Wakilii

Tororo Cement Co. Ltd v Frokina International Ltd (Civil Appeal 2 of 2001)

Supreme Court · [2002] UGSC 24 · 2002 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second appeal to the Supreme Court from a Court of Appeal decision upholding a High Court ruling, on an interlocutory preliminary objection, that the plaint disclosed a cause of action.
Decision
Appeal dismissed; proceedings remitted to the High Court for trial, with the plaintiff at liberty to seek leave to plead particulars of negligence or to rely on res ipsa loquitur.

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Holding

The Supreme Court dismissed a second appeal challenging a ruling that the plaint disclosed a cause of action. A cause of action is shown where the plaint establishes that the plaintiff enjoyed a right, that the right was violated and that the defendant is liable; the plaint here disclosed a cause of action in negligence. Failure to plead particulars of negligence does not render a plaint defective or warrant rejection under Order 7 rule 11(a); the proper remedy is an order for further and better particulars under Order 6 rule 3, or amendment. A party intending to rely on res ipsa loquitur should plead it. Article 126 of the Constitution does not excuse defective pleadings.

Facts

The respondent sued the appellant in the High Court claiming compensation for damage to its premises. The plaint alleged that on 18 August 1999 the appellant's truck and trailer rammed into the respondent's premises on Plot M587, Nakivubo View, extensively destroying its doors and walls, and that this was caused by the negligence of the appellant's driver, for which the appellant was vicariously liable. The plaint did not set out particulars of negligence. The appellant denied the allegations. When the suit came up for hearing, the appellant raised a preliminary objection under Order 7 rule 11(a) of the Civil Procedure Rules contending that the plaint disclosed no cause of action and should be rejected. The trial judge overruled the objection and the Court of Appeal upheld that decision, leading to this second appeal.

Issues

  1. Whether the plaint disclosed a cause of action.
  2. Whether, once negligence was pleaded, the particulars of the alleged negligence had to be set out in the plaint, and whether their absence rendered the plaint liable to rejection.

Orders

  • Appeal dismissed.
  • Respondent awarded half of the costs of the appeal in the Supreme Court and the Court of Appeal.
  • No order as to costs on the preliminary objection in the High Court.
  • Proceedings remitted to the High Court for the trial of the suit to proceed.

Key headnotes

Civil Procedure — Pleadings — Cause of action — Three-element test (Auto Garage v Motokov)
A plaint discloses a cause of action where it shows that the plaintiff enjoyed a right, that the right has been violated, and that the defendant is liable; where all three elements are present any defect or omission may be cured by amendment.
Civil Procedure — Pleadings — Rejection of plaint — Order 7 rule 11(a)
A plaint may disclose a cause of action even though it omits some fact the rules require it to contain; rejection under Order 7 rule 11(a) is warranted only where no cause of action is disclosed and the plaint, being a nullity, cannot be redeemed by amendment.
Civil Procedure — Preliminary objection — Point of law not pleaded in defence
Whether a plaint discloses a cause of action is a question of law that may be raised by the defendant as a preliminary objection at the commencement of the hearing, even where the point was not pleaded in the written statement of defence.
Tort Law — Negligence — Particulars of negligence — Effect of omission to plead
Failure to set out particulars of negligence in a plaint is not a ground for rejecting the plaint; the proper course is to request further and better particulars and, if they are not supplied, to apply for an order under Order 6 rule 3, or for the plaintiff to amend.
Tort Law — Negligence — Res ipsa loquitur — Requirement to plead
A party who intends to rely on the doctrine of res ipsa loquitur ought to plead it; where the facts pleaded show on their face that the accident was apparently due to negligence, that may be sufficient to disclose a cause of action.
Civil Procedure — Pleadings — Article 126 of the Constitution — Substantive justice
Article 126 of the Constitution does not license sloppy drafting of pleadings; a party whose pleadings are objected to should recognise the defect and seek leave to amend rather than rely on the article to excuse it.

Legislation cited (5)

  • Civil Procedure Rules Order 7 rule 11(a)
  • Civil Procedure Rules Order 6 rule 3
  • Civil Procedure Rules Order 7 rule 1(e)
  • Civil Procedure Rules Order XB rule 1(1)
  • Constitution of Uganda 1995 Article 126

Cases cited (14)

  • Auto Garage v Motokov (No. 3) (1971) EA 514
  • Mukasa v Singh & Others (1969) EA 442
  • H. Katarahwire v P. Lwanga (1988-1990) HCB 86
  • Okello v Uganda National Examinations Council (Supreme Court Civil Appeal No. 12 of 1987)
  • Carter Vs. Attorney-General (1936) 5 EACA, 18
  • Kigundu v Attorney General (Supreme Court Civil Appeal No. 27 of 1993)
  • Bennett v Chemical Construction (GB) Ltd (1971) 1 WLR 1571
  • Embu Public Road Services Ltd v Riimi (1968) EA 22
  • Msuri Muhhiddin v Nazzor Bin Seif El Kassaby (1960) EA 201
  • Cooke -vs- Gull LR.8E.P. page 116
  • Read v Brown (1888) 22 QBD 128
  • Heaven v Pender (1883) 11 QBD 503
  • Nurdin Ali Devji v Meghji Co. (1953) 20 EACA 132
  • Castelino v Rodrigues (1972) EA 223
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.