Black’s Law Dictionary, Eighth Edition refers to it as “1. The body of law - usu. Rules enacted by the legislature or courts- governing the methods and practices used in civil litigation. 2. A particular method or practice used in carrying on civil litigation”.
"Procedure" is to be distinguished from
"substantive law" in that substantive law defines the rights and
duties of everyday conduct. Substantive law includes contract law, tort law,
constitutional law, Land law and the Law of sale of goods among others.
A procedural system provides the mechanism for
applying substantive law to real disputes. A good procedural system should
provide guidelines as to what information is received by the judge or jury, how
that information is to be presented, and by what standards of proof
("beyond a reasonable doubt," "by clear and convincing
evidence," "by a preponderance of the evidence") the information
will be adjudged. A good procedural system ensures that similar cases will be
treated similarly by the courts.
In his work, Scotch Reform (1808), Jeremy
Bentham presented a utilitarian notion of Civil Procedure as the need “To
Supply Justice to all at least Expense”. Basing on his utilitarian approach
which largely clouded his adjectival writings, Bentham classifies the ends of
procedure into direct and collateral ends.
Bentham explains the direct ends as 'giving execution and
effect to the predictions delivered, to the engagements taken, by the other
branch, the main or substantive
branch of the law: viz. by decisions pronounced in conformity to it.' He views
the 'collateral' ends as 'prevention of delay, vexation and expense, in so far
as superfluous or preponderant'. He
therefore views the overarching end of procedure as the prevention of
misdecision or a failure of justice.
Halsbury’s Laws of England, (2009) Volume 11, 5th
Edition in paragraph 1(1), it is stated that;
“Although
civil procedure has been categorised as procedural rather than substantive law,
it affects all other branches of the law except criminal law and criminal
procedure, for rights under the law may need to be enforced, and a remedy
requires procedure. It is of great antiquity in its origins but has been
periodically overhauled, sometimes radically, to meet current needs, most
recently by the Civil Procedure Rules. Civil procedural law governs the
practice and procedure in the courts and regulates the administration of civil
justice. It may be regarded as consisting of three parts, not to be viewed as
self-contained compartments but as interrelated with, and overlapping and
interacting upon, each other, namely the institutional part, the professional part
and the procedural part. Notwithstanding its apparent complexity and its
occasional technicality, civil procedural law forms an indispensable part of
the machinery of justice and operates as
an essential tool for enforcing legal rights and claims, for redressing or
preventing legal wrongs, for asserting legal defences, and for such other
ancillary purposes as the recognition of personal status, the adjustment of
proprietary interests in the case of insolvencies, the administration of
estates and of trust property and the like, and for the supervision and control
of inferior courts, tribunals and other judicial decision-making bodies. In
short, civil procedural law is a necessary legal and social instrument for the
attainment of what Lord Brougham called 'justice between man and man'.” (See 2 Speeches of Henry, Lord Brougham (1838) 324.
Henry Brougham used this seminal phrase in his celebrated speech in the House
of Commons on 7 February 1828. It was no exaggeration for Sir Maurice Amos to
claim that 'Procedure lies at the heart of the law': see Sir Maurice Amos's 'A
Day in Court at Home and Abroad' (1926) Cambridge Law Journal 340. Cf the
dictum of the Committee on Supreme Court Practice and Procedure
('the Evershed Committee') in its Final Report
(1953) (Cmd 8878) para 1, 'the shape and development of the substantive law of
England have always been, and, we think, always will be, strongly influenced by
matters of procedure', citing the celebrated aphorism of Sir Henry Maine that
'substantive law has at first the look of being gradually secreted in the
interstices of procedure'.)
In
the context of 'civil procedural law', 'civil' is used in contradistinction to
'criminal. The need for this division arises largely from the fact that,
broadly speaking, the primary objective of civil procedure is remedial, to make
good civil wrongs by compensation, restitution or satisfaction and, if
necessary, by restraint by appropriate relief, whereas the primary objective of
criminal procedure is penal or punitive. (When
criminal procedure imposes a fine, the effect is to make the accused suffer
economic detriment. In cases where it provides for compensation, that is merely an order related to the
sentence).
Procedure
has two basic branches: - The Law of evidence and the Law of procedure. Evidence deals with proof of facts while
procedure regulates steps to be taken by parties during litigation from the
time the plaintiff commences proceedings to the time when, if successful,
wishes to enforce the judgment he or she obtains against the defendant. These steps include commencement of
proceedings, issue and service of court process or documents, trial and other
applications. It also includes giving of
judgment and enforcement of the same, costs, appeals, review and revision.
Procedure
also includes non litigious methods of resolving disputes (Alternative Dispute
Resolution or ADR) which inter alia include negotiation, arbitration and
reconciliation.
Procedural
rules must also be in conformity with rules of natural justice by which each
party is allowed to present his/her arguments before a judgment is given.
Article
28(1) of the Constitution provides that:
“In
the determination of civil rights and obligations or any criminal charge, a
person shall be entitled to a fair, speedy and public hearing before an
independent and impartial court or tribunal established by law.”
Although
the many suits filed in Uganda may be settled before trial through negotiated
settlements or arbitration, "civil procedure" strictly defined applies only in formal courts of law.
The Nature of Civil Procedural Rules
The
rules of Civil Procedure are designed to formulate the issues that the court
has to determine and to give fair notice thereof to the parties. See: Bhag
Bari v Mehdi Khan [1956] EA 94 (CA-K) at P. 104.
Procedural
rules are intended to serve as handmaidens of justice and not to defeat
it. See: Iron Steel Waters Ltd v C.W.
Matyr & Co. Ltd (1956) 23 E.A.C.A 175(CA-U). Collins MR in Re Coles and Ravenshear's Arbitration [1907]
1 KB 1 at 4, CA observed that:
'Although
I agree that a court cannot conduct its business without a code of procedure, I
think that the relation of rules of practice to the work of justice is intended
to be that of handmaid rather than mistress, and the court ought not to be so
far bound and held by rules, which after all are only intended as general rules
of procedure, as to be compelled to do what will cause injustice in the
particular case'.
This
concept is echoed in Art. 126(2)(e) of the Constitution which has had several
judicial pronouncements.
Objectives of civil procedural law
Civil
procedural law fulfils many legal and social functions, and its objectives have
changed over time. In the present day, the function of the court is not only to
decide individual cases but also to ensure that the civil justice system, which
is a public service, delivers a satisfactory service which meets public
expectations and needs.
The
civil process is no less a law enforcement process than the criminal process.
The civil process is not only for the resolution of individual disputes but
also for the protection of rights, for the enforcement of rights, and for
remedying breaches.
Civil
procedural law has been categorised according to the character which it assumes
as the indispensable instrument for the attainment of justice, namely (1) its
complementary character; (2) its protective character; and (3) its remedial or
practical character.
In
its complementary character, civil procedural law is ordinarily contrasted with
substantive law. Substantive law creates rights and obligations and determines
the ends of justice embodied in the law, whereas procedural law is an adjunct
or an accessory to substantive law. But this does not mean that civil
procedural law should be regarded as secondary. The two branches are
complementary and interdependent, and the interplay between them often conceals
what is substantive and what is procedural. It is by procedure that the law is
put into motion, and it is procedural law which puts life into the substantive
law, gives it its remedy and effectiveness and brings it into being.
In
its protective character, civil procedural law represents the orderly, regular
and public functioning of the legal machinery and the operation of the due
process of law. In this sense, the protective character of procedural law has the effect of sustaining and
safeguarding every person in his life, liberty, reputation, livelihood and
property and ensuring that he does not suffer any deprivation of his rights
except in accordance with the accepted rules of procedure. (Civil procedure will provide for the methods
of proof – for instance “evidence of publishing” in defamation cases, set time lines for
particular actions and provide means of safeguarding property through
restoration or freezing activity on property – e.g. injunctions, garnishee
proceedings, eviction orders or vacant possession)
In
its remedial or practical character, civil procedural law deals with the means
by which persons can obtain through the litigation process protection from
future wrongs, remedies for wrongs suffered, and a resolution of disputes; in
this sense it deals with the actual
litigation process.
What
the practitioners seek for their clients when they resort to the courts is to
use the machinery of justice to obtain a just result, and what the clients seek
in addition to justice is to avoid unnecessary expense and delay and excessive
technicality in the process of attaining that just result.
The
Civil Procedure Rules have entrusted the control of litigation to the court,
giving the court a wider discretion than before to determine the best way of
resolving disputes, under the overriding objective of enabling it to deal with
cases justly and enabling it to save expense and time wherever possible.
SOURCES OF CIVIL PROCEDURAL LAW
The
sources of civil procedural law are several and disparate, although together
they contribute to make up the general body of law and practice. They include:
(1)
The
Constitution
(2)
statute law;
(3) rules of court;
(4) practice directions;
(5) judicial precedent;
(6) prescribed and practice forms;
(7) the inherent jurisdiction of the
court;
(8) the practice of the court; and
(9) books on practice and procedure.
These
sources differ in origin, authority and weight, but must nevertheless be taken
and treated as an entire and integral whole, providing a
complete and comprehensive account or description of the system for the
administration of civil justice.
ORGANIZATION AND HIERARCHY OF COURTS
The
Ugandan judicial system refers to the court structures which range from the
Local Council courts to the Supreme Court.
Under Article 126 of the Constitution all courts in Uganda derive their
Judicial power from the people, and this power shall be exercised by the courts
established under the constitution in the name of the people and in conformity
with the law and with the values, norms and aspirations of the people.
The
Constitution further provides in article 129(1) for establishment of courts of
judicature which shall consist of: -
a)
The
Supreme Court.
b)
The
court of Appeal
c)
The
High Court.
d)
Such
subordinate courts as parliament may by law establish, including quardir
courts.
Under
the category of subordinate courts, we have the following courts established
under the M.C.A. cap 16.
a)
The
Chief Magistrate.
b)
Magistrate
Grade I
c)
Magistrate
Grade II
In
addition we also have L.C. Courts established under the Local Council Courts
Act, 2006.
It
is important to note that there are certain courts in form of tribunals which
are outside the normal hierarchy of courts of law which are given civil jurisdiction
over several matters for example:
(i)
Tax
Appeals tribunals.
(ii)
Industrial
Court.
(iii)
Utilities,
Wildlife and Standards Court
It
should further be noted that the legislation creating or establishing a
specific court, will normally give the procedure to be followed and the
jurisdiction which may be covered by that court.
The
jurisdiction of the courts established under the constitution is specified
there under and also under the Judicature Act.
COMMENCEMENT OF PROCEEDINGS
Preliminary Considerations
Where
negotiations fail, the aggrieved party may commence proceedings against the
other person or party. It is always advisable that serious thought is taken of
the consequences of instituting a case. Civil proceedings in Uganda are
normally lengthy because of inefficiency and bureaucracies involved in the
judicial system. Litigation is also notoriously expensive and can cause
considerable financial embarrassment to the party ordered to pay costs of the
suit. As a result of this courts have
insisted that the parties explore possible avenues for having the matter settled
amicably before full litigation can start.
It
is normally advisable that a party should demand from the prospective defendant
to stop the breach or put right the wrong which has been committed. In practice this is done through a demand
letter which also serves as a notice of intention to sue.
Failure
to serve a notice of intention to sue may disentitle an advocate to costs and
its importance cannot be over emphasized. (See Rule 39 of the Advocates
(Remuneration and Taxation of Costs) Rules SI 267-4). It states that:
“If the plaintiff in any action has not given
the defendant notice of his or her intention to sue, and the defendant pays the
amount claimed or found due at or before the first hearing, no advocate’s costs
shall be allowed except on an order of the judge or magistrate.”
The
service of notice of intention to sue must be covered in the plaint by
including a paragraph to the effect that it was duly communicated.
When
commencing proceedings, decisions have to be made about which appropriate court
and type of procedure to use. Care
though has to be given to the following issues: -
- Whether there is a triable issue i.e. whether the wrong
for which the plaintiff intends to sue is one for which substantive law
provides a remedy.
- Which court has jurisdiction in the matter, including
where the cause of action arose.
- The prospective plaintiff must also ensure that he has locus
standi and that the intended defendant is a proper defendant to
the action.
- The litigant has also to decide who should be named in
the proceedings and precisely what claims should be made against each of
them.
In
addition, the prospective plaintiff must ensure that the action is brought in
time and that it is not premature. This is because the Limitation Act
prescribes the period within which certain actions must be taken to a court of
law.
Section
19 of the Civil Procedure Act, Cap. 71 provides that:
“Every suit shall be instituted in
such manner as may be prescribed by rules.”
The
civil Procedure Rules provide for the following methods of commencement of
proceedings:
a)
Plaint
(Ordinary Suits)
b)
Originating
summons
c)
Petition
d)
Notice
of motion.*
e)
Chamber
summons*
See:
General Parts Ltd v NPART, SCCA No. 9 of 2005; [2006] 2 EA 57 (SCU)* - It
was trite that in civil matters, the only modes of instituting suits were by
plaint, originating summons and petition. A Notice of Motion was not an
alternative mode of instituting any type of suit.
PLAINT
IN AN ORDINARY SUIT
This
is the usual method of commencement of proceedings where there is a substantial
dispute as to facts. It is preferable
that the person institutes an ordinary suit which is normally by way of
plaint. The procedure is provided for
under Order 4 of the Civil Procedure Rules.
The suit is instituted by way of plaint which must comply with the rules
contained in Orders 6 and 7 of the CPR so far as applicable. The main feature of the ordinary suit is the
exchange between the parties of written pleadings as a result of which they
join issue upon questions of fact.
This
procedure differs from that under Order 36 which deals with summary procedure
and is commenced by a specially endorsed plaint. Under summary procedure, there is usually no
substantial dispute as to the facts in issue.
ORIGINATING SUMMONS
Under
this procedure, a string of questions are usually presented to the court for
determination. The main advantage of originating summons is that the proceeding
is usually more speedy than an action by
way of plaint. Under such a proceeding,
there are no pleadings and usually no witnesses. Evidence is given by way of affidavit and
normally there are no interlocutory applications such as discovery.
Under
O.34 CPR (which deals with interpleader proceedings) for example, originating
summons procedure is most suitable where there is no substantial dispute on the
facts and there is only a disagreement as to the legal consequences arising
from the undisputed facts. See: Order
37 CPR; Nakabugo v Francis Drake Serunjoji[1981] HCB 58,59; Spry:
Pages 265-269.
The
body of the originating summons must be drafted clearly and objectively in
order to achieve its purpose. In
particular it must define the issues and include a statement of the questions
on which a plaintiff seeks a determination for the directions of the court and he
or she must also include a concise statement of the relief or remedy claimed
with sufficient particulars to identify the cause or causes of action.
PETITION
Legislation,
a statutory instrument or rules may prescribe that proceedings be commenced by
way of petition. The most common types of petitions are those related to
company matters provided under the Companies Act and 0.38 CPR. Also matrimonial
proceedings under the Divorce Act, succession matters under the Succession Act,
election challenges as provided under the legislations that regulate elections
and Constitutional grievances do adopt this procedure.
NOTICE OF MOTION AND CHAMBER SUMMONS
This
procedure generally relates to interlocutory applications. Whereas this is
absolutely true for Chamber summons, there are certain instances where a civil
process is commenced by a Notice of Motion. For instance under rule 6 of the
Judicature (Judicial Review) Rules No. 11 of 2009, applications for judicial
review are commenced by Notice of Motion. Similarly, under rule 3 of the
Judicature (Fundamental Rights and Freedoms) (Enforcement Procedure) Rules No.
55 of 2008, every application is to be made by Notice of Motion.
Under
0.52 r1 CPR all applications to court save where otherwise expressly provided
for in the Civil Procedure Rules shall be by motion and shall be heard in open court.
Generally,
applications may be made by this method include:
-
Applications
for judicial review
-
Application
for Habeas corpus
-
For
the redress of breach of fundamental Human Rights under the constitution.
There
general rule is generally that where
a statute or legislation provides for an application to be made to court but
does not specify the form in which it is to be made and the rules do not
expressly provide for any special procedure, the application may usually be
made by notice of motion (Order 52 rule 1 CPR).
There
are conflicting decisions on whether or not a notice or motion must be signed
by court. See: Joy Kaigana v Dabo Boubon (1986) H.C.B 59; Nakito v Katumba (1983) H.C.B. 70.
As
a rule, all notices of motion must be signed by the party or his/her advocate.
([See American Express Int. V Patel, Civil Appeal No. 5 of 1985 (Unreported)]
The major distinction between a motion and
chamber summons is that a chamber summons is issued by the authority of court
and regarded asa command directed by the court concerned but a motion is
usually brought by a party seeking some form of relief or remedy from court and
must therefore be signed by him in the same way as a notice of appeal or a
plaint.
A
Notice of motion must contain the grounds of application that have to be set
out. The evidence in support of a Notice
of motion must be by an affidavit and such copy of an affidavit must be served
with a motion since a motion cannot stand without an affidavit. It should be noted however that an affidavit
may not be necessary where an application rests on a matter of law. See: KCC
V Apollo Hotel [1985] H.C.B. 77; Kabwimukya v Kasigwa [1978] HCB 251.
Unlike
a chamber summons which is to be heard in chambers, a notice of motion will
usually be heard in open court.
For
more on Notice of Motion, see Spry, pgs 306-310.
Filing of Court Process
In
every magisterial area, there must be a registry in which the person who wishes
to file a case can file the relevant court papers.
Similarly
in every High Court jurisdiction there has to be a registry where court papers
are lodged.
The
High Court has created other circuit courts in the different regions of the
country namely: Nakawa, Jinja, Mbarara, Masaka, Fort Portal, Mbale, Soroti and
Gulu. For details, see the High Court (Circuits) Instrument, SI No. 20 of
2004.
The
main feature of these circuit courts is that they handle all matters
irrespectively and without separation and all these circuit courts have deputy
registrars who are in charge of filing, and where there is no such registrar,
then the chief magistrate acts as the registrar.
Before
a party files any court process at any registry, he or she is supposed to pay the court fees or filing
fees which are set out in the Court fees Rules and these must be paid
spontaneously (See: The Judicature (Court Fees, Fines and Deposits) Rules, SI 13-3).
These days, the fees are paid directly in the bank and a bank advice form obtained.
In
Unta
Exports v Customs [1970] EA 648, the action was filed on 14th
but the receipt indicated that fees were paid on 16th. Gouldie, J.
Held at. Page 649 that:
“as a matter of practice and of law,
documents cannot be filed validly in the civil registry until fees are paid or
provided for. In this case the fees had not been paid by the time of filing and
in fact were paid out of time; the struck out.”
In Banco Arabe Espanol v Bank of Uganda, CACA 42/98, the fees were paid shortly after
filing the notice of appeal, but within the 14 days limitation. The Court of
Appeal held that the notice of appeal was valid provided the fees were paid
within the time allowed by the rules.
See
also Katuramu v Maliya (1992-93) H.C.B. 161
ISSUE AND SERVICE OF SUMMONS
Under
Order 5 Rule 1(1) of the Civil Procedure Rules, it is provided that when a suit
has been duly instituted, a summons may be issued to the defendant:
(a) ordering him to file a defence
(b) ordering him to answer the claim on
the day to be therein specified.
When
one is served with summons, he or she must file a defence within fifteen days
(Order 8 rule 1(2) CPR).
Accordingly,
the summons is referred to as summons to file a defence. According to section
20 of the Civil Procedure Act, when a suit has been duly instituted, the
defendant shall be served in a manner prescribed to enter an appearance and
answer the claim. The section was in practice overtaken by the rule which only
talks about filing a defence.
The
purpose of summons is to notify the defendant that a suit has been filed, to
require the defendant to file a defence and also to notify the defendant of the
consequences of failure to file a defence.
Under
order 5 rule 2, the summons must be accompanied by a copy of the plaint, a
summary of evidence, list of witnesses, list of documents and list of
authorities.
Under
order 5 rule 1(5) and order 5 rule 8, summons must be signed and also sealed.
Kaur
v Auction City Mart [1967] EA 108
Jones,
J. said that the requirement of signing and sealing the summons under order 5
rule 1(3) (equivalent of Order 1 rule1 (5)) of the Civil Procedure Rules are
mandatory and failure to comply with them renders the summons a nullity. The
case dealt with a Notice of Motion below which was written “This Summons….” the
case also said that there is a rebuttable presumption that the person signing
summons as acting deputy chief registrar has been duly authorised.
In
Nakitto v Katumba [1983] HCB 70,
Kityo, J. said that “notice of motion” fell within the meaning of suit as used
and defined in s.2 of the Civil Procedure Act and therefore non-compliance with
order 5 of the Civil Procedure Rules made the application a nullity. This
notice of motion was not signed by a judge or such officer nor sealed by the
court.
In
Kaigana v Dabo [1986] HCB 59,
Karokora, J. said that although in practice notices of motion carry signatures
of the judge and the seal of the court, these are not a legal requirement and
omission does not render the application fatal. The applicant was properly before
court as it was duly signed by the applicant’s advocate who was moving the
court to hear the application.
See
also: Nanjibhai Prabhudas & Co.
Ltd v Standard Bank Ltd [1968] EA 670 (CA-K); Nyanzi v Zaver (1983) H.C.B 52.
Under
order 5 rule 2, service of summons shall be effected within 21 days of the date
of issue. The 21 day period can be extended by application to court within
fifteen days of the expiry of the 21 days.
Under
Order 5 rule 3(a) and (b) the suit will be dismissed if no application has been
filed and the 21 days have expired.
SERVICE OF SUMMONS
It is the responsibility of each party to
prepare, produce and serve his/her pleadings upon the opposite party. This is a
fundamental feature of the adversarial system of civil litigation of which
parties have primary responsibility. Pleadings in courts of law are thus done inter partes.
In
ordinary pleadings, a party who is dragged to court is issued with a summons
which is an official order requiring a person to attend court either to answer
to a charge or to give evidence.
The
fundamental rule of service of summons is that service of summons must be
personal (Order 5 rule 10). See: Katukulu v Transocean (U) Ltd [1975] HCB
46,47
e)
Mode of Service of summons
Order
5 rule 8 deals with the mode of service. It is by tendering or delivering a
duplicate duly signed by a judge or appointed officer and sealed by the court.
High
Court summons are usually signed by a Deputy Registrar or Registrar and in
Magistrates courts by the magistrate. Order 5 rule 7(1) deals transmission of
summons for service. The summons are either delivered to a person authorised by
court to serve summons, who is called a process server, or to an advocate or
advocate’s clerk approved by court, or sent by post to a magisterial area where
the defendant resides.
Where a duplicate of the summons is directly
delivered and tendered to the defendant personally or to an agent or other
person on his behalf the defendant or such agent or other person shall be
required to endorse an acknowledgement of service on the original summons in
accordance with Order 5 Rule 14.
Under
Order 5 Rule 10, service shall be made on the defendant in person unless he has
an agent empowered to accept service. In this case, service on the agent will, according
to Order 3 rule 3, be deemed to be as effectual as if it had been served on the
party himself or herself and the rules
relating to service on a party to a suit will apply to service on his or her
recognised agent.
Order
5 rule 13 deals with service upon a
member of the defendant’s family. Service could also be effected on any adult
member of the family of the defendant who is residing with him or her.
See:
Bulenzi v Wandera [1991] HCB 80; Owraga v Owraga [1993] IV KALR 4
Order
5 rule 14 requires the defendant to acknowledge service and retain a copy of
the summons and plaint.
Order
5 rule 16 provides for the affidavit of
service. After the process server has served the summons, he or she is
required to annex the affidavit of service. The format of the affidavit is to
be found in Appendix A Form 9.
- The first paragraph states who the deponent is
- The second states that he collected the summons from
the court on such and such a day
- The third paragraph states the manner in which the
defendant was served and how the defendant was identified.
In
Omuchilo v Machiwa (1966) EA 229, the
process server was shown the defendants house at 10.00 am. The defendant was
not there and the server fixed the summons on the door purportedly in pursuance
to Order 5 rule 15. An affidavit of service was subsequently entered. An
application was brought to set aside judgment for the plaintiff. It was held
that before service can be effected under rule 15, the process server must
first use all and due reasonable diligence to find the defendant or any of the
persons mentioned in rules 12 and 13 and it is only after using such diligence,
if none can be found that he can affix a copy of the summons on the premises
full particulars of which should be given. The judge also commented on the
defects in the affidavit of service. He said that it did not mention the person
who witnessed the affixing of the summons and further that although not
required by the rules, that the affidavit should state the town, street or
other particulars of the premises to which the summons were affixed so as to
show that the premises were within the jurisdiction of the court. Judgment was
set aside and the property ordered to be attached was returned.
That
case followed Erukana Kavuma v Metha
(1960) EA 305.
The
process server was told that the defendant was in India. He immediately effected
service on the defendants wife and default judgment was entered. The judge was
considering order 5 rule 13 which states that when in any suit the defendant
cannot be found, service can be made on an agent or an adult member of the
family residing with him. The question was whether the defendant could not be
found. The judge said that it was an inadequate ground for saying that the
defendant could not be found in the absence any enquiry as to the defendant’s
address in the country he had gone to, the duration of his stay and the likely
dates for his return. The judge said that without these you cannot say that the
defendant cannot be found. The ex parte
decree was set aside.
See
also: Zakaliya Kiggundu v Leo Kasujja
(1971) HCB 164
Waweru v Kiromo (1962) EA 172
The
defendant applied to court to set aside the service of summons on the ground
that the affidavit of the process server stated that the summons had been left
with the defendant’s wife with instructions that she should keep it for her
husband as he was not present at the time. It was held that as the process
server made no enquiry about the defendant’s whereabouts, it could not be said
that he could not be found, so as to allow service on his wife under Order 5
rule 13.
These
cases show that service on wives without due enquiry is defective service.
In
Chakubhai v Chotobhai, service was
effected upon the defendant’s agent. It was evident that this agent was not
authorised to accept service but that he had taken the summons to the
defendant. This came to light because the defendant had gone to see the
defendant holding the summons and the plaint and asking for more time. Judgment
was entered in default and the defendant brought an application to set aside
the judgment on the ground of lack of service. The ex parte decree was set
aside but the judge declined to give the defendant the costs of the application
because he held the defendant’s attitude unworthy. The court referred to the
case of Cohen v Das which talks about the steps which can be taken before you
can conclude that the defendant cannot be found.
These
cases require that full inquiries be made including when the person is expected
to come back.
Service upon corporations
The
relevant order is Order 29 of the CPR. What is meant by corporation is any
legal entity not being a natural person and being a creature of statute or of
incorporation under the Companies Act.
Where
the service is upon a Corporation the summons will be served on the secretary
or any Director or other principal officer of the corporation.
Alternatively,
service may be effected by leaving or sending a copy of the summons by post
addressed to the corporation at the registered office or if there is no registered
office, then at the place where the corporation carries business in accordance
with O.29 R 2 CPR.
Order
29 rule 2 recognises that the parent legislation of a statutory corporation may
provide for special rules for service on that corporation.
Order
29 rule 2 (a) of the CPR provides that summons may be served on the secretary
or any director or other principal officer of the corporation. Under paragraph
(b), service may be effected by leaving the summons or by post addressed to the
corporation at the registered office, or if there is no registered office, at
the place where the corporation carries on business.
For
example under the Islamic University in Uganda Act, Cap. 131, s. 67 provides
that:
“Any
document may be served on the university by leaving it at the office of or by
sending it by registered post to the secretary.”
See
also s.30 of the Management Training and Advisory Centre Act, Cap. 134, which
provides that:
“Any
document may be served on the centre by leaving it at or by sending it by
registered post to the director of the centre at the head office of the
centre.”
In
Musajjalumbwa v Bitumastic [1982] HCB
103, Service was effected upon a clerk at the reception. The service was
acknowledged. The affidavit of service did not say who the clerk was or who
pointed him out for the service. Default judgment was entered and an
application was brought to set it aside. It was held that the service was
improper and it did not comply with the equivalent of Order 29 rule 2. It was
not stated who introduced the clerk nor was it stated that the clerk signed for
the company. The judgment was set aside with costs.
In
Ijjala v Energo Project [1988-90] HCB164,
service was tendered to the project manager who was identified by a police
officer. The project manager instructed the secretary who took the summons to
the responsible officer who accepted service and put the company stamp. It was
held that no evidence was held to rebut the plaintiff’s assertion that the
summons were left at the place of business and therefore the service was good.
Okurut v Lwasa et al [1988-89] HCB 164
Service
was effected upon the General manager’s Secretary. It was acknowledged with the
company’s stamp. It was held that the General Manager’s Secretary was not a
Secretary within the meaning of order 26 rule 2 (Order 29 rule 2).
In
the case of Musajjalumbwa v Bitumastic
[1982] HCB 103, the judge seemed not to have addressed himself to Order 29
rule 2(b) which seems to have been satisfied since the summons were left in the
company office. It is also thought that the issue will depend on the affidavit
of service which should clearly indicate which order was being complied with.
See
also: Matiansi Kanimba v
Suryankati Patel HCCS 1145/1972
MB Automobiles v
Kampala Bus Service [1966] EA 480
Service upon a partnership
A partnership is a special legal creature.
Service upon it is provided for under Order 30 rule 3 which provides that:
“(1)
Where persons are sued as partners in the name of their firm, the summons shall
be served—
(a)
upon any one or more of the partners;
(b)
at the principal place at which the partnership business is carried on within
Uganda upon any person having, at the time of service, the control or
management of the partnership business there; or
(c)
as the court may direct.
(2)
The service shall be deemed good service upon the firm so sued, whether all or
any of the partners are within or without Uganda; except that in the case of a
partnership which has been dissolved to the knowledge of the plaintiff before
the institution of the suit, the summons shall be served upon every person in
Uganda whom it is sought to make liable.”
Service upon counsel
This
is provided for in Order 3 rule 4 which provides that:
“Any
process served on the advocate of any party or left at the office or ordinary
residence of the advocate, whether the process is for the personal appearance
of the party or not, shall be presumed to be duly communicated and made known
to the party whom the advocate represents, and, unless the court otherwise directs,
shall be as effectual for all purposes as if the process had been given to or
served on the party in person.”
See: Order 5 rule 11; Phillip Ongom v
Catherine Nyero Owota SCCA No. 14 of 2002;
Beliram v Salkand [1954] 27 KLR 28; UTC v Katongole [1975] HCB 336
Service
on Government
Service
of process upon the government must be in accordance with section 11 of
Government Proceedings Act, Cap. 77 which states that:
“All documents required to be served
on the Government for the purpose of or in connection with any civil
proceedings by or against the Government shall be served on the Attorney
General.”
Under
rule 5of the Civil Procedure (Government Proceeding) Rules SI 77-1, it is
provided that:
“(1) Service of a document on the
Attorney General for the purpose of or in connection with civil proceedings by
or against the Government shall be effected by delivering or sending the
document to be served and a duplicate or copy of the document to the office of
the Attorney General, and shall be deemed not be complete until the Attorney
General or another officer of the Government entitled to practise as an
advocate in connection with the duties of his or her office has endorsed an
acknowledgement of service on the document to be served.
(2) In this rule, “document”
includes a notice, pleading, order, summons, warrant and any written proceeding
or communication.”
Time of service
This
is provided for under Order 51 rule 9 of the CPR which provides that:
(1)
Service of pleadings, notices, summonses, other than summonses on plaints,
orders, rules and other proceedings shall normally be effected before the hour
of six in the afternoon, except on Saturdays when it shall normally be effected
before the hour of one in the afternoon.
(2)
Service effected after the hour of six in the afternoon on any weekday except
Saturday shall, for the purpose of computing any period of time subsequent to
the service, be deemed to have been effected on the following day; service
effected after the hour of one in the afternoon on Saturday shall for the like
purpose be deemed to have been effected on the following Monday.
Wasswa v Ochola [1992-93] HCB 103
Service
was accepted on a Sunday. It was held that under Order 47 (now 59) rule 9 no
service can be effected on Sunday therefore such service was void.
The
decision is doubtful because Order 51 rule 9 does not apply to service of
summonses on plaints.
Affidavits of Service
Whenever
a summons has been served, the person who effected service must swear an
affidavit of service stating the time and the manner in which the summons was
served and the address of the person if any identifying the person served and
witnessing the delivery or tender of the summons.
Order
5 rule 16 provides that:
“The
serving officer shall, in all cases in which the summons has been served under
rule 14 of this Order, make or annex or cause to be annexed to the original
summons an affidavit of service stating the time when and the manner in which
the summons was served, and the name and address of the person, if any,
identifying the person served and witnessing the delivery or tender of the
summons.”
In
M.B. Automobiles V Kampala Bus Service
(1966) E.A 480, It was held that disclosure of the
name and the place of the person who identifies the defendant and witnesses the
delivery or tender of the summons to the applicant at the material time is a
statutory duty under order 5 rule 17. Court noted that failure to record the
name and address of the person, identifying the person to be served renders the
affidavit of service incurably defective.
The
process server must know the person being served and must indicate how he came
to know him or if he is directed, then he should name the person who knows him.
Substituted Service
The
general rule is that where the court is satisfied for any reason that the
summons cannot be served as the ordinary way, the court shall order substituted
service in such a manner as it deems fit. Such services can take the form of
advertisement in newspapers or affixing a copy in some conspicuous place in
court or part of his house or residence.
This
is provided for under Order 5 rule 18 which provides that:
“(1)
Where the court is satisfied that for any reason the summons cannot be served
in the ordinary way, the court shall order the summons to be served by affixing
a copy of it in some conspicuous place in the courthouse, and also upon some
conspicuous part of the house, if any, in which the defendant is known to have
last resided or carried on business or personally worked for gain, or in such
other manner as the court thinks fit.
(2)
Substituted service under an order of the court shall be as effectual as if it
had been made on the defendant personally.
(3)
Where the court makes an order for substituted service, it shall fix such time
for the appearance of the defendant as the case may require.”
The
anomaly in the provision is that the court can under sub rule 3 fix such time
as for filing a defence.
In
the case of Mugeni Geofrey V Ouma Adea
George & Anor HC Election Petition. No. 0015 of 2011 (at Tororo), the
court observed that:
“Rule 6 of the Parliamentary
Elections (Election Petition) Rules, which I will hereinafter refer to as
PE(EP) rules, provides for service. In sub rule 3 thereof, service of the
petition on the respondent is personal. Sub rule 4 envisages a situation where
personal service may fail, and hence makes provision for substituted service.
Sub rule 5 gives the court power to, ‘order
that service be effected in any of the ways prescribed by Order V of the Civil Procedure
Rules for service other than personal service,’.
Order V of the Civil Procedure Rules (CPR) provides for
service of summons. Rule 2 thereof provides that every summons shall be
accompanied by a copy of the plaint, a brief summary of the evidence to be
adduced, a list of witnesses, a list of documents and a list of authorities.
The service of summons other than personal service under the
CPR which the PE(EP) rules refers to is rule 18 of Order V which is headed
‘substituted service’. Under this rule, once court is satisfied that summons
cannot be served in the ordinary way, it orders that summons be served by
affixing a copy of it in some conspicuous place in the courthouse, and also
upon some conspicuous part of the house, if any, in which the defendant last
resided or carried on business or personally worked for gain, or in such other
manner as court thinks fit.
One sees that the rules go out of
the way to ensure that summons is served on the defendant. The reason stems
from the legal maxim that a party should not be condemned unheard. The Court of
Appeal dealt with the object of service of process in Besweri Lubuye
Kiwanuka v. Electoral Commission & Daniel Kokoola EPA No. 2 of 1999,
and stated that this is;
‘To give notice to the party on whom it is made so that he
or she might be aware of and be able to resist that which is sought against him
and where that has been done so that the court might feel perfectly confident
that service had reached him and that everything had been done that could be
required.’ See Kistler v. Tetner [1905] 1 KB 45; Diamond v. Croft
3 Ch. D. 512. Service of process is required and goes to the root of our
conceptions of the proper procedure in litigation. Craig v. Kanssen
[1943] KB 256.’”
The
application for Substituted service is normally made by summons in Chambers ex
parte. (Order 5 rule 32)
The
applicant must have exercised all due and reasonable diligence. The application should also specify the mode
in which service is now sought to be effected.
The
term “cannot be served in the ordinary way” includes the case where the
defendant having knowledge of existence of summons evades service.
The
affidavit support of such application must state the date when the summons was
issued, the occasion on which personal service of summons was attempted, the
facts upon which inference of evasion of service are based, the believed
address of the defendant and the fact that substituted service is the best
method by which the summons will come within the defendant’s knowledge.
After
the order is made and complied with, service is deemed to be effective as if it
were done personally on the defendant - Order 5 rule 18(2) CPR
In Muzito
v Njuki [2005] 2 EA 232 (CA-U), the
respondent sought cancellation of the appellant‟s
title to the land, comprised of Kyadondo Block 255 Plot 84 situated at
Munyonyo, Kampala District, on the grounds that the appellant was not a bona
fide purchaser of the land. Service of summons could not be effected upon the
appellant as he lived and worked in Sweden. The respondent therefore applied
for and obtained leave to effect substituted service by publication of the
notice of the summons in one of the national daily newspapers, The New Vision.
When the appellant did not respond, the respondent obtained ex parte decree and
the appellant’s certificate of title was cancelled and the respondent’s name
substituted as the registered owner. On
return to Uganda, the appellant sought to have the orders set aside on the
grounds that he had not been duly served with the summons but it was dismissed
by the judge, thus the appeal.
It was held that:
“The
substituted service could not have been effective on the appellant, who was
living and working outside the country. Service outside jurisdiction is
provided for under Order 5, rule 23 of the Civil Procedure Rules. It is not by
publication in a national newspaper.”
See
also: Jaffer v Weraga [1975] 2 ULR 188; Mukasa v Matovu [1992-93] HCB 235
Service on Special Category of
Defendants
Order
5 rule 19 deals with service on defendant in prison. It provides that :
“Where the defendant is confined in a prison
the summons shall be delivered or sent by post or otherwise to the officer in
charge of the prison for service on the defendant.”
Order
5 rule 20 deals with service on public officers and soldiers. It provides that:
“(1) Where the defendant is a public
officer in civil employ, or is the servant of a railway company or local
authority, the court may, if it appears to it that the summons may be most conveniently
so served, send it for service on the defendant to the head of the office in
which he or she is employed, together with a copy to be retained by the
defendant.
(2) Where the defendant is a
soldier, the court shall send the summons for service to his or her commanding
officer, together with a copy to be retained by the defendant.
For the purposes of this rule, “soldier” shall
not include an officer.”
The
duty of the person to whom the summons is sent under those two rules is set out
in rule 21 which provides that:
“(1) Where a summons is delivered or
sent to any person for service under rule 19 or 20 of this Order, that person
shall be bound to serve it, if possible, and to return it under his or her
signature with a written acknowledgment of the defendant, and the signature
shall be deemed to be evidence of service.
(2) Where from any cause service is
impossible, the summons shall be returned to the court with a full statement of
the cause and of the steps taken to procure service, and the statement shall be
deemed to be evidence of non-service.”
Service of Summons outside the
Jurisdiction
This
is provided for under Rule 22 which provides that:
“Service out of the jurisdiction of a summons
or notice of a summons may be allowed by the court whenever—
(a) the whole subject matter of the
suit is immovable property situated within the jurisdiction, (with or without
rents and profits);
(b) any act, deed, will, contract,
obligation or liability affecting immovable property situate within the
jurisdiction is sought to be construed, rectified, set aside or enforced in the
suit;
(c) any relief is sought against any
person domiciled or ordinarily resident within the jurisdiction;
(d) the suit is for the
administration of the personal estate of any deceased person, who at the time
of his or her death was domiciled within the jurisdiction, or for the execution
(as to property situate within the jurisdiction) of the trusts of any written
instrument, of which the person to be served is a trustee, which ought to be
executed according to the law of Uganda;
(e) the suit is founded on any
breach or alleged breach within the jurisdiction of any contract wherever made
which, according to the terms of the contract, ought to be performed within the
jurisdiction;
(f) any injunction is sought as to
anything to be done within the jurisdiction, or any nuisance within the
jurisdiction is sought to be prevented or removed, whether damages are or are
not also sought in respect thereof;
(g) any person out of the
jurisdiction is a necessary or proper party to a suit properly brought against
some other person duly served within the jurisdiction; or
(h) the suit is founded on a tort
committed within the jurisdiction”.
FFSB Ltd (formerly known as Fortis
Fund Services (Bahamas) Ltd) v Seward & Kissel LLP [2007] 5 LRC 224; [2007]
UKPC 16
The
Fund was established in The Bahamas as an investment scheme pursuant to the
Mutual Funds Act 1995. H was a director of the Fund, which was administered by
FFSB, and S & K, a New York law firm, acted as legal adviser. The Fund went
into liquidation and subsequently issued a writ against, inter alia, FFSB,
alleging that FFSB had acted in breach of an administration agreement,
statutory duties and a common law duty of care by allowing certain investments.
The Fund also issued a writ against H, alleging breach of duty of care. FFSB
filed its defence denying liability and issued a third-party notice against H,
claiming that, if FFSB were found liable, it would be entitled to a
contribution or indemnity from H as a joint tortfeasor. Subsequently FFSB
applied ex parte for leave to issue a third-party notice against S & K for
service out of the jurisdiction at their New York offices. The application was
supported by an affidavit stating that if FFSB were liable to the Fund for
breaches of duties in, inter alia, tort, then S & K would also be liable
because it was at all material times the Fund's legal adviser and owed a duty
to advise it as to the propriety of its investments. The application was
granted and the third-party notice was served on S & K, which then applied
to discharge the order giving leave to serve.
The judge at first instance dismissed the application and S &
K appealed to the Court of Appeal, which set aside the leave to serve. FFSB
appealed to the Privy Council. FFSB relied on Ord 11, r 1(h) of the Rules of
the Supreme Court (which is equivalent to Order 5 rule 22 (h) of the Uganda
CPR), which provided that service outside the jurisdiction was possible 'if the
action begun by the writ is founded on a tort committed within the
jurisdiction'. S & K argued that FFSB was not entitled to rely on para (h)
for a number of reasons, including that FFSB's claim against S & K was
based on contribution, a statutory cause of action, not tort. Additionally, S
& K claimed that it was not a 'tortfeasor' in accordance with the s 2(1) of
the Mutual Funds Act 1995 definition of 'a person who commits a ... breach of
duty, arising independently of contract' because there had been a contractual
relationship between S & K and the Fund. S & K further submitted that
there was no evidence as to the content of its duty to the Fund, and that
whether the tort was committed in The Bahamas was itself questionable. FFSB
also relied on Ord 11, r 1(j), which provided that service outside the
jurisdiction was permissible if in 'the action begun by the writ ... against a
person duly served within the jurisdiction, a person out of the jurisdiction is
a necessary or proper party thereto'. On appeal, the Court of Appeal held that
S & K was not a necessary or proper party to the first third-party
proceedings which FFSB brought against H, on the basis that H and S & K
were each allegedly liable for different types of damage.
In the Privy Council, all
the arguments on Ord 11, r 1(h) raised by the respondents were rejected.
The P.C held that the judge at first
instance correctly held that the requirements
for service out of the jurisdiction under that paragraph were satisfied. It was true that the claim for contribution was a
statutory cause of action and not a cause of action in tort. However, it was founded on a tort and the basis of
para (h) was that if someone committed a tort in The Bahamas, it was reasonable that that person should have to
answer for that tort in the Bahamian courts. For the purposes
of that rule, there was no reason why it should matter whether the claim was
made by the victim of the tort or by another
tortfeasor seeking contribution. Similarly, under the English legislation, a
tortfeasor was simply someone who committed a
tort. It was unlikely that the Bahamian definition was intended to narrow the concept of a tortfeasor. On the contrary, the
purpose was to extend it to any cause of action in respect of the same damage which was not ex contractu. In the
instant case, the alleged cause of action in negligence arose independently of
contract because, although its content was determined by the responsibilities
undertaken by S & K under their
contractual retainer, the liability did not depend upon those responsibilities having been contractual. Additionally, at the
interlocutory stage it was impossible to determine anything definite about the nature of the duty that S & K owed to
the Fund. The only question was whether the allegation that S & K owed a relevant duty in relation to the
propriety of the investments was supported by evidence which disclosed a
serious issue to be tried. In the instant case such an issue was disclosed.
Finally, the evidence demonstrated that it was at least arguable that the tort
was committed in The Bahamas, where the advice was, or should have been,
received and acted upon.
See also rules 28 and 30
See: Degefa v Bowerman [1994] IV KALR 27
Expiry of Summons
Where
a summons was issued by court, and the person who is supposed to serve fails to
serve within the specified date. Such
summons shall expire. The summons once
issued by court are valid for 21 days and they must be returned to court for
renewal through an application to extend the time. However there must be good reason for the
delay in service to be shown before court before such an application for
renewal is granted. The court may then
issue fresh sermons or renew the sermons issued earlier on such conditions as
it may deem fit.
See: Order 5 rule 1(2) CPR
PARTIES
TO A SUIT
A party to a suit may be a plaintiff, defendant,
applicant or appellant, respondent among others depending on the type of
proceedings.
Normally a party is a person who on the record of
the court has commenced a proceeding or against whom a proceeding has been commenced
or who has been added by order of court.
The term party may also be used to designate the
person seeking to present a plaint or establish a cause of action as well as
the person against whom it is sought to impose a corresponding duty or liability.
In a representative action a person represented but
not named as a party is also considered to be a party and such a person may be
substituted and named as a party.
To be a party, a person must be able to maintain a
cause of action or incur a liability to a person who has a cause of action.
CAPACITY
TO SUE OR BE SUED
The determination of whether a person is capable of
suing or being sued is governed by the substantive law.
While most natural persons may sue or be sued,
limitations exist with regard to certain types of natural persons such as
children, persons of unsound mind, Aliens and sovereign states.
Natural
persons
Natural persons who are mentally competent may sue
or be sued without limitation except in cases of death of such a person, when
he or she may cease to exist as a party and actions on behalf of his or her
estate continued in a representative proceeding by the executors or
administrators of the estate.
While alive, a natural person may be a party to a
proceeding in his given, assumed or fictitious name. When an alias is used a party should be
described by using his proper names followed by the alias.
When a father and son have the same names, it will
generally be assumed in absence of a prefix that the father is intended.
NB:
When a son is sued or daughter is sued, the
prefixes s/o or d/o will be used respectively.
A party must be described by name and not mere
descriptions such as administrators of X’s estate without naming the individual
administrators.
It is not legally possible for an agent to
institute a suit in his or her own name without the principal’s authority.
This was held in the case of Oriental Insurance Brokers Ltd Vs
Trans Ocean Uganda Ltd H.C.C.S. No. 250/93 unreported.
See generally Order 3 of the CPR regarding
recognised agents.
SUITS BY
MINORS
Minors cannot bring suits of their own accord until
they attain the age of majority. A minor
is a person who has not attained the age of majority which may either be 18 or
21 depending on the jurisdiction. Similarly, a minor cannot be sued in his or her own accord.
See: Bibonde v Wasswa [1974] HCB 120; Kiddu
Musisi v Lyamulemye [1964] HCB 81; Kimera v Jiwani [1971] ULR 194; Art. 257(1)
(c) Constitution, 1995
In such circumstances a minor sues by his or her
next friend or defends by his or her guardian ad item.
See: Kabatooro v Namatovu [1975] HCB 159
Order 32 Rule 1 of the Civil Procedure Rules requires that every suit by a minor
must be instituted in his or her name by a next friend.
A next friend must sign a written authority which
is to be filed together with the plaint (Order 32 rule 1(2) CPR. The next friend or guardian ad litem must act
by an advocate who must certify that he knows or believes the person to whom the
certificate relates to be a minor and that the person consenting to be a next
friend or guardian ad item has no interest in the action which is adverse to
that of a minor.
See: Kasifa Kiwanuka v Sulaiman Lubowa [1972]
HCB 210
Order 1 rule 10(3) CPR provides that:
“No person shall
be added as a plaintiff suing without a next friend or as the next friend of a
plaintiff under any disability without his or her consent in writing to being
added.”
According to the case of Jingo v Kangiza 1974 H.C.B. 294,
Court held that pleadings filed on behalf of a minor without authority of a
next friend will be taken off the file by the court. Where a minor is represented by an advocate,
and there is no authority of a next friend, if the plaint is taken off the file, court may order costs to be paid
personally by counsel.
See: Order 32 rule 2(1) CPR.
The person appointed as a next friend may be
personally liable for costs if they are awarded against the plaintiff although
he has the right of indemnity against the minor. On the other hand, a guardian ad item is
personally liable for costs only where he has been guilty of negligence or
misconduct.
The next friend is an officer of the court
appointed to look after the interests of an infant in the conduct of
proceedings. A next friend has no power
to consent to the dismissal of an action or to the withdrawal of the suit
without the court’s approval.
A next friend cannot retire without the consent of
the court and it is immaterial that all parties to the action have given their
consent. A person retiring from being a
next friend may be required by the court to give security for costs incurred
during his term of office. Court can grant an application by next friend to
withdraw on the ground that he or she will be liable for costs (Order 32 rule
8).
Where an infant who is a plaintiff in an existing
action comes of age his next friend should not take any further proceedings in
the action. The former infant or minor
may either adopt or repudiate the proceedings within a reasonable time. On
electing to adopt the proceedings an infant in becoming of age should file in
the registry of court a notice to the effect that he has attained the age of
majority and adopts the proceedings begun or defended on his/her behalf. A copy of this notice should be delivered on
the other parties (Order 32 rule 12).
MENTALLY
INCOMPETENT PERSONS
These may include idiots and lunatics. An idiot is one who has suffered incapacity
from birth (usually has an IQ of about 25 or under a mental age of less than 3
years) where as a lunatic is one who has become insane after birth and where
incapacity is temporally. In addition
there is a general term of madness which denotes incapacity of mind that is
complete and permanent and all these are normally compounded under a general
term persons of ‘unsound mind’.
Under Order 32 Rule 15 mentally incompetent persons may commence an action in the same way
as a minor through a next friend or defend a suit by a guardian ad item.
See: Kaggwa
v AG [1971] H.C.B 333;
Where a mentally incompetent person without a
representative commences proceedings, an application should be made by a
defendant to stay the proceedings until a next friend is appointed. Where there is a doubt or dispute as to
mental disability of a party, an application should be made to the court to
determine if incompetence exists. This
was stated in the case of Porter V Porter
(1888) 37 Ch. D 420.
Where the party becomes mentally incompetent during
the pendency of a proceeding, the proceeding is stayed but not discontinued
since the incompetent party is unable to revoke the previous authority given to
his counsel to commence or defend the proceeding.
See: Bakari
v Akamba Republic Bus Service [1976] HCB 323
Where a next friend is appointed during the
incompetence and later the incompetent person recovers, he or she should apply
for an order to discharge the appointment of a next friend or guardian ad item.
COMPANIES
AND STATUTORY PERSONS AS PARTIES
This is generally governed by Order 29 of the Civil Procedure Rules. An incorporated company can
be a party to an action. Any company
incorporated by an Act of parliament may sue or be sued in its corporate
name. Before institution of an action
involving a company, it is advisable to ascertain from the Registrar of
Companies or from the Act of incorporation the proper and correct names for the
company. If the correct name of the
corporate party is not used in the pleadings and summons, then it is possible
that that company may raise an objection that the corporate party sued was
non-existent.
The change of a name of a company does not render
defective any legal proceedings instituted by or against the company. Any legal proceedings may be continued or
commenced against the company by its new name.
To bring a suit in the name of a company there has
to be a special resolution first by the company authorizing the institution of
such a suit. However where a director
Instructs an advocate, then he is deemed to have authority to authorize the
institution of such a suit even if there is no resolution.
In the case Bugerere
Coffee Growersv Sebaduka 1971 EA 147, court noted that for a company to
bring a suit, it is necessary that a resolution must be passed either at the
general board meeting or at the general assembly meeting and this must be
reflected in the minutes. This case
further noted that where an advocate brings proceedings without the
authorization of the company then he becomes personally liable to the defendants
for costs of the action.
However in the case of United Assurance Company Ltd
SCCA No. 1/86 the Wambuzi,
C.J, held against the decision in
Sebaduka’s case and noted that a resolution was only one way of proving the
decision of the Board of Directors and that unless the law specifically
insisted on a resolution, he was not prepared to insist on it. He noted that authority to bring an action in
the name of the company is not one of those instances where the Company’s Act
required a resolution.
Where a company is in liquidation or in receivership,
the liquidator/receiver may sue in the name of the company. A corporation which has ceased to have any
juristic existence cannot sue or be sued.
GOVERNMENT
All civil proceedings by the state are instituted
and prosecuted in accordance with the Government Proceedings Act. Any person has a right to sue government,
subject to the Government Proceedings Act. Section 10 of the G.P.A. provides
that:
“Civil
proceedings by or against the Government shall be instituted by or against the
Attorney General.”
REPRESENTATIVE
PARTIES
DECEASED
PERSONS
A deceased person cannot commence or defend an
action. In the case of an estate of a
deceased person, administrators or executors become the proper persons or
parties to bring an action or to defend an action of a deceased person. The
rules of court provide that administrators or executors of the estate of a
deceased person may sue or be sued on behalf of the estate without joining any
of the beneficiaries (Order 31 rule 1 CPR).
The administrator of an estate of a deceased person
is appointed by a grant of letters of administration while the executor is
named in a will and is appointed by court through the grant of probate in
accordance with the Succession Act.
When administration of the estate is not taken out
by the immediate members of the family as specified in the Succession Act a
creditor or a person having a cause of action against the estate may apply for
the grant (See sections 202 and 203 of the Succession Act and section 4 of the
Administrator General’s Act).
Where there is more than one administrator all must
be made parties (Order 31 rule 2 CPR).
TRUSTEES
A trustee is a person engaged in Administrative
duties with regard to property entrusted to him for the benefit of others. Trustees may be individuals or corporations
who have been given power so to act.
Section 1(3) of the Trustees Incorporation Act,
Cap. 165 states that:
“The trustees or
trustee shall thereupon become a body corporate by the name described in the
certificate, and shall have perpetual succession and a common seal, and power to sue and be sued in the
corporate name,....”
A person may
be appointed a trustee under a will.
Where a person is appointed in a dual capacity of an executor and
trustee, the estate of the deceased person is vested in the executor first and
after the fulfilment of his duties and an executor, he thereafter becomes a
trustee to carry out the trust set up under the will including the distribution
of the estate to the beneficiaries.
Another person may become a trustee under an
express instrument or under the law of Agency, bailment or trusts and also by
law under the Public Trustee Act. Section 2 of the Public Trustee Act, Cap. 161
states that;
“The public trustee shall be a corporation sole by
the name of the public trustee and as such shall have perpetual succession and
an official seal, and may sue and be
sued in his or her corporate name, but any instrument sealed by him or her
shall not, by reason of his or her using a seal, be rendered liable to higher
stamp duty than if he or she were an individual.”
UNINCORPORATED
ASSOCIATIONS
These may include, clubs, trade unions, employer
associations or General associations. An
association consists of a number of persons voluntarily united together by
common interest in order to promote certain objectives for their mutual
benefit. A club is an association of
people, formed for a common purpose other than profit making, such as promoting
knowledge, art or social activities.
In such situations a member does not become liable
to pay funds of a club beyond the subscription fee required by the constitution
of the club.
An association or club that has not obtained
corporate or quasi corporate status by statute has no legal existence apart
from its members. It s not a legal
entity nor is it an association of persons carrying on business in common with
a view of making profit.
An unincorporated association is not a legal entity
capable of suing or being sued. Any
proceeding against such an entity is a nullity and not a mere irregularity
which may be waived by filing the defence.
However trustees of the property of an
unincorporated association may sue or be sued in respect of the property vested
in them since the trustees are considered to represent the members’ beneficial
interest in the property.
See also: Nakawa/Naguru Residents Association v
AG and ULC, HCCS No. 146/2011 – commentary on P.Os
PARTNERSHIPS
Under Order
30 rule 1 CPR, partnerships may sue or be sued in the firms’ name or
alternatively in the names of the individual partners. Whenever there is doubt about the membership
of the partnership, it is then advisable to issue court process against such a
firm in its firm name.
See: Gatete
& Another v Kyobe, SCCA No.7 of 2005.
With leave of the court, the judgment is generally
enforceable against any other partner within the jurisdiction but a foreign
partner many have to be sued individually.
It is always good practice in drafting pleadings to
state in the plaint more than the firm name and to give the names of the
partners followed with words “trading as” and then followed by the firm name.
ALIENS
These are governed by section 57 of the CPA which
states that:
“When aliens may sue.
(1) Alien
enemies residing in Uganda with the permission of the Minister, and alien
friends, may sue in the courts of Uganda as if they were citizens of a
Commonwealth country.
(2) No alien
enemy residing in Uganda without such permission, or residing in a foreign
country, shall sue in any such courts.
Explanation.—Every person residing in a foreign country the
Government of which is at war with the Government of Uganda, and carrying on
business in that country without a licence in that behalf under the hand of the
Minister, shall, for the purpose of subsection (2), be deemed to be an alien
enemy residing in a foreign country.”
Foreign
states
This governed by section 58 of the CPA which
provides that:
“When foreign
State may sue.
(1) A foreign State
may sue in any court of Uganda if—
(a) that State has been recognised by the Government;
(b) the object of the suit is to enforce a private right vested in the
head of that State or in any officer of that State in his or her public
capacity.
(2) Every court
shall take judicial notice of the fact that such foreign State has or has not
been recognised by the Government.”
JOINDER
AND SUBSTITUTION OF PARTIES
The rules of the court provide the following
grounds for voluntary or mandatory joinder of two or more parties in a
proceeding.
1)
Where there is a right to relief in respect of the
same act or transaction or series of acts or transactions whether joint,
several or in alternative.
2)
Where a common question of law or fact would arise
if separate suits were brought by the parties.
3)
Leave of the court obtained: where the leave of
court is obtained, parties may be joined in an action.
4)
Joint Claimants: where persons are joint claimants,
they may be joined as plaintiffs.
5)
Joint and Several Liability: where persons are
jointly and severally liable for the relief sought, they need not be joined as
defendants.
6)
Presence of a person promotes administration of
justice: where the presence of a person as a party to a proceeding may promote
the convenient administration of justice, then such a party may be joined to
the proceedings.
7)
Person’s presence is necessary: where a person’s
presence is necessary as a party to enable the court to effectively adjudicate
upon the issues or where such a person is required by statute, then such a
person may be joined on a party.
8)
Doubt against whom relief is sought: under Order 1
Rule 7, where there is doubt as to
the persons from whom the plaintiff is entitled to obtain redress, he may join
two or more defendants. However under Order 1 rule 2, court has power to order separate trials if joinder of plaintiffs
may embarrass or delay the trial.
JOINDER
See: Order 1 Rules 1 ,3 & 9 CPR
In applying the rules, one must keep in mind that a
person may be joined as a party in the proceedings:
1.
By a defendant after proceedings with leave of the
court.
2.
By a plaintiff after proceedings with leave of the
court.
3.
By the court on an application of any party or by
an intervener or the court may on its own motion add a party.
In joining parties the fundamental purpose is to
enable court to deal with matters brought before it and avoid multiplicity of
pleadings.
A party joined to an action must have an interest
in litigation. An original plaintiff
with no cause of action cannot join a person who may have a cause of action.
JOINDER
OF A DEFENDANT
Order 1 rule 10 provides that:
“(1) Where a suit has been instituted in the name
of the wrong person as plaintiff, or where it is doubtful whether it has been
instituted in the name of the right plaintiff, the court may at any stage of
the suit, if satisfied that the suit has been instituted through a bona fide
mistake, and
that
it is necessary for the determination of the real matter in dispute to do so,
order any other person to be substituted or added as plaintiff upon such terms
as the court thinks fit.
(2)
The court may at any stage of the proceedings either upon or without the
application of either party, and on such terms as may appear to the court to be
just, order that the name of any party improperly joined, whether as plaintiff
or defendant, be struck out, and that the name of any person who ought to have
been joined, whether as plaintiff or defendant, or whose presence before the
court may be necessary in order to enable the court effectually and completely
to adjudicate upon and settle all questions involved in the suit, be added.
(3)
No person shall be added as a plaintiff suing without a next friend or as the
next friend of a plaintiff under any disability without his or her consent in
writing to being added.
(4)
Where a defendant is added or substituted, the plaint shall, unless the court
otherwise directs, be amended in such manner as may be necessary, and amended
copies of the summons and of the plaint shall be served on the new defendant,
and, if the court thinks fit, on the original defendants.
(5)
For the purpose of limitation, the proceedings against any person added or
substituted as defendant shall be deemed to have begun only on the service of
the summons on him or her.”
In Pathak v
Mrekwe (1964) EA 24, an action was filed in the name of the respondent 45
days after her death. Subsequently, an application to amend the plaint by
substituting the name of another person as plaintiff was made under Order 1
rule 10 of the Indian Civil Procedure Code, 1908 and the magistrate who was not
informed that the plaintiff was dead when the action was filed, made the order
sought. The defence pleaded, inter alia, that the suit was a nullity, having
been filed in the name of a deceased person. The magistrate however gave
judgment for the plaintiff for the sum claimed. On appeal, it was held that a
suit instituted in the name of a dead person is a nullity. The power conferred
by Order 10 rule 1 to substitute a plaintiff where a suit has been filed in the
name of a wrong plaintiff can only be exercised where the “wrong person” is
living at the date of filing the suit and has no application where the “wrong
person” is dead at such date.
In Matharu v
Italian Construction Company & Another (1964) EA 1, the plaintiff was
concerned in a traffic accident which also involved a vehicle then belonging to
a firm known as Italian Construction Company Limited of which the partners of
the firm were the directors and shareholders. When the plaintiff’s advocate
prepared and filed a plaint for his client, he showed the defendant company
instead of the firm as a defendant, although the company was not in existence
at the time of the accident. Subsequently, an application was made for leave to
amend the plaint by substituting the firm for the defendant company in support
of which it was submitted that that on the wording of the plaint, it was clear
that it was the firm which it was really intended to sue.
It was held that upon a fair treading of the
plaint, it was the plaintiff’s intention to sue the persons who were the
partners in the firm at the material date. Further, that since the partners, as
directors of the limited company, had notice of the suit within the period of
limitation, it was just and proper to grant the application. Court followed the
case of Saraspur Manufacturing A Co. Ltd v BB&C Railway Co. Where
Macleod, CJ, said:
“It seems to me in the interests of justice that if
it can be said that there has been a misdescription of a party in the title of
a plaint, the necessary amendment ought to be allowed, if otherwise the rights
of the parties would be prejudiced”.
The Court also referred to Radha Lal v E I
Railway Co. Ltd , a case where the agent of the railway company had been
sued instead of the company and Mullick, Ag. CJ, said:
“If the plaintiff deliberately chooses to sue not
the company but the agent he cannot by any decree which he obtains in the suit
bind the company. If, however, upon a fair reading of the plaint it is made out
that the description of the defendant is a mere error and that the company is
the real defendant , then the suit may proceed against the company.”
The judge however noted that not all these cases
were on all fours with the present case.
Misjoinder
and Non joinder
Under Order 1 rule 9, it is provided that:
“No suit shall be defeated by reason of the
misjoinder or nonjoinder of parties, and the court may in every suit deal with
the matter in controversy so far as regards the rights and interests of the
parties actually before it.”
Misjoinder is
regarded as a minor technicality which cannot defeat a suit. See: Allied
Bank International Ltd v Sadru Kala [2001-2005] HCB 79
See: GENERALLY
Spry 2008, pages 13 to 16
Joinder
of Interveners
An intervener is one who on his own application and
with leave of court is added to an action pending between others. When added, the intervener may have the
status of a party to the action as a friend of the court.
An intervener is normally referred to as amicus curie or friend of court and is a
person who calls the attention of court to some decision or point of law, but
who does not become a party to the action.
Amicus Curiae is sometimes referred to as a
bystander and where a judge is doubtful or mistaken in a matter of law, may
assist the court. In the case of Re Nakivubo Chemists (U) Ltd. (1977) H.C.B
311, court noted that, in the ordinary use
the term amicus curiae implies a friendly intervention of counsel to remind the
court of some matter of law which has escaped its notice in regard of which it
is in danger of going wrong.
The common law principle is that the parties to an
action have the rights to litigate free of interference by a stranger. Most recent cases have held that as an
intervener or amicus curiae should be restricted to those cases in which the
court is clearly in need of assistance.
At common law, a court has inherent power to invite
an amicus curiae when it considers it desirable. However, the person so called, ought not to
be interested in the matter at hand, except the Attorney General.
See: IGG
& Jinja District Administration v Blessed Constructors Ltd (HCCA 21/2009-at Kampala)
Striking
Out, Substitution and addition Parties
See Order 1 rule 10 of the CPR which states that:
“(1) Where a suit
has been instituted in the name of the wrong person as plaintiff, or where it
is doubtful whether it has been instituted in the name of the right plaintiff,
the court may at any stage of the suit, if satisfied that the suit has been
instituted through a bona fide mistake, and
that it is necessary for the determination of the
real matter in dispute to do so, order any other person to be substituted or
added as plaintiff upon such terms as the court thinks fit.
(2) The court may at any stage of the proceedings
either upon or without the application of either party, and on such terms as
may appear to the court to be just, order that the name of any party improperly
joined, whether as plaintiff or defendant, be struck out, and that the name of
any person who ought to have been joined, whether as plaintiff or defendant, or
whose presence before the court may be necessary in order to enable the court
effectually and completely to adjudicate upon and settle all questions involved
in the suit, be added.
(3) No person shall be added as a plaintiff suing
without a next friend or as the next friend of a plaintiff under any disability
without his or her consent in writing to being added.
(4) Where a defendant is added or substituted, the
plaint shall, unless the court otherwise directs, be amended in such manner as
may be necessary, and amended copies of the summons and of the plaint shall be
served on the new defendant, and, if the court thinks fit, on the original
defendants.
(5) For the purpose of limitation, the proceedings
against any person added or substituted as defendant shall be deemed to have
begun only on the service of the summons on him or her.”
Third
party proceedings
Under order 1 rule 14 CPR, third party proceedings is an action by the defendant for
contribution or indemnity against the 3rd person or a co-defendant
as a third party (see rule 21).
Objects of 3rd
party procedure
1.
To prevent multiplicity of actions and to enable court
to settle disputes between all parties in one proceeding and save expenses.
2.
To prevent the same issue from being heard twice
with a possibility of different results.
3.
To have the issue between defendant and 3rd
party resolved in the original action between the plaintiff and defendant.
4.
To have the issue between defendant and 3rd
party decided as soon as possible after the decision in the original action
between the plaintiff and defendant.
In lieu of commencing 3rd party
proceedings, the defendant may sue a 3rd person, in a separate
action to enforce his rights.
Nature
of third party proceedings
This order applies only to cases where the
defendant claims to be entitled to contribution or indemnity against a third
party.
A third party proceeding is in effect an
independent action with a 3rd party becoming a defendant, with a
right to counter claim or having the right to conduct a discovery of opposing
parties. Where the main action is
settled, a 3rd party proceeding may still continue. A 3rd party may be dismissed for
want of prosecution, even though the main action is still proceeding.
Under the rules of court, a 3rd party is
not strictly a defendant against the plaintiff in the original suit, but the
rules generally provide that a 3rd party may dispute the liability
of the defendant on the original action to the plaintiff.
A 3rd party may also under the rules
take third party proceedings against any other person including the plaintiff
in the original action (See rule 20).
When the 3rd party claims contribution
or indemnity, such third party may counter claim against the defendant in the
original action, at whose instance he was made a 3rd party, but not
against the plaintiff in the original action.
As a 3rd party is not a party to that action.
Scope of
third party proceedings
A claim for contribution or indemnity may arise out
of an express or implied contract or from the relationship of parties or where
a right of indemnity exists, when the relationship between the parties is such
that either in law or equity, there is an obligation upon one party to
indemnify the other.
The right to indemnity need not be for the claim in
a main action. It may be for any separate or severable part in the plaintiff’s
claim. The defendant may also claim
against a 3rd party for any relief or remedy relating to or
connected with the subject matter of the original action and is substantially
the same as the relief or remedy claimed by the plaintiff in the original
action. But it is not necessary that the
whole question between plaintiff and the defendant or the 3rd party
be identical.
Facts in the original suit and the 3rd
party proceedings must be related. The
real question to determine is whether on considering the facts upon with the
plaintiff relies against the defendant in the main action, issues arise of the
relations between the defendant and the 3rd party. There must be a connection of fact or subject
matter between the claim upon which the plaintiff sues in the main action and
the claim of the defendant against the 3rd party.
INTERPLEADER
Where a stakeholder with no personal interest in
property he or she is holding receives competing claims to such property from
two or more persons, he or she may seek relief by way of interpleader. This is done by the claimants’ arguing out
their claims against each other before the court, where the inter-pleader
proceeding may be instituted.
Under section 59 of Civil Procedure Act it is
provided that:
“Where two or
more persons claim adversely to one another the same debt, sum of money or
other property, movable or immovable, from another person, who claims no
interest in it other than for charges or costs and who is ready to pay or
deliver it to the rightful claimant, that other person may institute a suit of
interpleader against all the claimants or, where a suit notice in such suit,
for the purpose of obtaining a decision as to the person to whom payment or
delivery shall be made, and of obtaining indemnity for himself or herself;
except that where any suit is pending in which the rights of all parties can be
properly decided, no such suit of interpleader shall be instituted.”
Under Order 31 rule 2 it is provided that:
“Interpleader proceedings may be instituted—
(a)
in a case where
no suit is pending, by an originating summons;
or
(b) in a case where a suit is
pending, by motion on notice in that action.”
See: Nakabugo v
F.D Serunjogi (1981) HCB 59;
Nature
of Interpleader Relief
Under
Order 34 Rule 2 CPR, it is provided that:
“In every suit of
or application by way of interpleader the applicant shall satisfy the court by
way of affidavit or otherwise—
(a) that the applicant claims no interest in the
subject matter in dispute other than for charges or costs;
(b) that there is no collusion between the
applicant and any of the claimants;
(c) that the applicant is willing to pay or
transfer the subject matter into court or to dispose of it as the court may
direct.”
According to the case of Famous Ajoling Agency Ltd. V M.
Ramj (1994) 5 K.L.R. 58, Court
noted that the basis of the right to
interpleader relief is in the existence of a conflict between two or more
persons claiming the same property or debt.
Accordingly,
the claims against the applicant must be adverse to each other. See: Sergent
v Gautama (1968) EA 338 (CA-K).
The object of an inter pleader proceeding is to
save an applicant from the embarrassment of being sued by more than one party
in respect of the same subject matter and also to ensure that the claimant can
enforce the claims with an order of court.
CAUSE OF
ACTION
A cause of action can be defined as the fact or combination of facts
which give rise to a right of action.
According to Halsbury's Laws of England/Civil Procedure (Volume
11 (2009) 5th Edition, Paras. 21, it is stated that:
“'Cause
of action' has been defined as meaning simply the facts the existence of which
entitles one person to obtain from the court a remedy against another person.
The phrase has been held from the earliest time to include every fact which is
necessary to be proved to entitle the claimant to succeed, and every fact which
the defendant would have a right to dispute. 'Cause of action' has also been
taken to mean that particular act on the part of the defendant which gives the claimant
his cause of complaint, or the subject matter or grievance founding the claim,
not merely the technical cause of action.
The
same facts or the same transaction or event may give rise to more than one
effective cause of action.
A
cause of action arises wholly or in part within a certain local area where all
or some of the material facts which the claimant has to prove in order to
succeed arise within that area.
A
reasonable cause of action means a cause of action with some chance of success,
when only the allegations in the statement of case are considered.”
The cause of action is the heart of the plaint, which is the
pleading that initiates a lawsuit (See Order 4 rule1 CPR). Without an
adequately stated cause of action the plaintiff's case can be dismissed at the
outset (See Order 7 rule 11(a) CPR). It is not sufficient merely to state that
certain events occurred that entitle the plaintiff to relief. All the elements
of each cause of action must be detailed in the plaint. The claims must be
supported by the facts, the law, and a conclusion that flows from the
application of the law to those facts (See Order 7 rule 11(e) CPR).
The cause of action is often stated in
the form of a syllogism, a form of deductive reasoning that begins with a major
premise (the applicable rule of Law), proceeds to a minor premise (the facts that gave rise to the
claim), and ends with a conclusion. In a cause of action for battery, the rule of law is that any intentional, unpermitted act that
causes a harmful or offensive touching of another is a battery. This is the
major premise and is stated first. Supporting facts, constituting the minor
premise, appear after the rule of law. For example, a statement of facts for a
case of battery might be "The
plaintiff, while walking through ABC Store on the afternoon of March 11, 2009,
was tackled by the defendant, a security guard for the store, who knocked the
plaintiff to the floor and held her there by kneeling on her back and holding
her arms behind her, while screaming in her ear to open her shopping bag. These
actions caused the plaintiff to suffer injuries to her head, chest, shoulders,
neck, and back." The cause of action concludes with a statement that
the defendant is responsible for the plaintiff's injuries and that the
plaintiff is entitled to compensation from the defendant.
A cause of action can arise from an
act, a failure to perform a legal obligation, a breach of duty, or a violation
or invasion of a right. The importance of the act, failure, breach, or
violation lies in its legal effect or characterization and in how the facts and
circumstances, considered as a whole, relate to applicable law.
A set of facts may have no legal effect
in one situation, whereas the same or similar facts may have significant legal
implications in another situation. For example, tackling a shoplifting suspect
who is brandishing a gun is a legitimate action by a security guard and
probably would not support a claim for relief if the suspect were injured in
the fracas. On the other hand, tackling a shopper who merely acts in a
suspicious manner while carrying a shopping bag is a questionable exercise of a
guard's duty and may well give rise to justiciable causes of action.
A cause of action has been defined in various cases
from being “every fact which is material
to be proved to entitle the plaintiff to succeed” in Cooke v Gill (1873) LR 8 CP 107 to “every fact which it would be necessary to support his right to the
judgment of the court” in the case of Read
v Brown (1888) 22 QBD 128.
According to the leading case of Auto
Garage v Motokov (1971) E.A. 314, there are 3 essentials to support or
sustain a cause of action:
1.
That the plaintiff enjoyed the
right.
2.
That the right has been violated.
3.
That the defendant is liable
If any of these essentials in missing, the plaint or statement of claim
is a nullity.
A Cause of action also means every fact which defendant will have a
right to traverse.
In the case of Uganda Aluminium Ltd V Restuta Twinomugisha
C.A. No. 22/2000 and also in Tororo cement Co. Ltd V. Frokina
International Ltd, C.A. No. 21/2001 unreported, it was noted by the
Court of Appeal that a cause of action means every fact which is material to be
proved to enable the plaintiff succeed or every fact which if denied the
plaintiff must prove in order to obtain judgment.
The above issue was reiterated in the case of Kapeka Coffee Works Ltd &
Anor Vs NPART Court of Appeal Civil Appeal No. 3/2000.
Before one can even sue, one needs to bear in
mind the procedures involved and none is a procedure more important than having
a valid cause of action.
In order to determine whether or not a plaint discloses a cause of
action, the court must look only at the plaint and its annextures if any and
nowhere else.
In
Narotham Bhatia & Hematini Bhatia v Boutique Shazin Ltd CACA No. 16 of 2009 the Court of Appeal
quoted with approval a passage in Mulla’s
Code of Civil Procedure that;
“A cause of action means
every fact which if traversed, it would be necessary for the plaintiff to prove
in order to support his right to a judgment of the court. In other words it is
a bundle of facts which, taken with the law applicable to them give the
plaintiff a right to claim a relief against the defendants. It must
include
some act done by the defendant since (in) the absence of such an act, no cause
of action can possibly accrue…….the cause of action must be antecedent to the
institution of the suit”.
Spry,
V.-P in Auto
Garage & Another v Motokov (No.3) [1971] E.A.514
at page 519
stated at page 520 that the matter as to
whether a cause of action is disclosed is one to be decided by perusal of the
plaint and any annextures to it, not on a basis
of evidence.
See also: Otucu & Another v
Otwi & Others, High Court Civil Appeal 027 of 2007 (at Gulu)
JOSEPH
MPAMYA VS AG (1996) 11 KALR 121 at p. 124 and HIGH COURT OF UGANDA HOLDEN AT
GULU CIVIL APPEAL NO. 8 OF 2007, MARY OCENG & 2 OTHERS VS SANTO ADOKO,
UNREPORTED.
When a cause of action is founded in a determinant tort e.g. negligence,
there are cornerstones on which the will be based. Actionable negligence consists in the neglect
of the use of ordinary care and skill towards a person to whom the defendant
owes a duty of observing ordinary care and skill.
Under Order 7 rule 11 (a) of
the CPR provides that,
“A Plaint shall be rejected where it does not
disclose a cause of action.”
A plaint
without a cause of action is nothing as there is no basis for locus for such
party to be before court in the first place.
In The Alifar Keya (1938) EACA 18, it was pointed out that:
“It must be noted that the court must look
at the pleadings (plaint) while determining whether a cause of action has been
made out. That the plaintiff must clearly come out as the person
aggrieved by the violation of a right and the defendant as the person who is
liable.”
JOINDER
OF CAUSES OF ACTION
The facts or circumstances that entitle
a person to seek judicial relief may create more than one cause of action. For
example, in the preceding example, the plaintiff might assert claims for
assault, battery, intentional infliction of emotional distress, and violation
of Civil Rights. She might also bring claims for negligent hiring (if the guard
had a history of violent behaviour which the store failed to discover) or
negligent supervision. (When damages are caused by an employee it is common to
sue both the employee and the employer.) All these causes of action arise from
the same set of facts and circumstances but are supported by different rules of
law and constitute separate claims for relief.
Under
Order 2 Rule 4 CPR, it is provided that:
“(1) Except as otherwise
provided, a plaintiff may unite in the same suit several causes of action
against the same defendant or the same defendants jointly; and any plaintiffs
having causes of action in which they are jointly interested against the same
defendant or the same defendants jointly may unite those causes of action in
the same suit.
(2) Where causes of action
are united, the jurisdiction of the court as regards the suit shall depend on
the amount or value of the aggregate subject matters at the date of instituting
the suit.”
The joinder of causes of action not only has an effect of reducing the
number of actions but also on who should be parties to an action.
In Mohan Musisi Kiwanuka V Asha Chand SCCA No.
14 of 2002, the appellant had made several unsuccessful applications to
have the Attorney General joined to the main suit on the ground, inter alia,
that it was necessary in order to enable the court to ‘effectually and
completely adjudicate upon and settle all issues involved’. This was never
done. Mulenga, JSC in the lead judgement said that:
“I am
constrained to observe here, that this background demonstrates how undue regard
to technicalities can obscure real issues, to the prejudice of substantive
justice. It is a cardinal principle in our judicial procedure that courts must,
as much as possible avoid multiplicity of suits. Thus it is that rules of
procedure provide for, and permit where appropriate, joinder of causes of
action and consolidation of suits.
Under Order 2 rule 7, it is
provided that:
“Where it appears to the court that any causes of action joined in one
suit cannot be conveniently tried or disposed of together, the court may order
separate trials or may make such order as may be expedient.”
A plaintiff may under order 2 rule 4 CPR join in an action, more than
one cause of action and when the joinder of any cause of action is contested by
the defendant, the plaintiff must justify the joinder or else the objection of
misjoinder will be upheld by court.
Order 2 rule 8 (1) provides that:
“Any defendant alleging that the plaintiff has united in the same suit
several causes of action which cannot be conveniently disposed of together may
at any time apply to the court for an order confining the suit to such of the
causes of action as may be conveniently disposed of together.”
Subrule 2 provides that:
“If, on the hearing of the
application, it appears to the court that the causes of action are such as
cannot all be conveniently disposed of together, the court may order any of
such causes of action to be excluded, and consequential amendments to be made,
and may make such order as to costs as may be just.”
For example, in the case of Christopher Kayabeke V Annes Agaba, the
plaintiff had two causes of action properly
brought before the court. One of them
was the partial action by which he sought court’s protection of his pecuniary
interest in the company and a derivative action by which he sought court’s
protection for the good of the company generally against waste by the
directors. The court rightly entertained the matters and granted appropriate
damages in respect of the two cause of action.
In the case of Metropole Plannacy (U)Ltd V. Katumba (1975)
H.C.B. 61, the High Court held that where there is a misjoinder of causes of action, the plaint could be struck
out under or a separate trial maybe ordered under Order 2 Rule 5 (now 7).
A joinder of causes of action can result in ouster of courts pecuniary
jurisdiction. Where such causes of action are united, the jurisdiction of the
court shall depend on the amount or value of the aggregate subject matter as at
the date of instituting the suit (See Order 2 rule 4(2) CPR).
In the case of Kivamukutesa Consumer’s V. Ssebugwawo (1986)
H.C.B. 61, it was held that
where after consolidation the value exceeds the jurisdiction of the court, such
court should not proceed with a trial after consolidation.
CONSOLIDATION OF ACTIONS AND
TEST SUITS
When actions involving a common question of
law or fact are pending before the court, it may order all the actions
consolidated.
Consolidation of suits will be ordered especially
where,
a)
a common question of law or
fact arises in the actions.
b)
the right to relief arises in
respect of the same transaction or series of transactions.
c)
It is otherwise desirable to
approve the consolidation.
This is provided for under Order 11 rule 1 of the Civil Procedure Rules which provides that:
“Where two or more suits
are pending in the same court in which the same or similar questions of law or
fact are involved, the court may, either upon the application of one of the
parties or of its own motion, at its discretion, and upon such terms as may
seem fit—
(a)
order a consolidation of those suits; and
(b) direct that further
proceedings in any of the suits be stayed until further order.”
Stumberg and another v
Potgieter [1970] 1 EA 323 (HCK)
Editor’s
Summary
Consolidation
of suits under O. 11 of the Civil Procedure (Revised) Rules 1948 should be
ordered where there are common questions of law or fact in actions having
sufficient importance in proportion to the rest of each action to render it
desirable that the whole of the matters should be disposed of at the same time;
consolidation should not be ordered where there are deep differences between
the claims and defences in each action.
Kneller, J at page 327 stated
that:
“A broad principle has emerged from English decisions relating to
consolidation applications. It is this. Where there are common questions of law
or fact in actions having sufficient important in proportion to the rest of
each action to render it desirable that the whole of the matters should be
disposed of at the same time, consolidation should be ordered. Daws v. Daily
Sketch and Sunday Graphic Ltd. and Another; Darke and Others v. Same, [1960] 1
All E.R. 397; Payne v. British Time Recorder Co. Ltd. & Curtis Ltd., [1921]
2 K.B. 1 at p. 16, and Horwood v. Statesman Publishing Co. Ltd., [1929] All
E.R. Rep. 554. And this broad principle I propose to follow, with respect, when
I come to exercise my discretion in this suit.”
The court may also provide in the consolidation
order that the proceedings be tried at the same time or one immediately after
the other.
Consolidation of cases is "permitted as a
matter of convenience and economy in administration, but does not merge the
suits into a single cause, or change the rights of the parties, or make those
who are parties in one suit parties in another. A court has discretion to
consolidate cases under Order 11 rule 1(a) if such consolidation will help it
manage its caseload with "economy of time and effort for itself, for
counsel, and for litigants."
In Teopista Kyebitama V
Damiano Batuma [1976] HCB 295, it
was held that where two or more suits are filed involving the same parties and
arising from the same cause of action they should be either consolidated for
the purpose of determining liability, or only one of them, the first in point
of time, be heard first.
In Isam Fathalrahman v Gulf Commodities (U) Ltd HCT –
00 – CC – MA - 598 – 2012, Justice Kiryabwire
observed that:
“The benefits
of consolidation need not be over emphasized as it will bring final resolution
to the rights of all the parties which multiple suits can never do. Multiple
suits only entrench he dispute in the court system and cause frustration to the
parties and inefficiency in the court.”
See also: Kivamukutesa
Consumers v Sebugwawo (1986) H.C.B. 61.
TEST
SUITS (Order 39 CPR)
Order 39 of the CPR deals with
selection of test suit.
Under Order 39 rule 1, it is
provided that:
“Where two or more persons have
instituted suits against the same defendant and those persons under the
provisions of rule 1 of Order I of these Rules could have been joined as
co-plaintiffs in one suit, upon the application of any of the parties the court
may, if satisfied that the issues to be tried in each suit are precisely
similar, make an order directing that one of the suits be tried as a test case,
and staying all steps in the other suits until the selected suit shall have
been determined, or shall have failed to be a real trial of the issues.”
Rule 2 states that:
“Where a plaintiff has instituted two or more suits, and under
the provisions of rule 3 of Order I of these Rules the several defendants could
properly have been joined as co-defendants in one suit, the court, if satisfied
upon the application of a defendant that the issues to be tried in the suit to
which he or she is a party are precisely similar to the issues to be determined
in another of the suits, may order that the suit to which the defendant is a
party be stayed until the other suit shall have been determined or shall have
failed to be a real trial of the issues.”
The applicability of these
provisions is based on the principles governing joinder under Order 1 rules 1
and 3 of The CPR.
In Magombe V Uganda, Constitutional
Application 31 of 2013, Kiryabwire, J.A stated as follows:
“Who then may be joined as parties to an action
before a Court? Order 1 rule 1 of the CPR read with the necessary modifications
(to reflect Petitioner or applicant) provides
“…All persons
may be joined in one suit as plaintiffs in whom any right to relief in respect
of or arising out of the same act or transaction or series of acts or
transactions is alleged to exist, whether jointly, severally or in the
alternative, where, if those persons brought separate suits, any common
question of law or fact would arise…”
Applying the necessary modification to that rule to
apply to a petition and application in this situation the test for here for a
person to be a party is “…any right to relief in respect of or arising out of the same act or
transaction or series of acts or transactions is alleged to exist…”
This test is important to avoid a scenario of
misjoinder.”
See
also: Theresa Okoth Ofumbi & another v Haji Hamedali Ahmed Karim (SC
Civil Appeal No.24B Of 1992)
Parties can be joined as
defendants if the plaintiff’s right to relief against them arises out of the
same transaction (Abdalla v Abdu [1977]
HCB 244) or where common questions of law would arise if separate suits
were brought against each of them (Sempa
Mbabali v Kidza (1985) HCB 46,47).
CASE EXTRACTS
JACKSON
THUO MWANGI V PATRICK KIARIE NJOROGE [2005] eKLR
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
Civil Case 1471 of 1999
JACKSON THUO MWANGI
…………………....……………………….PLAINTIFF
VERSUS
PATRICK KIARIE NJOROGE
……………………………………..DEFENDANT
RULING
1: PROCEDURE
1. TEST
SUIT
Where a motor vehicle accident occurs involving
several passengers and defendants, it is always advisable for the defendants to
file a TEST SUIT application staying all other suits pending the
determination of the issue of liability. The plaintiff can also make
application for a representative suit to be heard where there are several
plaintiff.
2. In this case, the plaintiffs who were involved
in a motor vehicle accident that occurred as a result of a collision between
the vehicle they were travelling in and an oncoming vehicle, filed for an
application for a test suit be used and to be tried in the principal
magistrates Court case 3108/98 at Milimani Commercial Courts. This
application as heard in Misc. civil application No.486/02 on 22 May 2002
(Hayanga J). The effect of the order issued under suits were stayed
pending the finalization of the TEST SUIT in the subordinate courts.
3. The trial magistrate heard the test suit together
with the main suit on quantum in Nairobi PMCCC 3108/98 on 16 May 2002. In
that decision the trial magistrate held the defendants M/s Mainyo Investment
Ltd and Patrick Kiarie Njoroge liable for the accident. He held that the
third party M/s Kenblest Ltd was not liable for the accident. The
judgment was brief but I believe this is the interpretation of it.
II: APPLICATION.
4. By an application dated the 30 August 2002, the
third party now applies to be discharged from all the pending suit where they
had been sued and or joined as third party.
5. I have had the
opportunity to read the pending files in the subordinate courts at
Milimani. I have also confirmed through the third party applicant that
all advocates concerned had been served with the application in question.
There has been no opposition.
6. I accordingly discharge
the third party Applcition M/s Kenblest Ltd and or their agent and servants
from the suit in question according to the judgment in PMCCC3108/98 as ad with
Misc. Civil appeal 486/02.
7. That the suits in
question being:-
Nairobi PMCCC3108/98
Nairobi Hccc 1471/98
Nairobi Hccc2144/98
Nairobi Hccc 1883/00
Nairobi PMCC 3109/98
Judgment on liability
incorrect at 95%:5%
and cannot stand.
Nairobi PMCC 1903/98
Nairobi RMCC 400/01
And or any
suit that may be filed or is pending and not mentioned above. This order
is to be field in respective files. The files be returned to the
respective courts to proceed on quantum thereafter.
The costs of
this application be in the cause.
Dated this 9th
Day of November 2005 at Nairobi.
M.A. ANG’AWA
JUDGE
Enonda,Makoloo,Makori & Co. Advocates for the
plaintiff
Mereka & Co. Advocates for the 1st
and 2nd defendant
P.N.
MASHRU LIMITED V THE HON ATTORNEY GENERAL [2005] eKLR
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 3534 of 1995
P.N. MASHRU LIMITED ……………………..……………….………….PLAINTIFF
VERSUS
THE HON ATTORNEY GENERAL
…………………………………DEFENDANT
JUDGMENT
A: PROCEDURE
1. Arising out of the famous prison motor vehicle
accident collision between two vehicles that involved several other cases the
Attorney General did not apply under Order 37 CPR of stay of proceedings until
the issue of liability between the parties was decided. Instead
other suits were settled on the issue of liability. The Attorney
General field his defence late in this particular case but Mbito (J) (as he
then was) permitted the attorney General to proceed dismissing the claim to
strike out the defence. Earlier Kuloba J (as he then was) allowed the
withdrawl of the application to enter judgment against the defendant 926.1.96).
2.
Delay
2.1 The delay of this suit was
occasioned when the parties failed twice to appear before Njai (PDR) (as
he then was) for summons for directions. Eventually the rules committee
did away with summons for Direction. The parties failed to file their
list of documents under Order 10 r 11 (a) CPR and file and read issue.
The case was taken out of the call over list of 18.12.02.
2.2. On the 23
July 2003 both the plaintiff and defendant through their advocates field a
consent letter dated 1.3.03 on the 22.7.03. On the next day the deputy registration
through the ministerial powers given under order 48 CPR recorded the said
consent which prayed that liability against the Attorney General be at 100%.
2.3 The suit was to proceed for
assessment of damages. It was taken out of the list:-
i. On 2.10.03 as I was out of the country.
ii. On 15.3.04 as the key witness was bereaved
iii. On 31.3.04 the parties intended to settle the matter.
iv. On 12.05.05 the state was unprepared
v. The suit finally went to trial on 19.5.05.
B. BACK GROUND OF THE
SUIT.
3. On the 1.12.1994 the plaintiff M/s P.N. Mashru Ltd
who owned a motor vehicle registration KAB 438Y which was duly being driven by
its authorized driver along the Ruaraka Thika road, had this vehicle
damaged as a result of a prison motor vehicle colliding into it. The
prison vehicle was travelling on the opposite side and on its own dual carriage
way. The vehicle lost control and left its side of the dual carriage way veered
across the grass verge separating the two dual carriage way and collided onto
the plaintiffs motor vehicle KAB 438Y.
C) LIABILITY
4. As a result of the
accident many, I believe, were injured fatally. The cause of the accident
appears to be the prison vehicle being over loaded, it had worn tyres and break
failures. The Attorney General entered into consent on liability in cases
filed by other parties at 100%. As stated earlier what the Attorney
General ought to have done is to have filed an application under order 37
to have the court decide, in a test suit, on the issue of liability. The
Attorney General finally conceeded in this matter to enter into a consent on
liability at 100%.
b) Assessment of Damages
5. The issue left for determination is the
assessment of damages. The effect of the liability at 100% is that
judgment on liability is final but under order 9a r 5 CPR the suit must
be placed down for hearing on the aspect of assessment of damages.
6. The damages in tort claimed lies in material
loss. The plaintiffs vehicle was damaged and they now wish to claim for
the refund of the sum of money used. The advocate stated that it is a
claim under subrogation. They claim the costs of assessment of damages
and medical expenses.
In short, as pleaded:-
a) Pre accident value of motor
vehicle Ksh.2,350,000/-
Later amended to
read
Ksh. 2,122,500/-
b) Costs of assessment of
damages
Ksh. 48,085/-
c) Medical expenses for
driver and turn boy Ksh.415,636.10
Total
cost
Ksh.2.586,241/10
d)
Loss of user
Ksh.50,000 from 1.12.94 to judgment
This was later amended to be from 31.12.94 to 31.3.95
Namely, 186 days x 50,000
=
Ksh.9.100,000/-
Total claim
Ksh.11,638,136/-
Actual figure
being
Ksh.11,686,241/00
7. During the formal proof, the plaintiff surprisingly
only called one witness called David Olinyo Masai, a representative of the plaintiff
who is employed as a claims manager. He informed this court
that the vehicle in question was used by his company to transport goods
to East and Central Africa from Mombasa. The company had over 400 fleet
vehicles. The motor vehicle in question KAB 438Y was a 23 ton
vehicle. The vehicle had been insured by KenIndia and a private
investigator/loss assessor appointed by KenIndia to prove loss. He then
produced a discharge voucher (Ext. P1) of Ksh.2.193,500/- representing
the sum paid to them. A sum of Ksh.100,000/- in access was paid.
ii)
Material Loss Claim
8. To prove a claim for
subrogation both the plaintiff and the representative of the Insurance company
must appear to court to give evidence unless the parties by consent disperse
with the attendance of the insurance company and put only the documentary
evidence of the insurance company in. I have seen instances in the
magistrate’ courts where only the representative of the insurance company comes
to court alone. This indeed is not in order even where an interlocutory
judgment has been entered.
There must be a plaintiff
In this case, the absence of the
representative of the insurance comp any to give information on the
claim and to state they are asking for a subrogation claim through the
plaintiff is effectively crucial and important. The plaintiff cannot
again wish to be paid as they have already been paid. The representative
of the insurance company would tender their payments made and receipts received
for such payment from the other party. Proof of payment of taxes such as
VAT, is essential that would be reflected in their documents.
C (ii) Assessment of Damages
9.
The plaintiff has shown that they have been paid
Ksh. 2,122,520/-. This sum has to have
proof of the:-
a)
Pre accident value
b)
Less salvage to give the material loss claim.
Where repairs has been under taken alone the
assessors should come to tender his assessment report to show the total costs
of repairs. The document by the assessors would outline all the damage
made to the vehicle and each costs to replace the damage of the spare
parts. This report should demonstrate that the cost of the repairs is
less than the value of the car. If the value is more to repair the
vehicle would be termed as a “write off”.
No such representative had been called to give
evidence nor was a report tabled to this court. It is unclear what the
meaning of “costs of assessment of damages K.shs.48,085/-“. I can only
guess that this perhaps may either be the total costs of damages assessed on
the vehicle or alternatively the fee the assessor was changed.
C (ii) Medical Expenses
10. A claim in the amended plaint was made
for the sum of K.Shs.415,636/10 being medical expenses the company used
to pay for the driver and turn boy. The driver and turn boy are not party
to this suit. Their names are not disclosed. Both failed to attend
court to give evidence that they sustained injuries, were treated and
discharged. That they are to state that their employer paid their
hospital bills. The representative of the plaintiff would then give
evidence to state that they claim a refund of this sum by way of a subrogation
claim. It is also unclear whether the driver and the turn boy filed their
separate suit under common law for general damages for pain and
suffering. A medical doctor was not called to prove the particulars of
injuries, not pleaded.
11. From the foregoing, I find
that the plaintiff has failed to formally prove the damages that has occurred
in Tort against the defendant. If asked for the possible award, only
Khs.212,252.01 would have been made.
12. I now turn to the claim for
loss of user.
Originally the plaintiff claimed loss of user of
the said motor vehicle from 1st December, 1994 to the finalization
of this suit. After trial the advocate for the plaintiff conceded that
the vehicle was back on the road. It was unserviceable from 31.12.94 to
the 31.3.95 (I believe 31.12.94 may have been a typographical error).
This is 4 months. The plaintiff states that it requires Kshs. 50,000/-=
per day. According to the calculation by the plaintiff this is 186 days
at 50,000/= per day giving a sum of Ksh.9,100,000/- actually claimed. The
state argued that the plaintiff had 400 vehicles. One vehicle not being
used would make no difference. I am of the opinion that it is a right,
for the plaintiff, to claim the loss of user for the days the vehicle is
unserviceable no matter how many other vehicles they may have. The actual
fact that comes out is an accident occurred. The vehicle having been
damaged was unserviceable until 31.3.95. This is a total of 4
months or 120 days (121 days). The amount of income it was making of
K.Shs.50,000/= would give a sum of K.Shs 6 million. It is not always that
a vehicle would be on the road 24 hours. There are times it would go for
service and times when there would actually be no work for the vehicle.
Eventualities have to be taken into place. I hereby note that the
plaintiff has not fully established loss of user but is entitled to it by law –
such a situation requires that norminal damages be awarded. I do so
at Ksh. 3 million.
I accordingly enter judgment on the norminal
damages claim that the court found established.
In summary
10.1 Accident between
two vehicles
10.2 Material
loss claim
10.3 Liability 100% against the
defendant Deputy Registrar recorded consent (upon reading letter dated 1.3.03
and filed on 22.7.03) on the 23.7.03 through ministerial powers given under
order 48 CPR.
10.4 Quantum
I: Special Damages Claim
a) Pre accident value of
vehicle Ksh.2,350,000/-
Nil dismissed later amended to read
Ksh.2.122.520/-
c)
Costs of assessment of damages of Ksh 48,085/-
Nil dismissed
d)
Medical expenses for driver and
turn boy
Ksh.415,636/10
Nil dismissed
e)
Loss of user
Ksh.50,000 from 1.12.94 to judgment
Later amended to 31.12.94 to 313.95
186 days @
50,000/-
Ksh.9.100.000/-
actual total figure
claimed Ksh.11,638.136/-
Ksh.11.86.241/00
Court
awards
Ksh.3.000,000/-
Norminal damages under
head of loss of
user
_____________
Total
awarded
Ksh.3 million
The court
awards interest form the date of filing suit. The costs of the suit to be
awarded to the plaintiff.
Dated this 25th
day of May 2005 at Nairobi.
M.A. ANG’AWA
JUDGE
J.M. Mburu & Co. advocates for the plaitnfif
State Counsel for the Attorney-General
TALIB
HAJI HAMIDI ALI V AKAMBA PUBLIC ROAD SERVICES LTD [2006] eKLR
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERICHO
Civil Case 19 of 2003
TALIB HAJI HAMIDI ALI (Suing
as legal representative and administrator
of the estate of
Hassan Talib Hamid Ali) ... ……………………..PLAINTIFF
VERSUS
AKAMBA PUBLIC ROAD SERVICES
LTD……........................DEFENDANT
RULING
By a chamber summons dated the 17th of
December 2004 made under the provisions of Order 1 Rule 10 (2) and 13 of the
Civil Procedure Rules and Section 3A of the Civil Procedure Act,
the defendant has sought the order of this court to strike out its name from
the suit. The defendant alternatively prayed that the suit against it be
struck out. It also prayed for costs to be awarded to it. The
grounds in support of the application are that the defendant contends that it
was wrongly or improperly joined as a defendant in the suit. It stated
that it had been absolved from liability for the occurrence of the accident
which was the subject matter of the suit. It stated that the continued pendency
of the suit was prejudicial to the defendant because a decision had been
rendered in a test suit, the subject matter of the present suit. The
application is supported by the annexed affidavit of Joseph Oloo the Traffic
manager of the defendant company.
The application is opposed. The plaintiff has
filed grounds in opposition to the application. He states that the
plaintiff was not a party to the test suit which rendered a decision at Nairobi.
He states that the plaintiff properly sued the defendant in the suit. He
further stated that the proceedings in respect of the test suit were stayed
pending the hearing of an appeal to the Court of Appeal. He further
stated that the plaintiff would be prejudiced if the name of the defendant is
struck out as the defendant in the suit.
At the hearing of the application, I heard the
submissions made in support of the application by Mr Ngechu on behalf of the
defendant. Mr Motanya who had been instructed to hold brief for the
plaintiff declined to make any submissions either supporting or opposing the
application. I have carefully considered the said submissions made by the
defendant. I have also read the pleadings that were filed by the parties
to this application. The issue for determination by this court is whether
the defendant has established a case to enable this court grant the application
sought. Certain facts are not in dispute in this case. It is not disputed
that motor vehicle registration No.KAE 283D wherein Hassan Talib Hamid
Ali(deceased) was traveling as a fare paying passenger was involved in an
accident with motor vehicle registration No. KAJ 779R. Motor vehicle
registration No.KAE 283D is owned by the defendant. The said Hassan Talib
Hamid Ali was fatally injured during the accident.
The plaintiff in this case sued the defendant on
behalf of the estate of the deceased. The plaintiff did not however sue
the owner of motor vehicle registration No.KAJ 779R. It is apparent from
the affidavit sworn by the defendant that several suits were filed subsequent
to the said accident. The suits were referred to the then Chief Justice
Bernard Chunga who directed that one of the suits be heard as a test suit on
the issue of liability. The suit which was appointed to be heard as test
suit was Nairobi HCCC No.63 of 2001 Consolata Akinyi vs
Akamba Public Road Services Ltd & Anor. After hearing the test
suit, Angawa J, found that the owner of the motor vehicle registration No.KAJ
779R was solely liable for the accident involving the two motor vehicles.
She however ordered that all the proceedings in respect of the claims filed
arising out of the said accident be stayed pending the hearing of an appeal to
the Court of Appeal.
A notice of appeal was filed. From the submission
made before court it is apparent that the appeal has not been heard and
determined by the Court of Appeal. In my opinion therefore, the defendant
prematurely filed the present application. This is because there is a
possibility that the decision of Angawa J, may be overturned by the Court of
Appeal. There is also a possibility that the decision would be affirmed.
Due to that uncertainty this court cannot grant the application sought by the
defendant. In any event, the defendant is a necessary party to the
proceedings herein whether or not the defendant will ultimately be found to be
liable. This is because the deceased on whose Estate this suit has been
brought on behalf was a passenger in a motor vehicle owned by the
defendant. Whatever the circumstances of the accident, the plaintiff was
within his rights to sue the defendant as a necessary party.
I think the course of action that the defendant
should have taken was to take third party proceedings against the owner of
motor vehicle registration No.KAJ 779R. Such application for third party
proceedings was made by the defendant but unfortunately the same has not been
canvassed. Due to costs implications, it would only be right that the
defendant remains as a party to this suit. The owner of the motor vehicle
registration No.KAJ 779R should be joined as a third party to these
proceedings. Notwithstanding the finding of the court which heard the
test suit, I do hold that the defendant is a proper party to this suit.
In the premises therefore, I do hold that the
application filed by the defendant and dated the 17th of December
2004 lacks merit and it is hereby dismissed with costs.
DATED at KERICHO this 2nd day of November, 2006
L. KIMARU
JUDGE
LIMITATION OF ACTIONS
One of the most important tasks which an advocate
needs to undertake when a client is giving instructions or the details of his
or her claim is to ascertain when the relevant limitation period will
expire. This assists the advocate in
determining when he may file the necessary court documents. Whenever an action is brought out of time,
the defendant will have a defence of limitation which can be raised at any
stage of the proceedings.
Meaning of Limitation
The limitation period is a time limit during which
an action may be brought. Thereafter, the potential plaintiff is barred and may
no longer bring an action.
The justification for limitation is that potential
defendants should not indefinitely have to live with the risk of legal action
if for one reason or another, the potential plaintiff does not pursue his or
her remedy. Additionally, old actions
are difficult to try when memories are crowded and evidence has been probably
lost.
Statutes of limitation are in their nature strict
and inflexible enactments. Their
overriding purpose is that litigation shall be automatically stifled after a
fixed length of time irrespective of the merits of a particular case.
The
logic behind statutes of limitation was stated in the case of Birkett v James [1977] 2 All ER 801 by
Lord Edmund-Davies between pages 815 – 816 as follows:
“Statutory provisions imposing periods of limitation
within which actions must be instituted seek to serve several aims. In the
first place, they protect defendants from being vexed by stale claims relating
to long-past incidents about which their records may no longer be in existence
and as to which their witnesses, even if they are still available, may well
have no accurate recollection.
Secondly, the law of limitation is designed to
encourage plaintiffs to institute proceedings as soon as it is reasonably
possible for them to do so...
Thirdly,
the law is intended to ensure that a person may with confidence feel that after
a given time he may regard as finally closed an incident which might have led
to a claim against him...
The legislature must be taken to have sought—and
achieved—a proper balance between all these competing interests in enacting
that, if actions are to be heard at all, they must be instituted within the
various specified periods from the accrual of the cause of action.”
The Limitation Acts in Uganda are the Limitation
Act cap. 80 and the Civil Procedure and Limitation (Miscellaneous provisions)
Act cap 81. These laws impose a time
limit upon an existing right of action.
Basic principles of
limitation
The determination of when time begins to run
depends upon the date on which the cause of action arises and the nature of the
cause of action. In case of a right
which is actionable without damage being suffered, such as a contract, a cause
of action will arise as soon as the breach occurs. The notion of actionable
damage was reiterated by the House of
Lords in the case of Johnston
(Original Appellant and Cross-respondent) v. NEI International Combustion Limited (Original Respondents
and Cross-appellants) [2007] UKHL 39. Lord Hoffman, delivering the leading judgment noted
that:
“Some causes of action arise without proof of
damage. Trespass and breach of contract are examples. Proof of the trespass or
breach of contract is enough to found a cause of action. If no actual damage is
proved, the claimant is entitled to nominal damages. But a claim in tort based
on negligence is incomplete without proof of damage. Damage in this sense is an
abstract concept of being worse off, physically or economically, so that
compensation is an appropriate remedy. It does not mean simply a physical change,
which is consistent with making one better, as in the case of a successful
operation, or with being neutral, having no perceptible effect upon one’s
health or capability.”
The identification and classification of the cause
of action can be of vital importance with regard to limitation since cause of
action is the basic concept in determining the limitation period.
For a cause of action to arise for limitation
purposes, there must be competent parties i.e. there must be a plaintiff who
can succeed and a defendant against whom the plaintiff can succeed.
According to HALSBURY’S LAWS OF
ENGLAND, 4 Edition Vol. 28 para 622, it is stated thus:-
“Apart from any special provision, a cause of action normally
accrues when there is in existence a person who can sue and another who can be
sued, and when there are present all the facts which are material to be proved
to entitle the plaintiff to succeed.”
In Bernard Tumuhimbise & Others v Attorney
General & Another HC Civil suit No. 778 of 2003, it was held that:
“Once a cause of action has
accrued, for as long as there is capacity to sue or be sued by the parties,
time begins to run as against the plaintiff, and the provisions of the Civil Procedure and Limitation
(Miscellaneous Provisions) Act as to limitation apply mutatis mutandis.”
See also: Lubowa V Makerere University SCCA No. 2 of
2011 regarding the need for all facts necessary for the plaintiff to
sue being present.
At common law, if a potential plaintiff is an enemy
alien, no cause action can arise since he has no standing to bring his or her
action but as soon as he ceases to be an
enemy alien, then he may bring an action within the time required.
Effect of an action which is
statute barred
When a plea of limitation is available to the
defendant, it constitutes a substantive right which should not be taken away
from him or her (See: Order 6 rule 6 and Order 7 rule 6 CPR).
In the case of John Oitamong v Mohammed Olinga [1985] HCB 86, Odoki J (as
he then was). held that:
“Limitation is basically a defence. It is a shield but
not a sword. It simply means that the extinction of stated claims, and rights
of action are limited in point of time and are lost if not pursued within due
time. The doctrine of limitation differs from the doctrine of acquiescence
although both have more or less similar effects. Acquiescence seems to be an
aquitable doctrine developed by the Courts to temper the rigidity of the law
and is depended on the rule of estoppel. The doctrine of estoppel prohibits a
party from proving anything which contradicts his previous acts as a
declaration to the prejudice of a party who relying upon them has altered his
position. Both acquiescence and limitation destroy the former owners right
remedy. It is now well established that the limitation Act applies to actions
for recovery of land under customary tenure.”
In the case of Mpiima
v AG (1990-91) II KALR 55 at 57, the court held that court can in its
discretion take cognisance of the fact of Limitation even if it is not pleaded
in the Written Statement of Defence.
It is this basic attitude that underpins the policy
which gives rise to the principle that ‘once statute barred always statute
barred’.
See: Arnold
v Central Electricity Generating Board [1988] AC 228; Western Highland Creameries Ltd & Another v Stanbic Bank (U) Ltd
& 2 Others (HCCS 462 of 2011- Comm. Ct)
Under
Order 7 rule 11(d) CPR, a plaint shall be rejected where the suit is barred by
limitation.
In Uganda Railways Corporation v Ekwaru D.O AND
5104 Others, CA No. 185 of 2007 (CA); [2008] ULR 319, it was held that
if a suit is brought after the expiration of the period of limitation, and this
is apparent from the plaint, and no grounds of exemption are shown in the plaint,
the plaint must be rejected.
Time set by a statute of limitation cannot be
extended by court.
See: NSSF v
Joseph Byamugisha T/A Byamugisha & Co. Advocates HC CIVIL APPEAL NO 13 OF 2013
regarding extension of time fixed by statute; Moses K Katuramu v
The Attorney General and Another [1987] HCB 24, regarding being confined in
prison and s.8 of the Civil Procedure and Limitation (Misc. Provisions Act); Waibi v Byandala [1982] HCB 28 regarding
exemption from limitation in the case of beneficiaries.
H J Stanley & Sons Ltd v
Said Nasoor Zahor [1963] 1 EA 564 (High Court of Tanganyika at Dar-Es-Salaam)
The plaintiff sued the defendant for Shs. 45,896/19
as the balance found due by the defendant on accounts stated orally on or about
December 30, 1960, or, alternatively, as the balance of the price of goods sold
and delivered and damages for breach of contract. The plaint averred that the
defendant by letter dated August 1, 1961, had admitted the claim and hence the
claim was not time barred. The defendant denied that the letter was an
acknowledgment of liability within s. 19 of the Indian Limitation Act, 1908,
and took a preliminary objection that the action was time barred. The plaintiff
submitted that the action was not time barred on three grounds, namely, that
there was an acknowledgment of liability under s. 19, that the action was
founded on accounts stated under art. 64 and that the action was in respect of
a mutual, open and current account under art. 85 in the First Schedule of the
Act. It was held that:
(i) as
there was no averment in the plaint that the action was in respect of a mutual
open and current account, the plaintiff company was debarred from alleging the
existence of such an account, and accordingly art. 85 was not applicable;
(ii) in
the defendant’s letter of August 1, 1961, there was no admission of
indebtedness either for the amount claimed by the plaintiff in his letter of
demand or of any sum whatsoever; the letter could not be construed as anything
more than an acknowledgement that there had been a course of trading between
the parties; accordingly s. 19 of the Indian Limitation Act was not applicable;
(iii) where
accounts have not been stated in writing and signed, art. 64 is not applicable.
Dukhi Sahu v. Mohamed Bikhu (8) applied;
(iv) an
oral adjustment of accounts gives rise to a cause of action and an action on
the oral adjustment is governed by art. 115 of the First Schedule to the Indian
Limitation Act, 1908. Jalim Singh v. Choonee Lal (9) applied;
(v) the
plaintiff was entitled to invoke art. 115 as furnishing a cause of action in
this suit and accordingly the action was not prima facie time barred.
Running of time and
commencement of actions
Once an action has accrued, as a general rule time
begins to run provided that there are both competent plaintiff and
defendant. The
position of the law as was stated in in F.X Miramago v. Attorney General [1979] HCB
24 is that the period of limitation begins to run as against a
plaintiff from the time the cause of action accrued until when the suit is
actually filed, and not when service of the notice is effected.
In
Madhvani
International S.A v Attorney General, C.A. Civil Appeal No. 48 of 2004,
it was held that it is the legal position that when a court is considering
whether a suit is time barred by any law or not, it looks at the pleadings only
and no evidence is required.
The limitation of actions removes a plaintiff’s
remedy and in some cases, his right at a fixed period of time from the
accretion of the cause of action. This
therefore requires precise rules for calculation of the period.
In addition sec. 38
(1) (b) of the interpretation Act excluded a Sunday or a public holiday of they
came at the end of the limitation period.
As a general principle, the courts will disregard
parts of the day in calculating the expiry of the limitation period.
When the plaintiff pleads facts from which
reasonable inferences can be made that the suit is not time barred, then the
issue of limitation becomes a triable issue which should be tried and determined after hearing
the evidence on the matter as it was held in the case of SAYIKO MUROMA V YOBAN KUKU (1985)
H.C.B. 68.
DEFENCES TO LIMITATION
The defences to limitation are available to any
party who has been caught by the limitation period.
Order 7 rule 6 of the CPR provides that:
“Where
the suit is instituted after the expiration of the period prescribed by the law
of limitation, the plaint shall show the grounds upon which exemption from that
law is claimed.”
This provision was
considered in the case of Mulindwa v
AG [1985] HCB 68. However in Katuramu
v AG [1986] HCB 39, the Court of Appeal was of the view that failure to
plead disability in a plaint but in reply to a defence can still be considered.
The court’s reasoning was that a reply to a written statement of defence was
part of the plaint and could therefore cure an otherwise barred action.
Disability
One of the main defences to limitation is
disability. According to section 21 of
the Limitation Act, if on the date when any right of action accrued for
which a period of limitation is prescribed by this Act the person to whom it
accrued was under a disability, the action may be brought at any time before
the expiration of six years from the date when the person ceased to be under a
disability or died, whichever event first occurred, notwithstanding that the
period of limitation has expired.
Under sec 1(3) of the limitation Act, a
person shall be deemed to be under a disability while he or she is an infant or
of unsound mind.
Cross refer to: section 5 of the Civil Procedure
and Limitation (Miscellaneous Provisions) Act.
Infancy is another word used to mean a minor. The
Constitution (art. 257) and the Children Act, Cap. 59 (sec. 2) provide that
children are persons under the age of 18.
A person is of unsound mind
if he or she is by reason of a mental disorder incapable of managing and
administering his property affairs.
Under section 1(4) of the Limitation Act, a person shall be conclusively presumed to be of
unsound mind while he or she is detained in pursuance of any enactment
authorising the detention of persons of unsound mind or criminal lunatics.
See:
Section (1) (f) of the Mental Treatment Act, Cap. 279 and section 113 and 117
of the Magistrates Courts Act, Cap. 16.
EFFECT OF DISABILITY
Disability does not prevent the person affected
from bringing or defending an action although he or she may not do so on his or
her own behalf. In case of a plaintiff
who suffers from disability, the action will be by a next friend as provided
under Order 32 rules 1 and 2 and in case of a defendant suffering from a
disability by a guardian ad litem as provided under Order 32 rule 3. Refer to
Order 32 rule 15 CPR for the extension of these provisions to persons of
unsound mind.
Where any right of action has accrued for which a
period of limitation is prescribed, the person under disability may bring an
action within 6 years after ceasing to be under disability. However, section 21(2) of the Limitation Act
provides that:
“In
the case of actions for damages for
negligence, nuisance or breach of duty (whether the duty exists by virtue
of a contract or of provision made by or under an enactment or independently of
any contract or any such provision), where the damages claimed by the plaintiff
for the negligence, nuisance or breach of duty consist of or include damages in
respect of personal injuries to any person—
(a) subsection (1) shall have effect as if for the
words “six years” there were substituted the words “three years”.
If the plaintiff is not suffering from a disability
when the cause of action arises, any subsequent disability will not suspend the
running of time. In addition where the
plaintiff suffers from a disability when his right of action accrues, ceases to
do so but then becomes disabled again, time begins to run as soon as the
disability ceases and its subsequent recurrences do not prevent time from
continuing to run as was held in the case of Kirby v Leather [1965] 2 All ER 441; [1965] 2 Q.B. 367.
In case of Joweria Namaganda V A.G. (1996)2 KALR 83
Court held that disability is a triable issue requiring both parties to the
suit to bring necessary evidence in order to resolve the issue of whether or not there existed
disability.
ACKNOWLEDGEMENT
Acknowledgment by the
defendant to the plaintiff’s right will revive a cause of action. Under section 22 of the Limitation Act, where
any right of action has expired, it may be revived by the acknowledgment of the
rights of the plaintiff.
The learned editor of Rustomji on Indian Limitation
Act (5th Edn.), says at p. 303:
“Acknowledgment of merely part of debt: In case of
a debt there must be a clear and unambiguous recognition of an existing debt or
a part of it, or of a subsisting relationship of debtor and creditor. If some
debt is acknowledged it is immaterial that the correctness of the amount
claimed is disputed in the acknowledgment. An acknowledgment that some money is
due is sufficient to take the case out of the statute as to all that is due. The
acknowledgment may be sufficient though it omits to specify the nature of the
right, but there must be a definite acknowledgment. The acknowledgment need not
be expressed but it must be made under circumstances from which the court can
infer that the liability was subsisting at the time of the acknowledgment.”
The learned editor of Chitaley and Rao (1938 Edn.),
has this to say at p. 669:
“Acknowledgments of liability with reference to
portion of claim made by the plaintiff effect: The section will only apply to a
case if it is shown that the acknowledgment of liability relied on relates to
the right claimed in the suit. Hence, where an acknowledgment of liability is
made only with reference to a portion of the claim put forward by the
plaintiff, such acknowledgment will save limitation only with regard to such
portion and not with regard to the entire claim of the plaintiff.”
At p. 650 of the same work it is said:
“An acknowledgment of liability necessarily implies
a knowledge on the part of the person alleged to make the acknowledgment that
he is admitting something . . . Hence, in considering
whether certain words amount to an acknowledgment of liability it must be seen
whether at the time of writing them the writer had in his mind the question as
to his liability . . . it is clear that whether a document
contains an acknowledgment of liability depends purely on the terms of the
document and their construction by the court. Where on a reasonable
construction of a document it contains an express or implied admission by the
author of the document of a subsisting liability the document will operate as
an acknowledgment of liability under this section. Where the document does not
contain such an admission it will not amount to an acknowledgment under the section.”
The theoretical basis of the development of the
concept of a promise to pay on the fact of acknowledgement of the plaintiff’s
rights is that if the acknowledgment has been made in circumstances from which
no promise to pay will be inferred, time will continue to run
uninterrupted. The law further provides
in section 23(1) that any such acknowledgement shall be in writing and signed
by the person making the acknowledgement.
When a plaintiff has a claim which is statute
barred and he intends to rely upon the defendant’s acknowledgment, the
acknowledgement should be pleaded in his plaint or statement of claim. However, for a plaintiff to plead
acknowledgment, it is prudent that the defendant should plead the limitation
defence in his or her pleading.
PART PAYMENT
This is also provided for in section 22 of the
Limitation Act. Payment may be made in both money and money’s worth. Subsection 4 states that:
“Where any right of action has accrued to recover any
debt or other liquidated pecuniary claim, or any claim to the personal estate
of a deceased person or to any share or interest in it, and the person liable
or accountable therefor acknowledges the claim or makes any payment in respect of the claim, the right shall be deemed to
have accrued on and not before the date of the acknowledgment or the last
payment; but a payment of a part of the rent or interest due at any time
shall not extend the period for claiming the remainder then due, but any
payment of interest shall be treated as a payment in respect of the principal
debt.”
In the case of Scilendra
Overseas Ltd v The Government of Sri Lanka (1977)1 K.LR. 565, court noted
that where a defendant admits to a claim in part but disputes the rest and
makes payment of the sum admitted, this is taken to be a part payment of the
total of the whole claim. Therefore, the
part payment made in this case was not in respect of the whole claim but in
respect of the disputed balance.
LIMITATION
AGAINST GOVERNMENT AND SCHEDULED CORPORATION.
Section 3 of the Civil Procedure and Limitation
(Miscellaneous Provisions) Act provides that:
“(1) No action
founded on tort shall be brought against—
(a)
the Government;
(b) a
local authority; or
(c) a
scheduled corporation,
after
the expiration of two years from the date on which the cause of action arose.
(2)
No action founded on contract shall be brought against the Government or
against a local authority after the expiration of three years from the date on
which the cause of action arose.”
It should be noted however, that the Law governing
limitation against government and other related institutions is silent on the
principle of acknowledgement or part payment.
In National
pharmacy Ltd V. K.C.C. 1979 H.C.B. 256 the Court in resolving this
issue noted that a special Act prescribing time limit within which to bring
actions against government, Local authorities and scheduled corporations was
silent with regard to section 23 of the Limitation Act which provided for
acknowledgment or part payment.
FRAUD
Section 25 of the Limitation Act states that:
“Where, in the case of any action for which a period
of limitation is prescribed by this Act, either—
(a)
the action is based upon the fraud of the defendant or his or her agent or of
any person through whom he or she claims or his or her agent;
(b)
the right of action is concealed by the fraud of any such person as is
mentioned in paragraph (a) of this section; or
(c)
the action is for relief from the consequences of a mistake, the period of
limitation shall not begin to run until the plaintiff has discovered the fraud
or the mistake, or could with reasonable diligence have discovered it; but
nothing in this section shall enable any action to be brought
to
recover, or enforce any charge against, or set aside any transaction affecting,
any property which—
(d)
in the case of fraud, has been purchased for valuable consideration by a person
who was not a party to the fraud and did not at the time of the purchase know
or have reason to believe that any fraud had been committed; or
(e) in
the case of mistake, has been purchased for valuable consideration,
subsequently to the transaction in which the mistake was made, by a person who
did not know or have reason to believe that the mistake had been made.”
The question of what amounts to reasonable
diligence was considered as being what the plaintiff ought to do. The plaintiff is not required to do
everything possible but only do what an ordinary prudent person would do in
regard to all circumstances in an action for fraud. Such case must be wholly
based on fraud. An action is based on
fraud for this purpose when and only when fraud is an initial element of the
plaintiff’s claim.
In Kampala Bottlers V
Damanico U Ltd S.C.C.A. No.22/92, the court noted that fraud
must be attributable either directly or by necessary implication to the person
sued and such person must be guilty of some fraudulent act or must have known
of such act by somebody else and taken advantage of such act.
CONCEALMENT
The notion of concealment by fraud extends to any
case where the defendant may be said to have acted dishonestly and
unconscionably and this can include a situation where the wrongful act is
committed cunningly. In addition
deliberate commission of wrong in which it is unlikely to be discovered for
some time amounts to deliberate concealment.
In the case of Shaw V. Shaw (1954) 2 Q.B 429 court
noted that the mere silence by a defendant can equally amount to concealment.
MISTAKE
This goal for extending the limitation period on
account of mistake has not been properly resolved in the courts of Law. It is necessary to distinguish cases where
both parties are mistaken from those where only one party is mistaken. In the former case, time will begin to run as
soon as the mistake takes effect and in the latter case time will not run until
the party seeking to set aside the transaction has knowledge of the mistake.
NEGOTIATIONS
When parties to an action are in negotiation, it
does not stop the time from running and the parties should act prudently by
lodging the case as they are negotiating.
In the case of Peter Mangeni Trading as Makerere Institute
of Commerce Vs. DAPCB S.C.C.A. No. 13/95, court noted that where
negotiations are going on, the limitation time continues to run and it is still
incumbent upon those who need to give documents to do so within the time
allowed and they are at liberty to seek adjournments for purposes of
negotiations once the suit is filed.
Likewise under the Civil Procedure Rules, Court is
enjoined to encourage out of court settlement but this can only be done once
the suit is filed and is pending before court (Refer to Order 12 Rule 2 CPR)
CASE EXTRACTS
Difasi v Attorney-General
[1972] 1 EA 335 (HCU)
Division: High
Court of Uganda at Kampala
Date of judgment: 16
June 1972
Case Number: 860/1971
(119/72)
Before: Fuad
J
Sourced by: LawAfrica
[1] Limitation of Actions – False
imprisonment – Continuing injury – Cause of action arises continuously during
imprisonment – Civil Procedure and Limitation (Miscellaneous Provisions) Act
1969, (U.).
Editor’s Summary
The plaintiff claimed damages for wrongful arrest
and false imprisonment. The plaintiff had been arrested and imprisoned on a
charge of murder. The Director of Public Prosecutions had directed the charge
to be withdrawn and the accused to be released on 25 December 1969. He was not
released however, until 19 July 1971.
The defendant raised a preliminary point that the
action was statute barred under the Civil Procedure and Limitation
(Miscellaneous Provisions) Act 1969. It was argued for plaintiff that false
imprisonment was a continuing injury, a fresh cause of action arising each day
that he was detained.
Held –
(i) false imprisonment is a continuing
tort with a cause of action accruing continuously during the imprisonment (John
Siya v. Attorney-General (4) followed; Musambu v. West Mengo District
Administration (3) not followed);
(ii) a claimant can recover in respect of
imprisonment during the limitation period.
Judgment for plaintiff on preliminary point.
Cases referred to in judgment:
(1) Hardy v. Ryle (1829), 9 B. & C.
603. 109 E.R. 224.
(2) O’Connor v. Isaacs, [1956] 2 Q.B.
288.
(3) Musambu v. West Mengo District
Administration, [1971] E.A. 379.
(4) John Siya v. Attorney-General,
H.C.C.S. 29 of 1971 (unreported).
Page 336 of [1972] 1 EA 335 (HCU)
Judgment
Fuad J: The claim of the plaintiff is
against the Attorney-General for damages for wrongful arrest and false
imprisonment. The facts upon which the plaintiff relies are set out in the
plaint as follows:
“(3) On 25 December 1968 at Konko village in
Kyaggwe County the Police constables from Lugazi Police Post, the servants or
agents of the Uganda Government assaulted and falsely arrested the Plaintiff
upon a false charge of murder and caused the Plaintiff to be remanded to prison
pending the hearing of the said charge.
(4) During the month of December 1969,
the Director of Public Prosecutions ordered and directed the Police to withdraw
the said charge against the Plaintiff and release the Plaintiff on 25 December
1969, but the Police negligently/carelessly and maliciously detained the
Plaintiff and falsely procured the Magistrate to remand the Plaintiff to prison
on the same said charge until 19 July 1971, when the Plaintiff was released on
the order of the High Court Judge at Kampala.
(5) The Plaintiff contends that at the
material time the said Police were acting in the course of their employment as
such agents/servants of the Uganda Government.
(6) By reason of the premises the
Plaintiff contends that he was wrongfully arrested and falsely imprisoned for a
period of 572 days from 25 December 1969, till 19 July 1971, in consequence of
which he suffered damage.”
The defence admits the arrest on 25 December 1968
but pleads that it was lawful. The defendant also admits that the plaintiff was
not released in accordance with the instructions of the Director of Public
Prosecutions contained in his letter of 16 December 1969 addressed to the
Deputy Supt. of Police, Mengo, but denies that any malice or negligence was
involved, the error being due to a “mere oversight”. It is pleaded that the
plaintiff was lawfully remanded in prison until he was released on 19 July
1971. It is common ground that the plaintiff’s plight was brought to the
attention of the Chief Justice who, after investigation, discovered the
terrible injustice that had occurred and it was as a result of an order made by
the Chief Justice that the plaintiff regained his liberty on 19 July last year.
The defence included the following plea of
limitation–
“IN THE ALTERNATIVE the defendant pleads that the
plaintiff can only recover in respect of false arrest-imprisonment only for a
period of one year computed backwards from the date of filing of this suit in
the High Court, and the defendant will invoke the provisions of the Civil
Procedure and Limitation (Miscellaneous Provisions) Act, 1969.”
With the agreement of counsel for the parties, the
issue of limitation was taken as a preliminary point of law and the matter was
argued before me on 7 June 1972, on the pleadings as they stood, without any
evidence being heard.
Mr. Matovu, for the Attorney-General, departing
from his pleadings, submitted that the cause of action arose in December 1969
(when the instructions of the Director of Public Prosecutions should have been
obeyed) and thus that the whole action was time-barred when the plaint was
filed on 22 October 1971 by virtue of the provisions of s. 2 (1) of the Act,
which stipulates that no action founded on tort shall be brought against the
Government “after the expiration of twelve months from the date on which the
cause of action arose”. He relied on the decision of Youds, J. in Musambu v.
West Mengo District Administration, [1971] E.A. 379 and on the English case
followed by Youds, J., O’Connor v. Isaacs, [1956] 2 Q.B. 288.
Page 337 of [1972] 1 EA 335 (HCU)
Mr. Kityo, for the plaintiff, argued that if the
cause of action had arisen in December 1969 the cause of action had continued
from day to day until his client was released. A fresh cause of action arose
each day that he was detained after he should have been released. He submitted
that O’Connor’s case was decided on a particular statute and had no relevance
here. He attempted to persuade the court, however, that on the facts as pleaded
in this case, the cause of action had in fact only arisen on 19 July 1971 when
the plaintiff was released by the Chief Justice’s order. He prayed in aid s. 5
of the Act, contending that the plaintiffs right to be released had been
concealed from him by fraud, and that time did not start to run against him
until his right had been made known to him.
During the course of his submissions, Mr. Kityo
cited the following passages from p. 197 of Franks on Limitation of Actions:
“False imprisonment is necessarily a continuing
tort so that a cause of action accrues continuously throughout its duration and
an action may be brought at any time in respect of imprisonment occurring in
the previous six years.”
He also cited a passage from para. 512 of Clerk
& Lindsell on Torts (12th ed.), which is in the following terms:
“Where there is a continuing nuisance or a
continuing trespass, every fresh continuance is a fresh cause of action, and
therefore an injured party who sues after the cessation of the wrong may
recover for such portions of it as lie within the period limited.”
The judgment of Youds, J. in Musambu’s case, is so
short that I will set it out in full:
“With the agreement of the parties, a preliminary
point of law was taken by Mr. Tinyinondi on behalf of the defendant local
authority that the plaintiff’s claims for wrongful arrest and false
imprisonment are statute-barred by s. 2 of the Civil Procedure and Limitation
(Miscellaneous Provisions) Act 1969.
The submission of Mr. Tinyinondi is that the causes
of action for the torts of wrongful arrest and false imprisonment arose on 2
October 1969 according to the plaintiff’s own case as pleaded, yet the action
was not commenced against the defendant until the filing of the plaint on 19
October 1970, which was 17 days out of time.
Mr. Balikuddembe’s argument is that the causes of
action for wrongful arrest and false imprisonment are so intertwined and mixed
with the cause of action for malicious prosecution that it ought to be held that
time should not begin to run against the plaintiff until after 22 October 1969
which was the date when criminal proceedings taken against him in the
magistrate’s court for tax evasion terminated in his favour; and that it was
not until after the termination of those proceedings in his favour that he
became aware of his wrongful arrest and knew he had been falsely imprisoned.
I am afraid that I cannot accede to Mr.
Balikuddembe’s argument, and I consider it is immaterial to the question which
I have to decide at what point of time it was that the plaintiff first became
aware that he had an actionable case. I have to decide the question in
accordance with the terms and wording of the statute and consider “the date on
which the cause of action arose” as the sole criterion.
Neither of the advocates produced any decision from
East African courts which provides me with any assistance, but the English case
of O’Connor v. Isaacs, [1956] 2 Q.B. 288 and Court of Appeal at p. 328 is
Page 338 of [1972] 1 EA 335 (HCU)
directly in point and was a case of false
imprisonment where it was held both by Diplock, J. (as he then was) in the
court of first instance and by the Court of Appeal that the cause of action
arises at the date of imprisonment and time starts to run at that date, and not
at the date of the subsequent quashing of a conviction or order which in that
case was a necessary preliminary step before the action for false imprisonment
could be brought-see also Clerk & Lindsell on Torts (12th ed.), para. 1801,
at p. 941.
I therefore must hold that the causes of action for
wrongful arrest and false imprisonment arose on and by 2 October 1969 and that
time began to run against the plaintiff on and after that date. He is therefore
statute-barred and is unfortunately 17 days out of time in starting his action
for wrongful arrest and false imprisonment.”
As I read O’Connor v. Isaacs, it was held that the
right of action for false imprisonment was barred by s. 21 (1) of the
Limitation Act, 1939 notwithstanding the fact that under the Justices’
Protection Act, 1848, a conviction (and in certain cases an order) must be
quashed before an action for the resulting false imprisonment can be brought,
because the cause of action accrues at the date of the imprisonment and the
proviso to s. 2 of the Justices’ Protection Act does not postpone the accrual
of the cause of action until the time when the various orders complained made
by the justices were quashed. On the facts of the case it would have been
irrelevant for the Court of Appeal to have considered whether the cause of
action in false imprisonment accrues continuously throughout its duration. The
plaintiff had been imprisoned for a total of 193 days during the years 1942,
1944 and 1945. The writ claiming damages for false imprisonment in respect of
these periods of detention was not issued until December 1954, a very long time
after his final release in October 1945. In view of the construction put upon
the relevant statutes by the Court of Appeal and on the facts, it could not have
been suggested that any of the causes of action had accrued within the
limitation period.
To return to Musambu’s case, it must be appreciated
that the judgment does not reveal the duration of the plaintiff’s imprisonment.
I have been able to discover what it was from a “ruling” given by the learned
Chief Justice upon another point of law raised in the same case. It is clear
that the plaintiff averred that he had been falsely imprisoned for a period of
7 hours on 2 October 1969. Since, as we have seen, the suit was not instituted
until 19 October 1970, there was no imprisonment within the limitation period,
and I respectfully agree that the claim in so far as it related to false
imprisonment (there was also a claim in respect of malicious prosecution) was statute-barred.
A question similar to the one before me was,
however, raised in the unreported case of John Siya v. Attorney-General, High
Court Civil Suit No. 29 of 1971, which has come to my attention. In that case
the plaintiff was arrested on 1 January 1970 and released on 11 August 1970.
His plaint was filed on 5 April 1971. Wambuzi, J. held:
“I am inclined to the view that false imprisonment
is a continuing injury, that is limiting the freedom of the individual. In this
case therefore the effect of s. 2 of the Civil Procedure and Limitation
(Miscellaneous Provisions) Act is to wipe out so much of the injury as falls
outside twelve months of the filing of the action. The plaintiff is at liberty
to show that any imprisonment within 12 months of the filing of the suit was
false. I accordingly hold that so much of that alleged imprisonment is not
statute barred.”
Mr. Kityo’s submission regarding s. 5 of the Act
cannot, in my opinion, be upheld. One has only to read the section to see that
none of its provisions could
Page 339 of [1972] 1 EA 335 (HCU)
possibly apply in this case on the pleadings as
they stand. I am of the respectful view that the law as set out in the passages
from the text books I have quoted above, and as expounded by Wambuzi, J., on
the continuing nature of the tort of false imprisonment and the effect of this
attribute upon the law of limitation is correct. There is some additional
support in the old case of Hardy v. Ryle (1829), 9 B. & C. 603; 109 E.R.
224 in which it was held that where the plaintiff was released from wrongful
detention of one month’s duration on the 14 December, and issued his writ on
the 14 June (the period of limitation under the repealed Constables Protection
Act, 1750, being 6 months), he was entitled to maintain an action in respect of
the trespass to his person committed on 14 December.
Paraphrasing part of para. 411 of Halsbury’s Laws
of England (3rd ed.). Vol. 24, I hold that where an action is brought for false
imprisonment against the Government, if the imprisonment began more than 12
months before action but continued to a time within that period, damages for so
much of the imprisonment as took place within the 12 months before action may
be recovered, although a plea of the statute prevents the recovery of damages
for so much of the imprisonment as took place outside that period. Therefore on
the facts of this case the plaintiff is not statute-barred from attempting to
establish his claim for damages from 22 October 1970 until his release on 19
July 1971.
Order accordingly.
For the plaintiff:
JF Kityo (instructed by Kityo & Co, Kampala)
For the defendant:
MB Matovu (Senior Principal State Attorney)
Nyarbungu Tin Mines Ltd and another v
Attorney-General
[1972] 1 EA 339 (HCU)
Division: High
Court of Uganda at Kampala
Date of judgment: 26
April 1972
Case Number: 879/1971
(120/72)
Before: Fuad
J
Sourced by: LawAfrica
[1] Limitation of actions – Computation
of time – Exclusion of day of accident and last day when a Sunday or Public
Holiday – Interpretation Act (Cap. 16), s. 38 (U.).
Editor’s Summary
The plaintiffs sued the defendant for damages for
tort. The accident occurred on 31 October 1970. The plaint was filed on 1
November 1971, 31 October 1971 being a Sunday.
Counsel for defendant raised a preliminary
objection that the suit was time-barred under s. 2 (1) of the Civil Procedure
and Limitation (Miscellaneous Provisions) Act 1969.
Held –
(i) the day of accident is excluded from
the computation of the limitation period;
(ii) 31 October 1971 being a Sunday, the
suit could be filed on the next day and the suit was not statute-barred.
Preliminary objection dismissed.
Page 340 of [1972] 1 EA 339 (HCU)
Cases referred to in judgment:
(1) Gelmini v. Morriggia, [1913] 2 K.B.
549.
(2) Marren v. Dawson Bentley & Co.
Ltd., [1961] 2 Q.B. 135.
Judgment
Fuad J: The two plaintiffs sued the
Attorney-General in negligence for special and general damages arising out of a
motor car collision. The plaint was filed on 1 November 1971. Appearance was
entered on 20 November 1971 and the defence was filed on 1 February 1972. It
was in the following terms:
“The defendant admits all the averments contained
in the plaint and at the trial will only ask the court to quantify damages.”
On 10 March 1972 interlocutory judgment was entered
by the registrar in the plaintiffs’ favour, under O. 11, r. 6. The suit then
came before me for assessment of damages, on 5 April. Counsel for the
Attorney-General asked for an adjournment (which was consented to, and granted)
to 11 April to enable the defendant to have the second plaintiff examined by
another doctor. On that date Mr. Kityo appeared for the plaintiffs but no-one
appeared for the Attorney General. Mr. Kityo was ready to go on but stated that
he was not calling evidence about the damage caused to the first plaintiff’s
car, because of the admissions in the written statement of defence. I informed
him that I did not understand the defence to have accepted the amount claimed
in respect of the damaged motor car and that I would require to hear evidence
on the matter. I then granted Mr. Kityo an adjournment to 19 April and, in the
interests of justice, directed that notice of the new hearing date should be
served upon the Attorney-General.
On 19 April, before Mr. Kityo could call evidence, Mr.
Ogwal, a Senior State Attorney, raised a preliminary objection. He had not
represented the defendant at a previous stage of these proceedings. He
submitted that the suit was statute-barred by virtue of the provisions of s. 2
(1) of the Civil Procedure and Limitation (Miscellaneous Provisions) Act 1969.
The subsection provided that no action founded on tort shall be brought against
the Government after the expiration of 12 months from the date on which the
cause of action arose. He submitted that since the accident giving rise to the
claim had occurred on 31 October 1970, the suit should have been filed on or
before 30 October 1971. Mr. Kityo, understandably, said that he was taken by
surprise but rejected my offer of an adjournment so that he could consider the
new point that had been raised at such a late stage of the proceedings. He
submitted that since liability had been admitted, the limitation rule did not
apply. In any event, he argued, the date of the accident should not be counted
and that therefore the suit, filed as it was on 1 November 1971, was filed
within the limitation period.
There is an English case interpreting the
Limitation Act, 1939 which is of assistance. In Marren v. Dawson Bentley &
Co. Ltd., [1961] 2 Q.B. 135, an accident occurred, by which the plaintiff was
injured, on 8 November 1954. A writ was issued on 8 November 1957. It was held
that the day of the accident was to be excluded from the computation of the
limitation period and the defendant’s plea that the action was statute-barred
failed. I am sure, with respect that this view of the meaning of “after the
expiration of twelve months from the date on which the cause of action arose”
is correct and that 31 October 1970, for the purposes of this suit, must be
excluded. However, in my opinion, this interpretation does not help Mr. Kityo,
for by this reckoning the suit should have been filed on or before the 31
October 1971.
Page 341 of [1972] 1 EA 339 (HCU)
This does not end the matter for I have looked up
the calendar for the year 1971 (as counsel should have done) and find that the
31 October fell on a Sunday. There is clear authority in England that O. 3, r.
4 of the Rules of the Supreme Court does not serve to extend the period of
limitation under a statute and if that period expires on a Sunday, a writ
issued on the following day is out of time (Gelmini v. Moriggia, [1913] 2 K.B.
549). I have no doubt therefore that our O. 47, r. 3 cannot help Mr. Kityo. In
the United Kingdom, however, there appears to be a provision of general application
similar to s. 38 (1) (b) of our Interpretation Act (Cap. 16). It reads:
“38. (1) In
computing time for the purpose of an Act of Parliament–
(a) . . .
(b) if the last day of the period is
Sunday or a public holiday (which days are in this section referred to as
excluded days) the period shall include the next following day, not being an
excluded day;”
I am of the view that these provisions apply to the
facts before me and hold that the suit, having been filed within the period of
limitation (as extended by s. 38 (1) (b) of the Interpretation Act) is not
statute-barred, and Mr. Ogwal’s preliminary objection must fail.
I order that the costs of the hearing on 19 April
1972 shall be the plaintiffs’ in any event. I am now ready to hear evidence on
the issue of damages, at the earliest date convenient to the parties.
Order accordingly.
For plaintiff:
JF Kityo (instructed by Kityo & Co, Kampala)
For defendant:
JK Katende (Mrs), (State Attorney)
Bertram Ltd v Consolidated Agencies Ltd
[1962] 1 EA 212 (CAD)
Division: Court
of Appeal at Dar-es-Salaam
Date of judgment: 29
March 1962
Case Number: 82/1961
Before: Sir
Alastair Forbes VP, Crawshaw and Newbold JJA
Sourced by: LawAfrica
Appeal from: H.M.
High Court of Tanganyika – Weston, J.
[1] Limitation of action – Debt –
Acknowledgement – Balance sheets of company showing loan due to creditor –
Balance sheets signed by directors some time after end of financial years to
which they related – Whether signature by directors constitutes acknowledgement
of existing or past debt – Whether acknowledgement brings debt within
provisions of Indian Limitation Act, 1908, s. 19.
Editor’s Summary
The appellant company sued for money lent and
interest. The respondent company’s defence was that the action was time-barred
pursuant to the Indian Limitation Act, 1908, the relevant period being three
years. The appellant company relied on certain balance sheets of the respondent
company as acknowledgements of the existence of the loans to keep them alive
under s. 19 of the Act and it was argued that the signature of the balance
sheets by the directors of the respondent company operated as acknowledgements
of the existence of the debts as at the date of signature, or, alternatively,
that the balance sheets were effective admissions of the existence of the loans
on the dates to which they referred. It was common ground that each balance
sheet had been signed by the directors some time after the end
Page 213 of [1962] 1 EA 212 (CAD)
of the financial year to which it related. It was
submitted that signature of a balance sheet was no more than an acknowledgement
of a past liability and that s. 19 of the Act required an acknowledgement of
subsisting liability and not of past liability. The judge held that the balance
sheets were no more than acknowledgements of past liability, and, as such, not
sufficient under s. 19 of the Act and therefore the appellant’s claim was
time-barred. On appeal
Held –
(i) an acknowledgement of debt, to be
effective for purposes of s. 19 of the Indian Limitation Act, 1908, must be an
acknowledgement of an existing debt, and if signature of a balance sheet by the
directors merely operated as an admission of the existence of the debt as at
the date to which the balance sheet refers, that is no more than an admission
of a past debt and would not be effective as an acknowledgement for the
purposes of s. 19.
(ii) signature of the balance sheets by
the directors was an effective acknowledgement of the existence at the date of
signature of the debt and accordingly acknowledgement was made within the
period of limitation.
Jones v. Bellgrove Properties Ltd., [1949] 2 K.B.
700 applied.
Appeal allowed.
Cases referred to in judgment:
(1) Jones v. Bellgrove Properties Ltd.,
[1949] 2 K.B. 700; [1949] 1 All E.R. 498; [1949] 2 All E.R. 198.
(2) Maniram Seth v. Seth Rupchand
(1906), 33 Cal. 1047.
(3) Re Atlantic and Pacific Fibre Co.
Ltd., [1928] Ch. 836.
(4) Re Transplanters (Holding Co.) Ltd.,
[1958] 2 All E.R. 711.
(5) Rajah of Vizianagaram v. Official
Liquidator (1952), A.I.R. Mad. 136.
The following judgments were read by direction of
the court:
Judgment
Sir Alastair Forbes VP: This is an
appeal from a judgment and decree of the High Court of Tanganyika dated
September 19, 1961, whereby it was held that the bulk of the appellant
company’s claim against the respondent company was time-barred.
The background to the action from which the appeal
arises is stated by the learned judge of the High Court as follows:
“The parties to this action are private limited
liability companies incorporated in this Territory and carrying on business in
it, apparently as finance companies exclusively. The companies are two of a
number formed by a Mr. Wali Dharsee, who died on November 16, 1959. This
gentleman, who was a legal practitioner in these courts, was sole director of
the plaintiff company (hereinafter referred to shortly as the plaintiff) from
1952 to the date of his death. He was also a director of the defendant company
(hereinafter referred to shortly as the defendant) from 1951 until he died, the
other director being one Mr. K. F. Jafrabadwalla. Mr. Houry who appeared for
the plaintiff was exercised to impress upon me, and adduced evidence which does
satisfy me, that in fact Mr. Wali Dharsee was in effective control of all these
legal persons of his own creation, including both plaintiff and defendant, and
that they were mere incorporeal puppets brought into being solely to serve the
purposes of Mr. Wali Dharsee.”
Page 214 of [1962] 1 EA 212 (CAD)
The appellant company’s claim concerns two loan
accounts (hereinafter referred to as “Loan No. 1” and “Loan No. 2”
respectively) and is stated in paragraph 3 of the plaint (which was filed on
April 13, 1961) as follows:
“3. The defendant company is indebted to
the plaintiff company in the sum of Shs. 349,962/52, made up as follows:
Shs.
23,427.52 on account of Loan No. 1 and
Shs.
326,535.00 on account of Loan No. 2
Shs.
349,962.52
being moneys lent and advanced by the plaintiff
company to the defendant company on an open and current account between the
said two parties, which sum being repayable on demand, is due and owing, as per
statements of accounts annexed hereto and marked ‘A’ and ‘B’ respectively, to
which the plaintiff company craves leave to refer.”
There was also a claim for interest on the sum of
Shs. 349,962.52 in respect of the period January 1 to April 15, 1961.
The statement of account referred to in relation to
Loan No. 1 is as follows:
“Consolidated Agencies Limited, Dar-es-Salaam
in account with
Bertram Limited
No. 1 Account
Dr. Cr.
9. 3.51 To
: Cash loan @
6
per cent. p.a. Shs. 85,000.00
Oct. 17 By
: Cash 11,615.00
Dec. 14 By
: Cash 20,000.00
Dec. 31 To
: Interest 3,924.73
11. 3.52 To
: Interest 1,220.31
7. 6.52 By
: Cash 30,000.00
31. 3.54 To
: Interest – two years 3,754.00
16. 4.54 By
: Cash 4,000.00
31.12.54 To
: Interest 1,312.24
15. 2.55 By
: Cash 10,000.00
18. 3.55 By
: Cash 5,000.00
31. 3.55 To
: Interest 287.50
31. 3.56 To
: Interest 940.00
31. 3.57 To
: Interest 940.00
31. 3.58 To
: Interest 940.00
15. 5.58 By
: Cash 300.00
31. 3.59 To
: Interest 1,044.18
9. 6.59 To
: Cash (part payment repairs
House 301 Regent Estate) 1,430.00
12. 6.59 To
: Cash (ditto) 1,000.00
31. 3.60 To
: Interest 1,223.50
31.12.60 To
: Interest 1,326.06
31.12.60 By
: Balance c/d 23,427.52
Shs.
104,342.52 104,342.52
1. 1.61 To
: Balance b/d Shs. 23,427.52
E. & O.E.”
Page 215 of [1962] 1 EA 212 (CAD)
The statement of account in relation to Loan No. 2
is:
“Consolidated Agencies Limited, Dar-Es-Salaam
in account with
Bertram Limited
No. 2 Account
Dr. Cr.
3. 8.54 To : Cash
loan @ Shs. 269,000.00
6
per cent. p.a. “ 6,725.00
31. 2.54 To
: Interest “ 4,035.00
31. 3.55 To
: Interest “ 16,140.00
31. 3.56 To
: Interest “ 16,140.00
31. 3.57 To
: Interest “ 16,140.00
31. 3.58 To
: Interest “
26. 8.58 By
: Cash “ 20,030.00
3. 2.59 By : Cash
26,000.00
31. 3.59 To
: Interest “ 16,140.00
31. 3.60 To
: Interest “ 16,140.00
31.12.60 To
: Interest “ 12,105.00
31.12.60 By
: Balance c/d “ 326,535.00
Shs. 372,565.00 372,565.00
1. 1.61 To : Balance
b/d Shs. 326,535.00
E. & O.E.”
By an amendment to the plaint the appellant company
pleaded:
“7. That the plaintiff’s claim is not
barred by the law of limitation as the debt due to the plaintiff company has
been acknowledged by the defendant company in its books and accounts from year
to year.”
The respondent company pleaded inter alia that the
accounts were time-barred under the provisions of the Indian Limitation Act,
which applies in Tanganyika; the relevant period, which is not in dispute,
being three years.
The appellant company relied on certain balance
sheets of the respondent company as acknowledgements of the existence of the
loans to keep them alive under s. 19 of the Limitation Act. That section (hereinafter
referred to as “section 19”) reads as follows:
“19(1) Where, before the expiration of the period
prescribed for a suit or application in respect of any property or right an
acknowledgement of liability in respect of such property or right has been made
in writing signed by the party against whom such property or right is claimed,
or by some person through whom he derives title or liability, a fresh period of
limitation shall be computed from the time when the acknowledgement was so
signed.
“(2) Where the writing containing the
acknowledgement is undated, oral evidence may be given of the time when it was
signed; but, subject to the provisions of the Indian Evidence Act, 1872 (1 of
1872), oral evidence of its contents shall not be received.
“Explanation I. – For the purposes of this section
an acknowledgement may be sufficient though it omits to specify the exact
nature of the property or right, or avers that the time for payment, delivery,
performance or enjoyment has not yet come, or is accompanied by a refusal to
pay, deliver, perform or permit to enjoy, or is coupled with
Page 216 of [1962] 1 EA 212 (CAD)
a claim to a set-off, or is addressed to a person
other than the person entitled to the property or right.
“Explanation II – For the purposes of this section,
‘signed’ means signed either personally or by an agent duly authorised in this
behalf.
“Explanation III – For the purposes of this section
an application for the execution of a decree or order is an application in
respect of a right.”
Although the particular loans made by the appellant
company are not specified as such in the balance sheets, these loans are
included in the general item “Loans” in each balance sheet, and the learned
judge held, following Jones v. Bellgrove Properties Ltd. (1), [1949] 2 K.B.
700, that this would be a sufficient acknowledgement of the debt – subject, of
course, to the point whether it could be said to be an acknowledgement of a
subsisting liability. This part of the learned judge’s decision, which is
favourable to the appellant company, has not been challenged by the respondent
company. The learned judge, however, continued:
“In order to appreciate Mr. O’Donovan’s main
contention it is necessary to return to the evidence of Mr. Houghton. This
gentleman was unable to say when the balance sheets were signed by the
defendant, but he testified that he signed them only after the defendant had
done so. Since Mr. Houghton was able to give the dates on which he himself
signed and the dates on which the balance sheets were sent to the defendant for
signature in each case, the period within which, if not the precise date on
which, the balance sheets were signed by the defendant can be fixed with
certainty. It emerges that:
“(a) The balance sheet showing the
defendant’s financial position as at December 31, 1954, was sent to him for
signature on October 19, 1956, and must have been signed by the defendant
between that date and October 27, 1956, when Mr. Houghton testified he signed.
“(b) The balance sheet showing the defendant’s
financial position as at December 31, 1955, was sent to him for signature on
November 6, 1957, and must have been signed by the defendant between that date
and November 19, 1957, when Mr. Houghton testified he signed.
“(c) The balance sheet showing the
defendant’s financial position as at December 31, 1956, was sent to him for
signature on March 12, 1958, and must have been signed by the defendant between
that date and April 11, 1958, when Mr. Houghton testified he signed.
“(d) The balance sheet showing the
defendant’s financial position as at December 31, 1957, was sent to him for
signature on April 28, 1959, and must have been signed by the defendant either
on that date or on April 29, 1959, when Mr. Houghton testified he signed.
“Thus, in each case the balance sheet was signed a
considerable time after the end of the financial year to which it related. Mr.
O’Donovan argued strongly that this was a fatal defect. The authorities and
learned commentators he contended are agreed that s. 19 of the Act requires an
acknowledgement of a subsisting liability. An acknowledgement of a past
liability has never been held sufficient. Learned counsel maintained that
nothing could be clearer than that each of the balance sheets produced was no
more than an acknowledgement of such a past liability.”
The learned judge, after considering the case of
Maniram Seth v. Seth Rupchand (2) (1906), 33 Cal. 1047 (P.C.), on which Mr.
Houry relied,
Page 217 of [1962] 1 EA 212 (CAD)
agreed with Mr. O’Donovan’s arguments and held that
the accounts were time-barred, saying:
“I find myself, therefore, unable to agree that the
decision is in favour of the plaintiff in this case. I feel bound to decide
that the balance sheets are no more than acknowledgements of past liability,
and as such not sufficient under s. 19 of the Act.
“In view of this finding, I do not think it
necessary to consider Mr. O’Donovan’s other objection to the balance sheets.
“I confess I come to this conclusion with some
reluctance, the more so because it would appear that under English law the
conclusion might well have been different. In Jones v. Bellgrove Properties
Ltd., op. cit., the position was apparently substantively what it is here, yet
the plaintiff had no difficulty there. The balance sheets showed the company’s
position as at May 21, 1939, 1940, 1941, 1942, 1943 and 1945, and good
acknowledgement was held to have been made on December 31, 1946.
“In the final result, I must find that the
plaintiff’s claim is time-barred. Accordingly, judgment will be entered for the
plaintiff in the sum of Shs. 2,430/-, only, conceded by the defendant, together
with interest on that amount at court rates from today’s date until date of
payment. The plaintiff will pay 95 per cent. only of the costs of this suit.”
At the commencement of the hearing of the appeal
Mr. Houry and Mr. O’Donovan, who appeared respectively for the appellant
company and the respondent company both at the trial and on the appeal, put in
an agreed statement, on the basis of which the appeal was argued. The statement
is as follows:
“Conceded by Appellant and Respondent
That:
“1. Wali Dharsee (advocate) was the
managing director of both plaintiff and defendant companies, i.e. Bertram
Limited and Consolidated Agencies Limited.
“2. The books of account of both
companies were kept in his office under his control and direction.
“3. The payment in No. 1 account of Shs.
300/- on the 15.5.58 and in No. 2 account Shs. 20,030/- on the 26.8.58 and Shs.
26,000/- on the 3.2.59 were paid by cheque by the defendant (respondent)
company to plaintiff (appellant) company as appearing in the books of account
of the said companies.
“4. No express promise to pay is required
under the Limitation Act in acknowledgements under s. 19 of the said Act.
“5. The only issue is whether the suit is
time-barred.
“6. If the suit is not time-barred there
will be judgment for plaintiff (appellant) as prayed in the plaint.”
In this court Mr. Houry argued, as he had done in
the court below, that the signature of the balance sheets by the directors
operated as acknowledgements of the existence of the debts as at the date of
signature. Alternatively, he argued that the balance sheets must at least be
effective admissions of the existence of the loans on the dates to which they referred,
and that, taking into account the payments of Shs. 300/- in respect of Loan No.
1 on May 15, 1958, and Shs. 20,030/- and Shs. 26,000/- in respect of Loan
Page 218 of [1962] 1 EA 212 (CAD)
No. 2 on August 26, 1958, and February 3, 1959,
respectively, which payments had been made by cheque, the suit would still be
within the period of limitation. He relied on a passage in The Law of
Limitation by Rustomji (5th Edn.), where at p. 346, the learned author says:
“A statement in a balance sheet acknowledging a
debt due by the company is sufficient within s. 19.”
Mr. O’Donovan’s reply to both arguments was that
any statement of a debt in a company balance sheet, unless actually signed by
the directors on the day to which it relates, is never more than an acknowledgement
of the existence of a past debt, and that an acknowledgment of a debt, to be
effective for the purposes of s. 19, must be an acknowledgement of an existing
debt. He contended that the passage in Rustomji relied on by Mr. Houry was bad
law.
I accept that an acknowledgement of a debt, to be
effective for the purposes of s. 19, must be an acknowledgement of an existing
debt. There is ample authority in India to this effect, and I agree with the
learned trial judge that nothing in Maniram Seth v. Seth Rupchand (2) is in
conflict with this view. It follows, I think, that if the signature of the
balance sheets by the directors merely operates as an admission of the
existence of the debt as at the date to which the balance sheet refers, that is
no more than an admission of a past debt and would not be effective as an
acknowledgement for the purposes of s. 19. That, I think, disposes of Mr.
Houry’s second argument. It remains, however, to consider whether the signature
of the balance sheets can operate as admissions of the existence of the debt at
the dates of signature.
At first sight Mr. O’Donovan’s argument that the
signature of a balance sheet can only operate as an admission of a debt shown
thereon as at the date to which the balance sheet refers, appears sound.
Nevertheless, this does not appear to be the interpretation which courts have
put on balance sheets. So far as the passage in Rustomji, set out above, is
concerned, the earlier of the Indian cases referred to by the learned author in
the relevant footnote does not, with respect, appear to concern balance sheets;
and the report of the later case, which appears to be the principal authority
for his statement, is unfortunately not available. However, in the English case
to which he refers, Re Atlantic and Pacific Fibre Co. Ltd. (3), [1928] Ch. 836,
it was held, in respect of debentures and debenture interest, that:
“the issue of the balance sheets constituted, in
the circumstances, a sufficient acknowledgement of the company’s indebtedness
to the plaintiff and the other debenture holders under the debentures.”
It appears implicit in this that the balance sheets
were an admission of liability as at the date of issue of the balance sheets.
The Bellgrove Properties case (1) followed the Atlantic and Pacific Fibre Co.
decision (3). In the Bellgrove Properties case (1) the balance sheets
considered were the balance sheets of the company as at May 21, 1939, 1940,
1941, 1942, 1943 and 1945, which were presented to the shareholders of the
company on December 31, 1946, having been previously signed by a firm of
chartered accountants as agents of the company and by two directors of the
company. On these balance sheets it was held by Birkett, J. (as he then was) at
first instance that
“the company had made an acknowledgement in writing
signed by their agents to the plaintiff that the debt remained unpaid and due
to him on December 31, 1946”;
Page 219 of [1962] 1 EA 212 (CAD)
i.e. the date of presentation of the balance sheets
to the shareholders, which was some nineteen months after the date to which the
last balance sheet related. This finding was apparently not challenged on the
appeal, and was accepted by the Court of Appeal. The Bellgrove Properties case
(1) was considered and distinguished in Re Transplanters (Holding Co.) Ltd.
(4), [1958] 2 All E.R. 711, but no comment was directed to this aspect of the
case. The decision in the Bellgrove Properties case (1) was considered and
applied in India by the High Court of Madras in Rajah of Vizianagaram v.
Official Liquidator (5) (1952), A.I.R. Mad. 136. At p. 145 the court, after
referring to the decision in the Bellgrove Properties case (1), and, inter
alia, to the finding that the balance sheet contained an acknowledgement that
the debt “at the date of the annual general meeting” remained unpaid and due,
said:
“Mr. Tiruvenkatachari contends that this decision
should not be applied and is erroneous. On the other hand, Mr. Rajah Ayyar
contends that the observations of the Privy Council in ‘Maniram Seth v. Seth Rupchand’
33 Cal. 1047 at p. 1060 are to the effect that the provisions of the Limitation
Act in England regarding acknowledgement are more stringent than what they are
in India. We have not been shown any reason why the judgment of the Court of
Appeal should not be followed by us.”
I think we ought to follow and apply those
decisions in the instant case. The Bellgrove Properties case (1) relates to the
date of presentation of the balance sheets to the shareholders at the annual
general meeting, and not to the date of signature by the directors. However,
the significance of the date of presentation to the shareholders is that under
the English law the acknowledgement must be made to the person whose claim is
being acknowledged. This is not necessary under s. 19. Under s. 19 signature by
the directors as agents of the company is a sufficient acknowledgement. On the
basis of the decision in the Bellgrove Properties case (1), and bearing in mind
that the period of time in the instant case between the dates to which the
balance sheets relate and the dates of signature of the balance sheets is
comparable to the relevant period in the Bellgrove Properties case (1), I would
hold that the signature of the balance sheets by the directors was an effective
acknowledgement of the existence of the debt as at the date of signature. This
is the opposite conclusion to that reached by the learned trial judge, but the
learned judge did not have his attention drawn to the Rajah of Vizianagaram
case (5), which shows that the Bellgrove Properties case has been followed in
India in relation to s. 19.
If I am right, it follows that successive
acknowledgements were made in the respective balance sheets which kept alive
the right to recover the debt. The last balance sheet was signed on April 28 or
29, 1959, and accordingly the suit, which was filed on April 13, 1961, was
within the limitation period.
I would accordingly allow the appeal with costs and
order that judgment be entered for the appellant company with costs as prayed
in the plaint.
Crawshaw JA: I have had the advantage of
seeing the judgments of my brother judges, and agree that the appeal should be
allowed with costs. The English cases to which they have referred are, I think,
relevant in spite of the difference in the wording of s. 19 of the Indian
Limitation Act, which is applicable in Tanganyika, and the English law at the
time applicable to the decision of those cases.
Newbold JA: I agree that the appeal
should be allowed with costs. In Jones v. Bellgrove Properties Ltd. (1), which
was followed in Rajah of
Page 220 of [1962] 1 EA 212 (CAD)
Vizianagaram v. Official Liquidator (5), it was
held that a statement in a balance sheet of an amount owing to creditors
constituted an acknowledgement in writing that the debt remained unpaid and due
at the date of the annual general meeting. This being so it must equally be an
acknowledgement of a subsisting debt at the date the balance sheet is signed by
the director, as that date must be earlier than the date of the annual general
meeting. I am fortified in this view by the fact that the books of the
respondent company, the evidence of the auditor and, in relation to the earlier
balance sheets, the subsequent balance sheets show that the debts in question
were subsisting at the date of the signature of each of the balance sheets. If
the balance sheets are acknowledgements of subsisting debts at the date of
their signature, then, as each such acknowledgement was made within the
limitation period, the right to recover the debts was kept alive and the suit
was filed within the limitation period.
Appeal allowed.
For the appellant:
George N. Houry & Co., Dar-es-Salaam
G. N. Houry, Q.C., G. S. Patel and R. G. Houry
For the respondent:
Bryan O’Donovan, Q.C., and P. R. Dastur,
Dar-es-Salaam
Iga v Makerere University
[1972] 1 EA 65 (CAK)
Division: Court
of Appeal at Kampala
Date of judgment: 3
December 1971
Case Number: 51/1971
(12/72)
Before: Law
Ag V-P, Lutta and Mustafa JJA
Sourced by: LawAfrica
Appeal from: High
Court of Uganda – Mead, J
[1] Limitation of Actions – Pleading –
Plaint on face filed out of time must be rejected – Limitation Act (Cap. 70),
s. 4 (U.) – Civil Procedure Rules O. 7, rr. 6 and 11 (U.).
[2] Civil Practice and Procedure –
Plaint – Rejection – Barred by limitation – Must be rejected – Civil Procedure
Rules, O. 7, rr. 6 and 11 (U.).
Editor’s Summary
The appellant sued the respondent in tort for
damages for personal injuries, the action having been filed outside the
limitation period for such an action. Interlocutory judgment was entered for
the appellant but when the action came before the judge for assessment of
damages he set aside the interlocutory judgment and dismissed the appellant’s
claim holding that the court had no jurisdiction to entertain it.
On appeal it was contended that limitation is only
a procedural matter not going to jurisdiction and that limitation must be
pleaded.
Held –
(i) a plaint barred by limitation is
barred by law and must be rejected;
(ii) such a plaint should be rejected even
though an interlocutory judgment has been entered;
(iii) the judge should not have dismissed
the claim but rejected the plaint: this had not occasioned any failure of
justice as the correct position was arrived at.
Appeal dismissed.
No cases referred to in judgment
Judgment
The following considered judgments were read.
Mustafa JA: On 2 September 1966 the appellant was travelling in a
motor vehicle belonging to the respondent. The vehicle was being driven by the
respondent’s employee. The vehicle overturned, and the appellant suffered
injuries as a result. On 26 May 1971, over 4½ years later, the appellant filed
an action in the High Court against the respondent claiming damages arising out
of the said accident. No appearance was entered by the respondent and the
appellant obtained an interlocutory judgment on 28 July 1971 on the issue of
liability under O. 9, r. 6 of the Civil Procedure Rules from the Registrar of
the High Court. The assessment of damages was referred to a judge for
determination. On 27 September 1971 the matter came up before Mead, J. for
assessment of damages. In the course of the hearing the judge realised that the
claim was statute-barred and drew the attention of counsel for the appellant to
that point. Counsel for the appellant submitted that he would address the court
later on the point of limitation. The judge heard all the witnesses and
adjourned the case for about seven days for the appellant’s counsel to prepare
the submission, which was duly made on 4 October 1971. The submission made was
that the defence had to plead limitation, and that the court could not, on its
own motion, raise such an issue. On 7 October 1971 Mead, J. gave judgment
holding:
Page 66 of [1972] 1 EA 65 (CAK)
“The wording of the Limitation Act, s. 4 is
mandatory, action shall not be brought save within the prescribed period of
time. If action is brought out of that period then before entering judgment on
the claim so made the court must be satisfied the case comes within one of the
exceptions provided by the Act extending the period of limitation. The court,
in the present case having raised the issue that for the apparent reason the
claim was barred by the Act and therefore could not be entertained by the
court, it was open to the plaintiff to apply for leave to amend the statement
of claim to show that the right to sue was preserved by coming within one of
the exceptions. The plaintiff not having shown the right to sue was so
preserved I hold the Court had no jurisdiction to entertain the suit.
The Registrar of this court had no power to enter
judgment, the plaintiff’s right to claim being on the face of it barred by the
provisions of the Act.”
He then set aside the interlocutory judgment and
dismissed the appellant’s claim.
The appellant appeals on the following main
grounds:
1. The issue of limitation must be
raised by the defendant and must be specifically pleaded, otherwise it can be
considered as being waived.
2. The limitation does not go to
jurisdiction but is only a procedural matter.
3. The learned judge erred in setting
aside the interlocutory judgment.
I think it will be convenient to refer to the
relevant enactments. I will first refer to the Limitation Act (Cap. 70).
S. 3 reads:
“The provisions of this Part of this Act shall have
effect subject to the provisions of Part III of this Act which provide for the
extension of the periods of limitation in the case of disability,
acknowledgement, part payment, fraud and mistake.
S. 4 (1):
The following actions shall not be brought after
the expiration of six years from the date on which the cause of action arise,
that is to say–
(c) actions founded on contract or tort”
and then follows a proviso which provides that in
an action for damages for personal injury the period would be three and not six
years.
Another relevant enactment is the Civil Procedure
Code:
O. 7, r. 6 of the Rules reads:
“Where the suit is instituted after the expiration
of the period prescribed by the law of limitation the plaint shall show the
grounds upon which exemption from such law is claimed.”
R. 11 of the same Order reads:
“The plaint shall be rejected in the following
cases:
. . .
(d) where the suit appears from the
statement in the plaint to be barred by law.”
A plaint which is barred by limitation is a plaint
“barred by law”. Reading these provisions together it seems clear to me that
unless the appellant in this case had put himself within the limitation period
by showing the grounds upon which he could claim exemption the court “shall
reject” his claim. The appellant was clearly out of time, and despite an
opportunity afforded him by the judge, he did not show what grounds of
exemption he relied on, presumably because none existed. The Limitation Act
does not extinguish a suit or action itself, but operates to bar the claim or
remedy sought for, and when a suit is time-barred, the court cannot grant the
remedy or relief.
Page 67 of [1972] 1 EA 65 (CAK)
In my view the judge in the circumstances should
have rejected the plaint under O. 7, r. 11 of the Civil Procedure Code, instead
of dismissing it. However, in this case, before the matter came to the judge,
an interlocutory judgment in the appellant’s favour had already been entered.
That had complicated matters. Nevertheless a plaint can be rejected “at any
stage” of the suit, provided it is rejected as a whole – see Chitaley &
Rao, Commentary on Indian Code of Civil Procedure, 4th Ed., p. 1699 – referring
to O. 7, r. 11 (identical to the Uganda Provisions). It is true that the judge
here “dismissed” the appellant’s claim. If he had only “rejected” the plaint,
the appellant would not, under O. 7, r. 13, be precluded from presenting a
fresh plaint in respect of the same cause of action. However this right of
presenting a fresh claim is illusory. It is obvious the appellant could not
show any ground on which he could claim exemption from the limitation
provisions, and the appellant could not have successfully presented a fresh
claim in any event. The judge’s dismissal of the claim therefore had not caused
any prejudice. It is perhaps unfortunate that the judge had used the words “the
court had no jurisdiction to entertain the suit”. It is clear that the court
had jurisdiction; what the judge meant was that he had no power to grant any
relief as the remedy was barred by limitation. The judge was bound to raise the
issue of limitation as the plaint on the face of it, appeared “to be barred by
any law” in the words of O. 7, r. 11 (d). As the judge was barred from granting
any relief or remedy, the interlocutory judgment of the registrar, which was a
step towards granting such relief, was rightly set aside.
Although the judge did not act under the provisions
of O. 7, r. 11, what he did produced the same practical results. It would be
futile to remit the matter to the High Court to deal with, and no useful
purpose would be served, as the practical results would be inevitably the same.
Taking these matters into consideration, I think the most suitable course to
adopt would be to dismiss the appeal. I would therefore dismiss the appeal with
costs.
Law Ag V-P: The main question in this
appeal is whether the trial judge was right, in the circumstances of this case,
in holding that the High Court had no jurisdiction to entertain an action for
damages for personal injuries which was brought after the expiration of the
period of limitation prescribed therefore.
An action founded in tort to recover damages in
respect of personal injuries, such as the action the subject of this appeal,
shall not be brought after the expiration of three years from the date on which
the cause of action arose, see s. 4 (1) of the Limitation Act (Cap. 70). The
plaint in the action the subject of this appeal was filed on 26 May 1971. The
accident, the cause of action, occurred on 2 September 1966. The action was
accordingly brought more than 4 years and 8 months after the cause of action,
and was barred by limitation. This was not appreciated when interlocutory
judgment was entered in default of appearance, under O. 9, r. 6 of the Civil
Procedure Rules; but when the action came before Mead, J. for assessment of
damages, the judge decided that the High Court had no jurisdiction to entertain
the suit, that the interlocutory judgment was a nullity, and he dismissed the
appellant’s claim.
Mr. Mugenyi for the appellant put forward several grounds
of appeal of considerable merit. He submitted that the Limitation Act was
procedural in nature, and did not oust the jurisdiction of the High Court to
entertain an action brought out of time. He submitted that the words “shall not
be brought” in s. 4 of the Limitation Act should not be construed as mandatory,
as an action could be brought outside the period of limitation if it could be
brought within a recognised period of exemption, such as disability, so that
even if prima-facie time barred, the court still had jurisdiction to entertain
it. Mr. Kateera for the respondent pointed out that by O. 7, r. 6:
Page 68 of [1972] 1 EA 65 (CAK)
“Where a suit is instituted after the expiration of
the period prescribed by the law of limitation the plaint shall show the
grounds upon which exemption from such law is claimed.”
The plaint in this case shows no such grounds, and
it is common ground that there are none. By O. 7, r. 11:
“The plaint shall be rejected in the following
cases–
. . .
(d) where the suit appears from the
statement in the plaint to be barred by any law.”
This is the position here, clearly the plaint
should have been rejected. I have no doubt that s. 4 of the Limitation Act and
O. 7 of the Civil Procedure Rules must be read together. The effect then is
that if a suit is brought after the expiration of the period of limitation, and
this is apparent from the plaint, and no grounds of exemption are shown in the
plaint, the plaint must be rejected. That is what I think the judge meant when
he held that the High Court had no jurisdiction to entertain the suit. His
terminology may not have been exact, but he arrived at the right result. For
these reasons I agree with Mustafa, J.A. that this appeal fails, and should be
dismissed with costs, and it is ordered accordingly.
Lutta JA: I have had the advantage of
reading the judgment of Mustafa, J.A. with which I agree and have nothing to
add.
Appeal dismissed.
For the appellant:
Y Mugenyi (instructed by Mugenyi & Co, Kampala)
For the respondent:
J Kateera (instructed by Hunter & Greig,
Kampala)
Republic v Abdalla and others
[1972] 1 EA 68 (CAD)
Division: Court
of Appeal at Dar Es Salaam
Date of judgment: 13
December 1971
Case Number: 112/1971
(13/72)
Before: Sir
William Duffus P, Lutta and Mustafa JJA
Sourced by: LawAfrica
Appeal from: High
Court of Tanzania – Kwikima, Ag. J
[1] Criminal Practice and Procedure –
Forfeiture – Authority for – Contained in the section – No further authority
required – National Agricultural Products Board (Transport Control) Order 1969,
para. 8 (T.).
[2] Criminal Practice and Procedure –
Forfeiture – Reasons for – Should be given.
Editor’s Summary
On the conviction of the respondents on their plea
of guilty, the magistrate asked whether they had anything to say why the
produce, the subject matter of the charges of illegal transportation of
agricultural produce, should not be forfeited. They offered no reason and the
magistrate ordered its forfeiture, as he had a discretion to do. On first
appeal the judge held that the combination of fines and forfeiture were
excessive for a statutory offence involving no moral turpitude, and that the
order should have shown the authority under which it was made.
On further appeal:
Held –
(i) the right to order forfeiture was
contained in the paragraph under
Page 69 of [1972] 1 EA 68 (CAD)
which
the charge was laid and no further authority for forfeiture was required
(Ngulila Mwakanyemba v. Republic (2) distinguished);
(ii) it is preferable for the court to
state why it makes an order of forfeiture, but failure to do so is not fatal to
the order;
(iii) the respondents showed a flagrant
disregard of the law and forfeiture had been properly ordered.
Appeal allowed: forfeiture order restored.
Cases referred to in judgment:
(1) Yakobo Mbugeramula v. R. (1951) 18
E.A.C.A. 207.
(2) Ngulila Mwakanyemba v. Republic
(Case 314, 1968 H.C.D.).
Judgment
The considered judgment of the court was read by
Sir William Duffus P: This is a second appeal on a question of law
by the Director of Public Prosecutions against a decision of a judge of the
High Court sitting in his appellate jurisdiction on the judgment of the
district magistrate at Same. The judge set aside the forfeiture orders made by
the district magistrate in five criminal prosecutions under the National
Agricultural Products Board Act (Cap. 567), for a breach of the National
Agricultural Products Board (Transport Control) Order 1969.
Para. 3 of the Order prohibits the transportation
of any agricultural product, to which the Agricultural Products Board Act
applies, exceeding 30 kilos in weight without a permit from the Board and then
in accordance with the terms and conditions specified in the permit. In this
case the product was rice. Para. 8 of the Order makes it an offence to
contravene any provision of the Order and states–
“Any person who contravenes any provision of this
Order shall be guilty of an offence and shall be liable on conviction to a fine
not exceeding two thousand shillings or to imprisonment for a term not
exceeding six months, or to both such fine and such imprisonment: and in the
case of a second or subsequent offence, to a fine not exceeding four thousand
shillings or to imprisonment for a term not exceeding one year, or to both such
fine and such imprisonment. And the court convicting him may, in addition to
such fine or term of imprisonment, order that the agricultural product in
respect of which the offence is committed shall be forfeited to the United
Republic.”
The order for forfeiture is not mandatory but lies
in the discretion of the trial court. There were five separate charges in this
matter. In each case the defendants, now the respondents in this appeal,
pleaded guilty and the procedure followed in all five cases was similar in each
case. The respondents pleaded guilty and the facts were stated by the
prosecution and accepted by the defence and then the magistrate, either before
or after fining the defendants, called upon each defendant to show cause why an
order for forfeiture of the produce, the subject of the charges, should not be
made. And again, each of the defendants offered no reason why forfeiture should
not be ordered. It is agreed that the procedure before the magistrate was in
order and properly carried out and the question both in the appeal before the
High Court and before us is whether the district magistrate properly exercised
his discretion in ordering the forfeiture of the produce.
In setting aside the order of forfeiture the
appellate judge seemed to have been
Page 70 of [1972] 1 EA 68 (CAD)
influenced first by the fact that the cumulative
effect of the fines and the forfeiture were, he said, “grossly excessive for a
statutory offence involving no moral turpitude”. We quote from his judgment–
“The produce could have been forfeited by a court
judicially addressing itself to the weight of the penalty appropriate in such
cases. As already shown above, the resultant penalties are so heavy that they
strike one as grossly disappropriate for any offence, let alone a statutory
offence, The fines of Shs. 250/- were by themselves high enough to warrant
interference by this court. With the forfeitures, their cumulative effect is so
devastating as to leave one almost speechless. Accordingly this appeal succeeds
and it is hereby allowed.”
The judge, acting on the authority of the decision
in the case of Ngulila Mwakanyemba v. Republic (Case 314, 1968 H.C.D.) said
that the forfeiture order should also have shown the authority under which it
was made and should also have contained sufficient reasons to show that the
magistrate had applied his mind judicially as to whether or not to make the
order.
Mr. Umezurumba, for the Director of Public
Prosecutions, complains against all the reasons given by the judge for setting
aside the forfeiture orders. He submitted that the district magistrate had
followed the correct procedure in law and had ordered the forfeiture in the
exercise of his judicial discretion and he asked this court to restore the
district magistrate’s order. Mr. Chakera, who appeared for the respondents,
supported the judgment of the High Court and he submitted that the district
magistrate had not exercised his discretion judicially as he appeared to have
cast the onus on the defendants to show cause why he should not order the
forfeiture.
The order of forfeiture was clearly a judicial
discretion given to the trial court. The principles governing the exercise of
judicial discretion have been widely dealt with in numerous cases. In the case
of Yakobo Mbugeramula v. R. (1951) 18 E.A.C.A. 207 at p. 210 this court, in
considering the order of forfeiture under the Arms and Ammunition Ordinance of
Uganda, said–
“In short the exercise of discretion remains a
matter dependent upon the facts of each particular case which must be exercised
judicially in the light of such facts.”
It would be wrong to lay down any definite rules as
to the exercise of discretion but the following quotation from Stroud’s
Judicial Dictionary (3rd Ed., Vol. I, “Discretion”) based on the cases therein
set out, in our view aptly sets out some of the general rules that do apply.
“Where something is left to be done according to
the discretion of the authority on whom the power of doing it is conferred, the
discretion must be exercised honestly and in the spirit of the statute,
otherwise the act done would not fall within the statute. ‘According to his
discretion’, means, it is said, according to the rules of reason and justice,
not private opinion.”
We would here consider the case of Ngulila
Mwakanyemba v. Republic quoted by the judge. We have read this judgment, which
is a short judgment of Duff, J. in his revisional jurisdiction in Crim. Rev. 48
of 1968. In that case there was no provision for forfeiture in the offence
charged and the judge said–
“Every forfeiture order should specify the
authority under which it is made and should contain sufficient reasons to show
that the magistrate applied his mind judicially to the question whether or not
the order should be made.”
The facts in this case are quite different in that
here the right to order forfeiture
Page 71 of [1972] 1 EA 68 (CAD)
in each of the five cases is contained in the
paragraph under which the defendants were charged and here clearly there was no
necessity for the magistrate to again repeat that he made the order for
forfeiture under that paragraph when, in fact, he was clearly sentencing the
defendants under the same paragraph. We agree that the proceedings should show
that the magistrate has applied his mind judicially in dealing with the question
of forfeiture but in this case, as we have pointed out, the magistrate in fact
showed in his record that he called upon each of the defendants to show cause
against the forfeiture before he proceeded to make the order of forfeiture. We
think it would be preferable for the court not only to show that it is
considering whether to make the order for forfeiture but also to state why it
made the order but this is not a fatal defect. Each case must be considered in
its own particular circumstances and in this case, with respect to the views of
the judge, the facts show an apparent flagrant disregard of the law by each of
the defendants. The National Agricultural Products Board Act, together with the
National Products Board (Control and Marketing) Act 1962, are both acts to
control and regulate the production and marketing of agricultural products and
the particular order in this case – the National Agricultural Products Board
(Transport Control) Order 1969, exists to carry out the provisions of these
laws. All these laws and the order were fully considered and brought into force
by the Government for the national prosperity and the general good of all the
people. In these five cases the facts show that these appellants have, in fact,
completely disregarded the law and have made no attempt to explain their acts
and really put forward no plea in mitigation. The greater the amount of the
produce involved the greater was the attempt to evade the law. In each of these
cases a considerable amount of produce was involved and in four of the cases
the offence took place at night, when the transport of produce is forbidden. In
these circumstances we are of the view that the district magistrate did not
inflict an excessive fine. The fine was only Shs. 250/- on each defendant and
the maximum was a fine of Shs. 2,000/- or a sentence of six months’
imprisonment or both the fine and imprisonment. We are also satisfied that the
district magistrate’s order of forfeiture was made only after he had considered
all the facts before him and was done in the exercise of his judicial
discretion and should not therefore have been set aside by the High Court.
We therefore allow this appeal and quash the order
of the High Court setting aside the district magistrate’s order of forfeiture
in each of the five cases and we order that the district magistrate’s Order of
forfeiture be restored in each case.
Order accordingly
For the appellant:
SO Umezurumba (State Attorney)
For the respondents:
MM Chakera (instructed by Baloo Patel, Chakera
& Co, Dar es Salaam)
Nathoo v Republic
[1972] 1 EA 72 (CAD)
Division: Court
of Appeal at Dar Es Salaam
Date of judgment: 14
December 1971
Case Number: 129/1971
(16/72)
Before: Sir
William Duffus P, Lutta and Mustafa JJA
Sourced by: LawAfrica
Appeal from: High
Court of Tanzania – Saidi, C.J
[1] Criminal Practice and Procedure –
Sentence – Enhancement – Heard by judge who issued notice – No failure of
justice.
[2] Criminal Practice and Procedure –
Sentence – Minimum sentence – Minimum Sentences Act (Cap. 526), (T.) applies to
offences under the Prevention of Corruption Act 1971 (T.).
[3] Statute – Construction –
Substitution of reference in earlier statute – Interpretation and General
Clauses Ordinance (Cap. 1), s. 10 (T.).
Editor’s Summary
The appellant was convicted of a corrupt
transaction contrary to s. 3 of the Prevention of Corruption Act 1971, and his
sentence was enhanced by the High Court to the minimum provided by the Minimum
Sentences Act (Cap. 526).
On appeal it was contended for the appellant that
the enhancement application should not have been heard by the judge who issued
the enhancement notice, that the Prevention of Corruption Act 1971 reintroduced
the option of a fine, that the Minimum Sentences Act and the Prevention of
Corruption Act 1971 were repugnant and that therefore the later Act should
prevail. For the respondent it was contended that s. 10 (1) of the
Interpretation and General Clauses Ordinance (Cap. 1) applied so as to
substitute references to the 1971 Act for references to the previous Act in the
Minimum Sentences Act.
Held – (Lutta JA dissenting)
(i) although the notice of enhancement
of sentence might have been differently worded there was no failure of justice;
(ii) the provisions of s. 10 of the
Interpretation and General Clauses Ordinance were specifically saved by s. 20
(3) of the Prevention of Corruption Act 1971;
(iii) accordingly references to the earlier
Act in the Minimum Sentences Act were to be read as references to the 1971 Act;
(iv) the Prevention of Corruption Act 1971
increased the maximum penalties but fixed no minimum punishments: accordingly
there is no conflict between it and the Minimum Sentences Act.
Appeal dismissed.
Cases referred to in judgment:
(1) The King v. John Davis (1783) 168
E.R. 238.
(2) Crawford v. Spooner (1846) 13 E.R.
582.
(3) State of Tasmania v. Commonwealth of
Australia and State of Victoria (1904) 1 C.L.R. 329.
(4) Bennett v. Minister for Public Works
(1908) 7 C.L.R. 372.
(5) Richardson v. Austin (1911) 12
C.L.R. 463.
(6) Jairamdas v. Regional Transport,
[1957] A.I.R. Rajasthan 312.
(7) Kampila v. Republic (1967) 4 ALR Mal
405.
Page 73 of [1972] 1 EA 72 (CAD)
Judgment
The considered judgment of the majority of the
court was read by Sir William Duffus P: The appellant was charged in
the resident magistrate’s court in Dar es Salaam with the offence of a corrupt
transaction contrary to s. 3 (2) of the Prevention of Corruption Act 1971 (to
which we shall hereinafter refer to as “the Act”). The appellant pleaded guilty
to the charge and was convicted but before sentence was passed there was
argument as to whether the Minimum Sentences Act (Cap. 526) applied to the Act.
The magistrate held that the former did not apply to the Act and passed a
sentence of a fine of Shs. 3,000/- or six months in default and ordered the
forfeiture of Shs. 4,000/- which the appellant had offered as a bribe. The
Deputy Public Prosecutor complained against the sentence on the ground that the
offence charged under s. 3 (2) of the Act was a scheduled offence under The
Minimum Sentences Act and therefore the magistrate should have imposed a
minimum sentence of two years’ imprisonment with 24 strokes. The Chief Justice,
exercising powers conferred on the High Court by s. 327 of the Criminal
Procedure Code (Cap. 20) examined the record of the proceedings in the resident
magistrate’s court and directed that a notice of enhancement should be issued
to the appellant. The Chief Justice’s direction was in the following terms–
“There will be revision to pass a minimum sentence
as the offence falls under the Minimum Sentences Act. Notice of enhancement
should therefore issue to the accused.”
In exercising the powers of the High Court under s.
329 of the Criminal Procedure Code, the Chief Justice set aside the fine of
Shs. 3,000/- and imposed a sentence of two years’ imprisonment with 24 strokes
after having held that the offence of corrupt transaction contrary to s. 3 (2)
of the Act falls under the Minimum Sentences Act.
Before us, Mr. Kapila, for the appellant began by
complaining that justice in the High Court was not done in that the issue to be
resolved was already decided as the notice of enhancement of sentence was
issued on the basis that the offence with which the appellant was charged fell
under the Minimum Sentences Act and that as the Chief Justice issued the
directive to be served on the appellant, he should not have heard the case. Mr.
Kapila argued that the order to take the appellant into custody was in
violation of s. 329 (2) of the Criminal Procedure Code as the appellant had not
been given an opportunity of being heard. Mr. Kapila drew attention to the
differences in the wording of s. 3 of the Act and s. 3 of the Prevention of
Corruption Act (Cap. 400) and submitted that the effect implies an amendment of
the Prevention of Corruption Act by the Act and that the latter re-introduced
the option regarding the fine and did not provide for the minimum term of
imprisonment. He further submitted that the Act and the Minimum Sentences Act
were repugnant and thus the later provision, that is, the Act, must prevail. He
argued that the Minimum Sentences Act is a special Act and so is the Act in
that it relates specifically to corruption and so if the two provisions cannot
stand together the earlier is abrogated by the later. He relied on the cases of
Bennett v. Minister for Public Works (1908) 7 C.L.R. 372; State of Tasmania v.
Commonwealth of Australia and State of Victoria (1904) 1 C.L.R. 329; Jairamdas
v. Regional Transport, [1957] A.I.R., Rajasthan 312, and Crawford v. Spooner
(1846) 13 E.R. 582. He also submitted that where a later enactment prescribes a
more lenient punishment than the old enactment providing for a more harsh
punishment then the new later enactment ought to prevail. He relied on the
cases of The King v. John Davis (1783) 168 E.R. 238, Richardson v. Austin
(1911) 12 C.L.R. 463, and Kampila v. Republic (1967) 4 ALR Mal 405.
Mr. King, for the Republic, relying on s. 327 and
330 of the Criminal Procedure Code, submitted that the procedure in the case of
revision is different
Page 74 of [1972] 1 EA 72 (CAD)
from that of an appeal. He argued that the Minimum
Sentences Act is not an amending Act and that it only restricted the provisions
in the Prevention of Corruption Act in regard to discretion in sentencing by
providing for minimum sentences. He submitted that the Act is a consolidating
Act – it consolidates the Prevention of Corruption Act and that there was
really no material difference between the two Acts.
With regard to Mr. Kapila’s complaint, by s. 327 of
the Criminal Procedure Code, power is conferred on the High Court to call for
and examine the record of any criminal proceedings before any subordinate court
in order to satisfy itself as to the legality, correctness or propriety of any
sentence imposed on a person convicted of any offence. If after examining the
record the High Court considers that the case is a proper one for revision
under s. 329 of the Criminal Procedure Code, it will cause a notice of
enhancement of sentence to issue for that purpose. In exercising its powers on
revision the High Court exercises powers conferred on it by ss. 319, 321 and
322 of the Criminal Procedure Code. The notice of enhancement of sentence was
served on the appellant, who appeared and was represented by an advocate at the
hearing. Although the notice of enhancement of sentence might have been
differently worded we are satisfied that there was no breach of natural justice
and that there was no failure of justice.
The main issue in the appeal is this. Do the
provisions of the Minimum Sentences Act apply to the Act? Mr. King for the
Republic has submitted that they do, on the ground that s. 10 (1) of the
Interpretation and General Clauses Ordinance (Cap. 1) is applicable here. It is
clear that the provisions of the Minimum Sentences Act govern and control
punishment in respect of a corrupt transaction contrary to s. 3 (2) of the
Prevention of Corruption Act. Mr. King submitted that the Minimum Sentences Act
is a substantive Act standing by itself and is a special piece of legislation
dealing with corruption and certain other offences scheduled thereunder in a
special way. He submitted that the Minimum Sentences Act did not amend the
Prevention of Corruption Act; it merely restricted the court’s discretion in imposing
sentences in certain instances. The Minimum Sentences Act was appended to the
Prevention of Corruption Act and to other Acts and Ordinances mentioned therein
in relation to minimum sentences to be imposed.
The Act repealed and re-enacted the Prevention of
Corruption Act in 1971, and for an offence contrary to s. 3 (2) the punishment
was increased to a maximum of 10 years’ imprisonment or a fine of Shs.
50,000/-, or to both. Mr. Kapila’s submission was that the Act restored or
re-introduced the power of the court to impose a fine only. He stated that the
Act was a later enactment, and its effect was to amend the provisions of the
Prevention of Corruption Act as restricted and controlled by the Minimum
Sentences Act for an offence contrary to s. 3 (2). He conceded that if the
provisions of s. 10 (1) of the Interpretation and General Clauses Act apply
then the Minimum Sentences Act would still control and govern the punishment
provisions of the Act. He however submitted that s. 10 (1) had no application.
He contended that the provisions regarding sentence in the Prevention of
Corruption Act as modified, or as Mr. Kapila maintained, amended by the Minimum
Sentences Act were inconsistent with or repugnant to those in the Act, and the
provisions in the Act, being a later enactment, must prevail.
He also submitted that the Minimum Sentences Act
only referred to the Prevention of Corruption Act in its punishment section,
and would not be “references in the same or any other enactment to the
provision so repealed” in terms of s. 10 (1) of the Interpretation Ordinance.
He relied mainly on the case of Bennett v. Minister of Public Works (supra) for
this proposition. He also submitted that in dealing with penal statutes, if two
constructions are possible, then the one favourable to an accused should be
adopted.
Page 75 of [1972] 1 EA 72 (CAD)
S. 10 (1) of the Interpretation and General Clauses
Ordinance (Cap. 1) provides as follows–
“Where an Ordinance repeals and re-enacts, with or
without modification, any provision of a former enactment, references in the
same or any other enactment to the provision so repealed, shall, unless the
contrary intention appears, be construed as references to the provision so
re-enacted.”
Mr. King submitted that references to the Prevention
of Corruption Act in the Schedule to the Minimum Sentences Act are also
references to the Act by virtue of this section. Now the Act repeals but
re-enacts the provisions of the Prevention of Corruption Act with modification.
S. 3 of the Act re-enacts the main provisions of s. 3 of the former. The basic
offence remains the same and the main difference is that the maximum punishment
is increased.
The provisions of s. 10 (1) of the Interpretation
Ordinance clearly apply to the Act. There would be no doubt about this but to
make this very clear s. 20 (3) of the Act specifically states–
“The provisions of sub-s. (2) shall be in addition
to and not in substitution of the provisions of s. 10 of the Interpretation and
General Clauses Ordinance.”
The Act must therefore be read as if there was a
specific provision that the reference in paragraph 7 of Part I of the Schedule
to the Minimum Sentences Act to the offence of taking part in a corrupt
transaction contrary to s. 3 of the Prevention of Corruption Act, shall, unless
the contrary intention appears, be a reference to the offence of taking part in
a corrupt transaction contrary to s. 3 of the Act.
To decide this we have to consider the provisions
of the Minimum Sentences Act and its purpose and intention. This Act was
obviously brought in to ensure that the courts passed adequate sentences in the
offences specified. This statute was intended to remedy a social condition
existing at the time in the community and was an endeavour to at any rate
lessen the prevalence of the offences set out in it. It does not amend the
scale of punishment but it does fix the minimum sentence. The new Act re-enacts
with modifications the scale of punishment, it fixes a higher scale but does
not fix a minimum.
We can find no conflict between the provisions of
the Act and those of the Minimum Sentences Act. The Act sets out the punishment
for the offences but it does not fix the minimum and is in no way repugnant to
the provisions of the Minimum Sentences Act, which is a special act brought
into force to remedy conditions existing at the time, and this Act is still in
force to meet the conditions existing at the present time.
Each case must be considered in the circumstances
of the Statutory requirements applicable to it. The Australian case of Bennett
v. Minister for Public Works which was one of those quoted to us at length was
with respect quite different from the facts and the law in this case.
The provisions of the Minimum Sentences Act remain
the law of the land and have not been repealed or amended by the Act. By virtue
of the provisions of s. 10 (1) of the Interpretation and General Provisions
Ordinance the minimum sentences specifically applied to the offence in this
case.
With respect we entirely agree with the
interpretation of the Chief Justice.
Appeal dismissed.
For the appellant:
AR Kapila and M Raithatha
For the respondent:
N King (Senior State Attorney)
Maria Rita Sofia Godinho v Jashbhai C Patel and
Others
[1962] 1 EA 242 (CAK)
Division: Court
of Appeal at Kampala
Date of judgment: 3
April 1962
Case Number: 67/1961
Before: Sir
Ronald Sinclair P, Sir Alastair Forbes VP and Gould JA
Sourced by: LawAfrica
Appeal from: H.M.
High Court of Uganda – Bennett, J.
[1] Limitation of action – Postponement
of date from which limitation runs – Action for relief from consequences of
alleged mistakes of law and fact – Agreement to lease premises but no lease
granted – Tenants occupying shop premises for seven years – Claim for recovery
of premium paid to landlord by tenant over seven years ago – Whether tenant
made mistake of law or fact – Limitation Ordinance, 1958, s. 4 and s. 26 (U.) –
Rent Restriction Ordinance (Cap. 115), s. 3 (2) (U.).
[2] Rent restriction – Premium –
Recovery – Agreement to lease shop for term of seven years – Lease never
executed or registered – Whether receipt of premium unlawful – Meaning of “on”
in Rent Restriction Ordinance (Cap. 115), s. 3 (2) (U.).
Editor’s Summary
In consideration of a premium duly paid the
appellant agreed to lease a shop to the respondents for seven years form July,
1953, at a monthly rent of Shs. 650/-. The respondents were duly given
occupation of the shop and paid the agreed rent for seven years. Subsequently
the respondents sued the appellant for recovery of the premium on the grounds
that the receipt thereof by the appellant was illegal by s. 3 (2) of the Rent
Restriction Ordinance and that they were not in pari delicto with the
appellant. The defence was that the action was time barred. It was conceded
that under s. 4 of the Limitation Ordinance, 1958, the period of limitation
applicable was six years and that the
Page 243 of [1962] 1 EA 242 (CAK)
suit was not filed until more than six years after
payment of the premium but the respondents relied on s. 26 of the Limitation
Ordinance, which provides that in an action for relief from the consequences of
mistake the period of limitation shall not begin to run until the plaintiff
has, or could, with reasonable diligence have discovered the mistake. The trial
judge held that payment of the premium was illegal as a breach of s. 3 (2) of
the Rent Restriction Ordinance; that the first respondent’s belief that he was
doing nothing unlawful was a mistake of law and that, since this mistake was
not discovered until 1960, the action was not time barred. The judge based his
decision that payment of the premium was illegal on the grounds that the word
“lease” in the second proviso to s. 3 (2) did not include an agreement for
lease and he construed the words “on the . . . grant . . .
of a . . . lease” in the proviso to mean “at or about the time when a
lease is granted”. On appeal only the issue of limitation was argued.
Held –
(i) section 3 of the Rent Restriction
Ordinance was not intended to make it unlawful for a landlord to receive a premium
in consideration of the grant of a lease of business premises for seven years
or more.
(ii) the word “on” in the proviso to s. 3
(2) ibid. should be construed as meaning “in consideration of”.
(iii) a premium is either lawful or unlawful
at the time of payment; its legality cannot depend on subsequent events; as the
premium was paid in consideration of the grant, to be made in the future, of a
lease for seven years, it was a lawful payment and not in breach of s. 3 (2)
ibid.; accordingly there was no mistake of law on the part of the respondents
nor was there at the time of payment any mistake of fact.
(iv) section 26 of the Limitation Ordinance
had no application in this case and the respondents’ claim was barred by
limitation.
Appeal allowed.
Cases referred to in judgment:
(1) Kiriri Cotton Co. Ltd. v. Dewani,
[1960] E.A. 188 (P.C.); [1960] 2 All E.R. 177.
(2) Phillips-Higgins v. Harper, [1954] 1
All E.R. 116; [1954] 2 All E.R. 51.
The following judgments were read by direction of
the court:
Judgment
Sir Ronald Sinclair P: This is an appeal
from a judgment and preliminary decree of the High Court of Uganda.
The respondents, who are the plaintiffs in the
suit, seek to recover the sum of Shs. 18,000/- from the appellant, Mrs.
Godinho, as money had and received by the appellant for the use of the
respondents. The material part of the plaint reads as follows:
“1. In the year 1951 the defendant was
the registered proprietor of Plot No. 16, Market Street, Kampala comprised in
Freehold Register, vol. 49, folio 18.
“2. On or about the 27th day of March,
1951, the defendant through her agent Tulsidas Madhavji and her advocates
Messrs. Patel & Mehta verbally agreed to lease to the plaintiffs for a term
of seven years one shop, being shop No. 4, in the premises then in course of
erection on the said land at a monthly rent of Shs. 650/-.
“3. In consideration of the lease the
defendant through her said agents and advocates, Messrs. Patel & Mehta,
asked for and did receive, from
Page 244 of [1962] 1 EA 242 (CAK)
the
plaintiffs on the 27th day of March, 1951, the sum of Shs. 18,000/- by way of
premium and other than by way of rent.
“4. The said verbal agreement to lease
was not reduced to writing in spite of repeated requests by the plaintiffs, and
no lease for the said term of seven years was ever executed or registered in
the Register of Titles.
“5. On or about the 24th day of
September, 1952, the defendant sold and transferred the said land to Norman
Godinho & Sons Ltd.
“6. The plaintiffs entered into occupation
of the said shop No. 4 on or about the 1st day of July, 1953.
“7. By reason of the matters hereinbefore
set out the plaintiffs entered into occupation as aforesaid and continue in
occupation as monthly tenants at the rent of Shs. 650/- per month.
“8. By virtue of the provisions of sub-s.
(2) of s. 3 of the Rent Restriction Ordinance (Cap. 115) the receipt of the
said sum of Shs. 18,000/- by the defendant from the plaintiffs was illegal, but
the plaintiffs are entitled to recover same since they were not in pari delicto
with the defendant.
“9. The plaintiffs claim from the
defendant the said sum of Shs. 18,000/- as money had and received by the
defendant for the use of the plaintiffs.”
One of the defences pleaded was that the claim was
barred by limitation. Paragraph 3 of the written statement of defence which
relates to this defence reads:
“The alleged debt did not accrue within six years
before the action and was and is barred by the Limitation Law.”
The respondents filed a reply, para. 2 of which is
as follows:
“2. As regards para. 3 of the defence the
plaintiffs’ claim is for relief from the consequences of a mistake, namely:
(a) That from and after the 24th day of
September, 1952, the grant of a lease for seven years by the defendant to the plaintiffs
became impossible of performance by the defendant. The said mistake was not,
and could not with reasonable diligence have been discovered by the plaintiffs
until the 23rd day of May, 1960, when a search in the Land Registry disclosed
the transfer of the property by the defendant on the said date.
(b) That the plaintiffs consulted their
advocate Mr. A.I. James, on or about the 21st day of April, 1960, and did not
discover and could not with reasonable diligence have discovered until that
date that
(i) the said premium was illegal; and
(ii) the said premium was recoverable from
the defendant.”
The defence of limitation was tried as a
preliminary issue, evidence being called by both parties limited to that issue.
The learned judge held that the suit was not barred by limitation. It is this
decision which is the subject of the present appeal.
It is common ground that under s. 4 of the
Limitation Ordinance, 1958, the period of limitation applicable to this action
is six years. The plaint was not filed until June, 1960, more than six years
after the payment of the money sought to be recovered, but the appellants
relied on s. 26 of the Limitation Ordinance, 1958, the relevant portion of
which reads:
“Where, in the case of any action for which a
period of limitation is prescribed by this Ordinance, either –
Page 245 of [1962] 1 EA 242 (CAK)
(a) ;
or
(b) ;
or
(c) The action is for relief from the
consequences of a mistake,
the period of limitation shall not begin to run
until the plaintiff has discovered . . . the mistake . . .
or could with reasonable diligence have discovered it.”
The reply sets out two mistakes – one of fact and
one of law – upon which reliance was placed for the purpose of taking the claim
out of the operation of s. 4 of the Ordinance.
The learned judge found it necessary to deal only
with the mistake of law. For the purpose of determing the preliminary issue he
assumed that the facts averred in the plaint were true: that is to say, that
the respondents did pay Shs. 18,000/- to the appellant as a premium in
consideration of a promise by the appellant to grant the respondents a lease
for seven years of a shop in a building on plot No. 16, Market Street, Kampala,
which was then in course of erection. He accepted the evidence of the first
respondent, J.C. Patel, that when he paid the Shs. 18,000/- he did not know he
was doing anything unlawful and that he had no occasion to alter his view until
he read of the Kiriri Cotton Co. case in “The Uganda Argus” early in 1960. He
held that the payment of the money by the first respondent to the appellant, if
it was paid in consideration of the letting of business premises, was in breach
of s. 3 (2) of the Rent Restriction Ordinance and consequently unlawful, that
the first respondent’s mistaken belief that he was not doing anything unlawful
was a mistake of law and that since the first respondent did not discover his
mistake until 1960, the suit was not barred by limitation.
Section 3 (2) of the Rent Restriction Ordinance
(Cap. 115) provides:
“Any person whether the owner of the property or
not who in consideration of the letting or sub-letting of a dwelling-house or
premises to a person asks for, solicits or receives any sum of money other than
rent or any thing of value whether such asking, soliciting or receiving is made
before or after the grant of tenancy shall be guilty of an offence and liable
to a fine not exceeding Shs. 10,000/- or imprisonment for a period not
exceeding six months or to both such fine or imprisonment;”
Then follow two provisos, only the second of which
is relevant. It reads:
“And provided further that nothing in this section
shall be deemed to make unlawful the charging of a purchase price or premium on
the sale, grant, assignment or renewal of a long lease of premises where the
term or unexpired term is seven years or more.”
This proviso was repealed in 1954, but was in force
in 1951 when the money was paid to the appellant. It relates only to business
premises by virtue of the definition of “premises”.
I would observe here that the Kiriri Cotton Co.
case (Kiriri Cotton Co. Ltd. v. Dewani (1), [1960] E.A. 188 (P.C.)), referred
to by the first respondent in his evidence, concerned the recovery of a premium
paid for a lease for more than seven years of a residential flat. The premium
was unlawful; the second proviso to sub-s. (2) of s. 3 of the Rent Restriction
Ordinance having no application. It was decided that the premium was
recoverable by the tenant from the landlord, the parties not being in pari
delicto. That decision has no bearing on the question whether a premium paid in
consideration of the grant of a lease for seven years of business premises is
unlawful.
The learned judge based his decision that the
payment of the premium was unlawful on two grounds. First, he held that the
word “lease” in the second
Page 246 of [1962] 1 EA 242 (CAK)
proviso to s. 3 (2) means an agreement which
confers on the tenant an estate or interest in the land and does not include an
agreement to grant a lease which is only enforceable as between the parties to
it and that, since no written lease was ever executed, the transaction did not
fall within the proviso. Secondly, he construed the words “on the
. . . grant . . . of a . . . lease” in the
proviso to mean “at or about the time when a lease is granted.”
With respect to the learned judge, I am unable to
agree with his construction of the words “on the . . . grant
. . . of a . . . lease”. In Maxwell on Interpretation of
Statutes (10th Edn.) in the chapter dealing with the rule that penal statutes
shall be construed strictly, it is said at p.263:
“The rule of strict construction requires that the
language shall be so construed that no cases shall be held to fall within it
which do not fall both within the reasonable meaning of its terms and within
the spirit and scope of the enactment. Where an enactment may entail penal
consequences, no violence must be done to its language to bring people within
it, but rather care must be taken that no one is brought within it who is not
within its express language.”
In the first place, I do not think that the word
“on” means “simultaneously with”. Such a construction would not be reasonable
and would in many cases defeat the object of a premium. It will be noted that
the proviso refers to the “charging” of a premium not to the “payment” of a
premium. The learned judge himself did not place such a narrow construction on
the word and Mr. James for the respondents does not suggest that its meaning
should be so limited. In the second place, if “on” does not mean
“simultaneously with”, I can see no good reason for construing it as meaning
“at or about the time when”. Reading s. 3 as a whole, I do not think it was the
intention of the legislature to make it unlawful for a landlord to receive a
premium in consideration of the grant of a lease of business premises for seven
years or more. To my mind, the receipt of a premium in such circumstances is
not within the mischief aimed at. It is clearly lawful to receive a premium
simultaneously with the execution of a lease of business premises for seven
years and I cannot conceive that there would be any mischief in receiving a
premium in consideration of the grant of such a lease in the future. If the
learned judge’s construction is correct, it would be an offence to receive a
premium in consideration of the grant of a lease for seven years or more, even
if such a lease were subsequently executed, unless the premium were received at
or about the time the lease was executed. On that construction also, I think
the receipt of such a premium would constitute an offence if the tenant
subsequently refused to execute a lease. That is not a reasonable construction,
bearing in mind the mischief aimed at. In my view, a premium is either lawful
or unlawful at the time of payment: its legality cannot depend on subsequent
events. If it did, then, in order to avoid the possibility of the commission of
an offence, the payment would have to be made simultaneously with the execution
of a lease and that, as I have said, would not be reasonable. My conclusion,
therefore, is that reason and good sense require the word “on” to be construed
as meaning “in consideration of”. I think this disposes of the argument based
on the distinction between a formal lease and an agreement to grant a lease. A
payment of a premium is in consideration of the formal lease whether paid on
the signing of that lease or on the promise to grant that lease. If there is a
refusal to grant the lease, that may give rise to an action for breach of
contract; but that is not the issue in this appeal. As the premium was paid in
consideration of the grant, to be made in the future, of lease for seven years,
it was a lawful payment and not in breach of s. 3 (2) of the Rent Restriction
Ordinance. There was, accordingly, no mistake of law on the part of the
respondents.
Although the learned judge did not deal with the
alleged mistake of fact, counsel agreed
that we should deal with it, if it became necessary, in order finally to
dispose of the whole issue of limitation. The mistake of fact alleged is that
the premium was paid to the appellant in consideration of the grant of a lease
for seven years and that by the time the premises were erected in 1953 and the
lease could then have been granted, the appellant, by transferring the land to
Norman Godinho & Sons Ltd. on September 24, 1952, had made it impossible to
grant a lease. It is further alleged that the mistake was not, and could not
with reasonable diligence, have been discovered by the respondents until May
23, 1960, when a search in the Land Registry disclosed the transfer of the
property by the appellant on September 24, 1952. I cannot see that the money
was paid under any mistake of fact. The mistake must exist at the time of
payment and the money be paid in consequence of the mistake: see
Phillips-Higgins v. Harper (2), [1954] 1 All E.R. 116. At the time when the
premium was paid to the appellant, she was in fact the registered proprietor of
the land. There was no mistake on the part of the respondents. Furthermore,
even if there were a mistake, the respondents could, with reasonable diligence,
have discovered it long before the period of limitation had expired. If the
respondents had taken steps to obtain a lease when the premises were ready for
occupation in 1953 and had pressed for specific performance, they would then
have discovered the transfer. Indeed, Mr. James for the respondents conceded
that the respondents had not used reasonable diligence to discover the mistake
and virtually abandoned the allegation that there had been a mistake of fact.
For those reasons, I am of opinion that s. 26 of
the Limitation Ordinance has no application in this case and that the
respondents’ claim is barred by limitation.
I would allow the appeal with costs and order that
the judgment and preliminary decree of the High Court be set aside and that the
respondents’ suit be dismissed with costs.
Sir Alastair Forbes VP: I agree.
Gould JA: I also agree.
Appeal allowed.
For the appellant:
Korde & Esmail, Kampala
R.E.G. Russell and K.G. Korde
For the respondents:
Hunter & Greig, Kampala
A.I. James
PLEADINGS
It is in
all cases desirable and necessary that the matter to be submitted in court for
decision should in all cases be ascertained.
The defendant is entitled to know all that the plaintiff alleges against
him or her. The plaintiff is also
entitled to know what the defendant’s defence is.
The
defendant may dispute every statement made by the plaintiff or may be prepared
to prove other facts that will give the case a different turn. He or she may
rely on a point of law or on the claim. In all cases, before the trial, parties
should know exactly what they are fighting about. Otherwise, they unnecessarily
labour and incur unnecessary expenses to procure evidence to prove at the trial
facts which the opposite party concedes.
Section
2 of the Civil Procedure Act defines pleadings to include “any petition or summons, and also includes the statements in writing of
the claim or demand of any plaintiff, and of the defence of any defendant to
them, and the reply of the plaintiff to any defence or counterclaim of a
defendant”.
In Odger’s Principles of Pleadings and Practice, 20th
Edition, page 11, pleadings are defined as statements in writing, served by
each party alternately on his opponent, stating what his contention will be at
the trial, and giving all such details as his opponent needs to know in order
to prepare his case in answer”.
The usual pleadings in an action are:
- Statement
of claim/Plaint, in which the plaintiff sets out his or her cause of
action with all necessary particulars as to his or her injuries and
losses.
- A
defence, in which the defendant deals with every material fact alleged by
the plaintiff in his statement of claim and also states new facts on which
he or she intends to rely. A defendant may also set up a cross claim known
as a counter claim.
- A reply
in which the plaintiff deals with fresh facts raised by the defendant in
his or her defence. A reply is unusual except where a defendant sets up a
counter claim.
The plaintiff naturally begins with a plaint presented to court. On the
plaint, the plaintiff lays his or her claim.
The defendant may put in his or her defence which besides answering the
plaintiff’s claim may set up a counter claim or a set off.
The plaintiff may make a reply and the defendant may rejoin. Each of the alternate pleadings must in its
own terms either admit or deny the facts alleged in the last preceding
pleadings. It may also allege additional
facts where necessary.
The points admitted by either side are extracted and distinguished from
those in controversy. Other facts not disputed may prove to be immaterial.
Thus, litigation is limited to the real matters in dispute.
Pleadings should be conducted so as to evolve clearly defined issues,
definite propositions of law and fact asserted by one party and denied by the
other but which both agree to be the points on which they wish to have the
court decide in the suit.
There are advantages achieved after the exchange of pleadings namely:
- The
parties themselves get to know what exactly is in dispute and actually may
find that they are fighting over nothing.
- The
parties get to know what exactly will be brought at the trial and this may
save expenses in procuring evidence.
- The
mode of the trial may be determined from the pleadings which may raise a
simple point of law.
- Pleadings
help in final determination of the issues. The successors to the parties
do not have to fight over the same issue (see s.7 CPA).
The function of pleadings is to ascertain with precision the matters on
which the parties differ and those on which they agree and thus, to arrive at
clearly defined issues which both parties desire a judicial decision. To arrive
at this, pleadings must be exchanged between the parties in accordance with the
law and practice.
The law compels each party to state clearly and intelligibly the
material facts on which he or she relies omitting everything immaterial and to
insist on his or her opponent admitting or expressly denying every material
matter alleged against him or her. Each
party must give his or her opponent a sufficient outline of the case.
After the first pleading, namely the plaint, each party must do more
than state his or her case. He or she must deal with what is presented by the
opponent. A party who wants to contest the opponent’s case must deal with the
other party’s case in three ways:
a) He or she can deny the whole or some essential part of averments of
facts contained in the pleadings. This is what is called traversing an
opponent’s allegations and the party will in essence be compelling the other to
prove his or her allegation.
b) He or she may confess and avoid (confession and avoidance). In his or
her defence, he or she may allege facts which go to destroy the effect of the
facts alleged in the plaint. He or she may plead other facts but argue that it
is the plaintiff in default.
c) A demurrer – This basically means pleading a point of law. The defendant
may plead res judicata, limitation, e.t.c. particularly, the allegation may be
traversed or objected to as bad in law, or some collateral matter may be raised
to destroy the effect of the plaintiff’s pleading.
The cardinal rule of pleadings is contained in order 6 rule 1(1) which
states that
“Every pleading shall contain a brief statement of the material facts on
which the party pleading relies for a claim or defence, as the case may be.”
Under Order 6 rule 1(2) it is provided
that:
“the pleadings shall, when necessary, be divided into paragraphs,
numbered consecutively; and dates, sums and numbers shall be expressed in
figures.”
From this rule, it follows that:
(a) Pleadings should contain facts not
law and a party has to prove those facts that will help him or her to hold his
or her case and he or she must do so precisely.
In Shaw v Shaw [1954] 2 QB 429,
441, Lord Denning said that:
“It is said that an implied
warranty is not alleged in the pleadings, but all the material facts are
alleged, and in these days, so long as those facts are alleged, that is
sufficient for the court to proceed to judgment without putting any particular
legal label upon the cause of action”.
See also: Singlehurst v Tapscott Steamship Co. (1899) WN 133
Whenever a party is pleading, he must only set out the material facts.
It is not sufficient to plead generally.
(b) A party must plead only the material
facts. In Bruce v Oldham’s Press Ltd
[1936] 1 KB 712, Scott, LJ, said that:
“The word ‘material’ means necessary for the purpose of formulating a
complete cause of action, and if any one ‘material’ fact is omitted, the
statement of claim is bad”.
In Darbyshire
v Leigh [1896] 1 QB 554, 65 LJ QB 360, it was stated that:
“But in an action for libel or slander, the precise words complained of
are material, and they must be set out verbatim in the statement of claim. If the
words taken by themselves are not clearly actionable, the plaintiff must also
insert in his statement of claim an averment (with particulars in support) of
an actionable meaning which he will contend the words conveyed to those to whom
they were established. Such an averment is called an innuendo”.
Whether or not a fact is material will
depend on the circumstances of a case and where there is doubt, a fact should
be included in the pleadings as the more facts included the better.
Where notice is an element of a cause of
action, one must plead that notice. Rule 14 of Order 6 provides that:
“Wherever it is material to allege notice to any person of any fact,
matter or thing, it shall be sufficient to allege the notice as a fact, unless
the form or the precise terms of the notice, or the circumstances from which
the notice is to be inferred, are material.”
For instance under Section 47 of the
Bills of Exchange Act, it is a requirement to give notice of dishonor to the
person who issued the bill of exchange.
A party must state his or her case. The
plaintiff is not entitled to any relief not pleaded in the pleadings and not
proved at the trial. In David Acar v
Acar Aliro (1987) HCB 60, the court found that a party who has not pleaded
an issue or led evidence on it in a lower court cannot raise it on appeal.
Under Order 6 rule 2, every pleading
must be accompanied by a summary of evidence, list of witnesses, list of
documents and list of authorities. This is hinged on the fundamental premise
that there should be no element of surprise at the trial. Additional lists can
be presented to the court with leave.
Particulars in Pleadings
The necessity for particulars springs
from the need to have precise and concise pleadings. They serve to supplement
otherwise vague and generalized pleadings and are necessary for a fair trial.
Particulars also help to prevent
surprise at the trial by informing the other party of the nature of the case he
or she is likely to meet and defend thus securing ground for an amicable settlement
of issues as opposed to warfare.
Order 6 rule 3 of the CPR provides that:
“In all cases in which the party pleading relies on any
misrepresentation, fraud, breach of trust, wilful default or undue influence,
and in all other cases in which particulars may be necessary, the particulars
with dates shall be stated in the pleadings.”
In Bisuti
v Busoga District Administration, the court held that the function of
particulars was to carry into operation the overriding principle that
litigation between the parties and particularly the trial should be conducted
fairly, openly and without surprise.
They serve to inform the other side of the nature of the case they have
to meet as distinguished from the mode in which the case is to be proved, to
enable the other side to know the what evidence they ought to be prepared with
and to prepare for trial and to prevent the other side from being taken by
surprise.
In Lubega
v Barclays Bank, the Supreme Court held that particulars of fraud must be
pleaded as a legal requirement but that failure to do so is a mere irregularity
curable by adducing evidence.
In Kampala
Bottlers v Damanico, court found that particulars are mandatory and failure
to state them was fatal.
Further and Better Particulars
Pleadings may be filed and exchanged
between the parties, a plaint may be served on the defendant who may serve a
written statement of defence in turn but the other party may feel that the
opposite party’s pleadings lack the particulars required. In situations where a
party finds that the adversary’s pleadings are not clear, procedural law
provides for methods of seeking clarity.
This can be through seeking further and
better particulars, discovery of documents or the administration of
interrogatories. The opposite party’s
pleadings may be attacked in order to enable the party to acquire the necessary
particulars required in the case.
Since a party cannot amend the other
party’s pleadings, he or she can ask for an alteration or clarification in the
other party’s pleadings.
Order 6 rule 4 states that:
“A further and better statement of the nature of the claim or defence,
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 otherwise as may be just.”
Initially, the unsatisfied party writes
to the other requesting him to furnish him with material facts. If after
correspondence the particulars are not forthcoming, the party requiring
particulars may apply to court for an order requesting the opposite party to
furnish further and better particulars and the court may make such order.
The object of further and better
particulars is to enable the other party to know what to expect at the trial .
The opponent should not be surprised.
CASE EXTRACTS
Joshi v Uganda Sugar Factory Ltd [1968] EA 570
CORAM: (DE
LESTANG. V-P, SPRY AND LAW, JJ.A.)
CIVIL APPEAL
NO 16 OF 1968
BETWEEN
NARMADASHANKER MANISHANKER
JOSHI}…………………….APPELANT
AND
UGANDA SUGAR FACTORY
LIMITED}………………………...RESPONDENT
[Appeal from a ruling and order of
the High Court of Uganda at Kampala (Saldanha, J.) dated
7th February, 1968 in
Civil Case No. 305 of 1967]
11 July, 1968.
The
following Judgments were read.
LAW, J.A.
This is an
appeal against the dismissal by the High Court of Uganda (Saldanha, J.) of an
application for further and better particulars of a pleading. The appellant is
the plaintiff in a pending civil suit in which he claims damages for personal
injuries resulting from a collision between the motor-cycle ridden by him and a
tractor and trailer driven by the servant or agent of the defendant company.
By paragraph
5of the plaint, it is alleged that the accident happened “on or about the 2nd
day of February, 1965, at about 7.45 p.m., on
a road in Bukolongo Division of the defendant's estate near Lugazi"
amongst the particulars of negligence alleged against the defendant's driver
are that
“(c) he
drove the said tractor or permitted them (sic) to be driven without any
effective lighting;
(g) he
failed to slow down or to stop when his view ahead was obstructed due to
darkness."
By paragraph
4 of the defence, the defendant admitted that the accident occurred on the day
and at the place alleged in the plaintiff but
went on to plead "further, the defendant does not admit that the collision
occurred at 7.45 p.m. as alleged.” By paragraphs 5 and 6 of the defence it is
pleaded that the collision was caused solely, alternatively was contributed to, by the plaintiff's own negligence,
which is particularized but without any reference to lights.
The
plaintiff's advocate wrote to the defendant's advocate in the following terms
"I
refer to the defence filed herein and I shall be obliged if you will let me
have the following further and better particulars thereof:
Para 4. The defendant denies that the
accident took place at 7.45 p.m. I wish to know what
time the
defendant alleges that the accident took place."
To this
letter the defendant's advocate replied as follows
"It is
the plaintiff's allegation that the collision occurred at 7.45 p.m. (paragraph
5 of the plaint). Paragraph 4 of the Written statement of Defence states, inter
alia, that the defendant does not admit that the collision occurred
at 7.45 p.m. as alleged. The statement in your letter that 'the defendant denies
that the accident took place at 7.45 p.m.' is not correct. The plaintiff
has made a certain allegation of fact, and it is open to the defendant to say
no more than that the allegation is not admitted. In our opinion, it is for the
plaintiff to prove his allegation and he cannot call upon the defendant to
amplify the non-admission."
The
.plaintiff then applied to the High Court by notice of motion for an order that
the defendant supply the further and better particulars asked for. n dismissing
this application, Saldanha J. said
"The
plaintiff's task has been facilitated by the defendant's admission of the
Collision and the date on which it occurred. That it occurred at 7.45 p.m. is
not admitted an the plaintiff must therefore prove it and the defendant is
under no obligation to state the time at which he alleges the collision
occurred."
From this
decision the plaintiff now appeals. Mr. Hunt for the plaintiff /appellant has
made a number of submissions. The first is that there is no difference between
a refusal to admit an allegation, and a denial thereof and he relies on a
dictum to this effect by Grove J. in Hall v.London and North-Western
Railway Co. . (1877) XXXV L.T. 848.
Secondly,
Mr. Hunt submits that, reading the pleadings as a whole, time is a material
factor in this case. The plaintiff has claimed that the accident occurred in
the hours of darkness, and that it has caused inter
alia by reason of defective lighting on the defendant's vehicle. By admitting
the date and place of' the accident, but denying that it occurred at 7.45 p.m.
when it was dark, the defendant in Mr. Hunt's submission must be taken to be
asserting that the accident took place at a time when it was not dark, and in
those circumstances the plaintiff is entitled to particulars as to the time
when the defendant alleges that the accident took place.
Thirdly, Mr.
Hunt submits that the object of pleadings is to prevent either party being
taken by surprise at the trial, and to enable the parties to know what case
they have to meet. He relies on Order 6 rule 9 which reads as follows:
"When a
party in any pleading denies an allegation of fact in the previous pleading of
the opposite party, he must not do so evasively, but answer the point of
substance. Thus, if it be alleged that he received a certain sum of money, it
shall not be sufficient to deny that he received that particular amount, but he
must deny that he received that sum or any part thereof, or else set out how
much he received. And if the allegation is made with diverse circumstances, it
shall not be sufficient to deny it along with those circumstances."
Mr. Hunt
submits that the defendant's pleading in this case is evasive. In admitting the
date and place of the accident, but not admitting the time, the defendant is in
effect alleging that the accident took place at a different time, and he should
be made to give particulars of this allegation.
Mr. Dholakia
for the defendant/respondent submits that all that the defendant has done is to
traverse the plaintiff's statement that the accident took place at 7.45 p.m.
and put him to proof of that allegation. A traverse of a positive allegation
does not constitute an assertion of fact, and a defendant cannot be ordered to
particularize the mere non-admission of a pleaded fact. This is not a case of a
traverse of a negative averment, which might involve an affirmative allegation (Pinson
v. Lloyds Bank (1941) 2 All E.R. 636).
Mr. Dholakia
also submits that a defendant should not be required. To disclose particulars of
the circumstances of an accident which he 113,s admitted did take place, and he
relies in this respect on Fox v. H. Wood (1962) 3 All E.H. 1100,
and submits that the time at which an admitted accident occurred is one of its
circumstances.
I may say at
once that I disagree with this submission. It is clear from the judgment of
Diplock L.J. in Fox's case, with which the ether members of the court
agreed that by the circumstances of the accident he meant how and not when it
happened.
Mr. Dholakia
also relied on the judgment of Pennyquick,J. in Chapple v. Electrical Trades Union (1961)
3 All E.H. 612, in which the learned judge cited with approval the
notes to Order 19 rule 6 R.S.C. In the Annual Practice, 1961, and in particular
this extract there from
"Traverse
by defendant. A traverse by a defendant even of a negative allegation which the
plaintiff must establish in order to succeed is not matter stated of which
particulars will be ordered, But particulars may be ordered where the traverse
involves a positive allegation."
I am content
to accept the above as a correct statement of the law on the subject with which
this appeal is concerned. The answer in this appeal depends in my view on
whether the defendant's refusal to admit the plaintiff's assertion that the
accident occurred at 7.45 p.m., and therefore in the hours of darkness,
implies a positive assertion on the art
of the defendant that the accident occurred at a time other than in the hours
of darkness.
I agree with
Mr. Hunt that there is no effective (difference between a refusal to admit a
fact and a denial of that fact. The exact time at which an accident occurred is
not normally of material importance, but it is material in this case in view of
the allegations of negligence in relation to light.
The fact
that the defendant has gone out of his way, whilst admitting the date and place
of the accident, to deny the time of its happening, raises to my mind a strong
interference that the defendant
considers the time of the accident to be a material factor in this case.
It would be
material if the time contended for by the defence is a time during the hours of
daylight, in which case those allegations of negligence relating to lights and
to failure to stop because of darkness would fail. If in fact the defendant
will contend at the trial that the accident occurred in the hours of daylight,
then I consider that the plaintiff is entitled to be so informed, in order not
to be taken by surprise.
In Thorp v.
Holdsworth (1876) 3 Ch.D. 637, the defendant pleaded as follows :-
“The
defendant denies that the terms of the arrangement between himself and the
plaintiff were definitely agreed upon as alleged"
Such a
denial was held by Jessel M.R. to be evasive, under Order XIX rule 12 R.S.C. as
it was then expressed, which was in identical terminology with that of Order 6
rule 9 of the Uganda Civil Procedure Rules. As the Master of the Rolls
commented "it is the very object we have always had in pleading to know
what the defendant's version of the matter is in order that the parties may
come to an issue". In my view the position in this appeal is comparable.
To say in a
defence that it is not admitted or that it is denied, that an event took place
at the time alleged in the plaint is in my opinion an evasive plea within the
meaning of Order 6 rule 9, especially when time as in this case may well be a
material factor. If the defendant is contending that the accident took place at
a time other than "at about 7.45 p.m." as pleaded in the plaint, then
to comply with Order 6 rule 9 he should specify the time for which he contends.
If he is not
so contending, he should not have traversed the allegation as to time. I
consider that the plaintiff is entitled to know what the defendant's version is
in relation to time of the accident, which has been put in issue by the
defendant.
I would
allow this appeal.
SPRY, J.A.:
I have had
the advantage of reading in draft the judgment of Law, J.A., in which
are set out the facts giving rise to this appeal and I do not think it necessary
to repeat them in full.
Briefly, the
position is that the appellant has averred that an accident took place at a
particular time and place. The respondent company has admitted that the
accident occurred and the place where it occurred but has refused to admit the
time. The appellant claims to be entitled to further and better particulars,
that is, he claims to be entitled to know at what time the respondent company
alleges the accident took place.
The High Court refused an order for particulars and
the appellant now appeals to this Court. The appeal turns on four rules of the
Civil Procedure (Revised) Rules, 1948.These are rules 3, 3A, 7 and 9 of Order
VI. Rule 3 provides for the ordering of further and better particulars; rule 3A
provides that an allegation of fact in any pleading if not specifically denied,
is to be taken to be admitted; rule 7 provides that every allegation of fact
must be dealt with specifically by a defendant; and rule 9 provides that a
denial must not be evasive.
The general
principle is, I think; set out in the judgment of Astbury, J., in Weinberger
v. Inglis (1916-17) All E.R. Rep. 843,
when he said
"As a general rule, the court never orders a
defendant to give particulars of facts and matters which the plaintiff has to
prove in order to Succeed, and this is especially the case where a defendant
has confined himself to putting the plaintiff to the proof of allegations in
the statement of claim, the onus of establishing which lies upon him."
Looking at
the matter on the simplest footing, the appellant has made certain allegations
which he must prove to succeed. The respondent company has made his task
somewhat easier by admitting certain of those allegations but the onus remains
on the appellant to prove those that are not admitted.
The court will, however, order a defendant to furnish
particulars where he is making positive averments and will also exercise its
discretion to order particulars where it believes that by so doing it will
narrow the issues and avoid surprise, and so reduce expense.
It has been suggested that in refusing to admit
(which, I agree, is for all practical purposes the same as denying) that the
accident occurred at 7.45 p.m., the respondent company is, in effect, asserting
that it occurred at some other time, and that, since the plaint contains
reference to a vehicle not having "any effective lighting" and to the
view being obstructed by "darkness", it may be assumed that what he
is asserting is that the accident occurred in day light. I am not persuaded by
that argument. Of course, in a sense, just as a coin has an obverse and a
reverse, so every negative can be expressed as a positive, but the question, as
I see it, is not whether a denial could have been expressed in a positive way,
but whether the defendant's intention is merely to deny or to set up a positive
case in contradiction. A defendant is perfectly entitled, if he wishes, to
adopt an entirely negative attitude, putting the plaintiff to proof of his
allegations, and if he does so, the plaintiff cannot, by asking for
particulars, compel him to make positive assertions.
On the other hand, of course, when a defendant adopts
a purely defensive attitude in his pleadings, he will not be allowed to conduct
his case on a different footing, or at least only on terms (Weinberger
v. Inglis, supra; Pinson v. Lloyds & National Provincial Foreign Bank, Ltd.
(1941) 2 All E.R. 636).
Again, I cannot say that there is likely to be any
question of surprise. The appellant has averred, and presumably believes he can
prove, that the accident occurred at about 7.45 p.m. He has been given notice
that that allegation will be challenged. If the allegation is material, and it
would appear that both sides think it is, the appellant will call all the
evidence he can to prove it.
I cannot see that he is in any way handicapped in the
preparation of his case. It is possible that there may be some extraordinary
development at the trial, but the court has a discretion to allow rebutting
evidence to meet any such situation, and for this purpose may, if necessary,
grant an adjournment, making any appropriate order as to costs. There remains the question whether the denial can be said
to be evasive. At first sight, there might seem an analogy with the
example given in rule 9.
If it is averred that a defendant received a
certain sum, it is evasive merely to deny the receipt of that sum. The
defendant must either say what sum he received, or that he received nothing.
On
consideration, however, I do not think the analogy a good one. A denial by a
defendant that he has received, say, £50, is, on the face of it, a denial of
liability and it is obviously misleading to the plaintiff and to the court if
he had in fact received £49. Here,
however, the issue is one of negligence and that is clearly denied. The time
when the accident occurred is not a primary issue. It may, or may not, be of
importance in assessing the evidence of negligence.
It is true that the appellant has referred to
"darkness" in his plaint but only in the particulars, and a defendant
is not required to plead to particulars (Chapple v. E.T.U. (1961) 3
All E.R. 612).
In my opinion, the denial was not evasive. For the reasons I have given, I
think the learned Judge was right in refusing to order particulars and I would
dismiss the appeal.
DE LESTANG
V-P.:
The facts
giving rise to this appeal are fully stated in the judgment of Law, J.A. and I
will not repeat them. Suffice it to say that the appellant, who was the
plaintiff in the court below, averred in his plaint that the accident on which
his claim was found occurred at 7.45.p.m. on the day and at the place stated.
The respondent admitted that the accident had taken place on the date and at
the place stated but did not admit that "it occurred at 7.45.p.m. as
alleged". As the appellant's case is partly founded on the accident having
occurred in darkness, the time is clearly a material factor in the case. I do
not think also that there is any material difference between a non-admission
and a denial.
It is contended for the appellant that in
these circumstances the respondent's defence is evasive and that unless he
gives particulars of the time when the accident occurred the appellant would be
taken by surprise at the trial if it were sought to prove that it occurred in
daylight.
I cannot see
any merit in the latter contention. Surely it is for the appellant to prove his
case and he knows that time is in issue. I fail to see how in these
circumstances he can say that he would be taken by surprise on the matter of
time.
As regards the allegation of evasiveness, a denial in
the form in which it was made in this case is an extremely common form of
pleading and does not seem to me to be embarrassing as it makes it quite clear
that time is in issue. The Civil Procedure Rules of Uganda on the subject of
particulars are not materially different from the rules of the Supreme Court in
England and consequently guidance may be obtained from the decided English
cases.
In Fox v. H. Wood (Harrow) Limited, (1962) 3 All
E.R. 1100, a workman put his foot in a hole in
the floor at his place of work; he fell and was injured. In an action by the
workman against his employers for damages for negligence, the defendants, by
their defence, alleged contributory negligence and pleaded "it is admitted
that the plaintiff suffered an accident on the date referred to in the
statement of claim during the course of his employment, but no admissions are
made as to the circumstances of the alleged accident."
The plaintiff applied for particulars of the accident
admitted and for a description of it, saying when and where it occurred. It was
held by the Court of Appeal that the defendants should not be ordered to give
particulars of the accident admitted.
I cannot distinguish the present case from that case,
and I would, with respect, endorse what Diplock, L.J. said in it.
"I might add that the only effect of permitting
particulars to be given where the pleading is in this form would be to dissuade
defendants from making such admissions as they can to limit the issues at the
trial."
I would
accordingly dismiss this appeal and as Spry, J.A. is of the same view, the
appeal is dismissed with costs.
See also: Weiberger v Inglis (1916-17)
All ER 844 (House
of Lords)
But see
Bank of Baroda (U) Ltd v Wilson Buyonjo Kamugunda, SCCA No. 10 of 2004
[Appeal from a decision
of the Court of Appeal at Kampala before (Okello, Engwau and Byamugisha.JJ.A.)
dated 3rd March, 2004 in Civil Appeal No.66 of 2002]
JUDGMENT OF TSEKOOKO, JSC
This is a
second appeal. It arises from the
decision of the Court of Appeal which overturned the judgment of the trial
judge, Katutsi, J., who had dismissed a suit instituted by the respondent to
recover shs 80m/= from the appellant.
For easy
reference I shall refer to the appellant as the defendant and to the respondent
as the plaintiff. The facts of this case
are as follows:
Two
brothers named Ham Kamugunda and Godfrey Katanywa, owned land upon which they
lived in Lake Mburo National Park in Mbarara District. Ham Kamugunda had a son called Wilson Buyonjo
Kamugunda, the plaintiff. At some point
in time, probably in 1980s, the Uganda Government acquired the land of the two
brothers, evicted them from the land and undertook to compensate them. The two brothers died in 1988 before
receiving the compensation for their land. The plaintiff got letters of
Administration to administer the estate of his father. In the course of his
search for the compensation, he learnt from officials of the Ministry of Lands
and from the Bank of Uganda that compensation had in fact been effected and
that a cheque for shs 80m/= had been issued in the names of the two dead
brothers and that the proceeds were in Baroda Bank (U) Ltd, the present defendant. It transpired then that indeed a Uganda
Government cheque No.E003100764 for shs 80m/= had been issued on 23rd December, 1996 in the names of the dead
brothers.
Apparently,
some strange persons impersonated the two dead brothers, got the cheque and
with the help of one David Mukasa were allowed by the defendant to open an
account in the names of the two deceased in the defendant's Kampala
Branch.
Thereafter
the impersonators withdrew the money and disappeared in thin air with that
money.
The plaintiff
failed to get the money. He instituted a suit in the High Court against the
defendant and David Mukasa claiming for shs 80m/= as special damages, interest
at 26% and general damages. The claim was based on negligence, conversion and
fraud. Later, the plaintiff withdrew the suit against David Mukasa.
The basis of the plaintiff's claim was that
the defendant acted negligently when it allowed David Mukasa and the other
strangers to open an account in the names of the dead beneficiaries of the
cheque and negligently allowed those strangers and Mukasa to bank the cheque
and also to withdraw the proceeds without verifying whether the persons drawing
the money were the true owners. In its
defence, the defendant admitted that it collected the cheque in the course of
its ordinary business and placed the proceeds to the credit of Ham Kamugunda
and Godfrey Katanywa account and that it had received payment thereof in
good faith and without negligence. It
averred that Ham Kamugunda and Godfrey Katwanywa appeared at its
premises and identified themselves. It
relied on S.82 of the Bills of Exchange Act in defence. It denied negligence.
During
what appears to have been a scheduling conference, the trial judge recorded the
following as facts agreed upon between the parties:
"Defendant
on or about 23/12/96 in its Kampala Branch opened an account-current is (sic)
the names of Kamugunda and G. Katanywa and admitted a cheque No.E003100764 to
the said account. Bank of Uganda cheque
drawn in the names of it. Kamugunda and
G. Katanywa for shs 80,000,000m/=(sic). The money was collected and credited to
that account and subsequently disbursed."
Two
issues were framed for determination by the trial judge. The first issue which was the substantial one
was -
"Whether
the bank was negligent in opening a bank account in the names of it (sic)
Kamugunda and G. Katanywa."
The
second issue was about reliefs.
After
trying the suit in which three witnesses testified for the plaintiff, and the
defendant offered no evidence, the learned trial judge answered the issue in
the negative and so he dismissed the suit.
Upon appeal by the plaintiff, the Court of Appeal, by a majority of two
to one, held that the plaintiff established his claim. It set aside the judgment of the trial judge
and instead awarded the plaintiff special damages as claimed in the sum of shs
80m/= with interest at 26% from 23rd December,
1996 till payment in full. The defendant has appealed against that decision to
this Court based on nine grounds.
Mr. Kanyemibwa
and Mr. Ahimbisibwe represented the defendant at the hearing of this appeal but
it was Mr. Kanyemibwa who actually argued the appeal. He proposed to argue grounds 1,2,8 and 9
separately but ground 3,4,6 and 7 together.
It is convenient to discuss ground 1,2 and 3 together.
The
complaints in these grounds are framed in these words -
"1.
The learned majority Justices of Appeal
erred in law in awarding a sum of shs 80,000,000/= to the respondent as
money had and received by the appellant.
2.
The learned majority Justices of
Appeal erred in law and fact in holding that in its pleading, the appellant did
not dispute the respondent's title or claim to cheque No.E003100764 in the sum
of shs 80,000,000/=.
3.
The learned majority of the
Justices of Appeal erred in law and failed to properly evaluate the evidence on
record in holding that the respondent adduced sufficient evidence proving title
to the said cheque."
Arguing
the first ground, Mr. Kanyemibwa contended that the plaintiff did not aver in
the plaint for "money had and received." Counsel relied on Paget's Law of Banking,
12th Edition.
Learned counsel further contended that the Court of Appeal erred in
awarding the whole of shs 80m/= to the plaintiff who had not proved a portion
of the money to which he was entitled.
For that contention Counsel relied on Joshi Vs Uganda Sugar Factory
(1968) EA 570.
Mr.
Keneth Kakuru, counsel for the plaintiff, opposed the appeal. On the first ground, learned counsel
submitted that the defendant admitted receipt of the money. As regards the second ground, Mr Kakuru
contended that there was no need to adduce evidence to prove plaintiff's title
to the cheque because title to the cheque was admitted and that is why at the
trial no issue in that regard was framed for determination.
It is
instructive to refer to relevant pleadings.
In his
plaint, the plaintiff averred that -
(a)
His father H. Kamugunda and G.
Katanywa owned the land which was taken over by the Uganda Government.
(b)
On 23/12/1996 cheque
No.E.003100764 for shs 80m/= in compensation for the said land was issued
payable to his father H. Kamugunda and G. Katanywa.
(c)
By 23/12/1996, H. Kamugunda and
G. Katanywa had died. The cheque was
therefore fraudulently obtained by one David Mukasa who obtained the proceeds
of the cheque through the defendant.
(d)
That the defendant was negligent
in that it allowed David Mukasa to use the cheque to open an account in the
names of the two dead men without verification of those men and in allowing the
withdrawal of the money without satisfactory identification of those entitled
to it.
(e)
That one Joseph Lukanga, a
servant of the defendant provided unsatisfactory identification of the two men
before Mukasa withdrew the money on account of H. Kamugunda and G. Katanywa.
In the 1st paragraph of its written statement of defence,
the defendant contented itself by just stating that it did not admit the
relationship between the plaintiff and H, Kamugunda or that the plaintiff was
the administrator of Kamugunda's estate.
In paragraphs 4 and 5 of the same written
defence, the defendant expressly admitted receipt of the cheque in the sum of
shs 80m/= and the collection of the amount which was put on the account of Ham
Kamugunda and G. Katanywa. Indeed, as noted earlier in this judgment before the
trial began it was agreed between the parties that that was the position. However the defendant relied on S.82 of the Bills
of Exchange Act for the proposition that it received the cheque, its
proceeds and operated Kamugunda and Katanywa account according to law. It therefore denied negligence.
Mr. Kanyemibwa relied on Joshi's case
(supra) for the view that in pleadings, an averment of not admitting facts
alleged by the opposite party amounts to a denial and so the other side must
prove its case. In my
considered view the plaintiff adduced sufficient evidence at the trial to
establish his relationship with the deceased and his entitlement to the cheque
and its proceeds. Furthermore, I think that pre 1998
judicial decisions such as Joshi's case on the effect of pleadings must
be evaluated in the light of the provisions introduced by the Civil
Procedure (Amendment) Rules, 1998.
For instance, Order 6 Rule 1 of CP Rules as amended requires parties to
summarise the evidence and to list the witnesses and documents they propose to
rely on at the trial. Accordingly the
defendant indicated in its summary of evidence that it would produce evidence
to prove that persons entitled to the cheque were properly verified. It also
named three witnesses.
No such evidence was adduced. So Joshi's case is not helpful.
During
the trial, the plaintiff and two other witnesses testified that his father Ham
Kamugunda and his brother Katanywa died in 1988, that is 8 years before the cheque for
compensation was issued in 1996. This
evidence had been substantially set out in the summary of evidence which was
annexed to the plaint. The plaintiff testified further that he is the
administrator of the estate of his father.
He was supported by Dawson Rugigi (Pw1). The plaintiff was hardly cross-examined on
his evidence. Nor was he challenged on
the relationship with the deceased nor on the fact of his status as the lawful
administrator of the estate of his dead father.
Indeed the defendant elected not to give evidence, not even to call
David Mukasa who was described in the statement of defence as a long standing
customer of the appellant who had introduced "Ham Kamugunda and Godfrey
Katanywa." Neither did the defendant call any of its employees to whom
the two persons were allegedly identified when the account was opened in the
names of the two dead brothers.
In its
written defence, the defendant averred, in para 5, that "the said Ham
Kamugunda and Godfrey Katanywa were duly introduced to the defendant by David
Mukasa a long standing customer of the defendant and their account was
opened in a regular manner."
Yet despite that express admission of the involvement of David Mukasa in
the opening of the account, the learned trial judge surprisingly accepted the
submission at the trial by defendant's counsel that -
"…………………
the plaintiff undertook to prove that the account in question was opened at the
instance of David Mukasa but there is no any iota of evidence that the said
person was so involved."
In this,
the learned trial judge erroneously acceded to misleading contentions of
defence counsel, because the involvement of David Mukasa at least in the
opening of the account was admitted by the defendant in its statement of
defence and in the summary of evidence annexed to that defence.
Mr.
Kanyemibwa's contention that the plaintiff never pleaded money "had and
received" in order to be entitled to it is, with respect, no basis for
saying that the plaintiff was not entitled to the money. Clearly, on the facts
of this case, the father of the plaintiff together with his brother (Katanywa)
were entitled to the cheque and the money.
Undoubtedly there is no evidence showing how much of shs 80m/= was due
to each of the two dead brothers. This
may be so probably because the two brothers might have been joint owners of the
land. This is explicable on the basis
that a single cheque was issued in their joint names, instead of two separate
cheques. Further the plaintiff was not
challenged in cross-examination about what portion of land did not belong to
his father. Since the plaintiff is the
lawful administrator of his father's estate he is entitled to claim the
money. Nobody else has come forward to
lay claim on any part of the money.
Needless to say, the defendant is not entitled to any portion of that
money. So the defendant cannot be the
one to require the plaintiff to establish title to only a portion of the money.
In her
lead judgment with which another member of the court concurred, Byamugisha,
JA., said this-
The
plaintiff averred in paragraph 4(a) and (b) of the plaint facts which show his
claim or title to the cheque. The
paragraph was couched in the following words:
"4(a)
The plaintiff's father H. Kamugunda owned land in Mburo National Park together
with the late G. Katanywa. The said land
was taken over by Government.
(b) on 23rd December, 1996 a cheque No.E003100764 for shs
80,000,000/= ……… drawn on the Bank of Uganda was issued payable to H. Kamugunda
and G. Katanywa being compensation for the above land."
The
learned Justice of Appeal then noted that in its reply the defendant simply
averred that it had no knowledge of the matters alleged in the above paragraph.
Consequently she concluded that the averments by the defendant did not dispute
the plaintiff's title or his claim to the cheque.
As title
to the cheque was not made an issue for determination the learned justice held
that it was not necessary to call evidence to prove matters that were not
disputed by the respondent although she found that the plaintiff had in fact
adduced evidence at the trial to prove title to the cheque.
I
respectfully agree with the view of the learned Justice of Appeal.
Mr.
Kanyemibwa referred us to passages in Paget's Book (Supra). First the passage at page 483 under the
heading "Entitlement to Immediate Possession" are not helpful
to the defendant's case. According to
the author, it is generally agreed, in stating the requisite for a plaintiff in
conversion, that the plaintiff must have been entitled to immediate possession
of the chattel at the date of conversion.
The author cites cases explaining circumstances when a plaintiff in an
action in conversion may or may not succeed.
In the present case, there is no dispute that the father of the
plaintiff was entitled to the cheque and to the proceeds of it. The plaintiff stood in the shoes of his
father upon becoming the legal administrator of the estate of his father. As I stated earlier, title to the cheque and
its proceeds is indisputable.
Earlier
Mr. Kanyemibwa raised the question of lack of pleading "money had and
received" in the plaint. At pages 490 and 491, Paget's Book (supra)
relied on by counsel states, inter alia, that wherever conversion lies, and
money has been received or negotiable instrument converted, the claimant many waive
the wrong of conversion and sue for "money had and received"
to his use. The author further opines
that the claims are usually joined in the alternative and that this is the form
in which the action is couched against a banker who has collected cheque for
someone without title. This is not the
case here.
All this
does not require discussion because the plaintiff's action against the
defendant was based on negligence whose basis was, inter alia, that the
defendant did not identify David Mukasa properly and that it was negligent in
allowing strangers to open an account and draw the money in the name of the
deceased persons.
As noted
already, the learned trial judge dismissed the suit on the basis that the
plaintiff failed to prove negligence.
In the
Court of Appeal, the plaintiff, argued grounds 2 and 3 which were complaints
against the findings of the trial judge that no negligence was proved against
the bank.
These
grounds were framed as follows: -
"2. The learned trial judge erred in law and in
fact when he did not find that the plaintiff had on a balance of probabilities
proved his case.
3. The learned trial judge erred in
law and in fact by applying the wrong principles of law to
the facts before him and thus reaching the wrong conclusion."
The
learned Justice of Appeal discussed arguments on these two grounds in these
words:
"These
two grounds concern proof of negligence and who had the burden to prove
it. Negligence when used in connection
with a banking transaction like the one we are dealing with, refers to breach
of duty to the possible true owner. The
test to be applied was laid down in the case of Taxation Commissioner English, Scottish and Australian Bank Ltd (1920) AC 683 where
it was held that the bank has a duty not to disregard the interest of the true
owner. Therefore it has a duty to make
inquiries if there is anything to arouse suspicion that the cheque is being
wrongfully dealt with. Establishing the
customers identity and the circumstances under which the cheque was obtained
can assist in doing so."
The
learned Justice of Appeal referred to three other English Courts decisions in
which provisions (similar to S.81 and 89 of our Bills of Exchange Act)
were considered. She relied on the
opinions of the English Courts in those three cases, re-evaluated the evidence
in the instant case and concluded that -
1)
The plaintiff had averred in the
plaint that the bank failed to verify the identity of David Mukasa who allegedly
introduced the two impersonators to the bank.
2)
Although the Bank denied allowing
Mukasa to open the account on which the cheque was deposited, the bank admitted
in its defence that Mukasa introduced the two customers who brought the cheque
and opened the account.
3)
The plaintiff proved that Ham
Kamugunda and G. Katanywa were dead.
4)
That the bank admitted that it
collected the cheque.
5)
That the plaintiff proved that
the two pictures in possession of the bank were not of Kamugunda and Katanywa
(two dead brothers).
6)
The bank had a duty to prove that
in opening the account and collecting the cheque, it exercised due care. She observed that it is a well known
recognised practice of bankers in this country not to open an account for a new
customer without first ascertaining the respectability of the customer. This is done by obtaining references and
letters of introduction from respectable customers of the Bank. In her view the
defendant adduced no evidence of the steps and precautions it took to verify
the identity of the two impersonators before opening the account and collecting
the cheque.
7)
She concluded that this was
negligence. Engwau, JA, concurred with these findings.
I
respectfully agree with the opinion of the majority Justices of the Court of
Appeal that the bank was negligent in not verifying the identifies of the two
strangers before allowing those strangers to open an account upon which they
deposited the cheque for shs 80m/=. This amount by ordinary standard was a huge
amount of money. It should have aroused
the curiosity of the defendant. I think
that Byamugisha J.A., properly re-evaluated the evidence on the record before
she concluded that the defendant was negligent.
Only one
issue was framed at the commencement of the trial. The issue was whether the bank was negligent
in opening a bank account in the names of Kamugunda and Godfrey Katanywa
without verifying their identity. The
contention of the plaintiff was that the bank was negligent in that it did not
take obvious steps to verify the identity of the two persons who opened an
account in the names of the two dead brothers.
The plaintiff proved that the land of the two had been acquired by
Government, which undertook to give compensation to the owners. The plaintiff's
investigations showed that the Government had issued out a cheque in the names
of his father and his uncle in the sum of shs 80m/= and that that cheque had
been banked with the defendant bank.
By the
time the cheque was issued out on 23/12/1996 and banked the father and his
brother had long died, having died eight year earlier in 1988. There was no evidence from the defendant bank
to rebut this evidence. The bank stated in its written defence that the two
people who opened the account were introduced by David Mukasa, a long standing
customer of the Bank. The bank did not
adduce any evidence showing who this David Mukasa, was and for how long he had
been a customer to the bank for purposes of showing that he was a reliable and
respectable customer upon which the bank could rely to allow the opening of a
new account for purposes of depositing a big government cheque.
Byamugisha.J.A,
relied correctly on S.106 of the Evidence Act for the view that the
particulars of negligence pleaded in the plaint that related to the manner of
opening the account and collecting the cheque, though pleaded by the plaintiff,
were facts especially within the knowledge of the defendant bank and, therefore,
the plaintiff had no burden to prove them. That section reads as follows: -
"In
Civil Proceedings, when any fact is especially within the knowledge of any
person, the burden of proving that fact is upon him."
On the
basis of these provisions, Byamugisha, JA found, and I respectfully agree with
her, that the burden was on the bank to call David Mukasa or evidence to show
who opened the account. Since the bank
averred in its statement of Defence and its summary of evidence that it was
Mukasa who introduced the two persons in whose names the account was opened
whereon the cheque was banked the bank bore the burden to establish this. On this basis it is more probable than not
that the alleged David Mukasa was involved in opening the account and in the disbursement
of its proceeds.
By
ordinary values, the amount of money involved was reasonably big. As opined by the learned Justice of Appeal,
it is a notorious practice in Banks in this country for a new customer to be
introduced by customers already known in the bank. The tendency is to require at least two
referees. The referees should be
reliable and respectable customers. From
the bank's averment in its written defence, the two men were introduced by
David Mukasa before the account was opened.
That implies that the men were strangers in the bank. They did not operate or have an existing
account with the bank. A Government Bank
of Uganda cheque was involved. Surely the defendant should have inquired how
the depositors were entitled to the money, who they were and from where they
came. The defendant bore the responsibility of establishing whether the bearers
of the cheque were the genuine payees or not before allowing them to deposit
the cheque and to draw its proceeds.
I am
satisfied that the respondent proved negligence against the bank. In these circumstance I agree that defendant
is not protected by S.81 of the Bill of Exchange Act.
Accordingly
grounds1 and 2 must fail.
Although
Mr. Kanyimibwa initially intimated that he would argue grounds 3,4 6 and
together, he actually argued ground 3 separately.
Mr.
Kanyimibwa referred to various passages in the judgment of Byamugisha, JA in
which the learned Justice of Appeal held that -
(b)
The plaintiff adduced sufficient
evidence to prove title to the cheque.
(c)
The plaintiff's evidence was not
hearsay.
(d)
The bank collected the proceeds
of the cheque.
Counsel
then contended that plaintiff's evidence was hearsay and so counsel urged us to
accept the dissenting opinion of Okello, JA, that the plaintiff failed to
establish title to the cheque.
Mr.
Kakuru argued grounds 3,4 and 5 together and supported the majority decision of
the Court of Appeal.
Okello,
JA, dissented on the basis that the Plaintiff had failed to prove title to the
cheque. According to the learned Justice
of Appeal, this was because the evidence of the plaintiff and his first witness
(PW1) did not establish that the cheque which was collected by the bank had
been for compensation and intended for the dead brothers, (Ham Kamugunda and
Godfrey Katanywa), rather than those other persons who appeared at the
defendant's Bank and opened the account in those names. Therefore according to the learned Justice of
Appeal, the plaintiff failed to establish a prima facie case that he was
entitled to the cheque. So the Bank was
not negligent in paying out the proceeds of the cheque. With greatest respect,
I think that the learned Justice of Appeal put a higher burden of proof on the
plaintiff than was necessary. On the
facts of this case it would be an extreme coincidence and highly unlikely that
two totally strange persons would by coincidence bear names identical to those
of the two dead brother, get also a government cheque bearing the same names
and the same amount of money and deposit it in the same bank where the Bank of
Uganda said the cheque for the dead brothers had been deposited.
Ground
three has no substance. I have already covered it in my discussion of grounds 1
and 2. In my opinion, Byamugisha, JA.,
properly and adequately re-evaluated the evidence before she concluded that the
plaintiff established title to the cheque.
Ground 3
must fail.
The
complaint in Ground 8 is that the majority Justices of Appeal erred in law and
fact in holding that although the particulars of negligence were not proved the
defect was cured by admissions of the defendant as contained in the written
statement of defence.
I
disposed of this ground when I considered grounds 1,2 and 3. Anyway
Mr.Kanyemibwa referred to pleadings of both parties and contended that the
defendant in paragraph 6 of its WSD specifically denied that Mukasa opened and
operated the account on which shs 80m/= were deposited. He contended that the Court of Appeal erred
in holding that the burden of proof shifted to the defendant. Mr. Kakuru submitted that upon proof by the
plaintiff that Ham Kamugunda and Katanywa were dead, the burden shifted to the
defendant to prove that the men were the ones who opened and operated the
account. Of course in para 5(ii) of its
WSD, the defendant averred that Ham Kamugunda and Godfrey Katanywa were duly
introduced to the defendant by David Mukasa, a long standing customer of the
defendant and the account was opened in a regular manner. In 5 (iii) the
defendant also averred that Ham Kamugunda and God Katanywa duly identified
themselves to the defendant.
However
the defendant neither explained in the same written statement of defence or the
summary of evidence annexed thereto nor gave evidence to show how the two
identified themselves. In compliance
with the provisions of the Civil Procedures Rules as amended in 1998,the
defendant, as stated earlier listed 3 witnesses as its witnesses. None was called. No explanation was offered why they were not
called or why they could not testify.
Para 6 of
WSD upon which Mr. Kanyimibwa relied was worded thus:
"The
defendant specifically denies tat the said account was opened by David Mukasa
and operated by him in the names of Ham Kamugunda and Godfrey Katanywa as
alleged in the plaint."
May I
point out at the risk of being lengthy that in its summary of evidence which
was annexed to the defence, the defendant stated the following:
"The
first defendant shall lead evidence to the effect that on 31st December, 1996 it opened a savings account in
the names of Ham Kamugunda and Godfrey Katanywa who appeared at the first
defendant's premise at Plot 18, Kampala Road and introduced by David Mukasa, a
customer of the first defendant. The said Ham Kamugunda Godfrey Katanywa and
David Mukasa duly identified themselves to the first defendant's staff upon
which the said account was opened. The
first defendant accepted the deposit of the cheque of shs 80,000,000/= on the
said account which on the face of it was drawn in favour of the said account
holders. The said account was operated
in accordance with the mandate given to the bank."
Needless
to say, this summary of evidence is part of defence pleadings. Two features in this summary are worthy of
note. First the two drawees of the
cheque were introduced to the bank by David Mukasa who was alleged to be a
customer of the bank. Second, the two
drawees and David Mukasa then identified themselves to the staff of the bank
before the account was opened and the cheque deposited on that account.
The
defendant never gave evidence. Only two
pictures of two strange men in whose names the account was apparently opened
were shown to the plaintiff. The plaintiff
denied knowledge of them and asserted that those were strangers. The pictures were even not produced nor
formerly tendered in evidence. No document in possession of the bank relating
to the opening of the account was ever produced in Court to show what steps
were taken in verifying the identities of the two strange men and even of
Mukasa. The bank claimed that the account was operated in accordance with the
mandate given. This mandate was not produced in Court either. Summary of evidence listed that mandate among
documents to be produced by the bank.
There is no evidence of what the mandate looks like. Did the account operators provide names and
specimen signatures? If so, how did they
look like? If no signatures, what was
the substitute? Again according to the
list of documents, which is part of defence pleadings, Ham Kamugunda presented
7 cheques and three savings withdrawal slips.
These were apparently in the possession of the defendant when this case
was instituted in the High Court. These
documents were listed as part of pleadings required by Order 6 Rule 1 as
amended by SI 1998 No.26. These
documents were not tendered in evidence.
They were not shown to the plaintiff or to his witnesses so that he
could establish whether, assuming his father Ham Kamugunda could write, he had
signed those documents (the cheques, the withdrawal slips and the
mandate). In such circumstances, it is
legitimate to draw an adverse inference that if such evidence was adduced it
would have been adverse to the bank to the effect that the bank was negligent
in the manner it allowed the account to be opened and to be operated. The bank bore the burden to show that it was
not negligent. In all probability the
account was opened and operated by David Mukasa. Therefore ground 8 must fail.
No
submissions were made on grounds 4,6 and 7.
I take it that the appellant abandoned these grounds. They must accordingly fail.
The last
ground is ground nine which was framed thus:
"The
learned Justices of Appeal erred in law in awarding excessive interest of 26%
p.a from 23rd December, 1996."
This
ground was argued in the alternative for reasons I cannot appreciate. I think that this is an independent ground.
Be that
as it may, Mr. Kanyimibwa cited S.26 of CP Act and our decision in Milton
Obote Foundation Vs Kennon Training Ltd (S.Ct. Civil Appeal No.25 of 1995)
(unreported) for the views that -
4.
Award of interest is
discretionary.
5.
The action in this case arose
from a tortuous act and not based on a commercial transaction.
6.
Court did not give reasons why it
awarded interest at 26% from, 23/12/1996.
Learned
Counsel urged us to grant the rate of 6%.
Mr.
Kakuru was of contrary views. That 26%
rate was proper because the court had to put the plaintiff in the same position
as before. That this was a commercial
transaction. That the Court rates
applied only after judgment.
The
plaintiff did not indicate in his plaint and when he gave evidence why he
claimed interest at the rate of 26%. In
written submissions at the trial, counsel for the plaintiff submitted that the
defendant was a banking institution having a commercial relationship with the
plaintiff who should get interest on his money for the use of which he was
deprived unlawfully. The learned trial judge said nothing about these
submissions other than dismissing the suit.
In the
Court of Appeal all the three justices recorded Mr. Kakuru who appeared for the
plaintiff (as appellant then) as having asked for interest at the rate of 21%
p.a from 23/12/1996.
Starting
with the submission on interest in the Court of Appeal the Court did not
explain why it awarded 26% instead of 21% asked for by the plaintiff in that
Court.
The law
on the subject of interest is well known.
By virtue of S.26 (2)-
"Where
and in so far as a decree is for payment of money, the court may in the decree,
order interest at such rate as the court deems reasonable to be paid on the
principal sum adjudged from the date of the suit to the date of the decree in
addition to any interest adjudged on such principal sum for any period prior to
the institution of the suit with further interest at such rate as the Court
deems reasonable on the aggregate sum so adjudged from the date of the decree
to the date of payment or to such earlier date as the court thinks fit."
It is
clear from these provisions that -
·
Where there is no agreement
between the parties as to the interest of rate payable, award of interest by
Court is discretionary. The discretion
must be exercised judiciously.
·
Interest can be award as follows:
(i)
Interest on principal sum prior
to the institution of a suit.
(ii)
On the principal sum at a given
rate from the date of filing a suit.
(iii)
Interest on aggregate sum
reflected in the decree till payment or earlier.
It is
evident that in awarding interest and at what rate the court is guided by the
circumstances of the case.
An award
of 26% as interest in this case is on the high side. The circumstances given do show that the
plaintiff lost use of money due to him but they do not show why he should get
the high interest rate of 26%. I would set aside the award of interest at the
rate of 26% p.m. I would substitute the rate of interest as follows: -
(a)
Interest at 10% p.a from 1/1/1997
to 31/12/1998 prior to the institution of the suit.
(b)
Interest at the rate of 8% p.a
from 31/12/1998 when the suit was instituted to 3/3/2004 when the Court of
Appeal gave judgment in favour of the plaintiff.
(c)
Interest at the rate of 6% p.a
from date of judgment till payment in full.
So ground
9 succeeds partially.
I would
dismiss the appeal with costs to the plaintiff in this court and in the courts
below.
I would
vary the decree of the Court of Appeal as regards the rate of the in the manner
discussed above.
JUDGMENT OF ODOKI, CJ
I have had the advantage of reading in draft the
judgment prepared by my learned brother, Tsekooko, JSC. I agree with him that this appeal should be
dismissed with the orders he has proposed.
As the other members of the Court also agree,
this appeal is dismissed with orders as proposed by Tsekooko JSC
JUDGMENT
OF ODER, JSC.
I have had the benefit of reading in draft the
judgment of Tsekooko, JSC.
I agree with him that the appeal should be
dismissed. I also agree with the orders proposed by him.
JUDGMENT OF KAROKORA, JSC:
I have had the advantage of reading in draft the
judgment prepared by my learned brother, Justice Tsekooko, JSC, and I agree
with him that this appeal has no merit and must therefore be dismissed with
costs to respondent as he has proposed.
JUDGMENT OF KANYEIHAMBA, JSC.
I have had the benefit of reading in draft the
judgment of my learned brother, Tsekooko, J.S.C and I agree with him that this
appeal be dismissed. I also agree that the respondent be awarded costs as
varied by the proposed order of Tsekooko, J.S.C.
Condition Precedent (Order 6 Rule
5)
Order 6 rule 5 states that:
“Any condition precedent, the performance or occurrence of which is
intended to be contested, shall be distinctly specified in his or her pleading
by the plaintiff or defendant, as the case may be; and, subject thereto, an
averment of the performance or occurrence of all conditions precedent necessary
for the case of the plaintiff or defendant shall be implied in his or her
pleading.”
Denial must be specific
Order 6 rule 8 states that:
“It shall not be sufficient for a defendant in his or her written
statement to deny generally the grounds alleged by the statement of claim, or
for the plaintiff in his or her written statement in reply to deny generally
the grounds alleged in a defence by way of counterclaim, but each party must
deal specifically with each allegation of fact of which he or she does not
admit the truth, except damages.”
See: Nile Bank v Kato (Supra)
Evasive denial
Order 6 rule 10 states that:
“When a party in any pleading denies an allegation of fact in the
previous pleading of the opposite party, he or she must not do so evasively,
but answer the point of substance. Thus, if it is alleged that he or she
received a certain sum of money, it shall not be sufficient to deny that he or
she received that particular amount, but he or she must deny that he or she
received that sum or any part of it, or else set out how much he or she
received. If the allegation is made with divers circumstances, it shall not be
sufficient to deny it along with those circumstances.”
NILE BANK LTD AND ANOTHER
v
THOMAS KATO AND OTHERS
HIGH COURT
OF UGANDA AT KAMPALA
(COMMERCIAL
COURT)
HIGH COURT
MISC. APPL. NO. 1190 OF 1999
(Arising
from Civil Suit No. 685 of 1999)
(Before: Hon
Lady Justice M.S. Arach -Amoko)
August 30,
2000
Contract –
Sale Agreement – Sale of private company and assets by shareholders – Indemnity
clause incorporated to protect buyer against claims by third parties – Breach
of indemnity clause
Civil
Procedure – Pleadings – Written statement of defence – Application to strike
out – Whether sufficient grounds sufficient for dismissal – Defence of
illegality – Whether applicable
Brief facts
The
Plaintiffs, Applicants in this matter, filed a suit against the
Defendants/Respondents seeking damages for alleged breach of a contract of
sale. In their plaint, the Plaintiffs stated that in 1990, the Defendants as
shareholders and on behalf of the other shareholders sold a company, Sanyu
Properties Ltd and it’s assets to the Plaintiffs. It was stipulated in the
contract of sale that the Defendants would indemnify the Plaintiffs against any
claims of the Departed Asians Property Custodian Board or other claimants. In
1997, the plaintiff discovered that two of the properties had been repossessed
and asked the Defendants to compensate them according to the terms of the
agreement. The Defendants neglected to do causing the Plaintiffs to file a suit
against them. The Defendants filed a statement of defence denying all the
Plaintiffs allegations in the plaint, and a defence that that the agreement was
illegal.
By notice of motion, the Plaintiffs applied under
Order 6 Rule 29 Civil Procedure Rules to Court to have the Defendants
written statement of defence struck off on grounds that it did not disclose a
reasonable answer to the Plaintiffs claim. The issue for court to decide was
whether the defence filed by the Defendants was reasonable, and the legality of
the agreement.
Held:
(i)
The defence filed by the defendants contained general
denials to the plaintiffs’ allegations, and did not give clear and specific
responses to the plaintiffs’ allegations. It thereby offended the provisions of
Order 6 rule 7 Civil Procedure Rules, which requires each party to
specifically deal with each allegation of fact that is denied;
(ii)
Basing on the provisions of Order 6 rule 5 of the Civil
Procedure Rules, the defence of illegality of the sale agreement on grounds
that provisions of the Companies Act were flouted could not hold against the
Plaintiff, since the issue of illegality was not specifically pleaded, and did
not indicate which provision of the Act was breached;
(iii)
The written statement of defence would be struck out
for failure to disclose a reasonable defence, and judgment entered in favour of
the plaintiff.
Cases
referred to:
Dever
Finance Co. Ltd v Harold G. Cold [1969] 1 WKL at 1877
Kahima &
Anor v UTC [1978] HCB
318.
Libyan Arab
Uganda Bank v Messrs Intrepco Limited [1985]
HCB 73
North Western
Salt Co. Ltd v Electrolytic Alkali Co. Ltd [I914] AC
Obidegwu F.v
D.B Ssamakadde Civil Suit
No. 59 of 1992 (Unreported)
Phillips v
Copping [1935] 1 KB 15
Warner v
Sampson [1959] 2
WLR 109 at P.114
Legislation
referred to:
Civil
Procedure Rules Order 6
rules 5, 7, 29
Expropriated
Act Sections 4,
5
Counsel for
Applicant: Mr. Byenkya.
RULING
ARACH AMOKO,
J: This application is by Notice of
Motion under Order 6 Rule 29 of the Civil Procedure rules for orders that:
(a) The Respondent's defence be struck out for failing
to disclose a reasonable answer to the Plaintiff s claim.
(b)
Judgement be entered for the Plaintiffs in the terms of the plaint.
The main grounds for the Application are that the
defence filed by the Respondents in HCCS No. 685 of 1999, discloses no
reasonable answer to the Plaintiffs claim in so far as it inter alia,
constitutes of general denials and does not allege any facts constituting
illegality. That it is a frivolous and vexatious defence and an abuse of the
process of court.
It is
supported by the affidavit of Godfrey Zziwa a legal officer of the 1st
Plaintiff/Applicant bank dated September 23, 1999. Patrick Iyamulemye Kato the
1st Respondent swore an affidavit in reply on May 24, 2000 on behalf
of both Respondents.
The brief
background to this application is that the Plaintiffs sued the Defendants under
HCCS No. 685 of 1999, for damages for breach of contract. In their 20 paragraph
plaint filed on the July 14, 1999 the Plaintiffs set out the facts constituting
the cause of action as follows:
“1. On August 17, 1990 the
Defendants on their own behalf and on behalf and on behalf of the other
shareholders in a limited liability Company known as Sanyu Properties Ltd,
Hereinafter referred to as “the company”), entered into a sale if their entire
interest in the Company and transferred the Company’s assets to the Plaintiffs
at the sum of Shs. 60,000,000/= (Uganda shillings Sixty Million). A copy of the
sale agreement is attached hereto and marked Annexture 'A'.
2. In terms of the above-mentioned
sale agreement, the Defendants sold all properties known as freehold Register
Volume 52 Folio 23 situated at Plot 44 Kampala Road and Freehold Register
volume 32 folio 7, Plot 46, Kampala Road to the Plaintiffs and in that regard signed
documents transferring title in the said properties to the Plaintiff and
delivered the certificates of title relating thereto to the Plaintiff.
3. At the time of the above sale,
the Defendants assured the Plaintiff that the above properties were free from
any claims and encumbrances. The Defendants undertook to indemnify the
Plaintiff against any claims of the Departed Asians Property Custodian Board or
any other claimants. Mention thereof was made in clause 9 of Annexture
"A".
4. It was explicitly agreed between
the parties and mention thereof made in clause 9 of the sale agreement that in
the event of a third party having a superior claim to the property than that
held by the Defendants, the latter were obliged to refund to the Plaintiff the
purchase price together with interest thereon at the Bank rate and they would
furthermore pay any damages that the Plaintiff may have suffered or incurred.
5. In April 1997, the Plaintiff was
reliably informed that one of the said properties had been reposed by M/S Central
Properties & Development Ltd and Certificates of Repossession No. 2890
issued in respect of plot 46 and Repossession Certificate No. 2994 dated 14th
January 1997 issued in respect of Plot 44, Kampala Road.
6. Searches in Ministry of Lands
confirmed that M/S Central Properties & Development Ltd had been
registered on January 16, 1997 as proprietors of both Plot 46 Kampala Road and
Plot 44 Kampala Road; vide Instrument Nos. 285089 and 285091 respectively.
Copies of the Certificates of title relating thereto are attached hereto and
marked Annexture "COO and "C".
7. On 7th May 1997 the Plaintiffs'
lawyers wrote to the Defendants to admit liability to indemnify the Plaintiffs.
A copy of the letter is attached hereto as Annexture "D".
8. On 14th May 1997, the Plaintiffs'
lawyers wrote another demand to the Defendants to give the Plaintiffs a clear
and unequivocal commitment to compensate the Plaintiffs in terms of the sale
agreement. A copy of the said letter is attached as Annexture “E”.
9. The 1st Defendant, by
way of reply in a letter dated May 15, 1997, sought to sideline their
contractual obligation to compensate the Plaintiffs by attempting to involve
the Ugandan government in the matter. A copy of the said letter is attached
hereto as Annexture "F".
10. The Plaintiffs' lawyers by a
letter dated May 19, 1997 clarified to the Defendants their contractual
obligations to compensate the Plaintiffs and requested the Defendants to
indicate clearly whether the Defendants challenged their liability to compensate
the Plaintiffs. A copy of the said letter is attached hereto as Annexture
"G 1".
11. In a letter dated May 21, 1997
written by the 1st Defendant and addressed to the Plaintiffs’
lawyers, the Defendants omitted to address the issue of liability to compensate
the Plaintiffs for the subsequent defect in title to the sold properties.A copy
of the letter is attached hereto as Annexture "G2".
12. Efforts to settle the said
matter between the parties were rendered fruitless.
13. The Plaintiffs’ entitlement to
charge interest at the Bank rate on the contractual sum in terms of the sale
agreement obliges the Defendants to pay to the Plaitiffs’ a sum of shs.
250,241.095/= (Uganda Shillings Two Hundred fifty Million Two Hundred forty One
thousand Ninety five). A copy of an account prepared by the 1st
Plaintiff reflecting this amount as at 2nd February 1999 will be adduced at the
hearing hereof and the accompanying letter as Annexture "H2"
14. By a letter dated March 1, 1999,
the Plaintiffs' invited the Defendants to have the matter placed before an
Arbitrator. A copy of the said letter is attached hereto as Annexture
"I".
15. In a letter dated 4th March
1999, the Defendants explicitly declined to have the matter placed for
arbitration hence entitling the Plaintiffs to file this suit against the
Defendants. A copy of the said letter is attached hereto as Annexture
"J".
16. Notice of intention to sue was
communicated to the Defendants and this cause of action arose in Kampala within
the jurisdiction of this Honourable Court.
17. WHEREFORE the Plaintiff prays
for judgment against the Defendants jointly and severally in the following
terms:
(a) Payment ofUg.shs. 250,241,095/=
(b) Interest on (a) at the Bank rate
from 2nd February 1999 till payment in full.
(c) General damages for breach of
contract.
(d) Interest on ( c) from date of
judgment till payment in full.
(e) Costs of the suit.
(f) Any other and such further
relief as the Honourable court deems fit.
Dated at Kampala the 4th day of June
1999.
Signed
Counsel For The Plaintiffs”
By way of a defence, the Respondents filed the written
statement of defence:
“Save
what is hereinafter expressly admitted, the Defendants deny each and every
allegation of fact in the plaint as if the same were set forth verbatim and
traversed seriatim.
1.
Paragraphs 1 and 2 of the plaint are admitted and the Defendants’ address of
service for purposes of this suit shall be c/o Tumusiime, Kabega & Co.
Advocates, P.O. Box 21382, Kampala.
2.
Paragraphs 3,4,5,6,7,8,9,10,11,12,13,14,15,16,17,18,19, and 20 are denied and
the Plaintiffs shall be put to strict proof thereof.
3.
Without prejudice to the foregoing, the Defendants shall in answer to
paragraphs 3 to 20 of the plaint state that the sale was illegal in so far as
the provisions of the Companies act were flouted and hence the Defendants are
not in any way liable to the Plaintiffs and the "loss lies where it
falls".
4.
In the alternative but without prejudice to the foregoing, the Defendants shall
aver that they only sold their shareholding in the company to the Plaintiffs
and the rest of the provisions of the agreement were legally meaningless.
5.
Further in the alternative and without prejudice to the foregoing, the
Defendants shall aver that there has never been any claim on the property by
DAPCB or by any other claimant which the Plaintiffs unsuccessfully defended.
WHEREFORE the Defendants pray that
the suit be dismissed with costs.
Dated at Kampala this July 9,1999.
Signed
Counsel For The Defendants.”
In paragraphs 4 and 5 his affidavit in support
of the application, Mr. Zziwa deponed that he has read and understood the
defence filed by the Respondents and that he verily believes, on the basis of
his training as a lawyer and on the advice of his advocates that it does not
disclose any reasonable answer to the Plaintiff s claim in so far as it
constitutes of general denials and does not allege any facts constituting
illegality that it is a frivolous and vexatious defence and an abuse of court
process.
Mr. Byenkya, learned counsel for the Applicant argued
the application on the basis of the said affidavit; and submitted firstly, the
pleadings in paragraph 1 of the Written Statement of Defence where the
Defendants deny the allegations in paragraphs 3 to 20 of the plaint is a
general denial. It therefore offends the provisions of Order 6 rule 7 of the Civil
Procedure Rules which provides that a party must deal specifically with
each allegation of fact which it does not admit. That this rule is mandatory,
and a defence that offends the rule is bad and should be struck off and
judgement entered in favour of the Plaintiff. He cited the case of Obidegwu
F.v D.B Ssamakadde Civil Suit No. 59 of 1992 (Unreported) by Tinyinondi, Ag. J. as he then was, in
support of this point.
Secondly, Mr. Byenkya submitted that paragraph 3 of
the written statement of defence offends Order 6 rule 5 of the Civil
Procedure Rules which requires the Defendant to set out the facts
constituting illegality. It says that the sale was illegal in so far as the
provisions of the Companies Act were flouted. This plea does not tell the
Plaintiff anything about the facts or acts which are alleged to be illegal. It
is just a general statement which does not disclose what the defence is. It is
also a general denial which covers 17 paragraphs of the plaint.
Thirdly, the alternative defence in paragraph 4 of the
Written Statement of Defence does not disclose any defence known in law. It
says that the Defendants shall aver that they only sold their shareholding in
the company to the Plaintiffs and the rest of the agreement were meaningless.
Fourthly,
Mr. Byenkya submitted that paragraph 5 of the written statement of defence is
not a reasonable defence in light of the copies of the certificates of title in
respect of the two plots clearly indicating that the Repossession Certificates
were duly registered thereon. The paragraph says that the Defendant shall aver
that there has never been any claim on the property by the DAPCB, or any other
claimant which the Plaintiffs unsuccessfully defended.
Finally, and in view of the above arguments,
Mr. Byenkya submitted that there is no reasonable answer on record and to
continue with the trial will just waste the court’s time and delay justice, and
he prayed that the written statement of defence be struck out, judgment
be entered in favour of the Plaintiff for the purchase price and the
suit be set down for formal proof to determine the question of interest
and general damages. That he would not object to the Defence participating in
the formal proof.
Ms. Khalayi Lilian, learned counsel for the Defendants
opposed the application. She maintained that the written statement of defence
filed on behalf of her clients disclose a reasonable answer to plaint.
That paragraphs 2 and 3 of the written statement of defence read
together are not a general denial because they disclose the defence of illegality
based on the Companies Act. That details can only be given in evidence,
so you do not have to plead specifically, she cited the case of Dever
Finance Co. Ltd v Harold G. Cold [1969] 1 WKL at 1877.
In the alternative, learned counsel proposed that
since the case has not yet been set down for hearing, the Defendant may apply
for leave to amend the written statement of defence to include the
details of illegality.
As regards
paragraph 4 of the written statement of defence, the alternative defence is
that the Defendants/Respondents only sold their shareholding in the company.
They were therefore not responsible for any indemnity.
In her view
paragraph 5 of the written statement of defence is a reply to the Plaintiff's
claim denying a set of facts that arose out of the contract.
Finally,
counsel submitted that the pleadings were closed in 1999, and the Plaintiff has
not made any efforts to set down the suit for hearing. Counsel urged court not
to condemn the defendants unheard but to set down the suit for hearing.
Order 6 Rule 29 of he civil procedure Rules under
which the application was brought, gives court discretion, upon application, to
order any pleading to be struck out of the ground that it discloses no
reasonable answer, or where it is shown to be frivolous and vexatious. In the
case of Libyan Arab Uganda Bank v Messrs Intrepco Limited [1985] HCB 73. Odoki, J,. as he then was held in a similar
application that:
"The
discretion given to the court under Order 6 Rule 29 to strike out pleadings
should only be exercised in plain and obvious cases since such applications
were not intended to apply any proceedings which raised a serious question of
law."
In the case it was further held that;
"It
is well established that in considering applications under Order 6 rule 29 the
court should look at the pleadings above and any Annextures thereto, and not
any subsequent affidavits"
Mindful of
the above authority, I now proceed to examine the pleadings in HCCS No. 685/99
together with the Annextures thereto in order to determine whether the
written statement of defence raises any reasonable answer to the plaint. I have
reproduced the relevant paragraphs of the plaint and the written statement of
defence earlier on, I will not repeat them here.
As can be
clearly discerned from the plaint. The Plaintiffs' claim is for breach of
contract based on a contract signed between the parties on August 17, 1990; a
copy of which is attached to the plaint as Annexture "A" in
particular, Clause 9 thereof which provides:
“9. The vendors hereby warrant that
the titles to the said plots are free of any claims and in cumbrances and they
undertake to indemnity (sic) the purchasers against any claims by the Departed
Asians Property Custodian Board or any other claimants. Should any claim arise
and cannot be successfully defended by the purchasers, the vendors hereby
undertake to refund to the purchasers the purchase price together with interest
at bank rate and pay any damages the purchaser may have suffered”
The
Plaintiffs’ case is that in August 1990, the Defendants sold Sanyu Properties
Ltd together with its assets including plots 44 and 46 Kampala Road under the
said agreement. The Plaintiffs relied on Clause 9 above which entitled them to
a refund of the purchase price together with interest thereon at in case the
property is successfully claimed by DAPCB or any other claimants. In 1997,
April, M/S Central properties & Development Ltd repossessed both
properties. The Plaintiffs invoked the provisions of clause 9 and demanded for
the refund of their money but the Defendants refused. The sum demanded now is
in excess of shs. 250,241,095 inclusive of interest and consequential expenses.
The Plaintiffs attached copies of the Certificate of Title in respect of the
two properties which indicate that the certificates of Repossession by M/S
Central properties Ltd were duly registered thereon.
The issue therefore is, whether the defence filed in
court is a reasonable defence under Order 6 rule 29 of the Civil Procedure
Rules, under which this application is made. Mr. Byenkya, learned counsel
for the applicant says it does not amount to a reasonable defence. Ms Khalayi
contends that it does.
In the opening statement of written statement of
defence the Defendants deny each and every allegation of fact in the plaint as
if the same were set forth verbatim and traversed seriatim.
This is known as a general traverse and it is usually
allowed at the beginning or at the end of the written statement of defence. The
purpose of a general traverse is to deny material facts in the statement of
claim which the Defendant inadvertently omitted to deal with specifically; See:
Warner v Sampson [1959] 2 WLR 109 at P.114 CA.
The Defendants however make a general denial of
paragraphs 3-20 of the plaint in paragraph 2; they plead illegality in
paragraph 3; in paragraph 4, they admit having sold only their shares, and aver
that the rest of the agreement is legally meaningless; and in paragraph 5, they
aver that there was never a claim on the properties in question by the DAPCB or
any other claimant.
In my view, the written statement of defence in
general and paragraph 2, in particular, does indeed offend the provisions of
Order 6 rule 7 of the Civil Procedure Rules in the it is a general
denial. The rule provides:
“7. It shall not be sufficient for a Defendant in his written statement
to deny generally the grounds alleged by the statement of claim, or for the
Plaintiff in his written statement in reply to deny generally the grounds
alleged in the defence by a Counterclaim, but each party must deal specifically
with each allegation of fact of which he does not admit the truth except
damages.”
According to Odgers
principles of Pleading and Practice, 22nd Edition at page 136,
“It
is not sufficient for a Defendant in his defence to deny generally the
allegations in the statement of claim, or for a Plaintiff in his reply to deny
generally the allegations in a Counterclaim, but each party must traverse
specifically each allegation of fact which he does not intend to admit. The
party pleading must make it quite clear how much of his opponent's case
he disputes. Sometimes in order to deny the rule and to deal with
every allegation of fact of which he does not admit the truth, it is necessary
for him to place on record two or more distinct traverses to one and the same
allegation. Merely to deny the allegation in terms will often be ambiguous.”
The object of pleadings is to bring the parties to a
clear issue and delimit the same so that both parties know before hand the real
issues for determination at the trial. See: Kahima & Anor v UTC
[1978] HCB 318.
In the case
of Obidegwu v D.B Ssamakade (supra) the Plaintiff brought an action
against the Defendant for breach of contract by not delivering possession of a
house he had leased from the Defendant, for a term of 3 years. The Defendant
contended that the non delivery of the said house was because the
Plaintiff/lessee had not paid the second installment of rent. Tinyinondi
J. held inter alia,
that the Defendant's pleadings did not deny the existence of the lease
agreement, because they just denied generally the grounds of the claim of the
Plaintiff, without specifics as to whether the alleged lease existed or not.
The learned Judge held that Order 6 rule 7 is mandatory. He said;
“I
hold that this rule is mandatory as it clearly states so. In the case before me
the existence of a lease agreement between the parties was alleged to exist. A
photocopy of it was Annexed to the plaint. This was an allegation of fact. If
the Defendant did not admit it, he ought to have specifically dealt with it. He
did not”
Likewise in the case the subject of the instant
application, the Plaintiffs alleged the existence of an agreement of sale between
the two parties, and a copy thereof was attached. Furthermore, they alleged an
indemnity clause under the said agreement, which entitled them to a refund of
the purchase price plus interest and other consequential expenses in case of
any claim by 3rd parties and DAPCB. These were allegations of fact.
If the Defendants did not admit them, they ought to
have specifically dealt with them. They did not. The second issue is the
question of illegality. Under order 6 rule 5, matters to be specifically pleaded
include facts showing illegality either by statute or common law. The rule
provides:
“5. The Defendant or Plaintiff, as the case may be, shall raise by his
pleading all matters which show the action or Counterclaim not to be
maintainable, or that the transaction is either void or voidable in point of
law, and all such grounds of defence or reply as the case may be, as if not
raised would be likely to take the opposite party by surprise, or would raise
issues of fact not arising out of the proceedings pleadings, as, for instance,
fraud, limitation act, release, payment, performance, or facts showing:
illegality either by statute or common law”. (The underline is mine).
On the
subject of illegality, Odger’s Principles
of Pleading and Practice, 22nd Edition, states at page 185;
“The defence that a contract is a
wager within the Gaming Acts should be specially pleaded; and the facts which
are relied on to bring the transactions within those Acts should be stated.
However, the court itself will take notice of any illegality of the contract on
which the Plaintiff is suing if it appears on the face of the contract or from
the evidence brought before it by either party, and even though the Defendant
has not pleaded illegality. Illegality once brought to the attention of the
court, overrides all questions of pleadings, including any admissions made
therein. Otherwise where the contract is not ex facie illegal as a general rule
the court will not entertain the Question of illegality unless it is
specifically pleaded and the court is satisfied that it has before it all the
necessary facts concerning: the contract setting”.
In paragraph
3 of their defence, the Defendants plead that: “the sale was illegal in so far
as the provisions of the Companies Act were flouted”.
The facts which are relied on to indicate that
the sale in question contravenes the provisions Companies Act are not
pleaded. The specific section of the Companies Act flouted is not
stated; and yet the Companies Act has over 300 sections. This omission in my
opinion is likely to take the Plaintiffs by surprise and therefore offends the
provisions of Order 6 rule 5 of the Civil Procedure Rules. See: also, North
Western Salt Co. Ltd v Electrolytic Alkali Co. Ltd [I914] AC; Phillips v
Copping [1935] 1 KB 15 at page 21
Per Scranton LJ.
The alternative defence which says that the
rest of "rest of the provisions of the agreement were legally
meaningless" also do not disclose any defence known in law, as Mr. Byenkya
rightly said. Finally, the defence in paragraph 5 is in my view a ‘sham’
defence in view of the photocopies of the Certificates of titles in respect of
plots 44 and 46, Kampala Road attached to the plaint. They show that Central Properties
and Development Limited of P.O. Box 98, Kampala, were issued Certificates
Authorising Repossession No. 2890 dated June 26, 1996 Certificate No. 2994
dated January 14, 1997 under the provisions of section 4 and 5 of the Expropriated
Act; and the said certificates duly registered on the certificates of
title. The defence that there has never been any claim on the property by DAPCB
or any other claimant which the Plaintiffs unsuccessfully defended is therefore
not only a sham but outrageous; and should be treated as such. All in all, I
find that the defence filed does not disclose any reasonable defence to the
plaint, it is a general denial and it is frivolous and vexatious and is
accordingly struck out. In the result, judgment is hereby entered for the
Plaintiffs against the Defendants for the shs. 60 million, being the purchase
price paid by the Plaintiffs under the agreement. The rest of the claim and in
particular the, issue of interest and general damages shall be set down for
formal proof on the October 18, 2000. The defence counsel is free to
participate in the formal proof as suggested by Mr. Byenkya.
Gunter Piber & Another v E Krall Investments (U) Ltd & 4
Others HCMA 103 of 2008 (HC Jinja)
ARISING FROM CIVIL SUIT NO. 31 OF 2008
1.
GUNTER PIBER }
2.
BUWEMBE BREWERS }
::::::::::::::::::APPLICANTS/PLAINTIFFS
& DISTILLERS (U) LTD. }
VERSUS
1.
E. KRALL INVESTMENTS (U) LTD }
2.
DRB DEUTSHCE ROHSTOFF & BERGBAU }
3.
DRB MINING (U) LTD }:::::::: RESPONDENTS/
4.
THOMAS EGGENBURG }
DEFENDANTS
5.
JOSEPH BYAMUGISHA }
RULING
The applicants who are the plaintiffs in the main suit brought this
application under Order 6 rules 8 and 30, Order 52 rules 1 and 3 of the Civil
Procedure Rules (CPR) and s. 98 of the Civil Procedure Act (CPA) for orders
that the respondents’ defence in the main suit be struck out for failure to disclose
a reasonable and specific response to the applicants’ claim.
They also sought an order that judgement be entered in favour of the
applicants. In the event that the above orders were granted, the applicants
sought to have the main suit set down for formal proof, and for costs of the
application to be provided for.
The applicant’s application was
supported by the affidavit of Ronald Tusingwire, an advocate practicing with
the firm of Kaggwa & Co, Advocates who are counsel for the applicants,
which was dated 16/06/08.
The background to the application
was that on 22/05/08, the applicants filed Civil Suit No. 31 of 2008 against
the respondents. The respondents filed a
WSD on 10/06/08. It is that WSD that is
being challenged in this application. In
order to bring clarity to the issues which are specifically about the
pleadings, I shall reproduce the important parts of the applicants’ claim
starting with paragraph 2 of the plaint.
2.
The 2nd plaintiff is a limited liability company
incorporated under the laws of Uganda and whose address of service for purposes
of this suit shall be c/o Kaggwa & Co. Advocates, Plot 3 Pilkington Road,
NIC Building, Annex, P. O. Box 6624, Kampala Uganda.
3.
The 1st, 2nd and 3rd
defendants are bodies corporate and are engaged in the business of mining in
Uganda and elsewhere, the Plaintiffs’ advocates undertake to effect service of
court process upon them.
4.
The 4th and 5th Defendants are adult
male Austrian and Uganda respectively, believed to be of sound mind and are
Directors in the 1st Respondent and the plaintiffs’ advocates
undertake to effect service of court process upon them.
5.
The plaintiff’s cause of action against the defendants
jointly and severally is for a permanent injunction restraining the defendants
from interfering, dealing with, disposing off (sic) and transacting in any way
with the plaintiffs’ interest as licencees on Plot M25, LRV 341, Folio 13, Land
at Masese Jinja District and from breaching the agreement between the
plaintiffs and the defendant, General damages and the costs of this suit.
6.
The facts constituting the plaintiff’s cause of action
against the defendants jointly and severally arose as hereunder;
a)
By an agreement dated 20th May 2005, the
plaintiffs obtained a licence from the 1st defendant comprising of a
building wherein they own and operate an industry engaged in brewing and
distilling of alcohol for sale in exchange for provision of security for the 1st
defendant’s assets on the suit land. (See Annexure “A”).
b)
During the subsistence of the said licence the plaintiffs
and the defendants orally agreed that the said licence was to run for the whole
period of the lease from Kilembe Mines Limited on condition that the plaintiffs
pay ground rent, premium and the 1st defendant’s legal fees.
c)
The said oral agreement arose out of a suit filed by Kilembe
Mines Limited against the 1st defendant for breach of the lease
agreement for the suit property of which the plaintiffs fulfilled their
obligation under the oral contract by paying the legal fees for the out of
court settlement, premium and ground rent for the lease to Kilembe Mines
Lawyers, M/s C. Mukiibi-Sentamu & Co Advocates. (Receipts and the consent
judgment are attached as “B” and “C” respectively).
d)
The defendants have over time approached the plaintiffs to
advance them money for their expenses which the plaintiff have so far lent them
money totalling to US$ 150,000 (United Stated Dollars one hundred fifty
thousand only) of which part of the money was to be further consideration for
the licence.
e)
On 25th May 2005, the plaintiffs also purchased a
Metallurgical plant including a steel building together with a mobile crane ATT
480 (HAZET) from the 1st respondent (sic) and paid valuable
consideration of Ug. Shs 8,000,000/= (Uganda shillings eight million only).
(See Annexure “D”).
f)
The plaintiffs have been in possession of the suit land
since 1996 and carry out their business thereon.
g)
The 1st, 2nd, 4th and 5th
Defendants have in total breach of the various agreements enjoyed by the
plaintiffs against them incorporated a sham company known as DRB Mining
(Uganda) Ltd., the 3rd Defendant, to evict the Plaintiffs and take
over their plant and mobile crane. (See resolution and notice of eviction
marked “E” and “F”).
7.
The plaintiffs shall aver and contend that the above actions
of the defendant breach the licence and other oral agreements, entitles them to
an injunctive relief.
8.
That the defendant’s threats of eviction have caused grave
mental torture to the 1st plaintiff and loss of income to the 2nd
plaintiff as its business has been greatly affected of which (sic) they are
entitled to damages.
9.
By reason of all the foregoing, the plaintiffs will contend
that there is just cause for the issuance of a permanent injunction against the
respondents.
10.
The plaintiffs have suffered damage, loss of income and
inconvenience as a result of the defendants’ acts and omissions.
The applicants thereafter stated
that they issued a notice of intention to sue and that this court has
jurisdiction in their cause, and listed their prayers, viz: a permanent
injunction against the respondents, general damages, other reliefs that the
court may deem fit, and the costs of the suit.
In
the respondent’s WSD filed on 10/06/08 they generally denied all the paragraphs
of the plaint in the head paragraph, stating that they were all not admitted
and had been traversed seriatim, as is the usual practice in suits of this
nature. They then answered the plaint in
the following manner:
1.
Paragraph 1 is rooted
(sic) but the defendants make no admissions as to the soundness of mind of the
1st plaintiff.
2.
Paragraphs 2, 3 and 4
of the plaint are noted but no specific admissions are made.
3.
Paragraph5 is denied
in as far as if (sic) alleges a cause of action.
4.
Paragraph 6 is denied
in its entirety and the plaintiffs shall be put to strict proof of their
frivolous allegations.
5.
Paragraph 7, 8, 9 and
10 are completely false allegations and claims that are not sustainable in law.
6.
The defendants’ reply
to all the allegations in the plaint shall show that the plaintiffs have no
registerable interest in the law (sic) in issue.
7.
Further the defendant
shall show this suit to be a frivolous and vexatious one, intended to evict one
of the defendants from its land and will pray for its dismissal with costs to
be met personally by the plaintiff’s counsel.
8.
Further the defendant
will show that the suit is filed in bad faith because there is already a
pending suit previously filed by the plaintiff and with the same issued arising
and plaintiff’s counsel shall be faulted for unprofessional conduct.
9.
The defendants shall
show that a mere licensee has no right at law to evict the land owner or obtain
the remedies such as the ones sought by the plaintiffs in this suit.
Wherefore
the defendants pray that the plaintiff’s suit be dismissed with costs.
On 18/06/08 the applicants filed
this application to have the aforesaid WSD struck out under Order 6 rule 30 of
the CPR. The respondents responded by
filing an amended WSD on 23/06/08, without leave of court. The respondents now claim that the amended
WSD is the operative defence that should be considered by this court, and not
the WSD that was filed on 10/06/08, which was challenged in this application.
The
applicant’s application was based on the grounds that the written statement of
defence (WSD) filed by the respondents on 10/06/08 disclosed no reasonable and
specific response to the applicant’s claim as is required by Order 6 rule 8, in
as far as it constituted of general denials to the claims made in the plaint. Further that paragraphs 3 to 6 of the said
WSD contained general denials to paragraphs 5 to 10 of the plaint and did not
respond specifically to each of the allegations of fact that the respondents
did not admit in their defence. It was
also contended that the respondents’ defence was prolix, frivolous and
vexatious and an abuse of court process and that it was thus just and equitable
that the defence be struck out since to continue with the trial would be a
waste of courts time and a delay of justice.
Further grounds that were contained
in the affidavit in support were more specific complaints about the respondents
WSD. The applicants took issue with
paragraphs 3 to 5 of the WSD for not responding specifically to the existence
of a licence evidenced by Annexure A to the plaint. Annexure A was a letter from the 1st
respondent to the 1st applicant confirming an agreement entered into
between the 2 parties allowing the 2nd applicant to use all the
equipment on site in Jinja as well as all equipment and other assets of E.
Krall Investments Ltd (at the site).
The applicants further stated that
paragraph 6 of the WSD did not respond specifically to paragraph 6 (a) through
(g) of the plaint, i.e. the role of each of the respondents in evicting the
applicant from the suit premises, incorporation of a sham company (the 3rd
respondent) and taking over of the applicant’s plant and mobile crane. The applicants also complained that paragraph
7 of the WSD was a general denial without any mention of the agreements annexed
to the plaint and the consent judgment referred to therein between Kilembe
Mines Ltd. and the 1st respondent.
It was further stated that the WSD did not respond to the allegation
that there was a contractual licence enjoyed by the applicants on the
respondent’s land. Further that
paragraphs 8 and 9 of the WSD were evasive denials in so far as they did not
respond to paragraphs 6 and 6 (d) of the plaint wherein the applicants raised
the debt of UDS 150,000 owed by the 1st respondent to the
applicants.
At
the hearing of the application, Mr. Kaggwa for the applicants repeated the
contents of the affidavit in support and submitted that the stated paragraphs
offended the provisions of Order 6 rules 8 and 10 of the CPR and that as a
result the WSD ought to be struck out and judgement entered in favour of the
plaintiffs/applicants after which the suit should be set down for formal
proof. He relied on the decision in the
case of Nile Bank Ltd. v. Thomas Kato & Others [1997-2001] EA, 325
where it was held that a defence such as the one filed by the respondents in
the main suit offended the provisions of Order 6 rule 8 and it was struck
out. He also relied on Odgers’
Principles and Practice in Civil Actions in the High Court of Justice, Ed. 22
where it was stated that each party must traverse specifically each fact that
he does not intend to admit. The party
pleading must make it quite clear how much of his opponent’s case he disputes
and that merely denying will often be ambiguous.
The respondents filed an affidavit
in reply opposing the application.
Richard Tamale, an advocate with the firm of Andrew & Frank
Advocates, counsel for the respondents, swore the affidavit on 19/08/08. The facts on which the respondents sought to
oppose the application as deduced from the affidavit in reply were briefly that
the current application was filed prematurely because the respondents were
still well within time to file an amended WSD without leave of court. The respondents further contended that they
had subsequently filed an amended written statement of defence with the result
that the current application ought to be dismissed. It was also stated by the respondents that
the current application before court was “an exercise in futility and a vain
attempt” by the applicants to evict the 1st respondent from its
land on the strength of a licence; that a permanent injunction could not be
granted to a licensee in a manner that would disqualify the title of the
registered proprietor (the 1st respondent). The respondents asserted that the defence
complained of sufficiently responded to the “wild allegations” and prayers set
out in the plaint, which would be largely determined on matters of law.
At the hearing of the application,
Mr. Andrew Bagayi for the respondents repeated the contents of the affidavit in
reply and submitted that the decision in the suit was to be made solely on
points of law. He contended that the
main issue in the suit would be whether the applicants were entitled to a
permanent injunction against the respondents and that the WSD clearly addressed
that point. He further contended that
though the applicants complained that the WSD did not address bad faith because
it had not been particularised, paragraphs 6 and 9 of the WSD addressed
it. Mr. Bagayi also submitted that
though the applicants complained that the respondents were threatening to take
away the mobile crane and plant from them, that fact had not been
substantiated; besides the crane had always been and is still in the possession
of the applicants.
It was also the contention of Mr.
Bagayi that the amended WSD filed by the respondents on the 23/06/08 dates back
to the filing of the first WSD and that it should be considered as the
operative pleading for the respondents.
Further that in the presentation of their application the applicants had
not demonstrated how the WSD complained against was going to prejudice their
case. Mr. Bagayi was also of the view that the WSD complained of
falls squarely within the category of cases that are addressed by Article 126
(2) (e) of the Constitution of the Republic of Uganda. That the matters that had been raised by the
application were mere technicalities and if the application was allowed by
court and the WSD struck out, substantive justice would not have been
done. He prayed that the amended WSD be
allowed in the spirit of Article 126 (2) (e) of the Constitution.
In order to save time court allowed
the respondents to raise an objection against the plaint though it had neither
been specifically pleaded in reply to the instant application nor in the
WSD. Court considered that this would
not prejudice either of the parties and would enable court to deal with all
issues to do with pleadings at one go.
The respondents’ counsel then raised 2 objections, firstly, that the 4th
and 5th defendants/respondents were directors of the 1st
defendant and they were wrongly sued because at all material times, the 4th
and 5th respondents had acted in their capacity as directors of the
company; they could not be held liable for any wrongs of the 1st
respondent.
The second objection was that the
applicant(s) were only licensees in respect of the property in dispute, which
was held by the 1st respondent as a registered proprietor of a lease
from Kilembe Mines Ltd. It was submitted that the applicants being equitable
licensees with no registerable interest in the land could not bring an action
for a permanent injunction against the 1st respondent. Mr. Bagayi contended that a licence is a mere
personal or revocable privilege to perform an act on the land of another. It does not operate to confer or vest in the
holder any title, interest or estate in the property; it is not even
assignable. Mr. Bagayi was of the view
that the applicants’ rights over the land were only equitable and could be
brought to an end by the respondent’s issuing a notice to terminate the
arrangement. Relying on the case of Chandler
v. Kelly [1972] 2 All E.R. at 942, Mr. Bagayi submitted that a licensee has
no right at law to remain on the land.
He added that if the remedy of a permanent injunction, which was the
main remedy that the respondents sought, was granted it would in effect be
ejecting the 1st respondent, a registered lessee from the land. Mr. Bagayi finally submitted that since such
an order could not be attained, the plaint should be struck out.
The parties’ pleadings and counsels’
submissions raise several issues that that can be summarised as follows:
i)
Whether the respondents properly filed an amended WSD as
alleged in paragraph 5 of the affidavit in reply; if not,
ii)
Whether the respondent’s WSD filed on 10/06/08 contravened
the requirements for pleading contained in Order 6 rules 8 and 10 of the Civil
Procedure Rules; if not,
iii)
Whether the respondent’s defence ought to be struck out; and
if so,
iv)
Whether the applicants would then be entitled to an
interlocutory judgment against the respondents for the orders prayed for, and
subsequent formal proof of damages for breach of contract.
I shall now answer the issues raised
above in the order in which I have stated them.
Regarding
the propriety of filing an amended WSD, the CPR provide for amendments of
pleadings both generally and specifically.
Order 6 rule 19 provides for amendments, generally, while rules 20 and
21 provide for specific amendments of the plaint and the WSD. Order 6 rule 21 provides, and I quote:
“A
defendant who has set up any counterclaim or setoff may without
leave amend the counterclaim or setoff at any time within twenty-eight days of
the filing of the counterclaim or setoff, or, where the plaintiff files a
written statement in reply to the counterclaim or setoff, then within fourteen
days from the filing of the written statement in reply.” (Emphasis supplied)
The
terms of Order 6 rule 21 are very clear.
It is only a defendant who sets up a
counterclaim or setoff that is entitled to amend his/her WSD without leave of
court. This is to be done within 28 days of filing
the counter claim or set off, or within 14 days after the plaintiff’s reply to
the counter claim or set off. It would
appear the CPR limits amendments without leave to plaintiffs only since a
litigant who sets up a counterclaim thereby becomes a plaintiff to the
counterclaim. The litigant who sets up a
setoff is also placed in the same position as a claimant who has to prosecute
his claim. It is also important to note
that such amendment is limited to amendment of the setoff or counterclaim
only.
The terms of respondent’s WSD have
been set out above. There is no
counterclaim or setoff set up by the respondents against the applicants. I have found no other rule other than rule 21
of Order 6, which allows defendants to file an amended WSD apart from rule 19
of Order 6. The latter allows amendments
by any party to the suit after leave of court has been obtained. It is thus apparent that the respondents had no right to file an
amended WSD without leave of court.
The respondent’s amended WSD that was filed on 23/06/08 without leave of
this court was therefore improperly filed.
It cannot be considered as a pleading in the main suit or for purposes
of this application.
Having established that the WSD
filed on the 10/06/08 is the operative defence for purposes of the main suit
and therefore this application, I now turn to the issue whether the said WSD offended the provisions of
Order 6 rules 8 and 10 of the CPR.
In paragraphs 2, 3 and 4 of the
plaint, the applicants described the 2nd plaintiff and the 1st,
2nd and 3rd defendants as limited liability companies
doing business in Uganda. In response
thereto, the defendants merely stated in paragraph 2 that they had noted the
contents of the said paragraphs but no admission was made as to the contents
thereof. In other words, the defendant
in a general manner denied that the said parties were limited liability
companies. However, they did not specify
in what capacity they were operating, if they were not limited labiality
companies as stated in the plaint.
It is wrong to deny plain and
acknowledged facts, or any fact which it is not in one’s client’s interest to
deny. As a rule, each party should admit
whatever facts can be proved against him/her without trouble. Moreover, it looks weak to deny everything in
the opponents pleading. It suggests that
one has no substantial defence to it. In
addition, by rashly traversing statements which are obviously true, much
unnecessary expense may be caused [See Lever Brothers v. Associated
Newspapers [1907] K.B. 628.]
In paragraph 6 (a) through (g) the
plaintiffs stated the facts from which the cause of action against the
defendants arose. The plaintiff’s claim
was that there is a licence that was granted to the 2nd applicant by
the 1st respondent, which was evident from Annexure A to the
plaint. They also claimed to have
subsequently reached oral agreements with the 1st respondent for the
licence to run till expiry of the contract with Kilembe Mines Ltd. In consideration of the oral agreements the
applicants claimed in paragraphs 6 (b), (c) and (d) that they paid certain
monies to C. Mukiibi-Sentamu & Co., Advocates on behalf of the 1st
respondent as legal fees, to Kilembe Mines Ltd as rent in respect of the lease
to the disputed property, and lent the 1st respondent up to US$
150,000. The first two payments were
evidenced by receipts annexed to the plaint that had been given to the
applicants in acknowledgment by Mukiibi-Sentamu & Co. Advocates and Kilembe
Mines Ltd. The respondents’ made no specific response to these allegations in
the WSD. Their response in paragraph 4
was a general denial of the whole of paragraph 6, and a threat that the
applicants would be put to strict proof of their allegations.
Paragraph 6 (e) was that the 1st
respondent purchased a mobile crane and plant from the 1st
respondent for shs 8,000,000/=. The
respondent attached an invoice to the plaint to show that there was such a
transaction. Applicants also stated in
paragraph 6 (f) that they had been in occupation of the disputed land for 6
years, and in paragraph 6 (g) that the respondents were in breach of the agreements
between the parties that had been referred to in paragraphs 6 (a), (b) and
(c). The general response to this was
again paragraph 4 wherein the respondents denied all the contents of paragraph
6 and stated that the applicants would be put to strict proof thereof.
The respondents went on to plead in
paragraph 5 that paragraphs 7, 8, 9 and 10 of the plaint were completely false
allegations and claims that could not be sustainable in law. They did not state the law that the
applicant’s claim offended so as not to be sustainable. Respondents also pleaded generally in
paragraph 6 of the WSD that in reply to all the applicants’ allegations in the
plaint they would show that the plaintiffs had no registerable interest in the
land in issue. Clearly this was not an
intelligible answer to all the claims in the plaint, for example it could never
be an answer to the claims made in paragraphs 6 (c) and (d) which related to
monies paid by the applicants on behalf of the 1st respondent.
The respondents further pleaded in
paragraph 7 that the suit was a frivolous and vexatious one that was intended
to evict one of the respondents from its land.
The respondents did not specify which one of the respondents this answer
referred to. This particular paragraph remained ambiguous because the
applicants’ complaint in this regard was against the 1st and 3rd
respondents.
In paragraphs 8 of the WSD, the
respondents pleaded that they would show that the suit was filed in bad faith
because there was a pending suit previously filed by the applicants with the
same issues. They contended that counsel
for the applicants would be faulted for unprofessional conduct. Even in this case, the respondents did not
state which suit they referred to and the court in which it had been
filed. Neither did they specify which conduct
of counsel for the applicants was unprofessional. As it turned out, the suit that was pending
in the Magistrates Court has completely different issues; it was an action
under the Access to Roads Act, not in issue in this suit.
In paragraph 9, the respondents
pleaded that they would show that a mere licensee had no right at law to evict
the land owner or obtain the remedies sought by the applicants in the
suit. They again did not state which law
they referred to. Neither did they
indicate the specific remedies that they intended to challenge. It is clear from the plaint that the
applicants sought a permanent injunction and damages. The respondents ought to have specified which
remedies they challenged in paragraph 9.
The function of pleadings is to ascertain with precision the matters
on which the parties differ and the points on which they agree; and thus to
arrive at certain clear issues on which both parties desire a judicial
decision. In order to attain this
object, it is necessary that pleadings interchanged between parties should be
conducted according to certain fixed rules.
The main purpose of those rules is to compel each party to state clearly
and intelligibly the material facts on which he/she relies, omitting everything
immaterial and then to insist that his/her opponent frankly admit or explicitly
deny every material matter alleged against him.
By this method they
must speedily arrive at an issue (Odgers, supra at page 88). Orders 6, 7 and 8 of our Civil Procedure
Rules specifically aim at this.
Order
6 rule 8 provides:
“It
shall not be sufficient for a defendant in his or her written statement to deny
generally the grounds alleged by the statement of claim, or for the plaintiff
in his or her written statement in reply to deny generally the grounds alleged
in a defence by way of counterclaim, but each party must deal specifically with
each allegation of fact of which he or she does not admit the truth, except
damages.”
As
indicated above, it is clear that the respondents’ WSD in general, but more
particularly paragraphs 4 and 6 thereof offended the rule in Order 6 rule
8. It also offended the provisions of
Order 6 rule 10 in paragraph 5 where it was stated that all the claims in
paragraphs 8 and 10 where completely false allegations that could not be
sustained in law. That statement was an evasive denial.
According
to Odgers Principles of Pleading and Practice, 22 Edition at page 136,
“It
is not sufficient for a defendant in his defence to deny generally the
allegations in the statement of claim, or for the plaintiff in his reply to
deny generally the allegations in a counterclaim. Each party must traverse specifically each
allegation of fact, which he does not intend to admit. The party pleading must make it clear how
much of his opponent’s case he disputes.”
Clearly
the respondents departed from this rule of practice. Order 6 rule 30 provides that the court may,
upon application, order any pleading to be struck out on the ground that it
discloses no reasonable cause of action or answer.
This court
considered this rule in the case of Nile Bank Ltd. v. Thomas Kato
[1997-2001] EA, at page 325, which was cited by counsel for the
applicants. It was there held, following
the decision in Obidegwu F. v. D. B. Semakadde, High Court Civil Suit No 59
of 1992 (unreported) that the rule in Order 6 rule 8 is mandatory. Where the party pleading fails to follow it,
the pleading is struck out under Order 6 rule 30.
In the instant case, the applicants
pleaded a contract for a licence between them and the 1st
respondent. A copy of the letter
confirming the contract was annexed to the plaint as Annex “A.” The defendant chose not to address it but to
deny it in general terms in paragraph 4 of their WSD. The applicants also pleaded that there were
monies had and received by the 1st respondent or by others on their
behalf as a result of the licence, in paragraphs 6 (c) and (d) of the
plaint. The respondents again chose to
deny them generally without much ado. If
the respondents did not admit these claims they ought to have addressed them
specifically, not as they did in their paragraphs 4 and 6 of the WSD.
I find that paragraphs 7, 8 and 9 of
the WSD do not cure this defect in the WSD.
In particular paragraphs 6 and 9 of the WSD could never be an
intelligible response to a claim for moneys that the applicants claimed to have
been paid on behalf of the 1st respondent, or lent to them. Consequently, I find that the defence did not
raise a reasonable answer to the applicant’s claim. It is accordingly struck out.
As to whether the applicants are
entitled to an interlocutory judgment against the respondents and subsequently
to formal proof of damages claimed, I now turn to the respondent’s objection to
the plaint, and specifically to the applicant’s claim for a permanent
injunction against the 1st respondent. I have not dealt with the first objection
raised by the respondents regarding the parties to the suit because I find that
the second objection substantially deals with the defect in the applicants’
pleadings. It was submitted for the
respondents that the applicants had not right to bring a suit against the 1st
respondent for a permanent injunction because it would amount to an action to
evict the 1st respondent.
The 1st respondent has a
registered interest in the land under dispute holding a sub-lease from Kilembe
Mines Ltd. The respondents did not
specifically plead the fact in the WSD.
The respondents glossed over this fact by referring to the 1st
respondent as “a land owner” in paragraph 9 of the WSD, and repeatedly stating
that the applicants merely had a licence, a right that was inferior to that of
the 1st respondent. It was
only later specifically pleaded in the affidavit in reply to this application
in paragraph 7.
However, Annexure “C” to the plaint,
a consent judgment between Kilembe Mines Ltd and the 1st respondent
in High Court Civil Suit 248 of 2004 shows that there was outstanding rent on a
sublease registered in LRV 341 F.13 at Masese Jinja. The amount paid in final settlement thereof
was UD$ 30,000. The applicant claimed to
have paid this amount to Kilembe Mines according to a tax receipt from Kilembe
Mines Ltd dated 4/11/05, included in group Annexure “A” to the plaint. It is these facts which lead court to the
conclusion that the 1st respondent was a registered owner under the
Registration of Titles Act, not the respondent’s pleadings.
The law relating to actions in such
cases is s. 176 of the Registration of Titles Act where it is provided:
“No action of ejectment or other
action for the recovery of any land shall lie
or be sustained against the person registered as proprietor under this
Act, except in any of the following cases—
a)
the case of a mortgagee as against a mortgagor in default;
b)
the case of a lessor as against a lessee in default;
c)
the case of a person deprived of any land by fraud as
against the person registered as proprietor of that land through fraud or as
against a person deriving otherwise than as a transferee bona fide for value
from or through a person so registered through fraud;
d)
the case of a person deprived of or claiming any land
included in any certificate of title of other land by misdescription of the
other land or of its boundaries as against the registered proprietor of that
other land not being a transferee of the land bona fide for value;
e)
the case of a registered proprietor claiming under a
certificate of title prior in date of registration under this Act in any case
in which two or more certificates of title may be registered under this Act in
respect of the same land,
and in any case other than as
aforesaid the production of the registered certificate of title or lease shall
be held in every court to be an absolute bar and estoppel to any such action
against the person named in that document as the grantee, owner, proprietor or
lessee of the land described in it, any rule of law or equity to the contrary
notwithstanding.”
The import of s. 176 was discussed
by the Supreme Court of Uganda in The Executrix of the Estate of the Late
Christine Mary Tebajukira & Deborah Namukasa v. Noel Grace Dhalita
Stananzi, Supreme Court Civil Appeal No. 2 of 1988 (Unreported). In that case, the Supreme Court held that
in any action against a registered proprietor other than in the instances named
in s. 184 (now s. 176) of the RTA, the certificate of title is an absolute bar,
any rule of law or equity to the contrary notwithstanding. (See also Francis
Butagira v. Deborah Namukasa, Supreme Court Civil Appeal No, 6 of 1989
(Unreported)).
In that case, the respondent sought
to challenge the physical re-entry against a lease that had been effected by
the appellant for non-payment of rent.
It was found that the certificate of title held by the appellant was an
absolute bar to an action for trespass. The
court found that the respondent had by his action for trespass against his
landlord challenged her title. Court declined to grant the remedy of relief
against forfeiture for (among other reasons) that the very action in which the
respondent purported to sue for trespass was barred by s. 184 (now 176) of the
RTA. In like vain, I find that the applicant’s action against the 1st
respondent for a permanent injunction was in effect an action for ejectment and
thus agree with Mr. Bagayi’s submission in that regard. Entertaining such an action would no doubt
offend the provisions of s. 176 of the RTA.
It would have benefited the respondent’s WSD if s.176 of the RTA had
been pleaded.
Order
6 rule 11 (d) of the CPR provides that where the suit appears from the
statement in the plaint to be barred by any law, the plaint may be rejected.
The applicants’ plaint is barred by s. 176 of the RTA. It is accordingly rejected.
As to whether the applicants would
have been entitled to set down the suit for formal proof of the general damages
claimed in the suit after striking out the respondents’ WSD, it is my
considered opinion that that could not happen.
Proof of damages normally refers to proof of special damages, general
damages being a measure that is often determined judicially, i.e. according to
the discretion of the court depending on the injury that is complained of. In the instant case, although the applicants
referred to certain monies, viz: US$ 150,000 being a debt alleged to be due
from the 1st respondent and US$ 30,000 paid to M/s Kilembe Mines Ltd
as rent for the sub-lease, the applicants did not claim for refund of the
same. Claiming the refund would have
been in the way of special damages. It
is trite law that special damages must be specifically pleaded and then
proved. In the absence of this, I am
unable to agree with counsel for the applicants that the suit should have been
set down for formal proof.
In conclusion, I must comment about
the unfortunate result of these proceedings.
The applicant’s plaint has been rejected and the respondent’s defence
struck out. None of the parties has
gained anything from this action. This
unfortunate result arose from the mistakes made in the pleadings by counsel for
both the applicants and the respondents.
I shall therefore make no orders as to costs.
Irene Mulyagonja Kakooza
JUDGE
30/10/08
Mwesigye Alphone Katiti & 30
Others v National Forestry Authority HCCS No. 270 of 2010 (Comm. Court)
THE REPUBLIC
OF UGANDA
IN
THE HIGH COURT OF UGANDA AT KAMPALA
COMMERCIAL
DIVISION
CIVIL SUIT
NO. 270 OF 2010
1.
MWESIGYE
ALFONSE KATITI
2.
ARINAITWE
ASAPH …………………………………
PLAINTIFFS
3.
KATAREIHA
JOHN
for and on
behalf of 28 others
VERSUS
NATIONAL
FORESTRY AUTHORITY………………………………...…………DEFENDANT
JUDGMENT:
The plaintiffs
brought this suit in 2010 seeking for a declaration that they are entitled to
payments for breach of contract by nonpayment of accrued sums, special damages,
general damages, interest and costs of the suit. The amount claimed and their
particulars were not specified in the plaint. However, in July 2011 the plaint
was amended to give particulars of the claim by indicating the amount each of
the plaintiffs are entitled to all totaling Shs. 168,470,000/=. It was averred
in the amended plaint that the respondent subsequently paid Shs. 145,972,000/=
leaving an outstanding balance of Shs. 22,498,000/= due and owing to nine out
of the original 28 claimants.
It is the plaintiffs’ case that between 2008 and 2009
the plaintiffs and 28 others on behalf of whom this suit was filed entered into
contracts with the defendant to provide services such as clear slashing,
initial clearing, spot hoeing, weeding and climber cutting in Rwoho Central
Reserve and Bugumba Central Forest Reserve which are managed by the defendant.
By June 2009, the plaintiffs had executed the work contracted to them but had
not been paid.
The defendant filed
a written statement of defence (WSD) in which each and every allegation in the
plaint apart from the description of the parties were denied. When the
plaintiff amended the plaint, the defendant filed an amended written statement
of defence where it still denied every allegation in the amended plaint except
the several demands made by the plaintiffs. The defendant also alleged that it
paid the plaintiffs all the monies owing under the contract (which had earlier
been denied) and denied the existence of a balance of Ushs. 22,498,000.
At the scheduling conference only one issue namely;
whether the Plaintiffs are entitled to the remedies prayed for was framed for
determination by this court.
The plaintiffs prayed for the following remedies:
1)
A declaration that the Plaintiffs are entitled to
payments in accordance with their contracts.
2)
An order for payment of Shs. 22,498,000 in full.
3)
Interest on the sum of Shs. 168,470,000 at 25% per
annum from June 2009 till payment in full.
4)
General damages for breach of contract.
5)
Interest on general damages at court rate from date of
judgment till payment in full.
6)
Punitive damages.
7)
Costs of the suit.
It is noteworthy at this juncture, that although the
amended plaint indicated that there were nine plaintiffs whose claims were due
and owing, only three of them were called for cross-examination. The claims for
two others as will be elaborated on later were wholly admitted by the defendant
while those of four appeared to have been abandoned and so they were not called
for cross-examination although they had filed witness statements. In view of
those developments, “the plaintiffs” henceforth would refer to the two
claimants whose claims were wholly admitted and the three who needed to prove
their claims. The defendant called only one witness to prove its case. After
closure of hearing evidence, both counsel agreed to file written submissions
which they did. I have considered the prayers of the plaintiffs in the order in
which they were made and submitted upon.
1)
A
declaration that the Plaintiffs are entitled to payments in accordance with
their contracts.
On this prayer, Mr. Mwesigye Alphonse Katiti, PW1 on cross-examination
testified that he had executed works under two contracts with the defendant
which were supervised by Mr. Yuwa Mike but he was never paid. He stated that
the contract required inspection and a certificate before they were paid but
this was issued by the defendant. His claim was in respect of two contracts but
one was paid leaving the unpaid amount in respect of the 2nd
contract of Shs.2,310,000/= after
tax.
Mr. Bimanyomwe Robert, PW2 testified that he carried
out work under his contract with the defendant which was supervised by
Kasimbazi and another supervisor called Micheal but he was never paid. His
claim is for Shs. 3,290,000/=.
It was the evidence of Serutwe Bernard, PW3 that he
did work under his contract with the defendant which Kasimbazi and Gaigana
supervised and certified but he was neither given the certificate nor paid the
contract sum of Shs. 3,580,00/= that
is still due and owing.
Muluya Tony, the Acting Management Accountant of the
defendant (DW) testified that the defendant entered into contracts with the
plaintiffs for the purpose of maintaining Rwoho and Bugamba Forest Reserves. It
was his testimony that upon execution of works, in accordance with the
contract, it would be certified by the defendant’s Plantation Manager after the
Forest Supervisor had reviewed works done and a certificate issued on the basis
of which the claimants would be paid. It was also his evidence that the
certificate of completion was an internal document of the defendant which had
no provision for the claimants’ signature and they were not given copies of the
same.
Contrary to the defendant’s pleadings that it paid the
plaintiffs all the monies owing under the contract, Mr. Muluya in his testimony
acknowledged that some monies were still due and owing to four out of the nine
claimants. Mr. Byabashaija Edward’s claim of Shs. 2,210,000/= was wholly admitted by the defendant. Shs. 1,410,000/= out of the total claim of Shs. 3,290,000/= by Mr. Bimanyowe
Robert was also admitted leaving a disputed balance of Shs. 1,880,000/=. Shs.
2,256,000/= out of Mr. Serutwe Bernard’s total claim of Shs. 5,875,000/= was also admitted
leaving a disputed claim of Shs.
3,619,000/=. The claim of Mr. Kiwanuka Geoffrey of Shs. 1,645,000/= was wholly admitted.
The total claim admitted at the trial was Shs. 7,521,000/= out of the Shs. 22,498,000/= that was pleaded. Mr.
Muluya in his evidence specifically denied the claims of three of the nine
plaintiffs including Mwesigye Alfonse Katiti. He testified that those claims
were false since they were not supported by any certificate of completion.
Counsel for the plaintiffs in his submission conceded
that the requirement for certificate of completion is provided for under Clause
1.3 of each of the contracts of the plaintiffs. He however, argued that
according to the evidence of DW this was an internal document of the defendant
which it had the duty to issue and failure to do so should not be visited on
the plaintiffs who were not even signatories to it. He submitted that his clients
had proved their case once they testified that they did the work and were
supervised by the officials of the defendant.
He further submitted that lack of certificate of
completion or non performance of the contract was never pleaded by the
defendant. He referred to exhibit P3 being a letter from the defendant to the 1st
plaintiff in his capacity as Chairman of Kikunda Rwoho Contractors Association.
He argued that that letter shows that the plaintiffs had performed their
contract but non-payment was due to the freezing of the defendant’s account.
Counsel for the plaintiffs submitted that if at all
the plaintiffs had not performed the contracts as alleged, the same would have
been terminated in accordance with clauses 5 and 6 of the contracts. He pointed
out that this was not pleaded and no evidence was adduced to prove the
termination. He therefore argued that it followed that if work was contracted
and the contracts were not terminated, then on a balance of probability the
work must have been done which entitles the plaintiffs to payment as per the
contract. He prayed that this court finds so.
Counsel for the defendant submitted that the amount
owing to the plaintiffs arises from uncertified works yet it was a condition of
the contract under Clause 1.3 that the works completed required certification.
He contended that this was the reason for non-payment of the plaintiffs’ claim.
I do agree with the submission of counsel for the
plaintiffs that the defendant did not plead lack of certificate of completion
as the reason for non-payment of the plaintiffs’ claims. I must observe that
the defendant’s WSD was a general denial of the allegations in the plaint
including the contracts that the evidence of DW later confirmed existed. That
pleading seriously offended the provisions of Order 6 rule 8 of the CPR which
requires denials to be specific on each and every allegation made by the
opposite party and Order 6 rule 10 that prohibits evasive denial of allegations
by the opposite party. If at all the plaintiffs had moved court to strike out
that defence, I believe it would not have survived.
Be that as it may, no such application was made and
the defence is on record. Can the defendant now be allowed to improve on it at
this stage by relying on what was never pleaded? I do not think so. This court
is bound by the Court of Appeal decision to the effect that a party will not be
allowed to succeed on a case not so set up by him and be allowed at the trial
to change his case or set up a case inconsistent with what he alleged in his
pleading except by way of amendment of pleadings. Thus a party is precluded
from departing from its pleadings. See Interfreight
Forwarders (U) Ltd vs East African Development Bank Civil Appeal No. 33 of 1992.
The defendant did not amend its pleadings to include non certification of works
as the basis for denying the plaintiffs’ claim. It cannot therefore rely on it
to justify its actions to the plaintiffs’ detriment.
This court is very much alive to the provisions of the
contracts as regards the requirement for a certificate of completion to be
issued before payment is made. In fact samples of the same were even adduced in
evidence. But since this was not pleaded the defendant is precluded from
relying on it as it would be a departure from its pleadings. To my mind this
defence appears to be an afterthought that came up as a scheme to defeat the
plaintiffs’ claim and I will not allow it.
This is more so in view of exhibit P3 where the
defendant appreciated “the patience and effort the plaintiffs took to complete
the work assigned” and explained that what incapacitated it from paying the
plaintiffs in time was the freezing of its accounts in September 2009. There
was no mention of lack of certificate of completion in that letter whose
authenticity was not challenged by the defendant. The defendant wrote that
letter in response to the complaint made by the 1st plaintiff as
Chairman to the RDC Mbarara on non-payment for work done. The letter was copied
to the defendant hence the response.
I also wish to add that as rightly pointed out by
counsel for the plaintiffs, certificate of completion was an internal document
of the defendant which the plaintiffs being semi-illiterate people had no way
of ensuring their issuance. The plaintiffs who testified stated that copies of
the certificate of completion were never given to them. Furthermore, that they
were not even aware of their issuance since they were not required to sign the
same. I must observe that if the requirement for certificate of completion is
to serve its intended purpose of verifying work done, it would only be fair and
just that both parties to the contract are made signatory to it. That
requirement would compel the contractors to demand for the same as soon as work
is completed. The defendant who I believe will still continue to require the
services of contractors to maintain its fleets of forest reserves may wish to
look into this matter so as to avoid a scenario like this one.
As to whether the plaintiffs should be entitled to
payment in the absence of certificates of completion, for the reasons stated
above, I find that the plaintiffs whose claims are proved as discussed below
are entitled.
In arriving at the above conclusion, I have also taken
note of the defendant’s insincerity in dealing with this matter from the time
this suit was filed. There was total denial of all the claims including the
existence of the contracts with the plaintiffs.
Interestingly, as the claims and the contracts were being denied in
court, payments were being quietly made to some of the plaintiffs under those
very contracts leaving only a very small amount in dispute as shall be seen
later. This, in my view, shows lack of trust on the part of the defendant and
creates doubt on its ability to honestly handle certification of work. For that
reason, even if lack of certificate of completion was pleaded, I would have
still given the plaintiffs the benefit of the doubt and found that work was
completed but the certificates were not issued.
2)
An order for
payment of Shs. 22,498,000/= in full.
The plaintiffs’ total claim for
special damages in the amended plaint was a sum of Shs. 22,498,000/=. However, counsel for the plaintiffs in his
submission conceded that only Shs. 12,
985,000/= had been proved in accordance with the principle that special
damages must be specifically pleaded and strictly proved. See Mustapha Ramathan & Osman Kassim
Ramathan v Century Bottling Co. Ltd, HCCS (Commercial Division) No. 431 of
2006; Eladam Enterprises Ltd v S.G.S (U) Ltd & others Civil Appeal No. 20
of 2002 [2004] UGCA 1.
I must point out that if you deduct a total of Shs. 7,521,000/= which was admitted
from what is alleged to have been proved, the contested amount would ordinarily
be Shs.5,464,000/=. But this is not the case because it
was submitted for the plaintiffs particularly Mr. Serutwe Bernard that the
amount of Shs.2,256,000/= admitted
by the defendant is in respect of contracts that were entered into after this
suit was filed. It does not relate to this claim. Following that submission
which was made in reference to the documentary evidence on record, the
contested amount would be Shs.
7,720,000/= whose breakdown I will consider per plaintiff as follows:
(a) Claim
by Mwesigye Alfonse Katiti – PW1
In the amended plaint PW1 claims for a sum of Shs. 2,310,000/=. It was his evidence
that as at the time of filing this suit he had not been paid a sum of Shs. 6,100,000/= arising from two
contracts he entered into with the defendant in March 2009 and February 2009.
Exhibit P1 (i) is the first contract dated 30th March 2009 for the
amount of Shs. 2,600,000/= while
Exhibit P1 (ii) dated 15th February 2009 is for the sum of Shs. 3,500,000/=.
However, PW1 further testified that upon filing the
suit, the defendant paid him a sum of Shs.
3,290,000/= leaving a balance of Shs.
2,600,000/=. It was his evidence that he executed all the works contracted
to him and that the same was verified by the defendant’s officers. He also
testified that previous payments for the other contracts he had with the
defendant had been made without certificates of completion. Counsel for the
plaintiff argued that if PW1 had not worked, his contract would have been
terminated. He submitted that since the contract was not terminated Mr.
Mwesigye had on a balance of probability proved that he was entitled to the net
balance of Shs. 2,310,000/=.
Counsel for the defendant submitted that PW1 told
court lies during cross examination when he testified that he last executed
works for the defendant in 2008 and yet there were contracts executed between
PW1 and the defendant during March and February 2009. Counsel prayed that PW1’s evidence be
considered false.
I find that the inconsistence in PW1’s evidence is
minor because during re-examination he clarified that he did the work for which
he was contracted to do in 2009 as per exhibits P1 (i) and P1 (ii). I have
carefully looked at exhibit P1 (i) under which this claim is made and I find
that there was a provision under clause 6.6 for termination of the contract for
total non-performance on the part of the contractor. Non- performance was one
of the conditions for fundamental breach which would terminate the contract
immediately.
If at all PW1 had not performed the contract the
defendant would have notified him that the contract had terminated pursuant to
clause 6.6 of the contract. There was no such notification. The only reason
given for delay of payment as per exhibit P3 was freezing of the defendant’s
account. In the circumstances, this court is convinced that PW1 has proved on a
balance of probability that he performed work as per the contract and he was
never paid the contractual sum of Shs.
2,600,000/= which comes to Shs.
2,310,000/= after tax. I find that
this sum is due and owing to PW1 and the defendant is accordingly ordered to
pay.
(b) Claim by Bimanyomwe Robert – PW2
According to the amended plaint PW2’s claim is Shs. 3,290,000/=. He testified that he
performed works for the defendant for the above contract sum. DW testified at
the hearing that only Shs. 1,410,000/=
out of the entire claim was due and owing to PW2. He referred to exhibit D5 to
show that this amount had been sent to PW2’s account but bounced on 24th
January 2011 due to irregularity in the account details.
I wish to point out that the contract sum under
exhibit P1 (xxvii) was Shs. 800,000/=
while the contract sum under exhibit P1 (xxviii) was Shs. 1,500,000/=. The total sum under the two contracts would
therefore be Shs. 2,300,000/= and
not Shs. 3,290,000/= as claimed.
However, in seeking to prove the claim counsel for the
plaintiff relied on exhibit D5 and submitted that on the second page of that
exhibit in line 8, on 24th January 2011 under reference 5482098 a
sum of Shs. 1,410,000/= appears
against PW2’s name. In addition to that sum, counsel submitted that in line 35
of exhibit D5 on 30th June 2011 under reference 713296 BWO3 a sum of
Shs. 1,880,000/= appears against
PW2’s name. In arriving at the sum of Shs.
3,290,000/= the two sums were added up.
The defendant already acknowledged the sum of Shs. 1,410,000/= as due to PW2 and I
find that he is entitled to the same. I
am not at all convinced that the entry on 30th June 2011 was in
respect of PW2’s claim. That entry was not indicated in the usual way as other
entries. PW2’s name is even outside that column implying that it could have appeared
there by mistake. This court cannot use it as a basis for his claim especially
given that the figure there does not tally with the contract sum in exhibit P1
(xxvii). I therefore deny part of that claim and instead find that in addition
to the sum of Shs. 1,410,000/= that
is admitted, the sum Shs. 800,000/=
is due and owing to PW2 under exhibit P1
(xxvii) and I order that a total sum of Shs.
2,210,000/= inclusive of what was admitted be paid to him.
c)
Claim by
Serutwe Bernard – PW3
In the amended plaint PW3 claimed Shs. 5,875,000/=. It was his evidence that he performed the works
but the defendant did not pay him the sum of Shs. 4,940,000/= arising out of the contracts entered into between
the two parties. The contract sum under contract number MB/04/09/40, exhibit P1
(xxiii) is Shs. 990,000/=. Under
contract number MB/04/09/22, (exhibit P1 (xxiv)) the contract sum is Shs. 700,000/=. Under contract number
MB/04/09/12, (exhibit P1 (xxv)) the contract sum is Shs. 1,750,000/= while the contract sum under contract number
MB/04/09/12, (exhibit P1 (xxvi)) is Shs.
1,500,000/=. This comes to a total sum of Shs. 4,940,000/=. It seems that PW3 abandoned the rest of his claim
as stated in the amended plaint. He testified that after filing the suit he was
subsequently paid Shs. 1,410,000/=
leaving a balance of Shs. 3,530,000/=.
He also testified that he executed the work for which he was contracted and the
same was certified by Mr. Kasimbazi and Mr. Gaigana although he got no copy of
the certificate of completion of the work.
It was the evidence of DW that the defendant
acknowledged the sum of Ushs. 2,256,000/= as due to PW3. The sum of Ushs
2,256,000 subtracted from Ushs 3,530,000/= leaves a balance of Ushs. 1,274,000.
DW1 also testified that exhibits D6 and D8 were duly approved payment vouchers.
I have looked at exhibits D6 and D8 and as submitted by counsel for the
plaintiffs, I find that they relate to different contracts, namely MB/10/010/18
and MB/10/010/06. Those are not the contracts in issue and for that matter what
is admitted does not extinguish the defendant’s liability in this case.
In the premises, I find that PW3 has proved on a
balance of probability that he did work for which he was partly paid leaving an
amount of Shs. 3,530,000/= due and
owing to him. I accordingly order the defendant to pay that amount to him.
(d) Claim by Byabashaija Edward-P4
In the amended plaint, it was stated that the special
damages due to Byabashaija Edward was a sum of Shs. 2,400,000/=. Since this amount is admitted by the defendant, I
order that the defendant pays it to the claimant less tax.
(e) Kiwanuka Geoffrey-P5
According to the amended plaint Kiwanuka Geoffrey’s
claim is Shs. 1,645,000/=. Since
this amount is admitted by the defendant, I order that the defendant pays it to
the claimant.
The above evaluation of evidence shows that while Shs. 22,498,000/= was pleaded only Shs. 11,905,000/= was proved to the
satisfaction of this court including the amount that was admitted.
3) Interest on the sum of Ushs
168,470,000 at 25% per annum from June 2009 till payment in full.
The amended plaint filed in this case was for a claim
of Shs. 22,498,000/=. The claim for
interest is based on a figure of Shs.
168,470,000/= which is alleged to have been due and owing as at the time
this suit was filed. I however, do not see any mention of that figure in the
original plaint that was amended. In the premises, it is my considered opinion
that that amount which was never pleaded cannot be the basis for an award of
interest. While it is true that that amount is mentioned in the amended plaint
and the bulk of it said to have been paid by the defendant, no documents
showing dates of payments were tendered in evidence. It therefore remains a
mere allegation that that was the amount due and owing as at the time this suit
was filed. For that reason I decline to consider the issue of interest based on
that figure. I will instead award interest on the amount that was pleaded and
proved.
Section 26(2) of the Civil Procedure Act Cap. 71
empowers this court to award interest for any period prior to the institution
of the suit. Award of interest is discretionary. The basis of an award of
interest is that the defendant has kept the plaintiff out of his money and the
defendant has had the use of it himself. So he ought to compensate the
plaintiff accordingly as per Lord Denning in Harbutt’s “Plasticine” Ltd v Wayne Tank and Pump Co. Ltd (1970) 1 QB
447. The Supreme Court has upheld
this principle in the case of Sietco v
Noble Builders (U) Ltd Civil Appeal No. 31 of 1995.
In the instant case, there are a number of contracts
involved. They had different commencement and finishing dates. Although exhibit
P2 indicates that works were completed by June 2009, some contracts that form
the basis of these claims like that of Mr. Serutwe were signed as late as
September 2009. I will therefore look at the individual claims that have been
proved and award interests.
a)
Mr. Mwesigye
Alfonse Katiti
According to clause 9 of the contract for Mr. Mwesigye
that was not paid for work was to be completed by 31st June 2009. I
find that payment was due upon completion of the work. The defendant denied PW1
use of his money from that date. However, giving the defendant a grace period
of two months which could have been used for processing payment, I would award
interest on the Shs. 2,310,000/= due
to him at the rate of 18% per annum from September 2009 until payment in full
and it is accordingly awarded.
b)
Bimanyomwe
Robert – PW2
According to the contract of Mr. Bimanyowe signed on 1st
July 2009, the duration was up to 31st October 2009. The contract
sum was Shs. 800,000/=. However, giving the defendant a grace period of two
months which could have been used for processing payment, I would award
interest of 18% per annum on that amount from January 2010 until payment in
full and it is accordingly awarded.
The second contract of 3rd January 2012 was
ending on 31st March 2010. The amount was Shs. 1,500,000/=. Giving
the defendant the grace period of two months which could have been used for
processing payment, I would award interest at the rate of 18% from June 2010
until payment in full and it is accordingly awarded.
c)
Serutwe
Bernard – PW3
It was not stated under which contracts Mr. Serutwe’s
claims remained unpaid. But going by the date of the last contract and taking
into account the grace period for processing payments, I would ward interest on
the sum of Shs. 3,530,000/= due to him from December 2009 until payment
in full and it is accordingly awarded.
(d) Byabashaija Edward
The particular contract under which this claim is made
was not stated as there are several of them but I note that the last one was to
be completed in June 2009. In the circumstances, I award interest on the sum of
Shs. 2,400,000/= less tax at 18% per annum from September 2009
until payment in full.
(e) Kiwanuka Geoffrey
I was not able to locate Mr. Kiwanuka’s contract that
formed the basis of his claim. However, from his witness statement he did the
work between 2008 and 2009. His claim was admitted. In the circumstances, I
will use the common period of June 2009 as the completion date and award
interest on the Shs. 1,645,000/= due
to him at 18% per annum from August 2009 until payment in full.
(4) General
damages for breach of contract
General damages are as such as the law would presume
to be the natural or probable consequence of the act complained of on account
of the fact that they are its immediate, direct and proximate result. Per Lord
Macnaghten in Stroms v Hutchinson [1905]
A.C 515.
The plaintiffs adduced evidence to show
that they suffered inconvenience arising from the defendant’s failure to pay
them. PW1 testified that upon the
defendant’s failure to pay, he mobilized the rest of the plaintiffs to petition
the Resident District Commissioner to assist them recover the money. It was also his evidence that a letter was
written to the defendants demanding for payment, various meetings were convened
with a view to obtaining their payment without success. Evidence was also
adduced that most of the plaintiffs had borrowed money in order to perform the
contracts with the defendant but the failure to obtain their payment resulted
into some of them selling off their properties to meet their loan obligations.
Others had to flee their homes for fear of being arrested while some were
arrested and imprisoned on account of the debts.
During cross examination DW1 acknowledged
meeting some of the plaintiffs who were following up the issue of bounced
payments with regard to their claims. This corroborates the plaintiff’s version
of the story. I do not agree with the submission of counsel for the defendant
that the plaintiffs were paid. This is because some payments were advanced
after the filing of this suit while other payments due were later on admitted
by the defendant during the hearing of the matter.
I find that the plaintiffs suffered
inconvenience due to the direct actions of the defendant. It is common for
government institutions to enter into contracts and fail to honour their
obligations thereby causing untold suffering to the innocent party. This
practice must be discouraged. I therefore find the sum of Shs. 15,000,000/= adequate to atone for the hardships and
inconveniences the plaintiffs were subjected to and I accordingly award it as
general damages.
(5) Interest
on General damages at court rate from date of judgment till payment in full
The award of Interest on general damages is a matter
of discretion of the court as was observed by Okello J (as he then was) . in
the case of Superior Construction and
Engineering Ltd vs. Notay Engineering Industries (Ltd) High Court Civil Suit No
702 of 1989. In exercise of that discretion, I award the plaintiffs
interest on the general damages at a rate of 8% per annum from the date of
judgment till payment in full.
(6)
Punitive damages
Counsel for the plaintiff conceded that punitive
damages were not particularized in the plaint and consequently abandoned the
remedy. Therefore the prayer for punitive damages is denied.
(7)
Costs of the
suit.
I find the prayer for costs justifiable because costs
must follow the event. Since the
plaintiffs are the successful party, I will award costs of this suit to them.
In the result, judgment is entered for the above five
successful plaintiffs against the defendant in the following terms:-
(a)
It is declared that the plaintiffs whose claims were
outstanding as indicated above are entitled to payments as proved.
(b)
It is ordered that the plaintiffs whose respective
claims have been proved as above be paid by the defendant.
(c)
Interest of 18% p.a is awarded to the respective
plaintiffs as particularized above.
(d)
Shs. 15,000,000 is awarded as general
damages.
(e)
Interest on the general damages is awarded at a rate
of 8% per annum from the date of judgment till payment in full
(f)
Costs are awarded to the said plaintiffs.
I so order.
Dated this 31st day of August 2012
Hellen Obura
JUDGE
Delivered in chambers at 4.00 pm in the presence of
Mr. John Kabandize for the plaintiffs. Parties and counsel for the defendant
were absent.
JUDGE
31/08/2012
Departure from Pleadings
Under order 6 rule 7, it is provided
that:
“No pleading shall, not being a petition or application, except by way
of amendment, raise any new ground of claim or contain any allegation of fact
inconsistent with the previous pleadings of the party pleading that pleading.”
This is intended to prevent surprise at the
trial.
See: Darcy v Jones (1959) EA 121
It also follows that evidence at the trial must be given in relation to
a party’s pleadings.
Various authorities are available where the issue of departure from
pleadings has been dealt with. In Mohan MusisiKiwanuka Vrs. Asha Chand – SCCA
14/2002, it was observed that a party’s departure from his/her pleadings is
a good ground for rejecting the evidence and such a litigant may be taken to be
a liar. Also see A. N. Biteremo Vrs. Damascus MunyandaSituma – CA 15/91. The above decision was also relied on in Sebughingiriza Vrs. Attorney General in
HCCS 251/2012 where Justice Monica Mugenyi held that a party who departs
from his pleadings and gives evidence contrary thereto would be deemed to be
lying.
See: Mukasa v Bakireke [2009] 2 EA
255; Uganda Breweries v Uganda Railways Corporation [2002] 2 EA 634
Amendment of Pleadings
A party may find that his or her
pleadings are not clear and may in such a case move court by way of
amendment. Sometimes, a need for
amendment may arise from the other party adducing a new issue.
The law provides for amendment with
leave and amendment without leave of court.
In Matagala
Vicent v URA HCCMA 25of 2013 (Comm Court) , Justice Hellen Obura observed that:
“Both counsel relied on the affidavits and based their submissions
substantially on the principles governing the amendment of pleadings as has
been stated by courts. The summary of those principles which I agree with are
that;
1.
Amendment sought before the commencement of the hearing of the case
which pleadings the intended amendment relates, should be freely allowed if the
amendment can be made without prejudice to the other party. Application for
amendment should be made at the earliest stage of the proceedings;
2. Where an amendment is not any
different in quality from the cause of action it should be allowed. A court
will therefore not exercise its discretion to allow an amendment which
substitutes a distinctive cause of action for another or to change by means of
the amendment the subject matter of the suit. The court will refuse to exercise
its discretion where the amendment would change the action into one of a
substantially different character;
3. No amendment would be allowed
which would prejudice the rights of the opposite party existing at the date of
the proposed amendment.The amendment should not work injustice to the other
side. An injury which can be compensated by the award of costs is not treated
as an injustice;
4. An amendment would be necessary
within the meaning of Order 6 Rule 19 of
the CPR if it is for the purpose of
determining the real questions in controversy between the parties;
5. Multiplicity of proceedings
should be avoided as far as possible and all amendments which avoid such
multiplicity should be allowed;
6. An application made malafide
should not be granted;
7. No amendment should be allowed
where it is expressly or impliedly prohibited by law (e.g Limitation).
See: Gaso
Transport Services (Bus) Ltd v Martin Adala Obene SCCA NO. 4/1994; Lubowa
Gyaviira & others v Makerere University HCMA NO. 0471/2009.”
Amendment with Leave
Order 6 rule 19 CPR provides that:
“The court may, at any stage of the proceedings, allow either party to
alter or amend his or her pleadings in such manner and on such terms as may be
just, and all such amendments shall be made as may be necessary for the purpose
of determining the real questions in controversy between the parties.”
Amendment without leave
The law allows both the plaintiff and
the defendant to amend his or her pleadings without leave of court.
Order 6 rule 20 provides that:
“A plaintiff may, without leave, amend his or her plaint once at
any time within twenty-one days from the date of issue of the summons to the
defendant or, where a written statement of defence is filed, then within
fourteen days from the filing of the written statement of defence or the last
of such written statements”.
Order 6 rule 21
provides that:
“A defendant who has
set up any counterclaim or setoff may without leave amend the
counterclaim or setoff at any time within twenty-eight days of the filing of
the counterclaim or setoff, or, where the plaintiff files a written statement
in reply to the counterclaim or setoff, then within fourteen days from the
filing of the written statement in reply.”
See:
Gunter v Krall Investments (U)
Ltd (Supra) where it was said that:
“The terms of Order 6 rule
21 are very clear. It is only a
defendant who sets up a counterclaim or setoff that is entitled to amend
his/her WSD without leave of court. This is to be done within 28 days of filing
the counter claim or set off, or within 14 days after the plaintiff’s reply to
the counter claim or set off. It would
appear the CPR limits amendments without leave to plaintiffs only since a
litigant who sets up a counterclaim thereby becomes a plaintiff to the
counterclaim. The litigant who sets up a
setoff is also placed in the same position as a claimant who has to prosecute
his claim. It is also important to note
that such amendment is limited to amendment of the setoff or counterclaim only.
The terms of
respondent’s WSD have been set out above.
There is no counterclaim or setoff set up by the respondents against the
applicants. I have found no other rule
other than rule 21 of Order 6, which allows defendants to file an amended WSD
apart from rule 19 of Order 6. The
latter allows amendments by any party to the suit after leave of court has been
obtained. It is thus apparent that the respondents had no right to
file an amended WSD without leave of court. The respondent’s amended WSD that was filed
on 23/06/08 without leave of this court was therefore improperly filed. It cannot be considered as a pleading in the
main suit or for purposes of this application.”
Apart from the cases specified as
instances in which the parties can amend without leave, in all other cases, the
parties must seek the permission of the court. After the lapse of the time
within which pleadings can be amended, a party’s pleadings will be deemed to be
closed and documents filed thereafter will be of no legal effect or
consequence.
Order
6 Rule 22 provides for disallowance of amendment in the following terms:
“Where
a party has amended his or her pleading under rule 20 or 21 of this Order, the
opposite party may within fifteen days from the date of service upon or
delivery to him or her of the duplicate of the amended document apply to the
court to disallow the amendment or any part of it; and the court may, if
satisfied that the justice of the case requires it, disallow the amendment or
any part of it or allow it subject to such terms as to costs or otherwise as
may be just.”
Order
6 rule 23 provides for an amendment to be filed and served. It states:
“Whenever any pleading is amended, the amended document shall be filed
within the time allowed for amending the pleading; and where the filing occurs
before the date specified in the summons for the appearance of or the entering
of appearance by the defendant, then a duplicate of the amended document shall
be served upon the opposite party in the manner provided for the service of a
summons, but where the amended document is filed after that date, a duplicate
of the amended document shall be delivered to the opposite party by the party
filing.”
Rule
24 of Order 6 provides for reply to amendment. It states that:
“Where any party has amended his or her pleading under rule 20 or 21 of
this Order, the opposite party shall plead to the amended pleading or amend his
or her pleading within the time he or she then has to plead, or within fifteen
days of the service or delivery of the amendment, whichever shall last expire;
and in case the opposite party has pleaded before the service or delivery of
the amendment, and does not plead again or amend within the time above
mentioned, he or she shall be deemed to rely on his or her original pleading in
answer to that amendment.”
Order
6 rule 25deals with failure to amend after order. It provides that:
“If a party who has obtained an order for leave to amend does not amend
accordingly within the time limited for that purpose by the order, or if no
time is limited by the order then within fourteen days from the date of the
order, he or she shall not be permitted to amend after the expiration of such
limited time as aforesaid or the fourteen days, as the case may be, unless the
time is extended by the court.”
Under Order 6 rule 26, every pleading shall be signed by an
advocate or by the party if he or she
sues or defends in person.
Effect of an Amendment
The case of Dhanji Ramji v.
Malde Timber Company (1970) EA 422 is significant for the holding that:
“While the amended pleading is conclusive as
to the issues for determination, the original pleading may be looked at if it
contains matter relevant to the issues (dictum of Newbold, JA in Eastern Radio
Service v. R.J Patel (trading as tots) (1962) EA 818 applied).
Newbold,
JA said this:
“Logic and common sense requires that an
amendment should not automatically be treated as if it, and nothing else had
ever existed”.
Order 6 rule 30 (1) provides for striking out pleading. It states that:
“The court may, upon application, order any pleading to be struck out on
the ground that it discloses no reasonable cause of action or answer and, in
any such case, or in case of the suit or defence being shown by the pleadings
to be frivolous or vexatious, may order the suit to be stayed or dismissed or
judgment to be entered accordingly, as may be just.”
In Blue Shield Insurance Company Ltd
v Oguttu [2009] 2 EA 75, it was held that the power to strike out a
pleading which ends in driving a party from the judgment seat should be used
very sparingly and only in cases where the pleading is shown to be clearly
untenable.
The Plaint
A plaint may be an
ordinary plaint (under Order 7 CPR) or a specially endorsed plaint (under Order
36 CPR). The formalities to be complied with by a plaint are generally provided
for under Order 7. A plaint may be
rejected under order 7 rule 11 of the CPR on the following grounds:
(a) where it
does not disclose a cause of action;
(b) where the
relief claimed is undervalued and the plaintiff, on being required by the court
to correct the valuation within a time to be fixed by the court, fails to do
so;
(c) where the
relief claimed is properly valued but an insufficient fee has been paid, and
the plaintiff, on being required by the court to pay the requisite fee within a
time to be fixed by the court, fails to do so;
(d) where the
suit appears from the statement in the plaint to be barred by any law;
(e) where the
suit is shown by the plaint to be frivolous or vexatious.
Order 7 rule 12 provides that where a plaint
is rejected the judge shall record an order to the effect with the reasons for
the order.
Under rule 13, the rejection of the plaint on any of
the grounds hereinbefore mentioned shall not of its own force preclude
the plaintiff from presenting a fresh plaint in respect of the same cause of
action.
The Written Statement of Defence
This is governed
by Order 8 of the Civil Procedure Rules.
A defendant sets up an answer to the claim through a written statement
of Defence. According to rule 2 of Order 8, the defendant may set up a
counterclaim or setoff. It provides that:
“(1) A defendant in an action may set off, or set
up by way of counterclaim against the claims of the plaintiff, any right or
claim, whether the setoff or counterclaim sounds in damages or not, and the
setoff or counterclaim shall have the same effect as a cross-action, so as to
enable the court to pronounce a final judgment in the same action, both on the
original and on the cross-claim. But the court may on the application of the
plaintiff before trial, if in the opinion of the court the setoff or
counterclaim cannot be conveniently disposed of in the pending action, or ought
not to be allowed, refuse permission to the defendant to avail himself or
herself of it.
(2) Where a defendant includes a counterclaim in
the defence, the defendant shall accompany it with a brief summary of evidence
to be adduced, a list of witnesses, a list of documents and a list of
authorities to be relied on.”
Under Order 8
Rule 7, where any defendant seeks to rely upon any grounds as supporting a
right of counterclaim, he or she shall, in his or her statement of defence,
state specifically that he or she does so by way of counterclaim.
In Omumbejja
Namusisi Naluwembe v Makerere University MISCELLANEOUS APPLICATION NO. 1199 OF 2013, Justice Byabashaija noted that:
“It is a
mandatory requirement under Order 8 r.7 CPR that where a
defendant seeks to rely upon any ground as supporting a right of counterclaim,
he or she must include the counterclaim in his written statement of defence. In
the instant case there was no indication in the pleadings that the defendant
intended to rely upon any ground as supporting a right of counterclaim in her
written statement of defence. Therefore,
the Applicant cannot apply to amend the defence to include a counterclaim
because a defence is not a separate suit but simply a defence to an action.
Given the above
position of the law, it is erroneous for the Applicant to submit that the
counterclaim is not a separate suit. It is further erroneous to maintain that a
defence can be amended to incorporate a counterclaim, and that an application
in that case would be for leave to amend the defence to introduce a
counterclaim. On the contrary, it is
settled law that a counterclaim is a separate action pursuant to provisions of O.8
rr.12 and 13 CPR which stipulate that a counterclaim can be excluded as
being more appropriate to be filed as a separate suit, on application of the
plaintiff or defendant to the counterclaim without even affecting the defence.
See also: British General Insurance Co. Ltd. v. Moshanlul Sulank, CACA No. 30 of
1997; Charles Lwanga v. Centenary Rural Bank, SCCA No.33 of 1999.
Additionally, since a counterclaim is a separate action, an application
seeking leave to amend the defence to introduce a counterclaim would in essence
be seeking leave to amend pleadings to introduce a new cause of action; which
would be legally untenable. See: Nambi
v. Bunyoro General Merchants [1974] HCB 12. Such an application would not be granted because apart from amounting to
exonerating a party from complying with provisions of the law, it would also
involve a complete change in the nature of the action and set up an entirely
different claim from that the a parties came to meet, and would require an
entirely new counterdefence. See: Biiso v. Tibamwenda [1991] HCB 92; Hill & Grant Ltd v. Hodson [1934] Ch. D
53. The net effect is that the Applicant should have sought
leave of court to file a counterclaim out of time, but not to amend the
defence. She did not seek the leave and the application is incompetent, and it
is dismissed with costs.”
Order 8 rule 8
provides that:
“Where a defendant by his or her defence sets up
any counterclaim which raises questions between himself or herself and the
plaintiff together with any other persons, he or she shall add to the title of
his or her defence a further title similar to the title in a plaint, setting
forth the names of all the persons who, if the counterclaim were to be enforced
by cross-action, would be defendants to the cross-action and shall deliver to
the court his or her defence for service on such of them as are parties to the
action together with his or her defence for service on the plaintiff within the
period within which he or she is required to file his or her defence”.
In Nile Breweries Ltd v Bruno Ozunga t/a Nebbi Boss Stores HCCS No. 580 of 2006, Justice
Lameck Mukasa noted as follows:
“In this case
the Written Statement of Defence and counter-claim was drafted in such a way
that paragraph 16 was followed with a prayer for judgment in favour of the
defendant and dismissal of the suit. This was followed by a section headed
“COUNTER-CLAIM”. Parties to the counter-claim were not indicated in a title.
Mr. Okalany, Counsel for the Plaintiff submitted that the requirement under
order 8 rule 8 CPR to add a title to a counter-claim is mandatory. Since the
title was absent Counsel prayed that the counter-claim be struck off. He cited Sekiranda
Musoke Yakobo Vs China Jie Fang (U) Ltd H.C.C. S. No 33 of 1996. In
that case Counsel for the plaintiff applied for the counter-claim to be struck
off for a similar reason that it offended Order 8 rule 8 CPR as it bore no
title. Justice P. K. K. Onega upheld the objection. Also in Nampera Trading
Co Vs Yusufu Ssemanye & Another (1973) ULR 171 it was held that a title
to the counter claim is mandatory. Mr. Okalang submitted that a counter-claim
is an independent suit and must have a title where the parties are described.
Mr. Okecha for the plaintiff argued that the requirement for a title arises
where other persons who are not parties to the suit are being introduced by the
counter-claim. He relied on the phrase “—the plaintiff together with any other
persons –“used in the rule.
Rule 8 must be read in light of the other rules in Order 8 which concern a
counter-claim. Rule 2 provides for a defendant in an action to set up by way of
counter-claim against the claims of the plaintiff any right or claim and the
counter-claim shall have the same effect as a cross-action so as to enable
court pronounce judgement on both the original suit and on the counter-claim.
Then rule 7 requires the defendant when he or she seeks to rely upon any
grounds as supporting a right of counter-claim to state in his/her statement of
defence, specifically that he/she does so by way of counter-claim. Then rule 8
covers a situation where the defendant by counter-claim claims against the
plaintiff together with another person. There is need for such other person to
be clearly named. Thus the specific provisions in rule 8 which requires the
defendant where by his defence sets up any counter-claim which raises questions
between himself and the plaintiff together with any other persons to add to the
title of his defence a further title similar to the title in the plaint. That
title should set forth the names of all the persons, who if the counter-claim
were to be enforced by cross-action, would be defendant to the cross action.
Then rule 9 provides for the summoning of such added party, if he is not yet a
party to the suit and rule 10 for such party to appear as if has been served
with summons to appear in the suit. Rules 11 and 12 provide for what course any
person added as a party to the counter-claim should take. The above provisions
show that the requirement to make a title to the counter claim is mandatory
where the claim is against the plaintiff together with another person as co
respondents to the counter-claim.
The defendant in paragraph 8 of his Written Statement of Defence clearly
indicates in compliance with rule 7, that he will raise a counter-claim to the
plaintiff’s suit for compensation and punitive damages. From the portion headed
“Counter-claim” the defendant sets out his claim against the plaintiff. There
is no other party to the defendant’s claim named. So the defendant’s claim is
against the plaintiff solely and not against the plaintiff together with any
other person. My opinion is that the requirement for a title in the
counter-claim arises where the defendant claims against the plaintiff together
with another person. This is necessary so that it is clear who, in addition to
the plaintiff, the defendant claims against in the counter-claim and to make
such a person a party to the suit. Otherwise, if such person is only named in
the body of the counter-claim he would not be a party to the suit. In the
premises I differ from the decisions in two cases referred to above.
In the event I am wrong, it is my view that the defect is one of such which can
be cured by amendment. To strike out the plaintiff’s counter-claim would in the
circumstances mean the defendant filing another suit against the plaintiff,
periods of limitation observed. To safeguard against multiplicity of suits and
to save Court’s time and since the defendant, had in the event Court finds the
counter-claim defective, sought for an amend I find it safe to order an
amendment of the defendant’s pleadings to include a title to the counter-claim.
Accordingly, the application to struck out the defendants Written Statement of
Defence and counter-claim is rejected. Before I take leave of this matter, I
must point out that I have studied the defendants Written Statement of Defence
and counter –claim and I agree with counsel for the plaintiff that it shows
poor draftsmanship. For example when referring to the
defendant/counter-claimant words like “I” “me” “my” are used which makes it
appear as if it was the defendant personally drafting. However negligence of
counsel should not be visited on an innocent party.”
It is possible under rule 9 to claim against person
not party to the suit. It states that:
“Where any such person as mentioned in rule 8 of
this Order is not a party to the suit, he or she shall be summoned to appear by
being served with a copy of the defence, which shall be served in accordance
with the rules for regulating service of a summons.”
Under rule 3, a
defendant is required to make specific denials. It is thus provided that:
“Every allegation of fact in the plaint, if not
denied specifically or by necessary implication, or stated to be not admitted
in the pleading of the opposite party, shall be taken to be admitted, except as
against a person under disability; but the court may in its discretion require
any facts so admitted to be proved otherwise than by that admission.”
A defendant is however not bound to plead to
damages since they are in all cases deemed to be put in issue (Order 8 rule 4).
A counterclaim
can survive if a suit is dismissed. Rule 13 of Order 8 provides that:
BY Joseph Edmond Kalinaki
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