THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLENOUS APPLICATION NO 305 OF 2003
(Arising from H.C.C.S No. 116 of 2003)
NATIONAL COUNCIL OF SPORTS …………………… APPLICANT/DEFENDANT
PETER GRACE SSERUWAGI ………………………….. RESPONDENT/PLAINTIFF
BEFORE HIS LORDSHIP JUSTICE J.B.A. KATUTSI:
This is an application by chamber summons brought under the provisions of O7. rr 11 and 19 of the Civil Procedure Rules seeking orders that:-
a) The Respondent/Plaintiff’s suit be dismissed for failure to disclose a cause of action.
b) The Respondent/Plaintiff’s suit is time barred.
c) Costs of this application be provided for.
The application is supported by an affidavit sworn by A.K.P.M. LUTAYA said to be the General Secretary of the National Council of Sports the applicant.
In the said affidavit Lutaya depones inter alia that:-
“3. That on the 21st day of December 1967 the Respondent/Plaintiff was appointed as a full time coach with the National Council of Sports.
4. That Peter Grace Sseruwagi reported to the National Council of Sports an injury on his back while in USA on the 5th day of July 1984 during the Olympic games.
5. That the Respondent/Plaintiff is claiming for compensation for the injuries sustained as a result of that accident.
6. That since the accident arose on the 5th day of July 1984, it is now 19 years since then.
7. That by reason of the number of years that have passed, I am advised by the Corporation Lawyer Mr. Justin Semuyaba that the Respondent/Plaintiff’s suit is time barred.”
There is an affidavit in reply sworn by the respondent of which the relevant paragraphs run as follows:-
“2. That I have read the affidavit supporting the chamber summons dated 20th May 2003 sworn by one Lutaya and I hereby reply as hereunder:-
3. That in response to paragraph 6 and 7 Lutaya’s affidavit, I state that injury is a continuous one and therefore not time barred.
4. That I was constantly treated from 1984 up to December 2002 as per Annexture “A” a report of my Doctor.
5. That I still suffer from the effects of the injury to date further indicated by the same Docotor in Annexture “B” dated 5th May 2004.
6. By virtue of the above facts my claim is not time barred.”
In court Mr. Semuyaba learned counsel for the Applicants and Dr. Barya learned counsel for the Respondent enlarged on the contents of the affidavits sworn on behalf of their clients.
It is remarkable that there is no express authority on the point under discussion, and the fact that the respondent is now raising it for the first time is clear proof of the ingenuity of his lawyer.
I propose therefore to examine a few cases touching on subsidence of premises where the question of continuity has been urged and cases involving personal injuries that were unknown at the time they occurred and of which plaintiffs were not conscious when they did occur. By drawing an alogy from these cases I hope to arrive at the justice of this case.
But first we may ask why the law of Limitation of actions?
The learned authors of Salmond & Heuston on the Law of Tort 21st edition at page 558 state:
About one hundred and seventy years ago Best C.J. Said:
“It is, as I have often heard it called by great Judges, an Act of peace. Long dormant claims have often more cruelty than Justice in them.”
Here at home our Legislature recognizing this cruelty enacted the Limitation Act 1969. Section 3 there of provides as follows:-
“3. (1) the following actions shall not be brought after the expiration of six years from the date on which the cause of action arose-
(a) actions founded on contract of tort;
Respondent appears to me to be saying that he has independent and distinct causes of action, in each a fresh distinct cause of damage, all arising from the same act that is the accident in which he was injured in 1984.
To that I would with respect echo the words of Fry L.J., In Lamb V. Walker 3 CP. B.D.394. He said:
I will return to this inquiry later in this ruling. For his part MINISTY J. said:
In Nicklin V. Williaams 10 Ex.259 the court said:
In Darley Main Colliery Co. Ld. V. Thomas Wilfred Bowe Mitchell 11 App. Case 127, the lessees of coal under the respondents land worked the coal so as to cause a subsidence of the land and injury to houses there on in 1868. For the injury to houses the lessees made compensation. They worked no more, but in 1882, a further subsidence took place causing further injury. There would have been no further subsidence if an adjoining owner had not worked his coal or if the lessees had left enough support under respondent’s land.
In the course of his speech in the House of Lords, Lord Halsbury said:
Note that Lord Halsbury is talking of fresh damage as it happens. Fresh damages must give rise to a new cause of action.
In the present case I would venture to say that the cause of action is made of the injuries Respondent sustained as a result of the 1984 accident. If he still suffers pain as he alleges he does, that pain is a manifestation of the 1984 accident. Indeed that is what he appears to be saying in paragraph 5 of his affidavit in reply:
“I still suffer the effects of the injury to date.”
That is a manifestation and not fresh injuries.
In the case of Cartledge And Others V. E. Jobling & Sons Ltd (1963) Ac 756, workmen, while employed as steel dressers in a factory, contracted pneumoconiosis, a disease in which slowly accruing and progressive damage may be done to a man’s lungs with out his knowledge. According to the evidence a man susceptible to pneumoconiosis who inhaled noxious dust over a period of years would have suffered substantial injury before it would be discovered by any means known to medical science. By writs issued on October 1, 1956 the workmen claimed from their employers damages for negligence and or alternatively breaches of statutory duty causing disease.
The trial Judge found breaches of statutory duty owed proved, but regretfully felt bound, to hold that all claims were barred by the Limitation Act. The court of appeal with like regret affirmed his decision. The House of Lords with like regret dismissed the workmen’s appeal. In the course of his speech in the House of Lords Lord Pearce said:
The House of Lords rejected an argument that the time ran only from the date of the discoverability in cases if personal injury, held instead the commencement date for the period of Limitation was the earliest date at which the plaintiff had suffered more than minimal damage as a result of the defendant’s breach of duty.
The injustice disclosed in the case of Cartledge (Supra) namely that a plaintiff in a personal injuries action might find his cause of action barred by Limitation even before its existence became reasonably discoverable, led to the formation of the committee on Limitation of actions in cases of personal injury and subsequent report which was the back ground to the 1993 Act. Another Act was passed in 1980 and section 33 of the 1980 Act, gives court a discretion to allow plaintiff to bring an action for personal injuries, not withstanding that the time Limited by section 11 and 12 of the Act has expired, if it appears to the court that it would be equitable to do having regard to the degree to which section 11 and 12 of the Act prejudice the plaintiff, or any person whom he presents and the degree to which any decision under this section would prejudice the defendant, or any person whom he presents.
In our country there appears to be Legislative somnolence in this area of the law. Section 3 of the Limitation Act remains on the Statute book without any modification. I have to administer the law as I find and understand it. I would end by re-echoing the words of LORD REID in Cartledge V.E. Jobling (1963) AC 758.
With respect I think that is our law at present. I hasten to add that in this case there is no further injury arising from the 1984 accident claimed. Like the trial Judge in the CARTLEDGE case (Supra) I regretfully hold that this action is barred by Limitation. Accordingly under 0.7 r 11 the plaint is rejected with costs.
Dr. Barya for respondent.