[2022] UGHCCD 335

### ⁵ THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA

## (clvlL DlvlsloN)

## crvrL sulT No. 409 0F 2019

BRIGADE DISTILLERS LTD PLAINTIFF

#### VERSUS

vtstoN GRoUP oF coMPANlEs (BUKEDDE Tv) DEFENDANT

# BEFORE: HON. JUSTICE ESTA NAMBAYO RULING

- The Plaintiff, Brigade Distillers Ltd, filed this suit against the defendant on grounds of defamation. The plaintiff seeks for a permanent injunction restraining the defendant from further broad casts of the defamatory statement, a public apology, general and exemplary damages, interest and costs of the ,tuit against the defendant. 15 - 20 The grounds of the Plaintiff's claim are that on the 3'd of July, 2C19 in its bulletin aired on Bukedde TV (Agataliko Mutuntu), the Defendant alleged that the Plaintiff company failed to pay its workers' wages. The same bulletin tt'as aired on the Defendant's social media and YouTube channels resulting in the t']laintiff's sales to drastically drop as its consumers turned to other liquor brands, hence this suit.

# 25 Representation

Learned Counsel Kiiza Hakim appeared for the Plaintiff while Learned Counsel Ntende Kenneth was for the Defendant. When the matter came up for hearing, Counsel for the Defendant raised a preliminary objection on grounrJs that the Plaint

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30 does not disclose a cause of action in defamation. Counsel were directed to file their written subm issions to which they complied to.

## Submissions for the defendant on the preliminary objection.

ln his submission, Counsel for the defendant relied on Order 7 Rule 1 (e) of the Civil Procedure Rules which stipulates that every plaint must contain facts from which the cause of action arose. He relied on the cases of Katende Dirisa -v- David Buryo and 6 others, HCCS No.81 of 2013 and John Kizito -v- The Red Pepper Publication Limited, HCCS No.624 of 2016 and Nkalubo -v- Kibirige fi9731 EA

102, where it was held that;

" ln all writs of libel the actual words complained of must be set cut in the plarnt. This is not a mere technicality because justice can only be done if the Defendants know exactly what words are complained of so that they can prepare a proper defence."

Referring to paragraph 4 of the instant Plaint, Counsel contended that the Plaintiff only gives an account of what they perceived from the News segment rather than what was broadcasted. Counsel explained that the words complained of should have been stated in the plaint in Luganda followed by their English translation. That in this case, paragraph 4 and 5 of the plaint just narrate the implication of the impugned news. Counsel referred to Article 6 of the 1995 Constitution of Uganda and Section 88 of the Civil Procedure Act that provide that English is the official language of Uganda and Court respectively. He also relied on the c,ase of Nkalubo - 45

v- Kibirige fi9731 EA 102, where court held that where the publication is in Luganda, those words should appear in Luganda in the plaint follrtwed by a literal translation in English. That in this case, the plaint neither rel'lects the words complained of in Luganda nor the English translation. 50

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55 60 ln reply, Counsel for the Plaintiff relied on Order 7 Rule 1 (e) of the CPR and the case of Cooke -v- Gull LR &e.p 116 and Read -v- Brown ll QlrD P.31, where ^a cause of action is defined as every fact which is material to be prov'ed to enable the Plaintiff succeed or every fact which if denied, the Plaintiff must prove in order to obtain judgment, and; the case of Tororo Cement Co. Ltd -v- Fronkina lnternational Ltd, CA No.21 of 2001 which lays down the elements to show that there exists a cause of action. Counsel submitted that in the instan'l case, paragraph 4 of the Plaint recaptures the bulletin that was aired on Bukedde fV as "Abba Brigade Distillers Balemeredwa Okusasula Abakozi Abazimba" and argued that the words complained of were clearly stated and followed up with a tape recording.

65 Counsel submitted that in the case of Nkalubo -v- Kibirige (suPra) cited by Counsel for the Defendant, the Plaintiff neither reproduced the actual worcls complained of nor attached a copy of the letter that was alleged to contain the libelous material, just as in the case of Katende Dhisa Bury Gupra), unlike in this case. He prayed that the preliminary objection be over ruled so that the matter is heard on its merits.

#### Analysis:

70 Order 7 Rule 1 (e) of the CPR provides that the plaint shall r:ontain the facts constituting the cause of action and when it arose.

ln cases of defamation, the actual words complained of must be set out in the plaint verbatim, failure to do so leaves the plaint with no cause of action (See Collins -v-Jones [1955J1 QB 564.) ln the instant case, paragraph 4 (c) of the plaint captures

75 the phrase "Abba Brigade Distillers Balemeredwa Okusasula Ab'zkozi Abazimbal' as the words complained of, appearing in Luganda.

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## Afticle 6 of the Constitution provides as follows;

(l) the officia/ language of Uganda shall be English.

(2) -

(3) Subject to this article, any other language may be used as a medium of instruction tn schools or other educational institutions c'r for legislative, administrative or judicial purposes as Parliament may by law ,orescribe.

# Under Section 88 of the Civil Procedure Act, it is provided that;

- 85 l. The language of all courts sha// be Enghsh. - 2. Evidence in all courts shall be recorded in English - 3. Written applications to the courts shall be in English.

90 ln De Souza -v- Zenith Printing Workq Kenya C. C 149 OF 1959, cited with approval in the case of Nkalubo -v- Kibirige Civil Appeal No. 32 of 1973(EA), court noted that;

"the particular words complained of should have appeared tn t'he plaint in that language, followed by a literal translation into English."

ln the instant case, the Plaintiff set out the words complained of in Luganda in paragraph 4 of his plaint without its English translation.

95 Without leave to amend the paragraph so as to include the English translation, I find that the paragraph with the alleged defamatory words is defective and it is hereby struck out. This now leaves the plaint without the alleged defamatory words, disclosing no cause of action.

100 Under Order 7 rule 11 (a) of the CPR, a Plaint that discloses no cau:;e of action must be rejected. ln the circumstances, this plaint is rejected for disclo:;ing no cause of action. The preliminary objection is upheld and the suit is dismissecl with costs.

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I so order.

Dated, signed and delivered by mail at Kampala, this 19^th day of July, 2022

Esta Nambayo 105

**JUDGE**

19^th /7/2022

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