[2008] UGCA 25

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

### CIVIL APPEAL NO. 06 OF 2OO4

CORAM:

# HON. JUSTICE A. E. N. MPAGI. BAHIGEINE, JA HON. JUSTICE C. N. B. KITUMBA, JA HON. JUSTICE S. B. K. KAVUMA, JA

l0

W. H. R. WANYAMA APPELLANT

#### YERSUS

## l5 1. CITY COUNGIL OF KAMPALA

2. CITY GOUNCIL OF KAMPALA NAKAWA:::r::r RESPONDENT (Arising from the Ruling of Justice Lameck Mukasa in HCCS No. 26 of 2003)

## JUDGEMENT OF HON. A. E. N. MPAGI. BAHI GEINE JA

l0

This appeal arises from the Ruling and Orders of the High Court, dated 14-5-03, dismissing the suit for being timebarred.

25 The background is that W. H. R. Wanyama, the appellant herein, was an employee of the 1't and 2nd respondents both

/

of which are local authorities. He resided at Naguru Housing Estate which property belonged to both respondents.

On 22-01-03, the appellant filed HCCS No. 26 of 2003 against the respondents claiming special damages for loss occasioned to his properties at Naguru, by a falling tree. He alleged that on or about the 18-10-2000 a tree in the appellant's compound fell on his house and motor vehicle, No Reg. No. 653 UBB, severely damaging the house with all contents therein including the vehicle. l0

At the hearing, the learned trial judge, on a preliminary objection raised by the respondent's counsel, dismissed the suit for being statute-barred. Hence this appeal on that ground and the remedies available to the parties.

l5

Mr. Richard Okalany appeared for the appellant while Mr. Bernard tVutyaba represented both respondents.

Mr. Okalany argued that there was an acknowledgement by the respondents of their obligation to pay compensation to the appellant, thus renewing the cause of action. 20

)

He referred to paras 8, 9 & 10 of the plaint which he claimed supported the acknowledgement. These read:

- The plaintiff avers that, steps were taken by the **"8.** defendants to compensate him and that time and again the officers of the defendants have made undertakings both verbally and by written correspondence to pay him. - The plaintiff further avers that by a letter dated $12^{th}$ $9.$ June 2002, the $2^{nd}$ defendant outrightly rejected his claim alleging that it was the responsibility of the $1^{st}$ defendant and yet the $1^{st}$ defendant had directed the $2^nd$ defendant to handle the plaintiff's compensation claim. Attached hereto is a copy of the said letter marked annexture "A". - That todate the $1^{st}$ defendant insists that it is the $$ obligation of the $2^{nd}$ defendant to compensate the plaintiff as per letter dated $5$ ^th November 2002 hereto attached as annexture "B"."

Learned counsel submitted that on basis of the correspondence referred to in the plaint the respondents acknowledged the appellant's claim. The two year period of limitation was renewed $25$ under Section 22 (4) Limitation Act (Cap 80); He also relied on Busch V Stemend (1962) 1 AER 451 and Dungate V Dungate (1963) 2 AER 818, pointing out that the effect of these authorities was that the appellant's suit was rekindled and could not therefore be said to have been time-barred. 30

$\overline{3}$

$10$

$15$

$\mathsf{S}$

tvlr. Okalany further submitted that in view of lhe 2 letters referred to above the issue of limitation should have been tried by the Judge.

5 He referred to the letter, annex 'B', by the City Advocate, who is a senior officer of the 1't respondent, and is taken to know the implications of his/her actions. He advised the respondents to pay. He cited on Sayikiro Murewe V Yovan Kuko & Another (2955) HCB 256 which he never tendered in court. He also argued that under articles 126 (1) (e) and 273 of the Constitution, reconciliation should have been promoted between the parties. The appellant's employee position should have been appreciated in that he would not rush to file a suit against his employer, who had undertaken to compensate him. He prayed court to refer the matter back to the High Court for trial on merit. l0 t5

Mr. tVlutyaba for the respondents opposed the appeal contending that the suit was clearly time-barred under Section 3 (1) Civil Procedure Limitation Miscellaneous Provisions Act (Cap 72) - which prescribes a period of two years from the date of the cause of action, within which to file a suit. The cause of action arose on 18-10-2000. The suit was filed on 22-01-2003, after the limitation period' He pointed out that lhe Limitation Act (Cap 80) relied on by Mr'

I

Okalany was inapplicable to this matter in view of the specific provision of section 32 thereof.

5 Referring to the alleged acknowledgement, ttlr. tvlutyaba argued that there was no admission on part of the respondents as the Executive committee rejected the claim outright. Both respondents are different legal entities and were referring the appellant to each other.

Concerning the City Advocate's letter of 5-11-2002, Annex 'B', learned counsel asserted that itwas an internal memo advising the 2nd respondent to settle the matter. lt was not binding advice and was never copied to the appellant' He stated that the Advocate's role is advisory and not binding' The respondents who a re each body corporate take their own decisions. Therefore in his view there was no acknowledgement. l0 l5

Learned counsel pointed out that an acknowledgement has to be communicated to the person concerned' There was no such communication from either of the respondents to the appellant.- Madhvani lnternational V Attorney General HCCS No.787/2002.

Referring to the pleadings tt4r. IVutyaba contended that the appellant never pleaded disability which under section 5 of Civil Procedure and Limitation Miscellaneous Act would have been applicable. This disability has to come out in the pleadings. Nor was any promise to pay pleaded. The Judge was thus right to rely on Peter Mangeni Ua Makerere lnstitute of Commerce V DAPCB SCCA No. 13 of 1995.

Mr. Mutyaba submitted that the suit was clearly filed out of time. Concerning article 126(1) (e) of the Constitution, relied on by Mr. Okalany learned counsel asserted it was inapplicable since there was a specific provision relating to the case. This was a mere moral appeal by Mr. Okalany. l0

ln reply Mr. Okalany referring to annexture 'A' page I of the Supplementary Record, paragraph 2, stated that the authority required the City Advocate to effect the claim which meant that the claim was not disputed. He pointed out that there was uncertainty between the respondents as to who was to pay. This would have to be resolved by trial. ln his view therefore Section 32 of the Limitation Acf does not apply. He prayed l5 2l)

court to allow the appeal.

The learned trialjudge held:

"Despite the negotiations it was still incumbent upon the plaintiff to have filed the suit within the statutory period and thereafter proceed under Order 10 B to explore possibilities of mediation, arbitration or any other form of settlement. In light of the submissions of counsel for the plaintiff may be court could have even ordered from Alternative dispute resolution under rule 2 of the above order (sic).

In the result I find that the plaintiff suit is time barred by $10$ the provisions of Section 2 (I) of the Civil Procedure and Limitation (Miscellaneous Provisions) Act as amended by Act 11 of 2000. I accordingly uphold and dismiss the plaintiff's suit with costs."

$15$

$\mathsf{S}$

Mr. Okalany relied on the *Limitation Act (Cap 80), Section* $22(4)$ which provides:

Where any right of action has accrued to recover $(4)$ any debt or other liquidated pecuniary claim, ......., and the person liable or accountable therefore acknowledges the claim or makes any payment in respect of the claim, the right shall be deemed to have accrued on and not before the date of the <pre>acknowledgement...................................

$25$

$20$

Be that as it may, section 32 of the same Act provides

### "32. Saving for other limitation enactments.

This Act shall not apply to any action or arbitration 30 for which a period of limitation is prescribed by any other enactment, or to any action or arbitration to ## which the Government is a party and for which, if it were between private persons, a period of limitation would be prescribed by any other enactment."

- Clearly Section 32 only refers to periods of limitation which might be prescribed by other enactments and not to other matters incidental thereto, like acknowledgement. - 'Acknowledgement is defined by **Black's Law Dictionary**, $10$ $6$ ^th *Edition* as:

# "To admit, affirm, declare, testify, avow, confess or own as genuine."

Paras 8 and 9 and 10 (supra) of the plaint which Mr. Okalany $15$ indicated acknowledgement of the debt by the claimed respondents do not in my view contain even the remotest intention to acknowledge the indebtedness and willingness to compensate the appellant.

$20$

$\mathsf{S}$

The letter "A" dated 12^th June 2003 from the City Council of Kampala, Nakawa Division concludes:

"The committee once again rejected the compensation *to you on the same ground ....................................* attached Appendix)

$25$

The Minutes recommended:

"That the request for compensation of Shs. 8 M to Mr. W. H. R Wanyama tenant of house P.20 Naggulu Estate be rejected for the following reasons:-

- $(a)$ The incident was a natural calamity, which cannot $\mathsf{S}$ be insured. - The estate where the property claimed to have been $(b)$ damaged belongs to the centre not the Division, therefore even if there was to be any compensation it was directed to the wrong authority."

This is shifting the blame thus disclaiming responsibility. It is not an admission.

Further para 10 of the plaint reads:

$10$

$15$

That todate the $1^{st}$ defendant insists that it is the $"10.$ obligation of the $2^{nd}$ defendant to compensate the plaintiff as per letter dated 5^th November 2002 hereto attached as annexture "B"."

"B" is the letter from the City Advocate dated 5-11-2002 which reads:

"We wish to reiterate the City Treasure's 25 position that since the Division is directly in control of the management of Housing, you should arrange to compensate the said will save council unnecessary costs in litigation. ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, 30

The City Advocate's advice was given to his/her client. This was mere advice which the client was at liberty to accept or decline. Advice is never binding. It was moreover not copied to the appellant. He cannot thus rely on it and plead acknowledgement of his debt. As pointed out by Mr. Mutyaba, acknowledgement of indebtedness must be communicated to the party owed the money – Madhvani International Vs Attorney General HCCS

NO. 787/2002.

$\mathsf{S}$

The learned trial judge quite correctly relied on **Peter Mangeni** 10 t/a Makerere Institute of Commerce Vs D. A. P. C. B. SCCA No. **13 of 1995**, where Kanyeihamba JSC put it most succinctly:

"....... An offer to negotiate terms of settlement between parties to an action, admirable as it may be, has no $15$ effect whatsoever on when to serve a statutory notice or file a suit in time. It is my opinion that even where genuine and active negotiations are going on or contemplated between the parties, it is still incumbent upon those who need to file documents to do so within $20$ the time allowed. Therefore, they are at liberty to seek adjournments for purposes of negotiations."

Indeed this is the time-honoured practice in our courts. 25 Adjournments are always being sought in open courts either with a view to reach a settlement or to finalise out terms of a settlement initiated before the suit was filed.

I should conclude by pointing out that no acknowledgement exists in the correspondence referred to; the authority of Busch VSfevens (1962) I AER 412 exhaustively relied on by Mr. Okalany is rendered irrelevant since it specifically deals with rules of pleadinq in respect of an acknowledgement of a debt. The appellant's pleadings (supra) never reflected any acknowledgement.

l0 I5 ln Dungate V Dungate (1965) 3 AER 878 also cited by lVr. Okalany, the defence that the claim was statute - barred failed because a letter made it plain that there were amounts owing and outstanding from G. to the plaintiff, and so such letter was a sufficient acknowledgement of the plaintiff's claim to make time under the Limitation Act run afresh from the date of such letter. There is no such evidence in the case before us, only vague assumptions from the appellant.

20 The appellant further sought to invoke article 126 (2) (d) and (e) of the Constitution oblivious of the fact that this article however sacrosanct cannot replace a specific provision of any given law. Itcan only come into play to prevent a flagrant and avoidable injustice.

l1

I strongly disagree with the appellant's sentiment that the court should look at the peculiar relationship of employer vis a vis employee where if the appellant tried to take his employer to court, he would be trying to bite the hand that feeds him. This is a bit idle. By exhibiting such timidity, he has only himself to blame. With much sympathy he should be more assertive in safeguarding his rights.

l0 I would have no option but to dismiss this action with costs for being time - barred.

Since my Lords Kitumba and Kavuma JJA both agree the appeal stands dismissed as above indicated.

l5

a

Dated at Kampala this day of 2008.

## ²⁰ HON. A. E. N. MPAGI. BAHIGEINE JUSTICE OF APPEAL

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA **AT KAMPALA**

### **CORAM: HON. JUSTICE A. E. N. MPAGI-BAHIGEINE, JA.** HON. JUSTICE C. N. B. KITUMBA, JA. HON. JUSTICE S. B. K. KAVUMA, JA.

#### CIVIL APPEAL NO. 06 OF 2004

**W. H. R. WANYAMA ::: :::::::::::::::::::::::::::::::**

#### **VERSUS**

#### $\overline{1}$ . **CITY COUNCIL OF KAMPALA**

$2.$ **CITY COUNCIL OF KAMPALA**

NAKAWA :::::::::::::::::::::::::::::::::: (Arising from the Ruling of Justice Lameck Mukasa in HCCS No. 26 of 2003)

#### **JUDGEMENT OF KITUMBA, JA.**

I have had the benefit of reading in draft the judgement of Mpagi-Bahigeine, JA and I concur. I have nothing more useful to add.

<table>

Dated at Kampala this ....................................

C. N. B. kitumba **JUSTICE OF APPEAL**

### THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA, AT KAMPALA

# CORAM: HON. JUSTICE A. E. N. MPAGI-BAHIGEINE, JA. HON. JUSTICE C. N. B. KITUMBA, JA. HON. JUSTICE S. B. K. KAVUMA, JA.

### **CIVIL APPEAL NO. 6 OF 2004**

### **BETWEEN**

W. H. R. WANYAMA..................................

### **AND**

- 1. CITY COUNCIL OF KAMPALA - CITY COUNCIL OF KAMPALA $2.$ NAKAWA DIVISION................................... (Arising from the Ruling of LAMECK MUKASA, J, in High Court Civil Suit No. 26 of 2003)

# **JUDGMENT OF HON. JUSTICE S. B. K. KAVUMA, JA.**

I have had the advantage of reading in draft the judgment prepared by A. E. N. Mpagi-Bahigeine, JA. I concur with that judgment and the orders made therein and have nothing useful to add.

Dated at Kampala this....................................

S. B. K. Kavuma **JUSTICE OF ARPEAL,**