Dr. Menge v Mbarara District Local Government (HCT-05-CV-CS-0033-1997) [2012] UGHC 428 (28 August 2012)

Full Case Text

# HCT-05-CV-CS-0033-1997 THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA

DR. MENGE STEPHEN PLAINTIFF

Versus

## MBARARA DISTRICT LOCAL

GOVERNMENT RESPONDENT "

**lr>**

# BEFORE: HON. MR. JUSTICE BASHAIJA K. ANDREW

## *JUDGMENT*

Dr. Stephen Menge (hereinafter referred to as "the Plaintiff') brought this suit against Mbarara District Local Government (hereinafter referred to as "the Defendant"). The Plaintiff claims general and special damages for:- • .-----

Unlawful arrest. (i)

Unlawful detention. (h)

Criminal trespass. (iii)

Violating ofrights to privacy. (iv)

Forced labour. (v)

**I**

Forcible and unlawful retirement. (vi)

Ultimate and unlawful retrenchment/dismissal. • (vii)

**1**

The Plaintiff also seeks'for orders for re-instatement in his job with. Mbarara Stock Fann as an employee of Central Government; the payment of all arrears and accruals, of salaries and retirement benefits from the date of retrenchment/dismissal until date of reinstatement or until the lawful\* date ofretirement. The Plaintiff also claims fqr costs of this suit, and any other/further remedy this court may deem fit *:*

# *Background.*

**I I**

The Plaintiff was appointed on 30/1/1987 by Public ' Service Commission as an employee ofthe Central Government in the Ministry of Agriculture, Animal Industry & Fisheries (MAAIF) as a Veterinary Officer. He was then posted to Mbarara Stock Farm. On 27/09/1993.he was transferred to Kabale District as the In-Charge of.the South Kiruruma Diary Farm, in the same'Ministry still under Public Service. He'was confirmed in the service in 1994.

*("O*

*15*

*On* 6/1/1994, the Plaintiff was transferred back to Mbarara District, and on the 19/0'1/1994 the District Veterinary Officer (DVO) of Mbarara deployed him to work at Kinoni as the In-Charge ofRwampara County, which was under Mbarara Local Administration. The Plaintiffresisted the move, and was subsequently arrested and detained briefly by Police on instructions of the District Executive Secretary (DES) and other' District Local Officials. His residence at the Mbarara Stock Farm was also raided by Police in an attempt to evict him forcefully.' .

The state of affairs continued until 14/03/1995 when the Plaintiff was suspended by the DES, and was eventually retrenched from .service. From the causes of action and prayers, the Plaintiff is challenging the'

**2**

v-«H*' i:\**% 7 Tfcw'J

**.-J.-**

way in which he was suspended and retrenched. He is seeking the above stated remedies for unlawful dismissal.

At the commencement of the hearing the following issues were framed for resolution.

- 1. Whether the Plaintiff was ever transferred from the traditional Public Service to the Service of Mbarara District Local Council - 2. Whether the Defendant was justified to retrench the Plaintiff on $31/8/1995$ . - 3. Whether the personal rights of the Plaintiff were violated by the Defendant. - 4. What remedies are available to the Plaintiff.

Another issue of "when the causes of actions arose, and whether they are maintainable or not," was also framed at the instance of the trial court to be tried as an issue of law before the other issues could be resolved. Both Counsel, Mr. Bazare for the Plaintiff and Mr. Magooba for the Defendant, addressed it in their submissions. A ruling was judge, "the late scheduled for $12/01/2004$ , the trial but Maniraguha, (R. I. P) passed away before he could deliver it. The subsequent the trial court could not pronounce itself on the points raised in the particular issue for the reason that the arguments of Counsel could, *inter alia*, only be validated by evidence canvassed at the trial.

All the evidence is now on record, and after carefully evaluating the same this court holds the view that limitation of actions being an issue of law ought to be resolved at the earliest, since it could determine the case one way or the other. I am fortified in this view by provisions of

Order 15 rule 2 Civil Procedure Rule (CPR) to the effect that where issues both of law and of fact arise in the same suit, and court is of opinion that the case or any part of it may be disposed of on the issues of law only, it shall try those issues first and for that purpose may postpone the settlement of issues of fact until the issues of law havebeen determined.

### Resolution.

# When did the causes of actions arise, and whether they are maintainable or not.

Going by the pleadings of the Plaintiff, there are several causes of $\sim$ $\cup$ action which can be classified into one broad category of "tort". They include unlawful arrest, unlawful detention, criminal trespass violation of rights to privacy, forced labour, forcible and unlawful retirement, ultimate and unlawful retrenchment/dismissal.

1言论()

It is called for to point out at the outset that for the reason that the $-15$ instant suit was brought against a District Local Council, the applicable law as regards limitation of action is the Civil Procedure and Limitation (Miscellaneous Provision) Act (Cap. 72). Section 3 thereof, states as follows:-

"(1) No action founded on tort shall be brought against

- (a) the government, - (b) a local authority; or - $(c)$ a scheduled corporation,

$\cdot$ after the expiration of two years from the date on which the cause of action arose."

The settled position of the law as regards limitation of actions is that where a period of limitation is imposed, it begins to run from the date on which the cause of action accrues. See *John Siya Vs. AG [1972] ULRpart I, page 71; Siwali Kidumu Vs. AG[1976]HCB 87:*

In addition, where a suit appears to be barred by any law, i-t should be rejected under *Order 7 rale 11 CPR,* unless the party was under disability and pleads exemption from limitation in the plaint.as required under *0.7r 6 CPR.* See *Iga Vs. Makerere University [1972]EA 65.*

Regarding the alleged tort of unlawful arrest in the instant case, the Plaintiff avers in his pleadings (paragraph 13 of the amended plaint) -=- \\_ that he was unlawfully arrested by policemen at the instance ofthe then LCV Chairperson and DVO, in the period between 28/2/1995 and 11/3/95.

**<5**

**I i**

**—r.—I?.**

**!**

i I

Applying the test of limitation of actions under *Section 3 (supra),* where a period of limitation is imposed by law on a cause of action in tort, the period begins to run from the date on which the cause-of action accrues. It would follow then that where the unlawful arrest constitutes the wrong, time begins to run from the time ofthe act itself—

When the time is computed from the time of the latest date of the alleged tort of unlawful arrest (i.e.; 11/3/1995) to the time1 the Plaintiff filed this suit, (i.e.; 21/10/1997) the cause of action is evidently timebarred. The Plaintiffshould have filed his suit in respect ofthe injury as a consequence ofthe unlawful arrest on or before 11/3/1997. He did not do so until after seven month outside the time set by the law. ' W."'

**5.**

**I**

**1 1-**

The legal consequence of failure to bring action within time was aptly put in *Musambu Vs. West Mengo District Aminstrtion [1971] EA 379;* which was cited with approval by the Supreme Court of Uganda in *Eridadi Otabong Wanino Vs. Attorney General, SC. Civ. Appeal No. 6 of1990 [1991] ULSLR 150. It* was held that in cases ofwrongful arrest, the time within which to bring action begins to run after the plaintiffs release, and the failure to bring the action after the arrest puts the action out oftime. ' ■> .

**/**

**J •**

r **L**

**I**

In the instant case the Plaintiff was released five hours after his arrest, and the time began to run as against him then. His cause of action" CO became time barred when he failed to take action after his arrest within the two years.

**-**

As regards the alleged tort of unlawful detention, it too constituted'a separate cause of action from unlawful arrest. In paragraph 13 'of the plaint, the Plaintiff avers that he was detained for five hours subsequent upon his arrest, amidst demands by his tormentors that he should vacate the official premises at the Stock Farm, Mbarara. It follows then that the cause accrued immediately after the time of his detention, which the Plaintiff vacillatingly puts between 28/2/95 and 11/3/95. This also makes the cause of action also statute-barred.

I am alive to the fact that detention is a continuing tort. However, this can only be so for as long as a person is in the detention. The moment the detention ceases, then the disability is diminished and the time begins to run as against the plaintiff. Ifhe so wished, the Plaintiffwould *f* have pleaded exemption from limitation in respect of the injury for the *z*

**6**

\_\_ **u-** unlawful detention outside the period of limitation taking advantage of provisions of Oder 7 rule 6 CPR which state as follows:-

"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."

This rule is mandatory; (See Iga Vs. Makerere University [1972] EA 65); and a plaint which does not show such a ground must be rejected under Order 7 r. 11 CPR (supra); which is also couched in mandatory terms as follows:-

"The plaint shall be rejected in the following cases-

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

$(b)$ ...............

$(c)$ ....................................

The plaint in the instant case does not show grounds upon which. exemption from limitation is; or could justifiably be claimed. Such exemption could have been on grounds of disability under Section 5 (Cap 72) (supra) for the time he was under detention. The Plaintiff firmly avers that he was detained for only five hours after which he was $\sim$ 2 $\sim$ then released the same day. Clearly, if the Plaintiff wished to relay on the unlawful detention as disability upon which exemption could be premised, he had to specifically plead it as required by *Order 7 rule 6* CPR. There is evidently no such facts which would support the ground

$\cdots$

that he was under 'any disability. He simply did not bring his action in time.

Regarding the tort oftrespass, the Plaintiff appears to have mentioned it just in passing, in paragraph 14 of the plaint, and there are no particular facts which were pleaded that disclose the cause of action. The Plaintiff avers that:-

*"14. The Plaintiff avers that the trespass upon the premises and privacy and arrest and detention were unlawful"as purported transfer and orders to vacate Central Government official residence were ultra vires and contrary to law."*

**10**

**1**

\_\_

**I**

Nowhere does the Plaintiff plead facts constituting the alleged trespass. That notwithstanding, trespass, like in the case of the alleged unlawful. detention, was not a continuing tort in that the alleged tortfeasors ceased to trespass on the Plaintiffs official premises on the same day. The entire episode ended.as abruptly as it had started, and the period oflimitation begun to imn as against the Plaintiff from the time the allegedacts constituting the diverse causes of actions were.. committed1. Therefore, an action filed on 21/10/1997 for an-alleged tort of trespass committed between 28/2/95 and 11/3/1995 is statute barred, and cannot stand.

It is now settled that where there is no provision in the law which gives court discretion to extend or a bridge time set by the Act for doing an act, the court has no residual or inherent jurisdiction to enlarge a period laid down by the Act. See *Makula International Ltd. Vs. His*

**8**

*Eminence Cardinal Nsubuga (7982) HCB'll (CA). There* is therefore no basis for this court to entertain the matter filed out oftime.

*i*

**I**

It is evident that the alleged violations of rights' to privacy and forced labour are all causes of action based on tort. Applying the same principles of the law stated above on limitation of actions, they too are time-barred. The Plaintiff could not bring them two years after the date of their accrual, unless he was under disability, which he ought to have pleaded; but did not -implying that it he was under no disability.

**1 15** On the causes of action of the alleged forcible and unlawful retirement and ultimate and unlawful retrenchment/dismissal, it was argued for the-Plaintiff that they are causes of action based on contract, and henae were filed within time since *Section 3 (2)(Cap72) (supra)* provides that they could be brought within three years from the date the action accrued. Counsel for Defendant argued that they are also torts, and are, delimited by law as the other torts. &lt;

> I do not agree with the proposition that the Plaintiffs\* causes-of action are based on contract for the following reasons. Firstly, .it was argued for the Plaintiff, and correctly so in my view, that the Defendant had-no authority to retire the Plaintiff who was not its employee. It is, indeed, true that the Plaintiff was not an employee of the Defendant because he —PGO was never at any one time during his service frozen. into the Defendant's service from Central Government Service. He, at all material times remained an employee of Central Government and was confirmed as such in the same service. . ''

> > **9**

**;•**

**'El**

**I**

It meant that the Defendant could not lawfully retire/retrehch or dismiss \* a person who was not their employee in the first instance. In other words, thpre was no contractual relationship between the Plaintiff and, Defendant, and the Plaintiff could not competently sue the Defendant based on contract, because it never existed in the first place.

The same could be said of the unlawful retrenchment/dismissal. The Defendant had no power to retrench or retire or dismiss the Plaintiff whom it did not employ. For the time the Plaintiff worked in Mbarara, the Defendant only exercised statutory delegated supervisory powers over the Plaintiff, like the Kabale District Local Council exercised the C? same delegated supervisory powers over the Plaintiff while he worked there. But this could not; and did not; translate into a contractual relationship between the two. The contract existed only as between thq Central Government through the Public Service Commission and the Plaintiff where he was a confirmed employee. |

The net result is that any purported unlawful retirement -retrenchment and/ or dismissal ofthe Plaintiff by the Defendant\* was not based on the any contract between them, but purely tortuous actions ofthe Defendant as against the Plaintiff.

**01** Having found as I have done above, The Plaintiff was required to bring action against the Defendant for the torts within'the period stipulated by the law under *Section 3(Cap 72) (supra).* Failure to do so made the causes of action in alleged torts time -barred, with the result that the suit is bad in law. Accordingly, the suit is defeated by reason limitation of time within which it 'should have been instituted. This *:* invariably, also renders the discussion on the other issues purely

**I**

**i I**

**l**

**i**

**'i I**

**1** i **.)**

**J •**

**io**

**I**

academic. Courts oflaw are enjoined not .to resolve cases for academic purposes where there is no live dispute. See- *Hon. Justice-. R. O. Okuniu-Wengi Vs. Attorney General, HC. Misc. Application No 233 of 2006, per Musoke* -*Kuibuuka J.*

*1*

Accordingly, the suit is dismissed with costs.

**I**

**I i**

BASHA1JA-1 NDREAV

JUDGE 28/08/2012.

\ \A X<T J Co I a