Semwatika Kibirango v Makerere University (Civil Suit No. 198 of 2009) [2014] UGHCCD 845 (10 July 2014)

Full Case Text

### THE REPUBLIC OF UGANDA

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

# CIVIL DIVISION

## CIVIL SUIT NO.198 OF 2009

# WILLIAM SEMWATIKA KIBIRANGO tl It PLAINTIFF

#### *VERSUS*

## MAKERERE UNIVERSITY:::: DEFENDANT

# BEFORE: HON. JUSTICE STEPHEN MUSOTA

#### RULING

\* At the commencement of the hearing of this suit, Mr. Kibombo, learned • counsel for the applicant raised a preliminary objection to the effect that the « plaintiff's suit is time barred by law of limitation because the suit is based on a' scheme under which the plaintiff alleges that he was entitled to earn pension way back in .1996, The said scheme is contained io Annexture'B2' to the plaint and it is referred to in paragraph 6 of the plaint. A general circular No. 840 Annexture 'B2' is a clarification on long service and interim awards to members of staff Makerere 'University scheme,; . The. scheme was established as pleaded in paragraph 4(d) of the plaint.

**I**

Kibombo submitted that the cause of action accrued at the time.when the plaintiff, was entitled to -earn the sums claimed.. That, under..the Limitation - Act, actions based on.-contract have to be filed .in six ..years-.from-the date -\* when the action acerued-.and .this, was in 2002.-. However.,, the-plaintiff filed

*/'*

this claim in 2009. Therefore the suit was filed late. In reply, . Mr. Buwuie *I S* opposed the objection because pension, is a creature of statute, the Pensions — Act Cap 286 which under S. 18 provides that eve/y *pension is granted, ~ unless it has soonest ceased upon the death of the person to whom it is* \* *granted.*

*~* That so long as the person is alive, the same continues to accrue until his death and the person is entitled to claim it. Learned counsel relied on the ■- case of **Tumusiime & 318 others Vs Bushenyi District Local** *~* **Government & another, HCCS NO.32 of 2012** .wherein a similar • preliminary objection was.raised that the suit was.time barred. The court in «\*■ that case held, *inter alia* that under S. 18 (1) Pensions Act,-it would be futile to argue that the claim Tor arrears **is** time barred when the claimants were *~* still alive. That the preliminary objection was overruled because pension is a -• trust fund put aside by an employer and paid regularly to the ehnployee • when he/she becomes old or ill. Learned counsel for the plaintiff further . *~* argued that-at times theiemployees-contribute to the pension fund.

^8 In rejoinder, Mr. Kibombo urged that the scheme under.which the plaintiff, is claiming was not established,.under the-Pensions Act.,That- the,arguments by learned counsel for the plaintiff,..were applicable-to pension-payable under the. — Pensions Act., That **the provisions.under.the** Pensions Act are mandatory for j entities where it applies.-That according to paragraph. .4'of the plaint, what is pleaded is an arrangement -put -together. by the defendant to help its employees' who are retiring, to . get .a .-.better package.■■ further, that the — authority cited, of **Turnusime** (supra) is/distinguishable,..

**I**

Regarding the claim that the payment was made till the death of the claimant Mr. Kibombo referred to Annexture 'C' written by the plaintiff which states that these benefits were payable at once before the plaintiff left the • University. That this'underlines the uniqueness this scheme applied unlike the ordinary pensions. That the'plaintiff ought to have claimed the money within six years.

In his pleadings particularly paragraph 4, the plaintiff pleaded as follows:

*4\**

**o**

**c**

*"facts constituting the plaintiff's cause of action arose as ~~ follows:* **MF**

> *(a) Under the In House retirementscheme, the defendant had power to employ its own staff on terms and conditions determined by it and one of the said terms and conditions of services was the granting of retirement benefits to staff who retire from such service.*

> *(b) The plaintiff was in service1 of the defendant for a period of thirty two (32) years from the 1st day ofApril 1955 to 30th day of May 1987.*

*6\* (C)* ......... *'* \* • *The plaintiff voluntarily retired from the said service and accordingly received an Interim Award and a 'Long and Meritorious* , *Certificate' in recognition. of\_ service to the defendant,as per Annexture* 71z

*I*

CERTIFIED TRUE \

*(d) In 1993, the defendant issued a Circular Ref: 0502.12 dated 29th September 1993 headed "INTERIM AWARD TO RETIRING STAFF IN ESTABLISHED POSTS"......... The*

**3**

*plaintiffwas one of the staff referred to therein. The most pertinent paragraph in the circular reads as follows:*

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"This *is to inform you that council has come to realize that with the currency reform ofMay 1987 coupled with the. low salaries being paid to its employees, retiring staff are getting inadequate benefits to live on for the rest of their lives hence council is currently looking around for an ideal pension scheme that would be meaningful to its employees in the future".*

- *(e) The plaintiff received a long service award, equal to one year's salary.* - *(f)* /■ *The said interim award was meant to be a 'stop gap' measure pending the review of the pension scheme and the introduction .of a new optimum scheme which would cover the plaintiffvand other&lt; members ,of...staff* . *(see Annexture -B')::: .*

*(g) Upon retirement, the plaintiff on numerous occasions demanded his retirement package fromrthe defendant hut all efforts were ignored and/or neglected, (see Annexture 'C'f* **, ,**

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From the above-pleading, I...agre^rwith;the submission.;,by.. Mr. Kibornbo. that, the scheme upon, which the; plaintiff bases.tp. make the /instant; claim was an in house scheme put.in plage by the defendant independent of.the scheme ^/which affects public service employees and. is provided for—undec^the

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Pensions Act. Under the scheme of the defendant the plaintiff was entitled to be paid way back in 1996. The scheme is contained in Annexture 'B2' to the plaint and is referred to in the pleadings and it was a contract between the plaintiff and the defendant and was not established under the Pensions Act.

is that the start with the com-多可以为1995年出版基本的第三人称单数 is the other training of some of some of an organized

The arguments advanced by Mr. Buwule learned counsel for the plaintiff are applicable to pensions payable under the Pensions Act. The benefits payable in the private scheme were benefits payable at once before the plaintiff left the university. This underlines the uniqueness of the said scheme unlike the ordinary pension under the Pensions Act.

The facts in the case of Tumusiime & 318 others (supra) distinguish that case from the instant case. The plaintiff in that case were on various dates voluntarily and/or prematurely retired from the service of Bushenyi District Local Government, the first defendant who undertook to pay them their terminal benefits as stated in their termination letters. The first defendant $\boldsymbol{0}$ through the second defendant, the Attorney General only paid the plaintiffs 0 part of their terminal benefits but never paid the pension. Several persistent demands by the plaintiffs to be paid their outstanding terminal benefits and pension yielded nothing so they instituted that suit. The court in that case held inter alia as per Bashaijja J that:

"S. 18 (1) of the Pensions Act stipulates that every pension or other allowance granted under the Act shall unless it has sooner ceased, cease upon the death of the person to whom it is granted. Logically, it would follow that such pension and/or other allowances would continue to accrue to the claimant for 10 the rest of his life until death. This being the position, it would be rather futile to argue that the claim for pension arrears in $\mathcal{L} = \{ \mathcal{L} \mid \mathcal{L} \in \mathcal{L} \}$

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The day of the and the day of the 1 Street Basician Street

**CERTIFIED TRUE** COPY OF

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this case is statute barred when in fact the claimants are still alive........"

DAMAGNA 🔏 🏅

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**CERTIFIED TRUE**

the contraction of the state of the contract afternoon The said decision is correct in as far as it refers to pension and claims that are made and are granted under the Pensions Act.

$\cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots$

The scheme under which the plaintiff claims was not made under the Pensions Act. Therefore I agree with Mr. Kibombo that the law of limitations applies to it. S. 3 of the Limitation Act provides that:

> The following actions shall not be brought after the $(1)$ expiration of six years from the date on which the cause of action arose-

a) Actions founded on contract or on tort;

$b)$ $\overline{a}$

ے کم جسم معد معد معد معد است ماہ ہم ہم جسم میں موجوع کے اور معل

c) actions to enforce an award.

the state of the state of the state of the state of the terms of the terms. Since the plaintiff was supposed to have been paid in 1996 and was not paid, then the cause of action arose that year. Since the action accrued in 1996, he ought to have sued by 2003. However, this suit was filed in 2009 which was out of time and contrary to S. 3 of the Limitation Act.

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Consequently I will find that this suit is time barred and should be dismissed.

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when it with an it for

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$\rm I$ will make no order as to costs since the defendant ought to have raised his objections on the outset instead of doing it several years after the case had been filed. Each party shall meet its costs.

uius **Stephen Musota**

**JUDGE** 10.07.2014

$\overline{\phantom{a}}$

CERTIFIED TRUE OPPY OF THE ORIGINAL COPY O DEBUT