Execution of decrees- what happens next after a judgement is delivered?

Execution of decrees- what happens next after a judgement is delivered?

Wednesday, October 16, 2013

A judgement  is that statement made by the judge giving grounds of an order or decree.It includes the facts in issue,a solution and the reasons for reaching that solution.There are various types of judgements and these include; judgement in default,preliminary judgement,summary judgement,consent judgement and ex parte judgement.

It is a custom for a decree  to follow after the delivery of a judgement.A decree is the formal expression of an adjudication which conclusively determines the rights of the parties with regard to any of the issues in contention in the suit and may be either preliminary or final.Normally a decree is unreasoned since most of the reasons have been given in the judgement that led to the arise of the decree.A party who gets a decree has to serve it to the other party it is then taken signing and executing to the registrar of court after receiving approval from the served party.In the event that the decree is rejected by the served party,the registrar is supposed to appoint a date on which the parties should before him agree on the contents of the decree.If the disagreement is sustained still,the matter is refered to the judge who was in charge of the case for determination of the issue upon hearing.

The decree has to agree with the judgement; it ought to contain the number of the suit, the names and descriptions of the parties to the suit and the particulars of the claim. The decree must also specify clearly the relief granted or other determination of the suit. The decree should also state by whom or out of what property or in what proportion the costs incurred in the suit are to be paid.The court may direct that the costs payable to one party by the other shall be set off against any sum which is admitted or found to be due from the former to the latter.

After a decree is given, execution occurs. The orders in the judgment are enforced by the decree holder especially against the unsuccessful party who is the judgment debtor through the various modes of execution prescribed by the laws of the land.ie by delivery of any property specifically decreed, attachment and sale, or by sale without attachment of any property, attachment of debts or garnishee proceedings, arrest and detention in prison or even by appointing a receiver. The decree is then executed by the court that passed it, alternatively another court with authority can enforce it considering certain factors. The decree should be executed within twelve years from its date. However the execution may be extended if the creditor is prevented by fraud or force.

A judgement without any orders directing enforcement of a  solution would be as good as nothing.It is just that the judgement creditor evokes either of the modes of execution discussed above and if the judgement debtor is in a different jurisdiction execution can take place through a process called the reciprocal enforcement of judgements and this applies to commonwealth countries.

Author’s bio: Aturinda Lenah is a legal consultant for Conservation Effort for Community Development a member of Foundation of Environmental Education Eco schools program.

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The plea of res judicata - Can a solved issue be brought to court for determination?

The plea of res judicata - Can a solved issue be brought to court for determination?

Monday, October 14, 2013

Res Judicata means a thing adjudicated, after a plaintiff has taken a matter to court and judgment is made, he/she cannot bring the same issue before any court of the same jurisdiction for determination. Once court has passed a judicial decision it cannot be reversed and its verity cannot be contradicted.

If the plaintiff is discontented with the ruling he/she can appeal or can ask the court for a review.Section 7 of the Civil Procedure Act provides that No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties,or between parties under whom they or any of them claim,litigating under the same title in a court competent to try the subsequent suit or the suit in which the issue has been subsequently raised and has been heard and finally decided by that court.

When does res judicata arise?

In general terms, res judicata is a plea made by the defendant against the continuance of a suit on the ground that the matter in question has been adjudicated upon by a competent court.

For res judicata to apply there must be three fundamental elements

 There must be two opposing parties

 There must be a definite issue between them

 There must have been a tribunal competent to decide the issue and that within its competence the tribunal did so.

The rationale for the doctrine of res judicata is to end litigation, every matter should be tried fairly once and having been so tried should come to an end forever between the parties. In a decision of the East African court in Kotak Ltd v Kooverji and others(1969)E.A 295,it was held that once it is decided that a particular rule of law is applicable to a certain factual situation between the parties,then as far as these parties are concerned,the fact of the applicability of the rule is res judicata and can only be challenged on appeal.

In determining whether a suit is barred by res judicata, the test used is whether the plaintiff in the second suit is trying to bring the court in another way in the form of a new cause of action a transaction which had already been presented before a court of competent jurisdiction in earlier proceedings and which has been adjudicated upon. If the question is answered in affirmative, the plea of res judicata will then apply not only on issues upon which the first court was called upon to adjudicate but also to every issue which properly belonged to the subject of litigation and which might have been raised at the time through the exercise of  due diligence by the parties.

It is important for the dissatisfied plaintiff to ask the court that adjudicated upon the matter to review the matter and if not convinced still he can appeal  to a higher court but not to bring the same suit in a court of a similar jurisdiction.

Author’s bio: Aturinda Lenah is a legal consultant for Conservation Effort for Community Development a member of Foundation of Environmental Education Eco schools program.

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When can consolidation of suits be denied in courts of law?

When can consolidation of suits be denied in courts of law?

Thursday, October 10, 2013

Actions that involve a similar question of law or fact pending before court may order all the actions consolidated.  A party to the suit may apply for consolidation of suits or even Court itself can consolidate suits where a common question of law or fact arises in the actions, the right to relief arises in respect of the same transaction or series of transactions, and it is otherwise desirable to approve the consideration. The court may also provide in the consolidation order that the proceedings be tried at the same time or one immediately after  another.

Consolidating suits is allowed for convenience and economy in administration, it does not change the rights of the parties or even merge the suits into a single cause. However there are circumstances where Court can refuse consolidation for instance ;

Rights of the plaintiff:

where the rights on the position of the plaintiff would be prejudiced against the plaintiff’s will the court  finds it noble to reject consolidation of suits.

Different Advocates:

If court realizes that the case has different advocates involved and it is somewhat difficult to save expenses and quite impossible to avoid multiplicity of pleading and proceedings it also rejects consolidation.

Different roles in the suit:

 In the event that the person is holding two different roles at ago ie plaintiff and respondent and consolidation is likely to make the plaintiff a defendant in the suit upon consolidation and probably lose his advantages as a plaintiff the court can set down the case of hearing one following the other in the order the summons were issued.

Different Law applicable:

In certain cases where a different law is going to be applied to the two causes of action,the court does not even bother to consolidate the suits.

Existence of different issues:

If it is discovered that there are different issues involved court will prefer to solve the issues separately.

Arise of a relevant matter:

Where a relevant matter in one action arose subsequent to the commencement of another action and the actions proceeded to a considerable extent,the judges will not allow consolidation of suits to proceed.

Standard of proof:

Where the plaintiff in one action has to meet different standard of proof from the plaintiff in the other action, then consolidation will not be allowed especially in cases involving fraud.

Necessity of fresh pleadings:

Where in the cross action between the parties, the consolidation would necessitate fresh pleadings throughout and multiply the interlocutory steps consolidation is refused.

By: Aturinda Lenah is a legal consultant for Conservation Effort for Community Development a member of Foundation of Environmental Education Eco schools program.

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Nullification of marriage, When marriage can be nullified

Nullification of marriage, When marriage can be nullified

Monday, October 07, 2013

Marriage is a legal union between man and woman. Once the couple is wedded either before church or registrar of marriages it is supposed to be permanent. However courts can nullify a marriage upon petition of either party i.e. husband or wife. The following are some of the instances when a marriage
can be granted a decree of nullity

Impotence:
Where the respondent was permanently impotent at the time of marriage the petitioner can be legaly allowed to walk out of the marriage. One of the main reasons for getting married is to obtain conjugal rights, impotence prevents this from happening. A marriage is considered valid if its consummated.

Consanguinity:
Due to migration, misunderstandings and other factors, people may not know all their kinsmen especially those that are so directly attached to them  and as a result someone might marry his sister so where its discovered that the parties are within the prohibited degrees of consanguinity, whether natural or legal or affinity the marriage can be nullified.

Insanity:
Where either party was a lunatic or an idiot at the time of marriage it might be nullified.

Today people are so involved in extra marital affairs at times they engage in them for fun without the intention of marrying the partners in crime but due to certain circumstances they decide to take the relationship to another level and they don’t dissolve the previous. Unknown to the other,the prospective partner is actually married in the event that it comes to the attention of the affected party he/she can petition for nullity.

Impersonation/Identity theft:
Where one of the parties impersonates another person/the intended groom or bride the marriage can be nullified. This is especially so if they have an identical countenance.

It is advisable to make sufficient inquiries about the person one intends to get married to for marriage is a life time.

Author’s bio: Aturinda Lenah is a legal consultant for Conservation Effort for Community Development a member of Foundation of Environmental Education Eco schools program.

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Grounds For Devorce, grounds for dissolution of a marriage

Grounds For Devorce, grounds for dissolution of a marriage

Wednesday, October 02, 2013

Divorce is the dissolution of marriage. Marriage is an institution that is supposed to be for a life time however due to conditions beyond human control this institution is shaken and the law comes in to protect the affected parties. Not every misunderstanding can be a ground for divorce,the law provides grounds for divorce and
these are what am going to briefly take you through.

Adultery: Married parties have a duty to be faithful to one another if it's a monogamous marriage a man/ woman ought to remain with one spouse.In the event of unfaithfulness the affected spouse can petition for divorce as long as there's evidence.Adultery is a quasi criminal offence and the burden of proof is slightly higher than a balance of probabilities.

Domestic violence: marriage is supposed to be an institution of happiness the two parties ought to embrace love and care for one another.By the time domestic violence is involved it's an indication that all is not well,couples do get conflicts and sometimes fight but there are a times where it gets out of hand and one party is subjected to nothing but misery and pain.In such a situation the battered party(who is always the woman in most cases) can petition for divorce to dissolve the marriage absolutely.

Desertion: where it can be shown/proved that one of the spouses deserted the home for a period of two years,the other party can ask for a divorce.It should be noted that desertion doesn't include absence from home due to studies or work if it's in the knowledge and consent of the spouse.

Change of religion: where one spouse converts to another religion without the consent of the wife for instance. She can petition for divorce,the rationale is that the two people are one and ought to agree on basic things. Religion not only affects the spritual aspect of a person but even their perceptions and actions,different religions have different beliefs and this affects the other party if she has not consented.For example if the couple is a Christian and a spouse converts to Islam there are so many changes that will affect the other party for instance having four wives,failure to eat certain foods.

Marital rape: some jurisdiction consider marital rape as a ground for divorce,this ground has received
many criticisms considering the fact that consent is obtained at the altar/registry/any authorised place where the marriage is officiated.Unlike other grounds that can affect either party marital rape categorically affects the woman.Where the woman feels the marriage is unbearable because of marital rape she can petition for divorce.
In jurisdictions where marital rape is not an offence,one thing remains for a fact harm is suffered by someone and so the affected victim can still petition under the umbrella of domestic violence.

Partners should always first try out all the negotiation skills and solve issues amicably,divorce should only be
the last option if a marriage is to be dissolved. marriage is destined to be a life time contract.

Contributed by Aturinda Lenah a regular contributor to LA Law School Guide and legal consultant for Conservation Efforts for Community Development a member of Foundation for Environmental Education

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What you aught to do/ know before you adopt a child.

What you aught to do/ know before you adopt a child.

Wednesday, October 02, 2013

Children are innocent adorable human beings,it's unfortunate that not everyone has the gift to give birth.Some couples usually opt for adoption and they treat the adopted children as their very own which isn't a bad idea. However this desire to adopt isn't as of right or guaranteed,the aspiring parent ought to do certain things to earn the child and these are provided by the law deepending on your jurisdictional requirements.

1. The person who wishes to adopt must be twenty one years older than the child.
2. The aspiring parent must have good morals/repute in society,one ought to make sure that one's criminal record is clean. This is so because court considers the welfare of the child and this includes the moral upbringing.If one doesn't have the best conduct of raising a child there are high risks of being denied the opportunity.
3. It's also preferable for the applicant to be having a spouse before adopting a child and also have his/herconsent prior adoption.However this doesn't mean that where a spouse is incapable of consenting or has been separated from the other he/she can't adopt the child,the court may dispense and permit the couple in need of the child.
4. A single person can only be given the child of the opposite sex unless the court considers that there are exceptional circumstances that are in favor of the child.
5. The applicant is also required to have fostered the child for a certain period of time usually it's a period of not less than thirty six months.However the period defers in certain jurisdictions.
6. It should also be noted that two or more people can't be authorized to adopt one child unless it's a couple.
7. The applicant of a child must also make sure that the parents/guardians of the child fully consented to the idea for they are not allowed to remove the child in the custody of the parents while the application order is pending in court.
8. If the child to be adopted is aged fourteen years it is desirable that his/her consent is sought unless it's impossible for the child to express his/her views.

Most of the times the adopted children are orphans or abandoned children and there are people who might claim to have rights over the child.It is pertinent that the consent of that person is sought,court might also employ the probational and social welfare officer to find out if the person really has authority and rights over the child.

It's a common misconception for people to believe that money is all they need to show that they deserve to adopt the child.The welfare of the child is paramount and this doesn't only include his/her easy accessibility to basic needs.Moral upbringing is vital.

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Validity of church marriages- Family Law

Validity of church marriages- Family Law

Wednesday, October 02, 2013

Marriage is the legal union between a man and a woman. Lately this definition has received criticisms due to the global changes in lifestyle. The gay community seeks to be identified in the marriage sector and some  jurisdictions have condoned gay marriages. But for purpose of this
presentation the common law position will be preferred.

There are several types of marriage ie customary marriage,Civil marriage,church marriage,Islamic
marriage,Hindu and many others. Concentration will be based on church marriage,it's one of the
marriages that embrace monogamy.

Under church marriage the couple is wed by the priest/Reverand/Pastor or anyone ordained to carry
out the occasion.It is supposed to be a life time commitement and the church doesn't support divorce
whatsoever.

For a church marriage to be valid,the celebrant ought to announce the wedding bells of the
couple three times in church.The announcement is to notify the public or congregation if there's anyone against the holy matrimony of the couple in question. The announced couple should be of majority age which is eighteen years.

The marriage of the couple should take place during the day between 7am-06pm,marriage conducted
beyond those hours is invalid.

The occasion should take place in a LICENCED CHURCH/any place authorized by the Minister. so
many churches have emerged but not all churches are licensed.It is the duty of the couple that intends to be joined together to identify the licensed church to officiate the marriage.

There should be atleast three people to witness the marriage and the doors should be wide open,it should
not be done in hiding.

The couple should be given a marriage certificate
The couple,the celebrant and the witnesses should sign the marriage certificate

Lastly the couple should have consented to be joined in holy matrimony,if either proves to have been
coerced or misrepresented,the marriage can be nullified.

Now you do understand that it is important to take church  marriage as very important for the neglect of one ingredient may lead to grounds for challenging such marriage.

Aturinda Lenah is a legal consultant at Conservation Efforts for Community Development a
member of Foundation for Environmental Education

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Formal requirements of affidavits

Formal requirements of affidavits

Tuesday, April 09, 2013

Formal requirements of affidavits

a) Must state the full title of the action as it appears in the cause or matter in which it is to be used.

b)It must state the introductory averments of the deponent; the deponent’s name, address, occupation, should be given, together with the declaration as to the truth.

c) It must be expressed in the first person throughout.

d) It should be divided into consecutively numbered paragraphs.

e) It should give figures and not words for dates, sums and other numbers.

f)It should contain a jurat and a signature by the deponent.

Jurat:

means 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.

Where it appears to the commissioner for oaths that the deponent is illiterate or blind, he or she must further endorse the jurat that he has read the affidavit to the deponent and explained its contents in a language understandable to the deponent, that the deponent seemed to understand it and that the signature or mark of the deponent was made in his or her presence. (See Form B of Oaths for Affidavits in the schedule to the Oaths Act).

Under section 5 of the Commissioners for Oaths (Advocates) Act, Cap. 5 and Section 6 of the Oaths Act, it is provided that:

“Every commissioner for oaths before whom any oath or affidavit is taken or made under this Act shall state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made.” See Teddy Namazzi v Anne Sibo (supra)

The effect of inconsistencies and falsehoods in affidavits was considered in the case of Bitaitana & 4 Others v Kananura (1977) HCB 34. Such affidavit becomes suspect and the application in support of which it is sworn must fail.

Regulation 15 of the Advocates Professional Conduct Regulations SI 267-2 provides that:

“An advocate shall not include in any affidavit any matter which he or she knows or has reason to believe is false.”

Where a deponent swears an affidavit in a representative capacity, he or she must show that he or she has authority to swear the affidavit either as an advocate, a holder of a power of attorney or by some other authority. Where there is no such authority, the affidavit is defective and incompetent.

Where there are any annextures to the affidavit, they must be duly sealed by the commissioner for oaths before whom the affidavit is sworn. He must identify them as exhibits by a certificate.

The body of the affidavit must contain relevant and admissible evidence in logical and special manner. Paragraphs which are irrelevant, scandalous, argumentative or otherwise oppressive will be struck out.

Order 19 rule 3(2) provides that:

“The costs of every affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter or copies of or extracts from documents shall, unless the court otherwise directs, be paid by the party filing the affidavit.”

An affidavit must not contain any alteration except where a person before whom it is sworn has initiated the alteration.

NOTE:

The Evidence Act does not apply to affidavits as contained in section 1 of the Evidence Act which states that:

“This Act shall apply to all judicial proceedings in or before the Supreme Court, the Court of Appeal, the High Court and all courts established under the Magistrates Courts Act, but not to affidavits presented to any court or officer nor to proceedings before an arbitrator.”

The rationale for this is that affidavits are a special way of giving evidence.See the case of Life Insurance Corporation of India v Panesar (1967) EA 615

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Difference between Affidavits and Statutory Declarations

Difference between Affidavits and Statutory Declarations

Tuesday, April 09, 2013

An affidavit is a written statement on oath that sets out matters that are within the knowledge and belief of the person making it. A person who swears or depones to an affidavit is referred to as a deponent.

An affidavit is similar in form to a statutory declaration which is also a statement made on oath setting our matters within the deponent’s knowledge and belief. The difference between the two documents in Uganda arises from the Statutory Declarations Act Cap. 22 which provides in section 2 that:- “After the commencement of this Act, no affidavit shall be sworn for any purpose, except—

(a) where it relates to any proceedings, application or other matter commenced in any court or referable to a court; or
(b) where under any written law an affidavit is authorised to be sworn.”

Section 3 of the Act states that:
“(1) In every case to which section 2 does not apply, a person wishing to depone to any fact for any purpose may do so by means of a statutory declaration.
(2) Where any person has sworn to an affidavit for any purpose other than a purpose referred to in section 2, that affidavit shall, nevertheless, be taken for all purposes to be a statutory declaration.”

The distinction that arises from a reading of the two provisions is that affidavits are restricted to court matters while statutory declarations are restricted to other matters not referable to court.

Whenever evidence is given by affidavit, there should be a reply to that affidavit. The rationale for this is that such evidence has to be tested in order for court to verify its credibility. Where facts sworn in as affidavit are not denied or rebutted by the opposite party, the presumption will be that such facts are accepted. This principle was set out in the case of Massa v Achen (1978) HCB 297.

Rules governing affidavits
Order 19 rule 3(1) provides that: “Affidavits shall be confined to such facts as the deponent is able of his or her own knowledge to prove, except on interlocutory applications, on which statements of his or her belief may be admitted, provided that the grounds thereof are stated.”

This means that where affidavit evidence is given in a main suit, only those matters that the deponent knows of his own accord are to be included in the affidavit. See the case of Kaigana v Dabo Bourbon (supra)
Even where an affidavit is made on an interlocutory application, it must distinctly show which matters are based on the deponent’s knowledge and which on information and belief. Second hand information should have its source disclosed in the affidavit. In the case of Kabwimekya v Kasigwa (supra), it was held that an affidavit is defective where it does not disclose matters based on the deponent’s knowledge and those based on information and belief.

Every affidavit must comply with the Oaths Act. Section 6 of the Oaths Act provides that:

“Every commissioner for oaths or notary public before whom any oath or affidavit is taken or made under this Act shall state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made”.

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Notes on The Trial Process in Civil Procedure

Notes on The Trial Process in Civil Procedure

Tuesday, April 09, 2013

It may so happen that the facts agreed upon dispose of the matter, for example ownership or if it is found that there is no lease agreement , and then the court does not have to determine any matter. If there are questions which require the court’s determination, the court will proceed to set down the suit for hearing. It will proceed to appoint a hearing date. This hearing is what is commonly referred to as a trial.

The trial process begins with a scheduling conference.
The suit is set down for scheduling where the parties together with their counsel if represented are served with hearing notices from court for scheduling. They appear before a judge who on a preliminary inquiry from the parties if there are any matters or facts on which they agree.

The parties then set out those matters on which they do not agree for instance the defendant may be claiming to be a land holder which the defendant denies. Those points on which the parties differ and on which they desire a decision are listed and made the subject of scheduling.

The trial will begin by settlement of issues, that is, determining the material propositions of law and fact affirmed by one party and denied by the other. These may be issues of law or fact.

When issues of law are raised, then the court has to deal with issues of law first. For instance a party may raise the issue of limitation which means that a party is pleading the Limitation Act and the court need not try the other factual issues.

If the action is good in law, the court will proceed to determine the issues of fact. The plaintiff has the right to begin where there are no objections to process.

The plaintiff will begin by calling his or her witnesses, presenting his or her evidence for proof in court. That evidence is given by examining witnesses through the examination in chief. Questions are asked of each witness. They should not be leading questions. There should be no hearsay evidence. If one relies on documents, the witnesses should produce the documents to the court. The person competent to adduce the evidence should come up and adduce that evidence.

Having completed the examination in chief, it is the turn of the defendant to cross examine the plaintiff’s witnesses for the purpose of testing their veracity. This will also involve asking questions which bring out facts which have been left from the knowledge of the court. The plaintiff may re-examine his witness to water down facts from cross examination.

The plaintiff on completing his evidence will close his case. If he does not do so the court will order him to do so.

It will then be the defendant’s turn to open his defense by calling witnesses to counter the evidence adduced by the plaintiff.

In the same way, the defendant chef examines, plaintiff cross examines and the defendant re-examines.

If counsel re-examines a witness and he or she is uncooperative, then he may ask court to declare him hostile and then cross examines him.

When the defendant closes, the plaintiff opens up by submitting orally or written submissions with the consent of the court. The plaintiff submits on points of law and fact. He raises legal issues and resolves them. He is in essence saying that he has discharged the burden imposed on him and the court should give judgment to him.

That said and done, the defendant also submits. He will submit summarizing a case, making factual and legal submissions.

After the defendant’s submission, the plaintiff will exercise his right of reply. Having done so, the parties close their respective cases and that is the end of the hearing process.

However one has to note that the process provided above is commonly practiced by common wealth countries this process is not static; it is dependent on one’s jurisdiction, to learn on how a scheduling conference is carried out in your country, you have to consult a legal practitioner in your country.

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Mareva Injunction, -What is a mereva injunction ?

Mareva Injunction, -What is a mereva injunction ?

Tuesday, March 19, 2013

Under Pretrial Judgements and remedies are Mareva injunction (variously known also as a freezing order, Mareva order or Mareva regime), in Commonwealth jurisdictions, It is a court order which freezes assets so that a defendant to an action cannot dissipate their assets from beyond the jurisdiction of a court so as to frustrate a judgment. It is named after the case of  Mareva Compania Naviera SA v International Bulkcarriers SA [1975] 2 Lloyd's Rep 509,

In the UK the Civil Procedure Rules 1998 now define a Mareva order as a "freezing" order. It is widely recognized in other common law jurisdictions and such orders can be made to have world-wide effect. It is variously construed as part of a court's inherent jurisdiction to restrain breaches of its process.

The mareva injunctions are typically obtained without notice to the other side (ex parte) as to tip the defendant off would likely cause the prompt movement of the relevant assets before the Court could issue its injunction, thereby insulating the defendant from contempt.

In Aetna Financial Services Ltd. v. Feigelman 1985 1 SCR 2, Canada's Supreme Court stated that: "The gist of the Mareva action is the right to freeze exigible assets when found within the jurisdiction, wherever the defendant may reside, providing, of course, there is a cause between the plaintiff and the defendant which is justiciable in the courts of England. However, unless there is a genuine risk of disappearance of assets, either inside or outside the jurisdiction, the injunction will not issue".

The Ontario Court of Appeal, in a 1995 case, R v Consolidated Fastfrate Transport Inc. 40 CPC 3d 160, provided this comprehensive summary:

"A Mareva injunction is an exceptional form of interlocutory relief designed to freeze the assets of the defendant, in appropriate circumstances, pending determination of the plaintiff's claim. Execution, on the other hand, refers to the process by which a successful plaintiff may enforce a judgment. It encompasses those remedies available to a creditor after a court has declared that a sum of money is immediately due and owing by a debtor. A party obtaining a Mareva injunction is required to give an undertaking to pay damages in the event that any are suffered due to the defendant's inability to deal with the property. This is an irrelevant consideration insofar as an execution is concerned".

A Mareva injunction is a discretionary equitable remedy. It will only be granted to a person "who has clean hands." It is on this basis that the requirement for full and frank disclosure rests....

"The granting of an injunction also involves weighing the balance of convenience to the parties. It will be issued in circumstances where the plaintiff demonstrates that he will suffer irreparable harm if the injunction is not issued. Fairness to both sides is a consideration. By contrast, an execution can be issued as of right once a judgment has been obtained against the defendant. If the plaintiff has a valid judgment, considerations such as fairness and the "clean hands" of the plaintiff are irrelevant.

"A Mareva injunction operates in personam. In other words, the injunction is directed toward the defendant in person and not to the defendant's assets.

"The granting of a Mareva injunction does not give the plaintiff property, nor does it give the plaintiff a lien on the defendant's property. It gives no priority to the potential creditor over other claimants before or after judgment, nor does it affect the laws relating to insolvency. The defendant is restrained from disposing of his assets in the sense that to do so will constitute contempt of court, but the injunction does not affect the defendant's power to dispose of his assets."

In the case of MAREVA COMPANIA NAVIERA SA V INTERNATIONAL BULK CARRIERS (1980), ALLER 213 , the Court of Appeal refused to consider itself bound by the previous hearing on the subject  in which the defendant could not be compelled to give security before judgement.

Under the Ugandan Law, Mareva injunction can be obtained by evoking the powers of court Under the Judicature Act and S.98 of the CPA.

In the case of ABE MUGIMU V LUCIANO BASABUSA (1991) HCB 70 -J Karokora J,  as he then was  held that Mareva injunctions are evoked where the property is at a risk of being taken out of the country or sold  to obstruct or delay justice.

It should be noted that a mareva injunction is a harsh remedy and will only be granted if a number of conditions are fulfilled and most significant of all is that there must be a real risk that the defendant will dispose off the asset to frustrate any judgement before the plaintiff may obtain it.

A Moreva  injunction binds a 3rd party with knowledge of its existence.  Such 3rd party will normally be served with the order before defendant is served especially if that 3rd party has possession of the defendant’s assets.

The main conditions for the grant of a Mareva injunction are: -

That the claim is one over which the court has jurisdiction.

That the plaintiff has a good arguable case.

That the defendant appears to have assets within the jurisdiction

That there’s a real risk that those assets will be removed from the jurisdiction if an injunction isn’t granted.

That there’s a real risk that the defendant will be unwilling or unable to satisfy the plaintiff’s claim.

That there’s a balance of convenience of granting the injunction.

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Can An Injunction Against Government Be Issued

Can An Injunction Against Government Be Issued

Tuesday, March 19, 2013

An injunction, temporary or permanent cannot issue against government in various sates like under the laws of Uganda however there are certain exceptions to this rule which we shall look at in this post.  The rationale is that government machinery should not be brought to a halt and it should not be subjected to embarrassment.  This was reiterated in the case of AG V silver Springs Hotel S.C.C.A. No. 1/1989.  

Similarly, public authorities should not be restrained from exercising their statutory duties and power unless the plaintiff or applicant has an extremely strong case on the merits.

However, it should be noted that under administrative law, an applicant for judicial review can seek an order of injunction against government or its officers.  In the case of M V Home Office (1994) 1 AC 377, court issued an injunction to a minister of home office stopping him from deporting an immigrant.
In addition, an injunction can issue to a government authority or public body if it is acting contrary to the law or without authority from the law establishing it and especially if it is in violation of the constitution.

Interlocutory Injunction and third parties.

An interlocutory relief can have effect over and beyond the ambit/scope of the immediate dispute.  Therefore, an act in breach of an injunction by a person who was not the subject of that injunction could still amount to contempt of court if in carrying out of the act, the person intends to impede or prejudice the administration of justice.

Where an injunction is oppressive or interferes with the rights of 3rd parties, it may be discharged in appropriate cases.  A 3rd party who wasn’t a party to the proceedings in court may have an injunction discharged.

A defendant who seeks to discharge an interlocutory injunction must apply by notice of motion, to court which granted the injunction.

Discharge may be by order on any of the following grounds.

Material non disclosure on an ex-parte application.
Applicant’s non observance of the terms of the grant of the injunction.
Material changes in circumstances since the grant.
That the facts do not justify the grant.
The plaintiffs’ failure to prosecute the substantive claim sufficiently and expeditiously.
That the effect of the injunction is oppressive or interferes with the rights of the third parties.

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What is Inspection in civil procedings ?

What is Inspection in civil procedings ?

Tuesday, March 19, 2013

A party who has been served with a list of documents may inspect such documents other than any other document which the party may object to produce.  A list of documents normally contains a notice at the end specifying the time and number of days when the inspection may take place and the place of inspection.  Inspection entails both the examination of documents on the list or on the pleadings or affidavits and may also involve taking away some of such copies.

Discovery may be by disclosure followed by inspection of documents referred to in the pleadings as provided for under Order 10 rules 15 and 18. of Uganda

Under rule 15, any party to the suit can at any time issue a notice to the opposite party to produce documents for his or her inspection and to make copies of them where these documents are referred to in the other party’s pleadings or affidavits.  The effect of or not complying with the notice of inspection is to disqualify such documents from being put in evidence.

The form of the notice is provided for in order 10 rule 16 which provides that:

“Notice to any party to produce for inspection any documents referred to in his or her pleading or affidavits shall be in Form 7 of Appendix B to these Rules, with such variations as circumstances may require.”

Form 7.

Notice to Produce Documents.

(Order X, rule 16)

(Title as in Form 1, supra.)

Take notice that the plaintiff (or defendant) requires you to produce for his

or her inspection the following documents referred to in your (plaint or

written statement or affidavit dated the ______ day of _______________,

20 ____ ).

(Describe documents required.)

_________________________________

XY, Advocate for the _______________

_________________________________

To Z, Advocate for the ______________

Under rule 17 of Order 10, any party receiving such notice shall within ten days from the receipt of such notice deliver to the party giving the same a notice stating the time, within three days from the delivery thereof at which the document or such of them as he or she does not object to produce for inspection at the office of his or her advocate  or in case of Banker’s books or books of account or books in constant use of any trade or business at their usual place of custody. 

Such notice shall be in Form 8 of Appendix B with such variations as the case may require (Order 10 rule 17(2) CPR).

Form 8.

Notice to Inspect Documents.

(Order X, rule 17)

(Title as in Form 1, supra.)

Take notice that you can inspect the documents mentioned in your notice

of the ______ day of _______________, 20 ____, (except the documents

numbered _________________ in that notice) at __________________

(insert place of inspection) on Thursday next, the ______________ instant,

between the hours of 12 and 4 o’clock ________.

Or, that the plaintiff (or defendant) objects to give you inspection of

documents mentioned in your notice of the ______ day of

_______________, 20 ____, on the ground that _____________________

_________________________ (state the ground).

If a party objects to production of any documents, he or she must give grounds of such objection by way of notice. Despite the objection, the court may, or has powers to, order production of such documents.
If a party omits to give notice of time for inspection or  if he offers inspection elsewhere other than the office of his advocate, court may make an order for inspection in such manner as court may think fit (Order 10 rule 18(1)).

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What are Interrogatories in Civil proceedings ?

What are Interrogatories in Civil proceedings ?

Tuesday, March 19, 2013

These are a brand of discovery and are normally in form of questions addressed to an opposing party in the action aimed at discovery of facts.  The power to administer interrogatories is derived from section 22 CPA and Order 10 rule 1 CPR. The general view is that interrogatories are relatively complex, expensive and require great care in drafting if they are to be effective.

Besides discovery of documents, the parties may also require discovery of facts. This may be required especially in those cases where there are no material documents to be discovered. For it is in those very cases that there is bound to be conflict of evidence and this makes it more desirable for the parties to ascertain what are the exact points on which they will be in conflict  before the hearing.
Court may allow a party to deliver a string of questions to the other party and compel the other to answer them on oath before the trial. The admission obtained by means of these interrogatories often saves time and expense  in preparing for trial and either party may at the trial lead in evidence any one or more answers obtained by way of interrogatories.

See:  Aganwal v Official Receiver [1967] EA 585
The essential requirements for proper interrogatories are that they should:
Relate to a matter in question between the parties.
Be necessary either for disposing fairly of the matter or saving costs.  It is entirely in the discretion of court as to whether an interrogatory will be allowed or not. 

An application for interrogatories is by chamber summons as provided under Order 10 Rule 24. Such application must be made within 21 days of the last pleading.  This therefore, means that a party seeking to take out interrogatories must act promptly.
Interrogatories are only allowed if they relate to any matter in question.   According to Order 10 Rule 1(b), interrogatories which do not relate to any matters in question shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross examination of a witness.  Relevance has been explained in the case of Marriott V Chamberlain (1586) 17 Q.B.D. 154 in the following terms;
that the right to interrogate is not confined to facts directly in issue but extends to any facts the existence or non-existence of which is relevant to the existence or non-existence of the facts directly in issue.

There are three main limitations for an application for interrogatories;
Interrogatories going purely to the credibility of witnesses are not allowed.
Questions can only be asked on matters relevant to the present action and not future actions.
Fishing interrogatories are not allowed.
Interrogatories must be directed to the discovery of facts

Necessity
Interrogatories may be administered only where they are necessary for disposing fairly of the action with minimal costs.  Interrogatories will not normally be allowed if witnesses are likely to be called at trial to give evidence on the same matters.
If an interrogatory requires lengthy investigation such that the answer will be of minimal probative value, the interrogatory will be disallowed as unnecessary for disposing fairly of the suit.
Under Order 10 Rule 2, it is provided that in deciding whether to give leave to deliver interrogatories, the court takes into account offers made by the other party to give particulars and make admission or produce documents relating to any matter in question.  This should be taken into account to establish whether costs will be saved by the interrogatories.

Facts supporting the opponent’s case
Where interrogatories are oppressive, they may be disallowed.  An interrogatory may be relevant to the issues raised in the case but may still be disallowed on the premises that it’s value is outweighed by the inconvenience involved in answering it.

An interrogatory may be oppressive where it’s not precisely formulated so that the party being interrogated doesn’t know exactly what is being asked.
An interrogatory may also be oppressive where it asks for details of the other party’s information used in the manufacturing industry.
Interrogatories are answered by affidavits as provided under 0.10R8 and they are building on an interrogated party in the sense that an answer is intended to be an admission by the party who makes it.  In most cases answers may be by simple yes or no but where explanations are included, they must be unambiguous precise and reasonable.
If the answers provided are insufficient the interrogating party may seek an order that opponent should file a further and better answer and the court may order the latter to answer further either by way of affidavit or upon an oral examination.
Answers or part answers to interrogatories may be put in evidence at the trial.
A party may object to answering on the guard of privilege and such objection is conducive unless the contrary is shown.
Where a party fails to answer interrogatories the court may dismiss the action or order the defence to be struck out as the case may be.
The court also has power to convict the reporting party to prison for contempt of court.

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What is a Discovery under the Civil Procedure Law ?

What is a Discovery under the Civil Procedure Law ?

Tuesday, March 19, 2013

Under common law jurisdictions, discovery is a process by which the parties to litigation disclose to each other documents in their possession, custody or power relating to any matter in question between them in the litigation. The power to order discovery is embedded in laws that govern a particular country . in Uganda ,it is section 22 (a) of the CPA(Civil Procedure Act) and Order 10 of the CPR(Civil Procedure Rules). today i will talk about it in the context of the common law system referring to Uganda mainly.

Documents which can be subject to discovery include, but are not limited to, originals and copies of originals, tape recordings and computer discs.
Discovery may be automatic or ordered and may relate to general or specific documents. It may also relate to documents not within the jurisdiction.

Under Order 6 rule 2 CPR, every pleading shall be accompanied by a brief summary of evidence to be adduced, a list of witnesses, a list of documents and a list of authorities to be relied on; except that an additional list of authorities may be provided later with the leave of court.

Under Order 7 rule 14 CPR, it is provided that;
(1) Where a plaintiff sues upon a document in his or her possession or power, he or she shall produce it in court when the plaint is presented, and shall at the same time deliver the document or a copy of it to be filed with the plaint.
(2) Where a plaintiff relies on any other documents (whether in his or her possession or power or not) as evidence in support of his or her claim, he or she shall enter the documents in a list to be added or annexed to the plaint.”
Under Order 7 rule 15 CPR, where any such document is not in the possession or power of the plaintiff, he or she shall, if possible, state in whose possession or power it is.
For evidential purposes, it is desirable that a party sees the material documents in the hands of the opposite party because what is sought is an amicable settlement of the dispute and not warfare.

Where a party is in doubt as to the documents in the hands of the opposite party, he or she may ask the opposite party to disclose the document in his or her possession. If the party does not yield to the request, then the provisions in Order 10 rule 12 come into play.

According to Order 10 rule 12 (1), any party may, without filling any affidavit, apply to the court for an order directing any other party to the suit to make discovery on oath of documents, which are or have been in his or her possession or power, relating to any matter in question in the suit.

The main aim of discovery is to save costs and to dispose of the matter fairly. Discovery may be ordered for documents or objects which are of evidential value.

A party to the litigation is obliged to disclose to another party not only documents which may assist his case but also documents which may damage his case as long as the documents relate to any matter in question. This is an important feature of litigation which ensures that the parties are in possession of all relevant documents to enable each to prepare his or her case properly (subject to the exceptions of legally privileged and "without prejudice" documents).

In Dresdner Bank v Sangobay Estates (1971) ULR 149, the plaintiff sued for five separate bills of exchange.

Documents which are subject to discovery must be relevant to the action. The classic test of relevancy is set out in Compagnie Financière du Pacifique v. Peruvian Guano Co. (1882) 11 QBD 55 in which the Court held that any document which, it is reasonable to suppose, "contains information which may enable the party (applying for discovery) either to advance his own case or to damage that of his adversary, if it is a document which may fairly lead him to a train of inquiry which may have either of those two consequences" must be disclosed.

The above definition of relevance is very wide. Any documents which are only marginally relevant in the ordinary sense must also be disclosed. In construction litigation, "discovery is often lengthy, tedious and expensive, resulting in an unwieldy mass of duplicated paper. But the requirement to disclose all documents which are relevant frequently makes this unavoidable" (page 492, Keating on Building Contracts, 6th Edition).

The wide definition of relevancy in Peruvian Guano was criticized in another English Court case O Co. v. M. Co. [1996] 2 Lloyd's Rep.347. The judge commented that the principle in Peruvian Guano was never intended to justify demands for disclosure of documents at the far end of the spectrum of materiality which on the fact of it were unrelated to the pleaded case of the plaintiff or defendant and which were required for purely speculative investigation. The excessively wide application of the definition was then criticized that it contributed more to the increase of litigation costs than any other factor other than the development of the photocopying machine.

Whilst the judge's comments in O Co. v. M. Co. are probably justified in many cases, limited discovery on the other hand may be used by evasive respondents as a delaying tactic which results in substantial costs being wasted in pursuing specific discovery in arbitrations. The problem is more acute in construction arbitration where the sub-contractor is a party.
However the courts will not allow discovery to fish for a case. A party who does not have the material for even an arguable case but hopes to find them from other side is said to be fishing.
Improper use of discovered matter is discouraged by the courts. Such improper use may include using discovered material to start new causes of Action; usually the party seeking discovery will give an undertaking not to use the discovered material for any purpose other than in furtherance of the present action.

Privileged documents

A party making a discovery may object to producing privileged documents for inspection. Where privilege is claimed for any document, the court may itself inspect it in order to decide whether the claim is valid. Such documents include:

Communication between counsel and client: Any document written by counsel and addressed to his client or written by client to counsel is privileged provided it is intended to be confidential and is written with the object of obtaining or giving legal advice for assistance. It is not necessary that the document should have been prepared with a present or any litigation in mind. Instructions and briefs to court and counsel’s opinions as well as draft notes are also privileged.

Documents prepared with a view to litigation: All documents which are prepared for the purpose of assisting a party or his legal advisors on actual or anticipated litigation are privileged whether or not they relate to obtaining the necessary evidence.

Without prejudice communications: Communications between parties or their legal advisers are not privileged thus for instance, letters written by an opponent or his/her adviser may be produced in evidence by the party to whom they are addressed e.g. to establish admissions or to use in cross examination in order to show inconsistency in versions of facts put forward. An exception to this principle are communications which are made without prejudice. These are made for purposes of enabling the parties to negotiate in order to settle a dispute without a correspondence relating to the negotiations being used against them should the negotiations fail. In such circumstances, letters marked without prejudice whether litigation was current or not will be privileged and may not be put in evidence unless both parties consent.

So long as the correspondence is in the course of negotiations, it may be privileged even if it is not expressly marked with the words without prejudice.

Ordered discovery

The court has a discretion to order discovery of documents in cases where automatic discovery is not applicable. An order for discovery is not limited to actions began by plaint but applies to any action began by an originating process.
The court may also order discovery in the following cases:
Where a party fails to make automatic discovery when he was under an obligation to do so.
Where disclosure is insufficient.
Where a party seeks specific discovery of a document.
Where a party seeks discovery as a tracing remedy only.

The purpose of discovery is to ensure that the issues which are to be decided by the trial judge are clearly defined as much as possible and ensure that the trial takes place within the estimated time set out and the order for directions and discovery must be completed before a case is set down for trial.

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