Monday, October 29, 2012

Exceptions to Statutory Limitation in Uganda's Civil Procedure Law

This analysis to address the principles upon which exemption from limitation in civil proceedings may be claimed. Whereas the rules of civil procedure and Limitations should be complied with, as a general rule, just like many other legal principles, there are exceptions. Such provisions under the Limitation Act, Chapter 80 and The Civil Procedure and Limitation (Miscellaneous Provisions) Act, Chapter 72 Laws of Uganda should be complimentary to the relevant provisions in the Civil Procedure rules. Their purpose is to aid the judicial process as handmaids of justice, and not to stifle and impede the course of justice with unfair procedural technicalities. It is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. Limitation refers to statutory rules limiting the time within which civil actions can be brought. Thereafter, a potential plaintiff is barred and may no longer bring his action. Litigation will automatically be stifled after expiry of a prescribed length of time irrespective of the merits of a particular case. Statutes of limitations are in their nature strict and inflexible enactments. Their overriding purpose is interest reipublicae ut sit finis litum, meaning that litigation shall be automatically stifled after fixed length of time, irrespective of the merits of the particular case. The Public Policy behind the statute of Limitation [of England] has been clear since 1603. A time must come when the defendants can relax and known that actions against them are time barred. It has been observed that; "...the statute of limitation is not concerned with merits. Once the axe falls, it falls, and a defendant who is fortunate enough to have acquired the benefit of the statute of limitations is entitled, of course, to insist on his strict rights." Where a period of limitation is imposed, it begins to run from the date on which the cause of action accrues. But, where a Plaintiff pleads facts from which a reasonable inference can be made that the suit is not time barred, then the issue of limitation is a triable issue which can only be determined after hearing the evidence on the matter. The Civil Procedure rules oblige this court to reject a plaint in a number of circumstances, which include, where the suit appears from the statement in the plaint to be barred by any law (including the Limitation Law ). This is the general rule. Consequently, courts have enforced it to the letter in most instances. For instance, in Iga vs. Makerere University , the appellant sued the respondent in tort for damages for personal injuries, the action having been filed outside the limitation period for such an action. It was held that the claim was barred by the Limitation Act and therefore could not be entertained by the court. The above position of the Law postulates the general rule. However, just like in most scenarios under the Law, to every general rule there are exceptions. In Uganda, judicial power is derived from the people and courts are enjoined to deliver justice with undue regard to technicalities. Furthermore, statutory provisions enshrined in Sections 21-25 of the Limitation Act and Sections 5 and 6 of the Civil Procedure and Limitation (Miscellaneous Provisions) Act also expressly provide for exceptions to the strict application of the statutory Limitation period. However, courts have no inherent jurisdiction to enlarge time once set out by statutes of Limitation since time limits set by statutes are matters of substantive law and not mere technicalities and must be strictly complied with The exceptions are discussed hereunder; Disability This means;- 1. The inability to perform some function; an objectively measurable condition of impairment physical or mental (insanity, minority, etc) 2. Incapacity in the eyes of the law. When a suit is filed outside the limitation period, the plaint should show the nature of disability or exception. A person is deemed to be under a disability while he is an infant or of unsound mind. From the authorities, these two categories are not exhaustive. It has been defined to mean and include any incapacity whatever that would hinder a person from performing a required act. Therefore, a person on remand facing a criminal charge has been held to be under disability to institute a suit. That is why in cases of unlawful detention and false imprisonment, the Limitation period begins to run after the release of the plaintiff. The short and long of this exception is that that to be incapacitated is to be rendered physically or mentally incapable of taking the action required. Acknowledgement and part payment is the other exception to the strict application of the statutory time Limitation provisions. This is provided for under section 22 of the Limitation Act. Subsection 4 thereof provides that where any right of action has occurred to recover 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 occurred on and not before the date of acknowledgement or the last payment. The effect of the above provision is that such acknowledgement of the debt or payment rekindles the time which had otherwise expired. Courts have also held that this specific section applies to governments and scheduled corporations. This exception was invoked in the decision of the Commercial Court of Uganda in Greenland Bank (In Liquidation) v Dr. Apuuli Kihumuro & Anor where a preliminary objection was raised to the effect that the suit was time barred because according to the plaintiff’s pleadings, the defendants operated an account; they over drew it; and a sum of Shs.68, 104,587- was outstanding, and further that according to the pleadings, the last amount is indicated on the statement of Account as having been withdrawn on 6/10/95. That a demand was made in 1999 but a suit was not filed until 2003. Therefore, it was counsel’s contention that the cause of action accrued to the plaintiffs in 1999 when a demand for payment was made and the defendants ignored it. Accordingly, it was the view of counsel that when the plaintiffs filed the suit in 2003, the same was not time barred. In resolving this, Justice Yorokamu Bamwine remarked that; “The plaintiffs have pleaded the defendants’ purported acknowledgement of a debt in para 4 (e) of their plaint. Assuming this to be the case, then S. 24 of the Limitation Act appears to be applicable. Under that law, where any right of action has accrued to recover a debt or other liquidated pecuniary claim and the person liable or accountable thereafter acknowledges the claim or makes any payment in respect thereof, the right shall be deemed to have accrued on and not before the date of acknowledgement or the last payment. Since the plaintiffs have pleaded the fact or the alleged act of acknowledgment of a debt by the defendants, this now makes it a triable issue.’’ In his holding, he observed that Generally speaking, a debt is repayable when it is due. And that date becomes the date when the cause of action arises. Coming specifically to Bank Law, the Court was of the view that a banker cannot recover a dormant overdraft more than six years after the last advance. For purposes of this case, this appeared to have been 6/10/95. This was taken as the date when the last over draft was extended to the defendants. A suit filed after more than 6 years would fail unless a demand for payment is on record to have been made in between. In the instant suit, the last overdraft was extended to the defendants in 1995. A demand was made for its payment in 1999. The suit would only have been time barred if, in 1999 no such demand had been made and the suit was filed after 2001. For this reason alone, the learned judge accepted Mr. Sembatya’s (for the plaintiff) argument that the suit is maintainable against the defendants. The effect of acknowledgment or part payment of a debt or other liquidated sum is that time which had started to run against the creditor may be stopped and made to start a fresh by an acknowledgment of liability or by a part payment made by the debtor. If a debt is acknowledged, it is immaterial that the amount of debt claimed is disputed in the acknowledgment. Fraud and mistake are the other exceptions to the general rule to strict application of Limitation as discussed above. Fraud implies some act of dishonesty. It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. Fraud, however, is a conclusion of law. If the facts alleged in the pleading are such as to create a fraud it is not necessary to allege the fraudulent intent. The acts alleged to be fraudulent must be set out, and then it should be stated that these acts were done fraudulently, but from the acts fraudulent intent may be inferred. Fraud by its very nature is an illegality, and Court of law cannot sanction what is illegal and illegality once brought to the attention of the Court, overrides all questions of pleadings, including any admissions made thereon. Circumstantial evidence suffices to prove fraud. On the other hand, mistake applies only where the mistake is an essential ingredient of the cause of action, where the statement of claim sets out the mistake and its consequences and prays for relief from the consequences. The right of action is for relief from the consequences of a mistake. It seems to me that this wording is carefully chosen to indicate a class of action where a mistake has been made and has had certain consequences and the plaintiff is seeking to be released from those consequences. The above provision extends the limitation period where the plaintiffs action is for relief from the consequences of a mistake and time begins to run from the time when the plaintiff discovered the mistake or could with reasonable diligence have discovered the mistake. Courts have also adjudicated on the issue of fraudulent concealment. Concealment or omission perse is not an element of fraud. There should be a fraudulent intent to conceal or omit. For instance, fraudulent concealment has been defined, in relation to an action to recover property, as designed fraud by which a person, knowing to whom the right belongs, conceals the circumstances giving the right and by means if such concealment enables himself or some other person to enter and hold property. By and large, a Court cannot conduct its business without a code of procedure. The relation of rules of practice to the work of justice is intended to be that of a handmaid rather than mistress, and should not defeat the noble cause of justice. The Court ought not to be so far bound and tied by rules, which are after all only intended as general rules of procedure, as to be compelled to do what will cause injustice in the particular case. BIBLIOGRAPHY Constitution of The Republic of Uganda, 1995 (as amended) The Civil Procedure rules The Limitation Act, Cap. 80 Laws of Uganda The Civil Procedure and Limitation (Miscellaneous Provisions) Act, Chapter 72 Laws of Uganda Text Books Harlsbury’s Laws of England 3rd Ed Vol. 24 Musa Ssekaana & S. N. Ssekaana; Civil Procedure and Practice in Uganda, Law Africa Walter Blake Odgers; Odgers on Pleading and Practice. Ninth edition, Stevens & Sons, Ltd. 1926 Oxford Dictionary of Law 7th Ed; Oxford University Press, Page 328, ISBN9780199551248 Musa Ssekaana & S. N. Ssekaana; Civil Procedure and Practice in Uganda, Law Africa: Page 69 ISBN 4200006200 . His Lordship Justice Berko in In the matter of an application by Mustapha Ramathan for orders of certiorari, prohibition and injunction, Civil Appeal No. 25/96 Supra, 3 the application was in fact made on 25th day of April 1996. That was obviously more than six months after the Minister’s order or decision. Uganda is a former British Protectorate that applies principles of the English Common Law by virtue of the reception clauses in the 1902 Order in Council Salmond & Heuston on the Law of Tort 21st edition at page 558 Lord Greene MR in Hilton vs. Steam Laundry (1946) 1 KB 61 at page 81 Eridad Otabong vs. Attorney General, S.C. C.A. 6/1990, (1991) ULSLR 150 Sayikwo Murome vs. Yovani [1985] HCB 68, Odoki J, as he then was Order 7 Rule 11 (d)of the Civil Procedure Rules In Uganda, the Law governing the subject matter is the Limitation Act, Cap. 80 Laws of Uganda, and The Civil Procedure and Limitation (Miscellaneous Provisions) Act, Chapter 72 Laws of Uganda [1972] 1 EALR 63 The spirit behind Article 126 (e) of the Uganda Constitution, 1995 as amended Uganda Revenue Authority Vs. Uganda Consolidated Properties (1997 – 2001) UCL 149(Justice Twinomujuni ,JA) Blacks Law Dictionary’s (7th Edition) p. 474 [Emphasis mine] H. J. Stanley & Sons Ltd Vs Said Narrow Zakor (1963) E.A. 565. Where a plaintiff wishes to rely on any exemption to the periods of limitation it must be specifically stated in the pleadings. If it is not the plaint should be rejected as held in Iga Vs Makerere University (1972) EA 65. Section 21, Limitation Act and section 5, Civil Procedure and Limitation (Miscellaneous Provisions) Act Eridad, Otabong Waimo vs Attorney General SCCA No. 6 of 1990 David Oruk & Others vs Attorney General HCCS No. 2 of 1996 K. Patel v/s Uganda Revenue Authority HCC-00-CC-CS-0014-2003 National Pharmacy Ltd v/s K.C.C [1979] HCB 246, and Sour Fap Farmous,RZ "Pro Met" Belgrade Fransuska 61-65, & Anor v/s Attoney General [1997 -2001] UCL 396 (HCT-00-CC-CS-0790-2003) [2006] UGCommC 62 [accessed via http://www.ulii.org/ug/judgment/commercial-court/2006/62] J.K. Patel v Uganda Revenue Authority - HCT-00-CC-CS-0014-2003 (Yorokamu Bamwine, J) Halsbury’s Laws of England, 3rd Edn; para 594 at p.300 Waimiha Saw Milling Co. Ltd v. Waione Timber Co. Ltd. [1926] A.C 101, Lord Buck master, at page 106 B EA Timber Co Vs Inder Sigh Gill (1979) EA 463, Forbes, VP at page 469 and Order 6 rule 3 of the Civil Procedure Rules Makula International Ltd vs His Eminence Cardinal Nsubuga and Anor [1982]HCB 11, Court of Appeal of Uganda Suleman Vs Azzan (1958) EA 553 Philips Highs Vs Harper (1954) QB 411 Pearson J at page 119 Andrew McGee’s Limitation Periods 2nd Ed pages 337 – 338 Hermezdas Mulindwa and Another v Stanbic Bank (u) Ltd (HCT-00-CC-CS-0426-2004) Lameck N. Mukasa, J Harlsbury’s Laws of England 3rd Ed Vol. 24 para 631 page 318 Quoting Collins, M. R in Re Coles and Ravenshear [1907] 1 KB 1 at page 4

4 comments:

  1. Thank you for your effort.

    You might want to take into consideration Article 50 of the constitution of the Republic of Uganda which sets a parallel High Court Jurisdiction based on the provision of Paragraph (4) thereto. In effect, the article 50 (4) does not envisage the application of the limitation act and the Civil Procedure and Limitation (Misc. Provision) Act cap. 72 and neither does it recognize the limitation periods in the Limitation Act Cap. 80.

    See: Dr. James Rwanyarare & 2 others vs. AG MA 85/1993.

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  2. Well done. but organise your work better. (Be systematic, space work, etc)

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  3. Great research and erudition.Thank you.

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  4. Are there exceptions to the disability of a minor?

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