Nakirya and Another v Attorney General (Civil Appeal 38 of 2003) [2006] UGCA 58 (8 September 2006)

THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

CORAM: HON. JUSTICE S. G. ENGWAU, JA HON. JUSTICE . A. TWINOMUJUNI, JA HON. JUSTICE S. B. K. KAVUMA, JA

$10$

CIVIL APPEAL NO. 38 OF 2003

BETWEEN

APOLLONIA NAKIRYA SSEKATABA) 1.

) :::::::::::: APPELLANTS $2.$ CONNIE SABIITI NIGHT

AND

RESPONDENT THE ATTORNEY GENERAL :::::: $20$

[Appeal from the judgment and orders of the High Court at Jinja (Bamwine, J.) dated 14^th August, 2002 in HCCS No. 95 of 20001

JUDGMENT OF ENGWAU, JA

The late Captain Francis Mbaziira was trading under the name and 30 style of Fanatex Enterprises. He had sued the Attorney General under the provisions of the Government Proceedings Act. His claim was for special and general damages for detenue and costs of the suit.

Briefly, the facts of the case were that on or about the 4^th March, 1999 at Bugoto landing beach in Iganga District, the late Captain Francis Mbaziira was unlawfully arrested by the Uganda Police before being

prosecuted vide Criminal Case No. Ml 156/99. The case was dismissed for want of prosecution under section 117 (1) of the Magistrates Court's Act.

At the time of the late Mbaziira's arrest, the police impounded his goods consisting of 100,000 Kgs of a drink called "ndume" that was valued at USD 100,000. The police never returned the said goods to the late Capt. Francis Mbazita even after the dismissal of the criminal case. As a result, the late Mbaziira suffered and continued to suffer grave financial loss and held the respondent vicarlously liable.

The respondent admitted arresting and charging the late Mbaziira, but denied liability on impounded goods contending that the police were justified in their conduct and that Mbaziira must have recovered his goods.

The learned trial judge awarded Mbaziira Shs. 4,000,000/= as general damages for unlawful arrest, imprisonment and malicious prosecution. He was also awarded Shs. 560,000/= as special damages as the amount he spent for defending himself against the ill-fated criminal charges. Further, Mbaziira was awarded interest on the above awards at the rate of 8% per annum from the date of judgment till payment in full plus costs of the suit.

Before Capt. Francis Mbaziira could prosecute his appeal to the end, it was allegedly reported to this Court that he had died in June, 2004. By consent order under rule 96 of the Rules of this Court, both parties

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allowed Apollonia Nakirya Ssekataba and Connie Sabiiti Night to be joined to this appeal in their representative capacity as the administrators of the estate of the deceased, Captain Francis Mbaziira.

The original memorandum of appeal had five grounds which were consolidated into two as follows:-

- 1. The learned trialjudge erred in law and in fact when he wrongly evaluated the plaintiffs unchallenged evidence and made wrong findings on issues 3, 4, 5 and paft of 6. - 2 The learned trialjudge misdirected himself in law and in fact when he based his judgment on wrong assumptions and applied the wrong principles of law.

At the trial in the lower court, six issues were framed for determination, namely:-

- ,,|.. Whether the plaintiff was arrested as alleged. - 2. lf so, whether the arrest and imprisonment were lavvful. 20 - Whether the plaintiff's goods were impounded and confiscated as alleged. 3 - 4. lf so, whether the seizure of the goods was lawful. - 5. Whether the plaintiff is entitled to the reliefs sought. - 5. Quantum of damages, if any.

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Ms P. Basaza Wasswa, learned counsel for the appellant and the learned Attorney General, filed written submissions under rule 97 (1) of the Rules of this Court . Though the submissions were filed belatedly, this court exercised its inherent jurisdiction to accept them under rule ¹ (3) of the Rules of this Court.

Ms Basaza Wasswa argued grounds 1 and 2 separately. The Attorney General followed the same pattern and I shall do the same.

On ground 1, Ms Basaza vehemently attacked the learned trial judge for basing his judgment on what he referred to as "aspects of the plaintiffs case, which on the face of it discredit his own claim." According to the trial judge, there were six aspects of the plaintiff's evidence. Regarding aspect no. 2, for example, counsel submitted that the trial judge had clearly disregarded the plaintiff's case. He wrongly quoted PW2's evidence thus. l0

"PW2 Nangobisaid the goods were ferried away in a privately owned pick-up. She did not note its registration number nor the owner. She did not note the identities of those who ferried them away and they left nothing behind to show who they were."

ln counsel's view, the above extract is contrary to what PW2 said in her testimony. Counsel pointed out hereunder the testimony of PW2.

"The beer I was selling was taken by police. They were in police uniform .... I saw 4 policemen........ They were in police

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uniform. They were armed. They had earlier on arrested my boss..... The very same people who arrested him were the same people who took away the goods........ Those policemen were from lganga. They first reported at the Police Post and came to us."

From the above excerpt, counsel was of the view that PW2 had sufficiently identified the people who ferried away the goods in 3 trips of a Dyana Pick-up as the policemen from lganga. According to counsel, that evidence was enough to hold the respondent vicariously liable as the policemen acted in the course of their employment.

Further, counsel scrutinized aspect no.3 where the learned trial judge stated: "PW2 never made any report of the confiscation of the goods to anybody despite the existence of a police post just ^a short distance from the store." Learned counsel contended that the trial judge further disregarded the evidence of PW1 who testified that he reported the confiscation of his goods to the DPC lganga and the O/C ClD. Counsel argued further that according to Exhibits P5, P6 and P7, PW1 wrote those letters inquiring about his said goods from the police and only received a reply from the Uganda National Bureau of Standards.

As another reason for rejecting PW1's claims, see aspect no.

1. Counsel pointed out that PW1 was charged with personating a public officer, contrary to section 87 (b) of the Penal Code. According to the trialjudge, the reason for impounding the goods simply did not connect

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with the offence. ln counsel's opinion, the trial judge erred in these findings because there was in fact mention of the goods in several instances while the criminal case against PW1 remained pending in court. ln his testimony to the lower court, the late Mbaziira stated that he was told by the DPC lganga and the O/C CID that his goods could only be released to him by the court, as the case was in Court. He further testified that immediately he realized that his goods could not be traced after the dismissal of the criminal case, he instituted this case against the respondent.

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ln the circumstances, counsel submitted that the learned trial judge erred in expecting Mbaziira to have done more than he did to pursue his goods. ln the premises, counsel prayed that ground 1 be allowed on the ground that the trial judge did not properly evaluate the evidence before him.

On the 8th June, 2006 when this appeal was fixed for hearing, neither the Attorney General nor his representative appeared though one Joel Cox Ojuko, Senior State Attorney, was duly served. Ms Basaza Wasswa for appellants requested Court to exercise its inherent power under rule 1 (3) of the Rules of this Court to determine this appeal on the written submissions filed in court by both sides. This court accepted the request.

Reacting to ground 1 of this appeal, the respondent submitted that the appellants' evidence was challenged in the trial court and the findings of the trial judge were based on proper evaluation of the submissions

from both sides. The respondent supported the finding of the trial judge to the effect that the late Mbaziira was charged with the offence of personating a public officer, which would not ordinarily warrant confiscation or impounding of his goods. The respondent was of the opinion that the alleged confiscation of goods simply did not connect with the offence under which tr/baziira was charged.

The respondent further submitted that PW2 Nangobi testified that the goods were ferried away in a privately owned pick-up. She did not note its registration number or the owner. She did not also identify those people who ferried away the goods and those people left nothing behind to show who they were. The respondent cited the case of Jovelyn Barugahare vs Attorney General, SCCA No. 28 of ¹⁹⁹³ (unreported), where their Lordships held, inter alia, that "it is trite law for a suit founded on vicarious liability that the plaintiff must establish the identity of the servant and that the servant was acting in the course of his employment." l0

The respondent contended further that neither PW2 Nangobi, nor the late Mbaziira, made a report to police or anybody in authority about the alleged seizure of the goods despite the existence of a Police Post in the vicinity. The respondent submitted that it was false and misleading for appellants' counsel to say that PW2 Nangobi, properly identified the policemen who arrested Mbaziira because she never said so during her testimony and it is not on record. 20

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The respondent further supported the finding of the trial judge to the effect that "it is interesting to note that in his notice of intention to sue, to the Attorney General, there is no mention at all of the alleged seizure of the plaintiff's goods." ln the premises, the respondent submitted that suits against the Attorney General are always preceded by a Statutory Notice. As there was none in the instant case, the claim for goods could not stand because it was premature and time-barred for lack of the statutory notice to the Attorney General and lapse of time within which to lodge such a claim.

The submission by the appellants that the omission to indicate in the Statutory Notice the confiscation of goods was an omission by counsel and should not be visited on them, according to the respondent, was per incuriam "he who acts through an agent acts by himself". Therefore, the respondent prayed for the dismissal of the 1't ground of this appeal.

The crux of the matter in the'l't ground of this appeal, as I understand it, is whether the learned trial judge properly evaluated the evidence before him or not. Appellants' first complaint was about total disregard by the trial judge of the evidence of PW1. ln his testimony, PW1 stated inter alia, that sometime in March 1999, two police detectives and 3 in police uniform arrested him from Bugoto landing site in lganga District. The police impounded his goods called "NDUME" worth USD 100,000 on the allegation of terrorism and that he was selling expired goods. 20

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The policemen took PW1 to lganga Police Station. The DPC lganga by the name of Mugisha, whom PW1 knew before, was concerned about terrorism and not expired goods. After 4 days in detention, PW'l was taken to lganga Court and charged with the offence of personating a public officer, contrary to section 87 (b) of the Penal Code Act. Subsequently, after about one year, the criminal case was dismissed for want of prosecution under section 117 (1) of the Magistrates' Courts Act.

Despite the dismissal of the criminal case, the police have since then to-date refused to return the said goods to PW1 without any justification. The DPC lganga and O/C CID informed PW1 that his goods were sent to Uganda National Bureau of Standards for verification. ln a letter of Ref. BO/SQC/064, dated 2000 - 07 - 10, Uganda National Bureau of Standards (UNBS) denied ever receiving such goods from the police. l0

Apart from reporting the seizure of his goods to DPC lganga and O/C ClD, PW1 wrote several letters to DPC lganga inqulring the whereabouts of his goods but he was ignored. Such letters appear on pages 22 - 26 of the record of proceedings. They were exhibited in court as Exbt. P5, Exbt. P6 and Exbt. P7 respectively.

lnspite of the above evidence of PW'I, the trial judge in his judgment referred to it as "aspects of the plaintiffs case, which on the face of it discredit his own claim". See Aspect No. 2 in his judgment. This being the 1't appellate court, I have re-appraised the whole evidence on record under rule 29 (1) (a) of the Rules of this Court. My

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own conclusions are that there is overwhelming evidence on record to show that PW1 reported confiscation of his goods to DPC lganga and O/C ClD. I find and hold that the trial judge was not justified to say that neither PW1 nor PW2 Nangobi reported the confiscation of the goods to the police or to anybody in authority yet the Police Post was in the vicinity.

Further, my observation from the evidence on record is that the trial judge wrongly quoted PW2's evidence out of context. lt is glaringly clear that PW2 properly identified the police who arrested PW1. They were the people who ferried away PW1's goods in 3 trips on a pick-up. According to PW2, they were the police from lganga Police Station. They reported to the Police Post in the vicinity before arresting PW1 and later confiscating his goods. ln my view, the evidence of PW1 and PW2 does not in any way discredit PW1's own claim.

The evidence of PWl was that he was arrested on the allegation of terrorism and selling expired goods. This allegation was dropped and PW1 was charged with personating a public officer. The trial judge found as a fact that PW1 did not personate any Captain of the UPDF. He found that PW1 was a Flight Captain who worked with African Airlines in Lesotho, Kenya, Burundi and Ethiopia. The mere fact that PW1 was charged with personating a public officer does not per se mean that PW1 's goods were not confiscated. The alleged offence does not ordinarily warrant seizure of such goods. This finding, with due respect to the trial judge, is not borne out by the evidence on

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a record. To the contrary, the evidence of both PW1 and PW2 pins down the police as culprits who acted in the course of their employment for which the respondent is vicariously liable.

On the issue of notice prior to suing, it is provided under section 2 (1) (a) of the Civil Procedure and Limitation (Miscellaneous Provisions) Act (CAP 72) and the First Schedule thereto that no suit shall or be instituted against

(a) the Government; r0

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- (b) - (c)

until the expiration of forty five days after written notice has been served on the Attorney General or left at his or her office. The notice must state the name, description and place of residence of the intending plaintiff, the name of the court in which it is intended the suit be instituted, the facts constituting the cause of action and when it arose, the relief that will be claimed and, so far as circumstances admit, the value of the subject matter of the intended suit. Subsequently, every plaint filed shall contain a statement that such notice has been delivered or left in accordance with the provisions of section 2 (2) of the Act.

ln the instant case, the trialjudge found and held as a fact that PW1's notice of intention to sue the Attorney General made no mention at all of the alleged seizure of his goods. lt was, therefore, the contention of the respondent that suits against the Attorney General are preceded

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by a Statutory Notice. As there was none in the instant case, the claim for goods was premature and time-barred for lack of statutory notice to the Attorney General and lapse of time within which to lodge such claim.

The respondent's contention, on the face of it, looks plausible but not serious, in my view. lt appears as an afterthought, with due respect. During pleadings, the respondent in paragraphs 4 and 5 of the wrltten statement of defence stated thus:

- "4. The defendant denies knowledge of the allegations contained in paragraphs 3 - 6 of the plaint and the plaintiff shall be put to strict proof thereof at the trial hereof. - 5. In the alternative and without prejudice to the foregoing, the defendant shall plead and contend: - (a) That the plaintiff is not entitled to any damages at all. - 20

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(b) That if the plaintiffs goods were impounded as alleged, and the plaintiff imprisoned, it must have been on reasonable suspicion that the plaintiff had committed or was about to commit an offence and the goods must have been suspected of entering the country illegally or improperly to have come in the possession of the plaintiff illegally.

(c) That the fact that he was later on charged in court confirms that the police had reason to believe that there was an offence committed.

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- (d) That if the charges against the plaintiff were dismissed, the plaintiff must have recovered his goods unless there were other claims levied on the goods. - (e) That there exists no liability in detinue or otherwise and therefore the plaintiff is not entitled to an award in damages or at all."

It is trite that parties are bound by their pleadings. The respondent is no exception to his above pleadings. During the trial, the respondent did not raise the question of statutory notice being wanting as a preliminary point of objection for determination before, during and after the trial. lt was only after the trial judge pointed out the alleged defect that the respondent in written submission supported him. The impression one gets with due respect, is that the trial judge simply wanted to find a short cut in resolving the issue.

lssue No. 3 that was framed and agreed by both parties reads:

"3 Whether the plaintiffs goods were impounded and confiscated as alleged."

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There is overwhelming evidence adduced by both PW1 and PW2 to that effect. Both witnesses testified that on the day in question, the police from lganga Police Station arrested PW1 on the allegation of terrorism and that he was selling expired goods. PW2 was very emphatic that it was these policemen who ferried away PW1's goods in a privately owned pick-up. PW1 also confirmed that the police at lganga Police Station detained him for 4 days before taking him to lganga Court charged with personating ^a public officer.

ln the written statement of defence, the respondent, pleaded and contended in the alternative several averments in paragraph ⁵ thereof. The respondent did not adduce evidence to show that PW1 was not entitled to any damages at all. lt was incumbent upon the respondent to show that if PWl 's goods were impounded then it was on reasonable suspicion that he had committed or was about to commit an offence. The burden of proof also shifted to the respondent to establish that the said goods were suspected to be entering the country illegally or that the goods were in the possession of PW1 illegally. Similarly, the respondent failed to show that the said goods were returned to PW1 or that there were other claims levied on the goods.

Under Article 126 (2) (e) of the 1995 Constitution, courts are enjoined to administer substantive justice without undue regard to technicalities. ln the instant case, there is ovenvhelming evidence to support PW1's claim for his goods worth USD 100,000. He

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should not be denied that claim because of mere technicalities. ln any case, Ms Lwere & Co. Advocates who allegedly made the mistake, their mistake should not be visited on PW1 who promptly engaged the present lawyers to conduct his case. lt is now well established that the mistakes of counsel cannot be visited on his or her client. ln the premises, I would allow ground 'l of this appeal.

The 2nd ground is that the learned trial judge misdirected himself in law and in fact when he based his judgment on wrong assumptions and applied the wrong principles of law

The 1't complaint here is based on "Aspect No. 5" in the judgment of the trial judge. He said "All the stamps on the purported importation documents bear one date 13th January, 1999. By implication, Kenya Customs and Excise, Eldoret, cleared the goods on 13/1/1999, they were transported on the same day and Uganda Revenue Authority, Malaba processed their entry into the country on the same day. Even the payments to the Bank were on the same day. I did not ²⁰ consider this a likely possibility."

> I would tend to agree with counsel for the appellants that the learned trial judge, with due respect, made wrong and baseless assumptions that it was not possible for PW1 to have had all his goods cleared within one day. While giving evidence in court, PW1 produced all the necessary documents to support importation of his goods. The trialjudge did not give any explanation why he

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did not consider it a likely possibility. ln my view, the learned trial judge should have based his judgment on the evidence on record rather than on extraneous matters. I find and hold that this complaint holds water.

The second complaint was that the respondent did not deny the impounding of the appellants' goods but pleaded generally that the police were justified in impounding the goods. Learned counsel for the appellants submitted that the onus of proof that the police were justified in impounding the appellants' goods, therefore, shifted to the respondent. He rightly pointed out that it is trite law that "he who alleges must prove such allegation". ln support of this proposition, counsel relied on the provisions of sections 101 and 102 ol the Evidence Act. He also cited the decisions in J. K' Patel vs Spear Motors Ltd, SCCA No. 4 of 1991 (unreported) and Jovelyn Barugahare vs Attorney General, SCCA No. 28 of 1993 (unreported).

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I would agree with counsel for the appellants on the above complaint because PW1 adduced documentary evidence that established his ownership of the goods. Exhibits P3 and P4 and cheque of USD '129,000 were tendered in court for identification. PW1 paid taxes of Ug. Shs. 40 million to the Uganda Revenue Authority for the said goods. PW2, as an eye witness, testified that the goods were impounded by the police from PW1's stores. One wonders, with due respect, why the learned trial judge refused to resolve this complaint in favour of PW1 !

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The 3'd complaint concerned statutory notice of intention to sue the Government. See: Aspect No. 6 of the judgment. Counsel for appellants submitted that M/S Lwere &Co. Advocates were the original lawyers for PW1. Being dissatisfied with their conduct of the case, PW1 changed his legal representation to M/S Basaza Wasswa & Co. Advocates. ln counsel's opinion, the trial judge should have found out from PW'l during the trial why his claim for the goods were missing from the statutory notice of intention to sue the Government but did not do so. Counsel pointed out that mistakes of counsel should not be visited on PW1. ln support of this argument, counsel cited Kiboro vs Posts & Telecommunications Corporation (19741 EA 155 and David Kabunga vs Leonin Karyeija & 2 others, Civil Application No. 19 of 2001 (unreported). lthink I have dealt with this complaint elsewhere in this judgment in which I found the complaint genuine.

Last but not least, appellants' counsel submitted that PW1 had proved his case on a balance of probability. She quoted Lord Denning in Muller vs Minister of Pensions (194712 All ER 372 when he stated that if the evidence is such that a Tribunal can say "we think it more probable than not," the burden is discharged. ^I agree with the appellants' counsel that PW1 had proved his claim for his goods on a balance of probability. Ground 2 must also succeed.

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In the result, I would allow this appeal with costs here and in the lower court.

Dated at Kampala this ....................................

$10$

S. G. Engwau<br>JUSTICE OF APPEAL.

$20$

THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

CORAM: HON. JUSTICE S. G. ENGWAU, JA HON. JUSTICE A. TWINOMUJUNI, JA HON. JUSTICE S. B. K. KAVUMA, JA

$10$

$\mathsf{S}$

CIVIL APPEAL NO.38 OF 2003

BETWEEN

$15$ 1. APOLLONIA NAKIRYA SSEKATABA 2. CONNIE SABIITI..................................

AND

THE ATTORNEY GENERAL.................................... 20

[Appeal from the judgment of the High Court at Jinja (Bamwine, J) dated 14^th August 2002 in HCCS No.95 of 20001

JUDGMENT OF TWINOMUJUNI, JA:

I have read, in draft, the judgment of His Lordship Hon. Justice S. G. Engwau, 30 JA.

I agree with the judgment and the orders proposed by him.

Dated at Kampala this.................................... 35

munua

Hon. Justice A. Twinomujuni 40 JUSTICE OF APPEAL.

THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

CORAM: HON. MR. JUSTICE S. G. ENGWAU, JA. HON. MR. JUSTICE A. TWINOMUJUNI, JA. HON. MR. JUSTICE S. B. K. KAVUMA, JA.

CIVIL APPEAL NO. 38 OF 2003

BETWEEN

1. APOLLONIA NAKIRYA SSEKATABA) 2. CONNIE SABIITI )... APPLICANTS

AND

THE ATTORNEY GENERAL....................................

$20$

$\vert \cdot \rangle$

Appeal from the judgment and orders of the High Court at Jinja (Bamwine, J) dated the 14^th August 2002 in HCCS No. 95 of 2000]

JUDGMENT OF HON. S. B. K. KAVUMA, JA.

I have read in draft the judgment prepared by S. G. Engwau, JA. I agree with that judgment and the orders proposed therein.

day of September 2006. Dated at Kampala this... 30

S. B. K. Kavuma Justice of Appeal