[2023] UGHCCD 391

### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA

## [CIVIL DIVISION]

## IN THE MATTER OF APPLICATION FOR AN ORDER OF HABEAS CORPUS AD SUBJICIENDUM

### **MISCELLANEOUS CAUSE NO. 276 OF 2022.**

KALANZI SHARIF ================================ APPLICANT

### VERSUS

- 1. THE ATTORNEY GENERAL OF UGANDA - 2. INSPECTOR GENERAL OF POLICE (IGP) ====== RESPONDENTS - 3. THE DIRECTOR, CID DIRECTORATE - 4. CORPORAL MUGISHA GENESIUS.

### **BEFORE: HON. JUSTICE EMMANUEL BAGUMA**

## **RULING**

This application is by notice of motion under article 44(d) and 23 (9) of the Constitution, section 34(a) of the Judicature Act and rule 1, 2 & 3 of the Judicature (Habeas Corpus) Rules seeking for orders that;-

- **a) An order that a writ of habeas corpus ad subjiciendum should issue to the Attorney General, the Inspector General of Police and the Director, CID Directorate.** - **b) The body of Kalanzi Sharif be brought before this Honourable court.** - **c) The costs of this application be paid.**

The application is supported by the affidavit of **Semukoteko Edward** the father to the applicant whose details are record but briefly states that; -

- 1. On 20th day of October 2022 my son was arrested by police officers from Wakiso Police Station on a complaint filed by one Peter Akalemu. - 2. I was informed that my son was taken to police and the following day I went to the said police station and requested that my son be given police bond but the then OC CID refused to grant him police bond. - 3. The following day I still followed the matter but on reaching the police station, I discovered that my son was neither in the said police cells nor his residence.

- 4. I was then informed that my son was transferred from Wakiso to Kakiri on orders of the commander police professional standards unit a one Sarah Kibwika who handed him over to one Genesius Mugisha the 4th Respondent and was instructed to hand him over to Kakiri Police Family and Child Protection Unit for proper management since my son is a minor. - 5. The biological brother to the applicant a one Segawa Denis then registered a case of disappearance of his brother at Mende Police Station Vide SD Ref: 14/23/10/22 and the matter is still at Police. - 6. The family has moved from office to office looking for the applicant and seeking justice all in vain. - 7. We have never seen my son again since he was arrested by the said police to date. - 8. The continued detention of the applicant without trial is arbitrary, illegal, unconstitutional, an abuse of the legal process and amounts to psychological torture, inhuman, cruel and degrading treatment of the applicant.

In reply, the respondents opposed the application and in an affidavit sworn by **Kibwika Sarah** the commissioner of Police on behalf of the 1st, 2nd and 3rd Respondent whose details are on record but briefly stated that; -

- 1. An application for Habeas Corpus is only competent when the body of an applicant is held in custody by state agents illegally. - 2. The applicant is not being detained at Kakiri Police Station. - 3. One of my duties as the Commandant Professional Standard Unit (PSU) is to handle complaints from the general public in regard to misconduct of police personnel and in order to diligently perform some of my duties, I randomly check police stations all over the country to interview suspects found in police cells. - 4. On the 21/10/2022, a team of PSU officers comprised of ASP Nambafu, IP Turyahebwa Dan, D/C Agenonga William and myself carried out an impromptu inspection at Wakiso Police Station, Kakiri Police Station and Nansana Police Station. - 5. While at Wakiso Police Station, I ordered for the immediate release of Kalanzi Sharif (the applicant) from Wakiso Police Station. - 6. Upon the applicant's release, all his property including money was returned.

- 7. I know that the applicant was arrested on the 20/10/2022 in regard to criminal trespass and theft vide SD 91/20/2022 and released from Wakiso Police Station on the 21/10/2022 in my presence and in obedience to my advice. - 8. I know that a general inquiry file vide PSU/KMP/GEF/505/2023 was opened on 10/8/2023 at PSU Headquarters Naguru in regard to the alleged disappearance of Kalanzi Sharif who was released from Wakiso Police Station on 21/10/2022.

The 4th Respondent **Mugisha Genesius** also opposed the application, and in his affidavit whose content is similar to that of the 1st, 2nd and 3rd respondents added that he is a traffic police officer who has never met the applicant and does not participate in release, detention, and arrest of suspects in relation to the criminal offences that are not traffic.

## **Representation.**

Counsel Chrispas Kabinga represented the applicant while Counsel Ocol Ambrose together with Mugisa Lydia represented the Attorney General.

At hearing, parties agreed to file written submissions whose details are on record.

Counsel for the applicant in his written submissions raised two issues for court's determination to wit; -

- *1. Whether the applicant's rights to personal liberty was infringed?* - *2. Whether the applicant is entitled to the remedies sought?*

## **Submissions by counsel for the applicant.**

Counsel for the applicant completely misdirected himself in his written submissions which were not connected to this application. However, court relied on the notice of motion and affidavit in support to resolve this matter.

## **Submissions by counsel for the Respondents.**

Counsel for the Respondents submitted that the applicant was arrested on 20/10/2022 in respect to the charges of criminal trespass and theft but was released on 21/10/2022 from Wakiso police station and he is no longer in police custody.

# **Analysis of court.**

I have looked at the provisions governing an application for a writ of habeas corpus ad subjiciendum as here below; -

Section 34(a) of the Judicature act provides for the Prerogative writ of *habeas corpus and it states that; -*

#### *"The High Court—*

*may, at any time, where a person is deprived of his or her personal liberty otherwise than in execution of a lawful sentence (or order) imposed on that person by a competent court, upon complaint being made to the High Court by or on behalf of that person and if it appears by affidavit made in support of the complaint that there is a reasonable ground for the complaint, award under the seal of the court a writ of habeas corpus ad subjiciendum directed to the person in whose custody the person deprived of liberty is; and when the return is made, the judge before whom the writ is returnable shall inquire into the truth of the facts set out in the affidavit and may make any order as the justice of the case requires".*

In the case of **Jovia Karuhanga Vs The Inspector General of Police MC. 86 of 2013** court held that; -

*"The purpose for a writ of habeas corpus ad subjiciendum is to review the legality of the applicant's arrest, imprisonment and detention and challenge the authority of the prison or jail warden to continue holding the applicant. The application is used when a person is held without charges or is denied due process. It ensures that a prisoner can be released from unlawful detention i.e detention lacking sufficient cause or evidence or detention incommunicado. The detention must therefore be forbidden by the law. An application of this nature does not necessarily protect other rights such as entitlement to a fair trial".*

I have very carefully looked at the affidavit in support of the application, affidavits in reply and written submissions by both counsel.

From evidence on record, the applicant was arrested by police on 20/10/2022 on allegations of criminal trespass and theft. However, the evidence on record shows that the applicant was released on 21st October 2022 on the instructions of Kibwika Sarah commissioner of police and commandant of police Professional Standards Unit (PSU) while carrying out her usual visit to police cells to ensure professionalism in Uganda Police and curtail illegal detentions.

The evidence of the Respondents was not controverted by the applicant.

In the case of **Basajjabalaba Hides & Skins Ltd Vs Bank of Uganda & Anor HCMA No. 738 of 2011,** quoting the case of **Samwiri Massa v Achen [1978] HCB 297** where it was held that; -

# *"Where certain facts are sworn to in an affidavit, the burden to deny them is on the other party and if he does not, they are presumed to have been accepted".*

It is a principle of law that uncontroverted facts contained in an affidavit are taken as true and only minimal proof is required of such evidence. Every affidavit constitutes evidence; where one party fails to counter the evidence called by the other party, unless the evidence is not of probative quality, the court would be justified to rely on the fact and use it to settle the issue in controversy, if the asserted fact(s) is plausible. **See Fortune International Bank Plc v City Express Bank Ltd (2012) 14 NWLR (pt 1319); Adebiyi v Umar (2012) 9 NWLR (pt 1305) 279 (CA).**

The purpose of a writ of habeas corpus ad subjiciendum is to review the legality of the applicant's arrest, imprisonment and detention and challenge the authority of the prison or jail warden to continue holding the applicant.

It ensures that a prisoner can be released from unlawful detention lacking sufficient cause or evidence or detention incommunicado. The detention must therefore be forbidden by the law.

It is my considered view that from the evidence on record adduced in both affidavits in support and reply, there is no reasonable ground in the complaint to warrant a writ of habeas corpus and subjiciendum.

It is this court's finding that after the inquiry into the truth of the facts set out in affidavits in support, this application for writ of habeas corpus fails.

## **Conclusion.**

In the final analysis this application fails with the following orders; -

- **1. The application is hereby dismissed** - **2. Given the nature and circumstances of this application, no order as to costs.**

Dated, signed, sealed and delivered by email on this **15th** day of **November 2023.**

Emmanuel Baguma

Judge.