Tororo Cement Company Limited v Frokina International Limited (Civil Appeal 21 of 2000) [2001] UGCA 28 (12 January 2001)

#### THE REPUBLIC OF UGANDA

#### CERTIFIED TRUE COPY OF THE ORIGINAL All/Endanger Revistrar of the Court of appeal Uganda

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

#### CIVIL APPEAL NO.21 OF 2000.

#### TORORO CEMENT COMPANY LIMITED ::::::::::::::: APPELLANT

#### **VERSUS**

FROKINA INTERNATIONAL LIMITED ::::::::::::::::: RESPONDENT

#### CORAM: HON. JUSTICE C. M. KATO, JA HON. JUSTICE A. E. MPAGI-BAHIGEINE, JA. HON. JUSTICE C. N. B. KITUMBA, JA.

### JUDGEMENT OF JUSTICE A. E. MPAGI-BAHIGEINE, JA.

This is an appeal from an interlocutory ruling of the High Court, at Kampala (Mugamba J) in H. C. C. S No.1215 of 1999, overruling a preliminary point of 20 objection to the plaint that it did not disclose a cause of action.

By a plaint dated 15.10.99, the respondent Frokina International Limited, sued the appellant, Tororo Cement Company Limited, in negligence; seeking a liquidated sum of Shs.6,248,738=, being the estimated cost of repairs arising from the damage caused to the respondent's premises, when the appellant's truck rammed it, extensively damaging its walls and doors.

The respondent also sought general damages and costs of the suit.

The appellant, by its written statement of defence denied the respondent's claims.

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At the commencement of the hearing, counsel for the appellant/defendant raised a preliminary point of objection to the plaint that it offended Order 7

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rule I I (a) of the Civil Procedure Rules as it failed to disclose a cause of action and prayed courl to reject it.

The learned judge overruled the objection Hence this appeal.

The rnertrorandurn of appeal cornprises trvo grounds nanrely:

- "1. Thc learned judge crred in larv by holding that the plaint discloscd a cause of action. - 2. The learned judge crred in larv by failing to appreciate that once negligence was pleaded then thc particulars of the allegcd ncgligence had to be set out in the pleadings."

Both counsel filed in written subrnissions under Rule 97 of the rules of this couft.

Regarding ground one, Mr. Lunru,eno for tlre appellant subrnitted that the plaint did not disclose a cause of action since it failed to give particulars of negligence.

For the respondent it was contended that paragraph 4 ofthe plaint indicated that the defendant's truck rarnmed the plaintiffs premises extensively darnaging its walls and doors and that this clearly indicated that the plaintiffs enjoyrnent of prope(y rights was violated by the defendant's act of damaging the same property. That was sufficient infonnation. 20

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The learned judge ruled:

"Paragraph 4 shou's that the plain(iffs premises had through the negligcncc of the dcfendant been extensivcly dcstroved ""

Order 7 rule I I (a) of thc Civil Procedure Rules provides that the plaint slrall be rejected.

" (a) rvhere it does not disclose a cause ofaction."

It has been said that the word "disclose" is not a terrn of art. It l'ras no teclrnical connotation. It sirnply rneans " expose, rnake known or reveal to knowledge"

It is well established that a plaint nray disclose a cause of action even though it omits sorne lact u,hich the rr,rles require il to contain and rvhich nrust be pleaded before the plaintilfcan succeed in the suit. It has also hrrlher been held that u,hat is impoflarlt in considering u4rether a cause of action is revealed by the pleadings is the question as to what right has been violated - Cetter vs Attornev General for Kenya (1938) 5 E. A. C. A. 18. Three

guidelines have been established in this regard:

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- (a) the plaint must shou,that the plaintiff enjoyed a right. - (b) that tlre right has been violated and - (c) that the defendant is liable.

### See Auto Garage rs IVJstat(qv (NsJ) (197I) EA.s14

If all the tluee elements are present, then a cause of action is disclosed and any defect or ornission can be pul right by amendment. The judge has <sup>a</sup> discretion to allow such arnendnrent. However, if any elernent is missing then no cause of action is established and no aureudrnent will be allowed, the underlying principle being that where the plaint is a nullity, no alnendment can redeem it, rvhereas a lnere defect or an irregularity rnay be curable by arnendrnent rvhere tlre ends of justice so dernand, where a cause of action is otherwise disclosed.

Turuing to the plaint before court, the rnost relevant paragaphs are 4,5 and 7. They state as follows:

- "4. On 18.8.99 the defendant's truck and its trailer rummed into the Plaintiffs premises on plot M.587, Nakivubo vierv and extensivcly destroyed its doors and rvalls, - 5. The accident rvas caused by thc negligcnce of the Defcndant's driver for rvhich the Defendant is vicariously liable. - 7. As a rrcsult of thc said accidcnt the Plaintiff has suffered general damages of rvhich the Defendant is liable to rvith loss of rental income."

With the above guideliiles in mind, it is the respondent's right of property which was violated when the truck allegedly belonging to the appellants run into thern, extensively darnaging its walls and doors and thereby causing financial loss to the respondent.

It is irnportant to note that a cause of action rneans every fact which is material to be proved to enable the plaintiff to succeed or every fact which if denied, the plaintiff nlust prove in order to obtain judgement. Cooke v Gull LR. 8 E. P. n.l16: Read \/s Brorvn 22 Q. B. D. p.l3l. The respondent will have to prove that the prernises rvere his property and that it is the appellant's truck that rammed into it darnaging it, as a result of which he sustained

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financial loss and further that he was not in any responsible for contributory negligence in this respect.

The tlree elernents set out in Motokov (No.3) (Supra) are present in tlre plaint, the subject ofthis appeal.

There is therefore no doubt that a clear cause of action is disclosed by the plaint.

This ground of appeal lacks rneril and is accordingly dismissed.

Regarding ground No.2 that lhe learned judge ered in lav', by failing to appreciate that once negligence was pleaded then the particulars of the alleged negligence had to be set out in the pleadings, Mr. Lumweno argued tlrat neitlrer were the particulars of the alleged uegligence specified under <sup>a</sup> definite heading nor \vere they reflected in any other forrn elservhere in the respondent's pleadings" They were not pleaded. r0

Mr. Zijja subrnitted that each case depended on its own facts and or circurnstances and that thejudge lrad a discretion in the matter.

The learned judge, ruling on this point, said: 20

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"With respect that is a nratter that should be visited on the occasion of hearing ofevidence."

Order 6 rules l, 2 and 3 provide:

" 1. Every pleading shall contain, and con(ain only, a statement in a concise form of the material facts on rvhich the parfy pleading relies for claim or defence, as the case may be' but

not evidence by rvhich they are to be proved, and shall, rvhere necessarl, bc divided into paragraphs numbered consecutively. Datcs, sums, and numbers shall bc expressed in figu res.

- 2. In all cases in rvhich the party pleading relies on any misrqrrescntation fraud. r ., and in all other cases in rvhich pa rticula rs may be necessa ry, such particulars rvith dates shall be stated in the pleadings. - 3. A further and better statement of the nature of the claim or defence or furthcr and bctter particulars of any matter stated in any pleading, may in all cases tre ordered upon such terms as to consist and otherwise as may be just,"

The effect of the rule requiring particulars to be given is for reasons of practice, justice and convenience. A parly should tell his opponent u4rat he is corning to court to prove-

The appellant was sued in negligence. Actionable negligence consists in the neglect of the use of ordinary care aud skill towards a person to whorn the defendant owes the duty of observiug ordinary care and skill, by which neglect, the plaintiff without contributory negligence on his own part, has suffered injury to his person or property Heavcn Vs Pender. (1883) lI OBD., at 507.

Pa(iculars of negligence rnust therefore be given in the pleading slrowing in what respects the defendant was negligent. The plaint ought to state facts, upon which the supposed duty to the plaintiff is founded, and whose breach the defendant is charged with. Then should follow an allegation of the precise breach of that duty of which the plaintiff cornplains and lastly

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particulars of the damage sustained. Nurdin Ali Deviji and Others Vs Meghji Co and Others (1953) EACA 132. I have dealt with this under ground one above.

I have already pointed out above under ground one of appeal, that paragraphs 4, 5 and 7 together give sufficient particulars of negligence and damage suffered. It is not always necessary to tabulate them, as suggested by Mr. Lumweno. This would be a mere matter of form not a sufficient ground for rejection of a plaint.

As rightly pointed out by the learned trial judge, each case depends on its own facts. Sufficient information was disclosed. This was a fairly simple case.

Once a cause of action is disclosed as is the case with this plaint, the appellant could invoke Order 6 rule 3 and apply for further and better particulars although I am inclined to think that it would be a frivolous application, considering the circumstances of this case. I should also point out that the objection to the plaint on ground of lack of particulars must only be raised where the fault is apparent on the face of the pleading and the fault must be something more than a mere imperfection.

omission or defect in form. There must be an inherent defect in the plaint.

20 See Murdi Ali Devji and Others (Supra). Mr. Lumweno is attacking the form in which the particulars were given, which attack is unsustainable. A cause of action was disclosed with sufficient particulars of negligence.

I would dismiss this appeal with costs. The costs.<br>..... Day of <u>Jamary</u>... Dated this $\frac{1}{2}$ $\mathbb{R}$ **JUSTICE A. E. MPAGI-BAHIGEINE** Justice of Appeal.

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## THB REPUBLIC OF UGANDA

# IN TI{E COURT OF APPEAL OF UGANDA AT KAI\,TPALA CIVIL APPEAL NO.2I OF 2OOO

TORORO CEI\{ENT COI\'IPANY LTD VERSUS APPELLANI-

FROKINA INTERNATIONAL LII\{ITED ::::::::::::RESPONDENT

## CORAI\'I: HON. JUJSTICE C. M. KATO, JA. I{ON. JUSTICB A. E. N{PAGI-BAHIGEINE, JA. I{ON. JUSTICE C. N. B. KITUI\{BA, JA.

### JUDGl\,IENT OF C. I\,{. KATO JA.

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I have had the advantage of reading the judgment of rny Lord Mpagi-Bahigeine JA. in draft. I agree with it and her proposed order. The learned trial Judge ( Mugaurba. Ag. J.) conectly found that the plaint disclosed a cause of action against the appellant/defendant. In case the appellant felt that the plaint was lacking in sorne particulars its (appellant's) remedy lay in the provisions of Order 6 rule 3 of Civil Procedure rules which reads as follows:

"3. A further and better statement of the nature of the claim or dcfence, or further and better particulars of any matter stated in any pleading, may in all cases be ordered upon such terms as to costs and othenvise as may be just."

As Kitumba JA. also agrees, this appeal cannot succeed. It is accordingly dismissed with costs to the respondent.

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

C. M. Kato JUSTICE OF APPEAL

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## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPEAL NO. 21 OF 2000

## TORORO CEMENT COMPANY :::::::::::::::::::::::::::::::::::: **VERSUS** FROKINA INTERNATIONAL LIMITED :::::::::::: RESPONDENT

## CORAM: HON. JUSTICE C. M. KATO, JA. HON. JUSTICE A. E. MPAGI-BAHIGEINE, JA. HON. JUSTICE C. N. B. KITUMBA, JA.

### JUDGMENT OF C. N. B. KITUMBA, JA.

I have had the benefit of reading the judgment of Mpagi-Bahigeine, JA. and agree with her that the appeal should be dismissed.

Dated at Kampala this 12<sup>th</sup> day of Januar 92001.

JUSTICE OF APPEAL

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