Kebirungi v Road Tainers Ltd and Another (Civil Appeal No. 121 of 2003) [2008] UGCA 22 (1 January 2008)

#### THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UCANDA AT KAMPARA IN THE HIGH COURT OF UGANDA

## CORAM: HON. MR. JUSTICE G. M. OKELLO, JA. HON. LADY JUSTICE C. K. BYAMUGISHA, JA. HON. MR. JUSTICE S. B. K. KAVUMA, JA.

#### CIVIL APPEAL NO. 121 OF 2003

$10$

# <table> KEBIRUNGI JUSTINE APPELLANT

**VERSUS**

- $1.$ ROAD TAINERS LTD. - $2.$ SPEDAG (U) LTD. - WANYOIKE THENGE NJUGUNA..... RESPONDENTS $3.$

(Appeal from the decision of the High Court, (Rubby Aweri Opio, J) delivered on the 1<sup>st</sup> day of September 2003 in Misc. Application No. 285 of 2003 arising from Civil Suit No. 687 of 2002).

$20$

### JUDGMENT OF STEVEN B. K. KAVUMA, JA.:

This appeal arises out of an order made by the High Court on $1^{st}$ September 2003 in Misc. Application No. 285 of 2003 striking out the appellant's plaint in HCCS No. 687 of 2002 on the ground that it did not disclose a cause of action.

The background to the appeal is that when Misc. Application No. 285 of 2003 came up for hearing, the appellant, who was the plaintiff in the lower court, applied to amend her plaint. At the

hearing of the application, the appellant tried to introduce a plea 30 of **Res ipsa loquitur**. Counsel for the respondent objected on the ground that the plaint could not be amended as it did not disclose a cause of action. In his view, the plaint was a nullity as it did not specify particulars of negligence. The trial judge upheld the objection and struck out the plaint hence this appeal.

At the hearing of the appeal, Mr. Benard Tibesigwa represented the appellant. Neither the respondent nor his counsel was present and no explanation was given for their absence. Counsel for the respondent had been duly served and there is an affidavit of service on record. On the application of counsel for the appellant, the Court ordered the hearing to proceed experte.

t0

t

o

There are three grounds of appeal namely: -

- l. The learned Hon. Judge erred in law to hold that the plaint did not contain particulars of negligence. - 2. The learned Judge erred in law to hold that the plaint did not disclose a cause of action. - 3. The learned trial judge erred in law by striking out the plaint instead of rejecting it.

There are two agreed issues arising from the above grounds of appeal for resolution namely: - 20

- l. Whether in fact and law the plaint did not disclose <sup>a</sup> cause of action. - 2. Whether the plaint should have been struck out instead of being rejected.

Counsel for the appellant argued the issues separately and consecutively. I shall consider the two issues in the same order as counsel did.

With regard to issue one, which effectively covers grounds of appeal I and 2, counsel submitted that the plaint as drafted disclosed a cause of action in negligence in paragraphs 7, 8 and 9 and in a single sentence, paragraph 9 (a), particularized the negligence. Therefore, counsel submitted further, the learned trial judge erred when he ruled that the plaint did not disclose <sup>a</sup> cause of action.

The learned trial judge had this to say in his ruling on the issue ofdisclosure ofa cause ofaction by the appellant's pleadings: - "I move to the jirst leg wltere Counsel contended that the ploint does not disclose particuhrs of negligence. The offending paragraphs are pardgraphs 7, I and 9 which sre as follows: -

l0

o

"7. On the y't' October 2001 the ubove mentioned motor vehicle semi-trailer being negligently driven by the 3'd Defendant knocked the Ptaintiff <sup>s</sup> vehicle corona 452 UDS ot Jinja Road round about at Jinjo Road ond coused extensive damage to the Plaintiffs car. The driver who was obviously ot fault wus convicted at Bugonda Road

Court and fine (sic) on $12/10/2001$ under Criminal Case No. UNPT 1871/2001.

- **8.** The damage caused by the driver's negligence for which the registered owners and their agents are vicariously liable cost the Plaintiff's Ug. Shs. 5,054,700/= in repairs of the car. - The Plaintiff shall contend that the said $9.$ accident was caused by the gross negligence of the $3^{rd}$ Defendant in the course of his employment with the $1^{st}$ and $2^{nd}$ Defendants.

Particulars of Negligence: -

Driving recklessly without due regard $(a)$ to other road users.

> The relevant paragraphs in the proposed amendment are paragraphs 9 and $10: -$

> The Plaintiff will aver that the $``9.$ Defendants have absolutely no defence to the suit and reliance will at the trial be placed on the principle of res ipsa loquitor but without prejudice to

$10$

averments contained in paragraphs 6, $7, 8 and 10.$

$10.$ The Plaintiff will aver that the accident was caused solely by the negligence of the $2^{nd}$ Defendant who drove motor vehicle No. 056G/2B/3819/M/BENZ recklessly $KAH$ without due regard to other road users. As a result of the accident the Plaintiff suffered loss and damages for which she hold the Defendant liable".

What amounts to particulars of negligence was clearly stated in the case of Mukasa Vs. Singh and others [1969] EA 422 where Sheridan, Ag. C. J (as he then was) held that particulars of negligence must be pleaded and that even in a suit where the doctrine of res ipsa loquitor is going to be invoked it is still necessary to plead particulars of negligence. The Learned Judge had this to say: -

"It is not enough to plead the mere fact of an accident between three motor vehicles on the highway. Nor do the bare words "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" in paragraph 4 save the plaint.

$10$

$20$

"The doctrine of res ipsa loquitor is concerned with the onus of proof and is not a substitute of The Plaintiff must first plead $negligence...$ the 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 Applicant."

From the above quotation I do agree with Counsel for the *Defendant that the mere words "driving recklessly without due"*

regard to other road users" do not amount to particulars of $10$ negligence. Those are bare words which only point to the fact of an accident. The Plaintiffs should have gone ahead to state particulars of negligence proposed in Atkin's Court Forms and Precedents (relied upon by the Learned Judge) as follows:-

"Particulars of negligence: -

The Defendant was negligent in that $he -$

- $(i)$ threw the said, (sack) on to the said highway with knowledge or means of knowledge that it *might cause injury to people thereon;* - with knowledge or means of knowledge as $(ii)$ aforesaid caused or permitted the said (sack) to *fall upon the said highway;* - $20$

$(iii)$ failed to keep away or any proper lookout or to have regard for persons using the said highway".

Even the proposed amendment does not cure the above defect as it is still devoid of particulars of negligence. Instead the Plaintiff sought to rely on the doctrine of res ipsa loquitor. According to the case of Mukasa Vs Singh & Others (supra), the doctrine of res ipsa loquitor is not a substitute for proof of The Plaintiff must first plead particulars of negligence. negligence on which he relies before he can shift the onus of disproving negligence on to the Defendant by pleading res ipsa

loquitor.

In as sheer desperation the Learned Counsel for the Plaintiff contended that the need for particulars of negligence was a mere technically in law. I don't agree with that proposition. I find support in the case of H. J. Stanley & Sons Ltd Vs. Akberali Saleh [1963] EA 574 where Spray J held as follows: -

'It is always distasteful to decide any issue on technical grounds rather than substantial merit, but that rules of pleading have been evolved in general interest so that all parties may know the allegations they have to meet and that issues may be framed and justice done without undue delay' *Emphasis added.*

$10$

In light of tlte above outhority, I jind that giving particulars of negligence is not a mere technicality but a substontial merit as it is from it thilt the Defendant is oble to know the allegotions to meet and tlte type of defence to prepore. The sum total of the ohove is thot the Court will Jind it eosy to frome issues ond determine the suit witltout undue delay.

For the obove reoson I find that the ploint (both originol and the amendment) does not disclose any couse of oction. The ssme is accordingly struck ortt witlt cosrs. . . .. ... "

I find it appropriate at this juncture to look at what the word 'disclose' in the context of a pleading disclosing a cause of action means and what to consider when ascertaining whether a particular pleading discloses a cause ofaction or not.

Pollock, C. B in Washington V Leake 1885 1l Exch 304 as quoted in Auto Garage Vs Motokov No. 3. l97l EL <sup>514</sup> said:

"But the word 'disclose' is a very vogue and general expression ond may mesn no more than that the party shall state his defence. The legisloture has made use of a word which does not necessarily convey more thon the sense of telling".

ln Cottar V Attorney General for Kenya ll938l 5 EACA 18, Sir Joseph Sheridan had this to say: -

t0

I

o "Whot is important in considering whether <sup>a</sup> cause of action is reveoled by the pleadings is the question ss lo wlutt right hos been violsted"

In Auto Garage Vs Motokov (No. 3) supra, Spray V-P went on to state: -

> "In addition of course the pldntiff must oppeor os a person aggrieved by the violation of the right and the defendont as a person who is liqble." The judge then summarized the position thus - "If a plaint sltows tltat the plaintiff enjoyed a right,, thot the rigltt has been violated tnd tltat the defendont is liable, tlten, in my opinion, a cause of action hos been disclosed ......'. If, on the other hond, ony of those essentials is missing, no couse of action has been sltown .....,.. "

I respectfully agree with the above statement of the law and the observations thereon. There are therefore, in my view, three essential elements to support a cause of action in a plaint. Firstly that the plaintiff enjoyed a right, secondly that the right has been violated and thirdly that the defendant is liable. 20

Further, the question whether a plaint discloses a cause of action must be determined upon the perusal of the plaint alone together with anything attached so as to form part of it and upon the

l0

I

o

assumption that any express or implied allegations of fact in it are true. See Jeraj Chariff & Co. VS. Chotai Fancy Stores [1e601 EA 374

As was held in Auto Garage and Others Vs Motokov (No. 3) Supra, Per Spry V - P, a plaint may disclose a cause of action without containing all the facts constituting the cause of action provided that the violation by the defendant of a right of the plaintiff is shown."

t0

o

In this appeal, the relevant paragraphs in respect of whether or not the plaint disclosed a cause of action are Nos. 7, 8 and 9 of the original plaint. I reproduce them here for ease ofreference.

- 7, "On 9th October, 2001 the above mentioned motor vehicle semi-trailer being negligently driven by the 3'd defendant knocked the plaintifl's vehicle Corona 452 UDS at Jinja Road round about at Jinja Road and caused extensive damage to the plaintiffs car. The driver who was obviously at fault was convicted at Buganda Road Court and fined on l2ll0l200l under Criminal Case No. UNPT 187112001. - The damage caused by the driver's negligence for which the registered owners and their agents are vicariously liable cost the plaintiff s Ug. Shs.5,054,700/: in repairs of the car. 8

t0

9. The plaintiff shall contend that the said accident was caused by the gross negligence of the 3'd defendant in the course of his employment with the I't and 2nd defendants."

Paragraph 9 (a) ofthe original plaint, provides:

9(a) PARTICULARS oF NEGLIGENCE,

"Driving recklessly without due regard to other road users." (emphasis added)

l0

o

Applying the above to the instant appeal and in light of the provisions of paragraphs 7, 8 and 9 of the original plaint, I find that that plaint contained sufficient material to tell the claim of the appellant. She pleaded negligence and she gave particulars of that negligence in paragraph 9 (a). She undoubtedly, had <sup>a</sup> right to use the road without being adversely affected by consequences of the acts or omissions of those who may drive recklessly and without due care or regard to other road users including herself. Her pleadings show that her right was 20 violated hence the accident and that the respondents' are liable for that violation.

Admittedly, it is usual for several particulars of negligence to be listed under the section of the plaint dealing with such particulars and under separate consecutive sentences or phrases. However, I find nothing wrong with stating such particulars in <sup>a</sup>

il

single sentence or phrase as is stated in paragraph 9 (a) above. It is not mandatory, in my view, that always particulars of negligence must be itemized in several separate sentences or phrases. Even where several sentences or phrases itemize such particulars, it is not the case that always a parfy would only prove his or her case by adducing evidence in proof of all of such particulars of negligence so itemized. Proof of a single particular of negligence can, in my view, be sufficient to establish the alleged negligence.

o

Paragraph 9 (a) of the original plaint, therefore, in my view, sufficiently gave the particulars of negligence as pleaded in the plaint. t0

I find the case of Mukasa Vs Singh and Others [969] EA 422 relied upon by the respondents distinguishable from the instant case in that Mukasa (supra) pleaded negligence on the part of the defendants but did not have even a single particular ofthe alleged negligence set out.

Issue one, and consequently grounds of appeal I and 2, therefore, succeed. 20

As for issue 2, which covers the third ground of appeal which is whether the plaint should have been rejected instead of being struck out, counsel submitted that the striking out of the plaint caused prejudice against the appellant. When the plaint is

rejected under **O.** 7 **r.** 11, counsel argued, a plaintiff could file a fresh suit. When a plaint is struck out, the plaintiff would have no remedy of filing a fresh suit.

I have held in respect of grounds of appeal 1 and 2 above that the plaint disclosed a cause of action in negligence, particulars of which negligence were also sufficiently given. In view of that holding, the question of either striking out the plaint or rejecting it therefore, does not arise. The learned trial judge was

therefore, clearly in error when he struck out the plaint. The $10$ proper course to take, in my view, would have been for the court to overrule the preliminary objection and proceed to try the case on its merits basing on the original plaint. Issue No. 3 and consequently ground of appeal No. 3 therefore, too succeeds.

In the result, I would allow the appeal with costs and order that the case be remitted to the High Court for trial on its merits but before a different judge.

I would so order.

$20$

Dated at Kampala this.... $\mathcal{L}^{\mathcal{L}}$ day of ................................... S. B. K. Kayuma **APPE**

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA **AT KAMPALA**

#### HON. MR JUSICE G. M. OKELLO, JA. $\mathsf{S}$ CORAM: HON. LADY JUSTICE C. K. BYAMUGISHA, JA. HON. MR JUSTICE S. B. K. KAVUMA, JA.

## **CIVIL APPEAL NO.121/03**

### **BETWEEN**

JUSTINE KEBIRUNGI::::::::::::::::::::::::::::::::::::

### AND

- 1. ROAD TAINERS LTD - 2. $SPEDAG(U)$ LTD - 3. WANYOIKE THENGE NJUGANA::::::::::::::::RESPONDENTS - $20$

$10$

[Appeal from the ruling and orders of the High Court of Uganda sitting at Kampala High Court Circuit (Aweri- Opio J) dated 1<sup>st</sup> September 2003 in *Miscellaneous Application No.285/03 in HCCS No. 687/021*

#### **JUDGMENT OF BYAMUGISHA, JA.** $25$

I had the benefit of reading in draft form the lead judgment that was prepared by

my learned colleague Kavuma, JA. I agree with the reasons and the orders he

has proposed in allowing the appeal. I have nothing useful to add.

Dated at Kampala this... $\lambda$ s.....day of... $\lambda$ e....................................

C. K. Byamugisha

**Justice of Appeal**

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA

# AT KAMPALA

Coram: Hon. Mr. lustice G. M Okello, lA Hon Lady Justice C. K Byamugisha, JA Hon Mr Justice S. B. K Kaotrnm, lA

# CIVIL APPEAL NO 121OF 2OO3

## BETWEEN

IUSTINE KEBIRUNGI APPELLANT

AND

1) ROAD TRAINERS LTD 2) SPEDAG (U)LTD

/

o

RESPONDENTS

3) WANYOIKE THENG NJUGAN

An Appeal from the ruling and orders of the High Court at Kampala (Aweri -Opio, J) date September 2003 in misc Application N0. 285/2003 in HCCs N0.687 /02 d 1.t

# IUDGMENT OF G. M OKELLO, IA

I have had the chance to read in draft the judgment of my learned brother Kavuma, JA just read. I entirely agree with the reasons he has given for allowing the appeal. I have nothing useful to add.

As Byamugisha, JA also agrees, the appeal shall and is hereby allowed on the terms and the orders proposed by Kavuma, JA

Dated at Kampala this ....................................

$\mu$ **G. M OKELLO**

**JUSTICE OF APPEAL**