Tororo Cement Company Limited v Frokina International Limited (Civil Appeal No. 21 of 2000) [2001] UGCA 60 (12 January 2001)

#### THE REPUBLIC OF UGANDA

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

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

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

#### **VERSUS**

#### FROKINA INTERNATIONAL LIMITED :::::::::::::::;; **RESPONDENT**

#### HON. JUSTICE C. M. KATO, JA CORAM: 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 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.

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 11 (a) of the Civil Procedure Rules as it failed to disclose a cause of action and prayed court to reject it.

The learned judge overruled the objection. Hence this appeal.

The memorandum of appeal comprises two grounds namely:

- $"1.$ The learned judge erred in law by holding that the plaint disclosed a cause of action. - $2.$ The learned judge erred in law by failing to appreciate that once negligence was pleaded then the particulars of the alleged negligence had to be set out in the pleadings."

Both counsel filed in written submissions under Rule 97 of the rules of this court.

Regarding ground one, Mr. Lumweno for the appellant submitted 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 of the plaint indicated 20 that the defendant's truck rammed the plaintiff's premises extensively damaging its walls and doors and that this clearly indicated that the plaintiff's enjoyment of property rights was violated by the defendant's act of damaging the same property. That was sufficient information.

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The learned judge ruled:

"Paragraph 4 shows that the plaintiff's premises had through the negligence of the defendant been extensively destroyed".

Order 7 rule 11 (a) of the Civil Procedure Rules provides that the plaint shall be rejected.

" (a) where it does not disclose a cause of action."

It has been said that the word "disclose" is not a term of art. It has no technical connotation. It simply means "expose, make known or reveal to knowledge"

It is well established that a plaint may disclose a cause of action even though it omits some fact which the rules require it to contain and which must be pleaded before the plaintiff can succeed in the suit. It has also further been held that what is important in considering whether a cause of action is revealed by the pleadings is the question as to what right has been violated -Cotter vs Attorney General for Kenya (1938) 5 E. A. C. A. 18. Three guidelines have been established in this regard:

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the plaint must show that the plaintiff enjoyed a right. $(a)$

- that the right has been violated and $(b)$ - that the defendant is liable. $(c)$

# See Auto Garage vs Motokov (No.3) (1971) EA.514

If all the three elements are present, then a cause of action is disclosed and any defect or omission can be put right by amendment. The judge has a discretion to allow such amendment. However, if any element is missing then no cause of action is established and no amendment will be allowed, the

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underlying principle being that where tlre plaint is a nullity, no auretrdnrent can rcdeenr it, wtrereas a ntere delbct or an inegulality nlav be curable by alrendrnent where the ends of justice so dernand, rvltcre a catrse of action is otherwise disclosed.

Turning to the plaint before court, (he rnost relevant paragraphs are 4,5 and 7. They state as follows:

- ' u4. On 18.8.99 the dcfendant's truck and its trailer rummed into the Plaintifl's premiscs on plot I\'I.587' l0 Nakivubo vierv and cxtcnsivcly destroyed its doors and rvalls. - 5. Thc accident rvas caused by the ncgligcncc of the Defcndant's driver for rvhich thc Defendant is vicariously liablc. - 7. As a result of thc said accidcnt thc Plaintiff has suffcrcd gcneral damagcs of rvhich thc Dcfendant is liable to rvith loss of rcntal income."

With the above guidelines irt rnind, it is the respondetlt's right of property which was viotated when the truck allegedly belonging to thc appellarlts run into thern, extensively darnaging its rvalls and doors and thereby catrsing 20 financial loss to the respondent.

It is important to note that a cause of action lllearls every fact which is material to be proved to enable the plaintiff to succeed or every fact which if denied, the plaintiff tnttst prove in order to obtain judgernent. Cooke v Gull LR.8 E. P. n.t16: Read Vs Brorvn 22 O. B. D. p.13l. The respondent will have to prove that the prernises were ltis properly and that it is the appellant's truck that rammed into it darnaging it, as a resttlt of which he sustained

financial loss and furdrer tlut lre was not in any responsible for contributory neg{igence in this resPect.

The tluee eletnents set out in Motokov (IIo.3) (Supra) are present in the 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 merit and is accordingly dismissed'

( ro Regarding ground No.2 that the learned judge ened in law by failing to appreciate that once negligence was pleaded then tlre particulars of tlrc alleged negligence had to b€ set out in the pleadings' Mr' Lumweno argued tlratneitlrerweretlreparticularsoftlreallegednegligencespecifiedundera definite heading nor were they reflected in any other form elsewhere in the respondent's pleadings. Tl.rey rvere not pleaded'

> W. Zlja submitted that each case depended on its own facts and or circumstances and that the judge had a discretion in the matter'

<sup>20</sup> The learned judge, ruling on this point, said: "With respect that is a matter that shoutd be visited on the occasion of hearing of evidence'"

Order6 rules l,2and3 Provide:

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ll I Every pleading shatl contain' and contain only' a statement in a concise form of the material facts on rvhich the parfy pteading relies for claim or defence, as the case may bq but

not cvide(rcc by uthictr they are to be proved, and shall, rvhere nc.cessa ry be divided into paragraphs numbered consecutively. Datcs, sums, and numbers shall be exp ressed in figures.

2. [n all cascs in rvhich the parfy pleading relies on any misrepresentation fraud. . ., and in all other cases in rvhich par(iculars may be necessary, 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 further and bctter particulars of any matter stated in any pleading, may in all cases be ordered upon such terms as to consist and othcru,ise as may be just."

The effect of the rule requiring particulars to be given is for reasons of practice, justice and convenience. A party should tell his opponent what 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 and skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect, the plaintiff without contributory negligence on his own part, has suffered injury to his person or property . Heaven Vs Pender. (1883) I1 08D.. at 507.

Particulars of negligence must therefore be given in the pleading showing in what respects the defendant was neg{igent. 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 tlrc p{aintiff complains and lastly

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particulars of the damage sustained. Nurdin Ali Devi i and Others Vs Meehii Co and Others (19s3) EACA I32. I have dealt with this under ground one above.

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

As rightly pointed out by the leamed trial judge, each case depends on its own facts. Suflicient infonnation was disclosed. This was a fairly simple case

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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 fr.rrther and better particulars although I am inclined to think that it would be a frivolous application, considering the circurnstances of this case. I should also point out that the objection to the plaint on ground oflack ofparticulars rnust only be raised where the fault is apparent on the face ofthe pleading and the fault must be something more than a rnere imperfection,

omission or defect in forrn. There must be an inherent defect in the plaint. ( Zo See Murdi Ali Devii and Othcrs (Sunra). Mr. Lumweno is attacking the form in which the particulars u,ere given, which attack is unsustainable. A cause of action was disclosed with sufficient particulars of negligence I would dismiss this appeal with costs

Datedthis :......1.yk ......... Day of ... JUSTICE A. E. I{PAGI-BAHIGEINE, Justice of Anoeal. 200 r <sup>U</sup>^"^-q /"

# THB REPUBLIC OF UGANDA TN THA COURT OF APPEAL OF UGANDA AT KAI\{PALA CIVIL APPEAL NO.21 OF 2OOO

TOROROCEMENTCOMPANYLTD.:::::::::::::::::APPELLANT VERSUS

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

## CORAIT{: HON. JUJSTICE C. M' KATO' JA' HON. JUSTICE A. E. MPAGI. BAHTGEINE, JA. HON. JUSTICE C. N. B. KITUIUBA, JA.

### JUDGI\{ ENT OF C. M. KATO. JA.

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I have had the advantage of reading the judgment of rny Lord Mpagi-Bahigeine JA. in draft. I agee rvith it and lrcr proposed order' The learnedtrialJudge(Mugarnba. Ag. J.)correctlyfoundtlrattlteplaint disclosed a cause of action against the appellanUdefendant. In case the appellant felt that the plaint was lacking in some particulars its (appellant's) remedy lay in the provisions of Order 6 rute 3 of Civil Procedure rules which reads as follows:

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

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

Dated at Kampala this 12 dr. day of Farmay 2001.

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$C. M. Kato$ JUSTICE OF APPEAL

## 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.

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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 day of Januar y 2001.

N B Kitumba JUSTICE OF APPEAL