Lubowa and others v Makerere University (Civil Appeal 2 of 2011) [2013] UGSC 24 (19 June 2013)

Full Case Text

# E REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA AT KAMPALA

(Coram: Odoki, CJ., B. M Katureebe, C. N. B Kitumba, J. Tumwesique, and E. M. Kisaakye, JJSC)

## CIVIL APPEAL NO. 02 OF 2011

### **BETWEEN**

1. CHARLES LUBOWA

- 2. W. N. E. KISAMBIRA MASABA - Y. B. KAGWA - 4. E. J. BAMPATA - 5. J. C. KIGULI MAYANJA

**::::::::::: APPELLANTS**

#### 15

#### AND

## MAKERERE UNIVERSITY ::::::::::::::::::::::::::: RESPONDENT

[Appeal from the Judgment of the Court of Appeal, (AEN Mpagi-Bahigeine., DCJ, A. Twinomujuni, A. S. Nshimye, JJA) Dated 1ST day of February 2011 arising from Civil Appeal No. 11 of 2008].

## **JUDGMENT OF KATUREEBE. JSC.**

The appellants were staff of the respondent. They filed a suit in the High Court against the respondent alleging that the respondent had introduced new salary scales which had the effect of placing them in a lower salary scale than the one they were in before, and thereby prejudicing them in their employment terms and benefits. At the trial in the High Court the respondent

raised a preliminary point of law, namely, that the suit was time-

barred by virtue of the provisions of the Limitation Act.

The High Court upheld the preliminary objection and dismissed the suit. The appellants appealed to the Court of Appeal which upheld the decision of the High Court and dismissed the appeal; hence this appeal.

The appellants have filed, in this Court, 4 grounds of appeal as follows:-

- "1. That the learned Justices of the Court of Appeal erred in law and fact when they held that the appellants' suit was time-barred. - That the learned Justices of the Court of Appeal erred 2. in law and in fact when they failed to appreciate and consider the effect on accrual of the cause of action each time the appellants were removed from one salary scale to another till the last endeavour; and further that they also failed to appreciate and consider the effect of the respondent's action of paying monthly salaries and allowances to the appellants under the M6 salary scale and not under M9 salary scale by the time of filing the suit. - Alternatively, the Court below erred in law and in fact 3. when it failed to find that the respondent's conduct and actions made the appellants believe that the

$\overline{2}$

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respondent's t'lghts under the LlmltatTon Act ho.d, been waiued and. would not be insisted on.

4. That the leatted.ftrstices oJ Appeal ened. ln lqw qnd. fact when theg failed to conslder the legal authorities clted bg the appellants - which authorltles suppora the appellc;nts' contentlon in this ccse."

When this appeal came up for hearing in this Court, the

appellants were represented by Mr. G. S. Lule, S. C together with Mr. Jimmy Walabyeki. Mr. Andrew Kabombo represented the submissions, we allowed them to orally elucidate on a number of points in their written submissions. 10 respondent. Although both counsel had filed written

Counsel for the appellants argued grounds I and 2 together, and then grounds 3 and 4 also together. Counsel for the respondents responded likewise. I a-lso intend to deal with the appeal likewise.

On grounds 1 and 2, counsel for the appellants contended that Scales, they had been wrongly placed on the scale M9, which, to the appellants were employed as Chief Technicians by the respondent under U2 Salary Scale. On conversion to the M

them, was tantamount to a demotion. Counsel further stated that the appellants brought this to the attention of the respondent who conceded that the scale M9 was inadequate and moved them first to M7 and then to M6. Later the Vice

5 been placed on M5 and that formal communication would follow later. This was never done and finally in November 200 1, the respondent formally informed the appellants that they would be kept at M6. chancellor of the respondent informed them that they had indeed

Counsel submitted that as pleaded in paragraph 17 of the plaint, the cause of action arose in November 20O1 when the respondent made the final decision to keep the appellants at M6. Counsel relied on various correspondences and minutes of meetings to 15 show that the issue continued to be a subject of discussion between the parties until final decision was made. He contended that each time the appellants were shifted from one scale to another; it constituted a new contract of employment under that new salary scale. To counsel, the last contract had been that when the Vice Chancellor had confirmed that they were put at M5 scale which only awaited formal communication. This was in

L994. To counsel, this contract was breached on 22"d November 200 1 when the University Council finally made the decision to keep them at M6. Counsel contended therefore that the cause of action only arose on that date because that was when the breach s occurred. Therefore, the filing of the suit on 30th April 2O04 was within time. Therefore, counsel argued, the suit was not time barred and the Courts below were 'lvrong to frnd that the suit was time barred under the Limitation Act, and rejecting the plaint under Order 7 Rule 2 of the Civil Procedure Rules.

Furthermore, counsel contended that the restructuring exercise of the respondent's staff was carried out over a long period of time between 1983 when the circular was first published until 2001 when the final decision was made. Counsel argued that in 1s so far as the suit was based on the cause of action arising from payment of salaries to the appellants on the M6 salary scale between 1994 and 20O1 instead of the M5 salary scale, it constituted a continuing breach of contract. Counsel cited the American case of Glllette -Vs- Tvrker, 65 N. E. 865 (Ohto l9O2) zo on the issue of continuing breach of contract. Alternatively counsel argued that each time the appellants were paid under

the M7 or M6 scale, it amounted to part payment under M5 payment was made to the appellants on those scale. Furthermore, counsel contended that the above pal,rnents which they claimed. Therefore time began to run each time a

on M5 scale. constituted an acknowledgment of the appellant's claim to be put 5

With respect to grounds 3 and 4 which were alternative grounds, counsel argued that the conduct of the respondent throughout the long period of protracted negotiations was indicative of the fact that the final decision had not yet been made. Counsel cited CHITTY OJV COJVIRAC?S 28th Edition Vol.1 at paragraph 2 - 025 on the subject of "contlnulng negotlatlons.u

- 15 Counsel further contended that by the conduct ofthe respondent and its officers, the respondent had waived the necessitSi to raise the issue of limitation of action since they had represented to the appellants that they had been placed on M5 as requested and that all that remained was formalising the matter. The - appellants had a legitimate expectation that the respondent would live up to its commitment. To counsel this had also meant 20

limitation. In that regard counsel cited I{AMMINS BALLROOMS , that the respondents were estopped from raising the defence of Co. LTD -Vs- ZEMTH IltyES?MEffrS (/IIORQWAY) LTD (1970) 2

ALL E. R. 871 (HL) at page 894 as authority for the proposition

5 that if one party by his conduct leads another to believe that the strict rights arising under the contract will not be insisted on, intending that the other should act on that belief, and he does act on it, then the first party will not afterwards be allowed to insist on the strict legal rights. Counsel also cited NATIONAL

10 IIVSURAJVCE CORPORATION -Vs- SPAIV IJVIER NATIONAL, 7 99 7 - 2OOl UGANDA COMMERCIAL LAW RE,PORTS, 7OO, a decision of the Uganda Court of Appeal, on the issue of waiver which cited and relied on the KAMMINS case (supra).

- 15 On the issue of legitimate expectation, counsel cited the Irish fulfrlled before a claim of legitimate expectation can succeed. Counsel submitted that those conditions are met by the case of GLENCAR EXPLORATION -Vs- ITIAYO COUIiI'TY COUNCIL [2OO2l I. R. 84 which sets down the conditions that must be - their proper scale had been accepted by the respondent who then zo appellants in this case, in that their claim that scale M9 was not

moved them first, to M7 and then M6, and the Vice Chancellor informed them that they had indeed been placed on M5. They legitimately expected that the matter would be concluded as promised. This was not done and the respondent only made that made the decision. Therefore, Counsel argued, the respondent were estopped from pleading limitation even if it were to be held that the contract had been breached earlier. Counsel therefore prayed that the appeal be allowed, the Judgment of the Court of 10 Appeal be set aside, and the suit remits to the High Court for decision on December 200 1 when its University Council finally consideration of the merits. He also prayed for costs.

In reply, Mr. Kabombo, for the respondent reiterated their written submissions and fully supported the decisions of the lower 1s Courts. He reiterated the position that the appellants and the employer who alleged that their terms of service were breached by the Circular of 1983 whereby they were placed in salar5r scale M9. Counsel contended that the time within which to file a suit for breach of contract ought to have been filed within six years 20 respondent were in a contractual relationship as employees and from 1983 in accordance with the Limitation Act. The appellants

respondent. failed to do so and opted for lengthy negotiations with the

In answer to the contention by the appellants that they had been s moved from Scale M9 to M7 and then to M6 and then been informed by the Vive Chancellor in 1994 that they had indeed been placed on M5, counsel argued that this would only have had the effect of pushing their cause of action to 1994. They would still be time-barred given that they filed the suit in 2OO4.

- 10 Counsel argued that the pleadings contained in the ptaint had based the cause of action on the circular of 1983 and the appellants must be bound by their pleadings. As to the lengthy negotiations that had taken place, counsel contended that negotiations did not preclude the appellants from filing their suit 15 in time and that negotiations could not act as a bar to a statute. Counsel cited section 3(1)(a) of the Limitation Act and Halsbury's Lauts of England, 4\* Editlon, VoL 28 para 622 with regard to when the cause of action arose. Citing paragraphs 4, 5, 6 and 14 of the plaint, counsel contended that the cause of action arose on 15th March 1983 when the circular by which the appellants were 20 - placed on M9 was published. Counsel further contended that the

/ appellants had not pleaded any exemption under the Limitation Act, and therefore the lower court was right to strike out the suit under Order 7 Rules 6 and 1 1 of the Civil Procedure Rule. Counsel cited this Courts decision in ERIDAD OT.tBONG -Vs.

- 5 ATTORNEY GENERAL S.c. C./i. 6fi99o (1991) ULSLR 150 to pleaded. Counsel dismissed the argument by the appellants that their pleadings in paragraph 7 of the plaint did not amount to the effect that the time of Limitation begins to run from the time when the cause of action accrues, and any exemption must be - any legal acknowledgement of liability and did not constitute grounds of exemption. Counsel fully supported the findings and decision of the Court of Appeal in that regard. 10

With regard to the alternative grounds 3 and 4, counsel submitted that there was no waiver of the respondent's right to set up an objection based on the law of limitation. Counsel distinguished the case of Ndtlonal Insurqnce Corporatlon -Ils-Span InternqtTonal Ltd [7997-2001] UCL IOO from the instant case In counsel's view, that case dealt with a period of limitation set by contract, whereas the instant case deals with limitation set by statute. Whereas in the former case there were exception 15 20

where there were pending action or arbitration, and negotiations between the parties were regarded by court as upendlng dctlott,t' there was no such exception in the Limitation Act.

- 5 Counsel therefore fully supported the decision of the Court of Appeal and prayed that the appeal be dismissed and the decisions of the Court of Appeal and High Court be upheld. Counsel also prayed for costs. - 10 raised at the High Court hearing that the suit was time barred by virtue of the operation of the Limitation Act. To my mind, central to that issue, is the determination as to when the cause of action arose. The alternative issue is whether there were any grounds 15 upon which the respondent could be prevented from pleading limitation of action under the Limitation Act. I agree with the decision of this Court in the OTABONG case (supra) that limitation begins to run from when the cause of action arose. 20 that, in my view, one has to look at all the facts and peculiar circumstances of the case. This case concerns one issue, i.e. the preliminary point of law But one has to determine when the cause of action arose. To do

According to HALSBIIRY'S LIB|S OF DNGI aND, 4 Ed,ltlon Vol. 28 para 622 it is stated thus:-

6Apart, from ang speclal proalsTon, a co;use of actlon nonnallg accrues urhen there {s in existence a person there are present o'll the facts whlch are materlal to be proaed to entltle the plalntlff to succeed." (emphasis added). utho can sr,te a,nd q,nother uho can be sted, and. when

10 succeed. In a case like this one the plaint itself states in 15 paragraph 17:- It would appear to me that in establishing when the cause of action arose it is necessary to consider the pleadings in their entirety to be able to conclude that there were present all the facts which were material to be proved to entitle the plaintiff to

> "The cause of actlon d."ose ln Nouember, 2OOl uthen the defendant finallg reJused to place the platntlffs ln thetr rtght M5 Salary scale and, thls was at Mdkerere Uniuersltg uttthtn the Jurtsd,lctlon oJthls Honourq.ble Coura."

On the other hand, the respondent, supported by both Courts below, maintains that the cause of action arose in 1983 when the

question that comes to my mind is this: when were all the facts present? , circular placing the appellants on scale M9 was issued. The

It would appear to me that the plaint, sets out a chronologz of

5 events that give rise to the cause of action. That is why, I believe, paragraph 3 thereof is in the following formulation;

> u3. The platnttlfs and. the other 20 ChteJ Technlclq.ns whom theg represent clairm o;reors oJ salan-les and alloutances plus lnterest qnd costs from the defendant as a results of the breach of the tenns of thetr respectlue contracts of senices bg the d,eJendant's councll,/ag ents ln the clrcutnstcnces set out herewlth,,' (emphasis added).

15 the government of Uganda is said to have introduced the Revised Salaries and Conditions of Service which introduced the U-Scale and placed the plaintiffs on the U2 Scale. The narration goes to 15th March 1983 when the new General Circular No. 63 I was 20 promulgated by the Government of Uganda jointly with the respondent by which Makerere University was given its own salary scales - the M scale ranging from Ml to M5. The issue then became, for all staff, where their U. Scale levels would be on What follows is a narration of events beginning from 1976 when

the new M Scale. A conversion Histogram was made for the appellants, they were placed on the M9 Scale. The appellants protested and the respondent undertook to look into their complaint. Subsequently, the respondent abolished M9 altogether and placed the appellants on, first M7 and then M6.

?.0

The appellants still contended that they ought to be on M5. In on March 1994 and 1ltl,July 1994, the Vice Chancellor informed 10 the appellants'representatives that a decision had been made to place them on M5 and that formal communication would be made later and implementation would follow. No such communication was ever made and the decision was never implemented. The appellants subsequently frled a complaint with subsequent meetings with the Vice Chancellor of the respondent the Inspector General of Government.

The question that comes to mind is this: why did it take so long for the appellants to file a complaint with the IGG, let alone file proceedings in court. According to the respondents, the contract within six years stipulated in the Limitation Act. To the respondent, time started to run from March 1983 when the appellants sat on their rights and failed to file their suit based on

1,4

circular which placed them on M9 was issued. Indeed, the Court of Appeal echoed that position. In the lead judgment, Mpagi-Bahigeine, DCJ, stated thus:-

"A lot of time had passed since 1983 when the appellants started to suffer damage. On the proper application of the principles governing limitation, there can be no escape from the conclusion that the appellant's suit is clearly time barred. Perhaps it might be some solace to the appellants that the initial damage caused in 1983 has been mitigated. There was absolutely no reason why the appellant did not resort to courts for a prompt and decisive remedy.

The observation by Kanyeihamba, JSC in Iga's case [supra] is apposite:

"I agree with Mr. Sekandi that an offer to negotiate terms of settlement between parties to an action, admirable as it may *be, has no effect whatsoever on when to serve statutory* notice or file a suit in time. It is my opinion that even when *genuine and active negotiations are going on or contemplated* between the parties, it is still incumbent upon those who need to file documents to do so within the time allowed. *Thereafter, they are at liberty to seek adjournments for purpose of negotiations.*"

would hante giuen them leverage to negotldte from a vantage posltlon. The appellq.nts allouted, them.selues respond.ent was testlng them out. Theg have onlg themselues to blame.n In fact hc,d the appellants filed sutt lmmedlatelg 7t to be kept in suspense tndefi.nltelg uthlle the

Although the learned DCJ does not state how the initial damage 10 caused in 1983 had been mitigated, it is safe to assume that she has in mind the placement of the appellants from the M9 scale to M7 and then M6. But then how does one explain the abolition of the M9 altogether. I am also unable to accept that there was "absolutelg no reason whg the appellants did not resort to Courts

15 for a prompt ond decisiue remedg." From the records attached it is clear to me that both parties were not sure about the proper equivalency of the two salary scales. The movement of the appellants from M9 to M6 was not done so as to mitigate the "initial damage." It was done because the respondent was not sure as to the proper placement for the appellants That is why the respondent set up the Rwendeire Committee to study the problem. Indeed that is why even the Vice Chancellor, the Chief 20

Executive of the respondent, could, after the Rwendeire Report, inform the appellants in1994 that they were now placed on M5, which position had been recommended by the Rwendeire Committee in its Report to the respondent.

I also do not agree with the learned DCJ that the appellants "allowed themselves to be kept in suspense indeflnitely whlle the respondent was testing them out." That would imply that the respondent was acting in bad faith all along, just to test out 10 the appellants.

I do not believe that the respondents were acting in bad faith, just to test out the appellants. It appears to me that the respondent formed the view that the whole exercise of

- 15 determining the equivalences of the salary scales was more complicated than thought and it required careful professional study and advice. This was not just a matter of negotiations, or in any case, the type of negotiations envisaged by Kanyeihamba, JSC, in the IGA case (supra). This was a case, where the - respondent formed the view that the matter required serious study and advised the appellants to wait for those studies. 20

Thus according to the Minutes of the First meeting between the Vice Chancellor and representatives of the Chief Technicians on the 11th July 1994, it is reported that the Vice Chancellor informed the meeting:

"2. That the delay in effecting his decision was mainly due to the on going Public Service Exercise of Restructuring the Civil Service salary structure and scales for all categories of staff including the University which was expected to be completed by the end of 1994."

"3. That the amalgamated M. Scale, to his best knowledge, contained many anomalies which were resented not only by Chief Technicians but also bu other staff such as the academic and administration staff"

"4. That there was therefore real need to solve these problems once and for all." (emphasis added).

To me the importance of this information from the Vice 20 Chancellor was to let the appellants know that the matter was being studied and the results of that exercise would be used to guide the decisions made. Indeed as already indicated, the respondent had itself commissioned Dr. Abel Rwendeire to study

$\mathsf{S}$ the issue of "Chief Technician Grqde And its Equiualence to February 1992. This report had recommended in para 4.1 and 4.3 as follows:- Academic Grqde." This report had been produced on loth

u4.7 - "Ilavlng noted that pretrlous sccles of the Unlaersltg seflice equated. ChtefTechnlcians to senlor lecfr.trers and notlng tho;t the Chtef Technlclans do sign senlor terms of sentice, it 7s recommended. tho,t thelr equlualence to senior lechtrer's grade be restored lmmedlatelg.u

u4.3 - \$Ilaning noted thqt the change over.from U-Scqle to M-Scdle created distor'tlon In scales ofMakerere emplogees, u)e recommend that the M - Scq.les be revlsed. ln ulew of ellmlnatlns the anomalTes that uere lntroduced ln the s[lstem. Speclficallg M9 should be qbollshed that all those ln this category are included tn M5. ft {s crlso recommended that M8 should. be q.bollshed.' (emphasis added).

It is clear to me that when the Vice Chancellor subsequently met the appellants'representatives, he was echoing the above recommendations, but which recommendations appear to have been subsequently rejected by the University Council. It is to be 25 noted, and it was submitted so by counsel for the respondent,

that the University Council is the supreme decision making authority. It is evident that that authority did not make its final decision until 2001. It is apparent that even after the Rwendeire Report was submitted, the respondent still wanted to commission other studies before a final decision was made.

In his letter to the Inspector General of Government dated 29th October 1998, the Vice Chancellor wrote, on the subject of Regrading of chief Technicians to M5 salary scales, as follows in paragraph 3 thereof:-

"To resolve this problem the University has decided to carry out a job evaluation (by bench marking all positions in the university and a restructuring exercise. These two exercises are to be funded by the World Bank and facilitated by the Ministry of Public Service. Part of the study is already done. We are waiting for the funds to embark on the next phase. Mr. David Court of the World Bank is already here to discuss with the Ministry of Public Service and the University the modalities of carrying out the two exercises. Unless a proper job evaluation is done, there is no way we can resolve a problem involving qualifications and rank. We have told the Chief Technicians to wait until the exercise is completed.

Thqt ls the best ute co,n do at the moment.'(emphasis added).

In my view, this was not a case of negotiations between the s Parties. It was a case of where the parties wanted to scientifically determine the facts with regard to the equivalence for the Chief Technicians on the M Scales. The various studies and reports indicate to me that until a final decision was made, the parties did not have all the facts necessar5r to commence legal

10 proceedings. Indeed, had the appellants filed a suit then, it is conceivable that the respondent might have raised the defence that the action was premature since the issue was still a subject of study. It is indeed amazing to me that the respondent should have raised the issue of limitation given the above background. If 15 what the learned DCJ, stated were to be true that the respondent was merely "testing them out" then the conduct of the respondent would at best be described as dishonest and dishonourable. It would be most inequitable to allow them to now turn to the defence of limitation. But , as I have indicated , I think they were genuinely trylng to scientifically establish the facts that would enable both sides to make appropriate decisions. 20

In my considered view, all the material facts necessary to constitute a cause of action were not present while all these studies and exercises were going on since no final position had been made by the responsible organ of the respondent.

$5$

The respondent raised the issue of limitation. However, to me, from the analysis of the events as they unfolded, the respondent could not have intended that the appellants be led on a wild goose chase until their action was time-barred, as seems to be 10 implied by the learned DCJ. It appears that the respondent actually believed that the appellants did have a genuine concern but one which could not be resolved without further study hence the appointment of various study committees on the subject. Indeed at the meeting of the respondent's University Council of 4th September, 2001, the Management reported to council under Minute $4(f)$ :

> "That the University was in conjunction with Public Service, undertaking a University wide restructuring exercise that would involve job evaluation of all members of staff and re-grading of posts accordingly. Phase one, covering administrative staff was already in advanced stages. That the issue of re-grading, given

Its complexlties should autait the sald, exerclse., (emphasis added).

While all that had been going on, the appellants had been s advised "to wait." That could only mean that they do not take any further action until those studies were completed. Indeed the said meeting of the Council reviewed all those reports and reached the decision that the correct position for the appellants was M6 not M9 where they had originally been placed. The

10 Council also thereby rejected the recommendation of the Rwendeire report, communicated to the appellants by the Vice Chancellor, that the appellants be place on M5. The Council confirmed the abolition of M9 and M8. I hnd it all the more surprising that the respondent can now plead that the appellants' 15 cause of action arose when they were put on M9 in 1983.

In my view, the cause of action arose when the hnal decision was made by the respondent's council. The suit was therefore not time-barred. Accordingly ground 1 and 2 should succeed. That In effect disposes of this appeal, and it would not be necessa\_ry to go into grounds 3 and 4 which were grounds presented and argued in the alternative.

· I propose, however, to make some comments on those grounds as they raise an interesting point, i.e. whether a party may, by conduct and or representations waive its rights to plead limitation under the Limitation Act.

Section 3(1) of the Limitation Act (Cap. 80 of the Laws of Uganda) states as follows:-

"3.(1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action arose. a) Actions founded on contract or on tort. $\boldsymbol{b)}$ $c)$ $\boldsymbol{d)}$ except that in the case of actions for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under an enactment or independently of any such contract or any such provision) whether the damages 20 claimed by the plaintiff for the negligence, nuisance or

$5$

breach of duty consist of or include damages in respect of personal injuries to any person, this substituted $a$ reference to three years"

- In this case we are concerned with an action based on contract. $5$ Part III of the Act makes allowance for extension of the period of limitation in cases of disability, acknowledgment, part payment, fraud or mistake. A person who is affected by any of the above would, by express pleadings, seek an extension of time. The - issue raised by the alternative grounds 3 and 4, however, is 10 whether a party who would be entitled to a defence of the action being time-barred, could be defeated by his/her conduct and or representations to the other party that the defence would not be raised.

There seems to be authority for the proposition that indeed representations made by a party to another or conduct on the part of that party which make the other party to believe that proceedings may be delayed, can act to defeat that party's defence of the action being time-barred.

15

r HALSBURY LAWS of England (supra) paragraph 608 states as follows:-

howeaer, that the defend.ant utllI be debarred from settins up the stadtte if. during the neq otlations, he has entered lnto an aoreement for oood, consld.eratlon not to do so, or. qfter he hos represented that he 15 desires thqt the plqintiff should d.elqu proceedlnqs and thqt the lain will not be dlced b the tho hls reoresentqtlon.n (emphasis added). n6O8. Effect of negotlatlons betueen the partles. The mere fact that negotlatlons hq,ve tq.ken place between a clafinant and. q person against uthotn q. clalm ls mqde does not debqr the defendantfrom pleadtng a stqtute of ltmitatlon, euen though the negotlatlons mag haue led to delay and caused the clalmant not to brlng hls actlon untll the statutory period hos passed.. It seems.

Counsel for the appellants raised the issue of waiver, contending 20 that the respondents by their conduct as well as by their representation had waived the right to rely on the defence of limitation of time. On the other had, counsel for the respondents argued that there can be no waiver from a statute.

There is a view that, a lot has to depend on how one interprets the Limitation Act. A literal interpretation would indeed mean 25

, that an action founded in contract is prohibited once six years elapse from the date of the accrual of the cause of action. However, there is authorit5i to suggest that one needs to tal<e a

purposive approach in the interpretation of the Act. One needs

s to look at all the circumstances of the transaction including the conduct of the parties and representations the parties made to each other, and determine whether the purpose of the Act is defeated where the parties promise each other to give more time to study a problem between them, or where one part5r makes the 10 other to believe that he will not raise the issue of time bar.

This matter of waiver and the purposive approach to interpretation of a statute of Limitation was considered by the House of Lords in the case of IIAMMINS BALL ROOJI4S Co. LTD - Vs- ZEMTH IIvyESTtlltE I?S (TORQUAY) LTD [797012 ALL. ER, 87I where the Court was considering the Landlord and Tenant Act, 1954. Lord Diplock stated at page 893 as follows:-

uOn the purposlae approach to stadfiory consttttdtlon thts is the reason uhy ln q, stqfl.tf're oJ thts chora,cter q procedural requlrement lmposed for the benetlt or protectlon oJ one pdrty eLse is consttted. as stbJect to the implled exceptlon thqt it co,n be uwalaedu bg the partg for whose beneftt it is lmposed euen though the

2.7 that the oarta hqs chosen not to rel on the noncompllq.nce of the other paras uttth the requlrement, or 5 hc,s dlsentltled hlmself from rehtlno on It elther bu aqreelnq utth the other not to d.o so or becquse he hq.s so conducted. htmself that it utould not be falr to allow hlm to relu on the non-compllance. ?his is the constntctlon whlch has been uniformlg applted bg the cour-ts to the unquallfied and unequluocal words ln staf;.ttes of ltmttatton uthich prohlbtt the brtngtng of legal proceedlngs aft,er the lapse of a speclfied tlme., (emphasis added). statute stctes the requlrement ln unquallfied and unequlaocal utords. In thls context owalaed" means

I note that the above case was cited with approval by the Court ofAppeal in the case of Natlonal Insurance Corporatlon -Vs-Span Internatlonal Ltd. NCLR [1997-2OO1]7OO on the issue of waiver. It would aopear therefore that it is oossible, on the eanliqr circumstances o a iuen case to hold that the conduct o zo a partu or representations bu the partu to the other mqu prelude that partu from raisinq the defence of time-bar. 15

The appellants in this case would have been obligated to file their case within six years of the issuance of the circular of 1983. But the respondents assured them that the matter was being studied. They followed that up by shifting them to M8 then M7 and M6. The appointed Study Committee even recommended that they be placed on M5, which was communicated to the appellants by the

'Vice Chancellor. Then they were told that more study was needed. In effect the respondent was telling the appellants this:-

# uI thlnk gou haae q cqse. Lct us shtdg lt and. ho;ndle lt properlg once and. tor all. You may well be rlght. We are not sure. Do not do angthing get."

The appellants were asked to wait for the outcomes of those studies.

Having done that, I find it puzzling that the respondent should now plead that the contract was breached in 1983. It cannot be the intention of the legislature that a party could mislead another into not taking legal proceedings and then use the limitation

ls clause to defeat the claims. It would be so unfair and unequitable. The Court, in my view, should not ignore all the representations made by the respondent to the appellants. It is conceivable that the alternative grounds might have succeeded had it been necessary to determine them.

In the circumstances I would allow the appeal and remit the suit to the High Court to determine the substantive issue of whether the appellants should be placed on M5. The details of who of the

### IN THE SUPREME COURT OF UGANDA AT KAMPALA

#### (coRAM: ODOKI C. J; KATUREEBE, KITUMBA, TUMWESIGYE AND KISAAKYE, JJ. SC.)

### CIVIL APPEAL NO. 02 OF 2011

#### BETWEEN

| 1 | CHARLES LUBOWA | ) | |---|--------------------|----------------------------------------------| | 2 | WNEKISAMBIRAMASABA | ) | | 3 | Y B KAGWA | :: : :: : ::: : : :: : : :: :APPELLANTS ) | | 4 | E J BAMPATA | ) | | 5 | J C KIGUL!MAYANJA | ) |

#### AND

MAKERERE UNIVERS]TY : : :: : :: : :: : : : : :: : : : : : : : : : : :: : : : : : : : : RESPONDENT

[Appaat from the judgment ot the Court of Appeal at Kampala (Mpagi-Bahigeine DCJ, Twinomujuni & Nshimye JJ,A) dated 1't February 2011 in Civit Appeat No.11 of 2oo8l

#### JUDGMENT OF ODOKI, CJ

I have had the advantage of reading in draft the judgment prepared by my learned brother Katureebe, JSC and I agree with him that this appeal should be allowed. I concur in the order he has proposed as to costs.

As the other members of the Court also agree, this appeal is allowed with costs in this Court and Courts below.

D Kampala this o CHIEF JUSTICE fl day of ...... \*).t\*:\*-.(- 2013 ,(^

appellants was affected are also issues to be determined at the High Court.

Accordingly I would set aside the decision of the Court of Appeal

5 and High Court, and allow the appeal in respect of the preliminary point, with costs in this Court and the Courts below.

Dated at Kampala this........1 day o ...20t3.

BART M. Katureebe JUSTICE OF THE SUPREME COURT

## IN THE SUPREME COURT OF UGANDA **AT KAMPALA**

ODOKI CJ, B. M KATUREEBE, C. N. B KITUMBA, J. TUMWESIGYE AND (CORAM: E. KISAAKYE, JJ. S. C.)

### CIVIL APPEAL NO. 02 OF 2011

#### **BETWEEN**

1. CHARLES LUBOWA 2. W. N. E. KISAMBIRA MASABA 3. Y. B. KAGWA 4. E. J. BAMPATA

5. J. C. KIGULI MAYANJA

**\*::::::::::::::::::::::::::::::::::::**

#### AND

#### MAKERERE UNIVERSITY::::::::::::::::::::::::::::::::::::

[Appeal from the judgment of the Court of Appeal (Mpagi Bahigeine DCI. Twinomujuni, Nshimye J. A) dated 1st February, 2011 arising from Civil Appeal No 11 of 2008]

#### JUDGMENT OF KITUMBA, JSC.

I have had the benefit of reading in draft the judgment of my senior brother, Katureebe JSC and I concur that this appeal has merit and should, therefore, succeed.

I agree with the orders he has proposed therein.

lune. Dated at Kampala, this -- dav of ----2013

Calls. Gitunda

## JUSTICE OF THE SUPREME COURT

## IN THE SUPREME COURT OF UGANDA

## AT KAMPALA

(CORAM: ODOKI, C. J.; KATUREEBE; KITUMBA; TUMWESIGYE AND **KISAAKYE; JJSC.)**

## CIVIL APPEAL NO. 02 OF 2011

### **BETWEEN**

1. CHARLES LUBOWA 2. W. N. E KISAMBIRA MASABA 3. Y. B. KAGWA 4. E. J. BAMPATA 5. J. C. KIGULI MAYANJA

**::::::::: APPELLANTS**

AND

### MAKERERE UNIVERSITY :::::::::::::::::::::::::::::RESPONDENT

[Appeal from the judgment of the Court of Appeal at Kampala (Mpagi-Bahigeine, D. C. J., Twinomujuni, and Nshimye, J. J. A) dated 1st February 2011 in Civil Appeal No. 11 of 2008]

### **JUDGMENT OF TUMWESIGYE, JSC**

I have had the benefit of reading in draft the judgment prepared by my learned brother Katureebe, JSC, and I agree with the judgment and the orders he has proposed.

$19^{\circ}$ Dated at Kampala this .. .day of ..... Survey....................................

Jotham

JUSTICE OF THE SUPREME COURT

## IN THE SUPREME COURT OF UGANDA AT KAMPALA

### (CORAM: ODOKI, C. J., KATUREEBE, KITUMBA, TUMWESIGYE & KISAAKYE, JJ. S. C.)

## **CIVIL APPEAL NO. 02 OF 2011**

### **BETWEEN**

1. CHARLES LUBOWA 2. W. N. E. KISAMBIRA MASABA 3. Y. B. KAGWA 4. E. J. BAMBATA 5. J. C. KIGULI MAYANJA :::::::::::::::::::::::::: APPELLANTS

### AND

## **MAKERERE UNIVERSITY :::::::::::::::::::: RESPONDENT**

{Appeal from the Decision of the Court of Appeal at Kampala (A. E. N. Mpagi-Bahigeine, D. C. J.; A. Twinomujuni and A. S. Nshimye, JJ. A.) dated 1st February, 2011, in Civil Appeal No. 11 of 2008}

### **JUDGMENT OF DR. KISAAKYE, JSC.**

I have had the benefit of reading in draft the judgment of my learned brother, Justice Katureebe, JSC.