[2024] UGHC 1273

# **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT LUWERO**

### **MA NO. HCT-17-CV-MA-0021-2024**

## **(ARISING FROM CIVIL SUIT NO. HCT-17-CV-CS-0007-2024)**

## **STABEX INTERNATIONAL LIMITED……APPLICANT**

**V**

- **1. NABAGALA AISHA** - **2. KOMUREMBE SAIDAT** - **3. SANDERSON LOGISTICS LTD** - **4. NAMANYA FRANCO……………………….. RESPONDENTS**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**MA. NO. HCT-17-CV-MA-0028 -2024**

**(ARISING FROM HCT-17-CV-CS-0007-2024)**

**SANDERSON LOGISTICS LTD ………………….. APPLICANT**

**V**

- **1. NABAGALA AISHA** - **2. KOMUREMBE SAIDAT………………………RESPONDENTS**

## **BEFORE LADY JUSTICE HENRIETTA WOLAYO RULING**

### Introduction

- 1. On 20.8.2024 when parties appeared before me, it became evidence that the defendants filed two separate applications. Stabex International filed MA. Mo. 0021 of 2024 seeking orders to strike out the plaint for failure to disclose a cause of action against it. Sanderson Logistics Ltd filed MA. No. 0028 of 2024 seeking orders to strike out the second plaintiff Komurembe Saidat for having no locus standi to bring the suit. - 2. As I was studying submissions of both these defendants, it became evident that I should deliver one Ruling that addresses the concerns of each defendant. MA. NO. 0021-2024 STABEX INTERNATIONAL LTD V NABAGALA AISHA KOMUREMBE SAIDAT; SANDERSON LOGISTICS LTD; NAMANYA FRANCO

- 3. By a chamber summons filed on 15.5.2024, the applicant moved the court for following orders: - a. That the first and second respondent in Civil Suit No. 007 of 2024 does not disclose a cause of action against the applicant Stabex International. - b. That Civil Suit No. 007 of 2024 be struck out for non-disclosure of a cause of action against the applicant. - c. That costs be provided for. - 4. The application is supported by the affidavit of Daniel K Cherutich of Kafeero & Co. Advocates. - 5. The two respondents Nabagala Aisha and Komurembe Saidat opposed the application through the affidavit in reply of Komurembe Saidat which was deposed on behalf of both respondent with express authority from the first respondent Nabagala Aisha.

# MA. NO. 0028-2024 SANDERSON LOGISTICS LT V NABAGALA AISHA AND KOMUREMBE SAIDA

6. By a notice of motion filed on 20.5.2024, Sanderson Ltd moved the court for an order that Saidat Komurembe does not have locus standi to sue and therefore should be struck off the plaint. The motion is supported by the affidavit of Atwine Agnes of Kob Advocates.

# Background facts

7. By a plaint filed on 9.2.2024, the first and second respondents Nabagala and Komurembe sued Stabex International Ltd; Sanderson Logistics Ltd and Namanya Franco in the tort of negligence and breach of statutory duty. The brief particulars of the claim are that Nabagala was an employee of the three defendants as a pump attendant. The plaintiffs further aver that on 2.6.2023 at 10.30 p.m, Nabbagala who was seven months pregnant was on duty at the Luwero station and as the defendants off loaded fuel from the fuel truck/tanker, the said tanker exploded suddenly, setting the fuel station ablaze which caused Nabagala to suffer third degree burns. The second respondent Komurembe is

Nabagala's mother who visited numerous hospitals with her daughter and incurred expenses in treatment and transport.

- 8. Stabex International Ltd filed a written statement of defense in which it denied that Nabagala was their employee. Furthermore, it had a franchise agreement with Sanderson Logistics Ltd under which the parties agreed, among other terms, as follows: - a. Sanderston Logistics Ltd is under a duty to install firefighting equipment and it is therefore solely liable for any loss incurred in the event of a fire outbreak; - b. It has a duty to provide an enabling, safe , healthy working environment at the fuel station; - c. It is obliged to employ her employees to man and manage the fuel station and is liable for any grievance arising from the employment. - 9. The second defendant (Sanderson ltd) filed a written statement of defense in which it denied that Nabagala was its employee and averred that she contributed to the negligence as she did not seek authority to work; she failed to notify its employees of the leakage and she failed to reasonably foresee that a fuel leakage would result in an explosion. - **10.** In their reply to the written statement of defense of Stabex, the plaintiffs maintained that the franchise agreement created an agency relationship and that Stabex Ltd is vicariously liable as a result. Furthermore, that the applicant who operates downstream in the oil and gas industry to not just manage risks but also to uphold safety as required under the **Petroleum (Exploration, Development and Production) (Health, Safety and Environment Regulations) 2016.**

11. All parties filed written submissions through their respective counsel that I have carefully considered.

### Resolution of the application

#### *Whether the plaintiffs have a cause of action against Stabex ltd*

- 12. From the affidavit in support of the MA. No. 21 of 2024, it is evident that there is a contradiction between the prayers in the chamber summons and the affidavit in support. While the substantive prayers in the chamber summons are to strike out the plaint for failure to disclose a cause of action, in the affidavit in support, the applicant wants this court to make declaratory orders that Sanderson Logistics Ltd is liable in negligence and for payment of damages to the two respondents. Evidently, the applicant's case is not helped by this uncertainty on what it really wants whether an order striking out the plaint or substantive orders which can only be made after a full trial. - 13. The above notwithstanding, I agree with counsel for Stabex Ltd that for a cause of action to be established, the plaint must show that the plaintiff enjoyed a right; that right has been violated; and the defendant is liable. - 14. Counsel for Stabex Ltd further submitted that although the plaintiffs enjoyed a right, Nabagala the first plaintiff did not attach evidence of an employment relationship. Furthermore, that the second defendant Sanderson Logistics ltd is not its agent and therefore the Stabex Ltd is not vicariously liable for the negligence. Counsel further submitted that although the applicant and Sanderson Logistics Ltd have a franchise agreement, the franchisor is not responsible for hiring, direction, discipline, discharge and firing of the employees of Sanderson Logistics ltd. Counsel also outlined the elements of negligence and submitted at length on what each entails.

- 15. In reply, counsel for the two plaintiffs submitted at length that it is premature for the court to delve into the merits of the suit at this stage. In essence, counsel submitted that Stabex ltd was sued as a tortfeaser along with Sanderson Ltd and the case should go to full trial to establish whether both or one of them owed a duty of care. - 16. Whether the plaint discloses a cause of action cannot be determined by interpretation of the franchise agreement alone but it requires the court to delve into a host of other issues such as whether Nabagala was an employee of Sanderson Logistics Ltd; whether the applicant owed a duty of care to Nabagala regardless of the exclusion clauses in the franchise agreement; and whether the fire outbreak and injuries suffered were reasonably foreseeable, among other issues. All these issues require evidence, the franchise agreement inclusive which I cannot possibly attempt to admit in evidence at this preliminary stage. In other words, it is not possible to delink the cause of action from the particulars in the claim. Therefore, to establish if the plaintiffs do not have a cause of action against Stabex, the case has to go for full trial first.

### *Whether Sadait Komurembe has locus standi to sue*

- 17. On the issue of locus standi of Saidat, Counsel for the plaintiffs submitted that she is Nabagala's mother who has been attending to her and who has incurred transport costs and who is taking care of her child and will continue to do so due to the injuries Nabagala suffered. - 18. I can only say that whether Saidat has locus standi is a matter of evidence which means it cannot be disposed of as a preliminary issue in view of the pleading by the second plaintiff that she was a dependent of her daughter Nabagala and prayed for damages for loss of dependency, loss of future earnings and livelihood. - 19. In the premises, I make the following orders:

- a) The application by Stabex Ltd for an order that the plaint does not disclose a cause of action cannot be determined as a preliminary issue and the same will be framed as an issue for trial. - b) The application by Sanderson Ltd that Saidat Komurembe has no locus standi to sue cannot be determined at this stage and will be framed as an issue for trial. - c) Costs shall be in the cause. - 20. Counsel for the plaintiffs will proceed with the summons for directions before the registrar.

# **DATED AT LUWERO THIS 24TH DAY OF OCTOBER 2024.**

**\_\_\_\_\_\_\_\_\_\_\_\_ LADY JUSTICE HENRIETTA WOLAYO** Legal representation Kafeero & Co. Advocates for Stabex International Ltd Redmond Associated Advocates for Nabagaga and Komurembe Kob Advocates for Sanderson Ltd