Departed Asians Property Custodian Board v Masambu (CIVIL APPEAL NO. 04 OF 2004) [2009] UGCA 65 (26 June 2009)

Full Case Text

#### THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### **CORAM: HON. JUSTICE S. G. ENGWAU, JA** HON. JUSTICE A. TWINOMUJUNI, JA HON. JUSTICE C. N. B. KITUMBA, JA

#### **CIVIL APPEAL NO.04 OF 2004**

#### 15

$10$

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### DEPARTED ASIANS PROPERTY <table> CUSTODIAN BOARD APPELLANT

#### **VERSUS**

#### $20$ <table> DR. J. M. MASAMBU ....................................

$25$

[Appeal from the ruling and order of the **High Court at Mbale (Mwonda, J)** dated $26^{\text{th}}$ August 2003 in HCCS No. 52/2002]

#### **JUDGMENT OF TWINOMUJUNI, JA:** 30

This is an appeal against the ruling of the High Court sitting at Mbale in which the court rejected the appellant's preliminary objection that HCCS No.52 of 2002 be rejected on the grounds that it was time barred.

The brief background to this appeal is that on 8th July 2002 the respondent filed HCCS No.52 of 2002 in which he alleged a number of causes of action, namely, assault, defamation, negligence, fraud and breach of contract all of which were said to have been committed on or before the 19th April 1993. When the case came up for hearing on 20th

August 2003, Mr. Dagira, leamed counsel for the respondent raised a preliminary objection under Order 7 Rule 1l of the Civil Procedure Rules to the effect that the suit was statute barred by section 3 of the Civil Procedure and Limitation (Miscellaneous Provisions) Act. He submitted that under that law, the respondent had to file any claims in tort within two years and in contract within six years from the date the cause of action arose, because the appellant was a Scheduled Corporation protected under S.3(l) ( c) ofthe said Act. In the instant case, the periods of limitation had long expired by the 8s July 2002 when this suit was filed. He prayed that the suit be dismissed under 07.r. 1 I of the Civil Procedure Rules.

In reply, the respondent pleaded disability as provided for under section 5 of the Civil Procedure and Limitation (Miscellaneous Provisions) Act'

- l5 He explained that he instructed his counsel Mr. Emesu to file his suit who did so on l5'h Aprit 1999, which was four days before the limitation date, which was l9m April 1999. That subsequently, he discovered that the suit filed by Mr. Emesu was incompetent where upon he withdrew instructions from Mr. Emesu and filed the instant case on 18th July 2002' - zo In his view, it was Mr. Wegoye and Mr. Emesu who messed him up by failing to file the suit within the prescribed time. He argued that he was a vigilant litigant who should not be punished for the negligence of his lawyers. His case was that the conduct of his lawyers amounted to a disability within the meaning of section 5 of the Act. - 25

In her ruling in which she rejected the preliminary objection, the leamed trial judge relied on the authorities of Sowali Kadimu vs Attornev General tl971l HCB 156 and @ Zirondamu (1980) HCB 11 to hold as follows:

- (a) That the conduct of Mr. Wegoye and Mr. Emesu, counsel for the respondent amounted to a disability to the respondent within the meaning of section 5 of the Act. - (b)That the statute of Limitation ought to be construed strictly so that the rights of a citizen are not taken away to a greater extent than the plain words of the statute. - (c)That article 126(2)(e) of the Constitution enjoined courts to administer justice without due regard to the technicalities and that a citizen's right should not be suffocated by mere technicalities which are handmaidens ofjustice.

The appellant being dissatisfied with this ruling appealed against it on the following grounds:-

- 1. The learned trial judge erred in fact and law when she held that the respondent had pleaded and shown circumstance that amount to disability, - 2. The learned trial judge erred in fact and law when she held that the respondent's suit was not time barred. - 3. The learned trial judge erred in fact and law when she held that the point of law raised by the appellant was a mere technicality which would not be given undue regard. - At the hearing of this appeal, Mr. Suza Dagira represented the appellant and Mr. Nandaha represented the respondent. Both counsel intimated that they had filed written submissions along with their conferencing notes which they wanted to rely on for this appeal. We agreed to study the submissions and to deliver ourjudgment on notice. 75

In the appellant's written submissions, his counsel, Mr. Dagira argued grounds 1 and 2 of the appeal together. He pointed out that all the causes of action alleged in the plaint were in tort and were committed before 19n April 1993. Therefore in his view, the period of two years allowed by the

law within which to file a suit against the appellant, a scheduled corporation, had long expired on 8n July 2002 when this suit was filed. The High Court should have allowed the preliminary objection in respect of all those torts. 5

Regarding the cause of action relating to breach of contract, Mr. Dagira relied on section 3 of the Limitation Act Cap.80 which provides that an action in contract shall not be filed after the expiry of six years from the date when the cause of action arose. He submitted that 9 years had already expired in April 2002 when this suit was filed.

Mr. Dagira also addressed the defence of "disability" which the respondent put up. He submitted that the respondent did not prove that there was a disability. He cited the cases of Sowali Kadium vs Attornev

20 General (suora). Marv Kvam ulabi vs Ahamad Sirondemu su D ra and Makula International 7 Anor. Vs Cardinal Nsubusa & Anor. (1982) HCB ll to support his submission that being messed up by ones 25 own advocate could not amount to a disabitity within the meaning of the law and that statutes of limitation were mandatory and courts had no discretionary powers to depart from their requirement except upon proof of a genuine disability. In his view, no such a disability was shown by

the respondent in this case.

In his reply to the I't and second grounds of appeal, Ambassador Professor Dr. Oboth Okumu, leamed counsel for the respondent argued them as if the trial was handling an application for extension of time in which to file this appeal. I got this impression from the following extract contained in leamed counsel's written submission as follows:-

"The trial judge correctly found and held that the respondent' then the plaintiff in the lower Court, had pleaded "DISABILITY". Disability was pleaded in paragraph 15 of his plaint dated 8 July 2002 which was filed in the High Court registry at Mbale on 9th July 2002 (see pg.l3 of Record of Appeal). The respondent additionally pleaded DISABILTY and explained the circumstances under which it arose in reply to defendant's written statement of defence (see pages 54-56 Record of Appeal).

By so pleading the respondent complied with (Order 7 rule 6 of the Civil Procedure Rules).

- lO 7 r 6 "where the suit is instituted after the expiration of the period prescribed by the law of limitation the plaint shall show the grounds upon which exemption from such law is claimed". 20 - While highlighting grounds for Re ecti of Plain Counsel for appellant appears to have overlooked or neglected Order 7 rule l3 of the Civil Procedure Rules. 25

lO 7 r 13"The rejection of the plaint on any of the grounds herein before mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.

## It is clear, therefore the B9j@b!4!

"(d) Where the suit appears from the statement in the plaint to be barred by any law."

# Is not absolute. Courts of law. includin s the trial Hieh Court below have lesal authority to allow extension of time ln defendins cases dependins on the circumstances of each case includins DISABILITY. [Emphasis mine]

I think there is no doubt whatsoever that on 86 July 2002, when this suit was instituted, more than eight years had elapsed from the date the various causes of action are alleged to have arisen i.e. on or before December 1993. Under the Civil Procedure (Miscellaneous Provisions) 20 Act and the Limitation Act (Cap 80) the action was time barred unless the respondent can show that he was unable to file the suit in time because of a genuine disability. The respondent pleaded that he had entrusted the matter to his two advocates, first Mr. Wegoye who confessed he would not manage it and subsequently to Mr. Emesu who filed a suit which the 25 respondent later discovered to be incompetent. He withdrew the suit and

filed the present suit. The only issue to be considered in this appeal is really whether the conduct of the two lawyers of the respondent amounted to a disability on the respondent within the meaning of the law.

The word "disability is defined in Black's Law Dictionary as "inability to perform some function: an objectively measurable condition of impairment, physical or mental."

5 In the case of Sowali Kadimu vs Attornev General the word disabili ty was defined as "any incapacity whatever that would hinder a person from performing a required duty. Longmans Dictionary of Contemporary English defines the word "hinder" to mean:

"(a) to stop or delay the advance or development of a person or activity. (b) To prevent or get in the way of ( c)To obstruct." l0

15 In the case of Sowali Kadimu vs Attornev General (su D ra) a High Court decision of 1971, the court held [Holding No.6, 7, and 8] that:

> "6. The word disability was not defined but s. E(2)(a) of the Act provided that: "for the purpose of this Act, a person should be deemed to be under a disability while he was an infant or of unsound mind." The two instances of disability were mere examples of what might amount to a disability and the action was not intended to provide an exclusive definition.

7. That construed in its ordinary meaning "disability" meant and included any incapacity whatever that would hinder a person from performing a required act.

> 8. A person on remand facing criminal charges was under a disability to institute an action for unlawful arrest or unlawful imprisonment until such time that he was acquitted of the

> > 7 charges against him. The time in such a case would begin to run from the date the charges were dismissed and accused released."

- It should be noted that at that time, section 8(2) of the Limitation Act [Act20l69)provided that disability should be deemed to mean infancy or unsoundness of mind. However, subsequent to this decision, the Limitation Act was amended and the provisions of section 8(2)(a) were transferred to the Interpretation section ofthe Act to provide as follows:- 5 - t0

# "S.3 For the purpose of this Act, a person shall be deemed to be under a disabilitv while he or she is an infant or of unsound mind." [Emphasis supplied]

- l5 This introduced three changes in the law:- - (a)By transferring the provisions of the then section 8(2)(a) of the Act to the Interpretation section, the legislature decided to define the word "disability". - (b) Instead of the words ""should be deemed" in the definition, the legislature used the words "shall be deemed." 20 - (c) The legislature clearly ovemlled earlier decisions like Sowali Kadimu vs Att rn General supra) and Fred Munsecha vs Attorney General l98l I HCB 34 which had attempted to widen categories of disability. Now there are only two acceptable categories of disability: infancy and unsoundness of mind. I

From the foregoing analysis, it is clear that in relying on Sowali Kadimu case, the leamed trial judge was not aware of the amendment to the

Limitation Act in which the word "disability" was defined. In the instant case, the respondent pleaded that his advocates had messed him up and the trial court accepted that, that was a disability. With respect, the only disabilities accepted in law are infancy and unsoundness of mind. Being messed up by ones lawyers does not fall in the category of disabilities. The court should have upheld the preliminary objection.

In my judgment, this should be sufficient to dispose of this appeal. However, the leamed trial judge also relied on the provisions of article l3(1)(g) of the 1967 Constitution and article 126(2)(e) of the 1995 Constitution. She cited an extract from the judgment in the case of Sowali Kidamu vs Attorney General (supra) where the court stated: l0

"The statute of Limitation ought to be construed strictly so that the right of a citizen such are strictly protected by the constitution were not taken away to a greater extent than the plain words of the statute requirement. The holding (4) the judge said that the statute of Limitation as stipulated in S.2(1) of the Civil (Miscellaneous Provisions Act 1969) was subject to the Constitutional protection in article l3(l) of 1967 and the extent to which it deprived a citizen of his proprietary right as permitted under article l3(l) of the 1967 Constitution would be confined to the strict Provisions of the Act."(sic) l5 20

25 She then concluded:

"Where necessary the Act would be interpreted liberally so as to allow maximum protection of those riehts. I am alive to the fact the article l3(1)(g) as referred to are not in effect the law

applicable but the principle is entrenched in the present Constitution by virtue of the provisions article f26(2)(e) of the 1995 Constitution as follows:

'In adjudicating cases of Civil and Criminal nature the courts sholl subject to the law apply the following (e) substantive justice shall be administered withoul undue regard to technicalities. This is so because a citizen's right should nol be suffocated by mere lechnicalities which ore hand maidens of justice.' '

With respect to her Lordship the trial judge, this conclusion was fallacious for a number ofreasons.

First, as I have indicated above, most of the decision in Sowali Kadimu

15 vs Attornev General was ovemrled by Parliament and is no longer good law. The court was labouring under a belief that it had discretion to extend categories of disabilities. Now we know that there are only two categories of disabilities, i.e. infancy and unsoundness of mind. I am quite aware of the decisions in Fred M. Munqec ha vs Attorney General

20 (supra) in which the High Court held:

"Imprisonment is a disability and accordingly, the court would hold the plaintiff was under a disability from the day he was arrested, until the day he was acquitted."

This case concemed a suit for damages for wrongful arrest and false imprisonment where the cause of action only arises when the victim of the wrongs is acquitted. In these cases, time starts to run when the acquittal takes place. This is different from a disability. The fact that

someone is in prison per se does not hinder him or her from filing a suit within the time of limitation. An intending plaintiff who is in prison is not required by law to be physically present when the suit is instituted. He/she can do so through a lawyer, a relative or friend as long as he/she is

not being detained incommunicado which is a rare phenomenon.

Secondly, article l3(2)(g) of the 1967 was repealed by the promulgation of the 1995 Constitution. Even if the provision was construed to be still applicable, it provided that where someone loor., prop.fi through the operation of the Statute of Limitation, the protection available under article 1 3( I ) of that Constitution could not be applied in his/her aid.

Thirdly, with respect, I do not agree that principles in article l3(2)(g) of the 1967 Constitution were entrenched in the present constitution by virtue of articl e 126(2)(e) of the I 995 Constitution. Whereas the former is about protection Ilom deprivation of property and legal limitation to

that protection, the latter is talking about society's demand on courts to

- administer substantive justice without undue regard to technicalities. These are two different principles applicable to different situations. lt - should also be bome in mind that this court and the Supreme Court have held in many cases that enforcement of a provision of a statute is mandatory and that such a provision cannot be called a mere technicaliq,. The courts have no power to extend time fixed by statute like the provisions of the Limitation Act. Mukula International Another vs 20 - 25 Cardinal Nsubuga 7 Another tl982l HCB ll.

In the result, I find merits in this appeal which should be allowed with costs here and in the High Court to the appellant.

26th day of Juli 2009. Dated at Kampala this.........

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$\mathcal{L}_{\mathcal{L}_{\mathcal{M}}}$

Hon Justice A. Twinomijuni JUSTICE OF APPEAL.

# THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

HON. JUSTICE S. G. ENGWAU, JA. CORAM: HON, JUSTICE A. TWINOMUJUNI, JA. HON. JUSTICE C. N. B. KITUMBA, JA.

# **CIVIL APPEAL No.04 OF 2004**

DEPARTED ASIANS PROPERTY] **APPELLANT CUSTODIAN BOARD** 1

### **VERSUS**

DR. J. M. MASAMBU

**RESPONDENT** 1 $\cdots$

[Appeal from the Ruling and Order of the High Court at Mbale (Mwondha, J), Dated 26th August, 2003 in HCCS No.52/2002]

## **JUDGEMENT OF KITUMBA, JA**

I have had the benefit of reading in draft the judgement of Twinomujuni, JA. I agree with it that the appeal has merit.

I would allow the appeal with costs to the appellant.

26 day of June Dated at Kampala this.... 2009.

CHES C C. N. B. Kitumba JUSTICE COURT OF APPEAL

# THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

CORAM: HON. JUSTICE S. G' ENGWAU' JA

HON. JUSTICE A. TWINOMUJUNT,JA "/

HON. JUSTICE C. N. B. KITUMBA, JA

# CIVI APPEAL NO. O4 OF 2OO4

#### BETWEEN

DEPARTED ASIANS PROPERY CUSTODIAN BOARD . APPELLANT

AND

DR. J. M. MASAMBU RESPONDENT

tAppeal from the Ruling and order of the High court at Mbale

(Mwondha, J.) dated 26th August 2003 in H.c.c.s No.52 of 20021

# JUDGMENT OF ENGWAU JA.

I had the benefit of reading, in draft, the lead judgment prepared by my learned brother, Twinomujuni, JA. I entirely agree with him that this appeal has merit'

Since my leamed sister, Kitumba, JA also agrees, this appeal is allowed in the terms proposed by Twinomujuni, JA.

Dated at Kampala this . ,-,g-tkdayof.. 2009

\<^,1-E+. S,G. ENgwau JUSTICE OF APPEAL