THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
[COMMERCIAL COURT DIVISION]
CIVIL SUIT NO. 597 OF 2006
YOVANI TIBAKWANIKA=============PLAINTIFF
VERSUS
HAJATI YUDAYA
NALONGO NAMAGEMBE============DEFENDANT
BEFORE: HON. JUSTICE LAMECK N. MUKASA
RULING
The Plaintiff, Yovani Tibakwanika, filed Civil Suit No. 597 fo
2006 against the Defendant, Hajati Yudaya Nalongo
Namagembe. Briefly the Plaintiffs claim in the above Suit is
that he instituted Civil Suit No. 513 of 1990 in the Mengo
Chief Magistrate’s Court and obtained Judgment against the
Defendant therein, one Juma Kabongo. Following that
Judgment the said Juma Kabongo ran out of Uganda and on
the 6th August 1992, the Defendant herein executed an
agreement with M/S Rajsid Results Court Brokers and
Bailiffs, the Court Bailiffs appointed to execute the decree in
Civil suit Non GK 513 of 1990 whereby the Defendant
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agreed to pay the sum of Shs. 1,902,840/= to the said
Court Bailiffs in discharge of the money the said Juma
Kabogo was liable to pay under the said case. The
Defendant did not pay within the agreed period of four
months. As a result of the Defendants and failure to pay
the Plaintiff and 3rd October 2006 filed this suit seeking to
recover:-
(i) Shs. 7,22,840/=
(ii) General damages for loss, damage and
inconvenience caused to the Plaintiff.
(iii) Exemplary damages because of the Defendant’s
unlawful, malicious and unconstitutional acts.
(iv) Interest at the rate of 30p from the date of
filing the Suit.
(v) Costs of the Suit.
The Plaintiff was represented by Mr. Fredrick Zaabwe.
At the scheduling conference Mr. Eric Mukwezi, Counsel for
the Defendant raised two preliminary objections. First that
the suit was time barred and second that the plaint did not
disclose a cause of action against the Defendant. The Order
9 rule 11 provides:
“The plaint shall be rejected in the following cases –
(a) where it does not disclose a cause of action.
----
(d) where the suit appears
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From the statement in the plaint to be barred by any
law.
----”
With regard to the limitation period Mr. Mukwezi submitted
that the Plaintiff’s claim was based on a Judgment in Civil
Suit No. GK 513 of 1990 delivered sometime in 1992. The
instant suit was filed on 3rd October 2006. Counsel
referred to Section 3 (3) of the Limitation Act. It says:-
“An action shall not be brought upon any Judgment after the expiration of twelve
year from the date on which the Judgment because enforceable, and no arrears of
interest in respect of any judgment debt shall be recovered after the expiration of
six year from the date on which the interest because due.”
Counsel submitted that this action is founded on a Judgment
which was enforceable – 1992 and was limited to twelve
years which had lapsed in August 2004.
In the alternative counsel referred to subsection (1) (a) of
the same section which provides that actions shall not be
brought after the expiration of six years from the date on
which the cause of action arose if founded on contract.
Continued as a contract the cause of action was founded on
the agreement, annesture A, to the plaint dated 6 th August
1992 whereby the Defendant agreed to pay the decretal
sum in Civil Suit No. GK 513 of 1990.
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Clearly when this suit was filed on 3 rd October 2006 the
limitation periods under both sub-sections (1) (a) and (3) of
the Limitation Act had long lapsed. The provision “shall be
rejected” in rule 11 of Order 9 of the Civil Procedure Rules is
mandatory. In Fracis Nansio Micheal –Vs- Nuwa
Walakira [1993] VI KALR 14 the Supreme Court held tht
clearly if the action is time barred then that was the end of
it.
In his submission Mr. Zaabwe relied on Section 25 of the
Limitation Act. It sates:-
“Where in the case of any action for which a period of
limitation is prescribed by this Act, either –
(a) the action is based upon the fraud of the
Defendant or his or her agent or of any
person through whom he or she claims or his
or her agent
-----
the period of limitation shall not begin to run
until the Plaintiff has discovered the fraud or
the mistake or could with reasonable
diligence have discovered it;---.”
Counsel referred to paragraphs 6 to 9 of the Plaint. For
clarity I will reproduce the paragraphs;-
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“6. The Plaintiff shall contend that Juma Kabogo ran out
of Uganda and that on the 6/8/1992, the Defendant
under look to pay shs. 1,902,840/= to Rapid Results
Court Brokers and Bailiffs and clear J. Kabogo’s
liability. A photo start copy of the document of
her undertaking is Annexture A.
7. The Plaintiff shall contend that soon after executing the
above document the Defendant moved from Kibuye Nkers
Zone RC.1 to a place unknown to the Plaintiff and the Court
Bailiffs and that consequence execution of the Judgment
became impossible.
8. The Plaintiff shall contend that he had no means of
knowing the whereabouts of Juma Kobogo or the Defendant.
9. The Plaintiff shall contend that it is only in July 2006,
that he learnt the whereabouts of the Defendant.”
Counsel argued that the Defendants conduct and acts as
pleaded in the above paragraphs were fraudulent. He
therefore sought to rely on fraud and submitted that the
limitation period according to Section25 above did not being
to run until the Plaintiff discovered the fraudulent conduct or
acts of the Defendant stated in the Plaint. In his view this
was in July 2006 when the Plaintiff discovered the
whereabouts of the Defendant. As to pleadings of fraud
counsel contended that:-
(i) Juma Kabogo was under arrest in execution of
the Judgment in Civil Suit No. GK 513 of 1990
and the Defendant obtained his release by
making a representative that she will pay the
Judgment debt. The Defendant made the
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representation with full knowledge that she was
not going to honour the agreement.
(ii) Juma Kabogo and the Defendant conspired to
defraud the Plaintiff because immediately after
the execution of the agreement and after
obtaining the release of Juma Kabogo, the
Defendant moved from her known Residence at
Kibuye Ntere Zone R.C.1 to an unkown place.
Order 6 rules 3 and 6 of the Civil Procedure Rules require
that where a party relies on fraud it must be specifically
pleaded. In this regard Mr. Zaabwe referred to B.EA Triber
Co. –VS- Inder Singh Gill [1979] EA 463 where Forbes,
VP at page 469 stated:
“---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 sent out, and
then it should be stated that there acts were done
fraudulently; but from the acts fraudulent intent may
be inferred.”
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As to the fraudulent intent of the Defendant counsel cited
Suleiman –VS- Azzan [1958] EA 553 where court held
that circumstantial evidence suffices to prove fraud; In that
case court found that the first Defendants admissions
compiled with the timing of the transfer clearly established
that the first Defendant’s object was to put the property out
of reach of his creditor, the Plaintiff; such an object is
“unlawful” for the purposes Section 23 of the Contract
Decree, both as being “fraudulent” and as being of “such a
nature that , if permitted of any law”. Counsel submitted
that the Defendants conduct was intended to deny the
Plaintiff the proceeds of the decree in Civil Suit No. GK 513
of 1990 and to defeat Justice, thus fraudulent.
Assuming the pleadings in paragraphs 6 to 9 of the plaint
amounted to a plea of fraud the agreement on which the
Plaintiff bases his claim was executed on 6 th August 1992.
It is the Plaintiff contention, in paragraph 7 of the plaint,
that “soon after execution of the above document the
Defendant moved from Kibuye Nkere Zone R.C. 1 to a place
unknown to the Plaintiff and the Court Bailiffs and that
consequence execution of the Judgment because
impossible.” It is not the discovery in July 2006 of the
where about of the Defendant. It is the disappearance from
the known place of abound which the Plaintiff states was
soon after execution of the agreement. This was in 1992.
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The Plaintiff must have discovered the alleged fraudulent
conduct of the Plaintiff sometime in 1992, which was a
period of fourteen years by October 2006 when this suit was
filed. Thus within the limitation period blachet. It is trite
that a party is brought by his/her pleadings. Order 5 rule
18 of the Civil Procedure Rules provides a solution where a
party can not be traced for service of summons in the
ordinary way, whereby it can be done by substituted service.
Failure to trace a Defendant is no justification for failure to
file a suit against him within the statutory period. I
therefore find that the Plaintiff’s Suit is time-barred.
The second ground of objection was that the plaint did not
disclose a cause of action. Mr. Mukwezi submitted that the
Plaintiff was not a party to the undertaking on which he
bared his claim. The parties to the undertaking, annexture
‘A’ to the plaint, was the Defendant, Hajati Yudaya Nalongo
Namagembe and M/S Rapid Results Court Brokers and
Bailiffs. This was an agreement executed in execution of
the Judgment in Civil Suit No. GK 513 of 1990 whereby the
said Court Bailiffs were acting as agents of Court and not of
the Plaintiff. Clearly the Plaintiff was not a party to the
undertaking. The Plaintiff had no claim against the
Defendant on the basis of that undertaking. I accordingly
find that the plaint did not disclose a cause of action against
the Defendant.
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All in all the plaint is rejected under Order 9 rule 11 of the
Civil Procedure Rules and dismissed with costs.
……………………………..
Lameck N. Mukasa
JUDGE
8/06/07
