God; these are operations of natural force, free from human intervention rather than
phenomena. If escape arises out of natural causes which no human foresight could have
provide for that it is said to be an act of God.
85. What are the ingredients for cattle trespass?
 There must be cattle
 The defendant need not have intended trespass and need not have acted negligently
 There need not be damage suffered.
86. What is the general rule for liability for straying animals?
A general proposition is that the owner of animals is under no liability to prevent the animals
from straying even though the straying may take the form of leaping over and through
hedges.
87. What are the exceptions of the above rule?
(a) It doesn’t apply to wild animals or to domestic animals which show peculiar
characteristics.
(b) Doesn’t apply if animals were brought onto the high way
(c) Common law which relieves occupiers of land adjourning the high way from fencing
doesn’t apply to cities, city dwellers should be obliged to fence.
(d) Whether there are special circumstances such as peculiar topography
(e) Where the animal was engaged in an activity which could only be caused under a
high degree of human control.
88. What is liability under the scienter rule.
When an animal of harmless species betrays its own kind by perpetrating damage, its keeper
will not be held strictly liable unless actually aware of its dangerous disposition. A person
who keeps an animal with knowledge of its tendency to do harm is strictly liable for damage
if it escapes he is under a duty to confine or control it so that it doesn’t do injury to others.
89. What are the ingredients under the scienter rule.
(a) No escape needs to have occurred
(b) It is based on the possession of the animal of vicious characters
(c) The defendant must be aware of the animal’s vicious character
(d) It must have injured another person
90. Write short notes on the following.
Ferae naturea. These are animals which are dangerous by nature, all animals which are not
by nature harmless or haven’t been tamed by man and domesticated are conclusively
 presumed to have such tendencies to do harm so that the scienter rule need not in their
case be proved.
Mansuetea naturea; ordinarily harmless animals, those harmless by their very nature,
character and those shown by long experience to be harmless these are presumed to be
harmless until they have manifested a savage or viscous propensity proof of such
manifestation is proof of scienter.
91. When can one be liable under the scienter rule.
When an animal ferae naturea causes injury liability on the part of the keeper thereof
automatically arises but when the animal is harmless then the plaintiff must prove scienter.
92. Who of the two is the proper defendant under the scienter rule ‘the owner or the
possessor.’ Of the animal.
Liability in scienter is by possession rather than ownership in the case of walker v hallthe
trainer of the horse which he knew was accustomed to bite was held liable simply because
he had control over the animal.
93. What exactly amounts to a mischievous propensity on the part of mansueturea animals?
 The animal had previously committed or attempted to commit an act showing that
particular trait of viciousness complained of.
 The defendant knew of the act or attempt.
94. Briefly state how one can be held liable for fire escape.
Uganda Motors limited v Wavah holdings, it was stated that a man is liable for damage done
by fire originating on his property where because of negligence and where no explanation
could be given on what caused the fire. Therefore one can be liable where there is
negligence and can offer no explanation for the cause of the fire.
95. What do you understand by non natural use of land in strict liability?
This is when something special is brought on land bringing with it increased danger to others
and something not in the ordinary use of land and not for the benefit of the community.
96. What is nuisance?
In tort law a type of wrong arising form the unreasonable improper indecent or unlawful use
of property to the annoyance or damage of another or the general public.
97. What is public nuisance?
This is interference with the common right of the general public or an indefinite number of
persons an unreasonable interference with the health, safety, peace or comfort of the
community interferes with the public as a class not merely one person e.g. shooting
fireworks in the streets, storing explosives, practicing medicine without a licence, harbouring
a viscous dog, house of prostitution
98. Define private nuisance and give examples of what would constitute private nuisance.
An interference with the persons inters t in the use and enjoyment of his land. For instance
vibration or blasting that damages a house, destruction of crops, raising of water table or
pollution of the soil a stream or an underground water system. Examples of nuisances
interfering with comfort, convenience or health of an occupant are foul odors, noxious
gases, smoke, dust, loud noises, excessive light, and high temperatures.
The law recognizes that land owners or those in rightful possession of land have the right to
the unimpaired condition of the property and to reasonable comfort and convenience in its
occupation.
99. What are the defenses to nuisance and its remedies?
 Statutory authority; normally public bodies are exempted from liability unless it is shown
that they acted negligently.
 Act of a stranger or third party which could be reasonably anticipated.
 Volenti non fit injuria; the plaintiff has knowingly and voluntarily consented to the bringing
of the thing on the defendants land.
 Contributory negligence; the plaintiff saw the danger and may be said to have courted it.
Remedies
a. Injunction
b. Damages

100. Briefly discuss Occupiers Liability.

The liability of an occupier of land or premises to persons on the land for the condition of
premises and things done there What should an intending plaintiff prove in a claim of
negligence?

 Duty of care
 Breach of the duty of care
 Suffered damages

101. Briefly state the difference between vicarious liability and voluntary assumption of
risk.
 Vicarious liability applies where there is an employment relationship
 Under vicarious liability an individual (employer) is liable for the acts and omissions of
another (employee)
 Voluntary assumption of risk only applies where a person has consented to doing or
participating in a dangerous activity.
 Under voluntary assumption of risk a person has no claim whatsoever except under labour
law.
102. The terms causation and remoteness are usually referred to in recovery of
damages, what is the justification?

Causation is concerned with establishing a causal link between the defendant’s negligence and
the claimant’s damage while remoteness of damage is used to set the limits of legal
responsibility thus damages are unrecoverable where the rate of responsibility is minimal.

103. Outline 2 instances under which one may bring a claim under nervous shock.
 Primary victim- a person who is directly and physically involved in the transaction or
accident.
 Secondary victim- a person who only suffers psychiatric injury after witnessing another
person being injured.
104. As per the decision in DERRY V PEEK, how can a person be held liable for negligent
misstatements or words?
 If the party made negligent statements willfully and knowingly
 Skilled in that profession
 Another party acted on them to his detriment
105. Why is it difficult to recover under a claim of pure economic loss?
 There is no damage to property
 The loss is too remote
 Economic loss is likely to be very extensive and limitless.
 Unlike physical loss it can be distributed among many sufferers.
106. What is the significance of the principle of foreseeability in all cases of negligence?
 To limit the scope of negligence
  To take precaution where necessary
107. The principle of “Res Ipsa Loquitor” has dispensed the rule in civil proceedings as
per section 101 of the Evidence Act, is it true?
Under section 101 is expressly stated that he who alleges must prove however the principle
of “Res Ipsa Loquitor “ shifts the burden of proof from the plaintiff to the defendant.
108. A while driving to Kampala knocked down B, C a relative of B while watching NTV
Tonight saw the incident and suffered nervous shock. D came to rescue B and in the
process he was injured. What are the available remedies to C and D.
 C may claim under Nervous shock
 D's claim falls under rescue situations
109. As per the rule in Donoghue V Stevenson, the claimant only needs to prove that a
duty of care was owed to him, the duty was breached and he suffered damage as a result
of that caveat. What is the significance of the rule in DONOGHUE V STEVENSON?

It established the procedure on how a claimant can succeed by proving that there was a duty of
care, it was breached and suffered damage.

110. Residents of Bugujju say that they no longer sleep due to noise emerging from a
Disco club and also in the vicinity people were hospitalized with symptoms of vomiting
and bleeding following a leakage of fumes from a container silk events brought in the
area. Outline the available remedies?
 Claim of injunction under private nuisance (loud music)
 Damages under a claim of public nuisance
111. What is the distinguishing factor between public and private nuisance?
Private nuisance is simply a violation of one’s use of quiet enjoyment of land while public
nuisance is unreasonable interference with the public’s right to property.
112. Outline the elements of private nuisance
 Continuous overt act
 The act emanates from the defendant’s property
 Interference is substantial and unreasonable
113. Briefly explain the first bite rule under strict liability?
The animal had previously committed or attempted to commit an act showing that
particular trait of viciousness complained of. The defendant knew of the act or attempt.
 10. CIVIL PROCEDURE SUMMARY.
Civil procedure can be defined to consist of the rules by which courts conduct civil trials.

ORGANIZATION AND HIERARCHY OF COURTS IN UGANDA

All courts derive their power from the constitution-Art.129

Article 129 provides for establishment of courts of judicature which consist of:

a) The supreme court of Uganda

b) The court of Appeal/ constitutional court
c) The High court
d) Such subordinate courts as parliament may by law prescribe

Under the subordinate category are:

1. The magistrate courts established under section 3 and 4 of the Magistrates

2. Courts Act Cap 16 which include, Chief Magistrate, Magistrate Grade I, Magistrate Grade II
3. The local council courts established by the local council courts Act 13 of 2006
4. The court Martial and tribunals fall outside the normal hierarchy of courts

JURISDICTION

Art 29(2) establishes the Supreme Court, the court of appeal and the high court as courts of record
The High Court has unlimited jurisdiction in civil matters except in constitutional matters where
Art.137 the constitutional court is established specifically to address questions as to interpretation
of the constitution.

The Magistrate courts (Amendment) Act 2007 prescribes the pecuniary Jurisdiction of magistrate’s
courts:

 The chief magistrate handles civil matters whose jurisdiction does not exceed 50 million and
have unlimited jurisdiction in disputes relating to conversion, damage to property or
trespass and maters governed by civil customary law.
 20 million for Grade 1 and have unlimited jurisdiction to matters governed by civil customary
law
 500,000 for grade 2

Effect of Lack of Jurisdiction

If a court has no jurisdiction its decisions are mere nullities, and not only voidable but they are also
void and have no effect

Inherent jurisdiction of court are the powers power evoked by court to ensure that justice prevails
or to prevent abuse of the process of the court.

COMMENCEMENT OF PROCEEDINGS

Section 19 of the Civil Procedure Act provides that every suit shall be instituted in a manner
prescribed by the rules. High Court suits may be commenced by any of the following originating
process:

 Ordinary suit/plaint
 Originating Summons
  Notice of Motion
 Petition
 Chamber Summons

Ordinary Suit/Plaint

This is the usual method of commencement where there is a substantial dispute as to the facts and
the parties institute the proceedings by filing a plaint.

Every plaint shall contain the following particulars;

 the name of the courting in which the suit is brought

 the name, description and place of residence of the plaintiff and an address for service
 the name, description and place of residence of the defendant
 if the plaintiff or defendant is a minor or person of unsound mind, a statement to that effect
 the facts constituting a cause of action and when it arose
 the facts showing that the court has jurisdiction
 the relief which the plaintiff claims
 where the plaintiff allowed a setoff or relinquished a portion of his claim, the amount so
allowed or relinquished
 a statement of the value of the subject matter of the suit so far as the case admits

Originating Summons

Under this procedure, a string of questions are usually presented to court for determination. This is
provided for under O.37.

The main advantage of originating summons is that they are speedier than action by way of plaint.
Some of the advantanges include;-

1. There are no pleadings

2. There are usually no witnesses
3. Evidence is given on affidavit
4. Normally there are no interlocutory applications such as discovery

Notice of Motion/ Chamber Summons

This procedure relates to interlocutory applications.

Applications made by notice of motion include:

 Application for judicial review

 Application for habeas corpus
 For redress of breach of fundamental Human Rights under the Constitution

The general rule is that where a statute or legislation provides for an application to be made to court
but does not specify the form in which it is to be made and the rules do not expressly provide for any
special procedure, the application may usually be made by notice of motion. This provided under
O.52 r1.

The major distinction between notice of motion and chamber summons is:

1. Chamber summons is issued by the authority of court but notice of motion is usually brought
by a party seeking some form of relief or remedy from court.
 2. Chamber summons are heard in chambers while notice of motion will usually be heard in
open court

Petition

This is the method by which proceedings are commenced as prescribed by statute, statutory
instrument or rules. This provided for under O.r3

Examples of the most common types of petitions include:

 Those related to company matters

 Matrimonial proceedings
 Constitutional matters
 Election challenges

FILING OF COURT PROCESS

In every High Court jurisdiction or magisterial area, there must be a registry in which the person who
wishes to file a case can file the relevant court papers.

Court Registry

This is the administrative centre for the control of all documents and information required by court
for the operation of its documents and information required by court for the operation of its work.
The main duties of the registry staff are as follows;

 Receive all documents

 Maintain records
 Dispatch and avail information whenever it is needed
 Maintain the record through the file cycle of the case
 Prepare under the direction of the registrar cause lists for the session
 Serve summons and notices to litigants
 Monitor the movement of the files allocated to a judge or magistrate

The filing in the High Court is not so much different from the filing in the Magistrate court. Under
O.48 r1 it provides that every suit in the High Court may be instituted at the central office of that
court.

The High Court has five registries where cases are filed depending on the subject matter, these are:

 Commercial Division Registry

 Civil Division Registry
 Family Division Registry
 Land Division Registry
 Criminal Registry

Fixing cases for hearing

The practice is that parties to the suit or their advocates should apply dates for hearing their case.
This is usually done by taking hearing notices and asking for a date from court

Alternatively, any party may write to the Registrar (Deputy) requesting for a date, which is later
presented to a judge.

Payment of court fees

Every document filed in court in form of pleading attracts a payment of fees. The amount payable as
court fee is determined from the value of the subject matter in case of a plaint and for other
documents a fixed fee is charged. If fee are not paid such documents are deemed not to have been
filed.

ISSUE AND SERVICE OF SUMMONS

Under O.5 r1 (1), it is provided that when a suit has been duly instituted, summons may be issued to
the defendant: ordering him to file a defence, ordering him to answer the claim on the day to be
there in specified

O.8 r1 (2) provides that when one is served with summons, he or she must file a defence within
fifteen days

The purpose of summons is to notify the defendant that a suit has been filed, to require him or her
to file a defence and also notify the defendant of the consequences of failure to do so.

O.5 r2, the summons must be accompanied by a copy of the plaint, a summary of evidence, list of
witnesses, list of documents and list of authorities.

Service of Summons

It is the responsibility of each party to prepare, produce and serve his/her pleadings upon the
opposite party

O.5 r10 provides for the fundamental rule of service of summons which is that, service of summons
must be personal

In ordinary pleadings, a party who is dragged to court is issued with summons which an official order
is requiring a person to attend court either to answer to a charge or to give evidence

Mode of Service of Summons

O.5 r8 deals with the mode of service, it is by tendering or delivering a duplicate duly signed by a
judge or appointed officer and sealed by the court to the defendant.

High Court summons are usually signed by a Deputy Registrar or Registrar and in Magistrates courts,
by the magistrate.

O.5 r7 (1) deals with transmission of summons for service. The summons are either delivered to a
person authorized by court to serve summons who is called a process server, or to an advocate or
advocate’s clerk or by post.

O.5 r14, where duplicate of the summons is directly delivered and tendered to the defendant
personally or to an agent or other person on his or her behalf, they are required to endorse an
acknowledgment of service on the original summons

O.5 r16 provides for the affidavit of service, that is, after the process server has served the
summons, he or she is required to annex the affidavit of service.

Time of Service

Service of summons and court process must comply with the time and day of service.
This is provided for under O. 51 r9, no service of pleadings, notice or summons, other than summons
to file a defence can be effected on a Sunday. The same is prohibited on days like public holidays
under O.51 r2.

O.51 r9 (2), provides that service effected after the hour of six in the afternoon on any weekday
except Saturday which is before the hour of one shall be deemed to have been effected on the
following day, in respect to Saturday, it shall be Monday.

O.5 r16 provides for an affidavit of service that is, whenever summons has been served, the person
who effected service must swear an affidavit of service.

Service upon corporations

The relevant provision under this is O.29.

What is meant by corporations is any legal entity not being a natural person and being a creature of
statute or incorporation under the Companies Act.

Service on a corporation may be in the following ways:

 On the secretary, or on any director or other principal office of the corporation

 By leaving it or sending it by post addressed to the corporation

Service upon a partnership

A partnership is a special legal creature, service upon it is provided for under O.30 r3, which provides
for the different ways it can be effected:

a) upon any one or more of the partners

b) at the principal place at which the partnership business is carried on within Uganda upon
any person having, at the time of service, the control or management of the partnership
business
c) as court may order

Under O.30 r3 (2), it provides that service shall be deemed good service upon the firm so sued
whether all or any of the partners are within or without Uganda.

An exception to this is where the partnership has been dissolved to the knowledge of the plaintiff
before the institution of the suit, in this case service shall be served upon every person in Uganda
whom it is sought to make liable

Service upon counsel

Under O.3 r4, provides that any process served on an advocate shall be presumed to be duly
communicated and made known to the party whom the advocate represents

Such service shall, unless the court otherwise directs be as effectual for all purposes as if the process
had been given to or served on the party in person.

Service on Government

All documents required to be served on the Government for purpose of or in connection with civil
proceedings shall be served on the Attorney General.

(Article 250(2) of the Constitution, Section 11 of Government Proceedings Act)

Attorney General’s Chambers and shall not be complete until there is acknowledgment of service.

(Rule 5 Civil Procedure (Government Proceedings) Rules

The time that is prescribed for the Government to file a defence is thirty days

(Rule 11 Civil Procedure (Government Proceedings) Rules

Service on a Member of Parliament can be effected in the same manner an ordinary person is served
in civil matters as opposed to criminal matters

Substituted Service

The general rule is that where the court is satisfied for any reason that summons cannot be served
as the ordinary way, the court shall order substituted service in a manner it deems fit.

Such service can be in a manner as follows;

 advertisement in newspapers
 affixing a copy in a conspicuous place in court or part of his house or residence

The O.5 r18 provides for substituted service as follows;

1. Where court is satisfied that the summons cannot be served in the ordinary way
2. Substituted service shall be as effectual as if it had been made on the defendant personally
3. Where court makes an order for substituted service, it shall fix time for the appearance of
the defendant as the case may require

An application for substituted service is normally made by summons in chambers ex parte.

(O.5 r.32

The affidavit support of such application must include the following;

a. state the date when the summons was issued,

b. the occasion on which personal service was attempted
c. the facts upon which inference of evasion of service are based
d. the believed address of the defendant
e. the fact that substituted service is the best method

After an order is made and complied with, service is deemed to be effective as if it were done
personally on the defendant. (O.5 r18 (2))

Service on a Special Category of Defendants

This includes a number of categories as discussed below

Service on defendants in prison

O.5 r19 provides that in case of such defendant, service shall be delivered or sent by post or
otherwise to the officer in charge of the prison for service on the defendant

Service on pubic officer and soldier

O.5 r20 (1) provides for the public officers whose summons shall be sent to the head of office in
which the defendant is employed, together with copy to be retained by the defendant
O.5 r20 (2) where the defendant is a soldier, the court shall send the summons to his commanding
officer, together with a copy to be retained by the defendant

The duty of the person to whom the summons is sent under these two rules is set out under O.5 r2;

a. The person shall be bound to serve it if possible and return it under his signature
with written acknowledgement of the defendant
b. Where from any cause service is impossible, the summons shall be returned to the
court with a full statement of the cause and the steps taken to procure service.

Service of summons outside the jurisdiction

This is provided for under O.5 r22 which provides that such service may be allowed whenever:

I. the whole subject matter of the suit is immovable property situated within the jurisdiction
II. any act, deed, will, contract, obligation or liability affecting immovable property situate
within the jurisdiction is sought to be construed
III. any relief is sought against any person domiciled or ordinarily resident within the jurisdiction
IV. suit is founded on any breach within the jurisdiction
V. any injunction is sought to be done within the jurisdiction
VI. the suit is for the administration of the personal estate of an deceased person who at the
time of his death was domiciled within the jurisdiction
VII. any person out of the jurisdiction is a necessary or proper party to a suit
VIII. the suit is founded on a tort committed within the jurisdiction

Expiry of Summons

Where summons are issued by court and the person who is supposed to serve fails to serve, within a
specified date, such summons shall expire.

Summons once issued by court are valid for 21 days and they must be returned to court for renewal
through an application to extend the time. (O.5 r1 (2))

There must be a good reason for the delay in service before court can grant renewal for such
summons.

PARTIES TO A SUIT

A party to a suit may be a plaintiff, defendant, applicant or appellant, respondent among others
depending on the type of proceedings.

Normally a party is a person who on the record of the court has commenced the proceedings or TO
has been served with the summons or any other such application or order of court

Capacity to sue or be sued

The determination of whether a person is capable of suing or be sued is governed by the substantive
law.

While most natural persons may sue or be sued, limitation exists with regard to certain types of
natural persons that may not have the capacity, for example:

 Children
 Incompetent persons
 Aliens
  Convicts

Suits by Minors

These are provided for under O.32

Minors cannot bring suits of their own accord until they attain age of majority which is 18 or 21
years depending on the jurisdiction

In such circumstances a minor sues by his or her next friend or defends by his or her guardian ad
litem. (O.32 r1)

A next friend is an officer of the court appointed to look after the interests of an infant in the
conduct of proceedings

A person appointed as next friend may be personally liable for costs if they are awarded against the
plaintiff although he has the right of indemnity against the minor.

However, a guardian ad litem is personally liable for costs only where he has been guilty of
negligence or misconduct

O.32 r8 provides that a next friend cannot retire without consent of the court and it is immaterial
that all parties to the action have given their consent upon which they give security for costs
incurred during their term of office.

O.32 r12 provides for the procedure to be followed by a minor plaintiff or applicant on attaining
majority age.

Mentally incompetent persons

They include, idiots and lunatics in addition there is a general term of madness which denoted
incapacity of the mind that is complete and permanent and all these are normally compounded
under persons of ‘unsound mind’.

This is provided for under O.32 r15 and just like minors, they may commence their actions through a
next friend or defend through a guardian ad litem.

Where a mentally incompetent person without a representative commences proceedings, an

application should be made by a defendant to stay the proceedings until a next friend is appointed

Companies and Statutory persons as parties

This is generally governed by O.29

Any company incorporated by an Act of parliament may sue or be sued in its corporate name

It is usually advisable that before institution of an action involving a company, one must ascertain
from the Registrar of companies or from the Act of incorporation the proper and correct name of
the company

Where a company is in liquidation or in receivership, the liquidator/receiver may sue in the name of
the company.

A corporation which has ceased to have any jurstic existence cannot sue or be sued

Government
All civil proceedings by the state are instituted and prosecuted in accordance with the rules of the
respective court and the Government Proceedings Act.

Any person had the right to sue the Government subject to the Government Proceedings Act

Section 10 of the Government Proceedings Act provides that civil proceedings against the
Government shall be instituted by or against the Attorney General

Representative Parties

These are provided for under O.31

Deceased Persons

A deceased person cannot commence or defend an action, in the case of an estate of a deceased
person, administrators or executors become the proper parties.

O.31 r1 provides that the rules of court provide that the administrators or executors of the estate of
a deceased person may sue or be sued on behalf of the estate without joining any of the
beneficiaries

The administrator of an estate of a decease person is appointed by grant of letters of administration

while the executor is named in a will and is appointed by court through grant of probate

O.31 r2 provides that where there is more than one administrator, all must be made parties.

Trustees

A trustee is a person engaged in administrative duties with regard to property entrusted to him for
the benefit of others.

Trustees may be individuals or corporations who have been given power so to act and this may be
under a will.

Where a person is appointed in a dual capacity of an executor and trustee, the estate of the
deceased is vested in the executor first and after the fulfilment of his duties as an executor, he
thereafter becomes a trustee.

Unincorporated Associations

An association consists of a number of persons voluntarily united together by a common interest in

order to promote certain objectives for their mutual benefit.

Unincorporated associations may include the following;

I. clubs
II. trade unions
III. employer associations/ general associations

An association or club that has not obtained corporate or quasi corporate status by statute has no
legal existence apart from its members, it is not a legal entity, nor is it an association of persons
carrying on business with a common view of making profits

An unincorporated association is not a legal entity capable of suing or being sued,any proceeding
against it is a nullity and not mere irregularity which may be waived by filing the defence.

Partnerships
O.30 r1 provides that partnerships may sue or be sued in the firm’s name or alternatively in the
names of the individual partners.

Whenever there is doubt about the membership of the partnership, it is then advisable to issue
court process against such firm in its firm name.

With leave of court, the judgment of the court is generally enforceable against any other partner
within the jurisdiction but a foreign partner may have to be sued individually

Joinder and Substitution of Parties

This is provided for under O.1 r1

Subject to the right of the court to order a separate trial for other procedures, the rules of court
provide the following grounds for voluntary or mandatory joinder;

a. Relief in respect of the same or a series of transactions

b. Common question of fact or law
c. Leave of court obtained
d. Joint claims
e. Joint and several liability
f. Presence of person promotes administration of justice
g. Person’s presence is necessary
h. Doubt against when relief is sought

A person can be joined as a party in the proceedings by:

 The defendant after proceeding with leave of court

 By the plaintiff after proceeding with leave of court
 By court on an application of any party or by intervener, or by court on its own motion

Joinder of defendants

The courts have laid the following general principles with regard to joinder of persons as defendants:

Interest for the defendant in the relief, the defendant may, but must not be interested in all the
relief sought

A dissolved company, a company that has ceased to exist cannot be sued asa defendant, but a
company in liquidation or receivership can be sued

Joinder of Interveners

An intervener is one who on his own application and with leave of court is added to an action
pending between others.

When the intervener added may have the status of a party to an action as a friend of court

An intervener is normally referred to as an amicus curie or a friend of court who is a person who
calls to the attention of court some decision of law but who does not become party to the action

THIRD PARTY PROCEEDINGS

Under O.1 r14, third party proceedings is an action by the defendant for contribution or indemnity
against a third person or co-defendant
The objects of third party procedure include;

a. To prevent multiplicity of actions

b. To prevent the same issue from being heard twice with a possibility of different
results
c. To have the issue between the defendant and third party resolved in the original
action between the defendant and the third party
d. To have the issue between the defendant and third party decided as soon as
possible after the decision in the original action

Nature of Third Party Proceedings

This order applies only to cases where the defendant claims to be entitled to contribution or
indemnity against a third party

A third party proceeding in effect is an independent action with a 3rd party becoming a defendant.

Where the main action is settled, a third party proceeding may still continue

Under the rules of court, a third party is not strictly a defendant against the plaintiff in the original
suit, but the rules generally provide that a third party may dispute the liability of the defendant on
the original action to the plaintiff

Scope of Third Party Proceedings

A claim for contribution or indemnity may arise out of the following circumstances:

a. An express or implied contract

b) ii. From a relationship of the parties
c) iii. Where the right to indemnity exists
d) iv. When the relationship between the parties is such that either in law or in equity, there is
an obligation upon one party to indemnify the other

The right to indemnity need not be for the claim in the main action, it may be for any separate or
severable part in the plaintiff’s claim

Limitation on Third Party Proceedings

These may include the following;

1) Factors in the original suit of 3rd party proceedings must be related

2) One cannot attach a 3rd party claim for contribution or indemnity on to an independent or
personal claim that has nothing to do with the original action.

3) Similar claims, there need not be a similarity in the form of action of the main action and third
party

4) When an amount of claim is not ascertained

5) Damage in third party claim need not be equivalent to the min action

6) Cause of action against a third part, there must be a common question between the two actions.

7) Establishing of liability of parties, the defendant liability to the plaintiff in the main action should
be in such a way to be binding upon the third party
CAUSE OF ACTION

According to O 7, r1, a plaint must show a cause of action

In Al Hajj Nasser Ntege Sebagala v AG, a cause of action was defined as every fact which if traversed
would be necessary for the plaintiff to prove in order o to support the right judgment of court

Under O6,r30 the court may strike out any pleading that does not disclose a cause of action

Under O7, r11 the plaint shall be rejected if it not disclose a cause of action

According to the case of Auto Garage v Motokov (1971) EA 341, the are 3 essentials to sustain a
cause of action;

i. That the plaintiff enjoyed the right

ii. that the right has been violated
iii. that the defendant is liable

In determining whether a party discloses a plaint discloses a cause of action, court must look at the
plaint and its annextures and nowhere else. See Mikidad Kawesa v AG(1973) ULR 121

Under O2, r 4 CPR, a plaintiff may unite in the same suit several causes of action against the same
defendant or the same defendants jointly; and any plaintiffs having causes of action in which they
are jointly interested against the same defendant may jointly unite those causes of action in the
same suit.

Where after consolidation of suits the value exceeds the jurisdiction of the court, such court should
not proceed with the trial. See Kiramukutesa v Sebugwawo(1986)HCB1

Principles of Joinder of causes of action

a. Where there are several causes of action, the court may order separate trials inrespect of
separate trials in respect of certain claims or order that the trial judge should determine
which issues are to be tried by the judge
b. The plaintiff has the option of determining joinder
c. Joinder should not be permitted if the actions cannot be disposed off conveniently in one
action or their joinder e be considered too oppressive

Different plaintiffs may have different causes of action against the same defendant

Different causes of action may arise out of different causes of action may arise out of the same fact
that a party may sue or be sued in different capacities

The trend of modern jurisprudence is to have all issues between parties joined in one action to
diminish the cost of litigation

PLEADINGS

Section 2 of the Civil Procedure Act defines pleadings as, “any petition or summons, and also
includes the statements in writing of the claim or demand of any plaintiff, and of the defendant of
any defendant to them, and the reply of the plaintiff to any defence or counter claim of a defence”

The usual pleadings in action include the following:

 Statement of claim
 A defence
  A reply to the defence

The plaintiff naturally begins with a plaint presented to court laying his or her claim on the plaint and
the defendant put in his of her defence an answer

Pleadings should be conducted so as to evolve clearly defined issues, definite position of law and
fact asserted by one party and denied by the other but which both agree to be the points on which
they wish to have court decide in the suit

The advantages of exchanging pleadings are as follow:

1) The parties get to know what exactly is in dispute

2) Save expenses of procuring evidence
3) Mode trial may be determined from the pleadings
4) Pleadings help in the financial determination of the issues

The law compels each party to give his or her opponent a sufficient outline of the case

After the plaint, each party must do more than state his or her case but must deal with what is
presented by the opponent

A party who wants to contest the opponent’s case must deal with the other party’s case in three
ways:

1. He or she can deny the whole or some of the essential part of the facts
2. He or she may confess and avoid
3. A demurrer, this is the pleading of a point of law

The cardinal rule of pleadings is contained in O.6 r1 (1), that is every pleading shall contain a brief
statement of the material facts on which the party pleading relies

There are two essentials of pleadings, that is:

1. Pleadings should contain facts not law

2. A party must only prove the material facts

The party must state his or her case, the plaintiff is not entitled to relief not pleaded in the pleadings
and not proved at the trial

Particulars in Pleadings

The necessity for particulars is due to the need to have precise and concise pleadings

Particulars help to prevent surprise at the trial by informing the other party of the nature of the case
he or she is likely to meet and defend

The requirement for particulars of pleadings is set out under O.6 r3

Further and Better Particulars

These are provided for under O.6 r4

This occurs where the other party feels that the opposite part’s pleadings lack the particulars
required.

In such a situation, procedural law provides for methods of seeking clarity from thatparty.
This can be done through seeking further and better particulars, discovery of documents or the
administration of interrogatories

Since a party cannot amend the other party’s pleadings, he or she can ask for an alteration or
clarification in the other party’s pleadings

Initially the unsatisfied party writes to the other requesting him to furnish him with material facts,
failure to do so, the party may apply to court for an order requesting the opposite party to furnish
further and better particulars

Departure from Proceedings

O.6 r7 provides that, no pleading shall raise any new ground of claim or contain any allegation of
facts inconsistent with the previous pleadings of the party.

The rationale is to prevent surprise at trial

However, there are exceptions, that is, pleadings that are petitions or applications are exempted,
and also a pleading can depart by way of amendment

Amendment of Pleadings

A party may find that his or her pleadings are not clear and may in such a case move court by way of
amendment

Sometimes a need for amendment may arise from the other party adducing a new issue

The law provides for;

1) Amendment with leave of court

2) Amendment without leave of court

Amendment with leave of court

O.6 r19, provides that, the court may at any stage of the proceedings, allows either party to alter or
amend his or her pleadings

The pleadings may be amended in a manner and on such terms as may be just

The amendments shall be made as may be necessary for the purpose of determining the real
questions in controversy between the parties

Amendment without leave of court

The law allows both the plaintiff and the defendant to amend his or her pleadings without leave of
court

O.6 r20 provides for the amendment without leave of court

O.6 r21 looks at amendment in case of a defendant who has a set up or counter claim

Apart from the cases specified as instances in which the parties can amend without leave, in all
other cases, the parties must seek permission of the court

After the lapse of time within which pleadings can be amended, a party’s pleadings will be deemed
to be closed and documents filed thereafter will be of no legal effect of consequences

Types of pleadings
LIMITATION OF ACTIONS

A limitation period is a time limit during which actions are to be brought, and thereafter a potential
plaintiff is barred from and may no long bring his of her action.

Basic principles of limitation

1. Cause of action
2. Computation of time. The determination of when time begins to run depends upon the date
on which the cause of action arose, Under S.30 of interpretation Act. Sundays and holidays
are excluded, For time to run there must be competent parties

• The effect of an action which is statute barred is that once an action becomes statute barred,
subsequent developments can’t revive it.

Running of time and commencement of proceedings

1. Once an action has accrued, time begins to run provided there are competent parties
2. A general rule, courts will disregard parts of the day in calculating the limitation period

Defences to limitation

Under O 7, R6 CPR, where the suit is instituted after the expiration of the limitation time, the plaint
shall show grounds upon which exemption from the law is claimed

1. Disability. Under S. 21 Limitation Act Under S.1(3) CPA, one is deemed to be under disability
when he or she is an infant or is unsound mind. A plaintiff who suffers from disability sues
through a next friend. O 32, r2. A defendant under disability defends his or her suit through
guardian ad litem. O32, r3 CPR
2. Acknowledgement by the defendant. This under S. 22 Limitation Act
3. Part payment. It is provided for under S.22 Limitation Act. See Scilendra Overseas ltd v. the
government of Sri Lanka(1977)1K.L.R
4. Fraud. S 25 of the Limitation Act.
5. Concealment. When the defendant acted dishonestly an unconscionably. See Shaw v
Shaw(1954)2QB 429
6. Mistake
7. Negotiations. This does not stop time from running.

Limitation against the government and scheduled corporations

1. Under section 3 of the Civil Procedure and Limitation (Misc. Provisions) Act, the limitation
period against the government, a local authority or a scheduled corporation in tort actions is
2 years
2. Limitation period for actions under contract against the government is 3 years.
 11. CIVIL PROCEDURE QUESTIONS AND ANSWERS.
1. Distinguish between substantive and procedural law.
Substantive law defines the liability and rights of legal personnel e.g. land law defines rights of a
free holder, a lessee, customary tenant etc. While procedural law sets the rules which regulate
the way in which civil rights and liabilities of the parties are enforced or defended in the
proceedings before courts of law (steps taken by the parties in litigation from the time of
connecting a suit to the time of enforcement of the judgment).

2. Under what circumstances may a magistrate grade II have unlimited jurisdiction?

In family matters. 3rd schedule to the MCA.

3. What is a suit and what must accompany a suit?

a. S.2 (x) of the CPA cap 71, a suit is a civil proceeding commenced in any manner
prescribed.
b. 0.6 r.1 pleadings shall contain a brief statement of material facts which a party relies
on for a clamor defense as the case may be, 0.7.r.1, the plaint contains the name of
the court which the suit is brought, the name, address for service, description and
place of residence of the Plaintiff, the name, address, description and place of
residence of the Defendant, if the Plaintiff/defendant is minor/unsound mind, a
statement to that effect, the facts constituting a cause of action and when it arise,
facts showing that the court has jurisdiction, the relief which the Plaintiff claims.

4. Under what circumstance may court fail to dismiss a suit where court fees have not been paid?
O.33 pauper suits.

5. In which ways are civil proceedings instituted before court?

a. O.4 r.1 by way of a plaint, Musango v Musango in open court.
b. O.3 r.1 by originating summons in chambers and taken exparte. In Re Hajji Suleyman (1978)
HCB 207
c. O.5 r.1 Kaur V City Auction Mart (1967) E 108 by notice of motion and heard in open court. In
Godferry Lwasa V AC CACA No. 33 of 2004
d. 0.38 r.8 by petition.
e. Art 42 by jurisdiction review.
f. Ordinary letters. LDC V Edward Mugalu (1990-1) KALR 103.
g. 0.36 r.1 summary procedure.

6. What are summons and who may serve summons?

a. Summons are documents issued by courts to a party presenting a plaint or any other
proceedings in court. 0.5 r.1 (1).
b. 0.5, Erukana Kavuma V ST Mehta (1960) EA 305 summons are served by an advocate
or any person for the time being dully authorized by court e.g. advocate’s clerk, court
clerk etc.

7. Who may be served summons where there are two or more defendants?
0.5 r.9, [Link] general insurance CO. Ltd V Elizabeth K. Ntende (1979) HCB 227, services on each
defendant.

8. What happens if the defendant fails or refuses to acknowledge or refuses to sign or endorse on
the original copy of summons?
 0.5 r.14, Okello V Mudukanyi (1993) 1 KALR 110, the process server is required to swear an
affidavit to that effect and file it to court which if court is satisfied that the defendant or his agent
refused to sign or endorse on the summons, may declare the summons to have been dully served.

9. Who may be served with summons in corporations?

O.29 r.2, J.F Ijjala V Corporation Energo project (1988-90) HCB 157, KCC V Apollo corporation
(1985) HCB 77, service of summons is to Board of directors, chairman of the board, general
managers, secretary of the board of the company.

10. Who may be served with summons in a partnership?

O.30 r.3 on any one or more partners, (b) at the principle place at which the partnership (c) as
court may divert In Kadunga V NIC (1977) HCB 243

11. In suits against the government, who may receive the summons on behalf of the government?
Art 250 (2) AG can sue or be sued on behalf of the government, S.11 of the government
proceedings Act, Rule 5 of the civil procedure (government proceedings) Rules, service is on the
AG, or nay officer in Attorney Generals chambers entitled to practice as an advocate.

12. When is the service of summons effective if they are intended to compel a soldier or a public
servant to appear to court?
O.5 r.20 when served on the defendant through the head of department or superior in which the
defendant is employed.

13. At what point in time may pleadings, notices, summons other than summonses on plaints,
orders, rules and other pleadings shall normally be served?
0.5 r.9 (2) service shall be before the hour of six in the afternoon except or Saturdays when it shall
normally be effected after the hour of one in the afternoon. 0.5 r. (2) services effected after the
hour of six on week days shall be considered to have been effected on the following day. And
services effected after one on Saturday is deemed to have effected on next Monday.

14. Differentiate between the next of friend of a minor and a guardian ad Litem of a minor.
Art 34 (5), A minor (infant) is a person below 16 years.
O.32 r.1, Rhodes V Swithen bank (1889) 22 QBD 577 at 578, A next of friend is an officer of court
appointed to look after the interest of an infant or a person of unsound mind and the conduct of
proceedings where the infant or minor is the Plaintiff or complainant while under 0.32 r.3, In
Bibonde V Waswa (1974) HCB 159, a guardian ad Litem is an officer of court appointed to defend
a minor or a person of unsound mind in court proceedings.

15. What do you understand by the term representative action?

O.I r.8, its where unincorporated associations or groups of persons with a common interest may
sue or be sued through a representative.

16. What is meant by Joinder of Plaintiffs?

O.1 r.1, Yowana Kahere & ors V Lunyo estates Ltd (1959) EA 319, it is where all rights in a
proceeding whether jointly, severally or in the alternative are in respect of the same or a series of
transactions from the deferent persons claiming the breach of such rights

17. What is the effect of Misjoinder of parties?

O.1 r.9, Lawrence M. Kyazze V Eunice Busingye (1992) KALR, No suit shall be defeated by reason
of misjoinder or none joinder of parties. But however it gives right to appeal if the misjoinder leads
to a miscarriage of justice.
18. What is meant by claim of the defendant in the alternative?
In Benetts and CO. V MC ii Wraith and CO. (1896) 2 QB4 464, it’s where the Plaintiff may claim
damages from co-defendants as alternative if the first one can’t be liable. For example where
there is doubt as to the agent’s authority and the principle is added as a co-defendant.

19. Distinguish between an intervener and Amicus Curie.

This is a person who on his/her own application with leave of court is added to an action pending
between others and when added, he/she may have the status of a party to an action as a friend
of court. While Amicus Curie is a person who calls to the interior of court some decision or point
of law but who does not become a party to the action. Re: Nakivubo chemists (U) (1977) HCB 311.

20. What does the word Misnomers mean in civil matters?

Kohli V Popatatal (1946) EA 219, a misnomer is where court struck out the name of the Plaintiff or
Defendant who is improperly Joined in the suit before court e.g. a dead person.

21. What is meant by alias and how can alias be proved?

a. Alias is where a Plaintiff knows the identity but not the name of the person involved
in the civil wrong.
b. S.43 of the evidence Act, Alias is proved by expert opinion from an expert.

22. What is meant by third party proceedings?

O.1 r.14(1) its where the defendant claims to be entitled to a contribution or indemnity over
against a person not a party to the suit, he/she may by leave of court issue a notice to the third
party for contribution on the said claim against the defendant.
In overseas Touring ltd V Dresdner Bank AG (1971) EA (1970) HCB 3rd party proceedings is
restricted to the defendant’s claim of contribution or indemnity against a third party.

23. What is meant by the term Inter pleader?

S.59 of the civil procedure Act cap 71, O.34 r.2 of the civil procedure Rules SI 71-1 and In Famous
Cycle Agency Ltd V Mashulular Ramji HCCS No. 88 of 1992 (1994) 5 KALR 58.
It is where the applicant who is in possession but does have interest in the subject matter which
is claimed by two or more persons applies to court to declare as to who the applicant should give
the subject matter in contention.

24. What is a cause of action and what must one prove to establish a cause of action?
a. In Auto garage V Motokov (1971) EA 317, a cause of action is the fact or combination
of the facts which gives rise to a right of action or a right to sue or be sued.
b. The Plaintiff must prove that he enjoyed a right, the right has been violated and that
the defendant is liable.

25. What is the effect of non-disclosure cause of action in a suit before court?
O.7 r.11, In Tororo Cement CO. Ltd V Frokina International Ltd CACA No. 21 of 2000, where the
cause of action is not disclosed, the suit shall be dismissed.

26. What is the meaning of Res-judicata?

 Section 7 of the civil procedure Act cap 71, Semakula V Mugalu (1979) HCB 90, Res-judicata means
where the Plaintiff institutes a fresh suit on a matter that has been heard and determined by the
same court with the same jurisdiction.

27. What do you understand by the term limitation period of action?

In Charles Mpiima V AG HCCS No. 980/1990, limitation period is a time limit during which an action
may be brought thereafter the said period, a potential Plaintiff is barred and may no longer bring
his/her action.

28. Once statute barred always statute barred clarify the statement.
Nicholson V England (1926) 2 KB 93- once a cause of action has become statute barred,
subsequent developments (causes of action) cannot revive it.

29. What is meant by computation of time?

Sayiko Muroma V Yovan Kuko and Anor (1985) HCB 68 computation of time is where court
disregards parts of the day in calculating the expiry of limitation period. It applies where the
Plaintiff pleads sufficient reasons for not bringing the cause of action within the period stipulated
by the statute.

30. In Civil suit between ordinary persons can be instituted immediately after the cause of action
arose. What is the time frame in which suits against the government after giving notice may a
suit be instituted and give reason for your answer?
The suit against the government is instituted after expiry of 45 days’ notice to the AG.
The reason is to enable the government investigate its officer and the alleged tort committed.

31. What is meant by summery procedure?

Symon and CO V Palmer’s store’s (1912) 1 KB 259
Its where instead of trial first and then a judgment, there is a judgment at once and never a trail.

32. Upon filing an endorsed plaint in summary procedure and an affidavit, the defendant has
automatic right to file his/her defense. Yes or no? Give reason for your answer.
No.
Reason: O.36 r.3 (1), Maluku Intergrobal trade Agency Ltd V Bank of Uganda (1985) HCB 65, the
defendant must seek court’s leave to appear and defend him/herself.

33. What are interrogatories?

These are questions addressed to an opposing party in an action aimed at discovery of facts.

34. Under what circumstances interrogatories may be granted.

When the interrogatories relate to a matter in question between the parties
Where the interrogatories are necessary for disposing of the matter fairly or for saving costs.

35. At what point in time may a party apply for interrogatories?

O.10 r.1, In D’Souza V Ferrao (1959) EA 1000, the Plaintiff or defendant may apply for
interrogatories within 21 days from the date of the last reply or rejoinder.

36. Every interrogatory must have a note at the foot note. What is the purpose of that note?
A note at the foot note states which of the interrogatories each of the person is required to answer
and it must appear to the draft presented to court.
37. Interrogatories only to the credibility of a witness will not be allowed. True or false? Give
support to your answer.
True
Reason being that interrogatories are questions addressed to the opposing party aimed at
discovery of facts which have not been brought to the attention of court. So if the interrogatories
a meant to support the testimony of the witness, there would be no discovery of new facts yet
the purpose of interrogatories is to discover new facts to court.
38. Interrogatories may be sought to the present and a future case. True of false and if so why?
False
Reason being that interrogatories only are sought only for discovery of facts in a case before court
by same nature and non-disclosure of such facts to court or court to the opposing party.

39. What is meant by finishing interrogatories?

O.10 r.2 and 3 of the CPR SI 71-1, lord Esher MR in Hennesey V write (No.2) (1888) 24 QBD 445 at
448, where it appears that questions are asked and answers insisted upon in order to enable the
party to see if he can find a case, either the complaint or defense which at present he knows
nothing and which will be a different case from that which he now makes, the rules against fishing
interrogatories apply e.g. if the interrogatories call the interrogated party to express an opinion
of something.
Under O.10 r.8 and in Welbach Incandescent Gas Lightenings CO. V New sunlight Incandescent
CO. (1900) 2 ch 21, interrogatories are answered by affidavits and binding on the party.

40. Under what circumstances interrogatories may be orally answered?

O.10 r.11 when the party interrogated omits to answer or answers insufficiently, the interrogating
party may apply to court that the interrogated party answer further either by affidavit or upon
oral examination (viva voice examination).

41. What are discoveries?

Discoveries refer to the disclosure and inspection of documents as opposed to facts. It is therefore
the procedure whereby one party to an action must disclose to the other party the existence of
all documents which are or have been in his possession and which are material in the action before
court.

42. What is meant by the term inspection?

O.10 r.15 it is where a party to a suit is entitled to give notice to any other party’s pleadings or
affidavit and requiring him to produce that document for inspection.

43. What is the difference between discoveries and inspection?

Discoveries is an order of court requiring the party to produce documents that are of material
facts to an action of which such documents have not yet been brought before court. While
inspection is and order of court requiring the opposite party to avail to the other party documents
that are of material facts and are before court but such documents that have not been availed to
the opposing party.

44. What is the effect of noncompliance with an order of inspection by the party refusing to honor
that order?
O.10 r.5, Noncompliance with an order to produce the document for inspection, will render courts
to reject the non-compliant party from using the same documents in its evidence unless he/she
satisfies court on why he could not produce it to court for inspection and why it must be brought
now to back up his evidence.
45. What is meant by scheduling conference and at what point in time is scheduling conference
held?
O.12 r.1 Stanbic Bank (U) Ltd V Uganda Cross Ltd SCCA No.4/2004
Scheduling conference is where the parties after filing the last replies hold a meeting before a
judge to sort out points of agreement and disagreements if any, the possibility of mediation,
arbitration and any other form of settlement.
O.12.r.1 (a) it is held within 28 days from when the parties filed their last reply on the said matter.
Where the parties have not filed for delivery of interrogatories and discovery, it shall take place
within 7 days as per O.12 r.1 (b) except that time may be extended upon application by the party.

46. What do you understand by the term constitutional petition and when may constitutional
petition be brought to court?
Article 137(3), it is when a person or a group of persons take a matter to the constitutional court
for interpretation when there is a contraventions on any of the provisions of the constitution by
an Act of parliament or any other law. Charles onyango Obbo Andrew mwenda v AG Constitutional
petition No 15/2005

47. The general rule is that it is only the aggrieved party that has Locus standi to have an action
heard before a competent court. Under what circumstances may a person bring an action on
behalf of the entire public?
Article 50(2) of the Constitution, Uganda Law society V Ag where the matter concerns or affects
the general public.

48. What is an injunction?

O.41r1,2, American Cyanamid Co Ltd V Ethicon Ltd(1975)AC 396 at 405, an injunction is an order
of court granted to restrain the defendant from doing acts alleged to be in violation of the
plaintiff’s legal rights.

49. Under what circumstances may an injunction be granted?

Where there is likely to be an irreparable injury or damage to the applicant and monitory
compensation would not afford an adequate remedy to the injured party. A balance of
convenience

50. Distinguish between interlocutory injunction and interim injunction.

0.41v.1, Kiyimba Kagwa V Katende (1985) Hcb43, Interlocutory / temporary injection mean a
temporary Order restraining a person from doing or omitting to do an act until the final
determination and final order the court over the same matter. While an interim injunction is a
nature of an interlocutory injunction restrain the dependant only until the a named day whose
purpose is to ensure that the status Quo does not change during the period before the application
for temporary or interlocutory injunction is heard.

51. What is meant by Mareva injunction?

S.64 of the CPA and in Mareva compania Naviera S.A V International Bulk carriers (1980) / ALLER
213, Mareva injunction is an order of court freezing the defendant’s property from being removed
from the court’s jurisdiction. Eg where the property is at risk of being taken outside the country.

52. What is meant by Anton pillar orders?

 In Aton Piller KG V Manufacturing processes Ltd (1976)CHSS Anton Piller order is a mandatory
injunction which orders the defendant to allow an independent attorney to enter the defendant’s
premises for purposes of searching and seizing documents or property that are relevant to the
plaintiff’s claim.

53. Define Security for Costs

O.26 r.1 Security for costs is money paid into court of which an unsuccessful plaintiff will be able
to satisfy any eventual award of costs made against him.

54. By which mode of proceedings may the applicant apply for security for costs?
O.26 r 3 by Chamber Summons

55. What is meant by Tender before Action?

O.27 r.3 Tender before action is a defence to a claim for a debt that the defendant tendered the
amount of the debt before the action or suit was commenced.

56. What is the difference between a decree and a ruling?

S. 2 of the CPA, a decree comes from a judgment while an order comes from a ruling and the ruling
arises out of summary trials.

57. What is the difference between expert judgment and consent judgment?
Answer Henry Kawalya V J. Kinyankwazi (1975) HCB 372, Experte judgment is obtained by
default judgment where the defendant fails to file a defence and court grants the plaintiff the
judgment without hearing from the defendant
Consent judgment on the other hand 0.5 V 2, Mark Kamoga and Anor v AG and ULC CACA
NO74/2002 is where both parties to the proceedings agree or consent to the settlement of the
dispute between them and ask court to enter a consent judgment instead of court giving its own
findings and the own judgment.

58. Under what circumstances may the supreme court of Uganda seat as a court of first instance?
Art 104 in matters of presidential election petitions.

59. Under what circumstances may court interfere with its own judgment?
1. Where there has been accidental slip in the judgment as drawn up
2. When court itself finds that the judgment as drawn up does not correctly state what the
court actually decided and intended. Harrison V Harrison (1955) IALLER 185
3. Where the judgment is a nullity Okoli Ojiako V Amwama Ogueze (1962) ALL NLR 58

60. What is meant by objector proceedings?

O.22 r.55 of the [Link] 71-1 its where a third party object to the attachment of property which
allegedly does not belong to the judgment debtor.

61. What do you understand by the term Tender before Action?

O.27 r.3, it’s a defence to a claim for a debt that the defendant tendered the amount of debt
before the action was commenced.

62. What do you understand by Arrest and attachment before judgment?

S.64 of the CPA, 0.40 V.1, Pyarali Datardini V Anglo American Amusement Park (1930)4 ULR, it is
where court issues a warrant to arrest and attach the property of the defendant and bring him
before court where there is a likelihood of the defendant to escape from the local limits of court.
63. What do you understand by the term default judgment and under what circumstances may a
default judgment be set a side?
O.9 V.12, Kyobe Senyange V Naks Ltd (1980) HCB 31, default judgment is an experte judgment
given to the plaintiff where the defendant failed to enter appearance.
O.9 r.3, Wamini V Karimu (1969) EA 172 Kyobe Senyange V Naks Ltd (1980) HCB 31, (i) a default
judgment can be set aside where it has been irregularly obtained and the defendant had a
reasonable excuse for failing to appear and file a defence.

64. S.19 rule 15 of the Government proceedings Act (Civil procedure rules providers that no
attached of government property can be issued, what is the justification of the above provision?
S.19 rule 14 of the Government Proceedings Act (Civic Procedure rules, S 19(2) of the same Act,
brother Peter AG (1980) HCB 1 of Ostraco (U)Ltd V AG (2003) 2, EA 652 where the judgment debtor
applies for a certificate of satisfaction order before the registrar after the expiration of 21 days,
government property (movable only) may be attached.

65. Under O.43 r.4, O.22r.26, upon application. Court can stay execution. Under what circumstances
may there be an automatic stay of execution?
a. When there is an order of winding up
b. when there is an order for inter pleader. Re follows experte follow (1895) 2 QB 521
c. When garnishee order absolute is made against the judgment debtor and operates as a
stay against the judgment creditor. Re conman, Experte Hyde (1888) 20 QBD690.
However, in Re HB (1904) 1KB 94. Garnishee does not act as an automatic stay of
execution.
d. When a judgment creditor agrees to be paid in installments he cannot afterwards issue
an execution order. Clifton securities Ltd B Huntley (1948) 2 ALLER 283.
e.
66. What do you understand by execution of a decree?
It is an enforcement of or giving effect to the judgment or orders of courts of law.

67. What is meant by garnishee attachment of debts (garnishee proceedings)

O.23 r.1, Abdul Wahib and sons V Mushiram and Co (1932) 14 KLR 47 it is a process by which a
judgment creditor is enabled to reach money due to the judgment debtor which is in the hands of
a third person.

68. Distinguish between an appeal and a review

In Harman Sign Bhogal trading as Harman Sigh and Co V Jadva Karsan (1953) 20 EACA 17 at 18, an
appeal is a proceeding taken to rectify an erroneous decision of a lower court by bringing it before
a higher court. Review on the other hand is where a person aggrieved by the decision of court
applies to the same court which made that decision to review its own decision. S.82 of the CPA,
Adonia V Mutekenga (1970) EA 429

69. What do you understand by the term Revision in civil procedure?

S. 83 of the CPA, Karia V Wambura (1961) EA 91, it is where the High court revises the decision of
Magistrates Courts where the Magistrates Court exercised a jurisdiction not vested in it in law,
where it failed to exercise a jurisdiction vested in it or acted in exercises of it jurisdiction illegally.

70. What do you understand by the term judicial review

Paul Gahanga Ndarva V Republic and Ors HC mis APPN. No 5 / 2001, judicial Review is a means
were the High Court exercises its jurisdiction of supervising inferior courts, tribunals and other
 public bodies every case where there is no specific remedy and protecting the liberty of the subject
by speed and summary inter position

71. What is the difference between judicial review and appeal?

An appeal is concerned with the merits of a decision whereas a review is concerned with the
legality of that decision.

72. Under section 10 of the judicature Act Cap 13 it is provided that appeals from the High Court
shall lie to the Court of appeal. Is there a situation when there cannot be appeals from the High
Court to the court of Appeal? Yes or No. Defend your answer.
Yes. Apart from Habeaus Corpus, no appeals from prerogative orders (Mandamus etc) IGG V
Gladys Aserua,Orochi CAC Application No 90, AG V Shah (.,004)(1971) EA 50

73. What do you understand by the term deponent?

A person who swears an affidavit

74. What do you understand by the term Jurat?

A jurat is the clause at the end of the document/affidavit stating the date, place, and name of the
person before whom it was sworn.

75. What number of justices constitutes a full bench in the Supreme Court?
S. 3 of Judicature (Amendment) Act 2011, Chief Justice and 10 Justices of the Supreme Court.

76. How many justices of the Court of Appeal make a full bench?
Section 9 of the Judicature (Amendment) Act 2011 it consists of the Deputy Chief Justice and 14
justices of Appeal.

77. What do you understand by the term Small Claim?

Section 3 and 5 of the Judicature (Small claims procedure) Rules 2011, small claims whose subject
matter does not exceed ten million shillings.

78. Upon registration, companies become legal persons and can sue or be sued in their corporate
names just like natural persons. Is there any circumstances where by statute natural persons
can sue but companies cannot sue? Yes or No. Justify your statement
Rule 8 of the Judicature small claims procedure Act 2011 only Natural persons can institute small
claims but a company can only be a party as defendant.

79. The general rule is that only court summons are served by court officers. Are there
circumstances when court summons can be served by the plaintiff who is not an officer of court?
Yes or No, defend your answer.
Rule 12 of the Judicature (small claims procedure) Rules 2011 the claimant can serve summons in
person or through a court process server.

80. The general rule is that a party is at liberty to have a legal representative of his / her choice. Are
there any circumstances where a party is barred from being represented by an advocate? Yes
or No, defend your answer
In LC courts, Rule 8(2) of Judicature (small claims procedure) in small claims parties shall not be
represented by an advocate.

81. What do you understand by the term decretal sum?

It is the money that the judgment creditor owes to the judgment debtor.
82. What are the four cardinal objectives of civil procedure rules
 To ensure order in administration of justice
 To ensure that the court is assisted in reaching a just resolution of the dispute
 To formulate issues which the court has to determine and give a fair notice thereof to the
parties
 To promote transparency throughout the trial

83. What is the effect of failure to serve a notice of intention to sue

It may disentitle an advocate to fees

84. What are originating summons

This is where the procedure is by presentation of a string of questions to court for determination

85. What is the major distinction between a notice of motion and chamber summons
Chamber summons is issued by the authority of court while notice of motion is brought by a party
seeking relief or remedy from court

86. A party can choose to pay court fees either before or any time after filing any court process.
True or False
False

87. What is meant by the term “Next friend”

This is an officer of court appointed to look after the interests of an infant in conduct of
proceedings

88. Do pleadings contain matters of law or fact

They contain matters of fact

89. What are the three essential factors needed to sustain a cause of action
 The plaintiff must have enjoyed a right
 The right must have been breached
 The defendant is liable

90. A person who indicates in his will that upon his death, any suit brought for or against his estate
shall be in his name can be granted his wish. True or False (Give reason for your answer)
False, because upon death a person ceases to have capacity to sue or be sued

91. What is meant by the term limitation of actions

This is a time limit during which an action may be brought and there after the potential plaintiff is
barred and may no longer bring the action

92. Name any three ways a person can be joined as a party in the proceedings

 By a defendant after proceeding with leave of court

 By a plaintiff after proceeding with leave of court
 By the court on application of any party

93. What is meant by the term amicus curie

A person who calls to the attention of the court some decision or point of law, but does not
become a party to proceedings
94. What happens when an infant who is a plaintiff in an existing action represented by his next
friend becomes of age and wishes to adopt the proceedings
He or she should file in the registry to court a notice to the effect that he has attained the age of
majority and adopts the proceedings begun or defended on his or her behalf

95. What can a defendant who is party to proceedings instituted by a person who is found to be
mentally incompetent
The defendant can file an application to court to stay the proceedings until a next friend is
appointed

96. What is a cause of action

A fact or set of facts which the plaintiff relies on to obtain a remedy from court

97. What is the meaning of the term locus standi

This is the status which the law requires of a person to enable them to invoke the jurisdiction of
the court in order to be granted the desired remedy

98. How do you tell that a plaint discloses a cause of action

You look at the plaint and its annexure

99. Name any circumstance under pleadings will be struck out

When it does not disclose any cause of action

100. After how long should a defense be filed in response to summons

Within 15 days after service of summons

101. Why cannot proceedings be discontinued by a party who becomes mentally incompetent
during the pendency of proceedings
Because the party is unable to revoke the previous authority given to his or her counsel to
commence or defend the proceedings

102. What is the effect of change of name by a company to an ongoing legal proceeding by or
against it
The change of name has no effect and does not render defective any legal proceedings instituted
by or against the government

103. When does one become a defendant or respondent in civil proceedings

On filing an and being served with summons or other notice in an action without the necessity of
filing a defense

104. What is an ordinary suit

This is the usual method of commencement where there is a substantial dispute as to facts and
the suit is normally instituted by way of plaint

105. Who bares the responsibility to prepare, produce and serve summons
It is the responsibility of each party to prepare, produce and serve his or her pleadings upon the
opposite party

106. What are inter pleader proceedings

 It is a suit to determine a right to property held by a usually disinterested third party who is in
doubt about ownership and who therefore deposits the property with the court to permit
interested parties to litigate ownership

107. Explain this principle “once statute barred, always statute barred”
This is the underlying principle of the law of limitation that once a cause of action has become
statute barred, subsequent developments cannot revive it

108. What is the function of pleadings

To help ascertain with precision the matter on which the parties differ and those on which they
agree thus arriving at clearly defined issues which both parties desire a judicial decision

109. Outline any four grounds for joinder of parties

 Where relief sought is in respect to the same or a series of transactions
 Where there is a common question of fact or law
 Where leave of curt is obtained
 Where the person’s presence is necessary

110. What are pleadings

Any petition or summons including statements in writing of the claim or demand of any plaintiff
and the defence of any defendant to them, and the reply of the plaintiff to any defence or counter
claim

111. What is the cardinal rule of proceedings

Every pleading shall contain a brief statement of material facts which the party relies for a claim
or defence as the case may be
112. What are exparte proceedings
These are proceedings were not all parties are present or given the opportunity to be heard

113. Can a defendant be penalized for raising a preliminary objection which was not mentioned
in the statement of defence
No, they cannot, but it is always convenient especially for the plaintiff so that they can prepare a
response.

114. What is the rationale for having limitations of actions

The potential defendant will not have to live with the risk of legal action indefinitely and old
actions are difficult to try when memories are crowded and evidence is probably lost

115. What is a plaint

It is a statement of claim, a document or memorial by presentation by presentation of which a
suit is instituted

116. What is the advisable step to be followed in instituting an action against a company
It is advisable to ascertain from the Registrar of companies or from the Act of incorporation the
proper name of the company

117. Outline four advantages of exchanging pleadings

 Parties get to know what is in dispute

 Helps to determine the mode of trial
  Helps in the final determination of suits
 Saves expenses in procuring evidence knowing what will be brought at trial

118. Through whom must an infant file a suit

Through a next friend

119. What is the opposite of the term next friend

Guardian ad litem
120. What is the hierarchy of the subordinate courts established under the MCA Cap 16

 The Chief Magistrate Court

 Magistrate Grade I
 Magistrate Grade II

121. What is the pecuniary jurisdiction of the Chief Magistrate Court as per the amendment
Fifty million shillings (under the Magistrate (Amendment) Act 2007

122. What do you understand by the term third party proceedings

This is an action involving the plaintiff’s claim taken by the defendant for contribution or ordinary
indemnity against a third person or a co-defendant as third party

123. The summons is supposed to be effected within 21 days from the date of issue, except that
the time may be extended on application to court. O 5. R 1(2)). .When summons have been
issued by the court and the person who is supposed to serve them fails to them in the specified
date thereof , such summons are expired. What should be done to make them valid them?
They should be returned to the court for renewal.

124. Briefly explain how service of summons on the government is effected.

Service on the government must be on the AG and is effected by delivering or sending the
summons to the Attorney General’s Chambers

125. Summons can be served any time and day including Sunday as long as it is before 6.00 pm.
True or false.
False

126. How are proceedings of judicial review commenced?

By notice of motion

127. What is a petition?

A petition is a method by which proceedings are commenced as prescribed by statute, statutory
instrument or rules.

128. What is the meaning of the phrase, “republicae ut sit finis iitum?”
It means that litigation shall be automatically stifled after fixed length of time, irrespective of the
merits of a particular case.

129. Briefly explain what you understand by, “res judicata”.

Means a thing or matter adjudged; a thing judicially acted upon or decided; a thing or matter
settled by judgment

130. What is the effect of a judgment passed by a court, which has no jurisdiction?
 The judgment, is nullity and not only voidable.

131. What do you understand by courts of record?

These are superior courts of judicature established under article 129 and provided for under
Article 129(2) and they include the Supreme Court, the court of appeal and the High Court. And
there decisions can be used as presidents.

132. What is meant by the expression, ‘judicial discretion’?

It refers to judges powers to make decisions without being obligated to follow precedent or rules
established by statute.

133. What is the justification for judicial discretion and judicial activism?
Legislation cannot anticipate every eventuality; therefore they help in filling the gaps or omissions

134. An infant like a mentally incompetent person is under disability at law to bring or defend an
action. How does a minor defend an action?
By his or her guardian ad litem

135. Define a third party proceeding.

An action involving the plaintiffs claim taken by the defendant for contribution or indemnity
against a third person or a co-defendant as third party. (Under O1, r 14 CP Rules)

136. How can a party bring an application to court in the case where a statute provides for an
application to be made but does not specify the form in which it is to be made, and the rules
do not expressly provide for any special provide for a special procedure?
By notice under O. 52, r 1 CPR.

137. What is the effect of failure by an advocate representing a minor to file authority or defense,
hence causing the plaint to be taken off a file?
The court may order costs to be paid by personally by counsel.
138. What happens in case where pleadings on behalf of the minor are filed without the
authority of a next friend?

The pleadings are struck off the file by the court.

139. Who is trustee?

A person engaged in administrative duties with regard to property entrusted to him for the benefit
of others.

140. Under what circumstances may court order separate trials in case of joinder of causes of
actions?

Where it appears to the court that any causes of action joined in one suit cannot be conveniently
tried or disposed of together.
141. The determination of when time begins to run depends upon the date on which the cause
of action arises and the nature of the action. When does time begin to run in an action brought
under contract?

A cause of action will arise as soon as the breach occurs.

142. What does a party have to prove in trespass or breach of contract in order to found a cause
of action?

Proof of trespass or breach of contract is enough to found a cause of action.

143. What is the general effect of a cause of action which statute barred?

Once a cause of action is has become statute barred, subsequent developments cannot revive it.

144. List four defences to limitation of causes of action.

 Disability
 Fraud
 Concealment
 Mistake

145. What is the effect of negotiations between the parties to suit on the limitation of their
action?

The limitation time continues to run and it is incumbent upon a party who wants to file documents
to do so within the within the allowed time.
146. List four pleadings.

 plaint
 Written statement of defense
 Counterclaim
 petition
 Reply to defense and defense to counterclaim
 Answer to petition
 Originating summons

147. What is the rationale for res judicata?

But for this rule, there would be no end to litigation and no security for person: the rights of
persons would be involved in endless confusion and great injustice done under the cover of the
law.
148. Describe the mode of service of summons.
 Mode of service of summons is stipulated under order5, r.8 that, service of summons service of
summons shall be made by delivering or tendering a duplicate of the summons signed by the
judge or an appointed officer and sealed by the court.

149. Define a counter claim.

It is a cross claim, which the defendant raises in the very action brought against him by the
plaintiff, instead of himself bringing a separate, independent action against the plaintiff.(Order 8,
rule 2 CPR )
150. What do you understand by the term set off?

Setoff is claim by the defendant to a sum of money; whether of an ascertained amount or not,
which is relied on as a defence to the whole or part of the claim made by the plaintiff.
151. The plea of setoff can be used as way defence to the plaintiff’s claim Explain what happens
where the setoff exceeds the claim.

The defendant may plead in his defence a setoff of part of the debt due from the plaintiff, and
may counterclaim for the residue of it, to recover judgment against the plaintiff for the excess.

152. Name any four grounds the court may exercise its right to join parties

 Court may order any unnecessary or improper person to cease to be a party

 Add any person who is necessary for effective adjudication of the proceedings
 Add any successor of a deceased or bankrupt party or a corporate party that has been
wound up or dissolved
 Consent of the person added

153. Who is an intervenor

An intervenor is one, who on his own application and with leave of court, is added to
an action pending between others
154. Give four objects of third party proceedings

 To prevent multiplicity of actions

 To prevent the same issue from being heard twice with the possibility of reaching different
results
 To have the issue between the defendant and third party bound by the decision in the original
action between the plaintiff and the defendant
 To have the issue of the defendant and third party to be heard as soon as possible after the
decision in the original action

155. On which grounds may third party proceedings be instituted

 When there is a claim for contribution or indemnity

 Where the relief is related to the original subject matter
 Where the determination is of related issues
 What are the requirements of an application by way of interpleader
 The applicant must not claim any interest in the subject matter in dispute other than for charges
or costs
 There must be no collision between the applicant and any of the claimants
 The applicant should be willing to pay or transfer the subject matter into court or dispose of it as
court may direct

156. What is the general effect of expiration of a limitation period

The remedy is barred but the plaintiff’s right is not extinguished as he or she other
than using judicial means, can use any other lawful mean to enforce the right

157. What is the limitation period for breach of contract

It is six years from the date of breach

158. Distinguish between general damages and special damages

General damages is such as the law will presume to be the natural consequence of
the defendant’s act while special damages is such a loss as the law will presume to be
the consequence of the defendant’s act dependant on special circumstances of the
particular case

159. What principles govern the exercise of discretion or allowing amendment of pleadings

 The amendment should not work an injustice to the other side

 Multiplicity of proceedings should be avoided as far as possible and all amendments to
this effect should be allowed
 An application which is made malafide should not be accepted
 No amendment should be allowed where it is expressly or impliedly prohibited by any law

160. Give any four circumstances under which leave to amend proceedings may not be granted

 Where the necessity for such amendment was obviously apparent long before trial and
was not asked for
 Where the amendment would involve a complete change in the nature of the action
 Where the amendment involves setting up entirely different claim from that which the
defendant came to meet
 Where the amendment raises an entirely new ground of defense or counter-claim

161. When does an amendment to pleadings take effect

It takes effect from the date of the original document which amended it and not from the date
when the amendment was made

162. What do you understand by the term vexatious pleading or action

A pleading or action is vexatious when it lacks bonafides or is hopeless or oppressive and tends to
cause the opposite party unnecessary anxiety, trouble, and expense.

163. What is summons

This is an official order requiring a person to attend court either to answer a charge or claim or to
give evidence

164. Name any three options available for service on a firm

 It can be served upon any one or more of the partners

 At the principle pace of business if carried out in Uganda
 As the court may direct
165. State any three applications that may be brought by notice of motion
 Judicial review
 Habeas corpus
 Redress for breach of fundamental human rights provision under the Constitution

166. Define the term summary procedure.

Under summery procedure, instead of trial first the judgment, there is judgment once and never
a trial

167. State any four claims under which summery procedure may not be applicable
 Libel
 Slander
 Malicious prosecution
 Allegation of fraud
 Probate actions
 Actions against the Government

168. What do you understand by the term ‘cheque Rule’ under summery procedure

This is where goods or services are paid by a cheque r bill of exchange which is subsequently
dishonored, the payee is entitled to summery judgment on the cheque and the defendant is precluded
from setting off against that claim any counter claim for damages

169. What is the standard of proof in civil suits

It is on the balance of probabilities

170. Under what circumstances may consolidation of actions be granted

 Where there is a common question of fact or law
 Where there is right to relief out of the same or similar transactions
 In cross action between the same parties arising out of the same matter
 Same cause of action
 Where consolidation will save expenses

171. There are various circumstances where court may refuse consolidation, state any five of
these circumstances
 When it is prejudicial to the plaintiff
 When it is impossible to save expenses
 Where different law is applicable
 Where a party is a plaintiff in one case and a defendant in another
 Where parties are represented by different advocates

172. What do you understand by the term partial consolidation

This is where there are several actions by different plaintiffs each with a claim for personal injuries
and the action is consolidated on the issue of action or the issue of liability by which all parties
agree to be bound

173. Explain the meaning of test actions/suits

Where two or more persons have sued or been sued separately and could have been joined in
one suit, upon application by either party the court may if satisfied that the issues to be tried in
 each suit are precisely similar, make an order directing that the suits be tried as a test case and
stay all other suits until determination of selected suit or failure to be a real trial of the issues

174. What is the effect of failure to comply with the formal requirements of pleadings
Non compliance does not render the pleadings a nullity, but an irregularity which may be amended
or waived

175. What is the date of endorsement of pleadings

This is the date on which the pleadings are drafted

176. What is the primary object of a defence

 To inform the plaintiff precisely how much of the statement of claim the defendant admits
and how much he denies
 What grounds and facts the defendant relies on to defeat the claim of the plaintiff

177. What do you understand by the term traverse

A traverse in a defence is a denial of an allegation of fact made in the statement of claim /plaint

178. A setoff can only be used as a shield and not a sword, explain.
A plea of set off can only be used by way of defence to the plaintiff’s action

179. What are the conditions precedent to a successful counter-claim.

The claim must be one in respect of which the defendant could maintain a separate action and it
must be of such nature that the court would have jurisdiction to entertain a separate action

180. What is discovery

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

181. Does the plaintiff’s right to institute a summary suit guarantee the right to defend? Explain
the reason for your answer.
No. The defendant cannot defend unless he or she has sought the court’s permission to do so (O.36
r.3)

182. At what point in the proceedings does court hold a scheduling conference
Within seven days after the order on delivery of interrogatories and discoveries has been made. (O.12
r.1(a)

183. What is the difference between a judgment and a decree

a. A judgment is the statement given by the judge of the grounds of a decree or order
while,
b. A decree is a formal expression of an adjudication which, so far as regards the court
expressing it , conclusively determines the rights of the parties with regard to the
matters in controversy in the suit and may either be preliminary or final (S.2(c))

184. A party to a suit has the right to deliver interrogatories to the opposite party at any time
they so wish. True or false? Give a reason for your answer.
False. The party has to apply to the court within 21 days from the date of the last reply or rejoinder
and it is entirely at the judge’s discretion as to whether to allow or disallow the application. (O.10 r.1)

185. What is a garnishee order

This is an order that enables a judgment creditor to reach money due to the judgment debtor which
is in the hands of a third party

186. What are objector proceedings

These are proceedings in which an attachment can be contested where an objector maintains that the
property is not liable to such attachment (O.22 r.55)

187. Where can an interested party find the reason behind a particular decree
i. By looking at the judgment

188. What is an affidavit

It is a written statement on oath that sets out matters that are within the knowledge and belief of the
person making it.

189. Which court can entertain a third appeal

The Supreme Court (S. 6(2) Judicature Act)

190. As a mandatory requirement, interrogatories shall have a note at the foot. What is stated
there under?
The note states which parties are required to answer which interrogatories

191. Who is a judgment debtor

This is the party against whom a decree is passed

192. What do you understand by the term Mareva injunction/Freezing order

It is a court order which freezes assets so that a defendant to an action cannot dissipate their assets
from beyond the jurisdiction of the court so as to frustrate a judgment

193. What are the three required documents to institute summary proceedings
a. Plaint
b. Affidavit
c. Summons (O.36 r.2

194. What is the distinction between affidavits and statutory declaration

An affidavit is restricted to court matters while a statutory declaration is restricted to other matters
not referable to court (section 2 and 3 CPA)
195. What is meant by the term ‘costs follow the event’?
It means that the loser in legal proceedings must pay the legal costs to the successful party

196. Between discoveries and interrogatories, which is the best option a party can use to discover
facts?
Interrogatories

197. What is the meaning of the term jurat?

This is an endorsement at the left hand side of the body of the affidavit signed by the commissioner
for oaths or other official before whom the swearing was administered together with the place and
date of swearing

198. What happens when a party fails to adhere to a court’s order to answer interrogatories
The court may dismiss the action or order the defence to be struck out as the case may be.

199. What is meant by the phrase “discovery must not be used as a ‘fishing’ expedition
Discoveries must not be used by a party who does not have material for even an arguable case and
hopes to find them from the other side

200. What can a party do if he wishes to contest an opponents case?

 He can deny the whole or some essential parts of statements of fact contained in the
[Link] is what is called travelling an opponent’s allegation and the party will in essence
be compelling the other party to prove his or her allegation.

 He may confess and avoid (confession and avoidance). In his or her defense, he/she may allege
facts which go to destroy the effect of the facts alleged in the plaint. He may plead other facts
but argue that it is the plaint in default.
 A demurer-this basically means pleading a point of law. The defendant may plead judicator,
limitation,etcetra.

201. In which order in the CPR are pleadings found?

Order 6.

202. What are formal requirements of pleadings?

 Heading and title-year, court, location of court and description of pleadings.
 Describing the parties.
 Description of pleadings.
 Paragraphs.

203. What are constituent elements of O.6, r.1?

 Every pleading must state material fact only.
 Every pleading must state all material facts
 Every pleading must state all the material facts but not the evidence to prove those facts.
 Every pleading must state all the material facts and those facts
 Every pleading must state all material facts in a summary form.

204. What are condition precedents?

This is a condition agreed between the parties or imposed by statute and the fulfillment of which
is necessary before a party becomes entitled to sue O.6.r5

205. What is the distinction between a set off and a counter claim?

A set off is in the nature of defense whereas a counter claim is in the nature of a cross action.

206. Under what circumstances will pleadings be struck out?

 When it does not disclose any cause of action or good defense.

 Scandalous pleadings i.e. when indecent or offensive.
 Frivolous or vexation pleadings and actions. Nsereko V Lubega (1982) frivolous was defined to
mean a pleading or action which is without substance or which is un arguable.

207. What is the effect of an amendment?

An amendment of pleadings effect made with or without leave takes effect not from the date when
the amendment was made but from the date of the original document which is amended.

208. What are interrogatories?

Interrogatories are questions addressed to an opposing party in an action, aimed at court discovery
of facts.
The power of court to administer interrogatories is derived from legislation (S.22 CPA and S.22 GPA).

209. What are the essential requirements of interrogatories?

 Must relate to a matter in question between the parties.

 be necessary either for disposing of the matter or for saving costs.

210. What is discovery of a document?

The procedure by where by one party to an action must disclose to the other party the existence of
all documents which are or have been in this phenomenon and which are material in the action.

211. What is a judgment?

A judgment means the statement given by the judge on the grounds of a decree or order.
A judgment is also defined as a decision or sentence of court in a legal proceeding or the reasoning of
the judge, which leads him to his decision.
212. What is an exparte judgment?
An exparte judgment is obtained by default of defense is by its nature not a judgment on merit and it
is only entered because the party concerned has failed to comply with certain requirements of the
law.

213. What is consent judgment?

If either a party is willing to consent to a judgment or order against himself.

214. Who makes the judgment?

As a general rule inter, the judged who heard the matter must make a judgment and such shall read
such judgment. The judgment must be read in open court.

215. What happens when any of the essentials to sustain a cause of action is missing.
The plaint is defective and ought to be struck off.

216. What does order 7 rule 11, E, found as far as cause of action is concerned?
In order 7, rule 11, e, provides that a plaint shall be rejected where it does not disclose a cause of
action.

217. Give two advantages of joinder of cause of action in court litigation?

 It reduces the number of actions
 It also reduces on who should be parties to an action.

218. In case the defendant contests the joinder of any cause of action, what happens?
The plaintiff must justify the joinder or else the objection to this joinder will be up help by court.

219. When can the plaintiff have different causes of action against the same defendant?
This can happen where the cause of action arises in respect of the same transaction or series of
transaction or where the court authorizes the joinder.

220. Give two principles applicable to joinder of causes of action refusal?

 Joinder of action should not be permitted if they should not be permitted if they cannot be
disposed of conveniently in one action or their joinder would be considered too oppressive.
 Entirely separate cause of action refused joinder entirely separate cause of action against a
defendant cannot be joined as alternative claims.

221. What are the laws that govern the limitation of action?
 The Limitation Act, Chapter 80
 The Civil Procedure and Limitation(miscellaneous provisions) Act Chapter 72

222. Give two instances where time cannot run under the law of limitations?
 Where the potential defendant is not dissolved
 Where a potential defendant is protected by diplomatic privilege.

223. Under what circumstances is the running of the limitation time deemed to be postponed?
 Where the action relief from is a consequence of mistake
 Fraud of the defendant
 Where any failure relevant to plaints has been deliberately concealed from by the defendant.

224. What is the effect of the expirely of a limitation period?

The general effect is that the remedy is barred but the plaintiff’s right is not extinguished.

225. What are the defenses to limitation period?

 Disability section 21 where one is an infant or insane
 Part payment,S.22
 Acknowledgement S.21
 Fraud S25.

226. What amounts to the limitation period in civil proceedings?

The limitation is the time limit during which an action may be brought and there after a potential
plaintiff is barred and may no longer bring his or her actions.

227. What is the effect of action which is stated bared?

Subsequent developments can revive it.

228. When is the limitation time deemed to begin running?

When the cause of action arouse.

229. What is res judicata?

No court shall try any suit or issue in which the matter directly and substantially in issue in a former
suit between the same parties.

230. What are the essentials of res judicata?

 The court is of competent jurisdiction.
 Directly speaking upon answer in question in the subsequent suit
 Between the same parties.

231. What action can be brought against the government?

Tort and Contract.
232. Who is a party to a suit?
A party is a person who on record of court has commenced a proceeding or been served with summons
or has been added by order of court.

233. Civil Procedure Act is chapter?

71, Laws of Uganda.

234. What happens when a party sues a wrong party to the suit?
The suit shall be dismissed and court may adjudge a party to pay costs.

235. What is locus stand in civil procedure?

This is a status which the law requires of a person to enable him to invoke the jurisdiction of the courts
in order to be granted a desired remedy.

236. Mention any three persons that have no capacity to sue.

 Minors
 Insane/unsound minds.
 An alien enemy.

237. Mr. John an alien enemy wants to sue Peter who has refused to pay his money that he
borrowed the previous Christmas can he sue?

 He has no capacity to sue.

 He has the status of an outlaw, cannot therefore come in court to sue.

238. Suing the government is possible, comment.

It is possible. A claim against the government may be enforced as a right by proceeding taken against
the government through the attorney general.

239. In instituting claim against the government, what must be given?

A statutory notice of 45 days shall be given.

240. Can a local government sue or be sued under civil proceedings?

 Under A.178 (6) of the constitution. Local govts shall be a body corporate with power to
sue or be sued.
 S.6 of local government Act further provides the capacity of local government’s under civil
proceedings

241. How rights of a deceased person whose property is being grounded are enforced?
Through the administrator or executor/adminstratrix on executrix he can sue or be sued.

242. How does one acquire the rights to enforce the rights of a deceased person?
0.7 r4 he/she is required to possess letters of administration to sue or be sued on behalf or a deceased
person. He/she must apply to them.

243. “Next friend” what does this mean?

A next friend is an officer of the court appointed to look after the interest of an infant and the conduct
of proceedings.

244. Of what effect is a judgment or decree by or against an infant without a next friend or
‘guardian ad litem’.
It means that absolute accuracy of names is not required in legal documents. If a name in a document,
through different from the correct spelling of it conveys to the ears when prounced a sound practically
identical with the sound of the correct name as commonly pronounced. It may be a sufficient
designation of the individual referred to as that advantage cannot be taken to clerical error.

245. What is civil law?

This is law that deals with disputes between the natural persons as between themselves, and legal
persons as between themselves or natural persons on the other hand and legal persons on the other
hand.

246. What happens where after one has instituted a case under civil procedure in court without
jurisdiction and a judgment has been reached?
If a court has no jurisdiction whether pecuniary or territorial over the subject matter of the
litigation, its judgments and orders, however precisely certain and technically correct, are mere
necessities and not only voidable.

247. At what time does one become a defendant or respondent?

On filling an action and being served with summons or other notice in an action, a person becomes
a defendant without the necessity of the defense being filed or affiant in reply or a respondent.

248. When may a foreign state sue?

 When such a state has been recognized by the government
 When the object of the suit is to enforce a private right rested in the head of state or in any officer
of such state in his public capacity Ref 5.58 of CPA, Cap 71.

249. Under what circumstances may an unincorporated association sue or be sued?

 If it can be proved that all the members of the clans had a common interest.
 If they all had had a common grievance
 If the relief claimed was in its nature beneficial to all of them when a representative action may
be taken.
250. How are actions by or against unincorporated associations instituted?
They are not brought in the name of the association but in the name of the members involved either
personally or in a representative capacity or against trustees of the property of association.

251. How are actions against or by partnerships instituted under civil proceedings?
O.30,r 1 proves that partnerships may sue or be sued in the firms names or alternatively in the names
of individual partners.

252. What do you understand by amicus curie?

An amicus curie or friend of the court is a person who calls to the attention of the court some decision
or point of law, but who does not become a party to the action.

253. Which main advantage does the originating summons proceeding have over an action by
way of a plaint?
Originating summons proceedings are speedier than an action by way of plaint.

254. Which originating process is used when a string of questions are usually presented to the
court for determination?
Originating summons.

255. What is the intention for the institution of procedure by originating summons?
To enable matters to be settled by court without bringing an action in the usual way.

256. All applications to the court, save where otherwise expressly provided for under the Civil
Procedure Rules, shall be by way of?
Notice of motion

257. The following are applications which must be made by way of a notice of motion.
 Judicial review
 Harbeas corpus
 Redress for breach of fundamental human rights provisions under the constitution.

258. What is expected of a counsel who intends to object to notice of motion?

The counsel should raise the objection as a preliminary objection.

259. How can evidence be adduced on an application of notice of motion.

Through an affidavit.

260. As a rule, all notices of motions must be signed by a party……

The party or his/her advocate.

261. Chamber summons are heard in……………….while a notice of motion is usually heard
in…………………..
Chambers, open court.

262. Who issues and directs the issue of chamber summons?

Chamber summon is issued by the authority of court and served on a command directed by the court
concerned.

263. Who institutes a notice of motion and what is the reason behind its institution?
A notice of motion is brought by a party who is seeking some form of relief or remedy from court.

264. There are conflicting decisions on whether or not a motion of notice must be signed by
court. Who signs a notice of motion? Give a reason.
Notice of motion must be signed by the party or his or her advocate because it is the party seeking
some form of relief or remedy from court.

265. Filling of court process is done through?

A registry.

266. Before a party files any court process at any registry, what is expected of him or her?
Pay the court fees or filing fees set out in the court fees Rules.

267. What is the fundamental rule of service of summons?

Service of summons must be personnal. (order 5,rule 10 CPR)

268. Identify ways in which service of summons can be affected upon a corporation.

 Service will be affected upon the secretary or any director or other principal officer of
the corporation.( order 29,Rule 2 CPR)
 Alternatively, service may be affected by leaving or sending a copy of the summons
by post addressed to the corporation at the registerd office. If there is no registered
office then at place where the corporation carries
business (o 29,r2 CPR).

269. Who should be served when or process is upon the government?

The attorney general (s.11 of government proceedings Act Cap 77)
270. The general rule is that where the court is satisfied for any reason that the summons cannot
be served on the ordinary way, the court shall order substituted service in such a manner as it
deems fit which form does substituted service take?
The form of advertisement in newspapers/a fixing a copy in some conspicuous place in court or part
of his house or residence.(O.5,r16).

271. How can service be effected upon a defended who having knowledge of existence of
summons evades service?
Through application to court for substituted service(Order 5,r18).

272. Identify the way through which service can be effected on a defendant who is in prison.
The summons shall be delivered or sent by post or otherwise to the officer in charge of the prison for
service on the defendant. (o5,r 19 CPR)

273. What happens to a defendant who is a soldier where summons to be served upon him/her?
The court shall send the summons for service to his or her commanding officer, together with a copy
to be retained by the defendant. (O.5,r 20(2).

274. Where summon was issued by court, and the person is supposed to serve fails to serve
within the specified date, such summons shall expire. What should be done after the expiry of
summons?
The summons musts be returned to court for renewal through an application to extend the time
and a good reason must be given for the delay.

275. Who delivers summons to the opposite party?

A process server duly authorized by court, an advocate or advocate’s clerk approved by court to a
magisterial area where the defendant resides. (O.5, R.7 (7).

276. After the summons have been delivered, what should the person who delivered the
summons do after delivery?
Prepare an affidavit or service (O.5, r.16)

277. What is an affidavit of service?

It is a sworn statement of the person who effected service and must state the time and manner
in which the summons was served and the name and address of the person if any identifying the
persons served and witnessing the delivery or tender of the summons.

278. What is discovery?

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

279. Does the plaintiff’s right to institute a summary suit guarantee the right to defend? Explain
the reason for your answer.
 No. The defendant cannot defend unless he or she has sought the court’s permission
to do so (O.36 r.3)

280. At what point in the proceedings does court hold a scheduling conference
Within seven days after the order on delivery of interrogatories and discoveries has been made.
(O.12 r.1(a))

281. What is the difference between a judgment and a decree

A judgment is the statement given by the judge of the grounds of a decree or order while, A decree
is a formal expression of an adjudication which, so far as regards the court expressing it,
conclusively determines the rights of the parties with regard to the matters in controversy in the
suit and may either be preliminary or final (S.2(c))

282. A party to a suit has the right to deliver interrogatories to the opposite party at any time
they so wish. True or false? Give a reason for your answer.
False. The party has to apply to the court within 21 days from the date of the last reply or rejoinder
and it is entirely at the judge’s discretion as to whether to allow or disallow the application. (O.10
r.1)

283. What is a garnishee order

This is an order that enables a judgment creditor to reach money due to the judgment debtor which
is in the hands of a third party

284. Where can an interested party find the reason behind a particular decree
By looking at the judgment

285. Who is a judgment debtor

This is the party against whom a decree is passed

286. What do you understand by the term Mareva injunction/Freezing order

It is a court order which freezes assets so that a defendant to an action cannot dissipate their
assets from beyond the jurisdiction of the court so as to frustrate a judgment

287. What are the three required documents to institute summary proceedings?
 Plaint
 Affidavit
 Summons (O.36 r.2)
288. What is the distinction between affidavits and statutory declaration?
An affidavit is restricted to court matters while a statutory declaration is restricted to other
matters not referable to court (section 2 and 3 CPA)

290. What is meant by the term ‘costs follow the event’?

It means that the loser in legal proceedings must pay the legal costs to the successful party.

291. Between discoveries and interrogatories, which is the best option a party can use to
discover facts?
Interrogatories

292. What happens when a party fails to adhere to a court’s order to answer interrogatories?
The court may dismiss the action or order the defense to be struck out as the case may be.
 12. QUESTION FOR LAW OF EVIDENCE
1. What do you understand by the term relevance and admissibility of evidence?

This refers to the kind of evidence relevant to prove a particular fact

2. Distinguish between Resgastae and admissibility.

Resgastae are those other facts which are in relationship with a fact in issue, while admissibility is a
process which court accepts or rejects particular items of evidence depending on whether they are
relevant or not.

3. Explain the difference between factum probendum and Factum probans. State its
admissibility in evidence.

factum probendum refers to the principle of fact or fact in issue while Factum probans means those
other facts with evidential value that may help to explain the principle fact and they are both
admissible in court as evidence.

4. Give a valid explanation as to whether logically relevant facts can be admitted in evidence
even if they are not declared by the act to be relevant?

What is contained in the evidence Act is the result of long experience of shifting relevance of various
categories of evidence. Therefore what is left out as irrelevant is reject, suspect and is likely to
disguise the truth.

5. Under what circumstances is the principle of resgestae disregarded.

This occurs after the incident claimed to form part of resgestae has already occurred after the
transaction is complete.

6. Identify the existing terminologies of evidence;

Court: - Includes all judges, magistrates, assessors and all persons, except arbitrators, legally
authorized to take evidence.

Evidence: - Means by which any alleged matter of fact, truth of which is submitted for investigation
is proved or disproved.

Monogamous marriage: Means a marriage by law necessarily monogamous and binding during the
lifetime of both parties unless dissolved by a valid judgment of court.

Leading questions: - Are the most restrictive in which the lawyer provides details, but suggests to
the client that these details are true.

Directed questions: - Lawyer selects the topic or subject, but client determines what information is
relevant.

Fact: - Any mental condition of which any person is conscious

7. List down the relevant modes of communication of evidence

 Oral testimony
 Presentation of a document to court for perusal or construction.
8. There are 3 exceptions which enable court to establish facts by special means. State them.
 Formal admissions are made with deliberate purpose of dispensing with proof, but informal
admissions are usually the subject of proof.
 Court may take judicial notice of fact.
 In case of presumptions and thus substitute for evidence.
9. What do you understand by the term “probatioviva”?
This is oral evidence, defined as all statements required by court to be made before it by
witnesses in relation to matters of fact under inquiry.
10. Which facts are to be proved by oral evidence?
S.58 of the evidence act states all facts except the contents of documents may be proved by
oral evidence.
11. Explain the basis on which courts establish facts which are the occasion, cause or effect of
facts in issue in criminal cases and in civil cases. What is its significance?
In criminal cases, instances which are afforded an opportunity for their occurrence or
transaction are relevant. In civil cases, s.6 is important in showing facts of causation, which is
useful in apportioning liability as well as helping in assessment of damages.
12. Illustrate the meaning of motive and how it’s established?
 It is what influences a person to act in a particular way, which may constitute a fear
or desire to bring about a particular activity.
 It is a mental state derived from circumstances and relationships, and may be
established from one’s words or demeanor.
13. Which of the following is not part of the stages in criminal law offence (circle the correct
answer?)
A. Intention
B. Preparation
C. Anger
D. Attempt
E. Execution of the act
14. Conduct is divided into 2 phases. List them down.
 Previous conduct
 Subsequent conduct
15. State the rationale behind the rules of evidence?
 To establishing who has the burden of proof in particular instances
 To prescribe facts which may be proved
 To prescribe facts to be excluded from consideration of the court e.g. privileged information.
 To prescribe methods by which proof may be effected.
 To prescribe the extent of proof required in a particular case.
 To prescribe the effect of certain pieces of evidence.
16. By statutory provision, courts have seen that accomplice evidence is of the worst kind and
must be corroborated. What is the rationale for requiring corroboration for accomplice
evidence?
 Their evidence is untrustworthy before court as they are likely to tell lies in order to shift
guilt from him.
 As a partner in crime with accused, an accomplice is not likely to value his oath.
 If an accomplice usually gives evidence because of the hope or promise to be pardoned
or treated leniently by the prosecution.
17. List down the categories of corroboration as a requirement of judicial practice.
 Accomplice evidence
 Sexual offences
  Dying declarations
 Identification
 Evidence of a child of tender years.
18. Briefly explain the rationale for requiring corroboration in sexual offences, and what it
constitutes.
It’s because sexual cases are particularly subject to the danger of deliberately false charges
resulting from sexual neurosis, jealousy or simply a girl refusal to admit consent to an act.
Medical reports or any other evidence such as state of complainant and condition.
19. With reference to evidence obtained illegally or by unfair means. State the two conflicting
views.
 Evidence which is admissible should not be excluded because of the means by which it was
obtained.
 Such evidence should be excluded, to admit it might encourage obtaining evidence by such
means.
20. Under what circumstances is evidence illegally obtained by unfair means admissible and
inadmissible?

Inadmissible.

 Under common law, courts have discretion to exclude such evidence if it will operate
unfairly in a criminal trial.
 If its exclusion is a measure to encourage better standards.
 A confession obtained involuntarily is inadmissible in evidence.
 Evidence illegally obtained by police can be excluded in a criminal trial if it has been subject
to conflicting authorities.

Admissible

 Provided that the evidence is relevant there is no discretion to exclude evidence merely
because that evidence is illegally obtained.
 Its admissible if conducted with no force, persuasion and defendants acted voluntarily with
full understanding of their own dishonesty.
21. The modern law of evidence represents these compromises between the two extreme
views. Give a valid explanation in light of the above statement.
Generally speaking it reflects the first view in relation to admissibility as a matter of law in
criminal cases; it also empowers the judge to exclude such evidence as a matter of
discretion.
22. What is electronic evidence?
This is evidence which involves a computer related offense.
23. Illustrate the practical difficulties that may be encountered in investigating a computer
related offense.
 Computer on which relevant information is located may be a file server connected to a huge
network used for law purposes and without which network cannot function.
 Removal of computer will deprive the users their legitimate use of the computer.
 Information could be protected by software that will cause information to be destroyed if
not accessed in a specific manner.
 Owner can also object to attempts by the investigating offer to decrypt the information.
 Inability of investigating officers to determine the location of the computer where the
perpetrator has stored the relevant information.
 Computer may contain privileged information that doesn’t relate to the search.
24. What is done to prove the relevant fact relating to computer offense?
 By providing the computer itself in court.
 A print out of the information stored on the computer has to be proved in the courts of law.
25. As far as electronic evidence is concerned, relevant evidence is evidence tendered to prove
or disprove a fact in issue. What are the exceptions to the general rule?
 The rule against hearsay evidence.
 Evidence obtained in form of real evidence or documentary evidence.
26. Explain in your own words the meaning of chain of evidence.
It is a factual matrix that proves or disproves a particular assertion and evidence which
supports a factual matrix.
27. Briefly explain how the chain of evidence operates.
The various pieces of evidence which make up the chain are literally strung together into a
sequence of events or pieces of puzzle. A weakness in any particular link in the chain will not
support the case or defense.
28. What does the chain of evidence consist of?
 Interpretive process which is necessary to draw proper conclusions from available evidence.
 Integrity of the physical evidence which includes ensuring that evidence represented in
court is an accurate representation thereof.
29. State the rationale for retaining the chain of evidence.
To rebut allegations of evidence tampering because a printout can be re-traced to its
originating computer file.
30. Distinguish between aspect of mental element in criminal cases and in certain torts.
In criminal cases it may be necessary to prove mens rea while in certain torts it’s necessary
to prove knowledge or negligence.
31. Explain the difference between sanity in criminal law and in law of succession in as far as
relevancy is concerned.
Under criminal law, sanity is relevant to prove the guilt of an accused person or to show
criminal liability while in succession matters; sanity is relevant to consider the validity of a
will.
32. What constitutes state of mind?
 Sanity
 Knowledge
 Intention
33. Give the meaning of bodily feeling.
Anything that can be physically felt by a person in relation to the occurrence of a particular
action.
34. List down instances of state of mind that will be relevant in civil and criminal matters.
 Intention
 Ill will
 Good will
 Malice
35. What is referred to as evidence of similar facts?
This is a rule that a court can use past similar occurrences relating to a particular person to
establish whether a person is guilty or not (S.4 E.A)
36. What is the rationale behind the relevance of similar facts in the law of evidence?
The rule proceeds on a belief that persons do not easily change their habits and that if they
have done similar acts in the past, they are likely to repeat them.
37. Under what circumstances is evidence of similar facts admissible?
  When there is a striking similarity or similarities.
 If the similar facts are so connected with the accused’s participation of a crime.
38. Identify the kind of evidence where guilt is inferred if the facts are inconsistent with one’s
innocence?
Circumstantial evidence.
39. Compare the similarity between the implication of identification in criminal law and in civil
law.
In both criminal and civil law, the identity of the accused must be established and thus the
person has to be the one who committed the particular crime or offense.
40. Mention at least two factors to be considered in criminal law during the process of
identification.
 Mental picture must be the same as when he or she first saw.
 Time taken in identifying the accused is important.
41. Explain the relevant procedure required by police when conducting identification parades.
 The accused may have an advocate or friend present when the parade takes place.
 Witness not to see the accused before the parade.
 Accused to be placed among at least eight persons as far as possible of similar age
and height.
 Witnesses not to communicate with each other after they have been to the parade.
 Exclude every person with no business there.
 Witness to touch the person he or she identifies.
 Act with scrupulous fairness
42. What circumstances have been put into consideration to avoid the dangers of such
testimony by a single witness?
 Presence and nature of light.
 Length of time
 Opportunity the witness had to see the accused.
 Distance between them.
43. Mention the true test for proper identification
The true test is not whether evidence of such a witness is reliable but is rather “whether
evidence can be accepted as free from possibility of error”.
44. Although the law requires all evidence to be direct, a conviction can still be secured on the
basis of circumstantial evidence, because an overwhelming circumstantial evidence is as
good as direct evidence. With the aid of an authority give a valid explanation of this
statement.
The case of Androa Asenwa v. Ug had overwhelming circumstantial evidence which is as
good as direct evidence since the guilt of the accused could be inferred and the facts were
inconsistent with his innocence.
45. Distinguish between a confession and admission.
A confession is an admission made at any time by a person charged with a crime stating a
suggestion or inference that he committed the crime whereas admission under S. 16
evidence act is where statement or document suggests any inference or acknowledgment as
to any relevant fact made by any person and in the circumstances as being true.
46. Outline at least two instances that may water down the weight of an admission if one
proves.
 If one proves there was mistake of either fact or law.
 Proof that one who offered the admission in ignorance and abnormal condition of the mind.
47. Write short notes on the following.
 Retracted statements- This is when the accused admits information recorded but seeks to
take back what he said.
 Repudiated statements- Accused totally denies having made the statement in question.
 “Without prejudice”- Acts as a sort of exclusion clause to exclude the letter writer from
liability from something as long as it was written without prejudice.
48. For an offer to amount to one 'without prejudice' apart from that statement in the letter
or its being adducible from the construction of the statement of certain preconditions.
Give atleast 6 preconditions which must be fulfilled.
 There must be a dispute or negotiations between parties and the statement must
have been written bonafide to settle that dispute.
 If the alternative to accept what was written was committal of an act of bankruptcy,
then the letter may be admitted to prove that.
 If independent facts were admitted, during negotiations, such independent facts are
admissible as admissions even if the letter without prejudice follows.
 A notice without prejudice to annul as a sale following failed acceptance of a given
condition is void and unacceptable
 Criminal libel without prejudice is receivable in evidence.
49. List down the relevant forms of admissions
 By way of affidavits
 Answers to interrogatories
 Declaration in wills
50. Give at least two matters provable by admissions
Admissions can be proved by law and facts or a mixture of both
51. What are instances under which admissibility of oral evidence is put into consideration?
 Where one is required to give oral evidence
 Where an admission is made in attestation of a document
 When the genuineness of the document produced is in question
52. The general rule regarding who can make admissions states “no man can be a witness for
himself but he is the best witness that can be against himself. However there are
exceptions for this rule. Give a valid explanation for this statement.
 S.17 of the evidence act provides statements made by a party to proceedings or
agents authorized to do so, either impliedly or expressly.
 According to order 1 CPR, a person can write a letter authorizing another to conduct
the matter on his behalf.
 S.17 refers to statements made by parties to a suit suing or being sued in a
representative character.
 The section refers to persons with pecuniary interest in the subject matter of the
proceedings and who make the statement in the character of persons so interested.
53. List down the two categories of admissions
 Those made in contemplation of or at the beginning of the trial.
 Those made without a view to the trial.
54. What is the rationale for receiving admissions against the person who made them?
 Admissions are very self-harming, so if made by person against himself then such
declaration is probably true.
 A party's declaration whether for or against his interests may always be taken to be true
as against himself.
55. When and to whom may admissions be made?
  The principle rule is that when a party to a case is suing or being sued personally, any
admissions made by him on a formal occasion is admissible and can be used against him.
 Statements made when someone is acting in representative capacity.
 It is immaterial to whom admissions are made; therefore even statements made to
strangers are receivable as admissions.
 Admissions made to a legal advisor or a wife is receivable if proved by a third party.
56. Under what circumstances may ambiguous admissions come into play and how is it
ascertained by the court.
Where the facts admitted are capable of two different interpretations, both of which are
equally possible, it will then be up to court to decide which of the two meanings is taken
57. Write in your own words what you understand by the term a confession?
A confession is an admission made at any time by person charged with a crime stating or
suggesting an inference that he committed the crime.
58. X told Y that if he made the confession he would be released or acquitted, though the co-
accused will have to be imprisoned. Y agreed and told X, based on a statement that
implicated him to the crime. However X didn't keep his word or promise had Y imprisoned.
Is such a confession admissible?
A confession made as a result of deception and promise is admissible when made in such a
way that the accused isn't likely to be induced to tell a lie.
59. Evidence of a gombolola askari would not be accepted in regards to identify an exhibit of
guns. Why is that so?
Because his carrying a gun as an Askari didn't mean he had specialized knowledge in guns.
60. What is the effect of inducement and threats to make a confession?
Section 26 of the evidence act states that a confession doesn't become irrelevant merely
because it was made under a promise of secrecy of deception on the accused for the
purpose of obtaining it when drunk
61. While conducting a trial in court where the accused was being charged with the offense of
assault, the advocate and accused brought his neighbours and employer to testify that for
5years, he has known the accused as peaceful with a good reputation. Explain whether or
not that evidence will be admissible at the trial.
The evidence will be admissible in criminal cases, the fact that the accused of a good
character is relevant.
62. While conducting a trial, the prosecution adduced evidence that the accused was of a bad
character, and brought his neighbours to testify. Is this admissible?
In criminal proceedings, the fact that an accused person has a bad character is irrelevant.
63. What is the difference between character evidence in criminal proceedings and in civil
proceedings?
 In criminal proceedings it is the character of the accused while in civil cases it can be
either character of plaintiff or defendant.
 In criminal proceedings, character of the accused may depend on whether a defendant
has been convicted based on the past conviction unlike in civil cases where, what has
to be established is his behaviour in respect to civil matters at issue.
64. What is parole evidence rule?
This is the rule that excludes oral evidence by documentary evidence.
65. Give at least three exceptions to the parole evidence
 When a public officer is required by law to be appointed in writing.
 In the proof of wills.
  Existence of any oral agreement constituting a condition precedent for coming into
effect is admissible.
 Document not meaningful and plain evidence may be given to show that it was used in
certain terms.
66. What do you understand by the term self-incriminatory admissions?
These are statements made by the accused implicating himself after the commission of the
crime.
67. Define the following terminologies in the law of the evidence.
 Burden of persuasion: - Is also known as an obligation that remains on a single party
for the duration of claim
 Preponderance of evidence: - Is also known as balance of probabilities is the standard
required in most civil cases
68. The presumption of innocence means three things. What are they?
 With respect to the critical facts of a case, the defendant has no burden of proof.
 The state must prove the critical facts of a case to the appropriate level of certainty.
 The dependant having been charged with a crime and is presented in court is
represented by counsel to face the charges against him.
69. How are interrogations of witnesses conducted in a trial?
 Through direct examination.
 Through cross examination.
 Through examination of witnesses.
70. What is a privilege in regards to the law of evidence?
These are rules that give the holder of the privilege a right to prevent a witness from giving
testimony.
71. State the rationale for privileges.
These are designed to protect socially valued types of confidential information.
72. List down at least 5 types of privileges
 Marital secrets privilege
 The state secrets privilege
 The attorney-client privilege
 Adverse spousal testimony privilege
 Doctor-patient privilege
73. How is judicial notice in a civil case different from that in a criminal case?
In a civil case, court takes judicial notice of a fact that is deemed conclusively proven while in
a criminal case, the defence may always submit evidence to rebut a point for which judicial
notice has been taken.
74. Who is a hostile witness?
It’s a witness in a trial who testifies for the opposing party or a witness who offers adverse
testimony to the calling party during direct examination.
75. What do you understand by the following terms?
 Collateral matters: - They are matters which affect the credibility of a witness.
 Exculpatory statements: - These are made by defendants when incriminating matters
are put to them by the police
76. Examination of a witness falls into three parts. Mention them.

Examination in chief: -Where a witness for one party is called and examined by that party’s council.

Cross examination: -This is conducted by council for opposing party.

Re-examination: -Counsel who examined the witness in chief can re-examine that witness in order to
clear up any misunderstandings or ambiguities that may have arisen as a result of cross examination.

77. What condition has to be satisfied before a child is rendered compatible in a criminal trial?
In a criminal trial, a child is rendered compatible provided he or she understands the
questions and can give understandable answers to them.
78. What do you understand by the term burden of proof?
It is a party’s duty to prove a dispute asserted or charged and it includes both legal and
evidential burden
79. Distinguish between legal burden and evidential burden of proof.
Legal burden is the burden to prove or disprove a fact in issue, while evidential burden is the
burden that is to produce evidence on alleged facts.
80. Distinguish between burden of proof in civil proceeding and burden of proof in criminal
cases.
 The burden of proof in civil cases is that of the plaintiff and must demonstrate
their version of facts to be true by a preponderance of evidence while in criminal
cases, the burden of proof is very high and it’s proved by the prosecution, beyond
reasonable doubt.
 Burden of proof is much greater in criminal trial than it is in civil trials, because
there is more at stake like the person’s life and freedom.
81. Who is a spouse?
Under s.12 (1) of the evidence act, husband and wife mean respectively the husband and
wife of a subsistent marriage recognized as such under the marriage act and customary law.
82. Is a spouse a compatible and compellable witness? Explain your point of view in civil
proceeding.
In all civil proceedings, the husband and wife are both competent and compellable
witnesses.
83. Define the following terms;
a. Real evidence: - Real evidence is a thing; it is usually a thing that was directly involved in
some-event in the case, such as a murder weapon.
b. Demonstrative evidence: - It is evidence that demonstrates or illustrates the testimony of a
witness.
c. Testimonial evidence: - Testimonial evidence consists of what a competent witness at the
proceeding in question says in court
84. Explain the difference between factum probendum and Factum probans. State its
admissibility in evidence
Factum probendum refers to the principle of fact or fact in issue, for example in a case of
murder the principle of factum probendum would be death while Factum probans means
those other facts with evidential value that may help to explain the principle fact for
example if death is a principle fact and x was seen with a panga at the time, then that is the
factum probans and they are both admissible in court as evidence.
85. State the rationale behind the rules of evidence.
 To establishing who has the burden of proof in particular instances
 To prescribe facts which may be proved
 To prescribe facts to be excluded from consideration of the court e.g. privileged
information.
 To prescribe methods by which proof may be effected.
 To prescribe the extent of proof required in a particular case.
  To prescribe the effect of certain pieces of evidence.
86. What is the res gestae principal and what forms it?
Res gastae are those other facts which are in relationship with a fact in issue and both
relevance and admissibility form the res gestae principle.
87. What is the rationale for requiring corroboration for accomplice evidence?
 Their evidence is untrustworthy before court as they are likely to tell lies in order to
shift guilt from him.
 As a partner in crime with accused, an accomplice is not likely to value his oath.
 If an accomplice usually gives evidence because of the hope or promise to be pardoned
or treated leniently by the prosecution.
88. What do you understand by the term evidence?
It is the means by which an allegation is proved or disproved. There are different modes of
evidence which may include; document, oral evidence, and opinion evidence among others.
89. With reference to evidence obtained illegally or by unfair means. State the two conflicting
views.
 Evidence which is admissible should not be excluded because of the means by which it
was obtained.
 Such evidence should be excluded, to admit it might encourage obtaining evidence by
such means.
90. Explain the relevant procedure required by police when conducting identification parades.
 That the witness does not see the accused before the trial.
 The accused is placed among at least eight persons of similar age, height and class of
life.
 See that the witness touches the person he or she identifies.
91. What is the rationale for the exclusion of oral evidence?
It is that courts of law must not attempt to write agreements but should rather enforce
agreements written by parties.
92. What are the two ways an accused person can retract a confession?
 By clear and positive express repudiation.
 By implication.
93. When does the best evidence rule apply?
The best evidence rule only applies to proof of the content of the document and not to cases
involving the existence or identity of the document.
94. Who is an officer in custody of a document?
This is a person in charge of the department under which the original document is kept but
section 75 of the Evidence Act widens the meaning to include any officer who by ordinary
course of his duty is authorized to deliver the copies in issue
95. What is the importance of a voir dire in the law of Evidence:
This is the procedure used to determine for example the competence of witness to testify or
the admissibility of a disputed confession.
96. According to the words of Glaisdale in DPP V Kiibourne (1973) what is relevant evidence?
Relevant evidence is that which makes the fact requiring proof more or less probable, it was
defined by Glaisdale in the following words evidence is relevant. If it is logically probative or
disapprobative of some matter which requires proof
97. Give the meaning of explanatory and introductory facts
Facts which are necessary to explain or introduce a fall in issue or a relevant fail, or which
rebuts or supports an influence suggested by such a fall or which establish the identity of
anything or person whose identity is relevant or which fixed the time or place at which any
 fall in issue or relevant fact happened or which shows the relationship of parties by whom
such fact was translated are admissible in no far as they are necessary for that purpose.
98. What is meant by means of proof as evidence?
That which makes evident a fact is the means by which it is established as true, that is, the
means of proof. They include statements of witness in court, statements in writing among
others.
99. Distinguish between the following;

Preappointed and casual evidence.- Preappointed evidence means that procured in anticipation of
its use, and it may apparently include either that arranged privately

Prima facie and conclusive evidence- Prima facie evidence, if it is itself accepted as reliable,
establishes a fact in the absence of contradictory evidence and it may discharge the burden of a
party. Conclusive evidence on the other hand is merely the description of a particular proof.

Direct and circumstantial evidence. - Direct evidence means evidence of a fact disputed in a
litigation, for example, evidence that the defendant’s car was on the wrong side of the highway at
the time of a road accident. Circumstantial evidence means evidence of facts from which a disputed
fact can be inferred.

100. Distinguish between an admission and a confession.

An admission means that a person has conceded, expressly or impliedly, the truth of an
alleged fact whereas a confession is an admission made by a person charged with a crime,
stating or suggesting the inference that he committed the crime.
101. Illustrate the meaning of corroboration.
It means confirmation of one fact by another independent fact.
102. What is the rationale behind judicial notice.
Judicial notice means the acceptance by a judicial tribunal of the truth of a fact without
proof on the ground that it is within the tribunal’s own knowledge. It thus has the effect of
limiting the scope of evidence.
103. List five instances where court may take judicial notice of matters.
 All Acts and ordinances enacted
 All orders of council laws, statutory instruments or subsidiary legislation
 The territories of the commonwealth
 The course of proceeding of parliament.
 The existence title and national flag of every state or sovereign recognized by
parliament.
104. Distinguish between burden of proof and standard of proof.
Burden of proof is an obligation to adduce evidence of a fact and it lies on whoever desires
any court to give judgment on the existence of facts which he asserts whereas a standard of
proof is based on the balance of probabilities in civil cases and in criminal cases the accused
must prove beyond reasonable doubt.
105. What is a leading question?
A leading question actually suggests an answer or substitutes the words of the questioning
attorney for those of the witness. Many leading questions call for answers of either "yes" or
"no."
106. What constitutes the lay opinion rule in evidence?
Usually witnesses are not permitted to express their opinions or draw conclusions, a court
will permit a person who is not testifying as an expert to testify in the form of an opinion if
 the opinion is both rationally based on his perception and helps to explain the witness's
testimony.
107. Under what circumstances is hearsay evidence admissible?
 Dying declarations
 Statements made in the ordinary course of business.
 Statements made against the maker’s interest.
 Public rights and private records.
 Pedigree declarations or family affairs.
108. Show the circumstances when court can admit opinion evidence
 Expert evidence-when a court has to form an opinion upon a point of science or art.
 Opinions of ordinary witnesses
109. What is the purpose of a judge conducting a trial within a trial?

The purpose of a trial within a trial is to decide upon the evidence of both sides as to whether the
confession should be admitted. Court cannot simply looking at the statement conclude that it was
made voluntarily. A statement that is made voluntarily is one made absolutely free from inducement
influence of whatever nature.

110. Mention three circumstances where an attesting witness to a document need not
be called?
 Wills, that is, where all formalities are followed, the attesting witness need not be called
 Where execution has been admitted for purposes of the trial.
 Where none of the witnesses is alive.
 Where the document is more than 30years old
111. What is presumptive evidence with relation to oral testimony and admissions?

Contents of a document may be proved presumptively especially where the original document is
lost. If one’s conduct implied that he was relying on the document he will be presumed to have
admitted it.

112. What is “a fact” in evidence

A fact means and includes; anything, state of things, or relation of things, capable of being perceived
by the senses and any mental condition of which any person is conscious.

113. Distinguish between repudiated and retracted confessions.

Repudiated Confession is one in which the accused avers that he never made it while a retracted
confession occurs when an accused makes a statement which he later seeks to take back on ground
that he either made it out of mistake or did not do it voluntarily.

114. What factors would affect the validity of a confession?

 Induced confessions i.e due to fear or by force
 Lies, promises and threats.
 False confession especially expert testimony
 Interrogation.
115. The general rule is that all ordinary witnesses are compellable to testify on matters
asked of them during proceedings. What are the exceptions to this rule?
 A spouse cannot testify against his/her spouse i.e private privilege
 Professionals enjoy the privilege not to disclose any communication between them and their
client’s e.g doctors.
  Government secrets are protected from disclosure during court proceedings.
116. What do you understand by the term “probatioviva”?

This is oral evidence, defined as all statements required by court to be made before it by witnesses
in relation to matters of fact under inquiry.

117. Write short notes on the following;

Testimony

 A sworn testimony is a testimony given by a competent witness after taking an oath.

 An un Sworn testimony is one given by a competent witness without taking an oath.
118. Explain the procedure of court with regard to child witnesses.
 To determine the age and make a finding on the record.
 To determine whether the child understands the nature of an oath.
 If the court is satisfied then he can be sworn and affirmed.
 The court will then have to question the child further to find out if he understands the duty
of speaking the truth.
119. What is insufficient evidence?

This is evidence that is so weak that no reasonable man could decide an issue in reliance upon that
evidence alone

120. What is the rationale of the parole evidence rule?

The object of reducing oral terms into writing is to perpetuate the memory of what is written down
and also to provide permanent proof of which thus to effectuate this principle, the document itself
must be produced as evidence

121. Give at least five instances for rejecting hearsay?

 The person who makes the statement cannot be present to be cross-examined to establish
the veracity of the statement. The person who reports may do so carelessly or maliciously.
 There is a likelihood of distortion of the original statement. It may be twisted depending on
the interests of the witness.
 There is lack of opportunity of judging the powers of perception of the person who made the
statement
 It may not be possible to establish the meaning of the words used because the third party
may have used the words in a special sense. The persons reporting may give a false meaning.
 There is no opportunity to judge the demeanor of the person who made the original
statement. You cannot judge the tone of the voice used, looks on the face of the person
122. Illustrate the meaning of motive and how it’s established?
 It is what influences a person to act in a particular way, which may constitute a fear or desire
to bring about a particular activity.
 It is a mental state derived from circumstances and relationships, and may be established
from one’s words or demeanor.
123. Briefly explain how the chain of evidence operates.

The various pieces of evidence which make up the chain are literally strung together into a sequence
of events or pieces of puzzle. A weakness in any particular link in the chain will not support the case
or defense.
 124. What factors have been put into consideration to avoid the dangers of such
testimony by a single witness?
a) Presence and nature of light.
b) Length of time
c) Opportunity the witness had to see the accused.
d) Distance between them.
125. What do you understand by the term relevance and admissibility of evidence?

This refers to the kind of evidence relevant to prove a particular fact. However not everything
relevant is admissible yet for something to be admissible it must be relevant.

126. There are 3 exceptions which enable court to establish facts by special means.
State them.
a. Formal admissions are made with deliberate purpose of dispensing with proof, but informal
admissions are usually the subject of proof.
b. Court may take judicial notice of fact.
c. In case of presumptions and thus substitute for evidence.
127. If a judge relied on the evidence of a child of twelve years to convict an accused of
murder and did not warn himself of the need to corroborate the child’s evidence would
this be admissible as evidence?

Unsworn evidence of children of tender years must be corroborated as a matter of law but in
practice all evidence of children of tender years whether sworn or unsworn would require
corroboration and courts have held that even when there is sworn evidence there is need for
corroboration.

128. What is the rationale behind the relevance of similar facts in the law of evidence?

The rule proceeds on a belief that persons do not easily change their habits and that if they have
done similar acts in the past, they are likely to repeat them.

129. The legal burden never shifts except where presumptions operate. Justify the legal
efficacy of the general rule?

A legal burden may be placed on the accused in relation to a specific defence raised, this is the new
legal burden requiring the defendant to prove on the balance of probabilities.

130. Distinguish between Competence and Compellability of Witnesses

Competence refers to the capacity of a person to give evidence while compellability refers to
whether a particular person can be subjected to the compulsory processes of court

131. Are the following categories of witnesses competent to testify in court?

a) A deaf-mute: - Yes. They may give their evidence in any other manner in which they can
make it intelligible as by writing or signs in open court. It is deemed oral evidence (Hamisi
s/o Balum vs. R)
b) The Accused person: - He is a competent witness for himself but not compellable to give
evidence at his trial.
c) Accomplices: - An accomplice is a competent witness as against an accused person.
d) Spouses: - A spouse is a competent and compellable witness for the defence of his/her
spouse, whether they are charged jointly with others. S.120, Evidence Act
 e) Children: - A child is not a competent witness if by reason of his or her age, the child cannot
understand the questions put to him or her.
132. What do you understand by the term voire dire?

A voire dire is a preliminary examination of prospective witnesses under oath to determine their
competence or suitability to testify in court.

133. What do you understand by the term Privilege with regard to witnesses?

Privilege refers to immunity from compellability to testify in a proceeding.

134. What are the different categories of privilege?

a) Private Privilege: - This is enjoyed by private persons by virtue of their personal status (e.g.
husband and wife cannot be compelled to testify about communications made during the
subsistence of their marriage, even after separation.)
b) Professional Privilege: - This is immunity granted to professionals from compellability to
disclose communications made between them and their clients (e.g. A doctor and
information about his patients)
c) Public Privilege: - This protects government from disclosure during court proceedings. It
deals with diplomatic and presidential Immunity. S. 122-123 Evidence Act
135. What do you understand by the term Burden of Proof?
 It is the obligation to prove facts (i.e. evidential or provisional burden)
 It is also the duty to prove a case (i.e. legal burden) *note that this does not shift and is
always on the plaintiff.
136. How is it different from “standard of proof”?

While the burden of proof is the obligation to prove facts or a case, the standard of proof is the
degree to which one must aspire to prove said facts or case once the burden has been so imposed.

137. Distinguish between the Standard of Proof in Civil cases and that in Criminal Cases

In civil cases, the standard is to prove the case on the balance of probabilities/preponderance of
doubt while in criminal cases the standard is to prove the case beyond reasonable doubt.

138. What is Corroborative Evidence?

Corroborative evidence is evidence which tends to support or confirm other evidence already given
in court.

139. What are the key elements regarding corroborative evidence?

 It has to be from an independent source -R vs. Bakersville
 It should connect the accused to the commission of the offence
 It needn’t corroborate the whole story – R vs. Manilal
140. When is corroboration necessary?
 As a matter of law, i.e. where there is a statutory requirement
 As a matter of judicial practice
141. When is corroboration necessary as a matter of law?
 Under the Penal Code Act (e.g. for the offences of Treason, Sedition, Perjury, Procuring
defilement
 Under the Children’s Act
 Under the Traffic and Road Safety Act
142. When is corroboration necessary as a matter of judicial practice?
  Accomplice Evidence- R vs. Bakersville
 Evidence of the victim in Sexual Offences- Chila vs. R
 Dying Declarations
 Retracted and Repudiated Confessions- Turwamoi vs. Uganda
 Identification of a single witness
 Evidence of a child of tender years
143. Distinguish between Attested and Unattested documents

Attested documents are documents which signing or execution must be witnessed by any other
person than the person(s) who signed them for them to be valid while an unattested document is a
document not required by law to be witnessed in order to be valid.

144. What is the Best Evidence Rule?

The rule states that the Best evidence which the nature of the case permits must be given.

For instance where the original document is available, it must be produced.

145. When may secondary evidence be given to prove the contents of a document?
 Where the document is in the hands of the adversary who refuses to produce it on notice
 Where the original is in the possession of a person out of reach
 Where the original is in the hands of a person legally bound to produce it but does not do so
after being given notice.
 The original is lost and cannot be found
146. What do you understand by the following categories of evidence?

Admissions and confessions: - These are instances where a person’s own words or statements may
be adduced in evidence against him or her. However these modes of evidence should not be induced
or influenced in any ways.

Evidence of opinions: - It is a type of evidence that is got or obtained from one’s way of observation.
An example can be expert opinion like a doctor called to give evidence about a post-mortem in a
murder case.

Character evidence: - This refers to a general disposition, reputation or behaviour or conduct held by
a cross-section of the public

Hearsay evidence: - This is a kind of evidence is one that is looked at for the purpose of establishing
its truthfulness the person who was told by another is being examined

Documentary evidence: - This deals with all documents which are produced for the inspection of the
court. It can either be primary which engages original documents or secondary where copies of the
original documents are used as evidence.

147. What do the following terminologies mean?

Document: - This refers to any matter expressed or described upon any substance by means of
letters, figures, and marks or by more than those means, intended to be used or actually used for
the purpose of recording the matter.

Fact: - Anything, state of things or relation of thins capable of being perceived by the senses

It may also be any mental condition of which any person is conscious ie both physical and non-
physical
Fact in issue: - This refers to any fact which, either by itself or in connection with other facts, the
existence, nonexistence nature or extent of any right liability or disability asserted or denied in any
suit or proceeding necessarily follows

Prima-facie evidence: - This refers to evidence which establishes a fact and that fact will be
presumed to exist unless there is contrary evidence.

Conclusive evidence: -This is evidence if adduced, cannot be contradicted ie it is not enough to lead
to a finding in a particular direction

Real evidence: - This refers to evidence of a material nature which can be seen, touched, smelt or
felt.

Direct evidence: - It means evidence of that person who saw, felt or heard the fact in issue. It also
means the assertion of a witness about a fact of which he or she has direct knowledge offered as
evidence of the truth of what is asserted.

Circumstantial evidence: - It means any fact or fact relevant to the issue from which the existence of
fact in issue may be inferred.

148. What do you understand by the term Estoppel?

It is a primary rule of evidence whereby a party to litigation is prevented from denying something
wish he had previously asserted to be true. – Nurdin Bandali vs. Lombark

149. List any two characteristics of estoppel?

 It must be reciprocal and mutual (i.e. bind both parties to litigation)
 It must be certain
 It cannot be used to circumvent the law
 Conflicting estoppels cancel each other
 Estoppel is NOT a cause of action (shield and not a sword)
 Estoppel arises only as a matter of fact, not law.
150. What are the three recognized categories of estoppel?
 Estoppel by conduct (includes estoppel by representation* and estoppel by
negligence*)
 Estoppel by deed
 Estoppel by judgement or record
151. Define judicial notice

This is the process by which courts take cognizance of matters which are so notorious or clearly
established that formal evidence of their existence is unnecessary. It is essentially an exception to
the rule that all facts in issue must be proved by evidence.

152. What matters may court take judicial notice of?

 Matters of a public or universal nature which are so well known that courts will not
require formal proof thereof
 Matters of common notoriety
 There are three broad categories, legal matters, constitutional matters, customary
matters
153. Under the doctrine of judicial notice, Court CAN take into account any personal
knowledge of private matters- true or false?
False
 154. Are documents exclusively restricted to words or pictures on paper?

No. in modern law of Evidence even signposts, tombstones, video and audio recordings are regarded
as documents- Salau Dean vs. R.

155. What do you understand by a presumption in Evidence Law?

A presumption is the assumption of truth of a fact. It is a conclusion which must be drawn until the
contrary is proved.

156. What are the categories of presumptions?

 Presumption of fact
 Irrebuttable presumption of law
 Rebuttable presumption of law
157. List any three rebuttable presumptions of law
 Presumption on favour of the continuance of life- S.107. Evidence Act
 Presumption of death- S.108
 Presumption of Continuance of Human Affairs once they are shown to exist- S.109
 Presumption that possession of property is evidence of ownership- S.110
 Presumption of legitimacy- S.112
158. Define Irrebuttable presumptions of law

These refer to rules of substantive law or procedure expressed in presumptive form and cannot be
changed, for example under s.14 of the Penal Code Act where it is conclusively presumed that no
child under seven years can be guilty of any criminal offence.

159. How do the above differ from rebuttable presumptions of law?

With Rebuttable presumptions of law the conclusion as to the existence of the presumed fact is only
drawn in the absence of evidence to the contrary while under irrebuttable presumptions, once the
basic fact is established, that is legal proof of its existence.

In brief-Irrebuttable: Establishment= Existence

Rebuttable: Establishment + Absence of evidence to the contrary = Existence :-)

160. Name two types of questions that court cannot allow counsel to ask a witness
 Indecent/scandalous questions- s. 150 Evidence Act
 Questions intended to Insult or annoy- s. 151
161. What is meant by ‘judgement in rem’?

This is a judgement which affects a thing, or decides the status of a thing. Examples include
bankruptcy orders. Such a judgment operates universally as the rational is that the legal status of
things should be left in no doubt.

162. Is it identical to judgement in personam? If so, proceed, if not, explain why.

It is NOT. Judgements in personam are between parties and include personal actions, for instance
under contract, tort.

Judgements in personam are binding on only the persons involved and the subject matter of the
action, unlike those in rem which are universally binding.
Secondly, the estoppel that arises from a judgement in rem is applied for or against the whole world
while that from judgements in personam applies ONLY to parties involved in the suit.

Answer the next six questions by writing whether the statement is true or false.

163. Where corroboration is required by statute, courts will not convict in absence of
such corroboration
True
164. An accomplice is a disinterested party whose testimony should be taken as pure
truth and court should convict on the testimony without further inquiry.
False
165. 88. Oral Evidence takes precedence over documentary evidence and CAN alter the
contents of a written document
False
166. Before one uses the shield of estoppel by negligence, one must prove the
existence of a duty of care owed to him or her by the other party.
True
167. Opinion Evidence may be given by anybody alive who has an opinion on the
matter in court.
False
168. The order of examination is up to the witness and he can in fact opt to be cross-
examined first, then re-examined and end with the examination-in-chief.
False (ref s. 137 Evidence Act)
169. What is a leading question?

This is any question suggesting the answer which the person putting it wishes or expects to receive.
s. 140

170. Can leading questions be asked?

Leading questions can be asked ONLY during the cross-examination s. 142. To ask a leading question
during the Examination-in-chief or Re-examination, court permission must be granted first.

171. What is the rationale for courts requiring corroboration for evidence given by a
child?

Children can easily be coached or fooled. They are impressionable and susceptible.

172. The general rule regarding character evidence is that such evidence is
inadmissible. However there are exceptions. List the various exceptions.
1. Where the accused person or his /her agent puts his /her character in issue.
2. Where there is evidence of committal and conviction of the accused for a previous similar
offence.
3. Where the nature or conduct of the accused’s defence is such as to involve imputations on
the character of the complainant or the witnesses of the prosecution.
4. Where he/she has given evidence against any other person charged with the offence as that
which he/she is charged.
173. What are the modes of procuring evidence?
 Testimony of witnesses (oral evidence)
 Using exhibits
 Documentary evidence
 Expert opinions
174. What are the particular aspects of res gestae?
 Facts forming the same transaction.
 Facts which are the occasion, cause or effect of facts in issue S.6 UEA
 Motive preparation and conduct S.7 UEA
 13. CRIMINAL Law summary.
Definition of the word Criminal Law

Criminal law is defined as the law body of law defining offenses against the community at large,
regulating how suspect are investigated, changed, and tried and establishing punishments for
convicted offenders.

Elements of criminal law

Politicality

This is regarded almost universally has an essential element in criminal law. The rules of trade union,
churches, mosques or family are not regarded as criminal law nor are violation of these rules regarded
as crime. In Uganda the laws promulgating body is parliament. Article 79 (1) provides that parliament
has power to make laws on any matter for the peace, order, development and good governance of
Uganda.

Specificity

It is included as an element in the definition because of the contrast in respects between criminal law
and civil law. The civil law may be general. The criminal law on the other hand generally gives a strict
definition of specific act.

Uniformity

This is included in the definition of criminal law because law attempts to provide even handed justice
without respect to persons. This means that there is no exception made to criminal liability because
of person social status.

Penal sanction

This refers to the notion that violators will be punished or threatened with punishment by the state.

Punishment under the law differs from that enforced by mobs

Distinction between criminal law and Civil law

We have already seen what is meant by criminal law from the above definition. However looking at
civil law, according to Osborne’s Law Dictionary the term civil law means Roman law, the corpus juris
civilis; while according to professor Williams, civil law is that phrase which is used in several meanings.
It may mean the law which is not criminal law.

The following are some of the distinction between criminal law and civil law

1. Criminal law is categorized as public law. This is because it is intended to serve societal or
public interest .while civil law is invariable on the private law side.
2. Secondly in criminal law, criminal proceedings are brought in the name of the state e.g. Rex V
Job. While on civil law, civil suit are usually brought by the aggrieved party, e.g. Job V Joan
3. In criminal law the wrong is usually referred to as a crime, while in civil law it is considered to
be civil wrong.
4. In criminal law a person (state) who intends to sue usually states the offence or crime in a
document referred to as a charge sheet or indictment. While in civil suit, the claim is usually
contained in a declaration. (In English law plaint.)
 5. In criminal law the prosecutor pursues the case on behalf of the crown or state. On the other
hand in civil law, civil action or suits are usually brought by the plaintiff on his or her behalf.
6. In criminal matters the standard of proof is beyond reasonable doubt. While in civil law, the
standard of proof is on the balance of probabilities.
7. In criminal matters a person can either be referred to as accused or defendant before court.
While on civil matters the person is usually referred to as defendant.
8. Finally, in criminal matter when a person is found to be guilty, he or she can be sentenced,
imprisoned or fined or both. While in civil matters a person can only be found to be liable and
court may usually order the liable person to pay damages and costs.

The purpose of criminal law

 To forbid and prevent conduct that unjustifiably inflicts or threatens substantive harm to the
individual or public interests.
 To subject to public control persons whose conduct indicates that they are disposed to
 Commit crimes.
 To safeguard conduct that is without fault from condemnation as criminal.
 To give a fair warning of the nature of the conduct declared to an offence.
 To differentiate on reasonable grounds between serious and minor offences

Nature and the scope of criminal law

Criminal law deals with the punishment of people who commit offences or crime.

A crime is defined as an act default or conduct prejudicial to the community the commission of which
by law renders the person responsible liable to punishment by fine or imprisonment in special
proceedings, normally instituted by officer in the service of the crown or state.

Parties to a crime

When an offence is committed each of the following person is deemed to have participated in the
committing the offence and to be guilty of the offence and may be charged with actually committing
it. These persons are

 Every person who actually does the act or makes the omission which constitutes the offence
 Every person who does or omits any act for the purpose of enabling or aiding another person
to commit the offence.
 Every person who aids or abets another person in committing the offence.
 Incorporated corporation are also considered to be legal person. In Salomon V Salomon and
company court held that once a corporation is incorporated it becomes a person distinct from
its members.

Criminal liability

The law on criminal law in mainly categorized in to two main principles. Actus Reus and Mens

Rea. The cardinal principle of criminal law is embodied in Latin maxims actus non facit reum,

nisi mens sit rea. That means that, an act does not make a man guilty unless he has a guilty mind.

Thus two points are involved in this maxim.

 The outward conduct which must be proved against the accused which is known as actus reus
  The state of mind which the accused must be proved to have had at the time of the act
(Mensrea)

Actus reus

Nature of actus reus

Actus reas includes all elements in the definition of crime except the accused mental element. It
follows that actus reusis not merely an act. It may indeed constitute in the state of affairs not including
an act at all, much more often the actus reus requires proof of an act or omission (conduct). The
definition of offences often specifies surrounding circumstances such as time of place which are
essential to render the act criminal.

Acts and omissions

An act that is doing of something is the most common basis of actus reus. However, the nature of the
requisite act varies from offence to offence.

Omissions

An omission i.e. failure to act is a less common basis of criminal liability than a positive act.

Historically the criminal law has been concerned with prohibiting and punishing positive actions rather
than with imposing duties to act and punishing failure to do so. Recent time however, it has
increasingly concerned its self with failure to act.

An omission to act can give rise to liability if the definition of an offence actually specifies an omission
to act

Mens rea

Before the 12th century a person could be held liable for many hams, simply because his or her conduct
caused them, without proof of any blame worthy state of mind. Under the influence of canon law
church, a change took place and courts began to require proof of an element worthy blame wise a
guild mind. In criminal law such is known has mens rea.

Mens rea is a technical element and it is translated as guilty mind. However this is misleading. A person
may have mens rea without feeling of guilty on his or her part.

Intention

Where the definition of actus reus of the offence charged requires the accuses conduct to produce a
particular consequence he has a sufficient mental state as to that consequence if he intended it to
occur. Nevertheless, intention was defined in Mohans case, as a decision to bring about in as far as it
lies within the accusses power a particular consequence no matter whether the accused desired that
consequence of his act or not. Alternatively intention can be described as the accused purpose or aim.

Negligence

A person acts negligently when he brings about a consequence which a reasonable and prudent man
would have foreseen and avoided

Recklessness

This is the deliberately taking of unjustified risk. A man is reckless in respect of the consequence of his
act, when he foresees that it may occur but does not desire it nor foresee it as virtually certain.
Coincidence of actus reus and mens rea

The mens rea must coincide in point with the act which causes the actus reus. Mens rea implies an
intention to do a present act not a future act.

The principle of legality

This is provided under Article 28 (12) which provides that “Except for contempt of court, no person
shall be convicted of a criminal offence unless the offence is defined and the penalty for it prescribed
by law”.

The burden of proof in criminal cases

The general rule is that the prosecution has the burden of proving beyond reasonable doubt that the
accused has committed actus reus of an offence with mens rea required for it. Prove of the
commission of actus reas require prove of this entire element. The burden of proof is also described
as persuasive burden while the burden of adducing evidence is described as evidential evidence. In
Woolmington V DDP, the court initiated change regarding the burden of proof, which hitherto was
accused. The court observed that the burden of proof should shift from the accused to the prosecution
to prove (a) the act, (b) unlawfulness and (c) the state of mind. The importance of this rule cannot be
overemphasized because:

 Conviction results in the right of the accused being affected.

 Conviction gives rise to a record, which stigmatizes the life of the individual.
 Crime is an offence against society and before society can show that accused has injured it,
the crown, representing society; should prove it, hence the adage that “ it is better for guilty
persons to be freed than innocent person to be convicted.

Strict liability

Crimes which do not require intention, reckless or negligence has to one or more in actus reus are
known as offences of strict liability. An offence is regarded as that of strict liability if no mensrea need
to be proved as to the single element. Crimes of strict liability are almost a creation of the statutes. In
Woodrow where the accused was found guilty of having in his house adulterated tobacco although he
did not know. The prosecution emphasized the purpose of statute. Court held that the crime was still
committed even if there was no fraud or intention.

Vicarious liability

This means that the employers are responsible for the action of the employees as long as they are
within the course of employment. Therefore, in order for the employer to be responsible, the must
be master and servant relationship. In addition to the above, the various liability usually apply to the
law of tort. However, vicarious does not apply in criminal law.

The leading case in civil law is Lloyd V Grace, Smith and company, where a solicitors’ managing clerk,
without the knowledge of his employer, induced a widow to give him instruction to sell certain
property and to hand over the title deed. Court held that since the clerk was acting within the scope
of his authority his employer was liable.

Exception to the general rule

The employer is not liable in cases of public nuisance and criminal matters.
General defenses in criminal law.

Ignorance of the law

The principle of ignorance of the law is not a defence is provided for by the penal code. Thus It section
6 provides that ignorance of the law does not afford by excuse for any act or omission of which would
otherwise constitute an offence unless knowledge of the law by the offender is expressly declared to
be element of the offence. One of the presumptions that the law puts forward is that, everybody is
presumed to be aware of the law hence ignorantia juris non excusat. However in general ignorance of
the law doesn’t afford a defence because

 There is difficulty in proving the accused did not know

 The risk would make it advantageous for people refrain from acquiring knowledge of their
legal duties.

Necessity

This can be defined as threats of death or even serious physical injury that makes a person do a given
act in order to live.

It is said that necessity knows no law. Necessity does not afford a defence in murder. In Dudley and
Stephens court found the two guilty of murder because of eating a young boy and their defence of
necessity could not hold.

Furthermore courts have also made it clear that necessity is not a defence in theft of clothing and
food. In Southwark London Borough V William, lord denning justified the rule on the ground that “if
hunger were once allowed to be an excuse for stealing, it would open a door through which all kind
of lawlessness and disorder would pass.

Claim of right

Section 7 of the penal code provides that ‘a person is not criminally responsible in respect of an offence
relating to property if the act done or omitted to be done by the person with respect to the property
was done in the exercise of an honest claim of right and without intention to defraud.

Mistake of facts

This is provided under section 9 (1) of the penal code which stipulates that, “a people who does or do
an act under an honest and reasonable, but mistaken, belief in existence of any state of thing is not
criminally responsible for the act or omission to any greater extent than if the real state of thing had
been such as he or she believed to exist”.

Insanity

It is provided under section 11 of the penal code which provides that a person is not criminally liable
if at the time of act or omission he or she suffers from a disease that affects his or her mind. However
if the disease does not affect the mind the person will be liable. In Mcnaghten case, Mcnaghten was
acquitted on the ground that at the time he committed the offence he was insane.

Intoxication

This is provided by section 12(1) of penal code provides that except as provided in this section,
intoxication shall not constitute a defence to criminal charge. (2)Intoxication shall be a defence to any
criminal charge if by reason of the intoxication the person charged at the time of the act or omission
complained of did not know that the act or omission was wrong or did not know what he or she was
doing and (a) the state of intoxication was caused without his or her consent by the malicious or
negligent act of another person; or(b) the person charged was by reason of intoxication insane,
temporarily or otherwise, at the time of such act or omission.

Compulsion

Section 14 of the penal code where a person is compelled to commit an act by use of threat or grievous
bodily harm his or her acts are not considered to be criminal. However threats of future injury are not
excused.

Use of force to protect property and person

This is provided under section 15 of the penal code, which provides that, subject to any express
provision in this code or any other law in Uganda, criminal responsibility-a. (a) for the use of force in
the defence of person and property; and (b) in respect of rash, reckless or negligent acts,

Shall be determined according to the principle of English law

Section 16 of the penal code further provides that a person can use reasonable force in effecting
arrest.

Force causing personal injury, damage to property, or even death may be justified or excused because
the force was reasonably used in the defence of certain public or private interest. The general principle
is that law allows such force to be used as reasonable in the circumstances as accused believed them
to be, whether reasonable or not.

Therefore the test for reasonable force is objective

 What is reasonable force depends on:

 Nature or degree of force used,
 Seriousness of the evil to be prevented

Automatism

Generally it is a defence that act or omission or event with which the accused is changed was
involuntarily. In Hill v Baxton, court held that a man could not be said to be driving if he had be attacked
by a swarm of bees.

OFFENCES

Offences against property

Theft

Section .259 PCA taking anything with intention of depriving the owner. Mens rea in theft; Consider
Haslett V Republic (1967) EA 796 (the said thing must have value). Actus reus; proof that accused acted
dishonestly and with intention of permanently depriving the owner of his property.

Robbery

It is provided under Section.285 Penal Code Act & Section 286 for punishment. It’s the use of force or
threat of use of force while stealing.

Ingredients
  There was theft
 The theft was accompanied with force or threats of violence
 The accused caused grievous harm in the robbery
 The accused committed the robbery

Aggravated Robbery

It’s a capital offence tried by the High court. Section.286 (2) PCA provides for the circumstance under
which an offence amount to aggravated robbery. Which include use of deadly weapon before the
robbery or after the robbery.

Section.286 (3) PCA defines deadly weapon Includes anything adopted for shooting, stabbing, cutting
or anything when offensively used can cause death.

Embezzlement

The fraudulent conversion of one’s property by another who has its lawful possession. It occurs after
taking possession, not before, not during. Consider S.268 PCA and the anti-corruption Act

Ingredients;

 The accused was the employee of the victim

 The accused received & took the property on behalf of employer
 The accused had intentions of permanently depriving his employer of the property.

Causing financial loss

Consider Section 269 of penal code. An act or omission to act that cause’s financial loss is an offence

The offence covers; Government, Bank, Credit institutions, insurance company or a public body.

Ingredients;

 There must be an act or omission

 It was done in the course of employment
 The accused is responsible
 The person must have been employed by the above organizations
 The accused knew that the act/omission would cause financial loss

OFFENCES RELATING TO ADMINISTRATION OF JUSTICE

Perjury

This is the swearing will fully, absolutely and falsely in a judicial matter material to the issue or cause
in question. Section 94 of PCA states that any person who in any judicial proceeding knowingly gives
false testimony touching any matter which is material to any question pending in that proceeding
committees a misdemeanour termed perjury

It’s immaterial whether the testimony is given on false or any other assumption given by law

The false testimony is given orally or in writing

The court or tribunal is properly constituted or is held in a proper place

The person who gives a testimony is a competent witness or not or whether the testimony is
admissible in the proceeding or not
Section 94 (3) provides that any person who aids and abates procures or suborns another person to
committee perjury commits a misdemeanour termed as subornation. Section 97provides for a
punishment to be 7years

Contempt of court

Criminal contempt consisting of words or acts obstructs or tending to obstruct the administration of
justice contempt in procedure consisting of disobedience to judge’s orders or other process of the
court. Contempt in the case of the court its contempt of any court of justice to disturb and abstract
the court by insulting it in its presence and at a time when it’s actually setting an arrest made in court
may count to contempt. Instances of contempt in case of court area) Insulting and blasphemous
remarks during a Trail

INCHOATE OFFENCES

Completing a crime is usually needed before you're charged and possibly convicted. Back out before
finishing, and you can't be found guilty. However, certain acts done in preparation for a crime can be
crimes themselves. These are called inchoate crimes. Inchoate crimes, also called incomplete crimes,
make certain acts illegal even though no actual harm's done. Inchoate crimes serve to punish and
deter people from crime. There are three main inchoate crime types;

 Attempt
 Conspiracy
 Solicitation

Criminal attempt is trying to commit a crime and failing. This is often seen as the most serious inchoate
crime because the person may have come close to completing the crime. Criminal attempt has three
main elements:

 Specific intent
 Actions to commit the crime
 Failure to commit the crime

Criminal conspiracy is when two or more people agree to commit a crime. This crime is used to charge
multiple people planning or doing illegal activities. Conspiracy is different because you can be charged
with the actual crime and the conspiracy to commit it. For example, if you plan with others to kill
someone, you can be charged with murder and conspiracy to commit murder.

Criminal conspiracy main elements are:

 Involvement of two or more people

 Agreement to commit a crime
 An overt or open act to carry out the plan

One can't be charged with conspiracy unless someone else agrees to commit the crime. In many states,
proof of the agreement is enough to charge everyone involved. Some states require an overt act
towards carrying out the plan, such as buying needed materials.

Criminal solicitation is when one person commands, encourages or asks another to commit a crime. A
common example is prostitution. The crime is complete when one person asks another to commit an
illegal act. Solicitation main elements are:

 Intent to have someone else commits a crime

 An act to induce the other person
In order to charge someone with solicitation, the person must have the specific intent to try to induce
another person to commit a crime. He must also commit some act to induce the other person, such
as using certain key words or phrases specific to the crime. A person can't be charged with the actual
crime solicited and criminal solicitation.

The Defenses to inchoate crimes or offences vary by state laws and crime type. Common defenses
include:

 Abandonment
 Legal impossibility
 Factual impossibility

Abandonment means one completely and voluntarily stopping all actions towards completing the
actual crime. For conspiracy, one also has to try preventing the crime from happening. This can be
done by informing the police in time or doing something to stop the crime. Legal impossibility means
that what the person intended to do isn't actually a crime. For example, if a person intends to shoot a
target on a tree but misses and almost hits someone, it's not attempted murder since his intention
isn't illegal. Factual impossibility means that circumstances made it impossible to commit the intended
crime. These are usually circumstances the person attempting the crime isn't even aware of. For
example, if a person tries to shoot someone with a broken gun. Most states don't allow this defense
since the person still has the specific intent to commit an illegal act.

OFFENCES AGAINST THE PERSON

These offences are categorized into two fatal and non fatal offences.

Non-fatal include, assault.

Assaults

Meaning of Assault; apprehending force to be applied immediately on the body. Proof of Assault;
causing another to apprehend force, Actus reus of Assault; causing necessary apprehension, Mens rea
for Assault; intention to cause necessary apprehension, Apprehension of force; cause of fear of
immediate and unlawful force

Common Assault

This is provided for by section 235 of the penal code, which provides that “any person who unlawfully
assaults another commits a misdemeanour, and if the assault is not committed in circumstances for
which a greater punishment is provided in this code, is liable to imprisonment for one year”

Key points to note

 Not committed in circumstances for which a greater punishment is provided in this code
 Misdemeanour
 Punishment; one year

Aggravated assault or assaults causing actual bodily harm Injury to interfere with the health or body
of the victim, Body includes mental and other faculties S. 236 PCA

 Actual bodily harm

 Misdemeanour
 Medical evidence; determines whether its common assault or actual bodily harm
 Punishment; 5yrs imprisonment
Assaults punishable with two years imprisonment

This is provided for by section.238 PCA, Assaults any person with intent to commit a felony or
resist/prevent lawful apprehension

Murder

Unlawfully killing a reasonable creature under Queen’s peace, Capital offence; sentence of death

Section188 of the penal code; unlawful causing of death of another person with malice aforethought

Ingredients; deceased is dead, accused caused death, death caused with malice aforethought, took
place between 1yr and a day

Burden of proof; lies on prosecution, Punishment; death sentence. Defences; insanity, self-defence
etc

Manslaughter

Definition; unlawful homicide but not murder, Section. 187(1) and (2) Penal Code Act

Types of manslaughter; voluntary and involuntary. Voluntary manslaughter; under mitigating

circumstances

Involuntary manslaughter; mental state less than intention unlawfully to kill. Killing on provocation
(Section.192 PCA); manslaughter

Provocation as defined(section.193 PCA) sudden loss of self-control.

Diminished responsibility (Section.194 PCA); abnormality of the mind, mitigating defence, safe
custody

A child capable of being killed (Section.197 PCA); proceeded in a living state from the body Important
cases on murder and manslaughter for further reading

OFFENCES AGAINST MORALITY

These offences include

 Rape
 Abduction
 Elopement
 Indecent assault
 Defilement
 Aggravated defilement
 Adultery

Rape

Rape defined under section123 PCA Cap 120 to include “unlawful carnal knowledge, of woman or girl,
without her consent or obtained by false means”

Ingredients of rape

 Victim of rape must be a woman or a girl

 Unlawful Carnal knowledge
 There was no actual and real consent
Mens rea; intend to have sex with a woman, Actus reus; sexual intercourse, no consent, Punishment
for rape; death

Section125penal code Attempted rape; felony, Punishment for attempted rape; life imprisonment

Abduction

Section 126 of the penal code, provides that any person; whether male or female who-a. (a) Intent to
marry or be married to or to have sex with another takes away or detains him or her against his or her
will

Unlawfully taking another person under 18yrs out of the custody of persons having lawful care over
that person, commits an offence punishment for abduction; imprisonment for seven years

Elopement

Elopement defined; running away with a married person, It is provided under Section127 (1)-(3) PCA

Ingredients of elopement; knowledge and run away

Knowledge of marital status; ignorance of which may be a defence, Compensation; accorded to

aggrieved spouse

Elopement and adultery; running away and sexual intercourse. Punishment; both,12months
imprisonment or 200Shs fine and on first conviction, pay Shs 600 and subsequent conviction, amount
not exceeding 1200

Indecent assault

Definition; assault accompanied by circumstances of indecency,It is provided under Section 128 PCA;
[Link]; woman, girl and boy under 18yrs

Ingredients; indecent act, assault,Punishment (Section.128(1); 14yrs in prison. Assault and indecent
assault. Consent to the act of indecency by a girl under 18. Indecent assaults on boys under eighteen
(Section.147) PCA. Punishment; 14 yrs in prison

Defilement

Section 129 (1); any person who unlawfully has sexual intercourse with a girl under the age of

18 commits an offence and is liable to suffer death.

Aggravated defilement

Define; (S. 129(2)) PCA as amended performance of sexual act with another person below 18yrs under
circumstances in S. 129(4) PCA as amended

Ingredients; below 14,HIV, parent or guardian, disability, serial offender, Punishment; death.
Attempted aggravated defilement; Punishment; life imprisonment. Standard of proof in aggravated
defilement

Adultery

Defined; any man having sexual intercourse with a married woman not being his wife and married
woman having sexual intercourse with any man not being her husband

It is provided under Section154 of the PCA

Who can commit? a man with knowledge of a woman married, a woman with knowledge of being
married

Ingredients; knowledge, unlawful sexual intercourse. Accomplices; different mens rea in each case,
separate counts were both are charged

Corroboration; matter of law

 14. Criminal law questions.
1. When can Compulsion succeed as a defense in criminal law?
Compulsion will only succeed as a defence where a person is compelled to commit an act by
use of threat or grievous bodily harm. In such situation his or her acts are not considered to
be criminal. The rationale behind this defence is that the threats must be immediate.
Nevertheless, threats of future injury are not excused and do not amount to compulsion.
2. What are the Ingredients of Embezzlement as an offence?
 the accused was the employee of the victim
 the accused received & took the property on behalf of employer
 The accused had intentions of permanently depriving his employer of the property.
Further reference check section 268 of the penal code
3. List key ingratiates on the offence of rape.
 There must be unlawful carnal knowledge
 It must be done to a woman or girl
 This act must be committed without consent of the victim
 If there is consent obtained it must have been by use of force
Further reference section 123 and 124 of the penal code
4. Differentiate between legal burden of proof and evidential burden of proof in a criminal case.
Legal burden of proof refers to the decree of proofing a case and it is always on the
prosecution in criminal matters to prove its case beyond reasonable doubt. While evidential
burden of prove refers to the decree of proof where by a party either the prosecution or the
accused discharges the burden of proof and this is only on the balance of preponderances.
5. Explain what is meant by standard of prove in criminal cases.
Standard of prove refers to the decree of proof of a case by the prosecution which is beyond
reasonable doubt. That is to say beyond reasonable doubt does not mean beyond shadows of
doubt. What is required here is that there is overwhelming evidence that the accused
committed the crime.
Further reference See the case of Miller Vs Ministry of Pension.
6. Explain the burden and standard of prove in the offence of burglary.
Section.300 of the penal code Act creates the offence of burglary. It basically provides that
any person who is found having in his or her possession without lawful excuse the proof of
which lies on him or her, any housebreaking instrument commits an offence and is liable on
convictions to imprisonment for 7 years.
The burden is on the prosecution to prove that the accused was in possesion of house braking
materials and their standard of proof is beyond reasonable doubt. The burden is on the
accused to prove that he was not going to use the instruments for house breaking but
something else. And they prove it on a balance of probability.
7. Define the word perjury.
Sec .94 of the penal code Act define perjury as any person who in judicial proceeding or for
any purpose is instituting any judicial proceeding knowingly gives false testimony that touch
any mater which is material to any judicial question.
8. Explain the meaning of carnal knowledge?
Unlawfuly havin sexual intercourse with another person
In Uganda V Odwong Dennis and Olanya Dickson (1992-1993) HCB 71, Prosecution must prove
penetration of the female reproductive organ into the female reproductive organ.
9. What is the rationale behind the defense ignorance of law is not defense?
First and for most, It is difficult to establish if the person did have knowledge and secondly
People could refrain from obtaining knowledge about the law if the defense is allowed. Further
reference section 6 of the penal code
10. Distinguish between the offence of Burglary and Housebreaking.

Under the offence of Housebreaking, once a person breaks any part of a building and enters
during daytime committee an offence known as Housebreaking. However if the offence is
committed in the night it is termed as burglary.
Further reference section 294,296; 297 and 298 of the penal code
Secondly, the punishment for housebreaking is provided under section 295(1) of the penal code
where a person who commits such an offence is liable to imprisonment for 7 years. While under
section 295(2) a person who commits the offence of burglary is liable to imprisonment for 10
year.
11. Can an employer be vicariously to acts of employees in criminal matters?
No, the principle on vicarious liability does not apply in criminal matters. The employee is
personally liable. Thus it is important to note that the principle of vicarious liability applies in
the law of tort, where there is the relationship of employer and employee.
12. What do you understand by the defense of automatism?
Generally it is a defense that if an act, omission or event with which the accused is changed
was involuntarily owing to factors that are out of his control, he or she can plead the defense
of automatism. In Hill v Baxton, court held that a man could not be said to be driving if he had
be attacked by a swarm of bees.
13. What is the principle of legality?
The principle of legality is to the effect that except for the contempt of court, no one shall be
convicted of an offence unless the offence is defined and penalty prescribed by law.
Further reference article 28 (12) of the constitution
14. Among the following offences, which one is not an offence related to administration of
justice
Circle the correct one
(a) Perjury
(b) Contempt of court
(c) Causing financial loss (Answer)
(d) Disobeying lawful order

15. Which persons can became parties to a crime?

When an offence is committed each of the following person is deemed to have participated
in the committing the offence and to be guilty of the offence and may be charged with actually
committing it. These persons are
 Every person who actually does the act or makes the omission which constitutes the offence
 Every person who does or omits any act for the purpose of enabling or aiding another person
to commit the offence.
 Every person who aids or abets another person in committing the offence.
  Incorporated corporation are also considered to be legal person. In Salomon V Salomon and
company court held that once a corporation is incorporated it becomes a person distinct from
its members.
16. John was walking to town at about 8 pm to check on business as usual, when he came across
men who were armed with pangas; knives and also guns. They asked him to give them all
the money he was carrying failure, he would never see light again. During that time of
confusion John removed his gun and shot the two men in front of him ten bullets each on
the head, when the rest of the men saw that; they ran leaving the wounded men behind. A
few minutes later John was arrested by the night patrol police who had heard the gun shot.
The two men died shortly after reaching the hospital. List the possible defences and offences
to John.
(1)Offences
 Murder
 Manslaughter
(2)Defences
 Use of force under self defence
 Automatism
17. Why is it important for prosecution to proof criminal cases beyond reasonable doubt?
The rationale behind this principle is that firstly, conviction results in the right of the
accused being affected. Secondly, conviction gives rise to a record, which stigmatizes
the life of the individual. Finally, crime is an offence against society and before society
can show that accused has injured it, the crown, representing society; should prove it,
hence the adage that “ it is better for guilty persons to be freed than innocent person
to be convicted.
Further reference
On the case of Woolmington V DDP
18. In criminal law, the defense on use of force will only hold water if the force used was
reasonable. What is the test developed by courts to determine reasonable force?
The test for reasonable force is objective, what is reasonable force depends on the
following:
 Nature or degree of force used,
 Seriousness of the evil to be prevented
 The possibility of preventing it by use of other means

19. Distinguish between indecent assault and defilement of girls under the age of 18
years

 Indecent assault is provided by section 128 of the penal code. It is defined as any
assault accompanied by circumstances of indecency. Victims are usually women, girls
and boys under 18yrs.
 However, in cases of defilement of girls under the age of 18 years it is provided under
section 129 of the penal code. Defilement refers to performing sexual act with another
(girl) person below 18 years. Thus victims are only girls below the age of 18 years.
20. Distinguish between criminal law and civil law
 1. Criminal law is categorized as public law. This is because it is intended to serve societal or
public interest. while civil law is invariable on the private law side.
2. Secondly in criminal law, criminal proceedings are brought in the name of the crown or state
e.g. Rex V Job. While on civil law, civil suit are usually brought by the aggrieved party, e.g. Job
V Joan
3. In criminal law the wrong is usually referred to as a crime, while in civil law it is considered to
be civil wrong.
4. In criminal law a person (state) who intends to sue usually states the offence or crime in a
document referred to as a charge sheet or indictment. While in civil suit, the claim is usually
contained in a declaration. (In English law plaint.)
5. In criminal law the prosecutor pursues the case on behalf of the crown or state. On the other
hand in civil law, civil action or suits are usually brought by the plaintiff on his or her behalf.
6. In criminal matters the standard of proof is beyond reasonable doubt. While in civil law, the
standard of proof is on the balance of probabilities.
7. In criminal matters a person can either be referred to as accused or defendant before court.
While on civil matters the person is usually referred to as defendant.
8. Finally, in criminal matter when a person is found to be guilty, he or she can be sentenced,
imprisoned or fined or both. While in civil matters a person can only be found to be liable and
court may usually order the liable person to pay damages and costs.
21. Is criminal law of any purpose in the society? If so state its purpose in the society.
Yes it is. Its purpose include
 To forbid and prevent conduct that unjustifiably inflicts or threatens substantive harm to
the individual or public interests.
 To subject to public control, persons whose conduct indicates that they are disposed to
commit crimes.
 To safeguard conduct that is without fault from condemnation as criminal.
 To give a fair warning of the nature of the conduct declared to an offence.
 To differentiate on reasonable grounds between serious and minor offences
22. List five ingredients of the offence on causing financial loss
 There must be an act or omission
 It was done in the course of employment
 The accused is responsible
 The person must have been employed by the above organizations
 The accused knew that the act/omission would cause financial loss
Further reference section 269 of the penal code
23. List two offences against morality
 Rape
 Abduction
 defilement
24. List two fatal offences against person.
 Murder
 Manslaughter
25. Explain the maxim Actus non facit reum, nisi mens sit rea
An act does not make a man guilty of a crime unless his mind to also guilty
26. Which of the below instance does not amount to contempt in the face of court
 (a)Insulting and blasphemous remarks during trial
(b)Open interaction of proceeding
(c)Ceasing a documents carrying it away in defiance of the court
(d)A prisoner threatening his fellow prisoners
(e)Flying an egg/any object at a judge or magistrate
(f) Giving false testimony in court whether written or oral.
27. List two offence against the state
 Treason
 Terrorism
28. What is the punishment for murder?
(a)Life imprisonment
(b) 10 years
(c) Death sentence
(d) None of the above
29. List four key elements of criminal law.
 Politicality
 Specificity
 Uniformity
 Penal sanction

30. Define Criminal Law

This refers to the body of law defining offences against the community at large regulating how
suspects are investigated, charged and tried and establishing punishment for convicted offenders
31. What is a crime?
A crime is a legal wrong the principle consequence of which is that the offender if detected and is
decided to be prosecuted is done in the name of the state.
32. Which of the following is a source of criminal law in Uganda?
a) Constitution b) judicial decisions c) penal code act d) (a) and (c)
33. Contempt of court may be?
 Criminal contempt
 Disobedience of lawful orders.
34. Under what circumstances is a witness s deemed to commit contempt of court
 Refusal to be sworn in or being sworn in refuses to answer
 Decline to answer on grounds that he may incriminate himself
35. Define contempt at chamber
This is misconduct in the presence of a judge at chamber or at percepts at court it may also be
contemplators interference with judicial proceeding in which a judge is acting as a judicial officer.
36. List the instances of contempt in face of court
 Insulting and blasphemous remarks during trial
 Open interaction of proceeding
 Ceasing a documents carrying it away in defiance of the court
 A prisoner threatening his fellow prisoners
 Flying an egg/any object at a judge or magistrate
37. Define perjury
Sec .94 of the penal code Act define perjury as any person who in judicial proceeding or for any
purpose is instituting any judicial proceeding knowingly gives false testimony touch any mater which
is material to any judicial question.
38. Which of the following offences are related to perjury?
 Murder
 Throwing an object to a judge
 Subordination of perjury
 Rape
39. Arrange the following categories of culpable mental states as listed under, according to
blame worthiness.
 Recklessness
 Knowingly
 Intentionally
 Criminal negligence
40. Define Mens rea
The state of mind of express or impliedly required by the definition of the offence charge
-NB Different offences have different elements varies from offence to offence.
41. List the elements of mens rea
 Intention
 Recklessness
 Negligence
42. A person who commits the offence of robbery shall be liable for:
(a) On conviction by the High Court, imprisonment for life
(b) On conviction by the Magistrates’ Court, imprisonment for 10 years
(c) On conviction by the Magistrates’ Court, imprisonment for 7 years
(d) Both (a) and (b)
(e) Both (a) and (c)

1. What should the prosecution prove in robbery?

1. What is aggravated robbery?
2. What court has jurisdiction to try aggravated robbery and what is its punishment?
3. What is a deadly weapon?
4. What must the court prove in aggravated robbery?
5. State the rules of identification as observed in R. V. MWANGO.
ASSAULT
1. 37. What is Assault?
2. 38. What are the ingredients of assault?
3. 39. What would be the appropriate test for the offence of assault?
4. 40. Briefly discuss the relevance of the requirement of medical evidence in relation to assault.
5. 41. What is the punishment for assault?
Murder
1. What is murder?
2. What is the penalty for murder?
3. What is the burden of proof in cases of murder?
4. What is malice aforethought in relation to the offence of murder?
 5. List down the factors necessary to establish malice aforethought.
6. What defences may be available to a charge of murder?
MANSLAUGHTER
1. What is manslaughter?
2. What is the penalty for manslaughter?
3. Briefly discuss the difference between the two generic types of manslaughter.
4. What may amount to provocation as a defence against a criminal charge?
5. Differentiate between murder and manslaughter.
Offences against morality
1. Define what you understand by the term rape?
Section 123, PCA
2. Who can commit rape under Section 19 (1) of the Penal Code Act?
(a) Every person who actually does the act or makes the omission which constitutes the offence;
(b) Every person who does or omits to do any act for the purpose of enabling or aiding another
person to commit the offence;
(c) Every person who aids or abets another person in committing the Offence.
(d) d) All the above
(e) e) None of the above
3. Outline the ingredients of rape.
 Carnal knowledge
 The victim must be female
 Carnal knowledge must be unlawful
 Absence of consent
4. Who can be a rape victim?
a) A male of 50 years?
b) A female of 14 years?
c) A female above the age of 18
d) None of the above
5. Who of the following can be a principal offender in a defilement case?
a) The doctor who examines the victim
b) Persons who commit the act or omission
c) Persons who aid the defilement act
d) Both b) and c)
6. Distinguish between rape and defilement.
 In defilement, marriage is not a defense.
 The age of the complainant is relevant in defilement.
 Consent of the girl is not a defense in defilement.
7. State the principles of necessity in Dudley and Stephen’s case (1884) 14 QB
8. what must the complainant prove to procure the accused’s conviction on a charge of
indecent assault
9. Choose the 2 major ingredients of elopement
a) One must be married
b) Even though not married, If couple had been cohabiting for 10 years, they qualify
c) Proof of “running away”
d) Proof of sexual intercourse
 e) Ignorance of marriage status is put into consideration
10. To whom does compensation lie in cases of elopement
a. The aggrieved spouse
b. The aggrieved spouse’s parents
c. The aggrieved spouse & parents
11. What is the difference created by the law in the offence of adultery between men and
women
12. Which of the following statements are true
a) It’s a matter of law that evidence in cases of adultery be corroborated
b) It is a matter of practice that evidence in cases of adultery be corroborated
c) Only the promiscuous spouse and accomplice are prosecuted
d) Both the promiscuous spouse and the accomplice are prosecuted
Inchoate offences
1. What are Inchoate Crimes?
2. List the 3 main types of Inchoate Crimes/ Offences.
3. What is criminal attempt?
4. What are the three elements of criminal attempt?
5. What is criminal conspiracy?
6. What are the main elements of criminal conspiracy?
7. Define criminal solicitation?
8. The following are elements of criminal solicitation?
a) An act to induce the other person and intent to have someone commit a crime.
b) Assistance to the other party to commit a crime.
c) None of the above.
1. A person intended to shoot a target on a tree but missed and almost hit someone, and was
convicted of attempted murder. His defenses would be;
a) Factual impossibility
b) Total denial
c) Abandonment
d) Legal impossibility
Treason and offences against the state
1. The time limit for commencement of proceedings under section 23 except under subsection
1(b) is …………….. After commission of the offence.
a) 10 years
b) 3 years
c) 5 years
d) 24 months
2. What is the punishment for treason?
………………………………………………………………………………………………………
3. Define an overt act in relation to offences against the state?
………………………………………………………………………………………………………
4. Under section 23 of the Penal Code act Cap 120, one commits an offence if;
a) Attempts to incite any person to make or endeavor to make a mutinous assembly or steals a
gun.
b) Attempts to commit an act of mutiny or any treacherous or mutinous act or attempts to incite
any such person to make or endeavor to make a mutinous assembly.
5. When the offence of misprision committed and what is the punishment?
6. The penalty for a person who with intent to annoy or ridicule the president assaults or
wrongfully restrains the person of the president?
 15. CRIMINAL PROCEDURE SUMMARY
Criminal procedure can be defined as the medium through which criminal law is enforced.

Or

These are rules governing the mechanism under which crimes are investigated, prosecuted or
adjudicated and punished.

Distinction between criminal procedure and civil procedures

 Criminal proceedings are instituted by the state or on behalf of the state while civil
proceedings are at times initiated by individuals, corporations not necessarily the state
or on behalf of the state while civil proceedings are times initiated by individuals.
 Criminal proceedings are controlled by the state through the Dpp while civil
proceedings are controlled by the persons who initiated them or against whom they
were initiated however Court may come in if appreciate action is not taken.
 The primary objective of criminal procedure is peal or punitive since it is designed to
ensure that the offender is punished while civil procedure is designed to make good civil
wrongs by compensation, restitution, satisfaction by restraint or appreciate relief like
specific performance and injunctions.
 There is generally no time limit with in which criminal proceedings can be instituted
against a person except few offences like sedition, treason etc but in civil suits there is
a time limit in with in which suits are expected to be instituted in courts of law.
 The standard of proof in criminal case is beyond reasonable doubt while in civil cases
it’s on a balance of probability
 To require such persons to give him documents on other matters under his cartel.

Institution of criminal proceedings who may do so (sec 42MCA)

 By a police officer bringing the person arrested with upon a change.

 By a public prosecutor or police office laying a change against a person before a magistrate
and requesting for the issue of a warrant or summons.
 By any other person making a complaint and applying for the issue of a warrant or the
summons.

Discuss the role of the police in the administration of criminal justice in Uganda

 To protect life and property.

 To preserve law and order.
 To prevent and detect crime.
 To enforce laws of Uganda.
 To ensure public safety and order
 To perform services of a military force

What’s the role of the DPP in criminal proceedings?

 To institute and undertake criminal proceedings against any person before any Court other
than the Court martial in respect of any offence alleged to been committed by that person.

 To take one and continue any such criminal proceedings that has been instituted by any
other person.
  To direct the police to investigate any information of a criminal nature and to report to him
the expeditiously

What are the offences that require the consent of the DPP before institution?

 Publication of information prejudicial to security

 Sedition
 Wrongful inducing of a boycott
 Incitement of violence
 Criminal libel

COMPOSITION OF COURTS.

The Supreme Court of Uganda

Established under article 129 (1)(a) of the constitution of Uganda. It is composed of the following
members:

 The Chief Justice

 Not less than six Justices of the Supreme Court

The court is duly constituted to hear a case when it is composed of uneven number not being less
than five of the members of the court.

The Court of Appeal of Uganda

It is established by article 129 (1) (b) of the constitution of Uganda. It is composed of the following
members:

 The Deputy Chief Justice

 Not less than seven Justices of Court of Appeal

The Court is duly constituted at any sitting to hear an appeal when it is composed of an uneven
number not being less than three members of the Court (Article 135 of the constitution of Uganda)

The constitutional Court of Uganda

The Court deals with interpretation of constitution. It is part of the

Court of Appeal. It is established under article 137 of the constitution of Uganda.

It is duly constituted when it is composed of five members.

The High Court of Uganda

The Court is established by article 138 of the constitution of Uganda. It is one of the superior Courts
of records and has unlimited jurisdiction throughout Uganda.

It is composed of the Principal Judge, and not less than six judges.

It is duly constituted by a single judge when hearing criminal cases, although the judge is required to
sit with lay assessors when trying an accused person on an indictment.

The Magistrates Courts

The Magistrates Courts are established by section 3 of the Magistrates Court Act Cap 16.
The three grades of Magistrates are Chief Magistrates, Magistrates grade I and Magistrates
grade II. Magistrates grade III were abolished.

The Magistrates Courts

The powers of Magistrates are determined by the grade of appointment and the powers and
jurisdiction conferred upon such grade by the Magistrate Court Act (M.C.A).

A Magistrate Court is deemed to be duly constituted when presided over by anyone magistrate
lawfully empowered to adjudicate therein (s. 5 of M.C.A).

Family and Children Courts

The Family and Children Courts are established under section 14 (1) of the Children Act Cap 59.

The Courts are presided over by a Magistrate from the rank of a grade two and above
subject to the jurisdictions and hierarchy of Magistrates Courts.

The Local Council Courts

It is established by the Resistance Committees (Judicial Powers) Act of 1988 now referred to as (The
Executive Committees Judicial Powers) Act, Cap 8. And governed by the local council courts act.

It consists of the members of the executive committee of the village, parish and sub-county council,
not being less than five members.

Police investigation

Generally, when a crime or an offence has been committed or issuspected to have been
committed, it is necessary to conduct investigations to ascertain the person who has
committed it and the circumstances under which he or she committed it. Evidence must be
assembled in regard to this matter. After this investigation is when it is possible to decide;

 whether any offence has been committed;

 whether any person has committed it,
 under what circumstances the offence was committed;
 whether the suspected person should be charged or prosecuted

TYPES OF POLICE INVESTIGATION.

Basically there are three types of investigations conducted by police:

Investigation of serious crime by the Criminal Investigation Department (CID)

Investigation of minor offences conducted by uniformed police.

Investigation of traffic offences, conducted by the traffic police.

Experts report

Reports of experts are basically of four categories:

 Medical reports;
 Government Chemists’ reports;
 Government Analysts’ reports; and
 Government Geologists’ report
INQUEST

An inquest is an inquisition held by a coroner to inquire into the death of a person who has
died in prison or police custody or under a suspicious circumstances. It is of a judicial nature of
inquiry held to establish the circumstances under which the death occurred.

The law governing inquest in Uganda is contained in the Inquests Act, Cap 11

An inquest must always be held in the following circumstances:

 If the deceased died in prison or in police custody or while confined in any lock-up or mental
home.
 If the deceased died as a result of a road accident.
 If the deceased died as a result of an accident in a factory or a mine.
 In any case in respect of which he or she is directed by the High Court to hold
inquest.

ARREST

An arrest is the deprivation of liberty for the purpose of compelling a person to appear in
court or other authority to answer a criminal charge or testify against another person. It
usually involves taking the person arrested in custody whereby he or she is detained or
confined.

Use of firearms by police officers in effecting arrest

Police officers are authorized to use firearms in effecting arrest in certain circumstances [s.16
(1)] of the Police Act CAP 303. Any police offer may use firearms against any of the following
persons:

 Any person in lawful custody charged with a serious offence (felony) when such person
escapes.
 Any person who, by force, rescues any person from lawful custody
 Any person who, by force, prevents lawful arrest of him or herself or any other person.

EXTRADITION

Extradition is a process by which a fugitive offender may be surrendered from the country of
his or her refuge (the requested state) to the country of trial where he is alleged to have
committed the offence (the requesting state). The process is based on diplomatic relationships
between the states concerned. Normally extradition is based on an Extradition Treaty between two
states. It is also generally governed by principles of international law.

Restrictions on surrender of criminals:

There are the following restrictions on surrender of fugitive criminals;

1. A fugitive criminal cannot be surrender if the offence in respect of which his surrender is
demanded is one of political character (the political offence exception {s. 3 (a) });
2. A fugitive criminal cannot be tried in a country where he is surrendered except for the
offence for which he was extradited (the specialty rule {s. (b)})
 3. A fugitive offender who is undergoing trial for an offence other than the one for which his
surrender is requested or who is serving sentence in Uganda shall not be surrendered until
after his or her acquittal or expiration of sentence (s. 3 {c});
4. A fugitive offender shall not be surrendered until after the expiration of fifteen days after his
committal (s.3{a})
5. A fugitive criminal shall not be surrendered unless the offence allegedly committed in the
requesting country also constitutes an offence in Uganda (the double criminal rule)
6. A fugitive criminal can only be surrendered for an extraditable offences like murder,
wounding, rape, kidnapping, drug offences, falsification of currency, forgery,
embezzlement, fraud, bribery, piracy and slave dealings (see schedule of Extradition Act
Cap 117).

BAIL

Bail is an agreement or recognizance between the accused (and his or her sureties if any)
and the court that, the accused will pay a certain sum of money fixed by court. Should he or
she fail to appear to attend the trial on a certain date. This is a constitutional right

under article 23 (6) (a) of the constitution for the accused to apply for bail.

The object of bail is to ensure that the accused person appears to answer the charges against
him or her without being detained in the prison on remand pending trial. The effect of bail is thus
to temporarily release the accused from custody of court or police.

Bail may be granted with or without sureties. A surety is a pledge by another person guaranteeing
that, if the accused person does not appear before the court at the specified time, he or she
will pay certain sun of money to the court. The amount of money which, the accused or a
person standing surety for him or her will be required to pay should the accused default, is
called security.

Who may grant the bail?

Bail is normally grant by court. The High Court has power to grant bail in any case and normally
deals with applications where the accused is charged with an offence punishable with death
(s. 14 of TIA)

A Magistrate court has power to release person on bail in any case except where the accused
is charged with certain offences.

Offences a magistrate cannot grant bail for:

 An offence triable only by the High Court

 An offence under the Penal Code Act relating to acts of terrorism.
 An offence under the Penal Code Act relating to cattle rustling.
 An offence under the firearms Act punishable by a sentence of imprisonment of not
less than ten years.
 Abuse of office contrary to s. 83 of the Penal Code.
 Rape contrary to s.123, defilement contrary to s.129, 130 of the Penal Code.
 Embezzlement contrary to s. 268 of the Penal Code
 Causing financial loss contrary to s. 269 of the Penal Code.
 Any other offence in respect of which a magistrate’s court has no jurisdiction to grant bail
(see s. 75 of MCA)
RIGHTS OF AN ACCUSED PERSON

 Fair and impartial hearing

 Trial within reasonable time
 Presumption of innocence
 Information of the nature of the charge
 Right to adequate facilities for preparation of defence and right to legal representation
 Right to cross-examine prosecution witness and right to call and examine his own
witnesses.
 Right to be present during trial and to have assistance of interpreter
 Right to copy of proceedings and judgment
 Rule against retrospective Penal laws
 The rule against double jeopardy
 The rule against unwritten criminal offences
 Right to public trial

What is an appeal?

An appeal simply refers to a proceeding taken to rectify an erroneous decision of a court by bringing
it before a higher court.

What is the law relating to criminal appeal?

Likewise under section 204(3) of the magistrate’s court Act No appeal shall be allowed in the case of
any person who has pleaded guilty and has been convicted on that plea by a magistrate’s court
except as to the legality of the plea or to the extent or legality of the sentence.

Section 204(4) of the magistrates court Act No appeal shall be allowed in a case where a court
presided over by a chief magistrate or a magistrate grade I has passed a sentence of imprisonment
not exceeding one month only, or a fine not exceeding one hundred shillings only.

Under section 204(5) Where an accused person has been acquitted by a magistrate’s court, the
Director of Public Prosecutions may appeal (or sanction an appeal in such manner as may be
prescribed by the Minister by statutory instrument) on the ground that the acquittal is erroneous in
law (a) to the High Court, where the accused person has been acquitted by a court presided over by
a chief magistrate or a magistrate grade I; (b) to a court presided over by a chief magistrate, where
the accused person has been acquitted by a magistrate grade II or III.

How is an appeal filed? (Grounds for appeal)

Under section 28 criminal procedure Act 116. (Notice of appeal).

Every appeal shall be commenced by a notice in writing which shall be signed by the appellant or an
advocate on his or her behalf, and shall be lodged with the registrar within fourteen days of the date
of judgment or order from which the appeal is preferred.

Every notice of appeal shall state shortly the effect of the judgment or order appealed against and
shall— (a) contain a full and sufficient address at which any notices or documents connected with
the appeal may be served on the appellant or his or her advocate; and (b) except where subsection
(3) applies, state the general grounds upon which the appeal is preferred.
Section 30 criminal procedure Act cap 116. Appellant in prison. If the appellant is in prison he or she
may present any document relating to his or her appeal to the officer in charge of the prison who
shall then forward the document to the registrar, and for the purpose of section 28 on the date of
the presentation, any such document shall be deemed to have been lodged with the registrar.

Section 28(3) of the criminal procedure Act. If the appellant or an advocate on his or her behalf
indicates at the time of filing a notice of appeal that he or she wishes to peruse the judgment or
order appealed against before formulating the grounds of appeal, he or she shall be provided with a
copy of the judgment or order, free of charge, and the grounds of appeal shall be lodged with the
registrar within fourteen days of the date of the service on him or her of the copy of the judgment or
order

Section 28(4) of the criminal procedure Act states where the appellant is represented by an
advocate or the appeal is preferred by the Director of Public Prosecutions, the grounds of appeal
shall include particulars of the matters of law or of fact in regard to which the court appealed from is
alleged to have erred.

Revision

What is revision?

In Uganda V Paulo Lwanga (1984) HCB 20, held on revision when taking the accused plea and
especially when the accused is pleading guilty the accused own words in answer to the charge must
be recorded. Plea of guilty should only be entered after the accused has unequivocally pleaded guilty
in his own words to the charge and to all essential ingredient constituting the offence charged.

In Uganda V Akai and others (1979) HCB 8, it was held that a chief magistrate has no powers of
revision over the decisions of grade 2 and 3 the chief magistrate can only call for and examine a
record of such a court within the local limit of his jurisdiction in order to satisfy himself of the
correctness, legality and proprietary of any findings or the past recorded and irregularity of
proceedings of such a court.
 16. QUESTIONS COVERING TOPICS: Bail, Trial procedure, Searches and
search warrants
BAIL

1. List four instances under which bail may be denied to a person.

Treason, rape, murder, aggravated robbery. As stated in Section 17 (1)

Criminal Procedure Act

2. Bail is an automatic right. Is this statement right, and give authority to support your
answer.

Bail is not an automatic right. Article 23 (6) (a) of the Constitution of the Republic of Uganda says
that bail is in accordance to the discretion of the court.

3. Mention at least 2 differences between the high court and magistrate court proceedings
with regard to the grant and application of bail.

Application for bail in the magistrate court is by oral notice of motion or oral application whereas in
the high court it is by written application

The grounds for application for bail are different in these two courts. In the high court one needs to
prove exceptional circumstances and consent of the DPP whereas in the magistrate court it is not
necessary

4. Give at least 2 instances court may consider before granting one bail.

Court may consider; the nature of the accusation, gravity of the offence, whether the applicant has a
fixed place of abode in the place of the court’s jurisdiction and whether the applicant is likely to
interfere with witnesses and where the accused person will not jump bail.

5. What powers does the chief magistrate have with regard to granting bail?

According to Section 75 (3) Magistrate Court Act, the chief magistrate can direct bail to be given to a
person when it has been denied by a lower court.

The chief magistrate also has powers to reduce the amount of bail where it is too high.

SEARCHES AND SEARCH WARRANTS

6. Give 2 instances when a police officer searches without a search warrant.

A police officer may seize objects not mentioned in the search warrant when he finds such objects
that may be used as evidence in the case and the other instance is when a person is already in police
custody.

7. When can a police officer break into a person’s home?

A police officer can break into a person’s home when that person refuses to be searched. Section
3(2) Criminal Procedure Code Act.

8. A search certificate is important with regard to searches. When is it issued and what does
it contain?
A search certificate is issued by an officer who makes the search and should be; countersigned or
thumb marked by the person who is subject of the search. It contains such things as the place, date,
time of the search, names of persons around among others.

TRIAL PROCESS

9. What are the conditions surrounding the grant of an adjournment in court proceedings?

There has to be a sufficient cause shown to the court for why bail should be granted (Section 122
Magistrate Court Act)

An adjournment is given for a definite time and a definite date is indicated for when the next hearing
will be heard.

An adjournment should not be for more than 30 days when one has been granted bail and not more
than 15days when one is on remand.

10. What is meant by “prima-facie case” in a trial process?

This is defined in BHATT V Ras one where a reasonable tribunal directing itself on law and evidence
would convict a person if no explanation is given by the defense. In WIBIRO ALIAS MUSA V Ra prima-
facie case does not mean a case proved beyond reasonable doubt.

PLEAS

11. What are the types of pleas?

● Plea of guilty: accused admits the facts. Where this plea has been properly received and recorded,
the prosecution doesn’t have to prove the ingredients of the offence. The taking of this plea saves
time and expenses of witnesses who would have been needed to prove the case.

Section 124(2)of the Magistrates Courts Act (MCA) provides that the accused’s admission shall be
recorded as nearly as possible in the words used by him.

● Plea of not guilty: accused denies the charge. According to [Link] v R MB 20/60, where this
plea is entered the prosecution has to prove every ingredient of the offence despite any admission
of fact the accused may have made in his answer to the charge.

● Plea of autrefois acquit or convict: the rationale for this plea is that the accused shall not be tried
twice on the same facts for the same offence. Section 89MCA

● Pardon: section 124(5) b)MCA provides that an accused who has obtained pardon cannot be tried
again on the same charge. The charge will be dismissed and the accused discharged (not acquitted).

12. Does refusal to plead amount to contempt of court?

Refusal doesn’t amount to contempt of court. In Uganda v Antonio Okello, court held that the
magistrate ought to have proceeded under Section 207(4) of the Criminal Procedure Code (now
Section 124 (4) of MCA) and entered a plea of not guilty and proceeded to hear the case. The
accused had refused to plead and he was charged with contempt of court contrary to Section
107(1)a) of the Penal Code Act, convicted and sentenced to 1 months imprisonment.

In accordance with Section 124(4) of MCA, where the accused refuses to plead, court will enter a
plea of not guilty on his behalf and the trial will proceed.

13. Who must plead?

The accused, not his counsel, must plead to the charge. A written plea of guilty can be accepted
when the requirements set out in Section 52 of MCA are met.

However, counsel can plead on behalf of a corporation if he has been instructed to do so. Section 53
of MCA

14. What is the law governing a Plea to alternative counts?

Where there’s more than one count in a charge sheet, if the accused pleads guilty to one of the
counts, there’s no need to take a plea on the other counts.

15. What is the procedure for entering a plea in court when the accused appears before court
on a charge?
 Magistrate/ judge should make sure that the charge sheet correctly sets out the offence
alleged against the accused. It is the responsibility of the presiding judge or magistrate to
ensure that there’s no defect in substance or in form in the charge sheet particularly where
the accused is not represented by counsel.
 Jugde/ magistrate should read out the charge to the accused. In all but the simplest cases,
the substance of the charge should be explained to him.
 Accused should then be asked if he admits or denies the truth of the charge. Section 124(1)
of MCA and Section 60 of the Trial on Indictments Act(TIA) read that the substance of the
charge/indictment shall be read and explained and the accused shall be called upon to state
whether he admits the truth of the charge/indictment.
 Judge/magistrate listens to the accused and writes down the acused’s answer; whether
admitting or denying the charge or otherwise.

16. Can a plea be changed?

Yes. If during the pleadings an accused who has pleaded not guilty now wishes to to plead guilty, the
magistrate should re-charge the accused and take down his plea in the usual way.

A plea can be changed subject to the magistrate’s/ jugde’s discretion. However, a plea can’t be
changed when court has become functus officio after passing sentence in cases where a plea of
guilty is made by the accused in unequivocal terms.

ASSESSORS

17. Who are assessors?

These are persons who aid the High court at all trials in deciding a pending issue. They are usually 2
or more as court thinks fit. Section 3(1) TIA

18. Who is eligible/ what are the requirements for one to be an assessor?
 All citizens of Uganda
 All citizens between 21 and 60 years of age
 All citizens who understand the language of court

However, the following are not eligible to serve as assessors in court.

 Priests or ministers of religion

 Medical practitioners, dentists, and pharmacists in active practice
 Members of the armed forces on full pay
 Members of the prisons services or the police forces
  Persons exempted from personal appearance in court under any law governing civil
procedure
 Persons disabled by mental or bodily infirmity
 Persons exempted by the minister by Statutory Instrument

19. How does trial proceed when an assessor(s) is absent?

When an assessor is absent from trial, court proceeds to hear the case with the aid of the other
assessors. In Abdu Komakech v Uganda (1992) HCB, it was observed that the trial can proceed in the
presence of one assessor where the other is absent but, court must be satisfied that it is for a just
cause.

If more than one assessor fails to appear, Section 69 of Trial on Indictments Act Cap 23 provides that
the proceedings shall be stayed and a new trial held with the aid of different assessors.

20. On what grounds can the choice of an assessor be challenged, and at what point during
proceedings?

Choice of assessor can be challenged before the assessor is sworn in. it can be done by the accused
or the prosecutor for cause on the following or other grounds. Section 68(1) TIA

 Presumed or actual partiality

 Personal cause e.g infancy, old age, deafness, blindness or infirmity
 Character; assessor has been previously convicted of an offence which renders him unfit to
be an assessor
 Inability to adequately understand the language of the court.

21. What is the procedure taken by assessors at trial?

At the commencement of the trial, and after preliminary hearing, where applicable, each assessor
shall take an oath of impartiality to advise court to the best of his/her knowledge, skill and ability on
the issues pending before court. Section 67 of TIA

PROCEDURE IN CASES OF INSANITY

Definition of insanity:

In Section 11 of the Penal Code Act, insanity is a defence if the accused proves that he or she was
suffering from a disease of the mind at the material time and that as a result of such disease he or
she was either;

 Incapable of understanding what he or she was doing, or

 Incapable of knowing that he or she ought not to do the act or make the omission charged
against him, i.e incapable of knowing that what he/she was doing was wrong.
22. On whom does the burden of proof lie?

Burden of proof is upon the accused to establish the insanity. Proof can be made on the “balance of
probabilities”.

23. Who can raise the defense of insanity?

It is usually raised by the accused himself particularly in murder trials. In Philip Muswi s/o Musele v R
(1956) 23 EACA 622, it was held that as a general rule, evidence as to an accused’s state of mind
should be called by the defence and not by the prosecution.
 24. What is the procedure taken by court where an accused is insane?
 If the court has reason to believe that a person is of unsound mind and consequently
incapable of making his defence, the court is charged with the responsibility of inquiring
into the matter (Section 113(1) MCA).
 If after inquiry the court finds this to be the position, it postpones further proceedings.
(Section 113(2))
 If the accused is charged with an offence for which bail may be granted the court has
power at this stage to release him on bail provided sufficient security is given that
proper care will be taken of him and he or she will be prevented from doing injury to
himself or to any person (Section 113(3)).
 In a case where the charge is for an offence for which bail cannot be granted (or if
sufficient security is not forthcoming) the court is bound to order the accused to be
detained in safe custody in any suitable place and to transmit the court record (or
certified copy of it) to the Minister (Section 113(4)). It will be recalled that bail can be
granted to an accused when he or she is charged with any offence other than an offence
other than an offence punishable by death (Section 75(1) MCA).
 The Minister then decides whether the accused should be detained, and he/she is
detained until the Minister makes a further order or until, if he or she becomes sane
enough to be dealt with, the proceedings continue against him (Section 113(5) MCA).
25. When can trial be resumed in cases of insanity?

If the medical officer in charge of the accused certifies him to be capable of making his defence,
he/she forwards the certificate to the DPP. The DPP decides whether the trial should continue or not
and appropriate steps are taken. The trial can then continue either where it left off or denovo
(Section114 & 115 MCA)