[2024] UGHC 759

## **THE REOUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT FORT PORTAL**

### 3 **CIVIL SUIT NO. 006 OF 2018**

# **(CONSOLIDATED WITH CIVIL SUIT NO. 08 OF 2016, CIVIL SUIT NO. 10 OF 2019 AND MISC APPLICATION NO. 115 OF 2019)**

- 6 **1. MURAMUZI AMUZA** - **2. ATEGEKA GABRIEL** - **3. OCAKA TOM** - 9 **4. KABAHWEZA RITA** - **5. RUJUMBA MOSES** - **6. KAMBUGU CAROLYNE** - 12 **7. SSEKEBA DILISA** - **8. MURUNGI EZEKIEL** - **9. KUSEMERERWA JULIUS** - 15 **10. KIWALA ALTON** - **11. AHO AGGREY** - **12. MWESIGWA LAWRENCE** - 18 **13. TUSIBIRA MISAKI** - **14. ASIIMWE PIUS** - **15. NAMUYUMBU MARTIN** - 21 **16. SSERUINAGA TIMON** - **17. BAKASHABA JULIUS** - **18. MAWEJJE ERIC**


#### **19. AHEEBWA JOHN WALTON:::::::::::::::::::::: PLAINTIFFS**

## **VERSUS**

3 **1. UGANDA ALLIED HEALTH EXAMINATIONS BOARD 2. THE SCHOOL OF GOVERNING COUNCIL OF FORT PORTAL SCHOOL OF CLINICAL OFFICERS**

6 **3. NASSALI ROSE :::::::::::::::::::::::::::: DEFENDANTS**

**BEFORE: HON. JUSTICE VINCENT WAGONA**

#### **RULING**

9 This ruling determines the point of law raised by Mr. Businge A Victor, learned counsel for the 3rd defendant that the plaint does not disclose a cause of action against the 3rd 12 defendant.

Mr. Businge submitted that in considering whether a plaint discloses a cause of action or not, reference is made to 15 the plaint and the annexures thereto and nothing more or less. He invited me to the decision of *Kapeka Coffee Works Ltd v NPAK, C. A. C. A. No. 3 of 2000* where the said position 18 was laid down. He contended that in the current plaint apart from mentioning the 3rd defendant's name, the plaintiffs did not plead the acts of the 3rd defendant 21 that violated their rights to be clothed with a cause of action against her. He thus asked court to proceed under


Order 7 rule 11 of the Civil Procedure Rules to strike out the plaint as against the 3rd defendant with costs.

3 In reply, Mr. Wahinda Enock, learned counsel for the plaintiffs contended that a cause of action exists once it is disclosed that the plaintiff enjoyed a right, the 6 right was violated and the defendant is responsible. He cited the case of *Ssemakula v Serunjogi, HCCS No. 187 of 2012* to support his position. That in the current suit, it was pleaded by the plaintiff that the 2nd and 3rd 9 defendant breached the contract when they discontinued the plaintiffs acting on provisional results. That the plaintiffs contended that the 3rd 12 defendant subjected them to disciplinary proceedings before commencement of the exams. That the plaintiff's right to complete their 15 studies as a result of the discontinuation was partly done by the 3rd defendant acting as a principal of the 2nd defendant. He thus insisted that the plaint does disclose a cause of action against the 3 rd 18 defendant.

In rejoinder, Mr. Businge contended that the 3 rd defendant was acting as an agent of the 2nd defendant and not connected to the 1st 21 defendant. That she was thus wrongly dragged in court. He asked court to uphold the point of law.


#### **Issues:**

I find one issue at the heart of the point of law being;

3 *Whether the plaint by the plaintiffs does disclose a cause of action against the 3rd defendant.*

### **Consideration by Court:**

6 It is settled law that for one to satisfy court that he or she has a cause of action, he or she must show that he or she enjoyed a right; the right was violated and that the 9 defendant is the one who violated it and as a result of the violation he suffered loss or damage. *(Tororo Cement Co. Ltd vs Frokina International Ltd SCCA No. 2 of 2001.).* In the 12 determination of whether or not a plaint discloses a cause of action, reference must be made to the plaint and the annexures thereto and nothing else. *(See Kebirungi vs. Road* 15 *Trainers ltd & 2 others [2008] HCB 72.*

In the present suit, the plaintiffs suit sought to challenge 18 their dismissal from school on account of the provisional results which they contend was illegal. They contended that they were students of Fort Portal School of Clinical Officers under the management of the 2 nd 21 defendant and the 3 rd defendant was a principal of the 2nd defendant. That they did exams for the first semester and later started studying

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for the second semester. That later results were released in the course of the second semester where a decision was taken by the 2nd 3 defendant to discontinue students who had failed on the basis of the provisional results which were released. They lodged complaints with the school administration headed by the 3 rd 6 Respondent as the principal who did not resolve their grievances despite several meetings with the plaintiff. That the defendants acted 9 negligently when they did not ensure that the plaintiff's examination cards were not available before the exam.

The plaintiffs thus contend that the manner in which the 12 defendants acted breached the contract they entered into with the school at the time of admission. These acts were denied by the 3rd defendant who contended that their actions 15 were within the law and the required education standards. Therefore, a sober consideration of the plaint and the annexure thereon returns the narrative that the plaintiffs 18 have a cause of action against the defendant which is entrenched in negligence. Whether or not their claim is sustainable by the evidence on record against the 3 rd 21 defendant is a question of proof on the standard required in civil matters. As guided *in DT Dobie & Co (K) Ltd vs Muchina, [1982] KLR, the Court of Appeal* it was stated that 24 a *"reasonable cause of action" to mean "an action with some*

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*chance of success when allegations in the plaint only are considered. A cause of action will not be considered* 3 *reasonable if it does not state such facts as to support the claim prayer. …"*

Whereas court is vested with powers to strike out a suit for 6 none disclosure of a cause of action under Order 7 rule 11 of the Civil Procedure rules, such power must be exercised carefully and sparingly only in deserving cases where the 9 claim plaint cannot be sustained by the plaintiff against the defendant on any legally acceptable hypothesis. I am persuaded to adopt the reasoning in *Crescent* 12 *Construction Limited vs Kenya Commercial Bank Limited [2019] eKLR*, where court observed thus;

**"***However, one thing remains clear, and that is that the* 15 *power to strike out a pleading is a discretionary one. It is to be exercised with the greatest care and caution. This comes from the realization that the rules* 18 *of natural justice require that the court must not drive away any litigant however weak his case may be from the seat of justice. This is a time-honoured legal* 21 *principle. At the same time, it is unfair to drag a person to the seat of justice when the case purportedly brought against him is a non-starter."*


In *Yaya Towers Limited vs. Trade Bank Limited (In Liquidation) Civil Appeal No. 35 of 2000* court expressed 3 itself regarding disclosure of a cause of action thus:

"No suit should be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no 6 reasonable cause of action and is so weak as to be beyond redemption and incurable by amendment."

In this case a consideration of the plaint and the annexures 9 thereto indicates that the plaintiffs were unfairly suspended and their grievances were not handled by the school authorities despite several complaints. Whether or 12 not these facts are true is a question of fact subject to proof through a full trial. I am not convinced that the plaintiff's case against the 3rd defendant appears so 15 hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption and incurable by amendment

18 Further, it is settled law that a point of law should be one whose determination does not require analysis of evidence but should be one which can be seen glaring from the 21 pleadings filed by the parties. In this case, the concern raised by Mr. Businge cannot be determined without considering the evidence of the parties.


I therefore find no merit in this point of law which is accordingly overruled with costs to the plaintiffs in the 3 cause.

I so order.


- 6 **Vincent Wagona High Court Judge FORPORTAL** - 9 **DATE:20/08/2024**