Wakilii

Elamin v Dhabi Group & Ors (HCT-OO-CC-CS 432 of 2012)

High Court · [2013] UGCOMMC 110 · 2013 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for breach of contract dismissed on preliminary objection
Decision
Suit dismissed on preliminary objection for failure to disclose a cause of action

Observed later treatment

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Holding

Held that the plaint disclosed no cause of action against any defendant. The 2nd and 3rd defendants were not privy to the alleged contract, as the undertaking was between the plaintiff and the 1st defendant alone. A person not party to a contract cannot be sued for breach of contract. The 1st defendant acted as agent for a disclosed principal (Warid Telecom International LLC) and thus only the principal could be sued. Further, the 1st defendant was a non-existent legal entity with no address or legal status in Uganda, falling outside the court's territorial jurisdiction. The suit was dismissed under Order 7 rule 11 of the Civil Procedure Rules with costs to the defendants.

Outcome

Suit dismissed on preliminary objection for failure to disclose a cause of action

Facts

The plaintiff, Abdulrahman Elamin, filed suit against three defendants for breach of contract and general damages. The 1st defendant, Dhabi Group, is a United Arab Emirates based conglomerate described as the holding company of the 2nd and 3rd defendants. The 2nd defendant, Warid Telecom Uganda Ltd, is a limited liability company incorporated in Uganda and a subsidiary of the 1st defendant. The 3rd defendant, Warid Uganda Holdings Ltd, is described as a shareholder in the 2nd defendant. According to the plaint, on 22 November 2007 the plaintiff was notified by email from the 1st defendant of an undertaking to allot him a 3% shareholding in Warid Telecom Uganda Ltd valued at USD 1,500,000. The plaintiff alleged that all defendants refused or failed to make good the undertaking. Before the scheduling conference, defendants raised a preliminary objection that the plaint disclosed no cause of action against any defendant.

Issues

  1. Whether the plaint discloses a cause of action against the 2nd and 3rd defendants.
  2. Whether the plaint discloses a cause of action against the 1st defendant.
  3. Whether the 1st defendant, as an agent of a disclosed principal, can be sued for breach of contract.
  4. Whether a non-existent legal entity can be sued and whether defects can be cured by amendment.

Orders

  • Preliminary objection upheld.
  • Suit dismissed and/or rejected under Order 7 rule 11 of the Civil Procedure Rules.
  • Costs awarded to the defendants.

Rules and key headnotes

Privity of Contract — Breach of Contract — Standing to Sue
A person who is not party to a contract cannot, save for certain exceptions, sue or be sued for breach of that contract. Where the alleged undertaking was between the plaintiff and the 1st defendant, the 2nd and 3rd defendants, who were not privy to the contract, cannot be held liable for its breach.
Agency — Disclosed Principal — Liability of Agent
Where an agent makes a contract on behalf of a disclosed principal, the contract is that of the principal, not the agent, and prima facie at common law only the principal can sue or be sued. An agent acting on behalf of a disclosed principal cannot be sued for breach of that contract.
Cause of Action — Disclosure in Pleadings — Elements Required
To disclose a cause of action, a plaint must show that the plaintiff enjoyed a right, that right has been violated, and that the defendant is liable. All three elements must be present. If the third element (defendant's liability) is missing, no cause of action is disclosed.
Preliminary Objections — Determination on Face of Plaint
In deciding whether a plaint discloses a cause of action, the court looks ordinarily only at the plaint and assumes that the facts alleged are true. The question is one of law to be determined on the face of the pleadings, not by reference to evidence to be adduced at trial.
Non-Existent Party — Capacity to Sue — Amendment
A non-existent person cannot be sued. Order 1 rule 10 of the Civil Procedure Rules, which permits substitution of parties, does not apply where a party with no legal existence is sued. No amendment can cure such a defect.

Legislation cited (14)

  • Civil Procedure Rules O.7 r.11
  • Civil Procedure Rules O.7 r.11A
  • Civil Procedure Rules O.6 r.11
  • Civil Procedure Rules O.6 r.12
  • Civil Procedure Rules O.6 r.17
  • Civil Procedure Rules O.6 r.19
  • Civil Procedure Rules O.6 r.27
  • Civil Procedure Rules O.6 r.28
  • Civil Procedure Rules O.1 r.10
  • Civil Procedure Rules O.1 r.12(2)
  • Civil Procedure Rules O.15 r.2
  • Civil Procedure Rules O.15 r.3
  • Civil Procedure Rules O.49
  • Government Proceedings Act

Cases cited (12)

  • Autogarage v Motokov (No.3) (1971) EA 314
  • Attorney General v Olwoch (1972) EA 392
  • Kitgum District Administration v Print Supplied Ltd (Civil Appeal No. 44 of 1988)
  • Wakiso Cargo Transporters Co Ltd v Wakiso District Local Government Council and Attorney General (HCT-00-CC-CS-0070 of 2004)
  • Kayanja v New India Assurance Company Ltd (1968) EA 295
  • HCT-00-CV- Orishaba and 2 others v Global Trust Bank (U) Ltd
  • Tororo Cement Co Ltd v Frokina International Ltd (Supreme Court Civil Appeal No. 2 of 2002)
  • Phenehas Agaba v Swift Freight International Ltd (HCCS No. 1403 of 2004)
  • Lt Kabarebe v Col. Nalweyiso (Court of Appeal Civil Appeal No. 43 of 2003)
  • Phenehas Agaba v Swift Freight International Ltd (HCCS No. 143 of 2000)
  • Jaraj Sheriff & Co v Chatai Fancy Stores (1960) EA 374
  • Benjamin Ssajjabi T/A Namataba v Timber Manufactures Ltd (1978) HCB 202

Full judgment

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

Elamin v Dhabi Group & Ors (HCT-OO-CC-CS 432 of 2012) [2013] UGCommC 110 (4 June 2013)
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.