[1991] UGSC 16

#### IN THE SUPREME COURT OF UGANDA

#### AT MENGO

(CORAM: MANYINDO, D. C. J., ODER, J. S. C., & PLATT, J. S. C.)

#### CIVIL APPEAL NO. 6 OF 1990

**BETWEEN**

ERIDADI OTABONG WAIMO

#### A N D

THE ATTORNEY GENERAL

1 ICA

,,,,,,,,,,,,,,,,,,,,,,,,,,,,, RESPONDENT

::::::::::::::::::::::::::: APPELLANT

(Appeal from the order of the High Court of Usanda at Kampala (Kato $J.$ ) dated 7/6/1990.

I N

#### CIVIL SUIT NO. 65 OF 1988

#### JUDGMENT OF ODER, J. S. C.

On 18/1/1988, the appellant sued the respondent Attorney General in his representative capacity under the Government Proceedings Act (cap. 69) for special, general and exemplary damages for wrongful and unlawful arrest and detention.

plaint as constituting the cause of The facts stated in the action are that the appellant was arrested on 24/9/1986 by soldiers of the National Resistance Army and detained first at Busia Police Station and then at Mbuya Military Barracks, from where he was transferred to and further detained at Kampala Central Police Station for three months. Then on 3/12/1986, he was transferred to and detained at Jinja Road Police Station until 12/8/1987 when he was released; without having been charged in any court of law or served with any detention order. According to these facts, the appellant was in centinuous detention from the date of his arrest, $24/9/1986$ , the date wher, according to the plaint, the cause of action arose, up to the date of his release.

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At the hearing of the suit, the learned counsel for the respondent took a preliminary objection on the ground that the action had been brought out of time, it having been filed more than twelve (12) months from the date when the cause of action arose. It was, therefore, time barred by virture of the provision of the Civil Procedure and Limitation (Miscellaneous Provisions) Act 1969 (Act 20 of 1969) and should, therefore, be rejected under order 7, rule 11(d) of the Civil Procedure Rules, which provides that a plaint should be rejected where the suit appears from the statement in the plaint to be barred by any law. The learned trial judge upheld the objection. Hence this appeal.

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Five grounds were set out in the memorandum, but ground five. which stated that the learned trial judge erred in holding that the action for unlawful arrest was barred by limitation, was abandoned at the hearing. "PHILE TO GUITA SIM PHILE AND SHOP WERE AS

The remaining four ground are:-

- 1. That the learned trial judge erred when he failed to find that unlawful detention is a continuing tort. - That the learned trial judge erred when/failed to find $2.$ that the period of unlawful detention is severable for the purpose of limitation. - That the learned trial judge erred in holding that the App- $3.$ ellant's detention was barred by limitation. - That the trial judge erred in holding that the plaint failed $4.$ to specifically plead arrest as a disability for the purpose of limitation.

The appellant's action in this case is founded on tort and, as it is a suit against the Government, it is subject to the period limitation laid down in Act 20 of 1969, the relevant sections of which state as follows:-

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"2(1) No. action founded on tort shall be brought against,

(a) the Government,

. . . . . . . . . . . . . . . . . . . . $\cdots\cdots\cdots$ after the expiration of twelve months from the date on which the cause of action arose . . . . . . . . . . . . . . . . . . . .

$\overline{3}$

4 If on the date when any right of action occured for which a period of limitation is prescribed by this Act the person to whom it accurued 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 not-withstanding that the period of limitation has expired .......".

I will deal with grounds one, two and three together since they all criticise the learned trial judge's finding to the effect that the cause of action of unlawful detention was time barred. This is : . what he said in this regard in his brief order:-

> "It is not in dispute that the tort/arrest and that of the detention took place on $24/9/86$ and as pleaded in paragraph 4 of the plaint that is the date on which the cause of action arose therefore time started running against the plaintiff from that date in respect of both torts of unlawful detention/arrest from that date to the date when the suit was filed on $18/1/88$ . the statutory period of 12 months within which the suit ought to have been brought had expired. Time did not begin to run against the plantiff on his release from prison as submitted by the learned counsel for the Plaintiff; Siwali Kidumu vs Attorney General (1976) HCB 87 and Musambu vs West Mengo District Administration (1971) $EA. 379.$

Although the Plaintiff might have been under disability by possibly being detained in prison still he had to comply with the provisions of order 7 rule 6 of the civil procedure Rules by specifically pleadings where the plaintiff has pleaded that he was under ability until 12/8/87. It was stressed in the case of Iga vs Makerere University (1972) EA 65 and Siwali Kidimu vs. Attorney General (supra) that where the plaintiff wishes to rely on any excuption when caught up by the provisions of order 7 rule 6 of the CPR his failure to do so is fatal as provisions of that order is mandatory. In the instant case the plaintiff did not comply with this mandatory requirements to his own detriment".


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Where a period of limitation is imposed it begins to run from the date on which cause of action accrues. When, therefore, there is for instance a trespass, litel unlawful arrest, false imprisonment or other act which of itself constitutes a wrong, time begins to run from the act itself, or, if there be several acts, in respect of each act from the date/its commission. From the passage of the judgment of the learned trial judge referred to above, it appears that he treated the two causes of action in the instance case-unlawfull arrest and unlawful detention - together and equally without distinguishing one as distinct from the other. This led him to the conclusion that both causes of action having arisen on the same date were equally time barred when the suit was brought. I think that as the two causes of action were different in duration and nature, the learned trial judge ought to have considered the effect of limitation on them separately.

$:/of$

Regarding the effect of limitation on unlawful detention or false imprisonment authoritative court decisions in this jurisdiction appear to be lacking, but the sum total of text book statements and superior court decisions is quite clear. It is that such a wrong is necessarily a continuing tort so that the cause of action accrues continously through-out its duration. In "Clerk and Lindasell on Torts". 13th edition, paragraph 612, the position is stated thus:-

> "Where there is a continuing nuisance or a continuing trespass, every fresh continuance is a fresh cause of action and therefore an injured party who sues after the cessation of the wrong may recover for such portions of it as lie within the period limited".

Another text book - 'Franks on Limitation of Actions' at page 197 also states the same view.

Only two superior court decisions of this country appear to have dealt directly and clearly with limitation on false imprisonment as a cause of action.

In John Siya v. The Attorney General (1972) ULR part 1 p. 71, the plaintiff sued the Autorney General, inter alia, for lamages for wrongful arrest and false imprisonment. The plaint was filed on 5/5/1971. Counsel for the defendant raised a preliminary issue that the action was time barred. The plaintiff had been arrested on 1/1/1970, and was detained in custody until 11.8.1970. Counsel for the plaintiff conceded that the action for wrongful arrest was timebarred according to section 2(1) of Act 20 of 1969. With regard to the action for false imprisonment counsel for the plaintiff contended that such was a continuing offence and that a cause of action arose as long as the imprisonment continued. Wambuzi J. (as he then was) held that false imprisonment was a continuing injury and the effect of S.2 of Act 20 of 1969 was to wipe out so much of the injury as fell outside the 12 month period of limitation.

In Difasi v. The Attorney (1972) E. A.335 the plaintiff claimed dam-観でない。社 ages for wrongful arrest and false imprisonment. The plaintiff had been arrested and imprisonment on a charge of murder. The Director of Public Prosecution had directed the charge to be withdrawn and the accused released on 25.12.1969. He was not released, however until 19.7.1971. The defendant raised a preliminary point that the action was Statute barred under Act 20 of 1969. It was argued for the palintiff that false imprisonment was a continuing injury, a fresh cause of action arising each day that he was detained. Faud J. (as he then was) held that false imprisonment is a continuing tort with a cause of action accruing continuorly during the imprisonment, and that a claimant can recover in respect of imprisonment during the limitation period.

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I am of the view that the law as set out in the text books 1 have referred to and as expressed in the cases of Siya (supra) and Difasi (supra) the continuing nature of the tort of false imprisonment or unlawful detention and the effect of this attribute upon the law of limitation as provided in Act 20 of 1969 is correct. This means, therefore, that if the imprisonment began more than 12 months before court action but continued to a time within that period damages for so much of the imprisonment or detention as took place within the 12 months before the action may be recovered, although a plea of the statute prevents the recovery of damages for so much of the imprisonment or detention as took place outside that period.

Applying the law to the facts of the instant case, it is evident that the appallant is not statute-barred from attempting to establish his claim for unlawful detention from 18.1.1987. He does not have to at plead disability for his claim in respect of that period since it would be within the limitation. In the circumstances, grounds one, two and three of the appeal should succeed.

Ground four of the appeal, in my view, is devoid of merit. will therefore deal with it briefly. The appellant's cause of action for unlawful arrest accrued on 24.9.1986. He should therefore, have filed his suit in respect of that injury on or before 24.9.1987, but he did not do so until 18.1.1988, above four months outside the period of limitation. As 1 have discussed above, so much of his cause of action for unlawful detention for the period before 18.11987 was also statute - barred. In the circumstances he could claim exemption from limitation in respect of his injury for unlawful arrest and unlawful detention outside the period of limitation only by taking advantage of the provisions of order 7 rule 6 of the Civil Procedure Rules. This rule reads that:-

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"Where the suit is instituted after the expriration of the period prescribed by the law of limitation, the plaint shall show the grounds upon which exemption from such law is claimed".

$\overline{7}$

This rule, in my view, is mandatory. A plaint which does not show such ground must be rejected under order 7 rule 11, which is also couched in madatory terms. It says:-

> "The plaint shall be rejected in the following cases-

........a) where the suit appears from the the statement in the plaint to be barred by any law".

I find support for this view in Iga v. Makerere University (1972) \* EA 65 a Court of Appeal for East Africa decision.

The plaint in the instant case shows no grounds upon which exemption from limitation is claimed. Such exemption could be on grounds of disability under section 4 of Act 20 of 1969 stated above. "Disability" is not defined by the Act, but it must depend on the circumstances of each case. It may be wondered whether one whose cause of action is unlawful detention coupled with an unlawful arrest preceding it is not under a disability as long as the detention lasts. One thing however, appears to be certain. It is that if one wishes to rely on arrest and detention as a desability upon which exemption may be based one has to plead it specifically as required by $6.7 r.6$

As the plaint in the instant case did not plead any such a disability as an exemption from limitation, the learned trial judge was correct in holding that the failure to do so was fatal to the claim outside the limitation. Ground four of the appeal must, therefore, fail.

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In the result, I would allow this appeal to the extent indicated above, and order that the suit should be referred back to the High Court for trial of so much of the cause of action for unlawful detention that is within the period of limitation. With regard to costs, as the appellant abandoned one of his grounds at the outset, lost one of the grounds and succeeded on three, 1 would award him 3/5 of the costs of the appeal. The costs in the court below would abide the results of the suit.

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$A. H. O.$ ODER JUSTICE OF THE SUPREME COURT

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I CERTIFY THAT THIS IS TRUE COPY OF TH: ORIGINAL

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#### IN THE SUPREME COURT OF UGANDA

#### AT MENGO

CORAM: MANYINDO, D. C. J., ODER, J. S. C., AND PLATT, J. S. C.)

### CIVIL APPEAL NO. 6 OF 1990

BETWEEN

ERIDAD OTABONGO WAIMO **:::::::::::::::::::::::::: APPELLANT**

A N D ATTORNEY GENERAL 111111111111111111111111111111 RESPONDENT

(Appeal from decision and judgment of High Court by Mr. Justice C. M.<br>Kato on the 7/6/90 in H. C. C. S No. $65$ of 1989)

#### JUDGMENT OF MANFINDO D. C. J.

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I have read the judgment of Oder, J. S. C., and 1 agree that this appeal must succeed but only in part.

The problem in this case stems from the trial judge's finding 1464 Artists William Philadel Anound Thom that:

"Moved

"....... the tort of arrest and that of the detention took place on $\frac{34}{9}$ /86 and ..... that is the date on which the cause of action arose therefore time started running against the plaintif from that date in respect of both torts of unlawful detention and arrest. From that date to the date when the suit was filed on 18.1.88 the statutory period of 12 months within which the suit ought to have been brought had expired. Time did not start to run against the plaintiff on his release from prison as submitted by the learned Counsel for the plaintiff."

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As 1 understand it, the law on Limitation of suits under Order 7 of the Civil Procedure Rules is this. A suit filed out of time is time barred and it must be rejected unless grounds for exemption from the limitation are/down in the plaint: See Iga V Makerere University 1971 EA 65.

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If the plaintiff's suit is time barred it should not be dismissed; only the plaint should be rejected under Order 7 rule 11 of the Civil Procedure Rules, with the result that he or she can present a fresh plaint containing, inter alia, the exemption relied on under Order 7 rule 13.

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In cases of wrongful arrest, unlawful detention, false imprisonment and malicious prosecution, the plaintiff's time within which to sue the defendant begins to run after his or her release or acquittal. See: Musambu V West Mengo District Administration 1971 EA 379 and O'connor V Isaacs (1956) 2.). B. 288 at 328.

The appellant's plaint was clearly bad in respect of the unlawful arrest as it was time barred. But as false imprisonment is a continuing tort the appellant's claim for damages for the imprisonment outside the period of limitation was valid. In order to recover damages for the period covered by limitation the disability would have to be be pleaded. As it was not pleaded in this case the appellant's claim for damages for the period from 24.9.86 to 18.1.87 could not be entertained by the High Court. The trial judge should have rejected the plaint to that extent only. The suit should then have gone on in respect of the period which was not affected by the limitation. As Platt, J. S. C., also agrees with the judgment of . Oder, J. S. C., the appeal is allowed to the extent that suit is reinstated for hearing only in respect of the appellant's claim of damages for unwrongful detention from $18.1.87$ (when the plaint was filed) to $12.8.87$ (when he was released from custody). The Order for costs shall be in the terms proposed by Oder, J. S. C.

$27^th$ DATED at Mengo this.

day of February, 1991.

SGD. S. T. Manyindo DEPUTY CHIEF JUSTICE

I CERTIFY THAT THIS IS **FRUE COPY OF THE** ORIGINAL

**B. F. B. BABIGUMIRA** REGISTRAR SUPREME COURT