Mangeni v Departed Asians Property Custodian Board (Civil Appeal 13 of 1995) [1998] UGSC 31 (22 January 1998)

Full Case Text

#### REPUBLIC OF UGANDA

#### IN THE SUPREME COURT OF UGANDA

#### AT MENGO

(CORAM: TSEKOOKO, J. S. C., KANYEIHAMBA, J. S. C., MUKASA-KIKONYOGO, J. S. C.)

# CIVIL APPEAL NO: 12 OF 95

BETWEEN

PETER MANGENI t/a MAKERERE INSTITUTE OF COMMERCE ~~~ ~- APPELLANT

AND

DEPARTED ASIANS PROPERTY CUSTODIAN BOARD ... $-$ --RESPONDENT

> (Appeal from the ruling and orders of the High Court of Uganda at Kampala (Mukanza, J.) dated 23rd November 1994 in Civil Suit No. 422/1994)

JUDGMENT OF TSEKOOKO, J. S. C:

I have had the benefit of reading the draft the judgment of Kanyeiamba, J. S. C.

This is an appeal against the ruling and orders of Mukanza, J. On 23/11/94 the learned judge dismissed the appellant's suit because the suit is time carred by virtue of the provisions of the Civil Procedure And Limitation (Miscellaneous Provisions) Act, 1969 (Act 20 of 1969).

The facts of the case as gathered from the record of the proceedings in the Court below are these. The applicant, Peter Mangeni, operated an Unicorporated educational business under the style or name Makerere Institute of Commerce. He operated the business in a building belonging to the respondent situate at Plot 399 Sekanyolya Road, Kampala. The facts appear to suggest that he was not a direct tenant of the Respondent. About 1988 the respondent appears to have discovered this anomaly and so the respondent lant required the appellant to vacate the building (hereinafter referred to as Suit premises). The appellant never vacated the suit premises voluntarily. On $\frac{29}{3}/1989$ , the respondent used its enforcement officer to evict the appellant from the suit Dre. mises, seized his required the appellant to vacate the building (here

inafter $\cdots$ ./2.

inafter referred to as Suit premises). The appellant never vacated the suit premises voluntarily. On 29/3/1989, the respondent used its enforcement officer to evict the appellant from the suit premises, seized his property and equipment or property and equipment belonging No Makerere Institute of Commerce and had the appellant arrested by the police. The police took the appellant to court and charged him with some offences. On 2nd October, 1992 the Director of Public Prosecutions (D. P. P.) withdrew the Criminal charges from the appellant (see D. P. P's letter of $2/10/1992$ ). This was followed by negotians between the appellant and the respondent. As a result of the negotions and through the intervention of the Inspector General Government, some of the appellant's properties and equipments were restored to him on or about 6th January 1993. Thereafter the appellant served the respondent with Notice of Intention to sue the respondent seeking to recover the balance of his properties and equipment and for damages. He did not file the suit until $21/6/1994$ .

When the case came up for hearing the respondent who was the defendant in the court below raised objections to the suit on a number of grounds. The objection which was sustained by the learned judge and which is material to this appeal was that the suit was filed out of time because of the provisions of Section 2(a) and 2(c) of Act 20 of 1969. This is because the learned judge held that the cause of action was founded on tort and that the cause of action accrued on $6/1/1993$ when the respondent restored some properties and equipment to the appellant.

The appellant has appealed against the ruling and order of the judge.

The Memorandum of Appeal contains two objections, namely;

The learned trial judge erred in law and in fact when he dismissed the appellant's case on an interlocutory application that the suit was time barred.

2. The learned trial judge misdirected himself and/or failed to properly evaluate evidence when he held that the case was not filed within the limitation period having noted that as late as October 1993 the respondent was inviting some relevant authorities for a meeting to Makerere Institute of Commerce, and that the appellant had every reason to hold and wait for the outcome of the discussion therefore, as an attempt to settle out of court.

In my opinion these two grounds refer to the same thing which is whether or not the suit was time barred.

Mr. Nagemi, counsel who represented the appellant before us and in the Court below, agrees that some of the properties and equipment of the appellant were restored to him on 6/1/1993 after which the appellant served the Notice of Intention to sue the respondent. Learned Counsel, however, contended that because of a letter reference BAC/5/50/SEKA dated 27/10/1993 written by the respondent to the previous advocates of the appellant inviting the appellant to a meeting, the period between 6/1/1993 to 27/10/1993 was postponed or suspended till after 27/10/1993. He cited African Overseas Trading Co. vs Acarya (1963) E. A. 468 and Shariff & Co. vs Chotai Fancy Store (1960) E. A. 374 to support his argument. With respect I do not find these decisions helpful. Mr. Nagemi half-heartedly urged us to hold that the doctrine of mistake applies in this case. because of Section 5(c) of Act 20 of 1969.

Mr. Ssekandi, for the respondent, contended, quite rightly in my view, that the letter of 27/10/1993 is valueless. He submitted in effect that the doctrine of mistake was never pleaded in the plaint and so cannot be raised now. He further contended that the letter of 27/10/93

did $\cdots$ /4

did not suspend the time from running. Learned Counsel supported the ruling and orders of the trial judge.

$L_1$

The letter of $27/10/1993$ was annexed to the plaint and marked as "E". It reads as follows:

> "DEPARTED ASIANS' PROPERTY CUSTODIAN BOARD (ESTABLISHED UNDER DECREE NO. 27 OF 1973)

Your Ref: $AO/DO4/93$

Our Ref: BAC/5/50/SEKA

P. O. BOX 579, Tel: $231719/2/3$ Kampala. Uganda.

27th October 1993.

$5$ $\cdots$

M/S Ayena-Odongo & Co. Advocates, Plot No. 4 Parliament Avenue, P. O. Box $10396$ , Kampala.

Dear Sirs,

RE: PROPERTY BELONGING TO MAKERERE INSTUTUTE OF COMMERCE.

In response to your letter dated 20th October, 1993, this is to invite you to a meeting to be held at 10.00 a.m. on Friday 29th October, 1993 in the DAPCB Board-Room. By copy of this letter the under-mentioned are also requested to attend.

Yours faithfully,

Ruth Namirembe@Olijo (Mrs) FOR: AG. EXECUTIVE SECRETARY.

| $c \cdot c :$ $C \cdot C$ : | Property Management Division Manager Assistant Manager (Property Management) | | |--------------------------------|---------------------------------------------------------------------------------|---------------| | $C \cdot C$ : | O/C CID/Custodian Board". | $\mathcal{L}$ | | RNO/cln. | | |

I agree with Mr. Ssekandi that this letter does not suspend the period of limitation from running against the appellant. The learned trail judge considered limitation period at pages 6 and 7 of his judgment in the following words:-

"According to the pleadings it is clear that when the goods were seized in 1989 the plaintiff was at the same time arrested and detained and the charge was only withdrawn in 1990. During that period of disability he could not sue and I do not subscribe to the submission of Mr. Maloba that the plaintiff never raised disability in his pleadings. From 1990 to January 1993 there was amove on the part of the Inspector General of Government to see to it that the defendant delivers back all the goods seized from the plaintiff see Annexture C. The defendant complied by deliverry of just part of the goods claimed by the plaintiff. That was on 6th January, 1993. Even as late as October, 1993 the defendant was inviting some relevant authorities for a meeting to discuss about the property belonging to Makerere Institute. The letter is dated 27th October 1993 Annexture "E". The plaintiff had every reason to hold and wait for the outcome of the discussion though the letter was apparently not copied to him. I am therefore agreeable with Mr. Nangeni that the cause of action arose on 6th January 1993 when the defendant did not deliver all the goods seized from the plaintiff by the defendant's servants and or employees. The defendant admits in his written statement of defence that he was served with statutory notice of sixty days as prescribed by Section 1 of Act 20 of 1969. The plaintiff could not do that before 6th January 1993. The case should have been filed sixty days aftery the statutory period of 60 days in March 1993 but the same was filed on 21st January (si@) 1994 well after the 12 months.

$I$ ..... $/6$

I have looked at Section 4 of Act 20 of 1969 which deals with extension of the limitation period in case of disability. The plaintiff was not under disability from 6th January 1993 so as to extend his period within which he should have filed this action nol did Section 5 of Act 20 1969 assist him.

I was also referred to the limitation Act by Mr. Nageminthat the action was not time barred because six years have not elapsed with effect from January, 1993 and that the action would be time barred by the year 1998. The learned Counsel had in mind Section 4(4) of the Limitation Act Cap. 70 which says Actions shall not be brought after the expiration of six years from the date on which the cause of action arose founded on tort or contract) This is applicable to torts against the world in rem but in the instant case we are concerned with an action for tort brought against scheduled corporation. See Section 2(a) and (c) of Act 20 of 1969".

The date in the last sentence of the third last paragraph reading "21st January 1994" must be a typing mistake. It should be 21st June 1994, as the rest of the proceedings indicate.

The relevant provisions of Section 2(1) of Act 20 of 1969 state -"2(1) No action founded on tort shall be brought against,

- ............... $(a)$ - (b) $...$

(c) a scheduled coproration, after the expiration of twelve months from the date on which the cause of action arose". The rspondent is a scheduled corporation. Therefore the above provisions apply to this case. Se

Section 4 of the same Act reads -

"4 If on the date when any right of action accrued for which a period of limitation is presecribed by this Act the person to whom it accrued was under disability, the action may be brought at any time before the expiration of twelve months from the date when the person ceased to be under disability or died, whichever event first occurred, notwithstanding that the period of limitation had expired".

None of the provisions of the provisions to this Section is relevant to this case.

The relevant provisions of Section 5 read -

"5Where, in the case of any action for which a period of limitation is prescribed by this Act, either,

- $(a)$ - $(b)$ .................................... - (c) the action is for relief from the consequence of a mistake,

the period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake, as the case may be, or could with reasonable deligence have discovered it."

I have not been able to see where Mr. Nagemi pleaded. Mistake in the plaint nor did he raise it in the court below. I cannot therefore consider it here. Even if I were to consider it, as I understand that doctrine I think that the facts upon which Mr. Nagemi seeks to relay on the doctrine of Mistake under Section 5(c) of Act 20 of 1969 are too vague and insufficient to support his client's case. In any case Mistake was not a ground of appeal.

$\overline{7}$

The $\cdots$ /8

The learned judge considered relevant provisions Act 20 of 1969. I am unable to fault the conclusions of the trial judge on the issue of limitation period. I think, with respect, that the learned judge was right in holding that the suit was filed out of time. I think, therefore, that the two grounds of appeal must fall.

I would dismiss this appeal. I would award the costs of the appeal to the respondent.

As Kanyeihamba, J. S. C., and Mukasa-Kikonyogo, J. S. C. also agree it is so ordered.

Delivered at Mengo this day ...................................

The legistrar, Sup Court, is directed to deliver the jugarents for Court, is directed to deliver

# THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA AT MENGO

(CORAM: TSEKOOKO, J. S. C., KANYEIHAMBA, J. S. C., MUKASA-KIKONYOGO, J. S. C.) CIVIL APPEAL NO SO OF 95

#### BETWEEN

PETER MAGENI t/a MAKERERE INSTITUTE OF COMMERCE ... APPELLANT

# AND

DEPARTED ASIANS PROPERTY CUSTODIAN BOARD **RESPONDENT** $...$

> (Appeal from the ruling and orders of the High Court of Uganda at Kampala (Mukanza, J.) dated 23rd November 1994 in Civil Suit No. 422 of 1994)

## JUDGMENT OF MUKASA-KIKONYOGO, J. S. C.

I have had the benefit of reading in draft the judgment of Tsekooko, J. S. C. and I concur with his reasoning and the conclusions reached. I have nothing more to add.

Dated at Mengo this 22nd day of January 1998.

tamp L. E. M. Mukasa-Kikonyogo, Justice of Supreme Court.