Zzizinga and Another v Uganda Commercial Bank (Civil Suit 3 of 1990) [1992] UGHCCD 113 (24 January 1992)

Full Case Text

THE REPUBLIC--OF UGANDA

In the high court of Uganda at Kampala

'•^7 HIGH COURT CIVIL SUIT NO, 3/1990

• PLAINTIFF'- % *i*George zzizinga 2, nankumba ZZIZINGA .. 5 ' ' ? ' 5: s:: (Suing through the next of friend)

## V E R S U S

UGANDA COMMERCIAL BANK DEFENDANT BEFORE: The Honourable Mrs. Ag. justice M« Kiyeju" RULING\*

When this suit came up for hearing, counsel for the-defendant Mrt Angeret made a preliminary application that the plaint should be struck off under Order 7 rule 11(d) of Civil Prodedure and Limitation — • (Miscellaneous Provisions) Act of 19&9»

the 5/8/88 the wife \*f the first plaintiff was invoked in an accident with a motor vehicle belonging to the defendant of which she died and the second plaintiff the daughter of the 1st plaintiff was also injured in the same accident\* Act, Cap The brief facts of tkis case are that on The .first plaintiff, brought this.action\* on his own behalf and on behalf pf 10 members of the family\* of the deceased^ under the provisions of part II of the Law Reform (Misc. Provisions) *) -'i* ?\* The plaint was not filed until 23/12/89\* •

after the expiration of 12 months from the date on which the cause The submission by learned counsel for the defendant,- was that r " under section 2(1)(c) pf Act 20/69 cited above it is provided that . no action founded on tort shall be brought against a scheduled corporation

of arose. on He argued that since the cause of action arose 5/8/88 and the plaint A1/z months outside the limitation period,, the action was time-barred. was not fj 7 ad until 23/12/89t more thafc

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application. majority. of intention to sue was served their action even if that of their friend was barred by limitation# a suit through next of friend but that Mr. Mbogo, counsel for the plaintiffs, submitted-that -noticeon 20/1/89 to the defendant and that sin. e this" £ss:;^ legal requirement-under .-Act 20/69. that the. proceedings must have cemmerc;ed\\oiiJkhatjd.ate^uand Lith^ijefor^;-.the suit .was within time. -.. In the alternative he contended that even if the first,plain tiff was time-barred, ;the minor.children.should not be affected, that sinee the - uo Act- itself exempts... .themselves fr om being time-barred .by extending'"tiiei> tiirfe-in-which they can file an actiqn> He referred me/tb Order 29 rule 12(1) where it is stated that a minor plaintiff or a minor not a 4 ... . , - . . party to'a suit on whose behalf an application is pending shall, on attaining majority elect whether he will proceed with the suit or *H* **' \*** He interpreted the rule to mean that a miinor can file he can still sue when he attains-\* He. submitted that. the\_minors were free to continue with

Mr. Angeret in response'^.submitted that according to the plaixt there -was only one plaintiff claiming under the Law Reform Act\* f That the minors being referred to were not known as they were , not shown **• f ?.'! ,:x- .. uc " ;** in the plaint as required under section 10 of Cap 7^\*

to in paragraph J of the plaint as those to benefit from' this (flection and that since the actual names were mentioned in the consent of the . next:.of friend,\* and-feerife; 1.0: in .numbert= arid that since the ^consent 'Was part of the plaint, in his opinion the names of the family were Mr. Mbogo submitted that the members of the family were referred

mentioned as required by the law. an error which can be cured by amendment. He further submitted that this was

the issue to be decided now is whether the action is barred against the first plaintiff After hearing the submissions by both counsels, George Ziizinga in his own capacity and also in respect of the minor children of which he is suing as next of friend.

First of "all I shall deal with the issue which arose as to by law. case before the -a-s required Section 10 of Law Reform (Misc. Provisions) Act Cap 7^ reads as follows whether the 10 minor children have got a

> " ^he plaintiff £hall deliver to the defendant\* together with the plaint, full particulars of fche person or persons for whom-. - and on- ''whose behaif'such action is brought, and of the nature of the claim;in respec| ..of which damages are sought to be recovered "

Paragraph "J*i \*'*of the plaint reads as follows;~

named therein. " The first plaintiff brings this action for his own benefit and for the benefit of the members of family J - • ; • of the said deceased as set out below under the provisions of part II of the Law Reform (Misc. Provisions) Act (Cap 7^)\* The consent of next of frien^ dated 16/11/89 signed by George Sizzinga '• .as.: in which he confc&nted.to act£next of friend to 9 minor plaintiffs was attached to the plaint. .. And the minor plaintiffs were properly

with the plaint, full particulars for-whom and on\* action is brought. The law does not require that the names must be On reading section1 10 of Cap 7^ referred to above rthat? the ' \* ' ' ' ' ' • ... L ? -. H plaintiff is required to do is to deliver to the defendant together whose behalf such

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listed in the plaint, all that is required is to deliver them with the plaint to the defendint and thats what the plaintiff $\ldots \ldots$ advecate did in this case. From the above references I am conviced that section 10 of Cap 74 was complied with by the plaintiffs and therefore there are minor plaintiffs in this suit.

1. 普

It is not disputed that the action should have been filed within 12 months in accordance with section $2(1)(d)$ of Act $20/69$ As it was against a scheduled corporation hamely Uganda. Commercial Bank and was founded on tort. Counsel for the

plaintiff's arguement that the suit is not time barred because the Statutory Notice was served within the statutory period cannot stand. It is now established law that the statutory notice and the filing of the plaint must be within statutery $\mathbb{P}^2 \times \mathbb{P}^2 \to \mathbb{P}^2$ period of 12 months. The Statutory Notice is not part of the court proceedings although the court can enforce it in case The statutory notice is addressed to it is not complied with. the defendant, it is headed " NOTICE TO INTENDED DEFENDANT" and it also state "In the matter of an intended suit." All these go to show that the notice is not part of the court proceedings. The $\mathcal{L} = \{ \mathcal{J} \mathcal{L} \} \cup \mathcal{P} \mathcal{M}$ $...1$ suit is filed after filing the plaint in court, as provided under Order 4 rule $1(1)$ that:-

" Every suit shall be instituted by presenting a plaint to the court or such officer as it appoints in this behalf " I accordingly hold that the Statutory Notice is not part of Court action as envisaged under section 2(1) of Act 20/69. And therefore this action was filed after the limitation period of 12 months. cause of

The next issue is whether the action is time barred in respect/of/action arose on 5/8/88 and the plaint was not filed $23/12/89$ , which puts this suit cut of the 12 months until limitation period provided by the law. The plaintiff has

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no extention of limitation period in case of disability available to him as provided under section 4 of Act 20/69 as he is neither an infant or of unsound mind. Also section 5 which relates to postponement in case of fraud and mistake is also not available to him. I therefore find George Zizzinga's action against the defendant barred by limitation.

The next issue is whether the suit is statute barred against the miner plaintifss who brought this action through their father George Zizzinga as their next of friend. Section 4 of Civil Procedure and Limitation (Misc. Provisions) Act provides as follows:- $\sim$ $\sim$

> " If on the date when any right of action accrued for which a period of limitation is prescribed by this Act the person to whomit accrued was under a disability the action may be brought at any time before the expiration of

twelve months from the date when the person ceased to be under a disability or died, whichever event first occurred notwithstanding that the period of limitation has expired " Under section 8(2)(a) a person is deemed to be under a disability while

$\lim_{n \to \infty} \frac{1}{n} \lim_{n \to \infty} \frac{1}{n} \lim_{n \to \infty} \frac{1}{n}$ he is an infant-nr of unsound mind. $\cdots \rightarrow$ From the above cited law it would appear that if the plaintiffs $\mathcal{V} \rightarrow \mathcal{V}$ can prove that they were infants when the cause of action arose then they would qualify for extention of time for 12 months from the date

when they cease to be under disability. It is important to note that section 4 of Act 20/69 is a reproduction of section 22(1) of the Limitation lact Cap 70. However, S. 22(2) trium of the and (3) are not reproduced under Act 20/69, these exclude the person who was under the custedy of a member of his family when the

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cause It has been held in the case of Kampla City Council Vs. Nuliyati /197V that, the two acts cannot be read together because of action arose from benefiting from the section on disabilityt of section 33 of the Limitation Act which states th|£t;-

> " This. Act shall not apply to any action or arbitration for which a period of., limitation is prescribed by any^ ntlier enactment •••"

Provisions) Act. Before I look at the law, I shall give the brief facts case. 'Council, expiry of 12 months. bring an action out of time for the death of a parent and against ' by minop'may be brought it respect of the death of a deceased more Act of 1969 together with section .8(2) (b) of the Law Reform (Misc. Provisions) Act, Justice Spry-V-P'sholding a loca-Vauthority. The action had been filed \*+ years after'the. "accident^ On <appeal.it> was held that an action against a local authority was as follows; a minor is extended beyond one year-and that no action even-by a of the above cited case which has a lot in common with the present In that case the respondent a minor, sued Kamapala City a local authority for damages for j.fchey..death her father in a road accident\* The action was filed more than three years after the accident. The defences were that no Statutory Notice-', had been delivered- to the appellant prior to the filing of' the suit, and that the suit was barred by effluxion of time at the The High Court held that a minor may ' than three years after the death. The court of Appeal considered section 2 and 4 of the Civil Procedure and Limitation (Misc. Provisions) The laws which we have to look at are the Civil. Procedure and Limitation (Misc. Provisions) Act 1969' hnd the Lav/ Reform (Mis-c-©llanenB

" Quite clearly, section 2 of the Civil Prodedure and Limitation (Misc. Provision) Act 1969, reduces the period of limitation in fatal accident cases, where a local authority is concerned, from three years to one year. The question is whether section 4 of the Act can operate to extend the period, where the suit is by a minor beyond three years. I do not think so I think the two Acts can and should be read together, when the result is that in the case of a minor plaintiff the period of limitation $my$ . be extended beyond the one year prescribed by section 2 but not beyond the three years prescribed by section $8(2)(b)$ of the Law Reform (Misc. Provisions) Act, the Act which creats the right of action. I think, with respect, that the judge was wrong and this suit was barred by limitation " In the cited case the action was time-barred because it was brought after three years. Section $8(2)$ of Cap 74 provides that every action under section 7 of the same Act shall be commenced within 3 years after the death of such deceased personn.

If the above authority is applied to the present case, then the $\alpha_1,\dots,\alpha_{n-1}$ mincrs would still be allowed to extend their time for 12 months, but no extention would be allowed beyond 3 years. Since the action was $\frac{1}{2}$ in $\frac{1}{2}$ in $\frac{1}{2}$ . filed 4% menths out of time, then the extention for one year was still running: In view of the cited court of Appeal decision, I rule that the miners (action is not time barred.

Before I take live of this matter there are some questions I would like to comment on which I came across while considering this application. The subjection under the limitation Act Cap 70 which allews infants to be able to bring action when they are under the custady of a member of their family was not included in Act 20/69.

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The a member of his -family when he tries to bring action when he attains majority. But I -think £his interpretation would defeat the purpose • ; • . of the Act. 's action'-could be delayed unnecessarily, whereas the Act was intended among others to speed up suits against Government and The subsection denied infants who are under custody to benefit from disability exemption provided under the said Act Cap 70t said emission could be interpreted to mean that under Act 20/69, an infmt does not have-to prove that he was under the custody of scheduled corporations.;- ...

claim is under the Law Reform (Misc. Provision) Act the infant o aware would be out of time, because of section 8, 2(b) of Cap through , ' ''I no fault of his. P is just negligent you also lose. • opinion 'U:'i *X* In my humbl^I believe that it co.ujld not have been the xxuxuox But\* this would be in line with the above-cited case. And also if you are an infant and have a next of friend who is not x. . ./O''-- • X. " of the limitation period as was the case in this suit or he Under section 4 of 20/69 if the infant does not bring action through the next of friend arid waits until he reaches majority, and / this can take,4 years .or more depending bn how old the infant is when the causb-;of action arises, this would however, me-an that II the

Act / some people. 20/69 as The contradiction between Cap-. 7^+ and highlighted above could be addressed by people responsible intention of the legislature to give a right of action under one Act but faul to cordinate it with another Act, thus rendering it ussless t©

for amending the law.

/ In conclusion, I find that the minor plaintiff's action is not time barrel and therefore this suit will proceed against the

defendant by the minor plaintiffs. And accordingly the objection in respect of minor children is overruled. Georrre Zizzinga's action againsttfh'©'defendant is time barred for the reasons already given, his claim against defendant is rejected under Order 7 rule 11(d) and the preliminary objection is up-held in this respect.

C/l/K M. KIREJU

Ag. JUDGE ?V1/92.

24/1/92

Mr. Mbogo for the Plaintiffs

Mr. Angeret for the Defendant Absent.

Mr. Musoke® Court Clerk®

Puling fdeliverod

M. KIREJL

Ag. £ U D G E.

24/1/92