Turyakira and Another v Attorney General (HCT-01-CV-CS 16 of 2023) [2024] UGHC 751 (16 August 2024)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA $HCT - 01 - CV - CS$ N<sub>0</sub>. 0016 OF 2023

## 1. TURYAKIRA NOVENCE

## **2. BYARUHANGA PATRICK ::::::::::::::::::::::::::::::::::::**

(Suing as Administrator of the Estate $\mathsf{6}$ of the late Agaba Micheal)

### **VERSUS**

ATTORNEY GENERAL :::::::::::::::::::::::::::::::::::: $\mathsf{q}$

**Corum: HON. JUSTICE VINCENT WAGONA**

**Delivered on: 16/08/2024** $12$

Summary: Limitation: - Limitation of claims against government - Actions against

- government or local government based on tort or contract, the time within which 15 such actions must be commenced is 2 years from the date the cause of action arose, and 3 years for contracts. Section $3(1)(d)$ of the limitation Act does not apply to - claims under tort or contract against Government or Local Governments. 18 - **RULING**

### $21$

## **Introduction:**

This ruling resolves the point of law raised by Mr. Alex Isingoma Learned counsel $\overline{24}$ for the defendant that the suit is barred by limitation and thus incompetent.

#### **Background:** $\overline{27}$


$\overline{3}$

The plaintiffs are administrators of the estate of the late Agaba Micheal who is said

3 to have been a member of Uganda Peoples Defense Forces as No. RA/16619 at the time of his death on 16th November 1987. They sought to recover a sum of shs 40,000,000/= as unpaid pension from the date of service till his death, shs

6 80,000,000/= as his gratuity, interest at a rate of 24%, exemplary and general damages plus costs of the suit.

The defendant in her written statement of defense denied this claim and contended

- 9 that the late Agaba Micheal was never an officer of Uganda Peoples Defense Forces since he died in 1987 as such the plaintiffs are not entitled to the claims being advanced. That the letters of administration relied upon by the plaintiff were secured - 12 from the Chief Magistrate's Court to claim compensation beyond the pecuniary value of the grant. The defendant indicated that she would raise a point of law and ask court to strike out the suit with costs.

When the suit was scheduled for mention on 25th March 2024, Mr. Insingoma Alex for the defendant indicated that he had a point of law to raise. A schedule to file 18 written submissions was issued and only learned counsel for the defendant complied. Mr. Wahinda Enock for the plaintiff did not file a response.

## 21 **Points of law:**

Learned counsel for the defendant raised three points of law to wit; none disclosure 24 of a cause of action, the suit being prematurely brought before court, and limitation. In respect to the first point of law, he asserted that the letters of administration relied upon were granted by a Magistrate Grade One sitting at Kamwenge whose pecuniary


limit does not exceed 20,000,000/= and could not be used to claim a sum of shs 120,000,000/= indicated in the plaint. He invited me to the case of *Kensi Johnson v*

- 3 *Kezekiya Biryabarema & Anor, HCCS No. 0035 of 2019* where Justice Moses Kazibwe dismissed a case which was filed using a grant from the Chief Magistrate's Court of Rukungiri. It was contended that in the current suit, the plaintiff had no 6 locus standi and the case should dismissed on that account. - It was further contended that the claim by the plaintiff ordinarily falls against the responsible authority and not the defendant within the provision of the UPDF Act. - 9 That as such the plaintiff has no cause of action since there is no right that they enjoyed which was violated by the defendant. That the plaintiffs ought to have followed up the matter with the relevant authorities first and as such their claim is - 12 thus prematurely before court.

On the issue of limitation, learned counsel submitted that Section 3 of the Limitation

- 15 Act limits suits based on contract to 6 years from the time the claim arose. The plaintiff got the letters of administration in 2015 and ought to have commenced the action in 6 years which lapsed in 2021. The suit was filed in 2023 April 6 th after 8 18 years. The suit is thus barred by limitation and should be rejected. - **Issues:** - 21 **1. Whether the plaintiff has locus to file the claim at hand.** - **2. Whether the plaint discloses a cause of action against the defendant.** - **3. Whether the suit is premature before this Court.** - 24 **4. Whether or not the plaintiffs' suit is barred by limitation.**


## **Consideration by Court:**

- 3 I will start with the issue of limitation since limitation has the consequential effect of abating a party's claim. The claim by the plaintiffs as captured in the plaint seeks to recover terminal benefits of the late Agaba Micheal who previously served in the - Uganda Defense Forces till his death on 16 6 th November 1987. The concern put before me by learned counsel for Attorney General is whether the claim by the plaintiffs falls within the precincts of the time provided for under the limitation Act. - 9 Mr. Isingoma invited me to section 3(1)(d) of the Limitation Act which is to the effect that actions based on contract or tort must be brought within 6 years from the date the cause of action arose. He contended that the plaintiff's claim arose on - 6 12 thMay 2015 when they got letters of administration and by the time the suit was brought, it was beyond the 6 years under Section 3(1)(d) of the Limitation Act as thus its time barred. - 15

I will first comment on the applicability of section 3(1)(d) of the Limitation Act to proceedings against government as regards actions in tort and contract. My view is 18 that the above section does not apply to action against government based on torts and contract. The applicable law is the Civil Procedure and Limitation (Miscellaneous Provisions) Act Cap. 72. Section 3 of the said Act provides that:

## 21 *Limitation of certain actions*

*(1) No action founded on tort shall be brought against—(a) the Government; (b) a [local authority;](https://ulii.org/akn/ug/act/1969/20/eng@2012-06-22#defn-term-local_authority) or (c) a [scheduled corporation,](https://ulii.org/akn/ug/act/1969/20/eng@2012-06-22#defn-term-scheduled_corporation) after the*

24 *expiration of two years from the date on which the cause of action arose.*


# *(2) No action founded on contract shall be brought against the Government or against a [local authority](https://ulii.org/akn/ug/act/1969/20/eng@2012-06-22#defn-term-local_authority) after the expiration of three years from the date* 3 *on which the cause of action arose.*

Therefore, actions against government or local government based on tort, the time 6 within which such actions must be commenced is 2 years from the date the cause of action arose, and 3 years for contracts. Therefore, section 3(1)(d) of the limitation Act does not apply to the facts of this case. That being the case, the question remains 9 whether the claim beforehand is caught by the law on limitation.

The claim to recover terminal benefits of a deceased person accrues from the time a person dies. I would therefore take it that the time within which the plaintiffs were

- 12 to bring the action at hand started to run in 1987 when the said Agaba Micheal passed on. However, Section 5 of the Act provides for disability as an exception to the time set under Section 3. Therefore, in case a right to an action accrued when a person - 15 was under a disability, he or she should in such a case commence the action at any time within 12 months from the time he or she ceased to be under a disability. Section 5 also adds that the time may be postponed incase of a mistake or fraud which is 18 concealed by the defendant. That being the case, such disability should be pleaded in order to aid a party who brings a claim outside the period of limitation. (See: *Iga v Makerere University (1972) E. A 65*). - 21

It is thus my considered view, that claims based on contract or tort against government must be brought within 3 and 2 years respectively. This issue was 24 considered by the supreme court in *Nyeko Smith & 2 others v Attorney General, SCCA No. 01 of 2016*. In the said case, the plaintiffs were former employees of National Sugar Works (Kinyara) Ltd based in Masindi, owned and managed by


government. Between 1975 and 1985, there was a war between government and NRA which affected the operations of the corporation which made it difficult to 3 continue operating. The appellants were advised by management to go on leave until the security situation normalized. In 1990, government established Kinyara Sugar Ltd in the place of Kinyara Sugar Works (Kinyara) Ltd and advertised for workers 6 and the appellants were not considered. In 2009, the appellant filed a case at Masindi High Court seeking terminal benefits and costs. A point of law was raised by counsel for Attorney General under Section 3 of the Civil Procedure and Limitation 9 (Miscellaneous Provisions) Act to the effect that the suit was barred by limitation. The learned trial judge overruled the point of law and on appeal to the Court of Appeal, the point of law was upheld.

The appellants thus lodged an appeal to the Supreme Court against the decision of the Court of Appeal. Tumwesigye JSC who gave the lead judgment noted that the 15 cause of action by the appellants arose immediately after the war in 1986 and the suit filed in 2009 was certainly barred by limitation. That incase of disability, it must be demonstrated that such prevented a party from accessing court.

In the present case, the plaintiffs indicated under paragraph 3(a), 4(b) that the late Agaba Micheal was a member of the Uganda Peoples Defense Forces identified by 21 No. RA/16619 at the time of his death. That he was shot while serving his country in the forces and they attached a copy of the death certificate which indicated that the late Agaba died on 16th November 1987. Later they secured letters of 24 administration over his estate from Kamwenge Chief Magistrate's Court in 2015. They sought to recover his unpaid annual pension and death gratuity. It is my considered view, that the claim for unpaid benefits accrued at the time of death of


the late Agaba and the time started to run from that time. The plaintiffs did not plead any exceptions under the Act. It is thus my view that the suit at hand which was filed

- 3 in 2023 after nearly 32 years was outside the 2 years and 3 years respectively provided for under the Act. Even if I were to take the naïve view that the plaintiffs could not file the suit at hand by virtue of lacking letters of administration, the letters - 6 were got in 2015 and the suit was filed in 2023 outside the 2 years period for a claim founded on tort and 3 years period for a claim founded on contract provided for under the Act. It is thus my finding that this suit is thus barred by limitation. The suit - 9 fails at this stage and is hereby struck out with no order as to costs. I have denied the defendant costs since it is the delay to process pension and gratuity on behalf of government that could have led to the suit at hand. I so order.

Vincent Wagona **High Court Judge** 15 **FORTPORTAL DATE: 16/08/2024**