Frokina International Ltd v Tororo Cement Co. Ltd. (Civil Suit No. 1215 of 1999) [2000] UGHC 49 (25 May 2000)

Full Case Text

### THE REPUBLIC OF UGANDA

**-3-**

## IN THE HIGH COURT OF UGANDA AT KAMPALA

### CIVIL SUIT NO. 1215 OF 1999

FROKINA INTERNATIONAL **LTD** PLAINTIFF

### VERSUS

TORORO CEMENT CO. LTD. DEFENDANT

BEFORE: THE HON. MR. AG. JUSTICE P. K. MUGAMBA PROCEEDINGS:

02/03/2000

Mr. Peter Walubiri for plaintiff

## Court:

No evidence of service. Mr. Walubiri advocates to serve the defendants for nation on 9th March, 2000 .

Paul . K. Mugamba AG. JUDGE

09/03/2000

Mr. Zeija for plaintiff

Mr. Lumweno:

There is a following point of objection. The plaint is defective as it offends 0.7 rule 11(a) of the Civil Procedure Act which provides the plaint shall be rejected in the following cases

(a) where it does not disclose a case of action.

I refer to paragraph 5 of the plaint. The plaintiff claims that caused by the negligence of the Defendant's driver for which the defendant is vicariously liable. The plaint does not plead the particulars of the negligence on which the plaintiff is relying. As such the plaint is defective. I refer to H. Katarahwire vs Paul Lwanga (1988-90) HCB 86. Plaints based on negligence must set out particulars of alleged negligence. I refer also to case of Mukasa vs Sigh & others [1969] E. A 442, it shows particulars of negligence must be pleaded. The plaint was rejected because of particulars not being pleaded. It was held inter alia that the plaintiff must first plead to particulars of negligence on which he relies and which will be binding on he can shift the onus of disproving negligence into the defendant. Judge went on to observe that the plaint could not be amended. the accident was him before

I pray the plaint be rejected with costs under the law quoted with costs to the defendant.

## Mr. Zeija:

The written statement of defence does not indicate anywhere that he was to raise a preliminary point of objection and his list of authorities does not indicate the cases he was referred to. that surprise the plaintiff. is in contravention of the rules as counsel's intention was to

However, paragraph 4 of the plaint clearly indicates that the Defendant*'* s truck rammed into the plaintiff*'* s premises extensively damaging the premises. These facts indicate that the think more particulars were necessary than those in paragraph 4. Counsel is departing from pleadings and his argument should be rejected. I so pray. driver was responsible for the damage. I do not

# Mr. Lumweno:

Under 0.7 rule 11 (a) it is mandatory that if the claim discloses no cause of action it should be rejected. Paragraph 4 falls far short of what particulars of negligence as supposed to be. In Makula international vs Cardinal Nsubuga's Anor (1982) HCB II in Court, illegal. I pray as earlier. it is observed a Court of Law cannot sanction what is

## Court:

Ruling on 25/05/2000 at 9. 00 a.m.

#### RULING:

Mr. Lumweno, Counsel for the defendant objection on the grounds that the plaint is defective for offending 0.7 rule 11 (a) of the Civil Procedure Rules and, this should be rejected. Counsel argued that the plaint discloses no cause of action. raised a preliminary

On the other hand Mr. Zei ja contends that in the written statement of defence there is no indication that a preliminary point of law was to be raised at the hearing and to the list of authorities does not contain authority referred to. While praying the objection should not be entertained on Counsel contends that paragraph 4 of cause of action exists. the score the plaint shows that a

Mr. Zeija argues that because the written statement of defence does not indicate a preliminary objection would be raised Court entertain the objection. A similar argument was before this Court before Lady Justice Byamugisha in H. M. Kayondo vs Attorney General [1988 -1990] HCB 127. Court on the occasion held that an application to strike out pleadings does not need Court went further to hold that even if the procedure was wrong use of wrong procedure does not invalidate proceedings since it does not go to the jurisdiction if there is no prejudice caused. I find that no prejudice was caused and Mr. Zeija acquainted himself well by giving authorities which were invaluable to Court then. Suffice is to a formal application. should not

say that Court in its deliberation, under 0.7 & 11, could reject I find a plaint without necessarily being prompted by anybody. Mr. Zeija's argument not sustainable.

Mr. Lumweno's argument is that no case of action is discussed. Paragraph 4 of the plaint states;

into the'plaintiff's premises on Plot M 587 Nakivubo view and extensively destroyed its doors and walls. 11 "On 18/8/99 the defendant's truck and its trailer rammed

In the case of Auto Garage and others vs Motokov (No. 3) [1971] EA 524 the Court of Appeal for East Africa held that in order for a cause of action to be disclosed the plaint must show that the plaintiff had a right, that that right had been violated by the defendant and that injury on loss had resulted. Paragraph 4 shows that the plaintiff's premises had through the negligence of the defendant been extensively destroyed.

further averred by Counsel 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 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. See also Lehe Motors Ltd vs Overseas Motor Transport it may also be instructive to refer to the ruling of this Court It was (T) Ltd [1959] EA 603. for the defendant that the a cause

in Katikiro of Buqanda vs The Attorney General of Uganda [195 8] EA 765 where it was held that where serious issues of law are the subject of a suit they should not be decided in a summary way.

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In the event. inclined to overrule the objection. Costs will be in the cause. I am

AG. JUDGE Paul . K. Mugamba

25/05/2000

Mr. Kiiza Fred holding brief for Mr. Lumweno for the defendant. Mr. Mugerwa Court Clerk Mr. Zeija for the plaintiff

Court:

Ruling read.

. K. Mugamba JUDGE Paul AG.

Mr. Kiiza Fred:

I have instructions to seek leave to appeal this ruling.

Court:

The defendant is at liberty to appeal this ruling. Leave granted.

. K. Mugamba JUDGE Paul AG.