Sabiiti v Attorney General (Civil Suit 761 of 1988) [1992] UGHC 31 (10 April 1992)

Full Case Text

## THE REPUBLIC OF UGANDA

## II- THE HIGH COURT OF UGANDA AT KAMPALA

## CIVIL SUIT NO. 7o1 OF 1988

SABIITI SEBUNYA . PLAINTIFF. VERSUS

THE ATTORNEY GENERAL ' ...................................... DEFENDANT. BEFORE:- The Honourable Mr, justice J. W. N. Tsekooko

## PULI N G

After plaintiff closed his case, the defence called D/SSP Kibuuka to testify for the defendant. In the course of his .•living evidence he appeared to me to be testifying in violation of the provisions of Order 6 Rule 7 and indeed Rule 9 of the Civil procedure Rules. It appeared to me that defendant was departing from his pleadings.

In paragraphs A and 5 of the plaint, the plaintiff averred:-

On or about the 2nd day of September, 1986, at Kabalagala police post in the Kampala District of the Republic of Uganda, the plaintiff's motor vehicle Reg. No. UVS 11? was wrongfully detained by officers of the Uganda police Force at all material times acting within the course of their employment and or with the authority of the said Ministry, force and/or governemnt of Uganda. The •plaintiff's said motor vehicle and registration book thereof were since kept at the said police post.

5. While at the said police post a number of examination were carried out in respect of the said vehicle but the same was not released; and the plaintiff duly filed a Statutory Notice of

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Intention to Sue upon the Attorney General through *m/s* Nicholas L'vanga & *Co..* Advocates

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In his VJrittan statement of -jDe fence the defendant•in paragraph 3 thereof pleaded ''Paragraphs J,2-:- and 5 of the plaint are denied and the -plaintiff shall be put to strict proof thereof". paragraph *k* of the defence was similarly worded in answer to paragraphs 6,7 and 8 of the plaint. I have had occasions to comment about the unsatisfactory nature of these types oi defence pleadings. See' >• my ruling dated 19th April, 1990 in HCCS Mo. *^36* of 1989 - George Brown Turyamureeba Vs. Attorney General (unreported). I dealt with this matter in some detail and considered some authorities on the matter. I also alluded to this fashion of defence in my ruling in HCCS No. 314/87 (N. R. Behangana Vs\* Attorney General) on 19th March, 1990.

A perusal of authorities indicated that this type of pleading somewhat \_ is defective:/ See Yusuf Aimohamed Osman Vs. Dobie & Co., /I9^3/ EA. 288; Sabayaga Farmers Coop. Vs. Mwita /19^97 EA. 38; Hoshi Vs. Uganda Suger Factory /1968/ EA. 570 at page 572. What I gather from a perusal of those cases is that if the defendant makes a general denial, as in this case, he cannot without seeking amendment of the defence, be allowed to give evidence other than that which is intended marely to prove the denial.

p/SSP/l<ibuuka, DW1 , was adducing evidence about the investigation- of•the case involving motor vehicles Reg. Mo. UVS 113 (the subject of the suit) and Motor Vehicle Reg. No. UWP 440. He was testifying how handwriting expert was involved in those investigations. I warned both counsel that in view of the pleadings,

especially the Written Statement of Defence, and the issues framed, this type of evidence offended the practice of pleadings and was a departure from the defence. Defence counsel Mr. Chebrion submitted that the denial in para 3 of the Written Statement of Defence reproduced above entitled him to adduce this evidence in rebuttal. Plaintiff's counsel strangely saw no harm in the evidence and raised no objection. As he is a successor advocate I refrain from making adverse observations about his stand on this matter. I hope the plaintiff appreciates that stand.

However because of the nature of the defence statement and for the reasons I gave in Turyamureeba's case I shall not permit the defence counsel to make his witness wander beyond what the denials in the Written Statement of Defence permit. Toconduct their case on a deferent footing to the extent of even raising is unaceptable new issues. With respect to Mr. Chebrion the framing of the Written Statement of Defence ties him down.

I therefore rule that Mr. Chebrion is not right in his submission that the defence is justified in adducing evidence from Mr. Kibuuka in the manner being done now because of the denials in paragraph 3 of Written Statement of Defence. That Written Statement of Defence is insufficient for such a purpose.

I make no order as to costs in respect of this ruling.

J. W. N. TSEKOOKO JUDGE $10/4/1992.$

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