[1990] UGHC 37

TILE REPUBLIC OF UGANDA

IN THE 'HIGH COURT OF UGANDA AT KAMPALA

## CIVIL SUIT NO. 436 OF 1989 .

GEORGE'BROWN TURYAMUREBA ....... , . PLAINTIFF, ^r VERSUS

ATTORNEY'GENERAL . . . . DEFENDANT, BEFORE:.- The ^Honourab le Mr. Ag, ^Jus ^t ice J, W. N. Tsekook^o

## *-*RULING *. —...,*

On 2nd April, 1990 I permitted the plaintiff to proceed exparte with the hearing of Civil Suit No. ^z.'-36 of 1989 under O⁰⁹ Rule 17 (l)-(a) of the Civil Procedure Rules because of absence\*of the defendant who had been duly served-but was ab'sent without reason. Instead of adducing evidence Mis I Mugisha, learned counsel for the plaintiff orally raised a preli minary application under 0.6 rules 7 and 9 and asked me to strike off the Written Statement of Defence which in his<view offended the two rules.

This application was unnecessary because as I had permitted the hearing to proceed exparte striking out the Written Statement of Defence.containing averments of mere general denials would, if the application succeeds, leave the position of this case unchanged.

The plaintiff .would still have.--to produce'evidence to prove his case. There would be no automatic decree for the plaintiff if that is what Mr. Mugisha.desired to achieve.

I shall however consider the application which is really an academic exercise.

The contention of Mr. Mugisha is that the Written Statement of Defence contravenes the provisions of 0.6 Rules 7 and 9 in as much as the denials by the defendant are not specific but omnibus. That it is incumbent upon the defendant to specifically deny every pleading. That the defence contravened the rationale of pleadings by failing to conform with rules of pleadings and the plaintiff stand to be prejudiced if denials are not restricted to specific points. He cited the cases of Esso Petrolium Co., Ltd. Vs. South Port Corporation /19567 E. C. 218 (the passage at 241). Kasule Vs. Makerore University /1975/ HCB 376, Byrd Vs. Naun 18777 7 Ch. D 287; Thorp Vs. Holdsworth /18767 3 Ch. D.637. Pinson Vs. Lloyds & National Provincial Foreign Bank Ltd. 29419 2 ALL ER 636 and Odgers Principles of Pleading and Practice in Civil Actions in the High Court of Justice 21st Edition pages $126, 176 - 177.$

The application made by Mr. Mugisha should normally if circumstances justify have been made under 0.6 Rule 29 and not under the two rules.

Learned Counsel did not refer to Rule 29, however. Besides I think that application of this sort ought to be promptly made long before the hearing date. There are authorities in decided ease to support this view, In the case of Habib Javer Manji Vs. Vir Singh /19627 EA. 557, the Court of Appeal for East Africa considered an appeal where a defence had been struck out by the trial judge following an application which is not . . . . . . . . . .

$80003501/3$

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quite dissimilar from the; present application. There the court of appeal held inter alia, that "lt was incumbent on.the respondent., if he considered the defence ought to be struck out as disclosing no reasonable cause of action,, to make application.promptly by way of motion, or,' if he was embarrassed by leek of particulars, to ask for further and better particulars". The decision of trial' court was reversed. It is thus not normally proper to trial wait until the /opens before making the application for striking, out the- offending pleading,

But the position of Mr. Mugisha has been made worse,- On 4th August, 198\$, he gave written, consent to the late filing of the Written Statement of Defence of which he is now complaining and desires to be struck out. The statement which bears what appears to be his signature is in the same form as it was when .he consented to it six months ago. Ha.ving thus accepted the statement he has not persuaded mo why he did not object to it on 4th August, 1989 and objects to it now. He should have withheld his consent until the. Written Statement of Defence r-was suitably composed,

I also think t]u\t if a pleading offends rules 7 and 9 of Order 6., normally the practice is to ask for further and better particulars. Indeed I could go further and say that a plaintiff cou,ld be ;perfectly in order to invoke the provisions of either . Order 10 (interrogatories) or' Order 11 (admissions) where a defence is in the form in which the present one is.

I don'^t think the authorities cited by learned counsel are helpful in this situation. The case of Kasule Vs. Makerere University (supr^) deal with failure\*by the plaintiff to plead

failed . escamplary damages which he therefore to recover. it is true Esso potrolium case (supra) at page 2^-1 has this statement that "The function of pleadings is to ascertain with precision the matters on which the parties defer and points upon which both parties desire a judicial decision. In order to attain this object it is necessary that the pleadings between the parties should be conducted according to those Rules (of procedure)". But that statement is not authority for the proposition that the Written Statement of Defence as. it is must be struck cut.

. The case of Thorp Vs. Holdsworth dealt with a denial which was definitely avasivc as explained in 0.6 Rule 9 of our Rules« but not the denial or traverse such as that- pleaded in the present statement of defence.

The case of Byrd Vs. Nunn (supra) appears to be authority against departure from pleading during giving of evidence^t The defendant was precluded from calling evidence to establish what he had denied in his defence.

The case of Pincon Vs. Lloyds seems to be adverse to the cause which Mr. Mugisha had sought .to advance. This is c&ear from the leading judgment of Stable J. at page 642 and 64j of the report of the decision of- the Court of Appeal. I shall quote "The plaintiff in the .action, who is the. appellant here and in the court below, took out a summons asking for, in substance, (i) to have the defence struck out unless dmended, on the ground that it is an abuse of the process of the Court, in that it traverses a number of allegations in the statement of claim which have already been admitted .by the- defendants in correspondence or else where, and (ii) for particulars of one of the

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5 './'paragraphs' of the' iefence'; • .

,rAs regards the application to strike out the defence on the grdU'nd that it traverses a number of facts alleged in the state\* ment of "claim which are hot really in dispute, and which have been admitted by the defendants on earlier occasions, in my judgment, it is sufficient to say that, while there may be exceptional cases in which a defence can be struck out on this ground, such cases must be rare, and the remedy is available only where it is apparent that the defence is afrivolous our vaxa\* tious document, not designed or presented as a serious piece or pleading. In my judgment, that is not this case, and| speaking generally I see no reason why.a defendant is not entitled to put a plaintiff to the proof of his whole case, if so advised. It is a common place of pleading to put in issue a fact as to which there is no real dispute, in order to compel the plaintiff to call a particular witness to prove that fact, and so afford the defendant an opportunity to cross-examine the witness on other matters material to the case. • This seems to me a legitimate and well recognised method of pleading, and one which', on ocea» sion, serves a useful purpose".

At.page 646 the learned, judge:continued while considering the mature of a denial or traverse in a pleading and stated:

"A traverse in a defence is never an'assetion of fact on oath, and often is not an assertion of. fact at all# but may amount to no more than: Prove your allegation if you can. • I do not intend to give you any help by admitting'it".

The learned judge and his colleagues' were there dealing with application for particulars. But as -can be seen from what I have quoted a defendant who sets up a simple denial by way of

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his defence cannot bo compelled to do more by way of pleading# Ho can only be held to His denial during the hearing of "the case so that he is precluded from adducing evidence in'support of •positive : asset ions thus departing fron the simple denials# The statement, of Staple J. has been applied- in other cases see Chapple Vs•-Electrical Trades Union /^96l7 3 ALL- E. R, 612 and Hav/ard Vs. Bornman /1972/ 2 ALL ER. 867 ,

The type of Written Statement of Defence which Mr, Mugisha objects to is very common in my experience particularly from the Attorneys^Generals Chambers and appears to have been adopted by our Courts. I am not saying those statements are good^t

I don't consider it desireable and practical to reproduce \*• paragraphs J 'to 18 of the plaint partly because they are unduly lengthy and so inter related that reproducing parts thereof will be unhelpful. I should ' however. reproduce the relevant paragraphs ¹ and 3 of the Written Statement of Defence which state:.

"1. Save as hereinafter expressly admitted, the defendant denies each and every allegation as if the same were herein set forth and traveased soriatum".

shsj. The defendant denies each and every allegation aontav incd in paragraphs 3,4,5,6,7,8,9,10,11,12,13,14,15,16.17 and 18 *I of* the plaint as he .has no knowledge and liability and at the hearing of this suit the plaintiff shall be put to strict proof thereof"•

This form of pleading gives nothing to the plaintiff and would at a glance appear to contravene 0t6 Rule 7. But as it was observed by Stable J, it is persisted in the present day

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courts and has received the acceptance of the of Uganda?. Take for instance the case of Dritoo Vs. 'Jest Nile District Adminisw tration /T9687 ^28\* Counsel for the plaintiff belatedly raised a.complaint against a similar Written Statement of Defence, Faud J, as he then was, made the following remarks at page 4jOe "He (Counsel)submitted that the facts averred in the plaint have not been specifically denied in the defence and they should therefore be taken as admitted under 0,8. Rule 5. I agree that that statement of defence is unsatisfactory in some respects but the opening words (which contain a general traverse) seem consistently to be accepted, though, it seems, with reluctance, by the courts".

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Again in Joshi Vs. Uganda Sugar Factory Ltd. /'T9687 EA| 570 the Court of Appeal for East Africa dealt with the issue of request for particulars and discussed the matter and made reference to the same Order 6 Pules 7 and 9 and stated'this at page ⁵⁷² of the report with respect to denials: M defendant • is perfectly entitled, if he wishes, to adopt an entirely ^&lt; negative attitude, putting the plaintiff to proof of his al^e^ gations, and if he doos do, the plaintiff cannot, by asking for particulars, compel him to make positive assertions. On the other hand, of course, when a defendant adopts a purely defensive attitude in his .pleadings he will not be allowed to conduct his case on a. defferent footing^y or at least only on terms"• '

It can be seen that the reasoning here supports the view that a defendant is entitled to file a Written Statement of Defence in the form if has been filed in this Suit. And this

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is the same, reasoning in the other cases quoted earlier in thio ruling. In my view the observations in these cases apply equally where as in this application the plaintiff insteading of asking for particulars applies for the statement to be struck out. A defence cannot be struck off merely because it has been framed in an entirely negative form. I think the application is misconcer ivod. The omnibus traverse which counsel complains about is and has been held acceptable to Courts in Uganda.

In the HCCS J14 of 1987 (N. R. Behangana Vs, Attorney General (unreported) I observed with respect<to the defence statement there that "by the way in my view (the defence) amounts to contravening the provisions of 0,6 Ryle 7 of Civil Procedure Rules in as much as the defence consists of general denials"⁹ •My observation should be restricted to the facts of that case,

Because of the reasons I have given this application must fail. It is dismissed accordingly. In this application I make no order as to costs, ,

J.'i;N.'TSEKOOKO

AG. J U D G E

19/4/1990 at 9d6 a.m.

Mr. ljugisha for plaintiff present.

Plaintiff present,

Omwero for interpretation.

Ruling delivered in presence of above,

f *. .:fc •* J. W. N? ^t^ekooko

AG, JUDGE 19/4/1990

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