[2000] UGHC 43

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA, AT KANALA

CIVIL SUIT NO. 86 OF 1996

1. DAVID ETUKET)

...................................... 2. JANE ETUKET ) $\cdot$

VS

THE NEW VISION PRINTING AND PUBLISHING CORPORATION....... DEFENDANT BEFORE: THE HON. MR. JUSTICE V. F. MUSOKE-KIBUUKA:

I certify that this is a true copy of the original Registrar Date: 1815 05 Sign:

## JUDGMENT

The two plaintiffs are husband and wife. They filed this action against the defendant alleging defamation. They sought from this court orders enabling them to recover, in the case of the first plaintiff, special, general and punitive or exemporary damages, and, in the case of the second plaintiff, general and punitive or exemporary damages.

The background to the institution of this suit is quite short but rather unusual.

The first plaintiff is a high ranking foreign service officer employed in the Public Service of the Republic of Uganda. He holds the rank of Counsellor. He and his wife were posted in New York at Uganda's Permanent Mission at the United Nations between 1986 and 1994, where he served in various capacities and at different ranks. He also came into close contact with the highest dignatories within the diplomatic corps not only of the United Nations Organization but internationally. He was a member of various Uganda delegations to different international conferences in many parts of the world. At the United Nations Organization in New York, he was Cahairman of the General Assembly's Committee On Contributions. His wife, while in New York, was employed by the Permanent

Mission of the Republic of Botswana to the United Nations for three years. Exhibit P.11

The couple, who had returned to Uganda, owned, and were using, motor vehicle Toyota Camry, Registration No. UPS 942. The Registration Card is Exhibit P2.

On Friday, 18th August, 1995, the headline of the New Vision Newspaper read, "ITONGWA SUSPECTS NETTED IN LUWERO" Just below the head line, the story run:

> "Police on Wednesday arrested six members of renagade NRM Major Itongwa's National Democratic Alliance (NDA) who were on their way to what police said was a secret meeting in Luwero. The six men driving in a white Toyota Saloon Car, UPS 942, were arrested at Katikamu, about 37 miles North of Kampala, along the Kampala-Gulu highway. The car they were travelling in is at Luwero Police Station. $\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\$

On the day on which the story came out in the New Vision Newspaper, the first plaintiff was in Nairobi attending a conference as a delegate of Uganda Government. He was telephoned by his brother who informed him of the story. The plaintiff had to abandon the conference and return to Kampala immediately in order to find the best way to handle the extrodinary situation.

The second plaintiff who had driven their Toyota Camry, UPS 942 to her place of work at Muyenga, that very morning, was stuck in shock and embarrassment. She could not drive the car home and she could not leave the office until her husband arrived from Nairobi. She had frantically attempted to speak to some one in the New Vision office but without The first plaintiff<br>much success. / .drove it to the Central Police Station in Kampala where he obtained a letter of clearance, Exhibit P.4, from the Regional CID

$-2$ -

officer, CenEraI Region to the effect that rrEotor vehicl-e Re . No. UPs 942, Toyota Canry , r^'hite Saloon, Engine No. 35-038885 and chasls No. SUZI-076353 is NOT a subj ect of police inqulry as reported in New Vision of lSth Au ust, 199 5"

Even Ehen, the couple had to park their vehicle at hoEe for rrel1 over one week as they were too scared to drive it around tol,n.

The first plaintiff then contacted the then Corpolation Secretary of the New Vlsion Corporatlon, Mr. Patrick Kiggudu, and asked hln that the New Vislon publishes a correction and an apology. Mr, Kiggundu pronised to handle the situatlon with speed and u:gency. Hol,ever, nothing appears to have been done by the -Li er endar:t in that regard.

To aggravate the situation, on wednesday, 23rd AugusE, 1995, another article appeared on page 3 of the Nelr Vlsion publication of that day. It bore the following heading "Woroan Clains Rebel Car P1ate." The Erore relevant parts of the article ran as belov:

> "Mrs. Janet Etuket of lluyenga near Kampala, r.rho clalEs to own a car, registration No. UPS 942, yesterday rr,ent to police and asked for escorts.

Etuket 6aid she felt unsafe after press reports that slx suspected rebels driving in a vehicle nith siDilar reglstration nurobers had been arrested 1n lulrero.

The panic striken lady vho telephoned the Neu Vision yesterday at mid-day, said the reglstration mmbers UPS 942 was that of her car. She said she vas "shocked" to see yesterdayrs lead story in the Nee Vlsion The suqpects arrested at Katlkatru, about 36 niles North of Kampala along the Kampala-Gulu highway vere travelling in a white To ota Saloon car, UPS 942. The car was at Luwero Pollce Station. I'

lior^,ever, trro days aftervards, oo Fliday, 25th August, 1995, the Neq Vision, on page 5, published a letter wrltten to the defendant by Messers Enoru & Co. Advocates, P. O. Box 3155, Kaopala, on behalf of the plaintiffs. The letter was headed "Please donrt associate us with rebeIs." The last paragrap an apoloty. " h read,"We again dema:rd that you publish a retraction and

At the bottoE of the letter, in srnaller characters, there was appended the followlng sentence:

> "Editor: "We sincerely apologise for the eDbarrassDent and inconvenience caused to Mr and Mrs, David Etuket as ^a result of our s tory. "

The above publication was follolred by a letter addressed to Emoru ⁶ Co. Advoctes and slgned by Mr. Patrick Klggundu Corporatlon Secretary.

The lette!, Exhibit P7 read in fu1l as set out belor,:

> "Ref; NV/CS/ ²⁵ EBoru &Co. Advocates 'Plot. 7 llarket S treet 3rd Floor KaEpala Date: 11th Sept.l995

RE: WIIHOUT PREJIIDICE: MR & MRS ETUKET

We are in receipt of yourldated 25th August, 1995.

lle are indeed very reno-ieful to the above couple for the dlstress which they suffered due to the rnix up of the nuDbe! plates. We did every thing possible to correct the record i.n our subsequent issues. we also understand the police vas rnoved and acted quickly to stabilise the situation.

After due evaluatlon of all the facts at issue, you vould be hard stained to prove defamation on behalf of your cIl-ent. Your cllent should appreclate, that rre did whatever re could and there was no oalice Lrhatsoever.

However, we admit that there was degree of pain and suffering to which we are willing to make some nominal compesation.

Yours faithfully,

## Patrick Kiggundu CORPORATION SECRETARY"

This suit was filed in this court on 30th June, 1996. The defendant was properly served with summons to enter apparance and subsequently file a defence. But the defendant did neither. On 20th March, 1996, the Registrar of this High Court entered an interlocutory judgment in favour of the plaintiffs. The suit was then put before me for formal proof and assessment of damages only.

Whether the publications were defamatory of the two plaintiffs: I will start by deciding whether the publications which were made by the defendant were defamatory of the two plaintiffs or any of them.

It must be noted that the publication of 18th August, 1995, did not mention the names of any of the two plaintiffs. It merely quoted the number plate of their car referring to it as the car which had been used by persons who were well known to be fighting against and wishing to overturn: the Government of the Republic of Uganda. That was an act that is trasonable according to the law of Uganda.

The second publication specifically mentioned the second plainitff by name as Jane Etuket. By obvious implication, and especially as the car in question vas registered in the names of the first plaintiff, it may be fair to say that the first plaintiff was as well mentioned.

Defamation, by way of libel, is that publication which tends to injure a persons's reputation or good name, in the estimation of right thinking members of society generally, or to diminish his or her esteem, respect, good will or confidence in which a person is held or to excite adverse, derogatory or unpleasant feelings or opinion against him or her. Statements which tend to expose a person to contempt, hatred or ridicule certainly result into injury to that person.

Words which import or attribute a criminal offence or conduct on the part of the person or persons against whom they are written are defamatory per se. That is to say, by themselves and without extrinsic proof, injure the reputation of the person to whom they are applied. See Dr. J. A. Kamanyire vs Editor of The New Vision Newspaper and The New Vision Printing And Publishing Corporation (1992) I KALR. 133. Also Halsbury's Laws of England, Fourth Edition, vol. 28, paras, $10 - 12$ .

The plaintiffs do not have the burden of proving falsity or malice in order to establish their cause of action. If the words are defamatory, the law presumes that they are false. It is for the defendant to prove that they are true. Malice, in the sense that the wrongful act is done intentionally or wrecklessly, is also presumed so that the plaintiffs need not prove it. Halsbury Laws of England, Fourth Ed. Vol.28, per. 16.

Now, having found that the publications in the instant case were defamatory. I will now address the issue of assessment and quantum or the damages.

In paragraph $6$ , of the plaint, the first plaintiff seeks special damages in the sum of Shs.555.000/=.

As a matter of principle, special damages may be awarded to compensate a plaintiff in a libel suit for any readily quantifiable loss sustained as a natural result of the publication of the statement complained of and in accordance with the principles of causation and remoteness as apply to any other tort. Halisbury Laws of Englanda (Supra) par. 18. However, as a general rule, special damages must always be strictly proved. see John Nagenda vs. Sabana Belgian World Airlines (1992) I KALR 13.

The first claim in special damages is Shs.350,000= which the first plaintiff stated was spent by him on hiring alternative transport for

$\cdot$ $\cdot$

7 days at Sh". S0,OOO/= each day owlng to the fact that he had to park his car UPS 942during those 7 days following the defanatory stateEent by the defendaEt. The flrst plaintiff has, in ny vieU not Etrictt! proved that expense. No recelpts were produced. No person to whoB the Eoney vas paid gave evidence in court tp that effect. A11 there ls are the rrords of the plalntlff that he Lncurred that expense. That does not strictly prove the cIaln. The aBounf cannot, therefore, be auarded.

The second category of special darnffes claloed by the platntlff ls Shs. 180,000/= which he states vas the cost of an air ticket on Uganda AirJ-ines when he had to abrunptly leave the conference at Nairobl followlng the publication of the stateEent coDplained about in the New Vision issue of ISth August, 1995. The air tlcket and Boarding pass (photocopies) r.,ere tendered in evidence as Exhi-bit P.3.

While the Boardlng Pass rras fron Nalrobi to Entebbe, the air ticket \,ras not. In fact, the air ticket shows that it was not a one way ticket purchase in Nairbol but a two lray air ticket issued by Uganda Airlines on 2nd August, 1995 and aot 1n Nairobl but in Kampala, The issuing agent was Uganda Travel Bureau vhlch has lts offlce ln Kanpala. The amount lndLcated on the ticket is not US \$120 as the first plalntlff testified but 1t ls US\$236 for both legs of the trlp. The flrst platnfiff vas a civl1 servant entitled to an alr tlcket when on goverrulent trlps. There is no evidence suggesting that he had gone to Nairobl on prlvate businsess.

In the circuEstances, therefore, lt is not possible for thls court to regard the first plalntlffts claim 1It this particular regard as strictly proved. It is accordingly rejected.

Tne last item jn respect of special danages is Shs.2JrOOO=. Like the clain ir respect of car hire for the seven days, this claj-m too is not backed up by any evidence which r.rould render it strictly proved. l1I there is is the word of the first plaintiff which is not enough to strictly prove it.

Accordingly, I award no special damages jn this case.

The second clain is for general damages.

Ceneral darnages need no specific proof. The quantum of general Camages is a natter which falls withjr the discretion of the court taking, of course, into account, the facts and circumstances of the pLaintiff in society. It has also to consider the est i-mat ion Lhe defamed person was previously being held by right thiniag persons in society. The court woul-d counter balance that with evi-dence showilg how the plaj.:otiff was regarded by the right thinking members of society after the publication of the article.

?he position of the law is that once a person has been libe11ed without any 1awful ju:,tification, as indeed, aDpears to me to be the case in the instant case, the law presumes that some damage will flow froe the ordinary course of events from the mere invasion of his or her right to his or her reputatlon. Such damage is known as rigeneral damage. " Thus, a plaiDtiff who has proved a Iibel is entitled to at least nominal damages. If the plaintiff proves that he or she suffered any anxiety, aJrnoyance pain, embarrassment, etc, then the award of g,eneral damages may be jlcreased from the leve1 of nominal damages to "aEgravated darnages ir which is a nere increase in the compensat ory danrages.

Hc,Hever, in order to recover a substantial sura of money as "aggravated damages", i-t is inperative that a plaintiff in ^a :ie ja.raaticn action proves to the satisfaction of the c ourt -,, i'!at he o: she suffereci reduction i:r his or her reputation or esteem in as far as the right thinkinq nenbers of society were concerned.

In order to prove that reduction of reputatlon or esteem,, the ^pi.aintit'r' rnust adcuce evidence from either hj.s or her colleag,ues ,;r frcn any meruber of society who knew the plaintiff before the publication of the statement conplained of and who read Lhe axticle. The court can then judge as to how the right ^tr,ilking ]::.r;rbers of society regarded the plaintiff following ^Li.,c pubiication of the articl-e. The plaintiff's own evidence alone cannot prove that important eleneni of defamation which is also so crucial- in the determination of the quantrxtr of general da!'na6es. tJd q4gokq4q v. Bob Astles (1970) EtA. 374.

It i.s certainly not enough fcr ttre plaintiff, as is tne case in the instant case, to merely show that the words c on:plained crf ii;rpur.;eci a crirnirial- ol'fence and were, therel'ore, actionable ^t!jl-.,i. Lt is not sufficient to lead evioence merely to show t tlat l,ie i.;ew Vision has a w j.de circulation both nat j.onalLy and internationai-Iy and is read through the internet. It is a .,. ]1ot enough, and perhaps not even absolutely necessary to It'rve t,hat the plaintifis were known widely both nationally anc internationally in the dipi-onatic circles or otherwise. irvluence uust be lead to show the effect of the publication ;::icriunaEe. Ly this was not done by the plaintiffs in the inctanL case. on those v,ho so highfy knew or regarded the plaintiff.

This inportant element of de{aaation and how it affects the quantux of general cia::iage s that a plai,nt i.ff can recover, was

very well articulated in two recent cases of this court. One is Dr. Ruhakana Rugunda v. Teddy Sseezi Kyeeye And Another, (1992-1993) HCB 185. The other is Eriab Wavamunno V. Teddy Sseezi Kyeeye, (1992-1993) HCB 173.

In both those decisions, the court emphasised the principle that the determination of general damages is to be based upon the reputation of the plaintiff, the extent of the publication. the effect of the publication on the right thinking members of society and that the publication must be one that is capable of lowering the persons's reputation and esteem in the eyes of the right thinking members of society.

In Eriab Wavamunno's case, the defendant had published a story to the effect that the plaintiff, an eminent businessman of both local and international repute, had gone to a cafe, drunk tea and some beer on different occasions, all worth some 5,700/= but failed to pay for them. The plaintiff did not lead evidence showing the effect of the publication on those who read it. The court, therefore, awarded the plaintiff nominal general damages in the sum of Shs.500,000/=. The court, however, remarked that had the plaintiff proved the effect of the publication on those who read it, he would have recovered Shs.3,000,000/ $=$ as general damages.

In Dr. Ruhakana Rugunda's case, the plaintiff was a Cabinet Minister in the government of Uganda and a prominent Medical doctor. The publication had suggested that he had received undue grantification from what was called "the Marubeni Jackpot." He failed to lead evidence to show that he had been shunned or his reputation had been disparaged in the thinking of those who read the publication. He was awarded general damages of merely

Shs. 500.000/ $=$ as nominal general damages.

In the instant case, both plaintiffs failed to lead evidence showing disparagement of their respective reputation in the eyes of the right thinking members of society. I am satisfied, however, that each one of them should recover general damages the quantum of which are above nominal general damages for each one of them as the evidence shows, suffered a lot of anxiety, annoyance, inconvenience and embarrassment. In Exhibit P7. the defendant readily recognised that fact.

M/S Emoru submitted that I award a total of Shs.17,000,000/= to both plaintiffs. Even if each plaintiff had proved the effect of the publication on the right thinking members of his or her society, I would still have found a total of Shs.17,000,000/= to be too excessive. I would not award that sum of general damages in a case of this kind. I would have considered awarding Shs.6,000,000/= to the first plaintiff and Shs.3,000,000/= to the second plaintiff, as general damages.

In the circumstances, I award Shs.2,000,000/= to the first plaintiff and Shs.1,000,000/= to the second plaintiff. as general damages for the reasons which I have already stated above.

The last category of damages being sought is punitive or exemporary damages.

Unlike general damages which are compensatory, punitive or exemporary damages are always meant to punish the defendant for the wrong done to the plaintiff and for acting as a deterent. Daniel Oboth vs. The New Vision Newspaper, SC CA. No.12/90 reported in 1993 VI KALR 143. Punitive damages are awarded without reference to any proved actual loss suffered by the plaintiff. The conduct of the defendant and his persistance

in repeating the libel complained of are relevant considerations. Davis v. Sheh (1957) E. A. 352.

I have considered those principles of the law in relation to the facts and circumstances of this case. I do not agree with counsel, Mr. Emoru, that this is a case which should attract punitive damages. Accordingly, I award none.

I award interest at court's rate to both plaintiffs in respect of general damages from the date of the filing of this suit till payment in full.

The plaintiffs will also recover the costs of this suit against the defendant.

In exercising the discretion of this court to award costs to the plaintiffs, I have taken into account the fact that even though in Exhibit P7, the defendant had offered to pay some nominal compensation to both plaintiffs, he did not follow up that offer. He was subsequestly served with summons to enter appearance but he chose to merely await the outcome of this suit instead of following up the earlier offer.

In the final result, I enter judgment for both plaintiffs against the defendant. I order the defendant to pay Shs. $2,000,000/=$ and Shs.1,000,000/= to the first and second plaintiffs respectively together with interest at court's rate, from the date of $\frac{1}{2}$ in this suit until payment in full. I also order the defendant to pay the costs of this suit to the plaintiffs.

Musoke-Kibuuka Judge

8/09/2000

This judgment be delivered by the Registrar of the High Court on a date to be fixed by him.

V. F. Musoke-Kibuuka

$18$ $r\delta$ $\mathcal{N}$ Mi Emm de PIS prevent<br>Modgment pead of English.<br>Ordgment pead of English. I certify that this is a true copy of the original 13/15/2000. Registrar Date: 1.81.1.900 Sign:....................................

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