[1992] UGHC 52

## THE REPUBLIC OF UGANDA

## I^N THE HIGH COURT OF UGANDA AT KAMPALA

CIVIL SUIT NO. .286 OF 1991.

DAVID KEDI ::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF

## VERSUS

ATTORNEY GENERAL J:::::::::::::::::::::::::::::::::::: DEFENDANT BE1ORE:. The Honourable Mrs. Justice M. Kjreju JUD GEM ENT.

The plaintiff, David Kedi, brought this suit against the defendant, the Attorney General claiming damages for unlawful ... • ' ?• arrest, false imprisonment, assault and coversion commited by the servants of the defextant\* It was the plaintiff's c.ase that on 19/9/89 he was arrested by an intelligence -officer of National Resistance Army (NRA) at 310th Brigade Headquarters Scroti, on . ' ' • . • • • j : •.. false and malicious allegations that the plaintiff was engaged in the criminal acts of unlawfully selling arms. Nhile at Brigade Headquarters he was tortured, assaulted and his property was confiscated^ The following day after his arrest he was transferred to Soroti Government Prison where he was further detained until 31/7/90 when he was returned to NRA Brigade Headquarters Soroti. Ho was detained there until 6/8/90 when was .sot free unconditionally, and his property which was confiscated was not returned, hence this suit. The defence merely denied all the allegations in the plaint, thereby denying liability.

At the hearing of the suit,the .plaintiff was represented Mr. by^Emoru of Emesu and Emoru Advocates. The Attorney General was represented by a State Attorney, Mr. Muhimbura.

Mr. Muhimbura raised a preliminary objection that the suit was statute barred as it was filed outside tho limitation period prescribed by the Civil Procedure and

Limitation (Miscellaneous Provisions) Act 20/69 and that the plaintiff could not benefit from the provision on disability as he did not specifically plead disability as required by law. After listening to submission by both counsel" - on this issue, I overruled the objection as the plaintiff was under disability and he had pleaded disability in his plaint. The plaintiff v/as also alloved to correct some errors in the plaint. The suit thereafter proceeded to full hearing and the following issue were framed;-

(1). v/hethor the plaintiff v/as unlawfully arrested

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- '2) ⁷'hethcr the plaintiff v/as unlawfully imprisoned and assaulted - (3) Whether the plaintiff incurred any loss or damage on his being dotai.iiod. ' \* - (4) Whether the acts complained of were done by servants or agents cf the defendant in the course of their employment and whether the defendant is liable. - (5) Whether the plaintiff is entitled to the reliefs claimed.

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The plaintiff called ⁴ witnesses in support of his case, the defendant did not call any witness. The plaintiff, David Kedi Pe/1 testified th-.t he is aged 27 years, businessman in Soroti. On 19/9/89 around 5<3O p.m.' he was arrested by an intelligence officer by the hane of Issa at the Brigade Head-uarters Soroti where he 'iud acne to take food to his brother in-law who .was being det .lied there. After he had delivered the food he was called into a r<a»in labelled 'Criminal Investigation Research Department¹ vhore he was informed that he v/as under arrest. His watch estimated at the cost of. Shs.40,000/=,Cap valued at Shs.800/=jbolt valued at Shs. 1200 shoes valued at *Shs.jOOO,* socks valued\* at Shs.oOOtindentities and cash Sh.s. 13,850 were taken fror-i

He was locked in a small room together with other people, he hod to remain shunding as the room, was small. It was very hot and dirty inside the room people were vomiting and others had blood stains. He recognised only one of the inmates the. rest were coldiers and he did not know them. Around 10.00 p.m. the same night 3 more people were brought into the cell, there was constant pushing against one another no food was served to. him that night. The collowing day at around 8.30 a.m. he was taken to the same room written on 'Criminal Investigation Research'. No was cold that he had been arrested because he was dealing in arms business which he denied. He was tied up with ropes. two hands behind, the rope was passed between his legs and wound around his mouth and his shirt was also put around his mouth. Three soldiers started beating him after throwing him down. He was sweating and his body was full of water, they untied the ropes. We was being beaten with roots of a big tree which grow from the sten. There was bundle of sticks from where they were picking from. He sustained injuries as a result of assault and bec me unconscious when he regained consiciousness he found himself in the cell, he had no shirt on but he had been untied. Ie sustained injuries on his right thumb, back, head and buttooks.

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At 5.00 p.m. that some day namely $20/9/89$ he was again called in the office his shirt was returned to him, there were 6 soldiers and a boy who had been arrested that day by the name of Nathan Oberev and another person by the name of Okello who has since diad bocause of the T. B. he got from the prison. He was laid down in the vehicle Datsan UVZ 275 with Okello and the car was driven by Nathan Odoret. They were accompanied by Byansi who we'd been given a letter by Ispa. When he got out of the car he found himself in Scroti Government prison, where they were put in derk calls where they stayed for 6 months.

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They were rec xrdod .in the books as lod ,ors. After ⁶ months they were transferee to wards where there *s* some light. Later he nas joined in prison by Nathan Odoret and his brother . Patrick Owiny# jhile at Soroti Prison he was not taken to any court of I....-' or remanded.

On 31/7/90, he was handed to soldiers who walked him back to to <Brigo.de> ;'cad?vrrtors^a He was taken to'the sane cell he occupied in 1989, he was being given food once a day. On 6/8/90 he released and told to go home. SJhen he demanded for his property which had been taken at the time he was arrested, he was told that if he still wanted to be in those cells he should continue asking for his property. He was not given any document on his release. On 10/8/90 he went to District Intelligence Security Officer, Richard Kabarira and informed him that he had been released from prison but that he had not been issued with any letter. After Richard -'Kabarira had cross checked. ?'ith th-.- Biryade Readquarters and confirmed that the plaintiff had b-on in prison he wrote a letter Exh. P1 addressed to the Headnr.ctor of Elimu College confirming the release of the plaintiff#

The witness further testified that before his arrest he was a student at 311: iu College. He wars also operating a small. business where\* ho eqrrod Shs.10,000/= per day. The business was situate at Plot 3 c :eri Road, Soroti, After his release he wont to R.gor?. Hospital for treatment of his eyes. He 'as /eak a'i:. could not walk, he went to hospital twice and spent Shs.;^/?00/= on treatment and Shs.16,000/= on transport. The medica.l i-rm from liger'a. Hospital was tendered ns Sxh. P2. He ■•.'■anted to be paid for lost reputation, humiliation education a-v" orf:S.ri''g.

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In cross examination he further testified that he had to take food to his brother in lav/ because the wife who is a sister to the witness yas pregnant. He was not told who had informed the arresting officer that he had been involved in ⁴ selling arms\* He knew, Okello because he had a recording studio. He further testified tint he did not have any .scars before he went to prison. Since his release he has been seeing a doctor at Muiago Hospital although he did not have the medical forms. He said that he did not know the meaning of the word lodger but he was called so by the warders. When he was released he was not issued nith any documents, the record stayed ^s with the warden. lie was attending S-3 in a day school, his school reports were tendered as Exh. P.6. He had licence for the ... business in Soroti town. He had lost his father, and being the eldest son he had to engage in business. The shop was a grocery but he did not have the accounts books. The seiko watch was sent to him by¹ his sister in Nairobi and he was told it cost Shs. '1-0,000/=, the watch was still new about ⁴ months. He said that the problem of his back started when he was in prison ns ^a result of injuries inflicted on him.

Joseph Odet ^P',72 testified that he was ²⁸ years old ^a businessman from Soroti. He said that his brother Nathan Odel was arrested on 20/9/89 with his vehicle UVZ 275 datsun pick-up and taken to Brigade Headquarters. On 21/9/89 he went looking for his brother and ho reached the Brigade Headquarters, he was also arrested but did not find the plaintiff there. After two months he was transferred together with his brother to Soroti Government Prison. In the prison he shared a ward with the plaintiff. The plaintiff had a wound on the back, head and thumb but he did not got any treatment.

On 17/1/90 the witness was taken to court and charged with terrorism. The plaintiff was never charged with any offence he remained a lodger until 31/7/90 when he was taken away by N. R. A soldiers: to a place unkown to the witness.

He further testified that before the plaintiff was arrested he had a shop on Gweri Road Plot 3 Soroti, he was also in Senior 3.

In cross examination he testified he saw Kedi's injuries when he joined him in Government prison. He said that the plaintiff was doing business only in holidays, the business was of produce, he was buying simsim, sogham and selling it. That he as getting a lot of profit of about Shs.80,000/= a day. But in re-examination he added that Kedi was also doing business after school, that there were other things in the shop like sugar and groundnuts.

The third witness to testify was PW3 Opio Egwedu aged 53 employed as officer in charge of Scroti Government Prison. He has been in this post since July 1991. He testified that he travelled from Soroti, and had been given Shs.20,000= by the father of the plaintiff and this money was not enough. When he received summons he checked the prison records and found that David Kedi was in prison as a lodger, he was taken in on 20/9/89, the witness produced the prison record book showing Kedi's name. He also tendered in court Exh. P.3 a letter dated 20/9/89 from NRA handing the plaintiff and one Okello John Rick rd to the officer in charge of Soroti Government prison, to be received as lodgers in the prison custody until investigations in their cases were over. The letter was signed by intelligence officer 310 BDE HQS. NRA. The wintess also tendered in a letter withdrawing Kedi from the Government prison to NRA 310 BDE HQC Soroti, dated 31/7/90,

$...17$

$6 -$

Exh. P-i-, he to-;tifi->d that Kedi ras released on 31/7/90 He said th-t Kvdi s not signed off on release although it is the normal ?r;ictico. He .said that he did not find any other documents coLicorning Kedi, that there were no correspondence between the prison and the army, Kedi was just brought in and taken out. Ho did ?:• ;t know whether the plaintiff was over taken to any court of law after his release.

In c.r?i3s—o::ar?.in?tion he testified that when he attends court, the crurc pays far the expenses and not his department. lie said th<\t ^q lodger moans that a person is in trasit, the • institution v.'hich is keeping him has nothing to do with him, he is just in custody. Kedi nrs also just in custody. He said that normally a nan released after serving a prison sentence does not sign off. But that if he is going to court the person t-kiii;; him signs for him. In the case of Kedi he went out the- ••'ay ho C'-me in. That th. officer omitted to sign the register v/hca IC.di as released but there was the. letter from the army asking for his transfer.

He further tectified that during the period of insurgency the law as ^o ■■or-.ti-'nal end people were being taken to court. All t\*'ose people who wore brought in as lodgers were handed to the army, ho did not hrve a record whether they we prosecuted or not. He explained that a lodger in transit means a person from one prison to nothe-r under normal administration. The lodgers in transit under normal circumstances would be entered into ^a register bub t'. c. army lodgers are not entered into ^a register, that there \*as no proper procedure for handling lodgers of Kcd.i's type, that this explains why there was a signature ¹ ^&lt;'\*.^c i:i ig •

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The last mitness for the plaintiff was PW4, Dr. Nadumba Edward Kirondo the tostified that he was an orthogaedic surgeon, aged '10 years working at Mulago Hospital. On $28/3/92$ he examined the plaintiff who informed him that in 1989 he had obtained injuries after being beaten by soldiers.

After examinables to found that the plainfiff was in general good condition, he had;-

- (1) An oblique ac recross the mid segment of his right thumb aspect about 2cm long. - $(2)$ Inability to flax his right thumb at the middle and distal je nto. - (3) A healed scar between the scapular blades at the level of 4th vetchma.

He further testified that the scalp injury were soft injuries as there were no scurs. He had recommended treatment that any have needed surgical repair of his flex tendon but that chances of this operation were unpredictable because of the period that hes passed since the injury. He estimated his disability at 30%. The medical report was tendered in as Exh. P5 He testifies that he was paid Shs. $40,000/$ = profession.1 fee and Shs.10,000/= for transport by Kedi.

In cross examination he testified that the examination was done at his climic. He had no way of telling that the injuries were sufficient in 1989. He explained that disability was calculated on the function of the particular part of the body, he said that the degree of function of the thumb is very important. He clarified that good condition means nutrition state, th t the plintiff was health. He was not able to establish the general weakness the plaintiff was complaining about.

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At the close of the plaintiff's case the defendant's counsel indicated that he was not calling any witnesses since he had failed to trice them due to numberous transfers which have occurred in the army. He said that he had instructions to proceed with Submissions basing on the plaintiff's case. Thereafter each counsel addressed me on the issues framed at the commencement of the hearing. I shall comment on these submissions as I consider the issues.

The first issue is whether the plaintiff was unlawfully arrested. Mr. Emoru, counsel for the plaintiff submitted that the plaintial testified that he was arrested on the 19/9/82 one Issa an intelligence officer when he had taken food to his brother in law who was detained at the Brigade Headquarters Soroti. Counsel referred court to the law relating to arrest as s tout in the Criminal Procedure Code Act and invited court to find that there was no reasonable or probable cluse for the arrest of the plaintiff and therefore the arrest was unlawful.

Mr. Mchimbura, counsel for the defendant submitted that the plaintiff is never arrested as alleged and his evidence was just a conception and he invited court to disregard it. He submitted that much was said about Issa who is supposed to have arrested the plaintiff. Counsel invited court to note that since 1987 there has been insurgency in the North $and$ North East of the Country where anybody could have paraded as an intelligence or army officer in order to arrest anybody moliciously for his personal interest and he contended that Issa fell in this category. Counsel invited court to find that the defendant is not liable for Issa's actions. A big portion of the the defendant's counsel's submission on this issue was not

supported by evidence, it was just conjecture from the bar, I therefore decide to ignore it.

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$\overline{9}$ The rigt t ^&gt; liberty ;,f every person in Uganda is guaranteed by the constitution . namely Article 10 of the Constitution: and it can only be ta::on away in conformity with the law. The Criminal Procoiure Code contains the main body of the law regulating powers of arrest. The code 'gives powers of arrest to police ^o ' : ic :rs, Magistrates and private persons. Police officer:; under S.23 of the code are given power to arrest without a -/arraut under certain circmstances which include arrest of any person whom he suspects upon reasonable grounds of having committed a cognisable offence namely an offence under any of the previsions of chapter XVII of the Penal Code or any offence for which under any lav? provision is made for arrest without a nrmt. Military officers have no general powers under our, I.-.-.\* to arrest without a warrant similar to those of the civil police °fiicers. However, the military officers lik«? responsible private persons may arrest any person who in :iio prscence, commits a cognisable offence or whom he re\ -nri. bl^ suspects of having committed a- felony S. 28(1) of Cri: ii-.-.l Procedure Code Act refer. Section 29 of C. P. C Act to ha dove?? tm person arrested without unnecessary delay to a police officer and in the absence of a police officer to take such terser to the nearest police .station.

In th? pr-.'.ont c.-se the plaintiff testified that he was arrested by <-.e I^sa nt the Bri ade Headquarters Soroti on allegation th i do '..'as dealing in arms. The defence did not adduce ³ ^vid ¹ showing the grounds on which intelligence officer be.:?.' hi; suspicion that th^e plaintiff was dealing in arms. Counsel .•' •■? the defendant in his submission attempted to disown Issa th t ho could have been an impositor, parading as

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an officer an officer of NRA because of the insurgence in the area. There was no evidence adduced to rebut the plaintiff's evidence that he was arrested within the Brigade Headquarters Soroti. It is difficult to believe that a total stranger can find his tay into an army headquarters and start arresting people without the knowledge or authority of people in charge. The insurgency in the grea should have ade the military personnel more contious. I am therefore not persuaded by defendant's submission that Isaa was not an intelligence officer and therefore the defendant is not responsible for his acts. However, I believe the story of the plaintiff that he was arrested by one Issa at the Brigade Meadquirters Scroti on 19/9/89. In the absence of evidence shoring reasonable grounds for the suspicion on which the enrest of the plaintiff was made, I find that the arrest was not justified and was therefore unlawful. I was guided by the following cases in deciding this issue, Chistie Vs. Leachinsky 1947 AC 573 and Maker / University Vs. Kasiringi/ $\overline{1977}$ RCB 25, where arrest without a warrant was considered.

The second issue was whether the plaintiff was unlawfully imprisoned and accounted. Mr. Emoru counsel for the plaintiff submitted that the plaintiff testified that he was arrested on 19/9/89. On 20/9/89 he was transferred to Uganda Government Prison 3croti chore he stayed until 31/7/90, when he was taken to Britade Meddaucrows Soroti where he stayed until his release on 6/8/90, making a tot 1 of 322 days detention This evidence is corresponded by th t of PM2 and PM3 and also Exh. P3 and $\mathop{\rm Emb}\nolimits\bullet P^+$ . Councel submitted that having proved that the phintiff was imprisoned, the burden shifts to the defendant to justify the reason for the imprisonment. He referred me to the case of Sam Euclabo vs. Altorney General Civil Suit No.858/88

Unreported, there the wird imprisonment was discussed by his Lordship Jubblee Talaro. Counsel submitted that no excuss was given by the antendertwhy the plaintiff was arrested and imprisoned with at being charged or being taken to any court of law, he invited court to find that the imprisonment was unlawful. Mr. Muhisfiura, counsel for the defendant invited court not us believe the plainthif's story that he was imprisoned. Counsel submitted that PG3 officer in charge of Seroti Government Prison 's evidence should not be believed. That the record book produced by the witness showing that the plaintiff was imprisoned way not genuine, since it did not show any signiture of Prison Officer when the plaintiff was released. He further submitted that the witness testimony that it was just an omission.on the part of the prison authorities should not be believed. Gountal also submitted that the letter from District Security Officer whs not properly proved in court namely Exh. P1, and should be rejected. He therefore submitted that the plaintiff had failed to prove that he had been unlawfully imprisoned.

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The evidence on record show that the pl intiff was arrested and lookined in Sereti Government Prison, where he was joined by PW2. P. F officer in charge of Government Prision Soroti tendoned in court Exh. P2,, namely a letter from NRA 310 inflatry Brigde RQS Sorati, dated 20/9/89 addressed to the officer incharge Soroti Government Prison. Bhe letter who referenced "Kedi David Enyagu, Okello John Richard^a and it was sollows; -

> "Place receive the above mentioned an language in your custody until investigations in their cases are over. They are to be treated as dangerous as those already in your custody. Your usual co-operation is highly appreciated."

> > $...$ /13

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Thereafter someone signed for Brigade Intelligence officer 310 Bri^q Soroti and the stamp of the NBA intelligence officer NRA v;a.s affixed.

The next letter referred to in support of the plaintiff'^s case was tendered by ^P'75i as Exh.p4. The letter was adddressed to the OC Ug. Prisons Soroti and was referenced 'Withdraw of Lodger\* it w.-.s from FRA Brigade Headquarters Soroti dated 31/7/90\* The letter ..a.s as follows;

> ''You are requested to hand the following lodgers to bearer who will escort ^em ^°this office for oth.r managements. There are 1. ; Kedi David 2 Okello John. Your usual Operation is highly appreciated•"•

NPA stamp *\:e.s* -affixed. I quoted the letter verbatim without any corrections' of'gramma or otherwise. On the same letter were endors d the following;-

> ::Sgt. Onyorn, Handover the above lodgers accordingly (signed) 31/7/90"

From the above letters I am convinced that the plaintiff was detained in Soroti Government Prison from 20/9/89 until 31/7/90\* Thu letters were tendered by an officer in charge of the prison., nnc1. qItLough he was not at the sation when the plaintiff ^v/qs detained ?.nd released, he was in position to get access to the records which he » id. Counsel for the defendant queried, the- record book tendered by PW3- However after lookir . at the instructions on Exh. P^, telling Sgt. Onyom to release\* the lodgers, it is possible that officer concerned may h- ve fcr.utten to sign against David Kedi's name when he Vu.s being returned to Brigade HQS. This omission was also not ver;/ serious in view of the fact tho^t there was

another docuiac-ut pr pa:'lv .ji'/nod ordering for his relea se to NPA namely Eza. P4. Counsel, for the defendant also challeged Exh. P1 ^a letter.from DEO that it was not properly tendered in court. I j.groo with counsel's objection that the author of the letter or the adjresrjoc should have tendered the letter, I shall therefore disregard it\* However, as already stated there is onougl evidence to show that the plaintiff was imprisoned Unlike, counso?. f x\*' the defendant, I have found PJj> a truthful witness, I did not think he had conspired with the plaintiff to tell li,.s as allowed by counsel.

It is new settled that once the plaintiff has proved that he was impriso'.cd, the burden of proof shifts to the defendant to show th...t th ; detention was lawful. I shall refer to the ca-j^e , of Seka,.,go vs. Lingo District Administration HCGS No.^62/1965 where his Lordship Justice Fuad (as he then was) said that the gist of the action of false irnprisonement is the mere imprisonment, - intiff need not prove that the imprisonment was unlawful or ::i-,j.iciou-. ;ut ostublisiF⁰ a prime. facie case if he proves thcG ^h ■; was risoned by the defendant\* the onus the.ⁿ lias ca the dc-f nt, of proving justification.

The evidence ;:i record show that the plaintiff was in custody from 19/9/89 until 6/8/90 when he was released. The intelligence of.7 injr having arrested the plaintiff he was required to hand ':i«2 to a police officer or take him to a police station. Tiisto./.d the- plaintiff was kept in dotation in a Government Prison for almost a year. The plaintiff was not charged with an; offence and was not tak-n ro any court of law until release. Tlu.- defendant did not adduce any evidence to justify the detention of the plaintiff. I therefore find cric ingrwdiei ts of unlawful irnprisonmoixK\* of the plaintiff f.cxat or his sei'v.ants proved during t-v. period of detention.

This bx'injs mo to second part of issue number two as to whether the plaintiff was assaulted at the hands of the defendant's serv nts, Mr. Emoru counsel for the plaintiff contended th t this was so. Counsel referred court to the evidence of P./1, PV/2 that of the doctor'p.74 in support of this contetion. Mr. Muhiaibura counsel for the defendant submitted that the plaintiff was never assaulted or tortured by agents of the defendant and that bis ovidoace w:.s exaggrated in order to get big money\* Counr ¹ further submitted that the scars on the plaintiff'^s body and thumb could h.ve been sustained by the plaintiff . from elsewhere not necessarily from the prison. That the doctor could \*,\*.t tell exactly when the injuries were sustained.

The plaintiff testified -chat on 20/9/89 after his arrest at Briag?.'.<? II')S Scroti he was taken in an office where he was accused of dealiin arms business which he denied. He was then tied with ropes, his shirt v?as taken off and put around his mouth, he was thrown on th ² floor and three soldiers started be.'t.'ni \*iiu using roots of a big tree which he could not remembe: its He was swearing all over the body because of the assault he oceanic unconsious when he regained consciousness he found him :olf iu the cell, he had been untied but had no shirt on ahd had injuries on his right thumb, back, head and buttocks•, The evid >nce of the plaintiff was corroborated by that of P.72 •/:;.) joined the plaintiff in Soroti Government Prison and fox?hi him with a wound on th back, head and thumb and th it h.. w. .b\* not getting any treatment. the doctor who examii.oA the jluintiff on 28/3/92 found that he had sustained rjo -.o injuries and assessed his permanent disability at 30%.

The doicn-.'.anb did not adduce any evidence to support his submission that the plaintiff was never assaulted. From the evidence- narrated above it is clear that the plaintiff sustained injuries. In the absence of any evidence to the contrary it can safely be conluded that the plaintiff sustained the injuries as a result of the beating inflicted " on him by the soldiers. I therefore find, that the plaintiff was assj.u1t •jd«

The next issue No. ³ » is whether the plaintiff incurred any loss or on his being detainjd. Counsel for the plaintiff submitted that on the plaintiff's arrest«somc of his personal belongings were confiscated from him including cash Shs.13.,350/=• After his release his property was not returned to him, he also lost Shs.0,000/= he had paid for ■..school fees. Counsel also submitted that the plaintiff lost Shs.10,000/= ho /as getting from his business per day. Tire plaintiff aloe claimed loss of his eduction. The plaintiff als ^j suffc-icd pain when he was beaten,and kept in a dirty tiny cell. That according to medical report the plaintiff • suffered ?•eri-nont disability of 30%. Counsel invited court to find that the plaintiff had suffered loss and damage. Mr. liuhiniburr counsel for the defendant submitted that nothing o' the rjl'.intixf's property was converted by the defendant's servants. That the plaintiffs claims were not

pi'OvO'.! before court and it was not corroborated by anyone. Counsel submitted that no receipt was produced to show that the plaintiff had bought his watch at ;Shs. U0,000/= with regard to die business no evidence was tendered? before court to show that the- plaintiff was carrying on ahy •• .business f jt //^crilo a trading licence, tqx certificate or books of accounts. Counsel invited court to find that there was no logs of business as claim .1 by the plaintiff.

From th.: dvidouc^e of the plaintiff, PW2 and I have found trait some l.v?s tc the plaintiff have been proved I have have found that the plaintiff did not get back his watch value! at\* 3hs.4C,000/= The defendant did not adduce any evid .'ncc to contradict the plaintiff's evidence. The plaintifftestified that th-e. natch was sent to him from his sister in ( Nairobi, it therefore not easy to produce receipt since he never purchased the- watch himself but I believed his story. I also found that tao plaintiff had proved the loss of the following items, Cap valued at Shs.8000/= belt valued at Shs. 1200/= socles valu-.l at Shs.800 shoes valued at Shs.^000/= cash Shs. 1r , o>0/=.

Although, the plaintiff produced some reports showing that he vr\s *c\* student at Elimu College, he did not produce any receipt to show that ho had paid school fejs for the third term of Shs.40,000/= even the second term report did not indicate how much ho was supposed tc pay for third term. I have therefore found that this claim has not been specifically proved as inquired by -she law.

Counsel for the- .plaintiff submitted that tie plaintiff could net -j.jrsuo Kvs education as a result of the imprisonment, however ^I did nt find cu%y evidence on record showing why after the- plaintiff had been released he did not go back to school espc-ci-.lly alter'he had been cleared by DSC Soroti. But this ia nut tc- say that the plaintiff is not entitled to some compear.ti'?: for loss of education for almost a year. I therefore fin'. that this claim for loss of eduction can only succeed in ->:rt for the period the plaintiff was imprisoned.

The plaintiff also claimed that he had lost business which he v.'a.'b carry?. on ^b if ore hi' arrest.

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In his testimony the plaintiff told court that ho used to do his business in the evenings after school and he was earning about Shs-. 10,000/= per day. Ho claimed he had to do business because had lost his father and he had to support his family as the eldvat son. Ho claimed he had ^a licence relating to the business a.lth -u-vh he 'id not produce it in court. P72 testified that the plc.ij.tiff used to engage in business during the holidays aVie- .c earning about Shs.80,000/= per day. In cross exeninatiun he added that the plaintiff used to do business .after school\* p.73 in his testimony stated that the father of the plaintiff had given him Shs.20,000/= to travel to Kampala an:'. ^c ^l tend court. The witness was not cross examined on this avid,:.co, thus living contradicting evidence on record, the plaintiff chained his father had died by ¹⁹⁸⁹ but P73 claimed ho ha." been given money for transport by the same person who is suap. sad to be. dead. On this item of loss of business, I agree with counsel for the defendant that it has not been proved, tbs. ^a \_.re number of contradiction which have not been explQln^d .'.n.: no documents were produced to support this claim as a jcnulac claim. The plaintiff also claimed that he spent Shs..3500/= on treatment at Mgora Hosptal after his release, an? Shs. 16,000/= ..c.s spent on transport. Although these'claims were not rlor. '.ad, vboy were possibly incurred by the plaintiff as there is r. ^l.'.'. I^j .1 i\-rm Exh. F2 showing that the plaintiff went to ilgor.1. tio.ipit.?.! on 30/8/90 and was tr?.,ted. This claim "ar a-t objected to by counsel for tho defendant, I shall thar. i'.-ra .•. How this claim. The doctor Ph'⁴ also testCied that the pla.i. tiff paid him Shs.40,000/= for the medical r-.port Shs. 10,000/= for transport to attend court. I shall also allow these claim since they were proved before court and ;ere nvt challenged by counsel for the defendant.

........../19 The next issue No.4 is whether the acts complained of were lone by the servents or agents of the defendant in the course of their employment and whether the defendant is limble. Counsel for the plaintiff submitted that the plaintiff testified that he was arrested by an intelligence officer named Ison and L for transferred to Uganda Government prison which is run and maintained by the agents of the defendant. These facts were confirmed by PW3 and a letter from DSO. Counsel invited court to find that the people whom the plaintiff holds as responsible were the a ents or servants of the defendant. As to whether the acts were done by the servants in the course of their employment counsel referred court to the case of Robert Lukwago Vs. Attorney General HCCS 1166/88 1989 KLR 204. In that case it was stated that the law relating to the ligbility of master by the acts done by his servants in the course of employment was settled as laid down in the case of Muson e Vs. Attorney General of Upunda 1967 EA 17

> WAN act may be done in the course of a servant's employment so as to a ke his master liable even though it is done contrary to the orders of the master, and even if the servant is acting deliberately, wantenely, negligently or criminally, or for his own benefit, nevertheless if that he did is merely a manner of carrying out what he was employed to carry out, then his master is liable."

> > $\ldots. / 20$

Counsel invited court to find that the person at Brigade HOS. and Government prison Scroti were acting as agents of the defendant and the defendant should be liable.

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Mr. Muhimburg counsel for the defendant submitted that if plaintiff was over arrested which is denied, that he was the not arrested by the grants of the defendant. Alternatively counsel submitted that it the plaintiff was prrested, then the servants were on Wieir own frelic without any authority from the defendant to arrest any body without reasonable execuse. Gaunsel referred me to a Kenya wase of Patel & Anor. vs. Tandali & Anor 1936 Kenya Law Reports P.8 where it was held that where a. servant is not acting withdin the scope of his duty and without authority of the master, the master is not limble. Counsel submitted % of in the instant case soldiers had no authority to arrest the plaintiff. He further submitted that the case of Musonge cited above was listicushable from the present one in that, officers in Musingoto bale had specific instructions to go and put out a riot and thereff so had authority to carry out the actions they did but in the present onse Issa had no authority to arrest the plainblow.

From the Qb.ve evidence on record I am convinced that whatever happened to the plaintiff from the date of his arrist until his release has being done by the agents or servants of the defendant. As already ataled, it is hard to believe that strangers can be alloued to overabe at Government army headquarters without being defected and keep someone in continuous detention for almost a yequ without the authorities! knowledge. If such a situation who allowed to take place people of this country would be in a completely helpless and defenceless situation.

The next question is whether the servants of the defendant were would the course of their employment.

$...$ /21

The case refer ed to me by counsel for the defendant was not provided by counsel and my efforts to trace it have failed and I have therefore not made any reference to it. Nowever this fact should not prejudice the defence case since there are authorities in our case law on the same matter. I agree with councel for the plaintiff that the law governing the scope of the sory ato! employment and the liability of his master was phobad in the case of Muwonge cited above. It is settled law that the master is even responsible for a criminal act of his servent if the act is done within the general scope of the servant's ourloyment. With that in mind the plaintiff was arreated by an intelligence army officer, at Brigade Headquarbor: Scroti and accused of dealing in arms. I takesnote of the insurgency which has occured in Scroti since to the present day, 1987 and is still viewe $w$ / when the intelligence officer arrested the plaintiff he must have been carrying on his duties as an intelligence officer and whatever he did, he did it in the scope of his employment. The recept, letention, assault and conversion of the plaintif. 's reporty were all done in course of his employment although they may not have been authorised by the defendant.

As was stood in the care of Muwon e, cited with approval in the case of Jose & Lakvaj. vs. Attorney General that even if the servant is acting deliberately, wantonly, negligently or criminall^ey, or fow his own benefit, if what he did is merely a manner of clarific out what he was employed to carry. out, then his master in liable. I do not agree with counsel for the defendant that Murange's case is distinguishable from the present case I think in both cases the officers were given powers to carry out their luties which they exceeded, and percessive power does not exoncrate the master from liability.

$\cdots \cdots /22$

Once it is proved that the servant was an employee of the marboar there is a pressure that he was in the course of amployment. The burden tion lies on the master to prove the centrary as was stated in the case of Iuina vs. Arua Town Council /1977 HCB 28. The defendant in the process o se has not discharged this burden, $n \cdot j$ In the result I conclude that the soldiers were acting in course of their employment when they arrested, imprisoned, essaulted and confiscated the plainfift's property and the defendant as their master is limble.

This brings we to the 5th issue which is whether the plaintiff is artilted to the reliefs sought. This issue was partly dealt with when issue Ro. 3 w s being considered, I shall there ore confine my olf to the reliefs due to the plaintiff which have been proved. As to whether the plaintiff is entilted to the special diargon clude , in the plaint I say here that the law relating to special darages is that they should be pleaded and specifically proved. The case of Kampala City Council vs. Nakaye 1972 EA 446 rater. In the case of Kygmbade vs. Mpigi District Administration 1983 MCB W. & Justice Masika C. J. (as he then ses) held that special danger must be strictly proved but they need not be supported by documentary evidence in all case. In this case I have 1 and that special damages have been proved although they were no documents to support all the claims but where I have allowed that I was convinced by evidence on record that they were genuine.

The plaintiff is a main! the following special damages, in respect of his property which wis converted and have been proved to the multiplication of the court. The value of the properties is as the time of conversion.

$\cdots \quad \cdots \quad \cdots$

..... $/23$

$22.$

$(a)$ Belt valued of Sho. 1200

$(b)$ Cap valued at Sha.800

(c) Socks valued at Sus. 800

$(d)$ Shoes valued at Sha.3000

(e) Cash valued at Shs. 19,850

The following special damages were also proved and are awarded to the plaintiff.

Cost of tre treat t Ngora Hospital Shs.3500 $(1)$

$(2)$ Transport to the Hospital Shs. 16,000

$3.$ Cash of the medical emort Shs.40.000

$(4)$ Money given to the doctor to transport him to attend court Shs. 10,000/ $=$ .

This brings me to the issue of general damages which the lew implies or produces naturally to flow or accrue from the wrongful act and may be recovered without proof or any amount and are usually left to the individual court for assessment. Counsel for the plaintiff should that the plaintiff should be awarded exemploy and general damages as this is a proper case where such as not should be made. Counsel referred me to the following cases in support of his submission.

(1) Solomon Avone vs. Attornoy General 1982 HCB 42

$(2)$ Kyambadde vs. Niji District Administrator (supra)

Fred Sentamu vs. UCD $\sqrt{1983}$ HCB 59 $(3)$

$\cdots$

In the case of Sendamy it is held that where unlawful arrest is followed by unlated deprisonment, there should be a lumpsome award for both to the instead of splitting them.

On quantum of the job c unsel referred me to the case of Nanyanzi Ageneci vo. Ugunda Retal Produce & Enameling Co. Ltd. Civil Suit No. 1550/86 reported in 1989 KLR 148 where his $\overline{\texttt{the}}$ Lordship Justice Onne & america / plaintiff Shs. 70,000/=

$.../24$

general damages lor -tine p... .intiff' s crushed thumb with a permanent disability r.b "?0% in the present case counsel suggested an award of She•500,000/=, ;/ith regard to unlawful arrest, imprisonment, and i-.jir.ult counsel referred me to the alraedy cited case of IC-AtiE/D^G vs .attorney General where the plaintiff who had been arraotod for hours -./as awarded 3hs«>,000,000/= Counsel submitted tb .t in *. •:.e present case* where the plaintiff h-.'.d been detained nor >2? -'''.yc nd bis property converted an award of Shs.10 mi?.lion . ould he adequate compesation. Counsel also pray,d '\-r interest on the claims at 50% and costs of the suit.

' Mr. Muhiubuca oquu-vg-I f«r the defendant submitted tha't the plaintiff •. ⁱ e..tiilec-. to exemplary damages as no torture was sufficc-r.tly proved and that the acts of the defendant's servantj ^c-iv act unconstitutional or high handed. That the plaintiff .aild on? / recover compesatory damages. Counsel submitted t the ⁰ -.intiff should be awarded general damages of Shs.1 million.

With regard to the amount to be awarded for the general damages, the principle is 'co put the plaintiff as far as money can do to the position he -.xs in before the wrong complained of was commited. Cut in t?/.\* case of exemplary damages the award is punitive. I a.p/ec with the holding in the case of Kyambadde vs. Mpiji District administration (supra) that the award for ^c c. 'peas'.lion should oe made first thereafter the court should consider'r^m the point of view of the conduct

ox tjie defendant v/hc';.'.or the cc -.n.ensa.tory sum also satisfies the need for exempla-V ward, in the case vrhere exemplary damages are appropriate. If the ju; \* islies >oth needs no more should be- done If the sw.i of punitive level then additonally

..../25

the sum should be raised to an appropriate level. That making two cap make of rds is errenoeus in law and cannot be accepted. It has already been found that the arrest and imprisonment of the plaintiff by the servants of the defendant were injustified and therefore unlawful. The plaintiff who was a student was averaged, him education was disrupted for a whole your. He was assaulted, after $a!$ most being tied with ropes, locked in a small, hot dirty cell with other people. some who were vomiting and had blood stains. He sustained injuries on his thumb back i and buttocks after the assoult, when he was transferred to Soroti Government prison, he stayed in a dark cell for S matths. His injuries were never treated. He used to get food once day. At the end of the detention he was released mit being charmed and without his property being returned to kim. As a result of what is stated above the plaintiff is entilted to general damages.

The next question is whether the plaintiff is entitled to exemplary damager. The principles upon which exemplary damages are aminded invition stated in the case of Kyambadde vs. Mpigi District Administration (supra) as follows;-Apart from the structured provisions two categories of cases have<br>been recognised where examinary damages should be awarded;-<br>(1) There the conduct of the nervants of the government

towards the plainting is appressive, arbitrary or unconstitutions.

(ii) there the definition of state that been calmoulated by him to make profit for himself which may well exceed the compensation payable to the plaintiff.

The following chould also be borne in mind when considering the awards for exemplary demandes.

$\cdots \cdots / 26$

(i) The plaintial custoff proover exemplary damages unless he is a victim of the purishable behaviour.

(ii) That since t..ie *zrr* to award exemplary damages is ^a weapon which c..n be use.'. 'ooth for and against liberty, restraint oi^ht to be e:.-rcised and to that end the court has a discretion in tb. ? matter.

*26*

(iii) The means of y.-.rti..: lich are relevant in compensation are material in '• .e u;essment of exemplary damages.

Taking the above principles irtte consideration and the facts of this case, I have found th,t the plaintiff w;s

arrested onunfound2dgrounds that he was d'-.ling is.

arms, he was detained i almost a year, he was assaulted, tortured detained in poor .conditions, his eduction was disrupted, he was humuliated# I am of the opinion that to say the least the 'e *¹* conduct of the servants of the defendant was oppressive, arbitrary and unconctituti .n .1\* I have found t at this is a proper cxse where o:.ry' damages should be awarded to show the court's distaste for t\* ,'.s hind uf behaviour by the servants of the defendant. I ha.ve t.-.kun note ox the authorities referred to me by counsel for the plair.tiion quantum of damages. In the case of •<obert 3■ ^K. .>ebm y-. vj. ..ttorney General /l~98o/ HCB ⁶⁸ the plaintiff ..'•o one-time Man; ger in K'.drv. In Group o'f Industries UDC Director, .. former Deputy Minister in Uganda Government, . pelitic?....n and one time Jinja Municipal Councillor, was bod. ¹ ■,:? ,ae day, detained in a tiny congested and wet cell with no beddingB and no food, told to remove his shoes .v t to st-nd or squat, he was not told any reason for his .rro.rt ..nd • : not taken in ?.ny court of lav7. The plaintiff '. c.s a-::.rded general damages including ex... mplary ^dama ■: ^es ^o f 3: \*.c • ¹^D , 000/=

/27

In deciding on quebum of dimages, although there are some decided cases which can be used is guidelines, each case has to be considered on fits we facts. Such things like the treatment of the plaintiff after his arrest, the period of detention, his status in the society are among the valid considerations. Having taken all the efficiential into consideration I have found that the plaintiff a young wan and student was arrested and tortured and confined for almost a whole year, his permanent disability was essessment at 30%

in the chromotheses an avard of Shs.2,500,000/= . general dam not included; exemplary damages would be adequate compession.

In conclusion the plaintiff has proved his case sufficiently on $\gamma$ be ance of probabilities and consquently the defendant is liable to bim for damages for unlawful arrest false imprisonment, assault and coversion of his property. The following is the summary of the award. (1) a sum of $340.00$ , 150 has been awarded as special damages,

this include $\beta = 13.350/2$ cash which was converted by the defendant's new ats.

- a sum of Sus: 2,500,000/= awarded as general damages including (ii) exemplary and . - Interest $\sigma_{\text{th}}$ smoothl take as sum at the court rate from (iii) the date of filling the stit until payment in full, and interest on the part damages at the court rate from the date of judgement matil payment in full.

(v) Costs of this suit.

M. KIREJU

$J$ $U$ $D$ $G$ $E$ . $15/9/92$

$18/9/92$ Mr. Emeru for Plaintiff Plaintiff present. Mttorney General Absent Although notice of service is on the file Mrs. Betty Sensonga - Court Clerk Judgement delivered

M. KIREJU J U D G E 18/9/1992