Sule Pharmacy Limited v The Registered Trustees of The Khoja Shia Itana Shari Jamat (Miscellaneous Application 147 of 1999) [1999] UGHC 34 (1 June 1999)

#### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA

### MISCELLANEOUS APPLICATION NO. 147 OF 1999

(Arising from High Court Civil Suit No.30 of 1999)

SULE PHARMACY LIMITED. APPLICANT/PLAINTIFF

VERSUS

THE REGISTERED TRUSTEES OF

$\cdot$

THE KHOJA SHIA ITANA SHARI JAMAT. ...... RESPONDENT/DEFENDANTS

BEFORE: THE HONOURABLE MR. JUSTICE JAMES OGOOLA

#### **RULING**

This is an application for an order that the Respondent's/ Defendants furnish to the Applicant/Plaintiff further and better particulars of paragraph 1 of their Written Statement of Defence. The application was made by way of Notice of Motion under Order 6 rule 1(b) and Order 48 rules 1 and 3 of the Civil Procedure Rules ("CPR"). It was accompanied by the Applicant's supporting affidavit dated 10th February, 1999.

The grounds of the application, cited in an amended Notice of Motion, are as follows:-

That the Respondents/Defendants by their pleadings in $(a)$ paragraph 1 of the Written Statement of Defence intend to raise a preliminary objection that the suit is misconceived, bad in law.and unenforceable against it.

That the Respondents/Defendants do not elaborate in their $(b)$ pleadings as to why the suit is misconceived, bad in law and unenforceable against it.

(c). That if the Applicant/Plaintiff is not furnished with further and better particulars or statement of the nature of defence in

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paragraph <sup>1</sup> thereof. it will be taken by surprise at the trial.

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Court heard this application on 7/5/99.

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Amendment ,of learned Counsel He said that-as it was a and since 'it . At the hearing of the application Mr'. Babigumira, for the Applicant expressed a serious objection, the application was brought by way of Notice of Motion, pleading under Section 2 of the Civil Procedure Act, . had been instituted after the Civil Procedure Rules' 1998, the Notice filed did not comply with 0.6, r.l(b) of the Civil Procedure Rules, as| amended.

Amended 0;6, r.l(b) of the Civil Procedure Rules reads'as follows

ii list Every pleading shall be accompanied by a brief summary o£ evidence to be adduced, a list of witnesses, a list of documents and a list of authorities^ to be relied on: except that an additional list of authorities may be provided later with the leave of court. ' •

the cannot be amended. as a since a nullity on the case of Mr. Babigumira contended further that the attempt by Plaintiff's Counsel to amend the original Notice of Motion is ■nullity as the original Notice of Motion itself, He relied for this argument Bakunda Darlington v. Dr. Kinyatta, Election Petition No.1 of 1996, where the court held that as the original Petition was not accompanied by a competent affidavit, it could not be amended..

•'Mr. Babigumira then asked Court to strike off the application with costs since there was no competent application.

a Mr. Sserwadda,'learned Counsel for the Respondent, stated that the objection had no merit. He argued that whereas pleadings had to be accompanied by a summary of evidence to be adduced and the documents and authorities to be relied on, it is trite that in Notice of Motion supported by an affidavit, the evidence was contained in the affidavit and therefore not necessary to be added.

Mr. Sserwadda further argued that the Amendment to the Civil Procedure Rules was silent as to what is to be done if the party pleading will not call witnesses or will not rely on documents as was the case in this instant application.

Mr. Sserwadda also arqued that there was an amended Notice of Motion on record filed in Court on 16/3/99. There is an affidavit. in reply which was filed on 11/3/99 and the amended rule 19 of the Civil Procedure Rules allows a plaintiff to amend his plaint within the specified periods. He contended that the amendment was within the ambit of the rule to amend on 16/3/99 without obtaining court's leave.

$\iota_{\pm} \cdot$ Having had the opportunity to read the Notice of Motion and its [] accompanying affidavit, and also to study the arguments of Counsel for both sides, Court makes the following findings:-

- (1). indeed a Notice of Motion is a "pleading" within the definition of section 2 of the Civil Procedure Act; and $\sim$ - true, $0.6$ , $r.1(b)$ of the Civil Procedure Rules, $(2)$ $as$ amended, states that every pleading shall be accompanied by a brief summary of the evidence to be adduced and a $15$ list of witnesses, documents and authorities to be relied on.

Nonetheless, there are special circumstances that are recognised in the CPR (some explicity, and others implicity) in which the rule, as amended, does not and cannot apply with full force and effect. First, is the example of a Specially Endorsed Plaint under 0.33 of. In this regard, Court has expressly ruled that amended $2\pi$ the CPR. 0.6,r.1 did not affect the application of 0.33, in any way whatsoever, and that therefore it is not necessary to attach accompaniments to a plaint when proceeding under 0.33 - see PWICO v Mawokota Chemical Industries Ltd, Misc. Applicn. No.51/99 (arising from HCCS No.1252/98). In similar vein, the clarity of application of 0.6, r.1(b) to other instances has been $15$ the Those instances include, in particular, divorce, questioned.

petitions, custody matters, election petitions, and company causes see a paper on: Civil' Procedure (Amendment) Rules, 1998 (Implications) Overview, presented by John Mary Mugisha, Esq., at the Annual Judges Conference (21-23 Dec. 98) at Entebbe (p.13).

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Second,'this Court is prepared to hold that applications by Notice of Motion are specially provided for under 0.48,r.<sup>3</sup> of the CPR. That rule states that :

''Every notice of motion shall state in general terms the grounds of the application; and, where any motion is grounded on evidence by affidavit, a copy of any affidavit intended to be used shall be served with the notice of motion." [Emphasis added] . • '

In this Court's view, 0.48,r.<sup>3</sup> provides for a special procedure with respect to applications by notice of motion. This procedure is quite distinct from the procedure provided for under 0.6, r.l(b) as amended, with regard to all other pleadings. It is trite law of ( statutory construction (called the generalia *specialibus* rule) that where there is' a specific legislative provision and a general . provision on a particular matter or procedure, the specific provision takes precedence over the general provision. Similarly, where there is an internal conflict between different sections within a statute, the provisions of a general nature give way to . provisions relating to a particular subject matte'r - see Refrigerated Express Lines (A/Asia) Pty Ltd v. Australian Meat apd Livestock\* Corpn. (1980) 29 ALR 333, at 347. According to the *generalia specialibus* rule, therefore, if there is <sup>a</sup> general power (as is the case with 0.6,r.l - covering ''pleadings"), and there is 2.^ also a specific power (as is the case with O.48,r,3 - covering "notices of motion"), then the general power cannot be exercised\*to do that which is the subject of the special power. In this regard, this Court is disposed to apply the dictum of MEGARRY,J, in the Australian case No. 20, Cannon St. Ltd vl. Singer\* & Friedlander Ltd (1974) Ch.229, at 235 - namely:'

..the proper principle to apply if an enactment contains two

similar prohibitions, one wide and the other applying only to. a limited class of cases wholly within the prohibition, is to treat the wide prohibition as not applying to cases within the limited prohibition, especially if the limited prohibition is made subject to some exception and the wide prohibition is not."

In the instant application, the specific procedure of 0.48, r.3, takes precedence over the general procedure of 0.6, r.1(b), with regard to Notices of Motion.

Third, other circumstances render the application to this case of 0.6,r.1(b) moot by sheer force of reason and logic. In particular, the requirement of 0.6, r.1(b) to attach the specified information, 1D becomes moot where the information is, as in the instant case, simply inexistent or inapplicable.

In the instant case, the Applicant was not going to and could not, by any stretch of the imagination, possibly rely on any witnesses or documents or, indeed any authorities (other than the particular / 5 rule of the CPR cited in the Notice of Motion; as well as the information given in the supporting affidavit that accompanied the application). On the contrary, it is the Applicant who is asking for "better and further particulars" of the Respondent's case. For this Court to accede to the view that was pressed by learned $20$ Counsel for the Respondent, would in effect amount to a total cessation and denial of all applications for better and further particulars, since such applications do not in essence require the Applicant to supply information or engage in legal argumentation. If the very nature of an application does not require any $25$ annexture, then by sheer logic and reason, the Applicant cannot attach any. A contrary result, that would necessitate the courts to insist on the impossible or the quixotic, cannot be countenanced by this Court. To do so would be to enslave justice to grammar. In this regard, this Court agrees entirely with the force of LORD $\mathcal{S}$ NORMAND's holding in Esso Petroleum Co. Ltd v. South Port Corpn. (1956) AC 218, where the learned judge explained succinctly that:

"The function of pleadings is to give fair notice of the case .which has to be met so that the opposing party may direct his /evidence to the issues disclosed by them. To condemn a party on"a ground on which no fair notice has been given may be as great a denial of justice as to condemn him on a ground of which his evidence had been improperly excluded." 5~

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not. In the instant application, no evidence is to be adduced by the Applicant for purposes of prosecuting his case. On the contrary, it is the Applicant who seeks fair notice and due elaboration of the Respondent's evidence. In this connection, Court is also mindful of the intention and philosophy <sup>j</sup> underlying the amended 0.6 [p of the CPR - which is to avoid surprise! in Court; as the object of pleadings is to bring the parties to a clear issue and to delimit . the same so that both parties know beforehand the real issues for determination at the trial. Moreover, Court is also mindful of the : fact that 0.6,r,l(b) flows from an amendment of 0.6 of the then *(* existing Rules. 0.48 was not similarly amended. If the legislature had intended similar procedures and consequences to attach to instances falling under 0.6 as those falling under 0.48, both rules would have been amended in similar fashion. They wese

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(supra).'.. '

Fourth, the holding that was recently pronounced by NTABGOBA,PJ, in 2-C Kenfreight (U) Ltd v. Sebunya, Misc. Applicn. No.353/98 arising from HCCS No.988/98 - as yet unreported - (in which Court upheld the requirements for attachment of annextures under amended 0.6) was grounded on an application to set aside an ex parte judgment under 0.9, rr.9 & 24 of the CPR. It is in their very nature and 9^ essence that applications to set aside the court's priox~ judgment ' do require the adducing of a wealth of evidence, documents., authorities, and witnesses, in order to prove the Applicant's case to set aside the earlier judgment. The instant application requires absolutely no annextures - and is, therefore, wholly distinguishable from the application in the Kenfreight case

In the result, this Court rejects the arguments pressed by learned Counsel for the Respondents in his objection to this application; and grants the Applicant's prayer, under 0.48, r.3 of the CPR, for better and further particulars to be supplied by the Defendants/Respondents within fourteen days from today. Given the $\frac{1}{2}$ importance and the novelty of the issues involved in the arguments of both Counsel, each party shall bear their own costs for this application.

Ordered accordingly.

$\langle f_{\rm s} \rangle$

James Ogoola

**JUDGE** $01/06/99$

DELIVERED IN OPEN COURT, BEFORE:

Stephen Sserwadda, Esq - Counsel for Applicant

Richard Mwebembeze, Esq - holding brief for Babigumira, Esq Counsel for Respondents.

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Mr. Mugerwa - Court Clerk.

James Ogoola **JUDGE** $01/06/99$

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### THE REFUBLIC OF UGLIDA

### IN THE HIGH COURT OF USINDA AT KAMPALA

# HISC. APPLICATION NO. 147 OF 1999 (Arising from Civil Suit No. 30 of 1999)

SULE PHARMACY LTD. **HILLICANT/PLAINTIES** APPEICANT/PLAINTIES **VERSUS** THE REGISTERED TRUSTEES OF THE } RESPONDENT/SETENDANT $: : :$ KHOJA CHIA ITHNA SHARI JAMAT }

## ORDER

This application coming this 1st day of June 1999 for final disposal before His Lordship Honourable Mr. Justice J. Oarola in the presence of Stephen Sserwadda, Esq., Counsel for the Applicant and Richard Mwebembezi, Esq., holding brief for Mr. Blunc<br>Babigumira, Counsel for the Respondents, AND UPON Blaze Enligandra having raised a preliminary point of law that the application is incompetent.

IT IS HEREBY ORDERED that:

$1.$ The objection be and is hereby dismissed.

$2.$ The application be and is hereby allowed.

$3.$ The respondents/defendants to fullnish further and lotter particulars of paragraph one of their Written Statement of Defence to the Plaintiff within 14 days from the date of the ruling.

Each party to bear its costs. $4.$

Extracted by M/S Babigumina & Co. Advocates this 4th day of Three 1999.

**WE APPROVE:** APPLICANT **NOR THE** COURSEL.

GIVEN under my hand and Seal of the Court this ist day of them 1999.