Tumuhimbise v Centenary Rural Development Bank (HCT - 05 - CV - CS - 109 - 2004) [2012] UGHC 437 (31 May 2012)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA HCT - 05 - CV - CS - 109 - 2004

## CHARLES TUMUH11MBISE PLAINTIFF VERSUS

#### DEFENDANT CENTENARY RURAL DEVELOPMENT BANK

### BEFORE HON. MR. JUSTICE BASHAIJA K. ANDREW

#### RULING

At the commencement of hearing, Mr. Sekidde, Counsel for the delendant raised a preliminary objection that the suit was time barred and should be struck out. He submitted that under *Section 3(1) (a)* of the *Limitation Act (Cap. 80),* actions founded on contract should be brought within six years of the time the cause of action arose. Further, that the plaintiffs cause of action

based on wrongful dismissal from employment by the defendant bank arose in 1996 and the plaintiff filed his suit only in 2004; eight years after the cause of action arose.

Counsel also submitted that even though the Plaintiff states, in paragraph 1 1 of the plaint, that he was under disability due to illness. *Section 1(3)* of the *Limitation Act (supra)* provides that a person is deemed to be under disability while he or she is an infant or of unsound mind, and that mere illness cannot stop a person frorji-issuing instructions to a lawyer. In addition and that the Atsii^.^-^ljijSiabiljtiE cannot be tried because it does not fall under

'"ch does not cater for illness. Counsel prayed for the suit to be struck °ff with costs for being time barred.

I^Ir. Mwene-Kahima, Counsel for the plaintiff responded that paragraph 11 of the plaint was an unnecessary pleading because the plaintiff was acquitted of criminal charges in December 2012, and that it is when the time began to run. That the period between 1996 and then is not leckoned with in the computation of the time, hence the suit is within time.

In rejoinder, Mr. Sekidde maintained that the plaintiff alleges in paragraph 7 oi the plaint that he was dismissed from employment and the cause of action is based on that dismissal, which happened in 1996 and had nothing to do with the judgment acquitting the Plaintiff of the criminal charges. Further, that the plaintiff is bound by his pleadings of which his Counsel submitted are unnecessary. He never amended his pleadings, and is hence bound by them. Counsel reiterated his prayer that the suit be struck out with costs.

In computation of the time of limitation of actions under the Act, the starting point, in my view, should be to determine the nature of the cause of action and the time it arose and when the claim was filed in court. In the instant case, the cause of action is based on a contract of employment, and the plaintiff's claim is for wrongful dismissal. This is clear from the pleadings in paragraph 7 ofthe plaint that:-

*"Shortly after the institution of the impugned criminal proceedings, the defendant by its letter dated 6th day of June 1996 a photocopy whereof is attached hereto mark B dismissed*

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the Plaintiff from the employment." (Underlined for emphasis on the date of dismissal).

The plaintiff further states, in paragraph 8 of his plaint, that the dismissal violated Staff Regulations and was wrongful and caused him loss for which he seeks compensation.

Clearly, the cause of action founded on a contract, which arose on $6th$ June 1996 and action was instituted in 2004 is time barred under the terms of Section 3 (1) (a) of the Limitation Act (supra).

It is noted that the plaintiff pleads disability due to sickness in paragraph 11 of the plaint. Counsel for the plaintiff submitted that it was an unnecessary pleading. I agree in that Section $I(c)$ of the *Limitation Act (supra)* stipulates the specific nature of the disability a party must rely upon, which is purely legal disability. If a party was not an infant or cid not suffer mental incapacity, any other illness is not disability under the Act, and under it cannot be pleaded as an exemption from limitation provisions of *0.7 r.6 of the Civil Procedure Rules*. This renders the instant suit time barred

Under the terms of $O7 r.11$ (a) $CPR$ , and as was held in the case of Yiga v. Makerere University (1972) $E A 65$ , where a suit appears from the statement in the plaint to be barred by any law it shall be rejected. Accordingly, suit is dismissed with costs to the defendant.

**BASHAIJA K. ANDREW CERTIFIED TRUE** COPY OF THE ORIGINAL **JUDGE** 31/5/2012 $+1721$ 3 ASST: REGISTKAR **DAT3** ایم،

#### THE **REPUBLIC** OF UGANDA

#### IN THE H81GH COURT OF UGANDA HOLDEN AT MBARARA

#### HCT-05-CV-CS-0109/2004

CHARLES **TUMUHIMBISE** PLAINTIFF

DEFENDANT CENTENARY RURAL DEVELOPMENT BANK

#### **DECREE IN ORIGINAL SUIT:**

THIS SUIT coming on this day for final disposal before Hon. Mr. Justice Andrew Bashaija at the High Court at Mbarara in the presence of Mr Mwene-Kahima, Mwesigve counsel for the plaintiff and Mr. Ssekidde counsel for the defendant and in the presence ofthe plaintiff,

#### **IT IS HEREBY ORDERED AND DECREED:**

- 1. That the suit fails and is dismissed for being barred by law; - 2. That the plaintiff shall pay the costs ofthe suit.

GIVEN under my hand and seal ofthe court this 31st day of May. 2012.

**)**

ASSISTANT REGISTRAR

EXTRACTED BY:

M/S MWENE-KAHIMA, MWEBESA & CO. ADVOCATES, PLOT 8 JOHNSTONE ROAD, P. O. BOX 343, MBARARA