[2000] UGHC 62

## THE REPUBLIC OF UGANDA jN\_TIIE HIGH COURT OF UGANDA AT GULU CIVIL SUIT NO. 14 OF 1998.

## JAMES PHILIPS OKELLO PLAINTIFF. DEFENDANT. *VERSUS* KITGUM DISTRICT LOCAL GOVERNMENT

## BEFORE: THE. HONOURABLE MR. JUSTICE l. O. MALINGA.

## RULING.

When this suit v,as called for hearing Mr. Angeret, learned counsel for the defendant, raised a preliminary objection on a point of lav/ that the plaint does not disclose any or any reasonable'cause of action against the defendant. Mr. Angeret submitted that the plaint sets out two causes of action namely wrongly dismissal and defamation. He prayed for the plaint to be struck off under 0.7 r. 11(a) of CPR

With regard to defamation it was his submission that no cause of action was disclosed as the words relied on pleaded or described. He cited *Skatubo* v. *Ktboruge* [1970] E. A 182 in support.

In reply Mr. Olaa, learned counsel for the plaintiff submitted the mam dutv of the court is to determine tjie main issues in the controversy and procedural irregularities may be ignored. It was his submission that with regard to defamation paragraph ³ ofthe plaint and annexture "D" io the plaint set out the details. He cited *(. 'ustelone* v. *Rodrigues* 11972] 2 ULR 45 in support of his proposition that annextures to plaint are incorporation into the plaint He alleged defamation is the letter of termination titled *"Retirement in Public Interest"* dated March 11, 1998 written by the Chief Administrative Officer Kitgum to the plaintiff with copies to several Officials. That letter accused the plaintiff of abuse of Office, incompetence, financial irregularities which are contrary to financial regulations of 1994, section 0202 and frauds. It was Mr. Olaa's submission that the letter accused the plaintiff of criminal offence or offences.

In all suits for libel, the actual words complained of must be set in the plaint' it is not enough to paraphrase them. A defendant would be put at a disadvantage if he did not know exactly what word are complained of. See *\'kolubo* ⁱ *Koboruge* [1970] E. A 102. In that case libel was alleged. At page 103 Spry. V. P., said.

"I shall first deal with the alleged libel. This was raised in the plaint in the following paragraph.

5. That some time in September, or October, 1967, the defendant wrote a letter to District Commissioner of Mubende, and some of the contents in the said letter are that the plaintiff does not allow Auditors to look at his Account. And a translated copy of the letter is herewith. attached as Exhibits."

This is gravely defective pleading. In all suits for libel the actual words complained of must be set out in the plaint. It was said by LORD COLERIDGE, CJ, in *Hams v. Warre* [1879], 4 C. P. D. 125 at p. 128.

"In libel and slander the very words complained of are the facts on which the action is grounded. It is not the fact of the defendant having used defamatory expressions, but the fact of his having used those defamatory expressions alleged, which is the fact on which the case depends^\*

It was Mr. Olaa's submission that since the defendant's letter of. dismissal accused the plaintiff of abuse of Office, incompetence, financial irregularities and frauds, the plaintiff was accused of criminal offences and so he has a cause of action.

In William Giboni Wanendeya v. David Wambi Kibaale, Mbale HCCS No. 9 of 1997 paragraph of the plaint, which counsel for the plaintiff claimed set out the alleged defamatory words used by the defendant was as follows:-

> "And in part the statement uttered by the defendant were that the plaintiff is a thief, that the plaintiff stole coffee from Coffee Marketing Board in 1978 or thereabouts".

In that case Kania J., held that those could not have been the words allegedly used by the defendant but rather the general effect of such words and therefore the plaintiff had failed to set out the words allegedly used by the defendant and thus this plaint failed to show a cause of action in defamation.

In my humble opinion the position in this case as far as it relates to $\frac{1}{2}$ libel is the name as was in the *Wanedya v. Kihaale* Case above. Indeed the pleadings in this case are even less specific of the alleged defamatory words **30**

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used by the defendant's agents or servants. I therefore find that the plaint does not disclose the cause of action in libel or defamation.

Mr. Angeret submitted on the act for wrongful and unfair dismissal, of action. It was his submission that disclose a cause of action the plaint must $show: -$

1. That the plaintiff enjoyed a right, capable of legal protection;

2. That the right has been violated; and

3. That the defendant is liable.

Mr. Angeret cited Kawesa v. Attorney General [1988-1990] HCB 127.

Mr. Olaa, learned Counsel-for the plaintiff in reply submitted that the plaintiff's claim is that his constitutional right under Article 173 of the constitution was violated. It was his case the criminal charges were labelled at the plaintiff, but he was never prosecuted, instead he was dismissed.

"5. The plaintiff then worked there diligently and assiduously until the District Councillors in their Extra-ordinary council meeting held on the 19^th September, 1996 while discussing the finance of the District, resolved to send the plaintiff on forced leave on the protext that the plaintiff had been found to have mismanaged the District finances. abused his Office, was incompetent and insubordinate as the Annexture " $B$ " hereof

Annexture "B" to the plaint referred to is the letter of the Chief. $\Box$ Administrate Officer dated 13^th November, 1996 interdicting the plaintiff from the exercise of the power and function of his office as the Chief Finance Officer Paragraphs 7 and 8 of the plaint read:

The allegation against the plaintiff were subsequently investigated by the office of the Auditor General and the Kitgum District Local Government Public Account Committee and the said Committee recommended amongst other things, the prosecution of the plaintiff in a court of law for alleged financial mismanagement, abuse of office and insubordination but surprisingly, without prosecutions the plaintiff and finding out the real truth in the allegation against him. the plaintiff's services with the defendant was unjustly and unfairly terminated on the 11^th day of March, 1998. A photocopy of the letter termination the plaintiff-s services as aforesaid is here with attached as Annexture "D"

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8. ^I he plaint will positively aver and content that he is not guilty of any financial mismanagement, abuse of office, fraud or insubordination and that his dismissal was done arbitrarily without any jurisdiction cause

It is significant that the plaintiff does not anywhere deny the charge of being incompetent To succeed in an action for wrongful and unfair dismissal the plaintiff must show the followings:-

- ^I What of good faith on the part of defendant. - 2. Victimisation or unfairness;

3. A basic error of violation of principles of natural Justice, and

4. Reasons for dismissal are completely baseless or perverse.

It is clear from the plaint that the District Council discussed the District Finances and found some irregularities resolved to send the plaintiff on forced leave while allegations in his mismanagement of District Finances, abuse of Office incompetent and insubordination were investigated.

The Auditor General was then invited to make special Audit, which.was done and that Audit report was discussed by the Kitgum Public Accounts Committee before the plaintiff's services were terminated.

Article ^I 73 of the Constitution on which Mr. Olaa for the Plaintiff relied prescribes that:

"/ *~3.* .4 *Public Officer shall not be*

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*(a) ^I 'iclinnsed or discriminated againstfor having performed his or her dunes faithfully m accordance with this constitution is or (b) Dismissed or removedfrom office or reduced in rank or otherwise punished withoutjust cause* ".

This provision does not in any way take away the right of the Government of Uganda of a Local government to summarily dismiss its servant for misconduct, inconsistent with the due and faithful discharge by the sen ant of the duties for which he was engaged, if a servant is guilty of fraud in connection with the execution of his duties, the master can surnmarils dismiss him. Furthermore when a skilled servant is engaged, there is on his part an implied warrants that he is reasonably competent for the work which he is employed to undertake, and if he proves to be

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incompetent the employer is not bound to continue him in his service for the term for which he was engaged. See *Harmer* v. *coreitus* [1858] 5 C. B. M. S. 236, *Cuckson v. Stores* [1858] ^I E&E 248., *Searle v.~Rudley* [ 1873], 28 L. R. 411.

In *Kayondo* v. *Attorney General* Kampala HCCS No.422 of 1988. [ 1988-1990] HCB 127, Byamugisha, J., held that the court will use its inherent powers to strike out a plaint where the defect is apparent on the face ofthe record and where no amount of amendment will cure the defect. The procedure is intended to stop proceedings which would not be brought to court in the first place and to protect the parties from the continuance of futile and useless proceedings. However before striking out the pleading the court must be satisfied that the case which has.been presented to court is unmaintainable and unarguable. ¹ entirely agree with foregoing propositions. In the instant case, the plaint does not disclose why the action ofthe

defendant can be said to be wrongful, or unjust..

The defendant look all the legitimate steps to investigate the allegation against the plaintiff before terminating his services. ^I therefore find that the plaint does not disclose a cause of action for wrongful and unfair dismissal.

The provisions of Order ⁷ r. 11(a) of the civil procedure Rules tire clear on the fate of a plaint which does disclose a cause of action. The plaint shall be rejected.

In the result because by the failure ofthe plaint to set out the very words alleged to have been defamation disclosed and having found that action for wrongful and unfair dismissal is not disclosed by the plaint, the plaint is rejected under Order ⁷ r. ¹ ¹ (a) of civil procedure rules. The defendant shall have the costs ofthis suit.

^I o MAI. INCA JUDGE 29/10-1999.

22/02/2000

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In Chambers.


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Mr. Angeret for defendant present Mr. Olaa for plaintiff absent Both parties absent.

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Ruling delivered by me and signed.

P P OK1-LI. O ASSISTANT REGISTRAR