|
THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISC. APPLICATION NO. 0569 OF 2000
CIVIL SUIT NO. 207 OF 2000
VINCENT ORIBI ] PLAINTIFF/RESPONDENT
VERSUS
BRITISH AMERICAN TOBACCO ] DEFENDANT/APPLICANT
BEFORE: HONOURABLE JUSTICE J.B.A KATUTSI:
RULING:
This is an application by chamber summons brought under the
provisions of 0.7 rule and 19 of the Civil Procedure Rules seeking
orders that: -
a) The plaint be rejected;
b) That the applicant/defendant be granted the costs of the
application and the main suit;
It is supported by an affidavit of Richard Wejuli stated to
be the Company Secretary of the applicant.
There are three grounds advanced. There are: -
a) The plaint is time barred;
b) The plaint does not disclosed a cause of action and
c) The plaintiff's suit is frivolous or vexatious.
Mr. Byenkya assisted by Mr. Kihika appear for the applicants
in court enlarged on the grounds. Mr. Lwere for the second defendant
concurred. Mr. Alenyo learned counsel for the respondent/plaintiff
replied.
In this ruling I will follow the order adopted by learned
Counsel in arguing the application. That is beginning with the
last ground of the application.
It is contended for the applicant that the plaint is frivolous
or vexations. For this argument the applicant seeks reliance
on the maxim of the law "volent non fit injuria". A
close reading of the plaint shows that before reading the caution
inscribed on the defendants' products, plaintiff was not a cigarette
smoker. To use his own words: -
"As a result of the said misrepresentation" health
caution, the plaintiff was persuaded to start smoking which persuasion
was foreseeable by the first and second defendants".
Mr. Byenkya with whom Mr. Lwere agrees, says this is a situation
warranting the full application of the maxim of law above. Indeed
it is plain from the plaint that before reaching the caution
on defendants products, plaintiff was not a smoker. He says he
was persuaded to smoke by the caution. It appears he is a man
of more guts than brains. But does that mean that his plaint
is frivolous or vexatious per see?
The maxim of the law is volent non fit injuria and not scient
non fit injurua. It means this: "that to which a man consents
cannot be considered an injury". In other words. "No
act is actionable as a tort at the suit of any person who has
expressly or impliedly assented to it". The question is
not whether he knew of the danger, but whether infact he agreed
to run the risk, in the sense that he exempted the applicants
from their duty not to create danger by the products, and agreed
that of injury happened the loss should be on him and not on
the applicants whose products were cause of his loss. If the
danger was so great that it was a foolhardy and unreasonable
act to expose himself to it, then he did so at his own costs.
I think with respect these are matters for the trial. At this
stage it would be presumptions to say that the plaint is frivolous
or vexatious. It is true that an order striking out a plaint
as being frivolous or vexalous should be made only where it is
obvious that the claim or defence is devoid of all merit or cannot
possibly succeed. In my opinion the third ground of objection
must fail.
The second ground is that the plaint does not disclose a cause
of action. It is argued that the claim is grounded on a misrepresentation
when in fact there was not misreprentation. It is said what plaint
is complaining of having got as a result of smoking respondents
products is exactly what he and been warned against.
It is trite that a non-disclosure of a part of the truth may
make a statement of the residue positively false. In PEEK V.
GURMEY (1873) LR. G.H.L LORD CHELMS FORD said: Half truth, will
some times amount to a real falsehood". About eleven years
later in ARKWRIGHT V. NEW BOLD (1881) 17 Ch.D. 301 JAMES, LJ
said. "Every word may be true, but if you leave out something
which qualifies if you make a false statement".
Active concealment of a fact is equivalent to a positive statement
that a fact does not exist. Plaintiff in his plaint states positively
that the caution as appears on defendants products is a misrepresentation.
I would not give his mouth at this state. Let him prove it at
the trial if he can. The second ground of objection fails. Lastly
it is argued that plaintiff's suit is barred by limitation. This
appears to stem from plaintiff's ascertain I paragraph 5 (1)
of his plaint that: -
1) The plaintiff is a smoker of the first defendant's "sportsman"
a cigarette brand since March, 1985 and of the second defendants
supermatch cigarette brand since July, 1999."
In his reply to first defendants written statement of defence
respondent by paragraph 22 item of states.
"Paragraph 22 of the written statement of defence is
deemed and in reply the plaintiff shall plead that his suit is
not time barred by limitation as it arose and time when he discovered
fraud, mistake in the said "health caution in Uganda vis
a viz other health caution of United States of America and United
Kingdom which were now available in Uganda since cigarette trade
had now been liberalized. This occurred in November, 1999."
A careful reading of his plaint shows that he avoids mentioning
when he realized a deterioration of health conditions which his
medical doctors have attributed to body organ destruction related
to cigarette smoking. Non-disclosure has not been made a subject
of objection. At this state working at the plaint alone I am
unable to say that plaintiffs action is time barred. Coverts
exist so that citizen's can address their grievances there. Let
respondent be heard on merit. If the evidence discloses that
his action is time barred, the law will take its course. I would
dismiss the application with costs.
J.B.A. Katutsi
JUDGE
24/11/2000
24/11/2000
Byenkya for applicant
Respondent absent
Ruling issued.
J.B.A Katutsi
JUDGE
24/11/2000 |
