Kamugabirwe v Attorney General (Civil Suit 217 of 2018) [2023] UGHCCD 411 (3 July 2023)

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

# (CIVIL DIVISION)

## **CIVIL SUIT NO. 217 OF 2018**

GODFREY KAMUGABIRWE ======================= PLAINTIFF

## VERSUS

ATTORNEY GENERAL ======================== DEFENDANT

## **BEFORE: HON. EMMANUEL BAGUMA**

## **RULING ON PRELIMINARY OBJECTION.**

## **Background.**

The Plaintiff filed this suit against the defendant for retrenchment and failure to compensate the plaintiff for loss ofpermanent employment on 30 th June 1994. He prayed for general damages, special damages, interest and costs ofthis suit.

When the suit come up for hearing, counsel for the Defendant raised a point of law to the effect that;-

#### **The suit is barred by the law of limitation.**

## **Submissions by Counsel for the defendant on preliminary objection.**

## *1. Whether the suit is time barred.*

Counsel submitted that according to section 3(1) (a) of the CPA is to the effect that no action founded in tort shall be brought against the Government after the expiration of two years from the date on which the cause of action accrued.

Counsel referred to section 3 (1) of the limitation act which provides that actions founded on tort shall not be brought after the expiration of six years from the date when the cause of action arose.

That order 7 rule 11 of the CPR provides that a plaint can be rejected where the suit appears from the statement in the plaint to be barred by any law.

Order 7 rule 6 requires that when a suit is instituted after the expiration of the time prescribed by the law of limitation, the plaint shall show grounds upon which exemption from such law is claimed.

Counsel referred to the case of **Jamada Luzinda Versus Attorney General HCCA No. 90 of 2012** where it was held that;-

*"it is trite that the principle that underlines the law limitation is basically one that "once statute barred, always statute barred" and the essence of the principle is that once a suit is statute barred, any subsequent developments cannot revive it".*

He further referred to the case of **Gawubira Mankupias Vs Katwiita Stephen HCCA No. 130 of 2008** where it was held that;-

*"It is trite law that a plaint which does not plead such disability where the cause of action is barred by limitation is bad in law".*

### **Submissions by Counsel for the Plaintiff on preliminary objection.**

Counsel submitted that the Plaintiff seeks compensation under section 19 of the Public Enterprises Reform and DivestitureStatute of 1993 (PERD). The plaintiff was an employee of UTC Ltd which was divested by liquidation under the above statute and was never compensated in full.

Counsel submitted that the PERD statute has primacy over any other statute including the Limitation Act. He referred to section 28 (2) and submitted that the suit is not time barred. That all the plaintiff has to prove is that he was not fully compensated.

Finally Counsel referred to the case of **Attorney General versus Unidron and Others CACA No. 9 of 2009** where court held that,

#### *"Divestiture is not complete until all creditors have been paid".*

In rejoinder, counsel for the Defendant submitted that the facts in Consolidated **Civil Appeal No. 4 and 616 of 2007 UNIDRON limited and others Vs Attorney General and the subsequent appeal No. 9 of 2009 Attorney General Vs UNIDRON Limited and others** are different and distinguishable from the case at hand. That the objection raised in the said matter had nothing to do with limitation of time but that the suit was instituted without the instruction of the plaintiffs.

Counsel further submitted that in Unidron case the applicants were approved creditors but in the instant case the plaintiff does not state anywhere in his plaint that he was an aproved creditor of Uganda Transport Company

**Analysis ofcourt.**

## **Section 3 of the limitation Act provides that**

*(1)"The following actions shall not be brought after the expiration of six years from the date on which the cause of [action](https://ulii.org/akn/ug/act/ord/1958/46/eng@2000-12-31) arose— (a) actions founded on contract or on tort;*

*(b) actions to enforce a recognisance;*

*(c) actions to enforce an [award;](https://ulii.org/akn/ug/act/ord/1958/46/eng@2000-12-31)*

*(d) actions to recover any sum recoverable by virtue of any [enactment,](https://ulii.org/akn/ug/act/ord/1958/46/eng@2000-12-31) other than a penalty or forfeiture or sum by way of penalty or forfeiture",*

In the case of **F. X. Miramago v. Attorney General [1979] HCB 24,** it was held that;-

*"the period of limitation begins to run as against a plaintiff from the time the cause of action accrued until when the suit is actually filed. Once a cause of action has accrued, for as long as there is capacity to sue, time begins to run against the plaintiff. One of the important principles ofthe law of limitation is that once time has begun torun, no subsequent disability or inability to sue stops it. I would emphasize that the claimant may only obtain protection, if they specifically plead disability".*

The rationale for statutory provisions relating to limitation was stated by Lord Edmund-Davies in *Burkett v. James [1977] 2 All E. R. 801 at 815,816* as follows:

*"Statutory provisions imposing periods of limitation with in which actionsmust be instituted seek to serve several aims. In the first place, they protect defendants from being vexed bystale claims relating to long-past incidents about which their records may no longer be in existence and as to which their witnesses, even if they are still available, may well have no accurate recollection. Secondly, the law of limitation is designed to encourage plaintiffs to institute proceedings as soon as it is reasonably possible for them to do so… Thirdly the law is intended to ensure that a person may with confidence feel that after a given time he may regard as finally closed an incident which might have led to a claim against him, and it was for this reason, that Lord Kenyon describes statutes oflimitation as 'statutes ofrepose'."*

The court of Appeal in **Iga Vrs. Makerere University (197) EA 65** held that a

plaint barred by limitation must be rejected. In the instant case, the plaintiff stated in paragraph <sup>6</sup> that his cause of action arose in 1994. The plaintiff filed this suit after 23 years.

It is my considered view that the cause of action is barred by the limitation act and the same cannot be sustained.

#### **Conclusion.**

In the final result, the preliminary objection raised by the Defendant is upheld with the following orders.

- **1. The plaint in Civil Suit No. 217 of 2018 is barred by the law of limitation and hereby rejected.** - **2. No order as to costs.**

Dated, signed, sealed and delivered by email this **3 rd** day of **July** 2023.

Emmanuel Baguma

Judge.