Lubowa and Others v Makerere University (CIVIL APPEAL NO. 11 OF 2008) [2011] UGCA 17 (1 February 2011)

### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

### CIVIL APPEAL NO. 11 OF 2008.

[Appeal from the decision of the High Court of Uganda at Kampala by His Lordship Hon. Justice V. A. R. Rwamisazi Kagaba dated the 25<sup>th</sup> day of July 2007 in the High Court Civil Suit No. 232 of 2004]

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**CHARLES LUBOWA & 4 OTHERS ::::::::::::::::::::::::::::::::::::**

#### **VFRSUS**

**MAKERERE UNIVERSITY ::::::::::::::::::::::::::::::::::::**

CORAM: HON JUSTICE A. E. N MPAGI-BAHIGEINE, DCJ

## HON JUSTICE A. TWINOMUJUNI, JA HON JUSTICE A. S. NSHIMYE, JA

# THE JUDGEMENT OF HON JUSTICE A. E. N MPAGI-BAHIGEINE, DCJ.

This appeal is against the dismissal of the suit, by the High Court, and upholding the preliminary objection that it was time barred. Mr. Joseph Kabombo with Ms. Esther Musiime were for the respondent.

The background is as follows. The appellants were appointed by the Makerere University, hereinafter referred to as the respondent, as Chief Technicians and worked as such between the years from 1970 and 1999. Before 1983 the appellants were in the U2 Salary Scale which ranged from U1 to U8.

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on the 15th March 19g3, by Generar Circurar No. 631, the respondent in conjunction with the government of Uganda introduced ,,M,, salary scale ranging from M1 to M15. Under this arrangement, the respondent placed the appellants in M9 salary scale.

5 Later, by letter dated 24th october 1990, the secretary to the councir of the respondent informed the chairman of the Makerere Technicians Associations that the apperants had been moved from sarary scare M9 to M7.

10 on 20'h May 1991, the Estabrishment and Administration committee of the respondent's Senate requested Dr. Aber J. J. Rwendeire to prepare and submit a paper orr the craims by the apperants for discussion by the senate' Dr. Rwedeire submitted his paper on 10'h February 1gg2 recommending M5 scale, for the appellants.

15 By further letter dated 6th January 1993, the respondent,s secretary to council informed ail appeilants that they had been moved from sarary scale M7 to M6.

on 20th July 1ggg, the appe,ants appeared to the rnspector Generar of Government (lGG).

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On $22^{nd}$ November 2001, the respondent's acting secretary to council wrote to the IGG stating that the appellants were properly placed in M6.

On 30<sup>th</sup> April 2004, the appellants filed HCCS No. 323 of 2004, seeking orders for recovery of Shs 430,062,288/= being arrears of salaries and allowances as at 31<sup>st</sup> March 2004.

When the suit came up for hearing before the High Court the respondent raised a preliminary objection on a point of law that the suit was time barred. The learned trial judge sustained the objection and dismissed the suit but made no order as to costs.

This appeal is on the sole ground whether the learned trial judge erred in law and in fact in upholding the preliminary objection that HCCS No. 323 of 2004, was time barred.

At the hearing of this appeal, Mr. Joseph Balikuddembe represented the appellants while Mr. Andrew Kabombo and Ms. Esther Musiime were for the respondent.

### Submissions for the Appellants

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Learned counsel relied on his legal arguments of 10<sup>th</sup> August 2008, the 20 conferencing notes and the submissions in the High Court. It was stated

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that the trial judge failed to consider the respondents' admission of errors when they kept on moving the appellants from scale M6, M9 to M7 and from M7 to M6. By doing this they were conceding errors. The appellants received better salaries and more benefits. This amounts to an acknowledgement of liability under Section 22 of the Limitation Act (Cap.80).

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The cause of action did not arise in 1983 with the General Circular No. 631. The appellants were being moved up the ladder. The appellants were convinced by the respondents that scale M9 where they were supposed to be had been abolished. By taking the appellants from M9 to M7 and eventually to M6 the respondents were admitting errors, (Annex.12).

The Rwendeire report agreed with the recommendations of the Inspector General of Government (IGG) that the appellants should be placed in M5.

The learned judge ignored to consider all the foregoing. The cause of action did not arise in 1983 as the decision taken then was not final as the appellants were never left where they were then. The final decision was taken in 2001 when the respondent replied to the IGG in $22^{\tiny{\text{nd}}}$ November 2001. 'In short, the council found, as a fact that the affected appellants were properly placed in M6 scale (lecturer equivalent)'. The

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suit was filed in 2004. It was within three years time after final decision in 2001. The case, cited by counsel in his notes, of Peter Mangeni T/A Makerere Institute of Commerce V Departed Asians Property Custodian Board, SCCA No. 13 of 1995, is distinguishable on the ground that the respondent never made any part payment nor did the appellant conclude their negotiations as they thought the respondent would be conceding. In that case Kanyeihamba JSC, held that negotiations did not stop the appellant from filing the suit. Counsel prayed for the appeal to be allowed with costs.

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### Respondent's reply

Learned counsel adopted their submissions before the High Court. The respondents' act of shifting the appellants from scale M5 to M7 and to M6 salary scale is not an acknowledgement as required under the Limitation Act, nor is the respondent's shifting of appellants from scale M9 to M7 on 24<sup>th</sup> October 1999, and from M6 to M7 on 6<sup>th</sup> January 1993. The suit was filed in 2004, more than 6 years after the last act of acknowledgement. On 11th July 1994 there was communication by the Vice Chancellor that the appellant had been moved from M6 to M5 salary scale. This was not an acknowledgement as envisaged under

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Sections 22(4) and 23 of the Limitation Act, which concern recognition of a debt.

Paragraph 881, Halsbury's Laws of England, 4<sup>th</sup> Ed. Vol.28 states that an acknowledgement must be in writing and signed by the maker or his agent, but subject to these requirements it need not be in any particular form. No promise to pay is required. All that is necessary is that the debtor should recognize the existence of a debt or that the person who might rely on the statute of limitation should recognize the rights against himself. The court looks at the circumstances under $10$ which the document is written to determine whether it constitutes sufficient acknowledgement. The general decision did not have the effect of extending the date though the appellants kept on engaging the respondents.

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- According to Peter Mangeni T/A Makerere Institute of Commerce V 15 Departed Asians Property Custodian Board (supra) Kanyeihamba JSC held that negotiations are no excuse for not filing a suit while they are going on. The cause of action in the instant suit arose in 1983 when respondents allegedly introduced the M salary scale. - Halsbury's 4<sup>th</sup> Ed. Paragraph 622 states ........'a cause of action normally 20 accrues when there is an existence of a person who can sue and another

who con be sued, ond when there ore present ott the focts which ore moteriol to be proved to entitle the ptointiff to succeed''

a>

lil

Also see lga V Makerere University [1972] E'A 65 at 65' per Mustofo' JA:

,,where the suit is instituted ofter the expirotion of the period prescribed by the low of limitotion the ploint sholt show grounds upon which exception from such law is claimed""A ploint which is barred by limitotion is a ploint borred by law"""' lt is cleor to me thot unless the oppeltant in this cose had put himself within the limitotion period by showing the grounds upon which he could cloim exception the court shall reiect the cloim"

as in 1983 that the respondent introduced'M'salary scale' ore the contract was breached that year. The appeal ought to be sed.

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itation Act, Section 3(f) (a) [Cap. 80] stipulates that actions on contract or tort shall not be brought after the expiration of from the date on which the cause of action arose'

Nonetheless, the time can be extended in case of disability, acknowledgement, part payment, fraud and mistake.

Also see **O.7 rule 11** which states:

"Where the suit is instituted after the expiration of the period prescribed by law of limitation the plaint shall show the grounds upon which exception from such law is claimed"

The provision further states that a plaint filed in disregard of the prescribed limitation period shall be rejected, unless the appellant can show grounds upon which he can claim exception.

By their plaint of April 2004, paragraph 6(1) the appellants state that:

"By General Circular No. 631 dated 15<sup>th</sup> March, 1983 the defendant in conjunction with the Government of Uganda introduced the new salary structure for Makerere staff under M Scale ranging from M1 to M15 which was to apply to all Makerere University Senior and junior Members of Staff and it was during the implementation of the conversion exercise from U to M scale that the defendant's agents / servants wrongfully converted the plaintiff's U2 salary scale to M9

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# salorY scale thereby demotinq the plointi the Chief Technicions from beinq senior members of stoffinthe service of the defendant contrsrv to their soid Terms of Service"

The above was carried out as illustrated in the Conversion <sup>5</sup> Histogram herewith attached and marked "P5"' The said General Circular No. 63L of 15th March 1983 was marked Annexture "P6"'

The record indicates that the appellants were content to persist in complaining to the respondents about the wrongful action of demoting them, rather than taking a decisive action by going to court straight awaY. <sup>10</sup>

Paragraph 7 of the said plaint goes on to state:

"As a result of what is stated in the preceding paragraph' the plaintiffs complained about the defendant's said wrongful action of demoting them and in response the defendant conceded their error twice by removing the plaintiffs from M9 scale to M7 scale and then to M6 scale but surprisingly the defendant unreasonably refused to move the plaintiffs to the rightful M5 scale where they ought to be placed' <sup>A</sup> letter from the defendant dated 24th October' <sup>1989</sup> removing the plaintiffs from M9 to M7 scale and another

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dated 6<sup>th</sup> January, 1993 putting them in M6 scale are herewith attached. These were "P8" and "P9"."

It is clear as pointed out above the appellants were content on complaining. By 1993, the appellants had not achieved the M5 scale. This remained the position until the filing of this suit in 2004.

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For the appellants it was argued that by shifting the appellant from scale to scale, the respondents were acknowledging or conceding his errors in which case their actions / suit No. HCCS No. 323 of 2004 cannot be time barred.

It is not clear for how long the appellants thought the various acts of 10 conceding to errors would take before finally reaching scale M5. This in my view was not legal acknowledgement. It had nothing to do with placing them in scale M5.

$\boldsymbol{6}^{\text{th}}$ 1990, Edition, Dictionary, Law Black's According to 'acknowledgement' means:

".......to admit, affirm, declare, testify, a vow, confess, or own as genuine. Admission or affirmation of obligation of responsibility" The appellants seek to be placed in M5 scale which by paragraph 9 of

their plaint has not been achieved to date.

ln DW Moore & Co. Ltd and others V Ferrier and others (1988) 1 ALL ER 400 (CA) at 410 and 4tL, Birminghom U observed that limitation is governed by two rules:

The appellants'fortunes changed in 1983 by Circular No.631 of March 15th. The circular was the trigger for causing the salaries slide. The appellants were, however, content with complaining and soliciting extraneous help to resolve their problem. The Rwendeire Report of L0th February, 1992 followed by the recommendations of 18th October 1999 by the lnspector of General of Government (lGG) to parliament were all to the effect that the appellants should be placed in scale M5. These recommendations were rejected by the respondent. lndeed by their letter of 22nd November 2001, the respondent,s Council found as a fact that the appellants were properly placed on M6 scale (lecturer equiva lent).

<sup>&</sup>quot;First, that time runs against the claimant from the date when his cause of action accrues and when he suffers the damage caused......"

respondent was testing them out. They have only themselves to blame. I would thus have no option but to dismiss the appeal with costs.

Since My Lords A. Twinomujuni and A. S. Nshimye, JJA both agree, the appeal stands dismissed with costs.

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$10$

Dated at Kampala this.................................... A. E. N. MPAGI-BAHIGEINE DEPUTY CHIEF JUSTICE

| | <b>ERTIFIED TRUE COPY OF THE ORIGINAL</b> | | |--|----------------------------------------------------|--| | | | | | | Registrar of the <b>Sourt of appeal Uganda</b><br> | | | | | |

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

<sup>e</sup>observation by Konyeihombo JSC in lga's case [supra] is apposite:

"l agree with Mr. Sekandi that on offer to negotiote terms of settlement between porties to an oction, admiroble as it moy be, hos no effect whotsoever on when to serve stotutory notice or file <sup>o</sup>suit in time. lt is my opinion thot even when genuine and octive negotiotions ore going on or contemploted between the porties, it is still incumbent upon those who need to file documents to do so within the time ollowed. Thereofter, they ore at tiberty to seek adiournments for purpose of negotiotions,,.

ln fact had the appellants filed suit immediately it would have given them leverage to negotiate from a vantage position. The appellants allowed themselves to be kept in suspense indefinitely while the 20

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#### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## CORAM: HON. JUSTICE A. E. N. MPAGI-BAHIGEINE, DCJ HON. JUSTICE A. TWINOMUJUNI, JA HON. JUSTICE S. B. K. KAVUMA, JA

#### CIVIL APPEAL NO.11 OF 2008

#### **CHARELES LUBOWA & OTHERS ....................................** $15$

### **VERSUS**

## MAKERERE UNIVERSITY....................................

$20$

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$10$

[Appeal from the decision of the High Court of Uganda at Kampala by His Lordship Hon. Justice V. A. R. Rwamisazi Kagaba dated the 25<sup>th</sup> day of July 2007 in the High Court Civil suit No.232 of 2004]

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### JUDGMENT OF HON. JUSTICE A. TWINOMUJUNI, JA

I have had the advantage of reading in draft the judgment of the Deputy Chief Justice, Hon. Justice A. E. N. Mpagi-Bahigeine. I concur and have

nothing useful to add. 30

> Dated at Kampala this $\frac{V}{V}$ ..........day of $\mathbb{R}^2$ 2011.

> > 1

Hon Justice & Assimonajuni

USTICE OF APPEAL.

CERTIFIED TRUE COPY OF THE ORIGINAL appeal Uganda

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA

## AT KAMPALA

## CIVIL APPEAL NO. 11 OF 2008

Appeal from the decision of the High Court of Uganda at Kampala by His $\Big]$ Lordship V. A. R Rwamisazi Kagaba dated the 25<sup>th</sup> day of July 2007 in the High Court Civil suit NO. 232 of 2004.

CHARLES LUBOWA & 4 OTHERS ::::::::::::::::::::::::::::::::::::

**VS**

MAKERERE UNIVERSITY::::: :::::::::::::::::::::::::::::::

Hon Justice A. E. N Mpagi Bahigeine, JA Coram: Hon Justices A. Twinomujuni, JA Hon A. S. Nshimye, JA

### JUDGMENT OF HON JUSTICE A. S. NSHIMYE, JA

I have had the advantage of reading in draft the judgment of the Hon Deputy Chief Justice A. E. N Mpagi- Bahigiene.

I agree that the trial judge was right in dismissing the suit because it was time barred. The appeal therefore ought to fail with costs to the respondent as proposed.

**Dated** at **Kampala** this $\mathcal{O}$ this day of $\mathcal{O}$ .......................................

**NSHIM** JUSTICE OF APPEAL