[2024] UGHCCD 199

### THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT KAMPALA

#### (CIVIL DIVISION)

## MISCELLANEOUS CAUSE NO. 189 OF 2022

#### KISAKYE BYARUHANGA ROBERT ::::::::::::::::::::::::::::::::::::

$\mathsf{S}$

# **VERSUS**

- 1. ATTORNEY GENERAL - 2. M/S SMILEPLAST LTD - 3. PAUL OPIO - 4. OKELLO JOHNHENRY - 5. DETECTIVE FLORENCE 15 - 6. EMUJU THOMAS ::::::::::::::::::::::::::::::::::::

### **BEFORE: HON. JUSTICE ESTA NAMBAYO**

#### **RULING**

The Applicant, Kisakye Byaruhanga Robert, brought this application under **Article 50 (4)** $20$ of the Constitution, Sections 3, 4, 6, 8, 9 (1) (2a, b, c, i-iv), 10, 11 (1), (2) and 17 of the Human Rights (Enforcement) Act, 2019, Section 9 of the MCA, Section 33 of the **Judicature Act and Section 98 of the CPA,** against the Attorney General (AG), M/s Smileplast Ltd, Paul Opio, Okello John Henry, Detective Florence and Emuju Thomas (hereinafter referred to as the $1^{st}$ , $2^{nd}$ , $3^{rd}$ , $4^{th}$ , $5^{th}$ and $6^{th}$ Respondents respectively), seeking for declarations and orders of this court that: - $25$

- 1. The investigations/proceedings at Wandegeya Police station vide; Case Ref. No. 81/05/07/22 be stayed pending determination of matters regarding the abuse of the fundamental Human rights of the Applicant. - 2. The fundamental Human rights of the Applicant were abused as a result of the physical and Psychological torture arising from the harsh and unlawful arrest

**and detention of the Applicant by the Respondents in police custody at Wandegeya Police Station.**

- **3. The Jurisdiction in which the Applicant got arrested and detained by the Respondents at Wandegeya Police Station was illegal, and an abuse of legal** 35 **process, as a result of the trumped up charges of obtaining money by false pretence.** - **4. The institution of Uganda Police where the 5th and 6th Respondents work is not a debt collection agency, it was wrong for the said Respondents to enforce payment of the 2nd Respondents civil debt by arresting the Applicant.** - 40 **5. The Respondents, each and in their respective personal capacities be found liable for the acts of torture inflicted on the Applicant, and to face the consequences related to the abuse of the law in that respect.** - **6. The 1st and 2nd Respondents are vicariously liable for the actions of the 3rd, 4th , 5 th and 6th Respondents who acted as their agents and/or employees in the** 45 **course of their employment or engagement while arresting the Applicant, which resulted in an abuse of his fundamental human right and freedoms.** - **7. The 3rd and 4th Respondents be found liable for abuse of the professional code of conduct and standards of court bailiffs under the relevant laws, as a result of which the abuse of the fundamental Human Rights of the Applicant arose.** - 50 **8. As a result of the torture and illegalities in the criminal case, the Applicant be relieved/ acquitted of charges of obtaining goods by false pretence in relation to Case Ref No.81 /05/07/22 at Wandegeya police station.** - **9. The Respondents as provided by law to compensate the Applicant for the acts of abuse of his fundamental human rights.**

- 55 **10. The Respondents to restitute the Applicant to the original situation before the violation of his human rights and freedoms.** - **11. The Respondents to rehabilitate the Applicant to include the provision of medical and psychological care.**

**12. The Respondent to refrain from the continued violation of human rights and** 60 **freedoms of the Applicant.**

- **13. The Respondents to restore the dignity, reputation and rights of the Applicant and of persons closely connected to him.** - **14. A public apology by the Respondents to the Applicant, including acknowledgement of the facts and acceptance of responsibility.** - 65 **15. Criminal and other judicial and administrative sanctions against the Respondents for violation of the Applicant's human Rights.**

#### **16. The Respondents to guarantee non-repetition.**

#### **17. The Respondents to pay costs of this application**

The grounds for this application are premised on the affidavit of Kisakye Byaruhanga 70 Robert but briefly are that: -

- **a) There is a subsisting contract between the Applicant and the 2nd Respondent pursuant to which the Applicant was supplied goods by the 2nd Respondent.** - **b) Whereas the Applicant is aware of an unpaid balance of a sum of Ugshs. 35,000,000/= (Uganda shillings thirty-five million only), the 2 nd Respondent** 75 **claims Ugshs. 55,000,000/= (Uganda shillings fifty-five million only) a matter which just needed accounts reconciliation other than arresting the Applicant.** - **c) The 2nd Respondent arrested the Applicant for payment of the above sum, which arrest; the Applicant claims to have been illegal, high handed and**

**arbitrary, as it resulted into physical and psychological torture, hence an abuse** 80 **of his fundamental human right and freedoms.**

- **d) The 2nd Respondent caused the arrest of the Applicant through the 3rd and 4th Respondents who are court bailiffs who did so without a court order, hence an illegality.** - **e) The 3rd and 4th Respondents further involved the 5th and 6th Respondents; police officers who enforced the arrest to actualise the 2nd** 85 **Respondent's instructions without following legal jurisdiction, hence bias.** - **f) The 5th and 6th Respondents to involve themselves into the contractual affairs of the 2nd, 3rd and 4th Respondents acted as debt collectors, which is an illegality.** - 90 **g) All Respondents participated in the torture therefore jointly and severally liable for the acts, which liability ought to extend to each in their personal capacity as well.** - **h) The 1st Respondent as principal of the 3rd and 4th Respondents who are officers of court under the Judiciary, and 5th and 6th Respondents as employees of** 95 **government is vicariously liable for the abuse of the fundamental human right they inflicted upon the Applicant.** - **i) The 2nd Respondent is vicariously liable for the acts of the 3rd, 4th, 5th and 6th Respondents as its agents having instructed them to effect a debt collection by applying criminal proceedings.** - 100 **j) The Applicant suffered loss and damage as a result of the abuse of his fundamental human rights and freedoms by the Respondents who must be compelled to compensate him, because they are jointly and severally liable for the acts.**

- k) The criminal Case Ref No.81/05/07/22 at Wandegeya police station against the Applicant, cannot stand as a result of and abuse of the law and must therefore 105 be quashed. - **I)** That it is in the interest of Justice that this application is allowed with costs.

The Respondents filed their affidavits $-$ in - reply opposing this application.

# **Background to the application.**

The brief background to this application is that the Applicant and the 2^nd Respondent 110 entered into business transactions where the 2^nd Respondent would deliver items to the Applicant for sale and he would then pay in instalments.

Along the way, the Applicant defaulted on the payments. The 2^nd Respondent then hired the 3^rd and 4^th Respondents, being court bailiffs, to collect on its behalf the outstanding amount from the Applicant. In the process of recovery of the money, the $3^rd$ and $4^th$ 115 Respondents involved the 6^th Respondent, who is a Police Officer. The 6^th Respondent arrested the Applicant on charges of obtaining goods by false pretence and took him to Wandegeya Police Station, where the 5^th Respondent, who is a supervisor to the 6^th Respondent sits.

It is the Applicant's claim that the $3^{rd}$ , $4^{th}$ , $5^{th}$ and $6^{th}$ Respondents caused his arrest 120 without a court order and tortured him while in Police custody and only released him on Police bond on the very day of his arrest upon a complaint raised by his Advocate. That the 3^rd to 6^th Respondents violated the Applicant's rights and he now wants this court to stay the investigations in the case against him at Wandegeya Police Station pending 125 disposal of this application.

#### **Legal representation**

Learned Counsel Kayondo George appeared for the Applicant while Learned State Attorney Mugisa Lydia was for the 1^st, 5^th and 6^th Respondents, Counsel Gideon Mbaride was for the 2nd Respondent and Samuel Ssebaduka was for the 3rd & 4 th Respondents.

130 Written submissions were filed by counsel for all parties as directed by Court.

# **Issues framed for trial are: -**

- 1. Whether the Applicant was subjected to torture - 2. If so, whether the Fundamental Human Rights of the Applicant were violated. - 3. Whether the 1st Respondent is vicariously liable for the acts of the 5th and 6th 135 Respondents and; - 4. Whether the 2nd Respondent is vicariously liable for the acts of the 3rd and 4th Respondents? - 5. What remedies are available to the parties.

## **Resolution**

# 140 **Issue 1: Whether the Applicant was subjected to torture.**

Counsel for the Applicant submitted that the Applicant suffered both physical and psychological torture because he was treated as a thief during arrest from his place of business at Nansana, on the way and while at Wandegeya Police Station. He referred this court to paragraphs 13 and 14 of the Applicant's affidavit in support of the application 145 and contended that the Applicant's averments are a clear manifestation of the Respondents' intention of obtaining information or a confession from the Applicant by intimidation or coercing him to admit that he owes the 2nd Respondent an exorbitant amount of money against his will. That the Respondents had intentions and threatened to inflict physical pain to the Applicant by way of further detention in custody which 150 amounts to torture under the Prevention and Prohibition of Torture Act, 2012.

Counsel further relied on annexure 'A-F' to the Applicant's affidavit in support of the application (the agreement that the Applicant signed with the 2nd Respondent) and a police bond form marked "G" as evidence of the arrest and detention of the Applicant at Wandegeya Police station. He prayed that this court finds that the Applicant was tortured. In reply, the Learned State Attorney representing the $1^{st}$ , $5^{th}$ and $6^{th}$ Respondents 155 submitted that the Applicant has not furnished proof of his claims. He referred to paragraphs 12 and 15 of the Applicant's affidavit in support of the application and averred that the evidence that the 5^th and 6^th Respondents have furnished in this Court are that the Applicant went to Wandegeya Police Station on his own volition in company of the 3^rd and 4^th Respondents who came to be known as Court bailiffs. He relied on 160 paragraphs 4 and 5 of the respective affidavits in reply of the 5^th and 6^th Respondents.

- He cited the case of Issa Wazemba -v- Attorney General, CS No. 154 of 2016, where Court relied on the plaintiff's evidence of the amputation of his leg, evidence from a medical expert that showed the cause and effect of the injuries, among others. That the court did not merely take the plaintiff's word. That in the *Wazembe case (supra)*, Justice 165 Ssekaana went ahead to cite the case of *Ireland -v- United Kingdom ECHR Application* **No.** 5310/71 where court explained, inter alia, that in deciding whether certain treatment amounts to torture, the court takes into account factors of each individual case, such as the duration of treatment, its Physical and mental effects, age, sex health and vulnerability of the victim. The Learned State Attorney emphasized that in the instant case, there is no 170 proof of the duration of the alleged treatment, its physical or mental effects on the Applicant and that it is not enough for the Applicant to merely claim that he was tortured as torture is a serious allegation that should not be taken lightly. That in the case of **Issa** *Wazemba (supra)*, Justice Ssekaana further held; - That the courts should apply a very strict test when considering whether there has been 175 torture or inhuman or degrading treatment. Only the worst examples are likely to satisfy the test.'

The State Attorney also relied on the cases of *Lucas Marisa -v- Uganda Breweries Ltd* [1988-1990] I-ICB at Page 132 cited in Rights Trumpet & 2 Others –v- AIGP Asan 180 **Kasingye & 5 Others & Mucunguzi Abel & 9 Others –v- Attorney General & 2 Others (Consolidated MC No. 17 & 3 Of2017)** and invited this court to resolve that the Applicant was not tortured by the 5th and 6th Respondents.

Counsel for the 2nd Respondent and Counsel for the 3rd and 4th Respondents submitted that there is no evidence to show that the 2nd, 3rd and 4th Respondents tortured the

Applicant. Counsel for the 3rd and 4th 185 Respondents relied on the case of case of **Ireland – v-United Kingdom (supra),** where court held that;

"in deciding whether a certain treatment amounts to torture, the courts take into account the factors of each individual case such as the duration of the treatment, its physical and mental effects, age, sex, health and vulnerability of the victim."

190 Counsel also cited the case of **Paul Baguma Mugalama –v- The Uganda Revenue Authority HCCS No. 93 of 2014,** where it was held that;

"courts should apply a very strict test when considering whether there has been a breach of an individual's freedom from torture or degrading treatment."

That in this case, the Applicant has not presented any evidence to show that he was tortured by the 3rd and 4th 195 Respondents. Counsel prayed that this court finds that this application was brought out of malice and that it should be dismissed from court with costs.

## **Analysis**

**Black's Law Dictionary, 10 th Edition** defines torture as 'the infliction of intense pain to 200 the body or mind to punish, to extract a confession or information, or to obtain sadistic pleasure.'

**Under S.2 (1) of the Prevention and Prohibition of Torture Act, 2012**, torture is defined as;

"any act or omission, by which severe pain or suffering whether physical or mental, is 205 intentionally inflicted on a person by or at the instigation of or with the consent or acquiescence of any person whether a public official or other person acting in an official or private capacity for such purposes as—

(a) obtaining information or a confession from the person or any other person;

(b) punishing that person for an act he or she or any other person has committed, or is 210 suspected of having committed or of planning to commit; or

(c) intimidating or coercing the person or any other person to do, or to refrain from doing, any act."

**Under the 2 nd schedule of the Prevention and Prohibition of Torture Act, 2012,** it is stated that torture maybe-

215 (i) physical,

- (ii) mental or psychological and/or; - (iii) pharmacological

It is provided that Physical torture includes systematic beating, head banging, punching, kicking, striking with truncheons, rifle butts, jumping on the stomach; food deprivation or 220 forcible feeding with spoiled food, animal or human excreta; electric shocks; cigarette burning, burning by electrically heated rods, hot oil, acid, the rubbing of pepper or other chemical substances on mucous membranes, or acids or spices; the submersion of the victim's head in water or water polluted with excrement, urine, vomit or blood; being tied or forced to assume a fixed and stressful body position; rape and sexual abuse, including 225 the insertion of foreign bodies into the sexual organs or rectum or electrical torture of the genitals; mutilation, such as amputation of the essential parts of the body such as the genitalia, ears, tongue; dental torture or the forced extraction of the teeth; harmful exposure to the elements such as sunlight and extreme cold; or the use of plastic bags and other materials placed over the victim's head with the intention to asphyxiate.

While mental or psychological torture includes; blindfolding, threatening the victim or his or her family with bodily harm, execution or other wrongful acts; confining a victim incommunicado, in a secret detention place or other form of detention; confining the 235 victim in a solitary cell or in a cell put up in a public place; confining the victim in a solitary cell against his or her will or without prejudice to his or her security; prolonged interrogation of the victim so as to deny him or her normal length of sleep or rest; maltreating a member of the victim's family; witnessing the torture sessions by the victim's family or relatives; denial of sleep or rest; shame infliction such as stripping the 240 victim naked, parading the victim in a public place, shaving the head of the victim and/or putting a mark on the body of the victim against his or her will.

The Applicant in support of this application gave evidence about the manner in which he was arrested and how he was treated while at Wandegeya Police Station, before being released on police bond. He states under paragraph 12 of his affidavit in support of the 245 application that he was arrested for failure to pay the outstanding balance that he owed the 2nd Respondent and that he was accused of obtaining goods by false pretense. That upon arrest he was bundled on a Police van where he hit his arm and suffered physical injury. No evidence of injury was presented to court to show that the Applicant suffered physical injury. There is also no evidence to show that he suffered mental/psychological

- 250 injury/torture within the meaning of the Prevention and Prohibition of Torture Act, 2012. Section 101(1) of the Evidence Act, Cap 6, provides that whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts do exist.

In this case, having established that there is no evidence to show that the Applicant 255 suffered physical and/or emotional/psychological injury, I find that the Applicant was not subjected to torture.

## 260 **Issue 2: Whether the Fundamental Human Rights of the Applicant were violated.**

The Applicant states in his affidavit that he was arrested for failure to pay the outstanding balance for the goods that he obtained from the 2nd Respondent and that upon arrest he was accused of obtaining goods by false pretence and his Advocate was with him at Police when he was released on police bond. This means that he was aware of the reason 265 for his arrest, as required under Art. 23(3) of the 1995 constitution of Uganda which provides that a person arrested, restricted or detained shall be informed immediately, in a language that the person understands, of the reasons for the arrest, restriction or detention and of his or her right to a lawyer of his or her choice.

- The Applicant also says that he was released on police bond on the very day he was 270 taken to police after the intervention of his Advocate. This means that he was released within 48 hours after his arrest. This was in line with Art. 23 (4)(b) of the Constitution which provides that a person arrested or detained upon reasonable suspicion of his or her having committed or being about to commit a criminal offence under the laws of Uganda, shall, if not earlier released, be brought to Court as soon as possible but in any 275 case not later than forty-eight hours from the time of his or her arrest. - In regard to the claim that Wandegeya Police Station was not the right Police for the Applicant's detention, Art. 23(2) of the constitution provides that a person arrested, restricted or detained shall be kept in a place authorised by law. All that the law requires is that if anyone is to be detained upon arrest, he or she should be detained in a place 280 authorised by law. Wandegeya Police Station is a place authorised by law for detention. I find no human rights violation by the Applicant being detained at Wandegeya Police Station.

In view of the above therefore, I find that there was no violation of the Applicant's Fundamental Human Rights. I also find that the 3rd and 4th issues don't arise.

285 Therefore, I find no merit in this application and do hereby dismiss it from court with costs.

Page **11** of **12**

I so order.

**Dated, signed and delivered by mail and uploaded on ECCMIS at Kampala on this 20th day of November, 2024.**

**Esta Nambayo**

**JUDGE 20th /11/2024.**