Yosia Wagisha v Kisesi (High Court Civil Suit No.51/90) [1993] UGHCLD 2 (10 June 1993)

**IFTNE REPUBLIC OF UGANDA** IN THE HIGH COURT OF UGANDA

> HOLDEN AT MBALE. HIGH COURT CIVIL SUIT NO. 51/90. YOSIA WAGISHA ................ PLAINTIFF VERSUS ............... DE YNDANT CONSTANT KISESI

BEFORE: THE HON. MR. JUSTICE S. G. ENGWAU.

RULING:

In the substantive suit, both Counsel framed issues and one such framed issue is whether the suit is time barred.

The defence Counsel raised a preliminary point of objection in law that the suit is time barred and as such the Plaint should 5 be rejected with costs to the defendant.

It is his contention that on the face of pleadings, the defendant purchased the suit land on 4.9.77. The Plaint was filed on $3.4.80$ . Under section 6 of the Limitation Act, no suit can be brought to recover land after expiration of 12 years from the date 10 when the cause of action accrued.

In the instant case, the cause of action arose on $17.9.77$ when the plaintiff's son sold the land and the 12 years expired on 4.9.89. By filing the suit in 1980 was out of time. In support

this argument the learned Counsel referred to paragraph 4 of 15 the Plaint which reads:-

> "On 28th September, 1980, the plaintiff who had been remanded on a Criminal charge since 1977 for alleged murder returned home only to find the defendant in forceful occupation of his piece of land aforesaid. The plaintiff protested and demanded for vacant possession but the defendant a very influential personality in the area violently drove away the plaintiff threatening to harm him. The plaintiff has since 1980 tried through the local chiefs to resettle on his land but in vain."

The learned Counsel argues that from the above paragraph, it is not clear whether by 1977 when the sale took place, the plaintiff had not been released on a charge of murder. $\frac{1}{2}$

$25$

$\mathbf{Y}$

In Charles Mpiima Vs. Attorney General (1990 - 91) 11 KAL R.58, it was held inter alia that a Plaint is severable when the causes of action are different in duration and nature thus prayer (b) and (c) of the Plaint in the instant case is time barred by virture of section 4 (1) (a) of the Limitation Act. In light of that the Plaint be struck out with costs as time barred.

$\mathcal{L}$

In his reply, the Counsel for the plaintiff submitted that according to the pleading in paragraph 4 of the Plaint, the plaintiff came to know of the adverse claim over his land in 1980. He is ready to adduce evidence to that effect. By 28.9.77 the plaintiff was in remand custody in alleged murder charge. Time therefore started to run against his claim in 1980 and that was when he was saved of the disability and in any case pleadings need not discloe all the disabilities in the Plaint.

Having heard both Counsel in their submissions and having 15 : paid more attention to paragraph 4 of the Plaint, this is a boarder line case based on the question of interpretation of the draft Plaint. It can be intercreted that when the defendant purchased the suit land on 4.9.77 the plaintiff came to know about it though still in remand for munder case. If that is the 20 case, was he under disability while on remand pending a criminal charge? In my view the answer is on the affirmative. It would be a different story if he was released on buil even for a very short time.

At this stage, it suffices on the face of pleadings, to rule that evidence at the trial shall put us to the right track, whether the suit is time barred or not. For now 1 decline to rule that this suit is time barred. In the end result the substantive suit may proceed on merit. I so order.

S. G. INGHAU JUDGE 10.6.93.

$...13$

$5$

10.6.93: Both parties present.

Mr. Owori for plaintiff absent. Mr. Wandera for defendant present. Ruling delivered in open court.

$-3$ -

$\mathcal{L} = \mathcal{L}$ S. G. ENGWAU $J^{\dagger}D\!G\!E$ $10.6.93.$

$SGE/eg$

$\mathcal{L}_{\mathcal{A}} = \mathcal{L}_{\mathcal{A}}$