THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLANEOUS APPLICATION NO. 0678 OF 2000
[FROM H.C.C.S. NO. 465 OF 2000]
THOMAS OKUMU ] PLAINTIFF/RESPONDENT
VERSUS
B.A.T. AND MASTERMIND TOBACCO LTD. ] DEFENDANTS/APPLICANTS
BEFORE: - HONOURABLE JUSTICE J.B.A. KATUTSI
RULING
This is an application by chamber summons brought under the
provisions of Order 7 Rule 11 of the Civil Procedure Rules seeking
orders that:
a) the plaint be rejected.
b) in the alterative plaintiff do correct the valuation of
the relief claimed and pay the requisite fees within a time fixed
by the Court failure of which the plaint should be rejected.
c) Further in the alternative, the plaintiff do pay the requisite
filing fees based on the amount stated in the plaint within as
time fixed by the Court failure of which the plaint should be
rejected.
d) Costs of the application and the main suit be provided
for.
The application is based on the following grounds;
a) It appears from the statement in the plaint that the suit
is barred by law
b) The plaint does not disclose a cause of action
c) The plaintiff has undervalued the subject matter of the
claim.
d) The plaintiff has not paid the requisite filing fees commensurate
to the stated value of the subject matter.
The application is supported by an affidavit of Richard Wejuli
Wabwire stated to be an Advocate of this Court and Company Secretary
of the applicant company. In Court Mr. Byenkya assisted by Mr.
Kihika Oscar for the applicant enlarged to the grounds. Mr. Alenyo
for the respondent replied.
Order 7 Rule 11 under which the application is brought provides
as follows: -
ii) The plaint shall be rejected in the following cases: -
a) Where it does not disclose a cause of action.
b) Where the relief claimed is under valued and the plaintiff,
on being required by the Court to correct the valuation within
a time fixed by the Court, fails to do so.
c) Where the relief claimed is properly valued but an insufficient
fee has been paid, and the plaintiff on being required by the
Court to pay the requisite fee within a time be fixed by the
Court, fails to do so.
d) Where the suit is appears from the statement of the plaint
to be barred by any law.
e) Where the suit is shown by the plaint to be frivolous or
vexations.
It is clear to me that grounds (c) and (d) of the application
are prematurely brought to the Court. Their inclusion in the
application amount to an abuse of Court process. I will in this
ruling therefore restrict my consideration to grounds (a) and
(b) of the application.
I must confess that I find the plaint to contain matters that
are novel as they are bizarre. Thus the plaint talks of "STRICT
PRODUCT DEFECT" and the like but that is a by the way. Going
to the last ground of objection the first paragraph of the plaint
states: -
"The plaintiff brings this suit as a class action and
as a bonafide suit within the meaning of the civil procedure
act and the suit is brought by the plaintiff on his own behalf
and bonafidely for collective rights of the following classes:
-
i) All nicotine dependent persons (addicts) to cigarette smoking
in Uganda who have purchased and smoked cigarettes manufactured
by the first and or second defendants.
ii) The estates, representatives, next of friends, next of
kin and administrators of the above current, former and future
nicotine dependents (addicts).
iii) Heirs and survivors of nicotine dependants
iv) All current cigarette smokers.
Mr. Byenkya with Mr. Kihika Oscar for the applicants/defendants
say this is a representative action. Mr. Alenyo for the respondents/plaintiff
says, "Hold on. This is not a representative action. It
is a public interest suit. What is sought here is a public relief
for a public right that has been violated". My task I think
I cannot do better that first exploring the attributes of a representative
action. Where there are numerous persons having the same interest
in proceedings. The proceedings may begin and continued by or
against any one or more of them representing all. This is what
I understand to be "a representative action". Put in
another way all persons who have a common right which is invaded
by a common enemy are entitled to join in attacking that common
enemy in respect of that common right. In DUKE OF BEDFOR V. ELLIS
(1901) ACT at P7 LORD MAC NIGHTEN said:
" In considering whether a representative action is maintainable
you have to consider what is common to the class not what differentiates
the cases of individual members" At P8 he again said: "Given
a common interest and a common grievance, a representative suit
was in order if the relief sought was in its nature beneficial
to all whom the plaintiff proposed to represent". In the
plaint the subject of this application, plaintiff has listed
classes of people with a community of interest. In deed in his
plaint he plainly sates "The plaintiff brings this suit
as a class action" And now he says that his plaint does
not share the attributes of a representative action. With the
greatest respect I cannot accept the argument. I would here re-echo
what was said in the Constitutional Court in the Petition of
DR. RWANYARARE & ANOTHER, V ATTORNEY GENERAL - Petition 11/97.
"We cannot accept the argument of Mr. Walubiri that any
spirited person can represent any group of persons without their
knowledge or consent. That would be undemocratic and could have
far reaching consequences.
If plaintiff wished to put his philanthropic ideas in motion,
he should have complied with Order 1 Rule 8 of the Civil Procedure
Rules, and now that he did not, he must put his legal activism
on hold. The first objection succeeds. On the second leg of objection
Mr. Byenkya argued that plaintiff placed reliance on the National
Drug Policy and Authority Statute as a basis of his case. In
deed by paragraph 3 of his plaint this modern Alice in the Wonderland
stated
"7. The facts giving rise to this cause of action arise
as follows: -
i) Plaintiff is a smoker of the first defendants "Sportsman"
cigarette brand since March 1985 to 1999 changing to "Embassy"
ii) The plaintiff is a smoker of the second defendant's "supermatch"
cigarette brand since July 1999.
"8. As a result of consuming the above products the plaintiff
developed chest pains which were subsequently diagnosed as lung
cancer.
"9. The plaintiff avers that the disease that he contracted
were accessioned by the defective nature of the defendants cigarettes
and marketing malfactions as following in these particulars".
In my humble opinion the inclusion of paragraphs 3 and 4 of
the plaint which introduces the National Drug Policy and Authority
Statute was idle. There was an attempt to argue that the suit
was caught by the limitation act. Since I have already decided
that the suit was barred by law I need not express an opinion
on this. The sum total of my ruling is that the first ground
of the application succeeds. The second, third and fourth grounds
of the application fail. Applicant is entitled to a third of
the costs of this application. An order that the plaint be struck
off for failure to comply with the provisions of Order 1 Rule
8 of the Civil Procedure Rules is here by made with costs to
the defendants. I so order.
J.B.A. KATUTSI
JUDGE
24/11/2000
24/11/2000
Byenkya for the first applicant.
Lwere for the second defendant represented by Byenkya
Respondent's Counsel absent
Ruling Read.
J.B.A. KATUTSI
JUDGE
24/11/2000 |
