[2020] UGHCCD 44

#### THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT KAMPALA

#### (CIVIL DIVISION)

#### **CIVIL SUIT No. 159 OF 2018**

#### 1. IDDI OUMA

#### **2. SSEMBAJJWE PAUL ::::::::::::::::::::::::::::::::::::** $10$

#### **VERSUS**

#### 1. UGANDA NATIONAL ROADS AUTHORITY

### 2. DOTT SERVICES LIMITED

## **3. ATTORNEY GENERAL OF UGANDA ::::::::::::::::::::::::::::::::::: BEFORE: HON. MR. JUSTICE BASHAIJA K. ANDREW**

$15$

#### **RULING:**

At the commencement of the hearing of the suit, Mr. Tumusiime Enos Counsel for the $2^nd$ Defendant raised a number of preliminary objections to the suit.

The first one is that the $2^{nd}$ Plaintiff has never appeared in court. $20$ Counsel sought to move court under order 6 rule 30 CPR to strike out the suit mainly that it discloses no reasonable cause of action. Counsel submitted that the plaint alleges fraud against the 5 Defendants but lacks the particulars of fraud. That no particulars of fraud arepleaded or particularized and for that reason should be struck out.

The second objection is that the subject of the contract for the rehabilitation of Nakalama-Tirinyi Road has already been reinstated,

extended and was granted to the 2 10 nd Defendant. That as such the plaint is overtaken by events and serves no useful purposes and should be struck off.

The third objection is that the Plaintiffs seek general damages. That the Plaintiffs have not pleaded anywhere that they are tax payers, 15 yet they claim damages on behalf of all Ugandans. That as such they have not disclosed a cause of action and their case fits in the category of futile and useless cases. That for that reason the plaint be struck out with costs.

In Reply, Mr. E. Kayondo holding brief for Mr. Sserwanga Counsel 20 for the Plaintiffs subsequently filed written submission in reply. He argued (on the first preliminary objection) that the case was coming for mention for the first time and that the 2 nd Plaintiff has previously attended court/mediation but that outlines date he was

- 5 out of the country. That in any case under Order 3 vi CPR a party to the suit may appear in person or through a recognized agent or an Advocate duly appointed. That this objection should be overruled since the presence of the 2 nd Plaintiff's Advocate in court is deemed appearance on behalf of the 2 nd Plaintiff. - 10 On the objection that no particulars of fraud are pleaded, Counsel submitted that in paragraph 6 (b) of the plaint and 13 (b) thereof, a cause of action and prayer is made to the Court to declare that the said agreement was executed "illegally" and "fraudulently." That the particulars of illegality are of the said fraud and irregularities are 15 pleaded even though headed as particulars of illegalities in the procedure to reinstate the contract that was initially terminated."

That fraud is an illegality for this proposition counsel relied on the case of *Fredrick J. K. Zaabwe Vs Orient Bank and Others S. C. C. A No. 04 of 2006.* Counsel opined that having pleased 20 illegalities, fraud is consequently pleaded as an illegality in the plaint.

On the issue of particulars of fraud Counsel argued that the word "Fraud" was omitted in the heading of subparagraphs (ii), (iii), (iv)

and( $v$ ) but that particulars of fraud are disclosed and the omission $\mathsf{S}$ to head them with the word "fraud" is a mere technicality that does not go to the root of the matter. For these propositions, counsel cited Okello vs. UNEB Civil Appeal No. 12 of 1982 (SC) (unreported), and *Tororo Cement Co. Ltd vs. Fronkina*

#### International Ltd SCCA No. 2 of 2001. $10$

On the point that the contract has been reinstated and granted to the $2^{nd}$ Defendant Counsel replied that whether or not a suit is overtaken by events depends on whether there is a live dispute between the parties. That the Plaintiffs see declarations that the tripartite agreement entered into by the defendants on the $23^rd$ day $15$ of March 2018 was null and void and executed fraudulently. That Court is being called upon to consider various transactions set out in pleadings and make the declaration as prayed for. That it is immaterial whether the contract was eventually awarded or even that the road the subject of the contract was eventually worked $20$ upon. That in any case a preliminary objection where evidence is required cannot dispose of a suit. Counsel cited **Mukisa Biscuit**

$\overline{4}$

5 *Manufacturing Company vs. West End Distributors LTD, (1969) EA 696.*

Counsel argued that whether or not the suit is overtaken by events is a matter of evidence which shall be heard and determined during trial.

10 Regarding issue ofdamages Counsel submitted that these can only be determined after the trial. Counsel again relied on the case of *Mukisa Biscuit Manufacturing Company vs. West End Distributors Ltd* (supra).

Counsel maintained that the suit discloses a cause of action against

15 Defendants in sofar as it is filed under Article 50 ofthe Constitution and pleaded under paragraph 5 of the plaint.

## **Opinion:**

The first objection is that the 2 nd Plaintiff has never appeared in court. As to who may appear in court in a suit, order 3 r1 CPR

20 provides that a party may appear in court in a suit in person, or by his or her recognized agent, or by an Advocate duly appointed to act on his or her behalf. Counsel E. Kayondo holding brief for Mr. Sserwanga have been appearing for the ² nd Plaintiff. They are Advocates of the High Court and Court subordinate thereto and

5 there is no contrary evidence to that position. They are therefore deemed to represent and appear for the 2 nd Plaintiff as his duly appointed Advocates. The objection in that regard is overruled.

On the issue of the plaint not disclosing a cause of action, indeed it is observed that no particulars of fraud are pleaded or 10 particularized. Although merely not particularizing fraud would not render the pleadings bad, the failure to plead fraud would render the plaint not to disclose of a cause of action where the claim is founded on fraud. The reading of the plaint in paragraph (q) (i) shows a subheading titled;

# 15 **"PARTICULARS OF THE ILLEGALITIES IN THE PROCEDURE TO RE-INSTEATE THE CONTRACT THAT WAS INITIALLY TERMINATED:"**

The Plaintiffs then go on to aver facts they allege constitute illegalities in the procedure to re-instate the contract from (i) – (v). 20 The careful reading of the said averments only shows that the plaintiffs' fault the legality of the procedures adopted by the 1 st Defendant in reinstating the 2 nd Defendant's contract that was initially terminated.

- 5 Nothing in the averments points to or refers to any fraud in reinstating the initially terminated contract by the 1 st Defendant. It is not correct for counsel for the Plaintiffs to argue that merely because procedure adopted by the 1 st Defendant is illegal. It is necessary fraudulent. Counsel relied on *Nafula Vs Kayanja &* - 10 *Anor Civil Suit No. 136 of 2011* cited in *Fredrick J. K. Zaabwe Vs Orient Bank and others case* (supra) that fraud is an illegality. Whereas indeed fraud is an illegality, not every illegality is necessarily fraud. The definition of the term fraud in *Fredrick J. K. Zaabwe case* (supra) is very instructive. It means, among others; - 15 *"... the intentional perversion of truth by a person for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrendera legal right....."*

On the other hand Black's Law Dictionary 8 th Edition defined 20 "illegal" to what is contrary to or not authorized by law.

As these definitions apply to the particulars pleaded above, no fraud was plead let alone particularized. It is not a matter of form but a substantive requirement that where a cause of action is based on

5 fraud, the alleged fraud must be pleaded and particularized. Merely pleading and setting out particulars of alleged illegality in procedure adopted by 1 st Defendant in reinstating the contract does not amount to pleading fraud. Needless to state that the object of pleadings is to inform each party what is the cause of the opposite 10 part that he/she will meet before and at the trial. As was held by Supreme Court in *Interfreight Forwarders (U) Limited vs. East African Development Bank [1994 - 1995]HCB 54,* pleading particulars in detail is meant to define with clarity and precision to issues or questions which are in dispute between the parties and 15 are to be determined by court.

If the pleading fail to clarify the precise facts constituting a cause of action or prevent either party from knowing the cause of action, the plaint will not disclose a reasonable cause of action and the defence will not offer a reasonable defence and they shall be struck off as a 20 result.

Whereas this court agrees with the holding in *Okello vs. UNEB* (supra) that failure to specify particulars of fraud under a definite heading entitled "Particulars of fraud" does not initiate pleadings,

- 5 this court holds that failure to plead fraud would vitiate a plaint where the claim is founded on fraud. This is not a mere technicality in form as submitted by Counsel for the Defendant. It is a substantive requirement that a cause of action be disclosed by the plaint and annextures thereto. - 10 Besides the above, the Plaintiffs bring this action under Article 50 (supra) and claim to be doing so on behalf of Ugandans and also claim damages presumably on behalf of Ugandans. This has before been held to be untenable

in ………………………………….. …….……………………………………… 15 ………….

That a case cannot be brought on behalf of an unnamed group called Uganda Peoples' Congress. That the parties have to be ascertained with clarity and an amorphous group of persons cannot sue or be sued because it raises issues of costs and damages. If the 20 group on whose behalf the action is brought, on whose behalf the action is brought loses, it will not be possible for it to pay damages or costs. On that account, the suit was declared to disclose no

5 reasonable cause of action against the Defendants and was incompetent as the Plaintiffs lack thelocus to bring this suit.

On whether the suit is overtaken by events, it is not true that that issue can only be determined after hearing evidence. Pleadings of parties if not controverted, can also bring out facts that show that a 10 suit is overtaken by events.

In paragraph 20 (c) of the written statement of defence of 2 nd Defendant, it is averred that;

*"The new Contract signed by the 2nd Defendant with the 1st and 3 rd Defendants, Annexture "I" to the Plaint, paragraphs 2*

15 *(i), (ii), (iii) and (iv), is for new scope of works, more than the Contract entered into on 2nd February 2015 and the new Contract is UGX.135,371,669,415/⁼ which is less than the Bid price by China Civil Engineering and Construction Corporation of UGX.137,932,201,382/⁼ Ugandan tax payer over* 20 *UGX.2,000,000,000/⁼ as a result the new contract that is being executed by the 2 nd Defendant."*

5 There is no reply to this defence relating to the fact that the new contract has been entered into as of the stated day of 2 nd February 2015 which predates the filing of the instant suit on 24/4/2018 by over three years. Therefore the argument that the Plaintiffs see a declaration that the tripartite agreement is null and void, is 10 unsustainable. A declaration is one such remedy a court can grant in a suit.

Courts however, grant remedies that will be effective. If the effect of a remedy is that it will be of no consequence, the court may not issue such remedy. In the instant case the subject matter of the 15 suit, the tripartite agreement, was entered into reinstating the earlier terminated agreement to rehabilitate the road in issue. Declaring it null and void is of no consequence at all. A declaration for the sake of it is of no effect and issued in fain. This is not to mention of the order of prohibition also sought in the plaint. Court 20 cannot prohibit what has already been done.

The next effect is that the objections have merit, they are upheld and the plaint is struck off with costs.

## BASHAIJA K. ANDREW

## **JUDGE**

*Date:*....................................