IN THE HIGH COURT OF UGANDA SITTING AT GULU

Reportable
Civil Suit No. 031 of 2011
In the matter between

GUNYA COMPANY LIMITED PLAINTIFF

VERSUS
ATTORNEY GENERAL DEFENDANT

Heard: 11 April 2019.

Delivered: 9 May 2019.

Civil Procedure — Limitation of actions — Disability as legal incapacity — Disability as

inability — suit for failure of government in its constitutional duty and undertaking to
provide security by way of armed escorts during the plaintiff's execution of road
construction — Action statute barred.
______________________________________________________________________

RULING
______________________________________________________________________
STEPHEN MUBIRU, J.
Introduction:
[1] The plaintiff sued the defendant for a declaration that the company is entitled to
compensation for the loss of two motor vehicles; a tipper truck and pick-up truck,
compensation for loss of daily income, general and special damages, interest
and costs. The plaintiff's claim is that the defendant failed in its constitutional duty
and undertaking to provide security by way of armed escorts during the plaintiff's
execution of road construction works during the year 2004 on the Pader-Kalongo
via Acuru Road. As a result, the plaintiff's employees were ambushed by the
Lord's Resistance Army rebels who burnt the two trucks to ashes, killed two of
the employees and mutilated there of the other employees, including amputating

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 their arms. The Government of Uganda made promises for compensation which
it failed to honour, hence the suit.

[2] In the written statement of defence, the defendant refuted the plaintiff's entire
claim contending that Government cannot be held liable for the acts of the Lord's
Resistance Army rebels. The suit itself is time barred and the disability pleaded is
untenable. In the alternative, by accepting to undertake construction works in an
area infested by rebels, the plaintiff undertook a voluntary assumption of risk and
is responsible for its folly. He prays that the suit be dismissed with costs.

The preliminary objection:

[3] When the suit came up for hearing, counsel for the defendant raised a
preliminary objection to the effect that the suit is time barred since the cause of
action arose in the year 2004 yet the suit was filed on 25 th August, 2011 outside
the two year limitation period. The heads of disability pleaded are not available to
the plaintiff. He prayed that the suit be dismissed.

[4] In response, counsel for the plaintiff argued that section 5 of The Civil Procedure
and Limitation (Miscellaneous Provisions) Act provides for a one year extension
in the event of disability. The plaintiff was prevented by the war between the
government forces and the Lord's Resistance Army. By reason of the resultant
instability, the plaintiff could not access the courts of law and legal
representation. Movement within the region was too risky and this prevented the
plaintiff from filing the suit within the period of limitation. The plaintiff pleaded this
disability in paragraph 4 of the plaint. Secondly, the defendant has on diverse
occasions promised to pay compensation, thus constituting acknowledgement
that renewed the cause of action. The government of Uganda has a
constitutional duty to protect its citizens from internal and external attacks. The
suit involves contentious issues by which have to be determined on merit such as
when the insurgency ended. He prayed that the objection be overruled.

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The general principles regarding preliminary objections:

[5] Under Order 6 rules 28 and 29 of The Civil Procedure Rules, a point of law may
be set down for hearing and disposed of at any time before the hearing. If it
substantially disposes of the whole suit, or of any distinct cause of action, ground
of defence, setoff, counterclaim, or reply therein, the court may thereupon
dismiss the suit or make such other order in the suit as may be just.

[6] A preliminary objection should consist of a point of law which has been pleaded,
or which arises by clear implication out of the pleadings, and which if argued as a
preliminary point may dispose of the suit (Mukisa Biscuit Manufacturing Co. Ltd
v. West End Distributors Ltd [1969] EA 696). The aim of a preliminary objection is
to save the time of the Court and of the parties by not going into the merits of a
suit because there is a point of law that will dispose of the matter summarily. A
preliminary objection must raise a point of law based on ascertained facts and
not evidence. It should be a matter that is capable of determination based only
on examination of the pleadings without reference to any evidence.

[7] Even when such a matter is raised, the Court may defer its ruling on the
objection until after the hearing of the suit or petition. Such a deferment may be
made where it is necessary to hear some or the entire evidence to enable the
Court to decide whether a cause of action is disclosed or not. I think that it is a
matter of discretion of the Court as regards when to make a ruling on the
objection (The Attorney General v. Major General David Tinyefunza, S. C.
Constitutional Appeal No.1 of 1997).

[8] It is trite that preliminary objections draw a distinction between the merits of the
suit and the subject matter of the objection. An objection should bear the
character of matter that can be dealt with immediately without touching the
merits, or involving parties in argument of the merits of the case. It should relate
to a matter which can be disposed of by the Court at an early stage without

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 examination of the merits. It should therefore be based on pure points of law or
on ascertained, undisputed facts and any reasonable inferences that may be
drawn from those facts. Objections should be sustained only in cases which the
facts on which they are based are clear and free from doubt. Where an objection
is inextricably linked to facts that are disputed or have to be proved during the
trial, then it goes to the merits of the suit and it should be joined to the merits.

[9] When considering a preliminary objection, the court will not accept as true
conclusions of law, unwarranted inferences from the facts, argumentative
allegations, or expressions of opinion.. The court will not decide as part of a
preliminary objection, facts that require analysis beyond the pleadings. The court
should not reach a determination based upon its view of the controverted facts,
but must resolve the dispute by receiving evidence thereon.

[10] Under section 3 (1) (a) of The Civil Procedure and Limitation (Miscellaneous
Provisions) Act, no action founded on tort may be brought against the
Government after the expiration of two years from the date on which the cause of
action arose. However section 5 thereof provides that if on the date when any
right of action accrued the person to whom it accrued 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, notwithstanding that
the period of limitation has expired.

[11] Order 7 rule 11 (a) and (d) of The Civil Procedure Rules, requires rejection of a
plaint where the suit appears from the statement in the plaint to be barred by any
law. On the other hand, Order 7 rule 6 of The Civil Procedure Rules requires that
where a suit is instituted after the expiration of the period prescribed by the law of
limitation, the plaint should show the grounds upon which the exemption from
that law is claimed. This requirement was considered by the Court of Appeal in
Uganda Railways Corporation v. Ekwaru D.O and 5104 others, C.A. Civil Appeal
No.185 of 2007 [2008] HCB 61, where it was held that if a suit is brought after the

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 expiration of the period of limitation, and no grounds of exemption are shown in
the plaint, the plaint must be rejected (see also Murome Sayikwo v. Kuko Yovan
and another [1985] HCB 68).

Disability as legal incapacity;

[12] A person may temporarily or permanently be impaired by mental and / or

physical deficiency or illness, or by the use of drugs or by reason of age to the
extent that he or she lacks sufficient understanding to make rational decisions or
engage in responsible actions. This perspective of disability focuses on legal or
physical conditions of a nature inherent in an individual, that constitute obstacles
to bringing a suit. It primarily connotes the lack of legal capacity to perform an act
due to mental or physical impairment (functional limitations), i.e. inability to file a
suit, based on some mental or physical impairment recognised by a legal rule or
policy, which inability must be existent at the time the cause of action arose (for
example section 1 (3) of The Limitation Act provides that a person is under a
disability if an infant or of unsound min). From this perspective, a plaintiff is under
disability for the purposes of tolling The Civil Procedure and Limitation
(Miscellaneous Provisions) Act if he or she is a minor under the age of eighteen
years, declared mentally incompetent or under other legal disability rendering
him or her incapable of the management of his or her affairs due to the
impairment of his or her physical condition, or because of disease or other
impairment of his or her physical or mental condition.

Disability as inability;

[13] Whereas “disability” primarily means want of capacity of the legal qualification to
act, sometimes inability may constitute disability. “Inability” means want of
physical power or facility to act. Inability assumes that the plaintiff is fully capable
to sue in that there is no personal incapacity to sue but some extraneous
circumstances render him or her unable to file the suit. Although there is no

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 express provision in law to extend the time for a person who is unable to file a
suit apart from his or her disability arising from want of capacity of the legal
qualification to act, the expression has been liberally construed to include inability
due to extraneous circumstances which make commencing a suit more difficult,
even if it does not make commencing a suit impossible, such as such as
imprisonment on a criminal charge, or in execution under order of court (see Siya
John v. The Attorney General [1972] HCB 86; Mungecha Fred M. v. Attorney
General [1981] HCB 34 and Sempa James v. Attorney General [1981] HCB 32),
and absence from jurisdiction.

[14] From this perspective, the thinking is that disability need not be inherent in an
individual but may also be a relational concept existing without functional
limitation but rather as a result of disabling conditions. The disability that a
person experiences may depend on both the existence of a potentially disabling
condition (or limitation) and the environment in which the person lives. The
environment can be either enabling or disabling for a person to take a particular
step and the court may examine how accommodating or not accommodating to
the particular step the external factors were at the material time. Whereas a
person is required to perform an act, the environment may create an
overwhelming barrier that limits action

[15] A condition that is limiting must be beyond the control of the plaintiff and defined
as problematic by the standard of a reasonable person for it to become a
disability. Whether external environmental factors are seen as disabling will
depend on the actions and capacities necessary to satisfy the required conduct.
If certain actions are not necessary for a step to be taken, then the person who is
limited in ability to perform those actions does not have a disability. For a person
to rely on such external factors as having created a barrier to the required action,
the court ought to be satisfied that there were no alternative, reasonable,
enabling avenues that could serve to compensate for the condition, or ameliorate

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 the limitation. The plaintiff has proffered the conditions of insurgency as a
disabling condition that existed at the time.

First issue; Whether or not insurgency constitutes a disability;

[16] There exists a phrase in Latin, lex non cogit ad impossibilia (See Black’s Law
Dictionary, 1844 app. (9th ed. 2009), which means that the law does not compel
the doing of impossibilities. It is a fact that access to courts may be inhibited on
account of war. War can be expected to interfere with a plaintiff’s ability to inter
alia serve process upon a defendant, to investigate and locate witnesses, and so
on. The existence of a state of sustained armed conflict may therefore constitute
a disability. It is an established principle of international and municipal law that a
statute of limitation is tolled during the period when the existence of a state of
war prevents access to the courts, whether or not the particular statute of
limitation expressly provides for such suspension thereof. The period during
which the plaintiff was denied access to the courts by reason of the war cannot
be included in the computation of the limitation period.

[17] However, there are instances, such as this, where the nature of the case in
controversy requires a judicial determination of whether war existed, and the time
of its commencement and cessation. By virtue of article 124 of The Constitution
of the Republic of Uganda, 1995, recognition of belligerency as a war or terrorist
activity is an executive function or responsibility. While the recognition of
belligerency is an executive function, courts are authorised to interpret specific
issues dealing with war when proclamations from the executive do not provide an
answer. This is one of such instances when judicial pronouncements tangential
to armed conflict are simply unavoidable. The court must necessarily engage in a
two-step approach, determining in the first instance whether there was a war,
and in the second instance, the measurable number of calendar days to credit
between the commencement and cessation of the conflict, despite the lack of any
formal declaration of war by the executive. In many public pronouncements,

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 Joseph Kony and The Lord's Resistance army have been categorised as
terrorists (see for example "For the global security and human rights fraternity,
Kony is a terrorist" in Is Kony a terrorist, myth or just a misunderstood man? Daily
Nation Newspaper of Friday November 5 2010).

[18] In many ways war and terrorism are very similar. Both involve acts of extreme
violence, both are motivated by political, ideological or strategic ends, and both
are inflicted by one group of individuals against another. The consequences of
each are terrible for members of the population, whether intended or not. War
tends to be more widespread and the destruction is likely to be more devastating
because a war is often waged by states with armies and huge arsenals of
weapons at their disposal. Terrorist groups rarely have the professional or
financial resources possessed by states. The differences are not always clear-cut
and even experts may disagree about whether a violent campaign counts as
terrorism, civil war, insurgency, self-defence, legitimate self-determination, or
something else.

[19] For the purpose of the law of limitation, disability applies not only to wars formally
declared by the executive, but also to sustained armed conflicts where the use of
armed forces is specifically authorised by the state. For that reason, this court is
prepared to recognise the armed conflict with the Lord's Resistance Army as a
“war” in a classic legal sense, even if it was not officially declared so by the
executive.

[20] Once so recognised, the time of the continuance of the war is not reckoned as a
part of the period limited for the commencement of suits. War and related
hostilities are bound to break down, undermine and sideline the legal system.
However, even in the midst of such a breakdown, some aspects of the law will
continue to operate, albeit in a weakened state. At this stage, the court is
prepared to give the plaintiff the benefit of the doubt as to the impact of that
conflict that notoriously pervaded much of Northern Uganda, irrespective of its

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 sporadic nature in some geographical locations therein, as having substantially
impaired the plaintiff's ability to file the suit within the time limited by law.

[21] However, according to section 56 (1) (j) of The Evidence Act, a court may take
judicial notice of the commencement, continuance and termination of hostilities
between the Government and any other State or body of persons. In such cases,
the court may resort for its aid to appropriate books or documents of reference.
By virtue of that provision, this court takes judicial notice of the fact that from the
middle of the year 2004 onwards, rebel activity dropped markedly in the entire
Northern Region of Uganda, and in mid-September, 2005, a band of the active
remnants of Lord's Resistance Army fighters, led by Vincent Otti, crossed into the
Democratic Republic of Congo. Thereafter, a series of meetings were held in
Juba starting in July, 2006 between the government of Uganda and the LRA (see
Wikipedia, "Lord's Resistance Army insurgency" at
https://en.wikipedia.org/wiki/Lord%27s_Resistance_Army_insurgency, visited
25th April, 2019). The implication is that in 2006, northern Uganda was nearing
the end of the brutal Lord’s Resistance Army insurgency (see IRIN, "How the
LRA still haunts northern Uganda," at
http://www.irinnews.org/analysis/2016/02/17/how-lra-still-haunts-northern-
Uganda, visited 25th April, 2019).

[22] Although for purposes of limitation the time between the commencement of the
war and the termination of hostilities is excluded, the Lord's Resistance Army
insurgency in Northern Uganda having ended during or around the year 2006, a
suit filed five years later in 2011 is clearly time barred. The plaintiff ought to have
pleaded circumstances external to it as the person to whom the cause of action
accrued, over which it had no control which prevented it from taking the
necessary step by occasioning physical or mental incapacitation. It is not pleaded
in the instant case that there was any physical or mental incapacitation
occasioned by the war, nor any overwhelming external conditions thereafter that
created a barrier as a result of that war. A person who advances fear as the

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 reason for failure to file a suit is not prevented by anything external but only his or
her own trepidation. Apprehension is not a physical incapacitation. In any event,
it is not pleaded that the insurgency significantly impacted on the operations of
the High Court in Gulu, or that advocates and litigants could not access the court
for any significant period of time even during that insurgency. For those reasons
this ground is not available to the plaintiff.

Second issue; Whether or not protracted negotiations constitute a disability.

[23] It is contended by counsel for the plaintiff that by reason of pleas made by the
plaintiff to the defendant, repeated promises were made over the years for
compensation which the defendant has failed to honour. In essence the plaintiff
alludes to attempts to negotiate and promises made out of court, as the reason
for the belated filing of the suit.

[24] The choice to go into negotiations is based more on self-efficacy beliefs rather
than conditions of mental or physical impairment. Self-efficacy beliefs are
concerned with whether or not a person believes that he or she can accomplish a
desired outcome. Beliefs about one's abilities affect what a person chooses to
do, how much effort to put into a task, and how long an individual will endure
when there are difficulties. The choice to negotiate over the decision to sue is a
behavioural choice rather than a functional limitation. It therefore is neither a
legal incapacity inherent in an individual nor an extraneous circumstance beyond
the control of the plaintiff that renders the plaintiff unable to file the suit. It is
therefore no surprise that courts have taken the view that protracted negotiation
of a settlement out of court does not constitute a disability to justify exemption
from limitation (see Allen Nsibirwa v. National Water and Sewerage Cooperation
H.C. Civil Suit No. 220 of 1995; Peter Mangeni t/a Makerere Institute of
Commerce v. Departed Asians Property Custodian Board, S.C. Civil Appeal No.
13 of 1995 and Nyeko Smith and another v. Attorney General S.C. Civil Appeal
No. 01 of 2016).

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Third issue; Whether promises to compensate constitute acknowledgement that
renewed the cause of action.

[25] In the first place, this was not pleaded as one of the grounds tolling The
Limitation Act in this case. On the other hand, according to section 23 (1) of The
Limitation Act such acknowledgment is required to be in writing and signed by
the person making the acknowledgment. There is no such attachment to the
plaintiff's pleadings nor is there a reference to a signed document in the plaintiff's
list of documents.

[26] Furthermore, according to section 23 of The Limitation Act, acknowledgments

and part payments renew causes of action founded only on; (i) recovery of land;
(ii) right of a mortgagee of personal property to bring a foreclosure action in
respect of the property; (iii) recovery of debts or other liquidated pecuniary
claims; (iv) claims to the personal estate of a deceased person or to any share or
interest in it. The plaintiff's action is not in any of those categories. Lastly, in order
to satisfy the stipulations of section 23 of The Limitation Act, the following
essentials must be present:- (i) there must be a promise to pay a debt; (ii) there
must be a debt of which the creditor might have enforced payment but for the law
for the limitation of the suits; (iii) the promise must be made in writing; and (iv) the
writing must be signed by the person to be charged therewith or by his or her
agent generally or specifically authorised on his or her behalf. None of this is
pleased by the plaintiff. Accordingly, this ground too is not available to the
plaintiff.

Fourth issue; Whether the merits of the suit is a justification for tolling The
Limitation Act.

[27] It is trite that the law of torts does not normally impose on government a duty to
protect, consequently it is a principle of common law that the Constitution retrains
government from depriving persons of their rights, and from taking lives or liberty

11
 except in a manner consistent with the law. When it comes to the a government
duty to protect persons from bad private actors, Courts have been reluctant to
find such a duty, even when reasonable government actors could easily have
saved lives or prevented serious bodily harm (see Michael L. Wells and Thomas
A. Eaton, Affirmative Duty and Constitutional Tort, University of Michigan Journal
of Law Reform, Vol. 16, No. 1 (Fall 1982), pp. 1-44). The state has no affirmative
constitutional duty to protect individuals since the bill of rights, phrased as a
series of prohibitions, not an affirmative commands, is a charter of negative
rather than positive liberties (see Bowers v. DeVito, 686 F.2d 616 (7th Cir. 1982).
The Constitution is meant to protect citizens from oppression by state
government, not to secure them basic governmental services.

[28] However, there are exceptions to that general rule, to wit; (i) persons in
government's physical custody; and (ii) if the government is responsible for
creating the danger. If the state puts a person in a position of danger and then
fails to protect him or her, it is as much an active tortfeasor as if it had thrown him
into a snake pit (see Bowers v. Devito, 686 F.2d 616, 618 (7th Cir. 1982) and
Spence v. Staras, 507 F.2d 554, 557 (7th Cir. 1974). Therefore, based on the
pleadings before court, the plaintiff would possibly be in position to put up a
plausible case, but for limitation.

[29] From the defendant's perspective, it is arguable that government does not place
the plaintiff in a place or position of danger, but simply fails adequately to protect
him or her as a member of the public from harm, that failure is not actionable at
common law. Secondly the defendant suggests that if a person voluntarily
assumes a position of danger, then liability may not arise. Volenti non fit injuria
(no injury can be done to a willing person i.e. voluntary assumption of risk) is a
common law doctrine which states that if someone willingly places themselves in
a position where harm might result, knowing that some degree of harm might
result, they are not able to bring a claim against the other party in tort. Where the
defence applies it operates as a complete defence absolving the defendant of all

12
 liability. Knowledge of the risk of injury is not enough. Nothing will suffice short of
an agreement to waive any claim for negligence. The plaintiff must agree
expressly or impliedly to waive any claim for any injury that may befall him due to
the lack of reasonable care by the defendant: or more accurately due to the
failure by the defendant to measure up to the duty of care which the law requires
of him (see Nettleship v. Weston [1971] 3 WLR 370; White v. Blackmore [1972] 3
WLR 296; Morris v. Murray [1991] 2 QB 6 and Smith v. Charles Baker & Sons
[1891] AC 325). Therefore, based on the pleadings before court, the defendant
would possibly be in position to put up a plausible defence, but for limitation.

[30] Despite the presence of such triable issues apparent on the face of the pleadings
of both parties, the whole idea of The Limitation Act is to prevent stale claims.
Statutes of limitation are in their nature strict and inflexible enactments. Their
overriding purpose is interest reipublicae ut sit finis litium, meaning that litigation
is automatically stifled after a fixed length of time, irrespective of the merits of a
particular case (see Re-Application of Mustapha Ramathan, (1996) KALR 86 and
Hilton v. Sutton Steam Laundry [1946] 1 KB 61 at 81).

[31] Statutory provisions imposing periods of limitation within which actions must be
instituted seek to serve several aims. In the first place, they protect defendants
from being vexed by stale claims relating to long-past incidents about which their
records may no longer be in existence and as to which their witnesses, even if
they are still available, may well have no accurate recollection. Evidence may
largely depend on the recollection of witnesses, which deteriorates over time. t
may depend on the preservation of written records which may be lost or
destroyed. Secondly, the law of limitation is designed to encourage plaintiffs to
institute proceedings as soon as it is reasonably possible for them to do so.

[32] Thirdly, the law is intended to ensure that a person may with confidence feel that
after a given time he or she may regard as finally closed an incident which might
have led to a claim against him or her (see Birkett v. James [1977] 2 All ER 801).

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 The legislature must be taken to have sought, and achieved, proper balance
between all these competing interests in enacting that, if actions are to be heard
at all, they must be instituted within the various specified periods from the accrual
of the cause of action.

[33] Public interest has always been concerned that litigation should be brought within
a reasonable time. This enables cases to be dealt with properly and justly.
Moreover the public interest requires the principle of legal certainty, defendants
may have changed their position or conducted their businesses in the belief that
a claim would not be made. It is for these and other reasons that limitation
statutes have been described as “acts of peace” or “statutes of repose”. People
should be free to get on with their lives or businesses without the threat of stale
claims being made. The Limitation Act also encourages claimants to bring their
claims promptly and not, in the old phrase, “to sleep on their rights.” The object of
any limitation enactment is to prevent a plaintiff from prosecuting stale claims on
the one hand, and on the other hand protect a defendant after he or she had lost
evidence for his or her defence from being disturbed after along lapse of time. It
is not to extinguish claims (see Dhanesvar V. Mehta v. Manilal M Shah [1965] EA
321; Rawal v. Rawal [1990] KLR 275, and Iga v. Makerere University [1972] EA
65). Once limitation begins to run, it will not be suspended by the subsequent
disability of any of the parties unless specified by statute.

[34] I have carefully perused the plaint and find that the cause of action is stated to
have arisen on an unspecified date during the year 2004 yet the suit was filed on
25th August, 2011 five years out of time. In the circumstances I find that the suit is
barred by limitation.

Order :

[35] Consequently the preliminary objection is sustained. The plaint is struck out with
costs to the defendant.

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 _____________________________
Stephen Mubiru
Resident Judge, Gulu
Appearances
For the plaintiffs :.
For the defendant :.

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