[2024] UGHC 834

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KABALE**

## **CIVIL SUIT No. 0033 OF 2021**

10 **KAMUNTU MOSES**:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::**PLAINTIFF**

### **VERSUS**

**1. PIERRE MBABAZI**

- **2. KABATEREINE NARCIS** - **3. TURINAWE HENRY WATAGAH** - 15 **4. BINAISA GODFREY**::::::::::::::::::::::::::::::::::::::::::::::::::::::**DEFENDANTS**

#### **BEFORE: HON. JUSTICE SAMUEL EMOKOR**

#### **RULING**

The Plaintiff brings the instant suit against the Defendants jointly and severally

20 for a declaration that the Defendants defamed the Plaintiff, general damages and costs of the suit.

When this matter came up before the Deputy Registrar for directions the Defendants intimated that they had a preliminary objection to raise against the suit. A schedule was provided and parties filed written submissions.

#### 25 **Representation.**

The Plaintiff is represented by Messrs Beitwenda & Co. Advocates while the defendants were represented by Messrs JByamukama & Co. Advocates and Messrs Muhangi Justus & Partners Advocates.

#### 5 **Preliminary objection.**

It is the submission of Counsel for the Defendants that the Plaintiff's claim is for interalia declarations that the Defendants made slanderous statements on the 13/12/2021 before journalists and other media personalities in the Kigezi region and that the same were later aired and published via various media outlets to wit

- 10 Voice of Kigezi, Freedom radio, TV West, Urban TV and other websites allegedly attacking his personality. That in paragraph 4 of the Plaint the Plaintiff set forth the facts consisting his cause of action alluded to the voice/radio recordings but did not attach the same to his Plaint. Furthermore, that the Plaint does not cite which Defendant is responsible for which statement and that the slander was not - 15 set forth verbatim in the Plaint; the slander complained of does not refer to the Plaintiff and there is nothing in the entire Plaint to show that the Plaintiff's reputation was harmed.

Counsel then proceeded to raise the following issues for determination.

- 1) Whether the main suit is incompetent and an abuse of Court process. - 20 2) Whether the Plaint discloses a cause of action against the Defendants. - 3) Remedies available to the parties.

Counsel for the Defendants argued the first two issues jointly contending that HCCS No. 0033 of 2021 is incompetent and an abuse of Court process because it does not disclose a cause of action against the defendants and grossly offends the 25 mandatory provisions of the Civil Procedure Rules.

To buttress his point Counsel relies on the decision in **Prof. Okot Bwanga Moi versus Amitayo Kenny HCCS No. 0064 of 2011** in which the Court reiterated

- 5 the principle in **Auto Garage & Others versus Motokov [1971] EA 514** and the Court further held that the Plaintiff must plead the defamatory words complained of; the fact that they referred to the Plaintiff and that they were published by the Defendant knowing that they were false and the Plaintiffs' reputation was harmed as a result. - 10 Counsel also relied on the decision in **Kapeeka Coffee Works Ltd & Another versus Nonperforming Assets Recovery Trust CACA No. 0053** of **2000** in which the Court held that to determine whether or not a Plaint discloses a cause of action, the Court must look only at the Plaint and its annexures if any and nowhere else. - 15 According to Counsel the Plaint does not establish a cause of action against any of the Defendants nor does it cite the name of the person to whom a specific publication is alleged and that it only makes reference generally to the 4 Defendants without even producing the exact statements verbatim.

Counsel for the Defendants therefore prays that the Plaint is struck out with costs.

20 The Plaintiff's Counsel in reply submit that HCCS No. 0033 of 2021 is competently filed before this Court and the pleadings disclose a cause of action against the Defendants.

Counsel contends that to establish a cause of action the Plaintiff must plead;

- a) The defamatory words complained of and the fact they referred to the 25 Plaintiff. - b) That they were published by the Defendant knowing they were false. - c) That the Plaintiffs' reputation was harmed as a result.

5 It is the submission of Counsel that it is not in dispute that the Defendants made these statements and whether they are defamatory or within the defence of the Defendants is a matter that can only be determined on merit by hearing evidence of both parties.

Counsel relies on the decision in **Departed Asians Property Custodian Board**

- 10 **versus Issa Bukenya SCCA No. 0026 of 2019** in which it was held that if allegations are made in the Plaint so that the facts alleged support the prayers asked for, and when the prayers called for are legally justified then all that is necessary is for the trial Court to hear evidence which proves the facts and hear submissions of law that the remedies are justified. - 15 It is the argument of Counsel that the Plaint before Court meets all these requirements and that the recordings and videos referred to in the Plaint were attached and placed in 2GB silver flashes that were served together with the Plaints to respective defendants.

Counsel for the Plaintiff therefore prays that the preliminary objection is 20 dismissed with costs.

#### **Determination.**

It is trite law that a cause of action is established by the following 3 essential elements:

- **1) That the Plaintiff enjoyed a right.** - 25 **2) That the right has been violated.** - 3) **That the defendant is liable**.

#### 5 **See Auto Garage versus Motokov (Supra)**

In **Attorney General Versus Olouch [1972] EA 392** it was held that the question of whether a Plaint discloses a cause of action is determined upon perusal of the Plaint and attachments thereto with an assumption that the facts pleaded or implied are true.

- 10 I have perused the Plaint and its attachments. The Plaintiff introduces himself as a member of Parliament for Rubanda West Constituency for the term 2021 -2026 and also the executive director of a mining company, Kamuntu Investiments (U) Ltd. It is therefore clear that the Plaintiff has a reputation and a right to protect this reputation. - 15 The Plaintiff in paragraphs 4(c –w) of the Plaint outlines utterances that he alleges injured this reputation in the eyes of right thinking members of society and some of the utterances include allegations that the Plaintiff does not fulfill his promises.

The Plaintiff in the said paragraph makes general and specific allegations of some of the statements and the 1st and 4th (now deceased) Defendants are specifically 20 pointed out.

It would appear therefore that the Plaint does meet the basic requirements laid out in **Auto Garage versus Motokov [Supra]**.

In the circumstance of this case however I would agree with the Defendants that the Plaint could have been drafted better in such a way that the slander made 25 reference to is attributed to specific Defendants who uttered and published the same. This in my view would aid the defendants to make a more targeted response to the claims of the Plaintiff and to avoid a more general response as

- 5 has been the case. The Plaintiff's Counsel also makes reference to the Silver 2GB Flash attached to the Plaint. The same as can be deducted from the Plaint is in one of the local languages and therefore not the language of Court which is English. Good practice would demand that a transcribed copy of same translated into English is attached to the Plaint for ease of reference. - 10 I therefore find some merit in the issues raised by the Defendants.

The above fact not withstanding in the case in **Cotter versus Attorney General for Kenya [1938] 5 EACA 18** the Court held thus:

*"If all the three elements are present then a cause of action is disclosed and any defect or omission can be put right by amendment. The Judge has a discretion to*

- 15 *allow such amendment. However, if any element is missing then no cause of action is established and no amendment will be allowed, the underlying principle being that where a Plaint is a nullity, no amendment can redeem it whereas a mere defect or an irregularity may be curable by amendment where the ends of justice so demand, where a cause of action is otherwise disclosed"* - 20 It is my considered opinion that the Plaintiffs' claim does pass the legal test for a cause of action however there is need for the Plaint to be amended to allow the issues involved to be brought into focus.

5 The preliminary objections therefore partially succeed. An order is hereby issued that the Plaintiff amends his Plaint to conform with the standards highlighted above and the costs of the said amendment shall be borne by the Plaintiff.

It is so ordered.

Before me,

…………………………….. **Samuel Emokor Judge 05/09/2024**