Tabitha Lalango Lutara v Attorney General (HCT - 02 - CV - CS- 0033 - 2007) [2010] UGHC 238 (30 July 2010)

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT GULU CASE NO: HCT - 02 - CV - CS- 0033 - 2007

TABITHA LALANGO LUTARA (MRS) PLAINTIFF

### VERSUS

ATTORNEY GENERAL DEFENDANT

## BEFORE HONOURABLE JUSTICE REMMY KASULE

**t**

## JUDGMENT

The plaintiff, now administering the estate of the late Wilson Okumu Lutara, under High Court at Gulu, Administration Cause Number 029 of 2009, seeks, through this suit, compensation for the properties lost and also to be paid actual compensation for the said loss. The late Wilson Okumu Lutara died while he had already filed this case in court. Tabitha Lalango Lutara (mrs), the deceased's wife became plaintiff in the suit on being vested with powers as executrix of her late husband's estate through High Court at Gulu Administration Cause Number 029 of 2009. She was substituted to the suit as such on 28.04.09. <sup>a</sup> declaration that the plaintiff is entitled to

The evidence on record, that is not contested by defendant, is that in 1977, [ D the government of Uganda, with idi Amin, as head of state, forcefully seized and took over the late Wilson Okumu Lutara's Dairy farm or^Jarffl^comprised in


**\*** leasehold Register Volume 703 Folio 2 at Lolim, Kilak County, Acholi District measuring approximately 2425 hectares. The farm is popularly known as the

" Anaka Ranch"

In 1983, the Government of Uganda handed back the said farm, and whatever properties were thereon to the said Wilson Okumu Lutara. Plaintiff *C,* demanded, without success, compensation from the Government for the loss incurred during the period of seizure of the farm.

The plaintiffs alleged losses on the farm were valued in 2006 by <sup>a</sup> Government officer and the same amounted to shs. 4,249, 598,000/=. 08.01.07 plaintiff filed this suit against the Government. **I** On

The issues framed for trial are:-

- 1977. 1. Whether the plaintiff's farm was taken over by Government of Uganda in - 2. Whether the plaintiff suffered loss as <sup>a</sup> result of the seizure of the farm. - 3. Whether the defendant is liable - 4. Whether plaintiff's suit is time barred. - 5. What remedies are available to the parties?

As to the first issue, DW1 Dr. Moses Kulabako, <sup>a</sup> Senior Veterinary Officer, Ministry of Agriculture, Animal Industry and Fisheries, Entebbe, testified confirming the evidence of PW1, Dr. Stephen Kajura, <sup>a</sup> Veterinary Surgeon with J). the Directorate of Animal Resources of the same Ministry and PW2, Tabitha Lalango Lutara (Mrs), now the plaintiff, as to how the Government of Uganda seized and used the suit farm from April, 1977 tO 10.03.82, when the same was handed over back to the owner, now the late Wilson Okumu Lutara.


**2**

The certificate of title of the land of the farm was exhibited in court as exhibit P7. The same has the late Wilson Okumu Lutara as registered proprietor thereof.

prove that plaintiff's farm was taken over by the Government of Uganda in 1977. The first issue is thus answered in the affirmative. Exhibit p8, dated 02.05.77, the handover report by the then Governor, Northern Province, who ordered for the seizure of the farm, to the Permanent Secretary, Ministry of Animal Resources and Industry, Government of Uganda, as well as exhibit P3, where the Department of Veterinary services and Animal Industry wrote to Mr. Wilson Okumu Lutara restoring the farm to him, all go to

seizure of the farm, exhibit P2, the valuation of Anaka Ranch dated 06.01.06, carried out by PW1, then Principal Veterinary Officer, Dairy and Meat Animal As to the second issue, whether the plaintiff suffered loss as <sup>a</sup> result of the aspects of PWl's evidence were however controverted by DW1, with reasons that PW1 had put the rate of death of the cows too low, while he had assessed the off-take level of the steers being sold off per year too high. Court accepts DWl's Production and Marketing Department, Ministry of Agriculture, Animal Industry and Fisheries, put the total value of loss as <sup>a</sup> result of the taker over of the Anaka | Ranch from 1977 tO 1983 at Uganda shs. 4, 249,598,000/= as at 06.01.06. Some evidence and thus reduces the plaintiff's total sum she claims from shs.4,249,598,000/= to the sum calculated by DW1 of shs. 4,239,783;000/- as the' suffered loss. Accordingly the answer to the second issue is that the plaintiff suffered loss as <sup>a</sup> result of the seizure of the farm, the said loss being <sup>a</sup> sum of shs. 4,239,783,000/=.

**r>**

**3**

**i**

The third issue is whether the defendant is liable.



Administrations, on visiting the plaintiff's ranch on 23.03.77, directed the military personnel assisted by the District Administration and Veterinary Department to take over the said ranch. The evidence on record is that the then Minister of Provincial

**ST** exhibit P3. All the actors were Government officials carrying out their duties .as **I** the third issue is that the defendant is liable to the plaintiff. The directive was complied with up to 02.05.77, when the office of the Governor, Northern Province, handed over the farm to the Permanent Secretary, Ministry of Animal Resources as per exhibit P8. The Ministry remained in charge of the farm up to 10.03.82 when the same was handed back to the owner as per such in the course of and within the scope of their employment. The answer to **I.**

The fourth issue is whether the plaintiff's suit is time barred.

The Civil Procedure and Limitation (Miscellaneous Provisions) Act, Cap.72, cause of action. The defendant in this case being Government, it is the Civil provides that no action founded on tort shall be brought against the Government after the expiration of two (2) years from the date on which the cause of action arose. Sections 3 and 5 of the Limitation Act, Cap.80, provide that actions based Procedure and Limitation (Miscellaneous Provisions) Act that applies to this case. on torts must not be brought after the expiry of six (6) years from the date of the

**IS**

**4**

However, under section 22 of the Limitation Act, an acknowledgment of liability or accepting of part payment from the defendant, revives the cause of action, provided such acknowledgment is in writing and signed by the person making the acknowledgment. This section, thus enables <sup>a</sup> party to the suit, in appropriate circumstances .proved with evidence,.to maintain an action, even


where the period of limitation has expired, on the basis that the cause of action has been revived throughacknowledgment.

Procedure Rules. It is also the law that, where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint must show the grounds upon which exemption from that law is claimed: see Order 7 Rule 6 of the Civil

**s**

In this particular case, there is no specific pleading of revival of the cause of action due to acknowledgment, and there is also no pleading of grounds of plaintiff on 10.03.82. exemption from Limitation in the plaintiffs plaint. Even when the opportunity to amend was there, when, for example, there was substitution of plaintiff by ( Cb **I.** amending the plaint, no attempt was made by plaintiff to amend the plaint so as to bring out precisely and clearly the grounds of revival of the cause of action or the other grounds upon which plaintiff claimed to be exempted from the law of Limitation. Instead plaintiff maintained in the amended plaint dated 07.10.09, paragraph 5 thereof that despite repeated demand for compensation the defendant has refused and/or neglected to pay, thus clearly showing that defendant has never revived the cause of action since the return of the farm to

Further, Court does not find anything amounting to admission of liability on the part of the defendant and thus renewing the cause of action in the evidence of PW1 and DW1. The fact that PW1 carried out an evaluation report of Anaka Ranch on 06.01.06 cannot amount to renewal of the cause of action on the part of defendant since the evaluation was carried out in the main, at the request of the plaintiff. At any rate, the carrying out of the valuation per se cannot amount


to the defendant acknowledging being liable to the plaintiff and thus renewing the cause of action.

This court also .finds that in exhibit P4 dated 04.09.06, the Ministry of Agriculture, Animal Industry and Fisheries, just sought, as it was entitled to do, advice from the solicitor General. The exhibit does not amount to <sup>a</sup> ground for plaintiff to be exempted from the provisions of the Limitation laws.

Exhibit P5 is <sup>a</sup> request by Mr. Wilson Okumu Lutara to have the farm valued. There is nothing in it to exempt plaintiff's action from being caught by limitation.

out of court". **ir** As to exhibit P6, written by Mr. Wilson Okumu Lutara, when there was <sup>a</sup> meeting with the President, which PW2 also attended, the President is said to have stated as regards the claim that:- "on viewing of the file, the President stated he would consult and instruct the Attorney General to settle the matter First, this is <sup>a</sup> statement attributable to the late Wilson Okumu Lutara. It is not <sup>a</sup> written acknowledgment by Government of the plaintiff's claim. Second, even on the face of it, all that the statement amounts to is that future action on the plaintiff's claim would be taken after consulting the Attorney General. There is thus nothing in this statement per se that Government was accepting liability and thus reviving the cause of action. The statement also contradicts the evidence of PW2 who, according to her, the President assured them at the meeting that Government would compensate them. Court notes that there was no evidence adduced by plaintiff to prove whether exhibit P6 dated 18.02.08 was ever forwarded and received by the Government, through the addresses, Ms Amelia Kyambadde, the Principal Private Secretary, to His


**6**

L\_

Excellency the President. Neither Ms. Amelia Kyambadde, nor Ms. Lalam Margaret, through whom the said letter passed, testified in this case.

At any rate, the plaintiff adduced no official minutes or correspondence of what transpired at the meeting with the President. There was no written acknowledgment produced to court from the President, or any other Government official, after the holding of this meeting that Government was acknowledging its indebtedness to the plaintiff; and thus reviving the plaintiff's cause of action.

The law is that no cause of action will be entertained by court, once such <sup>a</sup> cause of action is statute barred, irrespective of how strong the claimant's case may be: see AUTO GARAGE VS MOTOKOV (NO.3) 1971 EA 514, and MAKULA INTERNATIONAL VS CARDINAL NSUBUGA (1982) HCB 11.

**<sup>I</sup> D**

**r**

**IS**

**7**

plaintiff's suit is time barred. The plaintiff and her counsel have themselves to blame for having handled and prosecuted this issue, more or less, in <sup>a</sup> casual manner, yet it was so crucial to the plaintiff's case. This court therefore finds that the answer to the fourth issue is that the

The fifth issue is what remedies are available to the plaintiff.

Had the plaintiff's claim not been time barred the plaintiff would have been entitled to the declaration that plaintiff is entitled to and for an order that she be paid compensation in the nature of special damages of shs. 4,239,783,000/= being value of loss as found in respect of the second issue. The plaintiff would also have been awarded interest on the sum of shs. 4,239,783,000/= at court rate as from 27.07.77, when the farm was seized, till payment in full.

In conclusion having found that the plaintiff's suit is time barred, the same stands struck out/dismissed by reason thereof.


*Plaintiff is to <sup>P</sup>a<sup>y</sup> costs of the struck out/dismissed suit to the* The defendant.

•vie y Certify Copy th?.t this is a <sup>J</sup> of-the Dated Chiefthio g^A.^.y of.^TT **A** <T REMMY KASULE JUDGE 30th July, 2010

*i*


## **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA HOLDEN AT GULU**

### CASE NO: HCT - 02 - CV - CS- 0033 - 2007

**TABITHA LALANGO LUTARA (MRS) PLAINTIFF**

#### **VERSUS**

**ATTORNEY GENERAL DEFENDANT**

#### **DECREE**

**day of July, 2010,** before **Honourable Justice Remmy K. Kasule, Resident Judge, Gulu,** in the presence of **Peter Kimanje Esq,** Counsel for the Plaintiff and in the presence of the plaintiff and in the absence of Defence Counsel. THIS suit coming up for final disposal this 30th

#### **IT IS HEREBY DECREED THAT**

The plaintiff's suit is time barred and the same stands struck out/dismissed by reason thereof

day of 2010. Given under my hand and the seal of this Honorable Court this ?\*

**REMMY KASULE**

**JUDGE**