Wakilii

DFCU Bank Ltd v Ndibaza Naima & Anor (HCT-00-CC-CS 80 of 2012)

High Court · [2012] UGCOMMC 113 · 2012 Preliminary Objection Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Preliminary objection that the plaint discloses no cause of action against the second defendant
Decision
Preliminary objection dismissed; matter to proceed to trial

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that pleading negligence is a question of form and constitutes a separate cause of action in tort, distinct from breach of contract. The distinction between tort and contract affects the award of damages but does not invalidate the plaint. The plaintiff must decide whether to proceed in tort or contract. The preliminary objection was overruled with costs in the cause.

Outcome

Preliminary objection dismissed; matter to proceed to trial

Facts

The plaintiff bank granted credit facilities to the first defendant secured by a collateral management agreement with the second defendant. Goods pledged as security were allegedly diverted. The plaintiff sued both defendants claiming UGX 156,430,241, general damages for breach of contract, and interest. The second defendant raised a preliminary objection that the plaint discloses no cause of action against it because the suit was framed as breach of contract but supported by particulars of negligence in tort. The collateral management agreement required the second defendant to exercise reasonable care and skill in safeguarding the pledged goods.

Issues

  1. Whether the plaint discloses a cause of action against the second defendant.
  2. Whether pleading particulars of negligence in tort is compatible with a cause of action framed as breach of contract.

Orders

  • Preliminary objection overruled.
  • Costs in the cause awarded to the plaintiff.

Rules and key headnotes

Civil Procedure — Preliminary Objections — Pleadings Disclosing No Cause of Action — Distinction Between Tort and Contract
The distinction between tort and contract affects the award of damages but does not invalidate a plaint. Where particulars of negligence are pleaded, this constitutes a cause of action in tort, which is distinct from a cause of action for breach of contract based on contractual terms.
Tort Law — Negligence — Distinction from Breach of Contract — Duty of Care
An obligation to take care exists independently of contract, and an action based on breach of that obligation is founded in tort. Where a breach of duty arises out of a liability independent of personal obligations undertaken by contract, it is tort, even though a contract may exist between the parties.
Contract Law — Breach of Contract — Distinction from Negligence in Tort
Breach of contract occurs where the duty complained of arises out of obligations undertaken by the contract. A cause of action for common law negligence cannot be mixed with a cause of action for breach of contract, as contractual obligations depend on the terms of the contract while common law negligence depends on a duty of care arising from the common law.

Legislation cited (2)

Cases cited (4)

  • Frokina International and Tororo Cement
  • Jackson v Mayfair Window Cleaning Co Ltd [1952] 1 All ER 215
  • Jarvis v Moy, Davies, Smith, Vandervell & Co [1936] 1 KB 405
  • Christine Bitarabeho v Edward Kakonge (Civil Appeal No. 4 of 2000)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

DFCU Bank Ltd v Ndibaza Naima & Anor (HCT-00-CC-CS 80 of 2012) [2012] UGCommC 113 (31 August 2012)
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.