Nyakana v Attorney General (Civil Suit 306 of 2011) [2024] UGHCCD 99 (4 June 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (CIVIL DIVISION)**

## **CIVIL SUIT NO. 306 OF 2011**

**NYAKANA DUNCAN :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF**

#### **VERSUS**

**ATTORNEY GENERAL :::::::::::::::::::::::::::::::::::::::::::::::::::::::: DEFENDANT**

## **BEFORE: HON. JUSTICE BONIFACE WAMALA**

#### **JUDGMENT**

### **Introduction**

[1] The Plaintiff brought this suit against the Defendant seeking compensation and payment for medical expenses, general damages, exemplary/punitive damages, interest and costs of the suit arising out of wrongful arrest, false imprisonment/ unlawful detention, torture, assault and defamation that occurred at the Central Police Station(CPS) Kampala.

[2] The brief facts according to the Plaintiff are that sometime in January 1995, the Plaintiff was approached by Herbert Itongwa and Joseph Lusse who intended to bomb some hotels in the City Centre and asked for his assistance in organizing the bombings. The Plaintiff passed on the information to the then Director General of Internal Security Organisation and accordingly made a statement at Kampala CPS where he was detained and kept incommunicado for two weeks. He was taken to room 7 at CPS where he met Joseph Lusse, one of the persons he had reported in the company of another police officer named Wandera. Wandera grilled the Plaintiff as to why he had betrayed them. The Plaintiff was then beaten to near comma. About one month later, he was produced in court and charged with treason but the prosecution did not go ahead upon protest by the State Attorney that the Plaintiff was the lead witness for the state. The Plaintiff was released without charge on 9th March 1995. The Plaintiff stated that while in detention, he suffered a fractured spinal code and is now permanently deformed as he is a hunch back. Medical examination revealed that the condition suffered by the Plaintiff required treatment in Great Britain. The Plaintiff attributed all his injuries and sufferance to the reckless, cruel and wanton acts of the members of the Uganda Police Force; for which the Defendant is vicariously liable.

[3] The Defendant filed a written statement of defence (WSD) denying the Plaintiff's claims and stated that the Plaintiff was arrested for just and probable cause on suspicion of treason. The Defendant stated that the Plaintiff had already been paid an ex –gratia payment in the sum of UGX 86,800,000/= in an out of court settlement at the behest of the Plaintiff. The Defendant prayed for dismissal of the suit with costs.

#### **Representation and Hearing**

[4] At the hearing, the Plaintiff was represented by **Mr. Peter Kimanje Nsibambi, Mr. Norman Pande** and **Mr. Cornelius Ssentamu Mukiibi** while the Defendant was represented by **Ms. Charity Nabassa**, a State Attorney from the Chambers of the Attorney General. Counsel made and filed a Joint Scheduling Memorandum. Evidence was adduced by way of witness statements. The Plaintiff led evidence of two witnesses while the Defendant did not produce any witness. At the conclusion of the hearing, the parties' counsel made and filed written submissions which have been considered by the Court in the determination of the issues before the Court.

#### **Issues for Determination by the Court**

[5] Four issues are up for determination by the Court, namely;

a) *Whether or not the Plaintiff's cause of action is barred by limitation?*

*b) Whether or not the actions of the police amounted to wrongful arrest, false imprisonment/unlawful detention, torture, or assault?*

*c) Whether the Defendant is liable for the said actions against the Plaintiff?*

*d) Whether the Plaintiff is entitled to the remedies sought?*

## **Burden and Standard of Proof**

[6] In civil proceedings, the burden of proof lies upon he who alleges. Section 101 of the Evidence Act, Cap 6 provides that;

*"(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts exist.*

*(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person"*.

[7] Section 103 of the Evidence Act provides that the *"burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person"*. Accordingly, the burden of proof in civil proceedings normally lies upon the plaintiff or claimant. The standard of proof is on a balance of probabilities. The law however goes further to classify between a legal burden and an evidential burden. When a plaintiff has led evidence establishing his/her claim, he/she is said to have executed the legal burden. The evidential burden thus shifts to the defendant to rebut the plaintiff's claims.

#### **Resolution of the Issues**

## **Issue 1: Whether or not the Plaintiff's cause of action is barred by limitation?**

#### **Submissions by Counsel for the Plaintiff**

[8] Counsel for the Plaintiff cited the provisions of section 3(1) of the Limitation Act to the effect that an action founded on contract or tort to recover damages in respect of personal injuries should not be brought after the expiration of six years from the date on which the cause of action arose. Counsel submitted that the cause of action arose around or about 1995 and the Plaintiff should have filed the case by the year 2001 but could not because he was undergoing medical treatment. Counsel also stated that in 2005/2006, the Defendant made an ex gratia payment to the Plaintiff with the effect that it was an admission of liability which revived the cause of action. Counsel further submitted that section 22(4) of the Limitation Act provides that acknowledgement by the defendant to the plaintiff's rights or the defendant making a part payment will revive the cause of action and argued that the making of a part payment by the Defendant herein revived the cause of action and the date started running from the date of the part payment.

#### **Submissions by Counsel for the Defendant**

[9] It was submitted by Counsel for the Defendant that Order 7 rule 11(a) and (d) of the CPR requires rejection of a plaint where the suit appears from the plaint to be barred by law. Counsel submitted that Order 7 rule 6 CPR requires that a plaint shows the grounds upon which exemption from the law is claimed where a suit is instituted after the expiration of the period prescribed by the law of limitation. Counsel cited the case of *Uganda Railways Corporation v Ekwaru D. O & Others, CACA No. 185 of 2007 [2008] HCB 61* to the effect that a plaint must be rejected if a suit is brought after the expiration of the period of limitation and no grounds of exemption are shown in the plaint. Counsel

submitted that the Plaintiff in this case did not plead any exemption from the limitation provision or disability as required by law but rather submitted over the same from the bar.

[10] Counsel for the Defendant further submitted that the Plaintiffs' claims is not in any of the categories under section 23 of the Limitation Act where acknowledgement and part payment could renew a cause of action; since the provision is limited to actions founded only on recovery of land, right of a mortgagee of personal property to bring a foreclosure action in respect of property, recovery of debts or other liquidated pecuniary claims and claims to personal estate of a deceased person. Counsel argued that even if the Court was to take the Plaintiff's suggestion that the cause of action arose in 2006, the suit will still be barred by limitation.

#### **Determination by the Court**

[11] The position of the law is that once a claim is caught up by time limitation, the same is barred by law and cannot be entertained by the court except where the party seeking to institute a claim can take advantage of any of the exceptions set out by the limitation statute. In such a case, the party has to bring an action itself and plead that they are relying on that particular exception. The provision under Order 7 rule 6 of the CPR is clear to that effect. It provides as follows;

*"Grounds of exemption from limitation.*

*When a suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show grounds upon which exemption from such law is claimed''*.

[12] It follows, therefore, that where the plaintiff has grounds for bringing the suit after expiration of the period of limitation, he or she must show exceptional cause in the pleadings themselves. The period of limitation in the present case is set out under Section 3(1)(d) of the Limitation Act Cap 80. The provision under Section 3 of the Act provides as follows;

*"Limitation of actions of contract and tort and certain actions.*

- *(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 tort;* - *(b) actions to enforce a recognizance;* - *(c) actions to enforce an award;*

*(d) actions to recover any sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture; except that in 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 independently of any such contract or any such provision) where the damages claimed by the plaintiff for negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to any person, this subsection shall have the effect as if for the reference to six years there were substituted a reference to three years.''* [Emphasis added]

[13] Section 21 of the Limitation Act Cap 80 provides for exceptions to the foregoing limitation. Under that section, a party gets excepted to the application of section 3 above if he or she can prove that they were prevented from bringing the suit within time on grounds of disability. Section 21(2)(b) of the Act goes further to indicate that for the exception under disability to apply, the plaintiff has to prove that at the time when the cause of action accrued to him or her, he or she was not in custody of a member of his or her family. This envisages that if he/she was in custody of a family member, the suit ought to have been brought on his/her behalf by such a family member in case of a disability on the part of the plaintiff. This, in my view, is testimony to how serious the law treats the question of time limitation.

[14] Section 1(3) of the Limitation Act provides that *"For purposes of this Act, a person shall be deemed to be under a disability while he or she is an infant or of unsound mind"*. In the case of *Gastapo Co. Ltd v Attorney General, HCCS No. 030 of 2021*, Mubiru J held that a plaintiff is under disability for the purposes of the Civil Procedure and Limitation (Miscellaneous Provisions) Act if he or she is a minor under the age of eighteen years, declared mentally incompetent or under other legal disability rendering him or her incapable of the management of his or her affairs due to the impairment of his or her physical condition or because of disease or other impairment of his or her mental condition.

[15] It is settled law that unless where the particular statute states so expressly, the court has no residual power to extend time set by an Act of Parliament. It is further the position of the law that a limitation statute is strict in nature and inflexible and is not concerned with the merits of the case. Noncompliance with the limitation period renders the suit a nullity. See: *Hilton v Sutton Steam Laundry [1956]1 KB 73* cited with approval in *Madhvani International SA v AG, SCCA No. 23 of 2010.* In *Hilton v Sutton Steam Laundry (Supra)*, Lord Greene M. R at p. 81 stated thus;

"*But the statute of limitation is not concerned with merits. Once the axe falls, it falls, and a defendant who is fortunate enough to have acquired the benefit of the statute of limitation is entitled, of course, to insist on his strict rights''*.

[16] In this case, the suit was brought after the prescribed time of three years under Section 3(1)(d) of the Act. Even if the Court was to make reliance to Section 3(1)(a) of the Act, the matter was brought after the expiration of the period of six years. The Plaintiff's Counsel states in their submissions that the Plaintiff did not file the suit in time because he was undergoing treatment and that the cause of action was renewed in 2005/2006 when the Defendant made an ex-gratia payment to the Plaintiff which was an admission of liability. This claim cannot succeed for a number of reasons. First, it comes to Court by way of evidential statements from the bar which are unacceptable. Secondly, and as underscored above, it is a legal requirement under Order 7 rule 6 of the CPR that any such disability is pleaded in the plaint. The plaint in this case contains no such pleading relating to the plaintiff's disability to bring the suit in time. Thirdly, Section 21(2)(b) of the Limitation Act imposes a requirement upon the plaintiff to prove that he was not in the custody of a family member when the cause of action accrued. No such plea was also included in the plaint. It is envisaged under the law that if the plaintiff was in custody of a family member, his legal needs would have been adequately catered for and may not take benefit of the ground of disability.

[17] The Plaintiff's Counsel further raised a claim that the cause of action was renewed by the ex-gratia payment made to the Plaintiff by the Defendant in 2005/2006. This claim is also bound to fail on two grounds. One is that as submitted by Counsel for the Defendant, the Plaintiff's claim is not one of those falling in the categories set out under Section 23 of the Limitation Act in respect of which acknowledgements and part payments may renew causes of action. Sections 22, 23 and 24 of the Limitation Act on fresh accrual of action on acknowledgement or part payment are applicable to actions to recover land or any right of a mortgagee of personal property to bring a foreclosure action. The claims in the instant case are based on tortious liability which do not fall under the category of claims envisaged under the above stated provisions. The argument by the Plaintiff's Counsel in this regard is therefore devoid of merit.

[18] The second reason as to why the said argument would still fail is that in law, an ex-gratia payment is a payment without consideration of the legal merits and it assumes that the person settling it is not legally liable for the payment. See: *Specioza Kalungi & Others v Attorney General & Anor, HCCS No. 63 of 2008*. Given this legal position, it is unlikely that the payment to the Plaintiff by way of ex-gratia by the Defendant in 2005/2006 would be capable of being construed as an acknowledgment or part payment as to lead to accrual of a new cause of action so as to occasion an extension of the limitation period.

[19] In all, therefore, this suit is barred by law under Section 3(1) of the Limitation Act and is accordingly dismissed on account of the legal bar. The merits of the suit are, therefore, incapable of being explored. Regarding the costs of the suit, the law under Section 27 of the Civil Procedure Act Cap 71, is that costs follow the event unless, for good cause, the court decides otherwise. In this case, it is clear that the Plaintiff suffered some legal violations at the hands of security agencies. The same could not be proved and determined because of a legal bar. I find this a case where no costs should be awarded against the Plaintiff. I therefore order that each party shall bear their own costs of the suit.

It is so ordered.

*Dated, signed and delivered by email this 4th day of June, 2024.*

**Boniface Wamala JUDGE**