Okeema Willy v Jackson Musiko (HCCS NO 26/06) [2010] UGHC 237 (23 March 2010)

## **REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT NAKAWA**

# **HCCS NO 26/06(FROM CS NO 326/04 NAKAWA COURT)**

**OKEEMA WILLY APPELLANT**

**VERSUS S**

**JACKSON MUSIKO RESPONDENT**

### **BEFORE HON LADY JUSTICE FAITH MWONDHA**

#### **JUDGMENT**

This is an appeal brought before me by Counsel for the appellant MS Ruyondo 'and Co Advocates. The appellant appealed against the decision of Magistrate Grade <sup>I</sup> Her Worship Agnes Nkonge dated <sup>1</sup>9th May 2006 in Civil Suit No 326/2006. There were four grounds of appeal as embodied in the memorandum of appeal as hereunder;

- **\* 4** ]. That the learned trial Magistrate erred in law in dismissing the case for being time barred as raised by the respondent counsel in submissions that should have been a Preliminary Objectiq - <sup>2</sup> That the learnea trial Magistrate errea at both law and^ deciding on the substantive issue involved in the case an\$

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going ahead to dismiss it on grounds of being barred in law by time.

- 3. That the learned trial Magistrate erred at both law and fact in holding the cause of action to be time barred. - **5** S 4. That the learned trial Magistrate erred at both law and fact in dismissing the whole suit on the basis of holding one of the different cause of action in the whole suit to be time barred.

The appellant therefore prayed that;

- a. The appeal may be allowed. - o b. The judgment and awards in the lower court be set aside c. Costs for the appeal and lower court be provided for.

**<sup>&</sup>gt;** )5 At the hearing of the appeal on the 24/02/10 both counsels and both parties were present. They were directed to file written submissions and a time table was made to that effect. The appellant was to file the submissions by 04/03/10. The respondent was supposed to reply and file by 11/03/10 and the appellant was to make a response if there was need by 15/03/10 and judgment was reserved till 23/03/10 at 10:00am. Both parties did the needful hence this judgment.

**10 2D** The .duty of the first appellate court its trite taw is to scrutinize and evaluate the evidence on record a fresh in order for if to come up with its own independent decision. <sup>I</sup> had the duty therefore to peruse the pleadings on record, the proceeding and the judgment


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of the lower court. From the pleadings i.e. the plaint its very clear that this was a civil filed in 2004 and in paragraph 3, the plaintiff claim against the defendant was for compensation of properties grabbed and disposed of and others destroyed at his video hall by. the defendant. It was for damages and cosls related there to. He also sought compensation for medical expenses for his treatment following his having been assaulted by the defendant.

In paragraph 4 of the plaint the facts which constituted the cause of action were;

- **IG 10** a. That the defendant long before 17th August 1998 denied the plaintiff use of video hall structures and took control and use of it himself. - **<sup>15</sup> <sup>15</sup>** b. That on 17th June 1998 at Soweto, Namwongo Bukesa Parish Makindye in Kampala, the defendant and another one LDU Mutyaba assaulted the plaintiff as he brought down the video hall structure occasioning bodily harm and case No 0684 of 1999 was commenced against defendant and verdict was made against him (he attached the copy of the judgment) marked as Annexure A. - **AD** ao \* c. That on 21/08/2001 the plaintiff was told that the defendant . who had finished serving his sentence had destroyed the video hall structure and disposed of other properties useci in the business such as electrical and furniture. He stated that the subject value of the suit and properties destroyed was

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500.000/=+350.000/= plus the medical bills. That he tried to ask the defendant to compensate him but he refused. He therefore prayed that judgment be entered in his favor against the defendant for

a. Special damages 850.000/=

- **<sup>10</sup> Io** b. General damages for loss suffered due to business coming to a stand still and for losses in movements while going for medication as well as days spent without working as he was nursing bruises. He prayed for interests and costs. - From the above facts the issues at the trial court were identified as follows; - 1. Whether the defendants was liable. - 2. What remedies are available. - **>** <5 **"I<sup>d</sup>** clear. Though' the issues were that short <sup>I</sup> believed that the first issue was inclusive i.e. whether the defendants was responsible for breaking down the temporary structure which was a video hall and therefore was liable in damages and compensating him for the expenses he incurred in construction of the same and expenses suffered for his treatment after the assault. S.101 and 102 of the Evidence Act are

The burden was on the plaintiff to prove his case on a balance of probabilities to show that the facts he pleaded existed. From the

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testimony of the plaintiff and his witness they brought evidence to show that PW1 constructed the structure long before 1997. That he went away briefly but when he came back in 1998 the defendant had taken over the structure having been erected on his land temporary while the plaintiff was paying rent. When the plaintiff complained to the authorities he was advised to remove his structure and that was in 1998.

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dical **JO** '□0 When the defendant saw the plaintiff removing the structure he brought various men and they together assaulted the plaintiff. A criminal case was opened up at police and the defendant was charged and was convicted in 2001 for assault. The judgment was attached on the plaint. The defendant was claiming that the structure was his but the evidence of PW2 and PW3 provided undiscredited evidence that it was the plaintiff who constructed it. The defendant beat the plaintiff/appellant after the plaintiff had reported the case of the respondent refusing to surrender the hall to police and police had advised him to go and collect his property and recover other properties. He prayed for compensation totaling to 500.000/= which he used to put up that structure. The equipment was worth 300.000/=. That he incurred 300.000/= for his treatment. That his teeth were almost falling apart. He tendered medical documents as exhibits El, E2, E3 and there was no objection. He prayed that he be awarded damages since he was losing 10.000/= per day he was not working.

PW2 was very emphatic on how they started to do business at the \ defendants place. That both him and the plaintiff requested the defendant to allow them to construct the temporary structure and he agreed. When they finished constructing they started operating a video there. That one Martin and one Senganda were working with them but they disappeared when the deck was stolen. He also said that when the deck was stolen the defendant requested them to be using the hall but when they got another deck and they wanted to use the hall the defendant refused to give the hall back to them. That the plaintiff went and reported at police and police advised him to recover his properties. It was at this time that the defendant organized some 15 men who came and attacked them and they beat them up. This resulted into the assault.

The plaintiff produced medical documents which were tendered and marked as E4 dated *'25IQ6/99,* E5 dated 31/01/2000, E7 dated 17/06/98 and E9 dated 19/11/99. The defendant stated that the plaintiff used to be his tenant up to 1997 June and that he used to rent a video hall. He denied having assaulted the plaintiff. He claimed to have built the video hall and that he had got another o tenant when the plaintiff started claiming that he built it. He said that it was the plaintiff who started breaking the hall and then the chairman brought LDUs. DW2 who was chairman LCI stated that the video hall belonged to the defendant then DW3 stated that he is the one who constructed the video hall.

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After careful evaluation of the evidence on record as briefly summarized, <sup>I</sup> found that the issue of limitation came in as an after thought by the submission of counsel for the defendant (respondent). The trial Magistrate used these words and <sup>I</sup> quote, "This court has carefully heard and considered the evidence on record and submissions by both counsel and finds that learned counsel for the defendant has raised an important issue of limitation which this court has to consider before it can resolve the agreed issues."

Io *5* **IS** The provision relied on was S.3 pf the Limitation Act. Despite the arguments of counsel for the plaintiff who argued that the cause of action arose/ commenced after the date of the criminal case judgment on 22/08/2001 rather than when the assault took place as the plaintiff could not sue when there was a pending criminal case. The trial court said she totally disagreed with the submissions of the plaintiff and went further to say that the cause of action arose in 1998 hence this suit ought to have been filed by June 2004. That since the case was filed on 20/08/2004 the claim was time barred. She therefore dismissed the claim on the basis of limitation.

**20** *'2£>* It was unfortunate that the trial Magistrate failed completely to evaluate the evidence on record and failed miserably to apply the lawS.21 of the limitation ought io have been recorded together with S.3. This provision is for extension of limitation period in^case of disability. The evidence on record which is not disputed is that the plaintiff was attacked in 1998 and he was injured which forced him

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**s to** I|5 15 to have medical attention and report the matter to police. The ; defendant was charged in the courts of law for assault and was convicted and sentenced. These facts for all purposes and intents constituted a disability since the person he was going to sue was undergoing criminal trial proceedings over the crimes he committed against the state and cause him injuries. The plaintiff/appellant was also undergoing treatment. How could he have sued him? It comes out so logically and legally that there is no way the cause of action would have risen in 1998 to file the suit as there was the disability as stated above for purposes of filing the suit. For avoidance of doubt S.21 (i) provides that "if on the date when any right of action atoned for which a period of limitation is prescribed by this Act, the person to whom it accrued was under a disability, the action may be brought at any time before the expiration of 6 years from the date when the person ceased to be under a disability or... not withstanding that the period of limitation has expired..."

The trial Magistrate ignored the provisions of Article 126 2(e) of the Constitution which provides for not administering justice without undue regard to technicalities which in this case the technicalities were non existent. <sup>I</sup> could not find merit in counsel for the respondent submissions, even the laws citied could not support the submissions.

From the above foregoing it's apparent that the learned trial Magistrate erred in law and fact to dismiss the suit on an illusion that the same was time barred by law. The evidence on record is

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overwhelming and it proved on a balance of probabilities that the defendant was liable to the appellant in respect of compensation and damages.

Accordingly the appeal succeeds on all the four grounds raised and enters judgment in favor of the plaintiff/appellant against the defendant respondent as prayed in the plaint i.e. to say

- **1**. The appeal is allowed. - 2. Judgment of the lower Court and Orders and awards set aside. - 3. Costs of this appeal and the.court below provided for. - **<sup>i</sup> lo** 4. Interest of 6% on the special damages prayed for of 850.000/=. running from the date of filing the appeal. - 5. General damages of 2.000.000/= for loss, pain and suffering.

**<sup>C</sup>'.< t< pj'b** '23/03/10 . **Judge**

R. A explained.

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