THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(CIVIL DIVISION)

CIVIL SUIT No. 159 OF 2018

•  IDDI OUMA
• SSEMBAJJWE PAUL  :::::::::::::::::::::::::::::::::::::: PLAINTIFFS

VERSUS

• UGANDA NATIONAL ROADS AUTHORITY
•  DOTT SERVICES LIMITED
• ATTORNEY GENERAL OF UGANDA :::::::::::::::::: DEFENDANTS

BEFORE: HON. MR. JUSTICE BASHAIJA K. ANDREW

RULING:

At the commencement of the hearing of the suit, Mr. Enos Tumusiime, learned counsel for the 2^nd defendant, raised a number of preliminary objections to the suit. The first one is that the 2^nd plaintiff has never appeared in court. That as such he is not interested and or has abandoned the suit which should be dismissed on that account.

Counsel also sought to move court under Order 6 rule 30 of the Civil Procedure Rules (CPR) to strike out the suit mainly on the ground that it discloses no reasonable cause of action. Counsel submitted that the plaint alleges fraud against the defendants but lacks the particulars of fraud.  That no particulars of fraud are pleaded or particularized and for that reason should the plaint should be struck out.

The third objection is that the subject of the contract for the rehabilitation of Nakalama-Tirinyi Road has already been reinstated, extended and was granted to the 2^nd defendant. Counsel argued that as such the plaint is overtaken by events and it serves no useful purposes. That it is moot and should be struck off.

The fourth objection is that the plaintiffs bring their action also under Article 50 of the Constitution on behalf of Ugandans and seek general damages. That however, the plaintiffs have not pleaded anywhere that they are tax payers, yet they claim damages on behalf of all Ugandans.  That as such they have not disclosed a cause of action and their case fits in the category of futile and useless cases and the plaint ought to be struck out with costs.

Mr. E. Kayondo, who held brief for Mr. Sserwanga, learned counsel for the plaintiffs, replied by filing written submissions. On the first preliminary objection, counsel argued that the case was coming for mention for the first time and that the 2^nd plaintiff has previously attended court/mediation sessions, but that on the date for mention he was out of the country.  That in any case, under Order 3 r.4 CPR a party to a suit may appear in person or through a recognized agent or an Advocate duly appointed. That this particular objection should be overruled since the presence of the 2^nd plaintiff’s Advocate in court is deemed appearance on behalf of the 2^nd plaintiff.

On the objection that no particulars of fraud are pleaded, counsel submitted that under paragraph 6 (b) and 13 (b) of the plaint, a cause of action and prayer are made to the court to declare that the tripartite agreement between the defendants was executed illegally and fraudulently entered into. That the particulars of illegality are of the said fraud and irregularities which are pleaded even though they are headed as “particulars of illegalities” in the procedure to reinstate the contract that was initially terminated. That fraud is an illegality. For that proposition counsel relied on the case of Fredrick J.K. Zaabwe vs. Orient Bank and Others S.C.C.A No. 04 of 2006. Counsel opined that having pleased illegalities, fraud is consequently pleaded as an illegality in the plaint.

On the issue of particulars of fraud, counsel argued that the word “fraud” was omitted in the heading of subparagraphs (ii), (iii), (iv) and(v) but that particulars of fraud are disclosed and that the omission to head them with the word “fraud” is a mere technicality that does not go to the root of the matter. For these propositions, counsel cited Okello vs. UNEB Civil Appeal No. 12 of 1982 (SC) (unreported), and Tororo Cement Co. Ltd vs. Fronkina International Ltd SCCA No. 2 of 2001.

Regarding the point that the plaint is overtaken by events and that the contract has been reinstated and granted to the 2^nd defendant, counsel replied that whether or not a suit is overtaken by events depends on whether there is a live dispute between the parties. That the plaintiffs in this case seek declarations that the tripartite agreement entered into by the defendants on 23^rd March 2018 was null and void and executed fraudulently.  That court is being called upon to consider various transactions set out in pleadings and make the declaration as prayed for. That it is immaterial whether the contract was eventually awarded or even that the road the subject of the contract was eventually worked upon. That in any case, a preliminary objection where evidence is required cannot dispose of a suit. To support that argument counsel cited Mukisa Biscuit Manufacturing Company vs. West End Distributors LTD, (1969) EA 696. Counsel argued that whether or not the suit is overtaken by events is a matter of evidence which shall be heard and determined during trial.

Regarding issue of seeking damages on behalf of Ugandans, counsel submitted that damages can only be determined after the trial.  Counsel again relied on the case of Mukisa Biscuit Manufacturing Company vs. West End Distributors Ltd (supra). Counsel maintained that the suit discloses a cause of action against defendants in so far as it is filed under Article 50 of the Constitution and pleaded under paragraph 5 of the plaint.

Opinion:

The first objection is that the 2^nd plaintiff has never appeared in court. Who may appear in court in a suit is settled by Order 3 r.1 CPR which provides as follows;

“Any application to or appearance or act in any court required or authorized by the law to be made or done by a party in such court may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his or her recognised agent, or by an advocate duly appointed to act on his or her behalf; except that any such appearance shall, if the court so directs, be made by the party in person a party may appear in court in a suit in person, or by his or her recognized agent, or by an Advocate duly appointed to act on his or her behalf.” [underlined for emphasis].

Counsel E. Kayondo holding brief for Mr. Sserwanga for the plaintiffs, has been appearing for the 2^nd plaintiff. They are Advocates of the High Court and other courts subordinate thereto; and there is no contrary information nor evidence to that effect. The said counsel are deemed to represent and appear for the 2^nd plaintiff as his duly appointed Advocates.  The objection in that regard is overruled.

On the issue that the plaint does not disclose a cause of action, it is indeed observed from the plaint that no particulars of fraud are pleaded or particularized.  Although merely not particularizing fraud would per se not render the pleadings bad, the failure to plead fraud where the claim is founded on fraud would alone render the plaint bad for not disclosing a cause of action.  The reading of the plaint in paragraph (q) (i) shows a subheading entitled;

“PARTICULARS OF THE ILLEGALITIES IN THE PROCEDURE TO RE-INSTEATE THE CONTRACT THAT WAS INITIALLY TERMINATED:”

The plaintiffs then go on to aver facts they allege to constitute illegalities in the procedure to re-instate the contract, from sub-paragraphs (i) – (v).  A careful reading of the said averments only shows that the plaintiffs essentially fault the legality of the procedures adopted by the 1^st defendant in reinstating the 2^nd defendant’s contract that was initially terminated. However, nothing in the averments points to or refers to any fraud in reinstating the initially terminated contract by the 1^st defendant.  

Of course, it is not sustainable for counsel for the plaintiffs to argue that merely because procedure adopted by the 1^st defendant was illegal, it was necessarily fraudulent.  Counsel relied on Nafula vs. Kayanja & Anor Civil Suit No. 136 of 2011 cited in Fredrick J.K. Zaabwe Vs Orient Bank and others case (supra) that fraud is an illegality. This court agrees that indeed fraud is an illegality. However, not every illegality is necessarily fraud. This is more so when the illegality complained of is procedural illegality as in this case. That cannot amount to fraud. The definition of the term fraud in Fredrick J.K. Zaabwe case (supra) is very instructive. It means, among others;

“... the intentional perversion of truth by a person for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right.....”

On the other hand, Black’s Law Dictionary 8^th Edition defines “illegal” to what is contrary to or not authorized by law. As these definitions apply to the particulars pleaded in the plaint in the instant case, no fraud was plead let alone particularized. Needless to emphasize, that this is not a matter of form but a substantive requirement that where a cause of action is based on fraud, the alleged fraud must be pleaded and then particularized. Merely pleading and setting out particulars of alleged illegality in procedure adopted by 1^st defendant in reinstating the contract does not amount to the plaintiffs pleading fraud.  Since the claim of the plaintiffs is founded in fraud, it had to be pleaded with clarity for the opposite parties to be well aware of the claim they were to meet. This was not done and it defeated the purpose of pleadings.

The object of pleadings is to inform each party of the case of the opposite party that he or she will meet before and at the trial.  As was held by Supreme Court in Interfreight Forwarders (U) Limited vs. East African Development Bank [1994 - 1995] HCB 54, pleading particulars in detail is meant to define with clarity and precision as to the issues or questions which are in dispute between the parties and are to be determined by court. If the pleadings fail to clarify the precise facts constituting a cause of action or if they prevent either party from knowing the cause of action, the plaint will not disclose a reasonable cause of action and if it is the defence, it will not offer a reasonable defence. In either case the pleadings shall be struck off as a result.

Whereas this court agrees with the holding in Okello vs. UNEB (supra) that failure to specify particulars of fraud under a definite heading entitled “particulars of fraud” does not vitiate pleadings, the failure to plead fraud would vitiate a plaint where the claim is founded on fraud. This is not a mere technicality in form as submitted by counsel for the defendant. It is a substantive requirement that a cause of action be disclosed by the plaint and annextures thereto if any; and the failure to do so renders the plaint a nullity. See: Al Hajj Nasser N Ssebaggala vs. attorney General & Others Constitutional Petition No.1 of 1999.  

Apart from the above, the plaintiffs bring their action under Article 50 of the Constitution and claim to be doing so on behalf of Ugandans. Article 50(supra) provides as follows in the relevant part;

“50. Enforcement of rights and freedoms by courts.

(1) Any person who claims that a fundamental or other right or freedom guaranteed under this Constitution has been infringed or threatened, is entitled to apply to a competent court for redress which may include compensation.

(2) Any person or organisation may bring an action against the violation of another person’s or group’s human rights.”

The plaintiffs also seek the award of damages presumably on behalf of the Ugandans.  

Court finds pleading as such untenable. A case cannot be brought on behalf of an unnamed amorphous group or persons simply called Ugandans without their knowledge or consent. Whereas Clause (2) cited above allows any person or organisation to bring an action against the violation of another person’s or group’s human rights, the other person or organization or group must be ascertained and known with clarity in the pleadings. An amorphous group called Ugandans cannot sue or be sued.  In the event the unascertained group called Ugandans loses the case, it would raise complex issues of recovery of costs or even damages from such group by the defendants. That reinforces the earlier finding that the suit discloses no reasonable cause of action against the defendants.

A similar position was taken in James Rwanyarare and Another vs. Attorney General, Constitutional Petition No.11 of 1997) [1997] UGCC1 (18 DECEMBER 1997). The Constitutional Court rejected the view that;

“any spirited person can bring action or represent any group of persons without their knowledge or consent. That would be undemocratic and could have far reaching consequences….For example…if petitioners lost the action with costs to the respondent but they were unable to raise the costs, how would the respondent recover those costs from the unknown group called the Uganda Peoples Congress? What if the other members of the Uganda Peoples Congress chose to bring similar petitions against the respondent – would the matter have been foreclosed against them on grounds of res judicata?”

The Court concluded that the matter was unlawfully brought and dismissed it. As applicable to the instant case, it would mean the plaintiffs unlawfully brought the suit under Article 50 (supra) on behalf of a group called Ugandans. That also means the plaintiffs had no locus to bring the suit and as such the suit discloses no cause of action against the defendants. Pursuant to Order 7 r.11 CPR the plaint would be struck out with costs.

On whether the suit is overtaken by events, that is not an issue that can only be determined after hearing evidence, as argued by counsel for the plaintiffs. It is trite law that pleadings of parties if not controverted, can also bring out material facts that substantively show, on their merit, that a suit is indeed bad in law and /or overtaken by events. For instance, in paragraph 20 (c) of the written statement of defence of 2^nd defendant, it is averred that;

“The new Contract signed by the 2^nd Defendant with the 1^st and 3^rd Defendants, Annexture “I” to the Plaint, paragraphs 2 (i), (ii), (iii) and (iv), is for new scope of works, more than the Contract entered into on 2^nd February 2015 and the new Contract is UGX.135,371,669,415/₌ which is less than the Bid price by China Civil Engineering and Construction Corporation of UGX.137,932,201,382/₌ saving the Ugandan tax payer over UGX.2,000,000,000/₌  as a result the new contract that is being executed by the 2^nd Defendant.”

There is no particular reply to this averment in the defence relating to the facts that the new contract has been entered into as of 2^nd February 2015; which predates the filing of the instant suit on 24^th April,2018 by over three years. Therefore, the argument that the plaintiffs seek a declaration that the tripartite agreement is null and void, is unsustainable. Whereas a declaration is one such remedy a court can grant in a suit, the court will be reluctant to grant it where such a remedy will not be effective.  If the effect of a remedy is that it will be of no consequence at all, the court may not issue such a remedy.

In the instant case, the pleadings show that the subject matter of the suit - the tripartite agreement, was entered into reinstating the earlier terminated agreement to rehabilitate the Nakalama-Tirinyi Road. It is uncontrovertibly pleaded by the 2^nd defendant that the contract was already performed. Therefore, declaring that the tripartite agreement is null and void is of no consequence at all. It is futile and akin to administering medicine to a dead person.  A declaration for the sake of it is of no effect and would be issued in vain. There is no live dispute as between the parties that merits the grant of a declaration sought. This is not to mention of an order of prohibition also sought in the plaint; which cannot be issued because no court order can prohibit what has already been done.

The next effect is that the objections have merit. Save for the first one, all the other objections are upheld and the plaint is struck off with costs.

BASHAIJA K. ANDREW

JUDGE

28/02/2020.