[2024] UGHC 394


# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA HCT-00-CV-CS-0019-2016**

**BAGUMA BATSON alias CHRIS ------------------------------------------- PLAINTIFF**

#### **VERSUS**

- 10 **1. THE EDITOR IN CHIEF OF ENTATSI NEWSPAPER** - **2. THE PEPPER PUBLICATION LIMITED** - **3. AMOSIAS AYEBAZIBWE --------------------------------------------- DEFENDANTS**

**BEFORE:** Hon. Justice Nshimye Allan Paul M.

### **RULING ON A PRELIMINARY OBJECTION**

#### **REPRESENTATION**

The Plaintiff was represented by Advocate Timothy Twikirize from M/s Twikirize & Co Advocates; the 1st and 2nd 20 Defendants were represented by Advocate Abel Kahara from M/s Kahara & Co Advocates, while the 3rd Defendant was represented by Advocate Dauda Balinda from M/s Mugisha, Balinda & Co Advocates.

#### **BACKGROUND**

On 28 25 th March 2023, during the examination in chief of PW1, the plaintiff, counsel for the defendant's prayed that they be allowed to raise a preliminary objection on a point of law. The court issued out schedules for filing submissions on the preliminary objection.

### **SUBMISSIONS**

#### **2 nd Defendant's submissions**

It was argued for the 2nd Defendant that **Order 7 Rule 11(a) of the Civil Procedure Rules SI 71-1** provides that a plaint should be rejected if it does not disclose a cause

5 of action.

Counsel submitted that the Plaintiff's action for defamation arose out of articles published Entasi Newspaper in Runyakore. He contended that Entatsi Newspaper is owned by Entatsi Publication Limited. He then contested the suing of the 2nd

10 Defendant, which he stated is a different legal entity which publishes its stories and articles in the English publishing Red Pepper Newspaper.

He added that Entatsi Publication Limited and Pepper Publication Limited (2nd Defendant) are distinct entities with the former being incorporated on 24th April,

1998, while the latter was incorporated on 13th 15 June, 2001, and that they have separate editorial teams. It was then contended that since the Plaintiff's action is hinged on an article by Entatsi Newspaper as shown in **Annexure 'A' to the plaint**, then the 2nd Defendant has nothing to do with this case. He then prayed that the plaint be struck out with costs for lacking a cause of action against the 2nd 20 defendant.

## **Plaintiff's submissions**

Counsel submitted, that the Plaintiff's claim is based on two articles published in the Entatsi Vol. 16 No. 74 of 14th to 16th October, 2014, and Vol. 16 No. 73 of 17th to 20th 25 October. He stated that in the latter publication, it is clearly indicated that Entatsi Newspaper is published by Pepper Publications Limited (2nd Defendant).

Counsel for the plaintiff further argued that after being sued, the Defendants filed a joint written statement of defence (including the 2nd Defendant) wherein they 30 jointly admitted to publishing the story that the plaintiff is complaining about in this suit. Counsel relied on **TORORO CEMENT CO LTD VS FROKINA INTERNATIONAL SC CIVIL APPEAL NO.2/2001** and **HABBUCH AND SONS LTD VS WILKINSON (1899) QB 86** to submit that the plaint discloses a cause of action against the 2nd Defendant. He then prayed that the preliminary objection be overruled, and the suit proceeds to be heard.

#### **DETERMINATION**

- 5 In principle a plaint that does not disclose a cause of action shall be rejected as is provided in **ORDER 7 RULE 11(a) OF THE CIVIL PROCEDURE RULES SI 71-1.** It is the 2 nd defendant's submission that the plaint does not disclose a cause of action against it. - 10 In principle when considering an objection that the plaint does not disclose a cause of action, the court must look only at the plaint and its annextures as was held by the Court of Appeal in **KAPEKA COFFEE WORKS LTD VS NPART CACA 3 OF 2000.**

The Supreme Court in **TORORO CEMENT CO. LTD VS FROKINA INTERNATIONAL** 15 **LIMITED SC. CIVIL APPEAL NO. 2 OF 2001** defined a cause of action as;

> *"A cause of action means every fact which is material to be proved to enable the plaintiff to succeed or every fact which, if denied, the plaintiff must prove in order to obtain judgment"*

The supreme court in deciding **TORORO CEMENT CO. LTD VS FROKINA INTERNATIONAL LIMITED SC. CIVIL APPEAL NO. 2 OF 2001**, also quoted the locus classicus case of **AUTO GARAGE -VS- MOTOKOV (NO. 3) (1971) EA. 514**, that was decided by the Court of Appeal for East Africa laying down the elements that must 25 exist to disclose a cause of action. The elements are:

> (i) *the plaint must show that the plaintiff enjoyed a right; (ii) that right has been violated; and (iii) that the defendant is liable*.

I have considered the submissions of the parties. I have also studied the plaint and I find that one of its annextures marked annexture BCB "B" is the Entatsi newspaper of 17 – 20, 2014. A scrutiny of the Entatsi newspaper of 17 – 20, 2014 shows that it is stateci at the boitom of its last page the words "Entatsti is printed by Pepper ^Pu bl i cati o n s Li m ite d."

Publishing a defamatory article can lead to liability as was in the case of OBOTH Vs THE NEW VISION PRINTING & PUBLISHING COOPERATION SCCA NO. 12 OF 1990. it is thus my considered opinion that during the trial, the parties will adduce evidence that will determine whether the publications that the plaintiff is complaining about are defamatory , the analysis of the evidence to be adduced will also lead to the assessment as to whether printing amounts to publication or not.

. LU

L5

What is not in doubt when one looks at the plaint and lts annextures is the fact that the 2nd defendant's name appears on the tntatsi newspaper o! i7-2A,2014 as ^a key party in putting out the paper as shown in annexture BCB B to the plaint. The extent of iire 2nd defendant's particiSratiori, if airy wiii tre deteririineci afrei' receivirrg and evaluating the evidence.

ln conciusion based on the above, the preliminary objection is overruled. The plaintiffs should extract hearing notices so that hearing of the main suit resumes.

NSHIMYE AttAN PAUL M. JUDGE 31-05-2024

za