[1998] UGHCCD 2

# THE REPUBLIC OF UGANDA

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## IN THE HIGH COURT OF UGANDA AT KAMPALA

### HIGH COURT CIVIL SUIT NO. 12 OF 1996

DEO KIGOZI PLAINTIFF

#### VERSUS

UGANDA COMMERCIAL BANK DEFENDANT BEFORE: THE HON. JUSTICE V. F. MUSOKE-KIBUUKA JUDGMENT:

The plaintiff, Deo Kigozi, instituted this action, seeking, from the defendant, special damages for loss of income and general damages for false imprisonment and for assault occasioning bodily harm.

There are only two issues for determination. They are:-

- (a) whether the plaintiff has a cause of action against the defendant; and - if (a) is in the affirmative, what remedies are available to the (b) defendant, if any?

The events leading to the institution of this case, as can be ascertained from the evidence of below: -<tie^various witnesses, whose testimony was accepted by this court, may be summarised as

On 7th December, 1994, the plaintiff, Mr. Deo Kigozi, entered into an agreement with one

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Sempa was the vendor. The consideration was shs. 11/= million. The plaintiff paid cash amounting to shs. 9/ = million upon the execution ofthe agreement. The remaining shs. 2/ = million was to be paid by the plaintiff to Rashid Sempa within a period of four months from the date of the execution of the agreement. The vendor released the vehicle to the plaintiff but kept the vehicle's registration card (log book) as security for the balance of shs. 2/ = million. Rashid Sempa PW2. The agreement was for the sale of motor vehicle, Toyota l^ierce, *i* Minibus, registration Number, 849 UAQ. The plaintiff was the purchaser while Rashid

Immediately after obtaining Toyota Hierce 849 UAQ, the plaintiff employed one John Martin Kiggundu. PW3, as driver of that vehicle. The vehicle started working as a taxi running daily between Kampala and Hoima. It was also doing some town running in Kampala in the mornings and evenings. It worked six days a week and was earnings some 84,000/= from the journey to and from Hoima and some 17,000/= from the town running, daily on average.

Bad luck appears to have caught up with the plaintiff on 17th January, 1995. Prior to that date, the plaintiff had informed the driver of vehicle 849 UAQ, PW3, that he would be Mbarara. PW3 was, therefore, to deliver the daily collections to the plaintiff's close friend and neighbour called John Bosco Ssemwogerere, who would be responsible for the plaintiff's vehicle while the plaintiff was away at Mbarara. John Bosco Ssemwogerere was a senior suspicion of having embezzled some shs. 12.56 million belonging to the defendant. proceeding to Mbarara on a business trip. He intended to spend some two weeks at officer of the defendant bank. Ssemwogerere was arrested on 16th January, 1995, on

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to him. They were travelling in a vehicle bearing the colours and to logo of the defendant. They ordered PW3 to drive vehicle 849 UQA to the defendant's headquarters via Nkurumah Road. Upon arrival at the defendant's premises, one of the men addressed one of the people who were standing on the steps leading into the bank in the following words, At about 10.00 a.m. on 17th January, 1995, while PW3 was in the^ car park in Kampala *i* waiting to load passengers for Hoima, five men, including John Bosco Ssemwogerere, came

#### "Manager, we have brought the vehicle."

PW3 parked the vehicle in the defendant's parking lot and surrendered the keys to one of the men who had ordered him to drive it there.

Upon returning to Kampala from Mbarara, the plaintiff learned of the arrest and retention of his vehicle. March, 1995, he and PW2, Rashid Sempa, went to the defendant's offices to try to secure the vehicle from the investigation office of the defendant. Instead, the plaintiff was himself arrested and was also beaten with a cable twice across his shoulders by one officer in that office, by the name of Christopher Uchamgui, DW1, now AIP, and stationed at Wobulenzi police station. The plaintiff was treated at Mulago hospital for the assault and later examined by a police surgeon at CPS in Kampala. The vehicle was eventually returned to the plaintiff on 3rd May, 1995, after a period of nearly four months from the time of its impounding. He took some time investigating what might have happened. On 10th

At the hearing of this case, the plaintiff presented evidence from himself and three other witnesses. PW2 was Rashid Sempa, PW3 was John Martin Kiggundu and PW4 was Monica Asiimwe, wife to the plaintiff. Their evidence is largely reflected in the summary which I

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have set out above.

The defendant, in his written statement of defence,denied any liability. In particular, the defendant denied that the plaintiff was ever arrested, assaulted or falsely imprisoned. The defendant also denied that the impounding and detention of the plaintiff's vehicle was carried out following its instructions or by its employees or agents.

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At the trial, the defendant adduced evidence from one defence witness, DW1 in the names of Christopher Uchamgui, AIP. His evidence was that John Bosco Ssemwogerere was a suspect involved in a cash shortage discovered at the UCB **Nkurumah** Branch on 16th January, 1995 Ssemwogerere was arrested on the same day. According to DW¹ Ssemwogerere revealed that he had used part of the missing money to purchase a taxi working along the Kampala Ssemuto route. Ssemwogerere, DW1 said, requested that if permitted he would lead DW1 to the Taxi Park in Kampala and show him the vehicle or find why motor vehicle 849 UAQ was impounded and kept locked up in the defendant bank. According to DW1, the key of the vehicle was kept with the security officer of the bank, one Mboizi. DW1 also told this court that he charged the plaintiff with being an accessary after the fact of commission of a felony contrary to section 377 of the Penal Code Act because he had received information that the plaintiff had assisted Ssemwogerere to move away from police bond. Nakulabye to Ssemwogerere's other home at Nansana. He later released the plaintiff on a a buyer to purchase it so as to enable him refund the missing money to the bank. That was vehicle. The vehicle was a Toyota Hierce, registration number 439 UAQ which was

released Ssemwogerere on a police bond too. He later located him at Nakulabye where he was lying in bed still sick. But Ssemwogerere later disappeared. Upon cross examination, DW1 Stated that he took no statement from Ssemwogerere. That i was because Ssemwogerere appeared to him to be suffering from severe malaria. And that was in spite of the fact that Ssemwogerere had been arrested the previous day. DW1

It does appear to me from the evidence before me that the investigation officers who believe the evidence of DW1 that Ssemwogerere told him that he had purchased that vehicle. In DWl's own words. Ssemwogerere told him that had purchased motor vehicle, registration No. 439 UAQ, which was working on Kampala Ssemuto route and not motor vehicle 849 UAQ. which was running along the Kampala/Hoima route. There is no logical explanation why the two could have been mixed up. The likely explanation is that the defendant was so anxious to recover the missing money and the investigation officers were so overzealous to produce a motor vehicle allegedly purchased by the suspect, Ssemwogerere, with the alleged missing money, that the plaintiff's vehicle was impounded instead. The other possible and even more likely explanation is that the defendant merely suspected that Ssemwogerere might had bought a vehicle with the alleged missing money and the investigation officers accordingly forced Ssemwogerere to take them to the tax park and show them that vehicle. Under that kind of pressure, Ssemwogerere showed them the plaintiff's vehicle whose registration number obviously did not correspond with the registration number of 439 UAQ, which Ssemwogerere had given to the investigators. There is no surprise, therefore, that Ssemwogerere. For none did exist. The plaintiff produced concrete evidence of ownership impounded vehicle 849 UAQ had no justifiable cause for doing so. I do, of course, not Ssemwogerere and even DW1, subsequently failed to tress the seller of that vehicle to

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¹ of the vehicle tb D^Vl on 10th March, 1995, still, the vehicle was retained until 3rd May, I 1998 without the slightest justifiable cause.

I, therefore, conclude upon the basis of the evidence adduced before me, that motor vehicle 849, UAQ did legally belong to the plaintiff when it was impounded on 17th January, 1995, by the agents of the defendant. I am also quite satisfied that the motor vehicle in question remained in the custody of the defendant from 17th January, to 3rd May, 1995. As, a result of that fact, the plaintiff lost income in the form of daily earnings from the taxi business in which the motor vehicle was involved.

From the evidence before me, I am equally satisfied that on 10th March, 1995, the plaintiff was arrested and detained in the investigation office of the defendant at the defendant's premises for the whole day. The fact that the plaintiff was released on a police bond as Exh. P2 clearly shows, bears undisputable evidence of that fact. When the plaintiff requested for permission to go out and purchase a drink after being detained for well over seven hours, he was brutally assaulted by DW1 using a cable and stating that the plaintiff was too proud and needed to be taught a lesson.

On the basis of the evidence laid before me, I do not find any reasonable ground or suspicion justifying the arrest or detention of the plaintiff. Makerere University vs. Daudi Kasiringi (1977) HCB, 25, M'bin vs. Dver [19671 E. A. 315. The plaintiff went to the defendant's investigation office, on 10th March, 1995, all by himself. He took with him the vendor of the vehicle, PW2, who talked to the investigators first and gave them all the relevant documents in relation to the ownership of the motor vehicle in question. I do not believe the

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plaintiff had moved Ssemwogerere from Nakulabye to Nansana. I must add that, generally, impressed by the plaintiff and his three witnesses all of whom gave me the impression of being very truthful. It, therefore, appears to me that that piece of evidence was an after thought just as the charge of being an accessary after the fact of a commission of a felony also appears to have been. But even if the plaintiff had assisted Ssemwogerere to move from Nakulabye to Nansana, it would be unreasonable to conclude that he had done so in order sick state at Nakulabye. Indeed, DW1 was forced to extend Ssemwogerere's police bond at Ssemwogerere's bedside at Nakulabye. It is also on record that Ssemwogerere had a home at Nansana. At Nansana, Ssemwogerere was a neighbour of the plaintiff. I cannot see how a person who assists a sick neighbour to move to his own home can reasonably be said to be assisting that person to escape. ' evidence of DW1 that the plaintiff had hidden or assisted Ssemwogerere to escape or that the to aid Ssemwogerere to escape. DW1 himself stated that he saw Ssemwogerere in a very DW1 did not appear to me to be a truthful witness. On the other hand, I was quite

Considering the entire circumstances of this case, I find it quite irresistibly to come to only Toyota Hierce registration No. 849 UAQ, and arrested the plaintiff and also assaulted him, whoever employed them or on whoever's behalf they acted must be vicarious liable for their actions. There is no dispute as to whether those officers were acting within the scope of their employment. Both parties seem to be agreed on that. one conclusion. That is that the officers who wrongfully impounded the plaintiff's vehicle, on 10th March, 1995, are themselves liable for those tons against the plaintiff. Subsequently

This brings me to the first issue for determination. That is whether the defendant is

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vicariously liable for those tortious actions of the officers of its investigation branch.

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According to learned counsel, M/s Rukyarekere, the defendant is not vicariously liable. According to her those officers were CID officers carrying out work under the Police Act employed those officers. Learned counsel cited the authorities of Muwonge vs. Attorney General [1967] E. A. 17, where the principle of vicarious liability was expounded to the effect that an employer was liable as master for the actions of the employee even though the actions were wanton, unlawful and unjustified; and Nambi Kibirige vs. Attorney General (1990) HCB 133. where it was held that the key relationship which must be established was that of ^a master/servant failing of which, the principle can not be relied upon. **^f (7** and the right person to sue would have been the Attorney General and not UCB which never

On the other hand, the plaintiff through his counsel, Mr. Lwanga, argues that the defendant Nakadama. C. A. No. 3 of 1973 reported in (1973) ULR, 58, which is to the effect that, "where a person delegates to another, not a servant, to do something for his behalf or for the joint benefit, of himself and that other person, he will be liable for the negligence of the other person in the performance of that task or duty." is vicariously liable. He relies upon the authority of K. Fivandas and Co. Ltd, vs.

According to Black's Law Dictionary, sixth Edition, at page 1084, Vicarious liability is, "The imposition of liability on one person for the actionable conduct of another, based solely of another for example the liability of an employer for the acts of an employee, or a Principal for torts and contracts of an agent." on a relationship between the two persons. Indirect or imputed legal responsibility for acts question of fact. But in the case of an employer, in general, the relationship imports the existence of power in the employer not only to direct what work the servant must do, but also the manner in which the work is to be done. In Simmons vs. Heath Laundry Company (1910) 1KB. 543. Backley L. J., Summed up the relationship of master and servant in the following words, 11 "a servant is a person subject to the command of his master as to the manner in which he shall do his work. " And in Bagnall vs. Levinstein Ltd. (1907) IKB 531, Lord Collins, MR. put the test in the following words, "The root of the matter is that each case must be decided in view of that which the person whom it is sought to treat as a workman was employed to do." It appears to me that whether or not, in any given case, the relationship oft master and i servant or principal and agent or a relationship of furthering shared interests, exists is a

It also appears to me that the master/servant relationship transcends the mere fact of being under the formal payment of another person and can not be restricted merely by the fact of appointment or payment of remuneration or wages or powers of dismissal or general control. For according to Halsbary's Laws of England. Vol. 25. paragraph 871 at pages 447 to 448. otherwise than by wages or although employed only at will a person may be a servant of a different master and a contract of executive personal service does not necessarily establish the relationship of master and servant." "a person may be the servant of another although a third party has the power of appointing or dismissing him or of requiring his dismissal or has powers of direction and control in regard to his work, or pays his wages. A person mav be a servant although remunerated

Still further the relationship of master and servant does not appear to me to be always

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straight. damages for negligence from the employer of an independent contractor. **¹ ¹⁰ L** Thus in Honey will And Stein Ltd. Vs. Lankin -Bros (London's Commercial I Photographers) Ltd. [1933] ALL E. R. 77, the owner of a theatre was entitled to recover

The relationship of master and servant can also be assumed especially where evidence of interference in relation to the manner in which the work is to be executed existed. Thus an employer who personally interferes with the contractor or his servants, and in fact directs the manner in which the work is to be done, places himself in the position of a master and is, therefore, responsible for any injury which may be occasioned to a third person while the contractor is carrying out the employers' direction. Bugest vs. Gray (1845) I. C. B. 578 and Hardaker vs. Idle District Council 2 Q. B. 72.

Thus bearing in mind the principles and tests set out above, the plaintiff in the instant case, in order to establish the defendant's liability, must show that the officers who manned the UCB investigation office were the servants or agents of the defendant or that there was a delegation by the defendant to them to do something on the defendant's behalf or for their joint benefit or that the defendant interfered or controlled and directed the manner in which these officers carried out their work.

The evidence on record by DW1 is that he and other CID officers were "Seconded" to the defendants investigation office' in order to carry out investigations of frauds in the bank and operations were restricted to bank work. They obviously received instructions from the bank as to what to investigate. All their implements were provided by the bank. That included eventually to develop the investigation branch into a fully fledged CID branch. Their

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When the plaintiff's vehicle was impounded according to PW3, there were four men involved in the operation apart from Ssemwogerere. DW1 says that of the four, there were only two CID officers. Those were himself and Dt. Cpl. Tukei. Who were the others? Certainly, they were officers of the defendant.

When the vehicle was brought to the bank, according to PW3, one of those who had impounded it reported to a fat short man who was standing on the bank's steps in the words, "Manager, we have brought the vehicle". That, would appear to be an indication that the investigation officers were operating under the instructions, direction and control of the defendant. The vehicle, when impounded for nearly four months, was kept in the bank's godown. The bank was not a police post where such vehicle could be exhibited. The fact that investigators were solely answerable to the police then the vehicle should have been sent to kept, according to PW4, by the manager, Nkurumah Branch, where Ssemwogerere had been working. That is where the plaintiff, PW4, DW1 and others collected it from on 3rd May, 1995 when the vehicle was released. When the letter from the DPP was obtained by DW1 and the plaintiff and PW4 presented themselves to collect the motor vehicle, DW1, was not in position to release it. He told them that there was need for prior authorization by the head May, The plaintiff and PW4 had to return the following day when the head of the 1995. a police station such as CPS which was not far from the bank. The key of the vehicle was it was kept there for that long shows the apparent interest the bank had in it. If the of the legal department of the bank before he could release the vehicle. That was on 2nd

vehicle's key. I cannot find any stronger evidence of control and direction or, at the very least, interference in the manner in which the investigation officers, whom the defendant claims were not his employees, carried out their duties in relation to this particular case. It appears to me that the investigation officers were working under the firm control of the defendant whose sole purpose was to recover the money allegedly lost by Ssemwogerere. The investigation office of UCB was a very specialised office, it was very different from Director of CID, I think that that was only as far as police hierarchy required but for practical purposes, he was answerable to, a large extent, to the bank's management since, in his very words, he had been seconded to the bank's investigation office. legal department was present^ On that day, DW1 obtained the required authorization and the I vehicle was eventually released after collecting the manager, Nkurumah Branch, to bring the extent, directed its operations. Although DW1 says that he remained answerable to the ocher CID offices. It entirely belonged to the bank which gave it work and, to a large

Lastly, the fact that the head of the legal department of the bank when giving his authority to release the vehicle apologised, in the following words, to the plaintiff and PW4, ¹¹You will final touch to this case. In reality, the Manager was admitting through that apology that the bank felt responsible for what had happened to the plaintiff. excuse us for what has happened. We have no problem with releasing the vehicle", adds a

In light of the principles I set out above, and in light of the evidence on record, I think that the justice of this case requires, at the very minimum, a finding that the investigation officers operation involved in this case, it would also be proper to assume that even though the were agents of the defendant. Owing to the major role played by the defendant in the entire

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defendant• d|d not appoint the CID officers or paid their remunerations, apart from allowances, a master servant relations existed since the officers were seconded to the carried out, at least as far as the instant case was concerned. Lastly, even if the CID officers acted independently in executing the duties of the defendant's investigation office, still the defendant had a considerable amount of interest and benefit as the police itself did. Thus, on the basis of Fivandas and Co. Ltd, vs. Nakadama C. A. No 3 of 1973 (ULR. 58) the defendant cannot escape from liability. defendant and he exercised considerable control in relation to how their operations were

I, accordingly, answer issue number one in the affirmative. The plaintiff has a cause of action against the defendant. The defendant is liable for the actions of the officers in its investigations branch. The plaintiff thus has a cause of action against the defendant.

plaintiff is entitled to recover both special and general damages in this case. The second issue relates to the remedies available to the plaintiff. It is my view that the

Regarding special damages, the plaintiff claims that he lost income amounting to shs. 9.090,000/ = . The evidence of PW3 was that he used to take to the plaintiff shs. 85,000/ = fuel, hire blockers and to wash the car all of which used to cost some 63,000/= daily on town service. In the circumstances, I am prepared to accept the evidence of PW3, who gave the plaint are average. This evidence was not challenged. The 9,090,000/= claimed by the plaintiff in on a daily basis for six days in a week. The rest of the daily earnings were used to purchase separation of income from the Kampala/Hoima route and that from the morning and evening based upon calculations which were contradicted by PW3. That is the

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of 89 days. The days cover the period from 17th January to 3rd May, 1995, taking six days in each week. The special damages will amount to 85,000 x 89= 7,565,000/ = . me the impression of having told this court the truth in that regard. The plaintiff will, therefore, recover special damages for loss of income of shs. 85,000/= each day for a total

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The plaintiff is also entitled to recover general damages against the defendant as follows:

- (a) shs. 2,000,000/= general damages for inconveniences arising from the impounding of his vehicle for the period in question; - (b) shs. 500,000/= for wrongful arrest and detention; and - shs. 500,000/= in respect of assault while under detention. **(c)**

I accordingly enter judgment for the plaintiff and make the following orders in favour of the plaintiff:

- (a) an order awarding shs. 7.565,000/= as special damages; - (b) an order awarding shs. 3,000,000/= as general damages; - **(c)** the date of filing this suit to the date of payment in full; and an order awarding interest, at court's rate on (a) and (b) above from

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an order awarding the costs of this suit to the plaintiff. $(d)$

V. E. MUSOKE-KI UKA

JUDGE.

$23/10/98$

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## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA HIGH COURT CIVIL SUIT NO. 12 OF 1996

DEO KIGOZI ......................................

## **VERSUS**

UGANDA COMMERCIAL BANK .................... DEFENDANT (BEFORE THE HON. JUSTICE V F MUSOKE-KIBUUKA)

## $D \ E \ C \ R \ E \ E$

This suit coming this day for final disposal before His Lordship V. F. Musoke-Kibuuka in the presence of Nsubuga E. Mubiru for the plaintiff and M. Sekatawa for the defendant it is ordered and decreed that the defendant pays:-

$a.$ Ushs. $7,565,000/$ = in special damages.

$b$ . Ushs. $3,000,000/=$ in general damages.

interest on (a) and (b) above at Court's rate $\mathbf{c}$ . from date of filing the suit to date of payment in full.

It is further ordered and decreed that the defendant pays costs of the suit.

Given under my hand and the seal of the Court this day December 1998. $of$

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EXTRACTED BY: M/S NSUBUGA-MUBIRU & CO. ADVOCATES & SOLICITORS, PLOT 4 KIMATHI AVENUF, p. O. BOX 14299, KAMPALA.