Joshi v Uganda Sugar Factory (Criminal Appeal No. 16 of 1968) [1968] EACA 8; (11 July 1968)

11 July 1968

Criminal Appeal No. 16 of 1968

COURT OF APPEAL FOR EAST AFRICA

NARMADASHANKER MANISHANKER JOSHI

v.

UGANDA SUGAR FACTORY LIMITED JUDGMENT

BEFORE: VICE-PRESIDENT: De Lestang JUDGES OF APPEAL: Spry; Law

Represented By:

Editor's Note: Appeal from a ruling and order of the High Court of Uganda at Kampala (Saldanha, J.) dated 7th February, 1968 in Civil Case No. 305 of 1967

LAW, J.A.

[1]  This is an appeal against the dismissal by the High Court of Uganda (Saldanha, J.) of an application for further and better particulars of a pleading. The appellant is the plaintiff in a pending civil suit in which he claims damages for personal injuries resulting from a collision between the motor-cycle ridden by him and a tractor and trailer driven by the servant or agent of the defendant company.

[2]  By paragraph 5of the plaint, it is alleged that the accident happened “on or about the 2nd day of February, 1965, at about 7.45 p.m., on a road in Bukolongo Division of the defendant's estate near Lugazi" amongst the particulars of negligence alleged against the defendant's driver are that

“(c) he drove the said tractor or permitted them (sic) to be driven without any effective lighting;

(g) he failed to slow down or to stop when his view ahead was obstructed due to darkness."

[3]  By paragraph 4 of the defence, the defendant admitted that the accident occurred on the day and at the place alleged in the plaintiff but went on to plead "further, the defendant does not admit that the collision occurred at 7.45 p.m. as alleged.” By paragraphs 5 and 6 of the defence it is pleaded that the collision was caused solely, alternatively was contributed to, by the plaintiff's own negligence, which is particularized but without any reference to lights.

[4]  The plaintiff's advocate wrote to the defendant's advocate in the following terms ¬

"I refer to the defence filed herein and I shall be obliged if you will let me have the following

further and better particulars thereof:

Para 4. The defendant denies that the accident took place at 7.45 p.m. I wish to know what time the defendant alleges that the accident took place."

[5]  To this letter the defendant's advocate replied as follows ¬

"It is the plaintiff's allegation that the collision occurred at 7.45 p.m. (paragraph 5 of the plaint). Paragraph 4 of the Written statement of Defence states, inter alia, that the defendant does not admit that the collision occurred at 7.45 p.m. as alleged. The statement in your letter that 'the defendant denies that the accident took place at 7.45 p.m.' is not correct. The plaintiff has made a certain allegation of fact, and it is open to the defendant to say no more than that the allegation is not admitted. In our opinion, it is for the plaintiff to prove his allegation and he cannot call upon the defendant to amplify the non-admission."

[6]  The plaintiff then applied to the High Court by notice of motion for an order that the defendant supply the further and better particulars asked for. n dismissing this application,

Saldanha J. said¬

"The plaintiff's task has been facilitated by the defendant's admission of the Collision and the date on which it occurred. That it occurred at 7.45 p.m. is not admitted an the plaintiff must therefore prove it and the defendant is under no obligation to state the time at which he alleges the collision occurred."

[7]  From this decision the plaintiff now appeals. Mr. Hunt for the plaintiff /appellant has made a number of submissions. The first is that there is no difference between a refusal to admit an allegation, and a denial thereof and he relies on a dictum to this effect by Grove J. in Hall v.London and North-Western Railway Co. . (1877) XXXV L.T. 848.

[8]  Secondly, Mr. Hunt submits that, reading the pleadings as a whole, time is a material factor in this case. The plaintiff has claimed that the accident occurred in the hours of darkness, and that it has caused inter alia by reason of defective lighting on the defendant's vehicle. By admitting the date and place of' the accident, but denying that it occurred at 7.45

p.m. when it was dark, the defendant in Mr. Hunt's submission must be taken to be asserting that the accident took place at a time when it was not dark, and in those circumstances the plaintiff is entitled to particulars as to the time when the defendant alleges that the accident took place.

[9]  Thirdly, Mr. Hunt submits that the object of pleadings is to prevent either party being taken by surprise at the trial, and to enable the parties to know what case they have to meet.

He relies on Order 6 rule 9 which reads as follows: ¬

"When a party in any pleading denies an allegation of fact in the previous pleading of the opposite party, he must not do so evasively, but answer the point of substance. Thus, if it be alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if the allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances."

[10]  Mr. Hunt submits that the defendant's pleading in this case is evasive. In admitting the date and place of the accident, but not admitting the time, the defendant is in effect alleging

that the accident took place at a different time, and he should be made to give particulars of this allegation.

[11]  Mr. Dholakia for the defendant/respondent submits that all that the defendant has done is to traverse the plaintiff's statement that the accident took place at 7.45 p.m. and put him to proof of that allegation. A traverse of a positive allegation does not constitute an assertion of fact, and a defendant cannot be ordered to particularize the mere non-admission of a pleaded fact. This is not a case of a traverse of a negative averment, which might involve an affirmative allegation (Pinson v. Lloyds Bank (1941) 2 All E.R. 636).

[12]  Mr. Dholakia also submits that a defendant should not be required. To disclose particulars of the circumstances of an accident which he 113,s admitted did take place, and he relies in this respect on Fox v. H. Wood (1962) 3 All E.H. 1100, and submits that the time at which an admitted accident occurred is one of its circumstances.

[13]  I may say at once that I disagree with this submission. It is clear from the judgment of Diplock L.J. in Fox's case, with which the ether members of the court agreed that by the circumstances of the accident he meant how and not when it happened.

[14]  Mr. Dholakia also relied on the judgment of Pennyquick,J. in Chapple v. Electrical Trades Union (1961) 3 All E.H. 612, in which the learned judge cited with approval the notes to Order 19 rule 6 R.S.C. In the Annual Practice, 1961, and in particular this extract there from ¬

"Traverse by defendant. A traverse by a defendant even of a negative allegation which the plaintiff must establish in order to succeed is not matter stated of which particulars will be ordered, But particulars may be ordered where the traverse involves a positive allegation."

[15]  I am content to accept the above as a correct statement of the law on the subject with which this appeal is concerned. The answer in this appeal depends in my view on whether the defendant's refusal to admit the plaintiff's assertion that the accident occurred at 7.45 p.m., and therefore in the hours of darkness, implies a positive assertion on the art of the defendant that the accident occurred at a time other than in the hours of darkness.

[16]  I agree with Mr. Hunt that there is no effective (difference between a refusal to admit a fact and a denial of that fact. The exact time at which an accident occurred is not normally of material importance, but it is material in this case in view of the allegations of negligence in relation to light.

[17]  The fact that the defendant has gone out of his way, whilst admitting the date and place of the accident, to deny the time of its happening, raises to my mind a strong interference that the defendant considers the time of the accident to be a material factor in this case.

[18]  It would be material if the time contended for by the defence is a time during the hours of daylight, in which case those allegations of negligence relating to lights and to failure to stop because of darkness would fail. If in fact the defendant will contend at the trial that the accident occurred in the hours of daylight, then I consider that the plaintiff is entitled to be so informed, in order not to be taken by surprise.

[19]  In Thorp v. Holdsworth (1876) 3 Ch.D. 637, the defendant pleaded as follows ¬:

“The defendant denies that the terms of the arrangement between himself and the plaintiff were definitely agreed upon as alleged"

[20]  Such a denial was held by Jessel M.R. to be evasive, under Order XIX rule 12 R.S.C. as it was then expressed, which was in identical terminology with that of Order 6 rule 9 of the Uganda Civil Procedure Rules. As the Master of the Rolls commented "it is the very object we have always had in pleading to know what the defendant's version of the matter is in order that the parties may come to an issue". In my view the position in this appeal is comparable.

[21]  To say in a defence that it is not admitted or that it is denied, that an event took place at the time alleged in the plaint is in my opinion an evasive plea within the meaning of Order 6 rule 9, especially when time as in this case may well be a material factor. If the defendant is contending that the accident took place at a time other than "at about 7.45 p.m." as pleaded in the plaint, then to comply with Order 6 rule 9 he should specify the time for which he contends.

If he is not so contending, he should not have traversed the allegation as to time. I consider that the plaintiff is entitled to know what the defendant's version is in relation to time of the accident, which has been put in issue by the defendant.

[22]  I would allow this appeal.

SPRY, J.A.:

[23]  I have had the advantage of reading in draft the judgment of Law, J.A., in which are set out the facts giving rise to this appeal and I do not think it necessary to repeat them in full. Briefly, the position is that the appellant has averred that an accident took place at a particular time and place. The respondent company has admitted that the accident occurred and the place where it occurred but has refused to admit the time. The appellant claims to be entitled to further and better particulars, that is, he claims to be entitled to know at what time the respondent company alleges the accident took place.

[24]  The High Court refused an order for particulars and the appellant now appeals to this Court. The appeal turns on four rules of the Civil Procedure (Revised) Rules, 1948.These are rules 3, 3A, 7 and 9 of Order VI. Rule 3 provides for the ordering of further and better particulars; rule 3A provides that an allegation of fact in any pleading if not specifically denied, is to be taken to be admitted; rule 7 provides that every allegation of fact must be dealt with specifically by a defendant; and rule 9 provides that a denial must not be evasive.

[25]  The general principle is, I think; set out in the judgment of Astbury, J., in Weinberger v.

Inglis (1916-17) All E.R. Rep. 843, when he said¬

"As a general rule, the court never orders a defendant to give particulars of facts and matters which the plaintiff has to prove in order to Succeed, and this is especially the case where a defendant has confined himself to putting the plaintiff to the proof of allegations in the statement of claim, the onus of establishing which lies upon him."

[26]  Looking at the matter on the simplest footing, the appellant has made certain allegations which he must prove to succeed. The respondent company has made his task somewhat easier by admitting certain of those allegations but the onus remains on the appellant to prove those

that are not admitted.

[27]  The court will, however, order a defendant to furnish particulars where he is making positive averments and will also exercise its discretion to order particulars where it believes that by so doing it will narrow the issues and avoid surprise, and so reduce expense.

[28]  It has been suggested that in refusing to admit (which, I agree, is for all practical purposes the same as denying) that the accident occurred at 7.45 p.m., the respondent company is, in effect, asserting that it occurred at some other time, and that, since the plaint contains reference to a vehicle not having "any effective lighting" and to the view being obstructed by "darkness", it may be assumed that what he is asserting is that the accident occurred in day light. I am not persuaded by that argument. Of course, in a sense, just as a coin has an obverse and a reverse, so every negative can be expressed as a positive, but the question, as I see it, is not whether a denial could have been expressed in a positive way, but whether the defendant's intention is merely to deny or to set up a positive case in contradiction. A defendant is perfectly entitled, if he wishes, to adopt an entirely negative attitude, putting the plaintiff to proof of his allegations, and if he does so, the plaintiff cannot, by asking for particulars, compel him to make positive assertions.

[29]  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 different footing, or at least only on terms (Weinberger v. Inglis, supra; Pinson v. Lloyds & National Provincial Foreign Bank, Ltd. (1941) 2 All E.R. 636).

[30]  Again, I cannot say that there is likely to be any question of surprise. The appellant has averred, and presumably believes he can prove, that the accident occurred at about 7.45 p.m. He has been given notice that that allegation will be challenged. If the allegation is material, and it would appear that both sides think it is, the appellant will call all the evidence he can to prove it.

[31]  I cannot see that he is in any way handicapped in the preparation of his case. It is possible that there may be some extraordinary development at the trial, but the court has a discretion to allow rebutting evidence to meet any such situation, and for this purpose may, if necessary, grant an adjournment, making any appropriate order as to costs. There remains the question whether the denial can be said to be evasive. At first sight, there might seem an analogy with the example given in rule 9.

[32]  If it is averred that a defendant received a certain sum, it is evasive merely to deny the receipt of that sum. The defendant must either say what sum he received, or that he received nothing.

[33]  On consideration, however, I do not think the analogy a good one. A denial by a defendant that he has received, say, £50, is, on the face of it, a denial of liability and it is obviously misleading to the plaintiff and to the court if he had in fact received £49. Here, however, the issue is one of negligence and that is clearly denied. The time when the accident occurred is not a primary issue. It may, or may not, be of importance in assessing the evidence of negligence.

[34]  It is true that the appellant has referred to "darkness" in his plaint but only in the particulars, and a defendant is not required to plead to particulars (Chapple v. E.T.U. (1961) 3

All E.R. 612).

[35]  In my opinion, the denial was not evasive. For the reasons I have given, I think the learned Judge was right in refusing to order particulars and I would dismiss the appeal.

DE LESTANG V-P.:

[36]  The facts giving rise to this appeal are fully stated in the judgment of Law, J.A. and I will not repeat them. Suffice it to say that the appellant, who was the plaintiff in the court below, averred in his plaint that the accident on which his claim was found occurred at

7.45.p.m. on the day and at the place stated. The respondent admitted that the accident had taken place on the date and at the place stated but did not admit that "it occurred at 7.45.p.m. as alleged". As the appellant's case is partly founded on the accident having occurred in darkness, the time is clearly a material factor in the case. I do not think also that there is any material difference between a non-admission and a denial.

[37]  It is contended for the appellant that in these circumstances the respondent's defence is evasive and that unless he gives particulars of the time when the accident occurred the appellant would be taken by surprise at the trial if it were sought to prove that it occurred in daylight.

[38]  I cannot see any merit in the latter contention. Surely it is for the appellant to prove his case and he knows that time is in issue. I fail to see how in these circumstances he can say that he would be taken by surprise on the matter of time.

[39]  As regards the allegation of evasiveness, a denial in the form in which it was made in this case is an extremely common form of pleading and does not seem to me to be embarrassing as it makes it quite clear that time is in issue. The Civil Procedure Rules of Uganda on the subject of particulars are not materially different from the rules of the Supreme Court in England and consequently guidance may be obtained from the decided English cases.

[40]  In Fox v. H. Wood (Harrow) Limited, (1962) 3 All E.R. 1100, a workman put his foot in a hole in the floor at his place of work; he fell and was injured. In an action by the workman against his employers for damages for negligence, the defendants, by their defence, alleged contributory negligence and pleaded "it is admitted that the plaintiff suffered an accident on the date referred to in the statement of claim during the course of his employment, but no admissions are made as to the circumstances of the alleged accident."

[41]  The plaintiff applied for particulars of the accident admitted and for a description of it, saying when and where it occurred. It was held by the Court of Appeal that the defendants should not be ordered to give particulars of the accident admitted.

[42]  I cannot distinguish the present case from that case, and I would, with respect, endorse what Diplock, L.J. said in it.

"I might add that the only effect of permitting particulars to be given where the pleading is in this form would be to dissuade defendants from making such admissions as they can to limit the issues at the trial."