[1992] UGHC 76

#### THE REPUBLIC -OF UGANDA

### IN THE -HIGH COURT OF UGANDA AT ILJ4PALA

## CIVIL SUIT NO. 123/89

ELLY B. MUGABI PLAINTIFF

# VERSUS

NYANZA TEXTILE INDUSTRIES LTD. DEFENDANT. BEFORE:. The Honourable Mr. Ag» Justice F. M. S. Egonda Ntende. ^R ^U LIN G.

This ruling arises out of a preliminary objection raised. by counsel for the Defendant when the case came for hearing that the plaintiffs claim in respect of personal injuries is barred by Law and ought to be rejected by this court. On the 23rd March, 1989 the plaintiff through his Advocates M/S Ayigihugu. and Company filed a plaint in this court whereby he claimed special and general damages for personal injuries, special and general damages and a declaration in respect of • ^< • •• \ . . his employment by the defendant.

The relevant parts of the amended plaint that deal with the olaim for personal injuries are paragraphs 3f13f1^f15» and 16\* I will set out para. 3? 13»1S and 15

> "3 The plaintiff's claim against the defendant arose in 1970 and June 1986 and continue to arise daily are for his salary and benefits, declaration that he is still an employee of the defendant and for

- it special and/General, damages arising, out of :his .\*111 health occassioned to him during and • • ' ... ; . *i •• as a* result of his employment with the defendant.n - 13o"At all material times to the matters hereafter ' cpjjiplairfe'd'' of which arose in 1961 and continue to arise daily the^plaintiff was employed by the defedant in.the. defendants.spinning department at first and later by promotions '\* ' " -\* /• *■■*. . ' ' ' '' as its Administrative Executive at the 'defendants said^industry at. jlNJA." - 14." The plaintiff while in the course of his employment was engaged in work in the defDu«t Chambers\*.-of the spinning department at the said factory where he was exposed to • a- considerable concentration of cotton dust and inhaling such cotton dust in con.r.ru-jue'-'^ - whereof the plaintiff sustained severe injuries and has suffered loss and damage. - (i) H - **tr** ⁹ (ii) J# - **If** 15" ^f' The said injuries and loss and damage in para# 13;hereof were occasioned to the plaintiff by reason of a breach/negligence on the part ..of the defendant, its servants or agents of their statutory duties under sections 15(l) and 53 of the Factories Act. (Cap# 198)#

## Particulars of Breach/Negligence

(a) In connection with the dust chamber of the spinning department at the said factory, there

was given.off cotton dust of such a character and to such extent as to be likely to be injurious to the persons including the plaintiff, employed?;there; but the defendants did not take any .or any practical measures to protect the persons, including the plaintiff employed in the said factory against inhalation of the said dus;t or to' prevent its accumulating in the workroom including .the .said dust chamber: of the said factory as required by the provisions of section 5(1) of the ractories Act. (Cap. 198) or at all. And'.-the plaintiff dims .damages..:\*" •.

Paragraph 16 of- the plaint sets out particulars-of • detailing his medical history since he joined the service of the defendant in 1961. It is stated in the said report that was cotton dust floating all protective /.masks. The plaintiff since, then continued around and not being provided. with ^A year la-ter the plaintiff developed Bronchial service and working..in iijs Spinning Department the plaintiff developed chest problems i;.e. constant coughing as a result of a healthy man before joining the defendant, or. negligence and . or breach of duty, and all are related to tjie dust chambers of the. Spinning Department of the defendants factory. Annexture "F" to the plaint.is a medical report on the plaintiff Asthmatic attacks, and he was recommended .to. leav\$. the Spinning department which however, did not take place until 4 years later, putting it some where in 1967\* the plaintiff 1st Jan, 1961 and .that.6 months after joining the defendants

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to suffer from this ailment and in the opinioh of the author of the medical report it is a permanent ailment in his life\*

Counsel for the defeddant Miss Susan Bisharira submitted that the plaintiffs claim for personal injuries was barred by lav/ of action arose\* She argued that the' cihaim was brought over 20 ; years after the.alleged cause of action arose. section 4 of the Limitation Act and Order 7 Rule 11 of Civil that the plaint did not disclose any grounds for exemption as required by Order 7 rule 6 of the Civil Procedure Rules\* And that indeed there are no grounds available up<m which exemption to section 4 of the Limitation Act can be made. She relied on as it was not brought within J years from the time the cause Procedure Rules and prayed that the claim for personal injuries be rejected. Counsel for the defendant further submitted

Ltd\* Vs. His Eminence Cardi nal Nsubuga and Anor. 1982 H\*C\*B 11 and (2) Iga Vs. Makerere University 1971(l) U. L. R 121\* Counsel for the defendant referred this court in support of her submissions to the cases of (d) Makula International

Counsel for the plaintiff Mr. Alex Rezida opposed the preliminary objection submitting that the claim for personal for the plaintiff was concerned time had not started to run at all as the injuries were continuing\* injuries was not barred by the Limitation Act because the cause of action which gave rise to the claim fcr personal . a injuries was^continuing cause of action as the plaintiff continued to suffer from the personal injuries alleged. As far as counsel

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In the alternative counsel for the plaintiff submitted the Limitation Act\* the Spinning Department of the defendants factory\* Counsel action did arise in 1988 after the said discovery\* He therefore prayed that the preliminary objection be dismissed with costs. that there was an exemption.from section 4 of the Limitation Actin-which the plaintiffs' case lay and this is section 22 of He argued that the plaintiff was under a disability of ''Ignorance" until 1988 ■«.» when Annexture "F" to the plaint was made and he ^b'Ariie to realise that his permanent Jr... .1 v.-'- \ ailment was the result of his exposure in the dust chambers of for the plaintiff strenously .argued that in such a case time would only begin to run in 1988 when the plaintiff ''discovered" the cause of his personal injuries and or that the cause of

'Section 4 of the Limitation Act provides;-

(a) actions, founded (b) ' (c) \_ \_\_\_\_\_\_ PROVIDED that in the case of actions for damages for negligence, nuisance, or Breach of ^Duty • •••••••••••\*...........«•••\* (1) Uhe following actions shall not A. be brought after the expiration of six years from the date on which the cause of action arose, that is td¹ say on contract or tort

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or where the damages claimed by the plaintiff for negligence, nuisance, breach of duty consist of or include damages in respect of personal injuries to any person this subsection shall have effect as if for the reference to six years there substituted a reference to three years. "

It is not. in dispute that the nature of personal injuries for which the plaintiff claims ddmages are the nature of injuries that are contemplated by the above provisions. Claims in respect of such injuries must be brought before the expiry of 3 years from the date when the cause of action arose.

''arose in 1961 and continue "'to arise daily.\* Department of the defendants factory. It is clear from a to when he was transfered to the sales department of the defendants factory. reading of Annexture ''F" to the plaint that this exposure the. Dust Chambers by the plaintiff was terminated in 19&7 13 of the plaint the matters complained of are said taJiave " Paragraphs 14, 15, and 16 of the plaint ^yer that the cause of the personal injuries which the plaintiff is alleged to have suffered is the plaintiffs exposure in the dust chambers of Xhe Spinning In para. 3 of the plaint the plaintiff sets out whenthe plaintiffs claim arose which is stated to be in 197O« ; In-\*.para.

I plaintiff that the, cause of action in this case had continued am not persuaded by the submission of counsel for the

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continuing one to arise daily because the plaintiffs permanent ailment wnich is alleged to have been caused by the exposure of the plaintiff to the Bust Chambers, of the defendant. Much., as the personal injuries for which the plaintiff claims d.amages,are perms^ent this does not in my view convert the cause of action inter :4I.; *i n* .

or ommissions of the defendant inflict damage upon the .plaintiff. As long as the defendants acts or omissions which, are. .complained of by the plaintiff continue then the cause of action could. be said to be ^continuing .and would so continue until the defendant stops the acts or omissions complained of. This But where the acts or then in such a situation the cause of action cannot be said not have risen beyond 1967\* the latest date in Para. J of the plaint which is 1970 then the cause of action with respect to personal injuries arose well beyond the time provided under section 4 of the Limitation Act which is J years. may be so in cases of Trespass. omissions ofi the defendant which cau^e of action arises when a right of the plaintiff is affected by the defendants acts or ommissions and such acts are complained of have stopped to be continuing. I find that' on the face of the plaint : *n'.* •• and annextures attached thereto the cause of action could ,r ..1. But even if one accepted

I again reject the submission by counsel for the plaintiff that the plaintiffs claim for personal injuries is exempted from the operation.o €. section 4 of the Limitation Act by

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section 22 of the said Act which provides for "disability" as an exemption to the operation of section 4 of the Limitation Act. It was strenously argued that the plaintiff was under the disability of "Ignorance" of the cause of his ailment and a as such he is exempted under section 22 of the Limitation Act and that time did not begin to run until he discovered $\cdots \rightarrow \cdots$ the cause of his ailment in 1988. In my view the alleged $\gamma_{k\alpha}$ $\perp$ $\cdot$ $\cdot$ $\mathcal{L}_{\mathcal{M}}(\mathcal{L}_{\mathcal{M}}, \mathcal{L}_{\mathcal{M}})$ ignorance in the instant case cannot amount to a disability under section 22 of the Limitation Act. The plaintiff or any Wordinary and reasonable person in his place, who recieved medical treatement regularly from the time the ailment first appeared and was transfered from the dust chambers as it was noted to be the cause of his health problems cannot claim ignorance of the cause of his ailment as a disability. On the facts of the instant case the alleged ignorance cannot qualify to be a disability under section 22 of the Limitation Act.

In any case even if that were not to be the case the plaintiff did not disclose the said disability of ignorance in his plaint as a ground for exemption as is required by Order 7 rule 6 of the Civil Procedure Rules which provides;-

> ¹¹ Where the suit is instituted after the expiration of the period prescribed by the Law of Limitation the plaint shall show the grounds upon which exemption from such Law is claimed. "

In my view the above rule is mandatory. A plaintiff must state in the plaint the grounds upon which a claim barred by $3$

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the Law of Limitation is exempted from such Law. Having failed to comply, I have no alternative but to uphold the preliminary objection raised by counsel for the defendant. In doing so I take comfort in the words of Law Ag. $V_{\bullet}P_{\bullet}$ (as he then was). in Iga Vs. Makerere University 1971(1) U. L. R. at Page 125 when he said;-

> " I have no doubt that section 4 of the Limitation Act and Order 7 of the Civil Procedure Rules must be read together. The effect then is that if a suit is brought after the expiration of the period of Limitation and this is apparent from the plaint, and no grounds of exemption are shown in the plaint, the plaint must be rejected. $\mathbb{I}^*$

The plaintiffs claim for personal injuries is rejected under Order 7 rule 11(d) of the Civil Procedure Rules and it is so ordered with costs to the defendant.

Ag. JUDGE.<br> $\frac{1}{5}$ UDGE.

$6/2/92$ Time: 2.35 P. M

Susan Bisharira for the Defendant Counsel for the Plaintiff Absent. Plaintiff - Absent. Lucy Nakazzi - Interpreter Counsel for the Plaintiff Mr. Alex Rezida Arrives During the Reading of the Ruling. Ruling Delivered.

Aus Gundunkep.<br>F. M. S. Egonda Ntende<br>Ag. JUDGE