Wakilii

Rahima Nagita & 2 Ors. v Richard Bukenya & 3 Ors. (Civil Suit No. 389 of 2010)

High Court · [2011] UGCOMMC 92 · 2011 Preliminary Objection Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Preliminary objection by third defendant that plaint discloses no cause of action
Decision
Preliminary objection dismissed; matter to proceed to trial on the merits

Observed later treatment

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Holding

Held that the preliminary objection was premature. Where facts are in dispute and a point of law depends on a bill of lading that does not name the plaintiffs but they claim to be undisclosed principals, the court should not reject the plaint under Order 7 rule 11 without hearing evidence. Evidence of a prior transaction before the bill of lading was issued may be adduced. The objection on cause of action was stayed to be raised again after evidence is adduced.

Outcome

Preliminary objection dismissed; matter to proceed to trial on the merits

Facts

The plaintiffs engaged the first and second defendants to transport motor vehicles and goods from London to Kampala. The goods arrived on 25 August 2010 in one container. The third defendant, a shipping company, held the goods and refused to release them to the plaintiffs. The bill of lading (Annexure A) showed the second defendant as shipper and the first defendant as consignee, but did not name the plaintiffs. The third defendant filed a preliminary objection that the plaint disclosed no cause of action against it because the plaintiffs were not parties to the bill of lading and had no privity of contract with the third defendant. The plaintiffs argued that they were undisclosed principals who engaged the first and second defendants as their agents, and that the third defendant conceded in its defence that it was holding the consignment belonging to the plaintiffs pending settlement of an invoice.

Issues

  1. Whether the plaint discloses a cause of action against the third defendant under Order 7 rule 11(a) of the Civil Procedure Rules.
  2. Whether the plaintiffs have locus standi to sue the third defendant based on a bill of lading that does not name them as parties.
  3. Whether the preliminary objection should be determined at the interlocutory stage or after evidence is adduced.

Orders

  • The third defendant's preliminary objection on cause of action is stayed.
  • The point of law may be raised again after the plaintiffs have adduced evidence.
  • The application for amendment will be handled on its merits after a proper application has been made.
  • Costs of the objection shall abide the outcome of the main suit.
  • All execution proceedings are stayed until the final outcome of the suit.

Rules and key headnotes

Civil Procedure — Preliminary Objections — Order 7 Rule 11 — Rejection of Plaint — When Appropriate
A plaint should not be rejected under Order 7 rule 11 for disclosing no cause of action where facts are in dispute and the determination of the point of law depends on evidence to be adduced at trial.
Civil Procedure — Preliminary Objections — Premature Objections — Need for Evidence
Unless the facts are so clear as to require no evidence, a preliminary objection should not be upheld until disputed facts are resolved. Where facts may become material depending on evidence adduced, the objection should be stayed and raised after evidence is heard.
Commercial Law — Bills of Lading — Nature as Document of Title — Not Conclusive Evidence of Contract
A bill of lading is not itself the contract between the ship-owner and the shipper, but is excellent evidence of its terms. Evidence of a prior contract made before the bill of lading was signed may be adduced, and the bill of lading does not prevent proof of different or additional terms in the underlying contract.
Contract Law — Privity of Contract — Undisclosed Principals — Agency Relationships
Where plaintiffs claim to be undisclosed principals of agents named in a bill of lading, their entitlement to sue for goods in the possession of the shipper should not be determined at the preliminary objection stage but after evidence of the agency relationship and prior instructions is adduced.

Legislation cited (5)

  • Civil Procedure Rules O.7 r.11(a)
  • Civil Procedure Rules O.7 r.11(d)
  • Civil Procedure Rules O.6 r.19
  • Civil Procedure Rules O.6 r.9
  • Civil Procedure Rules O.15 r.2

Cases cited (15)

  • Auto Garage v Motokov [1971] EA 514
  • Attorney General v Oluoch [1972] EA 392
  • Jeroj Shariff & Co v Chotai Family Stores [1960] EA 374
  • P & O Nedloyd Uganda Ltd v Tesco International Ltd (Court of Appeal Civil Appeal No. 86 of 2004)
  • Heskell v. Continental Express [1950] 1 All E.R. 1033
  • S.S. Ardennes (Owner of Cargo) v. S.S. Ardennes (Owners) [1950] 2 ALL ER 517
  • Sewell v Burdick, per Lord Bramwell (10 App Cas 105)
  • Crooks v Allan
  • Scruttons Ltd vs. Midland Silicones Ltd [1962] 1 ALL ER 1
  • Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd ([1915] AC at p 853)
  • Shiv Construction v Endesha Enterprises Ltd [1999] 1 EA 329
  • NAS Airport Services Ltd v Attorney-General of Kenya [1959] 1 EA 53
  • Western Steamship Company Limited v. Amaral Sutherland & Company Limited (5),[1914] 3 K.B. 55
  • Scott v. The Mercantile Accident Insurance Company (6) (1892), 8 T.L.R. 431
  • S.C. Taverner & Co., Ltd. v. Glamorgan Country Council (7) (1940), 57 T.L.R. 243

Full judgment

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Rahima Nagita & 2 Ors. v Richard Bukenya & 3 Ors. (Civil Suit No. 389 of 2010) [2011] UGCommC 92 (14 August 2011)
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.