Wakilii

Sulemanji v Jivanjee (Civil Case No. 222 of 1967)

East African Court of Appeal · [1968] EACA 36 · 1968 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from interlocutory ruling of High Court of Kenya at Mombasa refusing application for further particulars of plaint
Decision
Matter remitted to High Court for plaintiff to provide further particulars and defendant to file defence thereafter

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal allowed the appeal, holding that where a plaint fails to state when a cause of action arose and contains material inconsistencies with earlier correspondence, a defendant is entitled to further and better particulars before filing his defence. The trial judge wrongly exercised his discretion by accepting the plaintiff's assertion that he could not provide further particulars when his own affidavit evidence and earlier correspondence showed he could supply at least approximate dates and additional details. The indefinite statement that money was lent 'upto August 1960' without specifying whether it was one sum or multiple loans over what period left the defendant unable to properly plead limitation or other defences.

Outcome

Matter remitted to High Court for plaintiff to provide further particulars and defendant to file defence thereafter

Facts

The plaintiff/respondent sued the defendant/appellant for shs.32,550/-, claiming it was balance of money lent and advanced up to August 1960. The plaint stated shs.53,000/- was lent up to August 1960, less two payments totalling shs.20,450/-. Prior correspondence showed different figures: a letter of 14 April 1967 claimed shs.35,000/- lent before 1958 and shs.20,000/- from a specific transaction in August 1956 (the Stephen charge), with payments of shs.8,450/- reducing the balance to shs.46,550/-. The plaint differed materially: it reduced the claim by shs.2,000/-, changed 'before 1958' to 'upto August 1960', and added a payment of shs.12,000/- in April 1962. The defendant applied for particulars of when the money was lent. The plaintiff responded by affidavit that he had no particulars of dates or amounts prior to August 1960. The trial judge refused to order particulars, instead directing discovery after defence was filed.

Issues

  1. Whether the appellant/defendant was entitled to an order for further and better particulars of the plaint before filing his defence.
  2. Whether the trial judge properly exercised his discretion in refusing to order further particulars and instead ordering discovery after defence was filed.
  3. Whether the plaint complied with Order VII Rule 1 in stating when the cause of action arose.

Orders

  • Appeal allowed.
  • Order of the High Court refusing further particulars quashed.
  • Plaintiff/respondent ordered to give further particulars showing when the amount of shs.53,000/- was lent and advanced within 14 days.
  • Defendant/appellant to file his defence within 14 days after receipt of further particulars.
  • Costs of the application in the High Court to be costs in the cause.
  • Costs of the appeal awarded to the appellant.

Rules and key headnotes

Further and Better Particulars — When Ordered — Inadequate Statement of Cause of Action
Where a plaint states only that money was lent and advanced 'upto' a certain date without specifying whether it was one sum or multiple loans and over what period, such particulars are inadequate and the defendant is entitled to further and better particulars before filing his defence, particularly where the indefinite pleading prevents the defendant from raising defences such as limitation.
Further and Better Particulars — Plaintiff's Inability to Particularise — Test to Apply
A court should not accept at face value a plaintiff's sworn assertion that he cannot provide further particulars where his own affidavit evidence and earlier correspondence demonstrate that he can in fact supply at least approximate dates and additional details, including whether the claim involves one transaction or multiple transactions and the approximate periods in which they occurred.
Discretion — Exercise of Judicial Discretion — Appellate Intervention
An appellate court will interfere with the exercise of judicial discretion where it is satisfied that a wrong principle has been applied or that manifest injustice may result to either party. It is manifestly unfair to require a defendant to file his defence without knowing approximately when the cause of action arose and without really knowing the claim or claims he has to meet.
Pleadings — Statement of Cause of Action — When Arose — Requirement
Order VII Rule 1 requires a plaint to state the facts constituting the cause of action and when it arose. A statement that a cause of action arose 'upto' a particular date, which is limited on one side to not beyond that date but goes back on the other to infinity, does not comply with this requirement and is inadequate.
Discovery — Ordering Discovery in Absence of Application — Impropriety
Where neither party has applied for an order for discovery, it is improper for a trial judge to order discovery on his own motion, even where one party has volunteered to give discovery.

Legislation cited (5)

  • Civil Procedure (Revised) Rules 1948 Order VI Rule 1
  • Civil Procedure (Revised) Rules 1948 Order VI Rule 3
  • Civil Procedure (Revised) Rules 1948 Order VI Rule 5
  • Civil Procedure (Revised) Rules 1948 Order VII Rule 1
  • Civil Procedure (Revised) Rules 1948 Order X Rule 11

Cases cited (2)

  • Phillips v Phillips (1878) 4 QBD 127
  • Ross v Blakes Motors Ltd [1951] 2 All ER 689

Full judgment

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

Sulemanji v Jivanjee (Civil Case No. 222 of 1967) [1968] EACA 1 (22 November 1968)
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.