Mushi, J.: This is a ruling with regard to a preliminary legal point raised by Mr. Jonathan learned counsel for the defendant to the effect that the plaint does not G disclose a cause of action and thus it should be struck out with costs to the respondent.
Earlier on the learned counsel had successfully moved this court to rule in his favour upholding two preliminary legal points. On 13/7/1990 this court ruled and ordered, I quote:
H It is hereby ordered that the plaintiff file an amended plaint listing all the plaintiffs or alternatively omitting the word "others" from the plaint. The tort of malicious prosecution should also be pleaded in the plaint. I
An amended plaint was accordingly filed by the learned counsel Mr. Maruma for the A plaintiff. The learned counsel for the defendant under paragraph No. 15 of the written statement of offence to the amended plaint stated and I quote:
B The defendant at the hearing will urge and pray that the suit be struck out with costs.
This is what the learned counsel did when the case was called up for hearing. In short the learned counsel stated that the plaintiff had not fully complied with the directions of the Court in the earlier ruling. The learned counsel stated that the court directed that C the tort of malicious prosecution should be specifically pleaded in the plaint but this has not been done. The learned counsel said that the fact that relief for malicious prosecution is claimed in the relief, that fact does not amount to pleading the tort of malicious D prosecution as a cause of action. Mr. Maruma, learned counsel for the plaintiff, did not directly state that he had infact fully complied with the directions of the court. The learned counsel stated, and I quote from his arguments:
E There have been efforts to comply with the Court Order of 13/7/1990. The paragraphs containing the cause of action are contained in paragraphs 4,8,9 & 11 of the amended plaint.
F - Paragraph 4 states that the complaint by the defendant was false.
- Paragraph 8 - it is contended that had no reasonable or probable cause.
The two paragraphs read together do connote that such complaint must have been G actuated by malice.
Paras 9 & 11:
Complaint led to the arrest of the plaintiff and seizure of the bus resulting to losses and injury to his person. The pleadings clearly indicate clear cause of action. It is not H necessary to use the actual words - malicious prosecution.
Lastly the learned counsel said that courts have discretion to allow the amendment in order that the plaint may disclose a cause of action and her implored the court and I said:
A If however it is found that it is necessary to use the specific words - malicious prosecution in the plaint, I will readily comply with the direction.
First I respectfully agree with the learned counsel for the defendant that the plaintiff has B not complied with the direction on the court in the earlier order with regard to none disclosure of a cause of action. The paragraphs in the amended plaint which the learned counsel for the plaintiff said can be construed to amount to pleading malicious prosecution have the same contents as in the plaint. Nothing has charged. The only C noticeable change is the inclusion of the clause malicious prosecution in the relief paragraph - 15 (e). Relief is not a cause of action. Relief must stem from cause of action. The problem which is being complained of is not the necessity or not of using the specific words malicious prosecution as stated by the learned counsel but whether the D wrong which is the subject of the pleadings has been distinctly pointed out. In other words what would be the answer to this question:
E what is the wrong which is being complained of in these pleadings?
The answer to this question will constitute the cause of action. It could be wrongful confinement, breach of contract, defamation, and so forth. All I can read from the plaint is a set of facts which, though, read together may or may not amount to a specific F tort. It is not for the defendant to figure out from the plaint the possible wrong complained of. It is for the plaintiff to make it absolutely clear in the plaint what the cause of action is so as to enable the defendant to file a proper defence. I am satisfied therefore that the plaint does not disclose a cause of action. G
The question is what should this court do. There are two options which are open to the court. The first are in to strike out the plaint as prayed by the counsel for the defendant. The other option is to order an amendment to the plaint to disclose a cause of action if possible as prayed by the counsel for the plaintiff. The second option has already H been extended to the plaintiff in a earlier ruling dealing with the same legal problem. The counsel for the plaintiff did not comply with the direction of the court and no reasons have been given for such inaction. Similarly there are no reasons for the court to exercise its discretion further in favour of the plaintiff for the same point for the second I time. It is my considered opinion that
in the absence of exceptional circumstances, any further exercise of discretion in A favour of the plaintiffs to amend the plaint so as to disclose a cause of action will not be a judicial discretion. The only option left, therefore is to strike our the plaint. The plaint is accordingly struck out for not disclosing a cause of action. The defendant will have his costs. B
Plaint struck out.
C
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