BISHOP STUART UNIVERSITY

Qn. 1

What is a cause of action? Discuss giving examples with reference to decided cases.

A cause of action as the fact or combination of facts which give rise to a right of action 1. This
definition is in parimatiria with what Musa Ssekaana captures in chapter 3 of his book 2.
Additionally, In Auto Garage Vs Motor Kov3a cause of action was defined to mean “…in
addition, the Plaintiff must appear on the right that has been violated and the defendant is
the person liable, if the plaint shows that the plaintiff has a right, has been violated and that
the defendant is liable.” This position was re-emphasized in the case of Kebirungi Vs Road
Traders Ltd & Ors4

According to the celebrated case on this subject; Auto Garage Vs Motokov 5, there are three
essentials to support or sustain a cause of action;

(a) The plaintiff enjoyed the right

(b) The right has been violated
(c) The defendant is liable

It is imperative to note that if any of these three essentials is missing, the plaint is a nullity
and ought to be struck off. Priamit Enterprises Ltd Vs Attorney General6

Also, if an essential element of a tort is not pleaded, then the case does not disclose a cause of
action. This was enunciated by court in the case of Mukibi Vs Bhavasa7

1
Halsbury Laws of England 3rd Edn Volume 12
2
Civil procedure law and practice in Uganda
3
(1979) EA 514
4
(2008) ULR 329.
5
ibid
6
SCCA No.1 of 2001.

7
(1967) EA 473
Cause of action in civil matters

Under Civil litigation, one of the salient features of a valid plaint is that it should be able to
disclose a cause of action.

Order. 7 r 11(a)8 provides that a plaint shall be rejected where it does not disclose a cause of
action. A plaint without a cause of action is nothing as there is no basis or locus for such a
party to be before court in the first place.

O.6 r 30 (1)9 provides that; “the court may, upon application, order any pleadings to be
struck out on the ground that it discloses no reasonable cause of action or answer and, in
any such case, or in case of the suit or defence being shown by the pleadings to be frivolous
or vexatious, may order the suit to be stayed or dismissed or judgment to be entered
accordingly, as maybe just.”

Cause of action has been held from the earliest time to mean every fact which is material to
be proved to entitle the plaintiff to succeed-every fact which the defendant would have a right
to traverse. Cooke V Gill10 and also emphatically put by court in Uganda Aluminium Ltd V
Restuta Twino Mugisha11 and Tororo Cement Company Ltd Vs Fronkina International
Ltd12

According to the case of Sullivan Ali Muhammed Ousman13, a plaint which does not
disclose a cause of action must be rejected

Court in the case of Hussein Dharamshi Vs National Bank of India14, a plaint which does
not disclose a cause of action cannot be amended.

To determine whether or not a plaint discloses a cause of action, the court must look only at
the plant and its annexures if any, and nowhere else. Kapeeka Coffee Works Ltd & Anor
Vs NPART15. Where Court considers irrelevant matters in rejecting a plaint as disclosing no

8
Civil Procedure Rules S.I-71
9
ibid
10
(1873) LR 8CP 107 at 116
11
CACA No.22 of 2000
12
CACA No. 21 of 2000 (UR)
13
(1959) EA 239
14
(1937) EA 55
15
CACA No.3 of 2000
cause of action, it shall be set-aside on appeal. Mulindwa Birimumaso Vs Government
Central Purchasing Corporation16

Joinder of causes of action

Save as it may be otherwise provided, a plaintiff may unite the same several cause of action
against the same defendant or the same defendants jointly; and any plaintiffs having causes of
action in which they are jointly interested against the same defendant or defendants jointly
may unite such causes of action in the same suit. Order 2. r217. This position was given force
in the case of Josephat Mutungi Vs Ndugu Kabuki & Anor18

The joinder of causes of action not only has an effect on reducing the number of actions but
also on who should be parties to an action. The rules provide for joinder of causes of action
with the right of the court to order separate trials if necessary. Order 2 r 519

A plaintiff may join in an action more than one cause of action and when the defendants
contest the joinder of any cause of action, the plaintiff must justify the joinder or else the
objection to this joinder will be upheld by court. Order 2 r 620. An example where the
plaintiff had two causes of action properly brought before court’s personal action by which he
sought court’s protection of his pecuniary interest in the company and a directive action by
which he sought court’s protection for the good of the company generally against waste by
the directors. Christopher Kayoboke Vs Amos Agaba & Ors21

There are principles that have been laid down by courts of law as are applicable to joinder of
causes of action and these include some of the following;

(a) Trial of several causes of action in an action

16
CACA No.3 of 2002.
17
Refer to footnote 8
18
(1966) EA 454

19
Civil Procedure Rules S.I-71
20
Ibid
21
HCCS No.630 of 1991
 Where there are several causes of action, the court may order separate trials in respect
of certain claims or that the trial judge determine which issues are to be tried by the
Judge and the discretion of the judge will prevail unless he acted on a mistake of law
or there is a clear case justifying the court inferring Re Martins 22
(a) Refusal of joinder of causes of action
Joinder of causes of action should not be permitted if they cannot be disposed of
conveniently in one action or their joinder would be considered too oppressive.
(b) Plaintiff with different causes of action
Different plaintiffs may have different causes of action against the same defendant.
This is generally permitted under the rules where the causes of action arise in respect
of the same transaction or series of transactions or where the court authorises the
joinder. The joinder is discretionary with court.
(c) Cause of actions with different defendants

Where a plaintiff has different causes of action, the court may provide for
compensation to any defendant for being required to attend, or a defendant may be
relieved from attending any part of a trial in which he has an interest. The court may
also hold that the joinder of causes of action or parties improper23.

(d) Entirely separate causes of action to be refused as joinder

Entirely separate causes of action against a defendant cannot be joined as alternative
claims.
(e) Joinder of joint causes of action
Where there are joint causes of action, the plaintiff may join the wrong doers as
defendants with the plaintiffs claim against one being in contract and against the other
in a claim which is independent of contract.

(f) Trend to encourage Joinder

22
(1882) 20 CHD 365

23
Musa Ssekaana, Civil Procedure law & Practice in Uganda
 The trend of modern jurisprudence is to extend the application of the rules of court to
have all the issues between the parties dealt with in one action and to diminish the
costs of litigation.
(g) Different capacities of parties
Different causes of action may arise out of the fact that a party may sue or be sued in
in different capacities. If one sues personally and as an executor, he is in effect suing
as two separate and distinct persons with cue of action. Bolton Vs Salim Khambi 24

Cause of action in Constitutional matters

In the case of Ismail Serugo Versus Attorney General25 Wambuzi CJ (as he then was) in
his lead Judgment enunciated that a reasonable cause of action on the other hand, has been
described as a cause of action which, in light of the pleadings, has some chance of success:
(See Drummond-Jackson vs. British Medical Association (1970) I WLR 668).

In order to determine if the petition in the instant case discloses a cause or causes of action, it
has to be viewed in the proper perspective. In my view the proper perspective is that the right
to petition the Constitutional Court, so far as is relevant to this appeal, is derived from Article
13726 where it provides, in clause as follows:
“(3) A person who alleges that- any act or omission by any person or authority, is
inconsistent with or in contravention of a provision of this Constitution, may petition the
Constitutional Court for a declaration to that effect and for redress where appropriate.”

A petition brought under this provision, in my opinion, sufficiently discloses a cause of

action, if it describes the act or omission complained of, and shows the provision of the
Constitution with which the act or omission is alleged to be inconsistent or which is alleged
to have been contravened by the act or omission, and prays for a declaration to that effect.
It seems to me, therefore, that a cause of action under Art.137 (3) is not on all fours with the
ordinary cause of action in tort or contract as described in Auto Garage vs. Motokov
(supra). Thus, apart from the drafting requirement, introduced through the Rules under legal

24
(1958) EA 360
25
SCCA No. 2 of 1998/ 1999 UGSC 23 (11 June 1999)
26
The 1995 constitution of Uganada (as amended)
Notice No.4 of 1996, that the Petition be described as “aggrieved,” it is not an essential
element for the petitioner’s right to have been violated by the alleged inconsistency or
contravention. If the framers of the Constitution had intended to vest the cause of action in
only persons aggrieved by such act or omission which is inconsistent with, or in
contravention of any provision of the Constitution, they would have expressly stated so in
Art. 137 (3).
The provision, as it is, gives the right to petition not only to a person aggrieved by, but also
to any other person who alleges, the inconsistency with, or contravention of the Constitution.
Similarly, it seems to me that it is not an essential element to the disclosure of a cause of
action under that article to plead liability of a Respondent, save that where redress is to be
granted against any person, that person would have to be made party. Although the Rules
under Legal Notice No.4 of 1996, and the Form specified in the Schedule thereto, do not
expressly provide for it, there seems to be nothing that would prohibit a person from
petitioning the Constitutional Court “ex-parte” for a declaration under Art.137(3) of the
Constitution.

In the instant case, the petition describes the acts complained of in paragraph 1(a)-(g).
It indicates the provisions of the Constitution allegedly contravened by those acts. And asks
for a declaration to the effect that those provisions of the Constitution were contravened and
secondly for redress.
In my view these averments constitute several causes of action under Art. 137(3) (b) with a
chance of success, at least in respect of the prayer for the declaration.
If the Appellant had been allowed to proceed and had proved those averments or any of them
to be true and correct, he would, on the fact of it, be entitled to the remedy of a declaration.
I find considerable support for this view in the judgment of this Court in Wycliffe Ki
ggundu Kato vs. Attorney-General (supra) which was an appeal against an order of the
High Court rejecting a plaint under O.7 r.11 (a) on the ground that it did not disclose a cause
of action.