ISLAMIC UNIVERSITY IN UGANDA

FACULTY OF LAW

Academic Year 2023/2024

Semester II
Bachelor of laws
NAME COURSE UNIT REG NO
BET ALI Civil Procedure I CW 120-053011-23178

Question
“whether a plaint does or does not disclose a cause of action is a matter of law which can be
raised by the defendant as a preliminary point at the commencement of the hearing of the action
even if the point had not been pleaded in the written statement of defence. Obviously it is proper
and good practices to aver in the opposite party’s pleadings by the other side are defective and
that at the trial, a preliminary point of objection would be raised. But failure to so plead does not
in my opinion bar a party from raising the point” prepare a scholarly article exhaustively
dissecting the dictum carried in the above quotation while making reference to relevant legal
resources.

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RESOLUTION .
Section 191 provides for the general rule which state that, every suit shall
be instituted in such manner as may be prescribed by rules.

Order 4 rules 1 and 2, which provide that every suit must be

commenced by presenting a plaint to the court or an officer
designated by the court for this reason, will also be examined since
we are handling a plaint in this manner. (2) Every plaint must abide
by the guidelines in Orders VI and VII of these Rules, to the extent
that they apply.

Definition of a plaint: A plaint is a written statement of the plaintiff's

claims against the defendant and the relief the court is seeking. The
decision in General Parts (U) Ltd & Haruna Semakula vs.
NPART SCCA2 stated that a plaint, original summons, or petition
are the only ways to institute a lawsuit

Order 7 R 11 states that a plaint will be dismissed if it fails to state a

cause of action, if the lawsuit is legally barred, or if it appears that
the complaint is frivolous or vexatious.
Order 7 Rule 1 stipulates that the plaint must include the details. We
will also rely on Order 7 Rule 1(e) in this instance, which states that
(e) the facts comprising the reason

A CAUSE OF ACTION

In the Tororo Cement Co. v. Frokina International Ltd 3. case, it was

defined as any fact that must be proven in order for the plaintiff to
succeed or, in the event that it is rejected, any fact that the plaintiff
must prove in order to receive a judgement. The court decided that
the plaint will be dismissed under Order 7, Rule 7(a) of the Civil
Procedure Rules, "(a) where it does not disclose a cause of action."
Every truth that must be established in order for the plaintiff to
succeed or, in the event that it is refuted, every fact that the

1
civil procedure act
2
https://old.ulii.org/ug/judgment/supreme-court/2000/10 8:30am
3
https://www.studocu.com/row/document/islamic-university-in-uganda/civil-procedure/tororo-cement-co-ltd-vs-
frokina-international-ltd-scca-no2-of-2001/78853631 7:12am

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plaintiff must establish in order to receive a judgement constitutes a
cause of action.

What defines a cause of action is the next query.

In the case of Auto garage v. Motokovu 4, it was said that: A person

had a right; The plaintiff enjoyed that right; and The defendant
infringed upon that right.
In order to successfully assert one's claim, these three elements
must be demonstrated in the plaint; otherwise, there will be no basis
for legal action.

IF THERE IS NO CAUSE OF ACTION FOR THE PLAINT

The court is simply required to review the plaint and any appendices
it may have, in order to decide whether or not it discloses a cause of
action. According to the constitutional court's definition of a cause of
action in Al Hajj N Sebaggala vs. A.G & Ors,

A "cause of action5" is any truth that, if proven, the plaintiff would

have to show in order to maintain his claim to a court ruling. It must
contain an action taken by the defendant and cover all relevant
facts that support the claim, not only the actual infringement of the
right being sued. It does not include evidence that is required to
establish the facts; rather, the cause of action must include all of the
facts that the plaintiff must establish in order to get a decree, as
well as any information that, if proven, would grant the defendant
the right to an instant judgement. It is unrelated to the defense,
which the accused may put up. Additionally, it is independent of the
nature of the plaintiff's requested relief. Prior to the lawsuit being
instituted, the cause of action must exist. Therefore, the plaint lacks
a cause of action if the case's facts are not disclosed in it.

What qualifies as a preliminary objection?

In most cases, if filings reveal a case that the court is confident

won't win, the case should be struck out or dismissed completely,
ending the litigation in a summary fashion to save the court's time
and money. These may be ordered by the court on its own initiative
4
http://lawschoolnerds.blogspot.com/2014/01/cause-of-action.html?m=1 7:17pm
5
https://ulii.org/akn/ug/judgment/ughcld/2013/46/eng@2013-05-27 7:13pm

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or in response to a request from any party involved in the case. This
request may be referred to as a preliminary objection informally or
formally.

In the Mukisa Biscuit Manufacturing Co. Ltd. v. West End

Distributors Ltd6. case, preliminary objection was described as a
legal argument that, if raised explicitly in pleadings or pleaded,
could dismiss a lawsuit if it is successfully contested. Law of
jurisdiction and lack of cause of action are two examples of
preliminary objections.

Preliminary objections are typically resolved without the need to

summon witnesses based on pleadings and uncontested facts.
Therefore, in Western Steamship Co. Ltd. vs. Amaral
Sutherland Co. Ltd7., it was decided that in cases where there are
disputed facts, an order for a preliminary point of law trial should
not be granted and, if it is, it may be set a side.

By definition, preliminary objections should be submitted at the

beginning of the process since it is appropriate to notify the court of
an alleged irregularity that needs to be fixed before a case is heard.
Whether or whether they are entered into a WSD plea, the
preliminary objections may be made at the beginning of the trial.

Order.6 r 288 Pleading allows one to bring up legal points. Any

party to a lawsuit may raise any point of law in their pleadings, and
the court will address any such points at or after the hearing, unless
the parties agree otherwise or the court orders that a point of law
may be set down for hearing and addressed at any point prior to the
hearing.

The case of Tororo Cement Co. vs. Frokina International Ltd 9.

provided justification for filing a preliminary objection at the outset
of the lawsuit, stating that it is crucial in the following ways:

1. This serves as notice to the other party, encouraging it to

arrange its pleadings before the court date.
6
https://ulii.org/akn/ug/judgment/ughccd/2020/44/eng@2020-02-28/source.pdf 7:18pm
7
https://ulii.org/akn/ug/judgment/ugsc/1999/23/eng@1999-06-11/source.pdf 7:19pm
8
Civil procedure Rules
9
https://www.coursehero.com/file/p5oprq4b/See-Tororo-Cement-Co-Ltd-V-Frokina-International-Ltd-SCCA-No2-
of-2001-for-the/ 7:21pm

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 2. If parties can resolve preliminary issues beforehand, the
court's time may be saved in this way.

RESULTS IF THE INDIVIDUAL FAILS TO RAISE A PRELIMINARY

OBJECTION IN THE WSD
The remark that failing to so plead the preliminary objection in the
written statement of defence does not, in my opinion, prohibit a
party from raising the point was made in the Tororo Cement Co. vs.
Frokina International Ltd. case.
In cases where there are both legal and factual issues in a single
lawsuit, and the court believes that the case, or a portion of it, can
be resolved solely on legal issues, it will address those issues first.
As a result, the resolution of factual issues may be delayed until the
legal issues have been decided.
Under O.6 r 2910 If in the opinion of court the decision of point of law
substantially disposes of the whole suit or any distinct cause of action,
ground of defense or setoff, counter claim or reply therein court may dismiss
the suit or make such order in the suit as may be just.

Order.6 r 3011, any party to a suit may apply to strike out any pleading on
the ground that it discloses no reasonable cause of action or answer or that
the suit or defense is frivolous or vexatious. Order 6 r 17 and Article
12612prohibit raising of technical preliminary objections to any pleading on
ground of alleged want of form or otherwise. The preliminary objection
should be on ground of substance rather than form.

In the case of Kasirye Byaruhanga & Co. Advocates V UDB13

(unreported) where it was held that “...a litigant who relied on the provisions
of article 126(2) (e) must satisfy the court that in circumstances of the
particular case before the court it was not desirable to have undue regard to
a relevant technicality.”

The book "ODGERS" also covered preliminary objection on page 147,

which states, "Either party may object to the opposite party's
pleadings on the ground that it does not set forth a sufficient ground

10
Civil procedure rules
11
Civil procedure rules
12
1995 constitution of Uganda
13
S.C.C.A No. 2 of 1997

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of action, defense, or reply, as the case may be." The writers of
Odgers (previously on page 147) note that the main reason for
preserving an objection in point of law was to prevent parties from
spending a lot of money on factual disputes that, even if resolved,
would not affect their legal rights.

that the aforementioned knowledgeable authors have provided a

clear explanation for this as well.

The first justification is that "it is better for the Defendant that the
Plaintiff should be driven to such amend the trial if the Defendant
succeeds, and the Plaintiff obtains leave, upon paying the costs of
the argument, to amend his statement of claim."

Second, it is not fatal to not raise the objection at the start of the
trial. "You need not be afraid that, by omitting to apply, you are
throwing away chances of success that the objection, if not taken at
once, cannot be taken afterwards," the wise writers continued.

This argument is aptly shown by those two English situations. In the

first, Sir Edward Coke14 held that "when the matter in fact will clearly
serve your client although your opinion is that the Plaintiff has no
cause of action, take heed that you do not hazard the matter upon a
demurrer, in which, upon the pleading and otherwise, more perhaps
will arise than you thought of; but first take advantage of the
matters of fact, ad ultimum, and never at first demur in law when,
after the trial of the matters in fact, the matters in law (as in this
case it was) will be saved to you."(strong emphasis)

The whole claim may be disposed off. In James Katabazi and 21 Others v
The Secretary General of The East African Community and The
Attorney General of The Republic of Uganda 15 (unreported).it was
stated that A preliminary objection should be made if the party so raising it
is convinced that when raised the objection so raised will dispose of the
whole claim and thus save the parties expense and embarrassment in trying
facts that will not determine the rights of the parties.

14
https://www.britannica.com/History-Society 7:22pm
15
https://www.eacj.org/?cases=james-katabazi-and-21-other-vs-secretary-general-of-the-east-african-community-
and-attorney-general-of-the-republic-of-uganda 7:23pm

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In summary, as was mentioned in the case of Tororo Cement Co.
vs. Frokina International Ltd., the defendant may raise a
preliminary objection at the beginning of the lawsuit even though it
is not pleaded in the witness statement of defense. This will save
both the court and the parties involved time.

REFERENCES

1. The 1995 Constitution of Uganda

2. Civil Procedure Rules
3. Civil Procedure Act cap 71
4. Book of ‘ODGERS’ Principles of Pleadings and Practice in Civil Actions in
the High Court of Justice
5. Case law
6. Civil procedure and practice by Ssekaana Musa and Salima Namusobya
Ssekaana
7. https://www.mariam-website.com

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