Uganda Legal Information Institute - Preliminary Objections https://old.ulii.org/tags/preliminary-objections en Katureeba & Anor Vs Uganda Revenue Authority (CIVIL APPEAL NO.55 OF 2012) [2018] UGCA 77 (11 October 2018); https://old.ulii.org/ug/judgment/court-appeal-uganda/2018/77 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/civil-procedure" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Civil Procedure</a></li><li class="field-item odd"><a href="/tags/appeals-and-reviews" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Appeals and reviews</a></li><li class="field-item even"><a href="/tags/conduct-proceedings" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Conduct of proceedings</a></li><li class="field-item odd"><a href="/tags/preliminary-objections" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Preliminary Objections</a></li></ul></section><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-dfff63a42e5edabd91276275c8ba5f5d"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/court-appeal-uganda/2018/77/court-appeal-uganda-2018-77.pdf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"><iframe class="pdf" webkitallowfullscreen="" mozallowfullscreen="" allowfullscreen="" frameborder="no" width="100%" height="600px" src="/sites/all/libraries/pdf.js/web/viewer.html?file=https%3A%2F%2Fold.ulii.org%2Fsystem%2Ffiles%2Fjudgment%2Fcourt-appeal-uganda%2F2018%2F77%2Fcourt-appeal-uganda-2018-77.pdf" data-src="https://old.ulii.org/system/files/judgment/court-appeal-uganda/2018/77/court-appeal-uganda-2018-77.pdf">https://old.ulii.org/system/files/judgment/court-appeal-uganda/2018/77/court-appeal-uganda-2018-77.pdf</iframe> </div> </div> </div> </div> </div> Wed, 14 Nov 2018 08:53:25 +0000 Ben Mulingoki 29159 at https://old.ulii.org Kubeketerya Vs Waira Kyenalabye & Anor (ELECTION PETITION APPEAL NO. 97 OF 2016) [2017] UGCA 107 (1 December 2017); https://old.ulii.org/ug/judgment/court-appeal-uganda/2017/107 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/civil-procedure" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Civil Procedure</a></li><li class="field-item odd"><a href="/tags/appeals-and-reviews" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Appeals and reviews</a></li><li class="field-item even"><a href="/tags/notice-appeal" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Notice of Appeal</a></li><li class="field-item odd"><a href="/tags/conduct-proceedings" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Conduct of proceedings</a></li><li class="field-item even"><a href="/tags/preliminary-objections" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Preliminary Objections</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p> </p> <p><strong>THE REPUBLIC OF UGANDA</strong></p> <p><strong>IN THE COURT OF APPEAL OF UGANDA AT KAMPALA</strong></p> <p><strong>ELECTION PETITION APPEAL NO. 97 OF 2016</strong></p> <p><strong>        KUBEKETERYA JAMES …………………………………………….. APPELLANT</strong></p> <p><strong>                                                                                VERSUS </strong></p> <ol> <li><strong>WAIRA KYEWALABYE </strong></li> <li><strong>ELECTORAL.COMMISSION………….………………………… RESPONDENTS</strong></li> </ol> <p> </p> <p><strong>        CORAM:           HON. MR JUSTICE REMMY KASULE, JA</strong></p> <p><strong>                                    HON. MR. JUSTICE KENNETH KAKURU, JA</strong></p> <p><strong>                                   HON. MR. JUSTICE GEOFFREY KIRYABWIRE, JA</strong></p> <p><strong><u>JUDGMENT OF THE COURT</u></strong></p> <p>This is an appeal arising from the decision of Hon. Lady Justice Lydia Mugambe delivered at High Court of Kampala on the 3<sup>rd</sup> day of October 2016, in which the Court dismissed the petition instituted by the appellant.</p> <p>The appellant being dissatisfied with the decision of the High Court filed this appeal. He filed the Notice of Appeal on 6<sup>th</sup> October, 2016 and a memorandum of Appeal on 21<sup>st</sup> October 2016. The record of appeal was filed on 15<sup>th</sup> December, 2016.</p> <p>The appellant contested for a seat of Member of Parliament for Bunya County East Constituency in Mayuge District. The Elections were held on 18<sup>th</sup> February 2016, where the appellant lost the elections to the 1<sup>st</sup> respondent. Being aggrieved by the results he filed a petition to the High Court to nullify the Election.  The High Court dismissed the petition for lack of satisfactory evidence hence this appeal.</p> <p>The grounds as per the Memorandum of Appeal are as follows;-</p> <ol> <li><em>That the trial Judge erred in law and fact when she failed to properly evaluate the evidence on record and came to a wrong conclusion that she was not satisfied by the evidence adduced that the 1<sup>st</sup> respondent bribed voters with water tank and maize grains thereby arriving at a wrong decision</em></li> <li><em>The learned trial Judge erred in law and fact in holding that there was no evidence that the 1<sup>st</sup> respondent and his agents committed acts of violence and intimidation against the petitioner and his agents and supporters but instead held that it was the petitioner who meted violence on the 1<sup>st</sup> respondent and his supporters thereby arriving at a wrong conclusion that occasioned a miscarriage of justice.</em></li> <li><em>The learned trial Judge erred in law and fact when she failed to hold that the 1<sup>st</sup> respondent had a militia group called Majegere brigade and Majegere squad that meted out violence on the petitioners agents and supporters thereby arriving at a wrong conclusion.</em></li> <li><em>The learned trial Judge erred in law and fact when she failed to hold that failure to include Election results from 11 polling stations by the 2<sup>nd</sup> respondent amounted to deliberate disenfranchisement of voters at the expensed of the petitioner thereby arriving at a wrong conclusion</em></li> <li><em>The learned trial Judge erred in law and fact by admitting and relying on declaration of results forms from the 2<sup>nd</sup> respondent in re-examination that had not been attached to the returning officer’s affidavit in reply and rejecting the petitioner’s declaration of result forms.</em></li> <li><em>The learned trial Judge erred in law and fact when she held that the acts of violence and irregularities that were there in the election did not affect the results in a substantial manner hence coming to a wrong conclusion. </em></li> <li><em>The learned trial Judge erred in law and fact when she ordered the petitioner to pay cost of the petition to the 1<sup>st</sup> respondent. </em></li> </ol> <p>At the hearing of this appeal learned Counsel <em>Mr. Mujurizi Jamil</em> appeared for the appellant while <em>Mr. Kennedy Lule</em> appeared for the 2<sup>nd</sup> respondent and held brief for <em>Mr. Ssekaana Musa</em> for the 1<sup>st</sup> respondent.</p> <p>When this appeal came up for hearing before us, it was brought to the attention of Court that, there was a pending Ruling in <em>Election Petition Application No. 61 of 2016</em> arising out of this appeal.</p> <p>That application had been heard by a Coram of three justices, S.B.K. Kavuma, Richard Buteera and Geoffrey Kiryabwire, JJA and the Ruling reserved to be delivered on notice. Up todate the said Ruling has not been delivered. Justice Kavuma, has retired and Justice Buteera appointed to Supreme Court. We allowed the appeal to proceed and the respondent to raise the preliminary objection during the hearing of this appeal which he did.</p> <p>Since the issues raised in the preliminary objection have the effect of disposing of the whole appeal, we shall have to deal with those issues first.</p> <p>The objection raised by the respondents is that the appellant filed a Notice of Appeal on 6<sup>th</sup> October, 2016 the Judgment having been delivered on 3<sup>rd</sup> October 2016. The Notice of Appeal was served on the respondents on the 7<sup>th</sup> of October 2016, a day after its filing. Counsel submitted that the appellant had 7 (seven) days within which to file a Memorandum of Appeal. They lapsed on Thursday 13<sup>th</sup> October 2016. The appellant filed the Memorandum of Appeal on Friday 21<sup>st</sup> October 2016 which was 8 (eight) days out of time and that is in contravention of <em>Rule 30 (a)</em> and <em>(b)</em> of the Parliamentary Elections (Interim Provision) Rules S. I. 142-2. He prayed to this Court that the Memorandum of Appeal should be struck out for being filed out of time.</p> <p>The other ground for striking out the appeal, according to Counsel for the respondent was that the record of appeal should have been filed on Monday 14<sup>th</sup> November 2016 but the same was filed on 15<sup>th</sup> December, 2016 which was more than the 30 (thirty) days stipulated in the law and was therefore in contravention of <em>Rule 31</em> of the Parliamentary Elections (Interim Provisions) Rules.</p> <p>Counsel for the respondent submitted that election proceeding are special and they must be expeditiously handled and timelines must be complied with. According to Counsel, the appellant could have perused the Court record even before it was typed and be able to formulate the grounds of appeal and file the Memorandum of Appeal in compliance with the law.</p> <p>In reply Counsel for the appellant conceded that, the Memorandum and record of Appeal had both been filed late. He contended that, he did not have the judgment and record of proceedings to formulate the grounds of appeal, within the stipulated time.</p> <p>He submitted that, a Memorandum of Appeal is formulated from the record of proceeding and judgment of the lower Court. According to Counsel, the Judgment of the lower Court was delivered on 3<sup>rd</sup> October 2016, following which the appellant filed the Notice of Appeal on 6<sup>th</sup> October 2016 together with a letter requesting for certified copy of both the proceedings and the Judgment.  The certified proceedings were ready on 15<sup>th</sup> November 2016.</p> <p>Counsel contended that, the appellant had taken a step and applied for a draft copy of the Judgment when it was still being typed. He had requested and was able to peruse the draft Judgment and the uncertified copy of proceedings, following which he was able to formulate the grounds of appeal. He filed the Memorandum of Appeal on 21<sup>st</sup> October 2016, almost a month before obtaining a certified copy of proceedings and Judgment of the Court.</p> <p>Counsel submitted that, the Parliamentary Election Interim Petition Rules have no specific provision providing for a procedure to be followed when a certified copy of the lower Court judgment and Court Proceedings are not available.</p> <p>According to Counsel, <em>Rule 36</em> of the Parliamentary Elections (Interim Provisions) Rules permits this Court to apply the Court of Appeal Rules in such a scenario, in which case <em>Rule 83</em> of the Rules of this Court would apply and it permits Court to take into account the time between preparation of the record of proceedings when computing time for filing a Memorandum of Appeal. Counsel argued that, the time for filing the Memorandum of Appeal started running from the 15<sup>th</sup> of October 2016 when the lower Court proceedings were availed and 1<sup>st</sup> December 2016 when the certified copy of the Judgment was availed. He submitted that there was no lapse of time in filing both the Memorandum of Appeal and record of appeal. He asked the Court to dismiss the preliminary objection and to determine the appeal on its merits.</p> <p>We have carefully listened to both Counsel in this appeal, perused the Court record and also considered the authorities cited to us.</p> <p>We now proceed to resolve the issue raised in the Preliminary Objection, that the appeal before Court is incompetent and the same should be struck out because both the memorandum and record of appeal were filed out of time. .</p> <p>This Court has had occasion to consider and state the law as to when the Memorandum of Appeal and the record of appeal should be filed in Election Petitions and the effect of failure to comply.</p> <p>In <em>Election Petition Application No. 24 of 2011 Bakaluba Mukasa Peter</em> and the <em>Electoral Commission Vs Nalugo Mary Margret Sekiziyivu</em>, this Court considering an application on all fours with the instant one and it held as follows;-</p> <p><em>“In the matter now before us, the applicant is claiming the respondent failed to take two essential steps in the proceedings within the time prescribed by the rules. The first step is that she failed to file a Memorandum of Appeal within seven days in accordance with Rule 30 (supra). The Rule states;-  </em></p> <p><em> A Memorandum of Appeal shall be filed with the registrar</em></p> <ul> <li><em>In a case where oral Notice of Appeal has been given, within fourteen days after the notice was given.</em></li> <li><em>In case where written Notice of Appeal has been given, within fourteen days after notice was given.</em></li> </ul> <p><em>The respondent filed a written notice of appeal on 27<sup>th</sup> July 2011. The computation of seven days began to run from that day. The Memorandum of Appeal ought to have been filed on or before 10<sup>th</sup> August 2011.</em></p> <p><em>The second essential step which the applicant claims was not taken within the time prescribed by the rules was failure to file the record of appeal within 30 days after filing the Memorandum of Appeal in accordance with Rule 31 of the Parliamentary Elections Petitions Rules S. I. 142-2. The rule provides;</em></p> <p><em>The appellant shall lodge with the registrar the record of appeal within thirty day after filing by him or her of the Memorandum of Appeal.”</em></p> <p><em>This rule which is couched in mandatory words was not complied with by the appellant. The appellant conceded that, he failed to comply with the provisions of Parliamentary Election Petition Rules (supra) but contended that he applied for the record of proceedings and the same was not availed within time thus the failure to file the Memorandum and record of appeal within the prescribed time. </em></p> <p><em>Matters concerning elections litigation by law are supposed to be heard expeditiously. This is contained in Article 140 of the Constitution of Uganda which provides:-</em></p> <p><em>“(1) Where any question is before the High Court for determination under Article 86 (1)of this Constitution, the High Court shall proceed to hear and determine the question expeditiously and may, for that purpose suspend any other matter pending before it.</em></p> <p><em>(2) This Article shall apply in a similar manner to the Court of Appeal and the Supreme Court when hearing and determining appeals on questions referred to clause (1) of this article.”</em></p> <p>The wording of this article are reproduced almost in similar terms in <em>Sections 63 (2)</em> and <em>66 (4)</em> of the Parliamentary Elections Act. The rules of procedure which were made under the Act also use similar words of expeditious disposal of election matters see: <em>Rules 13</em> and <em>33</em> of the Parliamentary Elections Petitions Rules.</p> <p>The rules of procedure were made to enable the expeditious disposal of election related matters and therefore the luxury provided by Rule 83 of the Court of Appeal Rules are not available, in our view, to the appellant.</p> <p>In <em>Civil Application No. 22 of 2011, The Electoral Commission and Another Vs Piro Santos Eruga</em> this Court held that;-</p> <p><em>“Elections are serious matters of a state with its citizens. As elections are held, the outcome announced, the electorate must know their political leader quickly and assuredly. There must be limited or no uncertainty about this. Roles of elected representatives are many and diverse vis-a-avis their electors. To perform the roles well elected must be sure of his post and the elector of his leader. And the sooner the better to give that certainty. So either the election is accepted at once or if challenged, that challenge must be moved along to the end swiftly enough to restore certainty. And for that, election petitions are governed by this Act with its rules in a very strict manner. Election petition law and the regime in general, is a unique one and only intended for elections. It does not admit other laws and procedures governing other types of disputes, unless it says to itself. Here it spells out firmly and clearly that a petition must be presented and served within 28 days of the publication of election results. Anything outside that time is invalid and this one here is thus invalid.” (sic).</em></p> <p>We agree with the above stated legal principles and we shall apply them to the facts of this appeal.  The judgment was delivered on 3<sup>rd</sup> October, 2016, the appellant filed the Notice of Appeal on 6<sup>th</sup> October, 2016 and the same was served on respondents on 7<sup>th</sup> October, 2016.  Under Rule 30 (b) of the Parliamentary Elections Act (Interim Provisions) Rules S. I. 142-2, the Memorandum of Appeal should be filed within seven day after the Notice is given. The appellant did not comply with this provision, he filed the Memorandum of Appeal on the 21<sup>st</sup> of October, 2016 which was 8 days out of time. Rule 31 of the Parliamentary Elections Act (Interim Provisions) Rules (supra) provides that the record of appeal should be filed within 30 days after filing the Memorandum of Appeal, the appellant filed the same on 15<sup>th</sup> December, 2016 which was a contravention of Rules of the Rules.</p> <p>It is conceded by the appellant that he failed to comply with the above provisions. However, he appears to rely on <em>Rule 83</em> of the Rules of this Court, which grants an automatic extension of time. The question as to whether <em>Rule 83</em> of the Rules of this Court is applicable to Parliamentary election petition matters has been considered and determined by this Court in a number of petitions similar to this one before us.</p> <p>In <em>Kasibante Moses Vs Katongole Singh Marwaha, Court of Appeal Election Petition Application No. 8 of 2012</em>,  stated as follows at page 12-13;-</p> <p><em>“At any rate the rules of procedure dealing with election litigation have no provision with writing of letters requesting for record of proceedings and the exclusion of the period spent on compiling the record from computation of the time within which to file the appeal. To allow an intending appellant to take his or her time to file the record of appeal outside the time set by the rules without exceptional circumstances being shown would defeat the purpose of the time frame provided in the Constitution, the Parliamentary Elections Act and the rules made there under for the expeditious disposal of elections matters. The respondent in his affidavit did not state the dates when he visited the civil registry and he did not give the names or names of the officer who gave him information that the record of proceedings was not ready to write letters and sit back without being vigilant, The registry staff, in our view, has no interest whether or not an intending appellant files the appeal within the time allowed by the rules.”</em></p> <p><em>Rule 83</em> of the Rules of this Court is applicable only in respect of Local Council Elections and not in Parliamentary election petitions. See: <em>Wanyama Gilbert Mackmot Vs Hisa Albert and Electoral Commission, Court of Appeal Election Petition No. 99 of 2016. </em>(Unreported) </p> <p>In <em>Kasibante Moses Vs Katongole Singh, (supra)</em> again this Court held as follows at pages 3-4 of the Judgment.</p> <p><em>“It is now settled as the law that it is the duty of the intending appellant to actively take the necessary steps to prosecute his/ her intended appeal. It is not the duty of the Court or any other person to carry out his duty for the intending appellant. Once Judgment is delivered, the intending appellant has to take all the necessary steps to ensure the appeal is being in time. See: Utex Industries Ltd Vs Attorney General, Supreme Court Civil Application No. 52 of 1995 and S.B.Kinyatta and Another Vs Subramian and Another, Court of Appeal Civil Application No. 108 of 2003.</em></p> <p><em>In case of an election petition appeal, the intending appellant has a higher duty to expeditiously pursue every step in the appeal so that the appeal is disposed of quickly. This is so because Section 66 (2) of the Parliamentary Elections Act and Rule 33 of the Parliamentary Election Petitions) enjoins this Court to hear and determine an appeal expeditiously and may, for that purpose, suspend any other matter pending before it. Rule 34 requires this Court to complete the appeal within thirty (30) days from lodging the record of appeal, unless there are exceptional grounds. Time is thus of the essence in election petition appeals.”</em></p> <p>We agree with the position of the law as set out above.</p> <p>Election petitions have to be handled expeditiously. The rules and timeliness set for filing proceedings are coughed in mandatory terms. They must be strictly interpreted and adhered to.</p> <p>We find that the appellant failed to take the essential steps of filing the Memorandum and record of appeal within the stipulated time.</p> <p>Consequently, the Notice of Appeal herein is struck out, we find that no appeal lies in this Court in respect of High Court Election Petition No. 008 of 2016. The Judgment of the lower Court therefore stands unchallenged and should be upheld.  Had we not struck out the Notice of Appeal, we would still have dismissed it as all the grounds of appeal had no merit whatsoever.</p> <p>We so order.     </p> <p><strong>Dated</strong> at <strong>Kampala</strong> this  1<sup>st</sup> day of  December 2017.</p> <p> </p> <p><strong>……………………………………………………</strong></p> <p><strong>HON. JUSTICE REMMY KASULE</strong></p> <p><strong>JUSTICE OF APPEAL</strong></p> <p> </p> <p> </p> <p><strong>………………………………………………………</strong></p> <p><strong>HON. JUSTICE KENNETH KAKURU</strong></p> <p><strong>JUSTICE OF APPEAL</strong></p> <p> </p> <p><strong>…………………………………………………………….</strong></p> <p><strong>HON. JUSTICE GEOFFREY KIRYABWIRE</strong></p> <p><strong>JUSTICE OF APPEAL</strong></p> <p> </p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-dd5200c934383a0107df2229bc29d0fc"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/court-appeal-uganda/2017/107/court-appeal-uganda-2017-107.pdf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a>, <a href="https://old.ulii.org/system/files/judgment/court-appeal-uganda/2017/107/court-appeal-uganda-2017-107.doc" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"><iframe class="pdf" webkitallowfullscreen="" mozallowfullscreen="" allowfullscreen="" frameborder="no" width="100%" height="600px" src="/sites/all/libraries/pdf.js/web/viewer.html?file=https%3A%2F%2Fold.ulii.org%2Fsystem%2Ffiles%2Fjudgment%2Fcourt-appeal-uganda%2F2017%2F107%2Fcourt-appeal-uganda-2017-107.pdf" data-src="https://old.ulii.org/system/files/judgment/court-appeal-uganda/2017/107/court-appeal-uganda-2017-107.pdf">https://old.ulii.org/system/files/judgment/court-appeal-uganda/2017/107/court-appeal-uganda-2017-107.pdf</iframe> </div> </div> </div> </div> </div> Tue, 12 Dec 2017 09:03:17 +0000 Ben Mulingoki 28123 at https://old.ulii.org Asha Chad v Attorney General (Civil Suit No.693 Of 1992) ((Civil Suit No.693 Of 1992)) [1993] UGHC 10 (15 September 1993); https://old.ulii.org/ug/judgment/high-court/1993/10 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/civil-procedure" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Civil Procedure</a></li><li class="field-item odd"><a href="/tags/conduct-proceedings" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Conduct of proceedings</a></li><li class="field-item even"><a href="/tags/preliminary-objections" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Preliminary Objections</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p>&nbsp;</p> <p><strong><u>TH</u></strong><strong><u>E REPUBLIC OF UGINDA</u></strong><br /> <strong><u>IN THE HIGH COURT OF UGANDA A</u></strong><strong><u>T KAMPALA</u></strong><br /> <strong><u>CIVIL SUIT </u></strong><strong><u>NO.</u></strong><strong><u>693 OF </u></strong><strong><u>1992</u></strong></p> <p><strong>ASHA</strong><strong> CHAD:::::::::::::::::::::::::::::::::::::::::::</strong><strong>:::::::::::::</strong><strong>::APPELLANT/</strong><strong>PLAINTIFF </strong></p> <p><strong>VERSUS</strong></p> <p><strong>ATTORNEY </strong><strong>GENERAL:::::::::::::::::::::::</strong><strong>::::::::::</strong><strong>:::::::</strong><strong>RESPONDENT/DEFENDANT<br /> BEFORE: </strong><strong><u>TH</u></strong><strong><u>E HONOURABLE JUSTICE MUKANZA</u></strong></p> <p><strong><u>R UL I N G</u></strong></p> <div>When this appeal came for hearing one Mr. Serwanga the learned Counsel from Katende and Sempebwa advocates raised a preliminary objection. He submitted that they had been instructed by the owner of the suit property to appear in the proceedings and pursue his interest in relation to his property. His client is the registered proprietor of the suit property and he is in possession<strong> </strong>and any decision arrived at in this court was likely to affect him. In the circumstances he applied for an<em> </em>adjournment so that he might be added as a party inorder that the Court may reach a just decision. He prayed that one Muhammed Kiwanuka be made a party because he has been in possession since 1979.<br /> Mr. Sekandi the learned counsel who represented the plaintiff Submitted that the application was grossly misconceived the proceedings before you were not under the Civil Procedure Rules. They were aware of an appeal against the order of the minister since that is an appeal there is no<em> </em>way another person not under the expropriated property Act<strong> </strong>1982 could be added as party. That he was only exercising his appellate Jurisdiction and what is before the court is the decision of the minister<strong> </strong>in as far as it affects the appellant. The Minister is being competently represented by the state attorney. Mr. Kiwanuka is not a minister. There was nothing common between Mr. Kiwanuka and the minister of finance. If he has any right he could follow it<strong> </strong>but certainly not in this application. The application is misconceived and however magnanimous it might be the proceedings<strong> </strong>are statutory. You can not exercise your discretion. He has not cited any case to join him in this statutory appeal. He prayed that the court disallows this application so that the learned counsel looks for other ways to guard his client’s interest. He wondered how a counsel who has not been on record just comes in Court and just prays that he be added on the record the learned counsel contended that the<strong> </strong>matter had been before this Court twice or thrice and the impression was that the Attorney General was taking steps to return the property to the owner. Subsequently to the last adjournment he went to the solicitor general where they said they were going to return the property. The best they could do was to wait for the proceedings to end and then they would follow either by taking proceedings against the Attorney General or the appellant but not to cause the impossible. He submitted that Mr. Serwanga had no locus standi. He should first apply as a party and then seek the adjournment. It would have been otherwise if the learned counsel had filed a suit.<br /> On the other hand Mr. Tusabe the learned state Attorney who appeared for the respondent/defendant the Attorney General submitted that Mohammed Kiwanuka was the registered proprietor of the property in issue and since the inception of the suit he had once gone to their chambers. He was wondering how after having been granted a certificate of repossession the government turns around to say that he was not the owner. He was surprised how the matter came to court and they advised the said Kiwanuka to contact the Minister of Finance and the Attorney General in respect of his ownership and the right of the widow Dehan. Since then<br /> they have been pursuing the matter but they have not received the feed back from the Minister of Finance. They have not got a copy of the certificate of purchase or any instructions as regards the contents in the plaint. He conceded to the Application for the adjournment.<br /> Mr. Sekandi in reply submitted that the application by the state Attorney for adjournment should not be entertained because the learned state Attorney had not been open. The matter has been before you, First was the Director of civil affairs. He applied for an adjournment so that the matter could be settled out of Court. He failed to do so. Then another state Attorney appeared and you granted him the adjournment. And on another occasion you granted an adjournment. And on a similar occasion Betty Musoke came and put on record the government policy and said she wanted to give the property back to the owner. The Application for adjournment was granted. On the adjournment she never came back. Later she surfaced. She was handed a letter by the agent of the Minister of Finance requesting for an adjournment so that the matter is finally settled. After the Adjournment they went to the solicitor general with one Ruth Namirembe. A letter was discovered and the recommendation was that the property be returned to the owner. The State Attorney showed him the letter that they were processing for the return of the properties to the owner but they were then changing the position. The state Attorney was not assisting the Court and so there were no sound reason for this application for adjournment. If he had not had instructions which took place on 2nd June if he had to go back a bit about what they had agreed, why he was not informed. It was not clear why he as seeking for an adjournment. He would have expected the state Attorney to assist the Court to state the law in which Mr. Serwanga would come in and join the proceedings when he was not a party. He reiterated his earlier prayer that the Court disallows the application and proceeds with the case.<br /> Mr. Tusabe in reply complained that it was unfair on the part of his learned friend to say that he was misleading the Court. The meeting they were talking about did take place. He submitted that the appellant claim was being processed and papers were duly discussed. They felt that they need further consultation with the custodian Board and the Minister of Finance in the light of the fact that the certificate of purchase could not be traced in the record. If the application was granted it could allow them to get a solution. He reiterated his earlier submission that he had no objection to the application by Mr. Serwanga to be joined as a party as an interested party in the suit and his application for adjournment.<br /> Well I have listened to the submission of the learned Counsels representing the parties in this application and at the same time heard the submission of Mr. Serwanga from Katende an Sempebwa &amp; Advocates. There appears to be two matters in this preliminary objection by Serwanga that he be allowed to be joined in the suit as<em> </em>counsel appearing for Kiwanuka and that the latter be joined as one of the parties and the other matter is the application for adjournment by the learned state Attorney.<br /> Before I proceed to consider the application briefly these were the facts behind this application the appellant/plaintiff is the widow and executrix of the will of the late Karam Chand who in 1972 before he left Uganda following Government policy on non citizen was the registered proprietor of property registered as <u>LRV </u><u>255</u><em><u> </u></em><u>folio plot 2 Impala </u>Avenue subsequent to the enactment of the expropriated property Act of 1982. She applied for repossession of the above property which had been expropriated under decree No 27/73 of the Assets of departed Asians Decree, Subsequently by the Expropriated Act 9 of 1982. She contacted the authorities and she got the reply to the effect that the property was not available for repossession as it had already been sold by the D.A.P.C Board and that compensation would be paid in accordance with government policy. She was aggrieved by the reply because she was interested in the property and not in money compensation and hence the suit against the Attorney General. .<br /> Now coming back to the application by Mr. Serwanga to be joined in the suit as a counsel for Kiwanuka an that Hannah Kiwanuka be joined as a party, I am of the view that this is the right moment to restate the law in connection with the matter before the Court Section 14(1) of Act 9 The expropriated properties Act 1982 states:—</div> <div><em>“</em><em>Any person who is </em><em>aggrieved</em><em> by any de</em><em>cision made by the Minister </em><em>under </em><em>this Act may within a period of thirty days from the dat</em><em>e</em><em> of the decision to such person appeal to the High</em><em> Court against such decision”.</em></div> <div>Where as under the same Act, Repossession and disposal Regulationsstatutory Instrument No.6 of the 1983, Section 15 provides:-</div> <div><em>“</em><em>The rule</em><em>s of Civil procedure governing the institution of a su</em><em>it in the High Court shall apply to appeals made under Section 14 of the Act.”</em></div> <div>In the instant case it could not be said that Hannah Kiwanuka whom Mr. Serwanga Craves to be joined as a part was an aggrieved party by the decision of the Minister of Finance when the latter rejected the application for repossession by the applicant. The appeal is against the Ministers decision and the parties as much, are the appellant and Ministers of finance represented by the Attorney General. The learned counsel did not cite any law in support of this assertion. In the premises Hannah Kiwanuka cannot be joined as a party to the instant appeal. Consequently the learned counsel had no the locus standi, His application for adjournment so that his client may be joined as a party to the appeal is dismissed with all the contempt it<strong> </strong>deserves.<br /> With regards to the application for adjournment by the learned state Attorney appearing for the Attorney General I need not to repeat that was submitted over this point by the learned counsel appearing for the appellant. The Attorney General was accommodated on a number of occasions with the application for adjournments. At one stage the State Attorney applied that they intended to settle the matter out of Court. And on another occasion the learned state Attorney informed the court that they were making arrangements to hand over the repossessed property to the appellant on the pretext that that was government policy. Sometimes adjournments were granted because of consultation by the learned state Attorney with what he called the higher authorities. It is my considered opinion that the respondent /defendant is not serious about the disposal of this appeal. An order to adjourn or not is an entirely discretionary power bestowed on this court. I would in the premises exercise this discretion by refusing further adjournment of this appeal. The application to adjournment of this appeal is rejected and the Appeal should be fixed for hearing, Costs for this application is provided for.<br /> &nbsp;</div> <p><strong>I. Mukanza<br /> Judge<br /> 15/9/93.</strong><br /> <!-- invalid font number 31506 --></p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-602ce1fcbf038ec9eff68fd8f0584a05"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/high-court/1993/10/high-court-1993-10.rtf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 13:54:11 +0000 Anonymous 16645 at https://old.ulii.org Transami (U) Ltd V Transocean (U) Ltd (Civil Suit No. 145 of 1987) ((U)) [1992] UGHC 1 (14 February 1992); https://old.ulii.org/ug/judgment/high-court/1992/1 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/civil-procedure" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Civil Procedure</a></li><li class="field-item odd"><a href="/tags/conduct-proceedings" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Conduct of proceedings</a></li><li class="field-item even"><a href="/tags/preliminary-objections" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Preliminary Objections</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p>&nbsp;</p> <p><u>THE REPUBLIC OF UGANDA<br /> IN THE HIGH COURT OF UGANDA AT KAMPALA<br /> CIVIL SUIT NO. 145 OF 1987</u><em><u>&nbsp;</u></em><br /> TRANSAMI (U) LTD::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF<br /> —versus—&nbsp;<br /> TRANSOCEAN (U) LTD:::::::::::::::::::::::::::::::::::::::::::::::::::::::::<em> </em>DEFENDANT</p> <p><u>BEFORE:-THE HON0URABLE MR. JUSTICE G.M. OKELLO</u></p> <div><u>RULING</u></div> <div>This ruling is in respect of a preliminary objection. At the commencement of the hearing of the application which was by Chamber Summons brought under 0,6 rr 18 and 30<em> </em>of the CPR whereby the Plaintiff/Applicant sought an order for leave to amend his plaint, Counsel, for the Defendant/Respondent took a preliminary objection to the application. He contended that the application for the proposed amendment was brought mala fide aimed at rendering the defendant’s pending Appeal useless. That there is<strong> </strong>a pending appeal between the same parties in the same heard suit on a point of law of limitation. He argued that the proposed amendment seeks to circumvent the statute of 1imitation and to thus render the defendant’s pending appeal useless. Counsel pointed out that in the original Plaint, the cause of action was stated to have occurred in 1974<em> </em>But that the proposed amendment, seeks to show that the cause of action occurred in 1986. Counsel submitted that this Court has always refused to allow amendment which renders the defendant’s defence of limitation useless. He relied on the case of <u>NZIRANE </u><u>.V. </u><u>MATIYA LUKWAGO</u><u> </u><u>(197l) HCB 75. </u> The learned Counsel further contended that the intended amendment also seeks to substitute a new case and to introduce a new cause of action. He finally prayed that the application should that be allowed to proceed.<br /> <br /> On his part Mr. Kazzora, counsel for the Plaintiff/ Applicant submitted that the preliminary objection was misconceived and that it should be overruled. He pointed out that this application for leave to amend is brought Under O.6 r. 18 of the CPR. That the guiding principles under this rule are (1) that the amendment is necessary for determining the real question in controversy between the parties. (2) That the proposed amendment is to enable justice to be done between the parties. He submitted that it is irrelevant how careless the original errors were and or how late the application for amendment is brought.</div> <div>Counsel denied however that there was any pending appeal between the parties as the Respondent did not comply with rule 76 of the Court of Appeal Rules 1972. That failure of the Respondent to serve Notice of the appeal if it was ever filed on the applicant vitiated the validity of the pendency of the Appeal. He further, denied that the proposed amendment seeks to substitute a new case because the prayers in the original plaint and in the proposed amendment are the same. That in both, documents the prayers seek orders for eviction, special damages, mesne profit, general damages, costs and interest on the decretal amount. The learned Counsel also denied that the proposed amendment seeks to introduce new cause of action because in both the original plaint and the proposed amendment the cause of action is wrongful occupation of the Plaintiff’s properties on the same plots.</div> <div><br /> As to the allegation that the proposed amendment would defeat the defendant’s existing defence of Limitation Act, Mr. Kazzora contended that the law allows that cause of amendment. He relied on Odgers pleadings 23rd Ed. at page 199.<em> </em>Counsel finally prayed that the preliminary objection be overruled.</div> <div>It must be pointed out from the outset that O.6 r.18 of the CPR gives this Court a wide discretion in allowing amendment to pleadings at any stage of proceedings. The guiding principles in the exercise of this discretion, was correctly pointed out by Mr. Kazzora. They are summarised thus: to determine the real questions in .controversy between the parties without causing injustice to the other party.<br /> In the instant preliminary .objection, the crucial question in my considered view is<strong> </strong>whether the app1icant acted mala fide aimed at defeating the alleged pending appeal between the parties when he brought the application for<strong> </strong>leave to amend his plaint.<strong> </strong>The other issues like the proposed amendment seeking to defeat the defendant’s existing defence of limitation; that the proposed amendment seeks to introduce new case and cause of action are matter which go to the substance of he application. I shall not concern myse1f with them at this stage for fear to<strong> </strong>pre-empt my discussion of the application.<br /> There was dispute between the parties about the validity of the pendency of an appeal on account of noncompliance with rule 76 of Court of Appeal Rules 72. Counsel for the Applicant contends that he was not served with the Notice of the said Appeal as required by the above<strong> </strong>rule and that that failure vitiated the validity of the pendency of the appeal if it was ever filed. On his part counsel for the Respondent contends that the Notice of the appeal was duly served on the applicant. That even if it was not served, that failure would not vitiate the validity of the pendency of the Appeal.<br /> I need not go into a detailed discussion of this issue because it is not material to the determination of the issue at hand. It suffices for me to state that rule 76<br /> seems to me mandatory and failure to comply with it would be more than irregularity. The effect would be far reaching.<br /> On the question whether the applicant acted male fide aimed at rendering the alleged pending appeal useless when he, brought the application for leave to amend his plaint. I fully agree with counsel for the Respondent when he said that this court has always refused to give leave to amend where it is satisfied that a party seeking amendment was acting mala-fide. But whether or not a party is acting mala fide is a question of fact which can only be established by evidence.<br /> In the instant case, there is an affidavit dated, 6.12.91 sworn by Walter Hoe, the Resident General Manager of the Plaintiff/Applicant Company. The affidavit was filed in Court in support of the application for leave to amend the plaint. It shows the plaintiff’s claim of right over he properties; how the defendant first got into occupation of the properties and the defendant’s source of claim over the properties; when the Plaintiff first demanded the defendant to vacate the properties<em> </em>and the defendant’s refusal thus marking the cause of action.</div> <div>These facts were sworn to justify and support the application for the proposed Amendment. There is nothing from those facts which suggest mala fide action on the part of the applicant in bringing this app1ieaou There is no contrary evidence to support the defendant/ Respondent’s claim of objection. In the circumstances I am not satisfied that the applicant brought that app1ication mala fide. The objection is therefore overruled.</div> <div>G.M. OKELLO<br /> <u>J U D G</u><u> E</u></div> <div>14.2.92</div> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-24dc4b7309727b746523c5dc100fe883"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/high-court/1992/1/high-court-1992-1.rtf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 13:53:59 +0000 Anonymous 16626 at https://old.ulii.org Andereya Kwekubaho V Bahemuka (Civil Suit No.38 Of 1984) ((Civil Suit No.38 Of 1984)) [1991] UGHC 14 (11 December 1991); https://old.ulii.org/ug/judgment/high-court/1991/14 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/civil-procedure" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Civil Procedure</a></li><li class="field-item odd"><a href="/tags/conduct-proceedings" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Conduct of proceedings</a></li><li class="field-item even"><a href="/tags/preliminary-objections" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Preliminary Objections</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p>&nbsp;</p> <p><strong><u>THE REPUBLIC OF UGANDA<br /> IN THE HIGH COURT OF UGANDA HOLDEN AT FORT PORTAL<br /> CIVIL SUIT NO.DR.MFP </u></strong><strong><u>38</u></strong><strong><em><u>/</u></em></strong><strong><u>84</u></strong></p> <p><strong>ANDEREYA KWEKUBAHO:::::::::::::::::::::::::::::::</strong><strong>:::::::::::::::::::::::</strong><strong>::PLAINTIFF</strong></p> <p><strong>VERSUS</strong></p> <p><strong>BAHEMUKA::::::::::::::::::::::::::::::::::::::::::::::::::</strong><strong>:::::::::::::::::::::::::::</strong><strong>DEFENDANT<br /> BEFORE: </strong><strong><u>THE HONOURABLE MR. JUSTICE I. MUKANZA</u></strong></p> <p><strong><u>RULING</u></strong></p> <div>When this case was called for hearing the learned counsel representing the defendant raised a preliminary point of law. Mr. Mugamba submitted that the case was not properly before this court because it was not duly registered before this honourable court. A casual look at the record would show that the learned Chief Magistrate His Worship Mr. Kalanda as he then was purported to dismiss the issue<strong> </strong>of payment of court fees by casually stating that the fees had been<strong> </strong>paid at Rwebisengo. There is no evidence of such payment nor has there ever been a registrar of this court at Rwebisengo. He referred me to the case of <u>Babizalirwa Francis</u><u> </u><u>.</u><u>vs</u><u>. Buyanja Tweheyo Co. Ltd H.C.C.S No.10</u><u>88/88</u><u> </u><u>re</u><u>ported 198</u><u>9 KALR </u><u>P</u><em><u>.</u></em><u>153</u><em><u>. </u></em>Where it was herd that no document is properly filed until fees have been The learned judge there quoted with approval the decision in <u>A</u><u>uto Exports Ltd .V. Customs 1970 EA 648.</u> Mr. Mugamba contended that this Registrar’s acknowledgment that fees had been duly paid would offer license to this case to be heard. He submitted that the registrar has got no such latitude. The learned counsel referred me to yet another case. <u>Moro Okola </u><u>.</u><u>vs</u><u>. </u><u>John</u><u> </u><u>La</u><u>lo</u><u>bo</u><u> C.A No.21/1978</u><u> </u>reported HCB at. P. 54<em> </em>where it was held that where contents<strong> </strong>of letter had been treated as some memorandum of appeal by the<br /> Deputy Chief Registrar such treatment was wrong and the letter could not be treated as a memorandum of appeal.<br /> The learned counsel then complained about the behaviour of the Magistrate Grade I when he proceeded and made rulings in the High Court file. That was wrong considering that it was only the Chief Magistrate who is delegated powers by the High Court. He prayed that the case be struck out with costs.<br /> On the other hand Mr. Musana who appeared for the plaintiff submitted that from his perusal of the file it was clear that on 11<sup>th</sup> day of December 1984 the plaintiff in person<em> </em>filed the plaint and the necessary fees were paid at Rwebisengo. That minute was signed on the same day. The plaint was filed and bears stamp of the Chief Magistrate court and that the plaint itself said that the file was filed in the High Court of Uganda at Fort Portal as required under Order 44 Rule 1 of the Civil Procedure Rules. It was therefore not true that no fees were paid because the acknowledgment by the District Registrar showed<strong> </strong>that fees were paid. He contended however that<strong> </strong>if<strong> </strong>the<strong> </strong>court<strong> </strong>find<strong>s</strong><strong> </strong>that<strong> </strong>fees<strong> </strong>were<strong> </strong>not<strong> </strong>paid<strong> </strong>that was not a mistake on the part of his, client but for the Registrar and his client should not be condemned in costs for the mistake of the District Registrar. He prayed that the preliminary objection be overruled.<br /> I have perused the records of this case very carefully. The present suit was filed in the High Court of Uganda Fort portal pursuant to order 44 rules 1 and 2 of the Civil Procedure rules Cap 65. I reproduce the said rules here below:-<br /> Rule 1:- states that,</div> <div><em>“Every suit in the High Court may be </em><em>instituted </em><em>at the central offices situate in Kam</em><em>pala or in District Registry</em>.”</div> <div>Rule 2:- is to the effect that,</div> <div><em>“There shall be District Registries of the High Court at such places and for such areas </em><em>a</em><em>s the Chief Justice may from time </em><em>to time by statutory order appoint.”</em></div> <div>The powers of the Registrars are provided for under order 46<em> </em>of<strong> </strong>the CFR and under rule 3<em> </em>of the same order it is provided that all formal steps preliminary to the trial and all interlocutory application may be made and taken before the Registrar.<br /> From the provisions of the above law and applying the same to the instant case I have got no doubt in mind that the present case<strong> </strong>was filed in the court with the requisite jurisdiction. It is however contended by the counsel appearing for the defendant that the suit was not properly filed because no fees had ever been paid.<br /> As I stated earlier on that I took trouble to study the records. The first minute in the file states:-<br /> <em>“Plaintiff </em><em>in person files in plaint, neces</em><em>sary fees paid at Rwebisengo”</em></div> <div>It is true that the fees were not shown in the court file and it is also true that there is no registrar at Rwebisengo. I do however take judicial notes of the fact that there exists a grade II Magistrates courts at Rwebisengo and when the learned District Registrar remarked that fees were paid at Rwebisengo and unless there was evidence to the contrary I do not doubt the integrity of the learned District Registrar when he remarked that fees were paid at Rwebisengo. The contention by Mr. Mugamba that no tees were paid at Rwebisengo holds no water. Therefore the cases referred to me by the learned counsel appearing for defence are distinguishable from the instant case.<br /> As regarded his complainant that the Magistrate Grade I gravely erred in entertaining and disposing of certain applications on behalf of the Chief Magistrate/District Registrar, I think that was most unfortunate. I had the occasion to peruse the relevant applications. The learned Grade I Magistrate entertained an application and made an order that the defendant be committed to prison pending his appearance before the District Registrar to show cause why he should not furnish security for his own appearance. The learned Grade I Magistrate also proceeded with the application to review his order. The learned Grade I Magistrate did not have the jurisdiction to act as he did because under order 44 rule 6 all such preliminary steps should have been handled by the District Registrar.<br /> From what has transpired above the preliminary point of law that the case was not properly registered before the court because no fees had been paid and that the same be dismissed is overruled with costs to the Plaintiff.</div> <p>I. MUKANZA<br /> <u>JUDGE </u><br /> <u>11/12/91</u><br /> <!-- invalid font number 31506 --></p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-d587985a60a0d6f982afcd4bd24ac770"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/high-court/1991/14/high-court-1991-14.rtf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 13:53:59 +0000 Anonymous 16614 at https://old.ulii.org Sylevaster Tibigyayo v Margret Kahinju & Anor (Civil Suit No. DR. MFP 12/88) ((Civil Suit No. DR. MFP 12/88)) [1991] UGHC 19 (22 May 1991); https://old.ulii.org/ug/judgment/high-court/1991/19 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/civil-procedure" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Civil Procedure</a></li><li class="field-item odd"><a href="/tags/conduct-proceedings" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Conduct of proceedings</a></li><li class="field-item even"><a href="/tags/preliminary-objections" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Preliminary Objections</a></li><li class="field-item odd"><a href="/tags/institution-proceedings" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Institution of proceedings</a></li><li class="field-item even"><a href="/tags/cause-action-0" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Cause of action</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p>&nbsp;</p> <p><strong>TH</strong><strong>E REPUBLIC OF UGANDA</strong><br /> <strong>IN </strong><strong>THE HIGH COURT OF UGANDA</strong><strong> AT </strong><strong>FORT PORTAL<br /> CIVIL SUIT NO. DR. MFP</strong><strong> 12/88</strong></p> <p><strong>SYLEVASTER TIBIGYAYO::::::::::::::::::::::::::::::::::::::::::::::::::PLAINTI</strong><strong>FF </strong></p> <p><!-- Drawn Shape (ignored--not implemented yet) --><strong>VERSUS</strong></p> <p><strong>1</strong><strong>. </strong><strong>M</strong><strong>ARGRET</strong><strong> KAHINJU&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; ::::::::::::::::::::::::::::::::::::DEFENDANTS<br /> 2. CHRISTOPHER BASAIJA</strong><strong>&nbsp;</strong><br /> <strong>BEFORE</strong><strong>:</strong><strong> </strong><strong><u>THE HONOURABLE MR. JUSTICE I. </u></strong><strong><u>M</u></strong><strong><u>UK</u></strong><strong><u>A</u></strong><strong><u>NZA</u></strong><strong><u> </u></strong></p> <p><strong><u>RULING</u></strong></p> <div>When this case was called for hearing the learned counsel appearing for the defendant<em> </em>raised a preliminary objection to the plaint in that the plaint did not disclose a cause of action and that the same be rejected pursuant to order 7 rule 11 of the Civil procedure rules. He submitted that all that the plaint averred was that the plaintiff had been on the land for sometime. He tried to get a land title but before he got one the defendants got one and thus blocking the plaintiff’s chances of having the land surveyed and registered in his names hence the institution of the instant case. He contended there was no cause of action. If the learned counsel for the plaintiff had alleged the defendants got the titles fraudulently and had pleaded fraud the plaint should have disclosed a cause of action. I was referred to the case of <strong><u>Auto Garage vs M</u></strong><strong><u>otokov (No.3) 1971 EA. P</u></strong><strong><u>. 51 </u></strong>where it was held that plaint disclosed no cause of action and as such it was incurable by amendment. He continued the failure by the plaintiff to plead fraud went to the heart of the whole action and referred me to another case of <strong><u>James Birikwate vs Kilembe Nines Ltd 1976 </u></strong><strong><u>(HCB)</u></strong><strong><u> 18</u></strong><u> </u>where it was held that where the cause of action is missing altogether in the plaint the defect cannot be cured by amendment and that under order 7 rule 11 of the Civil Procedure Rules it is mandatory upon the court to reject a plaint which does not disclose a cause of action. He prayed that the plaint be rejected with costs under order <em>7 </em>rule 11 of the Civil Procedure rules.<br /> On the other hand the learned counsel appearing for<strong><em> </em></strong>the plaintiff submitted that the objection should be overruled because the cause of action is shown in the plaint and would be expanded upon the evidence in the course or the proceedings and would further be argued upon when this court receives the annextures which are attached to the plaint. On the face of it the plaintiff enjoyed the right in that he has been in the occupation of the suit pieces of land. He had an offer of that piece of land and instructions to survey had been given to him. He had had the piece of land surveyed and then out of the blue the defendants had that piece of land surveyed into their names and had the certificate of title granted to them. The case for the plaintiff is that his right had been violated. The land having been offered to him earlier and having had it surveyed earlier he was seeking relief from this court to vindicate and declare that the latter claim of offer of survey and ultimately the issue of titles subordinated upon his earlier right. That constituted a cause of action in this matter. The cases quoted by his learned brother are distinguishable from the present case because in the instant case there was a case of action whereas in the others no cause of action existed. He prayed that the objections be rejected with costs.<br /> In reply Mr. Musana submitted that the court must look at the plaint and nothing else. It is not enough just to allege by the plaintiff that he tried to get title of the land earlier and the defendant got title before him. The title is conclusive evidence of ownership under section 56<em> </em>of the registration of Titles Act and could only be impeached for fraud but unfortunately fraud has not been pleaded in this case.<br /> He renewed his earlier prayer that the plaint was bad in law and should be rejected.<br /> The provision of order 7 rule 11 (a) is that the plaint shall rejected where it does not disclose a cause of Action.<strong> </strong>There area health of authorities where a plaint could be rejected under Order 7 Rule 11 of the CPR. <u>In </u><strong><u>Cottar v Attorney </u></strong><strong><u>General for Kenya</u></strong><strong><u> 193 AC </u></strong><strong>P. </strong><strong>18</strong><strong><em> </em></strong>it was said by<strong> Sir </strong><strong>Joseph</strong><strong> </strong><strong><u>Sheridan CJ </u></strong><u>as he then w</u><u>as </u><br /> <em>“What</em><em> is important in considering whether the cause of action is revealed is by the </em><em>pleadings</em><em> is </em><em>the question to what right has be</em><em>en violated. In addition </em><em>of course the plaintiff must ap</em><em>pear as a person aggrieved by </em><em>the</em><em> </em><em>violation</em><em> of his right</em><em> and the defendant as a person who</em><em> is liable, then in my opinion a </em><em>cause of ac</em><em>tio</em><em>n has been disclosed and any omission</em><em> o</em><em>r defect may be put right by amendmen</em><em>t. If on the other hand any of those essentials is missing no cause of </em><em>action has been shown and no ame</em><em>ndment is </em><em>permissible.”</em><em> </em><br /> <u>And </u><strong><u>S</u></strong><strong><u>pry v P in Auto Garage vs Motokov</u></strong><strong><u> v (Supra) </u></strong><strong><u>quoting</u></strong><strong><u> </u></strong><strong>with approval the decision in </strong><strong><u>Hass</u></strong><strong><u>man </u></strong><strong><u>vs.</u></strong><strong><u> National Bank of India </u></strong>stated;<br /> “The provision that a plaint shall be rejected appears to be mandatory.”<br /> The decision was expressly upheld in <strong>P</strong><strong><u>rince v Kelsall [1957] E</u></strong><strong><u>A 757 </u></strong><strong><u>and Sullivan v Ali M</u></strong><strong><u>ohammed</u></strong><strong><u> 0sman [1959] EA 239. And in Am</u></strong><strong><u>in Electrical Service </u></strong><strong><u>v_Ashok ltd Civil Case No. 118 of 1959 M</u></strong><strong><u>B No. </u></strong><strong><u>18/61</u></strong><strong><u>.</u></strong><u> </u>Reported Digest of Uganda High Court Cases on Civil Procedure and Evidence P.39<em> </em>It was held that to enable a court to reject a plaint on the ground that it discloses no cause of action it should look at the plaint and nothing else<strong> </strong><strong><u>Chitley 6th </u></strong><strong>Edition </strong><strong><u>vol.</u></strong><strong><u> 2 P.</u></strong><strong><u>2354.</u></strong><u> </u><br /> A careful study and scrutiny of the plaint reveals that the plaintiff had for many years kept his cattle and cultivated the land at Kiseruka the subject of the present case. He applied for lease for a term of 19 years there being no dispute. He went ahead and paid all the money he was required to pay under the lease offer. Later on, on 20th September 1983 instructions to survey the land was granted Senior staff Surveyor hut on 20th November a surveyor at kyenjojo Survey Camp wrote to the Senior staff Surveyor stating that the land had already been surveyed and the plaintiff learnt later that the defendant had managed to have the surveyed in their names thus blocking his chances of having the land surveyed and hence the institution of this case.<br /> In one of the prayers the plaintiff sought for a declaration that the purported lease offer to the defendants and the subsequent survey of land earlier granted to the defendant were obtained by fraud and therefore null and void.</div> <div>Applying the principles enunciated above to the instant case. The plaintiff appears as a person aggrieved by the violation of his right and the defendant as persons liable. The plaint showed that the plaintiff had for many years kept his cattle and cultivated the land in dispute and had taken steps to see to it that he obtained title of the same by applying for lease but the defendant without knowledge of the plaintiff subsequently went ahead and had the land surveyed in his names before of course the plaintiff had done so. This was a naked violation of the plaintiff’s right and it is the considered opinion of this court that the defendant was liable and in this way the plaint discloses a cause of action. The learned counsel appearing for the defendant submitted that the plaintiff did not allege fraud that the defendant got title fraudulently. I do not agree with the learned counsel appearing for the plaintiff over this matter. In the first place the plaint did allege that the<strong> </strong>defendant obtained the title of the disputed land fraudulently. He was seeking for a declaration from this court that the purported lease<strong> </strong>offer granted to the defendant was obtained by him fraudulently. It would appear that the learned counsel was referring to his written statement of defence when he submitted that possession of title was conclusive evidence of ownership under <strong>section</strong><strong> </strong><strong>56</strong><strong><em> </em></strong><strong>of the RTA (Registration of titles Act)</strong> and could only be impeached by fraud but It was held in <strong>Amin Electrical ser</strong><strong>vices </strong><strong>vs. A</strong><strong>shok The</strong><strong>atr</strong><strong>e</strong><strong>s Ltd Supra</strong> that to enable a court to reject a plaint on the ground that it disclosed no cause of action it should look at the plaint and nothing else. Therefore the fact that the defendant had had the land in dispute registered in his names as per his written statement of defence cannot be considered when dealing with the question as to whether the plaint discloses a cause of action or not. The courts look at nothing but the plaint alone.<br /> From that observation it is the considered opinion of this court that the preliminary objection that the plaint in the instant case that is the plaint discloses no cause of action is overruled with costs to the plaintiff.</div> <p>&nbsp;</p> <p><strong>I. MUKANZA<br /> JUDGE</strong><br /> <strong>22/5/9</strong><strong>1 </strong><br /> &nbsp;</p> <p>&nbsp;</p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-569d7496e51c90a72d258e3688f99211"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/high-court/1991/19/high-court-1991-19.rtf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 13:53:59 +0000 Anonymous 16616 at https://old.ulii.org Mrs. Tereza Beatrice Nalumaga Nyaika V Prince Patrick Olimi Kaboyo (Civil Suit No. DR. MFP 12/90) ((Civil Suit No. DR. MFP 12/90)) [1991] UGHC 8 (17 May 1991); https://old.ulii.org/ug/judgment/high-court/1991/8 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/civil-procedure" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Civil Procedure</a></li><li class="field-item odd"><a href="/tags/conduct-proceedings" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Conduct of proceedings</a></li><li class="field-item even"><a href="/tags/preliminary-objections" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Preliminary Objections</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p>&nbsp;</p> <p><strong><u>THE REPUBLIC OF UGANDA</u></strong><br /> <strong>IN THE HIGH COURT OF UGANDA AT FORT PORTAL<br /> CIVIL SUIT NO. DR. MFP 12/90</strong></p> <p><strong>MRS. TEREZA BEATRICE NALUMAGA NYAIKA::::::::::::PLAINTIFF</strong></p> <p><strong>VERSUS</strong></p> <p><strong>PRINCE PATRICK OLIMI KABOYO:::::::::::::::::::::::::DEFENDANT<br /> BEFORE: </strong><strong><u>THE HONOURABLE MR JUSTICE I. MUKANZA&nbsp;</u></strong></p> <p><strong>RULING</strong></p> <div>When this case was called for hearing the learned counsel representing the plaintiff raised two preliminary points. He submitted that under Order 1 rule 8 of the Civil Procedure rules Mr. Mugenyi who was possessed of powers<em> </em>of Attorney to represent the defendant did not qualify to do so because he had no common interest with the plaintiff as far as the subject matter was concerned. Secondly under order 3 of the Civil Procedure rules there was subrule 2 where parties are granted powers of Attorney to represent such parties. He submitted that the person appearing before court was not an advocate and secondly the powers of Attorney Mr. Mugenyi had presented were defective. That powers of Attorney are governed by special law and they have got to be registered by the registrar of business and documents on the third floor of Parliamentary building. They must not only be registered by the registrar of business but must also be sealed. The document Mr. Mugenyi had presented does not conform with the legal requirement.<br /> In addition he submitted that the whole purpose of person appearing under the powers of Attorney is to enable a transaction to take place where the person giving the powers of Attorney is for good reason is unable to appear in person physically to transact the business himself.<br /> In the present case Mr. Mugenyi has never applied to this court to justify why he should appear as representative of Prince Kaboyo who lives and then lived in. his house at Government Plot in Fort Portal. He therefore prayed that the power the document purportedly lodged in court by Mr. Mugenyi be refused on the grounds that:-</div> <div>It did not conform with the legal requirements under which powers of Attorney are drawn and presented.<br /> The person presenting them has not made a formal application to the court to show why he should appear on behalf of the defendant and what interest he has in the subject matter which is before the court for determination.<br /> Prince Kaboyo is physically present and alive and his home is on Government Road in Fort Portal.<br /> If he was not able to come for some justification he should still have made an application. The court could not allow such conduct for a litigant who is around and does not want to come to court. That was very contemptuous of the court.</div> <div>The learned counsel finally submitted that the document presented to court as powers of Attorney be rejected and Mr. Mugenyi be dismissed and the documents be done away with so that prince Kaboyo appear in person.<br /> Mr. Mugenyi -Under the Civil Procedure rules a person may appear by himself or by his advocate or any other person authorised by law on his behalf. In this particular case a formal application was made to the District Registrar by the Defendant Prince Kaboyo which was accepted by the District Registrar and signed in his presence and which he also counter signed thereby authorising him Francis Mugenyi to appear on behalf of the defendant as a true and lawful Attorney of Prince Kaboyo.<br /> Secondly Prince Kaboyo swore an affidavit and thereby authorising him to act and execute on his behalf all matters relating to the Civil Suit.<br /> Another <em>reason </em>was that at that time when he was granted powers of Attorney Prince Patrick Kaboyo was suffering from goat arthritis. He could not stand and could produce documents to prove his assertions. He prayed the court that he be accepted as a true Attorney of Prince Patrick Kaboyo having been allowed by the District Registrar.<br /> In reply Mr. Kagaba submitted that even the application to introduce Mr. Mugenyi was irregular under order rule 8 of the CPR in order for the latter to appear there must be a formal application which is heard in chambers by chamber summons. In this case the procedure was never followed. Also under order 48 rule 2 it is a requirement that all matters before court shall be served on the opposite party. In this case the request of making the application was never followed and that created another irregularity. If Mr. Mugenyi relies on order <strong><em>3 </em></strong>which deals with an agent representing a party but as I said earlier that had to be done by a formal application by the person delegating to another to appear on his behalf and had to show cause why he was delegating the powers and the same have to be examined by the court or if that was difficult the Attorney had to apply and justify his reason for appearing before the court. Under order 3 rule 1 of the CPR the court had the last word on the appearance of such matter. It could accept or reject the substituted party to the suit. He renewed his earlier prayer that the<strong> </strong>appearance of Mugenyi was wrong and that he be dismissed from the suit and the purported powers of Attorney granted to him be rejected.<br /> From what has transpired above the searching questions as deduced from both the addresses by the learned counsel representing the plaintiff and Mr<em>. </em>Mugenyi the man allegedly possessed with powers of Attorney are how and when are such powers of Attorney granted. Perhaps it is pertinent at this juncture to define the powers of Attorney. <strong><u>Osborne’s</u></strong><strong><u> Concise Law Dictionary</u></strong> defines Powers of Attorney as formal instrument by which one person empowers another to represent him or act in his stead for certain, purposes, usually in the form of a deed poll and attested to by two witnesses. The donor of the power is called the Principal or Constituent, the donor is called the Attorney. Osborne quotes an English Statute <u>P</u><u>o</u><u>wers of Attorney</u><u> Act 1971 as the authority for that. </u><br /> And the same Osborne defines an instrument as a formal legal document e.g. a deed of Conveyance, And a <u>deed poll </u>as meaning a deed which is polled or smooth i.e. <u>not indented </u>extra, here as Halsbury Laws of England fourth Edition (Lord Halsham of St. Marylebone <em>) </em>Para 730 Page 438 defines powers of Attorney as an instrument conferring authority by deed. The person conferring the authority is termed as the donor of the power and the recipient of the authority the donee. In the same paragraph it is stated that a power of Attorney is construed strictly by the courts according to well recognized rules (Bryant <u>Po</u><u>wis is and Byrant Ltd </u><u>.</u><u>vs</u><u>. Le Bangq</u><u>ue die Peuple </u><em><u>1893</u></em><u> AC at P. 177, Haward vs Bailee 1796 HCB L 618) </u>regard having had to any recitals which showing general object controlling the general terms in the operative part of the deed <u>Rooke vs Lord Kensington 1856 </u><u>2</u><u>11 &amp; 753 at P</u><em><u>. </u></em><u>769</u><u>.</u><br /> I have made some researches with regard to both the decisions of this court and the Supreme Court and its predecessors in connection with the matter before the court and I have not come across a relevant authority to the instant case. However under S. 154 of the Registration of Titles Act The proprietor of any land under the operation of the act or any lease or mortgage:<strong> </strong>may appoint any person to Act for him in transferring the same or otherwise dealing there with by signing power of Attorney in the form in the sixteen schedule to the Act but every such power shall be registered in accordance with the provisions of the Registration of document Act and if so registered within four months shall be presumed to be in force at the time of the registration thereof unless a revocation thereof has been previously registered under the said act. I am of the view this section is relevant to the instant case in as much as he registration powers of Attorney is concerned. And the authority and English Act referred to above are in my opinion also relevant.<br /> It is however important to note that before I proceed to apply the above principles to the instant to reproduce the document the powers of Attorney as granted by the Chief Magistrate/District Delegate.</div> <p><u>Republic of Uganda</u></p> <div>Mrs. Betty Nyaika::::::::::::::::::::::::::::::::::::::::::::::::Plaintiff</div> <div>—versus—</div> <div>Prince Patrick Kaboyo::::::::::::::::::::::::::::::::::::::::::Defendant</div> <div><u>Powers of Attorney </u></div> <div><em>A </em>power of Attorney give on the 23<sup>rd</sup> day of October 1990 by me Prince Patrick Kaboyo.<br /> Appointee - Francis Mugenyi P.O. BOX 13 Fort Portal.<br /> I Prince Patrick Kaboyo do hereby appoint nominate constitute Francis Mugenyi to be my true and lawful Attorney for me and in my names and for my use to perform the following acts that is to say:-</div> <div>(1) To attend to matters pertaining to and case No. DR. MFP 12/90 between me and Mrs. Betty Nyaika<strong> </strong>and any subsequent matters arising out of this case.<br /> (2)For the purpose of doing every other act or things by my Attorney deemed to be necessary or proper in relation to the said case.<br /> (3) And I hereby declare that all the acts matters and things which shall by it my Attorney given executed made or done for the purpose of the aforesaid shall be as good valid and effectual to all and purposes as if the same had been given made or done by me in my own proper names.</div> <div>And I hereby undertake at all times to rectify whatsoever by virtue of this power of Attorney.<br /> In witness where of the said prince Patrick Kaboyo has hereinto set this hand the day and year first above written.<br /> Signed and delivered by the said Prince Patrick Kaboyo in the presence of the Chief Magistrate.”<br /> To begin with it cannot be said that that document referred to above was a formal instrument. It was not in the form of deed poll and was never attested to by two witnesses as required by law no was it sealed and registered with the Registrar of Documents under the Registration of Documents Act Cap 80. Mr. Mugenyi therefore was not a recognised agent holding powers of Attorney authorising him to make such appearances and ap1ications on behalf of Prince Pratrick Kaboyo. <u>See order </u><em><u>3 </u></em><u>rule </u><strong><u>2 </u></strong>of the Civil Procedure.<br /> When addressing m<strong>e </strong>Mr. Mugenyi submitted that Prince Kaboyo swore an affidavit authorising him to appear on his behalf. With due respect I have gone through the records of this court but I have not come across such an affidavit. The only document in the file is the document headed Powers of Attorney and that was all.<br /> Mr. Mugenyi further submitted that under the civil procedure rules a person may appear himself or by his advocate or by any other person authorised by law on his behalf. I think Mr. Mugenyi had in mind the provisions of order I rule 8 of the Civil Procedure rules which states:</div> <div><em>“W</em><em>here there</em><em> a</em><em>re nu</em><em>merous persons having the same </em><em>interested</em><em> one suit one or more of such persons may with the permission of the court sue or be sued </em><em>o</em><em>r may defend in such suit on behalf of or for the benefit of all persons so interested. But the court shall </em><strong><em>in </em></strong><em>such case give notice of the institution of the suit to all such persons either by personal service or where from the number of persons or any other cause such service is not r</em><em>easonably practicable by public</em><em> advertisement as the</em><em> court in each case may direct.”</em></div> <div>The provision of order I rule 8 of the Civil procedure is not available to Mr. Mugenyi because it is not shown in the plaint that he shares the same interest with the defendant in this case and even if I were mistaken here Mr. Mugenyi had never applied and been granted permission to appear and defend the suit on behalf of the defendant. He should have made an application under order 48 rule 1 &amp; 2 and the notice of motion would be served on the apposite party unless the court permitted the application to proceed exparte. That unfortunately was never done.<em> </em>Mr. Mugenyi has definitely no locus standi in this matter. The document signed by Prince Kaboyo was not powers of Attorney conferring on Mugenyi authority to conduct this case on his behalf. The said document is therefore rejected and Mr. Mugenyi is dismissed from the suit and is barred from conducting this case on behalf of the defendant.</div> <p>&nbsp;</p> <p><strong>I. MUKANZA</strong><br /> <strong><u>JUDGE </u></strong><br /> <strong>17/5/91.</strong><br /> &nbsp;</p> <p>&nbsp;</p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-77afa76b5f00ef90bbb6f130575d0e01"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/high-court/1991/8/high-court-1991-8.rtf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 13:53:59 +0000 Anonymous 16603 at https://old.ulii.org Tororo Cement Co. Ltd Vs Frokina International Ltd ((Civil Appeal No. 2 of 2001)) [2002] UGSC 24 (24 April 2002); https://old.ulii.org/ug/judgment/supreme-court/2002/24 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/civil-procedure" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Civil Procedure</a></li><li class="field-item odd"><a href="/tags/conduct-proceedings" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Conduct of proceedings</a></li><li class="field-item even"><a href="/tags/preliminary-objections" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Preliminary Objections</a></li><li class="field-item odd"><a href="/tags/institution-proceedings" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Institution of proceedings</a></li><li class="field-item even"><a href="/tags/cause-action-0" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Cause of action</a></li><li class="field-item odd"><a href="/tags/delict-and-tort-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Delict and Tort Law</a></li><li class="field-item even"><a href="/tags/motor-vehicle-accident" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Motor Vehicle Accident</a></li><li class="field-item odd"><a href="/tags/negligence" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Negligence</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p><strong>REPUBLIC OF UGANDA </strong><br /> <strong>IN THE SUPREME COURT OF UGANDA </strong><br /> <strong>AT MENGO</strong></p> <p>&nbsp;</p> <p>&nbsp;</p> <p><strong><em>(CORAM: ODER, TSEKOOKO, KAROKORA, MULENGA AND KANYEIHAMBA, JJSC.)</em></strong><br /> &nbsp;</p> <p><strong>CIVIL APPEAL NO. 2 OF 2001</strong></p> <p><strong>BETWEEN</strong><br /> <strong>TORORO CEMENT CO. LTD --------------------------------------- APPELLANT</strong><br /> <br /> <strong>AND</strong><br /> <br /> <strong>FROKINA INTERNATIONAL LTD. -------------------------- RESPONDENT</strong></p> <p><br /> (Appeal from the decision of the Court of Appeal at Kampala (Kato, Mpagi-Bahigeine and Kitumba, JJ.A) dated 12th January 2001, in Civil Appeal No. 21 of 2000]</p> <p><br /> <strong><u>JUDGMENT OF TSEKOOKO, JSC:</u></strong></p> <p><br /> This is a second appeal. It is from the decision of the Court of Appeal confirming the ruling by the High Court, on an interlocutory point of objection, (Mugamba, J) that the plaint disclosed a cause of action.<br /> <br /> <br /> The appellant and the respondent were, respectively defendant and plaintiff, in the High Court in a suit from which these proceedings arise. In paragraphs 4 and 5 of the plaint in that suit, the plaintiff averred as follows:</p> <blockquote>"4 On 18/8/99 the defendant's truck and its trailer rammed into the plaintiffs premises on plot M587 Nakivubo View and extensively destroyed its doors and walls".<br /> <br /> <br /> 5. The accident was caused by negligence of the defendant's driver for which the defendant is vicariously liable"</blockquote> <p>&nbsp;</p> <p>In its written statement of defence, the defendant responded in paragraph three that the contents of paragraphs 3, 4 and 5 of the plaint are denied in total and the plaintiff shall be put to strict proof thereof.<br /> <br /> <br /> When the suit came up for hearing before Mugamba, Ag. J., Mr. Lumweno, counsel for the defendant, raised a preliminary point of objection to the plaint, contending that the plaint was defective and offended Rule 11(a) of Order 7 of the CP. Rules because it did not disclose a cause of action. Mr. Zeija, for the plaintiff, resisted the objection because, firstly the written statement of defence had not suggested, nor did the list of authorities indicate, that a preliminary point of objection would be raised. Secondly, learned counsel contended that the averments in paragraph 4 of the plaint sufficiently disclosed a cause of action.</p> <p>In his ruling, the learned trial judge rejected the objection and he was upheld by the Court of Appeal where the defendant had appealed. The defendant has now appealed to this court against the decision of the Court of Appeal.<br /> <br /> The memorandum of appeal contains two grounds which are formulated in this way: -</p> <blockquote> <table> <tbody> <tr> <td>1.</td> <td>The learned Justices erred in law by holding that the plaint disclosed a cause of action.</td> </tr> </tbody> </table> </blockquote> <blockquote>2. The learned Justices erred in law by failing to appreciate that once negligence was pleaded then the particulars of the alleged negligence had to be set out in the pleadings.</blockquote> <p>&nbsp;</p> <p>Counsel for both parties filed written submissions in this Court as they had done in the court below. I now proceed to consider those submissions.</p> <p>The contentions of Messrs Lumweno &amp; Co. Advocates, for the defendant are that the plaint is defective because it does not disclose a cause of action and so it should have been, and it should now be, rejected under Order 7 Rule 11(a) of the Civil Procedure Rules. Counsel referred particularly to paragraphs 4 and 5 of the plaint. Counsel cited a number of authorities in support of his arguments. These authorities include H. Katarahwire Vs. P. Lwanga (1988-1990) HCB 86; Mukasa Vs. Singh &amp; others (1969) EA. 442, Bullens and Leakes and Jacob's Precedents of Pleadings, 12<sup>th</sup>, Ed, page 685; J. L. Okello Vs. Uganda National Examinations Council -Supreme Court Civil Appeal No. 12 of 1987 (unreported).</p> <p><br /> These authorities illustrate the point that it is not enough for a plaintiff in his statement of claim to allege merely that the defendant acted negligently and thereby caused him damage. Particulars must be given in the plaint showing precisely in what respect the defendant was negligent. Counsel criticised the Court of Appeal for holding that paragraphs 4, 5 and 7 of the plaint gave sufficient particulars of negligence and the damage suffered by the plaintiff. Counsel also expressed concern that although he provided the Court of Appeal with numerous relevant authorities for consideration by that Court, the authorities were not considered. On this last point I will straight away say that learned counsel did not demonstrate how sure he is that the Court of Appeal did not consider the authorities he cited.<br /> <br /> <br /> Messrs Kwesigabo, Bamwine and Walubiri, Advocates, counsel for the plaintiff, supported the decisions of the Courts below that the plaint disclosed a cause of action and that it complied with the requirements of<strong> </strong>0.7 Rule 11(a). Counsel relied on some authorities cited by the appellant's counsel in addition to the following: <strong>Auto Garage &amp; others Vs. Motokov (No 3) (1971) EA. 514; Carter Vs. Attorney-General (1936) 5 EACA, 18; W. Kigundu Vs. Attorney General, Sup. Court Civil Appeal 27 of 1993 </strong>(unreported).</p> <p>I start with the contention by the plaintiff that because the written statement of defence did not indicate that the defence would raise a preliminary point of objection, it was therefore not proper for the objection to be raised as a preliminary point.</p> <p>Whether a plaint does or does not disclose a cause of action is a matter of law which can be raised by the defendant as a preliminary point at the commencement of the hearing of the action even if the point had not been pleaded in the written statement of defence. Obviously it is proper and good practice to aver in the opposite party's pleadings that the pleadings by the other side are defective and that at the trial a preliminary point of objection would be raised. But failure to so plead does not in my opinion bar a party from raising the point. There is, of course, advantage in raising a likely preliminary point in the pleadings. This puts the opposite party on notice so that that party in minded to put its pleadings in order before court hearing. In that way Court's time may be saved if parties can sort out preliminary matters in advance.</p> <p>I ought at this stage to note the apparent non-compliance with the provisions of Order XB of the Civil Procedure Rules. During the hearing of this appeal, we were informed from the bar by counsel, that prior to the hearing of the case, no scheduling conference took place in the High Court. Under the new Order XB of the CP Rules, the holding of a scheduling conference in civil cases is mandatory. See Rule 1(1) thereof. The principal objective of the scheduling conference is to enable court to assist parties to dispose of cases expeditiously by sorting out points of agreement and disagreement or assessing the possibility of mediation, arbitration and other forms of settling the suit. After a scheduling Conference, and where it is necessary, interlocutory applications can then be made and be disposed of before the suit is fixed for hearing. In that way the progress of the suit is managed systematically. In this case, it is my view that the point raised by the present proceedings should have been properly raised and dealt with during a scheduling conference or soon thereafter. One hopes that the holding of scheduling conference will be a regular feature in the trial of civil cases by all trial courts.</p> <p>Be that as it may, the trial judge discussed the question of</p> <p>disclosure of cause of action in these words: -</p> <p><em>"It was further averred by counsel for the defendant that the plaint should be rejected on the score that particulars of negligence were not given. With respect, that is a matter that should be visited on the occasion of hearing of evidence. In fact it was held, inter-alia, in Auto Garage that a plaint may disclose a cause of action without containing all the facts constituting a cause of action provided that the violation by the defendant of a right of the plaintiff is shown".</em><br /> <br /> <br /> I do not with respect quite appreciate what the learned judge meant by the words:</p> <p>"that is a matter that should be visited on the occasion of hearing of evidence".</p> <p>In the context quoted above I understand the learned judge to suggest that particulars of negligence would be given at the time of giving evidence. If I understand him correctly, then with respect, I cannot agree. Particulars of negligence are an important aspect of any party's case, and therefore, it is important that particulars of negligence should be pleaded early so as to assist in framing issues as well as in avoiding surprises which are bound to happen if particulars of negligence are merely<strong> </strong>introduced as an intrusion during trial at the time evidence is adduced. A party must know the species of negligence which the opposite party seeks to rely on.</p> <p>The Court of Appeal supported the trial judge that within the three tests set out in the case of <strong><u>Auto Garage &amp; Another Vs. Motokov</u> (No.3) (1971) EA. 514, </strong>the plaint disclosed a cause of action. Mpagi-Bahigeine, JA; in her lead judgment first correctly stated that:</p> <p><em>"Particulars of negligence must therefore be given in pleading showing in what respects the defendant was negligent. The plaintiff ought to state facts upon which the supposed duty to plaintiff is founded, and whose breach the defendant </em>is <em>charged with. Then should follow an allegation of precise breach of that duty of which the plaintiff complains and lastly particulars of the damage sustained </em></p> <p>With great respect I think that it is not quite correct to say, as did the learned justice state later, that:<br /> <br /> <br /> <em>"It is not always necessary to tabulate them, (particulars of negligence) as suggested by Mr. Lumweno. This would be a mere matter of form not sufficient ground for rejection of a plaint".</em></p> <p>Whilst I agree that a plaint may disclose a cause of action without pleading all the facts which give rise to it, with respect, I do not agree that paragraphs 4, 5 and 7 in the present plaint give sufficient particulars of negligence. Nor do I share the view that it is not always necessary to tabulate particulars of negligence. The present plaint could be sufficient if the plaintiff only chose to rely on the doctrine of Res Ipsa Loquitor which may turn out to be risky.</p> <p>It is the common practice in cases of negligence for a party, or his advocate, who intends to rely on negligence to plead particulars of negligence either within a paragraph of the pleadings or in more than one paragraph. Reliance on the three tests in the <strong>Motokov case </strong>(supra) must be taken with care. That was not a case of negligence but a case of sale of goods. When at page 519, <strong>Spry, </strong>V.P, in his lead judgment concluded that:-</p> <blockquote><em>"I would summarise the position as I see it by saying that if a plaint shows that the plaintiff enjoyed a right, that the right has been violated and that the defendant is liable, then, in my opinion, a cause of action has been disclosed and any omission or defect may be put right by amendment",</em></blockquote> <p><br /> <br /> he clearly showed that where a plaint discloses a cause of action but is deficient in particulars, the plaint can be amended so as to include particulars, say of negligence.<br /> <br /> <br /> I agree with the Court of Appeal when it held that the alternative is for the appellant to ask for further and better particulars under <u>0.6 Rule 3</u>. Or indeed, the plaintiff could have sought leave to amend the plaint. This course would have avoided the necessity for these proceedings.</p> <p>As I said earlier, an interlocutory application should have been made during the scheduling conference or soon after the scheduling conference: In <strong>Mukasa Vs Singh and others (1969) EA. </strong>442 and in the High Court decision of <strong>H. Katarahwire Vs P. Lwanga </strong>(supra), the court explained the need for pleading particulars of negligence. In <strong>Mukasa's case, Sheridan, </strong>Ag. CJ, held that the plaintiff must plead particulars of negligence on which he relies, and which will be binding on him, before he can shift the onus of disproving negligence onto the defendant. He rejected the plaint with costs. In its offending para 4 of the plaint in that case, it was pleaded, in so far as relevant, that:-</p> <p>&nbsp;</p> <p><em>". The defendants'</em></p> <blockquote><em>servants and/or agents and defendant No.3 at about miles 7 Kampala/Bombo Road, drove their respective vehicles so negligently that they collided and as a result of the accident Mary Namakula died from injuries she sustained in the accident.</em><br /> <br /> <em><u>Particulars of Negligence </u>The weather was clear, the road was tarmac dam and straight, the road was dry and in good repair, and traffic was light, yet the vehicles collided. Under the circumstances, the plaintiff will rely on, the doctrine of res Ipso loquitur".</em></blockquote> <p>&nbsp;</p> <p>The drafting of the main body of the above quoted para 4 is not much different from the contents of pleadings in paragraphs 4 and 5 complained of in these proceedings.<br /> <br /> <br /> The plaintiff relies on Article 126 of the Constitution for the view that the plaint is not defective. I do not think that Article 126 of the Constitution was meant to encourage sloppy drafting of pleadings. Properly drafted pleadings define issues in contest. That is why we have rules. What can be argued legitimately is that because of that Article and by authority of decided cases, a plaint ought not to be rejected for failure to disclose a cause of action unless even when it is amended, within the limits of the law, a cause of action is not disclosed. But the party whose pleadings are objected to must be graceful enough to recognize the defect in its pleading and seek Court's leave, if it is possible, to rectify the relevant defect instead of being adamant as the plaintiff has been in these proceedings.<br /> &nbsp;</p> <p>The essence of pleadings is to enable parlies to define issues in dispute. In this case the issue in dispute is negligence. Issues on negligence can be defined by giving particulars of the alleged negligence.<br /> <br /> <br /> The decision of this Court in <strong>Okello Vs UNEB </strong>(supra) does not exempt parties from giving particulars of negligence. That case was concerned with form. But that decision quite clearly indicates that where pleadings contain irregularities or defects, those irregularities can be cured by amendment so that a case is decided on its merits. Similarly the cases of <strong>Bennet vs Chemical Construction Ltd </strong>(1971) 1 WLR 1751, <strong>Embu Road Services vs Riimi </strong>(1968) EA. 22 and <strong>Msuri Muhhiddin vs Nazzor Bin Seif </strong>(1960) EA. 202 which have been relied by my learned brothers do not affect the requirement that particulars of negligence should be alleged in the plaint where the claim is based on negligence. And with due respect I would point out that all the three cases went on appeal after full trial where the plaintiff had alleged negligence. So, in a sense, the three cases are distinguishable from the case before us.</p> <p>It is my opinion that whereas the plaint disclosed a cause of action, because of the alleged negligence, the defendant is entitled to know the particulars of negligence complained of in order to enable it to prepare its defence properly. In that regard ground one ought to fail but I would allow ground two in part.<br /> <br /> <br /> In the result I would allow the appeal in part. Unless the plaintiff wants to confine its case under the doctrine of res ipsa loquitur, the plaintiff, if it so wishes, should seek leave of the trial court to be allowed to amend the plaint so as to include particulars of the alleged negligence.<br /> <br /> <br /> I would award the appellant no<strong> </strong>costs of the appeal. I would award the respondent 1/2 of the costs here and in the Court of Appeal. I would make no order as to the preliminary objection in the High Court.</p> <p>I would also order that all relevant proceedings be sent to the High Court for the trial of the suit to proceed.</p> <p>&nbsp;</p> <p><strong><u>JUDGMENT OF ODER - JSC.</u></strong></p> <p>I have had the benefit of reading in draft the judgment of Tsekooko, JSC.</p> <p>The respondent sued the appellant at Kampala, in High Court Civil Suit No. 1215 of 2000. In paragraphs 4, 5 and 6 of its plaint, the respondent averred;</p> <p>&nbsp;</p> <p><em>"4. On 18-8-99 the defendant's truck and its trailer rammed into the plaintiff's premises on Plot M.587, Nakivubo </em>View <em>and extensively destroyed its doors and walls.</em></p> <blockquote><br /> <em>5. The accident was caused by negligence of the Defendant's driver for which the defendant is vicariously liable.</em></blockquote> <p><em>6. The plaintiff contacted Turn Key Constructors and Engineers to estimate the costs of repair of the damaged premises and the cost was estimated at Shs. 6,248,734=.</em></p> <p>In Paragraphs 3 and 4 of its written statement of defence, the appellant denied in total the respondent's averments in its plaint.</p> <p>At the trial of the suit the respondent's Counsel raised a preliminary objection under order 7, rule 11(a) of the Civil Procedure Rules. The learned trial judge overruled the objection. The respondent appealed to the Court of Appeal against the learned trial's decision, which dismissed the appeal.</p> <p>The appellant's memorandum of appeal to this court set out two grounds of appeal:</p> <blockquote> <table> <tbody> <tr> <td><em>1.</em></td> <td><em>The Justices erred in law by holding that the plaint disclosed a cause of action.</em></td> </tr> <tr> <td><em>2.</em></td> <td><em>The learned Justices erred in law by failing to appreciate that once negligence was pleaded then the particulars of the alleged negligence had to be set out in its pleadings.</em></td> </tr> </tbody> </table> </blockquote> <p>&nbsp;</p> <p>Order 7, rule 7(a) of the Civil Procedure Rules provides that the plaint shall be rejected -<br /> <br /> <br /> <em>"(a) where it does not disclose a cause of action."</em></p> <p>A cause of action means every fact which is material to be proved to enable the plaintiff to succeed or every fact which, if denied, the plaintiff must prove in order to obtain judgment. See - <em>Cooke -vs- Gull LR.8E.P. page 116 </em>and <em>Read -vs- Brown, 22 QBD p.31.</em></p> <p>It is now well established in our jurisdiction that a plaint has disclosed a cause of contain even though it omits some fact which the rules require it to contain and which must be pleaded before the plaintiff can succeed in the suit. What is important in considering whether a cause of action is revealed by the pleadings are the questions whether a right exists and whether it has been violated. <em>Cotter -vs- Attorney General (1938) 5 EACA 18. </em>The guide-lines were stated by the Court of Appeal for East Africa in Auto <em>Garage -vs- Motokov (No. 3) (1971) EA. 514. </em>There are:</p> <blockquote> <blockquote><br /> <br /> <em>(i) the plaint must show that the plaintiff enjoyed a right;</em></blockquote> </blockquote> <p>&nbsp;</p> <p><em>(ii) that right has been violated; and </em></p> <p>&nbsp;</p> <p><em>(iii) that the defendant is liable.</em></p> <p>If all three elements are present than a cause of action is disclosed and any defect or omission can be put right by amendment. The trial judge has discretion to allow such an amendment. Where no cause of action is disclosed no amendment can be allowed because the plaint is a nullity.</p> <p>In the instant case the respondent would have to prove that the damaged premises were its property and its right in that property has been violated; that it was the appellant's truck which rammed into a<em>nd </em>damaged it, as a result of which the respondent sustained financial loss, and further that there was no contributory negligence on its part. The three elements set out in <em>Motokov (No.3) </em>(supra), are present in the plaint in the instant case. It is clear, therefore, that the respondent's plaint discloses a cause of action on the basis of the brief pleading therein. The first ground of appeal should, therefore, fail.</p> <p>The action in this case is founded on negligence. Actionable negligence consists of a breach of duty of care and skill by the defendant towards a person to whom the defendant owes that duty; and the breach of duty has caused that other person, the plaintiff, without contributory negligence on his part, injury to his person or property. <em>Heaven -vs- Pender (1883) 11 QBD at 509. </em>Particulars of negligence must be given, showing in what respect the defendant was negligent. The plaint therefore ought to state<strong> </strong>facts upon which the alleged duty to the plaintiff is based, the alleged breach of which the defendant is alleged to have committed. This should be the particulars of the alleged negligence complained of by the plaintiff and the particulars of the damage sustained. <strong><em>Nurdin Ali Devji and Others -vs- Meghi Co. and Others (1953) EACA. 132.</em></strong></p> <p>In the instant case, the plaint alleges that the defendants truck rammed into the respondent's premises. This, allegedly, was the result of negligencee by the appellant's driver. Particulars of the alleged negligence were not stated in the plaint. In my view, such particulars should have been pleaded in order that the appellant was sufficiently informed of the case it had to meet. Particulars could also have been supplied by amendment of<br /> <strong>[.....]</strong></p> <p>&nbsp;</p> <p><strong><u>JUDGMENT OF KAROKORA, J.S.C</u></strong></p> <p>&nbsp;</p> <p>I have read in draft the judgment prepared by Tsekooko JSC, and have found that the facts of the appeal are very brief and are not in dispute. Paragraphs 4, 5 and 7 of the plaint spell them out as follows:-</p> <p>&nbsp;</p> <p><em>"4. On 18/8/99 the defendants truck and its trailer rammed into the plaintiffs premises on plot M587 Nakivubo view and extensively destroyed its door and walls,</em></p> <blockquote> <blockquote><em>5. The accident was caused by negligence of the defendant's drives' for which the defendant is vicariously liable."</em><br /> <br /> <br /> <em>7. As a result of the said accident the plaintiff has suffered general damages of which the Defendant is liable to wit: loss of rental income</em></blockquote> </blockquote> <p><br /> <br /> The defendant, in its written statement of defence denied in toto the contents of paragraphs 4, 5 and 7 of the plaint.<br /> <br /> However, at the trial before the High Court, the defendant raised a preliminary objection that the plaint was defective and offended Rule 11(a) of Order 7 as it never disclosed a cause of action. The objection was overruled by the trial Judge. The defendant appealed to the Court of Appeal on two grounds, namely,</p> <blockquote>1. That the learned judge erred in law by holding that the plaint disclosed a cause of action.<br /> 2. The learned judge erred in law by failing to appreciate that once negligence was pleaded then the particulars of the alleged negligence had to be set out in the pleadings</blockquote> <p>The Court of Appeal dismissed the appeal and hence this appeal which is premised on two grounds, namely that:</p> <blockquote>1. The learned justices erred in law by holding that the plaint disclosed a cause of action.<br /> 2. The learned justices erred in law by failing to appreciate that once negligence was pleaded then the particulars of the alleged negligence had to be set out in the pleadings.</blockquote> <p>&nbsp;</p> <p>These are the same grounds, which were raised before the Court of Appeal.<br /> <br /> <br /> It is important to note that after citing the cases of <em><u>Colter v Attorney-General for Kenya (1938) 5 EACA 18 and Auto Garage v Motokov - 1971 EA 514</u> </em>Mpagi-Bahigeine JA, who wrote the lead judgment of the court<strong> </strong>with which the other two (2) justices concurred, rightly stated in my view, that in order to prove that there was a cause of action it was necessary for the plaintiff to establish three essential elements, namely;</p> <blockquote>(a) That the plaint must show that the plaintiff enjoyed a right.</blockquote> <blockquote> <table> <tbody> <tr> <td>(b)</td> <td>That the right has been violate and</td> </tr> <tr> <td>(c)</td> <td>That the defendant is liable.</td> </tr> </tbody> </table> </blockquote> <p>The learned justice then went on to state that:</p> <p>&nbsp;</p> <p>&nbsp;</p> <p><em>'If all the three elements are present then a cause of action is disclosed and any defect or omission can be put right by amendment. The judge has a discretion to allow such amendment. However, if any element is missing then no cause of action is established and no amendment will be allowed, the under lying principle being that where a plaint is a nullity, no amendment can redeem it, whereas a mere defect or an irregularity may be curable by amendment where the ends of just so demand, where a cause of action is otherwise disclosed."</em><br /> <br /> <br /> After citing paragraphs 4, 5 and 7 of the plaint she continued and stated that:</p> <p>&nbsp;</p> <p>&nbsp;</p> <p><em>'With the above guidelines in mind, it is the respondent's right of property which was violated when the truck allegedly belonging to the appellants ran into them, extensively damaging its walls and doors and thereby causing financial loss to the respondent.</em></p> <p><em>It is important to note that a cause of action means every fact which is material to be proved to enable the plaintiff to succeed. The respondent will have to prove that the premises were his property and that it is the appellant's truck that rammed into it damaging it is a result of which he sustained financial loss and that further he was not in any way responsible for contributory negligence in this respect the three elements set out in <u>Motokov (No.3)</u> (supra) are present in the plaint, the subject of this appeal.</em></p> <p>&nbsp;</p> <p><em>There is therefore no doubt that a clear cause of action is disclosed by the plaintiff.</em><br /> <br /> <br /> I would in view of the above, not fault the Court of Appeal, when it concluded that there was a cause of action disclosed in the plaint. In the result, ground one must fail.<br /> <br /> <br /> Turning to ground two, which complained that once negligence was pleaded then the particulars of the negligence had to be set out in the pleadings,<br /> <br /> <br /> I think that although generally it is a rule of practice for a plaintiff to plead particulars of negligence, in the instant case the facts spelt our in paragraphs 4, 5 and 7 of the plaint show prima facie evidence of negligence. If the appellants' truck rammed into the respondents' premises, causing extensive damage to the walls and door, it would be imposing an uphill task to expect the owner of the premises to know the circumstances of how the truck rammed into its premises.<br /> <br /> <br /> In my view, since ordinarily vehicles are driven along the roads, paragraphs 4, 5 and 7 of the plaint would attract the doctrine of res ipsa Loquitor to be invoked. These paragraphs suggest that there is not any other explanation other than negligence of the appellant. The appellant could avoid liability by showing that there was no negligence on their part which contributed to the accident or that the accident was due to circumstances not within their control. I think that the case of <em><u>Bennet v Chemical Construction G.B (1971) 1WLR 1571</u> </em>is relevant where Davies LJ held inter alia</p> <p>&nbsp;</p> <p><em>" if the accident is proved to have happened in such a way that prima facie, it could not have happened without negligence on the part of the defendant then it is for defendant to explain and show how the accident would have happened without negligence of the defendant. I have stated in my opinion it is not necessary to plead res ipsa loquitur. If the facts pleaded show that the cause of the accident was apparently and on its face due to some negligence, that is sufficient."</em><br /> <br /> <br /> I think, the above view is reinforced by the dictum of Odoki, JSC, as he then was, in the case of <em><u>Okello v UNEB civil A</u>p<u>peal No. 12 of 1982</u> </em>(SC) unreported, while he was considering whether the plaint should be rejected on the ground that it did not state particulars of fraud. There, the learned justice stated that:</p> <p>&nbsp;</p> <p>&nbsp;</p> <p><em>"I agree it is a rule of practice to specify the particulars of fraud under definite heading entitled "particulars of fraud". But in my view that is only a requirement as to the form of pleadings whose departure from will not necessarily vitiate the pleadings. In this connection, I would agree with what Spry J said in <u>Castelino v Rodriqnes (1972) EA 223.</u> Of course rules are made to be observed, but irregularities of form may be ignored or cured by amendment where they have occasioned no prejudice. In these matters of form, courts are much less strict to day than formerly."</em><br /> <br /> <br /> Although in <em><u>Okello v UNEB</u> </em>(supra) the complaint concerned omission to plead particulars of fraud, I would apply the same principle in the instant case where the complaint concerned omission to plead the particulars of negligence.<br /> <br /> In my view, in the instant case if there were any defects or omission in the pleadings by respondent these could be cured by amendments at any stage during the proceeding of the case. Finally, since there is a cause of action, I would let the case proceed and be decided on merit.<br /> &nbsp;</p> <p>Therefore, in view of the above, ground two must fail.<br /> &nbsp;</p> <p>I would in the circumstances dismiss this appeal with 1/2 the costs to the respondent and in the CA.</p> <p>&nbsp;</p> <p>&nbsp;</p> <p><strong><u>JUDGMENT OF KANYEIHAMBA, J.S.C.</u></strong></p> <p>I had the benefit of reading in draft, the judgment of my brother, Tsekooko JSC. and in my view this appeal should fail.</p> <p>The facts of this case have been ably set out in the judgment of Tsekooko JSC. and I need not repeat the same here except in so far as they relate to this judgment. In the High Court, in a suit from which this appeal originates and in paragraphs 4 and 5 of the plaint, the respondent averred that on 18/8/99, the defendant's truck and its trailer rammed into the plaintiffs premises on plot M 587, Nakivubo View and extensively destroyed its doors and walls and that the accident was caused by the negligence of the defendant's driver for which the defendant is vicariously liable.</p> <p>At the hearing of the suit, counsel for the defendant raised a preliminary point of objection, contending that the plaint did not disclose<strong> </strong>a cause of action, was defective and offended against Rule 11 (a) of Order 7 of the Civil Procedure Rules. In his ruling, the learned trial judge over-ruled the objection and his ruling was upheld by the Court of Appeal, rightly so, in my opinion. In her lead judgment the learned Justice, Mpagi-Bahigeine, J.A. held that there was a cause of action disclosed with sufficient particulars of negligence.</p> <p>While, with respect I do not agree with the learned Justice of Appeal that the plaint disclosed sufficient particulars of negligence, in my opinion, the plaint as presently framed discloses a cause of action. In normal circumstances, vehicles are intended and ought to be driven on roads and streets and not into other people's buildings, property or houses beyond the boundaries of those roads or streets. Consequently, where such an event occurs and is pleaded in a plaint and supported by particulars it is not enough for the defendant to fold his or her hands and expect the plaintiff to prove the details of any negligence. It might have been at night when the plaintiff and any potential witness would have been asleep or unable to see what happened. Once a plaintiff shows that his or her legally protected rights have been violated in circumstances which are self-evident and it is the defendant or his agents who caused the violation, a cause of action arises.</p> <p>In <u>Embu Public Road Services Ltd v. Riimi,</u> (1968) E.A. <em>22, </em>the husband of the respondent was killed while travelling as a passenger in a bus which overturned after one of its main springs broke while it was travelling a long a straight stretch of road. The respondent relied on the doctrine of <em>re ipsa loquitur. </em>The evidence showed that it could have<br /> <br /> &nbsp;</p> <p>been possible for the driver to control the bus. The fact that he failed to do so was self-evident that he was either inattentive or negligent. The Court of appeal for East Africa confirming the judgment of the learned trial judge, held that,</p> <blockquote><em>"where the circumstances of the accident give rise to the inference of negligence, then the defendant in order to escape liability has to show' that or that the explanation for the accident was consistent only with the absence of negligence.'"</em></blockquote> <p>Similarly, in <em>Msuri Muhhiddin v. Nazzor Bin Seif El Kassaby and Another </em>(1960) EA. 201, it was held that the respondents in that case could only avoid liability by showing that there was no negligence on their part which contributed to the accident, or that there was a probable cause of the accident which did not connote negligence on their part or that the accident was due to circumstances not within their control. I agree with the learned Justices of the Court of Appeal that in this case there was a cause of action and it is open to the plaintiff to plead particulars of negligence or the doctrine of <em>res ipsa loquitur. </em>Therefore both grounds of appeal ought to fail.</p> <blockquote>In the result I would dismiss this appeal with costs.</blockquote> <p>&nbsp;</p> <p><strong><u>JUDGMENT OF MULENGA JSC</u></strong></p> <p>This is an interlocutor) appeal. It originates from a civil suit filed by the respondent in the High Court claiming compensation for loss incurred as a result of damage to its premises. It was alleged in the plaint that the appellant's truck and trailer had rammed into the premises and extensively destroyed doors and walls thereof, and that this was caused by the negligence of the appellant's driver for which the appellant was vicariously liable. In its defence the appellant simply denied the allegations. When the suit came up for hearin, however, the appellant took a preliminary point of law that the plaint should be rejected under 0.7 r.11(a) of the Civil Procedure Rules (CPR), contending that the plaint did not disclose a cause of action because no particulars of negligence were set out therein. That contention was overruled by the learned trial judge. On appeal the Court of Appeal upheld the trial court decision.</p> <p>&nbsp;</p> <p>In this second appeal, the appellant reiterates the same contention in the first ground of appeal. I would unhesitatingly hold that there is no merit in that ground. The cause of action was disclosed to be negligence. The facts constituting the cause of action, as required under 0.7 r.l(e) of the CPR are contained in the plaint. In a nutshell, they are that on 18.8.99 the respondent's premises were extensively destroyed when the appellant's truck and trailer rammed into them due to the negligence of the appellant's driver, for which negligence, the appellant is vicariously liable. Undoubtedly a better drawn plaint would have included more particulars. However, what was pleaded in the plaint discloses a cause of action in the tort of negligence. The first ground of appeal must therefore fail.</p> <p>The second ground of appeal complains that the Court of Appeal <em>"failed to appreciate" </em>that <em>"particulars of the alleged negligence had to be set out in the pleading. " I</em> would also have summarily dismissed that ground with the observation that failure to set out particulars of negligence in a plaint, is not a ground for rejecting the plaint. 1 am however, constrained to make a few observations in relation to it, because of a remark made by the learned trial judge which appears to have received oblique approval by the Court of Appeal and 1 think it ought not to be allowed to stand.</p> <p>1 agree with my learned brother Tsekooko JSC, whose judgment I read in draft, that the learned trial judge erred in the remark he made to the effect that particulars of negligence is a matter for evidence. Particulars of negligence is undoubtedly a matter of pleadings. They have to be set out, not at the whims or discretion of the party pleading the negligence, but as a matter of proper pleading. If the party pleading negligence omits to set out particulars thereof, the court can order that party to do so. 0.6 r.3 of the CPR provides:</p> <blockquote> <blockquote><strong>"3. <em>A further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in any pleading, <u>may in all cases be ordered </u>upon such terms as to costs or otherwise as may be just." </em></strong>(emphasis added)</blockquote> </blockquote> <p>An order under this rule is ordinarily made on application by one party, but the court can make it on its own motion, if it deems it necessary for better bringing out the issues for determination.</p> <p>It is apparent to me that in the instant case there was a mix up of two distinct matters, namely <strong><em>"cause of action" </em></strong>and <strong><em>"further and better particulars." </em></strong>It is most probable that this resulted from the all too frequent but undesirable <strong><em>desire to "ambush" </em></strong>the opponent. Instead of requesting for better particulars, and if they were not given, applying for an order under 0.6 r.3 of the CPR, the appellant erroneously pursued the contention that the plaint did not disclose a cause of action. In my opinion, the trial judge could at that stage have ordered the respondent to provide the particulars. Unfortunately, as I have already noted, he took the erroneous view that it was a matter for evidence. Be that as it may, the appellant cannot be heard now, to blame the courts below, for not holding that the plaint should set out further and better particulars. They were not asked to so hold or order.</p> <p>Having said that however, I hasten to add, that the facts pleaded in the plaint did not sufficiently disclose the <strong>particulars of negligence </strong>which the respondent intends to rely on. If indeed it intends to rely on the maxim <strong><em>res ipsa loquitur </em></strong>it ought to plead so. It is of course not for me to pre-empt the parties by suggesting what further particulars should be given. Nonetheless I should point out that as the plaint stands, it would be open to the respondent to adduce evidence to prove a string of <strong>diverse acts or omissions </strong>by the appellant's driver, which the appellant has not been made aware of through the pleadings. That would be unfair. The fundamental purpose for pleadings is to enable each party to know what case it has to answer or meet. I am not pursuaded that where it will be relied upon, it is not necessary to plead the maxim <strong><em>res ipsa loquitur. </em></strong>If the appellant had pleaded that it would rely on the maxim, then it would be bound by that pleading. The court would then after hearing all the evidence, adjudicate whether indeed the facts proved showed negligence. For the court to take the view at this stage that no more particulars need to be given because the maxim applies, would, in my opinion, amount to prejudging the case.</p> <p>All in all I would dismiss the appeal. However, although the respondent is technically successful, 1 would not award it the full costs. In my opinion, much as the appellant misdirected its approach in the original objection and erroneously pursued the appeals, the appeals could have been avoided if the respondent had been, as Tsekooko JSC, puts it, <strong><em>"graceful enough to recognize" </em></strong>the deficiency in the plaint and conceded to supply the particulars of negligence. For that reason I would award to the respondent only 1/2 of the costs of the appeals in this Court and the Court of Appeal. I would make no order as to costs for the preliminary objection in the High Court.</p> <p><strong><em>Dated at Mengo the 24th day of April 2002.</em></strong></p> <p>&nbsp;</p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-2d514934904a29895f92ec0d554cf689"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/supreme-court/2002/24/supreme-court-2002-24.rtf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 13:36:16 +0000 Anonymous 15733 at https://old.ulii.org Priamit Enterprises Ltd v Attorney General ((Civil Appeal No. 10 of 2000)) [2002] UGSC 39 (19 December 2002); https://old.ulii.org/ug/judgment/supreme-court/2002/39 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/civil-procedure" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Civil Procedure</a></li><li class="field-item odd"><a href="/tags/conduct-proceedings" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Conduct of proceedings</a></li><li class="field-item even"><a href="/tags/preliminary-objections" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Preliminary Objections</a></li><li class="field-item odd"><a href="/tags/institution-proceedings" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Institution of proceedings</a></li><li class="field-item even"><a href="/tags/cause-action-0" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Cause of action</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p><strong>THE REPUBLIC OF UGANDA </strong><br /> <strong>IN THE SUPREME COURT OF UGANDA</strong></p> <p>&nbsp;</p> <p><strong>(CORAM: ODOKI, CJ, ODER, TSEKOOKO, KAROKORA, AND MULENGA JJ.S.C.)</strong></p> <p>&nbsp;</p> <p><strong>CIVIL APPEAL NO. 10 OF 2000</strong><br /> <br /> <strong><em>B E T W E E N</em></strong></p> <p>&nbsp;</p> <p><strong>PRIAMIT ENTERPRISES LTD: :::::::::::::::::::: APPELLANT</strong><br /> <strong>AND</strong><br /> <strong>ATTORNEY GENERAL: :::::::::::::::::::: RESPONDENT.</strong></p> <p>&nbsp;</p> <p>&nbsp;</p> <p><em>(Appeal from the decision of the Court of Appeal at Kampala (Manyindo, DCJ, Tivinomujuni, and Berko, JJ.A) dated 26.4.2000 in Civil Appeal No. 3 of 1999).</em></p> <p>&nbsp;</p> <p><strong><em>JUDGMENT OF ODER - JSC.</em></strong></p> <p>This is a second appeal. It is against the judgment of the Court of Appeal, upholding the High Court Ruling upholding a preliminary objection by the respondent that the appellant's plaint in the suit in the High Court did not disclose a cause of action.</p> <p>The appellant instituted a suit in the High Court against the respondent. The amended plaint stated, inter alia:</p> <blockquote><br /> <br /> <strong>"3. <em>The plaintiffs claim against the defendant is for shs. 8,812,500= arising as hereunder:</em></strong><br /> <br /> <strong>4<em>. Prior to 8<sup>th</sup> June, 1994 the plaintiff supplied tyres to Uganda Transport Co. (1975) Ltd. (herein after referred to as "the company"), a company which the Uganda Government is the sole shareholder.</em></strong></blockquote> <blockquote> <table> <tbody> <tr> <td><strong>5.</strong></td> <td><strong><em>The said company owes the plaintiff Shs.8,812,5000= for the tyres supplied. Documents pertaining to the supply of the tyres to this company are hereto attached as annexture "A1" to "A".</em></strong></td> </tr> </tbody> </table> </blockquote> <blockquote><strong>6. <em>The Company has defaulted to pay the said amount and despite several repeated demands by the plaintiff to the company to pay the latter has refused, neglected and/or failed to pay the same or any part thereof.</em></strong></blockquote> <blockquote> <table> <tbody> <tr> <td><strong>7.</strong></td> <td><strong><em>The Uganda Government, in order to liquidate the company, caused General Notice No. 35 of 1994 and an advertisement to be put in the Uganda Gazzette of 01-07-94 and in the New Vision newspaper of 02-08-94, respectively so as to sell the company's assets and terminate its existence. Copies of the said Gazzette and the New Vision newspaper cuttings are attached hereto marked "B" and "C" respectively.</em></strong></td> </tr> <tr> <td><strong>8.</strong></td> <td><strong><em>The Uganda Government is the sole shareholder/ member/proprietor of the company and at all material times operated/ran it as such A copy of the articles and memorandum of association which were filed for the registration of the company and only signed by the ministers of the Uganda Government in their official capacity are attached hereto and marked annexture "D".</em></strong></td> </tr> <tr> <td><strong>9.</strong></td> <td><strong><em>The plaintiff shall contend that by reason of the above mentioned facts and section 23 of the PERD statute, the Government is liable to pay the plaintiff from the divesture account set up under the said statute the sum of Shs.8,812,500= incurred by the company".</em></strong></td> </tr> </tbody> </table> </blockquote> <p>&nbsp;</p> <p>The respondent defended the suit and averred in his written statement of defence, inter alia:</p> <blockquote><br /> <br /> <strong><em>"3. In reply to paragraph 7 the defendant avers that S.33 of the companies Act is inapplicable to this case. The defendant therefore contends that the company was fully incorporated as a body corporate with limited liability and the Government cannot be liable for its debts or liabilities if any.</em></strong><br /> <br /> 4. <strong><em>In the alternative but without prejudice to the foregoing the defendant contends that the plaintiff was or ought to have been aware of the legal status of the company and dealt with it as a legal entity with limited liability and is therefore estopped from turning around claiming that the Government should be liable for the debts of the company if any."</em></strong></blockquote> <p>&nbsp;</p> <p><em>At </em>the commencement of the hearing of the suit, the respondent's counsel Mr. Matsiko, took a preliminary objection that the appellant's amended plaint disclosed no cause of action against the appellant. The objection was based on the ground that the company to which the tyres had been supplied was a body corporate with capacity to sue and be sued. There was, therefore, no basis whatsoever for the Government to be liable for actions of such a company (hereinafter referred to as <strong><em>"UTC") </em></strong>which was duly incorporated with limited liability. The company was a legal person independent of the Government. Mr. Mugenyi, the appellant's counsel at the trial opposed the respondent's objection on the ground that it had been taken prematurely. The objection should have been made after evidence had been heard, when it would have been known whether a right existed, whether such a right had been violated and whether the respondent was liable. In any case, counsel contended, the appellant's cause of action had been disclosed by the appellant's pleading of section 23 of the of the Public Enterprises Reform and Divestiture Statute, 1993 (<em>"the Statute").</em></p> <p>The learned trial judge upheld the respondent's preliminary objection and struck out the plaint on the ground that the wrong party was sued.</p> <p>The appellant's appeal to the Court of Appeal was dismissed and the learned trial judge's ruling was upheld. Hence this appeal, in which, originally there was only one ground of appeal. This Court granted leave to the appellant to amend its memorandum of appeal by adding a second ground, but the same was subsequently abandoned by the appellant. In the result, only the original ground was argued. It is that:</p> <p>&nbsp;</p> <p>&nbsp;</p> <p><strong>"The <em>learned Judges erred in law and fact in upholding the finding of the High Court Judge that the appellant's plaint in the original suit did not disclose a cause of action and in particular failed to take into account the relevant considerations in an application to strike out pleadings and thereby arrived at a wrong decision"</em></strong><br /> &nbsp;</p> <p>In my view the ground of appeal offends rule 81(1) of the Rules of this Court, in that it is argumentative. However, since both parties did not address us on the point, we left the ground to stand as it is.</p> <p>Both parties to the appeal filed written statements of their respective arguments under rule 93(1) of the Rules of the Court. The appellant's written submission was filed by Mr. Byenkya Ebert of M/s. Byenkya, Kihika and Co. Advocates, and that of the respondent was filed by Mr. Joseph Matsiko, Senior State Attorney of the Attorney General's Chambers.</p> <p>The substance of the appellant's written statement of its arguments is that the learned Justices of Appeal erred in law and in fact when they found that the plaint did not disclose a cause of action against the respondent. On the contrary, it is contended that the wording of the plaint clearly showed that the claim against the respondent was based on a combination of facts and law. The appellant's learned counsel relied on the case of <strong><em>Wycliff Kiggundu -vs- Attorney General, Civil Appeal No. 27/92 (S.C.) (unreported).</em></strong></p> <p>&nbsp;</p> <p>The decision in that case has established the principles on which an application to reject a plaint should be decided when the claim in the plaint is comprised of a combination of facts and law. In the instant case, the plaint showed that the Government was in the process of liquidating the UTC which was indebted to the appellant. The plaint then asserted that by virtue of the said liquidation and the operation of section 23 of the Statute the Government was liable to pay its debts from a designated fund called the <strong><em>"Divestiture Account." </em></strong>Whether or not the facts alleged in the plaint would make the Government liable to pay the appellant from the divestiture account, it is contended, would require a construction of section 23 in the context of the statute as a whole, and an application of the section to the facts alleged in the plaint. On the principle of <strong><em>Kiggundu's </em></strong>case (supra), counsel contended, this necessitated an investigation of the facts alleged and a trial in the instant case.</p> <p>Further, on the authority of <strong><em>Kiggundu's </em></strong>case (supra) the appellant's learned counsel contended that a distinction must be drawn between an application to reject a plaint and one in which a matter of law is set down for argument as a preliminary point. This distinction was clearly explained in <strong><em>Nurdin All Dewji and Others -vs- Meghji and Others (1953), 20 EACA 132. </em></strong>The distinction is that under order 7 rule 11(a) of the Civil Procedure Rules, an inherent defect in the plaint must be shown rather than that the suit is not maintainable in law. In the latter case a preliminary point should be set down for hearing as a matter of law. If a party insists that as a matter of law no suit can be brought the opposite party should not try to have the plaint rejected under 0.7 rule 11; but it should apply to have the suit dismissed as a preliminary point of law.</p> <p>Learned counsel contended that in the instant case the respondent's objection of the plaint consisted of two parts. The first was that UTC was a limited liability company with Corporate personality for whose debt the Government was not liable. The gist of this objection, counsel contended, was that the suit was not maintainable in law against the respondent. Counsel argued that this is the sort of case which this Court found in <strong><em>Kiggundu's </em></strong>case (supra) could not be appropriately decided by an application to reject a plaint under O.7 r. 11. The appellant's counsel contended that it was never the appellant's case that the Government was liable simply because it was a shareholder in UTC. The appellant's contention was simply that Government was liable because the Statute made it liable in cases where it chose to divest from a public enterprise.</p> <p>The respondent's second objection, the appellant's counsel contended, was that in terms of section 23 of the Statute the Government would be liable to pay creditors of a divested company from the divestiture account if such enterprise had been sold and the proceeds banked into the divestiture account. Once again that was essentially an objection that as a matter of law the suit was not maintainable. Counsel contended that as <strong><em>Kiggundu's </em></strong>case (supra) shows, that objection was not maintainable under O7 r. 11.</p> <p>In the circumstances, the appellant's counsel submitted that the Court of Appeal, when faced with mixed questions of fact and law as set out in the amended plaint in the instant case, erred in principle in entertaining the application to reject the plaint under 0.7, r. 11 and in granting it without ordering a full trial on the merit. I understand the learned counsel in this regard to be criticising the Court of Appeal for upholding the trial court's decision to strike out the plaint on the respondent's preliminary objection.</p> <p>&nbsp;</p> <p>The appellant's learned counsel then proceeded to discuss facts and the law alleged in the plaint which he contended disclosed a cause of action. He contended that the application of the Statute should not have been restricted to s.23 only as the Court of Appeal did. By so doing, the Court of Appeal contravened a cardinal rule of statutory interpretation which is that a court does not look at a single provision in isolation but should interpret the provisions in the context of the statute as a whole. Reliance was placed on <strong><em>Canada Sugar Refining Company Ltd. -vs- The Queen (1898) 13, Appeal Cases (H.L.) </em></strong>in support of this submission. On the basis of these authorities it is contended, the Court of Appeal's interpretation of s.23 of the Statute should have been more inclusive, because by referring to section 23 the appellant made the entire statute and the agreements referred to in it relevant to the suit.</p> <p>In paragraph nine of its plaint the appellant referred to <strong><em>"Divestiture Account" </em></strong>which is defined in s.2 of the statute as meaning the Divestiture Account established by virtue of the Development Credit Agreement. The appellant's learned counsel contended that by virtue of that definition the agreement is incorporated in the statute.</p> <p>Further, if the Court of Appeal interpreted the statute as a whole, it is contended, it would have found that the process of liquidation of the UTC, alleged in the plaint, was not the result of ordinary insolvency or winding up under the Companies Act, but a form of divestiture carried out under the authority of the statute. The Company is listed as public enterprise number 38 under class IV in the schedule to the statute. It was one of those public enterprises from which the State was required to divest fully. The liquidation of the company was therefore, not the result of economic necessity but the implementation of a political decision that had the force of law. UTC was not being divested because of its inability to pay its debts. According to the definition of <strong><em>"divestiture" </em></strong>in s.2 of the statute, it is a broader legal concept that can be satisfied without alleging the sale of a public enterprise. It is contended that the appellant's pleading in paragraph seven of its plaint sufficiently alleged that divestiture had taken place.</p> <p>Learned counsel further contended that the provisions of s.34 of the statute was intended to ensure that no private person would be adversely affected by the political decision to divest from public enterprises. The right to take legal action was expressly preserved by that section to survive the divestiture. It follows that such a right of action could not be against the divested enterprises (which would no longer be inexistence or would have lost all their assets) but against the entity for taking the said political decision. In the light of the provision of section 34, and contrary to the conclusion in the lead judgment of Twinomujuni, JA, it was not a discretion of Government to pay or not to pay the creditors of a public enterprise. The Government was liable to do so.</p> <p>The appellant's counsel also referred to the definition of the Development Credit Agreement by virtue of which the divestiture account was established. Under s.2 of the statute, <strong><em>"Development Credit Agreement" </em></strong>means the Development Credit Agreement entered into on the 9<sup>th</sup> day of January 1992, between the Republic of Uganda and the International Development Association.</p> <p>The appellant's learned counsel submitted that the definition means that the agreement in question is incorporated in the statute and that the statute and the agreement should be read together. It would be impossible to make a proper judgment of the scope of the Divesture account without doing so. Although the agreement was not tendered to the trial court or the Court of Appeal, learned counsel said from the Bar that it has been attached to the appellant's list of authorities submitted to this Court.</p> <p>Learned counsel also referred to the definition of "Divestiture Account" in section 2 of the statute. It "means a separate account to be established in Uganda Shillings in the Divestiture Secretariat under the direct control and supervision of the co-ordinator of PERD, to handle all proceeds from, and claim relating to, the implementation of the P.E. divestiture program and to be supported by the borrower with annual budgetary contributions, as required, determined on the basis of estimates of net liabilities expected to arise in each year."</p> <p>In the learned counsel's view, this definition of the <strong><em>"Divestiture Account" </em></strong>has the following effects:</p> <blockquote> <table> <tbody> <tr> <td>(a)</td> <td>The divestiture account was intended to handle all claims relating to the implementation of the divestiture program without exception.</td> </tr> <tr> <td>(b)</td> <td>All sales proceeds whether arising from the sale of the enterprise itself or from the sale of assets in a liquidation process would be remitted to the divestiture account. All proceeds must be deposited in the divestiture account. Only the co-ordinator of PERD had power to deal with the said account. The liquidator/receiver is, therefore, not authorized by law to settle obligations to creditors.</td> </tr> </tbody> </table> </blockquote> <p>&nbsp;</p> <p>The appellant's learned counsel concluded that in view of his submission made above the appellant had met all the criteria laid down by the case of <strong><em>Auto Garage -vs- Motokov (1971) EA 514, </em></strong>for establishing that it had a cause of action against the respondent, that:</p> <blockquote> <blockquote><br /> <br /> (i) it enjoyed a right against a public enterprise, namely it was owed money by UTC;<br /> <br /> (ii) its right had been violated by UTC which had not paid the appellant;<br /> <br /> <br /> (iii) the defendant was liable as it had put UTC in liquidation under the statute and was consequently liable to settle the appellant's claim against UTC from funds in the divestiture account.</blockquote> </blockquote> <p>&nbsp;</p> <p>All three elements having been satisfied, it is submitted, the Court of Appeal was in error in finding that the appellant's plaint did not disclose a cause of action. This appeal should, therefore, be allowed.</p> <p>The respondent opposed the appeal. The gist of its written submission in reply is that respondent's objection to the plaint was made under O.7, r. 11(a) of the CPR, which provides that <strong><em>"a plaint shall be rejected where it does not disclose a cause of action." </em></strong>It is contended that the rule is mandatory. The case of <strong><em>Auto Garage &amp; Others -vs- Motokov </em></strong>(supra) is cited in support of this submission. It is submitted that the appellant's pleading in paragraphs four to nine of its plaint failed to meet the three tests laid down in <strong><em>Motokov's </em></strong>case (supra), which was followed by this Court in <strong><em>Mugenyi &amp; Co. Advocates -vs- The Attorney General </em></strong>(supra) the facts of which were similar to those in the instant case. In that case a firm of advocates sued the Attorney General in the High Court for recovery of their legal fees, owed by M/s. Uganda Transport Company (1975) Ltd. and lost. Their appeal to this Court was dismissed on the ground that the Government was wrongly sued as UTC was an incorporated company with legal personality separate from the Government.</p> <p>The respondent's counsel further submitted that on the authority of <strong><em>Everett -vs- Ribbonds &amp; Another (1952) 2QB. 198, </em></strong>where there is a point of law which may dispose of a litigation, it should be taken so at the close of the pleading or shortly thereafter. It is contended therefore, that in the instant case, the learned Justices of Appeal were correct in holding that for the reason that UTC is a limited liability company responsible for its own debts, the appellant's plaint disclosed no cause of action against the respondent.</p> <p>With regard to s.23 of the statute, learned counsel submitted that the original plaint made no mention of that section. The original plaint founded the appellant's case on the allegation that by reason of the Government being the sole shareholder of UTC; and by virtue of s.33 of the Companies Act (cap. 85), the Government was liable for UTC's debt to the appellant. On the authority of <strong><em>Mugenyi &amp; Co. Advocates -vs-Attorney General </em></strong>(supra), the appellant's original plaint disclosed no cause of action as laid down by <strong><em>Auto Garage </em></strong>(supra). No amendment in law was permissible. The plaint was a nullity from the beginning for not having disclosed a cause of action. Amendment by introduction of section 23 of the statute did not, therefore, validate the plaint.</p> <p>The respondent's learned counsel submitted in the alternative that in any case, amending the plaint by including s.23 of the statute, did not save the plaint. It did not disclose any cause of action. This is because firstly, the section does not give a creditor of a public enterprise unfettered right to be paid from the Divestiture Account. The legislature used the phrase <strong><em>"may use the proceeds. </em></strong>This left the Executive with a discretion on how to use the proceeds of sale from the Divesture</p> <p>Account. Secondly, the money to be paid from that Account to a creditor of a public enterprise must be from the proceeds of the sale of the debtor public enterprise.</p> <p>The respondent's learned counsel submitted that for a plaint to disclose a cause of action on the basis of section 23, it must show that the debtor public enterprise was sold, and that the proceeds of sale are on the Divestiture Account. If such averments are missing from the plaint, then there would be no cause of action. The original and the amended plaint in the instant case did not make such averments. No cause of action was therefore disclosed.</p> <p>Regarding the appellant's submission that, on the authority of <strong><em>Kiggundu's </em></strong>case (supra) the Court of Appeal should have ordered a trial of the suit on merit, the respondent's learned counsel replied firstly, that no such facts which necessitated such a course of action by the Court of Appeal had been pleaded in the appellant's plaint. Secondly, <strong><em>Kiggundu's </em></strong>case (supra) is distinguishable from the instant case. In that case, it was common ground that under regulation 36 of the Public Service Commission Regulations, interdiction could only last a reasonable time. This court held in that case that a reasonable time might depend on construction of the Regulations on whether or not the facts alleged would fit within that construction. If the facts alleged necessitated construction of the Regulations then the issue must go on trial. In other words there must be facts alleged in the pleadings so as to create necessity for interpretation of the legal provision. There must be questions of facts arising from the pleadings, so that the court would have to determine whether or not the facts fit within the construction of the legal provision.</p> <p>&nbsp;</p> <p>It is submitted that in both the original and amended plaint no cause of action was disclosed. The original plaint merely reiterated that the Government was liable to the appellant because it was the sole shareholder in UTC. In the purported amended plaint it was stated that under s.23 of the statute, the Government was liable to pay the appellant. No facts were alleged in the plaint to indicate why Government is liable under s.23. There was no indication that Government had sold UTC or that proceeds of sale had been placed in the Divestiture Account. In the circumstances no facts were pleaded which made the s.23 applicable.</p> <p>Regarding the appellant's criticism of the Court of Appeal that it restricted its interpretation of the statute to s.23 only the respondent's learned counsel submitted that there were no facts pleaded in the plaint which required consideration of other provisions of the statute. Section 23 is an unambiguous provision. The authorities cited by the appellant in this regard are irrelevant as their effect is that it is necessary to look at a legislation as a whole only if it is necessary to do so to clear any inaccuracy or inconsistency which was not necessary for purposes of construction of s.23.</p> <p>The respondent's learned counsel submitted that the Development Credit Agreement was not part of the statute as it was not incorporated in it. Further, the plaint did not bring the Agreement into issue by pleading it.</p> <p>The learned counsel contended that the allegations that the liquidation of UTC was not a result of economic necessity, but the implementation of a political decision are attempts by the appellant to adduce evidence from the bar, which this Honourable Court should not allow to be done.</p> <p>&nbsp;</p> <p>Regarding section 34 of the statute, the respondent's learned counsel submitted that whereas the section saves the right to seek redress in respect of a divested public enterprise that redress must be sought against the proper party.</p> <p>The definition of divestiture under section 2 of the statute includes where necessary the winding up or dissolution of a public enterprise. The respondent's learned counsel submitted that the Government could wind a company up or dissolve it as a form of divesture. There is no indication that the liabilities of such a public enterprise are assumed by the Government. It is contended therefore, that the mere pleading in a plaint that a public enterprise is being liquidated does not disclose a cause of action against the Government. Were it so, this Court in <strong><em>Mugenyi &amp; Co. Advocates -vs- Attorney General </em></strong>(supra) would have held that the Government was liable for UTC's debt. In the circumstances the fact that the Government commenced the process of divesting UTC by liquidation alone did not make the Government assume the liabilities of UTC. The mere pleading that UTC was being liquidated did not disclose a cause of action.</p> <p>Finally, with regard to the elements of a cause of action as laid down in the case of <strong><em>Auto Garage and Others -vs- Motokov </em></strong>(supra) the respondent's learned counsel submitted that those elements were missing in the instant case.</p> <p>The respondent's learned counsel then prayed that this appeal should be dismissed with costs.</p> <p>The respondent's preliminary objection to the plaint in the High Court does not appear to have been based on any rule of procedure. However on appeal in the Court of Appeal it was common ground that the relevant rule was 0.7 r. 11(a) of the Civil Procedure Rules which as far as it is relevant provides:</p> <blockquote><br /> <strong><em>"11. The plaint shall be rejected in the following cases -(a) where it does not disclose a cause of action"</em></strong></blockquote> <p>&nbsp;</p> <p>The application of the rule has been considered by this court and its predecessors in many cases. In the case of <strong><em>Auto Garage and Others -vs- Motokov </em></strong>(supra) a history of the application of the rule in East Africa and elsewhere was traced extensively by Spry, V.P. in his judgment with which the other members of that court agreed. Some of the salient points which emerge from the authorities are that where the rule applies the provision that a plaint <strong><em>"shall be rejected," </em></strong>appears to be mandatory; in the absence of allegations of the necessary facts in a plaint, there is no pleading and a cause of action; where there is a point of law which, if decided in one way, is going to be decisive of the litigation, then advantage ought to be taken of the opportunity afforded by the Rules to have the case disposed of at the close of pleadings or very shortly thereafter.</p> <p>In the <strong><em>Auto Garage </em></strong>case (supra), it was said that for a plaint to disclose a cause of action, three essential elements must be disclosed to support the cause of action.</p> <p>These are that:</p> <blockquote> <table> <tbody> <tr> <td><strong><em>(1)</em></strong></td> <td><strong><em>The plaintiff enjoyed a right;</em></strong></td> </tr> <tr> <td><strong><em>(2)</em></strong></td> <td><strong><em>The right has been violated and</em></strong></td> </tr> <tr> <td><strong><em>(3)</em></strong></td> <td><strong><em>The defendant is liable.</em></strong></td> </tr> </tbody> </table> </blockquote> <p>In the instant case, the Court of Appeal followed <strong><em>Auto Garage </em></strong>(supra), and earlier or subsequent cases with similar conclusions. As I see it the Court of Appeal's decision consists of two parts. I shall consider the submissions of the learned counsel for the appellant and for the respondent in the same contexts.</p> <p>The first part relates to the application of the decision in the case of <strong><em>Mugenyi &amp; Co. Advocates </em></strong>(supra) to the instant case. This is that UTC was an incorporated company with limited liability, and had a capacity to sue and be sued. As such it was an independent legal personality separate from the Uganda Government, which was its sole shareholder. As a result the Government was not and could not be liable for UTC's debts it owed to the appellant. The appellant's plaint therefore disclosed no cause of action.</p> <p>I entirely agree with that holding.</p> <p>In its original and amended plaint, the appellant's claim was partly based on the allegation that the Government was liable for the UTC's debt owed to the appellant, because Government was its sole shareholder. In its written submission filed in this court, the appellant's learned counsel minimized the importance of that basis of the appellant's claim as pleaded in the plaint. The written submission reads:</p> <p>&nbsp;</p> <p>&nbsp;</p> <p><strong><em>"The objections raised by the Attorney General in the present case were essentially that the suit was not maintainable in law. It was argued firstly, that as UTC was a limited company with corporate personality, the Government even if it were a sole shareholder was not liable for its debts. (It should be noted that though the trial judge and the Judges of the Court of Appeal spent sometime considering and upholding this objection, it was in fact never the basis of the plaintiff's case that the Government was liable simply because it was a shareholder in the UTC). This is clear from the wording of paragraph 9 of the amended plaint."</em></strong></p> <p>In my opinion this criticism of the learned Justices of Appeal, with respect, is unjustified, in view of the appellant's pleading in paragraphs 3 to 8 of the plaint.</p> <p>Except for the passage which I have just reproduced above, the learned<br /> counsel for the appellant in his written submission completely ignored this aspect of the appellant's original case as stated in the paragraphs of the amended plaint to which I have just referred and the decision of the Court of Appeal in that regard. The attack of the judgments of the learned Justices of Appeal is concentrated on their alleged failure to properly apply s.23 of the statute to the instant case, an aspect of the appeal to which I shall now turn. This relates to the second part of the judgments of the learned Justices of Appeal.</p> <p>The statute came into force on 8<sup>th</sup> October, 1993, by virtue of the provisions of Statutory Instrument, 1993 No. 72. It was subsequently amended by the Public Enterprises Reform and Divestiture (Amendment) Act, 2000, which came into force on 6 <sup>th</sup> January, 2000.</p> <p>The original plaint was dated 24-04-1998. The date of filing it in court is not clear from the record. Paragraph 9 of the original plaint did not mention s.23 of the statute. The section was introduced by an amendment of that paragraph which was granted by the trial court on an application by the appellant.</p> <p>In the circumstances, it means that when the plaint was amended to plead s.23 of the statute; when the respondent's preliminary objection to the plaint was taken on 08-06-98, and when the learned trial judge upheld the objection on 02-07-98, it was s.23 of the statute before the amendment of the statute which was in operation. The appeal to the Court of Appeal was commenced by a notice of appeal filed on 10-07-98, the appeal was heard on 17-03-99, and that court's judgment was dated 26-04-2000. In the circumstances, the amended s.23 which became effective on 06-01-2000, is not applicable to the instant case. The operation of that new section is not retrospective, any way.</p> <p>The Respondent's learned counsel has submitted that because the original plaint did not disclose a cause of action the subsequent amendment of the same was null and void. With respect, I do not accept that argument, because the respondent, represented at the trial by the same counsel as now, did not object to the appellant's application for the amendment at the material time. The learned counsel made his preliminary objection to the plaint, which was upheld by the learned trial judge on the basis of the amended plaint. It is far too late now to raise an objection to the amended plaint.<br /> &nbsp;</p> <p>As far as it is relevant, s.23 of the statute provides:</p> <blockquote><br /> <br /> <strong><em>"23. Government through the responsible Minister and the Board of Directors and Management of the Public Enterprise may use the proceeds of sale in the Divestiture Account: -</em></strong></blockquote> <blockquote> <blockquote><br /> <strong><em>(a)</em></strong><em> <strong>to pay off debts, if any, or otherwise compromise with creditors of the public enterprise.</strong></em></blockquote> </blockquote> <blockquote><br /> <em>(b) </em><br /> <br /> <br /> <em>(c)<strong> "</strong></em></blockquote> <p>In his lead judgment, Twinomujuni, JA, set out the provisions of section 23 of the statute and proceeded:</p> <p>&nbsp;</p> <p>&nbsp;</p> <p><strong><em>"In my judgment, I would agree with the learned trial judge that section 23 PERD Statute -</em></strong></p> <blockquote> <table> <tbody> <tr> <td><strong>(a)</strong></td> <td><strong><em>authorizes Government through its agents to pay creditors of a public enterprise from the Divestiture Account;</em></strong></td> </tr> <tr> <td><strong>(b)</strong></td> <td><strong><em>the money to be paid must be from the proceeds of the sale of the debtor public enterprise;</em></strong></td> </tr> </tbody> </table> </blockquote> <p>&nbsp;</p> <p>&nbsp;</p> <p><strong>(c)<em> to pay or not to pay is in the discretion of Government through its agents.</em></strong></p> <p>&nbsp;</p> <p>&nbsp;</p> <p><strong><em>It follows therefore, that for a plaint to disclose a cause of action on the basis of section 23(a) PERD Statute, it must aver that the debtor public enterprise has been sold and the proceeds of sale are on the Divestiture Account. If no such averment is made in the plaint, then the plaint does not disclose a cause of action."</em></strong><br /> &nbsp;</p> <p>I agree with that interpretation of s.23(a) of the statute.<br /> The learned Justice of Appeal then proceeded to apply that interpretation<br /> to the pleading in the appellant's plaint. He said:</p> <p>&nbsp;</p> <p>&nbsp;</p> <p><strong><em>"A critical examination of paragraphs six to nine of the amended plaint (supra) will reveal that it was averred that UTC, a wholly Government owned company, had defaulted in paying for tyres supplied to it by the appellant. It is stated that Government had advertised its intention to sell the company in the Uganda Gazette and the New Vision News Paper and the cuttings were attached to the plaint. It is no where stated in the plaint that UTC has been sold and that proceeds of sale are on the Divestiture Account. All it says is that Government intends to sell UTC. Does that give the appellant a cause of action in the circumstances of this case? In my opinion it does not. In fact one of the advertisements especially the one in the Uganda Gazette i.e. General Notice No. 85 of 1994 is very instructive. The notice reads:</em></strong></p> <p><em>'General Notice No. 85 of 1994, UGANDA TRANSPORT COMPANY (1975) LIMITED - IN LIQUIDATION NOTICE APPOINTMENT OF LIQUIDATORS.</em></p> <p>&nbsp;</p> <p><em>Notice is hereby GIVEN TO GENERAL PUBLIC THAT THE Hon. Minister of Works, Transport and Communication appointed G. W. Egaddu and F. Mungereza as Joint Liquidators of Uganda Transport Company (1975) Limited on 10<sup>th</sup> June, 1994.</em></p> <p>&nbsp;</p> <p><em>Please, therefore, take notice that all suppliers, creditors, customers, directors, employees and the general public at large that the whole of the assets were vested in the liquidators.</em></p> <p>&nbsp;</p> <p><em>All suppliers of goods and services having claim on the company are hereby required to submit such claims to the liquidators. All persons owing monies or other assets to the company are hereby notified to settle their debts to the company within 14 days from the date of this notice </em></p> <p>&nbsp;</p> <p><em>G. W. Egaddu &amp; F. Mungereza Joint Liquidators. Kampala</em><br /> <em>23<sup>rd</sup> June, 1994.'" </em>The Learned Justice then continued -</p> <p>&nbsp;</p> <p><strong>"The <em>contents of this notice are very clear. It required creditors of UTC including the appellant who had a genuine claim to lodge their claim with the liquidator. It is not clear whether the appellant did so. It is also very clear that the company at that stage was not yet sold. It seems to be premature for the appellant to sue the Government what it has not yet become liable and at a time when its authorized agents are inviting creditors to lodge their claims.</em></strong></p> <p>&nbsp;</p> <p><strong><em>It seems to me that the appellant had three choices -</em></strong></p> <blockquote><br /> <br /> <em>(a) To prove its debt in liquidation.</em><br /> <em>(b) To sue UTC for the debt.</em></blockquote> <blockquote> <blockquote><br /> <em>(c) To wait until UTC is sold and then if Government does not settle the debt, to sue it.</em></blockquote> </blockquote> <p>&nbsp;</p> <p>&nbsp;</p> <p><strong><em>In my Judgment, the suit against the Attorney General was prematurely filed. The plaint did not disclose any cause of action against him and the trial Judge was correct to dismiss the suit. In my view, the appeal should fail."</em></strong><br /> &nbsp;</p> <p>Given the construction of s.23 of the statute made by the learned Justice of Appeal and the application of that construction to the appellant's pleading in his plaint, with which I agree as correct, it is inevitable to conclude that even under s.23 of the statute the plaint disclosed no cause of action. This in my view, is because, the plaint did not plead facts to necessitate the application of that section to the appellant's allegations in the plaint.</p> <p>The case of <strong><em>Wycliff Kiggundu </em></strong>(supra) is a decision on which the appellant's learned counsel strongly relied in support of his contention that when an application to reject a plaint comprises of a combination of facts and law an investigation of the facts is necessary and a trial on merit should be ordered. I agree with the decision in <strong><em>Wycliff Kiggundu's </em></strong>case and I think that it is still good law, but my opinion, with respect, is that the case is distinguishable from the instant one. In <strong><em>Kiggundu's case </em></strong>the facts of the circumstances in which <strong><em>Kiggundu </em></strong>was interdicted from his office as the Ag. Director of the Uganda Civil Aviation Authority for over two years were well stated in his plaint. He averred in his plaint inter alia, that his interdiction for over two years was ultra vires the Public Service Commission Regulations. Regulation 36(1) of those Regulations allowed interdiction of a public officer if proceedings for his dismissal are about to be taken or if criminal proceedings are being instituted against him. <strong><em>Wicliff Kiggundu, </em></strong>who had been interdicted under the Regulations, remained interdicted for over two years. In the end he was retired in the public interest. He sued the Government that he had been wrongly interdicted and later had been wrongly retired from the Public Service in the public interest. At the beginning of the trial, the Attorney General applied for the plaint to be rejected. The learned trial judge agreed with the preliminary objection and rejected the plaint under O.7. r.11(a) of the C.P.R. On appeal it was common ground that Regulation 36 allowed interdiction for only a reasonable time and not indefinitely as the learned trial judge had held.</p> <p>This Court held that what a reasonable period of interdiction might be, would depend upon the true construction of Regulation 36 and whether or not the facts alleged <strong><em>"would fit within that construction" </em></strong>(as the Court put it). In the circumstances, this Court held that once questions of facts arose, then the issue should go to a full trial.</p> <p>In the instant case, the facts as pleaded in the plaint did not, in my view call for construction and application of s.23 of the statute. There were no facts alleged in the plaint which necessitated the case to go for trial on merit.</p> <p>The appellant's learned counsel also criticized the learned Justices of Appeal for not considering all the provisions of the statute other than s.23, and for not applying to the case certain definitions made in section 2 of the statute. These are: <strong><em>"Divestiture", "Divestiture Account" and "Development Agreement." </em></strong>The learned counsel also strongly argued that s.34 of the statute protected the rights, inter alia, of creditors of public enterprises being divested. The right to take legal action is expressly preserved by that section to survive divestiture of public enterprises.</p> <p>I shall comment briefly on the appellant's submission in this regard. In my opinion, consideration of the relevance of these words or expressions and of section 34 to this case would arise only if s.23 of the statute was applicable to the appellant's suit as set out in the plaint. I have already said that the learned Justices of Appeal were correct in holding that it is not, because no facts were pleaded in the plaint to necessitate the application of s.23 to the appellant's suit.</p> <p>&nbsp;</p> <p>In the circumstances, the only ground of appeal should fail. In the result, I would dismiss this appeal with costs to the respondent, here and in the courts below.</p> <p>&nbsp;</p> <p><strong><u>JUDGMENT OF ODOKI, CJ</u></strong></p> <p>&nbsp;</p> <p>I have had the advantage of reading in draft the Judgment of Oder JSC, and I agree with him that this appeal should be dismissed with costs here and in the courts below.</p> <p>As the other members of the Court also agree with the Judgment of Oder JSC and the orders proposed by him, this appeal is dismissed with costs here and in the courts below.</p> <p>&nbsp;</p> <p><strong><u>JUDGMENT OF TSEKOOKO JSC:</u></strong></p> <p>I have read in draft the judgment prepared by my learned brother, the Hon. Mr. Justice Oder, Jsc., and which he has just delivered, and I agree with him that the decisions of the courts below are correct and that the appeal should be dismissed, that the appellant must pay the respondent's cost both here and in the courts below.</p> <p><strong><u>JUDGMENT OF KAROKORA, JSC.</u></strong></p> <p>I have had the benefit of reading in draft the judgment prepared by my learned brother, the Hon. Justice Oder, JSC, and I do agree with him that the Court of Appeal was perfectly correct in confirming the decision of the High Court which had upheld the preliminary objection raised by the respondent that the appellant's plaint had disclosed no cause of action.</p> <p>In the result, I agree that the appeal should be dismissed with costs here and in the courts below.</p> <p><sub><strong><em>Delivered at Mengo this 20th day of December 2002.</em></strong></sub></p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-282a41a0fb115b46b62ddd126e6b6735"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/supreme-court/2002/39/supreme-court-2002-39.rtf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 13:35:48 +0000 Anonymous 15677 at https://old.ulii.org