[2024] UGHC 797

The Republic of Uganda

In the High Court of Uganda Holden at Soroti

Civil Appeal No. 57 of 2023

(Arising from Civil Suit No. 026 of 2021)

10 Amodoi Michael .................................... <pre>....................................

#### Versus

Oryon Abraham :::::::::::::::::::::::::::::::::::

Before: Hon. Justice Dr Henry Peter Adonyo

#### Judgment

(An appeal against the judgment and orders of the Magistrate Grade One of the Chief Magistrates' Court of Soroti at Soroti delivered on 3^rd May 2023 by His Worship Okiror Edmond Okwii)

1. Introduction:

Amodoi Michael, herein the appellant (then plaintiff) sued Oryon Abraham herein the respondent (then defendant) for defamation, seeking general damages, 20 exemplary damages, punitive damages, an apology, interest and costs.

### 2. The Appellant's claim:

- The appellant pleaded that the respondent, on 10^th November 2021, while at Oil 25 Energy petrol station and Forest View Hotel along Mbale Road in East Cell, Kichinjaji ward, in Soroti City, uttered a defamatory statement falsely accusing the appellant of stealing the defendant's two cows without any basis in front of many people known to the appellant. - The appellant alleged that the defamatory statement lowered his esteem from right-30 thinking members of society.

## 3. The Respondent's reply:

In his written statement of defence, the respondent denied all the allegations in the plaint and by paragraph 4 therein indicated that he would raise a preliminary objection that the plaint did not disclose any cause of action.

The respondent further denied the contents of paragraph 4(I to viii) of the plaint and stated that he never acted maliciously, or without reasonable and probable cause.

In paragraph 7 thereof, the respondent additionally contended that the words complained of to be defamatory, either in their original meaning or mischief, had not formed part of the pleadings for the court to examine and come to an independent conclusion about whether they are defamatory in nature.

He contended that the appellant was named as "Boss" of a one Ekaju Michael, who was arrested for stealing the respondent's two cows. The respondent asserted that the words complained of were not defamatory and prayed that the suit be dismissed.

#### 4. Appellant's evidence:

The appellant presented three witnesses: PW1 Amodoi Michael, PW2 Okwii Robert Icoot and PW3 Okurut Moses.

PW1 Amodoi Michael told the court that it was not true that the thief said he was his boss but that the respondent said that he was trading in stolen cattle business 50 yet he was no longer then even operating the business of a butcher. He told court that when the respondent made the defamatory statement, there were about 5-6 people around, and the language used was Ateso. He agreed that the defamatory words were stated in Ateso language but were not translated into English in his statement. 55

PW2 Okwii Robert Icoot told the court that he retrieved CCTV camera film and indeed saw that two cows had been stolen. He told court that when the cows were stolen, the respondent informed him that his cows had been stolen and that he suspected Amodoi Michael (PW1).

He further informed the lower trial court that he was a right-thinking member of the 60 public and that it was only the respondent who thought that the plaintiff was a bad man.

During re-examination, he intimated that the appellant does a lot of fabrications.

PW3 Okurut Moses told the court that the respondent called the appellant Ekokolan (Ateso for thief) and more than six people were present when the words were 65 uttered. He admitted that the word "Ekokolan" was not included in his witness statement.

He further told the court that the appellant was a very bad man whom he no longer moved with and he admitted that it was the lawyer who went to him to take a statement from him which included the fact of the plaintiff having closed his butchery business.

5. Respondent's evidence:

The respondent/defendant presented three witnesses at trial: Oryon Abraham -DW1, Enangu Stephen - DW2, and Otigo Peter -DW3.

DW1 Oryon Abraham confirmed that one Ekaju was arrested as the thief of 2 heads 75 of cattle with the LC Otigo informing him that the said Ekaju had told him that it was Amodoi Michael who was his boss and who had sent him to steal the cattle.

He further told court that he did not go to the said Ekaju to verify his statement but that he met the plaintiff at Forest View Hotel and asked him only about the stolen cows and he did not call him a thief.

He told court that the stolen two heads of cattle belonged to his sister and that they had been stolen when she was sleeping.

At re-examination, he agreed that at the alleged time he called the appellant a thief in the presence of the appellant's wife and another person. He also stated that he went to the police to report cattle theft.

DW2 Enangu Stephen told the court that he knew Ekaju Michael, who was in prison for stealing cattle belonging to the respondent. He told the court that it was true that Ekaju said the appellant was his boss, but he did not go to the appellant to

verify. He stated that it was true that Ekaju told them that Amodoi, the appellant, had sent him to steal the cattle.

During re-examination, he noted that the appellant is not his friend but a village mate, that he shares nothing in common with him, and that he did not hear the respondent calling the appellant a thief.

DW3 Otigo Peter told the court he was the Secretary LC1 of the area and knew Ekaju well. That Ekaju was indeed arrested for cattle theft and the appellant was his friend since he bought land from his clan.

He told court that the appellant was a well-known businessman who made bricks and that he had never seen Ekaju do any work for the appellant. He did not believe Ekaju when he said Ekaju state that the stolen cows had been given to the appellant was his boss. He said that he did not go to the appellant to confirm that allegation.

At re-examination, he stated that he did not need to believe the statement of a thief. That it was the respondent who said that the appellant was Ekaju's boss. He could not tell whether Ekaju worked for the appellant. He said that he had never seen the appellant confronting the respondent on the issue of his having stolen the latter's COWS.

#### 6. Proceedings in the lower court:

At the trial in the lower court, two issues formed the basis of the trial magistrate's determination of the dispute;

a) Whether the statements made by the defendant were false and defamatory of the plaintiff

b) Whether the plaintiff is entitled to the remedies prayed for?

On issue one, the learned trial magistrate grade one found on page 5 of his decision that the plaint did not disclose a cause of action for failure to plead the actual words alleged to have been used by the respondent. He stated thus;

"In the instant suit and as rightly submitted by counsel for the defendant and 115 not controverted in rejoinder, the plaintiff's particulars of claim did not plead the actual words alleged to have been used by the defendant. Therefore, in absence of the actual words used, there is no cause of action."

He also found that in paragraph 4(a) of the plaint, the appellant just stated that the respondent publicly uttered a defamatory statement falsely accusing the appellant 120 of stealing the respondent's two cows.

He further held that;

"... from the pleadings and evidence, I am unable to find the actual words used by the respondent as alleged by the appellant, and I agree with counsel for the respondent that the plaint discloses no cause of action. Accordingly, the suit is dismissed with costs to the respondent."

The Learned Trial Magistrate, therefore, found that the plaint did not disclose a cause of action, and he dismissed the suit on that ground.

- 7. Grounds of Appeal: - The appellant raised four grounds of appeal, which were as follows: 130 - a) That the learned Trial Magistrate erred in law and fact when he wrongly held that the plaint discloses no cause of action


- b) That the Learned Trial Magistrate erred in law and fact when he held that the plaintiff's claim did not plead the actual words used both in pleadings and evidence thus occasioning a miscarriage of Justice. - c) That the learned Trial Magistrate erred in law and fact when he misdirected himself on the law of defamation in this matter - d) That the learned Trial Magistrate erred in law and fact when he wrongly evaluated the evidence and facts on record and thereby arriving at a wrong conclusion.

The appellant prayed that;

- The appeal be allowed, $\mathcal{L} = \mathcal{L}$ - The judgement and orders of the learned trial magistrate be set aside, $\mathbf{w}^{\prime}$ - Court awards damages to the appellant, - Costs of this instant appeal be awarded to the appellant. 145 - 8. Representation:

The appellant was represented by Omongole & Co. Advocates, whereas the respondent was represented by Ogire & Co. Advocates.

- 9. Duty of the first appellate court: - The duty of the first appellate court's duty is to scrutinise and re-evaluate all the 150 evidence on record to arrive at a fair and just decision.

This duty was well laid down in the case of Kifamunte Henry vs Uganda SCCA No. $10/1997$ where it was pointed out that;

"The first appellate court has a duty to review the evidence of the case and to reconsider the material before the trial judge. The appellate court must then make up its own mind, not disregarding the judgment appealed from but carefully weighing and considering it."

Also in the case Father Nanensio Begumisa and three others vs Eric Tiberaga SCCA 17 of 2000; [2004] KALR 236, the obligation of a first appellate court was pointed as being:

"...to re-hear the case by subjecting the evidence presented to the trial court to a fresh and exhaustive scrutiny and re-appraisal before coming to its own conclusion."

See also: Baguma Fred vs Uganda SCCA No. 7 of 2004.

This court as an appellate court is also empowered by Section 80 of the Civil 165 Procedure Act, Cap 71, to determine a case to its finality.

In resolving this appeal therefore due consideration of all the above legal position regarding the duty and legal obligation of the first appellate court are taken into account.

10. Submissions of counsel for the appellant: 170

> Counsel for the appellant submitted on grounds 1 and 3 and combined grounds 2 and 4 in the appellant's written submissions.

> On grounds 1 and 3, counsel submitted that the plaint disclosed a cause of action. He referred this court to paragraph 4(a)-(d) of the amended plaint. He underlined:

# "...falsely accusing the appellant of stealing the respondent's two cows without any basis."

He then referred this court to the record of proceedings where PW1 stated that;

"The words used was that I was a thief. At the time he made the statement, there were about 5-6 people around".

#### Counsel further referred to PW2's evidence that; 180

"When the cows were stolen, the respondent informed me of the same. The respondent told me that he suspected the appellant to have stolen. I didn't count the people who were around at that time."

And PW3 stated that;

#### 185

"The defendant called the plaintiff Ekokolan -a thief) at the time, there were more than six people."

Counsel relied on the case of Angwee v Odongo & Anor (Civil Suit No. 0065 OF 2011) [2018] UGHCCD 81 (13 December 2018) for the proposition that statements that impute criminal conduct are defamatory in nature, including those that affect the proper exercise of his lawful business, trade, profession, or office.

He further submitted that the offence need not be specified, but that words involving a general charge of criminality would suffice.

Counsel submitted that the plaintiff was, with malice, falsely called *Ekokolan* (a thief) an act which constitutes a criminal offence of theft under sections 253 and 254 of the Penal Code Act Cap 120, and as such, this was defamatory. He prayed that this court finds that the statements uttered by the defendant/respondent were defamatory.

On grounds 2 and 4, Counsel pointed out that there was a cause of action if paragraph 4(a) of the plaint is read together with PW1, PW2 and PW3's crossexaminations.

He prayed that this court finds that the above testimonies clarify the words "stole the cows", translated from Ateso, whose natural meaning is popularly understood as a statement attributed to the respondent against the appellant.

Counsel further submitted that the failure to evaluate the evidence on the record by the trial magistrate made him conclude that he could not identify the actual 205 words used by the respondent against the appellant.

To that end, Counsel prayed that this court would allow the appeal, set aside the judgment and orders of the learned trial magistrate, and award damages to the appellant and the costs of the appeal.

## 11. Submissions of counsel for the respondent: 210

Counsel for the respondent submitted on the grounds in the same order adopted by the appellant.

It was Counsel for the respondent's submission on grounds 1 and 3 that with time, the courts in decided cases have settled the position that a statement complained

of as being defamatory, the actual words must be set forth verbatim in the plaint 215 and the person(s) to whom publication was made have to be mentioned in the

plaint. Counsel referred this court to the case of Rutare S. Leonidas v. Rudakubana Augustine and Kagame Eric William [1978] H. C. B 243 for that proposition.

Counsel submitted that a plaint in a defamation suit which does not allege persons to whom the publication was made nor that the words uttered were false and were 220 published maliciously, which are matters essential in a plaint, does not disclose a cause of action and is bad in law as was held the case of Karaka Sira v. Tiromwe Adonia [1977] H. C. B 26.

Counsel stated that paragraph 4(a)-(g) of the plaint did not indicate verbatim the defamatory words both in Ateso and English, the utterances complained of that are 225 attributed to the respondent defendant and for that reason the plaint disclosed no cause of action against the respondent.

Counsel submitted that all witnesses for the appellant state that the respondent called the appellant a thief/(Ekokolan) and that the learned trial magistrate did not err in law and fact when he held that the plaint did not disclose a cause of action.

On grounds 2 and 4, Counsel for the respondent submitted, while referring to most of the evidence indicated above at trial, that the learned trial magistrate properly evaluated the evidence and arrived at a well-reasoned decision.

## 12. Determination:

Having perused and examined the submissions of the appellant and respondent, 235 together with the record of proceedings at trial and the decision of the learned trial magistrate, in my view, only one issue, if determined by this appellate court, shall have the effect of disposing of all the other grounds of appeal since they are related.

That issue is; Whether the learned trial magistrate erred in law and fact when he found that the plaint did not disclose a cause of action? 240

A cause of action is defined by Halsbury's Laws of England, 5^th edition, under Civil Procedure (Volume 11 (2020), paras 1–496; Volume 12 (2020), paras 497–1206; Volume 12A (2020), paras 1207–1740) as;

Cause of action has been defined as meaning simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another 245 person. The phrase has been held from the earliest time to include every fact which is necessary to be proved to entitle the claimant to succeed, and every fact which the defendant would have a right to dispute.

Cause of action has also been taken to mean that particular act on the part of the defendant which gives the claimant his cause of complaint, or the subject matter or 250 grievance founding the claim, not merely the technical cause of action.

The above definition was quoted and cited in the case of *Cooke v Gill (1873) LR 8 CP* 107 at 116 per Brett J with Lord Esher MR later defining the words as comprising every fact, though not every piece of evidence, which it would be necessary for the plaintiff (now referred to as the 'claimant': see para 121) to prove, if disputed, to support his right to the judgment of the court. (See also: Read v Brown (1888) 22 QBD 128 at 131, CA.)

According to the case of Auto Garage & Others Vs Motokov (No.3) (1971) EA at page 519, it was held that when determining whether or not a plaint discloses a cause of action, proof of the following elements is necessary;

a) That the plaintiff enjoyed a right.

- b) That the right has been violated - c) That the defendant is liable

It is also vital to espouse the law governing pleadings, which under Order 6 Rule 3 of the Civil Procedure Rules SI 71-1, it is stated that: 265

Particulars to be given where necessary.

In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default or undue influence, and in all other cases in which particulars may be necessary, the particulars with dates shall be stated in the pleadings. (Emphasis is mine)

In my view, defamation is such 'other case in which particulars may be necessary'.

According to Black's Law Dictionary, 9^th Edition, on page 479, defamation is the act of harming the reputation of another by making a false statement to a third person.

It is trite that defamation is constituted by slander and libel, and in this case, since the words complained of were not published in permanent form, the alleged 275 defamation complained of is slander.

In Halsbury's Laws of England (5^th Edn) (2019) para 511, slander is defined thus:

Slander for which a claim will lie is a defamatory statement made or conveyed by spoken words, sounds, looks, signs, gestures or in some other non-permanent form, published of and concerning the claimant, to a person other than the claimant, by which the claimant has suffered actual damage, often referred to as special damage, which he must allege and prove, or which is actionable per se at common law, or

where the words are calculated to disparage the claimant in any office, profession, calling, trade or business carried on by him at the time of publication.

In my view, the law holds that in determining whether a plaint discloses a cause of 285 action, the plaint and its annexures are considered, not witness statements or evidence at cross-examination.

Order 7 Rule 1(a)-(i) of the Civil Procedure Rules SI 71-1, sets out what must be contained in a plaint which does not include witness testimonies.

In any case, witness testimonies are intended to prove what has already been 290 pleaded in the plaint.

Similarly, in the case of Dr Ekure John vs Dinah Odaet HCCS No. 41 of 2019, I observed that;

"In order to ably examine the defamatory words complained of and the grievance of the plaintiff, it is paramount that the pleadings be revisited to contextualize the plaintiff's cause of action as against the defendant. The plaint gives the scope of the defamatory words that aggrieved the plaintiff." (Emphasis mine)

It, therefore, holds true that where one claims to be defamed, the said defamatory words must specifically be pleaded (verbatim) in the plaint.

This my view is supported by Halsbury's Laws of England (5^th Edn) 2008 at para 768, where it is stated that;

The words complained of must be set out by the claimant verbatim as in the case of a claim for libel or slander. There is no longer an express requirement that the

meaning attributed to the words be set out. The claimant must plead and prove that 305 the words are false. He must also plead those matters on which he relies to prove actual malice against the defendant, and the matters pleaded should be more consistent with the presence of malice than its absence.

A defendant must specify the allegations of falsity which he admits, denies or is unable to admit or deny. If he denies an allegation, he must set out the basis for doing so, 310 and where appropriate put forward his own version of events. This requirement does not shift the burden of proving falsity from the claimant.

From all the above, it is clear to me that the appellant must set out the words complained of "verbatim" in the plaint.

Besides, in W. Blake Odgers and Walter Blake Odgers, in Bullens and Leake's 315 Pleadings 7^th edition, it is observed that;

The precise words used and the names of the persons to whom they were uttered must be set out in the Statement of Claim.

Correspondingly in the persuasive decision of *Angwee v Odongo & Anor (Civil Suit No.* 0065 of 2011) [2018] UGHCCD 81, Justice Stephen Mubiru pointed out that: 320

> "For a statement complained of as being defamatory, the actual words must be set forth verbatim in the plaint and the persons to whom publication was made have to be mentioned in the plaint (see Rutare S. Leonidas v. Rudakubana *Augustine and Kagame Eric William [1978] H. C. B.243). A plaint in a defamation* suit that does not allege persons to whom publication was made nor that the words uttered were false and were published maliciously, which are matters

essential in a plaint, does not disclose any cause of action and is bad in law (see Karaka Sira v. Tiromwe Adonia [1977] H. C. B. 26).

In the matter before me, the appellant contends that paragraph 4 (a)-(g) of the amended plaint sets out the defamatory words. 330

I reproduced the said paragraph thus;

1) The facts constituting the cause of action arose as follows;

- a. That on the 10^th day of November 2021, the defendant publicly uttered a defamatory statement falsely accusing the plaintiff of stealing the defendants 2 cows without any basis. - b. That the defendant uttered the aforementioned false statements while at the plaintiff's place of business operation (butchery) situated in between oil energy petrol station and forest view hotel along Mbale road in East cell, Kichinjaji ward, Eastern division, Soroti city. - c. That the defamatory statement was uttered in front of many people known to the plaintiff - d. That the statement has injured the reputation of the plaintiff by lowering him in the estimation of right thinking members of society and in particular it has caused the plaintiff to be regarded with feelings of hatred, contempt, ridicule, fear, dislike and disesteem for which the defendant is liable. - e. .......... - f. .............. - $g. \quad \ldots \ldots \ldots$

2) The plaintiff shall aver at trial that the words uttered against him by the defendant in paragraph 4(a) above were highly damaging to his trading reputation and integrity and it is therefore apparent that the statement made was defamatory as it lowered him in the estimation of the right thinking members of the society.

I have perused and examined the above paragraph 4 (a)-(g) of the plaint and do find that there are no words set out verbatim that the plaintiff/appellant alleges the defendant/respondent said to have defamed him.

The only statement in paragraph 4(a) that paragraph 5 asserts is that "...the defendant publicly uttered a defamatory statement falsely accusing the plaintiff of 360 stealing the defendant's two cows without any basis."

Clearly paragraph 4 (a)-(g) of the plaint conveys a report of what was said, not the actual words. It is not enough to set out the report of what was said only but it is imperative that the precise words as stated are reproduced as they material in proving defamation.

Moreover, with the benefit of the evidence on record, which I have perused, the witnesses reveal that the alleged defamatory words were uttered in the Ateso language.

I see no such Ateso words appearing in the plaint together with their English translation. 370

In the case of Dr Ekure John vs Dinah Odaet HCCS No. 41 of 2019, I made reference to the case of *Nkalubo vs Kibirige [1973] EA 102*, where Spry V. P held interalia that:

"...the particular words complained of should have appeared in the plaint in Luganda since the letter was written in the language followed by a literal translation in English."

I am still persuaded, as I was when deciding Dr Ekure John vs Dinah Odaet case (above) that there is nothing in the plaint which pleads the actual words alleged to have been defamatory as they were omitted in the plaint.

That being the case, I inclined to agree with the lower trial magistrate when he held that the plaint did not disclose a cause of action. 380

13. Conclusion:

Since the resolving of the above issue that the plaint did not disclose a cause of action resolves, therefore, this appeal would fail on all grounds as being unmerited.

14. Orders:

- a) The appeal is hereby dismissed. - b) The judgement and orders of the trial magistrate vide Civil Suit No. 26 of 2021 of the Chief Magistrate's Court of Soroti at Soroti, delivered on 3^rd May 2023 by His Worship Edmond Okwii Okiror, are hereby upheld. - c) The costs of this appeal and in the court below are awarded to the respondent.

I so Order.

Hon. Justice Dr Henry Peter Adonyo

Judge

27^th August 2024