Wakilii

Departed Asians Property Custodian Board v Masambu (CIVIL APPEAL NO. 04 OF 2004)

Court of Appeal · [2009] UGCA 65 · 2009 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Civil appeal from a High Court ruling dismissing the appellant's preliminary objection that the suit was time barred
Decision
Appeal allowed; preliminary objection upheld and the suit found to be time barred

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Cited — treatment unverified cited in 5 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Court of Appeal allowed the appeal, holding that the suit filed in 2002 in respect of causes of action arising in or before 1993 was time barred. Following the amendment of the Limitation Act, the only recognised categories of disability are infancy and unsoundness of mind; being failed by one's own advocates does not constitute a disability that suspends limitation. The court further held that article 126(2)(e) of the Constitution, on administering substantive justice without undue regard to technicalities, does not override mandatory statutory limitation periods, which courts have no power to extend. The trial judge erred in relying on Sowali Kadimu, which had been overruled by Parliament.

Facts

On 8 July 2002 the respondent filed HCCS No. 52 of 2002 against the appellant, a scheduled corporation, alleging assault, defamation, negligence, fraud and breach of contract, all committed on or before 19 April 1993. The appellant raised a preliminary objection that the suit was statute barred under section 3 of the Civil Procedure and Limitation (Miscellaneous Provisions) Act, which prescribed two years for tort claims and six years for contract claims against the corporation. The respondent had instructed Mr. Wegoye and later Mr. Emesu, who filed an earlier incompetent suit four days before the limitation date in 1999; that suit was withdrawn and the present suit filed in 2002. The respondent pleaded that his advocates' conduct amounted to a disability under section 5 of the Act. The trial judge accepted this argument, relied on Sowali Kadimu and article 126(2)(e) of the Constitution, and rejected the objection. The appellant appealed.

Issues

  1. Whether the respondent's suit was time barred under the Civil Procedure and Limitation (Miscellaneous Provisions) Act and the Limitation Act.
  2. Whether the conduct of the respondent's advocates in failing to file the suit in time amounted to a disability within the meaning of the limitation law.
  3. Whether article 126(2)(e) of the Constitution permitted the court to treat the limitation bar as a mere technicality.

Orders

  • Appeal allowed.
  • Costs of the appeal and in the High Court awarded to the appellant.

Key headnotes

Limitation of Actions — Disability — Statutory Definition After Amendment
Following the amendment of the Limitation Act, disability for the purpose of suspending a limitation period is confined to infancy and unsoundness of mind; no other incapacity qualifies.
Limitation of Actions — Negligence of Advocate Not a Disability
The failure or negligence of a litigant's own advocate to file a suit within the limitation period does not constitute a disability and does not suspend or extend the running of time.
Article 126(2)(e) — Substantive Justice Versus Mandatory Statutory Limitation
Article 126(2)(e) of the Constitution, requiring substantive justice without undue regard to technicalities, does not empower courts to disregard mandatory statutory limitation periods, which courts have no power to extend.
Effect of Statutory Amendment on Prior Judicial Authority
Where Parliament amends a statute to define a term and confine its scope, earlier judicial decisions that had widened the meaning of that term cease to be good law and should not be relied upon.

Legislation cited (11)

  • Civil Procedure and Limitation (Miscellaneous Provisions) Act s.3
  • Civil Procedure and Limitation (Miscellaneous Provisions) Act s.3(1)(c)
  • Civil Procedure and Limitation (Miscellaneous Provisions) Act s.5
  • Limitation Act Cap.80 s.3
  • Limitation Act s.8(2)(a)
  • Civil Procedure Rules Order 7 rule 11
  • Civil Procedure Rules Order 7 rule 6
  • Civil Procedure Rules Order 7 rule 13
  • Constitution of Uganda 1995 art.126(2)(e)
  • Constitution of Uganda 1967 art.13(1)
  • Constitution of Uganda 1967 art.13(2)(g)

Cases cited (4)

  • Sowali Kadimu vs Attornev General [1971] HCB 156
  • Zirondamu (1980) HCB 11
  • Fred Munsecha vs Attorney General [1981] HCB 34
  • Makula International 7 Anor. Vs Cardinal Nsubusa & Anor. (1982) HCB 11
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.